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White House authorizes FBI to expand. TRANSCRIPT: 10/1/2018, The Last Word w Lawrence O'Donnell.

Guests: John Heilemann; Ruth Marcus; Lisa Graces; Barbara McQuade

Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: October 1, 2018 Guest: John Heilemann; Ruth Marcus; Lisa Graces; Barbara McQuade>


And I`m just trying to picture Paul Manafort undercover.  I just -- I don`t know what that is.

JOY REID, MSNBC HOST, "A.M. JOY":  It is snake jacket to hide --

O`DONNELL:  Is that a beard?  What is that? 


O`DONNELL:  I don`t know.  Thank you, Joy. 

REID:  Bye.

O`DONNELL:  Thank you.

Well, the FBI investigation of Brett Kavanaugh has more to work with tonight than it did last night including this statement by Brett Kavanaugh`s Yale roommate, Chad Ludington. 


REPORTER:  The other roommate said he never saw him blackout.  He was with him when he got home at night and saw him when he woke up.  Your response to that? 

CHAD LUDINGTON, KAVANAUGH COLLEGE FRIEND:  I unfortunately believe that probably my now ex-friend is lying. 


O`DONNELL:  Brett Kavanaugh was questioned under oath last week because he was accused of attempted rape with his friend, Mark Judge, while he was drunk, according to Dr. Christine Blasey Ford.  And in the Senate confirmation hearing, Brett Kavanaugh was questioned under oath about his drinking in college because Deborah Ramirez has accused Brett Kavanaugh of aggressively exposing himself to her while he was drunk, stumbling drunk at a party in a Yale dormitory. 

Deborah Ramirez says that when she had to push Brett Kavanaugh away, she was forced to touch him in a way that disgusted and horrified her.  And so, descriptions of Brett Kavanaugh being belligerent and aggressive while being drunk at Yale are now highly relevant to the FBI background investigation of Brett Kavanaugh.  Brett Kavanaugh`s under oath answers to last week`s questions about drinking are now the basis of this week`s questions about perjury. 

"The New York Times" is now reporting, according to unnamed White House sources, that the FBI will actually be allowed to interview anyone the FBI deems necessary in the Kavanaugh investigation after initial order from the White House limited the FBI investigation to interviewing only four people.  And those four people did not include Brett Kavanaugh or Dr. Christine Blasey Ford, but did include Deborah Ramirez. 

Friday on this program two women who were roommates of Deborah Ramirez at Yale said that Brett Kavanaugh frequently got very drunk, and they believe that his set of testimony minimizing his drinking was a lie because they themselves both drank with Brett Kavanaugh while in college.  Both of the women said they believed Deborah Ramirez`s accusations against Brett Kavanaugh.  And yesterday, Chad Ludington, that Yale classmate of Brett Kavanaugh`s, issued a written statement saying he was deeply troubled by Brett Kavanaugh`s description of his drinking at Yale. 

Chad Ludington is now a professor at North Carolina State University.  He was a varsity basketball player at Yale.  Brett Kavanaugh was not on the varsity team, but he enjoyed socializing with the varsity players according to Chad Ludington. 

In his written statement, Professor Ludington said, quote: Brett was a frequent drinker and a heavy drinker.  I know because especially in our first two years of college, I often drank with him.  On many occasions, I heard Brett slur his words and saw him staggering from alcohol consumption, not all of which was beer. 

When Brett got drunk, he was often belligerent and aggressive.  On one of the last occasions I purposefully socialized with Brett, I witnessed him respond to a semi-hostile remark not by diffusing the situation but by throwing his beer in the man`s face and starting a fight that ended with one of our mutual friends in jail. 

And tonight, "The New York Times" has discovered corroborating evidence of the incident that Chad Ludington just described.  "The New York Times" has obtained the New Haven police report of an incident that occurred in 1985 in which Brett Kavanaugh was questioned by police who responded to a bar fight in New Haven.  In the police report, Dom Cozzolino, says that he got into a fight with Brett Kavanaugh and his friends in that bar after Brett Kavanaugh threw ice at him. 

According to "The New York Times," a witness to the fight said that Chris Dudley, a Yale basketball player who was friends with Mr. Kavanaugh then hit the man in the ear with a glass, according to the police report.  Mr. Kavanaugh did not want to say if he threw the ice or not, the police report said. 

The police report referred to the incident as, quote, an assault.  Professor Ludington told the story this way to "The New York Times."  Mr. Kavanaugh threw his beer at the guy, the guy swung at Brett, Mr. Ludington, continued. 

At that point, Mr. Dudley took his beer and smashed it into the head of the guy who by now had Brett in an embrace.  I then tried to pull Chris back, and a bunch of other guys tried to pull the other guy back.  I don`t know what Brett was doing in the melee, but there was blood, there was glass, there was beer, and there was some shouting and the police showed up. 

And so, Chad Ludington`s statement in the New Haven police report now add more corroboration to Deborah Ramirez`s description of Brett Kavanaugh as being physically aggressive and abusive while drunk.  ABC News is reporting tonight Brett Kavanaugh was working on his defense against Deborah Ramirez`s accusations before her accusation became public, and that is direct contradiction of Brett Kavanaugh`s own testimony about that. 

NBC News is reporting, quote, in the days leading up to a public allegation that Supreme Court nominee Brett Kavanaugh exposed himself to a college classmate, the judge and his team were communicating behind the scenes with friends to refute the claim, according to text messages obtained by NBC News.  Kerry Berchem who was at Yale with both Kavanaugh and his accuser Deborah Ramirez has tried to get those messages to the FBI for its newly reopened investigation into the matter but says she has yet to be contacted by the bureau. 

In a statement to NBC News, Kerry Berchem, who was now a partner in the law firm Akin Gump said, I understand that President Trump and the U.S. Senate have ordered an FBI investigation into certain allegations of sexual misconduct by the nominee Brett Kavanaugh.  I have no direct or indirect knowledge about any of the allegations against him.  However, I am in receipt of text messages from a mutual friend of both Debby and mine that raise questions related to the allegations. 

I have not drawn any conclusions as to what the texts may mean or may not mean, but I do believe they merit investigation by the FBI and the Senate.  Kerry Berchem`s lawyer identified too texts for NBC News that indicated that Brett Kavanaugh knew about Deborah Ramirez`s accusation before "The New Yorker" made that accusation public on September 23rd.  Before that article was published, one friend of Brett Kavanaugh`s texted, quote, that she had been in contact with Brett`s guy and also with Brett who wanted her to go on the record to refute Ramirez. 

That friend of Brett Kavanaugh`s also told Kerry Berchem, quote, she turned over a copy of the wedding party photo to Kavanaugh, writing in a text, I had to send it to Brett`s team, too. 

Here`s what Brett Kavanaugh said under oath when asked when he first heard of Deborah Ramirez`s allegation. 


SEN. ORRIN HATCH (R), UTAH:  When did you first hear of Ms. Ramirez`s allegations against you? 

JUDGE BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE:  In the last -- in the period since then, in "The New Yorker" story. 


O`DONNELL:  Joining the discussion now, Heidi Przybyla, NBC News national political reporter, Ron Klain, former chief counsel to the Senate Judiciary Committee during the Clarence Thomas-Anita Hill hearings, and Barbara McQuade, former federal prosecutor.  She is a professor at law at the University of Michigan, and NBC News and MSNBC legal contributor. 

And, Heidi, it`s your reporting tonight about these texts that preceded "The New Yorker" article, and these texts seem to contradict Brett Kavanaugh`s under oath testimony that he first heard of the Ramirez accusations by reading "The New Yorker" article. 

HEIDI PRZYBYLA, NBC NEWS NATIONAL POLITICAL REPORTER:  Correct, Lawrence.  So we obtained these texts from a third party, essentially.  A woman who had been texting with another fellow classmate of Brett Kavanaugh`s who had all gone onto Yale together.  She said to me, look, she never really wanted to go public on this, but she can`t get the attention of the FBI. 

She`s tried several times to get these text messages through to the FBI, and she believes that they prove potentially two things that need to be looked in further.  One, that Brett was fully aware of the reporting that was about to come down despite what his testimony was there that you just played, that her friend who is named Karen Yarasavage was texting her that Brett was essentially trying to get her to do two things.  One, produce that wedding photo because presumably it showed the two of them, Debbie and Brett, smiling together in a photo 10 years after the alleged incident. 

And two, to get her to go on the record, Karen, to go on the record to refute Debbie`s story.  Of course, Karen never did that.  She was an anonymous source refuting the story.  But still, my source, Kerry thinks this needs to be looked into further in terms of what Brett knew and what he was coordinating and trying to do behind the scenes to refute Debbie`s story. 

And secondly, there`s something I think you need to point out lowered down in the story that`s really troubling potentially and that this -- remember, this is private correspondence between two friends.  And Kerry Berchem says in that correspondence that she was very troubled by Debbie`s behavior at that wedding, ten years after the alleged incident, that she said Debbie wouldn`t go near Brett and his friends, that she clung to her, even though they were technically in a separate peer group, it was Debbie who was friends technically with Brett and his friends, and yet she wouldn`t go anywhere near them.  And she said in her memo outlining all of this, that it all makes sense to me now. 

O`DONNELL:  And, Heidi, in your reporting these are texts from friends of Brett Kavanaugh.

PRZYBYLA:  Correct.

O`DONNELL:  And they`re referring to Brett certainly indicating that there was direct contact with Brett himself about Debbie Ramirez before "The New Yorker" article came out and what Brett was looking for was some way to refute what Debbie would say. 

PRZYBYLA:  That`s right.  And it was because my source Kerry Berchem who ultimately did go on the record with us about this memo was so concerned about that potential collaboration, that she hired a lawyer (INAUDIBLE) getting through to the FBI, on Sunday, just yesterday, she hired a lawyer to help her bring this information forth, because these text messages specifically say, Brett.  They say Brett, wanted me, Karen, her friend, to speak out to refute the claims.  And then she says Brett`s team, Brett`s guy are trying to get her to do other things.  I`d to hand over this photo to Brett`s team, for instance. 

So, clearly, she is naming Brett by himself personally and his quote/unquote team that was trying to collect this information to essentially undercut Ramirez`s story before it came out. 

O`DONNELL:  So, Heidi, as of now, as of 10:00 p.m., any contact with the FBI about this? 

PRZYBYLA:  Nope.  So I`ve been in contact with my source all day.  Of course, in the course of today, it was reported the White House is now ordering the FBI to expand its investigation, but, Lawrence, this is very much a open question whether this tight-knit group of Yale University students who know Brett Kavanaugh so well are going to be questioned in the course of this very short investigation. 

If there are text messages that exist between these two women, there could potentially be a whole stream of text messages as well between Brett Kavanaugh and his close male friends as well who could have been witnesses to this alleged incident. 

O`DONNELL:  Ron Klain, Kerry Berchem, a partner in a major law firm, trying to make contact with the FBI about this investigation, and she can`t get through to the FBI with this information about these texts, which appear to indicate Brett Kavanaugh had an awareness that there was an accusation coming.  For some reason, he knew there`d be some kind of accusation coming from Deborah Ramirez before he read it in "The New Yorker" and that`s a contradiction of his under oath testimony. 

RON KLAIN, FORMER CHIEF COUNSEL, SENATE JUDICIARY COMMITTEE:  That`s right, Lawrence.  I mean, I think we`ve seen all over today.  I saw multiple people on Twitter saying, hey, I have information on Brett Kavanaugh, the FBI won`t call me.  Hey, I can confirm what people are saying about his behavior at Yale.  The FBI won`t call me. 

I mean, I think we`re going to see whether or not FBI stands for fake background investigation.  Because we know that`s what the White House was trying to get done.  They were trying to just do barely enough to satisfy Senator Flake, Senator Collins, and they got called on it today. 

So, maybe they`ve loosened the reins.  We don`t really know.  We don`t know how much the FBI is going to do.  We do know that there are people literally holding up red flags saying, please, FBI call me and they aren`t getting called. 

And so, you know, this is going to play over the next three days.  Now, people have said this can`t be done in a short period of time.  The FBI has to do very little.  But in 1991, the judiciary committee heard from 22 witnesses in three days of public testimony on Anita Hill.  So, the FBI can contact all these people, they can get it done by the deadline if need be, and there`s no excuse for not doing a full investigation. 

O`DONNELL:  Barbara McQuade, James Comey wrote a kind of surprisingly confident op-ed piece about the FBI could do in this investigation, even in a limited version of the investigation as it was first understood to be.  If the investigation is unhindered and if the FBI is allowed to follow the leads as it finds them, as a former federal prosecutor working with FBI agents, what do you believe the FBI`s capable of? 

BARBARA MCQUADE, FORMER U.S. ATTORNEY:  Well, they`re capable of incredible things.  They can surge a lot of agents to interview all these people in very short order.  But what`s artificial about it in the phrase of Jim Comey, putting a shot clock on the FBI does not advance the interest of the quest for the truth here.  Because what you would ideally do is interview people in order.  You would talk to some people and then with that information, you would use that information to find other people and ask follow-up questions of them. 

Instead, what you probably have to do is assign dozens of agents to go out simultaneously to conduct the interviews and then come back.  So, you don`t get a chance to say I heard "x," what you say about X, if so and so, said Y, would you believe they were lying?  You don`t get the opportunity to sort of have that whole picture. 

And so, I think that does cause some problems.  No doubt they can get out and talk to all these people in a week, but if you`ve got hundreds or dozens of agents doing it, do you really have that comprehensive look that would be ideal? 

O`DONNELL:  And, Heidi, it seems reporters like you and "The New York Times" are out there covering things before the FBI.  Certainly, the information that you`ve uncovered about these texts is something we know the FBI has not dealt with before you have because the people involved have tried to reach the FBI. 

PRZYBYLA:  I can say definitively that my source, Kerry Berchem, is among the people who did not want to have to go to the media.  In fact, she didn`t go to the media.  I obtained her memo that went to the FBI through other means. 

But it was when I came to her and said, look, I have this information, these texts that you outlined, will you please come forward?  That she did say to us in a statement that, you know, this is something that needs to be looked into, and she`s essentially having to come out now because it`s the media that`s coming to her, not the FBI. 

I was in contact with her, Lawrence, just a cup of hours ago and she said, hey, I`m on try number three now.  They referred me to a field office.  I called the field office and they said, we don`t take that kind of information. 

O`DONNELL:  And, Ron, "The New York Times" reporting tonight that police report indicates that Brett Kavanaugh was indeed in a bar fight at Yale that corroborates a description of a bar fight given a day before by his former roommate, a former Yale varsity basketball player.  The journalist, "The Times," Heidi and ABC News are finding the things the FBI should be getting to first. 

KLAIN:  Well, they are.  And it does raise a question how thorough the first background investigation was.  That`s water under the bridge now.  It needs to be thorough now. 

And I`m going to say something that`s kind of unpopular, which is at the end of this week, they really should have another hearing and bring Brett Kavanaugh back in, because what`s really stacking up, Lawrence, is a series of statements he made at the last hearing that these subsequent revelations are showing to be untrue or arguably untrue at least.  The stuff in the text that Heidi uncovered, this issue about the bar fight, all the people at Yale who say he was a belligerent drunk. 

And really, in the FBI, the FBI should create a record of these facts and then he should be brought back under oath to explain the contradictions between his testimony and what seems to be developing as this investigation unfolds. 

O`DONNELL:  Barbara, it seem the question tonight is how much perjury is too much perjury by Brett Kavanaugh.  And, of course, prosecutors normally treat perjury to be something that has to be serious, it has to be a material fact.  If you, you know, didn`t tell the truth about, you know, what shoes you were wearing that day and that`s not really a material fact in the case, it`s no big deal. 

But the things that Brett Kavanaugh`s being challenged on on credibility, do they sound like material facts to you?  For example, did you ever get blackout drunk?  Did you ever pass out drunk in high school or college?  Did you get aggressive and belligerent while drunk, which seems to be relevant to the accusation against him at Yale. 

Republicans are trying to say, you know, this is -- the Democrats have now turned to high school drinking as if that`s an issue.  But when we`ve had under oath testimony about high school drinking and high school drinking involved in a sexual assault, that seems to be in the strike zone of perjury. 

MCQUADE:  Yes, proving perjury can be very difficult because you have to prove, as you said, that it`s a material fact.  Not some detail about what was meant by high school slang in a yearbook, for example.  But perhaps the question about whether you were ever blackout drunk.  The other thing you have to proof is that the person then and there knew what he was saying was false.  If he never remembers being blackout drunk because he was blacked out drunk, then he may not remember whether the statement was false. 

But I think what`s more important is, regardless of whether you can bring a criminal case against him for perjury, which seems unlikely to me, the question is, is this someone who lies and dissembles?  This is someone to be an officer of the court to preside over the United States Supreme Court, this should be someone whose integrity is beyond reproach.

And if we have caught him at minimizing and dissembling, is this someone who we want on the highest court in the land?  And does that instead demonstrate the kind of things the background check is designed to fare out, which is, is this person suitable for this job.

Ordinarily, all of this stuff is done in background, not in public display.  And so, when you do find discomfort with someone`s answers or their past, they quietly go away and you move onto the next candidate and you say, hey, he made the short list, isn`t that great?  Instead, we have this on full display. 

But nonetheless, regardless of who`s to blame and the tribal politics, what we want is good Supreme Court justice.  And if we don`t have that in Brett Kavanaugh, we ought to move onto the next candidate. 

O`DONNELL:  Heidi Przybyla, Ron Klain, Barbara McQuade, thank you for helping us analyze this breaking news tonight. 

And when we come back, once again today, Donald Trump proves that he is Brett Kavanaugh`s very worst defender.  And a Republican prosecutor hired to ask questions for Republicans in the Senate Judiciary Committee last week has written a very Republican memo about that hearing in which she completely ignores the possible testimony of Brett Kavanaugh`s friend Mark Judge who Dr. Christine Blasey Ford said joined in the sexual assault against her.  And the Republican prosecutor miraculously also completely ignores the under oath testimony and possible perjury of Brett Kavanaugh.


O`DONNELL:  The good news for Brett Kavanaugh is that Donald Trump is the only president in history who would not, by now, have withdrawn Brett Kavanaugh`s nomination.  The bad news for Brett Kavanaugh is Donald Trump is his public defender. 

And even though Brett Kavanaugh insists that he did not have a drinking problem in high school or college, Donald Trump doesn`t believe Brett Kavanaugh, doesn`t believe he was telling it truth when he said that. 

Donald Trump believes that Brett Kavanaugh did have a drinking problem because nobody has said anything bad about his behavior in the last 20 years.  And 20 years is a very interesting time bracket to pick because it was exactly 20 years ago when Brett Kavanaugh was working in the special prosecutor`s office trying to remove President Clinton from office, that one still anonymous witness says she watched Brett Kavanaugh be physically aggressive while drunk with a woman in Washington, throwing her up against a wall. 

Today, Donald Trump actually chose a more believable defense for Brett Kavanaugh than Brett Kavanaugh chose for himself under oath.  Today, the president said that, of course -- of course, Brett Kavanaugh had a drinking problem in high school. 


DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  I was surprised at how vocal he was about the fact that he likes beer.  And he`s had a little bit of difficulty.  I mean, he talked about things that happened when he drank.  I mean, this is not a man that said that alcohol was -- that he was perfect with respect to alcohol. 


O`DONNELL:  He actually did kind of say he was perfect with respect to alcohol, to the point where he actually lied under oath about the legal drinking age in Maryland so that he could claim his drinking was legal when he was a senior in high school when, in fact, Brett Kavanaugh did not have a single legal day of drinking until he turned 21.  There has never been a high school kid in America who did not know the legal drinking age when he was in high school.  Not one. 

Keep that in mind now when you watch this particular unnecessary piece of perjury by Brett Kavanaugh about the drinking age. 


JUDGE BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE:  Yes, we drank beer.  My friends and I, the boys and girls, yes, we drank beer.  Liked beer, still like beer.  We drank beer. 

The drinking age as I noted was 18, so the seniors were legal.  Senior year in high school people were legal to drink, and, yes, we drank beer.  And I said sometimes, sometimes probably had too many beers and sometimes other people had too many beers.  We drank, we liked beer.

RACHEL MITCHELL, PROSECUTOR:  What do you consider to be too many beers? 

KAVANAUGH:  I don`t know.  You know, we -- whatever the chart says.  The blood alcohol chart. 

MITCHELL:  When you talked to Fox News the other night, you said that there were times in high school when people might have had too many beers on occasion.  Does that include you? 


MITCHELL:  Have you ever passed out from drinking? 

KAVANAUGH:  Passed out would be, no.  But I`ve gone to sleep, but I`ve never blacked out.  That`s the allegation, and that -- that`s wrong. 


O`DONNELL:  I`ve gone to sleep, but I`ve never blacked out. 

Now, sorry, but for a guy like Donald Trump who`s never been drunk, he obviously doesn`t see any real difference between going to sleep or blacking out from drunkenness. 


TRUMP:  I`ve never had a glass of alcohol, I`ve never had alcohol.  I`ve just, you know, for whatever reason -- can you imagine if I had, what a mess I`d be?  I`d be the world`s worst. 

But I never drank.  OK?  But I can tell you I watched that hearing and I watched that man say he did have difficulty as a young man with drink. 


O`DONNELL:  I watched a man saying that he did have difficulty as a young man with drink. 

Difficulty with drink is now difficulty with perjury for Brett Kavanaugh.  That`s next with John Heilemann and Ruth Marcus. 


O`DONNELL:  So exactly how much Brett Kavanaugh perjury is too much Brett Kavanaugh perjury?


SCOTT PELLEY, HOST, 60 MINUTES:  If Judge Kavanaugh is shown to have lied to the committee, nomination`s over?


SEN. CHRIS COONS, (D), DELAWARE:  I would think so.


O`DONNELL:  Joining us now John Heilemann, national affairs analyst for MSNBC news and NBC.  He is co-host of "Showtime`s The Circus" and Ruth Marcus, deputy editorial page editor and columnist at "The Washington Post" and an MSNBC contributor.

And John, you got in a word with Jeff Flake today in Boston where he was making a public appearance.  What is -- where is he as of tonight on this nomination?

JOHN HEILEMANN, NATIONAL AFFAIRS ANALYST, MSNBC:  I got a lot of words with him, Lawrence.  For about 20 minutes, we sat up at the New Hampshire Institute of Politics at Saint Anselm in Manchester.  I know you`re familiar with that institution although I am currently in Boston.  We talked about a fair number of things including his concerns.  He`s voiced them at an event earlier here, and then he got up there about where things currently stand with the investigation and the ways in which the FBI was initially circumscribed in terms of what they were doing going forward.

He said to me that this was not -- that this notion of there being only four witnesses and those four witnesses, the FBI not being able to go and take what they learned from those four witnesses and go further.  The nature of how the investigation have been laid out, the scope of it was not how he originally imagined it when he said limited scope.  He thought they would start with those four witnesses and then move on.

I think he spent most of this day, today along with Chris Coons, talking to Don McGahn`s office, talking to Senate leadership with whom he is clearly not totally on the same page about how to make sure that this investigation is a real investigation and it seemed to be a real investigation.  Because it`s clear to me in the totality of our conversation that he`s a little bit of a guy with a tiger by the tail.

He knows he did something important on Friday in getting this extra week, in getting this supplementing FBI investigation but he`s now realizing that if this investigation is not proper, is not done in the right way, does not meet certain credibility standards, that they could find themselves in a worse place when it ends on this Friday than they were last Friday, which is a pretty bad place.

O`DONNELL:  And Ruth Marcus, I have to say knowing Mitch McConnell as I do, his approach to this would be to try to do the most minimal investigation possible and in the process, humiliate Jeff Flake by not actually delivering what Jeff Flake wanted and place the bet that Jeff Flake will simply bear that humiliation and the Kavanaugh nomination will get through.

RUTH MARCUS, DEPUTY EDITORIAL PAGE EDITOR AND COLUMNIST, THE WASHINGTON POST:  I don`t disagree with that.  And I think today, though, as John has related it was a very good day in terms of showing that if there`s intensive media and public scrutiny on the conduct of this very important investigation that Senators like Senator Flake are not going to allow themselves to be played for fools, to allow this to be turned into just a farce of an investigation, and that we are not going to get perfection, we`re certainly not going to get perfection in a week.

I doubt that my friend Ron Klain`s suggestion of bringing Judge Kavanaugh back before the committee is one, that`s going to be eagerly snapped up by Senator McConnell or Senator Grassley.  But we`re going to get something better than what Senator McConnell and Don McGahn, the White House Counsel wanted to give to us in the first place, and that`s actually a very good development today.

O`DONNELL:  And John, it has always been up to Jeff Flake from the start to stop this and get the correct kind of investigation and it still is.  Did you get the sense from him today that he realizes that he actually cannot simply trust this process that he has kind of kick-started?  Clearly, he was working directly with the White House today and presumably with Mitch McConnell on getting the kind of investigation he wants.  But does he realize he`s going to have to do that every day?  Like Tuesday, they`re going to face the same problem.

HEILEMANN:  I think he recognizes it, Lawrence.  I said to him in the course of our conversation, which was about 7:00 at night, I said, you know, the FBI agreed -- the White House agreed to expand the scope of the inquiry ostensibly.  That was reported in "The New York Times" around 2:30 in the afternoon.  And around 5:30 in the afternoon, a source of mine said that as far as he knew that the FBI have not received any legal instruction from the White House actually expanding the scope of the inquiry.

And when I said this to Flake, I said, you know, that`s what my source is saying who is in touch with people at the very top of the FBI, what do you think of that?  He said, "If that`s true, that`s a problem.  And I`ve been busy today.  I`ve had this event.  I`ve had the two events today.  One in the afternoon, one this evening.  I`ve got to go get on the phone basically and find out what`s going on."

It`s clear that he`s not fully on the same page with leadership.  I asked him that.  Are you on the same page with Mitch McConnell and Chuck Grassley?  He said, "I don`t know basically.  I`m not sure about that."  And I asked him then finally.

I said if you get, we get to the end of the week and the scope of this inquiry and the way it`s being conducted do not meet your standards, what are you prepared to do?  Are you prepared to ask for more time?  Are you prepared to use that as a basis just to vote against Judge Kavanaugh?

And he said, "Well, let`s wait until we get to then.  I don`t want to say that I`m open to an extension because I do believe that this will all be done in a week."  But he was suggesting at least that he was not foreclosing the possibility that there was a problem with the investigation, that he might ask for more time at the end of the week.  He didn`t deny that.

O`DONNELL:  And Ruth Marcus, no doubt that Senator Susan Collins and Lisa Murkowski are happy to see Jeff Flake bear the brunt of this kind of labor at this point, but they have a role to play here, too.

MARCUS:  They, and I think we should point out there are a lot of Republican Senators who should want to see a full and fair process both for their own reputations and for that of the court and the good of the country.  So it sometimes is a little bit grating that we only pretend there are kind of three honest Republican Senators out there.  Where are the others?

But, you know, this is not Jeff Flake`s decision alone.  If he were to walk at the end of the day and say, "No, this investigation was not adequate and I`m withholding my vote," you would still need additional Republican Senators to go along with him to stop the nomination at this point.

O`DONNELL:  John, there`s that dramatic moment at the end of the 60 Minutes coverage last night where both Jeff Flake and Chris Coons were asked if Kavanaugh`s shown to have lied, is that the end.  Jeff Flake instantaneously, "Oh, yes."  But that`s going to be up to Jeff Flake to evaluate and decide whether Kavanaugh has lied.

HEILEMANN:  Well, and not just whether he`s lied but whether he`s lied about important enough things to cause him to vote no.  Again, it was a subject we discussed.  I said you know, look, it`s demonstratively the case.  Now, this is before even some of the further reporting that came out this evening was known to me.  I said it`s demonstratively the case that he`s lied in front of the committee on matters large and small.  Which of these matters is enough to be -- what perjury is enough perjury essentially to cause you to vote against him?

And he said, "Look, I`m going to have to wait and see what is shown out."  He clearly ruled in the notion that perjury should be part of this investigation, not merely the accusations of sexual misconduct but also perjury that may have arisen out of trying to explain away those allegations.  And he said, "Look, you know, we got to the drink."  You know, maybe these things related to word definitions would not be enough to keep Judge Kavanaugh off the court.

But when we turn to the questions of drinking, he tried to make a little bit of a joke about it about being a Mormon and hard to judge for him matters of excessive drinking.  But when I laid out all the claims that have been pouring in today about this, he looked clearly troubled by.  And it seemed obvious to me, though he didn`t say quite this directly because he was Jeff Flake, that it was demonstratively true that Judge Kavanaugh had mischaracterized the drinking that he engaged in when he was in high school and in college, and he lied about it rigorously to the committee, that that would be a big problem with Jeff Flake.

O`DONNELL:  John Heilemann, Ruth Marcus, thank you for joining our discussion tonight.

And when we come back, the Republican prosecutor hired by Republicans Senators to do their jobs for them has written a very Republican memo about the job that she did in the Judiciary Committee hearing room, a memo that does not even mention the testimony of Brett Kavanaugh.


O`DONNELL:  The Republican prosecutor hired by Mitch McConnell last week to do the job of every Republican member of the Judiciary Committee in questioning Dr. Christine Blasey Ford wrote the most absurd memo in the history of the Senate confirmation process saying that she believes she would be unable to bring a criminal case against Brett Kavanaugh because of Dr. Ford`s accusation.

Nothing could be more irrelevant to the confirmation process in the history of the Senate confirmation process, none of the nominees for any office including the Supreme Court who had been forced to withdraw their nominations have ever faced a chargeable crime.  Richard Nixon was forced to withdraw two Supreme Court nominees in a row.

The first was Clement Haynsworth of South Carolina because of his problematic record on civil rights.  And the next one was G. Harrold Carswell of Georgia whose nomination had to be withdrawn because of his history of legal support for segregation, the discovery of a militant white supremacist speech that he gave in 1948 and his role in a scheme to turn a public golf course into a segregated country club.

A prosecutable crime has never been needed to derail a Supreme Court nomination but Rachel Mitchell`s absurdist memo used that standard that has never been used before.  Her memo does not mention that the other witness and participant in the sexual assault that Christine Blasey Ford described was not asked to testify.  Rachel Mitchell`s memo attempts to cast doubt on Dr. Ford`s testimony, though, by saying things like even though Dr. Ford said she has a fear of flying, she flies, "fairly frequently for her hobbies and work."  I don`t know about you but most of the people, maybe every person I know who has a fear of flying flies.

Apparently, Rachel Mitchell doesn`t know that.  The Republican prosecutor`s memo is a political document written for and addressed to, "All Republican Senators."  It is an attempt by Mitch McConnell to convince all Republican Senators to use the criminal trial standard for a confirmation hearing, something that has never been done before. 

Nominees have dropped out of consideration or been defeated in the past because of reasonable suspicions of behavior and activities that are unacceptable in a government official and most unacceptable in a lifetime appointment to the United States Supreme Court.  The Republican prosecutor`s memo does not say one word about Brett Kavanaugh`s testimony, not one word about his instantly provable perjury about the drinking age in Maryland when he was in high school.

In a moment, we`ll be joined by Lisa Graves, former Senate Judiciary Counsel on her reaction to this unprecedented memo that has kind of thing that`s never occurred in a confirmation hearing before.  And Former Federal Prosecutor Barbara McQuade will join us with her view of the evidence in the Kavanaugh confirmation.


O`DONNELL:  When you`re confident in the confirmation process, you never talk about what would happen if you lose the confirmation vote but Republicans are talking about that.  President Trump actually made some mention of that possibility today.  And tonight on "Fox News", Lindsey Graham talked about what would happen if Republicans lose this vote.

He said, "What would happen if something really weird were to occur and we are one vote short?  Here`s what I would tell the president, I would appeal the verdict of the Senate to the ballot box by which he means so what would I do?  I would re-nominate him and take this case to the American people."  Of course, Lindsey Graham, as always is lying.  That is not what he would do.  They would simply go to another nominee.

Joining us now is Lisa Graves, former chief counsel for nominations for the Democrats and the Senate Judiciary Committee and former deputy assistant attorney general.  And Barbara McQuade, former federal prosecutor, is back with us

Lisa, I want to get your reaction to this very Republican memo written by this very Republican prosecutor who did the Republican Senators` jobs for them for more than half of the hearing.

LISA GRAVES, FORMER STAFFER, SENATE JUDICIARY COMMITTEE:  Well, I think you said it best, Lawrence.  It`s absurd.  That memo is paid for by our tax dollars and it is described as a memo by a reasonable prosecutor.  It`s unreasonable.  It doesn`t include any discussion of Brett Kavanaugh`s lies and deception.  It construes everything against Dr. Ford whose testimony was compelling and very thorough about what she herself witnessed.  It credits hearsay by other witnesses who might have been there.  It claims that those other people have refuted her by merely saying that they don`t recall what happened.

No prosecutor worth his or her salt would allow or write such a memo without actually having a real investigation subjecting all the people that Dr. Ford names, a real investigation by law enforcement as well as real cross-examination under oath.  The memo isn`t worth the paper it`s written on.

O`DONNELL:  And a prosecutor who was actually trained by Rachel Mitchell in Arizona came out today saying that this was not at all, this memo did not include any of the principles that Rachel Mitchell actually taught to prosecutors there.  And Barbara McQuade, it almost reads like Rachel Mitchell`s confession in a way about what this was really about.

BARBARA MCQUADE, FORMER U.S. ATTORNEY:  Yes.  I think those of us who do trial work could see right away when she started asking her questions that this was not a quest for the truth.  They were not open-ended questions.  She was all about locking her into a story and an effort to undermine her credibility.  The questions about flying, holding up the map to find out where the Columbia Country Club was located, locking her into her prior statements to show inconsistencies was really all about taking down her credibility.

I find it -- what I find absurd is that any prosecutor would reach a conclusion before the investigation is over.  The FBI has been given a week to investigate.  If you`re going to do a report, you should wait until that`s done.  But nonetheless, this is the world`s biggest distraction because as you said, Lawrence, this is not a criminal proceeding.  There is no reason to be looking at this as a prosecution.

This is Judge Kavanaugh`s opportunity to convince us that he should be on the Supreme Court, to convince the Senate that he is worthy of the Supreme Court.  This is not taking away his liberty as we see in a criminal case.  It is should he be given the privilege and responsibility of overseeing the criminal justice system.  Those are two very different things.

O`DONNELL:  And Lisa, President Trump himself said when this process was reopened that they should have a new hearing so that there won`t be Any doubt about Brett Kavanaugh.  That was the standard that Donald Trump established, no doubt about Brett Kavanaugh.

GRAVES:  Well, that`s right.  And, in fact, that was one of the only times that President Trump got something right in this whole process.  This is a matter of integrity.  The idea that the Senate would promote a man who has been so credibly accused of attempted sexual assault and the sexual misconduct for Deborah Ramirez is really offensive to the nature of the institution of the Supreme Court, but also to the role of the Senate in advice and consent.

This nomination should not proceed.  Brett Kavanaugh has demonstrated that he doesn`t have the integrity, the truthfulness, and the honesty and actually the character to be given such a permanent role in our U.S. Supreme Court.

O`DONNELL:  And Barbara, it seems -- we`re going to have to leave it there.  We have to get straight to this final break here.  Barbara McQuade, Lisa Graves, thank you both very much for joining us tonight.  Really appreciate it.

Tonight`s last word is next.


O`DONNELL:  Time for tonight`s last word.


MATT DAMON, ACTOR:  I`m here tonight because of a sham, a political con job orchestrated by the Clintons and Kathy Griffin and Mr. Roman Sinatra.  Now, I am usually an optimist.  I`m a keg is half full kind of guy.  But what I have seen from the monsters on this committee makes me want to puke and not from beer.


O`DONNELL:  Matt Damon, the keg is half full kind of guy gets tonight`s last word.