Fallback Friday. TRANSCRIPT: 12/13/19, The Beat w/ Ari Melber.

Guests: John Flannery, Brittney Cooper, Nancy Gertner, Peggy Noonan, HarveyFierstein, Byron Dorgan, Laurence Tribe

CHUCK TODD, MSNBC HOST: MSNBC, we`ll look at that historic vote on impeachment, where the process and the country go from here. Among my guest the Republican Senator Pat Toomey of Pennsylvania, a special group of voters from Grand Rapids, Michigan.

THE BEAT with Ari Melber though starts right now. Good evening, Ari.

ARI MELBER, MSNBC HOST: Good evening, Chuck. Thank you. We begin with breaking news altering the course of the Trump era. Today, the United States Congress took its most formal step towards impeaching President Trump. The Judiciary Committee passing two articles of impeachment, a move that came after two consecutive days of debate that ranged from solemn to rancorous to at times exhausted. Chairman Nadler ultimately adjourning a marathon session close to midnight bringing members back for this today.

(BEGIN VIDEO CLIP)

REP. JERRY NADLER (D-NY): Impeaching President Donald J Trump for abusing his powers, the clerk calls the row, impeaching President Donald J Trump for obstructing Congress, the clerk will call the row.

UNIDENTIFIED FEMALE: Mr. Chairman there are 23 Ayes and 17 Nos.

(END VIDEO CLIP)

MELBER: And that`s what it looks like, that`s what it sounds like, if you follow the news, you heard this was coming, you watched the process unfold or saw it on your phone or on the Internet. The hours that led up to what may seem like and its essence a kind of a little moment, a party line vote. But it is a vote that actually changes everything. It puts House Democrats on record and on track for a full vote.

The United States Congress on the House floor next week from what we can tell right now, there is no going back and if the House passes impeachment, it will then tap the managers who could act as prosecutors in this battle. You`re looking at just some of the famous faces under consideration and then it would tee up the Senate trial.

Republicans now rallying around a blatantly partisan approach. Senator McConnell saying he is going to do full coordination with Trump`s lawyers that actually may violate an oath that he has to swear. Excuse me. They violate an oath he has to swear. We`re going to get into that later tonight as well.

But before I go any further, I want you to just understand as we go and live through these times together that this is historic no matter how you count it up. Donald Trump on track now to become only the third President ever impeached and the first elected President to face such a rebuke in his first term, pause on that right there and understand that`s an asterix that`s far worse than steroids next to a home run record. That`s a historical blight on his record.

America has never done this. Never ever impeached a President elected in their first term. Never happened. And Donald Trump may not be a student of history, but he is certainly a student of ego and comparisons and he knows this, and he doesn`t like it. So, everyone out there who`s saying well if it doesn`t lead to anything or doesn`t change anything in the end, what does it even mean. Well, it means a lot. The Judiciary hearings may have, I would admit, exhausted viewers and participants alike. We want to show you right now briefly some of the important moments that got us here.

(BEGIN VIDEO CLIP)

REP. HAKEEM JEFFRIES (D-NY): We are here today because the President abused his power. We are here today because he solicited foreign interference in the 2020 election. He`s a serial solicitor.

NADLER: What are the consequences for our national security, for the integrity of our elections and for our country, if we fail to act.

REP. LUCY KAY MCBATH (D-GA): I am proud to have written a bill that was signed into law by President Trump. I am not proud of the President`s actions that bring us here tonight.

(END VIDEO CLIP)

MELBER: Not proud, but there we were. Now, the House is marching towards impeachment, Donald Trump`s advisers now admit he was basically lying when he spent those weeks claiming that he was down with impeachment that he wanted it to happen. The reports are now Trump views this as a "humiliation." The PR conscious presidency and coverage that history will now forever associate his presidency with Nixon Johnson and those other impeachment scandals I mentioned.

Another measure of Donald Trump`s anger. He broke his own record for tweeting during the Judiciary Committee markup and the ensuing process because he tweeted 123 times over a roughly 24-hour period. Another form of anger release.

Now today, President Trump gave extended remarks in response to this vote and as he spoke, we should note three of his top aides sat by. You can see them right there that were embroiled in the scandal, they`ve actually been called out by Congress for aiding and alleging the obstruction, Mike Pompeo, Mick Mulvaney, Mike Pence.

Donald Trump made several arguments today, some hyperbolic, some false. But it`s worth reckoning with some parts of the defense. The President laying out or his allies how he wants to fight this looming Senate trial and note that unlike some of the past discredited complaints about bias or witch hunts Trump also hitting on a defense of the Ukraine conduct itself.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It`s a witch hunt. It`s a sham. It`s a hoax. You`re trivializing impeachment. They would keep saying me, it said us, can you do us a favor, our country, our country.

(END VIDEO CLIP)

MELBER: The White House essentially backing up that argument releasing this new memo that says that well, military aid that was withheld from Ukraine temporarily was about U.S. policy, not some kind of political vendetta against the Biden`s. As all this is going down, the defense of Donald Trump`s Ukraine actions, where was Ukraine henchman Rudy Giuliani. Take a look. He went walking into the White House. This was right before the Judiciary Committee voted on those impeachment articles.

All this fresh off the trip to Ukraine last week, where he was again basically soliciting the very investigations and the type of meddling that Donald Trump is getting impeached over. Look at all this together and you see what Democrats are arguing, high crimes, they occurred, and they arguably continue to occur. A reminder of the ongoing stakes in this historic battle.

I`m joined now by former Federal Prosecutor John Flannery and Brittney Cooper, Professor at Rutgers. John, what does it all mean when you take together an event that was understood to be expected but now has happened?

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: I think what you have is exactly the historical drama that you`ve suggested, unprecedented in American history even among those three presidents who were impeached. You have Congress recoiling from a lawless tyrant who seems to have been encouraged to do worse and worse things until we hope now that he`s been labeled for the rest of his life as an impeached President. The next step of course is going to be a brutal one, which is the Senate.

We`re already going to be--

MELBER: And before we get there, because I`m going to sort of slow it down a little and this is one of the features of the press sometimes, we rush ahead to the next thing. We have a senator later with us on the Senate preview, but just on this history that now unfolded and Americans across all channels got a taste of the Judiciary Committee, the Republicans did their best. I want to play some of them to try to make it feel like it was all a bitter partisan crocus. It was as if it got loud enough that might tell Americans tune out the whole thing. I want to play some of the Republican sound. Take a look, John.

FLANNERY: Sure.

(BEGIN VIDEO CLIP)

REP. MATT GAETZ (R-FL): Democrats said that the evidence would have to be overwhelming. And you had a hearing after hearing, the evidence they presented was either hearsay, speculation and conjecture.

UNIDENTIFIED FEMALE: They had no proof. No evidence. No crime. But they went ahead anyway and they`re tearing the country apart. And they should be ashamed.

(END VIDEO CLIP)

MELBER: You can understand, John, for folks who don`t follow this closely and who don`t know what markups in these hearings typically look like, because you kind of zoom in and you go gosh, this is a loud hot mess.

FLANNERY: Right. It was.

MELBER: Walk us through your view of what I know you believe that that there are shortcomings to that that would be given credence to a bad faith attempt to hijack those hearings and then I`ll put the same question to Brittney.

FLANNERY: I don`t know that they succeeded in hijacking it. The Democrats held to a line of demeanor and facts and law. And it`s interesting that at one point it felt like we were listening to auctioneers when we listened to Collins or no jacket Jordan and they traveled through various things but didn`t address the actual facts before them. And they kept saying you know to read the readout then the misrepresent what it said.

I thought there were two critical patterns that were suggested during the debate yesterday in the markup. One was the notion that they would bet - they the Republicans would bend their knee to Trump perhaps out of fear, perhaps out of fear of a primary opponent should they not adhere to the Trump line of loyalty.

But the second point which underwrites I think all of the positions that they take defiantly and ridiculously without factual support or legal support is the notion that we got introduced to by Barr, and that is that under the article - under the second provision, the article of the Constitution, the President has this notion what Nixon said. The coral Ari that if a President does it, it is not illegal.

And I think that drives all their positions afterwards. There is the fear of Trump and there is the actual embrace of this position which is anti- Democratic, monarchical and slow an arc and it goes back to Hamilton and from Hamilton to Barr to this fight that we had in the Judiciary Committee and that we may have in the Senate, it goes back to that proposition. And once you take those two pieces together then you understand why they`re prepared to say and do anything and to look like a reality TV show.

The contrast between the Democrats and the Republicans yesterday was a study in good government and chaos. And the seeds of this we saw when they were having the hearings for the Intelligence Committee, when they went down and violated their own rules and tried to breach the security of that room when Republicans were in that.

MELBER: Right. And we had all the talk about the fact witnesses which of course we had heard from. Stay with me. I turn as promised to Brittney here with me in headquarters. I`m thinking about the stakes of this. Not the predictions. Not oh, well he gets away with a lot. But here we are gathered at a table in a newsroom talking about national news that is history. That even four months ago was not going to be. Give us your thoughts on all of it.

BRITTNEY COOPER, RUTGERS UNIVERSITY PROFESSOR: Yes. Look, one, I am totally amused by Republican hysteria about all of this. They are deeply scared about the symbolism of this and what it means. You know, we are subjected to a bunch of faux outrage in order to match the levels of outrage.

Look, I think Republicans are deeply angry at a country that they see slipping away and I think at the heart of that is a bunch of fear. But I also think that their outrage is pure theater. They know that these man - this man committed these high crimes and misdemeanors. He admitted to them on the television. We all saw it with our own two eyes, and I think that they are really trying to ask Americans not to trust themselves, not to trust our own moral compass about what is right and what is wrong.

I think it`s egregious the way that they`re willing to go along with the idea that it`s fine for foreign governments to interfere in American affairs and they are trying to normalize that. But the thing that is more appalling is that they are trying to normalize it with Trump as the exception. So, they are trying to say that under no other president would this be OK, but for Trump everything is fine and there is nothing that this man is ultimately doing for them.

He is a sinking ship. He takes everyone down with him. All of these folks around him have been arrested. And yet these Republicans, the party of family values, the party that the Christian Right loves is really telling the American public that it`s OK for our president to lie. It`s OK for him to cheat. It`s OK for him to steal.

And look, and I too I am a church girl and we say that it`s the devil who lies, cheats and steals and so they`re really saying that it`s OK for Donald Trump to really embody the worst of any kind of moral values and to frankly act like a devil. And I know I`m being provocative, but I`m trying to talk to them in a language that they understand which is a language of a sort of Christian morality which they have totally abdicated here.

I think in terms of the stakes.

MELBER: Well, I`ll jump in briefly and then let you finish.

COOPER: Yes.

MELBER: There are those who would say that that you are being unfair to any politician when you call them the devil. We have had Trump allies on the show, and we welcome them back if they want to respond. They have a president who was disparaging Greta Thunberg, a child who happens to be on the spectrum.

COOPER: That`s right.

MELBER: So, as you say, it`s going both ways politically. I just mention that because we bring all views here.

COOPER: Sure.

MELBER: But I`ll let you finish the larger point you`re making with the real thing that jumped out to me and I followed this closely, viewers may know, I`m part of just a lot of - like a lot of people watching it closely.

COOPER: Yes.

MELBER: And I keep thinking wow, the pretense that used to exist even in politicized Washington to say, but of course the Congress has this authority and of course we take it seriously. It needs at least on the House side hearings that went out the window for some of the minority party.

COOPER: We`ve got to ask - I`m sort of giving Republicans a hard time by calling Donald Trump a devil and I know that. But I`m also trying to pair the hysteria of what they`re doing, calling this a witch hunt, saying that folks are coming after him for no reason. We`ve got to ask why this man is worth the erosion of American norms that we have fought many wars in this country.

Many folks have lost their lives in order to secure these norms as things that we can all agree on and the party that claims to support our troops is really saying that those deaths were in vain. The Revolutionary War was in vain. The Civil War was in vain. World War I and World War II. These things that enshrined in American democracy, the rule of law, the separation of powers, notions of checks and balances, the peaceful transfer of power. These are Hallmark American values that these folks have wrote it because they want to assume that this is an attack on their candidate rather than that what they did was they voted for a president who does not respect American values. And now they`re being confronted with that.

MELBER: Right.

COOPER: And rather than holding him accountable and restoring integrity to their party. They instead want to erode American democracy solely for the purpose of being right.

MELBER: Yes, I think you were on a tear if I may.

COOPER: Absolutely.

MELBER: And I think your tear landed on a very significant point, which is look at the way this President is conducting himself on foreign affairs, on undermining democracy, on blatantly saying, they gave him a do over.

COOPER: Yes.

MELBER: Do you want to do this just to clean up corruption, do you have a better answer. Sometimes lawyers counsel a client.

COOPER: Yes.

MELBER: Maybe you did it for a couple of reasons. He said, no. I want a major investigation of the Biden`s. No, I want to cheat in the election, now is that impeachable. Only the Congress decides that, not my job to decide that. But if you take that seriously you have to weigh that evidence, not go and pretend it didn`t happen. Let me do some housekeeping. You`re staying with me in the headquarters. I`m releasing Mr. Flannery now, but I`m bringing him back later in the show to get into a whole another piece evidence, we have another chance, so we`ll see John soon.

And now, we bring in another special guest on our special broadcast tonight on this historic day, retired federal judge, Nancy Gertner now at Harvard who I have interviewed before on other topics. I`m thrilled to have you on this big night. How are you?

NANCY GERTNER, FORMER FEDERAL JUDGE: I`m good. I`m good to be here.

MELBER: It`s great to have you. I wonder as a judge who is so steeped in some of the words and concepts and terminology that fits into a quasi-legal process like impeachment.  What do you think is important for folks to understand happened today and where we`re headed? And by a corollary what should people tune out or not worry about?

GERTNER: Well, one of the things that I saw which is so, so troubling is this caricature that there is no direct evidence. Right. I mean one of the things I looked at, if there was no direct evidence in this case then all of the drug dealers that were ever convicted in my court should go free.

You have the President`s voice on the phone. You have the transcript of the President`s comments. You have co-conspirators describing what the President told them. You have Giuliani who is the President`s agent describing what he was told to tell other people. You have - you`re a lawyer, the thing called consciousness of guilt which is that where are the stories begin to change after the fact.

We have this really very substantial evidence to be sure there isn`t Bolton and Mulvaney and the others that Trump kept from speaking but there really is substantial evidence here which would have been sufficient in any court across the country. So, I`m troubled--

MELBER: Expand on that point.

GERTNER: People are being caricatured.

MELBER: Yes, Judge expand on that point, when you say this evidence against a citizen in court what would happen, what do you mean?

GERTNER: Well, for example, Giuliani is obviously Trump`s agent. He`s described himself that way. So, when he goes to the Ukraine and represents what he`s doing, what he`s digging up, he`s doing. What he says is essentially attributable to Trump. He is Trump`s agent and there`s no lawyer client privilege because he`s not functioning as a lawyer in that situation. He`s communicating what Trump has said to everybody else which is then not a privileged communication at all.

So, the tentacles of this evidence really look like much more substantial than the evidence I oftentimes saw in my court. It`s like you know this may be sort of an old fashioned reference, but it`s almost as if the Republicans are saying that unless this case is like the old Perry Mason TV Show where invariably someone who wasn`t Perry`s client got up in court and said, I can`t stand it anymore, I did it. But unless you have that, you don`t have substantial evidence.

But also, Ari, the best evidence--

MELBER: And shout out to Perry Mason, Judge.

GERTNER: Right. The best evidence of what Trump was doing is the horrified reaction of the nonpartisan individuals who are working for the civil service. It wasn`t just one, it wasn`t just two. As people saying oh, my goodness. And to some degree they`re drawing the inferences that all of us should have drawn.

MELBER: Well, and that`s why on this show we`ve tried to report out some of that evidence which is the Judiciary Committee is having a very lawyerly debate on the legal committee about what these things are, and they can hash it out.

As you remind everyone, it was a whistleblower, it was CIA folks. It was NSA folks, NSC, state, all saying whoa, we can`t do this. We don`t abuse the powers, military or otherwise, the United States government to take out rivals. You don`t have a democracy if you can do that, which is a chilling thing to think about. Briefly, yes. Then I`ve got to get a break.

GERTNER: No, but they understood that this was out of the ordinary and they understood that this was criminal. That`s why they went to the national security to the lawyers for the various services because they understood that something was terribly, terribly amiss here. And so, this shouldn`t be an outrageous conclusion.

MELBER: Well, you said earlier, I`m a lawyer. I`ll give it right back to you. You`re a judge which is a way bigger deal.

GERTNER: Former judge, retired judge.

MELBER: Yes. Way bigger deal than a lawyer. And hearing you lay it out clearly and also make the comparison to the evidence against drug dealers that you`ve been convicted that lose their liberty over as you put evidence that is not as strong as some of what`s been laid out. That was quite striking. Judge Gertner, Brittney Cooper, thanks to both of you. I hope you both come back.

GERTNER: Thank you.

COOPER: Thanks for having me.

MELBER: Appreciate you. And Happy Friday. Great. When I say we have to get a break, it`s because I have a lot more ahead including what I told John, we would get back to. What happens over in the Senate trial. Mitch McConnell admitting today, he will coordinate with the potential defendant here. We`re going to get into all of that.

Also new reporting on the missing Ukraine aid story, we brought you here on THE BEAT. The White House admitting in a new footnote, they`re still missing some of the money. And my live interview with a special guest who`s actually been advising Speaker Pelosi and the top Democrats on impeachment. I can`t wait to hear those answers. And then, fall back Friday tonight with Harvey Fierstein and Peggy Noonan. You know we need it. I`m Ari Melber, you`re watching the special edition of THE BEAT on MSNBC.

(COMMERCIAL BREAK)

MELBER: What happens if your jury is on the same team as your defense attorney or the Republican overseeing any Trump trial in the Senate, Mitch McConnell now admits he plans to let the White House call all the shots.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (D-KY): Everything I do during this; I`m coordinating with White House counsel. There will be no difference between the President`s position and our position as to how to handle this. Well exactly how we go forward, I`m going to coordinate with the President`s lawyers, so there won`t be any difference between us on how to do this.

(END VIDEO CLIP)

MELBER: There`s a problem there, Senator McConnell is essentially the jury foreman in this Senate trial, but now he`s saying he will let the - basically the defendant calls the shots discarding with even a pretense of taking this impartially. Now, you might think OK, but isn`t this all politics. Well, let`s look at recent precedent.

During the Clinton impeachment, Senate Democrats stressed that they took the process seriously and impartially. They struck bipartisan deals on those rules for the trial even getting unanimous agreement from all hundred senators.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The Senate must stay in control of this process.

UNIDENTIFIED MALE: Senator Daschle and I are not dictators. We are leaders that are giving some latitude by our conferences and our caucuses, but we have to bring along 98 other senators.

(END VIDEO CLIP)

MELBER: So, we are already seeing a bit of a contrast to that recent history. Remember, a lot of the folks in Congress lived through that. Some of them were even in Congress then. So, they know what`s going on. McConnell`s public statements may be quite bluntly political, but they also put him on a path to perhaps violating the oath to be impartial that he will have to take.

In fact, here`s what it looks like when the Supreme Court Chief Justice administers that oath which McConnell himself swore during the Clinton trial.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Will all senators now stand and raise your right hand. You will do impartial justice according to the Constitution and laws, so help you God.

(END VIDEO CLIP)

MELBER: McConnell saying he will effectively maybe break that oath of impartial justice may also explain why Donald Trump has been defying subpoenas in the House process counting on this personal relationship with the people running the Senate trial to maybe bail him out regardless of what he did which may be how one can be so guilty and so confident.

As another self-proclaimed Teflon Don once put it. Rick Ross, he was explaining why he felt calm when strolling into a trial that he knew he was guilty for, walking in the courtroom, sipping on a beverage. I know the judge. So, I got a lot of leverage.

Well, Trump knows McConnell and we`re seeing his leverage over this process already play out in public. Democrats though objecting to such a blatantly gangster mentality emanating from the Oval Office.

Joining me now is someone who also took that very oath, we just showed. Former Senator Byron Dorgan. Good to see you, sir.

SEN. BYRON DORGAN (D-ND)): Hi, Ari. How are you?

MELBER: I`m great. Is this a violation of the senator`s duty.

DORGAN: Oh, it`s way out of bounds. I mean this is the - the oath says to do justice according to the Constitution. There`s no justice in seeing Senator McConnell say, we`re going to link up here with the attorneys on behalf of the defendant and we`re going to coordinate everything with those attorneys. And when it`s all said and done, we`re going to acquit the defendant.

And by the way, Ari, let me make one other point that`s so important. This defendant has already confessed. So, we have a confession from this defendant. We know what he asked the President of the Ukraine. And by the way, his Chief of Staff has said yes, there was a quid pro quo. He confessed as well and he said, get over it.

So, this is the most bizarre circumstance where we will have a trial and the majority leader, the potential jury foreman in a trial says, I`m going to coordinate everything with the defendant. I mean it`s just unbelievable. It`s way out of bounds.

MELBER: How does that contrast with the trial that we mentioned you were involved in the Senate. How did the Senate leaders deal with it then? We showed some of it on the rules. But does this come close to anything they did, or do you view this as a new low?

DORGAN: It was very different. You know in fact the first day just before the trial began, we all went to the old Senate office chamber, the Old Senate Chamber and 100 senators sat in that chamber and that was not an official gathering. It was these one 100 senators talking. And as a result of that, we developed a template for how to go to this trial and how to conduct the trial. And we had two leaders, Senator Daschle and Senator Lott respected each other and they wanted to make sure this was done the right way and done in a way that was bipartisan. And that`s exactly the way it happened. Now, obviously the Senate is a very different place.

MELBER: Sure. But just to hit the point, then Democratic leader Senator Daschle did he say publicly or did he privately intimate to your caucus that he was coordinating everything with the White House.

DORGAN: No, not at all. I mean nothing like this. I mean the template of the trial was difficult to try to figure out how we do this, but we did it. But it is a vastly different circumstance in the United States Senate today, it`s very tribal. You know I think when you look at the Senate and you see now if this comes to the Senate their vote hasn`t occurred in the House yet.

MELBER: Right.

DORGAN: But it comes as Senate, there`s a trial and look, I know there are fair number of Republicans in the Senate, they know this is wrong. They know that inviting a foreign leader to interfere in America`s election by asking that leader to investigate the President`s political rival, they know that`s just wrong. But you don`t hear a beep out of them.

And my guess is McConnell thinks, he`s going to get all of them to vote to acquit, at least that`s what he expects. And I think what he said in the last two days with respect to coordinating a defense in an impeachment trial is just disgusting. I mean its way out of bounds.

MELBER: It was. It`s fascinating in getting your view, having actually been there, done it. Walk the walk. We hear so many cherry-picked presidents. Senator Dorgan, thank you. Always good talk with you. I mentioned your latest book by the way, The Girl in the Photograph by Senator Byron L. Dorgan.

We`re going to turn ahead to a constitutional law expert who has testified before Congress on many key issues and actually counseled lawmakers on impeachment when we`re back in 30 seconds.

(COMMERCIAL BREAK)

MELBER: We`re back with a very special guest renowned Harvard Constitutional Law Scholar Laurence Tribe, who has publicly been reported, been advising Speaker Pelosi and the Democrats on impeachment this past weekend, fielding questions even before their mock hearing. He`s also we should note testified before Congress as an expert over two dozen times. And while we`re at it, you should know his former students include Chairman Schiff, Chief Justice Roberts, Justice Kagan and President Obama himself.

His new book is To End a Presidency, The Power of Impeachment. Professor, we don`t mean to make you blush, but we`re thrilled to have you on a momentous historic night and to make sure viewers understand where you fit into all this. Thanks for being here.

  LAURENCE TRIBE, HARVARD UNIVERSITY CONSTITUTIONAL LAW PROFESSOR: Thank you, Ari.

MELBER: What does it mean that the House has taken this move today?

TRIBE: Well, it`s obviously a somber day. You wouldn`t know it from the antics of some of the Republicans in the hearing, but this is only the third time a President has been impeached if he is indeed impeached, next Wednesday. It will be the first time, the President has been impeached in his first term and it will be the first time that any president who has been impeached is on trial before a Senate of his own party and what it looks like is that the majority leader is going to conduct this trial as though he`s a member of the defense team.

It`s an ancient principle, centuries old actually over a millennium old that you can`t be a judge on your own case and effectively to allow Donald Trump to call the shots violates that principle and also may backfire.

MELBER: Let me press you on that, you say it may backfire. You`re talking about what we`ve been reporting, Senator McConnell saying this blatantly out in the open. Do you view that in the actual substantive sense as a violation of Senator McConnell`s constitutional duty here? Whatever sympathies he may have with the President.

TRIBE: It`s no doubt. And I agree with Senator Dorgan, it`s disgusting, it`s a violation of his oath. No court will stop him. The Chief Justice won`t stop him. But the reason it may backfire is that an exoneration if that`s what emerges by a Senate vote is essentially rigged and fixed so that it`s coordinated in this way with the defense really doesn`t clear the name of the accused, so that the President will go down in history as having been essentially found guilty by the House in a proceeding where he had a chance to defend himself, but didn`t take advantage of it.

And then in a kind of rubber stamp sort of toss off, not really given a meaningful trial so that he will have been adjudicated fundamentally by the House of Representatives to have abused his office, abused his oath and endangered the national security and then blockaded. And the inquiry as though he were a dictator.

MELBER: It`s fascinating because--

TRIBE: That`s not a very good record.

MELBER: You`re speaking with the expertise you have and as someone who`s advised the Congress, but you`re making a point that I haven`t heard a ton today which is that if what Trump and McConnell are after is some sort of public claim to an acquittal. You`re saying they have undermined that by McConnell admitting the whole thing is rigged and they`ve tainted whatever public acquittal they seek.

TRIBE: I think that`s exactly right. So that in the end, the real verdict that will have been reached is a verdict in the House of Representatives. The Senate will just be, I suppose you could call it a Potemkin trial or the Potemkin Village in Crimea that Moscow mixes obviously quite happy to set up.

It`s not going to be a real trial unless there are witnesses, unless the evidence is displayed and subject to cross-examination. So, what we`re really going to have is an incomplete process, but it will lay a precedent for the future which I think is important. The precedent will be that a President who thinks he is above the law, who is willing to invite foreign intervention in our campaigns, who is willing to shake down an ally to benefit an adversary that is his benefactor namely Russia is not going to simply be cleared by the Congress of the United States.

He`s going to go down in history as a lawless President and future presidents may have to think twice because the stars may not always be aligned in such a way as to enable the President to get away with it.

MELBER: Yes.

TRIBE: And that`s really what`s important. The issue is not Donald Trump. The issue for any president is, do we welcome a president getting a foreign power to intervene in our elections so that he takes away from us the right to vote. The center piece of our freedom and I hope that is not going to be all right.

MELBER: Yes. And that`s where the abuse of power article that you advised them on does echo aspects of the Nixon one which is what do you deny when the president can get away with undermining these things. Professor Tribe, I really appreciate you making time for us tonight, sir.

TRIBE: Thank you.

MELBER: Thank you, sir. Coming up.

TRIBE: Good to be here.

MELBER: We have a serious fact check on this big story, Ukraine still hasn`t gotten the money, all of it that Trump froze.

(COMMERCIAL BREAK)

MELBER: Now we turn to a major update on a story we`ve been covering right here on THE BEAT and it undercuts a GOP defense to Trump`s alleged abuse of power.

You may recall when we reported on how Donald Trump hadn`t taken actions that still resulted in the fact that $35 million of the Ukraine money had not been delivered. 35 million that`s 14 percent of the total.

Now Trump`s own White House is confirming $20 million still hasn`t been delivered. Admission in the footnote of a new memo from the OMB. Ukraine still hasn`t gotten the aid. Now hours after the White House admitted that, Republican lawmakers are still insisting Trump did nothing wrong, falsely claiming the aid was released.

(BEGIN VIDEO CLIP)

REP. JIM JORDAN (R-OH): They got the money on September 11th. The aide also got released.

UNIDENTIFIED MALE: Once two new anti-corruption measures were released within two days. So, was the funding. That`s what changed.

REP. KELLY ARMSTRONG (R-ND): The aid was released and there was no investigation.

REP. DOUG COLLINS (R-GA): The aid was relieved. There was nothing done.

(END VIDEO CLIP)

MELBER: The aid was released when they got caught. But the aid didn`t all get to Ukraine making those statements largely misleading. Now this isn`t Adam Schiff`s report now that we`re citing for this. It`s Donald Trump`s own White House budget office, the memo arguing that also they took appropriate action to ensure the Ukraine money was not dispensed in a way that would conflict with the President`s foreign policy.

A different view of course and the articles of impeachment that say the evidence shows the aid was withheld for political benefit, not for legitimate foreign policy concerns. So, while Republicans argued Trump did nothing wrong. You have people in Ukraine who still haven`t gotten the money, which seems like a pretty relevant point.

I bring back John Flannery, a prosecutor who has been counsel to three congressional probes and has been tracking this issue along with us. For really eagle-eyed beat viewers who can remember everything, remember you and I spoke about this last week, the number as mentioned 35. We caught them in the footnote, it`s down to 20. Is it important to the case that Ukraine is still missing money?

FLANNERY: Yes, it is important, because going back to Lieutenant Colonel Vindman, he said there was nothing that had changed that would justify any of these delays and reporters in the field are writing about that now. And it`s very interesting if you look at this, some of the dates, there are a whole bunch of dates in which they "pause the original 35 million and the 391 million and the pauses, one of the first ones that I find interesting is we were told that it was July 18th when Trump first decided to delay the funding. And in this report, it says on July the 25th was the first time they put a delay in. And you can find it on the front page under the title the background, it says on July 25th, the OMB gave notice to this to the DOD to hold those funds.

  And that is the same day that Trump had the conversation with Zelensky. That`s the same day that we`re told there was an inquiry by the Ukraine embassy about where it was - where is our money. And those things all go together to rebut the President`s intention and the Republicans argument since that where`s the fault. They got the money. Well, they haven`t gotten all the money and they still haven`t gotten their meeting in the White House.

MELBER: Yes, and you lay it out there, it`s really important as evidence as people say OK. Are we going to really follow this case all the way to the Senate if it goes there? John, thanks for joining us on two topics. I appreciate it.

FLANNERY: Thank you.

MELBER: Next up, the Supreme Court just made a decision about Donald Trump`s tax returns when we come back.

(COMMERCIAL BREAK)

MELBER: Other news the Supreme Court pick today of all days to rule on something very important, a case about Donald Trump`s tax returns. Lower courts as you may recall had ordered Trump`s banks and accountants to provide these records to those who requested them. Trump appealed and now the Supreme Court says it will hear this case, this term which means it could decide the case by June. The very latest on impeachment meanwhile, I want you to know we have a special hour on it. New this Sunday night 9 PM Eastern.

Up next, Donald Trump Junior is under fire and a whole lot more when we bring on two very special guests.

(COMMERCIAL BREAK)

MELBER: It is time to fall back and we have a special day here on THE BEAT. Two legends, the stage icon and a journalistic juggernaut actor and play writer wright Harvey Fierstein, a four-time Tony Award winner including for his work as the larger than life lead character in Hairspray. He`s written everything from teleplays to an award-winning children`s book, The Sissy Duckling and started box office hits of course like Mrs. Doubtfire, the American theater hall of famers off Broadway show Bella Bella is open now, written and performed by Harvey himself.

And we are joined by Pulitzer Prize winner Peggy Noonan, former primary speechwriter and special assistant to President Reagan. She`s now a weekly columnist for The Wall Street Journal and an NBC News contributor, author of five New York Times best sellers including what I saw at the revolution of political life in the Reagan era.

So, great to have you here together.

PEGGY NOONAN, SPECIAL ASSISTANT TO PRESIDENT REAGAN: Hi, Ari.

MELBER: Well, here we are on fallback Peggy, what`s on your fallback list.

NOONAN: My fallback list I think in fairness two things. One is the president`s son Donald Trump Junior has a new book out in which he said to my irritation and perhaps that of everybody, he sort of compared his and his family`s sacrifice and what they had to do to win and make operable the presidency to those who had sacrificed their lives, who were buried at the Arlington National Cemetery.

And you know, I think we all get carried away, exaggerations happen. But I think sometimes in America, the higher up and more powerful you go very quickly the more you lose a little perspective. A little empathy for others.

MELBER: I think that`s fair. And it sounds like a major reach.

NOONAN: And I also think - let me just say the real virtue of courage is shutting up about it. People who are brave and sacrifice, they never sit and tell you, how fabulous they are.

MELBER: Isn`t that true. Yes. I mean you think about how much noise there is and how veterans are so often so careful and quiet about what they`ve seen and done and what they`ve given up. What else is on your list? I saw that you`re not a fan of podcasts.

HARVEY FIERSTEIN, PLAY WRITER: Just leaping on Ms. Noonan said here. I think that social media, podcasts, selfies, all that has made everyone`s opinion the same. And I`m sorry if everyone`s opinion is not.

NOONAN: Yes.

FIERSTEIN: Actually, you know writers know this. Right. People who write. We spend most of our time. People think of us as writers. We spend most of our time listening, reading, looking for stuff, trying to figure out what`s the truth. then we digest it and we put it into a form that we understand.

So many people just put their opinions out there as if they mean something. And then if they get a lot of likes that`s a good opinion. If they don`t get a lot of likes, I don`t believe that anymore. Let`s call our President.

MELBER: What you`re talking about--

NOONAN: It makes everything bland and in the middle when it shouldn`t necessarily be in the middle, sometimes truth is here, sometimes it`s here.

MELBER: And you`re talking about the tension that exists in a democracy between everyone having equal rights and an equal standing as citizens, which we want. But not every idea getting equal merit in the marketplace. I mean a doctor`s idea about how we might take care of ourselves is going to carry more weight than a random person reading off the Internet or a podcast.

NOONAN: And you know what else I think the whole Internet of Everything has done, it has, we know this, but we keep learning it in a new way every day. It blurs the line between the private, things that are private to you and the public, the things that you show in public which is part of how everybody gets in trouble on the Internet. You say things to your friends on Facebook and Twitter, but it`s not to your friends. It`s dark, it`s something funny, but the whole world is seeing it and does not understand your humor. To face you have the nuance.

MELBER: So, I`m a fan of both of you as I think you know. I`ve seen you on Broadway as Tavy (ph). People are loving Hairspray. This Broadway have anything in common with the news.

FIERSTEIN: Well, theater is the last thing you thought of. I mean theater is so alive and all that, but I wrote this play Bella Bella after I saw what happened to Hillary in her election. I said lot of this sound so familiar, where did I hear this before and then I look back at Bella`s run for Senate and I said they pulled the same dirty tricks on her back then. The same lines the same - and then I started examining and I said 40 years nothing has changed.

MELBER: Wow.

FIERSTEIN: So, I do this play which has lines from Bella like talking about Harry Truman, says, can you imagine a man so thin skinned that he demanded a loyalty oath from everyone who worked for him. Everybody gets very quiet. Can you imagine. And the whole place goes crazy. I was listening into three kids on excuse me NPR. As I drove that--

MELBER: You`re excused.

FIERSTEIN: Because I didn`t listen to MSNBC, you know I bet I could switch over to NPR.

MELBER: Harvey, you can listen to whatever the hell you want.

FIERSTEIN: Three high school students and they were saying that they go to Facebook. They do. They do Snapchat.

NOONAN: Instagram.

FIERSTEIN: And Instagram only. And their whole values were so different than what I would have guessed. High school student is and I said to myself you know you`ve been hanging out with old people too long, it`s time to go write something about high school kids and get that energy, because we do have to turn the world over to them. It`s time, it`s time.

I mean it`s you know how many 80-year-old people can we run for President. We have to say at some point--

MELBER: You think the candidates, I mean in both parties the candidates are older.

FIERSTEIN: Are very old. I don`t think that the future belongs to old people. I think the world belongs to young people. You know that almost already on a musical and life.

MELBER: What is the difference between a musical and life.

FIERSTEIN: Well, it depends if its written by Andrew Lloyd Webber. Musicals, anything - well, life anything--

(CROSSTALK)

NOONAN: Musicals are better written.

FIERSTEIN: Yes.

(CROSSTALK)

FIERSTEIN: We`ll do next thing off to Kate walk into town.

MELBER: I love a little Taj Mahal. I think--

FIERSTEIN: (INAUDIBLE) my face (INAUDIBLE), throw your big leg over me, not feel this good it gets. OK. Light me up.

MELBER: What I love about musicals that are different than life is.

FIERSTEIN: Yes.

MELBER: There`s always another one tomorrow. Our time here is more limited in life. Thank you for being on this special fallback.

FIERSTEIN: All right. I had fun. Did you have fun?

NOONAN: I did.

FIERSTEIN: We`ll come back tomorrow.

NOONAN: See you tomorrow.

MELBER: We did have fun and we needed that. Let me also show you one more thing you might want to see, the Rockefeller Center Christmas tree live right here in New York City. We wish you a happy holiday to you and yours. I`ll be back here 6 PM Eastern Monday night. But don`t go anywhere. I`m going to be on The Last Word tonight filling in for Lawrence at 10.

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