Conversation with Masha Gessen on new book. TRANSCRIPT: 10/4/19, All In w/ Chris Hayes.

Guests: Denny Heck, Elizabeth Holtzman, Richard Davis, Jill Wine-Banks,Masha Gessen

CHRIS MATTHEWS, MSNBC HOST:  And that`s HARDBALL for now.  "ALL IN" with Chris Hayes starts right now.

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CHRIS HAYES, MSNBC HOST:  Tonight on a special edition of ALL IN.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  There is no pro quo.

TRUMP:  Yes pro quo.  Damning new evidence of an explicit quid pro quo in the Trump shakedown of Ukraine.

UNIDENTIFIED FEMALE:  Where is the line?  Where are you guys going to say no?

HAYES:  Plus, just how much are Republicans willing to defend?

RICHARD NIXON, FORMER PRESIDENT OF THE UNITED STATES:  Well, I`m not a crook. 

HAYES:  And the prosecutors who brought Richard Nixon to justice on the mounting case against Donald Trump,

TRUMP:  I`m innocent of all charges.

HAYES:  Live from Studio 6A in Rockefeller Plaza, ALL IN starts right now.

(END VIDEO CLIP)

HAYES:  How`s everybody doing?  Thank you all.  Thank you.  It`s great to be back here in our Friday night home in 30 Rock.  What a day to be back.  All right, all right.  What a day to be back here.  If you`ve not heard, House Democrats are conducting a formal impeachment inquiry on the President of the United States.

Tonight, actually, this news just broke right before we came on air.  Democrats have just subpoenaed the White House for documents relating to that impeachment inquiry.  Now, I just think it`s worthwhile taking a second to remember how this all started so we don`t get lost in the weeds, right?

This all started a very simple story of Donald Trump on the phone pressuring the Ukrainian president to dig up dirt -- one could really say like manufactured dirt on his political rival Joe Biden.  And we learned all about it from a White House memo that the White House itself released, right?

Like just remember literally, this is so thing the White House chose to show us on their own.  Here you go.  See, the call was perfect.  Perfect.  There`s no crime here.  Now, it`s all the case the crime is literally right there, like you could literally read the crime in front of you.

The Ukrainian president asking for military assistance, right, the military assistance, $400 million.  And the very next line after he says like, Mr. President, we are ready to get some new weapons from you guys.  The very last line Donald Trump says, "I would like to -- I would like you to do us a favor, though.  Though.

What`s the "though" doing there?  Well, Donald Trump said in the call on its own, just that part, I think it`s absolutely an impeachable offense, right? Just the coercion -- you don`t actually -- and I really believe that this is not something that`s like written in the ten commandments or something, Right?  We all figured this out, as democratic said, but I think like full stop, coercing a foreign leader to do a political hit job in your on your political rival.  OK.

But the thing is that we`ve learned more and more is that that moment, Trump`s phone call is only one part of an enormous effort from the entire American government, like full spectrum.  So it`s not just a phone call, right?  And it`s not just Rudy Giuliani who`s running around doing his weirdness.  It`s like an entire comprehensive use of American foreign policy, the State Department, the ambassador of the E.U., the special envoy to Ukraine, all flowing through the White House and the State Department to get them to investigate the Biden`s, all right.

It`s a corrupt abuse of power to coerce an occupied country to hand over manufactured political attack in exchange for nearly $400 million in aid.  $400 billion, I should say, that they need to keep Russia out of their backyard, right.  They are being occupied by Russia right now as I speak to you right here.  All while, Russia is the country that helped get Donald Trump elected in the first place, which is weird.

Yesterday, the former U.S. Special Envoy to Ukraine, a guy who abruptly quit his job shortly after his name appeared in the whistleblower complaint.  He testified before the House investigating committee for nine and a half hours.  He`s there for a while.  He turned over pages and pages of text messages between him and other diplomats and Rudy Giuliani.  And that trove of text messages was released for everyone to see last night around 10:30.  And it`s bad.  It`s really bad.

I grew up in the Bronx in the 1980s, I went to public school and nice, yes -- in the Bronx in the 1980s, in public school.  When someone got caught or like called out by someone who liked told your business or like a teacher, like caught you, the room would be like, busted.

And all I can hear my mind last night when I was reading these texts was like my middle school cafeteria and be like, busting.  They`re busted.  Because here`s the thing, the tasks unmask that they were up to no good, right?  They document what were essentially several quid pro quo that they were lining up.  The Ukrainians had to deliver something tangible in exchange for Trump`s support. It wasn`t just a favor as Trump phrases it.

The quote is from one of the diplomats, "I think the President really wants the deliverable."  I think the President really wants a deliverable.  But even more than that, above and beyond the actual wrongdoing that`s documented in the text, the thing that is so damning about these texts is the consciousness of guilt that hangs over them.  And this is key to me.  This is actually key.  They knew what they were doing was wrong and they were trying to keep it secret.

On September 1st, OK, we`re just going to go through this.  September 1st, the U.S. Chief of Mission in Ukraine, he`s a guy named Bill Taylor, all right.  This guy just be clear, career Foreign Service officer, served in the George W. Bush administration and in the Obama administration.  This is this guy`s life work, OK.  This is what he does.

He texts the U.S. ambassador to the European Union, a guy named Gordon Sondland -- you have not heard that name before, I don`t think, but you should remember it because he`s about to be famous, OK.  Sondland actually is a Portland hotel developer who literally gave $1 million to Trump`s inauguration and appears to have gotten this gig as a thank you, OK.

That`s who Sondland is.

All right, so Bill Taylor, career Foreign Service guy texts, and I quote, "Are we now saying that security assistance and White House meeting are conditioned done investigations.  Now Sondland, the Trump appointee, the big donor, recognizes this is a dangerous conversation to put in writing.  And he responds, call me.

OK.  Probably best to talk about this one.  That`s not all, OK.  It is clear from these texts that the career Foreign Service guy is calling out what is happening.  He`s trying to get it into writing, because he knows what`s happening.  And then there`s another exchange, it happens eight days later.  Remember, they`re still working out this weird thing about what are the conditions that have to be met, and the aid is still being held up.

Another quote from the career foreign service guy, Bill Taylor, "As I said on the phone" -- nice one, Bill.  Nice one Bill.  "As I said on the phone, I think it`s crazy to withhold security assistance for help with a political campaign."  That is crazy, right?  So he says it on the phone that he texted it to bring into the record.  OK, he`s calling out what is clear as day is happening.  It is a corrupt abuse of power, it is a quid pro quo.

Now, here`s the thing about Trump.  Always for everything the President has two big defenses, two defenses.  One, he does everything in public so there`s no scandal, right?  Like, how can it be a scandal?  Russia, if you`re listening.  He told a foreign government to engage in criminal sabotage on his behalf in front of everyone, right?

And number two, and the second defense and you`re going to hear it a lot and you`ve been hearing last week.  It basically comes down to this -- and these are not my words, this is the characterization of the people defending him.  It`s essentially that Donald Trump is a morally incontinent sociopath who cannot tell the difference between right and wrong.  So you have to just give him a break because he like literally doesn`t understand the difference.

That is the defense.  He`s just Trump being Trump.  What do you want?  He literally doesn`t know it`s wrong.  And Trump himself, that`s his sort of - - that`s his approach as well, right?  He`s embracing this.  It`s is him on the driveway, publicly committing the same impeachable offenses, right?  He`s doing it in public.  Nothing wrong with it.  Saying this morning on the driveway, there`s nothing wrong.  There`s nothing wrong.  Corruption, there`s nothing wrong.

But these texts destroy that weird alibi.  The text show they all knew it was wrong.  They`re doing it in secret and they`re thinking about how to cover up. They know what`s wrong while they`re doing it.  And that`s what I actually think makes this different than some of the other different scandals we`ve seen, right.  Not only they knew it was wrong that they worked on their cover story.  So back to the text, right?  It`s after midnight, OK.

Early last month, our career foreign service guy Bill Taylor, you remember him, right?  Career guy, he`s in Ukraine.  He`s in Ukraine and he`s texting back and forth with Sondland, right, the guy who gave $1 million in the inauguration.  And this is the part of the text I read you earlier.

The career foreign service guy clearly uncomfortable, trying to put it on the record everything is happening.  Very specifically, he says, "As I said on the phone, I think it`s crazy to withhold security systems to help the political campaign."  And then silence.  Five hours go by.

The New York Times reports that before responding to this text that`s just hanging there with a career foreign service person being like, what you`re doing is crazy and wrong, right, that the Trump appointee Sondland spoke to Trump. 

The Times reported that yesterday.  He speaks to Trump.  And one could imagine -- I don`t know what was in the conversation -- but one can imagine what happened in the conversation between Trump the appointee about a career diplomat who`s now calling up the fact that they are corruptly extorting a foreign occupied nation for political hit job on the President`s political rival.  What should I tell them?

Well, the Trump appointee comes back five hours later, with this like hilarious lawyered press release cover story in a text, which by the way, is the same cover story they`re going to use later on where all becomes public.  "Well, I believe are incorrect about President Trump`s intentions.  The President has been crystal clear no quid pro quos of any kind.  Presidents is trying to evaluate whether Ukraine is truly going to adopt the transparency reforms that President Zelensky promised during his campaign.  This is a text."

And then here it comes again.  Here it comes again.  I suggest we stopped the back and forth by text.  I bet you do.  Probably you should stop texting that.  No quid pro quo but stop texting about this.  He says it, no quid pro quo.

Well, OK, then it gets weirder.  You guys following right?  Good.  OK.  So today it gets weirder.  So Republican Senator Ron Johnson from Wisconsin who is a big supporter of the President says he basically can do no wrong.  He says what he did in the driveway.  Yesterday was fine.  Soliciting hit jobs on his political enemies from the authoritarian state of China.

Well, today he tells the Wall Street Journal -- Johnson, that the Trump appointee Sondland, the guy who gave that like lawyered up press release things saying no quid pro quo, that that guy told him Ron Johnson back in August, there is a quid pro quo.

That guy, the guy who put into writing with the lawyered text after he talked to Trump, no, no, no, no, no, no, no, no, no, no, no, no.  He went to Senator Johnson and be like, dude, there`s a quid pro quo.  We`re holding up aid to Ukraine in exchange for this crazy investigation.

And so then Johnson, again, this is all Johnson told this to reporting.  Johnson then goes to Trump and says, is there a quid pro quo?  Are you holding up a day Ukraine so that they investigate the Biden`s?  And Donald Trump -- you cannot make this up.  According to Johnson says no, and who told you that?  Like it`s just a super innocent thing to say.  It`s what you say when you`re innocent.

And then Johnson basically says, again, according to Ron Johnson, according this Republican, like he does not support impeachment.  I don`t even know if he thinks this is all wrong.  So he says to Trump, OK, well, there`s no pro quo.  So I`m going to go -- he`s in contact to the Ukrainians.  He`s says I`m going to go tell them, we`re going to release the aid, right?  Like, what`s the holdup?  And Trump says, don`t do it.

So this is back in August before all these breaks.  The people who are party to this corrupt conspiracy already know it`s wrong.  They already know they`re going to get caught and they are already working on their cover story.  And the cover story is no pro quo even as they all very obviously put a quid pro quo into place.

And then just two days after the career foreign service guy Bill Taylor calls them out in that text.  Am I crazy or are you guys doing something totally corrupt and illegal?  And when he puts that scheme in writing, and it blows up their spot, and you know what happened?  Two days after that, Trump releases him.  Busted.

I want to turn out a member of the House Intelligence Committee investigating the President, the committee that tonight subpoenaed the White House Democratic Congressman Denny Heck.  Congressman, I guess I want to first start with your reaction to the text and the testimony that you heard yesterday in terms of how it builds out your understanding of what happened here.

REP. DENNY HECK (D-WA):  Well, first of all, Chris, can we just declare that the quid pro quo is, frankly, as obvious as the nose on your face?  It`s obvious in the President`s words after discussing the sale of Javelin missiles.  I would like a favor from you though.  It`s clear in Ambassador Taylor`s remarks that it is crazy to withhold security assistance for help in a political campaign.  The quid pro quo is right there on the table staring us all in the face in their words.

But here`s the deal, Chris.  A quid pro quo, is it necessary for it to be a violation of federal law, and we shouldn`t fall into the trap of that debate as obvious as it is.  Soliciting assistance from a foreign government is a violation of federal law, period, full stop.

Furthermore, it is conspiracy to engage in that illegal activity is subject to criminal proceedings, conspiracy to cover it up to obstruct justice is subject to criminal activity.  We don`t even have to get to the fact that this is in fact, a quid pro quo.

HAYES:  So there was news today about there actually being a criminal referral to that point, that the CIA General Counsel kick this over to the Department of Justice, and they`ve been reported before.  But today, the reporting was that when the CIA General Counsel move this complaint to DOJ, it wasn`t a "What do you guys think of it," it was meant to be actually a formal criminal referral, and it looks like DOJ just sort of sat on.

HECK:  Surprise.

HAYES:  Yes, fair enough.

HECK:  DOJ and the Attorney General Barr.

HAYES: You also --

HECK:  Chris, look, the point remains, however, that there is something broader and fundamental and more important than the violation of this particular statue at risk here.  And it is, of course, whether or not we are going to be a nation of the rule of law.  We are we were founded thusly, and this one-term President Donald Trump isn`t going to change that for the United States of America.

HAYES:  So explain this to me.  So you`re on the Intelligence Committee.  It`s one of the three committees that sort of constitutes his oversight triad, right.  If you talk to Kurt Volker, yesterday, you`ve got these texts.  You`ve subpoenaed various people, you`re going to get depositions from the former Ukrainian ambassador, from Sondland -- I think on Tuesday is going to appear for a deposition.

You talk today to the Inspector General.  You subpoenaed the White House.  What is the purpose of all this if you`re telling me right now, like we got them?

HECK:  Well, I think there are additional details of the narrative to fill in.  So for example, in particular, I`m looking forward, frankly, to hearing from Ambassador Yovanovitch, the former Ambassador of Ukraine who seemingly was sacked because she wouldn`t go along with the deal.

This sorted chapter in American history is going to be clearly entitled shakedown and cover-up.  And part of the cover-up the stonewalling.  But they can only stonewall so much so far.  Chris, remember that there was somebody within the circle that knew about this that shared that information with the ultimate complainant.  There are Americans of patriotic impulse involved in this, and they will assure that the truth will out.

HAYES:  Final question.  You subpoenaed the White House today.  The Oversight Committee subpoenaed the White House which is a, you know, doesn`t happen very often.  Obviously, they`re going to try to fight you on this.  Are you confident that you have the better part of this legal argument?

HECK:  On the subpoena?

HAYES:  Yes.

HECK:  This is a formal impeachment inquiry.  This is an inherent power in Article One of the United States Constitution.  It is not and I don`t mean to be snarky, it`s not at all clear to me that the President of the United States has ever read the United States Constitution.  But it is clear that we have this power and authority.  It is the job that people that send us here expect us to do.

The constitutional remedy to engage in an impeachment inquiry or if needs be, articles of impeachment and impeachment vote are enshrined in the United States Constitution.  That`s the document we all swear to uphold.

HAYES:  All right, Congressman Denny Heck, thank you very much for your time.

HECK:  Thank you.

HAYES:  Still to come, Republicans are mostly standing by President Trump after one week of impeachment but is the tide starting to turn?  We`ll talk about that next.

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HAYES:  One of the big questions that`s been hanging around impeachment all year is how is it going to play politically?  Now the national polling shows it is already moved swiftly and the direction of plurality or even majority support for an impeachment inquiry, even in some polls, support for impeachment and removal of President which is startling.

But the real question the politics of this involves two groups of people, House Democrats in contested seats who the Washington Post reporter are getting pretty good boys at their town halls, and Republican senators up in 2020 in states where the President`s approval rating is underwater.

One such Republican who wasn`t really even on anybody`s radar is having a contested fight ahead of her is Iowa Senator Joni Ernst.  And just look at what she faced yesterday from a constituent in the city of Templeton, Iowa.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Just this morning, we have President Trump saying, we need to talk to Xi Jinping and have, you know, Presidency Xi and have him investigate Joe Biden.  How is that helping anybody?  Where is the line?  You didn`t pledge an oath to the president, you pledged it to our country, you pledged it to our Constitution.  When are you guys going to start standing up and actually be there for us?

SEN. JONI ERNST (R-IA):  OK.  So President Trump -- I can say yay, or nay, or whatever, the President is going to say what the President is going to do.  I can`t speak for him.  I`ll just say that I can`t speak for him.

UNIDENTIFIED FEMALE:  I know you can`t speak for him but you can speak for yourself.

ERNST:  And I do.  Whistleblowers should be protected.  Please let folks out there know.

UNIDENTIFIED FEMALE:  And our President shouldn`t be threatening them and he also should not be encouraging other countries to investigate his political rivals?

ERNST:  I would say to that, corruption no matter where it is, should be ferreted out.

(END VIDEO CLIP)

HAYES:  I`m joined now by MSNBC Political Analyst Carlos Curbelo.  He`s a former Republican Congressman from Florida, lost his race for reelection last year.  Congressman, it`s good to have you.  You were pretty outspoken yesterday after the President was on the driveway saying, I want China and Ukraine and I guess whoever else to go after the Biden`s.  You said look, this is kind of a make or break moment.  What is your read on what Republicans should be saying here?

CARLOS CURBELO, MSNBC POLITICAL ANALYST:  Chris, let`s set impeachment aside for a second.  There`s a simple pass-fail test for Republicans here.  Is the President`s conduct acceptable or not?  And a lot of those voters and suburban districts that swept Democrats into power in the House last year are looking for how Republicans are answering that question.  And up till now, very few are passing the test, very few are stating the obvious that whether he should be impeached or not, it`s unacceptable.

It`s wrong for any president of the United States to invite a foreign government to participate in any way in our electoral process.  It`s wrong for the President of the United States to use the power of the state and turn it against any individual citizen, especially someone running for public office and who might be running against him in November of next year.

So I think a lot of Republicans really need to start taking this seriously.  I know that privately they express discontent, discomfort, rejection, for a lot of the President`s conduct.  I think it`s time for them to start speaking up and making sure their voters in the country know what it is they`re really thinking inside, how it is that they`re reacting to this very difficult situation in our country.

HAYES:  Yes.  So I think that distinction is important.  So today, Mitt Romney, the senator from Utah, said, "By all appearances, the President`s brazen and unprecedented appeal to China and to Ukraine to investigate Joe Biden is wrong and appalling."

Now notice, again, he`s not weighing in there on impeachment.  The point you made, there is an important one.  You know, if you go back and look at the Democrats with Bill Clinton, a lot of Democrats -- I mean, very -- there were no Democrats as far as I know who were like, it was perfect, it was great what Bill Clinton did.  That`s totally fine.

Like -- they were like, no, that`s not OK.  He just shouldn`t be impeached.  It seems to me Republicans have a choice here if they`re not going to support impeachment, which I don`t think they will.  Your option, which is, this is not OK but not impeachable.  And then John Cornyn today basically saying it`s all fine.  This is totally fine.  Whatever the President wants or does.

He even said this today, John Cornyn, "Now the Trump Justice Department is investigating foreign government influence, V.P. Biden conflicts of interest in possible corruption."  Unless he knows something we don`t know that the Department of Justice is going after the Biden`s.  It`s like this is dangerous territory.

CURBELO:  And, Chris, that`s a big mistake, because look at the politics.  Sure the voters are moving toward impeachment, but it`s still a divisive issue.  There`s no clear majority of Americans supporting impeachment, at least not yet.  But Americans do expect their leaders to be truthful.

And look, it`s not easy.  I get it.  President Trump is very powerful in Republican primaries.  And President Trump, and I know this from personal experience, is someone who demands absolute loyalty.  Even what Senators Grassley and Ernst have done in Iowa saying that they support the whistleblower, that the whistleblower should be protected, that the laws are designed to protect whistleblowers, the President does not look fondly upon those types of comments.  And he looks to get back at anyone who even steps slightly out of line.

So I get it.  It`s not easy politically.  But there`s a lot more at stake here than anyone`s seat in the House or seat in the Senate.  Our institutions are at stake here.  And my Republican friends really need to wake up to that.

HAYES:  I agree with that.  The last little thing, though, is the politics here for Susan Collins in Maine, and Corey Gardner in Colorado, and Martha McSally in Arizona, all states that the President is upside down on approval, it seems to me like I get that they`re worried about primary but I don`t think it`s a great look for them to be running around saying like this is totally fine, right?

CURBELO:  It`s a squeeze play, right?

HAYES:  Yes.

CURBELO:  You need a unified base in order to win but you also need swing voters.  And you kind of have to decide who you`re going to upset.  And my advice is -- unsolicited, by the way, that rather than worrying about who you`re going to upset, just say the truth.

HAYES:  Yes.

CURBELO:  Look, I lost the race.  There`s life after politics.  It`s OK.

HAYES:  Hey, you`re on -- you`re on ALL IN on Friday night.  I mean, it doesn`t get any better.

CURBELO:  That`s right.  I think I won.

HAYES:  All right, Carlos Curbelo, thank you very much for your time.  I appreciate it.  Don`t go anywhere.  The Friday night conversation is next.

(COMMERCIAL BREAK)

HAYES:  The White House has made it clear they`re going to fight this impeachment inquiry tooth and nail, including the production of any documents or witnesses.  They`re trying to make a legal argument now they don`t need to comply until House Speaker Nancy Pelosi holds a full House vote first.  That`s not anywhere in the constitution, they`re just making that up.  Although it is the case, to be fair, the last two impeachment inquiries began, in part, with a full House vote. 

All of this just highlights the fact that each presidential impeachment is its own thing with no charted path.  There`s basically nothing in the constitution about how to actually go about doing it.  And we`ve only done it three times in our nation`s history.  And we`re out past the frontier.

So, I thought it would be good to talk to three people who are part of the investigation impeachment inquiry of Richard Nixon, a former assistant Watergate special prosecutor, now an MSNBC legal analyst Jill Wine-Banks, also former assistant Watergate special prosecutor former assistant secretary to the Treasury Richard Davis, and a former member of the House judiciary committee that passed three articles of impeachment against Richard Nixon, former Democratic congresswoman from New York Elizabeth Holtzman.  Great to have you guys here.

Maybe I`ll start with you as a member of congress, so we got word tonight that they have subpoenaed the White House -- Mick Mulvaney, Vice President Pence, documents.  This is a big deal  constitutionally.  What does it mean?  Where does it go?  And who resolves it?

ELIZABETH HOLTZMAN, (D) FORMER CONGRESSWOMAN:  Well, we went through that in the Nixon impeachment process.  And by the way, we started the impeachment process before there was a House vote during the  Nixon impeachment.  We started actually reading the constitution and trying to figure out what a high crime and misdemeanor was way before we had a House authorization.

HAYES:  Oh, so you were out -- the vote came later.  Yeah, that`s a good point.

HOLTZMAN:  When we started, we had staff -- that`s just nonsense what the administration is saying.  It`s not historical.

Secondly, the administration totally stonewalled us.  They didn`t totally stonewall.  Nixon got up and said, oh, look at all the documents I`m turning over.  He had these three ring binders.  He said I`ve given everything, but of course they were doctored transcripts.  And when we compared the transcripts against the actual tapes there were not just transcripts against the actual tapes there were not just expletives deleted, but there were other important things deleted, things added.  They were totally doctored. 

And that was my view about the transcript we saw.  I mean, you can`t trust it.

HAYES:  Right.  But well the transcript we saw -- I mean, recalls, right, like infamously the Nixon tapes have this missing section.  The transcript we saw seems to have these ellipses.  It doesn`t seem to time out.  What would be the process for going about -- Rich, what would be the process for going about to get the full thing?

RICHARD DAVIS, FORMER ASSISTANT WATERGATE SPECIAL PROSECUTOR:  Well, obviously, that`s what they`re going to subpoena because -- well, normally you would say, well, there`s a great executive privilege argument, this is after all presidential conversation.  But they`ve already released the summary or the summary transcript so I think that that is not going to be a strong argument here.

But in the end of the day, what we`ve seen from this White House is their position is they don`t really care, they`ll just say no.  And as Liz said, it ultimately -- Watergate, Article 3, the third article, was failure to respond to subpoenas, a series of subpoenas, and that`s what happened then.  And we`ll see whether that`s what happens now or this gets resolved by the courts.

HAYES:  So, there`s the courts -- I mean, what`s really fascinating to me is that this is kind of fascinating legal education, because we`re in such a weird space constitutionally.  Like there`s this nebulous about who`s going to adjudicate this and who -- which branch has privacy. 

And one of the things that`s fascinating to me, Jill, is that they are clearly in a stronger position having just announced an impeachment inquiry.  Like already that has made people show up and documents have been turned over.  There is something about the invocation o that, that it seems to me that has its own kind of force.

JILL WINE-BANKS, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR:  Well, it`s not just an imagination that you have, because the courts have made it clear that when there`s a judicial proceeding pending you have more powers, and an impeachment is a judicial proceeding.  The subpoena in our case of course was for a grand jury.  And ultimately, the one that went to the Supreme Court was for trial, it wasn`t -- the grand jury had already indicted, and we then subpoenaed more tapes.

And you`re right, the ellipses that are in the sort of in the summary...

HAYES:  The call notes...

HOLTZMAN:  Yeah, the call notes are now being called the Rosemary moment of this scandal, or the 18-minute gap.  And so I`m volunteering to help. 

HAYES:  You would be willing to go in there.

(APPLAUSE)

DAVIS:  I mean, the subpoena, you know, if it comes out, you know, the issue whether it`s a judicial proceeding might be an issue, because somebody would say, well, it`s an impeachment, it`s not judicial; however, what`s been stripped away by having an impeachment inquiry is any argument there`s no legislative purpose, which is one of the things they`ve been saying...

HAYES:  And they`ve been using that in courts to stonewall them on...

DAVIS:  That`s what one of their major arguments has been no legislative purpose.  Well, the purpose here is to investigate whether there`s been abuse of power.  And plainly they don`t have any of that kind of defense.

HAYES:  That`s an important thing, yeah.,

HOLTZMAN:  Yeah, the other thing is Chairman Rodino during the Nixon impeachment said we`re not going to the courts because the impeachment power is solely in the hands of congress.  And the courts can`t determine what congress decides is important.

So there are two things I want to say about that.  Number one is that if congress decides that means the American people in the end, because they support this process, then there will be an impeachment article on this ground.  And the second thing is that I think Adam Schiff is being really smart, and the other committee chairs are being really smart, about how they`re handling these subpoenas because what they`re saying to the administration is if you don`t turn over those subpoenas we`re going to draw an adverse influence -- inference, sorry.  And we`re going to decide that basically you`ve got something to cover up and hide...

HAYES:  Right, because there`s no external...

HOLTZMAN:  That`s really tough.

HAYES:  There`s no -- I mean, that`s a really important point.  This is constitutional granted to congress as their Article 1 power, right, so their whole point is there`s not some out there judicial proceeding, there`s no like pleading the fifth, like we`re the ones sitting in judgment, right, so if you obstruct us, we`re going to come to the worst possible conclusion about the documents you haven`t turned over, and that`s our right as congress.

WINE-BANKS:  You know, legally that`s of course permissible in any court.  But let`s face it, people would normally just draw that conclusion, even with the Fifth Amendment, you know, you obstructed, you shouldn`t draw an adverse inference, but people do because they know you`re hiding  something if you won`t come forward with it.

DAVIS:  I`d like to go back to this issue of whether you need a House resolutions.  One of the reasons they had House resolutions in `74 and in the Clinton impeachment was because the nature of the House rules as they then existed.  Since that time, the House rules and committee rules have been  changed.  They have much greater power to issue subpoenas just by the chair, and they have much greater power to have staff depositions then they had.

So in those cases one of the purposes of the resolution was to increase the power beyond what the House had delegated through rules.  It`s not linked to the ability to get information.

HAYES:  In fact, in the subpoena document letter that was issued today by the oversight committees, which I read, they basically make that argument.  They say this is pursuant to our impeachment abilities, but we don`t actually even need that, because the House rules that the congress passed, the House passed in the beginning -- here`s my question about this moment for you sort in a historical perspective, I think there is this sense that everyone has that like we know what`s going to happen, the House will impeach him and the Senate will acquit, and he`ll rail about whatever. 

I feel like things are much more dynamic than that.  I feel that we genuinely don`t know what`s going to happen.  And I`m curious, having lived through Watergate, if you have that feeling too?

HOLTZMAN:  Absolutely.  When we started the impeachment process after the Saturday Night Massacre and President Nixon ordered the firing of the special prosecutor, the American people said hey, wait a minute, we`re not a Banana Republic, wait a minute congress you do something.

When we started it, we didn`t know what an impeachment was, we didn`t even know what a high crime and misdemeanor was, we didn`t have a vote count in the House of Representatives.  We didn`t have a vote count on the committee.  Forget the Senate, we didn`t even know what the case was.  When we started, we started from scratch.  But we built a case.  And did it in a fair way.  We built it based on solid evidence and the American people were with us.

And so anyone who would have predicted at that time never be an impeachment, they were wrong.  You can`t predict this if the congress acts in a responsible, fair and honorable way, the American people will be with them.

HAYES:  Well, we`re going to see what happens.  Jill Wine-Banks, Richard Davis and Elizabeth Holtzman, thank you all for being here.

Coming up, Masha Gessen is here.  Don`t go away.

(COMMERCIAL BREAK)

HAYES:  So the reason that all of what we`re seeing right now with the president inveighing about corruption and investigations, the reason it strikes so hard at the heart of the rule of law is that the power of the state to investigate and then prosecute people is basically where the entire molten core of the rule of law is most dangerously powerful.  If that power is misused, it spells the end of freedom particularly if it`s misused against political foes or opposition or dissidents.

That is the way they do it in a lot of countries that are technically legal regimes.  I mean, I`;m not talking about North Korea, but a place like Saudi Arabia or Russia, it`s not like the state security forces show up at your door at night because you`re a dissident and you`re kidnapped, although that does happen sometimes and in some places, but what`s much more likely is, oh, now you`re being investigated and prosecuted for corruption or some other crime.

I mean, in Saudi Arabia, let`s remember, Crown Prince Mohammed bin Salman consolidated power by literally rounding up his political enemies, sticking them in the Ritz-Carlton and getting them to plead guilty to corruption charges.  And the credulous American press was like, oh, he`s cracking down on corruption.  Look at him.

And it`s the same thing they`ve done in Russia for years, the time Vladimir Putin prosecuted a prominent oligarch for corruption, but what was really going on was that the oligarch was funding parties opposing Putin.

And now Donald Trump is running around yelling it`s about corruption.  But what he is very clearly doing is using corruption as a cover to destroy his political opponents, and that is one of the most tried and true plays in the strong man play book.

I thought today we would talk to someone who literally watched this happen in person this week.  She wrote, quote, "the word investigation now means resistance at one extreme and digging up dirt on another, such a disparity doesn`t bode well for words that are or ought to be related to investigation, such as trial, testimony or truth."

And two days after Trump was elected, she published this piece in The New York Review of  Books about the ways in which institutions can be hollowed out from the inside by autocratic leaders.  She`s the author of "The Future is History: How Totalitarianism Reclaimed Russia," Masha Gessen joins me now.

(APPLAUSE)

HAYES:  Thank you so much.

MASHA GESSEN, AUTHOR:  Thank you for having me.

HAYES:  I`ve been reading you over the last few weeks with sort of special care and attention, because, and I want you to tell me if I`m right or wrong, this idea of sort of like oh, my political opponent`s corrupt and I`m going to order an investigation has very unnerving echoes in the kind of strong man states we`ve seen across the world.

GESSEN:  Absolutely.  Although, you know, I think that it`s important to understand about Trump, and actually about other autocrats, or Trump is an aspiring autocrat, is they actually believe that the entire world is corrupt.

HAYES:  Yes.  To their core.

GESSEN:  To their core, I mean just as corrupt as they are.  They can`t imagine it`s any different than what they have experienced of themselves. 

So, you know, everything else loses meaning.  Investigation becomes a weapon.

HAYES:  Right, because there`s no such thing as some non-corrupt people and some corrupt people and investigators who diligently adjudicate, it`s all just this Hobbesian struggle for power.

GESSEN:  Right, it`s the war of all against all.  And if you have a bigger weapon and bigger investigation then, you know, the other person will have bigger corruption.

HAYES:  In Russia specifically, like we have seen opposition parties, people that have tried to organize against Vladimir Putin or contest his power, find themselves on the wrong end of an investigation or criminal prosecution.  I mean that is fairly common thing, right?

GESSEN:  It`s an extremely common thing, and it`s a thing that so far has worked  very well for Putin and again for other autocrats, because it seems -- it`s a credible cover for political prosecution, right?  Who is going to stand up for somebody who`s corrupt?  And so we don`t actually know how many people are in prison in Russia for so-called economic crimes, you know, people who have been accused of fraud, people who have been accused of embezzlement whether by the state or by their business rivals who had better access to power than they did.

HAYES:  The other thing that you`ve said, and I think this is such an important point is that the cynicism sort of draws everyone down to the same cynical place so that because Trump is so cynical, and I think if you gave him a lie detector test he really does think there was a conspiracy against him in 2016, even though it makes no sense, right.  I mean, I think he`d probably pass that lie detector test, but he then -- that cynicism then is like seeping out to the entire Republican Party, they`re like, oh, everything is just corrupt and you just do what you can with whatever power you have.

GESSEN:  Well, by this point this is their observable reality, right?  And I think that -- I mean, I also think it`s important to understand about Trump`s sort of persecution complex, that there is an undercurrent of his understanding of the illegitimacy of the whole project there, right.  It`s like, of course everybody wants to get rid of me, because I shouldn`t be here, right.

HAYES:  That`s a good point, yeah.

GESSEN:  That makes perfect sense.

(APPLAUSE)

HAYES:  You wrote this piece I think it was two days after Trump`s election.  And I should say you`re an incredible author, and I`ve read several of your books and the Putin biography, particularly, I think is a really important thing for people to read, a man with no face, right.

GESSEN:  "A man without a face," yes, thank you very much.

HAYES:  You wrote this piece two days after about sort of how to survive an autocracy.  And here are some of the rules that you wrote:  "believe the autocrat.  Do not be taken in by small signs of normality.  Institutions will not save you.  Be outraged.  Don`t make compromises.  Remember the future."

Where are we now compared to where you thought we might be?

GESSEN:  Oh, you know, it is wonderful -- and part of the reason I wrote that piece right after the election -- actually I think I wrote it the election night, right, and then it came out a couple of days later -- was that I knew from experience that that moment of clarity that I was experiencing wasn`t going to last.  So, you know, we`re all in this constant state of high anxiety and unreality and the sort of -- you know, this is what seems to be fact based on this is what he is saying, and how do I reconcile this. 

I mean, I think this is an impossible state to inhabit.  So don`t look at me as someone who has a clear view of the whole thing.

HAYES:  You are my guru and prophet, please.

GESSEN:  While everyone else is like, you know, struggling to understand.  I mean, you know we`re all in the bog of the whole thing, but I think things are bad.  I think that, you know, I think our institutions proved even weaker than I feared. And I think actually the story of the whistle- blower is incredibly indicative of this, right, because -- and I like last night I speed read this wonderful new book that`s coming out later this month called "The Crisis of Conscience," which is the history of whistle- blowing, incredibly timely.  And so I was reading it and I thought, oh, this whistle-blower is really different from other whistle-blowers, because usually whistle-blowers disclose something, bring something to public attention that we didn`t realize was there, like oh my god, pharmaceutical companies fake their trials.  Oh my god, the Pentagon is engaged in assigning corrupt contracts.  And everybody gasps and there are consequences.

What this whistle-blower brought to public attention is something that had been in plain view for months.  The Times had been on this story, and I don`t mean just the general pattern of things, I mean the actual story.

HAYES:  I mean, what blew my mind to this point was that when it broke and then someone said, oh, someone had reported the aid had been held up.

GESSEN:  Right.

HAYES:  And I was like, oh, really.  And then I like went back and I was like, oh, yeah, that was a thing.  That was -- the aid had been held up, Giuliani`s meeting, I`m going to meddle.  I mean, and you go back and there`s this amazing public record.

GESSEN:  Right.  And so there`s something that has happened to us that we look at that, and by us we mean also journalists right, primarily journalists, we`re responsible for this.  We look at this and we`re look, oh, well this is how this administration rolls.  And we report it.

And it took somebody who went through institutional channels, who went through the actual legal procedure that is designed for this, to say this is not normal, which brings me to my second point which is that it took two-and-a-half years for somebody to do that.

(APPLAUSE)

HAYES:  I actually -- to that point, that is the thing that I had been obsessed with.  And it was sort of part of what the opening monologue was is, there were a lot of people involved in this, and there were a lot of people involved in it who knew it was wrong.  I mean, they know it.  Everything we`re seeing about the way they`re acting or what the texts are saying or what they`re saying, they`re like hinky (ph).  I mean, the staff locking down the phone call, people are like we -- this is not right.  And that there was -- I mean there was this one whistle-blower, but there are a lot of people who seem to go along with it.

GESSEN:  And also this thing -- on the one hand they know it`s wrong, on the other hand it`s not anomalous.

HAYES:  Right.

GESSEN:  This is part of a pattern in this administration.  We have now learned that a lot of phone calls were locked down like this, right.  This is...

HAYES:  I would like to see them all, frankly.

GESSEN:  But on the larger, you know, there has been so much leaking from this White House, but the leaking, and this is something I`ve been thinking about for the last couple of days, the leaking has had a  normalizing effect, right.  They leak.  We get used to the fact that this is how it works.

HAYES:  And the leaking makes us us think we know everything.  This is the other thing that I found, they leak so much you think well we must know everything that is going on in the White House, because they leak like a sieve, and the answer is like, no, we don`t actually know everything that goes on in the White House.

GESSEN:  That`s a really interesting point.

Masha Gessen, who is an incredible writer and a person to listen to in this day and age, thank you so much for being here.

GESSEN:  Thank you very much.

(APPLAUSE)

HAYES:  We have much more, much more, coming up right after this.

(COMMERCIAL BREAK)

HAYES:  Thank you for joining us for the triumphant return of our live audience shows, that goes to both everyone here with me in Rockefeller Center to you at home.  We`re going to be back here again for the next couple of Friday.  Tickets for those shows are sadly already gone. 

But if you are watching this thinking, man, that`s really fun to be in a place where Chris is doing his thing, come to Los Angeles, I`ll be doing a live recording of my  podcast Why is This Happening in the beautiful theater at the Ace Hotel with award-winning writer-director Adam McKay and author Omar El Akkad. 

And that is happening Monday, October 21.  Tickets available now.  Go to our Web site MSNBC.com/withpodtour.  But do it fast because "THE RACHEL MADDOW SHOW" starts right now. 

Good evening, Rachel.

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