Cindy Hyde-Smith offers non-apology. TRANSCRIPT: 11/21/18, All In W/ Chris Hayes

Guests: Chris Hayes, Nick Akerman, Steve Kornacki

STEVE KORNACKI, MSNBC HOST:  That is all for HARDBALL now.  Happy Thanksgiving.  "ALL IN" with Chris Hayes starts right now.

(BEGIN VIDEO CLIP)

CHRIS HAYES, MSNBC HOST:  Tonight on ALL IN. 

MATT WHITAKER, ACTING ATTORNEY GENERAL, UNITED STATES:  I want to shake everybody`s hands.  Is that all right?

HAYES:  New questions about the President`s pick to oversee the Mueller probe.

WHITAKER:  The stakes have never been higher.

HAYES:  Tonight, a deep dive into the sketchy past of Matt Whitaker.

UNIDENTIFIED FEMALE:  Can you answer a question if you`ve ever had a discussion with the President about investigating Hillary Clinton or James Comey?

HAYES:  Then, why the Chief Justice of the Supreme Court issued a rare rebuke of the President.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  You people know better than anybody what`s happening.  It`s a disgrace. 

HAYES:  Plus, is the President shrugging off a Saudi murder because he thinks it will keep oil prices low?

TRUMP:  If we broke with them, I think your oil prices would go through the roof.

HAYES:  And with six days until the runoff, why Democrats think they have a shot in Mississippi.

SEN. CINDY HYDE-SMITH (R), MISSISSIPPI:  For anyone that was offended for my -- by my comments, I certainly apologize.

HAYES:  When ALL IN starts right now.

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HAYES:  Good evening from New York I`m Chris Hayes.  Every day we learn more about the man personally installed by President Trump two weeks ago on constitutionally dubious grounds to run the Justice Department.  And every day the details that we are learning about Matthew Whitaker are more troubling, indeed more obviously disqualifying. 

Here`s the latest.  After two weeks in which the Justice Department refused to hand over Whitaker`s standard ethics financial disclosure, it was finally released late yesterday.  And it appears it has been revised at least five times.  One can only imagine what exactly was going on with those documents during those two weeks. 

And it`s not a crazy question given what we`ve also learned about a strange financial chapter in Whitaker`s career when he headed up a dark money nonprofit group that reported Whitaker as the sole employee where he made $400,000 a year over three years.  The salary came from a group called Fact whose donor or donors we do not know, are shrouded in secrecy.  And while Fact claimed to be a new nonpartisan watchdog, nonprofit, you can get an idea from Whitaker`s T.V. appearances in his capacity as its leader what it was up to.

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WHITAKER:  Let`s all be honest here.  You know, sort of she had a server that she controlled, they reviewed all the e-mails now, I heard over the weekend, so what we`d really like to see is all of the e-mails.

We`ve got a pending FOIA request with the State Department regarding his e- mails and his interactions with the Clinton Foundation.

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HAYES:  It sure looks like a nonprofit created to launder right-wing attacks through the name of a putatively independent new org.  Now, this comes on top of the fact that his other recent activities included being a paid advisory board member of a patent company which allegedly scammed $26 million from its customers and is now being criminally investigated by the FBI.  Of course, house in the same Justice Department he now oversees. 

Whitaker served on the board of World Patent Marketing where he was responsible for conducting cheesy pitches for new hot tub designs and apparently scaring off would-be whistleblowers who were hip to what the company was doing.  The Federal Trade Commission uncovered e-mails in which Whitaker personally threatened and tried to silence customers who said they were defrauded.  And a profanity-laced phone call he made to site entitled our appropriately enough Ripoff Report.

The closer you look, the thinner his resume gets.  When President George W Bush appointed Whitaker as a U.S. Attorney in Iowa which is a big deal job, his questionnaire boasted a personal injury claim he had handled and he had never been a prosecutor.  He got the appointment through political connections in Iowa and then once in that position, his biggest high- profile prosecution was of a Democratic politician.  At a time when we know but the Bush Justice Department was being politically manipulated by the White House to put pressure on U.S. attorneys to pursue George Bush and Carl Rove`s political agenda, political manipulation that turned into a seismic scandal and ultimately led to the resignation of then-Attorney General Alberto Gonzales. 

Not to mention that while he was there, Whitaker was ranked as one of the worst U.S. Attorneys in the country for imposing unusually long drug sentences.  And that individual Matt Whitaker with that resume and that record is now the firewall between the rule of law in America and a President who is on the record repeatedly attempting to manipulate the tools of the Department of Justice to prosecute his political enemies, to throw them in jail, to lock them up if need be.

Whitaker addressed an FBI joint operation center in New York today but was not interested in answering questions about all of this.

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UNIDENTIFIED FEMALE:  Can you answer a question that you`ve ever had a discussion with the President about investigating Hillary Clinton or James Comey?

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HAYES:  Let`s bring in two people who have been scrutinizing Matt Whitaker`s past, Marcy Wheeler Reporter for Emptywheel and Fordham Law School Professor Jed Sugerman who`s latest Washington Post opinion piece is titled Think Matt Whittaker is a Hack, He`s One of Many.  Jed, let me start with you.  What do you make of this record?

JED SUGERMAN, PROFESSOR, FORDHAM LAW SCHOOL:  Well, it strikes me that this is someone who clearly was chosen because of that record and not despite it.  He was chosen because of his willingness to say on T.V. that the Mueller investigation is a witch-hunt and there`s no -- it`s implausible that Trump didn`t know about that when he chose him.  So I think that raises the question, it raises many legal questions. 

But the question it raises for me is that whether this is a constitutionally acceptable appointment.  And I think that raises both the text of the Constitution but also a larger question in the Constitution, what is it for the President to faithfully execute his office or to make sure that the laws are faithfully executed.  This seems to be quintessentially faithless execution of the President`s office.

HAYES:  Marcy, he does seem significant to me that he gets his sort of big infra mater, his big kind of credentialing card punished as a Bush U.S. Attorney during the time that we know that there was a lot of political manipulation of the U.S. Attorneys.

MARCY WHEELER, REPORTER, EMPTYWHEEL:  Right.  I mean, he was sort of an early adopter for that kind of political attack.  And as soon as he was named, people in Iowa were like, yes, he tried to take out the Democratic opposition by going after this openly gay lawmaker and trumping up this case and trying to get him to inform on fellow Democrats.  And when it finally went to trial, it took 25 minutes for the jury to decide that it was bogus case.  So it was -- it was a bogus case but even after that Whitaker was like yes, I still you know -- I`m OK with what I just did which was a clear politicization over the prosecutorial process.

HAYES:  Yes, that`s a good point.  That was -- that was an acquittal, the most high-profile case.  What do you think, Marcy, also of the -- I mean, there is also just a very obvious conflict here which is the -- both the FBI investigation but this question of who exactly was funding this bizarre shell organization he was running.

WHEELER:  Right.  So this organization -- and the other thing that happened is he first started making $60,000 a year there.  By the end he was making like $600,000.  So he gets hired, he`s doing kind of podunk stuff, he starts going after Hilary and he gets a huge raise.  He starts advising Trump via CNN appearances, how to deep-six the Mueller Inquiry and he gets another big raise.

And you`re right.  We have no idea who was paying him.  It was laundered through a bunch of dark money.  And the name kept changing too so it`s this kind of quintessential suspicious group.  And so we don`t know what kind of conflict or who exactly was paying for him to you know -- and he was supposed to be nonpartisan. 

HAYES:  Right.

WHEELER:  But he kept going on T.V. and only attacking Hillary and only attacking Mueller`s inquiry.

HAYES:  Jed, you talked about the Constitution, the sort of dodgy constitutional ground he`s on.  It strikes me there`s a connection between the lack of advice and consent and what we`re learning about his record now.

SUGERMAN:  Right.  And let`s take a look at that constitutional question here.  First, it`s uncontroverted that a principal officer has to be confirmed by the Senate.  And so there`s at least a question about what the line is between a principal officer and an inferior officer in certain cases and inferior officer doesn`t have to get Senate confirmation and that`s what the OLC basically said.  Maybe he`s not a principal officer, maybe he`s not an officer at all, maybe he`s inferior.  The Constitution tells us that that`s not true.  The Constitution treats the heads of departments as principal officers in a couple of different places. 

So if that`s true, then what is Whitaker right now?  Whitaker is the head of a department.  And as head of a department, the Article Two of the Constitution tells us he`s a principal officer, and as a principal officer, he must have Senate confirmation.  So the fact is that Clarence Thomas, Justice Clarence Thomas had an opinion where he said that the larger point here is to avoid presidential favoritism and abuse of power. 

That`s what -- that`s what Alexander Hamilton said in Federalist Number 76.  The Originalist, Conservative Originalist say that this appointment is unconstitutional, John (INAUDIBLE) as well.  So you`ve got the whole spectrum from left and right originalists and textual saying this is just not acceptable.

HAYES:  And Marcy, it strikes me that I don`t think he could be confirmed.  Now, you can`t -- he couldn`t be nominated now because he`s working as Acting, but given his resume and his record, like I don`t think this is someone who could be confirmed to Attorney General United States even with a very pliant Senate.

WHEELER:  Well, yes.  I`m never going to put anything by a Mitch McConnell Senate.  But right, I mean, the whole point of confirmation is to say are you qualified, good questions about that, do you have conflicts, really big questions about that.  Do you have legal problems, I mean you mentioned the FTC investigation into the company that used to be on.  The board of Senator Whitehouse today raised some questions about whether he was in violation of the Hatch Act earlier this year because he was still getting political donations for 2014 political campaign he ran in Iowa four years after the fact.  So he got four donations this year while he`s been working as the chief of staff for Jeff Sessions.

So there`s lots of legal questions of whether you know, he`s under active investigation by the FBI.  It`s kind of hard for him to be Attorney General.  One would hope that the Senate would not confirm somebody like this but you`re not hearing anything from the -- especially the Republicans in the Senate about his disqualifications for being Attorney General and in fact Chuck Grassley who remains the Chair of the Judiciary Committee has really close ties with him from Iowa so he`s not going to say anything about Whitaker because you know, he`s one of his Iowans.

HAYES:  Marcy Wheeler and Jed Sugerman, thank you both for making time tonight.  Happy Thanksgiving.  Joining me now Senator Jeff Merkley of Oregon.  Senator, you just heard what we`re discussing about Chuck Grassley not making any moves here.  Should the Senate be doing something about this situation in the lame-duck session?

SEN. JEFF MERKLEY (D), OREGON:  Well, they absolutely should.  I mean, listen.  This is an individual who is being investigated.  His company -- his former company is being investigated for a predatory scam on which he was the enforcer.  And we`ve heard how he abused his office in Iowa.  We`ve now heard about the campaign donations which would enable him to be able to repay a loan to himself.  I mean, at every aspect this man is unfit.  And that is what Hamilton was talking about.  He said, we need this confirmation process to avoid the appointment of cronies of unfit character and yet that`s what we have right now, unfit character.

HAYES:  What -- is there any forcing mechanism, any leverage that Democrats on minority wield in this Senate between now and the new Congress?

MERKLEY:  Well, if we have partisanship and then we`re -- it`s going to be difficult, but if we have bipartisanship on this issue, then leverage can be exerted.  Otherwise, it`s an issue for the courts to take up and say is this a violation of the Constitution.  And I certainly hope that that can be -- that can happen very quickly.  We`re asking the courts to do so.  But really the Republicans sometimes say to me.  Jeff, I agree with you completely.  This is inappropriate by the President.  I say, will you join us in a public display or a conversation or letter?  They`ll say well, we`ll quietly call the president.

And well, I hope they not so quietly call the President and say that this is just an outrage for the Department of Justice.  And of course, we know this is also part of the whole effort to keep the Mueller investigation.  Remember, delivering its report to Congress and that is an obstruction of justice.  We so for about every level, we need to we need to act.

HAYES:  Let me -- the last point you said, stopping the Mueller investigation for every -- delivering its report to Congress.  Do you -- do you mean something specific there or just a general attempt to shut it down?

MERKLEY:  Well, the Mueller investigation as I understand it cannot be delivered without the superiors in the department allowing it to be presented to Congress.  And so, that`s the troubling point we are at right now is we may never get our hands on all of the work that has been done by the special investigator.

HAYES:  Oh I see.  So you think that Whitaker might be there not to shut it down but essentially just to bottle up the final report?

MERKLEY:  Well, all of the above.  Because even if he shuts it down now, there`s a lot of material there the President doesn`t ever want Congress to see. 

HAYES:  Aren`t there ways that you guys can get that though?  I mean, it just seems impossible good God, in this day and age, is something like that would stay a secret. 

MERKLEY:  It absolutely seems incredible that that could be the case but that is a very significant substantial concern is that with Whitaker there we will not be able to get our hands on the report.

HAYES:  You are not a party in that -- you mentioned the lawsuit, there`s three legal actions, I think there may now be four and the Justice Department responded to one of them today about the sort of dodgy constitutional footing upon which Whitaker is currently standing.  But you mentioned before.  You support the lawsuit from Senators Blumenthal, Whitehouse, and Hirono against Whitaker?

MERKLEY:  Absolutely.  And do you think that whatever happens, there`s going to be some kind of reckoning because you know, they`ve got the next 40 days or whatever, but eventually Whittaker is going to have to testify before someone in Congress I imagine, with the Democrats having taken the House. 

MERKLEY:  No, that`s right.  And I certainly believe that they`ll move quickly in the House to bring him to testify.  And they`ll ask him a lot of difficult questions.  Questions that probably the President would be best off replacing him before he has to come in and talk to Congress.

HAYES:  All right, Senator Jeff Merkley, thank you for making some time tonight.  Have a great Thanksgiving.  I really appreciate it.

MERKLEY:  You bet, Chris.  Good Thanksgiving.

HAYES:  MSNBC Legal Analyst Nick Akerman, former Assistant Special Watergate Prosecutor, he joins me now.  It remains a scandal every day the guy is the acting Attorney General of the United States.  There`s no stop.

NICK AKERMAN, MSNBC LEGAL ANALYST:  There`s no question about it.  I mean, he was put in there by Trump for one reason and only.  There are three things that Trump is worried about.  He doesn`t want the Mueller investigation going forward, he wants to prosecute Jim Comey, and he wants to prosecute Hillary Clinton.  Well, his in-house counsel, his coast counsel, the White House counsel kept him from doing those things.  So --

HAYES:  Right.  And Jeff session stopped him from doing the others.

AKERMAN:  Right.  And what does he do?  He gets around it by pointing this guy who`s willing to do all three of those things for Trump.  I mean he is nothing but a political hack.  He has absolutely no legal foundation or underpinning.  I mean, he`s a guy who thinks that Marbury Madison which held that the Supreme Court has the final say on the constitutionality of an act of Congress, he thinks that`s all wrong.  However, he also claims that the Supreme Court should have overruled ObamaCare.

HAYES:  Right. 

AKERMAN:  So the guy is -- he`s talking out of both sides of his mouth and like Donald Trump he`s a fraud stirrer.  He`s involved in sort of the Trump University of his own making which is this patent marketing group.

HAYES:  You know, you had experience -- I mean the you know, Nixon went through a number of attorneys general and they were political hacks fundamentally and that was sort of the problem, right?  I mean, that was a key part of what -- the problem of Nixon was what his Justice Department was willing to do for him.

AKERMAN:  Well, he had two attorney generals that were felons.  They he wound up being convicted of felonies.  But I must say, during their confirmation, if you took the resume, I mean it was stellar compared to this guy. 

HAYES:  Right.

AKERMAN:  It wasn`t even close. 

HAYES:  So it was not as obviously as sort of installing a crony as this -- as Whitaker.

AKERMAN:  No.  I mean, John Mitchell who was the Attorney General, the first one was clearly a crony, was the campaign manager.  I mean, that was outrageous in itself.  But you know, he had a reputation as a good bond lawyer, he was a partner in a major firm in New York, he knew what the law is even though he knew how to violate it.  This guy doesn`t know what the law is, he doesn`t know what he`s doing, he just doesn`t have the resume to be Attorney General.

HAYES:  I just kind of wonder how long he can stay.

AKERMAN:  Oh I think it just keeps building up every day.  I mean, really think --

HAYES:  Yes, like you saw -- you saw that look on his face that sort of sheepishly goes to New York today.  He addresses you know, some of the folks in SDNY, he gets a tour of a customs facility if I`m not mistaken.  1He gets one reporter talking to him and he sort of sheepishly looks away.  Like a certain point, he`s going to have to talk --

AKERMAN:  Well he did.  He made up a story today.  He made up a story about this individual that was convicted in the bombing in New York and New Jersey having two co-conspirators that were supposed to be flying in from Europe which was a complete phony baloney.

HAYES:  Yes, he said that in the-- he said that his prepared remarks today, didn`t he?

AKERMAN:  That`s right.

HAYES:  And he`s wrong about that.  There we`re not co- conspirators.

AKERMAN:  It`s a typical Donald Trump.  What you don`t know, make it up.

HAYES:  Right.  I just -- I wonder -- I mean right now, the balances, it`s sort of a nice edge which is Grassley has his back and you also wonder how much the Iowa connection is part of this.  Grassley has his back, the coverage of the guy is brutal because every day they find something new, and at a certain point like there is going to -- there is a date certain where he`s going to have to go under oath before Congress.  And he`s not going to get out of it.

AKERMAN:  He`s going to have to pay the piper at some point and this is going to keep building.  I mean, I think there`s even more here.  I mean, the idea of these getting campaign contributions for a prior Senate campaign when he`s working for the Attorney General of the United States.

HAYES:  Or I think I just saw someone from open secrets who suspect they have found the donations that were funding this bizarre nonprofit that might have been just a single donor which again would be interesting to know.  The other thing today is that the President finally -- you know, he put in his -- he put in his answers to Mueller.  There`s a long sort of background piece in the A.P.  They`re kind of like, well, we`re done with that.  What do you think the next move is?

AKERMAN:  Oh, I think the next move is going to be indictment.  What he`s got is --

HAYES:  You don`t think he`s going to come back and try to go back and forth or --

AKERMAN:  No, I don`t think so.  I think what you`ve got is what -- the real backstory is there are four cooperating witnesses.  There`s the President`s campaign manager, there`s his vice chairman who`s pled guilty, there`s his national security director, and his personal lawyer.  All of these people are singing and of course.  I mean, every one of them is talking about Donald Trump`s role and what they know about it.  In Watergate, we never had cooperating witnesses who came close to what these people know.

HAYES:  That`s a great point.  Although you didn`t have the tapes.  That was key.  Nick Akerman, thank you very much.

AKERMAN:  Thank you.

HAYES:  Coming up, did the President make some kind of deal with Saudi Arabia to turn a blind eye to the murder of a Washington Post columnist in exchanged for cheap oil?  Oil trader Dan Dicker is here to explain why he thinks there might be a deal, next. 

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TRUMP:  Saudi Arabia is probably the second biggest oil producer.  They`ve worked with us very well.  We`ve kept oil prices down.  If you want to see what prices go to $150.00 a barrel, like by the way Russia would love to see that, all you have to do is break up our relationship with Saudi Arabia. 

(END VIDEO CLIP)

HAYES:  The President has been very clear why he`s OK with Saudi officials killing and reportedly dismembering the U.S. resident and Washington Post columnist last month.  And it is because at least in part he believes that Saudi Arabia can supply the United States with cheap oil, something he continued to brag about today tweeting "oil prices getting lower.  Great!  Like a big tax cut for America and the world.  Enjoy!  $54.00, was just $82.00.  Thank you, Saudi Arabia, but let`s go lower." 

Trump`s unabashedly willingness to link his steadfast support of Saudi Arabia despite their brutal murder of Jamal Khashoggi not to mention the weeks and weeks lying about it, and his love of cheap oil reasonable questions most especially is there some kind of explicit deal here?  Here with me now oil trader Dan Dicker, author of Shale Boom Shale Bust: The Myth of Saudi America.  Dan e-mailed me yesterday to help hypothesize that yes, there was some kind of deal between the Trump administration and the Saudis over oil prices and Khashoggi`s murder.  What was your contention?

DAN DICKER, OIL TRADER:  Well, let`s do a little reconnaissance, Chris, a little bit of history.  The Saudis and OPEC are dealing with a very low price of oil and they need a high price of oil.  Their economy is almost 100 percent based upon oil revenues.  Russia as well, 150 percent of their revenues based on oil.  So they`re dealing with beds piece of oil action where oil was trading in the $30 range.  This is going back to 2016.  At this point, MBS has his consolidating power, has a new plan.  He`s going to control supply.  He puts together a consortium not only of OPEC members but of Russia too to control production.  Really cut it back very, very stiffly.

Now, remember, the cartel does not have a good record of keeping these things together.

HAYES:  Right.  Part of the reason that he has to make the new consortium is because there`s so much cheating in OPEC they have a hard time keeping it together.

DICKER:  That`s all they do.  And most of the traders expect that`s what they`ll do this time.  But instead of that, MBS has the ability to hold this consorting together for two years with compliance not of 100 percent but 110 percent, 115 percent where the Saudis are actually throwing in more of a production cut to make sure that they soak up the extra surplus that was in the market and we`re watching oil prices rise.  And as we`re watching while prices rise all these two years, Trump is getting madder, and madder, and madder.  He`s tweeting at the Saudis we won`t allow this to happen, this manipulation on the oil market.  He`s getting more and more mad as oil prices are going on.

Fast forward, Khashoggi is murdered.  A week later, Pompeo, the Secretary of State goes to Riyadh to talk supposedly about what went down in Turkey.  Comes out of the meeting and they -- what did you talk about, and oh, we didn`t even mention Khashoggi in this meeting. 

HAYES:  Yes.

DICKER:  Really?  OK, fine.  Three days later, Al-Falih who is the Saudi oil minister comes out with a statement.  We`re not only going to increase production, the Saudis, but we`re selling to the rest of OPEC that you can open your spigots as wide as you want right now.  And we`re all sending this thing.  What this goes against the entire strategy that the Saudis have been so painstaking to put together for the last two years, and what they really need going forward for the next two years because they have even bigger plans with a with a modernization of their state oil, Saudi Arabia -- I mean they have big plans they don`t need just $80.00 oil, they need $100.00 oil, $110.00 oil. 

But for this moment they`re saying we`re done with this proposal.  Everybody, all the traders, all the hedge funds start to flee.  And in two and a half weeks --

HAYES:  Based on the statement.  So the top Saudi oil official says this thing, the oil markets start to -- we`ve seen them go down like the President tweet about, they`ve gone down $25.00 or whatever in --

DICKER:  But we`ve never seen them go down like this without something else going wrong.  Like in 2008, a major credit crunch, the equity markets are getting pummeled, you know, the dollar is going up or any -- something, something else has to be going on, some other commodity is getting killed, but no, just oil straight down $25.00 without a stop for two and a half weeks. 

HAYES:  And that`s not because -- I mean, we also seen at the same time we seen the markets go down, the markets appear to be pricing in signals they think it`s late cycle.  We`re headed towards a recession.  You don`t think that`s what`s driving the oil.

DICKER:  It`s helped.  I mean, there were -- there were a lot of --

HAYES:  There`s a lot of bear market indicator --

DICKER:  There are some bear market indicators but they were kind of always there.  And what they`re really were was most people in the financial communities who believe that the Saudis were continued with their plan of supporting the oil market going into 2019.  And when they bailed on that, everybody just came in like an avalanche of selling --

HAYES:  So you e-mailed me yesterday which I thought oh, I guess it`s plausible.  I don`t know.  Is this like a conspiracy theory, is it what -- I said, do you have evidence.  You said, no.  It`s just this is the way that the technology lines on.

DICKER:  And it would all see circumstantial except that of the last few days where Trump is all of a sudden --

HAYES:  Bragging about it.

DICKER:  -- really pleased -- really pleased with the way the Saudis are helping us and also quoting on the White House lawn that they are working with us on oil prices.  Really?  The President is now working with the Saudis on oil prices?  How did that turn around so quickly?  This would have wall seemed circumstantial or at least you could have put it off as circumstantial if not for the fact that Trump is, in fact, admitting openly that he did, in fact, have a deal they are working together with the Saudis in terms of getting oil prices lower. 

HAYES:  And he`s basically bragging about today, another tweet about how there`s so much traffic because everyone says the oil prices are so low like it seems like a totally plausible --

DICKER:  He can`t help but take credit for it.  He cannot help it.

HAYES:  A plausible account of the facts before us.  Dan Dicker, that was great.  Thank you very much. 

DICKER:  Thanks, Chris. 

HAYES:  The President picks a fight with the justice system and the Chief Justice Supreme Court fights back.  That`s next.

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HAYES:  Today brought a rare public rebuke of the president from the Chief Justice of the Supreme Court John Roberts.  Roberts was responding to a comment the president made yesterday after Judge Tigar of the ninth circuit put a temporary hold on a Trump administration plan to refuse asylum applications to people who cross the border outside ports of entry, ruling that Trump cannot unilaterally rewrite the immigration laws.

(BEGIN VIDEO CLIP)

TRUMP:  Well, you go to the ninth circuit and it`s a disgrace.  And I`m going to put in a major  complaint, because you cannot win if you are us a case in the ninth circuit.  This was an Obama judge.  And I`ll tell you what, it`s not going to happen like this anymore.

(END VIDEO CLIP)

HAYES:  Chief Justice Roberts took issue with Trump`s suggestion that the judge was biased because he was appointed by Barack Obama.  Roberts telling the AP "we do not have Obama judges or Trump judges, Bush judges or Clinton judges, what we have is an extraordinary group of dedicated judges doing their level best."  That was pretty remarkable.  That`s not normally the kind of thing that a Supreme Court justice does.

And a president, of course, naturally attacked back. 

Now, in a sense, Roberts is absolutely right, that the reason the Trump administration keeps losing in court over and over in humiliating fashion is not because political animus, it`s because the administration keeps trying to do flagrantly lawless things that judges across the ideological spectrum have no tolerance for.

But if there were really no such thing as Trump judges then ask yourself this, why on earth is Mitch McConnell so intent on filling the judiciary with as many of them as possible?

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HAYES:  There is only one senate race left in the nation, I promise.  It`s the runoff election in Mississippi set for next Tuesday between the incumbent appointed Republican Senator Cindy Hyde-Smith and the challenger, former Democratic congressman and secretary of agriculture Mike Espy.

Now, this was supposed to be a pretty easy race for Hyde-Smith, a Republican running in a deep south state that Trump won by 18 points, but then Hyde-Smith started running into some trouble of her own making.  She was caught on camera saying it`s a great idea to make it harder for liberal folks to vote.  She was found to have posed in a confederate soldier`s hat holding a gun.  And she made this really unbelievable comment in a state where more than 600 black people were killed in lynchings, more than in any other state.

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SEN. CINDY HYDE-SMITH, (R) MISSISSIPPI:  If he invited me to a public hanging I`d be on the front row.

(END VIDEO CLIP)

HAYES:  Vouching for her friend there saying if he invited me to a public hanging, I`d be on the  front row.

That comment crossed the line for a number of companies, including Walmart, which asked for its campaign donations back. 

And so now to the bizarre scene that took place last night in the one and only debate between the senate candidates.  This was no ordinary debate.  The Jackson Free Press reported that Hyde-Smith demanded no audience and no press be present, that the debate be organized by the Mississippi Farm Bureau Federation whose top board members have all donated to Hyde-Smith.

But the craziest details involved the note pads the candidates were supposed to use to take notes during the debate.  Hyde-Smith`s campaign demanded access to their note pad an hour early and they appeared to have use it as a cheat sheet, just like fill it up with notes for her look at.

Check out these huge pile of notes in front of Hyde-Smith versus the one small stack in front of Espy.  Hyde-Smith repeatedly looked down at her notes throughout the debate, though at times it didn`t really seem to help too much.

(BEGIN VIDEO CLIP)

HYDE-SMITH:  Tonight you have heard two clearly different, opposite, differences between me and my opponent.

(END VIDEO CLIP)

HAYES:  She also relied on her notes in making a stilted non-apology for the public hanging comment.

(BEGIN VIDEO CLIP)

HYDE-SMITH:  You know, for anyone that was offended for my -- by my comments, I certainly apologize.  There was no ill will, no intent whatsoever in my statements.

(END VIDEO CLIP)

HAYES:  Mike Espy, the Democrat, an African-American, said the damage had been done.

(BEGIN VIDEO CLIP)

MIKE ESPY, SENATORIAL CANDIDATE, (D), MISSISSIPPI:  I don`t know what`s in your heart, but we all know what came out of your mouth and it went viral, you know, within the first three minutes around the world.  And so it`s caused our state harm. It`s given our state another black eye that we don`t need.  It`s just rejuvenated the old stereotypes that we don`t need anymore.

(END VIDEO CLIP)

HAYES:  Joining me now, Jackson Free Press reporter, Ashton Pittman, one of the two reporters who broke the story of Hyde-Smith`s debate demands.  Also with me, the president and CEO of the NAACP Derrick Johnson who previously led the NAACP Mississippi State Conference.

Let me start with you, Ashton.  What -- give me some background on how this debate came about and how the Hyde-Smith people negotiated for it.

ASHTON PITTMAN, JACKSON FREE PRESS:  So for months, both Mike Espy and Chris McDaniel who was a Republican opponent before the November 6th general, had been asking her for a debate.  She repeatedly refused.  First, she said that she didn`t want a debate because -- or she couldn`t debate because of her senate schedule.  But then when the senate went on recess she said, well, actually  she didn`t want a debate because she thought McDaniel`s supporters might come and be rude and boo her if it had a live audience.

So the day after -- the day after the November 6th election, she apparently spoke with Farm Bureau and by Thursday morning she had put out a press release saying she had agreed to this debate.  And when I called the Mike Espy campaign that morning after the press release, they had not even seen the rules of the debate or seen the terms.  So, they hadn`t accepted it, but she accepted it immediately.

So, I`m assuming, you know, she must have already talked to them about what those terms would be, but the Espy campaign did not even know the terms at the time she accepted.

HAYES:  Derrick, talk a little bit about how you`re viewing this as someone who did civil rights work in that state, an African-American candidate and Hyde-Smith in this race which should be a walk for her given the kind of conservative voting habits of that state.

DERRICK JOHNSON, PRESIDENT, NAACP:  Well, her actions, her statement is consistent with the racialized political nature of Mississippi.  If you use race, religion or region, you can get voters to  vote against their interests.  Of the statements she made, her posing for pictures with Confederate artifacts on, the nature by which she had the conversation dealing with voter suppression is a true indicator of her character, but not unusual for Mississippi.

Unfortunately, race is a tool that`s oftentimes weaponized to turn out a very conservative base.

HAYES:  Yeah, let me follow up on that.  I think there`s a lot of people watching this saying is this hurting her?  There`s an internal poll that got leaked that had her at  points.  Do you think that the kind of campaign she`s run do you think the kind of campaign she`s run and the missteps she`s had, the things she`s said, do those hurt her politically in Mississippi based on your experience?

JOHNSON:  Well, nationally it may hurt her, but the voters she`s catering to, it may be more appealing, it may be energizing.

The third candidate in this race is Chris McDaniel.  He`s a Tea Partier.  Many of the individuals that would support him, they support this type of politics.  And as a result of that, this is a way to appeal to that base, to get them to move over to support her candidacy, which could be enough to put her over the top.

HAYES:  Ashton, as I was watching the senator last night, and sort of the first extended bit I`ve seen of her really, I thought to myself like this is a United States Senator, how exactly did she end up here?  Like what is the backstory of how she ended up being a U.S. Senator?

PITTMAN:  Well, first of all I will say I have talked to McDaniel supporters who actually after those videos were actually even more upset who said originally they were going to vote for her after November 6th, but then they decided they couldn`t do it after those videos came out. 

So, there are some who were actually turned away because of that.

HAYES:  That`s interesting.

PITTMAN:  As far as how she came to this, when Senator Cochran stepped down, Governor Brian appointed her.  She had served as the commissioner of agriculture and commerce for the state.  And Governor Brian appointed her.

And, you know, a lot of people are upset by that.  They felt like she was kind of forced upon them, and there are still a lot of people in the Republican Party who feel that way and feel like this was the establishment choosing for them.  Some people consider it Mitch McConnell`s doing.  So, there`s a lot of anger about that.

HAYES:  That`s interesting, Derrick, because I mean -- look a Democrat winning a race in Mississippi is a long shot, a black man frankly being elected U.S. Senate from Mississippi has not happened since Reconstruction.  But there does seem like there is a little bit of a political opening here.  What do you make of it?

JOHNSON:  Well, it`s not such a long shot in Mississippi.  Mississippi has the highest percentage per capita of African-Americans than any other state.  We had a Democratic body state elected field up until 2003.  In fact, Cindy Hyde-Smith was a Democrat.  She switched parties when she was a state senator.  She ran for state ag as a Republican, and she was appointed to this position.

But it`s not a long shot for an African-American to win statewide.  It`s not a long shot for Democrats to win statewide.  It is truly an investment in the state`s infrastructure.  But there are many more people who are seeking a much more progressive outlook on how governance should take place. 

The state of Mississippi refuses to accept Affordable Care Act funds, and it`s caused major  problems across the state in terms of closing of rural hospitals.  And you have a lot of people who are now more angry about what`s taking place because there have been so many promises broken.

HAYES:  Ashton Pittman, down there in Mississippi, and Derrick Johnson, thank you both for being with me.

PITTMAN:  Thank you.

JOHNSON:  Thank you.

HAYES:  Coming up, the election still isn`t over and Democrats are getting closer to a 40 seat sweep in the House.  The latest on all the winning ahead.

(COMMERCIAL BREAK)

HAYES:  The reviews are in for our latest episode of Why is This Happening? featuring the one and only Rachel Maddow -- tacticalpantsone (ph), just said that on TV says "very well done, Chris Hayes.  Rachel Maddow podcast playing above the rim."  Piecederesister (ph) says "she just saw Maddow as the guest on #withpod.  I know it`s not Thanksgiving yet, but if feels like Christmas."

And Lauren -- that`s an easy handle -- says she has Bagman and withpod queued for a drive from the Bay Area to L.A. and she`s actually looking forward to the drive."

We are so, so thankful to all of you who are listening to withpod and join the podcast.  And for those of you who have yet to get on board, head to iTunes, who wherever you get your podcast, and do some sweet calorie free binging this Thanksgiving weekend.

(COMMERCIAL BREAK)

HAYES:  It`s been 15 days since election day and Democrats are still winning seats.  The latest flip looks like it will be in Utah where the Associated Press says Democrat Ben McAdams has beaten Republican incumbent Mia Love in  that state`s fourth congressional district.  NBC News, I should note, has yet to call the race.

But if the result remains, Democrats will gain 39 House seats.  And, get this, they have a shot of picking up one more.  Although, NBC and many others have already called California`s 21st congressional district for Republican David Valadeo, late counted ballots now show that Democrat TJ Cox is within 500 votes.

Dave Wasserman of the Cook Political Report summing the race up this way, "Valadeo isn`t just in jeopardy, he`s probably the underdog."

If that seat flips, Democrats are looking at a 40-seat pickup.  And they have already won the popular vote in the House by nearly 9 million votes, the largest margin since Watergate.

To talk about this huge, Democratic victory, particularly in the highest midterm election turnout in 100 years, I`m joined by former congresswoman Donna Edwards, Democrat from Maryland, and Congressman Ryan Costello, Republican from Pennsylvania who did not seek reelection this month.

Congressman Costello, I want to play you a clip from Newt Gingrich in 1994 of what a mandate means after the Republicans won the House and a popular vote, slightly smaller than the Democrats this time.  Take a listen.

(BEGIN VIDEO CLIP)

NEWT GINGRICH, FORMER SPEAKER OF THE HOUSE:  As a historian, every time you`ve had an election that clear cut, the word that has been used to describe it is a mandate.  And if this is not a mandate to move in a particular direction, I would like somebody to explain to me what a mandate would look like.

(END VIDEO CLIP)

HAYES:  It seems like that applies here, right?

REP. RYAN COSTELLO, (R) PENNSYLVANIA:  I guess.  I would probably say -- I would probably use the word rebuke than a mandate.  I think it was a rebuke on the president because you saw 20 -- out of 24 districts where you had a Republican member of congress yet vote for Hillary Clinton, you now have you three or at best four Republicans remaining.  And I just think it was extremely difficult, if not impossible, to differentiate yourself and have voters who ticket split, vote for you if they were anti-Trump or if they evolved to being anti-Trump over time.

The Democrats, to be fair, this isn`t critical, but in all reality, they didn`t campaign on a particular policy agenda in as much as it was a check and balance provide oversight type of a campaign would you say that was more of a mandate or more of a rebuke?

HAYES:  Here`s the thing, I thought going in that was what it was going to be, but having covered that -- the races very closely, it was actually the opposite wierdly.  I mean, in a lot of those races, like New York 19 here or New York 11 or a bunch of other races, the Democrats were campaigning on health care and not talking about the president, weirdly enough, almost to an extent that I think people thought was crazy.

COSTELLO:  My quick observation there would be I think what happened is the electorate was very softened up in being anti-Trump, and then in New York, New Jersey and California, they layered the salt deduction in high tax districts in order to grab a couple points from Republicans.  And then they used the pre-existing conditions because of the vote that never became law as another layer.

But Democrats weren`t campaigning on a particular policy agenda with health care, they want to make it more accessible, less costly.  That`s fine.  We all do.  But I don`t think they were laying out a marker in terms of what they were going to do policy specifics, that was my point.  That`s why I would say rebuke rather than mandate.

HAYES:  What do you think, Donna?

REP. DONNA EDWARDS, (D) MARYLAND:  I could not disagree more.  I mean, in fact, while we were all having this big national conversation about President Trump, for sure, every mid-term election is a call on the president who is in office, and this was a rebuke of the president.  But the fact is, in every single one of these districts the candidates chose to run on an agenda of creating jobs through rebuilding infrastructure, on health care.  Health care, which actually polled as the number one issue coming out of the election.

And so to say that Democrats didn`t have a message or didn`t run on anything is just not accurate.

HAYES:  Let me just follow up on that, because if there is -- let`s say there is a mandate or they ran on health care, what do you you see that as the mandate for, right?  I mean, clearly health care was extremely powerful, potent issue.  It was the number one issue, as you said.  I watched race after race in which it worked from Kansas to Orange County.  What do you think the mandate now is for?

EDWARDS:  Well, I think, you know, people -- obviously, the electorate is really satisfied with Obamacare, with the Affordable Care Act, but they know that it has gaps.  And so they want to make sure that they really do protect against discrimination on pre-existing conditions, making sure to close the gaps from all the people who are still not covered under the Affordable Care Act, and of course lowering the cost of prescription drugs.  This factor varied heavily in so many races across the country.

And so I really do think that Democrats have something to govern on in addition to what they ran on.

HAYES:  Congressman, let me ask you this, a lot of your colleagues, soon to be former colleagues, a lot of them haven`t been in the minority before.  What do you think life will look, the tactics will look like, the politics will look like, for the new House Republican minority?

COSTELLO:  Well, I`ve always said that it`s easy for any party to be in the minority, all you have to do is vote no and most of your electorate is going to be happy.  In this case, there are -- we have lost a lot of the more centrist Republicans, so it is a much more conservative conference by percentage, because we`ve lost a lot of Republican moderate members and we just have less members to begin with.

I do want to pick up on one other point, I think the other thing that really became a challenge for a few Republicans that just barely lost, was the birth right citizenship caravan nonsense.  You had districts in Florida and in California with high immigrant populations and those members bucked the party, along with myself and others, on an immigration compromise package trying to say, we don`t agree with the president.  We don`t want to inflame the immigration issue.  The president went and inflamed it.  And I think a lot of others said well how can I be for you when the president -- he`s going to override you?

HAYES:  It`s a great point.  Donna, it does -- that seems to be another big lesson here, the backfire on the immigration stuff.

EDWARDS:  Well, absolutely.  And I think if anything what we learned from this is that when you put immigration on the table, you actually are opening the door, you know, in states like Florida and in border states, where they`re the ones who have -- who stand the most to gain or lose in this conversation and immigration.  And they just weren`t -- voters weren`t having it.  And I think, you know, it underscores actually why it is that I believe that Nancy Pelosi is actually going to have a governing agenda come January.

HAYES:  Well, and I think she is going to be the speaker.  The cards look like they`re are going that way.

Former Congresswoman Donna Edwards and Congressman Ryan Costello, thank you both so much.  Have a great holiday.  I appreciate it.

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

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