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Alabama Senate Special Election Transcript 12/12/17 The Beat with ari Melber

Guests: Eric Swalwell, Ron Hosko, Michelle Bernard, Scott Douglas

Show: THE BEAT WITH ARI MELBER Date: December 12, 2017 Guest: Eric Swalwell, Ron Hosko, Michelle Bernard, Scott Douglas

CHUCK TODD, MSNBC HOST, "MTP DAILY": You don`t want to write any special election off. They`re special for a reason. MSNBC`s special election coverage continues throughout the night. You`ll hear the music all night long. We`ll be back with "MTP Daily" tomorrow to dissect all these results.

But THE BEAT with Ari Melber starts right now. And, Ari, it`s going to be a big one.

ARI MELBER, MSNBC HOST, THE BEAT: It`s a very special election. Any tips for how to watch the rest of evening, Chuck?

TODD: Wait for the returns!


TODD: How about that?

MELBER: I think that`s timeless.

TODD: Don`t call it until the votes are cast and counted.

MELBER: We`ll be watching you on all channels tonight, Chuck Todd. And as you say, all eyes are on Alabama. Polls are closing there shortly where Republican Roy Moore has been fighting allegations of sex crime with minors.

But you see it here. He arrived to vote on a horse today.


UNIDENTIFIED FEMALE: There it is. A steady shot. He`s not just sauntering. He is kind of - well, he was kind of galloping. They`re sassy. We`ve been waiting for it all morning.


MELBER: Moore`s cowboy closing imagery is vintage Roy Moore, dramatic, distracting and critics say tonight totally beside the point.

In fact, his chief point and chief critic, Democrat Doug Jones, did not close with an image. He closed by conjuring two connected themes. The shame of Moore`s alleged history and the shame, he says, of Alabama if tonight it co-signs that record and hands Moore a promotion to the US Senate.


DOUG JONES, DEMOCRATIC ALABAMA SENATE CANDIDATE: In Alabama, we have come so far with too many things. And there`s this saying. "Fool me once. Shame on you. Fool me twice, shame on me." Alabama is not going to let that shame happen again.


MELBER: This is the choice facing Alabama tonight. You`re looking at it. In any typical year, the Republican would be expected to win an Alabama Senate race handily. But the allegations against Moore did show the race tightening at one point. Voting is very much still underway.

An initial wave of exit polls, though, does show a majority of Alabama voters saying something that could be, maybe good news for Roy Moore because the majority did not view the allegations against him, they say, as a major factor in their vote.

That`s the latest on the ground. In the air, if you can call that, Trump`s Twitter account stream an air war. He was backing Moore today and taking a very controversial shot at Sen. Gillibrand, which she then responded to and called a sexist smear.

So, is all of that enough fireworks for this unusual night in American politics? Apparently not. Because I can also report for you that Sen. Elizabeth Warren jumped in to get Gillibrand`s back and make what appears to be a senatorial first, chiding a sitting US president for "slut- shaming".

Our special coverage tonight is led by political experts and journalists in Alabama, including an Alabama Trump delegate who has come out against Moore. Plus, political experts across the south and Washington where Republicans are wondering if they might be losing a key vote for tax reform. A lot on the line.

I begin with Krystal Ball, a former Democratic congressional candidate and current president of the People`s House Project, which recruits candidates in Republican-held districts. She is also the author of "Reversing the Apocalypse: Hijacking the Democratic Party to Save the World" and she is my colleague and friend.

I`m also joined by attorney Michelle Bernard, president of the Bernard Center for Women, Politics & Public Policy and author of "Women`s Progress."

Krystal, we don`t know anything yet as polls close soon, but they have not closed. What do you think is on the line and what are you watching for in this very special night in American politics?

KRYSTAL BALL, PRESIDENT, PEOPLE`S HOUSE PROJECT: Well, right now, I`m just waiting to find out whether I`m going to be drinking in celebration or despair. So, that`s what`s at stake for me personally.

But, Ari, I think one thing we can say definitively right now from a Democratic Party perspective, from my perspective, is that it pays to compete everywhere.

If you had said months before that Alabama would be competitive, people would have told you that`s insane. But what we see is when we really field quality candidates, no matter where they are, we get in the race, we force the other side to spend money and we get in position to take advantage of unusual circumstances.

And tonight, and this moment in history, is full of all kinds of unusual circumstances.

MELBER: Very unusual. And you make such an important point. It relates to some of the things that people think are boring in politics, like what is the registration deadline and how organized are you to have, as you put it, candidates in the field.

Michelle, take a listen to the wife of Roy Moore making something of a closing argument about the identities of people they say are their friends last night.


KAYLA MOORE, WIFE OF ROY MOORE: Fake news would also have you think that my husband doesn`t support the black community.

We had many friends that are black.

Fake news would tell you that we don`t care for Jews. One of our attorneys is a Jew.


MELBER: Michelle Bernard, comment as you see fit.

MICHELLE BERNARD, PRESIDENT AND CEO, BERNARD CENTER FOR WOMEN, POLITICS AND PUBLIC POLICY: So, I`ve got a term for you that a psychologist friend of mine that I increasingly turn on for help in figuring out what on earth is going on in the country.

Gave me a term today called folie a deux. And it`s basically French. And it means shared madness. And what she described to me today is that the whole country, particularly the State of Alabama, is living in the shared madness of Donald Trump and what has become Donald Trump`s America.

You look at Roy Moore`s wife. And she appears to have absolutely no clue whatsoever that she just demonstrated blatant racism by explaining to us that they`ve got a Jew who works in the campaign and they have lots of friends that happen to be black.

It`s just - it is absolutely so absurd, particularly when you look at his wife and all of the things that are on the table. I mean, let`s face it. One of the most important things, at least from my perspective, that is on trial tonight is does the State of Alabama, does the president of the United States, does the United States Congress care about the lives of girls and women and children?

It is the most important issue of the night from my perspective. The entire country is on trial. What does our democracy mean?

Remember, Roy Moore is the man who once said that the United States constitution should have stopped after the 10th Amendment. You`re a lawyer. You know what that means. Women`s rights came after the 10th amendment. The abolition of slavery came after the 10th amendment. The right of African-Americans to vote came after the 10th Amendment. But he thinks the country should have stopped then.

MELBER: You put it so well. And you combine that with his record of flouting the law, being removed as a judge because of his refusal to follow orders.


MELBER: Not a quality to look for in a judge. And yet, what we`re seeing at least in exit polls tonight is how tight some of the issues are. We`re not, of course, reporting on anything regarding the outcome. The polls are open.

I want to broaden our discussion. So, both of you, stay with me, but I want to bring in a panel here. Leah Wright Rigueur is a professor at Harvard University; Michelle Cottle who writes for "The Atlantic" today that shame is a potent cultural force in this moment unless you`re dealing with a man like Trump for whom the term is meaningless; and Laura Payne, a Trump supporter and Alabama delegate to the 2016 GOP convention who has come out against Roy Moore.

And for that reason, Laura, I start with you. If you`re against Moore and you are a former trump delegate, who did you vote for today and what are you seeing?

LAURA PAYNE, TRUMP SUPPORTER AND ALABAMA DELEGATE TO 2016 GOP CONVENTION: I hate to say I`m against Moore, but I`m really for a write-in Republican. I support the Republican agenda.

I won`t say I`m against Moore because, I mean, he is a human being like everybody else. And I feel like the rhetoric has been pretty harsh with him. And I understand people`s views when they hear the things that have come out of campaign or from his mouth. But it`s different here -

MELBER: But you made a decision as a longstanding Republican not to vote for him. I don`t mean - in politics, we use so many words. I don`t mean to overuse the A word, against, to mean you`re against his entire presence on earth.

But as I understand it, there`s a reason why you decided not to vote for him today.

PAYNE: Yes. And I did not vote for him. And I want to support the Republican agenda, but I did not feel like - I felt like some of the women were credible. I felt like some of the women`s allegations, especially the 14-year-old, they haven`t been discredited. I mean, I think that her word is all we can go on. And we don`t who know is guilty or who is innocent or what.

But just from looking at the information that I`ve seen and reading "The Washington Post" article, and I thought they vetted it very well. I just - I can`t help, but just think that there may be something there.

As Sen. Shelby said, where there`s smoke, there may be fire. So, that`s kind of the way I look at it too.

And plus, his years on the Supreme Court. He didn`t uphold the law then. And maybe it was for moral, religious reasons, and I understand that. But when you`re elected to an office, it`s also the people`s office and I feel like that he should have done more with his job and used it appropriately to make a difference versus just take a stand and be suspended, twice.

MELBER: Michelle Cottle and then Leah Wright Rigueur, your views on what we`re seeing tonight?

MICHELLE COTTLE, CONTRIBUTING EDITOR, "THE ATLANTIC": Well, look, Laura is the kind of voter that the Moore campaign was trying to reach with their efforts to discredit the women.

They didn`t try to argue that this was OK. They were just like, flat out, these women can`t be believed, this is all a plot by the Washington national media. Steve Bannon is down there saying people are going to try to come in and tell you how to vote, don`t you fall for that.

And what they were trying to do is make people - turn this into a contest between Alabama values and the rest of the country. They didn`t want this to be about Roy Moore. They wanted this to be about cultural pride.

And for voters like Laura, it was down to kind of what does your conscience tell you about these allegations. Obviously, the entire election will hinge on, to some degree, which way these people decided to go.

MELBER: Leah and then Krystal?

LEAH WRIGHT RIGUEUR, ASSISTANT PROFESSOR OF PUBLIC POLICY, HARVARD KENNEDY SCHOOL OF GOVERNMENT: Right. So, win or lose, the Republican Party is the party of Donald Trump and Roy Moore. This is who they want representing them. This is who they have come out and support of.

And that is incredibly damaging, particularly as the Republican Party once again tries to reinvent itself as it does every couple of decades or so.

I think one of the things to watch here is how are black voters responding to this election and, in particular, to Roy Moore. And they are not having it. They are not happy. This is widening an already wide gulf between black voters and the Republican Party, and it has done lasting, lasting damage.

And I would really think what are the national implications for that even beyond this election.

BALL: And, Ari, if could just lay one other piece on the table here, Roy Moore is what you get when you buy into a sort of apocalyptic vision of politics, which is exactly what Steve Bannon promotes.

This us versus them idea. This you`d rather have anybody in there than a democrat. Our values are at stake. Clashes, civilizations. If you buy into that view that the world will end if your party doesn`t win, then that can lead a person to supporting all sorts of abhorrent behavior, like what has been alleged against Roy Moore.

So, I think Roy Moore is a logical outcome of exactly the Steve Bannon and Donald Trump view of the world and the country.

BERNARD: Can I add -

MELBER: Sure. Michelle Bernard. And then, Michelle Cottle, speak to that because I know your piece today was about that.

BERNARD: Absolutely. I just want to add. I`m going to go back because I think we`ve got to keep taking it back to women. And I`m looking at the history of the State of Alabama. They`ve had two women in the senate in the history of the state. Both women were appointed. Both were in office for five months only. And both have sort of checkered pasts.

And so, I`m looking back at history and I`m wondering if it`s going to repeat itself. And I`ll give you an example. Dixie Bibb Graves, she was appointed by her husband who was the governor and was also her first cousins.

She was a women`s rights advocate, but when she had an opportunity to vote against anti-lynching legislation, she spoke impassioned about it as it was reported.

But she still voted against passing anti-lynching legislation in the State of Alabama because of the fear of the states losing rights and losing sovereignty.

Hopefully, I am hoping that tonight the State of Alabama has put that checkered past behind them and that we will see women step forward, say that they believe in their girls, that they believe in women and they do not put Roy Moore in the United States Senate.

MELBER: Michelle Cottle?

PAYNE: It`s not all about that. It`s not about believing the women with a lot of voters. They don`t believe these stories, these allegations about the women. The majority of these voters that are voting Republican do not believe the allegations. I`m in the minority.

Especially when Gloria Allred represents one of them and she documented some information under the signature and didn`t come out with it 100 percent like she should have, that discredits her story. And it`s unfortunate, but it does.

And this election is not just about Roy Moore. It`s about the Republican Party wanting to take back their agenda, wanting to support Donald Trump in the White House. It`s much larger than Roy Moore. So, whoever wins tonight, it`s not just about Roy Moore.

Now, the national press and media want to make it where it is about Roy Moore. But in Alabama, it`s not just Roy Moore. He`s what we`ve got. These allegations came out after he won. And this is what we`ve got. And a lot of these voters are voting Republican because of the Republican agenda, not necessarily for the man.

MELBER: And, Laura, that`s why you`re here because you bring that perspective. What I want to do is put up a factoid about it and let Michelle Cottle respond.

I`m using full names because I`ve got multiple Michelles.

But we do have the exit polls on what people believe. And we see this with Alabama voters, definitely or probably true is about half. And then you have probably false and definitely false - you have a real split, which is also split Michelle Cottle on partisan lines.

Is that, given all of the reporting and contemporaneous documentary evidence here, problematic and what did you want to say in response to Laura`s point?

COTTLE: Yes. It`s absolutely problematic. And it`s what we were talking about earlier, which is that the Moore campaign has tried very hard to not make this about what Moore may or may not have done. They`ve just tried to discredit the entire reality that these women have presented.

And it`s a similar play book page to what Donald Trump has done, in many cases, which is you have a reality that you don`t like. So, you present an alternative one. Facts are very fungible.

You create your own story and you tell people that anything that doesn`t agree with that is a lie, it`s fake news.

MELBER: And in some sense, when you say that about people, there`s an argument that you`re trying to disappear people themselves, which is a big problem, but a big part of the debate.

What I want to do is fit in a break. We`ve got special election coverage. Krystal, Michelle Bernard, please stay with me. I`ve got something else to ask you about.

Leah, Michelle Cottle and Laura, thank you very much for being a part of our show tonight.

Coming up, there is a lot of explosive energy here, including Donald Trump accused of trying to "slut shame" a leading Democratic senator.

And the other big story, the Trump legal team is out on all cylinders even with this new special election day. They`re calling, number one, for a second special counsel to investigate the DOJ itself; and number two, Ty Cobb making some news with a big claim. I`m going to tell you later in the show.

Also, another big issue that could play a big role that`s not getting enough attention. It has to do with children`s health.

All that ahead. I`m Ari Melber and this is a special edition of THE BEAT on MSNBC.


MELBER: Welcome back to our special election coverage. All eyes on Alabama. Right now, tonight, residents heading to polls with just over an hour left in this whole race.

But Donald Trump has viciously attacked a leading senator and thus wedged his way back into the news. Sen. Kirsten Gillibrand saying the attack is a "sexist smear."

Trump writing that she would come to his office "begging" for campaign money not so long ago and would "do anything for them."

Gillibrand says the claim that she would do anything money is a failed attempt to silence her.


SEN. KIRSTEN GILLIBRAND (D), NEW YORK: It was a sexist smear attempting to silence my voice and I will not be silenced on this issue. Neither will the women who stood up to the president yesterday and neither will the millions of women who have been marching since the women`s march to stand up against policies they do not agree with.


MELBER: Sen. Elizabeth Warren also jumping in to say President Trump was trying to "slut shame" the New York senator.

This morning, MSNBC`s Mika Brzezinski put the people who work for Trump in the White House on blast, saying it`s time to draw a line.


MIKA BRZEZINSKI, MSNBC HOST, "MORNING JOE": For the people who work for you, you need to act. Sarah Huckabee Sanders, good luck today in the briefing.

But everybody else, working around the president, if your day is not consumed by getting him to take down that tweet, please leave. You`re worth nothing.

You don`t care about this country. You don`t care about women. And you will support a man who does something like that. Let`s just say it. He is suggesting that Kirsten Gillibrand would have sex with him in order to get campaign contributions? The president is actually tweeted that this morning.


MELBER: Joining me is Vox Media`s Liz Plank and Krystal Ball back with me.

Krystal, walk us through what the president is doing and alleging with this type of "politics" and the response we`re seeing from Democrats.

BALL: Yes. Well, I mean, just when you think that he can`t stoop any lower, he manages to. And picking on Kirsten Gillibrand, he has got a fighter on his hands because she`s certainly a fighter.

Look, this is a timeless technique used by men when women step out of line of where they think they should be. And it`s called slut shaming. And every woman in America who has ever tried to do anything that was uncomfortable for a man around them has likely found themselves victim of this.

So, I think Mika is right to call out, not just the women around the president, but every person around the president who just lets this go is absolutely complicit in this kind of view and treatment of women and of a respected United States senator.

LIZ PLANK, SENIOR PRODUCER AND POLITICAL CORRESPONDENT, "VOX MEDIA": Yes. I mean, what Donald Trump did today is sexual harassment. Full stop.

If my boss had tweeted something, insinuating that do I sexual favors to get money, I would probably have a very strong case for sexual harassment.

And it`s interesting because we have a tape of Donald Trump bragging about getting away with sexual assault. But we don`t need a tape of Donald Trump getting away with sexual harassment. He does it all the time in broad daylight. He did it this morning with this tweet. He has done it to Mika Brzezinski, the horrifying facelift tweet, which I don`t even want to bring up. I would argue, he did it to Hillary Clinton during the last debate where he followed her on stage and physically intimidated her.

This is what he does. And he doesn`t think that there`s anything wrong with that.

MELBER: I think you both put it so well and give us the larger context, which is important, especially on a night like this with Donald Trump actively campaigning for Roy Moore, a candidate like that.

I want to play the White House response. There are many ways that a government response might response or address the questions raised about the president`s comment. But, instead, Sarah Huckabee Sanders appeared to try to blame the critics and try out some kind of political project defense.


UNIDENTIFIED FEMALE: Does Gillibrand owe an apology for the misunderstanding of a president`s tweet this morning because many including the senator thinks that it`s about a sexual innuendo.

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: Only if your mind is in the gutter would you have ready it that way.

Obviously, talking about political partisan games that people often play and the broken system that he`s talked about repeatedly.


MELBER: Liz, what is that counterattack?

PLANK: I mean, that`s just what the Trump administration has done, I mean, almost every single day since they`ve been in power, which is deflect and project on to others what they do themselves.

What`s so interesting - and again, on the eve of the election tonight in Alabama, if Donald Trump isn`t a predator, why does he constantly align himself with alleged predators? Why is he aligning himself with an alleged child molester in Alabama? During his campaign, why did he go out of his way to align himself with Roger Ailes, with Bill O`Reilly, after they were accused of different forms of sexual harassment. In the 90s, he also defended Mike Tyson when he was accused and convicted of rape.

So, if Donald Trump, again, has nothing that he is hiding, he is not a predator, all these women are lying against him, why doesn`t he want to prove it? Why won`t they just let an ethics investigation happen for that cloud to be lifted?

MELBER: Right. And this is on the night of the special election with him digging in on these issues.

Liz Plank and Krystal Ball, thank you both.

PLANK: Thank you, Ari.

BALL: Thanks.

MELBER: President Trump`s lawyer now calling for a new special counsel to investigate who? The Justice Department. I have a special report explaining why that matters tonight.

And some other breaking news on the Mueller probe. This just came into the newsroom. The White House lawyer says he has an announcement. I`ll explain next.


MELBER: Alabamans rushing to vote right now before polls close in the next two hours. Republicans trying to defend a Senate majority that can swing with the change of just two seats. It all happens as the nation`s political class is obsessing over Alabama today.

And yet, President Trump has a lawyer who just uncorked a call for a new special counsel to investigate the DOJ and the FBI.

Today, Trump lawyer Jay Sekulow citing a Monday night "Fox News" report that a senior DOJ official Christopher Ohr is married to a staffer for the firm behind the Trump Russia dossier.


JAY SEKULOW, ATTORNEY FOR DONALD TRUMP: House Intelligence Committee staff uncovered that Ohr met last year with both Christopher Steele, the former British spy, who authored the dossier with input from Russian sources. And that Ohr also met with last year with Glenn Simpson, the founder of Fusion GPS; Nellie Ohr, an academic Russia expert and the wife of Bruce Ohr, worked for Fusion GPS last year.


MELBER: Sekulow telling "Axios" today the Department of Justice and FBI cannot ignore the multiple problems that have been created by these obvious conflicts of interests. These new revelations require the appointment of a special counsel to investigate, a call for a second special counsel during a period when some Trump allies have been attacking Special Counsel Mueller`s probe.

Now, I asked Sekulow myself if this new special counsel request is some kind of effort to turn the tables on the direction on the Justice Department and Mueller specifically. He is a DOJ employee.

Sekulow telling THE BEAT, "this is about an alleged conflict regarding Fusion GPS and Bruce Ohr and it has nothing to do with Bob Mueller or Mueller`s team.

Sekulow`s statement in the Fox supporting sites are not about Mueller and the push comes amidst escalating attacks on Mueller as Rachel Maddow noted last night.


RACHEL MADDOW, MSNBC HOST: A pretty good portion of the American right has decided to declare that the new conservative crusade in America will be that former FBI Director, Special Counsel Robert Mueller should be fired. That`s the new crusade. Some switch somewhere flipped.


MELBER: A lot happening right now when you take a step back and look at it. The White House legal team stresses it is cooperating with Mueller turning over evidence, doing plenty of interviews and they say they`re doing that regardless of the outside conservative media. Sekulow has also raised questions before about Jim Comey`s actions in the road that led to Mueller`s appointment.


JAY SEKULOW, LAWYER OF DONALD TRUMP: An illegally leaked memo of conversation that`s he had with the President of the United States were the basis for which a special counsel was put in place.


MELBER: Now, let me be clear and let me be fair. Lawyers often have legal strategies that run on multiple tracks. They can cooperate with a probe while laying a groundwork for later questions or challenges or lawful appeals. That`s their job. But let`s be clear tonight as this call for a special counsel rocks Washington. A second special counsel would require evidence of a crime, number one and a conflict, number two, and something that the public interest warrants, number three, under the rules. So even if you presume there is a conflict for the DOJ investigating its own lawyer with ties to the Trump-Russia dossier, neither the Fox News report nor the President`s lawyer have said what the alleged crime here would be because conflicts lead to recusal not typically jail.

And having a spouse working at an Intel firm is not typically a crime. So there`s a lot going even during the night of the Alabama Special Election with the White House. For the first time this year, saying they want a new special counsel. And that`s not all. As I was a walking on set tonight, we got this news. A White House lawyer saying on the record, "All the White House interviews are over." That is the first time we`ve heard anything that definitive, so a lot coming out of the White House legal team right now. All eyes, of course, is still politically on Alabama and the Roy Moore race. As Moore`s wife was saying last month, we hear more about Moore and less about Russia.


KAYLA MOORE, WIFE OF ROY MOORE: All of the very same people who were attacking President Trump are also attacking us. I personally think he owes us a thank you. Have you noticed you`re not hearing too much about Russia?


MELBER: Have you? Well, I`m going to bring California Congressman Eric Swalwell who serves on the Judiciary Committee. Good evening on a very big night. I want to ask you point blank, is there in your view, grounds for any kind of second special counsel and what is your response to the President`s lawyer saying that their call is not about Bob Mueller`s probe?

REP. ERIC SWALWELL (D-CA), HOUSE JUDICIARY COMMITTEE: Good evening. Now, there are no grounds for this call. It actually is more obstructive behavior and it is not what cooperating with an investigation looks like, you know. And this is in furtherance of you know, obstruction that we`ve seen in the past week. The President and his son are now asserting an attorney-client privilege that they believe prevents Donald Trump Jr. from telling the House Intelligence Community conversations he had with his father about the June 9th meeting where the subject setting at the meeting was Clinton-Russia, private and confidential. And so you know, they do not want to cooperate. They want to obstruct, they want to delay, they want to disrupt and I just see this in furtherance of that.

MELBER: When you say obstruct Congressman, do you mean that you interpret this as an effort to obstruct the Mueller probe or are you saying something more broad?

SWALWELL: I believe this is an effort to undermine and obstruct the Mueller probe. But I also believe if he were to fire Mueller to continue along the line of obstruction, that would be obstruction of justice which that would be grounds for referral to House Judiciary Committee.

MELBER: Let me play for you some of what we`ve heard recently because we don`t know exactly why we`re hearing so much all of a sudden but there were days after Flynn, days of conservative media criticism. And now as I mention, two different avenues coming out of the White House legal team. Here`s some of the media criticism on Fox News and elsewhere of Bob Mueller.


SEAN HANNITY, HOST, FOX NEWS CHANNEL: Another day, another story that exposes just how corrupt Robert Mueller`s team are. Robert Mueller`s team is hyper-partisan, anti-Trump, abusively biased and many unethical.

UNIDENTIFIED MALE: I`ve never seen anything as corrupt, politically corrupt as one special counsel, that of Robert Mueller.

JEANINE PIRRO, HOST, FOX NEWS CHANNEL: There is a cleansing needed in our FBI and Department of Justice. It needs to be cleansed of individuals who should not just be fired but who need to be taken out in handcuffs.


MELBER: Is that criticism fair game or do you have concerns about it?

SWALWELL: No. It is not fair game. You know, Bob Mueller, Purple Heart recipient, is braver on his weakest day than Donald Trump or anyone on his team on their best. I mean, he is somebody who served our country honorably, appointed by a Republican, led us through the reforms needed after September 11, and is the person that we need right now. And I believe that whatever he finds, the country will accept. And actually, I hope that Republicans in Congress must speak up and put an end to this nonsense, this effort to drag his name through the mud to you know, further Donald Trump`s narrative on what happened with Russian interference.

MELBER: Congressman Eric Swalwell, thank you very much. I turn now to Ron Hosko, a former Assistant FBI Director. Ron, I didn`t know that during our Alabama Special Election coverage, we would be zeroing in on a lot of news coming out of White House. Dealer`s choice, your view of the call for the second special counsel, the claim it has nothing to do with the Bob Mueller probe, and the announcement on the record by a White House Counsel Ty Cobb that all White House Interviews are, "over."

RON HOSKO, FORMER ASSISTANT DIRECTOR, FBI: Well, let me go with the former. I won`t go as far as the Congressman but I do see this as really a distraction. First, the Department of Justice has an inspector general. That inspector general is currently taking a look at Jim Comey`s decision making, the involvement of the FBI Deputy Director in the Clinton investigation. And I think that that inspector general has repeatedly shown itself very independent of the Department of the FBI of the components in their reviews of their work. So I think that inspector general is very capable of taking a look at --

MELBER: Right. But Ron, what you know -- I just want to make sure everyone understands as watching. You`re making a distinction that Mr. Horowitz, the internal police watchdog there can look at whether any policies were violated and they were already looking at that with Jim Comey. But it`s not nothing I don`t think when a lawyer who works for the President is calling for a criminal probe. A Special Counsel wouldn`t be about policy. It would be the idea there`s an alleged crime.

HOSKO: Yes. And as you tick off the requirements to designate a special counsel, I don`t see them as being met. But I do see this as perfect fodder for the inspector general to look at Bruce Ohr, to make a hard determination and potentially, a fairly quick determination as to whether he has met his ethical requirements within the department, disclosing the relationship and the potential for a conflict of interest. And then taking a look at whether Bruce himself, and in full disclosure, I know Bruce Ohr. I worked with him in my time at the FBI. Whether Bruce participated in meetings, whether he had an interest in the outcome of meetings and determination --

MELBER: Well, Ron, if you know him, and I`ve talked to some of these people, I`ve talked to Jay Sekulow, if we know these people, maybe this segment needs to be investigated. That is an investigation joke about a serious topic. But the last thing I got to get your comment on is, Ty Cobb who speaks to the press, who I`ve interviewed and it`s helpful when he does speaks on the record. He`s saying something on the record. He`s saying the White House interviews are over in the Mueller Probe. Could that be true?

HOSKO: I can`t see how it would be. You know, frankly, I see this as an investigation by Bob Mueller and company that would take many, many months and potentially a couple of years. You`re talking about a lot of people, a lot of transactions, overseas transactions, transactions many levels, probably banking and financial transactions with foreign institutions. I think that`s a complicated case that`s going to take months and months and months. I`d be shocked if it`s over.

MELBER: Ron, I won`t ask you about Alabama.

HOSKO: Thank you.

MELBER: That`s what we`re going to go back to next. Thank you as always for your law enforcement expertise. Next, we go live to Birmingham. New results on the exit polls of what`s going on there. And how did voting laws affect tonight`s Alabama race and were they discriminatory? I have a man who`s suing to overturn the voter I.D. law, a special guest later tonight.


MELBER: Welcome back to MSNBC special election coverage. We`re looking at live pictures there, a lot going on in Alabama. We are close now to polls closing. 8:00 p.m. Eastern so just under an hour and a quarter. Let me tell you about some of the exit polls. We don`t know anything about who`s going to win but we do know that 60 percent of Alabama voters said they have made up their mind a long time ago, before November, very significant in this race because that was before the Washington Post expose that alleged sexual misconduct against Roy Moore, which we can tell you first broke November 9.

With a lot going on, I want to get out to the field. CNBC`s Editor at Large John Harwood in Birmingham. He`s right there over the shoulder at the Doug Jones election night headquarters, which could be a big night or a sad night there. We just don`t know. And Michelle Bernard is back with me. Mr. Harwood, what are you seeing on the ground? What did you learn today being there and how are you parsing what I continue to stress are mood exit polls, not results exit polls. But it suggests this was a split decision at least for a lot of people who talked to the exit pollsters.

JOHN HARWOOD, CNBC EDITOR AT LARGE: I would say there`s cautious optimism among Democrats about this race, Ari. At no point in the campaign have I ever heard any of the Doug Jones people, even at the lowest point for Roy Moore, say they thought we have they won or we`re on track to win. But at no point have I heard them say, we`re out of the game. They`ve got some encouragement from the Fox News Poll yesterday showing Jones up by 10. But when I talked on a Democratic strategist today, he said no, we don`t think that`s right. We think it`s going to be on track for a very close outcome. And the exit poll number that I`ve seen so far, it`s preliminary of course. But if we get to the end of the night, and the African-American vote is 30 percent of the electorate in Alabama, I think that is good sign that optimism for the Jones campaign could be justified.

MELBER: Michelle, one of the interesting things we do look at is talking to people about how they feel about the candidate they supported. And we`ll put those exits up on the screen which were just coming in brand new here tonight. When you talk about Democratic Party, Alabama voters there, mostly unfavorable for the Democrats and they were also mostly unfavorable for the Republicans. There`s also though a question about what describes your vote when you strongly favor a candidate. You see there, the Republicans also unfavorable, so people don`t like either party in Alabama right now. When you talk about Moore though, he has a lot more people who say, about a third say they like him with reservations whereas Jones has a much more united strong front. That would make sense given the allegations but it would also suggest that a fair number of Republicans stayed with Moore despite those reservations.

MICHELLE BERNARD, PRESIDENT, BERNARD CENTER FOR WOMEN: Yes, yes, absolutely. And you know, the polls -- the polls are showing it, anecdotal evidence, when you talk on voters that support Roy Moore. It is pretty clear, I don`t know if you saw, you know, over the weekend, Ari, a segment that Frank Luntz did for Vice. Where he -- you know, interviewed a focus group of Republican voters who support Roy Moore. And it appeared to me at least that there is absolutely nothing that Roy Moore could do that a certain portion of the electorate will find so unconscionable that they would either stay home or vote for his opponent. So the big question tonight again will be, what are women voters going to do and what are African-American voters going to do?

MELBER: Right. And I have to -- I have to jump in with some more breaking news. John Harwood, a report here on calendaring. The Senate Republicans making it clear tonight even before the polls close, they will meet they say at 10:00 a.m. tomorrow, ready to discuss "next step if Roy Moore wins." This is according to multiple sources confirmed by NBC News. The meeting scheduled for 10:00 a.m. in the Capitol. What if anything does that mean?

HARWOOD: Well, Republicans are trying to protect themselves from the stink of Roy Moore if he wins the race. They want the vote, they want the seat. President Trump wants the seat for his agenda, for the tax bill among other things, although that may be done before the new senator gets here. But Republicans are trying to so in a way that prevents other Republicans from suffering the burdens of being associated with Roy Moore.

MELBER: Yes, and I`m just --

HARWOOD: And that`s why, remember --

MELBER: Go ahead.

HARWOOD: -- a while ago, Mitch McConnell said that he believed the women and he thought Moore should step aside. Moore didn`t step aside so they want him to win but they need some protection as they go into 2018.

MELBER: Yes, and I`m just reading more from this reporting that we just got in. again, an unusual night for American politics. Frank Thorp writing, McConnell, and other Republicans have said Moore would face in almost immediate investigation from the Senate Ethics Committee as you alleged. That`s the Capitol dome, that is furious negotiations and planning going on tonight. Hard to think of another election special or otherwise where on the night of the election before the polls close, there was talk of how an ethics inquiry would proceed in Washington, unusual to say the least. And John Harwood, we will be watching the room you`re in tonight to see whether it is boisterous or not. John Harwood, Michelle Bernard, thank you, both.

BERNARD: My pleasure.

MELBER: Up next, the turnout question in Alabama and whether Republicans have tried to suppress the vote by certain people.


MELBER: -- right now at more live pics in Alabama. This is the scene as the polls close in an hour and nine minutes. Now on election nights we often focus on who`s voting. But Alabama`s strict voter I.D. rules could shape tonight`s race based on who didn`t vote. Republicans added these photo I.D. rules in 2011. And while there can be neutral reasons for voter I.D., Republicans in Alabama were caught making other arguments like suppressing the black vote. One legislator saying the black voters were "illiterates and aborigines." Or take Senator Dixon who voiced a concern that the right to vote without showing I.D. was allegedly "beneficial to the black power structure." All right, or take the Alabama Republican in charge of elections, John Merrill. You may remember, he told THE BEAT last month he was supporting Roy Moore but not endorsing Roy Moore.


JOHN MERRILL, SECRETARY OF STATE, ALABAMA: The evidence that has been introduced, I need to continue to see what`s out there. I need to continue to hear information.


MELBER: But Merrill, who ultimately was a Moore supporter, says people who don`t clear the state`s hurdles to voting are "lazy."


MERRILL: If you`re too sorry or lazy to get up off of your rear and to go register to vote, or to register electronically, and then to go vote, then you don`t deserve that privilege.


MELBER: Do you have it as a privilege? A lot of people say voting is a right and Alabama is actually been making it even harder to do, closing 31 offices that provide the I.D.s you need to vote. Now, will any of this shape tonight`s results that have been pouring in now an hour and six minutes? Well, the New York Times` Scott Douglas writes after Alabama implemented a strict voter I.D. law, turnouts in its most racially diverse counties declined by almost 5 points. And the last time Roy Moore ran for office, he won by 4 points. I`m joined now by Scott Douglas, Executive Director of Greater Birmingham Ministries, a group suing to block the voter I.D. law. Sir, thank you for joining me. This is an important part of the election night that sometimes get lost in the shuffle. What do you want people to know?

SCOTT DOUGLAS, EXECUTIVE DIRECTOR, GREATER BIRMINGHAM MINISTRIES: I just want people to know that voting is a right that was fought for and blood shed for here in Alabama and Selma in 1965 to have America live up to its promise of equality and justice for everyone. It comes to the hard-earned thing and is something we won`t let slip by just because there`s shenanigans of greedy politicians who want power above everything else.

MELBER: And who in your view, as you`ve been writing this about this is affected most when you have these restrictions and combined with the policy choices to close these offices?

DOUGLAS: Well, I`ll start with the second part of the question about policy choices. Those who represent Alabama should represent the voices of all Alabamians. And when a section of Alabamians have their voices muted by the imposition of substantially another form of poll tax, that is a financial burden to secure or obtain the right to vote, then that`s absolutely wrong. And so the voices of all Alabamians aren`t even heard. This is particularly true of African-Americans and poor whites for that matter and poor Latinos for that matter.

MELBER: And while I have you here, as someone who knows these issues so well, how much of Roy Moore`s potential appeal that`s being tested here the next hour do you think relates to his views and policies on civil rights and race?

DOUGLAS: Oh my goodness. This is a throwback to George Wallace in 1962. Not even the George Wallace of 1982 when he apologized that he`s using the race card and fear and racial divisions to separate people, particularly working people, who have common cause for free public education, a better future for their kids, affordable housing, good transportation, public transportation. Those interests we share. But racism and appeal to racism keeps us divided still.

MELBER: Scott Douglas, Sir, I read with great interest your work on this and I appreciate you joining our special coverage tonight.

DOUGLAS: Well, thank you very much, Ari.

MELBER: And we -- we`re going to fit in a break and be right back on this big night.


MELBER: We`re looking at live shots of two places in Alabama that will hold likely very different portions tonight. The Roy Moore headquarters, the embattled judge there in Montgomery, Alabama. On the right side of your screen, Doug Jones headquarters where we heard reports tonight about "cautious optimism" but no one knows anything until we get to the next hour and the polls close. There`s a very special edition of "HARDBALL" up next. That is a show I would not miss on a night like tonight. I`m Ari Melber signing off for THE BEAT. We`ll see you soon. "HARDBALL" with Chris Matthews starts now.





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