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Texas now houses 2,324 migrant children. TRANSCRIPT: 11/28/18, The Rachel Maddow Show

Guests: Ben Wittes, Garance Burke

RACHEL MADDOW, MSNBC HOST:  Good evening, Chris.  Thanks, my friend.  Much appreciated. 

CHRIS HAYES, MSNBC HOST:  You bet.

MADDOW:  And thanks to you at home for joining us this hour. 

In the summer of 1974, the special counsel who was investigating the Watergate scandal wrote a letter to Congress, to the Judiciary Committee in Congress, and letter detailed what his investigation, what his prosecutors and investigators had turned up about criminal behavior by the president at the time, President Richard Nixon. 

Now, by this point, by the summer of 1974, the president`s campaign chairman, who would also have been his attorney general, the president`s White House chief of staff, a whole bunch of other senior White House personnel from the Nixon administration, had already been indicted a few months earlier for very serious crimes.  And in conjunction with that indictment, the grand jury had named President Nixon as a co-conspirator, even though he personally was not included as a defendant in the indictment.  He was the unindicted co-conspirator. 

Now, the legal team working for President Nixon at the time raised a challenge to that.  They basically challenged whether the information in the case, the evidence seen by the grand jury that produced that indictment, produced those allegations against the president, the president`s legal team questioned whether that evidence was actually sufficient to warrant something as radical as naming the serving president of the United States as part of a serious criminal conspiracy.  And so, when the president`s legal team raised that objection, this kind of momentous thing happened, at the height of the summer in 1974. 

Because the Judiciary Committee in Congress, chairman of the Judiciary Committee, wrote to the Watergate special counsel, the prosecutor who had brought that indictment, and said basically, hey, you obtained this indictment, you presented evidence to the grand jury sufficient to warrant this indictment.  If, in fact, that evidence was also sufficient to warrant naming the president as a co-conspirator in these crimes, well, let`s hear it.  What is that evidence?  What is it that you found about President Richard Nixon that justified this allegation that he was in on all of these crimes, too? 

And the special prosecutor for Watergate responded, Leon Jaworski, basically said, OK, here you go, dear Mr. Chairman, happy to.  You send us a subpoena, we will happily send you over our summary of evidence pertaining to President Nixon`s conduct in the Watergate matter.  And the prosecutor Leon Jaworski then produced page after page after page after page of detailed allegations that Nixon had, in fact, committed tons of crimes, including lots of criminal obstruction of justice. 

Quote: Beginning no later than March 21st, 1973, the president joined an ongoing criminal conspiracy to obstruct justice, to obstruct a criminal investigation and to commit perjury, which include making and causing to be made false statements and declarations, making offers of clemency and leniency, and obtaining information from the Justice Department to thwart its investigation. 

For example, there`s evidence that the president conspired with others to defraud the United States, and to commit violations of certain federal criminal laws, to wit, obstruction of justice, which included paying of funds and offers of clemency and other benefits in order to influence the testimony of witnesses.  Making and facilitating the making of false statements and declarations, obtaining information about the ongoing investigation from the Justice Department for the purpose of diverting or thwarting the investigation.  Also, perjury, including the president`s direct and personal efforts to encourage and facilitate the giving of misleading and false testimony by aides.  Also, bribery, by directly and indirectly offering something of value, including clemency and/or a pardon, with the intent to influence testimony before grand juries, courts, and congressional committees.  Also, obstruction of a criminal investigation.  Also, obstruction of a criminal investigation.  It goes on and on and on and on. 

Quote: There`s ample evidence to demonstrate that President Nixon took personal and affirmative direct action to further the conspiracy outlined above.  These allegations against Nixon from 1974, and the evidence that supported these allegations against Nixon, they`ve gotten a lot of attention this year, right?  And that`s in part because a whole bunch of this stuff about Nixon has just been unsealed, just made available to the public for the first time, so there`s historical interest.

But honestly, what is driving a lot of that historical interest, what`s been driving the effort to get a bunch of this stuff unsealed now, is the almost uncannily parallel experience we are having right now in our lifetime when it comes to our current president, right?  I mean, even just looking at this one exchange of information between the Judiciary Committee and the Watergate prosecutor in `74, just pull a couple of those bullet points for a second.  See if any of these things ring a bell, right? 

Making and facilitating the making of false statements and declarations about the investigation.  Offers of clemency to influence the testimony of witnesses.  Obtaining information about the ongoing investigation for the purpose of diverting or thwarting that investigation.  Yes, I mean, these could be captions for a picture book tour of the Nixon administration or the Trump administration, either way. 

I mean, when it came to Nixon, it turned out at the time, and we can now see more clearly than ever, 45 years down the line, it turned out there were mountains of this stuff, this evidence of Nixon`s criminal behavior, mountains of this stuff that was turned up by federal prosecutors and investigators. 

Now, in our lifetime, as yet, we know very little about what federal prosecutors and federal investigators have about our current president.  But nevertheless, we have still got our own mountain of reporting and evidence about an even bigger number of alleged instances of obstruction by the president.  Just stuff turned up by investigative reporting and in some cases, just admitted to by the president and other senior figures themselves, or just committed openly out in public, out loud, I mean, to the point where it`s sometimes been squirmingly awkward for those involved. 

(BEGIN VIDEO CLIP)

SEN. RICHARD BLUMENTHAL (D-CT), ARMED SERVICES COMMITTEE:  Have you talked about this issue with Admiral Rogers? 

DAN COATS, DNI:  That is -- that is something that I would like to withhold, that question, at this particular point in time. 

(END VIDEO CLIP)

MADDOW:  That excruciatingly pregnant nine-second-long pause, brought to you by the director of national intelligence, Dan Coats.  That was the day after NBC News reported that the president had asked him, and also the head of the National Security Agency at the time, head of the NSA, Admiral Mike Rogers, NBC reported that the president had asked them both to make public statements saying that they and their agencies knew that President Trump and his campaign hadn`t colluded with Russia.  So the Russia investigation was way off-base. 

The day before that nine-second pause from Director Coats in Congress, NBC have reported that not only had President Trump directed him as the director of national intelligence and also the head of the NSA to make those public statements to undermine the Russia investigation, but also the two of them, head of the NSA, head of the office of the director of national intelligence, the two of them had talked to each other about that request from the president.  Sort of compared notes after the president approached them both. 

(BEGIN VIDEO CLIP)

SEN. ANGUS KING (I-ME), INTELLIGENCE COMMITTEE:  I`ll ask both of you the same question, why are you not answering these questions?  Is there an invocation by the president of the United States of executive privilege, is there or not? 

ADM. MICHAEL ROGERS, DIRECTOR OF NATIONAL SECURITY AGENCY:  Not that I`m aware of. 

KING:  Then why are you not --

ROGERS:  Because I feel it is inappropriate, Senator. 

KING:  What you feel isn`t relevant, Admiral.  What you feel isn`t the answer -- why are you not answering the questions?  Is it an invocation of executive privilege?  If there is, let`s know about it.  If there isn`t, answer the questions. 

ROGERS:  I stand by the comments I made.  I`m not interested in repeating myself, sir.  I don`t mean that in a contentious way. 

KING:  Well, I do mean it in a contentious way.  I don`t understand why you`re not answering our questions.  You can`t -- when you were confirmed before the Armed Services Committee, you took an oath.  Do you solemnly swear to give the committee the truth, the full truth, and nothing but the truth, so help you God, and you answered yes to that. 

ROGERS:  And I answered that those conversations were classified.  And it`s not appropriate in an open forum to discuss those classified conversations. 

KING:  What is classified about whether or not you should intervene in the FBI investigation? 

ROGERS:  Sir, I stand by my previous comments. 

KING:  Mr. Coats, same series of questions.  What`s the basis for your refusal to answer these questions today? 

COATS:  The basis is that what I have previously explained.  I do not believe it is appropriate for me to --

KING:  What`s the basis -- I`m not satisfied with, I do not believe it`s appropriate or I do not feel I should answer.  I want to understand a legal basis, you swore that oath to tell us the truth, the whole truth, and nothing but the truth, and today you are refusing to do so.  What is the legal basis for your refusal to testify to this committee? 

COATS:  I`m not sure I have a legal basis. 

(END VIDEO CLIP)

MADDOW:  So, already, this stuff is out there, right?  That`s why these senators are able to ask these questions.  In this case, Senator Angus King of Maine, right?  Those two intelligence agency chiefs are on the hot seat there because of public reports that these senior intelligence officials, director of national intelligence, head of the NSA, the president asked them to make statements exonerating the president in the Russia investigation. 

In fact, the day before that exchange with Angus King, "The Washington Post" reported that the president had asked not only for these exonerating statements, the president had asked the director of National Intelligence to personally intervene with the FBI, to tell the FBI to stop its investigation on the Russia matter, including specifically their investigation into the national security adviser, Mike Flynn, right? 

Some of the most powerful obstruction evidence against Nixon from the `70s, some of the evidence against Nixon that is still the most widely remembered stuff, all these decades later, because it made it into the impeachment articles against him, some of the most widely remembered parts of his obstruction effort is when he tried to block the FBI investigation into him by using the intelligence agencies, by using the CIA, telling the FBI there is stuff they couldn`t look into, because those were CIA matters, trying to enlist the CIA in an effort to cover up what he had done and stop the FBI investigation that was going to expose him. 

When it comes to President Trump, apparently trying the same thing, not only did he reportedly ask the heads of two intelligence agencies to help him out when it came to public perceptions of the Russia investigation, he specifically requested that they should intervene with the FBI, tell the FBI to back off.  And according to "The Washington Post," that request was made while another senior official was in the room and witnessed it.  A man named Mike Pompeo, who at the time of this alleged incident, he was the head of the CIA.  He`s since gone on to be secretary of state. 

Here`s how he answered questions about what he saw, what he heard the day he was in the room, in the White House, when he was the supposed witness to the president trying to enlist the director of national intelligence to kibosh the investigation into his campaign as a complete historical mirror to what Nixon got busted for. 

(BEGIN VIDEO CLIP)

SEN. BOB MENENDEZ (D-NJ), RANKING MEMBER, FOREIGN RELATIONS COMMITTEE:  So, Director, this account strongly suggests that the president asked you and Director Coats to interfere with then FBI Director Comey`s investigations into the Trump campaign`s contacts with Russia.  Did President -- what did President Trump say to you and Director Coats in that meeting? 

MIKE POMPEO, SECRETARY OF STATE:  Senator, I`m not going to talk about the conversation the president and I had. 

MENENDEZ:  Did he ask you to do anything as it relates to that investigation? 

POMPEO:  Senator, I don`t recall -- I don`t recall what he asked me that day. 

(END VIDEO CLIP)

MADDOW:  Why would something like that even stand out?  The president in the Oval Office committing blatant obstruction of justice when it`s just you and the director of national intelligence and the president in the room. 

The president asked everybody else to leave and makes this request, will you please shut off the investigation into me?  Will you please intervene with the FBI to make them stop investigating me?  Why would you remember that?  Happens all the time, right? 

Why would you recall?  You know, maybe it does happen all the time.  I mean, just look at where we are now.  Look at the height to which we have risen. 

With Nixon, it was a revelation at the end, all the stuff we learned that he had done, all the stuff that prosecutors and investigators collected evidence of in terms of his criminal behavior.  With President Trump, it`s been a mountain that`s been built up in public, stone by stone, from the very beginning, from the very start of his presidency. 

I mean, President Trump has not credibly denied any of this.  He asked FBI Director James Comey to lay off the FBI investigation into Michael Flynn as it pertained to Russia.  He fired James Comey as the head of the FBI after Comey refused to do that and after Comey refused to make exonerating public statements about the president. 

The president also told Attorney General Jeff Sessions, directed him that he shouldn`t follow the professional ethics advice of the Justice Department, shouldn`t follow Justice Department rules, he should defy that advice and rules and not recuse himself from overseeing the Russia investigation, because the president believed that caused him to lose control of the Russia investigation.  The president told then Attorney General Jeff Sessions out loud and in public, in writing, that he needed to stop the Russia investigation, quote, right now. 

One of the president`s lawyers quickly tried to explain that away by saying it`s not a call to action.  To be clear, the exact quote of the president, out loud, in public, in writing, was this, quote: Attorney General Jeff Sessions should stop this rigged witch hunt right now.

That`s not a call to action.  It was like a fortune cookie thing, or from somewhere, we don`t know what he meant.  It`s ambiguous. 

Just today, out loud, online, the president posted an image suggesting that the deputy attorney general, who until recently oversaw the Russia investigation, he should be jailed and tried for treason.  The president was asked just tonight, quote: Why did you think Rod Rosenstein belongs behind bars?  The president responded, quote, he should have never picked a special counsel. 

So the president just saying out loud tonight that a top Justice Department official should be jailed and charged with a crime, a crime for which the penalty is capital punishment, for having appointed a special counsel in the Russia investigation, in that ongoing investigation. 

The president, in June of last year, told his White House counsel to fire the special counsel leading the Russia investigation.  The president in December did the same thing again.  The president, on August 9th of last year, placed a phone call from his golf club in New Jersey to the majority leader in the Senate, Republican Senator Mitch McConnell, and excoriated McConnell for, quote, refusing to protect him, meaning refusing to protect the president from investigations of Russia interference in the 2016 election. 

Multiple Republicans were then briefed on that conversation, in which the president called the Senate majority leader.  Their accounts then made their way into "The New York Times."  It was never even half-heartedly denied by the president. 

Even more specifically than that, the president repeatedly directed not only Mitch McConnell but also another Republican in Senate leadership, Senator Roy Blunt of Missouri and Senator Richard Burr, chair of the Intelligence Committee, that they should stop the Senate Intelligence Committee investigation into Russian interference. 

Again, this isn`t contested by anybody involved.  Senator Burr confirmed in an interview to "The New York Times" that, yes, actually, the president did contact him and tell him to end the Russia investigation in the Senate.  The president has also personally participated in concocting false public statements about key issues that are a part of the investigation, including the false statement he drafted in the name of his eldest son, claiming a meeting with Russians to obtain damaging information about Hillary Clinton was really a meeting about Russian adoptions. 

I know you`re like, oh, Maddow, that`s cute.  The news flash that the president lied about a thing isn`t news anymore.  I know, I know, I can hear you through the TV, right?

That may be so, the president lies, is like, you know, dog bites man.  It may be so that that`s no longer news.  God rest our souls for that. 

But in the context of a key matter that is actively under criminal investigation, concocting a false public statement to mislead investigators about the nature of that incident, that isn`t just your run of the mill presidential lie.  Legally, that could be a problem.  I mean, go back to `74.  Go back to the summer of `74 for what Nixon got in trouble with, right? 

The president joined an ongoing criminal conspiracy to obstruct justice, obstruct a criminal investigation, and commit perjury, including making false statements and declarations.  And what we have already seen out in public, open source reporting that the president`s Russia lawyers went privately to two crucial figures in the ongoing investigation, Mike Flynn and Paul Manafort, and talked with their lawyers about potentially receiving pardons from the president.  This, at a time when both men were already cooperating with or considering cooperating with federal prosecutors in their investigation of the president. 

Just today, in an interview, the president publicly floated the idea of a pardon for his campaign chairman Paul Manafort.  Why would I take that off the table?  This while Manafort is locked in a struggle with prosecutors about his cooperation and with the president`s lawyers now proudly bragging to "The New York Times" as of last night that while Manafort was supposedly cooperating with them, they in fact were actually using him as a source of intel to find out on behalf of the president what was going on inside the special counsel`s office, what Mueller`s prosecutors were asking about and what they were focusing on. 

And, you know, we`ve heard some other elements of the president`s behavior that sound like this before, it was reported in march by "The New York Times" that the president had asked a couple of other key witnesses who had spent a lot of time with Mueller`s prosecutors, Don McGahn, then-White House counsel, and Reince Priebus, former White House chief of staff.  "The New York Times" reported that President Trump asked both of them detailed questions about their interactions with the special counsel to try to glean information from them about the status of the investigation, talking to witnesses about their testimony to the special prosecutor. 

But now, with this new development with Manafort, that`s a little different, because now the president is doing that with a convicted felon, to whom he`s also openly dangling a pardon.  I mean, if you had been sealed in a vault for the last two years, and you came out today and somebody handed you that litany of basically uncontested detailed reporting and evidence about the president`s efforts to obstruct this serious ongoing criminal investigation into himself and his administration and his campaign, you would think you were reading a bombshell indictment, right?  That signaled the end of a presidency, or at least the middle of impeachment proceedings, right? 

But instead, that`s just the public record.  Just piled up piece by piece, week after week, month after month, into what has ended up into a really big mountain of evidence just on the issue of obstruction of justice.  You don`t realize how big the mountain is until you realize how far down the ground is, but we`re way up here now. 

On the day after the midterm election when the president fired Attorney General Jeff Sessions and installed Matt Whitaker in his place, he admitted almost instantly in an interview with "The Daily Caller" that he had put Matt Whitaker there because of the Russia investigation.  There arose immediate concerns that Whitaker would shut down the Mueller investigation from his perch at the Justice Department, and just a question of when and how and how much we would know about it. 

Shortly thereafter, somebody really interesting ran a really interesting flag up the proverbial flagpole.  The recently departed general counsel at the FBI, James Baker, published a piece at "Lawfare" which drew attention to a really specific part of the history and the legal precedent of presidential criminal misbehavior here, specifically about what Nixon did.  Part of Nixon`s criminal history in Watergate is that he did use contact with the Justice Department to spy on the investigation in them. 

Part of the way Nixon did that was his frequent contact with a man who was then the head of the criminal division at the Justice Department.  His meetings with Henry Peterson, his repeated calls with Peterson, he extracted key information about what was going on in Watergate, what was going on with key witnesses before the grand jury, and Nixon did that so he and his legal team could strategize around it. 

Right now, of course, there are concerns about whether or not Matt Whitaker is playing that role for President Trump.  It was therefore provocative for James Baker, the recently departed FBI general counsel, to publish that piece in "Lawfare", right after Matt Whitaker was named, right?  This was Baker pointing out explicitly and without subtlety that, you know, when Nixon used the Justice Department official as a back channel of information and intel about the investigation that targeted him, that was treated as an impeachable offense for that president.  Ahem, right?

So, this is a very live issue -- whether Matt Whitaker right now is back channeling information about the investigation to Trump.  How we`ll find out about it, if that`s happening, who will prosecute it or otherwise try to bring about accountability for that, if it is proven, which has made all the more complicated, all the more dire and all the more urgent by the prospect that Matt Whitaker may not just be providing intelligence about the investigation to the White House, he may be actively throttling the investigation secretly right now from inside the Justice Department, and how would we know about that? 

On top of that, within the last 24 hours, we now have new evidence that the president definitely, this is confirmed, uncontested, that he has another ongoing source of information from inside the Mueller investigation, namely his former campaign chairman, Paul Manafort.  This revelation that his former campaign chairman, who is supposedly cooperating, instead has been effectively functioning as a spy for Trump`s defense, inside the prosecution. 

That is obviously blowing up the criminal case that involves Paul Manafort, but it also means the president and his legal team are now admitting out loud, in public, that they are colluding with a convicted felon to surreptitiously gain intelligence on the prosecution, basically in order to discredit and outmaneuver those prosecutors who are investigating the president.  They are just openly admitting it, right, which would be a massive expose if it were unveiled as an expose.  As it is, it`s just piled one more rock on top of the mountain, because they`re talking about it openly. 

It does also mean, though, that for once, we might actually be in truly, truly legally unprecedented territory, right?  I mean, yes, Nixon got a back channel into the Justice Department, we know a little bit about what Nixon did.  Nixon didn`t use a convicted felon in the middle of his criminal case as his back channel, right? 

I mean, we have now, between what we learned in the `70s and what was unsealed this year about Nixon, we`ve got now all the evidence about what Nixon did and it`s staggering.  But even Nixon never did anything like this.  And so, if this is all happening in plain sight right now, how does it get fixed?  And by whom?  And what are the biggest risks for all of us now in terms of whether or not people will be held accountable for what they`ve done in plain sight? 

That`s next.  Hold on.

(COMMERCIAL BREAK)

MADDOW:  Just before Thanksgiving break, we covered on this show a remarkable dive into a very resonant and relevant part of history.  It was published by the influential legal site "Lawfare", and it looked at what happened in Watergate when President Nixon was having improper contacts with a high ranking Justice Department official, just as Watergate was playing out.

The piece looked at how it is a criminal matter, is treated as an impeachable offense for the president to be using inside information about a Justice Department investigation to plan his own defense.  It was a provocative thing for "Lawfare" to publish that piece because of what it says implicitly about the current president now, now that he`s picked somebody to oversee the Justice Department as a whole, and specifically the special counsel investigation into this president and his campaign.  But it was also a really provocative piece because of who wrote it. 

That analysis is not directly about President Trump, never mentions the current president by name, but it explores Watergate history in a way that people can see it pretty bluntly for themselves, and it was co-authored by the former general counsel of the FBI, James Baker, who was one of the people who former FBI Director James Comey confided in about his troubling interactions with President Trump, when it came to President Trump pressuring him about the FBI investigation into these matters. 

Since we had that question so implicitly, provocatively raised about what happens when a president gets information about an investigation into himself improperly, since then, we have gotten information that the president has also a different source of information from inside the investigation, namely his convicted felon campaign chairman.  The president`s attorney Rudy Giuliani has confirmed the arrangement, and it`s interesting enough now to focus on what that might mean for the criminal case against Paul Manafort. 

But what does it mean for the president?  This feels like a momentous thing, putting our finger on exactly what this means legally and in terms of the size of this scandal, I think, involves some historical reckoning, as well as some legal reckoning. 

Joining us now is Ben Wittes.  He`s editor in chief of "Lawfare", which published that landmark piece.

Mr. Wittes, thank you for making the trip to be here.  Much appreciated.

BEN WITTES, EIDTOR IN CHIEF, LAWFARE:  Happy to be here. 

MADDOW:  So, you published this piece for Mr. Baker, who recently departed from the FBI as their counsel.  And it did raise a very provocative allegory, even though he didn`t explicitly spell that out.  At least that`s how I talked about it on TV and that`s how I saw it. 

Is that how you saw it when you decided to publish it? 

WITTES:  Look, I think nobody reasonable can read that article with an awareness of what`s going on in the current world, and not see some serious parallels.  So let`s tick through a couple.  I wrote some down. 

MADDOW:  OK.

WITTES:  Number one, the article details repeated White House/DOJ communications, Justice Department communications on a matter at which the White House, the president himself, had an active personal interest. 

Number two, the article details using the Justice Department to gather intelligence -- using these contacts to gather intelligence -- by the president about the state of the investigation. 

Number three, describes a senior DOJ official going to the White House and warning the president that one of his senior aides has a serious problem and is compromised.  Does that sound familiar? 

MADDOW:  Uh-huh.

WITTES:  Number four, the president protests to a senior Justice Department official.  These are good guys, you know --

MADDOW:  He doesn`t fire them. 

WITTES:  Yes, and he doesn`t want to fire them.  He`s really upset about that. 

Number five, it describes the attorney general recusing.  By the way, Nixon took that relatively well compared to Trump. 

Number six, he describes holding the FBI directorship over a senior Justice Department official as a sort of inducement to handle the investigation the way the president wants.  You know, that kind of sounds familiar, too. 

And, number seven, it describes the president looking and seeking from senior Justice Department officials to know whether they have developed adverse information about the president himself. 

And I think the reason this is a powerful article is that all seven of those items are -- have direct parallels in the news of today and of the last 18 months.  And so I don`t -- like, the article is an article about history.  It`s an article about how Congress experienced that set of things. 

And, by the way, they didn`t look at it and say, you know, we don`t -- we`re not going to pay attention to what the president says.  We`re going to focus on what he does, we don`t read the tweets, not that Nixon tweeted.  They said, this is an unacceptable way for the president, who has taken an oath to preserve and protect the Constitution and has a duty to take care that the laws be faithfully executed, this is an unacceptable fashion for the president to engage with an investigation of, among other things, his White House and himself.  And that is one of the articles of impeachment against Richard Nixon. 

MADDOW:  And that -- I want to be specific about that bottom line, because what happens with Nixon is that it does end up being part of the articles of impeachment against him.  But we now also know in part because of some documents that were unsealed because of litigation that you were part of to get this stuff unsealed, we now know this was not a matter that Congress became interested in, these are all things that prosecutors, special prosecutor`s office, gathered information about, put together as criminal evidence, evidence of criminal behavior by the president, and referred it to Congress, who then put it forward in articles of impeachment. 

But they saw this as criminal behavior by the president, that aside from the question of whether or not the president could be indicted, this was a matter not just of congressional interest, it was a matter of the president being a felon. 

WITTES:  Right.  So this is, I think, a really important point, and it has immediate implications for the present day.  We often throw around questions like, oh, did the president just obstruct justice?  We talk in this language that refers to specific criminal statutes or categories of criminal statutes. 

Let`s distinguish between impeding an investigation and the crime of obstruction of justice and what -- if you look at those Jaworski documents that you were just talking about, Jaworski is interested in the question, did the president commit a crime?  Now, he eventually decides he`s going to name him as an unindicted co-conspirator, not going to indict him while he`s still in office.  But his focus, he`s a prosecutor, his focus is on criminal acts. 

MADDOW:  And he describes them as committing crimes. 

WITTES:  Committing crimes.  And he treats it entirely in a criminal context. 

When that information goes to Congress, their job is not to decide, did he commit crimes.  Their job is to say, did he commit an offense that is unacceptable in a president who has taken an oath to preserve and protect the Constitution, and who has a duty under the Constitution to take care that the laws are faithfully executed.  That is a different question. 

And part of my point here is that the impeachment question is a different question than the criminal question.  It is possible, of course, that you`ve done both. 

MADDOW:  Right.

WITTES:  Right?

MADDOW:  The criminal investigation can produce the grounds for impeachment. 

WITTES:  But the question Congress should not -- should be asking itself is not, did the president commit a crime in these interactions, say, with Paul Manafort?  Because to add to all this crazy stuff that has parallels with Watergate, what the president appears to have done, which was used -- which was we might say collude with a felon, a convicted felon to gather intelligence on federal prosecutors who work for the United States Department of Justice, which is to say for him, his administration.

And, you know, he -- we can ask the question, how does that interact with the criminal law?  But the first and most important question to ask about that, is that an acceptable thing for the president to do?  Is it acceptable for the president to screw up his own investigation, his Justice Department`s investigation by doing that and then dangling a pardon in front of that person`s face? 

MADDOW:  Ben Wittes is the editor in chief of "Lawfare".  Ben, thank you for being here.  I feel like this is an important time and like clarity is priceless at this point.  I really appreciate you helping us. 

WITTES:  Good to see you. 

MADDOW:  Thanks.  I`ve actually never missed a handshake before.  Let`s do it again.  Very good.  Thanks.

We`ll be right back. 

(COMMERCIAL BREAK)

MADDOW:  Over the past few weeks now, there`s been a tempest in a teapot in the news about politics, as to whether or not Nancy Pelosi would be the next speaker of the House.  There`s been new, breathless beltway reporting every day about how much trouble she`s in, how much trouble her party is in. 

The reason I`m being a little snarky is because all this comes just as Nancy Pelosi led her party to an electoral victory that will return them to power in the House with the largest margin victory in the popular vote of any party ever in the midterm election.  No party ever in the history of the country has won a midterm election by larger margin than Pelosi`s Democrats just did in the House. 

And so, now, obviously, Nancy Pelosi has to go, she`s in big trouble.  It`s been a little strange, the timing of this particular beltway mishegoss.  Today, despite that beltway mishegoss, Nancy Pelosi officially and overwhelmingly received the nomination to be the speaker of the house from the Democratic Caucus today. 

Still, though, the somewhat inexplicable spin just won`t stop.  Check this out.  David Nir who`s the election guru at the liberal blog "Daily Kos", he pointed this out today, and he was right to do so.  This is "The New York Times" headline from 2015, when Paul Ryan received his nomination to be speaker of the House: Republicans nominate Paul Ryan as House speaker.  This is how the same newspaper covered Pelosi`s nomination.  Democrats nominate Pelosi to be speaker, but with significant defections. 

All right.  When Paul Ryan got that headline, he had 200 votes in favor, and 43 against.  Nancy Pelosi today received more votes in favor, and fewer votes against than Paul Ryan did in 2015.  She had 203 yes votes and 33 no votes today from her caucus.  Three more yes votes and 10 fewer no votes.  Yet she gets the big asterisk, she gets the significant defections headline. 

After David Nir pointed this out on Twitter, "The New York Times" saw fit to change its headline.  The Twitter account Editing The Gray Lady, which monitors changes at "The New York Times" website, they caught the change here.  It goes from Democrats nominate Pelosi to be speaker with significant defections to this: Democrats resoundingly nominate Pelosi as speaker, but defections signal fight ahead. 

OK, OK.  You do you right? 

The final vote for speaker on the full house floor won`t happen until January.  And even as the anti-Pelosi effort has gotten so much attention from the beltway press and has already sputtered and failed in fairly humiliating fashion today, it looks like we`re probably going to keep hearing about it incessantly until it`s over and probably even after then. 

I would tell you to buckle up, but don`t bother.  It`s not dangerous.

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MADDOW:  The biggest federal prison in the country is in one of our littlest states.  The federal Correctional Institution in Fort Dix, New Jersey, holds more than 4,000 prisoners. 

But this facility, this one here, this is relatively new, and it`s starting to rival the one in New Jersey at Fort Dix.  This new one was opened in Texas by the federal government in June of this year and apparently, it is gigantic, as well.  We just learned it`s gigantic, 2,300 people are being held at this brand new facility in Texas.  That makes it bigger than every single federal prison in the United States except for that one old mega prison in New Jersey. 

But this big, new facility in Texas, it is not a federal prison, not technically.  What it is, is a giant de facto jail for kids who haven`t been found to have committed any crimes. 

This is the shelter built by the Trump administration to detain kids who cross the southern border.  It was built in Tornillo, Texas, during the height of the family separation crisis when the White House realized they didn`t have anywhere to put all the kids they had just taken away from their parents.

This was supposed to be a temporary facility.  That`s how the White House sold it to the public.  They promised they were opening it in June and would be closed by July 13th.  Now, "The Associated Press" is out with a remarkable, new report about how the Trump administration turned that temporary shelter into a full-blown, prison-sized, gigantic detention center for kids who haven`t committed crimes. 

As of now, quote: 2,324 largely Central American boys and girls are sleeping inside the guarded facility in rows of bunk beds in canvas tents.  Teens with identical haircuts and government issued shirts and pants could be seen walking single file from tent to tent, flanked by staff at the front and back.  By day, minders walked the teen detainees to their meals, showers, and recreation on the arid plot of land guarded by multiple levels of security.  At night, the area around the camp, that`s grown from a few dozen to more than 150 tents, it is secured and lit up by flood lights.  More people are detained in Tornillo`s tent city than in all but one of the nation`s 204 federal prisons.  And yet construction continues. 

Still getting bigger, construction continues. 

The reason this tent city in Tornillo, Texas, is bigger than almost every federal prison is not just because of the family separation policies, because the White House has dialed up the requirements that need to be met before these kids are released to anyone.  That means those deliberate policy changes with the White House have not only required the creation of these new facilities, but they have ensured they`re going to keep getting bigger and bigger and bigger and bigger since they`re not giving these kids a way to get out. 

More on this in a moment.  Stay with us.  

(COMMERCIAL BREAK)

MADDOW:  Just a bit of new reporting from the A.P. on the massive and growing tent city in Tornillo, Texas, where our government is currently holding more than 2,000 kids in what is basically a prison camp, holding them there indefinitely. 

A 17-year-old from Honduras who was held at the facility earlier this year tells the "A.P.", quote, the few times they would let me call my mom I would tell her one day I would be free, but really I felt like I would be there for the rest of my life.  I feel so bad for the kids who are still there, what if they have to spend Christmas there, they need a hug and nobody is allowed to hug there. 

Joining us now is Garance Burke.  She`s an investigative reporter with the "A.P." who broke this story.

Ms. Burke, congratulations on breaking this devastating story.  Thanks for being with us tonight. 

GARANCE BURKE, ASSOCIATED PRESS INVESTIGATIVE REPORTER:  Thank you, Rachel. 

MADDOW:  So, this was supposed to be a temporary facility to address a temporary shortage in facilities for kids.  How did it become so big and why is it still open? 

BURKE:  Well, it was intended to be open for just about a month, for short- term stays, for migrant teens about to be reunited with their families.  But then, as more teens kept coming and as the Trump administration ratcheted up the background checks required for their families, kids started lingering there for much longer.  In fact, we found some kids have been there since June. 

MADDOW:  With a short-term facility ad hoc converted into what turns out to be a long-term facility, one of the things you worry about is there aren`t adequate services for people who are held there on a longer term basis.  You describe some pretty disturbing developments in terms of the way the Trump administration is running this place is they basically waived some forms of security checks, some forms of security checks for some of the staff that are working with these kids. 

BURKE:  That`s right.  Yes, the facility is on federal land.  And so, earlier this year, the director of the Office of Refugee Resettlement, Scott Lloyd, personally waived the requirement for the more than 2,000 staffers working out there to go through the really rigorous FBI fingerprint background checks. 

Now, FBI officials say those are much better than, say, just running somebody`s name through a criminal history database because you can`t lie about your fingerprints, although you can make up somebody else`s name.  What we also found, which was surprising to us, is that there are really very few mental health staffers out there for these kids and these are teens who have been on a really dangerous journey, often from Central America, they`re currently detained and so have experienced trauma. 

And so, what the inspector general ended up finding in a memo that was issued yesterday is that the combination of these two issues is really putting the kids` safety at risk. 

MADDOW:  One of the things that struck me also in your reporting was a brief mention that there are no classes for these kids.  There`s no formal classroom setting for them.  This is more than 2,000 kids, they`re teenagers.  The U.S. government is holding them indefinitely and sometimes for long periods.  They don`t go to class? 

BURKE:  Well, yes.  And, I mean, I should say this is not a prison camp per se, this is a detention facility, but you certainly can`t leave.  And according to some lawyers I spoke with, it`s also very hard to get a textbook. 

There are some educational services that are offered.  There are lessons that the private contractor provides to the kids, but those are really big affairs.  You know, 50 kids with one teacher for only an hour, a couple hours a day.  So, it`s nothing like the formal schooling that most teens would be having at that age. 

MADDOW:  Garance Burke, investigative reporter with the "Associated Press", just critical reporting here.  Thank you so much very much for making the time to talk to us about it tonight.  Thank you. 

BURKE:  Thank you, Rachel. 

MADDOW:  I should mention that Benny Thompson is the Democrat who`s the incoming chair, will be the incoming chair of the committee that oversees this part of the government is already making some very large noises about the Democrats going after this issue very aggressively when they take over in the New Year. 

We`ll be right back.  Stay with us.

(COMMERCIAL BREAK)

MADDOW:  The Senate part of the 2018 elections is now over.  Mike Espy did not become the next U.S. senator for Mississippi but the Democrat did pretty well considering he was a Democratic running in Mississippi.  Mike Espy last night flipped four counties that had gone for Trump in 2016.  He outperformed Hillary Clinton in 2016 and Barack Obama in 2012 in key suburban counties. 

In a state Trump won by 18 points, Democrat Mike Espy got within eight points of winning last night.  So, no, Democrats did not win that Senate race last night, but they got to feel like they did all right with Espy.  They made real progress in this election.

That does it for us tonight. 

Now -- now it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL". 

Good evening, Lawrence. 

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