Show: THE RACHEL MADDOW SHOW Date: August 22, 2018
You may have heard the news today about a new subpoena for the president`s personal lawyer, Michael Cohen, the same Michael Cohen who pled guilty yesterday to eight felony charges in federal court in New York.
Michael Cohen did get a new subpoena today. It is a surprise. Michael Cohen reportedly reacted to that subpoena in a surprising way. I will get to that in a second.
But I want to talk about that subpoena here right at the top of the show tonight because I think you should know that it might be more than meets the eye. It might be very important in terms of what`s about to happen next and the pressure and specifically the legal pressure that is being brought to bear on the president of the United States.
All right. So, here`s how it came to be. In May of this year, May 22nd, "The New York Times" had a scoop that they probably only got because they are specifically "The New York Times." "The New York Times" sent crack reporters to an otherwise sleepy courthouse in Albany, New York, not a federal courthouse, a state court, because that day in that state court in New York, a long-time business partner of Michael Cohen`s, a taxicab mogul named Gene Freidman who everybody called the "taxi king", he was in court.
He had been facing really serious charges in New York, tax evasion on a grand scale, more than $5 million of tax evasion. Also, four felony counts of criminal tax fraud. He was facing a charge of grand larceny. It`s a big stack of charges involving a large amount of money and potentially a ton of jail time.
And the big story that "The New York Times" uncovered at the courthouse that day, was that for some reason, Gene Freidman had managed to get this huge criminal liability he was facing winnowed down to almost nothing. He was able to work out some sort of deal where all of that prison time and all of those felonies just evaporated.
Instead of being tried for evading $5 million in taxes, prosecutors let him plead guilty to one count of evading $50,000 worth of taxes. Not $5 million, but $50,000? Instead of decades in potential prison time the deal he cut with prosecutors got him zero prison time. That`s a deal. I mean, people do plea deals all the time in which they offer their testimony for prosecutors in exchange for prosecutors letting them off the hook and going a little easier on them. But this was like the mother of all plea deals.
I mean, the amount he was able to offer them in terms of cooperation must have been very, very valuable to the government given how sweet the deal was he got from them in return. So, that happened in late May. Great catch by the "New York Times," super intriguing story, a really good reminder that it`s always good journalistic practice to just hang out at the courthouse and see what happens.
Since then, we haven`t known what`s going on with Gene "the taxi king" Freidman and his sweet plea deal and his potential cooperation with prosecutors. We got a hint from the "Wall Street Journal" when they reported that Gene Freidman, the taxi king, and Michael Cohen, hadn`t just been business partners in the taxi business, they had shared an accountant. And "The Wall Street Journal" reported at that same time that that will accountant had been subpoenaed by federal prosecutors.
Well, now, we see where that was heading. In this list of charges which Michael Cohen pled guilty yesterday in federal court, you can see where all of that stuff over the past few months may have been leading. The financial charges and tax charges that Cohen pled guilty to yesterday are in large part about his work in the taxi business, the personal loans, the cash transfers, illegal banking tricks that can be boring to describe if you`re looking for a kind of cops and robbers story, but they can be very easy for prosecutors to prove once they`ve got the paperwork to prove it. And if they`re really lucky, if they`ve got the testimony of an accountant and a business partner to explain whatever documentation they can get from the banks.
So, for obvious reasons, there has been intense national and political focus on the final two charges that Michael Cohen pled guilty to yesterday, those were the campaign finance charges in which he remarkably directly implicated the president of the United States as his criminal co- conspirator, as the person who, in fact, directed him to commit those crimes. But all of the other charges that got Michael Cohen into that courtroom in the first place yesterday appear to have derived from the financial case involving him and his taxi business, and that case appears to have derived in significant part from that little courthouse story out of Albany.
The New York state attorney general and the New York State Tax Department bringing a big criminal case against Cohen`s partner in the taxi business and flipping him like a flapjack in sleepy little state court in Albany, New York, three months ago today. The law enforcement official who made that happen is somebody you might not know. Her name is Barbara Underwood.
You probably remember the previous attorney general in the state of New York. He was very high profile. He ended getting turfed out of office in a very ugly scandal involving serious allegations of sexual abuse and sexual misconduct. His name was Eric Schneiderman and he aggressively pursued a national profile.
But when he imploded, New York state lawmakers decided they would have the solicitor general from the state of New York slide over into Schneiderman`s office and become the temporary acting A.G. I think they were they were thinking, we need a legal, legal, we need a legal official. Solicitor general, she argues cases. Can she take over for a second?
I don`t even know if the New York state lawmakers in their famous fecklessness even had any idea exactly what they had just done when they picked Barbara Underwood. I don`t know if they understood exactly who this was they were putting in the attorney general`s office in their state. But honestly, Barbara Underwood is a bigger deal than any of them.
Barbara Underwood is freaking impressive. She has argued 20 cases before the Supreme Court. She was magna cum laude at Harvard. She was first in her class at Georgetown Law School. She was a clerk for Thurgood Marshall, yes, that Thurgood Marshall. She taught for years at Yale Law School.
She became acting solicitor general of the United States in 2001. That made her the first woman to ever hold the solicitor general title in this country. She`s been a lead prosecutor in multiple jurisdictions, including serving as the chief district attorney in the Eastern District of New York through a lot of their blockbuster gangland cases.
She has an impeccable reputation and lifelong record and she has nothing to be messed with. She`s totally unassuming. She was 74 years old, when she suddenly became New York state attorney general, the papers were like, we don`t have any pictures of this person.
But she stepped in that role in the midst of crisis and she did not miss a step. I know what you`re thinking, oh, this is fascinating, Maddow, great. Now, I have an interesting biographical sketch, of the appointed attorney general of New York. If it comes up at pub quiz, I`ll win and cash prizes. Why do I care?
All right. How does this fit into this crisis that the whole country appears to be in right now, particularly around the president possibly being a crook and/or a foreign agent and what we`re going do about it? There is where that goes. I mean, biggest of big picture here is that scandal surrounding the president, right, which different than any other scandal any president has ever faced.
The scandal -- the absolutely unprecedented scandal surrounding this particular president boils down to two main things, right?
Number one, Russia. When Russia interfered in our election to sway it in Donald Trump`s direction, did Donald Trump and/or his campaign conspire with Russia to help them do that? That`s one part of it. Absolutely unprecedented.
The other part of it, separate and potentially unrelated is whether scrutiny of this president brought on by the Russia investigation or just by the normal scrutiny that comes with being president is going to end up turning up business and financial dealings, including during the campaign that could represent serious criminal liability for this president, for his campaign, even potentially for his family, right?
That`s the two sides of the unprecedented nature of the scandal that will surrounds this president. The Russia scandal and the worries about his business and financial scandal.
And that brings us back to Barbara Underwood. So, a month after she flipped Gene "the taxi king" Freidman, securing his cooperation with prosecutors in exchange for lenience in the charges against him, which ultimately looks like it led to the conviction of Michael Cohen yesterday, or the guilty pleas for Michael Cohen yesterday, just one month after she flipped Gene Freidman, Barbara Underwood filed a civil lawsuit, this lawsuit, on behalf of the people of New York against President Trump`s charitable foundation.
You can see there at the top, the people of the state of New York by Barbara D. Underwood, attorney general of the state of New York, against Donald J. Trump, Donald Trump Jr., Ivanka Trump, Eric F. Trump and the Donald J. Trump Foundation.
Quote: For more than a decade, the Donald J. Trump Foundation has operated in persistent violation of state and federal law. This pattern of illegal conduct by the foundation and its current members includes improper extensive political activity repeated and willful self-dealing transactions and failure to follow basic fiduciary obligations or to implement even elementary corporate formalities as required by law. Lawsuit filed by Barbara Underwood against the Trump Foundation, alleging that before Trump ran for president, he used his foundation as a fake charitable enterprise that really only benefited himself.
Once he started running for president, according to this lawsuit from Barbara Underwood, he basically converted his foundation into a fake charitable foundation that didn`t just benefit himself anymore, now, it was a vehicle for making illegal campaign expenditures on behalf of his campaign for president. When she filed that lawsuit in June, a lot of the allegations that she made against Trump`s foundation were familiar, particularly to anybody who followed David Fahrenthold`s Pulitzer Prize winning reporting in "The Washington Post" in which he had doggedly catalogued the not-at-all charity like finances of Donald Trump`s supposed foundation.
But in this lawsuit, Underwood added some very specific evidence, including dropping pictures of some of it right into the text of the lawsuit. For example, she put in stuff like this handwritten note. See that on the right side of your screen there. It`s handwritten on Donald J. Trump`s stationary, written in Donald J. Trump`s very recognizable handwriting, his signature all caps style written with a sharpie to Allen W., Allen Weisselberg, the money guy at the Trump Organization.
He apparently was listed as the treasurer of the Trump Foundation for a decade without even knowing he was listed as such until he got deposed by Barbara Underwood`s investigators and he was like I`m what now? I`m the treasurer. I`ve been the treasurer for how long? Nobody told me.
But there`s this note in the lawsuit. Allen W., Donald J. Trump Foundation, $100,000 payment to Fisher House. And in parenthesis, it says, what for? Settlement of flag issue in Palm Beach. OK, signed D.
Donald Trump`s private club, Mar-a-Lago, in Palm Beach had been sued for violating local zoning restrictions having to do with is flagpole. When that lawsuit got settled, and Trump had to pay money to settle that lawsuit, Trump said pay that out of the charity funds. That`s not coming out of my pocket. You cannot use your charity for that.
But Barbara Underwood caught him doing it. Barbara Underwood files this blistering lawsuit with lots of evidence including literally embedded in the text of the lawsuit, a civil lawsuit she brings in New York state, but she forwards all this evidence she gathered to the IRS, for them to investigate as potential criminal tax matter. She forwards it to the Federal Election Commission for them to investigate it as a potential set of criminal campaign finance violations. She CCs it to the public integrity division at the U.S. Justice Department.
And within New York state, the state tax department starts investigating that evidence as well as laid out by Barbara Underwood to see if in addition to the civil lawsuit there should be a state criminal referral against the Trump foundation and President Trump personally and each of his three eldest children personally. And that is where the subpoena came from today for Michael Cohen. The tax department in New York state has subpoenaed him to testify as they investigate whether that is going to become a criminal case.
Now, I said right off the top Michael Cohen had an unexpected response to that subpoena. This is from "The Daily News". This is fascinating. Here`s how "The Daily News" explains how that went down.
Quote: The state tax department investigating President Trump`s charitable foundation today issued a subpoena to Trump`s former personal lawyer, Michael Cohen and it received an immediate response. A source with direct knowledge of the situation tells "The Daily News" that shortly after the subpoena went out, Michael Cohen personally contacted the tax department to talk. The source would not say what the response was from the tax department but typically in such cases where someone has a lawyer, investigators deal with their counsel and not directly with the person.
So, in New York state, the attorney general, Barbara Underwood, and the tax division in the state, they`re the one who`s brought these devastating charges against Gene Freidman, the taxi king, right? Threatening him with decades in prison, $5 million in tax evasion, all these multiple felonies. They put that pressure on him squozed him, flipped him. It appears that cooperation deal probably led to the felony charges that Michael Cohen just pled to. Boom.
Now, the same dynamic duo, New York`s Attorney General Barbara Underwood and the tax division in New York state they are now investigating the Trump foundation, Trump`s supposed charity for a potential criminal referral. We know they have a ton of evidence because Barbara Underwood laid it out in her civil case. That is the origin of the subpoena for Michael Cohen today.
And according to "The Daily News", he responded to that subpoena immediately by personally calling back the tax department to the point where the tax department didn`t even know how to deal with it. We`re assuming you have a lawyer, sir? No, you want to come right in? Okay. Do you want us to fix you a sandwich or anything? You`re right outside? All right.
Michael Cohen pled guilty to eight felonies yesterday. He`s out on bail today. And that thing that started yesterday at almost exactly the same moment Trump`s campaign chairman was being convicted of eight felonies, Trump`s personal lawyer, Michael Cohen pleads guilty to eight felonies and personally implicates the president in the criminal behavior to which he himself is pleading guilty. That all started yesterday.
But Cohen is still out on bail. And so, apparently, it`s still unfolding today. Again, in this lawsuit brought by the New York attorney general, that case is brought against Trump`s foundation, Trump himself, and Ivanka, Don Jr. and Eric Trump. They`re all named explicitly in that case.
In the lawsuit, Underwood accuses Ivanka, Don Jr. and Eric of, quote, abdicating all responsibility for insuring that the foundation`s assets were used in compliance with the law. I mean, if that case is going to become a criminal matter and that`s in process here, if it`s going to be a criminal case and not just a civil lawsuit by the state of New York, that could end up being a very serious matter for not just Trump`s charity and the president himself but also for his three eldest children. We should also note because it`s a state case, there won`t be any way to pardon people out of jeopardy in that case. You can only pardon someone if you`re president for federal crimes.
But there are also serious allegations about the Trump campaign in this same lawsuit. From the lawsuit, quote: In 2016, the board knowingly permitted the foundation to be co-opted by Mr. Trump`s presidential campaign. Mr. Trump`s political committee extensively directed and coordinated the foundation`s activities.
Quote, the foundation ceded control over the grants to the campaign, making an improper, in-kind contribution of no less than $2.823 million to the campaign. Quote: The foundation`s grants made Trump and the campaign look charitable and increase the candidate`s profile to Republican primary voters. Quote: Mr. Trump`s wrongful use of the foundation to benefit his campaign was willful and knowing, right?
Absolutely damning stuff about the Trump campaign, as well in this lawsuit from New York Attorney General Barbara Underwood. So, to the extent that Michael Cohen might be helping with this, might now be participating in what may end up being a criminal inquiry into the Trump Foundation, that has legal implications for the Trump Foundation, for Donald Trump himself, for Don Jr., Eric, Ivanka and for the Trump campaign.
And then there is also the Trump Organization, the Trump business, which is also apparently quite seriously implicated in Michael Cohen`s guilty plea yesterday in federal court. Michael Cohen made what is described as an illegal payoff to Stormy Daniels during the campaign to keep her from telling her story about an alleged affair with Donald Trump. Cohen explains in his plea and prosecutors elaborate in the criminal information they filed around this plea that Donald Trump directed him to do that. But then also, Michael Cohen thereafter, got paid back for having put out that money in that illegal payoff.
And as prosecutors tell the story, it was the Trump Organization that used as the entity to pay Cohen back. Quote: On or about February 14th, 2017, the day after Mike Flynn was fired just in case you`re counting, on or about February 14th, 2017, Michael Cohen, the defendant sent an executive of the company, the Trump Organization, executive one, the first of his monthly invoices requesting pursuant to a retainer agreement payment for services rendered for the months of January and February 2017. The invoice listed $35,000 for each of those two months.
Executive one forwarded the invoice to another executive of the company, executive 2, the same day by e-mail and it was approved. Executive 1 forwarded that email to another employee of the company stating, quote, please pay from the trust, post to legal expenses. Put retainer for the months of January and February 2017 in the description.
Now, the company in question is the Trump Organization, Trump business. Who are executive 1 and executive 2? We don`t know.
But that notation that the money to Cohen, paying him back for the illegal payoff during the campaign, that should be paid from the trust? Well, the trust in this case is -- that supposedly independent entity that President Donald Trump signed over all his business interests to after he was sworn in as president, right? That`s the entity the month after he was sworn in that started systemically paying Michael Cohen for having made the illegal payoff during the campaign. That`s where the money came from.
And who controls the trust making these payments? Well, the president says the trust is run by these guys, his eldest sons, Donald Jr. and Eric Trump. The president put his sons in charge of it, it is the trust that paid Cohen back for his felonious illegal payments during the campaign.
Again, from the criminal information, quote: Executive 1 forwarded that e- mail to another employee stating, please pay from the trust. Eric and Don Jr. run the trust.
So, the president`s person lawyer yesterday in federal court directly implicated the president himself in at least two felonies to which Michael Cohen himself has now pled guilty. Last night on CNN, Michael Cohen`s lawyer, Lanny Davis, suggested Michael Cohen has information to share that would be of interest to prosecutors that relates to the Trump Foundation, the charity. Today, that made something happen in the world, the people investigating the Trump Foundation as a potential criminal matter subpoenaed Michael Cohen to give them whatever testimony he`s got about the Trump Foundation. He apparently sprinted right over.
In addition, last night, Cohen`s lawyer Lanny Davis told us here on this show that Michael Cohen also has information about the president potentially having advance notice of the criminal hacking that happened during the campaign in which Russian government hackers attacked Democratic Party computers to wreak havoc and steal information that was used to help Trump win the election. We don`t know exactly what Lanny Davis meant by that carefully worded statement he made on the show last night.
But, today, there has been a lot of focus on this reference on page 16 of the criminal information against Cohen in which prosecutors say that when Michael Cohen got his reimbursement from the Trump Organization, from the Trump business for these expenses he had made during the campaign, the expenses of the payoff which he now admits was an illegal felonious expenditure, when he got reimbursement for that, for the illegal payoff, he also asked the Trump Organization to pay him back $50,000 for, quote, tech services.
And prosecutors say in the criminal information that $50,000 claim, quote, in fact, Cohen had solicited from a technology company during and in connection with the campaign.
Michael Cohen supposedly wasn`t part of the campaign at all. So, under what circumstances would he have been spending a nice round $50,000 on something tech-related that in fact was for the campaign that he would later seek reimbursement for from the Trump Organization? He sought that reimbursement for that $50,000 in tech expenditures right alongside the reimbursement he was already getting from them for his illegal cash payoff to Stormy Daniels, the one he`s now going to do prison time for.
We don`t know what that $50,000 was that Michael Cohen laid out to benefit the campaign and then he was paid back for by the Trump Organization. We don`t know what that was. But I will note for the record, just so you know that is out there, what Michael Cohen is accused of in the Steele dossier is meeting with Kremlin representatives in August and September of 2016 to discuss, quote, deniable cash payments to operatives who are participating in the anti-Clinton hacking campaign organized by the Russian government.
Quote, according to redacted, the agenda comprised questions of deniable cash payments were to be made to hackers who had worked in Europe under the Kremlin direction against the Clinton campaign and various contingencies for covering up those operations.
So, he was there to discuss how to pay for the Russian hacking effort, according to the Steele dossier. If that really happened, is that something you might bill to the Trump Organization as tech services, alongside the porn star payoff that you billed to the Trump Organization as legal retainer?
Last night, we talked about the fact that the closest parallel in presidential history, what happened to Donald Trump yesterday was probably March 1st, 1974. That`s the day Richard Nixon saw the indictment of his campaign chairman and his chief of staff and other White House aides. When the grand jury indicted those seven top Nixon staffers in 1974, we would soon learn that that grand jury also named the president himself as an unindicted co-conspirator. That was March 1st, 1974.
By the end of that summer, by August, Nixon resigned the presidency, which then actually led to a fascinating few days of fierce national legal debate as to whether or not Nixon could actually get indicted then once he was no longer president. Once there was no longer any constitutional issue whether he was protected from indictment because of the fact that he was a sitting president. We`ll get to that in a few minutes with Michael Beschloss tonight.
But in this case now in 2018, with this president, there is no grand jury here and there was no indictment because Michael Cohen pled in guilty in open court rather than go through the process of being indicted and going on trial. He pled guilty and he apparently wants to talk about everything he knows. But no less so than in 1974, because of Michael Cohen, this president has been named as an unindicted co-conspirator. And there are constitutional questions whether or not any president can be indicted while they`re still serving as president.
But there are no such constitutional issues of indictments coming down this road for entities not specifically named Donald J. Trump, indicted for the Trump campaign, people who served on the Trump campaign, the Trump Organization, people who work at the organization, the Trump Foundation and importantly, the people who are on the board of the Trump Foundation who are named Donald J. Trump, Donald Trump Jr., Eric Trump and Ivanka Trump.
Nothing in the Constitution protects anybody other than the president from indictment while he`s still serving as president. Nothing protects his family or business entities from legal accountability. And as of today, it looks like that is where this is going.
(BEGIN VIDEO CLIP)
BRIAN WILLIAMS, NBC NEWS ANCHOR: Two names we haven`t heard in a while are back in the news tonight. They are Enron and Ken Lay, the man in charge when the company collapsed, taking lots of people`s retirement money down with it. In a matter of hours, NBC News has learned Ken Lay will turn himself in to face criminal charges.
(END VIDEO CLIP)
MADDOW: If you remember anything about the Enron scandal, you probably remember that a bunch of big, fancy Enron executives were indicted and later convicted. Some of them actually went to prison in that big blockbuster case.
What you might not remember was another big name was indicted along with them, Arthur Andersen, which sounds like a man`s name but Arthur Andersen in the Enron case was not a person, was a big accounting firm. A federal grand jury in Houston indicted Arthur Andersen LLP in the Enron case on criminal obstruction of justice.
At the time, the leaders of Arthur Andersen called the indictment the equivalent of the death penalty for their firm. That was not far off. Arthur Andersen LLP as an entity got convicted in June 2002. By August 2002, Arthur Andersen had gone out of business.
The point being, you don`t have to have an actual pulse to get indicted, just ask Arthur Andersen LLP, not a person but very much dead.
In the allegations laid out by the Southern District of New York involving the president`s long time personal attorney Michael Cohen, they mention corporation one, a, quote, media company that owns, among other things, a popular tabloid magazine. That media company is AMI, American Media Incorporated, which owns among other things the "National Enquirer".
AMI is described as participating in the crimes to which Michael Cohen pled guilty yesterday. But AMI as an entity was not indicted. Neither was the Trump Organization indicted, although the Trump Organization is mentioned throughout Cohen`s criminal information, as well, including carefully laid out evidence by prosecutors that the Trump Organization paid Cohen back for his illegal campaign payoffs using a system of bogus invoices.
In fact, they paid him a lot more than paying him back. It appears they paid him a big bonus for making that campaign payoff. Was that a "we love you for committing crimes" or was that a "please never talk about this" bonus?
Trump Organization is name as part of Michael Cohen`s criminal scheme but the Trump Organization is also not indicted, they`re not charged. The president himself is described as the person who directed Cohen`s crimes. And that continues to be the most important fall-out from yesterday`s guilty pleas. But the criminal information for Michael Cohen also names the chairman and chief executive of Corporation One, who we understand to be David Pecker, a long-time friend of President Trump and the head of American Media who, quote, in coordination with Michael Cohen agreed to help with negative stories about Donald Trump`s relationships with women.
David Pecker is described as having taken an active part with Michael Cohen in the criminal schemes to which Michael Cohen has now pled guilty. David Pecker is not indicted.
Here`s the question, and this is an answerable question. All those individual people and these companies and entities are described in this plea deal as having taken part in the crimes that Michael Cohen pled guilty to. We know there`s constitutional questions around whether or not the president can be indicted if he, in fact, directed these crimes which Michael Cohen swore under oath yesterday that he did.
Well, what about all the other people that are described as having taking part in these criminal schemes? Are they now at risk of being indicted? If they haven`t been indicted already should we watch for them to get in trouble at sometime in the future if they`re not going to get indicted, should that mean that we assume they`re cooperating with prosecutors?
As I said, these are answerable questions. Hold that thought.
MADDOW: When the president`s campaign chair was convicted of eight felonies and almost at the exact same moment the president`s lawyer pled guilty to eight felonies, most of us went slack-jawed, right? Wow, 40 years from now, this is a day I`ll brag about having been alive for, right? This is the day you saved the newspaper, right?
If you`re an experienced federal prosecutor, though, you likely had a different response to yesterday`s remarkable confluence of events. According to prosecutors that I talked to and read analysis from over the last 24 hours apparently the way they responded yesterday they all started kibitzing among themselves and talking and wondering about what`s going to happen next.
Joining us now is Joyce Vance, former U.S. attorney in Alabama.
Joyce, it`s good to see you. Thank you very much for being here.
JOYCE VANCE, FORMER U.S. ATTORNEY: Good to see you too.
MADDOW: So, looking at the criminal information that was filed in the Michael Cohen case, reading the transcript of his remarkable moment in court where he pled guilty and explained in his own words what happened and he described the president as having directed him to commit those felonies, I think for a lot of us non-lawyers, we felt like the Michael Cohen case yesterday got a lot of other people in trouble. It seemed to implicate a lot of other people in the crimes to which Cohen pled guilty.
As a prosecutor, do you see that as a fair conclusion or should we be more careful about viewing it that way?
VANCE: I think that the answer is maybe. Maybe it does. The government`s evidence in this case, of course, applies only to Cohen, but that`s not to say it`s limited to Cohen. Cohen in court yesterday was very engaged. I`ve rarely seen a defendant who so wanted to speak his piece. And he certainly went above and beyond and whether one expects to hear from a defendant during a guilty plea.
MADDOW: In terms of the way in which he implicated the president, he described the felonies that he committed, the campaign finance felonies he committed as having been done not just in coordination with but at the direction of the federal candidate which in this case was unavoidably President Trump. If that federal candidate was somebody other than a president -- which, of course, raises constitutional issues whether or not you can indict a president -- would you expect a person described that way in court to be on the hook in some way, to be the subject of an investigation or to be expecting indictment himself or herself?
VANCE: I think that`s fair that we would expect them to be under investigation. We have to be careful when we talk about implicating people because evidence has to be developed separately for every defendant in a case. This requires especially a focus on knowledge and on intent in a case like this.
And so, to say that you implicate someone, Cohen`s statement and the information filed against him certainly raise a lot of eyebrows both as regards individuals and corporations but prosecutors have to dig a little bit deeper to get to the point where they can indict.
MADDOW: Well, Joyce, why do you think all that information was in Cohen`s remarks in court? He obviously wasn`t speaking off-the-cuff. Those were prepared remarks. They were carefully designed.
But between his remarks and what was in the criminal information, there is all of this stuff about other entities, about the Trump Organization, about executives with the Trump Organization, about AMI, about a specific executive at AMI, why -- and, of course, the stuff about the president himself. Why is that all there?
VANCE: There was a lot of information. And, you know, Cohen spoke from written notes that I`m sure he prepared with his lawyers. It seems unlikely to me that they wouldn`t have shared at least the substance of what he planned to say with prosecutors in advance to make sure it passed muster.
So, someone here, perhaps Cohen, perhaps someone else, was interested in filling in lines in the narrative. And we frankly don`t know the reason. Perhaps Cohen is trying to sell himself a little bit to the prosecutors with whom he`d like to cooperate.
I heard that remarkable television proffer that took place with his lawyer last night with his lawyer Lanny Davis. I`ve never seen a proffer take place quite liking that in public. And it seems like Cohen is trying to sell what he has to deliver a little bit.
Maybe there`s a little bit of a revenge aspect there. Maybe he wanted to actually take his public shot at a president who has deserted him. It`s hard to say just yet.
MADDOW: Joyce Vance, former U.S. attorney in the great state of Alabama -- Joyce, thank you for being here tonight. It`s nice to see you. Thank you.
MADDOW: All right. We got much more ahead tonight. Stay with us.
MADDOW: The day Richard Nixon resigned the presidency, lawyers in the Watergate special prosecutor`s office drew up an a memo laying out their options for legal action against Nixon now that he was just a regular guy living in California instead of a guy living in the White House as president of the United States.
In their memo, they said, quote: In our view, there is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice by concealing the identity of those responsible for the Watergate break in. Richard M. Nixon, like every citizen, is subject to the rule of law. Accordingly, one begins with the premise if there is sufficient evidence Mr. Nixon should be indicted and prosecuted.
Now, at this point, the grand jury had already named Richard Nixon as unindicted co-conspirator in the Watergate cover-up. That had happened months before while Nixon was still president. But no sitting president had then or has now ever been charged with a crime. A lot of legal experts don`t even think it`s allowed at least under current DOJ rules.
But back in 1974, once Nixon resigned, once he was no longer a sitting president, Watergate prosecutors did aggressively chew on that question of whether or not they would going to indict him. They debated what to do for weeks. There was a big public debate about it for weeks until all of a sudden, that got cut off when the new president decided for them.
On September 8th, 1974, a month after Nixon resigned, Gerald Ford issued a full, free and absolute pardon of any crimes that Nixon might have committed in office, thus erasing any chance that Nixon would ever be indicted or convicted let alone sent to jail. That`s how we sorted it out last time as a country. No more looming indictment, no chance of prison time for the former president, for the guy everybody knew was an unindicted co-conspirator in the Watergate cover-up.
Yesterday, President Nixon got company in the category of serving presidents who have been named as unindicted co-conspirators when the president`s personal lawyer Michael Cohen pleaded guilty to ought felonies when he said the president directed him to carry out two of those felonies that have to do with campaign finance.
The president is named in the Cohen case as individual one. It is likely that President Trump will stay unindicted, at least on these charges, that he won`t face criminal charges of any kind, in fact, while he still has the keys to the Oval Office. But what happens when it comes time to hand the keys to the next president whenever that day comes and is there any sort of penumbra of protection that extends beyond the president in terms of his interests and the people close to him at least in a way that will a matter to him while he`s considering his own fate.
Joining us now is Michael Beschloss, NBC News presidential historian.
Mr. Beschloss, it is very, very important that you are here tonight. Thank you for being here.
MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN: Thank you. My pleasure always, Rachel.
MADDOW: So, lots of lawyers and lots of laymen and lots of observers and regular citizens now talking about the arcana of whether or not a sitting president can be indicted and what it means to be an unindicted co- conspirator versus grand jury and charges from a prosecutor.
Before Nixon got his pardon, did people expect that he would get indicted? Was that an active concern that led to Gerald Ford pardoning him?
BESCHLOSS: Yes. There sure was. In fact, Rachel, there was a Gallup poll that was taken not long after Nixon quit of Americans, should Nixon be tried in a criminal trial, 56 percent of Americans said, I`m still so outraged and indignant, I think Nixon should go to trial. So, that was a big worry for Nixon and Nixon would call up members of the Senate and cry to them, literally cry, and say, I can`t take anymore, please get me out of this.
He had a little bit more bravado with other people. He would call up friends and say, well, if it happens and I go to jail, some of the best political writing in history has been done in jail. Look at Lenin. Look at Gandhi.
MADDOW: Wow. He was citing Lenin as his potential prison author inspiration.
BESCHLOSS: He had come a long way from his early years in southern California.
MADDOW: So, Nixon stayed on as president for months, a scandal ridden few months, but for months after he was named as an unindicted co-conspirator in Watergate.
You helped us out last night when we were reeling in response of this news about Michael Cohen and Paul Manafort suggesting that March 1st, 1947 and those indictments of all those Watergate-related figures might have been a sort of equivalent here once we later learned that grand jury response when we were reeling to this news bus Michael Cohen and Paul Manafort, suggesting that March 1st, 1947 and those indictments of Watergate-related figures might have been a sort of equivalent here once we later learned that grand jury considered him to be an unindicted co-conspirator.
Once the public knew that the grand jury had concluded that he was a co- conspirator in this crime, what was the public reaction to that? How did that affect him in the remaining months that he remained in his presidency?
BESCHLOSS: The reaction was that once Americans found that the grand jury that had indicted seven Nixon aides, including his campaign manager and Haldeman and Ehrlichman, all these big aides, that they had also named Nixon in secret as an unindicted co-conspirator, that was a watershed in that presidency.
Nixon was oftentimes referred to from that moment on as the unindicted capital U co-conspirator capital C. He was increasingly viewed as a criminal president.
Then that summer, the House Judiciary Committee met. There were hearings on impeachment, impeachment was voted. Then, of course, the Supreme Court told him he had to release the tapes and it was all over.
MADDOW: Michael Beschloss, NBC News presidential historian, thank you for helping us keep our bearings, my friend. Much appreciated.
BESCHLOSS: My pleasure. I think we`re all trying.
MADDOW: Yes, absolutely. Sometimes with more success than others.
We`ll be right back.
MADDOW: When it rains it pours. Believe it or not, there is yet another front on which President Trump could be facing increased legal jeopardy tonight. This one has nothing to do with Michael Cohen or Paul Manafort. It has to do with an incident outside Trump Tower in September, 2015, three months after Trump announced he was running for president.
This video from local station New York one is an exhibit in the lawsuit brought by protesters who say they were violently attacked by Trump`s personal security team during this campaign event. The guy in the center, the bald guy ripping down signs and then hitting a protester, that`s Keith Schiller, who was Donald Trump`s head of security and then his director Oval Office operations in the White House for the first few months of the Trump presidency. No, I don`t know what that job title means. Mr. Schiller says he was acting in self-defense in this incident.
It might also be helpful to note here that after Mr. Schiller left that strange job he had at the White House, he got put on the payroll of the Republican National Committee in a $15,000 a month job where nobody knows what he does. It`s a deal that sounds on the surface a lot like the $15,000 a month job that Omarosa Manigault Newman was offered to be, quote, positive about Trump after she, too, left the White House.
Well, now, Keith Schiller is personally named in this lawsuit about Trump`s security beating people up during the campaign. Schiller is named personally as is Donald Trump personally. And now, a judge has ruled that the lawsuit is going forward. It`s, in fact, going to a jury, and a jury will decide if those defendants are responsible for Trump security team beating people up during the campaign.
In his order, the Trump -- excuse me, the Trump -- the judge noted that Trump, quote, authorized and condoned these specific type of conduct that Schiller and his colleagues are accused of. The judge quotes comments that Trump made to reporters after his supporters beat up a protester at a rally in 2015. Trump said, quote, maybe he should have been roughed up because it was absolutely disgusting what he was doing.
This case is now headed to a jury trial. So, you can add it to the list of things for which Trump potentially faces legal jeopardy. It is hard to keep track of them all. I know.
Stay with us.
MADDOW: Last night, I mentioned that we were hoping to get the list of exhibits for the next federal trial for Paul Manafort, the Trump campaign chairman. We expected those to come through for public viewing as of late last night. Turns out we didn`t get that list of evidence. Manafort`s lawyers have asked the judge for an extension, in part, based on the massive amount of evidence prosecutors want to introduce in Manafort`s next trial, well over 1,000 items.
His lawyers say most of the exhibits that prosecutors are going to introduce for Manafort`s next trial are new exhibits. It`s not old evidence recycled from Manafort`s last case in Virginia.
Again, I thought we were going to have this by last night. We do think that prosecutors have filed their list of evidence for the next Manafort trial, but despite my expectations last night, we have not yet got our hands on that list. The court has not yet made it available. I will let you know as soon as I`ve got it.
That does it for us for us tonight. We`ll see you again tomorrow.
Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".
Good evening, Lawrence.
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