Ever-changing Republican defense. TRANSCRIPT: 11/18/19, All In w/ Chris Hayes.

Guests: Peter Welch, Erin Banco, Harry Litman, Peter Nicholas, Sheryl GayStolberg, Carlos Curbelo, Cass Sunstein

CHRIS MATTHEWS, MSNBC HOST:  "ALL IN" with Chris Hayes starts right now.

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CHRIS HAYES, MSNBC HOST:  Tonight on ALL IN.

REP. NANCY PELOSI (D-CA):  What the President did was so much worse than even what Richard Nixon did.

HAYES:  Week two of public impeachment hearings, and a whole host of new details implicating the President and those around him.

MIKE POMPEO, SECRETARY OF STATE, UNITED STATES:  I`m proud of what this administration is done with respect to Ukraine.

HAYES:  Tonight, the latest testimony on the Hill, how it`s playing out with the public, and the real world electoral consequences for the President and his party.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  You got to give me a big win please, OK.

HAYES:  Then, Trump`s defenders scramble as the evidence piles up.

SEN. RON JOHNSON (R-WI):  This would have been far better off if we were just taking care of this behind the scenes.

HAYES:  Plus, new questions about just how much Mick Mulvaney knows.

MICK MULVANEY, ACTING WHITE HOUSE CHIEF OF STAFF:  I have news for everybody.  Get over it.

HAYES:  And a major policy shift in the White House.

TRUMP:  Mom, I want to vape.

HAYES:  When ALL IN starts right now.

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HAYES:  Good evening from New York, I`m Chris Hayes.  We are one week into impeachment hearings.  We`ve had two days of hearings last week.  We have three this week.  And just in the last 72 hours, we`ve gotten a lot of information.  One basic top line is clear and it is this.

Things are not great for the President right now.  In fact, it literally was not a great weekend for the President overall.  He was rushed to Walter Reed Hospital on Saturday, alongside the White House physician.  He spent more than two hours at that hospital.  It was not a planned trip.  It was nowhere on his public schedule that day.

The White House is now saying the President just popped over to the hospital to get a head start on his annual physical exam for 2020 which seems weird, but that happened over the weekend.  And generally, it feels like from the very moment that Trump`s call notes from that infamous call with Ukrainian President released, things have only really moved in one direction in terms of the picture of the facts.

Every news story only adds further details of the scope and the insidiousness of the President shadow operation to extort Ukraine into helping him win reelection.  Right before our show on Friday, we learned that a State Department official told Congress that he overheard a phone conversation with the President himself ask the U.S. Ambassador of the E.U. Gordon Sondland if the Ukrainian President was "going to do the investigation."

He also testified that after the phone call, Sondland agreed, "the President did not give an ass about Ukraine."  He also learned more about just how long ago the Ukraine scheme was hatched.  CNN reports that the White House Hanukkah party last year back in December 2018, Rudy Giuliani`s indicted associates Lev Parnas and Igor Fruman met with just Giuliani and President Trump during the Hanukkah party, apparently in some room.

And according to report, their conversation turned to Ukraine and "Parnas said that the big guy, as he sometimes referred to the President in conversation, talked about tasking him and Fruman with what Parnas described as a secret mission to pressure the Ukrainian government to investigate Joe Biden and his son.  A secret mission to pressure the Ukrainian government to meddle in the U.S. election against his political rival.

And then on Saturday, an official from the Office of Management and Budget, a career civil servant, a guy named Mark Sandy told Congress in behind closed doors testimony deposition that he was so concerned about the White House freezing that military to Ukraine.  "He raised questions to the OMB`s General Counsel about whether the move violated the Congressional Budget and Empowerment Control Act of 1974.

Over the weekend, we also got the deposition transcripts of Vice President Mike Pence`s Russia advisor Jennifer Williams.  She was actually on the July 25 call with Trump and the Ukrainian President.  She testified the Trump`s talk about investigations "struck me as unusual and inappropriate."

The President over the weekend attacked her on Twitter, saying she should "read the transcript and calling her never-Trumper."  Here`s the thing.  Jennifer Williams does not need to read the transcript.  She listened to the call as it happened in real-time.  It`s also weird and laughable to call her never-Trumper seeing as she works in the White House now.  She was the hand-picked person to work on the vice President staff, a detailed from the State Department.

Now, William has a key role this week and she was one of the people who will be testifying tomorrow, that`s at 9:30 in the morning.  She`s going to be there alongside Lieutenant Colonel Alexander Vindman who was also on the President`s phone call and was so alarmed by what he heard that he immediately reported it to the National Security Council`s top lawyer.

So tune in tomorrow, there will be three days of hearings this week.  And by all accounts, there will be tens of millions of Americans watching.  New ABC-Ipsos poll shows 58 percent of Americans say they`re following the hearings very closely or somewhat closely.

And the main idea of the hearings, at least from the Democrat`s perspective, does seem to be getting through.  70 percent think President Trump`s request to a foreign leader to investigate his political rival was wrong.

But It`s not just polling that shows this, there are real-world political events have happened in the last few weeks since impeachment started, none of which had been particularly encouraging for the President.  It was just two weeks ago that Trump went down to Kentucky the night before the election for governor.  And the very next day, the Democratic challenger won in a state that Trump had carried by 22 points.

Then last week, same play.  Trump goes down Louisiana, a state that he won by 20 points, to support the Republican challenger for governor.  And it was clear that Kentucky loss was still on Trump`s mind.

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TRUMP:  And the headlines the next day, Trump took a loss.  I lift him up a lot.  So Trump took a loss.  You got to give me a big win, please.  OK.  OK.

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HAYES:  So in President Trump`s view, the election is a test of his political capital and power and he went down there to tell everyone that explicitly.  And then-Democratic Governor John Bel Edwards was reelected just days later.

That`s not crazy to think that impeachment might have had some kind of pro- Republican backlash effect in red states.  But that is not what is happening.  The President went to Kentucky and Louisiana in back to back weeks to explicitly say, hey, electorate, this is a test for impeachment.  Please send the message you`re against it.  And both times the message the electorate sent back was just the opposite.

Joining me now is one of the members of Congress who will be conducting the public hearings this week, Democratic Congressman Peter Welch of Vermont.  He is a member of the House Intelligence Committee.  I want to start on the question of public opinion.

My sense strongly from the reporting that I`ve done and others have done is that the republic -- the Democratic caucus has come to the conclusion to start this inquiry on the merits and on the facts in some ways against some political inclinations.  But obviously, public opinion does matter here.  I mean, how do you think of the job that you have in terms of the public and what you want the public to know or find out or learn over the course of these public hearings?

REP. PETER WELCH (D-VT):  Well, you`re right.  We`ve got to be laser- focused on what is the impeachable conduct.  And the impeachment conduct obviously revolves around the deal the President made, were in exchange for a White House meeting and him releasing $400 million or so In military aid, the Ukrainian President with conduct investigations on the Biden and dig up dirt for the benefit of his political campaign.  That`s the question.

And our effort is to try to just lay that out in a sterile of fashion as possible.  Just the Facts, ma`am. And I think the committee has been doing that.

HAYES:  It`s funny, you use the adjective sterile there, because one of the arguments I`ve seen Republicans, and the President, and his campaign try to attack the hearings with as if they are boring.  What is your -- what is your response to that argument?

WELCH:  Well, it really is of constitutional significance.  And if the best defense you have is that the crime that it appears that President may have committed is boring, that`s not one I think that`s pretty particularly persuasive in public opinion.

But you know, let`s talk about the Republican defenses.  The one thing they haven`t talked about at all or the merits.  You know, the first defense was I didn`t do it.  The second defense, Mick Mulvaney`s so what if I did.  And the third defense is that the hearings are rigged and a sham process, and that it`s boring.  But not a single defense has been offered on the merits of what the President asked for in that favor.

So I think that`s an indication of how weak it is.  And the President, of course, has a well-earned reputation for telling fibs, some would say lies, and now we`re seeing a lot of defense of all those things the President said.

HAYES:  I saw the President today making some noises, I think, flatly disingenuous about how he would testify before the hearings.  And I don`t really credit that at all, I think rightly.  But he did remind me of this exchange that you had with Congressman Jordan about who should be coming before your committee.  I want to play you that and get your response.  Take a listen.

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REP. JIM JORDAN (R-OH):  Now, there is one witness, one witness that they won`t bring in front of us, they won`t bring in front of the American people.  That`s the guy who started it all, the whistleblower.

WELCH:  I`d like to say to my colleague, I`d be glad to have the person who started at all come in and testify.  President Trump is welcome to take a seat right there.

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HAYES:  It`s more than President Trump too.  I mean, there are many people.  Mick Mulvaney comes to mind who you would like to talk to around the President and his associates, and they are saying that you cannot speak to.

WELCH:  Well, that`s exactly right, Chris.  I mean, it was really a serious point on my response to Mr. Jordan.  You know, the President has stonewalled.  He has not provided any documents.  He`s not provided any witnesses.  And in fact, the brave people who have come forward like the Ambassador Yovanovitch, she did so in defiance of a directive from the State Department and from the President.  She responded to a lawful subpoena.

So it`s only these brave folks who are serving in the State Department, in the intelligence agencies, in Defense Department that are coming forward.  So the President has all of the information that he claims would be exculpatory supposedly, but doesn`t present it.  So it`s obviously bogus him offering to testify.  It`s as usual bluster.  But he really should be providing the information that Presidents like Nixon and Clinton did.

HAYES:  Yes.  We should note, the State Department has all sorts of documents and notes that they are not relinquishing, which I think everyone would be interested in seeing.  Congressman Peter Welch, thank you very much.

WELCH:  Thank you.

HAYES:  Joining me now, two people who have been paying close attention to the impeachment investigation so far, Erin Banco who`s National Security Reporter for The Daily Beast where she`s broken a number of stories and Harry Litman who`s a former Deputy Assistant Attorney General.  He`s now the host of the Talking Feds podcast.

Erin, let me start with you.  It is remarkable -- I mean, in some ways, we learn lots of new little bits of granular information every day, it seems every hour.  And then also the big picture remains unchanged from the time that we got the phone call which is what the plot was because it was happening there right in front of everyone.

You`ve got new reporting on this infamous meeting at the White House where Gordon Sondland was essentially sounds like just flat out telling Ukrainians like you have to give us these investigations or you don`t get the aid.

ERIN BANCO, NATIONAL SECURITY REPORTER, THE DAILY BEAST:  Yes.  The meeting as one source put it to us sort of went off the rails, as they put it.  So as you remember, this July 10th meeting was sort of broken up into two separate parts.  There was the first meeting that the Ukrainians had with former National Security Advisor John Bolton, and then there`s the second meeting that happens in the wardroom where Sondland sort of leads the Ukrainians into this separate room and begins making all sorts of demands.

And the people we talked to said the first meeting between John Bolton and the Ukrainians went quite well as professional.  The Ukrainians that came with the plan.  They said this is how we want to move forward with the U.S.  And it was only when Sondland sort of directed people back into the wardroom that things started to unravel.

He starts sort of raising his voice and making demands about you must open these investigations if you want a White House visit, making a lot of people in the room quite uncomfortable.

HAYES:  Harry, one theme here relates to that CNN reporting about Lev Parnas Igor Fruman having a meeting where they`re given the secret mission to apply this, is that there were too many people involved to keep this particularly secret.

And what we`re seeing in the witnesses coming forward including Mr. Holmes or Mr. Sandy, the folks that are coming -- going to come before the committee tomorrow is that the people that are not even on the plot who are not essentially the President`s henchmen seem almost to a person unanimously horrified by what is happening, and now compelled to tell the public and Congress about it.

HARRY LITMAN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL:  Too many people and too long a span, as you say.  I mean, this is the big contrast with Mueller where they could circle the wagons because it`s all the sort of loyalist.  This actually pushed out of the way, this some of the State Department career professional who are now coming back with a vengeance.

But we know from the most recent testimony, it`s a course of conduct starting from Zelensky`s inauguration and going into September.  It`s not just the phone call.  I mean, in broad strokes you have -- you have Morrison and Williams confirming the details of the call.

And then the dramatic centerpiece, I think, of the whole hearings is going to be Tuesday and Wednesday, Volker and Sondland.  Each of them is in very hot water and probably lied to Congress.  Will they try to take the Fifth?  Will they point at each other?  What will they do with Giuliani?

That I think -- everything else is confirming and so we want all the facts.  That`s great.  And now we`ll have this sort of electric moment where the people who really have been closest to Trump, especially Sondland might be pressed to unbearable pressure.

HAYES:  This is -- this is a great point, Erin.  I mean, Volker and Sondland are two of the three amigos, the third being Rick Perry.  And the two of the people who they come very early in these depositions and they`re on the hook for what they said and they are also the most kind of amenable to being tools for the President to carry off the plot.

Volker is going to come before that committee tomorrow, and to Harry`s point, he`s already a little bit of hot water in terms of what he said so far, right?

BANCO:  That`s exactly right.  It`ll be really interesting to see how Volker, you know comes in front of the committee, what he says, whether or not he points to Sondland.  As we`ve seen over the past week or so, you know, a lot of reporting has come out on Sondland.  All sorts of signs point to signs point to Sondland as -- especially as the person who had direct communication with President Trump.  I think that`s really important to remember.  As far as we know, Volker did not.

So the two will have drastically different kinds of testimonies and hearings, and it`ll be really interesting to see who points to whom.  You know, we already saw that Sondland, especially in his opening testimony, has tried to distance himself from the Ukraine portfolio saying, well, it was only a piece of what I did, and it really wasn`t all that important to me.

HAYES:  Right.

BANCO:  Whereas, Volker is very different.  He says, this is all I did.  Ukraine was, you know, sort of like my baby.  I tried to shepherd that policy in and I really believed in it.  And then, you know, we see Sondland come in and sort of throw knives into that policy and change things around a bit.

HAYES:  The other -- the other key point about Volker tomorrow who will be in the afternoon, Harry, is that last week we heard from three witnesses.  None of them had very direct interaction with Rudy Giuliani.  He was a kind of spectral presence that haunted their lives as they tried to actually pull off American policy.

Volker on the other hand, we know has direct contact.  It`s going to be the first time that someone who has essentially pulled into the irregular channel is Bill Taylor famously talked about it, will be on this -- sworn in.

LITMAN:  Yes, that`s exactly right.  Volker really can bury Giuliani and Sondland really can bury Trump himself.  But Volker made five or six statements in his deposition that are just whoppers starting with he doesn`t know anything about Biden and Burisma, the meeting that Erin referred to, the famous July 10th.  He said it was just a sort of boring, nothing happened.  We -- you know, he is really on the hot seat for that one.

So it`s not simply that he can point to Giuliani, but that he has to himself make a strategic decision about which way he`s going to go.

HAYES:  There`s a lot of suspense about that -- those hearings this week.  I have no idea how any of that is going to go.  Erin Banco and Harry Litman, thank you both.

BANCO:  Thank you.

HAYES:  Next, renewed questions about just how much White House Acting Chief of Staff Mick Mulvaney knows.  This new reporting ties him closer and closer to the center of the Ukraine scheme.  The latest in two minutes.

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HAYES:  As I said before, we already know a ton about the Trump administration`s Ukraine scheme.  In fact, everything we are finding out I think the Democrats would say is a kind of icing on the impeachment cake.  There`s one thing we still have some questions about which is just be exact justification and the mechanics of that hold on the nearly $400 million congressionally mandated and authorized military aid to Ukraine, which of course is a key part of this entire scheme.

One person who could shed light on that is the White House Acting Chief of Staff/Office of Management and Budget Director Mick Mulvaney, a person who already said, remember in front of cameras, there was a quid pro quo, but has subsequently refused to testify before the impeachment committees.

In exclusive reporting, the Wall Street Journal furthers the case that Mulvaney is directly implicated because the President`s personal appointment on all this, of course, the legendary Gordon Sondland looped Mulvaney and by e-mail.  "On July 19th, the day before the President was initially scheduled to speak the Ukrainian President, Mr. Sondland e-mailed a group of administration officials including Mr. Mulvaney and Energy Secretary Rick Perry."

Here is what he wrote in that e-mail.  "I talked to the President of Ukraine just now.  He is prepared to receive the President`s call.  Will assure him that he intends to run a fully transparent investigation and will turn over every stone."  Mr. Mulvaney responded, I asked the National Security Council set it up for tomorrow.

It`s important to remember, the military aid to Ukraine is the big cudgel that`s being wielded in this, and Mick Mulvaney appears to be right in the thick of it.  For more on that, I`m joined by Peter Nicholas White House Reporter at the Atlantic who writes that with impeachment, Trump is "surrounded."

Mulvaney strikes me as a sort of unique figure here because of how central he is in the whole thing, because he has also been subpoenaed, because he tried to join a court case to get a court to ruled out whether he should come out there, and seems to have in some ways the most direct exposure for people not named Donald Trump or Giuliani.

PETER NICHOLAS, WHITE HOUSE REPORTER, THE ATLANTIC:  There`s one more reason why Mulvaney is such an interesting figure here is that Trump has been talking to age exploring the possibility of firing him.  He`s been asking whether Mulvaney is really up to the job and can help whether this impeachment crisis.

So Trump has been told, you know, maybe this is not the right time.  Mulvaney knows so much that you`d necessarily -- you don`t necessarily want to alienate him, make an enemy of him.  So for many reasons, Mulvaney is really at the center of the storm.

HAYES:  Yes, that`s a point here that I think is worthwhile to note.  From the point of view of the courts and precedent about who can and cannot be subpoenaed by Congress, there is quite a distinction between active and former members in terms of the assertions the executive make on them.  Mulvaney being out of a job would render his ability to contest weakened, right?

NICHOLAS:  That`s an excellent point.  The White House has pretty much stonewalled this entire investigation.  But one thing they`ve said is that no acting official can testify because those conversations that person would have had with Trump would be privileged.

But if that privilege is weakened, if a person is no longer working in the building, the person is no longer in the West Wing, the White House`s hold and control over that official is attenuated.  And that`s the situation with Mulvaney.

Lyndon Johnson has an expression, clean it up a bit for T.V., but we don`t want somebody outside the tent peeing in.  We want somebody inside peeing out.  I think that`s what to think about Mulvaney at this moment.

HAYES:  You know, Mulvaney is not the only one, right?  I mean, one of the crazy things here and I think you wonder how much this is on purpose and how much this was just a byproduct of everyone attending to the President`s obsessions.  But you have Pompeo, Mulvaney, and Vice President Pence, and Rick Perry, all of them appear to be at some way, shape or form connected to the fundamental thrust of the attempt to extort Ukraine here.

NICHOLAS:  Yes.  You have -- it`s all the President`s men.  I mean, there are people who are acting at the behest of the President.  So, Congressman Welch who spoke to earlier I think had a right.  I mean, the person really at the -- at the origin of this is Donald Trump, who has, I guess, suggested that he might be willing to testify, although I believe that when I see it.

HAYES:  We`ve got some reporting about Mr. Mark Sandy who gave a deposition on Saturday.  It`s the first time that someone from OMB has testified.  That, of course, is one of the offices that Mulvaney runs along with being the chief of staff.

Sandy testified that he`d never In his career seen the senior political OMB official assume control of a portfolio in such a fashion.  That`s referring to his boss` political appointee Michael Duffy who pulled it away.  He also testified that he raised questions to the OMB General Counsel about whether the move violated the Congressional Budget and Empowerment Control Act of 1794.  There are further questions for the OMV folks in this, it strikes me.

NICHOLAS:  Well, you know, the sad thing about this, Chris, is that this is not supposed to be a politicized process.  Congress approved this aid.  It`s supposed to be delivered.  Why wasn`t it delivered?  I mean, isn`t -- wasn`t that the law?

So I think OMB officials, rank and file career officials are wondering, you know, what is the holdup here.  This is not a normal process.  This should have been delivered.  It wasn`t.  And apparently, it wasn`t for domestic political reasons.  The President was concerned -- wanted some leverage over Ukraine to get some dirt on Joe Biden.  And you know, it doesn`t sit well with other people.

HAYES:  You know, that point -- that point is an important one because part of the argument to justify the hold as a kind of conditionality that`s part of the natural part of policy which I think doesn`t -- isn`t quite persuasive at all, is overridden by the fact that the aid was already appropriated.  It was signed into law by the President.  I mean, OMB is supposed to just essentially be dotting the I`s, crossing the T`s, and then cutting the check, right?

NICHOLAS:  Exactly.  I mean -- so I think that`s why these OMB officials are important.  And that`s Mulvaney -- to get back to your original question, is such an important witness because he is the acting OMB Director.  He really does understand this budget stuff, and you know, this was the cudgel.  This was the leverage that Trump had to extract the commitment he wanted from Zelensky, the President of Ukraine.

So for those reasons, Mulvaney is an important witness, but also OMB has been put in an impossible position.  Particularly, rank and file career people were just trying to follow the law here.

HAYES:  Yes, that`s a good point.  Peter Nicholas, thank you very much.  Still to come, the Republicans have tried out so many arguments against impeachment.  You might think they`ve already heard the -- you`ve already heard the worst one yet.  That said, Senator Ron Johnson came out with a pretty good contender.  We`ll play it for you next.

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HAYES:  We are now in week two of public impeachment hearings into President Donald J. Trump.  And one of the things that continues to be on display is the utter inability of members of the Republican Party to come up with a coherent defense to the President.

Instead, we`ve gotten a stream of contradictory claims, arguments in the alternative, and just general incoherence.  For one thing, the President and his defenders continue to be obsessed with the whistleblower despite the fact that we now have just a ton, almost too much-sworn evidence about the conduct at issue that goes way beyond the initial whistleblower complaint.

Republicans have also largely given up on trying to deny the transgression at the heart of the impeachment inquiry, Congressman Welch mentioned this, that the President withheld U.S. military aid to Ukraine in an attempt to extort Ukrainian President into manufacturing dirt on his political rivals.

Republicans are pretty much conceding that happened more or less, but they are arguing that ultimately the aid got released in the end, the Ukrainians never actually announced the investigations that Trump wanted, and everything worked out.  So what`s a little attempt to bribery between friends?

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LAURA INGRAHAM, HOST, FOX NEWS CHANNEL:  Just for the sake of their argument, attempted bribery isn`t in the Constitution.  Remember, Ukraine got its military aid.  It was 14 days delayed.  Big deal.

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HAYES:  Big deal.  The thing is, though, the aid was not released in a vacuum and this really can`t be stressed enough.  Congress learned about the whistleblower complaint on November -- on September 9th, and then just two days after that the aid was released right after the public found out what Trump was up to.

Generally, as a general matter, you do not get absolved for crime because you get caught in the act of committing it.  Just yesterday, we got a novel new addition to the Trump defense playbook, courtesy of Republican Senator Ron Johnson who is an interesting character in all this.  We`ll get into it.

He essentially argued that if officials had not reported Trump`s attempted bribery, lawmakers would have managed to talk the crazy man down off the ledge without anyone finding out what he was trying to do.  And that would have been so much better for everyone.

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SEN. RON JOHNSON, (R) WISCONSIN:  This would have been far better off if we would have just taken care of this behind the scenes.  We have two branches of government.  Most people, most people wanted to support Ukraine.  We were trying to convince President Trump.  And so the whole -- I mean, again, I listened to The Washington Post article lionizing this whistle- blower.  Listen, if the whistle-blower`s goal is to improve our relationship with Ukraine, he utterly or she utterly failed.

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HAYES:  Joining me now to break down Republicans` attempted defenses of the president, Sheryl Gay Stolberg, congressional correspondent for The New York Times; and Carlos Curbelo, former Republican congressman from Florida and an MSNBC political analyst.

Cheryl, let me start with you.  I mean, if there does seem unanimity, almost unanimity, particularly in the House, that the president needs to be defended, that they`re not sitting there thinking, oh, this looks bad.  But there is and continues to be real confusion as far as I can tell about what the actual argument on the merits is.

SHERYL GAY STOLBERG, THE NEW YORK TIMES:  Well, I think Republicans are running out of defenses, frankly.  Last week we saw that they were defending the president by saying, oh, all these witnesses are secondhand, nobody has come before the committee with firsthand information.  And that defense actually is going to evaporate this week, because we`re going to see people before the committee who do have firsthand information, people like Gordon Sondland who was the president`s point person in dealing with Ukrainian officials.

So now Republicans are saying, well, Ukraine got the aid.  The investigations of the Bidens never happened.  So, you know, that`s the bottom line basically.  Nothing -- you know, he`s not guilty of anything because his plot never materialized.

HAYES:  You also mentioned the fact, Carlos, that David Holmes, who`s the person who came forward to give his deposition on Friday -- I think his transcript is being released momentarily -- says in his testimony that he came forward because of the Republican hearsay defense.  In his opening statement he says, look, all these Republicans were saying it`s all hearsay.  I didn`t think I needed to testify.  But then I thought, well, I did listen to the president bark into the telephone about the investigation.  So, you know, these defenses that Republicans make can have real world results in terms of who feels like they need to come forward as a witness.

CARLOS CURBELO, FORMER REPUBLICAN CONGRESSMAN:  That`s right, Chris.  And what Republicans have done is establish a series of facts that are related to the situation but that aren`t fundamental to the investigation.  So it is true that this administration has given aid to Ukraine, lethal defense aid.  That`s wonderful.  I agree with that.  That`s something to celebrate.  It`s not related to the fact that the president leveraged the aid in order to launch an investigation against a political rival.  It doesn`t alter the fact that the president invited a foreign leader to investigate a private U.S. citizen, happens to be running for president, but an American citizen.

HAYES:  Which is messed up.

CURBELO:  Exactly.  And so what Republicans are doing is deflecting.  They`re establishing facts that are true, and you`ve seen some of them articulate that very eloquently in committee, but it doesn`t go to the core of what`s being investigated.

HAYES:  Do you -- Sheryl, so I noticed last week the first day things were kind of -- the Republicans were not engaging in a lot of sort of theatrics.  There`s a little bit in the beginning, and then it was sort of -- you know, it was fairly normal hearing if an impeachment inquiry -- if can be called that - - it seemed like between day one and day two there was a note given that they had to like amp it up and there were a little more stunts and theatrics.

Do you have any sense in reporting about what their approach is this week?

STOLBERG:  Well, I think you`re absolutely right.  It was interesting, one Republican who is working behind the scenes to kind of coordinate strategy told me that their strategy for the first hearing was keep it boring.  Let`s turn this into a snooze.  We don`t want people tuning in.  And that`s what they did.

And then you saw that they did try to amp it up.  Elise Stefanik tried to make a ruckus about Adam Schiff shutting her down when she went to ask some questions, so there was a little more fireworks.

And then President Trump kind of blew things up for them last week when he attacked Marie Yovanovitch, the witness who testified on Friday.

I think Republicans, frankly, don`t quite know what to do this week, especially with the Sondland testimony because that could go one of two ways.  You know, Sondland can really throw President Trump under the bus.  And I don`t know what -- you know, Republicans will just have to contend with that.  It`s a big question whether or not he wants to fall on his sword for the president.

CURBELO:  And Chris, this is all complicated by the fact that the president demands absolute  loyalty.  For the president, it`s not OK if you say, well, I don`t really like what the president did but I don`t think it`s impeachable.  For him that`s betrayal.  He will come after you.

So these Republicans are in the position of having to defend him even in terms of conduct, setting aside impeachment, and that is a very difficult position.

HAYES:  Do you think about what about you -- had you won reelection in 2018, you had a -- you were in a difficult district that Hillary Clinton won by I think eight points or something like that; you had a tough, hard fought  reelection -- do you watch this and think to yourself if I was there hanging on by my fingernails to a front line seat and I was going to have to face the voters in 2020 in a tough race what would I do.  What do you tell yourself about what you would be doing?

CURBELO:  Well, what I would have said is that there should be an inquiry, and I would have supported the opening of an inquiry.  I would not have a position yet on impeachment.  I would wait until the end of the hearings. 

But look at what`s happened to the Republican Party.  There isn`t room for that middle ground.  Take two young talented Republicans, Justin Amash and Elise Stefanik.  Amash decided to criticize the  president, he had to leave the party.

HAYES:  He was excommunicated.  He was kicked out essentially.

CURBELO:  Exactly, he had to leave.  If you`re not loyal, absolutely loyal, you have to leave and that`s a very difficult political decision to make. 

In terms of a moral decision, I think it`s rather easy. But the politics are very complicated.

HAYES:  Yeah, I feel like the whole minority caucus is going to be in there with red hats this week.  Sheryl Gay Stolberg, Carlos Curbelo, thank you both for being with me.

CURBELO:  Thank you, Chris.

STOLBERG:  Thank you.

HAYES:  Still to come, we`ll talk about the president testing the limits of constitutional  authority.  Plus tonight`s Thing One, Thing Two starts next.

(COMMERCIAL BREAK)

HAYES:  Thing One tonight, every now and then the president gets excited about a particular issue that feels like it kind of came out of nowhere.  Like, lately, he`s been really worked up about vaping.

(BEGIN VIDEO CLIP)

TRUMP:  We have a problem in our country, it`s a new problem, it`s a problem that nobody really thought about too much a few years ago, and it`s called vaping, especially vaping as it pertains to innocent children.  And they`re coming home and they`re saying, mom, I want to vape.

(END VIDEO CLIP)

HAYES:  I`m not sure that`s how it usually goes down.  But OK, sure, vaping is definitely not a good thing for children, especially the flavored e- cigarettes that appeal to kids. And so Trump has been talking a lot about taking action.

(BEGIN VIDEO CLIP)

TRUMP:  We`re going to be coming out with a very important position on vaping.  We have to take care of our kids most importantly.  We`re talking about the age.  We`re talking about flavors.

(END VIDEO CLIP)

HAYES:  And so his administration got to work, federal regulators agreed to ban flavored  e-cigarettes.  Officials planned an announcement, they drafted the ban, they put it in front of Trump for signature and he said, never mind.  And that`s Thing Two in 60 seconds.

(COMMERCIAL BREAK)

HAYES:  So President Trump has been really concerned about vaping lately, apparently in large part because it`s an issue that`s important to Melania.

(BEGIN VIDEO CLIP)

TRUMP:  Vaping has become a very big business, as I understand it, like a giant business in a very short period of time.  But we can`t allow people to get sick and we can`t have our youth be so affected.  And I`m hearing it and that`s how the first lady got involved.  She`s got a son together that is a beautiful young man and she feels very, very strongly about it.  She`s seen it.  We`re both reading it.  A lot of people are reading it.  But people are dying with vaping.

(END VIDEO CLIP)

HAYES:  But in the end, Melania`s concern about her son, their son, you know, together, and you  know other people dying just wasn`t enough.  When it came time to actually sign off on a ban on flavored  e-cigarettes about all his talk about doing it, he didn`t, a complete reversal. 

Why?  Well, maybe it was because the president`s campaign manager reportedly told him the ban would hurt him with his base of vaping MAGA people.  And so just like that, the White House policy on vaping has gone from ban it to more of a Nancy Reaganesque just say don`t Vape.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Mr. President, what exactly have you and the first lady told Barron about vaping?

TRUMP:  We haven`t told him anything except don`t vape. Don`t vape.  We don`t like vaping.  I don`t like vaping.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

HAYES:  Back in October 2016, Army Major Matthew Goldstein admitted on camera to executing a prisoner who had just been released from custody in Afghanistan. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Shortly after releasing the Taliban detainee, Goldstein took matters into his own hands.

Did you kill the Taliban bomb maker?

MATTHEW GOLDSTEIN, U.S. ARMY:  Yes.

(END VIDEO CLIP)

HAYES:  That admission led the army`s criminal investigation command to reopen its investigation into the killing, and ended up charging Goldstein in 2018 with murder.  He was awaiting trial until Friday when for what could possibly be the first time in American history as far as we can tell, the commander-in-chief pardoned a member of the armed services accused of a war crime  prior to their trial.

And Goldstein wasn`t the only one pardoned on Friday, the president also pardoned Army First Lieutenant Clint Lorance who was serving 19 years for ordering his soldiers to open fire on three unarmed men in Afghanistan.  Keep in mind, Lorance was convicted with the aid of testimony from nine members of his own platoon. 

The president also restored the rank of Navy SEAL Edward Gallagher who had been convicted of desecrating a corpse.

The reporting indicates the Pentagon tried desperately to waive Trump off of this disastrous and morally odious undertaking, arguing it would undermine their ability to maintain good order and discipline, that it would tangibly endanger soldiers in the field.  But Trump was lobbied heavily by some Trump TV stars who he cares about more than any Pentagon official.

Writer Andrew Exum who served in Afghanistan and Iraq summed up his feelings this way, quote, "these men, now pardoned, remain a disgrace to our ranks."

This isn`t the first time President Trump in May he pardoned a convicted war criminal.  Back in May, he pardoned former Army First Lieutenant Michael Behenna who was imprisoned after killing an Iraqi prisoner in U.S. custody.

But President Trump is the only president in recent history to pardon service members convicted of war crimes.

(COMMERCIAL BREAK)

HAYES:  The president of the United States has the absolute power to pardon people.  It was granted by the constitution, just like he has the absolute power to, say, recall an ambassador.  But Trump has good test cases for these examples of constitutional authority, because if the purpose is corrupt enough, what then is to stop him?

Would it be constitutional for a president to offer a pardon in exchange for half a million dollars, or recall an ambassador because she wouldn`t have a romantic relationship with him?  Neither of those pertain here, obviously.  But the point is that there must be some limits to these broad powers if abused.  And the only constitutional remedy that was provided for them was impeachment, which is  why we are where we are.

To talk more about that and the abuses of power that got us here, I am joined by Harvard Law Professor Cass Sunstein.  He was president Barack Obama`s administrator for the White House Office of Information and Regulatory Affairs.  He also has a book out titled Impeachment: A Citizens Guide.

It`s good to have you here.

CASS SUNSTEIN, HAVARD LAW SCHOOL:  Good to be here.

HAYES:  You know,  I thought of you here because there`s mention of pardon power in the impeachment book.  And we saw the pardons on Friday night.  Obviously, I don`t think those are impeachable necessarily, but it is a kind of loaded gun inside the constitution that even at the time they were worried about.

SUNSTEIN:  Completely.  So in Virginia where the constitution maybe wasn`t going to be ratified, there was a debate exactly about the loaded gun and prominent people said you can`t ratify the constitution because the pardon power means that it it`s not a republican, small r, document.  It`s not what we fought the revolution for.  And James Madison very quietly says the gentlemen seem to have forgotten something, and then he says if the president shelters someone who`s committed crimes that the president himself saw or participated in, the president will be impeached.

HAYES:  So, I mean, Madison at that moment understands impeachment precisely to play the role as the kind of check to an unchecked power.

SUNSTEIN:  Completely.  So the pardon power was one of a number of authorities that people were worried about, and Madison and Hamilton and many others, Franklin certainly, thought the reason for the impeachment clause is to say that abuse of power is an impeachable offense.  And that goes back to the pre-revolutionary period when the American colonists had started impeaching agents of the king on the ground that they had a bused their authority.

HAYES:  You know, there is a broader theme here I think with the president which is that there are all kinds of ways in which his power is wielded that are lawless, if not illegal, if that makes sense, if I can make that distinction, and places where the corrupt intent or the bad faith about actions the government are taking end up making it hard to credit what he`s doing as orderly or proper use of the power to take care that the laws are faithfully executed.

SUNSTEIN:  Completely.  So that`s how the census case actually got resolved when Chief Justice Roberts, who is not known as a left of center person, ended up concluding that because the reason for adding the question to the census about citizenship wasn`t what was articulated to get an accurate count, then they really had to rethink it and make sure that the legitimate goals were pursued.

And for impeachment and presidential power, that`s like a large theme that if you have an authority, but the reason you are doing it has to do with your own self-interest or about corrupting our system or about abusing civil liberty, then all bets are off in the sense that we the people are allowed to rise up and say you can`t be president anymore.

HAYES:  The corruption of that intent pertains explicitly to the arguments that we made -- that  we see made on the president`s behalf, often, by his defenders which is essentially -- look, we condition foreign aid all the time, this is all part of policy essentially, fundamentally.

SUNSTEIN:  And that`s a completely fair point.  So to condition a foreign aid on combating corruption is legitimate in many ways honorable, and if that`s all that happened here I think no one would have a complaint, which is actually a productive clarification that suggests the only question Republicans and Democrats actually agree is was this a neutral effort to ferret out corruption or was this an effort to target a political opponent?  The comments on both sides suggests the latter really would be an illegitimate thing to do.

HAYES:  What do you think about the notion -- Laura Ingram put it this way on her program the other night -- that attempted bribery isn`t in the constitution.  And an argument I`ve seen growing on the right and in the Wall Street Journal editorial page, which is essentially, well, look, he didn`t get away with it.  In the end, they released the aid and the announcement by President Zelensky of investigations of the Bidens didn`t happen, and so really let`s all move on.

SUNSTEIN:  Well, the first point is that attempted treason would be an impeachable offense if you tried to commit treason, but you failed because you weren`t good at it, it wouldn`t be easy to say  that`s not an impeachable offense.

A second thing to say is that bribery is actually defined to include solicitation of bribery.  That is bribery.

The third thing to say...

HAYES:  I see.  If you ask someone for a bribe, you are committing the crime of bribery whether they fork it over or not?

SUNSTEIN:  That`s the technical definition.  The solicitation it is part of the offense.

And the third thing to say is even if it was attempted bribery, an attempted crime is a very bad thing to do.  It`s part of something that lands a lot of people in jail. And so the fact that it didn`t work, if that`s the defense, wouldn`t be a very good defense.

And the last thing to say is even if it weren`t bribery, and note the definition of bribery includes solicitation, there is a constitutional term that I think people familiar with, high crimes and misdemeanors, which refers to abuse of authority.  And the whole point was to say even if it`s not treason, even if it`s not bribery, it`s impeachable.

HAYES:  My final question is about the ways in which impeachment shapes our views of the  executive and the relationship particularly between congress, the people and the presidency.  When you look back at other moments of impeachment, had there been sort of lasting effects of this assertion of a kind of congressional power against the sort of ever expanding imperial presidency, or is it just a sort of blip and then we go back to this...

SUSTEIN:  I think it has had lasting effects.  So the Nixon impeachment effort, which led to his resignation, actually was a moment of accounting for the country which led to  variety of restrictions which were designed to ensure that this kind of thing wouldn`t happen again.  And those things generally, those restrictions, would have to do with corruption and civil liberties and foreign policy and constraints on using the presidency as a political weapon.  Those things are in effect, and generally they`re working and they are supported by both sides.

With Clinton, it`s less clear because we didn`t have an abuse of distinctly presidential authority, we had a different kettle of fish.  But even so the Clinton impeachment I think did help contribute for a while to a culture where integrity was a prized value.  And one reason President Bush actually became President Bush is that he ran a campaign of I`m going to be honest, I`m going to be a person of integrity.

HAYES:  All right, Cass Sunstein, it`s great to have you here in studio. Come by any time.

SUNSTEIN:  Thank you.  Please.

HAYES:  That is ALL IN for this evening.  "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