Constitutional crisis: Dems talk fines. TRANSCRIPT: 5/10/19, The Beat w/ Ari Melber.

Guests: Basil Smikle, Markos Moulitsas, Melissa Murray, John Flannery,Susie Essman

HALLIE JACKSON, MSNBC HOST:  Nine years young in our hearts.  Chuck will be back next week with more MEET THE PRESS DAILY.  But "THE BEAT WITH ARI MELBER" kicks off as we speak.  What a treat to see you in the flesh, my friend.

ARI MELBER, MSNBC HOST:  Great to see you.  And we`re going to party like it`s your birthday.

JACKSON:  As I know you always do.

MELBER:  Have a great weekend, Hallie.

JACKSON:  You too.

MELBER:  We have a big show tonight.  Rod Rosenstein`s last week on the job.  Of course, he was there in a senior position at every big juncture of the Russia report.  I have a very special report tonight and it may break some news for you.

Later, Susie Essman from Curb Your Enthusiasm is here for a very special Fallback Friday.  But we begin with breaking news.

A top Democrat today, the chair of the House Ways and Means Committee dialing up the heat trying to get Donald Trump`s taxes, sending a subpoena, this is new, to Treasury Secretary Steve Mnuchin and the IRS commissioner for six years of Trump`s personal and business tax returns, demanding the documents in the next week.

Mnuchin was spotted entering the West Wing earlier today.  We don`t know exactly what they were discussing.  But he has missed multiple deadlines from other Democrats.

You may remember, this is something that`s been pursued by multiple committees.  And he said that the original request for these Trump tax returns which are, of course, required under federal law in his view had no "legislative purpose".

Now, all of these caps a week that has been, of course, dominated by the historic contempt vote for Donald Trump`s attorney general.  And I could tell you tonight it is also now ending not only with this tax fight but with other Democrats saying they`ll fight fire with fire, warning of a separate contempt vote for the man who served as Donald Trump`s White House counsel and as Bob Mueller`s star witness, we`re talking, of course, about Don McGahn.

(BEGIN VIDEO CLIP)

REP. JERRY NADLER (D-NY), CHAIRMAN, HOUSE JUDICIARY COMMITTEE:  We`ve subpoenaed McGahn and we`re expecting him to show up on the 21st.  And if he doesn`t, he will be subject to contempt.

(END VIDEO CLIP)

MELBER:  The Democrats are pushing forward on what appears now to be a multi-front strategy to both punish and try to deter Donald Trump`s threats of defying all the subpoenas.  And you have now the prospect here on record of potentially multiple contempt votes against this administration`s alleged defiance.

Democrats warning they`re going to counter that defiance not only with jail time but also now, get a load of this, with the prospect of major fines.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA), CHAIRMAN, HOUSE INTELLIGENCE COMMITTEE:  It`s far more practical to consider levying individual fines on the person, not on the office until they comply.  The courts use that practice.  I think it`s quite successful.  You could fine someone $25,000 a day until they comply and that will probably get their attention.

MIKE ALLEN, EXECUTIVE EDITOR, AXIOS:  And can you do that?

SCHIFF:  We can do that.

(END VIDEO CLIP)

MELBER:  Democrats are arguing that this tough but practical legal strategy may provide something of a middle ground between doing nothing and beginning impeachment proceedings now.  But I want to tell you, as we dig into this, there are other progressives arguing that there isn`t much value to "middle ground" when dealing with this president, Mr. Trump, and that Congress makes a big bet if they let him get away with what many Democrats agree, wherever they are on impeachment, what many Democrats agree on is that they say there is this criminal evidence outlined in the Mueller report.

And leaving that unaddressed doesn`t leave things at neutral, it invites further misconduct because you don`t have any deterrents against the conduct that`s been exposed.  Now, if this sounds familiar, consider it`s because it`s basically the central premise of deterrence theory.  It`s why, someone you may remember, the hawkish Don Rumsfeld always repeated the basic explanation, weakness is provocative.

(BEGIN VIDEO CLIP)

DONALD RUMSFELD:  Today, it should be clear that not only is weakness provocative but the perception of weakness on our part can be provocative as well.

(END VIDEO CLIP)

MELBER:  A perception of weakness.  And then almost as if on cue during this debate that I`m narrating for you, you have Trump critics today pointing to these absolutely stunning statements from not just a close aide to the president or a political hack but from the person charged with the criminal defense of this president, Rudy Giuliani, who openly admits now that he will be heading to Ukraine and he wants to meddle in investigative probes there for the explicit and stated purpose of helping Donald Trump`s reelection.

You know, the Democrats` oddest talking point this week may have been the claim that the president is inviting impeachment, as if this uniquely congressional measure to potentially hold him accountable is also up to him, up to Donald Trump.  No matter what happens here -- and as you know, if you ever watch this show, we don`t predict what`s going to happen.

But constitutionally, it is Congress that will make this call if there is a call to make.  And there are, as we`re seeing here, there are at least I think some signs as this particularly dramatic week draws to a close that there are Democrats inching now towards the deterrence position and that`s with or without this Trump-Giuliani reindeer games.

(BEGIN VIDEO CLIP)

SCHIFF:  Whether it would be successful or not, you have to consider any remedy to fight that unlawful action.

REP. TED LIEU (D-CA), JUDICIARY COMMITTEE:  If the Trump administration is going to completely deny every single congressional subpoena, then every option has to be on the table.

(0:00:24) 10 We have been working methodically through a process to investigate the facts.  It seems to me that it`s the administration who is pushing us toward impeachment.

(END VIDEO CLIP)

MELBER:  I`m joined now by the Markos Moulitsas, the founder of the progressive website Daily Kos and a longtime political professional, NYU Law professor Melissa Murray and Basil Smikle, the former executive director of New York State Democratic Party.

I don`t want to put anyone in a box but you are on cable news and each of you are in something of a box.  And so I set up our panel here tonight this way because, Basil, I look at you as a very conventional Democrat, no -- we`ll stay in boxes, bring them back.  There we go.

Basil is a very conventional Democrat having run a party in a big state.  And Markos is known for pushing the party.  And so I thought let`s -- and Melissa is, of course, a legal expert.

I thought let`s have the conversation, Basil, is it time for impeachment?  And if not, what is the Democratic Party position explaining why not coexisting with what I`m hearing from almost every Democrat we know in Congress which is that there is overwhelming evidence of criminal conduct in the Mueller report.

BASIL SMIKLE, FORMER EXECUTIVE DIRECTOR, NEW YORK STATE DEMOCRATIC PARTY:  Well, I actually take Nancy Pelosi`s position which she made at the Cornell Club earlier this week and I was there, that there is some sense that the president is goading, and she used the word goading, that is taunting to try to get Democrats to pull that impeachment trigger.

I do think there are some elites in our party and there are grassroots in the party that actually also want that.  The question is where are most of the American people in the middle there?  Are they really at a point where they want impeachment?

And I think what the Democrats are doing right now is very smart.  Without going that far, you get as much evidence as you can to make the case, to go to the American people and persuade them that this is the right direction to go in.

Even in New York State here, you have the state Senate creating legislation to go and get Donald Trump`s state taxes.  So this is happening on multiple fronts.  And I`m convinced that at some point in time -- if there`s enough evidence there, number one, and Nancy Pelosi says go out and start persuading the American people, we`ll get to that point, but we`re not there yet. , MELBER:  Markos?

MARKOS MOULITSAS, FOUNDER, DAILY KOS:  I know I`m supposed to have a box here.  I kind of agree, though.  But I don`t see it as an either/or situation.

I mean these are investigations, this is information that would thieve into any impeachment proceeding moving forward.  So there`s no magical impeachment power that suddenly makes these tax returns available to Democrats.  They still have to go through this legal process because Republicans are doing everything else possible to stymie and obstruct.

So you got to go through this stuff.  And we`re going to find information and I got to say, ultimately, my goal isn`t impeachment that will then die in the Senate because there`s not going to be a conviction in a Republican Senate.  I want to see that whole Trump clan in prison.

So to me, any information that leads to that, in the end, is a good thing.  So I`m saying like bombs away, like a subpoena, contempt, all of that.

MELBER:  And Markos, when you look at some of the groups, and you`ve done a lot of work with the grassroots, justice Democrats and other groups, they are saying it`s time to impeach.  What do you think is the key for Democrats to navigate this?

MOULITSAS:  Well, part of the problem I think is the misunderstanding about what impeachment is.  I think people think, you impeach, Trump is gone, not realizing that impeachment is that first step towards a Senate trial.  And we do not have the votes in the Senate for any kind of impeachment.  Republicans will protect Trump.

They`re bought and paid for by the Russians.  That is who they are.  So to me, it`s about laying the ground, one, to expose Donald Trump`s crimes heading into that next year`s election, showing base Democrats that we`re fighting as a party that they work their butts off last year to elect a House that is going to deliver for them.

And they can`t legislatively so let`s do so investigatively.  And ultimately, it`s realizing that it`s a base election next year, motivating our people to turn out because Trump`s people are going to vote no matter what.  They`re already at a hundred percent.  Nothing Democrats can do will make them even more motivated to turn out than they already are.

MELBER:  And Melissa, first of all, for viewers to know there were some audio technical difficulties.  So I`m going to flag full disclosure, she couldn`t hear everything but we got it fixed.  Just protecting you to say.

Second of all, what do you make of what does appear to be the escalation in the legal strategy by the Democrats in Congress against the backdrop of this discussion we`re having about using the impeachment power or not?

MELISSA MURRAY, LAW PROFESSOR, NYU:  Well, yes.  And this seems to be trying to find a middle ground.  As Markos says, impeachment isn`t the end result.  It`s a process and it`s an investigative process and one that right now doesn`t seem that will end in the Democrats` favor because they don`t have the votes in the Senate.

But again, if you can lay out the evidence, if you can show that there is a history of noncompliance or outright defiance by the president, maybe that raises issues for middle of the road Democrats and it certainly mollifies the hardcore Democrats who have always seen impeachment on the outcome.

MELBER:  And what about what we`re calling the deterrence argument here?  I mean the notion that after all this -- I`ve spent time with the Mueller report.  Part one is decent from a criminal legal perspective for the White House.  It is.  People don`t like the conduct, that there`s a plain conduct you don`t like.  But from a criminal legal perspective, I think it`s decent.

Part two is highly incriminating.  But if you don`t do enough, then do you risk allowing these things to go on?  I mean I want to play for your analysis Chairman Nadler today talking about what Rudy Giuliani is doing, which is I don`t think it`s a victory lap.  I think it`s quite incredible.  Here is Chairman Nadler on seeking Ukraine`s help.

(BEGIN VIDEO CLIP)

NADLER:  We`ve come to a very sorry state when it`s considered OK for an American politician, never mind an attorney for the president, to go and seek foreign intervention in American politics.

(END VIDEO CLIP)

MURRAY:  So first, I want to push back that the first part of the Mueller report wasn`t something that we should be worried about.  The Mueller report in its first part found that there was systemic and broad interference with the election by the Russians.  They could just find no evidence of collusion with the Trump administration.

MELBER:  Right.  Let me be clear.  I appreciate your pushback.  I`m referring to the notion of the president`s involvement in a conspiracy.

MURRAY:  Fair.  But --

MELBER:  The other parts obviously is why you`re dealing with this Russian meddling that is an ongoing national security part.

MURRAY:  But they`re totally interrelated.  The reason why you have the obstruction is because you don`t want the collusion.  It`s all kind of intertwined.

I mean you can`t have the obstruction without the evidence of collusion to keep it back.  So I mean these are intertwined.  And so I just want to just pushback that there are some sort of exoneration if you will in the first part of the Mueller report.

MELBER:  But there`s no chargeable election conspiracy.  And I just want to be clear.  You pushed me again but this is what we do sometimes on the show.

You had a Democratic Party that spent a lot of time acting as if the election conspiracy was either proven or coming and Bob Mueller didn`t find it at a criminal level.

MURRAY:  Not at a criminal level but then there`s all of this evidence of obstruction which he cannot charge the president with because he`s a sitting president.  So now you have this lawless spectacle where the president is actually above the law because there`s nothing that you can do in a criminal context and the only avenue available is for Congress to go forward with impeachment hearings and this is the big question here.

And I think you`re exactly right, this leaves open a lot of room for the administration to just play chicken.  This is a game of brinksmanship between the administration and with Congress.  And honestly, it`s shaping up to be a first-rate constitutional crisis.

MELBER:  Markos, do you want to pushback on anything?

MOULITSAS:  Do I want to pushback?  No.  No.  I mean, to me -- I mean the idea that the administration is exonerated is absolutely absurd.  I mean we know that you had Manafort sharing polling information with the Russians.

So there is a sense that the two entities were working together.  And now, of course, there`s a criminal case to be made, that there`s standards of evidence and beyond a reasonable doubt, all that stuff.

So that`s why Mueller didn`t seem to want to go there, but the fact is that they were working together I think is pretty obvious.  And even if it doesn`t reach that level of criminal conspiracy, the idea that Republicans would be totally OK if Hillary Clinton was doing the same thing with the Chinese or the Canadians or even the Russians is patently absurd.

So this notion that they`re like, oh, there`s nothing to see here when they literally conspired with a foreign power and one that is hostile to United States` interests in order to get Donald Trump elected and they`re totally OK with it is absolutely patently absurd.

And so I`m less concerned about that standard than I am about just -- with the optics of it all and the narrative of it.  It is incredibly damning to Trump.

And the fact is Republicans don`t care, Democrats do.  None of it matters because, in the end, we`re so partisanized as a country that next year the candidate who wins is going to be the one who gets his or her base out more than the other side.

SMIKLE:  If I may --

MELBER:  Almost out of time.  Briefly, Basil, please.

SMIKLE:  No.  Just to make a quick point about Democrats.  Listen, in Article III of the Watergate impeachment hearings, one of the charges was that the president didn`t respond to subpoenas.  That groundwork has sort of already been laid.

And what I think Nancy Pelosi is right to do is temper expectations.  The call for impeachment is not nearly as odious as the calls on the right for lock her up.  And as long as we keep it to that point and lay out a very good substantial case, that`s where we can start persuading the American public that we`re ready to pull this trigger.

MELBER:  Very interesting to hear from each of you in your perspective.  Markos, Melissa, and Basil thank you.

MOULITSAS:  Thanks.

MELBER:  Coming up, we have a lot of stuff, including, as promised, my special report on Rod Rosenstein.  He wrapped up his tenure in government today.  He`s leaving behind quite a troubling record.  I`m going to get into all of it.

And we spent days digging through the archives to find the tapes that some of these politicians might not want you to see including some serious GOP flip-flops about presidents obstructing justice.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL:  The president has engaged in a persistent pattern and practice of obstruction of justice.

We don`t want a president lying in office.  We don`t want obstruction of justice.

(END VIDEO CLIP)

MELBER:  And tonight, comedian Susie Essman from Curb Your Enthusiasm joins me for her BEAT debut along with our colleague Kate Snow for a very special Fallback Friday.  That`s tonight.

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

(COMMERCIAL BREAK)

MELBER:  Now, to our special report tonight.  An accounting of the most influential deputy attorney general in recent history to be sure, if not of all time, Rod Rosenstein.  And we couldn`t do this full report until this week because this is Rosenstein`s last week on the job.

An earlier accounting could have easily been quite incomplete considering that Rosenstein has zigged and zagged in his role overseeing what is supposed to be a very special independent probe, Special Counsel Mueller`s probe.  Because he ultimately helped Bill Barr land the plane, as they both used that phrase.

And the two were all smiles at something I want to show you right now, this cozy Washington event that just occurred this week that marked Rosenstein`s last formal day at DOJ headquarters and because of Trump`s attacks on the Mueller probe, tested virtually every major official law enforcement.

This gathering looks like a who-who -- who`s who I should say of the Russia`s investigation, from FBI Director Chris Wray who Trump tapped after firing James Comey to Jeff Sessions, the A.G. whose campaign ties led DOJ`s ethics office to recommend he recuse from the whole probe which put Rosenstein in charge, to Bill Barr, a former attorney general who took the job back after Trump ousted Sessions.

And Barr gave quite the tribute to Rosenstein, a very public indication that no matter how Rosenstein began this process, he ended on team Trump.  Keep in mind, this whole scene is unfolding against quite the backdrop, the public facts that Barr misrepresented key parts of the Mueller report before ever releasing, Congress moving forward on holding Barr in contempt.

While Congress hasn`t formalized its final reaction to Mueller`s report, it`s still seeking testimony from, yes, some of the people in the room you`re looking at including White House Counsel Don McGahn.  So with all of that going on, those law enforcement leaders who you just saw, they didn`t just joke around at this thing, which could be understandable at a send-off or a retirement party.

Watch as they make the serious and unresolved matters of the Russia probe a joke itself, Barr minimizing his own contempt vote as others treated this whole probe as a punch line.

(BEGIN VIDEO CLIP)

JEFF SESSIONS, FORMER ATTORNEY GENERAL:  When we came in, I had no doubt, Richard, there would be a lot of controversies during my tenure.  But in truth, I have to say our run exceeded my expectations.  Considerably.

WILLIAM BARR, ATTORNEY GENERAL OF THE UNITED STATES:  There has been a debate raging for the last few months and I think we have to get it resolved and decided tonight.  And that is which one of us is capable of the most deadpan expression?

(END VIDEO CLIP)

MELBER:  Ha ha ha ha.  But is that funny?  It is literally a reference to Rosenstein`s now famous expression during Mr. Barr`s presser, which was proven to be misleading at best.  That attention was not superficial.  It was not about Rosenstein`s style or mood.

What you`re looking at on your screen was the very real question about whether that person there, who once proclaimed the core import of an independent probe, was really fine with what Barr was doing in front of the country.  People searching his face for, are you OK with this?

Now, Rosenstein has had a long career at DOJ.  We should note.  He worked in the department since 1990, a 12-year stint under two presidents as the U.S. attorney.  And he has handled many important cases, ably according to his colleagues.

But right now, he is best known for his most senior position, overseeing this probe.  And it started remarkably.  Rod Rosenstein helped execute Trump`s firing of FBI director Comey.  And then Rod Rosenstein ordered an independent probe into that firing.

And until recently, Rosenstein`s defenders arguing, well, that sounds weird but it was because Trump used Rosenstein.  He was a victim in the unusual firing.

And now we have the Mueller report and that shows that defense doesn`t hold water.  It shows that Rosenstein knowingly helped Trump pull off the misleading firing, writing the memo that didn`t tell the whole truth about it and that Rosenstein was on notice in advance.

We know that Rosenstein allowed himself to be manipulated by Trump because the report proves Rosenstein knew from the start Trump wanted to fire Comey because of Russia, as Ben Wittes explains in a new piece about the Mueller evidence.  And it shows Trump asked him explicitly to include the Russia stuff in his memo about Comey and Rosenstein pushed back.

And Trump said, "OK.  But I`d really appreciate it if you put it in the letter anyway", which means Rosenstein knew Comey would be terminated when he wrote his letter.  He even told colleagues his own reasons to critique James Comey were "not the president`s reasons".

That was the reality behind the scenes as White House officials went out publicly about this suddenly controversial firing, tried to pin it on Rosenstein.  And they knew, some of them, that it was Trump who was asking Rosenstein for the whole cover story.

(BEGIN VIDEO CLIP)

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT:  He took the recommendation of Rod Rosenstein, the deputy attorney general.  Rod Rosenstein was confirmed just 14 days ago by a vote of 94-6 by our United States senators.

SEAN SPICER, FORMER WHITE HOUSE PRESS SECRETARY:  No one can question Rod Rosenstein`s credentials.

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY:  Rod Rosenstein, who everybody across the board has unequivocally said this guy is a man of upstanding character and essentially the gold standard at the Department of Justice.

(END VIDEO CLIP)

MELBER:  Gold standard.  Consider this because it`s weird how these things happened.  All of that might have stopped right there, another White House lie that they sort of get a weight of.  But Rosenstein was livid watching those folks shred his credibility, blaming him for something that he knew Trump requested.

Mueller report noting that Trump even pressed Rosenstein to then hold a press conference to back up the clips you just saw, to back up the lie and Rosenstein responded that was not a good idea because if the press asked him, he would tell the truth that Comey`s firing was not his idea.

So Rosenstein was fine with Trump firing Comey because of the Russia investigation.  He at least knew that was the plan from the start.  He went along with it.

What he didn`t like -- this is so important as everyone talks about his tenure -- he didn`t like getting blamed for it.  So it was just eight days later, a little over a week, that Rosenstein appointed Mueller to try to clean this all up.

And Mueller in the report shows how it happened, Jeff Sessions sitting with Trump literally trying to interview for a new FBI director in that tense time and Rosenstein calls.  So Sessions steps out of the oval to take this call from his deputy, who is of course in charge of the Russia probe and tells him about the special counsel appointment.

Now, as you know, you don`t just interrupt a meeting with the president unless you have huge news.  Rosenstein called Sessions because he knew he had to tell him immediately even if he was with the president and he knew he was dropping a bomb.  And now we all know how the president reacted when he got Rosenstein`s news delivered via Jeff Sessions.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Oh my, God.  This is terrible.  This is the end of my presidency, I`m fill in the blank.

(END VIDEO CLIP)

MELBER:  His response was this is "the end of my presidency.  I`m F`d."

(BEGIN VIDEO CLIP)

STEPHEN COLBERT:  He said, "I`m [bleep]."  And what we obviously don`t know, whether Trump will face any repercussions from this report.  I`d like to just live for a little longer in the moment of him saying, "This is the end of my presidency, I`m [bleep]."

(END VIDEO CLIP)

MELBER:  That got everyone`s attention and it was in the report.  But what was Trump so concerned about among other things?  You know we don`t show a lot of Trump tweets on this show but he did explain his thinking succinctly, any tweet, a month into the probe.

"I`m being investigated for firing the FBI director by the man who told me to fire the FBI director."  And he was onto something there because he was being investigated over the Comey firing and while Rosenstein may not have had the whole idea, he was in the on the initial cover story for it.

That strange dynamic would continue because, on the one hand, you have Rosenstein doing what Trump asked.  And on the other, you have him overseeing and initially saying he was going to protect the independence of the probe Trump hated.

(BEGIN VIDEO CLIP)

ROD ROSENSTEIN, FORMER DEPUTY ATTORNEY GENERAL:  There were people who have been making threats privately and publicly against me for quite some time and I think they should understand by now the Department of Justice is not going to be extorted.  Any kind of threats that anybody makes are not going to affect the way we do our job.

(END VIDEO CLIP)

MELBER:  Not going to affect the job.  But Comey in his own observation about Rosenstein telling a friend, "Rod is a survivor so I have concerns."  In recent months, these concerns have shown exactly what Rosenstein is made of.

Because right in the middle of the probe with months before it was over, credible reporting suggests from multiple sources that Rosenstein did something that is not OK, telling Trump that he was on his team and promising the subject of this open investigation, that he`d be treated fairly in this private huddle and that he was making those promises while fighting for his own job and then assuring Donald Trump, I`m the one, I can land the plane.

When it was all over and Mueller found at least five instances of "substantial evidence" that Donald Trump had the intent to commit crimes, Rosenstein basically didn`t deal with it in any serious way and then went along with Barr and his statement to the public saying there wasn`t evidence to establish the president committed an obstruction of justice offense.

Rosenstein then, of course, standing by Barr, not a punch line.  And watch Mr. Barr further mischaracterize what Mueller found and then said it was bizarre anyone would say Barr was misleading.  Rosenstein hands it in his notice and then he went out of his way to praise Trump, saying not only was he grateful for the opportunity to serve but for the courtesy and humor Trump displayed in their, yes, personal conversations.  And then saying -- and this is really more political than DOJ language, "America first".

One of the strangest things about all that praise is another episode in this Rosenstein tenure because he had the land the plane conversation with Trump after the "New York Times" reported that Rosenstein was considering wearing a wire to tap the president.

Now, some said it was maybe sarcastic.  There was that defense.  We weren`t in the room.

Rosenstein did call the story inaccurate but didn`t really fully reject the idea that he would discuss taping the president.  Rosenstein, who was a prosecutor for decades, is at least on record as in basically thinking that he needed to treat the president like a criminal suspect at that time.

So whatever you think of Trump, there`s something there that Rosenstein saw that justified those tactics.  And yet Rosenstein was later so concerned about Trump`s conduct that how do you go from that to telling Donald Trump you`re going to land the plane?  Is that appropriate?

It`s, of course, human nature to care about how everything looks, and you expect that from all sorts of people to want to protect their legacy in real time.  But that`s not what she`d generally want from a prosecutor.  And Rosenstein, he wanted to look tough in public.  He appointed the Special Counsel when he was under fire.  Then he publicly said he wasn`t going to be extorted.

But the problem as we take it all together tonight is that in private when the stakes were the highest, it appears that he bowed under pressure.  And the question becomes on Rosenstein`s last day here at the Justice Department.  Does Rod Rosenstein even pass the publicly stated Rod Rosenstein test.

(BEGIN VIDEO CLIP)

ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL, UNITED STATES:  And I think they should understand by now the Department of Justice is not going to be extorted.

UNIDENTIFIED FEMALE:  "I give the investigation credibility, Rosenstein said.  I can land the plane."

ROSENSTEIN:  Any kind of threats that anybody makes are not going to affect the way we do our job.

UNIDENTIFIED FEMALE:  Rosenstein`s resignation letter today went out of its way to compliment and thank President Trump for the President`s demeanor and attitude and courtesy toward Rosenstein during their "personal conversations."

WILLIAM BARR, ATTORNEY GENERAL, UNITED STATES:  It was the conclusion of a number of people including me and it was also the conclusion of the Deputy Attorney General Rod Rosenstein.

ROSENSTEIN:  The key to living a life of integrity is to take ownership of the consequential decisions.

(END VIDEO CLIP)

MELBER:  Rod Rosenstein served for 29 years at DOJ and worked on many important cases as mentioned.  But apply that standard there.  Did he own his most consequential decisions at the time when he finally had managerial authority?  No.  He buckled to Trump in the initial Comey firing.  He tried to fix it with an appointment that while vital, increasingly looks more like something he made partly out of personal calculus at the time.

If Mr. Rosen Stein has better explanations for any of this, he will have to go beyond the limited interview he did with his own subordinate Bob Mueller for the report.  He`ll have to address the public either before the Congress which could happen or in some sort of public substantive interview, because right now the answers don`t look very good.  We`ll be back with a lot more on this in just 30 seconds.

(COMMERCIAL BREAK)

MELBER:  Breaking news on the heart of the obstruction issues facing President Trump.  The New York Times reporting within this hour here that twice in the last month the White House formally asked White House Counsel Don McGahn to declare that Trump never obstructed justice.  The former counsel McGahn reportedly denying these newly discovered requests and that, The Times reports, angered the president.

McGahn has been of course Mueller`s key witness.  His name appeared more than any other individual in the lengthy redacted report.  I`m joined by former Federal Prosecutor John Flannery.  What do you think of this story?

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR:  It`s a hydra-headed story.  Every time we turn and they cut off one head, two heads replace it that has to do with some form of obstruction or misconduct or outrageous unconstitutional conduct.  McGahn belongs to the number of lawyers if we look back to Watergate who are the truth tellers.  The ones who stand by their integrity no matter what the pressure and tell us what happened even despite partisan preferences perhaps to do otherwise.

So twice in the recent month, we have Trump going to him and saying, say I didn`t obstruct, say I didn`t obstruct.  And the report says that twice he declined to do so because it wasn`t true.  And then we have the other lawyers.  We have Barr and we have Rosenstein and those people who I think will be brought down ultimately.

And the saddest thing, of course, is that we have people on the Hill that don`t think that we`re at a point where we should be investigating impeachment.  It`s outrageous.

MELBER:  Reading from The Times article, John, it says they asked twice, the White House in the past month for the key witness against President Trump Don McGahn to say he never believed the President structured justice. 

I think what`s most important about that is that Mr. McGahn`s conduct in defying the President`s orders to oust Mueller and calling his own personal lawyer and planning to resign and packing his things, all things we know from the Mueller report suggest that he did believe there was at least to put it in a lawyerly way, there was at least liability, the possibility that he was being asked to participate in a crime.  You don`t have to call your lawyer every normal day at work at the federal government.

  FLANNERY:  Right.  Well, I think it says something else that the story`s been going.  He wants us to bring on impeachment.  This says exactly the opposite.  He is very concerned to control the evidence, to control the subpoenas, to control everything because he does not want impeachment.  This is a man that gets swatted on the back with a Forbes thing for the money he doesn`t have.

What do you think he feels about the presidency?  He is prepared to do anything it takes including sending Rudy Guiliani offshore in an unprecedented violation of our sanctity as a nation to have them interfere in our election when at the base of this investigation has been that the Russians interrupted our investigation.

MELBER:  And finally, John, what does it tell you about the strategy coming out of the White House which does know how to communicate, they do have messaging that they viewed the report as something not to be reckoned with as evidence but something to be bowled over?

In other words, they got Barr and Rosenstein as I was just discussing before you join me to do this.  And then McGahn would have for them been a sort of a trifecta that Trump understands headlines and he figured even debatable figures if you had enough of them saying basically no obstruction, they wouldn`t care, the public might not care as much that the report has at least five incidents of obstruction.

FLANNERY:  What it tells us is that they believe that this proves his guilt.  It also tells us that he believes he`s guilty because what we call consciousness of guilt is when you`re doing something to contradict the evidence that you did something wrong and he plainly has.

And he hears the people across the country saying those ten acts or others that we all saw because he does it out in the open.  He does all of his criminal obstruction out in the open.  You -- a ten-year-old understands what`s going on, and I say that without exaggeration.

MELBER:  Well, you said a lot of important points here.  I think the one that was most piercing was the idea that it is precisely their concern about what would happen if all these people spoke publicly talked -- testified that has them scrambling which is the opposite of the fake tough, oh impeach me, I dare you P.R. message, not the first time the White House would appear to have different messages some that are false.  John Flannery --

FLANNERY:  Well, the beauty --

MELBER:  I got to fit in a break.

FLANNERY:  Yes sir.

MELBER:  For Curb, for Susie Essman.  Flannery, thank you as always, sir.  Coming up, we have a breakdown of the sound Republicans may not want you to see including Lindsey Graham on abusing power and impeachment, there are receipts.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R-SC):  Let it be said that any president who cheats our institutions shall be impeached.

(END VIDEO CLIP)

MELBER:  And the only reason to ever leave Flannery, well, coming up tonight from the HBO show Curb.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  The kid is home, hysterical, because her doll Judy has been decapitated.

(END VIDEO CLIP)

MELBER:  Susie Essman and NBC`s Kate Snow are here.  Stay with us.

(COMMERCIAL BREAK)

MELBER:  Some Congressional Republicans have tried to downplay the President`s alleged felonies and they may have a problem.  It`s called video.  Senator Graham, for example, has been dismissive of the idea that Mueller found evidence of obstruction by a president.  Here is how he felt about a similar set of concepts being used against a president 20 years ago.

(BEGIN VIDEO CLIP)

GRAHAM:  He assaulted our legal system in every way.  Let it be said that any president who cheats our institutions shall be impeached.  The day Richard Nixon failed to answer that subpoena is the day that he was subject to impeachment because he took the power from Congress.

You don`t even have to be convicted of a crime to lose your job in this constitutional republic.  Impeachment is about cleansing the office.

He encouraged people to lie for him.  He lied.  I think he obstructed justice.

(END VIDEO CLIP)

MELBER:  Graham is not alone.  14 current Republican Senators are actually on the record for at least the concept that yes, presidents can face obstruction charges in office.  And in the 90s, you should see this regardless of where this all goes.  This is the tale of the tape.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY):  The president has engaged in a persistent pattern and practice of obstruction of justice.  The allegations are grave.

SEN. ROB PORTMAN (R-OH):  I believe the long-term consequences to this country of not acting on these serious charges before us far outweigh the consequences of following what the Constitution provides for.

UNIDENTIFIED MALE:  Either we are a nation of laws or we are not.  And if we are, then those laws have to apply equally to all people.

SEN. ROGER WICKER (R-MS):  The rule of law means that the commander-in- chief of our armed forces could not be held to a lower standard than are his subordinates.

UNIDENTIFIED MALE:  We don`t want a president lying in office, that we don`t want obstruction of justice.

MCCONNELL:  The investigation is legitimate.

WICKER:  Felonious criminal conduct by the President of the United States cannot be tolerated.

SEN. JOHN THUNE (R-SD):  He`s committed federal crimes and there must be a reckoning or no American should ever again be prosecuted for those same crimes.

SEN. RICHARD BURR (R-NC):  If we knowingly allow president to break laws while some Americans sit in jail for having violated the same statute, we weaken the very rule of law protecting us.

(END VIDEO CLIP)

MELBER:  Senator Burr there put it pretty well.  The point isn`t to pretend that everything here and these examples are the same, but the point is on the basic level of principles, the idea that presidents are not above the law or that obstruction contrary to Mr. Barr`s recent claims is something presidents can technically possibly do.

Well, that is actually clearly established as the view of so many of these individuals.  And then you get to the historical question Senator Graham, then-Representative Graham said history is the judge.

(BEGIN VIDEO CLIP)

GRAHAM:  The question I have is what will people 25 years from now say about impeachment trial?  Every senator voted and expressed themselves in the way that will stand in history and they`ll have to be answerable for their judgments as so will I.

(END VIDEO CLIP)

MELBER:  Mr. Graham gets the last word on that.  Up next Curb`s Susie Essman joins me and NBC`s Kate Snow for a special "FALLBACK" next.

(COMMERCIAL BREAK)

MELBER:  It`s Friday on THE BEAT and you know what that means.  It`s time to fall back.  I am joined now by actress and comedian Susie Essman.  You know her for movies like Bolt which she voiced the character Mittens and for her T.V. work including of course Susie Greene on HBO`s Curb Your Enthusiasm where she does a lot of this.

(BEGIN VIDEO CLIP)

SUSIE ESSMAN, COMEDIAN:  The kid is home hysterical because her doll Judy has been decapitated.

Out!  Out!  Out!  Get the hell out of my house you ingrate.  You hurt Sammy one more time, Larry.  Get the (BLEEP) out of my house.

You think we`re going to have a nice divorce if we ever get divorced?  No (BLEEP) way.  I`m taking you for everything you have, mister.

(END VIDEO CLIP)

MELBER:  And we`re also joined by my colleague NBC`s Kate Snow, Host of "NBC NIGHTLY NEWS" on Sunday.  She`s also won several Emmy Awards and has covered five presidential elections.

KATE SNOW, NBC NEWS HOST:  I`m really old.

MELBER:  Nice to have you both here.

ESSMAN:  Did you feel that when people give you credits, you`re just like, wow, I`ve done so much, I`m ancient.

SNOW:  Yes.

MELBER:  Why do you yell so much?

ESSMAN:  Why do I yell?  Larry always provokes me.  I don`t just yell willy-nilly, Ari.  I`m provoked, and then I have to -- he`s usually -- it`s usually about my kid or something, you know.  It`s usually justified.

SNOW:  People think you yell in real life.  Like they walk up to you on the street what -- you did yell an f-bomb.

ESSMAN:  They do, when I`m mild-mannered.

MELBER:  Well, how much of that character -- you say Larry upsets who you`re speaking is your character.

ESSMAN:  Yes, I don`t mean Larry David the real person, the show person.

MELBER:  You have to go slow with me.

ESSMAN:  Larry -- show Larry is always provoking Susie Greene.

MELBER:  And is Larry supposed to seem like he`s right or like he`s always wrong?

ESSMAN:  Well, Larry is usually right which is annoying.  He`s usually right.  It`s true.

MELBER:  Have you noticed that it seems like -- there`s a style part but then the underlying point --

SNOW:  Right.  That`s the whole point of the show, right, is that it`s all so --

ESSMAN:  Yes, his ethics are so --

SNOW:  -- so relatable.

ESSMAN:  -- so good.  You know, he has such good morality and ethics.

MELBER:  What do you think we can learn as a people from Larry David?

ESSMAN:  I think we could learn to say what everybody else is thinking but afraid to say.  I think we all need to speak up.

MELBER:  Susie, who needs to fall back?

ESSMAN:  This whole beluga whale spy thing, you know, this whole Russia has like it`s supposedly spying with a beluga whale, did you hear about this?

MELBER:  Yes, here we go.  This is real talk.

ESSMAN:  Yes.  Well, you know, I think --

SNOW:  Is it real?  I couldn`t tell.

ESSMAN:  We happen to know for a fact that the Russians like to align themselves with blubbery people, blubbery creatures with huge flow holes.  We know that for a fact.  It`s the redacted part of the Mueller report.

MELBER:  Wow.

ESSMAN:  Yes.

MELBER:  Good.  I mean, well done.

ESSMAN:  Yes, so enough with that.

MELBER:  What about you?

SNOW:  The Met Gala.  Did you see the -- I mean, right?  Every year --

ESSMAN:  Which people are dressing silly.

SNOW:  Really silly this time is the theme was camp this year, like being - -

ESSMAN:  Isn`t it always camp?

SNOW:  That`s Lady Gaga in one of --

ESSMAN:  She doesn`t need any attention.

SNOW:  She has like four different outfits.  I don`t -- I don`t even know who that -- and then --

ESSMAN:  Who is that, Cinderella?

SNOW:  Well, it`s supposed to be -- that`s Katy Perry.

MELBER:  But she`s dressed as the Ethan Allen homestead.

SNOW:  Exactly.  But there -- it`s like rich people needing just so much attention.

MELBER:  I think the Met can fall back.

ESSMAN:  You know what else bothered me this week that I don`t want to hear about?

MELBER:  Tell me.

ESSMAN:  I don`t want to hear about the coffee cup on Game of Thrones.

MELBER:  You`re done with that.

ESSMAN:  I`m done.  First of all, they drink coffee.  You know how many long hours they work to shoot that show and what goes on in that show, they need caffeine on that show.  So they drink coffee, what`s the big deal?

SNOW:  I don`t know.  I love the show.  I`m totally into it.  I`m on the edge of my seat.  But the coffee cup, it did bug me.

MELBER:  Well, what did you think of the HBO response which we have.  They said the latte that appeared in the episode "was a mistake, it was supposed to be an herbal tea."

ESSMAN:  I think they were -- they were being funny or trying to be funny.

MELBER:  Are you saying that HBO is not always funny?

ESSMAN:  No, they`re always funny.  They`re my -- they`re my -- I love HBO.

MELBER:  I have a decent fallback.  Have you seen they`re putting Fanny Packs on Crocs?  Two things that might not really be a good idea separately, a worse idea together.  What do you put in there?

SNOW:  I don`t know what you put -- lip gloss, I don`t know.

ESSMAN:  It doesn`t seem right to me.

MELBER:  An idea -- I mean, if you`re in a concert and you want no pockets and you`re in shorts and your I.D. is and in your Croc Fanny Pack.  But again, even saying Croc Fanny Pack makes it a little uncomfortable.

SNOW:  Well, my 16-year-old said is this is all -- first of all, you said mom, you don`t understand.  Like you don`t understand.

ESSMAN:  How many times in a day does she say that?

SNOW:  All day long.  You don`t understand.  You`re too old.  You don`t understand memes.  He`s like I won`t explain this to you but it`s a meme thing.  And I said, well is it -- is it a dead meme now?  And he`s like, just stop.

MELBER:  Well, it`s like -- Susie always says it`s like Will Smith said --

ESSMAN:  Yes.

MELBER:  Parents just don`t understand.

ESSMAN:  But you know what, can I say something.  They think that we`re just idiots, you know.  They just --

SNOW:  My son knows me as I`m an idiot.

MELBER:  I don`t.

ESSMAN:  They think we`re just -- they think we`re idiots.  And I think -- I think they`re lame, and I blame it on their bike helmets.  They wear to protect -- I don`t have a bike helmet when I was a kid.  I would have been left to Staten Island if I rode around in a bike helmet.

MELBER:  Are you saying that people who are children should fall back.

ESSMAN:  Absolutely.

MELBER:  OK.

ESSMAN:  Or they should get some respect.

MELBER:  Show some respect.

ESSMAN:  Yes.

MELBER:  Put some respect on my name as it were.

ESSMAN:  Who said that, Ari?

MELBER:  Who said that?  Birdman.

ESSMAN:  Oh, OK.

SNOW:  The movie -- the movie, right?

MELBER:  There was also a rapper named Birdman, a rapper.

SNOW:  Oh, sorry, sorry.

ESSMAN:  So you go rapper, I go Aretha.  So --

MELBER:  Well, and Birdman also famously said and this is fitting, are we finished or are we done.

ESSMAN:  That`s so profound.

MELBER:  You know, I`m a fan of both of you.  Thanks.  Hey, thanks for being here.

SNOW:  I`m going to kind of take this.

MELBER:  Susie Essman and Kate Snow -- take five.

(COMMERCIAL BREAK)

MELBER:  You know what we have on THE BEAT?  Musician, actor, and activist, Common.  He came by and talked about his new memoir and the sense of duty he feels about being open about his true reality with his fans.

(BEGIN VIDEO CLIP)

COMMON, RAPPER:  I feel as an artist as somebody who is in a public eye, we always show how great, you know, like we like -- OK, you won Oscar, you know, you got these Grammys, you do -- but we also have -- I feel like it`s my duty to show my flaws too and show my fears.

MELBER:  And that you`re struggling with certain things even as you have this other claim.

COMMON:  Exactly.

(END VIDEO CLIP)

MELBER:  The entire interview is now up on facebook.com/thebeatwithari as well as YouTube and msnbc.com if you want to see more of what we discussed.  I asked him about taking on Trump at the Oscars and why he said he knew it would bother the president.  You can check out the whole interview if you want online. 

But don`t go anywhere now.  "HARDBALL" with Chris Matthews is up next.

  THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END