KATY TUR, MSNBC HOST: In the meantime, you`re in the very capable hands of Ari Melber and THE BEAT.
Hey there, Ari.
ARI MELBER, MSNBC HOST: Hey, Katy, and congratulations to MEET THE PRESS on all of that.
TUR: Yes.
MELBER: We have a lot to cover on THE BEAT tonight.
Speaker Pelosi sending the impeachment articles to the Senate this week. We have a special report on the key figure presiding over that trial. Donald Trump already called him an absolute disaster. You may know him as Chief Justice John Roberts.
And later tonight, we report on his powers, the pressure he might put on senators, and what we can all glean from his record thus far.
Also, later tonight, Donald Trump`s own Cabinet contradicting his Iran claims.
But our top story right now is actually months in the making. We are on the verge of the formal transfer of the House`s impeachment to the Senate. This is the closest thing you can see under our Constitution to a step that comes after a person is indicted, the public arraignment in this case of a sitting president.
Speaker Pelosi huddling with her members on Capitol Hill tomorrow. And then she plans to turn to a vote on the floor for naming the impeachment, managers. Again, in our system of government, those are the individuals, when the president stands accused of wrongdoing, they act as his prosecutors for defendant Trump at this Senate trial.
Pelosi also prepping to send the articles over after a delay that she continues to vociferously defend.
(BEGIN VIDEO CLIP)
REP. NANCY PELOSI (D-CA): What we did want, though, and we think we accomplished in the past few weeks, is that we wanted the public to see the need for witnesses, witnesses with firsthand knowledge of what happened.
GEORGE STEPHANOPOULOS, ABC NEWS: Leader McConnell didn`t budge on witnesses at all. He`s not promising up front to have witnesses.
PELOSI: Well, he has -- he will -- I think that he will be accountable to the American people for that.
Over 70 percent of the American people think that the president should have those witnesses testify.
Now the ball is in their court.
(END VIDEO CLIP)
MELBER: And Pelosi`s leaders on impeachment, including potential manager Adam Schiff, have been laying out a strategy that actually goes beyond simply trying to focus on convincing Leader McConnell.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA): I don`t anticipate that Mitch McConnell is going to change his mind, but what I am hoping is that the public pressure to have a fair trial will mean that these moderate Republican members of the Senate will insist on hearing from people like John Bolton and Mick Mulvaney and others.
(END VIDEO CLIP)
MELBER: Maine`s Susan Collins says she is working on exactly such a plan to add witnesses.
Now, let`s be clear. There is nothing particularly moderate about hearing witnesses at a trial. You could be an arch-conservative MAGA supporter, and if you think the evidence from Trump`s own appointees helps the president, you might support giving them this major spotlight.
Remember, that was part of the reason that Donald Trump`s own former campaign manager squared off with Congress after the Mueller report. He and Trump allies thought his testimony as a, yes, witness helped Trump.
Now, people could debate that, but the point is having your own employees or former employees defend you is not that hard an ask.
And yet from current employee Mick Mulvaney to former top security aide John Bolton, to many others, Donald Trump`s team continues to push for censorship over truth under oath at his trial.
And, tonight, there are reports that some of these Republican defectors are actually getting somewhere. Take a look at White House officials now telling CBS they do expect some Republicans to turn on them and force these witnesses.
They, according to this report, are counting at least four Republican votes that could join Democrats for witnesses. NBC has not confirmed that report yet, and no one would claim to know exactly, credibly, 100 percent, how any of these future votes will go in such a high-stakes trial.
Democrats are prepping their case, and they stress that, if the Senate engineers an entire trial showcase here without any witnesses whatsoever, everyone should know it would be the first time any such impeachment case has ever occurred that has been this paltry in history.
(BEGIN VIDEO CLIP)
SCHIFF: If McConnell succeeds in dismissing this case without witnesses, it will be the first impeachment case not just involving a president, but involving anyone in the nation`s history, in which a trial went forward without witnesses.
(END VIDEO CLIP)
MELBER: Tomorrow, President Trump will learn who is going to make the case against him on the Senate floor, who the nation will see arguing hour after hour on live television that Mr. Trump is, allegedly, constitutionally unfit for the office he currently holds.
And, soon, Donald Trump will know when his judgment day begins. It will be a day on the calendar.
How is he handling all this?
Well, the president went from claiming that he welcomes some witnesses on Friday, an echo of his many bluffs during the Mueller probe, to now demanding, not only a trial without any witnesses, but he is actually pleading for no trial at all, publicly arguing there should be a dismissal before any opening arguments.
What a difference a few days makes.
I want to bring in Congressman Hakeem Jeffries, a member of Speaker Pelosi`s leadership team and also on the very relevant Judiciary Committee. He has also been floated -- we won`t ask him, or maybe we will whether he is about to become an impeachment manager. And former acting U.S. solicitor General Neal Katyal, he is writing in "The Washington Post" that Speaker Pelosi still has important leverage on how the trial unfolds.
Thanks to both you have for joining us on a busy evening.
Congressman, what is the House going to do tomorrow? And what is the message it sends not only to the Senate, but to the nation?
REP. HAKEEM JEFFRIES (D-NY): Well, the current plan is that we`re going to have a caucus meeting at 9:00 a.m. tomorrow, where the speaker, along with Chairman Adam Schiff and Chairman Jerry Nadler, will lead the discussion as it relates to the next step in terms of the exact timing of sending over the articles of impeachment and the strategy that we should undertake moving forward.
I can tell you that we`re going to make sure that we keep the focus on the central allegations that led to the president`s impeachment, that he engaged in a geopolitical shakedown. He pressured a foreign government to target an American citizen for political gain, did so corruptly, abused his power.
And, in America, the operating principle that led us to proceed is that no one is above the law. And so we believe that the Senate has to conduct a fair trial. If the president believes that it was a perfect call, then he should not be afraid for individuals like John Bolton and Mick Mulvaney to testify before the American people.
MELBER: When you look at the plan, do you know right now how many House managers there will be?
JEFFRIES: Yes, that determination, as far as I`m concerned, has not been made yet. It does seem to me...
MELBER: Do you know if you are on the short list? Can you say -- without saying whether you are one of them, could you be one of them?
JEFFRIES: No.
And I haven`t expressed an interest in that regard. I think that we have got a number of capable individuals led by Chairman Adam Schiff and Chairman Jerry Nadler, both of whom I would expect to be impeachment managers, but including other distinguished members of both the Intel and Judiciary Committee, to go over to the Senate to make our case.
But that`s ultimately a decision that will be made by Speaker Pelosi. I have full and total confidence in her ability to select the right individuals.
MELBER: Neal, what is on your mind as we look on what is the eve of a significant development here, as the Senate prepares to formally put the president on trial?
NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL: Well, two things.
One is, I think Representative Jeffries and Speaker Pelosi and others really have to be commended, because the Republican intransigence in trying to get at the truth -- and, remember, we`re talking about something very central to our democracy. We`re talking about whether the president tried to cheat in the 2020 election with the help of a foreign government.
And what they have done is force attention to the details and facts, when the Republican Senate has been trying to block all the facts. So that`s the first thing.
And the second is really the remarkable thing that President Trump has done here, which is gag every witness, gag every employee of the executive branch, block every document from coming through.
There is only one explanation, I mean, which is he is acting like a guilty man. And, you know, if he were innocent, if everything were perfect and beautiful, not only, as Representative Jeffries said, would he be saying, oh, have Bolton and Mulvaney testify, he`d be rushing there himself.
The fact is, he has been -- he`s the third president in American history to be impeached, and he`s not out there trying to clear his name under oath.
And that speaks volumes to what this president thinks actually happened.
MELBER: And, Congressman, we`re seeing all kinds of reports flying around about the witness issue.
I want to play Senator Scott trying to tamp down those expectations on the Republican side. Take a look.
(BEGIN AUDIO CLIP)
SEN. RICK SCOTT (R-FL): I think here`s what to happen. We`re going to -- I think both sides are going to present their case. We will get to ask questions in writing, and then we will take a vote. I don`t think we`re going have any witnesses. I think it will be over right then.
(END AUDIO CLIP)
MELBER: Sort of trying to preview maybe a very short sort of -- I don`t know if a shotgun impeachment trial is a term that exists yet in the lexicon. But that`s one view.
And then CBS reporting tonight that already several Republican senators are coalescing and that the White House now is bracing for witnesses. What`s your view, Congressman?
JEFFRIES: Well, certainly, it`s my hope that reason will prevail amongst some of the senators such as Susan Collins and Lisa Murkowski and Cory Gardner and others, Mitt Romney, that they don`t want to have a show trial, a fake trial, a sham in the Senate, that the American people deserve a real trial, because, as was indicated of the seriousness of the abuse of power and the obstruction of the constitutionally inspired impeachment inquiry that we have seen from this president, his behavior really strikes at the heart and soul of our democracy.
He corrupted that democracy. He abused his power for personal and political gain. He tried to solicit foreign interference in the 2020 election, and denied the American people their voice in selecting the next president of the United States of America.
These are serious allegations. They deserve a full airing before the American people. That`s a reasonable proposition.
But the president is running and hiding from the truth, because we believe that, the more evidence that is presented, the clearer it will be to the American people that he is as guilty as sin.
MELBER: Neal, the speaker has also spoken about the value of controlling the timeline.
Mr. Bolton only spoke out in this period between handing off to the Senate. You and other scholars have written about some of the value of that.
I`m curious what you think of "The New York Times"` reporting about the fact that, once McConnell gets it, this might be a very fast start, especially with the Iowa caucus in early February.
And the "Times" noting that, unlike the prosecutors who made the case against President Clinton 21 years ago, these new prosecutors or House managers won`t have the benefit of a two-week holiday break to prepare their arguments or hone strategies.
Sensenbrenner, who did that role as a Republican then, said, I don`t want to give them any advice, but I guess I can say it`s going to be a lot more work than you think, both with regard to the timing and just the gargantuan task of making this case as a trial mode, which is different than some of the hearings we have seen.
You, as one of the people that is most known for your trial advocacy -- President Obama literally selected you to do that for the biggest cases in the country -- what insights do you have? And unlike Mr. Sensenbrenner, what advice would you give?
KATYAL: Yes, so I think the Republicans are hoping for some sort of quick dismissal or some sort of show trial, but I just don`t think that`s going to happen.
I think the American people, 70 percent of them want witnesses, including 39 percent of Republicans. And so -- and I think that number is only going to grow as the factual case builds.
And so I don`t expect the Democrats are going to be too worried about this taking a lot of time. It should take a lot of time, Ari. We`re talking about displacing the president of the United States because he tried to cheat and win an election.
And so I expect them to take their time. I expect them to lay out the case methodically, and the case is a very, very strong one. And I think, as long as the American people actually watch the evidence, I think that there is a very strong chance that lots of people will vote at the end of the day to convict the president.
MELBER: Well, but let me press you a little more on what I`m getting at, because I think viewers will be interested in it from you, which is how would you tell the House managers to present?
Politicians, as we know, are accustomed to a certain speaking style and being diplomatic, or we might say -- and I hate to say it with Congressman Jeffries here -- obviously, I will exclude him -- but sometimes ball- hogging at hearings, sometimes looking for certain moments.
But, in all seriousness, if you`re going to do the job well in the Senate trial, you`re really focused on the 100 Senate jurors in that room, right?
KATYAL: Yes, exactly.
But here you do have something really unique, which is you have two very capable lawyers who are the heads of the Judiciary and Intel committees, Adam Schiff and Jerry Nadler.
So, they`re, I think, already accustomed, particularly Schiff, who was a federal prosecutor, at laying out and doing this in a way that I think both grabs the attention of the senators, but also of the American people.
But at the end of the day, this isn`t about theatrics. This is just about the truth. All these two have to do -- or whoever is selected from House management community -- is just sit there and actually present what the evidence is, because the evidence is so damning, it`s so overwhelming that I think there will only be one conclusion at the end.
And then the last thing I would say, this isn`t a trial with just 100 senators. This is a trial presided over by Chief Justice Roberts, our chief justice of the United States.
MELBER: Yes.
KATYAL: And I think he is going to lend decorum and solemnity to the proceedings.
MELBER: Yes.
KATYAL: And indeed also may just want to be there try and make sure that some truth emerges and that witnesses do come forward.
MELBER: Right.
And, to your point, that -- people may walk into the room with one idea and then see that and feel it and it changes. It`s not just another day in Congress. It`s a great point.
We have more on Roberts tonight.
I have to give, of course, a final word to Congressman Jeffries.
As I said, clearly, you`re not like all the other politicians, not only, sir, because you`re in the segment, but also because you`re from Brooklyn. Shout-out to Brooklyn. So we give you a final word, Congressman.
JEFFRIES: Well, I appreciate that.
And I do believe in the magic Johnson approach to public presentation, which is sharing the ball and sharing the rock with others.
(LAUGHTER)
JEFFRIES: And that will certainly be the way to do things in an appropriate way , because we have so many skilled and talented members of the House who can present, who are committed to being serious and solemn and sober, consistent with the moment that is required as it relates to this constitutional crisis that the president`s abuse of power has thrust us into.
MELBER: Right. And so you like the Lakers, except when they play the Nets?
JEFFRIES: That`s right, although it`s hard to be a Knicks fan these days. But, eventually, we will turn this thing around.
MELBER: Well, you know, Congressman, Neal Katyal will tell you, every rule, every law has an exception.
I appreciate both of you on this big night, Congressman Jeffries and Neal Katyal.
And now we turn here in New York to former federal prosecutor Berit Berger, who has been watching along, as we have seen some of your colleagues there.
I want to pick up on the point from Mr. Katyal, which is, you can walk in that room -- first of all, the most common former process of members of Congress is lawyer, for good reason, lawmaker. But you can walk in that room, even if you haven`t practiced law in 20 years or you have other ideas, and you see the chief justice and you think about what you`re doing.
And at least from our reporting in the Clinton case and other examples, even if you go all the way back to Nixon, we have heard from multiple members of Congress in both parties that that jolts you.
So what do you expect if this starts, whether it`s the end of this week or next week, when they walk in that Senate floor?
BERIT BERGER, FORMER FEDERAL PROSECUTOR: I think that`s exactly right.
And I think an important distinction about the usual proceeding in front of the senators and what this will be is, the senators are going to be largely silent. So they are, for better or worse, members of the jury, but they`re also the court themselves.
So, at least if we can expect this precedent to be what it was in the Clinton trial, they will have to submit written questions if they have questions.
They`re not going to be sitting there orating for long periods of time. They will be taking it in, sitting as jurors, and for the most part being silent.
MELBER: And some of this is the same messaging we see in opening arguments in a real courtroom, where you`re speaking to jurors.
So, even if you`re going get to more complex matters like all the elements of a crime or what the person`s mental state was, you start big. And everyone remembers that in closing arguments. You end big.
Speaker Pelosi was leaning a little bit into that in trying to take something that I don`t think everyone is constantly thinking about, dismissal, what does that mean, and really trying to frame that.
Take a listen to Speaker Pelosi on ABC about this Trump idea of a dismissal.
(BEGIN VIDEO CLIP)
PELOSI: He signed on, on Thursday to a resolution to dismiss the case.
The dismiss -- dismissing is a cover-up. Dismissing is a cover-up. If they want to go that route, again, the senators who are thinking now about voting for witnesses or not, they will have to be accountable for not having a fair trial.
(END VIDEO CLIP)
MELBER: She`s noting McConnell signing on the dismissal, and, as we reported at the top of the show, Trump moving towards that as well.
How important it is, in your view, that anyone presenting this case as a House manager has to clarify for the public what each thing is?
BERGER: Yes, I mean, in my perspective, I think the biggest job of a prosecutor is two things, one, to present the evidence, and exactly as Neal said, to -- the evidence should speak for itself. Here, they have a strong case.
But the bigger thing is to draw together all the various pieces of evidence and to tell the story. So, a lot of times, you will see in a trial the evidence will kind of come in little bits and pieces, but it won`t necessarily make sense or it`s hard to know the import of each significant piece other how they all fit together.
That`s the job of prosecutors, and, here, that`s going to be the job of the managers is to try to put this all together, say, OK, you have this phone call. How does the phone call play into the testimony of all the different witnesses? Is it significant? Does it back up what these witnesses are saying? To really put all those pieces together.
That`s the element that you miss if you simply dismiss a case, if you don`t get to actually have it all fleshed out and hear the managers tell the story and put the pieces together.
MELBER: Right. And that comes back to the prebuttal of, if you have an argument, if you have a defense, why wouldn`t you want to make it, and why -- when you present to it the world, instead of saying, oh, we have to run from the whole process, even if you might have the raw, brute power to do so?
The latest reporting from House -- excuse me -- from Senate Republicans would suggest they might not have those votes if people are already talking about witnesses.
Berit Berger, very experienced with exactly these kind of presentations, thank you so much.
BERGER: Happy to be here.
MELBER: Always great to see you.
Coming up, we dig into, as promised, our special report on a man Donald Trump once called a -- quote -- "absolute disaster," Chief Justice Roberts and his pivotal role in this trial.
Later, Rudy Giuliani out with a new televised defense of his client, as he faces investigation.
Only on THE BEAT tonight, you will see the former Southern District of New York U.S. attorney. David Kelley joins us on all that.
And Trump`s aides undercutting him on Iran.
We have all that ahead.
I`m Ari Melber. You`re watching THE BEAT on MSNBC.
(COMMERCIAL BREAK)
MELBER: Tomorrow, Speaker Pelosi is meeting with Democrats, teeing up a trial of Donald Trump that could begin as soon as this week.
And then Trump`s verdict will depend on those 100 senators who take the oath, just as they did in the Bill Clinton trial.
But there is one other figure with special powers over how this trial runs, because the person who typically presides over the Senate, the vice president, is removed during an impeachment trial, given the obvious conflict of interests. The vice president would literally take office if a president were convicted.
So, instead, the chief justice shall preside over impeachment trials, a role so important, it`s actually the Constitution`s only reference to the chief justice. And that means this trial will be run by John Roberts, a conservative Bush appointee who Trump blasted on the campaign trail.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Justice Roberts turned out to be an absolute disaster. He turned out to be an absolute disaster, because he gave us Obamacare.
(END VIDEO CLIP)
MELBER: Roberts votes with conservatives most of the time.
But Trump seized on his high-profile vote in that Obamacare case to appeal to Republicans whoa wanted a different result.
Now, Supreme Court justices often try to avoid politics, so it`s a sudden change for any of them to be thrust right into a battle over whether to keep or evict a sitting president.
When former Chief Justice Rehnquist presided over the last impeachment trial, he often seemed uncomfortable with the new attention. He laid low. He took cues from the Senate parliamentarian, and donned a black robe emblazoned with gold stripes, an homage to a character from a Gilbert and Sullivan operetta, which he would later reference in a letter, noting that, in that big role overseeing the trial, he did nothing in particular, and did it very well.
Fair enough.
But even doing nothing can be harder than it looks, when you add political fireworks and live TV coverage on every channel. That`s something John Roberts may have in mind as he prepares to take up the same task as his former boss.
Roberts, interestingly, clerked for Rehnquist once upon a time. And in his last foray in a big televised event, swearing in President Trump for the first time, he was facing a large in-person audience, a large national global audience, and Roberts flubbed the wording of the oath in the Constitution.
(BEGIN VIDEO CLIP)
BRIAN WILLIAMS, NBC ANCHOR: Barack Obama took the oath administered by Chief Justice John Roberts.
JEFFREY TOOBIN, CNN: Here you have the perpetual A student, John Roberts.
WILLIAMS: The chief justice went without notes.
TOOBIN: The guy`s never made a mistake in public before, and he thought he could administer the oath by memory.
WILLIAMS: And actually got the oath wrong.
(END VIDEO CLIP)
MELBER: Now, in total fairness, anybody could make this kind of mistake. The Constitution`s text says faithfully execute the office of the president. Roberts moved the word faithfully later.
(BEGIN VIDEO CLIP)
BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: I, Barack Hussein Obama, do solemnly swear.
JOHN ROBERTS, CHIEF JUSTICE OF THE U.S. SUPREME COURT: That I will execute the office of president to the United States faithfully.
OBAMA: That I will execute...
ROBERTS: Faithfully the office of president of the United States.
OBAMA: The office of president of the United States faithfully.
(END VIDEO CLIP)
MELBER: Not a big deal. But Roberts did have to return to the White House the next day to redo the oath, so there was no legal ambiguity whatsoever.
That`s how seriously they took the wording and execution of that oath, a contrast to some Republican senators at this very trial who have announced they intend to violate their oath on impartiality.
But what else do we know, really, about Roberts? His time in the Reagan administration includes advocating robust powers for the president and the power to keep internal executive matters secret from even the Senate.
So, while President Trump has blasted Roberts over Obamacare, he might like the way that Reagan era Roberts had arguments on executive privilege, maybe try to apply them to John Bolton, because Roberts wrote about taking whatever steps were necessary to ensure that the general opening of files to Hill scrutiny would not become routine.
And he criticized a record-keeping law as pernicious, warning against any transparency that could allow a congressional staffer to visit the Reagan Library to see any internal White House deliberative document that they wanted to see.
Now, that`s interesting stuff. In that role, Roberts was -- to be very clear, he was lawyer writing a memo for the executive. When he started to head towards the Supreme Court, he stressed that no one is above the law in comments that undercut recent claims by Trump and Attorney General Barr.
(BEGIN VIDEO CLIP)
ROBERTS: I believe that no one is above the law under our system, and that includes the president.
I have been arguing cases against the executive branch, and frequently arguing cases for the proposition of deference in favor of the legislature.
Judges are like umpires. Umpires don`t make the rules. They apply them. It is a limited role. Nobody ever went to a ball game to see the umpire.
(END VIDEO CLIP)
MELBER: Now, Roberts has not previewed his approach to this trial. He has a new year-end report on the federal judiciary in general that says: "We should each resolve to do our best to maintain the public`s trust that we are faithfully discharging our solemn obligation to equal justice under the law," a goal that could apply to be a judge or a juror in this trial.
And that`s where Roberts` role differs from the courtroom, where judges have the last word. In an impeachment trial, the Constitution treats the senators as both jurors and judges, which actually makes some sense, because these are not random citizens serving on a jury. They are elected lawmakers.
So, to the extent that a law would bind what the judge rules, these are the individuals who can always, literally, change the law with enough votes.
So, with that in mind, consider something you`re going to hear a lot about at this high-stakes trial. Consider rule seven, which holds that the chief justice rules on all questions of evidence, including relevance and materiality, but notes the Senate can overrule those decisions, noting that any chief justice ruling stands -- quote -- "unless a senator asks for a formal vote on it."
And while Roberts usually works with his eight colleagues in private, plus his clerks, in this new trial format, it all comes down to him and one rules adviser, the Senate parliamentarian, Elizabeth MacDonough, a 20-year veteran of nonpartisan government posts.
So Roberts can follow her expertise and lead, or he can just go his own way.
Chief Justice Rehnquist rejected the parliamentarian`s advice on whether to formally call the senators jurors. And Roberts can also lean into the precedent or he can lean away from jumping into these hot debates that are basically coursing through the Senate right now.
Of course, the largest one, the biggest controversy is about witnesses, and Republicans could hope that Roberts just stays out of it. But he could also potentially put more pressure on them if he rules on the precedent.
In the last 231 years of American history, the Senate held 15 total impeachment trials, and it heard witnesses in all 15, every single one.
It`s such a fundamental point that even Donald Trump`s defenders used to make it.
(BEGIN VIDEO CLIP)
SEN. LINDSEY GRAHAM (R-SC): In every trial that there has ever been in the Senate regarding impeachment, witnesses were called.
SEN. MITCH MCCONNELL (R-KY): It`s certainly not unusual to have a witness in an impeachment trial. The House managers have only asked for three witnesses. I think that`s pretty modest.
(END VIDEO CLIP)
MELBER: Yes, a real trial has witnesses.
And while Donald Trump may hope for something easier, to paraphrase Nas, imagine going to court with no trial.
The integrity of the Senate and the chief justice may turn on whether this will be a real trial after all.
Next, we`re going get into all of this with former U.S. attorney David Kelley. We will also get his thoughts on news coming out of Rudy Giuliani - - when we`re back.
(COMMERCIAL BREAK)
MELBER: Joining me now is the former U.S. attorney for the Southern District of New York and my former boss, David Kelley.
Nice to see you.
DAVID KELLEY, FORMER U.S. ATTORNEY: How you, Ari?
MELBER: Starting -- I`m good.
Starting on John Roberts, is it possible that he could do anything to put pressure on these senators? Or do you know him to be someone who avoids pushing conflict?
KELLEY: If he were to do that, he would be really stepping out of his role.
His role is to administer the Senate`s rules. It`s really an extrajudicial role. He is not really acting as a justice, as much as he is serving to administer the Senate`s rules.
So, I don`t see him playing a political role, which that would really be a political role, if he were to kind of weigh in and suggest how they ought to do things.
MELBER: And is it almost awkward? If you are advising a justice, who usually has the final say, you don`t want them to put themselves in a position where they get overruled.
KELLEY: Well, yes.
And you don`t want to end up in Justice Rehnquist`s -- Justice Chief Justice Rehnquist`s position. Remember, back then, he went so far as to tell the sergeant at arms to turn on his mic. The sergeant of arms said, well, we decide that.
(LAUGHTER)
MELBER: Said, you`re out of your lane, for one day of his life. It`s really interesting.
The other thing I obviously want to speak to you about is something our viewers have come to know you as, the former Southern District U.S. attorney. Big job.
Rudy Giuliani, who also held that post, is back out.
Let`s take a look at how he is testing out this new legal strategy, try to avoid the entire Trump trial by any means necessary.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, ATTORNEY FOR PRESIDENT DONALD TRUMP: It has to be treason, bribery, high crime, misdemeanor.
Abuse of power and the other ridiculous, obstruction of Congress, you can`t find it anywhere in 18-USC. You can`t find it under common law. You can`t find it in Lithuanian law. It doesn`t exist as crimes.
QUESTION: At what point does the chief justice come in and respond to a motion to dismiss?
GIULIANI: The very beginning of the trial. The remedy is to go before the Supreme Court of the United States and have it declared unconstitutional.
(END VIDEO CLIP)
MELBER: This is certainly a bank shot, not the main way that the White House is trying to handle this.
And Giuliani says, even if all this stuff doesn`t work, it will all be fine because of Joe Biden.
(BEGIN VIDEO CLIP)
GIULIANI: I could even argue that, politically, it would be better to go to trial. They will find out that Biden didn`t just make money in Iran, but he made money in China, and he made money in Iraq.
(CROSSTALK)
QUESTION: His connections.
GIULIANI: Make him point man, millions of dollars for the Biden crime family, point man, Biden crime family. Cash.
(END VIDEO CLIP)
MELBER: What do you think of Giuliani`s latest remarks heading into the trial?
KELLEY: Well, look, I`m not a constitutional scholar, and I would bet there is not many people who would accuse him of being a constitutional scholar.
I don`t buy it. Look, the chief justice is there not as chief justice. He is there because he is the chief justice, but not to do what a chief justice typically does. Here, he`s to administer the Senate rules.
If somebody wants to challenge the legitimacy of the impeachment proceedings, they would have to start off in like a district court, make an application, take it up to appeal, and maybe eventually the Supreme Court would take it.
I mean, that`s a ripeness issue. And him in his position, I don`t think he is there to do that. And I don`t think there is anything in the Senate rules that would support him doing it.
At the end of the day, if an application is made to dismiss, it goes to the chief justice. He wouldn`t make that decision. Ultimately, the arbiter of that is the Senate.
So what the chief justice is there to do is to really kind of preside over the circus and make sure that, whatever rules they decide upon, they`re followed.
MELBER: So if that`s pretty clear, has Rudy Giuliani forgot how the law works? Does he not care? What is going on?
KELLEY: If you can figure out what`s going through his mind, then you probably ought to get paid a lot more than you do.
(LAUGHTER)
MELBER: I also want to ask you about the ongoing investigation at the Southern District.
You have basically the contents now of his associate Mr. Parnas` materials, his cell phone, WhatsApp messages, text messages, and images, interactions with individuals, all relevant to the impeachment inquiry going in.
Do you think Rudy Giuliani has any potential exposure here when we`re told he is under investigation? He has now begun maligning his former colleagues in that office. He said they were -- quote -- "Trump-deranged, silly, New York liberal idiots" for looking at him at all.
KELLEY: I think those remarks are really offensive.
But, frankly, being a prosecutor, being in that office, the skins are thick, and I don`t think that`s really going to move them one way or the other. But does he have exposure? Anybody under investigation, particularly of that office, has exposure.
MELBER: Do you think that he is freelancing?
I mean, your view of him as a lawyer right now. He is still the criminal defense lawyer for the president. He has invoked that. We did a report last week about how he explained, when he went back to Ukraine because it was so important to show that things the president may have been accused of in the Mueller probe were actually other people`s faults in Ukraine.
And he thought, well, the Mueller probe is closed. It doesn`t even always add up what he claims to be doing on his client`s behalf.
KELLEY: I`d like to see his engagement letter with the president. I wonder what the scope of his engagement is, because any lawyer abides has ethical rules, has an engagement letter, and it`s really spelled out.
So this seems to be a moving target. And it`s really unclear what he represents him in.
But, look, there is a lot of facts out there that have yet to have been -- see the light of day on this investigation. So I think we`re just going to have to wait and see.
And as he goes off and says more and more things, if I was his lawyer and I had any control over him, I don`t think any lawyer would counsel him to be out there saying the things he is saying.
MELBER: Very interesting.
David Kelley, former U.S. attorney for the Southern District of New York, always good to see you, sir.
KELLEY: Thank you.
MELBER: Thank you.
And, as we were talking, I`m told that Mitt Romney just made some very interesting news in the Senate fight over witnesses. We have that breaking story when we come back.
Plus, new revelations about the intelligence that might undercut Donald Trump`s public claims on Iran.
(COMMERCIAL BREAK)
MELBER: Breaking news in this impending Senate impeachment trial of President Trump.
We are just learning a Republican senator has now indicated he will vote to hear at least one witness. This is Senator Mitt Romney makes news moments ago.
(BEGIN VIDEO CLIP)
SEN. MITT ROMNEY (R-UT): I support the Clinton impeachment model, which is a vote on witnesses later. But as to which witnesses I`d want to hear from and so forth, that`s something which I`m open to until after the opening arguments.
(CROSSTALK)
QUESTION: Including John Bolton?
ROMNEY: Pardon?
QUESTION: Including John Bolton?
ROMNEY: Oh, including John Bolton, yes.
I mean, he is someone who I would like to hear from. And, presumably, I get the chance to vote for that.
(END VIDEO CLIP)
MELBER: The power of follow-up questions.
You heard at the end, "Presumably, I would get the chance to vote for that."
That is farther than Romney and other so-called moderates have gone, because he`s not just saying he likes the idea or it would be nice to hear from Bolton.
He is saying, I will vote for him.
Several Senate Republicans have, of course, only discussed this more broadly. This is, to be clear, the first Republican senator to state they will vote for the plan, and that, if you`re counting, suggests that Senate Democrats would only need three more votes beyond Mitt Romney to secure witnesses at this Trump trial.
We have more on this breaking story with a member of Congress later this hour on THE BEAT.
Another topic, though, another story I want to bring you tonight is President Trump`s rationale for this very high-stakes killing of the Iranian general has continued to evolve, leading to not only confusion, but outright open discord on his own national security team.
First, recall what the president claimed on FOX.
(BEGIN VIDEO CLIP)
LAURA INGRAHAM, FOX NEWS: Did he have large-scale attacks planned for other embassies?
And if those were planned, why can`t we reveal that to the American people? Wouldn`t that help your case?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, I can reveal that I believe it would have been four embassies.
(END VIDEO CLIP)
MELBER: That was Friday, Donald Trump talking about four embassies.
Now, this weekend, his secretary of defense -- and this is risky in any job -- stood up and said hey, what the president said, he can`t corroborate it.
(BEGIN VIDEO CLIP)
MARK ESPER, U.S. DEFENSE SECRETARY: Well, the president didn`t say there was a tangible -- he didn`t cite a specific piece of evidence.
What he said is he probably -- he believed, could have been...
MARGARET BRENNAN, HOST, "FACE THE NATION": Are you saying there wasn`t one?
ESPER: I didn`t see one with regard to four embassies.
What I`m saying is, I share the president`s view that probably -- my expectation was they were going to go after our embassies.
(END VIDEO CLIP)
MELBER: Fact-check.
Meantime, two officials saying there were only -- quote -- "vague intelligence" about the plots against a single embassy in Baghdad, neither official saying there were threats against multiple embassies.
Five sources tell NBC Donald Trump authorized Soleimani`s killing seven months ago, in June, while senior officials also tell "The New York Times" this whole thing was a -- quote -- "mistake" for the secretary of state, Pompeo, to ever use the word imminent, which has national security and legal significance.
Pompeo days after the strike pressed on what he meant.
(BEGIN VIDEO CLIP)
CHUCK TODD, MODERATOR, "MEET THE PRESS": Is what -- the attacks he was putting together so imminent and so big, it would have been seen as that kind of negligence?
MIKE POMPEO, U.S. SECRETARY OF STATE: Made the right decision.
TODD: So, was the justification in that he has been this destabilizing force in the region for so long, or was the justification this imminent threat?
POMPEO: Chuck, it`s never one thing.
(END VIDEO CLIP)
MELBER: It went on like that. We`re only showing you brief highlights, or, according to many critics, lowlights, as the president, having braved through this crisis and reached some point of de-escalation, now has a national security team that is literally fact-checking him.
Now, when we come back, we will speak to someone inside the entire congressional fight over what`s going to happen at this Trump trial.
(COMMERCIAL BREAK)
MELBER: Speaker Pelosi could send articles of impeachment to the Senate as early as this week, potentially tomorrow.
We`re joined by someone who has been in the fight, Republican Congressman Tom Reed from New York.
Good evening, sir. Thanks for joining me.
REP. TOM REED (R-NY): Great to be with you, Ari. Thanks for having me on.
MELBER: Great to have you on.
We followed this path in the House. Many witnesses were heard from. Many were not available, as you know.
I want to play what your fellow Republican Mitt Romney just said, making some news. Take a listen.
(BEGIN VIDEO CLIP)
ROMNEY: I support the Clinton impeachment model, which is a vote on witnesses later. But as to which witnesses I`d want to hear from and so forth, that`s something which I`m open to until after the opening arguments.
(CROSSTALK)
QUESTION: Including John Bolton?
ROMNEY: Pardon?
QUESTION: Including John Bolton?
ROMNEY: Oh, including John Bolton, yes.
I mean, he is someone who I would like to hear from. And, presumably, I get the chance to vote for that.
(END VIDEO CLIP)
MELBER: Do you agree with him that there would be value to hearing from Mr. Bolton for the first time under oath on this?
REED: Well, I would defer to the Senate.
This is obviously the Senate`s prerogative, and that`s why the impeachment articles should have been sent over to the Senate. And then whatever they decide to do is completely up to them.
I think hearing from witnesses primarily should have been done in the House, and had more of these fact witnesses presented and pursued. That`s why you`re getting the results that you`re seeing right now in regards to that rush to judgment in the House that now is causing some problems in the Senate.
MELBER: I hear you on that, and that sounds reasonable. Maybe getting earlier testimony would be even better.
Do you then hold the White House responsible for that? Because on many key witness, as you know, the reason they weren`t heard in the House is they were blocked.
REED: Well, and that`s why you go to court. That`s why we have separations of powers, where the judicial branch gets brought into the matter and resolves disputes who gets called in, who has executive privilege, who does not.
And that`s why, when you deal with something like impeachment, it should not have been handled the way it was handled in the House. But now the die is cast, and they will have to deal with it in the Senate.
MELBER: I want to get you in multiple topics.
I guess my last point on this, my last question would be, if there are zero witnesses in the Senate trial, do you think that would be acceptable?
Many have pointed out that would be a first, to actually do an impeachment trial of any kind without any such witnesses.
REED: Well, I think the lessons of history, when this was pursued before, usually, you had the Justice Department doing an investigation, an independent counsel doing an investigation.
So this being a first in the Senate, as well as in the House, is something that is not unique to this case to date. And I think it will be a first however it`s handled in the Senate.
MELBER: OK.
Well, on that point, take a listen to -- you mentioned history.
Here was Mitch McConnell in history advocating witnesses. Take a look.
(BEGIN VIDEO CLIP)
MCCONNELL: There have been 15 impeachments in the history of this country. Two of them were cut short by resignations. In the other 13 impeachments, they were witnesses. It`s not unusual to have a witness in a trial.
It`s certainly not unusual to have a witness in an impeachment trial.
The House managers have only asked for three witnesses. I think that`s pretty modest.
(END VIDEO CLIP)
MELBER: Do you have a concern that Senate Republicans and the White House won`t look very strong and robust if they have to eat all those words and have a witnessless trial?
REED: Well, I think the Senate will do its job.
And that`s to handle this impeachment, just like it was designed in the Constitution to do. And, at the end of the day, this is truly up to the Senate.
And that is why, when you deal with something this historic, this significant, this should not have been rushed and this should have been handled differently in the House.
MELBER: Let me turn to Iran, a big issue, as you know.
"The New York Times" was writing up the evolution or the shifts that we have heard from the White House. and many different administrations, of course, have been pressed about the use of intelligence and truthfulness on this serious matter of when and how American force is deployed.
Reading from "The Times," it talks about the shifting explanation.
Quote: "They had to kill him because he was planning an imminent attack. How imminent, they could not say. Where, they could not say. When, they could not say. And, really, it was more about what he had already done, or, actually, it was to stop him from hitting an embassy or four embassies, or not. For 10 days, President Trump and his team have struggled to describe the reasoning behind the decision to launch a drone strike against General Qasem Soleimani, the commander of Iran`s security forces, propelling the two nations to the brink of war."
Are you concerned about the conflicting statements from this administration regarding what they were doing and why they were doing it?
REED: Well, first, I`m not concerned about that, because I have been briefed on that intelligence report.
I have looked at that intelligence. And I`m comfortable, given the track record of Soleimani and his future activity that was clear to me, based on what I saw, that the imminent risk to American interests and American military men and women in particular was there, and that it was the right call.
MELBER: Can you speak, sir -- so what was the specific imminent risk, in your view?
REED: Well, this is the actual second point, because, as we deal with intelligence matters -- remember, this is real-time intelligence, not as if these assets, this source of information is null and void now because Soleimani has been killed.
So you got to be very sensitive. There are rules where -- why we can`t disclose those details to the public, because you have got real Americans, you have got real American allies, you have got real American intelligence sources put at risk if you just flip that to the public information.
MELBER: Of, course, that seems -- in fairness, that seems to be an argument against the president revealing those details on FOX News.
REED: Well, I think, because of all the pressure and everything, where folks were putting this concern about lack of trust and wanting this information, I think the president was overly candid and was very forthright in his impression and understanding of the intelligence that these attacks were imminent.
And I agree with the president that the information that`s been presented to me, I am very comfortable in the call that was made in taking Soleimani out.
MELBER: Republican Congressman Tom Reed, we like to hear directly from people working on all these issues.
I appreciate you making the time, sir.
REED: It`s good to be with you, as always.
MELBER: Thank you. Yes, sir.
And I will be back with one more thing.
(COMMERCIAL BREAK)
MELBER: I`m thrilled to tell you that a lot of our viewers here at THE BEAT have been writing in about our new interview with the artist Yasiin Bey, who rapped as Mos Def.
We spoke from inside his new art exhibit at the Brooklyn Museum. And he detailed how he gets inspired and why he released his latest music in person, not online.
(BEGIN VIDEO CLIP)
YASIIN BEY, MUSICIAN: Writing for me in that way is a discovery. Things that I know or have seen or just feel good and natural for me to say or express., they come out in these very dynamic, interesting ways. I had a strong feeling that it needed to be a more dynamic experience than simply downloading it from, you know, a device.
(END VIDEO CLIP)
MELBER: What you`re seeing is from a longer version of the full interview, which we just posted.
So you can get it right now. You can see the URL at thebeatwithari.com. Or you can go type in Melber and Yasiin Bey on YouTube and find it.
It`s also up, if you prefer, on our new podcast.
And I should mention we have all kinds of other exclusives that you won`t see on air, including my recent talk with Maya Wiley, John Flannery, and Congressman Jeffries about impeachment, when you go to our social pages. So, check it out.
Thanks for watching THE BEAT.
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