Show: THE BEAT WITH ARI MELBER Date: June 6, 2018 Guest: Megan Twohey; Danny Greenberg
ARI MELBER, MSNBC HOST: Good evening, Chuck. Thank you very much.
The legal walls are closing in on Donald Trump tonight and not just from the Mueller probe. Tonight, I can report for you on never before seen messages from Michael Cohen because they just leaked in a brand new lawsuit filed by Michael Avenatti in Los Angeles.
This alleges that Cohen secretly plotted with Avenatti`s own predecessor, that`s Stormy Daniels` first lawyer, to work against her and help Trump lie about their relationship. Now, that`s one new case. Then there`s another development in a case from another woman former Apprentice contestant Summer Cervos with a judge now setting a schedule that could force Donald Trump to be deposed there.
All this as Bob Mueller pursues Paul Manafort for allege witness tampering and press the White House for a Trump interview of his own.
Now, this new lawsuit tonight comes from Michael Avenatti, the President`s tormentor in-chief, if you will. And it`s not just an allegation that Michael Cohen got Stormy Daniels`s lawyer who illicitly coordinate with him for Trump, which we will get into. There`s also new material here. New leaked evidence that shows Cohen and Daniels lawyer, at the time, Keith Davidson worked together. This is while, allegedly, while he was Stormy Daniel`s lawyer.
(BEGIN VIDEO CLIP)
MICHAEL AVENATTI, STORMY DANIELS` LAWYER: Keith Davidson instead of representing Stormy Daniels was more interested in colluding with his quote "pal." Keith Davidson was supposed to be representing Stormy Daniels at all times. Not supposed to be interested in helping out Michael Cohen and Donald Trump.
(END VIDEO CLIP)
MELBER: Now the main charge here is pretty simple. This man, Davidson, was a double agent for Donald Trump. The text show him and Cohen talking in January of this year and saying that would make Davidson a quote "puppet for Trump." That`s how Avenatti sees it. And they basically describe something very interesting. The idea that these two lawyer who were supposedly against each other actually worked together to do Trump`s bidding arranging a Sean Hannity appearance that Stormy would have use to deny any relationship with Trump. And yes, that`s the same Sean Hannity who is a client of guess who, Michael Cohen.
The lawsuit also alleges Cohen did this with Trump`s knowledge, arguing that Trump is one of the men who referenced by Cohen in a newly leaked text from Stormy`s lawyer, that says quote "the wise men all believe the story is dying and thus they should shut down any interviews."
Now Davidson is denying all this. We just got a new statement from him and he says this outrageously frivolous lawsuit and other desperate attempt by Avenatti to continue a quote "publicity tour."
Now that whole debate, it will continue to play out in court. But the evidence, the evidence is playing out tonight in public. And some of Michael Cohen`s own words are striking. The text show that he says he was quote "with flotus," the first lady of Mar-a-Lago on March 2nd which is a very interesting thing. Avenatti says that trip was specifically for Cohen to meet with Melania Trump to prepare her for news of this very lawsuit.
Now here is why all of this matters. These texts that are brand new that we are reading for the first time which clearly the party has never wanted to see the light of day, these are Michael Cohen`s own words. They suggest a plan to lie about Daniels that maybe went all the way to the top. An allegation that Trump and the first lady were in the loop on all of this.
Now I like to be fair, as you know if you watch this show. If you take all this as true, which is an if, and if this is the one and only time it happened, then the Trump folks could argue it`s not that big a deal legally and the Daniels" civil case limited impact in the "60 Minutes" interview already aired.
But if this forms a pattern, if what we are seeing here in these secret newly leaked texts is a pattern of how Michael Cohen fix thing and how he kept Trump in the loop then what will his other texts and files show about any other problems he was quote fixing.
Now I can`t give you the answer to that tonight. I don`t know that but I do know tonight that federal investigators are pouring over nearly all those files because Cohen lost his bid to protect most of them and what they find in the southern district of New York, well, it won`t stay in the southern district of New York.
With me, I`m joined by Jacob Weisberg, editor-in-chief of Slate.com. He talked to Stormy Daniels during the 2016 election and was at this story from the start, criminal defense attorney Brian Wice, a friend of THE BEAT and Matt Miller, a former chief spokesman for the justice department.
I begin with you sir. We are long ways from when you initially did not run this story because you couldn`t nail it down. What do you is important in the new suit?
JACOB WEISBERG, EDITOR-IN-CHIEF, SLATE.COM: Well, a lot changed, Ari, when Stormy Daniels went from having one of the worst lawyers in America, Keith Davidson, to I think one of the best, certainly one of the most aggressive, Michael Avenatti. Is he been on the show yet tonight or he is taking the evening off?
MELBER: Well, we are four minutes in. He is not been here yet.
WEISBERG: He has got until 7:00. But you know, I think his beef -- a beef he had from the beginning is that Keith Davidson was not representing his client, Stormy Daniels, when he was representing her. And you know, it`s interesting. Davidson`s business, that`s a lawyer with a very sleazy business. It essentially shaking down celebrities, a lot of B-list celebrities which is why he was on a --.
MELBER: You are being generous with B, right.
WEISBERG: Well, I was trying to get Trump in there in the celebrity apprentice era. But you know, he would sure find something on them and extract these payments.
WEISBERG: But ultimately, it was the celebrities who were kind of the customers, right. And it`s very interesting. I think what he did with Michael Cohen was probably somewhat characteristic of his legal practice which was he wasn`t so interested in the person who has claim he was representing because there was more business to be done with the celebrity, i.e., Donald Trump overtime. That`s exactly what happened with Michael Cohen. He realized that if he could represent multiple people with claims against Donald Trump and there were multiple people and he did represent them, that it was a nice little continuing source of business. But he wasn`t representing his clients in a way a lawyer like you would ordinarily do. He was running this sort of little bit of extortion concession.
MELBER: And we are going to get more into that because we have some very interesting reporting on that in a few moments.
But on that point, Brian, if you are representing someone, Brian, as a lawyer and you suddenly see there might be a better opportunity business or otherwise on the other side of the case, are you allowed to then just start actively representing the other side of the case?
BRIAN WICE, CRIMINAL DEFENSE LAWYER: Absolutely not. Full stop. The first thing that we learn the first day in law school, what he need to tattoo on our foreheads as lawyers is that your sense of loyalty to your client is paramount. Period.
MELBER: Well, Brian if that`s how you feel, why don`t you have a face tattoo?
WICE: Well because it`s an orthodox Jew, that wouldn`t be cool. Look. At tend of the day, the problem is that Keith Davidson is another one of these Michael Carlione (ph) want to bes who at least in terms of the allegations in this lawsuit when it comes a sense of loyalty to his client is a lot more like (INAUDIBLE). This is guy, who if in fact these allegations are true, Michael Avenatti needs to take him fishing on Lake Tahoe. Because this business doesn`t have any use for a knuckle head like that. And it is clear that Keith Davidson really ought to be working at David and busters at any of these allegations (INAUDIBLE), Ari.
MELBER: Matt Miller never go against the family.
MATT MILLER, FORMER DEPARTMENT OF JUSTICE CHIEF SPOKESMAN: Yes. That`s exactly right.
Look. I think if you look at these lawsuits it`s clear that Keith Davidson has a lot of issues. It`s obvious that he wasn`t representing really his client anymore but a party adverse to his client.
MELBER: You think the texts already show enough to --?
MILLER: Yes. I think so. I suspect he is going to bar problems in California, bar disciplinary problems. And more than that, it`s hard to see who would choose Keith Davidson to represent him going forward, if you look at how this represented this client.
In terms of the bigger picture, I`m not sure this is going to get us closer to answering the big underline question here which is did the President violate campaign finance law because I suspect what will happen is the same thing that happened in a previous civil suit that Stormy Daniels file and that it will be delayed probably at Michael Cohen`s request or Keith Davidson`s request because Michael Cohen is taking the fifth because of his separate ongoing criminal problems in the southern district of New York.
So you now, there are a lot of interesting questions. It`s clear that Michael Avenatti wants to get Michael Cohen, you know, in a room to be able to take his deposition. I suspect we are not close today to that moment happening than we were yesterday.
MELBER: And Brian, this is not the normal course of events. In other words, if people are watching and going, it seems like Michael Avenatti is out with a new thing, a new punch, a new leak and a new suit. That`s not how it usually goes down. Clearly, there`s stuff here including the texts that they got a hold of that gives them a claim. They are doing a non- frivolous claim to go after these people in a new way. And this is not isolated.
In other words, what everyone thinks of Cohen, Davidson and Avenatti, this entire pact pattern also was raised in the Karen McDougal suit. She prevailed there. She got the "National Enquirer" parent company to back off. It was the same set of allegations. We did speak to her lawyer about this and it`s really pretty fascinating given what is now kind of barreling in Michael Cohen tonight. So take a look this moment.
(BEGIN VIDEO CLIP)
MELBER: Why was Michael Cohen involved?
UNIDENTIFIED MALE: I mean it`s the $64 million question.
MELBER: You don`t know.
UNIDENTIFIED MALE: We don`t know.
MELBER: You think it`s nefarious?
UNIDENTIFIED MALE: Of course it`s nefarious.
(END VIDEO CLIP)
MELBER: Brian, in your view, what is the link here? And if it is nefarious and there`s a pattern of Davidson doing this and it goes to the top and Cohen and Trump know about it, what other problems does that create?
WICE: Well, you talk about problems. I know that you are a huge Jay-Z fan. This is a man with more than 99 problems. This a man going well into the triple digits.
Why? Because the C-word at issue is not collusion. I have never liked that word and never will. It is conspiracy. It is an agreement to engage on unlawful conduct by lawful means or lawful conduct by unlawful means. And look, if this goes merely beyond Keith Davidson and Michael Cohen`s relationship as it relates to Stormy Daniels, even if it goes beyond Karen McDougal, then not only is Keith Davidson going to have trouble with the California bar, as long as Michael Cohen is a target rich environment for Michael Avenatti, his life as he knows it is only going to continue to get worse on multiple levels.
MELBER: I appreciate the 99 problems reference. I don`t know why you didn`t continue it and say are you a lawyer or somebody important or something, but we will get --.
WICE: No, that`s the problem. No, the problem I think frankly is that Michael Avenatti wants to make sure in the words of Jay-Z that Michael Cohen`s casket is closed. And I think he is well on his way to doing that.
MELBER: Legal casket. I assume you`re speaking legally not literally.
WICE: Legally, of course.
MELBER: Well, there`s a lot of metaphors in rap and law.
WICE: You have said it. Absolutely.
MELBER: Brian Wice, thanks for playing as we always say. Jacob Weisberg and Matt Miller, I want you to -- Brian, stay with me, I should say. The other folks I want to release you.
Because I want to get to this other point here and this is super important. Keith Davidson is someone you may not have heard of. He basically had this job that Michael Avenatti had. We were just talking about whether or not he is really good at his job. Well, he initially represented Stormy Daniels. The difference is Avenatti has become, as you may know if you are watching, kind of a one man resistance operation.
Davidson now denied he is facing these allegations in court that he was doing something were different, selling Stormy Daniels out for the Trump team. So Keith Davison who is not a household name but there are some important pieces of context here. He was involved, as we were discussing, in this Karen McDougal suit. Now, she was a former playboy playmate who had alleged an affair from Trump. And she, separate from all of this, fired Davidson for, guess what, for allegedly working with Michael Cohen against her. Now, we reported on Davidson`s past cases before including the Hulk Hogan case.
(BEGIN VIDEO CLIP)
MELBER: Allegations that Mr. Cohen basically worked with this other lawyer you are referring to Mr. Davidson, your predecessor, in a manner that might have been adverse to his client interest in order to help Donald Trump. You are nor saying you believe there is smoking gun tape evidence of that?
(END VIDEO CLIP)
MELBER: That was, we now know, a preview of what`s happening. Now Hogan testified in a trial in 2016 which he won and led to the demise of a Web site called Gawker. There was an issue about a sex tape. And the big thing here that is important is there was a personality and bubba the love sponge and there`s a question about these tapes and what happened to them.
(BEGIN VIDEO CLIP)
HULK HOGAN, ACTOR: When the video was released, my whole world changed. Put my world upside down. It has been this overriding haunting of this sex tape that Gawker put out there. Through this crazy sex tape being released by gawker, you know, that I didn`t know about. I haven`t been able to get back up and be who I was before.
(END VIDEO CLIP)
MELBER: Now Davidson then became the subject of two different investigations for releasing that tape that Hogan was just talking about. A federal one and a local one that was accusations of extortion. Now attorneys ultimately decline to prosecute or file charges but there were reports that that was because he was cooperating and right now there`s reports he is also cooperating with the feds.
So a lot to get to. For this context, I want to bring in "New York Times" investigative reporter Megan Twohey to conversation. Brian Wice stayed as I mentioned.
Anyone watching would at least start with the feeling of wow, a lot of shade balls around this story. What to you jumps out as important with this new development of the case against Davidson? We just showed some of why he is in so much hot water traditionally.
MEGAN TWOHEY, INVESTIGATIVE REPORTER, THE NEW YORK TIMES: Well, it is interesting. I mean, Davidson is certainly somebody who warrants scrutiny and in the winter I actually flew out to L.A. and was trying to track him down. I went to his office in Beverly Hills which was like a ghost office. There was nobody there.
MELBER: You went to his office before all this.
TWOHEY: I went to his office. I went to his home. He refused to come out and answer questions. And some of my colleagues have been able to talk to him. But he, I think, has recognized that he -- it`s not in his interest to be in the spotlight and undergo this type of scrutiny. And I think that his past, you know, the fact there were these previous investigations is significant but it`s also important to note they didn`t, you know, he wasn`t charged.
As of right now the only thing on his record is a brief suspension of his license. And I think it was 2010 for like 90 days. So he has come under scrutiny by various bodies out there in California and has retained his license and has been able to continue practicing.
I think you are right that it`s interesting -- it is also important to note that what has come out today about his communication with Michael Cohen involving Stormy Daniels was not isolated communication that he had in fact communicated with Michael Cohen around the settlement that Karen McDougal, well not a settlement that basically --.
TWOHEY: An arrangement that she made with American media/"National Enquirer."
MELBER: Well, let`s read from the texts. Because as you get into them, and as people then get an understanding of why he is, if anything, kind of the anti-Avenatti. This is what he is doing with Cohen.
Quote "Cohen says look, let her do her thing but no interviews at all with anyone. Davidson says 100 percent. Cohen, thanks pal. Just no interview or statements unless through you. Davidson, got it."
Does it read to you like two adversaries, the way Cohen and Avenatti are? Or does it read like Davidson is taking orders from Michael Cohen?
TWOHEY: Well, I mean, there`s no doubt that Avenatti and Cohen are adversaries. I mean, that is the way that he has, you know, Avenatti came out swinging, the moment that he started took over the Stormy Daniels` representation.
But when two lawyers have basically struck a settlement on behalf of their clients, I don`t think that necessarily has to be adversarial by nature. And so, you know, I think that there is still questions about the significance of that communication.
I think that what is interesting in the Karen McDougal case, Michael Cohen wasn`t a party to that arrangement that she struck with American media. So why was --
MELBER: Just popped up like Forest Gump.
TWOHEY: Exactly. So why is Keith Davidson messaging, calling and messaging Michael Cohen the day that agreement was struck?
MELBER: Brian, I would like your analysis on the same question. Megan striking the measure note that we would expect from a Pulitzer-Prize winning reporter, that these quotes in or out of context could go different directions. They are not smoking gun.
The larger context, though, as she mentioned and I reported and we have reported previously on this show is that Michael Cohen is popping up all over the place and seems to be allegedly corrupting the representation of these women.
WICE: And I think you are absolutely right.
Look. It`s the adversarial system. It doesn`t mean we have to be adversarial but it doesn`t meant that you sell out your client. If I`m involved in litigation with an assistant district attorney or an AUSA, we can be civil but we are not going to be boys. We are not going to have cocktails and I`m going to do everything I can to have my clients back.
And while I think that there will is some nuance in these text messages, I think the bigger picture seems to suggests that Mr. Davidson somehow lost sight of the fact that rule one in the advocacy play book is you have your client`s best interest at heart. And you have to willing, in the words of noted legal say to Michael Cohen, to take a bullet for your client, as long as it doesn`t hurt.
MELBER: Bryan Wice quick with the references. He may have gotten more than you.
TWOHEY: And certainly --.
MELBER: Possibly. But who is counting? Just kidding. We count every night on THE BEAT.
Brian Wice, Megan Twohey, on a complex and fascinating story, thank you so much.
Coming up, does Donald Trump only care about pardons when pushed by celebrities? We are going to look at this in the larger context of criminal justice reform and systemic racism.
Also, Bob Mueller`s crackdown on encrypted messages, why he has got people turning over their phone and their Whatsapp?
Also, Giuliani with a new conspiracy about Bob Mueller.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, PRESIDENT TRUMP`S LAWYER: They are a group of 13 highly partisan Democrats that make up the Mueller team excluding him are trying very, very hard to frame him.
(END VIDEO CLIP)
MELBER: Then we take a turn to legendary to journalist Seymour Hersh making his debut on THE BEAT tonight. I`m Ari Melber. And we will be right back.
MELBER: When it comes to criminal justice, one of the most significant stories in the nation is how harshly our system punishing people. A system of mass incarceration that is numerically harsher than any other modern democracy with very long sentences for people convicted even of nonviolent drug offenses, many of whom are poor or minorities.
Now today, President Trump did something linked to that problem though not at a policy level. At the individual level he is releasing Alice Johnson, a non-violent drug offender who was serving a life sentence for a nonviolent offense. She served over 21 years.
(BEGIN VIDEO CLIP)
ALICE JOHNSON, NON-VIOLENT DRUG OFFENDER: I`m a mother, grandmother and great grandmother. In less than two weeks, this October 31st will mark my 21st year of confinement in federal prison. I made one of the worst decisions of my life to make quick money. I became involved in a drug conspiracy. If I could go back in time and change the choices that I made and make difference choices, I would.
(END VIDEO CLIP)
MELBER: That was her plea. And today Johnson sentence was commuted. A traditional symbol of justice or mercy in cases where the DOJ recommends that someone either has been punished enough or even too much.
Now, was that President Trump`s motivation? Well, we know that it was her sponsor, celebrity Kim Kardashian west who just met with Trump and she lobbied for Alice Johnson in that White House visit which Trump rushed to promote in a tweet.
So the President wanted that celebrity cameo and was apparently willing to do something for it. In manner that actually laid bare what this transaction was to him. Because we know the President is MIA on the larger question of criminal justice reform which actually has grown into a bipartisan call lately to address. The excesses and discrimination of America`s long running drug war.
(BEGIN VIDEO CLIP)
BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: Mass incarceration makes our country worse off and we need to do something about it.
UNIDENTIFIED MALE: We need to make sure the war on drugs is equal protection under the law and we don`t unfairly incarcerate another generation of young African-American males.
SEN. CORY BOOKER (D), NEW JERSEY: This has devastate sod many of our communities particularly communities of color.
CHRIS CHRISTIE (R), FORMER NEW JERSEY GOVERNOR: We should not be incarcerating addict who is are not dealers and are not violent.
(END VIDEO CLIP)
MELBER: By contrast, Trump hasn`t pushed for those kind of reforms in Congress even as Jared Kushner claims to back a related bill in the Senate. And when the issue arises, Trump has called for things that are actually so punitive, they would be unconstitutional like executing people who have not committed capital offenses.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: If we don`t get tough on the drug dealers, we are wasting our time. And that toughness includes the death penalty.
(END VIDEO CLIP)
MELBER: That was this year.
So let`s report on this issue tonight on these sentences. Let`s explore it but let`s not pretend this was this President`s goal.
You know, we lived during a presidency that was obtained by a man obsessed with attention. Trump occupies the job now with the most built detention in the world. I mean, if do you took Taylor swift, Kanye West, Drake, Pusha T, had them all meet for dinner in Time Square, there would still be fewer video cameras there than every time the President of the United States walks down the street.
But for him apparently, that is not enough. So this commutation is in the news tonight because Trump still wanted more attention, more celebrity. Why did Trump suddenly discover criminal justice? You know, you can capture this whole strange exchange with a few lines from Travis Scott.
Why would you do it? Why would you switch up? Was it for the images or for the pictures? We know it was for the pictures.
Now, for her part, Kim Kardashian thought of way to barter a day of her time and a picture for another person`s life. Now maybe the next celebrity to visit Trump will push for even wider policy reform. Consider half of state prisoners are in for non-violent offenses. Three thousand people right now doing life without parole for nonviolent offenses, just like Miss Johnson. Black men, we know, will get 20 percent longer sentences for the exact same federal crimes as white men.
And meanwhile, there are 10,000 people in America right now waiting to hear if Trump will approve their application for the same kind of commutations.
Now this man is the DOJ`s acting pardon attorney, a career civil servant who determines who deserves these kinds of pardons or commutations. But from what we know, this is important, after over a year of Trump, it appears that none of the seven people that he has pardoned or commuted were formally recommended to him by that lawyer who does this all day at the justice department. Instead, the recs came from Kim Kardashian, from Sylvester Stallone, and from people Trump saw on FOX News.
So whatever your view of the criminal justice system, this process right now unfolding under Trump is obviously publicly broken, which isn`t good for mercy or law and order. And when it appears Kim Kardashian is now something like the shadow pardon attorney of the United States of America, well, she may have gotten this recommendation right but if this process sounds terribly wrong to you, it`s because this process is terribly wrong.
I turn now to Maya Wiley, a former chair of New York City police oversight commission, civilian complaint review board. As well as Danny Greenberg who used to run a legal society which represents most of the indigent defendants in New York. He now does pro-bono work at the law firm Schulte Roth & Zabel.
Thank you both for being part of this discussion. Your reaction.
MAYA WILEY, FORMER COUNCIL TO NEW YORK CITY MAYOR: My reaction is that Donald Trump is not missing in action on criminal justice. He is actively working to unravel the reforms of the Obama administration put in place to make it more fair. And he is doing that through Jeff Sessions who is, for example, taking a memorandum that Eric Holder put in place telling U.S. attorneys offices around the country, for example, to not throw the book at low level offenses and rack up the charges so that folks would become subject to ridiculously long sentences that far outpaced the actual allegations that were happening.
And just to add to another important statistic that a long once that you have mentioned, Ari, is pardons themselves have been racially discriminatory. So one example from (INAUDIBLE) was that you were four times more likely to be pardoned if you are white and a criminal offender than if you are black.
DANIEL GREENBERG, SPECIAL COUNSEL, SCHULTE ROTH & ZABEL: Well, fill the gap what Maya said. There actually was a process under President Obama for clemency. The clemency for people exactly like the person who has done today. What happened today was good. I`m not going to give the President any credit for that. It`s more like a broken clock being like twice a day rather than anything that`s legitimately thought out.
MELBER: Or a broken Instagram tour, as it were.
GREENBERG: There you go. Because you are younger than me, you knew that. What I would say about the Obama administration had in place the pardons of about 1,000 people who are in this process. Hundreds of volunteers including my law firm. Schools, churches taking people who had been in prison for more than ten years on drug charges when African-Americans were charged for crack cocaine at 100 times more sentencing than a white person would for regular cocaine.
So there was a process. If this was a President who cared about that kind of issue, all he had to do was continue that instead of cutting it off.
ARI MELBER, MSNBC HOST: Does it disturb you that to get to even the right answer it might take just this type of celebrity lobbying. Is that worth the price Maya?
MAYA WILEY, FORMER COUNSEL TO MAYOR OF NEW YORK CITY: Well, I don`t think we paid a price for the fact that we had some justice done in one particular case. I think we pay the price if there is a perception that Donald Trump actually cares about something he actually does not care about, in fact, has been reinforcing very draconian unfair criminal justice policies. So -- and remember Donald Trump, this is the man who when he ran for president said things were that were both factually inaccurate and racist.
For example, he said that 80 percent of murders of white people in the United States were committed by Black people. That`s not true. And it actually reinforces a stereotype which is one of the reasons why we see such discrimination in the criminal justice system which suggests that Black people or Latinos or Native Americans are somehow more violent, more dangerous, more likely to commit crimes which is simply a factually inaccurate stereotype. It`s much more about the fact that we spend much more time criminalizing behavior in communities of color that we do not criminalize in white communities.
MELBER: And in closing, I will read something that Miss Kardashian-West said. She said I hope to continue this important work by working together with organizations who`ve been fighting this fight for much longer than have and deserve the recognition. She`s obviously a celebrity and an entrepreneur and a successful businessperson. She did stand up for someone and got this result. The question is what everyone wants to do about it at a systemic level and not getting confused about what the President`s goals may have been. Maya Wiley And Daniel Greenberg who have been working on these issues for decades. Thank you both. Up ahead on THE BEAT, legendary investigative reporter Seymour Hersh on how the Watergate reporting model could apply to the Trump era and also next when Fantasyland meets your legal defense, Giuliani accusing Mueller of a frame-up.
MELBER: The other top story tonight. The heat turning up in the Mueller probe, Trump lawyers have a new and bizarre conspiracy theory. Sources telling CNBC -- well, I should mention first the Giuliani frame-up. Source is also telling CNBC they`re asking now for Mueller`s team to get people`s personal phones to get to the bottom of these encrypted messaging apps. Of course, Mueller accusing Manafort of using those kinds of things to tamper with witnesses. New pressure gives context for this what I want to show you an odd legal argument.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, LAWYER OF DONALD TRUMP: There are a group of 13 highly partisan Democrats that make up the Mueller team excluding him are trying very, very hard to frame him.
(END VIDEO CLIP)
MELBER: I`m joined by Kurt Andersen, author of Fantasyland: How America Went Haywire which is out in paperback and John Flannery, a Federal Prosecutor who`s served as Special Counsel in three separate congressional investigations. Let me start -- John, is that a crime that Rudy`s accusing him of?
JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Absolutely. There`s no way to frame a person unless you`re making a charge for which you have no facts or law to support it. And the outrage is that he and I served in the Southern District of New York. We were Republicans and Democrats appointed by a Republican US Attorney during the Nixon administration and we prosecuted Democrats and Republicans. The separation of your choice of how you vote is very separate from the professional responsibility to choose to go after one person or another for misconduct they actually do. I think what Rudy has done is a shame and a disgrace as a former U.S. Attorney and as a former justice official and he knows better ad it`s an outright lie.
MELBER: You think -- you think he`s outright line beyond what is zealous advocacy for his client?
FLANNERY: Yes, I think it`s outrageous. I think it`s absolutely outrageous that he is an officer of the court who would be putting down an entire system based on the exercise of an individual`s right to choose to elect one candidate or another separate and apart from your professional job. All across Washington D.C. in this nation, there are people working in jobs doing their best for the taxpayer and the government and their partisan preferences do not have anything to do with the job that they do. It`s a slur on all American employees of any government state or federal and it`s outrageous. When you can`t answer an allegation, you attack the alligator and that`s low ball and that`s not deserving of public discussion by a person with his background as a Prosecutor, Justice Department Official, a Mayor who was celebrated. And so he`s using what was his good name to defame all of these people. It`s an outrage.
KURT ANDERSEN, AUTHOR, FANTASYLAND: Well, it`s certainly true. It`s extraordinary that he would use the phrase frame them. But it`s of a peace with his employer, with Donald Trump who until Rudy Giuliani came along had lawyers who whatever you think of them or their competence or their skill kept more or less to the lawyerly decorum of how they spoke about the process and they were cooperating with more of the rest. With Rudy Giuliani, you have somebody who`s willing to propagate exactly the kinds of spectacular falsehoods that Donald Trump is in the kind of language that he is about oh he could have murdered James Comey. Oh yes, they`re trying to frame him. I mean, he is playing to his audience of one in his extraordinary way.
MELBER: So most lawyers -- most lawyers don`t talk about murdering former FBI officials.
ANDERSEN: Usually not when they`re -- when their client is being investigated.
MELBER: I wonder if you think about the way this stuff gets laundered or to use the term of the year, normalized because truly outrageous things are pushed on the margins. They don`t start with Trump even though he obviously says many false and defamatory things and then they migrate. So take a look for example at Trump`s favorite quality of quoting other people here on Twitter. He promotes Gregg Jarrett`s book the Russia Hoax: A Scheme to "Clear Hillary Clinton" and "Frame -- there`s that word -- Donald Trump" and says David Asman said the DOJ is out to "frame Donald Trump." Joe diGenova who was the ultimate Trump fan fiction lawyer, I mean, this was -- this is what he wants. He tried to pull him right off the Fox screen and it didn`t work out. But this was the kind of stuff he was saying.
(BEGIN VIDEO CLIP)
JOE DIGENOVA, LAWYER: There was a brazen plot to illegally exonerate Hillary Clinton and if she didn`t win the election to then frame Donald Trump with a falsely created crime. Make no mistake about it. A group of FBI and DOJ people were trying to frame Donald Trump of a falsely created crime.
(END VIDEO CLIP)
MELBER: You`ve been exploring this, the work that fantasy and conspiracy does in modern American life. We have more access to information than ever before but it doesn`t seem like things are going that well.
ANDERSEN: Well, and it didn`t start with Donald Trump. I mean it is extraordinary everyday especially when we`re getting into the legal system and questions that the judiciary will -- well a judge, which I regard as the final firewall between profligate fantasy and reality-based governance. We`ve been creeping this way and Donald Trump has exploited it he got elected by exploiting it by brazenly asserting falsehoods and conspiracy theories every and all the time and that`s how he got into politics. That`s how he was like the president. Now he`s doing it as the President and we have the former Mayor of New York, the former heroic U.S. Attorney of the Southern District not just enabling it but parroting it. And it is -- you know, Donald Trump will end. The Trump Administration will end. The fantasyland history that that gave rise to him will not end when he`s gone and I worried that as the President and his lawyer are continuing this the set of mental habits and encouraging him it will be -- it will not end this trouble when he`s gone.
MELBER: And that is the ultimate, the ultimate dark note to pause on, not to end to use your word, to pause on. Kurt Anderson and John Flannery, thank you both. Up ahead, something we are excited about. My one-on-one with the investigative reporter Seymour Hersh on Trump, Nixon and the press straight ahead.
MELBER: The criminal cloud over Donald Trump`s presidency can get so dark it`s become commonplace to compare his problems to Nixon which is bad news for Trump considering the criminal probe into Watergate didn`t begin until years into Nixon`s presidency. Even though Watergate analogies are common, the investigators and journalists who cracked that story open are pretty rare. My next guest Sy Hersh was there breaking key stories for the New York Times like the news that it was the Nixon campaign funding Watergate burglars which tied the growing scandal directly back to the White House.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: The New York Times says McCord believes a lawyer from the committee to re-elect the president used money to persuade the Watergate defendants to plead guilty and not talk.
UNIDENTIFIED MALE: The questioning turned to John Dean`s account of executive clemency and money for the Watergate conspirators. Dean said the President authorized both. Mr. Nixon denied both strenuously.
(END VIDEO CLIP)
MELBER: And at the peak of the Watergate probe Hersh once made the front page of the New York Times with five different investigative stories in just six days. His new book Reporter: A Memoir depicts a Washington press corps that was often too cozy with his sources, too desperate for access to see the scandals unfolding in front of them from the grinding failure in Vietnam, to political corruption and human rights abuses committed in America`s name. Hersh says Watergate`s legacy does help keep presidents accountable and Sy is my guest tonight. Thanks for being here.
SEYMOUR HERSH, PULITZER PRIZE-WINNING JOURNALIST: Sure, glad to be here.
MELBER: Let me run one theory by you because you have such a wealth of the historical knowledge. It seems sometimes like Donald Trump knows that no matter how bad something may look if you actually do it in public it will still play as vaguely less sinister than if you keep it a secret. And so he literally talks about things that are in the ballpark of shall we say investigation interference that if they were on a secret Nixon tape might get you in more trouble but here they`re already kind of out there being laundered and normalized.
HERSH: What you`re really saying is -- the other way of looking at it is if we had a tape of what went on in the White House I think we`d be very disappointed. It`s what you see is what you got with this guy. Yes, I don`t think there`s this dichotomy you had with Nixon you know, talking about (INAUDIBLE) all his vulgar terms about other races in private and publicly you know playing the Christian card.
MELBER: You detail when you were working, the my life story that you had it already to go with one publisher, the New York Review books, but they wanted to add a paragraph that you felt was too anti-war and thus you pulled the whole story. How did you have the guts to fight like that and why was it so important to you not to compromise?
HERSH: You know, I think journalists are allowed to have opinions. But when -- I had a root canal and the guy who did it, I didn`t ask him whether he`s for or against Trump or anything like that, what are his politics were. If he does the job professionally, that`s what I cared about. I think we`re professional journalists and at the very best were very objective even though we have views and thoughts. And so I felt strongly about the war not because I was a left-wing wing bat, you know, I wasn`t. I felt I had covered the Pentagon for the Associated Press for a couple years, I learned from officers, OJT on-the-job how awful it was, how much killing went on that wasn`t needed. So I came away thinking we`re not going to -- this is a mess.
That was my view based on a person not on a political judgment but what I learned. And so when I got to the (INAUDIBLE), I think that`s what maybe follow the tip. I knew that bad things happen in Vietnam so I followed the tip about Lieutenant Kelly. I found him. I found his lawyer. I wrote a story and had trouble getting it published. And when I -- when I worked for the New York Times, I did for many years. I learned that there were many stories that we -- the paper instinctively wanted to be second on. You know, it`s hard to go after a president big time. And before Nixon that didn`t happen often.
MELBER: You just said something very fascinating that many outlets actually want to be second. What do you think today outlets want to be second on in national news or the Trump Administration?
HERSH: Today is very complicated because you have a president -- you guys are dealing with the president that is catnip for you in a way because people want to hear everything bad about Trump and you get huge order. I`m not talking about you collect -- you individually, I`m just talking about in general, the media both in television and print. It`s great reading to read about the idiot -- idiotic things that happen yesterday.
MELBER: Of course you know, it hurts my feelings when you lump me in with the media because I`m an independent individual, I`m a soul, Sy. I`m a soul.
HERSH: I tried to -- I tried to cave you as much as I can. But in general, I think the principle is if you want to hear a bad news about Trump or good news if you don`t want to hear, if there`s -- if good news is bad news, well, MSNBC, CNN, etcetera, the New York Times are always willing to give it to you, The Washington Post. And I think it gets harder for the average American it seems to me, he can tune you out. He could decide I like -- I like Trump so I don`t want to hear you.
MELBER: Let me read from the book about Watergate. You say they`ll never be a period like that in our business again. Nobody can understand what it was like. Boy wake up. Boy hear story. Boy gets story. Boy put story and paper. No trauma. How do you -- how do you compare the Watergate era to this Trump era?
HERSH: This was brand new Watergate. This is doing something that hadn`t happened before. You could go and get a story about it as I did in the New York Times about grand jury information and the New York Times never would publish a grand jury a story. And I remember Scotty Reston, the wonderful former columnist coming up to me one day when I was filing one about it and he was very upset for finally upset. We don`t do that and times were changing. You know, you -- so this is -- I think standards -- they did a road. It was just a different world then and I think we`ve gone there. I worry -- I worry that some of the things that Trump does might not be so bad.
MELBER: For example?
HERSH: I see it was a circuit breaker. We`ve had president after president. The idea of going off to see the guy in North Korea, I don`t think he`s a big player and that there`s been four or five big peace conferences between North and South. I saw an awful lot of second-guessing about it. Sure Trump didn`t plan it, he didn`t think about it. He operates from instinct but maybe let`s see what happens.
MELBER: Well, so you`re raising -- you`re raising something that is very hard to do particularly in the mediums we work with today or the Internet and the dominance of television which is proportion. You seem to be suggesting, Sy, that because Donald Trump is extreme in certain ways, race and gender being I think two obvious examples, that then that extremism is sort of imputed to all of his policy decisions. So for example what he`s trying to do in North Korea or Iran whether one agrees or not is certainly not as extreme. Those are relatively mainstream 50/50 kind of positions he holds and they`re sometimes just you know, depicted as not.
HERSH: Well, you`ve just said it. I mean, that`s exactly what I`m saying. What I`m saying is --
MELBER: Well, you`ve said at first, then I characterize it. That`s what I do here.
HERSH: You are characterizer huh, I think you do more than that. From what I see, you do more than that. But anyway, this is a man who if you want to talk about collusion, you`re talking about somebody to take steps A to step A because he wants to impact step B and you have a man that`s driven totally by impulse. So how you`re going to prove collusion? It`s very hard to me. I think it must be a real tough deal (INAUDIBLE) to use your word, a word a lawyer would use. It`s very hard to prove a criminal intent. He`s -- my God, he`s a real estate guy you know, which would you - - would you buy a used car from a real estate guy?
MELBER: Well, Sy, as someone I`ve looked up to, I think it`s a note we can end on. I want to thank you for what you`ve done for the Republic and apologize for what I`m doing to the Republic.
HERSH: No, don`t think it that way.
MELBER: I don`t. Sy Hersh, thank you.
HERSH: Don`t be me. Do not be me.
MELBER: Thank you very much. The new book is Reporter: A Memoir.
MELBER: Now, there`s something I want you all to know about. We have a show podcast now, commercial free, and it`s every night. You look for the purple podcast icon on your home screen, click there. Go to the search bar. Type in THE BEAT with Ari Melber, click on it. You`ll see the show page pop up and you can get the nightly show if ever missed it. Check it out where ever you get your podcast.
MELBER: Hope your hump day is going well. That does it for the Wednesday edition of THE BEAT. We`ll be back at 6:00 p.m. Eastern tomorrow. "HARDBALL" with Chris Matthews is up next.
CHRIS MATTHEWS, MSNBC HOST: Rudy calls it a frame up. Let`s play HARDBALL.
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