Dems press top DOJ official to back off Mueller. TRANSCRIPT: 03/27/2018. The Beat with Ari Melber

Guests: Maxine Waters; Mike Lupica; Leah Wright Rigueur; Natasha Bertrand

Show: THE BEAT WITH ARI MELBER Date: March 27, 2018 Guest: Maxine Waters; Mike Lupica; Leah Wright Rigueur; Natasha Bertrand

KATY TUR, MSNBC CORRESPONDENT: That`s all for tonight. We will be back tomorrow with more MTP DAILY.

THE BEAT WITH ARI MELBER starts right now.

Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Katy. This was a clown thing? Is that right?

TUR: No, it is a clown thing,

MELBER: Do you find clowns scary?

TUR: I think they are terrifying, frankly. Although, I will say there is a great fish song, you should check it out, called when the circus comes to town, originally performed by Los Lobos, but I think great fish (INAUDIBLE).

MELBER: Interesting. Will keep that in mind. And we will keep on eye on that race.

TUR: Clowns are scary.

MELBER: We begin this broadcast with breaking news.

Democrats are making an unusual push tonight to protect Bob Mueller from what they view is potential obstruction by the Trump White House. Top senators are reaching out directly to all the key DOJ officials that would be in a line of succession to become Mueller`s boss if something happened to Rod Rosenstein`s job.

Now the Dems, and this is brand-new, are asking for this new unusual public commitment to protecting Mueller. They cite significant concerns that Trump may try to interfere with the probe or shut it down entirely as his now departed lawyers John Dowd asked and they want thee officials to quote "publicly commit to refuse any order or request to interfere special counsel Mueller`s investigation including, but not limited to firing Mr. Mueller.

Now as we have reported, Donald Trump does not have the personal authority under the rules to fire Mueller, but he sure can put pressure on as he has publicly on the DOJ. Now this new request which is just coming to the newsroom shows that these senators don`t want to take any chances as the investigation appears to be moving closer and closer to President Donald Trump.

I want to get right to it with Natasha Bertrand who writes with "the Atlantic" and discovered the story extensively, as well as Mike Lupica, columnist for "the New York Daily News."

Natasha, the backdrop for this is a President who as we reported who as we reported last night has more lawyers working to silence women than he has working on the criminal defense in the Russia probe. That`s a literal legal fact. And the FBI`s deputy director was removed in that bizarre Friday night firing and still we haven`t heard anything from Trump DOJ to support or substantiate the allegations made there. What does that context say to you about these Democrats being this concerned tonight.

NATASHA BERTRAND, REPORTER, THE ATLANTIC: It makes me wonder, what do they know? I mean, we also saw that Tom Tillis, a Republican and Chris Coons, a Democrat, came out with a bipartisan statement today, really urging the President to allow special counsel to continue his investigation.

So the fact that those two are coming out today, really raises questions about what they have been hearing about the President`s altitude right now. We know that, of course, he tweeted a couple of weeks ago about naming Mueller directly in his tweets for the first time and really providing evidence that he wants the probe to be ended.

John Dowd, his former lawyer, came out with the statement saying that they want the investigation to be completed. And that, you know, the firing of Andy McCabe, the deputy FBI director, kind of really emboldened them in that sense. And the attacks on the FBI, of course, have been pretty consistent since the beginning of this investigation.

So whether or not this is just a pre-emptive move to, you know, put, to just warn the President not to fire the special counsel, or whether they actually have a concrete indication that he is planning to do so I imminently or of course, ask deputy attorney general Rod Rosenstein to do so, that is something that we need to watch out for.

MELBER: Right. And it comes at a time like when the President has publicly struggled to hire these new lawyers, to get people on the team. You can look here at lawyers approach to work on the team and you see how many for various reasons won`t do it. I was reporting some firms complain that he has stiffed them. That he won`t pay. Others just think he is a difficult client. Others claim conflicts. Mr. diGenova came onboard and then beg off all within the span of a few days over conflicts, Mike.

MIKE LUPICA, COLUMNIST, NEW YORK DAILY NEWS: Yes. I mean, Ari, you wonder if it is a really good legal strategy to look for lawyers like 1-800-call- FOX News. And that is pretty much what he did last week.

Ari, when he said about a week ago that he once again looked forward to talking to Bob Mueller, every time he says that, I think I`m hearing that from a guy who thinks he has never going to have to talk to Mueller. And I have believed all along that he would try to do everything possible to set in motion, getting rid of Mueller. And people said well, he can`t do that because it would precipitate a constitutional crisis and I was like, wait a minute. We are not having one of those already?

MELBER: Well, and we may or may not. I mean, a lot of this is a question of the bluster of Donald Trump versus the results.

In some ways Natasha, the removal of the FBI official, is bigger than Comey, which sounds funny to say, because that was obviously such a huge deal. But the President does have at least the lawful authority to remove the FBI director for the right reasons.

The deputy director was ousted in a process where it seemed like Donald Trump`s public attacks on him informed and perhaps corrupted the internal FBI process. I want to speak to that as well as I want to read something from "the art of the deal" that gives us a little bit of history on Donald Trump, who is more litigious than any other President in the history. But also I doesn`t like litigating, he claims. He says I don`t like lawyers. I think they all they do is delay deals, instead of making deals. Every answer they give you is no. They are always looking to settle instead of fight.

And Natasha, that appeared to be one of the public explanations for the break with John Dowd.

BERTRAND: Right. And this is something where Trump really wants personalities around him that he clicks with. If he feels that he doesn`t get along with a legal team, regardless of whether or not that team`s strategy is good for him, he will get rid of them.

When we saw that last week with Joe diGenova, when he was going to join the legal team. Ultimately, it was reported that it wasn`t just a conflict of interest that prevented him from doing so. It was actually that Trump just didn`t feel like they jive. He didn`t really have a connection.

With regard to the firing of Andy McCabe, it`s definitely, it is worth wondering whether or not this was a kind of a campaign of sustained pressure on the bureau and the DOJ. This is of course, we have to have the usual caveats where we don`t actually know what the inspector general report says, but of course, why was Andy McCabe fired one day before his retirement, why couldn`t it have waited until perhaps the inspector general report was released, thereby kind of alleviating the concerns about whether or not there was political pressure applied here.

And of course, after he was fired, just less than 12 hours after he was fired in fact, we saw Trump come out with a tweet that was really akin to the interview he did with Lester Holt about the reasons why he wanted James Comey gone, which was the Russia investigation. He came out and said in his tweet Andy McCabe, that it was a great day for America. Really kind of showing all of his cards in that sense and the fact that he wanted Andy McCabe gone because of personal reasons.

MELBER: Right. Exactly.

I want you both to hang on. I want to turn, because a congresswoman just got in place, California congressman Maxine Waters joins me.

Congresswoman, I wonder your view of this push by your colleagues in the Senate and why now?

REP. MAXINE WATERS (D), CALIFORNIA: Well, I`m so very pleased that my colleagues in the Senate, led by Blumenthal, I`m told, organized and they are showing support for Mueller. And they are saying the justice department has a responsibility to protect him and allow this investigation to go on.

We are all worried. We are all worried and we are on break. You know, I`m here in California. And some of my colleagues thought that he might try this while we are all break. And so he has in many ways, you know, alluded to his dislike of Mueller. Keeps saying there was no collusion. This investigation needs to stop. And so many of us wonder if he is not guilty, why is he doing what he has been doing, firing and undermining and basically causing this chaos if he is innocent?

And so I`m very pleased. You know, I organized 100 and I believe it was 80 members of the Democratic caucus to basically sign a letter in support of Mueller. And I did that in September, because again, we are very concerned that this President is capable of doing anything and that he may try it.

MELBER: Congresswoman, as you know, one of the things that Steve Bannon does is make up probabilities. He will just say there`s a 22 percent chance that something is happening like it means something. It sort of his rhetorical techniques. So I want to read to you one of his probabilities here.

This was published in "Fire and Fury." He was telling people there was a 33 percent chance Mueller`s investigation would lead to impeachment, a 33 percent chance Trump would resign, and a 33 percent chance that he would limp to the end of his term.

I don`t know if you and Steve talk a lot and you speak in the same probabilities that he does. But do you think? Is there still, in your view, based on the public facts, a 33 percent chance of impeachment or higher?

WATERS: I don`t know what percentage chance to give it except to say this. That I believe that Mueller will connect the dots. And I do believe that he is impeachable. And I do know that if he crosses certain lines, like the firing Mueller, that puts him in a position where even Republicans may ride to the occasion and accept their responsibility. And there may be other things that we don`t know about.

I have started, you know, this conversation early on right after he was sworn into office. And I learned a lot about his allies and their connection to Russia and the oligarchs, et cetera. And so I have continued to talk about this President being unworthy and should be impeached. And I know that you have to have the facts. The dots must be connected. But I believe it is certainly can be done. And if anybody can do it, Mueller can do it.

MELBER: And congresswoman, I want to play for the benefit of your response, there are critics, some Democrats including yourself, who argue that whatever one`s disagreements with Donald Trump that that may bias the higher legal standard and the constitutional standard, as you know for the potential removal of a President in office. And so, I want to play for you and then get your response. This was you making that type of claim against the Republicans pursuing bill Clinton in that impeachment, take a look.

(BEGIN VIDEO CLIP)

WATERS: OK, all right. I am greatly disappointed in the raw, unmasked, unbridled hatred and meanness that drives this impeachment coup detat, the unapologetic disregard for the voice of the people. My Republican friends, what you do here today will long be remembered and recorded in history as one of the most despicable actions ever taken by the Congress of the United States of America.

(END VIDEO CLIP)

MELBER: Your argument is that it was despicable because it was partisan and not a proper exercise of the constitutional impeachment power. What do you say to people who argue that the Democrats in the House may go down that road? May go down that road depending on what happens in November because of a distaste for Donald Trump?

WATERS: Well, I want to tell you that the Democrats have been very, very responsible. And even saying to me that I should not be calling for impeachment. Let the investigation go on. Let Mueller connect these dots. And they have not taken a position as a Democratic caucus on this impeachment.

And they have said to me, that let`s just talk about our issues. Let`s not talk about him, just this -- this just emboldens the Republicans who say that the only reason that you would want impeachment is because you don`t like him and that you lost the election. And so, Democrats have been terribly responsible. And again, I`m one of just a few who have insisted that he is unworthy, that he is deplorable, that he is despicable and he should be impeached.

MELBER: Congresswoman, stay with me, if you will. I`m juggling and I want to include the panel that has been sitting by with us.

Mike Lupica, take a listen to the White House answering. I think the question that may sound embarrassing to them but was just a real question, which is with all the lawyers heading out the door, who is lead counsel for the President in this open criminal probe. Take a listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I`m wondering why the President has had so much trouble finding an experienced lawyer to take him on and who at this hour is his lead counsel in negotiating with Robert Mueller and the special counsel.

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: Look, the President has a highly qualified team with several individuals that have been part of this process, Ty Cobb, Jay Sekulow, for specific details on any search process outside of the White House, I would refer you to his outside counsel.

UNIDENTIFIED MALE: But who is his lead counsel?

SANDERS: I would refer you to outside of the White House, I would refer you to Jay Sekulow.

(END VIDEO CLIP)

MELBER: Jay Sekulow, who again, I don`t offer this as shade, Mike. But Jay Sekulow is not known for criminal defense work at all.

LUPICA: You know, Ari, I was thinking about Leonard Garment finally bailing out on Richard Nixon in the height of Watergate in 1973. Garment and Nixon were really close and he could see the way the things were going and he got out of there while the getting was good.

I ironic thing about the President`s legal problems to me is there is a perfect guy to be representing him in any matter, except that that guy, Avenatti, is representing the porn star who has come out after Michael Cohen.

MELBER: Why do you think they would be so good together?

LUPICA: Because he is -- I`m not comparing him in terms of anything other than legal style. Who was Trump`s legal hero, Ari? It was Roy Cohn.

MELBER: Cohn, yes.

LUPICA: OK. Roy Cohn, when he had first met Trump in the 1970s, he and his dad were getting a suit for alleged discrimination against black. What was Cohn`s first move? Sue for $100 million. Now the case got tossed, but that was his aggressive style from the start. He has been dead for 30 years and Trump to me has been looking for someone like him ever since.

MELBER: Right. And the question is, is whether Michael Cohen has been aggressive enough? And that brings me to a final question I want to ask you, congresswoman Waters, on a related matter, which is we are seeing more women come forward and not only speak out against these financial threats from the President of the United States, which as we reported has never happened before, never has a sitting President tried to find, of course, to fined women millions of dollars for speaking,

But number two, we are seeing these new suits of them saying that the President`s people, Michael Cohen as a longtime aide, are defaming them by calling them liars for speaking about their alleged history with Donald Trump. What do you think is the import of that and that as a legal strategy?

WATERS: Well, you know, I`m very pleased that, you know, the women are showing up. First of all, I don`t hear any real discussion about the $130,000 payment. Why was that payment made if that in fact nothing happened? If he had no contact with them, if he does not know them, he was going to sue them. And finally this suit has come out that is ridiculous and nobody really believes that it pays any attention to him in his attempt to sue Stormy.

But the fact of the matter that he has lied, he has said he had no contact, it was not an affair, yet, why was $130,000 paid? Did his attorney just somehow, you know, discover that maybe something happened and maybe I better go and find some money and maybe I better go pay off this woman to keep her quiet? It`s ridiculous.

And they know, these women know, that he is guilty of the kind of accusations that we have been hearing about so much in me too and what`s happening in Hollywood. Why should he escape? Everybody else that`s been pointed to and been accused have had to account for it or they are having to account for it.

MELBER: Congresswoman Maxine Waters, thank you as always for sharing your time and perspective with us. And my thanks to Mike Lupica and Natasha Bertrand.

WATERS: Thank you.

LUPICA: Thanks.

MELBER: Coming up, there is a new provocative argument from a senior DOJ official saying actually you could indict a sitting president. He is my special guest ahead.

Also, this silence from Trump on Stormy Daniels, the White House arguments and what`s really going on reportedly behind the scenes.

And later, there`s news breaking that Mark Zuckerberg is going to do something we have been talking about on "THE BEAT" for half a year. He is going to show up and speak to Congress.

And tonight, my special report on the most important story this week, is Donald Trump advancing torture at the CIA? My special guest, Katrina Van from "the Nation" joins me about that.

I`m Ari Melber. You are watching THE BEAT on MSNBC.

(COMMERCIAL BREAK)

MELBER: All right. This is not usually the top story, Donald Trump`s silence, his acquiescence, his public flailing in the face of a major attack on prime time TV. But we`re two days out from the Stormy Daniels interview. And Mr. Trump publicly quiet even amidst new leaks today that he is eager to defend himself, that he is increasingly frustrated with the wall to wall media coverage of Stormy Daniels. The silence itself drawing attention at the White House today.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Why the silence? Is somebody advising him to be silent or is he following his --?

SANDERS: I don`t think it`s silent when the President has addressed this, we have addressed it extensively. There is just nothing else to add. Just because you guys continue to ask the same question over and over and over again, doesn`t mean that we have to keep coming up with new things to say. We have address it. We have addressed it extensively. And there is nothing new to add to this conversation.

(END VIDEO CLIP)

MELBER: Nothing new. So the line on camera from the White House. But behind the scenes, "Washington Post" reporting a different story. That Trump did watch the much anticipated Sunday interview on "60 Minutes." That he is now peppering aides of questions like what they thought and calling allegations against himself a hoax. And adding that Daniels was incredible because, and I`m reading from a story here, folks, he says allegedly Daniels is not the type of woman he finds quote "attractive." A discipline somewhat notable, Trump discussing Stormy Daniels less than his own attorney general Jeff Sessions or Mitch McConnell on twitter.

Making his maiden voyage on THE BEAT, John killer bee Heilemann and Leah Wright Rigueur, a friend of the show and a Harvard professor.

Leah, I go to you first, quiet Donald Trump, what do you make of this new character?

LEAH WRIGHT RIGUEUR, PROFESSOR HARVARD UNIVERSITY: I mean, are we surprised that the person who has brought so much silence to us, to the tabloid President is being done at the hands of an adult film actress? This is the reality TV show presidency and the White House. And so I think subsequently, what we are seeing is a clamping down on the part of, you know, the staff surrounding Donald Trump saying right now, your silence is golden in more ways than one.

But of course, I think, you know, if Donald Trump were to speak, and were to speak out quite loudly, whether it be on twitter, whether it be with reporters, it opens up the door for all kinds of questions. And right now we have a woman, Stormy Daniels who will not be silenced. And so, that is in Donald Trump`s world, that`s a dangerous opponent and as an effective opponent.

MELBER: It is dangerous. And John, hello darkness, my old friend. The sound of Donald Trump`s silence is not something we are that familiar with and by his own estimation. Listen to Donald Trump making the case for always hitting back.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: If somebody hits you, you have got to hit them back five times harder than they hit you. You have to hit back. You have to hit back.

Anybody that hits me, we are going to hit them ten times harder.

I said, look, if somebody hits me, I`m going to hit them back. I have to. I`m not going to stand there like, I`m wonderful. I`m the President.

(END VIDEO CLIP)

JOHN HEILEMANN, MSNBC NATIONAL AFFAIRS ANALYST: How many times we heard from someone like Donald Trump is a counter puncher. That`s a standards in descriptions of the President. We have had Michael Avenatti on the show, on other shows, on Stormy Daniels` lawyer on this network a lot in the last couple of weeks. And one of the things he says over and over again is that they have fought, they, the President and his team. Michael Cohen have fallen in every trap he has set. He is playing three-dimensional chess. They are playing tic-tac-toe.

This is one instance where they are not falling into the trap, they, the President. The President, you know, if the President is trying to avoid one thing above all, is to be deposed, there`s a chance he is going to be deposed anyway. But if he gets, given the way that Avenatti has behaved, he has thrown lawsuits left, right and center on this. If Donald Trump goes on twitter and says she is a liar. It never happened. He is going to slap Donald Trump with defamation suit just like he slap Michael Cohen with the defamation suit the other day and just increases the odds that Trump ends up in a courtroom being deposed which does seem like the one thing Trump is trying to avoid more than anything right now is deposition.

Now, he has made mistakes that might lead him to get deposed in other areas. But on this one, it seems like he is actually being sort of smart to not give Avenatti more ammunition and more traction to get him dragged into that courtroom he doesn`t want to be in.

MELBER: Leah, how about that? John saying something that might not be that popular. It might cut against some of the conventional wisdom, but it suggests a canny President who is being very disciplined about this.

RIGUEUR: Or a staff that`s being very disciplined about this. I mean, we know from behind the scenes, and from all these reports, these alleged reports that Donald Trump does want to slap back, that he does want to fight back. He does want to punch below the belt and do all of these things.

But Stormy Daniels is not the person, and you know, her lawyer. These are not the people to do this with, because it opens up the door for all kinds of accusations. It also opens up the door for us to investigate and see this long pattern of misogyny, of thuggery, of intimidation that Donald Trump and his lawyers have done not just against Stormy Daniels, but against women much more broadly.

And I agree, you know, with the panel, with this idea of opening up the door to all kinds of investigations and all kinds of depositions that would uncover things that Donald Trump right now does not want uncovered and does not want to discuss in a public light.

MELBER: All right. Well, I just have to read a statement from him before we go on -- no, I don`t have -- no statement on Stormy Daniels? I got nothing.

HEILEMANN: I will just say, I mean, Michael Avenatti is right when he says the Trump`s silence speaks volume, though. I mean, I want to say it says a lot. I think it`s a rare moment of restraint on Trump`s part that he is not saying anything. But at the same time, it is also the case that by not saying anything, he is admitting the truth here. No one doubts he had this affair.

MELBER: And that leaves people at least clear on what happened, whether they want to vote or is up to the voters.

John Heilemann, Leah Wright Rigueur, thank you both.

Up ahead, my special report on Trump`s pick on the CIA which could be the most dangerous thing Trump is doing this year. I will explain up ahead.

Also, top DOJ official now arguing Trump can be indicted in office. He joins me on THE BEAT tonight.

(COMMERCIAL BREAK)

ARI MELBER, MSNBC HOST: Now to our special report tonight, a moral test facing America. At this moment, Donald Trump is effectively asking the U.S. Senate to promote torture because Trump is asking the Senate to promote a U.S. official involved in torture to run the CIA, nominating Gina Haspel, Mike Pompeo`s deputy for the job.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Gina by the way who I know very well, who I worked very closely will be the first woman director of the CIA, she`s an outstanding person.

(END VIDEO CLIP)

MELBER: Outstanding or not, Haspel is the most senior CIA official directly involved with overseeing and covering up torture in the Bush administration. So whether Trump meant to or not, this nomination fight now forces our government and all of us to again reckon with what the U.S. did after 9/11 and what we want to do about it now.

(BEGIN VIDEO CLIP)

DICK CHENEY, FORMER VICE PRESIDENT, UNITED STATES: There will be no peaceful co-existence, no negotiations, the struggle can only end with their complete and permanent destruction.

GEORGE W. BUSH, FORMER PRESIDENT, UNITED STATES: Make no mistake, the United States will hunt down and punish those responsible for these cowardly acts.

DONALD RUMSFELD, FORMER SECRETARY OF DEFENSE: We do not intend to stop until we have rooted out terrorist networks, and put them out of business.

CHENEY: We also have to work those sort of the dark side, if you will. We got to spend time in the shadows in the intelligence world and use any means at our disposal basically to achieve our objective.

(END VIDEO CLIP)

MELBER: Any means. That was the climate after 9/11 and Bush created an international torture system with prisons and black sites abroad where U.S. law might not reach in secret government memos directing waterboarding which they claim were only enhanced interrogation tactics, not actual torture. And there were the leaks of U.S. soldiers torturing and degrading Iraqi prisoners at Abu Ghraib in 2003.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: This man in Baghdad asks where is the human rights America talks about. Outraged at the treatment of the prisoners, Arab newspapers and television declared the U.S. knew better than Saddam Hussein.

(END VIDEO CLIP)

MELBER: Bush`s Defense Secretary Don Rumsfeld offered to resign over that scandal.

(BEGIN VIDEO CLIP)

RUMSFELD: These events occurred on my watch, as Secretary of Defense, I am accountable for them and I take full responsibility. If there`s a failure, it`s me, it`s my failure for not understanding and knowing --

(END VIDEO CLIP)

MELBER: But Bush kept the failure, Rumsfeld on the job, within months, Bush himself speaking out to deny any torture on his watch.

(BEGIN VIDEO CLIP)

BUSH: We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.

(END VIDEO CLIP)

MELBER: But the Bush administration did director torture. We have the files. We have the pictures. We even obtained the memos later withdrawn by the Obama administration. And while all these key senior officials kept their jobs, it was enlisted U.S. soldiers who were charged, convicted and sentenced to jail. Now, this is important. Every time you hear someone say, well, the U.S. doesn`t punish our own people for this kind of stuff, or it`s not fair to punish our own public servants for trying to keep us safe. Remember, we already did that during the Bush administration. Sergeant Javal Davis went to prison, so did Staff Sergeant Ivan Frederick and Specialist Charles Graner and Specialist Sabrina Harman. After Abu Ghraib, they lost their jobs, their careers, their freedom. The Bush approach was clear, punish the little people, protect their bosses, which brings us back to Gina Haspel because, like Bush and Rumsfeld, Trump is now promoting a senior person who oversaw torture. Haspel was the chief of the CIA black side Thailand in late 2002 when detainees were water boarded, threatened with illegal execution and subjected to other degradations.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Abd al-Rahim al-Nashiri who planned the USS Coal bombing was blindfolded, threatened with a gun near his head and a cordless power drill and given forced enemas.

(END VIDEO CLIP)

MELBER: The CIA`s own document say even hardened CIA officials were reduced to tears watching what was done to detainees at the site that Haspel ran. And while the Bush administration kept claiming that this torture was not torture because they called it other words, like enhanced interrogation, the fact caught up with them. Waterboarding was defined as torture under law. Revelations about these black site shifted public debate. It was even a conservative radio host who famously touted a plan to undergo waterboarding, to show that maybe it wasn`t torture, a stunt that didn`t go as planned when he lasted about 10 seconds.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: -- two, all right.

UNIDENTIFIED MALE: Water going -- all right, that`s it. That`s it.

UNIDENTIFIED MALE: All right, I don`t want to say this. I do not want to say this. Absolutely torture.

(END VIDEO CLIP)

MELBER: Barack Obama ran against torture in 2008. He reissued the bans against the techniques that Bush used on his first day in office.

(BEGIN VIDEO CLIP)

BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: We have to be clear and unequivocal, we do not torture, period. That will be my position as President.

UNIDENTIFIED MALE: President Obama signed his second order banning aggressive interrogation techniques, such as waterboarding, which many consider torture.

OBAMA: Waterboarding violates our ideals and our values. We could have gotten this information in other ways. In ways that were consistent with our values.

(END VIDEO CLIP)

MELBER: Obama stopped torture as policy and then at that time, those recent Bush administration torture allegations were investigated. Bush officials still denying those sessions were torture and then it turned out there were tapes of some of those sessions, over 90 of them, and investigators obviously wanted the tapes to review what happened. But in the middle of that open probe, the CIA destroyed 92 of these tapes, including tapes of a detainee at Haspel`s site. The New York Times reporting the order to destroy the tapes came from official Jose Rodriguez. Investigators probed whether others were involved, including Haspel, his top aide. Now, he later wrote it was Haspel who drafted a cable ordering the tapes destroyed. Other CIA officials say she was a strong advocate for getting rid of the tapes. The agency`s top lawyer says she persistently pressed for tape destruction, another CIA official though argued maybe she was just carrying out an order, it was her supervisor under that argument requesting the tapes go away. Leaders in both parties were outraged at the tape destruction which hampered any U.S. inquiry into what really happened.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I`m concerned about press reports that she was directly involved in a CIA black site in Thailand and then in destroying some of the records of what happened there.

UNIDENTIFIED MALE: There`s no evidence that she was protesting against torture, there`s every evidence that she was covering it up.

(END VIDEO CLIP)

MELBER: Covering it up, an outrage that led to a rarity in national security. A sitting CIA official denied a promotion when she was up for that in 2013. Haspel`s supporters insist that she was basically caught in the middle of policies made by other people above her head. The record we have though is damning. She oversaw waterboarding on the ground, and she help destroy evidence of that waterboarding to evade and open investigation. This is the record Trump is trying to promote right now. To endorse that and put this person in charge of the entire CIA rather than any number of other candidates. Now, maybe Trump heard about Haspel`s approach to destroying evidence, and maybe he thinks it`s a plus. Maybe he likes that approach to government investigations. Or maybe he didn`t know about it, maybe he doesn`t care. Maybe Trump heard about her views on torture though and maybe he likes that too.

(BEGIN VIDEO CLIP)

TRUMP: Don`t tell me it doesn`t work, torture works, OK folks. You know, I have these guys -- torture doesn`t work. Believe me, it works, OK. General James Mattis and he has stated publicly that he does not necessarily believe in torture. I don`t necessarily agree, but I would tell you that he will override because I`m giving him that power. I happen to feel that it does work. I`ve been open about that for a long period of time.

(END VIDEO CLIP)

MELBER: It doesn`t matter if torture works, it`s barred by our law and our Constitution and the President is bound to uphold that. It also doesn`t matter much what Trump says about this, it`s what he does. He`s promoting Haspel, handing the keys to the interrogation room to a person implicated in torture and covering up torture and reigniting this debate for all of us. Given what we know now, should this top CIA official be promoted to for the kind of thing that sent less powerful Americans to prison? Can America lead the world on the rule of law or democratic accountability if this kind of record is rewarded right now? You know, it`s become common in this Trump era to say nothing really matters. But if you think about it, that`s actually exactly what the people who get away with things want you to believe. This matters and the end of this story has not yet been written. The Senate has opposed Haspel before, many Democrats say they will oppose this pick. John McCain who survived another country`s mistreatment is criticizing her now and pressing for more answers specifically on her history with torture. Libertarian Rand Paul Says he`s already against her. So her nomination and our country`s view of torture right now in 2018, that hangs in the balance tonight. I turn to Katrina Vanden Heuvel, Editor, and Publisher for the Nation Magazine. She`s pen the Editorial, Gina Haspel`s Role in the Torturer Era Demands Attention and has been working on investigative stories along these lines for well over a decade.

KATRINA VANDEN HEUVEL, EDITOR AND PUBLISHER, THE NATION MAGAZINE: Thank you for your compelling report, Ari. It`s very -- it`s critical at this time. You know, we live at a moment when accountability has been defined down. The architects of the Iraq war, the architects of torture have not been held accountable and I think our country is on trial now, as the hearings begin, confirmation hearings. You laid out the key points why Gina Haspel should not be confirmed. There`s an additional I think note to be made which is that the Senate Intelligence Committee as you recall issued very truncated summery of its 6,700-page report in December 2014, which showed that CIA had lied to lawmakers and also the report concluded that torture was not effective in gathering accurate information. It`s also a illegal and immoral. I think it`s high time for Dianne Feinstein who produced the summary report in December 2014 to declassify not only the sections relating to Gina Haspel`s participation in torture and in destroying the videotapes but the full report. Senator Ron Wyden has called for that. Someone should read it into the report. I think it`s compelling. It is part of the public interest and I think it will play a very important role in what should be a bruising, tough confirmation hearing for Gina Haspel.

MELBER: And walk us through the way this works particularly the national security apparatus where a key technique is to say, you can`t really challenge this stuff, she`ll be promoted anyway, move on, there`s nothing to see here.

VANDEN HEUVEL: Well, move on is a very bad term in this context because we need accountability. I will say that President Obama who did issued an executive order banning torture and closing the sites, the torture sites. He decided to say we`re going to look forward not backwards. There are many who say he should have prosecuted the higher-ups, not just the smaller people as you said. We lost that opportunity. This is a moment I think for Congress to reassert itself. John McCain has been a good voice, Rand Paul. I think if the Democrats can hold the block in the Senate Judiciary and the Intelligence Committee, I think there`s a real chance to turn back this appointment and it would send a signal not just to this country, that this country stands for values it claims to stand for but to the world at a moment when the erosion of democracy and the rule of law is so jarring.

MELBER: And briefly, do you see any link between the way she conducted herself and the concerns about Donald Trump`s role in potential obstruction?

VANDEN HEUVEL: I see links but I think what`s critical is that the architects of endless war of Iraq of torture, the is war cabinet that they`d be repelled and held back and held accountable finally. And I will say something just in terms of media. You know, it`s very disturbing to see every night a lot of these intelligence chiefs speak on this issue, because you know, James Clapper perjured himself on NSA bulk data surveillance --

MELBER: The famous --

VANDEN HEUVEL: Yes, Brennan, McLaughlin -- I mean, these people as they weigh in for Gina Haspel have a record that they should be held accountable for as well. So I hope there would be more diversity of views.

MELBER: You`re concerned there`s an over-elevation of people who are bound up on this --

VANDEN HEUVEL: Of war hawks of intelligence people who are wound up and invested in maintaining this posture.

MELBER: Katrina Vanden Heuvel, Editor-in-Chief of The Nation" Magazine and my old boss, thank you for being here. I really appreciate it.

VANDEN HEUVEL: Thank you, Ari, for having me.

MELBER: Up next we have an exclusive on the potential indictment of a president, a former high ranking DOJ officials says actually you could indict a president. He joins me next when we`re back in 90 seconds.

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MELBER: Could Bob Mueller indict President Trump? Many experts say no, a view echoed by Trump`s legal supporters.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: A president cannot be indicted while a sitting president.

UNIDENTIFIED MALE: Is it possible for a sitting president to be indicted?

JAY SEKULOW, LAWYER OF PRESIDENT TRUMP: Well, there`s been -- office of legal counsel opinions going back almost 50 years that say no.

UNIDENTIFIED MALE: Y1ou must not, cannot indict a sitting president.

(END VIDEO CLIP)

MELBER: It`s not just Trump`s friends, DOJ lawyers under administrations in both parties have written that a sitting president cannot be indicted and tried in office. But one of the nation`s top legal experts, Walter Dellinger who represented the U.S. in the Supreme Court during the Clinton administration writes in today`s New York Times Mueller can indict a president and says might even be a good idea to preserve charges before any deadlines run out. Dellinger argued the famous Clinton v Paula Jones case in the Supreme Court when the justice`s rule a sitting president can be taken to civil court while in office. He didn`t resolve whether he can be taken to criminal court. And Walter joins me now. Thanks for being here. When you look at this issue, why do you come down differently than your colleagues?

WALTER DELLINGER, FORMER ACTING SOLICITOR GENERAL: Well, I think there`s never been given really serious attention to the question of whether you could indict a president, but then postpone any trial until he was no longer in office. You know, there is a 1973 opinion from the Justice Department, very thin, and then in 2000, another one. But the independent counsel that prosecuted the Watergate case, his staff was strongly of the view that you could indict a president, and he argued in court that a president could be named as an unindicted co-conspirator.

MELBER: Stay with me because you mentioned and I want to bring in a Special Prosecutor from that Watergate era, Nick Akerman. Why did you and your colleagues as Walter mentions stop as Nixon just unindicted co- conspirator, do you agree with him that you can go further?

NICK AKERMAN, MSNBC LEGAL ANALYST: Well, I guess, first of all, the reason we stopped was because the House was about to go through impeachment proceedings. So it would have made no sense at that point to indict the President. We might have done it after the impeachment proceedings, but the House was ready to act. Here you don`t have a House that`s ready to act. And they won`t act under these circumstances. Secondly, I agree with Walter up to a point, but I do not see why you cannot try this particular president. It all goes by the facts. Clinton argued that it would take away from his duties as president, because he was fully engaged. Here, you`ve got a president, one, who`s already brought himself to federal court in Los Angeles, suing a porn star whom he claims he doesn`t know, and he may have to show up there and testify as David Dennisson perhaps wearing a paper bag over his head because he doesn`t want anybody to know who he is. And second, you`ve got a president who is not fully engaged. I think just as people --

MELBER: I don`t understand that your argument is unlike other presidents this one can be indicted in office because he`s lazy and litigious?

AKERMAN: No, he can be tried in office. He could -- I agree with Walter, a president can be indicted. But I he can also be tried. And the reason - -

MELBER: Because he`s lazy and litigious?

AKERMAN: Well, part of it, and also because he can`t very well argue that it`s going to take away from his duties. He spends more time on the golf course than he does in the White House.

MELBER: So I want to go to Walter. Walter, listen, you discussed this with the late Justice Scalia in what was -- we`re talking with two people in the center of this president in the Jones matter. Take a listen to Justice Scalia making an argument somewhat similar to Nick right here.

(BEGIN VIDEO CLIP)

ANTONIN SCALIA, FORMER ASSOCIATE JUSTICE OF THE SUPREME COURT: President is, you know, it`s a full-time job and he`s very --and any intrusion upon his time is intruding. I must say, I don`t find that terribly persuasive. I see presidents riding horseback, chopping firewood, fishing for stick fish, playing golf and so forth and so on.

(END VIDEO CLIP)

MELBER: Playing golf and so forth, Walter.

DELLINGER: That`s right and you know, I argued and my response to Justice Scalia was that President Reagan has said that presidents don`t have vacations, they merely have a change of scenery. But the Supreme Court unanimously rejected the opinion, the position of the United States in Clinton against Jones and we wound up on the losing side for the United States and set a very high bar. Now, Nick, I don`t think it`s realistic to have a different rule for each -- for each president. We need you know, one rule for each president but it could play out this way. If a prosecutor, state or federal, were to indict a sitting president, his lawyers wound move to dismissing the indictment because he can`t be indicted and to postpone the trial if he could be indicted. Now, I think the postponement should be granted but if -- but you need to allow the indictment to lie because otherwise, the statute of limitations would run and the White House would become a sanctuary from justice.

MELBER: Right, you`re talking about -- right and whether the president is subject to the law which a lot of Americans are thinking about. Two renowned legal thinkers here both involved in precedence sort of discussing and creating this precedents. This is gentleman as they say, better than law school. Thank you for being on THE BEAT tonight, Walter and Nick.

AKERMAN: Thank you.

DELLINGER: You`re welcome.

MELBER: And from law school to being under the heat in Washington, Mr. Zuckerberg could be on his way there. I`m going to show you new reporting next that the Facebook CEO will talk to Congress.

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MELBER: Breaking news in the digital scandal that hit Facebook from Donald Trump`s digital firm. Facebook`s CEO Mark Zuckerberg now saying tonight he will testify in person before Congress. The New York Times reports he`s agreed to at least one Congressional hearing that would address data privacy but presumably give a chance for a lot of other issues including Russia to come up. Now, three committees have actually requested Zuckerberg`s attendance. Last week, he wasn`t committed to showing up anywhere in person. The Times says he`s convinced. Now, Zuckerberg has also ducked the British lawmakers today who asked him to come. They say that`s astonishing given what`s happened there. We previously reported that Zuckerberg met personally with Chinese officials to pitch Facebook and went all the way to Russia working on business there with the number two person under Putin at the Kremlin. That is the context for tonight`s news that is Mark Zuckerberg in this political financial scandal will be coming to testify as soon as April. You can bet we will be covering the story and what he says under oath. We`ll be right back.

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THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END