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Transcript: The Beat with Ari Melber, 9/20/22

Guests: John Flannery, Chai Komanduri, Dave Aronberg

Summary

Special prosecutor expressed skepticism with Trump team`s claim that the former president had declassified documents seized at Mar-a-Lago, asking them to identify which ones were declassified. House January 6th probe preparing final report eyeing lessons from 9/11 to MLB use of performance enhancing drug probe. Chai Komanduri, a veteran of three presidential campaigns joins Ari Melber to talk about Congress preparing for a new January 6th hearing eyeing lessons from 9/11 blockbuster reports. Dave Aronberg a state attorney from Palm Beach County, Florida joins Ari Melber to talk about how Ron DeSantis tricked migrants with a fraudulent and illegal scheme.

Transcript

NICOLLE WALLACE, MSNBC HOST: Clear that the vice president`s role in certification is merely ceremonial.

Thank you so much for letting us into your homes during these truly extraordinary times. We are so grateful. THE BEAT WITH ARI MELBER starts right now.

Hi, Ari.

ARI MELBER, MSNBC ANCHOR: Hi, Nicolle. Thank you so much.

Welcome to THE BEAT. I`m Ari Melber. And we begin with the Trump team and the Justice Department in court today with the special master actually pressing on Donald Trump`s lawyers for evidence. NBC reporting that the judge was basically skeptical of the thrust of the Trump argument, pressing Trump`s lawyers for refusing to substantiate Trump`s claim that the declassified Mar-a-Lago documents, somehow, that there were declassification claims that could be supported.

Indeed, the judge seemed doubtful of this entire defense, telling Trump`s lawyers you can`t have your cake and eat it, too. So there may be a bit of a rude awakening now that the special master is on the job. Again, you might have heard me say this if you follow our coverage. There was a procedural step that the Trump folks got which did slow things down, and they wanted that. But procedure is not how you win. It`s not how you get out of the clear. It just is a step, a process, and now that they have to deal with this actual judge and deal with a special master and deal with what is still a fact-based court system, well, you can see they`re already having trouble.

Then you have something going on in Florida, where many of the courts lean conservative. You have a chaotic start. Bloomberg reported that many people who dialed in did not actually mute their phones. Bloomberg calling it the descend into chaos, although that might be a bit of headline writer`s overstatement. People were then screaming at people to mute, and then someone saying, God bless America.

Today`s hearing comes on the heels of Trump`s attorneys pushing back against something the special master that they sought then demanded, which was, if you did declassify stuff, and again that could be a valid defense if true, well, which things did you declassify? So, is that a hard question to answer? Again, I`m not trying to give shade. If a president as president declassified a bunch of stuff, well, that`s under the law a good defense. We can debate whether they should have, but legally you`d say, done, declassified.

But if that`s your defense and you can`t tell us, or in this case, the special master, that you requested, you can`t tell him what you declassified, that defense is kind of evaporating in plain sight. Then you have this scuffle over the DOJ`s review of these materials. There`s an argument about whether the documents with classification markers, does that negate the privilege claims? Trump`s arguments here are basically throwing a lot of different stuff at the wall.

"New York Times" also reports that one White House lawyer, you might remember from the January 6th hearings, Eric Herschmann, warned Trump late last year that there could be legal liabilities, basically trying to help him and saying, in other words, just give the stuff back. Now, he was also on the inside when they were plotting various ranges of efforts to either stall the January 6th certification, overthrow the election, or even stage coups.

So Herschmann, while not the most famous lawyer, you`ve got Barr, you`ve got Giuliani, he was one of the people in the White House Counsel`s Office that we really only learned more about from those powerful hearings and his own testimony about pushing back.

(BEGIN VIDEO CLIP)

ERIC HERSCHMANN, FORMER WHITE HOUSE LAWYER: What they were proposing I thought was nuts. Flynn screamed at me that I was a quitter and everything, kept on standing up and turning around and screaming at me.

(END VIDEO CLIP)

MELBER: Let`s get into it now with former federal prosecutor John Flannery.

Welcome to THE BEAT, sir.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Good to be with you.

MELBER: Absolutely. I mentioned the procedure because while it is the type of law that is the most boring, I believe it`s an important substantive distinction from, did you steal documents? Did you lie to the government? Are you in trouble? That`s all over here on substance, and they have not -- you tell me what you see -- but they have not defeated any of those concerns yet, versus, should there be a double check? Can you get extra time? Can you pause certain things?

They did, I would argue, procedurally get that ground. Now they`re in court, and it`s not going as well. What do you see?

FLANNERY: I think they`re probably saying, please don`t throw me in that briar patch. But they wanted this judge. They wanted to have this matter before him, and he has a reputation, and I`ve never appeared before him, but he has a reputation in the Eastern District of New York as being by the book and not anyone`s patsy, if you will.

MELBER: Yes.

FLANNERY: The motion that starts this whole thing is Rule 41-G. You have two prongs to challenge a search. And it is, one, there is an unlawful search and seizure. There`s never been a credible claim of that here. And the other is that you want to return a property, presumably that you have some right to, like a passport perhaps that was mistakenly taken.

[18:05:08]

I don`t think they`ve solved either one of those, but Judge Cannon has opened up this whole thing. And the only thing that a special master would normally look at would probably be the attorney-client privilege materials, whether or not they were privileged. And that`s difficult in some ways because if there`s a crime ongoing, like having documents you`re not entitled to have, that ongoing crime would make any, quote, "alleged privilege," evaporate. So that`s the toughest question that you would have here.

MELBER: Yes.

FLANNERY: The second part is if you want this property back, it really have to be yours, and I don`t know why lawyers have to say things like possessory interest.

MELBER: I agree.

FLANNERY: But Trump has no possessory interest, you know, we kill the language because we don`t want to understand what`s going on. So he does not -- he`s not entitled to that document that has to do with nuclear possibilities in some unknown foreign land that may compromise all manner of things, including national security.

MELBER: Yes, I`ll jump in to say, you know, this is important, because the special master is there on the error rate. If there are errors, and there can be in human endeavors where many people are involved, then absolutely anyone, any search subject, including Donald Trump deserves to get back anything taken in error. But that`s what I`m calling that review.

The larger question of the boxes and boxes of stuff that the DOJ signed off on by Garland and overseen by an independent magistrate they are stolen goods. Whether he`s prosecuted for it or not is a more difficult question for reasons we`ve reported on the show, the president`s role there is different because there was access to intel. Very different from, say, a coup. You can`t say, well, a while ago I had access to -- no, you can never stage a coup.

What he did on the 19th would be legal, maybe illegal on the 21st, and you could imagine prosecutors making a prudential judgment not to indict. Or, if they feel they were obstructed along the way by lawyers and then ordered by the former president, so they could make that call. But my point being, all of that is on the substance. When you go through the master and this process, it`s now seeming to shift, as I mentioned, and so you can finish the point you were making about 41-G.

I also want to get your reaction to this rather extraordinary exchange again stuff they might not have wanted to lean into. Trump lawyers acknowledged Mar-a-Lago probe headline could lead to indictment. "Washington Post" reporting on this, saying, they write, they don`t want Dearie, the special master, to force Trump to disclose a defense to the merits of any subsequent indictment."

And they describe that, the "Post`s" view is that`s just a remarkable statement that acknowledges the possibility that Trump or his aides could be criminally charged. Your view of that?

FLANNERY: Well, it seems that Trusty has said what a good criminal defense lawyer would say. I don`t want to give you anything that could be used against my client because we appear to be on a track to be prosecuted. And of course, I mean, the judge basically said, you can`t have your cake and eat it, too, as you said in the introduction. He said there`s a burden. You have to come forward. Was this an unlawful search?

Is this your property, and if you can`t prove it then I`m going to rest on the fact I have a prima facie evidence that this is information dated documents, high secret, top secret that is not yours. It belongs to the executive. You are not the executive. Get over it. You lost the election. Biden is the executive. And so this is simpler than has been written and talked about because people, maybe unlike you and I, who are not lawyers don`t get at the truth of it.

What is really going on here? What`s really going on here is an old-time defense that Judge Dearie knows a lot about, which is justice delayed is justice if you`re the defendant, and you hope that anything will happen, including the fact that somebody will get in office even if not you and give you a pardon. And that`s what`s going on here.

MELBER: Right.

FLANNERY: And in response to the judge`s calendar, he was -- there was a November date, and the judge`s -- in his proposal said he would have this all done by November 7th. And Trump`s lawyers were pushing to change that date in a letter they sent to him, I believe last night or early this morning. So, you know, this is Trump at his obstruction best.

MELBER: Yes. And you --

FLANNERY: He`s getting his results.

MELBER: Right, and you remind everyone with the nuance we`re accustomed to that at the outer edges the procedure can become substantive if yes, you can run out the clock to the point that you evade justice, but it`s not the judge`s first rodeo.

John Flannery, we have a lot booked tonight. So I`m going to let you go. But I appreciate you kicking us off.

FLANNERY: Nice to be with you.

MELBER: Nice to see you, sir.

We have our shortest break, just 60 seconds. When we come back, I have something very special for you. I mentioned it earlier in the week. We`re going to get into this last final January 6th hearing and a special announcement about the January 6th final report which does involve me.

[18:10:04]

I`m going to share it with you tonight when we`re back in one minute.

(COMMERCIAL BREAK)

MELBER: Congressional hearings can be quite dry. Most don`t even make the news, but the January 6th Committee`s eight hearings and their new testimony presented to the nation has proved riveting. Now the committee is holding its ninth hearing next week with new witnesses, new evidence and more material from the Secret Service that`s emerged we expect to be a part of this.

The committee has really established itself as one of the most effective in modern congressional history. And there`s actually a link here to America`s past time, baseball, and they probe into steroids.

(BEGIN VIDEO CLIP)

CASSIDY HUTCHINSON, FORMER AIDE TO WHITE HOUSE CHIEF OF STAFF MARK MEADOWS: The president reached up towards the front of the vehicle to grab at the steering wheel.

PAT CIPOLLONE, FORMER WHITE HOUSE COUNSEL: I think I was pretty clear there needed to be an immediate and forceful response.

REP. HENRY WAXMAN (D-CA): The use of performance enhancing substance was pervasive for more than a decade, and that everyone in baseball -- the players, the union, the owners and the commissioner -- were responsible.

ROGER CLEMENS, FORMER MAJOR LEAGUE BASEBALL PLAYER: Let me be clear. I have never taken steroids or HGH.

(END VIDEO CLIP)

MELBER: What are we doing here? What`s the link? Well, some of those last clips grew out of a House probe on cheating through steroids and performance enhancing drugs, and there was a 20-month long independent investigate and report that came out in December 2007, 409-page tome. It was officially named the report to the commissioner of baseball, an independent investigation into the illegal use of steroids and other performance enhancing substances by players in Major League Baseball, because people write long report titles.

But it was quickly dubbed "The Mitchell Report" after the Senate leader who led that probe and so many other types of government and independent investigations. He would go on to work for Obama. That`s how many remember him now. The investigation had blockbuster hearings. There was testimony from a coach, Brian McNamee, who admitted under oath he injected players with steroids. It even led to the indictment of a baseball star Roger Clemens for perjury and obstruction of Congress.

Why is this back in the news tonight? Well, for one thing, although the subject was very different -- baseball, not insurrection -- it reminded people that obstructing Congress can really be a crime. Clemens did ultimately beat that case. The independent report made news, it upended the subject, baseball, it shaped all kinds of events. And it was so seen as so credible and sober when it was released that some of its accused targets like Roger Clemens would really go out of their way to avoid attacking the Mitchell report, attacking this government veteran who was doing this serious work. Instead sort of deferring to it saying they only disagreed with their accusers, not the report itself.

(BEGIN VIDEO CLIP)

CLEMENS: I`m not saying Senator Mitchell`s report is entirely wrong. I am saying Brian McNamee`s statements about me are wrong.

(END VIDEO CLIP)

MELBER: What`s the point here? That report matter. Even in an era of TV soundbites and decades of all of these concerns about how governing and media coverage are just simplistic and entertainment driven, there was something about a full report that broke through. Maybe that`s partly because the conventional thorough nature of a long book had a kind of a wait that some of these soundbites don`t.

And now, as mentioned, this January 6th Committee is working on their report, with an eye on the history of other reports, congressional, independent, governmental, and the history they intend to make. So we have more on that in a few minutes, and I have an announcement to share with you about some of my work on this topic, which as you can tell, I`m excited to share with you.

[18:15:02]

But let me continue our report on these reports and the power of them. Consider another high watermark in this arena. The 2004 9/11 Commission report. Exhaustive, meticulous, a probe into those terror attacks that murdered so many innocent Americans and upended society, changed foreign policy. That commission conducted over 1,200 interviews. They got over two million pages of material, we checked. And there were many questions that required investigation from the role of America`s supposed allies, the Saudis, funding terror to the intelligence failures of more than one administration.

That report was viewed as a vital contribution to our understanding. It actually moved over 150,000 copies, its first day out. It helped correct the historical record, shattering myths that were driving conspiracy theories the "Times" reported when it came out. The politics were divided then as now. There was still the controversial war in Iraq roiling America.

The report had revelations and criticism for many political leaders, but again, this can happen sometimes when a report is so thorough and so serious it can`t be ignored. It even draws bipartisan acclaim.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, FORMER PRESIDENT: They`ve done a really good job of learning about our country.

REP. NANCY PELOSI (D-CA): We would do everything in our power to protect the American people, to fight terrorism.

BUSH: Learning about what went wrong prior to September the 11th and making very solid, sound recommendations about how to move forward.

PELOSI: Two and a half years ago, the 9/11 Commission took giant steps to do just that.

(END VIDEO CLIP)

MELBER: The 9/11 report also tackled issues beyond just enforcing the law. And there is a real parallel here. The government at the time was already prosecuting any 9/11 attackers it could find. Just as today the government is prosecuting some of the January 6th attackers, certainly the people who trespassed at the Capitol, and the committee has heard from security experts on that. The history`s instructive because it shows that reports like this have the power to instigate real change beyond just what the government is already doing.

So, yes, you`ve got to prosecutions going on, but the 9/11 report went into broader terrain that mattered. It pushed other reforms that might prevent problems in the future. They propose the creation of two intelligence entities which were then established. It sparked new safety rules for flight passengers, for suspicious activity warnings, stronger air cargo screening, which was not going on before it was suggested in the recommendations of the probe, which were presented in the report.

You get the takeaway here. When done right, the reports can really matter. Even though it almost sounds old fashioned. What, there has to be a book? We should also note some of these types of reports have been seen as kind of a fizzle. There was a tower commission report about Iran contra. It didn`t have a lot of impact. The Warren report on the tragic assassination of President Kennedy and the law enforcement problems at the time. It didn`t yield the widespread acclaim or impact of the 9/11 report.

And the January 6th Committee members, they know that history better than many, the precedent about past reports and how vital it can be to use that one shot at the end, and try to get it right. We also know Congress sees this report as the capstone and the winding down of a special committee`s work like 9/11, because the committee has been focused on its end game. There was an initial plan to finish all those hearings by summer and then release the report in September this month.

That timeline has already been delayed. Chairman Thompson had mentioned a possible report in early fall. This week he`s saying the report will come before the November election, which has some D.C. reporters viewing that as a kind of collision with politics or election attention. There are clues the report will go beyond these hearings, that it will release details that were not even covered in the hearings.

Like the 9/11 report, we are told it will also push those policy reforms to safeguard and even MAGA-proof the transfer of power in our democracy. So this level of planning, even sometime intrigue about the report`s very release shows how seriously the committee views it with members who stake their careers on the work, which doesn`t just mean a hearing here or there, or a headline here or there. It means the book, the report, the conclusions for history.

We`ve heard from member who see this probe`s work as possibly the most important thing they`ve done in their long careers. So as of tonight I can tell you we know the what more than the when. As a journalist and a lawyer I think the report could prove important because it is the place to lay out the entire evidence of the insurrection and the coup attempt.

[18:20:08]

Let me explain what I mean by that because it`s not rhetoric. I mean this legally. We have many federal cases against insurrectionists. They do not go at the whole thing. And they`re not supposed to. For fairness, those cases overseen by the attorney general focus on each defendant`s actions or the actions of any group that work together, and then juries decide the guilt of each person individually.

And that`s a principle of a fair justice system. No guilt by association, no group profiling. So those are the cases. And what that means is there is work left to be done. It means the report will be the most comprehensive subpoena-backed public accounting of this whole plot together, this plot to overthrow your democracy. Sounds like it will at least be worth a read, and like other government reports people could read excerpts in the press.

When it comes out, we could follow the coverage, but people can also choose to get their own copy as a book, which brings us to tonight`s announcement for you. I am writing a new accounting of the coup conspiracy to overthrow the election by Donald Trump and his aides, and I`m publishing it along with the January 6th Committee report when it comes out. This will be Harper Collins` official edition of the report. I`m showing you the forthcoming cover right here. And it will include what I`m writing honestly right now, my new original piece on the coup conspiracy to overthrow the election, available only in this book you see.

So right now, you can go preorder this book. It will go to you first when the report comes out, be that in the coming weeks or late fall or potentially later. You can go to Amazon or Barnes and Noble or any independent book seller Web site. Search "Melber Jan 6th" and just click preorder now. And then it`ll come to you when it`s ready.

Now, you can also get it from your favorite independent bookseller in person when it comes out. I know different people like to do things different ways. Online, search "Melber Jan 6." Order it now, preorder, or get it wherever you want to get your books. Your call. Either way you`d be the first to get it. You`ll have the whole January 6th report and my piece on the coup conspiracy. And I want to be transparent with you. Publishers require you list a release date.

So you see here the listings currently say October 8th. That is only a placeholder. As I told you tonight, the committee has not even announced a date. That`s just an estimated date from the publisher. No one outside the committee yet knows the exact date. But if you order it, you will get the report whatever day they choose, and my piece on the coup. You just search "Melber Jan 6" online.

Now, this a Harper Collins book. It is independent. It`s not affiliated with Congress. I also want you to know while I`m obviously inviting you to read my piece on the coup and order this book, there are alternative ways to read the report, including downloading it online so I do invite you to order it. I invite you to check out what I`m writing. But there`s no monopoly or anything on the Jan. 6th report or the ways to get it.

So you can preorder it now or you can pass and wait. I promise you we also will still cover the news of report for you on THE BEAT and our new segments on YouTube which we do make available nightly to everyone for free. So order it or wait. Now you know.

I`m just excited to share all this with you. And there, I did. I guess I made it through this whole announcement without quoting any lyrics, which is weird, although to paraphrase Rick Ross, so much action you`re going to want to look. Printing paper, boy, I even wrote a book. Fact check, they wrote the book. I`m writing a 10,000 word foreword, but you got to start somewhere.

As for the committee, well, this public phase of the hearings, the first primetime hearing, do you remember when that was? Would you guess like, I don`t know, half a year? It was actually just three months ago in June. And that`s shaped the public understanding of what happened. It`s been a busy couple of months there, and the committee has referred cases that already led to two indictments and one conviction of Steve Bannon, and prodded DOJ and other prosecutors about the work they`re doing.

This next final hearing is coming as soon as next week, although we don`t have final details on witnesses or other things we`re tracking. The last thing I`ll say about this is I do expect that as this probe moves forward towards its finality, toward its legally required report under law, it`s going to have to tackle the question of potential criminal referrals implicitly or explicitly. It`s going to make the case on policy reforms that would defend democracy as we showed in our history lesson tonight so that America might never get this close to a January 6th again.

[18:25:05]

And the question that hangs over all of it is still the original question. Will there be accountability for the top people who led the coup efforts, people so powerful they didn`t have to step foot in the Capitol to spark an insurrection? They didn`t have to show physical courage, because just like a lot of other criminal organizations, the top mob bosses, they`re not even armed even though they`re involved in a lot of harm. And will there be any accountability for the beneficiary of what is a documented attempted coup, Donald Trump?

I went through the book announcement. Next we turn to a very special live guest on the history, the precedent, and where we`re going, Chai Komanduri, next.

(COMMERCIAL BREAK)

[18:30:27]

MELBER: We are back with Chai Komanduri, a veteran of three presidential campaign -- campaigns including the Obama-Biden campaign. Welcome back.

CHAI KOMANDURI, POLITICAL STRATEGIST: Good to be back, Ari.

MELBER: We`re tracking a couple of stories related to the insurrection, the return of these hearings after the end of summer fall break. The forthcoming report, which I just walked through, and full disclosure, what I mentioned that I`m teaming up with HarperCollins to release an edition of the report with my intro and include conspiracy, although, as I told viewers, I hope they preorder it tonight, but they can get it more than one way.

So, we are news agnostic, although we`re involved. And so, my first question to you is on the hearing and just the report in general. How do these things matter in your view, given that there are examples like 9/11, where it`s almost indisputable it matter and it versions like Iranƒ_"Contra where it was much less?

KOMANDURI: Well, I think that the example of Iranƒ_"Contra is the one that sort of gives me the most nightmares. What happened with Iranƒ_"Contra was they basically issued the report, and there was kind of no follow-up action. There was no real recommendation for what should happen to Ronald Reagan. What should happen to George Bush Senior was vice president, and former CIA director at the time.

There was a huge amount of evidence that we now know, that was withheld from that committee, that would have really changed the outcome of that. And what occurred was there was this void that Oliver North swept into, and he was able to reframe the entire Iran-Contra scandal on terms favorable to him and to Republican conservatives.

What the January 6 Commission has done, I think, very skillfully, is it has avoided an Oliver North type situation where somebody comes in hijacks the hearing and can subvert it and turn it into something that, you know, would be a post-truth or opposite of the truth of what has occurred.

However, one thing that we still really need is we need a strong follow-up action, some sort of recommendation for an indictment, some kind of penalties and punishments that should be meted out to the people who the January 6th Commission has proven very conclusively have -- rather conclusively have committed crimes.

MELBER: And that goes to something I mentioned at the end, which is whether you technically refer or not can be a legalistic thing. And as you know, we try to do law but not legalism around here. But whether you make the case, I mean, it seems clear that aspects of the hearings in the work thus far, for example, made the case that this is broader than the 6th.

I`ve reminded folks, the impeachment, which was fresh off the 6th was all about the 6th, it was one count, and it asked whether the speech incited the insurrection. And I`ve said that`s a high bar. That`s actually a hard case to prove. Because I can point you to other rallies where people have said all kinds of things. And I`m not sure that the speaker goes to jail, legally.

But when you wide now, and you start to show, well, there were people who weren`t on site, who were as are more culpable than those who are currently being indicted, that says something. And so, how vital do you think it is that the report and its substance and the understanding of it lands on, well, these people are culpable based on the evidence?

KOMANDURI: I think it`s extremely essential. And I think we have to remember -- remind ourselves, we are dealing with Donald Trump. You`re not dealing with Roger Clemens, or even George W. Bush or Ronald Reagan, or --

MELBER: By the way, did you like the Roger Clemens memory lane?

KOMANDURI: Oh, I did. I -- you know, I was -- I feel very ashamed. I was actually a very big Roger Clemens fan. And his fall from grace was really, really brutal for me to endure.

MELBER: And he beat the case. I said he did beat the case, although whether he was 100 percent accurate to Congress, open debate.

KOMANDURI: Yes, but I think that one of the things was that baseball players, you know, it`s not about legal whether you know what they do legally. It`s really a character issue that goes beyond that. And I think that`s also true of politicians. And it`s something that Donald Trump kind of exploits.

I mean, Donald Trump is a con artist, and he will use whatever opportunities given to him to spin things the other way. One thing we should remember is there`s a great movie called The Sting with Paul Newman and Robert Redford, where they`re playing con artists.

And a character asked Robert Redford, how is it that Paul Newman`s character is so good at poker, and Redford simply said, he cheats. And that`s very, very true of Donald Trump. Donald Trump cheats. He won`t stick to the facts. He won`t stick to the truth. He will simply shape the truth as he sees it. And he will use any opportunity to do so.

[18:35:00]

MELBER: Well, and that`s --

KOMANDURI: (INAUDIBLE).

MELBER: Right. And that -- will that`s where it comes into the baseball cheating. There comes full circle, right? And what are the rules, but it`s so much more serious than that. And of course, the entire interaction is a type of cheating, but it`s more severe. The armed rebellion is definitely not reduced to just cheating it`s whether we keep our democracy. I think that the other point that I mentioned is important that the 9/11 report wasn`t perfect.

But it was way more factual and sober than much of the discourse at the time. And it did seem to break through that way. And it seems to matter what happened on the 6th, if it didn`t matter at all, they wouldn`t lie about it. If it didn`t matter at all. Trump and Tucker, to your point, would just say, yes, we tried to stage a coup. And when we failed at certain steps, we leaned on violence. That`s what we did, they would just say that it is a tell.

And I think a ray of hope of a kind that they have to lie about it because Tucker knows if people understand the facts that`s on video, that`s on tape of how violent it was that they really meant to assassinate Pence, that those secret service really saw it at that level. That`s what happened that they lose people at a minimum. Maybe that`s a crass way they look at it, but they at least know that. Instead, here`s what Tucker is saying last night.

(BEGIN VIDEO CLIP)

TUCKER CARLSON, HOST, FOX NEWS: And January 6, which was a non-violent election justice protest and covered, of course, by the constitution, the United States, excluding the people committed vandalism, but you have a right to assemble if you want.

(END VIDEO CLIP)

MELBER: Final question, what does it tell you that he has to lie to viewers who at least watch cable news, there was footage of violence on Fox that day. He has to lie and claim that it was peaceful, and there was only some vandalism.

KOMANDURI: Well, he`s worried about this report. And he`s very worried that this report can potentially pierce the bubble that he and Donald Trump have created. You know, there is a Fox News bubble, there is a bubble online with people like Alex Jones, etc., who spin conspiracy theories. I think we saw Donald Trump cater to that with the QAnon rally he had this weekend.

That`s a bubble that the January 6th report will have to pierce. And that makes its mission very different than even the 9/11 report had to deal with. You know, we live in a different information ecosystem. One where people can kind of close themselves off and believe what they want to believe.

You know, one of the things that I kind of always remember about the movie, The Prestige is Michael Caine said, part of the success of a magician is that the audience wants to be fooled. That is something that we`re dealing with very much right now. We have an audience in this country that wants to be fooled by Tucker and Donald Trump and we have to break that, we have to pierce that.

MELBER: Yes. And -- and I`m just thinking who would be pen and who would be teller in the GOP?

KOMANDURI: Well, teller is guessed, the one who doesn`t speak that would probably, unfortunately, be Mike Pence, who has not really said enough or really anything of substance considering how much of these allegations swirl around. So, I think it`s clearly the one who doesn`t speak up bootstrap believes teller would be Mike Pence.

MELBER: And that raises another question and I hate to expose ourselves as such nerves as if we needed more evidence. We`re both into magic. But I would query whether they -- you know whether DeSantis is the flawed substitute David Copperfield, to Donald Trump`s hardcore heroine houdini of lies.

KOMANDURI: I think that`s -- that could be accurate, but I do think that a better way to look at is the movie Prestige where you see Hugh Jackman`s character, Christian Bale`s character as magicians, they`re one-upping each other. And I think that one of the things DeSantis did with that stunt with Martha`s -- at Martha`s Vineyard was it really did one up Donald Trump and Donald Trump very much realized it so he had to one-up DeSantis with that QAnon rally.

MELBER: Yes, well, you as you say, right, where does that leave you. You know, we were talking about movies. Chai I don`t want to break the fourth wall. But on God, my producer just said to me in a tone of somewhat were exhaustion, we got to go. Good to see you, sir.

KOMANDURI: Good to see you.

MELBER: Chai, mentioned Ron DeSantis. It was a stunt. In many ways, it was a lie. It is backfiring in court. We`ll explain next.

(COMMERCIAL BREAK)

[18:44:17]

(BEGIN VIDEO CLIP)

JAVIER SALAZAR, BEXAR COUNTY SHERIFF: What infuriates me the most about this case, is that here we have 48 people that are already on hard times to just be exploited and hoodwinked into making this trip to Florida, and then onward to Martha`s Vineyard for what I believe to be nothing more than political posturing.

(END VIDEO CLIP)

MELBER: Florida Governor Ron DeSantis facing well, more than a backlash, an actual set of legal questions. The Texas sheriff there speaking is launching what they`re calling a criminal probe into what may have been the fraudulent inducement of Venezuelan migrants to go to Massachusetts, specifically Martha`s Vineyard where DeSantis wanted to score some sort of political points.

A Massachusetts lawmaker calling for a federal human trafficking probe and lawyers for the migrants who are still seeking asylum. These are real human beings with real immigration and safety challenges have filed a federal class action suit against DeSantis. It cites a brochure migrants received, that`s something that they got in writing, promising eight months cash assistance, housing and food assistance, schooling for their children, and more.

[18:45:00]

Now, the investigations will determine whether DeSantis was directly involved in this and what government resources were spent and what abuse of power issues come up. None of that was true. The benefits were only for refugees. So, the migrants were not refugees under the legal status, which means as a practical matter, they were handed something and induce them to do this action that was completely false.

I`m joined now by Dave Aronberg, state attorney from Palm Beach County, Florida. Welcome back, sir. I mentioned the brochure still requires investigation, it may very well be that someone lied to them there and doesn`t directly connect to DeSantis. The details and the facts matter. But do you see potential legal liability for the governor here?

DAVE ARONBERG, STATE ATTORNEY, PALM BEACH COUNTY: Good evening, Ari. It`s possible. Now Governor Newsom of California wants DeSantis investigated for kidnapping. And that would be under 18 USC 1201. And that criminalizes kidnapping, through deception. And here you have this brochure that was clearly misleading.

You have this woman called Perla who made false promises to these migrants that step on the plane. So, there was deception here, but more investigation is needed to see if Governor DeSantis was directly involved. And that`s where it gets tricky because --

MELBER: And to be clear, physical kidnapping, which there`s more than one way to apply. But physical kidnapping, and criminal human trafficking, which are very serious, tend to have a few elements that might not ultimately be landed here. But the general fraudulent inducement or abuse of government resources. What do you see there?

ARONBERG: Yes, well, first of all, I don`t think there`s human trafficking here. Prosecutors are not going to charge that because human trafficking takes two forms -- sex trafficking, and labor trafficking. And there`s no allegation that DeSantis use force, fraud, or coercion to get victims to engage in commercial sex or forced labor.

So, I think the statute that would be most at play here would be that kidnapping via fraud, via deception. There`s also other things here you got the federal civil rights lawsuit that could harm DeSantis and the state of Florida in the pocketbook. And there`s also a violation of Florida`s budget rules because DeSantis used part of this $12 million fund to transport these migrants from Texas to Martha`s Vineyard.

When that fun was only supposed to be used for Florida migrants. And there`s a reason you know, Ari, why he went to Texas because he didn`t want the political blowback of shipping Venezuelans from Florida to Martha`s Vineyard when they have family members in Florida, and he`s up for reelection in November.

MELBER: Let me jump in. Here`s what he said today, DeSantis.

(BEGIN VIDEO CLIP)

GOV. RON DESANTIS (R-FL): The problem is we`re not seeing mass movements of them into Florida, but it just coming in onesie, twosies. But there`s no way you can possibly track all of that because it`s on such a small scale.

(END VIDEO CLIP)

MELBER: What do you think of his difficulty explaining even what the basis was if it`s not a mass migration problem?

ARONBERG: Yes, I don`t really even know what he means. I think he was not prepared to be called out on this. And it shows how this stunt is backfiring. It`s I think, hurting him within the Venezuelan community of Florida, whose important constituency as he approaches his reelection.

And also ironically, Ari, this stunt could allow those migrants to stay in the country. And that`s because there`s something called a U visa, which gives you temporary legal status if you`re a victim of a crime, and the more evidence that these folks were being tricked into stepping on that plane, the more likely that they qualify for temporary asylum in the United States under the U. Visa Program.

MELBER: Yes. Well, you walk through a bunch crisply, which is what we expect. Thanks for being here, Dave.

ARONBERG: Thank you, Ari.

MELBER: Absolutely. We turn to women`s rights, what is upending the selection and some extremism caught on tape next.

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[18:53:54]

MELBER: Democrats eyeing good news on midterm polling, which shows that two issues, the backlash to overturning Roe and Trump are boosting what are traditionally a tough midterm season for the incumbent party. Then you have Senator Graham, who has been pushing a nationwide ban on abortion.

Republicans admit now contraception could be on their target list in Michigan. The Republican running to be the top legal authority in the state, attorney general, has been caught now on tape calling for a ban for the so-called Plan B. Morning-After Pill.

(BEGIN VIDEO CLIP)

MATTHEW DEPERNO, POLITICIAN: You got to figure out how you ban the pill from the state.

UNIDENTIFIED MALE: Can you do that through like going up the court?

DEPERNO: Well, how do you stop it from coming in?

UNIDENTIFIED MALE: Do you have any ideas on that?

DEPERNO: Well, I do. But you have to stop it at the border. It would be no different than like fentanyl.

UNIDENTIFIED MALE: So, you think it would be a federal issue, not a state issue?

DEPERNO: No, it`s a state issue. It`s a state issue. The state has to ban it, and it should be banned.

(END VIDEO CLIP)

MELBER: The state should ban it. Polls show most Americans favor allowing emergency contraception measures like Plan B. including the vast majority of Republicans 62 percent, you see on the left. We also reached out to the (INAUDIBLE) campaign for comment. We`ve yet to receive a response, but this is certainly a big issue going into the midterms.

[18:55:00]

Now, if you`ve been enjoying THE BEAT tonight, I`m always glad to have you here. If you joined us late, I did make a special announcement for BEAT viewers that I am writing a foreword to the January 6th report for HarperCollins. You see right here. My foreword is all about the coup conspiracy.

You can go on Amazon, or any bookseller right now search Melber Jan. 6th or go to Melberbook.com. You can order the January 6th report it will ship it to you when it comes out along with my foreword. So, I encourage you to do that. If you choose as always thanks for watching THE BEAT with Ari Melber. "THE REIDOUT" with Joy Reid is up after this short break.

(COMMERCIAL BREAK)

JOY REID, MSNBC HOST: Tonight on "THE REIDOUT" --

(BEGIN VIDEO CLIP)

ERIC HERSCHMANN, FORMER WHITE HOUSE LAWYER: What they were proposing I thought was nuts. I said are you out of your effing mind. Now I`m going to give you the best free legal advice you`re ever getting in your life. Get a great effing criminal defense lawyer. You`re going to need it.