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Giuliani: 'collusion is not a crime.' TRANSCRIPT: 07/30/2018. The Rachel Maddow Show

Guests: Daniel Goldman, Natasha Bertrand, Jeff Horwitz, Lara Lind

Show: THE RACHEL MADDOW SHOW Date: July 30, 2018 Guest: Daniel Goldman, Natasha Bertrand, Jeff Horwitz, Lara Lind

ARI MELBER, MSNBC HOST: And thanks to you at home for joining this hour. Rachel has the night off.

We begin tonight with one of the more telling admissions from Trump`s criminal defense team. One of those nights where you wonder who Rudy Giuliani is really trying to help. Now, one way to understand this absurdity is with the absurd camera work that blessed the Internet this weekend when this dog got ahold of a GoPro camera. The video fits a little of how Giuliani is an unreliable narrator or director, twists and turns in this drama have definitely benefited from his telling.

And so our thanks tonight to the dog who grabbed that camera in his mouth and ran it all over the place this weekend. It`s something worth seeing.

Now, as for Giuliani, he is claiming collusion is not a crime. This point, of course, first arose last May after Trump fired FBI Director James Comey, news broke within a week that Comey said the president asked him to end the investigation into his recently fired national security adviser Mike Flynn. Boom. Then the DOJ, of course, appointed Bob Mueller special counsel the next day.

Trump`s colossal mistake, taking one and only possible action that could enlarge that probe into his White House, as we all know by now, it changed the whole arc of his presidency. It spawned the cottage industry of Trump legal actions and discussion from former prosecutors explaining this probe into his conduct. We`ll have one in a moment, to his allies experimenting on TV with all kinds of defenses and some are better than others.

If you say Trump was a rookie and he didn`t know what his campaign was up to, if true, that`s a decent legal defense. If you say Trump did collude and that`s not a crime, that`s not a decent legal defense because it`s not true and also kind of makes you sound guilty.

So, here`s how that one got started on Fox News.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I mean, look, I`ve said it before and I`ll say the again, collusion is not a crime, only an antitrust law. You can collude all you want with a foreign government in an election. There`s no such statute.

UNIDENTIFIED MALE: But what crime? Can anyone identify the crime? Collusion, while alarming and highly inappropriate for the Trump campaign to -- of which there is no evidence, by the way, colluded with the Russians, it`s not a crime.

(END VIDEO CLIP)

MELBER: We`ll get to that, the fact check, anyway. But let`s go through this history in May and June of last year. And then you have allies going back to the claim collusion is not a crime and it seems like a weird defense to start with at the time, rather than just denying it.

But then it made more sense when "The New York Times" would later report, this was last summer, something that many Trump close aides apparently already knew. That there was this Trump Tower meeting. That Trump`s own son took it explicitly being promised damaging information on Clinton and then "The Times" exposed the actual exchanges that proceeded the meeting, including, of course, if it`s what you say, I love it.

So, if you did that, you might need a wider defense than denial. In October came the indictments of those multiple campaign officials, October 30th, the special counsel announcing those indictments against Paul Manafort who goes on trial tomorrow, plus his deputy, campaign manager Rick Gates. Mueller also announced guilty pleas of foreign policy adviser George Papadopoulos who admitted to lying about his contacts with who? With Russian nationals who he thought were tied to the Russian government who had offered him what? Yes. Information about the possible release of Hillary Clinton`s e-mails.

So, following those indictments, we then saw allies of the president including now -- and this is key -- the president`s own lawyers, picking up the argument like GoPro camera, collusion is not a crime and running around with it.

(BEGIN VIDEO CLIP)

JAY SEKULOW, PRESIDENT TRUMP`S LAWYER: You just had all this conversation about collusion. Remember this, collusion in and of itself, there`s no crime of collusion.

(END VIDEO CLIP)

MELBER: That`s not just a pundit. That`s the president`s lawyer, Jay Sekulow. And he would return to that, he would pick up that bone, if you will, in his mouth and whip it around.

Now, following the guilty plea of Mike Flynn a month later, Sekulow said, quote, for something to be a crime, there has to be a statute that you say is being violate. There`s not a statute that refers to criminal collusion. There`s no crime of collusion.

The president himself jumped in on this and the argument he heard about on TV from Harvard law professor Alan Dershowitz. And the president then brought it up in an interview with "The New York Times", saying: I watched Dershowitz the other day. He said, number one, there`s no collusion. Number two, collusion is not a crime, but even if it was a crime, there was no collusion. Now, that`s the combining of the denial with the collusion is not a crime narrative.

Now, it maybe went away for a few months. The president was focusing on just the straight up no collusion point. You see it in all the tweets. And then now, it is roaring back because of the Thursday night bombshell that the president`s own former lawyer and fixer Cohen is claiming, despite all those denials, the president did know about the Russia Trump Tower meeting in advance.

Now, when that report drop, the allies of the president, you bet you know what happens next. They picked it up. They whipped it around and began running with it again.

(BEGN VIDEO CLIP)

UNIDENTIFIED MALE: It`s hard to see the point of all of this hysteria. What exactly would the crime here be? It`s not illegal to talk to foreigners. Nobody is claiming that any information changed hands. So, even if did it, so what?

UNIDENTIFIED MALE: Look, I don`t think it is bad if campaigns are turning to foreign governments for dirt. It`s not collusion. It`s not something that`s impeachable.

(END VIDEO CLIP)

MELBER: As they say in court, hey, dude, no one cares if you think it`s bad. The question is whether it`s an illegal conspiracy. Now, this was carried on through weekend by the president`s surrogates on Sunday shows.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: So we don`t even know if the information we`re being given by another outlet is even accurate. Now, if it is, and we`ve discussed this before, collusion is not a crime. And so, the fact of the matter is that we`re a long way away from having anything to talk about here.

(END VIDEO CLIP)

MELBER: And today, it got stranger with the president`s own lawyer, Rudy Giuliani, going further.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, PRESIDENT TRUMP`S LAWYER: I`ve been sitting here looking in the federal code trying to find collusion as a crime.

UNIDENTIFIED MALE: It`s not.

GIULIANI: Collusion is not a crime.

I don`t even know if it`s a crime, colluding about Russians.

UNIDENTIFIED FEMALE: OK --

GIULIANI: You start analyzing the crime. The hacking is the crime.

UNIDENTIFIED FEMALE: That`s the original crime, yes.

GIULIANI: The president didn`t hack.

UNIDENTIFIED FEMALE: Of course, not. That`s the original --

GIULIANI: He didn`t pay them for hacking.

(END VIDEO CLIP)

MELBER: He didn`t pay them for hacking. Can I just point out that Donald Trump famously doesn`t pay his own contractors and his own long time lawyers? I mean, even if his opponents were accusing him of anything, it wouldn`t be of paying Vladimir Putin for the hack.

But big picture, we are as all of this voluminous record shows, a long ways from any kind of straight denial and we`re getting closer to people who work for the president right now saying that even an alleged knowing election conspiracy quid pro quo ought to be legal.

Mueller, meanwhile, is probing how Trump used the July 26, 2016 speech that we all remember to weirdly address Russia in the second person on the very criminal activity that has now been indicted for saying, quote, Russia, if you`re listening, I hope you`re able to find the 30,000 e-mails that are missing. Indeed, we know this timeline from the new indictment. It was the very same night that Russian agents, quote, for the first time attempted to spear phish email accounts used by Clinton`s personal office.

Is that just history? Is it just odd timing? Did Mueller just indict foreigners and Paul Manafort and is now maybe getting ready to wrap things up?

To be fair, we don`t know. They haven`t said. But what we`re seeing right now, amidst some of this collusion is not a crime hysteria is the people closest to this, people like Rudy Giuliani and the president himself, they`re not acting like Mueller is wrapping this up. They`re acting like something is about to get much hotter and like it is somehow for some reason important to them to get at least their supporters, at least some people in this nation right now tonight to believe that crimes are not crimes.

I turn now to a former federal prosecutor, Daniel Goldman, who is a U.S. attorney in the Southern District of New York. He`s a fellow at the Brennan Center for Justice at NYU Law School.

Thanks for being here tonight.

DANIEL GOLDMAN, FORMER ASSISTANT U.S. ATTORNEY: Thanks for having me.

MELBER: Collusion is not a word that figures importantly into the federal statutes. But the reference to a reference conspiracy is the type of crime that is in the statutes. Walk us through what to make of this defense.

GOLDMAN: If you were to sit on television every night and every time you talk about this investigation, you would have to say, let`s talk about the investigation into a conspiracy to defraud the United States from impeding the proper functions of the government, people would turn the channel off. Collusion is just shorthand for potentially several crimes that are in the federal code.

And so, this shift in strategy when Rudy Giuliani unquestionably knows that, means to me there is something else up. It is just too simplistic and too incorrect even for someone like Rudy Giuliani who has made a number of misleading and incorrect statements over the past couple months. Even for him, it`s a clear change in strategy.

MELBER: What does it suggest to you that he`s worried about?

GOLDMAN: So, you mentioned the Michael Cohen piece. I actually think there might be an additional wrinkle to this, because -- and follow me here for a second. Giuliani introduced the notion of this preceding meeting to that June 9th meeting. That was not out there before.

And today on one of his many interviews, he said that one of the people at that meeting was Rick Gates. Rick Gates is the star cooperating witness in the Paul Manafort trial which is set to begin tomorrow. And before a trial, the government has to provide to the defense every prior statement of any of their witnesses. So, now, Manafort`s attorneys have Rick Gates` prior statements, all of his interview with Mueller and the team.

And what sticks out to me is that gates was at that meeting and it would not surprise me, this is pure conjecture and there may be limitations on whether Manafort`s lawyers can disclose this. But it wouldn`t surprise me at all if Rudy Giuliani learned from Manafort`s lawyers a little bit about what Rick Gates is going to say about collusion. And they`re now trying to get out in front of this by not denying that there is collusion but by saying it is not a crime.

MELBER: That`s a fascinating theory that would plane some of the chain of potential information. But given what Manafort is charged with, why would the Trump Tower meeting come up at all?

GOLDMAN: It will likely not come up at the trial. But because of the federal rules of evidence and federal statutes that require the government to disclose all of his prior statements, because they can know used on cross-examination to impeach him, Manafort`s lawyers will have known about it. So, don`t expect about this at the trial that`s upcoming, but it`s something that through potential backchannels, Giuliani could learn, and also, Rudy Giuliani would not have been able to speak to Rick Gates. So, he would not -- when he says and goes on, I said, I`ve spoken to everybody at those meetings, it is not true that he -- Giuliani at least has spoken to Rick Gates, since Gates cooperated before Giuliani came on the scene.

MELBER: Right. It`s enough to make your head spin because you`re referring to how Rudy Giuliani said, well, it was talked about a pre- meeting, which could make them look bad if they were all geared up and prepping for getting bad stuff on Clinton from the Russians, but then he says, well, maybe there wasn`t a pre-meeting anyway. So, what`s he doing there?

GOLDMAN: Covering his tracks, because I think he spoke too much. And I think he realized at some point, that this is the first anyone had heard of this pre-meeting and everyone`s focused on it now. And for him to give an explanation of, oh, there was a pre meeting, but the president wasn`t there and didn`t know about it -- again, it`s about doth protest too much, you know?

Of course, the president didn`t pay Vladimir Putin for hacking. Of course, the president didn`t speak to Vladimir Putin on the phone and say, hey, can you interfere in our election on my behalf? I mean, you don`t have to do that.

MELBER: Yes, if you don`t pay contractors in Atlantic City, you`re probably not paying the Kremlin. They`re farther away.

GOLDMAN: And they just -- there`s no fundamental understanding of a conspiracy which does not require direct contact. You can build evidence of a conspiracy through all sorts of direct or circumstantial evidence.

MELBER: Right, and Giuliani also knows under campaign laws, even accepting the thing of value from a foreign government is illegal. So, that -- it doesn`t require an actual transaction there.

As always, Daniel Goldman, we learn from you. Thank you very much for being here tonight.

GOLDMAN: Thank you for having me.

MELBER: I appreciate it.

I want to turn now to another guest of ours, Natasha Bertrand, staff writer for "The Atlantic". She has been all over this probe from the start.

Thank you for being here.

Where do you come down on Rudy secret genius, or Rudy a bumbling incompetent spokesperson, or Rudy bumbling incompetent spokesperson that`s hiding a genius?

NATASHA BERTRAND, STAFF WRITER, THE ATLANTIC: Well, I think it`s really, really difficult to be a lawyer for a client who is notoriously unreliable. It seems like Rudy Giuliani just does not know the facts in any given situation because his own client is not being completely honest with him. I mean, Donald Trump has changed his story on so many things related to the Russians interference in the election and his own role in them, that, of course, it`s really hard even for Giuliani to keep up with it.

And so, it really seems like he`s just kind of making up his own facts as he goes along, as evidence today when he gave two separate accounts of what actually happened before that Trump Tower meeting on June 9th. He claimed at first that there was a pre-planned, there was a pre-meeting meeting on June 7th, that Rick Gates and Jared Kushner and Paul Manafort attended and then he claimed that that meeting actually never happened and he said that it was leaked but it hadn`t been -- hadn`t yet been made public. So, it`s just -- it`s a lot of whiplash and it just seems like Giuliani is trying to muddy the waters and confuse confused as much as possible because that`s their only strategy at this point, to just make people really, really confused about what actually happens so that they kind of look at the next shiny thing and move on.

MELBER: Well, and we haven`t even reached his other defense today that is remarkable and really looks like bad news for people who aren`t at the highest levels of the White House. I guess we could call it the VIP defense, you know, in the back of the club where you have the special VIP section. He basically says, and I`m quoting, when I say no collusion between the Trump campaign and Russia, I`m only speaking about the top four or five people in the campaign which, appears to be him narrowing the circle of, well, he`s denying collusion only in the VIP section, not the rest of the club.

BERTRAND: I don`t even -- I don`t know what that means. It`s really hard to decipher to Rudy Giuliani`s comments. I think maybe what he`s referring to is people like George Papadopoulos, for example, who was offered dirt by the Russians in the form of thousands of emails stolen from Clinton`s inbox purportedly.

But it really doesn`t make much sense because, of course, Paul Manafort is -- was the campaign chairman for roughly four months at the most pivotal moment in the election and he is directly at the center of these questions of whether or not the campaign colluded with Moscow, because he was the highest ranking member of that campaign with the closest ties to Russia. And, of course, it`s important to remember that he was heavily in debt by the time that he came on to the campaign as chairman and he decided to do that -- to do the campaign for free. He offered campaign access to a Russian oligarch in exchange for debt relief.

These are all things that, of course, won`t be addressed in this upcoming trial do to begin this week, tomorrow actually with jury selection because it`s going to focus mostly on his tax and bank fraud crimes. But there`s going to be a reckoning and it`s going to come most likely in his D.C. trial which is going to focus on all of his efforts as an unregistered foreign agent.

MELBER: Yes, and it`s especially notable in a campaign that was as thinly snapped to the Trump campaign. We know that from the FEC reporting requirements and they often bragged about a few people there were. So, the top and the bottom were pretty close together on that one when it came to staffing.

Natasha Bertrand, staff writer for "The Atlantic", thank you so much tonight.

BERTRAND: Thanks, Ari.

MELBER: Now, whether or not the president`s attorneys believe collusion is a crime or not, the first real-life trial in the Mueller probe does begin tomorrow. That and much more ahead here tonight.

(COMMERCIAL BREAK)

MELBER: The trial of the president`s campaign chair starts tomorrow at 10:00 a.m. Jury selection in U.S. v. Paul Manafort begins 10:00 a.m. That`s according to the order that went out today.

Now, lawyers for the prosecution`s events are ordered to show up early at 9:00 to discuss some preliminary matters. That includes Manafort`s final last-ditch effort to get some evidence tossed.

Now, Manafort is the first person to go on trial from the Mueller probe, but this trial, as many of the president`s defenders have been emphasizing, is not about Russia or the Trump campaign colluding or engaging in an election conspiracy. The prosecutor saying in open court, they, quote, don`t anticipate that a government witness will utter the word Russia.

Instead the trial is about what prosecutors allege is Manafort`s lavish lifestyle financed with money that he kept in secret accounts transferred into the U.S., all while evading taxes. And the prosecution`s witness list does include the guy who stole him those fancy suits and the Mercedes dealer and even the landscaper on his mansion. So, on the one hand, we are looking at what is a truly historic moment.

The president United States campaign chair going on trial for multiple felonies. On the other hand, there`s a lot of reason to tamp down any expectations that this trial no matter how important to the rule of law will ultimately connect in any way to the larger debate around collusion.

Now to help us understand what is important about tomorrow`s trial and where it fits in and, of course, Paul Manafort we are joined tonight by Jeff Horwitz, an "Associated Press" reporter.

Thank you so much for your time.

JEFF HORWITZ, ASSOCIATED PRESS REPORTER: Thanks for having me.

MELBER: You have done a lot of reporting and investigation of what Manafort work meant, the work in Ukraine, the work in Russia the link to this oligarch that we`ve now heard so much about, Oleg Deripaska. Because this trial as we`ve explained is not explicitly about that, what do you think will be important that will learn through it?

HORWITZ: So, I think it may not be about as much of what we`re going to learn here, because a lot of the issues here are cut and dry, so much as it is just a step and obviously something that Robert Mueller`s team needs to get done successfully. They are going to be approaching -- I mean, this is not a thing about collusion as you point. This is about a guy who allegedly made $60 million overseas, didn`t want to pay taxes on it, but did want to spend it on fancy suits and Yankees season ticket packages and landscaping services in the Hamptons.

And that`s kind of a cut-and-dry thing. There`s a box in your tax returns that asked you if you couldn`t -- you know, if you have any overseas bank accounts and you`re supposed to disclose them. Manafort didn`t, you know, click that one. So, we`ll see what the sort of the bank component of this ends up with, but the closest we get to the campaign is really the suggestion that Manafort gave sort of a campaign job and potentially some encouragement for a White House or a government job to a banker who was providing allegedly fraudulent loans to him.

MELBER: And that would reveal more than just the tax evasion? That would look like an attempt to use the campaign. I mean, the question of why this person who was so greedy that he didn`t want to pay taxes but seems so benevolent he worked for free on this campaign.

HORWITZ: So, I think -- I think those of us who have written about Manafort for a while have a general sense that he was quite a freelancer throughout his career and that means that he was sort of cutting deals. He viewed himself as an entrepreneur and I think a big question in terms of the overall sort of gist of Manafort and his case is going to be to what degree he was doing anything that had his motives and what he was up to, really had anything to do with the campaign at all.

I mean, we`ve seen from some emails that have been released from his correspondence with Konstantin Kilimnik that they were trying to figure out how to get more money out of Oleg Deripaska. And obviously, you know, Paul Manafort was allegedly interested in trying to use his position to get something out of a bank. So, there`s a question of whether or not this has nothing to do with that.

MELBER: When you say freelancer, another word that arises is hustler, and the question is whether he was actually hustling the Trump campaign in a way that might reflect poorly on their judgment and management. But ultimately, in their argument would make them look more like victims than co-conspirators.

HORWITZ: I`m not totally sure whether it`s even a question that it doesn`t reflect poorly or doesn`t reflect well in the campaign that they chose Paul Manafort, given his history. I think that one is probably cut and dry without a court case. But absolutely, I mean, the question is kind of what did he -- what was he trying to sell and how does any of this relate to the campaign?

And again, there`s no reason it has to. There`s absolutely no reason why a guy who was allegedly hiding $60 million can`t go on trial in America for hiding $60 million from the government.

MELBER: Right, and that`s all it could be.

Let me ask you this -- the $60 million, what are jurors going to take from this? It`s very hard to wrap in anyone`s head around the idea that the most brilliant international consulting in the world could be worth that much?

HORWITZ: Yes, it`s -- having seen sort of some of the documents in the financial transfers, I still have a hard time imagining it myself and I guess I would say that these guys are very good at selling their own services. The -- I mean, the money came in in weird dribs and drabs and large lump sums and -- I mean, as I said though that, you know, sort of what work he did to earn it is almost extraneous. In fact, it is extraneous really to this -- to this trial. The important thing is whether or not he disclosed it and was he spending it in the U.S. without -- without letting the government know that he had it.

And that right there is a felony.

MELBER: Do you see anything that could happen that would make him flip?

HORWITZ: So, I think the question that you`re asking there would depend on him actually having something to flip about. I mean, I don`t know that I`d view him as being a loyalist and I think that`s kind of an open question and one maybe that --

MELBER: People cut deals all the time with very little information just for leniency.

HORWITZ: Oh, sure.

MELBER: I mean, most people never go to trial, for some reason with overwhelming paper evidence and his deputy ready to testify against him, he won`t do anything.

HORWITZ: Well, I think -- I think though that when people cut those deals and those deals are very good when you can get them, Rick Gates is presumably taking one against Paul Manafort right now, they cut deals because prosecutors know they have something -- have figured out that they`ve got something they really want and it`s unclear whether the special counsel`s office has a sense of whether Manafort even does have that sort of thing.

I mean, it does seem though like if there`s not a -- if there`s some bargaining to be done, that would be the time to do it.

MELBER: Yes, as it approaches.

Jeff Horwitz from "The A.P.", thank you very much.

HORWITZ: Thank you.

MELBER: Up next, we have all seen it happen, a politician takes the stand and then folds. What happens when a politician does that every single time he claims to take a stand? We have a new word for it.

Stay with us.

(COMMERCIAL BREAK)

MELBER: In Washington politics, important people go on the Sunday public affairs shows and really important people, if they`re in the middle of a big story, they go on all of them. It`s called the "Full Ginsburg" named after Monica Lewinsky`s lawyer who pulled off that trick in `98.

Another famous political phrase is the "Bradley Effect", the situation where voters tell pollsters they`re going to go one way only because they don`t want to admit their real choice and that`s named after Tom Bradley, a black man who was running to be California governor and lost despite a big lead in the polls beforehand, or Supreme Court buffs know what it means to get Borked and everyone knows John Hancock because that`s, of course, what the Founding Father with the largest signature had, and that`s conveyed his courage at a time when rebellion was punishable by death.

John Stewart once tried to make the term McConnelling catch on using generic B-roll of Senator Mitch McConnell smiling into a camera with a song that was because McConnell`s campaign had put the video out there an attempt to evade a campaign finance rule.

Now, let`s be fair, McConnelling didn`t exactly catch on. Neither did fetch, and that`s why they say stop trying to make fetch happen. But tonight, maybe we can all together make Rand Pauling happen because it is definitely a political thing for the Trump era, a time when many have rolled over or surrendered to Trump`s actions they once claimed to oppose, they`re the leaders the religious right who accept Trump`s behavior or there`s Paul Ryan in rolling his speakership in something like the witness protection program.

Now, there are other Republicans who make more of a show of opposing Trump. The question is whether that`s posturing over action. So, consider how Rand Paul vowed to oppose then CIA Director Mike Pompeo for his nomination to be secretary of state. Rand Paul said he would do, quote, whatever it takes to stop it. Well, forget filibustering. That didn`t even include casting a vote against Pompeo, Rand Paul voted for him. That is classic Rand Pauling right there.

Or take last summer when Republicans tried to repeal Obamacare. Rand Paul declared himself a no vote, repeatedly. He put it in writing, with much fanfare. And when it came for the final vote, he voted yes. Classic Rand Pauling it.

Or take the one major bill that Trump has actually signed, Rand Paul when these kind of headlines during the tax fight, Rand will stand in way of tax cuts White House fears, he did not. So, let`s take all that context together and take it to the bank for Rand Paul`s latest withdrawal of political capital. He`s been deliberating over Trump`s Supreme Court pick, one defection there could stop Trump in his tracks.

And Paul said, quote, I`m honestly undecided. I`m very concerned about the judge`s position on privacy and the Fourth Amendment this is not a small deal for me. This is a big deal.

Now, if you`re like me, I`m sure you can feel this dispense on this one. What will he do? Will he use this pivotal moment to buck the president or hold out until Kavanaugh is hearing to at least press him on those privacy issues?

You know, I`ve seen more unpredictable episodes of the roadrunner show, and today, Rand Paul announced he will vote yes to confirm Judge Kavanaugh. Wow. Now, that is a shocker, beep-beep.

So, whatever Rand Paul decides at the end of the show, we actually have a report on the factors that really could impact Kavanaugh`s chance to get on the Supreme Court.

(COMMERCIAL BREAK)

MELBER: We did turn a corner last night, maybe not as sharp a corner as the dog with the girl poke camera in the yard. We did want to play that again though since the dog might be something of a catharsis or our weird times. No, the corner we turned last night was actually on the calendar we are now inside a hundred days until the midterm.

So, yes, Trump gets plenty of attention and scrutiny is even a type of attention but the fight for control of the house and that and the Senate seats that are up this cycle, 35 in total, is drawing attention for a good reason. In fact, before we even look at these upcoming midterms and this particular president, we could start with the history as Rachel often does because historically, we do know any first term president is vulnerable in their first midterm.

The American political system tends to bounce between the two parties and a big White House win is typically, not always, corrected a little by the other party gaining seats in the next congressional race. Which that alone may be part of why Democrats are up in the generic ballot that asks people to choose between a nameless person from both parties. And pollsters believe Dems need about an eight-point margin to take back the House.

And look at this, Democrats hold an average lead in generic polls of 7.3. Now, that is a rough ballpark. It does not account for this unusual president or the actual Democrats running for office, who range from some familiar faces in leadership, some activists say too familiar, to some other new and young faces in other races.

And that includes a record number of women candidates running, mostly on the Democratic side. Then there are the issues people are running on, the clues we`re getting from the early races like next week special election in Ohio features a GOP candidate running away from Trump`s tax cuts, and a Democrat using the issue to hammer on health care and the safety net.

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MELBER: So, that`s Ohio. We`re looking at North Dakota. That`s a quite a conservative state. Trump won there by 35 points and Democratic Senator Heidi Heitkamp is facing a challenge from a conservative congressman.

But then look at conservative billionaire Charles Koch, he`s actually putting muscle behind her as the Democrat, thanking Senator Heitkamp for voting against banking regulations the Kochs didn`t like. And now, the news tonight, Koch`s group says they won`t help the Republican trying to unseat Heitkamp in North Dakota.

If that sounds like another wild turn in the yard -- well, it is something different. Charles Koch telling reporters he is actually speaking out about all this beyond parties. Quote: I don`t care what initials are in front of her after somebody`s name. I`d like there to be many more politicians who would embrace and have the courage to run on a platform like this.

So, for more on exactly what this conservative funder is doing -- well, we go to someone who`s been covering this latest Koch network summit, I`m joined by Leigh Ann Caldwell, political reporter with NBC News.

Leigh Ann, so nice to have you tonight.

LEIGH ANN CALDWELL, CAPITOL HILL REPORTER, NBC NEWS: Great to see you, Ari.

MELBER: When you look at this somewhat unusual move, does it reflect Heitkamp and certain Democrats simply getting closer to the Kochs or them taking a step away from the Trump Republican Party?

CALDWELL: I think it`s the latter. It`s them taking a step away from the Trump Republican Party, and that`s because the Kochs, which are libertarian in their background, they think that the Trump Republican Party is moving away from them, and this I believe is them taking a stand saying, look, we do not want the Republican Party to move into this other direction, this direction that doesn`t support free trade. This party that expands government spending.

And so, we`re going to take a stand now and if you Republicans do not come on board and support the same things that the Koch support, which is absolute free trade, it`s little regulation, it`s reduced size of government, they oppose corporate welfare, is if you don`t get behind these things, then we`re not going to support you.

And they say that Heidi Heitkamp challenger Kevin Cramer, he`s a current member of Congress who represents North Dakota and they say, look, he has not stand his ground on all of these issues, he`s voted against us on many times and they say he`s inconsistent on these other broader issues such as immigration, criminal justice reform, these other issues that the Kochs also agree on.

And so, this is a warning shot to Republicans to say, look, do not -- do not travel far off the reservation here.

MELBER: Well, fairly or not, in large swaths to the Democratic Party, the Koch name has become synonymous with all the problems of right-wing money and politics, are there really that many Democratic candidates that even want this association do you think?

CALDWELL: Yes, I think that the Koch association is not going to be a winning issue for many of these Democrats on the campaign trail. The Heidi Heitkamp campaign, they sent me a response after the news about Kevin Cramer today. And in the statement that they sent me, it didn`t mention this at all. It didn`t mention the Koch brothers. It said, look, Heidi Heitkamp is here. She`s going to fight for North Dakota and she`s going to put North Dakotans first.

And so, that was a signal that she`s not going to tout the Koch non- endorsement of her opponent on the campaign trail. She`s going to ignore it and use it as an opportunity to say, look, I`m not going to do it the Koch say, I`m going to do what you the voters say.

MELBER: And what is her position in a Trump state?

CALDWELL: She`s doing pretty well. I think some of the things that the Koch network they like about her, the reason they thanked her is because she rolled back some of these Dodd-Frank banking regulations. She was actually a leader on that. She was a co-sponsor of the bill and that`s something that she`s touted. She says that it supports community bankers and that`s something that got the Kochs` attention and that`s what they thanked her for.

But also remember something about Heidi Heitkamp, Donald Trump likes Heidi Heitkamp, to. Yes, Vice President pence was out on the campaign trail last week in support of Kevin Cramer, but Heidi Heitkamp shows up at the White House and these photo-ops with Donald Trump.

But in the state, she is saying, I`m going to support the president when it`s appropriate for North Dakotans, and I`m going to oppose him when it`s appropriate. I mean, one of the big votes that she has coming up is justice or as the Supreme Court nominee Kavanaugh, and she`s going to get a lot of pressure from the right and probably including the Kochs who announced today that they will likely run advertisements in her state to pressure her to vote for Kavanaugh. And the timing of that vote could be really important for Democrats who are trying to maintain their seats in these states that Trump won in 2016.

MELBER: Right, and that`s one that actually breaks through. I mean, everyone`s going to be tracking where these senators land on the future of the Supreme Court.

Leigh Ann Caldwell, NBC News Capitol Hill reporter, thanks so much for joining us tonight.

CALDWELL: Thanks, Ari.

MELBER: Still ahead tonight, what could be the biggest political fight ahead of November`s election. Stay with us. We`ll be right back.

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MELBER: The Trump administration blew past last week`s deadline to reunify all 2,551 immigrant families that it chose to separate through policies now discontinued partially at the border, and we can report tonight there are new deadlines coming. The administration on Friday telling the judge overseeing that case on family separations that it either reunite -- excuse me, reunified or appropriately discharged 1,820 of the children that it separated.

The administration still has 650 children they call, quote, ineligible to be reunified with their parents at all. About 400 of those are people in families whose parents were deported basically without the children.

Now, the ACLU was asking the government to hand over a list of the 400-plus deported parents. The civil rights group wants to see if it can help find them and reunite the families. Now, after hearing on Friday the judge gave the Trump administration new orders that the government has to submit a list of deported parents by Wednesday. But before any of that, the judge is expected to rule on whether the Trump administration has to stop deporting these newly reunited families. The ACLU asked the judge to make the government wait seven days before deporting any newly reunited families because of, quote, persistent and increasing rumors which defendants have refused to deny that mass deportations may be carried out imminently and immediately upon reunification. So, there might have been something to those rumors.

There`s new testimony now from four fathers who were reunited with their teenage children last Wednesday, which suggests that, quote, ICE agents pressure parents to be deported with their children then separated them again when they refused. The father`s telling ACLU attorneys that after they were reunited with their kids, they were asked to sign a form with options including the choice to be deported with their children or to be deported alone while their children stay in the U.S. to pursue asylum. Now, these fathers say it was nothing like a real choice.

On the forms they were given, someone had checked the box that would send them and their kids back over the border and they were told just sign them. One of the fathers saying that when he, quote, refused to sign, the ICE officers yelled at him in English and said to him in Spanish words to the effect of, what do you think you are, a lawyer?

The administration for its part says there about a thousand families with these imminent deportation orders and they could face what many are calling this false choice that faced those forefathers unless, unless the judge orders the government to wait this week before enforcement of deportation orders, and that important ruling on this important issue, it`s expected any day now.

I turn to Dara Lind a senior reporter at vox.com who`s been reporting on all of this.

It is a real mess. Immigration asylum cases are messy to begin with. This is effectively more complicated by the policy. When you look at what`s being called this false choice, walk us through how this works and what victory would look like if the ACLU can prevent it.

DARA LIND, VOX SENIOR REPORTER: Sure. So, when you mentioned those thousand parents who have already gotten orders of deportation, what that means is they have run out of options to pursue their own asylum claims in the system. Their claims have already been rejected. They`ve been denied review. They are for all intents and purposes on the verge of being deported.

Their children on the other hand when they were separated from them, that legal case got broken out separately and children have a slightly better chance of getting asylum. There are other legal options available to them. So, by choosing to be deported with their child, the parent would be saying, I`m going to withdraw my child`s case even if he could ultimately stay in the country so that we can all go back together as a family.

The ACLU has said for a while that maybe the parent of a 16 or 17-year-old doesn`t want to do, that maybe they would be willing to allow their child to stay in the U.S. and pursue an asylum claim, but that there now as this testimony indicates maybe not being allowed to do that and instead being forced to withdraw the claims of children who might be able to stay ultimately and get legal status.

MELBER: And what do they say to defenders or allies of the administration who argue that in that case, which is really a small subset. But in that case, it would seem that the parents are seeking to actually self break up the family.

LIND: That is some things that the ACLU, the government and the judge in both this case and the separate case over family to detention have said is a choice the parents should be allowed to make, that it is perfectly acceptable for a parent to say, I would rather be deported without my child then forced my child to go through this.

It`s not, you know, the judge in this case has been very skeptical that any parent would willingly make that choice. He`s told the government to go back in the case of the 120 or so parents who have officially waived any reunification rights to make sure that that choice wasn`t coerced, but we`ve seen over for the weekend that, you know, sometimes the alternative might be true and the no one in the government has maintained that the government should be making decisions about what happens to these families after reunification. The question theoretically ought to be, who has options in -- within due process and whether that outcome ultimately ends in their deportation.

This is the first indication we have that the government is trying to curtail the process for people who are still going through it.

MELBER: Right, and as your reporting reflect, there`s some kind of individualized assessment that at least when the system works, it`s supposed to be provided to individuals because each family, and that the threats they face back home in the asylum context is going to inform what they do on an individualized basis.

Dara Lind from vox.com, thank you for your reporting.

LIND: Thank you.

MELBER: Up next, what has made liberals across the country rejoice new this weekend. We`ll be right back.

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MELBER: Liberals have been quite pessimistic about recent Supreme Court news until this weekend when many cheered this headline. Ginsburg suggests she has at least five more years on the Supreme Court. CNN quoting Justice Ruth Ginsburg yesterday, saying, I`m now 85. Justice John Paul Stevens stepped down when he was about 90, so I think I have about at least five more years.

That would put us all in summer 2023 or focused in on the at least, part if you want, Justice Ginsburg could theoretically stay healthy and wait until 2024, presidential election year to retire and, of course, if you wanted to use it, there is the logic Republicans had against Obama saying that a second term lame duck President Trump shouldn`t nominate Ginsburg`s replacement. Of course, it will depend on who`s in charge of the Senate.

Right now, the battle is not over her seat. It`s over Kennedy`s seat and the man who`s been picked to replace him, Judge Brett Kavanaugh. He`s been touring Capitol Hill, meeting with senators, 39 republicans so far and one Democrat, Senator Joe Manchin breaking ranks to become the first Democrat to do such a meeting. Senator Manchin called his two-hour sit down today with Kavanaugh productive. But said, quote, I think it`s irresponsible to announce your position minutes after the nominee is announced.

That`s how his party leadership actually wants it because there is a new report that`s interesting in "Politico" that Chuck Schumer is telling the Democratic caucus stay as neutral as you can as long as you can. The belief is that if Manchin and other centrists remain on the fence, it boosts Schumer`s long odds of finding a way to beat back this confirmation. The X factor, of course, is how it all unfolds. Americans who are starting to make up their mind about Brett Kavanaugh are going to have a role here.

The last poll shows Kavanaugh`s net support among voters is now negative. Many opposing more than supporting. FiveThirtyEight says Kavanaugh is polling like Robert Bork and Harriet Miers. We will keep you posted on this story as it develops.

There is the relevant fact that the Supreme Court nominees as unpopular as Brett Kavanaugh it says have never been successfully confirmed. We don`t know if the past is prologue and if American voters will sway this particular Senate. As the saying goes around here, watch this space.

And that does it for this show tonight. I can mention that at 6:00 p.m. Eastern, I will be doing my show, "THE BEAT", and I have the Congressman Adam Schiff and former Republican Governor Christine Todd Whitman joining me. She now says since Helsinki, she`s determined Donald Trump is unfit for office.

Now, that is our show. I want to hand it over to "THE LAST WORD WITH LAWRENCE O`DONNELL".

Good evening, Lawrence.

END

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