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Trump distracts, legal pressure mounts. TRANSCRIPT: 08/10/2018. The Last Word w Lawrence O'Donnell

Guests: Mark Thompson; Baratune Thurston, Dana Leigh Marks, Evan McMullen, Jonathan Alter

Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: August 10, 2018 Guest: Mark Thompson; Baratune Thurston, Dana Leigh Marks, Evan McMullen, Jonathan Alter

RACHEL MADDOW, MSNBC HOST: So that does it for us tonight. I wish you a good Friday and a good weekend. We will see you again on Monday.

Now it is the time for THE LAST WORD where Ari Melber is in for Lawrence, tonight.

Good evening, Ari.

ARI MELBER, MSNBC HOST: Good evening, Rachel. Thank you so much. Have a great weekend.

MADDOW: Thank you, my friend.

MELBER: Tonight, the legal pressure on Donald Trump, his family and his network of aids, former aids and former fixers looks to be at an all-time high. Bob Mueller`s prosecutors are now ten days into their first trial of a former aide.

Campaign chair, Paul Manafort who watched his case get harder this week as another Trump aide who worked on the campaign, Rick Gates, was confessing to crimes on the stand. Now for all the indictments and evidence and the general ranker of the Trump presidency, this week did mark the first time a former Trump aid ever did confess publically to a crime. Gates telling jurors he committed felonies with Paul Manafort.

That is a fact. That is news. That is legally concerning for Donald Trump and politically concerning as confessions are not a great message heading into the midterms.

But Donald Trump has his own plan for midterm messaging. And while he didn`t know this trial of this campaign trial would be on track for a verdict right heading into Labor Day, which is of course a key time for the midterms, he has long known he has his own plan to try to divert attention towards a different political fight.

In fact, he told a confidant earlier this, he would revive his attacks on the NFL over people who kneel in protest directly leading up to the midterms because Trump believes quote "its return to the headlines will help Republicans win votes.

And there it is. Today Donald Trump re-upping his attacks on NFL players over the kneeling. This is on a Friday heading into the anniversary of course of that Charlottesville white power rally.

We are not going to read the tweet tonight from the President attacking the players in last night`s game because it is not particularly newsworthy and we are not going to show you all the headlines it sparked. You can imagine there were many of them.

The actual developments we are going to show you because that is what Trump is distracting from. They include Mueller pressing for a wider interview with Trump than he`s willing to give which would launch a Supreme Court fight. It includes Mueller putting an associate of Roger Stone in the grand jury box just today. And getting another Roger Stone aid held in contempt today for refusing to testify at all in this probe. It includes the issuance of a new subpoena to an associate of both Stone and Julian Assange, Randy Credico, news that first broke exclusively on MSNBC Thursday night. That`s a lot of subpoenas and interviews around Roger Stone who unlike most current White House aides is actually someone who has worked closely, intimately with Donald Trump for many years.

But those are all developments inside these investigations. When it comes to the criminal trial of Trump campaign chair Paul Manafort, prosecutors are now drawing the first lines in public back to the campaign, the administration and corruption.

Let`s walk-through this one because it is significant and it is new. Just today, a bank executive took the stand in this case to detail a $16 million loan that was provided to Paul Manafort and noting that he got suspiciously fast approval for it by going directly to the CEO, a banker who wanted to serve in the Trump administration and Manafort went ahead and wrote an email pushing that banker for the pivotal job of army secretary.

There are other non-NFL developments dogging Trump tonight as well. This week marks the first time we had a person in Congress was his first congressional endorser indicted on charges of insider trading and lying to the feds.

This special election this week also saw Democrats improve their support by ten points in a district that Donald Trump carried by about 11 in the crucial state of Ohio. If those trends continue, Republicans would hold power in house races where they do hold an 11 point edge or more, which would also look like a probable loss of control in the House of Representatives.

Now right now that Republican is about a point ahead. The race has not officially been called. So while attacking football players is one way to head into this weekend. Let`s also note many Americans taking a different tack and others are doing simply what many people do on sad anniversaries, honoring the people who are no longer with us like Heather Heyer who was killed a year ago at that white supremacy rally. And today her mother, Susan Bro, spoke about accountability for those in politics who encourage hate and violence.


SUSAN BRO, HEATHER HEYER`S MOTHER: I can tell you what David Duke and Richard Spencer and Jason Kessler and I believe Matthew have said, that is the current administration has given them the go ahead, given them a thumb`s up, given them a wink and a nod. That`s their words, not mine.


MELBER: I`m joined tonight to kick off our conversation with Mark , host of "Make It Plain" on Sirius XM radio, Jonathan Alter, columnist for "the Daily Beast" and an MSNBC analyst and a radio host as well, and Baratunde Thurston, author, artist, activist. The book "How To Be Black" relevant here.

And I start with you. There is so much bad news following Donald Trump. There is a play book that we know and some people say he is President, so they will report on the tweet of the attack. Your view of what is important, what we should be focused on when you look at all this going into the weekend.

BARATUNE THURSTON, AUTHOR, HOW TO BE BLACK: I think there is two things. I think one is the reminder when this President needs a distraction, he hits one of two big buttons, to blame immigrants` button or the attack rich, black athletes` button because he know that they work.

The other thing that I think can take away is important the contrast. The people he is attacking are doing a better job at leading than he is. Last week he attack Lebron James. So our supposed leader is throwing little children in jail. Lebron James is putting them in schools.

This week, he attacked NFL players for exercising the first amendment in a constitution when this President on a daily basis likely undermines that constitution by maintaining an ownership stake openly in his businesses. He is revealing himself constantly. So I think the valuable lesson to us is the high contrast that he`s offering, a supposed leader versus real leadership and he`s threatened by the real.

MARK THOMPSON, HOST, MAKE IT PLAN: I would agree. You know, but this is a distraction that comes easy for someone who was in the son or is the son of the KKK. Donald Trump is a racist and a white supremacist and is particularly obsessed with black men. He attacks strong black men. He went after President Obama. He went after Lebron James because of his own inadequacy.

You know, we used the term White supremacy but there is really a projection. The white supremacy is really a manifestation of a sense of inferiority. And so, he feels inferior to these other people who are successful, doing positive things. These men are taking a knee for non- criminals.

Michael Brown, whose anniversary was yesterday, not a criminal. Tamire Rice, not a criminal. Sandra (INAUDIBLE), Jordan Davis, Trayvon Martin, not criminals. But as you have been reporting, as all the legal evidence is pointing to it, he is the one who is a criminal. And we know he is using this to exploit the midterms. That`s his goal. That`s his effort. But also let`s be honest, he could care less himself about the national anthem. The only anthem Donald Trump cares about is the Russian national anthem.

MELBER: Well, and two facts for this, Jonathan. One, the polling of the President`s tweet attack on Lebron James, which again is a kind of a sad 2018 little statistic that we have of these polls. But people overwhelmingly oppose this, 58 percent of Americans saying they oppose what he said. Only 12 percent support. The rest say they didn`t know about it or neither.

So, they accepted a breakthrough, that means there are people who are still conservative. We are still backing Trump and they don`t even claim to like this. And also the New Orleans state defense who then (INAUDIBLE) Jordan was founding, saying hey guy who won the Presidential election, how about we get a statement on the quote "unite the right rally" being held in D.C. this weekend? And a year after the first one in Charlottesville to Baratune`s point, some of these athletes who obviously many of whom are black are very clear about the connection they see on this Friday going into this weekend when someone was killed at a white supremacy event. And here we are back to go back into it all this weekend.

JONATHAN ALTER, MSNBC POLITICAL ANALYST: Well, professional sports, at least football and basketball, are now lined up in Unison against the President of the United States. We have never seen anything like that. These are our heroes. And, so, Trump is taking a real gamble here. I`m not sure that it`s going to work out for him. I`m not sure that those rural voters who did not show up in Ohio on Tuesday night, his base, I`m not sure that if he demogauge more on this they will get off their rumps and go vote.

The people who voted are the people who are disgusted by this. And that`s why that ten point victory he had in 2016 was erased in Ohio. So you know, you passed over, oh, he is doing this for political reasons. Think about that. That is the definition of demagoguery. This is to use race and fear for political reasons.

We know the players are standing up. Will the fans stand up? So I have some friends who are very distinguished anthropologist. They were among the older guys who originated in teach-ins in the 1960s against the Vietnam War. They are trying to organize kneeling ins. They want fans at college football games, young people, to kneel in solidarity with the players when they are in the stands. We will see whether that kind of thing happens. But I think Trump is assuming there will not be push back. And I`m not so sure it will work.

THURSTON: I think it`s sad the smallness of his game for this election for this possible blue wave that`s coming. That the only play he has left is more racism, more division. Because he has turned away any potential moderates who might come to his aid. And it doesn`t have to be that way. Other Presidents haven`t done it this way. But this guy is going for the darker path, for the uglier path. It is just a waste of Presidential power. If he were killing it as President, I would get a tweet about the NFL all day every day as a side time job. But there is real work to do. And you were hired by us, the people. You are paid by us, the people. This is a big job and he`s flaunting and flittering away the real opportunity he has to actually lead. When he is given that opportunity, he goes low every time.

MELBER: And Jonathan, how much of that runs into the collective toll that corruption takes here? Because there are people who may say, well, I never thought Donald Trump was going to drain the swamp. I always thought it was crap. And I`m not going to vote for him or the Republicans. That`s sort of a sitting voting block.

But as we all know, the way midterms and turnout and all these things matter is everyone else. And is there a one, two, three, seven point shift eventually when enough of the corruption stories congeal to say, wow, the thing that he ran against, the swamp, the pay for play, the Clinton foundation, to echo the point Mark was make anything a different context, it was all projection of their own problems.

ALTER: So it is really interesting. I talked to a Democratic candidate in an Ohio district, not the one on Tuesday, a very conservative district. This guy has a chance. And months ago he was telling me it was only one issue in his direct, health care, health care, health care and focusing on people with pre-existing conditions who would lose their protections if the Democrats were not to get control of the house. That`s all they cared about.

When I talked to him last week, he said corruption is coming as an issue. That these people in power are swamp creatures, and this would mean the Democrats have the potential to turn, drain the swamp on its head so that the swamp that needs to be drained now is the Trump swamp. And they have a lot to work with on an almost daily basis. You have this congressman who is insider trading from the south lawn on the White House, caught on camera.

UNIDENTIFIED MALE: Yes. The White House is a crime scene.

ALTER: Right. And then you have the Wilbur Ross, the commerce secretary, destroying "Forbes" magazine, not exactly a liberal wag saying that he was a grifter to the tune of $120 million. So these are, you know, bad actors in this Trump orbit. And I think collectively it`s really going to hurt.

THOMPSON: And we should add, you are reporting here also about Devin Nunes. I mean, that is an example of corruption. They are now - he is on record saying that they are going to try to do all they can to protect him and cover this up. We don`t have to plot. None of us has to plot on behalf of each other to cover up something because we haven`t done anything. We haven`t committed any time. No crime has been committed. I don`t have to cover you up if you have not done anything wrong.

So to me that`s an admission that they know he is in trouble. I think corruption is important to run on. I think it is important to continue to expose. Even if it weren`t a political season. Because even as Rachel just reported, the tampering in the elections is still going on. Donald Trump is the one that is unpatriotic, not these NFL players, not anybody taking the hit. It has nothing to do with the flag or the anthem. They are taking a knee was of injustice, the same injustice that happened to Heather Heyer a year ago. She is, and I have said before, the government lose her of out generation. They will lose over those a white woman killed during the march we summon to Montgomery simply driving people to and from the march.

I met her family and know her family. She lost her life standing up for what`s right. Heather Heyer was doing the same thing. It`s a shame she should be wrong. Every day that Donald Trump dismiss it and creates this false equivalency, both sides do it, it continues to set us back. He is here as a danger. And I don`t expect anything. But you said he`s a small man. He`s small minded. And he has nothing in common with the integrity of these NFL players other than that helmet of a hairdo he wears on his head.

MELBER: As they say in court, ta-da.

THURSTON: Listen. The contradictions are disappointing. You know, we have the White House as a crime scene. I want to remind us as well that the rhetoric that comes from this White House. And indeed this party empower is one of law and order. Law and order. Let`s vilify immigrants who commit less crime than actual because of law and order. Let`s trash athletes because of law and order. Let`s trash the inner city because of law and order. Yet these same are willing to at best look the other way when law and order is being so absolutely undermined by people who have the power to stop it and who themselves are committing it.

MELBER: Right. And that I think that dove tails with the question of what we were discussing about which is, what does corruption look like and what does it look like when Bob Mueller says people are defrauding the United States. That`s what the charges are. They have to proven by this. It is a law.

My special thanks to Mark Thompson, Jonathan Alter and Baratune Thurston for this discussion.

Coming up, are the President`s TV lawyers playing around about this interview with special counsel Mueller? Today, Rudy Giulia and Jay Sekulow filled in for Sean Hannity over the President dropped for tweet bombs on Bob Mueller.

Also some of Americans immigration judges are now in a kind of actual accountability mechanism against Jeff Sessions. We will explain why it matters. Could a judge hold the country`s own top law enforcement official in contempt of court?


MELBER: It is rare for grand jury witnesses to actually be held in contempt because if you get a grand jury subpoena you have to talk. The authorities tell you that. Your lawyer will tell you that if you ask him and the last time a witness even claimed they might defy Bob Mueller`s grand jury subpoena, well, that was Sam Nunberg. It made big news. But he said that once he grasp the consequences of being held in contempt and going to jail, he would talk.

So today`s news is important. It is the first time a federal judge has actually went ahead and found a witness in contempt in the Mueller grand jury. The witness, former Roger Stone aide Andrew Miller who has repeatedly fought his required interview.

Now, to be clear and fair, this does not mean that Miller`s definitely doing something wrong yet. Unlike Sam Nunberg, Miller is not just claiming he will defy the subpoena out of the blue. He is authorizing his lawyers to take this position and use the new contempt ruling in order to file an appeal in court. They say their goal is to get a different judge who they hope will find Mueller`s entire probe is illegitimate.


PAUL KAMENAR, ANDREW MILLER`S ATTORNEY: In order to appeal the judge`s decision, challenging the constitutionally of the special counsel, we have to have a contempt order in order to go to the court of appeals. This case is like to end up (INAUDIBLE).


MELBER: So that`s one thing that happened today. Meanwhile, there is action at Paul Manafort`s trial, but it took a turn to the mysterious. Today was going to be the day Mueller`s prosecutors rested their case. Then the judge did something pretty unusual with no explanation. He halted the trial for hours. Then Mueller`s team called ahead a bank executive who testified that Manafort was trying to sell a job in the Trump administration.

As we just mentioned at the top of the show, this is big. This is the first corruption allegation in the trial that does implicate that future Trump administration, though, there was no claim today that Trump knew about this offer.

Now while that evidence was making its way through federal court, what was Donald Trump`s legal team doing? Were they working on a factual rebuttal to what came out in the Manafort case today or were they talking to legal experts or journalists about the facts? No. They spent three hours co- guest hosting for Sean Hannity, taking live calls and blasting the Mueller probe.


JAY SEKULOW, TRUMP`S ATTORNEY: If you look at the scope and nature of this inquire, the way it started, the corruption at the outset.

RUDY GIULIANI, PRESIDENT TRUMP`S LAWYER: It surely looks like an illegitimate investigation. The President of the United States said this a long time back that it is a witch hunt.


MELBER: Giuliani calling Trump supporters the probe is illegitimate while still claiming he might offer Trump up for a limited interview with this allegedly illegitimate process which doesn`t really make sense.

Now, the wrangling over that interview could reach the Supreme Court. But for that happen, Mueller would have to decide these negotiations are effectively exhausted. And it is time to issue a subpoena, which the White House could then legally appeal. Some legal experts say it is clear that time has come from a prosecutor Harry Litman. It is time to subpoena the President. Mueller has been extraordinarily differential and patient while Trump and his representatives engage and they are scarcely credible gamesmanship. That if from Litman`s band new "Washington Post" piece and he joins me along with former federal prosecutor Joyce Vance, an MSNBC analyst.

Harry, why now?

HARRY LITMAN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Well, I mean, it could have been a few months before. But why now? Because no time like the present. Things are dragging along. It`s quite clear that the whole back and forth doesn`t -- is not really going to end in any kind of fruitful process where Trump really sits down. And so it is the only option for getting answers. And we need answers not just for the criminal probe itself, but really for the public record. We are looking at the possibility of terminating this whole thing and never having heard from the President of the United States about what happened. And I think as a matter of sort of public`s right to know, that`s a terrible prospect.

MELBER: Joyce, we like to chop it up here in good faith debates. If Harry is right, then Mueller is wrong because he clearly has not made this move yet.

LITMAN: Oh, wow.

MELBER: Well, because he hasn`t.

So, Joyce, what is Mueller`s thinking in either trying to actually exhaust negotiations or create a record and a public image, if you will, that shows how far they went to try to do something other than issue the subpoena?

JOYCE VANCE, FORMER FEDERAL PROSECUTOR: Everything that Harry says really makes sense to me, including this need for a public record. You know, no other employee at the justice department during government could get away with avoiding an interview. But there is one problem here, and that`s the department of justice`s policy that says that you can`t indict a sitting President. And so it seems very unlikely to me that the President is formally a target of the Mueller investigation. But he has this quasi target status. There is this thought that perhaps after he leaves the presidency he could be indicted.

And so, I think Mueller will be very reluctant to part company with typical rules that say that you don`t subpoena a target except under exceptional circumstances and he`ll continue this back and forth to try to get a voluntarily interview. It`s also worth noting that everything that we are hearing about back and forth comes from Giuliani.

You know, Mueller is not going out and giving press conferences, so we have to rely on Rudy Giuliani`s narrative here. But if there is, in fact, this back and forth, then Mueller in many ways benefits by the public nature of this narrative. If Giuliani is building a public narrative so people won`t come forth and delusion their representatives on the hill with request for impeachment because they believe the process isn`t fair, well, Mueller similarly benefits from the sunshine effect of the public watching the President trying to dodge an interview that no one else in the public life would be able to dodge.

MELBER: Harry, the other piece is Giuliani claiming this is all some kind of trap. Take a listen.


GIULIANI: I think what we have to get clear is the fact that a lot of people interpret it this way, well, if he`s telling the truth, why wouldn`t he just go in and testify? Hey, welcome to the real world. The fact is he is telling the truth. We are walking him into a possible perjury trap. Not because he isn`t telling the truth, but because somebody else isn`t telling the truth who they would credit, mainly Comey.


MELBER: Harry, are you familiar with the term trap house?

LITMAN: No, go ahead.

MELBER: Well, it can refer to a place where there is contraband or criminal drug activity. Rudy`s argument seems to be that there is sort of a perjury trap house and you shouldn`t let your client walk into it. What is wrong with, in your view, that argument?

LITMAN: Quite a bit. First of all, it`s never been clear what they meant. It`s been a slogan like fake news or drain the swamp by perjury trap. Just yesterday, Giuliani made clear what he meant, including in this interview. He said, look, there are questions like, why did you fire Comey? That is not a perjury trap question. That`s a straightforward question that we need to know. That`s exactly the sort of thing that a prosecutor would be asking.

The things he`s posing as paradigms are exactly the down the middle questions that Mueller and the people have every right to know. A perjury trap, if it means anything, would be some kind of gotcha exercise where the President is caught unawares. You can`t be caught unawares by a question of why did you fire Comey? And we don`t know the answer to that because he`s given seven or eight different ones.

MELBER: Well, he seemed a little caught unaware when Lester Holt asked him it and he admitted to part of the intense standard of obstruction.

LITMAN: Right. Now, is that, in fact, the standard of record? He since has backed off from that. The one thing that isn`t is a perjury trap. That is a legitimate question for investigation. Now he is scared of the question because Mueller knows things that he doesn`t know. But that`s the position of the prosecutor. So he will ask questions. And he could be quote, unquote trapped into saying something false. Not a perjury trap. That`s just standard questions from a prosecutor.

MELBER: Right. Not perjury. Not a perjury trap house, just straightforward questions.

Joyce, finally on Roger Stone, so many of his aids being pulled into this. Do you see a possibility where this is all double checking things and no charges ultimately come, or is any client seeing this many aids brought into the grand jury room that work for him going to be fairly nervous?

VANCE: Anything is possible. But stone is surrounded by a whirlwind of grand jury activity. It looked earlier this week as though in talking with the woman in New York, the so-called Manhattan madam that something interesting happened in that interview and they took her into the grand jury to lock down her testimony, to get her to repeat whatever she told them that was to interesting under oath.

So once the suspects that the only real question were stunned at this point is not, will he be indicted? It is when, will he be indicted?

MELBER: Joyce Vance and Harry Litman, a very illuminating conversation. We benefit from your legal expertise so much. Thank you.

LITMAN: Thank you, Ari.

VANCE: Thank you.

MELBER: Up next, there are some immigration judges that say the DOJ under Sessions is doling out punishments if they don`t deport asylum seekers fast enough. One of those judges who says it`s time to fight back joins us next.


ARI MELBER, MSNBC SHOW HOST: This is an important story on developments in law and the Trump era. There are judges now across the country who are fighting back against the way this administration has cracked down an immigration while also failing to come up with a solution to the family reunification problems it caused. Now, it`s been over two weeks since a federal judge ordered the Trump administration to reunite all the 2,500 migrant children separated from their parents.

Now, the good news is most have been reunited. But 559 remain in government custody and 365 parents of those children have been deported, which is itself an ongoing humanitarian crisis. Now on Thursday, a federal district court judge voiced outrage when discovering that the Trump administration was deporting a mother and daughter while their court hearing was still happening.

And this was a highly unusual move. The judge demanding the plane turn around and bring them back to the U.S. and threatening to hold the Attorney General of the United States, Jeff Sessions in contempt. Something we were discussing in a different context earlier tonight.

Now those two people seeking asylum were basically trying to escape what they call gang violence from El Salvador. And that`s part of a lawsuit that has been filed by the ACLU that challenges the way that Sessions has excluded people who are fleeing gang violence from getting asylum.

Meanwhile, the union that represents 350 immigration judges in our country is pushing back against pressure from the Trump administration to try to speed up these deportations. This is something called the National Association of Immigration Judges, and they did something important. They filed a grievance against Jeff Sessions` DOJ.

This was on Wednesday when it began because it occurred after there was a DOJ replacement of a Philadelphia judge who was delaying the deportation of this young, undocumented immigrant from Guatemala. Now, this judge`s union is basically arguing that The DOJ is overstepping its authority and undermining a key, key concept judicial independence.

I`m pleased to say that I am joined now by Judge Dana Leigh Marks, president emeritus for the National Association of Immigration Judges. She`s practiced immigration law for 41 years in San Francisco. Judge, thank you for making time to walk us through this tonight.

DANA LEIGH MARKS, PRESIDENT EMERITUS, NATIONAL ASSOCIATION OF IMMIGRATION JUDGES: Thank you so much for having me, Ari. It is a complicated issue.

MELBER: It is and one that is important and that you and your colleagues have argued has both a legal due process dimension and a moral dimension. So, for people who are following this and saying what does this mean that judges are kind of pushing back against what Jeff Sessions and the Trump administration are doing, how does that work and what are you trying to achieve?

MARKS: People have to remember that the immigration judges in the United States are administrative judges, which is a distinction that means we work within the Department of Justice. Unlike most judges, that means that we have a boss, Attorney General Sessions. Congress sets the laws, but many of the policies that are implemented are established through the attorney general and directives that he or she makes.

But immigration judges are the trial level judges who decide whether or not someone is actually in the country illegally and if so, whether that person is entitled to some kind of benefit, such as asylum. So, we need a guarantee of judicial independence, of decisional independence so that we can be sure that political pressures are not affecting the way that judges are allowed to carry out their role.

And recently we have felt additional encroachments on our ability to do our job as judges. And that`s what brought us to this very unusual step of choosing to take an individual`s case, a labor union grievance for a sitting immigration judge and for our association to join with this judge and to publically release what the grievance is --

MELBER: Right.

MARKS: -- in order to help highlight how our decisional independence is being encroached upon.

MELBER: Just to pause on that because you are running through a lot of important stuff. Is it fair to say that your organization has taken this, as you put it, unusual step, because of your view of how extreme the Jeff Sessions encroachment has been on what would otherwise be your authority to handle these cases?

MARKS: That is accurate. But I want to make it clear as well that we are not a partisan organization. We are a professional association. And we have had criticisms of encroachment on our independence in different ways, smaller ways by several administrations, both Democratic and Republican. And we have pushed back, but not quite as dramatically as we`re doing now.

MELBER: Do you believe or have evidence to support the belief that the administration doesn`t really want to solve the remaining cases that part of the problem is that while they have been ordered to fix the problem they created, there is still some lack of desire or commitment to reuniting all the families?

MARKS: The evidence that might exist to support that argument is the fact that since the Department of Homeland Security has been created about 15 years ago, the budget for the Department of Homeland Security rose by 400 percent and yet the budget for the immigration court was only increased by 72 percent. That really becomes dramatic when you realize that we were under resourced at the beginning.

So, it has allowed a tremendous backlog of over 730,000 cases pending before a core of just 350 immigration judges, which is an overwhelming and inappropriate amount of cases for any judge to be expected to handle in an effective and in an efficient way. That could be, if one wants to be cynical, planned or it could just be inadvertence. One of the reasons why we have argued that we should not be in the Department of Justice is that the primary goal and role of the Department of Justice is law enforcement.

And it`s a premier law enforcement agency that we`re very proud of, but that said, that`s not necessarily the place for a neutral immigration tribunal, which is what we are. So we feel that our mission no longer fits within the context of the Department of Justice and we have urged Congress to take us out of the Department of Justice and make us a separate organization that doesn`t have a law enforcement boss at its head.

MELBER: You have given us a primer here on some of the most important issues including the separation of powers, the role of these adjudications within the Justice Department and the larger question that I think America continues to debate, which is, is immigration really as simple as building a wall and deporting people or is this much larger process that requires both due process and humanity. And so Judge Marks, I appreciate you spending time with us tonight.

MARKS: Thank you so much, Ari.

MELBER: Thank you.

MARKS: I appreciate you allowing me.

MELBER: Of course. Now, coming up, we turn to some politics, including Republicans now saying to save the GOP you have to actually vote against Republicans in the House -- very interesting. We`ll explain. That`s next.


MELBER: Several of our experts were explaining earlier this hour, President Trump is deliberately pivoting back to a culture war by attacking NFL players who take a knee for the national anthem. And we know from a report back in May that Trump has told close associates he believes the NFL protests are, "a winning, strong issue for him that give voters a reason to support his party in the midterms.

So that`s one view, but there is a very, very prominent Republican who thinks this whole approach could actually push potential Republican voters towards the Democrats. And that is the former chief speech writer for President George Bush arguing today, "The only way to save the GOP is to defeat it." And he calls in his fellow Republicans to use this midterm election to back Democrats in House races even if they don`t agree with Democrats and everything.

And this speech writer, Michael Gerson, says this is bigger than any one policy because if Republicans retain control of the House in November, Trump will have proved the electoral value of racial and ethnic stereotyping and that will make things much worse than they even are today. He argues, "The GOP will be fully committed to a 2020 campaign conducted in the spirit of George Wallace, a campaign of racial division, urban rural division, religious division, and party division that metastasizes into mutual contempt.

That`s a lot. And notice that Gerson, the Republican, is arguing real politic here. He`s not appealing to everyone`s better angels. He`s simply stating that ethical and moral Republican voters now in this mid-term have a role to play in providing some kind of public electoral punishment for race baiting. And then only that can provide a check on their party as it itself chooses their strategy going forward.

The reference to George Wallace is of course as stark as it is depressing. Gerson, the Republican acknowledging that in his view, the current GOP could actually fully become a party of "segregation" because that of course is what Wallace formally stood for and ran on. Rarely does a prominent member of the Republican Party go this far, warning his own party`s future could be headed for the past in every sense of the word.

It`s an important part of this discussion and our panel joins me on all the implications, next.


MELBER: Today, former President George W. Bush`s top speech writer penned an op-ed in the "Washington Post" that urges Republicans to do something unusual, vote for Democrats to take the House in November as the only remaining way to actually save the Republican Party from itself. That provocative headline is something.

But Gerson is not alone. There are actually, of course, many former top ranking GOP officials who`ve come out against their own party and urged voters to support Democrats in November. Many of them you even see on your T.V. screens.

Joining me now is Evan McMullen, a former presidential independent candidate and CIA operative, joining us live from Iowa and Jonathan Alter back with us. Evan, you are someone who tried in your own way to take on the Trump drift and you lost. And a lot of other people lost. How do you view what people like Gerson and other Republican leaders are doing and is it the right way to do it?

EVAN MCMULLEN, FORMER CIA OPERATIVE: Yes. Well, look, I think a lot of people are saying a similar version of this, whether it`s Steve Schmidt or Gerson or others. Look, I am also of the opinion that if we have a party in control of the House of Representatives, let`s take just that one chamber for a moment that will not fulfill its constitutional responsibility to exercise oversight and constraint of the executive branch.

And even goes beyond that and uses its power in that chamber to erode the rule of law and to protect the president that is clearly corrupt and has encouraged a foreign adversary to intervene in our electoral process. I mean, if a party in control of the House chamber can`t even oppose that, well, then yes, they don`t deserve to be in control of the chamber. And so we need to make a change there.

I do hope though that a handful of moderate Republicans will survive this. Why? Because I don`t think it is right for us in the two-party system, which it is for now, I don`t think it is right for us to give up in either party. But I do think that regardless of whether the Republicans stay in control of the House or lose the House, we are looking at a Republican party that will overtime now shrink and become more extreme and more loyal to Donald Trump as long as he`s in power.

And once he goes, I still think the party is headed down, has gone further -- far enough down the path of Trumpism and sort of white nationalism and the like that I don`t expect to come back soon. And I do believe that the only way for it to come back is to suffer the consequences of that movement. But, I do hope still and you know, that there are some moderate voices that remained to hopefully may be a decade down the road or a decade and a half turn the party around.

MELBER: Yes. And as you know Jonathan, 15 years is a good amount of time to wait for progress in politics. All the pressure aside though, you know, for people who are looking at this, do the Michael Gerson`s of the world hit it right? Is it more powerful to simply leave the party? Do you need a challenge to Trump from within the party or do you have people like Paul Ryan who is showing where they are headed and that tells Republican voters its Trump`s party now?

JONATHAN ALTER, COLUMNIST, THE DAILY BEAST: Well, they can say that but if there is a thumping this fall then there is going to be a reckoning, you know, in late November, and why not be apart of a movement to resist the hijacking of their party. You know, we talked a lot about how democracy, our Democratic tradition, our institutions are on the line in November.

It`s obviously if the Republicans hold the House, Trump will be so embolden that what we`re seeing so far will look like patty cake in terms of his assault on our institutions. But it`s also kind of game on for the future of the Republican Party because he will complete his hijacking, complete his hostile take over of that party.

And remember this is the party of Lincoln. This is the party of the 13th, 14th and 15th amendments, and they are turning from the party that freed the slaves to the party of white nationalism. There is still a chance to prevent it from happening, but that has to start now.

MELBER: And Evan --

ALTER: If you are serious Republican, you have to vote Democratic this fall.

MELBER: And so Evan, being out in Iowa and having been on the Hudson (ph) yourself, how much of this conversation is the grass root conversation or is this again one of those times as we have so often in politics, where the national or "elite conversation" is different from people thinking about jobs and healthcare on the ground?

MCMULLEN: Well, look, people are thinking about pocketbook issues and economic issues and, you know, they`re focused on their families and getting their kids through school and to school and all of that. That`s true. But I do wanted to comment on something that Jonathan said.

You know, I don`t look at this, the Republican Party, I don`t think it is not quite fair to say that this is the Republican or this is the party of Lincoln. It was once was the party of Lincoln.

ALTER: Yes, it was once.

MCMULLEN: But, yes, once was. And I know, Jonathan and I have had many discussions. I don`t think he disagrees with the sentiment necessarily but, you know, the party was the party of Lincoln early on. But then ultimately the party decided in the last century to pursue what was called the "Southern Strategy" which by its own explicit definition was a strategy to win over remaining southern racist, and I say remaining because not everyone in the south is a racist obviously.

But the party, the Republican Party wanted to win over the votes of the remaining racist in the south as the Democrats embrace the civil rights movement. And the Republicans wanted to do it in a way that would not turn off moderate Republicans, traditional Republicans, Lincolnian Republicans. And so that`s what they did. They pursued the strategy and they brought in all these racists and the party has not been the same ever since.

And we, the Republican Party, I`ll say has been on a path since then that has led to where we are now. And so where I differs with maybe the way Jonathan explained it a little bit was that this was not a hijacking by Donald Trump. The party has been on this path for a while and it is going to take a while to get it back.

ALTER: Let`s just look at one issue, immigration. So until very recently, the Republican Party for all the racism that you rightly point to in the not so distant past, they were pretty good on immigration. Both Bush`s were for comprehensive immigration reform. They were not a white nationalist party even five years ago. So, you know, this is something that Donald Trump has done a lot to accelerate.

MELBER: Evan and Jonathan, thank you both. Tonight`s last word is up next.


MELBER: If it is 2018, our late night comedic friends have plenty to work with and here is what they are up to for the "Last Word."


UNIDENTIFIED MALE: I am sure that Rudy Giuliani spends big chunks of his days chain smoking cigarettes, white knuckling it, just hoping that another tweet doesn`t show up.

STEPHEN COLBERT, LATE NIGHT SHOW HOST: Well of course, he`s white knuckling it. If his knuckles were any other color Trump wouldn`t have hired him.

Shortly after it aired, Giuliani tweeted, "There is a moron on Fox claiming I chain smoke cigarettes worrying about the president`s tweets. Don`t smoke cigarettes." Sir, you had me at there is a moron on Fox.


MELBER: And that is tonight`s "Last Word." Now, if you are looking for me, you can always catch us at 6:00 p.m. eastern on "The Beat." On Monday I`ll be joined by Richard Paynor, Malcolm Nance and former mafia prosecutor Cathy Fleming. The "11th Hour" with Brian Williams starts right now.


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