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The Beat with Ari Melber, Transcript 8/2/17 Trump Advisor: "None of us are ever really gone"(

Guests: Vanita Gupta, Ilya Shapiro, Jerry Nadler, Taylor Davis, Jamil Smith

Show: THE BEAT WITH ARI MELBER Date: August 2, 2017 Guest: Vanita Gupta, Ilya Shapiro, Jerry Nadler, Taylor Davis, Jamil Smith

CHUCK TODD, MSNBC HOST, "MTP DAILY": That`s all we have for tonight, but the beat goes on because THE BEAT with Ari Melber starts right now. Mr. Melber, how are you doing, brother?

ARI MELBER, MSNBC HOST, THE BEAT: I`m good, Mr. Todd. And, Chuck, I`m old enough to remember 1999, 2000 back when McCain was then more popular among the Democrats, right?

TODD: Everything old is new again.

MELBER: Thank you, Chuck.

TODD: You got it, brother.

MELBER: The story we brought you exclusively last night, allegations "Fox News" pushed a false murder report to undercut the Russian inquiry is heading towards the White House tonight.

Did President Trump personally push that false "Fox News" story? The White House again beating back allegations from an investigator who worked with Fox News on a now retracted story that a murdered DNC staffer might have fed emails to WikiLeaks?

A discredited conspiracy theory that Fox News pushed hard before backing down, in this case, includes a private investigator who says "Fox" slandered him by misquoting him in the story.

A wealthy Trump supporter rebutting the allegations who previously said he texted the president about it and the president`s people and Sean Spicer, who met with both men.

Now, let me be clear. There is a lot we still don`t know about this unfolding case, but it is raising tough questions. Like, why "Fox" rested their conspiracy theory on a source they now say is incredible and whether a president who calls the truth "fake news" was actually getting into the fake news business himself.

This lawsuit argues the answers to those questions can actually be found in the texts, emails and calendar entries they have, specifically calendar entries that overlap with the president`s activities in the run up to the "Fox" story.

That was rocky period, including May 15, when Trump revealed classified info to Russian officials at the Oval Office; May 16 when the news broke that Trump pushed James Comey to try to go easy on Mike Flynn; and then May 17, the day that marks the before-and-after for the Trump presidency, that appointment of special counsel Robert Mueller.

A president under siege, "The New York Times" was reporting on that day on the chaos and confusion roiling the Trump White House, saying the president`s mood was sour and dark that he`s turned against most of his aides, even his son-in-law Jared Kushner, describing them in a fury as incompetent.

That was the backdrop for the "Fox News" report at the time on the unsolved murder of a DNC staffer, Seth Rich, beginning to make headlines. And investigator Rod Wheeler, his new lawsuit against "Fox" says that he was misquoted in those headlines, in those articles to push a fake news story.

Here`s what he told me.


MELBER: Why do you think, as you allege, they made up quotes from you?

ROD WHEELER, PRIVATE INVESTIGATOR: Well, I think - well, I know for a fact that Ed Butowsky, who was the individual that was funding my investigation, he had been in contact with people from the White House and he was the one that was pushing this Russian hacking narrative, by the way, that I didn`t know a whole lot about because I wasn`t trying to debunk a narrative or support a narrative. I was trying to find a murderer. I do know that.

And Ed even admitted himself.


MELBER: He may not have known a lot about that and a lot of people don`t know a lot about Ed Butowsky, but this is all coming to a head tonight for the Trump White House.

Now, we`ve obtained a voice mailer from Wheeler - this is a May 14 voicemail, a message was left by that man, Ed Butowsky.

Now, this is just - to put in context - a day-and-a-half before that story first appeared on "Fox News". Here`s a portion of the audio.


ED BUTOWSKY, FOX BUSINESS NETWORK COMMENTATOR: Hey, Rod. It`s Ed. So, a couple of minutes ago, I got a note that we have the full attention of the White House on this. And, tomorrow, let`s close this deal, whatever we`ve got to do, but you can feel free to say that the White House is on to this now.


Joining me now, Christina Greer, professor of political science at Fordham University; White House correspondent for "The Daily Beast", who previously worked at the Heritage Foundation; and Jonathan Capehart, an opinion writer for "The Washington Post" and an MSNBC contributor.

Jonathan, if the president or his staff were involved in this, as Mr. Butowsky asserted at the time in that voicemail, what does that mean and where does this story go from here?

JONATHAN CAPEHART, OPINION WRITER, "THE WASHINGTON POST" AND MSNBC CONTRIBUTOR: Wow! It means that the administration from the president on down that complains constantly about fake news was actually involved in perpetuating and proliferating actual fake news.

This lawsuit is incredibly damaging that. Even the allegations, the audio that you just played, the implications that come from this, this comes at a time when the Trump administration, when the president himself, the credibility of the institution is now at stake.

There are people in the briefing room, people around the country who are now looking and wondering what is it that comes from the White House that can be believed.

And the fact that there is a lawsuit alleging that the president was personally in on this, briefed on these things, and wanted this false story out as part of a larger effort to distract from the Russia collusion story is something that should concern this White House.

MELBER: Yes. And this man, Mr. Butowsky there, we heard the voicemail, we also now know publicly confirm that he did meet with Sean Spicer. So, it`s not just any random guy`s voicemail.

Now, here was Sean Spicer when asked about that around that time.


UNIDENTIFIED FEMALE: Can we get a White House reaction or the president`s reaction to the report that Seth Rich was emailing WikiLeaks before his murder.

SEAN SPICER, THEN WHITE HOUSE PRESS SECRETARY: I don`t - I`m not aware of - generally, I don`t get updates on DNC - former DNC staffers. I`m not aware of that. I don`t even know the status of it in terms of DC. But it would be highly inappropriate to do that.


MELBER: Christina, that`s what we call a generalized denial because he didn`t say I don`t generally get updates.

The most interesting part is him acknowledging that kind of thing would actually be inappropriate.

CHRISTINA GREER, PROFESSOR OF POLITICAL SCIENCE, FORDHAM UNIVERSITY: Well, I think in this particular administration, with this particular president, we know that they traffic in lies, in chaos and collusion.

And so, this - if it is any other president, this would be a story that would last a week, a month, it would be on every single front page.

However, with this president, we have Jared testifying in front of Senate committees, we have the president making outlandish comments to middle school boys at a jamboree, we have him going to Long Island making outlandish comments, such as saying that the police should collude and harm suspects.

So, every day, there`s something else thrown at the American public. And so, in many ways, this administration is like a Three-Card Monte. We don`t know where to look.

And this is a story that we must actually stay on because in political science we talk about the media being the fourth wing of the government, right? There is the executive, legislative, judicial branches and the media is the fourth branch.

The media is not actually listed in the Constitution as the fourth branch. The president is listed as one of the three branches of government, and so we have to hold him accountable.

And it`s the media`s job to make sure that they`re not trafficking in fake news. But this president certainly does not understand or respect the boundaries of his job. And we know that he likes to meddle. He likes to meddle with this son, father of five, right? He likes to meddle with others who are trying to do their jobs because he fundamentally doesn`t get the gravitas of the office.

And so, when you have something like this, where he`s just like, well, I mean, you know - he`s talking to different people, he`s making sure a story gets out there because he loves Fox.

He was just having dinner with executives from Fox and media personnel from Fox. So, he wants them to be his extra wing because he feels like people aren`t sort of sticking up for him the way they should.

But this is something that actually could get him in a lot of trouble. The problem is, tomorrow, we know that it would probably be some other story that`s just as egregious, just as chaotic. That`s not good (ph) for American democracy.

MELBER: Well, lucky for you and people who care about this story, it`s not tomorrow, it`s tonight.

Lachlan, is this a fake news chickens coming home to roost at the Trump White House or do you view this and do conservatives at this point view this as somehow overblown?

LACHLAN MARKAY, ?WHITE HOUSE REPORTER, "THE DAILY BEAST": Well, obviously, these allegations right now are just that. They are allegations.

But I thought it was very interesting during yesterday`s White House press briefing, at the very end, when Sarah Sanders was asked about the merits, does the president believe the predicate of this initial "Fox News" story that Seth Rich was somehow involved in the hacking of the DNC, and she said I`m not sure and then immediately ended the press briefing.

And I don`t think that`s a tenable position for the White House to sort of leave that out in the open like that. I think, with this lawsuit, they`re now going to be forced to weigh in sort of more on the merits of the story and what does the president actually here. Does he sort of buy into this conspiracy theory?

MELBER: Well, and I appreciate your word choice because we all choose our words carefully. Predicate is a very fancy word for a discredited, scurrilous and frankly disgusting allegation built on the unsolved murder of a young man, who by no public evidence had anything to do with the felonious hacking in the Russia case.

MARKAY: Yes. The attorney for Mr. Wheeler is now saying he might even be looking to depose the president at some point as part of this lawsuit. So, we`re looking at potentially explosive developments with respect to the White House going forward and I expect this to continue coming up.

And I agree with Christina that reporters need to continue pressing this because this sort of I-don`t-know-what-the-president-thinks that is thrown out in response to so many questions in that briefing room, I don`t think is going to cut it here.

MELBER: Right. I mean, it`s very significant for all those reasons. Jonathan Capehart, I want to play Mr. Butowsky`s response. I want to mention, as I did last night, we invited him as well as White House officials on this program.

White House is not responding (INAUDIBLE) when Mr. Butowsky was in touch with our staff, but at this juncture isn`t doing TV interview tonight. We respect that.

But here is how he tried to recharacterize what are pretty blanket statements that he had White House contact. Take a listen.


BUTOWSKY: I was never talking about the White House. By the way, I`ve never talked to President Trump in my life. And President Trump nor the White House has anything to do with any of this.

This was a tongue-in-cheek talking, just texting, wasn`t serious because Rod Wheeler was always looking for a job because he has no money.


MELBER: Jonathan Capehart, what do you think of that defense? You covered a lot of stories where political explanations shift?

He`s saying the texting, the emailing, the voicemail which we played at the top of THE BEAT here tonight were all jokes.

I don`t know, the voicemail didn`t have a lot of jokey format to me. It`s his voice.

JONATHAN CAPEHART, OPINION WRITER, "THE WASHINGTON POST" AND MSNBC CONTRIBUTOR: You mean to tell me that on a story this big - let`s just say that this big story was actually true. A story where you`re in contact with the White House, where the president is saying we`ve got to get this story out immediately, where you`ve gone in to meet with the White House Press Secretary Sean Spicer to talk about this story, and now that it`s been blown up and shown to be false that suddenly all of these things are joke?

It doesn`t pass the laugh test. It doesn`t pass the smell test. And I think because of that - because Spicer was - when he first asked about it denied it, and then to NPR, when the story broke, actually said yes, in fact, I did meet with them.

That says at least to my reporter nose and ears that there is smoke there and there`s crackling there. And because the president`s name has been invoked in this horrible case, reporters, I think, are duty-bound to run this story down as far as they can to find out what actually happened, how is it possible that someone pedaling in a conspiracy theory and pushing out fake stories was actually able to have a meeting with the White House Press Secretary to help push the story along.

There are big troubling questions here for our country, to be quite frank.

MELBER: Christina, final thoughts?

GREER: So, we know a few things. One, Trump`s base loves conspiracy theories. Two, we know that Trump has no bottom and he is willing to throw a murdered innocent man under the bus to protect himself.

And I think if we remember those two things, hopefully, the media will stand the story and Congress will do their jobs and actually Republican members of Congress to really push to make sure that there`s a committee to really investigate this much more heavily.

MELBER: All important points. And I reiterate the White House has issued some blanket denials, but the invitation is open if they want to come and really submit to questioning.

That`s what Mr. Wheeler was willing to do last night and the invite is open. Christina, Lachlan and Jonathan, appreciate your time and reporting on this.

No, coming up, other fireworks at the White House briefing today. A controversial aide, back in the spotlight on immigration.

And will the Trump Justice Department really use these civil rights division to launch a new attack on Affirmative Action. We have a debate tonight including the DoJ prosecutor who led that division under Barack Obama and a conservative perspective.

Later, a special breakdown on Trump`s evolving legal defense on the Russian inquiry, what he was saying then and what he`s saying now. You won`t see this anywhere else.

I`m Ari Melber and you`re watching THE BEAT on MSNBC.


MELBER: Donald Trump`s aides, they come, they go and then they come back. Controversial advisor Stephen Miller had been in a media block out for months since his widely panned round of interviews in February about the travel ban.

But today, after six months, he came roaring back in the briefing room.


STEPHEN MILLER, SENIOR POLICY ADVISOR TO THE PRESIDENT OF THE UNITED STATES: Maybe we`ll make a carve-out in the bill that says "The New York Times" can hire all the low-skilled, less pay workers they want from other countries and see how you feel then about low-wage substitution.

JIM ACOSTA, WHITE HOUSE REPORTER, "THE NEW YORK TIMES": Of course, there are people who come -

MILLER: But that`s not what you said. And it shows your cosmopolitan bias. And I just want to say -

ACOSTA: This seems like that you`re trying to engineer the racial and ethnic flow of people into this country.

MILLER: That is one of the most outrageous, insulting, ignorant and foolish things you`ve ever said. And for you, that`s still a really - the notion that you think that this is a racist bill is so wrong and so insulting.


MELBER: Miller kept repeating that phrase cosmopolitan bias, which sounds like a cross between elite prejudice and some kind of cranberry cocktail at a DC happy hour.

But Miller`s return from Trump probation does follow a pattern. Once you`re in Trump world, you may get benched to tack your set (ph), but the rule is he who fights and runs away may live to fight another day.

New reporting that even Anthony Scaramucci could fit the bill. "The Huffington Post" Vicky Ward notes he might find a second act working for Trump. Longtime Trump advisor Roger Stone telling her, none of us are ever really gone. He still has the president`s cell phone, the president`s private number. Just because he`s not in the White House, no one should think his influence has gone.

Turns out the same story for Corey Lewandowski, who Trump fired as campaign manager and had escorted out of Trump Tower by security. "The New York Times" reporting that the former Trump campaign manager has now started a new consulting business that puts him "at the center of the ethical quandary surrounding the Trump White House."

Indeed, he has the president helping him give him access and power to friends and loyalists who aren`t on the government payroll, but work as lobbyists. That, from Nick Confessore.

Now, Donald Trump certainly ends political lies, but political death is clearly not always the end of the road when there are zombie lobbyists and zombie advisors roaming the town.

Joining us now, the perfect panel. Nick Confessore, "The Times" reporter who broke that story as well as our friend Vicky Ward from "The Huffington Post" who broke the other story.

Heads or tails, that can go either way. But Vicky, you look at this situation. Scaramucci, does he have a credible reason to think he can return?

VICKY WARD, EDITOR AT LARGE, "THE HUFFINGTON POST": Oh, absolutely. I talked to him this morning. He`s fielding calls from various people in the cabinet.

MELBER: Current cabinet secretaries are talking to Anthony Scaramucci today?

WARD: Absolutely. He certainly - he might disappear as he said - as I wrote in the piece, he`s going to go dark for a bit, but he will completely come back.

And I think that - one of the things I`ve discovered in my reporting and talking with Anthony is that the president actually quite likes it when people who`ve worked for him sort of blow themselves up and then sort of work - have to work their way back.

MELBER: What does he like about -?

WARD: Well, it`s a sort of - it`s an extra demonstration of loyalty, isn`t it?

MELBER: Is it?

WARD: Even sort of after kamikaze, they are still there.

MELBER: I know this is a - I don`t want to put you on the spot. I know it`s a great British turn on phrase when we say, it`s loyalty, isn`t it? But I would ask you back, is it?

WARD: Well, I think - take Anthony, for example. He could wander off. I mean, he`s made a lot of money, unlike a lot of the other Trump people who are very reliant on Donald Trump for their livelihood.

Anthony Scaramucci could walk away and go back into the Wall Street world. But I think the fact that they sort of left on these good terms and Scaramucci has sort of said, he`d still like to work with the president when he invites him. That means a lot to Donald Trump.

NICHOLAS CONFESSORE, POLITICAL AND INVESTIGATIVE REPORTER, "THE NEW YORK TIMES": Look, there`s also a second reason here. The pool of people who want to work for President Trump is not growing. It is staying the same or it is shrinking. This is a real problem the president has.

He can`t hire people from the traditional establishment in Washington who have traditional experience because those people were against him in the campaign or don`t want to work for a president who is under investigation for the Russia stuff.

So, he has to rely on the same people over and over again. So, (INAUDIBLE) and stays swirling around forever, if they are loyal, which is the key thing.

MELBER: Yes. Well, you raise a big point, which is oftentimes, you start a new job, sometimes you get a new email address, you get a new phone, if you start at a senior level in the Trump White House, you also have to get a new lawyer, like right on the way in and you haven`t done anything yet.

But, Nick, you also dug into the fact that it seems that if the concern is the swamp and pay for play, they are adding zombie alligators to the swamp, not subtracting.

CONFESSORE: That`s true. Although I would say that the Trump idea of the swamp is different from the journalistic idea of the swamp, and in fairness to them.

So, their idea of the swamp is some combination of the media and the permanent DC establishment and the bureaucracy first and foremost. So, their idea of the swamp is bureaucrats. It`s not the interaction of money and influence in Washington.

There is almost no evidence that they intend to get rid of that version of the swamp.

MELBER: I think you`re right that they talk that way now, but that has evolved. I was at Trump campaign rallies where he talked explicitly about bankers, about Goldman money going to Hillary Clinton, which was a compelling critique we know because it`s one that Bernie and Donald Trump made.

The problem is that now that finance money and some of that lobby money is going to Corey Lewandowski as you report.

As for Scaramucci, I want to read the entire quote, if that`s all right with you.

WARD: Of course.

MELBER: He says to you, I`m now going to go dark. Then I will reemerge as me. Was it going to - maybe he`d come back as somebody else (INAUDIBLE).

WARD: No. I think Anthony Scaramucci sees himself - and he probably wouldn`t like me for saying this as mini me to Donald Trump.

One of the things he admires about Donald Trump is the sort of Teflon - Trump`s invincibility that nothing can -

MELBER: Perseverance.

WARD: Not perseverance. Nothing can sink him.

MELBER: Tenacity.

WARD: Tenacity, thank you. And Scaramucci has that. There`s nothing -

CONFESSORE: And so has Corey Lewandowski. He`s a guy who stuck it out. Look, he had a first lobbying firm. He basically blew it up because he had associations with foreign clients, which he didn`t want.

So, he started a new lobbying firm or a pseudo-lobbying firm and has some of the same clients as the old firm. He is not giving up. He`s staying in the mix.

MELBER: Final thought. Since you both have such good sources here, what do you want your sources to know as they`re watching TV, as so many people in Trump world do. Why did Anthony call you?

WARD: I`ve been talking to - I`ve known Anthony for quite a long time, many years. And I think he had a few things that needed clarification. I think most people wanted to know why someone wouldn`t be there for the birth of their child and why they would have that profanity-laden conversation with Ryan Lizza of the "New Yorker."

I think he was actually right to maybe try and put -

MELBER: Add to it. Not let the now infamous New Yorker interview be his sort of last interview.

Well, thank you both. Appreciate it. Interesting stuff.

Ahead, we take a turn. Can the Trump administration sue colleges over Affirmative Action policies, by arguing the policies hurt white and Asian applicants?

And after the break, we will have the Department of Justice civil rights division under President Obama here to explain.

Plus later, constitutional crisis. What does that even mean? And are we approaching one?


MELBER: There are always two sets of stories about the Trump administration. The story of the Trump White House, a dramatic swirl of intrigue, leaks, tweets and a shifting cast of characters who spend as much time talking about each other as they do about the people`s business.

And then, there is the rest of the Trump administration, where many career Republicans are quietly governing and enacting policy.

That White House story is dramatic, but the story at the agencies often has more impact on Americans` lives. And that is where drastic policy change is underway. And there were no big tweets about this. No one called the "New Yorker" magazine to swear about it.

Instead political appointees are recruiting staff to potentially sue universities over Affirmative Action to benefit white or Asian applicants instead of minorities.

The DOJ says it will neither confirm or deny any ongoing investigation on this issue. Now, we should tell you the Supreme Court has already weighed in repeatedly upholding at least narrow Affirmative Action programs as lawful.

So, it`s not clear how far the Trump DOJ plan, but it could be used to develop new cases that narrow those policies even further.

Let`s get right to it with Vanita Gupta, former head of the civil rights division at the Justice Department and Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute.

Vanita, when you look at this report, what does it say to you about the Trump administration`s approach to Affirmative Action and diversity programs?

VANITA GUPTA, FORMER HEAD OF THE CIVIL RIGHTS DIVISION AT THE US DEPARTMENT OF JUSTICE: Well, I think it was a tele sign that they were asking for employees to come join the political front office of the civil rights division to engage in this work.

There already are a number of career lawyers at the civil rights division who day in and day out are enforcing our anti-discrimination laws to ensure that there is equal opportunity for all students in this country.

And I think it was just an odd move to move that position into a political front office that really suggested that there is a different underlying agenda here aimed at kind of parsing out discrimination against white students in particular.

MELBER: Ilya, the Supreme Court has decided this multiple times. Is this really a good place for conservative energy?

ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE: I don`t know about conservative energy, but if we care about civil rights, if we care about treating people based on the content of their character rather than the color of their skin then absolutely, the Justice Department, I`m heartened, is going to look at whether similarly qualified applicants are being treated differently. And frankly, this going toward the lawsuit against Harvard and allegations made there. It looks like Asian applicants that are similarly qualified are 16 times less likely to get in compared to black applicants, six times more less likely than Hispanic applicants. And I`m not surprised by the way that this is being taken care of by the front office because under the Obama Justice Department and especially under the Vanita`s tenure, the career officials were only hired if they had time spent in radical left organizations that most of which didn`t even recognize that defense is going to be taken -

MELBER: Ilya, Ilya, hold up.

SHAPIRO: - against white applicants.

MELBER: If you want to make those kinds of charges at least on this show, you`re going to have to do more than use the word radical. Do you want to name an organization? And then I`ll let Vanita respond.

SHAPIRO: Well, all of these so called traditional civil rights organizations that are the only kind of diversity they`re interested in is different colored liberals.

MELBER: I`m not hearing an answer to my question.

SHAPIRO: The Lawyers Committee on Civil Rights, Human Rights First, I mean all of the traditional -

MELBER: OK. You`re giving a bit of a tell. You think Human Rights First is radical for advocating human rights?

SHAPIRO: No, the type of - look, this is - we`re getting off track.

MELBER: we`re not getting off track.

SHAPIRO: No, no.

MELBER: You come on TV and you call people radical left because they support now your words, human rights.

SHAPIRO: No, because - I`m calling them radical because they would not - countenance claims that someone - that a white person can be - or Asian person can be discriminated against in the context of educational admissions. What`s - we just don`t know what`s going on at Harvard and these other places. And I hope that the Justice Department will investigate.

MELBER: OK. It`s your words --- your words was radical, your words was just human rights first. I want to get that on the record, I want to give Vanita a chance to respond. Go ahead.

GUPTA: The organizations that Ilya is claiming to be radical are all organizations that are engaged in enforcing the law and protecting our constitutional rights. If that`s radical then I`m afraid we`re in a different part of the zone in this country that I don`t want to be a part of. These are organizations that about preserving the rule of law and ensuring that the federal civil rights that Congress enacted over for the Justice Department to enforce over many decades are enforced thoroughly and appropriately. Look, if there`s real intentional race discrimination in these programs, that is exactly what the career employees of the civil rights division do day in and day out. That is what they - that is what they root out. And so, to call this work radical in any way, I think really does a disservice to the very real work of civil rights enforcement that these organization (INAUDIBLE) civil rights division does every day.

SHAPIRO: Except they`re not interested, Ari, in pursuing cases or investigating even when, for example, Asians are the largest growing segment in the American populous and yet their numbers at your Harvard`s, at your elite universities don`t change. They`re not interested in pursuing cases whether it`s in the voting rights division, whether it`s in education where there`s allegations of racial preferences being used in ways that aren`t countenanced by the Supreme Court. And we just don`t know this kind of holistic investigation or use of race is a black box. And hopefully, the Justice Department before suing anyone is actually going to investigate and get the statistics and get data from these universities.

MELBER: Sure. So two things, wait just two things. Vanita, I want you to speak to that point because Ilya is arguing essentially that these programs even when well intentions can basically become a sort of quota or act as he`s saying a kind of discriminatory cap on certain student bodies. In this case, he`s proposing Asian students. That`s number one I`d like you to respond. Two, though, for both you, I do want to play then candidate Donald Trump who said he was fine with affirmative action. So again, we`re seeing sometimes in the agencies something different than what he ran on. Let`s take a listen to that.



UNIDENTIFIED MALE: Should it be expanded or should it be limited?

TRUMP: Well, it should be - you know, you have to also go free market, you have to go capability, you have to do a lot of things but I`m fine with affirmative action. We lived with it for a long time. And I lived with it for a long time. And I`ve had great relationships with lots of people so I`m fine with it.


MELBER: So, Vinita, speak to the point and I`d love your response Ilya, on the quote there.

GUPTA: Well, first of all, Ilya`s (INAUDIBLE) made a lot of allegations. I don`t know what his evidence is whatsoever that the division was in countenance saying discrimination against any and all groups. And so, let me just put that to one side. But the reality is that these universities have been struggling with the reality of needing to engage and produce diverse student bodies that are going to be able to perform in the global economy and that is something that they take very seriously. You can`t - this isn`t about quotas.

The University of Texas case that went up to the Supreme Court and where the decision came down in June of 2016, so a very recently considered case was about whether the University of Texas could consider race as one of many factors in creating a diverse student body. And among factors whether the person has an athletic ability, whether they are a violinist, whether they are a legacy student for instance. So, this is a very complicated mix for admissions officers who aren`t just looking at race at all. That would be unconstitutional. They are looking at a number of different factors about what brings the student into diversity.

MELBER: Understood.

GUPTA: If we acted on pure numbers, that would be an easy thing to say well, this person didn`t get in because they didn`t make the test.

MELBER: And because we`re running out of time, Ilya, your view of if Donald Trump was going to do this, shouldn`t have he - shouldn`t he have said so when he was running?

SHAPIRO: Look, I`m against racial preference. I`m not against affirmative action. And the - by the way, the office of Professional Responsibility at the Justice Department, it was the - is the agency that found discrimination claims against whites and others none politically -

GUPTA: Not during my time.

MELBER: Vanita Gupta and Ilya Shapiro, this important issue, it may be back in the headlines with these cases continue and we`ll have you both back on if you join us. Appreciate your time.

GUPTA: Great. Thank you.

SHAPIRO: My pleasure.

MELBER: We heard lots of talk about the Russia inquiry and how it could lead to a constitutional crisis. What does that really mean and how do you avoid it? I have Congressman Jerry Nadler here straight ahead.


MELBER: Two words we keep hearing, constitutional crisis but not everyone agrees on the definition.


UNIDENTIFIED MALE: We were heading toward all along and that`s a constitutional crisis.

SEN. AL FRANKEN (D), MINNESOTA: You know, recess appointment of Attorney General who can then fire Mueller, that`s a constitutional crisis.

SEN. CHUCK SCHUMER (D), NEW YORK: I can`t imagine they could be complicit in creating a constitutional crisis.

SEN. RON WYDEN (D) OREGON: My own view is if the President fires Bob Mueller without cause that is going to trigger a constitutional crisis.

UNIDENTIFIED MALE: These two actions alone bring us closer to a constitutional crisis.

UNIDENTIFIED MALE: He puts us in a constitutional crisis perhaps worse than October 20th, 1973 when President Nixon fired the Special Prosecutor who was investigating him.

MICHAEL BESCHLOSS, AMERICAN HISTORIAN: We are on our way if that happens to see a constitutional crisis that will make Watergate look like a minor event by comparison.


MELBER: So what is a constitutional crisis? It`s when the governing system faces a fundamental test. One scholar explained it happens when the Constitution cannot and does not solve the crisis facing the country. That is when there may be no tool in the Constitution to resolve the problem between the branches of government. Take Watergate, with the President follow the rule of law when it was against his personal interest, Nixon broke some rules but ultimately followed the Supreme Court order to turn over incriminating tapes. Another example is when the government disagreements turned to violence like the nullification crisis. President Jackson threatening to use the military against the state if it succeeded. Those are historical examples, but what about today? Joining me now is Congressman Jerry Nadler of New York, Attorney and Chairman or Ranking Member of the Constitution Sub-Committee for 13 years. What does this term mean and what does it mean potentially applied in the Trump era?

REP. JERRY NADLER (D), NEW YORK: Well, a constitutional crisis is really when the constitutional scheme isn`t working. When there`s a basic problem with the President, for instance, disobeys a court order and says what are you going to do about it? That would be a constitutional crisis. Because, what do you do about it, do you order the military, does he control the military? What do you do? We almost had a constitutional crisis when the President fired Comey.

He - and he said the reason for firing him, there was some - there was some dishonesty about it but ultimately he told the Russians and he told NBC News, the reason he fired Comey was to stop the investigation. That was resolved by the appointment of Mueller as a Special Counsel. He`s investigating it. If he were to be fired, that would be a constitutional crisis because then you have a situation where the President who might or might not be guilty of crimes and - of crimes against constitutional order would have stopped the investigation of his own possible crime.

MELBER: So, is that, in your view, what makes it different than say, bad policy or irresponsible decisions? I mean, you followed presidents in both parties frankly about things. You`re saying that the nature of the Mueller investigation makes it a crisis because cutting it off means what?

NADLER: The fact that the President is suspected. His campaign is suspected of having colluded with a foreign power in trying to in effect rig an American election. Now that is (INAUDIBLE) if it - if it is true. We don`t know whether it`s true. It`s being investigated properly. If that investigation is stopped by the subject of the investigation then you have a constitutional crisis. And how you solve it is a big question.

MELBER: From your dealings with the administration, do you think there are officials in the White House who understand that?

NADLER: I think there are officials who understand it would be a real problem at that point. Then the question would be, what do you do about it? Now, the ultimate solution of a constitutional crisis is impeachment.

MELBER: Right.

NADLER: But that means, you have to have a majority in the House and two- thirds of the Senate and that means - and it`s got to be bipartisan just by the arithmetic.

MELBER: Right, exactly.

NADLER: So it can`t be one party trying to be -

MELBER: It can`t be partisan.

NADLER: It can`t be - although the impeachment of Clinton was partisan. It was the Republicans not - with no Democratic support and of course, it failed in the Senate because -

MELBER: Right. You didn`t get any kind of conviction.

NADLER: Right.

MELBER: Congressman Jerry Nadler, thank you very much for joining us.

NADLER: You`re quite welcome.

MELBER: Coming up, it is the people`s house but the current resident calls it a dump. And later, my special breakdown to the ever changing legal defense in the Russia inquiry.


BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES OF AMERICA: The White House is the people`s house and Michelle and I always joke, we`re just renters here and the owners are the American people and all those who have invested in creating this amazing place.

MELBER: That is one way to put it. President Trump, for his part though, just lit into his own public housing telling some golfers he stays at his own properties because that White House is real dump. The attack joining widespread combination especially since the White House is not Donald Trump`s house to insult. It is the people`s house funded by taxpayers. He is a temporary tenant. And it`s certainly a change of tone to when he first moved in and called the White House a beautiful residence, very elegant.

Now, putting aside the language, Donald Trump also, more importantly, has a personal conflict when promoting his own hotels over the White House. He has spent now 58 days at his properties continuing to profit off of them. He even doubled the initiation fee at Mar-A-Lago to $200,000 after the election. With me now for a special discussion is Taylor Davis, a former Obama and Bernie Sanders supporter who now voted for and backs Donald Trump and Jamil Smith, a Contributing Writer for the Daily Beast. Welcome to you both.


TAYLOR DAVIS, TRUMP SUPPORTER: Hi, Ari. Thanks for having me on.

MELBER: Absolutely. Taylor, I want to start with you because you came to our attention as one of those people out there that a lot of folks are curious about having backed Obama, you like Bernie Sanders recently but you`re with Trump. Starting with this sort of kerfuffle, how do you feel when the President talks this way about the White House?

DAVIS: I think it really comes down do a matter of personal taste. I`m a little more concerned that we`re making national headline over off handed comment in a golfing magazine.

MELBER: Yes. Jamil, what do you think? I mean, there is a certain standard that comes up where other presidents, Barack Obama is one but more than Barack Obama have been held to a standard about a comment like this and a lot of folks seem to want to look the other way with President Trump. What do - what do you think?

SMITH: Yes. I mean, I think, when you look at the conservative media, they he would have a field day if Obama had said this. So, I think it`s relevant in that respect number one, but also it tells you a lot about the man himself. What kind of person takes a job with that kind of importance, with that kind of power and just disregards it to the point where he just calls it a dump. I mean, there`s lots of hard working people there, cooks, janitors, landscape folks who are working their tails off for probably not nearly as much as Donald Trump is earning and you know, they make that place beautiful. So I think he probably owes them an apology.

MELBER: Taylor, when you look at the - beyond this story, you look at the President`s first six months, what grade would you give him and how do you compare him to Obama who you did previously support?

DAVIS: I mean, it`s very different, I`ll give you that. But I support my President now. I mean, I`ll never agree 100 percent with policy with anybody but myself but I would give him an A.

MELBER: An A. And what do you think is the best thing he`s maybe achieved or done in the first six months?

DAVIS: I think his infrastructure plan is very generous and I think it`s a great thing for an economy, a reboot if you will.

MELBER: What do you think about the fact that - I mean, you mentioned infrastructure, they are proposals but he hasn`t passed really any major domestic spending or legislative program.

DAVIS: Yes, but according to the Hill, it doesn`t seem like it will get much resistance. He got $1.6 billion put in already for the wall. So, I mean, the rest is, I mean, even more, generous but I think he`ll get it through.

MELBER: Jamil, what do you think? And what do you say to people like Taylor and others who think that Donald Trump deserves more than a six months chance at this juncture?

SMITH: I`d love to know what infrastructure plan she`s talking about. Frankly, there hasn`t been any infrastructure plan. There`s been - a wall is an infrastructure plan. I`d like to - you know, have him talk to all the folks in places like Cleveland and Minneapolis and Detroit whose bridges and roads are falling apart. I think that he could have actually scored a big win had he concentrated on the infrastructure to start. But instead, he chose to use his political capital to wage the health care fight, which as we can see, he can`t get that done either. So I`m curious to know what exactly he`s done so well that has Taylor so happy about his job performance.

MELBER: Taylor Davis - go ahead real quick.

DAVIS: Yes, you might not have heard but his plan is very generous. Probably more generous than Bernie`s infrastructure plan was. And he is allowing, he has proposed $100 billion to states to foresee how they want to see it done. So that`s the roads in Cleveland and that`s for Cleveland to decide.

MELBER: As we say in the business, to be continued. Taylor Davis, Jamil Smith, I appreciate you both coming on. And coming up, the Russia defense, I`ll explain that`s next.


MELBER: There was one thing many in Washington miss this week about that report President Trump dictated Don Junior`s misleading defense of the Russia meeting and has legal ramifications for the inquiry. So tonight, let`s break down the state of team Trump`s Russia defense because it keeps changing. Now there are two major defenses to criminal conduct, one, denial. You didn`t do it. Or two, justification. You did it but it`s OK. The Trump Campaign began with 100 percent denial.


UNIDENTIFIED MALE: Are there any ties between Mr. Trump, you or your campaign, and Putin and his regime?

PAUL MANAFORT, PRESIDENT TRUMP`S CAMPAIGN MANAGER: No there are not. It`s absurd and there`s no basis to it.

UNIDENTIFIED MALE: Did you ever meet with any other person from Russia that you know?

DONALD TRUMP JR., PRESIDENT TRUMP`S SON: I don`t even know. I`ve probably met with other people from Russia, certainly not in the context of actual - a formalized meeting.

TRUMP: The entire thing has been a witch hunt and there`s no collusion between certainly myself and my campaign.

Russia is a ruse. I have nothing to do with Russia. I haven`t made phone call to Russia in years. I don`t speak to people from Russia.

I have nothing to do with Russia. To the best of my knowledge, no person that I deal with does.


MELBER: That`s the clearest defense to any kind of crime, the claim that it didn`t happen. But that defense fell apart, collapsing regarding a series of Russia meetings which were exposed for most of Trump`s inner circle and then came the smoking gun, written e-mail evidence Trump`s son and top aides met with Russians promising dirt on Clinton. So the denial went out the window. Trump defenders turn to a justification defense that it`s OK even if they did it. To be clear, that can be a legitimate defense, the idea that some actions would be criminal or justified by special circumstances. A justification defense states that a crime is justified when the conduct is necessary as an emergency measure to avoid, say, imminent injury. Think of driving into the opposing lane to avoid hitting a pedestrian. Now, after the Trump Tower meeting was exposed, Trump defenders said, maybe if they did it, it`s OK.


JAY SEKULOW, PRESIDENT TRUMP`S LAWYER: There`s no illegality that a meeting under the circumstances that were described by the release of the e-mails that Donald Trump Jr. did yesterday, is not a violation of the law.

UNIDENTIFIED MALE: Collusion is not illegal, by the way.

SEAN HANNITY, FOX NEWS HOST: I never understood it anyway. What was the collusion? Was that a crime? To say release it? To show the truth?


MELBER: Not normal. Never in American history of government leaders or their close allies, openly suggested foreign collusion is acceptable and the defense spread with some Republicans suggesting maybe this kind of meetings were OK. But here`s the bad news for team Trump. A justification defense is he much harder than a denial defense. It can work for an emergency like using force and self-defense but it doesn`t usually apply to crimes without an emergency or necessity. So you can punch someone the second before they punch you. But you can`t commit tax fraud for six months and say it was justified because you needed the money to do some good deed.

And legally that bogus tax defense is closer to try to justify election interference, because there`s no emergency to rescue the underlying crime if there was one. Now, President Trump might be learning, as he goes along because the most important thing about his dictation of Don Junior`s defense is that it did not justify anymore. It did not mitigate. They went back to denial. Whenever you think of Trump, he`s known the line between controversy and danger and he told his son, the best defense was to deny the purpose of the meeting and go back to adoptions. Now, think about that and it explains why he brought it up in the New York Times interview.

TRUMP: It was very interesting. We talked about adoption.


TRUMP: Russian adoption. I always found that interesting because you know, he ended that years ago. And I actually talked about Russian adoption with him, which is interesting because that was a part of the conversation that Don had in that meeting.