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Transcript: All In with Chris Hayes, 9/2/22

Guests: Adam Serwer, Renato Mariotti, Dana Nessel


President Joe Biden raises alarm about the extremist threat of Trumpism in his speech last night and calls on Americans to resist threats to Democracy. Empty Classified folder appears to be on display at Trump`s presidential-themed bar in New York. Pat Cipollone and Pat Philbin showed up to court before the grand jury. The flailing Senate campaign of T.V. Dr. Mehmet Oz is getting really desperate because right now his Democratic opponent John Fetterman has essentially trolled Oz into an eight-point polling deficit. The warning President Biden issued last night about the Republican threat to the very foundations of American democracy is not hypothetical, it`s happening in Michigan.


JOY REID, MSNBC HOST: Because my pick as well happens to be Serena M and Effing Williams because she is the baddest in the game. Game set match, Serena Williams. You won the week. Thank you Gyasi Ross. Thank you Atima Omara. That`s never happened before on Who Won the Week. That`s actually kind of amazing. She literally won the week.

We should also make a runner-up of Dark Brandon because Dark Brandon is the runner-up for Who Won the Week because he secondarily once a week. Because Dark Brandon went off this week.

That is tonight`s "REIDOUT". ALL IN WITH CHRIS HAYES starts now.


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

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Donald Trump and the MAGA Republicans Representative extremism that threatens the very foundations of our Republic.

HAYES: The president confront of fascist threat as his predecessor vows to free of violent mob.

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: I will be looking very, very strongly at that pardon.


TRUMP: Full pardon.

HAYES: Tonight, the extreme and divisive truth of our American reality. Then from potential national security concerns to possible tchotchkes at Trump grill. Chuck Rosenberg on what`s missing from classified folders found at Mar-a-Lago. And he was among the very few people in the room where it happened.

PAT CIPOLLONE, FORMER WHITE HOUSE SPECIAL COUNSEL: I walked in. I saw General Flynn. I saw Sidney Powell. The Overstock person, I`ve never met -- I never knew.

HAYES: What we know about what Pat Cipollone told the grand jury investigating January 6 today when ALL IN starts right now.


HAYES (on camera): Good evening from New York. I`m Chris Hayes. As you may have seen, President Biden deliver speech in Philadelphia last night. We covered it live. The speech outlining the threats to our democracy and what he called the battle for the soul of our nation. Now, it was, of course a political speech as all addresses by a sitting president inherently are.

But in the aftermath, one of the two major parties dominated by the MAGA authoritarian faction the President was talking about has been whining and moaning about how politically divisive it all was. Listen to the Republican Leader of the House, Kevin McCarthy, who actually started whining about the speech before Biden had even delivered it.


REP. KEVIN MCCARTHY (R-CA): President Biden has chosen to divide, demean, and disparage his fellow Americans. Why? Simply because they disagree with his policies. That is not leadership.


HAYES: Say what your well about Kevin McCarthy, one of the finest orders of his generation. Senator and podcaster Ted Cruz of Texas echoed McCarthy tweeting about how the President "vilified millions of Americans in a divisive and angry speech, and there was just a lot more where that came from. Now, to be fair, they are actually not wrong about that core critique in a certain way. It was a divisive speech because some level of division is necessary when there is a conflict of this magnitude between two parties.

One party wants to preserve the democratic constitutional order of our American democracy, and the other seeks to upend it. That may sound dramatic or hyperbolic or even extreme, but it is extreme because the truth is extreme. That is exactly what we`re facing as President Biden laid out last night.


BIDEN: Democracy cannot survive when one side believes there are only two outcomes to election. Either they win or they were cheated. And that`s where the MAGA Republicans are today. They don`t understand what every patriotic American knows. You can`t love your country only when you win.


HAYES: That line stuck with me. It`s the dangerous distortion that Donald Trump helped create, and that his followers believe. Elections are only legitimate if he and Republicans win, and more deeply, that power of the state, the power of the state is only legitimately wielded by Republicans even when they are in a minority. That view that only we shall rule is toxic, insidious, and completely at odds with living in a democracy. President Biden spoke about the dangers of this lie in his speech.


BIDEN: And they see their MAGA failure to stop a peaceful transfer of power after the 2020 election as preparation for the 2022 and 2024 elections. They`ve tried everything last time to nullify the votes of 81 million people. This time, they`re determined to succeed in thwarting the will of the people.


HAYES: Again, this is just plainly true, a factual statement of where things are. They are trying again to destroy the American experiment. January 6, was the first-ever violent insurrection in this country that launched by a sitting president against his own government to stop the peaceful transfer of power. It only happened once. It was the first time the peaceful transfer of power was interrupted since, of course, the great crisis of the republic in 1861. Those are just the plain facts of the matter.


And after that attempt failed on January 6, a majority of Republicans in the House Representatives -- let us not lose sight of this -- 147 of them voted to overturn the results of the election. They voted on behalf of the mob and the coup and Donald Trump and against the voters. They voted for minority rule for the President to stay in power against the will of us, we the people. And over the past two years, they have defended and facilitated the efforts of their leader as he plots quite openly another coup.

According to The Washington Post, more than half of the Republican winners so far in primary races for positions that hold power over elections have embraced Donald Trump`s false claims about his defeat two years ago. That`s about 250 people who deny the legitimacy of Joe Biden`s presidency and could soon be in position to help Trump overturn the next election.

But these minor Republicans, as the President repeatedly call them last night, are nowhere near the majority of this country. President Biden spoke for the majority of Americans last night and we see from the hysterical whining about his speech the MAGA Republicans who are indeed a minority are flailing. They know they no longer have a lock on the Midterm elections. They`re leader is in increasingly dire legal peril. We saw Trump himself wildly lashing out yesterday, just hours before President Biden`s speech, when he dangled pardons for the insurrectionists.


TRUMP: I will tell you, I will look very, very favorably about full pardons. If I decide to run, and if I win, I will be looking very, very strongly about pardons.


TRUMP: Full pardons.

UNIDENTIFIED FEMALE: That`s well-deserved.

TRUMP: I think that`s probably going to be the best because even if they go for two months or six months, and you know, they have sentences that go longer than that.


TRUMP: But we`ll be looking very, very seriously at full pardons because we can`t let that happen. What`s happened here, and I mean full pardons with an apology just too many an apology.



HAYES: Not only just Donald Trump not apologize for leading an attempted coup on January 6, he wants everyone to apologize to him, to his accomplices. He wants to pardon the criminals who savagely beat officers, infiltrate and overrun the Capitol, desecrated the people`s house, threatened members of Congress and their staff, and chanted Hang Mike Pence.

The people who have gotten the longest sentences that he mentioned there were the most violent. Those are the ones he`s talking about when he wants to pardon. And we know from the investigations and charges filed against hundreds of them, they would have done far more damage if given the chance.

Yesterday, the President spoke about the threat posed by those people, the MAGA Republicans, and on the same day, their leader announced he wants to pardon the most dangerous elements of that seditious faction. So, yes, President Biden`s words may have sounded extreme and divisive. And that`s because we live in extreme and divisive times.

Adam Serwer is a staff writer for The Atlantic. He recently wrote about Trump keeping classified documents at Mar-a-Lago, in a piece entitled, If It Were Anyone Else, They`d Be Prosecuted. And he joins me now.

Adam, I thought that the routing things in the idea of there being a pro- democracy majority in the country was an important aspect of last night. It`s something that you`ve written about a lot that that is the fundamental issue here that this attempted minority rule, this attempt to subvert elections because you don`t win them is fundamentally continues to be a minority faction in American life that is intent on ruling from that position.

ADAM SERWER, STAFF WRITER, THE ATLANTIC: Look, there are always going to be people who have conservative economic beliefs, who are pro-life, who believe, you know, we should have less immigration, things like that. This fight is really about, do you believe that we should live in a country where only one group of people get to govern because they make up the true soul of the country. They`re the only real Americans and therefore they are the only ones who have a mandate to govern?

And what Donald Trump believes -- and this is a belief that, you know, he more or less adopted as a result of seeing it on Fox News.


SERWER: This is a belief that the minority of Americans have that they believe they`re entitled to roll no matter the circumstances, no matter whether they have a majority, no matter no matter whether they win an election. They believe because they are the only true Americans, they`re entitled to govern no matter what. And that is a very serious problem. It`s a very complicated one. And it`s not one -- you know, it`s not one you can solve easily no matter what path you take.


HAYES: Yes. And I thought about -- thought about -- you wrote this piece about the Alaska election. And the title was Republicans have only themselves to blame for the Alaskan defeat. That, of course, was the fairly shocking victory of the Democratic Congresswoman -- now-Congressman Peltola over Sarah Palin and Nick Begich. And you say the whining after that. Right now, they lost this election, and it`s -- the system is rigged.

The running -- you know, rank choice voting election system is not being evaluated on the basis of whether or not results in a fair election, but whether it produces a GOP victory. If it does not, the system is corrupt by definition. That conservatives are embracing majoritarian arguments to argue against rank choice voting is nevertheless illuminating because it shows they believe in majoritarianism only where Republicans can expect a majority. I thought that was a really good point.

SERWER: Yes, I mean, look, you know, people who think that the Electoral College is good because it overweights conservative votes in such a way that makes it easier for Republicans to win presidential elections suddenly saying that rank choice voting is bad because, you know, most people voted for a Republican. But this is -- you know, this is a red herring. And rank -- and rank choice voting, the majority -- the person who wins still has to have a majority.

The fact was that Republican -- people in Alaska, while they might have preferred a Republican, did not prefer the Republican on the ballot. When it was between Palin and the Democratic candidate, they preferred the Democrat because they didn`t want to see Palin in office. That was the majority of them. The attack on the system, as I said -- as I wrote in that piece, the attack on the rank choice system which was adopted by the very conservative voters of Alaska, you know, it was an attack based on the fact that Republicans simply lost the seat that they believe they were entitled to.

And that`s exactly the same attitude that led to what you were talking about in the assault on the Capitol. It did not matter that Joe Biden won the election. The fact that he drew from constituencies that they consider illegitimate, meant that his election was illegitimate. It didn`t matter how many million more votes he won. It didn`t matter that he won in the Electoral College, a system that very strongly favors Republican candidates. The fact that he was not representing true American constituencies meant that the peaceful transfer of power didn`t need to take place, and they could simply overthrow the government and install Donald Trump in power.

And Trump has continued to encourage this by, as you noted, say that, you know, if these people engage on political violence in his behalf, you will pardon them. He said, do whatever you need to do even if you get in trouble, I will protect you later. And there`s only one reason you do that, because you want these people to act violently.

HAYES: And there`s the -- there`s also this question, right? So, you know, when you -- when you point to Alaska, you say, yes, they chose -- they didn`t want that individual. You know, Palin ended up being too toxic. When you look at the polling right now, for instance, on things like, you know, should Donald Trump continue to be investigated, it`s 57-40, right? If you look at the polling on Roe, right, you get like 60-30 -- 65-35, in that neighborhood.

If Republicans -- I have come to the belief, and I`m curious what you think. If Republicans really truly huddled together and viewed their mission as a party, to win a popular majority in the country, 51 percent, not use the Senate and the Electoral College to try to like, get in there or use threats and intimidation, and it would be better for everyone. That they would force to abandon some of this because it genuinely is unpopular, and they could compete under normal terms. And yet, they will not do that right now.

SERWER: Yes, I mean, I think that is definitely the case. I don`t think it`s impossible for Republicans to win majorities. There are a lot of people with conservative views in this country, and not all of them are white, by the way.


SERWER: The reality is that Republicans have chosen to exploit the counter- majoritarian levers of the system in order to stay in power so that they do not have to be accountable the people who do not hold only those views that are represented on Fox News. That`s just the way that they want it. They would prefer not to be accountable to constituencies that might compel them to moderate their positions.

And when you look at like the Democratic Party, the Democratic Party, it`s not that Democrats are inherently more virtuous than Republicans. It`s that they are beholden to a constituency that is diverse, ideologically, racially, religiously. And as a result of that, they cannot engage. And as a result of that, in the nature of our system, they cannot engage in the kind of counter-majoritarian anti-democratic behavior that Republicans are engaging in right now.

HAYES: Yes, I think that`s exactly the nub of it. Adam Serwer, always great to get a chance to talk to you. Thanks for joining us tonight. I appreciate it.


Coming up, new filing sheds more light on the hundreds of classified documents Donald Trump stash in his re4tirement home, but also raises new concerns some of those documents are still unaccounted for. Chuck Rosenberg is here to talk about it all next.


HAYES: All right, so there`s a bar on the ground floor of the fifth avenue on the Trump Tower in Manhattan that was recently retrofitted. It`s called 45 Wine and Whiskey and it`s basically a Hard Rock Cafe knockoff where visitors can enjoy walls plastered with Trump presidential memorabilia that ex-president must have snuck out of the White house in suitcases.

If you go there, you can enjoy $25.00 cocktails and $45.00 cheese plates while sitting underneath a giant framed picture of Donald Trump and North Korean dictator Kim Jong-un. That`ll get you hungry, right? Or beside a photo of Trump holding a newspaper touting his acquittal in one of his impeachment trials.

Now, the centerpiece of the bar is this display case. It`s full of random knickknacks from Trump`s time in the White House, including a copy of the trade deal he signed, a space for seal, a Trump football, and this folder marked classified. Now, we cannot say for certain the reason Trump was hoarding documents in his Florida retirement home, but we do know that today Florida judge unsealed more information about the document seized from Mar-a-Lago, and according to a DOJ filing, the FBI retrieved more than 100 documents with classification markings ranging from Classified to Top Secret in the search of Trump`s property.

The document also lists hundreds of press clippings retained by the ex- president, as well as dozens of "empty folders with classified banners. That`s a weird one to say the least. Many people have been scratching their heads as to why Trump took so many empty folders marked classified. The truth is we don`t really know. We may never know. One theory that seems at least plausible, if only because it`s the dumbest possible reason, maybe he was hoarding documents at Mar-a-Lago to use them as decorations at his new hotel bar.

Chuck Rosenberg is a former U.S. attorney and senior FBI official. He`s been following Donald Trump`s potential legal trouble as closely as anyone. And he joins me now. That detail was the big detail that jumped out from the list that was unsealed today. What do you make of the piles of empty classified folder?

CHUCK ROSENBERG, MSNBC LEGAL ANALYST: Well, like you, Chris, I think it`s a bit of a head-scratcher. We don`t know if those folders were empty when they were taken out of the White House. We don`t know if they were emptied while at Mar-a-Lago. We don`t know if the classified documents strewn around Mar-a-Lago came from those empty folders.

But like the other stuff that the FBI found, it`s concerning because we know Mar-a-Lago is a huge counterintelligence target. And we know lots of people are roaming around. I understand that some of this stuff was under lock and key, but it doesn`t seem to have been -- well, I`m confident it wasn`t properly secured. So, yes, maybe it`s a decoration for his bar. It`s a head-scratcher. I agree with you.

HAYES: The last time I had you on, we were talking about, you know, the -- you know, the unsealing of that of the affidavit which was redacted and what evidence was presented in there. And we were talking about the fact that, you know, you say there`s probable cause of a crime. We searched, we find the evidence we were looking for, some form of it.

And you made the important point, right, that were you to prosecute and indict, you`d have to prove something more than just that, right? You`d have to prove that this -- that the individual who you`re prosecuting in this case were to be Donald Trump was the one who had control of those documents. He took them, he had them in his possession, he was the one doing the willful act here.

Since then, we`ve gotten more evidence, right, in the form of that brief filed by the DOJ that says some of the documents were in his desk. They were mixed in with his personal things and effects like his passports. And I wanted to return to you in terms of where you see that and that evidence in terms of building a case possibly against the ex-president?

ROSENBERG: Sure. It`s a great question, Chris. So, if the stuff is just in the basement, perhaps he can credibly claim that he didn`t pack the boxes or move the boxes or look in the boxes. When you put the stuff in his desk drawer, right, that helps you show more clearly, I think, as you said, the intent, right, willful possession, willful retention, whatever the statute may require.

And we do that all the time as prosecutors, right? The gun under the seat of your car is more likely your gun, more likely than the gun under the seat of your friend`s car. And so, the closer you are to the thing that we care about, the more likely it`s yours and the more likely -- or the more easily we can prove intent.

HAYES: There`s also the -- when you zoom back out, right? So, we`ve gotten all these details and when we got inside of filings. But it`s been interesting to watch a few Republicans, people that are supportive to the president, but who have been around classified documents and presidential records, state the obvious that whatever happened here, he never should have had these and they weren`t his.

Karl Rove said this the other day. He said look, whatever this is about, they`re not his to take. Then we also have now Bill Barr saying this quite clearly. Here`s what he had to say. Take a listen.



BILL BARR, FORMER U.S. ATTORNEY GENERAL: What people are missing is that all the other documents taken even if they claim to be executive privilege either belong to the government because their government records, even if they`re classified, even if they`re subject to executive privilege, they still belong to the government and go to the Archives.

And any other documents that were seized, like news clippings and other things that were in the boxes containing the classified information, those were siezable under the warrant because they show the conditions under which the classified information was being held.


HAYES: So, it`s been striking to watch people that do support Donald Trump and work for him, you know, but who know a thing or two about how they should usually go -- state the obvious, which is this is obviously a violation at the most basic level.

ROSENBERG: Yes, I mean, here`s my ridiculous answer, Chris. The law is the law, is the law. I mean, Bill Barr stated the law. For those of us who worked in classified environments, and maybe this will be helpful to your viewers -- I hope so -- we really take this stuff very seriously. And so folks might be looking at and thinking, oh, it`s not a big deal. And you know, at least they found it, and it doesn`t seem to have gotten out and he was the president after all.

But the value of some of these highly classified documents are not always apparent from the content of these highly classified documents. And that may sound weird, but I can explain that, Chris. There might be something in one of these documents that you read, and you think, oh, my, that`s sort of benign or I wonder why that`s classified. That doesn`t seem all that compelling or all that important.

And the information itself may not be, but the way we got it, maybe from a highly placed confidential source, or from an incredible technical penetration is. And so treating this stuff in a cavalier fashion without understanding the equities at stake, the sources and methods that might be exposed is a very big deal. I remember reading this stuff for the first time and having that exact question. This doesn`t seem all that sort of mind-bending. It was interesting, but it wasn`t, you know, extraordinary, until someone explained to me, what`s extraordinary is how we got it.

And so, the notion that this stuff is strewn about the house in different boxes, and there are empty folders, and some of it is in his desk drawer, and people are coming and going all the time from Mar-a-Lago is really bad stuff. It doesn`t mean it got out. We don`t know that yet. And the intelligence community needs to do a damage assessment. That`s really important to protect those equities I was just describing.

But Bill Barr has it right. It`s not his. And moreover, the stuff that`s not his, if treated in a cavalier fashion, can do great damage to the national security of the United States. That`s just a fact.

HAYES: To your point about the cavalier nature here, there`s some reporting at the Washington Post about the security concerns at Mar-a-Lago and these, you know, being in the basement. A person familiar with the club`s working who spoke on condition of anonymity describe regular movement from club facilities, the basement, and back. This is an operating property, this person said. There`s a kitchen and a guy who does pastries and a liquor cabinet. There`s a restaurant here. You see activity. A guy getting vodka to bring to the bar. A person going to get cupcakes to bring upstairs. So, I think safe to say not exactly a skiff in there. Chuck Rosenberg, as always great pleasure to talk to you. Thank you.

ROSENBERG: Thank you.

HAYES: Still ahead, we all heard the damning testimony Trump White House Counsel Pat Cipollone gave before the January 6 Committee. Today, he testified before a D.C. grand jury. Why his story is so important for the case against Donald Trump next.




PAT CIPOLLONE, FORMER WHITE HOUSE COUNSEL: I opened the door, and I walked in. I saw General Flynn. I saw Sidney Powell sitting there. I was not happy to see the people in the Oval Office.


CIPOLLONE: Well, again, I don`t think they are providing -- well, first of all, the Overstock person, I`ve never met, I never knew who this guy was.

Actually, the first thing I did. I walked in, I looked at him. And I said, who are you? And he told me, I don`t think -- I don`t think any of these people were providing the president with good advice.


CHRIS HAYES, NBC NEWS HOST: Some of the most explosive testimony from the January 6 committee`s hearings this summer, Donald Trump`s White House Counsel Pat Cipollone giving a sliver of his version of the coup-plotting before the insurrection, and it was big news, we found out that Cipollone and his deputy White House Counsel Pat Philbin, we`re going to testify before a criminal grand jury investigating the attempted coup.

Well, today was the day that Cipollone and Philbin showed up to court walking in the door with cameras watching.

Cipollone spent nearly 2-1/2 hours before the grand jury while Philbin spent about two hours in there. So, what does all this mean for the trajectory of the investigation?

Renato Mariotti is a former federal prosecutor, legal affairs columnist for Politico Magazine, host of the news and legal analyst podcast On Topic and he joins me now.

So, Renato, the first thing I think just to note here is, after the January 6 hearings, we saw increased activity in this grand jury that clearly was investigating high levels of the coup-plotting because they were talking to Marc Short and Greg Jacob, what`s the significance of them finally getting Cipollone and Philbin in to testify before an actual grand jury?


RENATO MARIOTTI, LEGAL AFFAIRS COLUMNIST, POLITICO MAGAZINE: Well, I`ve got to say, Chris, this is a witness that we have a very good idea of the value of because as you mentioned a moment ago, we are at a sliver of his testimony. And I think the key word there is sliver, there were so many times during the January 6 hearings, where they would ask him a question and he would say privilege, or there`ll be an objection he wouldn`t answer. He would talk about his own beliefs but wouldn`t talk about what he told Donald Trump, that`s going to all change in front of the grand jury.

The case is very clear on the D.C. circuit that the grand juries need for that testimony, Trump`s any executive privilege, or certainly any attorney client privilege for a lawyer in the government.

So, he`s going to be able to provide that and I think it`s going to be really important testimony because I really think Donald Trump saw him as his own attorney, and is somebody who would be giving, you know, his own views for -- you know, directly to get frank advice.

So, I expect some really important and potentially explosive testimony coming from the former White House Counsel.

HAYES: Let`s talk about that grand jury, because right now we have a situation, there are two different -- well, there are three different legal cases Donald Trump faces. There is a grand jury that`s been impaneled in Fulton County, Georgia, in which Fani Willis has been calling lots of people, clearly investigating efforts to overturn the election in that state there in that county. Rudy Giuliani, you know, Newt Gingrich on January 6 Committee, I lose track of who.

Lindsey Graham, of course, has been subpoenaed there. So, you`ve got that. You`ve now got obviously the documents case, right, which we have read all these filings about what they think there was probable cause to investigate what crimes might have been committed.

Then, you`ve got the grand jury on January 6th, how do you see the timing of all these three? I mean, obviously, the DOJ is not going to do anything I think before the election. What do you make of what could happen in Georgia? What do you expect for the timelines for these three cases?

MARIOTTI: Georgia seems to be moving full speed ahead. I mean, that case is in its final stages. I think if there wasn`t an election, we would see an indictment or more indict -- start multiple indictments this year, it may be early next year due to the election, that case is certainly full speed ahead.

The January 6th case really seems to me to be in an early stage, because they`re still you know, for example, we just had a seizure of another John Eastman phone. I think that they`re starting in the core and perhaps working their way outwards.

So, and there`s a lot there, as we saw with the January 6 committee, you know, they had a great investigation and looks like they`re going to wrap up and then more -- there was more to chase down. We got more coming.

So, I think that`s going to take a while. But the documents case to me is the wild card. I mean, I have to say, Chris, the evidence looks very strong there. It`s much more straightforward to prove a documents case. It`s almost like a drug case in a way. You saw they had the photographs of the documents out there. It`s just if you have top secret documents in your basement, you`re in trouble. And that really is a lot easier to prove.

So, that`s the case that could go quickly. But, you know, we have this special master issue and you know, there still are some signs that this is in an earlier stage. So, those I think that`s the wildcard here.

HAYES: Yes, let`s talk about that one. And you wrote a piece about this, basically saying, it reminded you of drug cases you have prosecuted and that rather than a case like, you know, a mastermind of a criminal organization, a complex racketeering case, or financial crimes, or someone who was at the top of a drug organization working through a bunch of intermediaries and very complex cases, this was more similar to something that was more at the bottom, a run of the mill possession case. Explain that because I found that a sort of compelling argument.

MARIOTTI: Yes, so in a fraud case, or an obstruction case, it all turns on the defendant state of mind. You know, did the defendant have the intended to fraud? We all know he filed his tax returns. But can you peer inside his mind and determine what his intent was?

You know, we all know Trump fired Mueller, but did he do it for a corrupt purpose or not? We spent a lot of time, there`s been a lot of debates on this program and elsewhere about trying to figure out proof of Trump`s state of mind and infer it and this inept, but we don`t have a magic telescope.

Drug case is very simple. If you`ve got bricks, a heroin in your basement, you`re guilty. It`s very simple.

I mean, maybe you could argue they thought it was powdered sugar, maybe your wife put it in there, you had no idea, but it`s pretty tough. This is more like that kind of case. There are some differences to be sure, but particularly given the run-up here where there was a grand jury subpoena. He was notified many times that the government wanted this stuff back and it was still classified.

A lot of the other elements go away. And the question is just did he have the stuff or not? And so you see here, their (AUDIO GAP) documents, they`re looking at where they were in his office. That`s exactly why.


HAYES: Yes. And the firing of Comey I think is what you`re referring to before. Renato Mariotti, thank you so much. Appreciate it.

MARIOTTI: Thank you.

HAYES: All right. Still to come, Dr. Oz gets dirty in his quest to become a senator. Why the T.V. physician ended up slinging mug at two innocent men, next.



HAYES: The flailing Senate campaign of T.V. Dr. Mehmet Oz is getting really desperate because right now his Democratic opponent John Fetterman has essentially trolled Oz into an eight-point polling deficit.

Fetterman`s campaign is painting Oz correctly in my view as an out of touch New Jersey millionaire who`s done nothing to help actual residents of Pennsylvania and therefore has no business being a Senator.

And while much of Fetterman`s trolling has been relatively genial, at least by the standard of the political campaign when you`re from New Jersey, Oz`s messaging is getting outright nasty.

Just yesterday, he trotted out the age-old soft-on-crime attack Republicans have been using against Democrats since the Nixon administration, tweeting "Samuel Alamo was at a bar in Philly that was the site of a horrific shooting. Alamo was shot and killed. Dennis and Lee Horton were convicted in the murder and are now paid by John Fetterman`s campaign."

Whoa, well, I got to say, even for a Republican smear attack, this is shockingly disingenuous. So, here`s the actual story. According to brothers Dennis and Lee Horton, on Memorial Day 1993, they were out for a joyride when they picked up their friend a guy named Robert Leaf.

What they did not know was that Leaf had just murdered Samuel Alamo and was currently being pursued by the police. They were critically pulled over and all three men were arrested.

The police involved with the case of an accused of using a whole host of problematic tactics during the investigation, eye-witnessed the murderer, changed their story after prosecutors tried to pin the crime on all three of them, the Hortons as well.

And the district attorney`s case file which was not made available till 2018 "included note sitting Leaf is shooter and a police note indicating Leaf acknowledged his role all seeming to clear the Hortons".

The Horton brothers who are black refused to plea agreement because they said they didn`t want to plead guilty to a crime they did not commit.

They were ultimately convicted of second-degree murder and sentenced to life in prison without parole. By all accounts, the Horton brothers were model inmates who have steadfastly maintained their innocence.

And back in 2019, while John Fetterman was the head of the Pennsylvania Board of Pardons, he fought tirelessly on behalf of the men.

And in 2020, the board voted four to nothing to grant them clemency. They serve more than 27 years in prison and are now working on behalf of Fetterman`s Senate campaign.

Fetterman called Oz`s smear "sad and desperate", asking of his opponent "Does he believe that wrongfully convicted should die in prison?"

Fetterman made another argument for his candidacy today, contrasting his record without a boss (PH) with this ad highlighting the work he did during his tenure as the mayor of Braddock, Pennsylvania.


DR. MEHMET OZ, SENATORIAL CANDIDATE OF PENNSYLVANIA: I challenge my opponent, what have you done rolling your sleeves up in your own life to make life better for the people of Pennsylvania?

UNIDENTIFIED MALE: I first met John Fetterman when my son got into trouble. John took him under his wing. He helped him get his GED. John turned Braddock around and John`s turned my son`s life around.

UNIDENTIFIED FEMALE: He was a one man workforce for the city of Braddock.

UNIDENTIFIED FEMALE: When there was a fire, a shooting, an accident, John was there to help.

UNIDENTIFIED FEMALE: If someone needed clothes or food, whatever people needed.

UNIDENTIFIED MALE: John Fetterman helped change my life. He changed Harrisburg and now he`s going to change Washington.


HAYES: It`s a pretty good ad. I mean, Fetterman making a case he`s tangibly improved the lives of Pennsylvania residents, whatever you think of his politics, wherever your beliefs are.

The question is, can Mehmet Oz of all people really say the same?



HAYES: The warning President Biden issued last night about the Republican threat to the very foundations of American democracy is not hypothetical, it`s actually happening right now. And it`s happening in Michigan. Back in 1850, the state created the Michigan Board of State Canvassers, responsible for a number of normally mundane election duties like approving ballot initiatives. By law, the board is composed of two Democrats, two Republicans, and its responsibilities are meant to be clerical and administrative.

But Republicans in the board have turned this obscure bureaucratic body into a political weapon. They are blocking the will of hundreds of thousands of Michigan voters who want the chance to vote on abortion rights in their state. Activists secured a record number of signatures to get a proposal to amend the state constitution to protect abortion rights added to the ballot this fall. Nearly 600,000 people signed on, 175,000 more signatures that was needed for the proposal to go on the ballot.

But here`s the rub, the two Republicans on the canvassing board voted against the amendment citing a formatting issue with the spacing in the text of the petition. The amendment is now deadlocked. Activists are having to ask the Michigan Supreme Court to step in. But the deadline to get the amendment on the ballot is just a week away.

If the court doesn`t rule in time, it means two Republicans have silenced the voices of hundreds of thousands of people. Dana Nessel is the Attorney General of Michigan, and she joins me now.

So, I want to make sure I understand this story. The articles have been written about it. And obviously, I think you know, this inside out.

So, what is the normal process for getting either a referendum or a ballot initiative for the constitutional amendment? You got to get petitions and then, what`s the canvassing board supposed to do? What`s its role here?

DANA NESSEL, ATTORNEY GENERAL OF MICHIGAN: Well, the role of the canvassing board is intended to be ministerial in nature. There are a handful of boxes that they have to make sure are checked. And that`s it.

So, they look at things like font size, and they look at things like the size of the page, and things that are not really the kind of determinations that a court would normally make. These are -- these are just routine functions to make sure that the ballot proposal looks the way that it`s supposed to look, and that the Bureau of elections has recommended this. And then they check those boxes, then it moves on and it goes to the ballot.


It`s not intended for the purpose of which the board of canvassers has been used for this ballot proposal. And another one as well that received well over the requisite number of signatures. And that`s to decide whether you liked the ballot proposal or not.

And to come up with ways to obstruct the will of the people, and the many hundreds of thousands of people that signed on to these ballot proposals so that it can be voted on.

HAYES: So, they`re a stencil objection, here was the text spacing. And there was some disagreement about like what it looks like printed, what it looked like electronically, it was actually perfectly fine electronically.

But your contention and what I`ve seen is that this is utterly pre-textual. Republicans don`t want abortion on the ballot in the fall, because they think they`ll lose and they think it will boost turnout. Is that your contention that this was pretext?

NESSEL: Oh, absolutely. And in fact, I`m going to be filing an amicus brief on behalf of the proponents of the reproductive freedom for all ballot proposal, because I feel so strongly about it.

But yes, there`s no -- there`s no legitimate reason for this to have been left off. And even if those two Republicans on the board believe it to be true that there is a spacing issue, that still is not within their bailiwick, there is no box that says make sure that the spacing is correct, or that the spacing is sufficient. That`s not their job?

Now, if, you know, those who oppose this ballot proposal want to take it to the courts and make that argument. Of course, they`re free to do so. But this is not the job of the board of canvassers and it concerns me that from now on, this board will be used for one reason, and one reason only, and that is to obstruct the ballot proposals and also the candidacies of that which they do not want to appear on the ballot. And it`s a real concern.

HAYES: OK, I don`t want to be too hyperbolic here. But it just seems to me like this is precisely the kind of nightmare scenario we`ve been warning about. Right?

Back in 2020, we saw that the way that elections are administered all throughout this country from the Wayne County canvassing board to the board of canvassers in Michigan to Maricopa county board of elections is a lot of officials often not well known, sometimes appointed, not elected, sometimes party officials, basically just acting in good faith to ratify the will of voters, they`re there to make sure that like there wasn`t a screw up in the math, that the ballots didn`t get torn, you know, things like that.

They`re not there to be like, well, my guy didn`t win, so screw it. Like, and then if all the sudden those people who largely did act in good faith in 2020 stop acting that way, and start acting in the way that appears these two Republicans, the state board of canvassers do, like the things fall apart. Am I right that this is -- I mean, that`s really what this looks like.

NESSEL: I think this is exactly what Joe Biden was talking about in his speech when he essentially said, you can only believe in democracy when your side wins, right?

And what we`re seeing in today`s Republican Party, and as the president said, not all Republicans, but the MAGA Republicans, is that this is a party of petty grievances, and sore losers, more and more.

And what we`ve learned is that if you have an entire political structure, an entire -- an entire political party that is willing to undermine democracy, when they don`t get their way, we`re going to have a lot of issues retaining our democracy.

And I think that a lot of these things were unimaginable. But now that we look back at it, sometimes I think, I can`t believe it worked so well for as long as it did. Understanding that there were so many opportunities to undermine the system.

But now, that the Republicans have seen that they tested it in 2020. And I know that we`re going to see more of it, not just right now, but certainly in the November elections.

HAYES: Just final point on this in terms of where this goes from here. You made that point about quoting the president about you can`t just believe in things when you win.

I mean, it`s not even a question of winning here. Like, the question is, do the voters get to vote on it? Right?

I mean, that`s what`s before, can voters vote on abortion rights in Michigan directly? No one`s saying they`re going to win or lose. That`s what`s on the table right now. Are you confident the Supreme Court is going to get it on the ballot?

NESSEL: Well, the entertaining thing for me and I guess, not really in a not humorous but interesting is that, of course, for a long time, we heard the Republicans say, take this back to the states, let the states decide.

Well, it`s in our state now, the voters have clearly indicated they want this on the ballot, they want an opportunity to vote on it. And now the Republicans are saying, well, we didn`t really mean it. What we meant is we just didn`t want it at all.


I think that this ballot proposal will make the ballot. I think when the Supreme Court evaluates this, they`ll see this is a ridiculous reason to keep it off. It`ll appear on the ballot in November, and I think it will win with resounding numbers perhaps and a higher percentage than we`ve ever seen before for any ballot proposal. It`s that popular.

HAYES: Michigan Attorney General Dana Nessel. Thank you so much.

That is ALL IN for this week. "ALEX WAGNER TONIGHT" starts right now. Good evening, Alex. I owe you 22 seconds next week. I promise I`ll make it up to you.