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Pence weighs in on Mueller probe. TRANSCRIPT: 05/10/2018. The Rachel Maddow Show

Guests: Eric Swalwell, Sherrilyn Ifill

Show: THE RACHEL MADDOW SHOW Date: May 10, 2018 Guest: Eric Swalwell, Sherrilyn Ifill

ARI MELBER, MSNBC HOST: Chris, I have bad news.


MELBER: I have a new podcast coming out called "why isn't this happening?"

HAYES: That is a perfect joint team. People can subscribe to both.

MELBER: OK, good. You know what? Then it was good news.

HAYES: Awesome.

MELBER: I will be subscribing.

Thank you, Chris.

HAYES: You bet.

MELBER: And I want to thank you at home for of course joining us this hour. Rachel has the night off.

It was a year ago today that President Trump opened the oval office to host Putin's foreign minister and his ambassador in the United States, the Russian ambassador. This is one day of course after he fired FBI Director James Comey. The photos you're looking at right now are from the Russian government, because no members of the U.S. press were invited to attend.

And Trump confided in the Russians with classified information from an American ally. That caused an uproar at the time. As for the Comey firing, Trump told the Russian officials that firing eased pressure from the investigation, which apparently concerned someone so much that that quote itself leaked. "The New York Times" reporting that Trump said, I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That's taken off.

And that's not all. On that same day, Mike Pence was publicly denying what Trump was privately telling those same Putin appointees in a comment that would later be shredded by Donald Trump's own public statement to Lester Holt.


REPORTER: What about the president's dissatisfaction with the Russia probe? Did that play into this, sir, and --

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: Let me be very clear, that the president's decision to accept the recommendation of the deputy attorney general and the attorney general to remove Director Comey as the head of the FBI was based solely and exclusively on his commitment to the best interests of the American people.


MELBER: Some statements don't age well. Tonight, a year later, we know that even Trump's allies don't bother claiming anymore the Comey firing was about a recommendation from Rod Rosenstein and Jeff Sessions. Everyone knows it was a Trump idea. He even owns it.

But that day, Pence was eager to adopt the company line, whatever the company line was -- which brings us back to today, because if you want to know the company line in this administration, if you want to know exactly what the official Trump position is, the exact talking point offered with no independence and certainly no improvisation, turn to Mike Pence. You know, former Trump lawyer Ty Cobb, he may have been too cooperative with Mueller for Trump's taste.

And the new Trump lawyer, Rudy Giuliani, he may be too chatty, but Mike Pence, boy, does he stick to the script.

Here he is today telling Andrea Mitchell, Mueller needs to wrap it up.


PENCE: What I think is it's been about a year since this investigation began. Our administration has provided over a million documents. We've fully cooperated in it. And in the interests of the country I think it's time to wrap it up. And I would very respectfully encourage the special counsel and his team to bring their work to completion.


MELBER: Very respectfully.

You know who's not in charge of an investigation's timeline? The people under investigation. And Mike Pence knows that.

He also knows that Trump has certain things he wants to hear and he knows his own former Republican colleagues in Congress are now literally threatening impeachment against Mueller's boss while demanding that they receive classified documents in the middle of this probe. It's telling that the "I" word is coming more from House Republicans about Rod Rosenstein than from anyone else about Trump, and their line in the sand is not even a pretext or a cover story. They're literally saying they want the DOJ to tell them where the probe is headed, demanding an unredacted version of what you see right there, that classified August memo that authorizes Mueller to investigate certain enumerated targets.

That memo is Mueller's road map, and it reflects the criminal evidence that he and the FBI found, which they say warrant going potentially beyond Mueller's orange the mandate. And thus Rosenstein has to approve it under the rules, and we only know that because the Manafort part was later unredacted and revealed after his own indictment. The other targets, the people who maybe haven't been indicted yet and maybe they won't be, but those people, that part of the map is redacted.

It's so secret that even a judge in Manafort's trial, who is authorized to see classified material, has not been provided the unredacted parts of this proverbial map. And the DOJ says they won't give it to these politicians in Congress. They cite the ongoing investigation as well as, quote, long- standing principles of investigatory independence.

At the same time, the House Intelligence Committee Chairman Devin Nunes says he wants to hold DOJ officials in contempt for not releasing information about a secret intelligence source tapped by Mueller. DOJ rebuffing that request as dangerous and could involve the potential loss of human lives.

Now, there is a flashback here. This whole scuffle echoes House Republicans' quest to release secret surveillance information through that famed Nunes memo. Many experts concluded the Republicans lost that message war over the memo. It showed that Trump aide Carter Page was surveilled but lawfully under a judge's order's, so it didn't seem to make the DOJ look that bad.

But let's be clear: Republicans did manage to break a precedent with that pressure. They got stuff out that usually doesn't come out. They got some of what they wanted through threats and hostage taking. And that can embolden more threats and hostage-taking.

Rod Rosenstein, he may have been slow to learning that lesson about House Republicans. This is the man, after all, who effectively got bullied into joining Trump's cover story for Comey's firing. You see his name there on that infamous letter about it. And then, of course, he fled from that mess by appointing Mueller.

But lately, and this is very important tonight, lately, Rod Rosenstein says he's had enough.


ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: I can tell you the different people who have been making threats privately and publicly against me for quite some time, and I think they should understand by now, the Department of Justice is not going to be extorted.


MELBER: Last week, "The New York Times" reporting that the deputy attorney general and the top FBI officials now suspect Republican lawmakers are using these oversight responsibilities to try to gain intel about the open investigation and then feed it back to the White House. That alone is an explosive claim.

Republicans in the House Intelligence Committee this week are still continuing this offensive. They're demanding documents. They're trying to go around the DOJ and appeal directly to the president to intervene.


REP. PETER KING (R), NEW YORK: The Justice Department has to turn over these documents. And the president can decide whether they should or not. The president should make that decision. Our position right now is that Justice Department has to turn over these documents.

REPORTER: But if they don't, though, would you support a contempt resolution?

KING: We're not going to go there. The president can order them to do it. I'm counting on the president to do the right thing.


MELBER: That was Tuesday. Today, Speaker of the House Paul Ryan adding his pressure, joining the ranks of those saying the DOJ must hand over the documents to Republicans.


REP. PAUL RYAN (R-WI), SPEAKER OF THE HOUSE: I think this request is wholly appropriate. It's completely within the scope of the investigation that's been ongoing for a while with respect to FISA. I actually think that this is something that probably should have been answered a while ago.

It's our job to do oversight of the executive branch. This request is perfectly appropriate within the scope of the committee's investigation. And I hope and believe and expect that they'll be complied with.

REPORTER: So you support Chairman Nunes?

RYAN: Absolutely. Yes. No, I think it's a completely appropriate request.


MELBER: Meanwhile, the top Democrat in the Intelligence Committee weighing in today. Virginia Senator Mark Warner saying: Bombarding the Justice Department with document requests simply to create a pretext for firing or impeaching our nation's senior law enforcement officials is a blatant abuse of power that should concern everyone who believes in the rule of law.

So, we don't know exactly how Rod Rosenstein, Mueller's boss, is going to walk this line, how he's going to do what he said, uphold a somewhat unpleasant part of the DOJ, which is to tell Congress sometimes, you can't have everything you want just because you're demanding it when we have an open probe going on.

We also know that today Congressman Nunes and Trey Gowdy went to the Justice Department to meet with Rosenstein and then released a statement saying they had a productive discussion with officials from the Office of the Director of National Intelligence, the Department of Justice and FBI in which we raised questions related to information requested from the intelligence community. The officials are committed to holding further discussions on these matters and we look forward to continuing our dialogue next week to satisfy the committee's request.

Republicans are basically saying this whole thing is punted for maybe a week and they have of course been pressing for this for weeks and they are using the I-word. They are threatening impeachment of DOJ officials.

But let's be clear about something tonight. This fight has been going on since before there was even a special counsel probe. It's actually been going on since before President Trump fired James Comey, and it was documented by Comey in those memos he took because he said he was concerned. He memorialized this pressure from Congress in the memos here on March 30th after a specific phone call with President Trump.

He writes he had not testified before Congress as a volunteer, the president then asked, look at this, who's driving that? Is it Nunes driving it?

Quoting Comey: I said all the leadership wanted to know what was going on, and I mentioned Senator Grassley had even held up the deputy A.G. nominee to demand information.

Two things there. One, that deputy A.G. of course, is Rod Rosenstein, the one under pressure now. And two, what extent is Donald Trump involved in creating that pressure that ostensibly is coming from these House Republicans? Pressure which seems to be ramping up right as the pressure on Michael Cohen is ramping up tonight.

To dig into it, I turned to Congressman Eric Swalwell. He sits, of course, on the House Intelligence Committee.

Thank you so much for being here tonight.


MELBER: "The Times" reporting that Rosenstein and others now view this as an activity by House Republicans to get this material over to the White House. Is that appropriate? Is it potential obstruction?

SWALWELL: Not appropriate. Looks a lot from where I sit as obstruction and that these individuals are acting as the president's fixers in Congress, who are seeking simply to have the department of justice say no so they can create the circumstances in which President Trump can fire either Rosenstein or Sessions or both. And if they do get the information, we've seen in the past where this information goes.

If you remember the Republican memo, they took that information and it actually ended up over at the White House. So, the White House was able to see as subjects to the special counsel's investigation evidence that existed in the case against him. That is not how you run any investigation. You would never give suspects or subjects in an investigation the keys to the evidence locker at the FBI.

MELBER: Do you think Rod Rosenstein is up for this fight?

SWALWELL: Yes. He sure looks like he's up for this fight. And if he gives in on it, he will allow future members of Congress to weigh in and influence investigations. And that's just not how it works. I think he's going to hold firm here because he knows what's at stake. You can't let that safe crack.

MELBER: Your colleague, Congressman Adam Schiff, who viewers know from many of his discussions on this, was briefed about this at the DOJ.

Do you have any information from that briefing?

SWALWELL: I don't, Ari. And, you know, frankly, when it comes to ongoing investigations I think Congress should stay out. And so you know, Mr. Schiff is in what's called the Gang of Eight, and let's keep it compartmentalized that way. Of course, we have an oversight rule, once the investigation is over. But we really should be playing a very limited role right now as a special counsel does his job, follows the evidence, and tells the American people who was responsible for what happened last presidential election.

MELBER: What does it look like if a Congress does try to move forward with impeaching a DOJ official like Mr. Rosenstein?

SWALWELL: Green lights. It looks like Paul Ryan and Mitch McConnell seem to have sanctioned this type of behavior. They are doing nothing to shut down efforts like this. And Mitch McConnell in fact is not allowing the bipartisan legislation that came out of the Senate judiciary committee that would protect bob Mueller to come to the floor.

MELBER: Would there be -- I mean, when people think back to, for example, the Clinton impeachment proceeding would it look like that? Would there be a Senate trial? What are they threatening to do?

SWALWELL: They're threatening right now to hold attorney general sessions in contempt. So, that would not be a trial. If they wanted to move beyond that, of course, the House could vote to impeach and then the Senate would conduct the trial.

I hope it doesn't come to that, Ari. Again, that would really encroach on the rule of law. It's really people like Paul Ryan and Republican leadership who need to I think stand up for the rule of law rather than looking the other way. And that's what we continue to see.

MELBER: Congressman Eric Swalwell, right in the middle of this story -- really appreciate your time.

SWALWELL: My pleasure.

MELBER: I want to turn to now Matt Miller, former spokesman to the Department of Justice under Eric Holder. Thank you for being here.

Put this in the context of precedent, which isn't always that informative in the Trump era because they seem to delight in breaking precedent. But how does this compare to the inner branch debates you guys had? Certainly, Eric Holder did face a House willing to hold him in contempt.

MATT MILLER, FORMER SPOKESMAN TO THE DOJ UNDER ERIC HOLDER: Right. So, there's one thing that's important to know and there are no statutes. There's nothing in the Constitution that really governs this area. It's all based on norm and precedent, in some limited areas, some previous court cases.

And there are -- you know, there's kind of three areas. One bucket where the Department of Justice always provides information to Congress. One bucket in the middle where they sometimes provide information to Congress, subject to, you know, certain privileges like executive privilege.

And then there's a third bucket that's always been a red line the department has refused to cross and that relates to ongoing investigations. And the department has always taken the positions that it will not provide that information because it can jeopardize the investigation by tipping off potential subjects, what they might face under questioning.

And then there's kind of even beyond that, if you look at this, the exact information that's in dispute here. You know, what the Department of Justice has said is there is a classified source providing intelligence information whose life would be endangered if this information came out.

It is beyond -- really, it's just so far beyond the pale of anything the department has turned over in the past that, you know, there's no excuse for Congress taking this extremist position.

MELBER: That's all on the norms and the precedent, as you say. Then there's what it would actually look like if we unredacted this road map, this very secretive road map that Rosenstein and Mueller have. And I suppose the most responsible way to explore this is with the part that has been removed and unredacted, which is that he was authorized to go farther into Manafort's history than just 2016.

If that had been unredacted earlier, before Manafort were charged, among the other problems we've discussed, wouldn't that also be enormously unfair to Paul Manafort? Isn't there a problem here, that this would be a wrecking ball to other people that Mueller and Rosenstein have not finished deciding whether they should even be charged?

MILLER: Yes, it's absolutely right, Ari. I mean, one of the things at the Department of Justice, one of the rules is you don't talk about investigations, you don't share the product of investigations until it's finished and even when it's finished, only if you're bringing charges because it doesn't give people an opportunity to defend themselves. If it named, for example, you know, Roger Stone or Donald Trump Jr., any of the other people in the Trump orbit and it said what allegations the department is investigating that automatically puts those people under suspicion in a way that's not really fair to them because there's no way for them to clear their name publicly.

You know, I doubt the members of the House are all that concerned or thought that through, but it is an important reason that is consistent with the department's long-standing rules of not unfairly implicating those under investigation.

MELBER: And based on what has emerged publicly, including DOJ court filings, there is a legal rationale for the idea that under that redacted portion might exist Michael Cohen's name because we know from the referral that Mueller has determined that part of the probe should require some other jurisdiction than just his. Do you have any idea from what is publicly available who else might be under that black box?

MILLER: Well, I think it's almost certain that the president himself would be under that black box. You know, it was reported shortly after the investigation began that the president was under investigation for obstruction of justice, and I think it's actually pretty clear that's what Bob Mueller was appointed in the first place. If you remember, he was appointed about 10 days after Comey was fired and it was only after the Comey memos became public and Rosenstein saw those memos and it was clear that the president had had this series of inappropriate interactions.

So, you know, whoever else's name we might see in that, you can think of all the people in the Trump orbit who have surfaced in this investigation, it would almost certainly include the president himself.

MELBER: So, we're out of time but that makes me really want to ask you. Do you think the house Republicans pursuing this know that and care or don't care or don't know it?

MILLER: You know, they probably don't know it. In some ways, I don't know that they actually ever care whether they get these things they're asking for. You know, in a lot of ways they just like to kick up dirt and kind of throw smears at this investigation. The people that write columns in the "Wall Street Journal," then go on Fox News, they're happy to just accuse the department of stonewalling. It's almost better for them.

And to the point that Mark Warner made in that tweet that you showed, if the department never turns this stuff over, maybe it gives the president the pretext he's been looking for for some time to fire Rod Rosenstein and try shut down the investigation.

MELBER: Expert analysis, chilling at times. Matt Miller, former spokesman for the DOJ -- thank you for your time tonight.

MILLER: Thank you, Ari.

MELBER: Up next, we're going to turn to some of the new details we are learning tonight about one of those companies that's now been publicly exposed for paying Michael Cohen. What it says it was getting for that money.

Stay with us.


MELBER: Last night, some of the biggest rivals in baseball, the Yankees and the Red Sox, faced off in the Bronx. And right there, behind home plate, rooting on the home team, none other than former New York City Mayor Rudy Giuliani. It was a big night out for him. And he's had a lot on his plate.

He's of course a partner at the white shoe law firm of Greenberg Traurig right here in New York. He also is as of three weeks ago tonight a member of the president's legal team, which was supposed to be a gig to, quote, quickly resolve the special counsel investigation. The idea that Giuliani would take a, quote, leave of absence from his firm and be there in the short term.

You might call that a kind of legal moonlighting while you deal with the biggest case in the country, but that plan has hit the skids. Consider that three weeks in tonight I can tell you Giuliani has abruptly resigned from the firm. They say that it's, quote, in everyone's best that I make the permanent resignation. That's a statement they released from him. And Giuliani's law firm says the temporary gig with the president actually turned out to be all consuming and lasting longer than initially anticipated.

So, Giuliani's resignation effective Wednesday meaning when Rudy was sitting behind home plate at that Yankee game unbeknownst to everyone in the crowd, he had just resigned. Giuliani also telling NBC News the parting of ways was a mutual decision adding: I don't know how long this will go on. You think?

This, of course, is special counsel Robert Mueller's investigation into Russian meddling. What the Trump folks did in 2016 and what Donald Trump has done as we were just reporting in potential obstruction. Now, if you judge by the geyser of new reporting about just one piece of this, Michael Cohen, Donald Trump's long-time lawyer, Mueller has a lot more to chew on than many people initially knew.

It was just two days ago that Michael Avenatti, Stormy Daniels' attorney, dropped the bomb with that report outlining and alleging a slush fund run by Cohen which saw money deposited by the likes of among others this company Columbus Nova with strong ties to a Russian oligarch linked to Putin plus AT&T, plus a big pharmaceutical company, Novartis. Mueller's team questioned both those companies over the payments. That happened a while ago, we just didn't know about it until Avenatti dropped this bomb.

In fact, now that it's come out, neither of those companies deny the payments, but there's even more to this story. The drug giant CEO sending an e-mail to all staff saying, quote: yesterday was not a good day for Novartis given the news about their relationship with Cohen.

But if yesterday was bad for Novartis, today could be worse. Take a look at this new reporting. It turns out, this is according to Stat News which specializes in health care coverage, that the $100,000 monthly retainer fee that Novartis was paying to Cohen's LLC was to help it, quote, better understand U.S. health care policy matters and it was four times more, I'm going to repeat that, quadruple what it paid any other qualified external lobbyist.

Also according to Stat News, Novartis has spent $12 million on lobbying since Trump took office. Compare that to the $1.2 million that went entirely to Michael Cohen, about 10 percent of everything this giant company says they've spent on lobbying.

Then you have the amount AT&T handed over to Cohen. Michael Avenatti in his initial report had said AT&T had given essential consultants about $200,000. The actual amount, now that this is all coming out with new reporting, it tops out closer to $600,000.

AT&T saying what the 600 grand is for. Well, that explanation has already shifted rapidly in the new story. First, you heard it was expertise on, quote, regulatory reform. OK. I don't know that that's his expertise, but OK.

Then they said it was for an understanding of the inner workings of Trump. That might be closer to what Cohen knows. But now, and this is worse, "Washington Post" reporting internal documents, that's what they say obviously to themselves, that reveal for the first time ever that AT&T's $600,000 for Michael Cohen had a specific condition, that Cohen advise them on the whopping $85 million merger between AT&T and Time Warner, which requires Trump administration-appointed regulators, a merger that Trump had opposed during the campaign. Now that AT&T case is still pending tonight.

But as quid pro quos go, this Cohen AT&T deal, well, that would give you quite an expensive quid. The new reporting still coming 48 hours after Avenatti dropped that bombshell.

Now, today Mr. Avenatti wasn't done. He lobbed another one, an important one. And that's next.



RACHEL MADDOW, MSNBC HOST, TRMS: Do you believe or do you have reason to suspect, evidentiary reason to suspect that President Trump or the Trump Organization was involved in any of this?

MICHAEL AVENATTI, STORMY DANIELS' LAWYER: I don't want to opine on that, except this will what I'll say. Even up until this day, Michael Cohen identifies himself as an attorney for the president, and I believe he identifies himself on his LinkedIn page, or at least he did as of yesterday, as an attorney with the Trump Organization.

It's unclear as to when he left the Trump Organization. So you could make an argument that this entire time period that we're talking about, he only really has one employer and that's the Trump Organization. So, I don't know how he could be carrying this out on his own or for his own reason. I mean, it's very blurry as to who he's operating for and when.


MELBER: Stormy Daniels' attorney Michael Avenatti speaking with Rachel just last night. Mr. Avenatti pointing out that whatever the explanation for those vast sums of money flowing to Mr. Cohen's slush fund, Essential Consultants, there's also the question of what his main client, President Donald Trump, knew about it.

Rudy Giuliani maintaining today the president knows nothing about it. Avenatti pushing back and implies otherwise. This is his latest attempt to shake up the narrative. And, of course, as we point out he has a dog in the fight. He tweeted this purported e-mail from Michael Cohen to Keith Davidson. That is the attorney who he replaced representing Stormy Daniels. Plus, "Playboy" playmate Karen McDougal, who's also claimed relations with President Trump.

And Cohen signs off here in this e-mail, Michael D. Cohen, Esquire, personal attorney Donald J. Trump.

To Avenatti's point here last night about how much the president could have known about the slush fund, Cohen basically going on to identify himself as the attorney to Trump. The other thing is the date April 11th. This is two days after the feds raided Michael Cohen's home and office and hotel room.

So, the Avenatti argument is the two men had no ongoing legal matter going on at the time, so the e-mail could look like an attempt by Cohen to obstruct justice or worse. That's the question he raises about his adversary.

Now, it's unclear, to be clear and to be fair, whether as Avenatti claims these two men had no legal matters between them. We don't really know. Mr. Avenatti also saying, I've been trying to get those documents from Mr. Davidson for months. The e-mail was provided to me within the last 24 hours and raise serious questions as to why Cohen was attempting to contact Keith Davidson less than 48 hours after the FBI raids. That e-mail may be evidence of an attempt by Michael Cohen to obstruct justice.

Now, we haven't been able to confirm whether Cohen and Davidson had reasons to talk or what came of that e-mail. But it is 48 hours after the FBI does this raid. And that makes it look something like a modern Rorschach test for this wild set of rapidly evolving stories. Cohen basically says this is business as usual, you can contact a fellow or recent colleague. Avenatti says this might be a new crime in and of itself.

I'm joined by former federal prosecutor Joyce Vance.

Always good to see you, Joyce. Thanks for being here.

How would Avenatti come into contact with this material? Viewers are now growing accustomed to him putting himself out there as some kind of super source. And what do you see in the text of this e-mail?

JOYCE VANCE, FORMER U.S. ATTORNEY IN ALABAMA: So, it's interesting Avenatti has apparently become a real magnet for people who want to you could call it whistle-blow or disclose information to him that at least from a former federal prosecutor's point of view isn't really properly discloseable, bank records, confidential e-mails. But they are coming to Avenatti and going back out into the public domain, giving us a lot of interesting material that we wouldn't otherwise be aware of.

One risk, Ari, I think it's important to say, is that we may be seeing materials that are related to the ongoing Mueller or Southern District of New York investigations. And that disclosure could actually hamper those investigations. For instance, disclosing the people under investigation, where the investigation is headed. So, it's a little bit dicey on that end.

But as far as this particular e-mail goes and the timing of it, there's obviously a lot to explore on the details of this communication to determine whether there is some sort of criminal activity going on or whether it's just business as usual.

MELBER: You say business as usual. I mean, Michael Cohen it's fair to say is not your average lawyer. But even knowing that, why would he think in your view, what would be the benefit of the doubt explanation to him reaching out to Mr. Davidson, a purported opponent, two days after the raid? Wouldn't he be focused on other things?

VANCE: You would think, and it looks incredibly suspicious, I guess if we wanted a generous explanation, perhaps he wanted to clarify some details about whether documents he had been provided were covered by attorney- client privilege. There could be, you know, maybe some technical issues like that. But given what we know about this particular lawyer and the way he perhaps misrepresented Stormy Daniels, there's a lot of reason to be suspicious of this communication and to want to know what the details were.

MELBER: Let's go to that because it goes to the concept of switching sides. This lawyer, who was pre-Avenatti, was not like Michael Avenatti, was not running around zealously advocating for these clients. Indeed Karen McDougal alleges in court that he conspired against her, which you can be disbarred for, and with Michael Cohen.

How do those allegations figure into understanding this because -- and this goes to another piece of what Cohen was doing reaching out to him -- it's been reported that Mr. Davidson is actually cooperating with the feds in the Cohen case now as well, which would mean he switched sides allegedly three times?

VANCE: Lawyers have a duty to vigorously represent their client, as you point out. And it's a bar sanctionable offense. You can lose your license to practice law if you don't hold your own clients' interests in primacy when you're doing your legal work.

Beyond that problem that a lawyer could have with the bar, though, there's also the potential that there could be other misconduct that could go on over into the criminal arena. We don't know that that's true here, but it does seem likely that when Mueller's team or when Southern District of New York prosecutors approached this lawyer that they knew a lot about what had gone on in his representation of Ms. Daniels, that they knew that he was perhaps better representing Mr. Trump's interests than those of his own client, and now they know the full story because they've had access to him for some period of time.

MELBER: Joyce Vance, a former federal prosecutor from Alabama, thank you very much.

There is a lot more to come tonight. Stay with us.



SEN. RICHARD BLUMENTHAL (D-CT), JUDICIARY COMMITTEE: Ms. Vitter, do you believe that Brown versus Board of Education was correctly decided?

WENDY VITTER, DISTRICT COURT JUDGE NOMINEE: Senator, I don't mean to be coy, but I think I get into a difficult -- a different -- a difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with. It is binding. If I were honored to be confirmed, I would be bound by it. And of course I would uphold it.

BLUMENTHAL: Do you believe it was correctly decided?

VITTER: And again, I would respectfully not comment on what could be my boss's ruling, the Supreme Court. I would be bound by it. And if I start commenting on I agree with this case or don't agree with this case, I think we get into a slippery slope.


MELBER: Donald Trump's appointee to a federal appeals court, Wendy Vitter, saying one reasonable thing there and one horrendous thing at her confirmation hearing. It's reasonable for judges to be careful when commenting on Supreme Court decisions since they're supposed to keep opinions quiet and follow the law in office.

It's also concerning if a judge cannot find a way to speak to the propriety and logic and rightness of the foundational principle that our schools should not be racially segregated. She was also pressed on her past work promoting this brochure, which claims birth control pills can kill women, and the issue with Brown v. Board is arising with many Trump nominees.


BLUMENTHAL: Do you believe that Brown versus Board of Education was correctly decided?

ANDREW OLDHAM, FIFTH CIRCUIT COURT OF APPEALS NOMINEE: Senator, of course, Brown versus the Board of Education corrected an egregious error in overruling Plessey versus Ferguson in the Separate but Equal Doctrine. And if I --

BLUMENTHAL: Is that a yes?

OLDHAM: Well, Senator, if I --

BLUMENTHAL: Yes or no? Do you think it was correctly decided?

OLDHAM: Senator, if I appeared before you as a private citizen unbound by the canons of conduct that apply to United States judges, I could give you a yes or no answer, but because I'm a judicial nominee, I'm not allowed to comment on the merits of the Supreme Court --

BLUMENTHAL: So you think it may have been incorrectly decided?

OLDHAM: Senator, even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on. That's not --

BLUMENTHAL: Neil Gorsuch sat before this committee and when I asked him this same question he said yes. Are you saying that Neil Gorsuch violated some ethics rule by saying that Brown versus Board of Education was correctly decided?

OLDHAM: Not at all, Senator Blumenthal.


MELBER: Not at all. Now, another Trump judicial nominee who was criticized this week for past writings that attacked political correctness, OK. Well, is that so bad? But they also claim the politically correct efforts to advance tolerance are more damaging than Nazi book burnings.

Here's the quote getting attention. I've often marveled at the odd strategies that some of the more strident racial factions of student body employ in their attempts to heighten consciousness and promote diversity and convince us that to partake of that fruit which promises to open our eyes to a PC version of the knowledge of good and evil. Still quoting: I'm mystified because these tactics seem always to contribute to more restricting consciousness, aggravating intolerance, and pigeonholing cultural identities more than many a Nazi book burning, end quote.

Now, a lot of people use turns of phrase they regret. But this is not just a debate about word choice. This is the stricter question of whether this person has the judgment to get a lifetime appointment to the federal bench to decide other people's freedom. And the wider issue tonight is Trump's judicial nominations are actually one of these areas where even while his legislative record may be thin and these nuclear negotiations are TBD, the nomination work grinds on powered largely by conservatives in the Trump administration who can pick names without a lot of shall we say hands-on presidenting from the president.

And I can tell you tonight, there are 148 vacancies on the federal bench in America. Republican political groups very clear about their agenda for these spots -- they want nominees that are conservative, loyal, and young. And some are eyeing a new vacancy that could even tip the Supreme Court before 2020.

This is what Senator Grassley said today: my message to any one of the nine Supreme Court justices, if you're thinking about quitting this year do it yesterday.

Meanwhile, the GOP is breaking rules that Democrats used to follow in the Senate. They're ending the practice that allows senators to veto home state nominees, which was once a local courtesy.

So, while Donald Trump talks up North Korea and the Mueller probe continues to put heat on all kinds of Trump associates, the consequences of this battle will by definition outlive the Trump era. Mitch McConnell knows that. We checked the numbers, and he's teed up over a dozen judicial nominations for Senate votes.

Now, Donald Trump may not lift a finger in this fight, and I mean that literally. He's never used his Twitter fingers to tweet about these appeals court nominees. In fact, since the election he's only tweeted twice about votes on nominees for the executive branch. This doesn't seem to be a fight that interests him personally.

But as Rachel says, watch what they do because the Trump administration, thanks clearly to the staffing, today put forward 10 more of these judicial nominees. Can the administration keep up this pace? How much more of this kind of court pressure are we going to see?

Well, tonight, we have the perfect person to ask about this next. Stay with us.


MELBER: Just tonight, the Democrats on the Senate Judiciary Committee put out this report, they call it a review of Republican efforts to stack the federal courts. It's signed by every single Democrat on the committee and they state: President Trump and Senate Republicans have prioritized filing the nation's federal courts, particularly circuit courts, with ideologically judges intent on weakening civil rights, women's rights, and the ability of everyday Americans to hold corporations accountable.

They continue that alleging that the Senate Republicans have placed two circuit nominees on hearing, scheduled hearing before the nominees were evaluated by the ABA and ignored the ABA's not qualified ratings, neglecting to follow-up when nominees did not disclosed information required.

Democrats on the committee are sounding the alarm on this rush of judicial nominees which Republicans want to force through for Donald Trump. And the Democrats are saying they're seeing ideological nominees that are weakening civil rights. That may not even be qualified under what is, of course, the nonpartisan standard from the ABA. Republicans they say also undermining the entire vetting process.

We turn to an expert on these issues who has been sounding the alarm. Sherrilyn Ifill is the president and director counsel of the NAACP Legal Defense and Educational Fund, which calls tonight's report sobering.

This is one of those things that's so important, it will outlast the life of this administration --


MELBER: And us. That's a humble thought about our humanity.

And yet doesn't get a ton of attention. Why are you shining a light on it?

IFILL: Well, I've been sounding the alarm on this for some time because, frankly, in many ways, this is the most important legacy of this president, or any president, is the way they shape the federal bench. When President Obama was in office the Republicans slow walked many of his nominees and as a result, when President Trump came into office, he had 112 vacancies on the federal bench that he could fill. That was twice the amount that President Obama had when he first took office.

So, he had a whole lot of positions to fill. But that wasn't good enough for the Republicans, particularly on the Senate Judiciary Committee. They want to push these nominees through as fast as possible. And the result is that we've seen categories of nominees that I have not seen in my career as long as I've been looking at this work. Nominees that are patently incompetent.

We all remember Max Peterson, the nominee who never tried and case and never seemed to have seen the inside of the courthouse. We remember Brett Tally (ph) who ultimately had to withdraw after it was revealed he had written 1,800 blog posts, some of which he placed the Ku Klux Klan.

These are all -- this is all information that we found out not because the nominees disclosed that information on their Senate questionnaires. We found out because groups like the Legal Defense Fund and the Alliance for Justice probed and looked in the record and found this information.

And that's why the pushing through of these nominees so quickly is so really devastating, because we're only discovering what we need to learn about these nominees when we really pushed. When we see these nominees answering questions, in which they're not able to say that Brown versus Board of Education was correctly decided, you had this up in the earlier segment.

This is important information that we have to probe, and yet, Senator McConnell, Mitch McConnell, is determined to push these nominees through as soon as possible to the point today that he did something that is virtually unprecedented, been done very rarely in the past and that is bring a nominee to a vote even though one of his home state senators has not returned the blue strip and that's Michael Brennan for the seventh circuit.

MELBER: Right, and that again goes to the real intensity behind which Republicans are pushing this, even if it's one of these things that Donald Trump isn't all that clued in on. You mentioned Brown, let me read from Dahlia Lithwick, who talks about these nominees that struggle that we'd just shown, and she asked, are Vitter and Oldham suggesting they can't discuss Brown because they believe it's conceivable that a case questioning its prohibition on racial segregation could come up before them now, what case would that be? If the nominees refuse to give their views about Brown, will they refuse to talk about Dred Scott, which is, of course, refuted the humanity of Black Americans, what about the internment of the Japanese?

Why is Brown a sticking point for them? I ask this fairly, not in a baiting way. Is this as bad as it looks or is it possible they've been poorly coached and they think if they answer one case they'll get ten more?

IFILL: No, I don't think so. I've heard that. You explained why in the quote from Dahlia Lithwick.

You know, judges who are nominated to sit on the Supreme Court, for example, know that perhaps Roe versus Wade might come before them again.


IFILL: It would be news to me as a practicing civil rights lawyer that Brown versus the Board of Education is likely to come before the Supreme Court any time soon. It is part of the cannon that constitutes kind of the center of our justice system.

MELBER: Right.

IFILL: No one questions whether Marbury versus Madison was correctly decided. People readily talk about, you know, some of the terrible decisions, Dred Scott, Plessey versus Ferguson, Korematsu.

MELBER: Do you see it as a judicial dog whistle?

IFILL: I do think so. I do think it's actually a signal. I mean, you recall when Neil Gorsuch was asked the question, he tried a couple of times to avoid. He didn't want to answer it but then he finally came across and answered the question. There are other very conservative justices who answered this question. Justice Scalia answered it was correctly decided for example.

So, it's not a question of whether you're conservative or not, it's not a question whether it's going to lead you down the primrose path of answering questions about cases that might come before the court. Brown is part of the central candidate, now essentially reflects your belief in the role of law. It ended apartheid in this country.

And the idea that a judge, or who wants to be elevated to a seat on the federal bench, somehow can't bring themselves to say this was central case to American democracy was correctly decided, is deliberate. And we saw that once Wendy Vitter did it, the next week, Andrew Oldham did it. It's catching on.

And I think we're likely to see more judges saying it. It's now becoming something that can be said. And this is where the lines are moving, Ari, and this is what's so important. The public watching it should not believe that this is normal. This is deeply abnormal. This is deeply far outside what we have seen even with the most conservative judges who come before the Senate Judiciary Committee.

And that's why it's important for people to call their senators and tell them I want you to do your job, I want you to fully vet these nominees, I want you to read the questionnaire and I want to know before they sit at the table whether they've ever tried a case, and I want to know whether they stand for the principles of equality and justice that are enshrined within Brown versus Board of Education.

MELBER: Sherrilyn Ifill, thank you for your work on this in educating this -- you know, on this issue, which is so important. NAACP Legal Defense Fund. I really appreciate it.

What we're going to do is fit in a break and I've got one more thing to tell you when we get right back.


MELBER: House Speaker Paul Ryan says he's not running for office again but he has at least one more big job to protect the Republican majority in the House from the blue wave in the making.

Today, some insight how it works. "Politico" reporting Ryan went to Las Vegas to meet with super donor Sheldon Adelson, but by law, Speaker Ryan cannot ask for the kind of check the congressional leadership really needs. So, instead of popping the question himself, "Politico" reports after the pitch for protecting the House with an infusion of cash, Ryan left the room and then a former Republican senator made the ask and Adelson cut the check an enormous check for, yes, $30 million.

That is our show. I'll see you tomorrow 6:00 p.m. Eastern on "THE BEAT". I'll be joined by Maya Wiley, Karen Loeffler, Howard Dean, and the rapper Lecrae.

But now, it is time for "THE LAST WORD WITH LAWRENCE O'DONNELL".

Good evening, Lawrence.


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