Trump picks new fight with two SCOTUS TRANSCRIPT: 2/25/20 The Beast w. Ari Melber

Guests: John Flannery, Nicole Argentieri, Tim Miller, Charles Kaiser, Robert Barnett, Mark Thompson

CHUCK TODD, MSNBC HOST: But "THE BEAT" with Ari Melber starts right now.

Good evening, Ari.

ARI MELBER, MSNBC HOST: Good evening, Chuck. Thank you so much.

We have a big, big show tonight.

Debate night for 2020 Democrats. We`re going to get into what`s happening and who is an expert, an actual debate guru, for President Obama, my special guest later.

Donald Trump also now openly condemning two Supreme Court justices by name. We have a special accountability fact-check on all of that tonight.

And a major endorsement for Pete Buttigieg in South Carolina. We`re actually going to go into something really important that gets talked about sometimes less with his candidacy, why so many people find it historic, no matter what happens in this race.

So, as mentioned, we have a lot that I think will be interesting tonight for you.

But we begin with the facts that matter most in this Democratic race, the actual delegate count.

These are the numbers that show who`s ahead, who`s closest to building the lead needed to win the nomination, and how to separate any Washington rhetoric or individual campaign spins from the actual state of the race.

Now, Bernie Sanders is clearly leading by double digits in these delegates. And that`s a gap that can actually widen for Sanders, even if he doesn`t win South Carolina this weekend. As we have been reporting, there are scenarios where another candidate can win on Saturday, and Sanders would still end up closer to the nomination with a larger lead over the other candidates than he is right now in the current lead.

Now, if that was not clear, to people who do this for a living, I can tell you, whether you like it or not, I`m just telling you the facts. It is clearly getting more obvious to a lot of people, including in Washington.

Now, Sanders is not playing coy about this lead. Instead, he`s arguing that now, in contrast to his -- quote -- "entire career," he is seen as the front-runner.

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS (I-VT), PRESIDENTIAL CANDIDATE: Given the fact that I have been in opposition my entire career, and I have taken on every special interest, it is a little bit funny to find myself as the so-called front- runner.

But, look, we are going to enter this debate with the full knowledge that tens of millions of Americans want fundamental change in terms of what`s going on in this country.

(END VIDEO CLIP)

MELBER: Talking about being the front-runner. And leading the race in perception or in these actual delegates will put a target on any candidate.

But this is something else I wanted to talk to you about before we bring in our guests tonight. As recently as last week, a lot of Democrats were focused more on the candidate with zero delegates, Mike Bloomberg, than the candidate beating all the other Democratic candidates, Bernie Sanders.

It tells you something about the limits of insider conventional wisdom that the strategy adopted by so many campaigns as recently as one week ago is suddenly dead and that it proved so shortsighted.

Today, some of the same D.C. insiders and consultants say it`s everyone vs. Bernie Sanders. Obviously, the candidates do have reasons to target Sanders tonight and not be targeted -- I should say, not be distracted by Mike Bloomberg, many see as a make-or-break time for anyone trying to emerge as an alternative to this front-runner.

My point here is not to predict what will or won`t work. Voters will keep making up their own minds. But we should note how limited some of these hot takes and Washington, D.C.-cooked up predictions tend to be.

Now, as for the advice that time is running out and the Sanders campaign is surging, we can also show you tonight new information that suggests how candidates are following what may be the new conventional wisdom, the idea that you have to deal with the person with the most delegates, not the one with the most billions.

Pete Buttigieg, for example, he spent basically a year campaigning for a softer politics of unity. Today, he`s coming out swinging. He argues Bernie Sanders is basically a hype man for the late Cuban dictator Fidel Castro.

(BEGIN VIDEO CLIP)

PETE BUTTIGIEG (D), PRESIDENTIAL CANDIDATE: I respect Senator Sanders. I have enjoyed getting to know him.

But the reality is, the politics he is offering is one that says, if you don`t agree with me 100 percent of the time, you don`t even belong at my side. I don`t want to be explaining why our nominee is encouraging people to look on the bright side of the Castro regime when we`re going into the election of our lives.

(END VIDEO CLIP)

MELBER: Then there`s Joe Biden, who needs a big finish in South Carolina to get in front of Buttigieg, still currently second, and he`s hitting Sanders on health care policy, arguing that back-of-the-napkin math won`t pay for some of Sanders` admittedly costly plans.

And then there`s, of course, former Republican Mayor Mike Bloomberg, Politico reporting he has been hunkered down at the Four Seasons Hotel in Florida`s Disney world, the so-called happiest place on Earth.

Now, it`s unclear if the Bloomberg campaign picked a location because of that high-end Four Seasons Hotel noted in the reporting, or simply because, look, let`s face it, this roughly 40-square-mile theme park is a blissful fantasyland that allows people to get away from it all and engage their more playful sides.

And there are parallels here for Bloomberg candidacy, which has used a spending spree to take off as fast as, well, Space Mountain. And, of course, then, at the first debate, we saw the Bloomberg campaign fall faster than a downhill drop at Splash Mountain.

The larger question, of course, is whether this billionaire Republican mayor can still win the nomination to be the other party`s presidential nominee, which is, when you think about it, a plot as unlikely as the talking toys from "Toy Story," who, of course, have a tribute in the Slinky Dog Dash ride.

All of these, of course, hits for any of the 58 million people a year who love Disney World, as we do.

I want to bring in Eugene Robinson, a Pulitzer Prize-winning columnist at "The Washington Post," and Mark Thompson, host of the "Make It Plain" podcast. We should note he`s moderating the first ever presidential forum in historic Selma, Alabama, this weekend.

Nice to see you both.

EUGENE ROBINSON, MSNBC POLITICAL ANALYST: Good to be here, Ari.

MARK THOMPSON, "MAKE IT PLAIN": Well, thank you.

MELBER: You can understand, if you spend enough money, wanting to take a day at Disney World, can`t you?

THOMPSON: Sure.

MELBER: I mean, it`s a nice place.

THOMPSON: Well, and, but more importantly, I think he probably wants to be isolated and studious and cram, because Elizabeth Warren kind of lit him up in the last debate.

MELBER: Does Mike Bloomberg need this fantasy time, because the reality of that first debate wasn`t any fun?

(LAUGHTER)

THOMPSON: Well, I`m sure it`s just a comfortable place. But I doubt he`s doing a lot of fantasizing or a lot of -- having a lot of fun. I wouldn`t think so.

If he is, he`s probably making a big mistake, because he needs to be prepared for tonight.

MELBER: When you look at what`s shifting, Gene, you are a student and a chronicler of politics in Washington.

Much of what happens there is arcane and intricate and powerful. We need people who understand government to explain it. But much of what the Democratic Party elites have been saying in Washington seems to change week to week.

And now, suddenly, they have woken up to the Sanders lead, which was not the focus of the last debate.

ROBINSON: Duh, you know?

(LAUGHTER)

ROBINSON: They spent the entire debate going here from the guy who has zero delegates, who nobody has voted for, Michael Bloomberg, and completely, almost completely, gave Bernie Sanders the pass. And that was done.

But I`m so reminded of 2016, frankly, on the Republican side, where you had Republican establishment conventional wisdom about how, first of all, Trump would never get off the ground, and then, why, we just need -- if we could only just consolidate all the never-Trumpers into one candidate, and that would stop him, and this and that.

And, meanwhile, he just continued on. And a dynamic that kind of reminds me of that is happening on the Democratic side right now. You saw the dissolution of the Republican establishment in 2016.

And I think the Democratic establishment is not doing too well.

MELBER: Well, and when we talk about the establishment, right, you have to define it.

I explicitly mentioned the campaign consultants who profit off the race who are giving all this advice. Plenty of Democrats have now started working for Mike Bloomberg.

As distinct from the people in offices, because it`s very interesting, Mark. As the Sanders surge has occurred, I`m not here to tell you whether he can beat Trump. I don`t know.

But I am here to tell you what the facts are, so when other people say, well, here`s a new prediction, Trump can`t win, Sanders can`t win, this and that, if it sounds familiar and less than credible, that`s because it is.

So this is interesting reporting I want to ask you about. When Senator Chris Murphy and other Democratic senators who spoke out in public, many under their own names, when Politico is reporting on a new piece, Senate Dems are not -- quote -- "freaking out about Bernie."

And it says more than a dozen senators say Sanders was not the electoral anchor critics make him out to be.

THOMPSON: Well, I`m sure that`s comforting to the Sanders campaign, and it makes some sense.

There is a consultant class and sometimes a pundit class that is yelling the sky is falling. But, honestly, if anybody was that concerned, the so- called establishment or consultant class or what have you, seems to me they would start negotiating some other folk getting out of the race to consolidate votes perhaps.

But that`s not happening. If we look at the so-called moderates -- I guess that would be Klobuchar, Buttigieg, Biden, and Bloomberg -- they`re going to continue to split up the votes. And the longer they stay in the race, the person that some of them most fear, Bernie Sanders, is going to continue to amass delegates.

Now, having said that, Bernie and anybody else would have to win about -- the math says about 55 percent in every race from now on to -- because it`s proportional representation in terms of delegate allocation. So you would have to win 55 percent to get to the 1,991 threshold before the convention.

That being highly unlikely, I`m pretty sure we`re looking at a brokered convention.

MELBER: Well, you`re talking about whether the momentum kicks in behind someone or not. Bloomberg`s spending could clearly affect that.

Both of you talking about whether the lessons of past cycles are being learned or not. And this is something that someone who worked for Jeb Bush, who was a well-known candidate who got beat by Trump, was talking about.

I want to read from this, five lessons from 2016 that Tim Miller argues Democrats should learn.

"For two straight debates, the non-Bernies focused on Mayor Pete, rather than Bernie in Nevada. They did the same thing with Warren disemboweling Mayor Mike and Pete, and Amy continuing their tiff."

Gene.

ROBINSON: Yes, exactly. I mean, that`s what they did in the debates.

There is this idea that, gee, if you could only get it down to Bernie and an anti-Bernie, right, then the anti-Bernie would win the nomination, because there are more votes on that side.

But that doesn`t actually hold up to the data we have. I mean, there are polls -- Morning Consult did a poll asking second choices. Well, the number one second choice of Biden supporters is Bernie Sanders.

The fact is that voters don`t look at these candidates as being precisely placed along this ideological spectrum that those of us who are perhaps closer to politics and have all this experience sort of see them on.

MELBER: Right, and they`re looking for recognizable people to beat Donald Trump, more than finding a point on the scale.

I want to ask you both about one other thing. Take a listen to a colleague of ours from "TIME" magazine, Anand, who has talked a lot quite forcefully about the money and the challenges around a candidate who is probably not like every other candidate, Senator Sanders, and thus challenges some of the larger system that we have.

Take a look.

(BEGIN VIDEO CLIP)

ANAND GIRIDHARADAS, "TIME": We are starting to see that we may be paddling through a bend in the river of history here.

Something is happening in America right now that actually does not fit our mental models. Every single vote Michael Bloomberg hopes to get is because of spending money on ads.

In other words, the enterprise of the Bloomberg campaign, not some side activity of it, the enterprise of it as a whole, is corrupt.

(END VIDEO CLIP)

ROBINSON: Not according to the Supreme Court, not according to our federal election laws.

I mean, he can spend as much money as he wants on his campaign. And, in fact, he has unlimited -- practically unlimited funds. He can spend more than any human being has ever spent on any election in human history. And he may, actually.

I mean, he could still stay in until the bitter end. He`s offering himself as an alternative to Donald Trump, saying, I can beat Donald Trump. I will spend what it takes to beat Donald Trump. I`m not -- I may not be perfect for the Democratic Party, but here I am. I`m that option, and Bernie Sanders is not.

This debate tonight could be fire, between the...

MELBER: Fire or fire emoji?

(LAUGHTER)

ROBINSON: Well, OK.

MELBER: Fire emoji being hot.

(CROSSTALK)

ROBINSON: Yes. Right. It could be fire emoji, OK?

So if that`s higher...

(CROSSTALK)

MELBER: I think it`s higher. I don`t know...

(CROSSTALK)

ROBINSON: Because I sense panic out there about...

(CROSSTALK)

MELBER: Panic about Sanders?

ROBINSON: Well, imagine Bernie wins South Carolina, if he managed to win South Carolina.

And he`s got more momentum going into Super Tuesday. I think everybody would be discomforted by that.

THOMPSON: And I think that the so-called establishment should consider that Bernie Sanders could very well be the nominee, and people are going to have to deal with that.

And it may just very well be the case you can`t -- ads alone can`t do it. Now, as far as Bloomberg beating Trump, what is he going to do in a debate if he could not survive Elizabeth Warren and Democrats a week ago? What`s he going to do with Trump?

In terms of Bernie beating Trump, I think part of Bernie`s popularity may be this and part of his success may be this. Trump is unorthodox and just a shock in terms of what a norm would be. Bernie, to some extent, is the same. Obviously, he`s somewhat unorthodox.

And maybe people actually think it will take two pretty unique and extraordinary individuals to go head to head to resolve this.

ROBINSON: Yes.

But they -- the one thing they have in common, they both inspired and are leading movements.

THOMPSON: Yes.

ROBINSON: Trump led a movement. Bernie has a movement.

And it may not be a majoritarian movement in the Democratic Party. But it`s the only kind of movement out there right now that I see with that sort of passion and commitment. And that can mean a lot.

MELBER: Yes, and that`s really striking coming from you, as mentioned, having witnessed these races before, and what do you do with what`s happened in the past? Keep an open mind to what voters are choosing, because that`s ultimately what democracy is...

ROBINSON: Exactly.

MELBER: ... to state something fairly basic.

Gene Robinson and Mark Thompson, my thanks to both you. Very interesting.

Coming up: the president attacking two Supreme Court justices by name, as big arguments are coming up about his prized and secret tax returns.

Also, there`s a new hearing in the Roger Stone case, the judge going after the Trump administration`s meddling.

We also tonight have something special planned, a closer look at the historic nature of Mayor Pete`s candidacy, something to think about, regardless of what happens this cycle.

And we have an expert who actually played Bernie Sanders himself in debate prep.

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

(COMMERCIAL BREAK)

MELBER: Turning to an important regarding governance.

President Trump openly condemning two Supreme Court justices, Ruth Bader Ginsburg and Sonia Sotomayor. He`s arguing they are unfair to him and should thus recuse or remove themselves from any cases about him.

Of course, you may recall President Trump opposed Jeff Sessions recusing himself from the Mueller probe over a conflict of interest found by his own Justice Department ethics lawyer. So the request is obviously pretty hypocritical on its face.

Now, legal experts also note there isn`t the kind of conflict here that would warrant any recusals.

The whole spat also comes as Donald Trump`s attorney general publicly claimed that Donald Trump`s public tweeting and meddling in that case, at least as a matter of perception, was a problem. The president continuing to make Attorney General Barr`s job harder, you might say.

Stone back in court today seeking a new trial, meanwhile, after getting sentenced to several years in prison.

We should note some context here. Justice Ginsburg did in a way begin this whole feud. She made unusual comments in 2016, calling Donald Trump a faker, among other things. And Justice Ginsburg actually was called out on it. She later walked back the comments and apologized.

So there is something going on between this justice and this president.

What`s wider here, though, is the law and specifically immigration law. Justice Sotomayor recently dissented from a ruling where the majority narrowly let this administration continue to turn away immigrants who would be deemed likely to need any kind of public benefits, say, someone who needed food assistance.

Sotomayor, though, emphasizing that the justices now have quickly embraced something that the Trump administration has been asking them to do, a kind of emergency intervention where they take up lower court rulings and try to protect the administration from basically courts that disagree with them.

That`s all of the context for the president, by the way, doing this overseas in India, saying this:

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Justice Ginsburg should do it, because she went wild during the campaign when I was running. I don`t know who she was for. Perhaps she was for Hillary Clinton, if you can believe it.

Then Justice Sotomayor said what she said yesterday. You know very well what she said yesterday. It was a big story. And I just don`t know how they cannot recuse themselves or anything having to do with Trump or Trump- related.

(END VIDEO CLIP)

MELBER: Now, why is that on his mind? We don`t exactly know. We`re showing you what he said.

But where do these talking points kick around? Take a look.

(BEGIN VIDEO CLIP)

LAURA INGRAHAM, FOX NEWS: When Supreme Court justices take that life- tenured gig, it`s a pretty good one. We expect them to leave politics and partisan bickering, sniping behind.

But that proved too high a bar for liberal Justice Sonia Sotomayor. She issued a dissenting opinion Friday attacking in part her conservative colleagues. She said: "This court is partly to blame for the breakdown in the appellate process."

(END VIDEO CLIP)

MELBER: So, that`s the actual debate, the written back-and-forth in our judicial system. That`s OK. It`s OK for the court to side with the administration. It`s OK for the justices to dissent and explain their reasoning.

That`s how this is all supposed to work.

What is troubling, particularly given the rolling crisis at the Justice Department under Bill Barr and the Stone case and the Flynn case and a lot of other questions, are whether the president is actively undermining the independence of the judiciary.

And, again, why is this all on his mind? Well, remember, there is still a big case about the tax returns he tries to keep secret heading to the Supreme Court.

We`re going to break all of this down, very important stuff, with two great legal minds when we`re back in just 30 seconds.

(COMMERCIAL BREAK)

MELBER: I`m joined now by a former federal prosecutor in the legendary Eastern District of New York, Nicole Argentieri, and former federal prosecutor John Flannery, who worked nearby in the Southern District.

I won`t make you all debate that, although I know there`s plenty of rivalry.

(LAUGHTER)

MELBER: You do more mobsters.

NICOLE ARGENTIERI, FORMER ASSISTANT U.S. ATTORNEY: We`re ready to go.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: I always respected the Eastern District.

We had mobsters in both districts. We had no problem.

MELBER: John, I want to be very clear about what is the history here. Justice Ginsburg did speak out against Trump.

FLANNERY: True.

MELBER: Trump does attack judges.

And then what seems problematic, when you combine it with the larger problems at DOJ, what`s your view on all of this?

FLANNERY: Well, my view is, overall, that we have a president who feels he`s got control of one department, the legislative, and he`s worked for some time to do the same with the Justice Department, even being critical of the Chief Justice Roberts back when.

So -- and judges from the trial court in cases he had and cases that had to do with the policies he`s had.

Now, I think that Justice Ginsburg could express a private opinion and still not be biased in her legal judgment. And there is nothing to indicate to the contrary. And the case with Sotomayor, I think that, if you read the opinion, it`s a statement of what the law should be.

For example, if you`re going to change a law of 20 years, and a court stays it, and literally, tomorrow, the appellate court would be considering whether the stay should be in place or not, when the Supreme Court acts, in the absence of proof of irreparable harm, then they`re making it too easy to uphold stays.

And one of the instances she cited was a capital case.

(CROSSTALK)

MELBER: Let me jump in just to echo what you`re saying, but to be really, really clear.

We`re talking about these emergency measures that any administration could take. But we will show folks a very simple chart that lays it out.

Past administrations in both parties resorted to this far less, Trump going far more often.

But the counterargument, Nicole, if we want to get into it, and sometimes we do around here...

ARGENTIERI: OK.

MELBER: ... is, a lot of judges saying, well, we have a system where local judges can issue a national injunction, and the president`s administration wants to fight that.

What do you think of this whole issue? And what do you think of the propriety of the president on the warpath like that?

ARGENTIERI: I think it`s -- I think the greatest damage the president is doing to the judiciary and the Department of Justice is creating questions about the appearance of impartiality, attacking the judge in the Roger Stone case by saying that she was biased, attacking Justice Ginsburg and Justice Sotomayor by saying they should recuse themselves, that they couldn`t be fair.

Those are really serious allegations that he`s making. And if you look at the Sotomayor opinion, what she actually says -- and she says the court is partly to blame for granting such extraordinary relief.

And it is extraordinary relief that the government is seeking by going to the Supreme Court and seeking an injunction. And I think...

MELBER: Let`s pause on that.

We`re talking about these immigration cases. It`s not as if the court is being hit with a bunch of appeals from the Trump administration on this one -- what I`m calling this emergency basis to defend civil rights or to make sure people can eat or to deal with a pandemic, right?

There seems to be something that is particularly powered here by the agenda of saying, we have got to stop migration.

ARGENTIERI: Well, I think there`s a 20-year -- what she pointed to was that what they were challenging that would create irreparable harm was maintaining a 20-year status quo.

So what has been happening has been the law for 20 years. The administration is trying to change it. How are they really going to claim irreparable harm credibly when what you have is one state -- it going forward in one state?

(CROSSTALK)

MELBER: What you`re saying, in a very substantive, careful way, is, you`re arguing basically that the majority on the court isn`t following the law. They`re just trying to help Trump. Is that it?

ARGENTIERI: I think that`s -- I don`t think that`s what I`m saying.

I think what she is saying is that they`re being too deferential here, and that there are three parts to getting this kind of injunctive relief.

MELBER: Right, but I`m only pressing you because we could get into legal terminology.

ARGENTIERI: Yes. Right.

MELBER: The point isn`t irreparable harm.

ARGENTIERI: Right.

MELBER: Sotomayor is arguing that this is a sweetheart deal because they agree with the goal. Do you think that`s a fair dissent?

ARGENTIERI: I think that`s fair.

And what she points out is that there are death penalty cases where people`s lives are on the line, where many of those conservative justices do not find there would be irreparable harm if the execution went forward.

MELBER: Well, when you put it like that.

So, John?

FLANNERY: Well, that`s exactly where I was going.

And it`s incredible to have a court say...

MELBER: Yes, but you know what? Nicole got there first.

FLANNERY: Well, yes. And she`s smarter than I am working. What can I say?

ARGENTIERI: Eastern District.

(LAUGHTER)

FLANNERY: Or I would like to believe that, because of our prosecutorial training, we can both read an opinion the same way.

MELBER: Sure.

FLANNERY: And we do think it`s irreparable harm that you might die before they made a decision.

But in this case, they`re granting stays when there is no evidence of irreparable harm. And the Seventh Circuit Court of Appeals tomorrow is going to consider this very question.

And they were going to consider the question of whether a stay should be in place or not.

(CROSSTALK)

FLANNERY: So, they`re saying that it`s messing up the legal system.

MELBER: That is, I think, a very clear -- clear-as-day analysis, and people could understand what the implications are.

Then you get into, again, this pattern and practice of public harassment of judges, including in the Stone case, where literally the judge was overseeing -- and we`re going to talk more about it -- but overseeing the Stone sentencing and being threatened, according to the evidence.

But, first, let me play, bigger picture, John, Donald Trump attacking justices and judges over the years.

FLANNERY: Sure.

MELBER: Take a look.

(BEGIN VIDEO CLIP)

TRUMP: I have a judge who is hater of Donald Trump, a hater. He`s a hater. His name is Gonzalo Curiel.

(BOOING)

TRUMP: Well, you go to the Ninth Circuit, and it`s a disgrace. They file it in what`s called the Ninth Circuit. This was an Obama judge.

What Justice Sotomayor said yesterday was really highly inappropriate.

(END VIDEO CLIP)

MELBER: John?

FLANNERY: Well, let`s go to the Justice Sotomayor quote.

It`s very interesting how they have misrepresented what she said in the opinion, that she basically showed a bias, when, in fact, she showed a point of view, a legal point of view. And then they say, well, if she is biased, rather than it`s an adverse opinion that doesn`t go our way, then we can say she should be removed.

In other words, there is a sophistic argument to try to diminish her credibility as a justice. In other words, they`re attacking the institution, just as they attack Congress, just as they attack anybody that contradicts them.

(CROSSTALK)

MELBER: Now, Nicole, sophistic, what is he saying? Did you get that?

ARGENTIERI: I didn`t, really.

MELBER: I didn`t either.

John, what does sophistic mean?

FLANNERY: What it means is, you`re a lying piece of whatever, that you make an argument, you know?

MELBER: Is it from the root of sophistry?

FLANNERY: Somewhat, yes, yes, exactly, that you have a skilled argument that...

(CROSSTALK)

MELBER: You argue well, but you`re full of it. All right, I know what that means.

FLANNERY: Yes. There it is. Now you got it.

MELBER: I could think of other Brooklyn words for that.

Nicole, first time on THE BEAT.

FLANNERY: Can you say them?

(LAUGHTER)

MELBER: Not here.

Nicole, I want to thank you for joining us.

John, stay with me, because...

FLANNERY: Yes, sir.

MELBER: ... you have been following along in the Stone case.

FLANNERY: Right.

MELBER: And, as promised, we wanted to give this update.

Roger Stone`s lawyers were actually in court today. This is days after Stone was already sentenced to 40 months behind bars. But they want a new trial. And they`re arguing that the foreperson, the leader of the jury, was somehow biased.

Two jurors testifying the foreperson today was fair, urging the jury to carefully consider just the evidence. And Judge Jackson also basically taking the president to task for going out and attacking the foreperson.

This is America right now. This is not normal. This judge saying that the president`s attacks on the jury were -- quote -- "antithetical to our justice system."

We could tell you this hearing has ended for the day. We don`t have a ruling.

But, John, this is one more update we did want to get in our coverage and get your view of the meaning of this. As I have said, it is totally aberrant, not normal, an attack on a citizen who plays their civic duty, as required under law, to serve on a jury.

Walk us through all of your thoughts on this.

FLANNERY: Well, my thoughts start with, they attack the judge as well for merely saying that the jurors did a good job. And they tried to remove her as the judge in these post-trial motions just for saying they did a good job.

And she explained she saw them for nine days through jury selection and the trial, and they worked well.

On the specific case of the juror, she pushed back and said, you`re trying to chill a juror, and that`s why she sealed the interviews with the jury, including the foreperson.

The defense says, we didn`t even go to social media to look her up. Well, I -- that`s almost malpractice these days, but let`s take them at their word. And they asked her questions. And there`s not any evidence that what she was asked her what she said on the questionnaire is false.

And I suspect that`s where the judge is going to come down, unless there`s some surprise.

So what is this exercise for? It is to diminish the significance and the discipline and the equity of the court before the nation, so that Stone, who did have a conversation, according to testimony in the trial, about Wikipedia, well, that Stone might be freed somehow by a pardon, by an appeal, or something that would justify the president during this campaign saying, see, no there there.

And that`s the really sad thing. This is about politics, not about justice. And it`s another distortion by Trump, as is his way and is his conduct, somewhat sophistic, you might say.

(LAUGHTER)

MELBER: Well, I appreciate -- first of all, I appreciate a callback always.

But I also appreciate, in all seriousness, the candor and the clarity that you make those observations, because people need to understand this isn`t normal. And I have said before, I will point out that Justice Ginsburg started the war of words.

The president has free speech rights. He can say all kinds of things as a citizen about politics. He can be insulting. He can be, as his supporters like to say, norm-busting. This is about the administration of justice in America and the president using his power to attack and intimidate people who serve on juries.

It`s wrong.

Mr. Flannery, thank you, sir.

FLANNERY: Thank you, sir.

MELBER: We`re going to fit in a break. We have a lot more in tonight`s show.

South Carolina debate coming up. We have a true heavyweight in Democratic politics, a debate guru for past presidents, including Obama.

And, later, Pete Buttigieg scoring an endorsement that is very significant, some say one that would have been hard to believe even a few cycles ago.

We`re going to get into his barrier-breaking campaign as well later tonight.

(COMMERCIAL BREAK)

MELBER: Big campaign news, tonight, Pete Buttigieg scoring a key endorsement in the pivotal state of South Carolina, the state`s top paper, "The State," endorsing Buttigieg as the candidate to take on Trump, noting he could make history as the first openly gay nominee of either major party, also noting there are questions about if he could win in a solidly red state such as South Carolina.

And then let`s read from "The State."

They argue: "The reality is, Buttigieg`s policy centrism is more important than his personal life."

Now, this endorsement in a traditionally culturally conservative state highlights not only the shift on these issues, but the speed. This is something that is really extraordinary that is unfolding before our eyes and that -- and, according to many people, this is a positive -- that hasn`t even been obsessed about in public, in the press, partly because some argue this is how we live now, that we can all be equal, regardless of who we love.

And if that`s a great thing, or the lack of discussion of it might reflect that, then great.

But I want to show you some history here. And it is, let`s be very clear, bipartisan or nonpartisan history, as candidates when running for president have typically discussed these issues and marriage equality, they have not been where the state or many people say they are today.

Consider the history.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, FORMER PRESIDENT OF THE UNITED STATES: I`m not for gay marriage. I think marriage is a sacred institution between a man and a woman.

JOHN KERRY, FORMER U.S. SECRETARY OF STATE: Marriage is between a man and a woman.

UNIDENTIFIED MALE: Do you support civil unions or gay marriage?

SEN. JOHN MCCAIN (R), ARIZONA: I do not. I do not.

I think that they impinge on the status and the sanctity of marriage between man and woman.

BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: I believe that marriage is the union between a man and a woman.

(END VIDEO CLIP)

MELBER: I`m joined now for a special conversation by Tim Miller. He was an adviser to Jeb Bush`s 2016 campaign and has written about the impact of this Buttigieg candidacy. He wrote an article called "The Kiss." And we`re joined by Charles Kaiser, director of Hunter College`s LGBTQ Public Policy Center.

Good evening to both of you.

CHARLES KAISER, DIRECTOR, LGBTQ PUBLIC POLICY CENTER, HUNTER COLLEGE: Good evening, Ari. Nice to be here.

TIM MILLER, THE BULWARK CONTRIBUTOR: Hey, Ari.

MELBER: Great to have you.

Tim, what does it mean to you? Walk us through some of that history we just showed and what you were doing in your life and campaigning and what this means to you.

MILLER: Yes, I didn`t know that intro is coming. You`re getting me verklempt here, Ari.

I was actually working for John McCain when he said that, that clip that you just played. I was working for him in Iowa as his communications director. I was in the closet at the time.

And I was compartmentalizing the things I liked about him and the things that obviously I wasn`t ready to deal with In my own life. Same with Pete Buttigieg, by the way. He was in the closet at that time, too. That`s only a decade ago now, Ari.

You played Barack Obama in 2008. He gave a really moving speech when I was working for John McCain about hope and change, about, yes, we can, but gay marriage wasn`t part of that. Gay marriage wasn`t a hope that people had in 2008.

And so to think about this, Ari, in 2008, both candidates were opposed to gay marriage, same in 2012. Obama changed in 2013. In 2012, a friend of mine, worked in South Carolina, was fired for being gay. That was only six years ago. Pete was in the closet at the time.

Within two cycles of that now, for him to be winning the Iowa caucus, essentially, tied for victory in the Iowa caucus, I think that it`s astounding that we haven`t focused on it more. And I appreciate you having this segment.

And I would just say that you`re right, yes, that is -- that part of the reason is because that`s how we live now. But it`s where we live now in certain parts of the country.

And I know that, after I wrote that article, I heard from probably a half dozen closeted gay young men and women throughout the country for whom their family, their communities haven`t quite turned the corner, and that this really resonated with them.

And I know that Pete has heard from those people as well. And I think it`s important that we recognize that in our bubbles.

MELBER: How did you feel?

You mentioned that, obviously, the choice for someone in your position, as I understand it -- obviously, educate me more if I`m wrong -- would be that, for many -- for many parties, many candidates at that time, the choice was work and not make an issue of it or don`t have that job.

Is that right?

MILLER: Yes.

I mean, it was bad or worse. I don`t want to whitewash it. I mean, obviously, the Republican Party was worse on this than the Democratic Party was. But, on balance, on gay marriage, on don`t ask, don`t tell, their views were the same.

And so a lot of times, we -- I think gay people on both sides of those campaigns had to hide that part of ourselves. I mean, I don`t -- it was something where you had to -- every job I took after 2008, after I came out of the closet, it was something I had to bring up in the interview and say, hey, I`m openly gay. If I`m going to be your spokesperson, some people are going to criticize you for that.

And if that`s the problem with you, no worries. I will just try to go find a different job.

But that`s something that other people didn`t have to go through. And I think that the fact that those kind of conversations, the conversations like I mentioned about the friend of mine who I had to walk through and help him after he got literally fired from his job, which is still legal now, by the way. You can be fired for your job for being gay in a lot of states, including Indiana.

That`s tough. Emotionally trying to compartmentalize that is hard. Looking to people who are role models for how to deal with that, there aren`t that many. And so for all the people that are still experiencing that, having Pete and Chasten out there makes just, I think, a much bigger difference than maybe people realize in the New York, D.C., California world.

MELBER: I`m going to get Charles in here.

But then is it fair to say, do you feel inspired by Pete? You happen to be -- having worked on Republican campaigns, but you feel inspired by Pete?

MILLER: Yes.

I didn`t expect to be kind of, Ari. And I`m not -- I`m not giving anybody a Republican`s kiss of death endorsement in this primary, so I`m not saying I`m supporting him. But I certainly am inspired by him.

And when I wrote that article, I didn`t -- it kind of came to me out of the blue. I was watching -- I was on my Instagram feed kind of going through stories. And I came across a friend of mine who`s a reporter covering Pete who showed an image of him and Chasten kissing.

It was at his announcement speech. And I found myself getting really emotional thinking about it. And I texted it to some friends, who felt the same way, and thought, man, that is just unbelievable that somebody who --, obviously, Chasten has gone through issues in his life. Pete certainly came out late.

This is not something that was comfortable for him. You knew, in that moment, that they had to be self-conscious of this, that they were doing something that a straight candidate doesn`t even think about, kisses their wife at the end of the speech, moves on, kisses their husband at the end of the speech, moves on.

For Pete and Chasten, you knew that that was kind of hanging over them. You can almost -- I don`t know -- right now, I can feel their kind of sweat and nervousness about that, because that`s something that gay people have to go through all the time is, will this PDA be accepted?

MELBER: Right.

MILLER: And he had to do it on the brightest stage, and overcome that, while also running president. It`s amazing.

(CROSSTALK)

MELBER: I hear you on that.

Let me bring in Charles.

Your thoughts?

KAISER: Well, I think it`s a remarkable moment.

And I just -- if you told me that the main newspaper in South Carolina was going to endorse the openly gay candidate for president and say that his centrism was more important than his sexuality, I would have said that was impossible only four years ago.

I can remember, back in 1992, it was a thrill just to have Bill Clinton used the word gay in his acceptance speech when he became the Democratic nominee for president.

And, certainly, the speed with which marriage equality has come about suggests that it is perhaps now possible for an openly gay candidate to become president of the United States.

After all, when Barack Obama was running, none of us thought at the beginning that America was electing a black president. And that magnificent moment happened. And I think a similar magnificent moment could happen with Pete Buttigieg, because...

MELBER: Why do you think it`s hard for people to fully see it, until there are people in their lives, in culture, in politics, on television?

Why does it seem necessary to see it?

KAISER: Well, that`s the whole difference between life now and life when I was growing up.

Gay people were completely invisible. There were no gay characters on television. There were no gay people in politics. When I was 25, you couldn`t imagine being an openly gay lawyer or a doctor or a reporter at "The New York Times," which I was, in the closet at "The New York Times" in 1975.

So the fact that we are now so visible is what has made so much of this progress possible.

And I want to say that Pete`s success is especially important at this moment, when gay rights, LGBT rights are under attack by this administration as never before.

ProPublica reported last week there were 31 different attacks on gay rights. And, of course, this is the administration whose solicitor general argued before the Supreme Court in October of last year that every corporation should have the right to fire anyone just because they`re gay.

MELBER: Right.

KAISER: An outrageous position.

MELBER: And both of you hitting that, which is where this comes back to regular people`s lives.

This is personal. No one has an obligation to share the personal.

But, Tim and Charles, I do appreciate both of you doing that with us tonight.

Thank you, Tim.

MILLER: Thanks, Ari. Happy to do it.

MELBER: Yes, sir.

KAISER: Thank you very much.

MELBER: And we will have you both back. Thank you.

We have a lot more. We will be right back.

(COMMERCIAL BREAK)

MELBER: Tonight is the Democratic debate.

And we have the number one expert on Democratic debates in the country. Robert Barnett is a celebrated partner at Williams Connolly. He`s the foremost debate expert in the nation for Democrats, advised 10 presidential campaigns, a key role in debate prep in 10 of the last 11 cycles.

He`s played the role of debate sparring partners like Bush, Cheney and, yes, Bernie Sanders, a counselor to Presidents Obama and Clinton and more.

I fit it in, sir. Thanks for being here.

ROBERT BARNETT, FORMER OBAMA CAMPAIGN ADVISER: Nice to be with you, again, Ari. Thanks for having me.

MELBER: What`s the key to tonight`s debate?

BARNETT: I think that you`re going to see obviously some shelling of Bernie Sanders. That`s predictable.

It can take many forms, electability, down-ticket impact, ability to pay for your programs, Fidel Castro. The list goes on and on.

I think you`re also going to see a continuation of the incoming to Mayor Bloomberg, who still remains, to the more moderate lane, the threat to coalesce.

MELBER: So, let`s take each in a row.

You mentioned all eyes on Bernie Sanders. Obviously, we have that on our screen. That`s, as you know, a Tupac reference, all eyes on me, all eyes on B.

But Sanders is someone you played. What did you learn about his strengths and weaknesses doing that?

BARNETT: I found -- I have played, as you mentioned in the introduction, a lot of Republicans, a lot of Democrats in these rehearsals over 10 campaigns.

He was, interestingly, Ari, the easiest one to play. Why? Because he always came back to his talking points. He will get a question. He will give you a couple sentences, and then he will go back to corporate corruption and health care as a universal right and the pharma and oil companies.

And it`s pretty predictable. And it`s been successful for him this time around.

MELBER: Interesting to hear you say that. It`s been successful.

Now, I promise we would get to Bloomberg. Here is someone who is a Bloomberg supporter discussing the last debate and tonight`s. Take a listen.

(BEGIN VIDEO CLIP)

REP. GREGORY MEEKS (D-NY): When you had over 60 people attacking him, it was a poor response. He`s got to defend himself.

I think that you will see a 180-degree shift tonight. I can recall that the first debate that Barack Obama had with Mitt Romney, they didn`t say it was a good debate. But the second debate was different.

(END VIDEO CLIP)

MELBER: Do you buy that rebound argument?

BARNETT: I think that Mayor Bloomberg tonight, if I may be presumptuous and suggest, he will probably do the things that he should have done in the first debate.

They are three. Number one, he`s got an amazing story to tell. And those ads have been omnipresent, but I think he should try to find a way to spend a little time telling people his story.

Second, I think he`s got to answer the lingering questions. We know what they are, business with China, the NDAs, stop and frisk. He`s got to have crisp and maybe even self-deprecatory answers to those things.

And the third thing he`s got to do is deliver his attacks. I`m sure they will be aimed at Bernie Sanders, because he`s hoping that the moderate wing will coalesce around him and make it between him and Bernie Sanders.

So, I think introduce, answer and attack are the things that the mayor should be doing tonight.

MELBER: And, briefly, is it harder to attack Bernie Sanders when some voters in the primary feel he`s just offering more of what other Democrats say they`re for?

BARNETT: I think that there`s a lot of risk inherent in attacking Bernie Sanders.

And, really, this whole process is a production studio for Donald Trump`s ultimate commercials, let me say.

I think that if you attack Bernie Sanders, he could end up being the nominee, so it`ll inure to the detriment of the ultimate ticket.

Second, there are a lot of Bernie supporters out there -- and we saw this with Hillary in 2016 -- who don`t take that well and who conduct themselves in a way that, to his credit, he`s condemned, but still goes on.

MELBER: Yes.

Such a perfect guest for tonight. Robert Barnett, thank you, as always. We will be coming back to you.

And we will be right back.

(COMMERCIAL BREAK)

MELBER: Something special tomorrow.

We`re going to the Red Rooster in Harlem, talking to local leaders and primary voters on 2020, power and diversity.

And if you don`t know whether you will be near a TV tomorrow night, you can always just DVR THE BEAT right now on your remote, press the cable home page, search Melber, and press DVR this show. Then you won`t miss tomorrow`s special or any other episodes of THE BEAT.

That does it for us.

"HARDBALL" starts now.

  THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END