IE 11 is not supported. For an optimal experience visit our site on another browser.

Democratic Blue Wave keeps getting bigger. TRANSCRIPT: 11/8/2018, All In w Chris Hayes.

Guests: Adam Schiff, Ryan Costello, Barry Richard, Neal Katyal, Astead Herndon, Alex MacGillis

Show: ALL IN with CHRIS HAYES Date: November 8, 2018 Guest: Adam Schiff, Ryan Costello, Barry Richard, Neal Katyal, Astead Herndon, Alex MacGillis

CHRIS MATTHEWS, MSNBC HOST: For health protection. And that is quite an election result don`t you think? That`s HARDBALL for now. "ALL IN" with Chris Hayes starts right now.

(BEGIN VIDEO CLIP)

CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.

UNIDENTIFIED FEMALE: Hear me, it is not over yet.

HAYES: The votes keep coming and the Democrats keep winning.

UNIDENTIFIED FEMALE: Wow what a night. What a night.

HAYES: Tonight, the true scope and scale of the Democratic blue way and how Democrats plan to use their power with Adam Schiff. Plus, there will be a recount in Florida.

ANDREW GILLUM (D), GUBERNATORIAL CANDIDATE, FLORIDA: We want every vote counted.

HAYES: The lawyer for Andrew Gilliam joins me live. And the growing bipartisan condemnation of the President`s pick to replace Jeff Sessions.

UNIDENTIFIED MALE: You`re saying that the guy the President has appointed is not qualified?

UNIDENTIFIED MALE: Is not legally qualified.

HAYES: As protesters take to the streets across America.

AMERICAN CROWD: Hands off Mueller! Hands off Mueller! Hands off Mueller!

HAYES: When ALL IN starts right now.

(END VIDEO CLIP)

HAYES: Good evening from New York, I`m Chris Hayes. It has now been two days since the election and have you been hearing it was a mixed bag or a split decision? Here`s the news tonight as results continue to come in. The Democrats won, they won big, and it is not even over. At this very hour, the Senate race in the state of Arizona in which the votes are still being counted, the Democrat Krysten Sinema is now ahead in the voting along with about 500,000 votes still to be counted. The Senate race in Florida between Rick Scott and Bill Nelson is now tightening. It was already in the range of a mandatory recount now. The Democrat is within 16,000 votes. That is a razor-thin margin.

Steve Kornacki will be here in a moment on this incredible turn of events. Meanwhile, over the House of Representatives, Democrats have as of this moment secured 225 seats, the Republicans have 199. It`s a Democratic gain of 30 seats. But there are 11 outstanding races which have yet to be called. Many analysts have estimated the Democratic game will climb closer to 38 seats by the time all votes are counted. 38 seats, that would be a huge even historic shift. And the move left was not isolated to a few dozen districts.

According to the New York Times, at least 317 districts shifted to the left. The average district nationwide moved ten percentage points to the left this year. Overall, across the country, 53.7 million votes were cast for Democratic House candidates compared to 47.6 million for Republicans. A difference of more than six million votes and that edge will likely grow as votes continue to be counted on the West Coast.

The United States Senate initially portrayed as a genuine disaster for Democrats now looks like it could be much, much closer after John Tester has won reelection in Montana, a state Trump won easily and the results coming in from Arizona and Florida this evening, Republicans now face the prospect of having gained just a single seat in this Midterm election despite one of the most favorable Senate maps for either party in a generation.

And then there are the states. Democrats took seven Governor`s races from Republic and the GOP did not flip a single one from Democrats. They`re still counting votes down in Georgia where Stacey Abrams is trying to overcome an aggressive voter suppression effort and become the nation`s first-ever black female governor. More on that race and the shocking developments in Florida and Arizona in just a bit. But there is much more to this story.

According to the DLCC which focuses on state races, Democrats flipped 350 seats in state legislatures, flipping seven chambers in the process. They gained trifectas, that means unified government in six states, meaning they now control the governorship, State House and state Senate. That includes in the state of New Mexico, a state George W. Bush won back in 2004.

Even the losses had big upsides. In Texas of course where I was election night, Beto O`Rourke surprisingly close race against Ted Cruz helped Democrats up and down the ballot statewide. They gained 12 seats in the State House and two congressional seats, and their biggest win may have been the courts where they toppled 19 incumbent Republican appellate judges. In Harris County, that`s the nation`s third largest, the county judge who was like the county executive is no longer a longtime GOP incumbent, instead, a 27-year-old Democrat Lina Hidalgo.

Perhaps the most emblematic victory for Democrats was the one that was called today, Lucy McBath`s victory over Karen Handel in Georgia`s 6th District. Now, McBath is headed to Congress after becoming a gun control advocate following the murder of her teenage son at the hands of a White man who wanted him to turn rap music down in his car. It`s the same seat Democrats lost in a special election last year when they poured famously millions of dollars into Jon Ossoff`s campaign and came up short. People everywhere said it was a failure.

But here`s the thing, Democrats created an infrastructure in that district, they found volunteers, they identified voters and opened the door to victory. And now an African-American gun control advocate is taking over a House seat the GOP is held since the Carter Administration, one previously occupied by Tom Price and Newt Gingrich. For Democrats, that`s progress. That`s how you win and that is the story of the 2018 election.

Joining me now, Joy Reid, host of MSNBC`s "AM JOY" and Congressman Ryan Costello, Republican of Pennsylvania who is retiring from Congress at the end of this term. Joy, what do you think about the main story of election night as the results come in?

JOY REID, MSNBC HOST: No, it was interesting because -- so I was in Tallahassee, Florida after a deluge of sort of biblical rain and so we`re all that kind of listening to the MSNBC coverage. James Carville comes on in about the 10:00 hour and sort of declares it was just a blue trickle, the wave doesn`t seem to be happening. Within like 20 minutes, the wave starts breaking in the West. And I think what happened is that Democrats won where they were expected to win, on the East Coast, in Virginia, places that we know are turning blue or that are purplish blue. But what people fail to realize is where Democrats are really building strongest is in -- is in the West.

HAYES: Right.

REID: It`s not so much in the East. It`s in places like Colorado where Democrats had a huge night. It`s in places like the "Rust Belt" where Donald Trump managed to eke out of 77,000 vote win. It`s in places like Wisconsin which had let`s keep in mind, one of the most aggressive voter suppression campaigns that we`ve seen outside of the South in 2016 in which some 300,000 people were unable to register and didn`t have the right I.D.s etcetera, etcetera, etcetera. We can`t do that now, right? So the governorships are huge. It`s so important to have won back so many of those state houses in governorship, seven as you just said that were lost in 2010. That protects millions and millions of voters of color going into the next election.

So I think that the optics of Democrats are always losing, its kind of the narrative that kind of lives forever within the media landscape, political journalism sort of start with the default that Democrats are doing poorly and then kind of goes from there. But Democrats did really well, really well.

HAYES: Congressman, your district is no longer after this. After this term it was -- it was changed in the redistricting. But your kind of district was where the bloodbath happened for Republicans. I mean, you`re in the kind of district that people got wiped out in. Do you think it was in the words the president a tremendous victory for Republicans?

REP. RYAN COSTELLO (R), PENNSYLVANIA: No it was not a tremendous victory by any stretch of the imagination. And I would also agree with the analytics you put up relative to how the Senate race is post-election night are trending potentially away from Republicans. Obviously with the Tester race in particular and I don`t know what happens yet in Arizona or Florida. But to your other point about districts like mine which were slightly Republican districts with reliably Republican voters, some of whom started to trend against Republicans at the national level but would still stick with their local member of Congress provided they had their own independent type brand in this election.

And your -- one of your colleagues, Chris Matthews, said it good the other night. You know, the Access Hollywood Tape Bill became due and just the Trump reflux from a lot of voters really showed itself on election night and it became very difficult in slightly Republican districts to hold those districts. We held some but in many others we lost by several points or more.

HAYES: You know, I want to play for you. You commented on this. When the President came out yesterday, he just took shots at all the Republicans who`d lost basically in these kinds of districts who had to distance themselves to the president and every mature adult who exists in politics understands that`s the way it works. But this is how the President chose to single out those members of Congress who lost. Take a listen.

(BEGIN VIDEO CLIP)

TRUMP: You had some that decided to let`s stay away, let`s stay away. They did very poorly. Carlos Curbelo, Mike Coffman, too bad Mike. Mia Love, Mia Love gave me no love and she lost. Too bad, sorry about that, Mia.

(END VIDEO CLIP)

HAYES: What do you think of that, Congressman? Well, you probably have my tweet around there somewhere. It`s just highly offensive, it`s inappropriate, it`s not what the leader of a political party should do. Many of us have burdened the brunt of many anti-Trump protests and phone calls to our offices saying we`re too this or too that, relative to the President and obviously you have to run your own campaign, and then to have the President say that, I -- you know, it`s disgraceful to be -- you know, it`s very obvious.

REID: Yes. And by the way, it`s Carlos Curbelo.

HAYES: Yes, which is a name that you know and I know and Congressman Costello knows because we for a living do this --

REID: It`s not hard to say.

HAYES: -- but the President doesn`t.

REID: But also spelled -- it`s spelled like it sounds so it`s not that hard.

HAYES: Well, here`s the -- here`s the thing though, Joy. To Congressman Costello`s, when I was -- I grow over at the Bronx, right? When I was growing at the Bronx, it was like cities are Democratic and suburbs are Republican. This was just the way it was. It was like oh yes, you got the Scarsdale, you go to the western, those are Republicans. We`re -- that`s not the way it is anymore. It`s a sea change right now.

REID: Well, here`s the thing. You literally just read my mind. You`re reading minds tonight because I was just going to say what we`ve learned is that we are two countries. One country that is essentially exurban in rural and one country that is urban and suburban right? And so urban- suburban -- think about Mia Love. Mia Love as Donald Trump called her with that very breathy way he said her name. Mia Love, you know, every state even Utah has an urban quarter. Every state has a city that is a bigger city, that is an urban center, that is a little more techy, that`s a little bit more right? Those places are Democratic strongholds. Everywhere. There`s --even in South Carolina has it, right?

HAYES: Yes.

REID: And so if you go in any state and you go to those the suburban and urban centers you`re going to find that that is a Democratic stronghold, everywhere. And Donald Trump can`t carry those kinds of districts at all.

COSTELLO: Here`s the important --

REID: -- and Democrats have a really hard time with the exurban and rural parts.

HAYES: Congressman.

COSTELLO: And here`s the -- here`s the important part. I`m a Republican, you`re both Democrats, you know, this is a two-party system. We all get along.

HAYES: Well, I`m --

COSTELLO: Well, whatever. But the point is, I might probably slightly center right, you may be a center-left with all due respect.

HAYES: I`m right in the middle.

COSTELLO: Here`s the point I want to make. Here`s the point. Carlos Curbelo is my best buddy in Congress. Mia Love is a good friend of mine. Both of them Pro-immigration reform, believe in climate change, work down the middle of the aisle, you may disagree with them on some things but in this country, if you don`t have folks working from the center, at least agreeing on what the problems are and trying to find compromise, we are not going to have a two-party system that reflects a desire to compromise in the middle.

And to lose those two members is an extreme loss for the Republican Conference and an extreme loss for those in the country who want to see elected officials find ways to work together because those two are very, very good at doing that. That`s the real loss and it`s deeply offensive when the President singles them out in a way and chides them.

HAYES: Right because the irony here of course --

COSTELLO: (INAUDIBLE) they lost when they`re great people. They`re great people. They`re great leaders.

HAYES: The irony here, of course, is the least Trumpy candidates in the caucus Curbelo and Mia Love are good examples. I think you can say like they`re the least Trumpy both in effect in the way they conduct themselves and even into certain extent their politics. They`re going to -- they paid the ticket for Trump before anyone else did and they have left behind a Trumpier caucus although it`s in the minority. Joy Reid and Congressman Costello, thank you both for being with me. That was great.

COSTELLO: Thank you.

HAYES: And joining me now Representative Adam Schiff, Democrat of California. The man will very likely lead the House Intelligence Committee in the next Congress. And Congressman, you`re going to get a gavel in January. It`s a few months until then, what`s on the agenda?

REP. ADAM SCHIFF (D), CALIFORNIA: Well, I think at the top of the agenda is protecting the Mueller investigation and we certainly got to see why that`s so important within 24 hours of the election when the president fired his Attorney General and replaced him with someone whom shows every sign of being the President`s Roy Cohn, of doing the President`s bidding and of course that`s a great concern to Americans who want to see Bob Mueller be allowed to finish his work and follow the evidence wherever it leads. Indeed I think a large part of why Americans voted to provide a check on this President by flipping the House was to make sure that we could protect the rule of law.

HAYES: You refer to him as his Roy Cohn which is -- which is a reference to a quote of the President`s right? They needed his own Roy Cohn at the Department of Justice. But I`m reminded of Devin Nunez and how he worked as the chair of your committee to essentially run interference in the White House to possibly give them inside information. Are you concerned that Mr. Whitaker may be doing that from his perch as Acting Attorney General?

SCHIFF: Absolutely. I mean, there are a number of concerns with Mr. Whitaker stemming from so many of his comments that were hostile and prejudicial to the Mueller investigation, his opining on whether there was evidence of conspiracy, his opining on whether Mueller scope should include whether there were financial connections between the President and the Russians is close relationship to one of the witnesses.

All of that is a basis for him to recuse but it`s also raises the specter that he might seek to curtail the Mueller investigation privately, that he might bury a report that comes out of the Mueller investigation or as you suggest that he might take information that he`s briefed on because he will now be briefed on the intimate facts of that investigation and provide that to the President. And Congress certainly needs to get answers. Did he make commitments to the president about recusal? Is he pledged to keep confidential information that he learns. We need to get the answers those questions.

HAYES: Do you envision that that will be one of the first orders of business of a Democratic Congress in the New Year? Well, you know, I don`t know that we can wait until the New Year. I think we have to press the answer -- for answers to some of those questions right now and we ought to resume our efforts to pass bipartisan legislation either as a standalone bill or in the government funding measure. That would protect Bob Mueller. But certainly, we want to send the message right now that this new Acting Attorney General and any actions that are taken at the top by him or others will be scrutinized.

People have to expect that we are going to make sure that the ethical standards of the department are adhered to and there`s no interference in this investigation that indeed no one including the President is above the law.

HAYES: What leverage do you have at this moment? I mean, there`s this bizarre gap, right? There`s two months, a month and a half until you take the gavel, until you take actual real vested power. But a lot can happen in the next six weeks. So what leverage do you have? What can you do?

SCHIFF: Well, you know the first thing we can do and indeed did do within the last 24 hours is issue preservation orders to all the relevant agencies that they have to preserve the evidence. But probably the most powerful thing we can do right now is make it abundantly clear that we are going to demand answers when we do possess those gavels. So if there is any effort to obstruct or subvert justice here, we will find out about it and people will be held to account. So that ought to be made crystal clear from this point.

But I would also urge my Republican colleagues to do something they have thus far shown an unwillingness to do, and that is to stand up to this President and defend the rule of law. They know as well as we do that this new appointee is not qualified for this position. He`s only qualified by virtue of some very political and partisan comments he`s made which have endeared him to the President and we ought to act now legislatively to protect Bob Mueller and more broadly to protect the rule of law.

HAYES: You just mentioned your Republican colleagues, their failure to stand up to the President. Devin Nunez will now be the ranking member on that committee come January. Have you spoken to him since election night?

SCHIFF: We haven`t spoken since election night but I think certainly the Republicans on the committee understand that we`re not going to run the committee the way they did and they should be grateful for that. We`re not going to be seeking --

HAYES: Why not? Why not?

SCHIFF: Well, because they ran it in the most unethical of ways. They ran it in a way that jeopardized the relationship between the committee and the intelligence community by publishing classified information and doing so in the most fraudulent and misleading way. We are not going to resort to behaving in the unethical way they do. We are going to be tenacious though in the pursuit of truth and I think they understand that. We certainly were when they were running the shop, we will continue to be, but we will invite them to work with us. I hope that they will choose to do so but make it abundantly clear we`re going to do our job.

The days in which the Congress of the United States was either at best a rubber stamp for the President or worse was complicit in his attacks on the rule of law are over.

HAYES: There are several people that have appeared before your committee at invitation and given testimony when the Republicans have been a majority control who appear to have possibly told untruthful statements to you. Don Jr. is one of them, there`s been speculation on that, Roger Stone is another. Would you like to -- will you call back witnesses who`ve come before the committee for further follow-up?

SCHIFF: If certainly, I think very possible we`ll be bringing back witnesses that refuse to answer relevant questions and you know people that made you know, completely erroneous claims of privilege where there was no privilege to apply, or others that simply said I don`t want to answer that question when the Republicans interjected you`re here voluntarily, you don`t have to answer anything you don`t want. That`s no way of course to run an investigation. But we`re also going to seek to look at the unexplored avenues of Investigation, things that could threaten the national security of the United States, issues like money-laundering, if the Russians were laundering money through the Trump Organization and there`s some serious allegations along these lines.

That would be a powerful point of leverage of a foreign adversary over the president of United States. That would be something that could warp our foreign policy and jeopardize our national security. We may at the time we take the gavel have the benefit of a report by Bob Mueller but we may not. At the end of the day we need to continue to do what we pledged from the outside -- the outset and that is follow the facts wherever they lead.

HAYES: Final question because you just mentioned it, do you have any interaction, communication with the Special Counsel`s office? Do you have any new way of knowing when and if a report would be coming?

SCHIFF: I don`t expect to get the advance notice of when report is coming but along the lines of what you`ve been asking, I will seek at the earliest instance to be able to provide to the Special Counsel`s office if they`re not public already, transcripts of witness interviews so that the Special Counsel can have the benefit of that evidence, but also so the Special Counsel can determine whether people knowingly willingly committed perjury before our committee.

We have sought to do that already but the Republicans for whatever reason have decided they will protect witnesses even that they may believe have committed or may have committed perjury before our committee. That`s obviously going to change as well.

HAYES: All right, Representative Adam Schiff, the incoming Committee Chair of the House Intelligence Committee. Thanks for making time sometime tonight.

SCHIFF: Thank you.

HAYES: All right, as we mentioned, there are still results developing tonight. I want to bring an MSNBC National Political Correspondent Steve Kornacki. What is the latest in Arizona?

STEVE KORNACKI, MSNBC NATIONAL POLITICAL CORRESPONDENT: So Arizona, the cow is going to take days. I think it`s going to bleed into next week, but every day we`re getting updates from you know counties all across the state. We just got a big update from Maricopa County, it`s more than half the state population wise and it has put Kyrsten Sinema into the lead now in the running statewide count. So of course, when we finished up election night, she was down about 16,000 votes we said.

There`s hundreds of thousands to come so a big batch have come in from Maricopa, also a batch from Pima. This is Tucson, this is sort of her base, that`s a liberal part of the state and some of the rural counties have come in too. But the combined effect of what came in tonight is to put Sinema ahead by about 9,000 votes in the statewide count.

HAYES: So she`s plus 9,000 and there`s a -- there`s hundreds of thousands out, right?

KORNACKI: So we here`s basically what`s happening. There`s still about 340 thousand left just in Maricopa County.

HAYES: Why? Why?

KORNACKI: Arizona is -- Arizona is -- I`ll tell you what it is. What`s happening is most people cast their vote by mail in Arizona. And so these counties, these polling -- the vote counting places just get flooded with ballots so there`s that. Then there`s the group of people that show up on a -- they got their vote in the mail and they show up on Election Day and they want to cast it in person.

HAYES: I see.

KORNACKI: So there`s a backlog here and there now after Election Day they`re working their way through it. So what you have right now, the votes that are giving Sinema the lead, these are the true early votes. These are votes that were cast before Election Day, probably last week, late last week over the weekend and they`ve been at the polling place and they`re working their way through them. So the way it works in Arizona for whatever reason, the Democratic voters tend to vote more that way, the Republican voters tend to vote more on Election Day.

So the expectation was that when you started working away from that end of the line, Sinema would do well. That said, it looks like there`s still a pretty big chunk of the true early vote left to be counted. So I would expect it if she`s got the lead right now, in the next -- probably about 24 hours from now, they`re going to release their next batch, I would expect if form holds she probably grow that lead a little bit in the next one.

And the test is going to come when it turns, when they get to the true sort of Election Day, the ones that were brought into the polling places on Election Day, you expect those to start favoring McSally. There`s a significant number probably between you know, 175,000, close to 200,000, something like that from Maricopa. So then does the Sinema build up enough of a lead here to withstand the perceived McSally advantage in those final eight votes and this is going to play out I think into next week.

HAYES: Wow. I mean, it`s a remarkable story and it`s remarkably razor- thin. You`ve also got Florida right? So in Florida, Nelson is now that -- he is cut -- his deficit is like 16,000 votes.

KORNACKI: Yes. I think it`s 16,000 or 17,000. Crucially the percentage here it`s 0.22, 0.22. That`s crucial because if it`s under 0.25, it`s an automatic manual recount. You know, they take them out and count it by hand. And if it`s under just half a point, they run them through the machines again. So now we`re entering into manual recount territory for that.

There is some confusion about exactly how many ballots are left to be counted here. People is -- there`s a vote by mail that came in specifically to Broward County which is a big Democratic County and there may be some vote-by-mail ballots mailed in the Broward that are not reflected yet. So that`s the first thing. The second thing is the provisional ballots from all around the state. If you go by past on that, you`re probably looking at you know 8,000 to 10,000. That`ll be counted there. They brake disproportionately Democratic. You`d also get a small number of these overseas ballots, military ballots that you would expect break Republican a little bit.

So it`s the -- whatever the vote by mail is left from Broward it looks like, whatever you get from provisionals, whatever you get from overseas ballots, and I should say too that Nelson`s campaign attorney, there`s this discrepancy with the number of votes that were cast in the Senate and Governor`s race in Broward, Nelson`s campaign attorney is suggesting some kind of machine error. I`m not sure that`s actually what happened there but he is suggesting that publicly.

HAYES: Yes, there`s a very weird and anomalous undercount, a gap of votes in Broward County between people that vote for the governor just didn`t vote for the -- for the Senate. It`s a gap you don`t see in any other County. And we`re talking 25,000 votes here in a county that Nelson`s going to win two-to-one. But when you look at the physical ballot, there`s an argument to be made here that potentially this is -- for three percent of the voters in the county, they just didn`t see it, forgot to do it.

HAYES: All right, thank you for that. I am doomed, we`re all doomed to relive 2000 Florida for the rest of our lives. Like I would be 80 years old. I`ll be 80 years old.

KORNACKI: Yes, Broward County. There`s no -- there`s no chance this time but they`re still --

HAYES: I`ll be a brain in a vat. I`ll be watching that Florida recount. All right, thank you very much.

KORNACKI: Thanks, Chris.

HAYES: I`m joined now by a man who knows all about recounts in Florida, speaking of which, Barry Richard, the former lead counsel for George W Bush during the Florida recount in 2000, the current recount attorney for Andrew Gillum`s gubernatorial campaign. Mr. Richard, where do things stand with respect to the Gillum-DeSantis race and a mandatory state-mandated recount?

BARRY RICHARD, LAWYER OF ANDREW GILLUM: Well, I think as was commented on just a few minutes ago, the statute requires a machine recount if the margin is under half a percent. It requires a manual recount if it`s under a quarter percent. The last time I checked with Mr. Gillum`s a situation the margin was under a half a percent but over a quarter percent. So that`s my understanding of the current situation.

HAYES: And so that would require -- the state would then require a machine recount of those votes. Do you -- are you satisfied that all the votes have been counted or are there more outstanding votes you want to make sure do get counted?

RICHARD: I don`t know what the situation is on the uncounted votes. Earlier today there were still uncounted votes in some of the counties but I didn`t have a number of how many votes those work.

HAYES: You`re a veteran of this sort of thing. You were working on this in 2000, why -- how did you get from Bush 2000 to Gilliam 2018?

RICHARD: My practice has never been a partisan practice. I`ve represented Republicans and Democrats and generally, it`s whoever calls me first.

HAYES: So let me ask you them this question. What is up with Florida`s elections? Is it just a state that is so balanced on a nice edge, it just produces an unusually large amount of tight elections and so receives an unusual amount of scrutiny or is there something about the way elections are being run in that state?

RICHARD: I don`t think there`s anything particularly peculiar about the way they`re being run. All elections are messy. In 2000 we were dealing with an unprecedented situation because we never had -- we never had a -- not since we started the voting in the manner that we do today, we never had a presidential election that came down to 500 and some-odd votes in one state right.

HAYES: Right.

RICHARD: Also in 2000, our statutes were vastly different than they are now.

HAYES: Have they become better to your mind in terms of you know, automatic recounts and the like?

RICHARD: Yes, I think they`re better. In 2000, we had a bunch of statues that had been a cobbled together over decades of time. They weren`t really suited for what we`re dealing with. Everything was generated by the candidates themselves. The candidate -- the losing candidate got to decide which counties there would be recounts in. There was -- there were arguments before the canvassing boards as though they were having many trials. That`s all gone now.

HAYES: That`s good.

RICHARD: The recounts now are triggered automatically by the margin.

HAYES: Two final questions. One is Andrew Gillum did concede and he and he noted that in his statement today but he says he wants to see every vote counted. That concession, does that have any legal force?

RICHARD: No. Concessions don`t have a legal force. There -- they`ve been traditionally a courtesy that on election night the candidate that comes in second will call the other candidate to congratulate them and to concede. If the vote count changes over time, it`s not like a contract was signed and that goes both ways. I think that -- I think that if it had gone the other way, I would expect that Mr. DeSantis would have called Mr. Gillum to congratulate him and to concede, but they`re not legally binding.

HAYES: The governor appears to now be suing the Broward County Board of Elections over their processes. I don`t know if saying that essentially liberals trying to steal this campaign. That`s in the -- that`s in the Scott Nelson race first Senate. Do you have any read on that?

RICHARD: No, I`m not involved in the strategies with the -- with the Scott Nelson campaign. As far as Mr. Gillum is concerned, no lawsuits have been filed and there are no -- there`s no anticipation of filing a lawsuit at this time. Mr. Gillum is waiting for the system to work its way out and he`s intending to abide by the results.

HAYES: All right, Barry Richard, many thanks. Coming up, protesters take to the streets to try and protect the Mueller probe as the critics of the President -- as critics of the President`s pick for Acting Attorney General get louder. That story next.

(COMMERCIAL BREAK)

HAYES: Tonight, there are protests across the country in response to the president`s appointment of Matthew Whittaker as acting attorney general of the United States. And it`s pretty clear why he did it, so that Whittaker could be functionally a lackey for the White House.

The man who has already been shown to be conflicted by his multiple repeated derogatory public statements about the Mueller probe will reportedly not recuse himself. Washington Post reporting that, quote, two people close to Whittaker said he has no intention of taking himself off the Russia case, and they strongly believe he would not approve any request from Mueller to subpoena the president.

Something else to consider, now that he`s the acting attorney general, what is stopping Whittaker from, say, funneling all kinds of information about the Mueller investigation directly to the president.

But before you even get to those issues, it`s still very unclear that it`s even legal for Whittaker to have this job in the first place. A dream team of lawyers, Neil Katyal and George Conway writing in The New York Times today, quote, "Mr. Trump`s installation of Matthew Whittaker as acting attorney general is unconstitutional, it`s illegal and it means that anything Mr. Whittaker does or tries to do in that position is invalid."

And joining me now, the co-author of that piece, Neal Katyal, former acting solicitor general for President Obama.

OK, Neal, why is it unconstitutional and illegal?

NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: Well, the constitution flatly prohibits Mr. Whittaker from being the acting attorney general. Our Founders put in to Article 2 of the constitution the requirement principle officers and heads of departments, of which the attorney general is kind of the quintessential case, have to be confirmed by the senate. And here what you have is President Trump reaching into the bowels of the Justice Department and appointing essentially a constitutional nobody, someone who the senate has not confirmed to this task.

And, you know, it`s one thing if it`s an emergency or something like that, but this is the opposite of that. Here you`ve got situation in which the president already has his own people in the deputy attorney Rod Rosenstein, the solicitor general Noel Francisco, these are people who the president has nominated but importantly the senate has confirmed to high Justice Department positions. Whittaker has none of that.

HAYES: So your point is that if he wanted to put in someone as an acting attorney general who senate confirmed, even if they came from another department or within the Justice Department, that`s fine. It`s taking someone who the senate has never confirmed, has never exercised the constitutional advice and consent and elevating him to the highest law enforcement office in the land that you say is illegal.

KATYAL: That`s exactly right, Chris. I mean, the attorney general has awesome powers. The powers to literally to put somebody to death or to supervise the solicitor general or the 94 U.S. attorney prosecutors all of whom are senate confirmed in the country.

And this really underscores the wisdom of our founders, this is something actually that Justice Thomas, who is the president`s favorite sitting justice, wrote about three years ago. He said the founders said we distrusted the idea that any one president, no matter how wise, wouldn`t abuse his powers and nominate people and install people to department heads like the attorney general and abuse their authority. And, you know, Justice Thomas talked about how Madison and others thought there might even be a corrupt president one day and who would do those things.

And when you look at what the president did yesterday it stinks to high heaven constitutionally speaking.

HAYES: Andrew Napolitano, who is a conservative as well over at Fox News, you just cited Justice Thomas -- I want to play you what he had to say. He is making essentially the identical argument from the other part of the ideological spectrum. Take a listen.

(BEGIN VIDEO CLIP)

ANDREW NAPOLITANO, FOX NEWS: Under the law, the person running the Department of Justice must have been approved by the United States Senate for some previous position, even an interim post. Who is that person? Rod Rosenstein.

The president has taken Whittaker and promoted him above Rod Rosenstein.

(END VIDEO CLIP)

HAYES: So there is some agreement there.

KATYAL: There is. And I think that underscores something else, you know, the constitution is profoundly a bipartisan document. And when you follow it, sometimes conservatives benefit, sometimes liberals benefit. But the thing that`s happening in this country right now is that some people are seeing the constitution as just a political document, a document for the mighty. And that is maybe the most destructive thing about this presidency. He treats the constitution like a tax code, something he can loophole this way or that. And I fully expect that Whittaker`s appointment will be challenged and ultimately ruled unconstitutional.

HAYES: OK, so take me through that. So, the question becomes -- there`s - - you present a case who has standing and what`s the remedy? How do you pursue that case?

KATYAL: Yeah, so I think there`s lots of different ways, but before you even get to that question, I think the intersection with the election on Tuesday is important. Because the House Democrats now have a whole suite of tools available to them. They can block funding for the Justice Department entirely if they don`t like this attorney general. They could block certain funding. They could say, we`ll only fund Mueller and we won`t fund this fake attorney general. There`s so many possibilities for them now as a result of the election.

But with respect to the court case, yeah, I think there`s lots of possibilities. You know, I argued the sanctuary cities case yesterday, which was -- I walked into court at 2:00 p.m. It was called City of Philadelphia versus Sessions. By the time I left the courtroom, we didn`t know what the case was actually even called. And that underscores the fact that every litigant in this country who is facing the Justice Department can make these arguments and say, you`re trying put me in jail, Justice Department? You don`t have the authority. You have a fake attorney general.

HAYES: So, anyone who has the attorney general on the other side of your case has standing to say, look, you don`t have the authority that you`re exercising right now in court. You can`t do whatever it is that you`re doing on the other side of this case?

KATYAL: That`s precisely right. And not only that, senators have standing because the founders put them in control of the consent function, you know, consenting to the approval of nominations for the attorney general and the like. So, the list of people who can sue is frankly endless.

HAYES: Wow. Well, Neal Katyal, that was extremely edifying. Thank you very much.

KATYAL: Thank you.

HAYES: Still ahead, the biggest election night lesson for Democrats looking to defeat Trump in 2020, plus tonight`s Thing One, Thing Two starts next.

(COMMERCIAL BREAK)

HAYES: Thing One tonight, if there is one thing President Trump is really good at, it is watching television, which is why so many people looking to persuade and manipulate him, or even just suck up get themselves on the TV machine to do it. That apparently is how this guy, Matt Whittaker, CrossFit enthusiast, conservative activist, former U.S. attorney for the Southern District of Iowa, poster of cat GIFs, got to be the acting attorney general of the United States of America.

(BEGIN VIDEO CLIP)

MATTHEW WHITTAKER, FORMER U.S. ATTORNEY IN IOWA: I think it`s just very dangerous to suggest the president of the United States is completely beholden to I guess the Russian mafia or the Russian government.

I don`t see anything that suggests there was collaboration just based on one meeting.

You would always take that meeting. You would have somebody from your campaign...

UNIDENTIFIED FEMALE: You would always take that meeting, so...

WHITTAKER: The ethics laws and the conflict of interest rules do not apply to the president.

While Manafort says that he`s cooperating, it is not in a sense of that he`s talking to the feds and spilling his guts, it`s a more I`m trying to be helpful and so that is actually good for Trump team.

(END VIDEO CLIP)

HAYES: Whittaker went from CNN contributor to running the United States Department of Justice in a little over a year.

And Trump doesn`t even like CNN, so he says. That other channel, Fox News, hat`s a whole other story. We call it Trump TV for a reason. That`s Thing Two in 60 seconds.

(COMMERCIAL BREAK)

HAYES: There was obviously a direct connection between the White House and Trump TV. Disgraced former executive Bill Shine is now White House communications director, a job previously held by Hope Hicks who is set to become Fox`s new chief communications officer.

This week heading into the mid-term elections, two of Trump TV`s biggest stars actually went out and hit the campaign trail to stump for their boss.

(BEGIN VIDEO CLIP)

SEAN HANNITY, FOX NEWS: The one thing that has made and defined your presidency more than anything else, promises made, promises kept.

By the way, all those people in the back are fake news.

UNIDENTIFIED FEMALE: Do like the fact that this man is the tip of the spear who goes out there every day and fights for us? Vote for Donald Trump and all -- not all the people who are running for the Republican Party.

(END VIDEO CLIP)

HAYES: Now, you may be asking yourself, they`re all OK with that over there? Aren`t they supposed to be a news channel? Well, sort of.

Quote, Fox News does not condone any talent participating in campaign events. This was an unfortunate distraction and has been addressed.

Look how it`s a little passive-aggressive.

Well, there you go, not condoned. Although, just a few hours after that statement, Laura Ingraham tweeted, "Connecticut, it`s time to break free from high taxes, corrupt governance, vote Bob Stephanowski for governor."

Laura, that is not condoned. Oh, well, Bob Stephanowski lost anyway.

(COMMERCIAL BREAK)

HAYES: Democrats made incredible gains in metro areas and suburbs this election, including remarkably, Tarrant County in Texas, which was one of the last reliably red large metro areas in the country., that`s until Democrat Beto O`Rourke flipped it on Tuesday.

But in rural white America, Democrats are losing new ground to Republicans. Take, for example, Democratic Senator Claire McCaskill of Missouri who lost her seat on Tuesday as Vox reports, quote, in 2012, McCaskill won rural Saline County by 22.5 points. In 2018, she lost it by 21.4 points, and lost her reelection bid due to similar rural swings around the state.

Now, the problem for Democrats headed into 2020 is that those rural often white voters are literally worth more in the U.S. Senate and crucially the electoral college. And Democrats need to figure out how to win over some of those rural areas or risk repeating 2016. We`ll talk about that next.

(COMMERCIAL BREAK)

HAYES: There is a growing Republican margin among white rural voters, not uniformly, but in many places, and due, it seems, in large part to the activation of racial anxiety, not economic anxiety. But Democrats cannot just dismiss those voters if they want to win statewide elections, or the next presidential election.

Here to talk about what Democrats can do to win over those voters, ProPublica reporter Alex MacGillis and Astead Herndon, national political reporter at The New York Times.

And Alec, you`ve been writing about this for a while. And you wrote a long thread today about Ohio where those rural the margins just absolutely annihilated Rob Cordray. He lost 15 counties, 70-30. What`s your take on what`s going on?

ALEC MACGILLIS, PROPUBLICA: Well, my main take is that while racial anxiety is obviously playing a big role here, and that Trump has activated something quite ugly in a lot of these places, the other thing that Democrats are grappling with here is this real problem we have now of regional inequality, where you have growing gaps between the metro areas and rural areas, not just rural areas, but small towns, small towns and cities that are really falling behind.

And you just look at the numbers, and they are. There`s this growing economic gap. And the problem with this is it creates this resentment in the sort of left behind places where people see this growing prosperity in the cities and they feel completely detached from it. And they also see that the Democrats are increasingly the people of those cities, that these cities are now dominated by Democrats.

And so the Democrats have become in a way the party of this sort of highly mobile prosperity that these voters feel detached from.

The flip side of that of course is that it`s harder for Democrats then to sort of reach out to them because they themselves have become very detached from these voters and just don`t have a sense of just how bad the crisis has become in rural and small town, small city America.

HAYES: You`ve been covering a lot of this. There is one candidate I thought was interesting who you covered who sort of flipped the script on this, Antonio Delgado, who is an African-American Rhodes scholar, ran in New York 19, a rural district, 80 percent white, large white, non-college, not the suburbs. And his opponent ran against him as a big city rapper, and Delgado prevailed.

ATEAD HERNDON, THE NEW YORK TIMES: Yeah, he is kind of the model for what we`re talking about here. I mean, Delgado was someone who used the credentials from the city. He was an attorney in Hew York, but also had the bona fides in that area, grew up not far from that district, and had a family who was rooted there, and was able to really lean into messages that were outside of what his opponent, the identity-driven stuff his opponent was attacking him from.

Delgado talked almost almost exclusively about health care, almost exclusively about inequality from the city to these places, and that really resonated with voters. But one thing that I would say is that`s actually a benefit that diverse candidates have. They drive interests. And they`re able to stay away from issues of identity because they embody them personally. So if you talk to people on some of the Democratic side, they say that`s why you choose a candidate like that so they can talk about everything else.

HAYES: Yeah, it`s interesting. What do you make of that? I`ve heard this argument and I`m increasingly persuaded by it. You see Lucy McBath in Georgia 6th, which we should say is a suburban district, Antonio Delgado, Alec, that in some ways that non-white candidates of color have a sort of campaigning, which they -- they -- because they embody diversity there`s a sort of less rhetorical emphasis placed on it in the campaign itself.

MACGILLIS: There really may be something to that. I mean, look at the other person that comes to mind is Barack Obama. I mean, Barack Obama got decent margins in a lot of these places, and that`s a big reason why he won. He lost lot of these counties, but he would get 40 percent. Hillary Clinton got 20 percent or 25 percent. And in that margin lies defeat.

The other part of that is that if you have someone who is highly charismatic, almost regardless of their racial ethnic background, it`s going to help to sort of deal with what I think is a media problem in these places where door to door campaigning has become less valuable in a lot of these communities because everything is Fox, everything is Facebook, everything is talk radio, so you need to have someone who becomes almost kind of a sensation in their own right as a candidate to kind of break through that. You have to become almost in your own small way kind of a media star.

HAYES: That`s interesting. And I`m thinking about Beto O`Rourke in Texas who did -- in some places did -- brought down those rural margins. JD Scholten, who ran against Steve King in Iowa 4 where their whole thing was showing up. That almost became the message in and of itself. Like, you may not like me or my politics, but I`m going to come to you and listen to you.

HERNDON: It`s about authenticity, too. I mean, if we go back to Ohio, I saw Cordray tweet today today, now that I`m no longer running I`m now free to talk about issues in a different way. And I thought to myself that`s actually the difference within some of these candidates, they believe if you are your most authentic self, if you talk about issues even as passionately, even if they`re outside of what the voters traditionally care about, they`ll give you points for that.

And that`s the models of the Betos of the world, that`s also the motto people like Gretchen Whitmer and the more Michigan folksy type of way.

HAYES: And Michigan is one place where those rural margins were considerably lower, and that is precisely why Gretchen Whitmer one and Hillary Clinton lost that state.

Alec MacGillis and Astead Herndon, thank you both.

That is All In for this evening. The Rachel Maddow Show starts right now. Good evening, Rachel.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END