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

Guests: Libby Case, Maya Wiley, Amy Kapczynski, Josh Gerstein


QAnon supporter and who support the January 6th rioters won primary Republican House race in Ohio. JD Vance was a former self-proclaimed never Trumper but reversed himself and sought Donald Trump`s endorsement to the Senate primary race in Ohio. The GOP emphasizes the leak over a substance in the Roe case. Yale University Law Professor Amy Kapczynski joins THE BEAT with Ari Melber to talk about the GOP outrage machine kicking in over the leaked SCOTUS draft.


NICOLLE WALLACE, MSNBC HOST: Person to ever hold the position of White House press secretary. President Biden said earlier today that Karine will bring experience, talent and integrity to her new role. You`ve all seen her on our show over the years. She`s always been clear-eyed and honest in all of our conversations, and we know that`s what she brings to her job as White House press secretary. We look forward to watching that transition to White House podium.

Thank you to all of you for letting us into your homes on this Thursday. We are so grateful. "THE BEAT" with Ari Melber starts right now.

Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Nicolle. I don`t know if that was a formal vote of confidence, but it comes with a lot of experience on your part, so I think it means something.

WALLACE: Well, first of all I meant to say this and then I was excited about Karine. So Karine, when she was sharing her insights here had that remarkable sort of instinctive event where she jumped in front after a protester, and now Vice President Kamala Harris. So she has the instinct to sort of protect which is important if you`re anyone`s spokesperson.

But I wanted to tell you, you did some remarkable shows in front of the Supreme Court. And it`s a floor down. I raced down the staircase to not miss the top of them over the last two days. Congratulations to you.

MELBER: Well, thank you, Nicolle. It was interesting as you know. You see the spontaneity of that. It`s not a planned event, it`s not a press release. We can get into the -- all the pyrotechnics of the leak, but we just saw people gathering there, dealing with what is our self-governance.

WALLACE: It`s amazing.

MELBER: Yes. Thank you, Nicolle, and I`ll see you soon.

WALLACE: Amazing. OK. Take care, my friend, have a good show.

MELBER: Appreciate it.

Welcome to THE BEAT, everyone. I`m Ari Melber. We also have Michael Steele here, and I`m going to tell you why. Because right now we`re getting into how these new primaries this are advancing what looks like a takeover of the GOP by conspiracy theorists and January 6th rally attendees.


JR MAJEWSKI (R), OHIO HOUSE CANDIDATE: I decided to raise as much money as I could within the three-day period to take as many people to D.C. as I could.

I`m the only candidate in this race that the president has admiration for.

Out of the groups like Antifa and BLM, we`re funding riots and fueling fires to burn down our cities, while left-wing liberals pay their bail.

I think the election was stolen personally.

And I`m willing to do whatever it takes to return this country back to its former glory. And if I got to kick down doors, well, that`s just what patriots do.


MELBER: You can decide for yourself who`s a patriot, but you`re not just looking at a random activist. You are now looking and listening to a nominee for the Republican Party. An admitted January 6th rally attendee who just won the primary to be the Republican nominee for a key House seat in Ohio. He`s also expressed sympathy and support for the radical QAnon conspiracy theory which features belief systems that there`s some sort of Satan-worshipping Illuminati running parts of the government or the country or the progressive wing of the United States.

His name is JR Majewski. You can see him on election night just this week celebrating the primary win. He`s also been seen wearing a shirt that brandishes a QAnon symbol as well as Donald Trump. He`s been on FOX News, again deliberately sporting a QAnon shirt. Seen here. This is in front of a giant sign near his yard. At least 36 QAnon supporters are running for Congress right now. Majeski has I should note at times said that he denies supporting QAnon. There may be political reasons. I showed you the T-shirts and now we`ll show you the receipts.


UNIDENTIFIED MALE: The special guest, JR Majewski. We`re going to have some candid conversation around the drops that came in earlier.

MAJEWSKI: It`s very mind opening and it broadened my horizons substantially, just getting involved in the movement, getting involved with what everybody is doing and just seeing, you know, how deep it goes. It`s breathtaking, to be honest with you.


MELBER: The internet is a record, so we have that record. Now this individual faces off with a Democrat, Marcy Kaptur. She`s the longest serving woman, actually, in the history of the House, and it`s a district that was once more Democratic. Experts see it as a tossup, partly due to gerrymandering, which to be clear, both parties have done gerrymandering, but this is a particularly strong Republican version that makes it a close race or close competition based on just the voter registration.

Majewski was at that Stop the Steal rally. I should note that you see him here, big supporter of Donald Trump. He has said publicly that he did not enter or breach the Capitol. He has however raised money to bring Trump supporters to the Capitol. He has endorsed, as seen there, aspects of QAnon, and he is the new face in Ohio of the Republican Party, which brings us to someone who used to run the RNC, who supported Joe Biden the last election, Michael Steele.

Welcome back. I have to remind people, that`s not just an activist or something. That`s the nominee.


MICHAEL STEELE, FORMER RNC CHAIR: Yes, no, it is where the party is right now. And there are a whole bunch of those who were endorsed by Trump in Ohio alone, let alone what we`re going to see roll out over the course of the spring and summer into August in these primaries which is why Mitch McConnell and a number of leaders in Washington are very worried about what was once a really well-paid yellow brick road to winning in November.

Now pockmarked by candidates like Majewski and certainly now the Supreme Court narrative, which will transform the playing field even further because folks need to keep in mind, what Republicans have also looking over their shoulders not just abortion but the affirmative action rulings by the Supreme Court along with a few others.

So in terms of having that space carved out to run right through November, candidates like the one you just showed are really problematic. And Trump, meanwhile, keeps endorsing more of them. So the party will find itself running -- unless it`s a heavily gerrymandered district, that will almost certainly guarantee the win, those seats now that they need for pickups become more problematic when you`re running up against a QAnon candidate and the party has to figure out, do you lean into that or run away from it?

MELBER: Yes, and it`s interesting because I`ve seen it said by some on the right that it`s opponents of the GOP that are obsessed with January 6th, not the party. And yet the fact that January 6th is becoming a kind of litmus test for how much you embrace the big lie, the big lie revolves around what happened that day. The alternate or lying version of events, and that is against what, at least at the time, McConnell and McCarthy saw.

You could say they were na‹ve. You could say they`re hypocrites for changing, but it`s notable that after everything we went through in the Trump era, on the night of the 6th, they looked out at the criminal insurrectionists and saw a problem, not a voting bloc. Take a look.


REP. KEVIN MCCARTHY (R-CA): The president bears responsibility for Wednesday`s attack on Congress by mob rioters. He should have immediately denounced the mob when he saw what was unfolding.

SEN. MITCH MCCONNELL (R-KY): There`s no question, none, that President Trump is practically and morally responsible for provoking the events of the day.


MELBER: Michael?

STEELE: Yes, so you`re absolutely right. They saw a problem and not a voting bloc, but then, subsequent leaders weeks later, they`ve tried to leverage that problem into a voting bloc. They tried to leverage that problem -- that voting bloc away from the problem. So in other words, you`re looking there and you`re seeing this reality. Oh, my god, look what this man has done. And you heard the plaintive cry to, you know, stop it and to condemn it, but then the politics kicks in.

And it becomes, all right, there`s not much more we can do about that. How do we save the win? And the way you save the win is recognize you can`t afford to have any of that Trump base peel off in close races, right, and you can`t have any of that Trump base turn against your incumbents in races where you need them and only they alone can hold those seats. So that`s where the --

MELBER: They alone, yes.

STEELE: A party corrupted by the politics makes those kinds of calculations in the face of an insurrection and leads us to where we see McConnell quietly, sheepishly ignoring certain things, and McCarthy just outright back flipping in the opposite direction.

MELBER: Yes. Michael, stay with me. I want to go wide now. That`s one district in Ohio. But statewide, you had JD Vance surge at the end and win. He was a, quote, "never Trumper," which begs the meaning of the word never, ultimately turning to a Trump sycophant, getting the former president`s endorsement.

There`s now revelations today about his vulnerabilities because he still faces a big general election, including a super PAC that supports Vance, discussing the problems that he had, including reporters discovering that the documents warned Vance positioning himself as a critic of big tech, but his career has been heavily financed by the leaders of big tech, including names like Bezos and Schmidt which are an anathema on the right.

It also warns that claiming the mantel the working class would be difficult when he admits his lifestyle makes him a member of the elite. Again, I`m show you something from the super PAC for Vance. He also came back around to a place that really helped him throughout the race, Tucker Carlson, and this was their exchange.



TUCKER CARLSON, FOX NEWS HOST: The rap against you was that you were a fraud. You know, JD Vance was skeptical of Trump. Now he`s all in on Trump`s agenda. My impression was they hated you because they suspected you were sincere. They could smell the sincerity on you and that was the threat.

JD VANCE (R), OHIO SENATE CANDIDATE: Yes, I think that`s exactly right, Tucker. In a lot of ways what this revealed is that you do have some very corrupt political consultants in the Republican Party who despise their own voters.

My candidacy revealed an incredible amount of corruption in our own party, and I think that`s one of the things that I do have to fight against, but we also have to fight against the corruption in our own party.

CARLSON: Yes. Honesty is the essence I think of what people want.


MELBER: "The Washington Post`s" Libby Casey joins us.

Libby, was that the problem, he was hated because of his deep sincerity?

LIBBY CASEY, THE WASHINGTON POST SENIOR NEWS ANCHOR: Well, you know. that Tucker Carlson clip is so important to show because we`ve all talked about how JD Vance had Trump`s support, but he also had the support of Tucker Carlson, and that goes a long way because it beams you right into the living room of Donald Trump. But also all kinds of other supporters.

He had something else. He had money from Peter Thiel, who set up this super PAC that threw a ton of money into this race. We`re talking $15 million. And that wrapped up, that trio wrapped up together is such a loud megaphone. So we can`t just look at the Trump support in isolation. You know, this reporting by Politico that you talked about, the PAC can`t touch the campaign. They have to be separate, right?

But they were putting all this information online, according to Politico, on a Web site where you wouldn`t know to look for it, Ari. You wouldn`t know to Google it. Michael wouldn`t know how to find it. But if you knew to search for it, you could access it. And that`s where Politico reports that this oppo research was located.

Now that oppo research didn`t really help his opponents. It didn`t help JD Vance`s opponents in the primary, but are there some nuggets in there that could ultimately help Tim Ryan? You know, it`s a question mark. It hits on things like his residency. He lives in a nice expensive home. He also has a home in D.C. It talks about his connections to big tech. These might be some things that Tim Ryan`s, you know, approach of trying to talk about working class values, talk about the labor movement, they might be some ways that he could hit JD Vance.

You know, another one I want to mention is his connections to China. Something that Vance has railed about. But his law firm worked on pharma issues and Chinese corporations. Pharma`s big, of course, because as we all know, JD Vance talked a lot about the opioid and drug problem that`s affected so many Americans. So we`ll see how far these nuggets of opposition research go. I`m sure there are some things that anyone competing against him, would Ari be aware of, but it`s interesting to trace back the path of where it originated.

MELBER: Yes. And Michael, Libby raises the points that go to what voters have to decide. Do they think they have someone who has a belief system of some kind and thus will govern based on that, and representation, that`s sort of what democracy is supposed to be, or do they have someone who`s so hungry for power that they will publicly abide by their own defenestration at the hands of the ex-blogger in Mar-a-Lago who may or may not get his Twitter back, because all they want is power?

We saw in two smart people -- I will say Mr. Vance and Mr. Carlson are both intelligent best as I can observe from afar. But we saw two smart people really struggle to explain in any coherent way why Mr. Vance has completely reversed himself other than this need to be more powerful than even a billionaire`s friend already is.

STEELE: Yes, I mean, all of those are incredibly important points for voters to assess in this race. There`s no doubt about it. I mean, the question is, is, you know, the price of gas more valuable than democracy? Is the rate of inflation more valuable than democracy? Is having, you know, someone who`s a sycophantic, you know, lover of, you know, a wannabe, you know, strongman more valuable than democracy?

And so voters have to make some very clear-eyed choices this November about the direction the country`s going. We`re just at the tip of this particular spear, and you know, Libby puts her finger on a number of elements that are important for folks to begin to understand and digest in the kind of people they`re sending to Washington, to their state capitals to represent them. And so, you know, do we believe the JD Vance from 2016 or do we believe the JD Vance of 2022?

What`s changed? Oh, you now want a job that has power associated with it, and the only way you think you can get it is to recant your statements.


Well, that says to me as a voter, you have no value to me because you don`t value truth, you don`t value integrity and honesty enough to stand firm against this wave of lies that are coming from the Trump world. So that`s the balance here, and, you know, you and I know, Ari, it`s in, you know, in a form of imbalance right now, and it`s going to take the people to correct that. But it`s on their shoulders because they get to pull the lever in the voting booth.

MELBER: Yes. Yes, and that`s what you see with the nominees out of Ohio and some other places. This is what the Republican Party is offering up. So it`s not your recent uncle`s party. It`s not even a highly obstructionist and partisan McConnell. It`s this, it`s what we`re showing people. And as you say and Governor Dean who ran the other party than you said something similar on this program last night, which is, it will be up to the voters.

I have to fit in a break. So I want to thank Michael Steele and Libby Casey for kicking us off here.

Coming up, we have a fact check on Republicans and this ongoing debate about student debt. Later, the teacher who says she was fired because of that Florida anti-speech "Don`t Say Gay" law. And we`re going break down why Republicans actually are not leaning into the story that Nicolle and I were just discussing, a draft opinion to overturn Roe vs. Wade. A 30-plus- year march by the right that now they don`t want the talk about, and the reporter who broke that story for Politico is my special guest tonight. Stay with us.



MELBER: There are a lot of different issues in America right now, but the economy, the inflation, and the student debt crisis continues to affect so many households, which is the context for Mitch McConnell`s attack on ideas or proposals to help people deal with student debt. The president, for example, has a plan that might forgive some borrowers, who basically earn less than $125,000 a year. McConnell says this is an elite bailout.


MCCONNELL: Instead of trying to help middle class families Democrats are cooking up massive bailouts for Ivy League graduates. You could hardly dream up something more unfair.


MELBER: Now that sounds, well, to some people unfair if you think it`s only for the Ivy League, a tiny minority of people who are in student debt went to Ivy League colleges. But if you think it`s that and you think they could use their Ivy League credentials to get a better job and pay for it themselves well, you can understand what he`s gesturing at.

Unlike some of the things we cover, this is a valid policy debate and he`s free to make those arguments. But what are the facts say? Well, let`s look for example in McConnell`s home state of Kentucky. Over 600,000 people there have some outstanding student loan bills. You total it up, it`s almost $20 billion. The average income there is about $50,000. Now translate that into what the debt load is, about $33,000. And most of those people were not at Ivy League schools.

A new study shows loan forgiveness would also especially address some structural inequities that affect low-income voters and communities of color, also in McConnell`s home state. Across the country, black graduates have 25 percent more student debt than white graduates. So, there are many crosscutting issues here. Most importantly, the Ivy Leagues are just not a big part of those numbers.

I`m joined now by Maya Wiley, who is now president and CEO of the Leadership Conference on Civil and Human Rights. And as Martin Luther King and so many others reminded us, those civil rights strongly relate to economic issues in America.

I`m curious your views here and what you think of the Ivy League references there? Is that a canard or not?

MAYA WILEY, INCOMING PRESIDENT AND CEO, LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS: It`s definitely a canard, and, you know, Ari, you already shared the most important fact that demonstrate that which is literally .03 percent of the people we`re talking about went to Ivy League schools. And you know, what`s so interesting to me about this is it actually ignores how vast a problem this is, particularly for over people who are 50.

Eighty percent of the growth in student loan rates were for people over 50 and for black people, as you have said. And a lot of that is for a variety of reasons. But if we just take -- let`s just take a black woman, right? Why is this such a problem for the black community? Well, for one point, black women make 58 cents on the dollar compared to a white man. That translates into five semesters of tuition.

So, so many people who are black have the take out more loans because they`re already low-income, they`re working hard, they can`t actually get through school without taking out debt, and that includes community college as well as four-year institutions. And after the great recession, many, many were going to for-profit institutions that were charging them ridiculous amounts of money that they couldn`t repay.

And so unless we`re starting to recognize that this is, one, a problem for all of us right, but that we`re also seeing that for some of us in communities, zip codes where the majority are black people, or for people over 50, we should care about everyone who`s over 50, who is, say, struggling to repay debt because they went back to school to try to make lives better.

MELBER: Right.


WILEY: Improve their economic opportunities. This is what education has represented in this country. It still does. We have a massive problem, and it`s called student loan debt, and we can fix it.

MELBER: Well, you know who else is over 50, Maya? I`m going to tell you.

WILEY: Laura Ingraham`s mother. Or you maybe, but Laura Ingraham`s mother who she brought -- I wouldn`t bring up, you know, her mother normally, but she brought her up in the debate. And shout-out to her, respectfully saying hello. But having brought her up and the generational difference is, she says, quote, "My mom worked as a waitress until she was 73 to help pay for our college. Even helped with loan repayment. Loan forgiveness is just another insult to those who play by the rules."

Now again, I mentioned this about policy debate, and I quote that because one can understand how Miss Ingraham and her mother might feel because there is this idea of you take out a loan, you pay it back. How important is it for this debate to also include the facts that companies and other entities can take out bankruptcy for those loans and often do, the former president benefitted from the bankruptcy laws and told everyone that that`s a good thing if you need it.

And yet under current law, you don`t have that option, so you`re saddled with this forever. Not to mention that someone of Miss Ingraham`s mother age would have a much, much lighter load than what young people are facing today.

WILEY: Well, you`re absolutely right, Ari. Like either we start to pay attention to how to give people relief from unfair debt or what we`re really doing is lining the pockets of corporations. But let`s just -- because I just want to unpack this notion that people are somehow undeserving and just scamming taxpayers. Because that`s simply untrue.

So let`s just take one example. Larry Hennings. This is a white man, Minnesota, decides to go back to school. Wants to go to law school. His wife gets cancer. He drops out. Well, he has a $60,000 debt. He pays back $53,000 of it, but he still owes $117,000. So tell me how that`s about scamming taxpayers? That`s about people becoming and falling victim to just unfair practices.

MELBER: Yes. Maya Wiley, good to see you as always. Thank you for joining us.

Let me tell folks what`s coming up. Because we were down at the Supreme Court as Nicolle and I were discussing. We`ve been reporting on the leaked opinion here to overturn Roe v. Wade. But the last two days on this program we have not discussed the leak itself that much. But we turn to that with the reporter who broke the story and why the right seems to be more concerned about the leak than the ruling. Stay with us.



MELBER: The right-wing of the Republican Party has spent the last 49 years, literally trying to get Roe vs. Wade overturned. Now we have this draft opinion that does just that and could do it with the force of law within weeks. So why aren`t Republicans talking about that? Saying that if the draft comes down as written, they win, that they delivered something they told voters they were going to do. It`s all been out in the open. We`ve been hearing something very different. And I mentioned early in the program that for the last two days, we`ve been focused on the substance of this, if you saw any of our coverage, we were down at the court, we devoted a lot of time to that.

And that was on purpose, because that`s what`s most important, and we try to give you the most important news first. The leak procedurally is less significant, although it is an unprecedented breach of Supreme Court rules. And now it is becoming the obsession of the people who said this would be a good thing. And that`s interesting. So, let`s start here. A majority of Americans oppose what Alito is draft would do. A majority oppose overturning Roe. There`s a Fox News poll, it says depending on how you ask it, about 65 percent of people support Roe v. Wade, a nearly two to one margin.

And that`s now. That`s this year, at a time when our politics are so polarized over everything from politicians to basic facts about the insurrection. And yet, that is not a 50-50 number that is an overwhelming position. It by definition includes self-identified conservatives, Republicans, and some Trump voters. So Republican politicians, well, they can read those same polls, and Senate Republicans are distributing their messaging on this, and it`s not celebrating what they did. I mean, these is Republican appointees on the court. And everyone knows that instead, they say, expose the Democrats for extreme views on the other side.

They`re not discussing the historic seismic ruling. They`re not discussing how many different states under Republican state laws only will immediately take whatever comes out of the court if it overturns Roe and ban abortion, instead, it`s been pretty striking politically. And again, this doesn`t happen every year, every election cycle. This has been 49 years of Roe on the books. This is the first official form of an indication from the court of overturning Roe and this is how most Republicans have been sounding lately.


SEN. TED CRUZ (R-TX): Whoever did this leak, should be prosecuted and should go to jail for a very long time.

SEN. JOHN CORNYN (R-TX): The Supreme Court found itself the victim of an unauthorized leak.

SEN. MITCH MCCONNELL (R-KY): You need -- it seems to me -- excuse the lecture, to concentrate on what the news is today, not a leaked draft. But the fact that the draft was leaked.


KURT SCHLICHTER, ATTORNEY: This did more damage than a bunch of elderly Trump voters taking selfies in the rotunda.

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: The leak was a terrible thing. It just not used to death for the Supreme Court. It was very shocking.

UNIDENTIFIED MALE: Make no mistake, Sean, this is an insurrection against the Supreme Court.

UNIDENTIFIED FEMALE: They`re trying to stop justice from being administered at the highest levels in our country by intimidating the sitting justices.


MELBER: That is a lot of concern about the leak. Fact check for Ted Cruz. There is no law that makes this a crime. That means you can`t put someone in jail for it. And you can`t pass a new law to criminalize past conduct. And Ted Cruz, the lawyer, former solicitor general of Texas, he knows that. So, he knows he`s lying about the law. FBI can`t even really get very involved if there`s no underlying crime to investigate. Now, there is a big problem with this security`s secrecy and propriety breach here at the Supreme Court.

And we can get to that. But it would seem odd to focus exclusively on that or as Mitch McConnell said there to demand everyone else in the free and independent press focus on that, and not the substance of what`s coming down the pike. Now, when the right has discussed that you can see some clues and tells about where they want to go.


SEN. JOSH HAWLEY (R-MO): The constitution is silent on this issue. That means it is up to the people to decide in the 50 states.

CORNYN: Usurpation of the -- of that power by the Supreme Court.

MIKE HUCKABEE, FORMER GOVERNOR: It`s here`s the big lie. The overturning of Roe v. Wade does not end abortion.

CRUZ: Horrifyingly, he argued for post-birth abortion, which is just flat- out murder.

REP. MARJORIE TAYLOR GREENE (R-GA): They`ll fight for harder than anything else. And that sacrificing babies on the altar of bail.

UNIDENTIFIED FEMALE: This is about abortion on demand. This is utter fanaticism. And it`s burned down the court.

MARK LEVIN, HOST, FOX NEWS: It`s not a salami sandwich, it`s a viable baby in the womb.


MELBER: As you can see, when they do talk about the ruling, they`re all over the place, either talking about murder, and the kind of, quote, abortionist language that Justice Alito uses, or pivoting to other things. It is a weird time to pivot to other things when you have spent half a century. No exaggeration, no cap, trying to get this thing. But the people you saw there who deal with the public, like politicians or people who even think about public approval, they know they are on the wrong side of the majority of America, which includes many conservatives.

And there`s a piece in slate that notes the worst thing that could happen to the GOP would be for the public`s trust in the courts to collapse. Now as it achieves, quote, crowning, but politically unpopular legal victories like this one. There is a larger problem here. And maybe that`s why there`s such a deflection of what`s happening. Justice Alito states far from bringing about a national settlement of the abortion issue, the original Roe opinion and Casey he writes referring to a later ruling upholding it, quote, inflamed debate and deepened division.

Now, that is what lawyers call an observation, not a legal ruling. That is just him talking about what do you think skill is going on out there. And it is certainly true that after Roe abortion became a bigger issue in politics, and certainly as we all have seen in the judicial nomination process. But what Alito implies in this draft ruling is that he will now undo and therefore redo what happened in 73. And that by doing this, he will reduce those stated divisions. Well, A. that`s not part of his job. Indeed, that`s the very thing he said was wrong with the original Roe precedent. And B. if he is going to try to play pollster, he`s not very good at it.

Because when you kick something like this, back out to the public, undoing 49 years of precedent and every single justice who said under oath, that this was a precedent or a super precedent to be respected that now they say was egregiously wrong from the start, well, boy, you might just inflame some divisions. And as for those other topics I mentioned, well, there are people who looking at what Alito wrote are saying that provides a foundation to ban contraception or the morning-after pill.

There are some conservative commentators saying if there`s no right to intimate privacy and context and maybe they can undo marriage equality. Yes, that`s why people who have to face voters are talking about the leak. And what is going on with the leak? Well, the Supreme Court Martial has been tasked by the chief justice to do something they`ve never done before which is conducting internal leak investigation whether they interview justices under oath or how that`s going to go is an open question.


Now when I`m back in just one minute, we will be joined by the reporter with the scoop of a decade, if not a half-century, and a legal expert, who served as a clerk to Justice O`Connor and Breyer. I`ll see you in one minute.



HILLARY CLINTON, FORMER SECRETARY OF STATE: This opinion is dark. It is incredibly dangerous. And it is not just about a woman`s right to choose. It is about much more than that. And I hope people now are fully aware of what we`re up against. Once you allow this kind of extreme power to take hold. You have no idea who they will come forward next.


MELBER: Hillary Clinton`s new warning about that draft opinion and we`re joined as promised by Yale Law Professor Amy Kapczynski, who has clerked for both justices O`Connor and Breyer, Justice O`Connor wrote the bulk of the 92 opinion that reaffirmed Roe. Welcome to the program.


MELBER: When you see the obsession on the right with the leak itself, what, if anything, does that tell you and now that we`ve had a few days, what do you see in this unprecedented leak and how it may impact the court?

KAPCZYNSKI: I mean, I think you`re exactly right, that the Republican obsession with the leak is about changing the subject away from this really scary opinion that just kind of drops a bomb on precedent for, and it`s been around for decades, and that protects lots and lots of people. So, I think they don`t want to talk about the leak. And you know, it`s to detract attention away from the kind of extreme views of this, you know, five or six-person majority on this court that is really unpopular.

It`s I think, you know, part of what`s going on here, really, is that there`s been, as you said, like a 40 or 50-year project to take over the courts and overturn Roe and a lot of other things. It`s not very popular. And so, they don`t want to talk about that at a moment like this. But that`s what there is in front of us.

MELBER: The draft, which has been confirmed by the Supreme Court indicates that Justice Alito believed in February, he had the five votes to overturn Roe, based on what we know in public. Do you think that is still the case tonight?

KAPCZYNSKI: I mean, I think it`s very hard to say what`s going on inside the court right now, this is an unusual situation. You know, I think it`s very possible that there`s jockeying going on, and that, you know, part of what this leak is about is an attempt to lock those five votes down. You know, there`s enormous stakes and exactly what that opinion says.

And you know, if you look not just at the leak, but what came out in the Wall Street Journal about a week ago, it seems pretty clear from the editorial page of the Wall Street Journal that somebody on the conservative side of the court was leaking things to the Wall Street Journal to try to get the five votes that they need for that opinion. So, I think, you know, there`s probably something going on in there.

MELBER: Yes, just to pause. There`s plenty of leaking in Washington, but you`re saying the way you read the journals, knowledge or purported knowledge of the process that would suggest that someone on the inside was concerned that was that one of those five might go to Roberts` opinion that would be narrower?

KAPCZYNSKI: Yes, something like that. Exactly. Or want to change the language. Remember, the language of this opinion is about as extreme as it gets. Right? So, there`s no reason the way that this opinion is written that any of the other decisions that the Supreme Court has come down with that protect families that -- and parents` rights to educate their children or, you know, LGBT rights or, you know, prevent for sterilization or protect contraception, any of that. So, that language, of course, can change before the opinions out and I think that`s a lot of what`s at stake here.


MELBER: Yes. You are a law professor at Yale, the number one law school. You`ve clerked on the Supreme Court which is a very rarefied thing. We normally would have a hard time pairing you with any legal equal professor, but I think you`ll understand our next guest who joins the panel is the person who offended all of the Supreme Court and the nation this week. Josh Gerstein, who`s joined us before is one of the two political reporters who broke the story. Thanks for making time on a busy week, sir.

JOSH GERSTEIN, SENIOR LEGAL AFFAIRS REPORTER, POLITICO: Thank you, Ari, always happy to be with you.

MELBER: We`ll dispense with the latest news, which I imagine you`ll be the most concise on, but the times and others reporting on what will be a leak investigation of an unprecedented nature inside the Supreme Court, led by the marshal, have they contacted you in any way? Would you cooperate in any way with that kind of probe?

GERSTEIN: Well, as far as I know, no one has reached out to us obviously, we saw the same statement that you saw Ari, and that the rest of us saw Tuesday morning, I was a little surprised to see the court say anything about this opinion. I`ve been pretty clear about that. I thought they were simply going to say there`s nothing to see here and move on. So, I don`t know, I can`t tell you one way or another. Certainly, we`ve made certain pledges to the source or sources that were involved in helping us with the story. And I intend to keep those. And that`s about all I can say on the subject.

MELBER: Briefly on that, professor, is it fair to say that whoever leaked this, based on what we know probably did not break a law?

KAPCZYNSKI: I don`t think we know of a law that anybody would have broken. No.

MELBER: Yes. So, dispensing with that, Josh, this has been now a couple days, it`s upended everything. You obviously are not speaking about your sources. We understand that. What do you see in the reaction to your report? One, as you mentioned, the chief justice made a choice. He didn`t have to. To confirm publicly the veracity of that draft to the political world has exploded.

Three the right as we just showed moments ago, has talked a lot of times more about the leak, which went to you and your colleague at Politico, rather than the substance of the opinion. And finally, as a legal analyst, which you also are what do you think of the fact that as of February, the draft was not just upholding the most restrictive abortion ban offered and a while but also overturning everything?

GERSTEIN: Well, first, Ari, it`s good for you to point out my colleague, Alex Ward, who also reported the story along with me and was quite important to getting it put together. I would say, Ari, that I was struck when I saw the language in the opinion that it is very, very sweeping and brash in its tone. And you know, if people haven`t read it, there`s a reason for it. Some of it is the voice of Sam Alito, that I think you can hear quite clearly in there. So, I`m glad that Chief Justice Roberts confirmed that it`s authentic because it certainly seemed that way to us.

But you know, there`s a reason that it`s so strident in the tone, and that`s because the task at hand, which is overturn -- overturning Roe v. Wade, a precedent that is now almost a half-century on the books, if you`re going to do that, under this sort of framework that most of these justices approach cases, you have to build up a head of steam, you don`t just say, well, I noticed this is a little off, and that`s a little off, so check it in the waistband. You know, that`s not the way the Supreme Court normally operates. And it certainly doesn`t have very high-profile cases where people don`t expect it to.

So, I think Alito, his rhetoric here is amped up for a reason. And that`s to basically ridicule the Roe opinion in such a way that it becomes easier to knock the legs out from under it. So that`s the task that he seems to be embarked on. It`s also another reason why it`s very hard to see Chief Justice John Roberts joining this authority. And if it looks like it does, right now, and there`s just a language in there about -- yes?

MELBER: If the right is winning, why are they acting like it?

GERSTEIN: Well, I think that`s because there`s a disconnect between their policy priority here and public sentiment. I mean, what we`re seeing now is a classic sort of two-tiered messaging strategy where they believe that the Republican base is getting the message that we`re on the verge of overturning Roe versus Wade, which is something that`s been a project of the conservative legal movement now for probably more than 40 years. But they recognize that there may be a price to pay, let`s say in November, perhaps with moderate voters, especially moderate women, GOP voters, they could have some problems.

Does it harken back to some bad feelings about extreme views under President Trump and perhaps disrupt what they think is a victory coming this fall. So, if I had to guess they`re looking at some poll numbers and getting some advice from the messaging strategist that, you know, your voters know you`re doing the right thing no need to make too much out of this Supreme Court Roe versus Wade stuff.


MELBER: Really interesting from two experts in the thick of it. My thanks to both of you. When we come back, an update out of Florida.


MELBER: Florida Republicans passed the so-called Don`t Say Gay law and now we are seeing reported consequences. A middle school teacher says she was fired for discussing her own sexuality with students, reportedly asked about drawing flags represent their own sexual identities. The school district says she was fired though for not following a mandated curriculum.


CASEY SCOTT, FIRED TEACHER, FLORIDA: A discussion happening in class and because of that now I`m fired. And a lot of the kids came out to me, like, oh well I`m non-binary and a couple of kids said, oh well I`m bi. One kid said they`re gay.


UNIDENTIFIED MALE: How do you feel right now?

SCOTT: Early, ashamed, I guess. Disappointed, because I feel like it`s all my fault. And I was just being myself.


MELBER: This is about equality and also free speech. DeSantis has Florida taxpayers, now suing him over some of this including the clash with Disney that also related to equality, and they say they are going to have to pay a billion-dollar bond debt as a result. On top of all that a DeSantis law trying to hit social media companies and limit their free speech has been blocked in the courts as a violation of the First Amendment. We`ll be right back.


MELBER: Across this week, we`ve been covering this leaked draft opinion in many ways. And I want to ask you, what do you think is the most important thing about Justice Alito`s opinion. You can always reach me @AriMelber on social media. That`s @AriMelber on Twitter, Instagram, or at What do you think is most important about the draft opinion? We might take some of your ideas or questions and work them into future coverage. That does it for us. "THE REIDOUT" with Joy Reid is up next.