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Trump orders FBI probe TRANSCRIPT: 9/28/2018, The Beat w Ari Melber.

Guests: Margaret Judson, Gary Shteyngart, Barbara Boxer; Val Demings; Libby Casey; Shawn Henry; Nancy Erika Smith

Show: THE BEAT WITH ARI MELBER Date: September 28, 2018 Guest: Margaret Judson, Gary Shteyngart, Barbara Boxer; Val Demings; Libby Casey; Shawn Henry; Nancy Erika Smith

KATY TUR, MSNBC HOST: That is all for tonight. Have a great weekend. You deserve it.

"THE BEAT WITH ARI MELBER" starts right now. Hi, Ari.

ARI MELBER: Hi, Katy. Thank you very much.

We begin with what`s happening in the Senate right now. One of the most intense high stakes legal political battles in decades of Supreme Court fights and with a partial surrender by Donald Trump. The president has been fighting to prevent any background probe of his Supreme Court nominee Brett Kavanaugh regarding new allegations of sexual misconduct.

Tonight, I could tell you Donald Trump just lost this round. He is reversing himself, agreeing to reopen the FBI background check. How did this happen?

We begin tonight with some behind-the-scenes moments you almost never get to witness in real-time. It all began, it appears, with a citizen, a sexual assault survivor confronting Republican Senator Jeff Flake this morning. You see some of that right there. Pleading with him not to back Brett Kavanaugh.

Now, Flake had said he would vote for Kavanaugh. But then within hours of that confrontation, Senator Flake did something that we rarely see in this choreographed partisanship era of the U.S. Congress. And it`s certainly something rare for many Republicans who seem to live in a quivering, quailing surrender to their leader Donald Trump.

Senator Flake just took a stand. And, on at least one thing, he effectively overruled Trump, forcing his colleagues to back this FBI check in order to even get that nomination moved to the floor. And that meant backing Democrats. So Flake is saying that he would not support Kavanaugh`s nomination until the FBI investigates.


SEN. JEFF FLAKE (R), ARIZONA: This is what I`m trying to do. This country is being ripped apart here. And we`ve got to make sure that we do due diligence.


MELBER: And diligence comes in a background check. The Senate Judiciary Committee was then going to go on and send Kavanaugh`s nomination to the full Senate with this stipulation. Now, this is a one week FBI probe. It will happen and we`ll explain more about that in our coverage.

But even after the committee vote itself, there was actual confusion because this was not choreographed, because this was happening last minute. And now I`m going show you something we just got into the newsroom here, as I mentioned, something rare. This somewhat confused exchange caught accidentally on a hot mic between the leaders of the committee.


SEN. CHUCK GRASSLEY (R), IOWA: We had to get this all done by 2:00.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Well, it is done? Is Flake`s -- is it going to happen or did you cut off a vote?

GRASSLEY: No, we didn`t have a motion in front of us. This is all a gentleman and women`s agreement.

FEINSTEIN: Gentleman and women`s agreement?

GRASSLEY: I would assume. But I`m committed to --


FEINSTEIN: Let him say what he`s committed to.


MELBER: Let him say what he`s committed to. That`s the ranking member of the top Democrat, Dianne Feinstein trying to make good, trying to turn this situation, the statements from Flake, this unraveling of what was a Republican phalanx, a union to try to avoid any FBI background check. And she is trying to get Grassley there to commit to it.

Now clearly, the Senators were trying to figure out in real time what the whole thing meant. Now, why does it matter? As I mention, at this very hour as the news continues to come in on a Friday night, President Trump backing down because of what you just saw, because of Jeff Flake, because Grassley said it was real, ordering this probe to take place.

Why does that matter so much in a world where you can`t tell between these hearings and between the posture in what`s real and what`s allowed? And if you have friends who said, "Well, I believe the president, the FBI doesn`t do this." Well, tonight the FBI is doing this. This is the same FBI probe Donald Trump said could not occur.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I don`t think the FBI really should be involved because they don`t want to be involved. If they wanted to be, I would certainly do that. But as you know, they say this is not really their thing.

TUR: Breaking news. The president has just put out a statement. Let me read it. "I`ve ordered the FBI to conduct a supplemental investigation to update Judge Kavanaugh`s file as the Senate has requested."


MELBER: So here we go. That pressure worked, and now the feds can talk directly with the penalty of perjury to people that Dr. Ford says were at the party in 1982 where she publicly and under oath has alleged Kavanaugh assaulted her in which he under oath denied. Brett Kavanaugh put out his own statement, this is through the White House. And he says he`ll cooperate as he has done in the past.

And then, of course, there is the missing witness, Mark Judge. Ford says he was in the room, that he was part of this. He is saying he will cooperate. Doesn`t have a big choice when it comes to the FBI. I will mention that Judge has denied Ford`s allegation through a lawyer.

So let`s get to it. In a moment, I`ll be joined by Former Senator Barbara Boxer and Congresswoman Val Demings, as well as "The Washington Post" Libby Casey to get into a fast-changing story. But I want to begin with the very latest on the Hill where there has been more news than usual. NBC`s Kasie Hunt on Capitol Hill.

Kasie, as a Senate expert, walk us through what was caught on that hot mic, why this matters as the White House changes its position.

KASIE HUNT, CAPITOL HILL CORRESPONDENT, NBC NEWS: Well, Ari, I actually want to start with a little bit of breaking news for you.


HUNT: Because as you correctly point out, everything has been moving very quickly. We just have a tweet in from Leader McConnell, Senate Majority Leader, on Twitter. He says today, "With the unanimous support of my conference, the Senate will proceed to the nomination of Judge Brett Kavanaugh to serve as an Associate Justice on the Supreme Court of the United States."

So this is a procedural step. We shouldn`t make too big of a deal about it. However, this was the step that had been previously turned into that critical make or break vote that we were going to see on the Senate floor on Saturday.

So what this represents is everybody in the Senate, Republicans, and Democrats, saying, "OK, we`ve agreed we`re going to talk about this guy." But both sides are pretty clear now that they are not actually going to hold a vote, the cloture vote, which of course is a Senate code for talking about the vote that is technically a filibuster. Still only takes 50 votes, and then a final vote.

That won`t happen until at least a week from today based on the agreement that was made here. And that`s part of what you heard play out on that hot mic. And the reality is we`ve known this all along. The FBI has always been able to do this as a background investigation if the White House wanted them to. Or if the Senate went to them and said, "Hey, guys. We can`t pass your nominee through the Senate if you don`t actually do this investigation."

And that is exactly what you saw play out today. And I think that there was actually quite a bit of relief among those Senators who had been under incredible pressure. And McConnell frankly had been the one putting them under that intense time pressure. But those key Senators we`ve been talking about all the way along, Susan Collins, Jeff Flake who, of course, took that stand, and Lisa Murkowski.

MELBER: I`m curious because you`re such a close student of it. What do you think moved Flake?

HUNT: Honestly, a couple of things. I do think that the moment in the elevator is something that likely stuck with him. I talked to him late last night as he was leaving the Capitol after this. He looked visibly pained. I mean he was under so much pressure. I think he was being honest when he said that he didn`t feel doubt or certainty.

I mean sometimes we miss in this process that frankly all the people who are trying to work up here, they`re people too. Yes, they are politicians, but they`re also people. And we don`t have the tape turned yet. But Ben Sasse just told my colleague Leigh Ann Caldwell that part of why this worked out today was because it was Senators in a room, not cameras. And quite frankly, Flake relied on a long-time friendship that he had with Chris Coons. There was a relationship of trust.

MELBER: Right.

HUNT: And Ari, that trust has just been completely broken by the tribal nature of our politics.

MELBER: Kasie Hunt on the scene. And we`ll come back to you as breaking news breaks.

We have been reporting that Flake initially had this statement this morning saying he was supporting Kavanaugh. That would appear to end it. The statement, and this is important as Kasie and I were just discussing, didn`t call for an FBI probe.

So before I turn to our next panelist, I want to show you in more detail what`s so important, that moments after that statement came out from Jeff Flake, these protesters confronting him in the elevator face-to-face.


UNIDENTIFIED FEMALE: I was definitely assaulted. Nobody believed me. I didn`t tell anyone. And you`re telling all women that they don`t matter, that they should just stay quiet because if they tell you what happened to them, you`re going to ignore them. That`s what happened to me. And that`s what you`re telling all women in America.


MELBER: You see him nodding there, listening to someone talking about the ethics of this, what message does it send to women. Now, you`re looking at the political part. These are protests that are changing the way the hallways, the way the movement, the way people feel as they make these decisions. You see the energy there. And I`m going to play it for you. People chanting the political part of the pressure as the Senate moved forward today.


UNIDENTIFIED FEMALE: November is coming. November is coming. November is coming. November is coming.


MELBER: And then a delegation House Democratic women march into the Senate this morning. You`re looking at pictures that they shared, including from one representative, standing in a symbolic silence when the committee was beginning today. You can see them. They`re in the back. Members of the lower body as they call it.

All this culminating, though, in something that honestly no one could have written, no one could have expected. Republican Senator Flake, an avowed Kavanaugh supporter saying even if he supports Kavanaugh, it`s not right to go forward without the FBI probe that Donald Trump had so furiously fought.

As promised, I turn to some people who know a lot about this. Former Senator Barbara Boxer who also hosts the podcast Fight Back. She was part of a group of the House Lawmakers in 1991 demanding that Anita Hill be allowed to simply testify to be heard. And in a kind of symmetry here, House Judiciary Member Congresswoman Val Demings from Florida. She was one of the House Democrats in the hearing today to protest. As well as a reporter who has covered many of these fights from "The Washington Post" Libby Casey.

I could begin anywhere. I would propose starting with Senator Boxer who, as we mentioned, has started much of this. And then turning to Congresswoman Demings and the interplay between the work you both have done. Senator?

BARBARA BOXER, FORMER SENATOR (D), CALIFORNIA: Well, let me just say I`m very proud of the House members who walked over to the Senate 27 years later. Twenty-seven years ago, I was part of a group that did that. We marched up the steps and we confronted our own party because they weren`t going to look at Anita Hill`s charges. And then when they did, it was ugly. It was brutal.

But I think what you saw today, Ari is the beautiful messiness of democracy. You know, Lawrence O`Donnell always says we have a right -- I think it`s Chris or Lawrence, you have a right to petition your government. And those folks in the hall, those women facing Senator Flake in the elevator, looking at him, that`s what we`re supposed to do. We`re supposed to be of, by and for the people.

People across this country, the women and the men who care about us are just so frustrated that women`s complaints about not being taken seriously --

MELBER: And I`m going to come right back to you, Senator.

BOXER: -- wanting to be treated equally are completely ignored. Yes, go ahead.

MELBER: Senator, I promised breaking news. We`re going to listen to Mitch McConnell making an announcement and come right back to you.

BOXER: OK, sure.

SEN. MITCH MCCONNELL (R), KENTUCKY, MAJORITY LEADER: Sensitive, personal matters. And there was testimony and statements from countless personal friends, classmates, coworkers, former clerks, and other associates. So the picture that emerged from all this is clear. Judge Kavanaugh is one of the most qualified and most impressive Supreme Court nominees in the history of our country.

He has excelled at the highest levels of legal scholarship. He holds two degrees from Yale and for years has lectured at the Harvard Law School. He has issued more than 300 legal opinions from what is widely considered the second highest court in the nation. Several have subsequently been cited in the Supreme Court`s own majority opinions.

Along the way, he has built an outstanding reputation within the legal community for his clear and thoughtful writing, his exemplary fair-minded judicial temperament. Judge Kavanaugh`s qualifications have been affirmed by his peers and by renowned legal scholars from across the ideological spectrum.

One self-described Liberal Democrat who advised him at Yale said that Judge Kavanaugh, "Commands wide and deep respect among scholar, lawyers, and jurists." And this praise has been echoed by hundreds of character witnesses who testified before the Senate or written us letters to praise Judge Kavanaugh`s personal character and his integrity in the strongest terms.

The committee has also thoroughly investigated the last-minute allegations that have been brought forward, the evidence that has been produced either fails to corroborate these accusations or in fact supports Judge Kavanaugh`s unequivocal denial. And in some cases, the accusers have been -- have even recanted their baseless allegations.

All in all, this is a nominee who has received what many considered the gold standard of judicial qualification, a rating of unanimously well- qualified from the American Bar Association. So this is a nomination that --

MELBER: We have been listening live to Senator Mitch McConnell. He is on the floor of the Senate defending Brett Kavanaugh and proceeding by unanimous consent. that means with agreement of the entire Senate to debate this nomination. Although as Kasie Hunt reported just moments ago, there will not be a vote in the coming days, there will not be a vote for at least a week.

What we`re going to do is have our producers continue to listen to Senator McConnell if he makes news on the FBI probe or on the vote or on the procedural timing and we`ll bring that to you. What I want to do is, in a sense, return to our regularly scheduled programming tonight.

Senator Boxer who, of course, is a former colleague of Senator McConnell was making a point. So as promised, Senator, if you have a response to anything that Senator McConnell said, we welcome it. But I wanted you to continue your thought.

BOXER: Mitch McConnell has suffered a tremendous loss. It was just the other day he was telling the Evangelicals, "We`re going to plow right through this." Well, the plow is stopped. And everything has stopped for a wonderful reason, what I said before, democracy. Jeff Flake saying, "My goodness, I better listen."

I have to also say Senator Coons and other Democrats today who spoke in that Judiciary Committee magnificently, I think, touched Senator Flake`s heart. So Mitch McConnell never expected it, didn`t want it. They wanted to barrel through. Now they have to pause.

And time is a friend of justice. They do say justice delayed is justice denied but this was a rush to justice. And we need to look at not only, not only Dr. Ford and all the people around that, but we need to look at the others who have come forward with their names and said they`re willing to speak to the FBI.

MELBER: Congresswoman?

REP. VAL DEMINGS (D), FLORIDA: You know I think it`s highly inappropriate for Senator McConnell to be on the floor continuing to talk about how great Judge Kavanaugh is. You know, he might be a great scholar. He might be a great jurist, but he also has multiple allegations of sexual assault against him.

And now that we are going to have an FBI investigation that I`m so happy we`re going have, Senator McConnell needs to hit the pause button and allow the FBI to talk to all victims, all witnesses, and then come back and talk to Judge Kavanaugh. I just think it`s highly inappropriate. What about the women who have spoken out?

And I just highly commend the woman who had the courage to tell her story to Senator Flake on the elevator today, to Dr. Ford who has told her story, other women that have come forward, the amazing women who have been on the Hill protesting. And my faith has always been when I saw the 11 men on the Senate Judiciary not do their job, my hope and faith has always been with the American people. And I have just been proud of the women we`ve seen this week.

MELBER: Well, you just made the point, women protesters, women around the country and men pushing the Republican men on the committee and one of them, Jeff Flake making this move. Libby Casey, listen to Senator Coons detailing his view of someone that he calls a friend across-party lines today.


SEN. CHRIS COONS (D), DELAWARE, JUDICIARY COMMITTEE: Let me simply say this. Senator Flake is a genuine conservative. He has written a book about the conscience of a conservative. He and I do not share a lot of political views. Senator Flake and I share a deep concern for the health of this institution, and what it means to the rest of the world and to our country if we are unable to conduct ourselves respectfully and in a way that hears each other.


MELBER: Libby, I want to ask you a hard question as a narrator, but that`s your job at "The Washington Post." What did today mean as a kind of an unexpected shift from what we saw that I think was painful for so many Americans yesterday?

LIBBY CASEY, REPORTER, THE WASHINGTON POST: Yesterday was all about partisanship and it certainly took that tone as the hearing went on, especially when we saw Lindsey Graham deviate from having the woman prosecutor represent questions for the Republicans when he jumped in. And he was so outraged. And he really echoed Brett Kavanaugh`s outrage. And Brett Kavanaugh had talked about the partisan process and criticizing Democrats.

This brought us all back to how collegial relationships and discussions and some humanity as Kasie Hunt so wisely pointed out can bring people together a little bit. And that is what Senator Flake and Senator Coons are talking about. I think we have to watch people like Senator Lisa Murkowski who may not be politically beholden to the Republican party.

She is having people gather in the major towns from cities of Alaska right now to protest against Brett Kavanaugh`s nomination. Now, those might be the most visible people, but there are also a lot of supporters of Kavanaugh and Republicans who have found this process to be very unfair to him. So she is going to be listening to all those voices.

And while these cool things down a little bit, postponing the vote not only allows the FBI to do an investigation -- just how far it goes, we have to wait and see -- but it also lets the American public settle this in their minds a little bit, and have a little more time to think about and analyze their own thoughts about not just the politics of this, but what their impressions are of Dr. Ford and Judge Kavanaugh and what they had to say.

And I have to tell you, Ari, I interviewed Anita Hill last year and some of the women who supported her back in 1991. Obviously then, Congresswoman Boxer was part of that movement. And Anita Hill was still back home in Oklahoma when those women marched over to the Senate to demand that she be given the chance to testify. And it meant so much to her to be supported by people she didn`t even know.

And one of the few women in the Senate at the time Barbara Mikulski said, "You know the phone started ringing off the hook in our offices, not just in our offices but our male colleagues` offices." And we`re seeing that same thing happening again.

Anita Hill said that she was dismayed because so much of the political Washington reporter club and machine focused on the politics. And for her, this was about her personal story. And I think we`re seeing more people tune in right now to the personal story, as well as what this whole experience had meant for sexual assault survivors.

MELBER: You`re putting your finger on something so important that we wanted to get to when you mentioned Senator Boxer, the feelings and experiences that people have which yes, they have a political impact, but they don`t start with politics. To your point, Senator Boxer, not double but more than double, 201 percent increase in the calls. Not going to Congress, which we`ve been reporting on as well, but the calls going to the National Sexual Assault Hotline. I`m reading from this, 201 percent increase, this is according to RAINN, the Rape, Abuse & Incest National Network.

Senator, where does that fit in because as a culture, it goes to how we deal with this? As to Brett Kavanaugh, and we`re going cover this more in our hour today because people are still understanding exactly what he said in the oath yesterday. He claims Senator that what Dr. Ford reported medically through her therapist, to couples counseling back years ago was the product of "The Clintons", some sort of secret long-running political conspiracy smear. And so I wondered if you could speak to both of those issues.

BOXER: Well, let me just go to that point about him raising the Clintons and the left-wing conspiracy to derail him. What we saw yesterday in Judge Kavanaugh was an angry, belligerent man. Somebody said I could see that man putting his hand over somebody`s mouth. I could see that man losing his cool. It raised a whole issue of judicial temperament. So it`s so different.

And I want to say, yesterday was an exhausting day for anyone who`s ever been attacked, assaulted, or anyone who ever knew someone or their family members, women, men. And as we know, this is an underreported crime because people are afraid to come forward. I hope if there are more people out there that have something to add to this story, this picture of this judge, if they`re willing to come forward and put their name on the line, now is the time --

MELBER: Right.

BOXER: -- to do it. I mean it. Because we can`t have someone sitting on the highest court of the land who is that angry and has the potential to be violent toward women. My god, there are so many other wonderful judges out there and lawyers out there, Democrats, Republicans, men, women. We don`t need to put someone with this cloud over his head on the bench.

MELBER: Senator Boxer, Congresswoman Demings, Libby Casey, thank you for being part of our coverage, for rolling with the breaking news from Mitch McConnell, and we`ll be calling on you for your expertise in the days ahead.

I turn now on our continuing coverage to another important piece, the FBI probe. I`m joined by a Former FBI Senior Official Shawn Henry, as well as returning Attorney Nancy Erika Smith who`s dealt with these kind of cases and investigations in some of their particularities.

I`m going to start with Mr. Henry because of the FBI aspect, which is the center of this. You have a president who said the FBI doesn`t do this. But it`s a president who lies a lot, especially on these issues, who`s not credible. And tonight is one of those nights where that has been exposed.

So even if you`re a Trump supporter and you believe in certain things about Donald Trump, you can`t help but notice if you look at the facts that he reversed himself. Walk us through what that means briefly and what the FBI will do.

SHAWN HENRY, FORMER FBI OFFICIAL: Well, of course, the FBI does this. This is what they`ve been doing for over a hundred years. In the course of these types of investigations, and I`ve actually conducted these investigations before, this is a suitability inquiry. The original investigation was a background investigation. Looking to assess the candidate`s character, his loyalty to the U.S. government, who his associates were, his reputation, et cetera.

He has gone through a couple of these over the last decade or two because he is already a sitting federal judge. In the course of those investigations, once that report is filed, the FBI provides it to the Department of Justice. The Department of Justice then provides to it the White House and the Senate Committee. I`ve done those investigations.

We`ve gotten -- after the reports have been provided, we`ve gotten them back with questions saying we need you to do another interview. We want you to gout and talk to this other neighbor. That is not typical. It`s not regular, but it`s certainly not unusual.

MELBER: Briefly, if done well, could this add to the understanding of the underlying claims?

HENRY: So what we`re talking about now where this is -- the president has said, the White House memo said, it needs to be done limited scope, in a one-week period of time. I think you got to first define what the scope is. What does that mean? Is it limited to the allegations of Dr. Blasey Ford? Is it --

MELBER: But I`m asking you, do you think it could move the ball, factually in a week or not?

HENRY: It certainly can. The FBI is going to put a lot of resources on this.

MELBER: Right. Let me go to you and look at how the judge, who knows more than most people about fact-finding in investigations, how squirrely he was. That`s the nicest way I can put it. Take a look at him in the testimony in the hearing. Look.


BRETT KAVANAUGH, SUPREME COURT NOMINEE: The committee figures out how to ask the questions. `ll do whatever. I`ve been on the phone multiple times with committee counsel. I`ll talk to --

SEN. DICK DURBIN (D), ILLINOIS, MINORITY WHIP: Judge Kavanaugh, will you support an FBI investigation right now?

KAVANAUGH: I will do whatever the committee wants to.

DURBIN: Personally, do you think that`s the best thing for us to do? You won`t answer?


NANCY ERIKA SMITH, REPRESENTED GRETCHEN CARLSON IN SUE AGAINST ROGER AILES: I want to answer. If what we saw yesterday isn`t enough for the Senators to recognize that this man doesn`t belong on the highest court of our nation, I`m shock and I have no confidence in them, even with an FBI investigation.

MELBER: Was it a bad sign that Judge Kavanaugh, who knows as much as you two do about this, wouldn`t just say yes, bring it?

SMITH: Yes, of course. Because he knows that people go to prison for lying to the FBI. Martha Stewart did it. That was her crime, lying to the FBI. Now also, I can`t imagine how you limit this inquiry because he`s lied so much. And I don`t know, when he says he never was a blackout drunk, when he says that he was a choir boy, Renate`s alumni was a compliment and how dare the Senators to say otherwise. The devil`s triangle is a drinking game. I mean the FBI can get on Wikipedia and figure out that those are all lies.

MELBER: Are small lies to the FBI OK or could that endanger his current judgeship?

SMITH: I think he should be impeached. He has no character and the FBI is investigating his character.

HENRY: I think that this does raise another issue. And when you go and start to do this follow-up investigation, the FBI is not going to stop with just an allegation that they`re investigating initially. If they come up with additional information, it`s logical to pursue that.

MELBER: Right.

HENRY: But I think that there is potentially some other issues because the judge made some very declarative statements that he didn`t blackout, he did this, he did that. Those things may be disputed by other people in the course of this investigation. There could potentially be perjury charges.

MELBER: Which is very significant. Shawn Henry and Nancy Erika Smith, thank you both, as part of our breaking coverage.

In 30 seconds, I turn to an expert on the Senate, my colleague Lawrence O`Donnell.


MELBER: Today`s unexpected developments on the Brett Kavanaugh nomination were playing out in real time across the internet, on cable news, and we were hearing rumors something big was happening people didn`t understand. It began behind closed doors and then we learned more than we were even supposed to with this hot mic moment between Senators Feinstein and Grassley.


SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Jeff can force it if he wants to but there`s still no agreement to do that.


MELBER: Force what? Agreement to do what? And lord knows the Senate can be confusing. When the hearing finally resumed, we saw senators struggling themselves on live T.V. to process what was happening. That kind of drama, well, honestly it makes me think of something Lawrence O`Donnell would write for the west wing. He`s a Senate expert himself and I`m happy to say he`s going to join me in a moment, Lawrence, to take a look and watch how this happened.


SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: As a point of personal privilege, I`m going to call on Senator Flake to speak.

SEN. JEFF FLAKE (R), ARIZONA: Let the FBI continue to do an investigation limited in time and scope to the current allegations that are there.

GRASSLEY: Call roll.


FEINSTEIN: On the Nominee, no.

SEN. LINDSEY GRAHAM (R), NORTH CAROLINA: It does it matter what we say here. This will be up to Senator Schumer and Senator McConnell.

SEN. PATRICK LEAHY (D), VERMONT: Mr. Chairman, I want to make sure because this is somewhat unprecedented.

FLAKE: This country is being ripped apart here and we`ve got to make sure that we do -- we due diligence.

GRASSLEY: Because there`s a two-hour rule, we`re adjourned.


MELBER: Lawrence O`Donnell as you see is here, Host of "THE LAST WORD" and a longtime Senate expert, and also at the table, the New York Times Mara Gay who I`m pleased to announce tonight is an MSNBC Contributor. Welcome.

MARA GAY, MSNBC CONTRIBUTOR: Thanks for having me.

MELBER: Thanks for being here. We`ll get to you and you`re also here later in the show so that`s a plug for later. Lawrence, when you look at that drama, it seemed to be the kind that senators struggled to understand. What were you thinking?

LAWRENCE O`DONNELL, MSNBC HOST: Well, when Pat Leahy who`s been in the Senate for decades says it`s unprecedented, it`s unprecedented. I was watching it at home live and live tweeting it. As soon as we got to 9:31, I knew there was a very serious problem because this was a scheduled vote in that committee by Chuck Grassley at 9:30. They were all physically present. Some of them -- so the Senators were out there on the panel and the rest were in the conference room, very large conference room that`s right behind the Chairman`s seat.

And so when 9:31 came, and we`d gone a minute past Grassley`s deadline, there was very clearly a serious problem going on there because they -- when they`re all physically there, you can just call for the vote immediately. And the other thing that was quite striking about it is the room had been silent for about 40 minutes before that. Grassley was rushing speakers at a certain point. He was pushing Cory Booker to finish because I want to let everyone speak before the 9:30 deadline. And then the room went silent and no one is saying anything. And you could you could watch the grim faces of Lindsey Graham, and Orrin Hatch, and Chuck Grassley sitting there helpless doing absolutely nothing. And what that means is there`s something going on in the conference room and the people you see out here cannot help.

In other words, whatever that problem is, that problem will not listen to Chuck Grassley, will not listen to Orrin Hatch, and will not listen to Lindsey Graham. And it turns out it`s Chris Coons, longtime friend of Jeff Flake who`s back there negotiating the formula that we are now we`re going to move under for the next week.

MELBER: Yes. And people like me and sometimes even people like you are accused of dramatizing what`s going on down there.

O`DONNELL: Oh boy, this was --

MELBER: This is the future of the Supreme Court, an open national debate over how to adjudicate these claims of misconduct and it all comes down to as you just put it, those two people who are on the stage. And I`m going to play this. We play this earlier tonight. I want people to see it again with your analysis the hot mic which we don`t usually get, as Feinstein is literally saying that Grassley will agree to what? Take a look.



GRASSLEY: We had to get this all done by 2:00.

FEINSTEIN: Well, is it done? Is Flake`s -- is it going to happen or did you cut off a vote?

GRASSLEY: No, we didn`t have a motion in front of us. This is all a gentleman and women`s agreement.

LEAHY: But I would assume --

FEINSTEN: Gentlemen`s and women`s agreement.

GRASSLEY: But I`m committed to --

FEINSTEIN: Let him say what he`s committed to.


O`DONNELL: What Diane Feinstein was pushing for was that the committee actually formally vote on what would have been a resolution of some kind to support what Jeff Flake was saying. And Chuck Grassley --

MELBER: The FBI probe.

O`DONNELL: Yes, Chuck Grassley wanted to hit that gavel as fast as possible and he used a rule that they never use. It`s the so-called two- hour rule which means a committee cannot stay in business two hours after the Senate floor goes into session, OK. Now, that rule is almost never enforced.

MELBER: Right.

O`DONNELL: And when committees are doing it, they can get permission for an exception, but no one there was going to force him to do that. I`ve never seen a chairman and forced that rule on himself which is what you just saw. He wanted this to be --

MELBER: I mean we have a one-hour rule that "HARDBALL" starts afterwards. You have a one hour rule that goes to Rachel, but this two-hour rules you say was also Chuck Grassley being smart about getting out of a situation where -- and this would have been a shocker with what we saw yesterday, where it seemed that some of the leaders in both parties, at least on the committee not McConnell who we just saw, but Grassley, Flake, and the Democrats said actually we can all live with this for a moment together.

GAY: Well, as someone whose job is to hold public officials responsible, I loved seeing this play out frankly today because I think it gave the American people a chance to really understand the impact of their vote for individual members of Congress. You saw really the human element who these people are that are making these decisions. They`re human, they`re flawed, and they can be held responsible. You know, it`s not just you know, random people we don`t know in the back of a room. These are -- these are people who are elected representatives.

MELBER: Could you speak to what we call process that sometimes sounds boring but can be super important which is there may be people out there in the country who haven`t decided what Brett Kavanaugh did. They`re not sure. And that Jeff Flake took a position that exists on a spectrum between he did something terrible and he did nothing, right? There`s a spectrum. Jeff Flake seem to occupy this rare position in Washington of maybe we need to know more for real about what he did before we can more.

GAY: Right. And you know, what was interesting is that you know, Senator Flake, before he made that decision, he was actually confronted earlier in the day by two women --

MELBER: Which we`ve been -- we showed some of that.

GAY: Exactly. Gallagher. and I believe Ana Maria Archila -- I apologize if I didn`t get that last name correct -- but these women confronted him in an elevator on camera and they said, you know, we told you about our sexual assaults and how are you still going to put a man who`s accused of sexual assault on the Supreme Court? And I think that was such a human moment and you could see Jeff Flake when he was actually talking later. He was sweating.

I mean, this man was under a lot of pressure and I think you know, there are varying views about whether he did the right thing or not. But I do think it did -- it was a small human moment of someone who it appeared was trying to do the right thing. We`ll see how this goes from here.

O`DONNELL: Well, I have no doubt Jeff Flake was trying to do the right thing and I have reason to doubt that there`s no other Republican senator who would have done that. You know, they have senators-only elevators in those buildings so that the Senators can walk on two elevators and never be bothered by people like Maria Gallagher who kept that door open and kept talking to him for the longest time.

And remember you saw her saying to him, look me in the eye, look me in the eye when I`m talking to you. And what did Jeff Flake do, he looked her in the eye. Now, I don`t know if there`s another Republican senator who just would have pressed clothes on those senator only elevator doors and just closed that door. He looked her in the eye. He took that in. And the reason that the United States Senate is so unique is the power of one.

If you can get one United States Senator or one United States State Senator is moved for whatever reason to stand up, that Senator can usually change what`s happening that day. The power of one is extraordinary in the Senate. What we also saw was the power of that one citizens voice at the elevator door, two of them in this case actually, but they got through to a United States Senator proving the value of physically being --

MELBER: Right.

O`DONNELL: Proving the value of every contact that every citizens ever tried to make with a senator.

MELBER: I think both of you are speaking to what may be some kind of silver lining here. The people have been so rightfully outraged and sad over the course of yesterday in many aspects of this, but the fact that a lot of things are dispiriting doesn`t mean nothing works if as you put it one citizen, one elected official can actually move everything and no one knows anyone predicting where it goes next is maybe a grand icing but doesn`t really know. I want to -- I want to say you come back later in the hour. That`s a preview for us. I have a preview for you, sir.

O`DONNELL: You know, I have more to say about this.

MELBER: Do you.

O`DONNELL: I`m going to -- I`m going to do --

MELBER: You have an hour --

O`DONNELL: I`m going to do it at 10 p.m.

MELBER: You heard it here. Lawrence O`Donnell live tonight 10:00 p.m. Eastern, "THE LAST WORD" reclaiming his time at 10:000 p.m. and I`ll be watching. Coming up, I want to say something else. I have it myself in covering this story talk a lot about Brett Kavanaugh, the man. Ahead I`m going to do that. I`m going to tell you what I think was revealed yesterday by his words and his actions. That`s next.


MELBER: Tonight the controversial confirmation process for Brett Kavanaugh took another turn. Republicans folding under pressure ordering a one-week FBI review of the allegations against him. He`s denied sexual assault allegations from yesterday`s unusual hearing and emotional angry combative and at times indignant performance that as I`ve mentioned tonight left our nation in sad discussions and appraisals through the evening and well into today.

These hearings were important and just because they were frustrating and often inadequate to address the significant issues they raised. I don`t think that means the hearings were not revealing. And a messy revealing process can at times be more useful for vetting than a neat and choreographed one. So in addition to weighing the allegations against Kavanaugh, I`ll say more about that in a moment, the U.S. Senate, and this country also has a lot more information to weigh about Kavanaugh now.

You know, judges always start with precedent, so in vetting this judge let`s begin with the precedent for these kinds of hearings. Because if you go back across ideological lines, the precedent is for nominees to insist in these hearings that they`re neutral and fair, that they`re blank slate so don`t let politics or policy or opinion impact their work. They talk about balls and strikes and following the rule of law.


NEIL GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT, UNITED STATES: My job isn`t to write the laws, it`s to apply the laws, and that enough is enough for a day`s work and it`s enough for a life`s work.

RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE SUPREME COURT, UNITED STATES: My approach I believe is neither liberal nor conservative. It is rooted in the place of the judiciary, of judges in our democratic society.

JOHN ROBERTS, ASSOCIATE JUSTICE OF THE SUPREME COURT, UNITED STATES: The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That`s a commitment all judges make when they take a judicial oath.


MELBER: When they take the judicial oath. And here`s what`s revealing tonight and probably bad for Kavanaugh. Until yesterday he was using that same playbook, but then he tossed it out. The mask fell. We got a window into how he thinks and acts under pressure and on legal and evidentiary issues that involve himself. So let`s look at this contrast of before and after, and please keep in mind you were watching a sitting federal judge who took that oath, who has an obligation to rule above politics and who went from disclaiming politics to blasting a political party yesterday and darkly alleging conspiracy theories and political hit jobs that he can`t prove.

So I`m going to show you this now, and when you watch the contrast keep in mind you`re about to see some of the most direct partisan language any Supreme Court nominee has ever used in a confirmation hearing in the modern era.


BRETT KAVANAUGH, NOMINEE, SUPREME COURT JUSTICE: I`m a judge, I`m not making the policy decision. My job is to decide whether that policy is consistent with law.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades.

I take very seriously your broader point about maintaining confidence of all the American people in the integrity and impartiality and independence of the Supreme Court.

This whole two-week effort has been a calculated and orchestrated political hit, revenge on behalf of the Clintons.


MELBER: On behalf of the Clintons. If there`s evidence that Bill and Hillary Clinton or their staff are involved in long-ago sexual assault allegations against Kavanaugh, Kavanaugh hasn`t released it and neither have his people. Which makes that claim right there not only dubious but totally questionable for a judge testifying under oath and who has to rule on disputes that involve yes, Trump and the Clintons and people in both parties.

A new side of Kavanaugh was revealed there. Someone who seems to think it reasonable to channel a Hannity or Trump style counter-attack on the Clintons anytime he`s pressed on his own conduct. Kavanaugh is a federal judge today, a place he got after being confirmed when we saw a different man back in 2006.


KAVANAUGH: I will in -- at all times maintain the absolute independence of the judiciary which in my judgment is the crown jewel of our constitutional democracy.


MELBER: At all times includes yesterday. And whether you`re impressed with Kavanaugh`s credentials or not, whether you think his rulings are solid or not and people disagree, when you see these direct attacks on Democrats yesterday, you know he is not maintaining the commitment he made. He has departed from what we can call tonight old Kavanaugh who talked about "the absolute Independence of the judiciary." So what you`re seeing here violates not only his standard but is unbecoming for any sitting federal judge.


KAVANAUGH: You`re asking about you know, blackout. I don`t know, have you?

SEN. AMY KLOBUCHAR (D), MINNESOTA: Could you answer the question, Judge, I just -- to you, that`s not happened? Is that your answer.

KAVANAUGH: Yes, and I`m curious if you have.

SEN. DICK DURBIN (D), ILLINOIS: Personally do you think that`s the best thing for us to do? You won`t answer?

KAVANAUGH: And whoever wants -- you know whatever the committee decides, you know, I`m all in immediately. I`m all in immediately.


MELBER: Under the Constitution that judges like Kavanaugh swear to uphold, it is the U.S. Senate that advises and consents on judicial nominations which means yesterday you were witnessing the Senate as the judge of his promotion. And as you may have noticed, it looked like Kavanaugh the judge struggled to respect the judge in that process whether he agrees with the process or not.

So we`re learning a lot about this nominee and what he really thinks and how much he`s able to actually be independent of politics and whom he blames, the Clintons, the Democrats for the vetting that he knew was coming. So this is all now a public record and that`s apart from any conclusions that the FBI will help investigate. The claims of sexual misconduct, against Kavanaugh by Dr. Ford and others. She also testified under oath yesterday under a different kind of strain than he was facing and as many noticed, with a very different approach.


CHRISTINE BLASEY FORD, ACCUSER OF BRETT KAVANAUGH: I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most and this had the most lasting impact on my life. It was hard for me to breathe and I thought that Brett was accidentally going to kill me.


The U.S. Senate`s job is to weigh those claims along with Kavanaugh`s wider record. The FBI`s job courtesy of the breaking news today is to give the U.S. Senate nonpartisan information to help adjudicate those claims. What the FBI cannot help with and what has at times been obscured by some of the noise is how much of that wider record looks different given how much Kavanaugh revealed about himself yesterday.

Now, I don`t think we know for a fact if he perjured himself but I think we do know something else. He violated an important legal standard one you are surely familiar with. He did not tell the whole truth and nothing but the truth.


MELBER: Our continuing coverage of this fast-moving news night continues right now. Brett Kavanaugh facing an FBI probe, one that Donald Trump had been fighting. And I want to bring in a special range of guests for a very special Friday night panel. Mara Gay from the New York Times who I mentioned becomes an MSNBC Contributor today, Gary Shteyngart a Russian- American Novelist whose critical of Donald Trump, and I should mention his new book is Lake Success, and Margaret Judson a journalist and Actor who blended those experiences in the HBO series Newsroom, she`s now on the HBO show The Deuce and also recently discussed how #MeToo is changing how women are treated in the workplace in the New York Times` pop-ed.

Thanks to all of you for being here. I want to start with you because you`ve been writing about some of this. What do you think when you look at this week`s news?

MARGARET JUDSON, ACTOR AND JOURNALIST: Well, first of all, I was gravely disappointed with the way Jeff Flake voted today. He really dropped the ball when he has promised over and over that he would stand up, he truly copped out.

MELBER: You don`t think he went far enough?

JUDSON: Not at all. Absolutely not. And I think in that room just to dovetail off of that, the white male privilege was palpable during the Kavanaugh hearings yesterday. I couldn`t believe the way that he went off about how he`s worked hard in school and played sports and so now somehow that makes him -- it deserve a spot on the as a Supreme Court justice. That was truly disappointing and if they`re nothing else that that didn`t make Jeff Flake pause, I I`m confused why he would vote that way.

MELBER: And you`re speaking to his temperament which is something that we talk a lot about considering that he judges other people`s fates?

GAY: Oh I couldn`t agree more. I mean essentially arguing I couldn`t have done this because I was accepted to Yale? How --

JUDSON: Yes, how you went to prep school.

GAY: Right. How --

JUDSON: You think you did that yourself?

GAY: Right.

JUDSON: He started from prep school.

GAY: That`s right. And also I just -- you know, extremely offensive in so many ways to women, to Dr. Ford and you know to boys like Kalief Browder who`s spent years in jail in Rikers Island for essentially nothing.

MELBER: You`re pointing out something that hangs over all this which is so many people have lost far more based on far less.

GAY: That`s right. I mean, actually, I believe that there was a -- the father of a Parkland victim who went up to Judge Kavanaugh and said, actually no, your life hasn`t been ruined. My life has been ruined because of the lack of gun control from folks like you. And I just think his sense of perspective -- he came to that hearing yesterday as though this was his birthright.


MELBER: Margaret, I want to play for you because you`re talking about this aspect the way that we`ve had the wider conversation this week amidst the pain. Chris Wallace of Fox News not known as a -- as a revolutionary feminist but did something that might be harder for him than some to really say, look, my daughters are coming to me. I need to now fold this into my work. So this was unusual. Take a look.


CHRIS WALLACE, HOST, FOX NEWS CHANNEL: Two of my daughters have told me stories that I had never heard before about things that happen to them in high school and haven`t told their parents. I don`t know if they`ve told their friends. Certainly, they never reported it to police that there are teenage girls who don`t tell stories to a lot of people and then it comes up. And I don`t think we can disregard that. I don`t think we can disregard Christine Blasey Ford and the seriousness of this.


JUDSON: Ari, I`m so glad you brought up that clip because what I wrote about in The Times was how now on sets in Hollywood their intimacy directors look just like there would be a stunt director. When somebody is vulnerable, there`s somebody there to protect them and look over them. In this moment, we are watching Hollywood take the high ground over the United States government. That`s a huge red flag. That`s not how this should work. The government should be holding the higher moral standard, but Hollywood is.

MELBER: We`ve been talking about how you can`t predict and write what has been going on in the last few days.


MELBER: Or years. What do you think of the Republicans on this Judiciary Committee?

SHTEYNGART: Well, I mean this is all -- I found myself first of all, as a writer, I try to make the reader shed a tear. I`ve had myself crying yesterday during Dr. Ford`s testimony. I couldn`t -- anyone who suffered any kind of trauma understands what she`s talking about. And as a scientist, when she says 100 percent, I understand that it means 100 percent. So that was absolutely moving.

But when I saw Kavanagh I couldn`t create a character like that. That we a base of toxic masculinity and anger and entitlement, you couldn`t come up with it. It was too much.

JUDSON: It was sort of like bad casting. Like this is the guy who you decided to put in front of people to seemed reasonable and to make the most important decisions in the land. This guy shouldn`t be allowed to drive a car. He`s this volatile, he`s this easily provoked, and then you`re going to have him make the most important decisions in the country? That`s incredible.

GAY: No, I mean, I agree. I think he`s unfit. And if you can -- I don`t think we can put any of this aside and nor should we. But there are other issues that you pointed out, Ari, just a few minutes ago and another one too that we saw and the board is, listen, I mean, he was misleading yesterday.

MELBER: At the least.

GAY: At the least, was not telling the whole truth when he was talking for example about you know, other witnesses to the event supposedly feuding I think was the word he use. Refuting Dr. Blasey Ford`s testimony. That`s not quite what happened yesterday.

JUDSON: It really struck me too the way that he couldn`t even define and admit that he was an immature teenager and what those words meant.

MELBER: And you -- and you both just hit on something which is his job is to be fair and find facts and it`s always easier when it doesn`t affect you and it`s harder when it does. What you just said that he referred to someone saying I don`t remember whether this happened, who by the way wrote a book about alcoholism which the person struggle with, but it makes them less credible for their memories, and he referred to that under oath as that refutes it which is as you just point out directly false.

I want to play the Lindsey Graham of it all because that was the twilight zone, a few good men. It was like he thought he had the closing speech and a few good men, but for a lot of the country he was in a different movie. And I do think there is room and I`ve said this and sometimes it`s unpopular to see. I think there is room to be very careful about how slow we go on finding facts. I think Dr. Ford was highly credible but before we heard her, we didn`t know that yet.

I think the fact that she spoke under oath is important. Before she was under oath, we didn`t know what she would sound like under oath. So that`s a process that takes time. But Lindsey Graham goes on the other extreme and I want you to analyze him as a character giving his potential (INAUDIBLE). I don`t know which book of yours he`d fit into but take a look -- take a look at -- (INAUDIBLE). Lindsey Graham, here we go.


GRAHAM: If you wanted an FBI investigation, you could have come to us. What you want to do is destroy this guy`s life, hold this seat open, and hope you win in 2020. You said that. This is the most unethical sham since I`ve been in politics. And if you really wanted to know the truth you sure as hell wouldn`t have done what you`ve done to this guy.


SHTEYNGART: Look, I was -- I grew up in the Soviet Union. He reminds me of Khrushchev. All he needs to do was to take off his shoe and start banging against the table. It was outrageous, you know, and it makes me think what is the future of the GOP, you know, after events like this? Like what -- did they have a future as a mainstream party? I mean, what is the next generation of women, people of color is anyone going to you know have any -- or is this going to become like Germany`s alternative for Deutschland the far-right party. You know, is it going to be focused on I don`t know, you know, Civil War --


MELBER: Yes, you`re sponsoring ethnic parties that repeal a grievance. That`s a big part of it. I have to fit in as I mentioned early in the show our one-hour rule which is "HARDBALL" starts soon. My special thanks to Mara, Gary, and Margaret. Tomorrow, I should tell you the weekend, we`ll be live in Central Park with performances by Janet Jackson, Cardi B, Janelle Monae. MSNBC will have news coverage for the day and coverage of global citizen through the night. I`ll be a part of it. It starts at Saturday 3:00 p.m. Eastern and I`ll be there with Chris Hayes, Joy Reid and many more. That is as I mentioned the end of THE BEAT. "HARDBALL" is up next.


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