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New Pressure on Bill Barr TRANSCRIPT: 5/13/20, The Beat w/ Ari Melber

Guests: Jerry Nadler, Sean Penn, Nick Akerman, William Haseltine, Jared Polis, Christie Todd Whitman

ARI MELBER, MSNBC HOST: Welcome to THE BEAT. I`m Ari Melber.

And we have a packed show tonight, the president colliding with his own top health officials again, breaking with Dr. Fauci. These are new comments. They`re getting Trump in some hot water, but they`re important because we want you to have the medical facts.

Also, brand-new pressure on Attorney General Barr, accused of undermining the rule of law to help more Trump associates to undermine the most serious consequences of the Mueller probe. It`s a story that any night would be a big deal. Even in this pandemic, it`s a big deal.

And the most powerful Democrat on the entire issue in Washington, House Judiciary Chairman Jerry Nadler, he will weigh in, only here live on THE BEAT tonight.

We`re looking forward to what we think could be a newsworthy conversation.

Later tonight, we take a turn as we often have done during this climate. We talk to people who are affected. Everyone`s affected in different ways.

And actor Sean Penn, who`s been on THE BEAT before and is an interesting guest, to be sure, he is putting his money down now to try to help COVID testing. He`s here also live tonight later in the hour.

But we begin with the top story, a barrage of contradictions, mixed messages and more chaos from inside the Trump administration`s coronavirus response.

This deals with multiple topics that matter, everything from the facts and the medical issues in the reopening. Whatever your policy views of it, do they even get the medical science right? As well as new wrangling over the very sad and tragic death toll and counting up those numbers accurately.

So, let me get into it, President Trump contradicting Fauci, who in his testimony was cautious about reopening schools this fall without a vaccine.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Look, he wants to play all sides of the equation. We`re opening our country. People want it open. The schools are going to be open.

I was surprised by his answer, actually, because, you know, it`s just -- to me, it`s not an acceptable answer.


MELBER: Not an acceptable answer. Of course, what does acceptable mean? We`re about to get into it.

Do you mean scientifically, medically acceptable or something else?

And when the president says there the people want it, well, we have a fact- check on that coming up as well.

This is the president sowing confusion about the basic guidance for, yes, what our nation`s children are exposed to. And he is, of course, breaking with the nation`s top infectious disease expert.

Also new reports the task members falling in line with Trump`s claim that the death toll may be estimated as too high, and there is a push on the CDC to actually change how it calculates what up to now has been the way they look at how many Americans are dying in this pandemic.

It also contradicts what Fauci has said, that, if anything -- and this, again, is the doctor`s view, this was in testimony to Congress from home -- he said, if anything, the death toll, numerically, scientifically, is probably higher than these numerical reports that I just told you the president wants artificially or potentially misleadingly lowered.

Fauci, meanwhile, getting battered for all of this on Donald Trump`s favorite -- his words, not mine -- his favorite TV outlet. Take a look.


SEAN HANNITY, FOX NEWS: Dr. Anthony Fauci also seems to favor what the Democrats want, and that is massive restrictions with no end in sight.

DR. ANTHONY FAUCI, NIAID DIRECTOR: There is a real risk that you will trigger an outbreak that you may not be able to control.

LAURA INGRAHAM, FOX NEWS: With all due respect to Dr. Fauci`s expertise, no one elected him to anything.

TUCKER CARLSON, FOX NEWS: Tony Fauci has not been elected to anything.

FAUCI: I have never made myself out to be the end-all and only voice in this.

HANNITY: He wants us locked up indefinitely.

FAUCI: I don`t give advice about anything other than public health.

CARLSON: Is Tony Fauci right about the science? Do we have any particular reason to think he is right?

FAUCI: I`m a scientist, a physician, and a public account official. I give advice according to the best scientific evidence.


MELBER: There is a little bit of a tell in this new round of criticism. Just think about it.

Have you ever sat across from your doctor or your family`s doctor or your kid`s doctor and, after getting information from the doctor, whether you liked it or not, whether you wanted a second opinion or not, have you ever looked at your doctor in the face and said, hey, nobody elected you to anything?

It`s irrelevant to the question on the table, which is, what do the doctors and medical experts tell us? Then the government, if it follows those facts, makes decisions.

The doctors aren`t supposed to be elected to anything. Indeed, that`s the whole point. They`re the doctors. I know, obvious. Why should we even have to say it? But we do say things in response to what`s out there, so that everyone can take a step back from the rhetoric and remind themselves, right, the scientists and doctors aren`t supposed to be politicians.

Now, beyond that obvious sort of miniature fact-check, if you want to call it that, how is this all playing?

Well, I can tell you tonight there are limits to rhetoric, at least for most Americans, because the vast majority of people are taking the scientists` word for it. Indeed, a supermajority of the public, 66 percent, says that, based on what they have heard, learned and thought, it will take until July or longer to be safe to go to public gatherings.

And a lot of other polling shows people want obviously to wait until it`s safe, if we can.

We begin with the former governor of New Jersey, Christine Todd Whitman. She led the EPA under the George W. Bush administration and has exactly experience in this intersection of science and government policy, and infectious disease expert Dr. William Haseltine.

Thanks to both of you for starting off our broadcast tonight.


MELBER: Professor Haseltine, you have worked on many things. Can we begin with a quick joke about your expertise?



MELBER:  Who elected you? Who elected you?


HASELTINE: I have heard every joke about me.


MELBER: Who elected you to anything? And should we listen to you just because of your work doing a Harvard-level Ph.D, teaching and research on genomes and other things?

Should we listen to you if you`re not a politician?

HASELTINE: I`d be happy to have you listen to me. And I do have a lot of experience with infectious disease, developing drugs, and working around the world in improving health systems.

MELBER: Well, having cleared the air on that, sir, your response to the debate as just laid out, including the president`s comments about reopening the schools and the expertise to make those decisions, as well as public gatherings?

HASELTINE: I think the -- I will be presumptuous enough to say what I think a politician`s job is. It is to protect us.

My job and people like me have the job to help them do that job. It`s clear that there is a killer in our midst. It kills old people. It kills people in their middle ages, and now, tragically, we know it kills kids too. That`s the first thing to say.

Until that killer is reduced and practically not at all in our midst, it`s not safe to go out in big groups. You have got to be very careful. The first thing is to protect yourself with masks and other kinds of behavior. The second rule is for our health service to do whatever they can to identify those who are sick, to contact trace those, and to make sure those people aren`t mixing in the population.

When all of those conditions are present -- and almost everybody you will talk to in public health and many in government will say the same thing. Until those conditions are met, it`s not safe to go out in big groups.

Now, are there some parts of the country where they are doing better than others? Yes, there are. But even in those country -- parts of the country, you to remember, this infection that has now infected over four million people in the world started with one person, one person.

One person can infect the world. One person can infect the country. One person can infect the city. And one person can infect your home. That`s something that we should have stuck in our mind as we go out into the streets and try to open our schools and our businesses.

MELBER: All important to hear.

Governor Whitman, your view on all of the above and this reported pressure by the Trump administration on the CDC to potentially adjust the death toll?

WHITMAN: Well, unfortunately, I`m not surprised by that, because it`s clear the president wants to get over this in everybody`s minds, so that he can concentrate on opening the economy, which isn`t going to happen if we have a resurgence of this disease.

And it`s -- everything we know, every day, as scientists learn more about it, we find more ways that it attacks the body. This is not just a respiratory disease. This is not the flu. This is something much more serious, and it can have long-term consequences.

So we need to be really careful. It`s not -- to say he doesn`t like the answer that Dr. Fauci is giving? Well, guess what? Dr. Fauci is not giving answers to have them like him. He is giving them based on the best science that he has available, and he is getting it from a host of different scientists and doctors.

He is just one person. He says that. He wasn`t elected anything. Yes, it is going to be up to the governors and the mayors -- and, well, I don`t think the president ever will really take it seriously -- but for them to base their decision-making on what the scientists are telling them to keep their people safe, because it`s not going to rebuild the economy if we suddenly open up, and we have a whole host of more people who die.

The whole issue of how do you count the deaths, that`s a problematic one, because you can read those numbers two different ways. You could say, well, we know there are a lot of people that haven`t been identified as having COVID-19 who we think may have who have died, but does that mean that the death toll is a lot less, because you have more people who haven`t been tested and didn`t die?

I`m sorry, the other way around. They didn`t die.

And then you have people who did die who they now say, well, that could have been due to COVID, be you`re not 100 percent sure. So, that, I understand about being a little bit careful with those numbers, but good lord, those numbers are big enough any way. We`re up to, what, over 80,000 Americans who have died from this.

We don`t need to get into the hundreds maybe one way or another. It`s a serious thing. It`s affecting all of us. And we all want this to end. I mean, it`s hard to sit across from -- as I did last night from my children. I couldn`t touch them, couldn`t good within six feet of them.

I`m never going to get that close to my grandchildren.

MELBER: Right.

WHITMAN: And that`s hard for everybody, much less those who are losing their jobs and their homes and their livelihood.

So we all understand that. But this is something we have got to take seriously.

MELBER: Yes. You mentioned that exchange, the 80,000, briefly.

I want to play for viewers another -- this was another important moment in the hearing that has triggered the president. This was the exchange with Senator Sanders and Dr. Fauci.


SEN. BERNIE SANDERS (I-VT), PRESIDENTIAL CANDIDATE: The official statistic, Dr. Fauci, is that 80,000 Americans have died from the pandemic. There are some epidemiologists who suggest the number may be 50 percent higher than that. What do you think?

FAUCI: I`m not sure, Senator Sanders, if it`s going to be 50 percent higher, but most of us feel that the number of deaths are likely higher than that number.


MELBER: Higher than that number. I wanted to play that, so our viewers have that full context.

Our experts stay with us.

The governor was just mentioning that governors do make these calls in our system. That`s certainly the case.

Governor Jared Polis, a Democrat of Colorado, joins us now. We should mention he met with the president at the White House today. They have had policy differences, but everyone trying to get together and make it work.

Let`s start with what we see on camera there. You were using a mask, unlike some have in these meetings, for part of the meeting. And then you also had removed it at one point.

Anything you can share with us from that meeting? Do you think the president is improving at all in this learning curve?

GOV. JARED POLIS (D-CO): Well, unlike most environments, Ari, we were all tested before we went into the White House.

And so we took the 20-minute test. I came back negative. We were in there. So we were more secure. When I`m out in public in Colorado, I wear a mask at all times. I encourage everybody to do the same.


POLIS: We had part of the meeting in public, and that was reported on. And then we went to a private meeting for another 20, 30 minutes.

And I really wanted to update the president what`s going on in the real world, how he can be a better partner for the states and supply us with some of the things we need in terms of masks and tests.

MELBER: Yes, understood.

We have just mentioned Dr. Fauci discussing 80,000 deaths in the United States, roughly over 1,000, exactly 1,009, in the latest count, in your state. And you are on the front lines of this.

One of the things that has been discussed is, do you reopen partially and safely, or what do you do when you try to do that and people don`t follow the rules? I wanted to mention just a local story we have seen.

This is the case count in Colorado there.

But there was a Castle Rock, Colorado, restaurant that began to reopen the way these rules have worked. But we have some video that shows then you had activities that basically, obviously, you see here were not following the rules. Anyone can see that here.

This looks like this footage could be from any time last year, close together and no masks.

What did you do about it? And what can we learn about the right way to reopen?

POLIS: Yes, so, in that example, the license of that restaurant to operate has been suspended indefinitely, at least for 30 days.

We have had restaurants open this entire period, mostly for takeout, for delivery. Now in parts of the state, there`s limited in-dining capacity. But it`s very important. Just like in good times, Ari, we always worry about hepatitis outbreaks at restaurants. Right?

So they have health guidelines. They can`t just have rats in their kitchen and people without washing their hands. There is stuff in good times. That`s even amplified more in this time.

So we`re very serious about making sure that guidelines are workable for small businesses, so they can get by, they can provide a critical customer service and value. At the same time, they have to do it in a new and safer way that`s consistent with protecting the public health.

MELBER: So, is your experience on the ground there that this is viable, that establishments will continue to improve, or that is really an open question?

Because it`s not a binary in black and white. And I think some of the complaints that have come out of the White House and its sympathizers are basically attacking the straw man, that, well, we`d have to stay shut forever, and we can`t, so let`s just open like normal.

But your state and others are trying to experiment with, well, what does it look like if, yes, people take a little more risk by going out, but follow all these rules? Is that viable?

POLIS: Yes, it`s really finding out how we can live in this world with the virus.

We expect the virus to be here, Ari, until there is a vaccine or a cure. It could be many months, potentially years.

And so we have to learn to live in a way where we enshrine that social distancing. How do we do as much as possible six feet apart, wearing masks in public? We actually require it in all stores and restaurants in the state of Colorado. The employees have to wear those masks.

For customers, some of the municipalities do, and some of them don`t. But whether they do or don`t, everybody should wear a mask in public. So, the more that people are using their individual responsibility in a good way to protect themselves and their family members, the more we can continue in this direction of being able to make sure that there is more economic opportunities in a safe way.

MELBER: Understood.

Governor Polis, working with people in his state and meeting with the president today, thank you very much.

I did want to give the -- Governor Whitman one final response, which was just the downward pressure on science. How do you push back in the government? How should that be addressed?

WHITMAN: Well, I mean, it`s difficult now, because this administration has been denigrating science and scientists from the very beginning, and the administration has lost a lot of the scientists with the institutional knowledge.

What you have to do is get the best available advice that you think you can rely on as a governor. You listen to those who tell you what you don`t want to hear, as well as those who tell you what you do want to hear, and see if you can figure out, where is the preponderance of evidence?

And that`s what you go with. And as the governor just said, we can do this sensibly. And the really tragic thing is, the CDC apparently has a very detailed way to open things up and to open restaurants, for instance, safely. That should be out there. Everybody should be working off that same song sheet, so that we have some consistency and people can feel some level of comfort.

MELBER: Copy, all of that important, Governor Whitman and Dr./Professor Haseltine, thanks to both of you.

Coming up: There are major questions about Trump aides suddenly getting all kinds of sweetheart deals, including getting out of prison early.

Well, the chairman of the Judiciary Committee who has constitutional oversight over these very issues, Jerry Nadler, is here live. That`s coming up.

Also, former Watergate prosecutor Nick Akerman, who we have had many times with his insights on these issues, he may be directly involved in what comes next in the Flynn case. He joins us.

And, later, Oscar-winning actor Sean Penn is here tonight. He has a nonprofit that`s trying to support testing of those who need it.

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


MELBER: Major news stemming from the Mueller probe right now.

The most high-ranking Trump official to go to prison, Donald Trump`s campaign chair, Paul Manafort, is now walking out of prison, even though he had 70 percent of his prison time left to serve.

Manafort released and heading into his own home quarantine. This is a very lenient treatment for a man convicted of serious felonies and accused of lying to the feds after striking a cooperation deal.

The Trump administration says Manafort was released over the coronavirus, and that has been a problem in many prisons. But there are reports saying there are zero, not a single case of the virus at the prison where Manafort served, raising suspicions, especially since all this comes within days of the Justice Department trying to drop the prosecution of Trump`s adviser Mike Flynn, even though he already plead guilty also to Bob Mueller`s prosecutors.

In fact, we`re hearing publicly from many nonpartisan Justice Department veterans, saying this is wrong and that Trump`s allies are clearly getting a pass from the attorney general, who also intervened, infamously, to help Trump adviser Roger Stone, overruling the DOJ`s own career prosecutors.

And that led those career prosecutors, some of them with basically ties and veterans of the Mueller probe, to withdraw completely in protest, publicly saying what we almost never hear, which is that the Justice Department was out of control.

Now one of them speaking out, saying Barr is running an operation infected by politics that will do lasting damage to the institution.

Now, Barr has faced so much heat about all of this that he was actually scheduled to try to answer some of it under oath. He was pressed into doing that for planned high-stakes testimony facing Congress.

Now, if you follow these stories, do you remember that testimony that he agreed to do? Do you remember Bill Barr sitting there answering and finally explaining his view under oath of what exactly went down in this highly suspicious situation with the Roger Stone case?

It was back in March that it was scheduled, but, no, you may not remember it, because nobody remembers, because it didn`t happen. As with so many other things that have been adjusted, even if they`re important, because of the coronavirus pandemic, it was rescheduled.

The Judiciary chairman saying it would be basically rescheduled, understandably, as the crisis was breaking -- quote -- "when the crisis abates."

Now Barr facing a new wave of criticism for asking a judge to drop the Flynn case, even though he pled guilty, as mentioned, to the FBI for lying to the FBI. Barr saying bluntly he doesn`t think there was a crime, even though Mike Flynn publicly admitted to one.

I cannot underscore for you enough how rare it is to have prosecutors who prosecute for a living win, meaning they win the guilty plea, and then all of the sudden out of the blue say, we don`t want to win. We want to lose.

This almost never happens, and it`s happening in the case of a person who, of course, the president has personally tweeted and requested for this kind of sweetheart treatment; 2,000 DOJ alumni underscore that point. They`re calling on Barr not just to back off what he did here, but to resign over the whole thing.

Meanwhile, former President Obama saying Barr appears to be putting the rule of law at risk, in a reference to a lot of these recent developments.

Now new calls for Bill Barr to answer to all of this together and to testify to Congress, so that this can be done and dealt with under oath, where lying is, yes, a crime.

There`s also calls for the inspector general of the Justice Department to come in and investigate -- quote -- "The American people deserve to know the full extent of the politicization of the Department of Justice," according to a new round of letters.

So, we are going to get into all of this with the powerful judiciary chairman, Jerry Nadler, when we are back in 30 seconds.


MELBER: I`m joined now by Congressman Jerry Nadler, chairman of the Judiciary Committee.

Thank you for joining me.

First, your reaction to the release of Paul Manafort from prison?

REP. JERROLD NADLER (D-NY): Well, it`s highly suspicious. It seems to be another step in the politicization of the Justice Department, where the president`s friends, the people the president supports, are treated one way, and everybody else is treated the other way, just another example, like the outrageous decision to drop the prosecution of Michael Flynn after he stood up in court and swore under oath that he was in fact guilty.

This is unprecedented, and we have a real problem with the Justice Department being subverted and politicized to be the personal agent of the president, instead of the Department of Justice of the United States.

MELBER: We reported the history of Bill Barr and this committee you run.

Are there any plans to have Mr. Barr come back in to address all of this?

NADLER: Well, yes.

He was -- he had agreed to come in and testify before the committee on March 31, as you pointed out, and that was put off. We have been in communication with them.

And now that the District of Columbia has expanded the stay-at-home order until June 8, we are saying that we would expect to see Barr in front of our committee on June 9, the very next day.

MELBER: Well, that`s new. Is that something you have reason to believe he will agree to?

NADLER: Well, he hasn`t agreed to it yet, but we will do what we have to do, whether that`s a subpoena or whether that`s deciding the Department of Justice doesn`t really need all the appropriations it`s getting, or the office of attorney general doesn`t need its appropriations.

We cannot have a situation where the attorney general just thumbs his nose and the administration holds Congress in contempt.

MELBER: Very interesting.

So, your view is, as a practical matter, Washington formally reopens there June 8, and you`re demanding Barr come back on this effectively overdue hearing on June 9. And if he doesn`t, you`re prepared to use the power of the purse or subpoena to make it happen?

NADLER: We`re prepared to do whatever we have to do. We will consider all those methods.

MELBER: Understood.

Let me remind viewers -- you know the issues well, of course -- what happens when you keep score of some of the more serious convictions from the Mueller probe.

I want to put up on the screen some of the top convicted Trump advisers. Manafort, as mentioned, was incarcerated. Now he is effectively released on home confinement or call it home quarantine. Mike Flynn had pled guilty, and now there is an effort to have him drop the case.

Interestingly, Michael Cohen was initially supposed to get home confinement. His prison reportedly had much more of a coronavirus outbreak than Manafort`s, where it was zero, and that has been basically interfered with at this point. He remains incarcerated.

Mr. Chairman, do you view this as an active set of steps to use the Justice Department and the Bureau of Prisons to reward people who were effectively loyal to Trump and also to punish those who were not?

NADLER: Clearly -- that is clearly the case. And you see this in exactly what you just pointed out about Manafort on the one hand, Cohen on the other hand, Flynn, the attempt, to reduce the sentence of Roger Stone, step after step after step to make the Justice Department not a Department of Justice of the United States, but simply a handmaiden of the president.

And the president says so. The president comes out and says, we`re going to look at the crimes committed by the investigators. We`re going to investigate other things.

That`s why we have to have Barr in front of us on the 9th to get to the bottom, that they are subverting the Department of Justice into a personal agent of the president and subverting justice.

And that`s completely contrary to the interests of justice in the United States. We cannot have a Department of Justice that it is not impartial and that serves the personal interests of the president, and not the interests of justice.

MELBER: Will you seek to hear from any of these prosecutors as well?

NADLER: We`re in discussion with a number of individuals, and that may very well happen.

MELBER: What do you say to people who watched the impeachment probe, where you were a House manager, watched the claims made there -- and we have reported those claims by some of the very same lawyers made in the Supreme Court this week, an out-in-the-open, an out-loud argument that laws do not apply to the president, the constitutional and congressional oversight doesn`t apply?

You add them all together, it can sound sometimes like the sitting president has people saying that he is above the law, and thus we`re not really in a lawful democracy anymore.

But there are people that I`m sure you know, Chairman, who say, well, maybe they`re just getting away with it all. What is your response to that larger concern?

NADLER: Well, that is a very, very large concern for all of us.

This president and Attorney General Barr actively aiding him is making the arguments that the president is above the law, he cannot be prosecuted criminally. And they argued in court the other day that he cannot be even investigated in a criminal suit dealing with something that has nothing do with his being president.

They are arguing that the president is above the law and that he is subject to no restrictions. This is exactly what the framers went against. They didn`t want George III. They wanted a president, not a king.

He is arguing he`s a president. And Attorney General Barr is trying to make sure he is a king, not a president. And this is intolerable to democracy in this country.

MELBER: And finally, sir, let me play for you Mr. Barr in his own words.

You made some news just now, saying the lengths you`re going to go to, to make sure he testifies June 9, the day D.C. is back fully open.

Here he was during both the Mueller probe and recently. Take a listen.


QUESTION: If Bill Barr was your first attorney general, would there have been a Mueller probe and Russia hoax?

TRUMP: No, there wouldn`t be. He would have stopped it immediately.

WILLIAM BARR, U.S. ATTORNEY GENERAL NOMINEE: The president was frustrated and angered by his sincere belief that the investigation was undermining his presidency.

I think the president did the right thing in removing Atkinson.

I think the president has every right to be frustrated, because I think what happened to him was one of the greatest travesties in American history.


MELBER: What is your response to Mr. Barr`s defense that the president`s personal or emotional feelings about something can justify actions which you and your committee have identified as potentially unconstitutional?

NADLER: Well, the president`s emotional responses cannot justify illegal or unconstitutional acts, obviously, if we are a nation of laws.

And here you have a perfect illustration. The president, on the one hand, and Attorney General Barr on the one hand, are making sure that the president`s friends, Roger Stone tries to get a lesser sentence, Flynn doesn`t get prosecuted, even though he pleaded guilty on the one hand, but anyone who is honest, like Atkinson, the inspector general, who simply did his job, mandated by law, he is punished, he is fired.

The people who were witnesses in the impeachment hearings, Vindman and Sondland, even`s Vindman`s brother, other people, they were all fired. And someone who testified against the president, like Roy -- like Cohn, like...

MELBER: Michael Cohen.

NADLER: ... Cohen gets -- I called him -- what is it? Yes, Roy Cohn.

He is still in jail.


MELBER: You`re referring to Michael Cohen in jail, although Roy Cohn was the president`s former lawyer.


MELBER: So, we`re on a slight delay.


MELBER: I was just saying, Chairman, it`s an understandable overlap.

Go ahead, sir.

NADLER: I said he committed the unpardonable sin of telling the truth afterwards, a truth that wasn`t convenient to the president.

So you have a pattern here of the Department of Justice under Barr being used to punish the president`s enemies or just honest people who testify about things, and to try to protect anyone who defends the president or is the president`s friends, and in unprecedented ways.

We have never seen a situation before where someone who has pleaded guilty, who stood up in a court of law and swore under oath that he was, in fact, guilty, where then try to drop the charges.

This is unheard of. It is an outrageous miscarriage of justice. And it`s a subversion of the rule of law. And, that, we cannot have in this country.

MELBER: Understood.

And interesting, the news you made tonight, and we will be watching, obviously, leading up to what happens with Mr. Barr and your committee.

I appreciate you coming on. I hope you will come back, Chairman Nadler.

NADLER: Thank you for having me.

MELBER: Thank you, sir.

And when we come back, Watergate prosecutor Nick Akerman -- right after this.


MELBER: We have had major news in the Mueller case of Mike Flynn.

I`m joined now by former Watergate prosecutor Nick Akerman, an expert for us, and we should note he is actually one of 16 former Watergate prosecutors who is trying to weigh into this case, writing a formal letter to the Michael Flynn judge.

And it says -- quote -- "When a court accepts a plea agreement, it enters a judgment of conviction, which in turn carries immediate sentencing implications," arguing, there is more to be done here than what Mr. Barr says should just go away.

Nick, good to see you again. Please explain what you are arguing in this letter and what would happen if you were allowed to intercede and your side won.

NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Well, essentially, what we`re saying to the court is this is not automatic.

Just because the Department of Justice enters a motion to withdraw the entire case doesn`t mean that the judge should go along with it. This is a situation that, once a defendant pleads guilty in a case, it then does go automatically to sentencing, and once it goes to sentencing, it`s really within the bailiwick of the district court judge.

It`s outside of the executive and then into the judiciary. And what we`re saying is, this should not be automatic, that the judge should look at this very carefully, understand the reasons why the Department of Justice asked for this, when twice Mr. Flynn appeared before the judge and basically pleaded guilty.

He basically said he did it. I mean, the justification for withdrawing this plea is suspect, at best.

MELBER: Right.

Well, to your evidence, we always like to show people the facts and evidence with their own eyes. There is a transcript of when Flynn pled guilty, December 2017. And this same judge that you`re appealing to now says: "Do you understand your guilty plea and continuous sentencing? You give up your right forever to challenge the circumstances under which you were interviewed," which is the only thing people are debating now.

And Mr. Flynn said, under oath, trying to reduce his prison sentence, he said, "Yes, Your Honor."

Eagle-eyed viewers will note the source at the bottom of the screen says "Source: U.S. Justice Department," which is to say, Nick, if you are allowed to join in to this case with a brief and more, some of your best evidence comes from the other side.

It comes from the Justice Department, before Bill Barr ran it.

AKERMAN: Oh, that`s absolutely correct.

And not only did Flynn plead guilty. He also stated what he did. The judge had him recite what he did, what he lied about, and what he said, and examined the materiality of that lie.

And the judge made a finding twice, not once, but twice that what he recited to was a federal crime.

So, I just don`t see how the judge can suddenly just dismiss this out of hand, without more explanation than he`s already received. I might add...


MELBER: I`m almost out of time. I got to get you on one more thing, Nick, because there is you, but there is also Sean Penn coming up later.

When will you know whether you are allowed to participate and when will we know whether they reject Barr`s attempt and potentially give Flynn a prison sentence?

AKERMAN: Oh, I think this is going to take some time.

I don`t think we`re going to know right away. And assuming that we do get accepted, I think it`s going to be sometime before the judge finally decides this issue. This is not going to happen next week.

MELBER: It`s a fascinating case.

You are becoming a potential legal participant, which is different than how we have used you in the past, which is as an analyst.

So, I always like to make sure everyone understands that. But knowing your legal mind and acumen, I`m fascinated to see you stepping up with, as mentioned, 15 other prosecutors to potentially provide legal arguments.

We obviously will be coming back to you, sir. Thank you.

AKERMAN: Thank you.

MELBER: As mentioned, we`re moving ahead because I want to fit in a break.

But, later tonight, Oscar winner Sean Penn is trying to step up and use his prestige and his funding to help give out free coronavirus testing to people who need it.

We have a lot more on the show. Stay with us after a break.


MELBER: After everything we have been through as a nation, here is something about the pandemic that we do know.

Health experts say the biggest single obstacle for the United States to fully reopening is the lack of national testing.

The actor and author Sean Penn is one of many people stepping up to help, as the federal government struggles to provide this testing. He joins me in a moment.

Let me give you a little background that you probably don`t need.

Mr. Sean Penn has, of course, appeared in over 50 films and so many classics, to name a few, "Carlito`s Way," "Dead Man Walking," "I Am Sam," "The Thin Red Line."

He is also a two-time Oscar winner, winning best actor for his role in the 2004 film "Mystic River" and then again for something that hits close to home for many people, and, of course, is a theory and a facet of our politics for years, his heartbreaking portrayal of the politician and LGBT activist Harvey Milk.

Penn also co-founded this relief organization, CORE, back in 2010. This was after earthquakes in Haiti. CORE has been operating now a dozen testing sites. This is both throughout California and additional sites in Atlanta, Detroit and North Carolina.

This is the day-in-and-day-out work of supporting all the other efforts, including governmental, to improve testing in our country.

Now, in the coming weeks, they`re working to expand into other parts of America, including in New Orleans. Recently the organization got another boost with a $10 million donation from Twitter co-founder Jack Dorsey, working on this mission of helping many of the most vulnerable during the pandemic.

CORE has given about 130,000 COVID-19 tests since the end of March, and each and every one of them are free.

Sean Penn returns to THE BEAT.

Good to see you, even in tough times, sir. Thanks for being here.

SEAN PENN, ACTOR/ACTIVIST: Thanks very much. Good to see you again.

MELBER: Absolutely.

You have been at this a while, as mentioned. This organization has done different things. Walk us through how you and your colleagues looked at this challenge and jumped into this.

PENN: I guess the short version is that we`d been initially involved in disaster response.

We had built up some skills and some lessons learned over these years. We had moved from operating just in Haiti into the United States in the Hurricane Belt, in the Bahamas, Puerto Rico, and we developed a network of volunteers, and did trainings, with a real agenda for prevention, and preparedness.

And then this came. And we had been through the cholera epidemic in Haiti, and been through a particular case of diphtheria, where we were dealing with a transmittable infectious disease, and with these issues of testing, contact tracing.

And so, when this happened, we went to the governor`s office, Governor Newsom, who has been doing an extraordinary job here in California. And he put us onto Los Angeles Mayor Garcetti, who had put us into place, with the L.A. Fire Department, a fairly robust testing program.

But those sites were being manned by the L.A. Fire Department, who should be available to the city for their emergency response, their paramedics in general.

So, we were able to plug right in with our volunteer corps, get everybody trained up, and get those firefighters back in the streets and, God forbid, fighting forest fires.

Out of that, we began to expand into the governor`s program in California statewide, and then, from that, by extension, as you noted in the opening, because of an extraordinary support and donation from Jack Dorsey, you know, into going nationwide.

MELBER: Yes. I will make a quick joke. Who knew Twitter was good for anything? But...

PENN: I didn`t know what Twitter really was for...


MELBER: Go ahead. Go ahead.

PENN: I say, I wasn`t -- I`m a Luddite who has avoided all social media.

And I have just gotten my first Twitter -- tweets out, through Jack`s challenge, in the last week.

But, yes, it`s -- he`s...

MELBER: I saw that, man. I saw you jumped on, and you were new.

So, you basically, because of working with him in the humanitarian work you`re doing, you thought, OK, I will try it. You had really -- I got to hand it to you.

Staying off Twitter until 2020 is a -- that is an accomplishment, and a good one.

PENN: Well, I hope to accomplish staying off of the comments board as well as I have so far, because I have a sense of what those kinds of things can be.

MELBER: Yes. So, you went and did these meetings.

One thing I wanted to ask you. I got to hang with you a little bit when you were in for your book, so we talked in person.

And most people are busy trying to get through their lives and their challenges and their day. You, in addition to being obviously this tremendous actor from all the stuff we mentioned, you have had the privilege of going a lot around the world.

And you are very interested in the rest of the world. I`m curious, just because of that, how much that informed the way you approached this, because America, in the recent era, if you don`t go back to 1918, is living through this for a first time.

But, as you know, many other countries around the world have recently dealt with this level of fear, of lockdown. I am just curious how that played into your view of all of this?

PENN: Well, I would answer two ways.

One is, there are pockets of America for whom this isn`t an entirely new dynamic. And those are the same pockets that are being most specifically targeted by this virus.

And that has to do with the marginalized communities, those who are less digitally fluent.

And so -- and Haiti, which is the poorest country in the Western Hemisphere, and twice as poor as the next poorest country in the Western Hemisphere, was a very good training ground for -- to have kind of a belief in resilience and citizenry.

We have extraordinary volunteers and staff there. And so I believed we could do the same here.

And, sure enough, there`s 450 volunteers manning our sites as we are talking, all from the communities where the sites are, all trained, local people, and doing an incredible job.

There is a really untapped power in community support and the idea that what we are trying to hard to model is to be able to bridge with and partnership between whether it is community organizations or NGOs like ours and local governance, state governance.

MELBER: Right. That is so important,

And I love what you are bringing to it. We wanted to spotlight this. I`m going to tell people how to get involved.

Sean Penn, thanks for coming on THE BEAT again, sir.

PENN: You bet. Thank you very much.

MELBER: A hundred percent.

Let me tell everyone, you can go volunteer or donate. You can get involved in the way that makes sense for you and your life.


And THE BEAT will be right back.



You can always find me @AriMelber on Facebook, Twitter, or Instagram -- Twitter, something we were discussing with Sean Penn tonight, because he just joined for COVID relief.

We will be back at 6:00 p.m. Eastern tomorrow.

Keep it right here, right now on MSNBC.