Summary
National backlash to unpopular Supreme Court ruling against women`s rights on abortion impacting millions. Legal experts said Trump appointees ended Supreme Court`s independence while Justice Samuel Alito contradicting previous justices` ruling on Roe v. Wade from 1972. Linda Greenhouse a former Supreme Court reporter of The New York Times and Joan Walsh a national affairs correspondent of The Nation joins Ari Melber to talk about the abortion ban that disproportionately affects women of color. Nick Akerman a former assistant special Watergate prosecutor joins Ari Melber to talk about the second Trump insider that was raided by the Feds because of the January 6 probe.
Transcript
NICOLLE WALLACE, MSNBC HOST: "Answering the Call" airs Sunday, July 3rd at 7:00 p.m. Eastern and Pacific on NBC.
Thank you again so much for letting us into your homes during these truly extraordinary times. We are grateful. THE BEAT WITH ARI MELBER who has also been enlisted to help me starts right now.
Hi, Ari.
ARI MELBER, MSNBC HOST: Hey, Nicolle. I will tell there`s a lot going on in the world, I think we all know, and the thing that you`re doing here, which I want to shout out and echo, I love it not only because it relates to music and culture, which I do love, but I think that I know you care a lot about what`s going on overseas.
We`ve been covering that story along with everything else that comes in and out of people`s attention, although everyone Ukraine as you just reminded us and what the president reminded us, needs the world`s eyes on that issue in whatever way people can participate. And I know how hard you`ve been working on this, so I just want to say, on behalf of whomever, myself, I don`t know, I think it`s great what you`re doing and we will all be a part of it and tuning in.
WALLACE: Thank you so much. And you were one of the first people I called to, let`s say, educate myself about the music world. So thank you for being there for me.
MELBER: Thank you for doing it, and we`re all going to see what you`re doing. The culture part matters. That`s why Zelenskyy spoke at the Grammys because there are ways we can all engage even without a hot ground war which the U.S. has tried to avoid while supporting Ukraine. So again, we`ll be watching, Nicolle. Thank you.
WALLACE: Thank you, friend.
MELBER: Absolutely. Welcome to THE BEAT, everyone. As just Nicolle and I were discussing there are obviously many, many things going on in the world, and in America we are following several stories for you tonight.
We will begin with our lead story, the reaction to the fall of Roe and what is happening around the country. We also later tonight, I have to tell you, we got a big story coming up, which is another Trump coup plotter now facing a search by the feds. That`s new breaking late today. This time it is one of Donald Trump`s most controversial lawyers and aides ever, and that`s saying something, John Eastman.
Congress also now announcing a new January 6th hearing for tomorrow. Now you may be thinking, wait, did I forget? Was there another hearing coming? No, you didn`t forget. This was not on the schedule. We only are gathering new information from our sources in the way we`re dealing with the committee to learn why they`re holding this tomorrow. So we have an update on that, and Eastman facing this very heavy escalation in the probe later tonight.
Our top story, though, is following the continuing shockwaves around the nation amidst these marches by thousands. What you see here has been animating so many people in so many places, reacting to the Supreme Court, which, now stocked with three Trump appointees, has reversed 50 years of law to revoke the constitutional right to choice in America.
Now let me tell you something off the top. By every available measure that we have had up until Friday and over the weekend, Americans oppose exactly this kind of move. It has been polled for some time. They strongly oppose it now that it has become reality. Activists, opposition are materializing well beyond these specific categories, such as the way that sometimes Washington divides things up, by ideology, by gender, by geography.
Indeed I want to tell you as word spread Friday and reaction built over the weekend, it is very clear that those five justices who voted to formally and completely reverse Roe, three of them appointed by Trump, who got, we should note, fewer votes both times he ran for president than his opponent, well, those three new Trump justices along with the voting bloc, they are a government minority.
They`re squaring off against what is clearly a much, much larger American majority, and the reaction to what they`ve done ranges from the personal, the political, the people speaking up well beyond politics and across our larger culture.
(BEGIN VIDEO CLIP)
OLIVIA RODRIGO, SINGER: I wanted to dedicate this next song to the five members of the Supreme Court who have showed us that at the end of the day they truly don`t give a (EXPLETIVE DELETED) about freedom.
UNIDENTIFIED FEMALE: It`s health care. And they need to have it. It`s necessary.
PHOEBE BRIDGES, SINGER: All these irrelevant old (EXPLETIVE DELETED) trying to tell us what to do with our (EXPLETIVE DELETED) bodies.
UNIDENTIFIED MALE: We`ll keep at it and we won`t quit because too many women are dying.
JANELLE MONAE, SINGER: (EXPLETIVE DELETED) the Supreme Court.
UNIDENTIFIED FEMALE: It`s a direct attack on socio economic groups that are, you know, disparaged already.
KENDRICK LAMAR, RAPPER: Godspeed for women`s rights. They judge you. They judge Christ.
UNIDENTIFIED FEMALE: This is not the edge. This is groundswell that we need to say, these are our rights.
LAMAR: Godspeed for women`s rights. They judge you. They judge Christ. Godspeed for women`s rights. They judge you. They judge Christ. Godspeed for women`s rights. They judge you.
(END VIDEO CLIP)
MELBER: Now take just the final two voices we show you in that very partial collection of what everyone is saying and doing and reacting. One citizen declaring this should be the start to a groundswell, not the end of a legal case. And then after that, an artist with many, many millions of followers, Kendrick Lamar, confronting plainly the religious claims of judges who apparently believe their personal religious views must control others under law.
Well, he rejects that kind of zealotry or possible arrogance, saying it is against women. And Lamar offering a more humble view of religious traditions.
[18:05:09]
We show that tonight to start our coverage because both those views are animating part of the backlash right now. Because as this week begins, I`ll tell it to you straight, Americans are living in a fundamentally different society than last week.
Now a constitutional right has evaporated before our eyes. Now a court that operates chiefly through the influence of its legitimacy has, at least according to many, according to the majority in this democracy -- we cover what the majority thinks -- the court has now torched some of that in exchange for a political and religious agenda at the first moment it found the five votes to take this action. Three of them courtesy of Donald Trump.
Now what I am reporting for you are legal facts. That`s apart from one`s personal or religious views, which is why we`re at an inflection point in history. The consequences are here right now, here for people. The new abortion bans arriving in 10 states. Some are litigating the details. Arizona, West Virginia, Wisconsin, shutting down healthcare and abortion services already in response this ruling.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: I had to look people in the eye and turn them away when they were seeking abortions.
UNIDENTIFIED MALE: People that were upset, angry, people breaking down crying, people in disbelief. This is a really emotional, emotional and hard day.
UNIDENTIFIED FEMALE: We`ve always said take everybody. We`ll figure it out, we`ll figure out how to serve people. And we haven`t been able to say that now.
UNIDENTIFIED MALE: We will find a way to help clients, and if it means moving, we`ll have to move.
(END VIDEO CLIP)
MELBER: This is the reality as we begin the week, and we bring in two of our experts, Emily Bazelon is a "The New York Times" magazine legal writer and Laphonza Butler, president of EMILY`s List, an advocacy group that helps support women in office and female power among other things.
Welcome to both of you.
EMILY BAZELON, LEGAL WRITER, NEW YORK TIMES MAGAZINE: Thank you.
LAPHONZA BUTLER, EMILY`S LIST PRESIDENT: Thank you.
MELBER: Emily, when you see the reaction, it is what was known because where the public falls on these issues has been well-documented. What does that mean as this controversy, which Justice Alito proclaimed would end, or somehow lessen based on his ruling, I think thus far that`s not happened.
BAZELON: Right, this is just a new chapter in a long and bitter fight in this country, and we`re going to see it play out state by state. Abortion opponents are going to try to pass bans that are as restrictive as possible in as many as half of the states, and people who support access to abortion are going to try to make those bans less onerous for people seeking abortions, try to help women travel, and also try to get the abortion pills, which we know at this point are safe and effective, into the hands of people who need them.
And so those are these new sets of battle lines that the Supreme Court`s conservative majority has drawn.
MELBER: Laphonza?
BUTLER: You know, Ari, I think, you know, it`s clearly right. You know, the protest over the weekend, the sort of folk who`s shown up when the decision was made public on Friday, this is a part of the accountability in our system. I think that people all over the country, the majority of Americans supporting this fundamental freedom, are expressing, I think, the initial phase of accountability in our system, with the ultimate being at the ballot box this November, and I expect that this will continue, and I look forward, frankly, to continuing to support candidates like the ones that Emily`s list has been supporting as they head into November as well.
MELBER: Yes, you mentioned candidates, which is part of why we wanted to hear from you tonight. There are many aspects to this. It`s nuanced. I try to cover that. But we`ve documented long before the ruling came down Friday that it is largely male legislatures that have pursued these rules. It is largely male justices that uphold them or, in this case, roll back the right. I will note there was one female Trump appointee in this ruling, but the other four male.
There are many aspects to this that go to the fundamental questions of equality and fairness in law, which is something equally applied and fair to everyone, or is it selectively applied? And to throw one more thing to that, not to bombard anyone, but we want to get it all out here we do have the demographic data here. And I just want to make sure that`s up there for folks because as we consider all this.
When you look at who is affected by this and Justice Ginsburg used to speak about this with regard to class and race, which are crosscutting, but women of color are most affected by the fall of Roe when you look at the rates.
[18:10:06]
White women for a variety of reasons would not be statistically as impacted by this in as many places. And I`m just curious if you want to speak on any of that.
BUTLER: I would, Ari, and I appreciate you and your team for doing that analysis and putting those facts in front of the American people. It`s interesting to say the least that the majority of legislators and governors who are advancing laws to constrain the freedom of women or men, I think it`s interesting that the majority of the court who advanced this decision limiting the citizenry of 167 million women in this country, more than half of our population, was done by a majority of men.
There indeed is nuance, but the writing is very clear that there is an intention here to create a permanent underclass of women, and I am here and would love to continue this conversation as we speak directly to the women that Justice Alito called out in his decision, where he said, it`s not as if women don`t have electoral or political power, and I think that it is time that women across this country show these justices the kind of country that they want their daughters and sons to inherit, and frankly, the kind of country that we deserve.
MELBER: Yes, well, that`s interesting. You`re citing of course some of the selective reference to political turnout in the opinion, but you`re also saying, OK, bring it.
Emily, this really brings us back to the jurisprudence which on the one hand I understand some people might just not be in the mood for. On the other hand, the fact that Justice Alito keeps misleading and hiding the ball seems to be a tell that he doesn`t really want people to know the truth, that at a certain level he is concerned about the legitimacy and the understanding of the court.
And Emily, he says, well, this whole ruling is governed by of course history. You have to do what happened at the time of the 14th Amendment, or he even goes back to 17th Century treatises. Well, again, are we going to be real? At the time of the 14th Amendment, gender relations were treated as property. The 14th Amendment dealt with involuntary servitude at a time when women of color were part of an organized capitalistic sexual slavery.
So if you want to say out loud that that`s as far as the analysis can go or that that`s what the ruling should be based on, don`t you start out game over, Emily?
BAZELON: Well, right. I mean, we heard from the Supreme Court repeatedly again today and last week that the Constitution has to be based on ideas that are firmly rooted in the nation`s history and tradition. That is very constricting. That means that we are going back to a time before women voted, before black people were able to vote, when what we now think of as a small fraction of our country was fully in control.
And so it is very limiting to imagine women`s rights in terms of only the 18th and 19th Centuries, and that is what this conservative court seems quite determined to do on reproductive rights, on religious rights, and in other areas. The Second Amendment. And it`s really going to have a profound impact on the lives of Americans.
MELBER: Yes. All very important points we`ve been covering here in our first segment tonight. Both the law and the democracy response. So Emily Bazelon, Laphonza Butler, thanks to both of you.
Let me tell folks what is coming up because as mentioned there`s a lot going on today.
Breaking news of a new search warrant on Trump`s election lawyer who was taking the Fifth, who is tied to the coup. The FBI just took his phone. We have that report for you new tonight with a surprise hearing tomorrow, and we`re being told a mystery witness as of this hour. It`s not been confirmed formally by Congress.
Later, an expert on how the Supreme Court might be undermining its own legitimacy, something we only touched on briefly thus far. And we will hear from the attorney general in a swing state who says he will actually not enforce part of an abortion law that goes back to the Civil War.
You`re watching THE BEAT.
(COMMERCIAL BREAK)
[18:18:39]
MELBER: The Supreme Court has always navigated deep American controversies. In fact, when you go to law school it is both common and at times downright cliche to refer to how the court doesn`t have its own army or police force to back up its rulings. It doesn`t have the following and the intense passion and support of most politicians. What the court draws on, we`re told, besides its technical authority is a type of legitimacy. Legitimacy.
Now if you`re watching the news right now going, I`m not sure about that, well, that`s the focus of our report right now. The impact of this decision that guts Roe will continue to be important to many people for its direct consequential force on their life, its impact, and we`re going to keep covering that as we did at the top of the hour. But then there is also what this decision, that is such an undeniably big deal that will be taught in law school and history for a long time to come, what does this actually mean for the court itself?
It`s facing this mainstream nonpartisan rebukes already in publications like take for example "USA Today`s" front page which raises the obvious issue here, not from a left or right perspective, but just from an American view of, wow, once you do this, this fast with a bunch of new Trump appointees, the court`s legitimacy is, quote, "in question after this ruling."
[18:20:10]
The nationwide protests that we`re living through right now, they`re not simply logging a generalized disagreement with the outcome. Much of this is also tapping into what is now a prevailing view, that this decision came out because new justices joined the court, and they personally oppose abortion.
Now let me be clear. If the sentence I just said sounds obvious, Trump put people on the court, they voted to reverse the precedent because they oppose it, if it sounds obvious, remember, that is what they currently deny. The court`s legitimacy requires that it never does that, that it doesn`t just reverse what is law, precedent, constitutional rights, because new people are voted on and they just personally disagree.
Its legitimacy comes from being above personal opinions and politics, let alone a judge`s personal religious views. Again, you might think, yes, Ari, that should be obvious, but I just want to spell it out. If the court just did that, if justices joined and just ruled on their, say, religious views, however earnestly held, then the Supreme Court would become an unaccountable super legislature that would just mandate, everyone has to observe the Sabbath or go to church, or if you`ve got enough really strong Jewish believers on there, then everyone has to keep Kosher because that`s what its members think.
Now as we noted on Friday, Justice Alito strenuously disagrees with that. He claims that he and this five-justice majority are literally neutral on abortion. No views whatsoever, and that`s not why they ruled. Yet he also claims, quote, "Roe was egregiously wrong from the day it was decided." That`s a bold statement. Legally what he`s saying is not that new facts or information changed something, which can happen in precedent.
What he`s saying is since the ruling came down in `73, it has always been legally wrong. That`s sort of legally speaking the highest threshold for claiming that something has got to be overturned. The most classic example is on matters of race where many people a long time ago literally believed in the differences of the races as a matter of law and now the court says not only were they wrong then, but that`s always been the wrong view.
Now this Alito claim was just dissected by one of the national experts on the Supreme Court in our entire lifetime, journalist Linda Greenhouse, "New York Times" Supreme Court reporter for decades. And she notes in a new piece that this is the first time the court has rescinded an individual right and left it up to the states, something that used to be, according to the court, protected by the Constitution.
Now, again, I`m keeping it as blunt and clear as possible. These things are linked. The fact that the court is being perceived by everyone as making a sudden change as soon as it got Trump appointees on, who have a view of abortion, that perception against what Alito is claiming, that he needs people to believe something else. He needs everyone to believe that this decision was always wrong from the start.
As Greenhouse points out, that would also mean however, that so many past Republican appointed justices who backed Roe would also have been wrong from the start.
(BEGIN VIDEO CLIP)
POTTER STEWART, SUPREME COURT JUSTICE: The 14th Amendment defines person, it defines person as somebody who`s born, doesn`t it?
ROBERT FLOWERS, TEXAS ASSISTANT ATTORNEY GENERAL: I`m not sure about that, sir.
STEWART: Well, it does.
HARRY BLACKMUN, SUPREME COURT JUSTICE: When you quote Blackstone, is it not true that in Blackstone`s time, abortion was not a felony?
FLOWERS: That`s true, your honor, but what my point there was to see the thinking of the framers of the Constitution.
BLACKMUN: I`m just wondering if there isn`t a basic inconsistency there.
(END VIDEO CLIP)
MELBER: That`s just a little bit of what it sounded like when they were actually adjudicating and hearing this case originally. Republican presidents appointed much of the Roe majority, those were some of them discussing these issues in the oral arguments in `72, and it was back then a 7-2 decision. The vast majority of justices on the Supreme Court who were all men at the time, we should note, as we discuss gender issues, voting for Roe. Five appointed by Republicans.
And Greenhouse stresses this in her "New York Times" piece responding to Friday`s ruling, noting that Alito is saying all of those justices were so blatantly obviously wrong in that decision as well as over time is, quote, "breathtakingly arrogant."
[18:25:01]
Now numbers show that 1 in 4 women have an abortion by age 45 in America. But this doesn`t even impact all women equally. Experts, as we`ve noted from the top of the show, say women of color are most impacted. Professor Melissa Murray who`s been a guest here says for women of color, poor women, women who lack the resources to travel, well, for them, it`s especially grim, quote, "really grim," she says.
For black women who already have a maternal mortality rate triple that of white women, the ruling could increase those numbers by a third. But none of this is new. Just as so many people have lived through this, some of the Supreme Court experts have as well. And Greenhouse in this essay which is at times personal, draws on her own history, her own career, and notes that before Roe, in 1970, quote, "more than 90 percent of legal abortions in New York hospitals were performed on white women while nonwhite women account for a large proportion of the deaths from bungled, illegal abortions.
She was reporting on that over 50 years ago and quoted a lawyer who told her it is the poor women who have to pay. Greenhouse noted a forthcoming court challenge could bring the striking down of all antiabortion laws in the U.S. She wrote that in `70. Three years later Roe did come down. And now 50 years later, while some things have changed, the point there, the grim point, is that when it comes to class and equality and discrimination, some things have not changed at all, and that is far worse news for certain people in America.
We are indebted to people like Miss Greenhouse for her reporting, for her work on the Supreme Court, for our understanding. And tonight, that reporter, Miss Greenhouse, along with friend of THE BEAT, Joan Walsh, is our special guest when we`re back in one minute.
(COMMERCIAL BREAK)
MELBER: Welcome back to our special coverage. We just drew on "New York Times" reporting from back to 1970, and now joining us is the aforementioned reporter and author of some of that work, Pulitzer Prize- winning journalist Linda Greenhouse, who cover the Supreme Court for the "New York Times" for many years, and Joan Walsh, a national affairs correspondent for "The Nation" and friend of THE BEAT.
Welcome to both of you.
LINDA GREENHOUSE, PULITZER PRIZE-WINNING JOURNALIST: Thanks, Ari. I really appreciate that opening.
MELBER: Well, we appreciate -- I don`t think -- I think I can -- I`m always careful who I`m speaking for. I think there`s evidence a lot of people appreciate your work, and your essay walks through so much there. So given that setup, why don`t you tell us what was important to you to convey? Because as we always say, people of good will, people who are trying to do things right may disagree on issues and yet what you document is a deeper problem in the court`s very legitimacy right now.
GREENHOUSE: I think what we see in this opinion really is what I call breaking the fourth wall. If you know the image of the fourth wall, that when we go to theater, you know, we know we`re just seeing a play. We`re not seeing people really acting out their lives. And we accept that. You know, we accept that the Supreme Court is populated by people who get there through politics, named by a president, confirmed by the Senate, confirmed the heartland of America`s political life, often, and, you know, we`re cool with that.
There`s kinds of bargain. We the public have made a bargain with the Supreme Court. We accord you legitimacy to exercise the enormous power that you have as long as you`re staying in the kind of mainstream of Americans` understanding of the principles that we live by. What the court did with the Dobbs` opinion, the Mississippi abortion case, is break the fourth wall, enabling us to look at them clearly as you did in your opening, and say, hey, wait a minute, you know, the overwhelming popular sentiment in the country is don`t do this.
We may disagree about when someone should have an abortion or different aspects of abortion. But at the end of the day, it`s very strong majority of the American public wants this to be an option. And the court giving really no reason, as you said, you know, the court has overturned precedent many times in its history.
[18:30:00]
Often to expand our notion of rights. As when Brown against Board of Education, overturn Plessy, as you said, or at least clarify rights or take account of some new information, this kind of thing. If you read the dives majority opinion, the Alito opinion, which by the way, is virtually identical to the draft that was leaked two months ago.
I urge people to read it. Read it, and look for women. Look for any acknowledgment in that opinion, that this decision is going to have any impact on women. It`s astonishing, women are not there. So, you know, I think that the court has broken its half of the bargain with I think, devastating consequences for the way Americans think about the Supreme Court.
MELBER: Yes, you document that. And Joan, I`m not joking when I mentioned the Sabbath or keeping kosher, or any number of earnestly held beliefs. I know people who believe that very deeply. The question is whether it`s going to be a theocracy, which will involve the picking of one religious belief over another than enshrined in law or not.
And no one is saying people don`t have the right to these beliefs, or to peacefully advocate on them if they want to go speak and try to convert -- so to speak, to use a very literal word, others to that belief system. But what Alito and the majority do at great, great cost to many things, including the courts, legitimacy would seem, Joan, is say, we`re here now.
We just got here. I mean, the Trump era just ended, we got here. And now we`re going to do it our way, in some sense, allegedly, their religious way. Joan?
JOAN WALSH, NATIONAL AFFAIRS CORRESPONDENT, THE NATION: Well, absolutely, that`s right. And you know, Linda says so much, I can`t say it better than Linda. But it just strikes me that, you know, nothing has changed here. There`s no new medical science. There`s no new science, about pregnancy or new information about abortion, we really haven`t had much new information even about fetal viability for a while.
And certainly, the polls haven`t changed with women and men overwhelmingly support this right. So, the only thing that changed is this majority. They`re here, they`re here now, and they`re doing this now. And you know, the point about all the Republican justices -- two generations of them, basically, who have upheld this right in some fashion over the years is so important.
And I think about the words of Justice Sandra Day O`Connor, who was appointed by Ronald Reagan when she wrote the majority opinion in the Casey decision, which did impose some restrictions on abortion but basically kept it available. I think her opening lines are -- Linda can correct me, I`m sure, you know, something to the effect that the ability of women to participate equally in social -- in the social and political life of nations is dependent on their ability to control their reproductive lives.
You didn`t see anything, anything like that, and Alito`s opinion. And you`re right, women are absent because I think they want -- many of them want us to be absent from the public sphere, to the greatest extent possible.
MELBER: Yes. And then Linda, I just want to draw on another part of your piece where you went through what Alito says, will now be reasons to govern these health care and decisions, quote, respect for prenatal life, at all stages of development. Maternal health and safety. Eliminating what he calls gruesome medical procedures. The integrity of the medical profession, according to him, or I guess, a religious view above it.
The mitigation of quote, fetal pain, which you draw on the science to note is a bit of a dog whistle. And then the prevention of discrimination. Again, that`s a lot of text there that people may say, OK, what are we talking about, but Linda is a final word in this segment because that was important part of your piece. I did want you to walk us through that.
GREENHOUSE: Yes, so what these are, most of them -- not the top two, but the rest of them are anti-abortion dog whistles that just don`t belong in a Supreme Court opinion. The integrity of the medical profession is code for denigration of what the majority opinion astonishingly cause Abortionists. Now that`s a very ugly word for medical professionals who provide abortion care.
And the prevention against discrimination is a reference to Clarence Thomas has been very clear about this in earlier opinions. States are trying to pass laws that would make it a crime to have an abortion if the reason is a prenatal diagnosis of Down syndrome. And, you know, sadly or for better or worse, most such diagnoses lead to a choice to terminate the pregnancy and states are trying to stop that in the name of discrimination.
[18:35:00]
Now, of course, that point is a little bit moot, because the states are free now to make abortion itself a crime. But Alito going through that list, really, it`s -- toward the very end of his opinion, I think just underscores the -- that we`re dealing with policy and that law.
MELBER: Yes, I think that`s so important, what you`re saying. And again, I`ve taken great efforts to acknowledge the earnest disagreement in the country, which does exist, although majority the other way, but yes, disagreement.
But as you say, when you get into that level, and it`s -- again, for people who claim, oh, this is about the text or originalism, and then they just give the whole game away and say -- or it`s about my religious beliefs, and for particularly, Justice Alito, and that majority who have not exactly upheld discrimination protections for living human beings, based on gender, race, et cetera.
It just gives the whole game away. And again, I don`t know that we`re better off in a world where everyone thinks that the Supreme Court is just a less accountable super-legislature, but the conservatives -- or self- declared conservatives in the court have certainly gone down the road. Your piece again, we recommend it. That`s why we quoted it. For folks who want to find that online. Linda Greenhouse at the New York Times.
I have fit in a break. So, I want to say to two guests we`ve had on before, we`d love to have you both back on Linda and Joan, thanks for being here tonight.
GREENHOUSE: Thanks very much.
MELBER: Appreciate it. And coming up. The other news we`ve been tracking that broke late in the day, there`s a surprise witness. We don`t even confirm yet who it is. But the January 6 Committee choosing to go forward with that. And the coup plotter at the center of the Fifth Amendment invocations is now also facing federal seizure of his phone. We`ll get into that next.
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[18:41:37]
MELBER: Turning to two pieces of seemingly unrelated but big breaking news on the insurrection probe. First, there was nothing scheduled this week. Indeed, when we covered the hearing when we were with Rachel late last week, we said that was the last scheduled hearing. And there weren`t any this week. But today, a sort of surprise or emergency hearing has been added all of a sudden for tomorrow.
And the committee is plainly saying this was not the plan. But they now have quote, recently obtained evidence, and new witness testimony. As of this moment, we do not have confirmation of who this witness will be tomorrow. But there`s a lot of news coming down the pike because breaking late today, the coup plotter and former Trump lawyer John Eastman confirming himself that he had his phone seized by the Feds executing a lawful search warrant on behalf of the Justice Department.
Eastman says the FBI took his phone from him as he was leaving a restaurant so they could get access to his emails. The warrant issued at the behest of the Department of Justice`s Office of the Inspector General. I`m joined now by Nick Akerman, a former Watergate prosecutor who has experienced in exactly these kinds of sensitive raids, searches, and prosecutions. Welcome back, sir.
NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Thank you.
MELBER: Um. First of all, I just want to remind folks, if you go back a couple months, you didn`t have any of this. You go back a couple of weeks, you had signs, development searches. In the last two weeks, you have the physical lawful search of Mr. Clark`s home, and now a physical interaction to get the phone of Mr. Eastman those are two people at the center of the last-ditch dead-end under coup-plotting, focusing on January 6, and or electoral fraud. Do you view this as bad news for them and a sign the DOJ is going up the chain or too early to tell?
AKERMAN: It`s bad news for both of them. I mean, essentially, the only way the government could have obtained either of those warrants is to have probable cause, one, that there was evidence of a crime -- in the case of Eastman, on his phone, and there was evidence of a crime in Clark`s apartment. Now, that probable cause cannot be stale, meaning it has to be current.
And don`t forget all of these activities that occurred were in January -- on January 6, almost over six months ago. And so, somehow the government has come up with current information on both of these individuals. That is, somebody has either ratted out John Eastman, or somebody has somehow found out that he`s got information on that telephone, whether it`s calls to various people that are recorded there, whether it`s emails.
I mean, he`s got the iPhone 12, which can actually contain all kinds of documents for all we know, all these documents that were subpoenaed by the committee, some of which weren`t turned over by the court. So, somebody somewhere has basically put in the government`s possession, the fact that there is information on their current, and that there was information in the apartment of Jeffrey Clark. So that is what is so breathtaking here.
MELBER: Yes, and I want to jump in just -- I want to build because I`ll have you for another minute. There`s all the violence of January 6 that`s been prosecuted and whether there are further links we don`t know. But the public evidence against these two people, Clark and Eastman, is really more about what they did with Trump going into the 6th.
[18:45:00]
In meaning, if there were no violence that day, would these still be likely searches unlawful warrants because what we do know, Nick, is that they`re involved with alleged crimes that didn`t require violence, they required obstructing or stealing an election.
AKERMAN: No, that`s right. And in this case, Eastman is the phony electors. In the case of Jeffrey Clark, it`s trying to basically come up with a letter saying -- you know, lying, that there was fraud in the election to try and get the state of Georgia to rescind and take back its electoral votes from Joe Biden.
So yes, there are different crimes here. But again, this shows that the government is on top of this because they`ve got somebody or people who are telling them things that are very current.
MELBER: And lastly, lastly, I got -- I just want to get you one more thing. I keep moving you, Nick. But these aren`t traditional prosecutors. According to Eastman, it came out of the inspector general`s office in a sentence or two, does that matter?
AKERMAN: Yes, it could because that could be the place where the evidence came from. It could be -- that somehow the inspector general, at least with Eastman, came across the current evidence that made the probable cause for this warrant.
MELBER: Very interesting. And to remind people inspector general that`s like the watchdog. So, if you have people who are lawyers or DOJ officials who are acting badly or like criminals, the I.G. is the first place to start. Whether it got worse than that, we don`t know yet. Can`t prejudge. But Nick Akerman says it`s very bad news for them. On a night with more time, I`d love to spend more time with you, sir. Thank you, Nick.
AKERMAN: Thank you for inviting.
MELBER: Up ahead, we turn to our final guest, an attorney general who is defying a state abortion ban. That`s next.
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[18:51:19]
MELBER: I`m joined now by the attorney general for Wisconsin, Josh Kaul, he has vowed not to enforce 107-year-old abortion ban on the state books. Welcome.
JOSH KAUL (D-WI), ATTORNEY GENERAL: Thanks for having me.
MELBER: Tell us what the state of the law is today and what your position is?
KAUL: Well, unfortunately, it`s really uncertain what the state of the law in Wisconsin is. We have an abortion ban from the mid-1800s that remains on the books, it bans abortion in almost all cases, there is no exception for rape or incest. There is no exception for an abortion early in pregnancy. Now there were laws passed subsequent to Roe that regulate legal abortion.
And so, whether those laws control or this ban does, is going to be a matter likely decided by the courts. But in the meantime, I`ve been clear that as long as I`m the attorney general of Wisconsin, we`re not going to use any resources at our State Department of Justice, to investigate or prosecute anybody under our mid-1800s abortion ban.
MELBER: And when you say prosecute is that a ban that theoretically could be construed to indict someone, be that a doctor or someone else?
KAUL: That`s right, it makes providing an abortion a felony. So, if a doctor performed an abortion unless it was to save the life of the mother, it would be a felony in Wisconsin if that ban is found to be an effect. And I expect we`ll hear from the court soon as to what the state of the law is.
MELBER: What if, again, legally, an individual, a citizen was trying to perform an abortion on another person or potentially as construed by the law on themselves?
KAUL: You know, except to save the life of the mother, the only abortions that would be lawful under that mid-1800s abortion ban would be self- administered abortions. And that`s because there`s an exception that says that the mother can`t be prosecuted. But that is incredibly backward and incredibly dangerous.
And so, it`s my hope that we will see our courts step up, and be clear that that ban isn`t an effect. But in the meantime, you know, we are not going to be enforcing that ban through my office, it`s, it would make women in Wisconsin, less free, less equal, and less safe, and we`re not going to do it.
MELBER: And many of the laws have been referred to as trigger laws or more product of a recent effort to say that as soon as Roe falls, the state is on record or ready to -- basically go through that what is that open door. You`re describing something that`s much older. Is it automatic that old laws kicked back onto the books in other areas, or is this specific to the abortion legal landscape, or is this just a generalized problem? And once you get clarity from the courts, will you enforce whatever remains if there is some sort of prohibition?
KAUL: Well, first, we don`t have a trigger law, a number of states do but like Michigan, we have a pre-Roe ban that was never repealed. Now, whether that springs back into effect after being dormant for almost 50 years, is really an unprecedented legal question. Because, you know, it`s not normal to be in a position where rights that had been, you know, guaranteed for Americans, all of a sudden, were taken away by the courts, certainly not after 49 years.
So, we don`t really have precedent for this. And ultimately, courts are going to need to decide, but I will say that a law passed in the mid-1800s. That has been dormant for almost 50 years. You know, all of a sudden, having that come back into effect from my perspective is really inconsistent with our notions of consent of the governed.
This is not something that Wisconsinites voted for, certainly not in this generation or the century even. So, all of a sudden having it go into effect I think would be a mistake.
MELBER: Understood, and again this is the front lines of what is happening in many places. So, we want to hear from you, Wisconsin. A state that went for Biden, not a state that people might associate as the same as Mississippi, and yet very interesting to get your perspective of what your office is doing. Attorney General Kaul, thank you.
[18:55:00]
KAUL: Thanks for having me.
MELBER: Absolutely. We`ll be right back.
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MELBER: Republican Congresswoman Mary Miller speaking out about Roe this weekend at a Trump rally and upsetting many.
(BEGIN VIDEO CLIP)
REP. MARY MILLER (R-IL): President Trump on behalf of all the MAGA patriots in America. I want to thank you for the historic victory for white life in the Supreme Court yesterday.
(END VIDEO CLIP)
MELBER: You heard her clapping and others. She made a reference to quote, white life. Her offices say she misspoke. But it touches like so many of these issues on what exactly it is people are cheering for. We want to show you that before the hour was up. "THE REIDOUT WITH JOY REID" is up next.