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The end of the beginning for Michael Cohen. TRANSCRIPT: 2/26/19, The Rachel Maddow Show.

Guests: Rebecca Ballhaus, Karen Bass

CHRIS HAYES, MSNBC HOST:  Ton of fun.  You can download it wherever you get your podcast. 

We -- that is ALL IN for this evening. 

"THE RACHEL MADDOW SHOW" starts right now. 

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST:  Did I flummox you? 

HAYES:  Every time I do a podcast tease.  See, we do podcast tease and you`re out there and like stretch and tease.  And when we don`t do it, you`re there. 

But when we do the podcast tease and like at the end of it, like, you can get wherever your podcast, like stretch, which is iTunes and TuneIn -- 


MADDOW:  Yes, I just want everybody to realize at home you`re doing this in real time.  This is live television.  Somebody is in your ear piece saying, we don`t know where Rachel is. 

HAYES:  Exactly. 

MADDOW:  You know, I do this just to keep you on your toes. 

HAYES:  You do a good job tonight. 

MADDOW:  And I owe a lot, my friend.  Thank you very much.

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

All right.  I told you this week was going to be nutty, right?  In terms of the amount of news we would be dealing with over the course of this week but also every day.  I don`t like to say I told you so, but I told you so.  So, it is, in fact -- it is, in fact, becoming a nutty news week and today has been sort of insane. 

But let`s just jump right in.  There`s a lot going on.  I got to tell you also the next 24 hours are going to be even nuttier than today was, so we also need to pace ourselves a little bit. 

But let`s start with what the House has just done tonight.  The House of Representatives tonight has just voted to block the president`s declaration of a national emergency, which is the way he`s trying to go around Congress to try to build a wall between the United States and Mexico.  Now, this vote tonight in the House is not a surprise. 

Today in Congress, the top U.S. military commander with responsibility for homeland defense said directly that there is no military threat related to anything that`s going on on the southern border, which is a specific way of undercutting the president`s assertion that there is some sort of national security emergency there. 

This is also not a surprise in terms of this vote tonight because the House is also now controlled by Democrats.  The Democrats in the House are unanimous that this emergency declaration from the president about the border is bogus and potentially illegal.  So, all Democrats voted against the president on his emergency declaration tonight in the House. 

What was perhaps a surprise is that more than a dozen Republican members of the House crossed over to vote with the Democrats on this resolution.  The final vote ended up tonight being 245-182.  Again, that is the vote to block the president`s emergency resolution. 

Well, now this heads to the Senate.  They have no choice in the Senate but to vote on the same thing the House just voted on.  The Democrats we think will all vote for it.  If four Republicans cross over to vote with the Democrats, this thing that just passed the House will also pass the Senate. 

So far, already three of the four Republican votes needed in the Senate are committed.  So, it really looks like the president will likely lose on this, that the Congress will block him from declaring his emergency so he can build his wall.  It`s just a matter of how long it`s going to take for him to lose.  The Senate has 18 days to take up this matter and they do not have a choice, they have to vote on it now that it has passed the House. 

Now, on a related matter, you should also know that the House today issued its first subpoenas to the Trump administration since the Democrats took control in Congress.  The subpoena -- the subpoenas issued today are for documents from various federal agencies.  Documents that the Trump administration has thus far refused to hand over to Congress.  All on the issue of immigrant kids being taken away from their parents at the border. 

There was a very dramatic hearing on that subject today.  The Democratic chairman of the judiciary committee, Jerry Nadler, put it bluntly.  He described that policy as kidnapping. 

Again, though, that issue has generated the very first subpoenas from the new Democratic-controlled Congress to the administration.  The administration has been having a very hard time coming up with a single story to tell about the origin of that policy of taking kids away from their parents, let alone the implementation of that policy, and specifically they have not been able to explain how exactly they lost track of so many kids, why they didn`t bother in the first place to track which kids belonged to which parents.  So, Democrats in Congress are going after that issue as aggressively as they have gone at anything since they took over, and the issue of kids being taken away from their parents at the border, that today the subject of the first subpoenas from this new Congress to the administration. 

We`ll have more on that story ahead tonight, including a member of that Judiciary Committee joining us live. 

Today also was the first day of what are expected to be three days of testimony from the president`s longtime personal attorney Michael Cohen.  Michael Cohen, of course, has pled guilty to nine felony charges, including lying to Congress and two campaign finance felonies in which he and federal prosecutors in the Southern District of New York told the federal judge overseeing Cohen`s case that it wasn`t just Cohen who committed those felonies, the president himself was also implicated in them. 

Today`s first day of testimony from Michael Cohen was in front of the Senate Intelligence Committee, and although it happened behind closed doors, so we don`t know directly what happened, CNN reports tonight that one of the things that happened in that closed-door testimony is that Michael Cohen apologized to members of the committee for having lied to them the last time he testified to them.  Again, those lies he told to Congress are part of the reason why Michael Cohen is about to report to federal prison in May.  We`re expecting him not only to apologize to that Senate intelligence committee today, but also to the House Intelligence Committee when he testifies to them behind closed doors on Thursday. 

Now, beyond his apology for his previous false testimony today, we know very little about what Michael Cohen said to the Senate intelligence committee today.  Again, that testimony was given in closed session. 

That said, I think personally for me, it was a little unnerving to see Mark Warner, the top Democrat on the Senate Intelligence Committee, the vice chairman of the committee, he walked out toward the end of Cohen`s testimony today and he talked to reporters very briefly about how it had gone with Michael Cohen.  For me, it was a little unnerving, a little unsettling that this is what Mark Warner had to say about what he heard today from Michael Cohen behind closed doors. 


SEN. MARK WARNER (D-VA), VICE CHAIRMAN, INTELLIGENCE COMMITTEE:  Quickly, we`ve still got a little bit more time to finish, and the only comment I`m going to make is that two years ago when this investigation started, I said it may be the most important thing I`m involved in in my public life in the Senate.  And nothing I`ve heard today dissuades me from that view. 

REPORTER:  Did the president commit any crimes, sir? 


MADDOW:  And then he took no further questions. 

Not long thereafter, Michael Cohen himself emerged from that close closed- door hearing with Senate Intelligence Committee members.  Cohen is not in a position to be able to elaborate what he talked about in that closed session.  That`s why it`s a closed session.  But he did thank everyone staking out the hearing room and he did further raise expectations when he testifies not behind closed doors but in an open hearing that will be televised starting at 1:0:00 a.m. 


MICHAEL COHEN, FORMER TRUMP ATTORNEY:  First of all, I want to thank you for sticking around and waiting for me.  At this point in time, I really appreciate the opportunity that was given to me to clear the record and to tell the truth, and I look forward to tomorrow to being able to in my voice to tell the American people my story, and I`m going to let the American people decide exactly who is telling the truth.  So I want to thank you all again for sticking around.  Have a good night. 


MADDOW:  You can hear where the scrum of reporters start shouting questions to Michael Cohen about his testimony, about what he`s going to say tomorrow, about what he`s going to say about the president. 

The anticipation for what Cohen is going to say in this open hearing tomorrow has been stoked all day today by multiple news agencies reporting that Cohen is basically bringing a dump truck with him to describe his years of dealings with president Trump and the Trump organization.  We`re told that Cohen is prepared to testify on matters touching on everything from the president`s personal behavior to the way the president has filed or not filed his taxes to alleged criminal behavior by the president during the time he has been president. 

And on that last point, which I think is maybe more important than we are ready for heading into that testimony tomorrow, apparently Cohen is prepared to bring documents tomorrow to Congress that specifically relate to the campaign finance felonies for which Michael Cohen is about to go to prison. 

Now, "The Wall Street Journal" has put a finer point on this than anybody else tonight in their new reporting.  And the new reporting in "The Wall Street Journal" tonight says that tomorrow, Michael Cohen is going to give Congress a check, a check made out to Mr. Cohen for the purpose of reimbursing him for the illegal hush money payments that Cohen made to benefit the Trump campaign.  The illegal hush money payments related to Stormy Daniels, who had said that she had had a sexual encounter with President Trump.  That hush money payment was apparently made to stop her from talking about that publicly before the election. 

Again, that is a campaign finance felony to which Michael Cohen has pled guilty and for which he is going to prison.  Citing a person familiar with Cohen`s planned testimony, "The Wall Street Journal" reports tonight that, quote, in his testimony Wednesday, Cohen will provide documentation of his reimbursement for the $130,000 payment he made to Stormy Daniels to keep her quiet about her alleged affair with the president ahead of the election.  "The Journal" reports tonight that Cohen will show the oversight committee tomorrow a signed check, quote, Mr. Trump signed some of the checks reimbursing Mr. Cohen, which Mr. Cohen began receiving after Mr. Trump took office. 

So, again, that reporting tonight from "The Wall Street Journal" and, again, this hush money stuff is not, like, the Stormy Daniels story, right?  This is not just a salacious story about the president and Ms. Daniels and whether or not the president allegedly had an affair or a sexual encounter with her.  Separate and apart from any salacious or sexual content of this story, the payoff element of this story makes this a criminal matter, right?  This is a felony to which Michael Cohen has already pled guilty and for which he is going to prison, and in which the president -- in which prosecutors say the president is personally implicated, right? 

Prosecutors have described the president as directing Michael Cohen to commit this felony.  They have described that in court filings.  They have described that through Michael Cohen`s allocution in open court before a federal judge.  If Michael Cohen is going to provide documentary evidence tomorrow to that effect, if Michael Cohen is going to give Congress evidence tomorrow that implicates the president in having committed financial crimes while he has been serving as president, what is Congress supposed to do with that?  I mean, what is supposed to happen next after hypothetically the Congress tomorrow gets evidence of the president committing crimes in office? 

I mean, this is not a totally, totally unprecedented situation.  It`s unprecedented in a lot of ways, but it at least has cousins, right?  In the case of Vice President Spiro Agnew, federal prosecutors obtained rock solid evidence that Vice President Agnew had taken envelopes full of cash, bribes and kickbacks in his White House office while he was serving as vice president.  The way federal prosecutors responded to that evidence when it came to the vice president in 1972, 1973, is that they prepared a 40-count indictment against Vice President Agnew and then they let the Nixon/Agnew White House know that they had done that, that they had prepared that indictment. 

Agnew and his lawyers argued publicly that Agnew couldn`t be indicted while he was in office, but nevertheless, they then entered into secret negotiations with the Justice Department, that Agnew would agree to leave office, he would agree to resign as vice president in exchange for pleading to just one of the counts that they were preparing to charge him with.  And because prosecutors in 1973 did not throw the book at Spiro Agnew, because they did not end up bringing that 40-count felony indictment against Vice President Agnew, because they let him resign instead of facing that indictment, so he only had to plead to one count, because of that precedent, the Agnew case is controversial, but it is also the precedent here. 

And if this reporting tonight from "The Wall Street Journal" is correct, and if Michael Cohen is in fact about to hand over to an investigating congressional committee tomorrow evidence related to the president committing financial crimes, felonies while in office, we are now getting to point where that Agnew precedent sort of crashes in to the current history we are living through with this current sitting president.  So, we`re going to have the lead "Wall Street Journal" reporter on that story coming up here live in just a moment. 

I will say, though, because of everything that`s being reported in advance of Michael Cohen`s open testimony tomorrow, because of the anticipation of the kinds of documents that Cohen might be about to hand over, what he may be able to testify to in terms of the president`s behavior, I do think it`s reasonable to expect that the prospect of Michael Cohen`s open testimony tomorrow may be causing some consternation at the Justice Department right now, right?  I mean, this doesn`t happen very often.  But if clear evidence of the president`s involvement in felonies since he`s been serving as president, if clear evidence of that is made public tomorrow -- I mean, the Justice Department has to be prepared tonight for how they`re going to react or not to the public airing of that evidence.  They`re also presumably preparing for the possibility that this evidence may generate a formal criminal referral from Congress concerning the president`s alleged crimes.  They may refer this matter for prosecution to the Justice Department. 

Now, in terms of whether or not the president can be indicted and can be prosecuted for a crime, the somewhat shaky Justice Department internal policy on that issue is based in part on the Spiro Agnew precedent.  On the Agnew-era Justice Department guidance which said that a vice president could be indicted but a president could not.  And I describe that as somewhat shaky Justice Department policy, not only because of the evidence we`ve turned out, which suggest that people involved in the initial creation of that policy in the Agnew era, they never intended for that to be the last word on whether or not the president can be indicted. 

I mean, even if you ignore the historical origins of this Justice Department policy, which suggests this should have never led to any permanent policy that the president can`t be indicted, even if you ignore that interesting history about the origins of that policy, you should also just look at what`s going on with President Trump and that policy right now.  I mean, if this "Wall Street Journal" report tonight is correct and Michael Cohen is in fact going to hand over financial documentary evidence tomorrow of the president`s involvement in that illegal campaign finance scheme, which Cohen has pled guilty to already -- I mean, think about it, this is already a case where federal prosecutors right now are butting up against this idea that a president has nothing to fear from the criminal law, right?  This idea that a sitting president just can`t get in trouble for any crimes he committed, either before or during his presidency. 

I mean, on these specific issues, on this specific set of facts about which Cohen is reportedly going to testify tomorrow and about which he is reportedly going to hand over incriminating documents tomorrow, federal prosecutors in the Southern District of New York have already told a federal judge that the president is personally implicated in the commission of these felony counts, right?  If there is such clarity in the Justice Department that a president has nothing to fear from the criminal law, how does -- how do you explain that, that federal prosecutors have already told a federal judge the president is implicated in those felonies? 

I mean, depending on what happens tomorrow and what evidence Michael Cohen makes public, potentially we are getting to the part of the plot here where we`re going to learn if there are federal prosecutors who may try to challenge that internal Justice Department policy which says you can`t indict a president.  If prosecutors don`t intend to try to defy or challenge that policy directly, there is also the possibility, which is being increasingly discussed in legal circles, that prosecutors may try to interpret that current Justice Department policy in such a way that they wouldn`t attempt to directly prosecute the president right now while he`s still in office, but they might potentially bring a sealed indictment against the president.  One that would only be unsealed once the president was no longer in office. 

Now, such a move would have two advantages from prosecutors` perspective.  First, it would effectively stop the clock on any statute of limitations, on any crimes committed by the president, right?  That would make it so the president couldn`t use his de facto immunity from prosecution while he`s serving in office to run out the clock on the statute of limitations for any of his crimes. 

So, that`s one benefit to this sealed indictment approach.  Of course, the second major benefit to prosecutors if they brought a potential sealed indictment against the president is that that could set the stage for negotiations of the same kind that the Justice Department entered into with Spiro Agnew in 1973, right?  Negotiations in which this office holder knows that he is up against serious felony charges but he has this one great advantage in his plea negotiations with prosecutors, the great advantage that almost no other criminal defendant has, which is that this office holder, in this case it would be the president could, like Agnew, offer to trade away his resignation, just like Agnew did, in exchange for prosecutors making some or all of those criminal charges go away. 

So, again, I think this might be a -- I think what`s about to happen might be a bigger deal than we are broadly grappling with.  On the eve of this testimony from the president`s longtime personal lawyer, with these reports that Michael Cohen is about to provide evidence in public and to Congress of the president committing criminal acts while in office, it`s starting to look like we`re getting into the kind of territory where the Agnew precedent becomes very relevant, where the issue of the president`s potential indictability, potential prosecutability are maybe treated as separate matters. 

Maybe the president can`t be prosecuted now under Justice Department policy, but maybe that`s a separate issue from whether or not the president can be indicted.  And if the president can`t be indicted, is the president allowed to essentially negotiate with prosecutors over his own fate, as it balances against those potential criminal charges?  If that is the part we are getting to, then this is also the part of American history where the character and the independence of the U.S. Justice Department becomes the most important thing we may ever need to know about this moment in American history. 

I mean, just think about this from the big picture, right?  Think about this like it`s 50 years from now and your grandkids or great grandkids are looking back at this time in history, right?  If we are living through a moment in which there is an active criminal in the White House, somebody who is committing felonies while serving as president of the United States, if we are living through a moment in American history where there is a criminal in the White House but the Justice Department and our system of law enforcement and oversight has integrity and is independent and acts the way it is supposed to when confronted with bad actors like this, then the history of this moment is the fact that there`s a criminal in the White House and it becomes an interesting story in American history about that criminal in the White House. 

But on the other hand, if there is a criminal in the White House, if there is somebody who is serving as president of the United States and committing felonies while holding that job, and our Justice Department and our system of law enforcement and oversight doesn`t have integrity and isn`t independent and goes along with it and helps to cover up those crimes, helps to make it OK that those crimes were committed simply because the criminal held a high office when he did it -- well, in that case that means this moment in history is not just about there being a criminal in the White House, that will mean we have a real problem as a country.  That is going to be harder to fix than if this is just a problem with one bad guy. 

So, this scandal surrounding this president and the ongoing legal troubles of this president at one level are a human drama.  At another level, they are an American drama, and the independence and the integrity of the Justice Department right now is the pivot on which we decide which of those this is.  So, this is a very delicate moment, and this is a very important time. 

Tonight, a pro-Trump Republican member of congress, congressman from Florida, got online and started threatening Michael Cohen ahead of his House testimony tomorrow.  That has led to a burst of controversy and discussion as to whether or not a sitting member of Congress can be legally liable for violating the federal laws that protect against intimidating witnesses who are participating in law enforcement proceedings, including proceedings before Congress. 

Today, in a federal appeals court in Washington, D.C., the special counsel`s office had a major and long-awaited legal victory, a bunch of defendants and witnesses in the Russia scandal so far have tried to challenge the appointment of special counsel Robert Mueller as unconstitutional or somehow improper.  Mueller has thus far beaten back all of those court challenges.  By my count there have been four or five of them before today. 

Today, though, Mueller beat back the most serious one.  This was the case involving Andrew Miller, one of the somewhat random young men who is loosely connected to the president`s longtime political adviser Roger Stone, who has recently been arrested and charged with seven felony counts.  Andrew Miller had been subpoenaed by the special counsel`s office last year to supply testimony to the grand jury.  Miller had resisted the subpoena and then conservative legal organizations had taken up Mueller`s case as their best hope vehicle to try to challenge the existence of the Mueller investigation, to basically have the Mueller investigation declared illegal, to have the whole Russia investigation annulled legally. 

Well, today in a unanimous ruling from a three-judge panel on the D.C. Circuit Court, Andrew Miller and those conservative legal organizations lost that case against the special counsel`s office.  Now they may yet further appeal either to the full on bank D.C. Circuit or to the Supreme Court, but as of now, they`ve lost, and it looks like as of now Andrew Miller is going to have to respond to that grand jury subpoena and we will find out in the end, we expect, what exactly that grand jury subpoena might be leading toward when it comes to Andrew Miller`s testimony.  It also means that the Mueller investigation is still batting 1.000 in terms of defending its own existence against these various challenges. 

Also today, the accused Russian agent Maria Butina appeared in court in D.C. for what many observers thought would be the end of her case.  Butina`s lawyer told us last night her passport had been handed over to U.S. immigration authorities in hopes to quickly facilitating her deportation to Russia, upon which they hoped and expected to be the quick conclusion of her case. 

Well, at her court hearing in Washington, it didn`t go that way.  Prosecutors told the judge, actually Maria Butina is not done in her Cooperation with the federal government.  They are not ready to move forward with her sentencing.  They don`t expect to be back in court to start her sentencing process for at least another four weeks. 

Now, we don`t know what she is still cooperating on, but prosecutors do say they want more of her time. 

So we are in this moment, right, where we have seen all these obituaries for the Russia investigation, all these stories about how the Mueller investigation is wrapping up and they got nothing and it`s all coming to an end. 

Turns out it all proceeds a pace, including from the special counsel`s office specifically, but this thing that`s going to happen tomorrow in Congress is potentially a huge deal, with Michael Cohen`s expected testimony tomorrow we are hitting what appears to be a significant crossroads.  If "The Wall Street Journal" is right tonight and Congress is about to be given evidence tomorrow, physical evidence of the president committing financial crimes while he has been serving as president, as a country, we`re going to have to decide which way we go with that right away.  Like right away.  Like before this time tomorrow. 

So let`s get to that.  The lead reporter on the story from "The Wall Street Journal" joins us next. 


MADDOW:  So here`s from "The Wall Street Journal" tonight. 

Quote: Michael Cohen, Donald Trump`s former lawyer, plans on Wednesday, meaning tomorrow, for the first time to publicly accuse President Trump of engaging while in office in criminal conduct related to a hush money payment to a porn star.  Quote, Mr. Cohen`s planned testimony comes 13 months after "The Journal" first reported that Cohen paid $130,000 in October 2016 to former adult film star Stormy Daniels to buy her silence after she alleged having a sexual encounter with Mr. Trump. 

In December, federal prosecutors in New York for the first time directly implicated the president in the payoff scheme, referring to him in court papers as individual one, alleging that Trump had played a key role in the payments.  Cohen plans to give his most detailed public account to date of Trump`s alleged direction of the hush payments as well as how Trump was involved in efforts to conceal them from the public weeks before the 2016 election.  Cohen also plans to allege that Allen Weisselberg, the Trump Organization`s chief financial officer, was involved in those efforts. 

In his testimony on Wednesday, Cohen will provide documentation of his reimbursement for the $130,000 payment to Stormy Daniels, which he received in monthly installments of $35,000 throughout 2017.  In other words, while Trump was president.

Quote: Mr. Cohen intends to show the panel a signed check. 

This the news tonight broken by "The Wall Street Journal."  The president`s longtime lawyer is going to show the House Oversight Committee a signed check documenting him being reimbursed for this illegal campaign contribution hush money scheme, which raises some questions, right?  Some very important questions in terms of what`s about to happen next with this presidency. 

If the checks to Cohen covering that illegal campaign contribution hush money payment were checks that were signed by the president, what does that mean legally for the president?  And if, as prosecutors say, the money for those hush money illegal campaign contributions was falsely booked at the Trump Organization, at the president`s business, as some kind of legal fee when in fact it was not at all, what does that mean legally both for the president and for the president`s business itself? 

Joining us now is Rebecca Ballhaus, White House reporter for "The Wall Street Journal".

Ms. Ballhaus, congratulations on this tonight.  This is an important story. 


MADDOW:  So, your reporting at "The Journal" that Cohen intends to accuse Trump of criminal conduct while in office.  So I imagine the distinction there is between what he said in his allocution in federal court when he accused the president of having directed the commission of this felony.  That was something that would have happened during the campaign before he was sworn in. 

You`re saying what he`s going to provide tomorrow is that the president`s criminal involvement in this scheme persisted and extended into his time when he was serving as president. 

BALLHAUS:  That`s right.  And it`s a key distinction when a lot of lawmakers have raised questions about if you`re beginning impeachment hearings or even looking at that, can you examine actions that were done to win election or does it need to be actions that were committed while in office? 

MADDOW:  In terms of the check that Mr. Cohen is due to show this committee tomorrow, this is a check -- is it clear from the context or from the document itself that this check is in fact a reimbursement for Cohen`s -- Cohen putting forth money in this illegal scheme as opposed to this check being for some kind of legal fee or legal retainer as it appears the Trump Organization might have put it in their books? 

BALLHAUS:  That`s a question that we don`t yet know the answer to, and I think the context in which Cohen puts this tomorrow is going to make all the difference.  We do expect him to, as you mentioned, show a signed check to the committee that is a reimbursement for the payment that he made to Stormy Daniels in October 2016.  We don`t know if the check is going to be marked for Stormy Daniels. 

I, in fact, would expect it would not be marked that way.  We don`t know if he`s going to talk about any conversations he had with the president about that reimbursement while he was in office.  Something like that would make the difference in terms of making the point that the president was aware of this Stormy Daniels payment in 2017, which the president has said he was not. 

MADDOW:  If the president`s business was used essentially to try to cover up and hide the existence of this illegal campaign contribution, right, I`m describing it as an illegal campaign contribution because that`s what Michael Cohen has pled guilty to when this set of facts was described in relation to his charging documents when he pled guilty to these two campaign finance felonies.  If this was all done, if this was all covered up through the president`s business, what`s the significance of the president as an officer of that business versus Allen Weisselberg who is the chief financial officer at the Trump Organization, how is Mr. Weisselberg play into this?  How is the president`s business potentially implicated here as a business entity? 

BALLHAUS:  Well, I think we know already from the charging documents from August that were filed in the Manhattan -- by the Manhattan U.S. attorney`s office that the -- that officers of the Trump Organization are implicated.  We`ve reported that executive one, who is named in the documents, is Allen Weisselberg, the company`s longtime CFO. 

And we know that Michael Cohen is going to testify tomorrow and has already told prosecutors that Weisselberg was involved in trying to cover up this Stormy Daniels payment.  We also have reported that SDNY since Michael Cohen`s guilty plea has kind of broadened its organization to look at the Trump Organization and possible campaign finance violations by the company. 

I think the degree to which the president is implicated in the investigation into the company remains to be seen.  He, of course, has turned over management of the company to his adult sons and to Mr. Weisselberg.  He does still retain ownership of the company, and I think the degree to which he was involved in organizing that reimbursement and -- when he signed those checks could be really important here. 

MADDOW:  Rebecca Ballhaus, White House reporter for "The Wall Street Journal."  "The Wall Street Journal," of course, has done absolutely pioneering work on a number of aspects of this story as it relates to Michael Cohen but this hush money payment in particular.  Thanks for helping us understand your reporting, Rebecca.  We appreciate you being here.

BALLHAUS:  Thank you. 

MADDOW:  All right.  We got much more to get to tonight.  Do stay with us. 



SEN. JACK REED (D-RI), ARMED SERVICES COMMITTEE:  In your opening statement, you say, and I quote, the threats to our nation from our southern border are not military in nature, closed quotes.  So just to be clear, in your professional opinion, does the illegal crossing of the border by civilians represent a military threat? 

GEN. TERRENCE O`SHAUGHNESSY, COMMANDER, U.S. NORTHERN COMMAND:  Senator, first, I would say first that I do think a secure border does reduce threats to the homeland.  Now specific to your question about is it a military threat that is coming towards us, it is not a military threat. 


MADDOW:  It is not a military threat.  That`s the top U.S. general for homeland defense saying clearly today there is no military threat emanating from the U.S. southern border. 

Now that, of course, is not helpful to a president who is trying to declare the southern border to be a national emergency to justify the president taking money from the military`s budget to instead build himself a wall between us and Mexico. 

But now, this is interesting.  Today, two members of the House Armed Services Committee sent this letter to the Pentagon demanding written justification for the idea of using the military`s money to build the president`s wall.  What is most interesting about this is this is a bipartisan letter.  This is signed by John Garamendi, who is the chairman, the Democratic chairman of that subcommittee.  It`s also signed by Doug Lamborn, who is the Republican ranking member of that subcommittee, which has oversight over how the military spends its money. 

They are demanding an answer to their letter by Friday, demanding a justification for why the president is going to take military money to build that wall on the basis of that so-called emergency declaration.  So stick a pin in that.  They say nothing bipartisan ever happens anymore.  That was bipartisan. 

This has been a day of a lot of unusual things happening on Capitol Hill.  The other must-see news from Congress we`ve got coming just ahead.  Do stay with us. 


REP. JERROLD NADLER (D-NY), CHAIRMAN, JUDICIARY COMMITTEE:  When a stranger rips a child from a parent`s arms without any plans to reunify them, it is called kidnapping.



MADDOW:  The subpoena cannon fired its first shots today.  The House today approved the first subpoenas of the new Congress since Democrats have taken control.  The subpoenas will require the White House to turn over records about the Trump administration`s policy of taking kids away from their parents at the southern border. 

This was a bipartisan move today.  Two Republicans voted with their Democratic colleagues to issue these subpoenas.  The Democratic chairman of the committee that ordered them Elijah Cummings said today that the subpoenas are part of his committee`s job to protect kids from what he called government-sponsored child abuse. 

When the Trump administration started forcibly taking little kids away from their parents at the border, as a matter of policy, part of the moral and legal disaster of that policy is that they made no plan to track those kids after they took them away from their parents, let alone a plan to eventually reunite them with their moms and dads. 

Today, the Democratic-led Judiciary Committee held a hearing to try to find out why.  Most of the headlines about the testimony today were about how senior Trump administration officials admitted they did nothing when they were warned that family separations would harm these kids and harm their families.  They went ahead with it anyway. 

But part of what was so striking about this hearing today was the way members of Congress have started talking about the family separation issue.  The focus was not just on the numbers of kids taken away, the statistics, trying to get a handle on the size of the problem, from the beginning today, it was striking.  This hearing was about what this policy did, what the U.S. government has done under President Trump to essentially negate the value of these families who have come to the United States, to nullify the idea of them having meaningful family ties. 

It was about the impact that the Trump administration in this policy has had on moms and dads and kids and about the outrage that came out of what the Trump administration did when they basically decided to annul the family bonds of these families.  To dissolve what held them together and pretend that nothing relevant did.  No regard for their value as a family.  No plan to put them back together again. 

When you treat families like their family bonds don`t matter to you and don`t exist, it ultimately leads to criticism like this. 


NADLER:  When a stranger rips a child from a parent`s arms without any plan to reunify them, it is called kidnapping. 

REP. MARY GAY SCANLON (D), PENNSYLVANIA:  When the issue is framed as an invasion by aliens and when we refer to children as UAC`s, it`s easier to pretend they`re not human or worthy of compassion. 

CARLA PROVOST, U.S. BORDER PATROL CHIEF:  But the focus was on, first and foremost, criminal aliens. 

REP. HAKEEM JEFFRIES (D), NEW YORK:  By criminal aliens, you mean human beings, is that correct? 

PROVOST:  Yes, sir, illegal alien is a term in law, but, immigrants, yes. 

JEFFRIES:   OK.  Undocumented immigrants. 

REP. SYLVIA GARCIA (D), TEXAS:  Did you ever just say this really goes against humanity, we should not be doing this to children? 

SCOTT LLOYD, FORMER OFFICE OF REFUGEE RESETTLEMENT DIRECTOR:  I did not see anything along those lines, as apparent in the --

GARCIA:  Did you ever think of your own child and what would happen if someone took your child from you? 

REP. KAREN BASS (D), CALIFORNIA:  If a parent is deported and they know where their child is in the United States, how do they get their child back? 


MADDOW:  Congresswoman Karen Bass from California there at the end asking a question that the Trump administration had no plan to answer when they started taking kids away from their parents, how do they get their child back? 

Joining us now is Congresswoman Karen Bass.  She`s a Democrat from California, a member of the House Judiciary Committee and she`s chair of the Congressional Black Caucus. 

She was here at today`s hearing on family separations. 

Congresswoman, it`s a really pleasure to have you here tonight.  Thank you for joining us. 

BASS:  Thank you. 

MADDOW:  First of all, I`m struck by the fact that as far as I can tell, these are the first subpoenas to the Trump administration from Congress since the Democrats have taken control, and to have it happen on this issue, to see that pointed and emotional hearing today, I just wanted to get big picture your perspective on whether or not this is going to change, whether this is something that can be remedied.  Whether you think Congress can make progress on this. 

BASS:  Well, I absolutely think it has to be remedied, but I think there is going to need to be legislation that absolutely requires the government to take responsibility for reunification because you know right now the government is not responsible.  I think that the parents that were deported, they need to send the children back.  They also need to incur the expense because I have been told on numerous occasions that families have to pay to have their children flown home.

But one of the things that concerns me a lot, Rachel, is this category of parents that were considered ineligible to reunify with their children.  There is no basis for a border patrol agent to determine who is eligible or ineligible to be a parent.  We do not treat children that way in the child welfare system when their parents have been charged with neglect and abuse.

So, why on earth would we do that to parents who have no charge at all? 

MADDOW:  The slipperiness of this policy has made it hard I think to cover and hard for the general public to keep track of whether or not progress is being made and whether or not the general public outrage over this policy is being attended by this administration.  Part of I feel like what you were getting at today in your questioning and some of your other colleagues on your committee as well was the issue of whether or not the administration actually has a coherent policy on this, whether or not it ended at a specific time.  Whether there are still ways that families are being separated, even when the -- when the administration says that the policy broadly is over. 

Do you feel like you and your colleagues are getting to the bottom of whether or not this is still happening and to what degree? 

BASS:  No.  I think we`re right at the surface, but I do think they have a coherent policy.  Their policy is to punish parents and to have that be a deterrent so that people won`t continue to come across the border.  One of the most egregious policies I think that we will look back years from now and say we cannot believe that our government actually did this. 

So I think they have a coherent policy.  I do think progress is being made on the children that are party to the lawsuit of the ACLU, but the children that were not involved in that lawsuit before the case was filed and after, I`m not sure what`s happening there.  I do believe separations are continuing because it`s not clear who they decide is a family member or not. 

Does a grandmother qualify?  Does a sibling qualify?  Does an aunt qualify?  I don`t believe they do. 

And they do still separate the children, and I don`t believe that they know how many children were separated.  I believe that they are only accounting for the children in the lawsuit, not the ones before and not the ones after. 

MADDOW:  Congresswoman Karen Bass of California, thank you for your time tonight.  I know that this is just the start with the Judiciary Committee and with Congress in general.  I hope you`ll keep us apprised as you guys keep digging into this.  Thanks for being here. 

BASS:  Absolutely.  Thank you. 

MADDOW:  All right. 

I need to tell you, since we`ve been on the air tonight, we have just gotten an opinion, an important opinion on this question, which may be coming up soon, which is the question of whether or not a sitting president can be indicted.  Since I have been on the air tonight, we`ve had an opinion issued on that subject from someone who is very qualified to take a position on it.  I`m going to get this together in the commercial break.  It`s just happened.  We`ll have that story for you next.


MADDOW:  Former Attorney General Eric Holder reportedly mulling a potential run for president this year.  Attorney General Holder has not yet said one way or the other if he is going to run, but the fact that he last talked to reporters about that possibility while he happened to be visiting Des Moines, Iowa, tells you that is he definitely thinking about it. 

Tonight, however, former Attorney General Eric Holder has just made some news for a different reason.  Since we have been on the air tonight, just a few minutes ago amid this cascade of news about the president`s former lawyer Michael Cohen testifying in open session tomorrow to what we`re told to expect will be alleged criminal conduct by the president while President Trump served as president. 

While we have been talking about that anticipated testimony tomorrow from Michael Cohen, Attorney General Eric Holder has just tweeted moments ago, quote: A sitting president can be indicted.  He wrote, quote: The Constitution does not anticipate allowing a president who used fraud to obtain the office to remain in power.  Executive branch paralysis during the criminal process is not a compelling argument against the ability to indict a president, consider the 25th Amendment, a sitting president can be indicted. 

Again, Eric Holder posting that this hour. 

We are living through a wild moment in American politics.  We are living, frankly, through a wild moment in American history, but there`s more to come tonight.  Stay with us.


MADDOW:  I can`t imagine you have not already called in sick on the occasion of this, but just so you know, the Michael Cohen testimony tomorrow is due to start at 10:00 a.m. Eastern Time.  You should absolutely plan to watch it live right here at MSNBC throughout the duration of that hearing.  Then we`ll see you here tomorrow night. 


Good evening, Lawrence. 

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