Rand Paul proposes lie detector tests. TRANSCRIPT: 9/6/2018, All In w Chris Hayes.

Guests: Richard Clarke, Cory Booker, John Kerry, Rebecca Traister, Vanita Gupta

Show: ALL IN with CHRIS HAYES Date: September 6, 2018 Guest: Richard Clarke, Cory Booker, John Kerry, Rebecca Traister, Vanita Gupta

(BEGIN VIDEO CLIP)

CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.

UNIDENTIFIED FEMALE: Mr. President, who wrote the op-ed?

HAYES: The hunt for the resistance within is on.

UNIDENTIFIED MALE: Who`s in charge of the White House?

HAYES: Tonight the President is reportedly reviewing all the denials from his top staffers.

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: I think it`s a disgrace.

UNIDENTIFIED FEMALE: It could be someone in the West Wing.

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: It`s just -- it could be.

HAYES: As a high profile Democratic Senator says it`s time for the 25th Amendment. Then --

SEN. JOHN CORNYN (R), TEXAS: -- bring for contempt

SEN. CORY BOOKER (D), NEW JERSEY: Bring it. Bring it.

CORNYN: So I would correct the Senators statement, there is no rule. There is clearly a rule that applies.

BOOKER: Mr. Chairman, bring the charges.

HAYES: Another Democratic insurrection.

BOOKER: I stand by the public`s right to have access to this document.

HAYES: Tonight, what we are learning from the Kavanaugh e-mails the Republicans didn`t want you to see.

SEN. KAMALA HARRIS (D), CALIFORNIA: I think you`re thinking of someone you don`t want to tell us.

HAYES: When ALL IN starts right now.

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HAYES: Good evening from New York I`m Chris Hayes. It is hard to imagine a more humiliating experience for the President of the United States than having someone who works for him and underling publicly proclaim on the opinion page "The New York Times" that he is not in charge of the federal government, that the emperor in effect has no claws. The President exploded with rage over the op-ed by an anonymous senior administration official whose author claims to be part of an internal resistance protecting the country from the danger posed by its president.

After a series of tweets including one calling on The Times to turn the author over to the government for "national security purposes," the President ignored reporter`s questions while leaving the White House for a rally tonight in Montana.

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UNIDENTIFIED MALE: Who`s in charge of the White House? Mr. President, did you find out who wrote the op-ed?

UNIDENTIFIED FEMALE: Who wrote it Mr. President?

(END VIDEO CLIP)

HAYES: But behind the scenes, the President is reportedly raging about the traitors in his midst closely tracking the statements by senior aides denying having written the op-ed. According to CNN, those denials are being printed out and delivered to the president as they come in, though the White House disputes that report. Today, more than two dozen top administration officials including the vice president United States and members of the president`s cabinet have denied being the anonymous author plus the First Lady, the President`s own spouse although if you read her carefully it`s not explicitly a denial.

But none of those denials are worth the paper they`re written on. This image has been circulating online from the front page of The Wall Street Journal in June 1974. W. Mark Felt says he isn`t now nor has he ever been Deep Throat. Of course Mark Felt was Deep Throat as he revealed decades later. Whoever wrote the op-ed is not going to fess up after one day. While the White House condemned what it says was "the media`s wild accession the identity the anonymous coward, Senator Rand Paul, the great libertarian hope proposed forcing everyone with a security clearance at the White House to take a lie-detector test to figure out who did it. Other Republicans called the author to be exposed and ousted.

REP. KEVIN MCCARTHY (R), CALIFORNIA: This man is a coward. If it`s a man or woman or if it isn`t -- is it really someone. I agree with the President. I think it is a real problem that they should come forward and say who this.

REP. PAUL RYAN (R-WI), SPEAKER OF THE HOUSE: The person who works in the administration serves at the pleasure of the President. It`s a person who obviously is living in dishonesty. If you`re not interested in helping the president, you shouldn`t work for the president as far as I`m concerned.

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HAYES: Other GOP lawmakers had a very different reaction which was in effect what else is new.

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SEN. JEFF FLAKE (R), ARIZONA: There wasn`t much new information there but all of us have said for a long time that I`m glad they`re people who are willing particularly those publicly like Jeff Sessions to push back.

SEN. BEN SASSE (R), NEBRASKA: It`s just so similar to what so many of us hear from senior people around the White House you know, three times a week so it`s really troubling and yet in a way not surprising.

SEN. BOB CORKER (R), TENNESSEE: This is what all of us have understood to be the situation from day one. I understand this is the case and that`s why I think all of us encourage the good people that are around the president to stay.

(END VIDEO CLIP)

HAYES: Well, yes, the President is off his rocker. We`ve known that forever. It`s true the op-ed and Bob Woodward`s a new book have not really taught us anything new about the President`s character and behavior. That is true. It was almost a year ago you may recall that very same Senator Corker publicly called the White House an adult day care center. Well, Corker and his colleagues have apparently been willing to live with this state of perpetual crisis, deep constitutional Democratic crisis because of what they get out of it. "Effective deregulation, historic tax reform and a more robust military as the op-ed`s author put it." And Brett Kavanaugh nominated to the U.S. Supreme Court.

I`m joined by someone who knows a thing or two about blowing the whistle on the administration in which he served. Richard Clarke, former Counterterrorism Advisor to the Bush Administration and Host of the Future State podcast which debuts this coming Monday. Richard, you were inside an administration that you had deep disagreements with. You worked on the inside for a long time then eventually came forward and publicly with your criticisms. What do you think of this op-ed given your experience?

RICHARD CLARKE, FORMER WHITE HOUSE COUNTERTERRORISM ADVISOR: Well, Chris I think the point here is that you take an oath of loyalty to the United States Constitution and to the government, not to the President. And so the question is how can you best serve the people, how can you best serve the Congress -- the Constitution by staying in or by getting out and it`s different for every person and it`s different in every case. My problem with this is I don`t understand the point of this op-ed. Were they trying to move along the 25th Amendment process to get him out of office? I don`t think that has very much chance. Were they trying to affect the election in October -- November? So why do it now? My confusion with this op-ed is what was the objective.

HAYES: You served in several different administrations, have a very clear sense of how bureaucracies function and how the White House can function and the National Security Council which you served on. What`s described in the op-ed in the Bob Woodward book and in other accounts, how removed is that from your first-hand account in several other presidential administrations?

CLARKE: Chris, in every administration I ever served in beginning with Jimmy Carter and Ronald Reagan, bureaucracies did not follow presidential instructions.

HAYES: Right.

CLARKE: I`ve seen that in every administration. For 20 years I was in the Pentagon and State Department and those bureaucracies were trying not to do what the president wanted them to do. And for ten years I was in the White House on the other end trying to make the bureaucracies do what the president wanted them to do. That`s not unusual. What`s unusual is when you get to a point of conscience where you say I can`t do this. This is illegal, this is immoral, this is going to damage the country. Then I think you really should quit.

HAYES: Given the stakes and the amount of power that is invest in the president particularly over the years both in the sort of post-world War two period in the Cold War and then post 9/11, how dangerous, how worrisome is it to you if in fact the president`s behavior is what all the people around him appear to say anonymously?

CLARKE: Well, it`s very worrisome because someday somebody might actually do what he`s telling them impulsively to do. So that`s the argument for people like Jim Mattis staying around and tempering the orders and slowing things down. You want someone like that in a position like Secretary of Defense to slow down the crazy order to go assassinate the President of Syria or whatever it is. But at some point, the President can force people to do things because he is after all the Commander-in-Chief.

HAYES: Well, that`s interesting. So you think -- I mean, there`s certain people who have been split on this about writing the op-ed but let`s put the op-ed aside. If in fact, there are people in the administration who aren`t publicly advertising this in the New York Times but are conducting themselves in this way choosing to stay but choosing to sort of stay with this in mind. You think that is a justified and perhaps admirable decision?

CLARKE: I think it`s admirable up to the point where you`re forced to carry out an illegal or immoral order and that`s the point where you have to quit. But I think it`s very admirable to stay in to try to temper the process, to try to prevent the damage getting worse, to try to slow things down.

HAYES: You -- I`ve learned your name. I first interviewed you as a reporter after you had worked sort of anonymously in the White House of the Bush administration after several administrations and came forward to blow the whistle on what you said were huge missed signals by the Bush administration, the National Security Council on terrorism. What was what got you to sort of switch over to come out publicly and offer your criticism?

CLARKE: Well, the President and particularly the Vice President were saying publicly that Iraq had something to do with 9/11 and they were about to embark on a war -- they had embarked on a war which was going to be an enormous mistake, cost billions -- hundreds of billions of dollars, hundreds of thousands of lives and they were justifying it on a lie and the American people didn`t know that. So I felt an obligation as a civil servant not as a career officer I felt an obligation to get the truth out.

HAYES: Well that`s a -- that`s an interesting thing for people to keep in their mind if they`re watching this program and they happen to work in the White House. Richard Clarke thank you for your time tonight.

CLARKE: Thank you, Chris.

HAYES: For more on the continued fallout from the anonymous op-ed in New York Times I`m joined by Jennifer Rubin, Columnist for the Washington Post and Sam Seder, Host of the Majority Report, both MSNBC Contributors. Your thoughts.

SAM SEDER, MSNBC CONTRIBUTOR: Well, I agree with Richard Clarke in terms of this op-ed. I mean, it`s incredibly self-serving and then maybe it`s not self. I mean, I have a feeling if we ever find out who wrote this there`s going to be half a dozen to a dozen people who are going to say that they had a hand in it otherwise it`s going to be very much orphaned. I mean, this was about distancing themselves from Trump, distancing the conservative and Republican movements from Trump, and the only thing that I think is even remotely interesting about this piece is that it indicates that people think this is the time to do it.

HAYES: I totally -- timing is as fascinating as anything about it. Why now?

SEDER: Why now? And it`s -- I think it`s only because there`s a sense that maybe the ship is taking on some water and they want to make sure that they stay -- they get one of the dinghies, essentially.

HAYES: You know, the other part about this, Jennifer, and Richard said this and everyone has been saying this, I mean, when you saw yesterday you knew. If you knew anything about the President`s psyche, it would drive him insane. He would be obsessed with it. All of you accounts so far suggest that, his tweeting suggests it. You know, we know this is how he operates. Politico: it will make him crazy, anonymous, anti-Trump screed backfires. If you know that, then what is gained here?

JENNIFER RUBIN, MSNBC CONTRIBUTOR: It`s very hard to figure out. I agree that the motive here is murky at best. I look upon this as someone who is trying to sue their own conscience. That they have been told by their friends and relations and former colleagues that they`ve done a very bad thing and enabling this President and they are trying to justify in their own mind and trying to give their first version that they`re going to give to some employer or they`re going to give to some colleague down the road as to why they stayed there. Well, I was there. I was keeping the ship from really, really going downhill fast.

And so I think it`s a very self-serving piece of work and it really doesn`t move the ball forward. What would move the ball forward is if someone who was in a position to know would step forward, identify himself. And the other thing that I find very troubling is we now are all caught up in the wrong end of this.

HAYES: That`s a great point.

RUBIN: We are all looking for the guy who pointed the finger. What we should be doing is saying, the President is non-functional. Where is Congress? Why aren`t those cabinet officials being called before Congress to testify? Where is the Vice President in this? And instead, we`re all tying ourselves up in knots trying to find the guy who has blown the whistle. Of course, it is a disaster afoot and no one is really doing anything about it.

And I find Ben Sasse`s attitude and to a certain extent Jeff Flakes` attitude obnoxious and irresponsible. That is not why that people of Nebraska and Arizona respectively sent them there to shrug and say oh well, constitutional crisis not my problem. There is such a thing as oversight. That`s what Congress is supposed to be doing.

HAYES: And you know, it`s B.S. It became this perverse game of clue, you know.

SEDER: Well, you know, I mean, I would say that literally every single one of those Republicans that you showed whether it was those who are saying this guy`s a coward or yes, we knew all this, their behavior is reprehensible. They are the only people who literally have the ability to do anything about this and they are just sitting there and watching and essentially enabling. And they are the ones who should be -- who really should be held to account.

HAYES: And this gets to this point. I mean, you saw -- you know, people criticizing -- pro-Trump folks criticizing this thing saying it`s dishonest and -- which is perfectly fine for them to say. Paul Ryan saying living in dishonesty which is something I think he has an expertise on. This quote from the op-ed, no one wanted to precipitate a constitutional crisis as they consider the twenty-fourth amendment. Well, we`re in an unconstitutional crisis.

I mean, the thing to me that I can`t get over is what is being done and the current state of affairs is untenable from the basic sense of democratic representation and the way the institutions and constitution function where everybody just says, yes, the guy is a nut, we`re just going to do end around him. That`s not the way it works. Do something.

RUBIN: Exactly. And there are methods. Elizabeth Warren said today about trying the 25th amendment. I have a different idea. How about just oversight? How about calling in the cabinet chiefs? How about interviewing the Vice President? There are mechanisms and oh, by the way, there`s a lot of information already out that in my mind is sufficient to begin the impeachment process. There`s lots of things they could be doing there are within their Constitutional responsibilities and within their Constitutional authority and they`re doing none of it. And I think the lesson to the voters -- and maybe it`s good that it came --

HAYES: Well, that`s a great --

RUBIN: -- at the time is you better put in power a lot of Democrats because these Republicans will never defend the Constitution, never defend democracy, never check the president.

HAYES: You know, that -- the things that the author says basically like don`t worry we got this.

SEDER: Right.

HAYES: But the message seems to Jennifer`s point, kind of the opposite.

SEDER: Absolutely. I mean, first of all, it`s also rather disturbing that these unelected people --

HAYES: Well, who knows who these people are?

SEDER: -- have decided that tyrants are on American. I mean, I may or may not agree with the President`s policies but the notion that people this high up in the chain, it`s one thing that bureaucracies are tough to move, it`s another we`re basically the people around the President have decided we`re the star chamber here. We get to decide what is actually the values that we should be and that the president, there`s something wrong with the president, and that his core values do not align with the conservative movement. I mean, this is absurd in a way --

HAYES: And yet -- and yet no one took the memo off the President`s desk that stopped 2,000 kids from being ripped from their parents.

SEDER: Right. Of course.

HAYES: I will just note. Somehow that one stayed there and the grand internal resistance didn`t catch that one. Jennifer Rubin and Sam Seder, great to have you both.

SEDER: Thank you.

HAYES: When the week began -- and turning to a hot burning news fire of this day, the confirmation hearings of Brett Kavanaugh. When the week began, it was the widespread consensus that the hearing of Supreme Court nominee Brett Kavanaugh was going to be ho-hum, but in fact, there have been more plot twists dramas and complications than expected. And today Senator Cory Booker led a revolt over what Democrats felt was a bogus rule about keeping certain documents from Kavanaugh`s years in the what Bush White House confidential.

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BOOKER: I knowingly violated the rules that were put for and I`m told that the Committee Confidential Rules have knowing confident consequences. And so, sir, I come from a long line as all of us do as Americans and understand what that kind of civil disobedience is and I understand the consequences. So I am right now before your -- before your process is finished, I`m going to release the email about racial profiling and I understand that that -- the penalty comes with potential outing from the Senate.

CORNYN: Any Senator, officer, or employee the Senate who shall disclose the secret or confidential business or proceedings of the Senate including the business and proceedings of the committees, subcommittees and offices of the Senate shall be liable. If a Senator, to suffer expulsion from the body and if an officer or employee, to dismissal from the service of the Senate and a punishment ring for contempt.

BOOKER: Bring it. Bring it.

CORNYN: So I would - I would correct the Senators statement, there is no rule. There is clearly a rule that applies.

BOOKER: Then apply the rule and bring the charges.

UNIDENTIFIED MALE: Mr. Chairman -- Mr. Chairman --

HAYES: Joining me now Senator Cory Booker who is a member Judiciary Committee and made his protest quite clear today in that confirmation hearing. First, how did that come about?

BOOKER: Well, last night I had a frustration that there were documents that we had in our possession that they were -- they were not allowing the public to see after repeated requests from Democrats. I just used that documents last night in violation of procedure and it began to bubble up again this morning as they were scrambling to deal with what I had done. And so there was a lot of heat going into that and at some point I just had had enough and basically I`ve been doing what I`ve been doing all day, is just releasing document, after document, after document. I`ve released about 20 so far in violation of their sham rules.

HAYES: OK, right. So Bill Burck who is the lawyer -- who`s by the way, Steve Bannon`s lawyer, Don McGahn`s lawyer and also the lawyer for the Bush administration overseeing the release of documents basically said to reporters today, this was a stunt you pulled because they already cleared all the documents. You -- these documents were cleared and Cory Booker just was grandstanding. Is that true? Where the documents already clear? Were you violating the rules? Like I don`t know.

BOOKER: I violated the rules and I am violating the rules. And if it was just that, history (INAUDIBLE) and why would John Cornyn do something that really I`ve never seen before in the Senate which is literally accused me of breaking rules and telling me that I was facing an ousting of the Senate, really threatened me with that. So if what he`s saying is true, then John Cornyn wouldn`t have gone there.

And the reality is it`s all moot at this point because I`m continuing to release documents that they haven`t -- they haven`t approved yet.

HAYES: So this is a small thing but I just want to make sure. You go there and you said this is a ridiculous rule. We have these documents. These should be made public. What is the possible rationale for keeping them? You release them, a violation. John Cornyn read you the riot act and says the penalty for this is expulsion. And then later what you`re saying is they`re lying to save face by basically saying like, no we didn`t -- we already said it was fine but that`s a lie is what you`re saying.

BOOKER: Yes. Well, they also are last night when I broke the rules. Now, they`re scrambling to try to do it. John Cornyn went where he should not have gone and that`s why I said some of this meetings, I will accept responsibility because they know it`s a sham rule.

HAYES: Well, he also said they (INAUDIBLE) for expulsion. And then you`re not going to get expelled from the Senate?

BOOKER: I`m not going to get expelled for the Senate. And so -- and so now they`re trying to clean it up talking about one document when I`ve ordered released 20 documents.

HAYES: OK. Here`s the thing about these documents which are fascinating. There`s 40,000 in this bunch that got dumped, right? I don`t even understand what is their stated reason? This guy was in the Bush Administration for years. They`re being turned over and curated by again Steve Bannon`s lawyer, real thing. What was even the stated purpose that we can`t see these? They seem entirely germane. Some of them actually make Brett Kavanaugh look like a pretty thoughtful dude.

BOOKER: Right. And so that`s the point. There`s absolutely no reason. These aren`t (INAUDIBLE) because they`re classified or national security. There`s no legitimate reason for them to be withheld. But that`s not even the largest point. The largest point is they`re coming out literally we got a 1,000 documents at 1:20 p.m. today, 1,000 documents on the last day to question him. These were just a fraction of the totality of the documents, only about ten percent of the total documents of this man`s body of work we`ve been able to see. And so we`ve just gone through all these hearings having ten percent of his resume in order to evaluate them. And some of those documents might be exculpatory. Some of them will bring up issues around torture, around Roe, around race and the law. you name it.

And so this whole process has been a sham it`s being -- we`re being blocked from a full airing of this person`s record, the full opportunity to vet them and that`s why this should catch everybody at a time where we are -- we are in a crisis in our country with what`s going on in the White House where this person has expressed views about giving the president a free pass should he get in trouble. All this stuff is going on for him. The lifetime appointment and we don`t even know his record.

HAYES: As I watched -- I watched the drama unfold today and it was fascinating for a bunch of reasons. How much is what`s happening because of Merrick Garland for this reason? The -- your perception, your colleagues perception of the gravity of the violation of traditions in norms by Mitch McConnell and not offering the President even the hearing on his nominee makes whatever norms or procedures, whatever they`re imposing now seemed preposterous to you.

BOOKER: You know, Merrick Garland is an insult and injury in and of itself. But this one, this is to me a grievous that we are rushing a Supreme Court Justice through and at a time where we don`t have is hundreds of thousands of pages, thousands and thousands of documents. It just -- this is not the way it`s done and then this sham process to shield documents from the public, this is in and of itself rotten to the core and again we know what happened with Merrick Garland was rotten as well.

HAYES: So there`s a question about are you going to get any more, can you get any more, can you do anything to delay because there are as you said -- and Mitch McConnell flag this apparently was lobbying the White House not to pick Brett Kavanaugh precisely because of this issue, hundreds of thousands of documents from this time in the Bush administration like what`s going to happen.

BOOKER: Well, again, I don`t know. We`ve shaken up the process today. We`re seeing them move to try to release more documents so I think we`ll get some but it`ll still be a drop in the bucket about the totality. What I`m hoping is that people will understand that at a time that we need more legitimacy in the Supreme Court, the time the Supreme Court might face real issues about can a president be indicted, can a president pardon themselves in the like, that perhaps some Republicans will say that wait a minute at a time when we might be going into a constitutional crisis, the legitimacy the court is important. And we`re either going to join Democrats in demanding that he recuse himself or perhaps we should pause.

Now, I don`t know how that`s going to play out. I`ve seen on health care some Republicans shift at the last minute. And so that`s what I`m going to continue to press for. I don`t care if somebody tells me it`s that this is an inevitable conclusion. I`m going to fight every single step of the way.

HAYES: There is a third round of questioning those hearings are ongoing, am I correct about that?

BOOKER: You are. As soon as I am done with you, I`m running back to the committee room.

HAYES: And more -- and there`s -- I mean that -- and then that will be -- will that be it for questions tonight and then there`s more testimony tomorrow?

BOOKER: No, we`re -- that`ll be it for the open testimony and then we will go into a private room where the public cannot see and ask him questions. Someone of which are appropriate for being private but then those committee confidential documents, the once I haven`t been able to release yet and a lot of others, we`ll get a chance to talk to him about that. And that to me again should not be.

HAYES: That is crazy.

BOOKER: That is -- that is absolutely crazy.

HAYES: Wait a second. But those are -- they`re just committee confidential because Bill Burck, this lawyer said it? Like, I don`t get it. They`re not classified.

BOOKER: No. And who is Bill Burck? Again --

HAYES: That`s the one who`s making the determination about what you talking in closed session?

BOOKER: Yes and that`s why again, if you read my Twitter account, that`s why I am releasing these things regardless of what the consequences are to my time in the Senate. But I promise you, at least I believe strongly that because they`re sham rules they`re not going to move to oust me from the Senate.

HAYES: Well, yes, I mean they don`t have the votes for expulsion so just you know, fire up your phone and live stream the closed session all right. You really want to -- you really want to -- you really want to shake things up. Senator Cory Booker, thank you very much.

BOOKER: Thank you very much.

HAYES: Much more to come including former Secretary of State John Kerry on how this explosive op-ed could be received by our allies and adversaries around the world and what do you think from today`s Democratic show of force in the Brett Kavanaugh hearing. That interview next.

(COMMERCIAL BREAK)

HAYES: President Donald Trump has laid waste to so many norms of American governance from the incredible chaos and infighting in his administration, the very public infighting detailed from within this week an extraordinary New York Times op-ed to abrupt about faces in our foreign policy. We are now in a feud with longtime close ally Canada while the President lavished his praise on autocrats like Kim Jong-un of North Korea.

Joining me now a man who knows American foreign policy inside and out, former Secretary of State and Democratic Presidential Nominee John Kerry who has a new memoir out called Every Day is Extra. Secretary Kerry, it`s good to have you here.

JOHN KERRY, FORMER UNITED STATES SECRETARY OF STATE: Happy to be here with you. Thank you.

HAYES: You`re someone that worked for years in the Senate and then in the executive branch particularly in the state which is kind of almost an independent beachhead in the federal government and in any administration. So here`s what you make of this anonymous op-ed. If you think this is cowardly, brave, somewhere in between, glad to see it?

KERRY: Well, I think anytime you have the truth being put out on the table one way or the other I think it`s important. I would have preferred like a lot of people that this person did make themselves known and came out publicly and resigned which they would have had to have known obviously to do that. But evidently, they see themselves as so key to preventing the President from doing bad things that they`ve made an alternative choice. And the New York Times obviously weighed that component of what they represented with and they decided they needed to go public with this.

It`s extraordinary information. I mean, it is confirmed by and it confirms Bob Woodward`s book and it confirms everything that everyone has been hearing and talking about him Washington for months,

HAYES: Your old colleague Bob Corker said it out loud when he called an adult day care.

KERRY: Well, exactly. And so it really I think heightens the level of concern if not crisis over the fact that we have a president who is not, clearly not, capable of carrying out the duties and responsibilities of the presidency in the way that one should. That doesn`t mean he can`t make a decision here or there that doesn`t do something positive. But, overall, when you have a president who attacks the attorney general because they`re indicting a congressman and he thinks it ought to be made a political tool in election season, or when you have president who makes such a crazy decision that people within his own administration feel compelled to steal papers off his desk or countermand his order when it`s made to secretary, that means you have a presidency in total chaos and crisis, you don`t really have a full measure of a president of the United States under those circumstances.

HAYES: Isn`t -- I mean, there are some -- Elizabeth Warren suggesting the 25th Amendment, which is a remedy that was floating in the op-ed itself, other Democrats on the House side particularly have called for impeachment. Isn`t that an untenable state of affairs? Like, what should be done about that?

KERRY: Well, the average American citizens` best choice is to go out and vote in two months. The single best remedy we have -- I mean, the 25th Amendment, whatever it is, those take -- that is going to take forever. It is not going to have the kind of impact that the American citizen can have if they choose to go out and vote. And we need to go out and vote, because the numbers of people who voted in the last election are fundamentally at a low level and unacceptable in terms of participation. It`s 54.2 percent. When President Obama was elected in 2008, it was about 62.3 percent. That is a huge difference.

HAYES: So -- but I want to stay on this, because I mean, yes, I agree that is what citizens should do. They should vote either way.

KERRY: No, that is going to have the greatest impact in the outcome. If the House of Representatives flips then you can begin to create accountability on all of this and that`s important.

HAYES: But the president of the United States still has tremendous power in the spheres of war, war making, and in the spheres of foreign affairs. How do you think that op-ed gets read in Saudi Arabia -- I am serious. You know it`s getting read in Saudi Arabia, it`s getting read in China.

KERRY: It is being read in every capital, it`s been read by every leader of every government and everybody else.

HAYES: And what are they saying? What is the cable you send back to the capital if you are...

KERRY: I don`t know about the cables. I`ll tell you what every one of them is saying, because I`ve talked to some of them. They`re concerned. They`re deeply concerned. They rely on the United States for certainty about alliances. They rely on the United States for its ability to be able to lead at the United Nations, to be the leader of the free world.

And in these current circumstances, when they see the president of the United States go to Helsinki, stand up with President Putin, who is bothering all of their processes too, and the president caves and literally praises Putin, has nothing to do about his hacking of America, they realize something is wrong, and something is up. And so they are concerned. They really don`t know what the policy might be from day-to-day

HAYES: The president did get an endorsement today from someone he has worked with. He got -- he tweeted this this morning, "Kim Jong-un of North Korea proclaims unwavering faith in President Trump. Thank you to Chairman Kim. We will get it done together."

What do you think of the process that is playing out there?

KERRY: I think it is lacking in any real return on the investment so far. It is lacking in substance. I mean, the president goes to Singapore. He gave to Kim Jong-un something that Kim Jong-un`s father and grandfather always wanted and never got, which was a meeting with the president of the United States, but without doing more than he wanted to do anyway, because he couldn`t continue to use the missile -- the site that he had. It was contaminated, so he blows it up, makes a big deal out of it, and gave up nothing.

We, however, stopped the exercises and we`ve had no response yet with respect to the detailed accounting for the weapons they have, where they`re located, how many and so forth.

So, his interpretation of denuclearization is very different from ours.

HAYES: You were a member of the United States Senate for years, obviously, presided over many hearings for some very high drama ones. There has been a lot of drama on Capitol Hill today with the Kavanaugh hearings. Democrats sort of committing legislative civil disobedience, I guess you can call it, releasing these documents the majority said they were actually released.

A lot of people look at the Senate right now and they say Mitch McConnell has so violated Senate norms. They`re worth nothing. Do whatever you can do. What do you think about that?

KERRY: Well, that`s not the way the Senate ought to work. Again, I think the very best thing to do of all -- I mean I am not against a legislative act of disobedience, that`s -- if that is what people feel they have to do at this point, fine. But the far more significant impact will come in November of this year.

Two months from now, we have an election, a midterm election, and that is when people ought to be defining how they stand, where they stand and what -- where we ought to have accountability. And that is not a joke. When I say this to you, Chris, I can`t emphasize enough how much this changes things.

In 1970, we had this phenomenon called Earth Day. And 20 million Americans came out of their homes and said we don`t want to live next to toxic waste sites. We don`t want to breathe air that gives us cancer. And the result was that they labeled the 12 worst votes of the House of Representatives the Dirty Dozen. And seven of the 12 lost their election that year. And guess what happened? All of a sudden, the environment had become a voting issue and they passed the Clean Air Act, the Safe Drinking Water Act, the Marine Mammal Protection, Coastal Zone Management. The EPA was created. We didn`t have an Environmental Protection Agency until people lost their seats in congress.

So, that is what needs to happen. People need to lose. New people need to win. We need better, more forceful leadership in congress itself.

HAYES: The book traces your life.

KERRY: My book?

HAYES: Yes, your book, "Every Day is Extra." And it`s sort of fascinating about your childhood and the sort of circumstances in which you were raised. Obviously, your service to Vietnam and through the Senate.

In terms of your life in the political sphere, what`s the thing that`s changed the most over the course of your life in public service?

KERRY: The disrespect for facts and the disrespect for each other, The United States Senate`s ability to have compromise and to work in a bipartisan fashion seems to been shattered by an extremist element that have come in, who terrorize their own members of their own caucus with the possibility of a primary.

It began in the 1990s with what happened in the House of Gingrich, it carried on into the Tea Party, Freedom Caucus and to now you`ve had a sort of hostile takeover of the Republican Party by Donanld Trump and -- but the same process of polarization has taken place.

Secondly, there`s an enormous amount of self selection in the news that people hear and get in America.

So, if you don`t have a baseline of facts to start with, and all you do is go to your own comfort level news we are in trouble in terms of making our democracy work.

HAYES: Secretary John Kerry, the book is called "Every Day is Extra." It is out in bookstores now. You can pick it up. Great pleasure to have you.

KERRY: It is not a policy book, by the way.

HAYES: It`s a memoir.

KERRY: It`s a memoir.

HAYES: You talk about your mom.

KERRY: I look at Woodward`s book. Woodward`s book states the problem and summarizes it. I think what I have tried to do in my book is state the solution and show through stories and the journey of a country over the last 70 years how you really solve this problem. And it is solvable. I am optimistic that we can solve this problem.

HAYES: All right, thank you very much for making the time. I appreciate it.

KERRY: Appreciate it, Chris. Take care.

(END VIDEOTAPE)

HAYES: Coming up, as Democrats release confidential emails Republicans were trying to keep hidden, what we have learned from those Kavanaugh documents and what it means for his nomination next.

(COMMERCIAL BREAK)

HAYES: All right, you`re looking at live pictures still at this late hour of the hearings for Supreme Court nominee Brett Kavanaugh. It`s the second day of questioning. And it`s been a really dramatic day.

It started, as we reported earlier this morning, with Democrats sort of breaking the rules intentionally and releasing a bunch of documents that the committee, Republicans on the committee , had tried to keep hidden. We`ve learned some stuff about those emails. They have been interrupted throughout the day, as they were yesterday, with protests.

And I what to bring in now for more on the Democratic fight to try to stop Kavanaugh. And what learned today at the hearing. Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, former head of the Justice Department`s civil rights division; and Rebecca Traister, writer at-large for New York Magazine.

Rebecca, let me start with you. One of the big things that`s hung over all of this, of course, is Roe. And one of the documents that we got today was a document from him basically saying, I am not sure Roe is settled law from his time while he was in the White House.

REBECCA TRAISTER, NEW YORK MAGAZINE: Right, which is to some degree sort of meaningless, because the idea that settled law, the proof of whether he can say I`m going to support Roe or work to overturn it based on settled law is a kind of...

HAYES: Construction anyway.

TRAISTER: Also, we know he wants to overturn Roe, like that is a thing we know. We know he was chosen for this job because his -- the Federalist Society chose him. This is not actually in question. These documents are just supporting what we all already know. This the design of the court.

HAYES: The president of the United States pledged openly numerous times.

TRAISTER: He pledged, this is the vow and this is the guy who is going to come through for it, right. So -- and if it`s not him it`ll be another guy, right. This is the promise of this administration of the Federalist Society, all of it. He`s going to overturn Roe.

He used language today that`s worth highlighting, because in talking about the Hobby Lobby case, he used language where he referred to contraception as abortion inducing drugs. Now, that is a big tell about where his ideological feelings like on this, because, a, it is medically unsound. Contraception does not induce abortion. It is also an absolute dog whistle to a very far right. And it really lays on the table like this is what we are talking about with this guy. And he`s gone to great lengths to hide it and to say settled law and all that, but we know what we are getting. And this is who this man is.

And that use of the abortion inducing language is such an incredible telegraph. We have to remember so much is at stake. People forget, birth control was only legalized in this country for married people in 1965 and for single people in 1972, OK. And it was legalized by the Supreme Court of the United States, all right. There is...

HAYES: In the line of cases that eventually gives us Roe.

TRAISTER: For single people -- is a year before Roe. It`s right in the same time period.

There is a whole lot that the right wants to push toward. And the language that he used today gave us a clue about exactly where he is ideologically.

HAYES: Vanita, you`ve been following this closely, I know, for the last few days what jumped out at you today at the hearings?

VANITA GUPTA, PRESIDENT AND CEO CONFERENCE ON CIVIL AND HUMAN RIGHTS: Look, I just have to say that these hearings are -- they`re stunning. And the reason is the country has never seen anything like it before. They are a complete sham. It is incredible that the Republicans are trying to confirm a Supreme Court justice where everything is at stake, including everything that Rebecca just said -- women`s freedom to make decisions about our bodies, racial justice, LGBTQ rights, the whole gamut of it. And yet, the Senators have a job to do.

The constitution tells them that they have to give advice and consent. They have to be able to thoroughly vet a nominee. And yet all of these documents are being hidden, millions of pages are still hidden today. Let`s not get confused about what happened today.

So, the night before the first day of the hearing, 40,000 documents 12 hours before they start get released to Senate Democrats. Today, just a handful of documents are released now to the public. And Bill Burke, who is a private lawyer representing Steve Bannon, Don McGahn, is making these decisions about deciding what the American -- what U.S. government documents should be revealed to the American public. And that is why you saw Senator Booker, Senator Hirono, kind of the Democrat unite in complete kind of protest around what is essentially a sham and corrupt process to jam a nominee through who is going to carry through a very harmful agenda for Americans across the gamut.

HAYES: You -- one of the things throughout this time is just this -- you can feel Democrats and the protesters just straining against the math and wanting to do whatever they can. And they keep punctuating -- it`s sort of amazing -- part of this reality of the scene is people getting dragged out one by one. as the hearings go forward.

TRAISTER: And I would argue that it is having an impact, whether or not it winds up determining whether this guy gets confirmed or not, we are learning so much. Kamala Harris pressing him last night on that question of whether he talked to the guy from the law firm, from Trump`s law firm, he was -- we learned about something about him there, right. He was struggling. It looked like to...

HAYES: It looked like -- I have no idea what the truth is, but he looked like a man who was caught, whatever it was.

TRAISTER: He was trying very hard to be careful in what he said so that he did not say anything that was untrue. That was an incredible moment. The protest, the reaction to the protest. Those protesters getting up there, screaming, getting dragged out, and what it`s doing in addition to showing us that there`s a fight out there and there is a fury and that there is a spirit of resistance here, it`s also showcasing the way that the guys in power are reacting.

Orrin Hatch saying on that first day there`s a woman who got up and yelled I`m going to die without health care, that was what she was yelling. And he said get this loud mouth out of here. We shouldn`t have to deal with that.

Ben Sasse calling it hysteria and performed hysteria. Women shouting about women are going to die. Women did die. Women did die when abortion was illegal. Women will be arrested, women will die again if we curtail their reproductive autonomy, right. This is not hysteria, it`s not performative, and it`s not theatrics.

And it`s showing us what these guys think of this form of protest.

Today Kennedy said -- you know, Kavanaugh brought in a girl`s basketball team I guess is his feminist bona fides, which is -- you know, keep in mind the same day that he is calling contraception abortion inducing drugs. And he said, oh, it`s a lesson in democracy, and when the protesters yelled, Kennedy said this isn`t how democracy is supposed to work.

The resistance to the protest from the people in power is telling us a lot about the people in power. And that has had an impact in the past. That is part of what we saw in `91 in the Hill hearings was the way that the Judiciary Committee reacted to Anita Hill, that is part of what energized people to run in 1992 and have a year of the woman there.

GUPTA: You know, Chris, can I -- I think all eyes right now after today`s testimony need to be on Senator Collins and Senator Murkowski. They have - - they have been very clearly that they care about Roe versus Wade. And they care about women`s ability to make decisions about their bodies. It is unfathomable now in light of the testimony that came out today in what`s being revealed via documents and his own record through his jurisprudence, about how they could even think about voting for Kavanaugh.

You know, there is another deeper thing that is happening here is like we are all witnessing kind of the breakdown of our democracy and our democratic institution. There`s a mad king in the White House who is just is getting madder and more paranoid by the day. You have got a congress where you have got congressional Republicans who essentially have refused to do their jobs to provide any oversight over the executive branch in the Trump administration. And the one thing that we had was a sense that the courts, and that the Supreme Court over time has been a backstop, has advanced and protected the rights of African-Americans, of LGBTQ Americans, has been a backstop against some of the most base political instincts in this country, and this whole process now to me the most corrosive thing is just a whole -- it is calling into question the legitimacy of the Supreme Court now.

And I think that that is going to have a long lasting impact far beyond these hearings. And it is at a point where we are at a constitutional crises in this country. And I think we all need to understand what is at stake.

HAYES: Truly -- yes. I agree with that. We are in a constitutional crisis, whether it sort of feels every day, you know, that that is the case. That is the ambient temperature in the room in which we all move.

And Vanita Gupta and Rebecca Traister, thank you.

GUPTA: Thank you.

HAYES: Coming up, new numbers on the immigrant children taken from their families. The Trump administration announces a new policy of indefinite detention for kids. Jacob Soboroff and Julia Ainsley join me next.

(COMMERCIAL BREAK)

HAYES: The Trump administration announced a new rule today that would allow immigrant children to be held in detention with their parents indefinitely, upending a longstanding agreement known as the Flores Settlement, which says children cannot be detained for longer than 20 days.

The Trump administration, of course, also tried to get around that settlement earlier this year when it started separating families, putting kids in the care of HHS while their parents were held in detention or even deported.

NBC News national security and justice reporter Julia Ainsley reported on that story today. She joins me now, along with MSNBC correspondent Jacob Soboroff who has been covering the family separation crisis since the beginning and which continues to this day.

Julia, let me start with you. So, there is a consent decree called the Flores Settlement, and it started with a lawsuit. It says the government cannot keep families in detention longer than 20 days. What is the Trump administration doing about that now?

JULIA AINSLEY, NBC NEWS: Well, Chris, what they`re doing is what they`ve been trying to do all along. This is what they wanted the outcome of these family separation policies to be. They said they had to separate children because they couldn`t hold them with their parents in detention longer than 20 days, and they want to hold them, Chris, because they want them to be held until they see a judge in which case they would expect their asylum cases to be denied -- we know they`ve ratcheted down on asylum -- and then deported so that they`re never released into the interior of the United States.

But they can`t do that because of this 1997 Flores Agreement. And that`s been reinterpreted to be even stricter to say this does apply to children in detention with their parents.

So at this point they are really just gearing up for a court battle. In 60 days they say that they are no longer going to follow the Flores Agreement. They think that they are keeping to the spirit of the agreement by having third party entities inspect the facilities, but really they`re defying that agreement.

HAYES: There`s just defying -- and there`s a judge who oversees the case who is going to tell them one way or the other whether they can or can`t do this, right.

AINSLEY: So that is the legal tick here, Chris. From what I understand from DHS officials, What they`re trying to do is to get out from under Judge Dolly Gee. She`s the one who is overseeing the Flores Agreement, that`s her court. They want this to get out of her court. They want this to be kicked up to the appellate level, even the Supreme Court. They think that`s their only way of ever actually winning this battle.

But they`re setting themselves up for lawsuits here, so we can expect that to follow.

HAYES: I should note that the finding, the reason the consent decree was a lawsuit about the damage that was being inflicted on children in long-term detention. I mean, these detention facilities, even family detention, they look like jails, they feel like jails, sometimes they are converted jails. And keeping children -- 5-year-olds, 6-year-olds, 7-year-olds -- even with their parents in jail for a year or 18 months is destructive to those children, hence the consent decree and the judge`s order on this.

Now, that is the families that are kept together in family detention. There are still, Jacob, lots of children who are alone by themselves. Hundreds who have been, who were separated from their families under the now abandoned, essentially, family separation policy who a judge said you have to put them back together again and where are we on that?

JACOB SOBOROFF, MSNBC: As of tonight, 416. And I just want to say, about...

HAYES: 416 children...

SOBOROFF: 416 tonight. All summer, those children have been separated from their parents while we`ve been off doing our summers, the American people, President Trump has been going golfing, et cetera.

I want to say about Flores real quick, the whole reason the Trump administration put in this family separation policy was essentially to terrorize these folks. It was the stated deterrence policy in order to get congress to act, to basically get rid of this Flores policy so that they could indefinitely detain all of these children. That didn`t work out because President Trump signed the executive order, which an administration official has told me they now regret because they think they were close to getting congress to get rid of Flores.

Tonight, 416 kids still remain in custody of the U.S. government.

And then the other number that`s extraordinary is they say 199 children have parents who knowingly waived the right to be reunited with these children. They basically gave up the kids.

We know a lot of them have already been deported, some of them are still detained, the parents separated from the kids, in the United States.

I`ve been trying -- you had it on the show -- I`ve been trying to get in touch with one, get inside ICE detention for weeks. I finally was able to do that and we brought some tape, so I want to roll that real quick.

(BEGIN VIDEO CLIP)

SOBOROFF: Let me ask you, Ascencion, what they say is, look, you signed these papers. These papers say, I know that I`m requesting to return to my country of citizenship without my child and I understand he is going to stay here to pursue the claims of relief.

Explain to me why would you sign this if you wanted to get back together with your son?

UNIDENTIFIED MALE (through translator): Because they told me I would not be reunited with my son, that if I wanted to be reunited, they would have deported me.

SOBOROFF: You thought the only options were to be reunited and deported or you would be deported and he stays here. So, you thought that`s the better option.

UNIDENTIFIED MALE: Yes.

(END VIDEO CLIP)

SOBOROFF: So the ACLU, Chris, says many of these parents said that they were coerced into signing these documents, including Ascencion, because of that attorney, he was essentially undo this process, get a credible fear hearing, and now still may be reunited. There are hundreds of parents who have already been deported and won`t -- will never be as lucky as this man.

HAYES: You know, the background context here, Julia, on all this, right -- and when you talk about how long they`re going to stay in detention is the Trump administration is doing everything in its power to make it harder to get asylum status and to accept fewer and fewer refugees. These are not people who are crossing illegally, this is legal under domestic and international law, to come and ask for asylum or to come from abroad and apply for refugee status and both of those are being ratcheted way down by this administration, right?

AINSLEY: That`s right. And one of the questions I got today as soon as we put out this story is, OK, does this just apply to people who are crossing illegally? This actually applies to both, even people who present themselves at ports of entry and apply for asylum they can be held in detention while they wait for that asylum process to play out.

And we know that the attorney general has put out new rules that are supposed to say to judges and to asylum officers that things like gang violence and domestic violence are no longer grounds for an asylum claim. That is actually a violation of international law that says that those people are being persecuted for their membership in a social group, which includes gender, which a lot of domestic abuse and violence survivors are part of that.

So this is all part of this larger scheme, and that`s why Jacob and I have been covering this all summer, this is all part of the larger effort to try to crack down on people coming into the U.S., often legally, through the legal courses that we have had in our country for years, for them to pursue those rights.

HAYES: Very quickly, does judge weigh in again on the reunification soon?

SOBOROFF: We`ll hear tomorrow. We`ll hear more from the judge tomorrow. And, again, this coercion issue is the big issue on the table right now, what happens to these people who said the government basically tricked me into signing these documents.

HAYES: All right, Julia Ainsley and Jacob Soboroff, thank you both for being here.

That is ALL IN for this evening. "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel.

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