The Impeachment Hearings. TRANSCRIPT: 12/4/19, The Rachel Maddow Show.

Guests: Pramila Jayapal, Eric Swalwell, Chris Murphy

CHRIS HAYES, MSNBC HOST:  Yes.

SEN. DEBBIE STABENOW (D-MI):   -- not the Midwest that are losing their markets.  So this whole thing, it`s not fair.

  HAYES:  Wow.

STABENOW:  It just -- it boggles the mind. 

HAYES:  It sure doesn`t sound fair to me. 

Senator Debbie Stabenow of Michigan, thanks for being with me tonight. 

STABENOW:  Thanks.

HAYES:  That is ALL IN for this evening. 

"THE RACHEL MADDOW SHOW" starts right now. 

Good evening, Rachel.

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

HAYES:  You bet.

MADDOW:  Much appreciated.

Thanks to you at home for joining us this hour. 

Forty-five years ago, in February of 1974, the impeachment investigators in the House of Representatives who were looking at the Watergate scandal and President Richard Nixon, they produced this report -- the constitutional grounds for presidential impeachment. 

It`s really good, actually.  It really holds up after 45 years.  It`s very readable.  It`s about 60 pages long, and it does exactly what`s promised in its title.  It`s a fairly straightforward thing and it runs through what the Constitution tells about impeachment and also what the previous experience is that we`ve had in this country with impeachment, up until that time. 

Again, this was February of 1974 when this came out, which is the Nixon impeachment.  So, at that point in `74, there`d only been one other attempt at presidential impeachment.  That had been Andrew Johnson way back in the 1800s. 

But there had been other impeachments of non-officials other than presidents.  And the impeachment committee in Watergate walked through what had happened with President Johnson and they walked through what the Constitution says and what our history offers us -- offers us in terms of how to approach impeachment. 

And you can see here the way they stack it up, the historical origins of impeachment.  The English parliamentary practice, the intention of the Framers, the purpose of the impeachment remedy, the adoption of, quote, high crimes and misdemeanors. 

They`ve also got a whole section on what they call the criminality issue, which I feel like we should adopt as a general subhead for the news these days.  And now onto today`s news in the criminality issue. 

But in the impeachment context, the criminality issue is the sometimes counterintuitive, somewhat sticky issue of whether or not the president has to have committed something that violates an actual law in order to cross the ground into impeachable territory.  According to the committee that was investigating the Watergate scandal, the criminality issue as it pertained to impeachment, they considered to be something that was pretty easy to settle. 

The report says, quote, the American experience with impeachment reflects the principle that impeachable conduct need not be criminal.  Of the 13 impeachments voted by the House of Representatives since 1789, at least ten involved one or more allegations that did not charge a violation of criminal law.  Impeachment and the criminal law serve fundamentally different purposes.  The purpose of impeachment is not personal punishment, its function is primarily to maintain constitutional government. 

It`s interesting, right?  And the impeachment committee or the Watergate committee is making these constitutional arguments in terms of how they read the provisions in the Constitution that pertain to impeachment, but they also look at the historical experience we`ve had as a country with impeachment to try to extrapolate and learn from that. 

And in 1974, at the time the Watergate Committee was working on this, there was only that one previous example of impeachment, they discuss that at length, to flush out the historical record to give them more to go on in terms of American history, they also run through a whole bunch of the other impeachments that we have been through as a country.  In fact, I think they run through all of them, including ones that I bet you nobody ever remembered until the Watergate committee the to put together this constitutional report and look at all of the other times we`d ever impeached any sort of U.S. official. 

And they do this exhaustive list including definitely stuff you didn`t remember like, you know, some judge in 1873 who had impeachment proceedings brought against him because, quote, his personal habits unfitted him for the judicial office in that he was intoxicated both off the bench as well as on the bench.  Ah, yes, the famous drunk judge case of 1873.  How can we forget? 

Or there`s the secretary of war case from 1876 where the secretary of war at the time was accused of, quote, basically prostituting his high office to his lust for private gain.  See how they balanced prostituting and lust there?  Pretty good, right? 

Essentially that purple prose was about him taking bribes to give people at various jobs.  The report notes that the secretary of war in 1876 though charged with these things and in the end seems to have escaped impeachment mostly because he resigned before they could get to him. 

So they run through all of the impeachments that we`ve been through so that the impeachment committee looking at or the investigative committee looking at the Watergate scandal knew essentially how they`d fit into history.  This is at the outset of the Nixon impeachment process and Watergate scandal, 1974.  They took a time out from just looking at the fact pattern around what Nixon had done to take some time to review historically the constitutional grounds for presidential impeachment and that included looking at the sort of exhaustive record of the country`s whole record of experience with impeachment.  It`s fascinating stuff.  And I`m telling you, it holds up. 

Similarly, when President Clinton was facing impeachment proceedings in 1998, in November of that year just before Thanksgiving, 1998, the judiciary committee in the house also decided that they should try to cover some of those same bases that were covered by the Watergate committee, the constitutional grounds for impeachment.  And in the Clinton impeachment, though, in the `90s they decided they wouldn`t approach this issue just by doing a report on it the way the committee did in Watergate.  They instead decided they`d convene a public hearing on the matter much like the one we had today. 

And because time is a circle and dogs chase their own tails and no one is very imaginative in Washington, not one but two of the witnesses who were brought in to opine on the constitutional grounds for impeachment in the Clinton impeachment hearings in 1998, not one but two of them were the same witnesses -- the actual same men who were brought forward today to opine on the constitutional grounds for impeachment of President Trump. 

One of the guys who was testifying in the Clinton constitutional grounds for impeachment hearing in 1998 was Michael Gerhardt, constitutional law professor, who was with College of William & Mary back.  He`s now a law professor at the University of North Carolina.  But it is the same guy.  21 years between his two appearances at impeachment hearings. 

The Clinton impeachment hearing on the constitutional grounds for impeachment also featured testimony from another witness who we heard from today.  Then and now, George Washington University law professor, Jonathan Turley. 

(BEGIN VIDEO CLIP)

JONATHAN TURLEY, GORGE WASHINGTON UNIVERSITY LAW PROFESSOR:  If you decide that certain acts do not rise to impeachable offenses, you will expand the space for executive conduct, and we will have to live with that expansion. 

(END VIDEO CLIP)

MADDOW:  That was the 1990s iteration of respected constitutional law professor Jonathan Turley arguing in the context then of the Clinton impeachment that President Clinton must be impeached otherwise every president will try to get away with this kind of stuff. 

Today, of course, we saw the same professor, Jonathan Turley, arguing just as emphatically that right now we don`t have to worry about those same things, that there`s no real risk that President Trump`s behavior might legitimize future presidential misconduct if it is left unpunished.  He did not argue that today the way he did in the Clinton impeachment.  Today, to the contrary, he argued the real risk is in impeaching president Trump, and that the House should not rush into that because that`s such a big scary thing to do. 

And professor Turley isn`t himself the subject of these proceedings, him changing his mind on this stuff over time is like an interesting thing to note about him as a congressional witness.  It`s not particularly material to what we are facing in terms of this decision for the Congress and the country.  But seeing professor Turley and seeing Michael Gerhardt, seeing them both testifying at both of these impeachment hearings for Clinton in `98 and for Trump today, recognizing that the report of the Watergate committee that came in February 1974 was on this same subject, the constitutional grounds for impeachment, it`s kind of a good reminder I think that this is part and parcel how we as a country approach presidential impeachments at least in the modern era. 

There does have to be a reckoning what the Constitution says impeachment is for.  And considering the impeachment of any particular president rightfully involves a robust discussion and a robust argument that as to whether the president`s behavior that is under scrutiny is the kind of thing that rises to the level of what impeachment is supposed to fix.  That`s why we do hearings like this.  That`s why we do hearings like we saw today.  That`s why they did this report in `74.  That`s why we did an impeachment hearing just look today`s in 1998. 

This is one of the steps we have to go through.  And it turns out in the modern era, this is one of the steps we do go through.  I will note, though, even if you brought in a lens not just to look at the impeachments of presidents but all the impeachments we have done as a country, it`s still a really short list.  I mean, yes, you know, there`s -- it`s just this very finite experience with have with this as a country. 

When that Watergate report came out in 1974 included that appendix listing all of the impeachments, yes, it lists the poor drunk judge in 1873 and the hapless war secretary that gets caught taking tons of bribes and has to resign so he won`t get in trouble.  I mean, that appendix in the Watergate report in 1974, that was the full history of impeachment in this country.  There`s not that many of them.  And a lot of them are for small fries who got caught for doing small thing. 

In the modern era there is one relatively recent impeachment case that turns out to be a weirdly perfect precedent for what happened today in the impeachment proceedings against Trump.  So perfect that I kind of can`t believe it`s real.  I kind of feel somebody must have gone back with a time machine and doctored history in order to make this perfect for us today. 

But it did really happen.  We`ve got tape of it.  It was real.  It was the impeachment of a federal judge, a federal district court judge in Louisiana in 2010.  His name was Judge G. Thomas Porteous, he`s been a state judge in Louisiana.  And then in 1994, President Clinton had appointed him to be a federal judge. 

But an FBI investigation soon revealed that Judge Porteous was totally on the take.  He was frequently taking money from lawyers and people like bail bondsman who had cases and clients in his courtroom.  He was taking money from those people while he was hearing their cases.  He was hearing their client`s cases. 

Now, usually if there`s an FBI investigation like that and a scandal gets exposed, you`d expect a resignation, you might expect an effort in the judiciary to handle this matter and get this guy out of there.  But Judge Porteous was totally unrepentant.  And so, it became a matter for Congress to force him out of his federal judgeship.

And the House of Representatives took the matter up in 2010.  They ultimately voted to impeach Judge Porteous, but getting impeached in the house is not enough to remove him from office, right? 

The way impeachment works it works the same for a judge as it does for a president.  After you get impeached in the House, you then have to put him on trial before the United States Senate, where the entire Senate becomes essentially the jurors in his trial. 

And on December 8th, 2010, the United States Senate in open hearings, they held a Senate trial to decide whether George Porteous should be convicted on these articles of impeachment and removed from the federal bench.  And because it`s a trial, the accused, of course, is allowed to have legal representation.  George Porteous in 2010 picked himself a very well respected, very well-spoken, very well-connected lawyer to be his defense lawyer, to be his defense counsel in that trial in the Senate. 

And despite all the good things I can say about that defense counsel, the defense of Judge Porteous in that impeachment trial did not go well.  I`ll show you what I mean.  What you will see here is the defense lawyer for Judge Porteous who is a person you will recognize, and you will see the prosecutor in this case. 

Remember, after the House impeaches somebody -- in the House of Representatives, that`s where they draw out the articles of impeachment and vote whether or not they`re going to impeach somebody.  But then when the goes to moving from the House over to the Senate for the trial -- well, it turns out it`s members of Congress, its the impeachment managers from the house, the people who oversaw the process of bringing articles of impeachment against the federal official who oversaw the process of them getting impeached in the House on the basis of those articles, the impeachment managers from the house, the actual members of Congress come over to the Senate and they act as the prosecutors in the impeachment trial. 

So this is from George Porteous` impeachment trial in the Senate.  Watch who Judge Porteous` defense lawyer is here and watch who the prosecutor is who`s leading the case against him. 

(BEGIN VIDEO CLIP)

TURLEY:  Now, it`s true the House has portrayed Judge Porteous, frankly, is something of a moocher.  Let me ask you, did you ever think that you would be sitting here on the floor of the Senate trying to decide whether that`s an impeachable offense, being a moocher?  He paid for a few lunches, didn`t pay for most of them, and the witnesses said that lunches in Gretna routinely had lunches paid for them. 

(END VIDEO CLIP)

MADDOW:  Judges in Gretna, in Gretna, Louisiana, routinely had lunches paid for them.  That was a normal thing there.  He went onto say some of the men and women who donned these robes have frailties and weaknesses. 

He said this is going to happen again.  Judges will have bankruptcy problems because one of the things Judge Porteous got caught for was lying in his personal bankruptcy filings about his financial matters in part because he`s been taking lots of bribes, and that`s a very awkward thing to declare in your bankruptcy filings.  He says this is going to happen again.  Judges will have bankruptcy problems. 

They only look inviolate in those robes.  We elevate them in the courtroom but beneath those robes they are human beings and some of them have problems and some of them make mistakes.  But they shouldn`t end up here on the Senate floor debating whether he was a moocher, or whether he paid for enough lunches.

So, that`s the defense for Judge Porteous.  And you recognized the defense counsel there, right?  That is Jonathan Turley who you saw today at President Trump`s impeachment hearing.

So, that -- Jonathan Turley is Judge Porteous` defense counsel in the impeachment case.  Watch who the prosecutor was in that case. 

(BEGIN VIDEO CLIP)

ADAM SCHIFF, THEN PROSECUTOR:  Counsel makes the suggestion here again well he`s really being charged with being a moocher.  He`s being charged with having free lunches. 

This is not about whether the judge is a moocher or had too many free lunches.  This is about getting money from attorneys.  This is about setting bonds not with a public interest in mind but to maximize the profit of a bail bondsman and get a lot of gifts and favors and trips and car repairs and everything else out of it. 

To give them one example, it is uncontested that George Porteous solicited and received $2,000 cash secretly from an attorney and his partner while that attorney`s case was under submission.  Judge Porteous himself admits this before the fifth circuit.  The judge called it a loan that he never paid back. 

But his counsel has taken to calling it a wedding gift, as if it were a piece of China from the pottery barn.  Significantly, no one other than defense counsel has ever called this cash a wedding gift.  Not a motto and clearly (ph) who paid it, not the secretary who delivered it, and not even the judge himself. 

This is at best the defense counsel at his most creative. 

(END VIDEO CLIP)

MADDOW:  The judge took $2,000 in cash secretly from a judge -- excuse me - - from a lawyer whose client was being tried in Judge Porteous` courtroom.  He asked for 2 grand, was given 2 grand cash by a lawyer whose client was having his case in the courtroom. 

And the judge`s defense counsel, Jonathan Turley, described that as a wedding gift.  And the prosecutor in that case against Judge Porteous in the impeachment trial of Judge Porteous makes short work of that.  This is at best defense counsel at his most creative.  And the prosecutor there of course was Congressman Adam Schiff.  He was the impeachment manager in the impeachment of Judge G. Thomas Porteous in 2010. 

It was him squaring off against Porteous defense lawyer, Jonathan Turley -- the same Jonathan Turley who effectively functioned as President Trump`s defense lawyer in President Trump`s impeachment hearing today. 

And these of course are different cases.  And nobody is alleging that President Trump took $2,000 from a lawyer before he ruled in that lawyer`s favor in his case the way Judge Porteous did.  But that was the last impeachment proceeding we`ve had as a country, right? 

The last impeachment proceeding I believe that we had in the U.S. Senate, right, it was Bill Clinton`s impeachment trial in the late `90s, and then there was the Judge Porteous impeachment trial.  Those were the last ones we had.  And that one did not end well for Jonathan Turley and his client Judge Porteous.

That House brought four articles of impeachment against Judge Porteous.  The Senate voted to convict the judge on all four articles of impeachment including one of them where they got a 96-0.  To put an additional nail in the coffin after they convicted him on those four articles of impeachment and agreed to remove him from the federal bench, they then added a fifth vote in the Senate where they made clear in addition to those four articles of impeachment, not only were they removing him from office now, they were removing him from any office now and forever.  They added a fifth vote specifically to say that Judge Porteous was, quote, forever disqualified to hold and enjoy any office of honor, trust or profit under the United States.

It turns out the he`s just a moocher argument was not enough to carry the day however well-put that argument was. 

And so as I mentioned, we have not had a particularly long list of examples to build on and learn from in this country in terms of impeachment, but apparently, we go back to the same people over and over again as long as they`re still alive whenever we need to keep talking about these things, whenever we`ve got impeachment questions.  And for us citizens watching this unfold and thinking about the weight of all of this for our republic and for our government and for this country that we love, at least from my perspective, even as they are bringing back the same witnesses again and again, it is sort of satisfying and grounding and occasionally quite an illuminating thing that this is how we do it. 

That as part of the impeachment process, yes, we look at the facts of what the U.S. official or the president reportedly did, and we nail that down, but we also take this time as we did today to basically do a national public constitutional law class on who we are and what we stand for and why we`re setup this way as a country and how important this all is. 

(BEGIN VIDEO CLIP)

NORM EISEN, DEMOCRATS` COUNSEL:  And so we have constitutional bribery here, the high crime and misdemeanor of constitutional bribery against President Trump. 

PROF. PAMELA S. KARLAN:  If you conclude that he asked for the investigation of Vice President Biden and his son for political reasons, that is to aid his re-election, then, yes, you have bribery here. 

PROF. MICHAEL GERHARDT:  I just want to stress that if this -- if what we`re talking about is not impeachable, then nothing is impeachable.  This is precisely the misconduct that the framers created a Constitution, including impeachment to protect against. 

And if there`s no action, if Congress concludes they`re going to give a pass to the president here, as professor Karlan suggested earlier, every other president will say, OK, I can do the same thing and the boundaries will just evaporate.  And those boundaries are setup by the constitution, and we may be witnessing, unfortunately, their erosion.  And that is a danger to all of us. 

EISEN:  Professor Feldman, you were somewhat of an impeachment skeptic at the time of the release of the Mueller report, were you not? 

PROF. NOAH FELDMAN, HARVARD LAW SCHOOL PROFESSOR:  I was. 

EISEN:  What`s changed for you, sir? 

FELDMAN:  What changed for me was the revelation of the July 25th call, and then the evidence that emerged subsequently of the president of the United States in a format where he was heard by others and now known to the public, openly abused his office by seeking a personal advantage in order to get himself re-elected and act against the national security of the United States.  And that is precisely the situation that the Framers anticipated. 

KARLAN:  What happened in 2016 was bad enough.  There is widespread agreement that Russian operatives intervened to manipulate our political process.  But that distortion is magnified if a sitting president abuses the powers of his office actually to invite foreign intervention. 

To see why, imagine living in a part of Louisiana or Texas that`s prone to devastating hurricanes and flooding.  What would you think if you lived there and your governor asks for a meeting with the president to discuss getting disaster aid that Congress has provided for?  What would you think if that president said I would like you to -- I would like you to do us a favor?  I`ll meet with you and I`ll send the disaster relief once you brand my opponent a criminal? 

Wouldn`t you know in your gut that such a president had abused his office, that he betrayed the national interest, and that he was trying to corrupt the electoral process?  I believe that the evidentiary record shows wrongful acts of that scale here. 

(END VIDEO CLIP)

MADDOW:  This first public hearing of the Judiciary Committee in the impeachment proceedings against President Trump, it was kind of a big constitutional law class, right, with three of these four professors from UNC and Harvard Law and Stanford Law arguing emphatically the power of impeachment was put in the Constitution and assigned to Congress the way it was by the framers of our democracy specifically to check and block and potentially remove a president who has done what this impeachment inquiry shows President Trump has done. 

The Republican witness, Professor Turley, who we have seen pop up in the Clinton impeachment saying President Clinton must be impeached and in the Judge Porteous impeachment where he amazingly was the guy saying actually it`s no big deal, this guy should be left alone, who among us doesn`t expect that a judge should take thousands of dollars from a case in his courtroom, Professor Turley was there arguing on behalf of the Republican members of committee that in this case of president Trump there`s no rush.  Not everything president Trump did has been fully explored, allow this to sift through the courts for a while yet.  What`s the hurry? 

So having these four learned law professors argue about the constitutional basis for impeachment today, this is part of how we handle impeachment as a country.  And members of the committee fought with each other today and fought with the witnesses and stretched this thing out for over eight hours.  But ultimately, the way this is supposed to work is that all the members of the committee, blue and red, Republican and Democrat, they`re all supposed to be left now grappling with their constitutional responsibilities and the now very, very real pertinent question of how exactly they should discharge them. 

Two members of that committee will join us when we come back. 

Stay with us. 

(BEGIN VIDEO CLIP)

KARLAN:  Well, if you conclude that as I think the evidence to this point shows that the president is soliciting foreign involvement in our election, you need to act now to prevent foreign interference in the next election like the one we had in the past. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REP. PRAMILA JAYAPAL (D-WA):  Given all of these facts and there are more that we don`t have time to get to, how would you assess the credibility of the president`s claim that he was worried about corruption? 

KARLAN:  Well, I think you ought to make that credibility determination because you have the sole power of impeachment.  If I were a member of the House of Representatives, I would infer from this that he was doing it for political reasons. 

REP. ERIC SWALWELL (D-CA):  You`ve said that this case represents a dramatic turning point in federal impeachment precedent, the impact of which will shape and determine future cases.  The House for the first time in the modern area -- modern era asks the Senate to remove someone for conduct of which he was never charged criminally and the impropriety of which has never been tested in the court of law. 

But that`s actually not a direct quote from what you said today.  It sounds a lot like what you`ve argued today that that`s a quote from what you argued as a defense lawyer in a 2010 Senate impeachment trial. 

Professor, did you represent Federal Judge Thomas Porteous? 

TURLEY:  I did, indeed. 

SWALWELL:  And Judge Porteous was tried on four articles of impeachment ranging from engaging in a pattern of conduct that is incompatible with the trust and confidence placed in him as a federal judge, to engaging in a long-standing corrupt conduct that he`s unfit to serve as United States District Court judge.  On each count, Judge Porteous was convicted by at least 68 and up to 96 bipartisan senators.  Thankfully, that Senate did not buy your argument that a federal official should not be removed if he`s not charged criminally.  And respectfully, Professor, we don`t buy it either. 

(END VIDEO CLIP)

MADDOW:  Congressman Eric Swalwell and Congresswoman Pramila Jayapal, today`s first formal impeachment hearings before the House Judiciary Committee.  It has been a long, long day on the Judiciary Committee but Representatives Jayapal and Swalwell join us now straight out of those hearings. 

Thank you both for being here tonight.  I`m sure there are lots of places you`d both rather be, many of which might involve an easy chair.  Thanks for making time. 

JAYAPAL:  Thank you. 

MADDOW:  Let me ask you both this first question.  It`s actually about a little bit of breaking news.  CNN is reporting this evening that your committee might be announcing as soon as tonight what comes next -- next impeachment hearings maybe as soon as next week. 

Can either of you speak to that at all? 

JAYAPAL:  Well, I think what we know is that we will have presentations from the Intel Committee, both the majority and the minority will have the opportunity to come and testify before us, and that should probably be early next week, and then we really have to sit and decide exactly where we`re going from there. 

MADDOW:  In terms of that presentation from the Intel Committee, obviously, you`ve received their written report. 

Congressman Swalwell, did you expect that presentation to be something that we the public will be allowed to see or is that going to be a closed door proceeding? 

SWALWELL:  We want all of this to be open.  And what`s really remarkable about that presentation is it will show with limited witnesses, only 12 that courageously came forward and limited documents, 72 requests to the White House, they gave us zero that we were able to produce powerful evidence, clear evidence, uncontradictory evidence the president used his office to ask a foreign government to help him cheat an election. 

And we will show that had we had so many of these other documents, that that would have only added to the evidence.  There`s no evidence here that there`s anything that would clear the president. 

MADDOW:  Congresswoman Jayapal, I wanted to ask you about sort of the two things that we the public were able to see today and just ask you what your perspective on what the value of those two things was.  Obviously, we got the expert testimony about the constitutional basis for impeachment both in terms of opening statements from these experts but also the back and forth all day long. 

But then we also saw a lot of fighting.  And we saw the Republican members of the committee taking a diametrically opposed approach both to the witnesses and to the content today.  I wonder how -- if both of those things have value, if only one of those things have value to you, what you thought about the overall balance of what you and the public got from this today. 

JAYAPAL:  Well, I actually thought that the Republicans didn`t create as much chaos as I was expecting them to create, but I think at the end of the day, there were two things that stood out to me today.  One of them was as Eric said, the tremendous amount of facts that we have on the table, uncontested facts. 

The Republicans really did not try to contest any of those facts.  They went to process.  Maybe here and there they contested one or two things that were on the table.  But this is remarkable amount of evidence given that the president obstructed us at every step of the way.  So that was one thing. 

And then the second was the gravity of the moment, the gravity of what we are debating.  And I was struck by Professor Feldman`s quote when he said, if we do not impeach a president for abuse of power, then we are no longer a democracy, we are a monarchy or we are dictatorship.  That is what we`re talking about, the sanctity of our elections. 

MADDOW:  And on that issue of abuse of power and let me direct this to Congressman Swalwell in part you are on the Intelligence Committee and so you were part of the production of the documentary record that has been produced by the intelligence committee and that`s the basis here.  But also, you were a key part of the Intelligence Committee and its investigation into the Russia matter that produced the Mueller report among other things. 

Do you expect that some of the abuse of power and obstruction of justice that was alleged in Mueller`s report in the Russia -- around the Russia investigation, do you expect that stuff will be folded into any articles considered against President Trump now?  Are those internal discussions happening among members of your committee right now as to whether or not that stuff will carry over into these articles? 

SWALWELL:  We`re considering all the president`s conduct, but it will certainly be used to explain his intent.  Meaning he has priors.  He invited a foreign government in the past to involve itself in our elections, and when he made that statement, Russia if you`re listening, that very day, Russia was listening, and they sought to hack Hillary Clinton`s server and e-mails. 

And now he`s asked the Ukrainians to involve themselves in our elections and investigate a potential political opponent.  So it shows prior conduct.  Whether it is used as well as the obstruction of the Russia investigation, whether it`s used or not, is something we are considering. 

But every day in America`s courtrooms, jurors are told that you can use someone`s past conduct to deduce what their intent is today for what they`re being charged with, and that certainly will be the case with this president. 

MADDOW:  Congresswoman Jayapal, let me just ask you to weigh in on that as well before you I let you go in terms of how wide you think the aperture should be here and whether you agree with Congressman Swalwell that essentially the president`s behavior, as documented in the Russia investigation, should sort of be seen as his priors, and therefore as a relevant reference point for explaining his current behavior?

JAYAPAL:  Well, I do because I think the pattern we are seeing and particularly for those of us that were on the Judiciary Committee, read the Mueller report multiple times, you know, were involved in some of the hearings around the Mueller report with Bob Mueller himself, I think what we are seeing is a pattern.  And I think that`s very important because one committing the crime of bribery or abuse of power is sufficient, let me be clear.  But when you have multiple events that show the same pattern, it poses an even greater threat to leaving this president to abuse his office in this way. 

So I absolutely do agree.  Everything`s -- you know, nothing has been decided.  I think we still have to look at all the evidence that comes in and really evaluate exactly how we want to move forward and if we want to move forward with articles, and we have to debate what those are. 

MADDOW:  Representatives Pramila Jayapal and Eric Swalwell, both from the Judiciary Committee, we very rarely put two people on TV at once let alone in the same shot, but I really wanted to talk to you both about this.  So I really appreciate you making time after such a long day.  Thank you so much. 

JAYAPAL:  Thanks, Rachel.

SWALWELL:  My pleasure.

MADDOW:  More ahead.  Stay with us. 

(COMMERCIAL BREAK)

MADDOW:  In August of this year, on a beautiful sunny day in broad daylight, a man on a bicycle wearing a wig rode through a quiet Berlin park in Berlin, in Germany, and he shot a man in that park.  He shot him once in the torso and twice in the head. 

The man who was murdered in that park that day was a 40-year-old recent immigrant to Germany.  Ethnically he was Chechen.  Back in the early 2000s, when the Chechens were fighting a war with Russia, he had helped lead Chechen forces in battle against Russian soldiers.  After the Chechen Russian War, he reportedly helped the government of the nation of Georgia in their counterintelligence efforts against Russia. 

So, needless to say, the Russian government probably didn`t like that guy very much.  The man had been living in the nation of Georgia for several years but after two failed assassination attempts against him there, he fled to Germany to try to stay alive.  And that is where he had been living until they did finally get him, until he was successfully assassinated in that Berlin park this year, August of this year by that man on the bike. 

Well, a few weeks after that former Chechen fighter was killed in Berlin, American officials told "The Wall Street Journal," quote: The United States believes that Russia is responsible for this assassination.  That was back in September. 

Since then, nothing, though, from the U.S. government which a little bit odd, right?  I mean, the U.S. government determines it was Russia, it was the government of Russia that carried out this broad daylight assassination in a foreign country in the capital city of one of our allies in Western Europe, after that determination by the U.S. government, you might expect the U.S. government to do something, right, to have some sort of reaction to that determination, some kind of official government outcry? 

Apparently not.  This is all we have.  Anonymous officials leaking the news to "The Wall Street Journal" that the U.S. government knows it was Russia. 

The official response from the White House to that Russian assassination has been total silence.  That silence got even more conspicuous today when German officials announced they too have determined in their government that Russia was behind the assassination of that 40-year-old Chechen guy on German soil. 

But unlike the United States, which has similarly made that determination but done nothing in response to that, Germany today decided they would do something about it.  Germany today expelled Russian diplomats out of Germany to punish Russia for having sent operatives to carry out that assassination in their capital city. 

In the wake of that action today, still even with Germany effectively backing up the American assessment that Russia did it, that Russia carried out yet another assassination on foreign soil, still today, total crickets from our government.  And needless to say total inaction, not so much as a word from the White House.  Why is that? 

Hold that thought. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REX TILLERSON, FORMER U.S. SECRETARY OF STATE:  The action by the Congress to put these sanctions in place in the way they did, neither the president nor I are very happy about that.  We were clear that we didn`t think it was going to be helpful to our efforts.  But that`s the decision they made. 

(END VIDEO CLIP)

MADDOW:  That was then Secretary of State Rex Tillerson in August 2017, announcing his profound displeasure at the fact that Congress had voted to impose sanctions against Russia for them interfering in our 2016 presidential election. 

Despite his profound displeasure about it, not only did that bill sanction Russia, it prohibited President Trump from waiving or reducing those sanctions himself without first getting overt permission from Congress to do so.  So, that was a sanctions bill that had some real teeth to it.  And what makes that vote all the more remarkable now looking back at it is the margin by which that tough sanctions bill against Russia passed the Congress in 2017.  It passed the House by a vote of 419-3.  That was just two years ago in 2017.

Well, this week, the House of Representatives held another vote on Russia.  And this follows President Trump repeatedly insisting in recent weeks and months that Russia should get back into the G-7.  Russia got kicked out of the G-7 when they invaded Ukraine and took a part of Ukraine that`s called Crimea for themselves, made it part of Russia. 

That state of affairs of course still stands.  That hasn`t gotten any better, but President Trump has nevertheless advocated that Russia should be allowed back into the G-7 anyway.  You know, forgive and forget. 

Who cares what they did?  Screw Ukraine.  Let`s let Russia and Vladimir Putin off the hook.  And you might expect that from President Trump. 

Yesterday, the House of Representatives voted on a resolution disapproving any readmission of Russia back into the G-7.  Now, again, just two years ago, Republicans in the House were basically unanimously willing to break with President Trump in order to stand up against Russia.  And so, you might expect despite them supporting lots of other things, you might expect House Republicans to once again overwhelmingly support such a measure. 

No, Russia`s not getting back in to G-7.  They still took Ukraine.  They`re still occupying Ukraine.  They -- you might expect that. 

You would be wrong.  There apparently has been a major shift on this subject among Republicans in Congress.  This week, that resolution of disapproval, 71 Republicans voted against it.  Apparently 71 Republican members of Congress now think Russia invading and taking parts of Ukraine for itself is fine. 

Joining us now is Senator Chris Murphy of Connecticut.  He`s member of the Foreign Relations Committee, as well as Appropriations Committee.

Sir, thanks for making time to be here tonight.  I really appreciate it. 

SEN. CHRIS MURPHY (D-CT):  Thanks for having me. 

MADDOW:  So, there`s a bunch of things in the world I wanted to ask you about.  But let me start with this resolution of disapproval and this shift of dozens of members, dozens of Republicans members of Congress who previously had been willing to vote against the president, vote to sanction Russian, vote to be tough on Russia, now saying, you know what, let Putin back into the G-7 if that`s what the president wants. 

What do you make of that? 

MURPHY:  Yes, it is a radical shift in congressional Republicans` stance on the Trump positioning on Russia.  Trump`s been way out of the main stream for a long time.  But at least for the first couple of years, congressional Republicans were trying to reign him back in.  They aren`t any longer. 

And, you know, I guess you can come up with a couple of different theories of the case.  First, there`s no way to unwind the president`s backwards strategy on Russia with the current scandal in Ukraine.  Everything the president has done to weaken Ukraine has strengthened Russia.  And so, it may be Republicans are circling the wagons right now on Ukraine and Russia.  And in order to defend what the president has done with respect to his corruption in Ukraine, they feel like they also now have to defend him with respect to what he`s doing in Russia. 

But there`s a second element here, which is that we`re getting closer to the 2020 election, and what we know is that Russia has designs to get Donald Trump re-elected, and they are going to try to carry out much of the same kinds of interference in 2020 that they did in 2016, and they may accrue -- it will accrue in fact to the benefit of Republicans up and down the ballot. 

And so, you wonder if this new softness from Republicans who it comes to Russian policy from the Trump administration has to do with their maybe quiet excitement about what Russian interference may mean for their electoral prospects. 

MADDOW:  Given how hawkish the Republican Party has historically been on Russia, even in the Trump era, to a point, do you think that there is at least tension among the Republican caucus in the Senate or in the House as far as you can tell around this transition?  I mean, this is transformation that they`re making clearly that may have self-interests, that may have partisan interests at heart.  But presumably it does feel like petting the cat the wrong way for some of these members. 

Do you sense attention there? 

MURPHY:  Well, there certainly is in the senate.  There remains a large block of Republican senators that are deeply uncomfortable with the way Trump has sort of given away everything that`s been asked of him by Vladimir Putin.  And, you know, of course, you can`t let Russia back into the G-7.  I mean, this is one of the few levers that we have to try to get Russia to understand that they are not going to have normalized relations with the West unless they get out of Crimea and eastern Ukraine. 

And this is really a critical moment because we are coming up on another diplomatic summit between Russia, Ukraine and Europe to try to get back on a path to push the Russians and their proxies out of eastern Ukraine at the very least.  And so, this is the moment where we needed Republicans to stand with us and tell Russia that if you do actually get on a glide path out of Ukraine, that there is a way to get back into the G-7. 

But instead, Republicans are telegraphing that Russia might get away with this and get back into the G-7 without finding some pathway to success at this upcoming summit. 

MADDOW:  Senator, there`s one other thing I want to ask you about.  There`s something just reported on "The Washington Post" that I find super disturbing, frankly, involving the president`s trip to the NATO summit. 

I ask you to hold on for the break and I`ll ask you about when we come back if you can stay. 

MURPHY:  OK.

MADDOW:  All right.  We`ll be right back with Senator Murphy right after this. 

(COMMERCIAL BREAK)

MADDOW:  We`re back with Senator Chris Murphy. 

Sir, thanks very much for holding for us there for a second. 

Let me ask you about something just reported in "The Washington Post" about President Trump`s trip to the U.K., to the NATO summit from which he`s just returning from tonight as we speak.  According to "The Post" today, quote, several leaders entered the formal NATO meeting on Wednesday with strategies inside their thick briefing books about what to do if Trump threatens to quit NATO on the spot. 

"The Post" effectively reporting that other NATO leaders, not just idly worried about but actively prepared for the prospect that President Trump was going to withdraw the United States from NATO this week and surprise them all with that. 

Do you think they were right to be worried about that possibility? 

MURPHY:  They are right to be worried about that possibility because we have seen the president make these radical about-faces on major foreign policy matters without consulting anyone internal to his administration or external. 

I think everybody watched what happened in Syria when the president pulled us out, abandoned our Kurdish partners and scrambled the entire political dynamic and security dynamic inside Syria and are wondering what`s next.  And in fact it`s not just European leaders making these alternative plans, that are scheming how to avoid catastrophe, it`s our own military, right?  There are reports our own military are making plans to evacuate Afghanistan because they worry they`re going to wake up on a Tuesday morning and Trump is going to deliver an order to move thousands of American personnel out of that theater. 

And so I think in the wake of the decision in Syria, both foreign leaders and domestic security professionals are getting ready for the worst.  And, of course, that just portrays unbelievable weakness.  No one wants to partner with the United States in any new endeavors because they don`t know if the president`s commitment is good from one day or one week to the next.  It`s an absolute foreign policy disaster. 

MADDOW:  Senator Chris Murphy of Connecticut, sir, thanks for your time tonight.  Good to have you here. 

MURPHY:  Thanks.

MADDOW:  We`ll be right back.  Stay with us. 

(COMMERCIAL BREAK)

MADDOW:  After today`s marathon impeachment hearing in the Judiciary Committee, we still await word from the committee as to whether or not they are planning to do another public hearing in short order.  We have been advised that it`s possible we could hear that as soon as tonight but so far nothing yet. 

That does it for us tonight.  We will see you again tomorrow. 

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

Good evening, Lawrence.

                                                                                                                THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END