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Trump impeachment vote fails Transcrpt 12/6/17 The Beat with Ari Melber

Guests: Liz Smith, Harry Litman, Charlie Savage, Jess McIntosh

Show: THE BEAT WITH ARI MELBER Date: December 6, 2017 Guest: Liz Smith, Harry Litman, Charlie Savage, Jess McIntosh

CHUCK TODD, MSNBC HOST, "MTP DAILY": Ari, my apologies. I owe you 8 seconds.

ARI MELBER, MSNBC HOST, THE BEAT: Thank you very much, Chuck Todd.

Tonight, on our show, we're following several developing stories. New leads on the Trump money trail.

Al Franken facing calls now to resign from the most powerful Democrats in the country tonight.

The House holding a vote about the process of impeaching President Trump. We have news on that story. Unusual tonight.

And later, I have a special legal report on a key law that Bob Mueller can use potentially against Trump officials.

But we begin here with a breaking story about how Bob Mueller convinced Mike Flynn he might have had no choice, but to have pled.

Reports tonight that a whistleblower says Mike Flynn began potentially selling out the Trump administration within minutes of Donald Trump taking office.

In the archives of public corruption, this allegation would be the fastest effort to potentially sell access in American history.

Let me tell you what we're learning tonight. This is a doozy. A whistleblower, who spoke to Congress, says that exactly 11 minutes after Donald Trump was sworn in as president of the United States, Mike Flynn was texting a businessman about a plan that could enrich Flynn by pushing a Russian business project.

The accusation is that Flynn wanted to basically rip up those Russia sanctions, so he could do better and help his business friends.

Just consider how remarkable this claim is. Mike Flynn, so eager and focused on all of this, that he literally could not wait to get off the stage at the inaugural address to push it forward, according to this allegation.

And this is not just something plucked out of the blue. Let me tell you tonight, before we get to our experts, about how this all came about.

Democratic Congressman Elijah Cummings says that he received this account and then he consulted with Bob Mueller's office and he determined that believes it to be credible.

Now, Mueller's office and Flynn's attorney have not immediately responded to our requests for comment. As always, I will bring you that when we get it. But the context is, Flynn had been pushing business in partnership with Russian interests working for ACU's strategic partners all the way through June 2016.

And on Inauguration Day, when Flynn would formally assume his powers and while he was not literally working for that company anymore, the allegation is that he would then still go ahead at 12:11 pm and send out a text about his plan to shape Russia policy for these business people.

Cummings says there's evidence Flynn texted his business partner at 12:11 and this was the exact moment.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I will fight for you with every breath in my body and I will never ever let you down. America will start winning again. Winning like never before.


MELBER: Allegedly, at the very time Donald Trump promising there to put America first, Flynn texting about rolling back Russia sanctions to help business partners.

Cummings' office released this photo of Flynn during the inauguration, which they say seems to suggest he was looking at his phone.

Now, let's take a breath because this is a doozy. Why am I telling you about this? Why is this story breaking tonight five days after Flynn pleaded guilty?

Well, Congressman Cummings says that Mueller's staff asked him to keep this private until they completed "certain investigative steps."

Well, we know one of those steps seems to be Flynn flipping. If there are others, maybe interviewing people implicated in the plan or trying to get a hold of their communications and evidence, if those steps occurred, we don't know about that yet.

Karen Loeffler served as a US attorney under President Obama and has 30 years' experience with the Department of Justice. And Sophia Nelson, a former counsel to the Republicans in the House Oversight Committee. This is certainly an oversight issue. Welcome to you both.

Karen, this is an allegation, but it is one that has gone through some process because Cummings says he reviewed it and he spoke to the special counsel about it.

If the special counsel got back to Cummings and said, well, there is nothing to this, we probably wouldn't be seeing this out in public today.

KAREN LOEFFLER, FORMER US ATTORNEY UNDER PRESIDENT OBAMA: Well, I'm sure that's the case. Again, it's speculation. But the way things work, when the special counsel spoke to Mr. Flynn about possibly pleading, they would have taken a proper first.

What information did Mr. Flynn have? And they would have corroborated before making the deal that they made. Again, I don't know the facts of it. And Mr. Mueller has been very careful about keeping them appropriately secret.

But that's what - that would have been the process before the plea. So, I would assume that the request to keep it quiet until they were done with their processes, making sure that they had access to all the information they needed before the public could find out about this.

MELBER: Karen, as you know, corruption cases can be hard to win even when you have a strong evidence of people potentially helping other people. And that's because it has to be a true and total quid pro quo.

We don't know enough yet about the whole story, as you mentioned, and yet the fact that there is an allegation of a text literally sent from during the inauguration that Mike Flynn is not just a random person, but someone who already pleaded guilty and said he lied about sanctions, sanctions being a part of this plot.

Walk us through how prosecutors would look at these types of allegations. What questions would they ask? What work would they do to figure out if they might have a corruption charge?

LOEFFLER: Well, a lot of the corruption charges go to lying. People rarely lie, especially in public office, unless there is a reason to lie. And there are forms that you have to fill out in order to get public jobs.

When you swear in a job working for the public, you work for the people of the United States. And you are required to fill out those forms honestly and truthfully for a very good reason.

So, some of the steps would be determining, tracing the links and the emails and the electronic communications to determine what was actually said and what was done. And it sounds like there is an electronic trail.

Looking back at the statements that are made, the forms that are filled out under penalty of perjury, and determining whether lies were made, and those lies are actionable.

And so, you track down whether there are knowing falsehoods, whether those falsehoods are things that matter, and this certainly matters because the public is entitled to know in the open what your contacts are and who you're serving when you're representing and being part of the United States government.

MELBER: Right. And whether, Sophia, this individual Mike Flynn was maybe interested in taking actions on behalf of the United States for his own buddies, business friends or his own enrichment, which is very different from having a policy view.

That's some of the law. You're in Washington on the politics. How is this story hitting Washington right now at a time when Donald Trump has gotten plenty of bad news this week?

SOPHIA NELSON, FORMER HOUSE GOP COMMITTEE COUNSEL: Well, a couple of things to put into context. First of all, prosecutors and special counsel are not in the habit of offering deals to people that they're investigating, i.e., in this case, Michael Flynn, unless there's somebody they want you to talk about, tell them about or help them to get.

That's the first thing that's very important because if it's just Michael Flynn doing business for Michael Flynn and looking out for Flynn's business and his buddies, then just prosecute Michael Flynn and then stand up and tell the American people, there is no there-there.

That hasn't happened. That's the most important thing to keep in mind here as this story continues to unfold, Ari.

The politics of this is that it continues to look bad that the president and his administration are under a cloud. Whether or not they colluded with Michael Flynn, whether or not he was directed to send texts like this and say, hey, guys, we got the green light, we don't know yet.

But what I want every one of your viewers to keep in mind is that, Bob Mueller, who is just an amazing man with a great reputation would not have offered a deal to anybody unless he thought that flipping that person or getting them to talk would lead him further the down to a bigger target.

And I'll leave it there because that's the way this works.

MELBER: Right. Let me play briefly, Donald Trump who has shown some restraint some of the time. He got in a lot of trouble when a tweet went out under his account, but happened to be the one and only tweet that was ever ghost-written by a lawyer. That is, as you can understand, a very plausible story.

And now today, when asked about it, he basically is trying to use discipline and not answer these questions. Take a look.


TRUMP: Thank you very much. Thank you.

UNIDENTIFIED FEMALE: Any plans to pardon Gen. Flynn, Mr. President?

TRUMP: Thank you very much.

UNIDENTIFIED FEMALE: Any plans to pardon Gen. Flynn, Mr. President?

TRUMP: Thank you.


MELBER: Thank you. Sophia, what do you make of his discipline there in the press room?

NELSON: First of all, he has no discipline. Zero discipline. And you and I both know that just because he didn't take a question doesn't mean that we're not going to see a tweet about it a little bit later.

I don't know that I believe - I was an attorney for a number of years. I worked on the hill. I don't know attorneys who are in the habit of altering tweets or Facebook posts or otherwise for their clients.

When an attorney issues a statement that he or she writes, it is under their name on behalf of the client.

MELBER: Or if it's written, it usually has some evidence of being written. I've never heard -

NELSON: Me either.

MELBER: It's like freestyling. I've never heard of a lawyer taking something about a criminal matter and only saying, oh, I dictated over the phone, I never looked at the words.

NELSON: Yes, it's crazy. It's crazy. It doesn't happen in the real world. But, again, we're not in the real world anymore.

MELBER: We're not in the real world. That's what I was trying to remember. This is all a big dream. But thankfully, I had two very talented lawyers with a lot of experience to walk us through the waking dream.

Karen Loeffler and Sophia Nelson, thank you both. Coming up -

NELSON: Thank you.

MELBER: There was a remarkable vote today on the House floor. A resolution for actually impeaching the president of the United States. We'll show you results.

Also, Don, Jr. grilled in that marathon Russia hearing. Congressman Eric Swalwell was there and he joins me live next.

And I have an exclusive legal breakdown of the key legal question. Did the Trump transition team break the Logan Act law by contacting Russia during the Obama era and why Democrats now want Al Franken out and Republicans want Roy Moore in.

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


MELBER: Russia investigators moving pretty close to President Trump. They're hitting his family and his businesses this week.

Donald Trump, Jr. was on Capitol Hill again today, behind closed doors speaking to investigators with the House Intel Committee. The interview coming as we learn more about the Trump Tower meeting.

The Russian lawyer who attended it, saying Trump, Jr. asked for dirt on the Clinton Foundation. When she didn't have it, she alleges then he seemed to lose interest.

A key question about that meeting, what did the president know? California Congressman Eric Swalwell is on that House Intel Committee and was part of this interview. Your highlights on the interview and did he address his conversations with his father, the president?

REP. ERIC SWALWELL (D), RANKING MEMBER, HOUSE INTELLIGENCE COMMITTEE: Oh, boy, Ari. I wish I could share those highlights with you. We have an agreement where we don't do that.

But I can share that Donald Trump, Jr. refused to answer any questions about conversations he had with his father when "The New York Times" had revealed the email exchange about the June 9 meeting, which is disappointing.

We don't see any privilege. Mr. Schiff, I thought, had quite effectively asked a lot of questions about that exchange.

MELBER: What was the reason Don, Jr. gave?

SWALWELL: He claimed that his attorneys were present while he spoke with his father, and so it was covered by an attorney-client privilege.

MELBER: Yes. Is he then saying those attorneys were representing both him and his father?

SWALWELL: That's right, Ari. But under that example, a defendant could bring in an alibi witness, have lawyers present, and then say that a prosecutor can never ask an alibi witness a question if a lawyer is present and they're cooking up a story together. That's not how the law works.

And now, it's really incumbent upon the Republican majority to subpoena now Donald Trump, have him come back and compel him to answer. That's something they can do and I hope they are interested enough to do that.

MELBER: Let's go the other direction, though. There certainly could be a fair argument that someone dealing with a criminal or oversight query wanted to talk to their lawyer about how to respond to it and that those conversations, under our rules, tend to be privileged.

I mean, what is your core problem with that? Or you just think they're going too broad with it? Do you think they're basically kind of faking it?

SWALWELL: I don't have any problem with an individual talking to their lawyer and that being covered. But when two individuals talk directly, I don't believe that that is covered.

As I said, if a defendant in a criminal trial calls in someone he wants to be an alibi witness and tells him directly what to say, our law does not say that the prosecutor can no longer ask that alibi witness if he ever talked with a defendant. That's not how it works.

Any conversation between a client and their lawyer, of course, is always covered. I don't think two clients talking directly to each other is covered by a privilege.

MELBER: All right. Well, we went deeper on attorney-client privilege than I thought we would.

SWALWELL: I know. Everyone should get law school credit for that one.

MELBER: Continuing legal education credit. (INAUDIBLE). Congressman Eric Swalwell, always appreciate your time. Hope to see you again.

I want to turn now to Dorian Warren, who is the president for the Center for Community Change Action. Your response to what we were just hearing.

DORIAN WARREN, PRESIDENT, CENTER FOR COMMUNITY CHANGE ACTION: Well, I'm not a lawyer, Ari, but I just learned a lot there as well.

And there is the difference, you would know better than anyone, between collusion and conspiracy.

MELBER: Right.

WARREN: Right? So, there is clearly some evidence of collusion. This is part of a pattern of the Trump administration, and especially of those closest to the president. It's deny, then lie, and then possibly cry.

We know about the denials. We know about the lies, frankly. People have been using different terminology. Oh, I misspoke or this or that.

Remember the first story about this meeting was about adoptions.

MELBER: Right.

WARREN: Right? And then it changed. Then it became something else, right? And now, we have the evidence to suggest that there was possibly something of value that Donald Trump, Jr. thought might be exchanged in the meeting. That being some dirt on Hillary Clinton.

MELBER: And that's where you don't need a lawyer. You just say, hold on, were you having a conversation about policy and adoption, which, by the way, is no biggy, if that were true? Or were you asking for things from foreigners who had written to you that they had things to give you? As you said, that zeroes in on it.

I'm moving this along because it's not just Russia. I want to get to another top story with you tonight. The US House considering the impeachment of the president of the United States.

I will repeat that. The House of Representatives actually voted on a resolution to begin impeaching a president. This is a rare action. It was led by Democratic Congressman Al Green.

REP. AL GREEN (D), TEXAS: On November 29, 2017, Donald John Trump shared three videos posted by a leader of a British political party, considered by many to be an extremist group.

Donald John Trump, by causing such harm to society, to the society of the United States, is unfit to be president, warrants impeachment, trial, and removal from office.


MELBER: Just the fact that he was making that argument is rare. This is the first time that the House floor has had an impeachment resolution since 2008 when there was a House vote on a resolution to impeach then President George W. Bush.

And it raises two points here. First, the very fact that this is now part of a legitimate debate for some House Democrats shows the severity of their concern about Trump's fitness for office.

But, second, that view we can see today with the count is now clearly minority of House Democrats. It was about 30 percent of them who backed this resolution, while the party leaders said now is not the time to consider impeachment.

Which shows any caucus for impeachment is small and that resolution today was tabled.


UNIDENTIFIED MALE: On this vote, the yeas are 364. The nays are 58, with 4 voting present. The motion is adopted without objection. The motion to reconsider is laid on the table.


MELBER: Dorian, there is so much going on. I wouldn't be surprised if people are hearing about this for the first time, although it is a big thing. Your analysis of that final point, though, that this is now only a third of House Democrats.

WARREN: This is only a third of House Democrats. So, I think you're right to suggest, Ari, that it's a very - it's a small minority. And I think, in 2018, that number will grow.

I think the number to watch is the number of House Republicans because the difference between now and, say, 1973, 1974 was that you had some Republicans then who had a conscience. Think Sen. Jeff Flake now, right, who said country over party.

I want to know, in 2018, will there be a growing number of Republicans in the House that have a growing conscience around what potentially could be crimes or impeachable offenses for President Trump. That's the key number to watch. Not necessarily just the Democratic number.

MELBER: Right. As you say, that number and also whether this is a process that would follow the facts, or whether you're just sort of doing an endless whip count on something.

WARREN: A symbolic - right.

MELBER: If impeachment is supposed to be about facts and evidence, they don't have it all in yet. I think that's fair to observe.

Dorian Warren, as always, appreciate your insights.

WARREN: Thanks, Ari.

WARREN: Up ahead, Mike Flynn accused of selling access to Trump literally minutes into the presidency. And I have a special report tonight on why it can be a crime to undermine the government's position even during transition.

Also, Bob Mueller following that money trail. There's a new report on what exactly the special counsel wants from that bank, which has so much of Trump's debt and how a Russian state bank is also under scrutiny.

You're watch THE BEAT on MSNBC.


MELBER: The two most pivotal people overseeing the Russia probe rarely talk about it. Bob Mueller hasn't talked since he became special counsel and is not expected to.

And the deputy attorney general who tapped him for the job, Rod Rosenstein, also rarely discusses it. So, it's striking to see him today with his first public comments since Mike Flynn's guilty plea.

Some conservatives have been slamming Mueller. Rosenstein, though, says while I can't discuss a probe, he is satisfied with Mueller.


UNIDENTIFIED MALE: Are you satisfied with what you've seen so far from the office of special counsel?

ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL OF THE UNITED STATES: Yes. When we conduct criminal investigations, as you know, just as true in Maryland, we don't talk about the investigations while they're ongoing.

So, what the American people will see is only if and when a case is charged. And there are several cases that have been charged to date. And we're not in position to talk about anything else that may be going on.


MELBER: And that is the right answer. Prosecutors don't talk. But their witnesses can. And some are telling reporters about new subpoenas from Mueller for finance records linked to Trump.

Deutsche Bank reportedly already turned them over. And the question is whether Trump got Kremlin financing that could compromise him.

And that's not all. "Reuters" now reporting on another question with national security implications. You can buy just about anything on the global markets these days and you can buy debt.

So, the question is what if the Kremlin banks bought Trump's debt from the bank to get leverage over him? Not a hypothetical. There's reporting here that an official says Mueller wants the records to see "whether Deutsche Bank may have sold some of Trump's mortgage or other loans to Russian state development bank VEB or other Russian banks that are under US and EU sanctions."

That's basically a reference to whether Putin's controlled bank would own Donald Trump. Not the first time this issue has come up.

Congressman Eric Swalwell, who I was just speaking with, raised this very loan with Jim Comey in March.


SWALWELL: I want to ask you, director, if you're familiar with Deutsche Bank and its $300 million loan to Donald Trump and his organization.

JIM COMEY, FORMER DIRECTOR OF THE FBI: That's not something I'm going to comment on.

SWALWELL: So, an individual's association with the bank that has had dealings with Russian money laundering, that would be something that would be a red flag for a counterintelligence investigation, I would assume?

COMEY: That's a hypo. I don't want to answer.


MELBER: With me now is Bill Cohan. He's worked at three of the largest banks on Wall Street. His most recent book is "Why Wall Street Matters".

He is someone - Bill, you're someone who understands how to - I don't know how you buy debt. Debt doesn't seem like something most people would want to buy. And yet, what does it mean financially that Mueller is looking at this?

BILL COHAN, AUTHOR, "WHY WALL STREET MATTERS": Look, if this is true, if this "Reuters" report is true and that a Russian bank has bought Donald Trump's debt, that is big news. That is huge news.

Because that gives a Russian bank leverage over Donald Trump. Direct leverage.

MELBER: And then, they literally own him.

COHAN: Literally, Donald Trump owes a Russian bank, which has not been disclosed on any of his financial disclosure forms.

Now, obviously, it may not have been a loan that was issued by a Russian bank to him, although I've often suspected maybe there are some of those too. But if he was issued by Deutsche Bank to him, and we know that Deutsche Bank is his biggest lender, his lender of last resort -

MELBER: Because I don't know how this stuff works.

COHAN: Sure.

MELBER: Then if Deutsche Bank sells somebody's debt, do they have to tell the person we sold your debt?

COHAN: No. They don't have to tell them. No, they don't have to tell them. I mean, it depends on sort of the rules of the road for individual pieces of debt.

But often, debt gets changed hands and winds up in the hands of people that the borrower doesn't even know. They find out eventually, especially if something goes wrong.

MELBER: Eventually, right. Because if somebody comes around and says -

COHAN: You owe me X millions of dollars in interest payments, either where are they or where do I send them?

MELBER: And so, in fairness to them, you could say, well, you could end up in this pickle without wanting to be in the pickle.

But then there's prior reporting that, in 2014, Eric Trump said allegedly, "We don't rely on American banks. We have all the funding we need out of Russia."

COHAN: Right. And I think Donald Trump, Jr. also said something similar to that as well. Donald, Sr., of course, has never said that he's gotten any money from Russia banks. It was never on any of his financial disclosure forms. I've often wondered about that.

We know that Deutsche Bank is the only bank basically that will lend him money. And now, if they're on selling his debt to a Russian bank, well, that is a stunning development. That gives them direct leverage over Donald Trump.

MELBER: Sometimes I wonder if this is a really big complex mystery or if it's all kind of - all right here in front of us.

COHAN: There is a reason, Ari, and I think we've talked about this before that Donald Trump bends over backwards to be nice to Mr. Putin and Russia.

I mean, he's meaner to the American people and to our allies than he is to the Russians.

MELBER: Bill Cohan, thank you for being here. As always, appreciate it.

Up next, there is some breaking news on the growing calls from Democrat senators for Al Franken to resign. I have a top Democrat here to discuss.

And later, my exclusive report on the Trump team's negotiations with the Kremlin during the transition and what federal laws are implicated.


ARI MELBER, MSNBC HOST: Other breaking news, tonight the top Democrat in Washington now calling on Democrat Al Franken to resign over allegations of groping and sexual misconduct. Chuck Schumer's statement tonight comes 13 women in the Democrat Senate Caucus, that's over two-thirds of the women in the U.S. Senate called for Franken's resignation today.


UNIDENTIFIED FEMALE: Senators are calling for Al Franken to step down.

UNIDENTIFIED MALE: At least 12 Democratic female Senators and others have called on him to resign.

UNIDENTIFIED FEMALE: This has turned into a tidal wave among his colleagues.

UNIDENTIFIED MALE: Maggie Hassan, Claire McCaskill, Kirsten Gillibrand, Mazie Hirono, Kamala Harris and Patty Murray have all made those calls.

SEN. KIRSTEN GILLIBRAND (D), NEW YORK: There were new allegations today and enough is enough. We need to draw a line in the sand and say none of it is OK. None of it is acceptable. I do not feel that he should continue to serve.


MELBER: 16 men in the Democratic Senate Caucus also calling on Franken to resign. The push arrives on the very day Time Magazine named its 2017 person of the year. The silence breakers, (INAUDIBLE) women speaking out and taking action about sexual harassment and assault. Times person of the year is known to capture the national mood, whether it goes to a person like Obama in 2008 or a movement like the protesters of occupy and Arab spring back in 2011. I'm joined by Liz Smith, a Democratic Strategist, former Deputy Campaign Manager for Martin O'Malley. What does this mean for Al Franken and the Democrats today?

LIZ SMITH, DEMOCRATIC STRATEGIST: Well, look, I think Al Franken is toast and everyone is expecting him to step down tomorrow. But the way that Democrats responded to this, it was not good enough. And frankly, it's offensive to women. You know, Democrats proclaim to be the party of women. We proclaim to be the party that stands up and believes women but it took not one, not three, not five, but seven women to come forward against Al Franken for us to believe them. And this is -- the thing is we can't only believe women when they're accusing Republican men of sexual misconduct. And we need to have one standard and apply it to ourselves.

And just a little bit separately is that I really thought that this was a case of political malpractice. We have a lot of important things going on right now. We have a big race in Alabama. We have a big debate over tax reform. Things that affect millions and millions of people and Democrats are twisting in the wind. And instead of standing up for regular people who are -- the millions of people who are affected by these things, we're standing up for you know, these sexual predators in Congress. It's wrong and we need to do better going forward.

MELBER: And what are you hearing from your former colleagues, campaigns, congressional offices about where the Democrats go on this? What's next?

SMITH: Doing better, putting some action behind the talk of zero tolerance. And I think that especially younger people, younger people in the party were really disappointed in how leadership reacted to this. And look, you talked about the Democratic Senate -- the Democratic Women Senators coming forward. The people who actually led on this issue were the next generation women in Congress people, people like Kathleen Rice, people like Congresswoman Jayapal whose name I'm sure I just butchered, but they were the first person to come out and they showed real courage. I mean, even Seth Moulton, a young Congressman from Massachusetts yesterday was unequivocal about that. And those are the people who I think showed more leadership than anyone in the U.S. Senate did today.

MELBER: Liz Smith, thank you very much for being here on the story.

SMITH: Thank you.

MELBER: After the break, I mentioned this exclusive reporting we have on Michael Flynn's dealing with the Kremlin during the transition and the deep dive of the laws that are implicated. And later, why Donald Trump wants Roy Moore in and the new raptures it's causing with the GOP.


MELBER: Tonight a new allegation has add even more intrigue in this case against Mike Flynn. A whistleblower telling Congress that Flynn began selling access to the Trump administration on the first day on the job. That allegation important because it suggests that Flynn's well-documented push to undermine U.S. sanctions against Russia could have also been an effort to help himself or his friends, not America, and that can always make your legal problems worse. Now, we have been working here for some time on a special report tonight about how a federal law, the Logan Act could apply in the Trump Era. And that was before this avalanche of headlines today about Mike Flynn having this other reason for spiking sanction against Russia. So it's an up time to look at the Logan Act and why some of the White House's arguments might not help Flynn that much. We may be hearing a lot more about this 200-year-old law.


SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: I don't think it's wrong for a transition person to talk to a foreign government about change in policy. I don't think the Logan Act is worth the paper it was written on.

UNIDENTIFIED MALE: It is the constitutional right even for a presidency in its final days to conduct the foreign policy of the United States without interference. And people said the Logan Act is 218 years old. It's still a law on the books.

UNIDENTIFIED MALE: A lot of the focus has been on this Logan Act and about the incoming administration and the Trump team in transition reaching out to foreign governments.


MELBER: The Logan Act is an old law that boils down to one word, unauthorized. It makes it a crime to hold unauthorized negotiations or discussions with other countries. And in his plea, Mike Flynn admitted to talking to Russia about undercutting the U.S. sanctions and prosecutors could potentially argued that unauthorized outreach was crime under the Logan Act, it depends on the details. Now let's be clear. The U.S. has only prosecuted two people for this kind of crime. Neither was convicted. And Trump allies say that sparse record makes any prosecution here a stretch. Trump's lawyers arguing the act, certainly does not apply to a presidential transition team because they're government employees heading into office. But that itself is actually widely debated. President Reagan, leading GOP voice on foreign policy argued for a broader application of the Logan Act, a point he made when slamming Reverend Jesse Jackson's 1984 trip to lobby Cuban officials.


RONALD REAGAN, FORMER PRESIDENT OF THE UNITED STATES: There is a law, the Logan Act with regard to unauthorized personnel, civilians, simply going to or citizens to other countries and in effect negotiating with foreign governments.

JESSE JACKSON, CIVIL RIGHTS ACTIVIST: Nothing legal has been challenged. Something moral has been challenged.


MELBER: Now that particular debate never played out in court. Unlike Flynn, Jackson was also just purely a private citizen. But a few years later, the Reagan administration was back at it suggesting a government official, the Speaker of the House should stop private meetings that undermined U.S. negotiations abroad.


UNIDENTIFIED MALE: The Reagan administration was highly annoyed over the private meetings --

JIM WRIGHT, FORMER SPEAKER OF THE HOUSE: Tom Brokaw, I don't have to get the approval of anybody except the people. I work for the people. I work for the United States. And in this instance, I like to think I make some small contribution toward peace.


MELBER: That was the House Speaker defending against this, Reagan and other Republicans saying his active resistance in Nicaragua was a violation of the Logan Act. Now that's how some Republicans have previously viewed the Logan Act, a law that at least could apply to government officials. Others have invoked the law back when the words President Trump were more of a punchline than a daily salutation. President Obama was making the Iran deal and Republicans set an open letter against it to Iran. People thought that might have undercut the deal by warning that it wouldn't hold on the future, sparking discussions about whether being pen pals with Iran could also lead to charges.


CHRIS MATTHEWS, MSNBC HOST: Again I wonder if these 47 Senators gave thought to what they were doing here. Then again as I said in the beginning of the show, they did know exactly what they were doing. They were trying to undermine the work of an American President by, first of all, disrespecting him even if they don't get charged and imprisoned for it. What they've done here is craven.


MELBER: By the time Donald Trump asked Russia to hack Clinton's e-mails, the top Democrat on the Homeland Security Committee was saying Trump should be investigated for violating the Logan Act.


SEN. CLAIRE MCCASKILL (D), MISSOURI: The notion he would invite a foreign nation to conduct an attack against our country is just beyond the pale and I believe it violates the Logan Act and I think he should be investigated for that.


MELBER: Now, that investigation did not occur but the filing that Bob Mueller made against Flynn does read like a nightmare for several unnamed staffers who are referred to as presidential transition official, senior members of the transition team, very senior member. Now news reports have identified some of those people but only Mueller really knows who he is referring to. And do they face Logan Act exposure? Here's the bottom line from our reporting and what we've seen. Number one, the Logan Act is rarely prosecuted but it can apply to unauthorized diplomacy. Number two, if you have a case, it could be stronger if the diplomacy undercuts the policy of the U.S. defined by the president at the time.

And as a matter of both law and physics, there's one president at a time. Mike Flynn was doing Russian outreach during Obama's presidency. A third takeaway here, Bob Mueller is willing to assertively charge rare crimes. Before this probe started, there were only seven prosecutions for foreign lobbying violations in all of American history. Today there are nine because Bob Mueller charged both Manafort and Gates under a different, pretty obscure law. Now Mueller may have been ready to charge Flynn for this on other laws, which could explain why he pleaded guilty to a felony or maybe not. But fourth and finally, theirs is one other reason why that secret, unauthorized diplomacy was probably so rarely prosecuted in the last 200 years. Some of it must have stayed secret.

But in the past few decades, the surveillance in this country and around the world has skyrocketed. Consider that the reason we even know Flynn was talking to the Russian Ambassador is that it was recorded. The reason Paul Manafort bail deal was getting scuttled this week, well, Mueller caught him secretly talking to a Russian. And while we don't know how, several experts say surveillance would be the most likely explanation that Mueller busted Manafort again this week and so quickly. Now, if there's suddenly way more surveillance of foreign contacts, there may be more records of potentially illegal foreign contacts. And I think that brings us back to a key rule to keep in mind anytime you're tracking a criminal probe. Prosecutions are not just about crime.

Most crimes are never charged. Prosecutions are always about evidence. Does it exist? Who gets their hands on it? Mike Flynn knew he had secrets about his contacts with Russia. He just thought he could keep them as secrets. It turns out Bob Mueller could hear him and anyone on the wrong end of this Special Counsel should consider how his investigative work does fit that old classics by the romantics, I hear the secrets that you keep when you're talking in your sleep. Keep talking if you want but Bob Mueller might be listening. Joining me now, a former Federal Prosecutor Harry Litman and Charlie Savage, Pulitzer Prize Winning Journalist from the New York Times who has reported a lot of the facts in this case. Harry, how does one apply this federal law to potential unauthorized contacts?

HARRY LITMAN, FORMER FEDERAL PROSECUTOR: So the application is straightforward under the elements of the act. Flynn acted without authority, he was trying to influence foreign officials. But you've given the punch line at the beginning Ari, it's never, ever been used successfully and the trick for Mueller is whether he wants to take a risk at bringing it especially as a free-standing charge. I don't think he will bring it as a standalone charge because there's a real risk here that even if the facts and evidence are solid, that a judge will find that the law has a constitutional defense under the first amendment or void for vagueness. What does it cover, does it cover Dennis Rodman's misadventure in North Korea. Does it cover these 47 Senators? If a judge strikes down a prosecution on that basis, it will play as a Trump victory, even though it shouldn't. And I think --

MELBER: Right, and you mentioned Dennis Rodman -- you mentioned Dennis Rodman, I mean that's like the Reverend Jesse Jackson example. That's a place where we've seen other presidents including a Republican one say well, maybe it applies but it's not a court precedence. Charlie, walk us through what category Mike Flynn could fall into. Does he look like someone who was basically really eager to set up his government work which involves diplomacy or does he look like someone who in the transition and after may have been abusing a government role to do other things?

CHARLIE SAVAGE, REPORTER, NEW YORK TIMES: This is where the news that came out today that you alluded to at the beginning of the segment complicates our understanding from the outside about what Mueller may be thinking here and what the -- sort of what onion layers he's peeling back. It is possible that Mueller was thinking about or the FBI was thinking about the Logan Act when it originally questioned Michael Flynn, that was back in January before Mueller got involved of course. It could have been a predicate for a search warrant or something else even if they never intended to prosecute it for the reasons we've been talking about here.

But this news that a whistleblower has come forward to Congress and talked about a huge amount of money sloshing around with some kind of a deal involving working with Russia to build nuclear reactors across the Middle East, then Mike Flynn was, if we believe this report, very eager to move forward and was hoping the tear up the sanctions right away so that his former friends or his friends, his former business partners could move on that. As you said, that suggests an alternative explanation. Maybe his animus against the sanctions was because there was a large amount of money to be gained if they were to vanish or maybe these are not mutually exclusive and both of these explanations provide a motive for what it was he was doing when he was pushing Russia to not worry about the sanctions lasting very long and why he was -- think that he needed to lie about that to the FBI.

MELBER: And Harry, is there any other legal exposure if these accounts are right? I mean, again, we're not talking about someone who's at this point presumed innocent with regard to the Russia contacts. We're talking about someone who's literally pleaded guilty lying about it. And so when that contacts, the things that Mike Flynn was doing that if other people were in on, you think create any kind of other legal exposure. What kind of foreign policy were they setting up?

LITMAN: Yes, definitely. First, to Charlie's point, it is clear that when Yates opened the file on Flynn, it was a Logan Act violation. That's what the file said at DOJ. That was the justification for going over to the White House.

MELBER: You think that -- wait, that hasn't been publicly reported. You believe --

LITMAN: Yes it has.

MELBER: Go ahead.

LITMAN: Yes, I do think it's been publicly reported. But the much bigger --

MELBER: No, Sally Yates -- no, that is not true. Sally Yates very explicitly said under oath, I'm not going to discuss the underlying contact. She's never confirmed it as what law it was.

LITMAN: Well, in the last week, in fact, I think it has come out that it was -- you need a file, you need a reason to open. And that it was Logan. But look --

MELBER: No I'm saying -- I'm agreeing with you making an interesting point, I just don't think Sally Yates has ever publicly confirmed it as Acting Attorney General. You're saying though, there's other indications that that was the underlying contact, the idea that this rarely prosecuted thing was the thing that Flynn may have been believed to have been violated.

LITMAN: That is the predicate for looking at it as a criminal violation. But it's all I think as you say besides the point. Could there be other legal exposure? Yes. And for whom? Most importantly for the President of the United States. The bigger point is not whether there is a technical violation of the Logan Act. The bigger point here is that the Trump team during the transition and it makes it worse that it's during the transition was undertaking a covert foreign policy, not a meet and greet with foreign officials, but an actual negotiations, quid pro quo, compromise, flying completely blind, that rest at best an embarrassment and at worst a catastrophe.

It could well be -- it is up to Congress or members to decide what is a high crime or a misdemeanor. That's -- it doesn't have to be a violation of a statute. And that is exactly the kind of un-precedential conduct that someone could say is the basis for a high crime or misdemeanor. The report you gave ten minutes ago wasn't talking about statutory violations, but improper behavior. That is what Trump could be looking at as a result of this sort of scandalous rogue foreign policy they were undertaking.

MELBER: Right. As you say, there's more than one thread. That report is about the whistleblower alleging personal enrichment --

LITMAN: That's right.

MELBER: -- and there's the question of diplomacy, there's also the question of the false statements. Sometimes it's hard to keep track which is why we like to zero in on some of the laws that makes sense of it. And Harry Litman, former Federal Prosecutor has been very helpful on that as well as you Charlie Savage at The Times. Thank you, both.

LITMAN: Thank you.

SAVAGE: Thank you.

MELBER: Ahead, how Donald Trump's endorsement of Roy Moore is exposing new divides in the GOP.



BRET STEPHENS, COLUMNIST, THE NEW YORK TIMES: So until last year I voted Republican in every -- in every single election. I think I speak not only for myself but for many other people that I could never vote, ever again, for a party that is making an open endorsement of a man against whom there are credible accusations of pedophilia.


MELBER: Lifelong Republican there talking about the allegations against Roy Moore. Jess McIntosh a former Clinton Advisor and Executive Editor of Shareblue. Thank you for being here. Roy Moore is dividing Republicans even as there are indications that he's still in the running in Alabama, to say the least.

JESS MCINTOSH, EXECUTIVE EDITOR, SHAREBLUE MEDIA: Yes, absolutely. I think that this is going to have reverberation to the Republican Party long after next Tuesday, regardless of whether he wins or loses on Tuesday. I think we're seeing the exposure of the massive amounts of unprincipleness and hypocrisy that is happening in the Republican Party right now. Mitch McConnell had the gall to call on Al Franken to resign. Your party is rooting for a pedophile. I think they've lost the moral high ground of any fight that they could possibly want to wage at this point and they seem to be unaware that that's going to cost them with either their own base or the moderates that they tend to rely on especially in off years. I don't understand what this strategy could possibly be for them but I feel like it's going to turn off those voters that were already pretty squishy about the fact that the President is an admitted sexual predator. Now they have to deal with a pedophile on top of that.

MELBER: And Steve Bannon digging in here. I mean, there isn't any note of any attempt to say, well, there's legitimacy, right, there's legitimacy with an intramural party debate, quite the opposite. Here's Steve Bannon on this.


STEVE BANNON, FORMER CHIEF STRATEGIST, WHITE HOUSE: Let's talk about the Republican establishment. By the way, Mitt, while we're on the subject of Vietnam, you hid behind your religion. You went to France to be a missionary while guys were dying in rice paddies in Vietnam. Do not talk to me about honor and integrity. Jeff Flake has done nothing but run the President of the United States down since the President won. And by the way, Mitch, the tax cut won't save you. Tax cuts' OK but it's not going to save you.


MELBER: Somewhat hard to follow the thread but maybe that the ploy.

MCINTOSH: It could be. It's a new Republican Party as one of my Shareblue colleague said when the white nationalist is the second worst thing about your rally. This is Steve Bannon coming out in favor of Roy Moore. Neither one of those guys are somebody who I think most -- the vast majority of Americans want to be behind either of their banners. So the fact that this is what the National Republican Party has to offer under President Donald Trump, it's just about as gross as it gets, frankly.

MELBER: And so politically -- we're talking about the ethics of it -- and politically, do Democrats use that if Roy Moore becomes a national face of the party.

MCINTOSH: Absolutely. I mean, forever. The Republican Party will have been the party that rooted to seat a pedophile. That doesn't go away. The RNC is funding him. The leadership in the Senate has called -- has endorsed him. President has endorsed him. There's no getting around that.

MELBER: Yes -- no -- yes, you put it well.

MCINTOSH: It's really just that simple.

MELBER: Jess McIntosh, thank you very much for being here. And that is our story on Roy Moore today. That does it for a busy hour. I will see you back here at 6:00 p.m. Eastern tomorrow. And that is it. You can always find us on Facebook @THEBEATWITHARI.COM/ -- yes, @THEBEATWITHARI.COM period, no slash. That's it, "HARDBALL" with Chris Matthews is up next.

CHRIS MATTHEWS, MSNBC HOST: War on the right. Let's play HARDBALL.




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