Show: THE BEAT WITH ARI MELBER Date: November 7, 2018 Guest: John Flannery, Gene Rossi, Betsy Woodruff, Joaquin Castro, Michael Beschloss, John Carlin, Michael Eric Dyson, Neal Katyal, Ryan Costello
CHUCK TODD, MSNBC HOST: That`s all we have for tonight. We will be back tomorrow with more MTP DAILY.
"THE BEAT WITH ARI MELBER" starts right now.
ARI MELBER, MSNBC HOST: Breaking news tonight, President Trump firing Attorney General Jeff Sessions late today and installing a Trump loyalist as Bob Mueller`s new boss. We have this story for you from several angles tonight.
The two biggest stories here are licked. Donald Trump removing Jeff Sessions and naming an acting attorney general who`s talked up limiting and defunding the Mueller probe while Democrats are, of course, taking the gavel and subpoena power after this blue wave which was even larger than their 2016 margin. Voters backed Democrats by several point margin statewide in yesterday`s midterms.
Now Donald Trump has fired Sessions. We know that because Sessions made it clear in his letter, that is new out tonight, saying that Trump demanded he leaves despite what he listed as several accomplishments. Now, here is a new video we just got in our newsroom. You are looking at Jeff Sessions leaving the Department of Justice for the very last time to a round of applause.
(BEGIN VIDEO CLIP)
JEFF SESSIONS, FORMER ATTORNEY GENERAL: Thank you all.
(END VIDEO CLIP)
MELBER: Here`s the context. Jeff Sessions now joins a long list of the top law enforcement officials ousted in just the first two years of the Trump administration. That includes those top fired FBI officials. Now, look at that in contrast to Donald Trump`s own top aides the president has watched guilty pleas and flipping by his long-time lawyer, former campaign chair and deputy chair, and national security adviser among others.
Tonight, I can tell you the facts reveal a president so intent on taking control of the investigation into his own campaign in White House that he is willing to risk all this blowback and all the guilty looking inferences that come with this kind of move right after the election. And that raises the question tonight.
It`s not a question we like to ask. But it`s the question of whether Donald Trump has reason to believe that the Mueller probe was not going to stop at the aides who already confessed that you just saw on your screen, that Donald Trump believes for some reason there may be evidence out there that would keep this probe barreling towards his family or towards the president himself.
The idea that the president wants the attorney general to be his personal protector would make any president sound bad. It was part of what brought down Nixon. But with this president, I want to be clear tonight, that very negative view of Trump comes from Trump himself. He publicly admitted the reason he didn`t like Sessions was that Jeff Sessions followed the rules and recused on the Russia probe when Trump wanted him to defend Trump.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I am disappointed in the attorney general. He should not have recused himself almost immediately after he took office. And if he was going to recuse himself, he should have told me prior to taking office. And I would have quite simply picked somebody else.
Jeff Sessions recused himself, which he shouldn`t have done or he should have told me. For him to have taken the job and for him to immediately have recused himself is a disgrace.
(END VIDEO CLIP)
MELBER: Just listen to those words. They are newly relevant with this firing tonight. Donald Trump thought the disgrace was Jeff Sessions following the rules and not interfering in the probe. And there is something else disturbing tonight.
I`m going to show you the new replacement. Matthew Whitaker was chief of staff at the DOJ. He will now be acting attorney general until a new attorney general`s name and the Senate has to confirm that person. But right now tonight, you are looking at Bob Mueller`s new boss. And this is what he said about trying to limit the Mueller probe.
(BEGIN VIDEO CLIP)
MATTHEW WHITAKER, ACTING ATTORNEY GENERAL: Bob Mueller and his small U.S. attorney`s office as I`ve heard it described today does go beyond the 2016 election and get into Trump Organization finances unrelated to the 2016 election and really unrelated to Russian coordination if it even exists. I think that would be crossing a red line.
(END VIDEO CLIP)
MELBER: Crossing a red line. Whitaker describing things that we know Bob Mueller did and that Rosenstein even approved, like looking at Manafort`s now admitted crimes that weren`t directly related in 2016. You are looking at your new attorney general and he`s also discussed in public -- and tonight, Democrats are saying this is the reason he should also recuse. He`s discussed a blueprint of sorts to further oversee or interfere with, yes, the Mueller investigation.
(BEGIN VIDEO CLIP)
WHITAKER: I can see a scenario where Jeff Sessions is replaced with a recess appointment and that attorney general doesn`t fire Bob Mueller but he just reduces the budget so low that his investigation grinds to absolutely almost a halt.
(END VIDEO CLIP)
MELBER: Grinds to a halt. One of the men on your screen was on your screen a moment ago because John Flannery is a former federal prosecutor who is in some of those discussions that are now at the white hot center of this debate. Gene Rossi, a former colleague of Rod Rosenstein at the DOJ who has joined us on THE BEAT before. And another ace reporter who`s been all over this story from the start Betsy Woodruff.
Very honored to have each of you here given the important issue before the nation tonight. Later in the show, we`ll also discuss those elections which have implications on the subpoena power.
John, is this firing in your view inappropriate? Is there enough evidence to say that in itself becomes part of the obstruction probe?
JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Absolutely. I have no doubt about it. I mean we are on notice from everything Trump had said before about what he wanted to do with the attorney general. And the principle objection he continually makes is that he didn`t recuse himself and so that he could handle the investigation. He expected his attorney general to conduct an obstruction of the investigation by getting there and staying in that position.
How can we think he`s going to do anything else with his chief of staff when, normally, the assistant attorney general or the deputy attorney general would become the attorney general acting in the interim --
MELBER: When you spent time with him and what we just showed a little bit on camera, did you get the view that he would be a non-partisan toward the DOJ or that he had a point of view or a political agenda regarding Mueller and the probe?
FLANNERY: He`s a very nice guy with a very strong partisan taint, shall we say?
MELBER: Is he too partisan to be Bob Mueller`s boss, in your view?
FLANNERY: Absolutely, absolutely. And think about it. He`s in a position where he starts with the conflict, was chosen after those statements by the justice department to be in a position he`s in at a time when we have the president saying that Sessions wasn`t doing what he needed to do. There has been a meeting between the president and Whitaker before this appointment was made after they got rid of Sessions today.
So one of the first questions is, what did you say? He starts with a conflict. And as for the president doing this, what the president is doing, it`s not like he`s appointing people who doesn`t have an interest. He has an interest. His family has an interest. There`s an ongoing interest.
MELBER: Sure. Let me bring in -- I`m coming back to you. Let me bring in Gene. Same question, Gene.
GENE ROSSI, FORMER FEDERAL PROSECUTOR: OK. Thank you. I agree with John to a certain extent. This would be an overt act for an obstruction of justice charge. However, I tried a couple of such cases. I`ve had acquittals. What you need is a few more overt acts, the Comey firing and other things. I do want to say this, Ari.
MELBER: Let me pause you on the Comey firing because we`re on the same lines. Americans are watching this. We just had an election, the president fires the attorney general. It feels like a big moment. Let`s remember, the Comey firing, Gene.
I`m going to put up on the screen the incriminating language from the president at the time. I appreciate you informing me on three separate occasions I am not under investigation. Donald Trump linked the firing of the top guy of the FBI to his own investigation. Now he`s firing the top guy at the DOJ and a lot of people are saying on the Hill tonight it`s also because of his own investigation. If that`s true, is that wrong?
ROSSI: Let me tell you something. The best witness for a prosecution in a case against Donald Trump is the words of Donald Trump. And his acts speak to themselves. I got to say this. I think this is a huge game changer. It`s a huge deal for two reasons.
One, if Whitaker smothers the Mueller investigation, that is going to cause a second action, a flurry, a flurry of subpoenas from the House committee to have him explain his actions. And, number two, also to say, what did the president of the United States say to you when he asked you to be acting attorney general? And that conversation could be a death knell for the president of the United States.
FLANNERY: But the problem is --
MELBER: Let me go to Betsy and then back to John. Betsy.
BETSY WOODRUFF: One thing that`s important to remember looking forward on this question, my colleague and I have been calling sources in the Justice Department for the last several hours from the moment this news broke. And one thing that we`ve heard from multiple people is that Matt Whitaker and Rod Rosenstein have a very tense relationship.
These two men do not seem to get along. We`re not clear yet when this tension began or what particular factors have fed into it. But this is not a happy relationship between these two men who are now the top two officials at the Justice Department. And I don`t anticipate that Whitaker now ascending to the highest level of the DOJ is going to be a force for any particular stability.
The other thing that`s important to remember here looking forward on the Mueller investigation is that there have been numerous reports that Whitaker would be in line for a Senate-confirmed position if Trump were to move forward with reshuffling all of DOJ leadership. If that`s going to happen, then Whitaker, of course, needs to make sure that any decisions he makes in the next few days or weeks as he`s acting attorney general don`t scuttle his chances at getting through Senate confirmation.
MELBER: Right. And there is oversight there.
WOODRUFF: So I don`t -- exactly. I don`t anticipate that Whitaker will take any dramatic steps related to the Mueller investigation until or unless Trump moves forward with reorganizing the top of DOJ and bringing in people with the power and the clout and the job security that comes with being Senate confirmed.
MELBER: Right. But this goes to the heart of it, John, which is Trump is moving away from the people that he thinks protect Mueller like Rod Rosenstein and towards people that he thinks will be tougher. As for that tension Betsy just articulated, take a listen to Whitaker on Rosenstein.
(BEGIN VIDEO CLIP)
WHITAKER: I think what ultimately the president is going to start doing is putting pressure on Rod Rosenstein, who is in charge of this investigation, do something a little more stage crafty than the blunt instrument of firing the attorney general and trying to replace him.
(END VIDEO CLIP)
FLANNERY: Well, you know, Whitaker, it seems to me to be the new Bourque. We have done to this justice department what happened when we had Nixon and we had Mitchell and we had Klein destroy the reputation for law and justice in the department. This is such an attack on the justice department.
And what is it like? It`s like a criminal running away. He realizes that if he waits too long, the House may have Democrats who can stop him. So this is going to be a midnight raid and I wouldn`t be surprised if in the next day or so we see the Rosenstein thing.
But I think if you look at the original order, they have problems as a matter of law getting around that order. And Mueller is no fool. You can be sure he`s not sitting on his hands right now. He is dealing with what he anticipates will be the misconduct of this organized crime syndicate that passes for this administration.
MELBER: Tough words. Gene, I want the viewers to understand who the new acting attorney general is. He is someone who against what most legal experts that I know think and certainly what most political operatives think, he said publicly, "No problem trying to get foreign help" which, of course, any lawyer knows is a violation, a likely violation of campaign finance act. Take a look.
(BEGIN VIDEO CLIP)
WHITAKER: To suggest that there is a conspiracy here, I mean you would always take that meeting. If you have somebody that you trust that is saying you need to meet with this individual because they have information about your opponent, you would take that meeting. I have run for public office twice. And you certainly want to have any advantage, any legal advantage you can.
(END VIDEO CLIP)
MELBER: You hear that at the end? And he did run for office as a Republican in Iowa which is no problem in and of itself. But Gene, do you agree with his claim that a lawyer, a former prosecutor running for office would definitely take a meeting with foreign officials when you know if they give you anything of value, I mean a thousand bucks let alone anything else they were offering, that itself is illegal?
ROSSI: He`s an idiot. Here`s why. I ran for public office. I ran for Lieutenant Governor of Virginia. I got my tail kicked. And if anybody from Russia offered to give me information to beat my two opponents, I would have said I`m going to call the FBI. You are a crook.
Let me tell you this right now. I am so disappointed in the U.S. Department of Justice right now because the morale is being decimated. I felt sorry for Jeff Sessions just now when he walked out of that building. I worked in that building for five, six years on the 4th floor. And when Gonzalez was the attorney general, I can tell you, we had to get Lysol to clean that place out after he left. And that`s why my heart bleeds for the Department of Justice where I worked for almost 30 years.
MELBER: And Betsy, I am about to be joined by a Democratic member of Congress on this, what does your reporting tell you about where this fight goes with the Hill? What are the big questions for these Democrats who now are going to have power?
WOODRUFF: I would say one of the top questions is whether Republicans come together and decide to push back against any efforts on the part of the justice department to push out Mueller and, of course, the key question for House Democrats is how prepared is a Special Chairman Jerry Nadler who heads the House Judiciary Committee or who will head it on January 3rd, how prepared is Nadler to issue subpoenas? We know he`s going to send lots of interviewer request. We know it`s likely that he will ask for DOJ and White House officials to voluntarily come in and testify before his committee. But is he willing to sort of bring the muscle to the fight when it comes to actually pushing for this official to testify?
WOODRUFF: Part of the reason that`s important is that because, under Republican control, White House officials took a very expansive view of executive privilege especially as it related to the House Intelligence in this Russia investigation. They claimed executive privilege for conversations that happened before Trump`s inauguration. They claimed executive privilege for conversations the president was involved in and Chairman Nunez of the Intelligence Committee who was a Republican let them get away with it.
So the question for Nadler and for other congressional Democrats is, are they going to actually enforce the more traditional and the more narrow understanding of what kind of privilege actually comes with being the president or with working directly with the president?
MELBER: Betsy, you are laying out some of the key questions as you often do. Everyone stay with me. As promised, I now bring in a current member of Congress, Joaquin Castro from Texas. He serves on the Intelligence Committee which connects with so much of this.
First of all, thanks for joining us on a busy night.
REP. JOAQUIN CASTRO (D-TX), INTELLIGENCE COMMITTEE: Yes. No, thanks for having me.
MELBER: Second of all, Congressman, before we get to the elections, I know you and your folks have taken some victory laps with a pretty big net gain in the House. When you look at the firing of Jeff Sessions tonight, do you see it as already linked to the Mueller probe inappropriate or is it too early in your view as a sitting member of Congress to determine that?
CASTRO: Well, it certainly looks that way because of how James Comey was handled, McCabe, Rosenstein so far by the president. But it really speaks to the need for the Congress to act in a bipartisan way and actually pass legislation that protects Bob Mueller and protects his investigation.
MELBER: But -- I`m going to cut in because you and I, we`ve talked about this before. That makes a lot of sense. The Republicans have moved further away from that. Lindsey Graham was talking about, it would be bad to fire Sessions. Then as you know, he was supporting it. So if you don`t have that -- and there are no signs, sir, unless you have news to break for us. There are no signs it`s going in that direction.
So what are you going to do? And Jerry Nadler who Betsy mentions and I spoke to last night, he says, "We`ll be issuing subpoenas when warranted." Is this an issue that`s warranted? Are you going to have to bring this new acting attorney general before the House and figure out was he asked for a loyalty oath?
CASTRO: Yes. Well, I think that it would be fair for the House Judiciary Committee to bring the new acting attorney general in front of them regardless. Because every time you get a person in office, that`s what you do is bring them before the committee and basically grill them and ask them questions. So I would expect that that`s going to happen and hopefully, it won`t take a subpoena to get the answers that Jerry needs and the committee needs. But if that`s what it takes, then that`s what it takes.
MELBER: When you look at this in the context of last night, do you think that the president was on his way to doing this regardless? Do you think this relates to his fears about what Mueller may have in store or what you guys may have in store? And how would you ballpark last night`s victory? A ripple of wave, a big wave?
CASTRO: Yes, I think it was a strong victory for Democrats. We took back the House for the first time since waiting in 2016, won a lot of state legislative races and governor`s races. And so I thought that it was a strong night. We saw other states like Texas and Florida get more competitive than they have been in a while. So that was a very promising thing.
With respect to what happens with the Judiciary Committee and with this new acting attorney general, I think that most of all, we`ve got to make sure that we protect that investigation. And Mitt Romney and Lamar Alexander, I believe, have made promising comments today. Now, there is a difference between Republicans saying something and then actually acting upon it.
CASTRO: But, hopefully, they will actually turn that into legislation with the new blood that`s coming into both the Senate and the House.
MELBER: Congressman Castro, Gene Rossi, Betsy Woodruff, and John Flannery on a big news tonight, thanks to each of you.
Coming up, is this Donald Trump`s version of a Nixon style Saturday night massacre but done more slowly? Historian Michael Beschloss is here to walk us through all of this.
Plus, Mueller`s response to this news. We have a very special guest, his former chief of staff on what past president shows us about how Mueller is dealing with this right now tonight. And can Trump`s new pick legally oversee this probe? We also have a special guest with a breaking news. I just got him booked. The man who literally wrote the rules to this special counsel, Neal Katyal says there may be limits tonight. He joins me on this special edition, breaking news coverage on THE BEAT.
I`m Ari Melber. We`ll be right back.
MELBER: Welcome back. We are about to speak with Historian Michael Beschloss as mentioned. I want to clear one thing from our earlier segment. We showed a graphic regarding James Baker, an employee of the FBI but the graphic had the wrong James Baker, a former Bush administration official. It was the wrong photograph. We regret the error.
Now we turn to this breaking news, Donald Trump firing Attorney General Jeff Sessions. A dramatic escalation of Trump`s assault on the law and order machinery of our government, particularly those who are doing investigations of Trump himself. In fact, earlier this year I was reporting on how Donald Trump could pursue a massacre in the making by slowly ousting key law enforcement officials. That`s a reference, of course, to Richard Nixon`s iconic and very controversial firings of the people investigating Watergate.
(BEGIN VIDEO CLIP)
BRIAN WILLIAMS, ANCHOR, NBC NEWS: The country tonight is in the midst of what may be the most serious constitutional crisis in its history.
UNIDENTIFIED MALE: An investigator appointed to investigate scandals was fired because he insisted on investigating scandals.
(END VIDEO CLIP)
MELBER: I am joined by NBC Presidential Historian Michael Beschloss. Thanks for being here tonight.
MICHAEL BESCHLOSS, PRESIDENTIAL HISTORIAN: My pleasure.
MELBER: Midterm election. Firing of Jeff Sessions. Replaced by what looks like a loyalist who is on the record for narrowing this probe. Where does this rank in comparison to Nixon?
BESCHLOSS: Ari, if this is going the way it looks, this is 10 times worse than Nixon because, you know, let`s look if this leads to let`s say the firing of Robert Mueller or the substantial limiting of this investigation 10 times worse than Nixon because let`s look at what Donald Trump has done here.
Let`s first look at the Supreme Court. He now has a five-justice majority on the Supreme Court. The fifth justice is the one person of all those people on that federal society list that has the most extreme views of permitting a president not to be investigated, not to be indicted, not to be subpoenaed, used pardons to help himself. There is no doubt in my mind with the reason why Brett Kavanaugh is on the court tonight is because Donald Trump wanted him to be reliable if a Trump case could come to the court.
And remember, that was a vacancy that Donald Trump created by encouraging Anthony Kennedy maybe to resign from the court earlier than expected so that it would be Brett Kavanaugh in this position tonight and not Anthony Kennedy who might have been a little bit more in a position to stand up to Donald Trump.
And then on the other side, this is a president who now looks as if he`s very directly not only firing the attorney general and putting in someone to replace him, who is by most accounts, by most accounts, not terribly qualified. By some accounts, a political hack. By almost all accounts, someone who can be relied upon to be completely obedient to President Trump.
And then the other thing that makes it worse than Nixon is that you know, this is not just about misdeeds within our system. Nixon obstructed justice, told the FBI -- told the CIA to tell the FBI not to investigate Watergate. The case we`re dealing with is a possible covert relationship between an American president and a hostile foreign power. That`s way beyond Watergate.
MELBER: You just said could be 10 times worse than Nixon. When you look at the reasoning, James Comey removed what the president said on the record in the letter firing him.
MELBER: This was, hey, you cleared me of wrongdoing. And then they had to clear up the Rod Rosenstein and now Jeff Sessions has been removed, had a cover story that was false. That hasn`t been resolved.
BESCHLOSS: Right. Correct.
MELBER: Don McGahn has left the White House, says he was asked to fire Mueller. Jeff Sessions now out for that reason. All the evidence coming in says that the new person is in also for an elicit reason as you just said to be a loyalist.
BESCHLOSS: And also someone who is already prejudiced and should recuse himself. That article that Whitaker wrote on cnn.com saying that the Mueller investigation was illegitimate, he`s got a view in advance. You know, that`s not someone who`s --
MELBER: You think it rises that bar that he should be out?
BESCHLOSS: Yes, absolutely. He should recuse himself from the Mueller case.
MELBER: It`s fascinating given your knowledge of how this has worked in the past. Michael Beschloss, thank you for being here tonight.
What is Mueller doing right now? And will America tolerate this? Two very special guests when we`re back in just 30 seconds.
MELBER: Special Counsel Bob Mueller has a new boss according to the DOJ as we`ve been reporting, Acting Attorney General, as of tonight, Matthew Whitaker who has a record as I was just discussing with Historian Michael Beschloss of trying to stay Mueller should be limited.
Now I can tell you, Mueller`s office is not commenting tonight. That is typical. Mueller lets his work speak for himself. In fact, he`s now filed more than a hundred criminal charges against 32 individuals and secured those guilty pleas and convictions from several Americans who have been caught up in this probe. They have all now pled.
I am joined by someone who has unique insights into what Bob Mueller might be doing or preparing tonight, John Carlin. He was Mueller`s chief of staff. His new book is "Dawn of the Code War." How does a prosecutor like Bob Mueller in your view deal with this situation both given the obvious practical pressures, which our viewers have now heard, but without also overreacting or assuming anything about what is under the rules, his boss?
JOHN CARLIN, FORMER CHIEF OF STAFF & SENIOR COUNSEL TO BOB MUELLER: You know I think that`s right. And look, Bob Mueller from when he was a marine to a line prosecutor to a top justice official to the director of the FBI has always done one thing, his job. I don`t think he`s going to worry about the distractions above him. He will continue to follow the facts where they may and layout things like the massive multimillion dollar Russian conspiracy to attack Democratic campaigns to try to hack election systems, to use social media to influence voters.
He will follow fraud like the jury trial where they convicted Paul Manafort for the millions of dollars he took from Russian interests. And he will continue to do so unless he is overtly blocked by someone in the justice department.
MELBER: So let`s go to overtly. If Whitaker walks into Mueller`s office tomorrow which he can lawfully do as acting AG, and says to Mueller in private what he said on "CNN" now, we should just defund this thing and that makes it go away, then based on your knowledge of Bob Mueller, how does he deal with that?
CARLIN: Well, look, I think we need to see the statements that Mr. Whitaker has made in the past and then the justice department usually follows a process where there are career ethics official that would advise as to whether or not there`s a conflict of interest that would require your recusal from a particular matter. And now, after yesterday`s elections, there will be an oversight. And those are the types of questions that can be asked and examined if someone does not follow the advice of career ethics officials.
MELBER: Bob Mueller`s recourse, I mean, if he is pushed in some way, even as all those other things in the background going on, I mean anyone watching this is going, "Yes, that sounds nice but Donald Trump has moved a lot of people in and out and changed a lot of the way people deal with the rules."
What is his recourse? I mean can he go to a judge? Can he go to some other actor in a lawful manner because we know he doesn`t leak and say he thinks his new boss is doing something wrong?
CARLIN: He does not leak. I think there`s -- the important questions to ask about under the regulation whether or not you need to report to Congress if you were to cut the budget of the Special Counsel`s office, you also definitely through the oversight power can ask budgetary questions so Congress can find out whether or not that budget is cut.
In terms of Mueller`s reaction, again, he`s going to work with the resources he has to follow the facts wherever they might lead unless he is unable to do so. If he`s unable to do so, he will as he has one -- at least one time before he will not perform the job if he thinks it`s unethical to do so and you`ve seen that with him.
MELBER: And John, stay with me. Again, your insight is invaluable on a night like tonight. I want to add in Michael Eric Dyson, a Professor at Georgetown University, as we have been covering this over the course of this half-hour we have already discussed the three branches of government. The Congress which was just won by Democrats, the White House with the President, and the courts and the role that independent rule of law plays in our republic. I want turn now Professor Dyson having heard John Carlin lay out the legal side, what about the public, because all three of those branches in our republic are ultimately answerable the American public who just spoke last night to the elections. What do you think is the role of public outrage or concern if this continues to go as so many a warning tonight as a slow-motion Massacre to end a probe that was supposed to resolve very major national security and election questions?
MICHAEL ERIC DYSON, PROFESSOR, GEORGETOWN UNIVERSITY: It`s an outrage and the public must continue to raise its voice. The American people have spoken last night in a split decision. The Senate went to the Republicans the House to the Democrats but more than a hundred women were elected in the immediate aftermath of the Kavanagh fiasco and debacle and also with a president who was grossly insensitive to the needs, claims, and arguments of its citizenry. So yes I think that what we should do is to express our outrage continually.
Look, as the great Sherrilyn Ifill of the Legal Defense Fund said I carry no brief for Jeff Sessions. In fact if Schadenfreude were an art, I`d be Picasso. But at the same time the reality is, is that this is very disturbing that an Attorney General it has been basically handed his hat to walk out the door while the President is capable of exercising his will through a person who is if you will his a second they are in the Department of Justice who will do the President`s bidding. This is a subversion of everything American and every American ought to be outraged.
MELBER: And Professor Dyson, what do you think people are supposed to make of this though when the Democrats keep saying we`re almost there. This looks like it. I just heard from a Congressman near the top of the show who said this could be that thing, but no one seems to be actually hitting the red button yet and I think Donald Trump who is a master, a master at communication and deception I think it`s fair to say, even he admits that, has found a way to keep moving it slowly and slowly our republic like a proverbial boiling frog. I don`t usually get that poetic but when you`re here I get going. How is the public supposed to decide when the line is crossed?
MELBER: I mean, let`s -- Donald Trump is Keyser Soze. We think we`re looking at something else and all along has been him you know, as a puppet behind the scenes manipulating the strings as a marionette. So the reality is this, unless we have the courage to say enough is enough, we have all been complicit in this. Look at the outcome last night white women voting in extraordinary numbers to support people who undermine them, black men joining in Texas and in Florida in ways that are disturbing. All of us have been hoodwinked. What we need to do is to stand up outright and have a serious sense of outrage and say enough is enough. We`ve got to pull the plug here. Stop going along with it. Nancy Pelosi stands up and speak in very strident and serious terms against what is an American massacre in the offing.
MELBER: So let me go to John. John, I`m now going to bring you the hardest question. You approach these matters as law and order rule of law nonpartisan, but we are talking about countervailing partisan pressures widely identified from Donald Trump from his own words that we`ve reported tonight and what he want out of this probe, and part of the energy against that is itself partisan in the resistance and yet the goal, the true goal, the good constructive goal shouldn`t be partisan against Trump one way or the other but merely to uphold the DOJ. Can you think of a time other than I guess Watergate where we`ve been in this situation and what do you see is key for America getting out through this without it becoming the DOJ caught in just the partisan crosshairs?
CARLIN: Yes. It`s -- I hope that people of good spirit on both sides of the aisle Democrats and Republicans can understand the importance of the institution of our Justice Department, why it is the envy of the world. And one of those reasons is we do not use the Justice Department to pursue people for political gains. There`s a long tradition of Independence. There are thousands and thousands of amazing career prosecutors and agents who swore an oath to the Constitution and every day seek to uphold it and the facts that they do.
And there are a lot of threats that face us you know, real threats to life like we saw in the massacre that just occurred in Pittsburgh, as we`ve seen in the charges that have been laid out by former Director Mueller that talk about Russians are trying to do to the United States. And when people are slaughtered for their beliefs in a synagogue, or when Russians are attacking or trying to undermine our election system, they`re not doing it to attack Democrats or Republicans. They`re attacking us as Americans and what we stand for.
So I think it`s -- time will tell whether someone tries to interfere in the Justice Department to end this investigation. You will be able to tell because there`s oversight by Congress and also because if they suddenly end the investigation, there are ongoing court cases in front of our judiciary. Also many of these cases have already been moved over to career parts of the Justice Department from the prosecution of President Trump`s lawyer to the follow-up on the Russians --
MELBER: Right. And that -- and that goes to one of the reporting avenues we`re going to continue and hopefully with your help later this week all the other cases. John Carlin, Professor Dyson, I want to thank you both. Up ahead, the former top DOJ officials says Jeff Sessions replacement may actually lack the authority to oversee Mueller. Neal Katyal who wrote the rules governing special counsel live on that important issue next.
MELBER: Now we turn to a major legal heavyweight and insider at the DOJ who says there actually may be legally required limits on Jeff Sessions` replacement which could prevent him in theory from overseeing the Russia probe. My next guest is someone you have certainly seen Neal Katyal was former Acting Solicitor General under President Obama. Meaning he was arguing before the Supreme Court, an important position. He also served in the Clinton ministration. And get this, as we`ve discussed before, he wrote the rules that govern the very post that Mueller has that was back in 1999.
First of all, Neal, thank you for coming on our special coverage tonight.
NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: Thank you. It`s great to be here with you.
MELBER: You state there may be a way that even though as of this moment in terms of the news we`ve been reporting, as of this moment, Whitaker is acting Attorney General United States. But you say there is a way that he may actually be limited. What is that?
KATYAL: Yes. So the Constitution really does put some limits on this. You know, Justice Clarence Thomas who`s President Trump`s kind of favorite Justice on the court just a few years ago wrote an opinion that said you know, the Senate it has to confirm principal officers like the Attorney General. It can`t just be that the President can just install whoever he wants in that. And Justice Thomas` idea there and he says the word corruption. He says what if the president is corrupt? He wouldn`t want to have a circumstance in which anyone could go and exercise the full powers of say the Attorney General, a cabinet officer or something like that. There`s a point to Senate confirmation and this is I think a very tough thing for President Trump who said he wants to strictly construe the Constitution and be guided by the founders intent.
As Justice Thomas says, that intent is really pretty clear. I mean, the guy who is now the acting Attorney General is not the person like the Deputy Attorney General who is Senate confirmed Rod Rosenstein or the Solicitor General Noel Francisco who was Senate confirmed, it`s like a staffer. And you know, that`s unusual we`ve not seen that before. I mean, this is the Attorney General of United States with all of the massive powers incumbent and it`s being you know, handled by effectively a constitutional nobody. And yes, I think the Constitution has got a lot to say about that.
MELBER: You`re calling him a nobody. A lot of people who watch the news every night are saying we never heard a Whitaker and now he`s the guy in Trump`s vision. He`s now wiped out Rod Rosenstein and he`s on the record saying all these things. I want to read you something that our news researchers just unearthed. This is from July 2017. It`s a little ominous given that this is the Acting Attorney General with regard to laws to protect Mueller that might reinforce his independence. He wrote they`d be a mistake, cannot have anyone unaccountable in executive branch "already protected enough," Neal.
KATYAL: Yes. I think this is all deeply, deeply worrisome. And look, I understand that you know, when there`s death or disease of the cabinet official, you want to be able to put someone in to temporarily handle those responsibilities and you know. And I`ve been in the Justice Department twice. I love the Department and everything it stands for, what you just heard Mr. Carlin saying a moment ago. But when you`re in the department, you know that there are a whole host of authorities, laws and so on written for emergencies like death and disease. And you have to be really circumspect about using them because if you cry wolf and pick them up and use them for stuff they`re not intended for, it just makes it harder for future presidents down the road. And that`s what this president has done.
He`s taken the kind of emergency situation and used it to force out his Attorney General, to put someone else in place who`s as effectively his lackey, and who can literally you know, try and end the Mueller investigation and so we are at the beginning stages of a deep constitutional crisis --
MELBER: You say we`re --
KATYAL: And we`ll see what happens.
MELBER: You say we`re heading towards a constitutional crisis. Michael Beschloss said tonight in this hour to respond to the breaking news it`s ten times worse than Nixon. How would any of this work? How would there actually be a limit executed on this issue if you`re correct?
KATYAL: So Whitaker, the acting Attorney General could terminate Mueller tomorrow or refused to do certain things that Mueller asks like subpoena the president or something like that. Those special counsel regulations which we wrote in 1999 put the Acting Attorney General in the driver`s seat when it comes to supervision of the special counsel and approval all of all requests. Now, there is one safety check against that which is we put in the regulations we said, if the Acting Attorney General says no to the special counsel, says no to Mueller --
MELBER: They go to Congress.
KATYAL: It`s got to be reported to Congress.
MELBER: Which is going to become a Democratic Congress. I mean, you stitching that together, I`m supposed to fit in a break. It`s so important. I`d love to have you back on THE BEAT again on this and other stories. Neal Katyal, thank you.
KATYAL: Of course, Thanks.
MELBER: Coming up, here`s a quote, "angers me to my core." What a Republican Congressman said today about Trump "spewing filth." That congressman joins me live on this big night next.
MELBER: Today Donald Trump absolutely hammered some members of his own party.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: On the other hand, you had some that decided to let`s stay away. Let`s stay away. They did very poorly. I`m not sure that I should be happy or sad. Carlos Curbelo, Mike Coffman, too bad Mike. Mia Love gave me no love and she lost. Too bad. Sorry about that, Mia. And Barbara Comstock was another one. I mean, I think she could have won that race but she didn`t want to have any embrace. Peter Roskam didn`t want the embrace. Eric Paulsen didn`t want the embrace.
(END VIDEO CLIP)
MELBER: Many saw that as false and misleading and petty. Republican Congressman Ryan Costello joins me in a moment. Here`s what he said about it today. To deal with harassment and filth spewed at GOP members in tough seats every day for two years because of POTUS, Trump, to bite your lip more times you`d care to, to disagree and separate from POTUS, Trump, on principle and civility in your own campaign, and to lose because of Trump and have him quote piss on you angers me to my core.
Republican Congressman Ryan Costello joins me now. What do you want to say back to the President today?
REP. RYAN COSTELLO (R), PENNSYLVANIA: Well, Ari, I watch a show sometimes and I know you like those rap lyrics and I feel that if you were to go to Geto Boys, My Mind Is Playing Tricks On Me.
COSTELLO: That the President here has -- his mind is playing tricks on him. We lost those seats because of the President. Those are good members of Congress. I understand that some people didn`t vote Republican this time around but they worked hard. They all had an independent streak and every single day, they were dealing from incoming a lot of hate and a lot of tough stuff said their way and they did their best and to have the President of the United States mock them on the way out after a tough campaign, I just think it`s deplorable and it really bothers me and I couldn`t hold back.
MELBER: Well, Congressman, I wasn`t -- I wasn`t expecting you to reach into the vault for Geto Boys. In that song, you have an individual described who thinks he`s fighting another person and he ends up realizing his mind playing tricks on him that he`s fighting the cement. He`s punching out the cement and hurting himself. Do you think --
COSTELLO: I believe that was -- I believe that was Bushwick Bill.
MELBER: Bushwick Bill.
COSTELLO: I believe it was Bushwick Bill.
MELBER: Yes, sir. So here we are. Do you think that Donald Trump is being Bushwick Bill and ultimately hurting himself?
COSTELLO: Well, certainly. We have a Democratic House now. And I heard some of the other folks on your show talk about Whitaker and what happens next. The reality I don`t think that you can do much in the way of ending the Mueller probe without certain things happening in the House. Obviously, subpoena power is now going to happen. So even if he were to somehow be fired, Congress will very immediately be able to subpoena anything that that any report that Mueller has issued. And I think more broadly here`s the real issue.
The President chooses to fight everyone and in this instance, you`re talking about members of Congress who woke up every day and gave their all. And it`s -- at certain point in time you know, you don`t always have to agree with what everybody says or does but there`s a certain base level of respect that I think everybody that serves in Congress should be accorded. And what the president did in the White House today showed a total lack of respect for those members of Congress. Many of whom are my friends and it`s just entirely inappropriate.
MELBER: Do you think it goes to Donald Trump`s moral character and do Republicans need to stand up to that?
COSTELLO: Well, certainly it`s a character issue and I -- but in terms of Republicans standing up to him, I don`t know what that means. I mean, I speak out regularly as do many others --
MELBER: I know you do and I appreciate you coming on THE BEAT. I guess one thing it means in the short time we have left is do Republicans need to say that the new Attorney General needs to be someone without even a hint of conflict about law and order regardless of where this probe leads?
COSTELLO: I think -- yes, that`s a great question. A good tweet you could find would be Senator Lamar Alexander, a Republican Senator who said that no attorney general nominee will get confirmed if they are willing to shut down the Mueller probe. In other words, the Mueller probe must continue unimpeded, uninterrupted. Mitt Romney said it, Lamar Alexander said it. I think you`ll see a lot of other Republican Senators say it. We have a bill in the House that would also protect it. So I don`t -- I`m a little concerned with what Whittaker has said in the particular column that he wrote but I don`t think that Whitaker is going to have free rein to impede this investigation to the extent --
MELBER: But do you think it is wrong -- do you think it is wrong President Trump to install someone in there who`s on the record saying we should basically defund this probe to end it.
COSTELLO: Listen, the President has a right to terminate an Attorney General and nominate someone of his choice. To be clear, this is not --
MELBER: I know that and you know that, but guy has got a record. There`s a lot of lawyers out there.
COSTELLO: Yes, I understand. But this is a 210-day appointment at it`s maxed, I believe. Listen, I`m troubled by that. To be clear, I`m not I`m not I`m not having and hawing on you on that, but this is not his nominee nor do I think that this individual will be the nominee first because of some of the things that he`s said and written.
MELBER: And you`re drawing an important line there which is yes, this is supposed to be temporary. Who`s the person that can actually get through the Senate and the House having more power. Congressman Costello, I know this is your first time on THE BEAT. I hope you`ll come back.
COSTELLO: I`ll look forward to it. Thanks, Ari.
MELBER: Thank you, sir. We have one more thing when we come back.
MELBER: Some news before we go. Matt Whitaker, the Acting Attorney General tonight has released his first statement. He says he is committed to "the rule of law." But the statement does not address any of the brewing controversies about what Democrats say or his potential conflicts and what a guest tonight said could be grounds for his removal from overseeing Bob Mueller. A lot more on this story tomorrow.
I want to mention also, we have John Podesta former White House Chief of Staff to Clinton and a counsel to Barack Obama joins me on a very, very busy week. But don`t go anywhere.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END