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Can the President obstruct Justice? Transcript 12/4/17 The Beat with Ari Melber

Guests: Richard Painter, Sheldon Whitehouse, Shelby Holliday, Betsy Woodruff, Burt Neuborne

Show: THE BEAT WITH ARI MELBER Date: December 4, 2017 Guest: Richard Painter, Sheldon Whitehouse, Shelby Holliday, Betsy Woodruff, Burt Neuborne

STEVE KORNACKI, MSNBC HOST, "MTP DAILY": That is it for us tonight. We`ll be back tomorrow with more "MTP Daily". And THE BEAT with Ari Melber starts right now. Good evening to you, Ari.

ARI MELBER, MSNBC HOST, THE BEAT: Steve, good evening to you. I wish you luck out there on all the games. And I`ll tell you, we`re about to do this brand-new filing I just got from Bob Mueller. So, the news never stops around here.

KORNACKI: Take it away, Ari.

MELBER: Steve, thank you very much. We begin with breaking news. Bob Mueller filing papers that we just got in our newsroom here and the approach from Bob Mueller, signed by Bob Mueller in this breaking news is a request to cancel Paul Manafort`s bail deal.

The reason, prosecutors now allege that as recently as Thursday - think of that - Thursday of last week, the day before the Flynn plea came out, they say Paul Manafort was working directly with a Russian located in Russia with ties to a Russian intelligence service.

We just got that and let me read it to you. The filing says Manafort was trying to secretly ghostwrite an op-ed to apparently defend his past work in Ukraine.

And now, this brand new, I`m reading from this new filing from Mueller, says that he was - Paul Manafort working with a longtime Russian colleague who is currently based in Russia and assessed to have ties to a Russian intelligence service.

This is a breaking story. In a moment, I`m going to speak to Sen. Sheldon Whitehouse from the Judiciary Committee on this and other items.

But I want to begin with former White House ethics chief Richard Painter. Richard, I just got this, as I know you did. Your view of what Bob Mueller is saying here in this document, which is signed by him. Not all documents are. And whether you see this as grounds to adjust Paul Manafort`s bail agreement.

RICHARD PAINTER, FORMER CHIEF ETHICS LAWYER TO PRESIDENT GEORGE W. BUSH: I certainly do see it as grounds to adjust the bail agreement and put him back in jail or house arrest.

When the judge says don`t hang out with Russian intelligence officials during your time out on bail, you obey the judge. We`re in a country - we have a rule of law here. And these people don`t seem to understand that this business of collaborating with Russian agents is serious.

It`s a serious threat to our democracy that this happened last year. The Mueller team is taking it seriously. The courts are going to take it seriously. We`ve had the attorney general joke about it at The Federalist Society dinner the other week. And now, Paul Manafort seems to think that his bail conditions aren`t serious.

So, I think it`s back to the slammer for him. And maybe, at some point, these people are going to figure out that we`re not going to tolerate people collaborating with Russian agents to destabilize our country or to cover up past crimes or anything else.

MELBER: I have to tell you, I know that folks sometimes get tired of this because we seem to constantly be saying, oh, my gosh, breaking news, so much news these days, but I will use the word, I`m flabbergasted at the allegation here in a court paper, but brand new, that Paul Manafort would as recently as late last week still be carrying on contact with an official there with alleged ties to Russian intel about public relations campaigns. Just on the basis of Paul Manafort`s self-interest, it seems odd.

For viewers, I want to read a little more from this and get your analysis, Richard, because, as you know, judges will often tell parties on both sides, by the way, not to try their cases in the press. And this new filing from Mueller tonight refers to what the judge had previously said.

And it says, at the first appearance before this court, with Manafort present, the judge admonished the parties not to try the case in the press and said, "this is a criminal trial, not a public relations campaign." And Mueller goes on to say, Manafort, through his lawyer, made statements to the press after his initial appearance and the court also gave the parties an opportunity to object to that order, which it says they did not do.

So, even if this wasn`t with a Russian, Richard, part of what Mueller is arguing here is that Manafort could be in violation just broadly of trying to do out of court arguing of a case that the judge has said should only happen in court.

PAINTER: Well, I think that`s what the judge would prefer and that`s what the best thing to do. Now, there are First Amendment rights that criminal defendants have if they want to strenuously object to the charges in the public arena. It`s awfully difficult to tell them they can`t do that under the First Amendment of the constitution.

But there`s no first amendment right to collaborate with Russian agents. And if the court tells you not to hang around with the Russians, the court means business. And I think he`s got to go back to the slammer if he doesn`t seem to get the point on that.

First Amendment right to say what he wants right here, but not to hang out with Russian agents who have been conducting, many of them, illegal activities inside the United States and he`s right in the middle of it.

MELBER: Well, I will point to your - to the point you raise, I will point viewers as well to the footnote on the second page of this. Bob Mueller saying he doesn`t want to release the underlying material that Manafort was allegedly working on with this Russian. He doesn`t want to give it an airing, but he says he`s willing to submit it under seal to the court. So, not the last that we`ve heard from this.

Richard, I`d love to have you back a little later on the show on some of these other stories.

What I want to do here is a reset for folks because we`re going to get back to this breaking news. But also, there is wider problems hitting the Trump White house on this case. We`re here on Monday, the first full work day since a former White House aide pled guilty in this probe, of course, and the White House has been in full damage control mode. Some of the damage self-inflicted.

Trump officials struggling to respond to former security advisor Mike Flynn pleading guilty to lying to the FBI. The White House now claiming this tweet post on Trump`s Twitter account, "I had to fire Gen. Flynn because he lied to VP and the FBI," was not written by the president.

Now, that new defense became essential because if the president did know that Flynn committed the crime of lying to the FBI as that tweet admits, then Trump could be in more trouble for interfering with an FBI investigation into that crime.

If you hamper an investigation into a crime, you have exposure for obstruction.


UNIDENTIFIED FEMALE: Did his own tweet over the weekend strengthen a potential obstruction of justice case against him?

UNIDENTIFIED MALE: There is a credible case of obstruction of justice.

UNIDENTIFIED FEMALE: That`s obstruction of justice.


MELBER: Faced with that kind of pressure from the weekend, the White House now saying this apparent rookie mistake in the tweet was made by an experienced criminal lawyer. Trump`s counsel John Dowd says he wrote the tweet.

Now, I know what you`re thinking. This could be a huge break. Donald Trump`s tweets are a huge part of his style and his controversy, but the White House suggesting this 76-year-old former prosecutor could be the hidden ghost writer behind Trump`s brash tweets, that it`s all John Dowd, and maybe Dowd is the Ted Sorensen to Trump`s JFK or maybe he`s the Robert Hunter to Trump`s Jerry Garcia.

Is that what`s been going on all this time? Spoiler. No.

Because according to the White House defense here, which I`m obligated to report on what they say, and then we`ll fact-check some of it, the defense is this one tweet that got Trump in so much trouble and was so legally counterproductive is the one time Dowd ever tweeted for the president.

Asked how many times he`s done it, he says one and my last, and adds I`m out of the tweeting business. So brief it was.

Now, this would suggest that Donald Trump gets in trouble for another tweet down the road, it won`t be John Dowd`s ghost-writing. Dowd says he drafted this tweet and sent it to Trump`s staffer to post online.

All right. And then, reporters asked, as we often do for verification, we said, well, is there e-mail, NBC News, asked or a record to show that Dowd actually drafted the tweet?

And then, he said, he dictated it to his staffer.


UNIDENTIFIED MALE: Does that happen a lot, where other people tweet for the president?

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: Yes - well, yes. In terms of the lawyers, the lawyers are the ones that understand how to put those tweets together. I was with the president on Saturday all day frankly.

And I know that what Mr. Dowd says is correct. That he says is that he put it together and sent it to our director of social media.


MELBER: There you have it. And Bob Mueller can actually find out if this is what happened because he can subpoena digital and phone records to see who was in touch when a tweet that appeared to admit someone knew about a crime when that tweet went out.

Now, I will say one more thing and then I want to get to the senator, as I mentioned. This whole thing may feel very 2017 and may sound like another parsing, piffling political media debate over the authorship of a tweet. Who cares, you might ask.

But I think it`s actually more than that because the message still matters more than the medium. And the message and substance of this now-famously orphaned tweet is an admission. It is a tell. It is a statement so damning that even this president, who prides himself on never apologizing, even this president had to run from his own words, if they were his words.

With me now is Sen. Sheldon Whitehouse on the judiciary committee. Senator, your comment first on the tweet. Who wrote it? Does it matter?

SEN. SHELDON WHITEHOUSE (D), RANKING MEMBER, SENATE JUDICIARY COMMITTEE: I think it may matter. It certainly will matter if Dowd was not telling the truth, if this was a story cooked up to try to give President Trump a little cover from what might be seen as an admission.

And if that`s the case, that`s very damaging for Dowd and it is very damaging for the White House legal operation because now they seem to be in the midst of telling lies themselves in order to cover things up. And that`s not a good place for a lawyer to be.

MELBER: And, senator, does it strike you as weird that the one time this guy ever wrote a tweet is this time that the tweet was so controversial?

WHITEHOUSE: Yes, it seems pretty improbable. And from what I understand, they actually went back afterwards and confirmed that the tweet was accurate, that that was the president`s understanding.

So, they`re all over both sides of this, in addition to the oddness of it.

MELBER: Right. And, I guess, odd is - that`s what journalists and careful former prosecutors like yourself, that`s the best we can do until the evidence comes in.

WHITEHOUSE: Precisely. But as you said, Bob Mueller has all the tools to find that out.

MELBER: Right. I mean, which again, my observation is it makes it a particularly odd thing to dissemble about if one were dissembling.

I also want to get your views on the other breaking story that was the top of our broadcast because it broke so late in the day.

And again, what does it say to you that Bob Mueller is going to these lengths to potentially try to pull Manafort`s bail deal and say, again, as we`ve been reporting tonight, that Manafort was ghostwriting material to defend his political work in Ukraine as recently as Thursday and doing it with a person is who is "based in Russia and has ties to Russian intelligence services?"

WHITEHOUSE: Well, there are going to be some interesting conversations between Manafort and his lawyer because either Manafort went off on a tear without telling his lawyer and did this really slap in the face to both the court and the prosecution, which it`s not good to slap the court and the prosecution in the face when you are under indictment. So, this is a really dumb move by Manafort.

And if he did it without his lawyer`s advice, that`s going to be a pretty tough conversation with the lawyer. And if he did with his lawyer`s advice, it`s going to be a really tough conversation between the lawyer and the court.

So, this has not been a good day for Paul Manafort. And the prosecution, I think, has done exactly the responsible thing here. You just don`t mess around with a court order. You don`t mess around with what you have represented to the court you will do.

And to both go back and violate the contact with the press understanding and also go back and be in touch with Russians again, I mean, for Lord`s sake, it`s almost funny, except that it`s so bizarre.

MELBER: Right. Not funny ha-ha, but funny odd. Senator, the last thing I guess I want to ask you while I have you is, there`s so much going on, it`s easy to get distracted on to the next thing. And yet Friday, December 1 seemed like a very significant development to have a former national security advisor pleading guilty and cooperating with the Mueller probe. What do you take from that and what would you see as important to focus on going forward on these issues?

WHITEHOUSE: I`m not close to the investigation, obviously. So, I`ve got to be careful about what I say. But the two things that do come to mind. One is that Flynn was around during the Trump campaign`s efforts to remove the tough Ukraine language from the Republican Party platform.

And that could be a real quid pro quo and create all sorts of potential liabilities when that gets drilled into - if it turns out that it goes back to Russia. So, Flynn knowing about that could open that can of worms quite a lot.

Flynn also has potentially the ability to provide some evidence about the president`s state of mind when he has been involved in some activities that could be construed as obstruction of justice.

So, for instance, the president could be construed as having obstructed justice when he tweeted all those things about Comey being a liar. What you need to connect obstruction of justice to that conduct is some evidence that it was the president`s intent to influence the grand jurors and cause the grand jurors before whom Mueller or others are presenting the case that they should disbelieve Comey when he comes before them as a witness.

So, a very simple piece of evidence from Flynn could take some of these public statements that Trump has made and turn them into compelling evidence of obstruction of justice.

MELBER: Right. And you`re explaining how - the background context of that will be a key part of the legal analysis there, as any prosecutor would do.

WHITEHOUSE: Intent is the key. And if you can fill in intent, you can make what might seem to be fairly minor public statements turn into something that will support a count in an indictment.

MELBER: Got it. Sen. Whitehouse, always learn something from you. Thanks for being here.

WHITEHOUSE: Good to be with you.

MELBER: Let me turn right to Shelby Holliday from "The Wall Street Journal" and Betsy Woodruff from "The Daily Beast".

Shelby, I start with you. We have these Scooby-Doo moments where you just shake your head. Where do you want to start with everything that`s going on right now?

SHELBY HOLLIDAY, REPORTER, "THE WALL STREET JOURNAL": Well, I think going up what the senator just said, the amazing thing about all of this is that it might be impossible to connect all of those dots had the president not been tweeting and talking to the press for the past year.

I mean, he`s created this massive paper trail. And every time I talk to legal experts, that`s the one thing that blows everyone`s mind, is that he just puts it all right out there in the public, on the record.

I will say with Dowd as well. We don`t know who tweeted that, obviously, and that`s something Mueller will now look into. But he may have waived his attorney-client privilege in talking about -

MELBER: On that issue, I think he may have. On that discrete issue.

HOLLIDAY: So that opens a whole another can of worms. I mean, he just creates these problems and then they beeline towards brand-news strands of inquiry.

There`s just so much to talk about. But I would say that the president is out trying to spin this and the narrative continues to shift is also noteworthy. He`s no longer - he is saying there`s no collusion. But he is also - and his words are also saying, well, the president can`t obstruct justice.

We heard this crazy claim today.

MELBER: Which I`m going to get to.

HOLLIDAY: The narrative is shifting and it does not look good for the president.

MELBER: Betsy, as you know, there are all sorts of dreams. Reporters have dreams. There are street dreams. There are also prosecutor dreams. And Joyce Vance, who a lot of viewers may recognize as an Obama era federal prosecutor, who said Twitter is every prosecutor`s dream. Is that part of what you`re seeing in this story and what are your sources saying right now?

BETSY WOODRUFF, POLITICAL REPORTER, "THE DAILY BEAST": Two things I can tell you right at the top. First, for the record, I reached a Manafort spokesman for comment on the Miller documents that came out a little earlier. That team is officially no comment, which makes sense, given that they`re under a gag order.

Second, I spent a significant amount of time today chatting with a member of the president`s legal team. And I can tell you their defense of the president`s tweet. I`m a reporter. I`m not arguing for that defense or cosigning it. But this how they are explaining the situation.

What we can expect to hear from the president`s legal team is that - is the following. Essentially, they`re going to say Sally Yates told John McGahn, the White House counsel, that Michael Flynn misled the FBI in the same way that he misinformed Vice President Pence.

However, the president`s legal team is also going to say that until the Mueller charges came down next week, nobody from the federal law enforcement space told the president himself that Flynn actually had a legal problem under 1001, which is the federal law that bars people from deliberately lying to FBI agents.

So, that might sound like they`re splitting a hair. But that`s the place where the president`s attorneys are going to say, here is why the way the president handled this situation may not open him up to jeopardy under obstruction of justice issues.

And, additionally, of course, they`re going to argue, as they`ve argued already, that since the president is the head of the federal law enforcement, he`s the head of the executive branch, that he can`t be held guilty for obstructing justice because he can`t be held guilty for obstructing justice. That`s the argument they`ll make.

MELBER: We`re going to get there. And I know you`re hanging with us. Shelby, one more thing on the tweet - the sweet storm of who did what and who tweeted what.


MELBER: And, look, John Dowd, obviously, a big time 76-year-old Twitter user, I mean, that`s fair game. This is what another federal prosecutor said about -

HOLLIDAY: Don`t hate the player. Hate the game.

MELBER: Renato Mariotti says, look, an experienced criminal defense attorney like Dowd would know it`s proper to say Flynn pleaded guilty, not pled guilty. And it is remarkable because - and you heard Sen. Whitehouse as well, we can`t say that we know this to be false, but we just know it to look absurd.

HOLLIDAY: It looks absurd. And no lawyer would ever want their client tweeting about an open investigation, much less in these hostile ways. So, it doesn`t really square. I think that`s a great point about pleaded. That`s something we`ve heard over the past few days.

But also, this could be a major violation on Dowd`s part, ethics violation if he is lying about the situation.

MELBER: Right. Which is why there`s many things. We`ve had to scramble at the top of the show because of all the news. I`d like you both to come back if you`ll stay around.

HOLLIDAY: Of course.

MELBER: All right. See you soon. Coming up, I have breaking news as well on the Roy Moore controversy. "Washington Post" has a woman coming forward with new evidence of what she says are her contacts with Moore when she was 17 years old.


UNIDENTIFIED FEMALE: I`m very sad that he`s decided to say he doesn`t know me. I now know for sure that he is a liar.


MELBER: Also, our deep dive into the claims from Trump`s employer that you cannot be guilty of obstruction if you`re the president. I have a legal breakdown on that next.

And we`ll inside Bob Mueller`s headquarters for the first time, reporting on how he questions witnesses and why he keeps asking about Jared Kushner.

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









UNIDENTIFIED MALE: The House Judiciary Committee has just approved its first article of impeachment against President Nixon.


MELBER: A lot of breaking news tonight and we begin looking at that vote, advancing an impeachment process to get Richard Nixon, was captivating the nation in 1974 and it remains the only time an impeachment process led a president to leave office early.

Presidents Clinton and Johnson stayed in office after winning their Senate trials. Nixon resigned before there was one.

But that first article of Nixon`s impeachment is thrust back into the news today and all the breaking news because of conduct and statements by Trump`s own lawyers.

Now, it undercuts a new controversial argument from Trump lawyer John Dowd that it is legally "impossible for a president to obstruct justice."

But, in fact, that Article 1 against Nixon that you see them voting on right there, it included obstruction. Let`s repeat that historical fact which has now become news. The Democratic Congress then held that presidents can commit obstruction and it can be impeachable. The articles against Nixon said he prevented, obstructed and impeded the administration of justice.

And it was another Congress run by Republicans that held presidents can commit obstruction and alleged at that time against Bill Clinton.

So, imagine the heads spinning today as Trump`s lawyer, already in the spotlight for the whole Tweetgate thing claimed this. "The president cannot obstruct justice because he is the chief law enforcement officer of the United States."

Now, that`s not a defense saying Trump didn`t obstruct justice. It would be a blank check claiming he actually can obstruct at any time he wants because the president cannot commit that crime.

Now, I`ll tell you that argument has a terrible track record. It was most famously advanced by the only president forced from office whose impeachment articles included obstruction.


DAVID FROST, JOURNALIST: So what in a sense you are saying is that there are certain situations in the Huston Plan, or that part of it was one of them, where the president can decide that it`s in the best interest of the nation or something and do something illegal?

RICHARD NIXON, FORMER PRESIDENT OF THE UNITED STATES: Well, when the president does it, that means that it is not illegal.


MELBER: That was Nixon`s view. It was not shared by the Congress that began the process to remove him nor is it shared by our Constitution which explicitly discusses the prospect of high crimes by a president on the premise that presidents can commit high crimes. Some of the Constitution is complicated, but not that part.

Now, to be clear, none of this that I`m saying tonight is evidence that Donald Trump did commit obstruction. That is what Mueller`s investigating. He hasn`t reached a conclusion, let alone provided public evidence, which would then be tested in an adversarial process. Everyone gets a process and process matters.

But what I am reporting in this history is evidence that a president can commit obstruction, just like a president can commit other crimes and be held accountable. No court has held otherwise. So, the main place you do hear this president above the law argument is from Donald Trump`s paid lawyers or his defenders on TV.


ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: The Constitution authorizes the president to tell the director of the FBI who to investigate, who not to investigate, who to prosecute, who not to prosecute. You cannot have obstruction of justice when the president exercises his constitutional authority.

You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey.


MELBER: It can be hard to separate principles from politics. And maybe people who love Donald Trump want to believe he is now the one president who doesn`t have to follow the law.

The principles are clear, though. And for the politics, you can also find plenty of Republicans on record saying not only that a president can commit obstruction, but when that happens, it is grounds for removal from office.

UNIDENTIFIED MALE: If the president committed serious crimes, obstruction of justice by the president I think are high crimes for misdemeanors.

NEWT GINGRICH, FORMER SPEAKER OF THE HOUSE: The most systematic deliberate obstruction of justice, cover-up, an effort to avoid the truth we have ever seen in American history.

UNIDENTIFIED MALE: He`s obstructed justice and deserves to be removed from office.


MELBER: I`m joined by Burt Neuborne, a law professor at New York University, who has argued many Supreme Court cases. And back with us former public and ethics lawyer, Richard Painter.

Burt, obstruction, is it a thing a president can do?

BURT NEUBORNE, LAW PROFESSOR, NEW YORK UNIVERSITY: Of course. There are hard issues in the Constitution, but this is not one of them. No person is above the law, including the president.

And I think the president`s defenders are making a logical mistake. What they`re saying is because he`s in charge of a process that he can`t subvert it.

But, of course, you can be in charge of something and make sure that it doesn`t work properly. And that`s exactly what the obstruction of justice charge would be, if it were proved.

Now, it`s a high bar to prove it.

MELBER: High bar. Richard Painter.

PAINTER: Well, it`s quite clear that the president can obstruct justice just like anyone else. The president is not above the law. We`ve heard this from this president several times. He said he cannot - the president cannot have financial conflicts of interest. That`s wrong too. And now he says - or his lawyer is saying the president cannot commit obstruction of justice. Just flat out wrong.

That`s the way a dictatorship or a monarchy works where the king is the law and the king cannot obstruct the law because the king is the law. The last time that was applicable law in this part of the world was 1776.

We have a Constitution for a reason. And President Nixon tried that argument and out he went. And President Trump, I have to say, is much further down the road of obstruction of justice and other illegal activities than President Nixon ever went.

It is a true embarrassment to the United States Congress that the House Judiciary Committee and the Senate Judiciary Committee are not holding hearings. They`re nowhere near along the process where they ought to be.

And those arguments that Trump`s lawyers are making are just flat-out ridiculous.

MELBER: Burt, lawyering sometimes is creative. And lawyers are known to throw out a broader set of arguments than their client needs. But I wonder if you think it is a tell or a sign that a few days out from this guilty plea by the former national security adviser of the United States, Trump`s lawyers aren`t just distancing themselves from him or saying this is overzealous or the other things they`re entitled to say, but are making this very literally Nixonian and baseless claim about the Constitution?

NEUBORNE: Well, I think they`re still viewing it as a political issue. I don`t think they really see it as an issue in which he`s in jeopardy of being indicted. They may see it that way down the road as more evidence comes out.

But they are still playing this as a conversation to the American people and they think they can sell this to enough people out there to say, what is this a big deal about, of course, he can`t be guilty. And then, they`ll get on and they`ll start thinking about something else and they won`t pay attention.

But it`s very important to realize that he can be guilty, that this is a diversionary tactic -

MELBER: Do you think it is a tell that they believe Flynn may know or say things that relate to the obstruction charge?

NEUBORNE: Of course. They`re in a position now where Flynn has flipped, not only has he flipped. He may have flipped in anger, not in fear, in anger. He devoted himself to Trump and Trump cut him loose, wouldn`t pay legal fees, wouldn`t promise him a pardon, wouldn`t protect his kid. And so now, Flynn has flipped. And I think both the White House and the President`s lawyers are very nervous about what an angry man can say in a situation like that.

MELBER: Wow. Burt Neuborne and Richard Painter, thank you, both. Interesting stuff. Up next as promised, we go inside Bob Mueller`s actual interview rooms. Witnesses now speaking about why they asked so many questions about Jared Kushner and Mueller`s "sphinx-like presence during some of the grilling. And there`s news coming into our newsroom on the day Trump calls Roy Moore and endorses him. This is new evidence from an accuser from when she was 17. That video ahead.


MELBER: -- telling moment. This was the first thing Donald Trump said this morning.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Hillary Clinton lied many times to the FBI, nothing happened to her. Flynn lied and they destroyed his life. I think it`s a shame.


MELBER: Note the two attacks packed in there. On Clinton who by the way was not found to have lied to authorities, but also on the FBI. Because under Trump`s basically conspiracy theory here, FBI agents would be targeting Flynn and not Clinton, building on his unusual tack this weekend that FBI`s reputation in tatters which faced rebuttals from top law enforcement veterans like Sally Yates, Eric Holder, even Jim Comey himself, as well as the association representing FBI agents which said the sitting President is being a liar. The statement reads, FBI agents dedicated to their mission, suggesting otherwise, simply false. The context here is blatant. The President picking a fight with the agents who are of course hot on the trail of his aides. The Mueller investigation has breached the White House for the first time and at a faster rate than any modern presidential investigation.

Here at THE BEAT, we checked that when it comes to indictments or plea deals of top aides, in the last eight presidencies, no administration has seen a top aide indicted for pleading to felony in first year. So Trump`s breaking a record here. Flynn`s plea deal means that in under a year, Trump`s White House now has more felonies than Obama`s eight years because, in that time, no top aide was ever indicted for felony. With me now is Frank Figliuzzi, a former Assistant Director for Counter Intel at FBI and James Melendres, a former Federal Prosecutor and Counsel to the Assistant Attorney General. Frank, I don`t want to start by asking you the, you know, obvious bait question of all, Donald Trump is attacking the FBI, what`s your response. I want you to put this in larger context for us of how the White House and President`s responses seem to suggest that perhaps the FBI really is on to something.

FRANK FIGLIUZZI, FORMER ASSISTANT FBI DIRECTOR FOR COUNTERINTELLIGENCE: Yes, I think that`s exactly the larger issue here. You know, it was -- it was Carl Sandburg who once said, when the facts are against you, argue the law, when the law is against you, argue the facts, when the facts and law are against you, pound the table and yell loudly. And President Trump is now yelling loudly at the FBI. But it`s America`s FBI, it`s America`s Department of Justice. We`ve heard a lot about Russia`s desire to cause us to question our system of laws and our agencies. We don`t need the Russians to do that when President of the United States is actually doing it himself.

MELBER: Yes. And Frank, there`s paranoia here. Politico --excuse me -- James, is what I want to -- you know, I want to be fair. James though, the White House paranoia in Politico prompting anxiety, those people could be wearing wires to secretly tape record conversations. And again I always like to be clear here on the news. I`m not citing that because of any indication that people are wearing wires. There`s a lot of reasons as you guys both know why Bob Mueller probably isn`t doing that willy-nilly. But what does it tell you about the state of mind in the White House that folks are talking to Politico about that?

JAMES MELENDRES, FORMER FEDERAL PROSECUTOR: Yes, Ari, I think that that reflects the progress the Special Counsel has made in addition to money laundering indictments against Paul Manafort and his assistant, Robert Gates as you well know. Special Counsel has secured two separate guilty pleas against George Papadopoulos and most recently Mike Flynn. Both of those guilty pleas include plea agreements with cooperation clauses. And so, I`m sure that that fact is not lost on those folks inside and outside of the administration who may be approached by the Special Counsel.

MELBER: And James, as former prosecutor, when was the last time that you were working on you know, money laundering, Foreign Agents Registration Act, you know, Russian/Ukraine case and your indicted individual was caught making you know, outreach to someone linked to Russian Intel?

MELENDRES: I never had that opportunity but will say as former prosecutor that that presents really an opportunity for the Special Counsel to put that evidence and information before the judge at early stage in the proceedings. And you know, I can imagine that it will -- if anything will give the prosecution team a leg up in that -- in that matter.

MELBER: Frank, isn`t it incredibly negative for Paul Manafort and what do you think is the story here?

FIGLIUZZI: I just read Bob Mueller`s filing with the court today to get -- to get Manafort back under house arrest. And here`s what struck me. It`s the phrase that Manafort was dealing -- is dealing with a long-time associate who is -- who is affiliated with the Russian intelligence service. So this isn`t some new thing. We`re back to realizing that Manafort was in bed with the Russian intelligence service and has been for some time. It`s really troubling.

MELBER: Yes. I mean, you`re referencing this point again on page two. And I don`t mean to be deep in the docs but you said it, Frank, Manafort worked on the draft with a "long-time Russian colleague of Manafort who is currently in Russia and has ties to Russian intelligence service." You can`t make it up. And when we get the response from Manafort we`ll reporting on that as well. Frank Figliuzzi and James Melendres, thank you, both. Ahead, the witnesses who face Robert Mueller`s investigations described grillings all day. Special Counsel entering the room like a "sphinx." I have a former top staffer to both Mueller and Jim Comey at FBI next.


MELBER: Here`s a real question. Do you ever wonder what it is like when Bob Mueller who is a DOJ employee, might run into his own colleagues at Trump`s DOJ, the very people he`s investigating? Does he do small talk with Rod Rosenstein who is overseeing the Mueller probe and is also a witness in it because Rosenstein famously huddled with Trump about firing Comey for reasons that ultimately contradicted what Trump said on live T.V. which then led to Rosenstein appointing Mueller? Well, Bob Mueller actually ensures the only run-ins happen when he wants them to happen. He works out of a very discreet building in a different neighborhood than the actual main justice. It has secure of course but it also has careful protections for classified information.

If you`ve heard the term with all the news lately about a SCIF, a Sensitive Compartmented Information Facility, well, that`s what Mueller has. But what`s it like in there? Very few people get to know. But the Washington Post just did anonymous reporting that got a lot of quotes from people, about two dozen have been in the Mueller room. Trump aides facing those investigators and they say witnesses seated in a windowless conference room where two- and three-person teams of FBI agents and prosecutors rotate in and Mueller`s agents spending up to eight hours with one witness and Mueller himself will enter at times, a sphinx-like presence who sits quietly along the wall.

Now, that`s a peek into the process. What about the interviews? Well, the Post reports that Mueller`s teams keen interest is how foreign government officials and their emissaries contacted Trump officials and the actions and interplay of Flynn and Kushner as well as prosecutors asking whether Flynn recommended specific foreign policy meetings to aides including Kushner and how foreign officials got on Kushner`s calendar and those discussions that Flynn and Kushner about those encounters. Mueller is known to be aggressive. He might also look at another Trump adviser K.T. McFarland because the New York Times just reported that on the day President Obama announced those sanctions against Russia, McFarland e- mailed and what she thought wouldn`t be read, a note to a colleague saying, "The sanctions could make it harder for Trump to ease tensions with Russia which has just thrown the USA election to him."

Times points out it`s not clear if McFarland was literally saying the election was thrown or if as Trump aides suggests, she was sort of paraphrasing a democratic argument. I`m joined by Chuck Rosenberg. He was Counselor to then-FBI Director Bob Mueller in 2002 and 2003. He also worked with Jim Comey at FBI and is an MSNBC Contributor, and he recently left the Trump administration where he had been Acting DEA Head as well as rejoining us the Daily Beast`s Betsy Woodruff who`s been all over the Russian story and has reported on the Mueller team and their approach to these interviews. Chuck, based on all of that reporting, what does that tell you about the Bob Mueller you know?

CHUCK ROSENBERG, MSNBC CONTRIBUTOR: Well, I smiled to myself Ari, when you talked about small talk and Bob Mueller. I remember interviewing with Director Mueller back in `02 when I joined him at the FBI. And rounding up Ari, my interview with him lasted about 30 seconds. So there`s not a lot of small talk with Bob Mueller.

MELBER: All business.

ROSENBERG: All business all the time.

MELBER: Betsy.

BETSY WOODRUFF, POLITICAL REPORTER, DAILY BEAST: One thing I can add beyond the Post`s reporting is that at least one member of Mueller`s team actually has been to Main Justice since the probe was put together. I bumped into Andy Weissmann, he`s one of Mueller`s top deputies and has overseen a lot of the Manafort portion of the investigation at Main Justice about two months ago. You`ll be disappointed to hear, he didn`t give me any hot scoops on what they were up to. But we do know that there`s been a tiny bit of back and forth between the SCIF in Southwest D.C. and Main Justice itself. That said, of course, Mueller is always described as sphinx-like, and I think in terms of his demeanor, I certainly couldn`t take issue with anything than the Post report.

MELBER: Right. And it suggests Chuck a very careful process with people who are very specialized finding these facts. I wonder if you can put that in the context of the questions about Kushner because in fairness sometimes people are central because they were always there. You know, you could have a secretary or an assistant who gets wrapped up in a lot of issues but isn`t ultimately seen as the driver of the potential conspiracy. And other times you have people who are of special interest because they are reviewing whether that`s a co-conspirator. What do you think Jared Kushner`s team which has already met with Mueller once confirmed is thinking when they see an article that they keep asking other people about Jared?

ROSENBERG: Well, it`s not pleasant read for them Ari. And I imagine each witness is going to be asked lots and lots of questions about Kushner but also everyone else that they may have encountered. And here`s what`s going to happen in an investigation like this. They`re going to talk to -- they`re going to talk to David, David is going to tell them about Brandon and about Matt -- just making up names here -- and it`s going to lead them to talk to others who talked to others who point to witnesses who point the documents who circle back to witnesses they`ve talked to before. So this is an iterative process. If I were representing Mr. Kushner, I would tell him to sort of prepare for the long haul. It`s going to be efficient but not going to be fast.

MELBER: And Kushner has a law degree. Do you think that figures into how they view him as sophisticated actor who knows or ought to know?

ROSENBERG: Well, he`s clearly a sophisticated actor. He`s new to this real, he`s new to this world but he`s clearly sophisticated fellow. He`s articulate, he`s well-educated, he`s -- you know, he`s been around in other environments where you know, folks watch closely what you do. So he`s got to know he`s under the gun. And I`ll tell you this Ari, and this is my experience not just with Bob Mueller but with the number of people on his team. They are exceedingly professional, exceedingly thorough, they`re not going to miss a thing.

MELBER: Right. And that`s why all the questions adding up are certainly tantalizing although we don`t know yet where they lead.

ROSENBERG: That`s right.

MELBER: Betsy Woodruff who started the hour with us, thank you for your multiple appearances. Chuck Rosenberg former Prosecutor and former DEA Chief, thank you for being here. Coming up, the new details I mentioned from this young -- woman who was young when she dated Roy Moore. She said she had relationship with Roy Moore when she was a teenager and she has new evidence. We`re going to show you that next.



ROY MOORE, GOP SENATE CANDIDATE, ALABAMA: -- and I do not know any of these women, did not date any of these women and did not engage in any sexual misconduct with anyone.


MELBER: That was Roy Moore`s denial. But tonight new reporting from the Washington Post. A woman coming forward with what she calls specific evidence of a relationship she says she had with Moore when she was 17 and he was 34.


DEBBIE WESSON GIBSON, DATED ROY MOORE: Happy graduation, Debbie. I wanted to give you this card myself. I know that you`ll be a success in anything you do, Roy. I`ve known Roy Moore for many years. And I met him in 1981, and we dated for a brief time. And we kissed with my consent and I`m very sad that he decided to say he doesn`t know me.


MELBER: She also says that Moore`s denials have now changed her view of his public stance on this issue.


GIBSON: I felt like this was the first thing that I`ve seen that I know personally for a fact to be a lie from his mouth. And he is spewing the lie from the pulpit of a church. He did not perpetrator sexual misconduct toward me nor have I ever claimed that but I now know for sure that he is a liar.


MELBER: You`ll note the nuance there. She is not alleging a lack of consent, rather that he, she says, is lying about her. And this news comes on the same day Donald Trump has gone farther than ever before since these allegations broke, now urging Republicans to, "elect Roy Moore." Back with me the Wall Street Journal`s Shelby Holiday. That is a distinction she`s drawing that may not resonate with a lot of people. We`ve reported on this show a lot about the age of consent --


MELBER: -- which is different in different states. But what do you think about the point that she is making, that this is lies she says?

HOLLIDAY: This is going to be really hard for Alabama voters to ignore, I think. Because not only does she have this note which echoes a similar note written in a yearbook from another woman, Moore denies knowing either of them. But she also writes in her yearbook notes about thank yous. He had given her $10 for high school graduation. She had on her commencement guest list that he attended her commencement. She goes on to say she helped him campaign later. They exchanged holiday cards. Roy Moore wanted to meet her fiance.

This is all according to the Washington Post. They had a long relationship. This wasn`t just a little fling. So her point, she wasn`t even going to come forward and in fact, she`s been threatened so much with such terrifying threats, she didn`t want to come forward. But she heard the words, she calls them lies and she said I have to speak up. I have to do this in defense of women. And it`s going to be hard for voters to ignore this because the question right now is he telling the truth or is he not. And this is just a big nail in the coffin of he is not telling the truth. It doesn`t appear that he is telling the truth.

MELBER: How do you think people will view her statement, which is basically in a way talking positively about a history with him and her --


MELBER: -- but negatively about the way that she says he`s lying now?

HOLLIDAY: Yes. I think that`s also very compelling because she respected him. And she wrote under his graduation note that she really respected him and looked up to him and he believed in her. They had a positive relationship. She didn`t have a negative experience with him. It`s just about the lies she`s now speaking out. But you know, 70 percent of Alabama Republicans don`t believe these allegations. They think Democrats are behind them. I`ve been talking to a political historian who studied voter psychology, Rick Shenkman and he says once you commit to a candidate, you`ll listen to information that affirms your view and you`ll just filter out information that doesn`t. So it will be really interesting to see how this new evidence plays into their psyche.

MELBER: Very interesting and as you put it, something that doubles back on what people want to think and see in the world. Shelby Holliday, I always appreciate your reporting and insights.

HOLLIDAY: Thanks for having me.

MELBER: We`re going fit in a quick break, and we will be right back.


MELBER: Breaking news on the tax bill. You`re looking at a live view of the House floor where Republicans currently are one vote short of proceeding to a conference committee on that Trump Tax Plan. Major problems and arm-twisting on the House floor, Republican votes still outstanding so they could rescue it, rumors of the freedom caucus making trouble for Paul Ryan. We want to get you that update before the show ends. THE BEAT is done, "HARDBALL" is up.


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