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Transcript: The Beat with Ari Melber, 5/31/22

Guests: Chai Komanduri, Julian Epstein


Trump veteran aide Peter Navarro hit with new criminal subpoenas from the FBI. Democrats feared Republican Senator Mitch McConnell would block gun reform again, while Senator Ted Cruz blamed everything but the guns. Chai Komanduri joins Ari Melber to talk about the guns as the leading cause of death among children in 2021. Julian Epstein joins Ari Melber to talk about the court rule against Ron DeSantis for violating free speech and losing the case.


HEILEMANN: Thank you for being with us on this Tuesday. We are grateful. THE BEAT WITH ARI MELBER starts right now.

And Ari, I got to ask you, BTS or Backstreet Boys?

ARI MELBER, MSNBC HOST: I mean, Backstreet Boys?

HEILEMANN: I mean, that`s old school. You`re kind of an old school dude, right? Backstreet Boys?

MELBER: I love the old and the new. I love the old and the new and it`s a toss I`ve never gotten before, John, so we thank you for that.

HEILEMANN: Well, good to see you, brother.

MELBER: Good to see you. Appreciate it.

Welcome, everyone, to THE BEAT. I am Ari Melber. I answered that question honestly. It`s all I could do.

And let me tell you, we have a lot in the show tonight. Our top story, though, is something very important. It`s major news coming out of the Justice Department which has been under this sustained pressure to be more aggressive in that open probe into the insurrection. And to see why this news is significant, it is worth remembering something right off the top here. How a lot of credible people from legal experts to the House investigators themselves have said it`s imperative that the DOJ bear down on any law-breaking or subpoena-defying by people linked to the events of January 6th.


JASON JOHNSON, PROFESSOR OF POLITICS: Will the Department of Justice be quick and aggressive?

MEHDI HASAN, MSNBC HOST, "MEHDI HASAN SHOW": How much pressure is Garland going to be under then from liberals, from Democrats?

UNIDENTIFIED MALE: He`s going to be under a lot of pressure.

REP. ZOE LOFGREN (D-CA): This committee is doing its job. The Department of Justice needs to do theirs.

STEPHANIE RUHLE, MSNBC HOST: What`s the holdup at the Department of Justice?

REP. ADAM SCHIFF (D-CA): The Department of Justice has a duty to act on this referral and others we have sent.


MELBER: So many different people have been saying exactly that. And as you saw, those voices include just some of the top committee members we had time to show you, Schiff and Lofgren, bluntly pressing the DOJ to pick up where parts of the house probe has really left off because multiple Trump aides defied House subpoenas and sometimes would then go out and publicly tout their own defiance.

That`s a contrast to how the vast majority of witnesses, including other Trump aides and family members, have cooperated with the House probe. And that brings us to the standoff animating tonight`s news. Remember the legal scorecard. You had Trump aides who defied Congress and they were dealt with a rare and grave measure in return, contempt, as you see here. That`s four aides and counting.

The DOJ has acted on one of those, indicting Steve Bannon, and he awaits trial. Those other three were just out there. Now there was pressure from that indictment. Maybe the DOJ thought indicting one would send a message and others would cooperate. Maybe they don`t want to go and just indict everyone right in a row immediately, but then nothing else over the months have been publicly confirmed out of the Justice Department about any of this until now.

The news now is the DOJ using the pressure of an actual criminal probe against another White House veteran on the four I showed you there, this time against Trump aide Peter Navarro, who spoke public about attempts to overthrow the election and defy House request to then testify about that very same topic. And now the FBI has come to his door and hit him with a new criminal grand jury subpoena, he says.

And that bears down on his refusal to cooperate with the House subpoenas that have just been sitting there. And so this is the first update since Bannon, with Navarro facing now, not a trial yet, but a criminal experience, which means the DOJ is involved and may indict him for his defiance. It`s all building now as the DOJ is demanding he separately face a grand jury as soon as Thursday and provide prosecutors with those records about 1/6.

That`s a big deal. This is getting tougher on Bannon and Navarro. And we do not know if others have also been subpoenaed like this, if those calls to the DOJ to do more were potentially coming as it was already confidentially doing more. We do know that a federal grand jury was in place and has subpoenaed some people in Trump`s orbit. "The Washington Post" reported on that in March.

Now why is this specific news coming out now? Sometimes you get a scoop, a new development, you wonder, why are we hearing this? Or what are the sources? With the grand jury, you may remember from the Mueller probe, the sources are confidential because the process is supposed to be. But I can actually tell you exactly why this is happening right now tonight.

It`s because of Navarro who has filed his own new separate civil lawsuit today tackling some of these issues and in it, he discloses this new subpoena while arguing that he believes he should have executive privilege.


He also likens cooperation with the government to betrayal. And what about those majority of Trump witnesses who did testify, including Trump`s children? Well, he actually says that was cowardly of them.

Now, let me tell you, Navarro has the right to challenge this in court. It`s in court where his claims can be rejected or accepted. He has the right to defend himself. And we try to report fairly and accurately on all of these cases for you.

I can tell you accurately it`s a fact that Navarro is representing himself. He doesn`t have some fancy MAGA-allied lawyer. And I can tell you he does not have a formal written assertion of privilege from Trump, which is what he keeps invoking as the reason he can`t talk to the government.

Those two facts do raise some questions about how much this fits into other Trump strategies and how much this is a person who publicly advocated overthrowing the election who may be just going rogue. Now legally, filing this kind of civil suit does not usually impact an open criminal probe, which is what Navarro apparently faces.

And then there`s one other legal and logical tension in this case. It`s something the House actually cited in his contempt vote and something we`ve reported on here in our work because the House also cited Navarro`s interviews, including on this program, for what he says he did.

And that brings us to something that is really curious about all this, something I don`t think anyone would have predicted a couple years ago or on the day of the 6th, which is that you have someone who worked for Trump up until the end of his tenure, who`s letting people into the White House and was pushing to overthrow the election, who`s claiming now that he`s doing all of this, this big legal fight with real stakes because he must avoid discussing a supposedly privileged plan to overthrow an election, a supposedly privileged plan which Navarro has talked about over and over and over, telling us and you and the world about how they were trying to overthrow the election.


PETER NAVARRO, FORMER TRUMP AIDE: We had over 100 congressmen and senators on Capitol Hill ready to implement the sweep. We were going to challenge the results of the election in six battleground states.

MELBER: Do you realize you are describing a coup?


MELBER: Why risk a legal battle or going to jail to refuse to discuss them with the committee under oath?

NAVARRO: The president has invoked executive privilege. It`s not my privilege to waive. Other than that -- stop right there, Ari.

MELBER: Do you understand you`ve already waived it by discussing it? They want it under oath. And number two, finally, Peter --

NAVARRO: That`s not what happened. No, no, no.

MELBER: Finally, Peter, are you prepared to risk indictment for defying a subpoena?

NAVARRO: I`ll stand tall on this.


MELBER: If by tall he means continuing to defy the House subpoena, well, that`s what he did. And that alone has not worked out well for some of these Trump veteran as we show on track on the scorecard. But continuing to stand tall against federal prosecutors is even harder. They have much stronger tools than Congress, and their authority does not change one iota with any election, and that is where Navarro is standing now.

I want to bring in Watergate prosecutor Jill Wine-Banks and "New York Times" magazine legal writer Emily Bazelon.

Jill, your view of the significance of this newly disclosed federal grand jury subpoena and Mr. Navarro`s claims?

JILL WINE-BANKS, FORMER WATERGATE PROSECUTOR: Well, let`s start with Mr. Navarro`s claims because they are ridiculous. There has been no invocation of executive privilege, and the current incumbent, who could do it, who`s the one who really has the power, has said, no, I`m letting these people testify because it`s too important to the American people. So there is no legitimate claim.

I have to wonder -- you mentioned, he`s representing himself and you are correct, he is. He says, it would cost me $100,000 to have a lawyer of my own, and so I`m going to represent myself. Maybe the reason is that no lawyer is willing to go in and state a totally fallacious reason for his not testifying, that maybe the disbarment of some lawyers and the threats to others is getting them to say, well, I can`t do that anymore. And so maybe that`s why he doesn`t have a lawyer here.

In terms of whether this is a big deal, it is a big deal.

MELBER: Well, let me pause you on that because you raise an interesting point and one not covered in our introduction, which is why we come to our experts. You raised something we hadn`t gotten to which is that everyone has the right to represent themselves, what they call pro se, and both in law and here as journalists we do not make any assumptions about the strength of their case on that fact alone. They have that right.


However, we can draw reasonable inferences, as you say, not prejudicial, but when someone has means and has political alliances whereby unlike most people who might be dealing with a -- you know, most people, they go to work, they tell you you`re subpoenaed over something or you got to go be a witness, that`s a lot of money right there. That`s a reason why some people struggle in civil lawsuits, right.

You`re explaining that unlike most people he has ready access to certain types of lawyers, he is a man of some means, and that you interpret this as the kind of top flight conservative lawyer he might want at this juncture, might be harder to get because they might be talking him out of some of the very claims he makes?

WINE-BANKS: It seems to me that that is a possibility. We don`t know of course. But you know him almost better than anybody because he`s been on your show and has, as you noted, said things on the show that showed that he`s already waived any kind of privilege that he might have had because he has spoken publicly about it. So there is -- there`s just simply no there- there. He can`t claim privilege. He doesn`t have one.

And Trump, who he says has given him this obligation not to talk, has not actually done that. There`s no evidence that the former president -- one, of course I`m saying he doesn`t have to power to invoke the privilege, but even if he did, he hasn`t done it, so there is no privilege, and it would be foolish for a lawyer to make an untruthful statement to a court that could cause that lawyer to lose their rights to practice law.

So I think that is definitely a possibility. And I think it is a big deal because he was a direct employee of the White House, and he is now involved in being subpoenaed to testify at a criminal case. It also confirms that the department is actually proceeding with a criminal investigation. I wish they would act faster. I am one of those people who --

MELBER: Right.

WINE-BANKS: Unlike some of my sisters-in-law, I think it`s too slow, that this should have been done sooner and that the indictment of him for the past refusal to do the subpoena that he`s already had from the House is one that he should have been indicted for.

MELBER: Right.

WINE-BANKS: There`s nothing that stops him from being indicted for not cooperating now --

MELBER: Right, he could be --

WINE-BANKS: -- with the grand jury. They`re two separate crimes.

MELBER: He could be hit for that, and this is a new grand jury subpoena.

Emily, your thoughts on all of the above?

EMILY BAZELON, LEGAL WRITER, NEW YORK TIMES MAGAZINE: Well, the timing here is interesting, too, because the original subpoena which we didn`t know about before is from February and so Navarro was making a big deal of the fact that the FBI knocked on his door at the end of May, but you can imagine that what happened in the interim was that he was not cooperating and stonewalling. And that, you know, inside the committee, and also now we know in the Justice Department, that was viewed as a problem.

And so, I mean, absolutely it is true that it is a bigger deal to have the FBI come knocking on your door than to have, you know, the January 6th Committee frustrated but not having the same kind of clear law enforcement powers to do something about it. And so, you know, all these are really good points about the stonewalling and how implausible it is, the reasons Navarro is giving for it. But the kind of bottom line here is, like, is he going to testify or not? And certainly there is a greater incentive for him to do that if the FBI is coming to see him.

MELBER: Right, and as you say, the House ultimately refers -- that`s why we`re showing the calls by even House members saying, OK, act on what we referred. The DOJ must do that independently. If they think that it`s political, if they think it`s Democrats going after Republicans or vice versa, for political reasons, they don`t act. They shouldn`t act. But if they think that someone`s just defying a legal subpoena, they have a duty to act.

As for the wider political theatrics here, which I don`t think we can completely ignore, Emily. Let me read a little bit more from -- again, this is Navarro`s own words, pro se. You don`t have sort of any euphemisms or legal jargon. It`s just him. And he says, "If an incumbent can strip a predecessor of executive privilege," his view in this filing, "imagine what will happen to Biden and his advisers if Republicans win the White House and the House in `24."

And he says, Emily, if I`m not dead or in prison, I will lead the charge. It`s a bit like a flip of what 50 Cent famously said, Emily, I`m sure you`re familiar, if I`m not rich by 26 I`ll be dead or in jail. This is, if I`m not dead or in jail, I will enact political retribution on my opponents.

I mentioned he has the right to file what he wants. But everyone else has the right to accountability for it.


What do you think of that kind of threat? Is it over the line? Is it helpful to him legally? Does it telegraph some of the politics here?

BAZELON: I mean, he has really threatening legal retribution, not that he would have to direct power to decide that, presumably he`s not going to be the attorney general, although who knows. You know, it`s bluster. Right? I mean, it`s a typical political statement -- this will come back around to bite you. And who knows, it may turn out to be true, right, because we don`t know what`s going to happen next and what kind of actions a future Justice Department would take, how bound by the rule of law they will be.

In the end, the Trump Justice Department hung in there for the rule of law, but it was kind of by a thread. So it`s not that I don`t think there`s anything to such a threat, but it really is bluster, and you know, to say that I don`t have to abide by this subpoena because we`ll come and get you the next time, there`s just -- it doesn`t address the issue at hand, which is this is a legitimate criminal subpoena and he has to decide whether to respond or not.

MELBER: Yes. All fairly put on a big development. And I appreciate both of your precision on the timelines and the details.

Emily Bazelon and Jill Wine-Banks, my thanks.

Coming up, we are going to look at the action on gun control. Che Komanduri, one of our friends, digging into both the plan and politics of solutions.

Later, why is Ron DeSantis losing cases over free speech? Well, the Florida governor has a big legal problem. I`m going to get into that. It`s my special breakdown where he was shredded even by conservative judges.

And then by the end of the hour, remember John Durham? Wait for John Durham? We`re going to hear all about John Durham? Well, we have heard from John Durham. A huge flop in his first big case. We have that by the end of the hour.



MELBER: We`re tracking breaking news in the shooting of Robb Elementary.

Uvalde police and the local school district are now refusing to and no longer cooperating with the wider Texas probe of the actual police response to this shooting massacre. This is reporting from ABC News and multiple law enforcement sources are cited. NBC has not separately confirmed this.

It comes within a week of the Texas mass school shooting. Those funerals beginning today. Here`s just some of that difficult process, as a story that many left behind over the weekend continues to affect all the people`s lives in that community.

As for action in Washington, there is a bipartisan group of senator who say they are meeting -- this is a virtual meeting today -- about potential action. The House Judiciary Committee will hold an emergency hearing this week, Thursday, and the president says that he believes that the lead negotiator for the Republicans, John Cornyn, and Mitch McConnell himself will be, quote, "rational and might even compromise."

Now that could be something that you don`t read literally. This president in this moment trying to give a lane, an option, something, to get something through the Senate if he can`t get the 50 votes to change the obstruction rules. But again, we have to look at what`s actually being said and done. Here`s McConnell today dodging questions about gun laws and citing other issues.


UNIDENTIFIED REPORTER: Senator McConnell, got any comments on the gun control issue going on right now? Because you had said possibly that you were open to something.

SEN. MITCH MCCONNELL (R-KY): Yes, what we`re doing, we had -- led by Senator Cornyn and Senator Murphy on the Democratic side discussing how we might be able to come together to target the problem, which is mental illness and school safety. We`ll get back at it next week and hope to have some results.


MELBER: Now, there you have it. He represents his constituents. He is saying where he stands. It`s a long ways from the hope of any type of gun or ammunition regulation or background checks which go to who can get there. When he says mental illness and school safety it`s really other issues and there may be things that can be done on those issues. It`s not to rule those out, but how can two sides discuss meeting and meeting in the middle when they don`t agree on the topic at hand?

Because many people who don`t look at this politically but just look at it as safety policy are of the view, and most of the American public is of the view, that there are steps to be take that would reduce the access to weapons of war and reduce the risk of this kind of mass murder. So either you`re meeting about that or you`re not.

Now, the pivot, this is part of the politics. On the one hand it`s a sign that saying nothing or demonizing the other side for demanding action doesn`t work very well right now. That was the NRA playbook. You`re not even allowed to discuss it. That somehow that disrespects the victims. Now we see pivot, pivot, pivot. Take all of this from last week.


SEN. TED CRUZ (R-TX): Don`t have all of these unlocked backdoors. Install bulletproof doors and locking classroom doors. The most effective tool for keeping kids safe is armed law enforcement on the campus. What stops armed bad guys is armed good guys. Absent fathers, declining church attendance, video games.

If you could wave a magic wand and eliminate all firearms in America, there would be substantially more murders. It`s never been about guns.



MELBER: "It`s never been about guns." That`s one view of the gun violence epidemic in schools. Of course if you take away the guns, well, you just have schools and you might not need all of this talk about locksmiths and special locks and special doors, like kids don`t go in and out of schools.

Now, that was the top senator for the state of Texas that`s home to this horrible tragedy. But this grinds on in other states. Over this long weekend there were 12 mass shootings. Some of them not, quote-unquote, "large enough" by the grim body count to make that national impact that that shooting did. So what do you do when you don`t have agreement on the topic let alone the solution? And is there a lane here for those who are solution oriented?

Well, we have Obama veteran Chai Komanduri who thinks a little different, if I may so myself, and he`s going to think different with us when we`re back in one minute.



CRUZ: Don`t have all of these unlocked backdoors. Have one door into and out of the school.

JIMMY KIMMEL, LATE-NIGHT HOST: I see, so this wasn`t a gun problem. This was a door problem. This is -- you know who may have a problem with that? The fire department might have a problem with that. What a stupid fake idea.


MELBER: Now we bring in political strategist Chai Komanduri, a veteran of several presidential campaigns, including Obama`s. Welcome back.


MELBER: You know, we play that because this would be funny if it wasn`t so serious, although there was a Russian dissident who told us in the hardest times, you laugh through the tears. And certainly people are laughing at Ted Cruz`s claims and ideas. It`s a word salad that seems to reflect some measure of progress from people who respond to this by saying there should be action. It used to be that was bad, as I mentioned.

Now even the right says there should be action, but it`s got to be focused on anything but. And so I`m not here -- you know, we love the doors around here, Chai, but I`m not here to talk to you about door reform. I`m here to talk to you about gun reform. And you`ve been thinking about this and working around Democratic campaigns. What do you see as the key issues?

KOMANDURI: Well, you know, I hate to say something negative about President Biden`s optimism about a deal, and I do think Senator Chris Murphy has been heroic in trying to get a deal, but the reality is Mitch McConnell simply will not allow a deal. He will not allow something to get through the filibuster and allow a commonsense gun reform to happen.

The reason is simple. Guns are intrinsic to the GOP narrative. Guns basically go to their narrative. That there is a red state culture that is under siege by racial minorities, by sexual minorities, by gender -- by women, et cetera. They are coming after you, the lonely white male rural voter. And you need your guns, you need your assault weapons, and the assault weapons are symbols that the GOP will allow their voters to fight back against the siege.

Now, will Mitch McConnell give up that narrative because for commonsense, for something that makes a lot of sense? For the sake of, you know, children past and present and future? No, I don`t think so. I think that they are too tied to the idea they have to win elections. And they believe that guns are the pathway to winning elections. It allows them to frame a narrative that, let`s be honest, has been extremely successful for them for many, many years.

MELBER: Right, so you say that. Let`s look here on deaths in America. You talk about, what`s the government`s role to protect people, be that safety and law and order, just fundamentally. We can put this up, police killed by gunfire, 64. That`s the threat they face. U.S. troops less than that right now, given where the footprint is.


Black Americans killed by police 139. All Americans, over 1,000. Children killed by guns when you widen out even farther, you see that while we cover this in a certain way, and I`m I`ve been trying to be careful about where the press tries to do a good job and maybe we fall down.

But think about these different issues Chai and look at how many children, our minors and younger are, you know -- elementary school face this. Is there some fact-based way to galvanize people around that when you talk about suburbs and swing voters?

CHAI KOMANDURI, POLITICAL STRATEGIST: Look, Ari, it`s not about facts. The facts are on our side, it`s about culture. The reason that gun reform has not happened is gun control is tied to cultural liberalism. There is a sense among rural Americans, that this is an urban elite value that is being enforced upon them. The GOP speaks directly to that cultural war.

This is why when you pull gun control measures, individual measures are very, very popular. However, gun control overall, particularly in states that Democrats have to win, to control the Senate, to have the Electoral College, to win the House. Gun control overall, is unpopular. Now, how do we change that?

Well, some people may not like me saying this, but we need to learn from our opponents. We need to play the long game. The Republicans did that on abortion. They did that on reproductive rights. They played a very long game over the course of 50 years. What they did is they focused on states, they focus on state legislators, they figured out how do we talk about this issue in a way that cuts the other side.

How when they`re distracted by issues like the economy, can we get judges on the bench, they played a very cunning, very deceptive, long game. Now, I`m not saying that we need to be deceptive like that. But we do need to think past, you know, the next election, the next polling cycle, the next news cycle, ever since I`ve been in politics. That`s all Democrats talk about, what are we going to do before the next polls come out?

That`s our mindset. The GOP doesn`t think that that way. They think in the long term, they think not about the next election, but the next decade, the next generation. And that`s where we have an advantage. Young people don`t like guns, they have been raised in the post-Columbine world, where they have been terrified by mass shootings that continue to happen. That is where our future lies. And that`s the type of strategy we need to forge to sort of move this issue forward.

MELBER: Really interesting. You raised several intersecting issues there as well as the generational piece. This generation, which deals talking about mental health and anxiety, which deals with all that, but also is doing school shooting drills all the time. And how do you do that with hearts and minds, and you say it in a way that I know, is different than some of the D.C. Beltway democratic discourse. And yet, that`s why we come to you. So, Chai, thanks for being here.

KOMANDURI: Good to be here, Ari.

MELBER: Absolutely. Coming up, we have two other stories that we haven`t hit. Really, for days, probably most of last week, there big new developments. Bill Barr`s big bid to re-litigate the Mueller probe. It failed in court today. We`ll explain but first coming up next, Governor Ron DeSantis is against freedom and the First Amendment. I`m not saying that. That`s what a court said in issuing a huge rebuke to him. We`ll explain. Next.



MELBER: During the major legal developments shutting down some of Governor Ron DeSantis` efforts to control and punish free speech. DeSantis has been attacking Americans` First Amendment freedoms with his government power. It is classic big government overreach a politician trying to use their power to punish speech. They oppose a reward speech that benefits them.

DeSantis has done this with new laws that target certain speech, like when people or companies say words that favor LGBTQ equality. He`s also done it with new laws that try to cancel the right of media, press, and social media to decide what to publish your posts. Some of it verges on a kind of neo-McCarthyism.

And under law, some of the worst ways that government can violate your free speech is by abusing power to pick sides, to pick a viewpoint. So, DeSantis is wrong about the First Amendment, and one of his most sweeping efforts on this front was wrong, illegal, and violates the First Amendment. Now, I`m not telling you an opinion here. I`m reporting the current law because DeSantis just lost.

A key appeals court ruling that found this law that he had pushed in past violates the First Amendment. He was knocked down. The judges, which include three Republican appointees, one appointed by Donald Trump. Just ruled with the law says that DeSantis was violating the core First Amendment principle that the government can`t tell a private person or entity what to say or how to say it.

These debates can be tested through tough cases. Some of America`s free speech precedents turn on the rights of neo-Nazis to march and the competing rights of people to speak out against that, or the rights of people to spread lies or hate speech that doesn`t hurt people. And the rights of others to speak against that.

So, under law, those neo-Nazis on your screen had a right to speak in public in Charlottesville as long as they did not manage or attack anyone. And there was some violence that day but the people who were just speaking can speak and other people have a right to oppose them. To decide not to feature that speech, say in your church, or in your publication, or in any private platform, which reflects your speech.


DeSantis in Florida, Republicans were trying to change that, trying to override that approach and force social media companies to carry the speech of those who they disagreed with and their policies. The judge rejected that noting that private actors have First Amendment rights. DeSantis` goals were political.

He wanted to try to get people like Donald Trump back on platforms where Trump had been banned. And DeSantis just lost this case, as I`m telling you. But the larger legal point here also goes to a principle. The First Amendment bars the government for making these decisions for everyone else. And DeSantis in reality, not just in rhetoric, but in the way he was trying to use his power in Florida is against that kind of free speech, your free speech.

And he wants to use the power that he`s amassed as a governor, to have people like him in government decide these things instead of the people or instead of people running a magazine, or a social media company. So that not only violates the First Amendment, it really violates any notion of small government or traditionally conservative principles.

That would seem to be a problem for someone to claim someone like him who claims he`s on the right-wing, conservative side of his party. But that`s where DeSantis also learned from Trump. Instead of engaging this debate, this Harvard law graduate, well, he`s just lying about his position. And he`s just saying he`s for the opposite.

Remember, everything I just told you about what Republican judges found about his attacks on freedom of speech and freedom itself. And now he`s betting that if he has the right mix of lies, rhetoric, and buzzwords about wokism, it will drown out his actual First Amendment loss in court.


GOV. RON DESANTIS (R-FL): We were the first big state to legislate against big tech censorship because they want to silence us. You have to have protection for the First Amendment rights of people. A free society requires the ability to have robust discussions about issues of public importance. This is not how a free society should operate.


MELBER: It`s a lot of freedom taught by someone who was just smacked down by a court for violating that literally, first freedom. In our founding document, the First Amendment. I`m joined now by former chief counsel, of the House Judiciary Committee, Julian Epstein, CEO of the Law Media Group. What do you see here in his loss, and him being a Harvard law grad, a loss he expected?

JULIAN EPSTEIN, CEO, LAW MEDIA GROUP: I think sort of some of this is showboating and sort of right-wing virtue signaling, and sort of the grievance effort by many on the right to feel that they`re sort of, you know, sort of culturally and politically under siege. So, I think a lot of this is politics for him without any question.

His argument is just to do justice to it is that social media, but companies have become so big and so powerful, that they are speech, and that -- furthermore, they are so under pressure by government officials, particularly Democratic lawmakers to sort of do something about sort of the QAnon and the Trump allegations of election fraud, that they have become an arm of government.

I don`t think those are good arguments. But given what`s happened in Texas, where you have a similar statute that gives people a private right of action if they`re kicked off social media, that`s been stayed now. I think in the Fifth Circuit. I think this is likely to go to the Supreme Court. I think your analysis is that analysis that`ll hold in the Supreme Court.

But that isn`t to say that there isn`t an argument that I think we`ll probably gather some credence with a couple of the justices, namely that they are so big, social media companies are so big, that they have become speech. And so long as the speech that someone is trying to protect is protected his first amendment speech is not yelling fire in a movie theater, kind of a thing, that there should be some protection. I don`t think the argument will win. But that`s sort of -- I think (INAUDIBLE) for the loss.

MELBER: And you raise, you raise that facet, right? Because there are areas where you say, well, if it`s more like pipes, or the internet`s, you know, common pathways that might be different. Yes. But then you look at what he does against Disney. Disney didn`t do anything. It just said something about equality. And then he said he wants to use his power. Again, I call it big government power against speech he doesn`t like it. How did the Republican Party find itself in that spot on the spectrum?


EPSTEIN: Well, he would argue if he were on the show which I don`t think he`s likely to come on. He would argue as (INAUDIBLE) taking away a special tax privilege as they were -- as Disney got out and became politically active on an issue he disagreed with. I think it feels retaliatory to me. But I`m actually here in Florida now.

And there`s more popularity for that than you would actually believe. Because sort of the gender, I think the gender issue in the schools has really gotten out of hand on both sides on the left, and on the right. (INAUDIBLE) stop having sensible conversation about what we have to do to sort of --

MELBER: Attacking free speech is often popular if you find the right wedge. The issue there is whether he should use the state for that purpose. I`m running out of time, final sentence, final button-up thought.

EPSTEIN: Well, final thought is that I think there -- we have to be careful on the left about sort of views that are clearly out of bounds -- space lasers, and QAnon theories, and sort of, you know, views that we don`t like, you know. I am pro-choice, I`m pro-immigration, and I`m pro-police reform. But if you are -- if you are pro-life, it doesn`t make you anti- women, if you are pro-border security, it doesn`t make you racist.

If you`re a Princeton professor who questions some part of the anti-racist movement on campus, it doesn`t mean you should be fired. So, I think one of the things that`s important to keep in mind here, why we should be careful about sort of -- and this isn`t just social media, that`s -- this is the media generally, this is sort of our public square, this is where we live and breathe.

I think we have to be careful to sort of -- make sure that we are not using this sort of intolerance that we are developing for views that are completely obnoxious, like space lasers, and sort of just shutting down completely shutting down the other side, because I think what`s happening is that is so toxifying the environment and this notion, I mean, I think conservatives and liberals both have this idea that we just live in completely different worlds. There`s no debate left between us. And I think that kind of thing is just making us all dumber.

MELBER: Well, and you raise -- you raised several of the issues that conjoined with this, right? And which is that there is room and across the spectrum, for people to make sure they`re hearing each other. That`s why the First Amendment matters.

He lost this case, but as you say, he may be appealing to other notions that have a route in popular society right now that needs some dialogue, although he`s losing because he`s done that in a way that the court says was demagoguing, more than being free. Julian will continue the combo --

EPSTEIN: We need more encouraging debate, not debate DeSantis style.

MELBER: There you go. Julian, thank you for being here. Tricky issue fast segment. Appreciate it. We`re going to fit in a break. But why did Bill Barr`s prosecutor lose in court? I`ll tell you when we come back.



MELBER: A major court loss today for the special counsel appointed by Bill Barr to re-review the Mueller-Russia probe. Trump-era Special Counsel John Durham just lost the trial of Clinton lawyer Michael Sussmann. Durham went hard at him focusing on possible technical inaccuracies and how that former Clinton lawyer described himself to the FBI.

They wasn`t accused of a major felony relating to the Russia issues like hacking or stealing something but rather accused of lying to the FBI. But it didn`t stick. The jury finding him not guilty today. All of this growing out of that probe started by Trump-era DOJ officials, which was basically trying to turn the tables on the Mueller probe.

To find something wrong with the investigators or the evidence trail. Durham stayed on the job in this new Biden administration because unlike all other U.S. attorneys, and I bet you remember this, special counsels can only be removed for specified causes, meaning Durham had the same legal protections as Bob Mueller.

Now prosecutors when the vast majority of cases that go to trial. Mueller was eight for eight in his total criminal convictions. Well, Durham, not keeping up. This now acquitted defendant stressing he told the truth, and that the jury saw that.


MICHAEL SUSSMANN, CAMPAIGN ATTORNEY, HILLARY CLINTON: I told the truth to the FBI, and the jury rec -- clearly recognize that were their unanimous verdict today. Despite being falsely accused. I`m relieved that justice ultimately prevailed in my case.


MELBER: Durham did get one guilty plea so far from a former FBI lawyer who admitted to altering an email that was used to get warrants against a Trump advisor. Now it is possible Durham has other cases to come or even larger cases. But this is the case that he started. The first case he took to trial after years of hype by Donald Trump and major expectations crusades on the right. Well, it is collapsing today.

And for more on the contrast to Mueller consider that he won his first guilty plea and a whole lot more when he went to trial. 34 indictments total, there are still some of those cases outstanding because there are Russian intelligence agents at large. But Mueller didn`t stop at any obscure lawyers. He convicted the number one person on the Trump campaign, Paul Manafort, on eight felony counts.

He convicted Trump`s longest-serving aide Roger Stone at trial. He convicted Rick Gates and Michael Flynn because they pled guilty to false statements the same charge acquitted today. Flynn later did try to retract that plea. So today at trial, John Durham is zero for one. Again, in an arena that typically favors prosecutors, as juries tend to believe the FBI when it says some random person or Politico was lying.

Here they acquitted the defendant. And there`s a larger point, evidence and facts can still matter. If Trump and Barr thought they could just get where they wanted by lying about this in public, they might have stopped there. But the whole plot was actually to try to find the actual goods.

The evidence to win in court. But in court at least a fair court the facts can matter and the people, the jury has the final word, and today that proved very bad for this Trump-Barr theory of the Russia case. It`s an update I wanted to share with you and we`ll be back with one more thing.



MELBER: We were covering free speech on the program tonight including your right to speak out and no more fitting way as we look at DeSantis losing a case about social media than well, sometimes using social media. You can find me @AriMelber on social media or Both great ways to connect and add Ari Melber on any of the platforms if you use them.

You could tell me do you think the Florida courts were right to rule against Governor DeSantis or wrong. And what do you think about Julian Epstein`s point that some of this stuff is getting as he put it out of hand, we could talk about it. Thanks for watching THE BEAT. "THE REIDOUT WITH JOY REID" starts now.