KATY TUR, MSNBC HOST: "THE BEAT WITH ARI MELBER" starts right now.
Hi there, Ari.
ARI MELBER, MSNBC HOST: Hi, Katy. Thank you so much.
And thanks to everyone at home for joining us on this federal holiday, Martin Luther King Day.
But it is not a holiday for the news.
New action in Donald Trump`s impeachment trial beginning tomorrow. Tonight, we have new reporting on his defense strategy and why it`s different from what the House Republicans had been focusing on.
We also have a special preview of Donald Trump`s new lawyers. Many have TV experience, including interviews on this show. In fact, we have two renowned lawyers here tonight to handicap these new editions and how they can shape the trial tomorrow.
Also, we have one of our special reports tonight, something we have been working hard on. We think it could be pretty relevant. It`s everything you need to know about Rudy Giuliani`s foreign business work and why it may have helped bench him from this trial.
So, all of that is coming up.
But our top story is the race to tomorrow. We are now 19 hours away from the beginning of a fate that Donald Trump has desperately tried to avoid, both in traditional courtrooms and certainly in the televised well of the United States Senate.
I`m talking about judgment day, about a trial, about a public assessment of his alleged high crimes and thus his fitness for office.
And just moments ago, we just obtained these rules, brand-new, from Mitch McConnell on exactly how they will run the beginning of this trial. And here`s what we know.
The new rules will allow both sides 24 hours of opening arguments. We should note that is the exact same total number of hours as the Clinton impeachment. So, we`re going hear a lot about the precedents. This is the way the Senate is arguing it`s a very similar precedent.
But the catch is a very different deadline for how these hours can be used by the lawyers, very tight deadline, only two days, which sets up the prospect of potentially 12-hour openings, which, depending on when the Senate meets each day, could go late into the night.
We`re also seeing the Trump team`s first trial brief, which argues that this impeachment itself is illegitimate and demands an outcome even many Republican senators now oppose, basically immediate acquittal.
The new brief does not really deny that Donald Trump pressured Ukraine in some way, and that is different, of course, from what some Republican defenders have said.
Now, instead, what the brief does is make a more legalistic argument that the actions themselves, whatever they may have been by the president, are not crimes, and it repositions the potentially corrupt benefit that Donald Trump was seeking, help with reelection, go get Biden, into an argument that what Trump was actually doing was carrying out his long-held interests in halting the internal corruption of corporations inside Ukraine.
You can decide for yourself whether that sounds like a long-term interest of his.
Meanwhile, those arguments will face off against this scene here. You`re looking at House managers who are prepping today, including a walk-through on the Senate floor, inspecting their work space, as they have publicly argued that the facts are already completing the case for them.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA): They really can`t contest those facts.
REP. JERROLD NADLER (D-NY): There is ample evidence, overwhelming evidence. Any jury would convict in three minutes flat.
REP. JASON CROW (D-CO): He has said he has done nothing wrong. So, let`s have the people that are in the best position to confirm that come in and testify before the U.S. Senate.
REP. HAKEEM JEFFRIES (D-NY): Our case is simple. The facts are uncontested and the evidence is overwhelming.
(END VIDEO CLIP)
MELBER: And it is evidence that this trial must ultimately contend with, as some Republican senators are navigating between acknowledging maybe Trump did these things, which many say are not OK, while also arguing these things happen.
(BEGIN VIDEO CLIP)
GEORGE STEPHANOPOULOS, ABC NEWS: Do you think it was proper for the president to solicit foreign interference in our election?
SEN. RICHARD SHELBY (R-AL): Well, I don`t know that has been actually proven.
STEPHANOPOULOS: We`ve seen the president in public ask the Ukrainians to get involved, ask the Chinese to get involved.
SHELBY: Well, those are just statements, political. They make them all the time.
STEPHANOPOULOS: So it`s OK?
SHELBY: I didn`t say it was OK. I said people make them. People do things. Things happen.
STEPHANOPOULOS: Well, this is the president of the United States.
SHELBY: Well, still, the president of the United States is human.
(END VIDEO CLIP)
MELBER: Things happen.
But, of course, things happen in this instance when people make them happen.
For our special coverage tonight, we are joined by U.S. Senator from North Dakota Kent Conrad. He served in the Clinton impeachment. You can see him right there signing the oath book. Former acting U.S. Solicitor General Neal Katyal, he has argued dozens of cases before the Supreme Court, has been covering this trial preparation and knows a lot of the players. And former federal prosecutor Berit Berger with me.
Good evening to all of you.
Senator, as someone who has actually sat back and watched and listened to this type of thing, what is your view, A, of what we`re going to see starting tomorrow? And, B, what does it mean that Senator McConnell would, if you want to put it as fairly as possible, would be adhering to the numerical precedent from last time, but in a very, very fast opening requirement, two days over all those hours?
KENT CONRAD (D), FORMER U.S. SENATOR: Well, as you know, Ari, it`s very difficult.
In the Clinton impeachment, both sides had three days to make their case. So, you had opening argument by the House managers for three days. Then you had the defense for three days.
Then you had questions from members of Congress through the chief justice of the Supreme Court. That went on for two days. So much more extended, much more a chance for the American people to listen and make their own judgments.
I think what`s most striking today is the president said he`s done nothing wrong. You know, I was thinking, if a police chief called a member of Congress and said, you know, I need federal funding because we have violent gangs in the district, I need your help, and the member of Congress said, well, I might be able to do that, but I need you to do me a favor, I need you to announce publicly that you`re investigating my political opponent, would anyone doubt that that was an abuse of power?
And what the president has done here is even worse than that, because he involved a foreign leader, and he involved funds approved by Congress to help the Ukraine defend itself against a Russian incursion.
So, when he says he`s done nothing wrong, that really doesn`t pass the smell test.
MELBER: Well, let me take to it to Berit Berger.
As a prosecutor, would that be a decent public corruption case for a state official?
BERIT BERGER, FORMER FEDERAL PROSECUTOR: Not only would that be a decent public corruption case. My guess is that would be a very strong trial, one that my former offices in both the Eastern District and the Southern District of New York would have indicted and tried quite quickly.
And I can`t imagine that would be a case that a jury would have a very difficult time weighing that kind of a fact pattern.
MELBER: Neal Katyal, I also want to give due time to something we haven`t seen much in this process.
Viewers will have heard emphasize the president`s decision to boycott so much of this has of course basically undercut not only the validity of his approach on the House side, but denied everyone, everyone who cares, including his own defenders, his side of the case, which you with a want, fairly, if you have a nation of laws.
Let me read from the president`s lawyers` new brief, Neal. They argue the House Democrats have only proven the president did nothing wrong, an appropriate telephone call between Trump and Ukraine.
NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL: Yes, so Ari, the brief is a really remarkable document, and it basically is President Trump`s tweets strung together from the last several months and put into a legal brief.
It`s not an actual legal argument. And, I mean, it`s pretty astounding to me that the president of the United States filed this brief, which basically amounts to him saying: I`m above impeachment. I don`t need to be bothered with this and I don`t need to comply with any of the rules and things like that.
And so that`s like the first punch in this one-two punch combo. And the second one, as you just pointed out, McConnell`s rules now say the opening arguments are going to be over two 12-hour blocks, which he is doing on purpose.
And this is a crime against the American people, because what it means is that these arguments are going to take place at midnight, in the dead of night, and there is only one reason why McConnell would do that, because he`s trying to hide the arguments from the American people.
I can`t think of something more anti-democratic for rules. This is one of the most important proceedings in our lifetime, and it`s taking place at midnight?
MELBER: Well, and you`re one of the experts that we and others obviously rely on to understand this, because I think everyone knows the difference between things that might claim or in some ways follow a precedent in our history, and in other ways fundamentally violate it, whether it`s in spirit or technical or otherwise.
So, I`m curious your view on this piece of it, because I know we`re going hear from Ken Starr, Robert Ray and others how much this does follow Clinton precedent. That`s been the talking out of McConnell`s office. Your view tonight on how close or far this is from it?
KATYAL: It`s very far from it, both democratically, because when we`re going to be watching this, but also in terms of what happened.
Before the Clinton impeachment, there was already a massive investigation, dozens of witnesses interviewed, and the like. Here, none of that was allowed to happen because Trump gagged every witness and every document from coming forward.
And then President Trump today had the gall to tweet and say, oh, well, the House didn`t really want Bolton, and now they want him in the Senate, which is absurd.
The House, of course, wanted Bolton. It was just that the president gagged him, as he gagged every executive branch employee. So, basically, this is deviating very far in form and in substance from the Clinton precedent.
And what I fear is, when historians read the brief that the president filed, they can only come to one conclusion, and I do think that`s true generally of the American people if they read it right now. These briefs are not even close, one to the other.
The House brief is a masterful work which lays out the case in striking detail, and the Trump brief is basically: Hey, I`m above all this.
MELBER: Senator Conrad, you were there. Same question to you, sir.
CONRAD: You know, this is so very different.
When we have a president that says he`s done nothing wrong, and you have got 16 or 17 witnesses, mostly from his own administration, confirming that he was pressuring a foreign leader to announce an investigation into his political opponent, and using as leverage almost $400 million appropriated by the Congress of the United States for the purpose of helping defend that nation from the Russians, and the president says he has done nothing wrong, what strikes me is that you really have to wonder, does he have the capacity to know the difference between right and wrong?
And the difference between the Clinton era and this era, you know, in the Clinton era, it was about a matter of inappropriate behavior with another person. That`s what that was about.
This is about something far more dangerous to our democracy. This is about trying to get a foreign leader to weigh in to investigate a political opponent and to announce it publicly. Very different.
MELBER: Yes. And I think that`s pretty clear when you state it like.
On this breaking news of the day limitation, I just want to be crystal clear with viewers, because it was breaking right as we came on the air. As I mentioned, a federal holiday is usually a slower time, but not today with the trial is coming.
So, this is government-related news coming out.
And, Neal, just to underscore it, based on the initial readouts we`re getting and calculations we`re doing, it would appear that, if this was expedited as fast as possible, with Mitch McConnell making speed a new rule regimented priority under these rules that have just been released, it is possible that the bulk of this could technically be completed by this coming weekend, which is quite a contrast to, again, the 15 impeachment trials on record, the Clinton trial, roughly five weeks.
Is there a point at which -- and I don`t mean to be too lawyerly, but we have a star lawyer here, a couple of them -- but without being too lawyerly, is there a point at which speed, which people do have a right to a speedy trial. Everyone`s heard of that.
Is there a point at which speed can be pushed so far, that it actually looks like some sort of problem?
KATYAL: Oh, absolutely.
So, and I think that`s really been the Trump strategy, to try and race this through and without witnesses and the like to hide really what`s happening from the American people.
McConnell has even gone so far as to try and block cameras as the senators are walking to and from and the House managers and this and that. So this is a war on the American people`s right to know that the Senate Republicans have been -- had launched last week, and it sounds like from your reporting today, are continuing.
And, of course, people have a right to a speedy trial. But nobody has a right to a trial that has to go until midnight. And, of course, speedy trial rights, which don`t even technically apply to impeachment, but speedy trial rights even in the criminal context also are weighed against other things, including the public`s right to know.
What`s going on here is they`re trying to whitewash this. It`s not going to work. The CNN poll today just revealed that already a majority of people support the removal of President Trump, and 69 percent of Americans want witnesses at the trial.
And that includes even, I think, 48 or 44 percent of Republicans saying that. So I think that these tactics aren`t working, but I understand why they`re doing them. It`s because they`re afraid of the truth coming out and the American people learning what actually happened in Ukraine.
MELBER: And, Berit, I`m curious what you think, given your experience dealing with trials.
As everyone has emphasized, Neal obviously correct to note, we`re not dealing with an exact trial format because of the unique constitutional nature. And this is a short document. This is a draft resolution McConnell is releasing, again, because he believes he has the votes to formalize it.
So, again, for viewers to understand, as this is a breaking story, you see there is no technical number on it yet. The Senate is obviously not in session right now. But this is what they`re putting out as what they think they can make real.
Does it feel to you like a tell to put a day what would appear to be -- again, I will report more if I get more, but what would appear to be an arbitrary deadline on something that was historically the hours?
Here, you get a certain number of hours. That`s fair to each side. And each day, you figure how long you can go, whereas, here, all of the sudden, this lengthy process, all this interesting stuff that`s happened, and we`re told, oh, you get two days or you forfeit your hours.
BERGER: I think that`s exactly right.
What it speaks to me is that there are facts that they seem very afraid of here. And the only reason to hamstring the presentation of the evidence is if you don`t like or you don`t think you`re going to like what that evidence is, right?
If you think that all of this evidence will actually show that the president did nothing wrong, that this was a perfect call, that every single step of the way there was no impeachable conduct, then why not make this a forum for not only the senators, but for the American people to see all those details, to connect all those dots?
The only reason to try to hide this under the cover of night is if you don`t like what is the facts are or you don`t think they work in your favor.
MELBER: As you put it, hide, the cover of night. These are terms that might be disputed. We`re going to hear from the Republicans. And we will cover that.
But a lot of signs of, oh, let`s not let this play out in public at a normal time, when these have always traditionally been done in the past, which I think is a striking miniature headline out of many headlines coming out of Washington.
Berit Berger, Neal Katyal, and former U.S. Senator Kent Conrad, my thanks to each of you.
And we have a lot left in tonight`s show.
Alan Dershowitz gets fact-checked by, oops, Alan Dershowitz on impeachment. We will show you that. You might need that for all the coming debates going on.
And we will dive deeper into the legal arguments with a former DOJ veteran and Mueller prosecutor and an expert on constitutional law.
Later, what I mentioned, a special report on Rudy Giuliani and why he has just been publicly snubbed by his all-star client, Donald Trump.
All that, plus today`s events honoring the legacy of Dr. Martin Luther King Jr. We have that as well.
I`m Ari Melber. You`re watching THE BEAT on MSNBC.
(COMMERCIAL BREAK)
MELBER: Donald Trump`s new lawyers show his flare for a televised spectacle and an awareness that the Senate trial may focus on what are the fair precedents from the last impeachment case of Bill Clinton, as Republicans now have all-star faces from that historical period to press their view of how these precedents should apply.
These new picks suggest where Donald Trump`s head is at and how his team is planning to fight the case against him, welcoming debates over, sure, potential hypocrisy or controversy of the lawyers, because that may help deflect heat off the presidential client.
And we know where Ken Starr stands on all of this, because the man who argued Clinton should be removed for perjury, well, he already saw a different standard for Trump, appearing to play down reports of Donald Trump`s obstruction when he was here on THE BEAT in 2018.
(BEGIN VIDEO CLIP)
MELBER: You think Congress could impeach a president over -- if they found a pattern of obstruction?
KEN STARR, MEMBER OF PRESIDENT TRUMP`S DEFENSE TEAM: Congress has plenary power under the Constitution, as I see it.
It can say, this is simply, taken as a whole, the course of conduct constitutes an abuse of power,.
MELBER: Abuse of power.
What about discouraging witnesses from cooperating with law enforcement?
STARR: Once again, that could be an actual crime. I don`t think it`s obstruction at all. I think that`s impeachable.
(END VIDEO CLIP)
MELBER: When I pressed Starr about this apparent double standard, we had another exchange where he talked about the hell of impeachment and tried again to distinguish his work from the predicament facing Donald Trump.
(BEGIN VIDEO CLIP)
STARR: Impeachment is hell. We lived through that as a country 20 years ago. And so I think...
(CROSSTALK)
MELBER: You`re saying you put us through hell. You wrote a report for them to impeach.
(CROSSTALK)
STARR: I gave them that -- Ari, this is great.
(CROSSTALK)
MELBER: This is great?
I think that people will question whether you`re applying a different standard to this president, who happens to be in your party, and the president you investigated, who happened to be in the other party.
STARR: No, because it began with actual perjury.
(END VIDEO CLIP)
MELBER: Fact-check. President Trump is now accused of conduct closer to the Constitution`s enumerated concern about the abuse of office, personal enrichment, bribery-type crimes, closer to all of that than perjury in testimony about sexual relations.
Now, anyone can keep an open mind over whether all of the evidence now supports conviction of Donald Trump. The trial has not begun.
But, as a legal matter, allegations of military abuse of power are more impeachable. So the answer you just saw is a tell.
Now, another new member of Donald Trump`s team actually replaced Starr in that same post, Robert Ray, who has been on THE BEAT more than once in exchanges that range from ruminative to fiery.
(BEGIN VIDEO CLIP)
ROBERT RAY, MEMBER OF PRESIDENT TRUMP`S DEFENSE TEAM: We`re all going to be judged at the end of this about whether or not we acted in the best interest of the country.
MELBER: But if somebody told law enforcement folks that they were basically doing something illegal and people shouldn`t cooperate you -- with you, and people shouldn`t do that or they`re rats, you think that`s good?
RAY: Look, my job was to defend the integrity of the investigation. There is no gain here.
(CROSSTALK)
RAY: I listened to your three prior guests all think that this was comical.
MELBER: You just missed two opportunities to address the president calling people rats for cooperating with law enforcement like yourself. You can own that.
RAY: All you`re trying to do is perpetuate a story.
(END VIDEO CLIP)
MELBER: Prosecutors uniformly oppose witness tampering, intimidation, calling people rats.
So refusing to even speak on the president doing that in public also a tell.
And then there is Alan Dershowitz, who just joined us Friday after being named to Trump`s legal team, an appearance that made news in its own right, several headlines and newspaper reporting about what Alan Dershowitz told us Friday.
So there is a lot going on.
And now we turn on the facts and the fact-checks of these arguments with two eminent lawyers, Harvard`s Laurence Tribe, and a veteran of the DOJ and the Mueller probe, Andrew Weissmann, when we`re back in just 30 seconds.
(COMMERCIAL BREAK)
MELBER: President Trump`s newly appointed lawyers will be defending him starting tomorrow, and that includes Alan Dershowitz, who previewed his case on behalf of the president Friday on THE BEAT with the unusual claim that abuse of office, abuse of power should never be impeachable in any circumstance, a departure from his past position on this very issue.
(BEGIN VIDEO CLIP)
ALAN DERSHOWITZ, TRUMP IMPEACHMENT DEFENSE TEAM MEMBER: Abuse of power, even if proved, is not an impeachable offense.
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.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP, 1998)
DERSHOWITZ: We look at how they conduct the foreign policy. We look at whether they tried to subvert the Constitution, the way Iran-Contra did.
If you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don`t need a technical crime.
(END VIDEO CLIP)
MELBER: And we are joined by renowned Harvard constitutional law scholar Laurence Tribe. He has also, we should not, been advising Speaker Pelosi and House Democrats in the impeachment probe.
And we`re joined by MSNBC legal analyst Andrew Weissmann, a veteran prosecutor who served in the Mueller Russia probe.
Good to see both of you.
Andrew, which Alan Dershowitz is right?
ANDREW WEISSMANN, MSNBC LEGAL ANALYST: Well, I actually think this is going to come down to an issue of fact, not an issue of law.
I understand, if you don`t have the facts on your side, you would want to make the argument that, even if all of this happened, it`s not something that can be impeached for. But I just don`t think the American public is going to buy that.
This is one where, if it is shown to the satisfaction of the Senate and the American public, that the president actually was getting a foreign country to open up a bogus investigation on his political opponent in order to cheat on an election, I don`t think you`re going get a lot of sympathy with people saying, gee, I don`t think that`s impeachable.
MELBER: And when professor and attorney Dershowitz says now that abuse of office, abuse of power is no longer impeachable, when it used to be, and claims he -- as he told me, he is a Trump lawyer, but he views this as independent analysis, how does that play out?
WEISSMANN: Well, so, on,e if you`re a lawyer for somebody -- and I have been a defense lawyer -- you have an absolute obligation to represent that person zealously.
There isn`t such a thing as saying, I represent somebody, but now I`m going to tell you my independent views. You don`t have that luxury as a defense lawyer. Your job is to present the best case for that person.
So that, I don`t buy. It is great for defense lawyers to make the best case they can, but they really can`t say, oh, but let me just say this is really an objective view. You`re paid and you`re responsible to your client.
MELBER: Professor, your views?
LAURENCE TRIBE, PROFESSOR, HARVARD LAW SCHOOL: Well, I just am very disappointed at my former colleague Alan.
He`s really lost it, to be very blunt. You don`t need to cite the old Alan Dershowitz to refute the new Alan Dershowitz. Just cite, oh, you know, guys like Alexander Hamilton and James Madison.
The whole history of the United States is a history that is built around the idea that because extraordinary power is given to the president, if the president abuses that power, that`s when you have to do something about it. So, Alan is just -- it just doesn`t make sense.
MELBER: Well, let me ask you about that, because you`re making the point that you don`t need to Dersh-check, you can just fact-check.
TRIBE: Yes.
MELBER: But the fact that Mr. Dershowitz carries himself in this unusual claim that we also dealt with on Friday that this is his independent view means he has really set himself up, because his independent views, as publicly stated, were that abuse of office, abuse of trust, abuse of power, all interchangeable, are impeachable.
TRIBE: Right.
Well, he is claiming to be kind of -- it`s almost like the Wizard of Oz on behalf of the Constitution. His client is the Constitution of the United States.
(LAUGHTER)
TRIBE: And I guess he gets off on that. But there is no such role.
The Constitution didn`t retain Alan Dershowitz. The Constitution is more important, frankly, than Alan Dershowitz. And I think we should really get over the Dersho-mania and focus on how serious this problem is.
The country has a guy in office who is using his power to subvert the integrity of our elections. He is shaking down foreign governments. He is holding up federally appropriated money.
If this is not impeachable, nothing is. And I understand what they`re doing. They`re saying that -- they want to give senators cover. Senators don`t want to have to say that what the president did is fine. They want to say, well, it doesn`t matter. We don`t care whether it`s good or bad. We are assured by counsel for the Constitution, Alan Dershowitz, that it`s not impeachable, so let`s get on with our work.
That really does a great disservice to this solemn proceeding.
MELBER: Well, and you make an important point, as people have heard by now, Mr. Dershowitz talk about how he is doing this for the Constitution, which is, Professor, even a living Constitution is not so alive that it retains clients.
TRIBE: I guess that`s right.
(CROSSTALK)
TRIBE: And it doesn`t shave every day, and it doesn`t have to worry about its hair.
(LAUGHTER)
TRIBE: No, this is scary stuff.
MELBER: Right.
And, well, as we sometimes do, we deal with the serious sometimes with a note of levity. You refer to -- I believe you also coined a term potentially, Dersh-mania, Professor.
But I want to ask Andrew.
You know your way around the courtroom. And the Senate will be a televised courtroom-style presentation. And Alan Dershowitz, who we have fact-checked and I interviewed him Friday, is generally seen by legal experts as quite effective and nimble when he argues, when he presents the case. He has a lot of theatrics, a lot of different ways in.
That`s something we actually tested when we did a totally fair, both sides debate of legal issues with Trump, and we did wit a mock jury on this show, and Mr. Dershowitz participated. And we had juries who said they were predisposed against Trump for various reasons, our jury pool.
And they said they were so moved by Mr. Dershowitz, it gave them second thoughts. It was really interesting. Here`s some of the moments from that for your analysis.
(BEGIN VIDEO CLIP)
DERSHOWITZ: You help me become president of the United States, and I will help you. It would be horrible. It would be awful. It`s not a crime.
It`s extremely, extremely dangerous to target people because you don`t like them. Yesterday, it was Hillary Clinton. Lock her up. Today, it`s lock him up. Tomorrow, it`s you.
I`m not here to defend Donald Trump. I`m here to defend the rule of law. I`m here to defend you.
(END VIDEO CLIP)
WEISSMANN: Two points.
One, when I used to do mob cases, the longer the case, the less that sort of theatrics like that work, because jurors see through it. The first few days, they`re entertained, and after a while they realize it`s all entertainment, but they actually look at the facts.
But just to go back to the second thing, which is really what Professor Tribe said, which is, this case is going to be about the facts. And the most critical issue looks like it`s going to take place on Wednesday, which is an argument on whether the trial will actually have witnesses.
And it is remarkable that we are talking about a rare event in the history of this country, and the issue is whether a trial will have witnesses.
Who would ever think that on one side that`s saying, oh, nothing happened and there is nothing here, but we don`t want any witnesses. It doesn`t make any sense whatsoever.
It`s really remarkable. If it is true that there is insufficient evidence so far, that`s why the American public is entitled to hear additional witnesses. If it turns out that the Democrats have actually proved their case, then you would think the Republicans would want to put on witnesses to rebut it.
Either way, a trial is something where you have witnesses. You don`t actually have a verdict before the trial. So, I think Wednesday is going to be critical on that issue.
MELBER: Professor, I invite your remarks on any of that, as well as another moment we want to play from another lawyer people are going to see a lot of who I mentioned earlier, Robert Ray.
He has been on this show. He took over for Starr. And he had this unusual bit of thanks in a recent interview. Take a look.
(BEGIN VIDEO CLIP)
RAY: And, on a personal note, thank you very much for all the appearances going back now many, many months. I`m not sure -- but for you, I don`t know that I would have come to the president`s attention.
(END VIDEO CLIP)
MELBER: Professor?
TRIBE: Well, I guess the president watches a lot of TV, and he believes that that`s where he is going to win the case. He is going win it on television. He doesn`t really care about the law.
And the very fact that this is being squeezed into these two days, so that, as Neal Katyal said, in the dark of night, they want to hear this stuff, deprives the American people of what they need.
They used to say justice delayed is justice denied. Justice compressed can be justice destroyed.
MELBER: Do you think that`s -- because you`re saying, and, as we mentioned, you have been involved in this process, do you think that Senate Democrats should start trying to whip the moderate senators on the Republican side who claim -- some of them claim they want time, they might want witnesses, to actually reject this tomorrow?
What I`m starting to hear from you and other experts is, this is a big deal, the way that it`s being potentially compressed by McConnell.
TRIBE: I think maybe reminding those moderate senators of the moment they took the oath to do impartial justice would be more effective than any whip I can think of.
They might some day finally realize that they will be judged through history and by their own kids and their grandkids by whether they go along with the McConnell cover-up, or whether they put on the brakes and insist on a real trial. That`s what we ought to have.
MELBER: Two -- we have been talking about lawyer, famous lawyers, eminent lawyers, experienced ones. Can`t ask for much more than Laurence Tribe and Andrew Weissmann for insights on a night like this.
I thank you both.
And I should mention Professor Tribe`s book is called "To End a Presidency: The Power of Impeachment." I read it. It`s nuanced, has a lot of interesting ideas. You should check it out.
Up ahead: Kellyanne Conway invoking MLK. Jason Johnson on that and a lot more.
But our special report comes first: Giuliani`s money-making problem. An indicted associate to a convicted one? We will explain when we come back.
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MELBER: Donald Trump`s expanding defense team is beginning their case in the Senate trial.
This team is not small, 10 lawyers now making the case. Yet the man who has become known as Trump`s most famous lawyer has been totally left out, Rudy Giuliani snubbed, a choice that`s all the more glaring, considering reports that Giuliani was privately lobbying for a role and then went public too.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, ATTORNEY FOR PRESIDENT DONALD TRUMP: I`d love to try the case. I don`t know if anybody would have the courage to give me the case.
But if you give me the case, I will prosecute it as a racketeering case, which I kind of invented anyway. So it`s been 30 years ago, but let`s see if I can still do it.
(END VIDEO CLIP)
MELBER: Let`s see.
The reference to 30 years is actually telling, because, for all the emphasis on Giuliani as a prosecutor or a mayor, when his handling of 9/11 saw his approval double to 79 percent, and he drew praise from everyone from Oprah to top Democrats, remember, Giuliani has not been in public service or in courtrooms for a long time, which brings us to this timely special report right now, with Donald Trump on trial and Giuliani MIA on the Senate floor, because while Trump is taking risks with a legal team that includes all sorts of controversial figures, Giuliani still proved to be too much.
So, to understand how Giuliani got Trump impeached, you have to see how he has been cashing in on his long-ago work, his long-ago public service for a long time.
Rudy Giuliani formed companies to capitalize and monetize his credentials after 9/11. There was a security consulting company, Giuliani-Kerik LLC -- that name would later change under duress -- and Giuliani partners, which consulted for clients from Mexico City to Qatar.
And he created an investment banking firm, and he joined a Texas law firm that rushed to include his famous name and add it to its nameplate.
Millions and millions poured in. And Giuliani had a specific pitch, that hiring him in this new private sector role would kind of deliver his greatest hits from the public sector. And that included his business partner and former top employee, Bernie Kerik, who left from relatively low-level work to commanding the nation`s largest police force, all thanks to a Giuliani appointment.
And after 9/11, Giuliani also pushed Kerik for a federal post in the Bush administration running DHS, which could have given Kerik power to steer federal contracts to companies that also did business with Giuliani, and it seemed to work at first.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: Bernie Kerik is one of the most accomplished and effective leaders of law enforcement in America.
As police commissioner on September the 11th, 2001, Bernie Kerik arrived at the World Trade Center minutes after the first plane hit. The resolve he felt that morning will guide him every day on his job.
And every first-responder defending our homeland will have a faithful ally in Bernie Kerik.
BERNARD KERIK, FORMER NEW YORK CITY POLICE COMMISSIONER: I would like to thank and recognize those whose love, support and sacrifice have brought me to this day, my friend and mentor, Mayor Rudolph W. Giuliani.
(END VIDEO CLIP)
MELBER: With friends like Rudy Giuliani, you can move up fast, but that also brings scrutiny.
Kerik`s nomination was spiked within a week, and the former top cop found himself indicted by the feds.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Rudolph Giuliani`s former right-hand man was formally arraigned on corruption charges. He accepted $250,000 in renovations to his home from a contractor, then tried to convince city regulators that the contractor was not connected to the mob and should be hired for city contracts.
UNIDENTIFIED FEMALE: Conspiracy, wire fraud, mail fraud, evading taxes on half-a-million dollars, lying to the IRS, lying on a loan application.
UNIDENTIFIED FEMALE: Bernard Kerik could be facing prison time after pleading guilty to eight felonies. The former New York City police commissioner admitted he lied to the White House. He also admitted to lying about hiding income from the IRS and faking a charitable contribution.
(END VIDEO CLIP)
MELBER: That`s pretty striking history.
Why are we talking about it right now? Well, this is where Giuliani`s approach is echoing in the open trial of the president, because just like Giuliani pushed Lev Parnas when it seemed convenient and profitable to him personally and is now running from him, well, back then, Giuliani, also a Republican candidate for president, bailed on Kerik.
His mistake.
(BEGIN VIDEO CLIP)
GIULIANI: I think that voters should look at it, and what they should say is, in that particular case, I pointed out that I made a mistake. I made a mistake in not clearing him effectively enough. I take the responsibility for that.
(END VIDEO CLIP)
MELBER: Now, look, that was an important and damaging admission, because Giuliani was saying that, after having stood by Kerik running NYPD, making all the big decisions about his constituents, New Yorkers` safety and then pushing him to be in a key role for all Americans` safety, and only later buckled when outside reporting and this pressure became too much for Giuliani to bear personally.
And then he ran from their joint venture that I mentioned to you. He rebranded Giuliani-Kerik LLC as Giuliani Security and Safety.
And "The New York Times" has reported on Giuliani for decades, the paper documenting the concern among those around Giuliani that those errors persisted because he had been fixated on power, a temptation that, when combined with his new lust for money, undercut his judgment.
He became a -- quote -- "grasping businessman" whose own allies were worried as he became extremely materialistic and almost money-grubbing.
That`s the concern of Giuliani`s own friends. And it may speak to how he could take hundreds of thousands of dollars from an individual like Lev Parnas, a business choice, make no mistake, that blew up, not only in Giuliani`s face, but in the face of his most treasured, most famous presidential client, Donald Trump.
And now Giuliani`s trying to wipe away their work together, like another Bernie Kerik nameplate, lamenting -- quote -- this "very sad situation," as Trump allies come out and try to attack Parnas` credibility.
So, while this trial of Donald Trump may be unpleasant for Donald Trump, it is still showtime for all the president`s favorite lawyers, the ones from TV, the ones from the `90s, the ones who are so vital to the case Trump wants them to make on air, he will even take on their baggage from the Jeffrey Epstein debacle.
But the man who has done the most TV lawyering for Donald Trump, who has been the most brazen, most repeatedly, most recently in the president`s defense, with everything he has done, and all the explaining he has to do, there is still no room on this large team for Rudy Giuliani.
Now, we are on the eve of Donald Trump`s impeachment trial, but that`s not the only thing happening in the country.
I have a very special guest, Jason Johnson, on something very important when we come back.
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MELBER: Today is the federal holiday of Martin Luther King Day.
It`s a time to remember the contributions of this reverend and civil rights leader.
And I want to bring in Jason Johnson, a politics editor for TheRoot.com.
Good to see you.
This is always an important time for reflection, however long delayed and controversially the process was to get this holiday everywhere.
Let`s take a moment and listen to Dr. King himself.
(BEGIN VIDEO CLIP)
MARTIN LUTHER KING JR., CIVIL RIGHTS LEADER: I believe that unarmed truth and unconditional love will have the final word in reality. This is why right temporarily defeated is stronger than evil triumphant.
(END VIDEO CLIP)
MELBER: What`s on your mind, reflecting today?
JASON JOHNSON, THE ROOT: What`s on my mind, honestly, Ari, is how the legacy of Martin Luther King is a constant battle.
His words are very clear, but the way those words are interpreted today, whether it`s misappropriated by Kellyanne Conway, whether it`s the FBI praising Martin Luther King, and yet the FBI headquarters is named after Hoover, who spent his whole life trying to harass King, we have to constantly and vigilantly fight for people to remember what Martin Luther King actually stood for, the radicalism of his positions, the progressivism of his positions, the fact that the things that he was fighting for 60, 70 years ago would still be considered radical today.
And that is an important thing that we have to remember before he gets sanitized, so people can sell bedrooms and mattresses.
MELBER: You lay that out.
And that brings one clear fact we wanted to share as we reflect on understanding him, which was that, around the time of his passing, his disapproval rating, which all viewers know the facts on this, from 50/50, 60/40 in politics, we can show you this, his disapproval rating was 75 percent in 1968, widely opposed by so many.
Why is it, in your view, important that we make sure we remember that reality of the time period, that he was seen and hated by so many and seen, as you put it, as so radical?
JOHNSON: Because we have to remember that a large swathe of white America hated this guy and wanted him dead, that people cheered the harassment and the dogs and the attacks against him.
We have to remember that black people at the time, large numbers of black people disagreed with what he was doing. Some people thought that he was being too forceful. Some people thought he was causing trouble.
His contemporaries, like Malcolm X, had issues with him. You see the sort of frustration and hostility today in music and culture and scholars, where people say that nonviolence was not a good way to operate.
It is a very, very dangerous thing. And I say this, Ari, because -- and to say the Black Lives Matter that we`re in now, 60 years from now, people are going to talk about Black Lives Matter and say, oh, yes, everybody loved what was going on, and Mike Brown was a hero.
No, we have to remember that, at the time, these people were being pilloried. And, in the same way, we have to recognize that Martin Luther King was not popular at the time that he was living. He was lionized 20 to 25 years later.
And we have to understand an America that literally hates people to death, but turns them into heroes later, when their message have already been changed.
MELBER: And so, finally and briefly, who do you see as problematically dealing with his legacy?
JOHNSON: Well, I mentioned the FBI. I mentioned Kellyanne Conway. I mentioned the president of the United States.
The consistent meme of Martin Luther King was a Republican, Martin Luther King would be against impeachment. No, Martin Luther King would be disgusted at the moral rot and the corruption at the center of this current administration. He would be disgusted at a government, Republican and Democrat, that does not focus on the poor.
He would be disgusted at a government that is still dealing with issues like voter registration and voter purges. These are the issues that we`re still fighting about today.
And I think it`s important for everybody to remember on this day, look, you can hear the great King speeches. Go to the B-sides. Go to the deep cuts. Listen to some of the things that he talked about, his speeches to high schools in Philadelphia in 1967.
Re-read the letter from the Birmingham jail. Understand this was a man who was speaking about the dream of what America should be, not the dream that America sells to most of us.
MELBER: I appreciate you laying it out like that, and that many of his appeals for a better approach and a more peaceful approach were not in any way accepting or passing on how much was actually going down, how much state-sanctioned violence and terror there was.
JOHNSON: Right.
MELBER: Jason Johnson, as always, we appreciate you, sir.
JOHNSON: Thanks, Ari.
MELBER: Thank you very much.
Up ahead, we have something special. It`s an exclusive that we are going to tell you exactly how to get ahold of, and a preview for tomorrow`s trial -- when we come back.
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MELBER: It`s not every day the president is put on trial.
So, tomorrow is a big day. And we`re going to be all over it, special coverage, starting with "Morning Joe," and a series of special preview shows tomorrow that are going to break down these new rules we`re hearing about, the battle for witnesses.
But that national news is also not the only thing going on right now. We have a new report on a lawsuit against a Mississippi prison that`s been under fire for inhumane conditions and the death of five inmates.
Now, rapper Yo Gotti just filed a suit against the prison with Jay-Z.
We discussed that in a new interview. Here`s a brief part airing for the first time.
(BEGIN VIDEO CLIP)
YO GOTTI, MUSICIAN: Yes, I don`t think it`s a hip-hop thing or a political thing.
I think it`s something that`s important to you as a person, and you speak up on it.
People in prison can still hear me. Hopefully, we see change, and they start to treat people how they should, they get safer in there, and people get the adequate food and water and medicine and treatments that they need.
(END VIDEO CLIP)
MELBER: You can see this entire exclusive interview right now. We just posted it at TheBeatWithAri.com.
Or, if you`re more a YouTube person, you can go to type in Melber and Yo Gotti on YouTube to find it there.
The reason why I always like to tell you guys about this is, sometimes, you ask about conversations we have on the show: I wish you went longer. What else happened?
So we`re posting more and more of these on TheBeatWithAri.com as extended interviews. They`re also on our podcast, which you can get wherever you get your podcasts.
That does it for the show tonight.
Our special coverage of Trump`s impeachment, again, will begin tomorrow begin tomorrow 9:00 a.m. with Chuck Todd. I will be anchoring at 10:00 a.m. Brian Williams and Nicolle pick it up at 11:00.
"HARDBALL" starts now.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END