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FBI Deputy director McCabe stepping down Transcript 1/29/18 The Beat with Ari Melber

Guests: Sheila Jackson Lee, Robert Ray, Richard Painter, Neera Tanden, Nick Confessore

Show: THE BEAT WITH ARI MELBER Date: January 29, 2018 Guest: Sheila Jackson Lee, Robert Ray, Richard Painter, Neera Tanden, Nick Confessore

KATY TUR, MSNBC CORRESPONDENT: "The Beat" with Ari Melber starts right now.

Hey there, Ari. Have you seen VP Pence when Donald Trump is talking? He just stares. He doesn't break gaze. Nothing on its face, just laser focus.

ARI MELBER, MSNBC HOST: Well, that can be very handy in a lot of situations.

TUR: Yes, it can.

MELBER: We have a lot of breaking news. But I di want to congratulate you and your favorite band, Fish, on winning the Grammy for best country song and best rap song last night. That's a rare thing to see.

TUR: You know what? You are a funny guy.

MELBER: Why aren't you laughing. There it is.

TUR: Yes, all right.

MELBER: You know, you show to go full circle. You show more emotion than Pence. How about that?

TUR: I don't think that's very hard.

MELBER: OK. And on that point, I hope to see you again soon, Katy Tur. I know we are going to be watching your state of the union coverage.

Breaking news, though, a lot going on. Let's start with this.

The senior FBI official that President Trump has been attacking just announced he is stepping down. Now the White House formally denying involvement, but the "New York times" already reporting early this evening that the pressure came from Donald Trump's appointee to replace Jim Comey.

Now here is why this matters. Bob Mueller is working his way up to Trump Org chart pushing for an interview with the President himself. And now, in this crucial period, at this time, we are seeing a series of stories breaking about Trump trying to pressure or purge every key law enforcement leader around Mueller.

Take Rod Rosenstein, his supervisor and Jeff Sessions who recused from Russia and now tonight Andrew McCabe stepping down plus, of course, that order to fire Mueller himself which leaked out last week but was aborted when Trump's lawyer allegedly threatened to resign over it. And all this comes in the wake of the purge that of course led to the Mueller's appointment. Donald Trump firing FBI director Comey.

New details emerging tonight as well about what Donald Trump said to Comey's deputy who is leaving tonight after Comey took what you see on the screen right now, boarding that fateful plane ride right after his firing. Trump saw that footage you are looking at of Comey boarding a government- funded plane on TV back to Washington after he had been fired.


RACHEL MADDOW, MSNBC ANCHOR: It's not unusual for federal agencies, especially big ones like department of justice and the FBI to have private planes at their disposal.

UNIDENTIFIED FEMALE: Comey got into a motorcade and made his way to the airport, snarled in L.A. traffic before boarding a private jet and heading back to Washington.


MELBER: We know about that. We know about what you see on your screen there, and if you follow the news, that was a bombshell.

What is new right now, according to exclusive reporting by NBC News, is what happened after that. Donald Trump so enraged by Comey getting on that FBI chartered plane that he called McCabe, that's the FBI official stepping down tonight, demanding to know why Comey was flying on that plane after he had been fired. McCabe told the President, he hadn't been ask to authorized Comey's flight, but if anyone had asked he would have approved it. Trump reportedly silent for a moment then turning on McCabe suggesting McCabe ask his own wife how it feels to be a quote "loser," an apparent reference to a failed campaign for state office in Virginia, that McCabe's wife made in 2015. McCabe then replied OK, sir and Trump hung up the phone.

Here's the news tonight. That's not normal. At a basic level, it is weird and vindictive. At the level of government policy, it violates security protocol, the request to strap a public servant in the field while on a government trip. The FBI director, of course, travels with security because of the threats on his life. And just like a discharged soldier, there's protocol for getting that soldier or public servant home safe even if they have been relieved for whatever reason.

This reporting also adds more confirmation and fuel to Donald Trump's public attacks on McCabe and calls for his ousting and unlike senior FBI veterans and like Comey or Mueller, Andy McCabe at this point probably not a household name.

But as we reported on "the Beat" just last week, he served 22 years in the FBI. He handled terror, cyber crime, and the Boston marathon bombing, that maybe why Trump's own FBI director reportedly threating to resign over a previous attempt by Trump to oust McCabe who again is stepping down tonight.

So we begin our conversation with one more piece of context. It's a little curious that just last week there was a leak that made Trump's own FBI director look good. He was allegedly protecting McCabe, threatening to resign over him. And now this week, Monday begins with McCabe out and the "New York Times" reporting the pressure came from that same person, Trump's FBI director, Chris Wray.

I'm joined by Ron Hosko, a former FBI assistant director. John Harwood CNBC editor-at-large, as well as Neera Tanden, former senior adviser to President Obama and Hillary Clinton.

Neera, the White House is disclaiming all of this. The "Times" reporting already putting it in a different light as well as the NBC account I referenced. I think you and I both know from reacting to and analyzing some of these situations, there is a drum beat where these things start to become a pattern. And a pattern can look like normal.

Your view on how abnormal this is and why potentially citizens care?

NEERA TANDEN, FORMER SENIOR ADVISER TO PRESIDENT OBAMA: I think what's obvious here is that the President of the United States is targeting everyone who is in the path of this prosecution. He is basically undermining the investigators of the, of his possible collusion with Russia.

He fired Comey. He has threatened to fire Mueller. He has attacked Rosenstein. He has viciously and personally attacked Andrew McCabe on twitter and now he is resigning. If you are an investigator of Donald Trump, your job is in jeopardy.

But let me just say one quick word. Andrew McCabe plays a crucial role in all of these issues, because he allegedly knew about Donald Trump's conversations with Comey, which seemed to be about obstructing justice. And so he is a witness for basically the Comey argument here, which is, ultimately, a witness around the issue of obstruction of justice. And I think the fact that the President fired a possible witness shows that he has a lot to hide.

MELBER: I think you make a great observation, which is why it is dangerous to follow only the vitriol out of Trump's mouth, reportedly or the vitriol out of his twitter stream because then you start talking about all these other issues, whereas you point out, what Trump is not saying is God, I'm worried about their person is person as a witness . And we do know, as you mentioned Neera, that he was part of the contemporaneous accounting dealing with what Comey said. Comey came out of Trump tower in the transition and started typing up his notes and briefing his deputies. That is what McCabe was, a deputy. I'm starting to ramble here excitedly because here in the news business I have a 6:03:00 p.m. news alert here from NBC colleagues and I want to read for analysis and then go to Ron.

A White House official confirming that one of the people we were just referencing, deputy attorney general Rod Rosenstein as well as FBI director Chris Wray, were at the White House today, meeting with chief of staff John Kelly. This came out after McCabe announced this fact that he's stepping down. That is the sum total of this information.

Fascinating, intriguing, I cannot say, I cannot report why they were there. With that in the hopper, Ron, I want to play for you a little bit of McCabe doing his job. We are reporting last week on his record. I'm curious your view of it, but my legal reporting, my understanding is he was known chiefly as a pretty tough investigator. Here he is talking about that work.


ANDREW MCCABE, FORMER DEPUTY FBI DIRECTOR: We hope this investigation will send a message to corrupt officials around the world that no person, no company, no organization is too big, too powerful or too prominent. No one is above or beyond the law.


MELBER: Ron, what can you tell us about him?

RON HOSKO, FORMER FBI ASSISTANT DIRECTOR: Well, Andy McCabe, I think, is a patriot. He was a hard-working, experienced, particularly in counter terrorism investigator and manager and executive. I think he worked hard for the organization. It is disappointing. He certainly became a lightning rod. I think we all know that whether you are a public servant or in some other industry your spouse is, you know, completely entitled to run for public office.


HOSKO: That seemed to have certainly garnered some attention that the notion that she got hundreds of thousands of dollars from terry McAuliffe or Democratic organizations raised eyebrows as Andy ascended to the deputy director position. I do believe that a lot of folks thought at that time he in effect put on a blue jersey instead of a striped jersey.

MELBER: Let me be clear, though, people thought that, sure. I'm aware of that. You say he became a lightning rod. I mean, I think Donald Trump and others made sure he was depicted as a lightning rod.

Are you aware, as you say he was a patriot, ae you aware of any evidence at this juncture that any of that activity, that his wife engaged in first amendment political activity, affected his work at the FBI? I mean, when you say blue jersey, are you aware that he ever put his thumb on the scale in investigation in that manner?

HOSKO: No, no. And I'm not suggesting that I am aware of that. I think what's playing out in the background now is this inspector general's investigation, certainly questions on Capitol Hill about this FISA, the Carter Page, FISA. And we don't know today. In fact, I'm among those that I want to see the evidence. I don't want to be shaped by pundits' view or a politician's view. I would rather see the evidence.


HOSKO: And my supposition is that Christopher Wray saw something other than Presidential tweets, that Wray saw something that said I need to push Andy to the side. I need to find another deputy director, and I need Andy to take a knee. He can go on terminal leave. That's my understanding what this is. It is not a resignation. He is going to get his retirement as he should. There's been no finding of misconduct. My supposition is that Chris Wray talked to the inspector general, saw or heard or has told something substantive that led to today's Andy taking terminal leave.

MELBER: Right. And just to set the table here for John Harwood. What Ron is referring to is there is a debate going on tonight including a potential vote a bout releasing the so-called memo which has allegations reportedly about the Mueller probe and surveillance. There is the report that as I have mentioned at the top of the broadcast that Chris Wray, the FBI director chosen by Trump was defending McCabe, now he is not. Ron putting forward, I think, what would be the best positive, sort of non-corrupt reason for this all to happen, which is that while there was a twitter campaign, there also was privately something real and a real reason to move forward, which I think would be, to most people's view a good thing if that was the alternative explanation.

John, your view?

JOHN HARWOOD, CNBC EDITOR-AT-LARGE: Well, look. We have no reason to believe on the public record that anything that Andrew McCabe did or his wife did, as you noted, put a thumb on the scale of this investigation.

What is crystal clear is that the President is challenging all the norms that we have become accustomed to about the independence of American law enforcement, about the President not being above the law as Andrew McCabe indicated in another context in that clip you just played. As Neera said, he has gone after Comey, gone after Mueller, he is going after Sessions and Rosenstein for not protecting him from Comey and Mueller. And the question of this investigation is how far is President Trump going to go to prevent accountability for himself? And we don't know the answer.

MELBER: We don't know the answer.

John Harwood and Ron Hosko, thank you. Neera, as you know, our panel continues because I want to bring in another guest.

Bob Mueller, of course, had another famous independent prosecutor arguing about the merits of firing Mueller. Ken Starr, a Republican, says that the key to him is whether Trump does ultimately lie about firing Mueller. That would bring consequences.


UNIDENTIFIED FEMALE: Reports are correct that President Trump sought to have Mueller fired, then his public denial would be false, so would that be grounds for impeachment?

KEN STARR, WHITEWATER INDEPENDENT COUNCIL: I think lying to the American people is a serious issue that has to be explored. I take lying to the American people very, very seriously. So absolutely.


MELBER: Want to bring in Robert Ray who succeed Kenneth Starr as independent council in that Whitewater investigation and to Bill Clinton.

Robert, you look at this kind of point from Ken Starr, who had at once defended Mueller, then seemed to turn on him. Now seems to be striking this line. If Donald Trump ordered the White House counsel to get Mueller fired, as the NYT reports and as the White House does not deny, would that be good or bad?

ROBERT RAY, FORMER FEDERAL PROSECUTOR: Well, it would be bad in the political process. And obviously, there are consequences to it. Although, you know, we are talking about this seven months later and Bob Mueller is still in the position. So it didn't happen.

I think, frankly, the story should be that the system has worked. The President has advisers around him to explain the folly of that course and how damaging that would be in the political process.

MELBER: Let me, we will go to the other point. I just want you to know how ridiculous it sounds when you say that's how the system's supposed to work. The White House counsel has to threaten to resign to stop the President from ordering the firing of a prosecutor investigating the President? Is that really how the system is supposed to work?

RAY: That is how the system does work. I mean, that's the push back that - that's why you have advisers to basically make the point about the consequences of your actions.

The President - nobody is questioning the authority of the President to fire the special counsel. He clearly has that authority. And anybody who suggests to the contrary or suggests that that would be an act of obstruction of justice frankly, in my view doesn't know what they are talking about.


MELBER: No. I don't think, as a legal matter, you and I know that trying to exercise the authority in that way of itself is not automatically any kind of crime, agreeing with part of your point. But would you agree, sir, as someone who has been in this job, that the system works better when people follow the right path without having to threaten to resign?

RAY: Well, look, it doesn't - I mean, at the end of the day, do you really care? I mean, the point is, what's the result? He is still in his position. Bob Mueller is going to continue to the end of this investigation. Does anybody really think that the President's going to fire Rod Rosenstein? You know, I really don't think that's case, you know.

And further, you know, your prior segment, where do you think that the new FBI director got the information with regard to Mr. McCabe. Presumably that came from the office of the inspector general's investigation that is run by someone I know very well, Michael Horowitz, an Obama appointee who was confirmed by the Senate and he is a professional --.

MELBER: And I agree. And you heard me say, if it is -- that would be the most benign understanding, if it comes from an ideal report, I don't know either, that comes from that. I think lawyer to lawyer, we could agree that would be logical and OK. And I think, I hope, I don't know. Do you agree that if it came just from Donald Trump talking about his wife being a loser and trying to get people kicked off a government plane on a vendetta, I imagine you would say that would be worse.

RAY: Well, I'm certain that, you know, we know a little bit more about it because we do certainly know that Christopher Wray resisted the President's efforts to try to get, you know, through Sessions to get McCabe, you know, fired from the FBI. That wasn't going to happen. He threatened to resign.


RAY: And again, you know, we talked about it. I mean, is that the desirable course? No. But of course that's, you know, Presidents find out, if they don't find out very early on, they certainly find out eventually that they don't have unlimited power. That the system is designed to make sure that there is oversights and checks to presidential power and including by Congress in the political process. And also even by people within the executive branch and within the office of the President.

MELBER: Let me bring in Neera for your view.

TANDEN: I just have to say. I'm continually astounded by the stupidity defense. Donald Trump is not aware that it's odd to try to fire people who are prosecuting you? I mean, it's not that we are just looking at this case. We have a pattern. He has attacked people who are investigating. He fired Comey. Isn't that odd to fire the FBI director? Yes, it's odd to fire the FBI director. He has singularly attacked everyone in the line of fire in this case. Jeff Sessions, James Comey, Andrew McCabe. And now Andrew McCabe has stepped down. We don't know the reasons why Andrew McCabe has stepped down, but we do know that he was essentially a witness for Comey in their exchanges.

So I think it's odd. And I have to say, we can all talk legal jargon, but from a kind of human experience, if you are innocent of a crime, do not attack the prosecutors day in and day out. And I have to say the fact that Robert Ray feels comfortable with a politician, the President of the United States attacking prosecutors, it strikes me he would not do that if it was a democratic President.

MELBER: Well, I want to sneak in, I want to get Robert chance to response but we have breaking news, Adam Schiff addressing a lot of new signs in the memo. Let's take a listen.

REP. ADAM SCHIFF (D-CA), RANKING MEMBER, INTELLIGENCE COMMITTEE: That both memoranda be vetted by the FBI and department of justice. But that was voted down. I spoke with the director of the FBI earlier this afternoon. He expressed his strong interest in being able to brief our committee, prior to any release of these materials about concerns that the bureau and the department have. I relayed that interest by the director of the FBI, an appointee of President Trump to this committee, but that was unavailable and they were not willing to meet with the director of the FBI to hear the bureau's concerns or the department's concerns.

Instead, they voted against allowing their own members as well as the members of the broader House of Representatives to be briefed by the department of justice and FBI on these memoranda.

Finally, I moved that if the majority was going to release their memoranda publicly that they release the minority views as well. That they be released jointly. And the majority on a party line basis voted against both memoranda being released to the public.

They then took up their own memoranda and voted it out to make public. We had a separate vote on the minority memoranda, and the majority voted against allowing the public to sight minority memoranda.

The release the memo crowd apparently doesn't want to release the memo now. The most they would do is say that at some indeterminate point a week or so from now they would consider whether to release the minority memo. We raised the transparently political objective, which is to allow the minority to set a certain narrative for a week or so before they released a full statement of facts from the minority.

But nonetheless, this is where we are. We have votes today to politicize the intelligence process. To prohibit the FBI and the department of justice from expressing their concerns to our committee and to the house and to selectively release to the public only the majority's destroyed memo without the full facts.

A very sad day I think in the history of this committee. As I said to my committee colleagues during this hearing, sadly, we can fully expect that the President of the United States will not put the national interests over his personal interests, but it is a sad day indeed when that is also true of our own committee because today this committee voted to put the President's personal interests, perhaps their own political interests above the national interests in denying themselves, even the ability to hear from the department and the FBI. And that is, I think, a deeply regrettable state of affairs.

But it does show how, in my view, when you have a deeply-flawed person in the oval office, that flaw can infect the whole of government. And today tragically, it infected our committee. And at this point, I will yield to my colleagues.

UNIDENTIFIED MALE: We are not talking about the investigation. We are talking about the distraction that they have created. And tat's sad and unfortunate. Because if you're a Democrat or Republican, you should care just as much about this. They attack the democratic process. They hacked into boards of election. And one can imagine a scenario in which they were just as likely to attack a Republican candidate as a democrat.

SCHIFF: Should also mention that it was disclosed to the minority today for the first time that the majority as evidently opened an investigation of the FBI and an investigation of the department of justice. Under our committee rules, of course, that has to be the product of consultation with minority, but we learned about that for the first time here today.

Now it has been publicly reported from time to time that there was a sub- set of the majority working on some kind of an investigation or inquiry into the department of justice and FBI, but apparently, the chairman made it formal today, according to the majority, the FBI's under investigation and so is the department of justice.

This is a wholesale broadside against two of our respected institutions and brings to mind something I brought to the committee's attention a week ago when we first took up the majority memo. And that is we need to be concerned with not just what happens with this presidency but the lasting damage that may be done to these institutions. And unfortunately, that damage just became all the more greater today.

UNIDENTIFIED MALE: Congressman, are you comfortable with how DOJ handled the situation that's under review? Are you confident?

SCHIFF: Well, you know, I think the department of justice has done what they could, but the majority has been unwilling to share with them the nature of the concerns they have, the memoranda to invite feedback from the department. And I think the department was all too accurate in saying that this is extraordinarily reckless.

Why on earth would you not want to give the FBI and the department of justice the opportunity to come in and say you are right, you are wrong or here's what really happened. But they denied the department and the bureau that opportunity. And I think that's a grave disservice to the hard- working men and women in both the FBI and the department of justice.

UNIDENTIFIED FEMALE: Could you put the memo to one side, are you confident, congressman that there was no abuse of government surveillance systems by the department of justice and FBI during the 2016 campaign?

SCHIFF: I certainly haven't seen any abuse of the investigative process by the FBI or the department of justice. What I have seen, instead, is a deliberate attempt from the very beginning of this investigation to distract attention from the Russia probe.

What we saw today is only the most recent chapter of a series of events that began the day after the first hearing of our investigation. On March 20th, James Comey came before our committee and testified for the first time that the FBI had opened a counterintelligence investigation against the Trump campaign. The very next day, our chairman went on what is become know as the midnight run, to obtain documents that he would the following day go to present to the White House, claiming that they showed evidence of an unmasking conspiracy of the Obama administration.

We would very soon learn that in fact they obtained that information from the White House and it was a charade. That charade was designed to do the White House's bidding. And I'm afraid today is just a continuation of that same priority of the chairman and that same phenomenon. This is an effort to circle the wagons around the White House and distract from the Russia probe.

UNIDENTIFIED MALE: From what we understand, Christopher Wray did come up to Capitol Hill this weekend, did review the memo. You have had conversations with Mr. Wray, did that review satisfy the justice department's concerns? And I want to know, what was the rationale that the committee gave for not releasing your memo?

SCHIFF: No, the review did not satisfy, I think either the bureau or the department's concerns. And indeed, the director of the FBI asked for the opportunity to come before the committee and express those concerns, but that request was denied by the chairman today.

UNIDENTIFIED MALE: And what was the rationale for your memo? Why is that not being released publicly as of now?

SCHIFF: Well, Mr. King made the request to release the majority memoranda. In his statement advocating its release said that we need full transparency. And so when I moved to have the minority memo released in the interest of full transparency, they evidently took the view that full transparency means only one side gets heard and not the other. So they voted down the opportunity for the country to see the minority memoranda and frankly, an accurate recitation of the underlying facts.

UNIDENTIFIED FEMALE: With the resignation of Andy McCabe, is there concern that the memo is going to show that perhaps he may have been involved and perhaps in the issues that the GOP is bringing up right now?

SCHIFF: I would only say, at this point, I can't comment yet on the contents of the majority or minority memoranda. That I think Mr. McCabe has been deeply and unfairly maligned. He has been a career public servant with the FBI. I think he has done an admirable job serving the country, and I think that this committee and others have done a tremendous disservice to Mr. McCabe.


UNIDENTIFIED FEMALE: Trying to vote on the member (INAUDIBLE) and also is there a chance that the memo could be released before the finding window or do you have to wait for five days?

SCHIFF: The vote to release the majority memo and the vote to deprive the minority of having its memo released was on a party line basis. Both of those were for its party line basis. Both of those reach were party line basis.

In terms of the timetable, this has never happened in my experience in the committee, so we are in uncharted waters. But if the President expresses the view short of five days, hey, I'm perfectly copacetic with anything they publish that helps me. I don't know that they have to wait five days. And the White House has made it abundantly clear that they want the memo published even thought they haven't read it.

That should tell you all you need to know about the President's priorities Even without reading it, even without gearing from the intelligence agencies or the FBI, what damage it might do in terms of public release, it's clear they already want it released. I think, as one of my tea party colleagues said all too candidly, he was sure the President was going to want to release the majority's spin memo because it was good for him. And that is apparently the standard now for the release of classified information. If it's good for the President then fine. Regardless of its impacts on the bureau, and the department or on the interest of justice.



SCHIFF: I have no confidence that that review will take place of the majority memo. In fact, if I could, in fact, I think it's quite clear that the majority has no intention of having this vetted by the department or the bureau. And at least, you know gleaning from what the White House said over the weekend, it doesn't look like they have much of an intention to vet it either that the conclusion is precooked.

We did make it clear that if and when the majority allows the minority memoranda to see the light of day, we are going to do the responsible thing and we are going to seek to have the department of justice and the FBI redact anything from our memo that could compromise sources and methods.

UNIDENTIFIED MALE: Was there any consideration of releasing your memo or the underlying intelligence behind the memo?

SCHIFF: That was not the subject of a motion today. The last thing I mentioned is that I also moved that the transcript of the open proceeding be made available to the public tomorrow. The Chair committed that that would happen as soon as possible because I think you need to read the transcript, to see my colleagues, on the one hand, argue for full transparency and then vote down a motion to make public the minority memoranda. And I think you need to see them express concern about possible compromise of sources and methods and then vote down the opportunity to have the Department of Justice and FBI weigh in on those very issues. Thank you.

UNIDENTIFIED MALE: Is that the end of the Russia investigation, sir?

SCHIFF: Thank you. No. No. We're determined, no matter what wild-goose chase the majority would take the country on, we are staying focused on conducting the Russia investigation, and that will go forward. We expect Mr. Bannon to come in on Wednesday, we're told by the majority. I did ask when Mr. Lewandowski would come back because he refused to answer precisely the same questions. They don't have a date for Mr. Lewandowski. Apparently, they're holding Mr. Bannon to one standard and other witnesses like Mr. Lewandowski to another but no, we press on. Thank you.

UNIDENTIFIED FEMALE: (INAUDIBLE) for being his lawyer?


ARI MELBER, MSNBC HOST: We have been listening to a very unusual I would even say extraordinary presentation from the top Democrat in the House Intel Committee. The news here is that House Republicans voted A, to release this controversial secret surveillance memo about Russia purportedly designed to impugn or question the Mueller probe. B, they also voted to block a Democratic memo, which Congressman Schiff there was arguing is clearly or obviously hypocritical, given all the calls to "release the memo." Three -- C, this tells us that now there are five days for the President of the United States to make the ultimate call, according to Congressman Schiff as we just heard. He says this is the first time he can recall this obscure House rule ever being used in American history to release classified information.

We have a lot to get to. I want to bring in our panel. NBC's Ken Delanian who has been following this story closely, I'm also joined back again with Neera Tanden, a former Adviser for Barack Obama and Hillary Clinton and Robert Ray who succeed Ken Starr as the Whitewater Prosecutor. Ken, what we just saw according to the top Democrat there was unprecedented. There is much controversy about this secret Russia memo. Your view of what we just saw and what it means will happen in the coming days?

KEN DILANIAN, NBC NEWS REPORTER: This is absolutely historic and incredible, Ari. Let's just take the memo. On two levels, this is incredibly unusual. As you've been saying all day, what you have here is a secret FBI criminal investigation, a pending investigation and the House has decided to selectively release some key documents as a part of that investigation to the public, without regard for how that may impact the investigation, the subject of the investigation, the FBI progress, that's one issue. Then that would be true if it was a normal generic criminal investigation but it's not.

It's a secret national security investigation using classified methods under the Foreign Intelligence Surveillance Act, and that poses another incredible juncture here where they've decided to release apparently the fruits of a secret FISA warrant, and they're doing that as far as my reporting tells me, without fully consulting with the people at the Justice Department and FBI who can raise flags about what's sensitive, what isn't, what should be redacted, what are sources and methods. You know, Christopher Wray did go and read the memo. But my reporting as of a few hours ago at the Justice Department was it was not clear whether they would get a full chance to weigh in before the President makes a decision to release it so it's really extraordinary. I'll add to the litany of things you added. Adam Schiff also disclosed that there is a full-scale investigation going now by the Intelligence Committee of the FBI and the Justice Department with very uncertain implications, Ari.

MELBER: Right. And what you're speaking to is whether there is an attempt now, this is breaking news from Adam Schiff, both to use the fruits of secret surveillance and what still would be an ongoing criminal probe as well as the oversight powers of the House, which of course in a healthy system should have an adversarial relationship with the agencies they oversee, but whether that is allegedly potentially becoming a political effort to investigate the investigators. Ken and the panel, stay with me. I have a Congresswoman Sheila Jackson Lee who's able to join us before votes. Congresswoman, what does this mean to you, what we are learning now, the House Republicans voting to both release their version of the memo and block apparently the rebuttal version from the Democrats?

REP. SHEILA JACKSON LEE (D), TEXAS: Well, Ari, first, there was a soloist that was singing the blues to destroy the FBI. Now there's a choir and that is Republican members of the House and Senate to destroy the FBI and the American people are not buying this music. This is really shameful and it undercuts the rule of law and it really speaks to how low Republicans will go to interfere with an ongoing independent investigation that is governed by the rule of law. I have not heard any American stomach, if you will, for destroying the FBI.

In fact, there is a great deal of respect for the work that the FBI does. Truly making the FBI healthy is important. Having ways of investigating issues that require investigation and the FBI, those who may not have done all the protocols correctly, everyone accepts that. Government oversight is important. But what I see here is a calculated pathway of destruction only to distract from Special Counsel Mueller's quiet, deliberate, constructive investigation which the American people understand.

MELBER: And Congresswoman, let me play for you another reporter from Fox News who was arguing that the way the memo has been hyped thus far and the recklessness to quote the Trump Justice Department with which it may be released is itself a problem. This was Shep Smith reporting.


SHEP SMITH, ANCHOR, FOX NEWS CHANNEL: A memo can be a weapon of partisan mass distraction, especially at a pivotal moment in American history when it behooves the man in charge for supporters to believe the institutions can't be trusted, investigators are corrupt and the news media are liars. Context matters.


MELBER: That was Shep Smith siding effectively with the critics of the way House Republicans are proceeding now formally tonight, moments ago, a vote to release this memo. As a legal matter now, there's only -- the last technicality of whether the President will formally release it within the next five days under the rule. Your view of that theory, Shep Smith arguing that this is part of a broader piece of Trump and his allies trying to discredit all the institutions of accountability, not only the Mueller probe per se but the press and facts themselves.

LEE: Shep is absolutely correct, in fact, I have heard his very thoughtful analysis in times past. The FBI is one of the legs, one of the components of national security in this nation, the CIA, Army Intelligence, Homeland Security is a part of it and a number of other agencies are the pillars of our national security. In fact, we have managed not to have a catastrophic terrorist act on the basis of the collaboration of those agencies. I know it well, because I'm the Ranking Member on the Crime, Terrorism, Homeland Security Investigations Committee. There's a lot of work that has to be done and that we are doing. The American people rely on that comforting collaboration. What is happening now is a distraction to take away from the indictment of General Flynn, now speaking to the Special Counsel, Papadopoulos, now speaking to the Special Counsel, testimonies of Bannon, testimonies of Manafort, the investigation of possibly close officials and operatives in the White House, family members and now the request for the President to speak. I think that is a sad commentary. There are ways to protect those who would be asked, engaged in testimony and that's the way it should go. It should not be an attack mode of undermining and destroying the reputation, destroying the reputation of McCabe, who frankly is an able public servant, and the elements of any disagreement with him are that of partisan hacks. I would make the point to the President. I believe tomorrow, the President should stand up and defend the nation's national security apparatus. He should indicate that his willingness to abide by the rule of law and he should step down in a way from skewing the public's thought processes about cooperating with the FBI. For all we know, this could be impacting witnesses in criminal cases across the nation. And so that's why I believe it's crucial, Ari that we put on the floor of the House, H.R.3654 and the complementary bill in the Senate that protects Special Counsel Mueller's work --

MELBER: Right.

LEE: -- from a destructive firing that might occur. We know that the President attempted to do so by affirmation of many others in June. We don't know when he might attempt to do so again, and he has the authority to do so. But this blocks him by way of federal courts having the responsibility to make the decision of malfeasance, cause, incompetence or any other lack of capacity. I really do think, Ari, that we're going down a spiraling path that frightens me when you begin to encourage the public. We know the 30 percent is with President Trump. But the public to doubt the safety net of law enforcement, which is FBI.

MELBER: And Congresswoman, part of the reason we had you on tonight, we had you booked as well as Congressman Matt Gaetz, a Republican with different views and you had that legislation which has gotten some attention, with all the votes and all of this going on. I know Congressman Gaetz is rescheduling us. You manage to fit in. I know you have some business as well so thank you for making time for THE BEAT. Thank you for your perspective. I want to turn back to our panel --

LEE: Thank you so very much.

MELBER: Thank you. With this breaking news, Neera Tanden still with me, Robert Ray, former Whitewater Prosecutor and I'm about to be joined by lawyer Richard Painter. But your response to this approach to the memo, would you as a prosecutor be comfortable with this kind of disclosure midstream?

ROBERT RAY, FORMER FEDERAL PROSECUTOR: Well, I mean, the views of the Congresswoman notwithstanding reports of the demise of the FBI and Special Counsel's office are greatly exaggerated. Look, I mean, call me curious, just as a citizen of the -- of the country, I am left to wonder as a result of what we know and what we don't know, what was happening during the course of the Trump campaign that led ultimately to a FISA court to approve surveillance application that authorized wiretapping of members of the Trump campaign or incidental interceptions.

MELBER: I'm also curious. We have that in common.

RAY: Sure, as a member of the press.

MELBER: What I was asking you is -- but I was asking you as a prosecutor, would you want this kind of disclosure midstream while your criminal probe is open?

RAY: I mean, there's no question, everybody can concede the notion that it's a bit of a distraction, but I mean, do I think that Congress is fully capable of looking at this while Congress also looks at matters involving Russia collusion and Bob Mueller conducts his investigation? Yes, I do. Can Congress walk and chew gum at the same time? I sure hope so.

MELBER: Let me hold on -- I did almost -- for those watching THE BEAT closely, I also promised Robert a rebuttal to an earlier point, but we've had all this breaking news. I will get you your time as well as we --

RAY: Fair enough.

MELBER: Neera Tanden, is with us tonight and I also want to bring in Richard Painter, a former Ethics Lawyer for President George W. Bush. Richard, you have been involved in many aspects of this. I mentioned Robert's bonafides from the Republican investigation or succeeding Ken Starr I mentioned. Yours is someone who is known to be suing the President over ethics issues, just so we're all clear on who's coming from where. But your view legally and from a national security perspective about what we just learned about Republicans in the House voting to release the Republican version of this memo, something the Trump DOJ said would be reckless and also voting at the same time to block any effort to release the Democratic rebuttal to it.

RICHARD PAINTER, FORMER ETHICS LAWYER FOR PRESIDENT GEORGE W. BUSH: Well, the Department of Justice says it would be reckless, I would think they'd want to meet with the Department of Justice and find out why and meet with the FBI and find out why. This is President Trump's Department of Justice that's taken that position so I would hope the President would take the advice of his Department of Justice and not release this until we know it's not going to be a threat to our national security to do so. When we do release, of course, they should release the Democrats' memo as well. But this is a big sideshow. What this is really about is a foreign power intervening in our election and conducting criminal activity inside the United States and anybody who's collaborating with that foreign power certainly should be under FBI surveillance. I would hope that the FBI would have known about things like the Trump Tower meeting with Russian agents. That's what the FBI is there for, to find out whether foreign countries and others are engaged in criminal activity and foreign nationals have no business contributing to our election campaign, that's illegal and the FBI should be on top of that. But this is not a Democrat/Republican thing, this is about American national security. And have to say, if members of Congress have been behaving his way during the Cold War, we'd all be speaking Russian by now. We need to protect our own country and stop acting this way. It's just childishness.

MELBER: And you put it -- you put it clearly and Neera, Richard Painter raises several points, so I would say, I believe (INAUDIBLE) to them. Is that right? I think that's how you say thank you in Russian.


MELBER: But I want to ask you -- I want you ask you to zero in on at least one of then plus whatever you got to say but Richard makes a point --

RAY: How about dah.

MELBER: -- that we know which is I'm old enough to remember when if news leaked that you were under a federal wiretap, which is approved by a judge independently, let alone an international surveillance espionage wiretap, AKA the FISA court, that was usually considered bad news for you, not a giant red flag of oh, my God, let's investigate how this was approved, because it means somebody else did something wrong, and yet that is clearly being flipped on its head tonight with this vote, Neera.

TANDEN: Absolutely. And let me just say it shows the ridiculous position of the House Intelligence Committee majority is that they will not, and they refuse to release the Democratic minority memo. If you believe in release the memo if you've been tweeting release the memo, release both memos. What possible basis could you say we will not hold up for a few days to have a Justice Department review or an FBI review and we will not release the Democratic minority? Obviously, I agree with Richard that this is a red flag and a side distraction, but we should be deeply disturbed that Nunes, Chairman Nunes, who was theoretically recused from this entire investigation because he was basically shown to be running cover for the Trump White House is now behind the memo, which is basically focused on maligning the FBI's role, maligning the Department of Justice and won't allow the transparency of a Democratic minority memo as well. There is no legitimate reason for allowing one memo to go forward and not the other. If you believe in transparency, which just shows that this whole effort, it seems to me, it shows this whole effort is basically the people in Donald Trump's party are trying to defend Donald Trump from possible illegal acts. That's what, I mean, why go through any of this except for that cause.

MELBER: Well, I think you put it bluntly, and I think it raises several profound questions. And the notion that all of this is going to focus on whether according to the New York Times, a -- by the Trump admissions -- Trump administration's own admission, a peripheral figure Carter Page was or wasn't under surveillance, that that is going to be the thing is wild. Wilder still is the Times report that we haven't independently confirmed, although we can note that Rod Rosenstein was at the White House today, that all of this is an effort for the Congress to help oust Rod Rosenstein who appointed Mueller so someone else can get in there to oversee Mueller. The flip side of that is the point that Robert was raising earlier, that the good news is none of this bad stuff has happened yet so maybe it will never happen. The other interpretation is that the bad stuff is ongoing and could get worse. I close because we have to fit in a break. We've been going 47 minutes strong. I close of course with a famous quote from Chairman Mao that John McCain always like to quote. I'm sure you guys know it. It's always darkest right before it goes completely black. On that positive note, we're going to fit in a break. We have a lot more coming up, Nick Confessore joins the table, Robert Ray gets a rebuttal. We'll be right back.


MELBER: -- to THE BEAT on a breaking news night. The long battle over releasing the memo has taken a new turn tonight with Republicans voting to say they will release the Republican version of the memo on Russia which allegedly impugns aspects of the Russia probe, and they will vote down any effort to release the Democratic version. This is a hot political topic obviously going into the State of the Union tomorrow night and the President legally has now just five days to make the final call on whether to release the memo. I am going to bring in two qualified experts here. Robert Ray is a former Whitewater Prosecutor, and Nick Confessore from The New York Times who is here to cover a number of stories. I know you're busy but I wonder if you can take a step back. We did some lawyering of these issues. I wonder if you could do a broader reporting of the issues as someone who has followed many aspects of this, including specializing in some of the Russian propaganda campaigns which were involved in the #ReleasedTheMemo. What do you think we've learned that in that unusual briefing tonight out of the House?

NICK CONFESSORE, POLITICAL CORRESPONDENT, THE NEW YORK TIMES: Look, what we're seeing is the attempted reconstruction of an alternate narrative for the Russian probe for the consumption on the right. And the alternative narrative is the DNC funded this thing and sent some garble to Russia and got some garbled stuff and that went to the courts, and that went to the FBI, and that proves the Russia investigation. And that's what you see being eaten up on Fox and on Twitter. And they're hoping that maybe this one narrow aspect of the Russia investigation which is the FISA application for Carter Page will look so bad that it will unpack kind of bring in the whole thing. It's unlikely that he is so important or central to the investigation that that will happen but they want to have something, anything to pull a leg out from under them.

MELBER: So you think it's using that to blow up the whole thing? Robert, I promise you a rebuttal earlier in the broadcast, you get in now.

RAY: Well, I mean, you can call it an alternative narrative, but the question is whether at the end of the day it has any merit. And I think, my own view is that separate and apart from the environment that we're in which makes it very difficult to sort of see its independent merits, I think in the ordinary course, this would be something that would warrant further review. Look, I'm not going speculate as to whether there is any there-there. But I mean, is it something to take a look at? I think so.

MELBER: Right.

RAY: I mean, you know, and if you're right and it's just a spin and it's an alternative narrative, then should it be easily dispensed with. As far as the question about, you know, whether whose memo gets released and all of the rest of that look, in the -- in the space and time, my guess is once people look at this upon reflection, if appropriate redaction needs to be made in order to protect national security, I think it will. You asked whether you know, is the Justice Department getting a fair opportunity to present this to the President, your reporting also says that apparently Rod Rosenstein and Christopher Wray were at the White House today. So I'm assuming, again speculation, that that was at least a topic of discussion with the President.

MELBER: Right. We don't know what they were talking about. We just know they were there and Jeff Session wasn't. I appreciate both of your time on this breaking story. Coming up, we have something very special and a little different on THE BEAT. That's next.



SCHIFF: It was disclosed to the minority today for the first time that the majority has evidently opened an investigation of the FBI and an investigation of the Department of Justice.


MELBER: Congressman Schiff there making news in our hour, describing the vote to release the Republican version of an intelligence memo, to decline to release the Democratic version, and as he said there an open investigation. We don't know at this hour exactly what that means by House Republicans into the FBI. All of this coming as the President is about to give his State of the Union tomorrow and there have been leaks about him trying to get Bob Mueller fired. I'm back with The New York Times, Nick Confessore, and former Whitewater Prosecutor Robert Ray. Pushing ahead here, Donald Trump now has to make this decision. It's not a hashtag, it's not a political campaign, within five days he says up or down, I'm releasing the memo. Did he put himself in a tight spot?

CONFESSORE: This is the first time since firing Comey I think that the President has a real decision point that impacts directly the investigation aside from providing access to the White House staff for interviews and himself of course which is the big decision. He's got to decide what he wants to do, listen to his own prosecutors over at Justice who say don't release it, or listen to the politics of it, which have him wanting to show, look, this whole investigation is crooked.

RAY: I have great faith in the fact that with regard to the big issues, the country ultimately gets it right. This is a big issue with regard to release of potentially national security information. I don't know what's in there so I don't know how opine on what I don't know.

MELBER: Do you think Donald Trump put heat on himself about something he doesn't know yet? He reported that he doesn't know exactly what's in it.

RAY: Well, yes, but it's a big enough issue that he's -- and now he is on the hot seat and he's only -- he's the only one who can ultimately can make that call about whether it's in the national interests.

MELBER: Do you think there's a chance -- do you think there's a chance he --

RAY: Not his personal political interests or the -- or the political interests of the Republican Party, but this is framed as a question and you've appropriately framed it here tonight about what's in the country's best interest.

MELBER: Do you think there's a chance Donald Trump blinks and decides not to release it?

RAY: I think there's a chance of that. I think there's also alternatives to be careful about what you do release. Maybe if there's -- again, I haven't seen it but it wouldn't be unheard of to release things in redacted form. If there are truly issues involving national security, the disclosure of which would harm the national interests, I think that there will be plenty of people to weigh in about alternatives meaning redaction. Now the problem with the redaction, of course, is that everybody is left to wonder what's behind the redaction. But --

MELBER: And the problem with THE BEAT is -- and the problem with THE BEAT is we end at 7:00 p.m. Eastern. Robert and Nick, thank you, both. That is our show. A very busy night and I will be watching "HARDBALL" along with you which starts right now.




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