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Thousands of protesters in Times Square. TRANSCRIPT: 11/8/2018, The Rachel Maddow Show.

Guests: Elijah Cummings, Sharice Davids

Show: THE RACHEL MADDOW SHOW Date: November 8, 2018 Guest: Elijah Cummings, Sharice Davids

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

So, for months, we have been hearing about organizing efforts, what people plan to do in case President Trump took action to try to shut down the investigation, the investigation into Russian interference into his election and the crucial question of whether his campaign was in on that foreign operation. So, for months, activist groups have been openly developing a plan for there to be some sort of public response as soon as the president just stopped talking smack about that investigation and moved instead to take his first steps to actually curtail it.

Well, yesterday, after the president fired the attorney general and installed a hand-picked replacement to oversee the entire Justice Department, including the Mueller investigation, those groups that have been musing about this possibility for months, yesterday, they declared that they had reached their break glass in case of emergency moment. And so, that put their long developed plan into action for today.

Under the banner "protect Mueller", which is the number one trending hashtag on Twitter tonight, and has been all night, and under the additional banner, nobody is above the law. At 5:00 p.m. local time all over the country tonight, people showed up. In New York City, it was thousands of people in Times Square. Ultimately, they marched as a group downtown towards Union Square. It's a distance of 25, 30 city blocks. The marchers apparently stretched for about a dozen of those blocks as they marched downtown.

In Virginia, state route 7 in Virginia, talk about contrast with Times Square. Look at this. Rural state route 7 looked like this. The sign saying truth and protect Mueller. In Roanoke, Virginia, people marched with big banners that read "no one is above the law. Protect the investigation."

In Kansas City, Missouri, in what looks like, as this looks to me like the dreaded wintry mix, right? Snowy, slushy rain. Hey, hey, ho, ho, maybe it's ho, ho, hey, hey. There we go, Mueller ain't going away. That rhymes better than hey, hey, ho, ho.

People came out in Charleston, South Carolina, tonight as well. People came out in downtown Cincinnati, Ohio. In red state Alabama, in the beautiful city of Birmingham, Alabama, people came out tonight.

In Philadelphia, people gathered at Thomas Payne Plaza in large numbers to demand that the president's hand-picked appointee must be recused from the Mueller investigation. He cannot be allowed to oversee it.

Hundreds of people turned out tonight in Minneapolis where it is heading down toward 19 degrees tonight. They decided to gather in front of the office of just unseated Republican Congressman Erik Paulsen, asking him to protect Mueller. I think this is why people didn't mind the cold there tonight. No more Minnesota nice. Now I'm Minnesota mad.

People were out in places like Buffalo, New York, and Austin, Texas, Madison, Wisconsin, and Omaha, Nebraska. The protests were bigger in some cities and smaller in others. Little Rock, ArKansas, Smyrna, Georgia, Sioux Falls, South Dakota where it was snowing, Santa Fe, New Mexico.

In Chicago, somebody held this vaguely threatening but also very well done sign, Mueller is coming for you.

In Pittsboro, North Carolina, Pittsboro, more than 100 people gathered in front of the courthouse. Pittsboro, North Carolina.

And there are so many more cities where these things happened tonight on zero notice. Morristown, New Jersey, Kingston, New York, St. Louis, Missouri, Bar Harbor, Maine. I mean, people were out on the road in super snowy Bemidji, Minnesota tonight, and then in warm and sunny St. Petersburg, Florida. All 50 states.

So people out in the streets tonight, and that's asking a lot of people, right, in terms of their civic engagement just this week. I mean, just two days ago, everybody had to freakin' line up to vote, take time out of the day, in some cases take many hours out of the day to go vote on Tuesday. Everybody stayed up late on Tuesday night, watching the election returns come in.

Now, it's just two days later, and thousands of people are out in the streets, over a thousand protests all around the country. Sometimes, citizenship requires overtime and double shifts.

But the nearness of those two civic engagements, the election on Tuesday and all those protests today, it's not a coincidence, right? The reasons why this is happening now are clear, including brand-new developments in today's news. Some of which happened very much out loud in the headlines and in the press, and one big development we're going to talk about in this story that happened quietly in a very serious and sober courtroom in Washington, D.C.

Well, let's talk about the out loud part first. As you know, the Democratic Party sort of cleaned up in the elections. Democrats appear to be on track now to pick up 37 seats in the House of Representatives. What people said would be the sort of unimaginably gigantic Democratic wave for this election would be 40 seats. It looks like Democrats are going to get 37. That is way more than usual, which Democrats aren't afraid to tell you now.

I mean, typical gain for the party that doesn't control the White House in the midterm election is in the low 20s in terms of the number of seats that party picks up in the House. As more and more of these close races have been called over the past couple of days and even into this evening, it is starting to look like Democrats aren't going to be anywhere near the low 20s. Their pickups for this election are going to be way closer to 40. So that's big deal for the Democratic Party and for the balance of power in Washington.

Tonight this hour, we're going to be speaking with a first-time candidate who won her election on Tuesday night. She unseated an entrenched Republican incumbent. She is our guest tonight live. She is going to surprise you in lots of ways. I'm very much looking forward to talking with her.

We're also going to be speaking in just a few minutes with the powerhouse Democratic congressman who will now be the incoming chairman of the Oversight Committee in Congress, the House Oversight Committee, Congressman Elijah Cummings. So, I have been looking forward to talk with him ever since it seemed it might be remotely possible that he might be chairman of that pour powerful arm of Congress.

So, we're having both of them here on the show tonight this hour. But immediately after these election results started to become clear on Tuesday night, right after the election, on Wednesday morning, that is when the president fired Attorney General Jeff Sessions, or at least secured his prearranged resignation. Now, part of the reaction to that move by the president has been a big, loud counter argument today that what the president did to replace Jeff Sessions at the Justice Department might have been illegal.

That case was made in bold print today at "The New York Times" by a high profile constitutional lawyer who is former acting solicitor general of the United States, Neal Katyal. And his co-author in this piece is somebody who was reportedly considered to be solicitor general in the Trump administration. His name is George T. Conaway III.

He is a distinguished conservative lawyer in his own right, but he is probably best known now as the husband of White House senior adviser Kellyanne Conway. Katyal and Conway argued today that while it's within the president's rights to fire Attorney General Jeff Session, it's not within the president's rights to install his own random hand-picked guy to take over the Justice Department from Jeff Sessions and become the acting attorney general.

Quote: Because Matthew Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whittaker's only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation.

Quote: Mr. Trump's installation of Matthew Whitaker of acting attorney general of the United States is unconstitutional. It is illegal, and it means that anything Mr. Whittaker does or tries to do in that position is invalid.

Now I'm not a lawyer. Do not take my advice. I couldn't get you out of a parking ticket if you got a parking ticket while you were on a pogo stick. I can not help you.

But if you want to know what explains all the three-inch-all the headlines about what Trump just did here right after the election, how he was able to actually get the election results off the front pages of newspapers across the country, right, if you want to know what's got those three-inch headlines and what's got people out in the streets in a thousand different protests tonight, and what's got all these serious legal minds and these law enforcement veterans all saying, this is the crisis we have been expecting, the reason people are freaked out is because what the president has done here basically has -- again, I'm not a lawyer, but what we're seeing the arguments here are constitutional concerns and criminal concerns.

Constitutionally, what should have happened here under normal circumstances is if the attorney general was going to quit or get fired, that should have activated the line of succession at the Justice Department, right? The guy who would then take over as acting attorney general for the time being would be the next in line at the Justice Department. The next in line, Senate confirmed deputy Attorney General of the United States Rod Rosenstein. That did not happen. The president instead leapfrogged Rosenstein, leapfrogged that normal chain of command and instead installed his own guy.

So those are basically the vastly oversimplified constitutional concerns here. But then there is also just the very blunt question of obstruction of justice, right? We've all become like mini laymen experts on obstruction of justice in the Trump era.

It's within any president's right to fire or demand the resignation of any cabinet officer, including the attorney general. Just like it's within the president's rights to fire or demand the resignation of the director of the FBI, unless, unless, of course, it turns out that the reason the president was doing either of those things is because he had a corrupt purpose in mind. He did it for the corrupt purpose of undermining a criminal investigation that he is worried might catch him or catch his family or his campaign or administration, right?

It's a pretty simple basic principle, right? The president has the absolute right to pardon anybody in the country for any crime. But he can't do so for a corrupt purpose. He can't do so because somebody gave him a million bucks to do it, right? You can do something that's within your legal rights for a non-corrupt purpose, but as soon as you take a bribe or you do it for some other corrupt purpose, well, that's no longer within your rights.

The president can fire cabinet officials. He can fire the heads of agencies, as long as he isn't doing so for the purpose of obstructing justice. So that's the reason, right, why the James Comey firing resulted in special counsel Robert Mueller being appointed. That firing investigated as potential criminal obstruction of justice by the president. Did he fire Comey in order to shut down parts of the Russia investigation that threatened the president?

Similarly, if there is evidence that Attorney General Jeff Sessions was fired yesterday in an effort to block the Mueller investigation, in an effort to protect the president from that investigation, you can expect that the sessions firing as well will ultimately come under investigation as potential criminal obstruction of justice, if it has not already. And that worry that the president might have fired Attorney General Jeff Sessions for a corrupt purpose as part of a criminal scheme to obstruct justice to get rid of the Mueller investigation that threatens him, that got a big boost today from the free press when multiple news outlets started going through the record of this person who the president plucked from obscurity and installed at the head of the Justice Department to replace Jeff Sessions, right?

Obviously, from the outset, it's not a normal appointment. The normal course of events would have been to allow the number two at the Justice Department to take the job temporarily until somebody new was appointed. He didn't do that. Instead, he takes this guy from outside, not a Senate confirmed guy, and plops him in there.

Well, did he do that for a corrupt purpose? Let's look at what we know about this appointment. Obviously, first thing you might ask is, well, is this person qualified to do the job?

He's a lawyer. He's a former U.S. attorney. The reason we have this weird video of him is because this is him promoting a Neato swinging seat that you can clip on to the outside of your hot tub. We also have this odd video of him promoting bulky plastic holders for razor blades.

The reason we have this weird video of Matt Whitaker is because this appears to have been Matt Whitaker's last job before landing there the Trump administration. He was on the board of and otherwise actively associated with a company called World Patent Marketing. It no longer exists.

This is a company that was shut down six months ago by the FTC as a criminally fraudulent scheme. The company was shut down by orders of the U.S. government, and they were ordered to pay a fine. They were ordered to pay a $26 million judgment to the FTC for being a gigantic fraud scheme, which ripped off its customers to the tune of hundreds of thousands of dollars each. That's where Matt Whitaker comes from.

Quite recently, they paid their fine six months ago. He also made money as the soulful time employee of something called FACT. FACT was funded by, we don't know who, dark money donors only. He was the only employee. FACT appears to have exited for the sole purpose of giving Matt Whitaker an affiliation to put under his name when goes on cable news shows and right- wing radio, to be a full-time anti-Hillary Clinton, anti-Robert Mueller pundit.

Over the course of this afternoon and into this evening, what has started to emerge is his extensive record of public criticism, public attacks on the Mueller investigation the president has now put him in charge of. The special counsel's investigation led by Robert Mueller into Russian interference in the 2016 presidential election and the question of whether the Trump campaign colluded in that attack.

Mr. Whittaker has just been installed directly by President Trump to oversee that investigation. Mr. Whitaker quite clearly is a person who has already made up his mind about the key questions at the heart of that investigation.

(BEGIN AUDIO CLIP)

MATTHEW WHITAKER, ACTING ATTORNEY GENERAL: I think we would know if there was a smoking gun, or any gun, or any smoke. I think we would know. I think we would know if there was evidence suggesting that there was a crime that happened here.

Let's assume that the president asked him to stop investigating Flynn. That doesn't rise to the level of obstruction of justice. This idea that there was some collusion with Russian nationals and even Putin to interfere and did interfere with the election I think is just ludicrous based on what we know at this point.

The truth is there is no collusion with the Russians in the Trump campaign. There is not a single piece of evidence that demonstrates that the Trump campaign had any illegal or even improper relationships with Russians. It's that simple.

(END AUDIO CLIP)

MADDOW: Clearly, this is a man who has made up his mind in terms of this investigation. You know, and that's fine. You can -- it's not a criminal act to leap to your own conclusions about what the Russia investigation will ultimately find, right? It's fine if you've made up your mind about it and declared what your made-up mind has decided about that investigation. That's fine.

Unless, of course, you want to become the Justice Department official whose in charge of supervising that investigation while it is ongoing, because that investigation is actually designed to determine factually whether or not any of those things is true. And if you've already decided and declared publicly what you believe to be true, then the one thing you can't do is oversee that investigation at the Justice Department. It's good punditry living, but you can't actually run the investigation, not for U.S. law enforcement.

But those comments by Matt Whitaker and others were dug up today by the very capable Andrew Kaczynski at CNN and by a team of reporters at "The Daily Beast". And hour-by-hour, more news outlets have been turning up more comments like these from Matthew Whitaker who again, the president has just installed at the head of the Justice Department and specifically as the supervisor of the Mueller investigation.

And honestly, I mean, so we know why the president has done what he has done, right? But there's another equity here, right? There's the Justice Department. And the Justice Department has rules that are supposed to prevent this sort of thing.

The Justice Department has rules that are supposed to stop somebody who is a declared partisan about an ongoing Justice Department investigation, somebody who has declared in no uncertain terms what he believes the outcome of that investigation should and will be. Justice Department rules don't allow a person in that circumstance to run that investigation. They have lots of processes in place to make sure that doesn't happen.

And, you know, the Justice Department has to still be standing when Trump gets done with it. The Justice Department is not only staffed by Donald Trump appointees. It is staffed by career prosecutors and career Justice Department officials who are not partisans, who are not rooting for one side or the other. People who are committed to the marrow of their bones to the idea of impartial law enforcement in the United States that is not bent at will by the president to serve his own needs and to let him get away with crimes, right?

And then the president installs that guy to run that investigation. So here we are. We got over a thousand protests in every nook and cranny in the country tonight, including all 50 states. And this guy is now technically in charge of all U.S. law enforcement as of right now, including the active investigation into the president, that president personally put him in charge of after this guy denounced it publicly as a lynch mob and a witch-hunt and no collusion, no collusion, lock her up.

The Justice Department itself as an institution just can't conceivably allow something like this to happen, right? I mean, this so defies not just the rules, but the very core principles of what the Justice Department is and why it exists. Otherwise, the president would just have his own police force, right?

I mean, knowing what we know about the history of the Justice Department, presumably something breaks here in terms of this appointment as acting attorney general that the president has tried to put in place in the immediate wake of the election -- specifically, this appointee being allowed to take over what the special counsel's office is investigating. And so here is one last thing you should know. I mentioned a whole bunch of really important stuff happened on this issue today out loud, and in the press. But there is manage else that happened today in court.

(BEGIN AUDIO CLIP)

MICHAEL DREEBEN, DEPARTMENT OF JUSTICE: The purpose of the appointment was to provide assurance to the American people that an investigation would be conducted that was sufficiently independent of the ordinary chain of command so that the United States people could have confidence in it.

(END AUDIO CLIP)

MADDOW: That is the voice of Michael Dreeben, who is considered to be one of the top appellate lawyers in the country. He is one of the top prosecutors working under Robert Mueller in the special counsel's office. Mueller's investigation essentially went silent ahead of this week's elections. That's according to Justice Department rules.

But today in court, a three-judge panel in the D.C. Court of Appeals, they heard arguments in a Mueller case, a case that has been brought to the court specifically to try to end the Mueller investigation.

This is a case we've talked about a few different times on the show. It involves a guy who once worked for Roger Stone. He is somebody who nobody has heard of. His name is Andrew Miller. I believe he is a house painter in Missouri now.

Mr. Miller was subpoenaed by the grand jury that is being run by the special counsel's office. He was subpoenaed to hand over documents and to testify. He rejected the subpoena. He challenged the subpoena. He said Mueller has no authority to give him a subpoena, and they have turned his case into a legal vehicle to try to have the very appointment of Robert Mueller declared unconstitutional.

And as I said, I'm not a lawyer. I don't know how this will go. Clearly, the plaintiffs here want this to go all the way to the Supreme Court. The lawyer for the Roger Stone guy spoke with reporters outside today's hearing and explained bluntly that he wants this case to get to the Supreme Court as soon as possible, because now Brett Kavanaugh is there. And with Brett Kavanaugh there on the court, he thinks that President Trump will get basically whatever he wants when it comes to limitations on the Russia investigation.

The court hearing today, though, was not a Supreme Court hearing. It was at the D.C. Appeals Court, one level below the Supreme Court. We will see if this case ever in fact gets to the Supremes.

But what happened today in this case, right, the day after literally a no collusion, no collusion, anti-Hillary Clinton TV pundit affiliated with a large criminal fraud scheme was installed by the president personally as acting attorney general with control over the Mueller investigation, today one day after that guy was installed in that job, here was Mueller's team. Here was Mueller's top appeals court prosecutor explaining today in court just how much of the work of the special counsel actually has to go through -- it used to be Rod Rosenstein as of yesterday. It's now this new guy, Matt Whitaker.

And it's really one of the first windows we've ever had into how the Mueller team is actually supervised in the Justice Department, and how somebody in the Justice Department who had authority over them might be able to try to shut them down. This is the first description that we had. And we get it directly from one of the top prosecutors working Mueller's case.

We've got tape of it. I believe we're the first people to broadcast this nationwide. The first voice you're going to hear is one of the judges on the three-judge panel. The person who answers the questions is Michael Dreeben from the special counsel's office.

(BEGIN AUDIO CLIP)

JUDGE: Can I just ask you a couple of detailed questions on the constitutional question and specifically about the way that supervision is exercised? So, there is the provision that talks about the attorney general finding that something the special counsel wants to do is so inappropriate or unwarranted under established department practices that it should not be pursued.

DREEBEN: Correct.

JUDGE: Do you understand that to mean that the -- if the attorney general makes that assessment, then that the special counsel can't take the step?

DREEBEN: We do.

(END AUDIO CLIP)

MADDOW: If the attorney general makes that assessment, decides something is inappropriate or unwarranted, then the special counsel can't take that step? Yes.

So, Michael Dreeben from the special counsel's office from Mueller's office saying bluntly to the court that the special counsel's office just can't do what it wants. If the acting attorney general tells them no, what you're doing is inappropriate or unwarranted under established Justice Department practices, then that acting attorney general can stop Mueller from doing anything. And, of course, yesterday President Trump just installed a new acting attorney general.

(BEGIN AUDIO CLIP)

DREEBEN: The special counsel has a regular reporting obligation to the acting attorney general in order to maintain the acting attorney general's ultimate accountability for the investigation. That's one of the twin purposes of the regulation, ultimate accountability in the attorney general, day to day independence of the special counsel. We are therefore required to submit reports to the acting attorney general in accordance with the Department of Justice's urgent report guidelines, without going into all their detail, ensured that major events, investigations are reported up the chain of command so that supervisory officials in the department are aware of them.

The regulations also specifically provide that the acting attorney general can ask the special counsel for an explanation of any investigatory step. So, he is aware of what we're doing, and he can ask for an explanation of it. It is not the case of the special counsel is off wandering in a free- floating environment and can decide on his own when to report. There's a reporting obligation.

(END AUDIO CLIP)

MADDOW: He's aware of what we're doing and he can ask for an explanation of it. There is a reporting obligation.

Top prosecutor from Mueller's office saying that all major events in the special counsel's office investigation, all major stuff has to be reported up the chain of command. So, that supervisory officials in the department are aware of those events. Quote: Ultimate accountability lies in the attorney general, in this case the acting attorney general.

This is why it's such a big deal that President Trump has just installed his hand-picked guy who is an avowed enemy of Mueller's investigation to be the guy in charge of Mueller's investigation.

(BEGIN AUDIO CLIP)

DREEBEN: But if the acting attorney general concludes in words that afford him a fair amount of discretion that an action is so inappropriate to a degree of inappropriateness or unwarranted that it shall not be pursued, he can step in and say otherwise.

JUDGE: So it's not that then it just triggers a reporting obligation on the part of the attorney general?

DREEBEN: That's right.

JUDGE: It's that the attorney general can actually prevent the action from happening?

DREEBEN: That is our understanding of the regulations. The preamble to the regulations makes clear that that is part of the arsenal of powers that the acting attorney general has.

(END AUDIO CLIP)

MADDOW: It's not just that they have to report if they do something. They can actually stop you from doing it. The arsenal of powers that the acting attorney general has are the kinds of powers one would not expect the Justice Department to allow to be placed into the hands of somebody who was completely personally compromised when it comes to overseeing an investigation of the president.

But the president is trying it, and that's why there were a thousand protests in all 50 states across the country tonight.

This is what we've been waiting for. It turns out to be a test for the country. It turns out to be a test first and foremost of the Justice Department. What are they going to do here?

Congressman Elijah Cummings joins us next.

(COMMERCIAL BREAK)

MADDOW: Overnight, a small army of senior administration officials received this rather sobering letter, varied a little bit from agency to agency. This is the one that went to the White House counsel.

Quote: We ask that you confirm that the White House has preserved all materials related to any investigations by the special counsel's office, including any related investigations conducted by any component of the Justice Department.

Quote, we also ask that you preserve all materials related to the departure of Attorney General Jeff Sessions. We remind you -- helpful reminder -- we remind you that concealing, removing or destroying such records may constitute a crime, may result in the immediate disqualification from holding a position in the federal government, and may be punishable by up to three years imprisonment under federal law. Have a nice day, sincerely, Congressman Elijah Cummings, the top Democrat on the Oversight Committee, and other top Democrats who will be taking over powerful oversight committees come January now that the Democrats have won the House.

Joining us now is Congressman Elijah Cummings of Maryland. He is the top Democrat on the Oversight Committee.

Congressman, sir, it's really nice to have you here this evening. Thank you for making the time.

REP. ELIJAH CUMMINGS (D-MD), RANKING EMEMBER, OVERSIGHT COMMITTEE: I'm honored to be here.

MADDOW: First of all, I should say congratulations on your win on Tuesday. I know you were reelected in a landslide. Obviously, your party also takes control in the House.

What should the American people expect from you if and when you're now set to ascend to run the Oversight Committee in the House? It's a very, very powerful position.

CUMMINGS: They should expect us to do what they have basically told us to do by the numbers that were voted in on the Democratic side. What they are asking for is transparency in their government. They're asking for honesty, and they're asking the Congress to simply do its job under the Constitution.

They understand that every two years we swear to uphold the Constitution of the United States of America. And part of that, Rachel, of that oath is about the business of being a check on executive branch. They should expect that, and I promise you, they will get that.

MADDOW: You and your colleagues sent what amounted to a very stern preservation notice to the White House counsel's office and lots of other government agencies that may have come into contact with the special counsel's office at some point during the investigation, everything from the FBI to the CIA to the NSA to the Treasury Department to the IRS.

Why did you send that preservation notice today? Are you concerned that evidence may be at risk?

CUMMINGS: I am extremely concerned about evidence being at risk, Rachel. Keep in mind that over the year and a half or so that President Trump has been in office, we in the oversight committee, the Democrats have asked the Republicans to help us get documents so that we could do what the Constitution says we're supposed to do, have oversight. Rachel, you cannot do oversight without information.

They have basically refused to issue subpoenas, and they not only that, not only have they been aiders and abettors with regard to this president, but they have gone so far as to basically act as his defense counsel. So we want to make sure that the evidence is preserved. We -- keep in mind we don't take over until January. So in the meantime, we want to make sure that everything stays intact so that we can do the appropriate investigations.

MADDOW: If you discover once you do have the gavel in January, if you discover retroactively that records were destroyed either during the previous Congress or during this lame duck period, would you expect to pursue that potentially as a criminal matter or as at least a point of investigation?

CUMMINGS: I would think it would be legislative malpractice not to pursue it as a criminal matter. As a matter of fact, we would be obligated to turn that information over to the Justice Department. Now what the Justice Department will do once they get it is a whole another thing. We would hope that they would do what they deem to be appropriate and fair.

But we have no choice. We have to turn -- we'll have to turn that over.

MADDOW: Congressman, there are reports today that Nancy Pelosi, the Democratic leader today scheduled an emergency call with her caucus to discuss the president firing Attorney General Jeff Sessions yesterday and installing a hand-picked acting attorney general whose never gone through Senate confirmation, whose nevertheless been put in charge of the Mueller investigation and whose been a very controversial choice on the Mueller investigation specifically because of his many public comments disparaging the investigation and saying how he thinks it should go.

I know you and your fellow incoming chairmen were invited to brief other incoming Democratic House members during that call. Can you share with us what those discussions are like within your caucus right now and what you plan to do, if anything about this new controversial act by the president?

CUMMINGS: First of all, I was very proud that we had almost our entire caucus, including the new members who haven't even been sworn in yet to be on that call. Basically, what I told them is that we must act with the urgency of now, that Mr. Whitaker is not the person that should be sitting in the acting general's spot. Because, and I reference back in June of 2017, Mr. Whitaker said that there was no evidence here for a case in the basically condemned special prosecutor. That was a month -- a month after he was appointed.

A few weeks later, he said that no lawyer would bring a case like this. Then in August, this is 2017 now, and back in 2017, he called a -- the special prosecutor's office a lynch mob. Those words sound kind of interesting, but the fact is he did.

My point is he had already judged this situation, Rachel, before he even knew the facts. The special prosecutor had just gotten started. And that's why we have been insisting and I agree with Leader Pelosi that he should recuse himself.

To be frank with you, I'm shocked that he has not already recused himself. Most lawyers in this situation would voluntarily say you know what? I don't want to even have the appearance of a conflict. But, again, he is the absolute wrong person to have in this position.

And so, we again will gather our information. We'll probably have hearings. We'll do our investigations and see what come of them.

MADDOW: Congressman Elijah Cummings of Maryland, who is the top Democrat in the Oversight Committee, slated to be chairman of that committee when the Democrats take the gavel in just a few weeks -- sir, thank you for being here tonight, and I hope we can stay in touch as you ascend to this very, very important position. You'll be in almost a unique position in terms of your oversight role, sir, and we'd love to stay apprised of your work. Thank you.

CUMMINGS: Rachel, I appreciate that and I want to say to your audience we have to fight for the soul of our democracy. We have to fight for it every day. Thank you very much.

MADDOW: Congressman Elijah Cummings.

All right. We'll be right back. Thank you.

(COMMERCIAL BREAK)

MADDOW: Hey, election night is still going on. Are you tired? Do you need some jerky? Do you want some junior mints? I have old coffee.

This afternoon, Democrats flipped another Republican-held seat in California. Newcomer Katie Hill now projected the winner over incumbent Republican Congressman Steve Knight in California.

In Washington state today, Republican Dino Rossi has just conceded to Democratic candidate Kim Schrier. That flips that seat from red to blue.

In Georgia as of this morning, we learned that Lucy McBath has defeated Republican Congressman Karen Handel in a previously red district just north of Atlanta. In terms of all the called races for the House of Representatives, there is a bunch of them still too close to call, NBC News reports that as of tonight, Democrats have definitely picked up 30 seats in the House, but there are like a million votes still to be counted.

In the Senate, tons of drama. In the Arizona Senate seat that was left open by Republican Jeff Flake retiring there. There are still half a million ballots to count, just in that one Senate race. As of tonight, the Democratic candidate for that Senate seat, Democratic Kyrsten Sinema, has pulled ahead by almost 10,000 votes. If her lead holds, that would give Democrats a second red-to-blue flip in the Senate after the flip they already got with Dean Heller's seat in Nevada.

We're also watching dramatic statewide races in Georgia and in Florida. We're going to have more on that craziness coming up in just a few minutes.

But before we do that, I want to introduce you to somebody on the show tonight who could credibly claim to have pulled off, if not the most surprising win in the election, definitely one of them. I don't know if she thinks of it that way. She seems way too confident for that, but you are going to enjoy meeting her. That's next.

(COMMERCIAL BREAK)

MADDOW: If Democrats wanted any chance of flipping congressional states in a deep red state like Kansas, they were going to need a fighter. They found one. This is Sharice Davids.

She is a former mixed martial arts fighter. She is also a lawyer. When she is going to law school at Cornell, she would drive 90 minutes almost every day to go train. On the way, she would listen to her law school classes on tape.

Sharice Davids is Native American. She is a member of the Ho-Chunk Nation. After she graduated from law school at Cornell, she went to live and work on Native American reservations to help out underserved communities. She eventually found her way to the White House when she was chosen in 2016 for the highly selective White House fellowship program. She found she liked working in politics.

When she got back home to Kansas, she started keeping an eye on her local congressman, a man named Kevin Yoder. Congressman Yoder has been a fixture in Republican politics. He served a red district in an even redder state and never really had a challenge. Across eight years and four elections, he has just glided to victory again and again, always by big double-digit margins.

But Sharice Davids looked at the job that he was doing for Kansas, and she thought maybe she could do it better.

(BEGIN VIDEO CLIP)

SHARICE DAVIDS (D), KANSAS HOUSE REP-ELECT: This is a tough place to be a woman. I've been put down, pushed aside, knocked out. Truth is I've had to fight my whole life because of who I am, who I love, and where I started.

But I didn't let anything get in my way. Still, it's 2018, and women, Native Americans, gay people, the unemployed and underemployed have to fight like hell just to survive. And it's clear Trump and the Republicans in Washington don't give a damn about anyone like me or anyone that doesn't think like them.

Enough. That's why I'm running for Congress.

(END VIDEO CLIP)

MADDOW: The single most reserved staffer on THE RACHEL MADDOW SHOW, a person who is incapable of hyperbole, after that ad was first posted and said, I've never used the word epic to describe something in our news gathering process before, but I'd like you to look at it. I find it fairly epic. Fair enough.

Tuesday night, Sharice Davids, the Democratic fighter running for Congress from Kansas, the Democrat in a sea of red. She beat four-term Republican Congressman David Yoder in Kansas. And she didn't just beat him, she trounced him by more than nine points.

Sharice Davids is only 37 years old. Before now, she had never run for public office. She now shares the honor of being the first Native American woman of being elected to the House of Representatives alongside newly elected Deb Haaland from New Mexico. Sharice Davids is also the first openly gay person to be elected from not just her Kansas district, but from any district in Kansas.

Man, is there a story of this election? Don't you want to meet Congresswoman-elect Sharice Davids? She joins us next.

(COMMERCIAL BREAK)

MADDOW: When you make history, all at once in more ways than one, the headlines about you get long. So they look like this. Sharice Davids makes history: Kansas' first gay rep, first Native American woman in congress.

Joining us now is Sharice Davids, congresswoman-elect from the great state of Kansas.

Ms. Davids, thank you very much for joining us tonight and congratulations.

DAVIDS: Thank you. Thank you. I'm happy to be here.

MADDOW: So, I have been telling the story of your somewhat remarkable victory. Obviously you're a lot of firsts here. There's never been a Native American woman elected to the House before Tuesday night. State of Kansas has never elected an openly gay person to federal office.

Your district has been under Republican control for like a decade. What made you decide to do this and what made you think you could win?

DAVIDS: Well, you know, I think that at the core of what helped me feel empowered to do this was that I knew my community could do so much more and have a much stronger voice in Washington, D.C. than what we had with Congressman Yoder.

And, you know, starting off at Johnson County Community College right here in our community and making my way to Cornell for law school -- I mean, so much of the opportunity I had in my life stemmed from the support I've had here and having a strong public education foundation and all of those things combined just led me to take the leap because I just -- I knew that we could do so much better than what we had.

MADDOW: You're a trail blazer, not only for winning, but for getting the nomination in the first place. You're a trail blazer even within the Democratic Party. Correct me if I'm wrong, but I think you had to beat out like five other Democrats in this primary.

What was that process like --

DAVIDS: Yes.

MADDOW: -- in terms of integrating yourself into the existing Democratic Party, figuring out how to best strategize against your fellow Democrats? Was there a unification effort after that hard-fought primary?

DAVIDS: Yes, so there was a unification effort. We had a couple of unity rallies right after and wanted to make sure that even though, you know, our community had never seen a six-way primary before, that ultimately our goal was to make sure that everyone came together for whoever ended up being the nominee. And really, my approach was not necessarily one of competing with the other candidates, but rather trying to make sure that our message of, one, making sure everybody has the same kind of opportunity that I know I had from this community. And, two, making sure people knew what we were fighting for.

Our campaign tried really, really hard to talk to as many people as possible about wanting to make sure that everybody had access to affordable quality health care, making sure that we sent somebody to Washington, D.C. who really cared about public education, about campaign finance reform, and that was really the focus of what we were doing.

MADDOW: Obviously, coming from the district and having grown up there and knowing what it's like, I can tell from the way that you're talking about it that you're focused on constituent services and what you want to be able to do for the district. What you think Congressman Yoder wasn't able to do.

But I think it's also obvious that you're going to have a big national spotlight on you because of how big a win this was, because you flipped this district, because of who you are, because of how you won. What are your goals for Washington, for your first term? You're going to get a lot of attention and you're going to have probably your pick of the litter in terms of what you want to tackle first.

DAVIDS: Well, certainly I want to be able to work on -- health care was the biggest issue that I heard from people about the entire time I was on the campaign trail. And so, you know, that means that that has to be a big part of what I focus on. You know, the folks here in the third district are really concerned about making sure that we send somebody to Washington, D.C. who is taking our voice and our values there.

And that means being pragmatic. That means trying to figure out ways that we can build some kind of bipartisan change. So those are the kinds of things I want to focus on.

And then, you know, as far as the attention, I think I'm just really happy to see that Kansas is in the news for positive change making because we are -- we're often, unfortunately, known for folks like Sam Brownback and Kris Kobach. And I just have always wanted to make sure that people knew that Kansas is about way more than that, and this has been an amazing opportunity for people to see the positive things that Kansas has to offer.

MADDOW: Sharice Davids, congresswoman-elect from the great state of Kansas, and as of right now, the most famous politician in the state of Kansas. You're doing your part. Really appreciate you being here. Good luck to you. Stay in touch.

DAVIDS: Thanks so much. Have a good night.

MADDOW: You, too. We'll be right back.

(COMMERCIAL BREAK)

MADDOW: That does it for us tonight. We will see you again tomorrow.

Now, it's time for "THE LAST WORD WITH LAWRENCE O'DONNELL".

Lawrence, didn't I miss your birthday?

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END

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