Show: ALL IN with CHRIS HAYES Date: November 9, 2018 Guest: Rebecca Davis O`Brien, Jamie Raskin, Berit Berger, Maura Healey, Steve Schale, Mitchell Berger, Lauren Groh-Wargo, Karine Jean-Pierre
(BEGIN VIDEO CLIP)
CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Whoa, I didn`t know what happened.
HAYES: Bombshell reporting from The Wall Street Journal.
MICHAEL COHEN, FORMER LAWYER OF DONALD TRUMP: When it comes time for the financing which will be --
TRUMP: What financing?
HAYES: Tonight, the new report that the President of the United States himself directed a criminal conspiracy to help get himself elected.
COHEN: We`ll have to --
TRUMP: Pay with cash.
COHEN: No, no, no, no, I got -- no, no, no.
HAYES: Then --
TRUMP: I can tell you Matt Whitaker is a great guy. I mean, I know Matt Whitaker.
HAYES: The President caught pretending he doesn`t know the man he appointed to oversee the Mueller Probe.
TRUMP: I know Matt Whitaker.
Matt Whitaker, I don`t know Matt Whitaker.
HAYES: And the growing bipartisan fears over what Matt Whitaker is up to.
UNIDENTIFIED FEMALE: Do you want him to rein in Robert Mueller?
TRUMP: What a stupid question.
HAYES: All that and the fight to count all the votes in Florida.
ANDREW GILLUM (D), GUBERNATORIAL CANDIDATE, FLORIDA: Let`s count every vote and let`s bring it home.
HAYES: A brand new vote count in Arizona and Stacey Abrams campaign manager on her fight to force a runoff.
STACEY ABRAMS (D), GUBERNATORIAL CANDIDATE, GEORGIA: We believe our chance for a stronger Georgia is just within reach.
HAYES: When ALL IN starts right now.
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HAYES: Good evening from New York I`m Chris Hayes. Tonight there is palpable panic and federal desperation emanating for the President United States from his enablers in the Republican Party as well. In a possible dry run for 2020, Trump and his allies are now making unhinged claims of electoral fraud despite a total lack of evidence. His effort to short- circuit the vote counting in Florida, Arizona, and Georgia seems to be a rearguard attempt to thwart possible Democratic victories in the wake of a Midterm Election that looks with each passing hour more and more like a Democratic blowout.
We`ll much more on the ongoing races later in the show including the absolutely crazy situation developing in Florida and the increasingly good news for Democrats coming out of Arizona where the lead for Democratic Kyrsten Sinema has been growing. With his back against the wall, Trump`s attempt to replace Jeff Sessions at the Justice Department with a lackey appears to be blowing up in his face.
And with each day bringing new and wildly damaging headlines including the revelation, the FBI is currently investigating the company where he was an advisory board member. Momentum has been steadily building against Acting Attorney General Matt Whitaker with the backlash reportedly prompting concern at the White House. Conservative legal scholars calling Trump`s appointment unconstitutional. Then there`s today`s huge news from The Wall Street Journal concerning this lie from the president
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UNIDENTIFIED FEMALE: Did you know about the $130,000 payment to Stormy Daniels?
TRUMP: No, no. What else?
UNIDENTIFIED FEMALE: Then why did Michael Cohen make it if there was no truth to the allegations?
TRUMP: Well, you`ll have to ask Michael Cohen. Michael is my attorney, and you`ll have to ask Michael.
UNIDENTIFIED FEMALE: Do you know where he got the money to make that payment?
TRUMP: No, I don`t know.
(END VIDEO CLIP)
HAYES: No idea. Nothing to do with it. Nope, you got to ask him. Well, it appears that Trump didn`t just know about the payment, it appears he directed it and there is reportedly proof of that. A blockbuster report published today from the Journal reveals that Trump played a central role in the hush payoffs to both Stormy Daniels and Karen McDougal and crucially that federal prosecutors have gathered evidence of the President`s participation in transactions that violated Campaign Finance Laws.
Remember, one of the crimes that Michael Cohen pleaded guilty to in federal court was making those hush money payments in violation of Federal Campaign Law. He said under oath in that court that the President himself directed those illegal payments. And now we know that prosecutors have evidence to back him up. And that crime, and that`s what it was, it was a crime, it`s already been pleaded to guilty, it was material to the President`s victory. In fact, crucially, it was one of two different criminal conspiracies designed to get President Trump elected. One involving Russia which has resulted in at least 28 guilty pleas or indictments so far and the one involving the hush-money payoffs in which the President is now directly implicated.
With me now one of the reporters who broke today`s payoff news Wall Street Journal Reporter Rebecca Davis O`Brien who covers white-collar law- enforcement. Incredible reporting.
REBECCA DAVIS O`BRIEN, REPORTER, WALL STREET JOURNAL: Thank you.
HAYES: So, OK, how involved according to your reporting and according the evidence you`re reporting suggests SDNY has, how involved was the President in the hush money payments?
O`BRIEN: Right. So as you mentioned just the step back for a second when Michael Cohen stands up in federal court and says he does something at the direction of the candidate, we all say oh that`s Donald Trump and we spent the last few weeks, months trying to figure out what at the direction of Donald Trump looks like. As we`ve reported and people kind of widely know, Donald Trump is very careful with his money so it wouldn`t be totally surprising if he was aware of how money was directed.
HAYES: These are six-figure sums and the idea that like checks are just being written in Donald Trump who is notoriously stingy is just like, whatever.
O`BRIEN: Right. So our thinking was how can we figure out what exactly that meant, that when Michael Cohen said that in court. And it looks like from the very earliest stages of his campaign, he was, Mr. Trump was concerned about -- he and his advisors are concerned about potential women coming forward and he reached out to his friend David Pecker in August 2015 and the rest has be outlined in our story is history.
HAYES: Well, what you outlined the story is that beginning with a meeting with David Becker saying what can you do for me, he was at the center of the efforts to direct hush money to keep women quiet.
O`BRIEN: Well, we say that he was aware of or direct participant in and briefed on all those -- all these various -- the arrangements as they came together.
HAYES: Well, let me ask you this what evidence according to reporting does the Southern District of New York which has a case against Michael Cohen, I mean they pleaded guilty, what evidence do they have of this.
O`BRIEN: Well, we don`t know all the evidence or you know, but I -- it`s our article includes one detail which is even before Michael Cohen pleaded guilty they had what was at one point at least an 80 page draft indictment that included more information about what Mr. Trump was -- what his role was. We know that they -- going into that guilty plea they had that tape that in which Michael Cohen and Donald Trump were discussing the payments are buying the Karen McDougal story and I -- and since the plea, I Michael Cohen as we report has been speaking to them and presumably opening up a little bit more you know, as be reported telling a little bit more about the background of those papers.
HAYES: Let me just play for to remind people about that the tape because the interaction shows that like they`re talking about this. Take a listen to the tape.
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COHEN: I need to open up a company for the transfer of all of that info regarding our friend David you know, so that -- I`m do that right away. I`ve actually come up --
TRUMP: Give it to me.
COHEN: And I`ve spoken to Alan Weisselberg about how to the whole thing.
When it comes time for the financing which will be --
TRUMP: One second. What financing?
COHEN: Well, I have to pay.
TRUMP: Pay with cash.
COHEN: No, no, no, no. I got -- no, no, no.
(END VIDEO CLIP)
HAYES: All right, so that`s the discussion. Final point here and I just think it`s important for legal purposes, what Michael Cohen, one of the things he pleaded guilty to in federal court was a criminal violation of campaign finance law because that was an illegal donation essentially made to the Trump campaign, correct?
O`BRIEN: Yes, it`s an in-kind campaign contribution.
HAYES: Right. And so, potentially if Donald Trump weren`t the President of the United States, if he were the campaign manager and told Michael Cohen to do that, there`s potential legal liability for the person that instructed a person to make an illegal donation?
O`BRIEN: Right. And I think one -- even if Donald Trump weren`t president, right? There`s a question of state of mind, and I`m not the legal expert here, but you know, there`s definitely a question of you know, Michael Cohen and now we know that prosecutors also have sort of suggested that -- or not suggested, said more strongly that the President of the United States may have --
HAYES: Committed a crime.
O`BRIEN: -- committed a crime.
O`BRIEN: I have to be careful.
HAYES: Well, no, you are, but it`s just -- so people are what`s going on here. Rebecca Davis O`Brien, great reporting and thank you for being with us.
O`BRIEN: Thank you so much.
HAYES: with me now, the right -- the Vice Ranking Member of the House Judiciary Committee, Democratic Congressman Jamie Raskin of Maryland, also a Member of the Oversight Committee. Congressman, I understand Democrats who have just about to take the gavel in January and just won this big victory, you want to be very careful, don`t want to get out ahead of the facts, but your honor Judiciary Committee and there`s a story in the Wall Street Journal that suggests strongly there`s evidence the President helps give it a federal crime.
REP. JAMIE RASKIN (D), MARYLAND: That`s right. Well, just to underscore what you start off with, we want to get back to the business of the American people and we want to deal with all of the crises that are engulfing America now like the crisis of gun violence, the decay of our infrastructure, and so on and we`re putting that first. But having said that, obviously, we cannot ignore crimes that are taking place at the highest levels of government. Look, Chris, there`s only two parts of Federal Campaign Finance Law that are really left. One is a ban on direct corporate contributions to federal campaigns and the other is a limit of $2,700 for individual contributions.
These $130,000 payments, tens of thousands of dollars going to the President`s mistresses from either corporations or individuals completely violate the campaign finance laws and this reporting suggests that the President was directly involved. That is a federal crime. That`s a felony for the President to or for anybody to be involved in deliberately circumventing the Campaign Finance Laws and we have every indication that that`s what`s taking place.
I suppose the question of fact will be the President saying well, I was trying to protect my marriage if it ever got you know down to it versus I was trying to advance my campaign. And that`s a question of fact that a judge or a jury would have to determine but it is of relevance here that the President used to brag frequently of his affairs and you know, various romantic entanglements while he was married in the press so he didn`t make much of an effort to cover up those relationships until he was running for president and then it was right in the heat of the campaign that they directed those money they talked about the campaign when the hush payments were being made.
HAYES: Yes, weeks before the campaign and I think that`s part of the fact, the sort of the factual record that made it difficult for Michael Cohen to avoid a guilty plea on precisely this question. I mean, he has pleaded guilty and stipulated that this was an illegal campaign donation.
RASKIN: Right so you know, look in the compendium of Trump`s crimes, maybe this isn`t in the top five, but it`s probably in the top ten and it`s something that Americans have got to take very seriously --
HAYES: Well, just to be clear here, Congressman, you`re on the Judiciary Committee. Like we -- I know that you know, the President has done a lot of stuff and he`s done a lot of awful stuff and maybe done a lot of illegal stuff but this is -- there`s prima facie evidence here of the President`s involvement in committing a crime and you`re on the committee that starts impeachment proceedings which is the only legal recourse for the president being a criminal.
RASKIN: Well, that`s right. And look, for any other presidency this would clearly be the number one offense that we`d be dealing with. I mean, it`s an extraordinary crime when you think about it --
HAYES: Yes because it pertains materially to his victory in the election. It`s not just -- it doesn`t you know, it`s not just some random he did. He did it in the waning days of an election. He won by 77,038 votes across three states.
RASKIN: Right. And look, understand that what we have here is a concealment of campaign payments. It was an effect you know, an in-kind campaign contribution that went from this corporation to the mistresses in order to purchase their silence to basically cover up their stories and to nullify the political impact of them. And you know the prosecutions have been brought on the exact same theory before, it was brought against John Edwards in his campaign and this is the exact same thing, except I think there`s even a much more dramatic and vivid paper trail here of what actually took place.
HAYES: Right. Final question, it does -- if in fact, the President did this, let`s stipulate that he did, is it a high crime in misdemeanor in the context of the Constitution?
RASKIN: Well, again, I think you`ve got to look in the context of everything that was taking place in the campaign. But I would think that deliberate violations of Federal Campaign Finance Laws that have been in place for decades that were well understood could constitute a high crime in misdemeanor, an assault against the rule of law, and assault on democracy.
HAYES: All right, Congressman Jamie Raskin who`s on the House Judiciary Committee, thanks for being with me.
RASKIN: You bet.
HAYES: Joining me now for more on where things stand former Federal Prosecutor in the Southern and Eastern District New York Berit Berger and MSNBC Justice Analyst Matt Miller, former Spokesperson for the Department of Justice. Let me start with you about SDNY here, right, you work there?
BERIT BERGER, FORMER FEDERAL PROSECUTOR: Yes.
HAYES: OK. I don`t want to read too much into this story coming out now but it does strike me that Matt Whitaker takes over the Department of Justice. SDNY has an active investigation and apparently have some goods and that it`s not an accident that we`re learning about this now as they may be worried about what exactly the new Acting Attorney General is going to do.
BERGER: Right. Like the idea is that by leaking this, this is some sort of a safeguard that if this investigation gets tanked or shut down but at least in the court of public opinion you know, the information is out there. All that being said, I think it`s incredibly unlikely that you know the prosecutors themselves were the ones that were actually leaking the stuff about this investigation. I mean, these are you know pros. They deal with these kinds of high you know, sensitive investigations all the time. I really can`t imagine that this kind of leak is coming from the Southern District.
HAYES: Matt, what do you think about this -- we`ve talked a lot about the Mueller investigation with respect to Matt Whitaker, we know his thoughts on that, and today is a reminder there is another investigation happening separate and parallel to the Mueller investigation into criminal activity surrounding a President that`s already gotten some guilty pleas in the Southern District. How insulated is that from the whims of the new Acting Attorney General?
MATT MILLER, MSNBC LEGAL ANALYST: You know, it really depends what he tries to do. Whether he wants to reach into the Southern District New York and give them direct orders under this. But I will tell you, SDNY did not earn the nickname Sovereign District of New York for no reason. They got that nickname because they like to function sometimes as they are completely -- as if they are completely independent from the rest of the Justice Department.
And you know, U.S. Attorneys -- I think a lot of people miss this. U.S. attorneys don`t technically have to get approval from superiors at the Justice Department to bring indictments. They will often brief them on big cases but if there`s any office that`s known for not doing that for giving you a heads-up at the last moment, it`s SDNY. And so I would think -- you know, I would think they would already have been very sensitive with dealing with main Justice on this case.
I think the removal of the Attorney General and his replacement by someone who is just you know, obviously a political stooge there to protect the President, I don`t think there`s a lot of debate about that at this point, I think they`re going to be very careful. Especially since -- remember that for the purposes of this investigation, the U.S. attorney who`s a political appointee of the President is recused and it`s being overseen by a career official who I think will be very careful, will try to move on his own.
And to the question you asked, I doubt -- I tend to agree that it probably wasn`t the prosecutors that leaked at this point. But if they start to feel that they`re being leaned on by DOJ in an inappropriate way, you know, you`ll see kind of a repeat of the Comey example I think where there will be a lot of memos written and a lot of leaks to the press.
HAYES: On the law, on the subject of the law I want to ask you a question that I was asking Rebecca a moment ago. If this was the campaign manager and not the President of the United States right, so just a normal dude, and you had these facts, would that person be facing criminal exposure?
BERGER: Right. So assuming that you had the facts and the witnesses that could support them --
BERGER: Exactly. Absolutely these would be the type of -- I mean we know that they`re the type of charges that would be brought because they charge Michael Cohen with these kinds of crimes, so absolutely. I think we can maybe safely assume that they are probably not gearing up to indict the President, however --
HAYES: Right, but my point being --
BERGER: Right. If this was somebody who was not the President who`s theoretically had committed similar types of crimes, absolutely this office, that unit would 100 percent be bringing these types of charges. They are you know, aggressive and they are you know apolitical. This is an office that charges people from both sides of the aisle without any regard to you know, political party, they are you know aggressive but only when they have the evidence to back it up. So if the facts were there, I would absolutely think that they would be bringing these charges.
HAYES: And Matt, I mean, all of this is happening in the context of just the sheer insanity of Matt Whitaker being Acting Attorney General of the United States. I mean, we have a story today. I mean, the story today, the FBI has an open criminal investigation into like the scam operation that was shut down by the FTC that billed people of millions of dollars that he was on the advisory board of. The FBI currently has an open criminal investigation and this is the chief law enforcement officer the United States of America.
MILLER: Yes. Look, it`s absurd. And I think not only -- it`s not just a problem that he was on the board of this company but he actually used his position as a former U.S. Attorney to try to threaten a customer of that company who was trying to blow the whistle. He`s threatened to go to the Better Business Bureau. There`s this e-mail that that`s now in the public record. There are a lot of you know, they are -- you know, you can go kind of down the list of all the reasons why Matt Whitaker shouldn`t be Attorney General, views completely outside the mainstream.
You know, this record with a basically a scam company that was shut down by the FTC, and obviously the biggest one is that it`s clear that the reason why the President skipped the Deputy Attorney General, the Solicitor General, the Senate confirmed heads of the National Security Division. (INAUDIBLE) you can kind of go down the list and put this person in place because of his documented public hostility to the Mueller case.
Now, to get to what that means for the SDNY, I think I go back to the point that people there will be watching this very closely, will be very nervous, and they will -- they will be making decisionsin the coming weeks that if I don`t technically have to go to main Justice for anything, I`m not going to. And the last question I really have is what does the in game look like for them? Is it kind of some joint report with Bob Mueller that goes to Congress? Is it a grand jury report that lists all this? We don`t know the answer to that but I`m sure those are the questions they`re thinking through since as you say they probably can`t indict the President.
HAYES: All right, Berit Berger and Matt Miller, thank you both for being with me.
BERGER: Thanks, Chris.
HAYES: Coming up, much more on the growing bipartisan fears over President Trump`s pick for Acting Attorney General. Now the President himself pretending he`s never even met the man. Is Matt Whitaker in trouble? That`s next.
HAYES: Today after a 48-hour barrage of criticism of his pick to be Acting Attorney General, Donald Trump claimed he had not talked to Matthew Whitaker about the Mueller investigation.
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UNIDENTIFIED MALE: Have you talked with Matt Whitaker at all about the Mueller probe?
TRUMP: I didn`t speak to Matt Whitaker about it. I don`t know Matt Whitaker. Matt Whitaker has a great reputation and that`s what I wanted.
(END VIDEO CLIP)
HAYES: OK, there are three factual statements made there. I didn`t talk to him about Mueller, I don`t know Matt Whitaker, and he has a great reputation. Two of the three are provably false. Matt Whitaker does not have a great reputation. According to The Daily Beast, one trial attorney inside the Justice Department said "He`s an effing fool. He spent so much time trying to suck up to the President to get here but this is a big job. It comes with many responsibilities. He just simply doesn`t have the wherewithal."
Whitaker was even on the advisory board of a company World Patent Marketing accused of scamming millions from customers, a company which is still actively being investigated by the FBI according to The Wall Street Journal. OK. That alone should disqualify Whitaker from leading the Justice Department. As for Trump not knowing him, let`s check in with Fox and Friends when President Trump called in a few weeks ago and Steve Doocy asked about this October 10th Washington Post story claiming Trump was thinking of replacing Sessions with Whitaker.
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STEVE DOOCY, HOST, FOX NEWS CHANNEL: Anything to that story?
TRUMP: Well I`ve never talked about that but I can tell you Matt Whitaker is a great guy. I mean, I know Matt Whitaker but I never talk about conversations that I had.
(END VIDEO CLIP)
HAYES: Wait, what? For clarification, let`s just play what the President said today and what he said a few weeks back ago back to back.
(BEGIN VIDEO CLIP)
TRUMP: I didn`t speak to Matt Whitaker about it. I don`t know Matt Whitaker.
I mean, I know Matt Whitaker.
I don`t know Matt Whitaker.
I mean, I know Matt Whitaker.
I don`t know Matt Whitaker.
I mean, I know Matt Whitaker.
(END VIDEO CLIP)
HAYES: Today, 18 attorneys general called on Whitaker to recuse himself from the Mueller investigation and the co-author of that letter to Matthew Whitaker joins me now, Massachusetts Attorney General Maura Healey. So what is the case that you a layout in the letter? Why write this letter to the Attorney General?
MAURA HEALEY, ATTORNEY GENERAL, MASSACHUSETTS: Well, Chris, I just think it`s really important that as prosecutors we step forward and state what I think is evident to the American public and that is we need a Justice Department that the public can trust and can rely on. This isn`t a partisan issue. This is a matter of democracy and the rule of law. And if Matthew Whitaker was installed to interfere or impede the Mueller investigation, that`s illegal and it sure sounds like obstruction of justice.
And there are basic -- beyond that, Chris, you know, there are basic rules around the ethics that govern prosecutorial conduct and he is way over the line and absolutely should not only be recusing himself but I think based on what we`ve learned today you know, the Deputy A.G. should be appointed again in charge and there should be a process in place for the appointment of an Acting Attorney General.
HAYES: Is your objection based on just the appearance of impropriety based on the public record of statements he`s made or do you think that`s enough.
HEALEY: Absolutely. You know, as prosecutors, our job is really to guard the impartiality, the integrity of investigations, that`s why there are ethics rules in place at the Department of Justice and at prosecutors` offices all over this country. And that is why we came together as the chief law enforcement officials in our States, as prosecutors who understand those obligations to say this is so wrong, it`s so wrong. And as a matter of rule of law, as a matter of what -- you know, it`s so important in terms of the public trust here, this needs to be called out and call it for what it is.
HAYES: There`s a growing chorus of folks, some people who are we used to be at the Justice Department both Liberals and Conservatives saying that this appointment actually isn`t even constitutional. It`s not legal because the Attorney General is a principal officer in the view of the Constitution and the Senate has not offered its advise and consent because he has not been Senate approved. There`s a bunch of people making his argument. You`re someone who would be in a position to do something about that. You could bring a lawsuit on that -- those terrains. I wonder what you think of that argument.
HEALEY: Well, I think those are absolutely correct arguments and I think they point out what is so wrong with this. It is illegal, it`s unconstitutional, and you know, as with so many things we`ve seen from this President, we`re facing a situation that just hasn`t occurred before. Let`s just remember, there is no precedent for appointing an Acting Attorney General who`s been vetted or confirmed by the Senate. So we are in foreign territory right now. I think as prosecutors, we need to be clear about what the rule of law requires and what the obligations of the Attorney General are.
The Attorney General is not the President`s personal lawyer. The Attorney General runs the Department of Justice on behalf of the American public. And to the extent, there`s been interference that not only is possibly an obstruction of justice, Chris, but it raises serious legal and constitutional questions. As A.G., I think we have to take whatever action is necessary but my hope is that with the growing consensus around this issue, Matthew Whitaker steps down, Deputy Attorney General steps in and is in charge and we can be on to a process of vetting and properly appointing an Acting Attorney General.
HAYES: All right, Massachusetts Attorney General Maura Healey, thank you very much.
HEALEY: Good to be with you, Chris. Still ahead, the Republican fight to stop counting votes, stop counting votes in the Florida election continues as Democrats draw even closer. We`ll show you why Rick Scott and Ron DeSantis are getting nervous with two people who know exactly what is happening in Florida. It`s confusing, next.
HAYES: Republicans from the president on down are united in their attempt to stop counting votes in Florida`s senate and gubernatorial elections before the final tally. Donald Trump today echoing the baseless claims of Florida governor and senate candidate Rick Scott who accused election staff in Broward County, with no evidence, of fraud, he even talked about getting law enforcement involved even while votes are still being counted.
Right now, Scott is ahead of Senator Bill Nelson by just 15,000 votes.
Here to explain what exactly is going on in Florida, Democratic strategist and Florida elections expert Steve Schale, and Mitchell Burger, a former senior adviser and attorney for the Al Gore campaign during the 2000 Florida recount.
Steve, let me start with you. Where are we right now? There`s a deadline tomorrow, right, for all the counties to report their totals, is that right?
STEVE SCHALE, DEMOCRATIC STRATEGIST: That`s right. So, 62 counties in Florida have reported their totals -- sorry, 60 counties, seven to go. They`ve got until noon tomorrow. At that point the state will certify preliminary results that will not include the overseas and military absentees, which could have another week to come in.
At that point, the secretary of state will order a recount, a machine recount first and that will begin, I think, on Sunday.
HAYES: Well, let me stop you there. There are seven counties -- so it`s not just Broward County that has not yet reported.
SCHALE: Correct. There are seven counties that are still yet to report that are finishing up basically provisionals, four of them actually went for Senator Nelson, three of them went for Governor Scott, they range from northern part of the state all the way down to Broward County, so a few more to go.
HAYES: That is interesting, because they`ve been focusing a lot on Broward County as if that`s the crazy outlier and what the hell are they doing down there.
SCHALE: I mean, that`s right. And, I mean, this morning for example there were 37. And as Mitchell can get into, it is a process here. Most of these counties they get through election day. On the Wednesday, they go through the vote by mail ballots they get on election day. In Broward they got 18,000 that came in the day of the election, which they began counting on Wednesday, and that process has to work itself through. And then provisional ballots.
And again, this process doesn`t work well in the 24 hour news cycle, I understand that, but there is a process. Counties are meeting it, and I think by noon tomorrow we`ll kind of know where things are.
HAYES: Mr. Berger, you are a lawyer for the Democratic Party down there during this. What do you think of the governor`s allegations of criminal activity and fraud, and the president, and everyone saying that the Broward County officials are stealing this election without evidence?
MITCHELL BERGER, FORMER SENIOR ADVISOR AL GORE CAMPAIGN: Well, this is no different -- it`s a Rocky 2, except Rocky 2 is not as good as Rocky 1. I mean, it`s the same theme that occurred in 2000. It is always an attempt to place the process into question as opposed to honoring the vote. And that only occurs because they don`t wish to have people vote or have votes counted.
HAYES: Wait -- but I hear both of you saying like there`s a process and this is like Bush v Gore, but like they won that that time because they did like win the war of the news cycle and they sent a bunch of people in khakis to like riot outside of vote counting offices.
BERGER: Well, if that`s how you wish to run a democracy, then that`s great. Rule of law or rule of force. Rule of law is a much better way to run a constitutional republic than intimidating people and having people be forced into -- they tried to do the same thing today in Broward County as the Brooks Brothers riot. They tried to have people storm the supervisor of elections office.
This is not the way to run the world`s greatest constitutional republic, obviously.
HAYES: Well, so what do you expect happens next, Steve? I mean, there`s going to be reporting tomorrow and then that will be sort of like the pre- final count without overseas and military ballots?
SCHALE: Yeah, correct. So tomorrow will have three statewide elections that will fall into the recount process. What will begin is every ballot will be run through the scanner again. Ballots that have undervotes or overvotes or other sort of issues will be set aside. At the end of that process, we`ll count again and see where we are. Any race at that point is under a quarter of a point, which will probably be both the senate race and our agricultural commissioner race, which is even closer than senate race.
They`ll go back and inspect all those overvotes and undervotes. And as Mitchell knows well, there`s some issues in Broward with the ballot. We`re not sure if it`s a ballot design issue or if the machine is not counting them, like 30,000 votes. And we`ll get a chance to see what those look like and then we`ll have a better idea if the election can change or not.
HAYES: Yeah, Mitchell, there`s this undervote problem. We`ll show the map right now. There`s this very weird anomaly in Broward County in which -- you can see it in red there, 3.7 percent of voters voted for governor and not senate. That doesn`t happen anywhere else in the state. Again, as you can see in that graphic.
What is your sense of what caused that?
BERGER: It seems that the optical scanner didn`t pick up the senate race. So by running the ballots back through the machine, or counting them by hand, we will see what happened in the senate race for those votes.
HAYES: So you think that is a situation of a scanner malfunction. That could be as many as 30,000 votes, right, that`s a lot of votes.
BERGER: Right, I think it`s a scanner -- it`s a ballot design issue coupled with the scanner malfunction, it`s as if you took the SAT test, and the scanner didn`t see the last five questions.
BERGER: That you -- right. So that`s what -- yeah.
HAYES: Let me ask you this, Steve, again, as the full fuselage of right wing fury is brought down on the state of Florida, particularly the Broward County election officials, from the president to Trump TV on down, you`re confident that like that won`t get to anyone and the process will play out and we`ll actually know what the actual votes are?
SCHALE: Well, Chris, as you know I`ve kind of been trying to beat down conspiracy theories on Twitter all day. And it`s frustrating, because all we`re doing here is putting into question the legitimacy of the election. And, listen, I can`t defend the Broward supervisor of elections communication process. They`ve not done a good job of telling folks where things are. And that`s created a space for this.
But the reality is, as you said, there`s a process. We`re in the middle of it. There`s still seven counties that have to finish, including Broward and Palm Beach. We`ll know where we stand at noon tomorrow.
And most importantly, I think this recount is going to give both sides what they need in terms of feeling this -- like this is legitimate. If we don`t go through this process, everybody is going to finish feeling like this thing was rigged. And so we need the recount, frankly, to give folks confidence in our system.
HAYES: All right, Steve Schale, and Mitchell Berger, thank you so much for that.
Coming up, the campaign chair for Stacey Abrams on that campaign`s fight to force a run-off. She joins me next.
HAYES: Three days after the election, we still have no winner in Georgia`s race for governor and a fight is raging over making sure every vote is counted. Republican Brian Kemp currently has 50.3 percent of the vote and he`s declared victory. But Democrat Stacey Abrams campaign says there are enough votes still outstanding to potentially bring that number of Kemp`s vote share under the 50 percent needed to avoid a runoff.
Kemp resigned from his post as secretary of state yesterday following a lawsuit filed by Georgia voters accusing him of using. quote, "the official powers of his office to interfere in the election to benefit himself and his political party and disadvantage his opponents."
Now, Secretary of State Kemp oversaw an electoral system notorious for implementing measures making it harder to vote, including purging more than 1.4 million voters from the roles and putting 53,000 registrations on hold right before the deadline to register for the midterms.
For more how Abrams campaign is fighting to get a runoff election, I`m joined now by Lauren Groh-Wargo. She`s the campaign manager for Stacey Abrams.
Lauren, I guess first where do things stand right now?
LAUREN GROH-WARGO, STACEY ABRAMS CAMPAIGN MANAGER: Well, thank you for having me, Chris.
I want to just start by saying that we premised our entire operation on that every single vote mattered and that the millions of Georgians who are eligible voters who had not been participating that we had a candidate and a cause worth fighting for and worth voting for. And here we are today nearly 4 million Georgians have cast a ballot, and the former secretary of state oversaw his own election. And his last act as secretary of state was using that taxpayer funded position to issue a press release to declare himself the victor.
Today in Georgia, on my way here, Chris, my team briefed me on their efforts this week, my large field campaign, our lawyers, our volunteers have been diligently going into each of the 159 counties in the state of Georgia, working with elections officials and voters to collect stories and data to find out how many ballots are outstanding, to find out how many remain to be counted in this race. And that number is exactly -- I want to give you the exact number that we have found is 30,823. And this is a minimum number of outstanding ballots. That does not include...
HAYES: OK, let me stop you there before you get to that. I just want to understand what`s going on. You`re saying there`s 30,823 outstanding ballots that you have determined through your personal campaign staff going to each county and talking to electoral officials, is there any official tally from the state or from the county`s reporting what the outstanding ballots are?
GROH-WARGO: Currently on the secretary of state`s website it reports that there are approximately 21,000 outstanding provisional ballots. There is no list associated with those numbers. It is just a number broken down by county.
Here`s the reality. Each one of the 159 counties has a hand-written paper list of voters who cast an emergency paper ballot or provisional ballot. So our team, because the secretary of state has refused to make that data public, associated with the 21,000, has been literally going in and taking pictures and making copies of these handwritten lists that were collected in precincts across the state on election day. And they`ve tallied those numbers up, along with data analysis that we have done on outstanding early votes and mail ballots. And our current best guess is that there are at least 30,800 outstanding ballots.
Now, this does not include the military and overseas ballots that in Georgia had to be received by the end of today. That number I gave you does not yet include those numbers and it doesn`t include potentially other hundreds and thousands of provisionals that are stacked up in a corner, or data glitches. I mean, we have seen an unbelievable number of irregularities and problems voting that are directly linked to Brian Kemp`s horrible election administration, with 16-year-old machines that were breaking down throughout early vote, breaking down throughout election day. And that`s why we had over four and a half hour waits on election day, mainly in Democratic precincts.
I just -- I can`t even tell you, Friday night, the last day of early vote, after we had the Obama rally, Stacey and I raced across town to a mall in South De Kalb County, a Democratic part of the state, where voters had been lined up for over three hours. The mall was dark, Chris. It was shutting down. And there was a line of folks woven throughout that mall.
I talked to women who were there with their toddlers, fathers who were there with their teenagers, queued up in this line waiting to cast their ballot because there weren`t enough machines, there wasn`t enough paper.
This is outrageous. It`s outrageous. And Brian Kemp, literally his consultants and the taxpayer funded folks at the secretary of state`s office issue a press release and expect us to take that at face value after he has attempt after attempt after attempt to suppress the vote. So, we are outraged and we`re going to fight for every single vote.
HAYES: All right, well, we will check back in with you as you do that. Lauren Groh-Wargo,thank you for joining me.
GROH-WARGO: Thank you so much, Chris.
HAYES: Coming up, following major losses on election night, the president is acting out in furious desperation.
HAYES: At this very moment, votes are still being counted in the Arizona Senate Race as elections officials process all the mail-in ballots. Right now, Democrat Kyrsten Sinema has a lead of 20,000 votes over Republican Martha McSally. And there`s a growing sense from both parties that Sinema could win the seat, which is currently held by retiring Republicans Jeff Flake, a result Republicans are desperate to stop.
The president today accused Arizona out of nowhere and with no real reason of electoral corruption and also nonsensically floated the idea of an entirely new election, which is not how any of this works, while four local Republican parties headed to court to try to keep some votes from being count and reached a settlement this afternoon, a sort of compromise about how to go forward.
There was at least one Arizona Republican who is definitely not on board with the party`s attempts to squash the vote. Sidney McCain tweeting out, quote, "AZ GOP, I am one of those mail-in ballots. I was under the impression my vote was always counted."
Coming up, from Arizona to Florida, the blue wave in the House, the president`s increasingly erratic and dangerous reaction to losing on Tuesday, that`s next.
HAYES: This week, Donald Trump lost a big national election for the very first time, and he is reacting in a wildly dangerous fashion, launching a systematic assault on every independent source of authority outside of himself, his associates and supporters.
From the doctored video that started on a conspiracy website that White House Press Secretary Sarah Huckabee Sanders tweeted out to attack a reporter, to the baseless accusations against the electoral system to stop people from counting votes, to a blatant attack on the Justice Department, firing Jeff Sessions and putting in his lackey, Matthew Whittaker, Donald Trump right now is acting like a man who is cornered and dangerous.
Let`s bring in senior advisor and national spokesperson for MoveOn Karine Jean-Pierre; and former Republican congressman David Jolly of Florida.
David, let me start with you. There are many weeks in which the president acts in a strange and unhinged fashion, it`s just that the sort of assaults on these basic pillars of kind of liberal democracy this week seem extremely acute. What do you make of it?
DAVID JOLLEY, FORMER CONGRESSMAN (R) FLORIDA: yeah, I think we saw on that first day after the election in that press conference is this a president who is emboldened, who has convinced himself that Tuesday gave him a mandate and he won, or is this a president who is in panic mode? And I think as each day passes, this appears to be a president in panic mode.
From his interaction with Jim Acosta, from his comments at the press conference, to what we saw in the White House lawn today, frankly the firing of Jeff Sessions to what we`re seeing with Matt Whittaker, this is a president, I think, that whether they won or lost on Tuesday this is a barn burner for him now.
And we`re seeing it even as he engages in the election in Florida, I expect he`ll engage in the recount in -- or the election in Arizona. This is a president who is now going to go full throttle, and it will take us time to figure out exactly what his motivation is.
HAYES: Karine, I saw that MoveOn was part of a coalition of groups that had protests yesterday, a lot of protests, widespread and well attended across the country, about the firing of Jeff Sessions and the independence of the judiciary. Why did you press the button? What caused you to break the glass?
KARINE JEAN-PIERRE, MOVEON: He crossed that red line, which was firing Jeff Sessions. And not only, that putting in Matt Whittaker, who is clearly a sycophant, a loyalist, and who has said that he`s not going to recuse himself, which is clearly why he was chosen, but has said that there was no collusion, who doesn`t believe in the Mueller investigation. And that was the red line for us.
One thing, Chris, we`ve been really doing this for a long time, getting ready for this moment. We had more than 400,000 people sign up months ago with over a thousand events all across the country, and we were just waiting, because we knew. We know what Donald Trump is going to do. He is very predictable and unpredictable in the same way, and he crossed that line and we launched it.
And we had about a 1,000 events across the country with well over 100,000 people showing up. And people are speaking their minds. They`re not tired, even though we had this election. They`re ready. And that`s one of the reasons people went out to vote, and we saw this massive blue wave, because people wanted to make sure that we had a check on this administration.
HAYES: David, how dangerous -- I`ve always had two minds about the president`s tweets, right. At one level it`s like this is horrifying, the other is he`s the guy at the bar talking to the television and he just happens to be the president. But to your mind, how dangerous is the undermining of the electoral system that he, and frankly Marco Rubio and others in the Republican Party seem engaged in down in Florida?
JOLLY: Chris, thank you for that question, because it`s very subtle. And here`s why it`s so important that we have this conversation. As Donald Trump and Marco Rubio and Rick Scott allege fraud, understand what`s happening. They are taking legitimate concerns about timeliness, legitimate concerns and questions about competence of supervisors in elections, and they are conflating that with allegations of criminal fraud for which they have absolutely no evidence.
JOLLY: And I would say to Donald Trump and to Rick Scott and Marco Rubio tonight, if you have evidence of fraud, put up or shut up, because what you`re doing right now is undermining what is a fair counting of not a recount, a fair counting of every ballot that has been cast.
And this is the problem, and this is the Trumpian, the Trump element within the Republican Party.
What we saw from Rick Scott last night was disgusting. It was a reflection of how Donald Trump has turned this Republican Party, and I believe has turned Marco Rubio and Rick Scott at the same time.
HAYES: What is your theory, Karine, about how to provide restraint on the president`s actions in anti-democratic fashion at this very perilous moment?
JEAN-PIERRE: I think we need to -- I think the beauty about what happened on Tuesday is that it changed the wind that we had on winning back the House and other wins as well across the country is that now we have a check on this administration.
And also, it will change the trajectory of this -- of Trump`s presidency. And that`s what`s important, and we just have to continue to push congress and continue to let them know that we have their back and that they need to be an oversight on this president.
And also, they need to just do their constitutional duty. And there is so much more fight to be had. Two months is like six years away. And so we have to continue to push and be out there and continue to fight.
HAYES: Yeah, that gap between the election and the actual vesting of power is a perilous one that we`re in right now, and that`s got a lot of people concerned what happens in that gap, particularly the president acting the way he is.
Karine Jean-Pierre and David Jolly, thank you both.
JOLLY: Thanks, Chris.
HAYES: Before we go, some exciting news. All right, next weekend we will be recording our first ever live episode of our podcast "Why is This Happening?" with my special guest Ta-Nehisi Coates. It`s happening next Sunday, November 18 in Brooklyn. Tickets are on sell now. They include a copy of Ta-Nehisi`s book "We Were Eight Years in Power" and you can find all the details on our Facebook page. That`s Facebook.com/AllInWithChris. We`re hoping this is the first of many. So, you know, stick around.
That is ALL IN for this evening. "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel.
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