TRMS Special Report. TRANSCRIPT: 2/21/19, The Rachel Maddow Show.

Guests: Walter Dellinger

VANITA GUPTA, CHIEF EXECUTIVE OFFICER, LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS:  And I think there is no question that we will see in the upcoming election, these issues play themselves out in real -- on the national stage as they should. 

CHRIS HAYES, MSNBC HOST:  Vanita Gupta and Jamil Smith, thank you both for your time.

That is ALL IN for this evening. 

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

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

HAYES:  You bet.

MADDOW:  Thanks to you at home for staying with us for the next hour. 

It`s been a tremendously busy day.  A federal judge today has ruled that Labor Secretary Alex Acosta broke the law when he was a U.S. attorney and gave a secret non-prosecution agreement to a billionaire serial child sex offender.  Alex Acosta is still serving as U.S. labor secretary as of tonight.  So far, the White House has had no response to that federal judge`s ruling today. 

Also today, in that botched election in North Carolina that has resulted in there being no member of Congress seated from that district, we now know how we are going to get somebody seated from that district.  The state elections board today unanimously ordered that a new election must be run there from scratch. 

Also today, lawyers for the president`s longtime adviser Roger Stone put Mr. Stone on the stand to explain why he put a picture online this week targeting the federal judge who was overseeing his case.  That judge did not jail Roger Stone today, which she might have done.  She did issue a strict gag order and she warned that if Stone breaks the gag order by speaking publicly about his case in any way, he will go to jail ahead of his trial.  The judge told him today specifically, quote, I will find it necessary to adjust your environment. 

So, it`s been a very busy, busy news day.  And, of course, the weather system looming over everybody`s environment right now is these reports from multiple news agencies that the Mueller investigation may soon be producing its report.  Now, as always, the most important thing there is that nobody really knows other than Mueller and his team, and they don`t leak and they don`t make public comments so nobody really knows.  But the expectation that Robert Mueller is about to produce his final report, those expectations are more heightened now than they have ever been.

And it is in that context tonight that we are bringing you this RACHEL MADDOW SHOW special report.  This is something we`ve been working on for awhile now and it`s based on documents we have obtained, most of which have previously never been seen by the public. 

So, let me just give you a little -- a little table of contents in terms of how this is going to go tonight.  First of all, there`s a couple of sets of documents that I`m going to show you that are things that have just never before seen the light of day, or certainly never widely seen the light of day.  One of them adds a previously unknown element to our understanding of a recent president.  Another set of these documents adds a fairly explosive new set of facts to what we know about an important White House scandal. 

So, couple of sets of documents.  One about a recent president.  One about a relatively recent White House scandal. 

But where we`re going to land here is on some documents and revelations, including one very important interview, which have direct implications for some of the thorniest questions we are facing right now when it comes to this presidency and the potential resolution of the existential scandal that has surrounded the Trump presidency and the Trump election from the very, very beginning.  So, that`s your table of contents. 

Basically get comfortable.  Deep breath.  Here comes some stuff we have really never heard about before. 

All right.  Where we are going to start tonight is October 1988, just a few weeks before the 1988 presidential election.  The 1988 presidential election, of course, was between Democratic nominee Michael Dukakis, who was the sitting governor of Massachusetts, and the Republican nominee, who was the sitting vice president of the United States, George Herbert Walker Bush. 

So it was just a few weeks before that election, that October when those two nominees squared off in a presidential debate, a debate that would become the stuff of political legend.  It was the final debate that year.  It was held in Los Angeles on the campus of UCLA.  And the big moment that everybody still remembers from that debate all these years later is actually a moment that came right out of the gate, came right at the top of the debate.  The Democratic nominee Michael Dukakis was asked right at the start of the debate what he would do if his wife Kitty were raped and murdered. 

Sure, Michael Dukakis had long been opposed to the death penalty, but what if his wife Kitty was raped and murdered?  Would he still be against the death penalty then? 

Michael Dukakis got that question.  It was the first question of the whole debate and I don`t know exactly how you would give a right answer to that question, but this at the time was seen as not the right answer. 

(BEGIN VIDEO CLIP)

DEBATE MODERATOR:  Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer? 

MICHAEL DUKAKIS (D), FORMER PRESIDENTIAL CANDIDATE:  No, I don`t, Bernard.  And I think you know that I oppose death penalty during all of my life.  I don`t see any evidence it`s a deterrent and I think there are better and more effective ways to deal with violent crime. 

(END VIDEO CLIP)

MADDOW:  Again, hard to know what the right way is to answer that political question, but that dispassionate, calm answer from Governor Dukakis, that was seen at the time as a sort of political disaster.  That was seen as, oh, my God, he just blew the whole election kind of moment. 

And in fact, the Dukakis campaign did not come back after that last debate.  Dukakis had had a huge lead over George H.W. Bush that summer of 1988.  I mean, Vice President Bush was vice president, but he was essentially trying to run for a third term of the Ronald Reagan presidency, and it`s always hard to ask voters to give the same party three presidential terms in a row. 

Poppy Bush was also a little hamstrung by his choice of a running mate.  He picked a man named Dan Quayle, who`s a fairly well-respected handsome young Republican senator to be his vice presidential running mate.  But even though Dan Quayle was liked enough as a senator, as a potential vice president, he was widely seen as not ready for prime time, seen as not up to the task of being a heartbeat away from the presidency. 

And in the summer of 1988 when George H.W. Bush was really on the ropes, when it looked like he was not going to win, way down in the polls, definitely look like Dukakis was going to beat him, summer of `88, he secretly reached out to an old friend for help in trying to figure out how to come back and win that election. 

That debate in Los Angeles was held on October 13th, 1988.  Two days before the debate on October 11th, Vice President George H.W. Bush wrote this note.  Check it out. 

Ted, as I head for the coast, I want you to know I got your last two letters.  I think the Quayle attacks have not hurt long run.  Now off to the last debate.  Best wishes, G. 

Now, the Ted that Vice President G was writing to there was the honorable Ted Agnew.  Spiro Agnew he was writing to.  Spiro Agnew, the disgraced convicted former vice president of the United States who had been absent from public life at that point for 15 years since Agnew had had to plead to tax evasion charges and resign the vice presidency in 1973 in a way that only quite narrowly avoided him going to prison. 

Two days before that last key presidential debate in Los Angeles in 1988, may be the most important moment of George Bush`s political life up until that point and Bush was secretly consulting a convicted felon for political advice? 

Since we released our little podcast series "Bag Man" about the amazing and mostly forgotten scandal that led to the removal of Vice President Spiro Agnew from office, one of the things that`s happened since we launched that podcast series and got such a great response to it is that we have been able to get ahold of some new documents related to Spiro Agnew, documents that we didn`t have before and that haven`t been publicly seen before.  And they turn out to be document documents that shed some light on details of modern American history that really haven`t been known before.  Documents like these previously unknown personal correspondences between George H.W. Bush and Spiro Agnew during the summer and fall of the 1988 presidential campaign. 

Agnew was meeting with at least one adviser to then Vice President Bush.  Agnew was offering hints on handling the Dan Quayle attacks.  Again, Spiro Agnew at this point was a convicted felon.  He was the first vice president to resign his office in disgrace.  Everybody else in life would run a mile to keep their distance from Spiro Agnew.

But look at this one.  Here was George H.W. Bush, sitting vice president and presidential candidate during that presidential campaign writing to convicted felon Spiro Agnew.  Quote, I`d love to have a paper from you with any suggestions you`d care to make.  I`d welcome such a paper.  I really would. 

This was him asking for written advice from Agnew on how Bush could best plan his campaign to beat Dukakis.  And it`s not like George Bush was naive or ignorant about Spiro Agnew`s past, as we found in "Bag Man," Poppy Bush, who`s the Republican Party chairman at the time of the Agnew scandal, he was brought into very much what looks like a criminal obstruction of justice scream orchestrated by the Nixon White House to try to pressure the federal prosecutors working on the Agnew case that they should work on the case. 

I mean, George H.W. Bush was personally in on that.  He was part of that scheme.  He knew exactly what had gone down with Agnew. 

But thanks to these documents that we have now obtained, we can now see that Bush kept up this effusive secret back-channel communication with Agnew for years after that, including right through his own 1988 presidential campaign.  So that Bush/Agnew correspondence I think is basically a new piece of presidential and presidential campaign history, which is worth knowing about Poppy Bush and the 1988 campaign.  Worth knowing about Agnew, especially in light of Agnew`s disgrace and the way he was removed from office.

But I tell you that in part to lay the groundwork for some of the other stuff that we have obtained.  In the course of the "Bag Man" research and thereafter, we have also obtained some other materials that don`t just give us an interesting new footnote in presidential history.  These are materials that I think are simply just pretty explosive.  So let me just show you what we got. 

What you are looking at here is a telegram, a telex that was sent in 1980.  And as you can see at the bottom of the telex, it`s a telegram that was sent by Spiro T. Agnew, former vice president of the United States.  In terms to the timeline here, Agnew resigned the vice presidency in 1973.  So, this was a telegram he was sending seven years later in 1980 when he was a private citizen. 

And he sent this massage to, as you can see, His Excellency Ahmad Abdul Wahab, chief of royal protocol, Kingdom of Saudi Arabia. 

What Spiro Agnew was asking for in this telegram he wrote to the Saudi kingdom was something very specific.  He wanted an audience with the Saudi crown prince at the time.  Agnew wrote, quote: It would be deeply appreciated if your Excellency could arrange for me to have an audience with his royal highness, Prince Fahd, as soon as possible.  The matter to be discussed involves a personal emergency that is of critical importance to me. 

So this is former Vice President Spiro Agnew writing to the chief of protocol of the Saudi royal family in 1980 saying I need to meet with the crown prince on something that is of critical importance, a personal emergency.  Agnew says in this telex, quote, in the past, his royal highness has assured me he would be available should I need to see him.  So this is a former vice president basically calling in a chit of some kind.  He once told me I could call on him if I ever needed help.  Well, now I need help. 

What Agnew gets back in response to this telegram is this.  To his Excellency Spiro Agnew, re your telex in which you have expressed your wish to have an audience with his highness, Prince Fahd, stop.  We can arrange for you to have an audience on August 15th.  Regards. 

So then we get Agnew`s response back to that.  Telex back, quote, I am very pleased to accept your kind offer to arrange an audience with his Royal Highness Prince Fahd on August 15th.  This is Agnew saying, OK, I`ll be there.  Quote: Please advise time and location when available. 

So, America`s relationship with Saudi Arabia is complicated even in the best of times, right?  I mean, think about what we`re in right now.  As we speak, the U.S.-Saudi relationship right now revolves around, among other things, a suspected elicit relationship between the Saudi royal family and the "National Enquirer," which is headed up by the president`s longtime friend David Pecker. 

Questions about whether the "National Enquirer" might have been acting as an agent of the Saudi government when that publication went on the warpath against Amazon`s CEO and "Washington Post" owner Jeff Bezos recently.  "The Post" has been critical of the Saudi government recently over the murder of "Washington Post" journalist Jamal Khashoggi inside a Saudi consulate.  Jeff Bezos has suggested that the Saudis may have retaliated against him for that coverage with an extortion and blackmail effort run out of the "National Enquirer."  All this happening while the Trump administration continues to resist blaming the Saudi government for the murder at all. 

Just this week it was announced that the Trump administration is also now being investigated by the oversight committee in Congress over a secret plan to transfer highly sensitive nuclear technology to Saudi Arabia, against the warnings of top national security officials and potentially against the law.  This nuclear thing was a plan that several people associated with the president appear to have had a significant personal financial stake in. 

So, the relationship between the U.S. and Saudi Arabia has been complicated for a long time.  It is still messy as all get you out -- what we now know is that the modern history of Saudi Arabia and presidencies in trouble might be even more complicated than we previously understood because what disgraced Vice President Spiro Agnew wanted from that desperate plea he was making to meet with the Saudi crown prince that summer of 1980, what this disgraced former U.S. vice president was approaching Saudi Arabia about and asking for is sort of breathtaking, but we`re going to show you. 

Spiro Agnew was writing to the Saudi royal family to solicit their help, their financial support for him to lead a scorched-earth propaganda campaign in the United States to expose the Jews, to wage a political war on Jews in America.  No, really.  The reason that Spiro Agnew sent that telegram asking for a meeting with the Saudi crown prince is made clear in this draft of a letter that Agnew wrote to the crown prince just a few weeks later.  It`s dated August 25th, 1980. 

Your Highness, at the request of Sheik Ahmed, the protocol chief, I am writing this letter to explain the principal reasons for my urgent request to see you.  Your highness is already familiar with the unremitting Zionist efforts to destroy me.  During the time I was under attack by Attorney General Elliot Richardson in 1973, the reason for their need to drive me out was stated by Richardson several times.  He said I could not be trusted to act properly in the Middle East. 

Therefore I was framed and driven from office.  The reason was that the Zionists in the United States knew that I would never agree to the continuance and unfair disastrous favoring of Israel and they had to get me out of there so I would not succeed Nixon. 

Since 1974, the Zionists have orchestrated a well organized attack on me, the idea being to use lawsuits to bleed me of my resources, to continue my effort to inform the American people of their control of the media and other influential sectors of American society.  I`m sure that one of the lawsuits, Agnew was then dealing with, was encouraged by the Bnai Brith.

In conjunction with the publication of my book, I`ve taken every opportunity to speak out against the catastrophic U.S. policies regarding Israel.  This has spurred by Zionist enemies on to greater efforts.  I need desperately your financial support so that I can continue to fight. 

Former vice president then asks the Saudi crown prince to put $2 million in a secret Swiss bank account for him from which Agnew would live off the interest and it would all be untraceable to Saudi Arabia. 

Quote: If your highness is willing to help me but this method is not suitable, I would be grateful for any idea that would give me about $200,000 a year for the next three years.  I do so want to continue my fight against the Zionist enemies who are destroying my once great nation. 

And here`s my favorite part.  This is the way that Agnew signs off this letter to the Saudi crown prince. 

He says, quote: My congratulations to your highness on the clear and courageous call to jihad.  The Zionists have me in a most difficult position and I need help urgently without delay.  With great respect and warm personal regards, I am.  Respectfully, Spiro T. Agnew. 

The jihad congratulations reference appears to be a reference to the Saudi crown prince just days earlier had publicly called for a holy war against Israel.  So, congratulations on that from the American vice president. 

I mean, just to be clear, this is a former American vice president writing to a foreign government asking for their help in fighting Jews in America, because the Jews framed him and it`s the Jews who are destroying America and he`ll lead the fight against the Jews for the low, low price of $200,000 a year in secret funding from the Saudi royal family. 

And on the one hand, OK, this what became of old Spiro Agnew after he was forced out of office.  He became mired in legal battles and lawsuits and he was constantly looking to drum up money and support in all kinds of ways, including this.  On the other hand, this is the former American vice president approaching the Saudi government behind the scenes and saying help me wage war on the Jews in America, which is exactly as nuts as it sounds. 

But it gets worse.  Because you should also know that the correspondence that we have obtained here suggests that the Saudi government appears to have done it.  Again, Spiro Agnew was asking for a $2 million loan to be parked in a bank somewhere and then he was going to live off the interest or maybe there was some other way he could take in about 200 grand a year. 

Well, about a month after he sent that urgent request for financial support to the Saudi crown prince, give me money to fight the Jews -- look, about a month later, look at this, Agnew drafted another letter thanking the Saudi crown prince for apparently coming through for him with the funds.  Quote: It is difficult for me to find the right words to adequately express my gratitude for the prompt response from your highness to my communication.  I`m now in a position to meet my obligations for about six months under the framework set forth in my letter to you. 

And to make clear what he`s talking about there is money, Agnew says he`s also going to try to drum up some additional business in Saudi Arabia, which will, quote, give me the resources to continue the battle again the Zionist community here in the United States.  Agnew then appears to have received a letter back from the Saudi crown prince wishing him great success in his efforts. 

So, OK, less than ten years out of office, a former American vice president orchestrated a secret financial deal with Saudi Arabia to fight Jews in this country.  That seems like something that maybe should matter even today in what`s going on between our country and theirs, right?  I mean, is it OK that the Saudi royal government -- royal family, government, funded Agnew to do that?  Back in the day?

I mean, it tells you something about Agnew but it also tells you something about the royal family as well, which is the same family that`s in charge now.  We came into possession of these documents after they were uncovered by a historical document collector named Greg Schneider.  He then shared them with us after we obtained the documents from Mr. Schneider and did our own due diligence authenticating them, we then consulted the great Michael Beschloss, NBC`s presidential historian, who told us he thinks that these letters, these documents have never been known about publicly before. 

So like I said, the reporting that we did for "Bag Man" has yielded some unexpected stuff, but as promised, there is something else we turned up in reporting out this story that has quite direct implications for today, maybe even for this week, and specifically for the now quite pressing question of how exactly the investigation into the current president might end, specifically the question of whether the president could be indicted.  And that is still ahead.  Stay with us.

(COMMERCIAL BREAK)

MADDOW:  Rudy Giuliani was feeling on top of the world.  It was May of last year, a little less than a year ago, Rudy Giuliani had just gotten some news that for him, one of the lawyers for President Donald Trump, for him, it was like winning the Super Bowl.  And the way you know he felt like he had just won the Super Bowl was because he went around and talked to every single news outlet he could find about it and he was uncharacteristically on message with every one of them. 

Here is now NBC News reported it that day.  Mueller doesn`t plan to indict Trump because of DOJ rules, Giuliani says. 

There was the CNN headline, Giuliani: Mueller`s team told Trump lawyers they can`t indict a president.  This was "The New York Times": Mueller won`t indict Trump if he finds wrong doing, Giuliani says." 

Aha, Trump cannot be indicted.  Game, set and match, right?  Giuliani just went out to scream it from the rooftops. 

This is what he told two great reporters, Hallie Jackson and Kristen Welker here at NBC News that day.  Quote: the special counsel`s office acknowledges the fact that they cannot indict us, Giuliani told NBC News on Wednesday.  They know they don`t have that power.  So their function is to write a report.  We would like it to be the fairest report possible, but even if it is isn`t, we`re prepared to rebut it in great detail, so we`d like them to do it. 

He said, quote, it`s as clear as can be that they don`t have the right to indict under Justice Department rules, and I know they`re not going to indict. 

Rudy Giuliani has had a lot of not good days being president Donald Trump`s lawyer.  He has careened from one damaging new development to another, as we have all watched like this, but that day in may of last year, that was the best media day every for Rudy Giuliani.  He said that special counsel Robert Mueller`s office told him, they told President Trump`s legal team that under Justice Department rules, they know they cannot indict President Trump, even if they find that Trump has definitely committed serious crimes. 

And the reference that Giuliani kept making in all of those interviews that day, that phrase "under Justice Department rules," that is a reference in fact to the standing internal Justice Department policy that says a sitting president of the United States can`t be indicted.  It`s not a law that says a president can`t be indicted.  It`s not written into Justice Department regulation.  It`s just a department policy.  And it is a policy that derives from a very specific place. 

And if Mr. Giuliani was on cloud nine that day back in May when he felt like that revelation about Justice Department policy meant that his client is in the free and clear no matter what he did, I hope for the sake of Mr. Giuliani`s happiness level that he is maybe not watching right now because in reporting out the story for our podcast series "Bag Man" about Spiro Agnew, we hit upon something that I think is now important and definitely provocative in light of the news that all of these different news outlets are now reporting that we may be coming to the close of the Mueller investigation and, in fact, to some sort of report about Mueller`s findings. 

So, this is the crux of our special report tonight.  We`re about to break news that has not been reported elsewhere.  Do stay with us.

(COMMERCIAL BREAK)

MADDOW:  This is Robert Dixon.  Robert Dixon in the fall of 1973 was the head of the Justice Department`s Office of Legal Counsel.  The OLC. 

The OLC is the office inside the Justice Department that essentially advises the attorney general on the legality of complex legal matters.  The OLC drafts legal opinions.  They research the constitutionality of certain issues that arise.  They give the attorney general official OLC guidance on legal stuff. 

And in the fall of 1973 when Robert Dixon was the head of the OLC, there was one specific important matter that dropped on his desk like a load of bricks.  And it had to do with Spiro T. Agnew, who was then the vice president of the United States and also a crook. 

A team of young federal prosecutors in Baltimore had discovered earlier that year in the spring of 1973 that Vice President Agnew had been conducting a bribery and extortion scheme for the better part of a decade, demanding cash kickbacks in exchange for government contracts that he controlled.  Agnew started running this criminal enterprise when he was the top elected official in Baltimore County, Maryland.  He continued it when he became governor of Maryland. 

And in 1973, right after Agnew had just been re-elected to his second term as vice president, these federal prosecutors had discovered that he was running that same criminal scheme from inside the White House as vice president.  He was literally taking envelopes of cash bribes inside his vice presidential office. 

And because of what those prosecutors had turned up, that fall of 1973, Attorney General Elliot Richardson had a problem because he knew what Spiro Agnew had been up to.  He knew that if Richard Nixon were to go down in Watergate, an active criminal was next in line to replace him.  But it was not entirely clear to the attorney general if he, if the Justice Department could actually bring charges against the vice president.  It wasn`t clear if it was legal to indict a sitting vice president of the United States. 

Spiro Agnew`s defense lawyers, in fact, were loudly proclaiming that you could not.  They were saying to anybody who would listen that Agnew was immune from prosecution, simply because he was vice president. 

And that`s where Robert Dixon came in because that fall as head of the OLC, it was Dixon`s job to figure out what exactly the Justice Department`s policy on this, what the Justice Department`s position on this question should be.  Can you indict a sitting vice president? 

I mean, this wasn`t a theoretical concern at the time.  There was a 40- count felony indictment against the vice president simmering on the proverbial stove in a U.S. attorney`s office in Maryland, ready to be served up at any time.  Was he in fact immune from such federal charges? 

Could that indictment be filed against him?  I mean, legally, they needed to know.  Also, practically. 

With Nixon teetering because of the Watergate, with the threat that the guy who would succeed Nixon was a known and active criminal who had been taking bribes inside the White House, the Attorney General Elliot Richardson needed to know if he could use at least the threat of being able to indict Agnew in order to force Agnew out of office, thereby protecting the presidential line of succession. 

Now, Robert Dixon had been a law professor before he was head of the OLC.  He was a respected legal voice, especially on voting rights and election law.  But now he was being asked to figure out if it was constitutional to indict a sitting vice president.  What Robert Dixon ultimately concluded back in the fall of 1973 just ahead of Agnew resigning his office, in the midst of that crisis around that criminal vice president, Dixon`s answer when he was asked that question about Agnew for decades now, it has been used to support the position that a president can`t be indicted. 

But what Robert Dixon went through that fall in trying to formulate that opinion, it turns out to be kind of stunning.  One of the people who we interviewed for "Bag Man" was a former Justice Department official at the time named J.T. Smith. 

J.T. Smith had served at the CIA.  He served at the Defense Department.  In that fall of 1973, he was serving in the Justice Department.  He was one of the closest advisers to the Attorney General Elliott Richardson.  He was Richardson`s executive assistance.

And J.T. Smith was there, was there when Richardson asked the head of the OLC, Robert Dixon, to come up with an official Justice Department answer to this suddenly very pressing question about whether a sitting vice president could be indicted.  And what J.T. Smith told us in an interview for "Bag Man" is that Robert Dixon, that pressure-packed fall of 1973, Robert Dixon really wasn`t sure what the right answer was to that question.  Listen. 

(BEGIN AUDIO CLIP)

J.T. SMITH:  He was asked by the attorney general -- as one should do -- to write an objective legal opinion on the amenability of the vice president through criminal process. 

And his office dug through 200 years of constitutional deliberations and opinions. 

I think they ended up being in sort of a head-scratching place where the opinion could come out either pro or con criminal process for the vice president.  And at that stage, one evening, I took a phone call from the late Robert Dixon who said, do you have any idea how the attorney general wants this to turn out? 

(END AUDIO CLIP)

MADDOW:  Do you have any idea how the A.G. wants this to turn out? 

And honestly, who could blame Robert Dixon?  It`s not like you can just pull out the Constitution and find an answer to the question of whether the vice president can be indicted.  I mean, nobody had thoroughly grappled with this question before.  What J.T. Smith says he told Robert Dixon on the phone that night is that Attorney General Elliott Richardson very much hoped that opinion would come out in favor of the position that you could indict a sitting vice president.  Of course, we know that Richardson was looking for anything he could use to get Agnew out of office and out of the line of succession. 

Robert Dixon`s opinion ultimately did conclude, as Richardson wanted, that a vice president can be indicted.  But listen to what J.T. Smith says here.  Listen to what else got folded into the opinion in order for Robert Dixon to get to that desired position. 

(BEGIN AUDIO CLIP)

SMITH:  He could have written it either "yes" or "no", and he wrote it, "yes," but in order to get to "yes," he had to draw a distinction between the vice president and the president.  So the opinion came down on the side that the president`s constitutional duties are so important that it is not acceptable for the president to be subject to criminal process while in office, but by distinction the vice president, whose duties are nowhere near as important, can be subject to criminal process.  And that`s one of the memos now cited for the proposition. 

But when it was written, it was a very close question and the professor in charge of the Office of Legal Counsel wasn`t clear how to answer it, but it got answered against the imperative of dealing with the Agnew heartbeat away problem. 

(END AUDIO CLIP)

MADDOW:  Got answered against the imperative dealing with the Agnew heartbeat away from the presidency problem. 

And that`s sort of critical here, right?  For then and for now.  I mean, what the Dixon memo said in 1973, what that memo said was you could indict a vice president but incidentally you couldn`t indict a president.  And the way that the history of it has been remembered since then is that that 1973 OLC memo was written specifically with the Richard Nixon Watergate problem in mind and it was a definitive look at whether a president can be indicted, and even in the context of Watergate they believed that Nixon -- really it was about Agnew and specifically trying to get to an outcome where the answer would be, yes, you can bring charges against Agnew. 

I mean, what J.T. Smith is saying here and, again, he was there when it was written, is that in the course of expressing the view that a vice president can be indicted, which was the imperative of the moment, Robert Dixon opined on the president`s amenability to indictment.  But that wasn`t the intent of the memo in the first place.  It just asserted that about the president in order to make the relevant case about the vice president, which is important about that history. 

It`s also important in terms of how that memo became woven into what we currently understand as how the Justice Department works, because to some extent the Justice Department position right now that a president can`t be indicted, it rests on the conclusions of that 1973 Office of Legal Counsel opinion by Robert Dixon.  I mean, that`s where it started.  That`s the foundation.

The Justice Department did take another look at the matter in 2000 during the Clinton administration.  But the roots of this position, which is the position that stands as DOJ policy today, it starts with this 1973 DOJ opinion.  We`ve spoken to J.T. Smith some more about this in recent weeks, and what he says about the drafting of that OLC opinion in 1973, as somebody who was there, it`s just striking given the role that that memo now plays in lending de facto immunity to the president from prosecution. 

Again, remember, he told us, quote, when prepared, its purpose was to allow indictment and removal of Agnew and not to serve as the last word of indictability of a president.  He also says that OLC opinion before concluding a sitting president can`t be indicted, it reviews some important historical material that actually could support an opposite conclusion. 

And when you read that 1973 opinion in full, what J.T. Smith is saying there is true.  I mean, in terms of the historical record, Dixon`s OLC opinion states right there in black and white that, quote, there is no expressed provision in the Constitution which confers such immunity upon the president.  And that`s noteworthy because the Constitution does expressly provide some limited forms of immunity for prosecution for other officials, including members of Congress.  There is nothing in the Constitution providing immunity of prosecution to the president. 

Dixon also notes in the opinion that when you go through the various writings of the Founders and the constitutional convention debates, quote, there are strong statements by others to the point that the convention did not wish to confer such privileges, meaning immunity, on the president.  Later on he says, quote, the historical evidence on the precise point is not conclusive.  And yet, he ultimately puts in at the end that even though you can`t really make heads or tails of what the Framers of the Constitution intended, quote, during the past century, the duties of the presidency had become so onerous that a president may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution. 

So, this is where it all comes from.  This was the original document.  The full reasoning from the OLC in this opinion about indicting the president is that there is nothing in the Constitution about it.  We don`t know what the Framers intended about it at all, but the job of being president has become so hard now that it would be really hard for a president to get his work done if he was prosecuted. 

I mean, that`s -- that`s the thickness of it that`s laid out in this 1973 OLC memo.  And, again, the issue was revisited in the year 2000, but this is in part the foundation for the view today, which we have all basically come to accept, that a sitting president is immune from indictment. 

Except maybe we haven`t all come to accept it.  I mean, looking back at the thinness of these foundations and the contemporaneous commentary of people who were there and saw how that stuff was written, it`s interesting to see now that common wisdom being challenged.  I mean, one of the things that has been fascinating to watch just over the last few weeks and months is high-ranking Democrats in Congress quietly but steadily starting to call to call on whether internal Justice Department policy, which is in part based on that 1973 memo, whether Justice Department policy really does definitively preclude an indictment against a sitting president. 

Democrats expressing doubt about that now include the chairman of the House Judiciary Committee, Jerry Nadler, and the chairman of the House Oversight Committee, Elijah Cummings, and the chairman of the Intelligence Committee, Adam Schiff.  It also includes the speaker of the House. 

(BEGIN VIDOE CLIP)

INTERVIEWER:  Do you believe the special counsel should honor and observe the Department of Justice guidance that states a sitting president cannot be indicted? 

REP. NANCY PELOSI (D-CA), SPEAKER OF THE HOUSE:  I do not think that that is conclusive.  No, I do not.  I think that is an open discussion in terms of the law. 

(END VIDEO CLIP)

MADDOW:  It`s an open discussion in terms of the law. 

Democrats have been telegraphing for a few months now that they believe a sitting president can be indicted by the Justice Department, despite whatever you might have heard about what current internal Justice Department policy is on this matter. 

Earlier this week, there was a report at politico.com that, quote, legal circles are buzzing over whether SDNY might buck Justice Department guidance and seek to indict a sitting president.  In other words, they`re talking about the prospect that federal prosecutors in the Southern District of New York specifically, they might not necessarily feel beholden to that Justice Department policy about a president being off limits from indictment. 

And now, we have someone who was there when the roots of that Justice Department policy was first crafted saying in pretty blunt term that the opinion formed back then was never meant to serve as the last word on the indictability of a president.  And just to put a fine point on it, J.T. Smith told us, quote, it would be timely and appropriate for the Justice Department and Robert Mueller to reconsider the shaky policy regarding indictability of a sitting president first formulated 45 years ago in this OLC opinion in 1973.  J.T. Smith told us, quote, the durability of this opinion is curious. 

We all believe that the president can`t be indicted because that`s Justice Department policy that says you can`t.  That Justice Department policy, according to people there at the outset of what made that policy, say that the durability of that idea is curious and this is shaky policy.  It is shaky policy that ought to be reconsidered by the Justice Department, according to someone who was there at the creation.  That`s the policy that is supposedly preventing any potential indictment against a president, even today. 

So what do we do with that now?  Especially right now given what`s going on with this president.  We`ve got just the person you would want to ask about it next.

(COMMERCIAL BREAK)

MADDOW:  Joining us now is Walter Dellinger.  He served our country as head of the Office of Legal Counsel, as well as acting solicitor general under President Clinton. 

Professor Dellinger, thank you so much for being with us tonight. 

WALTER DELLINGER, FORMER ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL:  You are welcome. 

MADDOW:  So it`s accepted as common wisdom in the news business and I think in general right now that the president cannot face indictment because of Justice Department policy that precludes that.  As someone who used to run the office that creates that kind of policy at the Justice Department, how solid do you see that policy as being? 

DELLINGER:  You know, I don`t think it`s at all solid.  I don`t think you can make a categorical judgment of that kind.  And you`ve just, you know, added to the notion of how shaky that policy is.  Your terrific podcast "Bag Man" is the gift that keeps on giving. 

You know, the `73 memo, Robert Dixon was a distinguished lawyer but it`s always been seen by me at least as a really shoddy piece of work that doesn`t explain why when there`s nothing in the Constitution, you can have a categorical rule against even indicting a president.  Admittedly, you`ve got to postpone the trial proceedings while he or she is serving. 

But, you know, more to the point, Rachel, that memo was essentially repudiated nine months later.  That September `73 memo was repudiated when the United States filed in the United States Supreme Court, in the United States versus Nixon, by Leon Jaworski, the special counsel, but acting on behalf of the Department of Justice said they did not accept the proposition, did not accept the proposition that a president could not be indicted and indeed strongly believe he could be an unindicted co- conspirator and did that with regard to Nixon. 

And I think the Agnew saga that you tell so well in "Bag Man" tells us a lot too.  One of the reasons Agnew resigned was that he was facing criminal prosecution and indictment and knew that he had to give up the vice presidency as the bargaining chip. 

MADDOW:  In terms of --

DELLINGER:  You know --

MADDOW:  Sorry, go ahead, sir. 

DELLINGER:  Go ahead. 

We learned something very important from the anti-Semitic dances that Spiro Agnew did after he left the vice presidency.  Now, he was allowed -- by giving up the vice presidency, he was allowed to plead guilty to one charge of a $10,000 fine and unsupervised probation.  And that slap on the wrist, which as you tell it was so hard to take on behalf of the prosecutors in that case of his severe corruption, that allowed him to lead a fairly distinguished life thereafter. 

And it makes me question whether that light a penalty for Agnew was really worth playing if it allowed him to have the kind of role he had with the Saudi jihad project. 

MADDOW:  And, of course, all these things mesh together.  I mean, Agnew felt compelled to resign because he believed he was subject to indictment.  The attorney general was able to bring that pressure to bear on him only because Nixon did -- excuse me, because Agnew had no reason, real reason to believe he was going to be immune from prosecution. 

It is striking to me to see this top aide to Attorney General Elliott Richardson at the time from the time the Dixon memo was written saying that was never intended to be a definitive pronouncement on indicting a president to the extent that that has laid some of the foundation for us believing as a country that that`s completely off the question.  That`s curious.  This shouldn`t be seen as something that should be so durable either in the specifics of the Dixon memo or anything that`s grown since then. 

I mean, do you think, I mean, absent the politics of whether or not this is realistic, do you think this is something the justice department should revisit?  Should Mueller or the office of legal counsel go back at this question about the indictability of presidents and vice presidents? 

DELLINGER:  I do think they do -- they should, especially -- especially if the president would not waive the statute of limitation for any crimes that time might expire during his time of service.  If he won`t do that, then I think they should proceed to an indictment if the facts of the law warrant it.  And then proceed to prosecution when he leaves office. 

Remember, no one disputes that the president can be indicted once he leaves office, and that`s only 22 months out from this term. 

MADDOW:  Walter Dellinger, the former head of the Office of Legal Counsel acting solicitor general -- sir, we`re really, really happy we were able to get you here to talk to us about this tonight.  Thank you so much for making time with us. 

DELLINGER:  Well, thank you.  You`re welcome. 

MADDOW:  All right.  Up next, something to watch for tomorrow in the special counsel case against the Trump campaign chairman.  Tomorrow, we are about to get something that is going to be in my estimation red hot, at least something you are definitely going to want to read.

  Stay with us.  That`s next.

(COMMERCIAL BREAK)

MADDOW:  Today, former Trump campaign Chairman Paul Manafort got a new sentencing date in Virginia.  He`s going to be sentenced on Friday, March 8th. 

Now, this is the jurisdiction where Manafort was convicted on eight felony counts of bank fraud and tax fraud.  Prosecutors say the sentencing guidelines suggest a 19 to 24-year sentence for Manafort just in Virginia.  Now, that March 8th sentencing date comes five days before his other sentencing date in the other jurisdiction where he`s been charged.  That sentencing will be less than a week later on Wednesday, March 13th, in Washington, D.C. 

In that D.C. case, a judge recently ruled that Manafort broke his cooperation agreement when he deliberately lied to Mueller`s investigators about important stuff, including his contacts with the man who prosecutors say has active ties to Russian intelligence.  Eek! 

I should tell you that tomorrow, we`re expecting to get a detailed sentencing submission from Mueller`s prosecutors in that D.C. case.  We`ve already seen that in Virginia.  That`s where we got the 19 to 24-year range.  We`re expecting the D.C. sentencing submission from Mueller`s prosecutors tomorrow. 

Now, it will be interesting.  I mean, I don`t have any inside knowledge but given what we know about these types of documents, this filing will be narrative.  It will be something you will definitely want to follow the news about.  Whether or not Robert Mueller`s report is imminent, the sentencing report on Manafort in Washington, D.C. will be something you want to pay attention to. 

So, that`s my way of telling you that tomorrow night`s show is going to be a doozy.  We`ll see you then. 

That does it for us tonight. 

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

Good evening, Lawrence. 

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