The Beat with Ari Melber, Transcript 8/4/17 Trump on Vacation and Congress in recess.

Guests: Howard Dean, Joyce Vance, Michael Isikoff, Jill Abramson, Robert Deitz

Show: THE BEAT WITH ARI MELBER Date: August 4, 2017 Guest: Howard Dean, Joyce Vance, Michael Isikoff, Jill Abramson, Robert Deitz

CHUCK TODD, MSNBC HOST That`s all for tonight. We`ll be back Monday with more MTP Daily. And, of course, if it`s Sunday, catch "Meet the Press" on your local NBC station.

THE BEAT with Ari Melber, though, starts right now. Ari --

ARI MELBER, MSNBC HOST: Quick question. Quick question, Chuck. If a politician won`t vote for himself, does that mean he has low self-esteem?

TODD: Or they just want out of the job sooner. I think they didn`t want to extend their term.

MELBER: Right. They didn`t want the extra two years. Amazing story. Have a great weekend, Chuck.

TODD: Thanks, man.

MELBER: As for us, we have a message -- Mr. President, there is now a grand jury in Washington and this is the first day of the rest of your life.

Things are changing in the West Wing today, and not just because of Chief of Staff John Kelly. This newly revealed grand jury in Washington means that every Trump aide and family member can be called to testify under oath any time.

President Trump pushing back, claiming Russia inquiry is a partisan distraction and a total fabrication. And some of Trump`s allies are now openly claiming today that the federal justice system is just fake news.

Now, Trump does have a right to a zealous legal defense and we all have a right to live under the rule of law. That`s not fake news. It`s fact news.

And in the 24 hours since this grand jury story broke, this fall out that we`re seeing suggests two different and important reactions among Republicans. First, some concerned about our republic.

Take Paul Ryan, now defying Trump on the Putin standoff, saying explicitly Russia can improve our relationship if they stop meddling in our elections. Other Republicans noting that the grand jury`s review of potential obstruction is serious.

And in a move that was overshadowed by so much other news, Mitch McConnell left the lights on in the Senate when he departed, using a legislative maneuver that denies Trump the chance to sack Sessions and name a replacement, without the Senate. And there are those new bipartisan bills to reinforce Mueller`s job protection.

So, that is one big reaction to the news. And then there is another road we can report for you tonight. The kind of aggressive deflection strategy that you have seen in cases from O.J. Simpson to all kinds of other lawyers who want to do something pretty inappropriate.

They basically want to --

(BEGIN VIDEO CLIP)

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES: The Russia story is a total fabrication. It`s just an excuse for the greatest loss in the history of American politics. That`s all it is.

SEAN HANNITY, FOX NEWS HOST, HANNITY: Robert Mueller is now carrying out a political witch-hunt. Grand juries -- you`ve got to remember this, they are completely one-sided, heavily favoring government prosecutors. Defense attorneys are not allowed in to talk to the grand jury and prosecutors can put forward any evidence they want.

It`s why they have the old saying, you can get a grand jury to indict a ham sandwich. And Mueller conveniently picked -- handpicked -- Washington DC to impanel a grand jury. It`s a city Donald Trump got 4 percent of the vote. Four percent!

GREGG JARRETT, FOX NEWS ANCHOR AND ATTORNEY: There`s only one other nation in the world other than the US that employs a grand jury. It`s Liberia. And there`s a reason why because everybody now realizes that grand juries are an undemocratic farce.

(END VIDEO CLIP)

MELBER: Let`s be clear about what`s going on here. These are folks who don`t like the evidence and want to put the entire system on trial. That is the O.J. defense strategy.

But the grand jury system is not on trial here today. And if anything in the US feels like Liberia right now, it certainly is not thanks to non- partisan investigators just doing their jobs.

I`m joined now by Howard Dean, former Vermont governor DNC chairman, and Joyce Vance, a former US attorney.

Joyce, your view of this and the effort by some to say the real problem in America is the grand jury system.

JOYCE VANCE, FORMER UNITED STATES ATTORNEY: This is a lot of partisan noise. We`re hearing these complaints from the same people who were calling for a grand jury process to look into Hillary Clinton`s alleged misconduct.

So, I suppose it depends for these folks who is being investigated as to whether they`re believers in the grand jury system. The reality is that this is a system with a lot of integrity. It`s been used in this country since the beginning.

And we know that prosecutors, although they have a lot of room to ramble in the grand jury, DOJ policy actually requires a prosecutor who is aware of exculpatory information, information that`s favorable to a defendant to present that to the grand jury and allow them to consider it.

And certainly, no prosecutor wants to indict a ham sandwich, knowing that they`re going to have to go into a courtroom, in front of a federal judge and what we call a petit jury, a trial jury, and have that jury make a decision about whether the prosecution`s case can be sustained beyond a reasonable doubt or not.

Governor Dean, how do you view these two roads in the response so far from Republicans to the big news?

HOWARD DEAN: Well, it is partisan. And it`s also made up stuff. I mean, Trump has a habit of accusing other people of what he does and what he`s doing is fake news.

The fact is these guys are in a lot of trouble. And the thing that interests me about this sort of claim, this nonsense that they`re all putting out there is they are only appealing to their base of people who would walk off a cliff where, as Trump himself said, would allow Trump to shoot somebody on Fifth Avenue and still support him.

This does nothing for the increasing number of people, now up into the 60s -- actually, 71 percent think Donald Trump is dishonest. This doesn`t help that defense.

You try it in the press. This doesn`t help that defense. And I don`t know why they keep doing this, but that`s what they keep doing.

MELBER: Yes. You mentioned the views out there, plenty is polarized in America, but we`ve got about 64 percent of folks who think Mueller will conduct a fair investigation. So, is this political strategy, governor, to knock that number down?

DEAN: It probably is, but they`ve got the wrong messenger. People who don`t like Trump don`t like him as much as the people who do like Trump like him. And the fact is, it`s about two to one, of people who do not like Trump.

So, no matter what Trump says, he can`t get out of this because most people believe -- like, 71 percent of Americans don`t believe he tells the truth. So, I would not use this strategy if I were Donald Trump, trying to get out of it because nobody is going to believe what he says.

Joyce Vance, I want to kind of talk about the long-term value proposition versus the day-trading that`s so common in the White House. They are good at jamming the news cycle. I think everyone`s gathered that by now.

But the question is whether that is going to be a viable public relations and legal strategy when there is an actual grand jury here impaneled. Take a listen to Jay Sekulow talking about this and basically talking about how long it will take.

(BEGIN VIDEO CLIP)

JAY SEKULOW, PRESIDENT TRUMP`S PERSONAL ATTORNEY: I think Bob Mueller is going to move expeditiously forward in this process as it relates to the president of the United States. I don`t expect this to be going on for years. As it relates to the president, I just don`t see it.

(END VIDEO CLIP)

MELBER: You agree, Joyce?

VANCE: I think that it`s up in the air and a lot of it depends on what Bob Mueller and his team uncover when they begin to look at the evidence.

In any grand jury investigation like this, when you start at the core, you move out to the periphery. That requires you to run down, in a case like this, an awful lot of financial records, banking records, tax records, interviewing witnesses.

And depending on what they uncover, this investigation may go on for a while. It`s important to note that when Deputy Attorney General Rosenstein commissioned Mueller as special counsel, he gave him the authority to investigate anything arising from the investigation, alleged Russia contacts.

But that doesn`t mean that Bob Mueller will give the president or anyone else a pass if they uncover criminal conduct, whether it`s within the special counsel`s ambit, whether it goes back to a US attorney`s office, you don`t get a free ride for criminal conduct just because it`s not directly related to the election here.

MELBER: And on the politics, governor, you said that people are in their camps. They`re not necessarily moving. One of our colleagues, Louis Burgdorf, spoke to some of the Trump supporters who were at that rally last night, which, of course, occurred against the backdrop of this news. Take a listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The president, I think he is working hard to do the American people a good job.

UNIDENTIFIED MALE: I think he`s done an amazing job.

UNIDENTIFIED MALE: Everybody knew what they were getting when they voted for him. So --

UNIDENTIFIED MALE: I`m very pleased with what he`s done. As soon as he got into office, he hit the ground running.

UNIDENTIFIED FEMALE: If nothing else, we`ve gained more faith in him because he`s given us a hope that we never had for years in this area.

UNIDENTIFIED MALE: All the things that he`s doing (INAUDIBLE) everything.

UNIDENTIFIED MALE: Yes, he`s doing a good job.

(END VIDEO CLIP)

MELBER: Governor, the line that jumped out to me in that was that basically everyone knew what they were getting. And isn`t that always the question with Donald Trump because you go back to the customers at Trump University or people who have been on the losing side of deals with him, and all of the lawsuits talk about his court experience of people saying they were stiffed, and that`s been documented, those were people who also, at one point in time, thought they knew what they were getting.

And then, at the end, in the Trump University case, some of the biggest fans of Donald Trump in America who spent thousands of dollars of their money to try to get into a room with him and found a cardboard cutout and went to court and said actually he`s a conman.

DEAN: He is a con man. He`s had a long history of that. I was most people -- not everybody, but most who supports Trump, in fact, do know what they`re getting. They know he`s a con man. Some people do it, not the voters, but there have been business people who`ve done it.

I actually talked to a guy who did business. And I said, why would you ever do business with him the second time. He said because there`s so much money sloshing around, we have to employ risk capital, and dealing with Trump is risk capital. That`s a pretty coldhearted assessment.

I think the big danger in Mueller`s investigation is that he`s finds money- laundering in the real estate purchases in Florida.

The other stuff is going to be hard to prove. I`m certainly not an expert on Russia, but the hacking, clearly, they hacked the election. Now, the question is just exactly what happened and how much compliance Trump and Trump Jr. have with that.

But the real danger, I mean, it looks pretty clear that Trump sold properties at inflated prices to Russians and then the Russians -- and that was a way of Trump making money and the Russians laundering money.

And that, if Mueller decides to follow that, which it looks like he will, then I think Trump`s got serious, serious trouble.

MELBER: Right. And you were speaking to the point Joyce raised that you could be looking at one felony, criminal hacking, and then find other and then figure out what to do with them. That`s the end of the process.

I also want to ask you both here something else really important. The other big question about the middle of the process, which is could President Trump end up before this grand jury himself? Many recall President Clinton in that videoconference to a grand injury in `98. President Bush also interviewed by a prosecutor inside the White House.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: In Washington today, President Trump Bush did something only a handful of sitting presidents have ever done. He answered questions at the White House in a criminal matter.

UNIDENTIFIED MALE: The president met for more than an hour, starting at 10:25 this morning with a special prosecutor investigating the leak, Patrick Fitzgerald, and a number of his deputies. Also, present was Mr. Bush`s recently retained private lawyer.

(END VIDEO CLIP)

MELBER: I want to add to the mix here, from Washington, Francesca Chambers, White House correspondent for the Daily Mail. Other two experts stay with us.

But you look at that history, Francesca, is that on the minds of people at the White House right now that this ultimately could involve Donald Trump testifying?

FRANCESCA CHAMBERS, WHITE HOUSE CORRESPONDENT, DAILY MAIL: Well, at this point, we don`t know that Donald Trump will have to do that. There is no indication yet that he would be the focus of this.

But the White House`s line on this so far has been I`m glad that they`ve impaneled a grand jury. Look, that means that this is moving forward. As soon as they can get that done, it means that they`ll start reviewing the evidence, they will move toward looking at whether there will be any indictment. And then, finally, this president will be able to put this behind him.

But, Ari, you`re talking about how long this could take. This certainly won`t be wrapped up by the elections next year. We`re looking at a grand jury investigation that could continue beyond those November elections. And I think that`s something that has to be concerning to this White House.

MELBER: Certainly. Joyce Vance, on the one hand, there are people who are excited politically and legally at the prospect of Donald Trump under oath or answering those investigative questions.

On the other hand, in fairness to Donald Trump, the precedent here is not that the presidents who ended up answering questions got in more trouble. Bush was seen as forthright. Donald Trump has done this before. This is video of him in one of the depositions relating to the restaurant dispute around the actual Trump Hotel in Washington, where he managed to handle himself.

Joyce, I wonder if you could give us your kind of scorecard of Donald Trump as a potential person giving that testimony.

VANCE: I think based on the demeanor that we`ve seen the president display and the public`s impression of him and folks close to him is people who incrementally tell the truth and whose stories change over time.

He may have some problems in these areas. Certainly, if, as many believe, this comes down to a question of the president`s testimony and Jim Comey`s testimony -- former FBI Director Jim Comey`s testimony on obstruction, it may be a very difficult credibility challenge for the president.

MELBER: And, finally, Francesca, before we let you go, what are you watching for going into this weekend, now that there is a vacation? Does that mean it`s a calmer period in Trumpland or is that just the silliest question I could ask you?

CHAMBERS: I think that you`ll have to look to the president`s Twitter. It`s supposed to be a working vacation at Bedminster, but that leaves a lot of time for him in the day and especially in the morning for him to be tweeting. So, I`m not sure that we`ve heard the last of his comments on Russia and on this yet.

MELBER: Well, and we`ve got a panel full of talkative people here. We all know tweeting is working. We all do it when we can.

Governor Dean, Francesca Chambers, I want to thank you. Joyce, as a prosecutor, I want to get you back in our hour. So, stick around.

Ahead, how does the grand jury impact the people closest to the president? History shows some major stress. We`ve got some tape you might want to see.

Also, another important story today. Attorney General Sessions goes in front of a room of reporters and tells them he may make it easier to jail them if they don`t reveal sources in the future. What does the First Amendment lawyer who won the Pentagon papers case think of that? He`s here, an exclusive on THE BEAT.

And it is fallback Friday on THE BEAT. What does that mean? I have no idea, but if you keep watching, we`ll figure it out together.

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

(COMMERCIAL BREAK)

MELBER: Donald Trump has called the Russia inquiry a hoax, a distraction and a fake story. But for his aides in the White House, this inquiry just got real.

That`s because even if he ultimately finds no wrongdoing, Bob Mueller, history suggests that grand juries are a headache for all the top White House aides who are often forced to testify alone in grueling interrogations.

That was the case for the Bush White House when it faced a special prosecutor investigating the leak of a CIA agent`s identity.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: A number of White House officials, including the vice president and White House counsel, have been questioned about who leaked the name of a CIA operative Valerie Plame.

UNIDENTIFIED FEMALE: Karl Rove, the most powerful political figure working for the president, went under oath for a fourth and -- his lawyer says -- final time today.

UNIDENTIFIED MALE: Scooter Libby was indicted by a federal grand jury today on five counts. The charges add up to a possible 30 years in prison.

(END VIDEO CLIP)

MELBER: And a whole cast of characters in the Clinton White House was hauled before the Whitewater grand jury.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Another White House intern, as well as former presidential advisor George Stephanopoulos, were called before the grand jury today.

GEORGE STEPHANOPOULOS, THEN ADVISOR TO PRESIDENT CLINTON: I have no firsthand knowledge at all about the nature of the relationship, if any, between the president and Monica Lewinsky.

UNIDENTIFIED FEMALE: President aide Sidney Blumenthal wrapped up his appearance before the grand jury with a bare-knuckle attack on Starr.

SIDNEY BLUMENTHAL, THEN PRESIDENTIAL AIDE TO PRESIDENT CLINTON: If they think they have intimidated me, they have failed.

UNIDENTIFIED FEMALE: Vernon Jordan leaving the courthouse, again denied he had ever helped Monica Lewinsky find a job in exchange for silence.

(END VIDEO CLIP)

Michael Isikoff, chief investigative correspondent for Yahoo! News and a reporter at the center of covering so much of that era, how did it impact the officials inside of those administrations?

MICHAEL ISIKOFF, CHIEF INVESTIGATIVE CORRESPONDENT, YAHOO! NEWS: Well, look, grand jury investigations are quite intimidating in and of themselves. For one thing, I can tell you, this has already begun to happen.

Everybody, who may have to appear, has to lawyer up. Hiring lawyers is expensive. People are already looking at hefty legal fees in the five figures now for the prospect of having to testify, both before Congress and now before this grand jury.

So, this is going to have a real impact. It`s not in any sense an incidental thing to have a grand jury that will be issuing subpoenas requiring testimony.

MELBER: No. And the first time you get one and your first time you get your lawyer and the first time you go in there, it`s a big deal.

I`m not going to ask you to compare how you`ve aged against George Stephanopoulos, who we just saw there with a nice bushy fop of hair in there in the front, but I will read to you something he said in reflecting on all this.

By the end of it, he said -- by the end of my White House tenure, receiving a subpoena was a routine matter, another item in the inbox.

Did he mean that, do you think, in a dark and baroque way or did he mean that eventually you just get on doing your job?

ISIKOFF: Well, look, after you get your first one and your second one and your third one, it doesn`t seem quite as formidable.

But there`s no question it`s a big deal. And it`s going to be a big deal. And I think, look, the fact -- it`s hard to know what to read into what we`ve learned about the Mueller grand jury at this point.

I do find it significant that he`s using one in Washington rather than Northern Virginia.

MELBER: Michael, there`s been -- let`s pause on that. There has been so much discussion about that because they were other previously impaneled grand juries in use. What do you at this hour make of the distinction?

I think the potentially most significant part of that is it would be an indication that Mueller is pursuing the obstruction of justice allegations relating to the firing of Comey and his request to Comey to let Michael Flynn go because you have to conduct a grand jury investigation in the jurisdiction that the potential crime was committed.

And if there was a crime committed here in the firing of Comey, in doing it because of his pursuit of the Russia investigation, that crime would`ve been committed within the District of Columbia where the White House is.

So, what that -- and by the way, I do find it baffling that Jay Sekulow, the president`s lawyer, keeps saying we have no information the president is under investigation because, clearly, if the obstruction of justice allegation is pursued, the president is at the center of it.

MELBER: Well, absolutely.

ISIKOFF: Those are words he is most likely going to have to eat.

MELBER: He`s a hands-on micromanager and it came to that in Russia. There`s no question. Michael, we`re out of time.

ISIKOFF: Sure.

MELBER: I appreciate you being here, as always. Michael Isikoff.

Now, straight ahead, a crackdown on the leaks coming out of the White House. What does it mean for the freedom of the press?

(COMMERCIAL BREAK)

MELBER: Today, the Trump Justice Department new investigations and policies to crack down on leaks.

(BEGIN VIDEO CLIP)

JEFF SESSIONS, UNITED STATES ATTORNEY GENERAL: This nation must end this culture of leaks. We will investigate and seek to bring criminals to justice. We will not allow rogue anonymous sources with security clearances to sell out our country.

I have this warning for would-be leakers, don do it.

(END VIDEO CLIP)

MELBER: Trump officials have been complaining about all kinds of leaks, ranging from the harmless information reporters have obtained from his own aides to leaks (INAUDIBLE) criminal like classified intel or those private conversations with foreign leaders.

What`s new today is that Jeff Sessions is replacing all that angry rhetoric with numbers and policies. Consider three headlines. One, he says, under Trump, there are now triple the number of leak enquiries compared to the end of Obama`s term, who had held a record.

Two, under Trump, there have been as many criminal leak referrals in six months as the past three years together. So, there are either more leaks or more complaints.

And finally, Sessions says he may create harsher policies to threaten reporters with jail time if they don`t give up their sources. The key word here is subpoena, which is, of course, enforced with jail time.

(BEGIN VIDEO CLIP)

SESSIONS: One of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance the press` role with protecting our national security.

(END VIDEO CLIP)

MELBER: Sessions didn`t say it explicitly, but he is referring to the current limits on media subpoenas. Now, those rules say you can`t threaten reporters with jail unless the attorney general finds that doing so would stop an imminent death or injury, address a great national security threat or is needed to counter substantial threat to the integrity of the inquiry.

So, the rules already do balance the press and national security. And there`s evidence this does go somewhere darker.

Remember, Jim Comey said before he was fired weeks after Trump entered the White House, Trump privately urged him to put reporters in prison for publishing classified information.

Joining me now on this big story, Jill Abramson, the former top editor for "The New York Times" and former NSA General Counsel Robert Deitz.

Robert, is this the right balance or does it need to be reset, as Jeff Sessions proposes?

ROBERT DEITZ, FORMER NSA GENERAL COUNSEL: Oh, I don`t know. I have to sound somewhat skeptical of the interview today. I view this as pure political theater.

Every administration rails against leaks. Certainly, the -- I was in the Clinton administration, the Bush administration. We complained about leaks. In fact, we had a meeting once with Ms. Abramson, trying to persuade her publication not to publish something.

MELBER: Well, Robert, let me cut in. He`s saying there`s triple the number of investigations. Is that theater? Is that true? Is that a lie?

DEITZ: I assume it`s true, but I believe it`s theater. I believe it`s a way of Mr. Sessions saying to the president, who is his boss, hey, I am doing what you want. We`re bulking up.

MELBER: Is that appropriate then, if you think it`s just theater designed to entertain or satisfy a boss and not based on the facts as the DOJ is required to use?

DEITZ: I think -- oh, I am sure the DOJ is following the rules they`ve established. What I`m suggesting is that I think this is much ado about not a whole lot.

MELBER: Got you. Let me bring in Jill. I`m going rapid fire because I like getting the answers. Jill, Robert Deitz, not alarmed. But you?

JILL ABRAMSON, FORMER EXECUTIVE EDITOR, "THE NEW YORK TIMES": I am alarmed because I think even if this is theater that what the attorney general is saying and the threat to crack down puts a freeze the discourse between journalists and their sources and is an attempt to criminalize journalism.

It really does affect -- it silences sources with a conscience who feel that it`s their duty and

MELBER: Yes, I mean, this --

ABRAMSON: -- it`s important to bring information to the press.

MELBER: Yes, I mean, Jill, Mr. Deitz is suggesting, well, this is going to go away but you were an editor at a paper where people went to jail because of media--

ABRAMSON: And even without going to jail these protracted leak investigations when a reporter is under subpoena, just fighting the subpoenas can go on for years and years. I mean, Jim Risen who didn`t go to jail, he was a reporter at the Washington Bureau of the Times, you know, he was subpoenaed by the Bush administration and then the Obama administration continued with a really baseless subpoena for him.

MELBER: Now, I have to mention, I would say on air on full disclosure, I was on the legal team for Jim Risen previously whenever the subject comes up. Robert, speak to Jill`s point thought that this is not nothing.

DEITZ: Look, it`s not nothing but the American reporters have shown repeatedly that they are willing to protect their sources. And if -- and if the Obama -- if the Trump Justice Department starts putting people in jail because they will not testify before a Grand Jury, I believe that a fury will rise saying wait a minute, the press is a bull work for our freedoms.

MELBER: Robert Deitz and Jill Abramson, thank you so much. I appreciate your views and your expertise on this. Now, coming up, I`m going to speak to a Supreme Court Attorney about this threat coming out of DOJ and whether the first amendment is a bull work against Trump. And later, it`s fall back Friday. What? We`ll explain later.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: I want the Attorney General to be much tougher on the leaks from intelligence agencies which are leaking like rarely have they ever leaked before.

(END VIDEO CLIP)

MELBER: Donald Trump may be the most blunt President in history but he`s not the first to test legal limits in the press crackdown. President Adams used the sedition act to jail journalists which Thomas Jefferson argued violated the First Amendment. President Nixon took to the New York Times to the Supreme Court over the Pentagon papers leak and lost. First Amendment Attorney Floyd Abrams won by arguing that the press have the right to publish foreign policy information. The court rejected Nixon`s security arguments which were echoing in Jeff Sessions` press conference today. And Justice Black wrote on that opinion that the guarding of military and diplomatic secrets at the expense of informed representative government provides no real security.

The Bush and Obama administrations also put the heat on reporters with subpoenas in that same leak case we discussed earlier in the show. A special prosecutor had New York Times Reporter Judith Miller jailed for refusing to testify, rejecting the arguments she had a journalistic right to withhold information about a crime allegedly committed via a conversation with her, an argument pressed as well by the Times lawyer at the time again Floyd Abrams. Now, if Jeff Sessions makes good on his threats today, he`ll be following the mixed history and these past administrations and he`ll surely be challenged by many first amendment advocates in court. Joining me now is that lawyer at the center of so many of these historic battles, Floyd Abrams a First Amendment Attorney, Supreme Court Litigator, Author of a new book The Soul of the First Amendment and we`re doing a full disclosures today, also my old boss from where I practice law before joining MSNBC. An honor to have you here.

FLOYD ABRAMS, CONSTITUTIONAL LAWYER: Hello Ari, nice to see you again.

MELBER: You look at Jeff Sessions` announcement today and particularly, he wants to make it potentially easier to do subpoenas to reporters. What does that mean and is that fairs amendment problem?

ABRAMS: Well, it`s certainly a first amendment problem. What it means is that they`re probably will be more subpoenas directed at journalists with all the -- at least all the problems that Jill referred to in your last segment, time, expense, preoccupation and the like but maybe worse. I mean, the law is not great from a first amendment perspective and protecting confidential sources of journalist. There are some good case law but there some really bad case law. And we don`t have a federal shield law in America so there`s no statute protecting so it could get very, very dangerous.

MELBER: When you hear the President and many people also on the left saying the leaks of these private presidential calls are terrible and interfere with any President`s ability to conduct foreign policy, do they have a point or is there a first amendment argument for those leaks?

ABRAMS: They have a point that presidents understandably like to be able to speak candidly and privately but there`s a significant first amendment value on the other side and that is the public was informed yesterday about really important stuff. I mean, here`s the President talking to the President of Mexico, the Prime Minister of Australia, and saying things which are against he`s interest but are very important, things indicating he doesn`t really expect Mexico to pay for the wall for example. All he wants is for the Prime Minister not to talk about it. And you know, that sort of things is highly news worthy, serves a genuine first amendment purpose and the public would know less. So I -- you know --

MELBER: Is the purpose to make the President look bad or is there a Democratic or civic quality to this?

ABRAMS: I don`t know the intention of whoever the leaker was. The effect is yes, to make the President look bad in this way but more important, it does inform the public. The public may or may not want to be informed about this but it`s important information just as his argument with the Australian Prime Minister was which leaked when it happened but without at all the force of having the transcript and transcript is reality.

MELBER: Now, you thought this case is -- have you ever heard of President say as directly as Jim Comey says as Trump did that he wants journalists just to go to jail for publication?

ABRAMS: No. I wouldn`t be surprised if Richard Nixon thought it but I think we know he didn`t say it because he taped himself. We would have heard him saying if he said words which we heard but no, I don`t think of anyone sits John Adams really, who really made that sort effort to jail journalist and that case, not because of leaks but because he thought what they were writing they shouldn`t have written.

MELBER: Criticism.

ABRAMS: Yes.

MELBER: Floyd Abrams, always great to see you. Thanks for being here.

ABRAMS: It`s good to see you.

MELBER: Coming up, is it normal, Republicans heading out for vacation but not before cramping the leader of their own party`s style and power? Is that business as usual or something different going on? And who was out of bounds in this wild week? Find out who is the making the inaugural list of our fall back Friday segment. Stay tuned.

(COMMERCIAL BREAK)

MELBER: Did you ever think about this? President Trump`s harshest critics and biggest supporters agree on one thing. This isn`t normal. It was never supposed to be. Firing the FBI Director without cause, spilling secrets to Russians in the Oval Office, calling your own Attorney General weak and crafting a statement for a secret meeting you didn`t even attend, not normal. Now, through it all, there`s a civic activist who says that we can respect opposing views without letting attacks on civil society become normalized. Amy Siskind writes that experts in authoritarianism advise to keep a list of things subtly changing you so you`ll remember.

This week, she listed 110 things that she asserts the Trump administration have said or done that are testing the limits of what should be conventional or acceptable for a constitutional democracy. Amy Siskind is from the New Agenda here and joins me along with Neera Tanden, President CEO of the Center for American Progress and the former Adviser to Barack Obama and Hillary Clinton. Let`s start with you, Amy. We do hear from Trump supporters that they like the attitude and fire, they like that -- there`s an upsetting quality to this that upsets frankly people like you. You`re aiming for something deeper, what are you trying to do with your list.

AMY SISKIND, NEW AGENDA PRESIDENT, AND CO-FOUNDER: Well, I think we need to look at this, not as a Democrat versus Republican construct. What we`re talking about here is democracy versus authoritarianism which is something our country has never experienced before. And each week the changes are subtle but if you follow the list, you can see certain elements of our democracy fading and as well our values and our civil rights starting to erode as well.

So this is meant to give us a way to trace our way back to normal because of some of the things in the early weeks, take, for example, he`s the executive producer of celebrity apprentice or he communicates with us on Twitter. Some of this things, week by week, we have normalized and accepted as OK because the chaos is such each week that we`re just trying to keep up with. It`s Tuesday and there`s ten more things that I need focus on. So the list which gets longer and longer each week unfortunately gives you a full list of what happened during the week, everything that was not normal.

MELBER: Neera, pardon the over (INAUDIBLE) but you are something of an insider. I think Amy is coming from the position of something of an outsider, although we all contain multitudes. As an insider, what do you think of this effort?

NEERA TANDEN, CENTER FOR THE AMERICAN PROGRESS PRESIDENT CEO: I think it`s really critical for us to recognize that Trump is -- I mean, Trump is basically living in a world where he feeds off of outrage after outrage. And it`s absolutely correct the things that you know are incredible, like firing the FBI Director. You know, we sort of look at that in the rear view mirror and act like it`s no longer a big deal.

So I really applaud that effort and I think you know, we also have to recognize that there are some forces that are pushing back against this kind of creeping authoritarianism. And I mean, the fact that the Senate is not going to allow essentially recess appointment is an insurance policy against Trump firing the Attorney General in order to basically fire Mueller. So you know, I think this list is really important and I applaud Amy Siskind`s work and I also think you know, we have to put pressure on Republicans and Democrats to be vigilant.

MELBER: Amy, can you point to any specific sort of results or success of this effort so far?

SISKIND: Well, the effort -- the people are starting to "weaponise the list." So they`re calling their Congress people or their local representatives to say these ten things happened this weekend. I`m very disturbed because as much as we like to say there are checks and balances, what he`s gradually doing is eroding those week by week. And this man sitting in August in New Jersey with his Generals and populous for a month without Congress in session, we can pretty much guarantee he`s going to start to push boundaries and try to figure out ways to get rid of Mueller and or to lessen what the Special Counsel can take on.

MELBER: So you see this is a blueprint for activism as well?

SISKIND: Each week he`s pushing the boundaries. Well, I do, I do see people using it but I also -- hopefully it awakens people to the fact that our democracy is fading and are gradually -- you know, first the judicial branch, then the fourth estate is being attacking and by getting rid of Priebus was sort of the last line to the Republican Party and bringing in a general to what is traditionally a civilian slot. Now he`s going to take on the legislative branch.

MELBER: Neera, put this in the context of Democrats who have focused a lot on Russia for all the understandable reasons about Amy saying there`s literally a hundred plus other things they also need to deal with.

TANDEN: Look, I think that we all have to be vigilant about our democracy and I think that the effort to remind voters of how important these things are is vital. And I think -- look I think the fact that Republicans and Democrats united to pass a Russia Sanctions Bill was an important check on the President. That was -- it`s not a policy he favored obviously. It had overwhelming Democratic and Republican majority. And I think even in the repudiation of health care bill, you can see that Republican, Moderate Republicans are willing to separate from the President. I think that is also because they recognize -- obviously, that was a terrible health care bill -- but I don`t think it`s an accident that it happened day after the interior secretary threatened a Senator. And so, I think these things are combining and I hope more and more Republicans and Democrats recognize that they are Senators and members of Congress but also need to be vigilant.

MELBER: We`re out of time. Was that Murkowski threatening list?

SISKIND: It was, as well as threats to women generally in the Republican Party.

MELBER: Amy Siskind and Neera Tanden, I`m learning something from both of you. I appreciate your time.

SISKIND: Great to be with you.

TANDEN: Thank you.

MELBER: Now, who needs to fall back on this Friday? We have a new segment on THE BEAT. You may like it and you may not, there`s only one way to find out after this break.

(COMMERCIAL BREAK)

MELBER: What a week in it`s been in politics and today we have a special segment we are debuting on THE BEAT, "FALLBACK FRIDAY." Now, this should be really good unless it`s really bad but telling someone to fallback, means they need to take a breath or chill out or even rethink their choices, which we all do need to do sometimes. And we have a very good panel to tell us who they think needs to fall back. Comedian Chuck Nice, The Nation`s Joan Walsh, and a Los Angeles Author Amy Dubois Barnett former Editor In Chief of Ebony Magazine. Chuck, we`re about to do this.

CHUCK NICE, COMEDIAN: OK, that`s good.

MELBER: You`re here for our maiden voyage.

NICE: Yes.

MELBER: We`ll skip the music, we`ll do get the music.

NICE: I feel like I`m about to solve a crime right now.

MELBER: Chuck, you`ve been -- you`ve been watching the news, who needs to fall back?

NICE: Well, I got to tell you, this -- I had to go with the DOJ. Finally, someone is addressing the pressing issue of white people being discriminated against by Ivy League schools.

MELBER: This is big.

NICE: And this is huge. I am so happy that this is finally come to the floor the way it should be because whenever I walk on an Ivy League campus, I always say to myself, where are the white people? I don`t understand what is going on, on Princeton`s campus right now.

(CROSSTALK)

MELBER: I`m asking the big question.

NICE: Stupid questions.

MELBER: Joan, who needs to fall back this week?

JOAN WALSH, THE NATION NATIONAL AFFAIRS CORRESPONDENT: I would say fall back Martin Shkreli who is acting like a little Trump mini me today as he`s being accused of -- excuse me, convicted of three felonies but he threw like a victory party for himself and thanked his lawyers.

MELBER: This was -- this was amazing and this is a story that hasn`t gotten much attention but you know, also matters with health care and drug pricing which is was one of the many issues he`s a controversial but I think we -- let`s take a listen. I think we have him today.

(BEGIN VIDEO CLIP)

MARTIN SHKRELI, FORMER HEDGE FUND MANAGER: This was a witch hunt of epic proportions and maybe they found one or two broom sticks but at the end of the day, we`ve been acquitted of the most important charges of this case and I`m delighted to report that.

(END VIDEO CLIP)

WALSH: Dude, you`re going to prison for some years, up to 20. It was not -- he also, he called it a great day. He congratulated his lawyers. He just did this. Now that Anthony Scaramucci is out of picture, I mean, we might have told him to fall back except I guess John Kelly already did.

MELBER: John Kelly did tell him to fall back.

WALSH: He stepped into the Trump mini me role. He did a total Trump where he`s both congratulatory to himself but also super defensive and it`s a witch hunt so fall back.

MELBER: It`s the-it`s the weird thing in the culture of the language that yes, he even says witch hunt. Amy? What`s your pick?

AMY DUBOIS BARNET, FORMER EBONY MAGAZINE EDITOR IN CHIEF: You know -- and also, Shkreli is delusional too, I need to say that. I mean, delusional on a Trump level but my pick for fall back this week is Caitlyn Jenner who was seen in Los Angeles this week touring around in a flashy vintage convertible wearing one of those red -- you know, make America great hat a week after Trump`s plan to ban all transgender people from the military.

(INAUDIBLE) you know, Caitlyn did come out last week against the ban and she talked about you know, the fact that it was discriminatory et cetera but clearly, clearly she`s a staunch Republican and clearly she wants to make that known. She`s out here you know, in her little hat flaunting her residual (INAUDIBLE) privilege. It`s obvious that the 65 years that she spent as a rich white man is trumping, no point intended and all point intended the two or three years that she spent as a transgender woman because that residual privilege is influencing her obvious support of Trump and his, I have to say, you know, homophobic agendas.

NICE: You know, I just became aware of that right when you put that up.

MELBER: You learn --

NICE: You learn things watching the Youtube, you do learn things watching THE BEAT. And I just want to say, if only I could get my family to be as faithful to me as Trump supporters are to him.

MELBER: Wow!

WALSH: It`s crazy.

MELBER: All right, I got min. Mine is a special one. It`s someone who had already fallen back for six months. Stephen Miller did a round of wild interviews on the travel ban. And you remember, he fell back for months on end then he came back this week and let`s look at his return.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Can you tell how many -- how many --

STEPHEN MILLER, PRESIDENT DONALD TRUMP`S SENIOR ADVISOR FOR POLICY: Maybe we`ll make it carved out in the bill that says the New York Times can hire all the low skilled, less paid workers they want from other countries and see how you fell then about low wage substitution.

UNIDENTIFIED MALE: But that`s not what you said.

MILLER: And it shows your cosmopolitan bias. And I just want to say --

UNIDENTIFIED MALE: It just sounds like you`re trying to engineer the racial and ethnic flow of people into this country through this policy.

MILLER: Jim, that is one of the most outrageous, insulting, ignorant, and foolish things you`ve ever said

(END VIDEO CLIP)

MELBER: Steven Miller, Joan Walsh, is back. I think he needs to fall back. And it was interesting the tell I noticed was at the end of that, a couple of exchanges like that and then at the end, he did the thing that you do at the end of like a really rough wedding toast where like you were so beheaded to not acknowledge it would be worse. And so he looks at Sarah Huckabee Sanders, and he`s like, well, this went as planned. I worked in the White House, bye.

WALSH: And then I heard he got high fives you know, back behind the scenes. That people did think it went well, that the extreme ideologue cosmopolitan is an insult with very old roots. It can often be anti- Semitic. I think he`s Jewish so I don`t think he`s actually doing --

MELBER: Yes, I don`t think that he meant it that way but it was --

WALSH: Well, it`s sort of -- it`s sort of elite -- exotic elites and it`s just a complete nationalist, White nationalist dogma.

MELBER: Yes, and he was there to brief on immigration policy and ended up attacking people on a personal language which is not a policy presentation. We`re out of time, Chuck, so should this whole segment fall back or should we do it again?

NICE: You know what, I`d say move ahead not fall back.

WALSH: We`re coming back.

MELBER: I want to thank Chuck, Amy and Joan and thanks to everyone over the at home for watching. I wish you all a great weekend. That does it for me, I`ll see you back Monday at 6:00 p.m. Eastern. We`re on Facebook at @THEBEATWITHARI or you can e-mail me ari@msnbc.com but don`t go anywhere, "HARDBALL" starts now.

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