Show: THE BEAT WITH ARI MELBER Date: April 25, 2018 Guest: Byron Dorgan; Richard Blumenthal
ARI MELBER, MSNBC HOST: Good evening, Chuck. Good to be with you in Washington.
We begin our broadcast on THE BEAT with breaking news. I`m holding a letter that I just received that is President Donald Trump`s personal intervention into the Michael Cohen matter, his lawyer who is under criminal investigation, we have confirmed. This comes on an evening that we are also learning that Rudy Giuliani personally met with Bob Mueller as part of his new role in defending Donald Trump. That is interesting, controversial and also appears to reflect new negotiations about a Donald Trump interview with Bob Mueller.
The good news there from the Trump side is that Rudy`s working. The bad news is that somehow it leaking. These leaks to our knowledge don`t usually come from the special counsel`s office itself.
I`m going to be joined in a moment by an excellent panel on this. I just want to give a little context to this breaking news. This letter which is dated today, April 25th, and went just crossed the wires, is written from President Trump`s attorney to Judge Wood who will be overseeing a very high stakes hearing tomorrow in New York about all those very sensitive materials that were seized by the FBI in the raid of Michael Cohen`s office, of his hotel room and his home as well as the seizure of his phones. And this is something that I don`t think has ever been said before, at least not to my knowledge on the news.
The President of the United States is offering to make himself personally available for any review or screening of the evidence that the FBI seized of his lawyer. It`s an unusual offer to say the least.
And with that let me get right to a well assembled panel. Senator Richard Blumenthal is of course former prosecutor and member of the judiciary committee, former senator Byron Dorgan who has experienced many of these issues when you look at the investigations of the president and Eugene Robinson, Pulitzer-prize winning columnist from the "the Washington Post" which as I mentioned has broken some of these stories your colleagues have.
I`m going to go down the line. Dealer`s choice on which aspects of this you want to speak to.
And, senator, your view of what appear to be a lot of developments on the Trump side of the ledger in this investigation right now tonight.
SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: Well, this "the Washington Post" report assuming its true is extraordinary because it shows that the President is becoming even more entangled and embroidered in the Cohen aspect of this investigation. It has been thought that it was separate, but obviously the President has been deeply concerned and fearful about it. And now apparently he has taking steps to involve himself personally and possibly waiving any claim of attorney/client privilege that you might have here.
MELBER: And you just made an important observation that I would like you to expand upon. This matter, regarding Michael Cohen, was referred by Bob Mueller to New York because it was separate and jurisdictionally distinct from the open Russia probe. What you are saying is this letter, again, I got a lot of stuff here, but we will go through it. This new letter here to Judge Wood that`s breaking tonight is Donald Trump pushing these issues together of muddying them together because it suggests that he thinks he has a personal stake or exposure in the Cohen investigation, is that right?
BLUMENTHAL: His motives are difficult to discern and the legal advice he is getting here is even more obscure. But by involving himself personally, directly hands-on he is embarking on a course that is fraught with danger but it reflects a mentally on his part, apparently, that he and Cohen are joined at the hip legally and possibly practically in terms of where this investigation is going.
MELBER: And senator Dorgan, as you know, the Cohen investigation is being headed up by the top federal prosecutor in New York in the southern district, that`s a job that is pretty big in legal circles. It`s a job that James Comey held, that Preet Bharara held and that Rudy Giuliani held.
Reading from "the Washington Post" tonight here, Robert Costa and Caroline Leonnig story, they cite three sources to say that Giuliani as a new personal lawyer on behalf of the President has met with special counsel Bob Mueller, not his aides, but met with Bob Mueller. This was as recently as Tuesday to reopen quote "negotiations for presidential interview" according to three people. Why would Rudy in your view be reopening that investigation?
BYRON DORGAN, (D), FORMER NORTH CAROLINA SENATOR: I don`t know. I doubt that the President is ever going to be interviewed, honestly. And I think that Mr. Cohen is the holder of the secrets, you know, self-described, both he believes that and says that publicly. And I think the President`s actions underscore that the President believes that Trump -- that Mr. Cohen is the holder of the secrets here.
So we will see. This reminds me of one of those -- the maze in a corn field, you know, in thanksgiving. It`s easy to get in but you can`t find your way out. That`s the case for the President. It is very hard to find his way out of this because there`s so many different features to it.
MELBER: Gene Robinson, classic cornfield maze situation.
EUGENE ROBINSON, COLUMNIST, THE WASHINGTON POST: Yes. It is, obviously. First of all, do we know which of the President`s lawyers sent that letter? Is it --?
MELBER: Yes. Joanna Henden and Christopher Diser (ph) and Reed Keef (ph). This is the counsel from lesser known law firms, Spears and Eye Mus. So this is the President`s personal representation but not the President folks who are on the Russia side.
ROBINSON: Folks who are on the Russia side. So I don`t know what, if anything, is to be made of that since it`s being handled by them, maybe that`s an indication that he too sees the Cohen investigation as touching on different matters other than the Russia investigation, and those different matters are matters in which Donald Trump believes he has a stake, such as what was the Trump organization up to all those years before he ran for President, before he became President.
MELBER: Right, and what does Donald Trump know about that that makes him willing to be interviewed personally? I would note that this is -- because you are making an important nuance distinction. This is some of his attorney`s on other matters than the criminal defense team when in the NDA litigation with women that the President has sought to allegedly silenced. There were questions about his time and availability. He said he is not available for depositions. He is not, you know, going to be personally involved. This obviously a very different stance.
Panel, stays with me. Seth Waxman, a former federal prosecutor, I believe we have just added to the conversation. What does this mean to you?
SETH WAXMAN, FORMER FEDERAL PROSECUTOR: Well, I think that clearly these can be conflating these issues. I mean, you have the President of the United States who is now going to need to take time to answer questions with his lawyer and decide whether this material is privileged. So as we all may know, the privilege belongs to the client, not the attorney. So if there are emails in there, for example, with Mr. Trump sending Mr. Cohen to Russia, to open a Trump tower in Moscow, on the face of that, that doesn`t seem to be privilege. That sounds like a business transaction. So Mr. Trump`s going to need to explain to his lawyers how that could be seeking legal advice because if it`s not, it`s not privileged.
MELBER: Let me read a little more just for Seth from the letter and then go back around the horn. Again, this is brand-new, Seth. The firm here -- and again, they are speaking on behalf of the President here tonight. Says our own associates are well-qualified. They hail from the country`s best law schools. They work directly with partners on the firm. A confidential government investigation, civil litigation or both, are reference to their ability to go through this material they want before the feds have it with regard to the attorney/client privilege that the President may have. And they say, our client, that`s Donald Trump, will make himself available as- needed to aid in our privilege review on his behalf.
What does that even mean, Seth? Would that be Donald Trump and Michael Cohen and these other lawyers sitting around in New York looking at old emails?
WAXMAN: Well, I think practically speaking, what do you have is these are associates and more junior attorneys doing the initial scrub kind of getting rid of the chafe and all the emails that are noncontroversial. And when you get down to the ones that, you know, are damaging or, you know, have some questions as to the privilege, someone is going to need to compile what we call in our world key documents, walk them over to the President and present them to him and walk through how these documents are privileged or not privileged. And if there`s evidence of a crime in some of those emails --
MELBER: Right. I mean, I don`t want to put too fine a point on it, my friend. But I`m not sure in this instance the client would be the final word on the legal privilege?
WAXMAN: Well, he clearly would not. Ultimately, that would be up to the special master and the judge. But his lawyers are going to need to put a (INAUDIBLE) claim in front of that special master and ultimately maybe the judge or it`s for not. And the only person that can really tell his lawyers, you know, what was the intent behind these emails?
WAXMAN: What was the legal purpose of these emails or the best person I should say is the President?
MELBER: So, in your view is this weird?
WAXMAN: It is weird. It is definitely weird. I mean, I have done this with CEOs. And I will tell you, there is nothing worse than a lawyer having to get the time of a fortune 500 CEO and say, you know, Mr. Johnson or Mrs. Johnson, I want to sit down with you and start going through hundreds of documents. Their eyes glaze over and they have got more important things to do.
I can only imagine the more important things that the President of the United States needs to do, but obviously he is injecting himself because there is something very important to him in this process.
MELBER: Something important to him.
Let me go back down the line starting with Gene Robinson. This also goes to the case that the feds were making against Michael Cohen which, of course, is always a little awkward because they are federal prosecutors from the Trump justice department. They do that job well, they do that regardless without fear of favor.
Their point which goes to why they don`t think there`s a lot of privilege here, whether Mr. Trump, Donald Trump, President Trump wants to review this material or not is that they say Michael Cohen doesn`t do a lot of lawyering?
ROBINSON: Exactly. From all the reporting that I have seen, what Michael Cohen did for Donald Trump was basically two things. He was a deal maker and he was a fixer. But in terms of, you know, representing him in court, giving him legal advice as opposed to advise on a deal or advice on solving a problem like Stormy Daniels, you know, which I there are aspects of that maybe could be privileged, I don`t know. You are the lawyer. But he want, you know, a lawyer all the time he was dealing with Donald Trump. He was an aide.
DORGAN: And Ari, because of the role that Cohen played in Donald Trump`s life for a long, long time, I think everybody understands there`s potential jeopardy here. And my guess is, is that the Trump organization, the lawyers and others will fight this and battle this on and on as long as they can. There`s potential jeopardy for the President and I think they know it.
BLUMENTHAL: This kind of action creates a maze, but even more its legal quicksand for the President, because coming back to the point where we began, the southern district of New York has raided Michael Cohen`s office for money laundering, potential bank fraud, really serious stuff supposedly not involving the President. Now the President is injecting himself into his case because he fears he may be involved in it.
It`s legal quicksand for him. And my legal advice is worth what he is paying for it, but this kind of involvement, although perhaps typical of his hands-on attitude toward this stuff, really joins him with Michael Cohen in what has been a separate legal action. But it also indicates maybe he has some exposure and it also potentially makes him a witness in any proceeding involving attorney/client privilege because once he has reviewed these documents and once his lawyers are quoting him, he stands to be called as a witness.
MELBER: Right. The flip side, Gene Robinson if you talk to people who are most sympathetic to the President`s legal case, would be the argument that this is a sitting President and people around him should not be pursued on any pre-contextual (ph) basis just to get stuff on him.
ROBINSON: Right. OK.
MELBER: And so, you can imagine if you want to imagine a different President and a different privilege, imagine a doctor, and you say the doctor`s up for some maybe real crime but does that mean they can go through the President`s medical files willy-nilly before someone else gets involved?
ROBINSON: And you simply could make that argument. But you could -- you also make the argument that federal prosecutors cannot look away if they see potential criminal activity by somebody who has been very close to the President, like Michael Cohen, and indeed, the prosecutors in southern district of New York are not going to look away and Robert Mueller is not going to look away.
DORGAN: Let me just make the point that the entire referral to New York was based on belief that there probably was a crime committed or a series of crimes. That`s the basis of the referral.
BLUMENTHAL: The warrant is based on a finding that there was a crime. There has to be a crime committed and then that evidence is not only there in Cohen`s office and home and hotel room but that it`s potentially in danger of destruction or other kinds of obstruction.
MELBER: Right. And that an independent judge reached the determination you just mentioned knowing this is a sitting President`s lawyer. It`s no small thing.
I want to bring Seth Waxman into the point on why we are learning what we are learning. Because the only reason that "the Washington Post" is breaking this story is they feel firm about it. I can tell you Bob Mueller`s personal negotiations, the things that are important enough that he sits down and you see the headline breaking right now, Giuliani reopens negotiations about presidential interview with Mueller. But caution special counsel that Trump remains resistant.
I mean, that headline is really interesting, Seth, because it`s got a lot of -- talk about attorney/client privilege, it`s got a lot of very private material packed into a depiction of what`s going on. And I want to read from a former DOJ official, Matt Miller who many of our viewers know he worked under the Obama administration. He is responding to this right now posting on twitter. Congrats to Giuliani on doing such a good job professionalizing the Trump legal team that it took a full 24 hours for your negotiations with Mueller to leak to the press. Speak to that angle of critique.
WAXMAN: Well, all defense would prefer this stay behind closed doors. So if we are 24 hours in and now this is already being leaked out to the public, you know, that`s not ideal for the defense side. So I agree with Mr. Miller there.
But you know, we are heading down the same path it seems we were about a month or two ago, where we are heading towards this conflict between Mueller and Mr. Trump, the President in this under oath testimony and that is fraught with all kinds of perils. And I still question whether he is actually going to do that and really his only way out is to plead the fifth.
I know Mr. Rudy Giuliani carries a lot of weight and he has a lot of credibility being the former U.S. attorney from the southern district of New York and the mayor. But at the end of the day he is not going to be able to prevent the President from sitting in that room. The only thing that they can do that is the Fifth Amendment.
MELBER: This story is breaking right now if viewers look on the bottom of the screen, they will see that we are crediting "the Washington Post" which broke the Giuliani story, the reporter from the "the Washington Post" who broke that story, Carol Leonnig, has called into THE BEAT.
Carol, what can you tell us about your sourcing on this? How you got to this point and what its significance is?
CAROL LEONNIG, REPORTER, THE WASHINGTON POST (on the phone): So I don`t want to talk at all about the sourcing for this, but I will say that I enjoy Matt Miller`s commentary. But I don`t appreciate him saying that it was some great failure on the part of the defense that this story got out. It got out because of reporting.
And I would also just say that the significance from our vantage point covering this probe is that now you have finally in the helmsman position a lawyer leading the Trump defense and reopening these talks where they were a month and a half ago, which is will the President sit down voluntarily for an interview with Bob Mueller who is now seeking, quite clearly, to know did the President have any corrupt intentions when he took certain actions as the President and as the President-elect? Did he have any corrupt intention to thwart a criminal probe?
MELBER: Yes. I don`t think Matt Miller`s observation is about the quality of your reporting, but there are different ways things come out and I think --
LEONNIG: Oh, no, no. I`m being tongue in cheek, Ari. I enjoy Matt immensely.
MELBER: Yes. And I think what raises is, when I refer to your sourcing, obviously, I don`t mean the identification of your sourcing, but I read this story as you are very confident in your sourcing that these meetings are taking place. That they involve a Presidential interview which is a high level thing and that Rudy Giuliani, according to your reporting, is reflecting a type of road where the client, the President, is still quote/unquote "resistant" to the idea of this interview but it is back on the table. Tell us about that.
LEONNIG: So, I think a couple things are going on. One, Rudy is getting his sea legs in this case. He just arrived as of last week and so he wants to meet the person who is prosecuting/investigating this matter to size up a case and also size up the probe, like what is it exactly that Mueller still needs and wants before he completes what we have described as a partial report on his findings about obstruction.
The other thing that`s going on here is that ever since a raid at the home and office of Michael Cohen, one of the President`s closest confidants and his personal attorney, the President has deeply soured on the idea of sitting down with Mueller`s team. Why is that? Because he felt really caught off guard as did most of the Trump legal defense team, how could this have happened without them knowing?
The Mueller`s team is not leading that investigation. You would have to be kind of naive to believe that there isn`t going to be a day when Mueller wants to interview Michael Cohen about his behavior and interactions with the campaign and particularly in trying to talk to any Russians that might have wanted to connect with the campaign as well.
MELBER: I want to ask you and, Seth, the hardest question in the land these days, which is what does Bob Mueller thinking? But you notice in reading your story and I`ll go to you first Carol and then Seth, you know, as you were just referencing, you said the special counsel emphasizes the interviews essential to understand Trump`s intent in making key decisions as they try to wrap up the portion of the probe focused on potential obstruction. This, your report reflects the notion of this case moving in two parts and Mueller making a play for an interview on the obstruction part but anyone who is been around a tough prosecutor knows that what you say to get someone in the chair isn`t always the beginning, middle and end that happens during the interview. Your view and then Seth.
LEONNIG: Well, yes, of course. You are going to be calm and quiet and smiling as you ask a witness to come and sit down and chitchat with you. But you have also seen as the President`s lawyers have seen everyone who has sat down in that chair has some jeopardy. And there have been quite a few who have now either been charged or have pled guilty to lying to investigators. And once you sit in that chair and whether you are under oath or not, you could put yourself in increased danger. That is what Trump`s former lead lawyer warned the President over and over again. John Dowd said, Mr. President, all respect, you have to consider that you are jeopardy is low now and you will unnaturally and unnecessarily increase it by agreeing to an interview.
WAXMAN: Yes, I can tell you I think Bob Mueller and his team are licking their chops. I mean, this is what prosecutors wait for, the opportunity to cross examine and question the target or at least in this case we know subject of their investigation. And in those circumstances which Mr. Trump has been in before in the sense of depositions, but nothing is like sitting in a room with a bunch of federal prosecutors and FBI agents not knowing exactly where they are going, maybe not knowing exactly what documents they have and sitting there for hours and hours answering questions.
And the last point I would make is, you know, while this idea of obstruction may be out there and maybe that`s being dangled as an idea to get him in the room, I find it highly questionable that Mr. Mueller would stop at that point and not, you know, investigate or question him on the underlying crime -- potential underlying crime which, of course, is the conspiracy between the Russians and the Trump campaign to influence the 2016 election or at least the allegations of that. So in my opinion, if Mr. Trump walks into that room everything is on the table and those prosecutors --
MELBER: I`m going to break in because I`m holding a new document followed by Trump lawyer Michael Cohen within the last five minutes. And it says based on the advice of counsel, Michael Cohen, quote, "I will assert my Fifth Amendment rights in connections with all proceedings in the Stormy Daniels case due to, he says, the ongoing criminal investigation by the FBI and the U.S. attorney for the southern district of New York."
Again, if you are just joining us, Trump lawyer Michael Cohen asserting in writing in court for the first time, he will plead the fifth. Something that you do because on the advice of counsel or based on what you know about what you have done, you don`t want to confess to a crime -- Seth?
WAXMAN: Of course he is. Of course he is. You have a federal prosecution or investigation centering in on you. Your home, your apartment, your hotel room has been raided and you have got some civil lawsuit out there. I mean, I know in the context of this case that civil lawsuit is getting all kinds of attention. But a civil proceeding is far, far down the line and in degrees of importance when your life and your liberty are at stake in the southern district of New York.
So, of course, he is pleading the fifth because he has to do everything he can to protect himself right now.
MELBER: Senator Blumenthal, your reaction.
BLUMENTHAL: Speaking as a former federal prosecutor as well as now a member of the judiciary committee, I think Donald Trump`s position in doing an interview is completely different from Michael Cohen. Michael Cohen can plausibly plead the Fifth Amendment. His office has been raided after finding of a crime. The connection --
MELBER: To that end and I`ll pass the mic back to you, but to that end, because I want to read we just got this document. In the same sworn statement Michael Cohen says on April 9th the FBI executed three search warrants on my residents, office and hotel room without prior notice during the corresponding raids, Michael Cohen says and this is breaking right now, the FBI seized my electronic devices and my possession which were relate to information about the payment to Stormy Daniels and then he goes on to say, on April 10th I first realized my fifth amendment rights were being implicated as I considered the events of April 9th which backs up the point you are making.
BLUMENTHAL: And the material and letter that we`ve just discussed links Donald Trump to Michael Cohen, but Donald Trump cannot just automatically and unboundedly reject a request to be interviewed because in my view the investigation cannot close without bringing Donald Trump into an interview or a subpoena for him to appear before the grand jury. I think special counsel must subpoena the President.
MELBER: In your view of Carol`s reporting here that`s breaking this hour that Mueller views it as quote "essential?"
BLUMENTHAL: And I think it is essential that Donald Trump not only be interviewed, but if he refuses, could be subpoenaed before the grand jury. He has a right to the Fifth Amendment. As we have all told clients and juries and judges, the Fifth Amendment itself, if invoked is not an admission of guilt. But for Donald Trump, the American public would see it as an acknowledgement of criminal culpability pleading the Fifth Amendment.
DORGAN: Yes, you know, I`m seldom surprised any more by anything. I`m not necessarily surprised by Mr. Cohen taking the Fifth Amendment. As I indicated, the reference of the case to the U.S. attorney in New York was because there was a notion there was crime or crimes involved. So I`m not surprised by the Fifth Amendment issue here but of Cohen taking the Fifth Amendment.
I again say that I think he is the one person in this country who poses very significant jeopardy because he is the keeper of the secrets. And I think President Trump knows that and that`s a significant problem for him.
ROBINSON: So my understanding is Michael Cohen says he will take the Fifth Amendment in the proceedings involving Stormy Daniels, correct? But in at some point, one presumes, the prosecutors from the southern district of New York will want to speak with him about whatever it was they were raiding his office and home --
MELBER: I mean, typically at this stage, they would either want to speak to him or they would go ahead and indict an individual without speaking to him.
ROBINSON: Right. So, you know, one question is, does this intention to take the fifth cover that as well given the reference in the letter to the events of April 9th, but it doesn`t seem too specifically -- look, his -- one is options after a federal prosecutor and the FBI have raided your hotel room, home and office and seized a bunch of documents that they think indicate some crime that you are guilty of, your options are constrained.
ROBINSON: They are very narrow and you are going to have to decide whether you are going to try to tough it out in some way or are you going try or you are going to cooperate.
MELBER: Well, and to Gene`s point, I will put it up here because again, we are getting a lot of paper as we go. This is the pleading from Michael Cohen. This is the first time the President`s lawyer has sworn to a court that he will plead the fifth in any matter. This matter is him saying explicitly based on the advice of counsel. I will assert my Fifth Amendments rights in connections of all proceedings in this, Stormy Daniels case.
So it`s about this. It doesn`t tell us about the rest. But as some of our experts have noted tonight, if you`re pleading a fifth in the civil case, obviously, you are concerned about the bigger enchilada, the criminal case.
Now I bring to join -- our whole panel stays because we are going to stand this breaking story. But I bring on an even bigger enchilada. The one and only, Mike Lupica for the "New York Daily News."
Thank you for being part of what is now our breaking coverage. I know you have been listening in to our esteemed panel. Your reaction to this news?
MIKE LUPICA, COLUMNIST, NEW YORK DAILY NEWS: Well, Ari, I think we have been in the same lane on this all along and people have watched this thing play out. All we see on twitter is no collusion and witch-hunt. So a logical person would say, if there`s no collusion and this is all a witch- hunt, why wouldn`t you sit down with Robert Mueller and answer all the questions he has if you`re completely innocent?
And last week when he was saying, well, Cohen`s not going to flip on me, well if you`re not guilty of anything, why are you worried about anybody flipping on anything?
I`m just sort of amused that Rudy Giuliani has become involved in this process because if you live in New York City and you have watched this guy and his image sort of shrink to the size of a jockey over all the years since 9/11, I`m not sure if I were in some kind of jam I would want him to try to plead my case in the people`s court on television. But again, if this President is innocent, if there is no collusion, if his campaign did nothing wrong, why is he resistant to sitting down with the special counsel?
MELBER: So, Mike, you are raising the point that Donald Trump online, on twitter talks tough about his defenses, but then you are saying offline he doesn`t appear ready to actually deal with the questions from Mueller, is that what you are saying?
MELBER: And this is -- this is sort of a drake critique where he says some people don`t really be the same offline, is that what you`re saying about the President?
LUPICA: Don`t try to trick me with that stuff, OK, because I`m easily tricked with music lyrics. I have watched this thing play out --
MELBER: Do you feel like a witness in this probe? You`re worried the questions are tricks?
LUPICA: Yes. But I don`t have to sit down with Mueller, he does.
MELBER: Well speak to the "the Washington Post" reporting. And for folks who jut joining us, "the Washington Post" has broken the bombshell that Rudy Giuliani didn`t just join the team he went and did a one-on-one with Bob Mueller and reportedly is telling Mueller I`m trying to get you this interview but I can`t get my client, the President, Donald Trump to do it yet.
LUPICA: I don`t know why -- it`s interesting to me that Rudy Giuliani has this meeting -- this notion that he`s like holding some cards here. Mueller is holding all the cards, OK. Obviously he wants to sit down with the President and get answers to all the questions he has waited over a year to ask him, but if this is some -- Ari, you have to explain to me because you are a lawyer. In a negotiation like this, what does Giuliani have if his own client is resistant to having this meeting?
MELBER: Well, you raise a great question. Always helpful that I don`t have to moderate as much. Let`s ping your question around the panel.
Senator Blumenthal, of course, for the judiciary committee, well, I see your federal prosecutor. Speak to that question.
BLUMENTHAL: Well, it`s a great question. And what he has is not so much a legal position as a political one, the President of the United States is the President. He has enormous power and also enormous (INAUDIBLE) through his twitter account, his base, his following in the United States Congress and the special counsel. Here is a really important point, Ari, continues to be under threat from the President of the United States who twice has tried to fire him. That`s why the Judiciary Committee tomorrow will consider and I hope pass legislation that protects the special counsel against firing. That question is very timely.
MELBER: I want to take that question and pursue it. I also want to play something that`s coming just into our newsroom which is the legal opponent to Michael Cohen in all of this is a man named Michael Avenatti who viewers have seen I`m sure on television. He has just spoken out about this. It is remarkable -- do we have that? This was after last week but the point stands. I think we`re seeing what he predicted basically come to fruition here with the toxicity of Mr. Cohen. Let`s listen to that.
(BEGIN VIDEO CLIP)
MICHAEL AVENATTI, LAWYER OF STORMY DANIELS: He is radioactive. Anyone that had any contact with this man in the last 20 years should be very concerned about what secrets of theirs are within these documents.
(END VIDEO CLIP)
MELBER: This can look like bluster and I`ve mentioned this when we cover Mr. Avenatti as well as when he`s in the studio, Senator, which is he has a very clear stake in this and he is an opponent to Mr. Cohen. Having said that, it is, as we reflect on all of this, it is Stormy Daniels and the attempt to silence women and Mr. Cohen`s role as a fixer and his fight with Mr. Avenatti and her client that helped get us to this point, this rather extraordinary point that we`re in tonight?
BYRON DORGAN (D), FORMER SENATOR, NORTH DAKOTA: Yes, I mean, it`s sort of drip, drip, drip and then it becomes a gusher. I mean, it`s -- I guess you don`t want him as I was watching him on television the last couple of weeks, you don`t want him as an opponent in my judgment and with respect to the Giuliani piece, Mike`s description of the image becoming the image of a jockey, you know, shrinking to the image of a jockey, I think the choice of Giuliani to represent Trump is byzantine. I mean, I don`t have the foggiest idea --
MELBER: What do you mean by byzantine, sir?
DORGAN: I just -- well --
MELBER: Bringing the erudition to THE BEAT.
DORGAN: I`m not even sure I know what I mean, Ari.
MELBER: You mean -- are you saying in a nice way that it`s a bad choice?
MELBER: OK. I understand that.
DORGAN: Or not so nice way, perhaps.
EUGENE ROBINSON, COLUMNIST, THE WASHINGTON POST: I would -- I think it`s probably a bad choice. I mean, maybe he`s the only person who can talk to Trump, right, and make him make sense. So in that case, you know, in that sense maybe it`s a good choice but remember it`s been a while since Rudy Giuliani has practiced law in this way. He has been basically a political figure.
MELBER: Yes, and the quality to this -- it`s almost like is it Trump`s lawyers or is it former lawyers who are back working for Trump?
ROBINSON: Well, you know, maybe it`s just me, I would want somebody who`s at the top of his game.
MELBER: Who`s in the game.
ROBINSON: Exactly. Like if you have to have an operation, you want a surgeon who does it all the time, has done it recently --
MELBER: I think it`s a fair point.
ROBINSON: You know, but if the surgeon says, well, I did that ten years ago and I think I remember how I don`t want that surgeon.
DORGAN: I agree. I agree.
BLUMENTHAL: There are really serious capable criminal trial lawyers who will evaluate every legal question, have great instincts and gut because they`re in the courtroom day after day and Rudy Giuliani simply is not one of them. But if you take the President`s vetting of his cabinet secretary and his most recent nominee, the V.A. Secretary, who is about to almost certainly go down, there`s no clear path for Ronny Jackson to become the next V.A. Secretary, the level of vetting and review and scrutiny and consideration has been pretty abysmal.
MELBER: So you are speaking -- you just -- you just broadened it to where we are tonight, which is breaking news that some of the people that this President has picked off the T.V. screen, off the conservative political wagon, out of the green rooms at Fox News as well as down the hall because it was his doctor down the hall, so put him in charge of all veterans health care, don`t vet him, all of this together is a portrait of a person who has been pretending to be a chief executive for much of his life and performing in that way obviously endeared him to some people. And The Apprentice at one point was a highly watched show that pretended to be about a business but it was pretend. And you`re saying that we`re seeing the holes in that when it actually gets real and then you put that alongside the messages that he`s sending to Michael Cohen, so for both of our guests, Seth and Lupica, take a listen to Donald Trump`s reaction here when he was asked about the pardon idea for Michael Cohen this week.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Mr. President, what about Michael Cohen, are you considering a pardon for Michael Cohen?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Thank you very much.
UNIDENTIFIED FEMALE: Let`s go.
TRUMP: Stupid question.
(END VIDEO CLIP)
MELBER: Seth, what do you think about that response?
SETH WAXMAN, FORMER SOLICITOR GENERAL OF THE UNITED STATES: Well, the pardon is always been the x-factor in this case. You know, in a normal, criminal case with the evidence against Paul Manafort, one would have thought he would have already flipped much like Mr. Gates. So why hasn`t Paul Manafort flipped? You know, has Mr. Trump conveyed to him in words or substance that that pardon is out there? So I think that the reporter who asked that question is asking a very relevant question and Mr. Trump`s deflection of that or refusal to answer it may beg the question of you know, more about the pardon than it answers. So you know, I`ve always thought that the pardon question in this matter, whether it`s for Paul Manafort or Michael Cohen and the pardons that he`s now issued to Scooter Libby is really the x-factor that no criminal defense lawyer or criminal prosecutor can really answer because it`s something that only the President of the United States holds the power to do and the only constraint in my mind on that pardon power is obstruction of justice, And that would be ultimately, in my opinion, something that would be decided by the Congress in an impeachment proceeding. That is outside the normal courtroom that you know, all the lawyers that are talking and speaking on T.V. and representing these players really have ever been involved in.
MELBER: And that`s where a lot of the questions go and why the president is unlike any other client. If you`re joining THE BEAT, we have been covering over half an hour straight of breaking news with Rudy Giuliani meeting with Bob Mueller promising a presidential interview with President Trump`s lawyer Michael Cohen saying for the first time in a sworn statement he will plead the Fifth on the grounds that he might incriminate himself in the Stormy Daniels matter as well as the news breaking here that President Trump says he will personally get involved in the Michael Cohen case by reviewing materials to avoid the Feds having them because of alleged attorney/client privilege, all of that here in the last half hour or so. So my special thanks to a special panel. Senator Blumenthal, Senator Dorgan, Eugene Robinson, Seth Waxman, Mike Lupica, we`ve really benefitted from your incites on what is a breaking story. I can`t make it up if it`s breaking. We have a lot more in the show including the stuff we actually were planning to do tonight. A big test for the Trump travel ban at the Supreme Court, the Executive Director of the ACLU is here with arguments about whether Trump`s own words hurt his case.
(BEGIN VIDEO CLIP)
TRUMP: This is a watered down version and let me tell you something, I think we ought to go back to the first one and go all the way.
(END VIDEO CLIP)
MELBER: That`s not all. Former DNC Chair Donna Brazile with her first live interview on television since the big DNC lawsuit against Russia and the Trump campaign was filed. I`m Ari Melber and you`re watching a special Washington edition of THE BEAT on MSNBC.
MELBER: We are back on THE BEAT with breaking news tonight. Michael Cohen, the President`s lawyer pleading the Fifth for the first time in sworn testimony in the Stormy Daniels case as well as Rudy Giuliani reportedly meeting with Bob Mueller personally this week to discuss reopening negotiations for a Presidential interview between Mueller`s team and Donald Trump, a high stakes gambit from the new member of Donald Trump`s criminal defense team. Let`s turn immediately here in Washington to Donna Brazile.
DONNA BRAZILE, FORMER CHAIRWOMAN, DEMOCRATIC NATIONAL COMMITTEE: Hello there.
MELBER: Hello! Nice to see you. You are someone who figures into all of this because your name arose in the 2016 matters that are under criminal investigation. You also are an experienced Washington hand. What does it say to you that Rudy Giuliani is trying to take this tact and that Michael Cohen at the same time is pleading the Fifth?
BRAZILE: Well, there`s no question, I think that the Trump team is in panic mode. They are reaching out now to try to, you know, get this investigation to end. The cloud is not just over them but the cloud is now, I believe, hurting their ability to get out their message every day. You see with Rudy Giuliani trying to you know, wrap this up. He said he could wrap it up in two weeks. I mean, really? And now you know, Mr. Trump`s personal attorney pleading the Fifth. This is not going to wrap it up. The cloud is not going to move away. I do believe much more is going to come.
MELBER: What is your evidence of panic?
BRAZILE: Panic by reaching out to Rudy Giuliani and not a more experienced lawyer in terms of handling matters like this, and also I think that, you know, Mr. Trump said in the past, he said why plead the Fifth if you`re innocent? I mean, I don`t -- I don`t get why Michael Cohen is now pleading the Fifth.
MELBER: Let me read that quote. Myself as an attorney, I know people have all kinds of rights and I don`t prejudge their invocation of those rights, but that`s just me. You`re referring to the President`s standard and whether his lawyer is following the President`s standard because he said, "the mob takes the Fifth Amendment. If you`re innocent, why are you taking the Fifth Amendment? And he added, when you have your staff taking the Fifth Amendment, I think it`s disgraceful." MSNBC -- Steve Bannon flagging that 2016 quote from Trump.
BRAZILE: I remember that quote because I remember how Donald Trump went after not just Hillary Clinton but he went after Democrats, he went after ordinary people. And so for his personal lawyer in a case that I think has great huge ramifications for the overall situation that he`s facing, to take the Fifth doesn`t seem to be a good strategy.
MELBER: I`m going to push you on something.
BRAZILE: Go ahead.
MELBER: You worked with the Clintons. Donald Trump trying to avoid this interview. Bill Clinton, as you recall, spent quite a bit of time-fighting off whether he would ever do an interview with then-Independent Counsel Ken Starr. Is it within a sitting President`s rights to fight and potentially withhold their interview?
BRAZILE: You know, this is a different situation as you recall what happened back in the 1990s with Bill Clinton, I was -- I was actually on Capitol Hill at the time, but the President did go forward and do the interview. I understand and I`m not a lawyer like you, I understand lawyers are saying, you don`t -- you don`t walk into a room because this is a trap and you don`t know what can happen but the director is trying to get at the heart of what happened in 2016 and as well as this so-called obstruction issues. I think the President owe it to the American people to sit down and say, look, here`s what I know. I had no idea that Manafort was having these back room conversations or my son went into these meetings or other officials identified with my campaign. Why not just come forward so that we can get to the bottom of what happened in 2016?
MELBER: Now, let me make an observation about you that some of our viewers may not know. You`re not only persuasive, Donna. I have seen you be persuasive with people with whom you disagree, with Conservatives, with Republicans up at Harvard. Take us inside the process of Rudy Giuliani doing what political people do trying to persuade Donald Trump, actually, I just met with Mueller this week, all brand-new, and it`s in our interest, if we want to wrap it up quickly, the fastest thing we can do is sit and do this interview. Do you think with your knowledge of these players that Rudy has any hope of moving, persuading Trump?
BRAZILE: You know, I think Donald Trump believes in his own abilities. He believes in himself and so I`m sure he`s the one sitting in a room, I can take care of this, I can solve this. Because remember, this is a guy who is not lacking in confidence. On the other hand, you need some legal ability or some legal advice as to whether or not the President might be walking into what some of his friends and colleagues are saying, a trap, I don`t really know because I don`t know what the President --
MELBER: So does Rudy appeal to his confidence and say you got this?
BRAZILE: I think Rudy appeals to the law and say Mr. President, you have something to give to this investigation, go forward, but if not, let`s just let this investigation wrap up without you.
MELBER: Now I want to turn to the reason we did invite you on the show tonight. We`ve had so much breaking news. When there was a Watergate break-in, the Democratic Party responded with a lawsuit against the alleged perpetrators.
BRAZILE: That`s correct.
MELBER: This party of which you have been a leader in many forms is now doing that, and it`s easy to forget because so much is going on.
MELBER: Those moments at the very pivotal period in the convention when these e-mails were weaponized and they may have exposed as we pointed out on air important things, but they`re also weaponized for a very clear espionage purpose. Let`s look back at when you were actually the person brought in because the other chair was ousted partly over outrage over these emails.
BRAZILE: That`s correct.
(BEGIN VIDEO CLIP)
BRAZILE: As your incoming Chair of the Democratic National Committee, I promise you, my friends, I commit to all Americans that we will have a party that you can be proud of.
(END VIDEO CLIP)
MELBER: That phone call went to you, they needed you. What do you know now that you didn`t know then and why do you believe this lawsuit is important?
BRAZILE: You know, at the end of the 2016 campaign, I was quite worried that nobody, not the media, not our public officials would address what had happened to the DNC and of course others. We put together a very concrete timeline of the incident. We gave it to certain members of the media, but we also went to outside counsel to seek their advice. Before leaving the DNC I had an outside law firm draft up a complaint but we didn`t have enough information. We now --
MELBER: So that was back -- this complaint in your view started all the way back when?
BRAZILE: Back in the -- soon after the election and In January and February of 2017 --
MELBER: So what was just filed originated then?
BRAZILE: No, this is a separate complaint because this complaint is a different law firm. I think the DNC has done a terrific job and not just outlying the egregious offense that took place, but we now have more information as a result of the investigation of the various individuals involved from the Trump Campaign and others who perhaps colluded or conspired with the Russians --
MELBER: Right. And using that -- and using the case --
BRAZILE: To weaponize. We want -- we want this to come to justice to prevent this from happening again this election cycle.
MELBER: Donna Brazile, thank you for joining us.
BRAZILE: Always a pleasure.
MELBER: what we`re going to do is fit in a quick break. The most significant test of Trump`s presidential power to date happened today in Washington at the Supreme Court and I`m going to tell you why when we`re back in 90 seconds.
MELBER: Today, the Supreme Court began deciding the most significant test of Trump`s power to date. Trump`s controversial travel ban hitting the court. This is a ban that began all that chaos in the first month in office, confusion at the airports, protest and frustration around the country. Now, those memories are part of the record the court scrutinized today. The problems at the airport turned into emergency lawsuits. I was actually out covering the first federal court to rule against the ban in New York, which blocked the ban on its first full day in effect. So that was the unusual road to the Supreme Court today. On THE BEAT right now, we`re going to take you inside highlights from the court and then turn to probably the best guest on this topic in the nation, the National Executive Director of the ACLU. Now, his opponent today was a lawyer from the Trump Justice Department who insists this wasn`t a Muslim ban. He actually argued if Trump said that the whole thing would be illegal on its face. He referred to the facial illegitimacy of that kind of executive action.
(BEGIN AUDIO CLIP)
NOEL FRANCISCO, SOLICITOR GENERAL OF THE UNITED STATES: If the President actually did make that statement, I want to keep out a particular race or particular religion no matter what, that would und mine the facial legitimacy of the action.
(END AUDIO CLIP)
MELBER: He`s saying with facial legitimacy that would be illegal. Now, you don`t need to be a lawyer to notice something weird there. Trump did campaign on a Muslim ban, more on that in a moment. But today the DOJ is arguing the court should look to the text of the travel ban, not in the past statements. Now, critics of this travel ban put all their faith in lawyer Neal Katyal. He`s argued before the court for President Obama, and he`s been on this show you may recall. He said this is about more than discrimination; it`s also about whether Trump can steal power from Congress.
(BEGIN AUDIO CLIP)
NEAL KATYAL, LAWYER: If you accept this order, you`re giving the President a power no President in 100 years has exercised an executive proclamation countermands Congress`s policy judgments.
(END AUDIO CLIP)
MELBER: That`s an important moment. He`s referring to how federal law already prohibits discrimination on religion or on what country you`re from. And while the travel ban does target people by country, national origin, that would seem to conflict. So Katyal was saying today even if this isn`t a Muslim ban, the court should not give Trump the power to undo what Congress did.
(BEGIN AUDIO CLIP)
KATYAL: He says well, you know, we`re discriminating at the entry side, not at the visa side. If you do that, you are giving the President the power to undo. And he`s actually just done it. He`s undone the ban on nationality-based discrimination, he`s 1imposed country quotas of zero for these countries at the border.
(END AUDIO CLIP)
MELBER: Katyal is saying Congress legislated against bans on national origin so Trump can`t set a quota of zero without already breaking that law. Now, the Trump DOJ pushed back. They argued the President has his own authority to make judgments about security and also to make exceptions. Now, the Supreme Court has generally been skeptical of using campaign rhetoric to decide a case. Consider a less controversial example than this one. Remember Candidate Obama said on the campaign trail that ObamaCare was not a tax, then the Supreme Court put it to the side and upheld the law as a tax. Now, my point here is not that the travel ban is ObamaCare. The Justice Department though is arguing that the Supreme Court doesn`t usually hold campaign rhetoric against presidents. But there is a rebuttal for that. Katyal saying he doesn`t need Candidate Trump to show the bias. He argued President Trump rekindled all of that nasty rhetoric against Muslims during the campaign by tweeting out as President those virulent videos and he argued the White House doubled down on all of that by saying his tweets are official statements.
(BEGIN VIDEO CLIP)
KATYAL: After the executive order, this latest executive order was promulgated, the President tweeted these three virulent anti-Muslim videos and then the press spokesman was asked, what does this means? What does this about? And the answer was: The President has spoken about exactly this in the proclamation --
UNIDENTIFIED FEMALE: -- new controversy facing the President. He`s is under fire both here and abroad this morning for sharing inflammatory anti- Muslim videos on Twitter.
SARAH HUCKABEE SANDERS, PRESS SECRETARY, WHITE HOUSE: Look, I`m not talking about the nature of the video. I think you`re focusing on the wrong thing. The threat is real and that`s what the President is talking about is the need for national security.
(END VIDEO CLIP)
MELBER: That was the White House defending is those tweets that were at issue in court today. And it gets worse because the White House has said Trump`s tweets are official statements.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Are President Trump`s tweets considered official White House statements?
SEAN SPICER, FORMER PRESS SECRETARY, WHITE HOUSE: Well, the President is the President of the United States so they`re considered official statements by the President of the United States.
(END VIDEO CLIP)
MELBER: Does this all come down to what Trump said and what he meant? Do campaign speeches and tweets mattered less than the words Trump used in the ban itself? You know, Miley Cyrus once said if you mean it, I`ll believe it. If you text it, I`ll delete it. Did Donald Trump really mean it when he pledged to ban Muslims? We all heard him. And who decides if he can just delete that pledge of illegal religious discrimination? Is that his call or the court`s?
Joining me now is Anthony Romero, the Executive Director of the American Civil Liberties Union who`s led the charge on the ACLU`s lawsuit against the travel ban. You are part of this effort. It`s been a resistance. What do you think happened in the courtroom today?
ANTHONY ROMERO, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION: Well, it`s hard to guess you know, from the courtroom. It`s always hard to read tea leaves from the questions from the justices, neither grappling with some of the thorny issues. They`re basically two buckets of arguments that were in front of the court. The statutory arguments about whether or not this proclamation runs afoul of the statute enacted by Congress in 1965, and then the constitutional arguments about whether or not it violates protections under the First Amendment, whether it violates the establishment clause and freedom of religion.
MELBER: Is it a religious ban?
ROMERO: Yes, it is. It`s a religious ban, it`s a Muslim ban. They had a lot of conversation as justices do and lawyers do talking around the elephant in the room. How can anyone be doubt -- how can anyone doubt that his is a Muslim ban? 150 million people affected by it, five predominant Muslim countries. They added on North Korea and Venezuela just to gussy up the pig but it`s still a pig. It`s still a Muslim ban.
MELBER: One of the most frustrating things about the law can be is how exclusionary it is towards anyone else. It`s hard for people I think, to look at this process there today and understand why it`s such a tough call for the judges to figure out whether there is a religious part of this, given what the President said and a national origin part as I was just discussing if it basically bans my country.
ROMERO: And it should be pretty clear. I mean, it clearly is a ban based on national origin which runs afoul of the 1965 immigration nationality act. So the question is then, and Neal Katyal who did a great job arguing to the court also talked about how it took a wrecking ball to the way that Congress rejected a blanket ban and wanted to insist on individualized hearings with a granular process.
MELBER: Do you think that you`re more likely to win on that grounds?
ROMERO: I think it`s one of the stronger grounds. I think second grounds are equally clear. I mean, the constitutional arguments, what does a reasonable person think the executive order is, the proclamation is? I mean, he campaigned on a Muslim ban. He became president. He promised a Muslim ban. He did 1.0 executive order which is clearly a Muslim ban, 2.0 struck down, 3.0 --
MELBER: But Neal Katyal seem to really hit his stride on that other part, on the fight with Congress part and you have a lot more legal experience than I do but it made me wonder whether there`s something he thinks in terms of his strategy, in terms of Justice Kennedy, that he might win not on religion but on that way.
ROMERO: And Neal is an excellent strategist. And so he understands the way to bring Kennedy along. All eyes on Kennedy. We`ll make any argument we can on our heads if we need to the convince Justice Kennedy. So the statutes of the arguments are very clear and it runs afoul of the whole idea of the executive branch cannot trump Congress and override the INA.
MELBER: Let me play another important moment from inside the courtroom. There`s been a lot of talk about whether people will resign over what Trump does. Jeff Sessions reportedly threat that he might on a Mueller issue. Rod Rosenstein talking about what would happen if he left. Don McGahn, the White House Counsel threatened to resign. Who is left? Well, here was that very idea in the travel ban context that came up in court.
(BEGIN VIDEO CLIP)
SONIA SOTOMAYOR, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES: It was argued in a case this week about the unitary executive theory, which basically says the President is at the head. If we take Justice Kagan`s hypothetical president, who basically says to his review committee, I want to keep out Jews, period, find a way.
FRANCISCO: I would expect that if any cabinet member were given that order, that cabinet member would refuse to comply or resign in the face after plainly unconstitutional order.
(END VIDEO CLIP)
MELBER: Do you believe that`s true, the DOJ saying that`s how it would go down?
ROMERO: Absolutely not. Come on. This is his administration. They will do his every bidding. And took what they`ve done already. They took a Muslim ban which is clearly unconstitutional, they went through this entire process of the vetting, dropped two countries, added two countries, went through this whole screening just to gussy it up so the President could get his Muslim ban. So let`s be clear, who are we fooling? The reasonable observer watching this proclamation seeing the history of the statements of the President understands that this is exactly what he promised us. It`s a Muslim ban. 150 million Muslims affected by it. 90 plus, 90 to 99 percent of the individuals affected by the ban are Muslim. So you can throw in Venezuela just for good measure and just to gussy it up and the people of North Korea which there`s also a handful of people, at its core, it`s a Muslim ban and runs afoul of the Constitution.
MELBER: Anthony Romero, Executive Director of the ACLU on a big day for your organization, thanks for being here. I appreciate it.
ROMERO: Thank you. My pleasure, Ari. Of course
MELBER: And that is our broadcast. We came on the air and learned a lot of things including that Trump`s Lawyer Michael Cohen is pleading the Fifth, that Donald Trump will personally help go through Michael Cohen`s evidence and materials for attorney/client privilege and that Rudy Giuliani is still reopening negotiations from a potential Donald Trump-Bob Mueller interview. A lot on THE BEAT live from Washington. I`ll see you back here 6:00 p.m. Eastern. "HARDBALL" with Chris Matthews starts right now.
CHRIS MATTHEWS, MSNBC HOST: Is there a doctor in the house? Let`s play HARDBALL.
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