The Rachel Maddow Show, Transcript 6/7/17 NSA denies Senate

Guests: Ron Wyden, Nancy Gertner

Show: THE RACHEL MADDOW SHOW Date: June 7, 2017 Guest: Ron Wyden, Nancy Gertner

JESS MCINTOSH: -- need to hang their career on something that unpopular because Donald Trump is making it that unpopular. They can let him loose. They cut him loose. They don`t need him.

SUSAN FERRECHIO: One thing that Republicans could run away from is the ad campaign that the RNC has out tomorrow basically --

CHRIS HAYES, "ALL IN" HOST: Bashing Comey.

FERRECHIO: Bashing Comey. That has political repercussions.

HAYES: All right. Susan Ferrechio and Jess McIntosh, thanks for making time.

That is "ALL IN" for this evening.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

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

HAYES: You bet.

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

Anything going on in the news? This is one of those times.

After a presidential election, we the taxpayers pay for the person who has just won that election to set up offices in Washington, D.C. Taxpayer- funded offices to run their transition out of, to get their transition efforts up and running because we have a national interest, we taxpayers have an interest in there being a smooth transition from one outgoing administration to the new incoming one.

I remember going to a briefing at the Obama transition offices in either late 2008 or early 2009 before President Obama was inaugurated for the first time. I remember going to that. It was, you know, just like generic office space. I remember thinking it was kind of funny to see all these regular-looking office folks who I didn`t recognize scurrying around doing office things. And mixed in among them in shirtsleeves were like, you know, look, it`s David Axelrod and, hey, there`s the president-elect, hey, look it`s Joe Biden. He`s about to be vice president.

It was these very low-key offices, very busy, and right in downtown D.C., all taxpayer-funded. That is a standard thing now. Every president-elect gets taxpayer-funded transition offices.

And after this last presidential election, it was no exception. Taxpayers paid for the Trump folks to have low-key, big, centrally located transition office space in Washington, D.C., just like every other modern president has had.

What was different this year with this president-elect is that this president-elect did not use those offices. We paid for him anyway, but they didn`t really use them. They used Trump tower instead. Why not?

I mean, yes, there were some Trump folks who worked out of the taxpayer- funded transition offices in D.C. during the transition in November and December and into January before the inauguration, there were some people there. But the candidate himself was not there and none of his top people were there. None of the decisions about the transition and the new administration were really being made at those taxpayer-funded offices.

And there were these insidery headlines at the time. Trump marginalizes D.C. transition staff. You know, those few poor suckers who were actually in D.C. thinking they were running the transition, ha, all the real work was happening at the president`s apartment at Trump Tower in New York. We should have seen those headlines as advance warning that we should throw out the window any of our normal ideas about how a new presidential administration gets set up.

But the -- that interesting sort of novel thing about the way the Trump folks handled the transition the abandonment of their D.C. offices, that also had a really specific logistical consequence after the election, and for setting up the new administration. It meant that anybody who wanted to meet with the incoming president and his top advisors, anyone who wanted to say, lobby for themselves getting a top job in the new administration, unlike previous presidential transitions, this time with the Trump folks, you couldn`t sort of do it in a low-key way, you couldn`t just slip off to some low-key generic office space in Washington D.C. and meet with the transition folks or even the candidate himself there. To do this with the Trump folks, you had to come to Fifth Avenue in New York City, and you had to find their way in to Trump Tower.

And for some people, I`m sure that was an added bonus. You know people who were very happy to be seen making their Trump Tower pilgrimage, who made sure to engage the reporters and everything, who are camped outside the gold elevators.

But not everybody wants to be seen doing those sorts of things. Some of these other meetings are lower key. And for some of those other people who might have preferred their -- you know, pilgrimages to see the new president-elect, their trip out of D.C. and up to New York City and into that very public building, that ended up being an awkward thing, particularly when I hit the newspapers.

Presidential election this past year, November 8th, that, of course, is a Tuesday. We have our elections on Tuesdays. The following week, on Thursday the week after the election, so nine days after the election, it was actually a serving Obama administration official who turned up unexpectedly at Trump Tower.

It was Admiral Mike Rogers, the head of the National Security Agency. He was apparently spotted at Trump Tower less than a week and a half after the election and what was very strange about that is that Mike Rogers, head of the NSA, he took personal leave from work, he took a personal day to go do this, to leave Washington D.C., where he worked running the NSA, to travel to New York presumably on his own dime to go visit a mutt candidate the president-elect at Trump Tower.

Now, incidentally, Mike Rogers as an admiral in the Navy and head of the NSA, he`s in the military chain of command, and he answers to the commander in chief who at that point was Barack Obama. But, apparently, Mike Rogers did not even tell President Obama or the Obama administration generally that he was doing this, that he was taking a personal day to leave D.C. go to New York to visit the president-elect.

It was "The Wall Street Journal" that was first to report on NSA head Mike Rogers playing hooky that day. They were also first to report on why he might have done it, the prospect that the president-elect might be about to give Mike Rogers a big promotion, the prospect that Mike Rogers might get promoted from not just being head of the NSA and head of the Cyber Command, the prospect that he might be the new director of national intelligence.

Within days, we got news of just how remarkable a promotion that would be for Admiral Mike Rogers, not just because it would be a big promotion but because top defense and intelligence officials that he had served under in the Obama administration all apparently at the time wanted him to be fired, not promoted.

It was one of the stranger things about the Obama administration that we learned about during the transition, this widely reported drama about whether or not the head of the NSA was going to get fired during the transition, whether the head of the NSA was going to get canned after the election but before the new president was sworn in, and that would be dramatic and strange enough even if at the same time, that NSA director was not apparently taking off his uniform, or disregarding his uniform, and taking a personal day to go secretly meet with the incoming president at his penthouse apartment in New York to talk about maybe becoming the top intelligence official in the whole government.

It was very strange. It was just this very strange story about this important part of the intelligence community at an otherwise pretty dramatic time. NSA Director Admiral Mike Rogers had apparently been recommended for firing by Obama`s Defense Secretary Ash Carter and by the Director of National Intelligence James Clapper, they reportedly thought he had done a bad job at the NSA and at Cyber Command. NBC News reported at the time that Admiral Rogers was, quote, extremely unpopular among the NSA workforce at the time.

Would he be fired? Would Trump promote him even though Obama was maybe about to fire him? The interesting question.

In the end, when all was said and done, what happened is that Mike Rogers kept the NSA job into the new Trump administration. He did not get fired from running the NSA, but he also didn`t get promoted to be the Director of National Intelligence either. That job went to Dan Coates, former Republican senator from the state of Indiana.

And now, today, on the eve of the first public appearance by the FBI director since that FBI director was fired by President Trump, today, these two figures, the controversial admiral who snuck out from his job without permission from the Obama administration which wanted to fire him at the time and the former senator job who got -- the former senator who got the top intelligence job despite Admiral Rogers going to those extraordinary lengths apparently to lobby for it secretly during the transition, these two unusual figures today opened a whole new unexpected sight in the investigation into the Russian attack on our election last year, and the question of whether the Trump campaign colluded in it.

(BEGIN VIDEO CLIP)

SEN. ANGUS KING (I-ME), INTELLIGENCE COMMITTEE: Then, I`ll ask both of you the same question, why are you not answering these questions? Is there an invocation by the president United States of executive privilege? Is there or not?

ADM. MIKE ROGERS, NSA DIRECTOR: Not that I`m aware of.

KING: Then why are you not answering our questions?

ROGERS: Because I feel it is inappropriate, Senator.

KING: What you feel isn`t relevant, Admiral. What`s -- what you feel isn`t the answer. The answer is -- why are you not answering the questions, is it an invocation of executive privilege? If there is, then let`s know about it. If there isn`t, answer the questions.

ROGERS: I stand by the comment I`ve made. I`m not interested in repeating myself, sir. And I don`t mean that in a -- in a -- in a contentious way.

KING: Well, I do mean it in a contentious way.

ROGERS: Yes, sir.

KING: I don`t understand why you`re not answering our questions. You can`t --when you were -- when you were confirmed before the Armed Services Committee, you took an oath. Do you solemnly swear to give the committee the truth, the full truth and nothing but the truth, so help you God?

ROGERS: I do.

KING: You answered yes to that.

ROGERS: And I`ve also answered that those conversations were classified and it is not appropriate in an open forum to discuss those classified conversations.

KING: What is classified about a conversation involving whether or not you should intervene in the FBI investigation?

ROGERS: Sir, I stand by my previous comments.

KING: Mr. Coats, same series of questions. What`s the basis for your refusal to answer these questions today?

DAN COATS, DIRECTOR OF NATIONAL INTELLIGENCE: The basis is that what I`ve previously explained, I do not believe it is appropriate for me to --

KING: What`s the basis? I`m not satisfied with I do not believe it is appropriate or I do not feel I should answer. I want to -- I want to understand a legal basis. You swore that oath to tell us the truth, the whole truth and nothing but the truth, and today you are refusing to do so.

What is the legal basis for your refusal to testify to this committee?

COATS: I`m not sure I have a legal basis.

(END VIDEO CLIP)

MADDOW: I`m not sure I have a legal basis.

Today, the Director of National Intelligence Dan Coats, and the head of the National Security Agency, Mike Rogers, said they would not tell the United States Senate which is investigating this Trump-Russia affair and the committee that oversees them in the Senate, the Intelligence Committee oversees the intelligence community. The intelligence agencies have to answer to that oversight committee.

Nevertheless, as the head of the NSA and the Director of National Intelligence today, they said they would not tell their oversight committee about their conversations with the president and whether the president ever asked either of them if they would or could do anything to change the course of the Trump-Russia investigation or try to change public perceptions of that investigation. They would not answer.

Both men have been described in multiple press reports as having been asked about or pressured on that issue by the president himself. But whatever he expected them to say about it, I don`t think anybody expected what they did today, and senators of both parties today clearly were flabbergasted that both the head of the NSA and the Director of National Intelligence not to mention the deputy attorney general and the acting FBI director just flat- out refused to answer any questions.

(BEGIN VIDEO CLIP)

SEN. MARCO RUBIO (R-FL), INTELLIGENCE COMMITTEE: Director Coats, I`ll just say and with incredible respect that I have for you, I am not asking for classified information. I`m asking whether or not you have ever been asked by anyone to influence an ongoing investigation.

COATS: I understand but I`m just not going to go down that road.

SEN. MARTIN HEINRICH (D-NM), INTELLIGENCE COMMITTEE: So, you`re not invoking executive privilege and obviously it`s not classified. This is the oversight committee, why would it not be appropriate for you to share that conversation with us?

Director Coats, you`ve said as well that it would be inappropriate to answer a simple question about whether the president asks for your assistance in blunting the Russia investigation. I don`t care how you felt, I`m not asking whether you felt pressured. I`m simply asking, did that conversation occur?

COATS: And once again, Senator, I will say that I do believe it`s inappropriate for me to discuss that in an open session.

HEINRICH: You realize and, obviously, this is not releasing any classified information, but you realize how simple it would simply be to say no that never happened? Why is it inappropriate, Director Coats? You clear up an awful lot of by simply saying that never happen.

COATS: I don`t share -- I do not share with the general public conversations that I have with the president or many of my administrative colleagues within the administration that I believe are -- should not be shared.

HEINRICH: Well, I think your unwillingness to answer a very basic question speaks volumes.

KING: It is my belief that you are inappropriately refusing to answer these questions today.

ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: Our default position is that when there`s a Justice Department investigation, we do not discuss it publicly. That`s our default rule so nobody needs to --

SEN. MARK WARNER (D-VA), INTELLIGENCE COMMITTEE: Is that a rule for the president United States as well?

ROSENSTEIN: I don`t -- I don`t know what --

WARNER: Because that is what the questions are being asked about, reports that none of any nobody has laid the rest here that the present United States has intervened directly in an ongoing FBI investigation, and we`ve gotten no answer for many of you.

(END VIDEO CLIP)

MADDOW: I don`t know that anybody had a clear expectation about what they would get from an acting director the FBI, from the deputy attorney general, from the head of the NSA, from the Director of National Intelligence today, all of whom are somehow connected to these multiply sourced reports that the president has tried to put his thumb on the scale in effect when it comes to the Trump-Russia investigation, that he`s tried to either shut that investigation down, get intelligence folks and law enforcement folks to make public pronouncements about those investigations to somehow try to exonerate him it`s change the public narrative about it,

I don`t know anybody -- I don`t know that anybody knew exactly how they would all answer as to their reported roles and what the president has done on that investigation, but I don`t think anybody expected that I would all just say, no, I don`t really feel like answering your questions.

So, welcome to the next stage of the investigation into the Trump Russia affair, the part where apparently the administration gets its act together to the extent that administration officials will now just stop answering questions about it from Congress, whether or not those officials can explain the basis on which they are refusing to answer.

I know there`s a lot going on, but this is new. This is being overshadowed today by the anticipation surrounding FBI Director James Comey`s testimony tomorrow morning.

But what happened today, this no-I-won`t-answer and no-I-don`t-have-a- reason-why, this is a really big turning point in the overall question of whether we as citizens are going to get to the bottom of what happened here. I mean, if administration officials just start saying, no, I`m not going to answer, no, Congress has no authority to learn this stuff, no, the American people just don`t get an answer to these questions, not because they have any legal reason not to say but because I`m just not going to say -- that`s new one for this administration that`s new for this investigation thus far it`s a big deal it`s the first sign of how the Trump administration is going to fight this now that the president has his new external legal counsel apparently coordinating this fight.

But if the answer is: no, you don`t get answers because we don`t feel like answering your questions, I`m not sure Congress knows yet how it`s going to fight back against that new strategy?

I don`t even know if Congress is going to fight back against it, but that question is newly, newly important.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: What I`m going to do here is kind of a cheat sheet. It`s not like cliff notes really, like it`s not like a summary of everything that happened, but it`s just like, little cheat sheet, a little back of the envelope notations that may be helpful over the next hours.

OK, tomorrow morning, 10:00 a.m. Eastern Time, we`re going to hear from the fired FBI Director James Comey. Today, he apparently are with the United States Senate to release his opening statement for tomorrow morning a day early, and I know you`ve heard about this statement today already, hopefully, you`ve had a chance to read it. It`s not that long, six or seven pages.

But whether or not you`ve had a chance to read it, I think here`s just a few things to focus on, a few little back-of-the-envelope things to keep in mind as top lines in terms of what the FBI director is letting us know and what we`re going to expect to learn a lot more about tomorrow.

If Director Comey`s statement as released today is true and accurate and I want to presume that it is, but if it is, we learned a few things from it today that were some big things in some small things.

Here`s one, first, at what Director Comey says was their first in-person meeting on January 6th, first meeting between Trump and Comey, the way Comey describes it, he says, a number of intelligence officials were all in the same room together briefing Trump on the Russian attack on the election last year. But Comey says that it was him personally, it was James Comey personally, who met one-on-one with Trump. They kicked everybody else out of the room it was just Comey and Trump alone talking about the personally sensitive and quote salacious allegations made against Donald Trump presumably from the Christopher Steele dossier of unverified, supposed Russian dirt against Donald Trump.

So, there were lots of intelligence officials briefing the president in general on the Russian attack, but Comey says when it came to that part of it, Comey says, the intelligence director at the time, James Clapper, said that James Comey personally should do that part of the briefing one-on-one with Donald Trump, instead of in front of everyone else, in part to spare Mr. Trump any embarrassment that those allegations might cause. We`ve never heard that before today. We learned that today from James Comey statement.

Another thing that we learned today, Comey says that although he and Trump had already multiple times discussed Comey staying on as FBI director, Comey says now that at a one-on-one dinner that happened just a few days after the inauguration, a one-on-one dinner in the Green Room at the White House, Trump raised the issue of Comey holding the FBI director job again as if they had never discussed it before. And the way that Comey describes it, he says basically that Trump raised the question of him holding that the FBI director job in a way that seemed like he maybe wanted to use it as leverage against Director Comey.

Here`s how he described it. Quote: The president began by asking me whether I wanted to stay on as FBI director, which I found strange because he`d already told me twice in earlier conversations that he hoped I would stay and I had assured him that I intended to. He said that lots of people wanted my job and given the abuse I`d taken during the previous year, he`d understand if I wanted to walk away. My instincts told me that the one-on- one setting and the pretense that this was our first discussion about my position meant that dinner was at least in part an effort to have me ask for my job, to create some sort of patronage relationship that concerned me greatly given the FBI`s traditionally independent status in the executive branch.

Quote: Near the end of our dinner, the president returned to the subject of my job, saying he was very glad I wanted to stay. He then said, quote, I need loyalty.

So, James Comey says in that one-on-one dinner with the president at the White House, the president in essence set him up to beg for his job, to ask for his job in a way that would make Comey seem beholden to the president. The president then followed that up by saying, I need loyalty.

Now, this is important not just because you know people down the road are going to need help writing the script for how this goes in the movie, if there is still some movie industry then, right? But this is important not just for the drama, it`s important because of intent, because of mindset in case there`s any criminal implication here.

That issue about do you want your job and are you loyal to me, if those things are connected, that goes right to the question of whether the FBI director may have been inappropriately fired by the president for refusing to do the president`s bidding, for refusing to be loyal in the president`s eyes, because the president apparently did expect that from his FBI director. And that brings us to the last two big revelations from the Comey statement today.

We have heard this one from unnamed sources before. We`ve never heard it on the record from the director of the FBI before, but Director Comey says in his statement what`s going to be his opening statement tomorrow morning, he says the president bluntly told him, urged him, sort of pleaded with him to drop the FBI investigation into Mike Flynn. This was on February 14th. There had been a briefing environment involving a lot of people in the Oval Office.

James Comey says the president told everybody else to leave the Oval so he and Jim Comey could speak alone. And then this is what James Comey says happened, quote: When the door by the grandfather clock closed, grandfather clock in the Oval Office, when the door by the grandfather clock closed and we were alone, the president began by saying, I want to talk about like Mike Flynn. Quote, He is a good guy and has been through a lot.

He then said: I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy I hope you can let this go.

Comey then says: I replied only that he is a good guy. I did not say I would, quote, let this go.

And if the president did ask the director of the FBI to let an ongoing FBI investigation go for whatever reason and again, we`ve had these allegations from unnamed sources and people close to Comey before that`s supposedly what he described in these memos that he has supposedly written but we`ve never seen, it`s all been reported out. But this is Comey saying it now, and if what he`s saying is true, if we`ve got the president saying, stop that FBI investigation, for whatever reason, then we are already in uncharted territory in terms of presidential behavior.

I mean, I realize everybody is talking about Nixon too much, but honestly, Nixon, got nailed for talking about asking the CIA to pressure the FBI about an investigation. I mean, get rid of all the middlemen and talking about it. If the president just personally pressured the FBI to drop an investigation, personally told the FBI director: drop it, no matter what the reason was, no matter what the investigation was, we are in uncharted waters. We have never seen anything like this in terms of presidential behavior in the history of the republic.

And, finally, last point, Comey says in his opening remarks which we`ll hear from him tomorrow, says that the president pressured him in a phone call on March 30th and in a follow-up phone call a week and a half later, that Comey should, in the president`s words, lift the cloud that was hanging over the presidency. Lift the cloud by publicly declaring that the president himself was not a personal target of the FBI`s counterintelligence investigation into Russian meddling in the investigation -- sorry, in the election and whether or not the Trump campaign colluded with it.

Lift the cloud -- make a public pronouncement that I`m not under investigation. Director Comey says in the statement that at least at the time of those discussions, President Trump wasn`t an individual personal target of the FBI`s counterintelligence investigation.

But the president wanted a public statement to that effect. He demanded it. He pressed for it repeatedly. When he didn`t get it, he went back to Comey and said, how come I didn`t get that?

And then, of course, Comey was fired by the president.

We will hear it all from Comey himself tomorrow morning, but if what he says is true, the president has at least lied about several of these matters in public multiple times. The president said bluntly, no, no, no. That`s a quote: no, no, no. It`s easy to remember. The president said, no, no, no when asked if he ever urged Director Comey to shut down the Flynn investigation.

The president also said bluntly, no, no, I didn`t, when he was asked just last month if he ever asked James Comey for his loyalty.

So, the president is saying no on those things, James Comey is saying yes. Either the president is lying about those things publicly, or James Comey is about to lie about those things under oath tomorrow morning. That itself is really important. Beyond that though, there is the question of whether the behavior that James Comey is describing here by the president is illegal.

Not an easy question to answer and the reason it`s not an easy question to answer is fascinating, and that`s ahead.

(COMMERCIAL BREAK)

MADDOW: Last night, right before we got on the air, "The Washington Post" broke this story. "The Post" citing multiple sources saying that Intelligence Director Dan Coats was not only asked by the president if he could intervene with the FBI Director James Comey to try to get Comey to stop the FBI investigation into Mike Flynn, not only did Trump ask that of Dan Coats, but Dan Coats told people at the time that the president made that ask of him that the president had made that asked of him.

Now, that`s important because it`s not just a damning allegation about the president`s behavior, it`s also an indication about how that might be corroborated. It`s one thing to have Dan Coats and the president have different stories about what they discussed. It`s another thing if at the time, Dan Coats told other people about the content of that conversation. That`s the way witnesses get backed up like in court and stuff.

So, that was last night`s news in "The Washington Post". Today, it was news in the United States Senate.

(VIDEO CLIP PLAYS)

UNIDENTIFIED MALE: Major capitals in Europe and discussing is the way --

RON WYDEN (D-OR), INTELLIGENCE COMMITTEE: You testify to the Armed Services Committee that you are not aware of the president or White House personnel contacting anyone in the intelligence community with a request to drop the investigation into General Flynn. Yesterday, "The Washington Post" reported that you had been asked by the president to intervene with Director Comey to back off of the FBI`s focus on General Flynn. Which one of those is accurate?

COATS: Senator, I will say once again I`m not going to get into any discussion on that open area.

WYDEN: Both of them can`t be accurate, Mr. Director.

(END VIDEO CLIP)

MADDOW: Democratic Senator Ron Wyden of Oregon doing his level best today to try to get an answer from Director of National Intelligence Dan Coats.

There`s a lot of that today. These four serving administration officials from the Justice Department and the intelligence community saying they could not or would not answer. They just didn`t feel it was appropriate to answer. a lot of the senators questions. Tomorrow, that same committee will start it again right and early. This time, their star witness will be former FBI Director James Comey.

We something about what James coming will testify to because his opening statement has been released. There is now a seems to me a new question as to whether or not administration officials who continue to serve in the administration will just refuse to answer congressional questions, whether or not they`ve got a legal basis to refuse.

Joining us now is Senator Ron Wyden, member of the Senate Intelligence Committee, one of the questioners during today`s hearing.

Senator Wyden, thanks very much for your time tonight. I know this is a very busy time.

WYDEN: Thank you for having me, Rachel.

And I think it`s been a very important point. Those officials this morning made a mockery out of the oversight process. We have a legal obligation to do vigorous oversight. And what they basically said is, so what?

And I can tell you, we are just not going to sit back and say this is acceptable. And you ran the clip about my question to Director Coats. One of those answers is false, and I`m going to get to the bottom of it.

MADDOW: So, that was -- the important thing I think in that question that you raised there is that this is not just competing news reports or different people shading the same story differently depending on their audience, what you asked the DNI today was about his previous testimony. He testified to the Senate Armed Services Committee. So, again, testifying to another oversight committee in the Senate, saying that he wasn`t aware about any White House personnel contacting anybody in the intelligence community to try to drop that Flynn investigation. "The Washington Post" report does directly contradict that today, and yet, he wouldn`t answer either way.

The thing I didn`t understand today, maybe -- maybe you did, was he saying that he would answer those questions, he would clear that up in a classified session, in a closed session, he just wouldn`t do it in the opening hearing?

WYDEN: No. I don`t think there was a commitment to clear it up. And that`s the problem.

I think that our job is to get to the bottom of these contradictory accounts particularly when they go right to the heart of the central question. And that is, was the president putting a lot of effort into trying to restrict this investigation? And I think the evidence is just piling up that he was.

MADDOW: We`ve seen Director Comey`s opening statement released ahead of time today, so that we`ve all had a chance to review it before he makes those remarks and faces questions tomorrow. If what Director Comey says in his opening statement is true, if the president directly urged him to drop the investigation into Mike Flynn, so that`s not even, that`s not --

WYDEN: Rachel, that is Watergate level material. That particular point you`re making about Mike Flynn is just that serious.

MADDOW: In terms of, if the president did that directly, is it just violating a norm of how things are generally done. Would it be illegal for the president to do that?

WYDEN: Rachel, I`m sure the lawyers are going to dig into this, into the obstruction of justice question in particular. I`ve come to feel -- if it looks like a duck and it quacks like a duck, it just may be a duck.

So, we`re just going to stay at it and that`s why tomorrow is so important.

MADDOW: What do you think is going to happen next in terms of your committee`s investigation here? We heard after -- for example, after NSA Director Mike Rogers would not answer questions today about whether or not he was pressured by the president to try to influence the FBI investigation. We heard the ranking Democrat on the committee, Senator Warner, talk about bringing in some other officials, other people who might be able to corroborate that story.

Does that mean we should expect further open hearings, new witnesses we haven`t heard from yet?

WYDEN: Open hearings, subpoenas and ability to declassify material is right at the heart of it. What tomorrow I believe is going to be about, is fleshing out some of the important statements that Mr. Comey has now made in his written testimony. I mean, when he talks about his position almost being treated like patronage, that`s not what public service is about.

Your obligation is to the law, is to the Constitution. It`s not a patronage job the way he thinks the president was treating it.

MADDOW: If that patronage claim is born out, if it`s supported by the evidence, if you`re able to substantiate what the director says and the Senate broadly believes him, if -- would that be potentially construed as grounds for impeachment against the president, that point alone?

WYDEN: What I can tell you with respect to that, and, of course, it originates in the House, I believe every member of Congress who takes an oath has an obligation to put the Constitution first. That`s what I`m going to do and that`s going to be the foundation of my work going forward as we try to squeeze the truth out of a very, very reluctant administration.

Apparently, the president seems to think he`s been vindicated by all of this. I think that`s just ridiculous. He -- there hasn`t been anything that has contradicted what Mr. Comey has said in his testimony.

MADDOW: Senator Ron Wyden, Democrat, member of the Senate Intelligence Committee -- big day today. Big day tomorrow. Sir, thanks for being with us tonight.

WYDEN: Thank you.

MADDOW: All right. We got much more ahead tonight. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Here`s the thing I think I understand but I`m not sure and I can tell it`s important and so I want to check it. In his opening statement tomorrow morning at the Senate, one of the things fired FBI Director James Comey is going to say, we now notice they released a statement, one of the things he`s going to say is that when the president repeatedly asked him to lift the cloud over his presidency, by making a public statement about President Trump not personally being a target of the FBI`s counterintelligence investigation, when President Trump asked Director Comey to lift that cloud and make that public statement, we now know that Director Comey will explain tomorrow that he didn`t do, that he didn`t make that public statement and he didn`t commit to the president that he would make any statement like that for a specific reason.

This is what he`s going to say tomorrow, quote: I did not tell the president that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct should that change.

That is what Director Comey will say tomorrow. What does that mean, a duty to correct should that change?

I think I know what that means it`s worth checking because it seems really important. Joining us now is someone who knows. Matt Miller, former chief spokesman for the Justice Department.

Mr. Miller, thank you.

MATT MILLER, MSNBC JUSTICE & SECURITY ANALYST: Yes.

MADDOW: What I believe Director Comey is saying here is at the time of those conversations at least, President Trump was not personally individually the target of the counterintelligence investigation. There was a good reason that Trump should respect for not publicly saying that because even if it wasn`t true at the time that public statement was made, if he became a target of the investigation, the FBI would then have to follow it up with a public statement saying, hey, the president`s now a target of our investigation.

Is that what he`s saying?

MILLER: Yes, that`s exactly right.

MADDOW: OK.

MILLER: And that`s what Comey uses his reasoning for sending that letter on the Hillary Clinton investigation. We can quibble about whether it existed there, but that was his reason. And the reason it applies here, too.

And it`s not just that they would have a duty to correct, but put yourself in the FBI`s shoes. Let`s say you come out and make that statement it then leaks that the investigation has moved forward and they are looking at Trump and Jim Comey gets asked again and he says, no comment.

MADDOW: Yes.

MILLER: Well, that "no comment" confirms that they`re looking at the president and that, of course, is what the FBI never wants to do is confirm who they are investigating.

MADDOW: From this statement today -- first of all, let me ask you if you think it`s unusual or important in any way that this has been released in advance of Comey`s oral testimony tomorrow.

MILLER: It`s not that unusual. It`s a little early in the day. Oftentimes, the committee`s will release it. They do it in consultation with the witness. I think they were trying to get even more attention than they`re already getting into this hearing.

And Comey probably encouraged it, too, because I think he feels that the president has lied about their conversations. He`s going to say under oath tomorrow, I think, that the president lied about their conversations and he wanted the testimony to be out there for many people to see and probably to give the senators a little head start on what questions they ought to be asking him.

MADDOW: The president`s personal lawyer, private lawyer, put out a statement today saying that the president feels vindicated by this planned testimony, presumably in part because Director Comey is now saying overtly, President Trump was not personally a target of this counterintelligence investigation. Isn`t that a vindication for the president in some ways?

MILLER: No, that that was always a red herring. For the president asking for this statement that I`m not personally under investigation, the organization that he led was under investigation. The Trump campaign was under investigation.

Whenever the Justice Department investigates any organization, whether it`s a drug cartel or a major bank or a campaign, they look at wrongdoing wherever that it is, and then they`re their M.O. is to go find people that are targets, find evidence against them and then move up the chain as far as they can.

MADDOW: Ah.

MILLER: So, let`s say for example they have evidence on Mike Flynn. They`ll take the strongest case they can to Mike Flynn in and say what do you have to tell us about say Donald Trump? That`s how they work.

MADDOW: So in the drug cartel analogy, not having the head of the cartel as the named target of the investigation for the beginning would be expected would not be some sign of vindication for the head of a cartel.

MILLER: Yes, it means they don`t have any evidence right now that he committed wrongdoing with respect to what happened in 2016. It doesn`t mean they won`t ever get there and, of course, it has nothing to do with whether he committed obstruction of justice in trying to end the investigation.

MADDOW: Matt Miller, former chief spokesman for the Justice Department -- I knew you would know. Thank you for helping us sort it out. Appreciate it, Matt. MILLER: Thank you.

MADDOW: Thank you.

We got more ahead. Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

COATS: I have never been pressured, I have never felt pressure to intervene or interfere in any way and shape -- with shaping intelligence in a political way.

(END VIDEO CLIP)

MADDOW: I never felt pressure to intervene or interfere, said the Director of National Intelligence today.

He never felt pressure, but what if he was asked to intervene? What if he was asked to interfere whether or not that made him feel pressured?

Is that asked still a legally relevant thing, a legally problematic thing what if your interaction with the president was enough to make you feel pressured? What if your interaction with the president was enough to make you feel pressure, was enough to make you feel uneasy as former FBI Director James Comey is preparing to say tomorrow? Does that count in a legal sense? Is all of this just about people`s feelings and what`s normal, or is any of this legally problematic for the president if these allegations are proven out?

Joining us now is Nancy Gertner. She`s a former Massachusetts federal judge, senior lecturer on law at Harvard Law School now.

Judge Gertner, it`s really nice to have you with us. Thanks for being here.

NANCY GERTNER, FORMER U.S. FEDERAL JUDGE: Nice to be here. Nice to be here.

MADDOW: Thank you.

Do you think that we are asking the right questions as to whether or not there`s legal jeopardy for the president here in terms of these allegations versus just violation of the way things are usually done?

GERTNER: No, no, there`s real legal jeopardy. I mean, the statute talks about an act that obstructs or even endeavors, tries to obstruct justice. It talks about that when you do something, the natural and probable consequences of which are to obstruct justice and the context is important. If you and I called up Comey and said, hey, would you lay off Flynn, it would be one thing. But when the president says it, the natural and probable consequences is to have something happen.

And the best measure of that is what Comey said. Comey who was the -- who was a U.S. attorney, who was the head of the FBI, understood what he was saying that the natural and probable consequences of what the president was saying was to get him to lay off Flynn. That is actionable, whether or not that would be, you know, where it would be enough because it will be the president`s word against Comey`s, and whoever else was asked to leave the room when the relevant comments were made, whether or not it`s enough is another question.

But whether or not this is actionable and, you know, in the zone of obstruction of justice, it seems to me clear.

MADDOW: And that`s -- that`s true both for the direct alleged pressure by the president on the FBI director himself, but also the indirect pressure that he apparently are allegedly tried to organize by other senior officials asking them to speak to James Comey about the investigation. Would that also be as clear to you as a potentially obstruction of justice?

GERTNER: Right. I mean, the issue is there`s an act here that is intended to create an outcome, and the outcome is to stop the Flynn investigation, and you have -- right now, we have Comey`s account of what was said to him, the comment about, are you loyal to me? And then you pair that with the firing of Comey, so that loyalty actually had consequences.

And then the question is, what others -- you know the whole ceremony of asking other people to leave the room so we could talk to Comey alone is itself concerning. And then the question is, will the investigation confirm all of that with respect to others? You know, right now, it will - - the president can deny it. And Comey, interestingly enough, has his notes and has, by the way, so that he was debriefed, he debriefed with other senior officials as soon as he left the room.

So, this may not be enough in any other sitting, you know, typically people are paying off witnesses, or people are threatening. But for the president to make these comments in the context that he made them is troubling.

MADDOW: And those notes that were made telling other people contemporaneously at the time of those discussions, that would be seen as corroborating evidence for witness statements?

GERTNER: Right, it`s not just that he took notes. He took notes as soon as he walked out. He said he was on his computer and he was typing them in the FBI car. He said he also talked to senior officials roughly afterwards. So, you don`t have a Watergate situation, you don`t have a tape machine, but you have Comey`s account of what went on under circumstances where it is certainly worthy of belief.

MADDOW: Nancy Gertner, former federal judge from Massachusetts, now senior lecturer at Harvard Law -- thank you very much, Judge Gertner. I appreciate you being here.

GERTNER: You`re welcome.

MADDOW: We`ll be right back. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Have you called in sick yet?

I am not that kind of doctor, but I hereby issue the entire country a doctor`s note, so you can stay home and watch the testimony tomorrow morning by fired FBI Director James Comey. You can watch it all happen right here at MSNBC. Our coverage is going the start with Brian Williams anchoring at 9:00 a.m.

That will go throughout the coverage. We will be breaking it all down afterwards, including here tomorrow night on this show. You`re excused.

That does it for us tonight.

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

Good evening, my friend.

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