Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: July 9, 2018 Guest: Elizabeth Warren
LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.
I just want to run something by you from Judge Kavanaugh`s 2009 law review article because he seems to be saying that he believes presidents can be indicted, not just indicted, can be put on trial while they are in office, and that`s why he`s so strongly recommending to Congress that they pass a bill that prevents that.
In that law review article, he says the indictment and trial of a sitting president, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.
And he does not say the indictment and trial of a sitting president is prohibited by the Constitution.
RACHEL MADDOW, MSNBC HOST, "TRMS": Right.
O`DONNELL: He says here`s what would happen if you did that.
MADDOW: Right. And that highlights Brett Kavanaugh`s role as a political actor, as the lead author of the Ken Starr report in the Clinton impeachment hearings. He was a lawyer who was involved on the Bush side in the Bush v. Gore recount issue. He was involved in all sorts of partisan Republican fights over the years, and, therefore, grappling with these executive power issues and with the issues of a presidential accountability.
The issue is when you are getting named to the Supreme Court and there is no Supreme Court precedent on these matters, this Supreme Court will essentially be called upon, if these things come to them, to create Supreme Court precedent on these matters. So, he won`t be bound by anything the Supreme Court has done before because the Supreme Court has never grappled with whether or not a president could be indicted. He`s on the record saying it would be a terrible thing that would happen.
That would be the basis for him saying I think that a president shouldn`t be indicted and the Supreme Court will create precedent in that direction. But, again, this all has to be fought over by people who are now going to start going through the millions of pages of documents that make up his public record.
O`DONNELL: Rachel, if I could talk to one Harvard law school professor tonight about this nominee, it would be Professor Elizabeth Warren, who actually has a vote on the nominee. And, OK, she`s a former professor, but she is going to join us later to give her reaction both as a former Harvard law school professor and a voting senator on this nomination.
MADDOW: As someone who is neither a lawyer and tries never to play one on TV, I`m very glad to hear that. Thank you, my friend. Thanks, Lawrence.
O`DONNELL: Thank you, Rachel. Thank you.
Well, tonight, as predicted and as announced by NBC News, at least a full 10 minutes before the president announced it, President Trump nominated for the United States Supreme Court a federal appeals court judge, Judge Brett Kavanaugh, who has written in detail that he believes that presidents of the United States should not be subject to criminal prosecutions and investigations. Judge Kavanaugh was a staff lawyer in the office of special prosecutor Kenneth Starr whose investigation of Bill Clinton led to the impeachment of President Bill Clinton and the House of Representatives and the acquittal of President Clinton in an impeachment trial in the United States Senate.
In a law review article in 2009, Judge Kavanaugh suggested it is currently possible for a sitting president to be indicted and that Congress should take action to prevent presidents from being subjected to civil lawsuits or criminal prosecutions during their time as president. Judge Kavanaugh said that after working in George W. Bush`s White House, he changed his mind about the legal liabilities that a president should face.
The Minnesota law review he wrote, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents like certain members of the military, be deferred while the president is in office. Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the president. In particular, Congress might consider a law exempting a president while in office from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.
And here is the passage in that law review article that indicates that Judge Kavanaugh currently believes that a sitting president can be indicted and can be put on trial while president. Judge Kavanaugh wrote, quote: The indictment and trial of a sitting president, moreover, would cripple the federal government, rendering it, unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.
Now, Judge Kavanaugh did not write that the indictment and trial of a sitting president is prohibited by the Constitution. Judge Kavanaugh`s article seems to presume, as a constitutional matter, that the president can be indicted and can be put on trial in a criminal court unless Congress specifically passes a bill that prevents that.
Joining our discussion now is Cecile Richards, the former president of Planned Parenthood and the author of "Make Trouble: Standing Up, Speaking Out and Finding the Courage to Lead -- My Life Story". Also joining us, Ron Klain, a former senior aide to President Obama and former chief counsel to the Senate Judiciary Committee. And Neera Tanden is with us. She`s the president of the Center for American Progress.
And, Neera, you have been at the Supreme Court tonight where there has been a public protest reaction there to this nominee. What is happening there now?
NEERA TANDEN, PRESIDENT, CENTER FOR AMERICAN PROGRESS: Lawrence, I have been here since 9:00 -- since really the announcement. And we have a growing crowd. I think it is now over 1,000 people who are deeply concerned about Brett Kavanaugh and what he will do for Americans rights. And this crowd has been growing steadily and getting more and more energized and speaking out about this nomination that really is a threat to all of our rights.
O`DONNELL: And, Cecile Richards, everyone has been concerned for what any Trump nominee would mean to Roe versus Wade. And NBC News is reporting that last fall, Judge Kavanaugh wrote a decision siding with the Trump administration lawyers to block a migrant teenager in Texas from being released from custody to receive an abortion. The full appeals court intervened to overturn his ruling.
CECILE RICHARDS, FORMER PRESIDENT, PLANNED PARENTHOOD: Yes.
O`DONNELL: And Kavanaugh then responded by criticizing his colleagues on the court for creating what he called a new right for unlawful immigrant minors in U.S. government detention to obtain abortion on demand.
RICHARDS: I mean, it was incredible case and she was, of course, just trying to exercise her legal right and, in fact, if he had been successful, he would have pushed her actually into her second trimester.
I think that this nomination is causing concern, obviously, for women all across this country. Roe versus Wade has been the law of the land for more than 40 years, but we know it`s been hanging with a one vote difference of the court. And I think that women who are already wildly concerned about this president and everything he`s done are going to be deeply concerned about this nomination. I think what you are seeing outside of the Supreme Court tonight is just one indication.
O`DONNELL: Ron Klain, I want to get your reaction to this passage in his 2009 writing where he says -- he talks about what the indictment and trial of a sitting president would mean. So this means that Judge Kavanaugh would be -- if he finds himself in a position where he can rule as a Supreme Court justice that it is unconstitutional to indict a sitting president, he would be in conflict with Judge Kavanaugh.
RON KLAIN, FORMER SENIOR AIDE TO PRESIDENT OBAMA: Well, he would, but I mean, clearly, this article which largely says that the president -- Congress should find a way to exempt the president any kind of from even being questioned clearly was eye candy for Donald Trump and said he would be simpatico to his position, kind of passes the Rudy Giuliani test of Supreme Court justices.
And, yes, I agree. If he lips all the way over and says Trump in fact legally is protected, that would be a change in position. But I think that`s why question number one in front of the Senate judiciary committee should be, what were you asked about this article? What did you say? What assurances did you offer? What kinds of things did the White House want to know?
He is the only potential nominee on Trump`s list who explicitly wrote the president should have protection from investigations. That definitely had to raise questions in the process. We need to know what he said about it.
O`DONNELL: But that means he`s also the only one who specifically wrote that only Congress can provide those protections. The Supreme Court cannot.
KLAIN: Yes. So, look, I think that clearly what this means for Donald Trump is one question. What it means for the other three hundred million of us is another question. Kavanaugh would reverse Roe versus Wade. He dissented from the case that upheld the Affordable Care Act, the right of employees to get birth control under the Affordable Care Act.
He would give women`s rights over to their employers to decide whether or not they should get birth control. He is a very, very conservative judge. That`s why he was picked. I think that`s the issue that will be front and center as well.
O`DONNELL: Neera, he -- when he was confirmed, he got four Democratic votes. Only one of those senators is still in the Senate. That`s Senator Carper.
You are hearing from Democratic senators there tonight. Does it sound like there will be any Democratic support for this nominee?
TANDEN: Right. From the Democratic senators who are here tonight, all we`re hearing is about a protection of American`s rights. And I think just -- we should be clear about this, that this is a nominee who threatens Roe, a nominee who threatens the health care of millions of people and a nominee who has spoken about the protections a presidents should have from investigation.
It`s unclear where he would land up on that, but he has spoken more clearly about the need for a president not to be indicted than any other nominee. And I think Americans should be suspicious. The senators here tonight are willing to stand up and fight for the issues we all care about, the progressive values we care about, but we have to remember that there are a number of Republicans who have claimed to be pro-choice nominees.
Brett Kavanaugh has gone out of his way to oppose Roe, to dissent against - - who argued the dissent side in Roe. So I think we can`t have kabuki theater about this. People have to state -- he has to state whether Roe should be the law of the land. And only then can we really determine, you know, his actual views.
O`DONNELL: Sue Richards, one of the senators who can stop this nomination, Republican Lisa Murkowski of Alaska, has released a written statement. And she says I intend to carefully consider the American Bar Association`s rating on this nominee, the information obtained through personal meetings, my own review of Judge Kavanaugh`s qualification and require and the view of Alaskans determining whether or not to support him.
Is the best strategy for opponents of the nomination to literally go to Alaska and try to stimulate Alaskan opposition?
RICHARDS: Oh, I think there will be. I mean, Senator Murkowski will be hearing from a lot of people in Alaska, a lot of women. But I think look, I am really glad that Senator Murkowski, Senator Collins, they didn`t go to the White House tonight. They`re obviously --
O`DONNELL: They were invited.
RICHARDS: They were invited.
O`DONNELL: It was an audience of senators, among others. And among the Republican senators who did not attempt were Lisa Murkowski and Susan Collins, the only two pro-choice Republicans.
RICHARDS: Right. And I think it is really important that, of course, confirming the next Supreme Court justice has implications not only for the women of Alaska but for the woman all across this country.
I think the important thing, too, about Judge Kavanaugh is it`s not only what his position is on Roe. I mean, he has taken an active position in believing that bosses should be able to determine whether or not their employees have birth control. We know there is a big ACA case which is basically protecting the rights of women not only to get family planning, protecting folks with pre-existing conditions, protecting women from not having to pay for more health insurance than men.
There are every single access to health care and economic issues for women are on the line here in this nomination, and I certainly hope Senator Murkowski, Senator Collins and others force him to say what is his position on Roe versus Wade and on women`s equal access to health care.
O`DONNELL: Ron Klain, no one has been through the confirmation process more than you have and the Senate Judiciary Committee as counsel in the Clinton administration, in the Obama nomination. You have coached nominees through the process successfully.
Strategically, what can be done for the Democrats to stop this nomination?
KLAIN: Well, first, they have to make sure the Judiciary Committee does it job. And that starts with a thorough record of Brett Kavanaugh, through a review of Brett Kavanaugh`s records, that included his years in the White House. I think this is going to be a real flash point in this nomination, Lawrence.
When Brett Kavanaugh was nominated for the appellate court and approved, the Judiciary Committee did not look at the literally hundreds of memos he wrote as a senior aide to President Bush. And I think it is very important for the committee, for this life appointment to make these important decisions Cecile and Neera have been talking about, for them to see the full record here.
What kind of memos did you write to President Bush? What positions did you take on legal issues in those memos? What do the folks who made this pick know that we don`t know? That`s the point. The Federalist Society put him on this list, picked him, they know what`s in those records. They know what he did as a Bush aide. We don`t.
The public and Judiciary Committee should have the same right to that information.
O`DONNELL: Neera Tanden, the opponents of this nomination who have gathered at the Supreme Court tonight, are -- is their focus on Republican senators tonight, like Susan Collins or Lisa Murkowski? Or are they also focused some Democratic senators who might be considering supporting the nomination.
TANDEN: I think they`re focused on a majority in the Senate, which obviously means we need Democrats to oppose this nomination. But we can`t do this with Democrats alone.
And I would just say for Senator Collins and Senator Murkowski, they could be in office when a Brett Kavanaugh, when a Justice Brett Kavanaugh decides with the majority to overturn Roe or to gut the Affordable Care Act.
This is a decision that they make with a rate of millions of Americans on their shoulder. I think the people on these streets here, the people on this rally are focused on making their voices heard. It is really important for all of us to call our senators. They are -- this is advise- and-consent in the Senate, to call our senators and let them know this nomination is not something that we agree with as Americans, that our rights should not be up to Donald Trump and a Trump court.
O`DONNELL: Cecile Richards, if Judge Kavanaugh is confirmed and if he votes with a majority to overturn Roe versus Wade, it would be overturned by five men without a single woman`s vote.
RICHARDS: Absolutely. And, look, you know, there are a more than a dozen cases that are just one decision away from going to the Supreme Court. So, this is a very real, real possibility. This isn`t -- we are not playing around.
And I think one of the things to look at is not only who we`re seeing in opposition to this nomination, but I notice before I came on tonight, Lawrence, that every major national anti-choice organization is popping the champagne tonight, saying this is a huge victory finally to get an anti- choice majority on the Supreme Court. So I think it is going to be incredibly important in these hearings to push this judge about where he feels -- where he stands on a case that was decided 45 years ago, Roe versus Wade.
O`DONNELL: Ron, where do you expect most of the emphasis to be in the confirmation hearing? There is obviously two big areas, one is Roe versus Wade. The other is the possible avenues of challenge of the president of the United States, both through special prosecutor`s ability to subpoena a president, the ability possibly to indict and try a president.
KLAIN: I think that`s right, Lawrence. I think those are two big ones. I`d add two more. One is the Affordable Care Act and its survival at the Supreme Court and what Judge Kavanaugh said about that. And the final is Judge Kavanaugh`s very conservative views on economic regulation and environmental regulation.
You are going to have Senator Warren on soon. She helped create the Consumer Financial Protection Bureau. Judge Kavanaugh said it was unconstitutional and would just wipe it off the books. He`s voted with big business on every kind of environmental rule.
So, I think these environmental and economic issues are a fourth element of his confirmation that I expect Democrats to have very hard questions about.
O`DONNELL: I am taking notes from Ron Klain on my questions for Senator Warren who will be joining us in a minute.
Cecile Richards, Neera Tanden, Ron Klain, thank you for starting off our discussion tonight.
Coming up, Senator Elizabeth Warren will join us. We will get her reaction to this nominee coming up.
And later, how will the Supreme Court nominee Brett Kavanaugh rule in a possible Trump versus Mueller case?
O`DONNELL: That is a shot of the protest that has occurred on the steps of the United States Supreme Court tonight after the president has announced that his nominee for the United States Supreme Court is federal Circuit Court of Appeals Judge Brett Kavanaugh.
Joining us now, Senator Elizabeth Warren, Democrat from Massachusetts.
Senator Warren, thank you for joining us tonight. I really appreciate it.
SEN. ELIZABETH WARREN (D), MASSACHUSETTS: Thank you.
O`DONNELL: I`m sure you heard in or in Brett Kavanaugh`s acceptance of this nomination from the president tonight, he mentioned his time teaching at Harvard Law School. You`ve also been on the faculty of Harvard Law School. I`m wondering if you overlapped with Judge Kavanaugh. If you met him at Harvard Law School or known him in anyway from Harvard Law School.
WARREN: I don`t know him from -- personally from Harvard. What I knew him from are his opinions that he`s written and I know him from the fact that he appears on the list that the Federalist Society put together of people who will overturn Roe versus Wade. You know, that`s how we know Brett Kavanaugh. That`s the principal way.
O`DONNELL: And I just want to go to something right away that Ron Klain mentioned in our last segment. And that is Judge Kavanaugh`s view of the Consumer Financial Protection Bureau. What do you think it would mean to the future of the bureau if he becomes the Supreme Court justice?
WARREN: Well, look, he`s already said he thinks it is unconstitutional because it has a single director rather than multiple directors, which it`s not the only agency that has a single director. In fact, the Environmental Protection Agency is another one that has a single director and we have the Office of the Comptroller of the Currency, you know, throughout government.
Here`s what troubles me about it, though -- I look at it this way -- Donald Trump had a list of people that had been pre-screened by the Federalist Society. And, so, he knew that everyone on that list was committed to overturn Roe versus Wade because that`s the standard he used. He knows that everyone on that list is committed to overturning health care rights for tens of millions of Americans.
So the question then becomes, how do you pick under those circumstances? And Donald Trump picks the nominee, picks the person who says, you know, it would be a total disaster for the United States of America if it turned out that the president of the United States got indicted.
Now, the reason this is so important is, look at what he did with the consumer agency. Look at what he did with the Environmental Protection Agency. He didn`t limit himself to say, hey, listen, let`s stick with a strict reading of the Constitution. I`m going to defer to let Congress decides what it wants to do, carry out the rules.
Instead, he thought it was better to substitute his own judgment. And he wants to put his own judgment forward for these agencies, how he thinks things would work better. He is a political animal. He has been for a big part of the formative years of his career.
And, so, he thinks of this, I think, as, wow, we need to make sure that the United States of America stays safe by protecting the president from, what, from investigation, from indictment, from prosecution. That`s what troubles me about the whole picture here. Donald Trump has got the trifecta. He`s got someone who will be committed to overturn Roe versus Wade, someone who will be committed to rolling back health care for millions of Americans and someone who, it looks pretty likely, will help Donald Trump if he gets in to serious criminal trouble.
O`DONNELL: Senator, does it give you any comfort that in Judge Kavanaugh`s writing in 2009 when he was saying that indicting and prosecuting a president would be bad for the country that he kept saying repeatedly throughout the article that only you in Congress can prevent that, that only Congress can pass a bill to basically defer any prosecutions of the president until after the president leaves office.
WARREN: You know, the part that worries me most is he keeps talking about what a disaster it would be for the country. And ultimately, the Supreme Court is going to have to make law in areas where we don`t have precedent. And in other opinions, Judge Kavanaugh has already made clear he is willing to put his own judgment in and to put his judgment on the line.
And if he thinks that it would be a disaster for Donald Trump to be indicted, he looks like somebody who could very much be on Trump`s side. And what`s so worrisome about all of this is he very well could be the deciding vote in whether or not a criminal prosecution against the president goes forward.
Look, I get it. We`re looking ahead. But this is a president right now who hears the hoofbeats of an investigation that is bearing down on him. The Mueller investigation has been going forward. It has already produced multiple indictments, multiple guilty pleas and all of the threads keep tying back to Donald Trump himself. And that`s a real problem.
And Donald Trump is nothing if not a man who protects first and foremost Donald Trump.
O`DONNELL: Would you suggest to Democrats or opponents of the nomination that the place to go to work is in Maine and Alaska, to try to get the votes of your Republican colleagues there, the only two Republican senators who are pro-choice?
WARREN: Look, the way I see this is nobody makes it to the Supreme Court without a majority in the United States Senate. And I think people all across this country need to raise their voices.
Always keep in mind on this, we didn`t have the votes to protect the Affordable Care Act. We didn`t have them. I remember the day after Donald Trump was sworn in thinking about the fact that now the Republicans control the House, control the Senate, control the White House, they could roll back Obamacare next week. And I really feared they would do it.
But people across this country raise their voices and it got bigger and it got louder and bigger and louder and it was Democrats. It was Republicans. It was independents.
People made their voices heard. And ultimately, when they did that, we got enough Republicans to cross the aisle and to save health care for tens of millions of Americans.
You know, that is the remarkable part about a democracy. We raise our voices. We can all still be heard in Washington.
And for me, that`s what this is about right now, raising our voices, all of us. We need to speak up like we`ve never spoken up before. This is the time.
O`DONNELL: I`m sure there will be questions in the Judiciary Committee, especially from Democrats, about the rights of children who are being held at the southern border, some of whom you were able to visit when you went down there. Judge Kavanaugh has already ruled in that arena last fall.
NBC News reports that Judge Kavanaugh wrote a decision siding with the Trump lawyers to block a migrant teenager in Texas from being released from custody to receive an abortion. He tried to prevent that. He was overruled by his own colleagues on the Circuit Court of Appeals, and then he complained that his colleagues were creating a right to, what he called, abortion on demand for girls in that situation.
WARREN: Yes. You know, I was just down there two weeks ago yesterday, down on the border. And what I saw was deeply shocking. I talked -- I met directly with women whose children had been taken away from them, women who had been lied to when their children were taken away, women who had absolutely no idea where their children were and women who, with one exception, had had no phone calls, no contact whatsoever with children that had been taken away by the United States government.
I even met with the head of the ICE facility where these women were being held. And, look, there is just nothing else to call it. It is a detention facility. It had been re-named by the Trump administration a family reunification center.
And the person in charge said, hey, we don`t have anything here to care for children, to deal with children. We have no children here, no capacity to take them in and no plans to reunify these mothers with their children.
And we have been pushing now for two solid weeks. The Trump administration cannot come up with a plan to put children and their parents back together. In fact, what we keep finding out is there are even more children who have been separated from their parents than we initially understood. And someone like Judge Kavanaugh, who is so worried that we may somehow create rights in the people whose lives are being torn apart by the United States government, this is someone who is leaning in exactly the wrong direction.
And you know, there is a perfect example, Lawrence, of an area. The Supreme Court may end up having to make new law in this area. When that`s the case, I want to know something about this judge. I want to know something about this judge`s values. And what he has revealed so far is not something that reflects America`s values. He seems not to have any concern for what it means to be a 16-year-old stranded in this country. What it means to be a woman who comes here who is fleeing violence and asking for asylum, what it means to be a refugee.
That is not something, evidently, that Judge Kavanaugh cares about. And I think that`s going to be a real problem for him during this nomination this nomination hearing.
LAWRENCE O`DONNELL, MSNBC HOST: And senator, as you know, there are two federal courts in California that have cases that could end up in the Supreme Court. The Flores case the judge ruled today against the Trump administration`s attempt to be able to hold children for more than 20 days, which in the Flores case has always forbade. And the judge in that case called the Trump administration`s reasoning tortured.
The judge in San Diego federal court has discovered that -- and only because of this litigation, has discovered that the Trump administration claims to have 102 children under the age of five and that judge gave them a two-week order to get those children reunited, and they have managed in two weeks to reunite exactly two of them.
WARREN: That`s right. In fact, think about what the Trump administration`s defense in court was. It effectively was the Trump administration is so incompetent and failed to keep good enough records when families were torn apart that they can`t figure out how to bring them back together. That`s what they went into court in effect to argue.
The Trump administration has to be held accountable for what they have done to human beings on the border in the name of the United States of America.
O`DONNELL: Senator, your experience dealing with Senator Collins and Senator Murkowski, what do you think are the most effective lines of persuasion possibly on this nomination?
WARREN: Well, look. They will make their own decisions, but both of them have been quite public about their pro-choice views. They understand a woman`s constitutional right to make a decision about her own body. They have been very strong in saying they did not want to criminalize abortion and did not want to punish women. But they also care deeply about health care.
Remember, they voted to help preserve health care coverage for tens of millions of Americans. And we know healthcare is going to be on the line with this Supreme Court pick. And Judge Kavanaugh has already made clear that he is not a supporter of the health care bill and the rights of Americans to retain their health care protection.
So I think those are two issues that are going to be powerfully important to senator Collins, to senator Murkowski, but I`m just going to be blunt, I think they should be important to every senator. I don`t think there should about just the focus on two. I think every single senator has a responsibility as they prepare to vote on this nomination to look at the question of what it will mean for a woman`s constitutional right to choose. What it will mean for healthcare for tens of millions of Americans. What it will mean for having a justice who has already indicated that he is concerned about whether or not a sitting President has indictments outstanding against him, whether or not w are going to be able to protect environmental laws. The list is a long list, but right there at the top of it is going to be a real decider for a whole lot of people in the United States Senate.
O`DONNELL: Senator Elizabeth Warren, thank you very much for joining us on this important night. We really appreciate it.
WARREN: Thank you.
O`DONNELL: Coming up, this Supreme Court nominee will be asked how he will rule in the case of Trump versus Mueller, which is very, very likely to come to the Supreme Court.
O`DONNELL: The most important question in the President`s mind tonight about his new nominee for the Supreme Court, Brett Kavanaugh, is if confirmed how will the new justice rule on the case of Trump versus Mueller, the case in which President Trump appeals a court order to comply with a subpoena from special prosecutor Robert Mueller to testify under oath to a grand jury.
The President`s lawyers have no doubt told him that the Supreme Court ruled unanimously that President Richard Nixon had to comply with the special prosecutors subpoena for audiotapes of his White House conversations. But on TV, Rudy Giuliani pretends that never happened.
(BEGIN VIDEO CLIP)
DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Are you banking on the fact that Robert Mueller just wont take that step, wont subpoena the President?
RUDY GIULIANI, TRUMP`S ATTORNEY: I am not. I have no idea what he is going to do. I think if he does, we can have the subpoena quashed. To subpoena the president, never been done successfully in the history of this country. There is very, very strong law that the President cannot be subjected to criminal process.
(END VIDEO CLIP)
O`DONNELL: In fact, there is no law saying the President cannot be subjected to criminal process, as President Nixon painfully discovered before he decided to resign the presidency and accept a pardon from his former vice President after he resigned. That`s how President Nixon actually avoided criminal process, by resigning the presidency and getting a pardon that prevented any criminal process from closing in on Richard Nixon.
In a series of TV appearance yesterday, Rudy Giuliani said that the President would submit during an interview with the special prosecutor only if the special prosecutor`s team revealed all the evidence that they have assembled against the President. That is the same thing as saying the President will never submit to an interview because no prosecutor would ever reveal to a witness before the interview everything they know about the witness.
Rudy Giuliani continues to double talk the issue of the President agreeing to an interview or testifying by attaching possible conditions to the President testifying and then saying that the President really wants to testify.
(BEGIN VIDEO CLIP)
GIULIANI: George, he wants to testify. He believes --
UNIDENTIFIED MALE: That`s hard to believe that any more, Mr. Mayor.
(END VIDEO CLIP)
O`DONNELL: It has always been hard to believe that. Rudy Giuliani said something much more important this weekend that got very little notice because he didn`t say it on TV, and it reveals exactly why President Trump and Rudy Giuliani constantly attack the special prosecutor with the lies that the investigation is a witch hunt. And AS Giuliani said on TV this weekend that the investigation is the most corrupt investigation that he has ever seen.
We will bring you that after this break. And, hint, it`s all about impeachment.
(BEGIN VIDEO CLIP)
SEN. CORY BOOKER (D), NEW JERSEY: It`s almost like I am watching a bad movie that now a President of the United States has got sort of indemnified himself by picking the one person he knew would have his back, the one person that would give him shield from anything that might come at him, even though we now see that numerous people around his campaign and his administration are under investigation right now.
(END VIDEO CLIP)
O`DONNELL: The one thing a Supreme Court justice cannot protect a President from is an impeachment proceeding. That was senator Cory Booker tonight with Rachel Maddow.
And this weekend in an interview with The New York Times, Rudy Giuliani said nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation and that`s why public opinion is so important, and that is why Rudy Giuliani says things like this.
(BEGIN VIDEO CLIP)
GIULIANI: This is the most corrupt investigation I have ever seen.
(END VIDEO CLIP)
O`DONNELL: Joining us now Jonathan Alter, MSNBC political analyst and a columnist for "the Daily Beast." And back with us if Ron Klain.
And Jonathan, there is much concern tonight about Brett Kavanaugh`s stated preference that Presidents never be criminally investigated, criminally prosecuted, criminally indicted while they are sitting Presidents. But Rudy Giuliani seems to be worried much more about the possibility of impeachment than about anything happening in a courtroom.
JONATHAN ALTER, COLUMNIST, THE DAILY BEAST: Well, he is trying to poison the jury pool. And jury being the American people.
O`DONNELL: And Congress.
ALTER: And Congress. And so he did this weekend what they called the full Ginsburg. William Ginsburg was Monica Lewinsky`s attorney. And he used to go on all the Sunday shows to deliver a message. So his message, which is to slime Robert Mueller, who is probably the person with the most integrity of anybody in our country right now, making up lies about Mueller and trying to poison people`s opinions of him. But I don`t think it is going to work. I don`t think Giuliani is a particularly effective messenger and it certainly doesn`t do anything to dissuade Mueller from pursuing his investigation.
O`DONNELL: Let`s listen to what Judge Kavanaugh said tonight is his judicial philosophy.
(BEGIN VIDEO CLIP)
JUDGE BRETT KAVANAUGH, NOMINEE FOR SUPREME COURT JUSTICE: My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the constitution as written, informed by history and tradition and precedent.
(END VIDEO CLIP)
O`DONNELL: And, Ron Klain, that judicial philosophy is going to be questioned closely when it comes to that law review article in which he said very, very clearly that Congress must act to protect the President from being indicted or put on trial while President because he does not believe that judges have the power to block that.
RON KLAIN, FORMER CHIEF COUNCIL, SENATE JUDICIARY COMMITTEE: Yes. I mean, obviously, I think there is going to be a bunch of questions around this. This is a person that spent the `90s trying to prosecute President Clinton.
O`DONNELL: Yes. He was on Kenneth Starr`s staff.
KLAIN: On Kenn Starr`s staff as supposedly the author of the infamous Starr report. And so, he spent five years trying to prosecute a President and trying to get a President impeached. And then after that was over, wrote an article saying, hey, you know what, I changed my mind. Turns out actually Presidents should be exempt.
UNIDENTIFIED MALE: There is a big record.
O`DONNELL: What is so fascinating about this 2009 law review article is just how juvenile it is when it comes to describing the presidency because he says he had no idea.
O`DONNELL: That the presidency was a really big job. When he was trying to prosecute the President through the impeachment process and Kenneth Starr, he didn`t realize that the President had all these issues like national security. It is just a stunning part --.
KLAIN: It has a big aw shucks quality about the presidency to it. Of course, since then, again, Donald Trump has shown us that maybe presidency isn`t a big job, working three days a week and going and play gulf every weekend. So I think he -- I think Judge Kavanaugh will have to be asked about this and have to ask about whether or not in fact Donald Trump truly is too busy to be asked questions.
In the end, Judge Kavanaugh may be willing to shield for Donald Trump. What he cant picked Donald Trump from is Rudy Giuliani, his won lawyer, who continues to say these ridiculous things, as Jonathan said, be smirching one of the most a raw of public service we have in America. It is a smear job that shouldn`t work. It is a smear job that will not deter Robert Mueller. That`s for sure.
O`DONNELL: Jonathan, the senators who the President really wanted to see in his audience tonight at the White House were not there. They invited senators, invited all Republican senators. Susan Collins, Lisa Murkowski, the two pro-choice Republican senators did not showed up. They just issued statements saying sorry, can`t be there. They didn`t say why they weren`t there. But is that a sign of hope for people trying to block this?
ALTER: Well, I think they are taking a wait and see attitude. They want to see whether something comes out. And as Ron has indicated, it sometimes does. There are things that we don`t know about Brett Kavanaugh even though he has been on the bench for 12 years. We don`t know what he did in the Bush administration when he had a lot of contact with President Bush, what he recommended. And we don`t know what he did when on Ken Starr`s staff.
You know, I covered some of that at the time 20 years ago. And what I heard at the time don`t have proof of this. Is that Brett Kavanaugh was leaking. Now unlike Bob Mueller, Ken Starr`s staff routinely leaked details of that investigation. That`s in violation of rule 6-e of the rules of federal and criminal procedure. So I think --.
O`DONNELL: -- live on our screen having gone from our discussion here at the LAST WORD over to get another LAST WORD there at the protest location.
And, you know, but Jonathan, we don`t know that the Democrats will get any of that material. and the Republicans can go ahead with a vote without any of that material being distributed.
ALTER: It could have say a reporter who dealt with Brett Kavanaugh 20 years ago come forward and said, yes, he did leak to me. We just saw that happen with a reporter for the Intercept. And if that happens, then, you know, he would need to ask questions about why he was violating the law and leaking to a reporter.
O`DONNELL: Ron, procedurally, I mean, what people think I think that there is a lot of trip wires that Democrats can use both in the committee and on the Senate floor. I haven`t been able to find any of those. I mean, I think what people are mistaking is there is an area that is tradition. And there is an area that is rules and there is much more tradition than there are rules on this. And if Mitch McConnell decides he doesn`t care about getting any more paperwork from this nominee, he doesn`t have to get it. He can just bring this nominee right to the floor.
KLAIN: Look, the power of the minority is the power to raise the price on the majority for acting to throw some hurdles and roadblocks in the way to delay things. But Mitch McConnell will pay any price to get Brett Kavanaugh confirmed. If the senate - if the Democrats say there will be no more legislation in the Senate, there will be no more nominees, Mitch McConnell will trade all of that for this nomination. And I think that is the fundamental limitation.
In the end, to beat Brett Kavanaugh, the Democrats have to beat Brett Kavanaugh --.
O`DONNELL: With votes.
KLAIN: With votes. With 51 no votes. That`s really what it comes down to.
O`DONNELL: And that means Republican votes, Jonathan.
ALTER: Yes. And it`s not likely for a Republican vote. Remember, Susan Collins voted for him when he went on the bench 12 years ago. So this is - -.
O`DONNELL: But they always make the statement this is a new a new vote. This is a new job.
ALTER: Yes. And so, it is possible that he can be block without being likely. And Democrats have to go with possible right now and fight this as hard as they can. But if there is a situation where they vote for him. And then Joe Donnelly of Indiana or Joe Manchin of West Virginia, if they go ahead and also vote for him, I hope Democrats aren`t too hard on those guys, you know, if their votes are not actually needed. If the cause is lost and then they do something to defend themselves politically to get re- elected. Sometimes Democrats can be a little bit unforgiving in those situations and they should think about it in a more sophisticated way.
KLAIN: Yes. I think the politics this time are different though. It reminds me of the Bork nomination 30 years ago. The balance of the Supreme Court turned. That everyone (INAUDIBLE) when Bork was nominated, well, the southern Democrats would have to go along. Everyone have to listen to Ronald Reagan. Follow Ronald Reagan. And in the end, the politics completely reversed and the good political vote was to vote against Bork because the case had been made against him. The country rose up. And he was beaten by Democrats and Republicans voting against him.
I think the same thing can happen here. The country is pretty fired up. There is a lot of stake. It`s the balance of the Supreme Court. It`s Roe, it`s Obamacare. I think President Trump shouldn`t count his chickens yet.
ALTER: It`s about Alaska and Maine. That`s the thing. People in those two states and people who know people in those two states have to figure out what are the pressure points.
O`DONNELL: Well, Lisa Murkowski in her statement tonight says she is going to consider what the people of Alaska want. And so it`s a question of what does she hear? What does Susan Collins here in Maine.
Ron, when you were on the staff of the Judiciary Committee, did you see senators responding to what is happening back in their states in these matters?
KLAIN: Well, there is no question about it. And one time I was chief counsel Judiciary Committee during the Clarence Thomas hearings. We saw the country explode about the revelation of judge Thomas and Professor Hill and demand the confirmation be slowed down until the testimony go forward and so on and so forth.
So the public has a voice here. It has input. It can buck up the Democratic senators. It can force Collins and Murkowski to explain what they are doing. There is a role here for the public to speak out. And it does have impact in this process.
O`DONNELL: Yes. I was working the Senate when the Thomas hearings came up. And I watched democratic senators over time change their minds. And it wasn`t so much what was happening in the hearing room. It was what they were hearing back in their states in reaction to what was happening in the hearing room.
Ron Klain, Jonathan Alter, thank you for joining us tonight.
Tonight`s LAST WORD is next.
O`DONNELL: After you saw Senator Warren appear live here on this program tonight, she went across the street to the steps of the Supreme Court where she got in her LAST WORD on the night on Supreme Court nominee Brett Kavanaugh.
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WARREN: The road ahead will not be easy. But we won`t back down. We won`t give up. We won`t go back. We will fight for the future of our kids. We will fight for the future of this democracy. And we will fight for the sole of this nation!
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O`DONNELL: Senator Elizabeth Warren gets tonight`s LAST WORD.
Brian Williams has much more on the Supreme Court nomination including reaction from Presidential historians David Marinas and John Meacham. That is coming up in the 11TH HOUR WITH BRIAN WILLIAMS which starts right now.
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