The Rachel Maddow Show, Transcript 3/21/2017

Guests: Greg Gordon, Dahlia Lithwick

Show: The Rachel Maddow Show Date: March 21, 2017 Guest: Greg Gordon, Dahlia Lithwick

RACHEL MADDOW, MSNBC HOST: Just starting off the show by dropping my pencil.

Let`s not take that as a moment about how things are going to go, although you never know. Physical comedy can make for very interesting news sometimes.

Let`s start that again, ready? Ahem, hello, happy Tuesday. Thanks for being with us this hour.

All right. For a while on Twitter, for a couple years at least on Twitter, if you sent a tweet that included the word "socialist" or that included the word "socialism" or "communist" or "communism," if you put that word in any tweet, you would get an immediate reply from what looked like the Twitter account of the late Senator Joseph McCarthy.

This was the -- you see the response there? Not the initial tweet, right? The first tweet is somebody writing "communism defined." See the response there? You see the little avatar? That`s Joe McCarthy`s face.

Joe McCarthy`s face on the Twitter account, if you tweeted anything that said socialism or communism or socialist or communist, that Joe McCarthy beyond the grave Twitter account would tweet back at you and it had tweet at you something like this "creeping socialism." Or it would say "communist infiltrated."

He was also good at terrible puns. He would say, for example, "on your Marx." This one is pretty good. "Quit Stalin." That Twitter account was, of course, not actually Senator Joe McCarthy tweeting from beyond the grave, instead of the Robot J. McCarthy, it was a bot, a Twitter bot.

There wasn`t, in fact, a person who was reading every Twitter message sent around the world looking for the word "communism" or "communist" and then writing back with a "Quit Stalin" pun. There wasn`t a person doing that. It was an automated thing. It was a robot, an automated account that was programmed to notice any Twitter mentions of socialism or communism and then it would automatically spit out one of these funny pre-programmed Joe McCarthy nonsense tweets in response.

Creeping socialism! It was funny. It was harmless. It was all in good fun.

And sadly now, Robot J. McCarthy is defunct, it`s not around anymore. But seeing that bot in action, seeing the fake Joe McCarthy instant response, anything that includes one of those words, that was the first time I really understood how people could automate social media stuff. How you could program what appeared to be a human online that wasn`t really a human to do stuff that ordinary humans didn`t have the capacity to do, right? No individual human could notice and respond to every single mention of the word "socialism" on all of Twitter.

But a computer program could. Tirelessly. Forever. Ubiquitously, 24 hours a day, 365 days a year, right? Hundreds of thousands, tens of thousands of times, millions of times, why not?

And Robot J. McCarthy, that was a funny way to do it. You can see how that bot technology could be used in a less fun way. A less funny, less harmless way.

Like, say, during an election season. You can see how people relatively easily could program bots to not just make jokes but to latch on to and respond to and get themselves involved in, for example, any Twitter conversation that mentioned Hillary Clinton, recognize a pro-Hillary Clinton message or a pro-Hillary Clinton hashtag or even just the name "Hillary" or the name "Clinton" and then deluge that mention with fake news stories, with crude remarks, with porn, with lots and lots of pro-Donald Trump commentary, just flood the zone with enough of that stuff and pretty soon, nobody can really have a conversation online about Hillary Clinton at all.

If you do that enough, if you get enough bots working that beat, you end up drowning out what would otherwise be normal communication, normal commentary, normal discussion or even normal political organizing. You end up drowning it out in misinformation and noise and insults and just the sheer amount of traffic. And when that noise bomb that comes back at you online is not just loud, it`s outrageous, it`s profane, it`s stuffed with unexpected bits of foreign, it`s relentless, the number of posts that appear back at you and how long they keep going for.

Well, in that circumstance you think twice about trying to raise that subject online ever again, right? It makes discussion of the things you care about online. If you are a Hillary Clinton supporter it makes discussion of Hillary Clinton online feel futile. It feels ugly and weird in terms of the response that you get so ultimately overtime, you tune out. You shut down.

And if you use Twitter even casually, and if you have an interest in politics, if you use Twitter during the election year, you undoubtedly had a little bit of that experience, or at least observed it, it was ubiquitous. Right after the election in November, researchers at Oxford University published a study of nearly 20 million tweets about the election that were sent over the last week of the presidential contest and those researchers determined after all the traffic on twitter about the U.S. election, bots produce nearly 20 percent of it.

During the debate, over a quarter of all election-related Twitter traffic came from these malicious bots and the bot traffic was almost entirely pro- Donald Trump. And some of that dynamic was visible at the time. But now, we are starting to be able to put it together in terms of how Russia used that particular weapon to basically eat American political discourse during our election or at least eat or render useless a big portion of it.

And now that the FBI has confirmed that the Trump campaign is the subject of a counterintelligence investigation concerning them possibly cooperating with Russia during Russia`s attack on our election, now we can put it together in terms of the timeline here, right? As we get closer to answering the question of whether or not Russia had help, whether they had confederates inside the Trump campaign when they launched this attack, the timeline is getting really clear now and really interesting in terms of finally getting this thing understood.

And you don`t have to go back very far. Just go back one year. As we reported last night, in February of last year, a senior aide to Russian President Vladimir Putin gave a presentation at a Moscow Information Security Forum and in this open source forum, he promised the Russian military and intelligence services had developed what they considered to be the equivalent, the strategic equivalent of a nuclear bomb, but for information warfare. This is a speech that was first reported by David Ignatius at the "Washington Post."

He got the speech translated from Russian. It`s Vladimir Putin`s cyber war senior adviser telling his audience in Moscow last February, quote, "You think we are living in 2016, no, we are living in 1948. Do you know why? Because in 1949, the Soviet Union had its first atomic bomb test, and if until that moment, the Americans were not taking us seriously in 1949, everything changed and they started talking to us on an equal footing. I`m warning you," he said, "We are on the verge of having something in the information arena that will allow us to talk to the Americans as equals."

So, the Kremlin bragging last year about how they had a new nuclear-level information warfare capability that they were about to deploy against the United States. Something that would bring America down, make America recognize Russia`s strength, make us see them as our equal. That was February of last year.

Then in March, we know from the intelligence community`s report on Russia`s attack, in March, Russian military intelligence indeed started their attack. Quote, "The GRU, which is Russian military intelligence, the GRU probably began cyber operations aimed at the U.S. election by March, 2016. We assess --" and this is the U.S. intelligence report on what Russia did. "We assessed that the GRU operations resulted in the compromise of the personal e-mail accounts of Democratic Party officials and political figures." By May, the GRU had exfiltrated large volumes of data from the DNC.

So, again, simple timeline here, right? February, the Kremlin says watch this, watch what we`re about to do here, this is going to be epic what we`re going to do to the United States. That`s in February, following month in March, their military intelligence directorate starts stealing all this propriety political information from the Democratic Party and ultimately by June and July, we know the Russians had shown their hand. That that was not just an intelligence operation, they were not just stealing information from the Democratic Party so they could get American secrets, so they could get secret American information and use it within their own government for their own purposes.

Now, by June and July, they showed what they wanted to do with that information was that they wanted to release it publicly in the United States. They wanted to weaponize it. Release it back into our country in a way designed to inflict maximum harm on Hillary Clinton and the Democratic Party. That`s what they did with D.C. Leaks and Guccifer 2.0 and the secret stuff they stole from the DNC and Clinton campaign chairman John Podesta.

But now we can also tell you that they were also playing another card at the same time, one that a lot of people watching the show experienced in real time and you may not have known what it was when it happened to you.

Jason Cherkis and Ryan Grim, two reporters of "Huffington Post," they have done some great work on this recently. And we`ve been able to add this to the timeline, in part because of stuff we`ve been able to figure out, but also because of what they reported. So, again, the timeline here, February, Kremlin threatening/promising they`re going nuclear in their information war, March, their GRU attacks the Democratic Party and steals their data. We see all the fruits of that by the summer.

But that spring, April and May, the other thing they started doing was a huge industrial-sized bot attack. This was not a joke. They used automated social media bots and what appeared to be paid operatives in Russia and other countries specifically to target Bernie supporters. They took the real split in the Democratic Party between Hillary Clinton and Bernie Sanders and they blew it up into what they hoped would be an unbreachable chasm.

One of the administrators at a Bernie Sanders Facebook page in San Diego described it like this to Grim and Cherkis at "The Huffington Post", quote, "people with no apparent ties to California were friending his San Fiego Facebook page and sharing links from unfamiliar sites full of anti-Hillary Clinton propaganda. The stories they posted were not the normal complaints. These stories allege that Hillary Clinton had murdered her political opponents and used body doubles.

When John Maddes (ph), the administrator on that Bernie site in San Diego, when John Maddes started tracking down the domain registration the trail led to places like Macedonia and Albania. And it wasn`t just San Diego. By mid-May, an administrator for a Facebook site for Bernie Sanders supporters in California, Bay Area for Bernie, was setting off her own alert about many if not all of the Bernie groups being inundated, quote, "with bogus users."

At Sane Progressive, they were posting the same warning. At Bernie Sanders is My Hero, the administrators there were posting their own version of the warning, basically saying something is happening here that is not native to our community. They were warning that these bogus postings were, quote, "developed to be appealing to Berners, to Bernie Sanders supporters, but they were not from an American or Bernie supporting point of view."

The real Bernie supporters in this country, the people who were, for example, running the Facebook pages in support of him by and large, they were trying to stop this when they realized what it was. We see the evidence of that now looking back at it, but even they seem to have realized that their sounding the alarm was futile. People just couldn`t hear it.

A few days before the election, John Maddes posted on his San Diego Bernie page, quote, "To all that get news from this page, be advised that groups from Macedonia have infiltrated this page and other Bernie pages, planting fake hate stories about Hillary."

Now, this has been previously reported, previously discussed around the campaign as if that foreign influx of sort of noise and vitriol was all commercial traffic. People in foreign countries who didn`t care about the U.S. election but they`re writing this fake stories basically to troll for clicks, to get gullible U.S. policy junkies, to click on those stories, just because they wanted the ad revenue they could get from clicking on their stories. The ad revenue they could get from traffic they could drive to their site, no matter what nonsense thing they posted.

And certainly, there`s a commercial element. That is definitely some of it. But we now understand much more about how Russian intelligence piggybacks on commercial hacking and commercial trolling efforts. It`s part of their M.O., it`s what Russian intelligence does, particularly Russian military intelligence.

We also know the Bernie administrators who went through this in real time, at least some of them, don`t believe that what they were going through, that what was washing over their Bernie supporter sites, they don`t necessarily believe that it was people trying to make money off Bernie supporters.

John Maddes telling us today, quote, "I strongly believe this was not just a commercial venture. Thirteen million Bernie supporters were out there to potentially support and vote for Hillary. Bernie voters were very engaged, contributed millions and brought in countless new supporters. If you could suppress those voters, you could provide yourself an advantage at low cost."

And now, McClatchy reports that the bot traffic that we see now, we saw in real time without understanding what it was, and we see now clearly what it was in retrospect, McClatchy is now reporting that the bot attacks, the bot traffic is part of the FBI`s counterintelligence investigation into the Russian attack on the election and the question of whether or not there was Trump campaign cooperation in mounting that attack.

Quoting for McClatchy, "Operatives for Russia appear to have strategically timed bots to blitz social media with links to pro-Trump stories at times when the billionaire businessman was on the defensive." Quote, "The bots` end products were largely millions of twitter and Facebook posts with links to stories on conservative Internet sites such as Breitbart news and Info Wars, as well as Kremlin-backed media outlets like RT and Sputnik News."

Federal investigators examining the bot attacks, according to McClatchy, they`re exploring whether the far-right news operations took any actions to assist Russia`s operatives. In other words, were they in on it?

Quote, "Investigators examining the bot attacks are exploring whether the far right news operations took any actions to assist Russia`s operatives. The investigation of the bot engineered traffic appears to be in its early stages but it`s being driven by the FBI`s counterintelligence division."

So, if McClatchy sources are correct, we now know that what appeared to be a mysterious tidal wave that turned social media into brainless anti- Clinton mush during the campaign, that was not only part of the Russian attack, it`s part of the Russian attack that is being investigated by the FBI`s counterintelligence division, including the possibility that there was kind of a cooperation or coordination in that part of the attack from pro-Trump forces inside the United States.

We will have more on that ahead tonight, including with one of the reporters that broke that story.

But I -- before we bring that reporter in, I want to leave this on one last point that I think is worth keeping in mind and when I describe this point you are going to think that I`m getting into obscure and into obscure and academic stuff, but you know what? At this point, I`m starting to feel like the obscure and academic stuff is sometimes where the real meat of this story is hiding in plain sight. Very little of this story has been broken by secret information. A lot of the story has been broken, a lot of the story has come into focus by just looking hard enough at what is out there in open sources.

OK, so one last point -- as the FBI and congressional investigations and journalists continue to authenticate and flesh out just how much Russia did, just exactly what Russia did to us last year and as we continue to get more information about contacts between Trump campaign people and the Russians during the time that the attack was under way, despite the fact that the Trump campaign denied it all these months. As those pieces are falling into place, it`s worth looking at the way the Russians talk about this themselves, because they are proud of their capability in this regard.

They really did have a Putin senior adviser last February threaten in public that the United States was about to be humbled and brought down to an equal footing with Russia by a new offensive capability and information warfare that the Russian military was about to unleash against us. They really did do that. They got out in public and pounded their chest about it.

Also, their equivalent of the chairman of the joint chiefs of staff wrote a public manifesto on Russian military might that is now becoming cult reading in national security circles and among journalists who are trying to figure out this story. He published it in 2013. He said Russia would henceforth use non-military tactics, chiefly information warfare tactics at a 4-1 ratio to its military tactics in its wars. When they went to war from here on out, they would wage four times as much information war as actual kinetic hot shooting war.

And in the Russian military`s preeminent journal which is called "Military Thought" in 2014, in a seminal article entitled "Information Operations on the Battlefield", in that article in 2014, Russian military bragged that if information warfare is going to work, it, quote, "must be conducted constantly, in peacetime, in the period of threats, and in wartime." If you`re going to use information warfare to confuse, demoralize, divide, distract, and ultimately defeat a rival country, according to the Russians` military doctrine on this subject, you don`t just do it in wartime, you have to do it all the time or it doesn`t work.

When "Huffington Post" did their dive into how Bernie supporters got targeted in this Russian attack, they focused in part on a Bernie Sanders Facebook page called "Bernie Sanders Lovers" which says it is based in Burlington, Vermont. It is not based in Burlington, Vermont. It`s based in Albania. and nobody who`s not from Albania appears to have anything to do with that Bernie Sanders site.

But the important thing here is that that Bernie Sanders lovers page run out of Albania, it`s still there. Still running. Still operating. Still churning this stuff out. Now.

This is not part of American politics. This is not, you know, partisan warfare between Republicans and Democrats. This is international warfare against our country and it did not end on election day. We are still in it.

There`s a reason why the investigation here, the counterintelligence investigation here, is something about which there is some urgency. We got more on the new aspect of it that we just learned about today, coming up next.

(COMMERCIAL BREAK)

MADDOW: I`m about to show you an arresting picture that might make you draw in breath if you haven`t seen it. You may have seen it online in the past couple days but if you haven`t, here goes. Scary looking green man.

This is actually a Russia story. This man is Alexei Navalny. He`s the highest profile opposition politician in Russia. He`s planning on running against Vladimir Putin for president of Russia next year. This is not a stunt by him. This is not an attention getting, you know, effort.

This weekend, he was campaigning in Siberia, somebody came up to him on the street and threw some sort of chemical all over him that literally dyed him that color, dyed him bright green. Alexei Navalny is making the most of it. He is not hiding, he`s continuing to do public events, make videos, continue with his campaigning, his supporters are saying they will dye themselves green, too, in solidarity with him.

But that attack on him, that is a reminder about how Putin`s Russia does business. It`s a reminder how scary it must be to be an opposition figure in Russia right now. And an even scarier reminder of that arrived late this afternoon when we got news that the lawyer for a legendary anti-Putin whistle-blower, the family lawyer for Sergei Magnitsky mysteriously took a header off the fourth floor of his apartment building today in Moscow.

Now, there are conflicting reports as to what happened here. He did survive. He`s said to have serious head injuries and is being treated in a hospital. We`ll let you know more as we learn more about it tonight. But I should tell you we`re expecting to speak with somebody close to him who can maybe shed more light on what appears to be another scary attack on an opposition figure in Russia. We`re expecting that interview tomorrow night on this show. I will keep you updated as to the progress of that.

Here in the United States, the connection between the Russian attack on our election last year and our own politics is also coming into sharper focus since the FBI announced yesterday that the there is an ongoing counterintelligence investigation into the president`s campaign and to possible coordination with the Russians as they attacked our country last year. Today, Donald Trump`s former campaign chairman, Paul Manafort, was mentioned by a member of the House Intelligence Committee as a potential witness who should perhaps expect too appear before that committee in its investigation.

The next thing we heard about Paul Manafort today after that was that Paul Manafort has now hired a crisis management public relations firm. That probably makes sense.

The other piece of puzzle that fell into place today was this news from McClatchy, news that the counterintelligence investigation that`s been looking into the Trump campaign since July of last year, according to McClatchy sources, that investigation also now includes investigation specifically into the Russian use of bots and trolls, to spread pro- Trump/anti-Clinton news online both of the real variety and of the made up variety.

Greg Gordon is a national correspondent for McClatchy News. He co-bylined that report today with Peter Stone of McClatchy.

Mr. Gordon, I`m happy to have you here with us on the show tonight. Thanks for being here.

GREG GORDON, INVESTIGATIVE REPORTER, MCCLATCHY NEWS: Thanks for having me, Rachel.

MADDOW: What got you going on this story? Were you following the investigation and heard about this piece of it, or were you following the bots and trolls part of it and heard it might be the subject of investigation.

GORDON: No, we`ve been working on the Trump and Russia thing for months like most media outlets in Washington. And one of our sources actually tipped my colleague Peter Stone who has done some great reporting for McClatchy as a freelancer and we dived into it. We were -- we were absolutely -- our minds were blown by the possibilities presented here. And maybe they won`t pan out but it was definitely worth delving into.

MADDOW: When you say your minds were blown by the possibilities here, do you mean that in terms of what the investigation might result in in terms of potential prosecutions or do you just mean in terms of the impact that these trolls and bots, that they had in terms of investigation warfare?

GORDON: I think it`s partly about the impact of the trolls and bots and it`s also about the possibility that some of these far right news sites might have actually in some way collaborated with Russia as it was endeavoring to unload this enormous cyber attack on the United States.

MADDOW: Now, that possibility, you`re careful in the way you`ve written up that possibility. Obviously, when you look at the overall FBI investigation as characterized by Director Comey, the huge bombshell there is the possibility he raise, which had he says they are investigating that the Trump campaign coordinated, cooperated somehow with this Russian attack on the election.

With this piece of it, it is also similarly the real bombshell here as you describe it, the idea that U.S.-based pro-Trump news outlets might have collaborated with the Russians in this part of the attack it doesn`t seem clear that they would have too collaborate in order for that part of the attack to work. They don`t have to be witting participants.

GORDON: That`s right.

MADDOW: The right wing news sites don`t have to be.

GORDON: That`s right. The interesting thing about bots is that bots are just a computer command and you can design a bot to do whatever you want them do. So, in this case, operatives from Russia, they weren`t necessarily all Russians, they might have been in Macedonia or Albania or wherever, were programming commands that would essentially fetch news stories that were favorable to Donald Trump or derogatory about Hillary Clinton, and scatter them all over the place.

And so, what you had was a kind of shot, a blind side shot to benefit one of the candidates from a foreign power.

MADDOW: Greg Gordon, national correspondent for McClatchy News, who along with Peter Stone broke this story that the FBI investigation includes this electronic aspect of the Russian attack and the possibility of some media organizations collaborating in it -- Mr. Gordon, I -- this is the first time you`ve been on the show. We`d love to have you back. I know you and your colleagues of McClatchy have done the most forward-leaning investigations here.

Thanks for helping us understand this report tonight.

GORDON: My pleasure.

MADDOW: All right. Coming up, one of the most intriguing things about today`s Supreme Court confirmation hearing had nothing whatsoever to do with the nominee himself but it`s very important and very controversial. And that`s straight ahead.

(COMMERCIAL BREAK)

MADDOW: This human traffic jam is made up of Republicans on Capitol Hill leaving their meeting today with the president. One at a time, guys, one at a time. One at a time.

Because they had to funnel past reporters, and they were all crammed in there next to each other, we did get this description from what happened inside.

(BEGIN VIDEO CLIP)

REP. CHRIS COLLINS (R), NEW YORK: The president talked about 2018 and the message was, if we don`t get this done, we`re going to lose the House and Senate next year. He was that blunt.

REPORTER: Did he threaten anyone or --

COLLINS: No, no, that`s not the president`s style. He`s reminding our conference of the campaign promise, the importance of it for next year`s midterm elections and is basically saying what we`ve all said -- we deliver on this, then we do tax reform, then we pick up 10 Senate seats next year.

(END VIDEO CLIP)

MADDOW: This president threaten someone? You kidding? This guy?

No, no, no, he never threatens anybody. He was just telling us we do this one thing, we do this repeal Obamacare care thing and then we conquer the world. We get 10 Senate seats, and we get tax reform, we get everything else we want, we just have to do this one thing.

Congressman Chris Collins sounds so sure of this and it`s true his Republican colleagues finally did manage to get through the door way this morning. They did squeeze out. But there`s real reason to question tonight, whether they can get passed what they are calling step one on their plan for universal domination. That story is ahead tonight.

Plus, I`ve got to tell you. We`ve got an exclusive look tonight, a first look at something the Democrats are unleashing tomorrow that they think will help them stop the Republicans` efforts to kill Obamacare. You haven`t seen this anywhere else. It is due to break tomorrow but we have it here tonight.

I think it`s pretty good, actually. You`ll have your first look at it in just a second. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Thursday is when the Republicans are going to hold their vote on repealing Obamacare. Ahead of that vote, the president went to Capitol Hill today to twist arms, to line up Republicans to vote for the repeal bill.

Congressman Mark Meadows is chairman of the Freedom Caucus. He says that he was a firm no when he walked into the meeting with the president today and he said he was still a firm no when he walked out of that meeting, despite the president reportedly threatening him in front of all the other Republicans in the room. It`s hard to say how many members of the Freedom Caucus are on Mark Meadows` side on this, but even if half the members vote against the bill, that`s it. That`s all it would take, the bill would be toast, game over.

NBC has been keeping a whip count of members of the Republican caucus who say they might vote no. So far, 27 Republicans in the house say they are against the bill or strongly leaning against it -- 27. That`s over and above the 22 no votes that would be enough to kill the bill.

And the pressure isn`t just from the far right guys. It`s coming from the center, too. Moderates have been getting an earful from their constituents at home, warning them not to take Obamacare away.

To that point, Democrats have cooked up basically a gut-punch of an ad that they plan to release tomorrow ahead of this week`s vote. We`ve got it exclusively tonight. This is the first add the Democratic Senatorial Campaign Committee put out in the 2018 election cycle, and we`ve got the first exclusive look at it right here tonight.

I think this is pretty good. Watch.

(BEGIN VIDEO CLIP)

(MUSIC)

ANNOUNCER: DSCC is responsible for the content of this advertising.

(END VIDEO CLIP)

MADDOW: Democratic Party will drop that ad, Democratic Senate Campaign Committee will drop that tomorrow, putting the pressure on.

In addition to that, former Vice President Joe Biden will be back in Washington tomorrow, trying to shore up Democratic resistance to the repeal bill. He`ll be headlining a rally tomorrow morning on the front steps of the Capitol.

Repealing Obamacare has been Republican priority number one for years. We are right now just a little bit over one day away from what`s supposed to be the big vote. It looks shaky, if you look at the NBC whip count. It looks shaky if you look at the political climate around this issue in the country. Already, there are rumblings on Capitol Hill that the House Republicans might push that Thursday vote because they know they don`t have the votes.

I have a feeling this is not at all how Republicans thought this would go.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIPS)

SEN. MARCO RUBIO (R), FLORIDA: Look, I`m not here to bad-mouth other Republicans. We have a good amount of people running. At a minimum, I can say this, none of them is a socialist.

(LAUGHTER)

None of our candidates is under FBI investigation.

JEB BUSH, FORMER PRESIDENTIAL CANDIDATE: All I`m saying is that she`s under investigation by the FBI. Just pause and think about that, that`s uncommon for a presidential candidate.

DONALD TRUMP, THEN-PRESIDENTIAL CANDIDATE: We need a government that can go to work on day one for the American people. That will be impossible with Hillary Clinton, the prime suspect, in a far-reaching criminal investigation.

SEAN HANNITY, FOX NEWS HOST: So think about the magnitude of all of this for a second. Hillary Clinton could be sworn into office while still being under investigation from the FBI this would then put this country into a major constitutional crisis.

TRUMP: What a mess. What a mess. And all she had to do is follow the rules and assume people are watching or listening. Who cares, right?

RUBIO: Can this country afford to have a president under investigation by the FBI? Think of the trauma that would do to this country.

TRUMP: We`ve never had a case like this. And even Congress, you know, is sort of -- they`ve never had this before because there`s no event like this that ever took place.

(END VIDEO CLIPS)

MADDOW: We have never had a case like this, Congress, they have never had this before, there`s no event like this that ever took place.

Correct, Mr. President. We have never had a sitting president`s campaign under investigation by the FBI for colluding with Russia to influence the election. That has never happened before.

It`s uncanny, though, right? That stuff from the campaign? Over and over, throughout the presidential campaign, Republicans insisting if a president was under investigation by the FBI that would -- what was the phrase? "Put this country into a major constitutional crisis." Over and over and over again they said that.

But, you know, Sean Spicer, quote, "probably tough to get excited about someone under FBI investigation." Sean Spicer now White House press secretary.

Or this one, quote, "most honest people I know are not under FBI investigation." Kellyanne Conway, now counselor to the president.

Now we know that the president`s campaign is under investigation by the FBI and it`s a counterintelligence investigation about them possibly colluding in a foreign country`s attack on the United States. Started in July, the investigation continues and now we don`t have to imagine what it would be like to have a president under FBI investigation, now we don`t have to wonder about what would be the right response to that, now we have to actually figure out in real time the right response to that because we need the right response to that now.

What do we do in this circumstance? Do we pick now to hold hearings to let that president fill a seat on the Supreme Court? Now? A question raised by the top Democrat in the Senate, Chuck Schumer today.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: You can bet if the shoe were on the other foot and a Democratic president was under investigation by the FBI, the Republicans would be howling at the moon about filling a Supreme Court seat in such circumstances.

(END VIDEO CLIP)

MADDOW: Senator Schumer went on to say it`s unseemly to be moving forward so fast on the confirmation, quote, "while this big gray cloud of an FBI investigation hangs over the presidency."

But regardless, today was day two of Neil Gorsuch`s confirmation hearings. And the Democrats went, and there`s plenty to say about the balls and strikes of that hearing and how the hearings have been going and all the questions he successfully avoided. But to a certain extent, those things seem like the trees when the forest here is this president is under FBI investigation in a counterintelligence probe. Until that`s sorted out, should we really be going full steam ahead with putting somebody on the Supreme Court for life?

Last year, President Obama nominated Merrick Garland to that open seat on the Supreme Court. And the Republicans would not meet with not only wouldn`t hold a hearing -- they wouldn`t meet with him. They wouldn`t speak of even considering his nomination.

And the Republican objection to Merrick Garland as Supreme Court nominee was, their objection, the -- their whole problem with him was that Barack Obama was only going to be president for only a little bit more than a year. So, he`s only got a year left. That`s our objection. So, they`re not going to consider his pick.

Right now, the Democratic objection to having hearings on Neil Gorsuch is that the president is under an FBI counterintelligence investigation for potentially colluding with a foreign power to attack the United States. Which of those is a more substantive reason to hit pause and maybe not move forward on giving that particular president the next permanent appointment to the United States Supreme Court? Which of those objections makes more material sense?

Joining us now is Dahlia Lithwick, senior editor and legal correspondent for "Slate" and someone who talks me down when my soap box gets too tall.

Are you not going to?

DAHLIA LITHWICK, SLATE SENIOR EDITOR & LEGAL CORRESPONDENT: I wrote this column a month ago. I co-wrote with (INAUDIBLE) who teaches at Georgia. We said, you know, it`s weird, the illegitimacy of the president throws the entire constitutional question of advice and consent into doubt.

And then kind of weird with the president who`s actually being investigated, same illegitimacy problem. And the haters all said, why are you trolling the Republicans on the Senate Judiciary Committee? I said, well, I`m not rolling them. I`m actually just quoting them.

MADDOW: Right.

LITHWICK: But I actually have no problem with what you`re saying. And I would add this one gloss, Rachel, I think it`s not inconsequential. The court`s institutional integrity completely rests on public confidence in the court. It`s not like other positions.

The court, if it is under a cloud, under a shadow of some sort, there`s nothing the court can do to get that back. So, this is a different institution from other institutions of government, insofar of all the questions about the legitimacy, the stolen seat now being filled by a stolen presidency. The rest of the republic can recover from this.

You know what doesn`t recover? The court. The court really does institutionally suffer when public judgment about the court`s legitimacy is in doubt. It different from other institutions and that really ups the stakes here in a way that it`s beyond just sort of fatuous quoting Ted Cruz. It really hurts the court.

MADDOW: Once the Republicans did what they did about Merrick Garland and they held that seat open, as you say, sort of stealing that seat, not allowing President Obama to make his nomination to that seat. What could have been an appropriate corrective that? I mean, is that just, is that breaking glass and it all shards, or is there a way to reestablish sort of constitutional normalcy around the court after they did that?

LITHWICK: I don`t think so. I mean, I have to tell you, I feel different about the court. I`m the wickedest Patty Hearst, I mean, I love my captors. You know, thank you for having no TV in here.

So, for me, something was broken. And I think sort of layered over the sense that this seat was not theirs to take away, it`s just the complete hypocrisy of now insisting they can`t function with eight people, we`ve got to get this done now.

And moreover, this is an institution that really rests on integrity and dignity and civility. You know, you`re hearing Senate Republicans talking about the need to return to norms now. Norms? Remember them? That was what you broke.

MADDOW: And, in fact, they said if -- they threatened if Hillary Clinton was elected, they would hold that seat open until after the 2020 election, that they would not allow anybody other than a Republican president to fill that seat.

LITHWICK: I think it really important to be clear that what you`re hearing now is Republicans saying this was Scalia`s seat, no one was going to get to fill but a Republican, because there`s no such thing as a real judge coming from the other side. And Ted Cruz has been really clear about that in the hearings in the last two days. The masks are off, and in some ways, that`s good. But again, you know who is hampered when the masks are off, it`s the court.

MADDOW: In terms of Gorsuch himself, how`s he doing?

LITHWICK: Well, you know, I think it`s -- he`s turning to the point of like, golly, gosh, gosh, we stopped at "Slate" today counting gollies and goshes because there`s all gollies and goshes.

MADDOW: To the point where it seems fake and put on?

LITHWICK: Well, to the point where nobody says gosh that much ever in a lifetime.

I think he is very genuinely charming. He`s very warm. You know, he`s answering nothing. And even Justice Alito, even Justice Kagan answered a little bit. He`s giving us almost no guidance on anything of substance.

It frustrating when you have a president who explicitly says, I`m going to tap a guy who`s going to make you super happy about guns and abortion, so that litmus test, you know, the burden is on Gorsuch at some level to disprove the promise that was made.

MADDOW: Right. I mean, Trump made news when he said there`s going to be litmus tests for me. These are the things that I`m going to get agreements on from anybody I put in position. And so, for the president to be saying that and the nominee for not saying whether that`s true or denying that`s true.

LITHWICK: It`s very froth.

MADDOW: Do you think the Democrats should get up and get out of that hearing and just let his appear to be a Republican project and stop lending their legitimacy to it?

LITHWICK: I have to say they`re landing some punches on some of the ideas that they want to get across, that the Republicans are the party of corruption and dark money, they`re the party of not caring about the little guy. So, some of these little flicks are getting there.

But I think on this larger question of should we be here, is there legitimate, should we be in this conversation, why are you telling us that when you go low, we give you the seat and maybe we`ll do it again in two years? They`re not there.

MADDOW: Yes.

LITHWICK: They`re not there, Rachel.

MADDOW: And I would say Democrats on the Judiciary Committee, if they polled Democratic voters right now, if they polled their supporters right now, if they polled base voters in the Democratic Party as to what they should do, it would be a very large vote telling them to get up and get their butts out of that room.

Dahlia Lithwick, senior editor and legal correspondent for "Slate", a person I count on to keep me sane in insane times failing miserably.

LITHWICK: Thank you.

MADDOW: Thank you, Dahlia. It`s great to have you here.

All right. We`ll be right back. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Behold, behold, he speaks. Andrea got him to speak finally! Watch.

(BEGIN VIDEO CLIP)

ANDREA MITCHELL, NBC NEWS: Mr. Secretary, North Korea is now threatening preemptive action. Can you say whether you think that`s a dangerous escalation, sir?

REX TILLERSON, SECRETARY OF STATE: No comment today, thanks.

MITCHELL: Any comment on the NATO meetings?

TILLERSON: See you tomorrow.

MITCHELL: Thank you.

(END VIDEO CLIP)

MADDOW: He did speak. That`s progress. It was to be specific, "No comment today, thanks. See you tomorrow." Seven words. Got to start somewhere.

We have been documenting on this show the steady disappearance of the U.S. State Department in this administration. It has shrunk. It has gone silent in the Trump era.

As apart of that, we have documented the steadfast efforts of the intrepid Andrea Mitchell to try to get a question off a question to the secretary of state, at his many, many silent photo ops, only to get more stone cold handshaking silence before she get pushed out of the room.

Today, there was progress. She got seven words from the U.S. secretary of state. Ask, ask, ask, and you shall finally receive. Seven words. It`s a start.

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

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".

Good evening, Lawrence.

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

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