Summary
Fallout after aide to former White House chief of staff detailing violent coup plot and linking Trump to armed rioters on January 6th, exposing Trump to crime of possible seditious conspiracy and defrauding the United States. David Kelley the former SDNY chief joins Ari Melber to talk about Donald Trump`s criminal exposure that is growing. Donald Trump`s former personal lawyer Michael Cohen joins THE BEAT with Ari Melber to talk about the January 6 Committee revealing potential witness tampering by Donald Trump`s allies.
Transcript
ARI MELBER, MSNBC HOST: The incriminating eyewitness testimony which riveted Congress and the nation is opening up new lanes in the insurrection probes today. It builds the criminal evidence against Trump aides and the former president himself after years of shockwaves and meltdowns and all kinds of public discussions, we got to tell you off the top that the new evidence is still drawing reactions like this, stunning and shocking details with many speechless at the portrait of a truly unhinged president.
The "Washington Post" reporting that Trump has had bad moments but few worse than Hutchinson`s testimony. And necessarily there are many places we could begin tonight but we start with the words from one of Trump`s top aides and longtime defenders, a former chief of staff who did not request a pardon. I`m talking about Mick Mulvaney. He`s one of the many government and legal veterans saying that the new evidence does change things because it links Trump to the armed violence in advance.
Mulvaney very simply in plain language lays out how first -- and I want to show this in two parts. First, how in many other debates over Donald Trump, his old boss, including debates over Trump`s very bombastic and at times downright violent speeches, Mulvaney has previously defended his former boss.
(BEGIN VIDEO CLIP)
MICK MULVANEY, FORMER ACTING WHITE HOUSE CHIEF OF STAFF: I have seen him accused of trying to foment violence with no violence at all coming as a result, so I have been defending him.
(END VIDEO CLIP)
MELBER: I have been defending him. But his mind has changed. The defense and now he says in public because of this new evidence that Trump knew the marchers were armed and Trumped push them on anyway, Mulvaney explains.
(BEGIN VIDEO CLIP)
MULVANEY: But after yesterday when she testified that he knew that there were guns on property and that he still encouraged people to go down to the Capital, that certainly changes my mind.
(END VIDEO CLIP)
MELBER: That changes his mind. Now he is not the ultimate arbiter in all this. I will get to that, but it is striking because Mulvaney held the same chief of staff post as Mark Meadows who is now under investigation. His condemnation is striking then for many reasons that his mind was changed specifically by testimony which is a type of evidence in a world of facts.
So yes, many people around Trump don`t care about the facts and they want you to think the facts don`t matter, and some of them will operate like that their whole public lives. Some of them will risk going to jail for that, some of them have gone to jail for that. But I want you to understand tonight Mr. Mulvaney like actually a lot of people right now today after all this is citing the facts, the evidentiary weight of it, the testimony of someone who served his same post, an aide to the chief of staff.
(BEGIN VIDEO CLIP)
CASSIDY HUTCHINSON, FORMER AIDE TO WHITE HOUSE CHIEF OF STAFF MARK MEADOWS: I don`t know. Things might get real, real bad, Cassidy. Keep in touch with me, we`re going to get charges every crime imaginable if we make that movement happen.
Yes, I don`t -- I don`t care if they have weapons. They are not here to hurt me, take the effing mags away.
Mr. Trump then used his free hand to lunge towards Bobby Engel and when Mr. Ornato had recounted the story to me he had motioned towards his clavicles.
(END VIDEO CLIP)
MELBER: And now today, as this all roils the nation, other conservatives are also -- some -- joining the same breaking point. Cracks, for example, in the normally united defense of Trump. In right-wing commentary and media last night and today. So top hosts of FOX News, some of them are still trying to dismiss all of the testimony, but there are also some pretty clear and unusual signs of a partial split within the Murdoch media empire.
One legal expert on FOX telling the audience there the new testimony was worse than America thought. A top newspaper in FOX`s parent company, the "Wall Street Journal," has a new editorial on behalf of the paper which does criticize the committee. I always want you to have to full facts. They do take shots at what they see as a partisan committee but then they note, the quote, "accumulating evidence of Trump`s conduct," they note it`s based on firsthand account and Republicans must face the considerable evidence about Trump`s behavior that would surely be relevant to voters if he runs.
And the split has continued on FOX`s air where the political anchors are still defending Trump amidst the evidence but other legal guests have broken ranks.
(BEGIN VIDEO CLIP)
SEAN HANNITY, FOX NEWS HOST: Anyway, they said this was a game changer. Wrong again. What you heard there is an incredibly bizarre hearsay allegation.
ANDY MCCARTHY, FOX NEWS CONTRIBUTOR: If you had a different perspective being presented here, I don`t think that would be very helpful to President Trump per se because the evidence pretty clear shows his unfitness. It even suggests that he may be guilty of a crime.
(END VIDEO CLIP)
MELBER: Unfitness, may be guilty of a crime. Another word is devastating. Now the last voice you saw there is the conservative former prosecutor Andrew McCarthy. He`s a FOX favorite who wrote a whole book defending Trump and attacking the Mueller probe as the real "Ball of Collusion" during the Trump era.
[18:05:08]
That`s his book. I want you to see that. I want you to see where he`s coming from and the positions he`s taking on other legal issues and people can debate what the Mueller probe ultimately found as a factual matter, but McCarthy is about as hardcore a conservative lawyer as you can get. That maybe why he`s on FOX so much.
And he is out here now saying as a factual matter and a legal matter, and a matter of criminal exposure for Donald Trump, this new testimony is, quote, "devastating" because it implicates Trump directly. As a legal matter, it is also devastating to knowingly welcome and encourage armed supporters.
(BEGIN VIDEO CLIP)
HUTCHINSON: And he felt the mags were at fault for not letting everybody in. He wanted it full and he was angry that we weren`t letting people through the mags with weapons. But when we were on the offstage announced tent, I was part of a conversation -- I was in the vicinity of a conversation where I overheard the president say something to the effect of, I don`t -- I don`t care if they have weapons. They`re not here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the effing mags away.
(END VIDEO CLIP)
MELBER: Take the metal detectors away. Legal experts weighing in, describing that as an illegal order by the commander-in-chief on a day of a national security meltdown where he also was derelict in duty. There`s no evidence the Secret Service followed that illegal order or that they began to let in armed people even if Trump said he didn`t effing care that they had weapons.
Let me tell you tonight as this all sinks in, you know who cared? The Secret Service agents who risked their lives. They did care. The police who were savagely attacked by those same armed Trump supporters, they did care. And you know what else cares? In America, still, the law cares and the law is determined independently.
So while as a matter of journalism in a story that does touch on politics, we just reported on what some Trump aides like Hutchinson and Mulvaney and a fleet of outraged Trump lawyers said and saw and thought after they each reached their breaking point, some people reached it before November, in November, in December, in January, after January 6th.
But remember all of that is skewed politically because it will not be them, although it`s interesting that some of them are done with Trump, it will be independent prosecutors who decide any further charges related to this armed insurrection, for the violence, the attempt to overthrow democracy, to the Secret Service agents, to the police (INAUDIBLE) under independent law and an independent Justice Department that will decide whether there are more indictments merited including of the former president himself.
With that in mind we have a very special set of guests right now. Barry Berke is a nationally known trial lawyer. He has done something no one else in history has done legally, whether that`s a bad thing for the country is a separate question, but he did the yeoman`s work, as you may remember if you see on the screen here as the official House counsel involved in two impeachments of the same president, Donald Trump.
And Joan Walsh, the national correspondent with "The Nation" magazine who writes Mark Meadows as the biggest January 6th coward and perhaps a criminal and eagle-eyed BEAT viewers will recognize Joan as a long-time guest from the start of the show and someone who against all odds was very stern about warning about Donald Trump, his violence, his misogyny, who he really was from the start as a candidate, which not everyone in the press did quite frankly.
Welcome to both of you.
JOAN WALSH, NATIONAL AFFAIRS CORRESPONDENT, THE NATION: Thanks.
BARRY BERKE, FORMER HOUSE IMPEACHMENT CHIEF COUNSEL: Thank you, Ari.
MELBER: Barry, do you see a rising (INAUDIBLE) here?
BERKE: One hundred percent, Ari. It was indeed a game changer. What Cassidy Hutchinson did is she presented direct evidence that`s relevant not only to the events of January 6th but the entire scheme to interfere with the election and prevent the peaceful transfer of power. She put in Donald Trump`s mind that he knew that these folks came with violence on their mind and guns to carry it off. And he wasn`t concerned they were there to hurt him because they were there for another purpose.
And he told them to still fight like hell. You`re not going to take back this country with weakness. Mike Pence didn`t have the courage, didn`t have the courage to do what was necessary. And it`s so important that he wanted to go with them, with the insurrectionists, to try to prevent Congress from doing its job, and when you consider that along with the entire conspiracy and scheme, he first as we`ve seen try to persuade the state election officials and legislatures to do something corrupt and help him win against the law. He then tried to get his leadership of his Department of Justice to do something corruptly.
[18:10:05]
Just say it was corrupt, I`ll take care, I`ll take it from there is what Donald Trump said. That failed. He then tried to pressure Mike Pence with a public campaign and directly. When that failed he was desperate and that`s when he was prepared to go with armed insurrectionists who he incited.
MELBER: Right.
BERKE: So if you`re going to bring a criminal case that`s interfering with a congressional investigation, with an official proceeding. That is a crime.
MELBER: Yes.
BERKE: And overwhelming evidence.
MELBER: Let me jump in because I`ve been dying to ask you something.
BERKE: Yes, please do. Please.
MELBER: I`ve been dying to ask you this. When you were the counselor on the insurrection impeachment, did you have any of this evidence about him knowing they were armed and wanting to dispense with the metal detectors?
BERKE: What we had at that time, and that was within, you know, weeks of these events, we had circumstantial evidence that he had to know about the violence.
MELBER: Now I got a lawyer --
(CROSSTALK)
MELBER: Look what I got to -- but wait. No. Look what he`s making me do. Is that a no?
BERKE: No, we had circumstantial but we didn`t have these people --
MELBER: That`s what I`m asking.
BERKE: We didn`t have this evidence.
MELBER: Right.
BERKE: We didn`t have the direct evidence.
MELBER: It doesn`t imperil what you guys did. It was on a short timetable. You didn`t have this direct evidence.
BERKE: Far from being defensive, I am thrilled about this.
MELBER: So let me ask it this way. What you tried then was largely an incitement case based on the speech, and we all remember on the Senate floor the debates about free speech. Now it doesn`t look like incitement based on a speech. It looks like incitement based on illegal orders, physically trying to use his powers as president, abusing them to try to get the Secret Service to facilitate and furnish access of armed people. Is that worse than just a speech?
BERKE: I want to lawyer you back. We had more than that because we showed his history of promulgating the false lie, the lie that the election was stolen, encouraging violence. Telling the Proud Boys, stand back and stand by. So we had a ton of evidence, overwhelming proof. And I do believe that the senators, Republican senators --
(CROSSTALK)
MELBER: Yes, but I`m pushing you --
BERKE: But we didn`t have this evidence.
MELBER: That`s what I`m pushing you on.
BERKE: We didn`t have this evidence.
MELBER: Is this worse than a speech because it involves him telling law enforcement help the armed people?
BERKE: It shows the lie to all his defenses. When he said, he had no idea that they were anything but peaceful protesters, he knew they were armed and violent. When he said that it was just a speech and he really didn`t intend for anything to happen, no, he was going to go to the Capitol to interfere. Again and again, his entire defense during the impeachment, carrying on, was shown to be false.
MELBER: Right.
BERKE: By a witness who was in the room.
MELBER: I don`t know about you, Joan. This feels like enough lawyers. It`s like two is enough.
WALSH: Never. No. No.
MELBER: So --
WALSH: We can never have enough lawyers.
MELBER: So I really want to press you on that. I think again to just be very clear with viewers because I always try to keep it real, I think Barry is both an excellent litigator but I think there is a patina of defensiveness about what they had because you feel your case was good enough then. All I`m adding is, however good your case was, it looks on the evidence even stronger now with this direct evidence. That`s the law.
BERKE: And I agree with that.
MELBER: You agree.
BERKE: I agree with that, 100 percent.
MELBER: Now that`s law.
BERKE: Agree.
WALSH: Right.
MELBER: This is also a nation with voters and people as I showed the "Wall Street Journal" and others assessing what they`re learning about Donald Trump of his fitness for office and what breaks through. Because you have been right, I don`t mind repeating it, you were right in a time when others said, take him figuratively and it`s not going to be so bad and this and that. What do you see here potentially breaking through or not with Americans?
WALSH: Well, I think the legal part is the part of the argument and I think people are getting that. You know, he was warned by his lawyers. He was told. They tried to take out of that speech, don`t say fight like hell, don`t denounce Pence, don`t say you`re going to the Capitol, don`t go to the Capitol. And he ignored them. And he knew that the crowd was armed and he still said those things.
And he still essentially sent them after Mike Pence and he would have gone to the Capitol but for the fact that his driver wouldn`t take him there essentially. And so I certainly wondered about that. If he stopped from committing crimes because somebody stops him, I mean, he still got liability. He wanted the mags, the effing mags down so that armed people could surge toward him because they didn`t want to hurt him.
And then my final question. They didn`t want to hurt me. Who did they want to hurt? I mean, I just -- that`s just like stood out to me. Who did they want to hurt, sir? And I think he had some ideas.
MELBER: And what do you think Rupert Murdoch`s "Wall Street Journal" is doing when they go farther than usual, trying to open up a hey, Republicans, don`t ignore this?
WALSH: I think Republicans have to be getting more nervous. I`ve said this before. We said it after January 6th, some of them were very nervous, some of them were angry. They feared for their lives and then they all went back to normal. So -- but I think this is more because I think as we saw there are just so much more evidence that he knew what he was doing.
[18:15:06]
He tells Mark Meadows to meet up with Roger Stone and Mike Flynn, you know, the conspirators. Go to the Willard, to the war room with Giuliani. And it`s only, you know, the brilliance of this 25-year-old woman who says to her boss, I don`t think that`s a good idea and he doesn`t go. But -- so I think they are really looking at what they have on their hands and in their hands, and I think we should expect to see more people break with him. I`ve said that before and I have been wronged. So, you know, I will admit that.
MELBER: How effective have these hearings been?
BERKE: They`ve been incredibly effective. They`ve been telling the story. As a trial lawyer they are telling a story. They are showing the harm in real terms, having the officer testify about the horrors of that day. I spoke to a lot of these officers.
MELBER: Yes.
BERKE: They described it as like a gladiator battle for their lives. The lives of their brother and sister officers. And I think you felt that. So I think they`re doing a great job and I also think they`re encouraging more people to come out by telling the story. They have the power of subpoena because they now have a Justice Department that will hold people like Steve Bannon in contempt so people are coming.
MELBER: Yes.
BERKE: So they are using all their tools and they`re telling a very effective story and they`re explaining to the American people most importantly why it matters.
MELBER: Right.
BERKE: This is not about relitigating the past. This is about our democracy. The centerpiece of our system of government are free and fair elections, and if people can get away with this, they`ll do it again and in fact you have people running on the platform that they will do it again. So --
MELBER: Right. Joan?
WALSH: I also love the way Liz Cheney left us, you know, a little clip hangar reading those texts about -- that are basically witness tampering. And she didn`t tell us the names but she knows the names. So --
MELBER: They know the names and you mentioned that, that was something that echoed something Michael Cohen had also heard from.
WALSH: Right.
MELBER: And he`s someone who`s been a Trump lawyer, been through this process.
WALSH: Right.
MELBER: He`s here later tonight to talk about exactly that, these questions of tampering.
I want to thank Barry and Joan for kicking us off here on a big news night.
Coming up, I`m going to go through my special, legal report on the list of criminal cases that Donald Trump could face here, and as mentioned Mr. Cohen joins us later. He`s back on THE BEAT at a time where this exact question, what are you faced with witness tampering and what are the costs of cooperation is front and center. Stay with us.
(COMMERCIAL BREAK)
[18:21:45]
MELBER: This week, we`re living through one of the most significant and incriminating rounds of testimony against an American president in history. But while some of the highlights were crystal clear immediately, the impact on a range of criminal cases can be intricate which brings us to our special legal report now. We begin with state of mind and consciousness of guilt.
Hutchinson heard Trump`s top lawyer provide the kind of legal notice which strengthens the case against anyone who hears it, disregards it and goes on to act in a potential criminal manner because people were warned Trump`s plan to join his armed supporters at the Capitol could get him and others charged with crimes.
(BEGIN VIDEO CLIP)
HUTCHINSON: Mr. Cipollone said something to the effect of, please make sure we don`t go up to the Capitol, Cassidy. Keep in touch with me. We are going to get charged with every crime imaginable if we make that movement happen.
(END VIDEO CLIP)
MELBER: That lawyer quoted there who`s still hiding from the committee while his own deputies have testified and cooperated also named at least two specific felonies.
(BEGIN VIDEO CLIP)
HUTCHINSON: In the days leading up to the 6th, we had conversations about potentially obstructing justice or defrauding the electoral count.
(END VIDEO CLIP)
MELBER: So right there in that firsthand testimony, that`s her describing what he said and he is free to come in, he`s been welcomed in by the committee, we are hearing that basically they were on notice which means Congress and the DOJ are learning that the advanced plans for January 6th apart even from whether violence did or did not occur in advance, say, and no violence was coming for the sake of argument, they were still being warned about breaking the law because Cipollone, the lawyer, had heard detailed enough information that he grasped that the core project was a criminal project.
Let me repeat that. Based on what was said and discussed prior to the 6th, the number one lawyer in the White House said what you all are planning sounds illegal, and he is not like some random neutral careful lawyer.
I want to be clear. What the White House counsel`s job is in any president, any party, the job is to develop every possible even potentially thin legal argument that can defend what the White House wants to do, and then also announce where lines would be crossed. And he warned a line was crossed. The plan for the 6th was criminal. It could be obstructive. It could be fraud.
Now at the top of tonight`s program, if you watched from the top of the hour, you may note we quoted some of the Trump veterans and lawyers who already see crimes here. Now Cipollone is part of that group, somewhat in absentia but he has been quoted for joining a group of people loyal to Trumpy who thought this was a criminal conspiracy or at least could be indicted as such. That`s all just Trump people.
Now tonight in this special report, I want to just briefly broaden out to some independent legal experts who are looking at the same evidence and see some of the same crimes and other ones.
[18:25:00]
(BEGIN VIDEO CLIP)
JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: They were very worried about obstruction. They knew it from the get go.
UNIDENTIFIED MALE: Seditious conspiracy is now in play and that`s very, very serious. Inciting a riot is now in play and that`s very, very serious.
NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: It criminalizes not just actively being part of the conspiracy but someone who assists in the insurrection, and here Donald Trump obviously assisted.
NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: What you`ve got now is a set up for a real thorough grand jury investigation.
(END VIDEO CLIP)
MELBER: So take obstruction. That`s about abusing power or basically trying to destroy a corrupt the vote certification. And we all saw that happened by force on the 6th but what is bad news for the Trump White House is this can also be prosecuted even without having to prove causing violence, for example, corrupt actions or threatening force or attempting to do so can be a crime.
(BEGIN VIDEO CLIP)
HUTCHINSON: The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Trump then used his free hand to lunge towards Bobby Engel.
(END VIDEO CLIP)
MELBER: There`s a debate over that testimony but no one is debating that Trump wanted to go to the Capitol. That is not even debated by the Secret Service. A former prosecutor sees evidence of intent for the crime here.
Now this testimony that we have from yesterday also reveals Trump knew the rioters were armed and he wanted them admitted, and he encouraged them knowing they were armed to go march on the Capitol.
(BEGIN VIDEO CLIP)
HUTCHINSON: I overheard the president say something to the effect of, I don`t care that they have weapons, they are not here to hurt me. Take the effing mags away. Let my people in.
DONALD TRUMP, FORMER PRESIDENT: We`re going to walk down and I`ll be there with you. We`re going to walk down --
(CHEERS AND APPLAUSE)
TRUMP: We`re going to walk down, anyone you want but I think right here we`re going to walk down to the Capitol because you`ll never take back our country with weakness.
(END VIDEO CLIP)
MELBER: Now if Trump said that innocently or ignorantly, then it could be harder to prove incitement. But the same former prosecutor I cited notes the going encouragement of weapons by Trump before that speech you just heard, and says it`s now the smoking gun to prove intent to incite.
Then there is being a traitor, sedition, AKA seditious conspiracy. We know Attorney General Garland is a cautious and careful lawyer, a former judge, and we also know his Justice Department has already found sufficient evidence they think will prove sedition. And we know that because some insurrectionist have been indicted for it.
Now there are veteran prosecutors who see in this new testimony evidence that could link others to the sedition conspiracy. Take Justice Department veteran David Laufman, who sees the testimony showing foreknowledge of the impending violence to the president but also adding the caution that whether Trump joined the conspiracy remains to be seen.
So as I go through each of these potential crimes with you, I will say the simplest way to summarize the conspiracy case is TBD. It is also the gravest case but it is not where charges against White House aides or Trump would start. It`s sort of where they might end if you have the worst possible evidence and DOJ decided to move forward.
Then there is fraud, specifically defrauding the U.S. Take electoral fraud where Hutchinson discusses some of the key dates where things were ramping up for a ploy or some kind of attack being cooked up on the certification of the electors on January 6th.
(BEGIN VIDEO CLIP)
HUTCHINSON: In the days before January 2nd, I was apprehensive about the 6th but when hearing Rudy`s take on January 6th and then Mark`s response, that was the first -- that evening was the first moment that I remember feeling scared.
(END VIDEO CLIP)
MELBER: Scared on January 2nd, as she was closer than almost anyone to what everyone was cooking up, and this is the part I mentioned where things are more intricate. I just walked through a bunch of stuff where it`s like, OK, did they cause the violence, were they armed, did they link with the Proud Boys are not.
This stuff is intricate but that`s not necessarily good news for the people around Trump and Trump if they`re charged for it because Jan 2nd is the day Trump calls the top election officials in Georgia. That`s now under separate investigation in that state. It`s also the time when no one knew in public what we know now that January 2nd is the day when White House aide Peter Navarro who has since been indicted was trying to organize state legislators for a coup to overthrow the votes which he called the sweep.
[18:30:00]
And remember, so much more of this looks different now which is bad for them because they were hiding it then. Why hide these calls and these sweep plan if it was so lawful. Well, you get the answer. Maybe it wasn`t. And now I want to dig in with you to the intricacy. Here`s what Trump`s allies were saying, on Bannon were on podcast, again, on January 2nd, this is across some different points over the hour program.
(BEGIN VIDEO CLIP)
BORIS EPSHTEYN, FORMER WHITE HOUSE AIDE: The vice presidents got a lot of power. And that`s very important to recognize --
STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: The president of the Senate, the vice president of the United States, is hard-wired in and he`s actually a decision-maker. This is not ministerial. Are we to assume that this is going to be a climactic battle that`s going to take place this week about the very question of the constitutionality of the Electoral Account Act of 1877?
JOHN EASTMAN, FORMER TRUMP ELECTION ATTORNEY: Well, I think a lot of that depends on the courage and the spine of the individuals involved.
BANNON: Vice President Mike Pence?
EASTMAN: Yes.
BANNON: I don`t -- I don`t --
RUDY GIULIANI, FORMER MAYOR OF NEW YORK CITY: I`m just a state representative, you mean I get to choose the president? Yes, sir. Yes, ma`am. You do.
(END VIDEO CLIP)
MELBER: This is damning evidence now lined up with what we know. And while there`s a lot of talk about Trump and P.R. and in public, you have to understand and investigators are going to look at this, the role of Bannon`s War Room there. What is being circulated is not designed to go to the whole country.
It`s designed to basically stay in that echo chamber and much of that didn`t get a lot of coverage at the time, although as you may know if you watch this program, we endeavor to have everyone on who`s willing to come on, that Mr. Navarro on. But legally, they were conspiring in public according to some readings of this case. Mr. Eastman, the coup plotter, Mr. Bannon, those two people that I just showed you talking to each other about what they wanted to do on the 6th to steal the election?
Well, Mr. Bannon has since been indicted, Mr. Eastman just had his phone lawfully seized for evidence of a crime. And they were talking then not to the whole country, but trying to sort of launder and socialize these ideas socially through the right-wing so that more Republicans might join them in this sneak attack on the 6th.
Now, then, I want you to listen to this because there`s a lot of privilege here and I don`t mean executive privilege. I mean, the privilege of someone who thinks they can just crime in public. Listen to the development of the specific plans for the 6th and lawmakers that are allegedly being rallied around this plan by none other than Giuliani.
(BEGIN VIDEO CLIP)
GIULIANI: If you look at people like Jim Jordan and Matt Gaetz, and -- gosh, I mean, there -- they are -- they are skilled as some of the finest trial lawyers and Hawley stepping forward -- we`re briefing them and their staffs. Basically, turning over the knowledge that we have to them. They`ll decide what they want to use of it. But that`s going pretty smoothly. We`ll going to have a session today.
We have veterans of this kind of process -- Andy Biggs, and I don`t want to mention just a few but Gaetz, and Biggs, and Jordan -- I`m sorry, we`re missing Mark Meadows. I told him, can you go back and ask a couple of (INAUDIBLE) colleagues. And they were some of the best.
(END VIDEO CLIP)
MELBER: January 2nd, the same day Hutchinson testifies things congealed and she got scared in Giuliani in that absolute privilege and maybe scaring those people, maybe that`s why some of those members of Congress reportedly did request pardons for their actions. Pardons are for criminals because Giuliani is name-checking.
The chief of staff who has been talking this committee, those members of Congress and tying it together to what I showed you earlier, Eastman and Bannon planning to disrupt or defraud the certification to steal the vote. You can prove that you can prove a crime. And then you have the arrogance, which can explain so many mistakes in life. But certainly, in this plot, Mr. Giuliani, a lawyer, a former prosecutor, just casually, almost blindly sharing it all because he still works for the incumbent president.
Maybe he really thought they were going to pull off the coup, and maybe he really didn`t think he`d ever get in trouble. It`s reminiscent of the arrogance of another thug mentality. Rick Ross, who talks about walking in the courtroom, sipping on a beverage. I know the judge, so I got a lot of leverage. Well, that`s a gangster mentality that you`re above the law.
Mr. Giuliani is not. His law license has since been suspended. And many of these people are under investigation. Now turn to Hutchinson saying Meadows wanted to go to the quote, Giuliani war room where Bannon and all these people had been conspiring or planning or whatever you want to call it sweeping.
This was on insurrection eve on January 5th. Consider what I just played you some of which doesn`t get enough attention, although I`m sure the DOJ has it. Consider what they were planning for the 6th and then Hutchinson detailing that on insurrection eve.
(BEGIN VIDEO CLIP)
CASSIDY HUTCHINSON, FORMER WHITE HOUSE AIDE: He mentioned a few more times going up to the Willard Hotel that evening, and then eventually dropped the subject the night of the 5th and said that he would dial in instead.
(END VIDEO CLIP)
[18:35:00]
MELBER: Mr. Meadows with everything we now know on the eve of the insurrection wanting to go be with those individuals with Bannon`s and the Eastman`s at the Willard to plot. That was so important. I mean, wanted to go there physically, maybe if you`re looking at evidence, he didn`t want an open phone line that might somehow possibly create a record. Maybe he just wanted to be there in person because this was so important to him.
But only Mr. Meadows knows that and he`s ducking, testifying. And it`s really striking. Trump`s own lawyers admitting all the problems here. Giuliani and Eastman talked about substituting electors, but of course, this is electoral fraud. It`d be like substituting fraudulent ballots, which is a crime. And they have this backward justification that involves them ultimately, basically saying their electoral fraud plan is illegal.
(BEGIN VIDEO CLIP)
GIULIANI: It would seem to me that the people who are sending forth the certifications, they know are false or guilty of a crime. They are making a false statement to the United States government.
EPSHTEYN: Yes, I was part of the process to make sure that we`re alternate electors --
UNIDENTIFIED MALE: 5th and the executive privilege.
EASTMAN: We can`t count slate of electors that were illegally certified. If you or I were to submit a bank mortgage application to Fannie Mae or Freddie Mac that had that kind of misrepresentation on it. We would be in prison. (INAUDIBLE) my fifth amendment right against being compelled to be a witness against myself. If -- if --
(END VIDEO CLIP)
MELBER: I don`t need to say much more about that. When you see their own words. We have the former head of the famed SDNY, prosecutor`s office in New York David Kelley when we`re back in one minute.
(COMMERCIAL BREAK)
MELBER: We`ve been reporting on how to put together a criminal case. And we have someone who has done that literally for a living in one of the most famed and feared offices in the United States. You`ve probably heard of it, the Southern District of New York, David Kelley was the chief there. Also, lead organized crime and terrorism investigations and full disclosure is my former boss. Good to see you, sir.
DAVID KELLEY, FORMER SDNY CHIEF: How are you, Ari?
MELBER: I`m good. Um. Although you were a great boss. That`s not actually why you`re here. People can factor that information as they want. You`re here because you put these kinds of cases together. We walked through what some independent prosecutors are saying and the new evidence just now. What if any crimes do you think are a stronger case here?
KELLEY: Well, a strong case, let`s just look at it from one way. All the facts that we have or facts that I think could make up prosecutions of any one of the offenses you outlined. I think this seditious conspiracy -- yes, I think well, then kind of would be relevant to a case. That`s not to suggest that the facts make out each one of those offenses. You asked me which one do I think is you know, the lower hanging fruit?
I think, well, certainly obstruction of official proceeding. Inciting a riot, I think is pretty good. I think the toughest one is seditious conspiracy. But if you were able to establish a link between Trump and Giuliani, for example, and Giuliani and the groups, you know, the oath keepers, that would help you with this seditious conspiracy.
I think from a practical standpoint, we look at and we say, well, of course, it happened. Well, yes, that`s, of course, it did happen. But that doesn`t make an (INAUDIBLE) law. And the other thing to think about to, as informative as these hearings have been, let`s look at it from a prosecutor`s standpoint. They haven`t been through, you know, any sort of cross-examination.
They haven`t been in the cauldron of an adversarial proceeding. So, you know, but for instance, you -- Ms. Hutchinson`s testimony yesterday was wow. But you could -- you know, somebody like Barry Berke, (INAUDIBLE) great litigators. If he was on the other side of this, he could tear some holes (INAUDIBLE).
MELBER: What is an example of a question you would pose to her or other fact witnesses that might be relevant to the point you`re making?
[18:40:00]
KELLEY: Well, for instance, with Cassidy, a lot of the stuff she had was hearsay. So, a lot of her testimony is not something that`s going to be usable in a courtroom. So, when the -- you know, the prosecutors are looking at this, they`re going to say, well, that`s really a good lead for me. She`s not a great witness for me for these things that she`s told me what others have told her.
There may be, in some instances, some sort of exception to the hearsay rule, sort of admissions, and so forth, but not by Trump so much. So, I think a good part of her testimony is going to be leads that the prosecutor can follow in order to go to the people who made these statements to her and put and leverage them to come and testify.
MELBER: Make sense. When you look at the way they were telegraphing their plans for the 6th, we played some of that audio. Do you see a governmental crime there where basically, the plan boiled down to get Pence to magically declare they won when they lost, or submit a bunch of fraudulent materials for the same goal, is that a potential crime?
KELLEY: Yes. Actually, defrauding the United States section 371, United States Code used by prosecutors all the time, it`s kind of a catch-all. And it really makes a weak case stronger. When you have a 371 conspiracy. You know, defrauding the United States government here, I think is a pretty, pretty good one. And, you know, tandem with that is really the same case, right?
Of obstructing a governmental function. You know, instructing that -- you know, you`re defrauding the Congress, essentially, by putting forth or conspiring to put forth fake electors, and really what the object of that is to obstruct a government proceeding, government function that would make another offense.
Now, each one of these offenses you cited, but for seditious conspiracy, were five-year accounts. I don`t think, you know, Trump would prosecute. I don`t know that he do, If he`d be able to do five minutes, we get about five years. So --
MELBER: What do you think would be difficult about that?
KELLEY: What`s that?
MELBER: Why do you say that? What would be difficult about that kind of bid?
KELLEY: But, I just don`t -- you know, jail and stuff. I don`t know that he would that -- that`s something he`d be used to. But the -- you know, look, I think the biggest question here is not -- do you have the facts that are going to support this? I think the tougher part of this is prosecutorial discretion. I think that a good prosecutor can find facts here to make out one or all of the offenses you`ve outlined.
The challenge is a prosecutorial discretion decision. Is this good for the country? Is it the right thing to do? Is it going to cause more harm than good? And you know, those are debatable issues and you have to (INAUDIBLE) that the Justice Department going to is going to make.
MELBER: Yes, and unlike most you`ve been in that seat, making those hard calls, and you remind us tonight of some of the issues on both sides, which is important to keep in mind as we try to understand this objectively. David Kelley, good to see you, sir. Up ahead, we turn to another lawyer Michael Cohen. Next.
(COMMERCIAL BREAK)
[18:47:47]
MELBER: And we are back with Donald Trump`s former personal lawyer Michael Cohen, his current podcast Mea Culpa. He`s a principal with Crisis-X and he returned to THE BEAT. Thanks for being here.
MICHAEL COHEN, FORMER PERSONAL ATTORNEY TO DONALD TRUMP: Good to see, Ari.
MELBER: The hearing ended with this warning and evidence about witness tampering. You have been down this road we`re going to put up on the screen, the email you got and some of the -- some of what you heard. Walk us through this and what you thought -- what your thoughts are?
COHEN: So, the words are exactly the same. It was eerily similar when I was watching the hearing yesterday, and I applaud Cassidy for an amazing job. But I was looking at the text messages and the communications that Liz Cheney put up and the words are all the same. You are loved. Right? You are in our corner -- remain in our corner. We will take care of you.
MELBER: What is he saying when he says he`s on you, thinking about you, looking at you?
COHEN: Yes, it`s -- he`s trying to be like a mob boss. He`s throwing his arms around you and telling you you`re protected. I`m the president of the United States of America. I`m the most powerful man on the planet. Either you stay on my side, or you will suffer from my ire. And that`s exactly what happened to me. He has no qualms with not just -- he doesn`t do it.
Remember, I testified and I stated. Donald Trump acts like a mob boss. In this specific case though. His Cosa Nostra is very different. There are no underbosses, right? It`s him. He`s the boss and the underboss, but he`s got the whole slew of couples from Giuliani, Cipollone, Meadows -- um, Ivanka or, you know, Jared Kushner, Ivanka, Don, they`re all couples.
And their job is to do for him what he wants, the way he wants it without him actually telling you to do it. And there`s never fingerprints. That`s another interesting thing when he was young, he had his fingerprints removed. And that`s by Roy Cohn. And I don`t mean it, literally. I mean, figured it out. Roy Cohn, the mob lawyer taught him never to have your fingerprints on anything.
Make sure that -- so that`s why there`s no emails, never had an email. There`s no text. There`s no voice messages. There`s no handwritten notes. Why did he do this? In that way he can always have plausible deniability. That`s a word he used a lot.
MELBER: Let me ask you this because you`ve been through this unlike many. When you see Giuliani, Eastman, Cipollone, each in their own ways ducking the committee, allegedly staying loyal to Trump. Given what you`ve been through, what do you say to them?
[18:50:00]
COHEN: You`re stupid. As I stated, when I was asked that question, how would you describe yourself and they said, stupid. I followed the man into the dumpster fire. And as a direct result, I lost everything. My family`s happiness, finances, my freedom, my law license, my business, they`re going to -- they`re going to suffer. As I warned at the House Oversight Committee. I know what you`re doing. I know the playbook because I wrote it.
MELBER: So, here`s what I have to ask you and follow up. My job sometimes asks the simple questions. There are people around Eastman who say, well, he believes in Donald Trump and he thinks in the end, Donald Trump will find a way to help him through this. What do you say to that?
COHEN: I don`t know, to give him a pocket pardon like everybody was asking for it. Another thing that Donald is so fast to dangle in front, like a carrot in front of a donkey. Remember, they`re the donkey, and there is no carrot. Because with Donald Trump, everything is a con. And that`s what I was trying to warn the entire country when I was the first guy who stepped up and said that there will never be a peaceful transfer of power if in fact, he loses and that he will actually start a war to stay in power.
MELBER: Yes. Well, Mr. Cohen, I`ll tell you this. There`s been a lot of talk about who stepped up when people went through what they went through. You not only spoke out under oath. You also went through a lot for it. And so, I think as we look at what we`ve learned, it`s an important time to hear from everyone. I appreciate you being here, sir.
COHEN: You know what they should have done to, Ari? One quick point. What they should have done, is they should have gone after the low-hanging fruit, like they did with Al Capone. They had. The New York D.A.`s office had. They had him on tax.
MELBER: Well, and we covered that case too. We`ll get we`ll continue the conversation, Mr. (INAUDIBLE) Cohen. we`ll be right back.
(COMMERCIAL BREAK)
[18:56:06]
MELBER: And we have breaking news coming into the newsroom. The January 6 Committee -- Committee has now formally subpoenaed White House Counsel Pat Cipollone. We`ve been tracking several stories including the upcoming swearing-in of the new Supreme Court justice, but we just got this into our newsroom want to put it on the record.
Cipollone who has been pursued for so many reasons we`ve talked about him tonight, now facing an official subpoena from this committee. That does it for THE BEAT. "THE READOUT WITH JOY REID" is up next.