Show: THE RACHEL MADDOW SHOW Date: August 16, 2018 ALI VELSHI, MSNBC HOST: One thing he said to me that he would like people to remember is that she had a great sense of humor and she was always curious. He recalled a time when she got him to buy a whole set of books related to the Harvard Business School curriculum so he could read them.
That`s it for this evening. "THE RACHEL MADDOW SHOW" starts now.
Rachel, I spent an entire hour after Aretha Franklin passed this morning with Stephanie Ruhle talking about her on TV. And for all the reasons to be thankful to Aretha Franklin, I didn`t stay name Trump for an entire hour.
RACHEL MADDOW, MSNBC HOST: Maybe her first blessing, at least to you.
VELSHI: For her last gift.
MADDOW: I got to say, that interview with Carole King and Rev. Al was so great. It just absolutely I`ve been listening to Aretha all day, at my desk and at work and at home. But I`ve been hearing people talk about it all day, but hearing Carole King and Rev Al talked about it that way in that interview was amazing.
VELSHI: As Rev. Al said, you watch other people, other performers, you feel Carole -- you feel Aretha Franklin.
MADDOW: Yes, I grew up in the San Francisco Bay Area and it`s always been the San Francisco music legend, the string of concerts that she did at the Fillmore, including bringing Ray Charles out of the audience at the Fillmore, bringing him up on stage, listening to that all day today, just weeping at my desk all day long. But even that`s more fun than saying "Trump."
Thanks, Ali. Congratulations on that.
VELSHI: Have a great show.
MADDOW: All right. And thanks to you at home for joining us this hour.
Boy, has there been a lot of news today. The jury in the Paul Manafort case met for just over seven hours today before they ultimately broke off deliberations and they passed a note to the judge overseeing the case. There were four questions for the judge on that note.
We`re going to get some expert advice in just a moment from somebody who used to be the lead federal prosecutor in that district -- the former U.S. attorney for the Eastern District of Virginia. We`re going to talk to that expert, the person who has had that experience. Because seasoned prosecutors who know the district, who know the judge, they can sometimes look at moments like that with the jury asking questions with those specific kinds of questions being asked, they can sometimes tell you what that might mean for how the trial is likely to turn out.
So, we`re going to have that coming up in just a few minutes. I am super curious as to what somebody who might know, would think about that development today with the jury today. So, I`m looking forward to that.
We know for sure tonight there`s not going to be a verdict in the Manafort case because the jury has gone home. That said, I can`t help myself. I can`t stop myself. Even though we know there isn`t going to be a verdict tonight and we still have to talk about the questions and everything, there is -- there is one thing I cannot stop myself from doing. I just want you to hear exactly how the oddly compelling judge in this case, how exactly he sent the jury home tonight, right?
I mentioned they have this day of deliberation and then they stopped and they gave him this note because they wanted to ask him these four questions. Well, they all came back into the courtroom and the judge answered their four questions. And then this is what happened next.
Ready? Quote: the judge: All right. Do counsel need to come to the bench for any reason?
Mr. Andres, the prosecutor: No, Your Honor. Thank you.
Mr. Downing, the defense lawyer: No, Your Honor.
The judge turns to the jury and says all right, ladies and gentlemen, I`m also advised that you would like to cease today at 5:30 p.m. and return tomorrow morning at 9:30. Am I correct?
The jury: Yes, Your Honor.
The judge: OK, I will do so. It is now 5:20 p.m. so we will recess. You will leave your books and everything here in that room. The court security officer already will lock everything up and maintain its security and then we will recess for the evening.
Now, it`s always been important and it continues to be extremely important that you not discuss the matter with anyone or undertake any investigation on your own by any means.
Put -- if you can, I will try and you should try, to put the matter out of your mind. I think it will be easier for me to do because I have a boring dinner tonight. I would tell you where it is, but some of you might appear there. It`s not even a restaurant. But put it out of your mind and I`ll see you tomorrow morning at 9:30. Thank you for your work in this matter.
And then the jury is dismissed.
The judge in this case is like, watching a parking lot where one person in the parking lot is trying to play bumper cars even though everybody is actually in a regular car. Like, what is he talking about?
I have a boring dinner tonight. It`s not even at a restaurant. You jurors might show up. What is he talking about?
I mean, I love court transcripts no matter what because I`m a dork but I am honestly going to miss these Judge Ellis transcripts more than the rest when this is all over.
OK. Speaking of when this is all over, once upon a time, last year, the president of the United States confessed in an interview that he had fired the head of the FBI not because of any of the reasons his White House had publicly cited for that firing, not because of recommendations from other officials, that was the official cover story.
No. He just flat out confessed that the official cover story wasn`t true. Actually, he fired the FBI director, he said in an interview, because the FBI was investigating whether Russia helped elect him and whether or not his campaign was in on that.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I was going to fire Comey. I -- there`s no good time to do it, by the way. If they --
LESTER HOLT, NBC NEWS AN CHOR: Because in your letter, you said, I accepted their recommendations. So you had already made the decision.
TRUMP: Oh, I was going to fire regardless of recommendation. He made a recommendation. He`s highly represented, very good guy. Very smart guy.
The Democrats like him. The Republicans like him. He made a recommendation.
But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself, I said, you know, this Russia thing with Trump and Russia is a made-up story.
(END VIDEO CLIP)
MADDOW: That actually happened a little more than a year ago. See, I mean, it was just -- it is surreal now but when it happened, it was just as surreal then as it still is now.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Back to James Comey, your staff has been insisting all week that you didn`t fire him because of his Russia investigation.
UNIDENTIFIED MALE: No. I didn`t.
UNIDENTIFIED MALE: Wait, what?
UNIDENTIFIED MALE: I fired him because of Russia. I thought, he`s investigating Russia. I don`t like that. I should fire him.
UNIDENTIFIED MALE: And you`re just admitting that.
UNIDENTIFIED MALE: Uh-huh.
UNIDENTIFIED MALE: But that`s obstruction of justice.
UNIDENTIFIED MALE: Sure. OK.
UNIDENTIFIED MALE: Wait, so did I get him? Is this all over?
No, I didn`t? Nothing matters? Absolutely nothing matters anymore? Fine.
(END VIDEO CLIP)
MADDOW: Michael Che and Alec Baldwin basically getting the truth more true than the truth.
But you know, we can`t, we have to refuse to believe that nothing matters. We can`t accept that nothing matters. Obstruction of justice is a thing. Presidents are not allowed to do that thing.
The only question we`re living through now is how this president might get stopped from doing it. I think that`s part of what we`re still sorting out as a country 15 months after the president really did just tell a reporter in a live interview that that is what he had done, that he fired the FBI director to obstruct an ongoing FBI investigation into him and his campaign.
That was 15 months ago. Now it has happened again. In a story that interestingly, the "Wall Street Journal" has sort of tried to bury online today, ever since they first published it. This is a heck of a scoop "The Wall Street Journal" has.
But they have already taken it off their front page. I don`t know why. But reporters Peter Nicholas and Michael Bender did get this scoop.
Here`s their report. Quote: President Trump drew a direct connection between the special counsel investigation into alleged Russian interference in the 2016 election and his decision to revoke the security clearance of former CIA Director John Brennan and review the clearances of several other former officials. In an interview, Mr. Trump cited Mr. Brennan as among those he held responsible for the Russia investigation. Brennan was director of the CIA and the Democratic administration of former President Obama and one of those who prepped evidence to Trump shortly before his inauguration that Russia had interfered in the 2016 election.
Mr. Trump said in the interview, quote: I call it the rigged witch hunt. It is a sham. And these people led it, he added. So I think it`s something that had to be done.
Reading this in the "Wall Street Journal," I feel like Michael Che, like OK, so we got him, right? This is all over, right? No? Nothing matters anymore?
John Brennan was White House homeland security adviser. He ran the National Counterterrorism Center under George W. Bush. He spent 25 years at the CIA, rising to become CIA director in 2013. In his capacity as CIA director, he was directly involved, personally involved with the initial response to the Russian attack on the 2016 elections. He ran the agency right through the 2016 elections until the day of Trump`s inauguration which is when he retired.
As such, President Trump never got the chance to fire John Brennan. But now, President Trump is admitting in black and white that the reason he has taken away Brennan`s security clearance was because of Brennan`s role in the Russia investigation.
Now, a lot of the reaction to this today is that this is unique. This has never really happened before. But this isn`t the same kind of admission of obstruction of justice that we saw in that NBC News Lester Holt interview about James Comey last year. James Comey, after all, was leading the FBI while the FBI was investigating the Russia issue. Firing him in the middle of that investigation might logically have had an effect on the investigation, since at the time he was head of that agency.
In contrast, John Brennan is already retired. And with the exception of Bruce Ohr, who still works in a senior role at the Justice Department, all of the other senior law enforcement and intelligence personnel who the president threatened and put on this list yesterday for security clearance revocation, they`re all prior officials now, too. They`re formers. They`re not running anything like Comey was running the FBI in the Russia investigation when Trump fired him.
And I got that distinction, but there is one part of this that you should know, which is what Brennan himself was saying right up until this whole thing blew up yesterday about how exactly he was using his security clearance these days.
(BEGIN VIDEO CLIP
JOHN BRENNAN, FORMER CIA DIRECTOR: I don`t know what`s going to happen. But, you know, they have a real flawed understanding that what the security clearances mean. I`ve gone back to the agency a number of times to review my files so I can be prepared for congressional committee hearings as well as interview by staff. But I have -- I don`t go back to the agency and get briefings. I`ve never requested a briefing on any issue over the past year and a half since I left government.
(END VIDEO CLIP)
MADDOW: What he has used his security clearance for is to go back to the agency a number of times on review his own files so he can prepare for congressional committee hearings and interviews by investigative staff. So everybody is saying this is a symbolic thing the president has done, right? Maybe it is troubling but it doesn`t necessarily have any material consequences for the ongoing investigation, or for the president`s legal fate.
But from the president`s perspective, think about this for a second. What if the practical effect of taking away a security clearance from a former official who was involved in the formative stages of the Russian investigation is that you interfere with that former official accessing his or her own notes and files? His or her own materials? From a former agency where those people worked, right? During their time working on the Russia investigation.
According to Brennan, that`s something you need to do and that you might employ your security clearance to do, if you`re going to be questioned on these matters as part of ongoing investigations. I mean, look at -- look at the list. Look at almost all the names on the list of people the president wants to do this to.
Brennan, CIA director during the Russia attack. Clapper, director of national intelligence during the Russia attack. Comey, director of FBI during the Russia attack. McCabe, deputy director of the FBI during the Russia attack. Strzok, head of counterintelligence at the FBI during the Russia attack. Susan Rice, national security adviser during the Russia attack. Sally Yates, deputy attorney general during the Russia attack.
I mean, security clearances may not be anything they`re using for their current work. But if they are stripped from their clearances or blocked the ever getting them again, what does that do to their ability to prepare for testimony and to testify if need be?
MADDOW: I mean, we have good reason after all to think that a bunch of these people might have important things to say, provided they can speak about classified material in a classified setting.
(BEGIN VIDEO CLIPS)
SEN. TOM COTTON (R), ARKANSAS: Do you think Donald Trump colluded with Russia?
JAMES COMEY, FORMER FBI DIRECTOR: It`s a question I don`t think I should answer in an open setting.
SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Ms. Yates, do you have any evidence? Or are you aware of any evidence that would suggest that in the 2016 campaign, anybody in the Trump campaign colluded with the Russian government and intelligence services in an improper fashion?
SALLY YATES, FORMER ACTING U.S. ATTORNEY GENERAL: And, Senator, my answer to that question would require me to reveal classified information. So, I can`t answer that.
SEN. ANGUS KING (I), MAINE: On the Flynn investigation, is it not true that Mr. Flynn was and is a central figure in this entire investigation of the relationship between Trump campaign and the Russians?
COMEY: I can`t answer that in an open setting.
SEN. CHRIS COONS (D), DELAWARE: On January 24th, you just testified that National Security Adviser Flynn was interviewed by the FBI about his underlying conduct. What was that underlying conduct?
YATES: Again, I hate to frustrate you again but I think we`re going to have to because my knowledge of his underlying conduct is based on classified information. And so, I can`t reveal what that underlying conduct is.
SEN. RICHARD BURR (R), NORTH CAROLINA: At the time of your departure from the FBI, was the FBI able to confirm any criminal allegations contained in the Steele document?
COMEY: Mr. Chairman, I don`t think that`s a question I can answer in an open setting.
SEN. RON WYDEN (D), OREGON: What was it about the attorney general`s own interactions with the Russians, or his behavior with regard to the investigation that would have led the entire leadership of the FBI to make this decision?
COMEY: Our judgment, as I recall, is that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can`t discuss in an open setting that would make his continued engagement in a Russia related investigation problematic.
YATES: I can`t confirm whether in fact those conversations regarding sanctions occurred, because that would require me to reveal classified information.
SEN. DIANNE FEINSTEIN (D), CALIFORNIA: "The Guardian" has reported that Britain`s intelligence service first became aware in late 2015 of suspicious interactions between Trump advisers and Russian intelligence agents. This information was passed on to U.S. intelligence agencies. Over the spring of 2016, multiple European allies passed on additional information to the United States about contacts between the Trump campaign and Russians.
Is this accurate?
YATES: I can`t answer that.
FEINSTEIN: General Clapper, is that accurate?
JAMES CLAPPER, FORMER DIRECTOR OF NATIONAL INTELLIGENCE: Yes, it is, and it`s also quite sensitive.
FEINSTEIN: OK. Let me ask you this.
CLAPPER: The specifics are quite sensitive.
REP. ERIC SWALWELL (D), CALIFORNIA: Director, there is what is referred to as consciousness of guilt evidence. That`s when somebody lies about a material fact and that fact, the fact of them lying can be used against that person because it would be in essence an effort to cover up what happened. Meaning, if, you know, you were telling the truth, you wouldn`t have anything to cover up.
With respect to some of the contacts that you`ve referred to between Russia and Trump campaign officials, are you aware of any of those U.S. who had contacts with Russia either making false statements about those contacts or failing to disclose those contacts?
BRENNAN: I think that`s something that you can pursue in closed session.
(END VIDEO CLIPS)
MADDOW: This list of people the president is targeting in terms of taking away their security clearances, that would of course wall them off from here on out from any classified information. Given what they know from their previous involvement in the Russia investigation, as senior law enforcement and senior intelligence officials, that might end up being a really important thing if and when this whole scandal ever gets adjudicated, whether it`s adjudicated in a court of law or an impeachment proceedings or whatever.
I mean, keep in mind, when the president blurted out to the "Wall Street Journal" in this interview that he made this list of targets, and he went ahead and revoked Brennan`s security clearance because of the Russia investigation, he didn`t tell "The Wall Street Journal" he did that because he doesn`t like John Brennan`s recent criticism of him or any of these other people recently having spoken against them. He said explicitly, the reason he did it is because they had a role back in the day leading the Russia investigation. What he called the rigged witch hunt.
He is not after his critics. He is after the witnesses. "The Washington Post" reports just tonight that the president is gearing up to strip more security clearances from more people on his list.
And then there is this.
(BEGIN VIDEO CLIP)
CLAPPER: The other question that I have is, where does this end? What is to stop President Trump from, say, suspending the eligibility for access to classified information of Bob Mueller and his entire team? And they have to -- they have to -- they can`t operate without access to classified information.
(END VIDEO CLIP)
MADDOW: James Clapper, long time director of national intelligence, he is facing having his own security clearance revoked by the president. He raised the prospect immediately upon getting this news last night that what the president is doing here opens the door to him yanking security clearances from special counsel Robert Mueller and his team of prosecutors and investigators.
And if you look at the Mueller indictments thus far, particularly the ones against Russian intelligence and other Russian operatives, it seems way more than likely that the people working in the special counsel`s office have had to have clearances in order to do their work as prosecutors on this case.
Senate Intelligence Vice Chairman Mark Warner is now raising the same alarm.
(BEGIN VIDEO CLIP)
SEN. MARK WARNER (D), VIRGINIA: I guess, to me, this had an eerie memory of an enemy`s list. These people are being singled out to have clearances revoked or in the process of being revoked, to me smacks of Nixonian type practices of trying to silence anyone who`s willing to criticize this president.
Finally, I worry whether this precedent is going to somehow lead to the president trying to take away Mueller and his whole team`s security clearances. This is clearly another effort to silence critics and not allow the Mueller investigation and for that matter our Senate Intelligence Committee investigation to get to the bottom of this.
REPORTER: Do you think they`re going to after the Mueller investigation?
WARNER: Listen, I -- there would be nothing this White House would do that would surprise me at this point.
(END VIDEOI CLIP)
MADDOW: The security clearance raid here, this is not just talk from the president. This is action by the president. And number one, it may really have legal consequences if he is targeting witnesses. If the people he`s targeting are going to be witnesses in the investigation or in future investigations or impeachment proceedings. Walling them off from classified information may affect their performance as witnesses.
Also, since no other president has done anything remotely like the before, we don`t know where this will end now that he has started it. If the "Washington Post" is right tonight, Brennan was just the first one, he was just the one to break the glass to get us all prepped for more to come.
The number two senator on the Intelligence Committee and the immediate past director of national intelligence are both warning that yanking security clearances from Mueller`s team is as much in line with what the president has just done as anything else. Why wouldn`t he do that?
But I think it`s also worth considering, finally here, that the response to what`s going on right now may end up being just as historic as the action itself.
John Brennan himself punching back with brass knuckles on today in this op- ed in which he uses a neat little double negative. The president`s claims of no collusion are hogwash. Do you see the double negative? He says there was no collusion? Well no, to that no. That denial is bunk. The collusion happened.
He says, quote, the only questions that remained are whether the collusion that took place constituted criminally liable conspiracy, whether obstruction of justice occurred and how many members of Trump Incorporated attempted to defraud the government by laundering and concealing money movement into their own pockets.
The collusion, that took place. John Brennan is apparently not cowed in the least by the president going after him in this unprecedented way that he has. We will hear more from John Brennan at this time tomorrow. John Brennan is going to be here live in studio with me tomorrow for an extensive interview. It`s his first live TV interview since this whole thing broke open.
But as I said, the response to what has just happened to Brennan and this list that the president has created, the response may end up being as much a part of history as the rest of this, including this. This remarkable gauntlet thrown down by Admiral William H. McRaven. This guy with super hero name, the legendary commander of JSOC, special operations command, including overseeing the operation that infiltrated a Navy SEAL team into Pakistan to kill Osama bin Laden.
This is not someone you would expect to weigh in on any political matter whatsoever. But oh, my God, has he.
Quote: Dear Mr. President, former CIA Director John Brennan whose security clearance you revoked on Wednesday is one of the finest public servants I have ever known. Few Americans have done more to protect this country than John. He is a man of unparalled integrity whose honesty and character have never been in question except by those who don`t know him.
Therefore, I would consider it an honor if you would revoke my security clearance as well so I can add my name to the list of men and women who have spoken up against your presidency.
Like most Americans, I had hoped when you became president, you would rise to the occasion and become the leader this great nation needs. A good leader tries to embody the best qualities of his or her organization. A good leader sets the example for others to follow. A good leader always puts the welfare of others before himself or herself.
Your leadership however has shown little of these qualities. Through your actions, you have embarrassed us in the eyes of our children, humiliated us on the world stage and worst of all, divided us as a nation.
If you think for a moment that your McCarthy era tactics will suppress the voices of criticism, you are sadly mistaken. The criticism will continue until you become leader we prayed you would be.
That`s the whole thing. I would consider it an honor if you would revoke my security clearance, as well, Mr. President, so I can add my name to the list of men and women who have spoken out against your presidency.
We covered the security clearance raid by the president last night as something that I said sort of did have echoes of Nixon`s enemies list from 47 years ago. When the Nixon enemies list was finally exposed 45 years ago, it became a public point of pride in the Watergate era, right? It became an honor to be hated and illegally targeted by this disgraced president before he was forced from office.
I said last night during our coverage that the Trump list of enemies, first published by the White House yesterday, that might eventually be treated the same way.
Now with this from Admiral McRaven, I have to admit that I did not think it would take less than a day.
Honestly, I just want to add to -- I don`t know what happens after this. I mean, I know the next step here is that the president and presumably the Fox News Channel will now start to try slime Admiral McRaven, the Special Operations commander, because of what he`s done. I know that inevitably will be what happens next.
But for the life of me in all honesty is, I don`t know what happens after that. And when you`re talking about going after Admiral Bill McRaven? I honestly don`t know what happens once they inevitably start to go after him, too.
MADDOW: If Paul Manafort`s defense lawyers could wave a magic wand, they would probably use it to mind meld the jury into thinking about one person and one person only as they try to decide whether to convict the president`s campaign chair on 18 counts of federal felonies. But it`s probably not who you think it is. It wouldn`t be the star witness, Rick Gates. I don`t think it would be the president, Donald Trump.
I think if Paul Manafort`s defense lawyers could get the jurors to think about just one person, it would be special counsel Robert Mueller. The reason it seems that way is because yesterday, Paul Manafort`s defense lawyers kept bringing him up all over the place even when they weren`t supposed to. This is from their closing argument.
Quote: So, ladies and gentlemen, we need to take ourselves, now you`ve got all the evidence and pull the lens back and begin to re-examine what`s going on here. What have you seen? Why has the case been presented by the government the way that it has?
Well, let me start out by saying there are obviously a lot of charges of bank fraud. You`re familiar with those now. Mr. Andres, the prosecutor, went through those. You heard testimony about them all. There`s not a single bit of evidence that any of the banks came to the government and complained about a fraud.
These are frauds that were discovered in the course of the special counsel`s investigation of Mr. Manafort. They claim they`re frauds, but this is basically a group that has come along and looked at every financial angle, pored through documents and tried to find any place that something doesn`t match up and they`ve done a good job of selectively pulling that information together, but it has been a selection.
Quote: To the extent that you have a problem at a bank, there`s a process. Well, nobody went through with that process. Nobody came forward and said, we`re concerned about what we`re seeing here. Not until the special counsel showed up and started asking questions.
Ladies and gentlemen, I submit to you if this were fraud, we would have courts across the country filled with bank frauds. People do not get prosecuted by typical Justice Department prosecutors when what they`ve done is had some issue about whether their property is being rented or personally owned and it changes. This is part of that going through each piece of paper and finding anything that doesn`t match-up to add to the weight of the evidence against Mr. Manafort.
Not until the special counsel showed up and started asking questions. It`s interesting. That is actually not an argument the defense was allowed to make to the jury. But they did it anyway. They kept bringing their closing argument back around to the special counsel.
Normal prosecutors wouldn`t bring this. The only reason this even turned up is because this special team going through all this stuff trying to nail him. It`s just because the special counsel`s office is doing this.
They weren`t supposed to make that argument to the jury and they did it anyway. After they did it anyway, the judge in the case tried to make the jury pretend they had never heard any of that because they weren`t supposed to. The judge ended up instructing the jury to ignore any argument about the Department of Justice`s motives or lack of motives in bringing the prosecution.
So, we don`t know if the jury was thinking about the Department of Justice or the special counsel as they deliberated for seven hours and 15 minutes today. We do know they caused a lot of excitement when they sent a note to Judge Ellis with four questions. Two really technical questions about financial terms, one sort of provocative question about reasonable doubt. Also, a request to have the indictment added to the exhibits.
By the way, here`s something to look forward to. Today, Judge Ellis said he`s actually going to make the jury`s physical note a part of the public record. So, we will get to see their note as well, which probably means I will act it out.
But after their first seven hours and 15 minutes of deliberations today, what should we read into the jury`s questions, if anything? And should we be thinking about how this one is going to ring for all the other cases that are connected to it? We know that Manafort`s defense team is going to be representing him at his next federal trial in D.C. next month. That one is already chugging along. There was activity in that case today.
Frankly, tomorrow, the special counsel is due to be back in court giving the court their sentencing recommendation for good old George Papadopoulos as well. As all of these things move forward on different tracks, do they start to interact? And what do we make of those questions from the jury?
Hold that thought.
MADDOW: Joining us now is Chuck Rosenberg, former U.S. attorney in the Eastern District of Virginia where the Paul Manafort trial is taking place, also a former Justice Department and FBI official.
Mr. Rosenberg, thank you for being here.
CHUCK ROSENBERG, FORMER U.S. ATTORNEY: My pleasure.
MADDOW: The jury came back after deliberating for just under eight hours today and they had four questions that they posed to the judge in note form. First of all, do juries often ask questions of a judge early on in the deliberations?
ROSENBERG: They ask questions all the time. It is reasonably common for jurors to ask questions and always in note form.
MADDOW: And that doesn`t necessarily or does that necessarily indicate good news or bad news for the defense or prosecution?
ROSENBERG: So, it`s a parlor game, right?
ROSENBERG: We have little information to go on, so we over-index on the information we have. And everyone, we study the notes and we look at their faces when they walk back if and we try to divine some meaning from notes and faces and dress and all those things that really provide little meaning.
MADDOW: OK. So, we do know the content of the four questions. The jury asked, not in order but they asked for a definition of reasonable doubt.
ROSENBERG: Which is a very common question, by the way.
MADDOW: Really? Why is that?
ROSENBERG: Because it is not apparent what reasonable doubt is particularly to the lay men and women on a jury. So, if I had to pick one question that gets asked the most often, it`s probably, what the heck is reasonable doubt?
MADDOW: The defense counsel talked about reasonable doubt a lot in their closing arguments, to the point where they made a chart that showed you all the places where you might find reasonable doubt. I think a lot of people therefore saw it as a sort of victory for the defense that the jury was asking about that term in particular because they made it such a center piece.
ROSENBERG: Fair enough, but here`s what I want to know. Is it one juror hung up on one count on a reasonable doubt question? Is it 11 jurors hung up on reasonable doubt on 18 counts? Because the answer to those two questions matters a lot.
But I`ve had that question in my trials time and time again. Not every time but time and time again. And I think in every case we ended up with a conviction.
ROSENBERG: That doesn`t mean we`ll have one here, but I wouldn`t overindex on it.
MADDOW: In terms of the other questions from the jury, one of the things they asked and this has been discussed, sort of fought over in court before the jury got the case, was whether or not the indictment itself is something that the jurors could look at, whether it would be an exhibit that they could review as part of their deliberations, and they asked, please, could they have a copy of the indictment and the judge ultimately said no.
ROSENBERG: Well, I think they`re going to get a copy of the indictment. My understanding of what they wanted was tell us of all these exhibits that are now in trial and sitting on a big stack on our desk in the jury room, which exhibits go to which counts.
MADDOW: So they wanted the indictment essentially as an index?
ROSENBERG: And this is one of the reasons why during the trial, prosecutors want the judge to permit them to show the exhibits to the jury during trial. We call it to publish it. So, there was some confusion about whether or not the judge had admitted stuff, he had, and whether he would permit the government to publish it to the jury and he did not.
And now, you`re seeing the ramifications. The jurors want a road map. What stuff goes to what count? And --
MADDOW: See? That -- this helps me in terms of the way we`ve been reporting this. We focused a lot on the intrigue around the Federal Savings Bank and the supposed job offer to the secretary of the army, to the CEO of that bank, and a lot of most provocative physical evidence that we saw, e-mails and such, including one to Jared Kushner where he said he was on it in terms of that job recommendation, we could -- we knew that we could see those pieces of evidence because they were published by the court.
We couldn`t tell if the jury had seen them. And it was the judge`s decision you`re saying to not show that stuff to the jury during the course of the trial. They`ve got it now. And so, now, they don`t know which count maps to.
ROSENBERG: Now, they`re trying to sort through it and map it, perfect word. And he properly refused to map it for them because then he would be putting his seal of approval to his imprimatur, if I`ve even pronouncing that word right, on to each of those exhibits and telling the jury which counts to consider them for. So, he says you have the stuff, you have the indictment, you have the exhibits, sort it out.
MADDOW: Wow. Giving them extra work.
I know that you`ve -- I have a feeling I know how you`ll answer this but when you were talking about us overindexing from the information that we have sort of extrapolating too much from the little bit of data that we have, is your best counsel here that we should stop trying to figure out what the jury is going to say and just wait? Or is there anything we should actually look for?
ROSENBERG: Look, it`s interesting. And when you`re waiting on the jury which, by the way, is an agonizing time for everybody involved, it`s inevitable. It`s unavoidable that you do this. I found you really can`t tell.
I mean, if they send a note that says we are hopelessly deadlocked, that`s a pretty good sign. Short of that, it really is tea leaves.
MADDOW: I will keep reading them despite myself --
ROSENBERG: So will I.
MADDOW: Chuck Rosenberg, former U.S. attorney in the Eastern District of Virginia, former senior FBI and Justice Department official, invaluable asset for us here. Thank you, Chuck.
ROSENBERG: Thank you.
MADDOW: All right. We`ll be right back. Stay with us.
MADDOW: The days leading up to Brett Kavanaugh`s confirmation hearing for the Supreme Court have been marked in large part by a big fight over access to his records, documents from his time serving in the George W. Bush White House. Democrats are very upset that most of those papers and records from Kavanaugh`s time in the Bush White House aren`t being made available to the Senate.
Well, late today, three senior Senate Democrats suggested that the papers they have seen indicate that Brett Kavanaugh gave misleading testimony. That he did not tell the truth under oath the last time he was up for confirmation in the Senate which was 2006 in his confirmation hearing for a seat on the D.C. Court of Appeals, which is where he sits as a judge now.
Not telling the truth under oath in an earlier confirmation hearing, that`s the kind of thing that would sink any number of nominees. Even for minor jobs. The Senate really as an institution doesn`t like being lied to, particularly under oath.
When it comes to a Supreme Court nomination, it`s almost -- it`s completely unheard of, but it`s definitely getting close to unbelievable that the Senate might move forward without fully examining whether or not this nominee lied to the Senate Judiciary Committee the last time he sat before them.
Beyond sifting through records from his past, and that question of his last confirmation, though, there is also now, of course, a search for clues about what kind of justice he`d be, how he`d rule on the most divisive issues in the country. On that front, we haven`t had many clues because Judge Kavanaugh is very careful with his public statements.
But tonight, we do have one. It`s a bit of a scoop. And that is coming up next.
MADDOW: OK, here`s a piece of tape that I don`t think many people have seen. It`s from not that long ago. This is from a speech that Brett Kavanaugh gave in 2016, two years ago, at an event honoring the late Justice Antonin Scalia, a few months after Scalia died.
In the course of his remarks, judge and now Supreme Court nominee, Brett Kavanaugh, brought up two landmark Supreme Court cases. The first one was Planned Parenthood v. Casey, which affirmed the right to have an abortion and also allowed states to impose some limits on that right. Planned Parenthood v. Casey is sort of part two of Roe versus Wade. That case is a quarter century old now.
But the other case he cited is much more recent, Obergefell versus Hodges. That`s the case that ruled that same sex couples in this country have the same right to get married that straight people have. Justice Scalia dissented in both of those cases. He voted against the ruling to affirm abortion rights and he voted against an equal right to marriage.
So, what you are about to hear is Brett Kavanaugh talk about those two Supreme Court rulings and specifically Scalia`s dissents. If you are wondering how Brett Kavanaugh might vote if abortion rights or marriage votes came before him at the Supreme, here more clearly than anywhere else we have found he spells it out.
Again, he is talking about Scalia`s dissent here, Scalia`s dissent against abortion rights, Scalia`s dissent against marriage rights. Watch what Kavanaugh says about that.
(BEGIN VIDEO CLIP)
JUDGE BRETT KAVANUGH, D.C. CIRCUIT COURT OF APPEALS: Justice Scalia was a fierce guarantor of individual rights articulated in the Constitution and he was not afraid, never afraid to use his judicial role to upend even seemingly settled practices that infringed on those rights. No deference there.
But on the flip side, courts have no legitimate role, Justice Scalia would say, in creating new rights not spelled out in the Constitution. On those issues, he believed in complete deference to the political branches in the states. Deference not for the sake of deference but deference because the Constitution gave the court no legitimate role in the case.
Think about his dissents in Casey on abortion and Obergefell on same-sex marriage. His opinions on the constitutionality of the death penalty in response to the abolitionists` positions articulated by some of his fellow justices over the years.
For Justice Scalia, it was not the court`s job to improve on or update the Constitution to create new rights.
(END VIDEO CLIP)
MADDOW: What Kavanaugh is suggesting there is that Scalia was right to say no in both those cases, those so-called new rights don`t actually apply here in this country, which could extend to a lot of modern life, if you think about Kavanaugh`s remarks about Scalia, giving us sort of more than a hint as to how he would vote on those two issues and what legal reasoning he would use.
I mean, supporters of reproductive rights have already been warning that a Justice Kavanaugh would definitely mean the end of Roe versus Wade. This recording would suggest that as clear as anybody might feel about that, you should probably feel as clear about what a Justice Kavanaugh would mean in terms of same-sex marriage rights.
The warnings are having an effect, it should be noted, particularly on the reproductive rights issue. The latest polling shows that the percentage of Americans who would like to see him confirmed to the court is only 37. The percentage of Americans who would not like to see him confirmed is 40. That means net support of negative 3 percent. That puts him right smack dab between past nominees like Robert Bork who was voted down and Harriet Miers who had to withdraw because she wasn`t going to get confirmed.
Better off than Bork is not a great place to be. But the constituency that`s really, really dragging Brett Kavanaugh down in this latest poll and all recent polls is women. The percentage of women in America who want Brett Kavanaugh to be confirmed at the Supreme Court is 28 percent, less than three in ten women across the country want to see him on the bench.
For all the super important fighting that`s now going on over access to Kavanaugh`s records, this is the kind of public fight, this nominee presumably knows he`s walking into, right? But with that much public opposition based on policy, there`s no reason to think that the Kavanaugh nomination should be anything close to easy.
MADDOW: Two things to keep on eye on tomorrow`s news that you might not otherwise know about. First of all, George Papadopoulos. The Trump campaign foreign policy advisor, the guy who put model U.N. on his resume, he pled guilty to lying to federal officials. He`s apparently been cooperating with prosecutors ever since.
It was his apparent advanced knowledge of the Russian government`s hack of Democratic e-mails that started the FBI`s Russia investigation in the first place in the late spring, early summer of 2016. Well, tomorrow, big day for George Papadopoulos. The government is due to tell the court how much time he should get, what they are recommending in terms of his sentence.
Now, part of the drama here is that his wife, who appears to play a key role in the whole drama of George Papadopoulos and the Russians and his contact with the Trump campaign and all the rest of it, she has recently been making noises that George Papadopoulos might need a new lawyer and that his plea agreement might be a bad deal with the government that should be torn up.
Most people believe if George Papadopoulos tries to tear up his plea agreement with the government at this point, that would essentially be a legal act of -- I don`t want to say suicide, but it would be -- it would be an own goal on the part of George Papadopoulos. But it does inject a little bit drama into these court proceedings tomorrow when we will wait to see if the plea agreement survives and how much time the government suggests he should get if it does survive. That`s one thing.
Also, I mentioned on the top of the show we`re going to have a big night tomorrow night. We`re going to be joined tomorrow night by John Brennan, who is today the author of this incredible op-ed in "The New York Times", calling the president`s claims of no collusion, quote, hogwash.
John Brennan will be here tomorrow for his first live TV interview since the president revoked his security clearance. Former head of the CIA, now a senior national security and intelligence analyst on this network, he will be here live in studio with me tomorrow night at 9:00 p.m.
That does it for us tonight. I will see you again tomorrow night.
Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".
Good evening, Lawrence.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END
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