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McConnell meets with Caucus TRANSCRIPT: 1/28/20, The Beat w/ Ari Melber

Guests: Jerry Nadler, David Kelley, John Flannery

CHUCK TODD, MSNBC HOST:  And just like I do it 9:00 a.m. to 10:00 a m. during the impeachment trial, Mr. Melber is the person I am handing to right now.

So, Ari, the baton is yours tonight. And I will see you in the morning.

ARI MELBER, MSNBC HOST:  Well, Chuck, it`s deja vu all over again.

TODD:  Yes. You got it, brother.

MELBER:  And I can`t wait to do it again with you. And thank you for having me on "MEET THE PRESS DAILY" tonight. Everybody is shift work here.

TODD:  It`s good -- we`re all shift workers, man. We`re double shift.


TODD:  That`s good. We`re good. We`re good.


MELBER:  Double shift.

Thank you, Chuck.


TODD:  It`s the Ernie Banks day.

MELBER:  You got it. I will see you tomorrow.

And we begin tonight with some major new developments in this Senate trial of President Trump.

Donald Trump`s defense lawyers finishing their arguments today, and now Senate Republicans emerging from a closed-door meeting in Mitch McConnell`s office, and we have fresh reporting on this. I`m going to get right into it right now.

There`s no public resolution on what these Republican senators will do next in the fight to allow witnesses. If McConnell has gotten close to securing 51 votes, he`s not saying yet, which is important, because if he did that, which would be a big procedural victory, big victory for the White House, you might have heard about it on the news.

But if he hasn`t, the rules provide for another day or two before this is all tested on the Senate floor. So here`s what we know. The meeting lasted about an hour.

One senator who was inside telling NBC News there was no official whip count, meaning no announcement, but then there`s this new reporting right here in "The Wall Street Journal" as we came on the air.

"The Journal" reporting at this meeting -- and I have this here. I`m going to read from it -- that GOP leaders told their conference they currently don`t have the votes to prevent witnesses from being called and that -- quote -- "McConnell says the vote total wasn`t where it needed to be on blocking witnesses" -- adding -- quote -- according to one of the sources I`m reading from this.

They say -- quote -- "He had a card with yes, no and maybes marked on it, apparently, a whip count."

So that means, as of this hour, "The Wall Street Journal" joining other reports that suggest this thing is wide open. These witnesses are still the big fight, and McConnell is not where he wanted to be by now.

Remember, he said after the opening arguments will be the time to discuss it, and his position was no witnesses. NBC, I should mention, has not yet confirmed the "Wall Street Journal" account. This is all very fluid.

There are other reports stressing McConnell`s trying to quell potential rebellion brewing as this march of Bolton revelations has roiled even Republican allies of Trump, to say nothing of the others breaking with Trump beyond the chamber.

Donald Trump`s own chief of staff, former chief of staff, now saying he believes Bolton is telling the truth, which means that John Kelly thinks Donald Trump is lying.

The Republican senators pushing for bold and are not going that far, to be sure, but they do want to hear from someone who is publicly contradicting Trump.


SEN. MITT ROMNEY (R-UT):  I`d like to hear from John Bolton. Are we discussing this? Absolutely.

SEN. LISA MURKOWSKI (R-AK):  Mr. Bolton probably has some things that would be helpful for us. And we will figure out how we might be able to learn that.

SEN. SUSAN COLLINS (R-ME):  It is very likely that I`m going to conclude that, yes, we do need to hear from witnesses.


MELBER:  As for trial strategy, if McConnell had a slam dunk, he could keep running this race to finish as fast as possible. Instead, he`s engineered this pause tonight.

And if you follow this trial, you may know this is the first such pause on a weekday since they have begun, with a question session now reconvening tomorrow, a time for senators to reflect, of course, as well on the Trump lawyers` closing today.


JAY SEKULOW, ATTORNEY FOR PRESIDENT DONALD TRUMP:  There is no violation of law. There`s no violation of the Constitution. There is a disagreement on policy decisions.

That is not what the framers intended. And if you lower the bar that way, danger, danger, danger.

PAT CIPOLLONE, WHITE HOUSE COUNSEL:  Overturning the last election, and massively interfering with the upcoming one, would cause serious and lasting damage to the people of the United States and to our great country.

The Senate cannot allow this to happen. We urge the Senate to reject these articles of impeachment.


MELBER:  You know, yesterday, if Donald Trump`s TV lawyers were wacky and sometimes weak, today, what you just saw, Trump`s lawyers played a perhaps tough hand pretty effectively.

They tried to deflect away from this key witness, John Bolton, and make an argument at a much higher altitude, that whatever happened, is this really something the Senate wants to remove a president over on this fast a timeline over what they argue amounts to, at worst, attempted abuse of power and short-term obstruction of Congress?

Now, this is our first full episode of THE BEAT since this trial began, and, later, I will have a breakdown for you on the arguments and the implications of everything up until tonight.

Also, I`m thrilled to tell you, a newsmaker House impeachment manager Jerry Nadler, will be on THE BEAT live later tonight.

But to get right into the latest news, including this "Wall Street Journal" report, I`m joined by Pulitzer Prize-winning "Washington Post" columnist Gene Robinson and former prosecutors Maya Wiley and John Flannery, both of whom have experience as counsels for elected officials.

Sometimes, you come on the air, Gene, and it`s same day, same hour, same stuff. Tonight is different. You have "The Wall Street Journal" with a real firsthand account, they say, from inside the room. We haven`t confirmed it.

It`s all fluid. But "The Journal" says, here we are, and McConnell doesn`t have the votes yet.

EUGENE ROBINSON, MSNBC POLITICAL ANALYST:  And this is the first account that I have seen that represents itself as having come from inside the room, so, look, it`s completely fluid.

I have a feeling this rest for some senators is not going to be restful at all because of being pummeled by the Senate whips to try to get back in line.

MELBER:  As a student of Washington, when you read this part -- and you have it here. I will take -- just this is literally -- we came running out to do it. This is how it really works.


MELBER:  This line that McConnell in front of his peers has this card that says -- quote -- "yes, no and maybes" marked on it. "The Journal" calls that apparently a whip count and says he won`t show the whip count to senators.

We`re getting into real, real Senate dealmaking.

What do you see in this detail here?


Well, it could be almost mean anything. The fact that he won`t show it to them could be -- McConnell plays everything close to the vest. He`s not a really open, transparent guy. But it also could mean that they`re like more maybes, more people actually considering maybe we need to hear from Bolton, than he expected it and than he would like.

And he needs to do some work. That`s what it could mean. I mean, I want to hear some more reports from inside the room. And we have to remember that this is a snapshot of right now. What`s it going to look like tomorrow?

On Sunday, on Sunday afternoon, I thought there was no chance there would possibly be witnesses, and this thing would be over by Friday at the latest.

Then, Sunday night, we had the revelation in "The New York Times."  All of a sudden, yesterday, Monday -- that was just yesterday -- I thought, gee, it looks like there might be witnesses. Now, today, it seemed to maybe pull back from that a bit.

But, from this report, maybe it didn`t. So, we just -- this is a changing situation. It`s very fluid.

MELBER:  I -- because I worked as a Senate staffer once upon a time, Maya, my recollection of this -- there wasn`t an impeachment trial going on -- is, if you have one of these, if you have a yes card to give Mitch McConnell or whoever your leader is, could be Schumer, could be Daschle, and they say, I want it by tonight because he said he wanted this thing resolved, remember, once we heard opening arguments.

If you`re Mitch McConnell, and I`m a senator, I have a yes card, I`m going to come in and say, here you go. I`m going to give it to you. I`m giving this to you.

MAYA WILEY, MSNBC LEGAL ANALYST:  Oh, you`re giving...


MELBER:  I`m giving this to you, because you want to give them yeses and say, we`re in this together, I got you.

So what I read into this, I`m offering my view and then for your analysis and reaction, is, some number of senators -- it may not be many, but it sounds like four or more -- who knows he wants it. They feel this pressure, and something is holding them back.

So, like, that`s not easy. That tells me they`re not just wavering. They might be wavering away from yes.

WILEY:  I agree with you. And I`m keeping this for future use.


WILEY:  It is -- it would be astonishing for them not to have a hard time saying yes to McConnell, when the latest poll is that 75 percent of Americans think that a trial means witnesses.

ROBINSON:  Yes. Yes.

WILEY:  And that`s part of the problem, right? Mitch McConnell is battling against the American people to try to get to yes.

And I think when the -- when you think about what the lawyers did in their defense of Donald Trump, they kept saying over and over and over again, you have not heard from anyone with direct knowledge about what Donald Trump thinks, what he thought about Ukraine, what his intent was, not one witness.

That`s not really true, because there was Gordon Sondland, but put that aside.


WILEY:  That you haven`t heard anyone who said, I talked to Donald Trump and he said, I want the quid pro quo.

And what we have heard from Bolton, if he says what we are hearing his manuscript says, he`s saying, I`m that guy. I`m the guy who had the conversation with Trump, where Trump said, oh, yes, we`re going to hold this aid until we get those investigations announced.

That makes it extremely hard then to argue to the American public why you would say, no witnesses.

ROBINSON:  One thing you pointed out, that Quinnipiac poll that came out, 75 percent in favor of witnesses, that was coming out just as the senators were going into that room.


ROBINSON:  And so question that was asked on our air, by our colleagues on the air at the time, was, do they know about this when they`re going into this little room, where Mitch has control?

They`re not going to be -- are they going to be able to use their devices? Are they going to know about this?

If this report is true, I think they probably do. They found out about that poll.

MELBER:  Yes, it`s really fascinating.

Let me bring in John Flannery for a moment, who`s with us from Washington.

You have advised congressional investigations. You know a little bit about how that works in those backrooms. And I want to be judicious, as we always are, with all of the information. This is the latest story.

And I can tell you, people in Washington, people in the White House are reading it and responding to it like we are right now. But it`s not the only story. This story breaking at about 5:50 p.m. East Coast.

Earlier this afternoon, though, Politico had a piece with a very different flavor. It said -- quote -- "Senate Republicans calm down after Bolton panic." A reporter there saying, yes, there was panic that swept through the Republican ranks. But by Tuesday -- quote -- "A feeling of calm had been restored to the Republican Conference."

So there`s all kinds of different reaction and, as always, spin.

Based on your time on the Hill, what do you read is happening?

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR:  Well, what I read is that the scent of desperation, if you will, with these revelations are something that doesn`t happen in other nations, where dictators have show trials and deny documents and witnesses, and then the witnesses are sometimes in peril after that fact.

What they can`t handle is the fact that power can`t -- pardon the expression -- trump truth. And they know that there`s going to be a story tomorrow and the next day about Bolton and disclosures from the book or something else. They cannot run away from this.

And so the maybes, if that`s what we have, and the desperation and the reservation reflects a political intellect that says, we`re cornered. We have to make a choice here. And if we don`t vote for witnesses, the 75 percent or more out there who want those witnesses and want a real trial, they`re going to come back on us.

And McConnell on some level is a -- he`s a bean counter. He`s going to count it. I wonder if there are recriminations for what they know about Bolton and when they knew about Bolton.

I mean, if the White House had it on December the 30th, and it`s hard to believe that the House -- the White House counsel didn`t know about it, Cipollone at the head of that pack. Then there has to be some tough talk among the senators about, why did you hold this from us, because you put us in this impossible position?

I don`t think the Senate comes out of this well.


MELBER:  And that goes to two things. You mentioned counting the beans.

The beans can be pressured, right? The beans can be fried and refried.

FLANNERY:  Absolutely, yes. And they are.

MELBER:  One reason -- one layer to this is, given what you just said, that the White House put McConnell in a bad position, that he made the rare public statement to confirm that he didn`t know about it, which was his way of telling everyone, hey, if this looks sloppy, it`s not from me.

And this may be in "The Wall Street Journal" tonight because he`s letting everyone know, Donald Trump, his aides, the assorted allies and people who have levers of power in the Republican firmament, of saying, I`m doing what I can, I don`t have 51.

If somebody has pressure to call in, a favor to call in, if there is a being to be fried, come help me do it, which would be also very Mitch McConnell.

And that is stacked up against something I want to play for you, which is Adam Schiff invoking what I mentioned.


MELBER:  Donald Trump`s own former chief of staff basically calling him a liar today. Take a look.



REP. ADAM SCHIFF (D-CA):  It`s clear, I think, today that they are still reeling from the revelation of John Bolton`s book.

General Kelly has stated that he believes John Bolton and, more importantly -- and that is extraordinary, in and of itself, that the president`s own former chief of staff believes John Bolton and, by implication, does not believe the president of the United States that he worked closely with for such a long time.


MELBER:  General Kelly would figure in here, I believe, as a rough analogue of a character witness, John.

What kind of character witness is he right now for the president fighting for his job?

FLANNERY:  Well, he`s very -- he`s doing real damage to Trump.

And, as we suspected, he was staying in that position to protect the nation against Trump. The biggest irony that I find fascinating is that here we have an impeachment involving a shakedown of a foreign leader, and we have a Senate under McConnell that was going to protect the president from that shakedown while it`s being shaken down by the president to give him an acquittal that is not deserved by the facts and the law.

That`s beautiful. And there`s -- I don`t know if you read the article by Bowie. But I went to read the article that Mr. Dershowitz cites.

MELBER:  Oh, of course. John, of course you did.

FLANNERY:  Of course I did.

And in the article, the author says, "This interpretation, this remains the dominant one 150 years later. Namely, you do not need a crime. And they have put their entire defense today by Sekulow on this thin read, as if this means anything.

It was a it was a shell game, Three-card Monte. I don`t know if you have ever seen this on the street, but that`s what I believe both Sekulow and Dershowitz were doing yesterday.

Under which of these things is the pea? And it`s always a deception. And that`s what we have here. We have a legal deception and we have them running for the hills because they don`t have the facts to defend the president. And they don`t know what to do about it, because they have been cut short on information, probably by the White House withholding this essential information from them.


Well, I appreciate you fact-checking Alan Dershowitz in detail. To paraphrase "Annie Hall," you know nothing of my footnotes, and how you became an impeachment lawyer is beyond me.


FLANNERY:  That`s a good one.

MELBER:  All right.

FLANNERY:  Let me quote Seneca to you, OK? You are now becoming an advocate of Seneca, because we have been teaching you on the air here.

MELBER:  I have been learning from you, at your proverbial knee, yes.

FLANNERY:  And one of my favorite ones is, the fates lead you to your destiny or drag you to it.

And the Senate`s being dragged to its destiny. And the question is, will it accept it or not?

MELBER:  I do think that applies.

And whether Mitch McConnell is being dragged to the point -- Gene Robinson also put it very well tonight -- he doesn`t want to show his cards. He didn`t show the count, according to the report from inside the room credited to "The Wall Street Journal." 

But somebody got word to "The Wall Street Journal" that, hey, send help, or we`re going to be dragged into witnesses, which Mitch McConnell and Donald Trump don`t want.

It`s quite a night in this trial.

I have to fit in a break, so I want to thank John Flannery in Washington, thank Gene Robinson, who has been a big part of our coverage, of course, throughout.

FLANNERY:  Thank you.

MELBER:  Maya Wiley stays with me.

I want to come back to you later in the hour.

Coming up, House impeachment manager Jerry Nadler is here live. We`re going to get into all this, including his reaction to this breaking story.

Also, with the opening arguments now formerly finished, my breakdown on the prosecution defense arguments and the implications. I want to tell you which evidence is breaking through and how.

And, later, we will dive deeper into today`s action and the rising pressure on Republicans over witnesses and how everything might be about to change, or not.

The only way to know is to keep staying tuned.

I`m Ari Melber. You`re watching THE BEAT on MSNBC.



CIPOLLONE:  I think you have heard a lot from our side. And I think we have made our case.


MELBER:  And just like that, the president`s legal team finished defending his conduct and his job today, wrapping up early, leaving roughly six-and- a-half-hours on the table.

This is a process that`s been unavoidably repetitive at times, like any trial, but today featured these new complications for Trump lawyers.

After mostly ignoring the biggest developments in this case, John Bolton uncorking his eyewitness account of Trump`s alleged abuse of power, and then Trump`s own former Chief of Staff John Kelly siding with Bolton, saying he believes him, well, it was a lot of pressure.

We`re seeing that unfold tonight. And stop and just take it in. In the middle of this trial over the president`s conduct, while Trump says Bolton`s lying, Donald Trump`s own former chief of staff publicly sides with Bolton and telegraphs to the world the president is lying about his defense in this impeachment trial. Listen to Bolton.

It`s a huge setback for the president that in any other administration would, of course, be the biggest story all week.

And then, remember, on top of all that, it is still John Kelly`s replacement, Mick Mulvaney, who also sided with the Bolton part of the case earlier, when he admitted the Ukraine plot in his infamous White House press conference, colloquially known as "We do it all the time."

So you take that all together, and today Trump lawyer Jay Sekulow switched gears under this pressure to address the mustache in the room, these Bolton revelations.


SEKULOW:  The Bolton revelations, if John Bolton said this, it was only to sell a book.

The content of John Bolton`s manuscript.

Responding to an unpublished manuscript that maybe some reporters have an idea of maybe what it says. That`s what -- I mean, that`s what the evidence -- if you want to call that evidence. I don`t know what you would call that. I would call it inadmissible, but that`s what it is.


MELBER:  Mr. Sekulow was at times more effective and grounded than the arguments of Trump`s TV lawyers, Ken Starr and Alan Dershowitz.

But what he just said there, it`s not his call whether Bolton`s testimony is admissible. He knows that. And so does his primary audience, these Senate jurors.

They could vote as early as this week on the steps towards calling Bolton. This afternoon, you had the Republican senators heading to Mitch McConnell`s office for -- and this was an interesting way to put it -- perhaps the most important moment of the trial happening behind closed doors, according to one Bloomberg reporter.

And as we come on the air tonight, we have been hearing all about the pressure on McConnell, who reportedly doesn`t have the votes at this hour.

Why? Well, partly in reaction to this trial. That`s the point I want to share with you, now that we have had time to let the opening arguments sink in.

It is those arguments and the evidence and the missing evidence that is moving people, Republicans, like Senator Murkowski, welcoming Bolton in public just today.


MURKOWSKI:  Mr. Bolton probably has some things that would be helpful for us. And we will figure out how we might be able to learn that.

COLLINS:  It is very likely that I`m going to conclude that, yes, we do need to hear from witnesses.


MELBER:  And top Democrats arguing the GOP resistance to Bolton itself is a tell.


SCHIFF:  Reading between the lines of their defense, it`s basically, yes, he did it. We know he did it. The president knows he did it. We just don`t want the American people to see any more evidence that he did it.


MELBER:  So, where are we now, a week into the trial, opening arguments done?

This is the famous moment Mitch McConnell touted as the time to decide on witnesses. Is the case for witnesses stronger now legally, with Bolton`s eyewitness account, with Trump`s own lawyers emphasizing the role of witnesses to resolve what the president did?

Yes. The legal case, the trial argument is now even stronger.

If the evidence and the witnesses and the process press towards adding witnesses, and some Republicans are saying so in public, as Mitch McConnell says he still doesn`t have the votes, well, did the White House have a plan for rebutting all this?

Yes. In trials, you don`t always fight evidence with evidence. Sometimes, the defense doesn`t have good evidence. So then you fight evidence with not evidence, meaning you say that, no matter what the evidence is, this alleged conduct is not a crime, so just go away.

And that is why, remember -- take it all in -- on cue, in the president`s last night of prime-time defense, the White House went full Dersh.


ALAN DERSHOWITZ, TRUMP IMPEACHMENT DEFENSE TEAM MEMBER:  I have gone back and read all the relevant historical material, as nonpartisan academics should always do.

The great fallacy of many contemporary scholars and pundits, and with due respect, members of the House of Representatives, is that they fail to understand the deployment of this powerful weapon.

Quid pro quo alone is not a basis for abuse of power. If you don`t like the president`s tweets, find somebody who doesn`t tweet. That would be easy.

My switch in attitude, purely academic, purely nonpartisan.


MELBER:  Purely academic. Everyone can judge for themselves.

But one of the strangest parts of the process has been to see this overlap of Trump defenders and what you might call news nihilists agree and say, this whole thing probably doesn`t matter.

I want to tell you, having watched now a week of this trial, this whole thing does matter. That`s why there`s this pitched battle in the Senate. It`s why Donald Trump pulled out all the stops, adding all of his TV lawyers to his team.

It`s why even Republican hours of Trump are struggling to even land on the position that Mitch McConnell`s demanding or explain where they`re headed. It matters that Donald Trump has joined the small, sad, embarrassing club of presidents who go on trial during their tenure to find out if they can even stay in office.

It matters that he`s now in a club all by himself, as the only elected president to go on trial during his first term.

And you know how it goes. One is the loneliest number that you will ever do. And two can be as bad as one, Trump and Nixon the only presidents to face abuse of power allegations for election misconduct, the case, that they abused power to undermine democracy itself.

So all of this, it matters. And there are signs some of it`s breaking through, from conservatives increasingly noting the damning evidence on air, to our nation`s comics finding ample punchlines that don`t divide the audience, but unite it.


UNIDENTIFIED MALE:  I have convicted people on a lot less evidence than there is of a quid pro quo here.

UNIDENTIFIED MALE:  I guess it`s just constitutional nonsense, really.

TREVOR NOAH, HOST, "THE DAILY SHOW WITH TREVOR NOAH":  I don`t know how Senate Republicans can justify not hearing from Bolton now.

UNIDENTIFIED ACTOR:  Republicans are simply requesting a fair trial, no witnesses, no evidence.

NOAH:  Imagine an eyewitness to a murder wanted to testify, and the judge just refused. And it was just like, Your Honor, I saw this man, and I saw the crime firsthand.

He would be like, no spoilers, no spoilers.


CHRIS WALLACE, HOST, "FOX NEWS SUNDAY":  It wasn`t done by the Justice Department because the Justice Department refused to carry out an investigation.

Get your facts straight.


MELBER:  But how do you get your facts straight in the Senate or the whole country unless you have all the evidence?

Well, we`re going to turn next to House manager and Judiciary Chairman Jerry Nadler, when we`re back in just 30 seconds.


MELBER:  We`re back with news that was breaking as we first came on the air at 6:00 p.m. Eastern, Mitch McConnell reportedly telling colleagues he doesn`t have the votes to block impeachment witnesses.

And take a look. "Washington Post" now also adding to that reporting, "New York Times" telling the same story that first broke in "The Wall Street Journal." 

Tonight, Mitch McConnell telling GOP senators in their closed-door meeting he currently, as of this hour, does not have the votes to block these high- profile, high-stakes witnesses that Democrats want to call.

It is a big development in the story that`s moving fast.

And we have someone in the center of the action, House impeachment manager and Judiciary Committee Chairman Congressman Jerry Nadler.

Thanks for joining me.

REP. JERROLD NADLER (D-NY):  You`re welcome. Good to be here.

MELBER:  Good to have you.

What is your reaction to this reporting now in multiple outlets that Mitch McConnell does not have the votes tonight to block the witnesses you, as House managers, have been seeking?

NADLER:  Well, it`s very good news.

I mean, obviously, if you`re going to have a fair trial, you have to have the witnesses. Any 10-year-old knows that, if you are going to have a trial, you have witnesses, you have documents.

It was a heck of a nerve for Mitch McConnell and others to try to block witnesses, because they knew that these witnesses would condemn the president.

And the fact that now, with the Bolton revelations, McConnell says he doesn`t have to vote -- doesn`t have the votes, is very good news. His attempted cover-up maybe unraveling.

MELBER:  If he still doesn`t get these votes, then, as early as the end of this week, there could be a floor vote to begin a process of calling witnesses.

There`s been so much talk about John Bolton. But, as a House manager, when -- if that process goes there, who are the witnesses you will -- you will - - your side will be seeking?

NADLER:  Well, John Bolton, certainly. What`s his name, Dunleavy, the -- Mick Mulvaney, rather, the president`s chief of staff, some of the other witnesses who we have heard had firsthand information, and John Bolton, certainly, and maybe now John Kelly.


MELBER:  John Kelly, you would want to call, given his remarks about Bolton`s veracity?

NADLER:  Yes, that would seem to indicate that he has knowledge of what Bolton is testifying to.

MELBER:  Very interesting.

Would you be sure that you get up-or-down votes on each of those individually? Or how do you pursue that?

NADLER:  Well, hopefully we will get a vote to permit all witnesses.

And if not, we will seek individual votes. It depends on how the Senate votes.

MELBER:  Have you discussed the idea of calling General Kelly with other managers or senators?

NADLER:  No, it just seems pretty obvious.

MELBER:  Your name, of course, came up on the Senate floor.

Take a listen to Trump lawyer Jay Sekulow here in the trial.


SEKULOW:  I have been critical of manager Nadler`s executive privilege and other nonsense.

Let`s not start calling constitutional rights other nonsense, lumping them together.

Of course, this is from a House of Representatives that actually believes the attorney-client privilege doesn`t apply.


MELBER:  And, in a similar vein, one of the Senate jurors you were going to, as you know, Senator Collins, said this -- quote -- "I was stunned by Congressman Nadler`s approach. If we were in normal debate, we`d strike the words of a senator impugning another senator. She talked about how she wrote a note and she was glad to see the chief justice admonish both sides."

I wanted to give you the chance to respond to all of the above.

NADLER:  Well, the fact is that I was -- what was the first one that -- what was the first criticism?

MELBER:  I can read it, yes.

Mr. Sekulow said -- quote -- "I have been critical of manager Nadler`s executive privilege and other nonsense."

NADLER:  Oh, yes.


NADLER:  Yes. Well, all right.

Well, what I said was that there was certain nonsense about executive privilege, that executive privilege is a limited privilege. The Supreme Court decided in 1973 that executive privilege could not be used to shield criminal conduct.

And anything else to be said about it was nonsense, that -- and, frankly, what the impeachment -- what the president`s people have been saying about all these things is nonsense.

There is no right to shield evidence from a court. There`s no right to shield evidence from the Senate. There is a limited right for the president to get candid information under executive privilege, but that must surrender, as the Nixon case, the Supreme Court said in 1974, that must surrender when there`s an accusation of wrongdoing.

And the fact is that if you took -- if you agreed with what the president is claiming, with what his people are saying about executive privilege and about absolute immunity, then Congress has no right to get any information at all.

This would deny all information to Congress, which, in effect, would leave the executive all-powerful, because Congress cannot act without information.

And the president -- and that`s why we put this in article two of the impeachment inquiry -- the president has asserted the right -- he said, I will deny all subpoenas.

And he has denied all subpoenas, all requests for information. Besides being self-serving, this is an attack on the ability of Congress to function. It`s an assertion that the presidency ought to be a dictatorship.

MELBER:  I`m also curious your view of how the Trump lawyers` arguments on the floor evolved, because you and your colleagues made a full-throated argument that witnesses are essential.

It would -- it would seem, from this new reporting tonight, that Mitch McConnell is struggling with the weight your argument. And, as you know, and our viewers know from watching a lot of this, the first two days, it seemed like they mostly ignored that.

They tried to just pretend it wasn`t there. And then, yet, today, on day three, they seem a little more shook by your argument. And, as we have shown tonight, they tried to sort of come up with some rebuttal to Bolton.

I`m curious, what is your view of that? Do you think they shifted?

NADLER:  My...

MELBER:  Go ahead.

NADLER:  My view is that their attempt to maintain a total cover-up is being undermined by Bolton`s testimony. We have said all along we suspected what Bolton was going to say. They didn`t want to hear it.

And they didn`t want to hear anything that might be critical of the president. it was a total attempt at a cover-up. And I suspect what is happening now is that, in view of Bolton`s public -- the airing -- the public airing of what Bolton has said and presumably would say in testimony, Senator McConnell is unable to hold his own troops behind a total cover-up.

MELBER:  And, lastly and perhaps briefly, I`m just curious.

I have to ask you, Congressman, do you think Ken Starr was a net gain or a net loss for the president`s side?

NADLER:  I don`t know.

I think the argument he was making was so absurd, that it`s hard to credit it. His argument, essentially, was that a private sexual affair is a legitimate subject of impeachment, but undermining the constitutional structure of government, undermining the use of government power to -- the illicit use of government power by the president for private personal gain to try to rig an election is not a subject for impeachment, that trying to cheat on an election, that trying to enlist a foreign government`s help to cheat in an American election, that`s not impeachable, if proven, but private sector sexual affair is impeachable.

It`s absurd in the extreme.

MELBER:  Absurd in the extreme. There you have it.

Congressman Nadler, I appreciate it, as always, you taking all the questions at a busy time for you, sir.

NADLER:  You`re quite welcome.

MELBER:  Thank you, sir.

I want to tell our viewers before we take a quick break, Senate Minority Leader Chuck Schumer will be on "HARDBALL" tonight. It could be quite a newsworthy interview, given all of this breaking news.

That`s "HARDBALL" tonight, 7:00 p.m. Eastern.

When we come back, we have a deeper look at the arguments on both sides with two acclaimed lawyers, including the man who used to run the famed Southern District of New York prosecution office -- when we come back.


MELBER:  Welcome back to THE BEAT.

We`re covering breaking developments here in the Trump Senate trial.

Three outlets since we have come on air now all reporting this blockbuster news that Mitch McConnell is crying, at least for now, uncle, telling fellow Republicans he does not have the critical votes he`s been seeking to block witnesses tonight. That could change, but those are the headlines.

And I`m joined now by former U.S. attorney for the Southern District of New York David Kelley, and a former civil prosecutor in that same office, Maya Wiley.

Nice to see you both.


MELBER:  I want to do something with you that we haven`t always had time to do during the trial, which is actually break out these lawyers` arguments, both of you quite accomplished attorneys to do the assessment.

Let`s begin with Professor Dershowitz discussing his changing views last night.


DERSHOWITZ:  During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered.

I said that. At that time, I had not done the extensive research on that issue, because it was irrelevant to the Clinton case. I have gone back and read all the relevant historical material, as nonpartisan academics should always do, and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type.


MELBER:  David, what`s he doing there? And does that work?

KELLEY:  No, I don`t think so.

Look, you have to look at the context here, whether or not you`re in a court of law or you`re in a bit of a circus. In a circus, it may resonate with some. In a court of law, I think this would be a bit of a losing argument.

WILEY:  It`s a real problem when you make an argument that your expert witness doesn`t agree with.


WILEY:  Their expert witness at trial -- I mean, in the House process, when they were deciding what to charge, John Turley, said, no, abuse of power is impeachable. The question is whether you have enough evidence, which would have been a better argument to make, arguably.

And so, therefore, he was unsupported by his own expert.

MELBER:  Right.

And that would seem to be a problem, which is why Dersh had to go out of -- Dershowitz had to out of his way to even reconcile it.

Someone who did not reconcile their past was Ken Starr.

I want to be clear. We have been discussing tonight how fluid this is, because people who say they know how it`s ending, well, all of a sudden, Mitch McConnell doesn`t have the votes, which would suggest that what happens on the Senate floor matters.

And we have reported on the fact that it didn`t seem that Ken Starr was helpful to the president`s case, particularly if you`re a moderate, potentially swing Republican voter, the Senate voter.

Take a listen to him last night.


KEN STARR, MEMBER OF PRESIDENT TRUMP`S DEFENSE TEAM:  We are living in what I think can happily be described as the age of impeachment.

Like war, impeachment is hell. It divides the country like nothing else. Those of us who lived through the Clinton impeachment understand that in a deep and personal way.


MELBER:  David, do you find that mournful recollection of history by Ken Starr to be persuasive?

KELLEY:  Well, not really.

And I think one of the things, if you`re standing up in a court or advocating a position, a lot depends on your own credibility and the people who are hearing it.

And it`s kind of difficult to listen to him, who promoted a completely political agenda on a much less serious offense, if you will, many years ago to stand up and now act as though we`re in a -- that we`re in a terrible place that the Democrats have brought us.

So the credibility doesn`t really resonate with me.

MELBER:  You mentioned his agenda. And he`s drawing attention to it, right?

And if you look at the Senate, as many votes perhaps established, and then one question remaining about witnesses, it was putting it in everyone`s face that Donald Trump picked someone, perhaps to entertain, or to excite beyond the room, when the people in that room are very close to the history.

We have put something together.

And I want to say in advance we didn`t do this to make Ken Starr look inconsistent. He did that all by himself.


STARR:  Has the House of Representatives, with all due respect, in these two articles of impeachment charged a crime or violation of established law or not?

Whether the president`s actions are in fact grounds for an impeachment or some other sanction is a decision in the sole discretion of the Congress.

The profound danger that a presidential impeachment will be dominated by partisan considerations.

That the president has misused the privileges available to his high office.

Like war, impeachment is hell.

No one is above the law.


MELBER:  Maya?

WILEY:  So, there you have it. That`s all I have to say.

He didn`t do what Alan Dershowitz did. At least Alan Dershowitz explicitly tried to deal with the fact that he had taken the opposite position before standing in the Senate well today -- yesterday.

And what we have here is, in Ken Starr, someone who didn`t do that. I mean, he could have come and said, look, I learned from the Clinton impeachment, I learned from this process, and said, I feel like we went too far, and now I feel like we have to dial it back, and I`m sharing my experience because I did that.

MELBER:  Right.

WILEY:  That would have been much more credible.

What he did was not.

MELBER:  So we looked at a few questionable moments.

I want to show something that seemed more effective by one of the lesser- known, perhaps, lawyers.

And, David, I`m sure, when you were prosecuting big cases in New York, you have seen this, where people will try to concede something for that very reason you mentioned earlier, credibility.

Mr. Ray is one of the first Trump defenders I have seen who just up and out and said, look, we didn`t begin this whole Ukraine plan the best way, but that doesn`t mean it`s an impeachable high crime.

Let`s take a look and take a serious look at that -- this part of the defense.


ROBERT RAY, MEMBER OF PRESIDENT TRUMP`S DEFENSE TEAM:  It would have been better, in attempting to spur action by a foreign government in coordinating law enforcement efforts with our government, to have done so through proper channels.

While the president certainly enjoys the power to do otherwise, there is consequence to that action, as we have now witnessed. After all, that is why we are all here.


MELBER:  How about that, David?

KELLEY:  Kind of curious about what the proper channel would be to withhold money allocated by Congress and to initiate an investigation for political gain against your political opponent.

So, I`m not quite sure what he`s referring to there and what the proper channels would be.

MELBER:  Fair?

WILEY:  Directing your power against a political opponent, that`s -- there would be -- I agree with David, what he said.


MELBER:  I suppose that, to give it its best gloss, he would argue that this whole thing would have been better if Giuliani were not involved.

KELLEY:  I`m baffled by how he -- how and why Giuliani is involved. And I don`t know why -- what`s he doing there?

Is he -- if he`s a president`s personal lawyer, what exactly is his realm of authority to do what he did?

MELBER:  well, and I also want to ask you, because, as I remind viewers, you and Rudy ran the same office. Not many people have that. It`s a big job.

Rudy publicly lobbied to be a part of this Senate trial defense. The president rejected him. What does that say about where he`s at?

KELLEY:  He doesn`t have anything good to say.

I mean, look, if somebody does it -- the same thing with Bolton. If somebody is really trying hard, turning themselves into a pretzel to keep somebody from testifying, you don`t do that for somebody who`s going to help you.

MELBER:  Right.

KELLEY:  And I think that, if Rudy Giuliani, despite what he says in public, were to get on the stand and really be put in the crucible of a courtroom and cross-examined effectively, I think you would see what everybody has seen, that this whole Biden conspiracy thing and the corruption thing is a bunch of hogwash.

In fact, if it wasn`t, why hasn`t the Senate picked up and conducted -- Lindsey Graham, start an investigation of Burisma. He hasn`t done that. They were quick to jump on Benghazi in the House and conduct an investigation.

But all this noise about the Biden corruption, and it`s -- the only person who`s holding that information is Rudy Giuliani? And if it was to be taken seriously, I think Congress would react differently than it has.

MELBER:  Well, it`s interesting when you put it like that.

Notwithstanding the substantive and ethical issues, you`re making a strategic point, which is, with Benghazi, it was committee after committee. They wanted to chase the car without catching it. Here, as you point out, they`re not even chasing the car. They have subpoena power in the committees.

All really interesting points from our two lawyers, David Kelley and Maya Wiley.

Going to fit in a quick break.

And I`m going to tell you, speaking of Giuliani, he just actually has responded to a lot of this Bolton news.

We will bring you that a whole lot more when we come back.


MELBER:  Everyone is either talking about John Bolton or getting nervous about John Bolton over at the White House with this story that`s been dominating tonight, Mitch McConnell saying he doesn`t have the votes to block him right now.

And then comes Rudy Giuliani speaking out about Bolton and what`s alleged in the new book. Take a listen.



So, here`s the only conclusion I can come to. And it`s a harsh one, and I feel very bad about it. He`s a backstabber.

QUESTION:  That`s a serious statement.

GIULIANI:  It`s not serious. It`s true.

If your friend was complaining about you behind your back, and didn`t have the guts to come up to your face and tell you, I think you`re screwing up, Catherine, that`d be a backstabber. That`s classic backstabber.


MELBER:  Classic backstabber. Didn`t have the guts.

It`s my job, of course, to remind everyone the facts you may be familiar with.

President Trump, Rudy Giuliani, John Bolton, Mick Mulvaney, these are all people who have been prevented from going face to face and sharing their testimony. And that could change. If you read Rudy Giuliani one way, maybe he wants that to change, so no one has to do anything behind anyone`s back.

We will be right back with one more thing.


MELBER:  That does it for THE BEAT tonight.

I will see you back here tomorrow at 10:00 a.m. Eastern.

But don`t go anywhere. Senator Chuck Schumer is on "HARDBALL WITH CHRIS MATTHEWS," which is up next.