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Transcript: The Rachel Maddow Show, 5/11/22

Guests: Alexis McGill Johnson, Kenji Yoshino, Chris Murphy


Senate Republicans and Sen. Joe Manchin (D-WV) block Democrats` attempt to codify abortion access. Interview with Sen. Chris Murphy (D-CT). MSNBC`s continuing coverage of the Russian invasion of Ukraine.


CHARLES BLOW, MSNBC POLITICAL ANALYST: Five of the nine are there because of people who didn`t even win the popular vote.


They are pushing for an agenda that doesn`t respect the president in the way -- even some of them said before Congress, that they will respect. So there is nothing to stop it.

This is indeed an invasion of privacy issue, at least for the courts, on abortion. There are a lot of other decisions that are based on the position of privacy. What stops the court from pulling back?

AYMAN MOHYELDIN, MSNBC HOST: That`s exactly the question I think is on everyone`s mind as the story continues to develop.

Charles Blow, Michelle Goldberg, thank you very much. We greatly appreciated your insights.

That is ALL IN on this Wednesday night. I`m Ayman Mohyeldin in New York. Don`t forget to catch me on the weekends, on Saturdays, 8:00 p.m. Eastern, Sundays at nine.

"MSNBC PRIME" time starts with my good friend, Ali Velshi.

Good evening, Ali.

ALI VELSHI, MSNBC HOST: Good to see you, my friend. You have a great evening, and we`ll see you again tomorrow.

And thanks to you at home for joining us this hour. The winner of the 2016 presidential election was, as we know, Donald Trump. But you will recall that while he won the Electoral College, he did not win the popular vote. And in fact, in the days and weeks after election day, the margin of his popular vote loss kept growing.

Do you remember this? Every day, every week, Hillary Clinton`s lead in the popular vote kept increasing. It was one and a half million. It was 1.7 million. It was 2 million. Ultimately, Hillary Clinton would win the popular vote by nearly 2.9 million votes.

And the reason for this was California. You see, California famously takes a very long time to tally all its ballots because there are a lot of ballots there for one thing. And as they counted their ballots, Hillary Clinton`s popular vote margin kept increasing.

And obviously, this was incredibly annoying to Donald Trump not content to have won the election, he began claiming to have also won the popular vote. If you deducted the millions of people who he claimed illegally voted in California.

Now, obviously, millions of people did not vote illegally in California. Trump did not win the popular vote. But there`s a sort of inarguable logic to the whole claim. Sure, it looks like I lost, but if you throw out the millions of votes from my opponent, poof, I win.

Then Trump supporters took his logic in another possibly even more ridiculous direction. They said, if you just didn`t count California, Trump would have won the popular vote, problem solved. In fact, one conservative talk show host and former Republican congressman tweeted, quote, I know California is a state and I know we have to count it, but if you remove California, Trump won the popular vote by 1.4 million. Case closed, because it`s true. If you remove one-eighth of the American population, then, yeah, Trump definitely won the popular vote in 2016. You just throw out enough of your opponent`s ballots and magic, you win.

In 2016, that strategy was just wishful thinking on the part of Trump and his allies. But in 2020, they actually tried to do it. I know you remember this guy. His name is John Eastman. This is him at President Trump`s rally on January the sixth last year, the one where Trump and his allies riled up the crowd with lies about the election being stolen and then sent them off in the direction of the United States capital.

John Eastman was a lawyer working on Trump`s plan to overturn Joe Biden`s election win. He`s the one who wrote this crazy memo that laid out a step- by-step plan by which Vice President Mike Pence could hand the election to Trump on January the 6th.

That plan in a nutshell was for pence to declare that Biden`s win in seven swing states was disputed, and therefore could not be counted.

Well, emails that were just obtained by "The Denver Post" and published by "Politico" show how John Eastman was trying to lay the groundwork for that plan, how he was trying to create a pretext for Pence to reject Biden`s win in those seven states. What he did was he came up with a magic formula by which those states would just not count a whole bunch of Biden votes, because remember, if you just toss out a whole bunch of your opponent`s votes, voila, you win.

Now, the reason these emails exist is actually kind of funny. In late November of 2020, after the election, remember this, Pennsylvania Republicans hosted Trump lawyer Rudy Giuliani, and his crack election fraud team for a presentation on how the election in Pennsylvania had been stolen from Trump.


The Trump team wanted Pennsylvania Republican legislatures to overturn their state election results and hand the electoral votes to Trump. But a few days later, one of those Republican legislators writes to John Eastman in frustration. He says that he and his Republican colleagues really, really want to overturn the election results but Giuliani`s presentation was so bad, they don`t know how to proceed.

Quote: Honestly, the Trump legal team was not exactly stellar at Pennsylvania`s hearing and failed to provide the affidavits of their witnesses. It is for this reason that I so latched on to your comments that actual fraud is irrelevant when the election itself is unlawful, end quote.

So, this Republican lawmaker in Pennsylvania writing to John Eastman saying, we know in our bones there was tons of fraud and illegal voting but Rudy can`t prove it, so just tell us how we can still overturn the election. And John Eastman obliges. He writes back that the legislature could, quote, simply affirm what appears to have been the results of the popular vote untainted by the illegal votes. Eastman says the Republican legislators could cite their concerns with Pennsylvania`s absentee ballot procedures and then use historical data to, quote, discount each candidate`s totals by a pro-rated amount based on the absentee percentages that those candidates otherwise received.

It continues: Then, having done that math, you`d be left with a significant Trump lead that would bolster the argument for the legislature adopting a state of Trump electors. That would help provide some cover, end quote.

If the Pennsylvania legislature would just create some new numbers showing that Trump actually won, that would provide some cover for the plot to keep him in power, illegally. It`s magic, just toss out a bunch of your opponent`s ballots and you win. Just throw out the fraudulent votes or the illegal votes or you know all the votes from California, it`s foolproof.

But it`s worth remembering that John Eastman was not the only member of team Trump to try this neat trick. You remember the infamous phone call in which Trump himself berated Georgia`s secretary of state pushing him to find just the right number of votes to make Trump the winner in Georgia. But less well remembered is that Republican Senator Lindsey Graham also called Georgia secretary of state after the election and what he allegedly said on that call sounds awfully familiar in light of these new emails from John Eastman.

Georgia`s Secretary of State Brad Raffensperger told "The Washington Post" that Lindsey Graham had called him and asked him whether he could toss out all the mail ballots in certain counties. Quote: Raffensperger said he was stunned that Graham appeared to suggest that he find a way to toss legally cast ballots. Sure looked like he was wanting to go down that road, Raffensperger said.

Graham denied it at the time.


REPORTER: Did you or did you not ask him to throw out votes?

SEN. LINDSEY GRAHAM (R-SC): No, that`s ridiculous. I talked to him about how you verify signatures.

REPORTER: Why is the senator from South Carolina calling the secretary of state in Georgia anyway?

GRAHAM: Because the future of the country hangs in the balance. I`ve talked to Doug Ducey in Arizona. I`ve talked to the people in Nevada. We`ve got contests all over the nation.


VELSHI: Yeah, really, nothing weird at all about the chairman of the Senate judiciary committee calling officials in swing states right after the election asking them whether they are "sure" they counted all the votes right.


BRAD RAFFENSPERGER, GEORGIA SECRETARY OF STATE: Well, he asked that the ballots could be matched back to the voters, and then I got the sense it implied that -- then you could throw those out for any -- really would look at the counties with the highest frequent error of signatures. So that`s -- that`s the impression that I got.

WOLF BLITZER, CNN HOST: I just want to be clear on this, Mr. Secretary. You say Senator Graham wanted you to find ways to get rid of legally cast ballots because CNN asked him about these allegations he denied them. He says that`s ridiculous. His words, that`s ridiculous.

RAFFENSPERGER: Well, just an implication that look hard and see how many ballots you could throw out.


VELSHI: It wasn`t the straightest answer in the world but an implication of look hard and see how many ballots you can throw out. Could it maybe just be just enough ballots for Trump to win? I`m just asking for a friend.

Well, remember that call from Lindsey Graham to the Georgia secretary of state as part of the Fulton County., Georgia district attorney`s investigation into election tampering by Trump and his allies. That Georgia prosecutor just seated a grand jury for that investigation last week.


And today, our show confirmed that the investigation has secured cooperation from multiple Georgia fake electors, who were another key part of the John Eastman scheme to overturn the election. Vice President Pence was supposed to be able to point to these slates of fake Trump electors from the swing states as evidence that the election results were in dispute and then toss out those states votes, because remember, if you cannot earn more votes than your opponent, you can always just toss out their votes until you win. As you can see, we`ve got a lot to get to tonight.

Joining us now is the former United States attorney for the Eastern District of Michigan, Barbara McQuade.

Barbara, thank you for making time to be with us tonight.

Look, this is this one shouldn`t be complicated. I`m sure there are a lot of viewers watching us tonight saying, we already know what the end of this is. We`ve seen a federal judge weigh in on the illegality of John Eastman`s plan. California Federal Judge David Carter wrote back in March: The illegality of the plan was obvious. Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower. It was a coup in search of a legal theory, end quote.

Tell me what you make now given that we`ve all seen that? What do you make of these new Eastman emails?

BARBARA MCQUADE, MSNBC LEGAL ANALYST: Ali, I think this is just more evidence that is taking what was once a fuzzy picture and bringing it into focus. What was this plot? I think we are now seeing what it was. It was an effort to reach out to some of these swing states if you can knock off a couple of them, you can change the outcome of the election and flip the outcome. One of the things that`s challenging to prove in any public corruption case isn`t so much the what happened. Part of it, that part can be relatively easy.

It is the intent. Was there criminal intent to commit a crime here? And I think one of these text messages is so powerful on this, the idea of needing cover using it as cover. That to me is really important, a piece of evidence to show that they knew what they were doing was fraudulent, and that that`s the key to a case like this.

VELSHI: So, I mean, I`m intrigued that you brought that up because that`s what I wanted to ask you about. We`ve got sort of two separate pieces of information here. We`ve got new emails from John Eastman corresponding with a Pennsylvania state legislature in which he says, if you do this or this. You`ll get some cover. If the Georgia secretary of state is to be believed, Lindsey Graham essentially pressured him to toss out valid ballots in Georgia ten days after the election.

How from a legal perspective in your mind do those two things differ or compare?

MCQUADE: Well, I think they suggest to me possibly all part of the same plot. You know, this is again as that fuzzy picture is coming into focus, it seems to me the most logical charge here is a charge called conspiracy to defraud the United States. It makes it a crime for two or more people to agree to try to interfere with the proper functioning of any agency of the government.

And so if it is interfering with the election, we`ve got a number of different people working on different fronts to try to knock off a state here in a state there. And with these swing states if you can flip you know just a couple of them to go from the Biden column to the Trump column that can be the difference in victory on election day.

And so, you know, seeing things like Lindsey Graham`s effort to reach out to Georgia and, by the way, to a secretary of state who`s a member of the Republican Party, not doing himself any political favors by making accusations about people like Lindsey graham. And so, it would -- sings some of some credibility there when he starts saying things like that.

And so you`ve got that effort in Georgia, you`ve got an effort in Pennsylvania, there were some efforts in Michigan. You know, this multi- state effort if you can pick off a couple of them, you may recall there was a quote from Donald Trump Jr. saying we have many paths to victory, and I think these are the things that he was talking about.

We think those in in normal sort of electoral college, what state might go, what county and what might what state might go a certain way. But yeah, this -- this takes on entirely new meaning.

Barbara, good to see you. Thank you for joining us this evening. The former United States Attorney Barbara McQuade.

Today, something pretty remarkable happened in the halls of Congress. A group of protesters marched and demanded that the Senate passed the Women`s Health Protection Act to codify abortion rights. But they weren`t any organized ordinary group. You might actually recognize a few of them. Look.


VELSHI: More on the outcome of that vote, and if past is a guide, staunch anti-abortion messaging may backfire for Republicans. That`s next.



VELSHI: It was nearly 10 years ago, the 2012 election was just around the corner and two shocking words changed everything.


INTERVIEWER: If an abortion could be considered in a case of say a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

TODD AKIN, MISSOURI SENATE CANDIDATE: Well, you know, people always want to try and make that as one of those things. So how do you -- how do you slice this particularly tough sort of ethical question? It seems to me, first of all, from what I understand from doctors, that`s really rare. If it`s a legitimate rape, the female body has ways to try to shut that whole thing down.



VELSHI: Missouri Senate candidate Todd Akin saying that survivors of rape don`t need abortion access, not if it`s a, quote, legitimate rape. It was a key moment of what turned out to be an incredibly bad year for Republicans trying to talk about women`s rights.

A few months later, another Republican Senate candidate responded to a debate question about abortion by saying he thought rape was something god intended to happen.

By the end of the year, none other than Kellyanne Conway was advising Republicans to please stop talking about rape, saying they should consider it a four-letter word. That election did not turn out well for Republicans. They lost the presidential election and several Senate races in conservative states like Indiana, Missouri and North Dakota.

Now, 10 years later, the right to a safe and legal abortion has been imperiled by the Supreme Court and Republicans are on the verge of electing a new slate of candidates who make the 2020 or make the 2012 election look downright quaint. In Missouri, home of the legitimate rape controversy, conservatives are rallying behind a Trump candidate who had to resign from his last job for allegedly coercing a woman into sex and then blackmailing her about it. A candidate who is also facing brand new allegations assault allegations from his ex-wife.

In Indiana, the home of the rape is god`s will fiasco, a man accused of killing his ex-wife just won a local Republican primary from jail.

Trump backed candidates in Georgia and Ohio running for national office trailed by assault allegations from ex-partners and if you`re wondering whether or not elected Republicans have gotten better at talking about things like abortion rights over the last decade -- well, take a look at this.


SEN. STEVE DAINES (R-MT): If you were to take or destroy the eggs of a sea turtle and I said the eggs, not the hatchlings, that`s also apparently the eggs, the criminal penalties are severe, up to a hundred thousand dollar fine and a year in prison. Now, why? Why do we have laws in place that protect the eggs of a sea turtle or the eggs of eagles? Because when you destroy an egg, you`re killing a pre-born baby sea turtle or a pre-born baby eagle.

Yet when it comes to a pre-born human baby, rather than a sea turtle, that baby will be stripped of all protections in all 50 states under the Democrats bill.


VELSHI: Oh, you want to know what I think about abortion. Well, let me tell you, you see women are like sea turtles. That was the Montana Republican Senator Steve Daines on the floor of the actual United States Senate last night with that picture of the sea turtles.

Senator Daines made those comments in anticipation of today`s Senate vote to codify Roe v. Wade into law. The bill needed votes to become law, all 50 Republicans in the Senate voted against it. Forty-nine of the 50 Democrats in the Senate voted in favor of that bill, you don`t really need me to tell you which Democrat voted against it, do you? Right.

The rest of the Democratic Party is already preparing to make that an issue in the November election. But for many women, November may be too late. So what does everybody else do about this?

Joining us now is Alexis McGill Johnson, president and CEO of Planned Parenthood Action Fund.

Alexis, good to see you. Thank you for being here.

Neither you nor many people were surprised by the outcome of that vote. The point there was to get everybody on record and know how they were going to vote. Again, no surprises there.

But what are you thinking now? After this vote, after the symbolic effort to codify abortion protections what happens now?

ALEXIS MCGILL JOHNSON, PLANNED PARENTHOOD PRESIDENT AND CEO: Well, look, in a moment where -- you know, we have been saying the sky is falling, that we thought the court was ready to overturn Roe v. wade and that the Senate had an opportunity to act uh not just once but actually twice to save access to abortion rights. You know, we got incredibly important to support the work here of the Senate under Leader Schumer to make sure that we got every senator on record, so that we can hold them to account and explain to people why they can`t have the rights that they want, the rights that they have been asking for to be protected.

So we thought it was incredibly important and we`re going to keep fighting, right? I mean, we`re going to keep fighting at the national state and local level for access to safe and legal abortion because what we will what we anticipate under this draft opinion is real, is what the opposition is already forecasting either a full-on national six-week ban or further erosions to protecting access to Roe. Not just in the 26 states that are poised to turn to stop access, but essentially the entire country.


VELSHI: So there are -- these 26 states, there are a fewer number of states that have a trigger law which means nothing will would have to happen if Roe is overturned. There are a number of states that have protections in their state constitutions, you know, protecting a woman`s right to vote or a woman`s right to have an abortion and the rights of people who assist in that abortion to not be sued. Is that a direction that that energy should be focused on or is that a very long-term process?

JOHNSON: Look, I think it`s both hand, right? I think that it is incredibly important that we have states that are pushing the boundaries of access that are making sure that they`re doing everything not only to codify the right in their state`s constitutions or in their state legislation, but to also actually to create ways in which that care can be covered within their states through their budgets.

So I think that is incredibly important for a strategy as we need to expand access to care while we lose it. But that`s not a future state, right? Like the idea that the people of Texas and the people of Missouri and the people of Oklahoma will have to travel outside of their states. We`ve already seen what that looks like right now in Texas, which is effectively a poster state with a six-week ban.

And so, you know, when you have opposition, Republicans talking about forecasting essentially, their playbook, which is a nationwide six-week ban, you have to consider the fact that, you know, essentially, we know where they`re going with this. They`re not stopping with just the overturning of Roe, there is -- and returning that to the states, they are trying to outlaw abortion all together in as many states as possible.

VELSHI: Let`s just speak about that practically. There is a -- there are certain amount of logistics involved in any abortion services and obviously, Planned Parenthood and others try to reduce that the obstacles and the logistics. But there are some and when you have traveled to another state, there are more and when you have six-week abortion bans, it becomes that much more complicated because of the amount of time between when a woman finds out she`s pregnant and then -- by which she has to have an abortion.

JOHNSON: Yeah, absolutely. A six-week abortion ban means you`re finding out you know best maybe two weeks after a missed period, right? So that is before many people actually know that they are pregnant, and we have seen a thousand percent increase out of Texas just in the last nine months because of the way SB-8 has structured and created such a chilling effect on abortion provision in the state.

So we know what it looks like already, Ali, right? We know what it means for someone who has to travel a thousand miles and get child care and take time off from work, you know, and, you know, get secured appointment, find a hotel room you know pay for, you know, six dollar gas to drive that thousand miles, like all of those things are additional burdens that -- that that add up and layer up to someone being able to get the care.

You know, an abortion is healthcare, right? So the idea that you can be living in a state that you are where you`re free essentially in a state where you are denied the very basic equality that one would expect being free even is just unconscionable.

VELSHI: Basic equality. Alexis McGill Johnson, thanks for joining us tonight. Alexis is the president and CEO of Planned Parenthood Action Fund. We thank you for your time.

JOHNSON: Thank you.

VELSHI: Well, up next, the latest leak from the Supreme Court. Yes, another one. We`re going to tell you what it`s all about. Constitutional scholar Kenji Yoshino joins us after this.



VELSHI: Last week, the whole country was shaken by the unauthorized publication of Justice Alito`s draft opinion signaling that five justices were prepared to overturn Roe v. Wade. But in the wake of that leak, many Supreme Court watchers noted that information had already started coming out of the court a week prior, specifically they pointed to this piece published by "The Wall Street Journal" editorial board on April 26 that seemed to foreshadow the direction in which the court was moving.

Quote: Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn`t violate Casey`s test of whether there`s an undue burden on the ability to obtain an abortion. If he pulls another justice to his side, he could write the plurality opinion that controls in its - decision. If he can, then Justice Thomas would have signed the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment. The justices can change their mind. That`s what the chief did in the Obamacare case in 2012, much to the dismay of other conservatives. Roberts may be trying to turn another justice now, end quote.

Now, that was written a week before the draft opinion leaked. Then hours after the draft opinion leaked itself, CNN that very same night reported very specific details about John Roberts`s position. Quote: Chief Justice John Roberts did not want to completely overturn Roe v. Wade meaning, he would have dissented from part of Alito`s draft opinion. Roberts is willing however to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy.

Now, days later, we saw yet another leak when "The Washington Post" reported information based on private discussions inside the court, quote, a person close to the most conservative members of the court said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now.


But the other conservatives were more interested in an opinion that overturned the precedence, the person said. Now, today, "Politico" reports that Justice Alito`s leaked draft opinion from February is the only opinion that circulated inside the court so far. It reports the liberal justices have yet to circulate a dissent, and there`s no new revised majority decision.

What we have seen is it so far and it is still the majority decision. Quote: None of the conservative justices who initially sided with Alito have to date switched their votes.

That is just the latest leak from the court as it prepares to deliver its final opinion before the July summer break. This succession of leaks combined with the substance of the opinion itself has created a firestorm of controversy around the court, physically embodied by the eight-foot high non-scalable fence surrounding the building now and the groups of protesters outside some justices` homes.

Tomorrow, the nine justices will meet for the first time face to face since the draft majority opinion was leaked. So what does this all mean for the court and its legitimacy going forward?

Joining us now is Kenji Yoshino, who`s a professor of constitutional law at New York University Law School.

Mr. Yoshino, thank you for being with us tonight.

Weigh this, because some people are all about the leak, and most people -- especially those of us who aren`t lawyers -- are all about the underlying law and what`s going to happen to abortion rights and perhaps other rights going forward. What`s -- what`s the relative importance or connection between the two?

KENJI YOSHINO, PROFESSOR OF CONSTITUTIONAL LAW, NEW YORK UNIVERSIYT LAW SCHOOL: I think the latter is far more important and you`re absolutely right, Ali, to focus on it. But they are both important. So, just to get the leak out of the way, I want to suggest that this dropping of opinion is one thing. but the steady kind of drip strip drift that suggests that there are embedded sources inside of the Supreme Court is really, really troubling.

I just want to remind everyone that we think of the Supreme Court as this invulnerable institution, but that wasn`t always the case. If we go back to the founding, we see that the court was in fact a very fragile institution and that the Supreme Court justices would often leave the court in order to be justices on state Supreme Courts or to be foreign diplomats, something that I think would be quite unimaginable today.

So, over time, it`s built up it`s mystique and it`s prestige, but a large part of that has to do with its procedural regularity and its confidentiality and the more that gets breached as these leaks suggest that they are being breached, the more the legitimacy of the court is going to take a hit.

So one thing that I want to look for, Ali, is in these future big ticket cases are we to expect similar decision drops of draft opinions prior to the issuance of the opinion itself.

VELSHI: it`s kind of interesting though if you do that in fact you had suggested that if you do that, it feels almost like the issuance of a regulation where draft regulations are subjected to a notice period and comment procedures before they become vital. That`s not how the Supreme Court rules. It`s how my city council rules. It`s how a lot of states roll when they`ve got a new law to put out there.

You suggest that that would be a sea change that, hey, they float something out there to see how it goes and wait to get feedback before their final decision.

YOSHINO: Absolutely, the Supreme Court has fabulously guarded his confidentiality and as Justice Ginsburg used to say, those who know don`t talk, and those who talk don`t know. So as Adam Liptak said an article that he published just a couple of hours ago in "The New York Times," the Supreme Court is now starting to look like the other branches of government and it`s starting to look comparably leaky in ways that can only damage its legitimacy going forward.

VELSHI: All right. So let`s assume that there are a lot of Americans who think the legitimacy is damaged either because of the politicization of the court or the leaks or things like that. What`s the fix? And in attempting to fix it, do you risk more damage?

YOSHINO: Well, I think the fix is really -- first of all, to think about how to stop the leaking, right? But I think more deeply and more importantly as you gestured at the top of this conversation, it`s really to make sure that we keep our eyes on the prize and on what`s important, because when I think about those two threats to the legitimacy of the court, they`re really two of them one is the leakiness the other one is the substance of this draft opinion itself, and as threatening as these leaks are, they are as nothing compared to the trampling of precedent and the trampling of rights that are embodied in the draft opinion.

So my real concern about the leaks is that I`m quite ambivalent about talking about them even though they are important. And I`m ambivalent about them because every single minute that we spend talking about the leaks is - -


YOSHINO: -- the core of the substance of opinion itself.


VELSHI: Well, then, let`s do that, because when one is reading the constitution, one comes away with two things. There`s a lot of remarkably interesting stuff in the Constitution, and it feels a little removed from our daily lives, because it doesn`t enumerate rights that we know to be ours and we know to be protected but they`re not written into the Constitution. Alito made a reference to the fact that Roe is not secure because abortion is not an enumerated right in the Constitution. That a lot of people have looked at that -- a lot of smart people like you looked at that and said that that argument doesn`t hold a lot of water.

YOSHINO: Right. So, first of all, we all know that there are unenumerated rights in the Constitution, right? So, the right to marry, the right to vote, the right to travel across state lines, none of these are enumerated in the Constitution. In fact, the Ninth Amendment says you know the enumeration the Constitution of civil rights shall not be construed to deny or disparage others held by the people. So there`s text in the Constitution that tells us that there are non-textual rights in the Constitution, if you will.

So the question is not whether they`re unenumerated rights but which ones are going to be protected and the devastating impact of this opinion is that it articulates a test that endangers so many of the personal rights that have been assured over the past you know five decades or so since the Griswold versus Connecticut case of 1965.

So I again want to focus us on the abortion right. You know, the most executable thing that the opinion did was that it bombed us back to a 1970s vision of what women`s autonomy and equality mean in this country. And that is a horrifying aspect of the opinion and all of us who consider ourselves allies to women should actually be extremely concerned about that to put it mildly.

But I also want to say that the additional terrible part of this opinion is that it said the only unenumerated rights that we`re going to protect are those that are, quote/unquote, deeply rooted in this nation`s history and traditions. And if we apply that test right which despite the court`s claims to the contrary sort of ignores prior precedent like the Obergefell case, what we would get rid of are things like the right to same-sex marriage, the right to privacy and our sexual conduct, the right to contraception, even the right to interracial marriage.

So we should all be sounding the alarm bell. You start to see, Ali, why I`m a little less concerned about leak and more concerned about the substance of the opinion, because even if in response to this leak, let`s say best case scenario, they change the opinion, they water it down, right, and they come up with a much more anodyne version of what they wrote and this draft opinion, they still cannot sort of unring the bell or unpoison the well. We now know that there are at least five justices on this Supreme Court or are willing to completely trample on the personal rights that we all depend on for a functioning modern society.

VELSHI: You made your case well. Professor Yoshino, we appreciate it. Kenji Yoshino is a professor of constitutional law at New York University Law School. We appreciate your time tonight.

Well, still ahead, Senator Chris Murphy joins us next to talk about the war in Ukraine, America`s role in it, and today`s vote on abortion rights. Stay with us.



VELSHI: Today more than a dozen Ukrainian soldiers reported to an artillery school in southwest Germany to begin training on the howitzer 2000. It is a great big gun that fires 150 millimeter rounds at targets up to 35 miles away.

This marks the first time troops on Ukraine`s armed forces have received this kind of instruction in Germany. It comes less than a week after Germany announced it would send seven of the self propelled long-range artillery systems to Ukraine, which is a reversal of German policy of not sending heavy weaponry to war zones because of its Nazi history.

The U.S. has sent Ukraine 90 of our own howitzer systems called M777 howitzers, along with 184,000 artillery rounds and other material. This is video of troops at an air reserve base in California, loading up some of those howitzers for shipment last month.

Last night, the House voted overwhelmingly to pass a bill that provide another 40 billion dollars of military and humanitarian aid to Ukraine, in addition to the nearly 14 billion dollars that lawmakers approved in March.

President Biden asked Congress to approve $33 billion but lawmakers increase that funding.

Now, it hits the Senate where Democratic leader, Senator Schumer, has pledged swift action to pass it, and that could happen as early as tomorrow. Ukrainian President Volodymyr Zelenskyy released this message, thanking the United States. He said, the funds would be, quote, used quickly and without any red tape, to strengthen the defenses of Ukraine.

And U.S. officials are keen to get aid to the country as soon as possible.

Here`s the Defense Secretary Lloyd Austin at the House Appropriations Subcommittee meeting tonight.


LLOYD AUSTIN, DEFENSE SECRETARY: Our most urgent goal continues to be sending Ukrainian capabilities they need the most right now, as the war has shifted to the Donbas and the south. The coming weeks will be critical for Ukraine.



VELSHI: Joining us now is Democratic Senator Chris Murphy of Connecticut. He`s member of the Foreign Relations Committee. He`s a part of a bipartisan delegation that traveled to Serbia last month to urge them to join Europe in imposing sanctions on Russia. He is just a lawmaker we want to hear about on this issue.

So, Senator Murphy, thank you for being here tonight.

I want to get your take on this. You have been to Ukraine. You visited with President Zelenskyy a few times now.

You`ve got a real sense of him and the company and the way the war is going. Give me your 30,000 foot view to go alongside Defense Secretary Austin`s, that something about the next few weeks is going to be crucial for this war for Ukraine.

SEN. CHRIS MURPHY (D-CT): I have probably been to the Ukraine as many or more times than any other member of the Senate. We are all absolutely blown away by the capacity and the heroism of the Ukrainian people and their armed forces. But you are right, we are entering a really critical moment in this war.

Ukraine has the opportunity to go on the offense in eastern Ukraine, to deliver a pretty crippling blow to Russia. Russia is sort of looking at the end of this year, knowing that they are soon going to run out of money to continue to fight this war. They are going to start running out of defense material as our defense import sanctions start to take hold.

And the next few weeks are critical, because as Russia`s objectives start to become more limited, we have the opportunity to push them back on their heels, even as they seek to control only a portion of the Ukraine, very different from their original goal to take over the entirety of the country.

Listen, this matters because everybody is watching. The Chinese are watching. They have ambitions to invade Taiwan and as they watch Russia fail, as they watch Russia pay this enormous price for their invasion of Ukraine, it resets their calculation of what they may do.

So, you know, we are trying to keep the postwar order vaguely intact in the next few weeks and it will be critical to whether we succeed or fail in that mission.

VELSHI: You made an interesting point. I think in the last week, China has sent 48 aircraft into Taiwanese airspace. Joe Biden is actually made a commitment at some point that if Taiwan comes under some sort of attack, America will stand by it.

But the American public is frustrated by war and participation in the war. The American public, like every public in the world, is frustrated by high gas prices. If, as the director of national intelligence said today, this could end up being a longer term war than expected, isn`t that advantage to Russia? Doesn`t that make it harder for America to convince allies around the world and the American people that whatever pain is everybody is putting up with is going to go on longer?

MURPHY: Well, as Barack Obama once famously said, I`m not against all wars, I`m just against dumb wars. The American public know dumb wars when they see them. They know wars of choice, like the war in Iraq.

The American people support American engagement in Ukraine`s war, because they know Ukraine didn`t ask for this war. This is fundamentally different than other engagement. So, I think the American people do understand that this is a hinge moment in history, and America needs to be present.

I take your caution, though, as this war drags on, there certainly is potential that it fades from the news and the American public turns to other subjects. But as I stated earlier, really, Russia has more to lose from a long war because the sanctions are crippling. They only have a certain amount of reserves.

As Europe in the United States start to wane ourselves off of Russian oil and gas, they simply aren`t going to have the money to pay for what they are trying to do in eastern Ukraine. So, yes, there is a risk that the world starts to lose focus. But there is a bigger risk that Russia is just going to run out of cash.

VELSHI: Senator, I want to ask you -- your Republican colleagues, and Senator Joe Manchin voted to block it in an abortion rights bill from being considered in the Senate. Can you get your sense of what you think has to happen next?

MURPHY: We`ve got to win elections. As you saw today, right now, we have 49 votes, maybe 50, 51 votes. Four bills that protect women`s right to make decisions about their own body, keep government out of those decisions.

And we`ve got to keep on, the Republicans. I don`t think this is the last vote we will take on the visuals choice between now in the end of the year. We just have to up our numbers because we need to do two things, we need to get low pro-choice senators, which means more Democrats, but we also need to get more people in the Senate who aren`t going to let the rule stand in a way of the majority of Americans, 65 percent of which don`t want the government to make decisions over women`s health care, to be able to have bills passed to protect those rights.


So let`s just go out there and win elections, get more pro-choice members in the House and the Senate elected, and maybe things will look different next January.

VELSHI: Democratic Senator Chris Murphy of Connecticut, member of the foreign relations committee, we appreciate your time tonight, sir.

MURPHY: Thank you.

VELSHI: We`ll be right -- we`ll be right back.


VELSHI: And that does it for us tonight. We`re going to see you again tomorrow here on MSNBC PRIME.


Good evening, my friend.