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The Nixon precedent that my protect Mueller Transcript 1/26/18 The Beat with Ari Melber

Guests: Laurence Tribe, Barbara Mcquade, Chuck Rosenberg, Bruce Udolf, Tiffany Cross, Byron Dorgan, Chuck Creekmur, Madison Gesiotto

Show: THE BEAT WITH ARI MELBER Date: January 26, 2018 Guest: Laurence Tribe, Barbara Mcquade, Chuck Rosenberg, Bruce Udolf, Tiffany Cross, Byron Dorgan, Chuck Creekmur, Madison Gesiotto

ARI MELBER, MSNBC HOST: Good evening Chuck. And thank you very much.

President Trump is about to land back in Washington this hour, his first time on U.S. soil since these reports that Donald Trump ordered the firing of the special counsel Bob Mueller who is investigating him all the way back in June. The plan you may have heard was only stopped because of a threatened resignation from Donald Trump`s lawyer Don McGahn. This is big.

The top Democrat investigating Russia today says the news makes Trump look guilty.


UNIDENTIFIED MALE: This President has continued to say there`s no there there. Well he is acting in absolutely the opposite way of someone who had nothing to hide.


MELBER: This "New York Times" report was followed by a similar account with other publications like NBC News, "the Washington Post," "FOX News," together these accounts lay out a picture of a President looking for any way to hobble this Russia probe from firing Mueller to firing the man overseeing Mueller, Rod Rosenstein, who was of course appointed by Donald Trump.

Now one thing we have not heard from the White House is a specific denial. The reporter who broke the related story this week of a threatened resignation by another person, Donald Trump`s FBI director said today the lack of any denial is remarkable.


UNIDENTIFIED MALE: This is absurd, let`s just remember that, you have the President saying it is fake news and no one else in the White House denying it. That`s insane.


MELBER: Insane. In a moment, I will speak about all of this with former prosecutors Nick Ackerman and Barbara McQuade.

But I begin with the special one-on-one interview with a Harvard professor who knows his way around the constitution. Laurence Tribe argued dozens of cases before the Supreme Court and vice president Obama and he has a forthcoming book, "to end a presidency, the power of impeachment."

Thanks for joining me on a significant news night. Your view as a legal matter of what this new information about this attempt to order the firing of Bob Mueller means to this investigation.

LAURENCE TRIBE, HARVARD UNIVERSITY CONSTITUTIONAL LAW PROFESSOR: Thanks for having me, Ari. I think this means a great deal. Before we learned that in June, the President had actually ordered the firing of the special prosecutor, Robert Mueller, we knew a great deal already. We knew that he had fired Comey, he had tried to make it look like he was firing him because he didn`t like the way he handled Hillary Clinton`s emails. But he told Lester Holt on national TV that it had to do with the Russia thing.

We knew all kinds of things about the President. But all of them were a bit ambiguous. Maybe he simply didn`t know the rules of the game. He didn`t know the ropes yet. He was clueless. But now we know that after a conversation with Don McGahn, his White House counsel, who must have warned him of how serious a problem he would be in if he had another Saturday night massacre of the kind that Nixon had. That after being warned he was still so determined to prevent the probe into the Russia thing, into the way Russia played a role in our election, that he ordered McGahn to fire special counsel.

MELBER: And Professor Tribe, I just want to pause on the point you make, before you go on, you just sort of swung through very quickly, because I know how fast your brain works, a very key observation. You are saying that your understanding of this role and your knowledge of the way presidencies and the White House counsel`s work, is this entire operation would have necessarily included Don McGahn already discussed and warned to the President how serious this would be?

TRIBE: That`s certainly right. Don McGahn is a professional. He has got a reputation as a very fine lawyer. He would be committing malpractice as White House counsel if he didn`t alert the President. So the President said I don`t care. I want him gone. I want him gone. And I order you to get rid of him. And there are various things that Don McGahn could have done to carry out that crime. And it would have been a crime because it clearly would have been an ongoing obstruction of an important piece of the system of justice.

But not wanting to commit a crime and perhaps worried about how he had already been implicated in the firing of Comey, and in trying to pressure Jeff Sessions, not to recuse himself, Don McGahn did what any decent lawyer would do and that is to say, Mr. President, I will not commit this crime, I can`t do it. In fact if you make me do it, I`ll quit. And of course at that point, the President backed off. But it shows a great deal about his corrupt motives and eliminates the possibility of any defense that he was simply a novice at the political game and he didn`t know what he was doing, it eliminates all that, that but for McGahn`s threat to resign, he would have carried this out. And he`s been talking continually about considering the possibility of firing Robert Mueller.

Now there`s no conceivable explanation of that, other than the fact that what Robert Mueller knows and is likely to bring forward is terribly incriminating for the President. And I think we are right on the verge of some kind of explosion. When Miller says I want to interview you, and Trump, after getting advice from his lawyer might say, well, I really don`t feel comfortable with it, if that`s what he says, he will be ordered to appear. He will be subpoenaed. If he defies that subpoena, he will be defying a court order and that will lead to a constitutional explosion, even among loyal Republicans.

MELBER: And professor, when you say that you know this would have been an illegal act, and that Don McGahn knew it would have been an illegal act, in plain English, how do you know that?

TRIBE: Because I have read the United States criminal code. It would not be simply a potentially impeachable offense. It would be an out and out crime. Because it would be an interference with an ongoing investigation with a corrupt purpose, a corrupt purpose simply means to hide the truth to protect yourself or your inner circle or your family.

You know, when he fired Comey, it was at least conceivable that he was doing it for one of the other reasons he gave, though not the reason he gave Lester Holt. Maybe he was doing it because he thought Comey had not conducted himself well across the board. Comey after all was the head of the whole FBI. Mueller was appointed because Comey was fired and Mueller`s whole mandate was to look into the role of Russia, hostile foreign power, in interfering with the central act of American democracy, our Presidential election. So Donald Trump can`t plead ignorance. He can`t I plead, you know, (INAUDIBLE). He knows what he is doing. And what he is doing is using, in this case, it would have been Don McGahn to interfere with an ongoing investigation for a truly corrupt reason. And that would have been a crime, a federal crime, seriously punishable.

MELBER: Professor Tribe, you have laid out with great clarify why there is a federal criminal liability for the person who would carry out that order, as well as the related constitutional implications.

I appreciate you joining us on this big news night, Harvard law professor Laurence Tribe. Thank you.

TRIBE: Thank you, Ari.

MELBER: For more on this historic news, I turn to former Watergate special prosecutor Nick Ackerman and former U.S. attorney Barbara McQuade, two people who have given a lot of thought to this situation, the Nixon history on the massacre side as well as this possibility. Because up until last night, all of this, I think for us was schooled in hypotheticals, some rumors, because there was talk in June, but never a bullet proof full force multiple publications saying this was a Presidential order.

So Barbara, picking up where professor tribe left off. Is it a fair reading of the four corners of this act to say that there is no non-Russia probe reason on the facts to remove Mueller? And does it looks like interfering with the Russia probe?

BARBARA MCQUADE, FORMER U.S. ATTORNEY: Well, it certainly looks like that. I think Robert Mueller would probably want to explore all of the facts about this before saying that it was a slam dunk case of obstruction of justice. It certainly is additional evidence, I think that bolsters the obstruction of justice charge, but I don`t know that you have it alone. That corrupt intent is so important, understanding the motivation.

You know, President Trump says he was offended that Robert Mueller interviewed for the job of FBI director one day and then was appointed special counsel the next, you know. He is someone who perceives the FBI director as someone who works for him personally, is now on the other side, maybe he did have some thought that this was in some way disloyal.

So I think you do have to look into what was his intent. But I agree with Professor Tribe that there is very strong evidence of obstruction of justice here. I think there is also evidence of something else that in the law we refer to as consciousness of guilt. That is some act you do that indicates that you are guilty. If you had nothing to hide, you would welcomes the opportunity to be exonerated by someone with the reputation of Robert Mueller.

MELBER: And Nick, I want to play for you an incredible piece of tape of sound from different people, including the President talking about this. I think we have enough evidence to say who is lying in this tape, and who is simply totally misinformed and out of the loop, at least based on these new accounts. Take a listen.


UNIDENTIFIED FEMALE: The President is not discussing firing Bob Mueller.

UNIDENTIFIED MALE: Mr. President you thought about or considered leading to the dismissal of the special counsel. Is there anything Bob Mueller could do that would send you in that direction? DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I haven`t given it any thought.

UNIDENTIFIED MALE: Are you considering firing Robert Mueller?

TODD: Is he setting the stage for firing Mueller?


TODD: There`s no way he`s going to fire him.

UNIDENTIFIED MALE: There`s no conversation whatsoever in the White House.

UNIDENTIFIED MALE: Are you going to fire Robert Mueller?

TRUMP: No, I`m not. What else? What are you surprised?

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: For the 1,000th time, we have no intentions of firing Bob Mueller.


MELBER: The most high ranking federal official in that series of clips is the one that we know is lying on this.

NICK ACKERMAN, FORMER WATERGATE PROSECUTOR: That`s right. And just to follow up on what both of the guests have said tonight, there is a very strong motive here and that motive all relates to Michael Flynn.

If you follow the timeline in this, why was it that he fired Comey? Because Comey didn`t drop the investigation into Michael Flynn. Michael Flynn back in December of 2016 was involved in a conversation with a Russian ambassador that he later lied about in January.

The evidence is pretty clear that Donald Trump knew that Flynn lied at the time. He didn`t know beforehand because Flynn didn`t know what he was going to be questioned about. But then in May 17th, after Comey is fired, suddenly Robert Mueller is appointed. And then on June 2nd, lo and behold, he takes over the Flynn investigation.

All of this relates to Flynn because Trump knows that Flynn can nail him and his son-in-law Jared Kushner. That`s the motive here that shows you an entire corrupt intent and why he wanted to stop this investigation dead in its tracks.

MELBER: And we have learned a lot from you about this case. We also sometimes learned from you about in the case you lived through.

I want to read from 1973, a report in the "Washington Post." This was five days after the President did fire a special prosecutor with a probe. And the quote is President Nixon embattled, suspicious and believed the special prosecutor`s office was embarked upon,` and you see it there, quote, "a political witch hunt." And Donald Trump plagiarizes this from Ronald Reagan, apparently he does it from Nixon, too, in words and deeds.

ACKERMAN: There is no question about it. I mean, actually, this would have been a bigger bloodbath than the Saturday night massacre. Because at least the Justice Department remained intact after Cox, the special prosecutor, was fired. In fact Elliott Richardson and Mr. Ruckelshaus, who is the deputy, got together with Robert Bork (ph) and decided that Robert Bork would be the one to fire Nixon administration couldn`t take over the department of justice and insert their own people.

Here, I think, and I really believe, that it wasn`t just Mueller that was going to be fired. It was going to be Rosenstein, it was going to be the attorney general, and it was going to be everybody else that was in that hierarchy. And it was clearly Trump`s plan to put all of his own people into that department of justice and basically take it over and gut the rule of law that we have in this country.

MELBER: And Barbara, this brings us to another foundational constitutional text, I`m speaking of course of the book "Fire and Fury." And I`m joking, there`s not a lot of law there, but there are extensive passages of Steve Bannon. When the book came out, it seems like, God, runs his mouth a lot. And now, I think some of those passages were different because it is Bannon being quoted as saying, fine, he thinks he can do anything. You can`t stop him. He think he would take out Rosenstein, take out the next people. And has quoted Bannon saying allegedly he told the president you will end up with the career people who are quote "even worse for you," Barbara?

MCQUADE: Well, I think the career people are those who are going to adhere to the rule of law, adhere to professionalism and make sure things are handled fairly. So yes, it is a little bit naive to think that by firing Jim Comey or firing Robert Mueller, you are going to end the investigation, because these investigations bring with them huge amounts of career people who are going to do their mission to follow the rule of law, and follow the evidence where it leads.

So I don`t know that firing any of these people is going to have the intended result when you have those thousands of career employees who are there, unless you can appoint people at the highest levels of leadership. That`s why I sometimes worry that if Jeff Sessions were to go and a new attorney general were come in place, who would be supervising the Russia investigation, that person could have some influence on the outcome.

MELBER: Absolutely.

Barbara Mcquade and Nick Ackerman, important conversation. Thank you.

Coming up, there`s new reporting on what President Trump was doing behind the scenes during all on this. I have an exclusive interview with the deputy to former independent council Ken Starr. And our Special Report on Trump and this Richard Nixon President. What the law says about why Trump can`t fire Mueller. That`s my Special Report tonight.

And all of this news coming out of the stormy Daniels interview, and reported hush money paid after this alleged liaison with Trump.


UNIDENTIFIED MALE: Have you been paid to keep quiet? Have you signed a nondisclosure agreement?


MELBER: I don`t know. I`m Ari Melber. You are watching "the Beat" on MSNBC.


MELBER: Today`s news doesn`t always happen today. The story rocking the Trump White House and aboard of potentially bordering an illegal attempt to fire Bob Mueller began in June of 2017.

So what was going on then? It was a big month for the Russia probe history almost every day on news broadcast. But on the very first day of that month, "the Times" reported Trump was thinking a quote "muzzling Comey ahead of public testimony."


UNIDENTIFIED MALE: Is the White House going to evoke executive privilege to prevent James Comey from testifying before the house intelligence committee next week?

SEAN SPICER, FORMER WHITE HOUSE PRESS SECRETARY: I have not spoken to council yet. I don`t know how what that - what they are going to respond.


MELBER: Four days later, Trump was still getting pressed about it.


UNIDENTIFIED FEMALE: Mr. President, what message do you have to Jim Comey ahead of his testimony?

TRUMP: I wish him luck.


MELBER: he wished him luck. And on June 8th, Comey dramatically revealed his story under oath.


JAMES COMEY, FORMER FBI DIRECTOR: He asked specifically for loyalty in the context of asking me to stay.

UNIDENTIFIED MALE: Despite your independence, he kept coming back to I need loyalty. I expect loyalty. Have you ever had any of those kinds of requests before for anyone else you`ve worked for in the government?



MELBER: Trump denied that account and also said there would be nothing wrong with demanding loyalty. A key Trump ally made waves then by openly stating what we now know was attempted at the time.


UNIDENTIFIED MALE: I think he is considering perhaps terminating the special counsel. I think he is weighing that option. I think it`s pretty clear by what one of his lawyers said on television recently.


MELBER: And by June 13th, Jeff Sessions was pairing congressional questions about Comey`s firing. Of course, Sessions joined that Rosenstein`s letter claiming the firing was about the Clinton email case which wasn`t true. Within a day "the Washington Post" confirmed Mueller was probing obstruction, moving from the potential crimes in the election to a potential cover-up.

Trump declared he was being personally investigated which is the opposite of what he was demanding Comey publicly say. We now know Trump tried to oust Mueller in June, the very month when all of these things were going south and Trump`s long quest to have the authorities say he was not under investigation, blew up in his face with authorities saying he was.

I turn now to another special guest, Bruce Udolf, has firsthand experience investigating a president in the unique challenges he worked on Ken Starr`s white water investigation and Bill Clinton as associate independent council.

Bruce, does the "New York Times" reports suggest Trump was trying to do something wrong?

BRUCE UDOLF, FORMER ASSISTANT INDEPENDENT CRIME WHITE WATER INVESTIGATION: It certainly does, Ari. It suggests that Trump -- that this was not a one off situation, as where he first asked for Comey`s loyalty. And then when he asked Comey secondarily to find it in his heart to give Flynn a pass and it also shows that it was another one off when he said that if he had known that Sessions was going to recuse himself, he would never have put him in the position of attorney general.

This is a man that now has been in office for about six months time. And he could -- he might be able to credibly claim in the first new days that he was sort of naive about the ways of Washington, him being just a real estate a tycoon in New York, he can`t say that with a straight face any longer by June of 2017.

MELBER: You are saying big difference between a slow learner and a no learner?

UDOLF: That`s right.

MELBER: And then you look at this Don McGahn situation, the White House counsel. Did he have any other choice if this it would have been an unlawful order?

UDOLF: No, I don`t think he did. I think he did the right thing.

TRIBE: Did the right thing, but did he do the thing you basically had to do?

UDOLF: Well, that`s right. When your boss tells you that he wants you to do something that you know in your heart is probability in all likelihood illegal, and it`s a disservice to the office that you are supposed to serve, then your job is to say, if you do that, I`m going to resign. I`m not going to follow that order. Which is what Elliott Richardson did and which Mr. Rucklehouse did it.

MELBER: Bruce, stay with me. I want to add to our discussion, speaking of people who have been in the ticket. Chuck Rosenberg was a chief of staff to that FBI director Jim Comey and experienced federal prosecutor.

And like Bruce, Chuck, you are also known to be pretty blunt and concise which works on the law and works great for these interviews, do you join Bruce`s view that bluntly that was both the right thing to do and the only lawful thing to do given the account of the "New York Times"?

CHUCK ROSENBERG, FORMER CHIEF OF STAFF TO FORMER FBI DIRECTOR JAMES COMEY: Yes. He has to be blunt and concise, Ari. It`s pretty clear to me what the President had asked McGahn to do assuming "the Times" report is correct, would have been in furtherance of an obstruction. So the answer is no, I`m not going to do it.

MELBER: And then you look at these congressional hearings which at times can be dry, but ultimately provide the public record under oath, which is incredibly important in a democracy with the rule of law. Take a look as we probe into June, look at Rod Rosenstein. I`m going to play the sound of him talking about this very thing that we now know that was headed towards him, this sort of scud missile that Don McGahn was willing to resign over.


REP. MATT CARTWRIGHT (D), PENNSYLVANIA: If you receive an order from President Trump to fire the special counsel Robert Mueller, will you do that?

ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: It doesn`t matter who gives me an order, what that order is, if there isn`t good cause, I would not fire the special counsel.


MELBER: Chuck, that`s him saying under oath that he wouldn`t do it. So if he had, hypothetically gotten his call from someone in the White House to do it, he is saying no. Would he then also have some obligation to inform the special counsel of this attempt?

ROSENBERG: I don`t know that he has to inform the special counsel of the attempt. In fact, Air, he might on good reason and principle decide not to tell the special counsel, because he wants the special counsel to function as independently as possible. But I have known Rod for years. I think he is a principle guy. And it strikes me he would have done what Don McGahn did. He would have said no or he would have resigned.

MELBER: And Bruce, when you take it all together and look at the Republican response, it has gone from focusing on basically random FBI agents to increasingly suggesting that the whole FBI is suspect, that maybe Mueller has unstated conflicts. Do you think the Republicans who at least are taking that view are potentially damaging the independence needed for this probe?

UDOLF: I do. And I also think that it`s, you know, to use a word that one of your earlier guests used, I think it demonstrates a consciousness of guilt at least when Mr. Trump makes reference to or trashes FBI agents or other people that are investigating him. You know, there`s an old saying in the law that when the facts are against you, you argue the law to the jury, when the law is against you, you argues the facts, and when they are both against you, you pound a table and you trash prosecutors. And that is exactly what Mr. Trump is doing in this case. And basically, I think that shows that Trump`s consciousness to guilt on his part.

MELBER: Fascinating and relevant. Bruce Udolf and Chuck Rosenberg, thank you both.

Up ahead, does Donald Trump`s failure to fire Mueller shed light on what the right wing is doing?

And my Special Report later tonight, the President for firing a special council and why the Nixon case could have been on Don McGahn`s mind and could be bad news for Donald Trump.


MELBER: -- other top story tonight, how this news that Donald Trump ordered Bob Mueller fired is putting heat on some conservatives who have defended a lot of other Trump moves but maybe not this one. Context was key, Mueller was, of course, a Republican appointed FBI Director, who was actually praised by top conservatives when he was first appointed. As the probe continues though and Trump aides began flipping, many Trump allies pounced. Steve Bannon`s Web site arguing Mueller was compromised just by being friends with Comey allegedly, members of Congress calling for his recusal without any big evidence and a drum beat began to push for Mueller`s ousting.


SEAN HANNITY, HOST, FOX NEWS CHANNEL: Robert Mueller needs to go.

UNIDENTIFIED MALE: Mueller needs to go, 100 percent.

GREGG JARRETT, ANCHOR, FOX NEWS CHANNEL: The President should actually demand that he resign. The American people should demand he resign.

NEWT GINGRICH, FORMER HOUSE SPEAKER: Mueller has a legal obligation to recuse himself.

UNIDENTIFIED MALE: The investigation was weaponized to destroy his presidency for partisan, political purposes.

UNIDENTIFIED MALE: The deep state has its clutches in, the Clinton machine has their clutches in and it`s been the special impeachment counsel from the beginning.

HANNITY: Mueller needs to get out.


MELBER: Get out. That last line is actually pretty key because Sean Hannity, as you saw, appeared to think firing Mueller was not only lawful but good, and yet this is amassing, you`re going to have to see this. When this news broke last night, first Sean Hannity denies it, then he struggles to process it and think it through on live T.V. and he goes from the denial to arguing that Trump has the authority and then he says, well, actually, maybe, um, this is a story best dealt with after a 24-hour pause.


HANNITY: At this hour, the New York Times is trying to distract you. They have a story that Trump wanted Mueller fired sometime last June and our sources, and I have checked in with many of them, they`re not confirming that tonight. And the President`s attorney dismissed the story and says, nope, no comment, we`re not going there. And how many times has the New York Times and others have gotten it wrong?

All right, so we have sources and I just confirmed to Ed Henry, that yes, maybe Donald Trump wanted to fire the Special Counsel for conflict. Does he not have the right to raise those questions? You know, we`ll deal with this tomorrow night.


MELBER: We`ll deal with this right now. Former Senator Byron Dorgan, a Democrat from North Dakota joins me and Tiffany Cross who is the Managing Editor of The Beat D.C., a Digital Publication with a great name, if I may say so. Tiffany, we`ll deal with this tomorrow night. What -- did we see a rare moment of actual revelation of watching Sean Hannity think that through?

TIFFANY CROSS, MANAGING EDITOR, THE BEAT DC: I love when he said he checked with his sources and nobody said anything but his own White House Correspondent Ed Henry had confirmed the story himself. This is what I find most interesting really about Sean Hannity and a lot of voices from the right. So these have been the loudest people who have championed law enforcement for the last few years. They have been this big blue lives matter people and how dare anybody disrespect law enforcement. Oh, except when it comes to this specific law enforcement agency and this specific president which is such hypocrisy and it`s really a disservice to their viewers because what we cut out that what happen right after that, Sean Hannity said oh, never mind we`ll talk about this tomorrow night and immediately they literally change the shiny object and cut to a car chase scene. And the discussion of all of this, I think we can`t lose back.

TAPPER: Well, Tiffany, I`m going to cover the car chase tomorrow night.

CROSS: And you`ll get a spike in ratings, I`m sure, every time you do that.

MELBER: If I could get a daybreak, every time I needed to work on a story, I got 24 more hours, I mean, that`s some kind of news division.

CROSS: Exactly. And -- but really, and the discussion in all this, think one thing we have to remember, Ari, is our democracy was attacked bid a foreign adversary, and so these good patriots who tune into Fox News every single night, surely they want to get to the bottom of this. So I`m really confused. The silence on the right is deafening and when they are talking about it, it`s just to undermine the investigation. And they have their own investigators investigating the investigators. It`s ridiculous.

MELBER: Senator Dorgan, you were in office and a lot of people in office make it a general habit to as Tiffany was mentioning, to salute and praise the people who put on a uniform and risk their lives, that`s local police, that`s the FBI, that`s obviously people around the world who do it in the name of the U.S. What do you think of the point she raises that that is another blatant part of the problem here for folks who want to savage the FBI for a political purpose.

BYRON DORGAN, FORMER NORTH DAKOTA SENATOR: Well, this is one more chapter in this psychodrama that doesn`t ever seem to end, and this chapter is even worse than the rest of them. And let me just say that you know, obviously this President seems to think that the rules don`t apply to him and probably the law doesn`t apply to him either. But I want to say this, I served in the House and the Senate for 30 years, and my special scorn is reserved for those in the House and Senate who come to the television cameras, breathless -- you know those old stories never buy something from somebody who`s out of breath -- breathless to try to destroy the reputation of Bob Mueller. I`ll tell you what, they should -- they should hang their head in disgrace. This is a man who was a U.S. Marine, a Republican, someone who served the FBI, the head of the FBI during 9/11, a remarkable patriot that we ought to be thanking and these people are trying to destroy his reputation, shame on them.

MELBER: Do you think the Republicans should stand up given this new report?

DORGAN: Well, who knows which Republicans might or might not stand up. But as I aid, I see a lot of them rushing breathlessly to the television camera to support whatever Donald Trump says or does. And they ought to know better than that. The fact is, the President denies things that are demonstrably true, despite the fact that he knows they`re true. So you know, he`s not believable at this point, Ari. I wish he was, I wish things were different, but he has no credibility, he`s not believable, and now he`s trying to set us up for a constitutional crisis. This country deserves better than that.

MELBER: And as we`re speaking, Air Force One is landing. This is the President returning from Davos, where he spoke about international economic issues, trade, and immigration. A trip that I think it is fair to say was completely overshadowed by the bombshell news at home, yet again the Russia probe dominating over the story is that that he wanted to tell. He briefly responded a reporter to a questions on it from Davos, and we`re looking at this evening landing of Air Force One.

The President, of course, descends in the normal practice, traditionally heads to the White House, occasionally will speak to a gaggle or speak to reporters and we obviously will keep an eye on that particularly if he speaks in any more a detail. As we watch that Tiffany, this is as I mentioned a trip that was overshadowed. I want to play for you briefly the shift because I`m -- we just spoke to a former aide, to Ken Starr, he initially said don`t go after Mueller, he has since joined the bandwagon that Senator Dorgan was just criticizing, while Paul Ryan has struck a different note, take a listen.


KEN STARR, FORMER UNITED STATES SOLICITOR GENERAL: Firing special prosecutors tends not to work, as we all learned from Watergate.

REP. PAUL RYAN (R-WI), HOUSE SPEAKER: I think in the best case for the President is to be vindicated by allowing this investigation to goon fairly and independently, so I think the best advice would be to let Robert Mueller do his job.


MELBER: If that`s your position, don`t you speak up now stand up and say, gosh, it sounds like you came so close someone was going to resign over it, don`t do that?

CROSS: So I think the Republicans had two positions. They`re either trying to play whack a mole to nail them down on a position or they their silence have been deafening. I do want to point out that Congressman Carlos Curbelo did speak out. One of the few voices on the Republican Party to say this is not acceptable and to interfere with this type of interference in an investigation. However, nothing from McCarthy, nothing from are Paul Ryan, nothing from McConnell. And I`m not surprised at this point. I think we have to stop waiting for them to speak up, I don`t think it`s going to happen.

MELBER: The Beat`s Tiffany Cross and former Senator Dorgan thank you both and we will go to break looking at these live pictures of Air Force One landing back from the President`s trip to Davos. And as we keep an eye on that, I will tell you up next a special report on the Nixon case that could save Bob Mueller even if the Trump still tries to fire him.


MELBER: Donald Trump ordered Bob Mueller fired, a plan that was squashed by Trump`s own lawyer. Tonight many are asking, what if Trump wasn`t stopped? Would Mueller actually have been fired? Could he still be fired? Is this bombshell New York Times report rocking the White House tonight As trump returns from Davos a story fundamentally about the past or the future? Well, in this special report tonight, I have a break down for of a huge problem for Donald Trump if his own employees don`t stop his reported efforts to oust Mueller, a federal judge could. This is the most important check on a runaway president. And it comes from the sordid history of the only president forced from office by impeachment proceedings and based on what we learned this week in the Times, this is a story Don McGahn and Rod Rosenstein know well and one Donald Trump may not know.

Trump`s orders to fire Mueller and the Deputy FBI Director were met with resignation threats, that sparks comparisons to the Saturday Night Massacre in October 1973, when Nixon`s attempt to fire a prosecutor investigating him led to a series of resignations calling into question whether Nixon was running a criminal enterprise. But the part of this controversy that applies the most to Trump is actually rarely emphasized because not only was the massacre a public controversy, it also led to a judge finding Nixon`s firing of that prosecutor illegal. That`s a precedent that Mueller, McGahn, and Rosenstein all know, it all began with this shockwave against the Mueller of that era, a prosecutor named Archibald Cox who Nixon tried to fire and then literally sent men with guns to try to close his office.


JOHN CHANCELLOR, NBC NEWS ANCHOR: Good evening. The country tonight is in the midst of what may be the most serious constitutional crisis in its history. The President has fired the man you just saw, the Special Watergate Prosecutor, Archibald Cox and he has sent FBI agents to the office of the special prosecution staff and to the Attorney General and the Deputy Attorney General and the President has ordered the FBI to seal off those offices.


MELBER: Seal off those offices. Now that was called a massacre because so many people resigned rather than carry out the potentially illegal order. But then what? Public outrage, criticism, but what happened? Well, some of the next legal moves are actually often forgotten in that history. Here is some rarely seen footage of a man known for a lot of fights in public life, Ralph Nader. He challenged Nixon`s firing in court just three days after the massacre.


RALPH NADER, CONSUMER ACTIVIST: Tomorrow we will file in Federal District Court a complaint challenging the removal of Mr. Cox from his position as special prosecutor and the attempted abolition of the office of special prosecutor by acting Attorney General Robert Bork under the command of Richard Nixon.


MELBER: His argument there is what Don McGahn surely had on his mind, a President ordering the firing of a prosecutor investigating the President may be the first word on the matter, but in our democracy, the last word goes to the courts.


NADER: The American people are confronted with a man who has consciously authorized crimes, condoned crimes, committed crimes, covered up crimes and now has overthrown the legal arrangement which was working to prosecute these crimes fairly and with due process of law. What this and most decisive obstruction of justice by Richard Nixon means is that every citizen in this land must strive to reclaim the rule of law which this tyrant has been destroying month by month, strand by strand. Our founders did not oust King George III in order for us to suffer King Richard.


MELBER: King Richard, or King Donald. That`s not meant as a compliment. In the case against Nixon`s firing took all kinds of twist and turns, it ultimately required members of Congress to file, not just as a private citizen in order to get the first victory but it actually came quickly, within a month, the federal judge ruled Nixon`s firing of that prosecutor was illegal. Nixon argued, like many Trump allies today that the President, well, he kind of runs the federal government, so what`s the big deal if he fires federal employees? But no, the courts ruled the deal is, this is a nation of laws and not even a president gets to pick the people investigating themselves which would put the president above the law. The judge ruled in that case, the prosecutor does not serve at the president`s pleasure and was not under, "presidential control."

That ruling lays out a rationale that could be used this year if Trump does go on to try to get the DOJ to fire Mueller. In fact, Mueller may already have, just like Ralph Nader there, a legal challenge written to his own potential future firing, after all, this is news tonight, but the Times reports Mueller himself learned about it long ago during his interviews and if Don McGahn didn`t perjure himself, he presumably would have told Mueller about it in his own November interview. Now the battle over Nixon`s massacre took a lot more turns, another prosecutor replaced Cox which made the Nader challenge less pivotal and because that prosecutor had basically a different law that he was operating other than what is being used by Mueller today. To be clear, it`s always possible today`s courts could interpret this whole thing differently and it depends on the facts and of course on the President.

But here`s the key, just like Nixon era, the day`s rules do prevent the President from personally firing the prosecutor. Mueller can only be removed "by the personal action of the Attorney General," which is now Rod Rosenstein since Sessions is recused and he can only fire Mueller for misconduct, dereliction of duty, conflict of interest for good cause which has to be specified in writing. That part is really important too because when it`s in writing, if the DOJ were to lie, a court is way more likely to reinstate Mueller. Say for example, if you fire an FBI Director, and you write that the reason was he was mean to Hillary, and then the President confesses, no, it was actually all about the Russia probe.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: He made a recommendation, but regardless of recommendation, I was going to fire Comey, knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself, I said, you know, this Russia thing with Trump and Russia is a made up story.


MELBER: That admission was not just problematic for the obstruction defense, it`s the kind of evidence that could get a judge to reinstate Mueller, even if the Trump administration goes on to try to fire him like Trump wanted and Rod Rosenstein knows that. Bob Mueller knows that. Does Donald Trump? TBD. In the Nixon case, the file ultimately turned from the prosecutor`s firing ultimately to replacement`s demand for the White House tapes, a battle that reach the Supreme Court and dealt a stinging loss to President Nixon and many Americans felt a win for democracy.


UNIDENTIFIED MALE: Good morning. The Supreme Court has just ruled on the tape controversy and here`s (INAUDIBLE) who has that ruling.

UNIDENTIFIED MALE: It is a unanimous decision, Doug, eight to zero Justice Rehnquist took no part in the decision, ordering the President of the United States to turn over the tapes.


MELBER: Wow. That`s what one end of a constitutional crisis can look like. You heard the reporter say unanimous decision and the anchor noted Nixon appointee Justice Rehnquist recused, there`s that word again because Rehnquist had worked for Nixon, just like Sessions has recused today because we have rules. Now that Nixon case, of course, turned on secret tapes which the court forced the President to turn over. Now we don`t know what the Mueller case will turn on. It`s not over. There could be secret evidence. It could exculpate Donald Trump. It could make him more innocent. We don`t know. This week`s evidence makes him look more reckless and less innocent. And as for tapes, they actually do exist in this case. They`re just not secret.


TRUMP: He made a recommendation but regardless of recommendation, I was going to fire Comey, knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story.



MELBER: It has been a week and it is Friday and I`m happy to say, it is time to fallback, "FALLBACK FRIDAY." My guest Chuck Creekmur, CEO of and Madison Gesiotto, a Conservative Commentator and former Trump Campaign Surrogate. You guys know what we do. We talk about who needs to chill or take a step back. Madison, who obviously needs to fall back?

MADISON GESIOTTO, CONSERVATIVE COMMENTATOR: You know, Super Bowl is just a week away and I`ve got to say, I`ve been watching -- first take I`ve been watching Skip. He`s got to fallback. Skip Bayless has got to fall back. Trying to come in and say that Tom Brady is more clutch man Michael Jordan, I can`t see it. I don`t see the argument. I don`t even think it`s a fair argument. They`re saying oh, you know, this is going to be maybe his sixth ring. Well, guess what, Michael Jordan only needed to do it with six, he didn`t need eight tries.

MELBER: Well, Jay -- you know what Jay-Z, Chuck, would say about Jordan, unlike M.J., I play for the team I own. That all I could contribute. You and Madison know more about sports than I do. Is that a fair sports point?


MELBER: It`s fair?


MELBER: All right, Chuck, who needs to fall back?

CREEKMUR: For me, I`m going to have to go with Google Home. Obviously, we know about Google Home. It`s sold millions and millions of units. It`s a unit -- it`s a speaker that allows you to talk directly to Google and get information and then play music. However, when you ask Google Home who Jesus is, it doesn`t have a definition. However, it does know who Satan is. It knows who Muhammad is and Buddha and even Beyonce, but Jesus Christ -- and yes, Beyonce is a religious figure to some people -- but not Jesus. No definition.

MELBER: To be fair, asking who is God is a tough question right, Chuck?

CREEKMUR: It`s a tough question, yes. God is omitted, as well.

MELBER: Well, look, we went for a super short "FALLBACK" because we had a lot of news this week. I think you guys of all heard, but I want to thank Chuck Creekmur And Madison Gesiotto for playing along. And we will be right back on THE BEAT.


MELBER: Let me tell you one more thing on the topic of Russian meddling. This Sunday Kara Swisher and I have a Town Hall with the CEOs of Google of Youtube about the future of tech and protecting our elections.


SUNDAR PICHAIM, CEO, GOOGLE: I think when we look at elections and stuff, Democracy fundamentally depends on you know, these things working well. And you know, all of us are obviously you know, very upset that the somebody could have influenced the elections and any part, you know, we have played, we want to understand it, we want to fix it, we have more elections coming so we`re all working hard at it.


MELBER: That exclusive conversation airs for the first time this Sunday 9:00 p.m. Eastern on MSNBC. I hope you`ll give it a try. "HARDBALL" starts right now.



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