Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: August 4, 2017 Guest: Walter Dellinger, Sam Buell, Michael Isikoff, Jonathan Capehart, Tom Nichols, Evan Siegfried
[22:00:00] ENGEL: That`s it for the season of "ON ASSIGNMENT." We`re grateful to Rachel for lending us her Fridays. We`ll be back in a few months with more stories from other parts of the world.
Now it`s time for "THE LAST WORD." Ari Melber is sitting in for Lawrence tonight. Hi, Ari.
ARI MELBER, MSNBC HOST: Thanks, Richard.
We have a special program tonight. "Trump Under Siege," and we are live right now with some late-breaking news this evening from "The New York Times." Special Counsel Mueller`s investigators have just made contact with the White House. They`re demanding documents about Michael Flynn`s ties to foreign powers. That I can tell you is a first.
Meanwhile, Trump under siege from the grand jury, the internal leaks, and punching back today through a Cabinet official that Trump of course recently disdained, Attorney General Jeff Sessions, calling for a crackdown on the leakers and on the press.
I am Ari Melber, and this is a special hour of THE LAST WORD.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Donald Trump is officially on vacation.
UNIDENTIFIED REPORTER: As new signs Robert Mueller`s Russia investigation is growing in intensity and scope.
UNIDENTIFIED MALE: He can lie all he wants in front of his adoring fans.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: The Russia story is a total fabrication.
UNIDENTIFIED MALE: He cannot lie to the FBI, to the grand jury. This is about matters of law.
JEFF SESSIONS, ATTORNEY GENERAL: This culture of leaking must stop.
UNIDENTIFIED MALE: Sessions scolded everyone today about this.
SESSIONS: I have this warning for would-be leakers. Don`t do it.
UNIDENTIFIED MALE: Classified leaks have played an important role in bringing to light, you know, really crucial public information.
TRUMP: Are there any Russians here tonight? Any Russians?
UNIDENTIFIED FEMALE: He`s the one who keeps bringing this up.
UNIDENTIFIED FEMALE: This is what the president does when he`s backed into a corner.
UNIDENTIFIED MALE: I`m not sure it can hurt him to get out of town for a while.
(END VIDEO CLIP)
MELBER: Mueller has a grand jury and now he wants documents. This late- breaking story from "The New York Times" tonight, Friday. Mueller`s investigators bearing down on Michael Flynn`s financial ties abroad. Now asking the White House for documents related to Flynn, and they`ve questioned witnesses about whether he was secretly paid by the Turkish government during the final months of the Trump presidential campaign. This according to people close to the investigation who spoke with the "Times" tonight.
Now the request is reportedly not yet any kind of formal subpoena. But it is to be clear a new step. Quote, "The document request is the first known instance of Mueller`s team asking the White House to hand over records." And President Trump`s lawyers know that any resistance to this would only speed up Mueller leaning on the grand jury that everyone`s been talking about for subpoenas or testimony.
Now that`s the process. Here is the actual criminal issue tonight. Mueller looking at how Flynn worked with a Turkish-American businessman. Flynn`s business was reportedly paid $530,000 -- that`s a lot of money -- to run a kind of a political-type campaign that would attack the opponent of the current Turkish government.
Now the "Times" wants to know if this was a secret government contract, and Mueller wants to know, quote, "if the Flynn Intel Group made kickbacks to the businessmen for helping conceal the source of the money."
Now you may remember if you have watched our coverage that Flynn already violated the federal rules on registering as a foreign agent. He later conceded that in order to update his filing.
What this new request tonight is about is it suggests to us that the special counsel is further following the money. And "The New York Times" saying that these hidden payments could potentially be considered for fraud charges.
Now all these developments come as NBC News confirmed today with three sources familiar with the matter that Bob Mueller has been making use of more than one active grand jury. This is in multiple districts so that includes Virginia and D.C., the big story that broke yesterday. And those grand juries are issuing subpoenas for records and documents tied to the ongoing investigation.
We have a lot to get to tonight. I`m happy to say a strong panel to begin.
Walter Dellinger served as assistant attorney general and head of the Office of Legal Counsel through 1996, acting solicitor general thereafter. Sam Buell is a professor of law at Duke University, a former federal prosecutor, lead prosecutor in fact for that Enron task force which has some overlap with some of what Mueller is doing now. And Michael Isikoff, a chief investigative reporter for Yahoo News.
Walter, folks are just digesting "The New York Times" report coming here on a Friday like so much news has broken. We`re looking at it in our newsroom. Folks at home may want to understand what does it mean when we say this is one of the first document requests that Mueller has sent to the White House.
WALTER DELLINGER, FORMER ASSISTANT ATTORNEY GENERAL: Well, it means a couple of things. One, I think, Ari, in a later segment, we`re going to wonder how this information got out of the White House and into "The New York Times." but on the information itself, I think it shows how a good- faith prosecutor cannot keep narrowly to Russian influence on the election as his mandate because the whole financial web is so interconnected.
[22:05:05] A prosecutor who wanted to know whether there were, for example, Russian payments being made to officials in the campaign would want to see if there`s a pattern or practice within the Flynn group, for example, of getting covert payments from foreign governments. So I think it shows how I think the money chain is going to be followed, and it`s potentially quite serious.
MELBER: Well, you raise that point. And, Sam, you know as a former prosecutor, bringing charges is not just about crimes. There are a lot of unsolved crimes out there that never get charges. It`s always about having evidence and these financial crimes seem to have a lot more evidence.
I want to read to you what a colleague of yours who has done the same job, Preet Bharara, is saying here tonight. "If true, this request for White House documents regarding Flynn`s work for Turkey much more significant than what he calls breathless reporting about the grand jury."
Why is this significant, and how does it relate to the evidence trail?
SAMUEL BUELL, FORMER FEDERAL PROSECUTOR: Well, because the most important evidence that you get in any kind of complex case like this, particularly a white collar case, is the testimony of witnesses who really know what happened, were in the key meetings, had conversations with people. And the way that you get that testimony is you build cases against those witnesses.
People are not going to volunteer to testify in a case like this. And I think what`s very interesting about this reporting in "The New York Times" tonight is it suggests the possibility -- I`m speculating, but the possibility that Michael Flynn is being targeted as a potential witness in this investigation.
The stronger the case you build against him, the more likely that you might ultimately obtain his cooperation and he may know about lots of other transactions that the special counsel would be interested in looking at.
MELBER: Does that potential have any impact on how prosecutors and investigators would look at what Jim Comey described as Donald Trump`s keen interest in getting the dogs to back off of Flynn?
BUELL: Well, I think that, you know, we`ve all said all along with regard to the potential obstruction of justice charges in this case that the backing off on Flynn was in part potential effort on behalf of the president to reduce his own legal jeopardy because it was clear from the beginning that Flynn was an important individual in this network, in this whole fabric, and a potential witness.
So if, in fact, it did turn out that a case were made, and now we`re several steps down the road, but if it turned out that a case were made against Flynn and ultimately his testimony were obtained in some fashion, whether through cooperation or perhaps compelling him into a grand jury and immunizing him ultimately, something like that, or even convicting him and then taking his testimony, well then that would certainly cast the obstruction of justice case against the president with regard to asking Comey to drop the investigation of Flynn in a much starker light.
MELBER: Michael, why is this coming out now?
MICHAEL ISIKOFF, CHIEF INVESTIGATIVE REPORTER, YAHOO NEWS: Well, because Mueller is stepping up his investigation. He`s requesting documents from the White House, and inevitably that`s going to come out.
There`s two points that I think are significant here. First of all, the fact that Mueller is following the trail relating to Turkey is not that big of a surprise given that, if you remember, on Election Day, Michael Flynn publishes an article in "The Hill" urging the United States to extradite Erdogan`s main enemy, Gulen, from Pennsylvania to Turkey. That was the chief goal of the Turkish government. Now in that op-ed, Michael Flynn was not identified as a lobbyist for the Turkish government or a Turkish- American businessman who had an interest in this. It just popped.
Later, you know, investigative reporting uncovered his ties to this Turkish-American businessman who had close ties to the Erdogan government, and that inevitably led people to follow the money trail and for him to retroactively register as a lobbyist for the Turkish government.
So it`s not a surprise that Mueller would focus on this. But I think it`s absolutely right the important thing here is the leverage that a case about Flynn and Turkey could give Mueller in the core Russia investigation.
[22:10:02] If they can threaten Flynn with serious criminal charges, they`ve got leverage to get his cooperation, and then he`s so central to everything to do with Russia, including those conversations with the Russian ambassador and including the obstruction of justice allegations since, as you noted before, it was Trump`s bringing up and request to Comey to let Flynn go that ultimately led to Comey`s firing.
MELBER: Yes. Right. That`s what we were just saying.
I mean, Walter, what is the theory of the case, then, for investigators? That Flynn is vulnerable and that`s why you`re moving on him or that he might be involved in two sets of crimes, something about Turkey and something about Russia, but you`re willing to let them both go if he cooperates?
DELLINGER: You know, it sounds like both. I think Sam and Mike make the point quite convincingly about why you can`t create the red lines that President Trump said he wanted to have to confine Mueller`s investigation narrowly to, quote, you know, "Russian involvement." That`s not the way prosecutors operate, as Sam and Mike noted.
So I think this is a case that aptly demonstrates that what the prosecutor is looking at is financial influence on those who are running the Trump campaign, as someone who became the national security adviser, and you can`t artificially separate that out.
DELLINGER: From what connections there might be with Russia. It both shows sort of motive and operation on Flynn`s part potentially, and it also provides the kind of leverage they were talking about.
MELBER: And all of this, Michael, is against a backdrop of increasing attacks on the entire special counsel system. Take a listen here to Newt Gingrich.
(BEGIN VIDEO CLIP)
NEWT GINGRICH (R), FORMER HOUSE SPEAKER: Well, of course the White House should be concerned. First of all, anybody who has any doubts about corruption in the Justice Department ought to read Sidney Powell`s book, "License to Lie," which is a tremendous study of both Senator Stephens being destroyed by the Justice Department and the whole Enron-Arthur Andersen case, both of which were basically corrupt.
I worry about the government having that kind of power, and notice what Mueller is doing. He`s changing the targets. He was supposedly going to look into Russian collusion. The articles this morning say, gee, it looks like Russian collusion is going to be hard to prove, maybe because it didn`t happen.
(END VIDEO CLIP)
ISIKOFF: You know, it is extraordinary that the president`s allies are attacking Bob Mueller, a former Republican assistant attorney general under George H.W. Bush`s administration, nominated by President George W. Bush as FBI director, kept on by President Obama for a couple of years. I mean, he is as nonpartisan a figure as you can get. So, you know, it seems to those of us who have followed Bob Mueller for many, many years highly unusual to hear these kind of attacks on his integrity at this point. But on the other hand, this is what White Houses do when they are facing special counsel investigations.
ISIKOFF: They go after the special counsel.
MELBER: Well, and you said he`s nonpartisan.
Sam, another way to put it is to the extent that he has had affiliations with a party, it`s the Republican Party. That`s where he was rising as an appointee, at least when he had taken over FBI and whatnot.
He mentions Enron which you have -- Newt Gingrich does it, too, has a connection to as well and so does Mueller. I guess the opposition research is kicking around. You can`t do the whole topic justice, but anything you want to say about the Enron task force here because it`s something that Republicans seem to think is a kind of vulnerability for Mueller?
BUELL: Well, it`s ironic, Ari, because the Enron task force was created at the instigation of the Bush Justice Department. John Ashcroft was the attorney general at the time. Larry Thompson was the deputy AG, and they certainly consulted with the White House as to how that case ought to be handled. And the conclusion was let`s have a very vigorous task force and let`s wall it off from the White House and let it do its job notwithstanding the fact that some of the targets of that investigation had been major campaign contributors to --
MELBER: Donors, yes.
BUELL: -- the Bush administration. And I think it was understood, you know, we need to cut ourselves off from these people and let the law run its course. And it`s just, you know, we`re in a different world now. You know, I understand what Michael is saying about being surprised, but at a certain point, you know, it`s now August. We`ve been being surprised by things since, you know, January.
[22:15:08] The norms are out the window. I mean at some point we have to start to accept the fact that this is normal -- now the new normal for how the White House is going to behave. And I think that Mueller`s people and Mueller himself can be under no illusions. They are going to be absolutely savagely attack at every turn.
BUELL: In everything they do in this investigation.
MELBER: Right. And you`re saying --
BUELL: It`s going to be their professionalism --
BERMAN: Yes, you`re saying let`s not act so surprised every night.
MELBER: A kind of Maya Angelu test for the Trump era, if someone shows you who they are, believe them. And I understand her to have meant that negatively as in when someone is betraying you or unethical.
Walter Dellinger, final point, I think a lot of people at home may be wondering about when it comes to Flynn`s potential cooperation. And I`ll ask it as a hypothetical because we`re not presupposing anything about what Flynn will or won`t do. But if you have someone who`s already lawyered up as he has, has written a letter saying, I could cooperate, I`ve got a story to tell, his words, then what would happen if a deal was struck?
Because obviously the FBI can`t just jump him, right? You try to bring him to the grand jury or you try to cut a deal? How would it work?
DELLINGER: Well, you would make an agreement that he would perhaps plea to lesser crimes than they might ultimately charge in exchange for his cooperation in providing testimony against others, perhaps his superior. And I think then he could be -- you know, if there were crimes committed in relation to the campaign and the Russians, he could be a devastatingly important witness if that were the case.
MELBER: Fascinating. I want to thank Sam Buell for joining us. Mike and Walter, we are going to come back to you on another angle I want to ask you about.
But coming up next "Trump Under Siege," the chaos in the White House. General John Kelly, chief of staff, reportedly trying to rein in how information reaches the president. But how does he rein in how the president gets his own information and spreads it?
Plus, this is a very important story today. Attorney General Jeff Sessions threatening the free press at an official DOJ event saying it all comes back to the leaks. We have a special report on that and what it means next.
MELBER: One side Donald Trump seemed to realize he was under siege came an unusual staffing choice this week when he tapped a top aide, John Kelly, for his professional credentials rather than personal loyalty or of course nepotistic ties.
[22:20:14] Kelly`s first work day was this Monday, which became Anthony Scaramucci`s last work day, in this Trump edition of survivor. It was the rare time that a career public servant beat out even a slavish Trump loyalist.
Now Kelly is trying to change process and personnel, and in a key meeting when bickering Trump aides steered off course this week, he ordered the pair out of the room, according to "The New York Times," telling them to return when their differences were resolved. That was according to a person who spoke to the "Times" about the exchange.
Kelly also cuts off rambling advisers mid-sentence. He listens in on conversations between Cabinet secretaries and the president. He`s booted lingering staff members out of high-level meetings and ordered the doors of the Oval Office closed to discourage strays and has demanded that even Mr. Trump`s family, including daughter Ivanka Trump and son-in-law Jared Kushner, check with him if they want face-to-face time with the president.
And as the old saying goes, the proof is in the tweets. Trump`s 16 tweets today covered many topics other than his own grievances. He even touted those new job numbers and when he did bring up Hillary Clinton or Russia, it was usually through re-tweets.
Now that seeming digital restraint did not carry over into the rally last night. This was pitched as a celebration of a governor who was switching parties to back Trump, which is the kind of political grassroots story that people push out in both parties. But he couldn`t stick to the message, bringing it back to Russia.
(BEGIN VIDEO CLIP)
TRUMP: The Russia story is a total fabrication. It`s just an excuse for the greatest loss in the history of American politics. That`s all it is.
(END VIDEO CLIP)
MELBER: Joining us now is Tom Nichols, a foreign policy expert and professor at the U.S. Naval War College, as well as Jonathan Capehart, opinion writer for "The Washington Post," MSNBC contributor and the award for Friday night outfit, no surprise, goes to Jonathan Capehart.
Looking ready to dash out of the studio as soon as we`re done but we`re not done yet, Jonathan. .
My first question goes to Tom. It sounds like the kind of order most White Houses would have had to begin with. What do you make of the military component here?
TOM NICHOLS, PROFESSOR, U.S. NAVAL WAR COLLEGE: Well, as always, Ari, this is my own view and not the Navy`s. I think it makes sense. I mean, General Kelly is a well respected man and you`re right. Most White Houses would have had a little more order than this, but they do sometimes have trouble getting off the blocks.
I think one of the things that`s concerning is this seems to be the go-to answer in times of trouble, is to bring in senior military officers. And while all these are men of sterling character and credentials, it`s a disturbing trend because there are more people out there than just senior military officers and it creates a bad precedent in my view.
MELBER: Yes, and Jonathan, you know, sometimes the question is, are we all paying too much attention to the tweets? Which I think can be a fair question. But there`s a lot of reporting that suggests, particularly in the pre-Kelly era, if anything, some of the tweets needed more attention. And I do in more regularly and advance, I was sort of blown away by this Politico report, I`m sure you`ve seen, quote, "White House officials woke up to the tweet announcing the FBI pick. They hurriedly wrote a news release to correspondent to it. Much of the president`s inner circle knew little about Wray. Trump reportedly tired of the search, so he tweeted it out to get it going."
Jonathan, and that is, by the way, a 10-year position running all counter terror national security, drug enforcement, everything.
JONATHAN CAPEHART, OPINION WRITER, THE WASHINGTON POST: Right. That right there therein lies the challenge for chief of staff, former -- retired General Kelly, that you have a president of the United States who takes to twitter and just makes pronouncements that have wide-ranging, far-reaching impacts on the rest of the government. So the story that Politico has out there, the president got tired of the search for FBI director and just announced it.
Last week we were gob smacked by the tweets he sent out announcing that transgender service members were no longer welcome in the military. And so I think for General Kelly, it`s great that he`s bringing order and systems or, as they like to say in the building behind me, returning to regular order, that`s great. But if you don`t have the -- if the president is not going to abide by the rules, such as they are, then all of Kelly`s efforts will be for naught.
And also let`s not forget something else, Ari.
CAPEHART: Those tweets are considered official statements.
CAPEHART: So they`re not just willy-nilly, you know, missives, that he used to send out when he was private citizen Trump. Now that he is President Trump, they have the imprimatur and effect of being official White House policy.
[22:25:12] MELBER: Yes, and it really goes -- when we talk about the general reining him in, Tom, two things. I want to flag something about this whole adult issue and then read from your piece. Politico also noting that Trump has a proclivity for rattling aides with those unexpected tweets. So they say the generals with Tillerson as kind of a junior partner are nicknamed the "Axis of Adults" by a number of establishment Republicans.
I mean, it`s sort of like we`re back into one of those, you know, amusement rides, and you have to be this tall to ride, which means you either have to be an adult or a tall adolescent. I don`t know that that is the best standard for White House access and you dig into this here.
Yes, reading from your piece and tell us about, you write, "The U.S. has a civilian commander-in-chief to provide a civilian check on the powers of the military, not the other way around. To hope Kelly and McMaster and the White House and General James Mattis at the Pentagon will restrain the president`s erratic impulses is actually a terrible development in our history, not because these are not by men, you write, but because too much reliance on them corrodes a key principle of the American constitutional order. Explain.
NICHOLS: Right. The government is supposed to be run by civilians, and when the American public gets to the point where it says, well, we can tolerate a certain amount of dysfunction as long as there are enough generals around. That`s a very worrisome thing to say. That people will say, well, we understand there`s a lot of chaos and nobody is really in charge, so the answer to this is to make sure that there are always enough three and four-star generals, retired or active, watching over the president.
It`s supposed to be the other way around. We explicitly have a civilian commander-in-chief to watch over generals, not to have generals watch over the commander-in-chief. And I think the public is getting too used to this idea, as is Congress to be quite frank.
MELBER: Jon, you`re nodding yes.
CAPEHART: Yes. And that was actually my number one concern when it was announced that John Kelly was going to be the next chief of staff. While on the one hand I was, like, thrilled that there would be someone, an adult in the room who could maybe bring some order to the Oval Office, I was also very concerned for the very thing that Tom wrote about and talked about just now. Having a general who is keeping tabs and keeping watch and trying to rein in the president of the United States is super concerning, especially when you have a general at the Pentagon, a general who is also national security adviser.
And here`s the other thing, Ari, I wanted to mention before. But this is a perfect time to bring it up now. That maybe General Kelly will be successful in this job with the president because of the president`s sort of childlike fascination and admiration of men in uniform. And what we all have to hope is that those generals, those members of the military we are now dependent upon them to safeguard our democracy. This is sort of echoing what Tom just said, but think about that for a moment.
MELBER: Tom, briefly.
NICHOLS: Well, just like Jon, I was relieved that General Kelly was brought in. I was relieved when General Mattis was appointed, but in a way that`s the problem itself.
NICHOLS: Is that when someone says we`re going to appoint a lot of generals and everybody breathes a sigh of relief. It shouldn`t -- we shouldn`t have to get to that point where we`re turning to generals so that we can somehow feel better about everything. That`s what concerns me.
MELBER: Fascinating. Tom Nichols, thanks for that perspective from the War College there. Jon, I`ll see you soon.
Coming up, I want to discuss the lengths Attorney General Jeff Sessions is now threatening to go to find whoever in Trump`s own administration may be leaking. We have a breakdown for you.
And later, Donald Trump clearly isn`t over that big string of losing health care votes. What he said about the congressional Republicans coming up.
(BEGIN VIDEO CLIP)
[22:32:33] SESSIONS: I have this message for our friends in the intelligence community. The Department of Justice is open for business, and I have this warning for would-be leakers. Don`t do it.
This nation must end this culture of leaks. We will investigate and seek to bring criminals to justice. We will not allow rogue anonymous sources with security clearances to sell out our country.
(END VIDEO CLIP)
MELBER: Jeff Sessions today basically telling bureaucrats just say no to leaks, and he rolled out a new crackdown on leaks. This is right after the president`s transcripts of calls with foreign leaders were published in "The Washington Post."
Sessions also said the DOJ may threaten more reporters with jail time if they don`t give up sources.
Here he is discussing a revamp on that of media subpoenas.
(BEGIN VIDEO CLIP)
SESSIONS: One of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect. But it is not unlimited. They cannot place lives at risk with impunity. We must balance the press` role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces, and all law-abiding Americans.
(END VIDEO CLIP)
MELBER: Sessions also announced the Trump DOJ leading more than three times as many leak investigations as that were open at the end of the Obama administration.
And take a look at this. There have been as many criminal leak referrals in the first six months of the Trump administration as there were over the past three years combined. And in response to the increased number of investigations, the FBI has been working to expand a counterintelligence unit for the cases.
Four people have also been charged with unlawfully disclosing classified material that we did know about. This is a plan to do more.
Walter Dillinger and Michael Isikoff back with us.
Walter, nothing new about attention between an administration in the press over these issues, but the balance, as you know, has been struck. The balance currently under the rules is that you have to have national security or imminent injury or death to issue a media subpoena, which ultimately is the road to jailing reporters.
Do you buy Jeff Sessions` argument that that`s not good enough or needs to be reset that balance?
[22:35:03] DELLINGER: No. I`ve seen no indication that if anything the Obama rules may have been too permissive. But the previous Justice Department said there are clear standards that must be met before you subpoena a reporter or his or her notes or her sources, and that`s critical to allow the free flow of information.
I think it was an attempt at intimidation because he spoke so broadly. Some leaks are criminal, and some are harmful to the national security.
MELBER: What do you mean, sir, by -- what do you mean, sir, by intimidation? You think absent actual fact-driven inquiry, the attorney general is trying to scare reporters out of doing their job?
DELLINGER: I think more trying to scare officials in the government as well as reporters out of releasing information that ought to be disclosed. When the attorney general says that it`s a message to would-be leakers, don`t do it, that`s way too broad because many unauthorized disclosures are not by any means criminal. Many may be embarrassing, but they don`t adversely affect the national security.
And, Ari and Mike, think about the number one leak that the president`s talked about. That`s Jim Comey`s disclosure of his notes, which was both perfectly legal and perfectly appropriate.
MELBER: Sure. Well, you have Mike Isikoff here.
Michael, for viewers who remember your tenure, the number of epithets that have been hurled at you by government officials on stories you have broken originally and exclusively based on what I assume are your sources -- I know you`re not going to discuss them. But the Lewinsky dress, the drone targeting strikes. You have a long list of those reports.
Walk us through what you think of this and whether you think it could chill, as a general matter, government sources.
ISIKOFF: Well, first of all, you know, it`s useful to remember that this is not the first attorney general to vow to crack down on leaks. And, you know, as you well know, Ari, under the previous administration and under Eric Holder during his first years as attorney general, there were more leak prosecutions under the Espionage Act brought by the Justice Department than in all previous administrations in history.
It was only when there was public attention on this and exposure about just how far the Justice Department, under Eric Holder, had gone, subpoenaing the phone records of the A.P., labeling a journalist as a potential co- conspirator in violation of the Espionage Act, that Obama administration officials got embarrassed and decided to impose these media guidelines that were designed --
ISIKOFF: That were designed to have greater scrutiny of media subpoenas. Now, you know, I do think Sessions is sending a message here, but just on its face, the review of the media guidelines is probably not as significant as it sounds because the essence of the media guidelines was to require a higher level of review --
MELBER: No, a higher level --
ISIKOFF: -- for subpoenas of journalists.
MELBER: Right. I think -- I think that`s fair, Michael. A couple of points.
ISIKOFF: And --
MELBER: I mean, that higher level of review was put in as a safeguard. The tenor of today`s talk didn`t make you feel that it was going to be more safe, but rather more aggressive.
ISIKOFF: Right. No. Exactly.
MELBER: A couple of points, because I want to play something on the points you raise.
MELBER: And look, I used to practice First Amendment law, so I definitely share the concern about the Obama Justice Department. They were highly aggressive on this. In addition, the other context, of course, is the Internet, and it became drastically easier with groups like WikiLeaks to put out more voluminous material without the gatekeeper function of the press. I think that was the other macro factor driving more of those prosecutions, although they concern us all.
Walter, take a listen to Floyd Abrams who won the Pentagon papers case, who, full disclosure, happens to be my old boss. I had him on a show earlier today on MSNBC about the transcripts of these presidential foreign dignitary calls which a lot of people have said are over the line.
The president has got to have an ability to do private diplomacy. Mr. Abrams takes a different view, that they expose really problematic activities and statements by Donald Trump.
(BEGIN VIDEO CLIP)
FLOYD ABRAMS, CONSTITUTIONAL LAWYER: The public was informed yesterday about really important stuff. I mean, here`s the president talking to the president of Mexico, the prime minister of Australia, and saying things which are against his interest but are very important. That sort of thing is highly newsworthy, serves a genuine First Amendment purpose and the public would know less.
(END VIDEO CLIP)
MELBER: Walter, were those leaks over the line?
DELLINGER: You know, I think they were. I do in this instance. I think they were over the line because, you know, what they showed was that the president sounds foolish in talking to foreign leaders.
[22:40:06] But that`s really very sensitive material, transcripts of presidential conversations. Not as sensitive as something that would reveal sources and methods, that would reveal the fact that we have, you know, a way of surveilling the Russians that wasn`t previously disclosed. That`s the most serious.
And I will say in Floyd`s behalf, of course, the president, when he`s speaking to a foreign leader, has no idea who all is on the other line, whether it`s being recorded. It`s not exactly a private conversation. So there is that to be said. But I do think presidential transcripts, it makes me nervous, and not the kind of information like the critical information we got that General Flynn, the National Security adviser, was having backchannel substantive discussions with the Russians and lying about it to the vice president.
Had it not been for that leak, Michael Flynn would still be the National Security adviser, and that would be the threat to national security.
MELBER: Well, it`s such a great point. And you sort of brought us full circle to the top story tonight which we opened with "The New York Times" reporting Mueller getting a hold of more information on Flynn for that very reason. So yes, leaks do move in many directions.
Walter Dellinger, Michael Isikoff, thank you so much.
MELBER: Coming up, Donald Trump versus his own party. That`s next.
(BEGIN VIDEO CLIP)
TRUMP: I`m going to fight for every American in every last part of this nation.
[22:45:02] We have -- we have a president who doesn`t fight. He goes out and plays golf all the time. I love working. I`m not a vacation guy, right? Like Obama. He plays golf in Hawaii, flies on a 747.
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MELBER: Tonight Donald Trump is on day one of a 17-day working vacation. This is according to his aides, relaxing at his golf resort in Bedminster, New Jersey.
His job approval, while we`re talking about work, is down at 33 percent in a Quinnipiac poll, 61 percent disapprove. That`s a new high.
And "Newsweek`s" new issue dubs him "Lazy Boy." Knowing Trump has spent over 40 days at his golf clubs, with some asking if he really wanted this job. Meanwhile at that West Virginia rally, he once again blamed Congress for work.
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TRUMP: Congress must do its job, keep its promise, live up to its word, and repeal and replace Obamacare. You have to do it.
Congress must get to work and deliver Americans the great health care that they deserve, the great repeal and replace that they`ve been talking about for seven years. Incredible. One vote. Incredible. But we`ll get it. We`ll get it, folks.
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MELBER: There actually is something incredible if you think about it, and here it`s Friday night. We can breathe for a minute. Consider that it`s six months into this Congress, which means the first session is half over and it`s a Republican Congress. And the only major things it`s done are pass bipartisan sanctions on Russia to defy Donald Trump and his policy and to go into, yesterday, a pro forma Senate session to defy Donald Trump from even thinking about trying to ram through a new attorney general since he`s so openly mused about it.
Where Congress is acting, it is acting to defy Trump.
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SEN. JOHN MCCAIN (R), ARIZONA: Whether or not we are of the same party, we are not the president`s subordinates. We are his equal.
SEN. THOM TILLIS (R), NORTH CAROLINA: There`s any number of things that we`ll work on to try and wrestle back power and assert congressional authority over things we should have never allowed to go downstream.
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MELBER: So with the midterms just around the corner, what will be the state of the Republican Party when they get back from this recess? That is up next.
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UNIDENTIFIED REPORTER: What has Trump learned about Congress in seven months?
SEN. JEFF FLAKE (R) ARIZONA: I hope that we`re a co-equal branch of government.
FLAKE: And so we will stand up for our prerogatives. No president should expect any senator or a member of the House to be a rubber stamp.
UNIDENTIFIED REPORTER: Thank you, Senator.
FLAKE: We have our own franchise.
(END VIDEO CLIP)
MELBER: Senator Flake there talking about the president might have learned.
I`m joined by Adam Siegfried, Republican strategist and author of "GOP GPS: How to Find Millennials and Urban Voters the Republican Party Needs to Survive." And back with us Jonathan Capehart.
You know, that was radio audio, Jonathan. The key part there, though, is when basically Flake says look, we`re a coequal branch of government, we`ll stand up for our prerogatives. I think you can shorten that to its Congress`s prerogative they`ll do what they want to do. And lately that`s been defying Trump when they do anything.
CAPEHART: Right. I mean, he is reflecting what Senator McCain said in a clip you showed earlier during the health care debate that you know they`re reasserting their power. They are reasserting their standing as a coequal branch of government, which, you know, from the last eight years and then the eight years before that Congress simply in a lot of cases rolled over and did whatever the -- whatever the executive or took orders from the executive. And either voted up or voted down what they wanted to do.
But what we`re seeing out of this White House and the way President Trump is running his administration Congress has found -- found its back bone and has relearned the lesson that they don`t have to take all of this lying down. And that they are part of the solution to keeping the enterprise that is the United States running as reasonably well as it can be run with a chief executive who is literally all over the place.
MELBER: Yes. And the flipside of it is that Republicans got united government and they`re acting like it`s divided government. And here is Mike Lee, who has, you know, pretty strong libertarian grassroots support, Tea Party support, saying, hey, Trump`s taking these cheap shots at Congress like night and it`s easy.
Mike Lee, do we have that sound?
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UNIDENTIFIED REPORTER: If the Senate passes a bipartisan health care bill, are you going to vote?
REP. PAUL RYAN (R), HOUSE SPEAKER: I want to see what it is my but my answer would be yes. Get a bill passed whatever they think the answer is pass it. And then let`s negotiate the best possible answer out of that. And that`s the system. That is how bills become a law. And we want to see the Senate get something done so that we can move forward on this issue.
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MELBER: That`s Paul Ryan on health care but as we say in the news business my bad. What I was thinking of was Mike Lee. I`ll just read it to you. He says -- asked if Trump is putting the blame in the right place. He says look, we`re an easy target. No doubt about that. Institution has an approval rating around 11 percent. OK. Then he says we`re only slightly more popular than influenza.
So he`s having some fun but he`s also basically saying to Donald Trump this is the best you can do, you`re in the beginning of your presidency and you want to attack Republicans?
EVAN SIEGFRIED, REPUBLICAN STRATEGIST: Well, Donald Trump has never taken responsibility for anything that has happened in his administration. It`s always somebody else`s fault. So the failure to pass the repeal and replacement of Obamacare, it`s those Republicans in Congress`s fault. And he is always whining about something and it`s never been his responsibility.
We would actually be better as a caucus because what you -- the clip you played of Paul Ryan shows how divided Republicans are. Look at the health care debate, how we have different factions talking about different things. And when you have such a division you need strong leadership coming from the White House to cobble it all together and the president hasn`t done that.
He views being president as being a CEO and Congress as middle managers and lower level VP`s who do all the grunt work. And then he comes in for the PR and the photo-op.
[22:55:06] MELBER: So what does that make Jared?
SIEGFRIED: What does it make Jared? One very lucky intern.
CAPEHART: No, I mean, that`s actually an excellent description. Look, President Trump, as Evan said, takes responsibility for nothing. And let`s just take the health care situation for example. The House passes a -- passes a bill. It`s step one. And in, say, 20 steps to make it become law.
What does President Trump do? Tells them to -- oh come to the Rose Garden, have like a victory rally for this one step and say we`re going to get this done. And then what does he do? Weeks -- a few weeks later he says well that House bill was really mean.
So you have -- you have a president who basically just wants victories. He just wants wins. As Evan said, he just wants to be there for the photo-op. He couldn`t care less what the photo-op is about.
MELBER: Right. He wants to win but he is not in a place yet where he can say all I do is win because I don`t think they`ve put a single legislative win on the board.
Evan Siegfried and Jonathan Capehart, appreciate both of your time.
And Jonathan, I hope we can catch you outside looking good with the Friday night outfit as advertise.
CAPEHART: Thanks, Ari.
MELBER: Absolutely. Appreciate it, you guys.
I think we`re going to fit in a break and we`ll be right back.
MELBER: Thanks for watching the LAST WORD tonight. You can always e-mail me at ari@MSNBC.com and I hope you`ll consider watching my brand new MSNBC show, "THE BEAT WITH ARI MELBER," it airs weeknights at 6:00 p.m. Eastern, 3:00 p.m. Pacific. And now it`s the "11TH HOUR WITH BRIAN WILLIAMS."