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Hardball With Chris Matthews, Transcript 11/17/2016

Guests: Eli Stokols, Heidi Przybyla, Yamiche Alcindor, Rob Reiner, Michael Tomasky, Ruth Marcus, Carl Higbie, Dahlia Lithwick

Show: HARDBALL Date: November 17, 2016 Guest: Eli Stokols, Heidi Przybyla, Yamiche Alcindor, Rob Reiner, Michael Tomasky, Ruth Marcus, Carl Higbie, Dahlia Lithwick

CHRIS MATTHEWS, HOST: Dangerous liaisons.

Let`s play HARDBALL.

Good evening. I`m Chris Matthews in Washington.

Well, when it comes to those who might serve inside a Trump administration, some of Trump`s prospective choices could become dangerous for the president-elect. NBC is reporting that Trump is expected to choose retired lieutenant general Michael Flynn, for example, as his national security adviser. Flynn, who called for Hillary Clinton to be locked up at the Republican convention, has been criticized or scrutinized for his paid speaking engagement at a 2015 gala for RT. That`s Russia`s state-run media outlet in Moscow. In fact, in Moscow, Flynn was photographed sitting beside Russian president Vladimir Putin. There he is.

Trump is also meeting with Alabama senator Jeff Sessions, who he`s eying for attorney general, or secretary of defense, according to NBC. Well, today, "The New York Times" revisited troubling allegations that arose in a bitter confirmation hearing 30 years ago, which ultimately derailed Sessions`s prospect of becoming a federal judge.

Additionally, Politico reports that Trump aides have discussed naming Sarah Palin as secretary of the interior. And "The New York Times" says conservative radio host Laura Ingraham could join the administration, as well.

And take this for what it`s worth. Mitt Romney, who`s been an outspoken critic of Trump all along, is meeting with the president-elect for whatever purpose this Sunday.

Meanwhile, on his final trip abroad as president today, Barack Obama said he hopes President-elect Donald Trump will change from the man we saw on the campaign trail to the person this country would like to see in the White House.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: He now has to transition to governance, and what I said to him was that what may work in generating enthusiasm or passion during elections may be different than what will work in terms of unifying the country and gaining the trust even of those who didn`t support him, that that has to reflect itself not only in the things he says, but also how he fills out his administration. And my hope is, is that that`s something that he is thinking about.


MATTHEWS: Notice how quiet those reporters are over in Germany.

Anyway, joining me right now is Eli Stokols, national politics reporter at Politico, Heidi Przybyla, senior politics reporter at "USA TODAY," Yamiche Alcindor, who covers national politics at "The New York Times."

Let me start with Eli here -- that was Cary Grant, by the way. Just kidding. Eli -- this story about Flynn -- now, he didn`t get much attention, but he did say, "Lock her up," so that sort of electrifies him as political bait.

ELI STOKOLS, POLITICO: Oh, Giuliani -- they all said that, Chris.

MATTHEWS: Yes, when you start talking like that and you`re a general, people should pay attention. It`s not exactly general-like.

Let me ask you about this RT connection. Now, Larry -- what`s his name, Larry King writes for RT. People show up -- I showed up on that network one time. I thought it was just a Larry King network. Turns out it`s Russian TV.

Is it appropriate for a cabinet member or a potential cabinet member to have been paid by them to give a speech out there, or taken money under any circumstances from the Russians?

STOKOLS: Well, they raised a lot of questions about Hillary Clinton and who she was paid to give speeches by when she was secretary of state (sic) and then a private citizen. So I think it`s definitely fair to ask the questions, and especially because...

MATTHEWS: Good for the goose, good for the gander, as they say...


STOKOLS: But when you`re talking about Russia, OK, he is not the only person in Trump`s inner circle with close ties or an evidence, a trail of saying pro-Russia statements, at least, and acting in a way that is much more sympathetic to the Russian government, to Vladimir Putin, than the current administration`s foreign policy.

I mean, this is a country that the West has sanctions on right now because Putin took territory in Ukraine. And there are...

MATTHEWS: You mean took Crimea.

STOKOLS: And Crimea, but occupies currently territories in Ukraine. And so people want to know why this matters, if Trump gets in and softens on Russia, the West -- the NATO sanctions...



HEIDI PRZYBYLA, "USA TODAY": And supports softening those sanctions.

STOKOLS: Right. So that -- so we...

MATTHEWS: You can`t take somebody`s -- if you start taking money from someone, it seems to me that -- well, that just impeaches everything you say about them hence forward. You look like the person getting paid.

PRZYBYLA: Right. Well, considering what a huge issue this was -- and this is a big problem with Giuliani, too. We haven`t gotten into him yet, but that`s -- that`s potentially an even bigger hornets` nest with Rudy Giuliani. But Chris, the prism...

MATTHEWS: You mean in his case, taking money...


MATTHEWS: ... anti-mullah group over in Iran.

STOKOLS: Right, and former Milosevic (INAUDIBLE) government in Serbia, as well, so there`s a lot to untangle there with both of these gentlemen. But the prism through which I think we have to judge all of these appointments is we have to remember what Donald Trump ran as. He ran as an outsider who had no experience in any of this, but the one thing he was going to do was be a good manager who picks someone who has a lot of experience.

If you look at Flynn, the one thing that seems to distinguish him from everyone else is that he was loyal. He was the one national security guy of his pedigree who stood up and was loyal to Donald Trump the whole time. He`s got a lot of counterterrorism experience. He`s been in Iraq. But he`s not like a Condi Rice or Colin Powell type figure (INAUDIBLE)

MATTHEWS: Let me go to Yamiche on this. "The Times" has been very active reporting on this whole process up there in New York on 5th Avenue. Besides blocking traffic up there, Trump is making news.

Now, here`s the question. Loyalty versus perfection for the job? I think he will lean towards loyalty over perfection on the resume, right?

Now, the question is, why is he letting Rudy Giuliani sit out there, almost marinating over these days, when he could be picking him? He knows the guy. He must have made a judgment about him personally, about his character, his loyalty. What`s he waiting for, fishing with all these other possibilities on secretary of state? What`s up?

YAMICHE ALCINDOR, "NEW YORK TIMES": I think what he`s waiting on is the idea that, really, Donald Trump doesn`t like people who lobby for their jobs too much. In some ways, he`s back to this position that he had at "The Apprentice." He doesn`t want people to want it too much.

And he also -- Kellyanne Conway said today he really wants people to have - - to be private and to keep these things secret. And Rudy Giuliani has kind of been out there, in some ways, really walking around, making reporters think about the fact that he might be the secretary of state.

Now, I think what we talked about and what one of your guests said, this idea about loyalty, is this idea about who stuck with him. That`s why we see the people like Jeff Sessions still in the running, and even though he has all these kind of problematic Civil Rights issues in the background of his resume.

I think the reason why Rudy Giuliani is staying out -- waiting out there is because Donald Trump maybe doesn`t like the way that he`s going about getting the job.

MATTHEWS: Yes, when it comes to secretary of state, "The New York Times," your paper, Yamiche, reported, "People familiar with the latest discussions and one person who has spoken directly with Mr. Trump said the president- elect had growing reservations about Mr. Giuliani, who for 48 hours, eagerly stoked news of his possible appointment."

Here`s what Kellyanne Conway did say when asked on "MORNING JOE" if Giuliani`s public lobbying for the job has hurt his chances.


MIKA BRZEZINSKI, CO-HOST: Is there any way, shape or form that that is the way to act, to run your mouth?

KELLYANNE CONWAY, FMR. TRUMP CAMPAIGN MANAGER: I think these conversations are always best in private, particularly when you`re forming a cabinet and a senior staff, Mika, no question, which is why I don`t say too much about myself.

He would command a certain presence around the world if he were secretary of state. But I will tell you, as someone who`s highly involved with transition, we have long short lists for every position.


MATTHEWS: Well, now we`ve got a problem with Flynn, who`s taken the money from the Russians, not a good move if you want to be the tough negotiator with the Russians.

We`ve got Sessions. Let`s talk about Sessions, Jeff Sessions. Let me get back to Yamiche. Your paper has been active on that front, too. Jeff Sessions, an Alabama senator, if he is picked for Trump`s cabinet, it wouldn`t be the first time he faced a confirmation hearing in the Senate.

When nominated to be a federal judge 30 years ago, in 1986, "The New York Times" reported a prosecutor then said Sessions, quote, "referred to the American Civil Liberties Union and the NAACP as, quote, "un-American." He also called a prominent white lawyer a disgrace to his race for representing black clients. Another witnesses, again according to "The Times," said that Sessions joked that he thought that the Ku Klux Klan was OK until he found out they smoked pot, whatever the heck that means.

Those allegations, some of which Sessions acknowledged, saying -- were enough to torpedo his nomination. And he said at the time, he considered the matter settled. Let`s watch this. Let`s watch it.


JEFF SESSIONS, U.S. ATTORNEY, SOUTHERN DISTRICT OF ALABAMA: The issues that have been raised before the Judiciary Committee have been heard and argued and settled. That matter is over, and I have no further comment about it.


MATTHEWS: You know, we want to put this in context. At least I do. I want to put it in context. This was 30 years ago in the deep South. It`s Alabama. But there are some of these questions that are -- a credit to his race sounds like a hundred years ago, or a disgrace to his race or whatever that was. That is a problem for me.

But what do you make of this, Yamiche? Is this a thorny problem or a doomsday situation for him?

ALCINDOR: I think, given what Donald Trump has been filling his cabinet with, the appointment of Steve Bannon, this is probably more thorny. I think when you think about Jeff Sessions`s background, he once told an African-American man, even though he denies it -- an African-American man that he should really be careful about how he speaks to white people and he called him "boy."

So really, this is -- this is -- this -- if he became the attorney general, I can see so many families that are waiting for the DOJ to come up with solutions with their -- with the investigation, their family. You think about Eric Garner and the case of him being choked, basically, on Staten Island.

There are so many families that I`ve talked to that say that they`re just very -- they`re very scared of who`s going to be the head of the DOJ, who`s going to be in charge of this.

And then perhaps someone like Jeff Sessions -- yes, we can put into context that it was 30 years ago in the deep South, but if he`s 30 years ago in the deep South and he`s talking like this and joking about the NAACP as being un-American, that`s really a problematic thing.

But whether or not it`s going to keep him from being appointed is a whole `nother thing because he -- again, we talked about the idea that Donald Trump is really into loyalty, and he was the first senator to go out there, to take the risk to endorse Donald Trump, and he was out there on the campaign trail for him. And Donald Trump really values that.

MATTHEWS: Yes, I guess my view is I do know Sessions and I do think I`ve got problems with him, too. But I also -- I risk being too judgmental about 30 years ago, Heidi. Will the public, will the Senate hearings, when they look at him, hold that up as a major problem for him, those comments like calling somebody "boy," an adult African-American?

PRZYBYLA: I think this could really build, Chris. And I say that because it`s not in a vacuum, OK? This is coming as the Trump organization, the Trump incoming administration, is looking at how our streets are becoming a powderkeg based on this racial narrative that began during the campaign, that really exploded with the appointment of Bannon.

And now despite all of that, they`ve done nothing, really, to publicly try and calm those fears. And instead, they start careening towards another appointment where you have this type of baggage, what does that tell the American people about your intentions?

MATTHEWS: How far is a guy like Trump willing to push the envelope?

STOKOLS: Well, he`s been pretty defiant.

MATTHEWS: I mean, it`s one thing if you`re a liberal and you pick a person who`s relatively conservative on law and order, you might get away with it. But if you`re already way out there with Bannon, with Breitbart, and then you pick somebody who looks like they might be an old seggie, you`ve got a problem.

STOKOLS: Right. And I think when Kellyanne Conway says, We have long short lists, what she`s saying is, We don`t know right now, right? There`s a lot of uncertainty up there because the people that he is closest to, that have been the most loyal to him, may have confirmation problems. They may exacerbate bad narratives that are out there already.

I mean, Heidi is right. The context right now, this coming -- these nominations coming after a campaign from a president-elect who`s already inflamed racial divisions in this country -- the Democrats are going to have to decide where they want to fight.

MATTHEWS: Yes. Yamiche, I want to ask -- I shouldn`t say an old seggie, but it begins to look like it. When you pull this stuff out, that`s what it looks like, it does, because it looks like he was certainly one of them back then.

But he`s also a guy who`s extremely tough on illegal immigration to the point, well, oh, my God, this is going to be a reunited (ph) -- this is going to be the guy that takes on immigration, the problems in the streets with police right now, and the questioning of who`s really looking out with true authority for law and justice, not just taking a side. This is a tricky business. What do you think?

ALCINDOR: Well, this is very tricky. But I`ve been talking to Republicans of color, and there are a lot of African-American and Hispanic Republicans that are very upset about the appointment of Steve Bannon. And to see Jeff Sessions then become attorney general or head the Department of Defense, that would really, I think -- even within the Republican Party, that would send a message that Donald Trump is saying, I`m not going to be the president of the United States of America, in that he`s really going to his base.

Just looking at the numbers, he only got 8 percent of the African-American vote. So even if it is him digging in deep, he`s thinking, you know what? My base was overwhelmingly white, and these appointments are going to be the appointments that I make because this is what my base wanted. They wanted someone who was extreme on immigration.


ALCINDOR: They wanted someone who was really into extreme vetting when it comes to Muslims. So that`s also probably what`s gong on with Donald Trump.

MATTHEWS: Well, the sermon is leadership. He`s got to discern where to make his fights. I want to ask you all, any thoughts about Romney? Is this for real, that he might be looking at him for a high cabinet position?

PRZYBYLA: I look at this as a reporter and I take note of what the narrative was yesterday, which was that the Trump campaign isn`t picking people based on qualifications, they`re picking people based on loyalty and they`re doing this Stalinesque purge. So what do we want to do on day two? We want to show that that`s not what we`re doing.

MATTHEWS: So this is just a trial balloon.

PRZYBYLA: And so it could -- it could very well be a trial balloon. It could very well be a trial balloon. You also saw Nikki Haley come in there, or schedule an appointment, another person who was a very outspoken critic of Donald Trump.

You know he`s talking to all of these people. They`re all kind of making this makeup, go-arounds, and maybe he invited them to visit.

MATTHEWS: It`s one thing to throw HUD or HHS to somebody, but to throw them State, throw it to Romney...

PRZYBYLA: I think he`s going to want a lawyer (ph).

MATTHEWS: ... one of his biggest opponents who was out there backing Evan McMullin...


MATTHEWS: I mean, give me a break. It`s one...


MATTHEWS: That`s problem the most -- that`s probably the most ruthless thing I`ve seen in politics, if he put Romney in there and dumps Giuliani. (INAUDIBLE) just say, I`m going against my loyalists. Last though there from -- from Yamiche. I`m sorry. Yamiche?

ALCINDOR: Well, it`s also just tough to think of Mitt Romney kind of now going and kissing the ring of Donald Trump after everybody has that -- I think he had that very memorable press conference, where he really went and really attacked Donald Trump very pointedly.

So to also -- I think it`s also remarkable that maybe Donald Trump is getting a little bit -- feeling good about the fact that now all these people have to come and ask him for jobs. I think that could also help, if he does get appointed, to just make him feel like, Well, now I have the power and you have to bow to me.

MATTHEWS: I can understand that. That sort of fits the bill, doesn`t it? Anyway, thank you, Eli Stokols. Thank you -- it`s nice to be king. Anyway, Heidi Przybyla and Yamiche Alcindor.

Coming up -- Hillary Clinton makes her first public appearance since her election defeat last night, urging her supporters not to give up and to say engaged in politics. Tonight, I`ll ask Hollywood director and political activist Rob Reiner how Democrats should do -- what they should do in this age of Trump.

Plus, the HARDBALL roundtable tonight on what we know about Donald Trump`s son-in-law, Jared Kushner, who could be the true center of power in the next presidency, if it`s legal. Can you name your son-in-law?

Anyway, also, the immigration headliner, advisers are looking for ways to create a registry of immigrants from certain Muslim countries. And now a Trump supporter suggests the forced internment of Japanese-Americans during World War II provides an excellent precedent for that policy. You don`t believe this stuff. The United States government, by the way, admitted that those internment camps were wrong and apologized for creating them.

Finally, "Let Me Finish" with Trump watch for this Thursday, November 17th. Time`s moving on.

And this is HARDBALL, the place for politics.


MATTHEWS: Well, here`s something else President Obama said on his last overseas trip as president. After meeting with German chancellor Angela Merkel, Obama tried to calm fears among U.S. allies, issuing this message for Donald Trump.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: If you`re not serious about the job, then you probably won`t be there very long because it will expose problems. And I think the president-elect is going to see fairly quickly that the demands and responsibilities of a U.S. president are not ones that you can treat casually.


MATTHEWS: Well, that`s forbidding. And we`ll be right back.



HILLARY CLINTON (D-NY), FMR. PRESIDENTIAL NOMINEE: I know many of you are deeply disappointed about the results of the election. I am, too, more than I can ever express!

I know this isn`t easy. I know that over the past week, a lot of people have asked themselves whether America is the country we thought it was. The divisions laid bare by this election run deep.

But please listen to me when I say this. America is worth it. Our children are worth it. Believe in our country, fight for our values, and never, ever give up.


MATTHEWS: Welcome back to HARDBALL.

That was, of course, Hillary Clinton, in this case urging her supporters last night to keep fighting. She spoke at a charity gala in Washington for her favorite charity, I believe Children`s Defense Fund, a group she worked for when she was a law student. It was her first public appearance since conceding the election last week.

Well, Clinton grew emotional, she did, as she spoke about the struggles her mother had faced as a child abandoned by her parents and sent to live with relatives at a young age. Clinton said she wished she could go back in time and comfort her, her mother. Let`s watch.


CLINTON: I dream of going up to her and sitting next to her and taking her in my arms and saying, look, look at me, and listen. You will survive, you will have a family of your own, three children.

And, as hard as it might be to imagine, your daughter will grow up to be a United States senator, represent our country as secretary of state, and win more than 62 million votes for president of the United States.



MATTHEWS: Well, that was nice.

And I have learned along the way somewhere, I guess from my wife.

Rob Reiner, thank you, because I think we men have learned along the way that mothers have a tremendous influence on their daughters, and their daughters all their lives want to live up to the expectations of their mom`s. My wife`s like that. I`m sure you know about this.

It`s so -- it`s something we`re not even into, the power of the mother and the daughter.

Anyway, your thoughts about this emotional time?

ROB REINER, ACTOR/DIRECTOR: Yes. And I think it`s unfortunate, it`s really unfortunate that we don`t have our first woman president, because I do believe that women have a greater love of life.

They cherish life more than men do, in a weird way. They`re not as easily as willing to throw it away. And I think it would have been -- it would have been very good for this country to have the first woman president.

MATTHEWS: You and I don`t know what it`s like to have a human being come out of us. That`s quite an experience, to have a baby.

REINER: That`s right.

MATTHEWS: We don`t know that.

REINER: And we don`t -- also don`t know what it`s like to have a human being growing inside of us and nurturing a human being.

And I think, you know, unfortunately, we have got a situation, you know, where we have got a misogynist, you know, in the White House. We have got a racist who`s also anti-Semitic. And I know people don`t like to, you know, hear those terms thrown around, because they say...

MATTHEWS: Is he really anti-Semitic? Where do you pick that up?

REINER: Well, yes.

(CROSSTALK) MATTHEWS: Where did you pick that up?

REINER: Yes, and I will tell you why.

I`m going to tell you why. Because it doesn`t matter whether you are discriminating against a black person or a Muslim or a Latino or a Jew. If you are comfortable with the fact that there are groups who hate Muslims, hate Jews, hate Latinos, hate women, if you are comfortable with having those groups support you, and you don`t in a forceful way say, this is not part of who I am, then you are basically the Jewish police at the Warsaw Ghetto.

You`re condoning it. And I have never heard Donald Trump ever say that he was against any of those groups that are supporting it.

MATTHEWS: Well, let`s talk about the complexity of that, because, in his - - I don`t want to say the old, some of my best friends are, or any of that stuff, but his son-in-law is very observant. He`s Jewish, and his daughter has converted, has -- you know, looks to be his favorite daughter, perhaps.

So that`s all happening around him. He`s also -- you know, I get the feeling that he`s going to be very pro-Israeli. I don`t know if that clicks with you or not, coincides with your thinking about him. But I think he`s more complicated than this. He`s talking about picking -- some of these guys he`s talking about picking, John Bolton?

REINER: I go back to the Jewish police at the Warsaw Ghetto.


REINER: Yes, there are Jews that were fine with, you know, saying, it`s all going to be OK, you know? The march through Germany, it`s going to be fine.

There are people like that. And there are people who have economic interests that don`t have anything to do with holding up certain moral interests.

Now, look at what`s happened in this country. And you have talked about it. I have heard you talk about it, Chris. You have -- you know, you had the Voting Rights Act -- the Civil Rights Act, the Voting Rights Act, the Loving vs. Virginia in 1967, and things were moving in a very good direction. It was difficult, but it was moving in a good direction.

Then you had, in the `70s, with "All in the Family," we shone a light on racism. Then you had the `80s and the `90s and you had stars on television, Oprah Winfrey. You had stars in TV and movies, and culminating with the first African-American president.

And, at that point, I think what we didn`t understand is that that racism that exists in our country, which had been submerged, all of a sudden, through Donald Trump and giving a megaphone, starting with the birther issue, unearthed all of this racism that has bubbled to the surface.


REINER: And it`s very disturbing to think that the first African-American president is followed by someone who is supported by the Ku Klux Klan, very, very disturbing.

But, in a way, I understand it, because we`re fighting the last battle of the Civil War. It`s the white nationalists hanging on for dear life, and threatened by the idea that the country is moving away from them and is becoming more diverse.

And that`s what we`re talking about here. So, you know, we can`t sugarcoat this. This is really, really rough stuff. But we do move forward. And, sometimes, you take two steps forward, one step back. And it`s not a straight line. And this, in a way, I think, has shown America where we are and what racism pervades underneath.

And, hopefully, this will move us forward in the future.

MATTHEWS: Well, it is a dialectic. I completely agree with you. And I have given a speech like that to an African-American newspaper in Philly one time years ago.

And I do believe it`s a war, and a war goes on. It goes back to the Civil War and the Know-Nothings, all the way to the suffragette movement. There`s always this left vs. right. It`s not that neat, but it is a battle about values and who we are.

Rob Reiner, I have always considered you an unhyphenated Democrat who knows his values. And thank you. That`s a good thing, by the way. Thank you so much.

REINER: Yes. Thanks.

MATTHEWS: Up next -- who reads the newspaper all the time, ahead of me even, in fact -- the power behind the power. We are going to talk more about Donald Trump`s son-in-law, Jared Kushner, and if bringing him into the White House would violate the nepotism law, the anti-nepotism. You can`t hire relatives.

Anyway, you`re watching HARDBALL, the place for politics.


MILISSA REHBERGER, MSNBC CORRESPONDENT: I`m Milissa Rehberger. Here`s what`s happening.

The Associated Press is reporting that Donald Trump has offered longtime supporter Lieutenant General Michael Flynn the position of national security adviser. The NSA job does not require congressional approval.

Director of National Intelligence James Clapper is stepping down next month. He says submitting his resignation felt pretty good. Clapper planned to leave his post at the end of President Obama`s term.

And hundreds of workers at O`Hare International Airport have voted to strike ahead of the Thanksgiving rush. They include baggage handlers and cabin cleaners -- back to HARDBALL.

MATTHEWS: Welcome back to HARDBALL.

Well, "The New York Times" reported this afternoon that Donald Trump`s son- in-law, Jared Kushner, has consulted lawyers about the prospect of joining his father-in-law`s White House.

"The Times" says: "Mr. Kushner, at 35, who was often described as a de facto campaign manager of Mr. Trump, has been planning to return to his private businesses after Election Day. But on the morning after Mr. Trump won, he began, Mr. Kushner, discussing a role in the White House. Mr. Trump is urging him to join, according to one of the people briefed, a strategist shared by Stephen Bannon, the chief strategist for the White House, and Reince Priebus, who was named chief of staff."

Kushner is consulting lawyers because there`s in fact a federal anti- nepotism law that prohibits any federal official from hiring a family member, including a son-in-law.

For answers on whether president-elect Trump`s son-in-law can play a role in the White House, let`s start with NBC justice correspondent Pete Williams.

If there is an anti-nepotism law, and it exists, why doesn`t it address this character, Kushner, Jared Kushner?

PETE WILLIAMS, NBC NEWS JUSTICE CHIEF CORRESPONDENT: Well, what the law says is that a public official -- that`s the president -- can`t hire a relative, including a son-in-law, in a federal agency. That`s the key word.

Is the White House staff an agency? The answer, Chris, is that nobody knows for sure, but the answer is probably not. The courts have said that, for other purposes of other laws, the Administrative Procedures Act, the Freedom of Information Act, the White House staff is not an agency.

And in the lawsuit that was brought against Hillary Clinton`s position on the Clinton task force in the `90s, that went up to the court of appeals here. It didn`t decide that question either. It decided that case on another basis.

But it said, the White House staff is probably not an agency. They noted these other decisions. And they said, you know, even if the nepotism law applies, which it probably doesn`t, but even if it does, it says, you can`t put these people on the payroll. Well, a spouse, a relative could work for nothing.

So, the legal experts I have talked to from both parties, legal scholars, say the answer is probably, yes, he probably could work and it wouldn`t violate the nepotism statute because it wouldn`t apply.

MATTHEWS: Who rules on this, Pete, and when would you get a ruling? Can you get prior review from a court? How does Trump know if he`s breaking the law?

WILLIAMS: Well, he just has to ask lawyers in advance. Courts don`t offer advisory opinions. The federal courts don`t.

And there`s a real question here about who could sue. Who would have standing to sue? What would probably have to happen is, the president would make some executive decision. Somebody that is harmed by that would go to doubter and say, hey, I know this Jared Kushner guy was involved is advising the president and he has no business being there.

And then you could probably get it before a court. But you couldn`t just go into court after he becomes executive assistant and say, I don`t like that.

MATTHEWS: OK, thank you, Pete Williams. You are our man to find out these things. Thanks so much.

Let`s bring in the HARDBALL roundtable, Ruth Marcus, deputy editorial page director of "The Washington Post." Perry Bacon is an NBC News senior political reporter. And Michael Tomasky is columnist with The Daily Beast.

So, what`s the most troubling thing right now of all the dangerous liaisons he`s got now? He`s got this old -- apparently a guy who has certain old- time Southern attitudes about race, really does seem that way. I don`t know if he was ever an active segregationist, but he was there culturally.

And then he has this general that likes to take money from the Russians, the Russkies, we used to call them. And then you have got -- I don`t know where to start. And then you have got perhaps Mitt Romney, who never liked the cut of this guy`s jib, being brought in on a Sunday to talk about whether he might like a job.

What`s going on here?

PERRY BACON, NBC NEWS SENIOR POLITICAL CORRESPONDENT: I do not assume Mitt Romney or Nikki Haley are joining the administration.


BACON: I assume these are trial balloons to be reach out to other parts of the party.

Mitt Romney really criticized Donald Trump harshly in the campaign. I would say, in terms of the picks, Jared Kushner, some amorphous White House job, I`m not sure how important that is compared to Stephen Bannon, running that Web site and the things he said.

And if Jared Kushner was chief of staff or national security adviser, I would feel differently. But I still want to focus on Steve Bannon and Kris Kobach, the comments he`s made about a Muslim registry. Those are -- Kobach...


MATTHEWS: We are going to get to that Kobach thing in a minute.

BACON: Yes, Kobach, I think we should focus on...


MATTHEWS: Well, let me talk about that.

Do you think there`s any chance he will be like Jonah and the whale, that all this pressure from people, including the words you just spoke there, in terms of the tone of this thing, is just going to be too much? He`s going to have to upchuck Steve Bannon? Just we can`t handle this guy? He`s going to make us hated?


MICHAEL TOMASKY, THE DAILY BEAST: No. No, I don`t think that at all.

MATTHEWS: You think he will keep Bannon?

TOMASKY: Yes, I think he will keep Bannon, absolutely.

MATTHEWS: With all the hatred that`s going to inspire?

TOMASKY: And all the more defiantly for as long as he possibly can. Yes, he will keep Bannon for as long as he possibly can.

MATTHEWS: Well, why does he want to be known as -- he wants to be known as the change president, the guy who is going to change things for the little guy. How does this do it?

TOMASKY: Yes. Well, Bannon is change. Bannon is change.

Bannon is the kind of change Trump is perfectly fine with. He`s going to stick with him as long as he can. And this highlights, Chris, what I think is a big job for the Democrats, Bannon, Kushner, all these guys.

If Hillary Clinton had done similar things as president-elect, the Republicans would be all over it. The Democrats need to be all over this stuff from day one. Keep it percolating as a scandal.

MATTHEWS: Well, let`s go back to that question. Chuck Schumer has a different approach. He says, let`s find the areas where we can work together.

So, I mean, I look at infrastructure, Republicans usually too tight-fisted to spend any money on anything. Democrats aren`t trusted to spend the money. Now we might have a weird chance to get something built in this country again. What do you think of that?

Schumer is a smart dealer.

RUTH MARCUS, "THE WASHINGTON POST": Schumer is a smart dealer, and it`s smart to find ways to work together, when those are ways that are consistent with Democratic values, and if you could really create...

MATTHEWS: Well, spending money is a Democratic value.

MARCUS: Well...


MATTHEWS: I can tell you. I know that one.

MARCUS: If you look at the details of Trump`s infrastructure program, it`s not as much spending money as giving developers tax breaks.


MARCUS: So, take a look at that.

But can we -- I need to have my say on Jared Kushner and why we should care about that one, too.


TOMASKY: Fire away.

MARCUS: Here`s the thing.

Jeff Sessions, I think I covered those confirmation hearings. That`s some really disturbing stuff. But he`s been a senator for a long time now. His colleagues are not going to be against him.

Bannon, repulsive, I think is the word that comes to mind.

Kushner, really disturbing, because Pete is probably right on the law, but whether or not this is technically a problem under the law, the intent of the nepotism law is to keep folks like that from being official advisers. And...


MATTHEWS: Why is it any different to have Valerie Jarrett going around like a -- what do you call it -- what do you call, a commissar, people all- reaching, far-reaching advisers, or Susan Thomases in the old day?

We have had experiences with people who rove around the White House West Wing and have tremendous authority beyond their formative -- formal pay grade.

MARCUS: Well, we do have a law that makes it clear that relation, whether by blood or marriage, to the president does make a difference, number one.

Number two, Trump has told us that he`s going to "solve" -- in air quotes - - his conflict of interests problems by letting his kids run the business.

So, now you have kid Ivanka running the business, while her husband, who benefits from her wealth and from those things, helping to run the country? That just doesn`t work.

MATTHEWS: I don`t know how that`s going to work.

MARCUS: Doesn`t work.

MATTHEWS: By the way, that`s an open can of worms there, because even if Donald Trump doesn`t make any phone calls to Trump Org, he picks up the newspaper, assuming he does read "The Wall Street Journal" -- I assume he does that -- and he sees some hotel`s been sold in Uzbekistan or something, and he says, who sold that hotel? And he calls up somebody like Donald Jr. and says, why did you sell that hotel?

Isn`t that right?

MARCUS: But this will be easier. And he can say, Jared, Jared, who sold that hotel?



MATTHEWS: This is a can of worms.


MATTHEWS: I said dangerous liaisons.

TOMASKY: And let`s not forget one thing about Jared, also, no experience, no remote experience in any of this in government.

MATTHEWS: Like who? Like the president?

TOMASKY: Well, other people had experience in different levels of government.


MATTHEWS: I like Dr. Carson saying, I don`t know how to run anything. But he was running for president of the United States.


BACON: ... relieved that you didn`t take a job.


MATTHEWS: I can`t do HHS, but I can do president.

BACON: But I can be president.


MATTHEWS: Anyway, this is delusion land.

Anyway, the roundtable is sticking with us.

It shouldn`t be funny, but it is.

Up next, these three will tell me something I don`t know.

And this is HARDBALL.


CHRIS MATTHEWS, MSNBC ANCHOR: We`re back with the HARDBALL roundtable.

Ruth, tell me something I don`t know.

RUTH MARCUS, THE WASHINGTON POST: Well, I didn`t know this until I looked it up today, that anti-nepotism law we`ve been talking about, it was passed in 1967. Everybody thinks that the impetus for it was unhappiness with JFK`s hiring of Bobby Kennedy, to be his attorney general. There was no congressional debate on this, at the time. No legislative history.

And one of the people who was responsible for the loss said afterwards, it wasn`t that at all. It was there were a bunch of members of Congress at the time had their wives on the payroll.

MATTHEWS: Yes. And do you know where the nepotism, the word comes from?

MARCUS: No, you can tell us.

MATTHEWS: It was like anti-nephewism, because the popes and people like that would have sons, and would call them their nephews, but they were really sons.




PERRY BACON, NBC NEWS SENIOR POLITICAL REPORTER: -- David Leonhardt and Gail Collins of "The New York Times".

Anyway, you`ve heard about the Trump/Obama vote, people switching from Trump to Obama. But the big switch was you didn`t vote at all in 2012 and then you voted for Trump. Apparently for every one Trump/Obama voter, there are five people who didn`t vote at all in 2012, who then came out of the woodwork to vote for Donald Trump. That`s how he got these big margins in these rural counties.

MATTHEWS: That`s what he said he would do.

BACON: And he did it! Yes.

MICHAEL TOMASKY, THE DAILY BEAST: You talked briefly about Schumer --


TOMASKY: Yes. You talked briefly about Schumer and infrastructure and these kind of matters. This is a big issue right now in liberal circles. To what extent are the Democrats going to stop and say no, to what extent are they going to be accommodating to Trump? I think liberals are going to end up being kind of disappointed in this.

And there`s one thing to keep an eye out on -- 2018 elections, ten Democratic senators, incumbents, in red states, what we must now call red states. Going to have to defend --

MATTHEWS: Does that encourage them to deal or not to deal?

TOMASKY: It encourages them to deal.

MATTHEWS: I think they may deal on specific things.

TOMASKY: On some things, on some things.

MATTHEWS: Spending, Democrats like to spend.

MARCUS: Build it and they will vote.

MATTHEWS: Anyway -- huh?

MARCUS: Build it and they will vote.



That`s from the movie.

Anyway, Ruth Marcus, thank you, Perry Bacon, and Michael Tomasky.

We`ll be right back after this.


MATTHEWS: Well, today we learned that Ohio Congressman Tim Ryan, who was here on the show last night, has decided to challenge Nancy Pelosi, for leadership of the House Democrats. Ryan comes from the Youngstown area of Ohio, an area filled with the kind of voters who helped Donald Trump win that election last week. The vote on the House Democratic leadership positions will take place November 30th, coming on.

And we`ll be right back.


MATTHEWS: Welcome back to HARDBALL.

Donald Trump was elected to the White House on the promise to step up scrutiny of immigrants who may come to the country to commit acts of terror, specifically Muslims. Trump told Yahoo News that he would consider registering Muslims in a general database. A month later, he proposed a total ban. And then here`s the candidate himself, Trump.


DONALD TRUMP (R), THEN-PRESIDENTIAL CANDIDATE: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States, until our country`s representatives can figure out what the hell is going on.


MATTHEWS: Well, a lot of people wondered how he would implement these proposed changes. According to "Reuters", one transition team member in the current Kansas secretary of state, Kris Kobach, says that the Trump administration in waiting is considering a registry for immigrants from certain Muslim countries, based on a 2002 program. And Carl Higbie, a Trump supporter, was asked if the plan was constitutional.

Here`s what he said on FOX News.


CARL HIGBIE, TRUMP SUPPORTER: We`ve done it with Iran, back a while ago. We did it during World War II with Japanese, which, you know, call it what you will --

MEGYN KELLY, FOX NEWS HOST: Come on. You`re not proposing that we go back to the days of internment camps, I hope?

HIGBIE: No, no, I`m not proposing that at all, Megyn. But what I am saying is that we need to protect America first.

KELLY: You know better than to suggest that. I mean, that`s the kind of stuff that gets people scared, Carl.


MATTHEWS: Well, shortly after the bombing of Pearl Harbor, Franklin Roosevelt ordered the expulsion and interment of 120,000 people of Japanese ancestry from the West Coast. In 1998 under Reagan, the U.S. government paid reparations to Japanese Americans. In 1991, the first George Bush offered living survivors a formal letter of apology, as well.

For more, I`m joined by Carl Higbie, Trump supporter, and Dahlia Lithwick, senior editor for "Slate".

Let me go to Carl on this thing.

First of all, I think, let`s talk to the substance. I want to get to the graphic, the precedent you talked about.

Do you think we should go back to keeping a database, keeping figures on who comes in the country from Islamic countries, mostly Islamic countries?

HIGBIE: Oh, sure, you know. And I`ll say, quite frankly to the comment that Megyn Kelly made, I was shocked when she brought up the camps. I was not alluding to that at all. I was talking about the halting of immigration and also the registration of immigrants, and we did that even as recently as years here, in 2002 to 2012.

So, quite frankly, that`s going to keep America safe. I`m not afraid of people who are outside this nation. What I`d really like to do is keep America safe. And there`s plenty of pretty good Muslims out there, 1.6 billion of them. Most want to be peaceful and part of our society. We welcome them with open arms.

But we want to keep an eye on the people who are coming in because it`s very impossible to vet them right now.

MATTHEWS: Well, is it fair to use the term "registration", like they used to talk about registering members of the communist party? Is this thing you believe is appropriate? Registration, not just keeping an eye on people, making them affirmatively register as potential trouble? Is that what you`re doing?

HIGBIE: Yes, we use register like it`s a bad thing. Register your car. Most states like Connecticut, my own, we have to register our guns. We have to register a ton of things.

So, the thing is, if we have to keep a couple of tabs on a couple of people that aren`t protected to the same constitutional rights as all every day Americans, then, yes, I`m OK with that, as long as it keeps America safe.

MATTHEWS: Dahlia, your response that. That`s wrong with what he just said if you think so?

DAHLIA LITHWICK, SLATE: Well, what`s wrong is that when he had this conversation yesterday with Megyn Kelly, what he said is there`s precedent and the precedent we all assumed and I think she assumed correctly, the constitutional precedent is the 1944 case of Korematsu. That case is absolutely constitutional. He`s right. It`s never been overruled.

That case also stands as the blackest mark for civil liberties in American history. Antonin Scalia, himself, no liberal, held out Korematsu and the Dred Scott case as the two most shameful decisions in constitutional history. And so, I think when he says there`s precedent for this, there`s precedent, that doesn`t mean normatively it`s something we should do.

HIGBIE: So, what would you say about (INAUDIBLE)?

MATTHEWS: It`s something we look at as despicable.

HIGBIE: What would you say about (INAUDIBLE)?

MATTHEWS: Let`s separate these two questions. One is the illusion to the Japanese internment, internment. Internment. It`s not internment, that`s burying somebody. That is one issue we agree was a bad experience.

Do you agree with that, Carl?

HIGBIE: One hundred percent. I was shocked when --

MATTHEWS: Let`s all agree on that.

HIGBIE: I was shocked when Megyn brought it up.

MATTHEWS: She brought it up. OK, that`s not the way it was reported. It sounded like you brought it up.

HIGBIE: Well, that`s why Donald Trump won the election, the mainstream media falsely reports a lot of things.

MATTHEWS: Well, I`m trying to do my job here.

So, let me go back -- so you don`t even want to defend that. I agree with you. The United States government really apologized for that and the American people did through the government.

So, let me go back to Dahlia on the question. Should we keep a database or registration of people coming here, for example, from Syria or from anywhere? Saudi, Iraq, any of those wonderful places. What do you think?

LITHWICK: Well, this is the trick. The trick is to get around having a registry that`s based on religion. We do it on --

MATTHEWS: No, it`s not, it`s based on coming from those countries.

LITHWICK: Right. With a country of origin.

MATTHEWS: What do you say of that?

LITHWICK: It just so happens 24 out of the 25 countries that were on the list of suspect countries happened to be majority Muslim countries. So let`s be very clear that we are talking about a proxy for keeping Muslims under a separate kind of scrutiny. This isn`t just a list of other countries. This is a list and North Korea that`s the 25th, of countries that are majority Muslims. So let`s call it what it is.

MATTHEWS: Where`s the terrorism coming from, where`s terrorism coming from?

HIGBIE: Thank you, Chris.

LITHWICK: Well, I think, Chris, we just have to be honest if we`re going to have heightened scrutiny for Muslims, we`re going to have to allow all the other things -- the other thing that`s important --

MATTHEWS: I`m just asking you, where`s the terrorism coming from? Where should we be looking out for terrorists from?

LITHWICK: The terrorism comes from all sorts of places. We have people that are French nationals, we have people all over Europe, we have people - - it`s not --

HIGBIE: What are they swearing allegiance to?

MATTHEWS: Go ahead. I want you to debate this. Go ahead, Carl.

HIGBIE: What are they swearing allegiance to? They`re not swearing allegiance to France. They`re swearing allegiance to an extreme faction of Islam, that represents, by the way, a very small portion of the entire religion. But they are nevertheless a Muslim problem within the overall benevolent religion of Islam.

MATTHEWS: Let me ask you, Carl, about this --

LITHWICK: If you have a problem -- Carl, if you have a problem with people in France who are swearing fealty to a Muslim entity, then your program doesn`t screen them out.

HIGBIE: But they all came from that area.

MATTHEWS: Carl, I agree.

Let me ask you this. How do you avoid making people who are Islamic American -- Islamic, that`s their religion, their nationality is American. They came here, they were born here, they want to be American. They`re Americans in most cases.

How do you not make them feel like outcasts when you start registering them?

HIGBIE: Don`t be afraid. We`re not coming for you. We`re not putting you in camps. We`re not doing any of that stuff.

And any falsehood that`s portrayed by an publication saying that they`re going to do that is fundamentally false. Look, this is one of those things that`s been blown out of proportion. We`re talking about people coming into America that want to be part of our society. We just want to keep tabs and make sure they`re not mart of the bad guys we`re trying to keep out.

MATTHEWS: This will be a debate in the country.

Thank you, Carl Higbie. Thank you, Dahlia Lithwick.

When we return, let me finish with tonight`s edition of Trump watch. You`re watching HARDBALL, the place for politics.


MATTHEWS: Trump watch, November 17th, 2016.

Awaiting the next appointment from Trump Tower, I`ve been thinking back on how we got here -- to this extraordinary upset in the Electoral College.

Let me start with what happened 16 years ago at the millennium, then it was one state in the end seemed to decide it all, Florida. We all noted how things would have been simpler if Ralph Nader wouldn`t have campaigned and won 92,000 down there in the Sunshine State. Then, Al Gore would have won Florida, won in the Electoral College, won the ball game.

So, let`s look at the impact of the third-party candidate this time around. Look at the states that made the difference this time. Florida with its 29 electoral votes, Pennsylvania with its 20, Michigan with 16, Wisconsin with 10. That`s 75 electoral votes in all.

In every one of these states, the number of people who voted for third- party candidate Gary Johnson well exceeded the difference between Trump and Hillary. Every one of these states saw Clinton losing to Trump by far less than the vote that went to Johnson, a candidate who had no real chance of winning.

I do not know why people vote this way. This clearly is their right, clearly their right. But why is it their choice? Do they care out their vote, their choice of whom to vote for affects the outcome? If not, then the vote for a third-party candidate makes perfect sense.

But if they do care how their choice of whom to vote for affects the final outcome, why don`t they get serious and simply and courageously vote for the person they intend to be president? It would spare the country from picking a president in some part through unintended consequences, which is not the best way to do it.

And that`s HARDBALL for now. Thanks for being with us.

"ALL IN WITH CHRIS HAYES" starts right now.