Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: November 7, 2018 Guest: Ezra Klein, Matthew Miller; Eric Swalwell, Jill Wine-Banks
LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.
And so, 98 women now have seats in the House of Representatives, a new record high. Could be 99 depending on how some of the rest of these counts shake out. It really was an extraordinary night for women candidates.
RACHEL MADDOW, MSNBC HOST: Yes, and people said this was going to be the year of the woman, year of the woman and lots of cynics and naysayers were like you always say that whenever you want Democrats to win. First of all, Democrats did win.
MADDOW: But second of all, you`ve got 1en women in the House of Representatives for the first time ever and it`s pretty undeniable, some of the hardest fought races where Republican incumbents went down the hardest, they went down against female Democrats.
O`DONNELL: And tonight, Rachel, when we see the afternoon breaking news of the president firing the attorney general, I`m just imaging what our world would be tonight if the Democrats had not won the House of Representatives, a huge win that changes the nature of Trumpism in Washington.
MADDOW: Yes, and I don`t think that there`s a disconnect between these two stories. The Democrats want control of Congress --
MADDOW: -- and the president immediately took steps to do everything he could to pull out all the steps to try to end the special counsel`s investigation into him and his campaign before the Democrats are sworn in for this new Congress, which would put them in a position to protect that investigation.
This is desperate move out of fear by this president. It`s a radical move the way he`s done it, and we are in a very uncertain moment here in terms of how this proceeds.
O`DONNELL: But, of course, and there`s no way of knowing if this president has been advised of this, that the new Democratic House of Representatives will be able to obtain the fruits of that investigation no matter what happens to it between now and the time they take office. There is nothing, there is nothing Donald Trump can do now to stop where that investigation will eventually go.
MADDOW: They can`t do anything to make what`s already happened in the investigation go away --
MADDOW: -- but they can certainly take steps to try and stop it from moving any further forward. I mean, it remains to be seen. The thing I`m most interested in right now is to what means we`ll have transparency, and to what Matt Whitaker is actually doing with the Mueller investigation.
O`DONNELL: The House Judiciary Committee can simply invite Robert Mueller up to testify at any point and tell exactly, exactly what the acting attorney general is doing every single day, especially anything involving interference.
MADDOW: That`s right. And actually that`s a record you can`t make go away either. You can`t erase the past.
O`DONNELL: Thank you, Rachel.
MADDOW: Thanks, Lawrence.
O`DONNELL: Thank you.
Two years, for two long years America waited. Since Election Day on November 8, 2016, most Americans, most voters have been waiting for the chance to do something about what happened to this country. On election day and election night 2016, when the candidate who came in second in the vote was awarded the presidency through the outdated and anti-democratic institution of the Electoral College. American voters did not want Donald Trump to be president but the Electoral College formula gave it to him.
And so, for two long years, Americans have disapproved of the Trump presidency every day of that presidency, every single day for two years. And yesterday, American voters rose up in resistance to the Trump presidency and handcuffed Donald Trump. The day after Donald Trump was inaugurated, the resistance to Donald Trump took to the streets not just in Washington but around this country and around the world in the biggest worldwide organized protest in history, and last night, that resistance took over the House of Representatives.
And today, Trump is clinging to the wreckage of the Trump government and panicking. The Trump government has included the White House and both Houses of Congress and now the Trump government is broken, very broken because the Democrats have the House of Representatives. And if Donald Trump`s newly installed political hack of an acting attorney general takes action against special prosecutor Robert Mueller, the Democratic House of Representatives will bring Robert Mueller to testify publicly about exactly how the acting attorney general has interfered with his investigation.
And the Democratic House of Representatives will move to impeach the president of the United States for obstruction of justice. They will do it. They will have to do it. They will have no choice.
The new members of the House of Representatives will demand it, and they will get it. Impeachment is real now.
And so, the president`s panicked firing of his attorney general today has moved Donald Trump one step closer to impeachment and the new Trump acting Attorney General Matthew Whitaker will also be investigated by the Democratic House of Representatives for obstruction of justice if he interferes with the Mueller investigation in any way. And so, Matthew Whitaker has to ask himself tonight, if he wants to be the subject of a criminal investigation run by a Democratic Justice Department two years from now because all of the indicators in last night`s election indicate that the Democrats will win back the Senate two years from now and will win back the White House two years from now. And so, there will be a Democratic attorney general two years from now.
Republicans held onto the Senate last night because 26 Democratic incumbent senators, most of the Democrats in the Senate were running for re-election while only nine Republican seats were up for re-election. And the next -- in the next election, that will be reversed. Republicans will have to defend 21 seats while Democrats will be defending only 12.
And the lesson that every Republican senator learned last night is not one of them is safe, not one. One of the big stars of this last campaign showed Republican senators that every one of them has something to worry about, something to fear. Beto O`Rourke came within 3 points of knocking out a Republican senator in Texas where the Democrats have not won a Senate election since 1988. They haven`t come close since 1988.
Republicans are not supposed to have to spend money or energy winning Senate seats in Texas. And now they do. There will be another Senate race in Texas two years from now when John Cornyn seeks re-election. How do you think John Cornyn is feeling tonight?
He no longer thinks his re-election is going to be easy. He`s taking nothing for granted. No Republican senator can. Not anymore.
Democrats would have been delirious if Beto O`Rourke won last night. But even if Beto O`Rourke won, the Republicans would still control the Senate with at least 51 Republican senators. And so, Beto O`Rourke`s campaign was exciting and it redefined what is possible for Democrats in so many ways, in every state in this country. And it certainly created momentum in Texas that helped elect two new Democratic House members in Texas, who probably would not have had enough Democratic turnout without Beto O`Rourke on that ticket creating all that excitement in Texas.
And so, for Democrats who are wondering what happens with those political rock stars like Beto O`Rourke after he loses a Senate race, they can think of what happened to Abraham Lincoln after he lost the Senate race. And they can think about what happened to George H.W. Bush who lost a Senate race in Texas, and the next political office that he decided to run for was president of the United States. And in that campaign he won the vice presidential slot on Ronald Reagan`s ticket. And after that he won the presidency.
And so for Democrats who were rooting for Beto O`Rourke and want to see more from Beto O`Rourke, the only thing they need tonight is patience. The crisis in American government, the Trump crisis is a Washington crisis. There is nothing Democratic governors can do to stop Donald Trump.
And so, for the governing emergency that America has face for the last two years, what really mattered last night is what happened in the Democratic takeover of the House of Representatives. It is a huge victory for the Democrats and for democracy, in a country where democracy does not always win, as we saw in the last presidential election.
Last night, 51 million votes were counted for the Democrats running for the House of Representatives, 47 million votes were counted for the Republicans, 4 million more votes were counted for the Democrats, and this time the party that got the most votes won. This time democracy won, and democracy had to fight against gerrymandered congressional districts rigged by Republicans to defy democracy. Democracy had to fight against voter suppression in a country where Republican controlled states tried to make voting as difficult as possible because they know democracy is their enemy. Democracy won.
We couldn`t say that two years ago, and that`s why America had a sickening feeling on election night two years ago. Most voters had a sickening feeling because in a country that prides itself on its democracy, we watched democracy defeated in an election two years ago. The resistance won last night, and Donald Trump feels that resistance today. He felt it in the White House press conference where he actually sent a White House staffer to try to wrestle a microphone away from a reporter, something we have never seen before in the history of White House press conferences. This was a press conference out of control.
The president held a press conference today in which he tried to appear as if he was ready to work with a Democratic House of Representatives, as if he is not terrified of a Democratic House of Representatives, including a Democratic House of Representative`s legal authority to obtain his tax returns and make them public. But because Donald Trump is the most incoherent speaker in the history of American politics, he rambled as he lied, he angrily attacked reporters, he displayed his delusions for the world to see, and he said things that even his most fervent supporters do not believe, like I am a great moral leader.
And as usual, in his desperation to appear in control of the new situation in Washington, Donald Trump made absolutely no sense.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I`m not sure that I should be happy or sad. Mia Love gave me no love. She didn`t want to have any embrace. For that, I don`t blame her.
Two years is going to go up and we won`t have done a thing.
It really could be a beautiful bipartisan-type of situation.
If they do that, then just all of it is a war-like posture.
Air and water has to be perfect. So environmental is very important to me. For the most part I`m very happy with this cabinet.
I could fire everybody right now. They`re under audit. They have been for a long time. They`re extremely complex. People wouldn`t understand them.
The election is over. Now everybody is in love.
They`re the ones that cause the division. They cause tremendous division.
They will be blamed. Let`s impeach him. We`re going to impeach Mike Pence.
I think I am a great moral leader.
And can I be honest with you?
(END VIDEO CLIP)
O`DONNELL: Joining us now, John Heilemann, national affairs analyst for NBC News and MSNBC. He`s co-host and executive producer of Showtime`s "The Circus". Ambassador Wendy Sherman is joining us, an MSNBC global affairs contributor, and Ezra Klein, editor at large at "Vox" and host of the podcast, "The Ezra Klein Show".
John Heilemann, first to you on the returns last night, this is a Trump nightmare. It has now happened to him. The Democrats have control of the House of Representatives. His life changes in ways that he still, I think, cannot yet imagine.
JOHN HEILEMANN, CO-HOST AND EXECUTIVE PRODUCER, "THE CIRCUS": Yes, that`s right, Lawrence. And you watched last night unfold. Election nights are always emotional especially for Democrats who attach themselves for understandable reasons to the fortunes of charismatic candidates who are trying to do new things and make history. People like Stacey Abrams, people like Andrew Gillum, people like Beto O`Rourke and they saw them fall.
You could sense how people were emotional invested, they were unhappy about that and were fearful they were seeing in 2018 a rerun of 2016. And then those House seats started to fall starting around really in a rush around the time 10:00, in the late 9:00 hour, around 10:00, and suddenly you realized what was happening, which was that in the end as crushing for some people some of those high profile losses are that the history books will write only about one thing last night. It will not write about those three candidates, who may have big futures ahead of them or not, not write about the fact Donald Trump`s Republican Party gained a couple of seats in the Senate at a time when the Senate map favored Republican to a degree not seen in 100 years.
What it will write about the fact that unitary government in Washington is now over and that for the first time in Trump`s political life, first time his presidency, one branch of government or half of one branch of government is controlled by the opposition party. And that will be the thing that should be the headline out of last night, it will be the thing history books write about, and the consequences for Donald Trump`s politically in terms of his legislative agenda and certainly in terms of his own and entire cabinet`s need to lawyer up are pretty profound.
O`DONNELL: Ambassador Wendy Sherman, a record number of women now elected. Before you comment on that, let`s listen to some of those women who won last night.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: When we launched this campaign, conventional wisdom dictated that this race was unwinnable.
UNIDENTIFIED FEMALE: We voted and we won, and we did all of this together.
UNIDENTIFIED FEMALE: Today is a milestone, but it is really a beginning.
UNIDENTIFIED FEMALE: It will hear my voice, it will hear your voice. It will hear all of our voices.
UNIDENTIFIED FEMALE: We`re taking our voice to Washington.
UNIDENTIFIED FEMALE: Here in Minnesota, we don`t only welcome immigrants, we send them to Washington.
(END VIDEO CLIP)
O`DONNELL: Wendy Sherman, you marched in that women`s march the day after the Trump inauguration where the resistance physically formed and joined together in the streets for the first time. The resistance won the House of Representatives last night.
AMBASSADOR WENDY SHERMAN, MSNBC GLOBAL AFFAIRS CONTRIBUTOR: It was really extraordinary, Lawrence. And I agree with John, this is what history is going to write about.
And I was talking to former Senator Barbara Mikulski, who I had the honor of running her campaign for the U.S. Senate. Thirty-two years ago, she became the first Democratic woman senator ever elected in her own right. And she joined the single other woman senator Nancy Kassebaum in the Senate.
People at the time said the togas didn`t come in a size 14 petite. And she said I`m a 25-year overnight success, and this is what senators are going to look like. And we saw that in large numbers last night with enormous diversity to boot -- veterans, moms, businesswomen, folks who have been in elective office before, folks who had not been before.
The gender gap in the Democratic Party is quite large. But we still have more work to do, and I think it is really a testament as we face the 100th anniversary of women suffrage that we are seeing such a diverse group of women run, and a lot of them win, I think it`s going to bring new energy to this terrific Congress that will be seated in January.
O`DONNELL: Ezra Klein, as we know, the economic statistics are very, very good at this point. They mirror the economic statistics of the last 20 months or so of the Obama administration. Really, really strong economic statistics. And so, there are some formulations today indicating that no president has ever lost this badly in the House, when the economic statistics are this strong.
EZRA KLEIN, EDITOR AT LARGE, VOX: This is what makes this result so remarkable. So we`re at 3.7 percent unemployment, we`re at full employment. It`s not to say the economy is perfect. But if you look at polling about the economy, what people think about the economy, people say the economy is in great shape. It`s the best time in decades to get a job.
And when you have that, that is the greatest gift a political party can have, that is when you win seats. That is when you are able to run a unifying message. Donald Trump despite having one of the best economies in decades, he has not cracked 50 percent once. And then in his first midterm election, he had a 7 percent to 8 percentage point House popular vote against his own party. That`s a bigger popular vote margin in 2010 when unemployment was 9.8 percent.
So, Republicans managed to make people angrier than 3.7 percent unemployment than Democrats did when unemployment was 9.8 percent. That is a political failure of a startling proportion. And I think one reason it doesn`t always get appreciated that way is Donald Trump`s initial rise was so unexpected the media is often very loathe to say he`s actually not that good at politics. He`s done amazing things, but he underperforms given where we think a Republican president or any president would be given these economic conditions.
But this is terrible underperformance. I mean, imagine what these results would have looked like if unemployment was 5.7 percent or 6.7 percent? And two years from now, it`s very possible Donald Trump will not be running as such a good economy as he has now, and then what?
John Heilemann, the news media always uses the word "gridlock" as if it`s a negative. There is such a thing as good gridlock, and that`s when the gridlock is stopping bad government. And we can only wish those interested in good government, we can only wish there could have been gridlock for the last two years in the Congress. The Democrats are now positioned to stop anything and everything that Donald Trump wants to do legislatively.
HEILEMANN: Yes. I mean, look, I mean, gridlock in some sort of instances, Lawrence, as you suggest, is a synonym for guardrails.
HEILEMANN: And there`s a reason why the framers and the founders split the legislative body into two, the legislative branch has an upper house and a lower house, and part of the design there was so that those houses could be controlled by opposing parties. There were other reasons for the different designs of the more representative House of Representatives than the way the Senate is designed, but there was a case it was forethought about the notion that you would want to a context in which Republican could control, one Democrats could control another, and that would force -- it would keep either side from being able to enact extreme policies and it would cause both sides to have to meet somewhere in the middle and compromise. And that is where we`re headed towards now, and I think that`s a big part of the reason why they now control the House because people did in fact want the gridlock we`re describing.
O`DONNELL: And, Wendy Sherman, the president steps out on the stage today. He demonstrates to the country his wild incoherence, aggressiveness with reporters to a level that we`ve never seen, literally trying to get the microphones grabbed away from the reporters, utter chaos in a White House press briefing room. And the notion that the House -- the Democrats and the House of Representatives will sit there in opposition to everything that that president wants to do could be very appealing to a vast majority of voters at this point.
SHERMAN: I agree with that. And if you look at the comparison between I think the panic that the president was feeling in that room and the calm of Nancy Pelosi who is likely most definitely going to be the speaker of the House again, a woman who really understands how to hold that caucus together.
A lot of people don`t think that Congresswoman Pelosi is the greatest television communicator in the world, but let me tell you something, she can communicate with her caucus, she can get things done. And, you know, that`s something about a lot of the women coming into the Congress. They`re about getting the job done.
We`re often called to do the cleanup. I think it`s time for us to do the cleanup again.
O`DONNELL: And, Ezra Klein, the house ways and means committee as well as the finance committee controlled by Republicans, they both have the right to get any tax return they want, including mine or President Trump`s. And so, Richie Neal who`s the new chairman of the House and Ways Committee will be able to request that. That request actually goes to the treasury secretary, and treasury secretary doesn`t really have any discretion, but we are likely to see some kind of fight between the Ways and Means Committee chair and the treasury secretary over the president`s tax return and the notion that that same president will then be trying to cooperate in some way with the House of Representatives on legislation is just inconceivable.
KLEIN: I think this was something that was really interesting in the press conference today. Donald Trump came out and he said, if you investigate me, I won`t work with you on legislation.
O`DONNELL: Right, yes.
KLEIN: If you don`t investigate me, I will work with you on legislation. He put those things as opposition, which is often not how they`re done.
There are a couple of interesting ideas embedded in that. One is whether Democrats want to work with him on legislation, whether that`s good for them, which I think is pretty open question.
But the other is that Democrats are going to have this pretty difficult choice. And it goes to Speaker Pelosi who`s an incredibly disciplined leader and a very disciplined tactician. Do they want to run this where they`re creating normalcy and trapping Donald Trump in policy?
Do they want to basically run a strategy they would have run against any Republican president, put forward minimum wage, put bills, try to get him trapped in his bad ideas? Or do they want to run investigations, get him trapped in scandal, have high stakes confrontations? That I think is the going to be the defining tactical choice for them in the next couple of years.
O`DONNELL: Ezra Klein, John Heilemann, Wendy Sherman, thank you very much for starting us off on this important night. Appreciate it.
And when we come back, Congressman Eric Swalwell, an important member of what will be the new majority of the House of Representatives will join us with his reaction to the Democratic -- what the Democratic House of Representatives will do to protect special prosecutor`s investigation in the United States.
And Jill Wine-Banks will join us with her view of how special prosecutor Robert Mueller can protect his own investigation from interference by a new acting attorney general.
O`DONNELL: Imagine where we would be tonight if the Democrats had not won the House of Representatives. We would be living in a hugely different world. President Trump would have fired his attorney general today, as he did, but he would have nothing to fear from a House of Representatives controlled by Republicans if his new acting attorney general fires Robert Mueller or eliminates the special prosecutor`s budget or tries to interfere with the special prosecutor in any way. A Republican House of Representatives would cheer all of that.
But, tonight, all of that is different. Tonight, the new Acting Attorney General Matthew Whitaker has to worry about a Democratic House of Representatives investigating him personally, as well as the president of the United States for obstruction of justice if Matthew Whitaker interferes with the Mueller investigation. Matthew Whitaker should have a very short run as acting attorney general because he will be out of a job as soon as the Senate confirms a new attorney general.
The Senate will presumably do that early next year after Mitt Romney has been sworn in as Utah`s new junior senator. Today, Mitt Romney tweeted: I want to thank Jeff Sessions for his service to our country as attorney general. Under Acting Attorney General Matthew Whitaker, it is imperative that the important work of the Justice Department continues and that the Mueller investigation proceeds to its conclusion unimpeded.
As acting attorney general, Matthew Whitaker will be subject to the recusal guidelines that gave Jeff Sessions no choice but to recuse himself from supervising the investigation of the Trump campaign and of the president. If Matthew Whitaker follows the recusal guidelines and chooses to recuse himself, then nothing would have changed in the Mueller investigation.
Matthew Whitaker is 49 years old. He will have a long professional career after the Trump presidency is over. He has to ask himself tonight, how much is he willing to risk that career by obstructing justice for Donald Trump? Is he willing to risk getting disbarred as a lawyer? Is he willing to risk becoming the third attorney general of the United States convicted of a crime, the previous two were both Nixon attorneys general whose lives were ruined by their work as attorneys general for a criminal president of the United States?
If Matthew Whitaker obstructs justice for Donald Trump, he will not get away with it, and Donald Trump will not get away with it because the Democrats won the House of Representatives.
Joining us now are Matt Miller, former spokesperson for Attorney General Eric Holder and an MSNBC contributor, and Ari Melber, MSNBC`s chief legal correspondent and host of "THE BEAT", weeknights 6:00 p.m. on MSNBC.
Ari, I want to start with the legitimacy of this transition here. The new acting attorney general is being appointed under the Federal Vacancies Reform Act, which only applies if an attorney general, for example, resigns or dies in office or something like that. The complication here is that Jeff Sessions was fired. He wrote a letter today saying that he was resigning at the request of the president.
So as you read that letter, Ari, is that a resignation letter that complies with the necessities of the Federal Vacancies Act or was he fired? Is it not legal to put in this acting attorney general this way?
ARI MELBER, MSNBC HOST: It`s a great question, Lawrence. In short, he was very clearly fired in every sense of the word. Legally, the letter at least gives the administration a framework and cover to assert that the attorney general himself states that he resigned, and thus they will say that`s what occurred.
O`DONNELL: Matthew Miller, this acting attorney general wrote a piece where he said it would cross a line. It would be improper for the special prosecutor to investigate the family businesses of Donald Trump. That is, of course, not true because the authorization of this special prosecutor very specifically says it`s to investigate possible foreign interference in the Trump campaign, the presidential campaign.
But also it adds -- or as Rod Rosenstein wrote this authorization, any matters that arose or may arise directly from the investigation. That authorization reads as a full authorization for anything, anything that Robert Mueller finds after having originally gone in with the original mandate to investigate the election.
MATTHEW MILLER, FORMER SPOKESMAN FOR ATTORNEY GENERAL ERIC HOLDER: Yes, you`re absolutely right, Lawrence. And that`s just one of the troubling comments that Matthew Whitaker has made about the Mueller investigation. I think the most notable comment, at least in my opinion, that he`s made is actually saying publicly that the Trump Tower meeting, which is at the heart of the investigation, is a meeting that anyone would have taken.
I don`t know how he can fairly oversee this investigation and give anyone confidence about the integrity of the investigation when he has publicly prejudged the legality of something that we know Mueller is investigating is at the heart of the investigation. I think the real key question going forward is whether he`s going to follow department of justice rules, whether he`s going to follow the advice of the career ethics officials who advise the attorney general on questions like this and recuse himself.
I think both the totality of his public comments, about the investigation raise a question in the public`s mind, raise an appearance problem that is unattainable for the acting AG. And also the fact that he was a chair to campaign for Sam Clovis who is a witness before the grand jury who`s been interviewed in this case -- Sam Clovis said he`s a good friend of Matthew Whitaker`s and close to the person who hired George Papadopoulos, oversaw him at the Trump campaign, I think it`s very likely that career ethics officials will recommend that Whitaker recuse himself.
And if he refuses to follow that recommendation, I think it`s a sign that the fix was in from the beginning. Trump has told people apparently that he won`t recuse himself. I think that will be a sign that Trump had sent him in there just to shut this investigation down one way or the other.
O`DONNELL: And Ari, presumably Whitaker has told the president that under no circumstances will he recuse himself because the president has said he would never put anyone in that job that`s going to recuse himself. But that leaves Whitaker another choice. After he presumably will refuse to recuse himself even if advised to do so by the professionals, he then has the choice of do I interfere with the Mueller investigation or to what extent do I interfere with the Mueller investigation? And that`s where he starts to enter criminal possible liability of obstruction of justice especially after refusing any counsel given to him by professionals about recusal.
MELBER: Look, you hit this in your reporting tonight, Lawrence that there are past attorney generals who wound up serving jail time because they used and abused their power of DOJ to protect a criminal president. No greater authority on the Criminal mindset than Rick Ross has talked about walking in the courtroom sipping on a beverage, I know the judge so I got a lot of leverage, that`s gangster. That`s a gangster attitude that says you`re above the law because you have people that will corrupt the law.
And so it is very real tonight that we have public evidence that Donald Trump and Mr. Whitaker share one priority, which is overseeing the justice department to kneecap the Mueller probe and not recuse. Donald Trump`s one public stated beef with Sessions was that he recused under the guidance that you just cited that he`s supposed to under those DOJ rules. And Mr. Whitaker has said on television that he thinks there are ways to kneecap the Mueller probe like defunding it or putting pressure on it.
So that`s all out in the open. And the question that is very much on the minds of I think the incoming Democratic majority, and you put your finger on their oversight, is what you do if you have a gangster mentality in the White House trying to subvert the DOJ.
O`DONNELL: Well, we saw the gangster mentality of literally the Nixon gang in the justice department and the Nixon`s attorney general.
And Matt Miller, Matthew Whitaker has to be thinking about John Mitchell. He has to be thinking about those Nixon attorney general precedents. And after he takes that oath of office in this job and after he is surrounded by the justice department professionals who are advising him on a daily basis and watching him and he knows they`re watching him, and he knows they will be available and ready to testify against him under oath in any kind of obstruction of justice case, he has to be very nervous in this job tonight. This is not an easy place for him to do what Donald Trump wants him to do and then survive with his life as he knows it.
MILLER: You know you`re absolutely right. There are strong institutional pressures at the justice department. There`s a strong culture thereof following the rules, the culture of independence that will argue for him to behave responsibly in this job, that will argue for him to recuse himself if that`s what the career ethics officials recommend.
But on the other hand, on the other side of that, you have the fact that Donald Trump put him in this job with a very clear expectation that he will not recuse himself. Look, there are dozens of people at the justice department that Trump could have picked to be acting attorney general. The natural choice would have been the deputy attorney general. That`s what every -- just about every other president does in this circumstance. But there are other Senate confirmed people as well.
He reached down into the justice department to find this one person who has a demonstrated public hostility to the Mueller probe. I suspect he has some assurance implicit, maybe explicit that he will not recuse himself. And he -- the president at least thinks that some of the close calls, maybe close call of whether to approve a subpoena to the president, the close call of whether to authorize the release of a report to Congress, he thinks Matthew Whitaker will side with him, the president and not with Bob Mueller, and that`s why he got this job.
O`DONNELL: Well, Donald Trump might be the second Republican president to get this wrong because Richard Nixon believed that Robert Bork was going to be his Matthew Whitaker in the justice department as acting attorney general and block the special prosecutor`s investigation. That is not what Robert Bork did and I`m going to report later in this hour exactly what Robert Bork did.
We will see if Matthew Whitaker is a Robert Bork. And if he is, that`s a good thing for America, actually.
Ari Melber, Matt Miller --
O`DONNELL: -- thank you both for joining us in this discussion tonight. Really appreciate it.
And when we come back, one of the big winners last night because he will now move into the majority of the House of Representatives is Congressman Eric Swalwell. He will join us.
O`DONNELL: Today, Congressman Eric Swalwell, a member of the House Intelligence Committee tweeted, "It`s time the protect Mueller. There`s already bipartisan support in the Senate. House should pass legislation immediately. Trump may act like he`s above the facts but he`s not above the law."
Joining us now, Democratic Congressman Eric Swalwell from California. Congressman, congratulations on your re-election last night which was never in doubt.
REP. ERIC SWALWELL (D-CA), INTELLIGENCE COMMITTEE: Thanks, Lawrence.
O`DONNELL: But I want to begin with congratulations about this new feeling you`re having tonight, which is being in the majority of the House of Representatives. How does that change things?
SWALWELL: Greatly, it changes things, Lawrence. And I`m also thrilled that 25 candidates and counting are in their 40s and under. So the future will have bright, new energetic candidates coming to Congress who are ready to stand and defend our democracy. Now, if we had lost the House of Representatives last night, I`d be much more worried. But I`m just honored to join a caucus that is going to defend our democracy now seeing what the president continues to intend to do with it.
O`DONNELL: And if you lost the House of Representatives last night, I`m not sure you would have bothered to tweet today about protecting Robert Mueller. That`s would have been impossible.
SWALWELL: That`s right. We would be much more powerless than we are. We`re actually able now to insist that Bob Mueller and his role is protected, that we preserve the documents that may be destroyed in this turnover at the Department of Justice and insist that this new acting attorney general recuse himself because of his conflicts of interest.
O`DONNELL: And Devon Nunez, the chairman of the House Intelligence Committee was re-elected last night in California but he`s now been re- elected into utter powerlessness. Adam Schiff, Democrat presumably will become the chair of your committee, Senate Intelligence Committee. How does that change what the Senate -- what the House Intelligence Committee, I`m sorry, will now do?
SWALWELL: Well, the days of free passes, looking the other way in this olly olly oxen free environment that the president has enjoyed are over. But I think Adam Schiff under his leadership, we will fill in the gaps of the Russian investigation not to look backward but to make sure we protect upcoming elections. But also that we will conduct all of the investigations that the Republicans were unwilling to conduct.
We don`t want to lead with investigations, Lawrence. I think on infrastructure, the dream act, background checks, reforming our democracy, prescription drugs, there`s opportunities to put bills on the president`s desks but we`re not going to look the other way. And that`s happened far too long and we`re going to start to defend this democracy.
O`DONNELL: People have been trying to see Donald Trump`s tax returns since he became a presidential candidate. There`s never been a chance to do that. Now there is. House Ways and Means Committee chair has the power to request that.
They did that. They got Richard Nixon`s tax returns when they suspected Richard Nixon of being involved in some tax issues, and they found $500,000 worth of underpayment by Richard Nixon on his tax returns. They not only have the power to do that. They have the power to then reveal those tax returns to the full House. Those tax returns could be, if revealed to the full House by the Ways and Means Committee of interest to the Intelligence Committee, couldn`t they?
SWALWELL: That`s right. Actually, in the Ways and Means Committee and other committees of jurisdiction. And we shouldn`t do it for any voyeuristic interest. We should do it because the American people have the right to know if the president is a cheat. And if you look at that "New York Times" investigative report, that exhaustive report, it suggests that he`s a cheat and that his financial interests are in conflict with our domestic and foreign policy interests.
And we see that playing out in Saudi Arabia. We see that playing out in Turkey. We see that playing out with easing sanctions with China on ZTE so that he can get a $500 million loan the same week on an Indonesian property from the Chinese. So we certainly want to know if the president is corrupt and if that affects decisions that the White House makes.
O`DONNELL: The Congress was actually given this power to obtain those individual tax returns specifically for this reason, specifically for the possibility of corruption either by the president or a member of his administration. And so that is the very specific use that was anticipated in giving Congress this power in the first place.
SWALWELL: That`s right. And over the last 40 plus years, only two presidents didn`t fully comply with that, Richard Nixon and Donald Trump. And boy, do they have a lot in common. The others were much more forthcoming and I think that should tell us everything we need to know, Lawrence.
O`DONNELL: Congressman Eric Swalwell, congratulations on your new status as a member of the majority party in the House. Thank you very much for joining us tonight.
SWALWELL: Thanks, Lawrence. My pleasure.
O`DONNELL: And when we come back, Jill Wine-Banks will join us with her unique experience as having been in the office of a special prosecutor with what this new acting attorney general can mean to Special Prosecutor Robert Mueller. That`s coming up.
O`DONNELL: The firing of Jeff Sessions today has been compared to the Saturday night massacre in which President Richard Nixon fired his special prosecutor after his Attorney General Elliot Richardson, refused to carry out that order. Attorney General Elliot Richardson resigned instead of carrying out the order from President Nixon. The deputy attorney general then resigned, refusing to carry out President Nixon`s order.
And then-Solicitor General Robert Bork carried out the order by Nixon to fire Archibald Cox, but then under public pressure, when a new special prosecutor was appointed, Robert Bork issued a new justice department rule protecting the special prosecutor.
That rule said, "The attorney general will not countermand or interfere with the special prosecutor`s decisions or actions. The special prosecutor will determine whether and to what extent he will inform or consult with the attorney general about the conduct of his duties and responsibilities. The special prosecutor will be provided with such funds and facilities to carry out his responsibilities, as he may reasonably require. The special prosecutor may, from time to time, make public statements or reports as he deems appropriate and shall, upon completion of his assignment, submit a final report to the appropriate people or entities or Congress."
And so, the question tonight, is the new acting attorney general as honorable as Richard Nixon`s acting Attorney General Robert Bork? Here is the man who Richard Nixon installed as his acting Attorney General Robert Bork after he fired the special prosecutor who was investigating Richard Nixon and his administration.
(BEGIN VIDEO CLIP)
ROBERT BORK, SOLICITOR GENERAL TO RICHARD NIXON: I can only say that I`m not going to walk out of this job, out of this town as the man who in any way compromised investigations or prosecutions.
(END VIDEO CLIP)
O`DONNELL: That was Robert Bork, who guaranteed the new special prosecutor then, Leon Jaworski, full independence after Richard Nixon ordered the firing of the first Special Prosecutor Archibald Cox. Our next guest lived through all of that.
Joining us now, Jill Wine-Banks, former assistant Watergate special prosecutor and an MSNBC legal contributor. And Jill, I can only imagine what it was like for you during the Saturday Night massacre, seeing your boss, special prosecutor, fired. But then Robert Bork, very much I think to the country`s surprise, protected, deliberately did everything he could to -- and issued a rule that protected your investigation.
JILL WINE-BANKS, FORMER ASSISTANT WATERGATE SPECIAL PROSECUTOR: I think I know how the Mueller team feels tonight. There has to be huge anxiety. We have an acting attorney general now, who has called the investigation a hoax and a witch hunt and therefore has exhibited what I would consider to be a conflict of interest in terms of overseeing it.
So they must be very anxious about what will happen and I`m hoping that they`re taking precautions to make sure that they protect themselves, at least until the new Democratic House can take action to formally and officially protect them through legislation.
O`DONNELL: Jill, on the night that it happened, Robert Bork was the Matthew Whitaker of his day. He was condemned by Liberals and Democrats all over the country for carrying out the firing of the special prosecutor. But what most of those people who condemned Robert Bork did not really pay attention to after the fact is that Robert Bork did not, apparently, interfere with your investigation.
WINE-BANKS: He did not. And he actually -- there was a debate that night and the next morning as to whether we had been fired or just Archie Cox had been fired, just the special prosecutor. It turned out that we had been abolished but Bork did reappoint the entire office. So he did take the steps but that was because of a huge public outcry.
Mail in the old days, no e-mail, but actual snail mail was delivered in huge quantities to our office, to the Congress, and to the White House. And the reaction was three days after the firing, Nixon had to make a U- turn. He said, "I will give you the tapes. I will appoint a new special prosecutor." But much like what happened with us, we didn`t trust the new special prosecutor. Why was he appointing someone new? Why didn`t he just bring back Archibald Cox?
So why do we need a new attorney general? And what will this mean in terms of what he can do to stymie the investigation? He has already expressed a distrust of the investigation so he can start putting real holds on what they are able to do, who they can indict, who they can investigate, who they can go forward with. So it can be a real showstopper without firing Mueller.
That`s why there is a big protest planned for tomorrow by Indivisible, and I believe, Move On is also doing this, at 5:00 tomorrow in Chicago, anyway. So I don`t know if it`s nationwide at 5:00. There will be a protest about the act of firing Sessions. And although he technically said he resigned, he resigned with the request of the president so that`s firing.
O`DONNELL: And the history of the Nixon era shows that Matthew Whitaker has plenty to fear about being investigated himself for obstruction of justice, as acting attorney general, if he does, in any way, conspire with Donald Trump to do that.
Jill Wine-Banks, thank you very much for joining us tonight. I`m sure we`re going to have a lot to say about this as we continue covering it.
Tonight`s last word is next.
O`DONNELL: Time for tonight`s last word.
(BEGIN VIDEO CLIP)
AYANNA PRESSLEY (D), MASSACHUSETTS CONGRESSWOMAN-ELECT: We have affirmed that while this could go down as the darkest time in our history, we won`t let it be. And instead, we will be defined by our hopes, not our fears.
(END VIDEO CLIP)
O`DONNELL: Ayanna Pressley gets tonight`s last word. She is the first African-American member of the House of Representatives elected in Massachusetts.
"THE 11TH HOUR WITH BRIAN WILLIAMS" starts now.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END