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The Rachel Maddow Show, Transcript 2/6/2017

Guests: Bob Ferguson, Dahlia Lithwick

Show: The Rachel Maddow Show Date: February 6, 2017 Guest: Bob Ferguson, Dahlia Lithwick

RACHEL MADDOW, MSNBC HOST: Happy Monday, Joy. Did you know I was going to be happy anyway? Even though --

JOY REID, "A.M. JOY" HOST: You are always happy. That is very true. And you know what? Your joyfulness helps us through this very difficult time. So, thank you for that.

MADDOW: Thank you for not even mentioning football. I know we have our differences about these things. So, thank you, my friend. I appreciate it.

REID: I know, but I love you, so I won`t even mention it.

(LAUGHTER)

MADDOW: Well-done, my friend. Thank you.

REID: OK. Good night.

MADDOW: And thanks to you at home for joining us at this hour.

Yes, I`m in Massachusetts tonight. I wonder why.

Yes, I`m very excited about what happened yesterday with the Patriots but I will not let you suffer with me gloating over it. There you have it.

All right. We have just heard tonight from a federal appeals court on the West Coast about whether the Trump refugee ban and Muslim ban is going to be allowed to come back to life or whether it will continue to be blocked by a federal judge`s order. That appeals court, the U.S. circuit court for the Ninth Circuit, they set a deadline tonight, a deadline of tonight for the government to make its legal filing to present its best case.

Then, moments after that deadline passed, they announced there will be a hearing tomorrow at 6:00 p.m. Eastern Time, 3:00 p.m. on the West Coast, 6:00 p.m. on the East Coast. That means this time tomorrow, we will likely know whether the refugee ban and the Muslim ban is still staying dead or if it might come back from beyond the grave.

There`s been so much visible protests. There`s been such wide-scale civilian resistance and organizing against Trump, I think it`s been easy to focus on that as the countervailing force against which the Trump administration is pushing, but this legal fight in the Ninth Circuit now this is the first time that the judiciary has really given this new administration a shove and pushed it way back.

Again, the big hearing in this case is tomorrow. We just learned tonight that the hearing is going to be live-streamed when it happens, which is going to be fascinating. In just a moment on this show, we`re going to be speaking with the blue state attorney general who brought that case in the first place. We`ll hear from him directly as to what he expects from that hearing tomorrow and where he thinks this very big, very important case is going. So that`s all ahead.

While we await that interview tonight, while we await that hearing tomorrow, we have also just had one of the strangest pieces of reporting we have yet had on any subject about this new administration. And that`s what I want to lead the show with tonight. This is not something that the new president tweeted, this is not some, you know, blatantly false and inflammatory thing said in the White House briefing room or said by one of his surrogates. What we`re going to focus on tonight at the top of the show is something that the White House has reportedly done, even though they haven`t talked about it. It`s being reported independently by the "Associated Press" about the administration even though they`ve said nothing about it.

And I`m starting to feel like the best way to cover this administration is to treat them like they are a silent movie, right? They`ve got a problem all the way up to the very top of saying stuff that isn`t true and so, that can be every day`s news story, but there`s also responsibility to focus on the bigger stuff that they`re doing, to not be so distracted by the things they say, because that could send you down 40 rabbit holes a day trying to ferret out the connection or lack thereof between the statements of the administration and the reality of the lived world, right? It`s important to catch them on their misstatements and point them out but if you spend all of your time trying to nail down their words following every statement that they make as your next news story, not only do they get to lead you by the nose in terms of what you cover, but sometimes for all of the attention to what they are saying, you miss what they are doing.

So, this administration isn`t very old yet. We`re 2 1/2 weeks in. As each day goes by of this new administration, I feel like in terms of developing my understanding of what`s important, explaining what the real stuff is that`s happening, you know, it`s not a distraction of what is really going on, I feel like I`m getting more and more focused of reporting about their behavior rather than focusing on comment or amplification of things that they said.

So, I just want to tell that you as a matter of transparency, that`s where I`m coming from on this, that`s where my news sense comes from on this and now, please, check this out.

This man is often described as Europe`s last dictator. He has been in power in his country since 1994, 23 years and counting. And one of the ways you know that somebody has gotten comfortable being a dictator is that when he announces he`s given a press conference, what he actually does is then gets up in front of the press and speaks for 7 1/2 hours without notes and without a break and without interruption, 7 1/2 hours. That happened in Belarus on Friday night, 7 1/2 straight hours from the president/dictator of that country.

And you know what? In our country, we have had all this furor and all of this protest and all of this ferocious legal argument over the travel ban put in place by our new president. We know what it`s like for a policy like that to cause great disruption, to have great big political consequences.

This entrenched dictator, though, Alexander Lukashenko in Belarus, he just one-upped us in his country. What he announced last month is that people from more than 80 countries can now visit Belarus, can now travel to his country without even getting a visa.

So, you don`t need any government permission. You don`t need to notify the government that you`re coming. You can just show up. You don`t need a visa. Just be here. You`re fine. Welcome.

And the reason this has caused a very specific kind of freak-out over there is just to the immediate east of Belarus, looming over them in everything they do is their giant overbearing neighbor, Russia. And Russia is freaking out about this plan by Belarus that they are going to let in people from all over the world because that is right on Russia`s border.

I mean, this new policy in Belarus, it applies to countries from the E.U. countries. They can all come without a visa. It applies to Americans. You can come without a visa now.

If Belarus says come on in to people from all of these countries, more than 80 countries around the globe, that would mean that people from all of those countries could just waltz right up to Russia`s border.

And so, queue the Russian freak-out. Russia has freaked out about this. They`ve responded by threatening to militarize the border between Russia and Belarus. They are going to let Americans and Europeans and all of these people in, well, we are going to put up barbed wire. Put up barbed wire and those walls back up on the border between us then.

Russia has also threatened to cut off the oil and gas supply to Belarus and the president in his 7 1/2 hour press conference, he said that Belarus absolutely could survive that. They would figure out some way around not getting any more oil and gas. Nobody believes that`s necessarily true, that they could survive it, but it shows you that he`s worried.

In fact, a lot of what he said that was designed to reassure people that everything was going to be okay ended up doing exactly the opposite. "The Associated Press" today quotes him from hi Friday press conference saying, quote, "There will be no war, no one will occupy us. No one will send in troops."

And I`m sure he meant that to be reassuring but it`s not reassuring to hear that from your country`s leader, right? Don`t worry. There`s not going to be a war. Nobody`s invading us. Scarier words were never spoken.

So this is what Russia is -- Russia is really leaning on them now. And, you know, this is what Russia does, for a long time, right, since the collapse of the Soviet Union and all of those things that used to be part of the USSR instead of becoming independent countries on the eastern edge of Europe. For a long time, Russia has freaked out about its reach and its influence and its defenses, particularly along its western border.

This is what drives them all the time. They feel like they are surrounded by NATO. They feel like they are encroached upon by the European Union. They feel like, you know, countries that ought to be in their orbit, countries that used to be part of the USSR, these countries are constantly being pried off and turned toward the West instead further isolating Russia.

And sometimes these concerns turn into war. In recent years, Russia has invaded Georgia. They have invaded Ukraine, and taken over a part of Ukraine to be their own territory now.

Countries that Russia wants to stay in its orbit are constantly being threatened by Russia, that they have to stay in Russia`s orbit or else. You like your oil and gas? Want to keep getting it? Shame if something happened to it.

When they feel like there`s a country that ought to be in their orbit that is turning towards the West, they also do whatever they can to drive a wedge between those countries and whatever Western influence is so appealing, whether it`s the European Union or the United States or NATO, or what-have-you.

And sometimes these things, as they said, they do become war but more often it`s these sub-war level fights and conflicts and simmering weirdo standoffs -- and I mean it when I say weirdo because before this fight they are in right now, for example, over people from all over the world being able to go to Belarus without a visa, which Russia is very upset about. Before this fight, there was a big round of tensions between Russia and Belarus because Russia said that Belarus violated its ban on importing Western foods.

When the United States and European Union and western countries put sanctions on Russia, Russia retaliated by saying, yes, OK, we`re not going to import any Russian foods anymore and they said that Belarus violated that ban and that was a truly weird one because that was the one where Russia ended up doing all these photo-ops where they burned up big piles of perfectly good food and they drove tanks over boxes of fruit and cheese and made a big show of crushing frozen geese. It was really weird.

There was also that time when this was when Russia was pushing to build a military base in Belarus, even though Belarus did not want Russia to build a military base there. It`s always something with these guys.

And in the past, to press their advantage, Russia has mostly resorted to threats. That`s what they are best at. But they have also used propaganda and information warfare to try to fight these weirdo fights that they have along its western border. Again, they sometimes become war but they mostly just simmer and become these sub-war level conflicts.

For example, not long ago, the Russian state-run media outlet, the propaganda outlet that`s called Sputnik, they floated the idea that Belarus was about to be invaded by the West. They cooked up this fake news story that Belarus was desperate for Russian weapons and Russian protection because Poland -- yes, Poland was going to invade Belarus.

And that`s insane. Poland is a NATO country. They are an E.U. country. Yes, Poland is as nuts as any country but Poland is not invading Belarus, right?

But that`s, of course, the kind of thing that Sputnik would come up with. That`s the kind of nonsense Russian propaganda that Putin pumps out whenever he needs to. This is a, you know, well-positioned propaganda effort design to unsettle people -- in this case, designed to rattle the 75 percent of Belarusian citizens who speak Russian. This is Russia`s way of telling them, don`t trust your leaders, don`t trust the West, only Russia can protect you. The west might invade at any minute. Look out, here comes Poland.

It`s ridiculous. It`s ham-handed, right? Poland is not going to invade Belarus. But this is what Russia does.

And for all the craziness in our politics, I`m glad we don`t have to deal with anything like that, right?

So here`s the thing. "The Associated Press" has a story out today on the new administration and how they are having sort of a hard time getting it together on national security and foreign policy stuff. You know, the Muslim ban debacle, the ridiculously botched calls to even friendly foreign leaders, that kind of stuff.

There`s a bunch of stories out there today on that subject. But towards the end of the "Associated Press" version of this story, they drop this, quote, "According to one U.S. official, national security aides have sought information about Polish incursions in Belarus, an eyebrow-raising request because little evidence of such activities appears to exist." And by little evidence of such activities, they mean, yes, no evidence outside bullpucky Russian propaganda designed to freak Belarus out and get Russia`s way into that country.

"The "A.P." reporter who authored this piece clarified a little bit on Twitter saying explicitly that, quote, "It was senior people, senior aides in the Trump administration" who asked for this information on Polish incursions into Belarus -- when there have not been polish incursions into Belarus, except in raw ham-handed really obscure propaganda that you wouldn`t stumble upon because it`s been repeated a lot in your Facebook feed, right? You would never come across this except in this raw propaganda that Russia pumps out through its state-run media channels, like freaking RT and Sputnik. That`s the only place where stuff like this is trafficked.

Why are senior national security aides from the Trump administration inquiring about it? Hey, top Trump national security officials, hey, General Michael Flynn, national security adviser, what are you guys reading these days? Where are you getting your stuff from?

And, General Flynn, while we`re on the subject, is it true that you are rewriting the president`s daily brief from the intelligence community every day because you know better than the U.S. intelligence community? What are your sources? Where are you getting your info from?

I mean, this is really strange. This is like -- this is like a sitcom where you`re trying to figure out which of your friends have been gossiping about you and so you give all of your friends a different salacious, fake secret and tell them not to tell anyone, and then one of those fake secrets that starts circulating tells you which of your friends has been betraying you and started blabbing your news around school, da, da, da, dada, right?

It`s like this is a ridiculous plot except in this case, it`s the National Security Council and the secret to figure out what they are working on is apparently what Russia has been blasting out as ham-handed propaganda that otherwise has no connection to the real world, to real American national security interests or even to real news. I mean, Sputnik TV should not be the Rosetta stone that unlocks the priorities of the National Security Council in the White House.

But honestly, what else explains this? I mean, the Russian intervention into our presidential election is still not explained. The Russian -- excuse me. The Republican-led intelligence committees in the House and the Senate, they are sort of just waking up, yawning, just thinking about trying to get around to maybe start figuring that out sometime soon, right? They are putting the Russia back into don`t rush me.

But as long as that Russian intervention in our election remains unexplained, uninvestigated, unpunished, not to be weird, but that means there`s also an open question of a potential Russian government penetration into the Trump campaign. And into what is now the Trump administration. Poland is not invading Belarus.

"The A.P." is reporting that the top level national security aides to this president are inquiring with U.S. agencies about those Polish incursions into Belarus. Why the heck are they pursuing that as a line of inquiry in the Trump National Security Council?

Democrats last week asked for an investigation into payments from one Russian state media outlet, from RT, to our current national security adviser, Michael Flynn. Michael Flynn was reportedly paid a lot of money to attend an RT dinner in Moscow where he sat with Vladimir Putin. That was in December 2015. We`ve got the photos to prove that he was there.

At that point, General Flynn had already met repeatedly with presidential candidate Donald Trump. He was soon to endorse Donald Trump and join his campaign.

As a recently retired flag officer, Democrats claim it may have been illegal for Michael Flynn to have taken that money from the Russian government for that Moscow appearance, even though he was no longer in uniform when he did so. Democrats have asked for an investigation into that. Maybe that thread will unravel some of this.

And maybe the FBI really is investigating ties between the Trump campaign and now, the Trump administration and the Russian government. The FBI, of course, is not confirming or denying whether that investigation exists, but there have been multiple reports have been that it does. Maybe it does exist and maybe that will shed some light.

But there is something weird here. And if you tune out what they say and you just watch what they do, this kind of thing stands out. Why the heck are they doing that? Right?

I mean, "The New York Times" reports today that President Trump did not know, did not understand, he was not properly briefed on what he was doing when he signed an executive order putting Steve Bannon on the National Security Council. Think about that for a second. What`s worse, the fact that he put Steve Bannon on the National Security Council or that the president did so unknowingly. Somebody is putting things in front of him to sign and he`s signing them without knowing what they are. Which is worse?

There`s good reason for all of this focused reporting right on whether or not the Trump administration knows what it`s doing. But sometimes, I think what otherwise feel like random misfires by them or bizarre priorities from them, sometimes those things may not just be evidence of chaos and incompetence. Sometimes, it`s worth tracking those things back to their origins to find out where they are coming from, and in this case, the national security playbook for this administration appears in part to originate in another hemisphere.

This is a very creepy development. This needs explaining.

We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: I will admit, it was kind of a weird question to ask. Of course he thinks he will win. But now, I`m really glad I asked it, because now, it`s helpful to know why he was so sure that he would win.

(BEGIN VIDEO CLIP)

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

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Well, let`s put it this way, Rachel. I would not have filed this litigation unless I was confident we would prevail. In a courtroom, it`s not the loudest voice that prevails. It`s the Constitution.

And the bottom line is, this executive order is constitutional and we are confident that a judge here in the western district of Washington will agree and we are optimistic will grant that restraining order as well.

(END VIDEO CLIP)

MADDOW: That was one week ago today. Washington State`s Attorney General Bob Ferguson on this show expressing confidence that his stay will prevail in its lawsuit against the Trump refugee ban and Muslim ban. And then on Friday night, Washington state Attorney General Bob Ferguson, he did win.

The state of Washington at least won the first round Friday night when a federal judge in Seattle granted a temporary restraining order effective nationwide halting the implementation of the Trump ban. Well, now tonight, the federal appeals court for that part of the country has set a hearing for 3:00 p.m. West Coast time tomorrow, 6:00 p.m. East Coast.

We`ve also just learned that that hearing is going to be streamed live while it happens. At least until the website of the Ninth Circuit Court of Appeals inevitably crashes because of fantastic, national, and indeed international demand to hear what`s going to happen in that case and what is either going to go down in history as the first most radical policy of the administration or the first time the federal courts took a look at this new president`s policy agenda and said, no, no way, no how, not as long as we have this constitution.

Joining us now is, once again, Bob Ferguson, Washington state attorney general.

Mr. Attorney General, thank you for being with us tonight and congratulations on your early wins in this case.

FERGUSON: Thank you so much. It`s great to be back with you, Rachel.

MADDOW: So, we know that the judges are going to be holding this hearing tomorrow. Thirty minutes on each side. What do you expect and where would you describe yourself and fellow plaintiffs in terms of where you think you are at in the trajectory of this case?

FERGUSON: I think things are going precisely as we had planned when we set a course to litigate this really fundamental constitutional matter. So, we prevailed before a federal judge appointed by George W. Bush. That`s now under review and I`m as confident before the Ninth Circuit judges will be before tomorrow as I was before that judge in the western district of Washington last week.

MADDOW: One of the things that`s been driving a lot of news coverage about this is not just what`s happening on the ground in terms of the ban being stopped and people now getting back into the country in those airport reunions that we saw happening over the weekend and into today in addition to that on the ground reporting, we`re also seeing a lot of interest in the friends of the court briefs that were filed here. Very, very high-powered folks joining on here -- 100 tech companies, 16 attorneys general, a lot of very highfalutin national security officials, former national security officials, including the former Secretary of State John Kerry.

How important is that kind of support that you`re getting from other parties?

FERGUSON: Well, I think it`s critical, Rachel. I think it shows, first, how important this issue is that you get that kind of support from, as you mentioned, 100 tech companies. We`re talking Microsoft. We`re talking Apple. We`re talking Google.

And from the national security standpoint, critics of the lawsuit pointed to that as does the president. But as you mentioned, a bipartisan group of national security experts, including George W. Bush`s CIA director filed affidavit in support of my complaint and motion before the Ninth Circuit Court of Appeals. So, I think it goes to the heart of the case and I think it`s going to speak well for our complaints as we move forward throughout this process.

MADDOW: Are more states going to be joining on your side of this lawsuit?

FERGUSON: Sure. I don`t want to get ahead of my colleagues but certainly, we welcome the addition of additional states. You know, they have their own choices to make. Some want to bring their own lawsuits, that`s fantastic. Each has to make their own decisions.

But I can tell you that, yes, I anticipate additional states. I think Hawaii has gone public and seeking to intervene in this litigation as well. And I`m confident you`ll see other states file their own lawsuits here in the coming days.

MADDOW: Mr. Attorney General, I can sense your confidence and you`ve expressed it well.

I`ve got to ask you about the potential downside, though. If the court tomorrow decides that they`re going to allow the policy to be reinstated, either on a temporary basis or if they acted in a more radical way, would you expect the kind of on-the-ground chaos we saw when the ban first went into effect last weekend?

FERGUSON: That`s a good question and hard to predict. I guess what I could say is I`ve seen firsthand the impact. I was out at SeaTac Airport here in Washington with Governor Jay Inslee to greet folks coming from countries like Iran and Somalia to the United States who had been rejected and turned away previously. So, I know how deeply personal these issues are and how strongly the people of my state and folks around the country feel about it.

At the end of the day, I`ll use all the tools I have to make sure the Constitution is upheld and to make sure that no one is above the law and that includes and, in fact, especially includes the president of the United States. And that`s really what is at stake with this litigation.

MADDOW: Bob Ferguson, Washington state attorney general, thank you, again, Mr. Attorney General. Keep us posted.

FERGUSON: You bet. Thank you very much.

MADDOW: All right. Still ahead tonight, the latest sign that being an elected official is a much louder and far more interactive endeavor than it was just a short while ago. Look at these pictures. That`s next.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: Do you see these pictures over the weekend? This was Romania over the weekend. Look at that. That is not a celebration.

Romania only has about 20 million people. A considerable proportion of those 20 million people turned out in the streets to protest against their government this weekend.

What`s going on there is that the head of the leading political party in Romania, he`s banned from being prime minister because he has a corruption conviction and because he`s facing trial on another corruption charge. And to deal with that problem, his ruling party last week went into an emergency session late at night and they passed a law that proclaimed that corruption is no longer a crime. Seriously.

They basically decriminalized negligence in office, abuse of power and conflict of interest. They decriminalized corruption. And that night, even though they did it late at night, 10,000 people showed up in the streets that night and then the next night it was more like 100,000 people and then by last night, the fifth straight night, it was hundreds of thousands of people in the streets.

It took five days of these massive demonstrations and the government caved. They have now announced that they are rescinding their law that made corruption legal. Protest sometimes works.

This is Republican Congressman Tom McClintock trying to have a community meeting in his California district this weekend. This is what it looked like. Tom McClintock facing his constituents.

This was Lincoln, Nebraska, constituents unhappy with Republican Senator Deb Fisher demanding that she meet with them and talk about her votes for the Trump cabinet nominees.

This was Illinois Republican Congressman Peter Roskam. Look at this crowd that met him at one of his community events this weekend. They are saying meet with us, meet with us.

At one point, they switched to 2018, 2018. Not so veiled threat. They said, hey, Peter, we vote.

Protest works. Not every time but sometimes protest works.

And tonight, a different kind of protest is going to be working all night in Washington, which is all the more remarkable because these are some of the least likely people to stay up working on anything, no offense. You know, but even when they hold a filibuster, U.S. senators don`t usually stay up super late actually talking.

Tonight, though, Senate Democrats say they will talk all night long if they have to and it looks like they`ll have to. Democrats are holding the Senate floor overnight tonight to talk about the one cabinet nomination they seem most bent on derailing at the moment, the one where they are closest. Tonight, they are within a single vote of stopping the nomination of Betsy DeVos to be education secretary.

Democrats are all opposed to DeVos. A couple of Republicans have pealed off already. Lots of other Republicans have been under tremendous pressure in their home districts and on their Washington phone lines and again today outside the capitol in D.C., lots of Republicans facing pressure to vote no on DeVos.

So, Senate Democrats are putting on inside the system pressure to try to get this done, to try to get this nomination blocked. They are now an hour ten of holding the Senate floor. They need just one more Republican to vote "no" on Betsy DeVos and her nomination will be tossed.

One vote. That`s all they need. They are that close.

Hold that thought. Stay with us.

(COMMERCIAL BREAK)

MADDOW: You are supposed to vet potential high-level nominees in private so they don`t end up getting vetted in public where it counts and tends to stick. For example, the Trump administration`s pick for Army secretary. He`s a former Army Ranger turned trading firm billionaire. His name is Vincent Viola. He got announced as Army secretary, and then up pops the news that he was accused in August of punching someone out at a very fancy highfalutin racehorse auction in Saratoga Springs, New York.

This was public information. How come the White House didn`t know about it?

Then, it turned out that his financial holdings were so complicated that he says it will be impossible for him to divest from his holdings, which apparently is just fine for presidents these days but not for army secretaries.

And so, on Friday, after the close of business, after he had already accepted the nomination weeks and weeks ago, Vince Viola withdrew his name from consideration as Army secretary.

Consider also, Andrew Puzder, fast food zillionaire and the president`s pick for labor secretary. And yes, it might be because all kinds of stuff from his past has bubbled to the surface, including old claims about spousal abuse that he and his former wife rebut. But this is stuff buried no deeper than a cursory Googling. He also faces difficulty with divesting from his various interests. His holdings are reportedly complex and it`s taking him a good long while to get his paperwork in order for the ethics check.

Tonight, Puzder revealed that he and his wife employed an illegal immigrant in their home for years, news that they have apparently just now revealed to the Trump administration because the Trump administration didn`t figure it out themselves. Did I mention that what he`s nominated for is labor secretary?

Puzder has seen his nomination hearing postponed four times now. He still has not a date for hearing. It`s my guess is that he`s never going to get one.

There`s also President Trump`s pick for secretary of health and human services, Congressman Tom Price. His nomination has been delayed multiple times over concerns about him having conflicts of interests, him repeatedly buying stock in health-related companies and then writing legislation that boosted the value of the stock of those companies. Congressman Price has denied doing anything improper but the longer Democrats drag this out, the more damaging headlines pile up and they all seem to be sort of of this stripe.

His wife is a Georgia state lawmaker. She`s also been accepting campaign donations from health companies during her husband`s pending nomination to be health secretary. Just one of these many conflicts that Tom Price is dragging around would likely have been more than enough to sink anybody else seeking a cabinet position into any other administration.

I think the main reason that his nomination might still actually have a chance tomorrow in the Senate is just because there are so many other distracting nominees with terrible problems to tackle, like, for example, Betsy DeVos, the nominee for education secretary. Senate Democrats, as we reported earlier, they are right now holding the floor for a full 24 hours all through the night in opposition to the DeVos nomination. They say she`s unqualified for the job.

And after a rigorous confirmation hearing did not go well for her, Democrats have an argument to make about that. If nothing else, she will be forever remembered for plagiarizing some of her written responses to Democratic questions. Did I mention she`s the nominee for education secretary?

She will also, of course, be remembered for saying that we should allow guns in schools for, quote, "potential grizzly bears". Potentially.

It`s hard to imagine that the Trump administration expected this kind of public drawn-out embarrassing vetting after they had already supposedly vetted her. But that turns out this new administration is terrible for vetting people for all kinds of jobs at all levels.

They might even have turned out to be terrible at vetting their Supreme Court nominee. This is the one they thought was going great. It might not be going great anymore. That`s next.

(COMMERCIAL BREAK)

MADDOW: The new president last week enumerated the qualities he said he liked about his Supreme Court nominee, Judge Neil Gorsuch. His qualities and his qualifications.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Project and Harvard Defender`s program.

(END VIDEO CLIP)

MADDOW: He worked at both the Harvard Prison Legal Assistance Project and the Harvard Defenders.

For a very, very, very conservative nominee, having that kind of big- hearted pro bono work on your resume, that kind of volunteer work, that can really, you know, soften your image, right? Both of those programs, again, the Harvard Prison Legal Assistant Project and Harvard Defender`s Program, provides help to the poor, both of those affiliations were listed in Judge Gorsuch`s biography when President George W. Bush nominated him to the federal bench in 2006.

And, you know, when you are nominated for a federal appeals court, you get a really good vetting. Being up for an appeals court job is a really big deal, but it is an order of magnitude different to be nominated for a seat on the United States Supreme Court.

Did the Trump administration do any additional vetting of Judge Gorsuch above and beyond what the Bush administration did for that appeals court seat 11 years ago? Specifically, was all of this biography accurate?

Today, "The Wall Street Journal" reports on that paper`s struggle to corroborate involvement by Judge Gorsuch in these two Harvard volunteer programs. Quote, "Roughly three dozen students who participated in the two programs while Mr. Gorsuch was at Harvard law school from 1988 to 1991 said they had no recollection of his involvement." "Wall Street Journal" includes quotes from classmates who say things like, quote, "If he was active in the prison legal assistance project, I am sure I would remember him."

"Wall Street Journal" also says that while involvement in the groups was voluntary and only loosely monitored, Judge Gorsuch doesn`t appear, for example, in the yearbook photos of either group, nor is he listed among the members not pictured.

Now, the White House has pointed "The Journal" to one person who says judge Gorsuch was involved in one of the programs. This person says this, exactly, I`m just going to read it directly. Quote, "What I am prepared to do is corroborate that Neil Gorsuch was in the Harvard Defenders. I have a specific recollection of talking to him about one case but I don`t want to go into the details. I`d like to leave it there." He would like to leave it there.

Now, to be fair, Judge Gorsuch may very well have been an active participant in both of these big-hearted effective groups at Harvard Law School. For all we know, these were formative experiences for him, just as we have had described to us by the White House.

But Democrats are already saying they are going to put up the biggest fight possible against this nomination. Mainly on the grounds that Republicans stole the Supreme Court seat by refusing to consider President Obama`s nominee for the whole last year that he was in office. That has been the framework of the fight so far, but if the nominee also has certain holes or certain questions in his resume, stuff that can`t be corroborated more fully than this and in fact lots of people say he wasn`t there -- well, that could change not just the way Democrats wage this fight but it could change the substance that they are fighting on.

Joining us now is Dahlia Lithwick, senior editor and legal correspondent for "Slate" magazine.

Dahlia, it`s great to see you. Thanks for being here.

DAHLIA LITHWICK, SENIOR EDITOR & LEGAL CORRESPONDENT, SLATE MAGAZINE: Hi there, Rachel.

MADDOW: So I have been feeling like Judge Gorsuch nomination from the Democratic point of view is mostly going to be a fight about whether or not the Republicans should get away with never giving a hearing to Merrick Garland and holding that seat open for so long, whether it`s okay for Donald Trump to appoint anybody to the seat. Are things changing now with these kinds of questions being raised by "The Wall Street Journal" that there may be a more substantive type of fight over judge Gorsuch himself?

LITHWICK: Rachel, I`m going to do something I never do, which is push back a little on this and I think that, you know, this question of, you know, was he in this group or that group and, you know, was this misrepresented? These are the kinds of questions that seem to me really hung up the Alito confirmation hearing. You remember, we had a big fight about whether he was a member of a group at Princeton.

I guess I just feel as though the first thing you said is so true, which is this is a referendum on norms, this is a referendum on a stolen seat, and I always feel that these questions about are you a good person as represented by, you know, these handful of behaviors, never goes well. I`ve learned to call it the sort of cardiologic model of confirmation hearings, what`s in your heart, are you a good person, you know, get out the pet scan, get out the cat scan. I don`t find an enormous amount of utility in this inquiry, particularly right at this moment where in addition to the fact that the seat has been stolen, I think we have existential question about presidential powers and whether there can be an independent judiciary that acts as a check on the president.

And so, to me while this is interesting and sort of, you know, worth pursuing, boy, I hope this is not the main event at a confirmation hearing that might be the last best chance to talk about an independent judiciary and Donald Trump.

MADDOW: I`m going to push back on your pushback because we can do that here among friends.

The thing that seems interesting to me about this is not -- it`s not are you a good -- it`s not an are you a good person question. It`s a -- is there something false in the biography here? Is there a misrepresentation here?

I mean, I do think -- I guess I`m a person who, you know, thinks that prison legal assistance is an important and cool thing for lawyers to do, and because providing pro bono assistance to people who can`t afford good lawyers to get Harvard-trained lawyers to help them out I think is a cool thing for lawyers to do. I like hearing that about him.

Clearly, the White House likes bragging on that about him. But if they didn`t have those things to say about him, I wouldn`t go looking for him, you know what I mean? It seems like the concern here or the potential concern as the "Wall Street Journal" raised is it there might be something wrong here in terms of the way he`s mischaracterized his own past. Or that the White House might have screwed up the vetting here somehow and that we can`t necessarily trust what they`re telling us about him.

Does that -- does that nuance at all affect that or still feel like it`s a Merrick Garland discussion, full stop?

LITHWICK: No, I want to push back on your pushback.

MADDOW: Yay.

LITHWICK: I think we`re there now.

Which is simply I think if we want to be fair, you know I have huge reservations about Judge Gorsuch`s record and how I think he will be Scalia-like in almost every important way, but I do think if we look at his judicial record and we sort of drain out the conversation about what he did or didn`t do at Harvard -- I think he`s actually been pretty good on some of these issues of prisoners, on some of these issues of whether the criminal justice system is fair to prisoners.

And so, I guess I would just say -- again, I stipulate, you`re right, he should be vetting. These questions should be asked. But I actually think heavier on the scale for me is that I actually think he has been very much Scalia in some of these cases, awfully good about sort of downtrodden defendants. I might want to give him that. And like I say, shift the focus back to, do you believe there`s such a thing as a "so-called judge" and do you believe there should be an independent judiciary? Those are the questions that just seems to me this is the hearing to have that conversation.

And to dilute it with what seems to me, you know, important but not singularly important conversation about what you did in high school or law school -- I don`t know, Rachel, I think this is the one chance to really teach the American public what three branches of government and checks and balances really look like.

MADDOW: Don`t grimace. That`s why you`re here, Dahlia. That`s the whole point.

(LAUGHTER)

MADDOW: Dahlia Lithwick, senior editor and legal correspondent for "Slate" magazine, all-around good person and excellent pusher back when need be -- Dahlia, thank you. Appreciate you being here.

LITHWICK: Thanks, Rachel. Thanks.

MADDOW: All right. We have some new reporting tonight on a strange and funny and wacky idea that is becoming way more important in our politics. That story is next.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: Closing thought tonight. We learned today that the president is close to naming a Silicon Valley investor to run the Food and Drug Administration, the FDA, which is in charge of keeping our food safe and making sure among other things that vaccines and drugs are safe and effective.

The man who`s in line to lead the FDA is not a doctor, has no medical background, unlike any other FDA director for the last half century. Bu he does have a couple ideas on how to improve the health of all Americans

(BEGIN VIDEO CLIP)

JIM O`NEILL, MITHRIL CAPITAL MANAGEMENT COO: In a free market, particularly at Seastead, or any other free market in health care, people will be much healthier as well as wealthier. After I go through a lot of examples, I think I`ll demonstrate why the healthiest societies in 2030 will most likely be on the sea.

(END VIDEO CLIP)

MADDOW: Did you say on sea, on the sea in a Seastead?

Yes, the man reportedly aligned to head the Food and Drug Administration, he`s been part of a movement to reclaim freedom and liberty by starting new countries on the sea, by tying together like shipping containers and putting them on the ocean then living on them and calling it a country.

(BEGIN VIDEO CLIP)

O`NEILL: In a free market such as a Seastead, people would have much more incentive to keep themselves healthy and fit and eat right and prevent chronic disease. Seasteads offer a great opportunity not just for the people who live on the Seasteads to good efficient care of high quality but also for people who come in specifically for that purpose. In terms of efficiency, and affordability of health care, it was much greater a century ago.

(END VIDEO CLIP)

MADDOW: So, shouldn`t we all move out to floating barges on the ocean and then health care can be as efficient and affordable as it was a century ago? It`s a full employment program for leeches.

So says the man who is reportedly Donald Trump`s top contender to head the United States` Food Drug and Administration. If a life of freedom and great health care on a libertarian floating country is not enough for you, he`s also pursuing immortality, at least for a select few.

Here`s the possible next chief of the FDA giving a speech on how venture capitalists and investors can get us to immortality. We can live forever. If we can only invent good new business models that will make us live forever. He calls it rejuvenation and reverse aging.

He said in that same speech that maybe when it comes to pharmaceuticals in this country, maybe we should not have clinical trials for drugs anymore at all. Just put the drugs all out on the open market, let people use them, see what happens and the free market will sort it out. And, yes, of course, that would change decades of policy for how we determine whether drugs are safe and effective. It`s such a radical shift that even a lot of pharmaceutical companies are on record as worried about this guy now being in charge.

But honestly, it`s sort of hard for me to focus on that when he`s devoted so much of his time and energy to promoting the creation of independent nations of manmade islands in the sea where we will all live forever.

The president has already made a lot of wacky nominations, but apparently he`s just getting started. Peter Thiel apparently referred the guy, so presumably he`s going to be perfect.

That does it for us tonight. We`ll see you again tomorrow.

Now, it`s time for "THE LAST WORD", Ari Melber sitting in for Lawrence tonight.

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