Show: THE BEAT WITH ARI MELBER Date: February 20, 2019 Guest: John Flannery; Howard Dean; Ann Marie McAvoy; Heather McGhee; Jim Whelan
CHUCK TODD, HOST, MTP DAILY: Can you give me that? Maybe you want the Matt Whitaker or how about the Trey Gowdy or perhaps the Trey Gowdy or maybe even the Benghazi version of Trey Gowdy. So good luck to Mr. Hanoi Barber or maybe it`s Mr. Barber. You have your work cut out for you. I sure hope you`re up to the challenge because otherwise, there will be hell to pay.
That`s all we have for tonight. That joke really works in print a lot better than when you say it. We`ll be back tomorrow with more MTP DAILY.
"THE BEAT WITH ARI MELBER" starts right now. Good evening, Ari.
ARI MELBER, MSNBC HOST: Chuck, I`m no expert --
TODD: Did you get it?
MELBER: Look, I`m no expert but I`m pretty sure that those of us in media and politics are not supposed to give out the fashion tips to the fashion people and the barbers, right. We have it backwards.
TODD: You don`t think this. You don`t think this. Goodbye.
MELBER: All right. Goodbye. Chuck Todd with an amazing sign-off.
Now, we begin tonight with a lot to get to, but also what is clearly, I can tell you this tonight, the clues and the signs and the evidence of a turning point in the Mueller probe. We are seeing indications that he is moving towards some kind of finish line.
Let me show you the latest signal. It`s from the president. A man who has been under scrutiny for two years struck a tone, I`ll let you decide for yourself, but he looked almost deliberately blazze (ph) about how this Mueller report could come out soon.
(BEGIN VIDEO CLIP)
REPORTER: Mr. President, should the Mueller report be released while you`re abroad next week?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: That will be totally up to the new attorney general. He`s a tremendous man, a tremendous person who really respects this country and respects the Justice Department. So that will be totally up to him, the new attorney general.
(END VIDEO CLIP)
MELBER: Totally up to him, as if this was not a president who gets involved, Donald Trump famously wanted to fire Jeff Sessions for not defending him enough against this lawful Russia probe. Now, he claims he`s hands off but it`s his hand-picked attorney general who, of course, will decide all of this.
Now, if you look at the president there -- and we don`t do a lot of body language on this show. But he, at least, seems to be playing the role of someone who doesn`t want to look tense. He seems like a man trying to evince a certain lack of worry about where this is headed.
And none of this is in a bubble. This was just six days ago that we got the vision of Bill Barr being sworn in as the new attorney general facing there the chief justice and the man who he is investigating and the man that Mueller has been investigating.
Now, last night, Trump officially nominated Barr`s deputy to replace the man who had been overseeing this, the most famous deputy attorney general in American history, Rod Rosenstein. Meanwhile, NBC reporter that Rosenstein would only step down, he would only leave after Mueller finished his work.
Now today, that`s not all, as I mentioned in clues. We`re interested in the evidence, not the rumors. The clues that Mueller might be wrapping things up comes from here, a report by "CNN" that on three different days last week, there were workers in Mueller`s office carrying boxes, pushing a cart of files out of their office and that the grand jury which indicted Stone, Manafort, and others has not actually met in weeks. The last thing they did were the charges against Stone.
And in some of the big cases that are moving forward, we see the other offices that could take -- it`s like football. They could take a handoff and then you have all this other action that I want to tell you about today before we bring in our experts, a New York judge granting Michael Cohen more time before he reports to prison based on a surgery and his lawyer saying he is still preparing to testify.
Important note, this was a prosecution that originally began, of course, with the Mueller probe and ended up back in New York. Roger Stone goes face to face tomorrow with a judge that he at least mocked online, maybe worse, a question of whether he violated a gag order. He`s not just being prosecuted again by Mueller`s office.
The handoff, lawyers at the D.C.`s U.S. attorney`s office are involved. They could continue if Mueller wraps up. Now, Stone has been, of course, on this nonstop media blitz over the last few weeks and he claimed memorably that he felt this was overboard, this was somehow a problem, the lawful arrest that you see on your screen at his home in Florida when they executed the lawful arrest warrant.
But compare that video of Stone`s arrest with his own online attacks on this federal judge who will decide tomorrow his fate. And you can assess for yourself what was really inappropriate, what was really a potential threat.
So tomorrow is a big, big day in the Mueller probe, no matter what. But what we don`t know tonight is if it could be one of the last big days, one of the last big hearings while Mueller is still formally on the job.
So let`s get into it with people who know their way around these very intricate issues. Former Federal Prosecutor John Flannery, Ann Marie McAvoy, a former federal prosecutor who also represented Donald Trump`s Deputy Campaign Chair Rick Gates in the Mueller probe and brings that important relevant experience.
And for the wider view of the politics of all of this, because the ending of any Mueller probe is going to have a lot of political reaction, a man who used to run the Democratic Party, a governor, a doctor, Howard Dean. How are you doing, governor?
HOWARD DEAN, FORMER GOVERNOR OF VERMONT: I`m doing great.
MELBER: Nice to see you. We`re going to get to you. Flannery, I begin with you based on the clues, stipulating what we don`t know, what do you see is significant about where this is headed now?
JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Well, I had a different reaction. When you talked about all the documents being packed up and leaving the office, all I could think of was Watergate, in which the team, Rick Ben-Veniste, and others, they took documents off the -- out of the office because they feared what would happen to the office if it would be shut down and all that they had gotten would be lost. So I don`t know.
I mean there`s been so many advances in terms of search warrants and data that they found, it still doesn`t feel like they would do it except out of compulsion, to issue a report now. And I think it`s an evolving thing. I think the way any investigation works is you get a more and more precise picture as time goes on.
And I`m sure Mueller has worked that way. But whether --
MELBER: And you know --
FLANNERY: -- or not he`s going to have a report imminently, I don`t know about that.
MELBER: You know we press everyone around here, John. Are you analyzing or are you hoping?
FLANNERY: No, I think I`m analyzing. Why would all these documents leave his office when there`s not a court proceeding that requires him like say the Alexandria trial. That doesn`t make sense to me. So I`m analyzing the facts as you have them available and presented them.
MELBER: With a grin to boot.
FLANNERY: Yes, I`m a happy guy.
MELBER: Well, you know, he`s a happy lawyer. Ann Marie, I think John is making what for many critics of Donald Trump would be the best case scenario and the idea that there`s a lot more to go on. What we do here is report the way things look.
And there is evidence, as I`ve just gone through, that there`s at least a possibility of Mueller wrapping up without more indictments. That doesn`t mean there might not be a report with all kinds of bad stuff about Donald Trump stuff that the House might want to consider. A lot of activities if basically taken by any other human, they would be called obstruction of justice.
And the question is what does our constitutional system do when the president is that human? But what do you think? Do you see it a little differently? You were the person on the panel who has interacted with these Mueller folks.
ANN MARIE MCAVOY, FORMER FEDERAL PROSECUTOR: I think there`s a very good chance that it may be winding down. Although it`s very difficult to say. We`re always reading the tea leaves, trying to figure out what`s happening.
They do have a new attorney general. The attorney general is now in charge of this investigation. Mueller reports up to him. He may say enough and shut it down, we`re done. And that may well be why they`re taking boxes out but it may also be that it will continue for some time. It`s very hard to tell.
MELBER: As a prosecutor, you deal with all kinds of people trying to break the law and get away with it. Crime and cover-up. Listen to another celebrated attorney who rose all the way to acting director of the FBI who everyone has heard from this week. Because he put it in rather start terms, not backward-looking about what Andy McCabe said he saw in his book but really the criminal overlap that he saw in the way Trump does business. Take a look.
(BEGIN VIDEO CLIP)
ANDREW MCCABE, FORMER ACTING DIRECTOR, FBI: This is classic kind of criminal enterprise behavior, right? You have a strong leader who rules by force of will and personality, who demands unquestioned loyalty from those people around him.
He has got to be sure that people are on his side. If you`re not on his side, you`re against him. And if you don`t have that, it`s a threat to his very existence. Those are some of the same traits that I saw interacting with the president and the folks in his administration.
(END VIDEO CLIP)
MELBER: What`s notable about that is that is not mere criticism. That is not just punditry. That is a window into the mindset of someone who actually at one point was making sure there was an investigation of this president. What you heard from him, does that sound to you like the way that the prosecutors and the investigators you dealt with in this probe were approaching this or could this wrap up with them saying look, there`s a lot of stuff we don`t like but we`re not calling it a criminal enterprise?
MCAVOY: It`s hard to say. I mean I only dealt with the Rick Gates issue as far as with the special counsel`s team. So we didn`t talk about anything other than that.
But you have to remember, too, when you`re looking at McCabe, he -- the attorney general -- the inspector general found that he lied on a number of instances.
MCAVOY: And he`s trying to portray things in a way that`s favorable to him so people also feel sorry for him and hopefully --
MELBER: Do you think he`s -- well, since you bring it up. Do you think he`s lying now?
MCAVOY: It`s hard to say. I mean this is a guy who`s lied so many times. You sort of lose --
MELBER: Well, it`s not that hard to say. I mean I`m asking you point blank, are you just mentioning something to discredit him or are you saying that what he says now is lying?
MCAVOY: I don`t trust him.
MELBER: I would appreciate a straight answer.
MCAVOY: Right. I don`t trust him. I tend to be a little cynical. I`m a former prosecutor. When somebody has lied a few times under oath, I no longer trust what they say. So I would then take everything that they say without putting a lot of stock into it.
And I also look at the fact of what circumstance he`s in. He`s in a circumstance right now where he`s trying to get himself out of trouble because there was a criminal referral he`s under --
MELBER: Because there`s still the open probe in D.C.?
MCAVOY: Absolutely. He`s under investigation.
MELBER: I think that`s an important context you bring.
MELBER: Governor Dean, your views on any and all of the above, as well as how it`s going to play in a town that has become obsessed with strong reactions to whatever comes out of the FBI?
DEAN: I think it`s too early to say. I mean we love to speculate about this because it`s certainly high drama, particularly when McCabe said that he thought he had an investigation just to see if the president of the United States was a Russian asset. That`s something we`ve never heard in the history of the Republicans as far as I can tell or anybody -- any other foreign asset but we just don`t know.
I mean Mueller has run a very professional, quiet investigation with virtually no leaks whatsoever. And we can speculate all we want but there is actually, unfortunately, very little evidence to come to any conclusion, I think, at this point about what`s going to be in the investigation and when it`s going to appear.
MELBER: Let me ask you, John, on Roger stone, which is another big piece of this.
MELBER: And again, you can do the thought experiment. If an aide to George Bush or Barack Obama was indicted for all this terrible stuff and then basically went and did these really remarkably irresponsible attacks on the judge, and now tomorrow the judge is going to rule.
And, to put it in simple terms, he could get a warning. He could get an even more restrictive gag order. He could get an ankle bracelet, kind of like the rapper, Rick Ross. If you remember his ankle bracelet. He could get a fine or he could get jail. What do you think is going to happen there?
FLANNERY: Well, if I were the judge -- and I`m sure the judge has considered this. Part of his story is that some aide did this. That is suggesting, you know, he calls it a Celtic cross, a bullseye for a rifle shoot next to a picture which certainly wasn`t originally with that, and some aide did that without consulting with him.
I want that person on the carpet to tell me if that conversation happened because I don`t believe a thing that comes out of his mouth. I don`t think anybody else does either. The trickster, the liar, the manipulator. And he probably never expected it would get caught up, that he would get away with it.
And then when he did, he took it down but put up the picture again, then took down the picture, then apologized when he was caught. And these conversions on the edge of being punished are important. So if I were the judge, I would be Scrutinizing pretty carefully what he has to say, not believing anything that have to be persuaded.
And I would consider obviously changing the conditions of his release, no matter what he said. But on top of that, if I suspected that he was lying, as is his course, I think that I might suggest he spend a couple of days at the federal expense instead of wherever he`s living right now.
MELBER: Right. I mean any time in jail might disabuse him of the notion that this is a set and a platform --
MELBER: -- for publicity. Ann Marie, when you had your client dealing with this, it doesn`t seem that he followed advise to go out and hold all these press conferences and do it for the gram as they say. And your client here is one of the people that is guilty. I want to put this in terms of what we`ve learned.
You have Manafort guilty, Gates guilty who you represented, Flynn guilty, Stone indicted, and, of course, all the Russian nationals indicted. In your view, having interacted with this, if this is where it ends, was this still a really big deal or does this look to you like something that you would argue, while serious, is a lot of cover-up in what they call process crimes and not the underlying collusion?
MCAVOY: Well, it doesn`t have a lot to do with Russia. And it doesn`t seem to -- none of it seems to go back to Trump. They don`t seem to make that connection between Trump himself. So they don`t seem to have that.
It`s serious crimes that he has committed. The photo with the crosshairs could be looked at as a threat to the judge, or to incite some sort of violence against her.
If she looks at it that way, that`s very serious, too. And all of that will affect eventually, if he is found guilty or pleads guilty, the sentencing. So, he could be looking at some serious time. And the fact that he did this now makes it worse.
MELBER: Governor Dean, big picture. And if there is "no electoral conspiracy, no collusion", what do you take from this? Is your argument -- is the Democrats` argument yes, OK, there wasn`t an international Watergate election conspiracy, there was just a ton of felonies by all the top people Trump picked?
DEAN: Yes. You know, I don`t think the stench of the Trump family corruption is going to go away no matter what happens. I think if he gets indicted or if many of his people get indicted, there may be impeachment hearings depending how much evidence there is.
But Trump`s label is now corruption. And his base is going to love him anyway and everybody else is going to hate him. And I don`t see a big change in the status quo. I do think there are a number of people going to jail. And I wouldn`t rule out Donald Junior.
MELBER: Very interesting. Ann Marie, I should mention that Andy McCabe is going to be on THE BEAT tomorrow and said hi.
MCAVOY: I wish him well. I hope it all works out well for him. He`s in a lot of hot water.
MELBER: It was more of a -- it was a little bit more of a joke question.
MCAVOY: I know.
MELBER: But you`re answering it seriously and you`re a serious prosecutor.
MCAVOY: But yes, he`s got a lot to deal with. No question of that.
MELBER: Well, you can`t argue a case unless you hear every side. And we benefit tonight from the wisdom of Ann Marie McAvoy, Howard Dean. And John Flannery, I want to get you later in the hour so stick around, keep the bow tie on.
FLANNERY: Yes, sir. I`m ready, sir. I`ll be ready.
MELBER: Up ahead, another lawyer for another Mueller witness joins me to discuss exclusively Trump deferring to the new attorney general. Is it true? What does it mean?
Later, my special report that is so timely tonight, the breakdown of whether a president like Donald Trump can be indicted in office, a former DOJ official who wrote the special counsel rules will also be a part of our received wisdom.
Later, this is so important we have on the show tonight. A fact-check on immigration live from Mexico, proving why Donald Trump is completely 100 percent wrong on the factual basis for the emergency powers.
And later, yes, I teased it earlier. We`re going to have the former acting FBI Director Andy McCabe involved in THE BEAT.
I`m Ari Melber. We`ve got a lot more. Stay with us.
MELBER: Major news has everyone talking about the Mueller report tonight. President Trump saying it is now up to the new Attorney General Bill Barr on what happens next.
(BEGIN VIDEO CLIP)
REPORTER: Mr. President, should the Mueller report be released while you`re abroad next week?
TRUMP: That will be totally up to the new attorney general. He is a tremendous man, a tremendous person who really respects this country and respects the Justice Department. So that will be totally up to him, the new attorney general.
(END VIDEO CLIP)
MELBER: Totally up to him. As we`ve been covering tonight, that`s the kind of statement you can interpret all sorts of ways. And if any of this is familiar if you watch THE BEAT, it may be because we made a point to discuss the very same point that Donald Trump said on the record today with a Trump ally, Matt Schlapp, last night. Because he made what many took to be an ominous prediction, that Bill Barr would have some sort of "effect" on ending the Mueller probe and thus it would "end soon".
(BEGIN VIDEO CLIP)
MATT SCHLAPP, CHAIRMAN, AMERICAN CONSERVATIVE UNION: One of his many jobs is to have the special counsel read him in on where --
SCHLAPP: -- he is in the underlying charge. It`s a simple statement.
MELBER: But Barr -- look, hey --
SCHLAPP: And if there`s no collusion, it should come to an end.
MELBER: Matt, Barr effect sounds a bit like he`s going to do something because of Barr. Let me play --
(END VIDEO CLIP)
MELBER: No or yes? Let`s get into it. Heather McGhee is a Distinguished Senior Fellow at Demos and knows her way around Washington as well. And Jim Whelan is a former federal prosecutor who actually dealt with Mueller Prosecutor Andrew Weissmann representing a former employee of a Trump digital linked firm that was subpoenaed by Mueller.
Great to have both of you here.
JIM WHELAN, FORMER FEDERAL PROSECUTOR: Thank you for having us.
HEATHER MCGHEE, DISTINGUISHED SENIOR FELLOW, DEMOS: Good to be with you.
MELBER: You see what Donald Trump said. Do you believe him?
WHELAN: I do believe him. I believe him not because Donald Trump said it but because I think that Bill Barr is a man of integrity.
If the Mueller report has direct or circumstantial evidence that the president colluded with Russia, Mueller is releasing the report. If there`s no direct or circumstantial evidence of collusion, the president and Barr would want to release the report anyway but I believe that Barr is going to make the decision on the merits.
MELBER: I haven`t heard it put so succinctly. If it`s bad for Trump, Mueller will definitely get it out. And if it`s good for Trump, there`s no conflict because the White House would want it out. Do you see that in the coming weeks?
WHELAN: I don`t know about the coming weeks. I`ve seen the, what I call speculation, that it`s coming to an end. There`s a lot that we don`t know. I mean Donald Trump Jr., he`s got to be interviewed, right? He`s central to the meeting at Trump Tower. It`s hard for me to believe that they would conclude the investigation without --
MELBER: Well, you raise a very important point as these prosecutors tend to do. Let`s put up on the screen the people that haven`t at least ever been publicly confirmed as interviewed yet by Mueller, Donald Trump Jr. you mentioned, Eric Trump, Ivanka, Vice President Pence who, of course, was at least somewhat involved in the sanctions issues, John Bolton who join later, and Kellyanne Conway who lies constantly but perhaps not under oath.
WHELAN: Fair point.
MELBER: OK. I mean we`re all adults here.
MELBER: So when you look at that list, and then this parlor game that is backed by evidence. I mean the reason why we led tonight with the story that there are signs that Mueller is moving is that the signs look real.
And you`ve dealt with them with this parlor game and those people, what does it tell you? That perhaps they were interviewed and we never heard about it?
WHELAN: It`s hard for me to believe that if they were interviewed, someone on their side of the fence wouldn`t have released the details. And we`ll find out when we find out I suppose but it`s just -- it seems to me that some of the signals to me suggest that there are parts of it that are ramping down. But my own prediction is that we`re in for at least several more weeks, if not a couple of more months of the investigation.
MELBER: That`s interesting, coming from you, having represented someone directly con to this probe. Your views.
MCGHEE: I don`t think we can sort of read the tea leaves about when this is going to come down but I think what we do have is a sense of where the grassroots in this country right now, where the ordinary citizens who have been watching this for the past two years, who have been watching this slow trickle of damning information about the president`s administration, his campaign, and about obstruction of justice.
People are watching and they want to see the report, right? I mean I think we have school teachers and people who normally are not reading legal reports wanting to know the truth from Robert Mueller. And so --
MELBER: Which is a good thing for civil society.
MCGHEE: It`s a great thing for civil society.
MELBER: What if Robert Mueller tells them something that a lot of them don`t want to hear?
MCGHEE: I think that`s important too. I think that`s very doubtful given what we already know given the five out of six Trump campaign associates who have already pled guilty, given everything that we know about the communications between the Trump family and Russia, how many times the president lied about his contacts with Russia. The vice president also lied about contacts with Russia.
And so I think what`s important is that the American people are going to be in the streets if the Mueller probe is ended and if there`s anything that looks suspicious about the way that that ended under Barr and then also if we don`t get to see all of the facts.
MELBER: Did Donald Trump look extra chill to you?
MCGHEE: Yes, he did. He really did, right? I mean he said this guy is a tremendous man, right? We`ve seen this sort of psycho flattery, right, of asking for loyalty. We know that William Barr was on the record basically saying two things.
One, that this entire investigation was, you know, something that he was suspicious of. And then, more importantly, the idea that the president can`t be indicted, which is not actually something that is settled law. And certainly, the Supreme Court has seen the other way.
MELBER: Well, we`re diving exactly into that question. It`s top of later in tonight`s show. What did you learn dealing with the Mueller prosecutors? And I heard you dealt particularly with one of the fiercer ones, Andrew Weissman.
WHELAN: Well, Weissmann I knew when we were both in the U.S. attorney`s office 20 years ago. And so I mean a number of people from the Mueller staff, they were extremely professional. They were very thorough. And they looked, to me, as people that were simply trying to follow facts. And --
MELBER: What was their theory of the case?
WHELAN: Well, the witness that I dealt with was really unrelated to the central issues with respect to Trump and collusion and the like.
MELBER: Well, he`s a lawyer, Heather. What else could you expect?
MCGHEE: I think that was --
MELBER: I don`t expect you to say, well, the person I`m defending was the linchpin of the collusion but go on.
WHELAN: No. But he did impress me and his people. I mean he staffed -- Mueller has staffed his team with people that are real professionals. They are dedicated, most of them, career public servants, most of them apolitical.
And so I think that what we`re going to find is that they`re fielding every single groundball in a very wide field and they`re going to do a very, very detailed report. And there are going to be some people that are disappointed by it and there are some people that it`s going to reinforce their own beliefs and prejudices but I think there will be some surprises in there as well.
MELBER: Jim, as someone who has represented a witness in the probe, it`s great to have you here, particularly in these coming days. I hope you come back.
WHELAN: Thank you.
MELBER: Heather, we`ve seen you before. We hope to see you again.
MCGHEE: Thank you.
MELBER: Thanks to both of you.
And as Heather was just asking, can a sitting president be indicted? We have a special report on that when we`re back in 30 seconds.
MELBER: New clues tonight that whatever Bob Mueller has found, he could hand off his report soon. Donald Trump saying this afternoon his new A.G. will decide what happens to any Mueller report. And journalists have been tracking the clues that Mueller`s grand jury could be winding down. News coming as the DOJ announces a replacement for Mueller`s old boss this week, Rod Rosenstein. He says he will leave DOJ entirely by next month and that matters because he suggested Mueller`s report would be filed before he, Rod Rosenstein, departs.
No one knows what Mueller will find or release but we do know the rules that govern Mueller say that he must "explain all of his prosecution or declination decisions". The prosecution part is simple, because we already know who Mueller has prosecuted in public. In declination, that means people that he did investigate but chose not to prosecute.
And so that obviously as many people are asking, well, how could that apply to a president? No prosecutor has ever tried to indict a sitting U.S. president, making that scenario more familiar as fiction than as news, like when 24 showed a fictional secret service arresting the fictional president they were once protecting.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Declaring to arrest this man and get him the hell out of here.
UNIDENTIFIED MALE: I`m sorry, Mr. President, we have our orders.
UNIDENTIFIED MALE: You take your orders from me.
UNIDENTIFIED MALE: Not anymore.
(END VIDEO CLIP)
MELBER: Not anymore. Depending on what era you`re in, that might be more or less exciting. But why, legally, is considering that more fantasy than reality? Well, as everyone awaits the Mueller report, tonight, it is worth getting into the answer.
The Constitution does not say this explicitly. But many scholars believe it suggests against indicting a sitting president and the DOJ has reinforced that view by also formally advising against it. Now, that doesn`t mean it`s legally impossible but it does set the bar, basically, about as high as it gets without formally banning the indictment of a sitting president.
So here are both reasons. The founding fathers did consider the idea of presidential crimes, of course, and they created a way for the Congress to remove the president from office for high crimes or misdemeanors. Now, there is wide debate over what is a high crime but the Constitution`s core remedy there is, of course, Congress, not the prosecutors in the president`s own executive branch to deal with any such alleged high crime and then potentially remove a president over it.
Now, does that mean people are immune from prosecution because they serve as president? No. And this is important. The theory is about the order of operations not that these people, because they`re president, are above the law forever but it holds that a president would first have to be removed from office and then charged later.
Consider the debate from the time of the founding. George Mason who didn`t actually sign the Constitution argued that the president`s pardon power was too broad saying the president ought not to have the power of pardoning because he made frequently pardoned crimes which were advised yes by himself. But James Madison rejected that saying look, there`s the security of the house which can impeach him.
And here`s why I`m showing you that ancient history tonight as everyone waits for Mueller to do something. The exchange does suggest that the founders when they presume there could be a crime committing president, they also presumed the first response was impeachment to that. So it may sound unjust to have presidents who would face no prosecution for crimes all in office. You can think about the examples that support this theory.
Take a hypothetical. The president trespasses on someone`s private property, really did it, busted on video, no doubt. And that`s a state misdemeanor and under the law a local prosecutor could try to indict on that offense and a convicted trespasser could spend months in jail in D.C. But no legal scholars really think the Constitution supports that outcome. They argue the impeachment power requires high crimes for that very reason and that it Congress would never find trespassing in D.C. to be a high crime.
Then there`s the second reason that it is hard to consider indicting a sitting president. You`ve probably heard a lot about this one that the DOJ recommends against it.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: The sitting president cannot be charged with a crime.
UNIDENTIFIED FEMALE: The prevailing rule is that a sitting president cannot be indicted.
ANDREW NAPOLITANO, CONTRIBUTOR, FOX NEWS CHANNEL: The president cannot be indicted while a sitting president because that would materially affect his ability to run the executive branch.
(END VIDEO CLIP)
MELBER: This view that you hear in the news has become so commonplace, it works as a punchline of how why Trump acts like he`s above the law.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: So Rudy, did you go on Fox News last night?
UNIDENTIFIED MALE: Like 20 times, yes. Don`t worry, I told them that you are openly colluding with Russia but then I ended with "So what? I`m sure all this is fine."
UNIDENTIFIED MALE: Thanks, Rudy.
UNIDENTIFIED MALE: I even confess to some crimes you didn`t do. And then I said, what are you going to do, arrest the president? I dare you.
(END VIDEO CLIP)
MELBER: I dare you. It goes well beyond skits. That`s SNL Rudy but Trump`s own real lawyers like real Rudy, they don`t just say that he`s innocent. They also make this more suspicious sounding argument that even if he were guilty, the DOJ doesn`t have the right to indict under the rules. And they note that indicting president would unduly interfere with his constitutionally assigned duties and that regardless of guilt, indictment alone would handicap a presidency taking an overwhelming degree of preoccupation away from the president.
Now, the DOJ official guidance says that this immunity that we`re discussing would not preclude prosecution once the president`s term is over or he`s otherwise removed. That is something that could scare any president who thinks or knows they committed a crime. Now another Trump lawyer made headlines for reportedly telling Trump that lying to Mueller could land him in an orange jumpsuit.
Now, we don`t know whether Bob Mueller`s report when it comes out will allege the Donald Trump lied in his written answers for example, but that was Trump`s own lawyer with the view that sooner or later you could go to jail for it. So there you have it. The two reasons a sitting president is unlikely to be indicted. You have impeachment and you have the DOJ recommending against it.
But what if you had an emergency or a high crime or some reason the DOJ wanted to go forward on indicting a president? Two former special counsel have actually argued that indicted a president on the job is not always off the table. The Watergate prosecutor Leon Jaworski argued in a memo that there was nothing in the language of the Constitution barring the indictment of a sitting president.
And then you get into modern times. Ken Starr was famously the Republican Special Counsel investigating Clinton. And when I asked him, he took the same view.
(BEGIN VIDEO CLIP)
MELBER: You solicited an opinion for your investigation that argued a sitting president could be indicted. Did you agree with that view then?
KEN STARR, FORMER SPECIAL COUNSEL: Yes.
MELBER: Do you agree with that view now?
(END VIDEO CLIP)
MELBER: Those are major prosecutorial opinions. Now, we should note, neither of them actually did the thing they say they could have done legally. They say they had that power but -- or they think that power should exist but they didn`t indict a president as you know.
Now, then you have DOJ guidelines and a debate over what they mean. They`re not law and the man who actually wrote the ones for the special counsel said this.
(BEGIN VIDEO CLIP)
NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: The regulations say, Mueller, you`re bound by DOJ policy but you can seek exceptions and so that`s what I expect he would do.
(END VIDEO CLIP)
MELBER: And that is why all of the backstory and illegal history matters tonight. We don`t know what mother`s going to do, but if according to the man who wrote his rules, he uncovered the kind of crime that was so significant that he needed or thought there was a public interest requirement to indict a sitting president, he could ask for an exception. But he would have to do that, he would have to do that request by submitting it to the current new Attorney General.
Now, we know the judges are no stranger to keeping presidents in line. They ultimately ordered Nixon to turn over those very damning Watergate tapes. They said the president didn`t have a kind of limitless executive privilege to withhold the information.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: It is a unanimous decision 8-0. Justice Rehnquist took no part in the decision ordering the President of the United States to turn over the tapes.
(END VIDEO CLIP)
MELBER: That was one of those moments in Watergate to changed history. We don`t know yet whether anything in the Mueller report will push towards one of those moments now. The reason why we look at the law and the Constitution and mentioned tonight that there is a very high bar to ever go that far against a president is because it is the law and not our opinions about any given president that matters.
I wanted to share that with you and I`m going to come back with a special guest to break all of this down.
MELBER: Breaking news in our hour. I`ve just been handed a new Washington Post report story breaking on the Mueller endgame. Justice Department preparing from Mueller report. The Post puts the timeline at "the coming days." A significant advancement of a story we`ve been covering all evening and I want to turn to two experts who followed the probe a lot for us. Jason Johnson from TheRoot.com. and a professor political science and former Federal Prosecutor John Flannery.
We just got this from the Washington Post. It echoes some of the reporting we had the top of our hour but does advance it, John. They put the number of days. You could say who knows. But they also have interesting details. One, the Post reported tonight moments ago that Trump`s inner circle has "palpable concern" that there could be damaging material at the Mueller report that`s not technically illegal but is "damaging to him."
And two, reports that people who are on molars team, top prosecutors, have reportedly begun talking to old bosses about future jobs when they leave this office, an office known to avoid leaks but that`s a conversation that sooner or later people would have. Your reaction, John.
JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Well, my reaction is when the White House is saying that these are technical crimes, that we shouldn`t give it much weight. The fact that they`re concerned, is probably encouraging to those of us who think of what we know publicly is so outrageous and of criminal conduct and misconduct and abuses of power that we would hope that the report says something like that and perhaps does consider a recommendation of indictment because how political impeachment would be.
And I am concerned that Barr who was handpicked by the president may muzzle whatever is prepared in the days ahead. So I think these are pretty serious concerns and how the White House performs under this pressure will tell us what kind of crisis in government we have.
MELBER: Jason, as a student of Washington, this is starting to feel like something is coming.
JASON JOHNSON, POLITICAL EDITOR, THE ROOT: Yes, look this is winter is coming, the law is coming, Mueller is coming however you put it. This is the endgame everybody has been waiting for. And look, I understand that Mueller is apolitical. He just has a job to do.
But I always thought that the results of the 2018 election would determine how quickly we got this report between Democrats being in a position where they can do more investigations in the House and the fact that you now have Bill Barr who`s made it abundantly clear through numerous and sundry statements that he would try to do whatever he could to protect the president and that he questioned Mueller`s investigation, I`m not surprised they`re trying to put this out quickly.
They need to strike while the iron`s as hot if they want to have any chance of investigating or statewide investigations of some of the things in the report.
MELBER: John, if this reporting from the Washington Post tonight is correct and it echoes the other evidence I already presented, how do you interpret the inference that this report and probe would be concluding without an in-person interview with the president who is so central to many of the alleged and confessed crimes under discussion?
FLANNERY: Well, the hypothetical that you would test here is, were the answers he gave contradicted by the evidence that was collected by the special counsel? In other words, did he say one thing about the June 9th meeting that they can contradict or about the cover-up on the June 9th meeting on behalf of Don Jr.? And the fact that some people weren`t called, that follows a pattern, example Roger Stone, that the person who was targeted in the end and indicted and so forth wasn`t necessarily spoken to by the special counsel.
So I think -- I think this is going to be significant. We could guess about it but the -- I`ve always thought that this was a three-part story. And the first two parts were how they set up the system that the incumbent and the Oval Office used to get elected and properly, illegally, corruptly. And what he`s done since he`s been in office has been to obstruct the investigation at every turn.
I don`t see how those two subjects don`t get discussed. And past presidents who found themselves in trouble, there are cartoons and satires about it. They found that the cover-up was always worse than the underlying crime in terms of the direct evidence they had to prove what they had done corruptly, illegal, and so forth.
MELBER: And Jason, what is the environment in the House when we talk about the Mueller report under the rules it`s only confidential. But what`s been intimated and what the Post is signaling out without directly reporting tonight, is that there seems to be a joint plan to get something that would be going to the Congress in an unclassified version that goes to the public. How will the House take this?
JOHNSON: Oh, it will be huge. You will have every single Democrat and every single state that Trump has ever done a business in investigating this document to see what they can give local and state prosecutors. This is absolutely huge. And Ari, as we were sort of talking about before, this larger idea of whether or not the president can be indicted because that`s really the next step after whatever this report gets released.
That`s why he wanted Gorsuch. That`s why he wanted Kavanaugh because clearly people in the Trump administration believe that you know, like they`ve been lying all along saying, hey, the president can never get arrested for nothing domestic. We don`t have anything to worry about. But if they weren`t worried about that, they wouldn`t have been so obsessed with putting somebody like Brett Kavanaugh on the bench.
So I think the Mueller will make at least one suggestion for some crimes being worthy of indictment. The Democrats in the House will argue for that. And then this is going to be a huge legal battle that could run all the way to 2020.
MELBER: Well, and when you refer both of you to what the Democrats have said about obstruction, there are many prominent Democrats including chairs of key committees who are of the view that the president has effectively obstructed and witnessed tampered in public. So they are already on the record on that. The ending of the Mueller report is at the minimum a public inflection point for something that as we reported earlier tonight has traditionally been dealt with, with regard to the president`s conduct in the House first not in a grand jury.
John and Jason, thanks to both of you on the breaking story.
JOHNSON: Thanks, Ari.
MELBER: Straight ahead, we have a lot more. My original fact-check report on why Donald Trump`s emergency is based on falsehoods that you should know the details about.
MELBER: There are all kinds of arguments against the national emergency that Donald Trump declared believe it or not just less than a week ago. But before you get to any of the legal ones or the rhetorical ones, what about the entire stated rationale for emergency powers? The claim from Trump and his allies that rising immigration of the southern border has reached crisis levels, it is not true at all and you hear it a lot.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: There is a growing humanitarian and security crisis and our southern border.
SEAN HANNITY, HOST, FOX NEWS CHANNEL: The crisis at our southern water is growing more serious every day.
UNIDENTIFIED FEMALE: We see what happens. We have a large influx of people on the southern border.
KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: Unaccompanied children are poring over, trying to come through the border in ways that we`ve never seen.
LOU DOBBS, HOST, FOX BUSINESS NETWORK: We in the last month just returned to the highest levels of illegal immigration across our southern border.
(END VIDEO CLIP)
MELBER: That is false and not in a minor or nuanced way. It is what we fact checkers call super false. Immigration to the southern border isn`t it an all-time high. It`s near all-time low. And it`s actually worth mastering these facts as America begins a very long Trumpy debate over his wall money.
Look at the federal data here from past administrations all the way up to the Trump administration. Under a million people were basically caught crossing the Mexico border in 1980. A figure that grew in the 80s spiking in 86. Over the next decade, the 90s, you can see some fluctuation and a trend upwards. This shows the recent peak for immigration which is not now or 2016 when Trump ran. It`s almost two decades ago. Because then as you go towards 2000, you have this decline dropping lower than even those 80s levels.
And then here is the current era. From 2010 until today, some of the lowest numbers on record including 2017 which was the single lowest Mexican migration since 1980 with a small uptick last year far below all the other tall bars you see on the left.
So regardless of ideology, whether you like the idea of the president seizing money that Congress didn`t authorize for a wall, or for school lunches, or solar panels, whatever you think of that part of the debate, these facts are not a debate. These are the facts about declining immigration from Mexico into the U.S. and from the border, to the streets, to the Beltway. We have to keep it real even if other people are fronting.
As the great Shawn Carter once wrote, my name is just the facts while the rest of you all just adjust the facts. Put words together just to match, I say what`s real. We all adjust to that. So just the facts tonight.
Here`s another one you need to know. America now sends Mexico more people than they send to us. So over a five-year stretch, you can see it right here about 800,000 Mexican citizens came here and a larger number, a million Mexicans who were in the U.S. were going back to Mexico. This is what is called net negative migration.
Or another simple way to look at it, as you can see, a red arrow is the 800,000 Mexican immigrants that have come over to the U.S. over several years. But the green arrow is the larger number, a higher number of people returning to Mexico. That is another fact that shows immigration is just simply as a matter of facts and history in decline right now.
And that is at odds with Donald Trump`s long-running false claims about immigration to justify a wall that was pledged on the basis of another false claim that Mexico would fund a wall. A whopper so laughable Trump himself he used it as a punchline when he hosted SNL as a new candidate in 2016. The proof Trump knew he was lying and was in on the con as he milked this idea that a pledge would ever be paid by Mexico. He milked it as a joke.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Mr. President, the President of Mexico is here to see you.
TRUMP: Oh, that`s great. Send them in.
UNIDENTIFIED MALE: Donald!
UNIDENTIFIED MALE: I brought the check for the wall.
TRUMP: God, it`s so --
(END VIDEO CLIP)
MELBER: Very funny. The real joke though is serious. The joke the Trump played was anyone who believed that his supporters, and then he played a joke on himself by setting such high expectations he could never fulfill them even when he controlled the Congress with his Republican Party and boxing himself into an unfunded corner, a wall that he can`t pay for to which now requires new falsehoods about immigration which is actually declining. Which brings us full circle back to a Jay-Z dichotomy.
The choice between adjust the facts or just the facts. When you`re given that choice in the Trump era, I`m telling you every time the best thing is to stick to just the facts. I wanted to share those facts with you, and when we come back as promised an announcement on Andy McCabe next.
MELBER: The big news this week are the reports includes that Bob Mueller might be wrapping up his probe which makes it a fitting time to talk to a former acting FBI director who helped launch the probe, Andrew McCabe. He will be my guest on THE BEAT tomorrow. We`re going to talk the law, we`re going to talk Russia, we`re going to talk Mueller probe as well as all kinds of issues about him, Comey in 2016. I promise you it will be a real interview. Nothing off limits on THE BEAT tomorrow, 6:00 p.m. eastern.
That does it for us. HARDBALL starts right now.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END