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Trump floats plan to violate the constitution. TRANSCRIPT: 6/25/2018, The Beat.

Guests: John Flannery, Mimi Rocah, Sam Waterston, Ambrosio Rodriguez; Enrique Morones

Show: THE BEAT WITH ARI MELBER Date: June 25, 2018 Guest: John Flannery, Mimi Rocah, Sam Waterston, Ambrosio Rodriguez; Enrique Morones

ARI MELBER, MSNBC HOST: Donald Trump spent last week on the defensive and he partly caved over his border policy. Tonight, he is clearly eager to turn the corner. So let me tell you exactly what`s happening.

Your President is advocating a blatantly unconstitutional proposal to literally gut due process inside the United States. Now, from a legal perspective, the good news tonight is due process is not a choice for politicians. This is not Donald Trump`s call. It is a right secured in the Fifth Amendment of the constitution, of course, and it is upheld by judge judges, an independent branch of United States governments.

So Trump has raised a new topic that actually underscores limits on his own power, and maybe the limits on his knowledge because it is one thing to say you want to get tougher on the border and another to propose things that are so unconstitutional that basically everyone knows, including your allies in Congress, you can`t do the thing you`re talking about.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: They said we would like to hire 5,000 more judges, 5,000. You ever hear of a thing like that, judges. We want a system where when people come in illegally, they have to go out. And nice, simple system that works. You know, they want to hire now 5,000 more judges so that a person puts the toe in the land, we have to go to trial. This is crazy what we are doing. I don`t want judges. I want border patrol, I want ICE.


MELBER: The President doesn`t want judges. That sound you hear is the sound of no one caring. Nobody. Because under our constitution Presidents do not pick other branches of government. So tonight, I can tell you as a legal matter, no one cares if Donald Trump wants or doesn`t want judges.

Now if you put aside the actual rhetoric coming from the White House and even try to consider more technical version of this argument because people will be talking about it, you can say OK do people trying to immigrate to the United States get the same due process as Americans, even if that`s not the President`s call to make, is there too much due process for migrants. And the short answer tonight is no. The part of the government that makes this call, the courts, has ruled many times that even when the U.S. does denies entry to humans or deports them from the border which the U.S. can choose to do, they are still entitled to human rights. The Supreme Court upheld that in the 1800s and in 1953, and has recently as 1982. So keep those legal facts in mind when you watch the White House spokesperson today struggle to defend Trump`s legal fictions.


SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: It makes no sense an illegal alien sets one foot on American soil and go through a three to five year judicial process to be removed from the country. Thousands of illegal aliens are removed every month without seeing an immigration judge. Just because you don`t see a judge doesn`t mean you aren`t receiving due process.


MELBER: That`s the scene in Washington. And while it may be comforting that Trump can`t eliminate due process more than he can implement the original travel ban after courts blocked it, the administration focus on the side show occurs instead of more pressing duties, like reuniting families split under the partially discontinued policy.

Updates on that tonight. Parents are being told they can see their kids again if they agree immediately to deportation. One parent said they signed it out of desperation to see a six-year-old child, adding the truth is I can`t go back to Honduras. I need help. Another deported father has only been able to talk to his 6-year-old daughter was trapped somewhere in the U.S.


UNIDENTIFIED FEMALE: Papa. When are you going to take me out of here?






MELBER: I am joined by criminal defense attorney and former prosecutor Ambrosio Rodriguez and NBC`s Jacob Soboroff who as you know has been reporting this immigration crisis in Texas and has covered the border for us at MSNBC for quite some time.

I start with you as an attorney. Your view of Donald Trump saying things that underscore his own relevance because he doesn`t decide how many judges there are and how this operates against a backdrop of all the pressing work there is to be done.

AMBROSIA RODRIGUEZ, CRIMINAL DEFENSE ATTORNEY: Right. I mean, it is kind of ridiculous for him to take this point of view. I really don`t think he knows what due process is and how it works.

MELBER: You think this comes from ignorance than anything else?

RODRIGUEZ: Right. I mean, not just ignorance, but everything we have seen from this President which is ignorance on top of racism on top of race baiting, and using these poor people who -- I mean, we are talking about a very small group of immigrants that are coming from three specific countries that have been war torn. I mean, I have clients from this part of the world. And what they have to deal with is truly awful.

So I think what the President has done is made a statement that has all of us talking about what the rights should be for people involved and there`s no getting around the fact that under our constitution once you step into the country, there are certain rights and due process that they have.

MELBER: You were speaking to border patrol chief in the Rio Grande. Let`s look at that, Jacob.


JACOB SOBOROFF, MSNBC CORRESPONDENT: Are you trying to deter people from coming by separating children and parents and prosecuting 100 percent of parents coming here?

UNIDENTIFIED MALE: Yes. And we do not do anything, we are going to be in crisis mode.

SOBOROFF: Separating parents and kids is to put consequences on them coming here together.



SOBOROFF: So if Donald Trump cared about the rights of people, he wouldn`t have put a policy in place designed to tear families apart and rip apart the asylum rights of tens of thousands of people that come to the United States on a regular basis. This whole thing was done without any care in mind for the rights of people, whether it is due process or asylum. You are the attorney. I`m not the attorney. But I saw what it looks like on the ground when you don`t care about rights of people. It looks like children sitting in cages, by themselves, ripped apart from parents, and their parents at this point may be as many as all 2,053 kids that are left in the custody of HHS could be deported. And for all we know according to a DHS official may never see their kids or their parents again.

MELBER: Right. And that`s the human side of this and why there is outrage still going around the nation. You mention being an attorney. I mean, this is a crash course in a kind of law school for the nation, but not the good kind because everyone is sitting around their dining room table talking about how this works. And it is understandable that some people feel given problems in the country, given the poverty and everything that we all our own citizens, the question just come up, what do we owe other people? And yet this is a constitutional democracy that has due process.

I want to play Sarah Huckabee Sanders on the judges thing. It is good to have judges overseeing the process, it ensures it is fair. And a lot of people do get deported. We know that. The notion that the President and his people in the White House are spending today talking about, maybe we don`t want judges is chilling even though they don`t have the power. Take a listen.


UNIDENTIFIED MALE: Who has proposed to add 5,000 judges? I have seen 750 as a max.

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: There have been a number of different proposals, quite a few that we have seen. We have laid out what we would like to see. And hopefully Congress will work with us to make that happen.


MELBER: Walk us through how this is supposed to work when you have judges involved in the asylum and process.

RODRIGUEZ: First of all, I want the viewers to know that we are talking immigration judges, not federal district judges. And asylum judges or immigration judges are employees of the department of justice, so which Trump is in charge of. If he hired the number of judges or lawyers necessary, department of justice makes them immigration lawyers. This is an administrative process. This isn`t a long trial. And immigration hearing -.

MELBER: Right. You are making -- let`s be clear. So you are making a subtle distinction here which is the constitution says people have rights, and that includes noncitizens in the same way that they have a right to be free from torture. They have the right to due process. You are pointing out that the way this is executed through American law is that you have these immigration judges that are set aside to do that which is different and in many ways shorter and leaner than what Americans think of as full trial for an American citizen.

RODRIGUEZ: Correct. Because immigration is a privilege, not a right. Therefore the same kind of rights that you have in a criminal trial don`t apply in immigration hearing, which is an administrative hearing. Which by the way, the person seeking asylum has all of the burden. They have to prove their case.

MELBER: And based on what you said, do you think Donald Trump knows what you are talking about or not?

RODRIGUEZ: I think this President has proved beyond a reasonable doubt that he doesn`t understand how our government works.

MELBER: Both of you stay with me.

What I want to do is to turn to a very important guest here in California. There are ten state attorneys general who are now suing Trump over the family separation policy. California attorney general Xavier Becerra is helping to lead the suit, claiming Trump`s policy is both inhumane and draconian.

Thank you for joining me in a busy time as you work on this case. First question out of the gate. Even if someone agrees with you about criticism of the policy, what do you say to the narrow argument that Trump partly backed down last week, why do you need to sue?

XAVIER BECERRA, CALIFORNIA ATTORNEY GENERAL: Because his executive action, Ari, was incomplete, it was incomprehensible, and therefore probably doesn`t work right. We have no sense of what will happen to these children, where they will go, how long it will last. And so, like many of the things that this administration has done, they don`t really think through them in a logical way. And so we are filing suit to defend the constitutional rights of these families and certain of the children. No child should be put in a child internment camp.

MELBER: You are suing the Trump administration but you`ve also been out in the front here against attorney general Sessions, your counterpart at the federal level, and he blasted back at you. Take a look.


JEFF SESSIONS, U.S. ATTORNEY GENERAL: So California absolutely appears to me is using every power it has, powers it doesn`t have to frustrate federal law enforcement. So you can be sure I`m going to use every power I have to stop that.


MELBER: As you understand, he is alleging that California as a legal process which you lead are somehow out in excess of your state authority and that he`s going to push back. Your response, sir?

BECERRA: We are going to do what we need to do in California. We believe in upholding the law, including federal law and the constitution, and that`s exactly what we are doing. I think AG Sessions had at least one part right, that is that we are using every power we have under the law. And we would defend ourselves where we need to and we will file action to protect our people where we must. So far we have had a whole lot more victories than we have seen any kind of defeat in going against the Trump administration, and that`s principally because I think the courts are showing us, no one, including the occupant in the oval office, is above the law.

MELBER: You say no one is above the law. This goes to a very interesting point which you understand and I think viewers have gathered. The immigration power is second probably only to war making power for an area where the chief executive gets wide, wide latitude, traditionally in the courts, as you know. And yet in the travel ban and on sanctuary cities and then border separation policy, we have seen this President, even with the wide latitude appear to go beyond it.

What does it tell you? What do you think is the significance of the fact that this President, Donald Trump, seems to get into so much trouble when he tries to do things on immigration. Do you think that`s a product as we were discussing before you joined us of ignorance or of some malign intent?

BECERRA: I think it`s a cavalier way of trying to make policy and execute the laws. And they are running into the constitution. We don`t have the right in California to issue immigration laws and we respect the federal government`s right to enforce immigration laws. We have a right to enforce the federal constitution when the federal government and the Trump administration try to execute laws in a way that violate people`s constitutional rights. That`s why we have had victories against them on any number of issues, whether it is DACA dreamers, whether stop the Trump administration from cancelling the DACA program, or in victories we have had so far in protecting our state`s right to determine how we use law enforcement authority and not allow the federal government to believe they can come and deer us into doing what they want by holding hostage our federal friends that we should get here in the state of California.

MELBER: And final question, sir. When the President says we should maybe do this without judges, is that unconstitutional in your view?

BECERRA: It`s also immoral. It is also wrongheaded but it also against the law and a violation of due process. So on any number of grounds, what Donald Trump is saying is not going to happen, at least not so long as our institution stand up to this type of cavalier, rogue activity of the occupant of the White House.

MELBER: I guess I should also close by apologizing because I know you to be a seasoned litigator. So it is somewhat embarrassing, it is part of my job as journalist, I have to ask whether the Fifth Amendment exists or not, you know. I guess that`s where we are.

Attorney general Bacerra, thank you, sir.

BECERRA: Thank you very much.

MELBER: Appreciate it.

I turn back to the panel. Your response to what the attorney general says there and what he is doing, the state AG stepping up to put a line in the sand so if Donald Trump decided tomorrow to change his executive order, because he can go back and forth, that they would try to get a ruling locking this in.

RODRIGUEZ: First of all, want to thank him, as a lawyer, he is doing a great job defending our rights and standing up to this administration. I also want to say I think it is very important. There is no immigration crisis. This has been completely created by Trump to gin up his base. If we look at the numbers, that is people trying to come across the country without documentation or two thousand or three thousand people had been stopped in what this crisis has been going on for the last two weeks, this has been created to gin up his base. And what we are dealing with now is that we have an administration that is using people who are escaping civil wars, gangs, and horrible conditions.

You`re speaking about asylum context and overall data, but it is also true the United States has a long border, there is undocumented immigration. Whether we call it a crisis is a question. But there is an undocumented immigration challenge for law enforcement here.

There is and there always will be in the United States as long as employers don`t have to verify, don`t have a system where they are held responsible for hiring people that don`t have documentation. That`s really one thing that both Republicans and Democrats have in common when it comes to immigration, they don`t hold corporations accountable, only the poor people coming to work.

MELBER: You are talking about dual party system in terms of this hypocrisy, vis-a-vis corporate America. I am familiar with that. Thing they have in common.

Jacob, I wonder why then let`s step back. You are doing so much reporting on this. So step back. We talked the law and lawsuits. What have you seen out there in the past months on a story that started in one place where a Republican said this is a winner for them to the past several weeks where it does seem there`s to be a see change?

SOBOROFF: What I hope, what I think is that the Americans are starting to understand the difference between perception of what happens on the border and Washington, D.C. and the reality of what happens on the border.

The reality is you`re absolutely correct, there`s no crisis on the border. Undocumented immigration, apprehensions on the southern border are as low as they have been since the 1970s. It`s an unbelievable thing to hear the President talk about violence coming across the southern border, drugs going across the southern border, and use that as justification for ripping apart families, putting children in prison cells.

When the AG, attorney general Bacerra said as a journalist, it is fascinating to hear them talk about the lawsuits, don`t know where the kids go next. I want to see where the lawsuits go because from state of California, from the ACLU, I don`t know at this point, we know kids aren`t going in cages, but we don`t know where families are going. Are they going to be indefinitely detained at this point by ICE? Do they have to let these families out and go after 20 days. MELBER: Well, you are -- and you are putting your finger on such an important part which is many of the parents, particularly those who signed in detention orders as we are just reporting on for deportation have little to no standing to get kids their back.

SOBOROFF: That`s exactly right.

MELBER: We have seen senators held at the doorway of the institutions, you and other journalists have been trying to report it out. If these go forward, the one we are reporting on tonight, that creates additional leverage point and standing to keep an eye on this and see about the humanitarian part of it. Well, briefly before we go.

SOBOROFF: I just going to say could change the game, as they say. I mean, it really could change what ultimately happens with these people. And as we know right now, 2053 young kids are sitting in detention tonight in HHS custody. The questions before were where are the girls, where are the toddlers? Those questions still apply. But the next question is where is everyone going next? And we don`t know the answer tonight.

MELBER: Jacob Soboroff, we are indebted to your reporting. I`m glad to get it here from your reporting.

Ambrosio Rodriguez, there is a lot of experience. Appreciate your legal handicapping of another weird legal day.

Coming up, we turn to reverend Al Sharpton. He will be with me live to talk about his trip to the border and civil rights alliances being built.

Also, Paul Manafort has a new filing. He is pushing now to get out of jail. We`ll explain.

And former head of black water cooperating with Bob Mueller.

All that plus the actor who was made famous online. Sam Waterston joining me to talk about why he is getting involve in the Mueller case.

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


MELBER: Press secretary Sarah Huckabee Sanders calling on Congress today to fix immigration policies and saying that these Trump order from last week is temporary while blaming for the mess.


SANDERS: The President`s executive order has given a temporary solution to the problem but it is not permanent and we need Congress to step up. We need Democrats to stop playing political games, do their jobs, work with this President, and let`s fix the problem at the border.


MELBER: That`s the White House argument today. Keep in mind, it is over 2,000 children who remain separated from their parents, many all over the nation because of Trump`s policy.

MSNBC`s Cal Perry who has gotten one of the first look inside a tent camp. This is in Tornillo, Texas that holds 300 children, 23 separate from parents under the now partially discontinued policy. Here`s what the emergency manager told him.


UNIDENTIFIED MALE: The shelter would not have been necessary without the separations.

Quote "the crisis was made as a result of the decision to separate the kids." Quote, "separations should never have happened. The process is flawed, he said, and it harmed the children."


MELBER: I`m joined by Enrique Morones, founder and director of immigrant rights group Border Angels and reverend Al Sharpton, president of National Action Network. Of course, my colleague is the host of "Politics Nation." And I should mention, Rev., you just got back from visiting children at another Texas detention center. Let`s start there.

Nothing new about the American civil rights movement engaging with international issues. As a legal matter, as we are reporting, some of the people you`re visiting with may not have the legal right to be here, may not stay here. Walk us through what you see as the human rights issue here, rev.

REV. AL SHARPTON, MSNBC HOST: I think the human rights issue is clear. You are talking about a decision to separate the children from their parents, and the children may never be reconciled. I think a lot of what people are missing, Ari, is that they did not have a plan to reconcile the families when the President signed the executive order, then they never had a plan. Because all they had to do was go ahead and use the plan they were going to use down the line when they are going through the process.

So it was really that they had no intention of dealing with the human value here. Where we got involved, civil rights groups, is you have two borders to this country, you have the Canadian border and Mexican border. Why did the President say we are going to separate families coming over the Mexican border which are South Americans and Central Americans? Because he knew they wouldn`t tolerate one or two babies taken from a white Canadian.

So the race involved, the dehumanization involved, and when we see (INAUDIBLE) over 200 children, some of them are part of this group of children that were denied because of family separation, they are in communities everywhere.

MELBER: Well, I wonder, Rev., whether the premise of the statement you make, which of course, some in the White House was strenuously object to is that also Donald Trump thought that the absence of white children, of white babies here would mean he would quote-unquote "get away with this." Was he wrong?

SHARPTON: I think that he may or may not have been wrong. The question is, is the position morally and legally wrong. And I think the answer is clear. How do you have any double standards in the application of law and not be wrong legally and morally. He is not banning all people that come in here illegally saying -- he did not ban that saying, you have family separation. He only did it in this particular case. And one can only ask the question why, particularly when we have a decrease in numbers of people coming across the Mexican border into the United States.

MELBER: Enrique, walk us through what you see as the priority when we`re here gathered tonight with 2053 children at least still effectively orphaned by Trump administration policy.

ENRIQUE MORONES, FOUNDER/DIRECTOR, BORDER ANGELS: As usual, the reverend is absolutely right. This is a racial issue. It is horrific what Donald Trump is doing. No other country in the Americas has a wall. No country in the world separates children. If these children were white, if they were Canadian or Norwegian likes, they would not be separated.

What he is doing is inhumane, the whole world is watching. I was at a detention facility Friday with Senator Kamala Harris. What is happening is unbelievable. How can you separate a child from a parent? And that picture, you know, that made for a picture moment of signing an executive order which has no legs to stand on, Donald Trump is pure evil. What he is doing is horrific.

The whole world is watching, including our children. We teach our children to love their neighbor, not to do bullying. What is taking place now, there`s people sent back to Central America. They don`t know where their children are. The children never got to say good-bye to their parents. It is the worst of the American spirit and we need to continue to rise up and demand change as reverend Sharpton did in the civil rights movement, we need to do that now.

MELBER: A lot of people argue it is not the American spirit. It is (INAUDIBLE) to it. You mention Senator Harris who is one of the many people who have done visits, trying to use their power and platform to draw attention to it so people can deal with the facts of what`s happening to these people, these children in facilities. Take a look at Senator Booker and Senator Harris and others.


UNIDENTIFIED MALE: Zero tolerance policies, they really are undermining actually things that were working, processes that were established, and we have unfortunately an administration committing moral vandalism.

UNIDENTIFIED FEMALE: I think there`s no question we have to critically re- examine ICE and its role and the way it is being administered and the work it is doing, and need to think about starting from scratch.

UNIDENTIFIED MALE: It is wrong to separate babies, to use cruel, inhumane policies in order to gin up your political base.


MELBER: Rev, for you, final thought on what we are hearing there, and also what you are hearing when, you know, in the old days a lot of white politicians claimed they were for the constitution while doing things in Jim Crow that undermined the bill of rights. Talk to us about where we stand where the President is openly saying he is against the Fifth Amendment due process protection.

SHARPTON: I think that we are, after going down which is just the norm at the center, and seeing some of the families, we are in the middle of a real moral crisis and legal crisis and I think that the country deserves and must have legal leadership and moral leadership that will stand up and say that when we have a President that just disavows the constitution, what are we talking about, it is a threat to anybody. And it may start in Mexico. It will come to all of us. We cannot allow this to be unaddressed and not confronted.

MELBER: You know, you said what are we talking about, and people who know you in the halls of 30 Rock, that`s a phrase of yours. What are we talking about? What are we going to do about it?

Reverend Sharpton, always good to have you. Enrique Morones, my thanks to you returning to THE BEAT.

I should mention "Politics Nation" of course airs every Sunday at 8:00 a.m. eastern. Don`t miss the rev. there.

Now up ahead on The Beat, Paul Manafort has a new push, he wants out of jail.

And also Bob Mueller digging through the phones and laptops of a key Trump ally who is now cooperating. I have that reporting for you when we`re back in 60 seconds.


MELBER: Theo other top story tonight, Bob Mueller gets a new cooperating witness as Paul Manafort makes his first major legal move since he was jailed in that dramatic hearing earlier this month. Now, the new Mueller witness says he`s cooperating and this could give Mueller firsthand access to some of the big questions in this probe. Now here`s the news. The controversial former CEO of the military contractor Blackwater, a guy you may recognize, he`s named Erik Prince says he`s cooperating.

Now, this is big because he had allegedly met with a Putin ally on a remote island off the coast of Africa. Mueller wants to know if there was a discussion of any back-channel to Trump officials and whether that raised criminal dealings. Now Prince says yes he`s cooperating with Mueller but he adds no he did not arrange any back-channel. But he`s not just talking. He also says he gave Mueller`s team "total access to his phone and computer. Now that is valuable. Then, of course, there are the other people in the probe who are not cooperating. After ten days in jail, Paul Manafort has a new legal move tonight. He is saying he will appeal that ruling which landed him in jail after the alleged witness tampering.

And while Paul Manafort is Mr. Manafort`s government name, he now has a different government identity. He is an inmate in the Northern Neck Regional Jail in Virginia where he is known as Inmate Number 45343. He`s housed in a cell that measures somewhere between 12 by 12 feet and 14 by 14. That cell has a toilet and a shower in a small table plus a T.V. and a phone that he is allowed to use for outgoing collect calls. All of this has got to be a major adjustment for Manafort. Other court filings revealed lavish spending on everything from fancy tailored suits, to antique rugs, to his favored Range Rovers. I`m joined by two former Federal Prosecutors John Flannery and Mimi Rocah. John, what does it mean to you to see Erik Prince publicly saying he`s cooperating and he handed over his stuff?

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: If it sounds and feels like he`s still shaving points. You had him going to Seychelles in the Indian Ocean and he just happened to meet you know, a well-connected wealthy Russian who would help set up a connection between the Putin people and the Trump people. And now he`s denying that that`s not what it was about. And he originally made statements saying he was just surprised when he arrived in this glorious spot out in the Indian Ocean when in fact we now know that he knew about it beforehand and he asked for the meeting. So not everybody cooperates clear --

MELBER: You think he`s a liar? You think he`s a liar?

FLANNERY: I think he`s a liar, yes. I can`t believe him and I -- you know, it`s hard to believe any of these people. You know, there was a comedian years ago, he`d come on he tells a story and be confronted and he go, oh well, yes and then he`d tell another lie. These guys fit that kind of comic model.

MELBER: And Mimi, Paul Manafort trying to get out of jail means what?

MIMI ROCAH, FORMER FEDERAL PROSECUTOR: I don`t think it means just getting out of jail. The appeal is a real long shot. I thought it was very likely that the judge was going to detain him and she did she made a very good factual record and appellate courts really do tend to show deference to district courts and bail determinations. She would -- they would have to find clear error and her factual findings and I don`t think there`s any way that`s going to happen given his conduct and the showing that the Special Counsel`s office made so I don`t think he`s getting out of jail.

MELBER: Right you`re making -- you`re making the point that these kinds of things once your jail don`t start on the 50-yard line. You`re at a huge disadvantage because the appeals court is likely to accept the finding that you have to be jailed unless you overturn or uncover something big which then raises the strategy question. Are his lawyers doing this because they think they have a shot are they doing this to placate him because he doesn`t like being in that little cell.

ROCAH: Well --

FLANNERY: We can`t -- I`m sorry. Go ahead.

ROCAH: Oh, I`m sorry.

MELBER: Well, to Mimi first. Sorry, to Mimi. It seems to me that they`re making every -- their fighting hard. I mean, why exactly they`re doing it, it could be a lot of client appeasement. I mean, they`re making all sorts of motions in the district court as well, pre-trial motions in the in the other case, the one that`s going to trial in July. And you know he`s facing -- he`s fighting hard and why you do that it can be not even necessarily because you think you`re going to win but because you can`t accept that you`re going to lose. And I kind of think that`s where Manafort is right now. He is clearly not wrapped his head around the fact that he either is going to get convicted at trial or it needs to plead guilty whether that means cooperating or not and that is increasingly what it`s looking like and I don`t know why his lawyers seems to be appeasing him.

MELBER: Now, Mimi, if I`m not mistaken, you`re moving beyond a legal analysis into emotional analysis. Well, no. I mean, you know, yes. It`s more of a psychological analysis how about that. And I am constantly trying to think about you know what phase these charged defendants are in because it is a process for them that they go through. It`s an evolution and he`s in the denial phase still as far as I can tell.

MELBER: So John, speak to that Mimi is speaking to maybe to five stages there, the psychological dealing with being in that -- being in that cell where you have time to think. What do you know from being a prosecutor about are there -- are there also five stages of accused money-laundering and witness tampering and at what point do you say well did I do that, do they have the evidence what`s my end game.

FLANNERY: Well, I think you can`t win the lottery unless you buy a ticket and there`s some of that in any motion that an attorney makes. And then I think you need a momentum of litigation. You may need a good argument. And there are two points that go against Manafort. First of all, he`s considered a risk of flight and that`s why he had you know, two anklets to keep track of where he was and they put him in his house and he put up $10 million and they still weren`t letting him out. But then in addition, you have the question of the strength of the evidence upon which the district court relied namely he writes to people who are potential witness and says you guys weren`t working in the United States where you were working over in Europe and then one of those goes to Mueller and says he`s trying to convince me to lie in this case. And so that kind of evidence and those kinds of factors I think are going to be hard to overcome. And to have the court of appeals, a three-judge panel find that there was an abuse of discretion by the trial judge when she said look, I thought about every possible way that I can allow you to stay out and I can`t find one. And I think they`re going to defer to what the district judge said.

MELBER: There you have it, John Flannery and -- no. John, I just want you to speak your heart and your mind when you`re on THE BEAT. You know that. All right, John Flannery--

FLANNERY: I know and I thank you for it.

MELBER: A little -- a little good mood moment in a tough legal day. John Flannery, Mimi Rocah, thanks to both of you. Speaking of law and Law And Order, Sam Waterston who I literally grew up on is on THE BEAT next and he has a message about protecting another famous prosecutor Bob Mueller.


SAM WATERSTON, ACTOR: In America, there`s a simple rule. No person is above the law. If you break the law, you pay the price.


MELBER: That`s not all. Late night host Desus and Mero take on some of the most wild campaign ads of this midterm season.


MELBER: These are not exactly normal times and we`re seeing many different types of people getting more involved in the resistance to Donald Trump including leaders from arts and entertainment. Sex in the City Actress Cynthia Nixon now running for Governor of New York, Jimmy Kimmel famously confronting Republicans directly over his views on children`s health care, Comedian Dave Chappelle endorsing a candidate for the first time, something we covered on THE BEAT. Now tonight, another very recognizable name weighing in, a man who portrayed something like the face of justice for over a decade. Golden Globe-Winning Actor Sam Waterston, he`s best known for playing Jack McCoy for 16 seasons on the NBC hit Law & Order. His character defined for many what it means to be a prosecutor.


WATERSTON: Where there`s a law, I`ll enforce it. Where there`s a crime, I`ll prosecute it. Where there`s a victim, I`ll speak for that victim. That`s my bottom line.

Did you know it was wrong when you ate your cereal?


UNIDENTIFIED MALE: He`s badgering your honor.

WATERSTON: Sit down and shut up Mr. Fineman.


WATERSTON: By the time I`m done you`ll be finished. So my advice to you is get out of my way.


MELBER: Law and Order is the third longest-running primetime show around. Waterston is now leading an effort with others to protect Bob Mueller.


WATERSTON: It`s up to us to protect his investigation and our democracy because no one is above the law. Not if you`re rich, not if you`re powerful, no one.


MELBER: Watterson, of course, is associated with a certain fictional vision of what a prosecutor can be, benevolent tough and on Law and Order almost always right but also willing to take public hits to fight injustice. In our politics today, of course, there`s been a different discussion about prosecutors. Portraits of some being unfair, aggressive, unwilling to take on cases of police misconduct and even misusing the grand jury system and ignoring the testimony of women. In fact, I should mention right here in New York State, our former Attorney General faces credible allegations of domestic abuse and violence against women that many say undermine the kind of law and order a prosecutor should represent. I`m joined now by Sam Waterston. I got to tell you full disclosure, big fan. Thank you for being here and to get it the other way, we have the sound, we`ll play it. We had to do that.

WATERSTON: Thank you. Thank you. That`s a familiar tune.

MELBER: Thank you. I want to get into this work you`re doing on Russia and Mueller which is so fascinating. But as a legal eagle and a law-and- order nerd, I`m just curious what you think being so associated with a character that so many people look up to in a certain type of prosecutor, what do you think about the conversations going on in the country about some prosecutors who don`t live up to that model?

WATERSTON: Well, I have to say I think it`s a little bit beside the point because the real issue it seems to me is the one that we tried to highlight Russia which is Russia tried to highlight in that ad which or the video streaming clip or whatever you call it which is that no one is above the law. And so if there`s a badly behaving prosecutor, there are laws to deal with that. If there is a badly behaving person in the country there are laws to deal with that. And so the real issue in my mind is whether or not anybody is going to be deemed to be above the law so the real issue is about the law itself.

MELBER: What do you see is the threat to Bob Mueller and what are you guys trying to do about it?

WATERSTON: Well, what I`m trying to do about it is to make people aware that this thing that the fact that the principle that no one is above the law is so very basic that we should all be alarmed when people make propositions that say that some people are above it. And that you know -- and I do that as a -- as a citizen, not as a celebrity. I always think it`s funny when people say the celebrities are doing this to get attention. When you`re working in show business people are generally nice to you and politics is a blood sport so there really isn`t any fun in doing this.

MELBER: Do you think that there is a possibility that Donald Trump will try to fire Bob Mueller and declare himself a kind of the first the first truly lawless president?

WATERSTON: Well, people -- I don`t know whether he will but it`s very important for every single American citizens. This thing about nobody being above the law, no one being above the law is like a foundational principle for us. If you take that away, then you -- then that`s it for America because you know, the law is not perfect. The law messes up. The law does all kinds of things wrong because it`s made by people and run by people and it is -- and people are subject to it. But to say that somebody could do a better job, I mean some single person just ask yourself what it would be -- who you would rather have let you know in the end what happened to the rest of Russian investigation and what happened in the 2016 elections and Russian interference?

MELBER: Sam Waterston, thanks for coming on THE BEAT.

WATERSTON: Thank you.

MELBER: And up ahead, there are some wild political ads that are going viral including this congressional candidate pepper-spraying himself. We`ll explain next


MELBER: Our politics has been consumed by the border crisis and the Russia probe but many candidates in the midterm races are actually trying to break through with their own messages, some succeeding like Texas Democrat M.J. Hegar, a combat veteran who explains how many doors she`s had to fight in opening them for her career. This creative ad looks like it`s bands decade in a single take, it now has gone viral with over two million views and that success addresses one of the big hurdles for any new candidate name recognition. Take this ad in Maryland which goes after that issue by trolling Trump on the topic of same-sex marriage.


RICHARD MADALENO (D), GUBERNATORIAL CANDIDATE, MARYLAND: I believe in public school is not vouchers.

UNIDENTIFIED MALE: Take that Trump and Betsy DeVos.

MADALENO: And what`s the number one way I piss off Donald Trump and the Republicans? Take that Trump!


MELBER: Now those are both heartfelt biographic ads. Another candidate may have overdone it by trying to break through with a movie reference a little Top Gun fan fiction.

DAN HELMER (D), CONGRESSIONAL CANDIDATE, VIRGINIA: Planned Parenthood and ObamaCare you voted against, you`ve lost that centrist feeling. Because you`ve been right-wing appealing.


MELBER: No spoilers but the voters will get to decide if that works. And now we`ve saved the most bizarre for last. This is a Colorado Democrat who decided to pepper spray himself on camera in this literally painful ad.


LEVI TILLEMANN, CONGRESSIONAL CANDIDATE, COLORADO: This will stop anyone in their chest. For less than one dollar per person in the U.S., we can have a secured canister of pepper spray in every classroom in America.


MELBER: We checked and that candidate told us he stands by the ad. The idea was to show an alternative to guns in schools. But if your ad displays questionable judgment, the voters could grade you down. Now the comedy host Desus and Mero offered their take on that ad.


DESUS, COMEDIAN: The Democrats might actually lose the next election. (BLEEP) like this.

THE KID MERO, WRITER: (INAUDIBLE) and then waterboarded himself in order to get your vote? All right, damn. He took the Obama poster and just like double it like --

DESUS: Levi didn`t put a lot of work into this.


MELBER: You know, we`ve all heard the line that any press is good press which is true enough for people who just want press. It`s not true in every midterm campaign and now the voters in Colorado have to decide if someone wants to be in Congress so badly they will pepper spray themselves for it, do you want that person in Congress?


MELBER: We are out of time and out of pepper spray so that does it for THE BEAT tonight. I`ll see you back here if you like at 6:00 p.m. Eastern, but more importantly "HARDBALL" with Chris Matthews is up next.



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