Kavanaugh accuser seeks FBI investigation. TRANSCRIPT: 09/19/2018. The Rachel Maddow Show

Guests: Mazie Hirono, Michael Biesecker

Show: THE RACHEL MADDOW SHOW Date: September 19, 2018 Guest: Mazie Hirono, Michael Biesecker

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend.

And thanks to you at home for joining us this hour. Very happy to have you with us.

So, Ronald Reagan at the very end of his presidency, he lost one. Everybody thought he was going to put Anthony Kennedy on the Supreme Court. Kennedy had been to the White House. He reportedly believed himself that he had been picked for the court.

But then at the very last minute, conservative staffers in the Reagan White House intervened and said no, no. We have a different guy we would prefer for the seat. Better choice. Somebody we like more. And so this man, who you see here with Reagan, Douglas Ginsburg, he jumped to the head of the line and he got the nomination.

And then it all fell apart. Reagan didn`t get him on to the court. And immediately, everybody started to try -- everybody started trying to figure out who they were going to blame in the Reagan White House for this political disaster.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: President Reagan today suffered his second defeat in trying to fill a seat on the U.S. Supreme Court when the man he nominated only nine days ago, Douglas Ginsburg, asked that his name be withdrawn. It was an embarrassing admission of marijuana use that doomed Ginsburg. White House officials knew he could never win confirmation.

The front-runner to become the new nominee is considered to be Judge Anthony Kennedy of California. With more on the Ginsburg withdrawal, NBC News White House correspondent Robin Lloyd.

ROBIN LLOYD, NBC NEWS REPORTER: It all happened quickly for Douglas Ginsburg, less than 48 hours from the time he first disclosed he had smoked marijuana, he was at the White House calling it quits.

DOUGLAS GINSBURG, FORMER SUPREME COURT NOMINEE: I today have asked Ronald Reagan not to forward my nomination to the Supreme Court.

LLOYD: In a recent statement, the president accepted Ginsburg`s decision with regret, and commended him for his selflessness and clear thinking.

Late this afternoon, Attorney General Ed Meese, who had pushed hard for the Ginsburg nomination, was dodging any blame.

ED MEESE, ATTORNEY GENERAL: Nobody had a candidate. I didn`t have one. Howard Baker didn`t have one. This is something where we had a list of candidates presented to the president. Together, we provided the information to him. And he ultimately made the selection.

LLOYD: Nobody in the White House is blaming anyone for the Ginsburg fiasco, but privately, many are grumbling that the Justice Department didn`t do its homework. In the preliminary FBI investigation, Ginsburg was never asked if he had ever used drugs, only if he ever abused them or had an addiction problem.

Former White House aide David Gergen.

DAVID GERGEN, FORMER WHITE HOUSE AIDE: In this case, the president must look to his Justice Department and say, what happened, fellows? Why didn`t you do this right?

LLOYD: Senior White House aides say the next nominee is likely to be California Federal Appeals Court Judge Anthony Kennedy, a moderate conservative. Kennedy had been the choice of chief of staff Howard Baker, who felt he would be easier to confirm than Ginsburg.

White House aides hope to announce a new nominee by early next week. They say there will be a preliminary FBI check done before anyone is nominated and at this time the candidate will be asked if he ever used drugs.

Robin Lloyd, NBC News, at the White House.

(END VIDEO CLIP)

MADDOW: So, that was the Saturday night newscast on NBC News November 7, 1987, the day that Supreme Court nominee Douglas Ginsburg had to withdraw from consideration as a Supreme Court nominee.

Now, as I mentioned before, they picked Ginsburg -- before they picked Ginsburg for that seat on the court, they had previously been thinking about nominating a judge named Anthony Kennedy instead. By the next day, though, after this newscast about Ginsburg withdrawing, on November 8th, by then we knew that Anthony Kennedy was already back at the White House. By Sunday, that weekend, Anthony Kennedy was at the White House, being subjected to a three-hour long interview by a whole panel of senior officials, including the attorney general and White House counsel and Republican leader in the Senate.

We know that. We know that Kennedy was at the White House being interviewed the day after Ginsburg withdrew because of notes filed by Reagan`s White House counsel, A.B. Culvahouse, which you can now get from the Ronald Reagan presidential library. So, the timeline here was on Saturday, Ginsburg dropped out. On Sunday, the very next day, according to Culvahouse`s notes, quote, three-hour interview of Judge Kennedy at the White House. Quote, the interview focused solely on personal background and integrity issues. All conceivable, no holds barred questions were asked.

So, that was Sunday. All conceivable no holds barred questions being asked. Then on Monday and Tuesday, quote, in excess of 10 hours of FBI interviews of Judge Kennedy.

So, they were not going to let the Douglas Ginsburg mistake happen again. Apparently, the FBI background check on Douglas Ginsburg had asked him if he had ever had a drug problem, but it had never asked him if he had ever done drugs.

The interview questions for Kennedy we now know that left no such wiggle room. These are some of the questions. Personal background, subsection one, childhood through high school.

Did you ever use alcohol? If so, how old were you? How often? At parties? Alone? Did you ever use drugs?

How about glue sniffing? Specifically. Did you ever use your parents` prescription drugs? Did you attend parties where drugs were used?

And that typo there was actually in the letters -- sorry, the notes from Culvahouse. That`s -- they misspelled parties.

And then later on in their questioning, they asked again from when Kennedy is in college, all the same questions about alcohol, but the drug questions, they change a little bit. Quote, in college, did you ever use drugs? Once again, glue sniffing? Also marijuana, cocaine, et cetera. Did you attend parties, again, misspelled, where drugs were used?

Then they asked Kennedy about law school. Apparently by the time they got him to law school they thought glue sniffing would no longer be an option. But for his time in law school, they again asked him, did you ever use drugs? If so, marijuana, cocaine, et cetera, how often? Did you attend parties where drugs were used?

When Ronald Reagan`s Supreme Court nominee Douglas Ginsburg had flamed out right before Kennedy, it was a big embarrassment for Reagan White House. It made the cover of "Newsweek" magazine, right? It was a big political failure, also a big embarrassment for the White House and the president.

They decided they would blame the FBI and blame the Justice Department for not having adequately explored all elements of Douglas Ginsburg`s background before that nomination was announced. And when they replaced Douglas Ginsburg with a new nominee, with Anthony Kennedy, they made sure there would be no similar embarrassing surprises that arose out of Kennedy`s background. The questions got very, very, very detailed.

So, ultimately, Anthony Kennedy gets confirmed. That was Reagan`s last nominee. Then, George H.W. Bush was elected to be the next president. First nominee he put on the Supreme Court was David Suitor, who was confirmed without much controversy at the time. Then in 1991, President Bush nominated Clarence Thomas.

And so by the time Thomas is nominated -- by that point there`s a well- established expectation that the FBI has to be pretty freaking thorough when it comes to background checks for Supreme Court nominees. We`re not going to have another Douglas Ginsburg situation here. All right?

I mean, what the FBI does with these nominees is not a criminal investigation, like they would do if they were planning to potentially prosecute someone. It`s just a review, a very comprehensive review of every little thing in the life history of that nominee, to see if there`s any derogatory information that might reflect badly on the character or experience of this nominee. And honestly, remembering that Douglas Ginsburg fiasco, the background check for nominees is also supposed to turn up information that might adversely affect the prospects of confirming that nominee to the court.

That`s why the FBI background check on a potential nominee is handed over to the White House, so the White House can then make a decision, based in part on that background check, whether or not they should go ahead and nominate that person for the court. So, when Clarence Thomas was nominated by President George H.W. Bush in 1991, his former assistant, a lawyer named Anita Hill, notified the Senate Judiciary Committee who was considering his nomination that when she worked for Judge Thomas, he had sexually harassed her.

Now, whether or not that would be considered a crime, whether or not that was considered to be within the statute of limitations for any conceivable crime related to those charges, that wasn`t the point. The allegation was, instead, relevant as a factor in his background check. It was relevant to the assessment of Judge Thomas as a potential Supreme Court nominee.

And when the judiciary committee received that information from Anita Hill, that information got sent to the FBI. The Judiciary Committee sent that information to the White House on September 23rd, 1991. That same day, September 23rd, the White House counsel for President Bush, a man named C. Boyden Gray, who was Papi Bush`s lawyer for all four years that Papi Bush was president, C. Boyden Gray that same day asked the FBI to reopen its background investigation of Judge Clarence Thomas to look into this new sexual harassment allegation made by Professor Hill.

That moment, Judiciary Committee, get the information from Anita Hill, forward it to the White House. That same day, the White House tells the FBI, hey, look into this.

That was not the stop the presses moment in the Anita Hill/Clarence Thomas controversy. There was not any big fight about this. I mean, the White House learned there were new allegations, derogatory information about Clarence Thomas. Since the FBI was in charge of looking into the nominee and documenting potential derogatory information about him, the White House, naturally, asked the FBI to look into this new information, too.

We actually spoke with C. Boyden Gray today about that moment in the Clarence Thomas nomination process. Mr. Gray confirmed for us today this basic timeline about how this went down, basically confirmed the understanding that we have from looking at the historical record that this was -- this part of it just wasn`t a pivotal moment in this controversy. The FBI did reopen its background investigation of Clarence Thomas to add this matter when the White House asked them to.

The FBI, when they received this request from the White House, they went out and interviewed Judge Thomas about it. They interviewed Anita Hill about it. C. Boyden Gray told us by phone today, quote, what they interviewed Anita Hill about was the basic facts.

I mean, the FBI inquiry, such as it was, was very basic, very quick. If there was any controversy about it at all, it was that it was too cursory. It was too unimportant.

The very same day that White House counsel C. Boyden Gray asked the FBI to go look into this allegation about Judge Thomas, that exact same day, September 23rd, is when the FBI conducted their interview with Anita Hill on that issue. By two days later, by September 25th, they were done.

They didn`t produce a conclusive report that even tried to definitively assert whether or not the sexual harassment had, in fact, happened. They just put together this very basic report. Basically, yes, we talked to him. Yes, we talked to her. This is what they said. That was kind of it.

The FBI gave that info back to the White House. The White House gave it back to the committee. Most senators didn`t even know that that had happened. Most senators were not terribly moved by the addition of -- by this addition of the body of information they had to work with when it came to Clarence Thomas if they knew about it at all.

Thomas` confirmation hearings by this point were done. Two days after the FBI handed over its relatively cursory report on these allegations, the committee voted on Clarence Thomas` nomination, they voted 7-7. So, that meant his nomination was headed to the floor with an uncertain recommendation.

What actually broke this story open -- the whole reason any of us even know about these allegations and the controversy that ensued is because of -- nothing to do with the FBI. It has to do with Nina Totenberg. Nina Totenberg, legendary Supreme Court reporter, today, and frankly for your whole life. She had been the one back in 1987 who broke the news at NPR that Douglas Ginsburg had smoked pot and she had witnesses who attested to that. She`s the one who blew up the Douglas Ginsburg nomination.

Nina Totenberg was also the one four years later, the fall of 1991, who reported that Professor Anita Hill made very serious detailed allegations against Judge Clarence Thomas and whether or not most senators even knew about those allegations, the committee had that information and the FBI had even questioned people about those allegations at the White House`s request. And so, the White House knew about it, too.

When Nina Totenberg broke the story, that`s when the story truly broke for the country. That`s when Anita Hill`s allegations came to light in the press. And before the week was up, the committee had decided OK, I guess we better reopen the confirmation process for Clarence Thomas, we better take public sworn testimony from both Anita Hill and Clarence Thomas. And that hearing, of course, is still seen today as one of the worst examples of how not to treat a person who is coming forward with serious sexual harassment allegations.

But for all of the controversy, all of the drama, all of the cultural significance and pain and precedent of that unbelievably controversial Supreme Court nomination and that process, the idea that the FBI would take a look, the FBI would interview the principals, maybe talk to some other witnesses once that allegation came to light, that was an absolutely mundane part of the process. Of course, the FBI had to look into that, right? They had done a background check on this nominee.

Again, a background check is not a criminal investigation. A background check is to find out everything you can, right, about a nominee, see if there`s any allegations outstanding out there about a nominee that the White House ought to know about when putting this person forward, that the Senate might need to know about when considering this person as a potential Supreme Court justice, right?

When there`s a new allegation to add to the universe of information about this nominee, the background check should clearly cover that new allegation, too. That was not a controversial part of the Clarence Thomas/Anita Hill drama. Again, controversy over the FBI investigation there was that it was too quick, too cursory, too mundane a part of the process.

But for some reason with this nomination of Brett Kavanaugh to fill Anthony Kennedy`s now vacated seat on the court, Republicans in the Senate and apparently the White House as well, have decided they`re going to fight tooth and nail to stop that very mundane process from happening this time. I mean, of course, this allegation against Brett Kavanaugh is going to be controversial.

This Supreme Court nomination was controversial even before we got to this allegation against him. So, you know, of course, with an allegation like this, he is being accused of attempted rape when he was 17 years old. And with an allegation of this nature at a time like this, with stakes this high, of course, you expect there to be drama and chest pounding and self- serving arguments and theatrics and all the rest of it.

But fighting to make sure the FBI doesn`t look into this as part of his background check is a strange thing to fight for. Orrin Hatch was on the Judiciary Committee back at the time of the Clarence Thomas/Anita Hill controversy. He has gone so far as to say, quote, the FBI does not do investigations like this. That is exactly wrong. That is 100 percent completely wrong.

I mean, here is Senator Hatch himself in 1991 in the Clarence Thomas/Anita Hill hearings, expressing his delight, his satisfaction that the FBI was investigating those claims as part of their background check on Clarence Thomas. They immediately ordered this FBI investigation, which was a very right thing to do. It`s the appropriate thing to do.

Not just right, very right, right? Which is why it was done then. So, when Orrin Hatch today says the FBI doesn`t do investigations like this, then honestly, what was he praising back in 1991? What was he so excited about then if the FBI doesn`t actually do this?

Being a hypocrite, having a partisan double standard, I understand that is like breathing in politics these days. I get it, but flat out asserting, you know, this is not done. It would be crazy. It would be a departure from precedent to have the FBI investigate something like this, when these guys, themselves, have been through this process before. It just strikes me as odd. It`s just a weird place to have a sticking point.

This is not a normal kind of fight. Republican Senator Chuck Grassley who now runs the judicial committee -- he was there on the committee for the FBI reopening its background check process to look into the Anita Hill allegations against Clarence Thomas back in the day. He was there for that. He saw that happen. He knows it happened.

He didn`t have any problem with that process. Nobody had any problem with that process. It was a mundane part of how this sort of thing is handled. But now, Senator Grassley insists that it can`t happen here. It can`t happen here with this allegation against Brett Kavanaugh.

Here`s Senator Grassley today. Quote: Committee investigators are following up on the leads from Dr. Ford`s allegations and news stories. No other outside, all caps, outside investigation is necessary for the committee to do its investigation.

Yes, but why not have the FBI look into it, since that is what they do for Supreme Court nominees and all other nominees for which they do background checks? Why are you trying so hard to stop the FBI from looking at this, which would again be the normal process here? What`s the problem of them looking into it? This is also perhaps a good point to remember that when Senator Grassley talks about how he only wants his staff to look into these things instead of anybody outside, instead of the FBI -- there`s no need for anybody else other than his staff to look into this.

One of Chairman Grassley`s staff members who works with him on this committee, on judicial nominations specifically is named Barbara Ledeen. If the name Barbara Ledeen is familiar to you in the context of Brett Kavanaugh`s nomination, you might remember from his confirmation hearings that controversy over whether or not Brett Kavanaugh ever received documents when he worked in the Bush White House that had been stolen from Senate Democrats.

You might remember in that controversy, there was a sort of smoking gun piece of evidence produced during the confirmation hearings, which showed that Brett Kavanaugh had, in fact, received documents stolen from Democrats while he worked in the Bush White House, and he had to have known they were stolen, despite his assertions to the contrary under oath, in part because of what we could see in the document, which was sent to him and which Brett Kavanaugh forwarded from his White House e-mail account in 2003.

This is the document where the subject line was literally, quote, spying. And the first line was, quote, I have a friend who is a mole for us. That e-mail goes on to contain a bunch of information that was stolen from Democratic senators.

The person who authored that e-mail, which Brett Kavanaugh forwarded as a very interesting e-mail, the person who wrote that e-mail was Barbara Ledeen, the same person who now works as a staffer for Chuck Grassley on the Judiciary Committee, which is considering the nomination of Brett Kavanaugh to be a Supreme Court justice. So, when Chuck Grassley says now, listen it`s very important that the FBI not look into this, my staff will handle it, don`t worry. I`ve got all the best people on this. Nobody else other than my staff needs to look at it.

One of the people who works for him on that committee on judicial nominations is the same person who had the mole who sent Brett Kavanaugh the spying information, right? Which became a matter of serious contention in his confirmation hearing in an alternate universe that might ultimately have somebody like Brett Kavanaugh prosecuted for perjury or potentially impeached from the judgeship he has got now.

We actually asked the committee today whether Chuck Grassley has Barbara Ledeen herself -- what did he say? Quote: Following up on the leads from Dr. Ford`s allegations. The committee told us that, no, Barbara Ledeen is not personally assigned to be one of these investigators into Kavanaugh`s - - in to this allegation against Kavanaugh but the committee would also not tell us who any of the investigators are.

So, nobody knows why this is the hang-up. Again, the FBI looking into new, alleged derogatory information about a nominee, that`s the bread and butter of what the FBI does with background checks on nominees. Stopping the FBI from looking into this is a big break from precedent and nobody knows why the Republicans are doing it.

As of it tonight it remains unclear as to whether or not Professor Christine Blasey Ford will testify in front of the Judiciary Committee on Monday or any other time since the Republicans on the committee, on the White House, seem to be digging in their heels and insisting there can be no FBI investigation of her claims despite the fact that that would be standard practice for an issue like this.

When it comes to predicting what`s going to happen here, we`ve got these two very interesting things playing out, side by side, neither of which you would expect, right? But both of which are now happening. One hand we`re still waiting for some sort of credible explanation from Republicans and the White House as to why this case is so special, why they are so invested in making sure that the FBI doesn`t look into this, right?

The argument that this isn`t what the FBI does is factually incorrect. That`s absolutely not true. That can`t be the reason. If that`s not the reason, then what is the reason that they`re so desperate to not have the FBI look at this?

So that`s happening. And then parallel to that, when it comes to assessing the credibility of this accusation, we are now in this remarkable situation where the woman who brought forth this allegation, she is begging for FBI scrutiny of her claims. She`s made a claim against Judge Kavanaugh.

Judge Kavanaugh supporters do not want any law enforcement agency looking into it. She on the other hand is begging for the nation`s premier law enforcement agency to look into it. She`s not only inviting scrutiny of her claims, she`s doing everything she can to try to get independent federal law scrutiny of her claims.

And I don`t know anything more about her claims other than what`s been reported in the press. But if you were making something up, if you were going to tell a high-stakes lie because you wanted to take somebody out, for whatever reason, would you beg the FBI to look into it? I mean, it`s not a crime to lie to "The Washington Post". It`s not a crime to tell a lie in a letter to your member of Congress. It is definitely a crime to lie to the FBI. It`s a serious crime, a crime that people go to prison for.

Why would you ask for FBI scrutiny if you had any doubt about your own story?

And if Republicans in the Senate, and if the White House has no doubt whatsoever and Judge Kavanaugh`s denials of this allegation, why would they worry about the FBI looking into it? Apparently, there is a memorandum of understanding between the White House and the Justice Department, which governs the rules by which these background check arrangements are made when it comes to White House nominees and the FBI. We`re trying to get ahold of that memorandum of understanding. As of yet, we don`t have it, but we think we probably get it at some point soon.

In the absence of actually seeing that written memorandum about how these things go, though, what we understand is that it has to be a request from the White House to the FBI if the FBI is going to look into this matter. For whatever reason, the White House is refusing to give that directive to the FBI. I mean, the White House should be governed by precedent on this, right? There`s no reason for them to completely depart from precedent and refuse to give that directive to the FBI. That`s apparently what they`re trying to hold on to without ever explaining themselves about it.

As to who else might be able to investigate this matter, well, it was reported today that when Senator Dianne Feinstein was first considering what to do with this allegation that she received from her constituent in California, she inquired whether or not the committee, the Judiciary Committee, could hire an outside, independent counsel to look at this allegation, to interview witnesses, interview the principals, look into it, so senators would have some sort of factual investigative basis to proceed if they wanted to hold a hearing on this issue.

Senator Feinstein was reportedly told that there is a process for arranging something like that but it required to go through the rules committee, the Senate and it would require sign-off from multiple Republicans in the Senate. Feinstein decided that kind of a process would be too risky of preserving the anonymity of her constituent who at that point didn`t want her name to be used.

But now, Professor Christine Blasey-Ford has allowed her name to be used. So could that process of obtaining some sort of outside investigation, some sort of outside counsel be put in place now? If the White House and Republicans in the Senate absolutely refuse to let the FBI look into this, is there a way that somebody else could? That`s next.

(COMMERCIAL BREAK)

MADDOW: "The Wall Street Journal" reports today that when Senator Dianne Feinstein received a letter from a California constituent expressing a desire to stay anonymous, but also conveying an allegation of a serious attempted rape, an allegation that Supreme Court nominee Brett Kavanaugh had attempted to rape this woman when he was a 17-year-old in high school. Dianne Feinstein tried to figure out how she could have those allegations looked into, how she could have them investigated while still protecting this woman`s desire to keep her name confidential.

According to "The Wall Street Journal," quote, once they received the letter containing the allegation against Kavanaugh, Senator Feinstein staffers approached the Senate Ethics Committee to inquiry about whether the Judiciary Committee could hire an independent, outside counsel to evaluate the allegations. They were told the rules committee would have to approve such a request and, quote, the Republican chairman of the rules committee and the Republican chairman of the judiciary committee would both have to sign off on the request. That was an action Senator Feinstein staffers determined would have violated Dr. Ford`s desire to remain anonymous.

So, that`s why Senator Feinstein didn`t go that route, because she couldn`t have pursued that while preserving her constituent`s desire for anonymity. Well, now, her constituent is no longer anonymous. White House and Republicans in the Senate have been adamant for reasons that are not clear, that they will not allow the FBI to investigate this allegation as part of Brett Kavanaugh`s background check as a nominee, even though that would be standard procedure in a case like this.

But if they won`t let the FBI look into this, for whatever reason -- may they just hate the FBI now so they don`t want the FBI doing anything. If they won`t let the FBI do it, well, how about anybody else? How about this other path? What about having an independent, outside counsel look into it instead, if the Republicans and the White House are so scared of the prospect of the FBI doing it?

Joining us now is Senator Maize Hirono of Hawaii. She is a member of the Senate Judiciary Committee. She has supported the idea that the FBI should investigate this matter.

Senator Hirono, I really appreciate your time tonight. Thank you for being here.

SEN. MAIZE HIRONO (D), HAWAII: Certainly. Good evening.

MADDOW: Can you give us your sense of state of play right now where negotiations stand, how you understand your committee is going to proceed?

HIRONO: There are no negotiations. As Chuck Grassley and the committee basically going forward and what I can consider a seat of the pants kind of approach. So you laid out really clearly, Rachel, why the FBI investigation should occur.

And the reason they don`t want this to occur or anything like this to happen is anything that gets in the way of fast-tracking Judge Kavanaugh`s assent to the Supreme Court is not where the Republicans are. They need to get him on the court.

It`s lickety-split really before the October term begins. There`s some pretty cases coming before the Supreme Court. They need Judge Kavanaugh`s fifth vote. They don`t want any 4-4 ties anymore. That is the impetus.

MADDOW: When -- in the precedent that we all see here, which was in 1991 with new allegations raised during the confirmation process about Judge Clarence Thomas, the FBI was directed by the White House that they should look into that as part of their background check. The criticism of that FBI investigation at the time, if anything, was that it was too cursory, it was too quick. It took them all of 2 1/2 days to complete their assessment there.

Given that precedent, given how quickly the FBI looked into it and came up with their report on that matter back then, is there an expectation that the FBI would take a substantial amount of time here, the kind of delay that you`re talking about here? Do we have any sense about what the extent of their investigation would be if they looked into it?

HIRONO: I want their investigation to be thorough. There are many more eyes looking what the FBI is doing. The kind of cursory investigation they did regarding Anita Hill`s investigations would not be deemed acceptable.

And, of course, Democrats would say, what is this, some kind of whitewash? If you`re going to do an investigation, do your jobs.

So there is an expectation that they will do their jobs in the appropriate way. But yet again, this is not something that the Republicans want to contemplate at all. They are in a rush to get this man on the court. Why? Because for one thing, the president is an unindicted co-conspirator and he would like somebody on the court who he thinks will protect him from criminal and civil proceedings while he is there, sitting as president. That`s a major incentive, I`d say.

MADDOW: Senator, "The Wall Street Journal" has reported that one of the things that Senator Feinstein looked into when she first got this letter from Dr. Blasey Ford was the prospect of calling in some sort of outside investigative counsel to look at the allegation, to see how serious the allegation is, to see if there`s corroboration for it, and to see as a factual matter, senators might look into assessing the credibility of this allegation and the denial from Judge Kavanaugh.

Senator Feinstein elected not to go that route, not to pursue that. But I wonder, given how things are going, if you and other Democrats on the committee now are thinking about potentially trying to engage some sort of independent investigator to look into this matter.

HIRONO: Well, that is still going to require the consent of the rules committee, Republican chair and Chuck Grassley. So, that`s a nonstarter. The FBI is supposed to be doing this investigation and for Chuck Grassley to say there`s nothing that the FBI can do that will have any relevance to Dr. Ford`s testimony is -- defies all logic, in my view.

By the way, we all know that she is being threatened. You know, isn`t that witness tampering? Isn`t that a crime? Why does the FBI have to wait around for the president to say go do your jobs? Why don`t they do their jobs?

I think there`s a crime that`s occurring right now. She`s afraid to come to testify, not to mention she is not getting a fair deal. The entire -- the force and power of the presidency and the administration and all their supporters in the Senate are for Kavanaugh. What does she have?

I think when she said that she wanted to testify, she will participate, I think she expected a modicum of fairness, that`s not what she`s getting. Why the heck does she participate in a -- basically a situation that is so disadvantageous to her and that revictimizes her? This is exactly what happened to Anita Hill.

MADDOW: Senator, just to underscore what you said there, you`re suggesting that the efforts that have been made to threaten Dr. Blasey Ford since she came out -- her lawyers have said she`s had to leave her home, there have been death threats and she`s been impersonated online, we have seen that she`s been doxed essentially, that her personal information has been posted online. You`re saying that should be investigated federally as a law information matter as witness tampering?

HIRONO: That sounds like witness tampering to me. So, why doesn`t the FBI go in and investigate that? They do not need to have the president tell them to do it.

So, there are so many reasons that this unseemly rush to get Judge Kavanaugh on the court is just -- it is explainable but it`s not acceptable.

MADDOW: Senator Maize Hirono --

HIRONO: It`s not what we should be doing.

MADDOW: Senator Maize Hirono of Hawaii, excuse me there, ma`am, member of the Senate Judiciary Committee -- I really appreciate your time tonight. Thank you. Keep us apprised.

HIRONO: Thank you. Aloha.

MADDOW: Thank you.

All right. Much more to get to tonight. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Being the deputy attorney general in the Trump administration is not an easy job.

(BEGIN VIDEO CLIP)

ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: I can tell you that there are people who have been making threats privately and publicly against me for quite some time. I think they should understand by now that the Department of Justice is not going to be extorted.

(END VIDEO CLIP)

MADDOW: The Department of Justice is not going to be extorted.

Deputy Attorney General Rod Rosenstein in May speaking there. At the time, he was responding to demands for law enforcement sensitive and classified documents that were being made by pro-Trump Republicans in Congress. They wanted the release of documents that pertained to an open, ongoing investigation of the president and his campaign. Department of Justice is not going to be extorted.

Well, now, those kinds of demands are coming to the Department of Justice again from the same cast of characters. But this time, we`re getting all sorts of red flags that this time the justice department is more than just being extorted. This time, we`re getting a bunch of red flags that in this case, the Department of Justice may be being set up. And that story is still ahead tonight.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: The death toll tonight from former Hurricane Florence is now 37. North Carolina rivers are continuing to crest. Even now, the flooding is continuing to get worse, even now. In addition to the human misery and loss of life, we know that from experience that large-scale flooding often means large-scale serious pollution problems.

In North Carolina, one of the factors is that that state has a ton of hog farms. It`s a huge pork-producing state. Roughly 9 million hogs on farms all around North Carolina. Back in 1999 during Hurricane Floyd, dozens of what are called hog lagoons, big lagoons, filled with toxic hog waste, they ended up swamped by Floyd. They sent toxic waste downstream, killed wildlife, polluted water in a major way.

Well, now, in this new storm, it`s happening again. North Carolina officials estimated that as of yesterday, 77 hog lagoons, quote, have either released pig waste into the environment or are at eminent risk of doing so. That`s more than double the count from the day before when the number was just 34.

Today, according to the state, the number of hog lagoons that have structural damage or have already been releasing toxic waste or are at imminent risk of doing so jumped again. So, we`ve gone from 34 of these lagoons two days ago, to 77 as of yesterday, to 110 as of today. And those are just estimates based on hog farmers self reporting. In the current conditions a lot of farmers can`t even get to their farms to even assess the damage.

So, the real number of these hog lagoons spewing toxic waste, it could go up dramatically. And tonight we have reason to believe that it will. Because it`s not just the farmers who can`t get back to see how much damage there is. It`s also inspectors from the state, from the North Carolina Department of Environmental Quality. The flooding is so bad they`ve been unable to visit these sites, unable to visit these hog lagoons, even the ones that they know are breached so they can test the water to see what kind of toxic damage is being done.

And short of seeing it for themselves, investigators have been relying on things like photographs. In this case, aerial photographs of these hog lagoons, photographs that seem to show, quote, widespread devastation and, quote, telltale trails of rainbow colored sheen indicating potential contamination visible on top of the black floodwaters. That`s from the "A.P." tonight.

Here is one of those aerial photos. Look at this. You can see that rainbow colored slick, right? That`s the danger. What`s in that slick? The mystery of whatever is in there, that is potentially scary stuff here.

Joining us now is Michael Biesecker. He`s an investigative reporter for "The Associated Press", a North Carolina native. He`s been covering the environment and the EPA for a long time.

Mr. Biesecker, thanks very much for your time. I really appreciate you being here.

MICHAEL BIESECKER, REPORTER, ASSOCIATED PRESS: Good to be with you, Rachel.

MADDOW: So, you broke this story about inspectors from the state not being able to get to these sites and test for themselves whether there have been breaches, whether there`s been toxic contamination.

How important is it that they get in there, in person, to assess the damage?

BIESECKER: Well, I mean, obviously, having water samples could show us what`s in the water before it gets diluted and washed downstream, into people`s homes, or into rivers and oceans.

I think they`d be able to tell, looking at aerial photos and when they do make visit sites to the farm whether the lagoon is breached or overtopped or inundated.

MADDOW: As just a human being, the idea of gigantic pits full of hog waste is a gross seeming thing, even in the best of times. In this case, thinking about those things being inundated with floodwaters and then spread, it`s obviously viscerally uncomfortable just because we can imagine what those things are like.

What`s the real danger in terms of toxicity and pollution?

BIESECKER: Well, hog lagoons can have bacteria other things that wouldn`t be great if you were to come into contact with them or to drink them. It can contaminate sources of drinking water.

But it`s not just hog waste floating around in the water. You know, one of the pictures you showed was a municipal waste water treatment plant that had been inundated by floodwaters. There`s also chicken farms that have piles of chicken manure as well as dead animals. In North Carolina, the latest estimates was 3.4 million turkeys and chickens had drowned and about 5,500 hogs. So, that and industrial sites, it makes this toxic soup that`s floating around that, you know, people have no choice but to make contact with if they`re trying to get back into their homes and when they get to their homes, they may find that that contamination is washed in.

MADDOW: Are steps being taken to sort of protect residents here, to at least advise people about potential contamination in the flood waters? I`m thinking not only near the industrial sites or the large scale agricultural sites you`re talking about but also around issues like coal ash. There`s been landfills of toxic coal ash that we`ve been told are potentially in danger and near cresting rivers.

BIESECKER: I would think people in the Carolinas are intimately familiar with hog waste and the threat it poses. As you led in with, in 1999, we suffered Hurricane Floyd, when a lot of lagoons ruptured, in 2016, it was Hurricane Matthew. So, this is something people down there dealt with before.

I think coal ash is something that flew under the radar until there was a big spill on the Dan River in 2014 with the Duke Energy ash pit there that really raised awareness within the state and resulted in a pretty record criminal find against Duke of about $100 million and cleaning out their ash pits, which is what they were in the process of doing when these landfill ruptured. They were digging it out of one of the old ash pits and trying to put in a new line landfill.

MADDOW: Michael Biesecker, investigative reporter for "The Associated Press", really appreciate your time tonight. You`re one of the national reporters out there who I`ve got a Google alert on. I read every single article that you -- that you publish. You`ve done great work at the "A.P." on these issues. Thank you for being here.

BIESECKER: Thank you, Rachel.

MADDOW: All right. We`ll be right back. Stay with us.

(COMMERCIAL BREAK)

MADDOW: The president this week of all weeks has ordered the immediate declassification of some extraordinarily sensitive materials from the special counsel`s still ongoing investigation into the president and his campaign. The president now wants FBI interviews that were used at the onset of the investigation declassified and released. He wants internal communications from Justice Department and FBI officials involved in the investigation declassified and released. He wants all this material from the still ongoing investigation of him and his campaign released publicly, while the investigation is still happening.

When the news of this order from the president broke, the top Democrat on the House Intelligence Committee suggested there could be trouble ahead about handing over these super sensitive documents. Congressman Adam Schiff said he had quote, been previously informed by the FBI and Justice Department that they would consider the release of these documents a red line that must not be crossed as they may compromise sources and methods.

As a further sign how serious this might be, former CIA Director John Brennan said he hoped individuals of conscience in the FBI and Justice Department would refuse to carry out the president`s order to declassify this material.

(BEGIN VIDEO CLIP)

JOHN BRENNAN, FORMER CIA DIRECTOR: If Mr. Trump in the White House does not relent, well then I think they have some decisions to make whether or not they`re going to just not follow that direction and be fired or to resign.

(END VIDEO CLIP)

MADDOW: Which may well be the point.

Former acting CIA Director John McLaughlin called this probably the president`s most serious assault on the justice system yet. If the president pushes this all the way through, it ought to be a resignation issue for someone in justice. Maybe Trump`s intention. This is the issue here, the president is asking for stuff part of an ongoing investigation.

According to Congressman Schiff he`s asking for stuff specifically that`s seen by people on law enforcement as a red line, stuff that can`t be publicly released. Is that why he`s asking for this information? Is he doing it so that FBI and Justice Department officials will say, no, thus creating a pretense for him to fire those people? Alternatively, is he pushing those people to resign in protests, thus vacating their jobs so the can put in more pliable replacements?

As for how current officials are expected to respond to this latest order from the president, "Bloomberg" reports they`re currently planning redactions, looking for a path that would still keep some of this information secret despite the president`s order to let it all out.

As to how that responsibly met by the president, watch this space.

(COMMERCIAL BREAK)

MADDOW: One last thing to stick a pin in tonight, highest ranking member of the president`s administration thus far who had pled guilty in the Russia investigation is former national security adviser Mike Flynn. Flynn pled guilty in December.

As part of his plea, he agreed to cooperate with prosecutors. Since then, his case has basically been presumably on hold while he`s been talking with prosecutors. Maybe those talks are close to done. As of now, as of tonight, the judge in his case has finally set a date for Michael Flynn to be sentenced. We`ve got a firm date now, December 18th, 11:00 a.m., courtroom 24A.

Mark your calendar.

That does it for us tonight. We will see you again tomorrow.

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".

Good evening, Lawrence.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END

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