IE 11 is not supported. For an optimal experience visit our site on another browser.

Transcript: All In with Chris Hayes, 9/8/22

Guests: David Miliband, Katty Kay, Nancy Gertner, Mary McCord


Tonight, the world is reflecting on the life and legacy of the longest reigning monarch in history, Queen Elizabeth II, who died today at her home in Balmoral, Scotland at the age of 96. Top Trump adviser Steve Bannon is in handcuff today in court as he pleaded not guilty to two counts of money laundering, three counts of conspiracy, and one count of scheming to defraud. The Department of Justice is set to formally appeal that decision by a Trump-appointed federal judge to appoint a so-called Special Master to review the documents seized by the FBI from Mar-a-Lago.


JOY REID, MSNBC HOST: He was 82 years old. And a phenomenal journalist who inspired so many of us who are in this business in many ways, in large part, thanks to his example.

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


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

UNIDENTIFIED MALE: Buckingham Palace announced the death of her majesty Queen Elizabeth II.

HAYES: The longest reigning monarch in British history is dead at age 96. Tonight, former British Foreign Secretary David Miliband on the global impact of Queen Elizabeth II, Katty Kay on a nation morning, and Michael Beschloss on the historic legacy of a 70-year reign.

Then, new revelations in the Mar-a-Lago search as the Justice Department cites national security risks in appealing the special master ruling.

Plus, Steve Bannon in handcuffs inside a New York courthouse as he surrenders to justice, and we get our first look at his charges when ALL IN starts right now.


HAYES: Good evening from New York. I`m Chris Hayes. Tonight, the world is reflecting on the life and legacy of the longest reigning monarch in history, Queen Elizabeth II, who died today at her home in Balmoral, Scotland at the age of 96.

The Queen ruled over Britain for seven years, but it was not our role she was -- it was a role she was not supposed to inherit when she was born back in 1926. You see, Elizabeth was the third grandchild of King George V, the first child of his second son. She was only 10 years old when her uncle in what was at the time a remarkable turn of events, a scandal, abdicated the throne, leaving her father to take over as king. And Elizabeth then, first in the line of succession.

She took the role and responsibility seriously from a young age, famously declaring her devotion to the duty on her 21st birthday.


ELIZABETH II, QUEEN, UNITED KINGDOM: I declare before you all that my whole life, whether it be long or short, shall be devoted to your service, and to the service of our great imperial family to which we all belong.


HAYES: Imperial family, that`s 1947. Think about that. Some five years later, upon her father`s death, Elizabeth extraordinarily long reign began, marking the beginning of a new modern post-war era. Her coronation 1953, as you see there, was the first to be broadcast almost entirely on television, drawing more than 20 million viewers. And the public --

The public`s fascination with the monarchy continued through the decades the Queen ruled over time, a vast change for the world and of course, for the U.K. When she took the throne, she ruled over an empire comprising 70 territory so geographically vast, it was said the sun never set on the British Empire. But in the 1960s and 70s, that all changed as the people of British Colonies Asserted their independence, broke free from the crown to chart a course of self-determination.

At home, Queen Elizabeth served through the tenure of 15 prime ministers from Winston Churchill during his second term, to Liz Truss who she met with and formally appointed just two days ago at Balmoral. The Queen also met with 14 U.S. presidents, everyone since World War II apart from Lyndon Johnson. Most recently, in 2021, she welcomed President Biden to Windsor Castle.

Today, the President referred to the Queen as "Stateswoman of unmatched dignity and constancy, who deepened the bedrock alliance between the United Kingdom and the United States." Going on to say that she helped make our relationship special.

Now, a long-planned period of mourning and ceremony begins in the U.K. with events stretching over the next 10 days culminating in a funeral service at Westminster Abbey. But the new era for the British royalty has already begun with Charles officially becoming king at the moment was mother`s death. He is now the oldest monarch to ever assume the British throne at age 73.

This afternoon, he released his first statement as king, saying in part, that "During this period of mourning and change, my family and I will be comforted and sustained by our knowledge of the respect and deep affection in which the Queen was so widely held."

For more response to the death of Queen Elizabeth II, I want to turn to NBC News Foreign Correspondent Molly Hunter live from London. Molly, how are people there reacting to the loss of the Queen, a fixture of life there for decades and the ascension of her son?

MOLLY HUNTER, NBC NEWS FOREIGN CORRESPONDENT (on camera): Hey, Chris. Even right now, it is almost -- it is 1:00 a.m. local time, there are hundreds and hundreds of people who have packed the area outside of Buckingham Palace. They are at the gates of Buckingham Palace, her Central London residence. They`re leaving flowers. They went there almost immediately after the statement earlier today, about 12 hours ago, that we got from Buckingham Palace.


It started to suggest that something was very ominous, that something was very serious. And hundreds of people started to go, started to gather together, to mourn together. Even though she was 96, Chris, even though we knew she had health problems, the palace has talked about mobility issues, she had COVID during the pandemic, even with all of this, the city and this country, they`re in shock, Chris. And they`re kind of in these stages of grief, right? They are still in the shock phase before going into kind of the full mourning.

You talked about King Charles and you talked about that statement. He sets up his own challenge. You have an incredibly popular monarch in his mother, 70 years. She is the only monarch that anyone here mostly has really known. And so, to move into her footsteps, she was beloved, she was popular, inside the family, she was the unifier. She was the stability, a force of stability in this country, as was so often said today, the grandmother of this country. So, to move into her footsteps to lead as she did, to try to galvanize or at least harness some of the support and love that she enjoyed is going to be a huge challenge, Chris.

HAYES: There`ll be a period now -- I mean, this is the beginning of what will be succession -- succession in a literal sense, but a succession of rituals that had been planned for a very long time is reading about the extravagant planning that has gone into precisely this moment. Just give us a sense of what`s to come over the next week and a half or so.

HUNTER: Extravagant planning is right. And what was interesting is then even during the pandemic, during COVID, these plans, of course, were fluid. They were adapting to the various rules and regulations. And now, as we have eased out of the pandemic, they`re back to kind of more of the original form.

As you mentioned, we are looking at 10 days that have been choreographed down to the minute. And we are culminating in 10 days with a state funeral. After five days, she will lie in state. And we are expecting millions of people, and that is not an exaggeration, millions of people will come to London to pay their respects.

As far as what we will see before, we can report all of her movements and all of the movements up until then. But we will see something somewhat remarkable for this country. There will be a moment, moments every single day for people to pause, to people -- for people to reflect, for people to gather and honor her, Chris.

HAYES: All right, Molly, thank you so much for staying up with us to cover this story. I really appreciate it. I`m really lucky now to be joined by David Miliband who served in the U.K. Government for over 12 years, both as a member of parliament and as Secretary of State for Foreign Affairs, now the President and CEO of the International Rescue Committee.

And David it`s really a great pleasure to have you here on the studio.


HAYES: First, just as someone who served in the -- in the government and your reflection personally on this day, and the legacy of the Queen.

MILIBAND: The Queen has been there for all my life and for 90 percent of Brits. They`ve never known anything else. And when people talk about a symbol of unity, a symbol of continuity, that`s what we will remember. That`s what we`ve all looked up to in various ways. She had this remarkable ability to put people at ease. One of the things you do as foreign secretary is all overseas trips that the Queen makes you accompany her. Every overseas trip that I made, I would go and see her beforehand and talk about things.

And she had this remarkable ability even when you went in trepidation, it felt like the first time it was going to be the worst exam I`d ever been through. She puts you at ease. And even though she could tell you about who was the Prime Minister of Pakistan in 1961 and what he`d told her, my first visit to Pakistan, I went to see her beforehand, she had this great ability to put people at ease. And I think that helped the country, however divided it was politically.

And there`s this interesting fact about a constitutional monarchy. The monarchy symbolizes unity, but it legitimizes political division. And that`s part of the secret of success, I think.

HAYES: Yes. Tell me a little bit more about that relationship because it`s so fascinating to me, right? I mean, you are a member of an elected government, right? You are the actual -- part of the government that`s actually, you know, running the country. Of course, the Queen is there as part of the constitutional order of the government that you are representing. There`s this obviously ceremonial awe you have -- you have for her as a Brit yourself, but what is the nature? Described to me the nature of that relationship as a Foreign Secretary going to talk to the Queen.

MILIBAND: Well, obviously, there are all sorts of aspects to it that are very peculiar. The -- when you -- to be appointed a minister, you her Majesty`s Secretary of State for Foreign and Commonwealth Affairs. You have to go and "kiss hands." They tell you how to kiss her hand. It`s to lightly brush the top of her hands. So, there are some things that can be seen as absurdities.

But there`s also the point that you`re there to represent a particular political point of view. And what`s striking is that whether you`re on the left or the right, whether you`re a Scottish nationalist or a Republican or whatever, that political division is respected. And she was someone who would never leak. You can`t find a single record of a conversation that she had had. She had known American presidents for 14 years, 14 American presidents, 15 U.K. Prime Ministers, why did they all come out today and talk about what a remarkable relationship they had with her? Because you could say anything to her and you know it wouldn`t go any further. You could seek her advice. You could seek her counsel if necessary.


HAYES: There`s also -- I mean, there`s something fascinating about the duration of her life and the amount of change. I mean, we see her in there in 1947. We talked about her imperial family, right? I mean, India, the subcontinent is still under British rule, right? It has not achieved independence at that point. Partition hasn`t happened. I mean, the State of Israel has not been created yet, right?

Like the world of the Imperial map of England that into the 21st century, it seemed to be her role was inventing what it meant to be a monarch in a democratic age, right? Like, what is that? And no one has really done it before her.

MILIBAND: Well, certainly for a democratic age, also an age of a smaller U.K. in the sense of not being the center of an empire, a multicultural Britain, a Britain that was for 40 years part of the European Union, a Britain that came to terms with its history with neighboring countries that have been fraught. One of the most remarkable visits that the Queen ever made was to Ireland, to the Republic of Ireland. And she managed to make that visit fraught with enormous political difficulties and dangers, meeting people who had been associated with those who taken up arms against British rule in Northern Ireland. She managed to make that visit and she managed to help cement better relations between Britain and the Republic of Ireland.

So, she was someone who`s very modesty about the limits of her role. She didn`t make political decisions. She didn`t -- she formally appointed Prime Ministers, but parties are elected by the people not nominated by her. And the limits of her role in a strange way, gave her the ability to transcend time and change in the way that she did.

HAYES: I was -- I was reading different, you know, pieces today about the monarchy, and particularly the modern constitutional monarchy, right, the post-World War Two and post-Imperial aspiring U.K. And the idea that by creating a fully ceremonial role, that people can kind of imbue their ardor and affection for someone that`s not actually running the government. And that cleaves off and allows people to be, you know, appropriately jaundice and cynical about their politicians.

MILIBAND: Yes, but it also --

HAYES: What do you think of that theory?

MILIBAND: Well, they can be respectful to the monarchy, they can be engaged with the monarchy, they can be supportive of the monarchy, but they can be passionate about their politics too. And the interesting thing -- I mean, there`s all sorts of things that are troubled about our -- each of our countries today.

HAYES: I think that`s a fair statement.

MILIBAND: But the monarchy is something that has been outside politics, and that has given a source of continuity. And I think that`s been very important. Obviously, the question now is, what role does Prince Charles, now King Charles -- King Charles III play in that. And there`s responsibility on him, but there`s also a responsibility on the politicians.

HAYES: Well, there`s also this remarkable aspect that hangs over this. You heard about what Molly just said, right, which is the notion of popularity. She was, though not a politician, a very good politician, incredibly adept politician, though, ironically enough, that was her role was to not be a politician. And her popularity gave -- imbued social capital into the monarchy and the institution beyond what it was.

MILIBAND: Yes. But she didn`t have to fix energy prices. She didn`t have to sort out --

HAYES: Correct. Yes, it makes it easier.

MILIBAND: -- our whole end of political position. She didn`t have to be responsible for inflation or anything else. And I think it was the limits that granted that.

HAYES: Right.

MILIBAND: Remember this. She didn`t -- she didn`t want the coronation that you just showed to be televised. She worried that mistakes would be harped on them. There`s this extraordinary interplay between on the one hand the secrecy and mystique of the monarchy, and on the other hand, the publicity that attends to it. And I think it`s very, very important for a country like Britain to understand that it can learn from its history, but it shouldn`t live in its history. And her ability was to help move the monarchy forward as part of trying to move Britain forward.

HAYES: Well, David Miliband, it`s such an honor to have you here on this very, very momentous day for your nation. I really appreciate it.

MILIBAND: Thanks very much, Chris.

HAYES: Coming up, her 70-year reign made her a monument of the modern world. Katty Kay and Michael Beschloss on Queen Elizabeth`s historic legacy next.




ELIZABETH II: I can truthfully say to you all that we children at home are full of cheerfulness and courage. We are trying to do all we can to help our gallant sailors, soldiers, and airmen. And we are trying too to bear our own share of the danger and sadness of war. When peace comes, remember, it will be for us, the children of today to make the world of tomorrow a better and happier place.



HAYES: On October 13 1940, then-Princess Elizabeth made her first ever radio address on the BBC children`s hour sending cheer to the millions of British children who had been evacuated out of their homes in anticipation of German air raids. Today, Queen Elizabeth II died at the age of 96 after a 70-year reign on the British throne, And though the monarch saw the U.K. through decades of change and tumult, it was that first speech nearly eight years later that she hearkened back to when she made a very different kind of address in 2020 as Coronavirus lockdowns began.


ELIZABETH II: It reminds me of the very first broadcast I made in 1940 helped by my sister. We as children spoke from here at Windsor to children who had been evacuated from their homes and sent away for their own safety. Today, once again, many will feel a painful sense of separation from their loved ones, but now as then we know deep down that it is the right thing to do.


HAYES: For much more on the impact of Queen Elizabeth II, I want to bring in Katty Kay, U.S. Special Correspondent for BBC Studios and NBC News Presidential Historian Michael Beschloss. Katty, I want to start with you because I was just reading the piece that you wrote for The Guardian which I found very provocative and interesting about the sort of specific role that the Queen played and the challenge ahead. Tell me more about that.

KATTY KAY, U.S. SPECIAL CORRESPONDENT, BBC: I think somebody else wrote it because I haven`t written a piece for The Guardian, but I can --

HAYES: I apologize. I think -- I think --

KAY: But I`m happy to take credit if it was a good piece, Chris.

HAYES: It was very good. I think you would just tweeted it and I was just reading it about. Basically, I mean, here`s what I`ve been struck by.

KAY: It was -- Jonathan Freedland and it`s a very good piece.

HAYES: That`s exactly right. You had just tweeted it. About basically about the role that she played as a figure of public ardor and how that`s not -- you know, that has to be cultivated and something she was very focused on cultivating and had a very profound role and doesn`t necessarily just come with the crown.

KAY: I think that`s -- I thought that was an important point. I mean, she came to the throne because the monarchy had gone through crisis after her uncle abdicated and her father had to take over as king. And there were real questions about the resiliency of the monarchy in the face of that crisis. And so her and her family were acutely aware. And she married a prince whose own royal families had been deposed in Greece. So, she was acutely aware of the risks to monarchy.

Monarchy didn`t necessarily -- it wasn`t necessarily the case that it was going to survive. And she was determined to make sure that the British Monarchy not just survive, but also thrive. She also had the benefit of coming onto the throne as a young woman. She was a -- if you like, she was a blank slate. And that`s a difference that she has with her son who comes onto the throne at 73.

The British public had no perception of her other than that she had been a charming girl, as we just heard, and that she had mended vehicles during the Second World War. That was it. So, she could kind of make of the role what she wanted. It was also an era when there was more deference. And I think that played to her advantage.

But really what she did was she worked to earn the trust of the British people, of her subjects. And I think just as importantly, she managed to keep it. So, she won it and then she kept it. And that was the real challenge for her. It`s one thing to win their trust. It`s another over the course of 70 years not to put a foot wrong and not to turn your public against you or to fall from their favor.

And she really -- there were -- of course, there were lapses. This is not to canonize her. There were lapses, particularly around Diana famously.

HAYES: Yes, right.

KAY: But she basically, during the course of 70 years, she did her job impeccably. And that`s why they loved her. They loved her for doing what she said she was going to do, which was be their servant.

HAYES: Michael, I was struck reading what you had to say today. Hopefully, I`m getting that right this time, about American presidents and British Royalty before the Queen, which is to say that I believe you said that Woodrow Wilson was the first visit with an American with a -- with British royalty. And that was striking to me because it took a while, right? I mean, it was interesting to me that this was not something that you know, after the revolution, it`s just -- oh, yes, the American president is going to go visit the king for very obvious reasons.


HAYES: That it takes like a century and a half to get to the point where that`s enough in history that you can have this kind of, you know, sort of ceremonial, collegial ritualistic visit with the crown.

BESCHLOSS: Right. And even just acknowledge you. You know, Wilson only met the king because the war -- World War I was over and he was in Versailles in Paris negotiating the peace, so he went over to see the king. So, it became important what kind of personalities were monarch of England also President of the United States.


But you know, I think sometimes, Chris, we only appreciate a leader that we have once she`s gone and I think this is a perfect example of that. You know, people liked Queen Elizabeth II but look at how improbable it would have been that she became the commanding leader that she did. She becomes queen age of 26, 1952. What other leaders are there in the world who are strong women for her to model herself after. She had to do this on her own.

She was born in the 1920s. She was not expected to be in the line of succession. She witnessed the Great Depression and World War II. She had a severely limited education. And then suddenly, against all expectations, becomes Queen at the age of 26. And just as Katty said, rarely put a foot wrong for 70 years.

Part of that was she knew how to carry herself in public. But part of this also is that this was a very shrewd and smart and wise woman who gave prime ministers from Winston Churchill on very good advice, to the same thing with American presidents, just as you`re saying, Chris, you know, beginning with Harry Truman, whom she met as a princess in Washington.

And so she performed all these roles at the time that England had to win World War II against great odds, survive in the Cold War, dismembers its empire without tumult, and still have a role in the world. And she was a popular Queen through all of that. She remained relevant all the way to the end of the 70 years as much or more than she was in 1952.

HAYES: And Katie, of course, her reign is so long, right, that it views the transformation of everything in the media. Of course, court gossip is literally as old as courts, but the version of the Royal industrial celebrity complex is, you know, enormous. It`s a global phenomenon. You can, you know, listen to podcasts about it in the United States.

And I do have to say that, like her constancy makes me feel -- I mean, I wouldn`t necessarily want to be Charles right now given the nature of that sort of scrutiny and the magnitude of that complex and how long she reigned and how well she did it under those conditions.

KAY: She was very conscious of needing to preserve the mystique of Royalty, of the monarchy of not letting -- the phrase was not letting too much light into it. Because without the mystique, what is the royal family? How do they justify those palaces and their extraordinary position in society? She did -- she -- you know, she kind of went up to the edge of that because she also realized that there was a need for the Royal Family to be seen as kind of empathizing or at least being identifying with the public.

So, she had this famous documentary made about the Royal Family -- I`m not sure she particularly enjoyed doing that -- where she let them into her homes when she was about 40. She`s been on the throne for a while. And they saw her making a barbecue and they saw her doing her papers and that at work critically. They saw the Royal Family, actually, the monarch was working. She wasn`t just freeloading.

But she kind of -- it was a constant sort of balance of how much do you adapt to a modern age where everything is shared in a second on every form of social media in somebody`s hand in the nanosecond, and how much do you try not to share? And I think that is something that the Royal Family has wrestled with and not always handled particularly well, particularly in recent years with the younger generations. So, how King Charles manages that in this era of social media is going to be fascinating to watch.

HAYES: Yes, Katty Kay and Michael Beschloss, that was fascinating. Thank you both for joining us tonight. I really appreciate it.

BESCHLOSS: Thank you, Chris. Be well.

HAYES: Still ahead, whether meeting world leaders or movie stars, her face was known around the world probably one of the most famous people of the centuries. Queen Elizabeth`s lasting impact on the pop culture world next.



HAYES: In the hours after Buckingham Palace announced the passing of Queen Elizabeth II, this was the scene late into the rainy London night as crowds gathered to pay tribute to the only monarch most Brits have ever known.

Earlier in the day, fans and players held the moment of silence before the Manchester United game got underway. Across the channel, Paris`s iconic Eiffel Tower went dark to honor the British Queen. There in New York, a moment of silence was held in the floor of the New York Stock Exchange.

For all the formality that comes with the trappings of royal life, Queen Elizabeth was kind of cultural touchstone for generations, a constant fixture of the world who found her way, liking it or not, into pop culture. Here again is NBC News Foreign Correspondent Molly Hunter.


MOLLY HUNTER, NBC NEWS FOREIGN CORRESPONDENT (voiceover): The Queen`s image was recognizable around the world. She`s a pop cultural icon.

KATIE NICHOLL, ROYAL EDITOR, VANITY FAIR: The Queen has been depicted in popular culture more than any other person really because she is a global icon. She is immediately recognizable anywhere and everywhere in the world. And because she`s been around for such a long time.

HUNTER: At a glance, Queen Elizabeth was known for her handbags, her pearls her eye-catching bright colors. Some say her outfits reflected her belief that she had to be seen to be believed. Artists took inspiration from her likeness. And while shows in movies about the war has took off --


UNIDENTIFIED FEMALE: I don`t often get into a fight. But when I do, I want to win.

HUNTER: Millions of fans were hooked on the drama and the scandal.

UNIDENTIFIED FEMALE: You don`t think that what affection people once had for this institution has been diminished?

UNIDENTIFIED MALE: No, not at all.

HUNTER: Hoping to learn a little more about the Queen, whether real or fictional.

UNIDENTIFIED FEMALE: We`re going out incognito.

UNIDENTIFIED MALE: Does the tiara rather give the game away, ma`am?


HUNTER: The Queen may have been a beloved on-screen character, but she wasn`t necessarily a loyal fan of the dramatizations herself.

DAISY MCANDREW, NBC NEWS ROYAL COMMENTATOR: We know that some members of the Royal Family watched the crown and other dramatizations of the monarchy. There`s never been any suggestion that the Queen herself watched it. You know, if you`re born into the Royal Family, hundreds of thousands of pages of script and drama will be written about you whether you like it or not.

HUNTER: She did embrace her pop culture notoriety on occasion.

ELIZABETH II: Good evening, Mr. Bond.

HUNTER: Appearing alongside Daniel Craig`s James Bond during the 2012 London Olympics and she acted with Britain`s beloved Paddington Bear during her Platinum Jubilee.

UNIDENTIFIED MALE: Perhaps, who would like a marmalade sandwich? I always keep one for emergencies.

ELIZABETH II: So do I. I keep mine in here.

HUNTER: And to those who knew her best, she had a very different side, less formal perhaps than the reserve leader we`ll saw.

CAMILLA TOMINEY, ASSOCIATE EDITOR, THE DAILY TELEGRAPH: I always wonder whether anyone properly captured her sense of humor.

UNIDENTIFIED FEMALE: There is a knife.

ELIZABETH II: I know there is.

HUNTER: England`s longest-serving monarch, her dedication to service defined the Royal Family, adored at home and admired by fans around the world. Molly Hunter, NBC News, London.


HAYES: Still to come, in the last few years, he has been nabbed on a Chinese billionaire`s yacht, convicted of contempt of Congress, and yet again, Trump adviser Steve Bannon finds himself in handcuffs. And the Department of Justice makes its argument to push forward with its investigations of Donald Trump`s hoarding of classified documents. That`s all ahead. Don`t go anywhere.



HAYES: Top Trump adviser Steve Bannon was in handcuffs today. In court, he pleaded not guilty to two counts of money laundering, three counts of conspiracy, and one count of scheming to defraud stemming from an alleged grift to bilk Trump supporters, to bilk them with a plan to crowdfund Trump`s wall on the U.S.-Mexico border because of course, Donald Trump was unable to get the government to fund it.

Bannon received a not-so-warm welcome at the New York courthouse, including one particularly enthusiastic heckler.


UNIDENTIFIED FEMALE: Stop hurting America, you two-bit conman, greasy grafter. Stop hurting America. Stop hurting America, you greasy grafter. Stop hurting America. Stop hurting America, you two-bit conman.


HAYES: And a journalist at ABC News captured this video of a handcuffed Bannon responding to the case with his usual bluster.


STEVE BANNON, FORMER ADVISER TO THEN-PRESIDENT TRUMP: This is what happens to the last stage of a dying regime. They will never shut me up. They have to kill me fist. I have not yet begun to fight.


HAYES: I do believe that Bannon is correct that as long as he`s alive, he will be talking. Now remember, he`s in those handcuffs because he`s charged with ripping off MAGA Trump fans and his own audience. That`s who the victims of the grift were. It wasn`t the libs, it wasn`t the liberal media. It wasn`t Democrats or progressives. It was the people that liked Steve Bannon and Donald Trump.

According to indictment, Bannon worked with a man named Brian Kolfage -- we`ll get more on him in a second. He is an unindicted co-conspirator in this case. Now, Kolfage very publicly promised donors the founders would not take a penny of the $25 million they raised, but he secretly pocketed $250,000 from the scheme, money Bannon allegedly laundered for him.

In a particularly notable moment of contempt for the people he was bilking, prosecutors say that even after Bannon hire -- allegedly wired Kolfage hundreds of thousands of dollars of crowd-funded cash, "at a fundraising event, Bannon stated, remember, all the money you give goes to building the wall."

Earlier this year Kolfage pled guilty to federal fraud charges of his own. Bannon is of course innocent until proven guilty. That said, it doesn`t look great for him considering prosecutors have text messages from Bannon allegedly discussing the scheme, including one that reads "We need wire of cash."

For more on Steve Bannon surrender to justice, I want to turn to Nancy Gertner, former U.S. District Court Judge in Massachusetts, now senior lecturer at Harvard Law School. Nancy, welcome to the program. We now have a look at the indictment and what the government alleges here. What`s your read on it?

NANCY GERTNER, FORMER FEDERAL JUDGE: Well, the indictment, when you put that next to the -- what the federal indictment -- there was a federal indictment that covered virtually the same thing which Bannon was taken out of because he was pardoned. And we look at the two together, there are text messages, there are statements that he made publicly, and then there are text messages that he made to his confederates.

There are wire transfers from organizations from the crowdfunding source to the organizations that he controlled, to then Kolfage. I mean, the evidence looks pretty so substantial but you never know what his defense will be. That the evidence is spelled out in this indictment is pretty substantial. We have to see.


HAYES: Yes. I mean -- and there`s also the fact that the key variable here -- well, it`s not a variable, it`s a constant -- is that the confederates is you referred to them, the people also engaged in a scheme, two of them have already pleaded guilty. I mean, the people on whose behalf he`s wearing the money, the people who`s out there, you know, they have pleaded guilty. So, you know, their innocence is not in dispute. Does that make it harder for him?

GERTNER: Well, their pleas of guilt would not necessarily be admissible in this case, but more significant, because I`m a law nerd, I actually went on there -- went on the docket, they had -- their sentencing was going to be taking place within the next couple of weeks, and then it was put off till December. That`s very interesting. So I think guilty is one thing, the question is whether they`re cooperating.

And someone doesn`t know, and I don`t speculate, but putting off the sentencing is a pretty interesting thing to do. So, it`s not just a plea of guilty. The question is, whether they`re working with the government.

HAYES: Right, I want to -- I want to just play the sound just -- I mean, again, this does seem like a -- you know, this is you have seen -- again, this is alleged, although it`s not alleged the part of it that went to the two people that plead guilty, the basics of this scheme, which is you raise a lot of money from a bunch of people for something, and then you skim some off the top is not rocket science, and it`s also not foreign, you know, as a -- as a mode of fraud. Here is Bannon in 2019, you know, putting his shoulder to the wheel on behalf of We Build The Wall. Take a listen.


BANNON: This is not going to be done in a day, it`s not going to be done in a week. If you want to have sovereignty, if you want have the rule of law, if you want to save your country, OK, not only you`re going to have to go out and organize and mobilize for these elections, you`re going to have to start privately doing this too, because we understand the apparatus is not -- is not going to be there for you. I think we`re going to do this. And as long as we got here as like Brian to lead us, we`ll be fine.


HAYES: That`s the pitch, right? That you`re going to have to privately do this. And by privately do this, he means you`re going to have to reach in deep, give some money to us so we can build the wall.

GERTNER: Right. There was a crowdfunding source, a crowdfunding webpage that would then only give money to the -- to the We Build the Wall unless they made certain representations. They made representations to the crowdfunding source that Kolfage would never receive any money. In fact, he did. That no one else would receive any money from this. It`s alleged that Ben had his expenses paid and that some of the money went into a nonprofit that he controlled.

All of this should be in paper. So, you have what he said which is obvious and on -- you know, and recorded. And then there are the text messages. And then there are the financial records. And the question is when you put this all together, what does it spill? And that`s the allegation of fraud and money laundering.

HAYES: Right. And you were -- you were obviously, you`re a federal district judge, and you`ve had a distinguished career in the law. And I wonder the particular combination of bizarre circumstances here, which is a defendant who is being tried in state court, for a crime he was previously indicted for in a federal court, got a presidential pardon while pending sentencing for his current conviction on contempt of Congress. I feel like that`s -- he`s got to be the first defendant in history to have -- to be in that situation.

GERTNER: Yes. Well, but also, that he gets pardoned and the rest of the case proceeds against his alleged confederates, so that`s very interesting. And so, the evidence is developed in that case proceeds. Then he gets indicted in state court which is permissible -- which is in double jeopardy because he was pardoned for the Federal offense. So, there`s not a federal offense followed by a state offense.

HAYES: And then, while this is going on, he`s convicted for contempt of Congress. And that sentencing is pending. And that sentencing could take place before this case which would mean he could arguably possibly be imprisoned while this case is going on. Yes, I have never seen this before.

HAYES: I think we`re safe calling that -- this a first. Nancy Gardner, always a pleasure to talk to you. Thank you.


HAYES: Coming up, the DOJ formally appeals the judge`s ruling that halted its investigations to classified files Trump took to his Florida retirement home. Why they say the ruling from that Trump-appointed judge puts America`s national security at risk next.


HAYES: The Department of Justice is set to formally appeal that decision by a Trump-appointed federal judge to appoint a so-called Special Master to review the documents seized by the FBI from Mar-a-Lago and to essentially order the DOJ to stop its investigation into Trump using the documents to recover for the time being.

In a legal filing, DOJ argues "The government and the public are irreparably injured when a criminal investigation of matters involving risks to national security is enjoined." Prosecutors also appear to believe that Trump may still unlawfully possess some classified records they have not yet seized. "The injunction against using classified records in a criminal investigation could impede efforts to identify the existence of any additional classified records that are not being properly stored, which itself presents the potential for ongoing risks to national security."

Lots of questions about what all this means to the investigation going forward. To help answer them, I`m joined by Mary McCord, former Acting Assistant Attorney General for National Security at the Department of Justice. She spent nearly 20 years as an Assistant U.S. Attorney in Washington D.C., now a visiting professor of law at Georgetown.

Mary, great to have you on the program. I know this is kind of an area that you practiced in. First, I guess, if you could tell us what is DOJ asking for here because they haven`t quite appealed yet, right? They`re sort of asking judge Cannon to reconsider to change along relatively narrow grounds. What do they want?


MARY MCCORD, ACTING ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY, DOJ: So, they have noticed an appeal, right? So, they`ve actually filed that they are noting an appeal. But they`re asking to only stay a portion of the district court`s ruling. So, I think this is actually a very legally sound move and strategically brilliant move by the department. Because what they`re doing is they`re asking Judge Cannon to stay that part of her ruling that they have the best likelihood of success on appeal.

That is that part of her ruling that says you can`t use any of the materials, they`re just -- they`re just asking for the stay on the prohibition on using classified materials in their investigation. And the probe -- and the requirement to actually turn classified information over to a special master who of course, has no real authority to review, no need to know classified information.

So, what they`re doing here is saying, we`ll go ahead, we`ll comply with the special master even during the pendency of our appeal with respect to all of the unclassified and personal documents. In fact, we`re just going to hand those all over to Mr. Trump`s attorneys. They can review them themselves. They can claim attorney-client privilege and executive privilege if they want. But we want you, Judge Cannon, to let us go ahead and use the classified.

And if you don`t let us do that, by next week, we`ll appeal that up to the 11th circuit and ask the 11th circuit to allow us to move forward using the classified information.

HAYES: Right. They`re basically saying, look, there`s 100 of these classified documents. They`re the heart of the whole matter. They`re the heart of the risk and damage assessment, the heart of the criminal case that we`re investigating. All the other document is like fine, do whatever, knock yourself out. But there`s no reason that we should have to hand over these 100 classified documents to who, the person who hasn`t even been appointed yet, who likely finding someone with that level of clearance itself is going to be a pain.

MCCORD: Finding someone with the level -- the level of clients would be a pain. I think, importantly, if you think about the classified information, most of these are likely original intelligence products by the intelligence community. So, what DOJ is saying is that necessarily, number one, these are not Trump`s. They`re not as personal records. He has no entitlement to them.

Number two, necessarily, they can`t include attorney client privilege information or the executive privilege information because they`re classified documents and there are no handwriting`s on them.

HAYES: Right.

MCCORD: So, you know, I think they`re actually making it easy for the district court judge do the right thing here. And I hope she`ll do that.

HAYES: That -- you know, it`s funny you say that because I read the filing as a kind of off-ramp given to Judge Cannon after what many, many people thought was a truly, strikingly -- some would say lawless ruling or creative ruling that enjoined criminal investigation that conjured the notion of attorney-client privilege and documents of which there was no reason to believe there were any. There`s no -- Donald Trump doesn`t have an attorney client privilege because the CIA produced some doc that he`s got shoved in his basement at Mar-a-Lago.

MCCORD: Yes, that`s right. And so, I think that`s what I said this was a legally sound but also, I think, really good strategic move on the part of the department. And, you know, I think, you know, we`ll see what Judge Cannon does. But I think if she does not grant this stay, I think they have put themselves in a very good position with the Court of Appeals because essentially, the Court of Appeals would have to, you know, reject the notion that these sensitive national security documents up to top secret and beyond Sensitive Compartmented Information are -- you know, are not so significant to our national security, that they should have to go through this special master process. And I just don`t see the 11th Circuit doing that, notwithstanding the composition of that circuit.

HAYES: Yes, which is -- which is a very conservative circuit, we should note, has a lot of Republican appointees and is noted as a conservative circuit that this is a narrow, narrow appeal that they have noticed. Mary McCord, that was really great. Thank you very much.

MCCORD: Thank you for having me.

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