Clovis withdraws after Mueller revelations Transcript 11/2/17 The Last Word with Lawrence O'Donnell

Guests: Josh Barro, David Cay Johnston, Harry Litman, Ron Klain, Chris Matthews

Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: November 2, 2017 Guest: Josh Barro, David Cay Johnston, Harry Litman, Ron Klain, Chris Matthews

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.

So, I rearranged my schedule to make sure I could be here tomorrow night live to host the show because --

RACHEL MADDOW, MSNBC HOST, TRMS: Great.

O`DONNELL: Because, of course, tomorrow night was going to be when the White House revealed the Clovis nomination was withdrawn.

MADDOW: Yes --

O`DONNELL: I`m still going to be here tomorrow night.

MADDOW: Good.

O`DONNELL: I will definitely be here tomorrow night. So viewers of the hour of television of course knew this on Tuesday. America found out today that, of course, Sam Clovis will not be having a confirmation hearing where he answers questions about his dealings with the special prosecutor.

MADDOW: You know, and the Sam Clovis story, I feel like there`s something about the fact he is a talk radio show host from Iowa who has been associated with every campaign you`ve ever heard of in Iowa, that makes you think that like maybe this is kind of low level story. I mean, he`s still a current administration official. He spoke to the grand jury without notifying the White House. He started to speak with Mueller`s investigators without notifying the White House. We have no idea he organized any sort of immunity agreement in conjunction with those discussions. We know that he is the guy who brought Carter Page and George Papadopoulos onto the Trump campaign and he`s the guy who oversaw this national security group that involved them that`s now posing such difficulty for the attorney general.

I mean, Sam Clovis is also listed in the "Wall Street Journal" reporting about Peter Smith contacting Russian government hackers to try to get Hillary Clinton`s e-mails. I mean, he turns up again and again and again with all these Russia related stories. I think his confirmation hearing next week could have been the most illuminating Russia discussion we have had under oath since the beginning of this administration. But now, now that won`t happen.

O`DONNELL: And it was a hearing that was supposed to be about the science of agriculture.

MADDOW: Yes.

O`DONNELL: But it was -- the hearing that will never be.

MADDOW: That`s right.

O`DONNELL: Too bad. Thanks, Rachel.

MADDOW: Thanks, Lawrence. Appreciate it, man.

O`DONNELL: Thank you.

In March, Senator Al Franken on this program said that he then believed that Jeff Sessions under oath, answered about Trump campaign contacts and Jeff Sessions` contacts with Russians during his confirmation hearing was perjury. Perjury.

Today, thanks to revelations by the special prosecutor, Senator Franken says Jeff Sessions now has even more problems.

(BEGIN VIDEOTAPE)

SEN. AL FRANKEN (D), MINNESOTA: I have a lot of questions for the attorney general.

JEFF SESSIONS, ATTORNEY GENERAL: I have not seen anything that would indicate a collusion with Russians.

UNIDENTIFIED MALE: Now it turns out that he was in meeting with a lower level Trump campaign aide said, yes, I`d like to arrange a meeting with Vladimir Putin and Donald Trump.

UNIDENTIFIED MALE: Sessions spoke vehemently against the idea asking others not to discuss it again.

SESSIONS: The suggestion that I was aware of any collusion with the Russian government is an appalling and detestable lie.

CHRIS MATTHEWS, MSNBC HOST: If she did say shut it down, kid, then he remembered there were contacts with Russians.

FRANKEN: Exactly.

SESSIONS: Senator Franken, I`m not aware of any of those activities.

FRANKEN: He has contradicted himself so many times.

UNIDENTIFIED MALE: Every single person around this administration when asked a direct question about contacts with Russians on this issue has lied about it and the lies unraveled.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: And that`s why we`re working to give the American people a giant tax cut for Christmas.

REP. NANCY PELOSI (D-CA), HOUSE MINORITY LEADER: This is a shell game. A Ponzi scheme.

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: The $2 trillion giveaway to giant corporations.

TRUMP: All right. Don`t, don`t.

UNIDENTIFIED MALE: It is yours. It is yours.

(END VIDEOTAPE)

O`DONNELL: We are now at the stage of the Russia investigation story when the leaks of weeks ago are the proven facts of today. Paul Manafort made his second appearance in federal court today, probably the second of many appearances in federal court. He was there to request a loosening of the conditions of the bail which the judge refused to do. In making the case about why Paul Manafort can be trusted not flee the country, Manafort`s lawyer told the judge that Paul Manafort was warned by the special prosecutor in August to expect to be indicted.

Now, remember when that was a leak? And unsourced leak that could easily have come from the federal investigators or even more likely, the defense lawyers representing Manafort or others in this case? It was just a leak. That Manafort was told he was going to be indicted, proven a fact today.

Today, that leak of three months ago is a fact, a fact presented in open court. We have another new and important fact today and many more will surely follow. Jeff Sessions was not telling the truth, the whole truth and nothing but the truth, when he testified under oath to the Senate Judiciary Committee about the Trump campaign`s contacts with Russians and Jeff Sessions` contacts with Russians.

When you`re testifying under oath, the trip wires are everywhere, perjury trip wires. And the only real way to be absolutely certain that you will not trip into perjury is to tell the truth, the whole truth and absolutely nothing but the truth. And you can say things under oath that turn out not to be accurate. And are also not perjury because it`s not testimony about an important fact or a material fact or it`s a minor error or maybe it was your best memory at the time and now turned out not to be true, an understandable mistake, if not a completely honest mistake. Understandable mistake, that stuff`s not perjury.

Senator Al Franken put the first trip wire in front of Jeff Sessions during his confirmation hearing in January when he asked him about contacts with Russians and Jeff Sessions said this.

(BEGIN VIDEO CLIP)

FRANKEN: If there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?

SESSIONS: Senator Franken, I`m not aware of any of those activities.

(END VIDEO CLIP)

O`DONNELL: I`m not aware of any of those activities, anyone communicating with the Russian government.

Two months after that answer, Jeff Sessions wrote a letter to the Judiciary Committee changing his answer to include meetings that he himself had with the Russian ambassador who is, of course, the Russian government. And reaction to that, in March, Senator Al Franken on this program said that it appeared that Jeff Sessions committed perjury and the special prosecutor`s court filings accompanying the revelation of the guilty plea in George Papadopoulos case, on Monday, the special prosecutor specifies that Papadopoulos who was a foreign policy advisor to the Trump campaign discussed making contacts with Russians in a meeting where Jeff Sessions reportedly discussed that idea and objected to that idea strenuously.

Here`s a picture of that meeting that included Jeff Sessions, George Papadopoulos and candidate Trump, who would have heard what George Papadopoulos had to say. Then, Senator Jeff Sessions and then candidate Donald Trump participated in a discussion in that photograph, they were participating in a discussion about contacts with Russians involving the campaign.

And Jeff Sessions when asked about that has never admitted that in his Senate testimony.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Did you ever overhear a conversation between you and anybody on the campaign who talked about meeting with the Russians?

SESSIONS: I have not seen anything that would indicate a collusion with Russians to impact the campaign.

(END VIDEO CLIP)

O`DONNELL: Notice he did not answer the question that he was asked. He was not asked if he saw collusion with Russians during the campaign. He was simply asked, did you hear, overhear any, any conversation about meeting with Russians during the campaign? As simple as that.

Hear what Senator Franken had to say about the latest revelations about the Jeff Sessions story today.

(BEGIN VIDEO CLIP)

FRANKEN: He has contradicted himself so many times in the last -- since January that it really is hard to believe that he`s been telling the truth at any one -- at any one point.

(END VIDEO CLIP)

O`DONNELL: Now, let`s consider what President Trump said about his campaign`s contacts with Russians in February of this year.

(BEGIN VIDEO CLIP)

REPORTER: Can you say whether you are aware that anyone who advised your campaign had contacts with Russia during the course of the election?

TRUMP: Well, I told you General Flynn obviously was dealing, so that`s one person but he was dealing as he should have been.

REPORTER: During the election?

TRUMP: No, no. Nobody that I know of.

(END VIDEO CLIP)

O`DONNELL: And so, George Papadopoulos appears to be on a collision course with the president of what the president heard him say and heard his campaign therefore discuss in that room in that photograph that we just saw about contacts with Russians, on March 31st, 2016.

J.D. Gordon, a campaign adviser who attended that meeting, told "The New York Times", Papadopoulos went right into the pitch right away. He said he had a friend in London, the Russian ambassador, who could help set up a meeting with Putin.

President Trump listened with interest. Mr. Sessions vehemently opposed the idea, Mr. Gordon recalled. And he said that no one should talk about it because it might leak.

Tonight, NBC News has confirmed that former Trump campaign adviser Carter Page testified to the House intelligence committee today that in June 2016, Page informed Jeff Sessions that he was taking a trip to Russia. And that trip was reportedly unrelated to the campaign.

Joining us now, Ron Klain, former chief of staff to Vice Presidents Joe Biden and Al Gore, and a former senior aide to President Obama. He`s also former chief counsel to the Senate Judiciary Committee. Also with us, Max Boots, senior fellow at the Council on Foreign Relations and a former foreign policy adviser for McCain, Romney and Rubio. And Matt Miller, former spokesman for Attorney General Holder and MSNBC contributor.

And, Max, first to you. You have been a foreign policy adviser on Republican presidential campaigns. What`s your reaction to the description we now have of the discussion going on in that meeting in 2016 that we have just looked at the photograph of?

MAX BOOT, FORMER MCCAIN 2008 FOREIGN POLICY ADVISOR: I mean, I have never heard of anything like that. I mean, If you look at the volume of Trump contacts, with the hostile foreign power like Russia, I`m not aware of anything like that that`s occurred on any campaign I worked on. I mean, there was certainly nobody who was doing outreach to Putin on the Romney campaign or the McCain campaign.

I mean, this would have been unthinkable. I mean, this is so far beyond the boundary of when`s acceptable in American politics and Trump has crossed that boundary. He just erased it time and again.

O`DONNELL: Ron, you used to be counsel to the Senate Judiciary Committee and now under oath testimony involving the attorney general --

RON KLAIN, FORMER CHIEF COUNSEL, SENATE JUDICIARY COMMITTEE: Yes.

O`DONNELL: -- is now being questioned as to whether perjury is involved.

KLAIN: Yes. That`s right. And Senator Pat Leahy, the longest serving member of that committee, said tonight that Jeff Sessions should come back and testify under oath.

It would be his fourth try to get a story straight. You almost think that his slogan must be if at first you don`t deceive, lie, lie again, because he`s changed his story three times, twice under oath, confirmation hearing. When he then changed his story, had to recuse himself. And then again in the summer when he testified.

And so, there`s never been anything like this before of an attorney general coming before the Judiciary Committee and just lying and lying and lying.

O`DONNELL: And, Matt Miller, in your experience working with the attorney general in the Justice Department, it would seem to be, especially under oath testimony that who in the administration would take under oath testimony more seriously than the attorney general? And when treading in an area where you`re asked, have you had contacts with the Russian government, and you don`t remember or don`t report that you had contact with the ambassador, it -- I find that as stunning as Senator Franken did the first time around.

MATT MILLER, MSNBC CONTRIBUTOR: It`s impossible to believe. Look, you`re right. He is the nation`s chief law enforcement officer. He leads the department that prosecutes people every week for failing to tell the truth in court, failing to tell the truth to FBI agents.

It matters that he is honest, especially when he`s under oath. And, look, the problem here is it`s not just that he came up as Ron said and lied the first time. I think some people who are willing to give him the benefit of the doubt that maybe the first time he went up, he didn`t remember correctly, he was confused by the question.

But there can be no doubt anymore he is intentionally misleading this committee. When you come up two weeks ago with the questions swirling about Russia and the fact he`s under attack for not telling the truth and you mislead the committee again about something that you -- it doesn`t pass the smell test that he doesn`t remember when it came up in a meeting and he said to the people in the room, no one talk about this anymore. I`m afraid it`s going to leak.

That is a kind of thing you`re going to remember. And that he had to have remembered it coming up to Congress and didn`t tell the truth.

O`DONNELL: Let`s all keep Matt`s description of that in mind as we listen to what Jeff Sessions says next. This is from June.

This is a sitting attorney general. This is not someone trying to get through a confirmation hearing. He is the attorney general of the United States. It is June.

He`s being asked about any Trump campaign contacts of any kind with Russians and this is an extraordinary answer given the information we have today. Let`s listen to this.

(BEGIN VIDEO CLIP)

SESSIONS: I have never met with or had any conversation with any Russians or any foreign officials concerning any type of interference with any campaign or election in the United States. Further, I have no knowledge of any such conversations by anyone connected to the Trump campaign.

(END VIDEO CLIP)

O`DONNELL: Now, Max, he did have knowledge of conversations of Papadopoulos connected to the Trump campaign. What he will rely on in there in terms of denying that this is perjury is to say the part of his sentence before that where he says any contact concerning any type of interference with any campaign or election in the United States. He`s leaning on that to say, I was only talking about interference. I wasn`t talking about any -- all forms of contact.

BOOT: Well, he is welcome to try the word games with special counsel Mueller and see what it gets him but, you know, what`s striking to me, Lawrence, is that we`re seeing evidence that on its face seems to suggest that the attorney general of the United States has perjured himself before Congress. But the amazing thing here is that Jeff Sessions is actually more ethical than Donald Trump, because at least Jeff Sessions recused himself from overseeing this probe.

And, of course, as we know, Trump hit the roof when he saw that his attorney had taken himself out of the line of authority, thus allowing the special counsel to be appointed because Trump thinks that`s a crazy, unwarranted action. I mea, that tells you where Trump`s head is. I mean, at least Jeff Sessions may recognize that he`s crossing the lines. Donald Trump doesn`t admit that any lines exist.

O`DONNELL: Ron Klain, is the special prosecutor going to have to put Jeff Sessions under oath?

KLAIN: A hundred percent. I mean, both for this and, of course, for his role in the firing of Jim Comey, and the possible obstruction of justice that represents. The fake story that he played a part in concocting to explain Comey`s firing. But also, you know, because of this repeated change of stories about the Russian matter itself, we still also don`t know what he knew about Donald Trump Jr.`s and Jared Kushner`s and Paul Manafort`s meeting at Trump Tower with Russians who came to talk about interfering in the campaign.

So, what we know already is highly troubling and there`s still a lot we don`t know and Bob Mueller is going to have to have get to the bottom of that.

O`DONNELL: I want to look at new "The Washington Post"/ABC News poll on the special investigator`s investigation. And let`s remember that this is a poll taken in a country where government, just government itself and government servants are not popular but here we see Robert Mueller has a 58 percent approval rating for his handling of the Russia probe, 58 percent. There is no one in government now with an approval rating of that size, disapproval of only 28 percent, which means that not even all Trump voters disapprove of the way he is handling this investigation.

And, Matt Miller, what does a poll like that -- what affect would that have on the terrain of this investigation and any contemplation by the president of possibly getting rid of Robert Mueller?

MILLER: Well, you would hope it would give him pause. I think that poll is a heartening piece of information we have recently seen because Bob Mueller has really been under sustained attack from the president, from the president`s allies on Fox News and other conservative media for months now. And they have -- it is clear what they`re trying to do. They`re trying to undermine his investigation. So people don`t believe it when he brings charges.

And so, if at the end of this, he finds any criminality by the president himself, that there`s a certain part of the population that is unwilling to accept those charges. And it seems so far at least with most of the population that campaign is not working. It is crucially important to the rule of law in this country that he`d be allowed to continue that investigation and that these attacks on him ultimately fail.

O`DONNELL: The Fox News campaign against Robert Mueller is not a success when you look at the poll numbers.

Max Boot, Matt Miller, thank you both very much for joining us tonight. I really appreciate it.

BOOT: Thank you.

O`DONNELL: Coming up, Donald Trump calls his tax cut bill a big, beautiful Christmas present for his family. Well, no. He didn`t specifically mention it`s for his family.

And later, why President Trump`s tweets about the suspect in the terrorism case here in New York where eight people were killed are a very, very bad legal idea. Why presidents never, ever, ever comment on pending criminal cases unless the president is Donald Trump.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: Most Americans would be able to file taxes on a single sheet of paper. What do you think about that, Kevin? You still there? Is it going to be a paper and a half?

REP. KEVIN BRADY (R), TEXAS: This card?

TRUMP: Oh wow. Thank you. Postcards.

Great job. Thank you very much. I didn`t know I was going to be given a prompt.

REP. PAUL RYAN (R-WI), SPEAKER OF THE HOUSE: That is my only copy.

TRUMP: Don`t lose it.

BRADY: It`s yours. It`s yours.

(END VIDEO CLIP)

O`DONNELL: No, no one`s going to file their tax return on those postcards. They won`t be making more of those at the IRS.

Today, the Trump Republican tax cut bill was released to the public and it is already in some trouble in the House and the Senate among Republicans. Five House Republicans immediately opposed the bill today. Senator Bob Corker issued a statement indicating he is not ready to support the bill as written and hopes the Senate rewrites.

And Senator Jeff Flake said this.

(BEGIN VIDEO CLIP)

SEN. JEFF FLAKE (R), ARIZONA: If we`re going to do cuts, cuts, cuts, we have got to do wholesale reform. We cannot simply rely on rosy economic assumptions. Rosy growth rates to fill in the gap.

(END VIDEO CLIP)

O`DONNELL: The bill reduces the number of tax brackets from seven to four. It doubles the standard deduction but as expected it has the most benefits for corporations and the wealthy. It permanently cuts the corporate tax rate to 20 percent. It repeals the alternative minimum tax and ends the estate tax after six years.

Donald Trump described the plan as a Christmas present.

(BEGIN VIDEO CLIP)

TRUMP: We`re working to give the American people a giant tax cut for Christmas. We are giving them a big, beautiful Christmas present in the form of a tremendous tax cut.

(END VIDEO CLIP)

O`DONNELL: Joining us now, David Cay Johnston, Pulitzer Prize-winning journalist who founded DCreport.org. Also with us, Josh Barro, senior editor for "Business Insider" and an MSNBC contributor.

And, David, joining us from Australia. I want to go to you first. There might be little delay in the communication here.

But -- so the president describes this as a Christmas present. What is Ivanka going to find opening the Christmas present? And what kind of Christmas present has the president given himself?

DAVID CAY JOHNSTON, PULITZER PRIZE-WINNING JOURNALIST: Well, Ivanka`s going to get a big, nice package from Tiffany`s, so big she may have to get a truck to haul it. Whereas her maid is going to get a little Cracker Jack ring.

And Donald is going to do very well without the estate tax, even though he`s now admitted in a signed statement he is not worth anywhere near $10 billion. More like $1.4 billion and that may well be exaggerated. With no estate tax, he would save 40 percent of that much money when he runs out of time.

This is an astonishing bill, Lawrence, that the Republicans in secret, no Democrats, no public, no hearings, have come up with and it is a Christmas present not just to Donald but to people, places like General Electric and other big profitable corporations which will be paying a lower tax rate than entrepreneurs. This is the Republicans turning away from and even going to war on small business owners like me and lining up with Wall Street and the predators who are supposed to have been drained from the swamp.

O`DONNELL: Josh Barro, what is in this bill that fits the expectation or what we imagine the expectation to be of the average Trump voter who`s not a rich person?

JOSH BARRO, MSNBC CONTRIBUTOR: Not very much, I think. So, the bill, it would cut taxes about $1.5 trillion. A trillion for that businesses, $200 billion of is the estate tax repeal. Only $300 billion of it is individual tax cuts. So, that`s about $100 a person a year over 10 years, which is not just --

O`DONNELL: Just go over one more time, that $300 billion of this is personal taxation.

BARRO: Right.

O`DONNELL: All the rest of it on the business side.

BARRO: Business or estate tax. And the thing is, you know, there are those rate cuts they show there, but also, they get rid of deductions, including the personal exemption which people don`t think about. But that`s $4,000 to take off your tax bill income every year for yourself, $4,000 for your spouse, $4,000 for every dependent. You lose all of that. So, some families would actually see --

O`DONNELL: And exemption is better than a deduction.

BARRO: Right, yes.

O`DONNELL: Because they`re leaving you another kind of deduction.

BARRO: Exactly. And so, the average family would see a tax cut, probably some families see an increase. Not that big of a tax change on average for sort of middle income people. The tax changes for corporations and for wealthy people with interest in businesses or the corporate tax cut or there`s a provision that they`re calling a small business tax cut but really it`s for any kind of non-corporate business including the Trump businesses, most of which are --

(CROSSTALK)

BARRO: Non-corporate forms.

And interestingly, the National Federation of Independent Business which represents small businesses, very conservative-aligned group. They really want tax reform --

O`DONNELL: They always love tax cuts.

BARRO: Right. They came out today and they said they cannot support the bill in the current form because most small businesses won`t benefit at all. Either their incomes are too low, so the fact that it caps at 25 percent, a lot -- most owners are taxed less than 25 percent so they don`t save anything, or if you`re in a professional service business, if you`re an accountant, you`ll be excluded from this. So, they`re saying this is reserved for people like the Trumps. It doesn`t get at the large swath of small business owners in the U.S.

So, they like the bill as it`s written because it`s aimed so much at the top.

O`DONNELL: Yes. And, David, as you know, having covered tax legislation in the past and the big crusades on it, the NFIB, that small business group, the people most responsive to them in terms of lobbying response are Republican members of the House of Representatives. They feel very closely connected to those people. And so, when we see already some resistance to this, especially possibly more resistance coming from California, New Jersey, states like New York, from Republican members of the House because this limits severely the deductibility of state and local taxes, is it possible, is it possible that this might not pass?

JOHNSTON: It`s possible. And it`s also possible that we might see the Republicans decide to do something that would be risky but that`s no pass parts of this, particularly the corporation side of it. What are known as C-Corps and not so much the side involved with individuals. The individuals as Josh pointed out get crumbs.

Small -- but the notion that small business owners, the kind of people the NFIB can muscle up and get to call their congressmen in the large numbers would be paying a 25 percent rate while the 3,000 companies that own most of the business assets in America would pay a 20 percent rate --

O`DONNELL: Yes.

JOHNSTON: -- is just -- I`m sorry. This is the Republicans have turned against Main Street and decided to make their bed with Wall Street.

O`DONNELL: And let`s be very clear, Josh. Even though the corporate rate, the rate is 35, there`s no corporation that pays it. The deductibility patterns always reduce their effective tax below that, and with a corporate rate of 20, they won`t pay that either. They`re going to be paying something dramatically less than what we call the nominal rate. Their deduction packages will pull that down.

BARRO: Yes, that`s true. Interesting aspect is that there are eliminations of corporate tax breaks in here. There`s a tax break for basically domestic manufacturing. That goes away. There`s a limitation on how much interest businesses can deduct. So, I think you`re going to see an interesting thing here because some --

O`DONNELL: Notice that real estate businesses were allowed to maintain --

BARRO: Yes.

O`DONNELL: -- that deduction for interest.

BARRO: Right. And so, I think, you know, a lot of the way I think it`s landing in the corporate sector is some industries do well with this, others lose a lot and say, hey, taking the rate down 15 points, we`re going to come out ahead.

The problem is you have all these other people complaining about aspects of the bill like the NFIB complaint about how it treats small businesses. They`re already at the cap of how much they can cut taxes under the budget rules.

So if they start having to give giveaways different groups they`re going to start having to push those rates up. And so if they can`t do a corporate tax cut to 20. If they gave to go to 25 or 28 or whatever then some companies are going to start looking at this and saying, hey, I`ve actually to come out behind because you`re getting rid of this tax break I care about. You`re getting rid of the R&D that support orphan drugs, all these things. Some ministers will say hey it`s not worth it and something to cause the coalition for this fall apart.

LAWRENCE O`DONNELL, MSNBC ANCHOR: But that - you`ve identified what I think is first thing that`s likely to move, the corporate going up from 20 to maybe 25 to help pay for some of this. There`s so much more detail in this that we`re not going to be able to get to tonight. But we will have plenty of time as the tax crusade goes on. David Cay Johnston and Josh Barro, thank you both for joining us tonight, really appreciate it.

DAVID CAY JOHNSTON, MSNBC CONTRIBUTOR: Thank you.

O`DONNELL: Coming up, why a reckless tweeting President has now made it more difficult to prosecute the man accused of killing eight people in a terrorist attack in New York City this week.

(COMMERCIAL BREAK)

O`DONNELL: The President apparently has backed off of his idea of sending the suspect in the New York City terrorism attack this week to Guantanamo. But the President is now calling for the death penalty in the case. NYC Terrorist was happy as he asked to hang ISIS Flag in his hospital room. He killed eight people, badly injured 12. should get death penalty! There is also something appropriate about keeping him in one of the -- keeping him in the home of the horrible crime he committed.

Should move fast, death penalty! Today the New York Times explained to the President why those Tweets are a very, very bad idea. Presidents are typically advised never to weigh in publicly on pending criminal cases. Such comments can be used by defense lawyers to argue that their complaints cannot get a fair trial especially when the head of the executive branch that will prosecute a case advocates the ultimate punishment before a judge has heard a shred of evidence at trial.

Joining us now, Harry Lipman, former U.S. Attorney and former Deputy Assistant Attorney General. He`s now Professor of Constitutional Law at UCLA and Ron Klain is back with us. Professor Litman, Presidents avoid this very easily avoid this whenever asked say we cannot comment on a pending criminal case. What can go wrong when the president does something like this?

HARRY LITMAN, MSNBC CONTRIBUTOR: Quite a Lot. Yes. They do avoid it generally. There`s been a way stray comments that Presidents have made and normally retracted it. But nothing like this sort of mad dog rant that you heard at the top of the show. Two big problems here, the first is the possible tainting of the jury pool and here, of course, that`s nationwide. Trump`s announcement is not in a local market. It is all over the country.

And then the second is that the Department of Justice is going to have to make a decision whether to seek the death penalty and if they go into court having done it by their normal process there will be the argument for the defendant you just did this because you`re pushed to do it by your Chief Executive Donald Trump. Something exactly like that`s been happening in the Bowe Bergdahl case where just this week the judge said I have to consider it as mitigation evidence because maybe the comments calling him a dirty traitor actually pushed them to seek a stricter penalty.

O`DONNELL: Yes, I want to go back to the example that a lot of us remember. This is the only one that I remember of a President mistakenly commenting on a pending criminal case. This Is Richard Nixon in august of 1970 and in an impromptu press conference he found himself stumbling in to the case of Charles Manson. Let`s listen to this.

(BEGIN VIDEO CLIP)

RICHARD NIXON, 37TH U.S. PRESIDENT: I noted, for example, the coverage of the Charles Manson case when I was in Los Angeles. Front page every day in the papers that usually got a couple of minutes on the evening news. Here`s a man who was guilty directly or indirectly of eight murders without reason.

(END VIDEO CLIP)

O`DONNELL: President Nixon then immediately issued a statement saying the last thing I would do is prejudice the legal rights of any person in any circumstances. He went on to say to set the record straight I do not know and did not intend to speculate as to whether the Tate Defendants are guilty in fact or not.

All of the facts in the case have not yet been presented. The defendants should be presumed to be innocent at this stage of their trial. Ron Klain, Richard Nixon was a smart lawyer stepping into that mistake on his own and correcting it as fast as he could because he understood what was at stake.

RON KLAIN, MSNBC CONTRIBUTOR: Yes. So once again Trump is following the Nixon example and not even living up to the Nixon example. It feels like a recurring theme, Lawrence. But I you know this is a serious problem because as harry alluded to, there is a problem of prejudice in jury pool. But an even bigger problem with regard to the Federal Government to seek the death penalty because the Justice Department has to explain how that decision was made, has to show it`s free from politics and a special Federal Statute that requires a Federal Judge in a death penalty case to assure that the death penalty isn`t applied to bias on the basis of religion or national origin.

And trump talking about the ISIS Flag, talking terrorism, all these things as part of his Tweet is going to really make that finding much harder. It`s going to make it harder. If you believe in the death penalty, the tweet makes it hard tore get the death penalty in the case.

O`DONNELL: Professor Litman, the concept of prejudicial pretrial trial publicity was a novel idea that first got some traction in the 1960s. The first case that aware of pleadings in were in the 1950s in the Brinks Robbery in Boston where there was saturation and national publicity about that. The lawyers tried to get a change of venue claiming this. No judges had ever heard of it. They didn`t get anywhere.

But F. Lee bailey, a Boston lawyer, some years later used it successful pleading of prejudicial pretrial publicity. but the remedy has always simply been change of venue. how do you change a venue when it`s the president of the United States making a comment like this to the entire united states?

LITMAN: Right. It beats me. And I think it will beat a normal judge, too. you`re exactly right about the F. Lee Bailey and the Sheppard case in 1966, a very sort of early trial of the century where the Dr. Sheppard accused of bludgeoning his pregnant wife and there was a whole series, the press had a field day portraying him as a devil. And even the Supreme Court in upholding his claim had a kind of dime store feel they said.

Murder, mystery, sex, society and suspense all combine to enflame the public interest here. And they did say when the -- even legitimate First Amendment coverage can sometimes prejudice a defendant`s right to a fair trial and they said that there had to be a new trial but as you put it what can be done? The whole jury pool here is the ones that would have heard trump`s tweet which is to say the entire country.

O`DONNELL: Professor Harry Litman, Ron Klain, thank you both for joining us tonight, really appreciate it.

LITMAN: Thank You.

KLAIN: Thanks Lawrence.

O`DONNELL: Coming up, back when it was different. Back when the President of the United States would never, never comment on a pending criminal case, even if it was a case of assassination

(COMMERCIAL BREAK)

O`DONNELL: The year Donald Trump graduated from high school in 1968 Bobby Kennedy was running for President. On the night that he won the California primary, Bobby Kennedy was assassinated by Sirhan Sirhan, a Palestinian immigrant born in Jerusalem who moved to the United States with his family at the age of 12. It was the first act of terrorism in the United States inspired by the conflict in the Middle East. Sirhan Sirhan later said he killed Robert Kennedy because he supported Israel and the Arab Israeli War of 1967.

The President of the United States Lyndon Johnson did not immediately announce changes in immigration policy because Bobby Kennedy assassin was an immigrant. The President of the United States did not say that Sirhan Sirhan deserved the death penalty as Donald Trump did today after a terrorist killed eight people in New York City this week.

President Johnson said nothing that could have influenced or interfered with any jury that might have to hear the murder case against Sirhan Sirhan. When Sirhan Sirhan was found guilty and the judge was considering a sentence. Bobby Kennedy`s younger brother Senator Ted Kennedy who endured the assassinations of two older brothers wrote this letter to the judge asking to spare Sirhan`s life.

My brother was a man of love and sentiment and compassion. He would not have wanted his death to be a cause for the taking of another life. Moreover, he was a young man totally committed to life and living. He stood against injustice, poverty and discrimination for those evils less in life.

He grew to despise war for war denies the sacredness of life. And he had a special `next for children for they held the promise of life. If the kind of man my brother was is pertinent, we believe it should be weighed in the balance on the side of compassion, mercy and God`s gift of life itself.

Like the Kennedy brothers, Donald Trump grew up the son of a rich man but that might be the only thing that Donald Trump has in common with Bobby Kennedy. We`ll ask Chris Matthews why Donald Trump seems to have learned nothing from Bobby Kennedy`s approach to politics. Chris has written a new biography of Bobby Kennedy.

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O`DONNELL: The man who needs no introduction is joining us tonight. Chris Matthews, the author of the new biography on Bobby Kennedy, Bobby Kennedy: a Raging Spirit is the title of Chris`s new book. And Chris, I read this book And I think of 1968, this campaign, which is what this picture is -- that`s from the Presidential Campaign. Donald Trump graduates from college when this guy`s running for President.

He graduates from college at one of the most interesting times in our lives. There are many political influences out there for him to pick up at that time. And I look at him today, and I wonder, you know, what -- were his eyes open at all in that time?

CHRIS MATTHEWS, MNSBC CONTRIBUTOR: No, I think he went to sheer business school, just business. I don`t think he took the amenities, he took history, he took philosophy, no, none of that. He was interested in a buck and there`s nothing wrong with that. But that`s where he was in terms of his education, and yet -- you and I -- you`re younger than me. But I got to tell you I don`t know anybody that wasn`t for Gene McCarthy or Bobby Kennedy. The ones are for you and Humphrey, how did you miss the boat?

Didn`t you get the memo? We`re supposed to be against the war. It was the most exciting time of my life politically. There was a zest in the air. I was at Chapel Hill. I mean everybody was thinking about the war and about -- you go to these anti-war meetings, they were fantastic.

You know they were exciting. Everybody was thinking J Edgar Hoover would come in the door with the photographers and people would yell, no pictures, no pictures. There was an excitement. People used the word fascist and casual conversation about the people running the country and running the war at the time.

O`DONNELL: As a kid, watching JFK become President, all of my focus is in elementary school was just on this new President and the new picture of the President that goes on our wall. I paid no attention to Bobby Kennedy until the funeral of his brother. Until I see him at the funeral of The president, that`s the first time that -- when do you first up an individual focus on Bobby Kennedy when you`re watching the world unfold in those days?

MATTHEWS: Well I have to tell you, it was gradual. It was spending time in Africa and the Peace Corps and having so many -- I was a Gene McCarthy until the end when I was praying, literally praying for Bobby to win because he was the only guy that could end the war. And the guy`s a little younger than me, maybe a year or two young. We were in love with the guy. And then I met the Kennedy guys when I got back. Here`s an interesting thing, I was a capital policeman, cop like Harry Reid was and mike -

O`DONNELL: At the U.S. Capitol in Washington, D.C.

MATTHEWS: U.S. Capitol and I worked in the daytime for Senator Frank Moss writing speeches and stuff. And at night I`d hang around with the cops. And the guy, the building super, the capitol engineer, and he was a brilliant guy. And he just -- he`s the guy that fixed everything that was broken. And he started telling me about the senators who were sitting and watching the subway.

You know the subway gets off at the Capitol. And they come up the escalator. He`s telling me about it. You know I use to watch all the liberal Democratic senators around here. And they were pretty snooty. And you know the only one that said hello to the cops as Bobby Kennedy.

And I thought wow, he was also the guy that was best for minorities and civil rights. An so I thought this was interesting and the more I read Jack Newfield and people like that I go he cared about cops and fireman and firefighters and waitresses. He said they`re my people. And if look at the back of that book, they`re the ones that cried and saluted him when he died.

Then at the same time, nobody was more connected through the black community like he was. I mean, they were saying, I don`t have the republic for him. They learned it at church. And I started to meet guys -- you know some of these characters. Paul Corbin who was Kennedy`s handshake man and he loved him.

And Frank Mankiewicz and Ed Guthman and I got to know Wayne Owens, my first boss. The reverence these people had for him as a person.

O`DONNELL: Would - he won the California primary.

MATTHEWS: Right.

O`DONNELL: And would he have the nomination, would he have won election night if he won the nomination?

MATTHEWS: We thought he was going to do it because it`s a dunamic. Here`s what I`d say can you imagine how history would have been different if Chicago had come that summer. The horror became with the police and the kids were terrible too, some of them. The cops were -- police riot, Daly people, horrible scene, giving up. tear gas. I suppose Bobby had walked into that convention hall.

Suppose he had been there and brought the crusade of opposing the war into that hall. I think things would have erupted. We do don`t know which side Daly would have gone on. There would have been guys like Jim Tater, Philly, to be on the wrong side, some of the Bronx guys, but I think he would have shaken it up. He said I`m going to chase Hubert Humphrey tail all across this country.

O`DONNELL: Right, right.

MATTHEWS: But New York primary would have been a challenge too.

O`DONNELL: And Nixon won by less than 1 percent of the vote against Humphrey. This guy. my money`s on he would have -

MATTHEWS: I don`t know if you got to the point in the book where Nixon`s watching Bobby announce, and he`s out of Oregon and he`s sitting there in the room and he turns the TV off and he`s like they`re watching the TV blank, and he`s saying like spooky, he goes Nixon in that spooky voice forces will be aroused, we cannot imagine. This is not going anywhere good. I mean he was spooked.

O`DONNELL: An amazing book, Chris Matthews, thank you very much, great to have you here.

MATTHEWS: Thank you Lawrence. And you`ve have something coming in a couple weeks.

O`DONNELL: We`re not talking about this tonight. This is Chris Matthews Bobby Kennedy night.

MATTHEWS: its number one by the way right now.

O`DONNELL: number one on Amazon.

MATTHEWS: Right. Number one. It`s been there for three days.

O`DONNELL: boy, i got a lot of catching up to do when my book comes out. Chris, thank you very much.

MATTHEWS: Thank you. Lawrence, you`re great.

O`DONNELL: Really appreciate it.

MATTHEWS: Thank you.

O`DONNELL: Tonight`s last word is next.

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(BEGIN VIDEO CLIP)

SETH MEYERS, COMEDIAN: According to report the Republican Tax Bill the cut, cut, cut act, which is a terrible name, But it is a lot shorter than calling it the if I cut your taxes, will you forget about my treason act.

(END VIDEO CLIP)

O`DONNELL: Seth Meyers gets tonight`s Last Word. The 11th hour starts now.

END

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