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Transcript: All In with Chris Hayes, 10/4/22

Guests: Roger Sollenberger, David Jolly, Deuell Ross


Pro-life Georgia Senate Candidate Herschel Walker denies the accusation that he paid for his girlfriend`s abortion. National Republicans stand by Herschel Walker after a report he paid for an abortion. Senator Ron Johnson continuing to insist to this very day that the people who attack the Capitol weren`t armed. Prosecutors play secret recording that shows what Oath Keepers allegedly are planning for January 6. The Supreme Court hears case that could gut another section of the Voting Rights Act.


JOHN FETTERMAN (D-PA), SENATE CANDIDATE: -- campaign and I`m proud of the race that we`ve run and we`re going to continue all to the end.

JOY REID, MSNBC HOST: Pennsylvania Lieutenant Governor and U.S. Senate Candidate John Fetterman, thank you very much. I really appreciate your time tonight.

FETTERMAN: Thank you so much for having me.

REID: Thank you. All right, a reminder, the last day to register to vote in Pennsylvania is October 24. The last day to apply for a mail-in or absentee ballot is November 1st.

And that is tonight`s REIDOUT. Make sure that you register. Make sure that you vote. "ALL IN WITH CHRIS HAYES" starts now.


CHRIS HAYES, MSNBC HOST (voiceover): Tonight on ALL IN.

UNIDENTIFIED MALE: What about the $700 check what does there anybody you can remember sending that much money to?

HERSCHEL WALKER (R-GA), SENATE CANDIDATE: Well, I send money to a lot of people and that`s what`s so funny.

HAYES: It`s an October surprise for the ages.

CHRISTIAN WALKER, SON OF HERSCHEL WALKER: The abortion part drops yesterday. It`s literally his handwriting in the card. They say they have receipts, whatever. He gets on Twitter. He lies about it. Everything has been a lie.

HAYES: Tonight, the Daily Beast reporter who broke the Herschel Walker story joins me live. And 100 days after the overturning of Roe, how this bombshell could change the election landscape.

Then, what we`re learning about the Oath Keeper plan to ferry artillery to the Capitol on a boat on day two of the seditious conspiracy trial. And what happened when Alabama`s case to gut the Voting Rights Act met Ketanji Brown Jackson in the Supreme Court today.

KETANJI BROWN JACKSON, ASSOCIATE JUSTICE, U.S. SUPREME COURT: I don`t think that the historical record establishes that the founders believed that race neutrality or race blindness was required.

HAYES: When ALL IN starts right now.


HAYES: Good evening from New York. I`m Chris Hayes. You know there are two ways to view the Republican Party`s stance on abortion and abortion rights. And its catastrophically successful attempts to end abortion rights in this country which they`ve succeeded doing in state after state after state.

Now, the first view is that Republican officials the conservative movement writ large, particularly religious evangelicals, hold this belief, sincere belief, zealous, sincere belief that life begins at conception. And therefore, abortion is murder, tantamount to taking human life. I personally think that view is wildly wrong. But at least if you listen to Republican politicians, they say that`s our sincere belief. We believe in life.

Now, there`s another interpretation, which is much more cynical, basically, that Republican politicians, conservative movement are invested in the patriarchy, in controlling women`s lives. It`s not really about life in any way. They want to policewomen`s bodies. They want to have control over what they do with their bodies. And today, we have some of the clearest evidence yet, the cynical view may really be the correct one.

You may have seen this news. According to the Daily Beast, Trump endorsed Georgia Republican Senate nominee Herschel Walker allegedly got a woman pregnant in 2009 -- not like ancient history -- 2009, and then he paid for her to have an abortion. The Daily Beast has the woman`s receipt for the procedure and the check Walker sent her days later. They even have a photo of the get-well card Walker apparently sent the woman after the abortion. The card reading "rest, relax, recover." A signature saying, I pray you are feeling better with what looks like Walker`s signature aged.

Now, Walker denies this and NBC News has not yet verified these allegations are independently reviewed the documents involved. This is a Daily Beast report. But just to be absolutely clear here. I don`t think there`s anything wrong with a woman having an abortion or for a partner financially helping her with that procedure. In fact, I would go further and say, I don`t think any of this is any of our business at all.

But Herschel Walker does. At least he says he does. Not only has Herschel Walker supported South Carolina Senator Lindsey Graham`s first-ever national abortion ban at 15 weeks, he`s gone further calling for a full federal ban.


UNIDENTIFIED MALE: Walker was asked about the U.S. Senate potentially voting on a national ban on abortion. And he answered by saying the absence of such a ban is a problem.

WALKER: There`s not a national ban on abortion right now and I think that`s a problem. We keep talking about things like that. Right now, I`m for life and I`m not going to make an excuse for it.


HAYES: Oh, there it is, again, life. I believe in life. Now, Walker has also said he does not support exceptions for rape or incest. And according to reporting, the woman who came forward and spoke to The Daily Beast says she did so because of Walker`s hardline stance against abortion and all cases. "I just can`t with the hypocrisy anymore, she said. We all deserve better."

Now, in response to all this, Walker`s campaign had this very, very high dungeon statement last night in which they threatened to sue the Daily Beast. I`ll quote here. I`m not taking this anymore. I`m planning to sue the Daily Beast for this defamatory lie. It will be filed tomorrow morning. Classic Trumpian move. It`s now been more than 24 hours. This morning was this morning since Walker released that statement. Do you think he`s filed a lawsuit yet? You get to guess real quick. No, no, he hasn`t. But this reporting did invoke a very passionate response from Walker`s son, Christian, who`s something of an aspiring a conservative influencer.


C. WALKER: I stayed silent as the atrocities committed against my mom were downplayed. I stayed silent when it came out that my father Herschel Walker and all these random kids across the country, none of whom he raised. And you know, my favorite issue to talk about is father absence. Surprise, because it affected me. That`s why I talked about it all the time because it affected me. Family values, people. He has four kids, four different women, wasn`t in the house raising one of them. He was out having sex with other women.

Do you care about family values? I was silent lie after lie after lie. The abortion card drops yesterday. It`s literally his handwriting in the car. They say they have receipts, whatever. He gets on Twitter. He lies about it. OK, I`m done. Done. Everything has been a lie.


HAYES: Now, Christian alluded to the atrocities committed against his mother there and he elaborated in a tweet. He wrote this. You`re not a family man when you left us to bang a bunch of women, threatened to kill us, and had us move over six times in six months running from your violence.

I read that a bunch of time last night. It`s really an intense thing to read from a son to his father in public. Really troubling accusation. We reached out to representatives for Walker for comments on his son`s allegations of being threatened with his life, having to move to escape the violence of Herschel Walker. We haven`t heard back.

Also, as far as we can tell, there`s a new allegation of violence against Walker separate from the widely publicized accusation his ex-wife Christian`s mother made nearly 15 years ago.


CINDY DEANGELIS GROSSMAN, EX-WIFE OF HERSCHEL WALKER: His eyes would become very evil. The guns and knives -- I got into a few choking things with him. The first time he held the gun to my head, he had a gun to my temple and said he`s going to blow my brains out.


HAYES: Now, that allegation is established against Walker more than a decade old. We should say that Walker has not denied that one. He said he doesn`t remember the instances. Now, in my humble opinion, that should have been enough to end Walker`s political career before it began. The guy doesn`t have to be U.S. senator. So, why you might be asking is Herschel Walker, of all people, the Republican nominee for Senate in Georgia, a state he wasn`t even living in when he first started running? The answer is Donald Trump.

I mean, Trump himself won the presidency in the back of his own celebrity, so he assumed celebrities are automatically winning candidates. He picked a celebrity in Pennsylvania as well. And when it came time to pick a candidate for Senate in Georgia, Trump immediately thought of Walker who was the star college football player in Georgia back in the late 80s.

And Trump really likes Herschel Walker, something he made known when Herschel Walker appeared as a contestant on Trump`s game show back in 2009.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: You`ve lost before, Herschel. You were the project manager. You know how much I like you. I love you. I love you. I am not a gay man. And I love you, Herschel. Herschel, you`re fired.


TRUMP: Good luck. Thank you. Thank you. That`s a tough one.


HAYES: I love you. I`m not a gay man. You`re fired. That`s a tough one. That is arguably why Herschel Walker is the Republican nominee for Senate in Georgia against, we should note, the wishes of many Republican operatives throughout the state. He`s their guy now. They`re going to stick with them.

Today, the National Republican Senatorial Committee released an unintentionally hilarious statement. It reads in part, I`ll read it to you, "Democrats in the media have tried to stir up nonsense about what has or hasn`t happened in Herschel Walker`s past because they want to distract from what`s happening in the present." Has happened or hasn`t happened. Who`s to say really?

Walker also went on Fox News last night over what was supposed to be a softball rehabilitation interview to dismiss the allegations against him. It was a little tough to watch.


WALKER: I sent out so many get well, send out so much anything. But I can tell you right now, I never asked anyone to get an abortion. I never pay for an abortion and it`s a lie.

UNIDENTIFIED MALE: What about the $700 check? Is there anybody you can remember sending that much money to?

WALKER: Well, I send money to a lot of people and that`s what`s so funny.


HAYES: I`m not sure I send money to a lot of people is your best defense there, Mr. Walker. Ironically, the best defense of Walker was kind of out accidental, a tweet by a Georgia conservative kind of Republican operative. He said, I thought we all knew this. And also, old news and people do change over time.


Yes, people do change. The problem comes from when that who cares argument comes from those figures on the right who are trying to criminalize abortion, who are saying and let`s be very clear here, OK, the contention, the moral principle is that abortion is murder. Which is to say, Herschel Walker, the accusation goes, paid to have his child murdered in their view. Do they actually believe he paid to have a child murdered? Do they believe that`s the severity of the accusation. They`re not acting like it. Maybe they don`t believe that.

According to Daily Beast, in fact, Walker pressed for the abortion because it wasn`t time for him to have children. Now, because I personally believe strongly in abortion rights, I think any reason a woman chooses to have an abortion is none of my business. But Republicans don`t want to extend that same chance to say, oh, I don`t know, a 10-year-old girl who has been raped by a family member and has to flee her state to get an abortion, impregnated against her will at the age of 10, probably not the right time for her to have a child. Too bad, no.

That`s where the life gets really important. That`s where it`s really important to them that she`d be forced to have that kid. That`s where Herschel Walker and the Republican Party are going to force her to have it. That`s the true scandal at the heart of this story.

Joining me now, Roger Sollenberger, the reporter who broke this story for The Daily Beast. Roger, it`s great to have you on. This is a remarkable bit of reporting. I want to just first start by saying, you know, Walker denies it. There was a threatened lawsuit. Do you stand by your reporting?

ROGER SOLLENBERGER, REPORTER, THE DAILY BEAST: Yes. I can`t comment on anything with pending litigation, but I do say that we stand by our reporting 100 percent.

HAYES: Can you give me a little more context? Obviously, the woman at issue is quoted in your story about her motivation for coming forward and speaking to you?

SOLLENBERGER: Yes, I want everybody -- first and foremost, I`m not being a like, whatever about this. I really mean it. This woman is incredibly brave. I think that we all know how deeply personal and sensitive this issue is. And for her to come forward and tell her story, and not only that, but to tell her story to a male reporter, to trust me with that, is pretty remarkable for me.

And I don`t want anyone to lose sight of that. In fact, my highest hopes for this story is that this inspires other women to come forward who have some more tales about hypocrisy in the Republican Party, right? But, you know, for me, I think that the woman`s story is -- it`s just remarkable in a number of ways. And the corroboration that she was able to bring for it is really incredible, right? She`s -- it`s a reporter`s dream.

If you asked a reporter, you know, how would you -- the ideal version of this story, could you describe it to me? They say, well, we would want a receipt from the abortion clinic. It`s like, well, OK, check. We got that, OK. We would like to see some form of payment. It`s like, well, we do have that. We have this check from -- personal check from Herschel Walker that he signed for $700. It`s an amount she ballparked, by the way, taking into account both the cost of the procedure and incidentals related to it.

And then we also have a get-well-soon card that he tucked the check into, she says. And we have that. We printed it out on the website. It`s a remarkable amount of documentation. It`s really just the ideal version of the story. We`re quite proud of it.

HAYES: Yes, and I want to say here, just for this is a sort of a little bit of a journalistic point to make, but I think worthwhile to say. And again, I can`t -- I haven`t independently verified this, and I can`t vouch for the story. All I can do is read your reporting and the corroboration that you`ve introduced to it. But there`s a reason that this is a difficult set of stories to report on. And this has to do with the entire post-Dobbs landscape. This is an intimate, personal, intensely private decision that a person makes.

And I`m not -- I don`t want to put your words in your mouth, but if you just had her telling you the story and no other corroboration, it would be a hard story to run, I imagine.

SOLLENBERGER: Yes, it would be incredibly difficult. I mean, we corroborated through a friend of hers she told at the time, right, who took care of her. A male friend, by the way, who took care of her after the abortion. He told us the same details that she did completely independently. But yes, you know, she was able to provide documentation.

I think that there is a distinction between this type of story and your -- you know, the MeToo story, right, coming out. Like, you need to be able to provide something for us to back it up and she was able to or some sort of independent corroboration. It`s a very difficult story to tell and this one was in a position to tell it. And I really hope that others are too.


HAYES: Yes, one of the things that you`re quoted in the piece, and I`m just going to read this. And again, this is the state of view of Herschel Walker about the decision to terminate pregnancy. To say it is OK for a woman to kill her baby when God said, thou shalt not kill. And I said, you know, I can`t. I can`t square it. Walker said at a conservative Christian values roundtable this August. I can`t get around that.

I can imagine how that must have sounded in the ears of the woman who says that she had an abortion at his urging.

SOLLENBERGER: Yes. After Walker put out his denial, she actually told me and I put this out on Twitter, it`s not in the report, but she said, it is most certainly not a lie. She is emphatic about that.

HAYES: Yes. And I imagine also, the tremendous risks she`s taken in trusting you with the story, and also her identity, which you can imagine as we`ve seen time and time again, when people are elevated in the public eye, if their identity is revealed, can be dragged into all sorts of nonsense. And I can understand her desire to be -- to be kept out of that.

One other aspect that this is interesting is -- and you saw it a little bit in that one sort of Georgia political operative we mentioned saying, well, I thought everybody knew this. Politico runs an interesting sort of backstory context piece today that the allegation was brought to the attention of those working on Walker`s behalf, and part as a means of discouraging him from running. So, this is, in some ways, its own kind of quasi corroboration that there was a sense this was out there. His team downplayed --

SOLLENBERGER: I think you`re jumping the gun.

HAYES: Go ahead.

SOLLENBERGER: Yes, I don`t -- I just -- sorry, I didn`t mean to interrupt you. I`m sorry, man. I just think you might be jumping the gun to say that this is a corroboration of my story. I have no reason to believe that these allegations are the same allegation.

HAYES: Oh, I see what you`re saying. You`re -- it`s just not clear that the story they are concerned about is one and the same with the story that you have reported out.

SOLLENBERGER It`s highly possible that it is a different allegation.

HAYES: That is very clarifying. So, let me just say what a Politico reporter today is an allegation along these lines. The abortion allegation was brought to the attention of those working on Walker`s behalf in part as a means of discouraging him from running. His team downplayed the potential disruption that would cause. But according to one of those people, they did not outright deny it.

They`ve also seen this decision tree here. And the response to the story could have gone with the way that he`s dealt with the accusation that he put a loaded weapon to his ex-wife`s head, which he hasn`t denied and says he doesn`t remember or it was a long time ago and people change. In this case, they have chosen the -- that`s a full lie response. Roger?

SOLLENBERGER: Sorry, what was the question then? I`m sorry.

HAYES: I`m saying, they have chosen to say this is this is a lie. You guys have the reporting and that`s what it is right now.

SOLLENBERGER: Yes, yes, absolutely. You know, I`d like to point you back to a report that I did in July about Herschel Walker. And I reported about some children who had out of wedlock right. The reports were newsworthy because Herschel has been saying that, you know, he`s cracking down on absentee fathers in the Black community.

But he, apparently according to my reporting, a campaign source told me this, that he had lied to his own campaign when they asked him if these children were out there. He revealed them on an FBI background check. But when his own campaign approached him with a question that I had, he lied to them not once, but twice, right?

So, this is the type of person that the campaign is dealing with. And this is a person who enters a race, by the way -- I understand there`s questions about the Republican apparatus that supporting him that`s propagating this. I get that. But also, there`s a question about Herschel himself. Why did he choose to get in this race knowing that this was out there? I don`t understand.

I think that, you know, telling detail in the story that we reported is that a top campaign surrogate from the Walker campaign has been in touch with the woman with a woman that told me about the abortion recently, as recently as late August, and that they have asked this woman repeatedly to vouch for Herschel Walker`s character. This is the type of campaign that`s being run. This is the candidate who got into the race.

I don`t know why. And I think that question might never be answered, but it`s one worth really, really considering.

HAYES: That is a really, really useful context. Roger Sollenberger, thank you very much.

SOLLENBERGER: Thanks, Chris. I appreciate it.

HAYES: Coming up, with exactly five weeks until Election Day, will candidates like Herschel Walker, who as you heard from Mr. Sollenberger is perhaps not the best, sink the Republican Party`s chances or just no consequences in the party of Trump. Does it not matter anymore? David Jolly, Symone Sanders Townsend join me next.




SEN. MITCH MCCONNELL (R-KY): I think there`s probably a greater likelihood of the House flips than the Senate. Senate races are just different. They`re statewide. Candidate quality has a lot to do with the outcome.



HAYES: We`re just 100 days out from Roe v. Wade being overturned. A Supreme Court decision that has resulted in both huge political shockwaves and just tangible shockwaves in the lives of millions of women in the lead up to the Midterm Elections. Now, we are seeing firsthand just how toxic this decision could be for Republicans running in the Midterms. Take for example, the latest scandal engulfing Trump-endorsed Senate candidate Herschel Walker who despite his anti-abortion with no exceptions platform allegedly paid for an ex-girlfriend`s abortion back in 2009. Walker denies these allegations. NBC News has not verified the story independently.

Now, this is not the first scandal for Walker and yet he is in a dead heat with Democratic Senator Raphael Warnock. It`s a super tight race. Multiple polls showing them a statistical tie. One question is will this story change that? Does candidate quality actually matter like Republican Leader Mitch McConnell said or will Republicans literally vote for whoever Donald Trump tells them to.

Symone Sanders Townsend worked on both Senator Bernie Sanders 2016 presidential campaign and President Joe Biden`s 2020 campaign. She of course is the host of "SYMONE" on Peacock and MSNBC. David Jolly is a former Republican Congressman from Florida. And both join me now.

Let me just start with you, David, from the sort of Republican perspective. I mean, there`s two ways to think about this in terms of the political fallout. One is, nothing matters, people are going to get into the bunker. The other is it`s a really tight race and small margins matter. Where are you on this?

DAVID JOLLY, FORMER FLORIDA REPUBLICAN CONGRESSMAN: Yes, I think a little bit of the latter. I mean, look, Mitch McConnell is burdened with terrible candidates in Georgia, Ohio, Arizona, and Pennsylvania and -- but these are tight races where just a little bit of a nudge could swing the race. And I think the issue is remarkably, even with bad candidates, it`s not actually the substance of the issue.

And hear me out on this, Chris. We went through the era where extramarital affairs would doom a candidate, and then it was did you smoke weed or not? Honestly, I don`t think many people today are surprised by a GOP candidate who paid for mistress` abortion. I mean, I just -- I don`t think that shocks people`s conscience, whatever you think of the fundamental issue.

What they`re -- what they`re amazed at is the audacity and the hypocrisy of someone taking a different political position or not just owning the truth. If Herschel Walker is in deny, deny, deny mode, and yet there`s another woman as we might have just learned in your last segment, that`s actually enough to begin to sway the case if he loses the trust of Republican voters in Georgia.

HAYES: I think that`s such an important point to separate out those two, Symone. There`s two -- there`s a bunch of different tacks just as -- we`re just talking now at a kind of technical level, right? If you`re working on the campaign, you`re in the war room, right? The night this breaks, like, what is the move here? They have gone with deny. I find the reporting pretty persuasive. I don`t find Walker to be particularly credible given some -- you know, the other context. Now, you`re pinned to that. And that seems like a much higher stakes way to go.

SYMONE SANDERS TOWNSEND, MSNBC HOST: I mean, the very high, Chris. Look, I had a rule when I worked as a spokesperson for different candidates. I would never lie, OK. There`s just -- and I would -- and I would not continue to work for someone that asked me to lie. So, I do think that the people working on not just Herschel Walker`s campaign, but any campaign out there really need to take a look at what their candidates and these campaigns are asking them to do.

Look, I really think that the question on the table here is, can you trust what these candidates are saying. And that goes directly to the heart of the matter is because if you get elected, telling me you`re going to do one thing, I as a voter want to believe and know that you are going to do it. The reason this matters for Herschel Walker, the reason I believe that this is going to be a conversation and a topic of conversation in that debate between Herschel Walker and Reverend Warnock coming up on October 14, is because the question on the table is, if you send Herschel Walker to the United States Senate, can voters trust him to do his job?

And right now, voters don`t know what Herschel Walker believes. If he believes that folks should be able to get an abortion if your mistress gets pregnant, honey, OK. But we don`t know what to believe because he`s been out here telling people that he believes no exceptions -- no abortions and no exception.

That`s such a great point. And, you know, I was so struck David by the Rick Scott statement today. He runs the committee that is sort of in charge of the Senate campaigns. And he says, you know, when Democrats are losing, they try to smear their opponents and Herschel Walker is winning. He says, this is just like the smears they attempted Brett Kavanaugh and Clarence Thomas, and it will not work.

And what was so striking to me is that well, no, it`s only in your perverse worldview that this is wrongdoing of that kind. This is a totally different thing. You`re the one who says it`s essentially paying for a child to be murdered. Well, other people don`t believe that. We don`t -- you know what I mean? Like, it`s not -- but you`re hung up on that.

JOLLY: Which is why the issue is trust and hypocrisy. Look, the trust and hypocrisy issues are so important because the flip side of that coin is a malleable unprincipled candidate who can raise a ton of money is exactly the GOP senator that Mitch McConnell and Rick Scott wants.


HAYES: Yes, exactly.

JOLLY: So, this doesn`t bother them, right? They actually want a Herschel Walker in their caucus because he`ll do whatever they tell them to do. And these are incredibly expensive races where you need a candidate like Herschel Walker. But you`re right. The issue is trust and hypocrisy, and that`s the opportunity for Warnock and Georgia Dems to prosecute that case in the last five weeks.

HAYES: Well, and there`s also -- I do think, Symone, I mean, when we look at the polling, right, I do think abortion remains a high salience issue. I think there`s a little evidence that the further we get from the Dobbs decision itself, there`s some weighting of that, that`s just sort of the national passage of time. I was struck by this as I mentioned in the opening that that that enraging story of a girl in Ohio who had to flee to another state to secure an abortion.

Cincinnati Inquirer reporting this today that they went and ran the numbers. In 2021, there are 538 children in the state who legally obtained abortions in Ohio, including 57 who were younger than 15 years old. The age of consent in Ohio is 16 years old, so 15 who were you know, by law, they were impregnated against their will and without their consent. Those are the real terms as we`re talking about the casual and get-well card. And I do think it`s also an opportunity to reassert the centrality of the basic principle of women having control of their own bodies. That I think is probably a winning issue for Warnock, even in a tightly contested state. What do you think?

SANDERS: I think so as well. Look, part of the reason I will note that this is a tight race. You cannot underestimate the fact that Herschel Walker is a household name and Giorgio. He is a celebrity. He`s a hero to so many people. And there`s some people that no matter what he does, they don`t care. But there are people in Georgia who are Republicans who maybe don`t even align with the political party. Women who when they go into the doctor`s office, Chris, when they sit there, they want to know that what they decide with their doctor is the final decision. And Georgia is in one of the many states in this country where that is in fact not the case.

HAYES: That`s right. Symone Sanders Townsend and David Jolly, thank you both.

JOLLY: Thank you, Chris.

HAYES: Still ahead, why is Republican Senator Ron Johnson continuing to insist to this very day, to this very day, that the people who attack the Capitol weren`t armed. That`s next.



HAYES: Before the seditious conspiracy trial from members of the far-right group the Oath Keepers even began yesterday, the judge was asked to weigh in on whether hand grenades found in an RV were admissible as evidence because the vehicle they were in was used by a family including their dog, leading the judge asked "was it the dog`s hand grenade?"

On day one of the trial, prosecutors told the jury about the weapons stashed in a nearby hotel in Virginia. Highlighting the quick reaction force the group set up across the river scene here unloading "at least three large carts worth of gun boxes, rifle cases, and suitcases filled with ammunition" according to court documents. They detailed how the Oath Keepers showed up to the Capitol on the sixth in paramilitary gear carrying chemical sprays.

And we know from previous court cases, the rioters used, and I quote here, stun guns, pepper spray, baseball bats, and flagpoles to attack police. Some of them even carried guns on them or had firearms nearby in their vehicles. But even with all of that on the record, there are still people including members who were inside the Capitol that day trying to wave it all away, downplay the insurrection.

Take Ron Johnson, and actually the United States Senator which today, today is still ignoring all the evidence and defending the vicious rioters.


SEN. RON JOHNSON (R-WI): I asked the question of the FBI agent who did a hearing on this. I said how many firearms were confiscated either in the Capitol or on Capitol grounds? I don`t know the answer. For all I know, it was going to be thousand. No, zero, zero. Now, some of the protesters did teach us all how you can use flagpoles, that kind of stuff as weapons. But to call what happened on January 6th an armed insurrection, I just think is not accurate. You saw the pictures inside the Capitol, I saw that day. The armed insurrectionist stayed through the rope lines in the Rotunda.


HAYES: Well, hopefully, Senator Johnson was paying attention today on day two of the trial when we learned about just how violent the Oath Keepers wanted the day to be. That`s next.



HAYES: Today, in the second full day of the Oath Keeper seditious conspiracy trial, prosecutors went through the extensive communications between members of the far-right group, particularly their leader, Yale Law School graduate and dress-up military gang leader Elmer Stewart Rhodes III. Rhodes said, "Trump has one last chance right now to stand. But he will need us and our rifles too. But will he finally act." Adding, so will you step up and push Trump to finally take decisive action? That`s what we must do now. And then, if you still refuse to do his duty, we will still have to do ours and we will.

Ryan Reilly is a justice reporter at NBC News, has been in the courtroom reporting on this trial. And he joins me now. Ryan, great to have you back again. What did we learn today in day two of this trial?

RYAN REILLY, NBC NEWS JUSTICE REPORTER: You know, I think the biggest thing to me was that the FBI missed the ball on this one because the FBI had a tip about this actually before any of this took place. After that initial November meeting that they had on November 9, they actually got a tip. Apparently, the recording was available to them from someone who was concerned about this, but there`s no evidence that the FBI reviewed that until far after the January 6 attack.

And it`s pretty -- it`s pretty, you know, damning evidence that they`ve been able to put forward in terms of what they`re discussing. I mean, Stewart Rhodes in this meeting very early on in November is talking about this entire idea that the QRF, the Quick Reaction Force outside of DC is only going to be on standby and will only come into DC on the President`s orders. And he says, that`s what gives them legal cover. He literally says it`s legal cover in this -- in this recorded phone call.


He also had mused about how he thought the FBI was already listening in to them already. But you know, he -- I think he was over-asserting their aggressiveness necessary or somewhat, because that wasn`t the case. They weren`t as on top of this potentially as they should have been in retrospect.

HAYES: Yes, I just want to drill down on this. There`s a meet -- there`s a phone call he convenes. When does it -- pretty early in November, right? Pretty soon after the election?

REILLY: That`s right. Yes, November 9, the go-to-meeting, 103 people on the call pretty early on. It sort of lays this out. Now, the --

HAYES: Let me stop you there. So, someone -- our understanding of this is that there was a third -- there`s someone who recorded the phone call that early, November 9th and sends it to the FBI as a tip being like, hey, guys, bunch of people plotting an insurrection, maybe armed. You might want to check this out, right? I mean, that`s what we learned today.

REILLY: Yes, yes. And no -- and no indication that was taken -- you know, taken out. We don`t -- we don`t know fully what happened behind the scenes at the FBI, whether that was something that was protect -- they thought that, you know, was perhaps protected, but there`s no indication that the FBI took any action off of that.

I think that`s sort of the takeaway. You know, the agent who was testifying first pick this up in March of the next year, so several months after, or two months after the January 6 attack had already taken place when they`re starting to shape this entire plot together. And, you know, there -- there`s a lot of former law enforcement folks in Oath Keepers. That`s what they`re sort of all about.

So, it`s not entirely surprising that someone might have, you know, grew a little backbone, I suppose, and said, hey, this is not looking great even if they lined with them politically to a certain extent. But, you know, that`s -- we haven`t seen any indication of action thus far even though a lot of Oath Keeper folks defense attorneys have said, you know, that there are these -- there are confidential human sources. But I think what that more means is that not necessarily that they had someone in, you know, necessarily embedded at the time that they had someone subsequently to basically start turn state`s witness so to speak and are now cooperating with the investigation.

And that`s what we expect to hear some testimony from some of those cooperating witnesses coming up, including an individual who says that he heard Stewart Rhodes trying to get in touch with Donald Trump on the night of January 6. That`s one thing I`m really looking forward to and really be interested in, along with, of course, Rhodes` testimony in his own defense which he is expected to take the stand, probably one of the first witnesses once it comes time for the defense to take up their case.

HAYES: Yes, this is -- this is Rhodes in November 2020. "We`re in an era now where everything you say is being monitored. By now, this phone call is being recorded by the NSA -- Excuse me -- FBI and CIA, I`m sure. And everything you say can and will be used against you. So, you guys need to have discipline. Don`t make it easy for them to pop you with a conspiracy charge."

I mean, the awareness -- the two things that come out here, A, the awareness they`re walking a very fine line that looks like conspiracy to commit sedition, and B, that so early on, a huge part of the plot looks pretty baked in and so alarming that someone tips off the FBI.

REILLY: That`s right. Yes, I mean, I think that is. They are basically speaking in coded language. So, to a certain -- he basically lays that out. He says, hey, you know, this is our legal cover for this. But there -- you know, there are a lot of intervening events right there. Then there`s the - - there wasn`t that plot that`s really centered upon January 6 yet. It was more just sort of this broad idea of opposing the peaceful transfer of power, But they hadn`t really focus in on January 6 yet, because that was so early. And I think that that`s what prosecutors are sort of dealing with here, because there wasn`t the central focus, this date that they said, hey, we`re going to go to the Capitol. It was more ambiguous in that in the beginning stage, it was pretty -- as the plot began to take shape -- take shape. So, that`s what the defense is essentially pressing on and say, hey, none of this is about really the Capitol, this is more sort of --

HAYES: General, yes.

REILLY: Yes. So, I think that`s basically the conflict we`ve seen between the defense and the prosecution of thus far.

HAYES: All right, Ryan Reilly, thank you very much. Up next, the newest Supreme Court Justice jumped right in on the first week of the new term.


JACKSON: I don`t think that the historical record establishes that the founders believed that race neutrality or race blindness was required.


HAYES: How Justice Ketanji Brown Jackson use the conservative favorite play against them next.



HAYES: This is the first week of the Supreme Court`s new session, the first week its newest member Justice Ketanji Brown Jackson is on the bench. Because the court decided to continue a practice starting during the pandemic of live streaming the audio of its hearings, we are getting to hear the justices in oral arguments.

Today, we got to hear Justice Jackson use a favorite tool of conservatives, the judicial approach called originalism against them. Originalism is the idea we should interpret the Constitution strictly by what the authors of the document at the time intended what is public meaning was at the time. So, it`s fun to wonder what the originalism the court were thinking when our country`s first ever Black woman justice used originalism to argue against a conservative interpretation of the Constitution.

The case is from Alabama, where Black people make up about 27 percent of the population but the state adopted a congressional map where only one of the seven districts, about 14 percent is majority Black. When Alabama`s lawyer argued the Constitution requires congressional maps to be "race- neutral," Justice Jackson said this.


JACKSON: I understood that we looked at the history and traditions of the Constitution at what the Framers and the Founders thought about. And when I drill down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment in a race-conscious way, that they were in fact trying to ensure that people who had been discriminated against the freedmen during the reconstruction period were actually brought equal to everyone else in the society.



HAYES: Joining me now is one of the people who argued the case today before the Supreme Court, Deuell Ross, who spent the last nine years working at the NAACP Legal Defense and Educational Fund focusing on voting rights cases in Alabama. Deuell, let me first start -- if you could just explain - - this is a Voting Rights Act case, section two of the Voting Rights Act? What is the -- what is the claim that you folks are making about these congressional maps?

DEUELL ROSS, SENIOR COUNSEL, NAACP LEGAL DEFENSE FUND: The claim is that even though Black voters in Alabama make up about 27 percent of the population and White voters only make up about 63 percent of the population, White voters vote in such a way to never vote for the same candidates as Black voters. And so, White voters control about 85 percent of Alabama`s congressional districts, six of the seven and Black voters only can have an opportunity to election one district.

So, what we`re really asking for is for Alabama to stop discriminating against this very specific Black community made up of about 18 counties called the Black Belt, and to draw it in such a way that would give black voters an opportunity in a second congressional district.

HAYES: Yes, the Black Belt is an area where specific kinds of soil meant that you had very high levels of plantations and enslave folks back in the day that is carried through to high levels of Black population today. And you`re basically saying, look, the Voting Rights Act requires, right -- I mean, requires the state to give black folks a shot at this level of representation and the state of Alabama is in violation of it.

ROSS: Exactly, exactly. And this is something that, you know, Alabama is arguing that, look, this is the way that we`ve always done it. We`ve been, you know, breaking up the Black Belt since at least 1972. But if you go back to 1972, George Wallace was the governor of Alabama. Alabama was still passing literacy tests and Black voters were just becoming registered to vote in large numbers. And that`s when Alabama decided to start making decisions that made it even more difficult for Black voters to have representation in Congress.

HAYES: What are the ramifications? We have seen various portions of the Voting Rights Act whittled away, gutted by the conservatives on this court. What are the implications here for this case, for this section two of the Voting Rights Act? What would it mean if the plaintiffs here were to lose?

ROSS: You know, section two of the Voting Rights Act is, you know, one of the key provisions of the act. It`s what has given us representation in Congress for people of color, not only in Congress, but in city councils and school boards all across the country. And what Alabama is arguing is that anytime you use or even think about race and any kind of redistricting, then that itself is unconstitutional. And so, it really make it extremely difficult if not impossible to have districts in which Black, Latinx, Asian any people of color have representation in Congress or any other level of government.

HAYES: Yes, I mean, there are just two people -- folks are clear here. The representation that we tend to have is born of the Voting Rights Act, section two, which creates majority districts. Because if you have 25 percent of the population, that`s African American state like Alabama, you could just carve up districts such that they`re not a majority in any of them, and then you just get all white representatives.

There was a revolution in American politics that produced a world in which we have non-White representatives due to this section of the Act. Am I -- am I misstating the history here?

ROSS: No, that`s exactly right. You know, Black people and other people fought and died. You know, John Lewis was beaten on the bridge in Selma, Alabama in order for us to get these rights, this opportunity to four states in some instances to draw districts in which Black and other voters have an opportunity to elect their candidates of choice. And, you know, those -- Alabama is essentially sort of trying to turn back the clock to a time where, you know, you can`t even draw those districts.

HAYES: It just seems impossible to argue that under section two of the Voting Rights Act, you can`t be race-conscious when that`s obviously -- like, what am I missing about their argument here?

ROSS: You know, I mean, it`s not only obvious part of the Voting Rights Act that it sort of requires this remedial action, but it`s an obvious part of the 15th Amendment. The 15th amendment is the only part of the Constitution that mentions race, and it prohibits racial discrimination in voting. And that`s because Congress -- and it gives Congress the power to enforce that. That`s because, obviously, we fought a civil war and then had a civil rights movement 100 years later because Black voters were being disenfranchised and their voices were not being heard.

HAYES: As Justice Ketanji Brown Jackson I thought pointed out very well today. Deuell Ross who was before the Supreme Court early this morning and stayed up be with us tonight, I appreciate it. Thank you.

ROSS: Thank you. Thank you for having me.

HAYES: That is ALL IN on this Tuesday night. "ALEX WAGNER TONIGHT" starts right now. Good evening, Alex.