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Impeachment investigation. TRANSCRIPT: 9/30/19, The Beat w/ Ari Melber.

Guests: Melissa Murray, Nancy Soderberg, Ted Lieu, Mark Green, JohnNichols, Neal Katyal

KATY TUR, MSNBC HOST:  And that will do it for me this hour. More MEET THE PRESS DAILY tomorrow. Be sure to catch my show weekdays 2:00 p.m. here on MSNBC. But now I leave you in the very, very capable hands of my good friend, Ari Melber and "THE BEAT".

Hey, Ari.

ARI MELBER, MSNBC HOST: Hey Katy, thank you so much. We begin tonight with this breaking news in Donald Trump`s widening Ukraine scandal. New report tonight on Donald Trump`s collusion scandal hitting now three key figures with attorney General Bill Barr on defense, Secretary of State Pompeo caught on this incriminating call, and congressional Democrats hitting Rudy Giuliani with a new subpoena.

Now those are all Trump figures, obviously, on defense as the House Intelligence Chairman Adam Schiff is taking the lead on offense in the Democrats multi-pronged impeachment probe, announcing they are very close to hearing testimony from this star witness, the whistleblower.


UNIDENTIFIED MALE: When you expect to hear from the whistleblower?

REP. ADAM SCHIFF (D-CA): Very soon. It will depend probably more on how quickly the Director of National Intelligence can complete the security clearance process before the whistleblower`s lawyers. But we`re ready to hear from the whistleblower as soon as that is done.


MELBER: as soon as that`s done. Now this matters, because unlike the Mueller probe where key witnesses such as Don McGahn were fighting to ever speak to Congress, here you have a person heading in, ready to tell all.

And meanwhile, there are also these new details emerging about Donald Trump`s secret effort to pressure Ukraine into targeting his political rivals. Fox News reporting, Trump lawyer Rudy Giuliani was not acting alone in these efforts to get dirt on Biden and saying Trump knew about it.


CHRIS WALLACE, FOX NEWS HOST: Two high-profile Washington lawyers, Joe diGenova who`s been a fierce critic of the democratic investigation and his wife Victoria Toensing were working with Giuliani to get oppo research on Biden. The only person in government who knows what they were doing is President Trump.


MELBER: That`s quite a bull`s-eye coming from Fox News. If the names are familiar that may be because they are also Fox News Contributors and Donald Trump basically was in discussions to try to get them to be on his Mueller defense team with Rudy Giuliani in that project.

So you have here three private lawyers now conducting what amounts to a shadow foreign policy to get political dirt, political favors and maybe abuse of power all in the name of Donald Trump`s re-election Trump, today, getting pretty defensive. He says he`s trying to find out who the whistle blower is.


HALLIE JACKSON, NBC NEWS, CHIEF WHITE HOUSE CORRESPONDENT: You now know who the whistleblower is sir?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, we`re trying to find out a whistleblower, when you have a whistleblower that reports things that were incorrect--


MELBER: Now the pressure may be getting to some of these senior Trump officials. Consider we`re still in a place before any hearings have begun into this that involved them directly. And heading into the weekend Donald Trump`s envoy to Ukraine resigned, the AP is reporting to people close to the attorney general, who basically are trying to put the word out to distance him from the Ukrainian scandal.

They say Mr. Barr is "Angry" over what Trump said - apparently not angry enough to publicly take questions on the matter. And there are other developments and angles we`re going to get into on this story in the rest of the night show with some great experts.

But before I go any further into what we might call some of the details and the weeds, I`m about to turn to my experts and a lawmaker now and I want to present you as we start this new week, and it`s not a normal week, with the bigger developments.

We have the United States House of Representatives barreling forward with what looks like now a full force impeachment probe with these new witnesses and with new subpoenas and warning any resistance to Congress will itself become evidence of impeachment. That`s a new level of engagement. We`re going to get into some of that in a moment.

But we also have news tonight that the Senate led by Republicans says it will hold a trial of President Trump if he`s impeached. I repeat, the Senate says it will hold a trial of President Trump if he`s impeached, because the rules require it.

And Donald Trump`s own cabinet members do not appear to be yet United publicly on whether their focus now is in saving the President or saving themselves. As promised, I turn to our experts on these big-picture issues.

From the United States Congress, Ted Lieu who serves on the Judiciary Committee; Ambassador Nancy Soderberg, former UN Ambassador, the Third Ranking Official on the National Security Council during the Clinton administration and NYU Law Professor Melissa Murray who clerked for Judge Sotomayor.

Good evening to each of you. Professor, I want to begin with you on the law. What does it mean when we see the sitting United States Attorney General trying to take a half step away and the Secretary of State here caught on that call. Are these individuals in your view looking at their own legal liability?

MELISSA MURRAY, NEW YORK UNIVERSITY LAW PROFESSOR: It would be hard for them not to at this point. I think we`ve seen over the last couple of months that Bill Barr has been incredibly close to the President, has almost functioned as a quasi-federal defender for the President in the Mueller investigation.

The fact that he`s taken steps saying that he`s surprised and angry by the President`s association with him in this event, suggests that he`s stepping back a little. And Mike Pompeo, will also have to think about what this means for him going forward. This presidency looks poised to at least go through the wringer with Congress and I think there are a lot of people who are trying to get out of the way.

Your interpretation of the Barr remarks, I`ll read them here, they are in The Associated Press attributed to someone close to Barr, but they`re not his words yet. And maybe that`s a very deliberate strategy on his part. It says - that this person close to him said Barr was "surprised and angry to discover he`d been lumped in with Giuliani."

MURRAY: Well, again surprised, angry he`s making very clear through his representative or representative is making clear on his behalf that he doesn`t feel like he should be associated with this conduct that somehow he`s above this fray and outside of it, and he wants to make clear about that.

And, again, Bill Barr is really deeply enmeshed in this even if he isn`t actually involved, because of his role in the Department of Justice. The whole idea of the whistleblower escalating this through the Department of Justice means that if there was obstruction the DOJ possibly had a critical role in keeping this from Congress and congressional oversight, and that would certainly implicate Barr. So here we have him taking very strong steps to distance himself from everything that`s going on.

MELBER: Congressman Lieu what do you see as important tonight?

REP. TED LIEU (D-CA): Thank You, Ari, for your question. You`re absolutely correct that the House is going forward with the full force impeachment inquiry. But I do want to note that impeachment is one of the gravest powers of Congress, second only to the power to declare war. It should never be our first option. That has to be our last option.

So we`re going to follow the facts where it may lead. The facts that already come out are very damning and it shows that the President of United States was pressuring a foreign power to help his reelection campaign.

It`s a similar pattern behavior with Russia and a similar pattern behavior with what the New York Times just reported with now the Australian Prime Minister where Trump asked him to go and help - work with Bill Bar on the origins of the Mueller report.

MELBER: Yes, and you mentioned that we`re also learning from people who`ve been inside the administration. So for the Ambassador take a listen to a former Trump DHS official here just yesterday.


GEORGE STEPHANOPOULOS, ABC NEWS ANCHOR: What the President is referring to there is a debunked conspiracy theory that somehow Ukraine, not Russia, hacked the Democratic e-mails in 2016 and that Ukraine might have the DNC server or Hillary`s e-mails. The details are both convoluted and false. And during your time in the White House, you explained that to the president, right?

TOM BOSSERT, FORMER HOMELAND SECURITY ADVISOR: I did. It`s not only a conspiracy, it is completely debunked..


MELBER: Ambassador, at what point do you see this as going beyond the President`s competence where his own people say they - tell him something`s false, he believes it to be true. And gets into the propriety or the abuse of power that what he believes to be true or false comes second to him trying to abuse basically the power of his office to go after Biden or anyone else for his own reelection.

AMB. NANCY SODERBERG, FORMER UNITED NATIONS AMBASSADOR: I think one of the key challenges that the President has is he`s never been in government and he fundamentally lacks the understanding of the fact that the vast majority of people who work in government are actually patriots. They believe in the system, they believe in doing right from wrong.

And I worked in government for decades. I didn`t know who half their career people`s political party was. You just don`t ask that. And so what the President doesn`t understand, and I would say a warning to all of the people who are getting caught up in this, the truth will come out. It is simply not possible to hide things from the public. There are too many people involved and everything will come out.

To the extent it`s always the cover-up. Don`t engage in this cover-up, come forward, tell the truth and stop enabling the President who`s trying to literally hire outside people to do his bidding.

MELBER: And what does that tell you? I mean, there are many people who argue the President`s powers are at their peak in dealing with foreign affairs and dealing with other countries.

SODERBERG: The President is very powerful in foreign policy, but not all- powerful. The Congress has a role, the judicial has a role, our judges have a role. And ultimately, the facts have a role here and they will come out.

And I would just reiterate, having sat in on hundreds of those phone calls, it`s not surprising to me that Secretary Pompeo is now known to have been on that call as well. Well, what was he--

MELBER: What he have done something? Well he shouldn`t have hidden it yesterday when he was on all the morning talk shows. But it`s also going to just raise a question of what was the role in holding up this aid to our ally. The President Trump rightly increased the aid to defend Ukraine against the Russians and now it`s held up. Why? Who was involved in that?

And when you`re a President of United States the government supports you, but it also will stand up to you when they feel there`s wrongdoing, and that`s what we`re going to see more and more. And, again, I would just reiterate, do not engage in the instinct to cover up and hide, because it will fail.

MELBER: And Congressmen put that in context for us. Do you view this as chiefly a scandal about Donald Trump and whether he`s abusing his office?

Or do you view this now and do these Committees that you`re working with, view this is something we`re really the people in charge of the Justice Department and the State Department. These are some of the most important - mean these are people - they`re the top of line of succession, they are supporting the officeholders in the federal government. Do you view them as potentially crossing lines where they should no longer hold these posts?

LIEU: Yes. It`s about the President of States abusing the power of the presidency to leverage foreign governments to help his political interests and get dirt on his political opponent. And it`s also about a massive cover-up of different officials who wanted to put his transcript into the secret lockdown servers, who didn`t want the public to have access to this information.

And when you see if this cover-up continues, it`s because we`ve just issued subpoenas to Giuliani, to other officials and if they don`t provide information, then American people will know they are continuing to hide information from Congress and the American people. And we want the truth to come out and it`s going to show some very bad things that the President and its officials engaged in.

MELBER: If those folks resist, does that become an article of impeachment?

LIEU: It absolutely could. Obstruction of a Congress could be an article impeachment. We`re going to see - based on what comes out next few weeks, we`ll make the decision based on that based on how much of the information the administration provides.

MELBER: The other thing I want to ask you while I have you Congressman is. We and our viewers have heard from you throughout the Mueller probe, which uncovered crime, but also did not involve Bob Mueller indicting anyone on an election conspiracy.

And I emphasized to my viewers as the probe was wrapping up, before we even read the motor report that it did not appear like it was heading that way with conspiracy indictments. Which doesn`t mean people didn`t do things that voters can decide to reward or punish or have concerns about, but it didn`t cross that line.

I wondered now that the Speaker, who of course calls a lot of the shots in your party has said this time its different. Do you see and can you articulate a difference between whatever was in that Russian ballpark last time and what happened here where it does appear that there is stronger evidence than what Mueller had on Russia that the President is asking other countries to help them take out rivals. Do you see it as worse or would you put it differently?

LIEU: One difference is that we didn`t have Attorney General Bill Barr come in with a completely misleading memo that really misdirected the American people about what was in a Mueller report.

In this case, you have American people reading these documents about the same time members of Congress are, so everyone has been able to read this summarized transcript of what the President actually said. That`s not hearsay. We saw the President`s own words. He literally said he wanted favor--

MELBER: That`s what I`m - apart from criticizing Mr. Barr is this in your view worse based on the evidence it whatever happened in the Trump Tower meeting, it wasn`t a government meeting. There was no transcript. No one may never know other than its members.

Here, as you say, there`s more evidence. Do you see this evidence is worse or you wouldn`t go that far?

LIEU: Right. It`s worse in this sense that we have more evidence. We have the summarized call transcript, we have the whistleblower complaint and we have undisputed facts. No one disputes that Donald Trump halted military aid to Ukraine and that week later he has his phone call where he solicits the favor.

MELBER: Very interesting. Real expertise here. I thank each of you Congressman Lieu, Ambassador Soderberg, and professor Melissa Murray with us here in New York as always.

SODERBERG: Thank you, Ari.

MELBER: Thank you. Coming up, why Mitch McConnell is saying officially there will definitely be a trial of Trump if there`s impeachment. Neal Katyal is here. Now Trump and his allies may be fumbling their response to this big battle. The Trump administration also ignoring the Jared and Ivanka e-mail abuse, while reviving a probe into Clinton`s e-mail use at state.

But, first, next we have this other breaking news tonight. Giuliani hit with the subpoena and look at these two experts that know him so well, I`m joined by SDNY prosecutor Maya Wiley, and - come on over, the man who actually ready ran to succeed Rudy in New York, Mark Green, nice to see you both.


MELBER: How you`re doing?


MELBER: Breaking news tonight. The man named checked in the whistleblower complaint, more than anyone else, Rudy Giuliani, has just been hit with a subpoena. Donald Trump`s personal lawyer here is facing severe pressure from congressional Democrats. They want all of his documents regarding the Ukraine by October 15th.

Now as of this weekend, Giuliani was going back and forth over whether he would cooperate with exactly this kind of request. As promised, I want to turn directly to two very special experts Maya Wiley, who was a counsel of the Mayor of New York and a Civil Prosecutor at SDNY, an office Rudy Giuliani used to run; and another Giuliani expert, former New York City Public Advocate Mark Green. He sued the Mayor and also ran to succeed Giuliani in a bid for the Mayor of New York City. All the way back you see right there in 2001.

Good evening to both of you.



MELBER: Quite the experts for Rudy Giuliani. What does it mean that the House is now subpoenaing him and saying if he doesn`t comply, that`s evidence for impeachment.

WILEY: Well, since we know there is a smoking gun document, just the call summary itself of the transcript with Ukraine is its own smoking gun, but also there`s Giuliani`s public statements which essentially was, "Yes, I was going to Ukraine to do exactly what the call notes say, I was going to do."

So for him not to come forward to Congress - of course, Congress needs to see his documents, there`s no surprise about them asking for the documents and a subpoena. But, look, what we know is this is an administration and its allies who have worked very hard to stop the clock, to slow things down and to not cooperate and obstruct Congress.

So their expectation has to be that he will, as he has said publicly, flip- flop and decide whether or not he`s going to - I think he`s in trouble. I think he knows it and I think he`s going to do everything in his power to slow walk this at best and delay, and I think that Democrats are going to have to be prepared to just plow forward very aggressively.

MELBER: You know this man, you`ve tangled with him. Sometimes he wins big, sometimes he loses big. Is this the same man that you tangled with years ago? What do you make of the way that he seems right now to be losing and complicating life for his supposed client.

GREEN: Few of us change, at his age, our age. He`s the same guy. He - his modus operandi then and now is either you love him or he hates you. So he and Donald Trump get along very well. Listen, then he was - he`s a smart - I`m sorry he`s a smart Trump. But even then he was a kind of cocky dissembler, pushing the edge of the envelope.

And now he`s flown too close to the Sun with wings of wax, and he`s going to have to testify. He`s the opposed. He`ll have to do it probably privately. Adam Schiff is a lot of things, but he`s not dumb. And to have this guy who`s gone from the Mayor of America to the joker - the way he`s on television he`s no Ari Berman.

He does this - he - and you I have no idea what`s going on. The House doesn`t want that. They don`t want to reprise of Corey Lewandowski. So he`ll be questioned privately.

MELBER: Do you think Giuliani knows what he`s doing? Or do you think he has sort of lost the thread of what this is about.

GREEN: He`s a moth drawn to fame, and so he loves being in that - he`s back, he`s on television. But he still has a brain. And he knows it`s one thing to BS Chris Cuomo on CNN when he said the opposite thing maybe three seconds apart, which is a record even for a Trump person.

But under oath, he`s going to have to hire a real lawyer this time. He`s going to have to lawyer up and I don`t mean a TV lawyer like him, but someone who will tell him exactly his liabilities to the extent that he`s so grandiose and he doesn`t understand it. But I think he does.

MELBER: Yes. And to Mark`s point, Maya, Rudy has obviously acted in a way that has made himself more central, more relevant, there was wide reporting. He actually wanted to be Secretary of State. Now he`s doing the off-the-book stuff - whether it`s legal or not, whether it`s impeachable or not others will decide.

Here he was yesterday talking about this very news that hit him tonight. What do you do if you get subpoenaed? Take a look.


STEPHANOPOULOS: Are you going to operate with the House Intelligence Committee?

RUDY GIULIANI, PRESIDENT TRUMP`S ATTORNEY: That is a question that has a lot of, lot of implications. I wouldn`t cooperate with Adam Schiff. I think Adam Schiff should be removed.

STEPHANOPOULOS: So that`s your answer. You`re not going to cooperate.

GIULIANI: I didn`t say that. I said I will consider.

STEPHANOPOULOS: You said you wouldn`t do it.

GIULIANI: I said--

STEPHANOPOULOS: You said you will not cooperate with Adam Schiff.

GIULIANI: I said, I will consider it--


MELBER: To get into the substance of this if they`ve already admitted, they wanted a foreign government to help Donald Trump`s re-election to go after rivals. And Rudy is admitted and said, "Hey, I went out and did it." What exactly is the substantive or messaging benefit to then running and hiding at this juncture?

WILEY: Delay, delay, obfuscation, hiding the facts. I mean, remember everything we`ve seen in the press up to now has fundamentally been, "Let`s say that the whistleblower is not credible. Let`s say that they changed the form that the whistleblower. Let`s say and fill in the blank." I mean it`s everything, but the facts that we know that are already out in public and that they themselves have admitted, so all that leaves him is bluster.

MELBER: Right.

WILEY: And I think to Mark`s point all he can do is try to be hard in public as if he`s outraged, but if he just can`t hide. You can run, but you can`t hide.

MELBER: You can run, but you can`t hide. And Mark you can`t hide from the comedian`s either, Rudy being back in the spotlight means at the SNL debut, which a lot of Americans watch, and people who don`t follow the news they get their little bit of a mood from this. This was how it went down on SNL for Rudy.


UNIDENTIFIED FEMALE: Nobody`s going to find out about our illegal side dealings with the Ukraine.


UNIDENTIFIED FEMALE: Or how we tried to cover up those side dealings.


UNIDENTIFIED FEMALE: Or are we plan to cover up the cover-up.

UNIDENTIFIED MALE: Rudy - Rudy where are you right now?

UNIDENTIFIED FEMALE: I`m on CNN right now. Let me put you on speaker.

UNIDENTIFIED MALE: Rudy, get out of there and whatever you do, stay off the phone.

UNIDENTIFIED FEMALE: I know things look bad right now, but I got our top guy on this.

UNIDENTIFIED MALE: Good. Well let`s get him on the phone too.




GREEN: Rudy, may have been able to bluff with the incumbent President and Robert Mueller, and the Trump people prevailed, he never testified, so he can say, "Oh there`s nothing."

Giuliani is a civilian. He`s not Donald Trump in the White House. And the House impeachment process is not Robert Mueller who was predestined not to indict, because of the DOJ rule and also the Trump people said, oh you can`t indict us, Junior said, "Gee, I didn`t really understand campaign finance law.

Well Giuliani does. And already two Republican prosecutors at the DOJ with Giuliani, Bruce Fein and Jeff Harris, who was his Chief of Staff, have said, he`s vulnerable to prosecution because he clearly try to get something of value, whether it`s an exchange or not. Doesn`t really much matter, because they saw something of value from a foreign national, which is per se illegal.

MELBER: And that goes to why the smarter lawyers, which include now Attorney General Bill Barr, as we`ve been reporting tonight seem to be looking for more distance which ultimately raises the question of whether they`ll spend less time in green rooms and more time in law offices prepping depositions. Mark Green, thank you so much Maya stay with me.

I want to turn now to some of the other confusion in Donald Trump strategies as he faced the impeachment probe. We`re going to be back with a special report on that in 30 seconds.


MELBER: Many of the people who defend Donald Trump for a living and thus have experience with all kinds of scandals are finding themselves in trouble lately. Take a look.


REP. JIM JORDAN (R-OH): Daddy comes running to the rescue. The Vice President of the United States comes running in and says, `Fire that prosecutor.

JAKE TAPPER, CNN ANCHOR: That`s not what happened sir. Sir, that`s not what happened. The European Union, the Obama administration, the International Monetary Fund, pro-clean government activists in Ukraine thought that the prosecutor--

JORDAN: you`re saying--

TAPPER: --was not prosecuting corruption.

SCOTT PELLEY, CBS NEWS ANCHOR: The President Trump replies I would like you to do us a favor though.

You just added in other word.

PELLEY: No, it`s in the transcript--

You said, I`d like you to do a favor, though?

PELLEY: Yes. It`s in the White House transcript.

REP. KEVIN MCCARTHY (R-CA): When I read the--


MELBER: When having the transcript that White House put and read back to you, counts as a hard question, you might be in a hard spot. Now that was a top ranking Republican in the House, Kevin McCarthy. Those words, as mentioned, for your factual background, they come from the Trump White House.

Other Trump supporters also finding ways to get tripped up.


WALLACE: Why did he use three private lawyers to get information on Biden from the - from the Ukrainian government rather than go through all of the agencies of this government?


WALLACE: How about answering my question?

MILLER: John Durham, as you know--

WALLACE: Wait a minute, John Durham is investigating something completely different. Stephen, I`m asking you a direct question. Why did the President use private attorneys rather than go to the State Department? If you don`t know, that`s an acceptable answer--


MELBER: That is what these exchanges are looking like on nonpartisan media, on journalistic inquisitions and whatever you want to call, what is it sometimes friendly path over at Fox News, this is how it`s playing.

Now today you have Donald Trump calling for the arrest of a member of the United States Congress who, guess what, is probing the White House, Adam Schiff, and breaking out the word treason, also retweeting warnings about a potential quote "Civil War." That`s a reference to Civil War by the sitting President if he were to be impeached. Now that`s a step too far for one Republican lawmaker who says that comment is now repugnant.

Trump strategy is clearly a mix. There are Trump aides who are trying to do the usual thing of attacking any information they get and finding out oh that information came from them, it`s the transcript. Then there are these ways of dialing it up and talking about treason, as if that is going to make you look more innocent.

Now, look, this Ukrainian investigation, it already has produced what the Russia probe maybe did not, clear evidence from inside the White House of the President`s acts, and maybe that is why this one is so much harder to spit.

Now we are back with Donald Trump`s allies, I want to bring in John Nichols, National Affairs Correspondent for the "Nation Magazine" and back with us former prosecutor Maya Wiley.

John, I turn to you, as someone who`s followed many of these things with an eye to the facts and not the way Washington usually works. How do you think these facts are playing out in the real world, with real people getting some sense - we just showed some of the clips that maybe this time is different.

JOHN NICHOLS, THE NATION, NATIONAL AFFAIRS CORRESPONDENT: I think this time is different. And one of the things that I think a lot of people in the Trump circle don`t quite understand, because many of them are, frankly, very inexperienced with Washington, and frankly an experience with a lot of governing issues.

That is that impeachment is different, people do understand it. If they`re of a certain age, they may even remember Nixon. If they`re a bit younger they will remember obviously Clinton. And at the very least, they really did learn it in their civics class. I can only tell you that I have a 15 year old daughter who`s in AP civics right now and impeachments a really big part about of what folks learn about the Constitution.

And so this is a subject that people can focus in on and they can quickly wrap their head around. And the information that has been coming out has been damning toward the President. It is possible if the President had seen this coming a little better and if the White House had developed a really good war room on this, that they might have been able to have some counter messaging.

But at this point, Ari, I can tell you as somebody who covered the Clinton impeachment and has been around a lot of these things, I am amazed at their inability to develop a clear line to counter what they`re getting hit with.

MELBER: Well that`s what we`ve seen in our reporting. And I make it a point, as you may know to have, all people on and we had a Trump campaign official on last week and - Marc Lotter, and he`s welcome to come back. But he started the interview by denying that there was an effort to go after Biden. By the end of the interview said, yes, maybe there was an effort, and if Biden did something wrong, that`s OK.

Which again shows the message problems you just mentioned, it shows the substantive problem which is why would you need a foreign government to do that in exchange for aid. I mean, the whole thing doesn`t wear well.

With that in mind, John, also take a look at another exchange here on "60 Minutes".


PELLEY: You say the president has done nothing wrong. I take that to mean that you find it appropriate that the President asked Mr. Zelensky for an investigation of his Democratic rivals.

MCCARTHY: Question before the House of Representatives is to impeach the President based upon a phone call that the Speaker never even heard.

PELLEY: Mr. Leader with great respect to you, and I apologize for interrupting. But these are the White House talking points that were e- mailed to the Congress earlier this week.

MCCARTHY: I`ve never seen one talking point from the White House.



NICHOLS: It`s tragic, to be honest. And I have to be honest with you. I`m not sure that Kevin McCarthy was up for this. He is somebody who, as you`ll recall, has sort of fallen into the speakership. Would Paul Ryan have been better prepared, perhaps would someone else have been better. But at the end of the day this is the key element of it.

They seem to believe that they can go on argumentative, that they can just have a fight about this and you know quibble about words, claim they`ve never seen talking points, which is an absurdity, rather than actually going to the heart of it. And to go to the heart of it you have to understand what is at stake here.

And, I guess, I would just sum it up in the simplest of ways. If you understand what the founders were thinking about when they wrote an impeachment power into the Constitution, they were coming off a Revolutionary War against a very powerful King.

They wanted to make sure that the President of the United States and the people in the executive branch were not fooling around with other governments in secret ways that might undermine this new American experiment.

And so I think what they need to understand is, they`re talking about core premises of why impeachment exists.


NICHOLS: And they keep stumbling into it.

MELBER: Yes. Maya?

WILEY: Well I agree with John. I will say that I don`t even think you need to be a 15 year old in an in a civics class to understand that there is no narrative you can spin here when you have a smoking gun, that`s what`s different here from Robert Mueller. Robert Mueller - it was complicated.

But let`s also remember that here we have a President who was individual one in a filing - in a federal filing when his then attorney Michael Cohen was pleading guilty, including hush money payments. This is the same behavior that Robert Mueller actually pointed to also in terms of obstruction of justice where he found substantial evidence.

One of the problems this administration has is, this this is a pattern of behavior. They were saved by complexity. This one is more simple. But you can`t spin a black and white fact and that`s why they`re struggling right now.

MELBER: I think you put that very well. And both of you, John and Maya, are speaking to something that is, perhaps, a note of optimism here which is when the public focuses in - to use the term John mentioned earlier, it becomes harder to say up is down and the sky isn`t blue. And that`s a truth baseline that makes the ultimate adjudication of this, whether the House, the Senate get involved, we don`t know yet.

But that points towards saying let`s deal with the facts that learned not another polarized debate that is somehow fact free for the people who benefit from that, which is usually the liars. John and Maya, thank you both.

NICHOLS: Thank you.

WILEY: Thank you.

MELBER: We`re going to fit in a break, but I had critics say it`s another abuse of power. Donald Trump State Department now - right now reviving the Clinton e-mail probe - what?

But first, this is big news today, and boy you`re going to want to hear it. Mitch McConnell says if there is an impeachment of Donald Trump he must hold a trial in the Senate. I`m going to get into that and a lot more with former acting Solicitor General friend of the show, Neal Katyal live from London when we come back.


MELBER: Members of Congress are unusually busy right now for the beginning of a recess, the House Intel issuing subpoenas, working on hearings about Trump`s Ukraine scandal. While Senate Majority Leader Mitch McConnell emerged today - interesting. To address the very real prospect the House could ultimately impeach the President and to tamp down any speculation the McConnell might try to have the Senate refuse to hold any trial after a potential Trump impeachment.


MORGAN BRENNAN, CNBC ANCHOR: What does happen in the Senate if the House does get through with this inquiry and decide that they are going to impeach President Trump?

SEN. MITCH MCCONNELL (R-KY): Well, under the Senate rules, we`re required to take it up if the House does go down that path, and will follow the Senate rules.


MELBER: Follow the rules. Now that would be bad news for any Trump allies who might have hope McConnell would try to find a way to protect Trump from the Senate trial if it occurred.

Now there is a very rare and momentous thing we`re talking about here. It`s a scene that captivates the nation when you have an intense debate on the propriety and criminality of a sitting President.


UNIDENTIFIED MALE: The sergeant-at-arms will make the proclamation.

UNIDENTIFIED MALE: Hear ye, hear ye, hear ye all persons are commanded to keep silent on pain of imprisonment, while the Senate of the United States is sitting for the trial of the articles of impeachment exhibit exhibited by the House of Representatives against William Jefferson Clinton, President of the United States.


MELBER: That`s what it looks like. McConnell making news by saying that kind of trial is unavoidable if the House impeaches President Trump. Now here`s your fact check, he`s mostly correct. The Constitution doesn`t provide a technical schedule for this trial, but it does state the Senate is required to hold a trial. "The Senate shall have the sole power to try all impeachments."

That`s key, because shall is simply a legal command requiring action. Meaning the Senate must hold trials after impeachments, and that`s what`s happened in the two times in the whole history of our country when the House has ever gone down that road and solemnly impeached a President.

In the cases of Clinton and Johnson the Senate did hold trials for them and both cases involved them being acquitted.

As for McConnell`s reference to the rule, the Senate maintains a set of rules for these type of impeachment trials. They were updated last in 1986 and they do provide a schedule for mandatory impeachment, noting even in the event the Senate fails to sit as scheduled for consideration of articles of impeachment, it can go ahead and adopt in order fixing the time for resuming such consideration.

So it`s not just Mitch McConnell saying it we`re showing you the rules here that support him being right. Now we also reached out today to Senate leadership here at THE BEAT and the Senate Republican aides said, yes, a trial must be held under the rules noting impeachment requires, what it happens, that those articles hit the Senate floor where they can be voted on or dismissed.

Now what do all these rules call for and what is it like when you have a Chief Justice of the Supreme Court presiding over the trial of the President, well, with me now for our "Opening Arguments" series former Acting Solicitor General Neal Katyal whose argued dozens of cases before the Supreme Court. Good day sir.


MELBER: Let`s start with what McConnell said and what we think the rules have generally provided for. Is he right?

KATYAL: So I think many people expected, this guy McConnell, to say something else, because remember, this is the same guy who already held up Merrick Garland`s confirmation as a Justice of the Supreme Court, an unprecedented thing that had never happened before in our history for - not even giving this guy hearing, without Merrick Garland a hearing.

So I think you know what he did today was remarkable. It was actually up and up and it was right. He`s saying the Senate rules require it. I think there could be a debate about whether that constitutional text in the word shall requires a trial. But I`m glad to see McConnell has sited well on the idea that you`ve got to have a trial.

Because I think you know every single minute, frankly every half-hour, we`re seeing something new about Donald Trump and that`s going to be the stuff in the trial and it`s going to be pretty darn devastating for President Trump.

MELBER: Well, and you mentioned this is all - the news he`s driving, Congress is on recess, but McConnell getting out there. He`s got his reasons. Take a little more of a look at what he said.


MCCONNELL: It`s a Senate rule related to impeachment that would take 67 votes to change, so I would have no choice but to take it up. How long you`re on it, is a whole different matter. But I would have no choice but to take it up.


MELBER: We know the President does his procedural and legal learning more through the television than any other means. So Donald Trump may be learning along with others today that that`s McConnell`s position. What does that mean for what it looks like if the House does impeach, and at this point there`s a majority of votes for this impeachment probe.

If they impeach the President, walk us through what we know about what that looks like when it hits to Senate floor and how do you think that might change something that so far has had Americans, largely - although there`s been some shifts, but largely divided.

KATYAL: So first let me talk about what it looks like in terms of McConnell, because I think this bad news for Trump. McConnell could have played the same games he played about Merrick Garland. I don`t have to have a trial and so on. There`s some ambiguity he`ll find in the Senate rule where he can be tendentious about the law.

And so the fact he didn`t do that suggests to me, just like last week`s about saying the whistleblower report has to be turned over, people didn`t I think expect McConnell to support that Senate resolution, but he did. Both of those together to me suggest he`s really distancing himself from Trump, and that`s a pretty remarkable thing, because during the whole Mueller investigation we never saw that.

Now with respect to what the trial would look like. First you`d have the House. It would have to vote up articles of impeachment and those look very much like a criminal indictment. Like Article I, the President obstructed justice because X or Y. Or here Article I would be abuse of power, the President put for his for his interests above the foreign policy of the United States.

And we then go to the Senate for a trial, and that trial looks very much, in many ways like your standard trial that you see in the courtrooms all the time. There`s one big difference, of course. The Constitution says, that the Chief Justice of the United States is going to preside him for it and there will be evidence taken and witnesses and Trump might testify or not. But in those respects that will look - they mirror very much what we`re used to in seeing trials.

MELBER: Fascinating. We`re talking about John Roberts making that trip across the street. The last thing I want to ask you about is something that you, we didn`t make it this way here in the newsroom, you didn`t make it this way over - at your law office the lawyers are again front and center in ways good, bad and in between.

Tonight Rudy Giuliani the President`s lawyer - sometimes lawyers, sometimes fixer, sometimes doing things that are obviously not legal work - hit with subpoenas. Other Fox News analysts who primarily say that they are lawyers and we`re doing potential legal work, they claim for the President, exposed by Fox News is also being a part of this this effort to go after Biden.

Walk us through what it means that we have so many lawyers in the mix and whether they can avail themselves of legal protections as they are demanded to provide evidence on what you just outlined could be an impeachment trial.

KATYAL: Yes, this is some of the scariest news for Trump, Ari. So there`s two sets of lawyers. One is Rudy Giuliani, and Giuliani has said I wasn`t acting as a lawyer during a lot of this stuff. So - and he`s obviously got e-mails and documents, text messages and the like and it`s going to be very hard for him to assert attorney-client privilege when he himself said I wasn`t acting as a lawyer.

And so I do think that the House of Representatives is ultimately going to get all that stuff. There isn`t going to be an effective privilege that Giuliani is going to be able to assert over the bulk of it.

Then there are two other people, diGenova and Toensing and both of them - and this is according to Fox News yesterday, both of them actually declined to be Trump`s lawyer and instead served as some sort of secret back office conduit for information or something like that.

But they said we couldn`t be his lawyer, according to the Fox story, because we had a conflict of interest with other stuff for involving Trump. Now given that, they`re either; A, acting as a lawyer and doing something that will get them in a lot of trouble with the disciplinary and ethics and bar associations.

Or B, far more likely, they weren`t acting as lawyers and--

MELBER: And that`s key.

KATYAL: --and they were acting as some other--

MELBER: I`m running over in time, but I want to make sure we hit that point. If their prior position was we can`t be his lawyer for these reasons, now they`re going and doing this stuff, which the Congress says might be evidence of impeachment. And they happen to be lawyers, but this is like they got an over contract or the TaskRabbit (ph) and they`re helping you hang a picture. They don`t get to hide behind the fact they also are otherwise lawyers.

KATYAL: Exactly. They`re TaskRabbit, non-lawyers at this point. And any assertion of privilege, they`re going to lose. And one would expect, again, they`re going to have e-mails documents and all sorts of stuff that`s going to be super interesting to the House Judiciary and again Intelligence Committee.

MELBER: Yes, from an evidentiary perspective it`s fascinating. Neal Katyal, thank you for making time for us.

KATYAL: And one last thing Ari -

MELBER: Yes sir.

KATYAL: One last thing, Ari. If they destroyed the documents now or something like that that would open them up to obstruction of justice and other things. So this is going to become a very sensitive part of the investigation.

MELBER: All very well put looking around the corners. Neal Katyal, thank you. I`ll remind everyone you can go to arguments to see this and Neal`s other breakdowns. He`s been tracking a lot of the key parts of this story.

Fitting in a break, but when we come back news we have not hit yet, because the hour`s been so busy. Ivanka, Jared, personal e-mails, hypocrisy. Critics say, another abuse of power. We`ll tell you what you need to know when we come back.


MELBER: Trump Secretary of State Mike Pompeo facing new heat tonight. Revelations, he was on the now infamous phone call between Trump and Ukraine President. Critics say Pompeo State Department is also trying to turn the tables with this suspiciously timed apparent intensity of a Clinton e-mail probe.

It`s either reopening or an intensification "The Washington Post" has the details that the department`s now contact over 100 officials just in the past few weeks with concerns about a matter that was long since closed.

One official says he heard from investigators and thought something strange is going on. Another says the goal is to tarnish Democratic foreign policy people. Pompeo for his part declined to take questions about it today when he was pressed by NBC`s Andrea Mitchell.


ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT: Why target routine e-mails of veteran diplomats?


MELBER: Donald Trump has talked a lot about Hillary`s e-mails. But his administration isn`t apparently probing seven officials who used personal e-mail on the job, including two family members of the President, Ivanka Trump and Jared Kushner.


MELBER: This week has started off busy, and tomorrow probably no exception. Michael Moore will join me on "THE BEAT." We will get into everything, including what the outspoken liberal thinks is the right way to take on Trump and this impeachment debate that`s kicking up.

Also, my interview with John Kiriakou, a former CIA whistleblower and quite relevant thinking how this story evolves from here. So join us tomorrow on THE BEAT 6:00 p.m. Eastern. That does it for us now. So right now it`s "HARDBALL" with Chris Matthews.