The trial of Roger Stone. TRANSCRIPT: 11/8/19, All In w/ Chris Hayes.

Guests: Michael McFaul, Nancy Soderberg, Emily Bazelon

CHRIS MATTHEWS, MSNBC HOST:  We love this country.  That`s why we care, why we hope, and why we will through sickness and health, through sorrow, and yes, national disgrace, one day March 4th to save it.

And that`s HARDBALL for now.  "ALL IN" with Chris Hayes starts now.

(BEGIN VIDEO CLIP)

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

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  All you have to do is read the transcript.

HAYES:  The damning transcripts keep coming.  Tonight, as we learn even more about the Trump plot to extort Ukraine.

TRUMP:  All you have to do is read the transcript.

HAYES:  Why the President is undeniably correct about reading the transcript.

TRUMP:  Reading the transcript.  You`ll see how perfect it was.

HAYES:  Then, Steve Bannon testifies for the prosecution in the wild Roger Stone trial.

UNIDENTIFIED MALE:  I don`t know nothing about that.

HAYES:  Emily Bazelon inside a Trump White House at war with Congress.  And Steve Kornacki on the actual takeaways from the first election in the impeachment era.

TRUMP:  You can`t let that happen to me.

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

(END VIDEO CLIP)

HAYES:  Hello.  Hey, everybody.  How are you doing?  Welcome back.  Welcome everybody to 30 Rock.  Thank you.  It`s great to have you here.  It`s great to be back in our 6A Studios.  It was a crazy, crazy week.  We learned the impeachment hearings of the President, President Donald J. Trump will be televised next week.

One thing we learned this week, we also got hundreds and hundreds of pages of impeachment deposition transcripts released including two key ones today.  I`m going to be talking about those in just a bit.  We also have this week the first national election in the impeachment era.  We`ll talk about that with Steve Kornacki.  And the White House wants the Supreme Court to rule on the President`s tax returns.  We just found out that today.  We`re going to get to that as well.

But I think it`s useful to remember this entire scandal starts and revolves around the notes of President Trump`s own call with the Ukrainian President Zelensky, right?  It`s a call that he said was perfect, and that`s the call that prompts the whistleblower complaint and that in turn gets the House to formally announce its impeachment inquiry.  And when people start clamoring to know, OK, what did he do in this call?  What`s the deal with the call, the President releases the call notes and everyone gets to see with their own eyes what transpired.

And so now, the President is attempting in a clever or dumb or just sort of feral animal instinct for survival kind of ways.  I can`t -- I can`t really tell which one it is.  But he`s attempting to turn his biggest weakness into a strength.  And he is telling anyone that will listen to pay lots of attention to the single most incriminating piece of evidence against him.

So those are the call notes of his call with Ukrainian president.  Trump calls the notes a transcript.  That said, we know it`s not a complete transcript and we`re going to get to that in just a bit.  But what he`s trying to do here is this sort of same transparency gambit that worked for him in the past. 

Remember, when he said, Russia if you`re listening, if you can get access to Hillary Clinton`s e-mails you`ll be rewarded mightily.  That was an aid of solicitation of foreign intervention in an American election.  And it was an effective one.  As we learned from the Mueller report, the Russians tried to hack a server at Hillary Clinton`s that night.

But he just did it in front of the cameras, right?  And the idea is that if I do it in front of the cameras, he did it not improper or illegal.  And so now, the most recent iteration of that is the slogan read the transcript.  Here is the President at a rally in Kentucky with a bunch of people who just randomly just had the same organic idea just to print up and then we`re read the transcript t-shirts and then just stand behind the president.

I`m kidding.  Of course, you can -- you can actually buy them on his Web site.  It`s a limited edition t-shirt.  They are not infinite which makes sense.  It has this marketing copy, if you just read the transcript, it`s clear President Trump did nothing wrong.  The transcript speaks for itself.  Don`t let Shifty Schiff and the rest of the Democrats lie about what`s in it.

So the President is banking on the idea if he says read the transcript what he can do by saying that is wash the devastatingly incriminating nature of the call itself from people`s minds, right?  And here`s the thing.  This stuff does kind of work.  I saw this poll I think this week that that shows that it`s pretty remarkable.  Only 40 percent of Republicans, only 40 percent, a minority think Trump specifically mentions the Biden`s in the call.

He does.  We`ll get to that.  But he does mention the Biden`s.  And the conceit of the President`s approach here is basically he tells people to read the transcript.  If he releases the transcript, if he talks about how perfect the phone call is, then the only way it could have been wrong is if the President himself is stupid enough to extort a foreign country and do something wildly incriminating and impeachable when he knew other people were listening.

In fact, this is an argument that he is he`s made and is making explicitly.  He tweeted this.  "Is anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially heavily populated call?"

Could the President be so dumb as to commit a flagrant abuse of power, extort a foreign country while a bunch of people were listening?  The answer is yes.  He could be.  So could he also be so dumb to tell everyone to read a transcript that incriminates him?  I don`t know but let`s read the transcript, OK.

Remember, the call starts with Trump laying the groundwork with the cranium president for the coercive ask that he`s going to get to saying that the relationship between the two countries has not been reciprocal.  All right, this is what he says.  "The United States has been very, very good to Ukraine.  I wouldn`t say that it`s reciprocal necessarily."

Now, keep in mind, almost 17,000 square miles of Ukraine is currently occupied by Russia.  They`ve already lost Crimea.  There is an actual shooting war raging.  Since the start of the year, at least 72 Ukrainian soldiers have been killed in Eastern Ukraine.  And the Ukrainians have been waiting on $400 million of American aid, assistance which is ten percent of their military budget.  All right, this is not pennies.

So the Ukrainian president says, we`re almost ready to buy more weapons from the United States for defense purposes.  And the President responds, I would like you to do us a favor though.  I would like you to do us a favor though.  And he goes on.  There`s a lot of talk about Biden`s son, that Biden stop the prosecution.  A lot of people want to find out about that.  So whatever you can do.

Whatever you can do, manufacture dirt on my political rival who I just named.  And that`s the four-alarm fire moment, right?  That`s the moment where holy crap, that might have been illegal, and the phone call reverberates throughout the entire government.  We know from the impeachment transcript depositions that have been released throughout the week including today people are freaked out.

Former U.S. ambassador to Ukraine Marie Yovanovitch says she was dismayed the President made those requests.  Deputy Assistant Secretary George Kent says he was told that the conversation went into the most extreme narratives, one way of putting it.  Fiona Hill, she`s a former senior director for National Security Council.  We got her transcript today.

She said reading the call notes, raised an awful lot of concerns.  She said it was her worst fears and nightmares that it was an effort to subvert the national security process and turn a White House meeting, that`s a meeting with President Trump into a dangled asset.

None of those people are on the call, right?  So they`re hearing about it.  But today we`ve got another transcript, and that was of Lieutenant Colonel Alexander Vindman, a guy who oversees Ukraine policy in the National Security Council.  He was on the call.  He said he was concerned with what happened.  He did not think it was proper to demand a foreign government investigating a U.S. citizen.  He said it undermined U.S. national security.

He said the call strayed from the material he himself had prepared.  And he said there was no doubt in his mind the President was asking for a deliverable.  And get this, immediately within an hour, right.  The phone call happens, Vindman is on the phone.  He`s listening.  He`s like, yikes.  And within an hour, he goes to the top lawyer of the National Security Council in his office and for backup, he brings along his twin brother.

This is a real detail.  His identical twin who also works with National Security Council as a lawyer handling ethics issues.  That is them, by the way, both of them.  I don`t know which is which.  So not only did he raise alarms with the lawyer, Vindman also notices as he`s going through the document that`s circulating that the rough transcript was not correct, actually.  So he made the substantive edits to the call notes to correct them because he wants the record to be correct.  And those edits were not taken which hadn`t happened before.  He said it was totally abnormal.

And then on top of that, they then locked down the transcript in this super-secret classified server that almost no one could access.  And Lieutenant Colonel Vindman was concerned about the phone call.  He registered those concerns up the chain of command.  He and a bunch of his other colleagues recognized just how awful and unperfect the call was at that time.  And the White House acts to cover it up.

The thing is, the plot does not originate on July 25th, right, when the phone call takes place.  All of this groundwork was laid well before as we`ve learned through all this testimony.  But the people who laid the groundwork at least had the good sense to act kind of sketchy about it, OK.

They understood you can`t just say it.  You got to be a little unclear, a little ambiguous, you got to sort of operate in the shadows, hints and implications, wink-wink, nudge-nudge, do us a favor, OK, we`ll talk about it, maybe that can happen, can you get the deliverables.  Everyone who`s doing this, they`re running a shadow foreign policy.  They recognize what they`re doing is wrong and corrupt.

And then the man at the center of the conspiracy gets on the call and just out now openly extorts the Ukrainian president to manufacture dirt on his political opponent.  He does the one thing, the one thing that everyone`s worried he will do and that no one else is dumb enough to do, right?  Because who would be dumb enough to explicitly extort the Ukrainian government for dirt on the President`s political rival when a bunch of people are listening?  Well, there is one person in government who is dumb enough to do it.

(BEGIN VIDEO CLIP)

TRUMP:  My phone call was perfect.  It was totally appropriate.

UNIDENTIFIED MALE:  I have a favor though.

TRUMP:  Read the transcript.  Read the transcript.  Read the transcript. All they have to do is read the transcript.

And if you want to read the transcript, you see how perfect it was.

(END VIDEO CLIP)

HAYES:  So the President says you should do it.  I say you should do it.  We are all in agreement.  In this contentious time where we`re divided, we are an agreement about this one thing.  So if you out there, if you like the President or you don`t like the president or you don`t know whether the president extorted the president of Ukraine, yes, by all means, everyone listening to my voice or the President`s voice, please for the love of God, read the transcript.

For more on what we`ve been learning from the depositions this week, I`m joined by Michael McFaul former Ambassador to Russia and Ambassador Nancy Soderberg former Deputy Assistant at the NSC.

Ambassador Soderberg, let me talk to you first.  One thing that comes out in these transcripts is that the folks that are piecing this together whether it`s Fiona Hill who`s at the NSC were used to work or its Lieutenant Colonel Vindman or others, they`re not getting the full story because someone is hiding the ball from them because the people that are running the rogue operation are wise enough to understand that what they are trying to do is probably illicit and inappropriate.  You get that sense from what we learned?

NANCY SODERBERG, FORMER DEPUTY ASSISTANT, NSC:  That`s exactly what happened.  The career foreign service officers were shoved aside.  The National Security Council process which would have the experts make a recommendation to the President and then the President would agree to it and the career people follow it out.  Sometimes there`s a political appointee involved in this.  But President shoved that aside and had Rudy Giuliani and some Russian oligarchs and Ukrainian corrupt goons who are actually now under indictment in the U.S. justice system try and pull a fast one on the U.S. government and extort the President of Ukraine.

And the difference here for the President is he`s always been able to control his narrative.  He`s brilliant at a showman and of obfuscating what really happened.  And it`s always worked for him.  And what he`s finally up against is career bureaucrats who are patriots telling the truth.

And he is not going to be able to run away from this truth and all of those around him are going to have to make a decision.  Are they going to have to justify it was OK to hold up aid to the Ukrainians for the President`s gain or are they going to come out and tell the truth and say no I`m actually not on board with that.

Mick Mulvaney, Giuliani, William Barr, what`s he doing now, that all of these people need to realize the truth is something they cannot run away from anymore.

HAYES:  Yes.  Mick Mulvaney, I want to get to in a second.  But Ambassador McFaul, you know, I read a story today about Republicans in the House workshop in their defense of the President.  And one of the things that workshopping just you know --

MICHAEL MCFAUL, FORMER U.S. AMBASSADOR TO RUSSIA:  Hard job.

HAYES:  Yes, it is a hard job.  And I don`t envy them.  And they`re you know, in their in-room, you know, blue sky here running up the flagpole, see what catches wind.  And they`ve decided that maybe one idea is that like everyone was freelancing, that Gordon Sondland, and Giuliani, and Mick Mulvaney with the President.

But you know -- and this was actually a defense that worked for Reagan in Iran Contra, right?  It never actually got to the president in Iran Contra.  But Ronald Reagan never called up the Ayatollah and said we`re going to sell you some weapons so we can go fund the Contras.  Like the phone call makes it impossible for this not to touch the President, right?

MCFAUL:  Yes, Chris.  I`m really glad you`re pivoting back to the transcript because that`s exactly right.  It`s clear as day.  I remember the days before whether he`s going to release that, I kept saying on television programs like yours, there`s no way they`ll ever release a transcript of a presidential conversation.  And then when he did, I was shocked at what was there.

And I don`t think you need to mow anything more than just two things, just the transcript and then the text messages that we know from the three amigos that were released when Kurt Volker testified because those two things show two things that you underscored.  I just want to keep making it simple.

One, this is what they`re asking for, the quid pro quo.  And two, there was a long period that they were doing it both before the call and after the call to try to make this quid pro quo happen.

HAYES:  Ambassador Soderberg, you mentioned Mick Mulvaney.  Today, he was subpoenaed to appear.  About five minutes before his appearance, the White House said he would not be appearing because of absolute immunity.  But the two transcripts released today do implicate him in something key here which is that he was the one who gave the order to uphold the aid.

That, of course, is the thing there dangling over the Ukrainian government.  Do you think he is going to be able to avoid having to account for what he did throughout this entire process?

SODERBERG:  No.  All of these guys are going to have to lawyer up and ultimately decide, are they going to lie for the President of the United States and go to jail or are they going to come around Sondland did the other day and fess up to what exactly happened.

Now, remember, Mick Mulvaney is on the record saying in a press conference, get over it, this is what we do all the time.  So he tried to obfuscate that but I think all of these -- all of these people are going to have to recognize that they are going to have to choose.  Are they going to try and cover for the president or face their own lawyers and what`s going on in Congress the truth we know what happened?

And I think the latest of trying to throw the deputies up under the bus as if they weren`t working for the President of the United States is going to be a 24-hour trial balloon that`s going to rapidly burst.  They`re going to just keep trying it.  And partly because the president is controlling this narrative and it`s changing daily.

So the poor guys who are trying to implement this scheme and whatever the latest President narrative is are you know, it`s like a Keystone Kops circus if it weren`t so serious.  And I think they need to -- they need to start thinking about what is the future for their own careers and what culpability are they going to face personally for participating in this scheme.  And it`s all going to come out and I think you`ll see people starting to peel off.

HAYES:  Ambassador McFaul, another argument that I`ve seen and I saw floated today I think actually by a former U.N. Ambassador Nikki Haley in an interview that she just gave, and I`ve seen other people say, basically, well, it didn`t work, right?  Like in the end, they didn`t get the CNN interview where Zelensky announces a big new investigation and the aide was released.

Now, the aide was only released under Congressional pressure by the whistleblower.  But I guess I wonder as someone who worked as an ambassador who work inside government like how seriously you take the argument that they failed in extorting the Ukrainian president.

MCFAUL:  I worked at the NSC.  You know, I worked three years at the NSC as well.  And I want to underscore this other point you made earlier that we were just talking about.  Remember, when they say that well, it was my aides, we -- I had -- you know, I had no idea who was working for me.  Remember, Mr. Giuliani works directly for the President of the United States.

HAYES:  Right.

MCFAUL:  He likes to emphasize that all the time.  I`m the President`s personal lawyer.  So you can`t blame the deputies, you can`t blame the ambassadors when that person is the main person trying to run this drug deal.  So that`s the first thing.  The second thing is attempted murder is a crime, attempted theft is a crime.  I`m not a lawyer, right?  But I know right from wrong.

This was obviously wrong.  And the fact that they didn`t get what they want doesn`t mean that they weren`t attempting to do so.  And they were doing what -- I teach at Stanford here.  We teach about corruption and the rule of law.  When you use your public office for private gain, that is the fundamental definition of corruption.

HAYES:  Right.  All right, Ambassador Michael McFaul, Ambassador Nancy Soderberg, thank you very much.  It`s great to have you.  Donald Trump`s political fixer and advisor Roger Stone went on trial this week.  It has been extremely enlightening and wildly entertaining.  and Glenn Kirschner has better watching it unfold in the courtroom.  He will join us next.  Don`t go anywhere.

(COMMERCIAL BREAK)

HAYES:  Roger Stone, Roger Stone went on trial this week.  He, of course, is the President`s long time in many decades political adviser, associate, one of history`s legendary political villain sort of self-made image, to be honest.  He`s now facing years in prison for charges of obstructing justice, witness tampering, as well as lying to Congress.  And so far, just a few days in, it does not look great for Roger Stone.

Covering this circus of a trial, former Assistant U.S. Attorney for the District of Columbia and an MSNBC Legal Analyst Glenn Kirschner.  Glenn, it`s great to have you.

GLENN KIRSCHNER, MSNBC LEGAL ANALYST:  Good to be with you, Chris.

HAYES:  So you`ve been watching the trial this week.  Let`s start at the sort of 30,000-foot view.  Stone is being prosecuted for witness tampering and lying.  What`s the government`s case basically?

KIRSCHNER:  So the government`s case is built largely on e-mail traffic and text messages, written communications between Roger Stone and Randy Credico or Roger Stone and Steve Bannon for example.  And basically what those written communications do is they squarely contradict and undercut the testimony that Roger Stone gave to the House Intel Committee.

So as a former career prosecutor, I only wish I had evidence like this at my criminal trials.  It`s a little like shooting fish in a barrel.

HAYES:  Well, so the specific thing here, right, is everyone is sort of wondered about did the Trump campaign have an advanced knowledge of WikiLeaks, right?  Did they know what WikiLeaks had, what they`re planning around it, were they in touch with them?

And there`s a lot of kind of like -- I don`t know what the right word is, like flirting between the two or you know, they`re kind of in touch and there`s these intermediaries that Stone has where he`s trying to get to Assange.  So am I right that Stone basically tells Congress I had nothing to do with WikiLeaks, and the government`s case is like no, no, no.  Here`s what you were trying to do behind everyone`s back.

KIRSCHNER:  Yes, Chris.  And if it went from flirting between the Trump campaign and Julian Assange, and WikiLeaks --

HAYES:  Careful.

KIRSCHNER:  -- after Steve Bannon`s testimony, I think they are probably on the honeymoon at this point.  They`re beyond dating and beyond marriage.  So here`s what Steve Bannon gave everybody today.  And I don`t see -- I don`t think anybody saw it coming.  Steve Bannon testified, you know, among other things, yes, I became the CEO of the Trump campaign in August of 2016.

As CEO, I was basically the number one guy right below the candidate himself.  I was in charge of operations,  And then all of a sudden, he was asked, you know, Roger Stone and you had frequent conversations with Roger Stone about his access to WikiLeaks and Julian Assange.

And all of a sudden, Bannon backed up and said no, I don`t know about that.  The prosecutor said, really?  Let`s go to your grand jury transcript when you testified -- when you testified in the Mueller investigation.

And then the prosecutor did what was textbook impeachment by a prior sworn statement.  He took Bannon threw his statement to the grand jury where he said yes, I had frequent communication with Roger Stone about his access to Julian Assange and WikiLeaks.

And then Chris, the testimony moved forward a few minutes and everything was back on track.  And then came the money question.  That question was, did the Trump campaign have an access point -- that was the -- that was the term that was used, an access point to Julian Assange and WikiLeaks.

And you would have thought Bannon would have learned his lesson by that little impeachment episode a few minutes earlier.  But no, Bannon said -- here was his answer.  I don`t think we had one.  Let`s go to the grand jury -- let`s go to the grand jury transcript.

Sure enough, Bannon testified to the Mueller grand jury something that I don`t think we had heard before.  He said the Trump campaign`s access point to Julian Assange and WikiLeaks was Roger Stone.  Boy, that sort of brought those two things, the Trump campaign and Julian Assange together in way that I don`t think we`ve heard before.

HAYES:  So one of the things that happens in this trial is Roger Stone is kind of a notorious B.S. artist.  I mean, almost I think by own -- by his own telling he tell you that, right?  Like he says a lot of stuff and he`s boastful.  And there`s been all this like very weird lame lies that he keeps getting caught in.

So this is -- at one point, he text Randy Credico, prepare to die, right.  And when he`s asked about it by reporters, he tells Mother Jones that like he was actually telling him like, you know, get your affairs in order because you have terminal prostate cancer.  And then Credico is like, I don`t have terminal prostate cancer.

And it just seems to me that Stone is like playing the role of a gangster, playing the role of like a mobbed-up guy, but in a pretty half-hearted way that is not really fooling anyone.  Is that a fair characterization?

KIRSCHNER:  I think that`s a perfect characterization because at its core, he is on trial for lying to Congress.  His defense to that charge is oh yes, I`m a great big liar but I lie to my friends and associates in my e- mails.  I didn`t really lie to Congress.

You know, when you`re on trial for lying, using the defense that you`re a liar is probably not the strongest defense.

HAYES:  It`s a great, great point.  Although maybe the one honest thing Roger Stone has ever said.  Glenn Kirschner, thank you so much for joining us.

KIRSCHNER:  Thank you, Chris.

HAYES:  When we get -- when we get back, the first election of the impeachment era is in the books happen this week.  There is a lot to learn about how America is voting in this moment.  And Steve Kornacki has the most important results for us.  He will be with us right after this.

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HAYES:  We`re about a year out from the 2020 election.  There are a lot of people who are understandably obsessed with what to expect.  People that are obsessively looking at swing state polls, breaking down head-to-head matchups, trying to figure out mentally what exactly does a white working class voter in Michigan want? What do they want from a presidential candidate?

But this week those people did not need to rely on polls.  This week, we got our very first actual concrete data about politics and voting behavior in the impeachment era.  I wasn`t -- it wasn`t calling people up and asking who they`re going to vote for, it happened on ground and it`s much better data to analyze than polls, I think.

The top line from election night on Tuesday night was there was a lot of good news for Democrats.  They won a governor`s race in deep red Kentucky, they took unified control of the government in Virginia, and Democrats did extremely well in the suburban districts that are seen as crucial to winning elections in 2020. 

There was also data to give people opposed to the current Republican Party a lot of concern. Here to dig into what we learned, one of the best analysts out there MSNBC national correspondent Steve Kornacki.

How are you, buddy?

So, you know, one of the biggest trends I think it`s fair to say in the Trump era since that 2016 election, in special elections, in the mid-terms is the suburbs, right?  One of the -- what is going on in America`s suburbs in the Trump era?

STEVE KORNACKI, MSNBC NATIONAL CORRESPONDENT:  I think a couple of things.  Number one, just in term of opposition to Trump, the energy, the motivation to get out and vote it`s very clearly there, it`s a big story in 2018 mid- terms, it`s a story in Pennsylvania.  This week, there were local elections, county elections in Pennsylvania, suburbs of Philadelphia, Democrats were taking over governments there in some places they hadn`t led in decades, in much more than decades in some places.

So...

HAYES:  So, just to interrupt, those races, those Pennsylvania races, Pennsylvania did not have -- I mean, Virginia is on this weird schedule so there`s a bunch of people on the ballot.  Those were real just local county races that are happening in Pennsylvania, people still coming out.

KORNACKI:  And I think what it reflected  there -- what`s the connection between a county race and President Trump and national politics.  I think what you`re seeing there is the syncing up of national politics with everything down ballot from there, because you have counties there in Southeast Pennsylvania that had been trending towards the Democrats, some places there where Democrats took over -- Hillary Clinton had won by 9 points in one county, but 22 points in the other county.  Still, there was residual Republican strength at the local county level. 

And I think this is one of the stories of the Trump era is everything below president on the ballot is kind of coloring itself in.  Is this a red area, a blue area?  So, I think that`s one of the things you`re seeing there in Pennsylvania and in other places.

HAYES:  There was also some interesting results in the Cincinnati suburbs.

KORNACKI:  Sure, yes.

HAYES:  There are some little counties up there in the sort of northern corner of the state in Kentucky next to Cincinnati across the Ohio river that really helped that Democrat pull off that upset victory.

KORNACKI:  So, this is a really interesting story, because Matt Bevin, the Republican governor, lost for a bunch of reasons, but if he had gotten the normal Republican result in these three countries you`re talking about, and they account for 10 percent of the vote statewide, if he had done what a Republican normally does, he is still the governor.  Instead, the Democrat actually won two of the three counties.

HAYES:  Which is just not really heard of in sort of big races like this.

KORNACKI:  No, absolutely not.  Trump in these counties you`re talking Trump getting in the high 50s to the high 60s.  In these races, Bevin was getting in the 40s into the low to mid-50s, so this was a terrible performance for a Republican there. 

-The question is, did that reflect the same thing we`re talking about in Pennsylvania and nationally, or did that reflect something that was more Bevin specific?  And the question is, there were five other elections in Kentucky this week, five other statewide elections.  The other five Republican candidates got the normal Republican number in those three counties.  So, was that Bevin or was that more the Trump era sort of factor we`re talking about.

 HAYES:  Well, that leads to a, to me, the big question about the suburbs, which is are we seeing that some kind of pendulum, right, or are we seeing a realignment? 

So, if you go back to  2010 and you look at a lot of these suburban areas, they moved hard to the right during those mid-term elections in 2010.  They sent a lot of Republicans, a lot of Republican local legislators, right, a lot of Republicans take over the state houses.  And that`s a kind of motivational question of who is coming out to vote largely in those mid- terms.

But then the other comparison is the way that the solid south used to be Democratic and then they started voting for Republicans at the presidential level and then they moved down the ballot until every last county commissioner is now a Republican as well.

What do you think the evidence says about what we`re seeing in the suburbs being something permanent or something that`s cyclical?

KORNACKI:  Nothing in politics is permanent, but is it...

HAYES:  Well, quasi-permanent, right.

KORNACKI:  Is it longer-term?  I think it`s longer term because we already know it`s longer  term.  We have a longer term trend in American politics, going back decades now where you have -- you talk about  white college educated versus non-college.  And what we`ve seen for decades now is a trend in the Democrats favor among white college-educated voters and a trend decidedly away from the Democrats and towards the Republicans among non-college whites.  So, if you take that and then you add in the fact that suburbs generally in a lot of places are getting more racially, more ethnically diverse, Democratic constituencies for a long time now, those two factors -- I think it`s a long-term trend that doesn`t show any sign of ebbing.

HAYES:  Yes, and that last point is important, too, because the composition of the suburbs is changing is a big part of the story.

The other part of the story to me is turn out, right.  So the good news for Republicans in the Trump era is they really are juicing turn out in these rural red districts and goosing enormous margins, right?  I mean, we did see that particularly in Kentucky.

KORNACKI:  And we saw that in Pennsylvania, by the way.  We had the story of Philadelphia suburbs.  Philadelphia suburbs, go to western Pennsylvania.  There are counties in western Pennsylvania that are the mirror image, that are long-term Democratic counties that flipped to Republican on Tuesday.

And I think there are cautionary notes here for Democrats who look at results like you had this week and extrapolate that and say there is what`s going to happen in 2020.  It`s the words of Chuck Schumer from about two months before the 2016 election, and he was asked about Pennsylvania...

HAYES:  This is the trade he talked about.

KORNACKI:  Clinton -- Trump is big in Pennsylvania, key senate race in Pennsylvania.  He said don`t worry, we`re fine, he said the Democrats.  We will lose -- for one every union Democrat we lose in western Pennsylvania, we gain two suburban Republicans outside Philadelphia.  Math didn`t work out that way.

HAYES:  Right, the trade did not work.  But on election night, at least in the gubernatorial level and in Virginia it has been working.  And it`s generally been working in the suburbs in 2018 in special elections. 

Matt Bevin, if I`m not mistaken, he gets 200,000 more votes than 2015, and he still loses because both sides are so activated.

HAYES:  Massive turn out.  1.4 million people turned out in that Kentucky gubernatorial  election.  The last time around there, the one you`re talking about, 2015, 973,000.  You`re basically having a 50 percent increase in turnout there.  Mid-term turn out last year you`re talking over 115 million people.  Normally you`re getting about 85 million.

In a presidential election you get 130.  I think there`s talk next year, just given these turn out trends we`re seeing, 145, 150 million, easily going to be the highest turnout just by raw numbers, the highest turnout presidential election in our history.

  HAYES:  And you know, my brother worked in campaigns his entire adult life.  And campaigns at the beginning of the campaign, a well run one, will think of what their vote number is, like literally what -- how many votes do we need.  And they`ll do the math.  And that will be what determines the entire field plan, it will determine a lot of their advertising buys, right, they`re trying to figure out like how do we add up enough votes to hit the number we need.

And one of the things that sometimes happens that leads to upsets, Joe Crowley and Alexandria Ocasio-Cortez, is you just get the vote number wrong, right.  You say we need we need this many votes.  Matt Bevin probably said to himself if I get 700,000 votes I`m probably good to go, and he got 700,000 votes.

KORNACKI:  The turnout, it is swamping all expectations.  And it works both ways.

HAYES:  Right, yes,  totally.

KORNACKI:  Because we talk about rural areas, you talk about ex-urban areas, where Republicans are still showing strength, as you see in Pennsylvania there, the big x-factor in all of this is you know that the suburbs, you know that the sort of anti-Trump folks in the suburbs, are determined to get out there in every single election right now and vote against Republicans, but put Donald Trump`s name back on the ballot, put him front and center, there is still a lot of ground that Republicans could gain yet in those rural areas.

HAYES:  And someone said I think there`s about 45 million white non-college voters that not voting.  Like, there`s a big pool.  It is not the case that the Trump base as a sort of electoral force is maxed out mathematically at this point.

KORNACKI:  Right, no.  And I think the dynamic here you`re really seeing, you`re talking about polarization, tribalism, each side is just reacting to the other.  And the best source of turn out for one side is the other.

HAYES:  Right.  Steve Kornacki, that was great.  Thank you for being with us.

KORNACKI:  Appreciate it.

HAYES:  Coming up, so what happens when a president and congress essentially go to war?  Emily Bazelon of The New York Times Magazine has a great new piece on just that and she will tell us.  Don`t go away.

(COMMERCIAL BREAK)

HAYES:  People talk a lot about a constitutional crisis, or at least they talk a lot about a  constitutional crisis in this era we find ourselves in, but they`re not that specific about what they mean by the term.  In the literal sense I think you could define a constitutional crisis as happening when  different branches of government are at war with each other, and there`s no controlling authority to say who wins.

We are apparently close to that situation right now as the White House has taken a really  unprecedented approach to not just how it defies congress, but the law itself.  Remember when Trump said he could shoot someone on Fifth Avenue and not lose any voters?  Did you know the president`s  lawyer in federal court last month argued to a judge the president could literally shoot someone on Fifth Avenue and not even being investigated for the crime.  Listen to this.

(BEGIN AUDIO CLIP)

JUDGE CHIN:  What`s your view on the Fifth Avenue example?  Local authorities couldn`t investigate?  They couldn`t do anything about it?

WILLIAM CONSOVOY, WHITE HOUSE LAWYER:  I think once a president is removed from office, any local authority -- this is not a permanent immunity.

CHIN:  Well, I`m talking while in office.

CONSOVOY:  No.

CHIN:  That`s the hypo.  Nothing could be done, that`s your position?

CONSOVOY:  That is correct.  That is correct.

(END AUDIO CLIP)

HAYES:  Only if he`s in office.

My next guest has written a feature in the New York Magazine on us hurtling towards a  constitutional crisis titled "What happens when a president and congress go to war."  She`s been writing a lot about the courts and the law, particularly about judicial process.  Please welcome Emily Bazalon.

(APPLAUSE)

HAYES:  Hey, have a seat.  It`s a great piece.

EMILY BAZELON, STAFF WRITER, "THE NEW YORK TIMES MAGAZINE":  Thank you.

HAYES:  So you mention this example in the sort of first few graphs of the piece, because it`s so shocking.  Today, we found out that in this case, right, which -- the federal judge at the district level and the appellate level ruled against the White House.  They`re going to go to the Supreme Court on this.  What do you think about that case?

BAZELON:  So this is a case about whether the district attorney in Manhattan can get President Trump`s tax returns for purposes of investigating the hush money payments that he made to Stormy Daniels.  And so what we have here is the authority of a local prosecutor to investigate.

I would think that the Supreme Court would come in on the side of the authority of that prosecutor.  The prosecutor is representing state government.  This is outside of federal authority, outside of the president`s control, but we just don`t know the answer.

It`s amazing how little Supreme Court precedent we have about questions like this.  And that`s one of the reasons there`s so much uncertainty right now.

HAYES:  Well, and the reason we don`t have that much precedent is because usually the White House acts somewhat differently than they are now, is that fair to say?

No, I mean, seriously.

BAZELON:  Yes, seriously.  No, you`re right.  Usually what happens is congress is investigating.  They issue subpoenas.  There`s some resistance, usually an opening gambit.  We`re not going to turn over all the documents.  You can`t have all your witnesses.  But then both sides find it in their political interests to negotiate and accommodate.  And so you have Hillary Clinton showing up and  testifying for 11 hours about Benghazi.  You have the attorney general for George W. Bush testifying before congress. 

We are not seeing that this time, we`re seeing this utter refusal blanket claims of immunity, and that is different.

HAYES:  Yes, I think it is hard because people think that the party is very polarized and they`re sort of at each other`s throats, that the White House`; refusal here is kind of par for the course.  But it is in the breadth of what they`re asserting legally in terms of what congress can and can`t do a sitting administration, it really is like way out past what other White Houses have asserted, is that correct?

BAZELON:  Yes, what`s important I think the distinction useful for me is it`s one thing for the president and his folks to challenge a specific request from congress, right, like...

HAYES:  This is onerous, or you can`t have this because of...

BAZELON:  Yes, you can`t interview my White House counsel because of my executive privilege over that very private zone of confidential communications.  OK, maybe the courts rule in  your favor.  You can see the logic of that, right?  Forget about this president for a moment, you could see you`d want a presidency that would have that kind of executive privilege. 

This is different.  This is basically challenging the legitimacy of a congressional investigation writ-large.  And that`s a different position.  That`s really challenging the power of congress.

HAYES:  Yes, this is letter that the White House counsel Pat Cipollone wrote to the House leaders.  He said President Trump and his administration cannot anticipate in your partisan, non-constitutional inquiry, because participating in this inquiry under the current unconstitutional posture would inflict lasting institutional harm one the executive branch and lasting damage to the separation of powers.

Here`s the question, who gets to say, right?  I mean, right now congress is in court with the executive branch, right.  They`re trying to get certain things enforced.  But the way political time cycles work versus judicial time cycles, it`s very easy for courts to just kind of kick the can down the road and essentially the White House wins?

BAZELON:  Right, so delay favors the status quo, and in that case this means the executive branch.  So, congress has gone to court over the tax returns, but congress has not gone to court in the impeachment inquiry. 

HAYES:  In fact, they pulled back from that possibility.

BAZELON:  Right, they -- exactly, they withdrew a subpoena from this one witness, Charles Kupperman, who he went to court himself.  He said wait a second, I don`t know what to do.  The president is telling me not to talk.  Congress wants me to talk.  I want the courts to settle this.  And congress said, you know what, this is going to take forever, effectively like this is a kind of political theater on your part, we are withdrawing the subpoena.

And what we`re seeing here is the power of the willing witnesses.  All these people have testified, right.  Most of them are career professionals in the government.  They are seeing things that truly alarmed them.  And they are choosing to defy the president`s directive and obey the directive from congress to show up and talk.  And that`s because they think what they have to say is really important for the country to hear. 

HAYES: In the case of that, the case you just mentioned with the subpoena was withdrawn, do you think that -- I mean, there`s the delay aspect of it, but I wondered also if the House was worried about an adverse ruling, right.

Because there`s this weird gambit by Kupperman is his name, right?

BAZELON:  Right.

HAYES:  Kupperman is a deputy of Bolton, and he`s the first person who actually says, oh, I don`t know what to do.  I`ll affirmatively go to the court and ask the court to tell me, right.  Everyone else just makes up their mind.  And Bolton has said on the record he would follow Kupperman`s lead, whatever the court told him to do.  He would do as well. 

Do you think the House folks, Schiff and the rest, were worried that if a court said, no, you don`t have to go that would like shutoff the spigot of witnesses?

BAZELON:  I think that`s possible.  I also think they look at this very conservative Supreme Court.  Some of its members have shown that they think executive power is a really important value.  And if, right -- so, if you`re congress and you think, well, this is going to take so long anyway, by the time I get any information it`s going to have lost its political value.  And there`s some chance the Supreme Court is going to rule against congress, setting a precedent that would be bad.  Like what`s the point of this, and that`s another reason to withdrew the subpoena.

HAYES:  We`ve got the district attorney Cy Vance going to Supreme Court.  We don`t know if they`re grant cert on it, so it may not get up there.  So, three levels to the federal judiciary.  There`s the district court, that`s the  trial court.  Then there`s appellate court and circuit courts and there`s the Supreme Court, there`s just three.  And one of things this administration has done more than almost more than any other administration is to skip a step, because they want to get to the Supreme Court, because they`re like we`ve got our bros.  We`ve got Gorsuch.  We`ve got Kavanaugh.  Like we`re good.  We`re good.  Let`s get to the Supreme Court.  We can count to five.  You`re laughing but it`s true.

Are we going to end up with some of this in front of the Supreme Court?  It seems like we don`t get out this year without a Roberts court decision on some of the scope of these issues.

BAZELON:  Yes, so this case we`re talking about involving the Manhattan`s DA`s office, you`re right, the Trump administration has said we are going to ask the Supreme Court to take this case.  The Supreme Court could say no.  It`s a really good appellate court decision, pretty basic.  And that could keep it out of the courts at least for now, but there are other cases bubbling up, too, another case about congress trying to get the tax returns from Trump.  That`s in the D.C. courts in Washington and that case also looks bound for the Supreme Court.

So, it does seem likely that we`re going to hear from the court in at least one of these matters.

HAYES:  The big fear here -- right now the setup that everyone`s sort of been using is you`ve got three branches of government and Article 1, Congress, and Article 2, the White House, are fighting, and Article  3 is the referee who comes in and says who is right.

A constitutional crisis is when  no one can say who`s right, or when the court says do this, and the executive says we`re not going to.  Like how close are we to that moment.

BAZELON:  We haven`t gotten to that moment yet, I am happy to say, because the courts haven`t ordered the president to do something that he hasn`t complied with.  And the other thing important to understand about all this subpoena investigation talk, congress has its own powers.  Congress can issue its own subpoenas, it could go back to its practice in the 19th and early 20th Century, of sending the sergeant at arms to arrest someone and jail them, right.  And if that sounds kind of out there to you, it also could use the power of the purse. 

Everything the executive branch does requires funding that congress approves, and funding could start saying like, hey, you know what, you don`t have any money for the White House counsel`s office.  There are a lot of things, levers congress could pull its own powers as a branch

HAYES:  Yes, it`s interesting to think of both of those things as sort of the next step in escalation if we get there.  Emily Bazelon, it`s a great piece, thank you so much for being here.

BAZELON:  Thank you.

(APPLAUSE)

HAYES:  Don`t go anywhere, we`ve got a special announcement and Rachel Maddow is coming up next.  So just stay right there.

(COMMERCIAL BREAK)

HAYES:  Thank you all so much for joining us tonight.  We will be back here in studio 6A next week.  And in a few weeks, I`ll be doing a live Why is This Happening right here in New York City on Sunday, December 8.  Catch me and my amazing guest, the great author and playwright Tony Kushner.  Tickets are available right now.  You can find all details on our website.  You do not want to miss it.

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

  END

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