CHUCK TODD, MSNBC HOST: But "The Beat with Ari Melber" starts right now.
Ari, I see you tonight. And I have a feeling I`m seeing you a lot starting Tuesday, when we do the impeachment coverage, brother.
ARI MELBER, MSNBC HOST: You and me together, and a lot of our colleagues. It`s an all-hands-on-deck story.
TODD: Yes, sir.
MELBER: And I will be watching Sunday, a lot of interesting stuff. Thank you, Chuck.
TODD: Thank you, boss.
MELBER: Appreciate it.
And thanks to you at home for tuning in. We`re covering these major developments tonight in the Trump trial, the president officially served with a summons, as he now adds new people to argue on the president`s behalf as this trial hits next week.
Plus, a key witness revealing this new information that could arise in the trial. And there are signs impeachment managers will be working well through the weekend. I can tell you their brief is now due tomorrow at 5:00 p.m.
And the White House may respond by Monday. That is a fast schedule for all the big issues on the table. And the White House has help, reports of several lawyers joining the team, including famed Clinton prosecutor Ken Starr, and the prosecutor who succeeded him. Both lawyers have been on this very show. Plus, they have added former Florida attorney general Pam Bondi, among others.
These additions show the White House adding people with very clear public advocacy and TV experience. They`re being added to a cast of lesser-known government lawyers, including the White House counsel.
Meanwhile, Rudy Giuliani`s indicted associate Lev Parnas, who clearly upended this whole debate when he finally broke his silence, despite awaiting trial himself, well, that has already led some senators to call for Mr. Parnas as a new witness, some Democrats saying he should go above and beyond the group of four that Chuck Schumer has been pushing.
Well, he is back with more bombshells, this from a second new part of his MSNBC interview, alleging Rick Perry was in on the plot to extort the Ukrainian president to help Trump get reelected.
(BEGIN VIDEO CLIP)
RACHEL MADDOW, MSNBC HOST: Perry says, I spoke with Zelensky and I got him to agree.
LEV PARNAS, INDICTED GIULIANI ASSOCIATE: Yes.
MADDOW: I got him to agree to announce the investigation.
PARNAS: Yes, and they did. They announced it, but they didn`t announce that.
See, this was the whole key. They would constantly -- every time somebody would meet Zelensky, they would like agree. And then they would walk it back.
Giuliani blew his lid on that, saying, that`s not what we discussed, that it wasn`t supposed to be a corruption investigation announcement. It has to be about Joe Biden and Hunter Biden and Burisma.
MADDOW: He said, the name Biden needs to be spoken, was his insistence?
PARNAS: Always. Always.
(END VIDEO CLIP)
MELBER: Now, Rick Perry denying that.
The White House also has continued to stress that Parnas is an indicted defendant seeking any way to avoid jail.
And Parnas also alleging Donald Trump was actively involved in another plot that set up a lot of what was supposed to go down with Ukraine, the ousting of the diplomat who might have blew the whistle on the whole thing.
(BEGIN VIDEO CLIP)
PARNAS: He fired probably at least -- to my knowledge, at least four or five times.
He even had a breakdown and scream fire her to Madeline (ph), his assistant, his secretary, before he fired her. And then she said, "Mr. President, I can`t do that."
MADDOW: He was directing the State Department to remove her, and the State Department was refusing?
(END VIDEO CLIP)
MELBER: And now to bring in -- I want to bring in Harvard Kennedy School Professor Leah Wright Rigueur, as well as former U.S. Senator Robert Torricelli.
And take a look at this from the archives. You can see him right here signing the oath to do impartial justice, walking up to that historic table. That was in the Bill Clinton impeachment 21 years ago.
With that in mind, Senator, how does it look today? How does it compare to the senators who were sworn in just yesterday and how they`re approaching that same oath you took?
ROBERT TORRICELLI (D), FORMER NEW JERSEY SENATOR: I think, Ari, the principle difference is, is that they don`t go into this trial in a bipartisan way having agreed to a set of rules, how to proceed.
They`re not approaching it as a body. And probably that is because of the second point. This is the first impeachment in American history with a president running for reelection. So, as much as it is a trial, it is also part and parcel of a reelection campaign, and that was bound to make it different.
MELBER: You mentioned the reelection hanging over this.
Leah, the person who helped Donald Trump get elected the first time who was running the party and then running the White House as first chief of staff, trotting out a defense we may hear more of
Reince Priebus just on FOX News, take a listen.
(BEGIN VIDEO CLIP)
REINCE PRIEBUS, FORMER WHITE HOUSE CHIEF OF STAFF: Sometimes, the best defense is the so what defense, which is, if everything the Democrats said is true, it`s still not impeachable,.
If everything Lev Parnas said is true, it`s still not impeachable.
(END VIDEO CLIP)
MELBER: Leah, why do you think it`s important for some of the president`s outside defenders, Priebus having his differences, but being clearly a Trump person, in that -- in the way that he ran the White House, arguing this sort of rear-guard strategy, which is, uh-oh, even if these witnesses do get to the Senate floor, and do provide disturbing facts, even that`s not impeachable?
LEAH WRIGHT RIGUEUR, ASSISTANT PROFESSOR OF PUBLIC POLICY, HARVARD KENNEDY SCHOOL OF GOVERNMENT: So, the president has offered a strategy that is, you`re either with me or you`re against me.
So, in part, means acknowledging no wrongdoing, so saying, I did nothing wrong, everything that I did was perfectly fine. Had I done something wrong, perhaps we could see it there. But, no, this is a witch-hunt.
What somebody like Priebus is doing is offering essentially a backdoor escape hatch, particularly for senators, for congressman, for Republican loyalists who have no choice but to support Donald Trump, who can say, well, look, all right, maybe he did do something wrong.
Maybe if all of this is true, and it all comes out that is true, it`s still not impeachable, because, by that, at least they can justify it.
It was something that congressmen, Republican congressmen were debating over, were really trying to push with Donald Trump that he refused to accept, but it appears to be, on the street at least, what Republicans are going to stand by. He did something wrong, but you know what, this is not impeachable.
So that may be the kind of out that they have right here.
MELBER: Well, that also goes, Senator, to exactly where America is headed.
This has gotten very real very quickly. There`s new reporting tonight that we will touch on a little later in the hour about Donald Trump being unnerved, being nervous, yelling at people. The thing that he claimed he didn`t care about, he actually cares a lot about. He hates it.
The defenders saying, well, even if the facts come out next week, don`t worry about it. Susan Collins and a few other senators suggesting maybe they will back witnesses.
I`m curious, Senator, what you think about the prospect of a Senate trial providing a closeup of the actual governing of the United States under Donald Trump?
I know that sounds a little bit like, well, hey, hasn`t everyone heard a lot of stories about this president, but I`m talking about the substantive national security, the parts that might not have gotten through to everyone, because what we have heard from some of your colleagues in the Senate was, when they zeroed in on the Clinton activities in the trial, a lot of people were disgusted, but few thought that this was a high crime.
I wonder whether zeroing in on this might leave some Americans, people concerned about security and the governance of the country saying, wait a minute, is this a crime by someone high in office?
TORRICELLI: I think the lessons of the Clinton trial, having lived through this so closely, to be watched here were, first, when the articles of impeachment were first voted in the House, the media reported that Bill Clinton was never going to be convicted and never removed from office. The party was united in the Senate.
The fact is, that wasn`t true. There were real divisions in the Democratic Caucus. For a while there, it was a little touch and go.
MELBER: Let me pause on that, for you to really underscore.
You just said something really huge, which is, you were one of the 100, and you were on the inside. And when all the smart-sounding people fully admit, fully guilty here, in the newsroom, said, oh, we know where this is going, we were wrong, basically, that in the 100 people privately talking, that there was actually more unpredictability?
TORRICELLI: After the first Tuesday lunch, when the Democratic Caucus met, Tom Daschle asked a variety of senators to stand and give their reaction to the articles of impeachment.
And I will protect that meeting and the names involved. But a number of people stood, and we were stunned that they were not as resolute as we thought.
I saw the president that next Sunday morning, and said to him, I`m not so sure we have got all the votes we think we have got.
What followed from that was the Republicans completely overplaying their hand, the behavior of Gingrich and Hyde and the managers and, of course, Starr himself, the way he and Ray had conducted themselves, all put together tended to unify the Democratic Caucus.
And then -- and this is where the president`s made a mistake today. I think he thinks that sending Starr and Ray there is a cute bit of television, and isn`t this entertaining?
That argument will matter. The difference between the Tuesday lunch where I thought there was weakness in the Democratic Caucus and every Democrat standing together in part was tremendous presentations by Dale Bumpers on the Senate floor and Cheryl Mills, who was the president`s counsel.
They carried the day with the argument. I don`t care how partisan it is, how divided it looks. The strength of the argument matters, and even more here, where you have a president running for reelection.
He needs to carry the argument. And if I were to look for two people in America today who could not carry the Trump argument that the FBI was corrupted and making false filings, that you had partisan prosecutors, that it`s a partisan witch-hunt, if I were to look for two lawyers who have no credibility to make that case, it`s Ken Starr and Ray, who are the poster children for exactly that argument.
MELBER: It`s fascinating hearing you lay that out, particularly -- we don`t usually get to see the private waverings.
We don`t know which Republicans might feel that way, that we wouldn`t know about it in real time. You`re sort of educating us on that.
And then you`re mentioning that, to senators, arguments matter, Bumpers, a former senator who took it seriously, Mills, as you mentioned, former deputy White House counsel. We actually showed some of that earlier this week in one of our special reports.
And then, of course, the other folks you mentioned on the prosecution side who now are partying like it`s 1999. They`re back in the game.
Let`s take a little look at you as you were dealing with all this at the time, Senator, in `99.
(BEGIN VIDEO CLIP)
TORRICELLI: We know what everybody has to say. They testified under oath. They have all been cross-examined. We have to reach a judgment.
Is there a definable, reachable, impeachable offense that has been committed here?
(END VIDEO CLIP)
MELBER: How does the Senate assess that at the end of this, when they will have heard from so many witnesses, some of whom, I mean, from the House side, from what`s been publicly presented, even if no one technically testifies in the Senate, who have said, including the president`s employees, there was a quid pro quo, and everything was in the loop?
TORRICELLI: Like you, I`m a lawyer.
And I look at these facts. And you think to yourself, if I were in that situation, what would I be arguing?
I think Donald Trump can`t win that argument. There is too much now in the body politic about what happened in Ukraine, too much yet to come. There`s too many negative facts.
I would do what Priebus suggested. I would go to the Senate and I`d stipulate to the facts. I was concerned that there might be a corruption in the Biden relationship. I wasn`t convinced that it was -- I did withhold the aid. You can say that it was not good policy. You can even say that it was unethical, but it does not reach the bar of an impeachable offense, much as, indeed, Bill Clinton had lied under oath.
But it wasn`t a material fact. And we argued it did not reach an impeachable event. I don`t, frankly, know what strategy the president`s pursuing, because that`s the only way that gets him out of a series of negative facts and raises the argument to the nature of an impeachable offense.
And then, finally, this. If I were arguing this argument on the floor of the Senate, it would be simply this. This is our third visitation with the prospect of impeachment in a generation, after nearly 200 years of not doing it. What you`re risking here is political stability in America.
You can disagree with the president, you can think he was unethical, but if this is where the bar is going to be on impeachment, we are going to risk political stability in America.
If I were his lawyer, that`s what I would be arguing.
WRIGHT RIGUEUR: Yes, so I think what the Trump strategy, the Trump team strategy right now is to play this out in the court of public opinion, which right now the majority of the country believes that Donald Trump did something wrong.
And they believe that there should be an impeachment trial. And so this is part of his reelection campaign to say, either the strategy number -- the backdoor strategy, which is, I did nothing wrong, or, two, the front strategy, which is Trump team is doing, I -- this is a witch-hunt, and I have all of these razzle-dazzle stars around me, and I don`t want testimony, and I`m going to block witnesses, but I`m going to say I`m not being given a fair trial because we don`t have witnesses and because we don`t have the team -- people testifying that we want in front of us.
I don`t think Donald Trump is so much concerned with the Senate. He`s concerned with the court of public opinion, because that`s how Donald Trump thinks. Everything is a Trump rally. Everything is a political moment.
So, keeping that in mind, even though the Senate may not be important for somebody like Trump, it`s deeply important for people that care and accountability. It`s deeply important for Democrats, who hope to win in November 2020, because their arguments do have to matter. They do have to use the time and space that they have to show what Donald Trump did wrong and that they really believe that it was an impeachable offense.
And as you both lay out, any signs that, oh, maybe they want to run from this and make it as quick as possible, anything could happen, as we have showed, under the rules.
But the president just uncorked a bunch of more people, including people who`ve been through this for decades, televised advocates and others with extensive experience, which suggests they are girding to at least be ready for a lengthy and full battle in public.
Very interesting stuff.
Professor Rigueur, Senator Torricelli, thank you.
Coming up, we have new reporting on the president`s state of mind and nervousness in his trial.
And then we have the lawyers arguing on Trump`s behalf before the Senate and the nation, a preview to understand exactly where this trial strategy is going and what we can glean from all of that.
Then we have an insider on all of these Senate arguments, something that you may not see anywhere else. We`re very excited about it. That`s tonight as well.
I`m Ari Melber. you`re watching THE BEAT on MSNBC.
MELBER: New reporting that President Trump is increasingly anxious over his impeachment trial.
"The New York Times" notes he`s become increasingly unnerved by this trial. And he was grilling his aides at a meeting yesterday on how voters actually view this impeachment and repeating he can`t even believe this is happening, and he`s in a predicament like impeachment.
Meanwhile, as his team complains about all of this, the idea that we`re increasingly hearing is a due process argument, that maybe Trump has been mistreated, which is interesting, because it`s also Donald Trump who has publicly called for the prosecution of his enemies.
And then look at this "New York Times" report. The Justice Department, in an unusual case, digging up a years-old leak that appears to focus on Comey. "The Times" reports this is -- quote -- "highly unusual" and it feeds concerns that Trump has officials -- quote -- "politicizing investigations."
I`m joined now by Jelani Cobb, a professor at Columbia University and a writer for "The New Yorker" and an MSNBC analyst for us here.
Good to see you.
JELANI COBB, MSNBC POLITICAL ANALYST: Hey.
MELBER: When we look at all of this, it would be easy to lose track of it.
MELBER: Mr. Comey, whatever one thinks of his choices -- and we have reported critically on some of them -- has now been cleared twice by exhaustive internal reviews.
And yet here we see him with a bulls eye again.
COBB: Right. Exactly.
So, I mean, I think the thing is that when you look at this, there`s been this question about the institutions and their ability to rein in Donald Trump. And this is the -- I think the DOJ perhaps outside the State Department, the institution that you really were most worried about maintaining its integrity under these circumstances, is now doing something which appears to be, if it`s not, it looks a lot like a kind of politically mandated investigation, at the bidding of the president.
And it`s the same sort of thing that we saw with the rebranding of the Mueller report before anyone had the chance to actually get their eyes on it.
And it`s the kind of thing -- when we look at exactly the sorts of things that Donald Trump was complaining about with Jeff Sessions, this is the person that he really wanted. This is the kind of DOJ that he really wanted at that point in time.
So it`s hard to say. Then the other side of this, which is the kind of vast hypocrisy -- I think we have reached the kind of event horizon of hypocrisy, because there`s no way to even catalog aptly.
This is all -- these demands for justice are being made by a person who was rebuked by New York state for their running of a charity, that can`t run a charity in New York state. The president`s charity has been shuttered by -- for financial malfeasance.
MELBER: You say the event horizon of hypocrisy.
MELBER: And that is really something, because we also know from history that you do not need to actually win a conviction or imprison someone.
MELBER: The abuses that led to, for example, some of these surveillance rules that were found by the Church Committee and others involved the targeting of journalists, of critics, of war protesters, of black civil rights leaders.
MELBER: And just the investigative function over them for years was seen itself as not only a constitutional abuse, but effective, effective--.
COBB: I`m glad you brought up the Church Committee, because no one has really talked about that in the context of -- we talked about McCarthy, we have talked about some of the things, but the Church Committee is also one of the really important kind of pivotal points, because it`s the intelligence community being reined in for the first time in the -- really since it got carte blanche in the Cold War.
It was saying, we have all these things, surveilling Martin Luther King, where, under the name of national security, we`re able to do anything, the excesses and abuses of J. Edgar Hoover.
It`s really a kind of -- you don`t have the kind of reputation that the intelligence community enjoys in a kind of bipartisan fashion in 2000 -- well, prior to visit administration. You didn`t have that kind of respect for that community, were it not for the Church Committee reining them in from some of their excesses prior to that.
MELBER: So let me play something for you in the context of Donald Trump`s looming impeachment and the type of defense he`s getting, because we may get right over the hypocrisy horizon.
MELBER: I`m not sure. You will tell us what you think.
This is some of the Republicans we have seen now complaining about the miscarriage of justice in the Trump trial. Take a look.
(BEGIN VIDEO CLIP)
REP. DOUG COLLINS (R-GA): Let the accuser determine what is relevant to the one being accused. The people of America see through this.
The people of America understand due process, and they understand when it is being trampled in the people`s House.
REP. STEVE SCALISE (R-LA): This is Soviet-style rules. Maybe in the Soviet Union, you do things like this.
REP. KEVIN MCCARTHY (R-CA): This why we came here to serve, to trample on due process rights, to issue more subpoenas than laws?
(END VIDEO CLIP)
COBB: Yes, I mean, one, I would caution them to take another look at their Soviet history.
The Soviet history -- the Soviet Union did not have a kind of organized, systematic way in which people were supposed to be brought up for justice. It was at the whim -- it was exactly the opposite.
The more Soviet side of this is what we`re seeing happening in the White House.
And so the other part of it is that the weird due process argument that`s being made, simultaneously saying that the president is a victim of, I guess, maybe a show trial kind of idea of justice, but the presidency, the executive branch has been withholding information, refusing to comply with subpoenas, making sure that none of the information that would be relevant to due process could be available.
And so you can`t have it both ways. And it`s really -- also, as a historian, it`s one of those things that you think about saying, this is not going to age well. When people look back at this, I think that there will be a fairly reasonable expectation that a president should not invite a foreign government to interfere in an election, as he did prior to the election that he won in 2016.
And, as you state, one of the questions is, when the exposition of that, by his own aides or whistle-blowers deemed credible by the intelligence community, which has been -- we have just been discussing this whole segment, leads to an accounting, that is then accused of as a perversion of justice, when, in fact, that would seem to be, as a fact-finding measure, how the system is designed, without taking a position on a trial that ultimately the public can watch and make up their own minds about.
So it`s all really fascinating.
Jelani Cobb, we like having your big picture on the horizon, as you say, on nights like this. Thank you for being here. Really appreciate it.
One of Donald Trump`s just named trial lawyers making news -- when we`re back in 30 seconds.
MELBER: Today, we are learning brand-new information about the president`s legal defense and who will make the case at trial.
One name you may recognize, Alan Dershowitz, will help make the case defending the president.
"The New York Times," The Washington Post," and NBC all reporting Alan Dershowitz will be joining Trump`s legal team, Dershowitz posting today about his -- quote -- "oral arguments that will be offered."
Alan Dershowitz is a Harvard law school professor emeritus and one of the most preeminent criminal defense attorneys in the nation, having tried over 200 cases.
He joins me now via Skype at a busy time.
Thank you for being here, sir.
ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Thank you.
It`s 250 appeals. I`m not actually a trial lawyer. I have only tried a small number of cases. I`m an appellate and constitutional lawyer.
MELBER: Two hundred and fifty appeals cases.
MELBER: And effective when you`re in the courtroom.
DERSHOWITZ: I hope so.
MELBER: Let`s get into what you`re doing.
President Trump publicly admitted that he wanted Ukraine to investigate the Bidens.
Will you and this team argue that the president can legally condition that kind of request on foreign aid?
DERSHOWITZ: Let me be very clear what my role is.
I will not be involved in the factual aspects of the case, in tactical issues about whether to call witnesses.
My sole responsibility is to analyze and present the constitutional arguments against impeachment, based on the two articles of impeachment.
I will present the history of the constitutional impeachment provisions, the history of the impeachments that have gone on, the three in our history, and make a broad argument.
I am not a full-fledged member of his legal team, in the sense that I have a limited role. I will appear one day in the Senate. I`m not part of the kind of tactical or strategic team.
MELBER: Well, what argument will you make that the Constitution supports what the president, as I mentioned, has publicly admitted or, in addition, what he`s been accused of?
DERSHOWITZ: It`s not a question of what the Constitution supports. It`s what the Constitution requires or prohibits.
The Constitution sets out four criteria for impeachment. Treason. That`s not been charged. Bribery. That`s not been charged. Or other high crimes and misdemeanors.
And the high crimes and misdemeanors are obstruction of Congress, which is completely made up. The president invoked his executive authority, separation of powers, checks and balances. That`s an extremely dangerous article of impeachment.
And the other one, abuse of power, virtually half of American presidents, from Adams, to Jefferson, to Lincoln, to Roosevelt, have been accused of abuse of power.
The framers explicitly rejected those kinds of broad open-ended criteria. They were fearful that it would empower Congress to turn the presidency into the prime ministership of England, where the prime minister can be -- have his tenure ended by a simple vote of no confidence.
That`s not what the framers wanted. They wanted specific criteria for impeachment. And none of those criteria, in my view, have been met. And I will lay out that argument.
MELBER: Well, how do you make that argument, though, without dealing with some of these facts, right?
I mean, certainly, one could imagine an abuse of power that would meet the standard. I`m sure you and I would agree on that in theory.
And so the abuse--
DERSHOWITZ: No, no, actually, we don`t agree on that.
MELBER: We don`t agree on that?
MELBER: Well, let me play for you, sir -- let me play for you and then get your response.
MELBER: Let me play for you the president admitting the investigation. And then I will get your response on whether that`s an abuse.
MELBER: Here is Donald Trump on the White House lawn.
(BEGIN VIDEO CLIP)
QUESTION: Mr. President, what exactly did you hope Zelensky would do about the Bidens after your phone call, exactly?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, I would think that, if they were honest about it, they would start a major investigation into the Bidens.
(END VIDEO CLIP)
MELBER: The abuse of power allegation is that that request, conditioned on money that was federally mandated under the law for a different purpose, is the abuse.
DERSHOWITZ: Well, but abuse of power, even if proved, is not an impeachable offense.
That`s exactly what the framers rejected. They didn`t want to give Congress the authority to remove a president because he abused his power. They have to prove treason, they have to prove bribery, or they have to prove other crimes and misdemeanors. Other refers to crimes of the kind such as treason and bribery.
MELBER: So, let me make sure I understand for viewers, because we`re -- you`re making news here about what you will argue on the president`s behalf in the Senate trial.
MELBER: The news you`re making, as I understand it, is that -- quote -- "abuse of power" in your argument --
DERSHOWITZ: That`s right.
MELBER: -- does not constitute as a high crime under the Constitution?
DERSHOWITZ: That`s exactly right.
And that`s exactly what the framers said when they rejected -- remember, the initial criteria for removing a president was maladministration, malpractice, and a range of other kind of vague, open-ended criteria.
And what Hamilton said is, the greatest danger would be to empower Congress to impeach based on how many votes you have on one side or the other. That`s why, after they finished debating whether there should be an impeachment, they went to the criteria.
And Madison, who was very much in favor of impeachment, wanted very limited criteria. And if they wanted to put abuse of power, then they could have.
But let me give you another example. Madison talked a lot about, what if a president becomes incapacitated? But they didn`t put incapacitation as a ground for impeachment. We had to amend the Constitution to do that.
MELBER: You`re talking about the 25th, yes.
DERSHOWITZ: If you want to amend the Constitution to have abuse of power as criteria, you can do that. Nobody will vote for it, though, because presidents have -- accused of abuse of power from the beginning of time.
MELBER: Very interesting getting your expertise and what you plan to argue on the president`s behalf.
I also want to play for you something that would seem to also create high crimes problems, which is--
MELBER: -- Mr. Giuliani, who is not currently publicly slated to be a part of the team that you`re on arguing in the Senate, has been out there saying the president sent him off to do these things abroad.
Some of these things, at least the impeachment managers, the Democrats, argue, are crimes.
Take a listen to how that conflict with what the president has said. Here we go.
(BEGIN VIDEO CLIP)
BILL O`REILLY, FORMER HOST, "THE O`REILLY FACTOR": What was Rudy Giuliani doing in Ukraine on your behalf?
TRUMP: Well, you have to ask that to Rudy, but Rudy, I don`t even know -- I know he was going to go to Ukraine, and I think he canceled the trip.
But Rudy has other clients other than me. I`m one.
O`REILLY: So, you didn`t -- you didn`t direct him to go there on your behalf? You didn`t--
CHANEL RION, ONE AMERICA NEWS: The narrative right now is that you looked into Ukraine because Biden was running for president.
RUDY GIULIANI, ATTORNEY FOR PRESIDENT DONALD TRUMP: A complete lie. I looked into Ukraine because it was thrown at me, put in my lap.
(END VIDEO CLIP)
MELBER: Does it matter that they`re contradicting each other? And does it matter if the president did direct Giuliani, as he has said publicly, to do anything abroad that might involve a high crime or a federal felony?
DERSHOWITZ: Well, sure, it matters for when you decide who to vote for.
I voted for Hillary Clinton. I`m a liberal Democrat. And all of these things will influence my decision who to vote for.
But none of them rise to the level of high crimes and misdemeanors. If you wanted to charge him with a crime, that`s what they did in the Clinton impeachment. They charged him with specific crimes. And that`s what they did with Nixon, but they didn`t -- here, they haven`t charged them with specific crimes as part of the articles of impeachment, just two articles of impeachment, abuse of power and obstruction of Congress.
Neither of those rise to the level of constitutional offenses. It`s not just a question of drafting. It`s a question of what the senators have to vote on.
The senators vote yea or nay, did the president abuse his power and did the president obstruct Congress? And those are not constitutionally permissible criteria.
MELBER: And, Professor, when you make this claim, which you`re previewing what the Trump trial strategy will be, so I`m sure a lot of people--
DERSHOWITZ: No, no, what my -- let me be very clear.
MELBER: Sir, let me ask you a question. And then I will get into -- we will get into that point.
When you make this argument, a lot of people are listening. I was saying that in a good way. It`s quite relevant and newsworthy.
Will you then have to argue against some of the founders and some of The Federalist Papers that do talk about abuse of power being impeachable?
Federalist 65 says abuse of the public trust is the type of thing that you can impeach an officer for.
DERSHOWITZ: Of course -- of course I will take that on.
And, of course, you`re totally and completely and 100 percent wrong. That`s not what Federalist Paper 65 says.
What Federalist Paper 65 says is, that if you look at the criteria for impeachment, treason, bribery, high crimes and misdemeanors, those are crimes that involve the public, and they are political in nature.
That`s very different than saying that abuse of power by itself is a criteria for impeachment. There is a great confusion between whether to impeach, which was a great debate -- and people used terms like abuse of power in the decision whether to impeach. Then they came to a very different decision, what the criteria should be.
DERSHOWITZ: And then Madison, who was very hawkish on impeachment, became very dovish when it came to the criteria, because he didn`t want to give Congress the authority to--
Well, Professor, I`m not that sure that a question itself can be 100 percent wrong, because a question seeks information.
DERSHOWITZ: Oh, OK.
MELBER: You`re providing it. And I appreciate it.
DERSHOWITZ: The premise of the question was questionable.
But I appreciate your asking the question, because--
MELBER: The premise of the question was questionable. And I appreciate your criticism.
DERSHOWITZ: A lot of people read Hamilton that way.
MELBER: You have been on THE BEAT before.
And in the time we have, I did want to show history here, when we had you on and you were discussing some other issues.
MELBER: We did ask about whether you did or would defend the president legally, to join his team.
MELBER: Take a look.
DERSHOWITZ: Right. Sure.
(BEGIN VIDEO CLIP)
MELBER: Have you provided any formal counsel to Donald Trump or his aides or accepted any money, or would you consider providing counsel to them?
DERSHOWITZ: What an insulting question.
I mean, have I accepted money for -- I`m a liberal Democrat.
MELBER: I take it that`s a no.
DERSHOWITZ: Please don`t try to insult my integrity by suggesting that somehow I`m in somebody`s pocket.
MELBER: But you`re a very celebrated attorney who`s taken on a lot of different cases.
Is that a no that you -- this is not a case you would consider at this time?
DERSHOWITZ: I am a civil libertarian. Sometimes, my statement helped Democrats. Sometimes, it helped the Republicans.
(END VIDEO CLIP)
MELBER: Not only is not insulting. It`s now what you`re doing. You are going to argue on behalf of the president and the Senate in this trial.
Let me be very clear. I`m arguing on behalf of the Constitution. I`m arguing to avoid a terrible precedent being set for future presidents.
I am not somebody who is strategizing with his legal team. I won`t be involved in the decision whether to call witnesses. I won`t be involved in facts.
What I`m doing is precisely consistent with what I have said. I`m standing up for what I believe is the proper interpretation of the Constitution.
I would be doing the same thing if Hillary Clinton had been elected and she were being impeached.
MELBER: But you will be doing it as -- you will be doing it as a lawyer for President Trump.
DERSHOWITZ: I am doing it as a lawyer. I am doing it as a lawyer who is not in a lawyer-client relationship with anybody.
I am -- I am def -- I am presenting the constitutional argument that, in this case, happens to help President Trump. I would present the same constitutional argument if Hillary Clinton--
MELBER: But let`s clear, because people -- everyone is watching in this America, Professor.
MELBER: By what authority would you step out on the Senate floor?
Witnesses have not been cleared. The only people on the floor--
DERSHOWITZ: I am--
MELBER: -- are the senators and the counsel for both sides, the impeachment managers and the president`s lawyers.
DERSHOWITZ: I am -- I am part of the legal team with a very specialized role.
MELBER: Got it.
DERSHOWITZ: My specialized role is to present the constitutional argument, the same argument I would present if Hillary Clinton had been elected and she were being impeached.
MELBER: Got it.
DERSHOWITZ: The same argument I presented in three books and maybe 35 or 40 articles.
And so I fully intend to be presenting an argument, basically, on behalf of the Constitution.
Yes, the person being impeached and being removed is President Donald Trump, who I voted against. But I`m trying to present a very nonpartisan view of the Constitution. And I think it`d be refreshing to have a nonpartisan view introduced on the Senate floor in this highly partisan impeachment and removal.
So, I`m proud to be presenting a nonpartisan view of the Constitution.
MELBER: Professor Dershowitz, we have always appreciated having you on in the past and now and hearing about your views of all of this.
I appreciate your time, sir.
DERSHOWITZ: Thank you.
MELBER: Thank you.
And we should mention your new book is "The Case Against Removing Trump." That`s out now.
I want to turn to some more experts to give us context and commentary, MSNBC legal analyst and former civil prosecutor Maya Wiley, and Drew Findling, who is a former president of the National Association of Criminal Defense Lawyers, and has an extensive understanding of how you defend individuals at trial, even when there might be all kinds of evidence there.
Great to have you both here.
MAYA WILEY, MSNBC LEGAL ANALYST: Great to be here.
DREW FINDLING, ATTORNEY: Absolutely.
MELBER: Maya, what did you think of the professor`s remarks?
WILEY: I thought they were incredible.
And what I mean by that is that there are a large number of constitutional scholars -- we heard three of them testify before the House Judiciary Committee -- who said abuse of power is absolutely something that you can - - a president can be impeached for.
And, by the way, the fourth constitutional scholar who was called by the Republicans, John Turley, also conceded that a president could be impeached for abuse of power. His argument was that there was insufficient evidence, which is a different argument from Alan Dershowitz.
MELBER: And yet Professor Dershowitz is surfacing something that we know for a fact -- that`s why he`s so newsworthy -- it will come up at this high-stakes trial, which is, there was a debate over whether to include bribery.
Viewers of this show know that we discussed that, reported on it, and they went with the abuse of power. He says that there is absolutely no way to support abuse of power. As you mentioned, there is, and there`s text on that.
But is it interesting to you, given his real experience in courtrooms, that he`s seizing on that, and he wants to make this a high, sort of constitutional textual debate about, maybe you picked the wrong thing? Maybe it`s not even a high crime?
WILEY: Well, as a strategy, I think it can help serve the argument that these aren`t impeachable offenses, if it turns to being an evidentiary standard, which I would find ironic, because we have an obstruction.
I also found that argument that implausible, that a president can assert executive privilege over every single shred of everything--
WILEY: -- in government and then somehow not be obstructing Congress, when that`s not even the way the privilege functions.
MELBER: And then, briefly, before I turned to Drew, I`m curious, because we have been through so many of these stories together, Maya.
MELBER: What did you think Professor Dershowitz, who I know does things for a reason and has a strategy, what is his interest and emphasis on trying to distinguish his role?
I mean, we got him to finally concede he will be going out on that floor as a Trump lawyer. There`s no other people allowed. There`s no guests. There`s no plus-ones at the Senate trial.
But what is he getting out there in trying to say he`s different than the other lawyers somehow?
WILEY: Well, I think it`s two things.
I think, one -- there is some liability to having an Alan Dershowitz as your defense attorney, because he`s been implicated in -- not implicated in the sense of being charged. Just want to be clear, I`m not saying there`s sufficient facts.
But Alan Dershowitz is someone who was implicated in some relationship with Jeffrey Epstein, not in the rape--
MELBER: Which is a big controversy for the administration, yes.
WILEY: Big controversy for the administration. Not a good look.
But it`s also -- just one last point quickly. It`s also that it enables him to be seen as an independent analyzer of the Constitution.
MELBER: Right, which is an argument he`s making, when, in fact, he will be a zealous advocate.
MELBER: Your view?
FINDLING: Well, there`s just too much to comment over.
And I look at it as a trial attorney. And I look at Alan Dershowitz speaking and think about how he would be cross-examined. And he ended by talking about how partisan the proceedings have been to date.
That shows that he`s walking into this with a political opinion. Secondly, he has a book on this subject. If he were to be cross-examined by a real trial lawyer, he would be eviscerated because of those two things.
Secondly, he knows the federal rules. He understands that there`s a thing called abuse of trust. And there are a lot of people, particularly former politicians, in jails all over America, particularly federal jails, because of abuse of trust.
FINDLING: And he knows that.
FINDLING: And the last thing that he is well aware of is what we call 404(b). And that is past acts.
MELBER: Prior bad acts.
FINDLING: Prior bad acts.
And he has got to walk into his analysis and say, when you`re the president of the United States,you have to think you have an understanding of Article 2 of the United States Constitution.
FINDLING: So he needs to look at the president and all his activities in the past and see whether he`s exhibited an understanding of what`s constitutionally permissible and what is not.
MELBER: Right. And he was a lawyer, so he didn`t want to get into the facts because he`s going to be doing that other type of argument.
We have got to fit in a break. We went long with all this.
Drew, Maya, thank you so much.
We have a lot more of tonight`s show when we come back.
MELBER: We know next week will be one for the history books, the Senate beginning the Trump impeachment trial.
We`re going to dig into all of this in a brand-new special airing Sunday night 9:00 p.m. Eastern on MSNBC. I want you to know about that. DVR it, if you can.
We have got a lot more tonight`s show when we come back.
MELBER: It`s Friday on THE BEAT, so it`s time to "Fallback."
And it is going down on THE BEAT.
I am joined by multi-platinum-selling rapper Yo Gotti, known for hits like "Down in the DM," "Rake It Up" and many things that have taken off in pop culture.
Take a look great.
(BEGIN VIDEO CLIP)
MELBER: There`s a famous song. It`s going "Down in the DM." That refers to what happens with direct messaging.
(END VIDEO CLIP)
MELBER: As you see, he`s everywhere and has worked with all kinds of names you know, like Lil Wayne, Kanye West, Nicki Minaj, Megan Thee Stallion, Travis Scott.
And he`s gearing up to drop his 10th studio album this month, also teaming up with Jay-Z right now to try to hold the Mississippi Department of Corrections accountable. We will get into that.
And also with us, NBC News` own Harry Smith, a veteran newsman who you may remember from 25 years of work at CBS. Take a look up, interviewing everyone from Borat -- wow, that was a -- fun to President Barack Obama.
Great to have both of you together on THE BEAT.
YO GOTTI, MUSICIAN: Appreciate to be here.
MELBER: Nice to see you.
HARRY SMITH, NBC SENIOR CORRESPONDENT: Great pleasure.
MELBER: Harry, let`s start with you and with the news.
What`s on your "Fallback" list?
SMITH: Well, know people are complaining a little bit about the formality of what`s happening in the process of the impeachment as the trial is about to get under way.
And I say fall back. This needs to be taken seriously.
MELBER: This matters.
These guys wrote this stuff a couple hundred years ago, took a lot of things into consideration. They`re following the letter of the Constitution and do this the way it ought to be done.
It should be a sober moment.
MELBER: Sober, and it shows, ideally, no one`s above the law.
And I`m curious what`s on your "Fallback" list and the work you`re doing I want to hear about with these prisons.
YO GOTTI: My "Fallback" list would be the Mississippi prison system, lack of water, lack of food, people sleeping on the floors, living inhumane conditions. Like, they got to fall back with that.
MELBER: And we have seen multiple deaths, what in the law they will call in-custody deaths.
YO GOTTI: Five.
MELBER: Five, which is worse, because they`re in control. So they have these people locked down. The guards have control of the building, and yet people keep dying, some people saying, allegedly, the prison responsible for it.
What are you trying to achieve with this lawsuit? I mean, you`re busy, you`re doing a lot of things. Why are you doing this?
YO GOTTI: Because it`s important to us. You know what I mean?
Like, Mississippi is in my backyard. I`m from Memphis, Tennessee. You can pass any one street and be in Mississippi.
I also -- personally, I have family members who grew up in the prison system, aunties, fathers, brothers. And I understand that these are still human beings. They`re somebody`s brother, they`re somebody`s son, they`re somebody`s father.
And it`s women too that is going through that, from what I heard, so somebody`s mothers, sisters. You know what I`m saying?
So, like, regardless of them being in a prison, it`s supposed to be for rehabilitation. People shouldn`t be getting locked up and dying in their cell.
SMITH: I have been reading about this a lot. I have spent time in prisons.
MELBER: Well, let me ask you this.
MELBER: What Yo Gotti saying, these are people -- these are still people.
MELBER: That`s a constitutional principle. Even if they have done something wrong, adjudicated by the court, they have rights.
SMITH: And so many of our prison systems are conveniently underfunded, which is what it really sounds like is happening in Mississippi, because one of the things they said, there`s just not enough guards in there, right?
YO GOTTI: Yes, I`m hearing that too.
So it`s interesting how we decide to deal with different populations of people and say, well, they just don`t matter that much.
MELBER: What else is on your list here, Harry?
SMITH: How should people fall back?
You know what? I want to go back to the original, if you don`t mind, about this whole process.
MELBER: Well, you know what we call that? We call that a remix.
MELBER: Ooh, right?
SMITH: Sorry. I`m going to sample. I`m going to do a little sampling.
MELBER: Were you spinning or were you swimming?
SMITH: I`m just trying to stay above water.
MELBER: But it`s your time. You use it.
SMITH: No, it`s just the whole thing of what we have witnessed thus far.
There`s been so much showmanship. There`s been so much grandstanding. There`s been so much, what`s this, what`s that interpretation.
There`s little to be interpreted here. One of the things that I think is most amazing is the silence that`s required, right? Think about that.
MELBER: That, at the trial, the senators actually have to listen to evidence.
SMITH: What a thought.
MELBER: When I mentioned it introduction you work with so many people.
We talked about what you`re doing in the prison system with Jay-Z with Roc Nation.
But you have worked with all these other artists everyone recognizes. How does that happen? I mean, if somebody is watching this thinking, how have you come to work with -- on "Champions," Travis Scott, Kanye? Have you worked with so many big people? How does that happen?
YO GOTTI: I mean, you just good creative talent.
Musicians work together all the time. We respect one another. You want to collaborate, if it makes sense. If the time, opportunity make sense, we do records. And, hopefully, they come out and be hits and be special. You know what I`m saying?
MELBER: Is it harder if it`s a lot of big A-list alphas on one track like "Champions" I mentioned, or it doesn`t matter, because you guys vibe together?
YO GOTTI: No, I don`t think it matters.
I think it`s maybe better, because maybe the competition stake is higher.
MELBER: So you feel that energy?
YO GOTTI: I do. yes. Yes.
MELBER: Yo Gotti, listening to you, learning a little bit about what you`re doing, I appreciate you coming on THE BEAT, sir.
YO GOTTI: I appreciate you.
MELBER: Thank you very much.
Harry, always good to see and have you back.
SMITH: We will see you at the cafeteria.
MELBER: Maya Wiley, Alan Dershowitz, Yo Gotti, we fit in as much as we could on a Friday. Thanks for watching, as always.
I will be back here Sunday night 9:00 p.m. Eastern for that impeachment special, brand-new. I hope you will join us or DVR it.
But don`t go anywhere now. "HARDBALL" is up next.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END