2020 Dems talk justice reform. TRANSCRIPT: 10/28/19, The Beat w/ Ari Melber.

Guests: Jeffrey Rosen, Craig Green, Melissa Murray, Neal Katyal, DavidStewart

KATY TUR, MSNBC HOST: And how about Putin meddling, is it a peddling or maybe a poodling? Could it put a putting, a pudding or could it - our words are meant to brief the people. We need to give them some space, so let`s end our bromance with Portman toes and just stick to being frenemies. That`s all for tonight.

Chuck will be back tomorrow with more MEET THE PRESS DAILY. And speaking of frenemies, "THE BEAT" with Ari Melber starts right now live in Philadelphia.

ARI MELBER, MSNBC HOST: I love it. Thank you, Katy. As you mentioned, we are coming to you live on THE BEAT in Philadelphia. We`re overlooking Independence Hall right now. it`s the building, of course, where the Declaration of Independence was adopted and the Constitution was signed.

And we begin now with breaking news. Late today, Speaker Nancy Pelosi announcing something that has not yet happened, but now will. United States House of Representatives will hold a vote on impeachment procedures this week - this Thursday.

This is, obviously, brand-new and Democrats are saying it will lay down in public and for all to see the formal path forward, formalizing how these committees will deal with evidence, which some say supports the impeachment of Donald Trump. How they will enforce subpoenas and deal with the stonewalling and more?

Now to be clear, this is not yet the vote on actually impeaching Donald Trump, but it does signal that Speaker Pelosi meant what she said when she said this was a new phase of impeachment going towards ultimately a floor vote.

It also rebuts a claim from Trump allies that the impeachment probe was somehow a head-fake, a bait and switch or somehow illegitimate because the House would never vote on doing it. This is the backdrop for the other developments I`m going to walk through with you.

Right now a top diplomat friendly to Donald Trump is revealing that he told congressional investigators there was in fact a quid pro quo offer in this infamous Ukraine plot. That is a huge deal. Also today, a witness refusing to comply with a subpoena - I`ll be joined a night by Neal Katyal all about that while I`m here live in Philadelphia. We`ll still have "Opening Arguments."

And later, a Republican senator who is calling the impeachment or deal a quote "horror movie," we`ll explain why.

But we begin right now with this revelation that is clearly at going through all of Trump world tonight. A diplomat at the heart of this scandal, a Trump donor turn to ambassador, this is someone who`s supposed to be on the President`s side, making a startling statement.

And let me say it very simply and starkly to you right now, this Trump friendly witness says he believes there was a quid pro quo. I`m speaking about reporting that`s based on the lawyer for the ambassador to the European Union, Gordon Sondland who is telling The Wall Street Journal that quid pro quo admission is exactly what Sondland has already revealed to those impeachment investigators in the Congress.

Testifying he believed Ukraine had agreed to open investigations into a Biden linked firm and that was a quote "condition" for a White House meeting between Trump and Ukraine`s President. "Asked whether that arrangement was a quid pro quo," which of course is the heart of this impeachment inquiry," Mr. Sondland said he believed the answer was yes.

You don`t need to be a lawyer or an impeachment expert to know that. Yes, is not what the Trump White House wants to hear. Gordon Sondland is a key player, of course, Republicans have cited the text he wrote in the middle of all this to a fellow diplomat as a potential or alleged defense of Donald Trump.

Sondland had infamously wrote, "The President has been crystal clear no quid pro quos of any kind." Right here you are seeing in the text that are leaking out, in the evidence that`s leaking out and the testimony we`re getting from the Congress where the tension is in this impeachment probe.

Now I want to give you context as we always try to do Mr. Sondland has distanced himself from that original text. He said basically, look, I wrote it, yes, but those were Trump`s words and the argument there is he`s a diplomat. Sometimes he just says what his bosses say. But we`re not doing diplomacy right now. We`re doing the Congress is doing and the country is watching an investigation.

So it appears the Republicans would have trouble trying to dismiss Mr. Sondland as any kind of disgruntled partisan, let alone a member of the so- called Deep State. He is a Trump donor and a Trump loyalist. He was handpicked by Donald Trump to be the U.S. Ambassador to the European Union.

He is also not a longtime Washington insider or someone who he can be accused of having agency or State Department loyalty, nothing like that. He is a basically successful businessman up to this point with a lucrative hotel chain in the Pacific Northwest. And he`s also, as mentioned, and this is how he got the job according to many, a major Republican donor.

After Donald Trump was nominated in 2016 he joined Trump`s RNC finance operation and then popped over a cool 1 million to Donald Trump`s inaugural committee. Why am I telling in all this history right now? Because in an investigation witnesses matter and when the witness is saying bad things for the White House, are the White House his best friends and donors, that`s really bad.

That is the man who is now - and this is the first time we`ve reported this tonight, a man who`s now telling congressional investigators there was a "quid pro quo." Meanwhile, Donald Trump`s former Chief of Staff is saying that before he left the White House he made a very specific warning to the President, don`t hire a yes-man to become Chief of Staff, because that itself could risk the road to impeachment.

(BEGIN VIDEO CLIP)

JOHN KELLY, FORMER WHITE HOUSE CHIEF OF STAFF: I said whatever you do don`t hire a yes-man - someone that`s going to tell you --or won`t tell you the truth. Don`t do that. Because if you do, I believe you`ll be impeached. Someone has got to be the guy that tells you that you either have the authority you don`t or you know Mr. President don`t do it because whatever.

But don`t hire someone that will just you know nod and say that`s a great idea Mr. President, because you will be impeached--

(END VIDEO CLIP)

MELBER: Because you will be impeached, a warning that echoes tonight. And I should tell you it is quite the busy news night. I am here, as mentioned, live from Philadelphia. I want to tell you why I`m here briefly.

Earlier today I was co-moderating in Town Hall on criminal justice reform from inside one of the largest prison facilities in the U.S. I was joined by candidates Kamala Harris, Cory Booker and Tom Steyer, that`s why we`re here. And we`ll bring you more of that later in the show.

But we begin with the big news and the big guests that I`m thrilled to tell you who`s right here next we in Philadelphia, Jeffrey Rosen, President and CEO of the National Constitution Center, quite fitting. I should also mention he has a book conversations with RBG that`s coming out next week.

I`m also joined by Craig Green, a Law Professor here at Temple University in Philadelphia and we have many other guests from around the nation as part of our special tonight. But we begin here from a straight up investigative point of view and the law often revolves around what you can prove, not just what you think.

How do you view this evidence tonight from Mr. Sondland who is a Trump buddy, to use a non-technical term, saying forget what I texted, forget what I wrote, it`s a quid pro quo.

JEFFREY ROSEN, NATIONAL CONSTITUTION CENTER, PRESIDENT & CEO: The fact that he says that he told the President that it was a quid pro quo seems especially significant, because it makes it harder for the President to claim that no one advised him of that and it does clear up any ambiguity they may have been left by the text. So in that sense, as you say, it`s quite significant.

MELBER: Craig do you agree?

CRAIG GREEN, TEMPLE UNIVERSITY, BEASLEY SCHOOL OF LAW: I do. I think that right now we`re - for both of your leading stories we`re in the middle at the beginning. So I think that the impeachment vote and I think Sondland`s testimony shows this inquiry is very serious, the allegations are very serious and the potential evidence being collected is very serious.

We can`t know exactly what the evidence says, but I think all of the steps forward are those. They`re steps forward I think Sondland`s testimony is just exactly.

MELBER: Jeffrey, as we think about the system that the Founders created, I don`t want to lean too hard into Philadelphia, but you do run the darn Constitution Center--

ROSEN: Which is right across the mall--

MELBER: Right over there. I can see it.

ROSEN: Isn`t it beautiful? It`s the most inspiring site on the mall.

MELBER: I don`t want to overly plug what you do, but it`s wonderful. I`m literally looking at a wall that says "We the People" over there. That Constitution was built not just for good times, but famously for challenging times.

The impeachments that we`ve seen, whether you go back to Johnson or the procedure that was leading up to Nixon where time for the country was very strained. It is not unique to 2019 that people sometimes have different ideas and different views of the facts.

I wonder what you think of the way that the Democrats today are saying they`re using this process. I want to play for you Adam Schiff who`s now the front man of the investigation, which eventually could or will be turned over to the Judiciary Committee. Here is Schiff using these powers afforded to him under our Constitution.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): I think we can infer from the White House opposition to Dr. Kupperman`s testimony that they believe that his testimony would be incriminating of the President. But we move forward, and we will obviously consider as we inform Dr. Kupperman counsel, his failure to appear as evidence that may warrant the contempt proceeding against him.

(END VIDEO CLIP)

MELBER: The distinction there being this is not normal times where you play it out and you debate whether someone can come into the Congress. Congressman Schiff, with the clear backing of Speaker Pelosi today saying, we`re going to keep tabs of who doesn`t show and it`s going to be evidence towards a potential impeachment of Donald Trump.

ROSEN: That`s right. And it`s absolutely right, the Founders created impeachment for bad times. They had George Washington before them. But realized that they might have someone else, which is why Washington himself made an exception to his executive privilege claims for impeachment, which he said the Congress should have access to.

And here it`s not a criminal trial, so Congress is allowed to use Fifth Amendment pleas for adverse inferences. And more significantly today it`s a big deal that there`s going to be a formal vote, because this puts us in the same territory as the Nixon impeachment. Nixon began in secret. There was grand jury testimony. But then there was a formal vote and they appointed counsel for both sides and after that Congress had much more legal authority to ask for what it want.

So although in fact this may not play out in court, because the Democrats want to move this quickly and don`t want to wait for Court rulings, constitutionally the fact that this is a formal impeachment investigation gives the Congress very broad power to seek the information it wants.

MELBER: And Craig are the Democrats then in your view on firmer ground? Because what they`re telegraphing tonight and we don`t yet have the full resolution is, a process of how they`re going to deal with evidence, how they`re going to release depositions so that the public can see what they`ve gathered.

And how, if the report or whatever the Intelligence Committee finds, is at a certain level they`d refer to the Judiciary Committee, which is where impeachments usually go.

GREEN: Yes. I think it`s very important one thing to remind everyone of is that the Democrats in the House are really just the investigation. They`re more like the grand jury, if you want to think of it that way, are preparing the indictment.

There will be a trial with all kinds of procedures designed by Mitch McConnell and Senate Republicans that awaits sort of behind door number two. But this is both a constitutional crisis in one sense where the Republican President is stonewalling and misleading and obstructing.

It`s also a credibility crisis. Because I think a lot of Americans - 30 to 40 percent of Americans don`t actually seem to mind what the facts are. I think the President could shoot someone in Fifth Avenue is sort of the vernacular. And I think that that`s a real - that`s actually in some ways the more serious crisis.

So I think when we approach the vote and think about that, more than thinking about the procedures, think about people going on record. Republicans in particular, going on record of whether they even support inquiring about the kind of allegations and the kind of evidence that I think all of America knows is there.

MELBER: Yes. And you`re speaking of the evidence, which is the big question here, which is does the accumulation of evidence, including this bombshell of Trumps own person saying it`s a quid pro quo, change the calculus in the Senate?

There`s a lot of cynics who say nothing changes anything. Of course, the last couple weeks have shown, Wow, whistleblowers and facts can change a lot.

GREEN: And could I jump in? I think that the impeachment proceedings are less about removing a President than they are about finding the truth. I think this stage of the process, if you don`t support an impeachment inquiry on the evidence that`s available, then I think you`ve chosen President over country.

MELBER: Right. And I`m you and you`re speaking as someone who`s following the rules and the evidence, not rooting for a particular side.

I want both you to hang with me here in Philadelphia, but because this is "THE BEAT," it`s not just the Philadelphia beat. I want to go to someone that many of our viewers will recognize, NYU Law Professor Melissa Murray, who often guides us through these big impeachment news days lately. Good evening to you.

MELISSA MURRAY: Hi. How are you?

MELBER: I`m great. I`m thrilled. I`ve got a lot of energy from being out here and thinking about a lot of different parts of criminal justice today. As mentioned, we`ll get to some of that later in the hour. I want to play for you Vice-President Pence on the same issue that that got basically the White House all nervous today with this Sondland testimony which comes back to the heart of it. Was there a quid pro quo bribe or not. Take a look.

(BEGIN VIDEO CLIP)

MARGARET BRENNAN, CBS NEWS SENIOR FOREIGN AFFAIRS CORRESPONDENT: Are they lying?

MIKE PENCE,VICE PRESIDENT OF THE UNITED STATES: I can only tell you what I know.

BRENNAN: But did you have the knowledge of the deal that these U.S. officials have described under oath?

PENCE: What I can tell you is all of my interaction on this issue focused entirely on three things--

BRENNAN: did have knowledge of what they`re describing or no?

PENCE: We stood with them - we stood with them to--

BRENNAN: I- I haven`t gotten a clear answer--

PENCE: Of importance to the American people.

BRENNAN: --from you on that though, sir. Are you saying that you did not ever hear of such a deal?

PENCE: All of my conversations with President Zelensky, were entirely focused on issues of importance to the American people--

(END VIDEO CLIP)

MELBER: What`s happening there professor?

MELISSA MURRAY, LAW PROFESSOR, NEW YORK UNIVERSITY: Lot of bobbing and weaving for someone who`s not in the ring. That`s a lot of evasion for the Vice President, someone who ostensibly would have some knowledge of what was going on with regard to the talks with Ukraine.

He was the one who was withdrawn from President Zelensky`s inauguration in favor of Rick Perry - of the Rick Perry made me do it defense. So, obviously, he has a little bit of knowledge about what`s going on here and he is avoiding answering those questions directly.

MELBER: And when you see that avoidance, do you have a sense there is a single impeachment defense strategy coming out of this White House or not, because one of the things that`s most striking and we have a little bit more on this later in the hour as Republicans are voicing their concern with more panic and more leaks.

Is that you have Mulvaney trying to say, well maybe there was a quid pro quo and it`s cool, and then going no I didn`t say that. You have Pence saying basically I don`t care how evasive I look, evasive looks better than admitting a quid pro quo. And then you have these other officials that we report at the top of the hour saying, yes, there was one.

MURRAY: So it seems like there are a couple of different threads here that are being woven together. So one is this idea that there is no quid pro quo at all, like I don`t know what you`re talking about. There was no quid pro quo. Then there`s the idea that there`s always a little bit of pressure and pressure brought to bear in diplomacy and this is just one of those situations and it`s of no moment.

And then there`s the issue that there was a kind of quid pro quo, but maybe it wasn`t necessarily about Biden but about this question of corruption and fighting corruption more generally on the world stage. Either way, Vice President Pence`s inability to answer the question directly and to evade in such an elaborate way really gives someone pops.

MELBER: What does it mean to you as someone who`s been following this so closely and we`ve even had these debates on our show about how far to go. Some viewers may remember a great exchange you had with councilor John Flannery where you were saying that pre-Ukraine you understood why Speaker Pelosi wasn`t going farther.

What does it say to you that Speaker Pelosi by the evidence or by the process is now scheduling this vote Thursday, something we have yet to see in the Trump era, which is a formal floor vote moving towards the potential impeachment of President Trump.

MURRAY: I remember that exchange and I remember I took a lot of heat from your viewers for being a quote unquote "Pelosi toady." But I think she kind of had the lay of the land here and she--

MELBER: Well, professor, I hope our viewers - I hope our viewers didn`t use that any such language. Our viewers love you. But go ahead.

MURRAY: Well, some of them did not love me after that. But I ain`t stick by that. I think she understood the lay of the land. I think she understood that she needed something that would really stick, not something that was nebulous, but something that was really firm. And what could be more firm and comprehensive than these allegations. These are really important and really big.

And now that she`s moving forward, I think again you have the Republicans on the rope. Look, last week the Republicans were talking about the procedure - the procedural irregularities. No one wanted to talk about the substance whether or not the President of the United States withheld foreign aid in order to get a foreign government to investigate a political rival. And what could be more damning than that?

So I think she actually made the right call. I stand by my decision. I stand up to all of those who called me a "Pelosi Toady." I think I was vindicated.

MELBER: Well that`s great, that`s why these - the conversation like the news keeps going so you get to update on that. My special thanks to Professor Murray for joining us. I also want to thank Craig Green who is right here with me in Philadelphia.

And for you Constitution fans you should know that Mr. Rosen stays as we get into some really interesting precedents that the Democrats are looking at later this hour.

I`m going to fit in a quick break. But coming up the moment when Donald Trump ran into the impeachment banners and booing in public, some say humiliating at the World Series, a lot of eyes on that.

Also new anxiety from Trump`s own allies in Congress, Republican Senator says impeachment has turned into a quote "horror movie" for the party later. Neal Katyal joins to break down the impeachment vote and whether the rope-a-dope legal strategy has reached its end.

And then some news today from my interviews - these are exclusive to us. You`ll only see it on this show with Democratic Presidential candidates. There I was with Senator Harris. We`re speaking inside a prison facility there. All of that up ahead. I`m Ari Melber. And you are watching THE BEAT live from Independence Hall in Philadelphia.

(COMMERCIAL BREAK)

MELBER: Something you don`t see every day. President Trump getting an unplanned and unvarnished view of how impeachment is actually playing out among some members of the public, it didn`t go well.

(BEGIN VIDEO CLIP)

MELBER: Watch right here. Donald Trump steps outside of his White House bubble and goes to Game 5 of the World Series in Washington on Sunday, only to see an enormous "Impeach Trump" banner hanging in the outfield, behind home plate "Veterans for Impeachment" signs and then there was this loud boos following the announcement of Trump and the first lady`s attendance.

ANNOUNCER: --our President and first lady--

CROWD: Boo.

As you can hear, that went on and on. The crowd also followed up with some chants of "Lock him Up," bringing to the stadium and that`s the reaction of some members of the public.

(END VIDEO CLIP)

MELBER: Meanwhile, there are many anonymous worried Republicans who appear to be sending up flares. One Republican Senators saying that, "The problematic public arguments from Donald Trump, combined with a series of evidentiary bombshells makes it all feel like a horror movie."

Here to discuss is Jason Johnson, Politics Editor for theroot.com. Good evening to you, sir. How do you think it`s all playing there and in Washington and the crowds and how that affects these senators who could ultimately be under the impeachment system, Donald Trump`s jurors?

JASON JOHNSON, THEROOT.COM POLITICS EDITOR: Well, it`s not just Donald Trump who heard those boos, Ari, it`s all the Republican Senators. Right? And, yes, Washington DC is a bit of a blue place. But all these red hats were not MAGA hats. It was regular people, moderates and conservatives, who were screaming and yelling and booing.

And I think this is important to understand. A lot of times Presidents are in these sort of varnished environments, they`re in there in meetings, they`re in colleges where only a couple of students are able to speak to them and they get an impression about how the public feels about them that`s not true.

This was an opportunity for the President to see the country, at least in this particular place, is not behind you, people are upset with you. And the very same game that he threw at Hillary Clinton off "Lock her up" is now being thrown back at him.

MELBER: Yes. And I think we on this show have criticized and reported on the problems with a kind of a circular politicized of notion of lock them up, whoever they may be, if it isn`t pursuant to the justice system.

Having said that, of course, the politics of it are pretty obvious as you say, it suggests a real heat and energy. And it`s not just people who are in the so-called resistance of the Democratic Party.

Steve Bannon has widely been seen as an advocate of Donald Trump. He was literally the number one person on the 2016 campaign when they won. He closed out his Chairman into November. Here`s what he had to say about who he thinks is winning this debate right now. Take a listen.

(BEGIN VIDEO CLIP)

STEPHEN BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: I said you got to wake up to this process that Nancy Pelosi is running. She`s running the most sophisticated political warfare and they`re winning right now. She has the votes, as sure as the turning of the earth. In a couple of weeks Nancy Pelosi is going to bring two charges in front of the House and they will vote peach Trump and pass it to the Senate.

(END VIDEO CLIP)

MELBER: Jason?

JOHNSON: Look, Steve Bannon is a smart guy. And here`s the other thing, Ari. You mentioned before Republicans are complaining, "oh my gosh, this is a horror movie." What, is it us or are you tethered? You don`t have to be tethered to the President. Republicans have the ability to get themselves out of a horror movie. Even though the call is coming from inside the House, the Senate still has some power here.

And the problem is you have too many Republicans who have to have a screaming crowd at a baseball game that the Nationals lost before they realize that staking out an independent path might be a better decision for them.

Steve Bannon has always been somebody who`s very good at acknowledging strategy. Nancy Pelosi knows where she`s going with this. The vote later on this week is going to lay out ironclad rules, so Republicans can`t claim that they don`t know the process anymore. I think now is a time whether you decide that you`re going to support President Trump or not.

As a Republican you need to have a clear reason and not just one that works on the talk shows, one that you`re going to be able to explain back in your district at home.

MELBER: Yes. And that`s the final question I want to ask you. I`m speaking to you on a week that is kicking off with the House and Speaker Pelosi setting the agenda. The President is responding to the evidence they`ve unearthed, to the schedule they`re setting to a Thursday vote. As mentioned, that`s new and big, and nobody knew two months ago that this week the House would be doing that. This is Speaker Pelosi driving it.

And I wonder what you think about how Donald Trump has struggled to handle her, which really builds out of your answer to the last question, as in contrast to Mr. Mueller who ran by, as he was supposed to. Didn`t run a political game, didn`t run a public game.

But in that private confidential and very careful process Mr. Mueller in the public eye was obviously sometimes overwhelmed by other louder forces, be they Mr. Barr, Mr. Trump. And yet here Donald Trump looks in a public fight over evidence, he looks out and outmaneuvered this week by the Speaker.

JOHNSON: Right. Well, because Robert Mueller was concerned with what he constrained himself with. Right? Robert Mueller said I`m not going to do this, I`m not going to do that. I`m going to stop leaks. So he was never able to fight the PR battle that many Democrats and sort of resistance people wanted to.

Nancy Pelosi knows the PR battle. Nancy Pelosi knew how to set the 220 Democrats. Think about this also, Ari, 24 hours ago the President was crowing about the fact that he defeated ISIS. We`re not talking about that anymore. By Thursday we`re going to be talking about the pre impeachment vote.

Politically and communications wise, Nancy Pelosi is for once running circles around him. And the problem is, if the President can`t figure out a way to change this narrative, not only is he obviously probably going to lose the impeachment vote in the House, but he will lose support in the Senate.

And the real question is not going to be whether or not he gets removed, I don`t think that happens. But if this continues to go back from a messaging standpoint, you could see five, six, seven, eight senators - Republican Senators make symbolic votes for impeachment because the President can`t explain himself and they`re tired of taking arrows for him.

MELBER: Yes. And I don`t know if you`re right or not, but I do know that the reporting does suggest that what you`re saying is quite plausible, because Republican Senators aren`t just saying now let`s sit through a few bad weeks and move on.

JOHNSON: Right.

MELBER: They`re throwing up these warnings, these blind quotes. They`re trying of maybe some would argue in a very secretive way, because they don`t want to put their name on it. But they`re not saying hey a Republican somewhere said we`re losing. It says Republican Senator.

And if you are the President facing impeachment, senator in your party is the most important person in the world until you know you`re not convicted. We know that from history. Jason, always good to chop it up with you, sir.

JOHNSON: Thank you so much.

MELBER: Thank you. We have much more ahead on this special edition of THE BEAT live from Independence Hall. Democrats trying to use Donald Trump`s stonewalling against him. All that and more when we`re back in 30 seconds.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SCHIFF: If this witness had something to say that would be helpful to the White House, they would want him to come and testify. They plainly don`t. We are not willing to allow the White House to engage us in a lengthy game of rope-a-dope in the courts, so we press forward.

(END VIDEO CLIP)

MELBER: House Democrats today announcing they have new strategies to try to prevent President Trump stonewalling the impeachment probe. Not only the Full House floor vote, authorizing the probe, which we`ve been reporting on, but also this new plan to confront witnesses who try to bail that includes Charles Kupperman, a top Trump security official who just went ahead and skipped a scheduled deposition today.

Now, Kupperman has been arguing that he`s not actually defying anything lawfully, because rather he`s formally asking a judge to simply rule on whether he has to testify. Democrat state are not putting up with any more delay tactics and they may try to hold him or others in contempt.

These fights could also impact many other critical witnesses, from John Bolton to Rudy Giuliani, to some of the other people you see here. "The New York Times" reporting the President has greater powers to shield from Congress his conversations with close aides and greater pull on the loyalties of those potential witnesses.

Now we all know these court battles can take years. Today Democrats announced they are done trying to use the courts to force testimony here, instead saying basically enough is enough. This is an impeachment probe and officials who resist cooperating will be treated as accomplices to the mounting evidence against Trump.

I`m joined now by former Acting Solicitor General Neal Katyal. He argued dozens of cases before the Supreme Court and is here as always for "Opening Arguments." Good evening, sir.

NEAL KATYAL, FORMER FEDERAL PROSECUTOR: Good evening.

MELBER: Neal, what do you make of this piece of the strategy?

KATYAL: I think it makes a lot of sense. Unlike past investigations of this President, this is one in which Schiff and Pelosi and the House of Representatives already have the goods. Donald Trump gave it to them, because he turned over the transcript, which wasn`t even a full transcript, but whatever that memorandum of the conversation was on July 25th. And that itself is so damning.

So really the President is the one behind the eight-ball. It`s only testimony that can remove the day the real taint here that he committed high crimes and misdemeanors. And if he`s going to order people not to testify and so on, I think Schiff is absolutely right in saying, look, I don`t need that. I don`t need any of this.

I mean, Ari, the technical legal term for all of these fights and stuff like that is gravy. They don`t need it. They`ve got what they need. And as you said at the beginning of this show, Ambassador Sondland was the only thing Trump had, the only evidence he had. Who he said, well, Sondland said at one point it wasn`t a quid pro quo, and even he`s backed away from that. So the White House is in a terrible, terrible position and Schiff is exactly right to do what he did today.

MELBER: Sometimes you and I have potentially intricate conversations about the law here. The next question I have for you is very straightforward. For people watching who say, well if Mick Mulvaney comes out and gives a long press conference about the details of this, the Ukraine, the bribery, quid pro quo, we do it all the time. Why would he or others be able to then say to Congress this stuff is so privileged and so special to my private advice the President that I can`t talk to you about it.

KATYAL: Yes. It makes no sense whatever. The Mulvaney two-step is like the Trump two-step. It`s like they go and talk about all this stuff and blabber about it in front of the national audience. And then they say oh it`s covered by confidentiality and executive privilege.

I mean these claims are totally made up, Ari and no responsible scholar would support them. Which is why just three days ago, the chief judge in DC - Judge Howell repudiated everything the President has been saying about how this impeachment inquiry allows him to claim these privileges and the like.

She called it - she called it, "it smacks a farce," that`s a quote from her opinion. And this was quote stonewalling and she was exactly right.

MELBER: Well, you mention that opinion which is going to be appealed, which is exactly the kind of cases that you would always argue, including for the Obama administration. And I have another short quote from the judge on all of this about, well, they don`t have to turn over the Mueller materials.

And she also said "The DOJ is just wrong." What happens then to this appeal, because unlike the witnesses where they`re saying, look we don`t care, the actual underlying Mueller - redacted Mueller parts they wouldn`t get until, as I understand, that appeals process is resolved or exhausted?

KATYAL: Right. That`ll move very quickly in the courts. That is information about the Mueller investigation, not about the Ukraine one. So I think the Democrats are right to say, look, we`ll do that in the court. We don`t need it. It`s all gravy for purposes of the Ukraine impeachment proceedings. But we`ll get it.

And Ari, I do you think it`s important to note that we do have historical precedent for cases like this moving incredibly fast. When we look at the Nixon tapes case he`s tried to file a case to say I have executive privilege on May 1st in the same court the Judge Howell in the DC District Court on May 1st 1974.

The Supreme Court ordered that case, heard him on an expedited basis right from the trial court. They skipped the Court of Appeals with a decision on July 24th, just a couple months later. So this could move quickly. But I think the point here on what should Representative Schiff recognizes, it doesn`t need to move quickly, because Ukraine is different and they have the goods.

There`s one other I think interesting piece about Judge Howell`s opinion, Ari. Remember Nancy Pelosi said to President Trump, I don`t need a formal vote for impeachment. He said, you needed otherwise it`s so illegitimate. She said, no. And then you have this judicial decision saying you don`t need a formal vote of impeachment.

And now, in what can only be the technical legal term here, I guess, that we lawyers would call it as a "baller move", Pelosi says, I`m now going to seek the formal vote of impeachment. And I think the reason for that is she knows she`s got the goods. The House of Representatives has the goods. The President is going to be impeached. It`s in black and white in what he said on July 25th.

MELBER: I always love it when Neal Katyal gets into the legal equivalent of balling. But I think you make such a such an interesting point there for those who are following as closely, and I know a lot of our viewers are, which is that, the Speaker waited to move from a position of strength.

They`ve laid out at one procedural victories in court to show they don`t need to do this. And that they`re not doing in response to the President, which is also a posturing victory and then they go ahead and do it, because ultimately in the ordinary course, eventually, you do have floor votes. That`s where they`re headed. So it`s fascinating to get your view on that.

Neal, I want to mention a couple things before I let you go here, as I say thank you and goodbye, which is you have a new book coming out. We want to mention that here on THE BEAT as friends of Neal Katyal, it is called "Impeach: The Case against Donald Trump." So I have suspect we`ll be drawing on some of your lessons there.

As well as if there is a if there is a Senate trial your knowledge of John Roberts. So, sir, we`re going to be keeping you busy. All right?

KATYAL: Thank you. Great to see you, Ari.

MELBER: Thank you Neal. Appreciate it. Up ahead, we go inside the impeachment clash in history that actually came closest to removing a President and why its newly relevant for Democrats tonight as they make these moves.

I have a very special guest, I`m excited, first time on THE BEAT when we come back live from Independence Hall.

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MELBER: Many compare the Trump impeachment probe to Nixon. But as Democrats plan their first impeachment vote here this week, some are eyeing lessons from other impeachments.

Like the impeachment of another President entirely, Andrew Johnson, who found mounting opposition after defying Congress, stoking racism and undercutting the norms of even an admittedly rougher era as he publicly mused about hanging his opponents.

While Clinton and Nixon faced the prospect of a handful of articles of impeachment, Johnson`s case actually shows how Congress can go big and throw everything and the kitchen sink at a President. The House impeached him on - do you know how many?

11 different articles, including some that really sounded like opinions, like the view that he simply brought "contempt, ridicule and disgrace on his office" at the time some warned it could be overkill. But Johnson actually came closest to send a conviction within one vote on one of what turned out to be one of the broadest articles against him, which tried to combine many different alleged offenses.

So with so few precedents in this area should Democrats take any cues from that impeachment? Well, that`s our special discussion right now and on our special show, we turn to a very special guest who`s really quite perfect for the topic. Lawyer and historian David Stewart who wrote the book on this, "Impeach: The Trial of President Andrew Johnson and the Fight for Lincoln`s Legacy."

And since this is all about the Constitution, I am rejoined tonight by constitutional scholar Jeffrey Rosen. Good evening to both of you.

When you looked into the Johnson impeachment and you wrote this book, which I should tell you, I`ve read, and you really go into depth about that debate over whether to go broad or not. And that brought, ultimately, many of Johnson distractors thought worked. Tell us about that and do you think any of that applies potentially to Donald Trump?

DAVID STEWART, AUTHOR, "IMPEACH: THE TRIAL OF PRESIDENT ANDREW JOHNSON: Well, it`s going to be a tradeoff. If you put sort of a lot of charges together you have a chance of picking up extra votes, somebody thinks Charge A is a problem, somebody thinks Charge B is a problem, somebody else thinks Charge C is, and you get them all together.

Alternatively, though, it can be a negative. Because, frankly, when you`re prosecuting, complexity is an enemy. And simple is better and public opinion is going to drive impeachments at the end of the day.

So I think probably certainly in today`s soundbite world a simpler impeachment article is probably going to be more effective.

MELBER: Interesting. So your lesson from Johnson, not stipulating where you fall on these issues, but your lesson is, if you do want to impeach a President - as many in the Congress are on record wanting to do, you say simple and fewer articles a number of articles?

STEWART: Number of articles I`m not as interested in. But I do think an article should be clear and simple and easy to understand. This is a political process. Nobody is going to vote for impeachment unless they think the voters want it or at least most of them want.

You don`t get a lot of profiles encouraged in these votes. And so in order to mold public opinion and bring it around simple is always going to be more effective.

MELBER: Jeffrey what do you think?

ROSEN: I agree, simple is better. And the lesson of the Johnson impeachment was don`t impeach on legal technicalities. Remember Johnson is acquitted in the Senate because the Senate thinks that the Tenure of Office Act - this law that he`s impeached under, itself is unconstitutional and the Supreme Court later agrees.

In retrospect, it would have been better to impeach Johnson for subverting reconstruction, refusing to enforce the Reconstruction Amendments and openly defying the rule of law, even if he didn`t technically violate a statute.

So in light of that, rather than focusing on whether there were technical violations of campaign finance laws, this - the House might do better to say it is corrupt to accept a quid pro quo in exchange for foreign aid whether or not it technically violates the law.

MELBER: Right. And as many - as scholars have pointed out, technical violations of laws passed many decades after the impeachment clause, obviously don`t control what`s impeachable, which is kind of a common-sense thing that can get lost.

David, as I was reading your book, the other thing I`ve been dying to ask you is. I couldn`t help but notice in the Johnson case - and he`s not a President who`s necessary remembered for a lot of other things, although, he certainly remembered for the impeachment.

You have the lack of legitimacy. The fact that so many people in the country saw someone that was stoking racial divisions, appealing to hate and didn`t ever have the support of the voters, because he came to office to assassination.

In the Clinton case, very different set of facts, but many Republicans felt that he never won a majority because of these three-way races and there was always this idea of legitimacy.

And in the Trump case, where we are on the verge of a vote Thursday, that could lead ultimately to an impeachment vote, you have someone who literally got fewer votes and many Americans feel is illegitimate for a range of reasons I don`t need to repeat.

To you as a historian think that Presidents who come in with a tangible problem with their legitimacy or public support are ultimately more likely to face impeachment?

STEWART: I think it`s a factor. But if you look at Richard Nixon, he had a massive electoral win in 1972 and he ended up obviously on the road to impeachment. So I think what`s also very important to keep in mind is the nature of the presidency.

Impeachments don`t happen early in a in a term. They happen after a while, after there`s been amassed evidence about how this individual works. Because the vote that`s cast is a vote as to whether this individual is so abused his office that he is not fit to be President. And that Trump impeachment has not started until 34 months into his presidency, with Andrew Johnson it was also 34 months into his presidency.

And one of the questions people are going to be asking themselves, and Senators and Congressmen will ask themselves is, is this behavior characteristic? Is this what he does?

Or the contrast I would draws with the Clinton case, he presented himself as performing competently as President. There was no reason to remove him. Yes he had this bad problem. But it wasn`t about he how he was President. So I think you got to notice the whole context of the case.

MELBER: It`s fascinating to hear you lay that out, given the history and the legal history, which is part of our focus too our special. David Stewart, thank you so much. I suspect we`ll be calling on you again, and Jeffrey Rosen here from the National Constitution Center, my thanks to you as well.

I`m going to fit in a break and then get into some stuff we haven`t had time for yet, including 2020 Democrats joining the inside a prison facility right here in Philadelphia and taking questions from former prisoners, that`s up ahead.

(COMMERCIAL BREAK)

MELBER: Turning to another important story. ISIS leader, Abu al-Baghdadi was killed this weekend by U.S. troops. Tonight, we want to share exclusive reporting on this raid, NBC News, Chief Foreign Correspondent, Richard Engle, uncovering some of the extraordinary backstory.

(BEGIN VIDEO CLIP)

RICHARD ENGEL, NBC NEWS CHIEF FOREIGN CORRESPONDENT: They had someone inside Baghdadi`s inner circle. Once he was in the compound, once he was in Baghdadi`s different safe houses, he was able to describe them, understand the layout, understand distinguishing features. The CIA was able to use those descriptions provided by this very well placed human intelligence source and pinpoint the ISIS leader`s hideout.

This source, run by Kurdish intelligence, managed to steal Baghdadi`s used underwear and a sample of his blood.

(END VIDEO CLIP)

MELBER: In addition to the Engel`s reporting, we want to show you this drone video which actually shows how U.S. forces leveled the compound where Baghdadi died. The pentagon revealing two men were captured in the same operation. They have videos and photos of the raid, some of which may still be released to the public. We`ll keep you posted on this important story.

And when we come back, as promised, I want to share with you some highlights from a very important piece of reporting we did at this former prison joined by three different presidential candidates, discussing criminal justice and mass incarceration.

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MELBER: We`ve been joining you live from right here in Philadelphia tonight, because I just spent the day at a sprawling former prison here with three Democratic Presidential candidates. It was at a forum about criminal justice and mass incarceration.

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MELBER: You`re looking at some of the shots inside right now, and this is unusual because each interview was conducted with moderators and audience questions by people who`ve served in prison or been directly impacted. That is, obviously, quite a major shift and how these issues are usually addressed and in who typically leads the discussion. So right now we want to show you some of the highlights from the forum today.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

MELBER: Why was it important you to come have dialogue with people who have served time, with family members who`ve been through this? Why is it important that these voices are part of how we pick the next President?

SEN. KAMALA HARRIS (D-CA) PRESIDENTIAL CANDIDATE: These are the leaders. This is this is a room of leaders who understand what is actually happening in the system and who know that that if we are - again, if we`re going to be true to our values, and if we want healthy communities. If we want to be true to the values of redemption, we have to agree that the incarceration system of America is one of the greatest failures of public policy in our country.

SEN. CORY BOOKER (D-NJ) PRESIDENTIAL CANDIDATE: I am surprised and angry, and this is a chance to have a conversation with formerly incarcerated people and we have three - three candidates showing up? I`m sorry, that is unacceptable.

TOM STEYER (D) PRESIDENTIAL CANDIDATE: This country started with massive, deliberate, legalized injustice and racism.

HARRIS: America`s criminal justice system has child separation policies. The goal should be healthy communities, because healthy communities are safe communities.

STEYER: The way you get the right policy is to go to the community that`s affected and get their experience, their wisdom--

HARRIS: So much of what has led to America`s mass incarceration has been based on domestic wars - the war on drugs. That was a war on our own people.

MELBER: Are you talking about pushing back against what can be the malicious impact of profit industries here? What needs to happen given your expertise in that field so that people like you and your hedge fund don`t make those investments in the first place.

STEYER: And I realized this is just wrong, and so I sold it. And I`ve always felt like, boy, I was really dumb I regret it. It was a mistake and so I corrected it on my own.

BOOKER: We criminalized poverty, we criminalize people struggling with addiction, we criminalized people struggling with mental health.

STEYER: So let me ask you guys a question, is there anyone in this room who doesn`t think Donald Trump should be impeached? Thank you.

HARRIS: I mean if you want to talk about a threat to nation`s security, talk about Donald Trump.

UNIDENTIFIED MALE: True. Impeach (ph).

HARRIS: I know.

BOOKER: Freedom, it is the most sacrosanct value we profess in our country. Liberty, freedom and we were a nation that is violating those fundamental aspects.

(END VIDEO CLIP)

MELBER: It was my honor to co-moderate this discussion and it`s an important part of how we think as citizens about who should be President that actually were joined both on the stage in the co-moderation and in the audience questions by people who`ve been impacted by this.

So often in our criminal justice system, as I said today at the forum, people are disappeared, they`re silenced and they`re never heard from again. Today was a small part in changing that and it was an honor to work with those individuals and hear from some of the candidates. So we wanted to share that with you.

That does it for us, THE BEAT live from Philadelphia tonight. I`ll be back tomorrow at 6:00 p.m. Eastern. Don`t go anywhere. "HARDBALL" with Chris Matthews is up next.

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