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Chief Justice Roberts joined court's liberals. TRANSCRIPT: 2/8/19, The Rachel Maddow Show.

Guests: Charniele Herring, Dahlia Lithwick

JOY REID, MSNBC HOST:  Right, and your reporting also said that the head of security at Bedminster was actually told that there were workers potentially working there in legal documents. 

DAVID FAHRENTHOLD, REPORTER, "THE WASHINGTON POST":  That`s right.  So, one of the things the Trump organization said in the last few weeks was we didn`t know.  We didn`t know there are all these people working for us.  They fooled us. 

Well, we found this police report from back in 2011 where a Bedminster P.D. cop is called to a hit and run at the course, the suspect is an undocumented immigrant who works at Trump`s course.  The cop discovers this and tells the head of security, look, your employer here, I`m here because you have an employee who was in this accident -- 

REID:  Yes.

FAHRENTHOLD:  -- and was here undocumented.  Nothing seems to have happened after that. 

REID:  Wow.  David Fahrenthold, great reporting.  Thank you so much.  Really appreciate you joining me tonight.  Thank you. 

That is all for ALL IN this evening.  You can catch me this weekend on 10:00 a.m. at Saturday and Sunday morning for "A.M. JOY."

"THE RACHEL MADDOW SHOW" starts now.  Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST:  Good evening, Joy.  Thank you very much, my friend.  Much appreciated.

Thanks to you at home for joining us.  Happy Friday. 

We`re going to start tonight with a big update on the story that we have been covering since just about exactly this time last night.  When we last left the million-mile-an-hour on the blink wildly spinning out of control carousel that is the news cycle now.  The richest man on earth, Jeff Bezos, the founder of and the owner of "The Washington Post", he had just published what he says were the extortion threats from a supermarket tabloid in the United States.  This same tabloid, of course, that has been named by federal prosecutors as a participant in a felony case involving illegal campaign contributions to the president`s campaign in 2016. 

The president`s longtime lawyer, of course, is about to start a fairly long federal prison sentence in part for his role in those felonies.  That lawyers himself, Michael Cohen, and the federal prosecutors who worked that case have put in writing in court materials and have said in court that the president himself was not just the beneficiary of that illegal payment scheme, he was the person who directed the commission of those crimes for which Michael Cohen is now going to prison. 

Now, the other party who prosecutors say took part in those crimes was this supermarket tabloid, and that tabloid escaped prosecution and its executives and officers escaped prosecution for their role in that felony scheme because they cooperated with prosecutors, under terms that were laid out in this non-prosecution agreement, which prosecutors have since made public. 

And we can tell from this non-prosecution agreement that we can read that this tabloid cooperated with prosecutors to help them build that felony case that implicates the president and that is sending the president`s lawyer to jail in order to participate with prosecutors in that, in order to help them build their case, the tabloid itself had to come clean with those federal prosecutors about its own illegal payments to benefit the president`s campaign.  And we can tell from the fine print toward the back of that agreement that as a consequence of entering into this agreement with prosecutors, the tabloid, that company, they are bound now, they are legally bound by this agreement to stop committing crimes, to not commit anymore crimes for a period of at least three years. 

Otherwise everything the tabloid and its officers and its employees told prosecutors as part of their cooperation in that felony case, everything, including all details of the firm`s own confessed illegal payments to the president`s campaign and everything else they had to tell the prosecutors in order to get themselves that deal.  If the tabloid commits any other crimes, the non-prosecution deal is off and that would mean instantly that everything they have confessed to and everything prosecutors came to learn about that firm and its officers and its employees, all of it would lose its shield from prosecution. 

So, last night, as we reported, Jeff Bezos, owner of "The Washington Post," he published what he says is correspondents from that same tabloid.  One of their senior editors telling Mr. Bezos that the tabloid will publish embarrassing naked pictures of him unless he does what they demand. 

After Bezos went public and published that correspondence last night, after that bizarre turn in our lives as Americans, which happened this time last night, today multiple news outlets reported that, in fact, as we had anticipated last night the federal prosecutors in the Southern District of New York are now on this.  The same prosecutors who did that deal with the tabloid, with American Media, the parent company of that tabloid, the same prosecutors who did that deal with them and secured that cooperation as part of the -- its prosecution of those felony charges involving the president`s campaign, multiple news outlets report today that those same prosecutors are now reviewing this alleged extortion attempt by the tabloid and its executives to see if that effort constitutes a crime, constitutes the sort of thing that would break the terms of that non-prosecution deal. 

If that non-prosecution deal has been breached because the tabloid committed a crime in this extortion effort or anything else they`ve done, then the non-prosecution deal will be off and everything that tabloid, its officers and its employees provided to prosecutors along the course of this case will instantly become fair game for an indictment, an indictment of that firm and/or its officers and/or its employees.  And on top of that, every piece of information they provided to prosecutors as part of that earlier cooperation effort, every single thing they handed over.  Every single thing they told them will be presumed admissible in court against them. 

So, you think about, like, being caught up in something like this.  On the one hand, you`re psyched to get a Cooperation deal.  You`re psyched to get a non-prosecution agreement.  But the terms of those kinds of deals are onerous, and if you break those deals, everything is against you.  They -- the government, the prosecutors you make that deal withhold I with hold it over you in a way that is almost impossible to fight against. 

So, we could see this coming last night.  But, again, this is a big deal.  Multiple news outlets now confirming that prosecutors in the southern district of New York are now pursuing this.  And today, "The Wall Street Journal" also added some really important reporting on another big piece of this. 

And this is the part of the story that I think a lot of people have felt like, oh, that`s too hard to understand or that`s too complex or that`s part of this that I don`t get.  I`m going to sort of set that aside.  Today, "The Wall Street Journal" made it super obvious and plane because today, "The Wall Street Journal" described efforts by the government of Saudi Arabia to essentially buy themselves good Western media coverage, to buy good Western media coverage for themselves and bad western media coverage for their enemies. 

"The Wall Street Journal" today describes how the Saudi government and particularly the Saudi crown prince, who has taken over the Saudi government, they`ve essentially been lining up really lucrative well-paid media partnerships with a whole bunch of Western media outlets, including Bloomberg and Vice and "The Independent" in the U.K. and others. 

And that is really clarifying reporting today because there have previously been accounts that AMI, the parent company of that supermarket tabloid which is caught up in the Trump campaign finance felonies and all this stuff, they`re now caught up in this Jeff Bezos thing, there have been previous reports that that company, AMI, was working on a very sort of similar expensive deal with the Saudi government, a very rich deal with the Saudis. 

That never made sense.  What would the Saudis want to do with this tabloid?  What would the Saudis want to do with this "National Enquirer" company?  Is that all that valuable to the Saudis?  It makes a lot more sense trying to buy Western media partnerships of all kinds, with all different kinds of media in order to improve their image in the West and hurt their enemies. 

If AMI is just one piece of that effort by the Saudi government, that makes more sense.  And AMI`s efforts to pursue that kind of a lucrative partnership deal with the Saudi government would explain why they started publishing weird stuff like this, this booklet, this "We love Saudi Arabia.  It`s a magic kingdom" booklet that AMI inexplicably started putting on the "National Enquirer" supermarket checkout lines in the United States last year. 

I mean, random American supermarket shoppers who were used to looking over at the "National Enquirer" thing by the checkout line and seeing terrible photo shop jobs that make Angelina Jolie look like an alien or all caps headline how Hillary Clinton has 40 different diseases and she`s definitely going to jail.  That`s what you`re used to seeing on the cover of the "National Enquirer" at the supermarket. 

Instead, there was this random gloss glossy booklet about how wonderful and handsome the crown prince of Saudi Arabia is.  Isn`t Saudi Arabia kind of a magic kingdom? 

So strange when they did this.  There is no ads in this thing.  It`s literally just a gigantic brochure for how beautiful and wonderful Saudi Arabia is. 

It was weird.  But it makes sense.  If what they were doing is demonstrating the kind of product they could produce to promote the Saudi crown prince and the Saudi Arabian government, if the price was right.  And one of the biggest problems that Saudi Arabia has in the Western world right now, one of the biggest problems they`ve got in the western media right now and the bipartisan and international outrage over the murder of a "Washington Post" journalist named Jamal Khashoggi, who is a critic of the Saudi government and he was murdered inside a Saudi consulate last year under circumstances that indicate Saudi government involvement at the highest level. 

And no news outlet has beat the drum louder or harder against Saudi Arabia and the Saudi crown prince for that murder than the paper that employed that murdered columnist, "The Washington Post", which is owned by Jeff Bezos, who has lately been threatened with naked picture, mass humiliation by this tabloid.  That is not only caught up already in a felony scheme to do illegal political favors for the U.S. president, they`ve recently been caught swimming backstroke in the lap of the Saudi crown prince, including reportedly getting help from the White House to facilitate the Saudi contacts and implicitly giving the White House`s blessing to an AMI Saudi Arabian deal. 

Bleh.  That`s just -- ick.  Nice world we live in now, right?  That`s what this presidency is -- covering our national politics now feels like covering, like, arcane, historic, dark, nepotistic corners of some like Malaysian kleptocracy scandal, right?  This is our White House now.  This is the milieu of our national politics.

ABC News reports tonight that donors to Donald Trump`s re-election campaign have, surprise, been paying for something they might not have known they were paying for.  The Trump re-election campaign has been tapped by Jared Kushner, the multimillionaire son-in-law of the president, to pay for his mounting legal fees, as he`s been caught up in various White House scandals.  I mean, presumably Jared Kushner could afford to pay for his own lawyers himself, but why bother when you can have the little people pay those bills for you? 

Jared Kushner is the son and heir of the Kushner family real estate fortune.  He is also, of course, married into the Trump family real estate fortune.  But the people paying his legal bills right now are the people who have been going online to buy red baseball hats that say "Make America Great Again" and the people who have been inspired by pushy e-mails to click the "donate $5" button where it says the president will build the wall if you send him $5. 

I mean, what those donations are actually going toward is, you know, putting another car in the garage of Jared Kushner`s expensive lawyers, buying them more office space, giving those partners at those law firms bigger bonuses for working for Jared.  That`s what Trump campaign donors are paying for right now.  That`s a very specific way of making America great again.  Would you like to make your donation recur every month? 

And maybe that -- maybe that`s better, actually, than what we learned today about the Republican National Committee, the RNC, the Republican National Party.  CNBC reports today that RNC funds are being used in an ongoing way to pay the president`s former longtime bodyguard Keith Schiller.  $15,000 a month, he`s getting and for no discernible reason. 

Before the RNC chose the location for next year`s Republican National Convention, the nominating convention, which is going to be in Charlotte, North Carolina, Keith Schiller was purportedly on the payroll for $15,000 a month because he was advising the RNC on security aspects of how they should make their choice for which city and which site would be the most appropriate for the Republican National Convention.  But that decision is done now.  Charlotte was announced as the choice for the convention last July. 

But Keith Schiller has apparently just been getting paid $15,000 a month every month for nobody quite knows what now.  I mean, at least for awhile they tried to justify those payments with the whole RNC site selection thing.  But since then, how do they even -- there`s not even a cover story. 

And part of the reason this may end up being a problem for the RNC is that Keith Schiller has been called to testify in the Russia investigation before at least one committee in Congress investigating that matter, and there have been reports that he`s also been called in to speak with the special counsel.  As somebody who was a body man and bodyguard for then candidate and now -- and then president Trump, Keith Schiller might be an important witness.  If the RNC is randomly paying him $15,000 a month now in an ongoing way for no discernible work, why those investigations are ongoing, there may ultimately be questions about whether he`s being paid in conjunction with his testimony or lack thereof. 

I mean, there is no inherent problem with somebody on the payroll getting called as a witness, but there might be an inherent problem is somebody is put on the payroll because they have been called as a witness. 

Today, the president`s longtime political adviser roger stone made an unusual plea to the federal judge who was hearing his case in Washington, D.C.  That judge is the same judge who has handled the case Robert Mueller brought last year against a dozen Russian military intelligence officers from the GRU.  It`s not a coincidence that Roger Stone`s case is being handled by that same judge who is doing the GRU case. 

That judge, in fact, was assigned to Roger Stone`s case specifically because when prosecutors indicted Roger Stone, they said in his indictment that his case is explicitly related to this other case number, and that is the case number on the indictment of all those GRU Russian military intelligence officers.  Prosecutors say these are related cases, Roger Stone and the GRU. 

And it sort of makes sense on the surface.  I mean, this is not a legal analysis, this is just observing it from a news point of view, but Roger Stone is accused by prosecutors of lying to Congress about his interactions with the entity that distributed the documents that were stolen from the Democratic Party and the Clinton campaign by Russian military intelligence, by the GRU.  So it sort of logically makes sense that the judge hearing the case about the GRU stealing all that stuff, that judge would also end up hearing the case about any potential American involvement in disseminating that stolen material or lying to Congress to try to obscure that. 

Well, Roger Stone and his lawyers today contested that in court, arguing that this shouldn`t be the judge on his case, and his case should never have been linked to that indictment of all those Russian military officers in the GRU.  They argued that there`s no link between these cases.  Quote, there is no nexus of any kind between these two cases. 

And, again, I am not a lawyer and I don`t have any special insight into this case, but might I suggest that Roger Stone himself has previously suggested that actually there is quite a nexus between himself and that other case about the GRU.  Like, for example, when the GRU indictment was unsealed and he immediately volunteered to multiple news outlets at the time of the indictment, hey, that`s me.  Hey, I`m in that.  I`m the U.S. person who is mentioned in that Mueller indictment of all those GRU officers. 

Literally, when all those GRU guys were charged by Mueller, Roger Stone came out to say publicly to anyone who would listen that he wanted everyone to know that he`s in that indictment.  That U.S. person in that indictment, that`s him.  I`m in that.  I`m part of that.

Now that he`s been formally charged with multiple felonies and prosecutors agree and say, yes, sir, you are in that indictment, you are related to that Russian military intelligence case, now today his lawyers tried to tell the court that he has nothing to do with it.  There is no nexus here.  Why is he being mentioned in conjunction with that case? 

What`s more interesting to me, though -- today, though, despite all that stuff involving Roger Stone, is another filing we got in federal court today in the case of Maria Butina.  Maria Butina, you`ll remember, is a Russian citizen.  She`s been charged with being a secret agent of the Russian government operating in this country to influence the U.S. conservative movement, and the U.S. Republican Party on behalf of the Russian government ahead of the 2016 election.  Maria Butina was arrested in this country and charged last summer in July. 

In December, she pled guilty and agreed to start cooperating with federal prosecutors.  Well, today -- this is fascinating.  Today, her defense team and prosecutors, so both sides in her case jointly filed this request with the court to delay her next appearance and to delay any move toward the sentencing in her case.  Both the prosecutors and defense jointly telling the judge today, quote, the defendant`s cooperation is not yet complete and the parties are not prepared to advise the court about potential sentencing dates. 

So, Maria Butina had been due in court next week on Tuesday.  Her defense team and prosecutors are now jointly asking the judge in her case to delay that appearance to allow her further time for more cooperation, specifically until February 26th, which is two and a half weeks from now.  It`s an oddly specific amount of time. 

I`m not sure what they`re expecting to happen between now and two and a half weeks from now, which will then allow her case to go forward, but I will note they`re putting off her case until February 26th.  House Intelligence just put off Michael Cohen`s testimony to February 28th, saying in the interest of the investigation they cannot have him testify before then, but as of February 28th, it will be clear, he can go. 

What`s going to happen between now and them 26th and February 28th?  I don`t know. 

But, of course, all day long today, the acting Attorney General Matthew Whitaker testified in open session before the House Judiciary Committee.  If you took six straight hours out of your day and glued your eyeballs to the Whitaker hearing, you know what it was like.  If you didn`t spend your entire day watching that hearing, though, I will give you here a cool, crisp refreshing taste of what that hearing was like today. 

I don`t know if Matthew Whitaker was especially thirsty just today or maybe he is always this serious and conscientious about hydration.  I commend him, though.  I always forget to drink water.  I wish I was this good. 

One of our producers today on a lark pulled just the clips of him drinking water and it goes on forever.  It`s like a lullaby for your kidney health.  At one point, he had three different water bottles going on at one time. 

Later on in the hearing, there was a brand change because he drank all there was of one kind of water.  So, they had to melt a new glacier for him and that meant new label.  If you were worried he was going to run out entirely, he might have depleted his stash before the hearing.  Whoop, up pops another stash.  That one is almost empty. 

Don`t worry.  There`s more.  Situation is fine.  He`s going to be OK.  It`s refreshing. 

We also learned today why it took the acting attorney general six hours to answer what should have been fairly routine questions before Congress, particularly he has most of them ahead of time.  Every time Mr. Whitaker today was asked to give even a simple answer to a direct question, what we found today was that a lot of extra stuff came out.  The same stuff over and over and over again. 


MATTHEW WHITAKER, ACTING ATTORNEY GENERAL:  Chairman, thanks for that question. 

Congressman, thanks for that question. 

Congresswoman, thank you for that question. 

Congressman, I`m not going to go into specifics of the briefing. 

I`m not going to characterize that investigation. 

I`m not going to comment about my conversations with the president. 

Congressman, I can understand that this is an important issue to you. 

Congressman, I can tell this is an important issue for you. 

I really don`t have any visibility as I sit here today. 

As I sit here today, I don`t know off the top of my head. 

As I sit here today. 

As I sit here today. 

Congressman, I have no idea as I sit here today. 


MADDOW:  Can you guess what was on his flash cards for his prep?  As I sit here today, I can tell you how he hoped to get out of answering any questions that are important to you, Congressman. 

We did get like a half cup of actual information from Mr. Whitaker today, but to get to that half cup of information, you had to boil off a ton of nonsense.  So, here`s the reduction sauce version of what we actually learned, what was actually new information in Matt Whitaker`s testimony today.  In order to get there, again, you have to cut out all the nonsense nervous word salad and water drinking. 

So what we did here is we just cut this down to the question Whitaker was asked and what he finally got around to saying in answer to the question. 


REP. JERRY NADLER (D), NEW YORK:  Yes or no, since your appointment as acting attorney general, have you been briefed on criticism or counterintelligence matter within the special counsel`s purview? 

WHITAKER:  I have been briefed on it. 

NADLER:  At any point since that briefing, have you communicated any information you learned in that briefing to President Trump? 

WHITAKER:  But to answer your question, I have not talked to the president of the United States about the special counsel`s investigation. 

NADLER:  So the answer is no?  Thank you.  To any other White House official? 

WHITAKER:  I have not talked about the special counsel`s investigation with senior White House officials. 

NADLER:  Have you ever been asked to approve any request or action to be taken by the special counsel? 

WHITAKER:  There has been no event, no decision that has required me to take any action, and I have not interfered in any way with the special counsel`s investigation. 


MADDOW:  So, bottom line, Matthew Whitaker says he has been briefed on the Mueller investigation.  He says he hasn`t told the president about that briefing, nor has he told other senior officials at the White House about that briefing, and he says he hasn`t interfered with the special counsel`s investigation. 

And other than that, he wouldn`t answer anything else.  So, that`s it.  Here`s your six hours back. 

That said, I should mention there was actually one other thing that we did learn from him today.  You might remember what Matthew Whitaker`s job was before Trump named him acting attorney general, part of what he did to prepare himself for becoming President Trump`s choice to be the nation`s chief law enforcement officer, part of his preparation for that job he was associated with a company called World Patent Marketing. 

World Patent Marketing is recently ordered to pay a $26 million fine for being a giant scam.  It`s now reportedly the subject of an active FBI investigation as a potential criminal fraud scheme.  Today, Matthew Whitaker confirmed for the first time that he is recused from any ongoing DOJ investigation into that company that he was affiliated with.  He said, quote: I am recused from the investigation into that company. 

So we learned that today as well.  If hypothetically they end up arresting everybody associated with that firm, he as attorney general will not be called upon to sign off on his own arrest, we learned today.  Good to know. 

It`s basically been kind of a Rock `em Sock `em robots news day Friday.  There`s been a lot of develops.  There`s been a lot of news breaking all day long.

Tonight, of course, though, one of the things we are watching most closely is the now exploding scandal in Virginia politics as the governor under fire for a week now insists unequivocally that he will not resign the governorship and as the lieutenant governor faces a second round of serious new allegations against him and increasing and actually as of tonight radically increasing calls that he must resign. 

We`re going to have a live report from Virginia as this story is developing quickly over the course of tonight. 

Stay with us.


MADDOW:  All right.  We just got this tape in tonight from Virginia.  This is from outside the public library in Arlington, Virginia.  This is Democratic lawmaker Patrick Hope, who is tonight calling for the lieutenant governor of the state of Virginia, a fellow Democrat, calling on him to step down or else. 


PATRICK HOPE, VIRGINIA DEMOCRATIC LAWMAKER:  The lieutenant governor is facing multiple credible allegations of sexual assault.  I believe these women.  He needs to resign immediately.  Should the lieutenant governor fail to do so, on Monday, I intend to introduce articles of impeachment on Lieutenant Governor Justin Fairfax. 


MADDOW:  This time last week, we were tracking the avalanche of calls for the Democratic governor of Virginia, Ralph Northam, to resign, in the wake of those racist pictures in his medical school yearbook.  There were initial expectations that Northam would have to resign over that scandal, but he thus far has not.

And tonight, Governor Northam has reiterated in no uncertain terms that he will not resign and he will not consider resigning.  And now, tonight, it is Lieutenant Governor Justin Fairfax, also a Democrat, also now buried under an avalanche of calls for his resignation because today, a second woman has come forward alleging that the lieutenant governor sexually assaulted her. 

The first allegation against the lieutenant governor was from a woman who says he sexually assaulted her in 2004 at the Democratic National Convention.  The second allegation today is from a woman who says he assaulted her while they were both undergraduates at Duke University, four years earlier, in the year 2000.

So, in terms of the landscape here, I mean, we spent the last week watching these calls for the Governor Ralph Northam to resign, right?  Widespread calls.  Both parties, Democrats in Virginia and across the country. 

But until now, the issue on the Lieutenant Governor Fairfax was much more scatter shot.  It was much more fluid with the lieutenant governor being completely firm in his public statements, denying any wrongdoing, not even entertaining the idea of resigning or there being anything wrong with his conduct whatsoever. 

Very few people in the Democratic Party were coming out and saying outright that Fairfax had a big enough problem here that he definitely needed to go.  That`s what it was before tonight, but that has now all changed tonight because tonight there is a joint statement from the Democrats in the Virginia House and the Democrats in the Virginia Senate calling for Lieutenant Governor Fairfax to go.  It is short and sharp and it lands like a punch in the gut. 

Quote: Due to the serious nature of these allegations, we believe Lieutenant Governor Fairfax can no longer fulfill his duties to the commonwealth.  He needs to address this as a private citizen.  The time has come for him to step down.  Full stop. 

That is a big change in this story.  With that joint statement from every Democrat in the House and Senate, from every Democrat in the Virginia legislature, that is a change.  Add a growing list of Democratic U.S. senators and the former governor of Virginia, Democratic governor of Virginia, Terry McAuliffe, a member of Justin Fairfax`s own team who helped him just get elected lieutenant governor. 

We do not know what is going to happen in terms of the evolution of these allegations against Fairfax who, again, continues to deny everything.  But the political landscape has changed a lot when it comes to his ability to stay in office and we`re going to have a live report coming up from Virginia next.  Stay with us.


MADDOW:  Amid widespread calls for the governor of Virginia to resign over racist photos in his medical school yearbook and the lieutenant governor now today facing a second allegation of sexual assault, the first one from a woman who says he assaulted her in 2004.  Today`s allegation from a woman who says he assaulted her in 2000 when they were both undergraduates at college.  Amid all of this turmoil in Virginia about the Democratic leadership of that state, we`re still watching the reactions and the responses roll in tonight. 

Lieutenant governor himself has denied the latest allegations, like he denied the first allegations.  He`s calling this now a vicious and coordinated smear campaign orchestrated against him. 

Just in the last few minutes, Virginia Democratic Congressman Bobby Scott has called for an investigation and says if the allegations are true the lieutenant governor should step down immediately. 

And this is just in, actually, the Virginia Legislative Black Caucus just a few minutes ago says this, quote: In light of the most recent sexual assault allegations against Lieutenant Governor Justin Fairfax, the Virginia Legislative Black Caucus believes it`s best for Lieutenant Governor Fairfax to step down from his position.  We remain steadfast in our conviction that every allegation of sexual assault or misconduct be treated with the utmost seriousness, while we believe anyone accused of such a grievous and harmful act must receive the due process prescribed by the Constitution, we cannot see it in the best interest of the commonwealth of Virginia for the lieutenant governor to remain in his role. 

As I mentioned, this is a fast-developing story tonight. 

Joining us now is Charniele Herring.  She`s a member of the Virginia House of Delegates and the Virginia House Democratic Caucus chair. 

Delegate Herring, thank you very much for joining us.  I know this is a difficult time in your state and this story is moving very quickly. 

DEL. CHANIELE HERRING (D), VIRGINIA DEMOCRATIC CAUCUS CHAIR:  Thank you for having me, Rachel.  And it is a difficult time. 

MADDOW:  Let me just get your top line reaction.  Let`s not talk about Governor Northam for a second.  Let`s talk about Lieutenant Governor Fairfax today and the evolution of these allegations against him. 

What`s your overall assessment about these allegations and how these handled these allegations thus far? 

HERRING:  Right.  My assessment is, you know, victims need to be heard.  They`re very serious allegations. 

And while the lieutenant governor has due process, the question is whether he can serve while that process is happening.  And I think that remaining in office is not good.  It`s not good for the commonwealth and he needs to step down, step aside because it`s just bringing harm to the commonwealth and we -- we have people who are still governing in our chambers and we`re almost finished with session and we`re working hard in that House chamber and this serves as a distraction and we need to get back to the task at hand. 

MADDOW:  You are the Democratic caucus chair in the House of Delegates. 


MADDOW:  I wonder if you can give us any sort of window into the decision- making process into what`s been happen among you and your colleagues to come up with this decision today to put out this blunt short statement from all Democrats in the House and the Senate in the legislature calling for him to leave his post. 

What was that process like?  What were those discussions like? 

HERRING:  Well, I can just tell you this, is that we take the allegations seriously and we want to also be consistent.  Many of us have called out Kavanaugh, right, when there were allegations, and, right, because we believe in preserving the integrity of our government institutions, our courts, or legislatures and that`s most important. 

I also go back to the task at hand, where we`ve just passed a budget.  We`re working on a tax issue in the legislature.  And so we need to focus on the task and work ahead of us and looking forward for Virginians.  There is so much to do. 

MADDOW:  These -- this story about Lieutenant Governor Fairfax is obviously not happening in a vacuum.  The controversy over the racist photos in Ralph Northam`s medical school yearbook and the way that he`s handled the revelation of those photos and talked about it since, of course, has not softened the widespread calls for his resignation.  He tonight is saying that he absolutely will not resign, that he`s not entertaining that as a possibility. 

How do you weigh these two things against each other?  Do you think these should be handled as separate matters that should be considered independently without regard to one another?  Are these one story to you in terms of how to do what`s right for the state of Virginia? 

HERRING:  Well, they`re certainly separate issues, separate matters.  One is race and one is sexual assault.  Each man has their own decision to make. 

But I ask this of them, and I have -- I`m glad I have this opportunity.  It is not what is best for you, but it`s what`s best for our commonwealth. 

There are children who go to school who still need to be fed.  They`re facing food shaming in the cafeterias.  They don`t have food at lunch. 

There are Virginians who are working hard every day, and we deserve to give them our best.  So it is not what they want, but what is best for our commonwealth. 

MADDOW:  Charniele Herring, delegate in the House of Delegates in Virginia, the chair of the House Democratic Caucus.  Amid these fast-moving developments tonight, thank you for helping us understand what`s going on in your state.  Much appreciated.

HERRING:  Thank you so much for having me. 

MADDOW:  Again, we are following the breaking news tonight that the Black Legislative Caucus in Virginia and the Democrats in the state legislature in both the House and the Senate are now calling on the lieutenant governor of Virginia to resign as he faces a second serious sexual assault allegation.  He is denying any wrongdoing in regard to either of these allegations but it does feel like the walls are closing in on him in terms of his political support in the state. 

As of right now, both he and Governor Ralph Northam are resisting and rejecting all calls for their resignation. 

Much more ahead tonight.  Very busy news night.  Stay with us.


MADDOW:  The execution was scheduled yesterday for 6:00 p.m. at Home and Correction Facility in Atmore, Alabama.  Dominique Ray had one request.  He asked to have his imam by his side in the execution chamber. 

Instead of the prison`s Christian chaplain, he wanted his imam there to make sure he honored his Muslim faith as he died, to make sure the very last words he uttered on earth were a testimony to his faith.  The prison warden said no to that. 

Alabama`s prison policy is that, yes, you can have a member of the clergy there with you when you die, when prison staff kill you, but by member of the clergy they only mean a Christian chaplain.  That`s it.  Because the only member of the clergy that allow in the execution chamber is the Christian chaplain who is employed by the prison, and they argue that this is for security reasons. 

When Dominique Ray found out this would be the circumstances of his death, his lawyer filed a legal challenge.  Ray and his lawyer argued that by not allowing the imam in the execution chamber and only allowing a Christian chaplain, Alabama`s execution procedure treated inmates differently according to their faith.  It favored Christian inmates by allowing them to have their faith leader with them but nobody else of any other faith. 

The federal appeals court agreed, at least they staid that execution so they could consider it.  That happened on Wednesday of this week, two days ago.  But lawyers for the state of Alabama filed an emergency petition asking the U.S. Supreme Court to step in, specifically to let the execution move forward, and last night in a 5-4 decision they did that.  The justices on the U.S. Supreme Court voted to let that execution go forward as planned. 

Justice Elena Kagan wrote a blistering very short three-page dissent.  Quoting from that, she says, quote, this court -- excuse me.  Quote: Today, this court reverses that decision and permits Mr. Ray`s execution to go forward.  Given the gravity of the issue here, I think that decision that profoundly wrong. 

Quote: The clearest command of the Establishment Clause, this court has held, is that one religious denomination cannot be officially preferred over another.  But the state`s policy does just that.  Under that policy, a Christian prisoner may have a minister of his own faith accompany him to the execution chamber to say his last rights, but if an inmate practices a different religion, whether Islam, Judaism or any other, he may not die with a minister of his own faith by his side.  That treatment goes against the Establishment Clause`s core principle of denominational neutrality. 

That dissent from Elena Kagan in the Supreme Court last night.  Dominique Ray was executed by lethal injection in Alabama at 10:12 p.m. without his imam in the execution chamber.  Could have had a chaplain, though, because only Christians get their faith leader there. 

And last night, the Supreme Court blessed that.  It was Alabama`s first execution of 2019. 

Joining us now is Dahlia Lithwick.  She`s senior editor and legal correspondent at 

Dahlia, thank you for being here. 


MADDOW:  I`m not a lawyer.  I don`t know anything about the law.  All I do is talk about it on the news. 

This strikes me as third grade level outrageous.  Like a third grader learning about the Constitution and the Establishment Clause and there not being an official religion in the United States and there being no discrimination allowed on the basis of faith, like this is what you would invent as a case to show how that`s supposed to work in the Constitution. 

LITHWICK:  I have to say nothing shocks me, really.  This shocked me.  This was stomach-churning because this is the Supreme Court that has held itself out.  When you think about Hobby Lobby, you think of the Little Sisters.  You think about the cake baker last year. 

MADDOW:  Religious freedom. 

LITHWICK:  Religious freedom.  And the most important thing, the core sole value that we care about is that nobody`s religious freedom gets quashed by the state, no matter what the other third-party interests are. 

Here the only third-party interest is that the prison wants to kill him really fast.  That`s it.  That`s the value here, right?  Not women`s contraceptive health.  Not gay couples in Colorado being allowed to marry.  No, the prison wants to go fast.  That`s the value, the countervailing value, and that`s good enough. 

And this is not frosting a cake, Rachel.  This is a person`s exit from life wanting the pastor of his choice to be with him. 

MADDOW:  And having been advised by the prison, in terms of my reading about this case, having been advised that he would be allowed to have a member of the clergy with him at the time of his execution.  Not learning until just days before they were priming the chamber to kill him that in his case, that would not include a member of his own faith.  That would include a member of a completely different faith and that was his only choice.  He didn`t know that until the end. 

LITHWICK:  He couldn`t have known that.  In fact, the policy he was afforded -- he said, can I see the written policy?  They wouldn`t show him the written policy.  To the extent he knew anything, he knew what you just said is I get someone of my own faith.

He did exactly what he had to do at the end of January, which is file the appropriate motions, and the court just said, you know what?  Sorry, too late.  Should have done this in November. 

MADDOW:  That it was too late even though there was no way he could have known about it before he filed this. 

LITHWICK:  They felt he should have known about it.  It`s staggering.

MADDOW:  It`s staggering.

I want to ask you about another major ruling in the Supreme Court, 5-4 decision.  That was a bit of a surprise especially in terms of the way the 5-4 split fell on abortion rights and specifically a law in Louisiana that was designed to make it very hard for any abortion provider to do business in the state. 

What do you make of this ruling? 

LITHWICK:  Well, it was another stay, right, so we don`t have any decision on the merits, we have the same thing.  We have an emergency stay application that come up to the court and the court gives us a one-pager.  So, again, we don`t know anything on the merits. 

What we know is in 2014, Louisiana passes this admitting privileges law.  It`s identical -- Louisiana stipulates it`s identical to the one struck down in whole women`s health. 

MADDOW:  The Texas law that the Supreme Court said was too much of an infringement on property behind Roe v. Wade. 

LITHWICK:  Doctors need admitting privileges at a hospital 30 miles away.  This was the thing in 2016, the Supreme Court unequivocally said this helps women not at all and it adds a tremendous burden and so go away. 

And yet, Louisiana and the district judge in this Louisiana case 112-page findings of facts establishing the same thing.  This doesn`t help women`s health.  These doctors have tried desperately to get privileges.  They can`t get them. 

Clinics are going to close.  Probably two clinics are going to close.  There will be one doctor left -- two doctors left, one clinic in the whole state of Louisiana. 

He says I`m going to enjoin this thing.  It can`t go into effect.  Fifth Circuit Court of Appeals, the appeals court that covers Texas and Louisiana, this September said, no, we`re good with it.  He was wrong.  This is really super different from Texas.  And he`s sort of wrong on the facts and actually those doctors didn`t try hard enough to get admitting privileges, so we`re on. 

And the Supreme Court I think surprised a lot of people.  John Roberts voting with the liberals to effectuate the stay.  They didn`t decide to take the case.  They`ll probably have to take the case.

But at least the law is stayed and would have gone into effect this week. 

MADDOW:  Which may not say anything about John Roberts` views on Roe, may not say anything about John Roberts` views overall on the merits, but it did show they could cobble together a surprising 5-4 majority to at least slow it. 

LITHWICK:  It`s John Roberts saying don`t overrule me from beneath me.  If it`s time to get rid of Roe, we`ll do it at this court, not the Fifth Circuit. 

MADDOW:  Dahlia Lithwick, senior editor and legal correspondent at, great to see you my friend. 

LITHWICK:  You, too. 

MADDOW:  Thanks. 

We`ll be right back.  Stay with us. 


MADDOW:  I know she`s already got an exploratory committee going, but tomorrow, Senator Elizabeth Warren is expected to officially announce her candidacy for president in Lawrence, Massachusetts. 

The "Boston Globe" reporting tonight that Congressman Joe Kennedy will introduce and endorse Senator Warren at the event, and that is interesting in part because of how close Joe Kennedy is perceived to be to Beto O`Rourke, who himself is still deciding whether or not he`s running.  If Beto O`Rourke does run and Joe Kennedy has already endorsed Elizabeth Warren, well, then that is a thing. 

Senator Ed Markey and Congressman Lori Trahan will also be at that Warren event, rumored to be endorsing Senator Warren tomorrow. 

But then the following day on Sunday, on Boom Island in Minnesota, Senator Amy Klobuchar will be making an announcement of her own.  She`s not yet saying she`s going to announce a run, but it does sure feel like that`s what we`re going to hear on Sunday. 

The real feel temperature in Minneapolis on Sunday is expected to be a cozy 11 degrees.  So whatever the senator`s going to say then, she is urging supporters to bundle up and we should all probably buckle up. 

Stay with us. 


MADDOW:  Thanks for being with us on a fairly wild Friday news night tonight.  That`s going to do it for us for now, but we will see you again on Monday. 

Now, it`s time for "THE LAST WORD" where Ari Melber is sitting in for Lawrence tonight. 

Good evening, Ari. 

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