CHRIS MATTHEWS, MSNBC HOST: "ALL IN" with Chris Hayes starts right now.
CHRIS HAYES, MSNBC HOST: Good evening from New York, I`m Chris Hayes. And there is breaking news tonight in the Russian investigation. Paul Manafort, Donald Trump`s former campaign chairman is ending his cooperation with the Mueller probe in what sure looks like a last-minute ploy to get pardoned. Lawyers on Robert Mueller`s Special Counsel Team say that Paul Manafort violated the terms of his plea agreement by repeatedly lying to the FBI and Special Counsel`s Office.
In a joint status report, the Special Counsel and lawyers from Manafort have requested the court scheduled sentencing for Manafort. Manafort`s lawyers say he "believes he has provided truthful information and does not agree with the government`s characterization. Joining me now with the latest on this filing, NBC News Investigative Reporter Tom Winter and NBC News Intelligence and National Security Reporter Ken Dilanian. Tom, this seems like a crazy turn of events.
TOM WINTER, NBC NEWS INVESTIGATIVE REPORTER: I think if the government is to be believed here that Manafort lied, Manafort has committed legal suicide. I mean, he`s essentially said here and what this document says is that he`s lied on a variety of subjects. And according to his plea agreement, not only does this impact the case that was brought against him in D.C. but now in the Eastern District of Virginia case which the counts they were dismissed the jury deadlocked on a number of counts going back to that trial in August. The counts that were brought there that were dismissed by the judge were dismissed without prejudice. Meaning, they can come back.
And according to Manafort`s plea agreement, he`s admitted his guilt in those crimes. So Paul Manafort right now is looking at the possibility that most of his remaining days will be will be looked at from behind bars. It`s really incredible. Of course, Manafort`s disputes it in this filing but what you`re looking at here is they must have strong evidence that he`s lied.
HAYES: Let me just say, dispute is a little strong. They`re -- paragraph five in this filing --
WINTER: They say he did not lie.
HAYES: They say he did not lie but basically he tried to the best of his ability to be cooperative. They do not affirmatively say that he was -- answer all the government`s questions, they do not affirmatively say that he told them everything he knows as per the plea deal. It`s a little bit - - I mean, the wording is sort of a little interesting to me.
Here`s the other thing. This is what the Mueller team says, Ken. It`s just a remarkable sentence to read. After signing a plea agreement, Manafort committed federal crimes by lying to the Federal Bureau of Investigation, the Special Counsel`s Office on a variety of subject matters which constitute breaches of the agreement.
This is I think if I`m counting correctly the third time they have busted him since they brought charges against them.
KEN DILANIAN, NBC NEWS INTELLIGENCE AND NATIONAL SECURITY REPORTER: That`s right, Chris. And that`s why the pardon scenario that you sketched out at the beginning is a plausible scenario according to legal experts I`ve been speaking to tonight but it`s not the only scenario. Former prosecutors or current prosecutors will tell you that it`s not unheard of for white-collar defendants who enter cooperation agreements to think that they can put one over on the government, to think that they can lie, to not tell the whole truth. They`ve been scamming people all their lives.
And look, Paul Manafort was like essentially a career criminal according to these charges that he`s pled guilty to. And to think that he maybe could have gone in and told the partial truth not realizing that Mueller knows everything that`s one scenario. The other scenario as you -- as you mentioned is that people are wondering whether some message was conveyed to Paul Manafort dangling a pardon in front of it.
Now, it doesn`t make sense. If he was going for a pardon he wouldn`t have pled guilty and entered a cooperation agreement in the first place. He would have continued to stand trial in the Eastern District -- rather in Washington D.C. taking his lumps and conveyed to the president, look, I stood tall for you. So the pardon thing only makes sense if something was conveyed to him.
And let`s remember his lawyers would not be monitored. Their conversations are clear from government monitoring and their conversations with Paul Manafort would not be monitored unless the government had evidence that crimes were being committed. So that is a possibility. I think it`s something that I think people will want to investigate.
And to some people, it`s the only scenario that makes sense because as Tom said he`s looking at 15 years. He`s admitted to everything. He has no defense he can`t withdraw the plea. He`s going to prison as it stands right now.
HAYES: Yes. And just to trace what Ken is saying here, this you know, Manafort gets charged.
HAYES: He does this weird thing where he -- his lawyers make sure they don`t consolidate the cases. So he`s in two different venues which is weird. Usually you want to consolidate them.
WINTER: It was -- it was -- I talked to them about this. This was totally an effort to say hey, we hope -- we think we got a good shot at a judge that might make some rulings in our favor. This judge in D.C. because the charges were brought there first, hey we`ve got no shot with her. She`s not ruling our favor at all so they were -- they were absolutely rolling the legal dice.
HAYES: So they roll the legal dice, then the guy gets convicted.
HAYES: You did -- convicted on a bunch of felony charges that give him a lot of time in Virginia, and then in between trial one and two he pleas and people are looking and saying, dude, you just sold -- you sold the lowest level. Like your plea -- you could have plead ahead of time and maybe gotten out of this but now you`ve got -- you`ve got both these things down on your shoulder.
WINTER: Yes. I mean, that`s the problem that he has here. He still has all these Eastern District of Virginia charges that are potentially hanging over his head. He`s already pled guilty to several charges in D.C. That will all go to this. One thing that`s interesting, Chris, I think we`re going to get a sense here of exactly what he did because according to the filing tonight they say, the government says they will file a detailed sentencing submission to the probation department and the court. Usually, we don`t get to see that if it goes directly to probation so we`ll --
HAYES: Right. They`re saying we`re going to make public what this guy did.
WINTER: It sure appears at this point that that will become public. And the other thing is, it`s not just lies, the defendant`s crimes, and lies. So was there something else that he was doing to you. Remember, there were charges of witness tampering that he was facing before all this came up, before this cooperation and plea agreement so I think there`s a lot more questions tonight as far as what Paul manna for has been up to.
HAYES: It`s a great point, Tom. And Ken, to that final point, remember, they -- he was out -- he was -- the guy was out on house arrest, he was wearing two ankle bracelets, one for each trial venue he was in, and he ends up back in prison because the government said he was attempting to do witness tampering, while out on house arrest.
DILANIAN: Yes. This is an incredibly reckless man. I mean, the evidence at the trial with his tax evasion and you know paying for things with money from foreign bank accounts show that he was incredibly reckless, he was hiding millions of dollars from the IRS, and that witness tampering while he was under indictment which got him thrown in jail you know, shows that he is in -- you know, the things that he does do not make sense and that`s why right it`s hard to puzzle through the rationale of this.
HAYES: Well, he`s stupid, he`s reckless, he`s some combination of two, or he is desperate to cover up some set of facts he does not want come to light no matter what the penalty ends up being. Tom Winter and Ken Dilanian, thank you both.
DILANIAN: You bet.
HAYES: Joining me now, Jill Wine-Banks and Nick Akerman, both former Assistant Watergate Special Counsels NBC -- MSNBC Legal Analyst. Jill, I`ll go to you first. What is -- what is your read on this development?
JILL WINE-BANKS, MSNBC LEGAL ANALYST: I do think that there is something going on about a pardon, that maybe there was some contact by the President or some representative of the president that he would get pardoned.
But I`d like to add one other thing to what Ken said which is I think there is a theory that makes this plausible and sensible that he would have pled guilty to avoid the cost of a trial knowing that he would get pardons at the end and that he might be able to get away with lies because he is reckless and arrogant, and that if he could get away with them he might actually be able to help Donald Trump by getting away with it and saying things that might be exculpatory of the president instead of incriminating of the president. So I think that there is a sensible approach to this that makes it sensible.
HAYES: What do you think, Nick?
NICK AKERMAN, MSNBC LEGAL ANALYST: I think that`s very plausible. No question about it.
HAYES: Basically you think -- Jill is saying that he thought he could beat the rap, essentially, and get one over on the Special Counsel`s Office and essentially kind of be a double agent, pretend to cooperate well not actually cooperating.
AKERMAN: I used to have witnesses do that to me all the time and the same thing would happen.
HAYES: They pretend to cooperate but they weren`t --
AKERMAN: Right. But they weren`t telling you everything. And you knew they weren`t telling you everything and you know that Mueller does know everything.
HAYES: That`s what`s so tantalizing about this filing because he`s basically saying we know you`re lying to them.
AKERMAN: Look what he knows about the Russians. I mean, he was able to detail in two indictments where people were sitting, what was on their desks, what they were doing at a particular time of the day.
HAYES: And e-mail that one GRU officer sent to his family.
HAYES: That shows up in one of the indictments.
AKERMAN: And so you know, he knows the same thing no it was the same thing on Manafort. So what Manafort is doing, I mean, he thinks he can somehow beat this and he`s smarter than everybody else but he`s going away to jail for life, that`s it. But it`s not unusual. Let me say this, it is not unusual for a witness in that position to suddenly get hammered at sentencing and then come around again and start cooperating.
HAYES: That`s interesting.
AKERMAN: And that`s why you might see some language in these court filings where they don`t come down quite as bad because they know at some point --
HAYES: They`re trying to keep that door open.
AKERMAN: -- he`s going to be government witness.
HAYES: Well, Jill, you said something about the pardon play and I want to follow up on that because there`s two other data points here. You got George Papadopoulos who was the first person who pleaded guilty, it was under seal but he was the first to plead guilty. He shows up for prison today, Federal Prison in Wisconsin after trying to wriggle out from under his guilty plea. Essentially, he pleaded guilty, he then kind of trains his story, he said he was duped, wanted to get out of it, the court would let him.
And then you got today, you got Jerome Corsi, Roger Stone`s associate who we know has been subpoenaed multiple times by Mueller telling NBC News that he is rejected a plea. So it`s sort of interesting to watch Manafort, Corsi, and Papadopoulos, all these people essentially trying to get out from either rejecting a plea upfront or get out from pleas they already signed on to, makes you wonder what`s going on.
BANKS: It does. But I just want to clarify that I also think that it is sensible that he would have pled because he got only two counts that he pled to and he avoided the cost of a trial.
HAYES: Right, that was a big factor. Yes.
BANKS: And then he can -- right. And now he can still get pardoned. So for Manafort, it may make sense. For Corsi, we don`t know whether the plea deal was withdrawn. For Manafort, he`s a lousy witness. Let`s face it. If the jury didn`t believe Gates, this is a man who`s been convicted and pled guilty to crimes that make him not a credible witness. So for him to be useful to Mueller, he`s going to have to come up with documentary proof, something that is ironclad for him to be believed. And I don`t think he`s willing to do that so that`s where I think we`re at with him.
HAYES: That`s interesting.
AKERMAN: I think he`s got that documentary proof that --
HAYES: You think that Mueller does.
AKERMAN: Mueller does. And he knows --
HAYES: And tipping his hand in the filing saying we`re going to show you what this guy did.
AKERMAN: Right. Now, you may not see that though in the public filing. You may only -- they may only be given to the judge under sealed because it`s going to relate to a matter still under criminal investigation.
HAYES: Final thing, real quickly. I learned from both of you, Nixon was dangling pardons all over the place back in the day and it was part of the -- part of the obstruction case essentially.
AKERMAN: Right. I mean --
BANKS: Yes he was.
AKERMAN: Yes, it`s is true and it`s happening here. I mean, Trump is -- well, he`s basically was trying to interfere with the jury that Manafort was tried before. He was trying -- I mean, one of the jurors even quoted from Trump about a witch-hunt which is why they hung on certain counts. So --
BANKS: I said 18 months ago that there was a case for obstruction and I believe it`s only gotten stronger with each passing day.
HAYES: Well, and it looks like we`re on the precipice of learning some new information. Jill Wine-Banks and Nick Akerman, thank you both. Joining me now, Congressman Jim Himes of Connecticut, a Member of the House Intelligence Committee. What do you make of all this, Congressman?
REP. JIM HIMES (D), CONNECTICUT: Well, we were waiting for that other Mueller shoe to drop post-election and I guess -- I guess that process has begun in a big way. Look, I having listened in on the show, you know, one thing we know about Manafort, he may be a dirty guy, he`s not an irrational guy. You know, he doesn`t do things that are -- that are stupid for his own well-being.
So you know, of course as somebody who participated in the House Intelligence Committee investigation of what was going on I`m very interested about what he might have been trying to hide, what he might have been trying to signal to the president that he did him right in the expectation of a pardon down the road. So look, the other lesson here of course is you don`t pull one over on Mueller so I fully expect that we may get a glimpse into whatever it was that Manafort was trying to hide.
HAYES: Well, from your perspective, I wonder like the president -- the possibility the president has communicated or communicated through intermediaries about pardons. How relevant is that to you as a member of Congress and a member of a Democratic majority that`s about to take a gavel back as something that you think Congress has a right to find out.
HIMES: Well, of course, we have a right to find out I mean at some point that sort of thing becomes a willful obstruction of justice which is a crime and arguably an impeachable crime as Richard Nixon so dramatically learned. And so -- but you know, here`s the thing, Chris. Who knows? Maybe it happened but you know, what do we know about Donald Trump? He`s willing to do outrageous things you know, while he`s president United States with a reelection in front of him.
So if you`re any one of these individuals who`s pled guilty including Paul Manafort in the back of your mind is thinking to yourself hey, on the last two days of this guy`s presidency you know, of course he`s going to -- he`s going to pardon me especially if he knows that I served his interest. And that gets me back to why exactly did Manafort -- what exactly was he trying to cover up here.
HAYES: What -- how would pardons land on Capitol Hill?
HIMES: You mean, how would we learn if somebody had been promised a pardon?
HAYES: I mean, what were the political reverberations be of a pardon by the president of someone like Manafort or someone involved in this?
HIMES: Oh look, I think you know, I think that would be politically very tough. I mean, you know, the lesson -- remember, Capitol Hill is fundamentally a political entity. People on the Republican side make their calculus based on what`s likely to happen in the next election. And if the president is toxic, if his approval ratings are five points lower than they are today, at some point Mitch McConnell and other Republican leaders start saying oh my God, you know, we`re going to -- in 2020 we`re going to be where we were in `08 where we`re at significant risk of losing the presidency in our Senate majority.
And at some point, if the numbers get low enough, those Republicans are going to distance themselves from Donald Trump.
HAYES: Yes. The question is how low and what it will take to get there. Do you -- let me ask you this too -- and I`ve asked members of Congress and members United States Senate but I find it fascinating. You`re watching the Mueller investigation as if it`s in a black box, like every other one of the 350 million Americans right? I mean, you don`t no idea what`s coming and you have no idea what the underlying facts are?
HIMES: Well, the first part is certainly true. I mean, Bob Mueller very intelligently has kept a you know, has kept the Congress completely in the dark in particularly the Intelligence Committees. The House Committee obviously having been so compromised by the actions of Chairman Devin Nunez so Mueller has you know kept us off with a bargepole. Do we know more facts? Yes. Of course, you know, both the Senate in the House have undertaken their own investigations and so yes, we probably do have a few more facts than the average person out there. But you`re absolutely right, with respect to the Mueller investigation we`re reading about a lot of this stuff in the newspaper.
HAYES: All right, well, buckle up. Congressman Jim Himes, thank you very much.
HIMES: Thank you, Chris.
HAYES: I want to bring in Jennifer Rubin, an Opinion Writer at the Washington Post and MSNBC Political Analyst, Sam Seder Hosts of the Majority Report and an MSNBC Contributor. Sam, there`s so much going on here that`s so perfectly characterizes broadly the Trump world. Like the lying, the flagrant disregard, the lawlessness, and the apparent belief they can get away with it. Like it`s all there on display in this one little filing on Paul Manafort.
SAM SEDER, MSNBC CONTRIBUTOR: Yes, well, I mean, Paul Manafort is in his 60s and he seems to have gotten away with it for maybe decades and now he has an ally who he`s protecting who`s theoretically one of the most powerful individuals in the country, and so maybe he`s right. I mean maybe he can get away with it. We don`t -- like you said with the Congressman, we don`t know what`s in that black box.
HAYES: That`s the thing.
SEDER: And so we`re just looking at shadows of shadows essentially and we don`t know what is casting those shadows.
HAYES: But this returns me always to what so sort of insane and think politically suicide about the Republicans approach to this and I don`t know if they have other hand to play so this may be all they can do. But they don`t know what they`re covering up for fundamentally. Like, they signed on to a cover-up and they don`t know the underlying facts and at some point, the underlying facts will come out and maybe there won`t be that bad in everyone will go -- or maybe they`ll be terrible and then they`re stuck. Jennifer?
JENNIFER RUBIN, MSNBC POLITICAL ANALYST: Yes. Well, first of all, this should be a lesson to President Trump and to the other witnesses that Mueller has a wealth of information. And so that when you respond to him whether there are answers in writing or whether they are answers to an FBI agent or answers to the special prosecutor himself, you had better be telling the truth. And the same is the case with regard to testimony before Congress. That`s also grounds for possible perjury investigations and prosecutions if these people have lied to Congress.
So I think these people who simply are moving lockstep with Donald Trump are absolutely playing with fire and they are still in the position where they refuse to bring to the floor the Senate legislation to protect Mueller. They are still I think by and large carrying the President`s water saying that this all of witch hunts. But you know, I think there`s beginning to be a difference I can break a little news there will be a poll tomorrow showing this that there is some erosion on the Republican side out there in the country and that`s new.
What we`re seeing is that the average Republican is becoming less supportive of Donald Trump than his member or her member of Congress or the Senate and that`s when I think they turn around and say well maybe we need to rethink this.
HAYES: Yes. I think -- so I think the Himes calculation is correct right? They will abandon him if and when it`s political peril. The question is at what point that would be the case? I mean, again, they`re underwater.
SEDER: Right. But you know, when you look at the map, right, you know, look at where Trump went into those red states and he helped, the problem is that the polarization is such that suicide may be the only option on a lot of these people.
SEDER: I mean, honestly there is -- there is no -- it is so --
HAYES: You`re watching it happen in slow motion.
SEDER: Yes, when we`re looking at national numbers.
SEDER: But when -- but no one but the president is elected on a national level.
SEDER: They`re elected in their very red state or they`re elected in their very read district --
HAYES: Particularly after 40 of them got purged.
HAYES: Where you now got the revanche that`s set that`s in the House.
SEDER: Yes. This is the sort of the pure -- the pure Trumpist here. And so I think five points maybe a little optimistic. I don`t know if there is a threshold where there`s massive exit you know, walking to the exit from Republican lawmakers.
HAYES: Here`s what I would say. We`ve all been wondering about this, right? I mean, because they have. They signed on to the cover-up, they don`t know what it is, they`ve carried water for him, Jennifer. The -- what`s notable about the timing to me today is this happens after the President submitted his written answers --
HAYES: -- that we get this tip of the hand from Mueller. And it makes you wonder like OK, now, like if that`s a closed parenthesis on a certain part of this or an end of the chapter because the present presented. What do we learn now and what does that mean for the politics of this next era we are now entering?
RUBIN: Exactly. I think we know far less and every time that Mueller has come out with an indictment, we`ve all been surprised. There have been new characters, new allegations, a new granular level of detail that we didn`t think was possible. We now have of course, Roger Stone and his associates being squeezed. That`s a further link to WikiLeaks into the underlying collusion which Trump continues to deny. So I think we are far, far from the end.
These folks who think that this was going to wrap up last year or this year or even the beginning of next year, I think we`ve got a long ways to go.
HAYES: This also feels like a signal for Mueller`s people. Like the way this is written and what they`re saying in this filing of that like we know things.
SEDER: Yes. I mean, one gets the sense that they were two or three moves ahead of this. Like this -- it wasn`t completely out of left field from their perspective.
SEDER: This was -- there was at the very least several scenarios and this was one of them and they were prepared for it. And you have a sense that they know what comes after this.
HAYES: They are controlling the tempo of the battle as it were. Jennifer Rubin and Sam Seder, thank you for your time. Stay with us. Lots more to come including how the lawlessness of the border is being committed by the White House. we`re back in two minutes.
HAYES: Once again, the Trump Administration has intentionally created a spectacle of cruelty and desperation at the U.S. border. And the cruelty is the direct result, let`s be clear, of the lawlessness emanating from the White House. Just as child separation was an intentional strategy to create misery, even as the administration lied about, the Trump White House is now using the migrants from Central America, many of them mothers and children to create a new spectacle of cruelty tear gassing people on Sunday as they tried to get through the border.
The pattern is depressingly simple. President Trump, a voracious cable news watcher does not like to see groups of immigrants from Central America trying to come to the country so his administration finds a way to punish those immigrants. And to do so visibly, dramatically, to demonstrate to his base that he Donald Trump is on their side against Hispanic toddlers.
That`s why he deployed troops the U.S. border, stringing up concertina wire instead of preparing for Thanksgiving with their families. That`s why this administration separated immigrant families taking children as young as one-year old away from their parents with no real plan for reuniting those families until a court forced them to. And that is why the United States government yesterday used tear gas against civilians, a weapon so awful that is banned in the use of warfare.
All as the United States has let`s be clear, experienced a net outflow of undocumented immigrants back into Mexico. The people on our border who are asking for asylum are quite literally fleeing for their lives. The only reason they are in this position being tear gassed and treated like criminals is because this President has already worked steadily to dismantle what had been an established, orderly, lawful immigration system including legal ways of asking for asylum.
Instead of these people presenting themselves and applying for asylum at a port of entry as the U.S. law requires, they are instead being intentionally and illegally kept out. In other words, there is lawlessness on the border but it is the lawlessness of Donald Trump ordering his administration to break the law. All to create images like this one, a mother and her children wearing flip-flops and diapers fleeing the destructive force turned against them by the United States of America.
For more of what unfold this weekend, Texas Democratic Congressman Joaquin Castro. Congressman, your response -- your reaction to watching that scene unfold in San Ysidro.
REP. JOAQUIN CASTRO (D), TEXAS: Well, like a lot of Americans, I was horrified to see women and children, these are folk -- babies and diapers barefoot being gassed. And I think Americans were horrified at the idea of agents of the United States government making a decision to use tear gas on kids that are two or three years old.
And as you mentioned, this was a self-created chaotic situation by the president. He has used migrants from day one even before he became president through the campaign as the number one political boogeyman for him. He has weaponized resentment and fear of migrants basically to his political benefit. And that`s why you see him do a lot of things that he does with respect to migration and immigration.
HAYES: Here`s Lindsey Graham. Lindsey Graham, a co-sponsor of the gang of eight bill that made his way through the Senate, Comprehensive Immigration Reform, a man who said that if the party nominated Donald Trump will get annihilated it and they`ll deserve it. Today I have worked many Democrats of compassion for illegal immigrants already in the United States. In order to solve this problem now, it`s time for Democrats to be clear they too oppose the lawless behavior from illegal immigrants at the border.
Basically, he`s saying that Democrats need to get tough, then you adopt Donald Trump stances, maybe you got to build the wall, and then we`ll come to the table. What do you think of that?
CASTRO: Well, first, most Americans and most Texans disagree with building a 2,000-mile wall between the United States and Mexico and they disagreed with the president from the beginning. Also as you mentioned earlier, the migration from Mexico and other parts of Central America is lower than it`s been in decades. There`s a net migration back to Mexico for example. If - - especially when you compare the numbers to say 2001 or 2002, and so this really is now very much a political issue that the president has used and created in his favor.
And you know it just speaks -- Lindsey Graham`s quote speaks to how far we`ve come from just a few years ago when the United States Senate in a bipartisan way, I think was 68 votes passed a comprehensive immigration reform bill but John Boehner refused to put it on the floor vote because he was scared of losing his speakership and then the next year he quit his speakership.
HAYES: You know, part of this also I think is this question of scale. I mean, when people look at the images and the way that the caravan has been covered as this massive invasion, how do you -- how do talk to people about the scale of what we`re seeing and give some perspective to that?
CASTRO: It can be tough actually. I remember about a week and a half before the election, I was actually getting a haircut and the woman that was cutting my hair who was a Democrat said that she thought that the points that the president were making were actually getting through to people, that people in Texas in San Antonio were scared of this idea that you would have a mass of people that were trying to invade the country.
So it`s a lot of I think talking about the facts and the fact that these are asylum seekers, that there`s -- that they`re fleeing violence, that they`re in a desperate situation. I mean, if you think about it, you look at those images, these people, a lot of them don`t even have shoes on, much less any weapons to hurt anybody.
HAYES: Yes. It`s also worth noting these are the people in some ways that are the most determined, the most desperate because they have managed to walk a thousand miles.
CASTRO: You know, that`s true.
HAYES: They`ve walked a thousand miles. I mean, that`s a pretty insane thing to do.
CASTRO: Yes, that`s right. I mean, it speaks to the human will, but all of this was also created because the President -- you know, we put out a statement today at Congressional Hispanic Caucus that for generations both Democratic and Republican administrations have had an orderly process for asylum. And this president has basically knocked all that, destroyed all that, and what he needs to do is reestablish that orderly process for petitioning for asylum.
HAYES: Yes, Congressman Joaquin Castro, thank you for being here. I want to follow up on that now with Lee Gelernt. He`s the Deputy Director of the ACLU Immigrant Rights Project who has argued in court against this administration`s treatment of immigrants. All right, asylum in the United States, guaranteed under international law and U.S. law, correct?
LEE GELERNT, DEPUTY DIRECTOR, ACLU IMMIGRANT RIGHTS PROJECT: Absolutely.
HAYES: And what does it mean to present yourself for asylum in the United States under U.S. law?
GELERNT: It means you submit an application notwithstanding the narrative that`s coming out from the administration. It is not an easy standard. Not everyone gets it but there has to be a process. We cannot eliminate a process that will save people`s lives. We learned that after World War II, we wrote it into domestic law, it`s in an international law, and all the administration`s doing now is trying to eliminate it rather than just sending more officers to the ports to process the applications which would be easy. They`re just not that many people. They`re finding every way possible as you said to create this chaos and try to create images.
HAYES: So let`s create a counterfactual. Like, imagine an administration that didn`t want that image, right.
HAYES: You could put border officers in San Ysidro`s port of entry, which is a legitimate port of entry, right, so it`s like lawful to go there and just process the people coming through.
GELERNT: For sure.
HAYES: That`s what U.S. law says we should do.
GELERNT: For sure.
HAYES: But we`re not doing that.
GELERNT: And some people will get asylum and some people won`t. We`re not arguing that everyone has a right to come here, but they should have a process. There is no question we have the resources to have an orderly process, exactly what you said.
HAYES: To be clear, the reason that that -- the images that you`re seeing on your television right now exist is because that -- the administration took a bunch of steps, including one struck down by a district court, to say, no, you can`t -- basically like blanket, no, you can`t do that.
And one of the things they`re trying to do is say, look, we`re being overrun. There`s a crisis. There`s never seen these numbers. I argued that case in court in San Francisco last week and I read the numbers to the judge and showed that how between 2000 and 2008 there were double or triple the number of people entering.
And now the administration is saying we`ve never seen numbers like this before, it`s simply not factually true.
HAYES: My executive producer this morning said you know it`s the same people -- the number of people getting out of a Cincinnati Reds baseball game at night, like does that mean the streets in Cincinnati are crowded at that hour? Yes. Is that a national issue that 350 million Americans have to be concerned with? Certainly not.
GELERNT: Exactly. And that would fill up only a small part of the Reds stadium. And, you know, it`s just not the crisis they want to say it is.
HAYES: But tell me about the law here. I mean, they issued an executive order -- again, this all compounds, right. They basically said, no, you can`t -- they tried to deny -- they both closed ports of entry to asylum seekers and they`ve also said if you enter between ports of entry...
GELERNT: So you`re putting your finger on it, that`s what they`re doing, it`s the double whammy. Congress has made it clear, it doesn`t matter where you enter, you have to be allowed to apply for asylum. But they said we`re not going to give you asylum if you don`t enter in a port of entry, so people are going to ports of entry, but they`re not being allowed to apply.
Little kids are waiting out there, sleeping in horrible shelters on the street for weeks and weeks and weeks. So they`re getting them at both ends.
HAYES: They`re saying, you have to come to a port of entry, because you won`t -- which a judge struck down. The judge said that`s actually in contravention of U.S. law. You can`t override congress. You argued that case adeptly, it appears. And then they sheltered a port of entry, and you get a scene like this, because they`re basically saying, no, can`t come in. No room at the inn.
GELERNT: Exactly. And now they`re talking about something even worse, stranding them in Mexico and saying for months or years, you`ll have to wait in Mexico while you try and get a proceeding in the U.S. I mean, it`s just horrible.
And then we have the gassing of these children. I mean, that can`t happen in the United States. And you`re absolutely right to couple it with the family separation, there`s just no empathy or proportion going on. We`re having little kids first being separated, now they`re using tear gas on little kids, I don`t -- we`ve lost any sense of perspective.
HAYES: Final question here about asylum, the creation of the standard of asylum is a post World War II phenomenon.
HAYES: And it a result, as I understand it, of things like the famous chef who came to the U.S. full of...
GELERNT: Right, the St. Louis...
HAYES: St. Louis full of Jewish refugees attempting to flee Nazi Germany that got turned back and those people were murdered. And that happened in various places for various ways and it was created, the standard of asylum created in response to that.
GELERNT: Exactly. And I had a federal judge in a case I argued recently say to the government in open court, don`t you remember what happened with the St. Louis when we turned them back? Don`t you know that this is why we created -- I mean, I think everyone in this country needs to look back on the history and remember what happened when we didn`t have these laws.
HAYES: And the final point here is, it`s not that everyone get -- it`s not that this is is a rubber stamp, in fact it`s the opposite, this is a difficult thing. It`s a lawful process to apply for and a difficult thing to obtain, but there is a legal process that exists.
GELERNT: Exactly. No one is saying that everyone will get asylum or is entitled, but there has to be a process for those people who genuinely are in danger.
HAYES: Instead of being told to stand on the other side of the border and get teargassed.
HAYES: Lee Gelernt.
GELERNT: Thank you for that.
HAYES: Next, it`s election eve in Mississippi and Republicans are fighting to hold onto their senate seat as the president drops in for two rallies. The actual candidate is avoiding questions at all costs.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Why not speak about the issue of race? There`s a lot of people that we have talked to across this state that are concerned about your remarks and what you were apologizing for.
Senator, why not speak to this issue? Your comments offended a great number of people, senator.
No, you haven`t -- I`m wondering, though, what is it that you are apologizing for?
Senator, you stood inside Jefferson Davis`s house and you said that this is Mississippi history at its best. Senator, what did you mean by that? Standing inside Jefferson Davis`s house and saying that -- senator, a third of your electorate is African-American. But senator, you`re running to be the U.S. Senates of the United States, senator. Senator, you`re running to be the U.S. Senator, why not talk about race?
HAYES: It looks like Republican Senator Cindy Hyde-Smith has figured finally out a strategy for success in the runoff election tomorrow: stop talking around cameras.
In the last few weeks, Hyde-Smith has been caught on tape saying she would enthusiastically attend a public hanging with a supporter of hers, and that Mississippi should make it, quote, more difficult for, quote, some folks to vote.
She said these things while running for office in a state that had more lynchings than any other state in the union, a state that has systematically disenfranchised black voters, including today, a state that still flies a flag with the Confederate emblem.
And Senator Hyde-Smith said these things while running against Democrat Mike Espy who is looking to become the state`s first black senator since Reconstruction.
The president is in Mississippi right now doing two different rallies in support of Hyde-Smith. Just hours before he arrived, seven nooses were found hanging outside of the Mississippi State Capitol with signs reading, quote, "we need someone who respects the lives of lynch victims. We`re hanging nooses to remind people that times haven`t changed."
To talk more about the senate campaign, I`m joined by Matt Viser, national political reporter for The Washington Post, who is in Mississippi covering the race.
Matt, what does it look like down there?
MATT VISER, THE WASHINGTON POST: It`s lively. We`re here at Mike Espy`s event on election eve. It`s gospel choirs, ministers, kind of rallying a largely black crowd, which is a lot different from President Trump and the crowds that he`s been rallying today at twin rallies in the north part of the state. He`s about to be in Biloxi in the southern part of the state.
HAYES: You know, obviously Mississippi is a place that is riven by its racial history, and the history of slavery, plantation, confederacy, the civil rights movement. It is a state with the highest percentage of African-American residents. And now this has all been front and center.
I wonder what your sense of reaction to the centrality of this race and the state`s racial history has been in the campaign.
VISER: It is absolutely the driving issue of this campaign that one remark and deeper explorations into Cindy Hyde-Smith`s history of supporting the Confederacy has really reshaken up this race. People are very tuned in. It`s helped energize black voters which, as you point out, is the highest percentage of any state in the nation in Mississippi.
So, I think that is a key part of tomorrow`s vote is how big the turnout is along the delta, along the areas where traditionally black voters live, but also don`t often vote. So I think that is a very key factor for tomorrow and if they can drive out the turnout.
Cindy Hyde-Smith is running a campaign very much linked to President Trump. She mentions him all of the time, and that`s what she`s hoping that he can drag her across the finish line.
HAYES: Do you feel he should drag her across the finish line? I mean, my perception from watching this race remotely is that she`s not doing so great. She has not run a great campaign, and it takes a lot to lose a Republican state like Mississippi. So, she`s got a lot of padding. But is that your sense there while being there covering it?
VISER: Exactly. The state Republican Party sent out a campaign mailer that arrived in mailboxes. It had President Trump`s image on it, it had President Trump`s name on it. I did not mention Cindy Hyde-Smith at all. It`s encouraging people to vote, but not mentioning the candidate to vote for.
So I think there is widespread recognition among Republicans that she has not run a good campaign, has not been a good candidate, and this race should not be as tight as it is. They still think that she probably wins just because of the political dynamics of this state, but I think Republicans privately will acknowledge she has not been a very good candidate.
HAYES: Yeah, and I guess the last question here is the degree to which what white voters end up doing. There is a question of black turnout. But what we saw in Alabama was Doug Jones was able to win about 3 in 10 white voters, which was enough to just edge him over with high black turnout and enthusiastic black turnout. And the question now, particularly as you talk about things like segregation academies which are extremely widespread among white Mississippians what that does to their decision making.
HAYES: Yeah, and I think that that has been -- the dynamics of this race has been sort of playing out around that. And what white voters will do. I talked to a couple the other day who, reliable Republican voters, they`re mainstream Republicans, but they were thinking about voting for Mike Espy because of the comments that Cindy Hyde-Smith made. They feel like it was an embarrassment to the state.
And so Mike Espy needs those types of people to be making those types of decisions. How widespread that is, I think we find out. But Cindy Hyde- Smith is banking on not enough of those people turning out.
But the other question is sort of whether white voters just don`t show up. You know, they`re not motivated by Cindy Hyde-Smith. They don`t feel great about her. They may feel good about President Trump, but is that enough to get them to the polls? And that I think is the question for tomorrow.
HAYES: Yeah, and a very weird election day in the runoff a few weeks afterward. Matt Viser, live from Mississippi tonight, thank you for joining us.
Still ahead, there is breaking midterm election developments, still. NBC News has retracted a call in a hotly contested California race.
Plus, tis the season, which season it is, well, you tell us. That`s tonight`s Thing One, Thing Two starting next.
HAYES: Thing One tonight, you may have woken up this Monday morning after the long holiday weekend with that now famous experience of remember that, oh, yeah, Donald Trump is the president.
Tonight, a reminder that Melania Trump is the first lady, which means she is in charge of decorating the White House for Christmas.
Now, you may remember last year`s holiday decor, it was less chest nuts roasting on an open fire and more frozen nightmare forest in the east colonnade.
Well, today the White House revealed this year`s decorations and it`s a lot like last year, only a bit more murdery. That`s Thing 2 in 60 seconds.
HAYES: Like Americans all across the country, the Trumps are decorating the House for the holidays. We saw the president and first lady greeting the official Christmas tree the other day, which has taken its place of honor in the blue room. But the official tree is just one of the trees we`re looking at tonight. Today, the White House released this video.
So, this is what the east colonnade looks like today. The White House says these are topiary trees, others are calling it the murder forest. : I wonder how many Elmos did they kill to make those," writes one user on Twitter. Others saw a striking resemblance to the uniforms made famous by the dystopian drama The Handmaid`s Tale. Bob Cesca (ph) saw gossamer, the very interesting monster from Bugs Bunny cartoons. Louanne (ph) in the United Kingdom was reminded of a car wash.
Now, look, let`s be best here, I respect the aesthetic boldness of the choice, and everybody has their own style. It`s just that not everybody`s holiday videos work so perfectly over the music from The Shining.
HAYES: Breaking news in the ongoing midterm elections, NBC News is now retracting its call in California`s 21st congressional district. The race had been called for the incumbent Republican David Valadao, but with votes still being counted, Democrat TJ Cox started closing the gap. And tonight, he actually pulled ahead. So NBC News now places the race as too close to call. Vote counting is expected to go through next week.
If TJ Cox ultimately prevails, that would bring Democrats` net gain in the House to 40 seats. They already won the House by a record-breaking margin in the popular vote. At least 8.8 million more people voted for Democrats over Republicans.
The question now is will Democrats embrace their newfound power.
Let`s bring in Adam Serwer, staff writer for The Atlantic, and Danielle Moodie-Mills, host of Woke AF Sirius/XM.
Adam, you had a point you made the other day about how the way that the sort of protagonist of American politics continues to be the kind of median Trump voter somewhere that that represents some true real voter, and it distorts the political perception of what the majority of Americans just voted for in this last election. Say more about that.
ADAM SERWER, THE ATLANTIC: Well, that the Democrats` margin of victory in terms of raw votes is bigger than, like, 35 American states. It`s about 9 million votes at this point. But something the Republican Party has been very successful in doing is persuading most American political journalists that the average American voter is actually an extremely conservative Republican.
SERWER: And you can see that in the assumptions both about how the Democrats should behave with their new power in congress, how politically who they need to appeal to to win, and that framing is very advantageous to the Republican Party.
Now, if you actually look at way the country is, what has happened is that the Republican Party has extracted a number of significant political victories owing to the counter-majoritarian nature of the American system which grants greater power to areas less densely populated and actually represent fewer people than the majority of the actual American population that votes.
HAYES: You know, Adam`s point there about -- you`re already seeing like -- you`re the stories about Dem overreach. And having been around Democratic politicians and covered them a lot, they are -- they do -- like I`ve watched Republican politicians who always worry about the Tea Party primary challenge, they always worry about their base. Democratic politicians, in my experience, have worried much more about like the swing voter.
DANIELLE MOODIE-MILLS, HOST, WOKE AF: Yeah. The reality is, is that Democrats make up this fictitious idea about their power, right. When they`re in power, they`re trying desperately to hold on to it. When they`re not in power, they`re complaining that they`re not.
The reality is is that we have a moment rights now where we are going to be the only check on this administration. Trump has had a green light and a clear pathway for the last two years. And so we need to govern as if we have the power, as if the people are actually on our side, as if all of the marches and protests that we`ve seen for the last two years are actually a reflection of where we are.
The Republicans govern in the reality that they make up in their mind and their alternative facts, we actually govern in reality. And so the reality is we have power. We should act like it.
HAYES: And also, Adam, a majority behind that power. I mean, even on this -- this Quinnipiac polling is interesting to me, like even on stuff like climate change, who I think Democrats still are a little defensive crouch about or they think, oh, I don`t know if people care about that, like 64 percent think more must be done. 10 percent think we`re doing too much. Like, that`s a huge majority. Same thing when you`re asked about immigration or health care, like the majority of people are on the Democratic side of immigration and health care. Go down the issues and there is a majority behind the Democratic majority right now, Adam.
HAYES: Well, I think that part of the reason for this fear, I mean, Republicans are terrified of their base, and Democrats are terrified of the Republican base.
SERWER: Well, I think that -- and part of the reason for this fear -- I mean, Republicans are terrified of their base, and Democrats are terrified of the Republican base. And I think part of the reason for that is the history of the Democratic Party, which is one in which they were the unquestionably majority party of the United States for much of the 20th Century, and then they lost that status in part due to backlash owing to their support of the Civil Rights movement in the `60s.
And so I think that story line, while Democrats take great pride in that, despite how incomplete that second reconstruction was, they are absolutely afraid of backlash from conservative white voters. And I think that guides their political behavior in almost everything, regardless of whether or not they have the wind at their backs or the support of the majority of the population.
HAYES: I think there is a generational aspect to that, too, to Adam`s point. I think that`s very generational. But what`s interesting is watching a lot of members of congress enter this House who do involve not have that generational memory of being blindsided by like Reagan backlash or post-9/11 backlash, and they seem to conduct themselves a lot -- they seem to conduct themselves as if they really do believe the majority are behind them.
MOODIE-MILLS: And they actually are reflective and look like the makeup of America that is now and the America that white Americans, conservative Americans, are afraid of that is coming down the pike.
Here is the thing, what Democrats need to stop doing is stop pandering to the white working class as if they`re the only ones that are part of the working class. This is the problem. When we get into identity politics and we were told after the 2016 election stop talking about identity politics, that`s what lost us the election. No, what lost us the election is constantly pandering to a class that isn`t on your side, that isn`t the future of this country, that isn`t the future of the party.
What black Americans have shown time and time again is that they are the backbone of the Democratic Party, and yet receive none of the investment from it. So the idea is this, let us stop pretending that white women and white men are going to save us from ourselves. They`re not going to. They`re always going to vote with their whiteness. That`s the reality.
HAYES: That is true -- that is true, although those margins matter a lot.
MOODIE-MILLS: They matter a lot, but here`s the thing if I`m looking at a pyramid, right, and we`re constantly looking at the top, I want to pay attention to the base, and the base are people of color.
HAYES: Adam Serwer, and Danielle Moodie-Mills, thank you both.
That is All In for this evening. The Rachel Maddow Show starts now with Ali Velshi in for Rachel. Good evening, Ali.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END