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Kennedy retirement sparks battle over replacement. TRANSCRIPT: 06/29/2018. The Rachel Maddow Show

Guests: Cory Booker, Alonzo Pena

Show: THE RACHEL MADDOW SHOW Date: June 29, 2018 Guest: Cory Booker, Alonzo Pena

RACHEL MADDOW, MSNBC HOST: And thanks to you at home for joining us this hour. Happy Friday.

It is going to be a big newsy weekend. I have to let you know. We are expecting large-scale demonstrations and a lot of them all over the country.

There`s going to be at least one demonstration in every state in the country tomorrow. And most states are going to have multiple demonstrations. We`re expecting a particularly large one in Washington, D.C.

All of those coordinated demonstrations. We think there will be more than 700 of them, are all in opposition to the Trump administration`s policy of separating kids from their parents. Now, there have been a whole bunch of developments on the story of the Trump administration separating kids from their parents just in today`s news, including a big scoop on that subject from NBC News and a whole bunch of officials who actually work at ICE who are currently employed at Immigrations and Customs Enforcement, coming out with a surprising public statement on this issue. We`re going to have more coverage on that over the course of this hour.

I also need to tell you, we`ve got Senator Cory Booker here tonight live and in person. Very much looking forward to talking with him.

Senator Booker has begun making a forceful case in the U.S. Senate that now that Supreme Court Justice Anthony Kennedy has announced his retirement from the court, according to Senator Booker, there are real conflict of interest issues that ought to constrain what happens next here in terms of that Supreme Court vacancy. No president has ever made an appointment to the U.S. Supreme Court when he and his campaign were the subject of an ongoing serious FBI counterintelligence investigation, if the president himself ends up personally criminally implicated in that ongoing investigation, which is not an insane prospect. I mean, the president`s campaign manager is about to go on trial next month in federal court in Virginia on multiple serious felony charges.

I mean, if that case or any of the other ongoing elements of this investigation end up personally criminally implicating the president, that will instantly call the into question a whole bunch of legal and constitutional issues that have never been formally settled by the Supreme Court.

Can a sitting president be compelled to testify if you give him a grand jury subpoena? That is not settled as a matter of constitutional law.

Can a sitting president be indicted? That is not settled as a matter of constitutional law.

Can a sitting president pardon other people for the expressed purpose of derailing a case against himself or members of his own family? That is not the sort of thing that`s ever definitively come up in federal court. If that possibility arose in relation to this scandal, the Supreme Court would likely have to settle that matter.

Can a president pardon himself while he`s continuing to serve as president? On that one, I mean, the president says on Twitter he can. But that doesn`t count as binding precedent yet. If the president actually tried to do that, the Supreme Court would likely have to decide if that is kosher.

If there ends up being a criminal case against the president and if it is serious enough that he tries to invoke one of these never before used, heretofore, hypothetical get-out-of-jail-free cards, well, then who`s on the Supreme Court and how they view these unsettled matters will become a sort of life and death issue for this moment in American democracy.

So, can the president appoint someone to fill a seat on the Supreme Court while this investigation is still open and ongoing? And just to show this is not some esoteric concern, consider that one of the candidates the president says he`s considering, actually the guy who`s considered by most observers to be at the top of the short list, the guy who is considered by most people to be the most likely nominee, is a judge on the D.C. Circuit named Brett Kavanaugh.

Judge Kavanaugh has written explicitly about whether or not a sitting president can be indicted. He has expressed in writing that the indictment of a sitting president would, quote, cripple the federal government, rendering it unable to function. And you know, that`s interesting from Judge Kavanaugh, right? As an abstract point of argument, it might be a fun thing to chew over with him on the law review or whatever, you know?

But it`s another thing entirely that he is being considered for the Supreme Court by a president whose campaign manager is on trial, whose deputy campaign manager and national security adviser and foreign policy adviser from the campaign are all awaiting sentencing and cooperating with prosecutors in this ongoing FBI counterintelligence investigation. I mean, no president has ever picked a Supreme Court nominee when looking down the barrel of this specific kind of personal potential criminal liability for himself.

Senator Cory Booker says a Supreme Court nomination under these circumstances shouldn`t happen just as a simple matter of legal conflict of interest. Senator Booker will be here in just a moment to make his case on that point.

But in terms of how long this is a live issue, how long this is going to go on, the president told reporters today he`s going to start meeting with Supreme Court candidates this weekend. He`s decamping to one of his golf courses for the weekend and he`s going to meet with Supreme Court nominees, potential Supreme Court nominees. He says he expects to make an announcement on who he`s going to pick for the court in a week and a half, which is very fast. Why the rush?

Lots of reasons presumably, but to the extent the special counsel`s investigation and the wait president`s own fate might end up in the hands of this Supreme Court nominee he is picking, well, we got a bunch more news today about the pace at which these legal proceedings are folding.

Trump national security adviser Mike Flynn pled guilty last year in December. Today, the prosecutors in the Flynn case and Flynn`s defense lawyers said in a joint filing that yet again, they are still not ready to wrap up his case. They`re still not ready to end the legal proceedings involving Mike Flynn. And that`s because when Flynn pled guilty his guilty plea and his agreement to cooperate with prosecutors in their ongoing investigation, those two things were linked, right? The guilty plea and the cooperation deal.

Mike Flynn did plead guilty. So he is expecting some form of punishment from the court. But how much punishment he gets will depend almost entirely on how much he helps prosecutors in the meantime. So, this filing today from Flynn`s lawyers and prosecutors suggests that even now, seven months after he pled guilty and started to cooperate, it suggests that Flynn is even now still helping prosecutors with their work. So, they`re asking for another two-month extension before they start to wrap up Flynn`s case.

Quote: On May 3rd, 2018 the court ordered the parties to file a joint status report by no later than June 29th, 2018, which is today. Due to the status of the special counsel`s investigation, the parties done believe that this matter is ready to be scheduled for a sentencing hearing at this time.

But actually, right below that, though, you can see in the filing they do ask the court that at the end of this 60-day extension they`re asking for, at the end of 60 days, they would like the court to move ahead with a presentencing report for Mike Flynn. And that`s the first baby step toward Mike Flynn finding out what his punishment ultimately will be. It is the first step toward ending the government`s involvement with him here.

We`ve seen how this goes with other defendants, right? A few weeks ago, we saw prosecutors ask the court for a presentencing report on Trump foreign policy adviser George Papadopoulos. Since then we`ve got a sentencing date for George Papadopoulos. He will be sentenced on September 7th.

We don`t yet have a sentencing date for Flynn. We know that it won`t be in the next 60 days, but the very first signs of when Flynn`s case might start to end just came into view today with prosecutors and the defense asking for a presentencing report on him 60 days from now in late August. That`s kind of the pace at which things are rolling with cooperating Mike Flynn.

On the Michael Cohen side, the president`s personal lawyer, that is not being handled in Virginia or D.C. like the other cases. The Michael Cohen situation is being handled in federal court in New York City. Within the last few days, the judge in the Michael Cohen case set a firm deadline of next week by which time all evidentiary issues have to be wrapped up in terms of whether or not prosecutors are going to be able to look at the documents and materials that were seized from Cohen under search warrant back in April.

All the wrangling around those materials that were seized from Michael Cohen, it`s been going on for weeks and months now. But the court says it will be over by next week. Prosecutors in the Southern District of New York next week should have their hands on all of the evidence they`re going to get in terms of what was taken out of Michael Cohen`s files and his office computers.

So, if Michael Cohen is going to be arrested and charged as a result of that evidence, you might expect that that arrest and indictment would happen fairly soon after prosecutors finally nailed down all the evidence. And again, the nailing down of all the evidence will happen before the end of next week. If Michael Cohen is charged he will then have to make a decision in pretty good time about whether or not he`s going to fight the charges and whether he`s going plead guilty and cooperate with prosecutors in ongoing investigations.

So, that`s all coming down the track very fast now when it comes to President Trump`s personal lawyer Michael Cohen. We can see what`s happening with Flynn. We know what`s happening with George Papadopoulos. We can pretty much see what`s happening with Michael Cohen. And then there`s President Trump`s campaign chair Paul Manafort.

Now, we just got in the transcript all marked up and highlighted because I`m a goober. We just got in the transcript just tonight of the court hearing in the Manafort case. Paul Manafort is in jail in Virginia waiting for his trial to formally start next month. Paul Manafort actually had the opportunity to leave jail and travel to court today to be at today`s hearing in person. But he asked permission from the judge to not attend, complaining about the long two-hour trek each way between the jail and the courthouse, which is interesting.

But for whatever reason, Paul Manafort didn`t want to make the trip. He stayed in jail today while his lawyers fought on his behalf. There`s two things that you should know about what happened today at this hearing. One is that it was sort of a landmark moment.

For the first time today at this Paul Manafort hearing, we got a live witness testifying for the prosecution about the special counsel`s case against Manafort. We haven`t had anybody on the stand before answering questions and getting cross-examined on this case. But today, we got that and it was quite revealing.

The other thing you should know about this hearing today, and I say this as a non-lawyer who reads things in a petty way because I`m a catty, small person, is this -- and maybe it doesn`t read this way to lawyers. But reading this transcript for me today, I feel like one of the important things that I`ve learned about this case is that the judge in this case, this is the judge in the eastern district of Virginia, Judge Ellis, this judge is a little bit of an unusual cat. And I know there`s an appropriate way to say that while maintaining appropriate deference and respect for the bench here.

I`m not -- I do not mean to cast aspersions. I`m not saying there`s anything wrong with him. I just mean that reading transcripts of his remarks in court is a little weird. There are very surprising moments.

And that has to affect how the prosecution and defense approaches things in his courtroom. It has to, because it`s -- it strikes me as weird. Let me give you an example. So this is a moment in the transcript. This is a prosecutor from the special counsel`s office, prosecutor named Uzo Asonye (ph), and he`s questioning this live witness. First time we`ve had a live witness on the stand in the special counsel`s investigation, right? He`s questioning this live witness who is an FBI agent, the agent who obtained a search warrant in the Paul Manafort case.

And so this from the transcript, Mr. Asonye, the prosecutor says, question, did Mr. Trusko tell you if Mr. Manafort had previously used that residence to conduct business? FBI agent, he did. Prosecutor, what did he say? FBI agent, he said that Mr. Manafort had used that residence to conduct business.

Question from the prosecutor, after Mr. Trusko told you that he had moved business records into that storage unit, did you ask whether he knew if the records were still in the facility now? And then the judge interjects. And the judge says to the prosecutor, quote, you`re leading. Why don`t you say what if anything did you ask him? The prosecutor says, well, judge, I simply didn`t because the federal rules don`t apply in this type of hearing. Meaning I`m allowed to ask leading questions.

But I can ask it as a more open question if you prefer. The judge says, yes, I would prefer you did that. Go.

And then at that point in the transcript, I won`t read that exact part of it, but at that point the judge just himself starts asking all his own questions to the witness the way he thinks the questions should be asked, demonstrating to the lawyers in the court how he would prefer it to be done more to his taste. And so, then the prosecutor in fact starts asking questions more like that, in a more open-ended way.

And then just a few minutes later in the transcript, they are taking a break because Paul Manafort`s defense counsel has to look at something that`s been introduced into evidence that the defense lawyer hadn`t seen before. So, he asked for a second to look at that, and then this happened.

The defense counsel for Paul Manafort says, may I ask for a moment, your honor? The judge says yes, you may. Paul Manafort`s defense counsel says thank you.

And then the judge says, while he`s doing, that Mr. Asonye, while you`re correct that the rules of evidence don`t apply strictly speaking, as you`ll know from looking at the law, they often are referred to and imposed because they help ensure the reliability of the evidence that`s being presented, and that includes whether leading questions should be asked. Because it`s well known that individuals with a gift as you have, a gift of engaging in verbal atomic footwork, you get a rhythm going and who knows what the witness will agree to. So I prefer to have direct open questions asked. The prosecutor, Mr. Asonye, says, fair enough, your honor.

And then the judge says, you`d be surprised what answers you get. I worked for one lawyer at a law firm when I first arrived. He never asked leading questions, and he had a very successful litigation life and experience. He`s in the great litigation land in the sky now. But he did well while he was here.

Then the judge says, next question. OK. Everyone pick up from here. Before we all end up in the great litigation land in the sky. I didn`t even edit that. That was exactly how it went. Anyway, next question.

I knew a lawyer once who didn`t ask leading questions. He`s dead now. The judge also at one point just seems to get hungry. On page 67 of the transcript, the court, quote, no, just tell me in a sentence. It`s lunchtime.

There`s also this one testy moment. The judge says to the prosecutors, do you have anything further you want to say about that?

And one of the prosecutors, Scott Meisler, rises actually for the first time in the hearing at that point and says, good morning, your honor, if was the defense motion -- and then the judge interrupts and says, it`s not morning, it`s afternoon. And that`s the point that I want you to have. And then the prosecutor says, time flies when you`re having fun. And then the judge says, yes, and even when you`re not.

So the prosecutors and the defense lawyers clearly have to tread a little bit lightly with the testy, hungry, snippy judge here, which I think that is how he likes things in his courtroom. But check out this discussion about leaks. The big picture here is that Paul Manafort`s defense team sort of seems to be running out of steam a little bit. All of their efforts to limit the case, to get the charges thrown out, to get the charges dismissed. They`ve all failed thus far. And they`ve tried a lot of different things.

What they seem to be sort of boiling down to now is a claim that Paul Manafort should be let off the hook because of the amount of information about his case that has been reported in the press. His lawyers are now essentially asserting what a lot of people in political scandals over the years have tried to argue, which is that the intense public interest in his case and all the public reporting that`s being done around his case has resulted essentially in the defendant being tried by leak. That people are so -- they have their minds so made up about him because of all the leaks to the press and all the reporting about it, that he can`t possibly get a fair trial. So the courts have basically let him go.

Paul Manafort`s defense counsel today actually tried a little shy Hail Mary where his defense lawyer actually said the case against Manafort should be dismissed because there have been leaks to the press about the case. Watch the judge shut this down.

Kevin Downing, defense counsel for Paul Manafort. May I be heard, your honor, briefly? The judge, yes. The magic word is briefly.

Mr. Downing, you talked a bit earlier about voir dire, which is questioning potential jurors. You were going to inquire about what people know about the case, the manner in which they`ve heard about it, and whether or not they can be fair and impartial. We`d like to do -- we don`t have to take too much time. But we`d like to do some supplemental briefing with you, your honor, about the nature of the leaks that occurred here.

I mean, we have highest level government officials that have said to the press that Mr. Manafort -- then the judge in intervenes. Well, have you filed? Let`s assume for a moment that you`re right. What`s the remedy you would seek? And then Downing says, well, the question becomes how can he have a fair trial when the press and media have been so saturated with false statements about the evidence? The judge says, all right. So what`s the remedy assuming you`re right?

Downing, well, given the pattern of conduct one remedy is certainly dismissal. The judge, no. Putting that one aside. Mr. Downing, I`d like to stick with that one briefly. The judge, no. Go on.

Actually in that moment the judge is saying no to dismissing the case on the basis of media leaks.

Then, Mr. Downing says, your honor, what I`m trying to deal with is I think you`ve kind of glossed over this issue in terms of you talking to somebody and asking them some questions in voir dire. I think we can do some supplemental briefing to just show this court how satiated the populace. The judge, will you listen to what I`m saying to you? What remedy would you have asked for if you`re right that it has been satiated, as you put it?

Mr. Downing, it would have to be a change of venue. The judge, ah, finally. Finally.

Mr. Downing, I was brief. The judge, have you made a motion? Mr. Downing, we haven`t made a motion on that.

The judge, it is a remedy but I have to determine whether the remedy is warranted. You`d better martial all your evidence on that whether we determine whether you go to Roanoke or Richmond or someplace to try this case.

Mr. Downing, we`d ask leave of court to file a supplemental briefing on that issue. The judge, well, do it. Do it right now. Do it quickly. I expect to see it by the close of business Friday, a week from Friday.

Mr. Downing, thank you, your honor. The judge, that was obvious the first time I saw the motion. And then he goes on to complain about how honestly it is time for lunch.

You do not envy people having to argue in this courtroom, right? But this change of venue thing appears to be the latest gambit from the Manafort defense. Now, they want to try to move Paul Manafort`s trial to another part of Virginia to I guess escape the media coverage that emanates from the D.C. metro area about his case. Presumably they think they`d get a more conservative environment. I don`t know.

Manafort`s defense team is going to try that now, though. And meanwhile, they are starting to put up live witnesses to defend the propriety of the evidence that the special counsel`s office has seized from Paul Manafort and that they`re using in the case against him.

And the last point here. There was a really like ooh, interesting moment. from that live witness on the stand today. This is an FBI agent on the stand.

And the FBI agent explained today in court that the FBI apparently only learned that Paul Manafort kept some of his business records in a storage locker, which ended up getting searched and ended up being really important, apparently the FBI only learned about the storage locker when "A.P." reporters contacted the FBI to ask them for comment on a story the "A.P." was pursuing about Manafort`s finances.

All right. Question -- this is the prosecutor -- could you please state your name for the record? Answer, Jeff Pfeiffer. Are you currently employed? Yes. Where do you work? The FBI. What`s your title? Special agent. How long have you been a special agent with the FBI? Since 2002.

Let me direct your attention to the spring of 2017. Were you assigned to a particular FBI squad at the time? Yes. Which one? International corruption squad. And are you currently assigned to that squad? Yes.

During your tenure at international corruption squad, were you involved in an investigation relating to Paul Manafort? Yes. And in May 2017, did you obtain a search warrant related to a storage unit in Alexandria, Virginia? I did. What location is cited in the warrant? 370 Holland Lane Unit 3013 Alexandria, Virginia.

What is that exactly? That`s the storage unit in question. Now, you testified earlier you that searched the storage unit. How did you come to understand that Mr. Manafort used a storage unit? Answer, I don`t recall exactly. It was either through my investigative efforts or through a meeting that occurred with reporters of the "Associated Press".

Question, a meeting with reporters. Did that occur on April 11th, 2017? Answer, yes, it did. Where did that meeting take place? In the Bond Building of the Department of Justice. And who was present? Members of the FBI, Justice Department, and the "Associated Press".

What did you understand the purpose of that meeting to be? Answer, to receive information from the reporters. To receive information from the reporters. Not to give the reporters information but to get information from the reporters.

Question, can you explain to the court generally what happened? Answer, the reporters offered information in regards to an investigation they had been conducting on Mr. Manafort. Question, and you who did government representatives respond? Generally, no comment as far as questions involving any sort of investigation.

Question, based on the meeting did it appear as though the reporters had conducted a substantial investigation with respect to Mr. Manafort? Answer, they had. During that meeting did one of the reporters mention a storage unit in Alexandria, Virginia, associated with Mr. Manafort? Answer, he did.

Question, did you subsequently issue a grand jury subpoena to a facility named public storage? Answer, I did.

That`s how they found it. Why would the "A.P." reporters be giving information to the FBI? That`s the way the FBI agent described it. The "Associated Press" later clarified compactly what happened there. They put out a statement today explaining how they think the public should see this meeting.

This is from an "A.P." spokeswoman. Quote: "Associated Press" journalists met with representatives from the department of justice in an effort to get information on stories they were reporting, as reporters do, said "A.P." spokeswoman Lauren Easton. Quote, during the course of the meeting they asked Department of Justice representatives about a storage locker belonging to Paul Manafort without sharing its name or location.

So, that`s how it happens. You know, I can`t help but think that this is sometimes just the way these things go. Reporters go to the government, they go to get confirmation or comment, whatever information they can get. The government mostly no comments.

But by accident the government actually learns something that becomes important for their investigation later when they get asked something by these reporters that they didn`t know about before they heard the question. And now we know based on this hearing today that that`s how the FBI figured out that Paul Manafort had a storage locker, which they subsequently raided, which we now know turned up evidence among other things that Manafort had a previously unknown $10 million outstanding loan from a Russian oligarch named Oleg Deripaska that was paid into a Paul Manafort- controlled shell company that he used for among other things paying more than $3.5 million in cash to buy an apartment in Trump Tower.

Remember how when he wrote to Trump about becoming his campaign manager part of his pitch was hey, I live in Trump Tower?

The president`s personal jeopardy in this investigation is still an open question. Papadopoulos proceedings and Flynn and Cohen and gates and all the rest of them, it`s all part of that. But the president`s campaign manager is going on trial now. And proceedings in his case are moving fast and at least thus far they are proceeding in front of a very unpredictable, very testy judge who gets hungry right around noon and who has started to get testimony from the first live witnesses for the prosecution.

Will the president be picking a new Supreme Court justice in this context? Hold that thought.



SEN. CORY BOOKER (D-NJ), JUDICIARY COMMITTEE: I do want to point out one thing that hasn`t been mentioned by my colleagues that we all should know and be aware of which is to me what I think is clearly a potential conflict of interest, one that has a profound reach. The president of the United States right now is a subject of an ongoing criminal investigation, an investigation that every member of this committee knows could end up before the Supreme Court. And so, if we are not going to thoroughly discuss what it means to have a president with this ongoing investigation happening who is now going to be able to interview Supreme Court justices and potentially continue with this tradition of doing litmus tests, loyalty tests for that person, we could be participating in a process that could undermine that criminal investigation.

I do not believe that this committee should or can in good conscience consider a nominee put forward by this president until that investigation is concluded. I think we should look at the larger moment we`re in in American history. The conflict of interest that`s clearly present with this president. And we should delay this until the Mueller investigation is concluded.


MADDOW: Senator Cory Booker of the great state of New Jersey joins us tonight for the interview.

Senator, thank you for being here tonight. Good to see you.

BOOKER: Good to see you as well.

MADDOW: So I saw you make the argument there in the Senate with your colleagues. I should mention that at the earlier part of your remarks when you said that the president is part of this ongoing investigation, Senator Cornyn of Texas interjected and said he`s not sure that the president is a subject of the investigation, which I thought itself was a telling moment.

Tell me about why you`re making this case and how you intend to press it.

BOOKER: Well, we`ve already seen some bipartisan work trying to avoid a constitutional crisis. Lindsey Graham and myself put forward a bill to protect the special counsel. We know that with this whole investigation of which the president is a subject of we`ve seen, what have we seen so far? Seventy-three charges amongst 26 people and companies, five guilty pleas, one person sentenced.

So, this is all people around this president. So this is ongoing. We`ve got to avoid a constitutional crisis. What is that? Questions going before the Supreme Court, you covered some of them already.

Can a president be criminally indicted? Can a president pardon himself? Can a president stop an ongoing investigation? Can a president fire a special prosecutor?

A lot of questions now could go before the Supreme Court for a man who on a number of occasions we know what he did with the FBI Director Comey, who clearly talked to him about loyalty. We know that he said publicly he would not have hired Jeff Sessions if he knew he would have recused himself which clearly if you`re not loyal to me I wouldn`t have even hired you.

So, here the president is going to hire a Supreme Court justice and put them before the Senate. It`s very understandable that with the pattern of behavior that he`s going look for somebody with that litmus test or a loyalty test. Should that person then be the balance of the Supreme Court, that that person is going to decide in the favor of the person that gave him the job?

MADDOW: Now, are you saying the president shouldn`t be appointing any judges? What`s the difference between a Supreme Court justice nomination and a circuit court nominee or a district court nominee?

BOOKER: Because the Supreme Court is the final say of the law of the land. And this is an investigation that`s gone on for a year now. This president has three more years in his term. We as a Senate who always were designed by our Founders to be sort of the sobering, balancing, cooling plate as one metaphor was used for the American government, we should just put a pause and say let this investigation run its course before we move on something so consequential which could ultimately end up hobbling all of us in a constitutional crisis.

MADDOW: I mentioned in the earlier segment that one of the person who`s considered to be a short-lister for the nomination, and again, it`s all speculation at this point, but there`s a circuit court judge named Brett Kavanaugh who`s considered by a lot of people to be -- have a good chance at getting this nomination. He was a clerk for Justice Kennedy, for example.

He has written -- he`s on the record as saying that he doesn`t think that - - effectively doesn`t think that a president could be indicted, that it would be catastrophic for the country. Is that the sort of question -- it`s almost impossible for me to imagine a confirmation hearing in which the questions are all about can a president be indicted, can a president fire an FBI director in order to stop an investigation into himself, can a president pardon people in order to save himself or his family from an ongoing investigation?

There`s never been a confirmation hearing like that. But should we start to look at the public record of all these potential nominees to see if those opinions might be part of the reason they`re being chosen?

BOOKER: I think we`re at a moment now where these constitutional questions are coming up. And I believe given the president`s pattern of behavior that this is going to be on his mind, that he`s going to be trying to take measures to protect himself from this investigation. So, I think that is definitely -- should the president appoint and the head of the Judiciary Committee decide -- remember, he didn`t under President Obama agree to hold hearings. If he decides to hold hearings, if Grassley decides there`s no potential for a constitutional crisis or conflict of interest which I believe there is, I think it`s fair game in the hearings to go after this line of questioning.

MADDOW: Do you think that Democrats in general have come to a consensus view that this nomination shouldn`t be considered at least until after the election? We heard arguments about that early on, especially from Democratic Leader Chuck Schumer saying if we had to wait until after the election to consider Merrick Garland, we should wait until after the election now to consider who this nominee is. Is there consensus in your caucus on that?

BOOKER: I can`t speak to every one of my 48 colleagues, but let me say that was the robust feeling in our last caucus meeting that here we have an election, not like Obama -- with many months less than Obama was shy of election. We have different folks on record for not just talking about the election in regards to President Obama, but even talking about mentioning a different Senate. Amy Klobuchar read in our Judiciary Committee a quote from another Republican senator that said we`re about to have a new Senate, we should wait.

Given the McConnell rule, I said this is a crossroads. Either McConnell as doing that because he was setting a new standard in a rule or it was a cynical power grab undermining the Constitution of the United States in preventing President Obama from appointing someone. It`s one of those two.

So if he doesn`t abide by that rule, it`s been then exposed exactly what this was about and this is a Republican Party that will stop at nothing, even trampling the intentions of our Founders to make sure they control the Supreme Court.

MADDOW: If there`s an either/or there, the implication of both of them is that probably the next nominee should be delayed, right? If it was done for the right reasons or done for the wrong reasons, either way, presumably the response to that is not to let them go back to regular order for the next nominee.

BOOKER: And it`s a gut check for the American people, should we get that chance to vote in this election, do we want to take away individual rights, the rights for a woman to control her own body, the rights for people to marry for their choice? There are so many issues that will be decided about the power of individuals against powerful forces like corporations.

Remember, we saw Citizens United decide to put corporate billion dollars worth of power as equal speaking rights as ordinary American citizens, the ascendance write of corporations at the expense of individual rights, individual liberty. We see this continually being eroded. And now we can shift to things I think you and I in our lifetime could never imagine we would see, like entire states regardless of rape or incest banning abortion rights, taking away liberty of women all across this country.

This is all that`s in the balance. I think the American people should have this election to decide.

MADDOW: Senator, you are a member of the Foreign Relations Committee. And as such I`m going to exert cable news host privilege, which is a thing that doesn`t exist. I`d just -- I`d actually like to ask you to stay around for one more segment. There`s a little bit of breaking news that NBC has just broken on a foreign policy. Would you stick with us?

BOOKER: Yes, I will.

MADDOW: All right. We`ll be right back with Senator Cory Booker of New Jersey. Stay with us.


MADDOW: Joining us once again here live in studio, Senator Cory Booker of New Jersey.

Senator, I want to ask you to stay over in part because of your role on the Foreign Relations Committee. Just to get your response to this shocking new report that`s just broken from NBC News. I`ll read you the lead.

U.S. intelligence agencies believe that North Korea has increased its production of fuel for nuclear weapons at multiple secret sites in recent months. U.S. officials tell NBC News the intelligence assessment has not been -- this intelligence assessment has not been previously reported. It seems to counter the sentiments expressed by President Donald Trump, who tweeted after his summit with Kim that there was no longer a nuclear threat from North Korea.

Analysts at the CIA and other intelligence agencies don`t see it that way, according to more than a dozen American officials who are familiar with this new assessment.

What`s your reaction to that?

BOOKER: Well, before we even get to this stunning revelation, it was already stunning to me. If this was a movie plot, and I was sitting in a film watching a film about American foreign policy, I would have whispered to somebody that this can`t happen in real life, that a president would engage with a totalitarian dictator, who`s murdered and slaughtered his people, call him honorable, suspend our operations, give them propaganda fuel by saying that our joint exercises are provocative, it`s basically giving in to their propaganda, not that this is about defending our allies, defending South Korea.

There were so many gives in this. And what did we get? Things we already had, a commitment to denuclearization, no timeline, no verification protocols.

MADDOW: And now, apparently the opposite of that if they`re continuing to develop their program.

BOOKER: Absolutely. We didn`t ask them to disclose anything before. So, now, we have intelligence agencies coming out and saying they are going -- they are enriching uranium at a faster pace. So nothing the president said is true.

We now have taken off of our maximum pressure strategy, we`ve relieved that pressure. We`ve undermined our allies by not informing them that we`re even doing some of the actions we did. This is just a malpractice, commander-in-chief malpractice plain and simple, in allowing this leader to continue to get over on the United States in ways that wasn`t even happening under previous administrations.

MADDOW: Senator Cory Booker, thank you for being here. I know Friday night it`s tough. Thank you.

BOOKER: Thank you very much.

MADDOW: Much appreciated.

All right. Much more ahead tonight. Stay with us.


MADDOW: Antler, North Dakota. Antler, North Dakota, is a tiny little town. It is about two miles from the U.S.-Canadian border. It is a beautiful little place. Population of Antler, North Dakota is 28. Not 28,000. Not 2,800. It`s 28.

This is the post office in Antler. And it is at this post office in tiny little Antler, North Dakota where there is going to be a protest tomorrow. A rally tomorrow. To protest the Trump administration`s policy of separating kids from their parents at the border.

That one in Antler, North Carolina, population 28, is one of about 750 different rallies that are happening all over the country tomorrow in all 50 states, including little far-flung places like that. The biggest protest is expected to be in Washington, D.C. where people will gather at Lafayette Park across from the White House. At least 50,000 people are expecting in D.C. alone. And these rallies nationwide tomorrow will be kind of a dramatic culmination I think to the protests that we have seen for the last couple of weeks.

Just this week, protesters shutting down ICE facilities in several U.S. cities. Protesters staking out Attorney General Jeff Sessions at public events. Just yesterday, hundreds of women were arrested occupying the U.S. Senate offices in D.C., almost 600 women arrested. We`ve got a little bit to come later on this hour about what you should expect this weekend from those rallies and about the coverage of those demonstrations this weekend.

But before that all kicks off tomorrow, we actually have two big unexpected news developments directly related to this story, and that`s next. Stay with us.


MADDOW: Ahead of tomorrow`s national day of demonstrations against the Trump administration taking kids away from their parents and apparently having no idea if or when or how to return them, there are two big news developments on this story today. The first comes in a new NBC News report about the number of kids we`re talking about here.

According to NBC`s new report, quote, the government was separating migrant parents from their kids for months prior to the official introduction of the parent/child separation policy. Running what a U.S. official called a pilot program for the policy in Texas. This means that in addition to the more than 2,000 kids that the government now admits they`ve taken away from their parents in the past couple months, quote, Department of Homeland Security figures show that 1,768 children were separated from their parents before this spring between October of 2017 and February of 2018, bringing the total number of separated kids to more than 4,100.

We don`t know how many of those 4,000-plus kids are still separated from their parents or honestly if any of them have been reunited, but in terms of the scale of this moral disaster, 4,000 kids is twice as bad as 2,000 kids.

Meanwhile, the White House remains under a ticking court order to reunite those families no later than July 26. If this report is correct, they might have to reunite double the amount of kids we originally thought even though the White House has yet to demonstrate they have a plan to make that happen. So, that`s one.

The other development we have in this story today is not a news report, it`s a letter signed by 19 top criminal investigation agents at ICE, at Immigration and Customs Enforcement. There are only 26 of these agents in the whole country, 19 of them are on this letter.

The job of these elite agents is to oversee the investigations into serious matters like threats to national security and organized crime and human trafficking. These agents, these senior agents have now written this letter to the Homeland Security Secretary Kirstjen Nielsen asking for their part of ICE to be divorced from the rest of ICE because being associated with the administration`s hard-line immigration policies is making it harder for them to do their important national security work.

Quote, our investigative independence is unnecessarily impacted by the political nature of civil immigration enforcement. Many jurisdictions continue to refuse to work with us because of a perceived linkage to the politics of civil immigration.

These are not former ICE agents. These are not low level ICE agents. These are current federal employees at a senior level at ICE, asking the secretary of homeland security to please break ICE apart, please break off what they`re doing from the rest of ICE so that they can do their jobs without essentially being tainted by what is going on in the rest of ICE, which other people in other jurisdictions want nothing to do with.

Secretary Nielsen, do not forget to check your mailbox. Your employees are trying to get ahold of you.

Joining us now is Alonzo Pena. He`s the former director of Immigration and Customs Enforcement or ICE.

Mr. Pena, I`m really pleased that you`re with us tonight. Thank you very much for making time.


MADDOW: I think a lot of Americans don`t necessarily understand what ICE does and that there are a lot of different parts of ICE. Can you explain the difference between the kind of work that these agents who do who wrote this letter to Secretary Nielsen and what we`ve been seeing in terms of agents who might -- and employees who might be involved in the domestic immigration enforcement stuff, including the separation of families at the border?

PENA: Yes, the division that we`re talking about, Homeland Security investigation was established some time around late 2009 and it was set up to go after transnational criminal organizations involved in the serious criminal activity, money laundering, drug smuggling, cartels, narcotics cartels, also enforcement of customs laws involving intellectual property rights, anything, transshipment of goods to countries that are threats to the United States.

It was set up to do the investigative -- criminal investigative work involving these major crimes.

MADDOW: In terms of these agents saying that what`s happening at the border and the sort of divisive immigration policies of this new administration being a problem for their ongoing work, for the sorts of serious crimes you`re describing, I have to ask if this is a sort of complaint or concern that`s come up in the past.

Is there -- have there been tensions between the agency that the agents doing the kind of work that you`re describing there have previously felt like they should be in a different kind of work, a different kind agency run in some different way?

PENA: Yes, there has been concern about that the focus and mission of the organization instead of addressing national security threats, threats to the country, community, public safety, that there has been a shift to deal with the low level immigration -- civil immigration enforcement and that`s caused problems because there`s not a focus on dismantling organizations that actually will affect the national security of the United States, that will affect public safety in communities.

It`s been more toward the -- a political statement that immigrants are bad, immigrants are criminals and that all of them need to be looking over their shoulder that they can be picked up any day instead of using the resources that have been given to ICE and to homeland security investigation and to go after threats that posed problems to communities where we have law enforcement agencies wanting to work with us to keep their communities safe.

MADDOW: Alonzo Pena, former deputy director of Immigration and Customs Enforcement, I really appreciate your time tonight, sir. I hope you`ll come back.

You know, that satellite delay sometimes very awkward.

We`ll be right back. Stay with us.


MADDOW: Programming note on those big protests planned for around the country tomorrow, people demonstrating against the Trump administration`s taking kids away from their parents. Here`s that map of all that planned rallies, not a particularly map, but at least shows that lots of rallies will be happening.

The biggest rally is expected to be in D.C. I want to tell you that MSNBC will be live all day tomorrow with coverage not just from what`s expected to be the big rally in Washington but from rallies all around the country, so you -- if you were not going to be there, or not looking out your window at it, you maybe able to see it right here.

That does it for us. Now, it`s time for "THE LAST WORD." Steve Kornacki in for Lawrence tonight.

Good evening, Steve.



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