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GOP attacks Mueller at FBI hearing transcript 12/7/17 The Beat with Ari Melber

Guests: Nick Akerman, Frank Figliuzzi, Randall Eliason, Maya Wiley, Noah Bookbinder, Michael Steele

Show: THE BEAT WITH ARI MELBER Date: December 7, 2017 Guest: Nick Akerman, Frank Figliuzzi, Randall Eliason, Maya Wiley, Noah Bookbinder, Michael Steele

CHUCK TODD, MSNBC HOST, "MTP DAILY": We`ll find out who will take over for Big Luther next week after the Alabama special election.

By the way, "MTP Daily" will be live in none other than Alabama tomorrow ahead of that big election next week.

That`s all we have for tonight. THE BEAT with Ari Melber starts right now. Good evening, Ari. Eight seconds late. Sorry, buddy.

ARI MELBER, MSNBC HOST, THE BEAT: Don`t worry about it. We`re not counting. Thank you, Chuck.

Tonight, we have new e-mails just leaked about the famous Trump Tower meeting. This is a breaking story and we got these emails within the last hour.

Now, whatever was said at the Trump Tower meeting, whatever people thought went on there, the claim from the Trump folks was always that this was a one-off meeting. So that even if it maybe was a bad idea to hold that meeting with Russians offering dirt on Hillary Clinton, that was it. It was isolated. It was alone. It was, we`ve heard, a one-off.

And that`s what makes this story so interesting. Brand new e-mails that have leaked from Trump`s inner circle, they were first obtained by CNN, and they appear to tell a different story that the meeting was not a one-off, that the meeting led to plans which were put in writing by the very people who orchestrated that Trump Tower Russia meeting.

The emails involved the British publicist who set this whole thing up, Rob Goldstone. He had the offer that Donald Trump would get some sort of dirt on Hillary Clinton from Russians meeting with the people you see on your screen.

Now, those people, of course, Donald Trump Jr., Jared Kushner, Paul Manafort and some Russians. Tonight, though, what is new here is emails revealing what happened after the meeting.

In one email, Goldstone forwarded a new story about Russia hacking the DNC and said it was "eerily weird" given what they had discussed at the Trump Tower meeting five days before.

And after Trump Jr. posted his e-mail exchange with Goldstone on Twitter under pressure, it was revealed, of course, that there was that dirt offer. The son of one of the Russian attendees then e-mailed his father and said why was Trump Jr. admitting "collusion?"

These pretty extraordinary. So, I don`t want to spend any more time reading the e-mails to you. I want to bring in our panel of experts. Nick Akerman, a former Watergate special prosecutor, a partner at Dorsey & Whitney; Frank Figliuzzi, a former assistant director for counterintel at the FBI; and former US attorney Randall Eliason. He was a chief of public corruption and government fraud. That`s a key section of a key US attorney`s office located in Washington, D.C.

Frank, I go to you because this is the kind of thing that FBI agents do all the time. They pour over material not only from people who might be of interest or subjects of an inquiry, but all the people around them. What do you think of these e-mails?

FRANK FIGLIUZZI, FORMER ASSISTANT DIRECTOR FOR COUNTERINTELLIGENCE AT THE FBI: I think it is time to start asking ourselves whether Don Jr. is beginning to obstruct this investigation.

So, look, we`ve got now word from yesterday that he refused to answer a question on the Hill and has claimed attorney-client privilege because he was on the phone with his father when attorneys were in the room.

Now, we`re hearing something even more significant that everything he seems to remember about the meeting and things he said he can`t recall about the meeting seem to be inaccurate because now the person who organized the meeting has e-mailed folks in the meeting, reminding them what they talked about.

And what did they talk about? Topics that Don Jr. has not brought to our attention. Topics, for example, that the candidate Trump should create a Russian social media site.

But even more importantly, we`re learning that he sends - the guy who organized this meeting sends the copy of a CNN news article talking about Russian hacking of the DNC and says, this is eerie, based on what we talked about at the Trump Tower meeting.

MELBER: Right. Eerie there sounds like a concern, Nick, that the discussions in the meeting were somehow germane to news that the Russians hacked Hillary`s e-mails.

Again, to be clear, sometimes we play the statements of Don, Jr. in fairness, to say, well, here`s his defense. Other times, like tonight, we have to play them in a way that makes him look totally ridiculous because here he was saying there was no follow-up. These e-mails show follow-up at a minimum. Take a listen.


DONALD TRUMP, JR., SON OF DONALD TRUMP: There wasn`t really follow-up because there was nothing there to follow up. As we were walking out, he said, listen, I`m sorry for that.

But I think what happened, he sort of goosed up, he built it up, there was some puffery to the email, perhaps, to get the meeting, to make it happen. And in the end, there was probably some bait-and-switch about what it was really supposed to be about. And so, you know, there is nothing there.



NICK AKERMAN, FORMER WATERGATE SPECIAL PROSECUTOR: There`s tons there. This is basically what I have been saying all along. There was a criminal act that occurred here which was the hack at the DNC.

The Trump campaign knew about it as early as April 2016 through Papadopoulos when Ron Goldstone offered to give to the Trump campaign this incriminating evidence, which he said was part of Russia`s effort to help the Trump campaign.

There can be little doubt that the only thing they had that was dirt on Hillary Clinton that was helpful to the campaign was those e-mails.

The reason why Don, Jr. does not want to admit that he actually received those e-mails is because it`s a crime to receive those e-mails, knowing they were stolen. That`s why he`s doing it.

This is part of one of two conspiracies that is out there that relates to this conspiracy between the campaign and the Russian government. And this one may be, I don`t know if it`s the most serious, but it certainly is one that we know there was a crime because we know there was a hack at the DNC.

MELBER: Randall, you`ve prosecuted corruption cases and other types of complex conspiracies where a big question is what did people think they were doing?

If you show up in the wrong room, in a big building, maybe you walk in on something, but you`re not criminally culpable. But if you know what`s being discussed, if you come to plot about it and then you do follow-up on it at a certain point, that evidence can stack up against you.

So, walk us through how you as a prosecutor would look at this.

RANDALL ELIASON, FORMER ASSISTANT UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA: Sure. I think that`s correct. I think as you said, there are two main ways in which these e-mails are interesting.

One is, as you mentioned, they contradict the claim that this meeting was just a one-off, that there was no follow-up, no further contacts. And it feeds into the larger narrative of the sort of more extensive contacts with Russian individuals by those involved in the campaign that they`ve consistently denied and then additional contacts keep leaking out and leaking out. And now, we have the apparent follow-up contacts from this meeting that was portrayed, as you said, as kind of this one-off meeting.

The second reason that they`re important and interesting, I think, is to the extent they potentially contradict things that have already been said by other members of the administration, Don, Jr. or Jared Kushner or others who have testified before Congress or have been interviewed by the FBI, if they had made statements about that meeting or about any possible follow-up to that meeting, that now is contradicted by these e-mails, or even more importantly, by the author of the e-mails.

Because on their face, e-mails, they can be ambiguous, they can be a little hard to interpret. But if the author comes in now and starts testifying and contradicting what they`ve said, then that`s potentially very important.

MELBER: Yes. And, Frank, part of my job is to ask obvious questions. So, let me throw one your way. If there was some follow-up from this meeting, but it was innocent, say there was follow-up to discuss the logo of the Trump campaign and these people had ideas about it, but why lie about that?

Why not say, well, we met about X and then later there was some innocent follow-up, but it wasn`t about the things that might have been criminal. That`s not, of course, what Don, Jr., others have said. They`ve said no follow-up. They said nothing else came of it. These e-mails tonight explode that.

And one example, I`ll read to you, is an e-mail here leaked, I mentioned, first obtained by CNN that said Don and Paul were on board with an idea to create a Russian social networking site page. This is called VK. It would be a good way to connect with Russian Americans. It was referred to in one email as a "cute marketing idea."

Goldstone mentioned the idea at the end of the Trump Tower meeting and continued to push it over e-mail.

Why, from an investigative standpoint, would someone lie about that?

FIGLIUZZI: There`s two reasons. On a macro level, first, you`ve got collusion concerns now, right? We`re beginning to see a theory of what was really discussed at that meeting, whether it was the DNC hack, whether it was other items.

But on a specific level, let`s remember this. This isn`t just about Don, Jr. now. The president himself crafted a statement about that Trump Tower meeting where he said it was about child adoption.

Now, we`re getting information that that`s not entirely what was discussed, if at all. So, we have a reason - it`s a lie to protect the president here as well.

MELBER: I want to bring in Joan Walsh who has been racing to get to a camera because we wanted her in this discussion and New York traffic can intervene. It makes us all human.

So, Joan, I know you`re joining us. But the big headline here is these e- mails leaking out really explode any idea that there was an isolated meeting that nothing ever came out of because now you`ve got a lot of key people talking about not only the meeting and the follow-up, but other ideas heretofore undiscussed. Walk us through it.

JOAN WALSH, NATIONAL AFFAIRS CORRESPONDENT, "THE NATION" AND MSNBC POLITICAL ANALYST: Well, I think it`s clear. I mean, these emails are eerily weird as someone might say, Ari. I mean, they really show a pattern at this point.

Rob Goldstone, more than Donald, Jr., is the obvious center of it, but he`s brought Don Junior in. And the idea that they needed to have presence on a Russian social networking site - they`ve got the fig leaf that it was in order to reach Russian Americans, but it`s still quite bizarre.

And it does seem like there was at least a low-level team, but reaching back to people in the campaign who had a lot of ideas about how to advance - how to have Russians help advance Donald Trump.

MELBER: Joan, do you think it`s possible that the reference to the social networking site is not just to do social networking, but there was some idea to use it in some other way?

WALSH: I can`t go any farther than what we know at this point. I just think - I think it`s an odd place to decide that you need a presence. And without knowing more about the site itself, that`s about where I would have to -

MELBER: You say it`s odd, but is it eerie?

WALSH: It`s also eerie.

MELBER: I wanted to use the word of the night.

Randall, while I have you here as a former prosecutor, I also want to ask you about this ongoing debate over attorney-client privilege because, on the one hand, as I was reporting last night, discussing with a member of Congress, there are reasonable arguments if you have two people who are getting counsel advice and are together with counsel that that would be privileged and there`s nothing wrong automatically with claiming a privilege.

It could be like doctor-patient privilege. You get to claim it. And yet, we would be remiss here reporting if we didn`t know that that big debate yesterday about attorney-client privilege connects with the breaking news tonight that there`s more and more dribbling out about what had previously been lied about at the Trump Tower meeting.

So, your view on both questions. One, could it be a legitimate claim of privilege? And two, do you see any link here that it comes all back to this meeting?

ELIASON: Yes, sure. As you said, it`s not impossible because, to be privileged, there has to be a communication to a lawyer to obtain legal advice. And so, if the facts were that they were both on the phone with their attorneys to obtain legal advice, then, yes, maybe, if they also can raise some kind of joint defense argument.

But you can`t make it privileged just by putting a lawyer on the phone or putting a lawyer in the room. So, I guess, the privilege claim seems unlikely. But as you said, it`s not impossible.

The problem with the privilege, when it comes to the committee, is their ability to press the issue is dependent on their willingness to do that, right? Because the only way now to force the issue would be for the committee to vote to subpoena Don, Jr. to come back and then vote to override any claim of privilege. And then, if he continues to refuse to testify, to vote to hold him in contempt or take it to court. And, I guess, that seems unlikely with the Republicans in control of the committee.

If he tries to make the same privilege claim with Bob Mueller, though, and in the grand jury, he`s going to find the opposing side much less accommodating. And Mueller won`t have any trouble taking this to a court to find out whether the privilege claim is valid, getting an order, compelling him to testify. If it`s not, then holding in contempt if he continues to refuse.

MELBER: A very interesting sequence, you explain there. Randall Eliason, Frank Figliuzzi, thank you very much. Nick and Joan, stay with me for later in the show.

Coming up, I have a BEAT special report tonight on how Bob Mueller could be protecting his Flynn investigation from any possible Trump pardons. An unusual strategy, we`ll explain.

Also, Republicans attacking Bob Mueller`s credibility, today, they got some brush back from Trump`s own FBI director.

And Senator Al Franken says he`s resigning and he`s also asking why it`s OK for Donald Trump and Roy Moore to remain in office.

And later, my exclusive interview with the man who was denied a marriage license by an anti-same-sex marriage clerk. He just filed paperwork to get her job.

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


MELBER: Reporting on big breaking news, emails leaking about that infamous Trump Tower meeting, but there is another side to all this, and you could call it the distraction side. Republicans attacking special counsel Bob Mueller at an FBI hearing today.


UNIDENTIFIED MALE: Did Bob Mueller recruit people to his probe that had a bias against the president?

UNIDENTIFIED MALE: You are taking an FBI department that was weakened by Mueller`s time.

REP. LOUIE GOHMERT (R), TEXAS: We do not know the magnitude of this insider bias on Mr. Mueller`s team.

REP. BOB GOODLATTE (R), VIRGINIA: If you kicked everybody off Mueller`s team who was anti-Trump, I don`t think there`d be anybody left.


MELBER: These attacks come after basically several months when many Republican elected officials avoided attacking Mueller directly. But the mood recently began shifting in conservative media.

LOU DOBBS, FOX NEWS HOST, LOU DOBBS TONIGHT: Robert Mueller`s entire team should be replaced. Mueller himself should be canned.

UNIDENTIFIED MALE: The person who should be investigated is Barack Obama.

UNIDENTIFIED MALE: It`s been the special impeachment counsel from the beginning.

LAURA INGRAHAM, FOX NEWS HOST, "THE INGRAHAM ANGLE": The Mueller investigation, we`ve been talking about how that`s corrupt to the core.

NEWT GINGRICH, FORMER SPEAKER OF THE HOUSE: Mueller is corrupt. The senior FBI is corrupt.

DOBBS: It`s like the old KGB that comes for you in the dark of the night banging through your door.

SEAN HANNITY, FOX NEWS HOST, HANNITY: This is the biggest corruption we have ever seen in terms of our justice system, I believe, in our lifetime.


MELBER: That`s what happening out over there. So, you have the conservative media pushing the House Republicans. But what do you get next?

Well, today, this was pretty interesting. Christopher Wray is, of course, the man handpicked by Donald Trump to run the FBI and he was actually asked about Mueller and he had a different take.


UNIDENTIFIED MALE: Do you know the reputation of Director Mueller within FBI agents and FBI lore?

CHRISTOPHER WRAY, DIRECTOR OF THE FBI: My experience has been that Director Mueller is very well-respected within the FBI.


MELBER: I`m joined now by Noah Bookbinder, executive director for the Citizens for Responsibility and Ethics in Washington. He`s written a new report on how it would work if you try to remove Mueller. And also, Maya Wiley who was the former top lawyer to the mayor of New York city.

Maya, what are we seeing here?

MAYA WILEY, FORMER COUNSEL TO THE NEW YORK CITY MAYOR: We`re seeing partisan politics attacking an independent prosecutorial agency that is critically important to protecting the laws of the United States and the integrity of the federal government in a nutshell.

MELBER: And do you think politically, the shift is based on facts and evidence because there was a report about one individual who worked at the FBI who had texted about politics or do you think this is somebody basically, as we lay out in the introduction, getting their cues from "Fox News"?

WILEY: This is clearly partisan and not based in fact. First of all, we`re talking about a leadership in the Department of Justice that is itself Republican. So, to sort of suggest that there`s somehow a partisan attack simply because one lawyer back - relating to the Clinton email investigation changed language from gross negligence to - is silly because the reality is there are edits that go on all the time.

If the FBI is saying that it didn`t find reason to prosecute Hillary Clinton, you`re not going to then use language that suggests you should prosecute Hillary Clinton. And it`s a simple editing process.

But, nonetheless, even if you had one attorney who was later putting us in a different position, that certainly doesn`t suggest that you suddenly have an independent agency fundamentally responsible for upholding the laws of the United States not upholding the laws of the United States because it is pursuing credible evidence that there may have been crimes committed by people holding public office.

MELBER: Noah, what did you think of this shift today because it is different than what many Republicans had previously said?

NOAH BOOKBINDER, EXECUTIVE DIRECTOR, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON: I think what`s happening here is that it`s very clear that Robert Mueller is moving quickly, he`s moving aggressively, he`s moving effectively. And I think that those who don`t want to see this investigation move forward in an aggressive way and get closer to the president, we don`t know where the facts are going to lead, but right now they`ve led relatively close to the president -

MELBER: But you view this as a direct response to Bob Mueller getting Flynn to flip and breaching the White House for the first time in this investigation?

BOOKBINDER: That`s right. That`s right. For those who are concerned about where this is going, discrediting Mueller and discrediting those working for him seems like a better tactic than actually addressing what`s happening in the investigation because the facts that are coming out of the investigation and the pleas and the charges are pretty alarming.

And, clearly, folks would rather be talking about allegations of bias.

MELBER: And they`re not - the nature of a plea is they`re not debatable. It`s not Mike Flynn is accused of lying to the FBI in a felonious manner. It`s Mike Flynn admitted it. And maybe did other things he didn`t admit to yet because he`s got a cooperation agreement. I mean, that`s where we`re at. It`s so big you kind of - it`s worth more than a week`s coverage.

Take a listen to some of the obstruction questions today.


REP. SHEILA JACKSON LEE (D), TEXAS: Do you believe that a sitting president can commit an obstruction of justice?

WRAY: I would defer to the lawyers on that one.

UNIDENTIFIED MALE: Do you believe that President Trump is above the law?

WRAY: I don`t believe anybody is above the law.

REP. HAKEEM JEFFRIES (D), NEW YORK: Feels like obstruction of justice, sounds like obstruction of justice, looks like obstruction of justice. I think the American people, Mr. Chairman, can reasonably conclude it`s obstruction of justice.


MELBER: What was important about that questioning to you on a week where the Trump legal team took the position that it`s impossible for Donald Trump to obstruct justice and then walk that back publicly?

BOOKBINDER: Well, it is I think very clear - the law is very clear that the president, and anybody, can obstruct justice. The fact that you have legal authority to fire an FBI director or to criticize an investigation doesn`t mean that you can do it corruptly, doesn`t mean that you can do it for improper purposes.

And so, it`s an argument that seemed like sort of a shot in the dark by an increasingly panicked legal team. And it`s appropriate that there be push back on that today.

MELBER: But you don`t think their public fighting with each other was three-dimensional chess.

BOOKBINDER: I don`t think so.

MELBER: I`m just kidding. I`m just kidding. I was just kidding. Noah Bookbinder on that - Maya, I tell bad lawyer jokes. It`s part of what we do here.

WILEY: It`s part of being a lawyer.

MELBER: I don`t think it was chess because it didn`t go well. Maya and Noah, thank you both. I appreciate it.

Up ahead, Sen. Al Franken says in his speech announcing his resignation that it is ironic that he has to do this while Donald Trump "bragged about sexual assault."

And later, my special report goes inside something you may not know about a deal that Mike Flynn made with Bob Mueller. New DOJ documents showing a potential path around a Trump pardon.

And later, remember Kim Davis, who could forget that circus, after she illegally denied marriage equality rights. Well, now the man that she denied is running for her job. He`s my exclusive guest tonight.


MELBER: Sen. Al Franken announced he will resign over allegations of groping and sexual harassment.


SEN. AL FRANKEN (D), MINNESOTA: Today, I am announcing that, in the coming weeks, I will be resigning as a member of the United States Senate.

I, of all people, am aware that there is some irony in the fact that I am leaving, while a man who has bragged on tape about his history of sexual assault sits in the Oval Office and a man who has repeatedly preyed on young girls campaigns for the Senate with the full support of his party.


MELBER: Thirty-five Democratic lawmakers had called on Franken to step down. The news comes three weeks after Leeann Tweeden, his first accuser, had stepped forward. Today, she said that she had previously publicly accepted his apology and did not think he needed to resign.

By contrast, it`s been 28 days since "The Washington Post" first reported that Alabama Republican Senate candidate Roy Moore had sexually preyed upon a 14-year-old girl when he was 32.

As Democrats are rallying and calling on their colleague to resign, the RNC and the president have been all-in for Moore. Since that report, Moore has not stepped down from the race, obviously, and he has also denied those accusations.

Meanwhile, Republican Sen. Graham said this.


UNIDENTIFIED FEMALE: What does it mean for Republicans if Roy Moore becomes a senator and Sen. Franken has resigned?

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Well, I am not supporting Roy Moore. I wish the RNC wasn`t supporting Roy Moore. I want him to step aside. I wish he were not our nominee. I think if he wins, he`s the gift that keeps on giving for Democrats.


MELBER: Back with me is Joan Walsh and a former chair of the RNC, Michael Steele. Joan, your reaction to all these developments today?

WALSH: It was really heartbreaking to watch Al Franken resign today, Ari. Excuse me for my voice. I`m not sick. My voice is sick.

It had to happen. There were eight allegations. And as I`ve talked to friends of his and friend of mine, you could find something wrong with every allegation, but you were having to parse it so much. And if there were eight, maybe there were going to be 80.

And I think that there is - a lot of people are making politics out of this, like, oh, the Democrats wanted to get him out of the way for Roy Moore. This is not going to help or hurt Roy Moore. This is not even going to be taken seriously by the Republicans because all that matters is now Franken`s gone.

Sarah Huckabee Sanders has told us before the difference between Donald Trump and Al Franken is Al Franken kind of admitted to something and apologized, Donald Trump didn`t. So, he`s a sexual abuser and the man in the White House isn`t as far as Republicans are concerned.

So, this wasn`t really a political calculation that I saw. Except in a deeper sense, the resistance to Donald Trump is powered by women. It`s powered by women`s anger. It`s powered by women`s anger at the "Access Hollywood" tape and the 16 women who came forward and said he abused them who were not listened to.

And so, this was a really tragic unraveling that I think had to happen. And I salute Al Franken for having the decency to do what he did. And I feel terrible.

MELBER: Michael Steele, Joan spoke to the ethics of it and, to some degree, the politics of it. Why don`t you address both of those? Your reaction here as someone who has chaired a political party and watched the Democratic Party respond to this very differently than the RNC to date?

MICHAEL STEELE, FORMER CHAIR OF THE RNC: They did. And really from early on, while the leadership may have -- had taken an early sort of let`s wait and see, and sort of was stumbling through this, the individual members in the Senate on the Democratic side, were not, particularly the women. And I think that`s important to note. They came to the table with much more clarity than we saw even among Republicans who were coming out of the gate against Roy Moore. So I have to give kudos to the women in the Senate who were really the drivers here behind this whole narrative and not just with respect to Democrats. And it really does speak to the point you raised Ari, about the ethics, the morality of this, recognizing there is a very bright line folks. You can`t get it twisted, you can`t confuse it, you know. Whether you`re talking about a 14-year-old girl or a 27-year-old woman or anyone else, there is a very bright line about how you treat them, how you do not disrespect them, etcetera, etcetera.

The politics of this however is even more disturbing because by the political calculations by the GOP, they value holding a seat, getting a vote over the ethics, over the morality, over the concern that`s a young woman would have even though this may have happened to her a while ago, you know, that that somehow was less, and she had to prove it. The women still have to prove, not you know, not with one, two, three, seven, eight, nine, ten, coming on saying, yes, me too, this happened to me. She still has to prove it. And I think for the Republicans, that`s a very dangerous spot to be in. And Republican women, you all need to step up and say something, you know, particularly if you`re an elected office here when Roy Moore shows up because you`re going to have to come forward just like the men will.

JOAN WALSH, MSNBC POLITICAL ANALYST: Well, it will be really interesting Michael and thank you for saying those things to see what happens if he gets elected, and I hope he will not, and I think there`s still a chance that he will not. If he shows up in Washington, does he go straight to an ethics committee? How do -- how does Republican leadership respond to this? Because I think, you know, Mitch McConnell has said -- mostly said the right things and he kind of backed off and said it`s up to Alabama. But he has now said that there will be an ethics investigation and I think there has to be. But you know, I just -- I don`t expect this necessarily to work out for Democrats. That`s not why I think it had to happen. Even today, even on our network, even some people that I love had gone -- went from saying, why did the -- are the Democrats taking so long the get rid of Al Franken?

And what are they going to do with Al Franken to saying oh, God, you guys tossed Al Franken overboard? Last night we had the shame of Laura Ingraham and Newt Gingrich saying that the Democrats were practicing sexual McCarthyism and throwing him overboard and it was pure (INAUDIBLE) and a witch hunt and a lynch mob. So these people are going to find a way to twist this every which way. This can`t be done for immediate political advantage. It has to be done for deeper reasons. I think it was. I think it -- I`m still pained to say it was the right thing to do but I think it was. And now, people in Alabama have a moment of reckoning and I hope some women watch Al Franken today and said you know, this is painful for this man. I don`t agree with this politics but this is what a man does. This is what a mensch does when he`s in the way of his party and when he`s caused pain to women. And they do the right thing and they get to -- into the voting booth next week.

MELBER: Joan Walsh and Michael Steele, I thank you both for an important discussion and one we will be returning to. After the break, we have a very different report that I mentioned. This is a special legal report on a new weapon that might be available to Mueller if Donald Trump uses his weapon of the pardon power. And later, an interview I`m excited about. County Clerk Kim Davis had turned him down for a lawful marriage license. She said she was personally against gay marriage, never mind the law. Well, now he`s running and says he`ll do her job a better way. He`s my exclusive guest tonight ahead of THE BEAT.


MELBER: Now to our special report tonight. Republicans pressed FBI Director Chris Wray in hearings today. Some suggesting the man who used to hold Wray`s job, Bob Mueller, could be biased in the Trump-Russia probe and arguing these attacks could give Trump a plan B, that basically beating up on Mueller, lays the groundwork that if he gets closer to the white house, there could be a plan to shut it all down by sidelining Bob Mueller and pardoning Trump`s top aides.


UNIDENTIFIED MALE: I`m not in the President`s head. If he wants to pardon people, he can pardon people. There`s not exactly a huge check on that.

PAT ROBERTSON, CEO OF REGENT UNIVERSITY: He can have a blanket pardon for everybody involved in everything and say I pardon them all, you know, case closed. It`s all over.

RENATA MARIOTTI, FORMER FEDERAL PROSECUTOR: Unless a pardon is on the table no, defense attorney would have that sort of ultra-aggressive, dismissive attitude toward this indictment.

MICHAEL BESCHLOSS, AMERICAN HISTORIAN: If Donald Trump thinks that he can easily pardon himself and pardon his aides, pardon his children, we are on our way, if that happens, to seeing a constitutional crisis.


MELBER: The premise here is that pardons would stop prosecutions. But even if a Trump pardon was lawful, it only applies to federal prosecutions, not state prosecutions. On August 29th, we reported exclusive on THE BEAT that one state attorney general was considering a criminal probe relating to Russia. The very next day, Politico followed up on our report with this headline. Mueller teams up with New York Attorney General in Manafort probe. So there was reporting that local prosecutors could help Mueller pick up his case in the face of a Trump pardon. Well, tonight we have a new development on this front that actually comes from Mueller`s office. A potential tool buried in that all-important agreement that Bob Mueller reached with Mike Flynn when Flynn flipped and started talking.


UNIDENTIFIED MALE: His plea part of a deal with Special Counsel that already has Flynn talking.

UNIDENTIFIED MALE: We know that Special Counsel reached a plea agreement with Michael Flynn.

UNIDENTIFIED MALE: This is a negotiated plea, this is an agreement. This is the kind of court document that`s filed when someone has agreed to plead guilty.

CHRIS HAYES, MSNBC HOST: Documents in Flynn`s plea agreement show that Flynn`s discussions were and I quote again, part of a coordinated effort by Mr. Trump`s aides to create foreign policy before they were in power.


MELBER: So all of that first news coming out of Flynn`s agreement was about his crime, lying to the feds and lying about a Russian sanctions plot, news about what happened in the past. Tonight though, I can report for you on what happened in the past. Tonight though, I can report for you on what Flynn`s agreement shows about what could happen in the future. Because the agreement that Flynn signed actually one week ago today not only confessed to a crime and dished on the Trump transition team, it also made a specific commitment to not only flip and cooperate with Mueller but to cooperate with someone else. Here`s the pledge to cooperate fully and truthfully with the Special Counsel office from Flynn.

But then it goes farther because Bob Mueller got Flynn to agree to cooperate with state and local law enforcement authorities identified by the Special Counsel. That`s important because it means if Flynn was pardoned for lying to the FBI, he still signed an agreement to cooperate with any local prosecutors who Mueller chooses. Now, is that arrangement in all the Justice Department`s plea deals? No. Well, not all cooperation agreements are even publicly available. A review of 18 agreements the DOJ did publicly release shows most do not explicitly require cooperation with local prosecutors. Even Mueller doesn`t always use this requirement because his other plea deal with Special Counsel with that former Trump Campaign Adviser George Papadopoulos, there is no reference to local prosecutions. So what does this all mean tonight? Let`s be clear.

Nobody knows if Donald Trump will pardon people in this probe. Nobody knows what Bob Mueller would do if there are pardons. But good prosecutors don`t make predictions. They prepare methodically for every possible outcome. Bob Mueller didn`t just get Mike Flynn to flip. He got him to pledge potential cooperation with local prosecutors, who Donald Trump can`t touch. And at a time when Donald Trump`s breaking norms, Bob Mueller has a prudent strategy, drawing on protections in our constitutional system. Because think about it, the only reason there are prosecutors that President Trump can`t touch, even with his big pardon power, is because our founders wrote a Constitution where power checks power. Where there is prosecutorial power for the states and for the feds.

And as Madison wrote in the Federalist papers, the resulting system is neither wholly federal nor wholly national. Mike Flynn made a deal with the feds. We know that but it turns out he also made a deal with anyone else Bob Mueller tells him to work with. Now that is power. Nick Akerman served as Watergate Special Prosecutor and joins me now. Nick, what is the significance in your view and how rare is it to have a cooperating agreement with the feds and also holds out cooperating with local prosecution?

NICK AKERMAN, MSNBC LEGAL ANALYST: It`s extremely rare. I mean, I have never seen that in all my years of practice.

MELBER: You`ve never seen it.

AKERMAN: I`ve never seen it. I`ve seen that there are some -- I mean, in preparing for this broadcast tonight, I looked there are some out there. They may relate to instances where the federal government -- the federal prosecutors are actively working with state prosecutors. But I think in this particular incident, it is extremely important and significant. Because what Bob Mueller can do, if he`s working with Schneiderman the New York State Attorney General, basically he can -- at this point in time, if it hasn`t happened already, has Flynn being interviewed by people in the State Attorney General`s office.

The significance of that is so obvious because if suddenly Trump starts pardoning people, it doesn`t make any difference because -- and he already fires Mueller, even worse. He fires Mueller. It means that the State Attorney General already has a witness and can continue with that witness. And even if Flynn were provided with a pardon, it wouldn`t absolve him from having to cooperate with Schneiderman`s office, it wouldn`t absolve him --

MELBER: With the New York -- New York Prosecutor.


MELBER: So this -- so does this tell that you Bob Mueller is potentially thinking ahead? And what do you make of the fact that he`s got this thing that could get around a pardon and a Flynn deal but not in the Papadopoulos deal?

AKERMAN: Well, I think it`s pretty obvious there too. Flynn is somebody who obviously has information on Trump, Kushner, Ivanka, and Don Junior. And when you get that close and the President is that close, the odds -- the increase that he`s going to do something, he`ll lead to pardon or he`ll try and fire Mueller. And this really acts as insurance against that because if he fires Mueller, it doesn`t mean the investigation is dead. There are crimes in the New York State Criminal Code that are just as good if not better than what`s in the toolbox of the feds.

MELBER: And here`s a former Federal Prosecutor Paul Fishman who was speaking to our own Rachel Maddow about these issues and again, how Mueller is doing things a little differently. Take a listen.


PAUL FISHMAN, FORMER U.S. ATTORNEY: Ordinarily, a plea agreement says you plead guilty to A, or A, B and C, and in exchange for your pleading guilty to those things, you won`t be prosecuted for everything we know about as of right now. Everything you`ve told us about as of right now. This plea agreement does not say that.

UNIDENTIFIED FEMALE: Doesn`t say anything like that.


MELBER: This plea agreement does not list of course what potential prosecutions could happen at a local level or other federal prosecutions.


MELBER: What do you think of what was going on there?

AKERMAN: Well, I think what`s going on, you can tell it from his allocution which is a statement he made to the court so that the court can determine that he`s guilty plea was valid. It all goes to the materiality of his lie. The materiality focuses on the conspiracy between Russia and the Trump campaign. It has nothing to do with any kind of other acts or anything that occurred after the campaign. So the big question is, what is it about the lies after the campaign and after the election that relate back to the election. You know, what is it about talking to Kislyak about sanctions, releasing sanctions that relate back to what occurred during the campaign?

MELBER: Nick Akerman, you are an eagle eye, the observer to these cooperation agreements. We are indebted to your expertise.

AKERMAN: Thank you.

MELBER: Thank you, sir. I`ll see you again. Coming up, as promised, Kentucky Clerk Kim Davis has made news for denying marriage licenses against the law. Now, one of the men she illegally tried to stop from getting his own marriage running against her for a seat is here next.



BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: -- disappointed by your elected officials, grab a clipboard, get some signatures and run for office yourself.


MELBER: If you don`t like the game, get in the game. That was the last major piece of advice Barack Obama offered as President. And my next guest fits the bill. First-time candidate David Ermold running to replace a Kentucky Clerk who once denied him a lawful marriage license to his now husband. That Clerk was Kim Davis, who you may remember this. She briefly became something of a political celebrity when she defied the Supreme Court`s ruling that people can marry regardless of the gender of their partner.


UNIDENTIFIED MALE: Would you please help me welcome to the stage, Kim Davis.


MELBER: Eye of the tiger, you can barely hear it. And here is how he Ermold met Davis when he confronted her for defying the ruling.


KIM DAVIS, COUNTY CLERK, ROWAN COUNTY, KENTUCKY: I`m not being disrespectful to you.

DAVID ERMOLD, RUNNING FOR COUNTY CLERK: You absolutely had disrespected us.

DAVID MOORE: You`re treating us as second-class citizens. That`s what you`re doing. You`re telling us we don`t deserve the same rights that you have that you enjoyed your entire life.

DAVIS: I`m saying that if you --

MOORE: Would you do this to an interracial couple?

DAVIS: A man and a woman, no.


MELBER: And this is what their last stand-off looked like in 2015. You see the cameras there. Because the clerk handles not only wedding paperwork but also candidate filings, here they were together again yesterday when Ermold filed paperwork to run for her job. David Ermold joins me now as my exclusive guest. What made you want to run for this job?

ERMOLD: Well, I think you`ve just seen part of the answer just right there in that last video. Even earlier, you showed a clip of Mike Huckabee there coming actually not to Rowan County but a neighboring county to try and take advantage of our hardship and take advantage of the difficulties that our community has been through in just to launch his political campaign. So that right there was probably the initial spark in my mind way back in 2015 that made me want to consider running.

MELBER: And so we often think of politics in a falsely binary way. You know, we talk about the politicians and then citizens or voters and that`s it. Of course politicians are citizens and they used to be private citizens, and so I just wonder, are you someone who`s often thought about or wanted to be in public office or was this really an experience where you just went to do something that the Supreme Court ruled was your right and then facing this extra barrier, right, which is, of course, a product of someone standing in your way unlawfully. Did that make you more likely to want to do this?

ERMOLD: Well, you know what, the LGBTQ community has been used by politicians for years and years and years, for them just to advance their own agenda. You know, we look at these politicians and their strategies and it`s always just to divide and conquer type strategy. So let`s throw a social issue out there. Let`s divide the people and then all you have to do is get a percent or two of the vote and you win your office, you know. And that may help them and that may get them in office, but that divides communities. That pits neighbor against neighbor, friend against friend, you know, and it`s really hurting our community is what it`s doing.

MELBER: And then I have to ask you, David, in a nutshell, is the biggest problem with Kim Davis that she took this position where you obviously disagree or is the biggest problem that she failed to uphold the law, whether one agrees with it or not?

ERMOLD: It is a combination of things, you know. I mean, I think that if you`re a public servant that you should absolutely be serving the public regardless of whether you agree with their personal life or not. So that`s part of it. The other thing here is, you know, we have a -- she has a job to do, you know. If her personal convictions are going to cost the taxpayers of Kentucky close to a quarter of a million dollars, then I think we need to re-evaluate, you know, why she`s in office. Do we want a person like that in office? And I think from what happened back in 2015, there`s all kinds of consequences. So this isn`t just a one issue campaign. In fact, you know, the marriage license, that`s already been resolved. That`s done.

MELBER: Of course. And briefly, the Clerk Race doesn`t usually have a public debate, does it?

ERMOLD: No. Generally, there`ll be a forum later for all the candidates.

MELBER: Well, as I like to say around here, I wanted to extend an invitation to her and to you to join me if you ever want to come on together and continue to talk about it because this is a fascinating next chapter to what happened there in your -- in your community.

ERMOLD: Well, I appreciate you having me. I certainly do.

MELBER: OK. Thank you, David. I appreciate that. Up next, Donald Trump under pressure for something he used to criticize Marco Rubio for.


MELBER: You know, Donald Trump has taken a very clear position, and I want to give him credit for that. Real leaders don`t get thirsty. He even mocked Marco Rubio for needing water.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It`s like this and we will - - I need water, help me, I need water. Help! And this is on live television. This total choke artist.


MELBER: Now, the White House fending off questions of its own about an apparent case of Presidential dry mouth.


TRUMP: And finally I ask the leaders of the region political and religious, Israeli and Palestinian, Jewish and Christian and Muslim to join us in the noble quest for lasting peace.

SARAH HUCKABEE SANDERS, PRESS SECRETARY, WHITE HOUSE: I know that there were a lot of questions on that, frankly pretty ridiculous questions. The President`s throat was dry, nothing more than that.


MELBER: In other news, President Trump will undergo a physical at Walter Reed Medical Center. The White House says the results will be public. Now Trump`s tweets suggest that sometimes he does not get a lot of sleep and unlike his predecessors who have made a point of working out on camera, it appears this President`s main sport is golf. His campaign aides also recently wrote that he ate two Big Macs, two Filet-O-Fish and a chocolate shake for a single typical dinner on the trail. That would be 2,600 calories. The last update on Trump`s health came from his doctor, Harold Bornstein, who said Trump would be the healthiest individual ever elected to the Presidency.


HAROLD BORNSTEIN, AMERICAN PHYSICIAN: I was under a little time pressure because the Trump organization wanted to respond to Mrs. Clinton`s announcement of her health. In a rush, I think some of those words didn`t come out exactly the way they were meant.


MELBER: That was his explanation of that hyperbole. When the new medical information comes out, we will bring it to you. That does it for THE BEAT, "HARDBALL" with Chris Matthews is up next.


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