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MTP Daily, Transcript 2/10/2017

Guests: John Yoo, Eliana Johnson, Tom McClintock, Aditi Roy, Ken Dilanian, Eliana Johnson

Show: MTP DAILY Date: February 10, 2017 Guest: John Yoo, Eliana Johnson, Tom McClintock, Aditi Roy, Ken Dilanian, Eliana Johnson

CHUCK TODD, MSNBC HOST:  Yes, it`s Friday.

Does repeal and replace suddenly have a new meaning?  Tonight, hitting the wall.  After a three-zero decision against his travel ban, what will it take for President Trump to pivot after this latest setback? 

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  Ultimately, I have no doubt that we`ll win that particular case. 

(END VIDEO CLIP)

TODD:  Plus, --

(BEGIN VIDEO CLIP)

CROWD:  Do your job.  Do your job.

(END VIDEO CLIP)

TODD:  The winter of discontent. 

(BEGIN VIDEO CLIP)

CROWD:  Get him out.  Get him out.

(END VIDEO CLIP)

TODD:  Why the anti-Trump protest ground game is coming faster and fiercer than we`ve see in a long time. 

And our two different world leaders are taking different paths to navigate an America led by Donald Trump. 

This is MTP DAILY and it starts right now. 

Good evening, I`m Chuck Todd here in Washington.  Welcome to MTP DAILY.

It does appear the setbacks are piling up early right now for the new Trump White House.  And if protests at Republican town halls are any indication, there`s growing anxiety over the Trump presidency, as his team battles blowback from the courts.  Some ethical missteps, policy confusion and new allegations of improper contact with, guess who, Russia.

Folks, every administration has its growing pains at the beginning and they adapt, they change.  Is Trump`s White House capable of doing that?  Is the president comfortable doing that?

This news just in moments ago.  A senior administration official says the White House does not plan to take their case on the travel ban all the way to the Supreme Court.  Instead this official says the White House is focused on defending the order on its merits, likely before a federal district court.    We`ll explain that in a few minutes.

Today, at a White House press conference with the Japanese prime minister, we saw a president Trump not quite ready to acknowledge that his travel ban needs to be, to borrow a phrase, repealed and replaced.

Here`s the president answering a question about the legal setback and that has derailed that executive order. 

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATESA:  We`ll be doing something very rapidly, having to do with additional security for our country.  You`ll be seeing that sometime next week.

In addition, we will continue to go through the court process and, ultimately, I have no doubt that we`ll win that particular case. 

(END VIDEO CLIP)

TODD:  So, right now, it certainly looks as if the White House is moving towards a strategy that may be, fight in the courts here but addendum over here.  They`re not quite at repeal and replace there, even though some of his advisors are.

Court cases take time.  And administration officials tell NBC News that the Trump White House is rewriting the travel ban as a possible way to free it from its current state of legal purgatory.  Perhaps the new draft is what Mr. Trump was -- is hinting at when he said the White House is doing something next week.

Then, again, we have news that they want to argue the merits of the legal case which, in itself, no matter how the federal court rules, will get appealed to the circuit.  It will probably end up in the Supreme Court.  Is that something that they want to spend this much time and political capital on? 

Folks, this isn`t a president, though, who is comfortable apologizing or even publicly admitting when something goes wrong.  Bit his actions sometimes do speak louder than his words.

During the campaign, he made two major course corrections.  The first was when he fired campaign -- the first campaign manager, Corey Lewandowski.  And the second was when he fired Lewandowski`s replacement, Paul Manafort.

Sometimes those course corrections are messy.  Other than apologize for, say, the birther issue or insulting a judge or apologize to a gold star family, he simply stops talking about them.

Often, these pivots take arguably way too long, but he does do it eventually.  So, ultimately, watch what the president does with this travel ban over the next week or longer.  It may not match what he says or said today.

I`m joined now by John Yoo, who serves as a deputy assistant attorney general in the office of legal counsel at the Department of Justice, during the Bush 43 years.  He is now a professor at U.C. Berkeley and a scholar at the American Enterprise Institute.  Mr. Eye, welcome to the show, sir. 

JOHN YOO, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. ATTORNEY GENERAL:  Hey, Chuck, thanks for having me back. 

TODD:  So, I know that you`ve been looking at the ruling carefully.  I`m curious of what you -- what you believe -- what you think of the White House decision right now, according to our breaking news, that they want to, instead, OK, go argue the order on the merits.  Go have a trial in federal court in Washington.  What do you make of that decision? 

YOO:  That`s good news for the country and for the Trump administration.  It`d be better news if, as you said earlier in your lead-in, the Trump administration withdrew the executive order entirely.  Let everyone who has a visa in.  Let all the green card holders back in.

[17:05:07] And then, issued the new order that was more modest and more carefully done to take into account the criticism that the Ninth Circuit and the trial judge here levied against the order. 

TODD:  What did you think of that criticism?  I mean, you know, you`ve been somebody that has argued for expanded presidential powers in the past.  Was -- what did you make of the ruling? 

YOO:  I think some of it was a stretch.  For example, the fact that Washington state had what we called standing to bring the case in the first time.  Also, the courts stretched, in the idea that it could look at the motive, perhaps religious in nature, behind the president`s order.

But I think the court was on solid ground when it said that the order went too far by stripping away the right of green card holders to come back into the United States without some kind of hearing.  I think that`s fairly subtle and well within the law.

The court also, I think, might have stretched a little far to say, people who might have come into the country who had visas but weren`t here before, also had some kind of right to come into the country.

But the -- I think the main point is there is a hard legal issue here between the president`s power, under the immigration laws, to suspend immigration.  But also, immigration laws requirement that they not be administered in a way that discriminates. 

TODD:  Well -- and that`s what I was going to ask you.  And that, to me, has always been the trickiest part to defend for the administration.  Because if you look at the specific law in 1965, it seems to bar what he did. 

YOO:  Yes.  The fact of the matter is you have two statutory provisions, both passed by Congress in different years.  The one, the right of the president to suspend the entry of "a class of aliens."  Quote, unquote.  The other, don`t discriminate against people based on base, national origin, gender.

This executive order brings us both into conflict.  And I don`t blame the district judge here or the circuit court from saying, look, we`re going to stay the executive order until we have time to have a real full argument and case and, finally, a decision on the merits. 

That`s all this has been about is just a temporary holding off on --

TODD:  Right.

YOO:  -- on executive orders so we can have a real case. 

TODD:  Walk me through the timeline.  How long do you think it would take to argue this case on the merits and get it -- and let`s be realistic?  Federal court, then circuit, then Supreme Court.  If this is how this goes.  What is that time?  What is a realistic time line?

YOO:  Look, you know, the Supreme Court and the lower courts can get discussions through fast.  I mean, you`re -- you may remember Bush versus Gore.  The Supreme Court was able to go from trial court all the way up to the Supreme Court in a month.  But that`s extremely unusual.

A normal course would take years.  But something like this that`s of importance to the government, where the legal issues are pretty clear, I think it would -- could be a few months.

But, I`d be very surprised if it could get all the way to the Supreme Court by the end of the spring. 

TODD:  Let me ask you one other final question here.  And that is, they -- the rights of visa holders.  Do you believe that -- people who have never been in this country but have a visa to travel here have less rights than people who regularly travel here on a visa and have been here before?

YOO:  Yes.

TODD:  Is there a difference there?  There seems to be some debate about that. 

YOO:  Yes.  No, that`s a good question, Chuck.  And that is the real part, I think, of the lower court opinion here, the Ninth Circuit case, that was a stretch was to say they thought it was pretty solid that visa holders outside the country, who`ve never been to the United States and have no connection to the United States, had a right to come into the United States.

That was on a par with people who had green card holders who already have been here, had a relationship here.  And the courts have said have a right to come back without -- or at least have a hearing before they`re barred.

So, I think there is difference in the way the law treats them.  So, I think -- that`s what I meant when I said the Trump administration could withdraw the order and issue a new one that was more careful that was just focused on people who might be coming from those countries who`ve never been here before.  And that`s one where I think the courts might uphold the administration. 

TODD:  And do you get a sense, from anybody you`ve talked to, that they are leaning in that direction or that the president`s not there yet? 

YOO:  Well, the sense you get from people, I think within the administration, is that they`ve -- they know they`ve suffered a setback.  And I think they`re trying to pull back the order and to -- but I think the president doesn`t want to look like he`s backing down or that he`s ever lost.

But the fact of the matter is, if he`s going to be president for the next four years, he`s going to be in court a lot.  And he`s going to lose a lot of cases.  No president wins -- you know, has a thousand batting average in court. 

TODD:  That`s for sure.  John Yoo, former assistant attorney general, back in the office of legal counsel in those days.  Appreciate you coming on and sharing your views, sir.  Good to talk to you. 

YOO:  Sure.  Thanks, Chuck. 

TODD:  So, let me bring in the panel.  Chris Cillizza, a Friday staple these days, MSNBC Political Analyst and the Fix boss at "The Washington Post."  I just throw that out there to make sure --

CHRIS CILLIZZA, MSNBC POLITICAL ANALYIST:  (INAUDIBLE.)

TODD:  -- we`ll see you there on Friday.

CILLIZZA:  I just miss here.

TODD:  Yamiche Alcindor, National Reporter for "The New York Times" based here in Washington, D.C.  And Eliana Johnson, National Political Reporter with Politico.

[17:10:01] OK.  We know they`re not going to the Supreme Court to try to lift the temporary ban, Eliana.  But it seems like they`re not -- this White House is not yet at repeal and replace yet. 

ELIANA JOHNSON, NATIONAL POLITICAL REPORTER, POLITICO:  Yes.  I think they haven`t determined exactly what they want to do, but they certainly realize, I think, that the slap dash process by which the E.O., the executive order, was put together impacted its content and has gotten them into some trouble.

Trump may not be yet at a place where he wants to, essentially, publicly admit that he made a mistake which he would do if he were to rescind the executive order and sign a new one.  He may be there next week.

TODD:  Yes.  It is this -- it seems -- you know, remember, he spent a lot of time during the campaign, Yamiche, talking about how incompetent most politicians were.  And how smart and competent that he and other business leaders were.

Everything about how this order was done screams of inexperience.  Not just -- it`s a -- look, we`ve had plenty of inexperienced presidents.  But he was surrounded by people that hadn`t done this before either. 

YAMICHE ALCINDOR, MSNBC CONTRIBUTOR:  This screams of inexperience.  But I think it`s -- what`s key here is whether or not he will ever admit that he loses.

This idea -- in the last year that I covered presidential politics, I think what I took away from Donald Trump is that he does not like to lose and that he has people in his mind that are winners.

And those are the people that he has around him.  Those are the people that he`s assigning to his cabinet.  That`s how he explains it to people when he says that he`s bringing in Goldman Sachs people because they`re winners.

So, this idea that Donald Trump is going to sit on T.V. next week and say, I actually made a mistake.  And I`m going to take office -- I`m going to take back this order and issue a new one just doesn`t seem like something that I`m going to see. 

TODD:  He won`t ever do the politically expedient thing.  And not just -- look, I understand that you don`t want to be expedient in -- because you don`t want to look like you`re sacrificing your principle.  But, look, if you can`t ever admit a setback or a mistake, you`re not going to succeed in this job.

CHRIS CILLIZZA, MSNBC CONTRIBUTOR:  There`s a zero percent chance he`ll go out and say, to Yamiche`s point, oh, you know what?  Well, we -- this didn`t -- we didn`t role this out like we should.  You do have to find ways, though, Chuck, to say, look, we did it this.  We`re going to adjust it.  Right?  We`re going to make a few tweaks.  Even if it`s totally new.

I mean, no politicians, certainly no president, likes to say, ah, that thing we just did, we screwed up.  Barack Obama didn`t like to do it.  No one likes to do it.  None of us like to do it.  But you have to find ways to do it.

John Yoo`s point is the right one.  In four years, there are going to be times in which, no matter even with the best of intentions, even if he had -- to Eliana`s point, he didn`t do this.  But let`s say he had done his due diligence here.

TODD:  Right.

CILLIZZA:  There is still going to be situations in which you run afoul of the courts or a court disagrees.  You have to find ways to say, --

TODD:  Right.

CILLIZZA:  -- politically, you know, you can`t just declare victory.

Can I make one other quick point?

TODD:  Yes.

CILLIZZA:  At 1:30 today, in the press conference with the Japanese prime minister, Donald Trump was asked about this.  And he says, well, we`re thinking we`ll make an announcement next week what we`re going to do.  But we`re going to go to the Supreme Court.  We`re going to repeal it.  We`re going to win. 

Then, at your show, Chuck, it starts at 5:00, he`s now --

TODD:  Well, he would argue that we were going to -- no.  That arguing the full merits of the case.  I think he would say is, hey, we`re pursuing the court route.  We`re not going to the Supreme Court yet. 

CILLIZZA:  I sort of -- look, I watched it.  Maybe just the first impression.  But I would say I do think this -- I feel like there`s a huge disconnect between -- he sometimes will say things publicly and hours later, we`ll hear the Trump administration says that actually what he said isn`t true or they`re not doing it. 

TODD:  And I think, Eliana, the frustration in this town, particularly among Capitol Hill Republicans in general is, simply, they -- he just makes things harder than they need to be.  And it -- and it always -- because he personalizes all of this.  I mean, he is now personalizing the executive order as if, somehow, the courts rejected him.  And I think that he`s got to somehow get that out of his head.

I think that`s just a fact with this president that is never going to change.  There`s going to be no pivot to depersonalize Donald Trump.  But I think you`ve hit on an important point which is the people around him.

Inexperienced presidents are not a new thing.  Bill Clinton was inexperienced.  Barack Obama was inexperienced.  But Bill Clinton got rid of Mack McLarty who came with him from Arkansas.  Didn`t have government experience.  Barack Obama surrounded himself with Rahm Emanuel and John Podesta.  People who really knew the inner workings of the federal government.

Trump may come to that realization.  I think the question is when.  Reince Priebus has never, you know, run the federal government, run a White House before.  And neither have his other senior advisors, Jerad Kushner, Steve Bannon.  They just haven`t.  And so, I think the question people are starting to ask is, when does he realize he may need somebody who knows the way Capitol Hill works, the way the White House works? 

TODD:  Well, the assumption has always been that`s Mike Pence. 

ALCINDOR:  That is the assumption.  And I think that that`s what got a lot of Republicans to back him.  This idea that -- I think that`s also what got voters vote for him.  When I talked to people, they said OK, you know, he`s a little brash.  He`s kind of unexperienced.  We can kind of let some stuff go because he seems like he might not know what he`s doing.

[17:15:09] But Mike Pence is going to be here to kind of steady the ship.  And I guess it remains to be seen whether or not Mike Pence is going to, kind of, convince him to maybe do some politically expedient things. 

TODD:  I`m going to preview something we`re going to talk about later in the show.  But I think we`re going to find out a lot about Mike Pence`s influence, depending on the future of Mike Flynn.

CILLIZZA:  Yes.  Yes.

TODD:  We talked about that earlier.  It`s the Russia thing.  I don`t want to get bogged down now.  We`re going to do it later in the show.  But I think that`s going to tell us a lot about that. 

CILLIZZA:  The thing that is hard is Eliana`s right.  He could bring in a more experienced, quote, unquote, "team."  It doesn`t matter who he brings in if he doesn`t listen to them.

TODD:  Right.

CILLIZZA:  And that`s always the danger.  He could surround himself with the most -- the James Bakers of the world.  And people who have done this in Republican circles for a very long time.

But if, ultimately, they say, Mr. President, can you not just watch cable and then tweet at night or very early in the morning?  And he says, I got to be me.  Which the campaign would suggest that`s his M.O. and he`s a 70- year-old man who I don`t think is going to change how he operates.  It doesn`t matter who -- it doesn`t matter who.

ALCINDOR:  But it`s also -- he`s also personalized in that he`s been talking about so-called judges --

TODD:  Yes.

ALCINDOR:  -- and doing things that are also making it very personal and making it hard for him to give this up. 

TODD:  The irony is his best 11 days in the campaign with the 11 days that they seem to take away, his phone.

CILLIZZA:  Yes.

TODD:  Tweeting.  The last 11 days of the election. 

Anyway, you guys are sticking around for the hour.

Coming up, Tea Party lack protests from the left.  Party like it`s 2009, making themselves heard at Republican town halls.  From Jason Chaffetz in Utah to California`s Tom McClintock.  Congressman McClintock will join me to talk about the reaction he had to this growing opposition.

Stay with us. 

(COMMERCIAL BREAK)

TODD:  Welcome back.

In the ongoing battle over confirming President Trump`s cabinet, Republicans and Democrats in the Senate finally agreed on something.  They agreed to take the weekend off and go home.  The Senate is skipping a scheduled Saturday session after voting to confirm Tom Price as Health and Humans Services secretary around 2:00 a.m. this morning.  But rather than work over the weekend, votes are now scheduled on Monday for the treasury nominee, Steven Mnuchin, and the Veteran`s Affairs pick, David Shulkin.

And there`s one on Tuesday for the small business administrator, potential nominee Linda McMahon.  All three will likely be confirmed.  Though, you can expect at least some Democrats to vote no.  Through just nine confirmations, there are have already 241 nays on President Trump`s nominees. 

According to "The Washington Post," that is more than the nominees of any other president, except one, Barack Obama.  And there are still 12 more confirmation votes to go.  So, it`s likely, by the way, that there will be more no votes here or at least close to the Obama record on the GOP side.

Interesting to note, by the way, on Monday`s V.A. confirmation vote.  Since the position was made cabinet level in 1989, every nominee has been confirmed with no opposing votes.  And President Trump`s nominee, David Shulkin, would be the first V.A. secretary who never served in the armed forces.  So, he`s not a veteran.  I`m guessing he`s going to get some no votes.

[17:20:01] Coming up, we`ll take a look at backlash some members of Congress are starting to face back home.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REP. JASON CHAFFETZ (R), UTAH:  So, president Trump nominated --

CROWD:  Do your job.  Do your job.  Do your job.  Do your job.  Do your job.

(END VIDEO CLIP)

TODD:  Welcome back.

That was the scene last night at Congressman Jason Chaffetz`s town hall in a Salt Lake City suburb.  And he`s not the only Republican facing a tough crowd these days.  Congresswoman Diane Black of Tennessee was grilled by constituents about repealing the Affordable Care Act last night.  Here`s what happened when she left that town hall.

(BEGIN VIDEO CLIP)

CROWD:  (INAUDIBLE.)

(END VIDEO CLIP)

TODD:  In Georgia, activists packed an office hours` event for three Republicans, Senators Perdue and Isaacson and Congresswoman Jody Hice.  But only their aids were there and the crowd was not happy about that.

(BEGIN VIDEO CLIP)

CROWD:  Shame, shame, shame, shame, shame.

(END VIDEO CLIP)

TODD:  And in Cincinnati, today, protesters gathered outside a luncheon where Senator Rob Portman was set to speak. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I`m a constituent, too.  Listen to me. 

CROWD:  You should have said no.  You should have said no. 

(END VIDEO CLIP)

TODD:  But Portman never made it to that event.  His spokesman said he was stuck in D.C. because of those Senate votes that we told you about.  As we`ve been saying, these protests at congressional events feel a lot like the Tea Party ones we saw in August of 2009.

But that was August.  These are coming a lot faster and appear to be a lot fiercer than those were back in 2009.

Republican Congressman Tom McClintock was confronted by protesters at his town hall last week.  He joins me now.  Congressman McClintock, thanks for coming on the show. 

REP. TOM MCCLINTOCK (R), CALIFORNIA:  Thanks for having me. 

TODD:  So, we all saw the video.  I think it was on a Saturday and it was making the rounds on social media.  Let me ask you this.  A week later or nearly a week later, what did you learn from that episode?  What did you learn about, sort of, where your district is, where the country is and what this all means?

MCCLINTOCK:  Well, I think there are a lot of people that are very upset that Donald Trump was elected president because they disagree with him very vigorously.  I tried to remind them, there were many Americans who disagreed just as vigorously with Barack Obama.

Interestingly, they`re not mad at Donald Trump because he`s broken any campaign promises.  They`re mad at him because he`s keeping all of his campaign promises.  And, of course, that`s what the election was about.  In a real sense, that`s what the last four elections have been about. 

TODD:  Let me ask you this.  Do you feel a different pressure in responding to your constituents, even though while you carried your district very comfortably, Donald Trump carried it with a little less vote but he carried your district?  But California, in general, went so decisively blue.

Does that make you think, well, maybe I have to moderate -- I should moderate my stance on X or Y?  How much of that impacts you? 

MCCLINTOCK:  Well, I think it`s a reminder that we`re ultimately going to be judged on the outcome of the policies that we enact.

You know, there`s no way, ultimately, that you can spin the economy or spin the health care system.  Everybody has an up close and personal experience with it.  They know what`s going on in their own lives.  And any politician or pundit trying to convince them otherwise is going to look rather foolish.

So, what it means is we`ve got to deliver.  I think that Nancy Pelosi and the Democrats made a big mistake in imposing Obamacare without thinking through, very carefully, how it would affect the vast majority of Americans.  That`s why Nancy Pelosi is no longer speaker, and that`s why Donald Trump, not Hillary Clinton, is president.

[17:25:04] We need to be just -- we need to take that example and be very careful that the policies that we provide actually mean an improvement in both the economy and the health care system for the vast majority of Americans. 

TODD:  Well, let me focus on health care a minute because I think what is interesting is how it does seem as if that is -- at least at the town halls we`ve seen so far, that is the motivator.  Right.  It is the constituents that are worried about the changes in the health care law which is, frankly, what we saw eight years ago.  In 2009, in the reverse, it was constituents as more from a conservative point of view concerned about the changes that were coming.  Health care is a very personal thing. 

MCCLINTOCK:  Right. 

TODD:  What -- how is that going to impact how you -- what you -- the speed with which you`d like to see a change in the health care system?  We`re having this whole debate.  How fast do you repeal, replace, repair, et cetera?  Where are you on this? 

MCCLINTOCK:  Well, as soon as we can.  But be sure that we`re right because, again, we`re going to be judged on the outcome of these policies.

In the last four elections, this has been one of the most prominent, if not the most prominent, issue before the American people.  And it has produced a profound political realignment towards the Republicans.  Now, we`re going to be judged by the policies that we enact and we just got to get it right. 

TODD:  What is getting it right to you?  What is the -- what are some things that you`re worried may go in the wrong direction? 

MCCLINTOCK:  Well, the ultimate vision for health care, that the Republicans put forth in these elections, is to assure a very wide selection of health plans, restore the freedom of individual families to shop around for the best policy that best meets their needs.

And then, to use the tax credits, we currently lavish on corporations, to impose a plan for their employees.  Give those same tax advantages to the employees, themselves, so they can select a plan not only that best meets their needs, but they can own, that they can take from job to job and that they can fire if it no longer serves their needs.  So, a wide range of choices and within the reach of families. 

TODD:  And does it have to have -- have to cover preexisting conditions, in your mind?  And have to at least allow families to keep their children on all the way up to the age of 26? 

MCCLINTOCK:  Well, what we have to understand, the problem of preexisting conditions, this was brought home to me years ago when a fellow left his job, therefore lost his employer health plan.

TODD:  Right.

MCCLINTOCK:  Went into the private sector to find one.  Couldn`t because he had a preexisting condition, bursitis.  He says, I don`t care about the bursitis.  That`s just a nuisance.  Write me a plan that covers everything else and I`ll take care of the bursitis myself.

And the response was, we`d love to write you such a plan but we can`t.  It`s against the law.  You know, if you allow the freedom so that people can exempt their nuisances and separate those out from the things that could actually bankrupt or kill them, now you`ve reduced that pool to a much more manageable level.  And then, the same kind of assigned risk pools we currently use, for example for auto insurance, could be used for that purpose. 

TODD:  But then, how do you not punish the person that has the preexisting condition in a high-risk pool?  Why punish them with a higher insurance rate just because of their DNA? 

MCCLINTOCK:  Well, insurance covers risk.  It doesn`t cover certainty.  Why is it that a health plan can only charge you one percent of the cost of a serious illness?  It`s because you only have a one percent chance of contracting that illness.

If you`re at 100 percent, that`s not risk, that`s certainty.  The assigned risk pools spread that burden across the consumer base.  They`re very successful in assuring that those who are otherwise can`t get insurance, for example, for automobiles, still have access to that market. 

TODD:  Right, but and it`s hard to make that comparison.  The people that can`t get high risk auto insurance is because they`re bad drivers or they`ve had -- you know, it is -- it is -- when you`re talking about health and preexisting conditions, preexisting can come -- you`re born with an ailment.  I mean, that is -- that`s what I mean.  It`s, like, why penalize -- why create a similar system in insurance?  You`re paying your own penalty for being a bad driver.

MCCLINTOCK:  Yes.  Well, Chuck, again, I agree with you.  All I`m saying is that the assigned risk pool can spread that cost, that risk, across very wide base to assure that those who do have serious preexisting conditions can obtain the insurance that they need. 

TODD:  But you wouldn`t have those risk pools include healthy people?  Include people without preexisting conditions? 

MCCLINTOCK:  Well, no.  The whole idea of a risk pool is to spread that cost across the overall consumer base. 

TODD:  OK.  So -- but -- I -- there has been some talk that, no.  You put people with preexisting conditions in a high-risk pool system, separating them out from the general population.  You`re not suggesting that?

MCCLINTOCK:  Well, what it does is to then give them the broad subsidies that they need to be sure that their health insurance is still within their financial reach. And again, you boil that problem down, first in my view by assuring that those who have nuisances like -- can still get insurance and aren`t being blocked because of that nuisance affliction.  If you`re over 45 as I am, long way over 45, everybody`s got some preexisting condition.

TODD:  All right.  One last question, advice to fellow members of congress who are ducking town halls.  I`m sure you didn`t have a lot of fun at some of these town halls, but you did it.  Some of your colleagues aren`t doing it, what would you tell them?

MCCLINTOCK:  Well, be careful because emotions are running very, very high.  I`ve done over 100 town hall meetings over the entire span of the tea party movement and occupy Wall Street.  This was the first time that a police department determined that I need an armed escort to safely leave the venue.  So I`d urge them to be very careful.  On the other hand, I find town halls to be very, very important in hearing the concerns of constituents.  I intend to continue to do them.  It`s an important part of that interaction between a representative and a constituency.

TODD:  All right.  Congressman Tom McClintock, Republican from California.  Appreciate you coming on and sharing your views, sir.

MCCLINTOCK:  Chuck, thanks for having me.

TODD:  You`ve got it.  Still ahead, it turns out national security advisor Mike Flynn may have talked to the Russians about those sanctions after all.  He now says he can`t be certain that the topic never came up.  Well, that topic is definitely coming up right here in a few minutes.

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TODD:  If it`s Sunday, I`ll be having an exclusive with Senator Bernie Sanders on Meet the Press.  Is he the unofficial leader of the new Democratic opposition?  Up next on MTP daily, when a no becomes a maybe and probably means a yes, why it now looks is if national security advisor Mike Flynn may well talked about sanctions to the Russians before President Trump took office.  That would be breaking the law.  But first, Aditi Roy with CNBC Market Wrap.

ADITI ROY, CNBC MARKET WRAP:  Thanks so much, Chuck.  And happy Friday to you.  Stocks climbing to record highs for the second day in a row.  Investors encouraged by a spike in oil prices and President Trump`s promise yesterday to unveil a new tax plan.  The Dow rising 97 points, S&P gained 8 points, the NASDAQ added 19 points.  Rising oil prices gave the energy sector a boost.  Benchmark U.S. crude spiked .86 cents or 1.6 percent to $53.86 a barrel.  Shares of Sears jumped 30 percent on news that troubled department store chain will slash $1 billion a year by selling more locations and cutting jobs.  And that`s it from CNBC, first in business worldwide. 

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TODD:  Welcome back to MTP daily.  Turns out according to a U.S. intelligence official, President Trump`s national security advisor did discussed sanctions with the Russian ambassador before the president took office.  That`s despite what he told the vice-president and the White House chief of staff who both defended him on this issue on TV during the transition.

(BEGIN VIDEO CLIP)

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES OF AMERICA:  They did not discuss anything having to do with the United States` decision to expel diplomats or impose a censure against Russia.

UNINDENTIFIED MALE:   I have talk to General Flynn, none of that came up.  The subject matter of sanctions or the actions taken by the Obama administration did not come up in the conversation.

TODD:  So there was no challenge of American policy currently by Mr. Flynn with the Russian ambassador?

UNINDENTIFIED MALE:  None.

(END VIDEO CLIP)

TODD:  So there you go, both the vice president and the White House chief of staff out there defending him.  U.S. intelligence official tells NBC News he was surprised when Flynn initially denied discussing the sanctions on Russia with the ambassador during the interview with The Washington Post.  A spokesperson for Flynn later seemed to walk back that denial telling the post, Mr. Flynn couldn`t recall whether or not sanctions were talked about.  Folks, this could be another strike against the already divisive national security advisor in the West Wing.  People close to the president have told me he doesn`t like when folks are accumulating bad press and Flynn has accumulated his share of bad press.  The question now is how many strikes does Flynn get with the president?  Joining me now is NBC`s national security reported, Ken Dilanian.  So, Ken, I want to get at to why, how the government knows so clearly what Flynn said to the Russian ambassador?  It`s not as if they`re going off on he said, he said, there`s tapes.  There`s wiretaps, explain.

KEN DILANIAN, NBC NATIONAL SECURITY REPORTER:  Sources haven`t been particularly clear on exactly how they know this.  Are there transcripts, are there notes from conversations?  But what seems fairly evident is that the FBI is monitoring the conversations of the Russian ambassador of the United States.  Particularly at a time, Chuck, when they`re investigating whether Russia is interfering with the election, hacking the Democrats.  And what sources are remarking to me today, it`s amazing that Mike Flynn wasn`t aware of that, or thought that he could represent one thing when the facts evidently suggested another thing.

TODD:  So there`s a couple of troubling aspects to this.  On one hand, there`s the fact that he didn`t realize this, what you just brought up.  On the other hand, there`s the fact that somebody in the administration somewhere has decided to leak all of these out.  That`s also, to some might be disconcerting.

DILANIAN:  Well, we`ve had a change in administrations, right?  So there are a lot of Obama administration officials who are briefed on this matter, who may be talking now about this.  They`re generally concerned.  I mean, I think from what you played here, it`s very clear that Mike Flynn has a political problem.

TODD:  Right.

DILANIAN:  But the other question I was trying to look into today, does he have a legal problem?  And that`s less clear.  I mean.

TODD:  We`re talking about -- where he may have been -- it`s a Logan act, its 1799, right?  When it was put in or something -- late 18th century, never really been used to prosecute anybody.  And even I saw Ambassador Mike McFaul, who`s no fan of Mike Flynn or this, defended saying, you know, it is really hard to know when you cross that line in the Logan act if you`re just trying to have courtesy calls.

DILANIAN:  That`s right.  And many analysts today had said it wouldn`t have been inappropriate necessarily for Mike Flynn to discuss the issue of sanctions with the Russian ambassador.  Or even to say, hey, we`re going to look at this, when we come in it`ll be a new policy.  What the political issue though and what`s got Democrats really angry about this is the notion that was there a secret deal cooked up to lift sanctions on a foreign adversary that helped the Trump administration get elected allegedly by the intelligence community?

TODD:  Well, that`s it.  And the other part of this, correct me if I`m wrong, had to do with the fact that the -- the reason there was skepticism about the way this sanction stuff was held is that the Russians never responded.

DILANIAN:  Right, exactly.

TODD:  And that`s what -- that was the red flag that got apparently somebody in the government to say, what exactly did they -- what kind of conversation with the Russian ambassador had?

DILANIAN:  Right.  The United States expelled 35 Russian diplomats who they say were intelligence agents, and everyone expected Vladimir Putin to respond in kind, to expel some Americans, takes some action.  He took no action.  And then Donald Trump praised that move on twitter the next day.  And so that got people looking.

TODD:  All right.  I`m going to preview the conversation we`ve about to have with the panel.  But we did get an update, the president on Air Force One went back to visit the press cabinet with the first lady.  He was asked about the Mike Flynn story in The Washington Post and he said he hadn`t gotten to it yet.  Hadn`t seen it.  Offered nothing else.  No defense.  Nothing.  If I`m Mike Flynn, that would make me a little bit nervous.  Ken Dilanian, I know you`re reporting on the story, get back to work.

DILANIAN:  Great to be with you, thanks.

TODD:  You`ve got it.  Still ahead, why I`m obsessed with how two different world leaders are dealing with President Trump.  Stay tuned.

(COMMERCIAL BREAK)

TODD:  Tonight I`m obsessed with how other nations are approaching relations with the new unorthodox president of the United States.  In the last 24 hours, we saw two major countries take two very different paths in approaching President Donald Trump.  You could call one a warm hug versus a cold shoulder.  You could say the word of the day at the White House with the Japanese prime minister was flattering.  Prime Minister Shinzo Abe was very conciliatory toward President Trump.  Name-checking Trump Tower during their joint press conference, talking about new investments in U.S. infrastructure, even new jobs that would be invested by Japanese companies in the United States.  And of course, praising President Trump`s golf game before being whisked away for a weekend at the winter White House in Florida.  Compare that with President Trump interaction with Chinese president Xi Jinping.  The Chinese leader dodged the president`s call until he had assurance in writing that the U.S. would continue to abide by the One China policy.  Something President Trump seemed to question in December when he talked to the president of Taiwan.  Now the White House read out of Thursday`s call with the Chinese leader that President Trump agreed at the request of President Xi to honor our One China policy.  The difference in attitude between Japan and China may be an extension of how badly each country believes they need the United States.  One thing we know, other countries are watching closely.  Hoping to see what strategy appears to be more successful.  We`ll be right back.

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TODD:  Welcome back.  Time for the lid.  As I told you, the president and the first lady went to talk to reporters very quickly in Air Force One a few moments ago.  And President Trump told reporters that he is considering signing a new executive order on immigration.  One more go around with our panel on that.  I told you already the news on Mike Flynn.  The fact that he had nothing to say or he hadn`t seen that story.  All right.  We already went through this executive order.  I think we see the president`s getting there.  And he is prepared, and he talked about the expediency issue on that front.

CHRIS CILLIZZA:  Which is smart by the way.  He`s doing the politically smart thing to do.

TODD:  Absolutely.  They`re just getting out now.  We`re showing live pictures.  The Abe`s and the Trump`s landing together on Air Force One.  But I want to go to this Mike Flynn situation.  All of us have had experience spending time with Donald Trump, covering Donald Trump, one thing he is very aware of is what`s being reported in the press, Chris Cillizza.  According to this poll report he was unaware of this.

CILLIZZA:  I think it`s unlikely he`s totally unaware of it.  If I was Mike Flynn that poll report would make me very uneasy.  Look, Mike Flynn greatest.

TODD:  There`s no fake news.  There`s no Mike Flynn is a good guy.  None of that.

CILLIZZA:  Mike Flynn`s greatest asset has been from the start that he was one of the first and most loyal Trump supporter.  Like he introduced Trump at rallies toward the end.  At some point, I think Trump looks at this and says this guy, public relation wise, has literally been nothing but trouble since I picked him.  I don`t know if that -- could be reach.  But I would say, Trump is loyal until he isn`t any more, right?

YAMICHE ALCINDOR, THE NEW YORK TIMES:  He`s loyal until it kinds of something about people always talking about this person, or that person being perceived as an embarrassment to his -- to him, I think about Chris Christie.  I think about people who lobbied too much for the secretary of state job.  And then, we`re somehow ousted from the inner-circle.  So, Yeah, I think he`s loyal to a point.

ELIANA JOHNSON, POLITICO:  Well, what that means is he isn`t loyal.  He discharged people when they become a problem to him.

TODD:  You said he does hang longer than most politicians.  I mean, when it comes to political loyalty

JOHNSON:  I`m not sure if I agree with that.  You know, George Bush was criticized for taking too long to fire people, being hesitant to fire people.  So there are other politicians who prized loyalty and been very loyal in return.  Trump it seems to me has no problem not returning loyalty or rewarding royalty.

TODD:  Let`s go to who -- what this is really about.  I think this is potentially about the relationship with the vice president.

CILLIZZA:  Yes.

TODD:  The vice president and the chief of staff, he may not care as such about the chief of staff as it is the sitting vice president.

JOHNSON:  You know, Flynn has now imperiled and put two other important people in Trump`s close circle on the line and caused them public embarrassment.  So this is not only an embarrassment to Trump, but it becomes an embarrassment to Reince Priebus and to Vice-President Mike Pence, which I think puts Flynn in a pretty precarious position.

CILLIZZA:  Pence -- something to remember, I do think this matter in a sort of appearances matter in the world of Donald Trump.  Pence is a principal.  Now I don`t think that Donald Trump uses him as an equal, because I`m not sure a lot of people fit that, but I think he values Mike Pence more than your average staffer, even a senior staffer, maybe more than a cabinet nominee.  So it is clear that Mike Pence was told something that according to The Washington Post, where I know all three of those reporters, they`re great, nine sources -- intelligence sources say what`s not right.

TODD:  Yeah.

CILLIZZA:  Politicians do not like to go out and testify publicly for someone and then have the stool pulled out from under them.  And that`s certainly at least what it looks like happened here.

TODD:  And Yamiche, let`s go to another sort of -- what do you think about Washington, when you feed the beast to somebody, you know, and you fire somebody and you feed the beast, it can sometimes satisfy that beast for a while.  Mike Flynn is not popular with a lot of Republicans in this town.  There`s a strong assumption that including two members of the president`s cabinet when it comes to the secretary of state and the secretary of defense, let alone head of the senate armed services committee in John McCain.  There`s a political upside for the president here to dump him rather than keep him.

ALCINDOR:  There`s a political upside to kind of letting people know -- or I guess showing people, hey, you know, this guy did wrong.  And, by the way, like he`s somebody who is not well-liked.  He`s somebody who is seen as not really someone who a lot of people want to work with and, of course, he`s going to put them out there.  However, I guess I`m really interested to see how Mike Pence fits into this, mainly because when you look at the people that are close to Donald Trump, I think that he`s not someone that you think of as someone who`s going to spread fake news.  He`s not someone that goes to a Sunday shows, people are going to say, hey, we don`t want you this Sunday.  He`s someone that the administration can point to and say, well, Mike Pence is telling you something, you can believe that.  So I think that`s also -- I think a real big part of this.

JOHNSON:  Two things, when you talk about people who are very close to Donald Trump, Mike Pence is not always mentioned, and I think this is a test of how important is Mike Pence to Donald Trump.  Second thing, I think it`s not insignificant that Trump -- yesterday, semi-publicly overruled secretary of state Rex Tillerson choice for number two, Elliot Abrams, this is perhaps a way to reward cabinet secretary, Rex Tillerson, Jim Mattis, secretary of defense who have clashed with Mike Flynn at the National Security Council.

TODD:  But the firing of Flynn could launch a Russian feeding frenzy, maybe that`s it.  The administration.

CILLIZZA:  Yes.

(CROSSTALK)

CILLIZZA:  The Trump adminstration is in chaos.

TODD:  Right.

CILLIZZA:  One thing, Logan Act, yes, we`re talking about this.  How -- it`s always -- the conversation is not necessarily -- it`s in a gray area, right?  The conversation with those investors.  The saying you didn`t talk about something that was taped is the problem.

TODD:  That`s right.

CILLIZZA:  I mean.

TODD:  Fair enough.

CILLIZZA:  All this time.

TODD:  Well done.  We almost landed the plane basically on time.  And that`s we`re going to report back and say another on-time landing.  After the break, the British parliament funkadelic style.  Stay tuned.

(COMMERCIAL BREAK)

TODD:  In case you missed it, a very polite protest didn`t quite hit the right note with the deputy speaker of U.K. House of Commons.  Take a listen as pro-E.U. Scottish national party parliament members whistle their dissent during a Brexit bill vote

(BEGIN VIDEO CLIP)

UNINDENTIFIED MALE:  Order.

(END VIDEO CLIP)

TODD:  Oh, I love the anger.  So why Beethoven, yes, it was Ode to Joy.  Well, guess what, Ode to Joy has been the official anthem of the European Union since 1972.  On fact, historically, Beethoven 9th symphony has been used in major rallies around the world, to Tiananmen Square to the fall of the Berlin Wall.  I`m not sure there was whistling at some of those events though.  Still, this week musical protest in London did not sway the vote, which set the British government on track to set the two-year Brexit process as early as next month.  Ode to Joy to all of you.  That`s all we have for tonight.  We`ll be back Monday with more MTP Daily.  Sunday for Meet the Press. 

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