Show: The Rachel Maddow Show Date: February 9, 2017 Guest: Bob Ferguson, Nina Totenberg, Anthony Romero, John Archibald
RACHEL MADDOW, MSNBC HOST: And thanks to you at home for joining us this hour. Lots going on tonight, obviously, as we are absorbing this unanimous ruling from the federal appeals court, the Ninth U.S. Circuit Court of Appeals.
Bottom line, by now, you have heard the president`s ban is not in effect, he refugee ban, the travel ban on people from majority Muslim countries. It is legally blocked by this ruling. The Trump administration has been denied again in its efforts to have its ban reinstated.
And we`re going to hear in just a couple of minutes from some of the people who have been involved directly in this case, including the man who brought this case. We`ll hear about what this means, what is expected to happen next. We`ll hear about how -- sort of what the scope is of this ruling, what the judges could have ruled on and what they did rule on.
But, you know, for those of us who aren`t lawyers and those of us who are watching this case so raptly, not just because we care about this policy but also because we care about our country more broadly and we`re wondering what this new administration is going to be like, we wonder what they`re going to do, we`re interested in this as the first big fight between the judicial branch of government and this new executive branch of government coming to power with President Trump.
For those of us who have been watching it because of those bigger dynamics, not just stuff specific to this policy, I want to bring to the table two things tonight. that I think are important to understanding those bigger levels of importance. And one of them is something very specific. One of them is some new polling data among Trump supporters as to whether or not Trump supporters think the new president should follow court orders even if he doesn`t agree with them.
We`ve got that new national data exclusively here tonight. Nobody else has this. We`re gong to break that news tonight. It will curl your hair when you hear it and I think it`s important to hear. We`ve got that coming up in just a few minutes. That`s one.
The other thing I want to bring to the table, though, is from this ruling itself. You know what the bottom line is, right? The bottom line is the ban cannot go back into effect. The ban is legally enjoined. It`s not in effect right now.
But beyond that bottom line, at several points in this ruling, the judges in the Ninth Circuit Court appear to -- again, I`m not a lawyer, but it appears they basically have to explain some very basic, very basic civics and government to the new administration, like fifth grade stuff because at least the way the ruling is written, they seem to think the government doesn`t know basic stuff about what they`re supposed to do and how stuff works. So, I just want to point out a couple of these instances in the ruling because I think it seems important regardless of the specifics of this policy.
I think it seems important. We`re all watching to see what happens when the judicial branch and the Trump administration come into conflict. Now that we have seen that happen, one of the things that have been exposed by that conflict is that the court has had to explain stuff so basic, you would expect a high school freshman to have already mastered it and the court had to explain this to the administration because the administration didn`t know it already so let me give you a couple of these from the ruling.
Here`s the first one. Even if you are not a lawyer, you will see what I mean here, this isn`t like a complex point of order. This is like hey, duh, you guys. It`s footnote eight, this first one I want to show you. Footnote eight, quote, "The government asserts that unlike the president, courts do not have access to classified information about the threats posed by terrorist organizations operating in particular nations. The efforts of those organizations to infiltrate the United States or gaps in the vetting process".
But -- you can sort of hear the court`s voice here, you guys. "But you guys, the government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that." And they give a list of those rules and regulations by which courts very regularly receive classified information and keep it under seal. Right?
I mean think about this. It`s one thing if you`re in politics, you here in the administration, one thing to tell the public, oh, you don`t know the scary stuff we know. If you knew, you`d support everything we`re doing. It`s one thing to say that to the public, to say that to the press.
But you can literally not say that to a federal appeals court because if there`s something important in the information you`ve got about terrorism, if there`s some important classified information that you`ve got that is Germane to why you have to take this policy action, you can show that to the court. The Supreme Court is allowed to see anything you want them to see.
Federal court sees super-duper tippitytop classified information all the time. You guys know that, right? It`s not actually a defense against review by the judiciary that the judiciary hasn`t seen what you`ve seen. If that`s your argument, you then have to show them what you`ve seen. You don`t get that?
Here`s another one. That`s footnote eight. That`s my personal favorite. Here`s another one. This is the part where the Trump administration is telling the court, don`t rule on anything in the ban, don`t rule on anything in the executive order that has to deal with legal permanent residents, that has to do with people with green cards.
Remember when they implemented this in the first place and this was all this confusion as to not just whether or not people who were citizens of other countries could come visit, but what happened people who had green cards? What about people who are legal permanent residents of the United States who are basically all but citizens? They can do everything but vote.
People who lived here for decades. People could clear -- you`re going to apply it to them, too? Yes, we are. No, we`re not. Are you applying it to them? We sure are. There was all this confusion about that, right?
Well, in the court ruling tonight, they addressed the fact the government is saying, hey, listen, don`t rule on anything that has to do with people with green cards, we`re saying the ban doesn`t apply to them anymore.
Here`s how that looks in the ruling. This is on page 21. Quote, "The government has argued that the state`s challenge to the executive order based on the order`s application to lawful permanent residents, that challenge is moot because several days after the executive order was issued, White House counsel Don McGahn issued authoritative guidance stating that the executive order doesn`t apply to lawful permanent residents."
That`s what you`re saying. You`re saying they shouldn`t challenge that because we say it doesn`t apply to green card holders. Well, here`s the burn from the court. Here`s what the court says.
Quote, "At this point, however, we cannot rely on the government`s contention the order no longer applies to lawful permanent residents. The government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the executive order signed by the president." And that proposition seems unlikely.
Quote, "The White House counsel is not the president. And he is not known to be in the chain of command for any of the executive departments. Moreover, in light of the government`s shifting interpretations of the executive order, we can`t say that the current interpretation by the White House counsel will persist past the immediate stage of these proceedings."
In other words you guys, it`s called an executive order. You can`t just say, oh, you know what? Don`t rule on that part of the executive order, we`ve decided to change that now, never mind what it says.
That`s not how it works. The White House counsel says, don`t pay attention to that part of the executive order anymore? That`s not good enough. It`s still until the executive order.
So, stuff like this in the ruling tonight. It is materially interesting I think because it implies that the new administration is not only getting clearly shut down by the courts they`re also completely blowing it on basic stuff.
I mean, the nut of this ruling is that the Trump administration is wrong when they say the president has unreviewable authority to do whatever he wants on immigration. The court knocks that one`s head off, right?
This is the part you`ve seen quoted all night. "There is no precedent to support this claimed unreviewability which runs contrary to the fundamental structure of our constitutional democracy". I mean, that`s the nut of this here. And that`s as simple as it gets.
No president has unreviewable authority. No president in American laws says a president has unreviewable authority. Even on national security, even on immigration, of course, the president is reviewable, that`s why we have a judicial branch of government that answers only to the Constitution. That`s the nut of the ruling.
Even on that point, though, I can get that there will be a fight about that. There can be a fight about that. There will be a fight about that.
The part that takes me aback is the dumb stuff, right? I mean, they don`t know that a presidential executive order actually means what it says? And no one other than the president can fix it if it is screwed up, right? They don`t know that courts can look at secret stuff?
I mean, that`s not just regular legal back and forth. That`s like watching Roger Federer trying to play tennis with a two-year-old. But, wow, this is our government now.
Joining us now is Bob Ferguson, the attorney general of Washington state who, it should be noted, won tonight. It was his office that brought this challenge to the executive order.
Mr. Attorney General, appreciate your time in the midst of all this. Congratulations on your win tonight.
BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Thank you so much, Rachel. Great to see you again.
MADDOW: So, you expressed confidence from the very beginning that you thought you would prevail in this case. Did you prevail in the way that you thought you did? One of the things I thought was interesting about the ruling is that the judges made decisions to weigh in on certain parts of the argument, and others, they put aside and said we have no need to weigh in on those pieces of it. Did this happen the way you thought it would?
FERGUSON: Let`s put it this way, Rachel, it`s a unanimous ruling and we could not have written a better ruling from our perspective. The court essentially granted everything we wanted at this stage of the proceedings.
MADDOW: What happens next?
FERGUSON: That`s up to the federal government. They can appeal or seek review from the U.S. Supreme Court. Again, I do not think that they will find much in their favor with the Supreme Court. So, what`s going to happen is it will go back to Judge Robart, the trial court judge appointed by George W. Bush who granted the temporary restraining order and will have proceedings on the merits of our claims and discovery where we can see depositions and documents from the administration to make our case.
MADDOW: OK. So on the discovery and depositions part of it, one of the things that was very interesting about tonight`s ruling is that the judges brought into their ruling public statements from the administration. They referenced the exhibits, the evidence you provided which you said essentially proved the intent of the ban. You said the statements by the president, statements by members of the administration indicated this was basically intended to be a version of a Muslim ban and so that showed something about the state of mind that led to this executive order.
If it goes back to the trial court and you can do discovery and take depositions and stuff, will you be try to figure out how this was written, what the intentions were behind writing it the way it was written who took part in putting it together?
FERGUSON: Yes to all of the above. That`s exactly right. Part of our case, we have many claims, as you know, Rachel, both statutory and constitutional, but when it gets to that issue of -- on the religious side, preferring one religion over another, yes, we are entitled to seek documents, to take depositions, to help establish our case.
And one thing that`s important to point south that trial court judge, Judge Robart, in order to grant that temporary restraining order, one thing he had to determine or grant that significant relief is a likelihood that we will ultimately prevail on the merits, which is I think is a clear signal which direction this case is ultimately heading.
MADDOW: If it does proceed the way you are expecting it to, do you anticipate you`ll get sworn testimony from the president himself at some point?
FERGUSON: Like I said, I don`t want to get out ahead of my team on this. We`ll obviously be having a thoughtful approach this. But you can be sure that I will use every tool at my disposal, Rachel, as we have so far, to make sure the president is held to the rule of law and his administration. I will absolutely accept nothing less than that.
We`re a nation of laws. Everybody must follow our laws and that includes the president of the United States.
MADDOW: Washington State Attorney General Bob Ferguson, I know a very busy night for you. Thank you for taking time to talk with us. I really appreciate it, sir.
FERGUSON: Thank you, Rachel. I appreciate it.
MADDOW: Thank you.
I want to bring in to the conversation now, the great Nina Totenberg, legal affairs correspondent for NPR.
Nina, it`s really nice to see you this evening. Thank you very much for being with us.
NINA TOTENBERG, NPR LEGAL AFFAIRS CORRESPONDENT: My pleasure.
MADDOW: Can you give us a layman`s understanding of what the court could have done and how much they did within that realm of possibility? How far did they go and how emphatic was this ruling?
TOTENBERG: It was pretty emphatic but still pretty limited, because all this was about was the temporary restraining order, the stay on the government from continuing to enforce that executive order. So, now, comes the question of whether the order itself is constitutional or not within the statutes and there are lots of arguments on that.
MADDOW: Do you think the Washington state attorney general who we just heard from is right in assessing that probably the next step here is that this is going to be back with the trial court judge? Back with the district court judge and it will be a matter of working this out on the merits, taking depositions, getting -- using discovery to get to both the intent and the impact of this order?
TOTENBERG: I think that`s probably right although you can never be sure. I would doubt the Supreme Court really wants to get into this now. Courts usually like to have a record, something to base their opinion on, and the Ninth Circuit panel made the compelling argument in their decision that the government hadn`t shown that it was irreparably harmed, whereas the people who were being hurt by this were being irreparably harmed, and that the government hadn`t shown there was any serious danger, that they were free to do that, they hadn`t done that, but the people obviously were being harmed by this.
So, my guess is that the Supreme Court, especially with only eight members, would rather not touch this right now and I wouldn`t be surprised if the administration -- I mean, Donald Trump tweeted tonight, "See you in court, the national security is at stake." But it might be the better part of valor to write a more circumscribed executive order, have the president of the United States sign it and try to defend that.
MADDOW: Does it matter that there isn`t a new solicitor general? We reported last night that Chuck Cooper, conservative lawyer from Washington was a leading contender to be the solicitor general in the new administration. Today, he has pulled his name from contention. They don`t have anybody in that position. Obviously, the attorney general has been in office for a day.
As the administration starts to gel with getting more people into top legal positions, do you expect that we might see a change in strategy or just in tone from them on this?
TOTENBERG: We might. I mean, they have so few people in place and some of the acting people were Don McGahn`s law partners and have refused themselves from signing on to -- they took their names off the brief, perhaps with an excess of caution about potential conflicts of interest, but they did.
And, you know, people who come into the new administration in the first days talk about walking down empty halls, seeing empty garages with no cars because all the people who run these departments are gone and what they`re replaced by with this time in a rather extraordinary way are people who don`t have much government experience. So, they don`t -- they haven`t been through this before. And it`s showed in some of the execution, shall we put it.
MADDOW: Certainly, it seemed that way, and the way that the ruling was written about some of the particulars of this order.
Nina Totenberg, legal affairs correspondent for NPR, thank you so much for being with us tonight to help us understand it.
TOTENBERG: My pleasure, Rachel.
MADDOW: All right. As I said earlier, still ahead tonight, we`ve got something to add to the conversation around this. I think add to the big picture observation about this administration coming to loggerheads with the judicial branch for the first time. We`ve got something to add to that that you can`t get anywhere else that we`ve got exclusively tonight which is new national polling among Trump supporters as to whether they think the president should follow court orders he disagrees with.
It`s pretty stunning stuff. We`ve got that ahead exclusively tonight. We`ll also be joined live tonight by the executive director of the national ACLU, Anthony Romero.
It`s a big night. Stay with us.
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MADDOW: So, we are still absorbing the news tonight of this new ruling from the Ninth Circuit U.S. Court of Appeals. This is a court one level below the U.S. Supreme Court.
A unanimous panel of that court tonight brushing back the new administration once again on the refugee ban and the Muslim ban. But to that conversation, we`ve gotten an important piece of new data to add to the understanding of what this means, because everybody is wondering about how this new administration, this new president is going to test the strength of our constitutional system, right? Everybody is wondering if the president will feel bound to respect the courts, particularly if the courts keep blocking his policies like they`ve been doing so far.
Well, we`ve got new information tonight that gives us I think an important metric on that front. Now, we`ve got this exclusively tonight, brand new national polling data from PPP. This is the second time in a few weeks from Public Policy Polling has given us a look at this data. And I`m thankful to them for letting us see it first.
I think tonight, this is particularly on the nose newsworthy because in one important instance, it shows us the difference between where the country is at in terms of accepting this new administration and approving or not of what the new president is doing. It shows us the distance between where the country is at as a whole, and where Trump supporters are at.
And watch what that looks like when it comes to whether or not the president ought to obey the rule of law, whether he ought to obey the federal courts or not.
OK, so first let me give you kind of the big picture. The White House is not going to like any of this, overall. But I`m going to give you the top line national results here. I will go through these quickly. They all point the same direction.
Do you approve or disapprove of President Donald Trump`s job performance? Answer, disapprove, 43 percent-53 percent. A net 10-point disapproval rate.
Do you have a favorable or unfavorable opinion of Donald Trump? Answer, unfavorable.
Do you support or oppose Donald Trump`s refugee and Muslim travel ban? Oppose.
Do you think the ban was well-executed or poorly executed? Poorly executed.
And then the answers to the subsequent questions just go exactly the way you`re thinking they`re going go, exactly the way the White House doesn`t want to see.
Do you think the intent of the executive order was to ban Muslims from the United States? Answer, yes. It was the intent of that order to ban Muslims.
Do you support or oppose banning Muslims from the United States? Answer, by a large margin, oppose.
Who do you trust more to make the right decisions for the United States -- judges or Donald Trump? Answer, judges.
Do you support or oppose the Affordable Care Act? Answer, support.
Do you want Congress to repeal the Affordable Care Act? The answer is no. No by a lot, do not repeal it.
Americans also say by a large margin that Donald Trump should release his tax returns. Americans now say by a larger margin he should divest himself from his business interests, something he has not done.
In terms of the new administration`s other signature policies, Americans, since you asked, oppose building a wall with Mexico if American taxpayers have to pay up front for the wall. Americans don`t think millions of people voted illegally in the last election even though the president says they did.
And look at this one. Asked about the "New York Times" and "Saturday Night Live," Americans think both of those institutions have more credibility than President Donald Trump. So, it`s just unrelentingly bad news for the new administration in this new national poll.
In terms of how the country views the president, his policies, his credibility, I mean, broadly sneaking the country doesn`t even believe him when he asserts that something is true.
This is interesting, though, even though every question in the national poll turns up a top line result that is bad news for the new administration, look at this. This is question 32 in the new poll. "Would you support or oppose impeaching Donald Trump?" Answer, dunno. Hmm, sure, 46 percent of the country is all ready to impeach the president less than three weeks into his time in office and that`s remarkable, but look at the opposed number. Even Steven, 46-46. And almost 10 percent of people say they`re not sure.
So, maybe that`s some comfort to the new president. Three weeks to his first term, he`s still four points away from an actual majority of the country wanting him impeached.
Of course, there`s another way to look at the impeachment number, which is worse for the new president and the new administration. Think about it. It`s kind of interesting, right?
I mean, you look at results of this poll, people not liking the new president, not liking his policies, not believing him, not trusting him. It`s kind of interesting in a poll like this, the only question where he`s not underwater is should he be impeached? That`s interesting, right?
Here`s the black cloud inside that silver lining. I think the really bad news for the administration here is that this might be why we`re getting that result on the impeachment question. Look, quote, "Who would you rather was president? Mike Pence or Donald Trump?" Answer from the American public. Ooh, not sure.
Despite these spectacularly negative polling results for everything having to do with the new president, the only place he comes close to a positive polling result is when people are asked to consider if Mike Pence might be even worse. So, yes, maybe hold off on impeachment for a minute. That would make Pence president? Yes, not sure.
Again this is new national polling data from PPP. We`ve got this exclusively here tonight. But here is the on-the-nose part that I think is really important for what just happened this evening in the Ninth Circuit Court, and the angry response the president has already had to this court, and to other multiple federal judges who have ruled against him on his refugee ban and Muslim ban so far. This is what you get if you ask Americans as a whole, quote, "Do you think Donald Trump should be able to overturn decisions by judges that he disagrees with?"
Asked the whole country, yes or no, the answer, resoundingly, by almost 40 points is no. No, of course not. We`re Americans. We know how the Constitution works, right? The president should not be able to overturn decisions by judges just because he disagrees with those decisions. That`s the national answer.
But now look at this. Ask that same question to Donald Trump supporters and this is what you get. Donald Trump voters, an actual majority of them, say that Donald Trump should be able to overturn decisions by judges that he disagrees with, 51 percent of Trump supporters say, yeah, yeah, he should.
And so, tonight, the judiciary once again in the biggest way yet, said no to the president. This three-judge panel, the federal appeals court judges unanimously ruling that the Trump refugee ban and Muslim ban cannot go into effect. Trump voters say this president should be able to throw that ruling aside and do whatever he likes.
There`s a slim majority, 51 percent of Trump supporters, but that`s a majority of Trump supporters, wildly different than the rest of the country`s view on the subject, wildly different than anything the Constitution would allow, but honestly, stick a pin in that, man, that`s an important benchmark to note here.
What does this make him feel like he can do? And does that number among his supporters rise even further if he keeps attacking judges and he keeps attacking the courts that are now standing in his way? I think this is a benchmark moment here. This is important stuff. Watch this space.
We`ve got Anthony Romero from the ACLU here, next.
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(BEGIN AUDIO CLIP)
REPORTER: Any kind of reaction that you might have for us here on the court ruling, Mr. President?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We`ll see them in court.
REPORTER: So you`re going appeal, take this to the Supreme Court?
TRUMP: We`ll see them in court. It`s a political decision that we`re going to see them in court and I look forward to doing it.
REPORTER: So, you believe the judges made a political decision?
TRUMP: We have a situation where the security of our country is at stake. And it`s a very, very serious situation. So, we look forward -- as I just said -- to seeing them in court.
(END AUDIO CLIP)
MADDOW: That`s the new president reacting to tonight`s court ruling against his retch gee ban and Muslim ban. NBC News spoke to him in the West Wing right after he heard about the ruling, he said he heard about it on the TV. He said he was on his way to dinner with Secretary of State Rex Tillerson and billionaire Republican donor Sheldon Adelson. I wonder what they`ll be talking about over dinner.
Joining us is Anthony Romero, president of the ACLU, which filed an amicus brief on behalf of the state of Washington in this case. I should tell you that the ACLU has filed a dozen cases on the travel ban thus far, including the very first case that got the first ruling against the ban in New York.
Mr. Romero, thank you for being here.
ANTHONY ROMERO, ACLU EXECUTIVE DIRECTOR: Hello, Rachel.
MADDOW: First of all, when the president says it`s a political decision, what does mean? What does that sound like to you? What do you think is important about that?
ROMERO: He`s trying to dismiss the courts again. It`s like these so- called judges, trying to undercut the credibility of our courts. And what`s remarkable is when he steals our tag line "see you in court", I feel like I want to sue him for that. This was my tag line back in September and October.
But yet, the president really does very cumbersome things that are troubling and problematic. The idea he says that we`re going to question the validity of these judges, that it`s a political decision undercuts the credibility of our court, troubling even his Supreme Court nomination Mr. Gorsuch in talking with senators than disheartened by some of those comments. And then the polling you just showed, the impact it has on the American people on his supporters.
We call Trump a one man constitutional crisis back in July and it`s clear now when you look at these polling numbers and the dog whistle politics that he`s engaged in, that this really does go to the heart and the credibility of our constitutional system.
MADDOW: And what`s the remedy? I mean, if we think of the courts as the protectors of the Constitution, the people who ensure that nobody in any part of government can act in a way that violates the Constitution and we expect that their orders will be followed. If that is going to come into question, what do you expect will be the remedy?
ROMERO: I think the remedy has to come from a vigorous public debate where American citizens continue to put the pressure on Mr. Trump. Not -- even those who agree with him to say we believe in these courts. These courts are essential. They`re American. We need the Republicans to find their spine and use their tongues, right?
They`re all holding their breaths and pretending they`re not washing this disaster play on the national scene and if we have real leaders in Mitch McConnell and Paul Ryan and they believe in the court system and they believe in the oath that they took to be in Congress and the Senate, they need to speak up, because otherwise, their whole constituency, that 51 percent that believes Mr. Trump doesn`t have to follow the judicial orders, that`s their base. That`s not Trump`s base, that`s also their base. So, what are they going to do to fix their base?
MADDOW: Looking at this ruling tonight, I`m not a lawyer, but it`s my reading of it that in addition to ruling quite emphatically and definitively on the matter at hand, the court really sort of had to school the administration on some basic matters of governing and procedure.
ROMERO: Yes.
MADDOW: Your counsel saying something about an executive order is not the same thing as changing the executive order.
ROMERO: The absence of a record or some evidence that they didn`t submit.
MADDOW: Yes, and their basic claims about case law which were wrong in terms of what the precedent is that you have to follow around the reviewability of the president`s actions.
So, they don`t have a new solicitor general in line. They have had a new attorney general for a day. Do you actually expect their competence, their basic ability to enact what they want to enact is going to get better and that`s going to make it harder to fight them?
ROMERO: It has to get better. It can`t get worse. I mean, if they don`t up their game they`re out of the game.
It`s clear they haven`t put forward the best arguments in the courts. They haven`t put the report in a way that`s convincing to the Ninth Circuit or even the district court judge. I still think that we have a credible case. I mean, I think the attorney general in Washington has done a fantastic job with this case.
There are dozens of lawyers working on these cases. We have 12 cases on the Muslim ban but there are dozens of lawyers all across this country, IRAP, the Yale Law clinic, the Immigrant Legal Resource Center, they`re all bringing these types of cases, they`re being schooled by the best immigrants` lawyers in the country. I think ultimately we win.
MADDOW: Even if they, like Nina Totenberg suggested earlier tonight that maybe they`ll rewrite and try to get it closer to constitutional muster by just doing a better job. You think even if they do the best possible job in presenting this policy, rerolling it out on the merits you can`t beat them?
ROMERO: Yes, because they can`t do etch a sketch on it. They can`t erase the clear racial bias. They can`t erase the comments of President Trump on Christian Broadcast Radio wanting to carve out exceptions for minority religions so he could protect Christians.
It`s really -- they try to back up and do it all over again. They still have all this history that it`s clear what they`re trying to push. It`s unconstitutional -- and look at the public opinion. Step back from the court for a second.
We`re winning in the court of public opinion. People are turning out in these protests are still going on at the airports, the spontaneous protests at the courthouse when we won our case, that initial first stay, that Saturday after the first filing of the executive order. People are activated in a way that`s remarkable, in a way I hadn`t seen in the last 15, 16 years.
MADDOW: Yes.
ROMERO: I don`t think they win this one.
MADDOW: And bluntly in this new polling that we`ve got people are against what he`s done in the executive order, they think it was an attempted Muslim ban, they don`t want to ban Muslims and by the way, they don`t like the new president.
Anthony Romero, president of the ACLU, thank you for coming in tonight.
ROMERO: Thank you. Always great to see you tonight.
MADDOW: I heard you were supposed to be here that was way more fun than being here tonight. You canceled your plans to come in. Thank you.
ROMERO: But I`m here with you, I`m delighted.
MADDOW: Thank you.
All right. We`ve got much more ahead, including one Republican congressman who was having a whale of a huge and boisterous town hall as we speak. We`ve got a camera there. Stay with us.
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MADDOW: Welcome to Morris, Minnesota.
Morris, Minnesota, is in western Minnesota, out in the plains. It`s a really tiny town, it`s really cute. Population about 5,000 people. This is their stoplight.
The county that includes Morris, Minnesota, went double digits for Trump in the last election. But look at this. In little Morris, Minnesota, they now have 300 people signed up for one of these Indivisible groups, people that are using the Indivisible guide to plan their activism to oppose the new administration and their agenda.
There`s 5,000 people in the up to, that`s how many people they got to turn out for their first Indivisible meeting. That`s Indivisible Morris, Minnesota. They will now be part of these visits and protests by local voters to the offices of their lawmakers.
We have been watching these evolve over the past three weeks. As you would expect, people are starting to get more resourceful. That one we just showed there, that was in Jim Risch`s office in Idaho. Indivisible Idaho. That`s amazing. People are getting more resourceful over time.
In Troy, Michigan, Congressman Dave Trott`s office posted a sign on the door that said "we do not accept walk in appointments." That meant the guy in the chicken suit had to wait outside.
But inside, these constituents from Dave Trott`s district just posted their feedback right on his office door since they wouldn`t let them in the door so he`ll have notes waiting for him. Thank you very much.
It`s kind of an important dynamic in terms of trying to understand the actions of our legislators to know what`s going on in their home districts. People who have not been active in politics before are barnstorming their legislators in huge numbers and asking them to listen up.
This weekend, Oregon Senator Ron Wyden held a town hall in his home state, more than 1,500 people showed up. A lot of them people who said they had never gone to a town hall before.
In Utah, the district represented by Congressman Jason Chaffetz, his constituents have been hounding him for weeks to hold a town hall. He finally announced one for tonight and more than 1,200 people from his district RSVP`d. That town hall is tonight and this is how they welcomed Congressman Chaffetz as he walked out on to the stage.
You can hear a hail of boos and saying "do your job, do your job." They have been jeering and chanting on and off. He`s been struggling through a Q&A with this roomful of his constituents, but he`s still hanging in there trying to answer questions. Good for you for finally doing this, Congressman, but this is a town hall where 1,200 of your constituents RSVP`d so they could ask these questions they`ve had bottled up for weeks. And I think it`s not going to get easier as the night goes on.
But this is going on right now, right this second in Jason Chaffetz` district in Utah. Talk about timing.
(COMMERCIAL BREAK)
MADDOW: Five days before the election in November, the governor of Alabama, this handsome devil, Republican Governor Robert Bentley, he got some excellent news. That sweet, sweet, sweet news was that the Alabama House impeachment investigation against him had been put on pause, had been put on hold. You might remember last year Governor Bentley made national headlines for his involvement in a surprisingly high octane sex scandal for this retired dermatologist and church deacon.
The crusading family values Republican governor had allegedly been having an affair with one of his close advisers, he denied it, but the scandal blew sky high with the release of a sex tape, an audiotape in which the governor could be heard saying a lot of very specific lurid things about how -- what he wanted to do to and with his lover, who he denied was his lover. That`s burned into my brain like somebody wrote it there with a branding iron.
Anyway, once the tape and the rest came to light, a committee in the Alabama legislature launched an impeachment investigation into whether the governor used state resources to help cover up the affair. By September, that committee issued subpoenas for the governor`s documents. The investigation was proceeding but then five days before the presidential election, November 3rd that impeachment inquiry into the legislature got put on hold, got put on hold at the direction of the state attorney general, Republican attorney general of Alabama, his name is Luther Strange.
He told the legislature that their investigation could interfere with this investigation. They should put their proceedings on hold. Let the A.G. take it from here. The attorney general wrote a letter to the legislature, November 3rd that said it would be, quote, "prudent and beneficial to delay the work of the House Judiciary Committee," quote, "I respectfully request that the committee cease active interviews and investigation until I am able to report to you that the necessary related work of my office has been completed." Letter dated November 3rd.
Five days later, Donald Trump won the presidential election. Today, Alabama Senator Jeff Sessions was sworn in as the country`s 84th attorney general.
And back in Alabama, Governor Bentley got to announce who he would pick to replace Jeff Sessions as Alabama`s senator. Want to guess who he picked?
It`s too easy. Obviously, he picked the attorney general, Luther Strange, the guy who put the kibosh on the investigation in the legislature because of his own related investigation. Today, he jetted to Washington to be sworn in as your newest United States senator.
Back in Alabama, today`s events were greeted with headlines like these. "Robert Bentley`s Strange Bargain Sets New Benchmark for Alabama Corruption." Or this one, "Luv Guv`s Strange Appointment: Naked Alabama Politics."
But at today`s announcement in Montgomery, the Alabama press corps was assured there was nothing to see here, all totally above board.
(BEGIN VIDEO CLIP)
REPORTER: Senator, some critics have said that the appointment after you called for a pause in the investigation looks bad. Can you respond to that? Having an issue in the election --
SEN. LUTHER STRANGE (R), ALABAMA: You know, I think -- I don`t see it as an issue. The letter that was sent to the legislature that you`re referring to was sent before there`s even a presidential election. I mean, politics is furthest thing from anybody`s mind as they are always in these kind of cases.
REPORTER: Governor, what would you say about the concerns that there`s a conflict of interest because of General Strange asked for the state investigation to be suspended?
GOV. ROBERT BENTLEY (R), ALABAMA: Let me answer that. General Strange just answered the question. He wrote that letter long before anybody ever thought President Trump would be president.
UNIDENTIFIED FEMALE: Next question.
(END VIDEO CLIP)
MADDOW: Next question. No big deal. Politics was the furthest thing from anybody`s mind.
Let me just put it to you this way, though. Not only did the governor of Alabama just get to give the deal of a lifetime, right, the deal of a lifetime, a job for life as U.S. senator to the guy who may or may not have been investigating him for this thing to potentially get impeached for, but he now also get to pick his replacement as attorney general. So, gets to pick basically the outcome for the investigation of his impeachment scandal and sex scandal, which made today an even better day for the governor of Alabama than that day five days before the election. Amazing.
Joining us now is John Archibald, a columnist for "The Birmingham News".
Mr. Archibald, it`s really nice to see you. Thank you for your time tonight.
JOHN ARCHIBALD, THE BIRMINGHAM NEWS: Thank you, Rachel.
MADDOW: Did I basically get that right? Are those sort of the dynamics here?
ARCHIBALD: Oh, yes, you did. The optics are terrible. But the ethics are far worse.
MADDOW: So, for those of us who haven`t been following the politics here closely, nut up for us here for a second, why this particular appointment is so problematic. I was struck by a comment from the state auditor that of all the people who the governor was considering putting in that Jeff Sessions seat, that the one that you should pray he doesn`t pick, the one that was so ethically disastrous would be for him to put Luther Strange there. Why has there been such concern?
ARCHIBALD: Well, because this is a guy who`s holding a special grand jury that is considering whether to indict the governor of Alabama. And this is the guy who went to the governor of Alabama, regardless of when that letter was filed, and said: Please give me this job, while I am considering whether to indict you or not.
It is one of the most amazingly -- it is just -- it is corrupt on its face.
MADDOW: In terms of what happens next here, obviously the special election is not going to be until 2018. Meanwhile, though, the governor now gets to also pick a new attorney general, right? He gets to replace somebody else to take over for Luther Strange as attorney general. Conceivably the person to take over that investigation, that could lead to an indictment.
ARCHIBALD: Right. And let`s face it. The attorney general himself has not been really involved in these investigations. He`s more like: I don`t want to be involved and let professional prosecutors handle it. A number of the people that are being talked about as replacements are close friends of Bentley or close to Bentley. And it`s really thought that they will -- you know, could go as far as to disband the corruption unit and as soon as that happens, we`re in a whole other world.
MADDOW: John, what`s the opinion about this? What`s public opinion like on this subject in Alabama? Obviously, I know the partisan contours of Alabama. I know it`s a red state. I know that the Republicans have a lock on state government. But how do people feel about this?
ARCHIBALD: They are aghast. I think most of them that I have talked to certainly find it unbelievable and they really do believe if Luther Strange really wanted to be senator for life, he would have had the nerve to say, no, to this appointment and to not seek it.
Obviously, it is difficult to root out a sitting senator. But I think it will haunt him. I think it will haunt both of them.
MADDOW: John Archibald, columnist for "The Birmingham News" in Alabama -- John, thank you for helping us understand. I appreciate it.
ARCHIBALD: Thank you.
MADDOW: All right. We`ll be right back. Stay with us.
(COMMERCIAL BREAK)
MADDOW: OK. We`ve got breaking news.
National security story just posted by "The Washington Post" about national security adviser Michael Flynn and the contacts with Russia. "The Washington Post" just posted this. National security adviser Flynn discussed sanctions with Russian envoy before Trump took office despite denials, officials say.
So, this is something that the national security adviser Mike Flynn had been asked about yesterday. Flynn yesterday denied that he had ever discussed Russian sanctions with the Russian ambassador. Asked in an interview with "The Washington Post" whether he had ever done so, he twice said, no.
Today, however, Flynn sent out a spokesman to retract that denial, basically, to back away from that denial. Now, the spokesman from Flynn says that he indicated that while he had no recollection of discussing sanctions, he couldn`t be certain that the topic never came up.
Obviously, the issue here is twofold. One is that the FBI reportedly is continuing to investigate General Flynn`s contact with the Russians. Whether or not that is specific to the issue of sanctions or whether that is related to what we`re told is a broader investigation into contacts between the Trump campaign and the Russian government while the Russian government was trying to influence the outcome of our presidential election, we don`t yet know.
But the other matter here is that if Flynn as a private citizen before he was sworn in, became national security adviser if while the Obama administration was in office he was communicating with a foreign government to undermine the Obama administration`s stance on sanctions or anything else toward Russia, that would violate federal law in terms of private citizens essentially undermining the foreign policy of the United States. So, again, this is just broken from "The Washington Post" and more on this I imagine over the course of the evening. But we`ll post in at our blog at MaddowBlog.com if you haven`t seen it yet.
That does it for us tonight. We will see you again tomorrow.
Now, it`s time for "THE LAST WORD." Ari Melber sitting in for Lawrence tonight.
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