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At least 20 states reject settlement. TRANSCRIPT: 9/12/19, The Rachel Maddow Show.

Guests: Matt Zapotosky

ALI VELSHI, MSNBC HOST:  Juliet, good to talk to you.  Thank you for joining me.  Juliet Eilperin is with us tonight. 

All right.  That`s ALL IN for this evening. 

"THE RACHEL MADDOW SHOW" begins right now. 

Good evening, Rachel. 

RACHEL MADDOW, MSNBC HOST:  Good evening, Ali.  Much appreciated. 

Thanks to you at home for joining us this hour as well. 

A little bit of an ominous development today in the spy story that has been unfolding over the past few days about the well-placed high-level source the CIA apparently used to have inside the Kremlin.  A source close enough to Vladimir Putin that he reportedly could provide U.S. intelligence agencies with photographs of documents on Putin`s desk. 

He reportedly was able to give U.S. intelligence agencies the documentation that they needed to be able to confidently say that the Russian attack on the 2016 election had been approved of and ordered directly by Putin himself.  For reasons that remain unclear, that very, very, very valuable human source inside the Russian government got exfiltrated from Russia, got taken out of Russia on an emergency basis in 2017 by the U.S.  He was apparently brought back to the U.S. to live here instead. 

And for reasons that also remain unclear, his existence and then soon thereafter his identical and soon after that his exact address have all been reported in multiple media outlets over the last few days. 

So, this spy has been outed.  And the Kremlin has now basically confirmed that yes, that`s the guy.  At least they`re confirming that was his name and he was a Russian government official and yes, he mysteriously ended up living in the United States and is no a Russian government official. 

When this whole story comes out, it`s going to be an amazing spy novel.  It`s halfway there already.  But I mentioned a somewhat ominous development in this story today is that Russia has now put out an Interpol notice seeking international assistance for the Russian government to locate this person who, again, has just been named in multiple Western media outlets as somebody who was working as a spy for the United States inside the Kremlin. 

Now, that news is ominous because of the well-documented history of Russia tracking down and killing its dissidents and critics and spies all over the world.  This report about them looking for this guy through Interpol comes hot on the heels of this gonzo reporting in the "Wall Street Journal" yesterday that U.S. officials now believe that the Russian government is responsible for yet another assassination in a Western country just in the past couple of weeks.  We`re going to be talking about this incredible story more on tomorrow night`s show.  But U.S. officials are telling the "Wall Street Journal" that last month when a Chechen guy was murdered as he walked through a park in Berlin, in Germany, U.S. officials now believe that was an assassination ordered by the Putin government. 

Quote: The United States believes that Russia is responsible for this assassination.

So, while we`re getting fresh evidence about the Russian government`s willingness to kill people it doesn`t like, Russians anywhere in the world, track them down in any Western country, it doesn`t matter to them, they`ll kill anybody anywhere on Putin`s orders.  While we`ve got fresh evidence of that, we`ve also got this spy inside the Kremlin who was working for U.S. intelligence newly out and now apparently in hiding.  Russia as of today using Interpol among other things to try to find him. 

While we are on the subject, you should also know that across Russia today, there were more than 200 police raids in 43 different Russian cities, all targeting supporters and colleagues of Russia`s leading opposition figure, Alexei Navalny.  In elections this weekend in Russia, pro-Kremlin, pro- Putin representation in regional and city governments took a really big hit.  The opposition did much better than anyone expected. 

Alexei Navalny is the highest-profile opposition leader in the country.  Those election results where the opposition did great, that`s now produced what appears to be the largest police operation yet against Navalny and the opposition that he leads.  Again, more than 200 raids in more than 40 locations around Russia. 

Navalny himself keeps getting arrested.  He keeps getting physically attacked.  But this time, they`ve gone after hundreds of people who Russian authorities say are associated with him including some candidates who stood for office in this weekend`s elections. 

"The New York Times" reporter on the scene, Andrew Higgins, also reports today that the offices of an independent election monitoring organization were also raided in Russia today alongside all of the pro-Navalny folks because, of course, if there`s anything scarier to an authoritarian government than a strong opposition, it`s fair elections.  And so you have to make sure you get your election monitors too. 

Radio Free Europe has just today posted this CCTV footage of one election monitor at this weekend`s elections in Russia getting sucker-punched, getting punched out in St. Petersburg in a polling place while elections officials on scene and police on the scene just pretended not to notice that this had happened. 

Here at home, there was some unexpected and still unexplained news out of Congress and the administration that pertains to some of these matters.  Today in the Senate, they were due to hold a hearing where senators of both parties -- I kid you not, both parties, it would have involved Republican senators too, we have it on good authority -- senators of both parties were set today to criticize President Trump and the Trump White House for holding p a whole bunch of money that Congress had said should be sent to Ukraine -- $250 million worth of military assistance to Ukraine to help them push back against Russia. 

Trump has been blocking the dispersal of that money for almost a year, which, of course, is a great gift to Vladimir Putin. 

"Washington Post" also recently reported in a very provocative editorial that the Trump administration was using that money to basically try to extort Ukraine into helping President Trump with his re-election effort.  "The Post" reporting last week that the Trump administration had conveyed word to Ukraine that if they really wanted to get that $250 million in military assistance to help them fight off Russia, then if they want to get that money, they should open up a prosecution of Joe Biden or a prosecution or an investigation to some member of the Biden family or otherwise come up with something that might help Donald Trump in his re-election effort in the event that he ends up running against Biden. 

In any case, there was going to be a hearing about why the Trump administration and President Trump were blocking that money from going to Ukraine.  That was going to happen today.  The Trump White House was about to be criticized by both Democratic and Republican senators on this issue. 

And then bingo, that`s apparently all this takes.  The tiniest, teeniest, teeniest little pushback, even the tiniest promise of a tiny pushback.  That is all it takes with this administration and this president.  And bingo, they caved. 

The Trump administration apparently conveying word to the Senate overnight last night on the eve of this hearing that in fact they are finally going to drop the hold on that $250 million of military aid for Ukraine.  I mean, they`ve been holding it back for a year. 

But they did not want to be criticized on this issue.  They did not want to have to explain in public why they were holding back that money.  They definitely do not want to have to answer any questions about it.  They do not certainly want to face any Republican pushback about it.  And so they caved. 

Now, the State Department wouldn`t comment when asked about it today.  Even Senator Lindsey Graham, who is the one who made this sort of surprise announcement in the Senate hearing room today that apparently subject of the hearing was moot, they`ve freed up the money.  Even he seemed to not know how to explain it or at least not want to talk about it. 


REPORTER:  What about the Ukraine aid?  What exactly happened either today or yesterday with the Ukraine aid --

SEN. LINDSEY GRAHAM (R-SC):  I don`t know. 

REPORTER:  But you said that it was --

GRAHAM:  I still don`t know. 

REPORTER:  It had been freed up? 

GRAHAM:  Yes.  Last night.  You need to ask them. 


MADDOW:  Yes, I don`t know.  I don`t know.  You need to ask them.  I don`t want to talk about it. 

But they`re not saying anything either. 

I mean, big picture, it is amazing the stuff that Trump tries to get away with, particularly as it pertains to policy that affects Russia.  But it is also worth noting that the Trump White House is very susceptible to pushback on this issue.  I mean, Republicans almost never push back on anything Trump does, right? 

But when they do he always caves every single time.  If the Republicans in Congress were anything like, you know, the Tories in Britain that have been standing up to Boris Johnson on matters of principle as he pursues this Brexit thing, if the conservatives in the United States were anything like the conservatives in Britain standing up to their leader when they disagreed with him on stuff, we would have a completely different political situation in this country.  We would have a completely different policy situation in this country. 

Trump always caves when Republicans push back against him.  The reason we are where we are is Republicans almost never can be bothered to push back.  But that may end up being an important dynamic going forward in a big developing story tonight that we are following, along with help from a couple of very well-informed guests who are going to join us in just a moment. 

One reporter who has been leading the way on this story today and one former official to help give us some context. 

But the story is -- you might have seen these headlines about this today, about what appears to be a maybe botched or at least somewhat haywire effort to try to bring about a criminal prosecution of this man, Andrew McCabe, who became director of the FBI right after President Trump fired FBI Director James Comey.  He had been deputy director.  Comey got fired, that made him director. 

You might remember, one of the things that happened right after Trump fired James Comey, literally two days after, that was that just by coincidence, there happened to be scheduled a big intelligence hearing, an annual oversight hearing on worldwide threats. 

This is a hearing that happens every year.  And it`s always a big deal hearing.  You get the head of the CIA, head of the NSA, head of the FBI.  They give you this big picture dramatic view of American national security threats and American efforts to counter those threats. 

The problem was when this happened in 2017, the problem was the FBI director had just been fired by the president under absolutely bonkers circumstances.  Just 48 hours earlier.  And so, now, the new guy, right?  Two days on the job.  Had to go do that very high-profile hearing. 

And he did it.  It was very, very tense for everyone involved.  New Mexico Senator Martin Heinrich started off his questioning to Andrew McCabe that day asking McCabe about his recent interactions, his very recent interactions with President Trump. 


SEN. MARTIN HEINRICH (D-NM):  When did you last meet with the president, Director McCabe? 

ANDREW MCCABE, FORMER FBI DEPUTY DIRECTOR:  I don`t think I -- I don`t think I --

HEINRICH:  Was it earlier this week? 

MCCABE:  -- I`m in a position to comment on that.  I have met with the president this week but I don`t really want to go into the details of that. 

HEINRICH:  But Russia did not come up? 

MCCABE:  That`s correct.  It did not. 

HEINRICH:  Thank you. 

We`ve heard in the news that claims that director Comey had lost the confidence of rank-and-file FBI employees.  You`ve been there for 21 years.  In your opinion, is it accurate that the rank and file no longer supported Director Comey? 

MCCABE:  No, sir.  That is not accurate.  Director Comey enjoyed broad support within the FBI and still does to this day. 

We are a large organization.  We are 36,500 people across this country, across this globe.  We have a diversity of opinions about many things.  But I can confidently tell you that the majority, the vast majority of FBI employees enjoyed a deep and positive connection to Director Comey. 

HEINRICH:  Thank you for your candor. 


MADDOW:  Thank you for your candor. 

I`ll tell you what they`re trying to prosecute him for now is an alleged lack of candor.  So that sticks out in hindsight.  I`ll have more on that in just a second. 

But the tension in that room, right?  McCabe having been flung into running the FBI under really weird circumstances but also there testifying about it two days into it at this big intelligence committee hearing with every eye in the country staring at him trying to figure out what the heck has just happened.  It was just a very tense, very difficult scene. 


SEN. RICHARD BURR (R-NC):  I`m going to recognize myself for five minutes.  Did you ever hear Director Comey tell the president he was not the subject of an investigation?  Could you do your microphone, please? 

MCCABE:  Rookie mistake.  I`m sorry. 

Sir, I can`t comment on any conversations the director may have had with the president. 


MADDOW:  OK.  Rookie -- nervous.  Right? 

Looking back at that day now, we now know that in that hearing room that day on that incredibly tense moment, right, with all these senators asking about his interactions with Trump and what happened between Trump and Comey on Russia and has Trump been talking to McCabe about Russia and him trying to answer questions but really not wanting to talk about anything having to do with Trump at all, well, we now know now looking back at that incredibly tense day, that Andrew McCabe as he sat there had just had a disastrous and ultimately career-ending meeting with Donald Trump himself in the Oval Office. 


MCCABE:  I`ve never been to a meeting in the Oval Office before.  I`m a career FBI agent, government worker. 

INTERVIEWER:  Oval Office was above your pay grade? 

MCCABE:  It certainly was.  And the president immediately went off on a -- almost a gleeful description of what had happened with the firing of Jim Comey.  And then he went on to state that people in the FBI were thrilled about this, the people really disliked Jim Comey, and that they were very happy about this and that it was a great thing. 

INTERVIEWER:  He was telling you what the reaction inside the FBI was. 

MCCABE:  He was.  It was very different than the reaction I had seen immediately before I came to the White House. 

INTERVIEWER:  Which was what? 

MCCABE:  People were shocked.  We had lost our leader, a leader who was respected and liked by the vast majority of FBI employees.  People were very sad. 

But anyway, that night in the Oval Office, what I was hearing from the president was not reality.  It was the version of the events that I quickly realized he wished me to adopt. 

I was speaking to the man who had just run for the presidency and won the election for the presidency and who might have done so with the aid of the government of Russia, our most formidable adversary on the world stage, and that was something that troubled me greatly. 

INTERVIEWER:  How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president? 

MCCABE:  I think the next day I met with the team investigate the Russia cases and I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward.  I was very concerned that I was able to put the Russia case on absolutely solid ground, in an indelible fashion that were I removed quickly or reassigned or fired, that the case could not be closed or vanish in the night without a trace. 


MADDOW:  So this is Andrew McCabe.  He becomes the director of the FBI after the president fires James Comey.  After the president fires James Comey, he then immediately invites the Russians, the Russian foreign minister and the Russian ambassador, into the Oval Office and tells them all the pressure he`s been facing about Russia is off because he fired Comey. 

McCabe in his short time as FBI director approves the opening of two investigations into Trump himself.  First, did the president in fact fire Comey for that reason that he explained to the Russians?  Right?  Did he fire Comey or do anything else to try to impede the government`s investigation into Russia`s interference in our election? 

So McCabe approves, number one, the opening of an obstruction of justice investigation into president Trump.  He also approves expanding the FBI`s existing counterintelligence investigation into Russia`s attack on our elections to include President Trump`s potential role in that as well, right?  And that the central counterintelligence question of whether President Trump had been compromised at some point by that foreign power. 

I wonder whatever happened to that investigation.  Anywho, Andrew McCabe is the one who opened up both of those investigations into President Trump.  And for his trouble, he found himself relentlessly berated and slimed by the president and by the president`s supporters in the conservative media and by the president`s supporters in Congress.

And, you know, if you were looking to destroy somebody and destroy their career and destroy their reputation and turn them into an unrecognizable bogey man, Andrew McCabe would be a great candidate for that, right?  He`s the guy who approved these two incredibly serious investigations into the sitting president, a guy who was himself an important witness in the obstruction investigation into the president`s behavior toward the FBI, somebody who could directly attest to James Comey`s behavior and what was known about interactions between Comey and Trump before Trump fired him. 

He also was willing to publicly attest that the president`s assertions about Comey being hated at the FBI were not true.  McCabe himself was also an expert on Russian organized crime, which has turned out in the Trump era to be not the kind of thing you want to highlight on your resume anymore if you`re in law enforcement or intelligence. 

In any case, the president decided that Andrew McCabe would become a primary target of his ire and his insults.  The president insisted not only that McCabe was evil and corrupt and a traitor and he had to go.  The president specifically insisted that McCabe had to be fired from the FBI and fired before McCabe could get his retirement benefits. 

And after a relentless public campaign by the president to bring about that result, indeed Andrew McCabe was fired, 26 hours before he would have qualified to receive his retirement benefits after 20 years in the FBI.  That put McCabe within the ranks of all of the senior intelligence and law enforcement figures who have been forced out of their jobs and/or vilified by the president after playing key roles in the early stages of investigating Russia`s attack on the U.S. to try to put Trump in the White House, right?  Everybody from the acting attorney general to the FBI director to the next FBI director, McCabe, to the top counterintelligence agent at the FBI, to the top Russian organized crime expert at the Justice Department, to the director of national intelligence, to the CIA director, from whom Trump tried to strip a security clearance, I mean, even the top lawyer at the FBI. 

All these senior people involved in the initial investigation, right?  All these people involved in investigating what Russia did to try to install Trump in the White House, all these people who were involved in that investigation or who crucially might have been witnesses to what happened between Trump and Comey, all of them have since seen themselves and their careers systematically targeted by President Trump and the Trump administration and their helpers in conservative media. 

But with Andrew McCabe, they`re now going an extra mile.  They are demanding not just the destruction of his career and his reputation but they are now demanding his criminal prosecution.  And the proximate charge is related to an internal investigation at the Justice Department into who at the FBI leaked information to the "Wall Street Journal" confirming that there was an FBI investigation before the election into potential wrongdoing at the Clinton Foundation. 

Now, I know, why would a possessed anti-Trump partisan do such a thing, right?  Leak information about a Clinton investigation to the "Wall Street Journal"?  I mean, that`s a thing that would help Trump get elected.  That would hurt Clinton`s chances of getting elected. 

Why would a virulent anti-Trump partisan do something like that?  Yes.  I know it makes no sense. 

The point here is not that you`re supposed to be able to follow a logical string of evidence or argument here.  The point is that he must be destroyed.  So, suspend your disbelief, right? 

It was technically Attorney General Jeff Sessions who fired McCabe.  That itself is awkward given that one of the other criminal investigations McCabe opened in his time at the FBI was a criminal investigation into Jeff Sessions for perjury, for appearing to lie about his own contacts with the Russian government during the Trump campaign while he was under oath before the U.S. Senate.  McCabe had opened that investigation into Sessions, Sessions turns around and fires McCabe from the FBI. 

But then after that they still wanted more, right?  Eighteen months after the inspector general report that was used to justify his firing over this leak about the Clinton investigation, news started to burble out of the Justice Department they were going to bring charges against McCabe too.  "The New York Times" had this report on it last month this article by Adam Goldman.  Quote: Prosecutors near decision on whether to seek an Andrew McCabe indictment.  Even in that first report, though, there were signs that there might be what Goldman called headwinds for prosecutors as they tried to lock him up. 

Quote: Prosecutors may face headwinds if the case were to go to trial.  One prosecutor, for example, quit the case and has expressed frustration with how it`s being managed.  Also, a key witness provided testimony to the grand jury that could hurt the government`s case. 

Again, that was just the first report from the "New York Times" last month.  Well, now, today, we`ve got reporting from multiple news sources that the Trump Justice Department really is trying to do this.  The Trump-appointed U.S. attorney in D.C., Jesse Liu, has reportedly signed off on bringing criminal charges against McCabe.  The deputy attorney general, Jeffrey Rosen, also appointed by Trump has reportedly signed off on bringing charges against McCabe. 

These officials are all now letting it be known that they want it, they would love for it to happen.  They definitely want to lock him up.  But what`s very, very interesting about this story as of right now is that at least as of tonight, it`s not happening. 

Remember, it`s been 18 months since the supposed criminal referral here, and it`s taken this long to get to yes, we want to charge him.  But they still haven`t charged him.  And why is that? 

Well, here`s Adam Goldman and Katie Benner in the "New York Times" tonight with more on these headwinds that seem to be in the way of this prosecution. 

Quote: Hints of the case`s weakness have emerged.  The investigation was referred about 18 months ago, which is an unusually long stretch for an inquiry with a limited set of facts and witnesses.  It dragged on for so long that the first grand jury examining the evidence expired before apparently being called back this week. 

One prosecutor assigned to the case recently left.  An unusual step so close to an indictment.  Another prosecutor departed for a private law firm and has expressed reservations about the merits of the case. 

One key witness testified that McCabe had no motive to lie because he was authorized as the FBI`s deputy director to speak to the media, so he would not have had to hide any discussions with reporters.  Another important witness testified he couldn`t remember how the leak unfolded.  Both of those witnesses` testimony would have been crucial to any prosecution. 

And "The Times" raises the prospect that maybe prosecutors took this to a grand jury to try to get from that grand jury an indictment of McCabe and maybe that effort failed.  Maybe the grand jury said no, we`re not going to do it. 

Quote: If a grand jury declined to indict, that would be an embarrassment for prosecutors.

Reporters Matt Zapotosky and Spencer Hsu at "The Washington Post" have more detailed reporting today both on the internal dissent on trying to bring this prosecution against McCabe and what might be happening with the grand jury. 

Quote: Internally, there was significant discussion about how best to proceed.  Two assistant U.S. attorneys at some point left the case.  One left the U.S. attorney`s office entirely.  That person had concerns about how the McCabe case was being handled, according to people familiar with the matter. 

A federal grand jury investigating McCabe was suddenly recalled this week after a months-long hiatus, an indication its members would likely be asked soon to consider bringing charges.  But the panel was released today with no immediate signs of an indictment, a sign either that they balked or they`ve been asked to return later or they perhaps filed a determination under seal.

All these Trump-appointed officials at the Justice Department are letting it be known that they said yes to charges against Andrew McCabe.  But for some reason, the effort to bring charges against Andrew McCabe isn`t working. 

One of the reporters who may have the keenest insight into why that is, somebody who`s been leading the coverage on this story, joins us next. 

Stay with us.


MADDOW:  Joining us now is Matt Zapotosky, who over at the "Washington Post" with Spencer Hsu, has been leading the fascinating reporting today on this question of whether or not the former FBI director is about to be criminally charged.  Andrew McCabe is the FBI official who opened a counterintelligence investigation and an obstruction of justice investigation into President Trump himself. 

Mr. Zapotosky, thanks very much for making time.  Appreciate it. 

MATT ZAPOTOSKY, THE WASHINGTON POST:  Yes, thank you for having me. 

MADDOW:  So, I just in the opening segment tonight tried to explain what we understand about the Justice Department sort of trying to pursue criminal charges against McCabe.  Let me just ask you, have I got anything wrong or if there`s anything else you can update us on at this point. 

ZAPOTOSKY:  I think you mostly got it right.  It`s a real mystery.  We learned this week that the grand jury that hadn`t been seen in months was suddenly summonsed back.

And usually, that`s an indication that charges are imminent, right?  They`ve presented all this evidence.  They`ve had these high-level discussions, some of which you talked about in the open.  And they`ve summoned the grand jurors back. 

So, you expect they`re going to present an indictment.  On Wednesday, when the grand jury is back in, they leave, no indictment. 

Today, McCabe`s team is notified, the deputy attorney general, the number two official at the Justice Department has decided your appeal is sort of void, we`re going to go forward with this. 

The grand jury is in again.  Nothing happens.  It`s just very, very strange.  And I have to say, we don`t know what is happening. 

There`s all sorts of possibilities.  One is there are problems.  Maybe this grand jury is balking or has returned some kind of no bill.  Another situation could be that they have returned something under seal.  Another situation is that I guess they`re still just hearing evidence, though that doesn`t really explain the months-long gap. 

So, this is just a weird situation that, you know, we`re really trying to get to the bottom of. 

MADDOW:  And just for context here, I was asking around talking to former prosecutors and people who have experience with the Justice Department today asking, you know, how often does it happen that a grand jury gets a presentation from prosecutors who are seeking an indictment and the grand jury says no?  How often does a grand jury balk? 

And what I was hearing just anecdotally is that is a very rare thing and part of the reason it`s hard to read the tea leaves here is that just doesn`t happen very often. 

ZAPOTOSKY:  Oh, it`s extremely rare.  I mean, there are some high-profile examples of that. 

And to be clear, we don`t know with certainty that that is what happened here.  But it is extremely rare.  I was looking at data, and I think in 2013, which was the last I was able to find data, it was like five in all of the federal cases, which is tens of thousands.  It just rarely, rarely happens. 

Often when it happens, you suspect that prosecutors didn`t really want to bring the case.  Like in police shootings where while they presented it to a grand jury, but they didn`t ask them to do anything. 

That is not the situation here.  As the Justice Department has made very clear, they`re on board with the prosecution.  The U.S. attorney is on board.  The deputy attorney general`s on board.  They`ve communicated that to McCabe. 

But what is unclear is why a prosecution hasn`t happened if that`s the case. 

MADDOW:  Exactly.  And actually just for clarification on this, you talked about how weird it was that the grand jury came back.  Is this actually -- did the first grand jury expire and this is now a second grand jury they`ve convened to look at the McCabe stuff or did they bring back the one that hasn`t been there for months but it`s still actually the same jurors? 

ZAPOTOSKY:  So I heard you read my friend Adam Goldman`s reporting on that.  I can`t corroborate that there were two grand juries.  We understand one grand jury that has been looking at this case and looked at it long ago was brought back. 

So the same people that looked at this long ago went months and then were brought back.  I can`t speak to Adam`s reporting if there was maybe another grand jury. 

MADDOW:  Matt Zapotosky, who covers the Justice Department at "The Washington Post", this is -- it`s a sort of serpentine reporting in a way but it`s also incredibly important and just fascinating.  Thanks for helping us understand it, Matt. 

ZAPOTOSKY:  Thank you. 

MADDOW:  All right.  I now want to bring into the conversation a different Matt, Matt Miller, former Justice Department spokesperson during the Obama administration.  Just for some perspective on what this all means -- Matt, thanks for making time.  I appreciate you being here. 


MADDOW:  Let me just get your reaction to this reporting.  The prospect of criminal charges against McCabe and what seems to have evolved over the course of this fascinating day where Trump-appointed officials keep saying they want an indictment and none seems to be materializing. 

MILLER:  Yes.  So, two things.  First on the question of whether he should be prosecuted or not -- look, I think you have to look at both the question of whether he actually did it, whether he committed a crime.  And while there is some evidence to that effect that McCabe and his attorneys have presented pretty powerful arguments to the contrary. 

But I think there`s a second question you ask, which is, is bringing a prosecution appropriate?  And one of the ways you answer that question is by looking at similarly situated individuals and seeing if other people in similar situations have been prosecuted.  And it doesn`t take long to look through just the last few years and find multiple examples of DOJ officials who have lied to investigators, internal investigators, and not only haven`t been prosecuted but haven`t even been fired. 

In fact, there was a case just two weeks ago of a very senior official, a deputy assistant attorney general, a job that`s often filled by political appointees, who lied to investigators and wasn`t fired, was allowed to resign quietly and prosecution was declined. 

So, you know, this case is being handled differently, and I think you have to ask why.  And it`s hard to come up with any answer other than the pressure the president has put on the department. 

With respect to what happened today, it is very unusual.  You can think of a few things.  Matt went through some of them that might have happened. 

One is they`re continuing to investigate.  They want to gather more evidence.  That would seem very strange given that they had been gone for a few months.  The other is that he is indicted and it`s under seal, but that would be strange too.  You usually do that when the investigation is continuing or when someone is a flight risk and you need to arrest them.  That`s obviously not the case here. 

And the other is that the grand jury either pushed back or outright as Matt kind of speculated voted no.  And if so, that would be surprising.  It would be a huge embarrassment for the department.  And I think it would be another sign of how weak this case ultimately is. 

MADDOW:  Well, if we look at this in context, I mean, there`s a few different things that seem like they might be relevant here and weighing on the relevant officials and prosecutors.  I mean, this is the U.S. attorney`s office that did just lose in court when they brought charges against Greg Craig in a case that was an offshoot of the Mueller investigation.  This is also a case where the president has not only, you know, inveighed against Andrew McCabe being a terrible person, he`s demanded his prosecution, demanded his prosecution for specific things, demanded his conviction.

And it`s hard not to see how that might actually poison an effort to successfully convict somebody if -- I mean, the jury would have to believe this wasn`t selective or politically motivated prosecution.  And in this case, I feel like the president`s actions here might have made that a really hard case. 

MILLER:  Yes.  Look, both of those things are huge problems and are the kind of things that would typically wave the department off or get them to at least think very strongly about not pursuing this case.  If you look at all of the normal factors the department would consider, none of them really argued for prosecution here. 

The fact that it does look like a selected prosecution when you compare him to other individuals inside the department, the fact that it looks so political because the department -- because of the president`s actions, he`s tweeted about McCabe or attacked him at rallies or in speeches dozens of times.  He`s attacked his wife publicly.  He`s called for him to be fired and to be prosecuted. 

The fact that the case is so weak and it looks very likely -- I should say there`s a strong chance that they could lose and you add to that the fact you have it coming so closely on the heels of the Craig thing.  All of those arguments add up for a case you would typically pass on.  McCabe has said he`s going to air all of the department`s dirty laundry.  That`s the kind of case the department typically doesn`t want to bring. 

And so, when you look at that and you say none of the normal factors argue for indictment, you say what`s actually going on here, and the only thing that you`re left with is saying the president wants him indicted, the senior leadership at the department wants him indicted, and they`ve sent that pressure down the line.  The U.S. attorney is getting in line. 

MADDOW:  Yes, and you`ve had all of the people who are making it known publicly that they want this prosecution too are all Trump-appointed officials.  And that shouldn`t matter when you`re talking about Justice Department professionals.  But in this case, it reeks. 

Matt Miller, former Justice Department spokesperson, it`s been too long since you`ve been here, Matt.  Thanks very much for being here tonight.  Hope to see you soon. 

MILLER:  Thank you. 

MADDOW:  Thanks a lot.  All right.  Much more ahead tonight.  Stay with us.


MADDOW:  You may have seen these headlines yesterday and today about a big potentially game-changing development when it comes to the opioid epidemic that has claimed the lives of roughly 400,000 Americans and counting. 

Purdue Pharma, the company behind OxyContin, which is the mega opioid that started it all, they`re reported to have finally reached a settlement with thousands of local governments and some states that have all sued them for pushing OxyContin the way they did when they knew it was being dangerously abused and all they did in response was push more of it in ways that would maximize their own financial benefit from the overuse and abuse and addiction to their product. 

The reports about the settlement say the company`s going to hand over a bunch of money.  The family that runs Purdue Pharma will hand over about $3 billion of the fortune they made off OxyContin.  The family will also give up ownership of the company. 

But honestly, that last bit might be a blessing for them at this point because the family that owns Purdue Pharma, the Sackler family, they`ve been in these negotiations with all these plaintiffs who have been complaining among other things that the family was going to still keep billions of dollars that they made off OxyContin.  The reason those negotiations broke down before now, the reason this settlement is at hand now is because the Sackler family recently started warning that the company, Purdue Pharma, is about to go bankrupt, with the implication being hey, stop badgering us, stop trying to negotiate a better deal out of us, stop trying to get more of our family money, you better take this deal while you can or you might get nothing at all because the company`s going to go bankrupt. 

Well, here`s the beauty of that move for them.  As the Sackler family is now threatening that the plaintiffs ought to settle right now or they`re going to get nothing because the company`s filing for bankruptcy, one of the reasons Purdue Pharma appears like it is about to go bankrupt is because the Sackler family appears to have started raiding the company, taking billions of dollars of cash out of the company for themselves.  As soon as they realized they might have some real legal liability on their hands for all the Americans who died with their product as the last thing they ever ingested. 

Look at this newly unsealed filing in Oregon state court which alleges that the Sackler family started taking billions of dollars out of the company for themselves as soon as the company`s legal troubles became apparent. 

Quote: By 2007, the damage wrought by OxyContin and Purdue`s aggressive and unlawful marketing of the drug had exposed Purdue to catastrophic liability.  Fearing that Purdue would collapse under the weight of criminal and civil investigations and more than 100 lawsuits, the Sacklers engaged in a concerted planned effort to siphon billions of dollars out of Purdue Pharma and transfer it to themselves and other entities in the Sackler Pharmaceutical Enterprise. 

Between 2008 and 2018, they directed Purdue to make nearly $11 billion in total distributions to partnered companies, foreign entities, and ultimately to trusts established for the benefit of the Sackler families.

So, this company is facing these thousands of lawsuits.  Settlement talks with breaking down because the family that owns the company was refusing to give up more of their own money.  Turns out the money they`ve got is money they sucked out of the company when they realized the company was going to be sued for all it`s worth. 

And so now, oh, by the way, turns out there isn`t that much to take from the company because it`s going bankrupt.  So, sorry for your loss, we gamed this out years ago, we took the money.  We stashed it offshore. 

So, over the last 24 hours, you have probably seen all these headlines about this big settlement and how this is finishing the whole matter, right?  Well, maybe not.  At least 20 states are now refusing to sign on to this reported agreement over among other things that very sticky sticking point of how much the Sackler family themselves will pay. 

This global settlement proposal is a big deal.  But Purdue threatening to file bankruptcy while the Sackler family drained billions out of the company for themselves, that appears to be the real story of how they`re trying to make this all go away. 

Watch these states that won`t settle on these terms.  This is going to get very interesting very fast. 

More ahead. 


MADDOW:  NBC News investigative producer Laura Strickler had the scoop.  She was the first reporter to get the story last month that Purdue Pharma, the makers of OxyContin, were looking to settle all the litigation before them.  The Sackler family, which owns Purdue, was looking to globally settle thousands of lawsuits from cities and local governments and tribes and states, all in one big settlement to make all their obligations go away, one and done. 

Well, now amid crackling hot allegations that the Sackler family may have raided their own company and taken billions of dollars out of it for themselves once they realized how badly they were going to get sued, now it looks like at least some states have decided they`re not going along with that settlement.  Not if the Sackler family themselves gets off that easy. 

Joining us now is NBC investigative producer Laura Strickler. 

Ms. Strickler, thank you very much for joining us tonight.  I really appreciate you making time. 


MADDOW:  First of all, let me ask if the way that I have explained this basically comports with what you understand in terms of the settlement talks and these allegations against the family that may be throwing a wrench in the works here. 

STRICKLER:  Yes.  And those allegations, I will say that a source close to the family has told us, has told NBC News that you know, they dispute those allegations and say that the family took money out of the company, that $11 billion that you mentioned, Rachel, because they felt they were in the clear from some of the litigation against them at that time. 

MADDOW:  OK.  And so they wanted money then because they thought they would never be tied up in a future settlement is their argument? 

STRICKLER:  I mean, at the time they were facing 100 lawsuits so it`s hard to understand how they, you know, clearly there was a lot of litigation pressure against them during that -- during those ten years.


STRICKLER:  But right now, what we`re seeing is that there`s 27 states.  That`s 23 states and four territories who are going for this deal, but we found -- NBC News has found that 26 are saying no.  They don`t want to do this deal. 

MADDOW:  Really?  So, a majority of states that are supposedly going to be settled with in this would be global settlement, most of the states are now saying "no" to it? 

STRICKLER:  Yes, and you know, it is a fluid situation.  There are some states that we haven`t accounted for just yet, but there are some surprises like the state of Idaho told us earlier today they are opposed to this deal, and that`s a Republican attorney general.  Most of the A.G.s who are in favor of this deal are Republicans. 

MADDOW:  In terms of what happens next, obviously the Sackler family has sort of been saying leading up to this point, listen, take it or leave it.  The company`s going to go bankrupt, and this is the best chance you`ll ever have at getting a settlement where you get real money. 

If it is rejected by a significant number of the parties that would otherwise be part of that settlement, is the idea of those states that are saying no, that they think they should be able to get a better deal and now?  Or is the idea that they`re willing to ride this out and take it through the bankruptcy process and let this whole process start over again? 

STRICKLER:  Yes, so what we`re seeing is that the -- the expectation is that the company will file for bankruptcy in New York very soon, and then a lot of these decisions will be up to the bankruptcy judge, and that judge will have a tremendous amount of power and will be able to then determine, to shape the future of this final deal as to how much money will be given out to the states in terms of, you know, to meet some of the treatment needs that they have, which are quite desperate at this point. 

MADDOW:  Laura Strickler, investigative producer for NBC News, who`s been such a leader on this story, thank you so much for helping us understand this development.  Thanks. 

STRICKLER:  Thank you.  Thank you very much. 

MADDOW:  We`ll be right back. 


MADDOW:  This morning at 6:20 in the morning, 11 Greenpeace protesters went to the Houston Ship Channel and they hitched themselves to the side of this very tall bridge.  The Houston Ship Channel is the largest thruway for oil and gas in the United States, more than 700,000 barrels pass through the Houston Ship Channel every day. 

As all the Democratic presidential candidates were headed to the debate tonight in Houston, Greenpeace said they were there at the Houston Ship Channel to send the candidates a message about climate change and what they described as a prospect of a world beyond fossil fuels. 

The Coast Guard today did have to shut down a portion of the Houston Ship Channel because of those protesters swinging overhead.  There are nine refineries along the Houston Ship Channel.  Greenpeace`s action today blocked off access to five of the nine of them. 

The activists plan to stay tethered to that bridge for a full 24 hours until 6:00 tomorrow morning.  At first, it looked like the Houston`s sheriff`s department was going to let them stay there.  Law enforcement thought it would be too dangerous to try to pull those climbers down. 

But then, tonight, local police did start lowering themselves off the bridge and lowering the climbers down onto boats in the channel below.  Greenpeace tells us that their activists wanted to stay in place and were prepared to be there overnight, but they did not resist arrest. 

We`re told police are still in the process of lowering all the activists down.  This is an ongoing situation. 

Watch this very high up space.


MADDOW:  Thanks for being with us tonight.  Appreciate you being here.  That does it for us tonight.  We are going to see you again tomorrow.

But, now, it is time for "THE LAST WORD WITH LAWRENCE O`DONNELL".

Good evening, Lawrence.

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