Show: HARDBALL Date: November 20, 2018 Guest: Richard Blumenthal, Bret Stephens, Mieke Eoyang, Laura Bassett, Zerlina Maxwell, Noah Rothman
STEVE KORNACKI, MSNBC HOST: Trump wanted to prosecute his political opponents. Let`s play HARDBALL.
Good evening. I`m Steve Kornacki, in for Chris Matthews.
A bombshell new report tonight has revealed that President Trump discussed using the department of justice to pursue his political enemies, raising new questions about potential abuse of power and possible obstruction of justice.
"The New York Times" is reporting tonight that quote "President Trump told the White House counsel in the spring that he wanted to order the department of justice to prosecute two of his political adversaries, his 2016 challenger Hillary Clinton and the former FBI Director James Comey.
However, White House Counsel Don McGahn, according to the Times, rebuffed the President from the report.
Quote "McGahn said that while he could request an investigation, that, too, could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rival, he could face a range of consequences, including possible impeachment."
The "Times" points that the encounter was one of the most blatant examples yet of how Mr. Trump used the typically independent justice department as a tool to be wielded against his political enemies.
This comes after the President`s appointing of acting attorney general Matt Whitaker has raised questions about the independence of the justice department especially since Whitaker has been described as Trump`s eyes and ears inside the country`s top law enforcement agency.
In fact, Whitaker said he would indict Hillary Clinton in a 2016 "USA today" op-ed. Despite McGahn`s recorded opposition to the idea, there are also indications the President hasn`t given up on it. According to two people who have spoken to Trump quote "the President has continued to private live discuss the matter, including the possible appointment of a second special counsel to investigate both Mrs. Clinton and Mr. Comey.
I`m joined now by Democratic senator Richard Blumenthal of Connecticut, Michael Schmidt, he is the co-author of that new story in "The New York Times" we are talking about here, Caroline Polisi is a white collar defense attorney, one of her clients is former Trump campaign aide George Papadopoulos. And Air Melber is MSNBC chief legal correspondent.
Thank you all for being with us.
Michael Schmidt, let me just start with you. You have the reporting on this. And I just want to you to take us through this. I want to understand exactly what happened in this exchange between Donald Trump and Don McGahn who was the White House counsel then. Did Trump order McGahn to pursue through the justice department prosecutions and investigations of Hillary Clinton and Comey?
MICHAEL SCHMIDT, REPORTER, THE NEW YORK TIMES: Well, Trump said he wanted to do this. And McGahn had to explain to him that he did not have the power to tell them to prosecute someone. What he could do is he could ask them to investigate, but even that was problematic. That was not going to be a good thing for the President.
But what McGahn did is McGahn had sort of learned how to slow roll the President and try and get through these events. And he said, look, I will write a memo for you that lays out why this is not a good idea, why is not a good idea to use your power to ask the justice department to investigate.
So lawyers in the White House counsel`s office wrote about the problems that could come of that. The President could be impeached. The President could be voted out of office. The charges could be dropped. These were significant consequences that the President would face.
Now we don`t know that the President ever read this letter -- this memo -- but we do know the President has continued to talk about this issue. This is something he has talked about publicly and something he talked about privately. And it`s something that he believes the justice department has really let him down on, particularly the FBI director, Christopher Wray.
KORNACKI: Yes. And I`m curious about that because you say publicly, we do remember, I think all of us, that debate moment in the 2016 campaign where Donald Trump talked about potentially prosecuting Hillary Clinton. As President, trying to pursue that somehow. That after the election, and the immediate aftermath, he said, no. Never mind. And now, your reporting is he has been talking about this privately.
McGahn is gone now. As we mentioned, Whitaker is in at least temporarily at the justice department. You say this is something -- you report this is something he is still talking about. Who is he talking about this with?
SCHMIDT: He is talking about it with, you know, his friends and associates. He is complaining about it. And he has spoken about it publicly as well as well. That`s the unusual thing about the President that he will go out and say things that if we found out that he said them in private, would be a huge deal. But he goes out and says them publicly. And he has repeatedly done this on matters related to the justice department weighing in on criminal investigations.
And the White House officials after many administrations after Nixon have tried to put distance between the President and the justice department because they know how corrupting it could be or certainly appear to be, if the President was trying to weigh in on criminal investigations.
But this is a line the President has repeatedly gone over. And this issue, the issue of the President meddling in justice department is something that Bob Mueller is looking at, as he looks at the question of whether he tried to obstruct justice.
KORNACKI: Yes. And Ari Melber, that seems to be a question to me here, the issue of Mueller, has this open investigation, is this the sort of thing you would expect he would be interested in? And if so, what angle would he be interested in it from?
ARI MELBER, MSNBC CHIEF LEGAL CORRESPONDENT: Absolutely. I mean, the only thing worse than firing an FBI director because he is investigating your White House is then trying to get that FBI director prosecuted or jailed. That is what we are told the request is. That`s the reasoning. That is banana republic territory.
Everything that Don McGahn knows, Bob Mueller knows. He has an obligation to comply. He is a lawyer. He has been very careful. He has had his leaks. And so, we would expect that while we are learning about this tonight which is a huge deal, Mueller already knows about it and has it folded up into what I imagine, and I`m not doing primary reporting on this, but what I imagine would be the elements of obstruction.
And a mistake here and an angry statement there is different than a prolonged pattern over months to try to black ball, destroy the careers or even the liberty of individuals or key witnesses who are involved in the obstruction probe. I think the "New York Times" today has one of the biggest stories we have seen in the entire Mueller probe.
KORNACKI: While the "New York Times" report says that Trump continues to privately discuss whether to have the DOJ prosecute the President has not as we have been saying shied away from publicly speaking out on James Comey.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Comey is a leaker and he is a liar. And not only on this stuff, has he been leaking for years. No collusion. No obstruction. He is a leaker. He gave it to a friend to leak classified information. It`s all classified. It was totally classified. So illegally he did an illegal act. Look, he is a showboat. He is a grandstander. The FBI has been in turmoil. You know that. I know that. Everybody knows that.
(END VIDEO CLIP)
KORNACKI: And likewise as we mentioned a minute ago, as a candidate for President in 2016, and as president, Trump has said he would like to go after Hillary Clinton, even promising to appoint special prosecutor.
(BEGIN VIDEO CLIP)
TRUMP: If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation because there has never been so many lies, so much deception.
The FBI and the department of justice created a fraud in allowing Hillary Clinton to get away with her terrible, terrible crimes.
I look at what`s happening with the justice department. Why aren`t they going after Hillary Clinton with her emails and with the dossier?
(END VIDEO CLIP)
KORNACKI: Senator Blumenthal, I`m curious, on Capitol Hill how do you think a report like this will land? How do you think a revelation like this will land? What will the ramifications be? Democrats taking control of the House. They will still be on the minority on the Senate side. The Democrats will have a little bit more power there come January on Capitol Hill. How will this report intersect with that? Will it?
SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: This excellent reporting is really a bombshell. It will be profoundly significant as evidence of criminal intent. The hardest element to prove in an obstruction of justice case. It shows an absolute contempt for the rule of law, repugnant and abhorrent in anyone, but particularly the President of the United States. And it shows the increasing jeopardy for our justice system.
This contempt for the rule of law with Matthew Whitaker as the acting attorney general, a Trump loyalist. In fact, his only qualification is that he is a Trump loyalist will mean the potential for Trump acting on these absolutely abhorrent impulses.
And finally, it will create momentum for real, enforceable rules that govern the relationship between the White House and the department of justice. There have been memos that set forth practices and protocols, policies and norms, but not really enforceable rules. And clearly we are at the point now where Congress must have hearings and must set those rules.
KORNACKI: Caroline Polisi, in terms of this Specter of obstruction of justice, the abuse of power, these terms being thrown around here, the defense that could potentially emerge on a charge like that from the White House, would it be OK if Trump happened to suggest this, didn`t act on it? There was - that there was, you know, Trump was basically shooting his mouth off and never --? Would that be the defense that somebody in that position --?
CAROLINE POLISI, CRIMINAL DEFENSE ATTORNEY: Right. Yes, I would say, first of all, a little part of me dies every time I hear reporting about an attorney talking with his client. Of course, Don McGahn is the White House counsel. He is not President Trump`s personal attorney. But, you know, there is an argument to be make, including executive power as well as attorney-client privilege that, you know, somebody should be free to talk about things at length with their attorney. And of course, this hasn`t come to (INAUDIBLE) yet.
I will just say that, you know, legally speaking, there is no requirement that there`s an underlying crime of collusion or whatever we are going to call it, conspiracy, to you know, undermine the free and fair election in United States in order for Mueller to charge an obstruction count, OK. We all know that.
However, politically speaking, I think it would be risky for Mueller to charge obstruction count without that underlying crime there. So I think it is all or nothing. I think it is either you get both of them there or neither.
KORNACKI: And Michael Schmidt --.
MELBER: Steve.
KORNACKI: Yes, I`m sorry. Is that Ari?
MELBER: Yes. I was just going to throw in real quick. There is no attorney-client privilege between the President and the White House counsel. John Dean in Watergate is a memory lane for a lot of people on that. And so, this is a huge deal precisely because this is in private musings.
POLISI: Right.
MELBER: This is the President trying to directly order through McGahn as his intermediary to DOJ, these prosecutions of Comey and Clinton. This is huge banana republic-type territory. And so, it is not, oh, I had a private thought and I was musing with my private attorney.
This is the government attorney paid by our tax dollars. And this is conduct that even he warned the President, I don`t use the "I" word a lot. Don McGahn according to Michael`s excellent reporting tonight allegedly here warned the President you do this, we are not just talking about a misdemeanor charge here or someone else in trouble. We are talking about a high crime of impeachment. And he gave that counsel during a time when the Republicans controlled the entire Congress.
KORNACKI: And Michael, is there context here -- you say this was in the spring, spring of 2018 when the President had this conversation with McGahn. Is there context about what was going on more broadly that it might have precipitated him having the conversation at that moment?
SCHMIDT: Well, (INAUDIBLE) tumultuous for the President, I guess. There`s a lot of tumultuous times for the President. But in terms of the investigation of the justice department, there was a shake-up on his legal team. Rudy Giuliani was going to come in and replace John Dowd. There was a disagreement about whether the President would do an interview. John Dowd did not want him to doing an interview and quit the team because of that.
But more importantly, there was a Michael Cohen raid where the justice department and the FBI got a search warrant. They raided the offices and the residences of Cohen, taking a wide range of stuff. That was a very aggressive move to go into the offices of the President`s lawyer and take things from there for a criminal investigation. We know that really bothered the President and was in some way as game changer for the posture that the President and his lawyers have taken towards Mueller and the justice department since then, really upping and launching more attacks on them.
KORNACKI: And senator Blumenthal, again, I`m just curious in terms of potential fallout here on Capitol Hill with your colleagues, I`m wondering too about this issue of Whitaker`s appointment, temporary appointment as attorney general, the administration fighting to keep him in there for I think up to about seven months potentially. Will this have a bearing on that? And specifically, I think I`m wondering have you had any conversations yet. Have you talked it all to your Republican colleagues in the Senate, any republican colleagues in the Senate in D.C.? They are thinking shifting on that front at all.
BLUMENTHAL: Key question, Steve. And, yes, I have. Not since this report but since Whitaker`s appointment and Jeff Session`s firing. I think there`s a heightened awareness of the danger to our democracy. With Whitaker there, at any moment he could decline to approve a subpoena or an indictment. He could cut funding for the special counsel. He could cut authority, in other words, reduce jurisdiction. And all of it without any public disclosure.
So I think there should be and perhaps will be an increased appetite on the part of my Republican colleagues for the special counsel protection legislation, for other legislation that I will be introducing that will require a report, disclosure of all the findings and evidence if the special counsel is ever forced to resign or if he is fired and completes a report. And I think also there is a need to rein in the communications between the White House and this acting attorney general.
The department of justice should be a bedrock of independence. The attorney general of the United States is not the President`s lawyer. He is the people`s lawyer. And in this instance particularly, that kind of independence need to be protected.
KORNACKI: Now all of this of course comes today also with this piece of news, Trump`s legal team today saying that they have submitted the answers to Robert Mueller`s written questions to the office of the special counsel. However, in so doing, Rudy Giuliani also said quote "it has been our position from the outside that much of what has been asked raised questions of constitutional issues and was beyond the scope of the legitimate inquiry. This remains our positions today. The President has nonetheless provided unprecedented cooperation."
Ari Melber, I will ask you to read between the lines there potentially. What do you make of that development and that reaction from the President`s lawyer?
MELBER: Well, you hit it on the head, Steve. I mean, with everything else going on, this is an important day in the probe because the President for the first time ever has submitted his actual answers on these Russia questions. Maybe he has good answers.
I struggle to think how he would have good answers for what Michael and the Times have reported today. But on the Russia side, he may. They have submitted them. I think what we are now seeing in that statement and what we are going to see continued is Rudy Giuliani and others trying to put the pressure on to finish this thing up.
And so that`s something that lawyers can do in the private side if they want to make their opinions known but they don`t get to decide the timeline any more than El Chapo`s defense attorneys decide the timeline for how the U.S. is going to prosecute him. It is just how it works. And I don`t see that to be inflammatory. That is true even if the investigation results in fewer charges or nothing that implicates Donald Trump personally. So Rudy doesn`t control the timeline.
And the other thing that is swirling around all of this and I don`t know if you have any time left, I`m very curious, Michael is not going to talk about his sources, but I`m very curious if there is any clues as to why this bombshell news about Comey and Clinton is coming out right now.
KORNACKI: I don`t mean to put you on the spot, Michael Schmidt, you are happy to take a pass on that, but Ari raises an interesting question. Is there any response to you on that part?
SCHMIDT: When our stories are ready, we run them.
KORNACKI: There he is. I thought he might say that but I figure I would give him a chance.
Michael Schmidt, Ari Melber, Senator Richard Blumenthal and Caroline Polisi, I thank you all for joining us.
And there is more breaking news tonight. President Trump defended his daughter today for using her personal email to conduct government business. And he is also defending Saudi Arabia despite CIA where the CIA reportedly concluding with high confidence that the Saudi crowned prince ordered the murder of journalist Jamal Khashoggi.
This is HARDBALL where the action is.
(COMMERCIAL BREAK)
KORNACKI: President Trump today defended his daughter Ivanka Trump, after The Washington Post reported that she repeatedly used her personal e-mail to conduct government business while serving in the White House throughout 2017.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Just so you understand, early on, and for a little period of time, Ivanka did some e-mails. They weren`t classified like Hillary Clinton.
They weren`t deleted like Hillary Clinton, who deleted 33. She wasn`t hiring. She wasn`t doing anything to hide her e-mails. You`re talking about a whole different -- you`re talking about all fake news.
So, what Ivanka did, it`s all in the presidential records. Everything is there. There was no deletion. There was no nothing. What it is, is a false story.
Hillary Clinton deleted 33,000 e-mails. She had a server in the basement. That`s the real story.
(END VIDEO CLIP)
KORNACKI: The Washington Post revealed last night that when Ivanka Trump was questioned about her use of a personal e-mail account -- quote -- "She said she wasn`t familiar with some details of the rules, according to people with knowledge of her reaction."
Yet the risk for Trump is that her actions may have violated the Presidential Records Act, which mandates the preservation of all White House communications.
This comes after Politico revealed last year that Jared Kushner had also used a personal no e-mail account to conduct government business as well.
According to a review conducted by Ivanka Trump`s attorneys, they found that -- quote -- "Fewer than 100 e-mails related to official business and fewer than 1,000 that pertain to scheduling and travel are involved."
Joining me now is Mieke Eoyang, vice president of the national security program at Third Way. And Bret Stephens is a columnist for The New York Times.
Mieke, let me just start with you.
You heard president there, who made quite an issue in the 2016 campaign of Hillary Clinton and the issue of e-mails, trying to say there is no parallel there at all between Hillary Clinton and Ivanka. What do you make of his attempt to draw distinctions there?
MIEKE EOYANG, THIRD WAY: Look, he`s trying to protect his daughter. And we understand that.
But we don`t -- it`s not the same circumstance. And we don`t know whether or not all those e-mails are, in fact, unclassified. We don`t know whether or not they all went into the presidential records, as they`re supposed to.
And so I think it`s fair that people asked for some oversight about whether or not his statements are in fact true. But, more importantly, this is an example of the lax adherence to security rules by the Trump family.
And we saw this with the president in his use of his personal iPhone, the ways that he continues to use Twitter, the ways he`s talked about classified information in public settings. They just don`t appreciate how serious these concerns are.
KORNACKI: Yes. And I think, Bret, that`s the thing that kind of jumps out at me, when I saw that headline and read the story yesterday, the emphasis that Trump placed on the issue of e-mail with Hillary Clinton in 2016.
I know he`s trying to draw all these distinctions here. And we will see as we learn more about Ivanka exactly how analogous the situations are.
But the fact that this was even an open issue, the possibility of somebody like Ivanka Trump using a personal e-mail address for government business for months apparently in the Trump administration, after making that such a point of emphasis in the campaign.
BRET STEPHENS, "THE NEW YORK TIMES": Well, I think we have to lock Ivanka Trump up. That`s the only answer here.
No, I mean, I say that in jest, obviously. It tells you that maybe Ivanka Trump was asleep during her father`s entire campaign or never believed that he was going to win, because what what`s really incredible about this story isn`t what sounds to me like something like a misdemeanor offense.
It`s that her father, having made this the central or a central issue of his campaign for president, that she shouldn`t have been absolutely scrupulous and on top of the rules from the get-go.
And, of course, the second issue is, this is what happens when you hire your daughter or you hire your relatives for important government positions. They don`t know what the rules are. That`s why you shouldn`t hire nepotistically as a matter of practice -- of good practice in government.
KORNACKI: Also, people say the issue with nepotism is, when you get in a situation like this, you maybe are more prone to defend the relative in a public setting, because they are your relative, after all.
Meanwhile, President Trump today is again deflecting blame from Saudi Arabia, even though the CIA has reportedly concluded with high confidence that the Saudi crown prince ordered the murder of journalist Jamal Khashoggi, who was a legal U.S. resident.
In a press release which contained a total of six exclamation points, Trump said today that -- quote -- "It could very well be that the Crown Prince had knowledge of this tragic event -- maybe he did and maybe he didn`t!"
The president also repeated unsubstantiated Saudi government smears about Khashoggi, saying -- quote -- "Representatives of Saudi Arabia say that Jamal Khashoggi was `an enemy of the state` and a member of the Muslim Brotherhood."
Here`s how Trump explained why he sided with the Saudi government over his own intelligence community.
(BEGIN VIDEO CLIP)
QUESTION: Why are you siding with the Saudis over your own intelligence community?
TRUMP: Because it`s America first for me. It`s all about America first.
We`re not going to give up hundreds of billions of dollars in orders and let Russia, China and everybody else have them.
Saudi Arabia, if we broke with them, I think your oil prices would go through the roof. I have kept him down. They have helped me keep them down. It`s a very simple equation for me. I`m about make America great again. And I`m about America first.
(END VIDEO CLIP)
KORNACKI: What do you make of that, that decision, and the way he`s framing it?
STEPHENS: Well, I mean, it`s ugly on so many levels.
First of all, this is a make Saudi Arabia first type of foreign policy. I mean, we`re the superpower. Saudi Arabia is our client. We`re also the world`s number one energy producer. So the suggestion that Saudi Arabia has us over the proverbial barrel when it comes to energy simply is a view out of the 1970s or another decade.
But what was really ugly about the statement was the suggestion that Saudi Arabia or MBS ordering the gruesome murder of a Washington Post columnist was somehow an acceptable price, given, what, I think he pointed out $450 billion. That`s his claim. I don`t think it`s anywhere near that much in money coming into the United States.
And it`s precisely that kind of interest-based foreign policy which gets us into trouble, gets us into trouble not least with the people in the Middle East who look to American values when it comes to democracy, individual rights, respect for free press, respect for minorities, respect for dissidents.
Those are the reasons they look to us as a lodestar. We are now adopting what amounts to a purely mercantilist foreign policy that might -- might have a place in Persian Gulf politics, shouldn`t have a place in American politics.
KORNACKI: Mieke Eoyang, if you had been advising the president on how to handle this and what to say today, what posture to take, what would you have told him?
EOYANG: Look, I don`t think that he can continue to defend Saudi Arabia, the way that he has.
It very clear that you have to call your friends to account, even when, especially when they are doing terrible things. And we all agree, even the president will acknowledge, that the killing of Jamal Khashoggi is an atrocity.
And that he will not believe his own intelligence agencies when they go out there and they find the truth for him, sometimes at great risk themselves, and he`s making foreign policy based on what he believes, not what is true, that`s very dangerous for America and America`s actions in the region, when he`s also mischaracterizing the civil war in Yemen and Saudi Arabia`s involvement in it, when he`s mischaracterizing the size of these arms deals.
The president is not actually leveling with the American people about what`s really at stake here.
KORNACKI: All right, Mieke Eoyang, Bret Stephens, thank you both for being with us.
And up next: With most of the provisional and absentee ballots counted in the final midterm races on the board, the map on the House side there, it has gotten a little bit bluer.
I`m going to head over to the big board and break down the new races about to be called and then what`s left there, all things midterms.
This is HARDBALL, where the action is.
(COMMERCIAL BREAK) KORNACKI: All right, welcome back to HARDBALL.
We have been monitoring. We called it election night originally. Then it became election week. It`s almost been election month.
The vote tallies in some places, they take a while to come in. The picture changes a little bit. So we have been keeping tabs on the exact size of the Democratic wave in the House.
And let me show you some new updates for you. Take a look here, where things stand right now.
This is the wrong screen.
I want to show you this, races that have flipped. And, right now, here`s what you see. Last night, right around this time, we told you about the 2nd District of New Mexico. It became the latest Republican seat that Democrats flipped. With that one around this time last night, it put their net gain at 38 seats.
What is happening right now? Two things are happening right now. One is in the 4th District of Utah. This, you may know as Mia Love`s district, incumbent Republican Mia Love. All of the votes -- it appears tonight they finished their canvassing in the two counties that make up this district.
And you can see Ben McAdams, the Democratic challenger, leading by almost 700 votes. That looks like it is just -- and I mean just -- higher than the threshold that would allow for a recount. And so, in the last few minutes, the Associated Press has called this race for Ben McAdams, for the Democratic challenger.
NBC News` decision desk has not made that decision yet, but I would say right now you`re looking at McAdams sitting in a very good position here. And assuming that does hold, what that would do, Utah 4 would flip. That would become a Democratic pickup.
I thought that would turn blue dramatically. It didn`t.
But that would be the 39th net pickup for Democrats. It would give them a net gain of 39 seats. You would have Georgia 7, where it looks like there`s going to be recount. Going into that, the Republican, Rob Woodall, leading by a couple hundred votes right there. If that holds on, then the Democrats would be at 39.
And then the only other piece of suspense would be this one. And this is an interesting one, because this is one of those sneaky races that, on election night, we didn`t think was in play. But in the late tallies that have come in day after day after day has become the subject of some -- some suspense, the 21st District of California.
This is in the Central Valley. David Valadao is the Republican incumbent here. You see, we have declared him the winner. Right now, what you have seen, though, as the late tallies have come in -- look at this -- T.J. Cox, his Democratic challenger, has crept inside of 1,000 votes.
That`s a 968-vote gap separating Cox from Valadao, again, Republican incumbent. Take a closer look at this district, again, the Central Valley of California. These are the tallies you see, like Fresno County, we think the most outstanding vote. We think there`s maybe 10,000 votes to come in still in this district.
The biggest chunk of it, we think, will be from Fresno County. Valadao has been leading that overall. But, in the vote that`s come in since Election Day in Fresno County, that late-arriving vote, that`s favored Cox a little bit.
So you have got votes there. You have got votes to come in as well from Kern County, where Cox has already been doing really well. You got votes to come in as well from Kings County. That`s sort of the base there for Valadao.
So, it`s unclear exactly how many are left in each county. It`s unclear exactly how many votes are left overall. But the situation is that, from an election night, were Valadao looked like he was sitting pretty in this race, night after night, that has just drained. And it is down inside of 1,000 votes right now to about 900.
We want to see, as more votes come in, is there a scenario where Cox actually leapfrogs Valadao and wins this? If he does, it would appear then that Democrats would actually be able to get 40 seats, a net gain of 40 seats.
That`s if they get the Mia Love seat in Utah that the AP has called tonight. We will tell you if NBC News makes that same designation.
And then, if they can pull a rabbit out of the hat in the Central Valley of California and knock off Valadao with those final outstanding votes in the 21st District of California, if Democrats could do that, it would be a net gain of the big four-oh for them, 4-0, 40 seats.
So that`s what is still left on the board. That`s what we`re still keeping an eye on here, as election month -- we`re going to start calling it -- rolls on.
Up next: more on tonight`s breaking news that President Trump reportedly hoped to use the Justice Department as a weapon against his political rivals.
You`re watching HARDBALL.
(COMMERCIAL BREAK)
KORNACKI: Welcome back to HARDBALL.
More now on today`s breaking story, "The New York Times" reporting that President Trump wanted to order the Justice Department to prosecute his 2016 rival, Hillary Clinton, and former FBI Director James Comey.
"The Times" report notes that after the president inquired about the possibility this past spring, his legal team at the White House, quote, laid out a series of consequences. For starters, Justice Department lawyers could refuse to follow Mr. Trump`s orders, even before an investigation began, setting off another political firestorm. Congress, they added, could investigate the president`s role in the prosecution and begin impeachment proceedings.
Ultimately, the lawyers warned, Mr. Trump could be voted out of office if voters believed he had abused his power.
For more, I`m joined by the HARDBALL roundtable, Laura Bassett, senior political reporter for "The Huffington Post", Zerlina Maxwell, director of progressive programming for Sirius XM, and Noah Rothman, associate editor for "Commentary Magazine".
All right. We`ve had probably about an hour and a half now I think to digest this story. I`m just curious. It`s the challenge, one of the challenges of the Trump era is you get these explosive reports, these bombshell reports and you try to put them in some perspective sort of on the fly. I`m going to ask you and challenge you all to do that right now.
Noah, we`ve had 42,000 bombshell stories in the Trump era. Where do you think in scale this one fits?
NOAH ROTHMAN, ASSOCIATE EDITOR, COMMENTARY MAGAZINE: I think this is a big one because primarily there is a paper trail. The counsel`s office has composed a memo now, identifying when this happened, what their objections were, what the president wanted to do. That means that`s going to come out at some point. Investigators are going to find that, we`re going to identify what the process was.
And for those who think there`s untoward about investigating Hillary Clinton for the Uranium One scandal, as it were, let`s put that aside for now, the notion that James Comey was also in his sights, I`m curious to know what legal exposure the FBI director supposedly has here. There`s very little to justify that impulse. It seems very much to be an impulse. And that`s something Democrats when they take over the House are going to look into.
KORNACKI: That seems to be the key here. Among other things, Democrats taking over the House means they have the power of subpoena for these documents, to know what they`re talking about, if the Democrats are interested in obtaining, and they may have an avenue now.
ZERLINA MAXWELL, DIRECTOR OF PROGRESSIVE PROGRAMMING, SIRIUSXM RADIO: Right. So, Steve, you`ve been giving us updates on the midterm elections, and, you know, largely people have stopped talking about it because there have been other breaking stories in the past couple of weeks, but it`s a new day. When these stories come out, it is no longer Paul Ryan`s comment and no condemnation from Mitch McConnell. Now, you actually have a body of Congress that is going to do the investigative work that an oversight of the Constitution requires, and I think that that`s really important.
So, while I wasn`t like, whoa, this story is ground breaking, I think what makes it different is the make-up of the Congress. And it really just validates what Donald Trump has been saying and tweeting for the past two years anyway. So, it`s interesting see that, you know, while his supporters say, well, we shouldn`t take him literally, that we absolutely should take him literally, because he`s saying what he`s doing in private.
So, if he`s saying James Comey is a leaker and he should be investigated, we should take that as a literal statement that the president is actually taking steps to do behind the scenes, because that is what this report confirms.
KORNACKI: Laura, same question to you, Laura, just the scale of this, they`ve been trying to put this on a scale, I should say, compared to everything else we`ve been talking about for the last two years or so, where do you put this? What`s your initial reaction?
LAURA BASSETT, SENIOR POLITICAL REPORTER, HUFFPOST: Well, it`s an attack on democracy. He`s using the Justice Department as political personal tool, as his own personal lawyer. And this is not normal. This is authoritarian leaders do.
And we know that Trump has these authoritarian instincts and that the White House is constantly trying to rein them in. But at the same time, we know that he appointed Whitaker, acting attorney general, who wrote in the "USA Today", in an op-ed two years ago, that the Justice Department should be investigating and prosecuting Hillary Clinton. And so, he is actually making moves towards doing this. I don`t think that we should take it as an empty threat at all.
KORNACKI: All right. Meanwhile, President Trump today also weighed in on the Mississippi Senate runoff between Senator Cindy Hyde-Smith and Democratic challenger Mike Espy.
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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, Cindy Hyde-Smith is a spectacular woman. She`s a great senator. She came in -- she`s done a fantastic job in a short period of time. She made a statement, which I know that she feels very badly about it.
And it was just sort of said in jest, as she said and she`s a tremendous woman. And it`s a shame that she has to go through this. I think she`s going to do very well.
(END VIDEO CLIP)
KORNACKI: The contest has made headlines with the issue of race front and center. "Politico" describing it as, quote, a bare knuckle brawl infused with ugly racial politics. Earlier this month, video emerged of Hyde-Smith seeming to joke about attending a public hanging.
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SEN. CINDY HYDE-SMITH (R), MISSISSIPPI: If he invited me to a public hanging, I`d be on the front row.
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KORNACKI: Tonight, Hyde-Smith and Espy will face off in their only debate before next week`s runoff election.
I`m just going to throw this out to the panel. You know, Mississippi, the last time a Democrat won a Senate election in Mississippi was 1982. It was a very different kind of Democrat back then who could win in Mississippi. The voting patterns in Mississippi are I think more polarized on racial lines than any other state in the country.
Democrats have been making a little bit of noise about this one. There`s been some media tension.
Does anybody actually think that Mike Espy, the Democrat, has a chance winning out this election? I`ll put that out there. Anybody want to --
MAXWELL: I wouldn`t say -- I wouldn`t say winning. But I think that, you know, Donald Trump is the president. So I worked for Hillary Clinton and I`m not somebody who has -- can seriously say that it can`t happen, right? Because we are living in the, you know, unbelievable moment to quote Katy Tur`s book title.
But in Mississippi, with a 35 percent black electorate and the fact that she did make a racist comment, I mean, joking about a public hanging in Mississippi, where there were more lynchings between the civil war and the civil rights movement that any other state in the entire United States, going to a public hanging was an activity for families in Mississippi at a point in American history.
It was an activity where you`d bring your whole family with your kids and you`d take photos in front of lynched black people. And so to say -- and her apology was not sufficient in any way. She didn`t take responsibility for the comment or the historical context.
So I think that, yes, it`s possible for him to come very close, a lot closer than anyone would have imagined. You never really know because with an electorate this large of African-American voters, they just needed a reason to come out and vote. And if she`s going to say something this racist, that`s their reason.
KORNACKI: The concern for Republicans, Noah, was that -- this is that race where you had three candidates in the preliminary, Chris McDaniel, Cindy Hyde-Smith, were the two Republicans, the Republican establishment thought just get -- just make sure McDaniel doesn`t get into that final, you won`t have any of these issues. Now, they have some issues I think they were contending with.
How concerned the Republicans be about this one?
ROTHMAN: They should be concerned. I think a really charitable explanation for this gaffe, and it is a gaffe, is that she was trying to be complementary towards this person and overreached. It`s become a scandal. She`s going to try to address it tonight.
If there`s more legs to it after she addresses it tonight, if she creates another news cycle out of this, then it could be a problem. Otherwise, it stands to be a gaffe and I think it will be swamped by whatever brings -- whatever happens tonight at this debate.
The math, as you say, is very difficult for her in this primary, the Democrat received just a little over 40 percent of the vote, compared to the other two Republicans who altogether almost made up almost 60 percent of the vote. That`s a lot of Republican voters you have to draw over to the Democrats.
KORNACKI: Which tends to be about the ceiling for Democrats in Mississippi. Of course, the context for all this, part of it at least is Alabama last year. Roy Moore did lose. Now that was an extraordinary set of circumstances with Roy Moore.
How do you feel with a comparison with the hot water she`s gotten to versus Roy Moore?
BASSETT: Well, look, I also would compare it to recent elections in Florida, the gubernatorial elections in Florida and Georgia which I followed very closely, where two black candidates came extremely close to winning just amid extreme racism and voter suppression. There`s also a lot of voter suppression happening in Mississippi.
The difference is, I think that Espy has been trying to turn out moderate white voters. And that`s what he needs an extraordinary turnout among African-American voters and he needs a quarter of white voters to turn out. And he`s actually been making an appeal to those moderate white voters who might feel deeply embarrassed about their state being this sort of nexus of this, just so emblematic of racism.
And she wore confederate hat and she said the public hanging is coming. This is deeply embarrassing to a lot of people in the South. I happened to come from Louisiana, and I know a lot of people who -- a lot of white people who would be extremely offended. So, it is possible that she turns out those quarter of white voters that he does, excuse me.
KORNACKI: OK. Well, thank you to Laura Bassett, Zerlina Maxwell, and Noah Rothman.
And up next, Barack Obama provides a strong new defense of Nancy Pelosi. Does she have the numbers to be the next speaker?
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KORNACKI: House Democratic leader and would-be speaker, Nancy Pelosi, got a powerful endorsement today from former President Barack Obama.
(BEGIN VIDEO CLIP)
BARACK OBAMA, FORMER PRESIDENT: I think Nancy Pelosi, when the story is written, will go down as one of the most effective legislative leaders this country has ever seen. Her stamina, her ability to see around corners, her ability to stand her ground and do hard things, and to suffer popularity to get the right thing done I think stands up against any person that I`ve observed or worked directly with in Washington during my lifetime.
(END VIDEO CLIP)
KORNACKI: Comments from the former president come just a day after 16 Democrats signed a letter opposing Pelosi`s bid to become the House speaker.
Late today, Ohio Democrat Marcia Fudge, who was the only person to be openly flirting with the idea of running against Pelosi for the speaker`s job, announced that she was dropping that idea after Pelosi promised to name her chairwoman of a newly restored subcommittee on elections.
When we return, let me finish tonight with history repeating itself.
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KORNACKI: Let me finish tonight with history repeating itself.
Donald Trump is now the third president out of the last four to suffer the same dismal fate in his first midterm election, to come to office with his party enjoying a sizable majority in the House and then to watch that majority vanish in the midterm. It happened to Bill Clinton back in 1994. That`s when the Newt Gingrich-led Republican revolution ended 40 years of Democratic rule in the House. And it happened to Barack Obama in 2010 when the Tea Party rebellion turned over 63 House seats and made John Boehner speaker. And now, it`s happening to Donald Trump and the Republicans.
The question is whether history is also going to repeat itself when it comes to what happens next. Because both Bill Clinton and Barack Obama recovered from their midterm droppings, and went ton of win reelection two years later. They were assisted by two invaluable political assets, both Clinton and Obama benefitted from an economy that improved between the midterm and their reelection races two years later, and they also benefitted from who their opponents were.
In 1996, Bill Clinton`s opponent was Bob Dole, but he really got to run against Newt Gingrich, whose polarizing style as House speaker had alienated wide swaths of the country. Practically, every Clinton ad that mentioned Dole in `96 attached Gingrich`s name to his as well. It was one word, Dole/Gingrich, Dole/Gingrich. That`s what all the ad said. Clinton ended up beating Dole by eight points back in `96. It wasn`t even close.
Obama, for his part, got to run against Mitt Romney whose venture capital background gave the Obama team an opening to paint him as hostile to the working class. Remember how Romney played right into that with a comment he made about 47 percent of Americans who he said were dependent on government. Obama ended up winning with 51 percent of the vote to Romney`s, you got it, 47 percent.
So, will Trump catch the same breaks that Clinton and Obama got? Well, right now, not even Carnac the Magnificent could say who the Democrats are going to nominate in 2020, whether they opt for a low key candidate who runs with the process to restore normalcy, or whether they opt for someone promising to fight Trump fire with more fire, and how Democrats use their new power in the House, how aggressively they use it to go after Trump -- well, that will depend on who emerges as the new House speaker. And that`s something that is still not entirely clear.
We also don`t know how the economy is going to be two years from now. Have Trump and the GOP with their tax cuts and regulatory moves squeezed everything they can out of it? Or can that joyride keep up for two more years?
What we do know is that Trump doesn`t have much of a margin for error. Seventy-seven votes across three states was all it took to make him president in 2016. That may be all it takes to deny him reelection.
Still, if the Democratic celebration has been a little subdued after these midterms, there`s a good reason for it. You don`t have to look far in the rearview mirror to find presidents who have recovered from worse.
That is HARDBALL for now.
"ALL IN WITH CHRIS HAYES" starts right now.
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