Pres. Trump bails TRANSCRIPT: 12/6/2019, The Beat with Ari Melber

Guests: Maya Wiley, Russ Feingold, Pramila Jayapal, Erin Banco, John Flannery, Jeremy Harris, Michelle Goldberg

CHUCK TODD, MSNBC HOST: My two lead guests, the House Judiciary Committee Chairman, Jerrold Nadler and Republican Senator, Ted Cruz. Nadler and Cruz, this Sunday.

The Beat with Ari Melber starts right now. Good evening, Ari.

ARI MELBER, MSNBC HOST: Good evening Chuck. Great guests. We`ll be watching on Sunday.

We have a lot to get to here on THE BEAT this Friday night. The White House responding just moments ago to Congress` offer to participate in these high stakes Monday impeachment hearings. Also, tonight, new heat on Rudy Giuliani`s trip to Ukraine. Could he be in more trouble for the way he`s talking to witnesses? And we`ll have more on some of the most important revelations in the Democrat`s impeachment report, if you`ve been watching this show you know we`ve been breaking news night-by-night assisted by that new evidence, some of which you may not have heard about yet. But we begin now with breaking news.

The White House making it official they will not participate in this next impeachment hearing on Monday. Donald Trump formally refusing to present any kind of evidence or even engage with what will be the first witnesses presenting direct evidence of the Ukraine plot to this Judiciary Committee. That obviously matters because as you probably know by now this is the committee that will be writing any articles of impeachment against the President.

Note that this decision also very clearly breaks with bipartisan president in both the Nixon and Clinton impeachment investigations, those presidents participated. Now one reason is simple cooperation, even past presidents who faced allegations of obstruction wanted to show some sense of cooperation. Another is mere self-interest. Who is going to defend you better than your own paid employees?

Skipping the hearing also denies Trump the opportunity to offer defenses on the record. Consider for example in all fairness that today the White House has pushed back on some of the evidence from this impeachment report that Rudy Giuliani was speaking to budget officials and they have every right to do that in the public realm and we`ll report to you what their defense is, but we`re also past the journalistic piece of this story and by skipping next week`s hearing.

Think about it, the White House is actually giving up the opportunity to make that case directly to the Congress, directly under oath to say if it is true that there was no contact with the budget officials, the people writing the articles of impeachment need to know that. But the White House doesn`t get to just say it. Somebody has got to come through and say it under oath. The news tonight is Donald Trump taking the gamble, but they`re not going to do that. They`re going to boycott the process as some sort of maybe potential signal to his supporters and ultimately Senate Republicans that the best way to deal with the overwhelming evidence in that report is to just ignore it, just pretend that 300 pages don`t exist.

But those pages will be detailed and subject to examination when the Intelligence Committee lawyers who did so much of that questioning in those hearings that so many Americans watch, well, they`ll now be up on Monday to face questions of their own and their answers matter because Speaker Pelosi says members are already drafting the articles of impeachment.

Preparations also already underway in the Senate for that rare thing, the trial of a sitting President and some members are saying today anything can still happen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Have you spoken to a single Republican colleague in the Senate who`s even considering voting for impeachment?

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED MALE: You have?

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED MALE: OK. Would you like to name him?

UNIDENTIFIED MALE: How many. How many.

UNIDENTIFIED MALE: It`s a small list on one hand.

(END VIDEO CLIP)

MELBER: I`m joined by former Wisconsin Senator Russ Feingold and Maya Wiley, Former Counsel to the Mayor of New York City and also worked in the legendary Southern District of New York Civil Prosecution Office.

Good evening to both of you. Maya, the point I raise is one in all seriousness, in all fairness, if there is real evidence that those calls that appeared to be say budget calls between Rudy and the White House or something else. Let`s have the discussion with real evidence under oath, isn`t the White House missing an opportunity there?

MAYA WILEY, FORMER COUNSEL TO NEW YORK CITY MAYOR: The White House is missing an opportunity, if by bringing that evidence, it helps them. I think the question is, why was Rudy Giuliani having so much contact with the White House during these crucial periods of April and August.

You know if and so I think it will - the question they have not said at least nothing that I`ve seen has said, no, Rudy Giuliani wasn`t actually having contact with the White House there. They have to concede that. So, it still creates the question and the appearance certainly that he was deeply engaged and things that had nothing to do with an appropriate role for the personal attorney of the President relating to, unless they can say, it did.

MELBER: Senator Feingold, you know we like to do our homework around here. We don`t just show up at 6 and chitchat. Although, we`re happy to have you, put out a little Wisconsin cheese and chitchat on a Friday night is perfectly fine.

RUSS FEINGOLD, FORMER WISCONSIN SENATOR: Sounds good.

MELBER: So, our team was researching your history on this, you are one of the few people in America who has ever cast a Senate vote on the procedures as well as the final - the final decision on a presidential impeachment and you were independent, you even broke with your party on that, which is interesting with all the talk of this rare precedent now coming back as we see a Trump impeachment. Let`s take a look at that history tonight.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: There were two critical votes today and the Republicans held all their members in line, votes to dismiss the trial and to subpoena witnesses.

UNIDENTIFIED FEMALE: On both votes today, only one lawmaker broke ranks. Russ Feingold of Wisconsin opposed fellow Democrats voting against dismissal and four witnesses.

(END VIDEO CLIP)

MELBER: It`s fascinating. I wonder if you could educate us on why you felt it was important then to make sure there was a thorough trial process, regardless of where people might have been headed in the ultimate vote and what you think the Senate`s obligations are now.

FEINGOLD: Well, it seemed very clear after the House said impeach President Clinton, I really didn`t understand why they would take that step, especially as a lame duck House. But the Constitution was very clear that the Senate had to have the trial and every single one of us Ari was sworn to do impartial justice, so help me God.

And so for me after having taken that oath and having listened to the House managers and listened to the President`s lawyers, I thought look, there is a culpable case here for obstruction of justice, but I don`t know whether it would meet a legitimate standard for proof unless I get to see some evidence.

But what the Democrats tried to do, Senator Byrd leading the charge of course with Senator Daschle was to dismiss the case before we could see any evidence and even deliberate on the evidence. And so, I thought that was wrong and a violation of my oath. So, I voted to hear the evidence. I had a chance to look at the depositions and I ultimately concluded that the President - that the standard had not been met for convicting the President.

But I would urge the senators in this impeachment trial to do the same, to say look, let`s actually have the trial that the founders of this country insisted on and not abuse a process. Otherwise Ari, I think the senators are complicit in covering up the acts that Trump has committed, because they turn the trial into a farce.

MELBER: You served in this institution. You bend not only on the Senate floor, but in those private cloak rooms, which I wasn`t anywhere near you, but I was a staffer, so I would watch people like you when I worked in the Senate and there was sometimes more collaboration or comedy across party lines behind closed doors than in public. I wonder if you can give us any insight into what you think any of your former Republican colleagues are thinking privately, do you think any of them are pained at the prospect of looking at all this evidence particularly the national security stuff and cosigning it and saying this is going to be fine.

FEINGOLD: I think they are. And there are some senators who were there at the time. I won`t mention who it is, who actually came to me and said, let`s sit down with a constitutional law professor and have lunch and let`s talk this over together, a Republican senator. And it was a real process where we really struggled with it. We really looked at the law. We really looked at the facts and as colleagues, not as a Democrat and a Republican, we did that kind of consultation.

And I think that should be the way in which senators should approach this. The truth is, the proceedings started off pretty well in the Senate in terms of agreeing on the process, but I think the point at which it really almost got off the rails was by dismissing the case too soon and I am very hopeful that the entire trial will occur because the Constitution demands it. And frankly, this President has committed such serious offenses. There should be a vote on the final issue of whether to convict the President. It shouldn`t be short circuited.

MELBER: Maya, I don`t want to make Senator Feingold blush here, but I do think it`s fair to say whatever one`s politics, the Senate could certainly use more people like that who are willing to go against party who say let`s hear the evidence. I wonder your reaction.

WILEY: My reaction is exactly the same. I really appreciate your comments Senator. And in particular, given the evidence that we have seen in the House Intelligence Report, which is put together in a way that makes three things clear and I think they came out clearly, it represented Raskin you know really summarized it well in his questioning of the constitutional scholars.

He said, there`s evidence of all three things that the founders were worried about, which was one was abuse of power for personal gain. The other was you know sacrificing the national security. And the third was literally interfering in our electoral process. And that all three of those, there is evidence for all three of those here, so how can the Senate not do exactly what Senator Feingold is suggesting.

MELBER: Both of you stay with me. I want to bring in another special guest as we turn to one of the live questions here. Should Congress write articles of impeachment that are focused just on those national security issues, Maya was mentioning just on Ukraine or go back as some would put it into the Mueller Report, into alleged obstruction, other abuses. Speaker Pelosi noticeably won`t say either way yet.

WILEY: Yes.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Do you want to see elements of the Mueller Report or these other investigations?

REP. NANCY PELOSI (D-CA): I`m not going to tell you that.

UNIDENTIFIED MALE: Articles.

PELOSI: My Chairman will be making recommendations.

UNIDENTIFIED MALE: Do you have a personal view on that.

PELOSI: Our counsel, our lawyers, our chair, the staffs of the committees have been sensational, and we`ll look to them for their judgment.

(END VIDEO CLIP)

MELBER: Joining our conversation, Congresswoman Pramila Jayapal who serves on the Judiciary Committee. Congresswoman let`s take a look at a key part of what you were saying in that momentous Wednesday hearing.

(BEGIN VIDEO CLIP)

REP. PRAMILA JAYAPAL (D-WA): If we don`t stand up now to a President who abuses his power, we risk sending a message to all future presidents that they can put their own personal political interests ahead of the American people, our national security and our elections and that is the gravest of threats to our democracy.

(END VIDEO CLIP)

MELBER: Where do you come down on how many articles there should be, and does it include past alleged obstruction in the Mueller case?

JAYAPAL: Well, Ari, all of that is being discussed right now since the speaker assigned. Chairman Nadler and our committee to look at articles of impeachment. We`re still in that process, but I will tell you this, what we saw with Ukraine is so much worse than what we saw with the Mueller Report. In this respect this all happened while the President was in the White House as the President of the United States. This complete abuse of that office and of the sacred trust that voters have given him to conduct their business, not his business but their business.

And at the end of the day the ultimate thing that I took from those legal scholars on Wednesday is that this ability to interfere in the election and to actually take that process that gives the power that the people have to the president is through the election. So, if the president is abusing his power to interfere in our elections that really is the gravest threat to our democracy.

MELBER: Right. And I think it`s almost clear you can tell us if we`re wrong. But it`s almost certainly clear that there will be at least one article of impeachment on the Ukraine issue because that`s what the whole intelligence report is about. But as you know and a lot of our viewers know because people are following this pretty closely, there`s only 10 weekdays left until Congress adjourns for the end of the year. Mitch McConnell is keeping January wide open for this potential trial.

If I`m going to press you as such. Have you and your colleagues aren`t ready with 10 days out to tell us whether or not obstruction from Mueller is impeachable. You know to paraphrase someone, if not now when?

JAYAPAL: Well, I as you might know, I read the Mueller Report three times because we had that hearing with Robert Mueller and I came out afterwards and said that I thought that there were acts in the Mueller Report that were impeachable acts, at least five of the 10 instances of obstruction of justice.

What occurs to me is however we draft these articles. They are literally showing a pattern of behavior a pattern of abuse of power, a pattern of obstruction of justice and a pattern of you know subverting the nation`s highest office for personal political gain.

So, I do think that showing that pattern in the articles that we draft is very important. This is not the first time that this President has done this. President started with Russia, are you listening, went onto the White House lawn and said China, I would like you to engage. Now we see Ukraine unfolding in front of us. So, I do think that that pattern that was documented in the Mueller Report is very important to include.

How that gets included, I don`t know yet. And obviously that`s a decision that the Chairman and the Speaker are going to have to also weigh in on. So, we`re in that process but I think there is a lot of information.

MELBER: And that reminds me, one more thing I wanted to ask you is Chairman Schiff also taking the lead in writing these articles?

JAYAPAL: Chairman Nadler is the lead on writing the articles, but of course with all of the chairs who have been involved, they`re all going to be a part of that consultation process and Speaker Pelosi is our leader in the House is obviously going to have a big say in all of this as well.

But Chairman Schiff, the Intel Committee will present their report not the Chairman, but the council will present the majority report and the minority report. The fact that the President does not want to come and testify says everything about how weak his defense is, and I agree with Maya on this. If he had a defense, he would come and testify. The Republicans would question not just process but would actually question facts. They`re not doing that. And I think that just says everything about the President`s defense.

MELBER: Yes, that jumped out a lot to us as well. Pretty striking choice and as mentioned really breaks with bipartisan precedent. Congresswoman making time for us after the busy week you`ve had, we greatly appreciate it. Thank you for coming on THE BEAT tonight.

JAYAPAL: Thank you, Ari.

MELBER: Appreciate it. I want to keep our other two panelists and put up some newspapers. Russ Feingold, you have dealt with Washington and what happens--

JAYAPAL: All right. Thank you so much. Thank you.

MELBER: In the rest of the country. Take a look at how this is playing in a couple different ways because those of us in the Nationals are following closely. But here`s the Chicago Tribune where you see that Wednesday hearing that so many of us followed hour-by-hour main big story, three legal scholars outline the case for impeachment, it`s obviously the biggest thing there and anyone who missed the hearing or was busy working two jobs or picking up their kids from practice still is going to see that sooner or later.

But contrast that to what we found in some other parts of the country Senator. Here`s for example, the Tuscaloosa News front page, you can see like so many places. It`s not the top story. It`s not the second story. Other important things, real things, local things. And it`s really tucked away there below the fold and I wonder what your view is about how important it would be for Speaker Pelosi`s case to get this to break through around the nation, not just to people who tend to follow things closely.

FEINGOLD: Well, this is where the congresswoman was so right about talking about showing the pattern. I mean I`m not sure that the answer is to actually send over all kinds of articles of impeachment. There`s nothing wrong though with the Judiciary Committee looking at all of these things, so people across the country can see the variety of offenses that the President has committed.

Maybe they send only a couple of ones over to the Senate for a trial that are much more clean and specific. But to educate the public about the pattern that this administration has conducted is absolutely crucial so that the American public understands if it`s clear to the United States Senate that this man should be removed from office, which I of course think he should. But it`s better that you have more public support for it, even though I think the Senate has a clear duty to act regardless of what the level of public support is.

MELBER: And we have a lot in the show tonight, and I only have 30 seconds left. Maya, your final thought.

WILEY: Ditto. The short answer is, I think it`s actually really important that they include articles of impeachment on obstruction, because that is a key component whereas Representative Jayapal said substantial evidence. That`s what Mueller Report said on some of those instances of obstruction and the President is still doing it. And so, it`s not disconnected, it`s in fact the very reason why there wasn`t more evidence related to Russian interference in the elections and context with the campaign where various forms of obstruction of the investigation.

So, I do think those are important. I think they should be included, and I absolutely agree with the senator, there has to be more development of more evidence on some of these other issues that are clearly serious. But in order for the public to be brought along and to understand them.

MELBER: Really interesting to hear you`re thinking laid out here. Maya Wiley, Senator Feingold, thank you and have a great weekend.

FEINGOLD: Thank you.

MELBER: I`ll tell folks watching coming up, we have new reporting on Giuliani`s trip to Ukraine with questions about whether anything he`s doing might open him up to witness tampering investigations. We`re also on the trail of those missing $35 million of military aid. It still hasn`t gone to Ukraine, a report we brought you first here on THE BEAT. And key revelations in the impeachment report that we haven`t told you about yet. We`ve been digging in and have those for you later tonight. Plus, a very special fall back Friday tonight with our friend Michelle Goldberg and a play writer behind one of the most provocative new shows on Broadway, Jeremy O. Harris. That`s also tonight, I`m Ari Melber and you`re watching THE BEAT on MSNBC.

(COMMERCIAL BREAK)

MELBER: President Trump and his aides have done many controversial things and several criminal acts, which is why so many Trump advisers are convicted or incarcerated now. But nothing that any of them did when you think about it has taken President Trump closer to impeachment than Rudy Giuliani`s bumbling incriminating trips to Ukraine which makes it truly remarkable that as the House moves towards impeaching President Trump, this week Giuliani was back meeting with prosecutors in Ukraine.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Rudolph Giuliani under investigation for his role in Ukraine is in Ukraine tonight.

UNIDENTIFIED MALE: His business dealings with Ukraine are being investigated by the Southern District of New York. But that`s not stopping Giuliani from reportedly traveling to Ukraine and continuing his work that is under now so much scrutiny.

UNIDENTIFIED FEMALE: What is wrong with Rudy Giuliani? How is he actually in Ukraine possibly doing the criming that we are discussing at this very moment?

ERIC BOLLING, FOX NEWS HOST: What`s the Ukraine trip all about?

RUDY GIULIANI, PRESIDENT TRUMP`S LAWYER: I am doing today all day and all night maybe, what I`ve been doing for a year and a half. I`m representing my client.

(END VIDEO CLIP)

MELBER: I guess he had to go back to paraphrase Biggie Smalls, he`s going, going back, back to Kiev, Kiev. He`s going, going back, back to Kiev, Kiev. And that has everyone asking why? If Giuliani is pushing the exact same plot that`s actually getting Donald Trump impeached this month that would be bad. And now even some of Donald Trump`s closest Republican allies will not defend this Giuliani trip.

(BEGIN VIDEO CLIP)

REP. MATT GAETZ (R-FL): I think it`s a little weird that Rudy Giuliani is over in the Ukraine right now and I`m not here to defend Rudy Giuliani. You know there is apparently an investigation going on and that`ll go where it goes.

(END VIDEO CLIP)

MELBER: So that`s the response to Giuliani pushing this same plot. And there`s also another possibility that`s very important. Rudy Giuliani knows he`s under investigation and he used to run these kinds of probe, so he knows that means possibly surveillance. He also just watched his call records get splashed across every TV in America from the voluminous impeachment report which cited him yes 500 times over just 300 pages.

So, if Giuliani does want to speak to witnesses in Ukraine who know about what he did without leaving even more evidence and phone calls and records, he may be willing to take this risk. The type of trip that even Republicans won`t defend just so he can talk to these people in person in Ukraine, to these key witnesses.

And as a general matter anyone who tries to shape testimony to alter a probe to try to shape what other witnesses say can end up on the hook for witness tampering, a whole separate offense. So, there`s more than one thing that could trip up Giuliani`s trip in Kiev, back home Congress is still combing through this report. And here`s some evidence that hasn`t got some as much attention yet that we want to show you. His calls to NSC official Kash Patel and including a half an hour conversation followed five minutes later by Giuliani speaking to that mysterious negative one, who Democrats strongly suggest may be Donald Trump.

As a personal lawyer to the President, Giuliani doesn`t have a chain of command or a legitimate role in discussing national security policy with the Security Council or classified material on this staffer. We should note has a political link and that they used to work for Devon Nunes. Now what was discussed, well if it was classified government business that answer might be privilege right. But Patel now seems to be waving that argument claiming this was all just a lengthy personal phone call discussion.

(BEGIN VIDEO CLIP)

KASHYAP PATEL, WHITE HOUSE STAFFER: That was a personal conversation that I was delighted to have with the former Mayor of New York City, where I grew up and we discussed personal things.

UNIDENTIFIED FEMALE: Not Ukraine, not the hold on military aid, not the Biden`s or investigations.

PATEL: No.

(END VIDEO CLIP)

MELBER: Here`s the problem with that denial. If it was really truly personal, those things aren`t classified and probably not privileged. Giuliani is the President`s lawyer, not Security Council which means Congress has a good shot at compelling Patel to testify about all of it especially if it`s in a closed session. And while this report does not venture into much of what was discussed, it adds damning evidence that Giuliani and Trump may have incorrectly viewed Patel as a Ukraine point person, one witness saying Trump saw him as "NSC`s Ukraine Director and asked about related materials".

And this is where the plotting meets the bumbling at least according to the narrative in the report because star witness Fiona Hill who knows this stuff really well testified that Patel wasn`t the Ukraine Director, but that Donald Trump`s sudden interest in micromanagement stood out as damning because he had never otherwise asked to speak to any NSC directors before about anything. Leading to the concern that this was another Ambassador Sondland like problem, a representational fixer role not for security, but for the politics he was doing for the Ukraine plot.

And she added, this whole thing bottom-line was a red flag. This raises a lot of big questions because this report has so much in it so many front- page level bombshells that everyone is just trying to make sense of it as the Congress rushes with as mentioned 10 workdays left to decide if they`re going to do impeachment.

So, what does this new stuff mean both for the criminal case that involves potentially Giuliani as well as the impeachment, well the reporter who has been all over the Giuliani story is here with us live when we`re back in 30 seconds.

(COMMERCIAL BREAK)

MELBER: I`m joined by The Daily Beast Erin Banco, who`s been reporting on the Giuliani beat for some time. Her new piece has been making waves today about this ill-fated Ukraine trip. Thanks for joining me.

ERIN BANCO, THE DAILY BEAST AUTHOR: Thanks for having me.

MELBER: Your headline in Ukraine, freaking out Trump`s lieutenants and Giuliani doesn`t care. What did you find in your reporting about this trip?

BANCO: So, we originally hopped on this story a couple of days ago when the news first broke. And what was sort of alarming to us speaking to top Trump administration officials is that no one really seemed to understand what exactly Giuliani was up to overseas.

Some people we spoke to knew he was on a flight from Rome to Budapest and then on to Kiev. But no one really seemed to know exactly who he was meeting with or what he was doing. But then as we continued to talk to these officials, they began to learn exactly what Giuliani was doing overseas and started to sort of raise the alarm bells, hold meetings, conversations. And this is in the upper echelons of the Trump administration senior officials.

And so what we learned is even as Giuliani`s continue to meet with these people, top NSC officials and other people in the state department are getting information about sort of the ins and outs of the Giuliani meetings and sort of sitting around and asking the question, what`s Giuliani doing, right.

I think they were really surprised by the visit to Kiev. I don`t think anyone was expecting it. I think some people knew that Giuliani was headed to Budapest. We`re not prepared for him to land in Ukraine.

So, they were pretty alarmed, these people that we were speaking to for this story.

MELBER: Yes, and hanging over this, as you and others have noted is the open investigation, you report on the awareness of the surveillance. Everyone now has seen all the call records and you write that it could be unwise for even Trump allies to contact Giuliani at this time, given how his text messages and phone records have become a topic of congressional investigation, plus SDNY.

What do you think of the theory that has been put out there that he wants to talk to you in person precisely to avoid that potential surveillance?

BANCO: I don`t have any direct knowledge about that, but what`s interesting is we did talk to individuals who had spoken to Ukrainian officials and representatives close to Zelensky who had advised those individuals not to meet with Giuliani, specifically--

MELBER: Right. This is not the time.

BANCO: This is not the time. Don`t go near him. And the message that they got back was, don`t worry I`m out of town or I wouldn`t even dream of it. But what we do know is that several politicians in Ukraine did meet with Giuliani.

MELBER: Sure.

BANCO: Giuliani is meeting former special prosecutors. He`s meeting members of parliament who have dispersed information about the Biden`s and disinformation I should say in the past.

MELBER: Let me play you one more thing which is, I just sat down with one of Giuliani`s sort of contemporaries, a huge legal star also sort of in his 70`s had a long career and we discussed briefly the other issue here which is what happened to Giuliani as some of his even friends would put it, take a look.

(BEGIN VIDEO CLIP)

MELBER: What happened to Rudy?

STEPHEN SUSMAN, TRIAL ATTORNEY: I think he went crazy. I mean especially I know people used to respect him. He was America`s mayor. He was not going to be on anymore afternoon talk shows. He was not going to be important anymore. And so, you`re looking for a way how can you become relevant.

(END VIDEO CLIP)

MELBER: In your reporting do you see any concern among the White House that some of what Giuliani is doing, well he says it on behalf of Trump may also be his own issues or needs?

BANCO: I think it`s definitely concerning officials that you know he`s even overseas at this point, but I think we have to look at this in the larger context of what we know about Mr. Giuliani, right. We know that he has continued to say that he`s simply just representing his client, which is Mr. Trump, President Trump. But we also know that Rudy Giuliani has a knack for going overseas and trying to find business. And so, what we don`t know is what else is going on behind the scenes in Budapest, in Kiev and elsewhere around the world.

You know there have been reports that have come out over the past six or eight months or so that Giuliani and his associates are sort of strapped for cash, are looking for money. And so, in that context, I think both of those things are concerning for top officials, the sort of conflation between Giuliani looking for business and then Giuliani representing President Trump because that line is thin.

MELBER: And representing President Trump ostensibly for free but getting paid by someone to go on these big trips and do all this work. Erin Banco, we`ll be coming back to you.

BANCO: Exactly.

MELBER: For more of your reporting. Thank you so much. When we come back--

BANCO: Thank you.

MELBER: New evidence demolishing a key impeachment defense.

(COMMERCIAL BREAK)

MELBER: Now, a newly revealed impeachment evidence that actually shreds a core Trump defense that you may have heard from the President himself. As we reported right here on THE BEAT this week this comes from a key part of the House impeachment report that quite frankly has flown under the radar so far and it demolishes a key defense, Trump allies have been saying and you`ve probably heard this one of the defenses has been to claim that that military aid frozen from Ukraine ultimately all reached Ukraine.

  (BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: And the real bottom line is he got the money; Ukraine got the money.

REP. JIM JORDAN (R-OH): The Ukrainians did nothing to as far as investigations goes to get the aid released, so there was never this quid pro quo.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: As far as withholding funds, those funds were paid. They were fully paid.

(END VIDEO CLIP)

MELBER: Note Trump there, falsely claiming the funds were "fully paid." Let`s hear just that part again.

(BEGIN VIDEO CLIP)

TRUMP: As far as withholding funds, those funds were paid. They were fully paid.

(END VIDEO CLIP)

MELBER: Fully Paid. False. First of all, it`s not a valid bribery defense to say, your bribery didn`t work. What`s new here in the report is the way they`re lying about this. As a factual matter, the House impeachment report reveals those funds did not fully get to Ukraine not last month, not ever. Page 145 of the report, Pentagon officials confirming to investigators Ukraine still has not received $35 million of the security assistance yet to be dispersed.

35M, that`s a big deal. That`s in fact 14 percent of the entire amount in the alleged extortion plot. Now how big a deal is this. A Pentagon official under oath confirming that money never got to Ukraine in the impeachment hearings.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Ms. Cooper, was DoD able to put all the security system funds into contract before the end of the fiscal year?

LAURA COOPER, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR RUSSIAN, UKRAINIAN, AND EURASIAN AFFAIRS IN THE OFFICE OF THE UNDER SECRETARY OF DEFENSE FOR POLICY: No sir.

UNIDENTIFIED MALE: And how much was were they not able to obligate what was left on obligated.

COOPER: I believe the figure was 35 million.

(END VIDEO CLIP)

MELBER: I`m joined now by former federal prosecutor John Flannery who has been counsel to three congressional investigations quite the right expert. Good evening, sir.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Good evening.

MELBER: We talk about law. We also talk about facts. There are legal defenses and failing and bribery is not a good legal defense. Then there`s factual defense isn`t so focusing your laser analysis on the factual part here. Do you view it as important that the impeachment report surfaces the fact that when Donald Trump says Ukraine got fully paid that itself is false?

FLANNERY: I think that`s significant. And it sorts of shows that he just can`t let it go. And he still is pushing it. And perhaps that`s why Rudy`s over there as well. But one of the important things about it was $35.2 million and it was important to the national defense because these items go for grenade launchers, secure communications and naval combat craft. And that`s an important thing for a vulnerable nation joining Russia that has involvement, military involvement in a hot war that`s still going on in Ukraine.

So, he`s having it both ways. He`s claiming that it was paid fully, and it wasn`t it shouldn`t surprise us that he lied. But not only do we have them holding back the funds and for no good reasons. Vindman testified that when they held the funds and then released it, there was nothing substantial that had changed on the ground that would require them to withhold the funds at any time.

So, this 35 million which happens after that is not withheld for any good reason either and nobody at the Pentagon can give us a reason. And so, what we have is we have more proof of the misconduct for bribery and extortion and abuse of power and obstruction because he`s lying to the public even as sitting here.

MELBER: So, John --

FLANNERY: Yes.

MELBER: There is the case and all the facts in the report and then there`s how you present it. I want to put up on the screen the President`s false claim that we have dug out of the report to fact check because when you look at that image of him saying fully paid, you have a report that really fact checks that. Or we can maybe tee it up if we want. Do we have in the control in the video? We could do the short version. Do we want to see that - Donald Trump claiming fully paid?

(BEGIN VIDEO CLIP)

TRUMP: As far as withholding funds, those funds were paid. They were fully paid.

(END VIDEO CLIP)

MELBER: Fully paid. I wonder if folks are hearing about this from legal experts, from journalists. Do you think the Democrats if they`re going to make this case have to get that fact out stronger and larger because you can write all the books and reports you want?

FLANNERY: Right.

MELBER: But what the public and the Senate deal with is what is actually known top of mind, right?

FLANNERY: Well, how you would try this case in the Senate is significant because you would take out magic moments in this case. I mean for example the readout on July 25th. That`s a magic moment. But you take that statement you just did and you show him to be a liar by then showing the transfer of funds and using the other tape or the witness again to demonstrate that and that same witness I believe said that there was an inquiry by the Ukrainian embassy on the very day of the July 25th call about where`s our money, which is what anybody would expect of a nation that`s under arms and concerned about what Russia can do in the eastern province where the separatists are active on behalf of Russia.

So, I think how you try this. Yes.

MELBER: One out of eight bucks is real missing money. It`s shrinking.

FLANNERY: It is.

MELBER: Mr. Flannery, often a legal witness for us tonight. A bit of a fact witness, if you`ll permit. I don`t even know if it counts as a legal joke, just a legal reference. We appreciate you in all of your expert testimony, sir.

FLANNERY: Well, I appreciate it. It served me to have read the thing. But there are pearls in them that are hills or gold, I guess. And it`s worth a read and the read is going to be what brings down this President one way or the other. He`s going down and you know the Republicans who think they could vote for this - vote to save this guy in the Senate. You know one month after that trial is over. Whatever the result is, he`ll do something else while we`re still trying to get rid of him, because he was convicted or because he`s beginning his campaign.

MELBER: Well, we`ll be keeping an eye on all of it. Mr. Flannery always good to see you on this Friday night. Thank you. Coming up, a very special fall back Friday with Michelle Goldberg and play writer Jeremy O. Harris.

(COMMERCIAL BREAK)

MELBER: Breaking news, Friday evening in Washington, Chairman Adam Schiff still at work. This letter breaking in our hour. Formally calling on the Trump administration to do something unusual and declassify part of testimony given by a key aide to guess who, Vice President Mike Pence.

Schiff saying, testimony from Jennifer Williams has additional information about a call that Pence made to the Ukraine President in September, another indication that Schiff is hard at work and obviously Mike Pence, an interesting figure when there`s an open impeachment probe into his boss, the President.

Now up next, we have a very special guest rebutting some of the most common arguments that Trump defenders make about impeachment right now.

(COMMERCIAL BREAK)

MELBER: And now it`s time to fall back. I am joined by a play writer who is taking Broadway by storm right now. Jeremy O. Harris, critics and crowd buzzing about his award winning and controversial debut show Slave Play opened at the Golden Theater in New York City. He`s also won playwriting accolades including the Lorraine Hansberry Award and we`re joined by our friend New York Times Columnist, Michelle Goldberg, member of a Pulitzer Prize winning team and the author of three books including The Means of Reproduction, which won the Ballard Book Prize. Great to have you both on fall back.

MICHELLE GOLDBERG, NEW YORK TIMES COLUMNIST: Thank you.

JEREMY O. HARRIS, PLAY WRITER: Thanks for having us.

MELBER: Very exciting and I saw your show we`ll get to that, but let`s start with what`s on your fall back list.

HARRIS: So, there`s a lot of things my fall back list. My number one thing on my fall back list is probably the radiation night story to find so insane, because I think that everyone at Trump`s administration needs to fall back from talking to like famous pop stars about who should be released from jail.

MELBER: And this one`s really wild, I happen to love hip-hop. I think Death Row Records put out a lot of great music. But I would be against pardoning, shouldn`t I.

HARRIS: Yes. And I also think that for me it`s very odd that someone that seems to be so far from any sort of sense of social justice would take any case upon himself to take to the White House and that it would be taken seriously. The thing that`s kind of interesting about Kim Kardashians like advocacy is that like whether you like Kim Kardashian, whether you like her show or whatever, she did actually align herself with so - it was like a social justice movement before she went to the White House to like talk about like letting off a litany of people.

MELBER: And she`s advocated for non-celebrities.

HARRIS: Yes, yes. And that`s - I don`t know, there seems to be more altruism there even if people have a lot of other issues with her. And in that case this one on the other hand seems purely like a spectacle.

MELBER: Michelle, what`s on your list?

GOLDBERG: So, the thing that has been driving me crazy throughout impeachment or one of the things that has been driving me crazy amid this sort of tsunami of disinformation in bad faith has been the claim that you hear that impeachment would overturn the will of the people because the thing that the constitutional mechanism that overturned the will of the American people was the election, right? That it was the installation of Donald Trump in the White House despite losing the popular vote. So, I would say, fall back is the Electoral College.

MELBER: Well, the Electoral College itself and that talking point could fall back. And then as a second point maybe not as important as your first, but if we can tag team. The Constitution provides for this remedy. So, to say that the remedy itself overturns the will of the voters is really just to say we don`t have rule of law, but in fact, the whole point of rule of law is that you have these rules that govern the people in power. And if the President is lawfully removed, the Vice President who ran on that same ticket takes the place.

So, it`s not like he loses the administration--

GOLDBERG: And the only reason that we have cede to the legitimacy of this administration is because we are willing to recognize constitutional provisions over the popular will. You know and then as an aside at every point in this process at least since the revelation of this quid pro quo plot impeachment has had more popular support than the Donald Trump presidency ever has.

MELBER: Anything else on your fall back list?

HARRIS: Stephen Miller was on my fallback list and his email chain. And again, the sense that the White House could come out publicly and say, we know this man. We know him deeply and we know that he hates bigotry. Obviously, his name is Stephen Miller and he is a Jewish man. What Jewish man do you know that likes bigotry? That`s psychotic.

(CROSSTALK)

MELBER: We`re talking about him.

HARRIS: Yes.

MELBER: Your play is very interesting. I`ve got to see a very controversial. I`ve got to ask you the question that every play write hates. For people who haven`t seen it yet, watching across the country, what are you trying to say with this play?

HARRIS: I want people to be able to watch this play and walk away. But wait a second, I think so many things aren`t racist that are racist all the time. And I didn`t even realize, it`s so ingrained into the DNA of our country, in the DNA of my body that like I haven`t like processed the weight of chattel slavery in our country`s DNA and all.

MELBER: And something else is obviously difficult or uncomfortable for a lot of this in the public realm. Your play is highly sexual in its exploration of American racism. Why?

HARRIS: Well, I mean I think that like sex is at the core of so many of our discourses right now. And if you look at the person`s like leading our country, sex is at the center of his discourse. You know like even so much of like who we know of Donald Trump with him as philandering, like misogynists who like has said publicly grab him by the P word you know. And so, I think that like this is a moment when we have to look at how all of these things have a nexus in sex and sexuality.

And I think that like this play is a great vehicle for that question, because also we`re all watching porn, we`re all having sex, we`re all like having big questions that we think that in this once based on our life, we`re alleviated from many of these questions. Actually, that`s what we can get to the truest most deep answers about what we do with power and how we wield it.

GOLDBERG: I saw your play, I never get to see any plays, but I may tend to see your play which was an absolute astonishment. And to me the most interesting thing about it is first of all is that the kind of it operates within the - within kind of a bunch of social justice assumptions I think and yet challenges the idea that you hear all the time that art is now really safe that you can`t say anything shocking anymore. I mean your play is profoundly shocking, right?

I mean I left it feeling sort of speechless and it was the first time and I don`t know a decade I feel like that I felt like shock was deployed productively in art to kind of open up, a part of you or a part of the discussion that had previously been closed.

HARRIS: Thank you. One of my professors said in a negative way it`s cool, it`s like you`ve just like released that nuclear bomb in the middle of the institution. And like what`s going to even happen and now I`m thinking like maybe I did, because maybe I like released this bomb to like to explode all of these walls, we put around this course, it flattens our discourse and makes it like one dimensional. These questions, this inquiry, three dimensional again because they are - there`s so much about sex, sexuality and race in our country and where we are now that we can`t figure out with just words.

We have to figure out beyond the words we know, and we have to maybe figure it out by hitting out gut in some place that shocks, maybe some sort of splinter from that explosion has to hit us for us to make sense of what`s happening.

MELBER: Shout out to flattening the discourse.

HARRIS: Thank you for having me, Ari.

MELBER: Thank you for having this conversation here on THE BEAT. And we`d love to have you back and we have Michelle back all the time.

Very interesting, if you want to flatten the discourse a little more, check this out in New York this Sunday. You can actually catch Jeremy Harris; you just saw on Chris Hayes`s live podcast. This is at the town hall in New York tickets at msnbc.com/withpodtour. That`s msnbc.com/withpodtour. If I were you, I want to go see Jeremy and Chris. So, check it out, if you have the time or in New York.

That does it for us. We`ll be back Monday 6:00 p.m. Eastern. I also have a special series this Sunday night, back 9:00 p.m. Eastern.

 

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