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The Rachel Maddow Show, Transcript 1/30/2017

Guests: Eric Lichtblau, Laurence Tribe, Bob Ferguson, Dahlia Lithwick

Show: The Rachel Maddow Show Date: January 30, 2017 Guest: Eric Lichtblau, Laurence Tribe, Bob Ferguson, Dahlia Lithwick

ANAND GIRIDHARADAS, THE NEW YORK TIMES: -- and I think there`s a immediate triage that needs to happen but I think there`s a deeper effort to things like the women`s march, things like this movement to actually go beyond speaking to the tribe and try to expand that tribe as hard as it is when you`re doing first aid.

CHRIS HAYES, "ALL IN", MSNBC HOST: Anand Giridharadas, thank you for joining us tonight. I really appreciate it.


HAYES: That is "ALL IN" for evening.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend.

HAYES: You bet.

MADDOW: And thanks to you at home for staying with us for the next hour.

The FBI was founded in 1935. Its founding director was -- say it with me now -- J. Edgar Hoover.

And for the first 37 years that the FBI existed, they never had another director. J. Edgar Hoover only relinquished control of the FBI when the universe pried it from his cold, dead hands.

In our system of government, judges get lifetime tenure but other than that, nobody else is supposed to serve for life. But J. Edgar Hoover served for life. He basically appointed himself FBI director for life.

And one of the ways that he was able to hold on to that job for 37 years, one of the ways he was able to hold on to that power for the length of his life is because politicians were terrified of him and for good reason. He kept files on all sorts of politicians and he was absolutely not above blackmailing politicians in order to keep him in line and keep himself in power.

So, that eliminated the threat that anybody was going to reach into the FBI from the outside and remove him as director. But he also had to manage the other direction. He had to make sure that he would never be toppled from within the FBI.

And, you know, it`s not like there wasn`t cause. It`s not like the FBI or J. Edgar Hoover himself were short on scandals, short on controversy for all those decades when he was in control. I mean, even just the fact that he was blackmailing politicians should itself had been a very large scandal. Whether it was the blackmailing or the stuff from his own personal life or FBI scandals dealing with the civil rights movement or anything else you can think of, I mean, you would think that something would have stuck to him. You would think that after almost 40 years on the job, something would have risen to the level that Hoover had to go.

But Hoover managed that internally. Hoover never let that happen because he kept his foot on the neck on every agent in that department for the whole time he was in charge. Yes, he attracted some loyalty from within the bureau, but anybody who wasn`t loyal, he quashed all internal dissent.

Famously, under J. Edgar Hoover, any FBI agent who expressed any disagreement with the director, any FBI agent who had any problem with the bureau or how the bureau was being run by Hoover, that agent would very quickly find himself promoted. That agent would get promoted specifically to Butte, Montana. J. Edgar Hoover`s FBI office, this one, in Butte, Montana, was where he exiled any FBI agent who challenged him, and he loathed any agent who criticized him. Hoover did that for decades.

Only problem with that system is that some FBI agents kind of liked Montana when they got out there. It`s nice. So, that makes for a lousy form of punishment.

Of course, the other problem, the bigger problem, the problem for all of us, was that by quashing all dissent, by literally exiling to Montana any critics of the director, that whole agency, that whole bureau suffered for almost 40 years from being in fear of and enthralled to one man`s singular vision, to the exclusion of all other ideas, and that is what happened at the FBI for the first 37 years of it existence while J. Edgar Hoover was running. J. Edgar Hoover finally died in 1972. He was director up until the day he died.

By the 1989, the FBI closed that office in Butte, Montana. Turns out they didn`t need it anymore.

And dissent, of course, is a tricky thing. I mean, dissent from outside, you can sometimes turn that to your advantage, right? You have the right kind of enemy, you can make yourself look the right kind of strong.

But internal dissent, it`s tricky, right? You sort of need internal dissent in order to stay healthy, in order to course correct when you`re getting something wrong, especially if you`re a big, powerful agency, right? You need there to be a certain amount of internal dissent and discussion, and challenging the people at the top or you won`t grow. You`ll get sclerotic. You will cease to be able to function at your best.

By its nature, though, dissent is intensely threatening to people in power, right? The people in power who the dissenters are complaining about. And so, it`s tricky. It`s a balance.

And the FBI under J. Edgar Hoover is the prototypical American government example of not handling that balance very well. That`s how you get a director for life. I mean, other agencies have tried to cure themselves against dissent that naturally grows inside big powerful institutions, and that`s why we have powerful whistle blower protection programs. That`s why in all sorts of agencies, even in all sort of private companies, there are sometimes means by which people can anonymously complain or anonymously report up the chain things that they think are dangerous or wrong.

At the U.S. State Department, though, they`ve got some things singular. At the U.S. State Department, thanks in part to the disaster that was the Vietnam War, the State Department in the early 1970s created a unique, protected channel for internal dissent.

It`s interesting. At the State Department, if you want to dissent, you are legally protected, the agency`s rules say you are protected, you cannot be punished for expressing your dissent. But at the same time, you`re not allowed to dissent anonymously. You put your name to it.

Any State Department employee can use this. It`s called the Dissent Channel within the State Department. It`s an overt thing. It is not something that frequently gets used but it does tend to get attention when used.

If you work at the State Department, or the USAID, and you file a cable or memo that says it is a Dissent Channel communication under State Department rules, that communication from you must go directly to the desk of the secretary of state personally and to the other top leadership of the department personally. You can completely get around the entire chain of command and go right to the top.

And once you do that, once you use the Dissent Channel, the State Department agrees explicitly that you will get a substantive response personally. You will get a response. Remember, you can`t file these things anonymously. You have to put your name on it.

But in exchange for sticking your neck out like that, they guarantee no reprisals. This is from the State Department rules. Quote, "Freedom from reprisal for Dissent Channel users is strictly enforced. Officers or employees found to have engaged in retaliation or reprisal against Dissent Channel users will be subject to disciplinary action."

So, this is, you know, the way the State Department has tried to handle it. It`s a unique thing at the State Department. It`s an important part of the culture of that institution. They allowed, they have carved out this basically extreme measure. You can take as an employee of that department, if you feel like you can`t get your voice heard through normal channels, you can stovepipe your opinions, your views, your concerns directly to the secretary of state.

And the Dissent Channel has been used over the years. It was famously used on the treatment of Cambodia at the end of Vietnam War. It used by Iraqi embassy personnel during George W. Bush administration about the prosecution of the Iraq war. It was used quite famously, last year, when 51 State Department employees all signed on to the same Dissent Channel memo complaining about U.S. policy in Syria, basically advocating that the U.S. go to war in Syria.

Dissent Channel is a rarely used thing. It sends up a flare when it happens. But the only way that system can exist is if everybody understands and abides by the key part at the heart of it. No reprisals.

You`re going to put your name on this, so it can be acted, and you must be responded to, but you can feel safe doing that because no reprisals. That`s the rule. That`s the principle. That`s what makes it work.

Here`s how the White House responded today when they were told that only 100 employees are signing on to a Dissent Channel message criticizing the new Trump Muslim and refugees ban.


SEAN SPICER, WHITE HOUSE PRESS SECRETARY: These bureaucrats have a problem with it? I think they should get with the program or they can go. Hold on, hold on. This is -- this is about the safety of America.


MADDOW: "Get with the program or they can go." The Dissent Channel within the State Department, they`re doing it right. The White House is doing it wrong, right? You`re not allowed to tell people to quit because they used the Dissent Channel, right? No reprisals, right?

Dissent is not an easy thing for anyone in power. It never is. This administration by their actions, they have generated an unusually huge amount of dissent, of a lot of different kinds from the various art, and some of the dissent is coming from within the government now as we are seeing at the State Department and as we are seeing with one very dramatic announcement that happened late tonight from the Justice Department. We`ll be talking about that in just a moment.

We, of course, are also seeing large and basically spontaneous demonstrations in the streets. Last weekend, it felt like a stunning development when the day after inauguration, D.C. was host to one of the largest marches that has ever happened in Washington, D.C., just a massive turnout in the nation`s capital that dwarfed the number of people that turned out the day before to watch the new president`s inauguration.

That was last weekend, and then, this weekend, it happened again. This weekend, it was in response to the religion-based travel ban and the refugee ban that the new president signed on Friday. This weekend again, thousands and thousands and thousands of people in marches and protests and rallies that were not planned for weeks in advance like the women`s march was, right?

These outpourings of dissent this weekend, these were organic, spontaneous, instantaneous, people flood it into the streets in major cities. We`ll talk about what happened at the airports in just a second, but I also think, it`s really interesting to note that people who don`t live in big cities were visibly galvanized around the country this weekend.

You know, we`ve been tracking on this show these organizing meetings and the events targeting members of Congress that have been organized by people working with the Indivisible guide. We`ve been watching that because it really seems to be mushrooming in terms of basically a channel for people to organize against the Trump agenda.

But look at this, look at the turnout. Do we have that? There we go. Look at this. This was this weekend`s Indivisible meeting in one congressional district in Oregon.

You see, this is -- what you`re looking at is a strange picture, is people poking their heads through open windows. The reason they are doing this is because this is what it looked like inside that meeting. People could not get in, with or without their dogs. This -- I think we`ve got another shot of a different meeting, elsewhere in Oregon, also an Indivisible group this weekend. This was a meeting of the Indivisible group in Kansas City, Missouri.

This is an Indivisible group who said they were getting about 50 people turning out for their organizing meetings. They were really psyched about that. Now, more than 600 people turned out.

Look at this turnout in Virginia.

Those protests were already happening. Those groups are already forming. But, boy, are they galvanized now.

At the airports by now, you`ve seen the footage of people turning out at the international arrivals area at airports everywhere from North Carolina to Ohio to San Francisco to Virginia to New York to Atlanta to Texas. Again, these were not protests that were organized in advance, right?

Nobody was going to plan this in advance. Nobody knew this was going to happen. People just heard that refugees were being held up at American airports and not being let in and the news spread on social media and, boom, people just turned up. And Democratic politicians I think have finally started to realize that there is a tiger out there and they want to try to catch it by the tail.

Senators like Cory Booker of New Jersey and Elizabeth Warren of Massachusetts, they went to airports -- Cory Booker was at Dulles Airport. Senator Warren was at Logan Airport in Boston. They went in to join in what was already happening at these airports, with or without them.

Some members of Congress went to airports in and around their districts this weekend not just to protest but also to work. This is Congressman John Lewis at the airport in Atlanta. Members of Congress heard that people were being detained. They got down to the airports in their districts or near their districts and tried to intercede. They tried to intervene. They got to work to try to get people out.

In New York, we saw that kind of intervention from Congressman Jerry Nadler and Congresswoman Nadia Velasquez who went to JKF airport and tried to advocate to get people out of detention at that airport. In Virginia, we saw Congressman Bobby Scott patiently, patiently, patiently trying to wear down the local cops who would not let him in to speak with federal officials at the airport.

Congressman Gerry Connolly of Virginia did the same thing. He ran into the same resistance in terms of police officers not wanting to listen to him despite his status as a federal official.

We have a little tape of that interaction. Congressman Connolly was not happy about being stopped by what he wanted to do there. I will warn you, here comes a swear word. It`s a very mild swear word. But still, a little swear.


REP. GERRY CONNOLLY (D), VIRGINIA: I`m Gerald Connolly. I`m a member of Congress.

POLICE OFFICER: I understand.

CONNOLLY: I represent right up to this airport and we`re asking for access to the people you have detained. Are people being detained?

POLICE OFFICER: Sir, I don`t know that. I work for the police department, not for --

CONNOLLY: No, but you`re part -- your job is to enforce the law.


CONNOLLY: We have a federal judge who has ruled that anyone being detained has a right to legal representation.

POLICE OFFICER: I understand.

CONNOLLY: Have they been denied that right? Or are they in fact getting legal representation?

UNIDENTIIFED MALE: I want you to know that the Dulles police have been actually very helpful with the legal team.

CONNOLLY: And I want them to know that I`m going to be a pain in the ass.


MADDOW: I told you, a little swear. I warned you.

Members of Congress, senators showing up, intervening, right, being willing to be a pain in the -- Democratic Party mascot. I mean, this is an unusual thing to see, right? We don`t usually get to see our members of Congress working in this way.

I imagine for most Democrats, it`s more fun happening than any time they hold a town hall or a community event these days.

Senator Whitehouse of Rhode Island held a community event last night, was have to get moved outside both because of the thousand people who showed up to give them a piece of their mind, but also because when it gets this confrontational, people tend to take things outside.


UNIDENTIFIED MALE: Of these nominees that have yet to be confirmed, who you will be voting for?


UNIDENTIFIED MALE: Will you vote yes on the remaining nominees?

UNIDENTIFIED MALE: He`s got a list.

REP. SHELDON WHITEHOUSE (D), RHODE ISLAND: I`ve got it and I don`t know because I`m looking at the list right now.

UNIDENTIFIED FEMALE: Why would you vote yes for any of them?


CROWD: Just say no. Just say no. Just say no. Just say no. Just say no. Just say no. Just say no. Just say no. Just say no.


UNIDENTIFIED MALE: How do we impeach him?


WHITEHOUSE: Treasury secretary, no.

Let me tell you the ones that I`m noes on.


UNIDENTIFIED FEMALE: He already said no.

WHITEHOUSE: So, secretary of education, no.


WHITEHOUSE: Secretary of state, no. Attorney general, no. EPA director, really big know. Secretary of treasury, no. Secretary of labor, no.

Secretary of commerce, I need to talk to him about NOAA and what he`s going to do. There are big ocean issues involved.

CROWD: Just say no! Just say no!

WHITEHOUSE: I hear you.


MADDOW: Democratic Senator Sheldon Whitehouse hearing from his own constituents in Rhode Island last night. How do you think he`s going to vote on the rest of the Trump cabinet nominees? What do you think he`s going to have in mind when he makes those votes?

I mean, Democrats were already getting heat for having not voted in sufficient numbers against Trump cabinet nominees, according to the depth of feeling against the new administration among the Democratic base.

Last week, Senator Al Franken in Minnesota on this program and lots of other progressive senators and lots of different forums, they all defended, for example, their -- the almost unanimous vote in the Senate for General James Mattis to be the new secretary of defense, saying that Mattis might be a good choice. He might be a check on the worst instincts of the administration.

But then you know what, on Friday afternoon, there`s General Mattis standing there literally with the president standing over his shoulder. That blue suit, that blue tie, that`s General Mattis, standing there while Trump is signing the Muslim ban, executive order.

So, if Jim Mattis was supposed to be the good one in terms of being a check on the worst impulses of the Trump administration, what`s worse in terms of their impulses than the Muslim ban and he stood literally right there over his shoulder while he signed it.

So, now, there are signs that Democrats are starting to notice how much backing they will have for saying no to Trump and how much heat they will take for saying yes to Trump. Just tonight, Democrats have succeed in delaying the vote that was supposed to happen tonight on the treasury nominee, Steve Mnuchin. They have also succeeded on delaying the vote that was supposed to be tomorrow on Linda McMahon to head the Small Business Administration.

They have succeeded in delaying the final Senate floor vote that was supposed to be tomorrow on the Exxon CEO to be secretary of state. And after watching as amazed as anyone as the streets have erupted and as day after day after day of protests has met the first radical days of this new administration, Democrats tonight didn`t just join everybody else`s rallies, they held their own.

Democrats held their own event outside the Supreme Court tonight. Hundreds of people turned up outside the Supreme Court tonight in D.C. And the Democrats -- House Democrats, Senate Democrats, they denounced the Muslim ban. They promised legislation to undo it. They promised to fight it with every fiber of their being.

And as that unfolded on the street in Washington tonight, that dissent from inside the government, somebody fired a big new flare of dissent that the administration seems to have no idea what to do with and that dramatic story is next.


MADDOW: OK. We have some major breaking news this evening. We have just been notified within the last minutes while we are in our commercial break there the acting attorney general of the United States has just been fired. The president has fired the acting Attorney General Sally Yates.

Let me tell you what`s going on here. Jeff Sessions, Senator Jeff Sessions of Alabama is the nominee to be the new attorney general. He, of course, has not been confirmed. He has not been sworn in, but we can`t go for any length of time as a country without an attorney general, without a top law enforcement officer in this country.

Jeff Sessions is the first proposed cabinet nominee from the new administration to start the process of being confirmed. His were the first hearings they held. But Democrats have succeeded thus far in delaying the process, slowing down the process for Senator Sessions. They`ve delayed even a committee vote on his nomination.

No votes have been cast on him yet at all. The first ones will come tomorrow at the earliest.

The Department of Justice in the meantime has been under control of an acting attorney general, who is an appointee from the Obama administration. You see her here in the foreground. Her name is Sally Yates.

And Sally Yates tonight released a fairly dramatic statement, saying that as long as she is attorney general, as long as she is running the Justice Department, the Justice Department would not be legally defending the travel ban and the refugee ban that President Trump ordered on Friday. She says she is not convinced that the executive order is lawful.

She put out this statement tonight that reads in part, "Consequently, for as long as I am the attorney general, the Department of Justice will not present arguments in defense of executive order unless and until I become convinced that it`s appropriate to do so."

All right. So that`s where we were heading into this hour. That letter was sent tonight at about 6:30 p.m. Well, now, just moments ago, just literally minutes ago, the acting attorney general, Sally Yates, has been fired by President Trump.

Sally Yates, congratulations, you have made history.

Here`s the statement from the White House explaining that she has been fired. Quote, "The acting Attorney General Sally Yates has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente who is the U.S. attorney for the eastern district of Virginia to serve as acting attorney general until Senator Jeff Sessions is finally confirmed by the Senate."

Again, acting Attorney General Sally Yates has been fired in this dispute with the new president and the new administration over his very controversial order to ban all refugees and to block travel to this country from the residents of seven countries whose populations total more than 200 million people.

Joining us by now phone to react to this breaking news is Hallie Jackson.

Hallie, thanks very much for being with us.

What do you know that we don`t know from this statement in terms of what just happened tonight?

HALLIE JACKSON, NBC NEWS CORRESPONDENT (via telephone): So, listen, I can tell you a little bit, Rachel, at least a little bit of the backstory and the effect that it played out sort of publicly after Sally Yates came out and said she would not enforce this immigration executive order. The Trump administration, insiders, inside the administration viewed this as obviously a political move and publicly talked about how they believe this is essentially the politicization of this issue, concerned in their view about Yates deciding to not enforce the law. They believe that if this has been an Obama administration law, it would have been fine for her, for example.

So, what this does? So, number one, not pleased. Number two, I will tell you that it is breaking news to a lot of folks who follow the Trump administration. That said, one thing we know about Donald Trump, just from looking at the precedent that has been set over the last nearly two years of his campaign and this transition has been that the president is somebody who will enact retribution if he feels it`s appropriate to do so and clearly he felt it was appropriate to do so. And clearly, in this instance, he felt that it was appropriate to do so.

I will say, part two on this, remember what happens tomorrow morning, Rachel, Jeff Sessions, the nominee for the attorney general, goes through his Senate Judiciary Committee hearing to become the attorney general, or the vote I should say. It is expected.

I was speaking with a source close to Senator Sessions tonight. It is expected that that will go through as planned, but this does put pressure on Republicans in the Senate to get Sessions through, essentially.

The person who has been stated to be the acting attorney general, I confess I also am struggling with the last name pronunciation. Dana Boente I think is an Obama administration appointee. He was appointed under Attorney General Eric Holder to serve as U.S. attorney for the eastern district before -- back I think it was in 2013, 2012.

So this is somebody who is not, you know -- who has ties to the Obama administration, but as you see in that statement that just came out tonight, he says that he`s honored to serve President Trump in this role until Senator Sessions is confirmed and says he will defend and enforce the laws of our country, to ensure that our people and our nation are protected, Rachel, which is something clearly the Trump administration had wanted to hear before naming him the new acting attorney general for the next TBA period of time until Sessions gets into his place.

MADDOW: All right. And so, now, the next things that need to happen obviously in terms of reporting and getting the full import of this event tonight, Hallie, is that we`re going to have to learn a lot more about Dana Boente, including how to properly pronounce his last name.

JACKSON: By a source e-mailed me (INAUDIBLE)

MADDOW: Say that again?

JACKSON: Boente.

MADDOW: Boente. The "o" is silent. We`ll work it out.

This is not somebody who was in our radar obviously, before this evening, which is why we weren`t prepped on pronunciation and these other things. But we`ll have to learn more about who is now the acting attorney general of the Department of Justice.

Obviously, Sally Yates becomes the first person who is fired by this White House on a matter of principle, a confrontation on a matter of principle with the administration. Hallie, one of the things we`ll be watching for the Justice Department, I guess, is to see people who had been asked to stay on from the Obama administration through the transition, whether they will resign in protest or themselves be fired.

Do we have any word from the White House on whether they expect Yates to go alone, or whether they`re going to clear out other people, too?

JACKSON: You know, at this point, I think it is too early to say. I think it`s interesting what you`re saying. I can speak not just to the Justice Department but to the other department, which is the State Department as to some of the concern of unrest that`s developed among the staffers, not the highest level people but the sort of staffers on those lower tiers that have developed.

So, I think there`s a question mark of how much frankly abrupt firing of Sally Yates is going to play into the morale at the Justice Department when we`ve already been seeing some of this play out over at the State Department as well.

So, I think -- I think there`s a lot of folks in Washington still kind of looking at the same notes that we are and grappling with how to come to terms with it.

MADDOW: That`s right. NBC`s Hallie Jackson, thanks for your reporting tonight. Thanks for joining us on short notice as we cover this breaking news.

Again, to repeat this story that has just broken in the last couple of minutes, the president has fired the acting attorney general of the United States. That person was Sally Yates who had been an Obama administration appointee.

She released a letter this evening saying that, in her view, as long as she was acting attorney general, the Department of Justice will not present arguments in defense of president`s executive order on immigration and refugees. She said that she was not convinced that it was a lawful order. Again, the White House just announcing moments ago that they have relieved her and replaced her with the U.S. attorney for the eastern district of Virginia, Dana Boente, who will now be stepping in to be the attorney general.

Joining us now is Eric Lichtblau, who`s an investigative reporter for "The New York Times."

Mr. Lichtblau, I appreciate you being here with us tonight. Thanks.

ERIC LICHTBLAU, NY TIMES WASHINGTON BUREAU REPORTER: Thank you. Busy night here in Washington.


Tell me, on the one hand, I feel like once we got the letter from Sally Yates saying under her as long as she was in charge of the Justice Department, there would be no legal defense of this order. I feel like everybody started saying her days are numbered.

But even with that expectation over the course of this evening, how unusual is it for an acting attorney general to be fired in this way and for a reason like this?

LICHTBLAU: Well, this is a dramatic one-two punch. I mean, these are both very unusual and first of all, for even an acting attorney general to question the legality of an executive order in the way that Sally Yates did is very unusual. And then, even more unusual for the administration to fire her. I mean, it sort of evokes the Saturday night massacre under Nixon in Watergate when you had Nixon firing the attorney general who refused to carry out one of his orders.

MADDOW: One of the things that is a point of contention and both sides addressed this in their statements tonight, is the fact that the Office of Legal Counsel reportedly signed off on the order -- the president`s order from Friday on immigration and refugees.

And in their statement tonight explaining that Sally Yates was being fired, the White House tonight notes, this order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

Sally Yates addressed that saying, "My role is different from that of the Office of Legal Counsel which reviews executive order for form and legality. Their reviews are limited to the narrow question of whether in their view a proposed order is lawful on its face and properly drafted. Its review doesn`t take account of statements made by an administration or its surrogates close in time to the issuance of an order that may bear on the reporter`s purpose and they don`t address whether any policy choice embodied in an order is wise or just."

So, boiling this down for those of us who aren`t lawyers or close legal observers, what is this fight about?

LICHTBLAU: I think Yates was saying, look, I`ve done a broader review than my Office of Legal Counsel did. They were merely signing off on the form and legality, in their words, of the order. I was looking at the broader Justice Department policies. She said, I was questioning whether it was wise and just were the words she used, and she was also referring, as you just alluded to, to statements made before signing.

I think it`s pretty clear that what she was talking about there were comments that President Trump himself, along with Rudy Giuliani made, spelling out, really, that this was meant to allow Christians in and ban Muslims. So, she didn`t specifically address that in her memo, but it`s fairly clear that`s what she was taking into consideration in saying, is this a legal and justifiable policy?

MADDOW: And she`s not, in her statement, making a sort of root and branch argument against the policy. She doesn`t go through and list the particulars of why she thinks it may not be lawful and the Justice Department shouldn`t defend it but says she`s not convinced that the executive order is lawful.


MADDOW: From your reporting and understanding of this issue, do you think it`s likely that other people at the Justice Department, ranking positions at the Justice Department will share that view and will now leave or be fired because they`ll basically take the Sally Yates line on this which, of course, the administration says is incompatible being at the Justice Department?

LICHTBLAU: I think it`s clear before she issued this memo tonight that this had caused some significant unease for lawyers at the Justice Department who remember had already had to go into court beginning over the weekend in response to petitions filed by people who were detained and going to have to file motions in the next few days and appear in court to defend this. And the idea of defending a policy that, first of all, they knew nothing about until the moment it was signed and, second of all, they may have some legal and ethical concerns about it, I think was causing some discomfort and now with Yates stating this publicly, I think you are going to see certainly lower level lawyers at the Justice Department echoing that same refrain.

MADDOW: When the transition happened, there was some consternation that the new administration wasn`t doing a good enough job of staffing up, of just having enough people in place. Not just in Senate confirmable jobs but all sorts of jobs, to be able to keep the government running from the previous administration to the new one. We got reports that a lot of people who were Obama administration appointees were asked at the very last minute to stay on.

Is that the case at the Justice Department, are they fully staffed? Are there people who in large numbers have stayed on simply as a courtesy and as good public servants even though they don`t agree with this administration?

LICHTBLAU: Yes, I don`t think numbers really were a problem at the Justice Department. That was one of the few places you didn`t hear a lot of couldn`t controversy or discontent over the way the transition had gone. It seemed to have gone fairly smoothly, to be honest, before tonight.

And Sally Yates was asked by President Trump to stay on. She was the deputy attorney general since 2013 under Obama and she stayed on as acting attorney general for a range of duties, including signing foreign wiretaps which she needed to do in before today was not a problem in her role. She was clearly a caretaker until Jeff Sessions could come aboard.

MADDOW: She will become -- her role in history will be different than it otherwise would have been before tonight. This is a very big deal. This is a very unusual occurrence.

Eric Lichtblau, thank you helping us understand it as we are just getting in these early details tonight. Thank you for your time.

LICHTBLAU: Thank you.

MADDOW: Again, the acting attorney general of the United States, Sally Yates, has just been fired by the president of the United States.

She put out a statement this evening saying that she was not convinced that the president`s executive order on Friday on immigration and refugees was a lawful order. She said, "As long as I`m acting attorney general, the Department of Justice will not present arguments in defense of this executive order unless and until I become convinced that it is appropriate to do so."

Rather than trying to convince her, they fired her tonight. This is an unusual thing. Right now, one of the things that we`re keeping track of is who will become the acting attorney general, who will become the top law enforcement official in the United States?

His name is Dana Boente. He is the U.S. attorney for the eastern district of Virginia. He was appointed by President Obama.

We`re looking into his background now, trying to get a sense of what he might do at the Department of Justice while we`re awaiting the potential confirmation votes for Jeff Sessions which may start as early as tomorrow in the Senate. Although at this point, who knows how Senate Democrats will respond and how they will retaliate against the administration if they will at all over this dramatic news.

The other thing we`re trying to understand now, as we get into sort of the belly of this story, as we start to understand what this means, is the historic nature of an action like this. We just saw Eric Lichtblau, reporter for "The New York Times," reference the Saturday night massacre which is, of course, a Nixon era proverbial blood letting that I think is what flashed in everyone`s mind when we first heard about this.

For some perspective on that as a historical bench mark and how big a deal this is, we`re joined by presidential historian Michael Beschloss who we`ve called on very short notice.

Michael, thank you for being with us tonight.

MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN (via telephone): My pleasure, Rachel. History yet again, right?

MADDOW: Well, I mean -- is it? It certainly is a big deal. When Eric Lichtblau just referenced the Saturday night massacre there from the Nixon era, can you remind us what he`s talking about there and tell us whether you see parallels to that?

BESCHLOSS: Sure will. There are some parallels. That was a Saturday night in 1973. Richard Nixon was president. It was the Watergate scandal and he was fighting for his life.

There was a special prosecutor who had been appointed, Archibald Cox, who was demanding Richard Nixon`s famous tapes and Nixon was refusing to give them up. And so, Nixon finally decided he`s going to fire Archibald Cox, but to do that, he had to get his attorney general to do it.

The attorney general was Elliott Richardson, an upstanding gentleman from Massachusetts. He said, absolutely not. I will quit before that happens. So, he quit.

The number two was a man named William Ruckelshaus. He wouldn`t do it either. He also quit.

Number three was Robert Bork, who later one was nominated for the Supreme Court, the nomination failed. Bork said, "I will fire Cox." Cox was fired and there was a cord thrown around his offices. The FBI was called in and that was called the Saturday night massacre.

It was on this network by the anchor at this time, this may be the greatest constitutional crisis in our history. What we`re seeing now in 2017 doesn`t loom as large as that but I think it raises a couple of questions, which are, number one, how independent is the Department of Justice going to be under the Trump administration? This raises real questions.

Number two, you mentioned that Jeff Sessions is about to be confirmed. The whole nature of that confirmation, I think, is likely to be transformed and, number three, you know, Donald Trump stock and trade when he ran for president was I`m going to be this great manager. I`m going to run the country and the government in a way that you have never seen before.

We are ten days into this administration and given those ten days, I don`t think it`s entirely a great advertisement for great management.

MADDOW: Michael, in terms of the political norms and the way that history you just described resonates in our current politics, after the Saturday night massacre, after other crises that we have had where the Department of Justice and its independence, the very independence of law enforcement in this country, to be free from partisan pressure and interest, after we`ve had challenges to that in the country, has that shaped an ethos at the Department of Justice, where you would expect career folks, people who would have otherwise a fairly nonpartisan approach to working that Justice Department, people who would -- like Sally Yates, who would stay on from Barack Obama to a Trump administration, despite the radical change in politics simply because the new administration asked and it`s the right thing to do.

Would you expect that this would rub the Justice Department so much the wrong way that we`ll see either an exodus or they`ll have to mass fire people, there will be some sort of revolt?

BESCHLOSS: Oh, I think you could see an exodus of career people because that`s what this department is supposed to be. There is an ethos that goes back to the beginning of this country and it also had that affect at the time of the Saturday night massacre because -- once Archibald Cox was fired by Robert Bork on behalf of Richard Nixon, two things happened. Number one, there were a lot of petitions filed for Richard Nixon`s impeachment and that`s when he really started to look like a goner. Number two, the Senate demanded that the new attorney general be someone who was clearly independent of Nixon and a post went to a guy named William Saxby, who is a Republican senator from Ohio, but one who detested Richard Nixon and was known for this almost more than any other Republican senator.

So, I think the result for this for Donald Trump is going to be there will now be expectations for independence in this department and whoever is the next attorney general -- much greater than there might have been 24 hours ago.

MADDOW: NBC News presidential historian Michael Beschloss -- Michael, absolutely invaluable to have you with us, especially on short notice tonight. Thank you. I appreciate you being here.

BESCHLOSS: My pleasure, Rachel. Be well.

MADDOW: So, to repeat this breaking news this evening, this is just a remarkable development. Jeff Sessions is the nominee to be the new attorney general. Jeff Sessions has not yet had the first vote on his confirmation in the United States Senate.

It`s expected that Democrat also put up a fight against Senator Sessions. Republicans do not appear to be willing to go along with that. Before tonight, I would say that Senator Sessions was expected to have his committee vote and probably to be approved out of committee tomorrow on more or less a party line vote.

That may now be further pressured by whatever Senate Democrats can do given what has just happened tonight at the Department of Justice. After the acting attorney general who was asked to stay on from the Obama administration, after she put out a statement tonight saying that she was not convinced that the president`s executive order on refugees immigration from Friday, she was not convinced that it was lawful. She said that while acting attorney general, the Department of Justice would not present arguments in defense of the executive order.

After she said that, the president tonight fired her and has replaced her with the U.S. attorney for the eastern district of Virginia. His a man named Dana Boente, who was not somebody who has a significant national profile despite the very important job he has as U.S. attorney. He was appointed U.S. attorney by President Barack Obama and we`ll all be learning more about Dana Boente in the days ahead.

But this is a dramatic move. We just spoke with Michael Beschloss about the historic nature of it. We spoke with Eric Lichtblau of "The New York Times" about the sort of shock wave this is sending across Washington.

But I want to bring into the conversation now, Laurence Tribe, who`s an esteemed professor of constitutional law at Harvard Law School. He`s argued before the U.S. Supreme Court dozens of times. He`s one of a few litigators in America who is also a household name because of his job.

Professor Tribe, thanks very much for joining us tonight. I appreciate you joining us.

LAURENCE TRIBE, HARVARD LAW SCHOOL (via telephone): Thanks for calling, Rachel.

MADDOW: How big of a deal is it for the president to fire an acting attorney general specifically over this kind of a dispute?

TRIBE: I think it`s historic. I agree with Michael Beschloss. It certainly reminded me immediately of the Saturday night massacre.

The only difference, well, there are many differences, but one is how quickly this has happened in the Trump presidency, as though history is being collapsed into a black hole and everything that`s happening faster than the speed of light. And it seems to me that because the Sessions nomination is itself already controversial, because the executive order really challenges who we are as Americans and violates important parts of the Constitution, including the clause forbidding an establishment of religion.

Because we have seen a succession of national protests from the ground up against the way this president is conducting his almost extemporaneous presidency, I think it`s an important turning point in our history and I think tonight is part of that extraordinary moment that we`re living through.

MADDOW: Once the acting Attorney General Sally Yates put out this statement tonight, Professor Tribe, saying that as long as she was acting A.G., the Justice Department would not defend this in court because she was not convinced that it was lawful. Once she put out that statement, was it inevitable and in fact was it right that the president relieved her of her job and replaced her? Did she essentially dig her own grave here or did the president have a choice?

TRIBE: I think the president did have a choice. He could have arranged for the appointment of a special defense counsel to defend his position even when the Justice Department wouldn`t. I mean, there have certainly been cases in our own recent history where the Department of Justice was unwilling to defend a particular law and Congress appointed someone to defend it.

In this case, because it wasn`t the law that was an issue but an executive order, the president might have arranged through the White House counsel`s office to have his order defended. But for him to turn the Justice Department through this charge into part of his system and compromise its independence suggests that he has no commitment to the institutional integrity of the department we rely on to represent the rule of law and not simply the will and whim of the president of the United States.

MADDOW: If this firing tonight has, as you say, compromised the independence of the Justice Department, do you expect or would you call on senior members of people serving in ranking levels of the Justice Department to leave, to resign and protest, to do anything else they could to get out of a department that has now been compromised by this action by the president?

TRIBE: Well, I think they should all be ready to resign on principle if their positions are compromised similarly. But from the distance that I occupy at the moment and without knowing more of how much good they can do inside versus what they can do by resigning in protest, I would hesitate to advise anyone at this point.

I certainly think that the fundamental issue of how one deals with various forms of evil in government, whether one remains to try to ameliorate the harm or whether one leaves is a deeply personal and problematic choice for many people. But certainly working within the system that is running at odds with the American identity and with the American Constitution is something that one should only do if one genuinely is ready to resign on principle is simply working as a cog in a machine that is obviously corrupted and getting worse by the hour.

MADDOW: Laurence Tribe, constitutional law professor at Harvard, joining us on very short notice tonight as we`re continuing to cover this breaking news -- Professor Tribe, thank you. I really appreciate it.

TRIBE: Thank you, Rachel.

MADDOW: You know, as what Professor Tribe was saying there is being ready to resign and protest on a matter of principle, this, to be clear tonight, was not a resignation on a point of principle. This was the acting attorney general, Sally Yates making a point of principle, taking a stand for how she believed the Justice Department should act with regard to the president`s order banning refugees from this country and banning travel to this country from people of national origin from seven specific countries. She said that she was not convinced the executive order was lawful and, therefore, as acting attorney general, the Justice Department under her would not defend it. That is what led to her being fired tonight and replaced by Dana Boente, again, the U.S. attorney for the eastern district of Virginia.

We`re still sort of absorbing this information. This is the first -- I guess this is the first person fired on a point of principle like this of the Trump administration. I think we were all expecting there would be resignations on points of principle. That`s not out this went down.

I want to bring into the conversation now somebody who has an interesting role to play in this entire confrontation, his name is Bob Ferguson. He`s the attorney general of the state of Washington, the state of Washington has just filed in federal court an effort to stop that presidential order from Friday on immigration and refugees. They`re seeking a national restraining order against that policy.

Mr. Attorney general, thank you very much for your time tonight.

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Thank you, Rachel. Thanks for having me on. Appreciate it.

MADDOW: Let me just get your response first. Obviously, you`re the attorney general of a state. The acting attorney general of the United States has just been fired, on a point of principle over this matter that you are suing the federal government about. What`s your reaction to Sally Yates being fired tonight?

FERGUSON: It`s troubling. And I`ve been listening to you and your guests and I think they`re hitting it right on the mark, this is troubling for the Justice Department and the independence of that department.

I think Sally Yates, she had a right. It`s a difficult order to defend. We believe it`s unconstitutional and un-American. But overall, yes, this is a troubling day. There`s no two ways around that.

MADDOW: Can I just ask as a matter of federal procedure -- so you`ve brought this case against the president`s order in federal court, you are seeking a nationwide stay. We`ve seen the court -- excuse me, the order appear in court five times in one way or another since he signed it on Friday. And so far, the other has gone 0 for 5 but the type of relief that has been ordered by all of those five judges has been temporary and limited in terms of the immediate impact of the order.

You are actually seeking a nationwide stay. Had the Justice Department gone ahead with what Sally Yates said, she said they wouldn`t defend it in court, had the president not fired her tonight, what would have happened with your first hearing on your measure? Who would you have been arguing against? How would that have been handled?

FERGUSON: I think that`s hard to predict. It`s possible the president could have hired somebody else to do it. But we were wondering about that literally as I was driving to the studio to chat with you.

At the end of the day, you`re exactly right. The litigation we`re bringing in Washington state challenges the very constitutionality of this executive action and if we are right, and courts agreed, it would invalidate that not just in Washington state but nationwide. And that`s the difference from the other litigation you`ve been reporting on.

MADDOW: What do you think of the chances for your filing? Obviously we have seen -- one of the more remarkable things to watch this weekend was to see lawyers in their street clothes laptops in hand flood into the nation`s international airports and the international terminals to provide whatever legal help they could to individual people who were caught up in this order. That was the origin of those five court actions that resulted in various limitations of the policy over the course of the weekend. Those narrow actions obviously were narrowly targeted and immediate.

What do you think the chances are for a nationwide stay based on your arguments?

FERGUSON: Let`s put it this way, Rachel -- I would not have filed this litigation unless I was confident we would prevail. In the courtroom, it`s not the loudest voice that prevails, it`s the Constitution. And the bottom line is, this executive order is unconstitutional.

And we are confident that a judge here in the western district of Washington will agree and we`re optimistic we`ll grant that restraining order as well.

MADDOW: Bob Ferguson, attorney general of the state of Washington which, again, seeking a nationwide stay against the president`s order. Thank you very much. Please keep us apprised. This is obviously a story move in directions with can`t anticipate. Thank you, sir.

Again, I want to reiterate what`s happened here. We`ve got the U.S. attorney for the eastern district of Virginia now we`re told sworn in as the new acting attorney general of the United States.

Again, as has been frequently true about this administration, we don`t have some of the very basic details that you would expect to get in moments like this. Like we`ve had these strange incidents where we`ve got the president having reportedly signed an order and we don`t have the text of it. Leading to these weird circumstances where the order is apparently going into effect, we`ve never seen it in print and therefore can`t evaluate it.

Similarly, we got news tonight that the new acting attorney general was sworn in at 9:00 p.m. this evening. We don`t know who swore him in. We don`t know if there were witnesses to it. We don`t know where it was.

Obviously, the Trump administration controlled the timing on this because they were the ones who decided when to fire the acting attorney general. So, they could have gotten it together to do the swearing in of the new attorney general any way they wanted to. But all we`re doing now is taking their word that he was sworn in as our new acting attorney general as of 9:00 p.m.

Joining us now is my friend, Dalia Lithwick, who`s a senior editor at "Slate" and expert at making legal things that don`t make sense to us non- lawyers make sense to us non-lawyers.

Dahlia, thanks very much for being with us tonight.

DAHLIA LITHWICK, SLATE (via telephone): Hi, Rachel.

MADDOW: How big a deal is this?

LITHWICK: I think it`s a big deal. I think, you know, what you`re hearing is echoes of the Saturday night massacre, 1973, you know, a purge. It feels very, very much, if you read the statement the White House put out, you know, they`re accusing Sally Yates of betraying, that`s the word they used, the Justice Department.

It`s an amazing statement. It, you know, calls her an Obama administration appointee who is weak on borders, weak on illegal immigration. I mean, it feels like something President Trump wrote on the back of a napkin and handed to someone. It doesn`t feel like this is how we talk about the most senior lawyer in the Justice Department.

MADDOW: The Justice Department obviously is an agency that we expect to be politically independent, even though it`s got political appointees at its upper echelons and this is something we fight about a lot as a country. I think about the slings and arrows born by people like Eric Holder, people like Janet Reno, people like John Ashcroft, people on the other side of the aisle saw them as public enemy number two, in the administrations they didn`t like, after public enemy number one was the president.

But despite that, the Justice Department does represent law enforcement in this country, does have to at least not only be seen as an independent agency free from political suasion, do you think that this encroaches on that in a way that is out of keeping with our usual politics around these issues?

LITHWICK: I think it not only encroaches, Rachel. I think that`s the point. The point by dismissing her as, you know, weak and an Obama administration appointee, by suggesting she`s been politicized, I think the attempt here is to say, we`re going to have friends and enemies and there is nobody, not judges, not justices, nobody who is going to be seen as above politics.

And I think this really does race the question with Jeff Sessions, you know, the judiciary committee is meant to vote on him tomorrow, the whole Senate is meant to vote at the end of the week. I think this really raises the question of can he possibly be deemed above politics if he`s going to rubber stamp Donald Trump initiatives? Or is it, in fact, true that we`ve destabilizes the idea of law and constitutionality, rule of law, justice, all of it is just my team versus your team?

And I think it`s incredibly dangerous in terms of using that kind of thinking in talking about justice and the Constitution.

MADDOW: What do you think will happen next at the Justice Department? Obviously, Sally Yates not the only high-ranking Obama administration appointee to stay on at the request of the Trump administration. What do you think -- what do you think will happen now that she`s been fired?

LITHWICK: I hesitate to hazard to guess, Rachel. I will just say that if what we saw at the State Department today with the draft memorandum circulating that, you know, dissenters, you know, many, many dissenters having problems with the executive order and told pointblank by Steve Bannon, you know what, just leave. If you`re not loyal, just leave.

MADDOW: By Sean Spicer, yeah, that`s right.

LITHWICK: This is a loyalty test, I think, at this point.

MADDOW: And, Dahlia, I guess the -- I mean, part after who we need to figure out is nuts and bolts. What is Dana Boente like who is the eastern district of Virginia U.S. attorney, who`s now going to be taking over, how will the Senate Democrats respond in terms of whether or not they can throw additional sand in the gears in terms of the Jeff Sessions nomination, will he get a confirmation vote tomorrow? Will there be either an exodus or mass firings at the Justice Department in response to this?

I mean, all of it is in process, like Laurence Tribe was saying earlier this hour, it feels like time has collapsed and everything is happening all at once. Do you have any hope for any sort of course direction that reestablishes the political norms and judicial norms that used to exist around these issues?

LITHWICK: You know, I think to the extent there can be course correction, it`s going to be people picking up the phones and saying I think Jeff Sessions needs to answer some questions before we vote on him. I think that if people believe that there is such a thing as the Constitution, not your constitution versus my constitution, if people still believe that there has to be one body of law in this country, and we do our best to all agree on what it is, then I think the course correction doesn`t come from the top down anymore, it comes from the bottom up.

MADDOW: Dahlia Lithwick, senior editor at "Slate" -- thank you for joining us as we cover this remarkable event.

President Trump firing the acting attorney general of the United States, this just happened within the last hour.

Our continuing coverage now goes on with Lawrence O`Donnell, "THE LAST WORD WITH LAWRENCE O`DONNELL."

Good evening, Lawrence.


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