KATY TUR, MSNBC HOST: well at 2:00 p.m. Eastern right here on MSNBC. "THE BEAT" with Ari Melber starts right now.
Ari, you`re so far away.
ARI MELBER, MSNBC HOST: And yet so close.
TUR: Well, in camera speak yes, but not in physical distance.
MELBER: Metaphysical distance?
TUR: Metaphysical distance, you are like a whole universe away.
MELBER: I feel close to you in going through these news days together.
TUR: I think you should take it away now.
MELBER: Done I always--
TUR: And lay it out for the American public.
MELBER: I always follow my orders. Katy Tur always good to see you. Thank you.
TUR: Thanks Ari.
MELBER: And thanks to those of you at home joining us right now. This is a special edition of THE BEAT because we are tracking this growing Ukraine scandal and the impeachment probe. And we begin with another sign that this one is different.
What a difference one weekend makes. You know Americans went home Friday with Trump`s White House in a kind of a freefall over those explosive allegations that had uncorked this impeachment scandal all from one whistleblower.
And now this week begins with two whistleblowers. Lawyers now saying this new insider is coming forward with firsthand knowledge of that infamous Ukraine call, and that President Trump`s not taking the pressure well, lashing out as the House issues more subpoenas including new ones today, demanding documents from the Budget Office and the Pentagon. That`s a high stakes battle.
Five different Trump administration departments now face these deadlines to comply. And another sign of the escalating stakes in this impeachment battle. "The Washington Post" reporting late today House Democrats now exploring extra security measures to protect the whistleblower when any testimony might be provided.
Democrats quote "considering testimony at a remote location, possibly obscuring the individual`s appearance and voice", which "The Post" describes as "Extraordinary moves to prevent Trump`s congressional allies from revealing the identity of that whistleblower."
Now just stop and take that. It is illegal to expose the identity of that whistleblower. It is illegal because of laws that Congress writes. So this report is stating that at least Democratic officials believe there`s a credible concern that the people who write these laws, in this case they`re alleging House Republicans, will literally break them to continue a cover up for Donald Trump.
Now that is a serious concern or allegation. But then again Donald Trump himself has been calling for exactly that outcome. And the lawyer for one whistleblower is also warning today that there is now an alleged $50,000 bounty out there for revealing his client`s identity. The sparring comes as top House Republican Kevin McCarthy appears - I don`t know how it - appears to own himself with this patently false defense.
(BEGIN VIDEO CLIP)
REP. KEVIN MCCARTHY (R-CA): You watched what the President said he`s not saying China to investigate.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Likewise China should start an investigation into the Bidens, because what happened to China is just about as bad as what happened with Ukraine.
(END VIDEO CLIP)
MELBER: The fact checks are pretty straightforward when the lies are this bleak. And that`s not the president`s only problem in this news cycle right now, because his congressional defenders can keep denying that Trump requested foreign collusion against his rivals. But now Trump`s own adviser Rudy Giuliani is again admitting it. This is the kind of damage control that requires damage control.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, PRESIDENT TRUMP`S ATTORNEY: President of United States has every right to ask countries to help us in a criminal investigation that should be undertaken.
UNIDENTIFIED MALE: That happens to - political opponent.
GIULIANI: Well, I can`t help that. Well, first of all even if it is pressuring Ukraine, it`s a lot different when Biden did. This all should have stopped when President Trump said I don`t do anything wrong.
(END VIDEO CLIP)
MELBER: Now that is a view from a Trump loyalist. But there`s another sign, and this one is about why this is different. It comes from the drumbeat of Fox News, of course, a major source for conservatives, which is now airing more and more concerns about Donald Trump amidst this scandal and beyond.
(BEGIN VIDEO CLIP)
SEAN HANNITY, FOX NEWS HOST: There are hardly a channel here in agreement. We have a few resistance people on this channel, we`re going to be honest it seems to me to be an effort by the President`s defenders to try to make something to make nothing out of something. And there is something here.
UNIDENTIFIED MALE: Your diligence, your dedication and you just kept on with those questions every day with the President. You were cool you were collected.
UNIDENTIFIED MALE: Today the president did exactly what he`s accused of doing this time on live television
UNIDENTIFIED MALE: --asking for aid in a domestic political campaign, whether the aid is delivered or not is a criminal event. That`s clear in the statute.
(END VIDEO CLIP)
MELBER: Criminal event clear in the statute. So no matter where people are getting their news it is now a fact of American life that a lot of people are getting news about the evidence of Donald Trump doing something wrong. And whatever the public`s take, that debate is not the only place that this battle is unfolding.
Impeachment probe itself grinding on Tomorrow lawmakers questioning a Trump official at the center of those leaked incriminating text messages about the Ukraine plot, Ambassador Gordon Sondland. We have a lot to get to.
I want to bring into our special coverage right now former federal prosecutor Berit Berger, Ken Frydman, who worked for Rudy Giuliani`s 1993 campaign for mayor. And today has this barn burner in "The New York Times" making waves around the country. "What happened to Rudy Giuliani." Where he writes the man I worked for in 1993 is not the man who lies for Donald Trump and goes on to issue many other criticisms we`re going to get to.
And we`re joined by Republican Christine Todd Whitman who served as Governor of New Jersey and the EPA Chief in the Bush administration and has emerged as a voice concerned about some of what Donald Trump is doing. Good evening to all of you.
FMR GOV. CHRISTINE TODD WHITMAN (R) NEW JERSEY: Good evening.
MELBER: Berit, new whistleblower alleging firsthand accounts. How does that change this?
BERIT BERGER, FORMER FEDERAL PROSECUTOR: Yes. I think it`s significant. I mean, look, we have to remember that`s not a court of law here. For an impeachment inquiry it`s not necessary that a whistleblower has firsthand information. We have to remember they are trying to make the case, both from members of Congress and ultimately for the general public.
And so assuming this person does in fact have firsthand knowledge that only makes the case stronger. I think perhaps this person`s greatest utility though at this stage is to provide more evidence for the members of Congress to use when they`re questioning people in these upcoming hearings.
If they`re able to interview the second whistleblower in addition to the first whistleblower, they can get a better sense of how to both question and possibly cross-examine witnesses that come before them and what other avenues to seek with subpoenas and document requests.
MELBER: And Governor Whitman, I`m curious what you think. And I want to play some sound from an old school Lindsey Graham. You remember, do you?
TODD WHITMAN: That one? I remember.
MELBER: You know how they Kanye West talks about how there is old Kanye and new Kanye, and there`s a lot of people who prefer old Kanye. There`s a little bit of a version of that with Lindsey Graham.
One of the points he made there that could be relevant in this impeachment is not only what does the whistleblowers have, but whether there is obstruction from the White House over something that is so central. Lindsey Graham`s view used to be that level of obstruction changes the game. Take a look.
(BEGIN VIDEO CLIP)
SEN. LINDSEY GRAHAM (R-SC): 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.
(END VIDEO CLIP)
TODD WHITMAN: Well, I mean its mind boggling to me that Congress isn`t standing up now and saying this is about the Constitution. This is about the three branches of government. This is about our role as the legislative branch.
I would think that they would be outraged at the amount of stonewalling that`s been going on and that they wouldn`t see this as being undermining the very premise of our government and our Constitution. And it`s - you know it`s enormously troubling.
I don`t get it. I do, I mean from a political point of view, I guess. But we`ve so slipped into this mindset that everything is about politics and nothing`s about policy anymore, and we are so divided that people are going to stand up. And when the President - when he - how can he deny that he asked China to interfere when he asked China to intervene.
MELBER: Does it concern you when you see this new "Washington Post" report out tonight that there is a credible concern that members of Congress would break the law and leak the whistleblower`s identity?
TODD WHITMAN: I`m very concerned about that kind of thing. We have seen all the basic norms that we have come to expect be blown away over the last three - two and a half years. Three years, it seems like an eternity, but I guess it`s only three at this point. And that has been something that is going to have a long term damage, I believe, to our - to the people`s confidence in government.
MELBER: Berit, take a look at some of the other defenses we are seeing in this struggle among Republicans to find something to say.
(BEGIN VIDEO CLIP)
SEN. ROY BLUNT (R-MO): Well. I doubt if the China comment was serious to tell you the truth.
SEN. MARCO RUBIO (R-FL): I don`t know that`s a real request or him just needling the press knowing that you guys were going to get outraged by it.
REP. JIM JORDAN (R-OH): George, you really think he was serious about - thinking that China`s going to investigate the Biden family - because I don`t think that`s what he did.
(END VIDEO CLIP)
MELBER: Legally. How strong an argument is that?
BERGER: I mean this is actually something you see criminal defendants trying to do all the time in our courtrooms. If you have a recording where their voices on it they say, "Sure I said those words but that wasn`t what I meant." Whether it`s I wasn`t really talking about drugs, I was really talking about our code or I was really just joking when I asked a foreign government to help interfere in our elections.
I think if you`re captured on tape that`s sort of the only thing that is left for you to claim. But at least based on my experience in federal court it was not often very successful.
MELBER: Yes. And then it goes to desperation. Ken, as promised, I bring you and you were making waves with this piece today. Just as a little background, "yes" or "no", you advocated for the election of Rudy Giuliani as mayor?
KEN FRYDMAN, PRESS SECRETARY FOR GIULIANI 1993 MAYORAL CAMPAIGN: I did. I was his press secretary.
MELBER: And you advocated and defended him throughout his tenure?
FRYDMAN: I did.
MELBER: And as recently as last year you talked about your respect for him.
FRYDMAN: Right, in the "Daily News".
MELBER: Yes. And I think, as someone who covers this interviews people, being able to change your mind in public is a more difficult than even doing it in private. Something changed for you. You have this new piece in "The New York Times" today. Tell us about it.
FRYDMAN: Well you know there was an old Rudy and a new Rudy, as there as there tend to be in politics, and I think you know the old Rudy as well.
TODD WHITMAN: Yes.
FRYDMAN: And the old Rudy listened, because he wanted to win. The new Rudy doesn`t listen anymore, because you won and you can`t tell him anything he doesn`t know. I don`t think as many people think he`s unhinged or suffering from dementia. I think that he is zealously trying to protect his golden goose, frankly, the president.
MELBER: But you write that he`s a lying, bumbling henchman.
FRYDMAN: Yes, he`s not doing a good job of protecting the golden goose. It`s clear that he is he`s not telling the truth and it`s clear that he is fumbling and bumbling in his attempts to do that.
MELBER: Did he used to lie this routinely in your view?
FRYDMAN: No, no, we - he was very good at message discipline and control back in the day.
MELBER: Well you`ve mentioned that back in the day - message discipline. Let`s look at his message whatever on Fox News you know yesterday.
FRYDMAN: Yes.
(BEGIN VIDEO CLIP)
HOWARD KURTZ, HOST: --there is no claim even in lawsuit that Joe Biden knew about this.
GIULIANI: Howard, you can`t be that naive.
KURTZ: No, no. no. Hold on, hold on--
GIULIANI: 20 years of Washington press corps that was--
KURTZ: Well--
GIULIANI: I say, brother, cut it out, damn it. As opposed to, I don`t know about it, I didn`t hear it. And you all buy that. Bull.
KURTZ: Rudy, Rudy, Rudy--
GIULIANI: --in charge of Ukraine. They make 5 million--
KURTZ: Rudy, I got a hard break coming up.--
GIULIANI: China--
KURTZ: We have the transcript of the call--
GIULIANI: Shhh! Shhh! I know you want to defend it so bad.
KURTZ: I don`t want to defend anything. I`m asking questions. I am asking questions.
GIULIANI: You do, you do, it`s pathetic.
(END VIDEO CLIP)
FRYDMAN: Unfortunately it looks like a right wing conspiracy nut. Okay. But when--
MELBER: Look, and you`re kind you`re the former press secretary to the Giuliani campaign, you`re saying he looks like a nut.
FRYDMAN: That`s what he looks like. All right? But when your client lies and you`ve kept the check - in this case he`s working pro bono. But he`s profiting.
MELBER: Yes, Paul Manafort worked pro bono as well, sometimes it`s considered suspicious.
FRYDMAN: Right. If your client lies, you have to lie for him. I mean, look at Sean Spicer, you tried to convince us that the Obama inauguration was half the size of the Trump inauguration.
MELBER: You seem pained. Does this pain you?
FRYDMAN: Of course, it pains me. He married us 25 years ago tomorrow. So I`m very fond of him. I have very fond memories. I actually carry this in my wallet as I--
MELBER: This is--
FRYDMAN: I mentioned in--
MELBER: Yes, I read that in the article. I didn`t know you had it with you.
FRYDMAN: Yes.
MELBER: This is what?
FRYDMAN: That`s our wedding day at City Hall. And I carried it in my wallet until recently when I - I couldn`t carry it anymore when someone had a dinner party - a stranger suggested that we weren`t legally married, because Rudy`s working on his third divorce. So it impacted me. That actually had an emotional and psychological effect.
MELBER: And then someone who works - and I say this sometimes when people ask me, well, how can you have this or that person on the show or interview this and that person? In my experience a lot of the people who go into government public service, they may have a range of views, but a lot of them have a great belief in public service.
I imagined in your view you would say that animated you, and so what is it that you`re hoping to achieve by speaking out, which I see is not easy for you when you see Rudy Giuliani defending what the President is inviting foreign governments to do now.
FRYDMAN: I actually hope that he is still - he still can be reached. That maybe he`s watching tonight and hopefully he read "The New York Times" and he`ll. He`ll pause and he`ll think about the zealous way that he is defending him, the ferocious way that he is defending him.
MELBER: Yes. And Berit, I want to bring you in on this, because obviously members of the bar work cases there are people who are prosecutors they go into defense and vice versa. But as Rudy himself has recently admitted, this is not just him taking on a defense or a criminal case.
He now stands in the intersection of something the Congress is investigating as unconstitutional as an abuse of power. So he is the agent of that plot and not merely a criminal defense attorney, because I will go on record anyone has the right to counsel.
And so there is something extra concerning to people who know that - you worked in SDNY - when you contrast the role he used to play as someone who busted criminal conspiracies. Take a look at that older Rudy as our panelists have called it.
(BEGIN VIDEO CLIP)
GIULIANI: I am tired of being asked over and over again, which type of crime is more dangerous violent crime or white collar crime, all are dangerous and destructive of our society.
Well, I think of five or six or seven years ago nobody would believe it is possible to convict the head of a Sicilian mafia and have him sitting in the Metropolitan Correction Center.
(END VIDEO CLIP)
BERGER: Yes. I mean, I want to just jump in on one thing that you said, which is that you lie if you`re a lawyer, you lie on behalf of your client. But I want to just, for point of clarification, just because lawyers may have that reputation in the media does not mean that that is an acceptable practice. There are ethical rules that guide them--
MELBER: Hold on - hold on Berit.
BERGER: I know--
MELBER: You are a lawyer. How can we believe you?
BERGER: I know. How dare I, right?
MELBER: It`s a paradox.
FRYDMAN: Defense lawyers know when they have a guilty client, though, don`t they?
BERGER: They usually do. Although, I would argue most defense lawyers--
MELBER: Depends on the case.
BERGER: Right.
FRYDMAN: Well, yes.
BERGER: Right. And everybody has the right to a vigorous defense and to an advocate that will oftentimes take positions that they may know are weak. What I don`t think they have the right to is a lawyer that will go into court and lie for them.
MELBER: Sure.
BERGER: Not only is that illegal, but it is also unethical and is contrary to sort of our rules of professional responsibility.
MELBER: And governor the court setting that this may be heading towards, if the House impeaches is this Senate trial, which as the country will be reminded, is different than normal court. But I wonder what you think, looking at Rudy - broadening from Rudy Giuliani as this individual that we`re learning about, to the choices facing the Republican Party.
Is it possible for the Republican Party to defend the President and the incumbent party if they wish, while also being truthful or while also acknowledging there are things that he shouldn`t do while standing up to that. Do you see any hope for that in your colleagues?
TODD WHITMAN: I do. I hope that eventually they will see the importance of this to the future of the country and treating these things as real issues. I think a lot is going to depend on how the Democrats handle this. They really need to find some there there.
I`ve spent time now talking to people who are this really - they don`t love everything about Trump, but they`re they want to hear more, and they don`t believe there`s a there there yet. I think there`s plenty there, but they`re not convinced and so it`s - lot`s going to depend on how methodical and transparent the Democrats are as they go forward.
I wish there was only one committee instead of five doing this, because then you`ve got subpoenas all over the place and that just feeds into this, they`re beating up on the poor man. He kind of feeds all of this.
He called for this when he called out and said publicly that Russia - I mean, excuse me that China should look at. We`ve already done Russia look in - but when China should start to investigate. It`s - you can`t deny it. And the damage he`s done to Ukraine - I was just there for their last elections - their parliamentary elections.
And the people were so enthusiastic about the potential of Zelensky who is someone who is young, unexperienced, but is coming in with a "I`m going to tackle the corruption" which been endemic.
And then our President gets up there and sucks him into this domestic political thing--
MELBER: Right.
TODD WHITMAN: --is undermining him. He keeps talking about how corrupt Ukraine is. It`s basically Putin`s talking points.
MELBER: Yes. It`s damning the way you put it. And the evidence shows the President bringing in not only the foreign leaders, but his own attorney general Rudy Giuliani and others - Pence perhaps into this whole plot. So there`s a lot, as you say, to be uncovered--
TODD WHITMAN: I think Rick Perry did it, I think.
MELBER: I heard that. It is - yes, Rick Perry. We have more on that later. Thank you for that fact check. We can mix it in the very serious times for a republic with some sense of humorous perspective.
And I`ll remind viewers what we`ve been listening to in this very sober and serious conversation is a former Giuliani aide, a Republican governor in good standing and a prosecutor, not exactly a resistance panel, when it comes to just assessing the facts of what is arrayed against this President.
Christine Todd Whitman, Berit Berger and Ken Frydman thanks to each of you.
FRYDMAN: Thank you.
TODD WHITMAN: Thank you.
MELBER: Going to fit in a break. And then, yes, as mentioned Rick Perry in on the act. What does he have to do with it? David Corn is here later and Neal Katyal joins me tonight on the second whistleblower and the stakes for impeachment, and later a very special interview with a look inside the White House. I`m Ari Melber and you`re watching THE BEAT on MSNBC.
(COMMERCIAL BREAK)
MELBER: President Trump is on defense over several different fronts tonight, vowing to this military pressure from Turkey, new subpoenas over Ukraine and again shifting his defense in an impeachment probe that could define his presidency. So it is worth keeping track of the evidence here.
One piece of evidence suggests Trump knew his Ukraine plot was wrong, because he vigorously denied it. Originally insisting that rather than calling for an investigation of Biden, the call was congratulatory and about some sort of general corruption.
(BEGIN VIDEO CLIP)
TRUMP: Conversation I had was largely congratulatory, was largely corruption.
But my complaint has always been and I`d withhold again and I`ll continue to withhold until such time as Europe and other nations contribute to Ukraine.
(END VIDEO CLIP)
MELBER: That claim was undercut by evidence from Trump`s own White House and Trump tried to shift that by famously calling for more foreign collusion.
(BEGIN VIDEO CLIP)
TRUMP: China just started investigation into the Bidens, because what happened to China is just about as bad as what happened with Ukraine.
(END VIDEO CLIP)
MELBER: Democrats said that was an effort to launder and try to normalize this kind of plotting. By the time Trump was privately conferring with House Republicans heading into this weekend just on Friday, he was back to admitting the plot - was a bad thing, but blaming it on his employee Rick Perry, saying Perry made him do it.
Now that isn`t a relevant argument. If this plot is a high crime, which is a judgment left to the Senate, it`s not a defense to say your subordinate told you to do it. And don`t you wonder is this even OK with Rick Perry?
Well it turns out you can blame it on the Energy Secretary, because he don`t mind and he don`t care. And that`s why this is starting to look like a Milli Vanilli defense, because you`ve got to blame it on some.
(BEGIN VIDEO CLIP)
RICK PERRY, UNITED STATES SECRETARY OF ENERGY: Absolutely, I asked the president multiple times: `Mr. President, we think it is in the United States` and in Ukraine`s best interest that you and the President of Ukraine have conversations and discuss the options that are there--
(END VIDEO CLIP)
MELBER: What does this argument reveal about where the impeachment debate is headed? David Corn, how are you doing?
DAVID CORN, WASHINGTON BUREAU CHIEF, MOTHER JONES: OK. How are you?
MELBER: I want to ask you that. I want to about the Milli Vanilli defense and where impeachment is headed, so stick around, when we`re back in 30 seconds.
CORN: OK.
(COMMERCIAL BREAK)
MELBER: Turn to Mother Jones` David Corn. David you know it was a 30 second break?
CORN: I know, I`m sorry I was getting prepared--
MELBER: You`re an addict - you`re a news addict. I`m sure you`re checking the headlines. What does it tell you that you have these defenses coming?
CORN: Well, I don`t want to help any movie studio, in particular, but it does seem to me that Donald Trump is playing the Joker card. That he wants to be the Joker and he realizes that chaos is his best friend. He likes chaos. So we go from I didn`t do it to I did do it to I`m doing it right now in front of you, as we speak, to Rick Perry made me do it.
And it`s about Ukraine, it`s about - now it`s about liquefied nitrogen gas. It`s about the Bidens, it`s about servers. He just wants this ball of confusion - the temptation song - to be out there, so it`s really hard for people to get a hold of what`s going on. And once--
MELBER: So your theory basically is what he gives up in logic, because saying I did something it`s OK I`m proud of, it is very different and saying it`s so bad I have to blame someone. What he gives them in logic he gets back in what?
CORN: He gets back and clutter and chaos. It`s not a completely - there`s no complete narrative through line here. People who are - you and I follow this stuff day-in, day-out, nanosecond by nanosecond. To a lot of people viewing - and particularly to his base, who are watching from afar or watching or not watching or watching Fox, which is barely mentioning this.
They just see him putting out all sorts of different stories and it all gets kind of muddy and so they fall back on to what is their natural bias, which is I like the President. They must be going after him for bad reasons and I can`t follow the details.
And I think to people in the middle who want to try to understand this, he does everything imaginable to make it incomprehensible.
MELBER: I mean, part of what you`re talking about - and look David, I would never in the middle of a serious newscast reach for an obscure pop cultural reference.
CORN: Never.
MELBER: But what you`re describing sounds like the "South Park Chewbacca Defense.
CORN: The South Park Chewbacca Defense.
MELBER: Yes. On South Park they depict a defense lawyer Johnnie Cochran using a logic around the character of Chewbacca and Star Wars to simply confuse the jury, so that by the end of the closing presentation it`s not that the defendant looks more innocent - in this case Donald Trump, but rather that enough people just get confused.
CORN: And they get turned off. They don`t pay attention. And we saw this with the Trump-Russia scandal in the sense that it was in some ways confusing, had a lot of different elements to it. Somebody had to write a book to explain it. And it took a book maybe to explain it.
MELBER: Look man - look man I`m not going to blow you up. But if you think that the takeaway was confusing, you spent a few years trying to explain it in print and on air.
CORN: Well, I think--
MELBER: That`s on you man.
CORN: No, no. I think it`s on the fact that within the media, as we have it these days, it`s very easy to come along and spin out lies, alternative realities fake facts. Look what Devin Nunes did to the investigation on the House Intelligence Committee, trying to bring up all sorts of diversionary subjects.
And that - and the media feels compelled to cover that to some extent even if they say it`s not true, it still creates an impression that that is indeed confusing to people who don`t pay close attention.
MELBER: Right. And that many that may be why a process like impeachment and a Senate trial, which becomes the biggest story in the nation for a while may actually be the scariest thing to them.
If the President really want to be impeached, like he used to claim, he would just say bring it on. Instead they`re stonewalling, they are counterattacking, they`re trying four different things to stern up the wall.
CORN: Right.
MELBER: It may be in that focus, some of the confusion argument works less. We`ll see. I`ve got fit in a break. Mr. Corn, thank you as always.
CORN: Good to be with you.
MELBER: Appreciate you, sir. Up ahead, this second whistleblower and the dangers that are posed by some say people in government. Neal Katyal live joins me for "Opening Arguments". And up next, a deep dive on impeachment, something very special I`m going to show you after the break.
(COMMERCIAL BREAK)
MELBER: And now we turn to a very newsworthy guest the current counsel for President Trump Jay Sekulow, thanks for joining me.
JAY SEKULOW, ATTORNEY TO PRESIDENT TRUMP: Thanks for having me. I appreciate it.
MELBER: Absolutely. Congress is considering impeaching President Trump for asking Ukraine to investigate a domestic rival Joe Biden. As you know the evidence shows and Trump now admits he did that. So for starters, do you see this now as an impeachment debate where you basically agree on what happened, but your defense is that what happened is in your view OK?
SEKULOW: It`s two things, one is, the House is still not moved to a formal impeachment proceeding. So I think to be clear, Nancy Pelosi, when she had the press conference a week and a half ago - two weeks ago now, said that this is a more formal investigation. But the fact is they haven`t taken it to the floor of the House. So the House has not instituted a impeachment proceedings, so that`s number one.
So nothing`s really changed for the last the months we`ve been in really in this investigation. As to the issue of what was said, well that`s not in dispute, because the transcript was released, which clearly shows what was said - at least the best transcript that was available regarding the phone call. And I find what`s interesting now is--
MELBER: So the President wanted Ukraine to investigate Joe Biden?
SEKULOW: The president said - why don`t we stick to what he said in the transcript, where he said he was concerned about a number of things? The Biden reference and my colleague Rudy Giuliani`s reference were about it, if you`ve heard it, sum it all up about him minute and a half of that conversation.
There`s nothing there that rises to a level of an impeachable offense--
MELBER: Well, I`m - we`re going to get to that. I just want to start with figuring out what you acknowledge. And let me play for you another--
SEKULOW: I acknowledge the transcript.
MELBER: You acknowledge the transcript and here`s--
SEKULOW: --and that`s what the evidence says.
MELBER: That`s one piece of evidence. There`s also whistleblower evidence and there`s also the President`s own words.
SEKULOW: Well--
MELBER: Hold on, hold on. I`m going to let you get in. But let me play for you what your client said, because he added to the transcript by saying this.
(BEGIN VIDEO CLIP)
REPORTER: What exactly did you hope Zelensky would do about Bidens after your phone call? Exactly?
TRUMP: Well, I would think that if they were honest about it, they`d start a major investigation into the Bidens--
(END VIDEO CLIP)
MELBER: So your client admits that goal, which is why I`m asking you what the Congress is considering is, whether that thing is impeachable. Do you concede that?
SEKULOW: No, I don`t think it`s impeachable. I don`t see where it`s a high crime or misdemeanor. Tell me what rule, law or statutes been violated by the President as Commander-in-Chief and is the Chief Executive under Article II of the United States Constitution violated any rule.
You may not like the politics of it, you may not like the statement. But where does it violate a law? Where does this rise to the level of, Ari, high crime or misdemeanor. And then - I know you`ll say, we`ll get a get to the whistleblower--
MELBER: We`re going to get to the whistleblower - no, no, we`re going to get to whistleblower, because we are not there yet.
SEKULOW: Go ahead, go ahead, go ahead.
MELBER: You are asking about whether there`s a statutory violation. As you know what the founders did was right in the idea that you could have high crimes and misdemeanors. You want to point to statutes, that`s not required, but it is unlawful--
(CROSSTALK)
MELBER: hold on, and I will let you to respond, sir. It is unlawful to solicit or receive any foreign hell which includes things of value. So if you want a statute I`ve got it up on the screen, that`s not even required. The other thing I want to ask you--
SEKULOW: Do you really - Ari, Ari--
MELBER: Let me, let me - I will let you--
SEKULOW: --in your all honesty - I want to--
MELBER: Hold it.
SEKULOW: OK. Go ahead. Your show.
MELBER: I want to ask you something and I will give you time.
SEKULOW: Yes.
MELBER: If the Trump didn`t do anything wrong in this Ukraine plot why did he deny it and keep shifting the defense?
SEKULOW: He hasn`t denied it. He said - he released the transcript, that`s what`s interesting here. Let`s take a very quick trip down memory lane.
MELBER: Go ahead.
SEKULOW: First it was going to be - there was a quid pro quo. Then the transcript comes out, there`s no quid pro quo. Then it was going to be - there was a cover-up, but then there was no cover-up because the transcript was released.
Then Adam Schiff said I - my staff - we didn`t talk to this whistleblower, then we find out he did talk to the whistleblower. Then Adam Schiff has a hearing and in the hearing instead of reading from the transcript he makes something up.
MELBER: Well, let me get in here and say it to you--
SEKULOW: Ari, I`m just trying to let you know - give me - let me please finish the sentence.
MELBER: Go ahead.
SEKULOW: I think that we have to do is look at the evidence and the evidence to me very clearly establishes that there is no high crime or misdemeanor and that this is political theater.
MELBER: Well, I think you`re entitled to that view and I think you`re going to wage that debate and you may ultimately win in the Senate if it gets there. What I raised right now, what I have to fact-check you on is, the President did deny it as did his aides in real time.
And so that does go, as you know as, a lawyer to--
SEKULOW: What do you--
MELBER: Hold on. That go - I`m going to show it to you and let you respond. But that goes, as you know as his lawyer, to a awareness of guilt. Now I`m going to play for you the President and then Marc Lotter on this very program saying he didn`t admit what I just already showed, which is that there was a request to investigate the Bidens. Take a look first at the President.
(BEGIN VIDEO CLIP)
Trump: Now when you see the call, if you see it, I hope you see it, frankly. You will find out that I did not do that at all and you`ll be very disappointed when you see it--
(END VIDEO CLIP)
MELBER: And then we had Marc Lotter who works in the 2020 campaign for the President`s re-election and he initially told us it also was not this this Biden plot. Take a look.
(BEGIN VIDEO CLIP)
MELBER: You`re telling me today, you`re not looking for foreign help. But the Ukraine call notes, even before you get to the whistleblower have the President saying, do me a favor go after a domestic rival Joe Biden.
MARC LOTTER, SENIOR TRUMP CAMPAIGN OFFICIAL: That is not what the transcript says and you know better than that Ari. He says do me a favor, look into corruption, look into the incidents that were detailed in the 2016 election meddling--
(END VIDEO CLIP)
MELBER: Why deny this, which is charitable or lie, which is what your critics are saying today. Why have these people lie about this and then go on and admit it. I give you - your response.
SEKULOW: Ari, here`s my response. We released the transcript, and the transcript speaks for itself and here`s the problem. You put up on the screen a few moments ago that the violation that you`re going to talk about impeachment on is an interpretation of an FEC, Federal Election Commission, law regarding something of value when the special counsel - who everybody forgets he even existed now, came to the conclusion that that information, if it was ever obtained, would not constitute value.
So this is again - everybody forget. The only one you remember the parts of Bob Mueller that you want to remember, which by the way nobody`s remembering too much of that, I have to say these days and why is that?
Because this idea that this is a violation of an FEC rule and you`re going to impeach the President of the United States on a contorted interpretation of an FEC regulation, I don`t think that rises to height.
MELBER: Right. Look, and this is why it`s useful to hear what your defense is. Part of your defense is the position that he can in the light of day get foreign help in the campaign and you`re saying that that shouldn`t be illegal, that`s your position. I want to ask you--
SEKULOW: --it`s not--
MELBER: I want to ask you something about the lawyers--
SEKULOW: It`s not what I said, by the way, but go ahead.
MELBER: I want to ask something about the lawyers. You`re a lawyer for Donald Trump, correct?
SEKULOW: Yes, in private capacity, yes.
MELBER: Is Rudy Giuliani a lawyer for Donald Trump right now?
SEKULOW: He is.
MELBER: And so when you see Rudy Giuliani go out there in this manner, is he helping the President in your view?
SEKULOW: I think he is, because I`ll tell you what he`s doing. He`s getting out there the facts that he knows more about than anyone else. And that is Rudy Giuliani knows more about what was going on in Ukraine than anybody on these committees now, and I think that`s just fact.
So what Reid Giuliani is doing is putting forward a position to defend his client. And that`s why he was involved in this in the first place, that`s what he said publicly. And it was out of my jurisdiction. It wasn`t anything I was engaged in. But I understand what he has said and I think he is representing his client, and as you know as a lawyer, you do that zealously.
MELBER: You`re saying you weren`t engaged in it. When did you learn that Rudy Giuliani was asking these foreign governments to investigate Joe Biden?
SEKULOW: I learned when, I guess, when you did, because I was not involve - that was not in my jurisdiction and was focusing on--
(CROSSTALK)
MELBER: Well, you don`t know when I did. So I`m asking you when you did. You don`t know when I learned it.
SEKULOW: Well, I didn`t I didn`t know anything about until all this got really public. I mean, I didn`t know anything of this Joe Biden and Ukraine--
(CROSSTALK)
MELBER: --you learnt about it when it spilled into the public reporting?
SEKULOW: Yes, because my engagement, as you remember, was involved with the whole Bob Mueller, Russia, collusion, obstruction nonsense, that`s what I dealt with. So what Rudy was doing in regard to his aspect of his concern at Ukraine or how this investigation started, that was his team, that was his folks, wasn`t me. But I don`t think what he did is the violation of any law, rule or regulation either.
MELBER: Understood.
SEKULOW: I think he had the right to do it in representing his client.
MELBER: And what I`m hearing from you today and what our viewers are hearing, so they get all sides of this is, that you think the facts are ultimately on your side? If that`s true--
SEKULOW: I do.
MELBER: If the facts and the evidence are on your side, let me put up on the screen all of the differ individuals who have been stonewalling the Congress in this investigation, because you have in the Mueller side, you have don McGahn and Mulvaney. Then you have Pompeo and Barr and Pence. The list goes on and on here. And the question becomes why stonewall these subpoenas if you think the evidence helps you?
SEKULOW: First of all Stonewall is not - is a loaded word. There are constitutional privileges that exist, you know that very well, including executive privilege, including deliberative privilege. And you don`t--
MELBER: Why hold back--
(CROSSTALK)
SEKULOW: Hold on, hold on, hold on, you got in my word choice - hold it--
(CROSSTALK)
MELBER: You want me to go into source? Why withhold the evidence? Forget stonewall. Why without the hold the evidence--
SEKULOW: Because it affects - not only it doesn`t affect this case, it affects the office of the presidency of the United States. You do not waive willy-nilly executive privilege that`s like waiving attorney-client privilege. Would you waive attorney-client privilege, Ari? You`re a lawyer. Would you waive it if your client said I want to assert attorney-client privilege--
MELBER: If I come on your program, I`ll do an interview with you. But you`re doing an interview with me sir.
SEKULOW: No, no, no,, I`m trying to - we`re friends--
MELBER: Yes.
SEKULOW: --I`m trying to say. You`ve got valid constitutional statutory privileges involved here, you don`t just waive them. And to make that, if I exercise my constitutional privilege, I`m now violating an obstruction of Congress, that`s absurd - really absurd.
MELBER: Finally--
SEKULOW: And dangerous by the way for American citizens.
MELBER: And you get time--
SEKULOW: --really dangerous for the attorney-client privilege.
MELBER: You`ve got the time to make your case. Final question, sir.
SEKULOW: Thank you. Yes sir.
MELBER: When the President - final question - when the president advocates the unmasking of this whistleblower does that not violate federal law?
SEKULOW: Well, here`s the - well, it`s not a question of the unmasking of the whistleblower, it`s the - really the real question is, is the whistleblower`s testimony, which cannot be cross-examined, could it be the basis upon which an impeachment allegation comes it comes out?
Are you going to have it where the witness cannot be cross-examined by the lawyers, because under the House procedures right now we don`t get to ask a question of that whistleblower, and that could serve as a basis for impeachment? I think that violates something else, it`s called due process.
MELBER: Jay Sekulow, previewing some of the arguments you would make.
SEKULOW: Thanks Ari.
MELBER: I appreciate you coming on THE BEAT, sir. Thank you.
SEKULOW: Thanks for having me always.
MELBER: When we come back. Former Acting Solicitor General Neal Katyal on the emergence of the second whistleblower and anything he wants to say about this interview we just heard, right after the break.
(COMMERCIAL BREAK)
MELBER: Welcome back to our special coverage. I`m joined now for "Opening Arguments" by former Acting Solicitor General Neal Katyal. Good evening, sir.
NEAL KATYAL, FORMER FEDERAL PROSECUTOR: Good evening.
MELBER: Plenty to talk about. First, your reaction, anything you heard from the President`s lawyer tonight live on THE BEAT.
KATYAL: Well, I think the technical legal term - Ari, for what we just heard is Gobblygook. I mean, there was - that word salad was incomprehensible at various points and I think the most telling thing is Mr. Sekulow keeps referring to that "transcript" that`s been released.
No transcript has been released. We`ve gotten a rough readout of the call. It`s like calling the full you know CliffNotes of Macbeth - Macbeth there`s something like that. The fact is and what Mr. Sekulow doesn`t say is that the actual word-for-word stenographer transcript, which the President Trump has alluded to, we`ve never seen.
The reports from the whistleblower that it was hidden on a classified server, we don`t know exactly that what the truth is. What we do know that what was turned over was not the full thing.
But even that, as you were saying, even what was turned over is damning. It`s forced the president to pivot from his first defense which is, oh the whistleblower is all about hearsay, I didn`t do it blah, blah, blah. To, Oh, OK. I did it now I`m going to do it some more. I`m going to do it overtly and there`s nothing wrong.
MELBER: What do you think Neal for viewers who are everyone`s studying up on the Constitution these days of the attempt to say there must be a federal statute as a requirement to impeach.
KATYAL: Yes. That`s totally bogus. I wrote about this in "The New York Times", that`s never been the view from the founding on, starting in the Philadelphia Convention of 1787. Literally there`s not a single responsible scholar who takes that view and that`s for good reason, because there`s all sorts of things that are horrible and abuses of trust, but aren`t criminal.
This one actually happens to be criminal it is a thing of value, I think, for reasons you were talking about. But I think that doesn`t matter for the impeachment debate at all. The central question, Ari that our founders thought about when they thought about impeachment was this.
Has the President abused the public trust? Has he broken his fiduciary responsibility to the American people? And this is literally - like if you looked in a dictionary definition of what`s in a impeachable offense, this would be what it is.
It`s going to a foreign government and saying hey I want dirt on my political rival and I`m going to hold up U.S. foreign policy and money appropriated by the Senate and all sorts of diplomatic maneuvers until I get what I want for me personally. That`s the problem. That`s why this is so simple and that`s why I think the President is lashing out in all of these different ways/
MELBER: The other thing hanging over this process as the house decides what to do and comes back into session next week, is whether there is really a huge, kind of, end of days in a ranch battle over these subpoenas.
I showed in the interview to Mr. Sekulow what the facts are on your side, why withhold so much evidence. Curious what you thought in assessing his answer there.
KATYAL: His answer was pathetic. He claimed that - I mean, he claimed that basically he was doing it to protect the institution of the presidency. Now, look, this will be the first time in three years the Trump administration has given one whit about the institution of the presidency as opposed to Mr. Trump`s personal stuff.
But even on its own face, of course privileges are waived all the time. Indeed when I was in government we did so a lot in order to get information out to the Congress.
MELBER: Right.
KATYAL: And to the American people--
MELBER: And which--
KATYAL: And particularly as you said, if you`ve got nothing to be afraid of, if you think what you did is right, then calve it out. But, of course, Ari, the point is--
MELBER: Yes.
KATYAL: --they`ve always kept this stuff secret and covert.
MELBER: And they`re not engaging on it Neal.
KATYAL: This is the plot that weren`t supposed to find out about.
MELBER: Right. They`re not engaging on in the sense of, oh, well okay as they did what the call notes, we`ll provide certain things even to closed session to Congress if they wanted to say the facts helped them. I want to get you on something else.
I`ll remind viewers that you do something that very few lawyers ever get to do. You walk into the Supreme Court and you argue before these nine justices, which is pretty cool. I want to put up on the screen what we`re seeing in the coming term. There`s a lot of other news going on even in the midst these Trump crises. Tell us about some of these cases coming.
KATYAL: Yes, I know they were massive. Like tomorrow these LBGT cases are going to come before the court and the question is whether or not Title VII which prevents - it`s a sex discrimination. Discrimination on the basis of sex, includes sexual orientation.
I think, Ari, it`s striking, even today that right now in many places in America if you`re gay you can be fired just for being gay. So that`s what the courts going to talk about tomorrow. The court agreed on Friday to hear a major abortion case about whether or not restrictions on abortion clinics unduly burden a woman`s right to choose.
So there`s a lot of hot-button stuff coming this term that started today with some criminal cases. But tomorrow it`s going to be big.
MELBER: And real quick - 20 seconds, will the court hear a trump tax case or not do you think, there`s a New York version of that?
KATYAL: Well the Court of Appeals is going to hear it on an expedited basis in a few weeks. But I do expect this gut kind of case or something around this whole Trump impeachment to go. This tax case is very easy and I think that the court will resolve it against Trump pretty quickly, without it going to the Supreme Court. But other Trump stuff will go.
MELBER: Fascinating on a lot of different issues tonight in "Opening Arguments". Neal, thank you so much.
KATYAL: Thank you.
MELBER: And everyone you can go to Msnbc.com/openingarguments for this and other segments. In these times Neal Katyal is someone that sometimes you want to watch more than once. Now we`ll be back with "One More Thing."
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
REPORTER: What exactly did you hope Zelensky would do about Bidens after your phone call? Exactly?
TRUMP: Well, I would think that if they were honest about it, they`d start a major investigation into the Bidens--
(END VIDEO CLIP)
MELBER: That`s a voluntary confession from the President of United States on the core issue that may come up if there`s a House impeachment, that`s what I was pressing his lawyer on tonight. And what we heard yields some new information - that the legal team for the president is planning to stand by.
Not to say it`s a joke like Marco Rubio, not to say it was misunderstood, but to stand by that tonight, as part of their defense heading into what may be an impeachment of the current President. What you saw there on Thursday is going to ricochet for a while, that`s a final thought.
As always thanks for joining me. I`ll be back at 6:00 p.m. Eastern tomorrow night here on THE BEAT with Ari Melber. But up next it`s "HARDBALL."
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END