KATY TUR, MSNBC HOST: THE BEAT WITH ARI MELBER starts right now.
ARI MELBER, MSNBC HOST: Hi, Katy.
That was a great tribute.
And how was your holiday and your new year?
TUR: My new year was lovely. I spent it at the Phish show screaming my voice out of my head.
MELBER: Is that why you lost your voice? Not because you...
TUR: I`m sick. I`m sick. And then the combo...
MELBER: Well, are you sick? Are you sick, or did you have a great Phish concert experience? Which is it?
TUR: I had both. I`m sick, but I still went to the concert. I sang has loud as I possibly could. And I totally lost my voice. And I got a little bit of it back today, enough to be here to talk to you, which was good.
MELBER: It`s great.
TUR: I was bouncing around the room.
That`s a lyric, so just you know.
MELBER: Oh, I knew. I`m pointing at you. I don`t know if you can see.
TUR: I can`t see you. I can`t see you. It`s just my face on the screen.
MELBER: I thought maybe you have better technology than I do over here.
TUR: I do not. I just have to look at myself. I`m just going to fix my hair.
MELBER: So, yes, I was pointing at you, because, look, bouncing around the room. Wash your face and drive me to...
TUR: Wash Uffizi, drive me to Firenze.
MELBER: Where they have good pasta.
TUR (singing): Wash Uffizi, drive me to Firenze.
MELBER: Wow, we got singing out of you on a day when you claim to be sick. That`s a real professional.
TUR: I could do more. I could do the whole hour, if you like.
MELBER: We would like.
In fact, I will just -- since we`re just going to -- I`m just going to finish this up, for those who are waiting for the newscast to start.
But we`re going to put an invite out. If we can get any member of Phish for a "Fallback Friday" with Katy Tur, well, let`s make it happen.
TUR: Oh, I will be there.
MELBER: And feel better. Rest your voice.
TUR: Thank you.
MELBER: I will see you soon.
TUR: Happy new year, Ari.
MELBER: Happy new year.
Now I want to begin, of course, by wishing you at home a very happy new year.
This is our first show of 2020. And I think you know, because you watch the news, right, how big a year this is. The Congress now set to reconvene facing the open question of how to put a president on trial. Most years don`t start like that.
Tonight, we actually have the latest on this showdown between Speaker Pelosi and Leader McConnell on that very issue with some, some Senate Republican criticism emerging.
Tomorrow also marks -- think about it -- one month out from the Iowa caucus and the start of the 2020 presidential election.
Later tonight, we have actually a little bit of news on that front that may interest you. And we`re also going to dig into the latest from Mr. Giuliani, a potential witness, by his own admission, in the looming Trump trial.
Now, tonight, it is the Senate`s very approach to that trial that actually appears to be on trial. And that is thanks to Mitch McConnell`s very unusual announcement that he plans to run a biased, not unbiased, double negative, no, a biased process whenever the House does turn over the impeachment articles against the president.
So, now we have a second Republican senator publicly breaking with the idea that the Senate should be on a given side before hearing all the evidence.
(BEGIN AUDIO CLIP)
SEN. SUSAN COLLINS (R-ME): It is the inappropriate, in my judgment, for senators on either side of the aisle to prejudge the evidence.
(END AUDIO CLIP)
MELBER: Now, that is self-declared moderate Susan Collins.
Now, before that one line gets too much focus, notice that she then goes on to argue that her position, in her mind, is a break with both McConnell and prominent Democrats in the Senate.
(BEGIN AUDIO CLIP)
COLLINS: I have heard Democrats like Elizabeth Warren saying that the president should be impeached, found guilty and removed from office. I have heard the Senate majority leader saying that he`s taking his cues from the White House.
(END AUDIO CLIP)
MELBER: Collins leaving plenty of room for herself there.
But, as a political matter, she and Alaska Republican Senator Lisa Murkowski are pushing back a little bit more than the rest of the GOP Caucus.
McConnell -- Murkowski, I should say, saying McConnell`s approach of coordinating with Trump was disturbing, in her view.
And when it comes to doing anything about this, Collins isn`t endorsing any specific action yet, like, say requiring witnesses. Instead, she says she`s just generally open.
(BEGIN AUDIO CLIP)
COLLINS: I am open to witnesses. I think it`s premature to decide who should be called, until we see the evidence that is presented and get the answers to the questions that we senators can submit through the chief justice to both sides.
(END AUDIO CLIP)
MELBER: Now, that`s fair enough. There`s no constitutional requirement for whether a Senate trial hears any witnesses.
But it`s also worth noting that, when Senator Collins was evaluating a trial for a Democratic president after a probe which, factually, heard many, many more witnesses than the Ukraine investigation at this point, she said she knew enough then that it was key to have, yes, witnesses at the trial to resolve the facts.
(BEGIN VIDEO CLIP, 1999)
BRIAN WILLIAMS, NBC ANCHOR: Senator Collins, I want to get you on the record on the witness issue as well.
COLLINS: From the outset, I have been inclined to think that we do need to hear from some limited witnesses on some limited issues in order to resolve factual disputes, and equally important to give the president a fair opportunity to have his lawyers cross-examine these witnesses.
(END VIDEO CLIP)
MELBER: Meanwhile, there are new details emerging about how the Ukraine plot worked.
Pentagon officials were raising red flags about it for months, according to newly revealed unredacted e-mails obtained by Just Security, a Web site affiliated with NYU Law.
Now, NBC has not verified these e-mails. And when we asked a reporter review them, they declined at this point. But according to Just Security, the e-mails show Pentagon officials never got any rationale for Trump freezing the Ukraine money. It was just -- quote -- "clear direction" from the president himself.
Now, these are the very e-mails the White House hid from congressional investigators, which, of course, became part of the evidence for the second article of impeachment, the obstruction article.
Now, we have a great panel of reporters to get into this tonight, but we begin right with former U.S. Senator Byron Dorgan, who served as a Senate juror in the Clinton impeachment trial.
Happy new year and good evening, sir.
BYRON DORGAN (D), FORMER U.S. SENATOR: Thank you, Ari.
MELBER: Great to have you here.
What do you make of where this is headed, evidence trickling out through the legal process, through the press reporting, while the White House obviously is sticking by the strategy that got Trump impeached, or at least the second article of impeachment, the obstruction, and your former colleagues pushing back ever so gently, a whispered pushback, if you will, to Leader McConnell?
You know, a cover-up is really hard to maintain in our government. It just -- somebody`s going to pry things out of it. And in the last couple of days, these e-mails that have been pried out of the Defense Department, OMB, the White House, they show exactly what has happened, what this plot has been.
And we don`t know everything, but we know two things. We know the president asked the president the Ukraine for a favor, to investigate his political rival here at home, the president`s rival.
And, also, we know from these e-mails that the direction came right from the president to withhold the funding. So we know that.
I think all of that makes it even more important that there be witnesses now, because we haven`t heard from the principals. The witnesses must come before a Senate impeachment trial. This president covered up everything.
I mean, he wouldn`t allow any data, any e-mails. He wouldn`t allow people to come and testify. Some very brave people did, but, by and large, the principals did not.
So I think there needs to be witnesses at this impeachment trial.
MELBER: Do you think Speaker Pelosi`s effort to slow this down and draw attention to whether any notions of fairness will be applied, in her view, is working? Or is it too early to tell?
DORGAN: It`s a little early to tell.
But, look, I don`t blame her for deciding -- given what Senator McConnell has said, I`m not going to be impartial, the reverse of that is the suggest that I`m going to be partial, right?
So I don`t blame Nancy Pelosi for saying, let`s hold up just a bit and find out exactly what`s going to happen on the Senate side. But you go back to the impeachment trial that I was involved in with Bill Clinton. As you know, Ken Starr had a four-year investigation.
A 9-0 Supreme Court ruling in that case on Clinton vs. Jones required the president to go before a grand jury, and they required information to be made available. That`s a vastly different thing than what happens here in this impeachment trial, where President Trump has really closed the door on everything, witnesses and information flowing.
So that`s why I think, in this trial especially, there really does need to be witnesses that come forward.
MELBER: Yes. And I see the arguments for that particularly, as we`re going to get to later in the show, even have some of Trump`s people saying they want to come out and be witnesses, which would suggest that, yes, witnesses can provide information, kind of a pretty basic thing you don`t always have to say out loud.
MELBER: Senator, I want you to stay with me and also turn to an update before we bring in the other guests I mentioned, which is Speaker Pelosi, of course, overseeing the impeachment.
She`s also digging into this showdown with McConnell. But that`s not all. She`s fighting Trump on other and related fronts, because you know about this? The White House didn`t only, of course, defy subpoenas in the Ukraine probe.
It also, memorably, tried to silence Don McGahn, the former counsel who gave Mueller so many details about Trump`s alleged obstruction. Pelosi is now sending her top lawyers to court in that case, and they`re warning the House could potentially impeach President Trump again, and citing that possibility as part of the stakes for why they should win the case forcing McGahn`s testimony.
Reading from this motion -- quote -- "If McGahn`s testimony produces new evidence showing more impeachable offenses that are not covered by the articles approved by the House," Pelosi lawyer writes that they could even consider whether to recommend new articles of impeachment.
Pelosi`s hardball tactic here is to try to basically push Donald Trump to envision himself as potentially the only president in history who would ever be impeached twice.
Now, critics of the Democrats might see some of that as overkill at this point. Critics of Donald Trump may be energized to see that as the very least he deserves.
I want to bring in our -- the rest of our panel, Wall Street Journal`s Shelby Holliday and BuzzFeed`s Hayes Brown.
Hayes, what do you think about that? People come back to work, new year.
HAYES BROWN, BUZZFEED: Yes.
MELBER: And they might do it twice.
BROWN: They might do it twice, because here`s the thing.
There`s nothing -- there`s no rule out there saying that there`s a double jeopardy clause saying a president can only be impeached once. That`s not in the Constitution. That`s not in the rules of impeachment written down anywhere.
And if the House does find new crimes, they have every right to put forward new articles of impeachment. Also, I can...
MELBER: Let me pause you on it.
Is this one of those things where, if it were any other president, it would just look like total overkill? But when you have a president who`s accused of demanding a foreign country investigate his rivals to try to cheat in the election, and he comes out and says, yes, I did that, I did it with Ukraine, maybe China should do it, too, we`re actually in a place where this looks less extreme than it otherwise would?
BROWN: I think so, especially considering too that there were a lot of things that other members of the House wanted to impeach Trump for, things like his -- the Emoluments Clause and then him making profit from his hotels while he`s still in office, things of that nature.
And I have to note that it is possible for the House to amend articles of impeachment once they have been written. This happened before in terms of impeachment of judges. So there`s no reason that couldn`t apply to the president. They could say, well, facts have changed. We want to take these back.
They`re sent back to the Senate. And the president and the House managers are given time to revise their submissions to the court that is the Senate. So it`s possible. It could happen.
Is it likely? I don`t know. I`m not in the prediction-making game, thank God, but maybe.
SHELBY HOLLIDAY, "THE WALL STREET JOURNAL": Well, Nancy Pelosi is quite good at bluffing, so it`s hard to tell if this is serious, or -- she has in the past done things that have sort of been meant to be a shot across the bow to Donald Trump.
This could be that, or it could be -- it could be serious. But it also is a risk, because it could play into President Trump`s hands, which is that the comment that the Democrats have wanted to impeach him from day one, that this is all a sham, that all they have ever wanted is to undo an election and get him out of office.
So when you start venturing away from the fact that impeachment is narrow, it`s all about Ukraine, we have a closed case here, and you start opening it up to other events, that could actually help President Trump, because it does show the Democrats want him out for a variety of reasons, whether that`s legitimate or not.
MELBER: Senator Dorgan, what do you think?
And, on the substance, of course, this comes out of another area, where, if you don`t step up to this level of defiance, a lot of the congressional Democrats have argued -- and you have worked with these folks -- they say, well, then you`re going to effectively reward it.
The nation has still never heard from Don McGahn.
DORGAN: That`s right.
Well, in this case, first things first. I mean, we have got a trial that may happen now. So I think we need to go to that. You have two articles of impeachment.
The question of Don McGahn is very important. The question is, did the president request Don McGahn to lie under oath about an issue that is very important, firing the head of the FBI? Did the president ask him to lie under oath? If he did, that`s a pretty serious charge.
So I don`t think the Congress has...
MELBER: And, Senator, did he -- according to the Mueller report, did the president order Don McGahn to falsify records?
DORGAN: That`s correct.
MELBER: I mean, in Watergate -- I guess that was a more innocent time, but, in Watergate, Nixon`s own lawyers, when you read the history, were so aghast at a request to potentially create a false record for his then so- called Dictabelt, the records of the phone conversations, they considered resigning just over that.
What`s going to happen is, the president and his lawyers are going to appeal and appeal and appeal and try to run out the clock on this. But the Congress has a responsibility to deal with the McGahn issue. This is a very serious issue.
You can`t just ignore that and say, well, he`s done so much in so many areas that give us heartburn. We`re just going to -- we`re going to go to what we`re dealing with now. You have got to work on a number of things at the same time.
But I don`t like the speaker`s counsel talking about a second impeachment. Let`s do first things first. And let`s finish the investigation on McGahn.
DORGAN: What`s that?
MELBER: As a fellow Democrat of Pelosi, you happen to disagree with that strategy?
DORGAN: Well, I would just say I don`t -- he didn`t need to talk about a second impeachment. All they need to talk about is getting McGahn under oath in front of the Congress to tell us exactly what happened.
Did the president ask him to lie under oath?
MELBER: Yes. And that`s interesting coming from you.
Shelby, I want to turn your attention to where Republicans are going on this, other than a couple of the moderates we mentioned, because Missouri Senator Josh Hawley seems to be much more aware than the mainstream GOP Caucus is, writing here in a new -- this is new -- quote -- "Dems said impeachment was `URGENT` -- all caps -- "Now they don`t want to have a trial, because they have no evidence. In the real world, if the prosecution doesn`t proceed with a case, it gets dismissed. On Monday, I will introduce a measure to dismiss this bogus impeachment for lack of prosecution."
Your thoughts on what that means?
And this would be, of course, the other side of the Pelosi strategy. If Americans are following this, they go home, talk about it over the holidays, everyone`s family together, come back in the new year.
Is it urgent, or is it a game of chicken?
This is stepping up criticism that we have heard over the past few weeks, because the minute that Speaker Pelosi said, I may not send this to the Senate until we know there will be a fair trial, we heard immediately from Republicans this exact talking point. You said this was urgent. You said you need him out of office immediately. He`s a threat to the 2020 election. We have voting in the Democratic caucuses beginning very soon, and now you are just going to delay.
So I think that`s a really interesting political move. But what it will all come down to are the votes that Senator Collins was talking about, those 51 needed procedural votes to decide the rules, to decide whether there will there will be witnesses.
HOLLIDAY: That will be the most important thing in all of this, because, while this is an interesting political tactic, I`m not sure that it will actually make much of a dent.
MELBER: Well, and that`s why this is different than a lot of other Washington debates.
MELBER: This isn`t some budget vote that basically will go away. There are senators who will be held to account more for this than anything else.
And depending on what state you`re in, if you`re a Republican, it`s one thing to say, we heard all the evidence, and we stand with the president. It`s another thing if they want to go down this road and say, dismiss it before hearing anything. How do you defend that?
BROWN: I`m not sure how he does.
I think that this might be another bluff. This might be him knowing the fact that he`s not going to get 51 to dismiss. That`s been talked about in Republican Caucus basically since impeachment began to be talked about in September. It was clear that you would not -- you needed some sort of trial to take place in order for the president to feel exonerated, to feel acquitted, in order to go back and argue to your constituents that we did the best, fair job that we could.
HOLLIDAY: And the Constitution requires it.
BROWN: And the Constitution requires it to take up a trial. You have to have the trial. McConnell himself has said there`s no way to get around this.
So we might see that the motion that he makes is mooted. Apparently, according to a follow-up tweet of his, he`s going to try to amend the rules of the Senate as far as it goes, as far as impeachment goes, to try and get around this.
I don`t think it`s going to pass, but it`s a good tactic.
MELBER: You need two-thirds for that.
But, Shelby, your insight raises an additional question, which is, does the Constitution even apply nowadays?
HOLLIDAY: It should apply. I think a lot of senators, actually -- that`s what people point to when it comes to the Senate. It`s an institution. They respect the Constitution. Let`s hope that continues.
MELBER: Senator, go ahead.
DORGAN: Let me just mention with respect to Senator McConnell, he does have power as the majority leader, but he loses that power if he loses three votes.
And so we already understand the tyranny of the majority under McConnell in the way he dealt with Merrick Garland, the Supreme Court nominee. So we will see what happens, whether there`s three or perhaps four, maybe even more senators, that will decide that this needs -- this trial needs to be done, this impeachment trial needs to be done in a fair way, in an impartial way, and then make a judgment about what happens to this president.
MELBER: Yes, really interesting discussion here kicking off the new year.
Senator Dorgan, Hayes Brown, and Shelby Holliday, thanks to each of you.
MELBER: Coming up, we have a breakdown of Rudy Giuliani`s new claims about why he could testify at this trial, and a very special guest on public opinion and the limits of the Watergate model.
It`s something we have reported on, on the show, and I`m really excited to have this professor on later tonight.
Also, some news from the Democratic presidential race, including I have a special announcement that you will only hear here tonight about the Andrew Yang campaign.
And, later, we take a turn to some other very important stories. "The New Yorker"`s Jelani Cobb is going to be here to discuss correcting a historic injustice, a conversation we think is very important. I hope you will stay tuned for that.
I`m Ari Melber. You`re watching THE BEAT beat on MSNBC.
MELBER: While congressional Republicans insist no witnesses are needed in Trump`s impeachment trial, apparently, one person didn`t get the memo, his lawyer.
(BEGIN VIDEO CLIP)
QUESTION: Would you testify in the trial?
RUDY GIULIANI, ATTORNEY FOR PRESIDENT DONALD TRUMP: I would testify. I would do demonstrations. I would give lectures. I`d give summations.
Or I would do what I do best. I would try the case.
(END VIDEO CLIP)
MELBER: The president`s personal attorney helped stonewall testimony to the House and focused more on conservative media interviews than these investigative hearings or depositions.
But now Giuliani claims he wants to testify, which requires going under oath, where false statements become perjury, a crime.
Now, Senate Democrats could seize on what you just heard as an opening to broaden this witness list. They could even emphasize that there`s some agreement with Trump`s own lawyer.
And maybe all of this drama or message problems is why former Congressman and Republican stalwart Trey Gowdy now says, officially, he will not join Donald Trump`s legal team. That`s news tonight, after much talk that he might.
In this same appearance by Giuliani, he also appears to confuse the potential assignment, arguing that the defense for Trump, who`s the defendant in this trial, well, that would somehow involve Giuliani prosecuting a case.
(BEGIN VIDEO CLIP)
GIULIANI: I don`t know if anybody would have the courage to give me the case.
But if you give me the case, I will prosecute it as a racketeering case, which I kind of invented anyway.
So, it`s been 30 years ago, but let`s see if I can still do it.
(END VIDEO CLIP)
MELBER: You are witnessing where bluster meets confusion. And that`s putting it nicely.
There`s no prosecution by the defense lawyer in an impeachment trial.
And that may be why Republicans who are involved in actually running the potential Senate trial don`t want Giuliani near it.
Look at this, a senior Republican Senate aide now saying -- quote -- "You wouldn`t trust Rudy to represent me in a parking dispute."
And this is Trump`s greatest weakness when it comes to Giuliani. He`s a defense lawyer who wrongly thinks he`s still a prosecutor and whose Ukraine investigation got his client impeached, and whose help is not what Trump`s allies consider helpful.
To quote another loud Trump ally who`s not always that helpful to the cause, Kanye West: "With friends like you, who needs friends?"
Sometimes, the best advice is no advice, especially when it`s your advice.
Well, is it time to ignore Giuliani`s advice for Trump? We are going to get counsel from two experts, one of whom served with Giuliani.
We`re back in 30 seconds.
MELBER: We turn now to former federal prosecutor John Flannery, who we should note is a former colleague of Rudy Giuliani`s in the Southern District of New York. You can see the two there during happier times.
MELBER: And Politico`s Natasha Bertrand, who`s covered many legal aspects of this complex series of investigations.
Good evening to both you. Happy New Year.
NATASHA BERTRAND, POLITICO: Happy New Year, Ari.
JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Good evening. Happy New Year.
MELBER: John, I know you understand the value of Kanye and the limits of Kanye.
Is it time to say the best advice is no advice, or should Giuliani come in as a witness or prosecutor, or whatever the heck he thinks he is?
FLANNERY: Well, when he`s giving his opinion, he has a tinkling glass there. And you have to wonder if this bloody Mary mix is affecting his lucidity.
But we have so many data points in which he misses the point. And instead of being a defense attorney, he reveals, like a prosecutor, what his client and he himself has done wrong, which has gotten him in a trick bag up in New York, where he is the subject of investigation.
And it sounds like an eager puppy prosecutor who really should be a defense counsel who would do anything to be involved in the big show. I can give a summation. I can give an illustration. And I could do what I really do best. I could try the case. I`m really good at cross-examination, although I haven`t done it in 30 years.
I mean, I think there Republicans are right that they don`t want them anywhere near the place.
MELBER: And it`s not every night that you say on this show the Republicans are right.
FLANNERY: No, it`s not.
And maybe not all of them are saying it. And probably Democrats will be gleeful at that, to have this guy sit in the well of the Senate, and to say anything for more than 10 minutes, because you saw.
Those were brief interviews. And over a few minutes outside the Mar-a-Lago get-together, he gave this interview with his tinkling glass and made the most series of inconsistent statements about his role.
MELBER: Well, I will do a point of order.
You mentioned the glass and the bloody Marys. And the former mayor told "New York Magazine" in his own words that he enjoys bloody Marys.
FLANNERY: Yes. Right.
MELBER: But he also strenuously objected to anyone, in his view, overinterpreting that beyond just normal life. So I do want to put that on record.
MELBER: Well, go ahead.
FLANNERY: Well, OK, let`s say all of his functions are working. Well, not really well.
He`s a long distance from the kind of guy who could cross-examine a congressman named Podell and make the guy break down during cross, so that they stop the trial and he pleaded guilty, and that was 1974, the day I was sworn in. That`s about the day he did it. And he`s not that guy anymore.
MELBER: Well, this is interesting. And then I`m going to bring in Natasha.
But, briefly, you think he doesn`t know -- doesn`t agree with you or doesn`t know that he`s not at the same level, in your view?
FLANNERY: I don`t think he knows what he`s doing. Yes, I really don`t, yes.
MELBER: Natasha, what`s your view on all this?
BERTRAND: Yes, so I think it`s probably a little bit of Rudy lacking self- awareness, which is a point that Olivia Nuzzi, who wrote that great "New York Magazine" profile of him made, that when her subjects tend to criticize the pieces that she writes, saying that they don`t feel like they were represented fairly, then she assumes from that they`re just completely lacking self-awareness, which Rudy Giuliani arguably is.
But I also think that there is a level of wanting to stay relevant here, that there`s a level of wanting to maintain his own defense, because he is reportedly under or at least being investigated by the Southern District of New York for his lobbying work in Ukraine and his business ties there.
BERTRAND: So I think it`s a little bit of self-preservation, but at the same time, he wants to stay within Trump world. And so he`s kind of dangling all of his options here.
Lindsey Graham has said, if you have the evidence, then put up or shut up. He`s invited him to testify about this before the Judiciary Committee.
BERTRAND: And Rudy Giuliani said again in this kind of rambling statement that he gave to reporters from Mar-a-Lago that he doesn`t have all the evidence yet, that he`s still waiting for it all to come together, and he will do it, present it in the proper forum once the time is right.
So what does that mean? We don`t really know exactly.
MELBER: Well, and Natasha raises the other point, which is for anyone watching saying, OK, Giuliani and the Giuliani circus, as it sometimes appears, this is bigger than that, because his paying clients linked to Ukraine were indicted.
He`s blasting, in the same magazine article we mentioned, as -- quote -- "idiots" the people who fill the job that he -- at the office he used to run.
And this goes to something else. And loyal viewers BEAT may remember we gathered many of the former U.S. attorneys for that Southern District recently. We invited, of course, Mr. Giuliani. He demurred, John. And you served in that office, as I mentioned.
MELBER: And I want to play something that a very straight arrow U.S. attorney for the Southern District, Benito Romano, who served in the period right next to Giuliani, what he said point blank when we asked about this investigation, and you will be able to hear some of the crowd`s response as well from this BEAT event.
Take a listen.
(BEGIN AUDIO CLIP)
BENITO ROMANO, FORMER U.S. ATTORNEY: As the person to replace really, I have to say he should be treated the same way anyone else would be treated.
(END AUDIO CLIP)
MELBER: John, your view? And is that how this investigation will be run in New York?
FLANNERY: Well, I hope so.
The test is whether Barr, who is a corrupt attorney general, will try to put him thumb on the scales of justice and compromise what has been the independence of the Southern District a long time.
Rudy was -- I think he was the U.S. attorney when an assistant was found dipping into the drugs during a case that he was involved in.
MELBER: I think that was Romano, actually. I know the guy you`re talking about.
FLANNERY: Was that Romano?
FLANNERY: And they prosecuted an assistant in the office.
MELBER: They prosecuted their own prosecutor because they were so clear about no special treatment.
And so the office has that reputation, without regard to party, relationship or anything. And that`s one of the reasons that guys like myself were attracted to go to that office.
And the question -- and it`s a serious one in this administration -- are they able to resist the power of Barr and Trump and others, who have compromised, in my opinion, Mueller and others who would be straight shooters and would fight for what`s right and just and lawful?
FLANNERY: And we`re in a lawless time now. And we keep talking about the president being not above the law.
Well, he is above the law. Nobody has chased him for what he`s done. The articles of impeachment were the best thing that`s happened last year. And the question is how we use that initiative this year to show that we are a nation of laws and that nobody is above them.
And that includes Trump.
MELBER: John Flannery with his own happy new year to everyone, America has become a lawless regime. Think about it, and make up your own mind.
FLANNERY: Well, it`s true. I believe it`s true.
MELBER: I know you do.
FLANNERY: I believe it`s true.
And you and I, we cross the street, we will get a parking -- we will get a ticket. But this guy can commit the highest crimes and misdemeanors, and nothing happens to him, the people around him. Barr`s not impeached. Pompeo does what he does.
I mean, what is the end of it? We can`t have a lawless nation. We cannot be both just and free if we`re lawless. It can`t happen.
MELBER: John Flannery, Natasha Bertrand, appreciate both of you.
I got to fit in a break.
When I come back, we have an issue that has haunted the fallout from the impeachment. And what does it mean to get the facts to all Americans in today`s world?
We have constitutional legal scholar Lawrence Lessig here.
And, later, talk about criminal justice and what it means to have equality under the law, Jelani Cobb is here later tonight for a very special discussion.
Please stay with us.
MELBER: Think about this tonight.
In Watergate, the impeachment process, by the end, revealed evidence that ultimately moved opinion across the ideological spectrum.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: The Senate tonight voted 77-0 to establish a select committee to investigate alleged political espionage in last year`s election campaign.
UNIDENTIFIED MALE: The country tonight is in the midst of what may be the most serious constitutional crisis in its history. The president has fired the man you just saw, the special Watergate prosecutor, Archibald Cox.
UNIDENTIFIED MALE: Washington has been inundated by another massive set of Watergate transcripts.
(END VIDEO CLIP)
MELBER: And let me show you what we mean.
Richard Nixon`s job approval numbers from Gallup, you see here, broken up between the parties, as well as independents, from the beginning of the presidency through reelection. And then you see where we stop, as Watergate became a full-blown crisis, the bombshells, the Saturday Night Massacre, the evidence, the tapes that exposed so much wrongdoing.
As those facts emerged, let me show you what happened. Support from Democrats dropped from a high of 50 percent, cratering, you see, all the way down in blue to just 13 percent, but among independents who saw the facts, they also cratered by even greater numbers, a whopping 50 percent.
And then -- and think about this as you look at the Senate Republicans today with Trump -- for Nixon, the job approval within his own party also dropped by a similar 41 percent, total cratering in response to the public facts.
In that Nixon era, what you see is Democrats, independents, Republicans, they all were reacting to similar facts.
Now, Harvard scholar Lawrence Lessig notes that, while 85 percent of Americans saw part of the Nixon impeachment hearings across the four channels, today, while there`s even more information theoretically available, it goes out into smaller niches, with fewer people seeing the same facts.
He refers to the theory of broadcast democracy in the old Watergate era, when there were fewer competing narratives and far more agreement on what the facts were, which may explain where we get to tonight, Donald Trump`s approval holding pretty steady among those same three groups you see, Democrats, independents, Republicans, even as so many facts have come into public view.
I want to bring in the very constitutional law expert whose work we just cited. He has an extensive article on this and many other articles and books, Harvard Law Professor Lawrence Lessig.
Thanks for being here.
LAWRENCE LESSIG, HARVARD LAW SCHOOL: Thanks for having me on.
MELBER: Walk us through what this means.
LESSIG: Well, it means we are facing a kind of crisis that the nation has not faced, maybe since the Civil War.
We are living with a national catastrophe in two separate bubbles of understanding. One group of people see the facts one way. Another group of people see the facts another way, because of the way the media infrastructure has evolved.
And the question we have to ask is, what can we do to counter that right now? Because this is not normal politics. This is a catastrophic event in the life of a republic, the impeachment of the president.
And, at a minimum, what the nation needs is a common understanding of the facts before something like this can actually be allowed to be brought to a closure. And that`s how we have to figure out what to construct.
MELBER: The president tweets about and responds to FOX News a lot. We hear a lot about FOX News.
But your article seems to go far more broad than just any one media entity, however powerful.
LESSIG: Yes, I think -- there are things about this that I don`t understand how the other side sees it the way they see it. And there are things about this, that the other side doesn`t understand how we see it the way we see it.
And that is a failure of educating us, understand -- helping us to understand the facts. All of us are living in these relative bubbles. And the question is, what can these networks do, what can your network do, what can FOX News do to try to help us at least come to a common place, not persuade us one way or the other?
I mean, the fact about human psychology is, we`re extremely resilient to the facts. We can hear what we want to hear, regardless of what you tell us. And the point is, we at least need to be in a place where, when this decision is finally made, when the president is finally tried, and when that decision by the sentence is finally resolved, both sides at least have a common understanding of what was at stake, because that`s not the way it is right now.
MELBER: How much does it matter if a leader of a political party and the head of state is deeply committed to lying as a project of survival?
LESSIG: I think it`s really extraordinarily significant.
I mean, think about Mitch McConnell, who will be asked to swear an oath, an oath on the floor of the Senate, where he promises to be -- quote -- "impartial." That`s what the Senate rules require.
But he has said explicitly, I`m not impartial. So he is swearing an oath which is false, a false oath, which, of course, is perjury, which he is not going to be prosecuted for it. But it kind of brings to the surface the kind of weird place we are, where people don`t even feel the shame of behaving in a way which is plainly contrary to what the integrity of the office requires.
MELBER: For people watching this and thinking about the conversations you may have just had over the holidays, although, sometimes, with these topics, you skip the family debate for that reason, in your view, based on your extensive experience -- and you have worked in corruption studies, technology, Supreme Court -- you know a thing or two about argument.
What do you think is the best way to actually do this one-on-one?
LESSIG: It`s not about arguing. It`s really not about saying, look, I need you to believe what I believe.
It`s about telling a story. It`s about narrative, as much as it is about lawyers arguing back and forth. And so I think it`s about the networks presenting the story in a way that doesn`t demand commitment, but just gives people an understanding.
Look, you construct a show. What if you had a show every night, 15 minutes, you explaining to people on the left what they`re missing in this event that just happened that day, and somebody from FOX, split-screen, explaining for 15 minutes what people on the right are likely to miss from what happened that day?
MELBER: That`s intriguing, although that still would be tethered to an ideological frame of who`s missing what, rather than what I -- what we sometimes try to do -- I don`t know if we always do it well -- which is, here`s the actual evidence. Let me show you what`s in the brief. Let me show you the testimony. Now you can take from it what you want.
And yet so much of this starts from the position that you`re -- as you`re diagnosing, of people going, here`s who I`m rooting for, and I will find my facts after that.
LESSIG: We have got to accept that truth about us as humans, that we filter according to this perspective, and then we need to use that truth and to unpack the story in a way that lots of people can understand.
So I know that if you explain to people who are not on the right what they`re missing in this story, they will hear it more clearly than if Tucker Carlson explains to people on the left what they`re missing in this story. That`s just the nature of who we are as humans.
MELBER: But aren`t you -- I mean, with the work you`re doing, you`re on "Tucker" later tonight, right?
LESSIG: Tucker hasn`t called me in a long time, no.
MELBER: OK. I`m sorry for you.
LESSIG: You too.
MELBER: We didn`t even get a chance to talk about code as law and law as code.
But maybe we can nerd out another time.
LESSIG: Every time you ask me, Ari, I`m here.
MELBER: Well, I appreciate that.
It`s very -- I say this about Professor Tribe and other people. It`s always interesting, people that I got to read in law school and get to spend some time asking questions directly.
I really appreciate you coming on.
LESSIG: Great to see you.
MELBER: Great to have you.
We`re going to fit in a break, and when we come back, what I have been telling you about earlier this hour, a criminal justice push that is actually leading to real reforms on the ground level.
Jelani Cobb is here next.
MELBER: This new year is also kicking off with some major breakthroughs around the nation that you may not hear much about in Washington, many newly passed reforms to criminal justice that are written under law to take effect in this new year, efforts to curb police use of deadly force in California, eliminating cash bail requirements for nonviolent indictments in New York.
Now, both of those reforms target systemic racism in criminal justice, which is especially acute for the nearly half-a-million Americans locked up for just drug offenses.
African-Americans are nearly six times more likely to be incarcerated, Hispanics three times more likely to be incarcerated than whites, despite similar drug use rates.
Now, the Democratic governor in Illinois trying to fix that with new laws that not only legalize marijuana, but set out to, as he puts it, right past wrongs in America`s war on drugs.
And get this. Have you heard about this? Newly pardoning over 11,000 people for past marijuana convictions.
(BEGIN VIDEO CLIP)
GOV. J.B. PRITZKER (D-IL): The war on cannabis has destroyed families. It has filled jails. We`re addressing the past harms of discriminatory prosecution of drug laws.
We`re clearing 11,017 convictions for Illinoisans across 92 counties.
(CHEERING AND APPLAUSE)
(END VIDEO CLIP)
MELBER: A major development.
I`m joined now by "New Yorker" staff writer Jelani Cobb, a professor at Colombia University School of Journalism and an MSNBC political analyst now.
Great to have you.
JELANI COBB, MSNBC POLITICAL ANALYST: Good. Thank you.
MELBER: What is happening here in a story that is many years in the making, the unwinding of a decades-long war on drugs?
COBB: I mean, there are a lot of reasons why this is significant.
One is just the number. You hear pardons for 11,000 people. That`s not something that happens every day for any reason. And so there`s that part of it that`s attention-grabbing.
But the other part of it is that we have had this conversation about the war on drugs. And we have used that term so frequently that I don`t think that we actually have a clear gauge on what exactly it is.
And the war on drugs was never one thing, but kind of multiple layers of it. There`s a federal layer of it. There`s a municipal layer of it. There`s a statewide layer. There`s a legislative part, the prosecutorial part, the police enforcement part of it.
And so we have seen some progress in the last few years in the Holder DOJ around sentencing disparities for powdered cocaine and crack cocaine. We have seen the FIRST STEP Act and all these things happening on the federal level.
But it`s really important to see what happens on the state level, which is where much of the war on drugs has been executed. And so that`s significant.
And the other part of it is that he signed this just before there`s a decriminalization, legalization of marijuana that`s set to happen in his state. And it`s that -- that`s important, because, for one, as we have seen a kind of burgeoning industry in cannabis, one of the things that`s happened is that people who had prior convictions have been excluded from participating or benefiting financially from that industry.
And so that`s been one of the major concerns for advocates and activists, who`ve been saying, look, there are people who should not have been in prison, people who should not have been penalized in these ways. And now they actually need to have some kind of way back into legal employment. So this shouldn`t happen.
So I think, on all of those layers, what happened is really significant.
MELBER: Yes, and it also goes to something about the way the law operates as a force that can legitimize or delegitimize.
MELBER: And when you look at the history of this country and the new Jim Crow, and many of the issues that you write about that we have covered, you`re also talking about the use and abuse of the law against the poor and largely often black and brown people.
COBB: Right. Right.
MELBER: I say that with regard to John Boehner.
We put something together for your analysis, which is, when he was wielding political power, he was talking about building more prisons, tougher penalties.
From the power he built, he comes out and catches a lobbying job and other business opportunities now selling the very drugs that he worked to imprison other people for.
MELBER: Take a look.
(BEGIN VIDEO CLIP)
JOHN BOEHNER (R), FORMER SPEAKER OF THE HOUSE: We have a real crime bill here in the House, one that would put more cops on the streets, one that would build more prisons, ones that would add tougher penalties.
So I started doing all this research. I think I`m going to my lend my voice to this debate.
NARRATOR: Marijuana has unleashed a green gold rush across our nation. It`s transforming more and more Americans into millionaires, John Boehner reveals how you can become one of them.
(END VIDEO CLIP)
COBB: That`s breathtaking.
And then, in another sense, though, it`s really utterly predictable. I mean, it`s the kind of American way, because what you have actually done is cleared the field of competition.
You have generations of people who have been incarcerated for these very things. The entire -- I know we -- you talk a good deal about hip-hop on this show, but the entire genre of hip-hop is very much a chronicle of what has happened in the war on drugs in communities of color.
And now, all of a sudden, it`s fine. We can get rich off of this. I mean, it`s the same thing for people who are a little bit older who remember the numbers rackets, which people were arrested for in the same sort of crackdowns that happened, and then all the sudden states began having their own lotteries.
COBB: And so it`s not an uncommon thing, but it`s still something that`s shocking every time you see it happen.
MELBER: Yes. And that`s why we wanted to get your voice on this.
And I`m so glad you`re an analyst for us, because we will be coming back to you. Appreciate it.
I would be remiss if I didn`t note that you referred to that as a hip-hop chronicle, which, of course, makes me think of Dr. Dre`s "The Chronic."
COBB: Are we just going to do like word association here?
MELBER: It`s gotten me this far. It`s what I do, but, sometimes, it works and, sometimes, it doesn`t.
MELBER: But you raised both -- not only to make light of it, some serious points here for us to think about.
So, Jelani, thank you very much.
COBB: Thank you.
MELBER: Fit in a quick break.
When we come back: Andrew Yang has a fund-raising surge, and I have an Andrew Yang announcement -- when we come back.
MELBER: 2020 meets a programming note.
Tomorrow, on THE BEAT, we welcome back Democratic presidential candidate Andrew Yang, who`s in an interesting spot. He just posted his greatest fund-raising numbers to date, over $16 million raised here in the critical final quarter before voting begins in the Iowa caucus next month.
And his campaign has been, he says himself, quite unorthodox, getting buzz with viral videos, crowd-surfing, line dancing, as well as pushing all kinds of ideas designed to expand the range of debate, including the -- quote -- "universal basic income," which he referenced on "Ellen" recently in a somewhat lighthearted way.
(BEGIN VIDEO CLIP, "THE ELLEN SHOW")
ANDREW YANG (D), PRESIDENTIAL CANDIDATE: I think we have a gift for everyone here, which is some whipped cream for you all to take home.
ELLEN DEGENERES, HOST, "THE ELLEN DEGENERES SHOW": Oh.
(CHEERING AND APPLAUSE)
DEGENERES: Everyone is getting whipped cream.
YANG: Because everyone loves whipped cream.
(END VIDEO CLIP)
MELBER: You get whipped cream and you get whipped cream, sort of an Ellen- Oprah-Andrew Yang moment.
Well, we have had him here before, and we`re thrilled to have him back. That`s tomorrow 6:00 p.m. Eastern. I hope you tune in.
That does it for us. I`ll see you then.
"HARDBALL WITH CHRIS MATTHEWS" is next.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END