Judge to issue written ruling on special master as DOJ and Trump lawyers exchanged arguments. Former conservative judge and some veteran prosecutors suggesting Trump indictment is imminent over document scandal. The Nation`s National Affairs Correspondent Joan Walsh and The New York Times Columnist Michelle Goldberg join Katie Phang to talk about Joe Biden`s route to Philadelphia for a primetime address as the MAGA forces determined to take the country backward. Former federal prosecutor Renato Mariotti joins Katie Phang to talk about the top Trump White House lawyers about to testify before the grand jury on January 6th probe.
NICOLLE WALLACE, MSNBC HOST: Thank you so much for letting us into your homes during these extraordinary times. We are grateful. THE BEAT with Katie Phang in for Ari Melber starts right now.
KATIE PHANG, MSNBC ANCHOR: Hi, Nicolle. Thanks so much. And welcome to THE BEAT. I`m Katie Phang in again for Ari Melber.
We`re going to start tonight with the drama in a Florida courtroom over the Trump classified document scandal. Trump`s lawyers and DOJ lawyers squaring off over Trump`s request to appoint a special master. Someone who`s going to oversee the review of documents and the materials that were seized from Mar-a-Lago. A judge had no ruling from the bench thus far, saying she will have a written statement in, quote, "due course."
Attorneys for Trump compared the documents to an overdue library book, marveling at how the records dispute has suddenly been transformed into a criminal investigation. Trump and his team have tried all kinds of defenses, from Trump falsely saying the top secret documents were his to then saying that he declassified them. In court today, the DOJ lawyers were blunt, saying he is no longer the president, and because he`s no longer the president, he had no right to those documents, and that ends the analysis.
But we might be seeing a lot more from the search. The judge saying she will unseal the detailed inventory list that was prepared by the DOJ. And prior to the hearing, Trump out on right-wing media attacking the DOJ once again.
(BEGIN VIDEO CLIP)
DONALD TRUMP, FORMER PRESIDENT: They took documents and they put them all over the floor. And then they deceptively put out that picture. A lot of people think that when you walk into my office I have confidential documents or whatever it may be, all declassified, but I have confidential documents spread out all over my floor, and -- like a slob. Like I`m sitting there reading these documents all day long, or somebody else would be. It`s so dishonest when you look at it.
(END VIDEO CLIP)
PHANG: Trump`s legal team might want to try to stop their client from this, but we know that`s never easy with him. While another Trump lawyer is out on FOX News admitting that guests were frequently inside that office.
(BEGIN VIDEO CLIP)
ALINA HABBA, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: I have never, ever seen that. That is not the way his office looks. Anybody that knows President Trump`s office, he has guests frequently there. It is -- it`s just a joke. They literally must have gone in and taken out documents they wanted or cover letters as it is, and put it about so that the public believes that this is top secret documents that were on his floor. It`s ridiculous.
(END VIDEO CLIP)
PHANG: Joining me now is Barbara McQuade, former United States attorney and currently law professor with the University of Michigan, and David Preiss, former CIA officer and the author of "The President`s Book of Secrets."
Barb and David, thank you so much for being here. I`m going to start with you, Barbara. No ruling from the bench yet. Not necessarily unexpected the way that I think about it. I mean, it`s a pretty major case and a significant ruling.
Can you make it a call for us right now, Barbara, and tell us whether or not you think the judge is going to rule in favor of Donald Trump`s motion?
BARBARA MCQUADE, FORMER FEDERAL PROSECUTOR: Well, it`s pure speculation on my part, but I think the fact that she did not rule from the bench is a good signal. I also think the fact that she said she was preliminarily inclined to grant the motion is a good signal because it suggests that she is appeasing Trump to some extent.
It was always the case when a judge complimented your argument that they then said the word but and ruled in favor of your opponent. And so what I think is most likely here is a ruling that would appoint a special master for the very limited purpose of reviewing the material that`s already been segregated as attorney-client privilege material. Not looking at this executive privilege assertion.
You know, none of the other arguments carry any weight, and in fact, the most appealing argument Trump`s lawyers made was that we need to turn down the temperature. And so it`s really a policy argument. It`s not a legal argument. There`s no legal basis for it. But it might turn down the temperature, which might actually do the Justice Department a favor, if it is limited to that small universe of documents because that would not slow down the need for a damage assessment to the spill of classified information.
PHANG: And that`s really my follow-up question to you, Barbara, before I go to David. What impact in the immediate sense would the appointment of a special master, even if it was limited to the review of the already pulled documents or the set aside documents? What kind of impact would it have on the immediate sense for the DOJ`s investigation?
MCQUADE: Well, it would really depend on how she fashions this, but if, for example, she said, you must stop all review of the documents for either the criminal investigation or for the damage assessment, I think that would have a very damaging effect. If instead she said the review may continue, and the fact that she didn`t stop it today or when the motion was filed leads me to believe she will not order that either of those things to be stopped, but that`s where the real damage could be.
Every day that would go by that that damage assessment is not conducted is a day that a source overseas could have their lives in danger. And so that`s the real cost of appointing a special master here to review all of this material.
PHANG: And, you know, David, to Barb`s point about the risk, the danger to America`s national security, Trump`s lawyers comparing these documents to a, quote, "overdue library book," frankly I found to be insulting and I don`t actually -- I`m not in that space, but you are. So what do you say to that comparison?
DAVID PREISS, FORMER CIA OFFICER: Well, you know, I worked with a lot of these intelligence documents up to and including those top secret compartmented documents that we`re seeing here. I never once compared them to things that were available in a public library. These are very sensitive documents that took a lot of human resources and financial resources to acquire for the national security of the United States. And to dismiss them as either have been today as being akin somehow to checking things out of a library or as the former president has said, that these are my records, neither one of those hold any weight.
And that can be a legal issue, but honestly, I think in this area we`re in a public relations issue as well. The president seems to be -- the former president seems to be much more concerned about the image, the fact that there are these optics of documents being strewn across the floor as if he`s never seen an evidence photo in his life. Rather than being concerned about the fact that it is literally showing highly classified material that was interspersed with "TIME" magazine covers and God knows what else that was brought out of his desk and his storage room.
That`s the real issue. And if the former president wants to make it a public relations game about how the top secret documents looked as they were presented for an evidence photo, that shows he`s already losing on all of the other important matters, and he`s forgetting about the national security implications of it all.
PHANG: You know, Barb, last night the Trump team filed its reply as it was required to do per the court order, and there was something that I noted on page 16 of the reply where the relief that they were telling the court to do was to have the government provide to the special master and to Trump`s team a copy of the seized materials, a copy of the search warrant, and an unredacted copy of their underlying application materials.
Clearly this is what they wanted to get their hands on, right, Barb? They wanted to be able to get their hands on the full unredacted affidavit, the underlying application materials to be able to execute that warrant in the first place.
Partial victory today then, the fact that even the DOJ stipulated that that detailed inventory list that they prepared was going to be turned over and unsealed?
MCQUADE: Well, I think that`s half a loaf at best. The detailed inventory my guess is still written in such a way as to safeguard the contents of those classified documents. They`re not going to include there, you know, the source and their name on the list. It might be slightly more detailed than we`ve seen to date, which is these, you know, boxes of classified material at the top secret level.
It might be a little more granular than that, listing out, you know, an inventory of each document within the box but I think it`s still going to say classified document maybe dated 2017 like I think that`s the best we`re going to get there. So I don`t think so, and it`s absolutely a nonstarter that Trump would get the affidavit at this stage, and the reason for that is the need to protect the identities of witnesses.
We saw the description of a significant number of civilian witnesses. If their identities became known, not only would they be subject to intimidation by Donald Trump and others, much like the kinds of calls that we hear the January 6th witnesses are receiving, but also members of the public, people who are part of the group who answered the call on January 6th might also be likely to threaten or harm the people who were providing information to the Justice Department relating to this search. So to me that`s just an absolute nonstarter.
PHANG: You know, David, one argument that Trump has raised publicly is that the documents were declassified by him. Interestingly, though, it hasn`t even been brought up by his legal team either in court or through the filings that they have done? What does that tell you, David, about that particular defense?
PREISS: There`s a good reason for that. It`s ridiculous, and it`s patently ridiculous. There`s no evidence of it happening, and there are plenty of people who worked around the former president in the White House who said they never heard of it, never saw any evidence of it. So it`s a distraction. It`s a typical strategy we`ve seen. Look at this shiny object. Get all of us talking about it, get all of us trying to debunk it in a logical rational way, when it was never a logical rational argument in the first place.
We just focus on the basics here. None of the material that is a presidential record of any kind should have been in his possession at all, but the search warrant didn`t even use the Presidential Records Act, right?
It was talk about concealment, it was talking about willful retention, it was talking about issues contained within the Espionage Act, although not necessarily pertaining to what we consider espionage. That`s what we should be talking about because all of these distractions are just a way to try to -- no, thankfully it doesn`t work in most courts of law that way. That works for the public sphere, but that`s not where this is being argued right now.
This was a courtroom today, and the judge by not ruling from the bench did the right thing and said, I need to actually think about this. I need to look at these arguments that were presented because I wasn`t the one who issued the original search and saw the affidavit originally. I want to look at all this and decide, and I think any rational person who does is going to realize that there`s some very asperous arguments out there about declassification that are just distractions. And let`s get back to the fundamentals of the case, which are pretty clear.
PHANG: You know, Barb, David brings up a really good point, right? Bruce Reinhart, the magistrate judge who reviewed the affidavit in its fully unredacted form and OKed and signed off on that search warrant, sits in an entirely different courtroom than where Judge Aileen Cannon does, who was the judge who heard the arguments today.
So to David`s point then, Barb, isn`t the fact that President Trump or former President Trump doesn`t have even standing to come before this federal district court judge and ask for this relief enough for her to kick it out and not even have to worry about whether there`s been declassification, whether there`s an issue of how it was seized? I mean, this is an entirely separate judge in an entirely separate courtroom.
MCQUADE: Yes, you know, and there was some initial reaction to that, that why is this judge even handling this as opposed to saying, I`m dismissing it for lack of jurisdiction, you should take this up with the magistrate judge who issued the warrant. The one opening she has is that magistrate judges are not empowered to appoint special masters. Only a district court judge can do that and then delegate that authority to a magistrate judge, so for that reason it landed on her desk, and so she took it from there.
I think it`s quite possible that President Trump filed there thinking that he was judge shopping and he was going to get a judge that he appointed and might have the best shot of getting a favorable ruling from her. But so far she`s done things by the book. She`s listening to the case. She did give that preliminary indication of granting the motion, which is a little bit unusual, but I think you`re right, when it comes down to the law, if she is to simply decide this case based on the law, the first argument that the Justice Department makes is one of standing.
He has no standing because this is not his property. These are records that belong to the United States of America, and so he has no claim over them. Therefore he has no standing and so the easiest thing in the world would be for her to simply say relief denied (INAUDIBLE).
PHANG: Yes, you know, this judge actually normally doesn`t even sit in the Palm Beach County. She`s located in the Ft. Pierce, so when it comes to that argument of perhaps forum shopping, which is not the first time we`ve seen Donald Trump try this, I think it actually may have a little bit of water there.
Barbara McQuade, David Preiss, thank you so much for joining us tonight.
MCQUADE: Thanks, Katie.
PREISS: You`re welcome.
PHANG: Coming up in just 60 seconds, why even conservative legal experts are saying a Trump indictment is likely. We have a special guest on that when we`re back in just 60 seconds.
PHANG: Donald Trump`s urgent push for a special master backfiring, kicking the door open for more legal exposure for not only himself but his lawyers, too. "The New York Times" highlighting two of Trump`s lawyers now in danger of becoming witnesses, or worse perhaps codefendants? After the Justice Department strongly suggested that people in Trump`s circle concealed documents from the government.
Experts telling "The Washington Post" the two attorneys are in enormous legal peril. The evidence presented in the DOJ`s latest filing all, quote, "pretty damming." But even before this bombshell DOJ filing complete with a photo of top secret documents in Trump`s possession, many DOJ veterans were predicting that Trump is likely to be indicted over this document scandal.
(BEGIN VIDEO CLIP)
ANDREW WEISSMANN, FORMER FBI GENERAL COUNSEL: My big overarching takeaway is -- and I know this is just a prediction and speculation, but I say it`s an educated one -- is that the former president is going to be prosecuted.
NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: A federal criminal indictment is very, very hard for Donald Trump to avoid at this point. He stole these documents, he lied about it, he refused to give the documents back. I think it`s impossible, virtually, for the Justice Department to look the other way.
(END VIDEO CLIP)
PHANG: Now in light of the filing and the photo even conservative legal experts are suggesting an indictment is coming. Here`s former FOX News legal analyst, retired judge, Andrew Napolitano just last night.
(BEGIN VIDEO CLIP)
ANDREW NAPOLITANO, FORMER NEW JERSEY SUPERIOR COURT JUDGE: I don`t think the government would have gone through this without planning in advance to indict him. It pains me to say it, and I don`t think he should be indicted, but I think the people that will make this decision have already made up their minds, and they`ll make this presentation to the grand jury right after the midterm elections.
(END VIDEO CLIP)
PHANG: Now hardcore conservative former prosecutor Andrew McCarthy, a FOX favorite who wrote a whole book defending Trump and attacking the Mueller probe, is saying Trump is likely to be charged with obstruction of justice and causing false statements to be made to investigators.
You know, it`s impossible to predict if the DOJ will actually bring charge against Trump. There is a debate over indicting a former president. One side saying it would set a bad precedent. The other side saying not indicting would set an even worse precedent.
Joining me now is white collar criminal defense attorney, Sara Azari.
Sara, it`s always so nice to see you.
SARA AZARI, WHITE COLLAR DEFENSE ATTORNEY: Nice to see you, Katie.
PHANG: Keeping in mind the latest reporting that the DOJ won`t be indicting Trump any time before the November midterms, do you think we can reasonably expect an indictment of Donald Trump?
AZARI: Look, Katie, if this was one of my clients, I`d be having a conversation with them about what will happen when you`re indicted, not if you`re indicted. I would be speaking to prosecutors in the Southern District of Florida and D.C. about how we can help you help us. What do we do about bond? What do we do about the initial hearing? But this is of course a former president who has gotten a lot of deference.
When he was a sitting president he got deference with respect to the Mueller investigation crimes. Then he got cut slack with Ukraine. Then, you know, January 6th is all this struggle with intent and knowledge. And now we have the issue of, well, it`s unprecedented and he`s a former president.
But, you know, when you look at whether or not he`s going to be indicted, Katie, you really have to look at what it`s like to be in Garland`s shoes. Garland has to make sure that he can check off all the boxes and has sufficient proof beyond a reasonable doubt because we`re in a court of law. It`s about what you show, right? And so he has to be able to feel confident that he can prove every element of every one of these offenses.
And I`ll tell you something, as someone who`s defended people on obstruction charges and violations of the Espionage Act, typically the government does not prosecute, the DOJ does not prosecute just on Espionage Act violations alone unless they`re very egregious. But that`s sort of a mishandling of classified information type of charge. If, however, it is in combination and aggravated by an obstruction charge or something more egregious, like what we`re starting to see with Trump and his orbit, then that is a very serious consideration for indictment.
And so here we have a president who, with respect to knowledge, not only the DOJ has witnesses that it has alluded to in the, you know, unredacted portions of the affidavit and then the recent filing, but Trump and his lawyers have been filling in the blanks. You know, essentially his lawyer has been putting herself at the crime scene, making herself a witness, incriminating her client.
Her client, Trump, is on Truth Social admitting to knowing that he was in possession of these documents because they were in cartons and they were not in the way that the FBI displayed them for the evidence photographs. So, you know, to the extent that there`s any dots to be connected or any blanks to be filled, Donald Trump and a group of very incompetent -- I`m sorry I have the say that -- law school graduates for the past several weeks have been doing the job of DOJ helping in this investigation.
So, you know, he is indictable. He is indictable, but for the fact that we have these policy and political considerations of dealing with a former president.
PHANG: Yes, but the lawyers here, right, we`ve all been talking about their personal exposure based upon their own independent conduct that they did vis-a-vis the federal government, the FBI, and the investigation. Notably Christina Bobb not signing off on any of the filings that are being done in court. You see Lindsey Halligan, you see Jim Trusty, I mean, the people that you see signing off on these documents, Sara, they are not people that we have been talking about having exposure themselves criminally in this particular investigation.
Do you think they`ve lawyered up? People like Christina Bobb? Do you think that they`ve actually gone and gotten their own counsel out of a fear that they could be a codefendant in a subsequent indictment with Donald Trump?
AZARI: Yes, you know, Katie, I see this as a multidefendant type of indictment if it`s brought at some point, hopefully. But if she has not lawyered up, she should be lawyering up, and so should Miss Habba who was on TV talking about being in that room and the documents not ever looking like that. I mean, she`s at a minimum a witness, and she needs witness counsel. A witness, as we know, can turn into a subject and a subject can turn into a target very easily.
So all of these lawyers need their own lawyers, which is part comical and part really astonishing to me. But they have put themselves in a situation where not only they have not controlled their client to the extent that he`s controllable, he`s out there talking and he`s digging a deeper hole for himself, but they are digging holes for themselves as codefendants.
They have signed off on affidavits about, you know, knowing having personal knowledge about these documents and how they`re stored and where they`re stored, that there`s nothing else left, that they`ve turned everything over, and of course that is not true. And the DOJ is aware of that because in their recent filing they clearly made -- you know, laid out that there`s been some concealment going on by not only Donald Trump, but people around him. And those people around him are his lawyers.
PHANG: Well, I think when it comes to proving intent, Sara, the fact that there`s this much obstruction going on not only by Donald Trump but his lawyers, I think very quickly soon Trump is going to be calling that whole crew of lawyers, the covfefe lawyers that he had.
Sara Azari, thank you so much for being here. I appreciate it.
AZARI: Good to be with you, Katie.
PHANG: Coming up, an escalation in the January 6th criminal probe. Trump White House lawyers will go under oath tomorrow.
But first he`s been on the attack. Tonight, President Biden will deliver a speech and call out MAGA Republicans. More on that next.
PHANG: President Biden and the first lady boarding Air Force One moments ago on route to Philadelphia, where the president will deliver a primetime address on the battle for the soul of the nation at Independence Hall.
The location chosen deliberately. It`s where American democracy was born. The White House releasing two early excerpts from the president`s prepared remarks. He`ll say, quote, "MAGA forces are determined to take this country backwards, backwards to an America where there is no right to choose, no right to privacy, not right to interception, no right to marry who you love. For a long time we have reassured ourselves that American democracy is guaranteed. But it is not. We have to defend it, protect it, stand up for it, each and every one of us."
Notably, this speech is billed as a White House event. It is not a campaign stop.
Joining me now is "New York Times" columnist Michelle Goldberg and national affairs correspondent for "The Nation," Joan Walsh.
Michelle and Joan, what a pleasure to have you guys on set. Thank you so much for taking the time to be here.
Michelle, I`m going to start with you. What are you looking for specifically to hear from President Biden tonight in Philadelphia?
MICHELLE GOLDBERG, THE NEW YORK TIMES COLUMNIST: Well, look, I think that the threat to democracy is something that is very real and that people are very worried about, and in a way, this is the perfect time for him to be giving this speech because if he had given it even a few months ago when things were going wrong for his administration in all different sorts of ways, it might seem like he was just trying to deflect blame on Trump.
Where now things are on the upswing, and that Trump is kind of making it easy for him by just today saying that if he`s president he`s going -- if he becomes president again he`s going to pardon the January 6th rioters and have the government apologize to them. I mean, I think you can imagine a Trump State of the Union where he gives one of them a Medal of Honor. And so I think it`s the right thing for Joe Biden to do.
You know, a lot of Republicans were whining and moaning when Biden called the MAGA movement semi-fascist, but if you look at any academic study of fascism, he was 100 percent correct, and it`s, I think, good for him to force a discussion of this ongoing threat to democracy.
PHANG: You know, Joan, but do people understand this concept of democracy being in peril? As people still stress out about inflation, the economy, jobs, as they stress out about getting affordable health care.
JOAN WALSH, NATIONAL AFFAIRS CORRESPONDENT, THE NATION: Right.
PHANG: As they worry about the inability to go and have access to a safe and legal abortion. Does this phraseology or this messaging of democracy in peril really resonate you think with potential voters?
WALSH: I think it does. We saw in a poll last week, it was threats to democracy was the number one concern, not inflation anymore. Abortion was high, but not the highest. But, you know, the other thing, Katie, I think these things have come together. We see the rioters, we see the violence, we see the lawlessness at Mar-a-Lago. We see a guy who still won`t concede that he`d lost the election.
But we`ve always seen that our rights are being trampled. Again, opinion polls -- people did not want Roe overturned. We`ve seen almost half the states enact serious, even total bans since that happened. Americans want sharper, stricter gun safety reform. We can`t get it. The gun lobby controls Republicans. So I think that there`s a coming together where it`s really practical in your life. It`s not just, you know, the January 6th rioters or crazy Trump and his crazy lawyers and Rudy Giuliani. It`s really affecting especially women day-to-day.
GOLDBERG: Well, yes, I just think it`s important to tie together the attack on abortion rights and the attack on democracy in some ways are one in the same, right? The essential problem in this country is minority rule. So, you see, for example, in Michigan, when activists gathered the requisite number of signatures to get a referendum on the ballot about whether or not abortion is going to be legal in Michigan.
And a panel refused to -- is refusing to let it go forward because of some extra spaces in the document. You know, and I think that what we`re going - - what we`re seeing is Trumpist, at various levels of government who are going to kind of gum up the works of democracy, because that`s the only way that they can prevail.
PHANG: You know, Joan, it`s obviously not a coincidence that this is happening in Philadelphia, we talked about it in the intro to this segment. That`s where democracy was born. But there`s also some crazy racist, frankly, that are going on in that state. The Doug Mastriano, and you`ve got the Fetterman-Oz battle that`s going on.
Talk to me a little bit, Joan, about the votes that are already in the pocket for the Democrats. Who was really being targeted by President Biden in this primetime speech tonight? Is he trying to change independence minds? Does he really think that maybe he could cross the aisle and change even Republican voters` minds in what he has to say?
WALSH: I think he hopes that, but I don`t think he expects that anymore. I mean, he sometimes talks a good game about his friends on the other side of the aisle -- yes, but I think he`s kind of given up on that, which I actually appreciate. And I think -- I think it`s long past time.
But I do think if you look at poll -- polling among independents, they are open to this message. They are worried about, basically minor -- as Michelle said, minority rule, we`re living in a country where a majority of us want certain things, we cannot get them. We cannot have them. Our rights are not protected, because they control the Senate.
There`s gerrymandering, there`s the filibuster, the electoral college is anti-democratic, ultimately. So, I think there`s a -- there`s a sense of threat that is already and can be even a more palpable propeller to the polls in November. And I think that`s what he`s hoping for.
PHANG: You know, Michelle, at the beginning of summer 538 gave the GOP a 60 percent chance of winning control of Senate. Today, three months later, those numbers have completely flipped. And Democrats have a 68 percent chance of maintaining Senate control. You know, the Dems may also keep the House, just maybe.
What changed? Is it really this run of successes by Joe Biden, is it the change in the tone and going on the offensive versus bringing the pillow to the knife fight?
GOLDBERG: I don`t necessarily think that this has anything to do with Joe Biden`s messaging. I mean, I certainly think Joe Biden`s successes help, but the real person who deserves credit for the change in the Democratic fortunes least when it comes to the Senate is Donald Trump, right?
I mean, if you did have candidates like Herschel Walker, like Masters (PH), like J.D. Vance, like Doug Mastriano, and Pennsylvania, you would have -- Democrats would have much less of a chance and in some ways that goes to your question before about who is he really speaking to.
There is a sliver of voters who will vote for a kind of quote-unquote, normal Republican but don`t want to vote for these MAGA cultists, why you see as their as the kind of Republican mania comes to the fore. Why you see their numbers weakening.
PHANG: You know, Joan, quickly, I got less than a minute. The irony though, right? We don`t want Trump. People don`t want him but maybe he is the recipe or the secret for success. Can you necessarily extricate Trump from the GOP party? Is it so just inextricably intertwined that we almost are waiting to see if he`s going to announce for the 2024?
Putting aside whether or not he wants to save his hide legally. Do you think that that actually would be a windfall for the Democrats trying to go into not only the November midterms but maybe even 2024?
WALSH: You know, as somebody who thought he couldn`t win in 2016, I don`t really -- I don`t want to go there. But, you know, I do think that he is keeping alive. This fear or escalating fear among independents and moderate Republicans, and they are -- they wind up, you know, getting their butts kicked in these primaries, you know.
Sarah Palin lost last night. You know, -- so I do think that there`s more of a sense out there of the risks that he poses the danger -- the dangers that he poses, and I think it`s going to be a major factor. I can`t say I think the Dems will keep the House but it`s -- it is possible. It`s not impossible.
PHANG: Yes. When we probably like you said a lot of people didn`t think Donald Trump was going to win in 2016. So, anything is possible. Joan Walsh, Michelle Goldberg, thank you guys for being here. Out just in time to be able to watch that 8:00 primetime address tonight.
Ahead Sarah Palin`s loss, like we were just talking about, and Trump`s classified documents scandal, has the GOP worried behind closed doors. But first, the federal January 6th criminal pro hits the West Wing. Trump`s White House lawyer is going under oath. That`s next.
PHANG: A major escalation in the criminal January 6th investigation. The Department of Justice`s probe is now going inside the West Wing. Former White House Counsel Pat Cipollone and his deputy Pat Philbin are expected to appear tomorrow before a federal grand jury.
They are the two most senior White House officials to testify under oath with the Feds. Bombshell testimony from a White House aide to Congress recounted Cipollone warning Trump`s team of every crime imaginable.
(BEGIN VIDEO CLIP)
CASSIDY HUTCHINSON, FORMER WHITE HOUSE AIDE: Mr. Cipollone said something to the effect of, please make sure we don`t go up to the Capitol, Cassidy, keep in touch with me. We`re going to get charged with every crime imaginable.
PAT CIPOLLONE, FORMER WHITE HOUSE COUNSEL: I was pretty clear there needs to be an immediate and forceful response statement, public statement that people will need to leave the Capitol now.
HUTCHINSON: He said to me, we need to make sure that this doesn`t happen. This would be legally a terrible idea for us.
(END VIDEO CLIP)
PHANG: Joining me now is former federal prosecutor Renato Mariotti. Thanks for being here. Renato, really how big of an escalation is this? You have Trump`s former White House lawyers now testifying before a grand jury in D.C.?
RENATO MARIOTTI, FORMER FEDERAL PROSECUTOR: Oh, it`s very significant. You know, every time, Katie, that we are watching the January 6 committee interview, Mr. Cipollone, and he, you know, claim privilege who didn`t answer a certain question. All those questions are going to be answered before the grand jury.
And it was very clear that that is going to override any executive privilege concern. And you know, if I was a lawyer for Mr. Clark or Mr. Eastman, Jeffrey Clark and John Eastman I will be very concerned right now because I really think that Mr. Cipollone has some very powerful evidence that could assist those investigations.
PHANG: So, Renato what does it tell you though, about the pace of the DOJ`s investigation into the January 6th insurrection? Does it suggest to you then that perhaps they`re a lot farther along if they`re having people like Pat Cipollone in Philbin come in to testify before the grand jury?
MARIOTTI: Yes, I have to say we have now as you point out, Katie, some real West Wing insiders. And we also of course, we`ve had some -- yet another cell phone, I believe was seized this week from John Eastman. So, there`s really, I think, a pretty steady activity here from the Justice Department.
You know, a lot of folks understandably, are focused on that document investigations. Pretty dramatic what happened there. But, you know, this is, I think, an investigation that we shouldn`t lose focus on.
PHANG: Yes, you know, as an aside, Cipollone and Philbin they were also both interviewed by the FBI earlier this year regarding those Mar-a-Lago classified records probes, so it`s not like they haven`t actually chimed in regarding that themselves.
So, let`s shift gears a little bit. Let`s talk about Fulton County, Georgia. I don`t know about you, Renato. I`ve always hedged the bet. That I thought that this Georgia criminal probe into Trump`s interference and trying to overturn the election results in Georgia from 2020, that that was actually going to be the biggest the quickest Achilles heel for the president.
So, a judge today, denying Senator Lindsey Graham`s motion to quash his subpoena to have to be forced to testify in front of the special grand jury that D.A. Fani Willis convened down there in Fulton County. So, what`s the takeaway from this Renato? Is he going to have to testify he being Lindsey Graham?
MARIOTTI: I think so. You know, a lot of people when this opinion first came out, were thinking, oh, no, this might be a win for Senator Graham. I disagree. I mean, I think that at the end of the day, she -- you know, the judge made very clear that his phone calls trying to pressure state officials to overturn the election, were not legislative activity.
She did limit the scope of the questioning, I actually think that`s a good thing, because this has to survive on appeal. We all know Lindsey Graham`s going to appeal. I think it`s going to be very hard for him to win on appeal, more likely to stand up there. And I think he`s going to have (INAUDIBLE).
PHANG: We mentioned his name just a minute ago, another former Trump lawyer, John Eastman, taking the fifth yesterday, upon advice of counsel, he`s saying, in front of the Fulton County grand jury, his lawyer now saying that Eastman is probably a target in that investigation. I mean, Renato where is this Georgia probe going? And how quickly do you think Fani Willis is going to be able to get to that finish line?
MARIOTTI: I think she`s going to wait till after the election, Katie. I really do. I think that`s a very, you know, careful approach by her. I think that makes sense. But I`ll have to say I`d be surprised if she didn`t have indictments arising out of that grand jury investigation. Is she is really charging very hard. She looks like she`s pretty close to the finish line. So, you know, my anticipation is early next year, we`re going to have -- we`re very late this year we`re going to have indictments coming out of that case.
PHANG: You know, Renato, if you`re Donald Trump then and you see Pat Cipollone and Philbin in front of that grand jury in D.C. you see your former counsel, John Eastman, now taking the fifth and Fulton County. Do you think that that`s indicia, that those investigations are now actually getting closer, tightening the noose around Donald Trump because he has to be the ultimate target of all of those investigations?
MARIOTTI: Yes, I mean, I would say for Eastman and Clark in particular. I mean, those are two attorneys that had very direct conversations with Trump. They were giving Trump advice. If they ultimately decided to flip and provide information that you know essentially, you know, indicates that crime was being committed and they provide that information to the Justice Department.
That can really be something because Trump, you know, he`s thinking there as attorneys, he`s going to be candid with them potentially, in a way he`s not candid with others. That really could be very devastating damage. He`s facing war on multiple fronts, Katie. (INAUDIBLE) documents case, Fulton County, this Clark-Eastman probe in D.C. There`s a lot that he is facing right now and generally.
PHANG: Renato, not to make you John on the spot, but I am. We are now getting breaking news right now from the January 6th committee. The committee wants to hear from Newt Gingrich, former Republican Speaker of the House.
The committee saying it is information that Newt Gingrich was in contact with senior advisors to President Trump over false election claims amplified during the election, specifically political ads, which attempted to cast doubt on the outcome of the election after voting had already taken place.
The committee also is alleging that Gingrich was involved with Trump after January 6th, and you have to appear to have been involved with President Trump`s efforts to stop the certification of the election results even after the attack on the Capitol. You know, Newt Gingrich has been a longtime Trump supporter, and now the committee is asking for him to come in for a transcribed interview.
Renato, breaking news about Newt Gingrich clearly showing that the January 6th committee was telling the truth when they said that they were going to be working hard and furiously during August to be able to advance their investigation. What are your thoughts about Newt Gingrich now having to be in the crosshairs?
MARIOTTI: I got to say, Katie, I`m surprised. I did not have Newt Gingrich at my bingo card, or the January 6th committee. I -- you know, if I -- if I was talking to him, if I was his counsel, my first questions to him would be, you know, what -- you know, conversations he was having with Eastman, Clark and others regarding those fake electors.
We know there`s a criminal investigation there. If he involved with involved in that in any way, he really needs to consider taking the fifth at least some of the questions, because he really doesn`t want to get tied into that investigation, which appears to be pretty active by the Justice Department.
I think it remains to be seen, you know, the extent of coordination between the Trump White House and for example, the people attacking the Capitol and as well as people who were submitting those false documents to the Senate, regarding those big electors. So, you know, I think very interesting, and I can`t wait to watch that one. It`s going to be must see -- must see T.V.
PHANG: I was going to say, like I was saying the January 6th committee clearly earning its keep and doing its work, Renato Mariotti, thank you so much for being here.
And joining me now is the co-founder of the Lincoln Project, Rick Wilson. Rick, it`s always so good to see you. Any comments about Newt Gingrich now being a target of a subpoena from the January 6th committee to be able to go and speak about his involvement in attempts to overturn the 2020 election?
RICK WILSON, CO-FOUNDER, LINCOLN PROJECT: YES, Katei, there`s a rule in Washington that if you say that Newt Gingrich is named three times he appears like the Candy Ma. This guy pops up like a bad penny over and over again. And so, in one way, I`m not shocked at all, because Gingrich is an opportunist, he saw Trump as a great way to enhance his fading profile.
And so of course, he`s going to give Trump the terrible advice. He`s given generations of Republican politicians. And I`m delighted actually, that one more person who can be an element in unraveling this entire maze that the Trump effort to overturn the election put together, he has been called to account. And the committee, I think, will get a lot out of Newt.
He is a guy who communicates with a lot of people, he talks on the phone to a lot of people, you`ll get his text messages, you`ll get his calls, you`ll get his -- the metadata, at least of who he was talking to. And this is a guy who loves to put himself in the middle of anything. So, I think this is going to be a valuable lead for the committee to run down.
And it`s a reminder that for all the other trouble that Donald Trump and his team of skills and goons and weirdos right now are facing, they still face the one-six committee until January of next year. And hell hath no fury like Liz Cheney and the people on that committee if Newt wants to play games with them, I think it`s going to turn very ugly very fast.
PHANG: But you know, Rick, I like Renato Mariotti who was just on right before you. I didn`t have Newt Gingrich on my January 6th, you know, bingo. Potential indictment, potential involvement card, he`s kind of an outlier. What does that say to you then, read some tea leaves for us a little bit, though.
What does it say to you, though, about the January 6th committee`s investigation? You know, this may be an unpopular take, but do you feel like the fact that it`s now going so far as to include somebody that maybe none of us actually saw? Maybe being involved in this is a little too broad now like is it time to just kind of pull the trigger on this or is it actually conditioned that they`re doing a really good job?
WILSON: No, actually -- I think they`re doing a very thorough job. I think the -- I think the thing that Republican apparatus around Trump should dread is that they`re never finding connections to other people. And when they analyze it -- look, if we were doing this as analyzing a terrorist ring, you would -- you would break it out, you would -- you would work your way up to the top.
Gingrich is going to be somewhere near that top level, the connections he had, the communications he had on that day are going -- and before that. They`re going to be highly relevant. I think if he`s involved in some of these things about overturning votes in the States. It`s going to be highly relevant. And I think that -- again, once every time you turn one of these guys over, you get the entire pattern of their communications out to other people. And the clues and the -- and the leaves that are going to develop off this I think are going to be very valuable.
PHANG: You know, we`re going to turn to midterm politics now, but I`m going to exercise some personal privilege here and say if that`s the case then, the January 6 Committee needs to have been talking past tense with Jenny Thomas, but that`s just my personal privilege on that.
PHANG: So, shifting gears to the midterms, Axios reporting that the Midterms is now turning into a referendum on Donald Trump. Mitch McConnell is telling people his party is blowing a golden opportunity to win the Senate and Republicans no longer feel so confident of a landslide in the House. And it`s not going to get better. The Trump document case is likely to remain in the news for months. So, Rick, how much is Trump palpably dragging down GOP candidates right now?
WILSON: Look, there are GOP candidates who six months ago would have crawled over broken glass to get Donald Trump`s endorsement. And now, they scrubbed it from their website, and now it`s Donald who. And I think he`s got to be feeling a lot of abandonment and betrayal by some of these folks, and rightly so. He has become political poison. We anticipated that this would happen. We believe from the beginning that Donald Trump could not resist reinserting himself in the campaign.
And as you saw with Mitch McConnell, you know, the biggest unreported story in Washington right now is that Rick Scott who runs the NRSC and Mitch McConnell are in a gigantic fight with one another. Donald Trump is in a fight with both of them. Marco Rubio is begging Scott to save it. This thing is going off the rails. It might as well have been engineered by Trump himself because it`s so chaotic and messy and grotesque.
Now, look, if I were the Democrats, I would still advise you do not get cocky. Do the work. You`ve gotten very lucky with some of the craziest candidates out there. You know, Blake Masters is a guy who was the strange guy in the fraternity house no one talked to for four years. You know, Dr. Oz is a -- is a weirdo of the first order. J.D. Vance is a misogynist. And I don`t use that term lightly.
These people are way off the margins for most voters in the states, especially in the political climate we`ve emerged into this year, as inflation has started to ease, gas prices have dropped, and the Dobbs decision has energized female voters across the country at a level we could not have anticipated.
And so, you know, don`t stop doing the work, but the Midterms are looking better. And in the House stuff, I will say this. Redistricting still has a very powerful effect and it`s still going to cause an awful lot of seats for the Democrats to be very tough races. They should not sleep on those seats. But you know, with Donald Trump making himself the story again, and with the Republican Party breaking itself apart over whether to defend him or hide from him or love him or hate him, we are in a position right now where what was going to be a red wave may turn out to be something quite different.
PHANG: You know, Rick, I got less than a minute. One of your favorite sayings that have been attributed to you is everything Trump touches dies. Are we seeing now what I think is the common denominator. I am being a former trial lawyer. Everything that Trump touches dies includes apparently lawyers credibility, their professionalism, perhaps their BAR licenses. The RNC is not even going to pay for Trump`s legal bills in this classified document probe.
Very quickly. Rick, is this the beyond the pale thing for the RNC, this investigation into the classified documents?
WILSON: Well, look, Ronna McDaniel has been trying to find a way out from Trump for a long time. She`s not going to get there. He`s going to cut them off. He controls the rights to use his name and their emails, which generates roughly 80 percent of their funding. So, at the end of the day, they`re playing chicken. Ronna will lose that game of chicken. But as for Trump`s lawyers, you know, if you`re a Trump lawyer, and you get through this somehow, some way, you`re going to tell people you were defending international drug kingpins for the last few years, because that`s a more respectable thing to do than defending Donald Trump.
PHANG: I`m grateful not to be a lawyer practicing law anymore. Rick Wilson, thank you so much for being here tonight.
WILSON: Thanks, Katie.
PHANG: And thanks for the insight on the breaking news for Newt Gingrich.
PHANG: And we will be right back.
PHANG: President Biden landing in Philadelphia moments ago ahead of his primetime speech to the nation. He`ll speak at Independence Hall about the threats facing our democracy and the importance of combating those threats today. We`ll be airing it live tonight right here on MSNBC at 8:00 p.m. Eastern.
That does it for me. You can also catch me on "THE KATIE FANG SHOW" weekend mornings at 7:00 a.m. Eastern right here on MSNBC. And you can stream new original episodes of my show on the MSNBC hub on Peacock as well. "THE REIDOUT WITH JOY REID" is up next.