50 states partially reopened TRANSCRIPT: 5/20/20, The Beat w/ Ari Melber

Guests: Christina Greer, Jeff Merkley, John Flannery, E.J. Dionne, Esther Choo

CHUCK TODD, MSNBC HOST: THE BEAT WITH ARI MELBER starts right now.

Good evening, Ari.

ARI MELBER, MSNBC HOST: Good evening, my friend. Thank you, Chuck.

I`m Ari Melber.

And we are tracking several stories for you tonight, some about the pandemic, others charting new headaches for the Trump administration.

It has been now four different officials ousted as independent watchdogs, which has drawn questions from even some top Republican senators. Now new problems hitting a Trump official whose conduct was under review. Reports that Mike Pompeo may have misused taxpayer money for political ambitions.

Also, guilty Trump aide Michael Flynn taking new steps to try to cash in on that special deal that was coming from Trump`s DOJ. Plus, Roger Stone emerging with something to say about all of it. We will have later in this hour.

Plus, in any other year, we`d be covering a presidential campaign, of course, in full swing heading into Memorial Day. This year is different for all the reasons we know. But, as Donald Trump is struggling in polling, both on his virus response and his overall standing, there is new tussling between him and Biden.

Some arguing Democrats must learn from Donald Trump`s scorched-earth playbook for Biden to win this time. We have that story with a special veteran politico later this hour.

But we begin with the state of America during this pandemic. You know, many nights, we come out to you, whichever anchor you watch every different hour, and we all do something similar.

We report the grim picture, the cases, the death tolls, and those challenges, of course, grind on.

Tonight is something a little different. Tonight is a marker in how far we have gotten and where the policy response to coronavirus is, because I can tell you tonight, all 50 states are operating partially reopened.

Now, if this works over time, this week, this moment will be the time that marked this slow turn towards rebounding, with every state trying to do this. And, of course, that means, by definition, every state means no matter the party that`s in charge, no matter the region, we have all the different ways that we live, different states do different things with different densities.

We all have something in common right now. But if this does not work out well, if some places are opening too early, or if people are not following enough of the precautions in places where they are together and exposed, or if something else goes wrong for reasons that may be very hard to see right now, and if these same states that are now open end up having to close back down to combat a second wave, then this moment may look like a very different milestone.

To paraphrase the great artist De La Soul, the stakes is high. And experts agree the U.S. needs reliable data and science in real time to measure the results to deal with these stakes.

But that itself is now under attack by the Trump administration, according to some of the most renowned disease experts in the nation.

An official from the Centers for Disease Control is blowing the whistle at this very time, as we were just discussing, where people need to know what`s working or failing in their states, in their countries -- in their counties, I should say, in their communities, this official alleging medical censorship on those very results by Donald Trump and his allies, saying -- quote -- "We have been muzzled. If we would have acted earlier on what we knew and recommended, we would have saved lives and money."

Also adding that Trump became hyper-political when the CDC correctly warned of severe disruptions to life. Those were public warnings before these government lockdowns. They proved prescient. And this official, as long -- in addition to other reporting that we have seen, is basically documenting how Donald Trump didn`t like the bad news, even when it was accurate, and has retaliated in ways that these experts are saying will make it harder to track the reopenings to know what`s working.

Now, look, this is obviously a serious set of allegations from credible sources about lives lost. The ongoing risk if the government, federal or state, distorts the results of this reopening is a major issue.

You could say it`s the issue right now. Testing is also critical to reopening. But most places right now, they don`t have it; 54 percent of counties in the U.S. have no COVID testing sites.

And, as if you needed any further signs the coronavirus is not only a health and economic crisis, but it is becoming clearly the defining issue in the president`s reelection, the AP is reporting on a leaked call involving Trump campaign staff recruiting doctors to sell Trump`s case on reopening the economy, no matter what.

Now, to be as accurate as possible, we can note that any doctor, like any person, can speak out on their views. That`s their right. But the AP article is making waves tonight because it reports that the goal in this campaign-orchestrated call was not for doctors to share medical analysis or share their support for a given candidate, which they can do, but rather to promote reopening -- quote -- "without waiting to meet safety benchmarks."

You don`t need to be an expert on medicine to know that doctors take an oath to abstain from doing harm. And that tees up two big questions, as we turn to our guests tonight.

First, if reopening plans are working, why this government pressure to censor the data about how they`re working? And, second, to avoid harm, shouldn`t these safety benchmarks be met? Simple questions. Maybe they require complex answers.

We have some experts to help dig through it, E.J. Dionne, columnist for "The Washington Post," Christina Greer, an associate professor at Fordham, and Dr. Esther Choo, an emergency physician and associate professor at the Oregon Health and Science University.

Doctor, your thoughts on those questions?

DR. ESTHER CHOO, FOUNDER, EQUITY QUOTIENT: Yes, what a start.

We certainly are marching ahead with reopening, even as the best public health recommendations have been consistently that we should see a decrease in cases for 14 days before we proceed with reopening.

Nevertheless, here we go. So we`re going to have to do the best that we can with the measures that states and local municipalities are taking.

I think the key thing will be pushing for testing, not just testing of patients in hospitals who are very sick, but, hopefully, we will be ramping up surveillance testing of asymptomatic folks out in the community, so that we have a much earlier signal of the results of our reopening measures.

And I will point out too that that...

(CROSSTALK)

MELBER: Well, let me focus you a little bit, though, because I want to get really into the question. Is it medically valid for doctors to say, yes, reopen without meeting the safety benchmarks?

CHOO: Well, doctors should never be called in specifically to back up a specific message.

That`s kind of not the way an invitation for medical advice should go. It should be, here is the available data collected in the best means possible, objective data. Can you respond to that with your expertise?

That is the invitation that I`m looking for. When I decided to come on your show tonight, nobody asked me if I could back up a specific point of view, and that`s why I accepted the invitation, is that I am free to speak objectively from a science-based and public health perspective.

MELBER: Christina?

CHRISTINA GREER, FORDHAM UNIVERSITY: Well, I mean, this reminds me of something my grandfather used to say, is you have to do what you have to do in order to do what you want to do.

And I think, unfortunately, far too many Americans want to be outside. They want to go and sit in restaurants and sporting events. However, we just don`t have enough information, and we definitely don`t have vaccines.

We`re a country of 330 million people. Roughly 1 percent or maybe more have been tested. But, clearly, not even a significant number of Americans have been tested. And we don`t have a vaccine.

So, just because Americans want to be out and about, just because Donald Trump is concerned that the economics of the nation are threatening his reelection chances doesn`t mean that we should put the health and safety of Americans before facts and reality.

And so my concern is, as someone who is in New York City in, in many ways, the epicenter of what`s going on, especially in Brooklyn, there is a desire to get back to whatever normal was, but we -- as Dr. Choo mentioned, there are far too many people who have no symptoms who are still spreading the virus.

We`re seeing in New York especially younger people are now getting the virus. These are conversations we`re having at a university level. What is safe and prudent to welcome people back to a campus where you will have thousands of people in one building at a time?

And so I think the frustration is Americans, many Americans, of particular demographics, aren`t used to be told no and they`re not used to listening to rules and reason. And we`re seeing things like people storming the Michigan Statehouse, people protesting so they can get haircuts.

Cut your hair at home. Go on YouTube. Figure it out. But it`s -- your desire to have ice cream and hang out with friends is not -- does not supersede the public safety of your neighbors.

MELBER: And, Doctor, you`re nodding your head.

The efforts here, sometimes clumsy, which we`re about to show, to distort the data to get to a policy place are dangerous. This is a Georgia Health Department. So, this is a government.

And they put out this chart, which, on a first glance, if you were just online or on Facebook, you say oh, well, it looks like it`s going down.

In fact, that is not true because they have rearranged the county bar charts you`re looking at to be out of order. This is a clumsier example. We didn`t even need to phone a doctor, as I have been fond of saying lately, to disprove it.

But it is an example of how careful, I think, we all need to be as viewers and citizens. And so, Doctor, I`m curious what you think about that messing with science. And I would stipulate that there is a legitimate debate in any safety policy about trade-offs.

If somebody wants a higher speed limit vs. a lower one, you can talk about different death rates. And it doesn`t mean that the country lands on only 20 miles per hour. But that has to be fact-based of, what are the health death rates, and then what do we do about it? And people make those policy choices all the time.

What does it say to you? What do you think viewers and citizens, really, we should all understand that we`re in a place where, instead of acknowledging, well, there is this high a death rate or this is the second wave, do you want the deal with it or not, but that seems so unpalatable, that there is an effort already to cook the books while we`re living through this march of death.

CHOO: Yes.

And it`s really tough to see data manipulated like that, because I will tell you, even in the best possible circumstances, where we have data accurately laid out, psychologically, as a nation, we are looking for slivers of hope.

MELBER: Sure.

CHOO: That is what the excitement phase one clinical trial of a vaccine is. It`s just like, give me some good news, and people will cling to it.

So I actually think we could put out exactly the data that`s there. People are very willing to celebrate plateau, not even decrease in cases, but plateau, we`re willing to celebrate. So, it`s almost like there is no need to manipulate this data if, on top of that, you`re giving people false hope.

I just worry the pendulum will swing. If we overreact to manipulated data, then there will be the fallout for -- the very natural fallout of increased illness and death. And I think that, coming down from that, from falsely good information to reality, will actually be more devastating than just simply facing the accurate, tough reality we have right now.

MELBER: Understood.

E.J., you have been patiently with us as we have been getting educated.

Take a listen to the president here trying to take the U.S.` problems and claim somehow they`re a badge of honor.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: When we have a lot of cases, I don`t look at that as a bad thing.

I look at that as -- in a certain respect, as being a good thing, because it means our testing is much better. So if we were testing a million people, instead of 14 million people, we would have far fewer cases. Right?

So, I view it as a badge of honor. Really, it`s a badge of honor. It`s a great tribute to the testing and all of the work that a lot of professionals have done.

(END VIDEO CLIP)

MELBER: E.J.?

E.J. DIONNE, COLUMNIST, "THE WASHINGTON POST": Well, it`s rather astounding that, because we are counting the problem, we should praise ourselves because the problem is so big because we counted it. It`s a very weird logic that the president was using.

MELBER: Weird. Now, I got to ask you...

(CROSSTALK)

MELBER: E.J. -- E.J., I know we`re on a slight delay.

DIONNE: Yes.

MELBER: I just have to ask you, is weird -- because I know what a nice person you are, describing the president`s comments. Is weird your diplomatic word for stupid?

DIONNE: Faulty, mistaken. Sure, I think it`s pretty stupid, if you want to insist.

But I...

MELBER: Up to you.

DIONNE: I think the country itself is actually quite shrewd about all this.

Everybody wants the economy to open, and everybody wants to avoid the spread of the virus, and they know there is a trade-off. And what`s striking is, even though we have talked a lot about a partisan division on this, most Republicans are reluctant to open the economy too quickly.

Quinnipiac today had a poll giving people the straight-up choice, would you rather open quickly, even at the risk of spreading the virus, or slow down the opening, even if that risks the economy?

Seventy-five percent of the country said, go slowly, rather than -- even if there is a risk to the economy. The go-quickly side was only 21 percent, and only 44 percent of Republicans.

And I also think there is a kind of false promise of reopening here. I have talked to a bunch of economists and read a bunch of economists over the last few weeks. And if you talk to them, what they say is, it doesn`t matter that the government says reopen.

What matters is, do people feel safe? Do people feel they can go somewhere and not get the virus? I don`t think you`re going to see people rushing out to restaurants or rushing out to theaters or concerts in this period, so that we shouldn`t pretend that just formally saying, let`s reopen the economy means everybody`s going to flood out there.

"The Economist" magazine had a very thoughtful idea, which is, even when we get back to something much better than where we are, we are still for a long time going to have what they called a 90 percent economy.

And so let`s not pretend that this milestone, which, you`re right, is a milestone of sorts, is actually the grand opening of the economy, because it isn`t.

MELBER: Yes.

I think that`s very good context and again goes to the theme here throughout the conversation, which is, what does the facts provide for where we`re going?

I have got to fit in a break.

I want to thank E.J. Dionne, Professional Christina Greer, Dr. Esther Choo. Thanks to each of you.

Coming up: Donald Trump`s top diplomat under fire. Reporting about secret dinners that may have been political. Senator Jeff Merkley is here.

Later: Michael Flynn`s lawyers trying to actually get around that setback of a new judge involved in his case -- a bid to get his charges dropped. We have that story and a special guest.

And new evidence tonight of how Donald Trump might use Senate Republicans as part of an election strategy against Joe Biden.

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

(COMMERCIAL BREAK)

MELBER: Things are looking swampier and swampier in Donald Trump`s Washington.

We are seeing reports that add intrigue over the Friday night firing of the top watchdog at the State Department, the fourth in just this last two months. Secretary of State Mike Pompeo under fire for VIP gatherings dubbed the Madison dinners hosted for insiders, CEOs. A FOX News host showed up, and other big names.

Those heavyweights got invitations like this. And these dinners were, interestingly, kept off Pompeo`s public schedule.

Now, the ethics question here is whether these were for State Department business or Pompeo`s personal political interests. The White House and many different agencies obviously host gatherings, sometimes fancy ones, to talk shop, develop working relationships, and in the case of diplomacy, to casually break bread and speak with business and civic leaders from around the world.

That`s standard, and let`s be very clear, that`s happened in past administrations of both parties. But what`s different here, potentially, is that Pompeo`s own State Department staff grew concerned when some events looked more like political operations than doing work, doing government business, doing diplomacy.

It is illegal to use government property or taxpayer money to help your own campaign or future campaign.

NBC reporting that the officials inside Pompeo`s State Department saw this as an effort to -- quote -- "cultivate a donor base for Pompeo`s political ambitions." He`s talked about running for Senate. And the article notes that there was -- quote -- "extensive contact information that was sent back," where? Not to the diplomacy register, not to the White House planning board. No, to his wife`s -- quote -- "personal e-mail address."

So there is that.

Then, today, you have new reporting showing Pompeo was also aware that this new fired watchdog had some open probes. Pompeo even submitting written questions to the watchdog, while declining to do an interview in person, just like his boss declined for Mueller.

Now, today, Pompeo says he didn`t realize that he was personally under investigation.

(BEGIN VIDEO CLIP)

MIKE POMPEO, U.S. SECRETARY OF STATE: I recommended to the president that Steve Linick be terminated, frankly should have done it some time ago.

There were claims that this was for retaliation. I have no sense of what investigations were taking place. Couldn`t possibly have retaliated for all the things. I have seen in the various stories that someone was walking my dogs to sell arms to my dry cleaner.

It`s all just crazy. It`s all crazy stuff.

(END VIDEO CLIP)

MELBER: Joining us now is Democratic Senator Jeff Merkley from Oregon.

He sits on the very relevant Foreign Relations Committee, which oversees this.

Thanks for joining us.

SEN. JEFF MERKLEY (D-OR): You bet.

MELBER: History is a guide here. And I just want to be clear and get your view of the distinction, because past administrations, whether it`s an Obama state dinner or a Bush state dinner, there are plenty of fancy dinners in Washington that are lawful, ethical.

What do you see in this reporting that concerns you? Is it different? And what about the other investigations this watchdog was reportedly doing?

MERKLEY: Well, you would expect a secretary of state to be holding networking meetings, networking dinners, cultivating lots of connections with ambassadors from around the world, with influential individuals in America who have connections related to foreign policy, members of Congress, members of the Senate. All that would be normal.

The initial report on this sounds like very high-end, fancy dinners that seem to have little connection to the conduct of foreign affairs, at a time that the secretary was considering running for political office.

That`s what makes it highly questionable. It goes with other issues that have been raised, for example, the secretary using public funds to fly back and forth to his home state, and, of course, this bigger issue in which he fired the inspector general.

MELBER: Mitch McConnell, who does lead the Senate you`re in, completely defending this. Take a listen.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): Yes, look, he is certainly within his authority. He gets to hire and fire, under the Constitution, all the people in the executive branch.

He has the full authority to higher and fire under the Constitution.

(END VIDEO CLIP)

MELBER: As we do around here, Senator, I will say, fact-check, true.

There are things here that don`t make sense to a lot of people, like you have a watchdog, they start investigating the head of the agency. If they do their job well and they find bad things or they kick up dust, they become very unpopular in the agency, and that agency head working with the president then ousts them, I could see a lot wrong with that.

But whether that looks wrong and is illegal or unconstitutional are two different things.

So, I`m curious about what Mitch McConnell says here, your reaction, and whether it is a problem with the law that it is easy enough to remove these individuals?

I will add as a footnote, we had Matt Schlapp, a big defender of the president on, and I pressed him about this, and said, well, was this even a firing -- should it be a firing for cause? Because, technically, they could just get him out.

And he actually said, yes, that would probably be a better system, more independent.

So, how much of this, in your view, is a problem with the law vs. a problem with Trump?

MERKLEY: Well, what we have here is a wholesale attack on the structure of the Constitution, which involves a balance between the branches, checks and balances.

And the president is systematically dismantling that, first of all, not letting people testify on Capitol Hill, second, blocking documents, third, attacking whistle-blowers, and now, in five weeks, sacking four inspector generals, the folks who are inside who produce reports to make sure that the executive branch is abiding by the constitutional framework, following the law, implementing the law as passed.

And then we have the personal ethical side of this as well, in which a secretary of state under investigation for personal acts, under investigation for potential misuse of emergency power to sell $8 billion of arms to Saudi Arabia, which Congress was very concerned about because of the war in Yemen and because of the assassination of Jamal Khashoggi, working for "The Washington Post," those are three big issues all tied into this moment.

MELBER: Let -- sir, let me press you on that, though.

I think anyone listening to you would go, wow, that sounds bad. But you don`t maintain that the president doesn`t have the authority under federal law to remove these watchdogs, do you?

MERKLEY: No, I do not.

So, having the authority to do it, but we have a responsibility to sustain the balance between -- mutual accountability, if you will, between judiciary, executive, legislative. The founders of our Constitution designed that because they were concerned about an imperial presidency, the tendency of someone in this new republic to want to become a king...

MELBER: Sure.

MERKLEY: ... outside the reach of law.

And so they designed...

(CROSSTALK)

MELBER: This is my final question to you on solutions -- on solutions, Senator.

If you, if your side took over and you were running the Foreign Relations Committee, if you had a Democratic president -- that`s what Joe Biden wants to be -- would you support changing these laws to give the independent watchdogs the independence that other officials have?

There are people in the lower levels of the FBI who can`t just be personally fired by the president. Would you support that change or would you not go that far?

MERKLEY: I think that, probably, yes.

And I say that in the context of not being sure if that would pass constitutional muster to have an inspector general who couldn`t be fired by the president.

But the principle -- it`s why so much of what we do depends on principles and integrity, not just the letter of the law. We need every president, including this president, to respect why we have inspector generals.

They are supposed to do investigations and look at things that look questionable, to inform the American people, to inform Congress. So, changing the law is one approach. And perhaps we can do that and do it constitutionally.

But the other is to create enough public awareness and backlash to say, this conduct is unacceptable.

MELBER: Understood.

And it`s really interesting. You guys in the Senate, what do you call this, a colloquy? I appreciate the back-and-forth, sir.

MERKLEY: Yes. Yes, we do call it a colloquy.

And we need a lot more colloquy on the floor of the Senate about these types of issues and how to save the framework of our republic.

MELBER: Well, I appreciate you going big picture with it. I wish you luck on that.

It was former President Obama who famously said, people tell him to have a beer with Mitch McConnell, and he would joke, you have a beer with Mitch McConnell.

But, yes, I urge you to have a colloquy and a social distant beer at your next opportunity.

Senator Merkley, thanks for the conversation. These are big topics. I Appreciate it.

We have a 30-second break.

When we come back: Michael Flynn`s new push to get his case dismissed.

John Flannery -- when we`re back in 30.

(COMMERCIAL BREAK)

MELBER: Welcome back.

Donald Trump`s former National Security Adviser Mike Flynn, who pled guilty for lying to the FBI, continuing to push to try to get those charges dropped, even though he already plead to them initially.

The judge in the case appointed a special attorney here to weigh in on whether Bill Barr`s Justice Department is wrong to reverse itself in this prosecution from the Mueller probe.

Now, as Flynn fights to avoid sentencing, another convicted felon and former Trump adviser, Roger Stone, apparently sees some benefit in now publicly arguing that he thinks he is like Michael Flynn.

(BEGIN VIDEO CLIP)

ROGER STONE, FORMER TRUMP CAMPAIGN ADVISER: I would say both General Flynn, who I consider a great American patriot, and I are the subjects of a political vendetta. This president needs to be reelected, Lou.

He is the greatest president in my lifetime. I would never give false testimony against him.

(END VIDEO CLIP)

MELBER: We are joined by John Flannery, a former federal prosecutor, who is one of the more than 1,000 DOJ veterans who signed on to that brief. We have discussed it on air.

Good to see you.

(CROSSTALK)

MELBER: Starting with Roger Stone, look, he says this is the greatest president, in his view, in his life. And that`s saying something, because he was a big Nixon fan with a literal tattoo of Richard Nixon on his back.

And now, by his book, Trump is even better. John, I let you sink into that before we get into the law.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Well, you know, we have two scoundrels here.

We have Stone and we have Flynn. And there isn`t anybody with a reasonable mind who would think otherwise. And, you know, Stone, having been convicted, you have got to give him the award for chutzpah. He comes on saying that, oh, I`m as innocent as Flynn is.

And Flynn twice said he was guilty, which I would think would be even stronger than what Stone did. He had to be convicted of 12 persons in a jury. So, yes, so I think these guys live a fiction. (AUDIO GAP)

(CROSSTALK)

MELBER: Yes, you make a distinction that is important here, which is Stone, whatever everyone thinks of him, he was consistent. We have reported that.

He maintained his innocence. He maintained that he viewed the entire effort as an attempt to squeeze him to say negative things about the president that he said were not true. And he was consistent. Now, he was convicted.

But he is different than Flynn in that way. As you point out, he is now trying to consort with Flynn, because Flynn appears to be getting special treatment. Maybe Stone is hoping for the same from this administration.

But Flynn came out and said oh, my God, you`re accusing me of multiple felonies, potentially, including financial -- alleged financial crime involving Turkey. So, I will plead to one thing. And he did plead guilty. That`s the difference between them.

Let me read from this brief for you to explain to us where this story is headed. We have been taking it in pieces on different nights.

But in challenging the Barr Justice Department, you write: "It`s a brazen attempt to protect an ally of Trump. The dismissal appears to serve Trump`s personal political interests, rather than the interests of the public."

How does that argument work in court to reverse or stop, as you hope to do, the Justice Department saying, we changed our mind, we withdraw the prosecutions?

FLANNERY: Well, I will try not to be too much of a policy wonk.

But the rule that is at issue here is rule 48 A and B. And it`s a rule that says the prosecution can move to dismiss a case with the leave of the court, meaning the court has to exercise its discretion. So, it`s not enough to say, oh, we, the almighty Department of Justice, want to have this case dismissed.

It has to be with the leave of the court. And what`s the standard? Is it in the interest of the public to grant that dismissal?

Well, this is a judge who has heard Flynn twice say he committed this, heard the first...

(CROSSTALK)

MELBER: May I pause with you there? You -- I`m going pause you.

And you move so fast, I would be nervous to be in your law school course, because you`re jumping ahead to part two.

But, on part one, let`s just be clear. You`re underscoring that, at the beginning of the road, it`s all the prosecutor`s call. It is a fact that not every potential crime in America is charged. Prosecutors make decisions. They involve judgment.

And, sometimes, you say, we`re going to go after this person and not that. And that`s -- the ball is in their court.

And what you`re saying is, once they go forward, the FBI found this information, Mueller prosecuted it, Flynn pled guilty, now the ball is in the judge`s court.

So, whatever one thinks about this case, you`re saying it`s a matter of law that the judge decides this, not necessarily Bill Barr saying, oh, I disagree with everyone underneath me at the DOJ, I disagree with Sessions, who recused, I disagree with Rosenstein, who moved forward on this, I want to take it back?

You`re saying, there is no backsies without judicial approval?

FLANNERY: Right.

Well, think about it. It`s a motion. They`re asking permission to do something. Otherwise, they would give notice to the court and say, ah, we decided to dismiss this case. And the judge would have no role. So that makes no sense.

And in many cases, the judge agrees with it. There is no dispute. But here we have a special case. We have a transparent political syndicate that pushes false propositions, scares off career officers who are prosecuting the case, and then contradicts what`s been said for years.

And those contradictions are rightly the subject of an inquiry by the court, saying, did he commit perjury? Is this contemptible? What should I do about it? And what should I be doing about the Justice Department that they could do this and come in and make some argument that, is it material or not, when it plainly is, that the national security adviser is having secret meetings with the Russian ambassador, undermining our sanctions about their interference in our last election four years ago?

So that`s the picture, I think, of the case. And they have gone to the court of appeals because they can`t wait. You know, it`s interesting. Sidney Powell praised this judge for how he rooted out corruption in the Justice Department in the Ted Stevens case.

And now maybe, because she knows how strong he is, she`s afraid that he is just going to do the right thing here and, to borrow that line from the movies, you can`t stand the truth.

Well, he hasn`t made a decision yet. So, they`re going to ahead of their argument.

MELBER: Handle.

Flannery, it`s, you can`t handle the truth.

FLANNERY: Yes.

MELBER: You want me on that wall. You need me on that wall.

FLANNERY: You can`t handle the truth. What did I say?

MELBER: I think you said stand.

FLANNERY: I do -- I put you on that -- oh, OK. Well, you can`t stand the truth.

However you want to get to the formulation, the truth is alien to this group of criminals that are in the Justice Department. And counsel...

(CROSSTALK)

FLANNERY: ... desperation was trying to (AUDIO GAP)

MELBER: It`s my job, as a journalist, to say, the courts will decide who the criminals are. But you`re a strongly-worded litigant, and you can say what you want. Freedom of speech on THE BEAT and around the nation.

But you`re getting two quick things. I`m running out of time. But you`re citing the judge`s history, which is important. You mentioned Ted Stevens, who was a very prominent, very powerful Republican senator.

FLANNERY: Right.

MELBER: And there was findings that prosecutors withheld material against him. That was unfair. It doesn`t matter whether he was a Democrat or a Republican. It was deemed to be unfair.

And you`re mentioning that the judge took that all, which can be hard for judges...

FLANNERY: Right.

MELBER: ... because, generally, at a distance, the public says, well, if a politician looked dirty, that`s enough, when, in fact -- and many politicians do seem dirty.

But the law requires more. And you say there was that fairness, and it was obviously nonpartisan.

Before I let you go here, real quick, on a scale of one to 100 percent, the odds you think you will win in the case, now that you`re a part of the group litigating it?

FLANNERY: One hundred and 10.

MELBER: Well, John, that`s -- that overstatement is going to undermine your credibility.

We will play this back to you, no matter what happen.

FLANNERY: I will live with it.

I will take the chance, because this is the most outages misconduct of the Justice Department in my lifetime. And we have had some pretty outrageous things happen.

MELBER: Well, John Flannery, a pugnacious lawyer that I look up to.

They call for zealous advocacy. Maybe that`s where you found the extra 10 percent, a mathematical impossibility.

We will see you again, John. Thank you.

FLANNERY: Thank you.

MELBER: Always a pleasure.

We have a lot more on tonight`s show.

Following the money for the wall. Remember that story?

And, meanwhile, 2020, Joe Biden, the conspiracy theory playbook, is it turning into abuse of power, something the president was already impeached for? We have a very interesting strategic insider on all of this, 2020, later in the show.

(COMMERCIAL BREAK)

MELBER: We are heading towards a monumental election, and Donald Trump is facing all kinds of obstacles that no incumbent would want, majorities disapproving of how he handles this pandemic, 36 million people now without jobs.

And, tonight, there is new polling that actually suggests Biden leading Trump in three battleground states ,Florida, Virginia and Arizona. These are clues that matter, not the national polls, and no Democrat has won some of these since Bill Clinton.

Donald Trump has all the advantages that an incumbent president enjoys, of course. It includes in this case something more than just being in charge of the White House. He has a fellow majority of the GOP in the Senate, and they can do their jobs and do government work, or they can try to put a thumb on the scale, launching investigations to damage the opponent.

Now, that`s something that really hasn`t been done in the mainstream since the McCarthy era, for good reason. But NBC News reporting Trump is at least pushing for those kind of requests. This is in secret meetings on Capitol Hill.

Senator John Kennedy, a Republican, saying it boiled down to getting serious about finding out what happened with Flynn and Carter Page.

But as part of that push, Senator Lindsey Graham, looking for broad powers to also go after former Obama officials, and, today, Republicans in a different Senate committee reigniting the probe that Trump has been calling into the Bidens, issuing a subpoena related to something you may remember.

When we talk about Biden, we also used to talk about Burisma. That`s the B for both. Democrats denouncing all of this as rank partisan abuse of power.

(BEGIN VIDEO CLIP)

SEN. KAMALA HARRIS (D-CA): This committee is doing the president`s personal bidding. Members of this committee, I urge you to vote against this political sideshow, so that we can focus our attention on the pandemic.

SEN. MAGGIE HASSAN (D-NH): This committee is spending its time on partisan nonsense and conspiracy theories, a charade that would be silly, if it were not so insidious.

(END VIDEO CLIP)

MELBER: We`re joined by MSNBC political analyst and a longtime Republican strategist, Mike Murphy.

Good evening to you, sir.

MIKE MURPHY, MSNBC POLITICAL ANALYST: Hey. Hello.

MELBER: Hello.

We`re actually just doing a politics segment, not an endless depression segment, although we cover plenty of dark stuff, and we have done that tonight.

This is politics.

The negative on this is, it`s not normal. It`s worse than usual. It`s even, after he was impeached for going after the Bidens. And it looks like something that really undermines rule of law and democracy in America.

The defense of it is, Congress has been an avenue and a venue for politics, especially election-year politics, for a long time.

As someone with the credibility of Republican experience, I assume -- I know you care about the country. Where do you come down on understanding what we`re seeing here?

MURPHY: Well, I -- first of all, whenever I hear anybody in a congressional hearing on either side start dropping the word charade, I generally change the channel and try to find a good old movie.

It`s an election year, and Congress has every right to investigate and make noise. But people need to have a big filter on, because they`re making noise. The Republican strategy, they`re all kind of in the lifeboat right now because Trump`s numbers have been so bad and have gotten worse during this pandemic emergency.

So they have got the world`s simplest strategy. Others have used it before in the past, which is change the subject of the election. Get it off fire Donald Trump, which is where the polling today, into here`s what`s wrong with Joe Biden.

So the kind of congressional windmill will churn on the Republican side trying to serve that strategy. But people have a big filter about it. It`s the same reason a lot of the Democratic investigations of Trump didn`t really move the numbers on Trump.

His people are dug in. The Democrats who don`t like Trump and the independents are dug in. So, I doubt this will be, despite the Herculean noise-making, much of a number-mover in the election.

MELBER: That`s interesting, because that`s a separate calculus, then folks who are looking for whether it becomes something that`s unconstitutional, and how does our system deal with that.

We were covering that earlier this hour with the related issues in the Mueller probe and whether somebody goes so far -- Barr went so far over the line that a judge says, no, you`re over the line. Hopefully, we have a system that`s supposed to deal with that.

On the politics, you`re saying, this may not work that well, which is interesting coming from you.

I`m also curious where the incumbency fits in, in your view, because disqualifying your opponent when you`re both running from zero seems to be a different strategy than being the incumbent president and trying to get everyone to pay attention to the other guy, Biden, and sort of disqualify him.

How do you see that as a contrast to what Trump was doing in constantly invoking what turned out to be obviously complete false criminal allegations against Clinton all the way up and through Election Day?

MURPHY: Well, Trump is a grievance politician, so he always has to have something to be against.

And the big dilemma he has is, it`s hard to run as an incumbent when your whole nature is to tilt against the system that you now control. Trump is much better as an insurgent challenger. So he is always going invent something to be against.

Now, on the merits of rule of law, I`m a conservative Republican, but I deeply oppose Donald Trump. I think he has violated a lot of things. But the rule of gravity in our system is, the president has a long leash.

In the old days, they were expected to behave in a certain responsible manner, and have shame which would police their behavior. Well, Trump has no shame. So, in our system, the best way to fix whatever his legal stuff is, is to throw him out of office at the ballot box.

Otherwise, you get kind of this squabbling, which is good fodder for us junkies on each side to watch endlessly, but the bottom line is the election. And don`t -- it`s very much a wide spread from what Trump tweets to what he says, whether it`s a created thing like Obamagate or whatever, to move the focus of the election on to Joe Biden.

MELBER: Yes.

MURPHY: That`s what this is all about.

MELBER: And, briefly, with the pandemic, how does a virtual campaign shape this? Do you see an obvious beneficiary to that?

MURPHY: Well, yes, that`s a great question.

And it`s really hard. We have never been here before. It`s been very hard for Joe Biden to find a platform. You know, Donald Trump, being president, has a platform. Governor Cuomo in New York has kind of, with appropriate reasons, seized a platform.

And Biden is kind of being crowded out. So, the incumbent thing on his campaign is to find ways to get Biden into the fight here and keep the heat on Trump.

The big question will be the conventions. Donald Trump needs a room full of adoring supporters. That`s going to be tough in the pandemic era, even as we slowly start to open up as the numbers get better.

So, my guess is, that will be the next big campaign fight over the Democrats saying, we`re being savvy about public safety, while you`re putting cops and first responders at risk by trying to put 10,000 people in an arena in Charlotte. That will be the next fight.

MELBER: Right. And that is going to shape up to be a political cultural debate of epic symbolic proportion.

MURPHY: Yes.

MELBER: Mike Murphy, good to see you, sir.

MURPHY: Thank you. Thanks for having me.

MELBER: Thank you.

Up ahead: how a Trump ally ended up with a billion-dollar contract and why it`s raising such major questions -- when we come right back.

(COMMERCIAL BREAK)

MELBER: News tonight about the Trump administration giving a major border wall contract, the largest so far, not just to any random person who asked for it, but to a FOX-friendly Trump ally who happens to be under investigation.

The contract worth $1.3 billion -- that`s a lot of commas -- to build basically 42 miles of fencing. "The Washington Post" reporting that after - - quote -- "Its initial bids for border contracts were passed over, the company`s CEO, Tommy Fisher, cut a direct path to the presidency by," yes, praising him on FOX, AKA, cable news.

(BEGIN VIDEO CLIP)

TOMMY FISHER, PRESIDENT AND CEO, FISHER SAND & GRAVEL: And we really believe with our patent-pending system, we can bring sexy back to construction.

The president will -- if he allows to us play in and our team of Fisher Industries to play, I guarantee you, no different than Tom Brady, once we get in, we never come out. Hopefully, the president will see this as well.

SEAN HANNITY, FOX NEWS: I don`t know if you heard about this contractor that said can he build the whole wall for a lot cheaper than anybody else and get it done by 2020. Are you aware of that?

TRUMP: Yes, I am. We`re dealing with him, actually. It`s Fisher. Comes from North Dakota.

(END VIDEO CLIP)

MELBER: Now, full credit for the Justin Timberlake bringing sexy back reference.

But that may not be enough to clear out the big questions. The CEO discovering what others have found here, that there can be scrutiny when you get rewards, the company under investigation already by the Pentagon`s inspector general. That`s for an earlier government contract, the probe still ongoing.

(COMMERCIAL BREAK)

MELBER: That`s our show for tonight. Thanks for watching.

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

And keep it here right now on MSNBC.

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