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

Mistrial in senator's bribery trial Transcript 11/16/17 The Beat with Ari Melber

Guests: Laura Payne, Liz Plank, Mark Burns, John Harwood

Show: THE BEAT WITH ARI MELBER Date: November 16, 2017 Guest: Laura Payne, Liz Plank, Mark Burns, John Harwood

ARI MELBER, MSNBC HOST, THE BEAT: Also, a bipartisan call for new evidence from Jared Kushner in the Russia probe. That`s developing tonight.

And also, a new allegation of inappropriate conduct alleged against Sen. Al Franken, with his accuser speaking out and also today accepting his apology. We have more on each of those stories.

But we begin now with the nine women accusing Alabama Republican Roy Moore of misconduct. Their accusations have compelled most politicians to pick sides here. Many Alabama Republicans standing by Moore. Most Washington Republicans turning on him.

And yet, the normally outspoken President Trump, who, let`s remember, sounds off on controversies ranging from NFL protests to white supremacy rallies, who has now had a week to assess this controversy relating to allegations of pedophilia, Donald Trump, that once-loud figure, has turned silent, ducking questions on the matter yesterday. And today, sending a spokesperson out to claim Trump has no real position on a race, where you might remember, he embraced Moore after his primary win as a great guy who will really help make America great again.


UNIDENTIFIED FEMALE: Should Roy Moore resign, Mr. President?

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: He thinks that the people of Alabama should make the decisions on who their next senator should be.


MELBER: Yes. Tonight, I can report for you that this Roy Moore scandal is now achieving what virtually no campaign aide or Trump family member or chief of staff has ever managed to achieve. It has rendered this voluble president mute, reducing a man who ran against PC speech limits into a quiet, reticent, quailing figure on the sidelines of his party`s biggest decision since his own nomination.

The Moore campaign dug in here in a rally late this afternoon, a rally that featured clergy, a rabbi, and a former presidential candidate Alan Keyes.


UNIDENTIFIED MALE: They`re trying to tell you this is about Roy Moore. But, in fact, in fact, it is about stripping you of the presumption of innocence.

ROY MOORE (R), ALABAMA SENATORIAL CANDIDATE: "The Washington Post" has brought scurrilous, false charges, not charges, allegations, which I have emphatically denied time and time again. They are not only untrue, but they have no evidence to support them.


MELBER: Moore defiant there, but he did not answer specific questions about the sexual misconduct allegations or offer evidence regarding most of them against him.

The latest here, we can report, are from two new women on record. They recount his advances on them. One in her teens when this occurred, allegedly. Many Alabama Republican officials are standing by Moore. We interviewed one last night on THE BEAT, but not all.

An Alabama Republican party leader who worked for Alabama Congressman Sonny Callahan and Terry Everett and also represented Alabama at the GOP Convention Rules Committee as a Trump delegate was a Moore supporter and even attended his victory party.

Laura Payne joins me. You backed Donald Trump for president. You previously supported Roy Moore in this race. Can you continue supporting him?

LAURA PAYNE, 2016 TRUMP DELEGATE: I supported both of the - I mean, both Luther Strange and Roy Moore. And I`m having a hard time seeing how I`m going to be able to vote on December 12th for Roy Moore, considering the women`s allegations.

MELBER: Is that because you believe that some or all of these women are telling the truth about Roy Moore?

PAYNE: I feel like there`s a lot of credibility to their stories. I looked at "The Washington Post" article, with the four women. There seemed to be a lot of patterns there of behavior that they cited and they didn`t know each other and it was different times - over multiple period of years. And that alarms me.

And I saw the women that Gloria Allred represented on Monday. And she had a very convincing story to say as well. I don`t know if they`re telling the truth or if they`re not. I think we should give them the benefit of the doubt because it takes a lot to come forward and tell a story like that.

And the fact that they`ve waited all these years says a lot. And it`s not something they`re proud of. It`s not something that they are embarrassed by and they don`t want people to know. But when they see a man that has done this to them and he`s rising to power and he`s going to be in one of the top most powerful positions in the country, that`s alarming for somebody to see, to be a victim and see this man ascend like he has through the ranks of power.

MELBER: And you, as I`ve mentioned, have quite a record and pedigree in Alabama Republican politics, both as a congressional aide and a political activist. And as I mentioned, the RNC, had been a Trump delegate in the rules committee and all that.

So, what do you think of what Alabama Republican leaders are doing about this? Do you think they are taking this seriously enough and they`re giving true vetting to Roy Moore, given, as you say, some of the credible accusations that have emerged?

PAYNE: I think they are looking at this seriously and they`re considering their options, but there`s not a lot they can do. We do have a nominee and he got the majority of the vote. That`s why he`s our nominee.

And Roy Moore supporters have been with him for decades. And they are strong and there`s a lot of them. They`re very powerful, loud voices. And it`s hard to deny those people the candidate that they wanted to put forth on the ballot.

And other people like myself, I was a Mo Brooks supporter, until we got the runoff and we voted for the two candidates. And so, I think the Mo Brooks supporter and the Luther Strange supporters are probably looking at this going, hmm, I`m not sure if I can vote for this man. Or, maybe I can. Maybe these allegations aren`t true and they are - it is political. There`s a lot of different thoughts out there.

I think a lot of -

MELBER: Given the two choices, then who do you plan to vote for? I don`t know that I can vote for Roy Moore at this point. But I will say, I`m not in the majority on that. I think a lot of Republican activists in the state feel like they can vote for Roy Moore because they`d rather vote for - they`d rather vote against the Democratic agenda and the abortion issue is a big deal among the Republican Party. And that`s a big reason that`s cited that they will have to stick with Moore if they do vote. So, I think a lot of them will -

MELBER: Laura, stay with me because that`s a point I want to raise. I want to broaden our discussion. I want to bring in Liz Plank, an executive producer of "Divided States of Women" for "Vox" and a reporter who has basically looked at these issues for a long time when you talk about feminism and politics, really. Laura is still with us.

You heard her. What do you say to her, what do you think as a person who`s obviously loyal to the Alabama Republican Party, but is breaking ranks with Moore.

LIZ PLANK, EXECUTIVE PRODUCER, "DIVIDED STATES OF WOMEN", "VOX": Right. I mean, I want to commend Laura on deciding to break with Roy Moore and standing by her morals.

But, I guess, my question is, if you believe the allegations and you believe the women who are accusing Roy Moore, do you believe the women who are accusing Donald Trump? Are we going to have the same standards when it comes to the senate as we do for the White House?

And I think it`s particularly damaging for the Republican Party - I mean, what`s happening right now and what we saw in full today, I have to say, was difficult for me to watch. I`m sure for many people, it was difficult to watch to see religious leaders and pastors defending a child molester or alleged child molester -

MELBER: Alleged child molester, yes.

PLANK: - alleged child molester is really, really problematic and troubling. And that damage cannot be undone. Child abuse is a very complicated, complex kind of trauma. And I have difficulty seeing how the Republican Party can sort of move forward, even if Roy Moore is taken off the ticket. How does the Republican Party survive this?

MELBER: Well, you mentioned that in the religious part. And that is another guest we have with us from South Carolina.

So, let me broaden the discussion. This is Pastor Mark Burns as well. He`s a Trump surrogate and he`s standing with Moore.

Pastor, you heard Liz Plank lay it out. You heard a fellow conservative of yours in the State of Alabama, Laura Payne, saying it is impossible for her to continue to support Roy Moore given what these women allege. Why do you come down so differently?

PASTOR MARK BURNS, PASTOR OF HARVEST PRAISE & WORSHIP CENTER, SOUTH CAROLINA: Well, that`s the key word, is "allege." Again, I just really believe that we`re following a slippery slope if we`re allowing the media and public opinion to become the judge, jury, and executioner.

MELBER: Sir, I`m asking you. But, sir, I`m not asking you about the media. I`m asking you, as a pastor, there were pastors who stood up there with Roy Moore, and this is not about the media. I`m asking a question, I`m giving you the chance to answer it, pastor.

BURNS: You let every one of them speak without cutting them off. You do not have to cut me off.

MELBER: I`m not cutting you off. I`m focusing the question, because you start making it about the media. It`s not about the media, sir, pastor. I`m asking you to answer what your judgment is, sir.

BURNS: Let me finish.

MELBER: Go ahead.

BURNS: Let me finish! OK. As my judgment, we live in a country that declares you should be innocent until proven guilty! Not guilty until proven innocent. That is wrong.

My only question is, those allegations should be taken serious. What the women are saying should be taken serious. And it should be investigated.

My only concern is, when you start hearing people say, I don`t think I could vote just because somebody alleged. The fact of the matter is, there are so many holes in these stories. And there are so many concerns in these stories that we need to begin to question.

I think that`s why the different religious leaders stood and signed the pro-family leaders a letter today, because, as a pastor, I can`t make my decisions based off of what somebody said happened. I have to make some decisions based off of what`s actually happened.

I am going to guide them, regardless. I`m going to love on them regardless. But I`m not going to send some - I`m not going to condemn them without knowing the truth.

Jesus said like this. You without sin cast the first stone. You sin, go sin no more. That`s what Jesus said. So, the fact that - I can`t sit up here and say, Moore did it or those women are lying. That`s not what I`m saying.

What I`m saying, we need to examine, just like we examine Moore`s life, we need to examine their life.

MELBER: That`s what we`re doing. Let`s do some examining - sir, yes, let`s do some examining. Laura, take a listen to Tina Johnson. This is one of the accusers about what she says happened to her.


TINA JOHNSON, ROY MOORE ACCUSER: My mother and me went to his office for me to sign custody papers of my son over to her. And we went in, as soon as we hit the door, he was real flirtatious, coming on, the whole time. And we was in there forever, it seems.

And then, we eventually got up to leave. And as we did, when I - my mother went first. And then, when I got up and went out, he grabbed my behind. Just hard. That`s what he done.


MELBER: Laura, if you would speak to that as some of the testimony here and also anything you might respond to what the pastor argued?

PAYNE: I would say, it`s always a he said/she said case in a lot of these situations. There`s not a video there, there`s not another person in the room.

And, again, that`s another reason why I want to make sure that people consider these women and their accusations. They don`t really have anything to gain from coming forward and saying things like this.

Their names are get smeared. Their lives are being investigated and torn - they`re trying to find any bit of - anything to discredit them. And it`s unfair, I think. It`s really unfair, the way that these women are attacked when they do come forward.

And that`s the reason for the silence all these years. They didn`t want to go through this. They didn`t want to be discredited or not believed.

But at the same time, they are allegations and there are two sides to the story. And I think a lot of the Moore supporters in Alabama, they`ve been with him for a long time and they feel like he is a good guy and he`s a godly man. I hear that quote a lot that he`s a godly man.

But I go back to my times when I worked for Newt Gingrich on Capitol Hill. And Denny Hastert was up there, representative, and he rose to power as speaker of the house. No one knew about when he molested little boys when he was a coach back at the school where these little boys were being taught. He molested them.

And none of that came out until after he was speaker, a long time after he was speaker. And when it did come out, it only came out because there was proof of a money trail, the FBI investigated a money trail. And that`s when the news of the boys came because, apparently, he was paying one of them off, basically, to stay silent.

MELBER: Right. There was that hush money and there was underlying investigations. Liz, go ahead.

PAYNE: Yes. You never know what`s out there. And if there hadn`t been that money trail, they wouldn`t have ever found out. Those (INAUDIBLE) would have ever never come forward. So, those are the concerns that I have when I look at these things.

PLANK: And it is a he said/she said, except in this case, it`s a he said/she said, she said, she said, she said, she said, she said, she said. Nine women have now come forward with very similar allegations. They do not know each other.

"The Washington Post" story that outlined two of the women who have allegations had more than 20 sources. And so, when you`re making a decision, like the pastor is saying that, we don`t know what happened, you`re choosing to believe one person. You are siding with that person. And you`re saying these women are all guilty of lying.

MELBER: Right. And, pastor, I`ll go back to you for your response. I`m going to play for you some of what the other clergy said today because Roy Moore has invoked the Ten Commandments, he`s invoked religion, he has the pastors out there.

The point isn`t that not everyone gets a chance to speak in politics. The point is at least some of the folks are basically taking their position and using the pulpit to say that Roy Moore is right and that all the women are wrong or lying or part of some conspiracy. Take a listen to that.


ALAN KEYES, FOUNDER, RENEWAMERICA: Roy Moore has stood firm and he has never surrendered this nation`s core allegiance to the truths that make us free.

UNIDENTIFIED FEMALE: The most valiant leader running for office in the United States of America today is Judge Roy Moore. Facts appear to show us that Roy Moore is being framed.


MELBER: Pastor, is this the right line? Or are we better off being humble about at least what is out there and maybe saying that there are serious allegations that require vetting?

BURNS: Well, every case is different. We cannot take every case to be the same. I agree with you that there are some cases that would need to be vetted.

There are some - without question, you need to - any allegations like this need to be taken extremely serious. My concern is, again, how we just immediately found him to be guilty because of the allegations, without any factual proof are coming up.

And now, they`re coming up 40 years later, when there were plenty of opportunities for these women to come out while Judge Moore has been a very public person, having two national situations, one with the gay marriage and one with the Ten Commandments.

He drew a lot of national attention. And that was great opportunities for these women to come out or some of them to begin to come out.

MELBER: Can I ask you about that? Can I get one question into you about that? And then, I`m going to let Liz respond. We`ve gone long on time. But this is what I want to ask you, sir.

BURNS: - because it happened to me -

MELBER: Sir? Let me ask you this, pastor.

BURNS: - a lot like what CNN did.

MELBER: Let me ask you this, pastor. When people say, it`s not the right time, I never quite understand that because, in law, there are some things that are barred by time. And that`s a legal fact.

But in an election, I think part of the reason this is coming out now, according to what we`ve learned from some of these individuals is, they didn`t know that this individual was going to make it this far and potentially be in a six-year term representing the State of Alabama in this high office of the United States Senate.

Isn`t the issue whether this is true or not, not the timing of when it came out?

BURNS: Well, to me, I think if there was a real deep scarred issue in some of these women, just what you just said, I think, is alarming because what you`re essentially saying is it`s not that they were scarred for life because somebody sexually assaulted them, but because the person that sexually assaulted them or allegedly sexually assaulted them is now about to become a US senator. That`s exactly what we`re arguing.

If he was guilty, then it should have came out because he sexually assaulted them, not because he`s about to become a United States Senator. That`s backwards. And that`s my argument.

PLANK: You got to remember -

BURNS: - Alabama GOP is standing behind Moore. I think that`s why religious leaders are standing behind Roy Moore -

MELBER: We`re over on time -

BURNS: - because we see it as a -

MELBER: I`ve got to do equal time. So, Laura and then Liz. Laura and then Liz.

PAYNE: You`ve got to remember, he was assistant DA at the time of these allegations. It was a small town. He`s the big man in town. He`s the single guy with the big job. Some of these women may not have - they may have been from broken homes or maybe they weren`t.

But he was well respected in town. People don`t want to believe somebody they don`t know. He had all the power. And he could have done anything. District attorney`s office, that`s what they do. They work with the police and they prosecute these kind of cases.

They didn`t feel like they had a voice. That`s the whole point. Why speak out then when you know no one is going to listen to you.

MELBER: Liz, on that final point - I`ve got to go to Liz because we`re on the timing. Liz, on that final point that Laura raises, he was a prosecutor and a DA. He allegedly said to one young woman, no one will believe you. Another young woman telling a reporter, the reason they`re speaking now is because nobody asked back in the day and people are asking now.

PLANK: And we are calling them women, and they were girls. So, this happened to some of the accusers coming out today are - it happened to them when they were in their 20s or later in life. But, primarily, he was going after teenage girls.

And so, again, the intricacies of child abuse - I mean, does the pastor - have you counseled anyone who`s been a victim of child abuse? Do you know the intricacies of that? Do you know a child who has experienced that and came forward right away and told all the adults in charge?

BURNS: We just had a conversation with one of my staff members who went through a very similar situation. And she gave a vivid - very vivid - this is today. Today. One of my staff members, today, gave a very vivid account of what took place in her life when she was 16 years old as a minor.

PLANK: So, she reported it when she was 16 years old?

BURNS: She sure did. And, guess what, that judgment -

PLANK: Well, she`s the exception.

BURNS: And I think there were some criminal charges that took place. So, the fact of the matter is, each situation is different. You can`t put them all in the same box. There are some strong women and strong, strong young women who have come openly way back in the day before any of the accusers decided to run for US senate.

Now, I understand the importance of some women not coming forward in the beginning. I get that. But I also know that there are millions of strong women that have come out. Millions of strong women that have faced the accusers and put their accusers behind bars -

MELBER: I`m going to extend an invite to continue the discussion because it`s an important one. And this is a conversation between a conservative for Moore, a Trump-supporting Republican who`s said that this means she can`t support Moore, and Liz Plank has been critical of Moore. These are conversations that I think are worth having.

So, I thank each of you for being here. Liz, stay with me for later in the show.

Coming up, though - we have to fit in a break - and then there is developing news with Jared Kushner and the Russia probe. A bipartisan warning from investigators about him withholding evidence about WikiLeaks. That`s brand new.

Also, reports that taxpayers can be footing the bill for lawsuits that are about Donald Trump`s private businesses. Richard Painter is here on that.

And later, the right-wind media is talking the big game about Roy Moore. And then, there was a Sean Hannity 180. That`s ahead.

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


MELBER: As new accusers come out against Roy Moore, some Washington Republicans now exploring some drastic hypotheticals. "POLITICO" reporting one plan would ask the current Alabama Senator, Luther Strange, who lost to Moore, to, "resign" from his seat in order to trigger a new special election.

The idea is to use that change as a swap and get a new candidate other than Moore in, trying to change the election itself for totally partisan ends.

You can think of it as kind of like gerrymandering with a clock instead of a map. The White House has ducked most of this dispute, as I mentioned, at the top of the show, but today the press secretary did say Trump believes Moore should effectively stay on the ballot, rejecting that hypothetical.

Meantime, over at "Fox News", the head fake end to all head fakes. It was just two days ago that Sean Hannity promised this.


SEAN HANNITY, "FOX NEWS" HOST, "HANNITY": For me, the judge has 24 hours. You must immediately and fully come up with a satisfactory explanations for your inconsistencies. If he can`t do this, then Judge Moore needs to get out of this race.


MELBER: That`s about as clear a line as you can draw. And then, by Hannity`s next show, there were four more accusers who had come forward. We`ve covered that. And then Hannity suddenly lost that clear line he drew and began punting, kind of like the White House.

Now, Sean Hannity`s deadline has come and gone, and his answer, the voters should decide.


HANNITY: We demanded, rightly, answers from Judge Moore. He provided them to the specific questions we asked. I lived in Alabama. I enjoyed my time in Alabama. And I know these people.

I am very confident that when everything comes out, they will make the best decision for their state.


MELBER: I`m joined by Liz Blank back with me. And John Harwood, CNBC editor-at-large. John, that didn`t seem to end the way Sean Hannity suggested it would.

JOHN HARWOOD, "CNBC" EDITOR-AT-LARGE: No, I think Sean Hannity choked at that particular moment. Once he heard some answers and he couldn`t quite say to Judge Moore, get out; and he said, I know the people of Alabama, they`re good people.

It`s not about the people of Alabama. It`s about Roy Moore. He simply got to a point that he didn`t want to cross the line he so flamboyantly said he would, but he is right about one thing. The voters are going to decide it.


PLANK: Also, Sean Hannity`s advertisers are pulling out because of his coverage. And so, it`s sort of not surprising for him to take this different approach.

But it`s also exactly what we heard from the White House today, right? That we should leave it up to the voters to determine if Roy Moore should be in office, as if this was "American Idol" or something, as if the party shouldn`t have a set of moral standards and a set of -

MELBER: Right. John Harwood, forgive me for being obvious, but it`s part of my job as a news anchor, the issue is that the parties present their candidates to the public for a vote. And sometimes, when news comes to light, information comes to light, they then withdraw that.

The Alabama Republican Party in the driver`s seat there, not withdrawing. And then the question is, who else who has these debates or is in these positions stand by people or not. That`s why this is a real debate before the election next month.

HARWOOD: Right. And we`ve seen that Roy Moore is losing altitude. He`s losing some of those people. There`s a new "Fox" poll out tonight that shows Doug Jones, the Democrat, up by eight points over Roy Moore. That`s a significant margin.

But I think it`s a measure of the desperation that Republicans in Washington are feeling at the prospect of losing their 52nd seat that they`re entertaining these ideas about having Luther Strange resign and trigger a new election.

Luther Strange`s office, the Republican Senatorial Committee and the Governor of Alabama, Kay Ivey, have all said that that`s not possible. It`s not going to happen. If Luther Strange were to resign, they would appoint someone to fill his seat only until December 12th, when that election for which voting has already started gets underway.

So, nobody expected to be in this situation. It`s disorienting for a lot of Republicans, but it looks as if we are stuck with a situation where it`s going to be Moore or Jones. And, right now, Jones has got a clear advantage.

MELBER: And, Liz, I have to ask you about Ivanka Trump saying, "there`s a special place in hell for people who prey on children" and then does not address Moore at all. And it raises the question, Liz, is there a special place in purgatory for people who are only willing to sub-tweet about pedophilia allegations?

PLANK: Right. And, again, if we believe Roy Moore`s accusers, why aren`t we believing the president`s accusers? If we - and coming back to the Franken news, which I`m sure you`ll get into, if the White House position is that we should launch an investigation into Al Franken, why shouldn`t we launch an investigation about the president?

If that means that you are unfit to serve, then why isn`t it the same thing for the president? And I remember a time where, Todd Akin, right, a Republican candidate said something about legitimate rape, which was offensive and horrible, and the Republican Party basically decided to push him out and thought that that would have repercussions for the party on other -

MELBER: Right. And those were words. That was a position.

PLANK: Exactly. And so, the fact that even in the case of an alleged child molester, that there is -

MELBER: Right.

PLANK: - even any question of perhaps putting him on the ticket is revealing on the party.

MELBER: And you mentioned something that`s actually our next story. Liz Plank and John Harwood, thank you both. John, I`m going to see you in a minute.

There is this other report today. A new accusation of sexual misconduct against Democratic Senator Al Franken. There`s a radio newscaster alleging that Senator Franken kissed her and groped her without her consent while they were doing a rehearsal for a skit on a USO tour in 2006.


LEEANN TWEEDEN, ACCUSE OF AL FRANKEN: He was like, we need to practice the kissing scene. And I`m like, yes, OK, whatever. And I just sort of blew him off because I was like - we don`t need to practice the kissing scene. It`s just a quick little thing. And then persisted.

And he`s like, no, we really need to practice the kissing scene. OK, Al, you turn your head right, I`ll turn my head right, we got this, whatever. And he kept persisting. And I`m like, Al, this isn`t "SNL," we`re not really going to kiss, so we don`t really have to practice.

And he just kept persisting. And it just reminded me of like the Harvey Weinstein tape that you heard the girl when she was wired up for the NYPD and he`s just persistent and badgering and just relentless.

And so, I was just like, OK, fine, just so he would shut up, you know? And he just sort of came at me. And we did the line and he came at me. And before you even know it, you kind of get close and he just put his hand on the back of my head and he mashed his face against - it happened so fast and he just mashed his lips against my face and he stuck his tongue in my mouth so fast.


MELBER: That was at a press conference today. Tweeden also wrote about this in a new piece. She said that Franken basically had this skit for this show and it was a funny part for her, which she did agree to play along, and then she also posted this photo, which you can see here, writing that it was a shot of Franken essentially appearing to grope her while she was asleep. This was on a plane ride back from Afghanistan to the U.S.


TWEEDEN: It was a photo of Al doing his, you know, this on my breasts, like looking at the camera, just kind of and smirking and smiling, like, hey, look at me. And I took that as the final like, I got the last laugh.


MELBER: Senator Franken put out this statement. "The first thing I want to do is apologize," he said, "to Leeann, to everyone else who was a part of that tour, to everyone who has worked for me, to everyone I represent, and to everyone who counts on me to be an ally and supporter and champion of women." He goes on to say, "I respect women. I don`t respect men who don`t. And the fact that my own actions have given people a good reason to doubt that makes me feel ashamed." He also says, "I don`t know what was in my head when I took that picture and it doesn`t matter. There is no excuse." Now Leeann then spoke today when she was asked if she accepts that apology.


TWEEDEN: The apology, sure, yes, I accept it. Yes. I mean, people make mistakes and of course, he knew he made a mistake. So, yes, I do accept that apology. The ethics investigation, if that`s what Mitch McConnell wants to do, sure -- that`s on them. I`m not calling for that. If that`s what he wants to do, OK. That`s up to them.


MELBER: And that`s the other news today. Senator McConnell asking the Ethics Committee to review this, Chuck Schumer on the Democratic side agreeing and Senator Franken says he "will gladly cooperate with that ethics investigation." Now, we have a lot more here. Ahead, that other story I mentioned. Jared Kushner apparently received e-mails about a Russian dinner invite in 2016 and contact with WikiLeaks and people in Congress say he`s withholding that evidence. It`s a big story by any margin. Also, an explosive ethics story. Why would the Justice Department spend your tax dollars defending Donald Trump`s businesses? That`s a real question. Richard Painter has the answer. That`s ahead. (COMMERCIAL BREAK)

MELBER: -- the Russia probe, which on any other night might have been our top story. There`s a new account that Jared Kushner could be withholding evidence in the probe. Now, this issue is that key documents about WikiLeaks and Russia are not where they should be, allegedly. Senate investigators saying Kushner failed to hand them over in a new letter from Senators on the Judiciary Committee. Now, as we all know by now, there are lots of letters that fly around about Russia. But witness this tonight, something politically important about this story. It is completely bipartisan coming from the top Republican and Democrat on the Judiciary Committee. So if this is a fight over Kushner`s approach to evidence, it`s Kushner versus both partners. You see it here, the Senator citing e-mails to Kushner about WikiLeaks and documents about a backdoor overture from Russia and a dinner idea as well as communications with Sergei Millian, who is believed to be a key source in that infamous Trump dossier.

All sounds like interesting things to forget to fork over, but let`s be clear, there are two sides to every story. Kushner`s answer tonight, his lawyer Abbe Lowell who`s also the lawyer in that busy Menendez case releasing a new statement that Kushner and we have been responsive to all requests. We provided the committee with all relevant documents that had to do with Kushner`s calls, contacts, or meetings with Russians during the campaign and transition, which he says was the request, note there, there`s some wiggle room on WikiLeaks. Joining me now is Jake Maccoby, a former Adviser and Speechwriter for two attorneys general, Eric Holder as well as Loretta Lynch and Betsy Woodruff a Political Reporter for the Daily Beast tracking this. That`s a lot right just there and I understand you have been working this story as well tonight and you have some new information.

BETSY WOODRUFF, POLITICAL REPORTER, THE DAILY BEAST: Right. I`ve been making calls on this and an important thing for viewers to understand is that the two Senators on the committee, Grassley, and Feinstein, by all accounts are not pleased with Jared. This kind of letters, this kind of requests for additional information go back and forth over the course of Congressional probes frequently. I can tell you that the Mueller investigation has gone back to the White House multiple times to ask for additional detail, additional documents, more material from them. But those -- but those communications haven`t been publicized. The fact that Feinstein and Grassley took this letter, sent it not just to Jared`s lawyers, but to the entire internet, by posting it on their -- on their Web site for everyone to see is essentially having the effect of publicly shaming Jared Kushner. They`re saying if you don`t cooperate --

MELBER: Right. And Betsy, you`re making -- Betsy, you`re making the point that there`s a distinction between the normal procedural back and forth and lawyers pick up the phone and send letters sometimes and I say, I need that, I need this, let`s be clear, let`s put it in writing for those boring reasons to memorialize it. And this is different. You`re saying that when the top Republican and Democrat put Kushner and his lawyers on blast tonight, what they`re saying is, we don`t like what you`re withholding about Russia.

WOODRUFF: That`s the subtext here. The subtext is that Grassley and Feinstein are not going to be shy about twisting arms and even publicly shaming Kushner to get the material they`re looking for. I can also tell you that folk who allies of Kushner found this letter to be really surprising. This was not what they were expecting. I mean, Abbe Lowell, Kushner`s lawyer is in New Jersey right now dealing with the Mendez trial - -

MELBER: Yes. (INAUDIBLE) know it.

WOODRUFF: -- and all of a sudden this letter goes out publicly. So this is going to contribute to friction that exists between the White House and Capitol Hill, and in fact between the White House and Chuck Grassley, who`s one of the most powerful Republicans in the Senate, who Trump needs to get his judicial nominees through. So the fact that this alert is public and that they released it when they did is really significant.


JAKE MACCOBY, FORMER ADVISOR TO ATTORNEY GENERAL ERIC HOLDER: Yes, that`s definitely true. And I think part of the problem here is that while this is new information. It is part of a very familiar pattern for people who have watched Jared Kushner interact with investigators, all the way back to his initial failure to disclose information on his SF-86, for his security clearance, where he left off a series of meetings with Russian officials, a series of conversations, including his conversation in Trump Tower with Don Jr. and Manafort and a Russian lawyer.

MELBER: And yet, Jake, because you`ve worked with Holder and Lynch, you can understand the legal view here would be what Abbe Lowell is hinting at here is while we gave you what we asked for, if you didn`t ask us for our secret WikiLeaks, you know, conversation, then maybe you didn`t get it.

MACCOBY: That`s certainly one way to approach it. It`s not the way that is going to endear you to investigators or endear you to Congress. The trouble here is that Jared Kushner and others involved in this investigation have not been extremely forthcoming.

MELBER: Are you -- so you`re -- we`re out of time, but you`re saying they`re hiding evidence, not endearing.

MACCOBY: I would say in general, it`s a bad move.

MELBER: Not endearing.

MACCOBY: Not endearing.

MELBER: Wow. Well, Jake Maccoby and Betsy Woodruff on a developing story, thank you both. Ahead, have you ever wondered exactly where Donald Trump`s tax returns are kept? New details on just what the IRS does to protect them. Also, this is important, another new ethics issue to report on who is footing the bill for Trump`s personal lawsuits.


MELBER: Now we turn to a story that might seem normal by the standard of this year, but is certainly not normal, and that our founders said shouldn`t be. We`re learning about Justice Department lawyers, as well as paralegals, working on lawsuits for President Donald Trump`s private businesses because of his, "unusual, AKA, not normal decision not to divest himself from hundreds of his companies." The New York Times reporting the President has also spent -- get this -- a third of his Presidency now at the 300-day mark at Trump properties. That`s like Mar-a-Lago and the golf clubs, et cetera. So in a moment, I`m going to speak with Bush 43`s Ethics Lawyers, Richard Painter, who is also we should mention is suing Trump for accepting payments from foreign governments through his corporations. Now here is what he said August on our show about Trump`s spending.


RICHARD PAINTER, VICE-CHAIRMAN, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON: I think it`s going to destroy the Republican Party to have this type of waste of taxpayer money. We pay the taxes, we`re tired of high taxes, and we`re not paying taxes to support the Trump family. That`s not appropriate.


MELBER: With me now is the Richard Painter. Richard, the report that lawyers are working on personal businesses stems from that original decision that you have been all over, by this President, to operate his businesses. Your view of these developments?

PAINTER: Well, it`s a terrible situation for the American taxpayer. And we just saw a bill pass the House today that`s just going to stiff the middle class. We`re giving enormous amounts to the billionaires, including the President. And the problem here, with respect to his businesses, is that his business are dealing business -- doing deals with foreign governments and the companies controlled by foreign governments. That`s a violation of the Constitution. The Founders did not want foreign governments buying off American office holders. And he persists in doing this despite the requirements in the Constitution and he`s been brought to court, not just by our organization, but by members of the House and Senate and also by the Attorney General, the State of Maryland, the Attorney General of the District of Columbia.

In all three lawsuits, he`s being defended by the Justice Department lawyers at taxpayer expense. He hasn`t bothered to ask Congress for permission to accept these payments. That`s the procedure that the constitution provides for that he could get permission from Congress to receive the payments from foreign governments, the emoluments, these profits, and benefits. He refuses to do that. He would rather litigate in court at taxpayer expense against us. And we are going to have to pursue this case as far as we can, because it`s our obligation, as citizens, to make sure the President upholds the Constitution.

MELBER: And that`s a law in the Ethics which is something you and I end up talking about with some regularity. I wonder if we widen out because I know in the White House you also would address all kinds of issues where lawyers are asked to give a judgment call. Is this a good idea, even if it might technically be legal? And certainly, it appears technically legal, depending on the rules, to operate some kind of business. And yet, most other presidents have viewed the presidency as a full-time job.

A lot of Presidents, for example, have come out of the legal profession. If they wanted to operate at a law firm, it might technically be legal depending on how they did it, and I`m sure they could bill at a high hourly rate because they`re the president. No other previous president has ever thought to do that. I mean, do you think putting even the ethical debate aside, you`re in court on it, that it was a good idea for the President to maintain at this stage in his life, past the age were a lot of people would be retired, essentially a second job as President?

PAINTER: No, it`s not. It`s a terrible idea. It`s also a terrible idea not the disclose his tax returns. Every other president since Richard Nixon has disclosed his tax returns. President Trump refuses to do that. He`s spending all his time at his own golf courses, promoting his own businesses, running his businesses, owning the businesses, and they are in violation of the law when they receive payments from foreign governments. That`s very clear. They`re in violation of the law there. There are other legal problems with these businesses. He`s not focusing on the job of being President.

And when he is, he`s just tweeting about it. And he`s -- this is a situation where the American people are getting fed up. His approval ratings are rock bottom. I`m a Republican, many of my fellow Republicans are fed up, and it`s going to be a disaster, not only for the Republican Party now, but for the United States and our standing in the world, when we have a president who really doesn`t want to be President or he certainly isn`t acting like he wants to be president.

MELBER: Right, which is bizarre, unless you think that he ran on a lark and never thought he`d win and now world history is different because of it. A final thought for us to agitate on as we fit in a break. Richard Painter, as always, I appreciate your expertise, Sir.

PAINTER: Thank you.

MELBER: Next, Donald Trump famously claiming he could get away with killing someone on Fifth Avenue and still not lose voters. That was bizarre. Some Trump voters, though, say he is starting to lose them.


UNIDENTIFIED FEMALE: He had all of these big ideas and big plans and it just seems to kind of roll to something else. It`s like nothing is ever really accomplished.


MELBER: And news in the case we`ve been covering for you on THE BEAT since itself inception. That bribery case against Democratic Senator Bob Menendez. Big implications and big developments, I`m going to tell you how that case evolved today.



DONALD TRUMP, PRESIDENT OF THE UNITED STATES: In my tax plan, I`m cutting taxes so low for the middle class. But --


MELBER: Do it for the culture or as candidate Trump said, he would do it for the middle class. Economic experts today, though, questioning whether this new GOP tax bill would pass the House today, is any good for the middle class. We know it`s good for a higher earner like Trump. Now he had said it would kill him, this plan, but a new NBC analysis shows that Trump would actually save up to $1 billion. And when you`re trying to sell the middle class on a plan for the wealthy, naturally you have your Treasury Secretary and his wife in front of the cameras posing with sheets and sheets of money. Now, some Trump supporters are saying they think things are not going the way they wanted. Last night, we had cameras rolling there. This is a special focus group of voters, some of whom had backed Trump and here are the words they now use about Trump.



UNIDENTIFIED MALE: One step forward, two steps backwards.

UNIDENTIFIED MALE: Failure, embarrassing, and dangerous.

UNIDENTIFIED MALE: Mayhem, nightmare, disconnected.

UNIDENTIFIED FEMALE: Instigating, stressful and rude.

UNIDENTIFIED MALE: Un-presidential, child, and reality television.


MELBER: And wait until you hear what people who said that Trump appealed to them thought.


UNIDENTIFIED FEMALE: He`s embarrassed me by his behavior.

UNIDENTIFIED FEMALE: The tweets bother me. They may be enlightening to some people. I`m not a tweeter, but to me, it`s like -- firing out these tweets is just childish.

UNIDENTIFIED FEMALE: Nothing is ever really accomplished.


MELBER: That kind of mood is dangerous, as even Donald Trump knows considering in The Art Of The Deal, he wrote, you can`t con people, at least not for long. You can create excitement, do wonderful promotion, all kinds of press, throw in a little hyperbole, but if you don`t deliver the goods, people will eventually catch up." John Harwood is here from CNBC, a tax expert, and a Trump prognosticator. How you doing, Sir? Oh, I made a mistake. I thought we were going to John Harwood, but that`s the end of that read. Happens sometimes in live news. We cut Harwood because we had so much going on today. Up ahead, though, I want to tell you one more thing in our show, and that is my update on the mistrial in Bob Mendez`s bribery case.


MELBER: A juror today was reacting to the case against Democratic Senator Bob Mendez and they said when presented with the evidence, "that`s it?" It`s a sign that when people do arrange political bribes, they don`t tend to leave the kind of explicit evidence of a bribe that prosecutors need. It`s also a sign that the Supreme Court made it a lot harder to prosecute corruption cases with that unanimous decision against Virginia Republican Governor Bob McDonnell. Now, today, with Senator Menendez getting a mistrial, prosecutors say that just shows it is really hard to bring corruption cases. But according to Menendez` defense, it shows that the standard is still subject to abuse and targeting. After this nine-week trial and a week of deliberation, the jury was deadlocked, which got us that mistrial and Senator Menendez was emotional on the steps today.


SEN. BOB MENENDEZ (D), NEW JERSEY: I`m so blessed to have two great children. and I love you so much, I can`t -- I can`t.


MELBER: And Senator Mendez then hammered a theme that his side has long argued that whatever friendship he had with this donor, and whatever gifts he took, there was no formal bribe, he also said he was targeted. In fact, at one point, he basically said the FBI and our state can`t understand that a "Latino kid from Union City could grow up to be a U.S. Senator." Tough talk for a man who could still face another trial if the DOJ decides to retry the case. So why is Mendez so confident? Well, he got a very good sign from one juror who says this whole jury was very close to acquitting him. But in that unusual twist, she basically says that this was a mistrial because a few people were holding out deadlocked on the way to acquittal.


EVELYN ARROYO-MAULTSBY, JUROR: What I saw in the courtroom was that he was not guilty of all counts and so was Dr. Melgen. They are friends. Majority is still saying not guilty.


MELBER: So jurors may have accepted Menendez` friend defense, they were friends. And jurors may have felt hemmed in by that ruling I mentioned from the Supreme Court that narrows what corruption is. And jurors have to be fair and they have to follow the law. But the policy question remains if you can give a politician gifts and say they were just for friendship, won`t a lot of politicians collect a lot more friends like that? All right, that does it for our show tonight, I will see you back here tomorrow, 6:00 p.m. Eastern, HARDBALL STARTS NOW.



Copy: Content and programming copyright 2017 MSNBC. ALL RIGHTS RESERVED. Copyright 2017 ASC Services II Media, LLC. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of ASC Services II Media, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.