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ACLU challenging Trump immigration policy. TRANSCRIPT: 06/04/2018. The Rachel Maddow Show.

Guests: Josh Gerstein, Lee Gelernt

Show: THE RACHEL MADDOW SHOW Date: June 4, 2018 Guest: Josh Gerstein, Lee Gelernt

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

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

As Chris just mentioned, that news that he just broke last hour, we`re following an unusual breaking news story this evening in which prosecutors in Robert Mueller`s office, in the special counsel`s office, have filed a motion, unexpected motion tonight, just filed this evening in federal court in Washington, D.C. asking the judge in the Paul Manafort case to revoke Paul Manafort`s pretrial release.

Paul Manafort, President Trump`s campaign chair, as you know, has been charged with multiple felonies in two federal jurisdictions. He`s looking at going on trial in July and again in September.

And in both of those trials, he is out essentially on bail. He`s put up millions of dollars basically as security, telling the government he won`t flee the country, he won`t flee prosecution. He`s wearing ankle bracelets -- he`s wearing either one or two ankle bracelets and he`s promised to put up millions of dollars worth in property and cash to say that he can be left at home rather than in jail while he awaits these charges.

The special counsel`s office tonight is saying said that while he`s been out on bail, while he`s been on pretrial release, Paul Manafort has been tampering with witnesses in his case and he should therefore effectively be jailed, and they`re demanding that from a judge this evening.

So, again, that is just breaking -- that news is just breaking tonight. We`re just getting in that filing. I, in fact, just read it as I was getting makeup put on just moments ago. We`re going to have some expert help in terms of figuring out what that means and how serious this is for the president`s campaign chair, potentially for the president coming up in just a moment. So, stay tuned for that.

In the meantime, though, this did not age well. This was the headline in "New York Law Journal" following the first court appearance by Michael Cohen`s lawyers after Michael Cohen`s office, home, hotel room and safety deposit box were all raided by federal agents in April of this year. And you can see the headline there.

Michael Cohen`s attorneys claim thousands of privileged documents scooped up in raid. The headline actually understates it a little bit. What Michael Cohen`s lawyer actually said in court was that thousands if not millions of documents that were seized from Michael Cohen should be considered privileged.

And in this case, privileged means that prosecutors shouldn`t be allowed to see those documents, even though those documents were seized by federal agents. The privilege claim is that because Michael Cohen is an attorney, anything that represented confidential legal advice that Michael Cohen might have given to any of his legal clients, that`s something nobody else has the right to see. Of course in our system of justice, everybody has the right to confidential secret communications with their legal representative.

When federal prosecutors from the Southern District of New York swooped in with FBI agents and took all this stuff from Michael Cohen`s practice, from his legal practice, his office, his home, and the hotel room where he was living, this was their defense. Hey, you may have taken all that stuff pursuant to the search warrant, but you can`t look at it.

Thousands if not millions of those documents that prosecutors just took, those are confidential legal -- that`s confidential legal advice that Michael Cohen gave to his clients. Prosecutors will never be able to allow -- never be allowed to look at that stuff, prosecutors will never be allowed to get their hands on those documents, no way.

Because Michael Cohen is not just any lawyer, he is and has been a personal attorney to Donald Trump, president of the United States. This issue of what was seized from Michael Cohen in this raid, it has been a matter of very urgent concern for the president himself. You might remember his initial freak-out when we got word that Cohen`s office and home had been raided. This was the president`s immediate online response. Quote: attorney-client privilege is dead!

I mean, it is hard to overstate the potential importance of this in terms of the president`s personal legal jeopardy, right? Michael Cohen for years was an executive at Trump Organization. Mr. Cohen was involved directly in everything from threatening reporters who were writing unfavorable news articles about Mr. Trump to organizing secret payments to women who said they had affairs with Mr. Trump.

He was involved in secretly trying to develop a Trump Tower Moscow during the presidential campaign, including personally reaching out to the Kremlin for assistance with that project. He was involved during the presidential transition in a secret effort involving a pro-Russian Ukrainian lawmaker to pitch a secret plan to drop U.S. sanctions on Russia.

He brought a Russian oligarch to the inauguration. And then appears to have received a million-dollar contract and hundreds of thousands of dollars in unexplained payments from interests related to that Russian oligarch starting around the time that Trump took office. And we don`t know exactly why Mr. Cohen has now become the subject of a federal criminal investigation led by prosecutors in the Southern District of New York, but he has.

And we know that as part of that investigation, multiple search warrants were issued for multiple premises controlled by Michael Cohen and federal agents and prosecutors acting on those search warrants, they came in and took it all. They took everything.

They took a dozen electronic devices and computers. They took boxes and boxes and boxes of hard copy documents. They took what they were looking for. They took it all.

And really, the only line of defense against prosecutors going through that material was this claim from Michael Cohen and from the president, of attorney-client privilege. Thousands of documents -- no, not thousands. Millions of these documents that were seized would be shielded from prosecutors because of attorney-client privilege.

The president`s outrage, attorney-client privilege is dead. Well, now we know because this has now been adjudicated and it turns out in this case, attorney-client privilege is not dead. It`s just not particularly relevant to the Michael Cohen case.

A court appointed a special master, a highly respected former judge, to review the documents that were seized from Michael Cohen. Today, that special master issued her first report as to how many of these documents actually will be kept from prosecutors because they really do reflect actual legal work being done by Cohen as an attorney and they should therefore be treated as confidential.

Here`s what she found. When it comes to the, quote, contents of eight boxes of hard copy materials, which means actual paper, quote, out of 639 total items consisting of 12,543 pages, the special master finds that 14 items are privileged and/or partially privileged. The special master also finds that three items are not privileged.

We`re not exactly sure what that means. We think that might mean that Michael Cohen tried to say there were three other things that were privileged, the special master reviewed them and said no, they`re not. But in any case, out of 639 items, hard copy documents, only 14 are privileged. That means of all the hard copy documents seized by federal agents from Michael Cohen, prosecutors are going to be able to look at 98 percent of them.

But there`s more. The special master has also reviewed the contents of two of Michael Cohen`s phones and an iPad. Those represent a lot of other items. Out of 291,770 total items, the special master finds that 138 items are privileged and/or partially privileged and seven items are highly personal.

The special master had previously explained what she would, in addition to protecting things that are attorney-client privilege, she would also protect things like medical records from Michael Cohen`s family, anything else that was not necessarily attorney-client privilege specific, but it`s stuff that should be kept from prosecutors purely on the basis of privacy. You add those two things together, and that`s another 155 privileged or highly personal items out of nearly 300,000 items that they got off those devices.

So, in that case, in terms of electronic items from Michael Cohen`s phones and his iPad, prosecutors are going to get to look at more than 99-1/2 percent of those items that they seized -- 98 percent of the hard copy docs, 99-1/2 percent of the electronic docs.

If there is anything the president has to worry about in terms of his relationship and his working history with Michael Cohen over the years, any plan that he and Michael Cohen might have had, that they were going to rely on attorney-client privilege to keep all the relevant materials out of the hands of prosecutors, that appears to have been poor planning. If there is anything in those documents for Michael Cohen to worry about or the president to worry about, they are going to need something else to rely on.

Today`s June 4th. By June 15th, which is a week from Friday, end of next week, the judge in the Michael Cohen case has ordered that this entire review process, all the stuff seized from Michael Cohen, it has to be over and done with.

This first report from the special master tonight indicates that as they`re going through these materials, they`re finding almost nothing that can be held back on the grounds of attorney-client privilege. Prosecutors are getting basically all of it. And so, tick-tock.

This is very bad news for Michael Cohen. Both in terms of what he was obviously counting on to protect him in this process. That`s not working out.

But also the speed at which this is unfolding in federal court. His lawyers have been trying to slow this down, slow this down, don`t let prosecutors get this stuff yet, slow it down. The judge said no, it`s all going by the end of next week.

Because of the kind of relationship Michael Cohen had with his main client, Donald Trump, it`s probably also the case that this is bad news for the president as well.

And I know there`s a lot going on in the news. And I know there`s a lot of deliberate outrage being created all the time. But focus on this Cohen case and the threat that it poses to this president.

As this very quick time frame and this sort of dire legal circumstance for Michael Cohen has come into focus over the past few days. That is when we have seen the sudden increase in the discussion of pardons from the president and his legal team. When the court first set that June 15th deadline by which all the evidence will be handed over to prosecutors, that`s when the president started talking about maybe pardoning Rod Blagojevich, the Democratic governor of Illinois who tried to sell Barack Obama`s Senate seat. He started talking about maybe pardoning Martha Stewart. Hey, she was on "The Apprentice" too.

The president did go ahead and issue a pardon to a conservative commentator last week. A sort of conspiracy theorist, provocateur, frequent Fox News guest, who was prosecuted not that long ago by federal prosecutors in the Southern District of New York, where Michael Cohen is being prosecuted.

Mr. Dinesh D`Souza was prosecuted for a campaign finance violation which he admitted to. He apologized for. He`s never sought a pardon in conjunction with that conviction.

But nevertheless, the president issued that pardon last week to Dinesh D`Souza and it may have just been a wild hair on the president`s part. But strategically, it seems timed for the president to show off how aggressively he could flout norms and traditions for how presidents issue pardons, and why they do it and to whom.

Because Mr. D`Souza is a conservative media figure, that pardon also seemed designed to kind of wire the president`s Fox News base that they should cheer for his pardons, particularly ones that seem shocking or outrageous or even radical to anybody operating from a mainstream perspective or in terms of legal precedent.

The president kept that up today with his online declaration this morning that, of course, everybody believes that he can pardon himself as president. Almost nobody actually believes that the president can pardon himself. There`s one controlling legal finding on that question from within the government. It was issued by the Justice Department`s Office of Legal Counsel in August 1974, right before Richard Nixon resigned. That OLC memo concluded that it doesn`t appear that the president has the right to pardon himself.

But President Trump making this public declaration to the contrary today. This feels like part of a strategy. He is -- he is priming us for something about pardons, right?

He is not just pushing the envelope in terms of what the American public expects from this president on pardons. He`s setting the envelope on fire. He`s trying to eliminate all expectations of normalcy or legal precedent or even any basic ethics around the president`s use of the power to pardon.

And in the midst of this public effort by the president to kind of desensitize us around pardons, to convince us all that anything is possible when it comes to him pardoning anyone he wants, in the midst of this public campaign to numb us to what he might do with the pardon power, to sort of get our outrage expressed already about this, so that nothing surprises us. In the midst of that public campaign by the president this weekend, "The New York Times" miraculously obtained two long letters that were sent by the president`s lawyers to special counsel Robert Mueller. One was sent last summer. One was sent earlier this year in January.

And among lots of other things, both of these letters make the same argument in legalese, that President Trump has been making publicly in all capital letters on Twitter for the past few days, ever since the Michael Cohen case took a turn for the dire. Just as the president is now publicly asserting an unequivocal absolute right to pardon anyone and everyone for any reason, no matter how outrageous or craven or partisan, the president`s lawyers in letters to Robert Mueller have asserted that the president effectively has the option of ending the whole Russia investigation whenever he wants, in part by use of his pardon power.

The president`s lawyers arguing to Robert Mueller that Trump can`t be prosecuted for obstruction of justice. No matter what he does, no matter what crimes he commits. Because as head of the executive branch, he can end any investigation he wants, he can use the pardon power to save anyone from prosecution.

Quote: It remains our position that the president`s actions here by virtue of his position as the chief law enforcement officer could neither -- excuse me -- could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself. He could if he wished terminate the inquiry or even exercise his power to pardon if he so desired.

So, we should see this as all of a piece, all over the last few days. The Michael Cohen case really is about to blow up, in very short order for Michael Cohen and possibly for the president too. They`re getting 98 percent, 99 percent, 99-1/2 percent of the documents that were seized from Cohen`s home and office and hotel room and safety deposit box. It`s not working to try to shield those documents from prosecutors with this attorney-client privilege claim. And prosecutors are going to get all of those documents by the end of next week.

As that has come into focus, just over the past few days, the president has started talking about pardoning people willy-nilly. He issued this deliberately outrageous, I believe, partisan-inflected pardon. Also, somehow, a previously secret argument from his legal team was released to the press, which makes clear that they think the president can use his pardon power to make this whole investigation go away. And that is obviously a very radical assertion by the president.

But there`s one way in which I`m not sure if they have thought this through. Just like they thought attorney-client privilege would be enough with the Michael Cohen case, they thought that would be their get-out-of- jail-free card in terms of the evidence collected from Michael Cohen`s home and office and it`s just not turning out that way, I think in this case, rushing right to the president`s pardon authority as their radical get-out- of-jail-free card, I think it may not end up working that way for them.

And here`s one specific reason why. This letter that "The New York Times" obtained this weekend, it was sent to Robert Mueller -- we`re told it was hand-delivered to Robert Mueller by Trump`s lawyers in January. What did Robert Mueller and the special counsel`s office do after they received this letter?

Well, in fact, shortly after this letter from the president`s lawyers was delivered to Robert Mueller, Robert Mueller did in fact do something that we could all see in public. Just a few weeks after receiving this letter from Trump`s lawyers, Robert Mueller unleashed a surprised. A surprise.

He unsealed what was a big surprise indictment that nobody saw coming. The only time we ever see Mueller act in public is when he indicts somebody, right? Well, before this letter went to Mueller`s office in January, before then we`d seen Mueller indict Trump`s campaign manager -- campaign chair, Paul Manafort, and his deputy campaign chair, Rick Gates.

We`d seen a guilty plea from this Papadopoulos guy who had also worked on the campaign. And from Mike Flynn, who had worked on the campaign and been national security adviser. All knowable if not Googleable people involved directly in the Trump campaign.

But then after Mueller got this letter from Trump`s lawyers in January, what`s the next thing Mueller did? He indicted Mikhail Bystrov, Mikhail Burchik, Aleksandra Krylova, Anna Bogacheva, Sergey Polozov, Maria Bovda, Robert Bovda, Dzheykhun Ogly, Ovlanov Jehon (ph), Vadim Podkopaev, Gleb Vasilchenko, Irina Kaverzina, and Vladimir Venkov, Evgeny Prigozhin, the Internet Research Agency, Concord Management, Concord Catering.

Who the heck are those people? Thirteen individual and three corporate defendants all in Russia, all indicted by Robert Mueller. And it was a surprise at the time, in February. In some ways, it still feels surprising.

I mean, immediately there were two big reactions, right? One was wow, this is a sweeping indictment. It`s what they call a speaking indictment. Look at how this lays out what Russia did in terms of interfering with our election. Indictment was this great piece of storytelling in terms of this crime that had allegedly been committed against the United States.

But then there`s the practical legal analysis. Why bring this indictment against all these Russians? None of these people are ever going to end up stepping foot in a U.S. courtroom. Russia`s never going extradite these people to the U.S. How will this indictment ever serve justice?

Then, that indictment soon seemed not just surprising and maybe a little odd. It ultimately ended up seeming like it was maybe a little risky. When one of the entities that was sued, Concord management, actually ended up hiring aggressive American attorneys to represent them in court. And that has resulted in some dramatic hearings where the lawyers for this Russian entity have demanded reams of U.S. government documents as part of this court case.

The discovery process in this case has forced the government, forced prosecutors to hand over information on decades` worth of U.S. foreign policy toward Russia. It`s made some observers wonder if maybe it wasn`t worth it to bring this case, if there might be some national security risk to the U.S. government in terms of having to hand over all of this stuff.

There have been some I think expectations, suggestions and indeed expectations that maybe Mueller`s prosecutors might decide to drop the charges against the Russian corporate entities, maybe even against the Russian individuals, maybe this is more trouble than it`s worth, these people aren`t going to get convicted anyway, with the discovery process going this way, maybe it`s dangerous, maybe drop it.

Mueller`s prosecutors have not dropped it. They have not let it go. They`re fighting it out all the time in court. We just got a new filing on Friday night.

Quote, on February 16th, a federal grand jury returned an eight-count indictment against 13 individuals and three corporate defendants alleging they engaged in a multi-year conspiracy operating out of Russia to defraud the United States by impairing, obstructing and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes including the presidential election of 2016.

Prosecutors went on: the conspiracy included a Russian organization that conducted what it called information warfare against the United States to spread distrust toward the candidates in the 2016 election.

Prosecutors go on to explain in this file on Friday night, quote: the essential elements of the conspiracy to defraud the United States consists of the following. Two or more persons formed an agreement to defraud the U.S. The defendant knowingly participated in the conspiracy with the intent to defraud the U.S. And at least one overt act was committed in furtherance of the common scheme.

So, they`re continuing to fight this out. They`re continuing to prosecute those Russians, even though it`s turned into sort of a complicated thing, there`s questions about whether those Russians will ever be in a U.S. courtroom.

Well, now we have a whole new window into this part of the Mueller case. We know that this conspiracy case against all these Russian defendants was filed by Robert Mueller and his prosecutors just a couple of weeks after they were notified in writing by the president`s lawyers that the president believed he could bring this whole inquiry to an end by the use of his pardon power.

Think about how that might work, right? Let`s say the president decides he wants to make the whole Russia scandal go away, make the whole Russia investigation go away, by pardoning everybody that has anything to do with it. Let`s say the president pardons Donald Trump Jr. and he pardons Paul Manafort and he pardons Rick Gates and Carter Page and George Papadopoulos and Jared Kushner and Brad Parscale and Mike Flynn and Steve Bannon and Ivanka, everybody gets pardoned, everybody.

Look under your seat. You`ve got a pardon. You`ve got a pardon. Everybody gets pardoned. Would it be weirder to give Dinesh D`Souza a pardon than Don Jr., right?

He`s banking on you thinking it`s all equally outrageous. Give everybody a pardon, let`s just move on. Let`s say he does that, everybody gets pardoned. Maybe he even finds some magic wand somewhere that allows him to think he can pardon himself, tries it out. Sure.

Thanks to that February indictment against all those Russians, there would still be a major problem for the president and for anybody else involved in the Russia scandal, because those 13 Russian individuals and three Russian corporate defendants, they are on trial for conspiracy against the United States. If all those people I just listed, Don Jr. and Flynn and other -- if they were all pardoned, Mueller would still be prosecuting this case against all these Russians, this conspiracy case. As part of this case alone, Mueller and his team can pursue everybody who might have been involved in this alleged criminal conspiracy. Which means even if they`re all officially pardoned, they can all end up named as co-conspirators in any superseding indictments or any court proceedings that derive from this case, up to and including the president himself.

The only way the president could avoid that, the only way the president could avoid having Mueller continue to investigate, having the whole criminal conspiracy laid out for the American people is if in addition to pardoning Don Jr., Paul Manafort, Carter Page, George Papadopoulos, Jared, Mike Flynn, himself, if in addition to all of those pardons, the real way he could only make this go away through his pardon power is that he would also have to pardon all of the Russians in this indictment. He would also have to pardon Alexandra and Anna and Sergei and Evgeny and Irina and Vladimir.

Otherwise, the prosecution of those Russia defendants goes ahead, including all of the investigative work to pursue everybody involved in that conspiracy.

If all of this discussion over these last few days about pardons seems desperate, it seems kind of like end game stuff from the White House, you are right to perceive it that way. But if the president is planning on using his pardon power to try to end the Russia investigation and shut this thing down, he really will have to pardon not only everybody involved in the scandal in the United States. He will have to pardon all the Russians too.

And however much he is trying to desensitize the American people to what he might do with the pardon power, there is not enough desensitization in the world to get American people ready for him pardoning the Russians. Right? Right? That can`t be the plan, can it?

June 15th is next Friday. June 15th is when Michael Cohen gets the hook. This is all going to happen very fast.

Stay with us.


MADDOW: So as I mentioned at the top of the show tonight, we do have some late-breaking news that`s just coming into existence as we`re getting on the air this hour. The special counsel has just filed a motion tonight in federal court in Washington, D.C., where Trump`s campaign chair Paul Manafort is awaiting trial on multiple felony charges, from bank fraud to money laundering, to failure to register as a foreign lobbyist.

Paul Manafort`s trial is set to begin in Virginia this summer. His D.C. trial is set to begin in September. He`s been out on bail. Basically, he`s been on sort of a version of house arrest, waiting for those trials to start.

But tonight in this filing, Robert Mueller, the special counsel`s office, has told the court that Paul Manafort has violated the conditions of his release. According to special counsel`s office, Manafort has attempted to tamper with potential witnesses for his upcoming trial. The prosecutors are alleging in this filing that after he was hit with a second round of indictments in February, Manafort appears to have contacted former business associates, people who may have been party to some of the activity that the special counsel has been investigating and the special counsel has charged against him. These are potential witnesses in the Mueller investigation or for Manafort`s trial.

According to prosecutors tonight, Manafort contacted those witnesses by phone and also by using an encrypted messaging service. They have filed as an exhibit along with their filing tonight, a log of the phone calls that were made by Manafort and on his behalf and the messages that he sent. According to prosecutors, one witness Manafort allegedly contacted has told the special counsel that at least from the witness`s point of view, these calls and messages from Manafort were clearly an effort by Manafort to, quote, suborn perjury, essentially to coach these other people to falsely answer questions from special counsel in order to help Manafort`s case.

So, prosecutors in the surprise filing tonight, they say this behavior from Manafort, it violates the terms of his release. They`re asking the judge to revise the terms on which he has been released or to revoke those terms entirely. In plain English, that means what prosecutors are asking this judge for tonight, the judge in the Paul Manafort case, is they`re asking the judge to consider revoking Manafort`s bail. They`re asking the judge to consider putting Paul Manafort in jail while he awaits trial.

Now, we`ve had no immediate comment tonight from Manafort`s legal team on this bombshell request from the special counsel. We have just been advised that this filing has been filed in the federal court in Washington. We`ve also just found out that in the federal court in Virginia where Manafort has also been charged, the judge in that case has also been advised of these allegations of witness tampering by Manafort tonight.

Again, we haven`t heard anything in response from Manafort`s own counsel. But this is a big deal. And we`re going to have some expert help figuring this out next. Stay with us.


MADDOW: As we`re continuing to make our way through this new motion tonight that`s just been filed by the special counsel`s office, essentially asking the court to consider jailing Trump campaign chair Paul Manafort while he awaits trial. He has been out on highly -- what do they call it? They call it high intensity supervision, which means house arrest. But now, prosecutors say since he`s been out on house arrest, he`s attempted to tamper with potential witnesses in the case.

I`ll just read you a little bit of a lead from the filing. This is the government`s motion to revoke defendant Paul Manafort`s current order of pretrial release: The United States of America by and through special counsel Robert Mueller hereby moves the court to revoke or revise the current order authorizing the release of defendant Paul Manafort from the high-intensity supervision program. The evidence set forth below establishes probable cause to believe that Manafort attempted to tamper with potential witnesses while on pretrial release.

The tampering appears to be Manafort contacting people who had some contact with persons related to an element of illegal foreign lobbying that Manafort was charged with. According to this filing tonight, Manafort repeatedly contacted two persons in an effort to secure materially false testimony concerning one of the charged activities in his indictment. Now, prosecutors have released a number of -- well, attachments, exhibits with this filing, including -- show me on camera for a second.

This is one of the attachments they`ve just released. It`s an e-mail. As you can see, there`s the e-mail. Everything redacted. And there`s a second page. Everything redacted. And there`s the third page, also redacted.

That`s one of the exhibits. Some of the exhibits are more illuminating than others.

Joining us now to try to make sense of this and its seriousness is Josh Gerstein, who`s a senior reporter for "Politico" who covers the Justice Department and the courts.

Mr. Gerstein, I know you`ve been speed-reading this stuff as it`s come in tonight just as we have. What`s your reaction to this filing and the seriousness for Paul Manafort?

JOSH GERSTEIN, SENIOR WHITE HOUSE REPORTER, POLITICO: It could be pretty big trouble for Manafort. I mean, as you mentioned earlier, the government`s claiming yet another statute was violated here, that this could amount to witness tampering. So we could see a potential re- indictment of him probably in the Washington case but it could be in the Virginia case as well since he has two cases pending.

But the big problem for him is it may undermine this effort he`s been making for seven or eight months now to get somewhat looser bail conditions that allow him to move around more freely than basically the house arrest that you were talking about before. But it is some pretty reckless behavior by Manafort if you believe the prosecutors` allegations. Why he would be in communication with people other than his lawyers to talk about this case at this point given the trouble he`s gotten into before on this front is fairly flabbergasting.

Maybe he`s bored being cooped up there at home in Alexandria.

MADDOW: Well, josh, in terms of the logistics here, just looking at, for example, the log of texts and phone calls and WhatsApp messages that was filed along here, one of the things that strikes me, and maybe I`m just naive in looking at this, but it seems like a lot of the communications that they`re highlighting as potentially problematic, as potential witness tampering, aren`t very recent. They aren`t things that happened this month. They`re things that are dated back to February, very shortly after the superseding indictment against him was filed.

Is there any suggestion that there`s something that has urgently prodded the government into making this filing now, or is this something they might have been sit on against Manafort for a while and then just elected to pursue this now for some reason that we don`t know?

GERSTEIN: Well, they may have had some of this information back in February. It looks like what triggered these contacts was that superseding indictment. It made a series of allegations about something calls the Hapsburg Group which appears to have consisted primarily of former Italian Prime Minister Romano Prodi and a former Austrian chancellor by the name of Alfred Gusenbauer.

And they were basically, if you believe the charges, contracted by Manafort to do lobbying on issues in Ukraine in favor of Romano Prodi and a former Austrian chancellor by the name of Alfred Gusenbauer. And they were basically, if you believe the charges, contracted by Manafort to do lobbying on issues in Ukraine in favor of the then-president of Ukraine.

And there`s -- the issue that Manafort seems to have been pushing that led to this alleged tampering is the question of were they just trying to influence sort of European public opinion, maybe global public opinion, or was there specifically a U.S. focus? And the prosecutors claim Manafort was sending a signal to these individuals who were involved with that Hapsburg group that they should say this is a European-focused operation, it wasn`t about the U.S.

In terms of the timing, there are some hints that some of this information the prosecutors are saying they just got recently when they brought out that information about the Hapsburg Group that sometime I think around may they got text messages from some of the PR people working in that effort with those two European leaders. And it seems like some of this information maybe the prosecutors couldn`t get through surveillance or subpoenas and actually got by sort of being voluntarily provided to them by these people working with those European or ex-European officials.

So, that`s something in the timeline of these documents which we`re still going through.

MADDOW: And, Josh, just briefly as somebody who`s covered proceedings like this for a long time, we don`t have any response from Manafort`s legal team tonight. We have been told that the judge in the Virginia case has been alerted to the prosecutors` actions, that they`ve made this motion in the D.C. case.

How quickly would you expect the judge to act on something like this?

GERSTEIN: I would think pretty quickly. I mean, it`s still unclear whether Manafort`s request to loosen his bail conditions has been fully approved by the judge. And remember, as you`re saying, we have two different judges here. So, it`s really a tough needle for Manafort`s team to thread.

I would think within a matter of a couple of days, we could have a hearing here because judges usually tell defendants at the outset of any case, you know, one of the key conditions of being released from custody is that you may not contact witnesses in this case, if you need to do that, you have to go through their attorneys. And I think Manafort`s going to have to explain what happened here.

MADDOW: Josh Gerstein, senior reporter at, covering the Justice Department and the courts -- thank you, Mr. Gerstein. I really appreciate it.

GERSTEIN: Sure, Rachel. Anytime. Take care.

MADDOW: Think from the president`s perspective here for a second. His personal attorney Michael Cohen is looking down the barrel of prosecutors getting everything that was seized from his office and his home at the end of next week. His campaign chair, who was the one U.S. citizen who has been charged in this case who has not pled guilty or started cooperating with prosecutors or both, is now looking at going to jail. Jail, actual jail right away.

Those two key figures in this Russia scandal are under incredible pressure right now. And the president is right behind both of them. Anything might happen.

We`ll be right back.


MADDOW: Senator Jeff Merkley is a Democrat from Oregon, but he spent his Sunday in Texas. While he was there, he spent some of that time getting written up by police in the parking lot of what used to be a Walmart supercenter. That former Walmart now officially operates as a shelter for kids who came across the border on their own and were picked up by U.S. authorities.

But Senator Merkley said he heard the facility was also being used to house kids who didn`t come over the border alone, they came over with their families but then the U.S. government forcibly took them away from their parents. The Trump administration announced a few weeks ago the new U.S. policy of forcibly separating parents and children if they were caught crossing the border without documents.

Well, since then Senator Merkley said some of those kids forcibly taken away from their parents might have ended up here. He said he learned that the facility has about 1,000 kids locked up inside, in this old Walmart in Brownsville, Texas. He says his office contacted the contractor that`s running that facility as well as the Office of Refugee Resettlement, which is technically responsible for it. He wanted to schedule a tour of the facility.

When his office was told no, Senator Merkley went down there anyway.


SEN. JEFF MERKLEY (D), OREGON: Might as well keep seeing if anybody inside will answer. Yes, hello there. Yes, this is U.S. Senator Jeff Merkley. And I`m here at the Casa de Padres facility for the children.

I called -- my team called last week to arrange for me to be able to come and visit this facility. Can you please get me a tour of it?


MERKLEY: Yes. Can you get me a tour of the facility? I`m standing out front right now.

Hello, officers. Senator Jeff Merkley.

UNIDENTIFIED MALE: How are you doing?

MERKLEY: Good. Good. I called the number here on this sign and the young lady said the supervisor would be very happy to come out and talk to you. The conversation that was indicated is going to be very short, that they can`t make a statement.

And so, therefore -- I`ve been asked to leave the property but I`m guessing that`s what`s about to happen.

UNIDENTIFIED MALE: Yes. I mean, that`s what they`re going forth. What was your name again, sir? I`m sorry. Senator --

MERKLEY: U.S. Senator Jeff Merkley.

UNIDENTIFIED MALE: Merkley. How do you spell it? I don`t want to misspell it.

MERKLEY: M-e-r --


MERKLEY: Yes. M-e-r-k-l-e-y.

UNIDENTIFIED MALE: K-l-e-y. And your date of birth, sir?

MERKLEY: Yes. It`s October 24th.


MERKLEY: Twenty-fourth, 1956.

UNIDENTIFIED MALE: 1956. You said you`re a U.S. senator.

MERKLEY: I`m a U.S. senator.


MADDOW: Senator Merkley was in fact asked to leave the property.

And it seemed like he kind of figured that would be the case. But in so doing he found a way to show the public how the Trump administration is going to great lengths to keep the public, to keep members of Congress even from seeing exactly what they`re doing here.

Ever since announcing this policy to take kids away from their parents, the president, it`s interesting -- instead of boasting about it like does about other things that people find outrageous, he`s avoided talking about it at all. When he has talked about it, he has tried to blame Democrats for this policy.

We reached out to the department of health and human services today to ask about this facility that Senator Merkley tried to get into yesterday. They told us that no one arriving unannounced at a shelter will be permitted access to the children in their case, quote: even those claiming to be U.S. senators.

Jeff Merkley is actually a U.S. senator. But you know, taking kids away from their parents, that`s fine.

Senator Merkley says he was granted access to a processing center over the weekend in McAllen, Texas. He says in that facility he saw hundreds of kids who were being kept in cages.

Joining us next is somebody who has been fighting this new Trump policy in the courts. Stay with us.


MADDOW: Ever since the Trump administration announced this new policy a few weeks ago in which the U.S. government will take children away from their parents if their parents can`t provide paperwork at the border, there`s been an outcry from the public and now also from members of Congress, acting what exactly that policy looks like in real life, where these kids are being held under what conditions and how these families are being reunited, if they are, by government that is forcibly tearing them apart.

Joining us now is Lee Gelernt. He`s deputy director at the national immigrant rights project at the ACLU.

Mr. Gelernt, thank you very much.


So, Jeff Merkley going to Texas this weekend put a spotlight on this because we don`t know how these kids are being held, the circumstances which they`re being held and whether the families are being separated permanently, do you know?

GELERNT: Right. They`re being separated and it`s going go on for months and months and sometimes, the parent will be deported and the kid left behind.

It`s as bad as you can get. But the one thing I do want to emphasize is, the issue is ultimately not the conditions where these kids are being sent. These nonprofits are doing the best they can, but they weren`t set up to house hundreds and hundreds of little kids. And so, they`re doing what they can do.

The real damage is coming from the separation itself. We put an enormous medical testimony saying that when a child is ripped away from their parent and it`s so fearful that they may never say their parents again, that`s the real damage. You could make the detention center as good as you want. But the damage is going to come from the separation.

MADDOW: Well, viscerally, everybody who`s ever either had a child or been a child knows that to be the case.

GELERNT: Exactly. And so, what the medical people say where you get your strength as a child is you feel like at 3 years old, 4 years old, you feel like your parents can protect you from the outside world. When you see your parents powerless to protect you, that lasts a lifetime, you`re always going to feel vulnerable.

That`s what the doctors are saying. So, this is permanent damage to what you`re doing to these little kids.

MADDOW: How many kids have been taken away from their parents?

GELERNT: When we filed the lawsuit, it was 700. Now, it`s, you know, veering into almost 2,000, I would say. And there`s no end in sight. Every day, children are being taken away.

MADDOW: And in terms of the facilities in which they`re being held, I take your point as to what, even if these are the greatest facilities on earth, they`re still -- the damage is done, the trauma is still inflicted.

GELERNT: Right, right.

MADDOW: But are there facilities like Senator Merkley alleged this weekend in which there`s upwards of 1,000 kids that are being held?

GELERNT: There are. And that`s highly unfortunate.

And I think, you know, the quality varies across the board. And so, there are some detention centers that are really bad. There are some that are better.

We`re not really set up -- the government is not set up to house thousands of little children. It used to be that this center housed older teenagers who genuinely needed a place to go because they came without their parents. Now, we`re ripping the kids away, two years old, three years old, and sending them to detention centers. There`s no way these centers can handle these kids. It`s becoming --

MADDOW: And it`s indefinite because it`s not like they`ve been -- it`s not some 2-year-old has been sentenced to something and then gets out on good behavior. This is an indefinite detention.

GELERNT: Exactly. So, we`re hoping a client is reunited this week, maybe even tomorrow, but it`s been 8-1/2 months already. I mean --

MADDOW: Your client is a mother who`s been separated from her child for 8 1/2 months?

GELERNT: Right. And we`re hoping -- I mean, this is the first time I`m saying this publicly on TV or anywhere, we are hoping it happens tomorrow morning.

MADDOW: How old is her child?

GELERNT: Her child is 14, and she hasn`t seen him in 8-1/2 months. I mean, it`s just horrendous. And it`s just constant, so many kids. I think people just at night need to say, I`m not sure what I think about the larger immigration debates, but I don`t want to go to sleep thinking about a 2-year-old or a 3-year-old all by themselves in a government facility. It`s horrendous.

MADDOW: Lee Gelernt is the deputy director of the National Immigrant Rights Project at the ACLU. ACLU has put an incredible window on this. Obviously, members of Congress, including Senator Merkley trying to do so even more.

Please keep us apprised. Let us know what happens tomorrow with your client.

GELERNT: I will. Thank you, Rachel.

MADDOW: Thanks, Lee. Appreciate it.

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


MADDOW: Programming note. I`m very sorry you have to cancel your plans for tomorrow night. But it`s for an interesting reason.

Tomorrow is election day. There are primaries for important races in eight different states. Alabama, New Jersey, Iowa, Mississippi, Montana, New Mexico, South Dakota and California.

California races tomorrow are huge. Democrats are trying to flip 25 seats to take back the House in November. In California, there are seven districts where Clinton won but Republicans hold the seats, which means tomorrow night`s primaries in California are going to be hugely important for the entire country and they`re going to be fascinating to watch. We`re going to be here with results all night long. So, I`m sorry. You have to cancel your plans, but the good news is we`ll all be together here.

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

Now, it`s time for "THE LAST WORD" with Ali Velshi, sitting in tonight for Lawrence.

Good evening, Ali.



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