Show: THE BEAT WITH ARI MELBER Date: May 2, 2018 Guest: Harry Litman; Ted Lieu; Guy Lewis; Jess McIntosh; Sol Wisenberg
ARI MELBER, MSNBC HOST: Yes. I think they call that game face.
Chuck Todd thank you very much. Wishing you a good evening.
I will tell you what is leading our broadcast tonight. Bob Mueller dialing up pressure on Trump with a new subpoena threat. That`s big deal. Meanwhile, Trump reshuffling his criminal defense team. And breaking this hour, one of Trump`s accusers filing new subpoenas in court.
We begin with one of Trump`s top White House lawyers that Chuck and I were just discussing, Ty Cobb out. This news comes, of course, after these reports that Mueller is ready to fight fire with fire. Telling the White House for the first time that if they won`t have Donald Trump, the President, testify voluntarily in this probe, that Bob Mueller will then try to force Donald Trump to testify with a possible some.
Now with Cobb out, Emmett Flood is in. He is a veteran litigator who defended Bill Clinton during his impeachment. He also served in the Bush White House.
So what does this all mean? Well, first of all, Cobb was the good cop in this Mueller probe. He calmed Trump. He turned over documents. He was by all accounts the most cooperative lawyer on the team. Now he is gone, which means the team is less cooperative tonight than it was last night. That`s the first takeaway.
But this also previews where the fight could be going, the Trump White House arming for a potential bruising court fight with Bob Mueller. High stakes. And they are adding people who can argue a president doesn`t have to testify at all. As we point out on this program, Bill Clinton initially took that position. And he ultimately did testified in the Ken Starr probe.
And thirdly, we are seeing here the signs of gearing up for a fight over executive privilege. And insider summed it up with (INAUDIBLE) reference telling "the Washington Post," who do you want on your side if Mueller decides to subpoena the President? You want your wartime consiguere (ph). Emmitt is a quintessential wartime consiguere (ph).
Now Cobb did not litigate or even talk that much from a war-footing. In fact, take a look. Here he was in an interview just this morning, his last interview before this change.
(BEGIN VIDEO CLIP)
TY COBB, WHITE HOUSE LAWYER: It`s certainly not off the table. And people are working hard to make decisions and work toward an interview. And assuming that can be concluded favorably, there will be an interview.
(END VIDEO CLIP)
MELBER: Trump`s loyalists are increasingly arguing the opposite. They are saying there isn`t a way from Donald Trump`s perspective, to meet Mueller in the interview room favorably. It`s too much risk, too little reward. And that`s why this whole fight could be headed right to the Supreme Court.
I`m joined now by California congressman Ted Liu. He serves on the House judicial committee, as well as former federal prosecutor Harry Litman.
Thank you for being here.
I start with you. What does it tell you that Bob Mueller is using the subpoena threat?
HARRY LITMAN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Well, it tells me thing at least reached something of a stalemate. I don`t think it is a permanent stalemate. I think in part the threat of a subpoena is meant to keep the talks or to make the talks revive because the reports we have really are now are a month old and things have sort to come to a stall. But I think they will return.
Yes, he has played that card. I don`t think it is a thunderbolt from heaven. Everyone has always known that`s part of the rules --
MELBER: You can go there.
LITMAN: And he said the words and it is pretty much made it clear. And I think that`s just meant to say let`s get serious here, guys. Do you want to try the work something out or not.
MELBER: Now Trump`s former adviser Steve Bannon is speaking out on this. As you know he is a widely respected legal expert -- no, he is not. But he is a political guy with some input on the White House. This is what he says.
Quote "Cobb was a mistake, totally incompetent, in over his head, obsessed with this radical fantasy of waving executive privilege. It was truly stupid, failed to realize there would never be could never be a special relationship with Mueller."
I would say what Bannon doesn`t know about the law, he makes up for in what he knows about political brawling. And if this is an administration that is not looking to be saved by the facts the way you would sometimes when you have an innocent client and you say I am really confident about putting all the facts out there, they are turning to a brawl, what does that view from Bannon on the brawl say to you. And then to congressman Lieu.
LITMAN: So, I agree. First of all, bringing in flood he is the first guy remotely capable of having the kind of fight that you describe. It`s not just aggressive but the chops to bring a court challenge from the district court to the Supreme Court. His heads and shoulders more capable than anyone who has been in in that regard. So look like they are focused on a possible court battle and they are actually bringing in as you say a consiguere (ph).
REP, TED LIEU (D-CA), JUDICIARY COMMITTEE: On the subpoena issue, Nixon lost, as you know, in the Supreme Court on a similar argument he couldn`t be subpoenaed for the tapes. Bill Clinton ultimately testified. But I want to talk about the politics of this rather than just the legal issues.
Politically, if Donald Trump really wants to sell to the American people that he did nothing wrong then what does he have to hide? Why doesn`t he go and talk and have the interview? If he doesn`t want to do the interview it suggests that he is trying to hide information.
In terms of executive privilege they never waived in. They actually had witnesses invoke it all the time in these various committees by saying they are going to invoke the executive privilege. They never did, but then they wouldn`t answer the questions that the congressional committees asks.
MELBER: So -- and you were, of course, a part of that process as a member of Congress, did you think that they effectively have invoke executive privilege by that man?
LIEU: They would not invoke the executive privilege. As you said, the Republican controlled Congress was not calling them out on it and they were able to answer only the questions that they wanted to answer.
MELBER: So, you view is they used that essentially as a dodge?
LIEU: Absolutely.
MELBER: Yes. When you mentioned U.S. v. Nixon, this goes to a big question. And Harry, are you comfortable getting really boring with me.
LITMAN: Yes, I am.
MELBER: All right. Let`s do it. I`m kidding. This is important.
LITMAN: So we make our voices slower.
MELBER: This is important.
LITMAN: Yes.
MELBER: U.S. v. Nixon, everyone knows in at least the broad strokes Nixon lost because people remember things went to the Supreme Court and he was out. So if you are worried about Presidents breaking the law that seems to stand for something good. But it`s more complex because U.S. v Nixon can either stand for the general notion that Presidents aren`t above the law. OK. Or it can stand for a much narrower legal principle that when Congress creates a different mechanism to hold the President accountable as they did then with the congressionally authorized prosecutor That that can be taken all the way up to the Supreme Court and you can get that evidence, right. Whereas, there is an argument on trump`s side that this is different because it is a different type of prosecutor and they would argue this is essentially a debate within the executive branch and they could argue that they could win even with U.S. v. Nixon. Your view.
LITMAN: First I am a nerd. This is exciting to me. I`m not bored at all.
I agree completely. And there is the other distinction which is the U.S. versus Nixon, Nixon was brought to heel in terms of producing evidence. Clinton v. Jones brought to heel in terms of a civil deposition.
MELBER: Civil deposition.
LITMAN: U.S. v. Trump would be the first time anyone ever says you have got to show up for a criminal trial and testify where you are really on the line and your presidency is on the line. So he will have arguments to make. I think at the end of the day the court will side against him but people who are seeing this as open and shut I think are over reading U.S. v. Nixon and the Clinton case.
MELBER: Which is striking coming from you, I think.
I mean, let me do this. I want to get your views as well, congressman. I also want to add in another special legal expert voice we have here which is former U.S. attorney Guy Lewis who worked with Bob Mueller, James Comey, and Rod Rosenstein at the DOJ. So knows some of the players.
Let me start with your analysis of the conversations we were just having. On one hand U.S. v. Nixon would seem like bad news for a president on the run. On the other hand it is, as Mr. Litman was just explaining, arguably narrower than some of the issues that would be presented in a U.S. v. Trump.
GUY LEWIS, FORMER U.S. ATTORNEY: Harry I think is 100 percent right on this in that there will be a fight. I do not think that these changes, especially in Trump`s attorney today, are indicative of anything but OK let`s gear up, let`s put our helmets on, let`s suit up and we are going to fight this thing.
Look, you look at this president`s past history, litigated history. I mean, he is no stranger to litigation. And how many times do you see him reaching across the aisle saying you know what, let`s find a middle ground? Let`s have some consensus here? It is not going to happen. He is going to fight this every step of the way. And I think this thing is --
MELBER: So, you sir -- Guy, you are sort of making legal news or at least news for nerds because you know a lot of the law here and you know a lot of the people, as I mentioned, including Mueller. You are predicting tonight based on what happened today, that this fight over Donald Trump testifying is going to go all the way to the Supreme Court?
LEWIS: I do. And again, you -- a good point. Look at Mueller`s background. Mueller is a former marine. He is born and raised in the department of justice. He was the chief of the criminal division when I was trying Noriega down here in Miami. And he was aggressive as all get- out. He supported us 100 percent of the time, every step of the way. And it`s like the movies that you watch, the old World War II. When you tell the marine to take the hill, he is going to send in wave after wave after wave. And it`s going to get very aggressive and I think messy.
MELBER: Well, I believe the saying is the army never leaves their wounded and the marines never leave their dead. Bob Mueller is standing, you know, shoulder to shoulder with every prosecutor on this case that he has assembled. It is a quite a team.
Let me turn to the congressman and play a little bit of the chorus, Greek chorus of 2018, if you will, which are Donald Trump`s friends, enablers, and loyalists on the news trying to speak to him directly through the camera and say don`t do this interview.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Would you let Donald Trump talk to this team that Mueller put together? I would never allow it.
UNIDENTIFIED MALE: Absolutely not.
UNIDENTIFIED MALE: I think he would be in a better position challenging this legally than sitting down with the special counsel and answering that list of 40-some-odd questions.
UNIDENTIFIED FEMALE: I would say as I have said to other clients, if you want to go down there, I`m going to go stand in the door and you are going to have to go over my dead body to go down there.
(END VIDEO CLIP)
LIEU: So, I am a recovering lawyer, but it doesn`t take lawyer to know that the central lesson on Watergate is that no one is above the law, not the President. Not anybody else. And there is nothing in the constitution that says the President needs to be treated differently when it comes to routine things like interviews with a prosecutor.
And also keep in mind that deputy attorney general Rod Rosenstein and Robert Mueller are very aware that the President might fire them because all these people ask with them they are fired. And yet they have very strong statements with deputy Rosenstein saying the justice department would not be extorted. Mueller threatening to subpoena. Which tells me they have got really strong evidence. They believe they have got a really strong case. I think that`s why they are acting this way.
MELBER: Guy, do you share that analysis? Because it`s certainly true that Rod Rosenstein who ultimately is Mueller`s boss and the key decision maker on what Mueller does that becomes public outside of the indictments themselves has been as someone who follows this to my mind stronger in public this week than we have ever seen him.
LEWIS: I agree, Ari. I think Rod gives a wit about the threat of being fired. I think Mueller could care less about the threat of being fired. These are two guys that are going to do their job. And they are going to call it like they see it. And they are aggressive prosecutors. They have been aggressive prosecutors. And I think they will continue to be aggressive prosecutors.
MELBER: Guy Lewis, Congressman Ted Lieu, and former federal prosecutor Harry Litman, a very interesting piece of breaking news analysis as well as a little bit of law school. So we thank you for all of it.
LIEU: Thanks. Ari.
MELBER: Coming up, Donald Trump is threatening to get involved and use the powers of the presidency against the justice department itself.
We also want to dig deeper given all the news today about what the Clinton precedent would mean for the Mueller talks. I`m going to speak to the lawyer who questioned Bill Clinton and the lawyer who defended Bill Clinton. We will give you both sides of the law later on tonight.
Also, a new action in court action I was mentioning from one of Trump`s accusers. This is it. They are now tonight using court subpoenaed request to try to get those long lost tapes from "the Apprentice."
All that, plus, my very special guest live tonight, Tony Schwartz, coauthor of "the art of the deal" on what happens when Trump gets corner.
I`m Ari Melber. And you are watching THE BEAT on MSNBC.
(COMMERCIAL BREAK)
MELBER: Breaking news tonight from a lawsuit related to one of Donald Trump`s most high-profile accusers. Now subpoenaing records from "the Apprentice" television show for what she says is necessary evidence to prove what Donald Trump has defamed her. Summer Zervos, the former Apprentice contestant, had accused Trump of sexual misconduct in the run up to the 2016 election. This was after the release of those infamous Access Hollywood tapes.
Now Trump did several things. He called her a liar. He said during the campaign, he would sue her and other women. He never did. It was Zervos who did sue alleging that Donald Trump has defamed her in part by calling her a liar in public.
Now here is the latest news. Today, her lawyer is requesting these subpoenas for archival apprentice footage, all documents video or audio that featured Ms. Zervos or Mr. Trump talking about Ms. Zervos. The subpoena also seeks, note this, any recording in which Trump speaks at women quote "in any sexual or inappropriate manner.
Full disclosure, "the Apprentice" aired on NBC. This subpoena is against a separate company, Metro Gold (ph). And Access Hollywood which is not called Access is an NBC Universal program.
Joining me now Jess McIntosh, a former Clinton campaign aide and Vox`s Liz Plank who has been a part of our coverage of this set of stories since the beginning.
And Liz, I go to you. What do you think of the significance that it was Donald Trump who claimed he would initiate these lawsuits, didn`t, and now is suffering the brunt of one of them against him? And what these tapes could have on him?
LIZ PLANK, EXECUTIVE PRODUCER, VOX MEDIA: Right. I mean, I said this before but I think that silencing women is the worst mistake Donald Trump ever made, right. So, there were 19 women who accused him of various sorts of sexual misconduct. And maybe 19 of them are lying, but even if they are lying it`s what Donald Trump did in reaction to that that he is now possibly going to be paying for, right.
So this thing that was totally acceptable as that men used to do all the time, you know, in a sort of pre-Me Too era which was call women who accused them of different thing liars no longer sort of works. And if I may quote Drake because I am on your show, Ari. Am I -- do I have your permission?
MELBER: Please.
PLANK: OK. Bury me now and I only get bigger. Every time he tries to bury --
MELBER: I`m speechless.
PLANK: Every time you try to bury one of these stories, whether it is Stormy Daniels, whether it is Karen McDougal or Summer Zervos, he has only made these women more powerful and made this story go less and less away.
MELBER: Jess?
JESS MCINTOSH, EXECUTIVE EDITOR, SHAREBLUE: Yes. I mean, I completely agree. I would take a minute to contextualize the entire Me Too movement which I believe fully happened as the backlash through the election of Donald Trump. Nineteen women came out and said this man sexually assaulted, harassed me. We had the Access Hollywood tapes of him admitting to such behaviors and he faced zero repercussions.
He stood on the stump and declared they were too ugly to be sexually assaulted. He declared that he was going to sue them for defamation. He did everything he could to intimidate silence and to defame these women and then he became our President.
And the Me Too moment that we are looking at is a direct response to the anger and the outrage that women across the country felt at watching that man get away with it. And the best thing about what is happening now is that it appears he may not in fact get away with it. That in fact the moment that he has spawned by doing the thing he did and then trying to get out at the way he did means that these new -- there are new thing that come out on the tapes once they get subpoenaed. If we hear new things, if we have more allegations, if we re-air some of the things that were aired during the campaign, it is going to happen in a very different universe than what is playing out in 2016.
MELBER: I think you are speaking to a very important point which is there is a sort of Jurassic Park locked in amber aspect to a lot of the political conventional wisdom analysis that says if Donald Trump got away with something through at least the electoral college vote once in 2016 then everything flies.
But you just walked us through all the evidence to the contrary to that. And so that goes to, I`m reading again from the reporting of this, from the subpoena that is breaking news tonight that it seeks any recording in which Mr. Trump quote "speaks of women in any sexual inappropriate manner at a time as you say in our national dialogues and society where some of those things are shifting and there may be more accountability.
With that in mind, given that they are also seeking the Access information, we are going to play in a 2018 lens what that famous tape said. Take a listen.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I`m going to use tic tacs just in case I start kissing her. I`m automatically attracted to beautiful -- I just start kissing them. It is like a magnet. Just kiss. I don`t know. And when your star they let you do it. You can do anything.
UNIDENTIFIED MALE: Whatever you want.
TRUMP: Grab them by the (bleep). Do anything.
(END VIDEO CLIP)
MELBER: Liz, you said earlier, well, maybe all 19 women were lying and cases do resolve things. The whole point is to keep an open mind within each case. But Donald Trump`s main defense to all of this has not been to say across all the board, well these things happened so be it. It has been to maintain a denial and a fake news counter-attack against anyone and any person, in many cases any woman who brings these allegations forward.
PLANK: Right. He also claim that the tape isn`t real. Right? Which I don`t even -- I mean -- it`s like Olympic, you know, the Olympics of making up stuff. So obviously that tape exists. We just listened to it. And obviously what he said on that tape, many women confirmed actually happened to them.
And you know, coming back to the news that we have today, the fact that the subpoena is going to be you know sort of encompassing not just what he may have said about Summer Zervos but about other women, I am -- I mean, I am excited to hear and will not be surprised if he has said other thing about other women and then what kind of repercussion also come on that.
MCINTOSH: A quick note on repercussions.
MELBER: Yes.
MCINTOSH: Summer Zervos` lawyer is Gloria Allred who of course has just won the only conviction currently. So whenever you hear somebody saying that Me Too has gone too far, I would like to remind people that there has been a single conviction of this kind of behavior. But that conviction is one against Bill Cosby by the same lawyer who Summer Zervos` has and current employee. So if I were Donald Trump I would be very, very scared.
MELBER: Right. And Summer has a legal team with multiple lawyers as you mentioned. Gloria started this off with her in 2016. And it was also, if we are going to get into the weeds, it was counter-suits of defamation against Mr. Cosby that initially led to the disclosure around the Quaaludes (ph) that then led to the criminal case. So you are both making -- go ahead.
MCINTOSH: In the same way that the Cosby allegations were out there. People knew them. In the same way that before the Me Too moment we were talking about this stuff. We knew it. We just simply as a society didn`t care to treat these women like their stories mattered. We are in a different place now in 2018 than we were in 2016 when it first came in.
MELBER: Right. And to end on the same song we began with from Liz, wait for the kicker. Maybe we will keep waiting for the kicker.
Thank you both, Jess McIntosh and Liz Plank.
Coming up, Donald Trump is threatening the justice department directly with new calls for Rod Rosenstein to step aside. What`s the GOP doing about it? Former Senator Russ Feingold joins me.
Also, will all of this lead to a Mueller face to face? I am going to speak to two lawyers who have been on both sides of a President under oath. Stakes don`t get higher.
And what does Donald Trump do when he is cornered? And is the way he fights dirty spreading across our nation? We are going to look at that with the coauthor of the "Art of the Deal" Tony Schwartz. He joins THE BEAT live tonight exclusively, next.
(COMMERCIAL BREAK)
MELBER: Now we turn to something special on THE BEAT tonight.
Two insiders who led the very fights that are in the news tonight. A prosecutor under Ken Starr who questioned President Clinton under oath. And one of Clinton`s most prominent lawyers who was there throughout these legal fights including that testimony. Now, this fight played out over six months in 1998. Independent counsel Ken Starr and his team were trying to get Clinton to testify before a grand jury. There was a big fight. There was a subpoena delivered in July and Clinton ultimately giving in 12 days later.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: The President has been subpoenaed by the independent counsel.
UNIDENTIFIED MALE: His lawyers back in Washington were preparing to negotiate with independent counsel Kenneth Starr for his testimony.
UNIDENTIFIED MALE: He is said to be insisting on the right to question the President in person.
UNIDENTIFIED MALE: The President will testify about his relationship with a former intern under oath and on tape for the grand jury.
(END VIDEO CLIP)
MELBER: So first, we turn to Sol Wisenberg who as we mentioned questioned President Clinton as deputy independent counsel under Ken Starr.
Thank you for coming on THE BEAT about this.
SOL WISENBERG, FORMER DEPUTY INDEPENDENT COUNSEL UNDER KEN STARR: Thanks for having me.
MELBER: Did you know in the lead up to that that President Clinton would ultimately testify voluntarily after getting the subpoena? Or was that a genuine question in your office as it may be in Mueller`s tonight where you thought you might have to litigate that out.
WISENBERG: No, we didn`t. Once we decided to issue the subpoena we didn`t really have any doubt that he was going to testify in some format. And we had the authority of U.S. versus Nixon we felt behind us. We also thought politically he wouldn`t be able to do it.
But there is an important thing about U.S. versus Nixon that should not be forgotten, particularly in the case of President Trump. In U.S. versus Nixon, the Supreme Court thought it was very important that Leon Jaworski (ph), the special counsel, had these specific authorization to contest executive privilege. That was in the federal regulation that controlled him. Bob Mueller does not have that authorization. So there is a real potential legal argument the Trump people can make saying this isn`t even a justiciable issue because Mueller does not have the right -- it is inter- branch dispute. Mueller does not have the right to question my implication --.
MELBER: Sir, you said justiciable and then you said intra-branch. So you know, you`re getting me excited. This is something we were discussing at the very top of our show tonight and you are putting your finger on it, which is does U.S. v Nixon stand for the proposition that no president is above the law which would be good for Mueller forcing him or does it stand for something narrower which requires Congress to give that power in which case they could go all the way to the Supreme Court and Trump would win this thing. Do you -- do you have a view on the answer?
WISENBERG: Well, I think there is no question. It stands for the proposition that nobody is above the law and that the courts say what the law is. My point -- my point is a narrower one that as a procedural matter, President Trump`s team could come in and say, I`m sorry we`re invoking the executive. Bob Mueller doesn`t have the authority under the regulation to contest that. Now, I don`t think -- if Trump does it, I don`t think Mueller is going to fold his tent up and go away. He could argue I have that authority inherently. But nevertheless, it`s a legitimate point he could make.
MELBER: Right, and so let me play --
WISENBERG: In the case of President -- in the case of president -- I`m sorry.
MELBER: Go ahead.
WISENBERG: In the case of President Clinton, Ken Starr was the independent counsel. There was no question that he had the authority to litigate the matter if the President would have -- would have challenged it. Now, of course, no court had ever held you can subpoena the president for his grand jury testimony but I think it`s certainly implicit in both the U.S. versus Nixon and in the Paula Jones case.
MELBER: Right. And that`s why we are literally back where we were in the Starr matter although as you said with some different authorizing power but we are back to the fundamental questions of our constitution and what branch wins. I want to play now your very historic cross-examination of Bill Clinton there in that video deposition. Take a look.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Would you please tell the grand jury what that oath means to you for today`s testimony?
BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: I have sworn an oath to tell the grand jury the truth and that`s what I intend to do.
UNIDENTIFIED MALE: Mr. President, were you physically intimate with Monica Lewinsky?
CLINTON: When I was alone with Miss Lewinsky on certain occasions I engaged in conduct that was wrong.
(END VIDEO CLIP)
MELBER: Parts of that -- are you and parts of that or your colleagues, of course there`s a whole team that questions the President, but viewers can see there that that was a President who was a careful lawyer a former State Attorney General, reading from the piece of paper which was how he wanted to define what he did. Contrast that to the potential witness you would have in Donald Trump. And do you think based on what you know, that Donald Trump would pose more risk to himself perhaps than Bill Clinton did in that?
WISENBERG: I think it`s not so much that Trump will pose a risk to himself because he can`t be prepped. I think he`s done a lot of depositions and he`s very smart. The problem is, the Clinton team pretty much knew what we had when he came in for his testimony. There`s a lot of stuff that Bob Mueller has and knows about that President Trump has no idea of knowing. And so that`s what`s so dangerous. But you bring up another interesting point or the clip brought it up and this could be a president that Trump might want to cite. Recall President Clinton did not answer all the questions that we had.
MELBER: Right.
WISENBERG: We -- he didn`t plead the Fifth Amendment but he said some of these are too private and I`m not going to answer it. We felt that we had enough and we didn`t challenge him further but it`s certainly a precedent that President Trump can cite.
MELBER: Interesting. Sol Wisenberg, one of the few people alive who has questioned a president in a grand jury proceeding. Thank you for coming on THE BEAT.
WISENBERG: My pleasure.
MELBER: Now I turn to Bob Bennett. He`s a high-profile attorney who was on the other side of all that as President Clinton`s personal lawyer in the Paula Jones case. my thank to you as well. Based on everything you just heard, what do you think of your former long-distance adversary`s points there?
BOB BENNETT, FORMER PERSONAL LAWYER FOR BILL CLINTON: Well, I don`t disagree with him. I largely agree with him. What you have to remember is that Bill Clinton was very unusually capable witness. I don`t think Mr. Trump is and I think a critical point that he made was that we knew everything, really everything that might be asked and had prepared answers at the various stages. I don`t think that`s the case with Mr. Trump so I think he would be --
MELBER: What do you think -- let me ask you this. What do you think about something that a lot of Trump defenders say and that he has tweeted about, for what it`s worth, which is the argument that if there is no high-level collusion provable at least on the part of the President and the whole thing turns to obstruction that that can by way of analogy look a little bit like what some of the Clinton folks said about Bill Clinton which was he ultimately admitted to things that many people thought were wrong and objectionable but there wasn`t necessarily an underlying felony and to the extent the argument was about obstruction that wasn`t enough. What do you say to that?
BENNETT: Well, I don`t -- that doesn`t make any sense. Obstruction is a very serious offense and I think the big risk to President Trump is many of the underlying offenses might be very difficult to prove. But if he`s under oath and he gives a false statement, then he can be in serious, serious trouble. I think it`s much riskier for Donald Trump to testify than it was for President Clinton.
MELBER: We went digging through the archives and we found Donald Trump talking about the whole Jones case you worked on because he was, you know, always talking. Take a listen to this.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I think his lawyers and in particular the lawyer -- I won`t even mention names, but representing him with respect to Paula Jones, I thought did a terrible job. I`m not even sure they shouldn`t have just gone and taken the Fifth Amendment and said, look, I don`t get along with this man Starr, he`s after me. He`s a Republican, he`s this, he`s that, and you know, just taken the Fifth Amendment. It`s a terrible thing for a President to take the Fifth Amendment but he probably should have done it.
(END VIDEO CLIP)
BENNETT: Well, I mean --
MELBER: What do you think of that.
BENNETT: I think it`s absurd and what you have to understand is you have to have a strategy and a goal. And our goal, along with -- I was working closely with White House counsel, Lloyd Cutler, a great, great legendary lawyer, was to win the 1996 re-election and keep the President in office so he could fulfill his term. And by every analysis, we concluded that if the President refused to testify, that would be very harmful and would put at risk our strategy. And what happened? Sure, there were some scars. No question about it. But the President was reelected, the President served his term, and if he ran again today, he would be reelected.
MELBER: Well, there you have it. Spoken like a zealous advocate but you raise a point that`s very relevant, which is that if Donald Trump does ultimately start a court fight or another battle to avoid testifying which would be different than Clinton. Even people who love Trump would say if he can talk everywhere and tweet all the time why can`t he talk to Bob Mueller. What is he hiding and what are the cause to that? Bob Bennett, thank you for being part of our special coverage. Still ahead, how Donald Trump`s new attack on Mueller could be putting the Russia probe on this collision course with Congress. But before we even do that, I`m happy to tell you the co-author of the art of the deal speaking out on what he calls Donald Trump`s deceit and cruelty. Tony Schwartz is with me live when we`re back and live in 90 seconds.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
MICHELLE OBAMA, FORMER FIRST LADY: When someone is cruel or acts like a bully you don`t stoop to their level. No, our motto is when they go low, we go high.
(END VIDEO CLIP)
MELBER: Michele Obama famously called for the high road. It was appealing as an ethical argument but it was also associated with the Obama family`s unquestioned political success. Now, politics clearly rewarding a different approach. Donald Trump won the electoral college with lower road than a lot of people thought possible. In Trump`s art of the deal, he states when people treat me badly, my general attitude has been to fight back very hard. And we`re about to explore that very point with Co-Author of that book, our friend Tony Schwartz. He issued today is that Trump`s dirty approach is being rewarded and even mimicked. Now, Schwartz argues this is actually testing our values as a nation as we -- as we reckon with a barrage of cruelty.
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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Now the poor guy, you ought to see this guy. Oh, I don`t know what I said. I don`t remember.
UNIDENTIFIED FEMALE: On Carly Fiorina telling Rolling Stone look at that face, would anyone vote for that? Can you imagine that, the face of our next president?
TRUMP: Maxine Waters a very low I.Q. individual.
Although we have a Representative in Congress who they say was here a long time ago, they call her Pocahontas.
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MELBER: When Trump is pressed on these comments, he`ll often default to claiming these are jokes. Many people don`t consider them funny. And they point out that even if it is a joke, he has power, and this is very cruel. The larger question we want to explore tonight right now is whether this style is eroding civility across the board. There was only of course politics in the reaction to this White House Correspondents` Dinner moment.
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MICHELLE WOLF, COMEDIAN: I actually really like Sarah. I think she`s very resourceful like she burns facts, and then she uses that ash to create a perfect smokey eye. We are graced with Sarah`s presence tonight. I have to say I`m a little star struck. I love you as Aunt Lydia in the Handmaid`s Tale.
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MELBER: I`m joined by Tony Schwartz, CEO of the Energy Project. He`s also the bestselling of the author of The Way We Work is Not Working. And I want to explore with you not the predictable partisan overdrive reaction that was very blue/red, et cetera to the comments, but the deeper point you are reaching towards, which is when cruelty is rewarded, what do we as a society do about it?
TONY SCHWARTZ: Well, you know, I think what we`ve lost over the last two years in this Trump era is the recognition that our values are fundamentally -- they are embodied values, our lived values are the content of our character. They are who we are. And two of the values we hold most dear I think or the most universal are honesty and compassion. And those two are -- neither is represented in Trump and I think that the problem is that he`s dragged the dialogue and the focus on those two core values to a level that drags all of us with him. And that`s my concern.
MELBER: And so, as you know Tony, because you`ve worked more closely with him in an expressive capacity writing the book than most people have, what he does, though, if I may is he bastardizes the concept of honesty and says that he is actually just being more honest than others by saying, "the cruel things that other people really feel." And for that point, I want to play for you one of his first (INAUDIBLE) into politics in New York City, where you are, with Ed Koch, where he went further than most people would about the Mayor in New York`s tough enough rhetorical town. And then he said, but these are just my feelings. Like, I`m just being honest. Take a look.
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ED KOCH, FORMER UNITED STATES REPRESENTATIVE: In the letter, I told Mr. Trump that I would not be granting him the tax exemptions that he desired. That letter aroused Mr. Trump`s ire.
TRUMP: We have a gentleman in New York who`s very disloyal every time --
UNIDENTIFIED FEMALE: You are talking about the Mayor of New York, aren`t you?
TRUMP: I am talking about the Mayor of New York, yes.
UNIDENTIFIED FEMALE: You called the Mayor a moron. Is that any way to talk about a Mayor, about another person?
TRUMP: It`s only expressing your feelings and that`s the way I feel.
(END VIDEO CLIP)
MELBER: That`s the way I feel. How do you counter that sort of P.C. defense of what you call cruelty?
SCHWARTZ: Well, what binds us together as a civilized society, that`s what gives -- what civility serves is the willingness, the capacity to be both truthful and compassionate and a number of other values. And without them, we lose our safety, our sense of safety, our sense of security, our sense of trust in one another. And civilization doesn`t hold together any more easily or naturally than democracy does. So when you begin to debase the most core values that every contemplate of tradition has valued, we are in -- we are at a point where we sit faced with chaos and certainly at a minimum with a sense of fear and anxiety about what is going to happen next.
MELBER: And let me show, for context on this, because we were looking at it, most people in the country -- and this goes beyond party -- think that the civility has gotten much worse since Trump took office. Very few people, in a world where people`s facts are disagreeing about all kinds of political things, very few people think it`s the same or improved. 70 percent, that includes obviously by definition many Trump voters think it`s worse. If we know it`s getting worse, why does it also feel like we are to some degree powerless to change it? I mean, you go out of line and you look at even the way people criticized Trump and sometimes you say gosh, we`re all just in this trolling loop.
SCHWARTZ: Because the end justifies the means in a highly polarized world, in a highly polarized society. And so everything gets rationalized and minimized because the assumption is that so long as we`re getting at the end of the day what we want, we can do almost anything. And what we don`t realize is how much toll that takes on our humanity. You know every day I go and talk with leaders and one of the things I talk about is this notion, this core notion of the value as a leader of being both truthful and compassionate. Neither one, Ari, is sufficient by itself. Honesty -- think about this. Honesty, truthfulness, without compassion, is actually cruelty. So you need these entailed values in order to be a whole human being. Donald Trump exemplifies neither honesty nor compassion and the result there is chaos. And it`s not just chaos in the way he leads, it`s chaos in terms of the impact he has on us.
MELBER: Right, and what you`re speaking about is that the nuance or the thing that you`re supposed to get if you develop as a human being, which is yes, you speak from a place of hopefully truth but with consideration for the impact on other people. Sometimes that truth has to be channeled through your obligations to others. Tony, whenever I have you on, I feel like we should just add a little glass of Malbec and bring out, you know, some other -- some other appetizers and really have this dinner conversation for longer but we have to fit in a break.
SCHWARTZ: I`m sorry I`m not there in the -- in the promised land with you so I`m used to being right next to you.
MELBER: I like that too. Tony Schwartz, friend of THE BEAT, thank you as always for making us think a little deeper. Up ahead, Donald Trump`s attacks on Mueller creating a big test for Congress. Former Senator Russ Feingold, my special guest.
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MELBER: Not our lead story but an important one. Your President is threatening your Justice Department. Here is the tweet. At some point, I`ll have no choice but to use the powers granted to the Presidency and get involved. Trump tweeting in support of Republican allies in Congress who have been taking the lead in basically what critics say is a pretextual an attack on Mueller`s boss, Rod Rosenstein. So where is Republican leadership? A Senate panel had just approved a bill to protect Mueller`s investigation but Mitch McConnell and Paul Ryan are now against it. Joining me is former Democratic Senator from Wisconsin Russ Feingold. You know Paul Ryan, he is leaving Congress. Wouldn`t this be the time to step up?
RUSS FEINGOLD, FORMER UNITED STATES SENATOR: It`s time for everybody to step up. You know, when Trump was elected, you know, the expression Watergate was sort of a drip, drip, drip of the allegation. It was already alike to moderate rain. And in the last 18 months, it`s basically become and incredible downpour. We are at a situation now where the pace is quickening and where this is going to come to a conclusion and it`s time for everyone to think about what their duty is, to take a deep breath and for those in office including those you mentioned to review the oath of office, to uphold the constitution, to defend this country against enemies foreign and domestic. And when the President of the United States says he`s going to wage war on the Justice Department of the United States, that`s an attack on our Constitution. So everybody who`s taken that oath has an obligation to put aside party. I`ve seen Republicans do this on a number of occasions. I remember when I was in college, watching Elliot Richardson, a lifetime Republican standing up to Nixon. Barry Goldwater, the former standard bearer for the Republican Party saying enough is enough. Comey himself and John Ashcroft standing up to George Bush in a hospital room when they wanted to extend the warrantless wiretapping. These moments living up to their oath have happened before and they need to happen now if we`re going to stand up to this horrific attack on our country.
MELBER: When Donald Trump puts this out, do you think that he is testing the waters or just being emotional?
FEINGOLD: I think he doesn`t care about the institutions of this country. I think he is willing to destroy their legitimacy because it`s all about him. Again, a Watergate expression, Ari, was that there was a cancer on the White House. In this case, I would say the bubonic plague is loose in the White House. That`s where we`re at. And this man simply doesn`t care. And it`s up to the people in this country and the Congress in particular to do their duty, to do what they have to do to stop this attack on our institutions.
MELBER: A former U.S. Senator Russ Feingold, we wanted your insights on this. I appreciate you coming on THE BEAT and we will be right back.
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MIKE PENCE, VICE PRESIDENT, UNITED STATES: I just found out when I was walking through the door that we were also going to be joined today by another favorite. A great friend of this president, a tireless champion of strong borders and the rule of law, he spent a lifetime in law enforcement, Sheriff Joe Arpaio. I`m honored to have you here.
(END VIDEO CLIP)
MELBER: A new statement from Vice President Mike Pence in Phoenix last night hailing Sheriff Joe Arpaio for being a "champion of the rule of law." We can actually tell you Arpaio was found to have basically broken the law and he admitted guilt by accepting that pardon. He also peddled a birther conspiracy against Barack Obama a and would have been basically headed for jail except for the Trump pardon. That was, of course, Donald Trump`s first pardon. We wanted to get that note in there.
Our show is over. HARDBALL starts now.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END
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