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Democrat Kyrsten Sinema takes lead, TRANSCRIPT: 11/8/2018, The Last Word w Lawrence O'Donnell.

Guests: Michael Moore, Jed Shugerman, Lisa Graves, Harry Litman, Max Rose

Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: November 8, 2018 Guest: Michael Moore, Jed Shugerman, Lisa Graves, Harry Litman, Max Rose

LAWRENCE O`DONNELL, MSNBC HOST: I don`t know what you`re talking about.

Rachel, because --

RACHEL MADDOW, MSNBC HOST: I think I missed your birthday this week.

O`DONNELL: Of course not, because that would mean I`m aging and you know I don`t.

MADDOW: You`re --

O`DONNELL: Rachel, Michael Moore -- I`m changing the subject, Rachel, just follow my lead, I`m changing the subject --


O`DONNELL: -- to Michael Moore who`s -- I have a private life, Rachel, OK? So --


MADDOW: Sorry.

O`DONNELL: Michael Moore is going to be my first guest. He is very pleased with the Democratic victories that we saw on Tuesday night and that we continue to see today, more of them today.

And the victories are now moving up into where the exit polls were actually projecting them on Tuesday for Democrats. The exit polls were saying they were going to take at least 30 seats, maybe more. They have now taken 30, and they may be taking more.

And so, Michael Moore is one of those people who`s not looking at it with any kind of disappointment at all on what happened Tuesday.

MADDOW: No. And the way this is -- we should have known this. I think in some ways we did know this on Tuesday night when the Democrats were targeting so many seats in California, and we know that it takes a month to count in California. I mean, Democrats are over 30 seats flipped right now. They may get up to 35, 36, 37 very quickly.

And I think -- at least I was focused on California in case those California seats were the difference in terms of who controlled the House. But that`s not where they`re coming in. They`re coming in terms of how big the Democratic margin is going to be.

It looks like it`s very close to what people were saying was to count as a very large Democratic wave. Plus, there are Senate seats that are still not decided. Kyrsten Sinema right now is up in Arizona.

O`DONNELL: Yes, and these kinds of numbers used to be called a wave, but it seems that the anticipation about the Democrats possibly pulling off some miraculous wins in places like Georgia and Texas adjusted the way people saw this. But we have never, ever been waiting for results in Georgia or Texas to decide whether it`s a Democratic wave.

MADDOW: And not to mention the fact that Georgia -- that Georgia fight is still on. And the Florida fight is still on.

O`DONNELL: Exactly, exactly.

MADDOW: Both for the governor`s race and the Senate race. I mean, stuff is going nuts right now in Florida. We`re just talking about what portion of my staff we`re going to send to Broward County in the morning at this point because of how hot it is there right now.

O`DONNELL: Yes, that is a real story.

Thank you, Rachel.

MADDOW: Thanks, Lawrence.

O`DONNELL: Well, we do have breaking news tonight and that is that the election is not over. We have serious breaking news.

Democrats are continuing to win. There are 11 seats in the House of Representatives that do not yet have a winner. That`s after four races were decided today and three of those were won by Democrats today including Lucy McBath in Georgia who first appeared on this program in 2012 when she was tragically sharing the pain of the loss of her teenage son Jordan who was murdered by a white man in Florida who decided that the music coming from the car where Jordan and his black friends were was just too loud. And that`s why her son was killed.

Lucy McBath won the Georgia congressional district that was held by Republican House Speaker Newt Gingrich and has been solidly Republican today. Lucy McBath no doubt owes her victory in part to the voter turnout created by Democrats statewide excitement, about supporting Stacey Abrams in the Georgia governor`s race, which is one of the elections in which we still do not have an official winner.

Two other Democratic women were declared winners of House seats today. Kim Schrier won the eighth congressional district in Washington, a district which Republicans have never lost until today. Thirty-one-year-old Katie Hill will be one of the youngest members of the House now that she has won California`s 20th congressional district in northern Los Angeles County.

And there`s breaking news tonight in the undecided Senate race in Arizona, as Rachel said, for the Republican seat that is currently occupied by the retiring Jeff Flake. Democrat Kyrsten Sinema now has taken the lead. At this hour, Sinema has more than a 9,000-vote lead with 83 percent of precincts reporting and the undecided Florida Senate race continues to tighten.

Republican Rick Scott now leads Democrat Bill Nelson by less than 16,000 votes. That margin is narrow enough to require a recount under Florida law. Democrats currently have a net gain of 30 seats in the House of Representatives. That number could continue to grow. Thirty seats is exactly -- exactly what the Democrats won in the House of Representatives in 2006 in what was then reported as a wave election for Democrats.

A hundred and one women have won House seats. The Democrats picked up seven governorships. The Republicans picked up one governorship.

According to "The New York Times" 317 House districts swung to the left as compared to the 2016 election. The average district nationwide moved 10 percentage points to the left this year. And districts where Republicans won were caught in that movement to the left as well, 171 of the districts that Republicans won moved to the left in the vote count this year.

Eighteen-year-old David Hogue who became politically active after a mass murderer killed 17 people at his high school in Parkland, Florida, this year voted for the first time in his life in this election. Not all of the candidates that he supported won, and yesterday, David Hogue said this is the start. It`s going to be a long road. It is a call to action.

Leading off our discussion now, Michael Moore, Academy Award winning documentary filmmaker whose latest film is "Fahrenheit 11/9".

Michael, thank you very much for joining us tonight.

And I want to get your reaction to what we`ve seen so far in this election, because counting the votes is continuing.

MICHAEL MOORE, WRITER AND DIRECTOR, "FAHRENHEIT 11/9": It is an amazing victory. And I am not one to come on this show with a lot of optimism, as you know from the past. Nobody should miss the point, all the points you just made were right on, especially the point that this victory on Tuesday was larger than the Tea Party victory in 2010, larger than the huge wave where the Democrats took over Congress in 2006.

It can`t be stated enough or strongly enough just how over the top awesome this victory was on Tuesday. And what you just pointed out I think is so important. Not just the victory in terms of number of seats, not just the fact that millions more Americans voted for Democrats as opposed to Republicans. Millions more, OK, the so-called popular vote which we already know that we are the majority because we won by 3 million two years ago, but this was huge.

But also what you just said, how the 317 districts that moved further to the left, 117 districts that Republicans actually won but the number of people who came out and voted for the Democrat, especially the progressive Democrat, that moved. It all moved. This is the new America that you`ve got on your screen right now. That is the America that we live in.

And where it gets really I think confusing for some people when we put up the map and we show the big red swaths of red across the country, it has a weird and wrong impact on people because it makes it look like the country`s so red. But people don`t live in those large desert and mountain and prairie areas. I mean people live there, but small, small numbers of people live there.

Each congressional district is the same exact number of votes, roughly 775,000 each. If there was a way to do the math where we actually built the map and showed by population how large this area of the country is or this area is by population, you would see the bluest of blue -- you`d need sunglasses, there would be so much blue on the screen on the map. If we actually showed the map by the size of its population, not the size of how many acres the state has.


MOORE: So this was an election -- this was -- and people are like oh, they have to set it, and that`s because that`s not a Democratic election. That`s not a one person, one vote. Not true democracy, doesn`t mean that Delaware gets the same number of votes in the Senate as California with 40 million people who live there.

If it was a true democracy, the Senate would be proportional to the actual numbers of the country. So, we have to fix that. We have to get rid of the Electoral College. We need to have preferential voting systems where you vote your first choice, and your second choice. We get a more accurate reading of what people really want representing them. That`s to come.

This was a huge first step. It`s one down, two to go. The next one to go before the Senate is probably going to be the White House. And that may happen within these two years depending on what happens in Congress.

How far those votes in the Senate -- remember five -- six, Republicans would have to have -- what John Kennedy called a profile in courage, a moment of conscience if it comes to a point where the Mueller investigation or the investigation the House committees are going to do in terms of showing just how badly Trump has violated the law, how much will Republicans be able to tolerate their president being a lawbreaker, being a criminal? We`ll find out. But I think this is very exciting time for us.

And everybody -- just the shots you`ve been showing all night on MSNBC of these protests in the street, all in America, that started 5:00 p.m. on the West Coast, it happened local time all over the place, I`m getting reports from people all over -- in the smallest of towns where there`s 100 people there. And there`s only 1,000 people in the town.

So, it`s -- this is going to have to continue, though. We`re not -- we`re going to have to be in the streets a lot, I`m afraid, because Trump believes he`s going to get away with what he thinks he`s getting away with now in the Justice Department with Matt Whitaker. So that`s my take on everything.

O`DONNELL: Michael, to that point imagine a world today in which the Democrats had not won the House of Representatives. They came up one shy or whatever it was and they did not win the House of Representatives, the current what some are calling the fake attorney general because this title of acting attorney general legal scholars are saying -- many legal scholars are saying he`s been illegally installed there, this is an unconstitutional appointment. So I am reluctant to even give him the title.

He has the office, he can sit in that chair a that desk, but I don`t know what title he really has. Imagine that that person is sitting in the Justice Department tonight in what was going to be a Republican controlled House of Representatives, instead of what he`s living with which is the knowledge that come January, they can pull him into the Judiciary Committee at the House of Representatives, put him under oath and make him answer every question about what he said to Donald Trump before he was appointed and what Donald Trump said to him.

And those questions will be asked under oath, and that was not going to happen without that win Tuesday night.

MOORE: You`re absolutely -- you`re so right to say that. Imagine if we hadn`t won on Tuesday night, first of all, I think there are so many people anticipating that possibility after what happened in 2016. I heard that pharmaceutical companies were actually developing an anti-depressant just for Democrats, a Democratic anti-depressant.

But fortunately, they don`t need that now. They can go back to the lattes and cappuccinos for their medicinal purposes. But seriously though, I think that this is so critical what`s going on in the Justice Department, because what you have now, we already had a constitutional crisis with Trump`s behavior prior to the election. We now have a constitutional crisis within the constitutional crisis. We now have a state of emergency within the state of emergency.

This has gotten very dangerous. And, you know, it`s -- you know, we haven`t even touched on what happened in Thousand Oaks today with the people that were killed -- we live in a country now where an American can go into a bar and kill 12 people, go into a synagogue and kill 11 people, can go into a Kroger looking for black people and kill black people. We are in a very, very dangerous situation. All of us have to be up and active, we have to be on guard.

And Ruth Bader Ginsburg, if you`re recovering tonight and watching this, seriously I would do anything for you, I would literally donate a rib for you. Although my ribs might not be -- might take up your whole body, but I`m just saying we`ve got a lot of things in front of us here, a lot on our plate, Lawrence.

But the people are going to be heard and they`re not going away just because they won on Tuesday night.

O`DONNELL: Michael Moore, thank you very much for joining us tonight, starting us off tonight. Really appreciate it.

MOORE: Thank you, Lawrence. Thank you so much.

O`DONNELL: Coming up, Steve Kornacki will join us because it is still election night in America. We`re still counting votes and we`re going to have the latest on the Arizona Senate race where the Democratic candidate Kyrsten Sinema has taken the lead. And also the Senate and governor races in Florida which continued to tighten.

But, first, there is a coup at the Justice Department, according to some legal scholars who believe that Donald Trump`s appointment of the so-called acting attorney general is illegal and unconstitutional.


O`DONNELL: Tonight, we have a coup at the Department of Justice. President Trump has dumped an attorney general who was confirmed by the United States Senate and illegally replaced him. That`s according to several legal scholars analyzing the president`s actions.

In "The New York Times", former acting solicitor-general in the Obama administration, Neal Katyal, coauthored an op-ed piece with Attorney George Conway who happens to be Kellyanne Conway`s husband. They say Mr. Trump`s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It`s illegal, and it means that anything Mr. Whitaker does or tries to do in that position is invalid.

There are three points of law relevant to this situation. First and most important is the Constitution of the United States that says principle officers of the government, cabinet members, meaning, must be confirmed by the United States Senate. But the Federal Vacancies Reform Act says that the president can fill a vacancy in the department with a senior official in that department who has served more than 90 days in that department.

But that law does not take precedent over another law which specifically describes how a vacancy in the office of attorney general should be filled within the Justice Department. That law requires that deputy attorney general, in this case Rod Rosenstein, become the acting attorney general, and that is one of the many reasons why we have never had an acting attorney general who has not been confirmed by the United States Senate to a role such as deputy attorney general or solicitor-general or associate attorney general. All of whom are specified in the law that determines the order of succession to temporarily fill a vacancy by a departing attorney general.

An illegal installed, unconstitutional acting attorney general can immediately corrupt and jeopardize virtually all of the actions of the Department of Justice.

Here`s how Neal Katyal explained that point earlier tonight to Chris Hayes.


NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: Every litigant in this country who`s facing the Justice Department can make these arguments and say, hey, you`re trying to put me in jail, Justice Department? You don`t have the authority. You have a fake attorney general.


O`DONNELL: Joining our discussion now, Jed Shugerman, professor at law at Fordham University. Also joining us, Lisa Graves, former chief counsel for nominations for the Democrats in the Senate Judiciary Committee and the former deputy assistant attorney general.

Lisa Graves, you have worked on the confirmation process for attorneys general. Your reaction tonight to someone being installed as an acting attorney general who is not coming from a position that was confirmed by the United States Senate like a deputy attorney general or a solicitor- general?

LISA GRAVES, FORMER STAFFER, SENATE JUDICIARY COMMITTEE: Well, this is rule really a coup at the Justice Department orchestrated by Trump. It`s a premeditated assault on the law. And he installed someone who appears to have been chosen precisely to do his bidding, to try to shutdown this lawful, legitimate and very serious investigation which has netted significant criminal prosecution, criminal convictions already.

And I think when you look at someone like Whitaker, what you see is someone who has a cloud over him already. He`s someone who`s expressed opinions, attacking the independent counsel, attacking special counsel and the investigation. He`s someone who worked for a dark money group as the blog detailed this morning. He`s someone who was a board member of a scam operation that was just blocked earlier this year for basically trying to bilk inventors out of their money in a major multi-million dollar fine from the government.

And so, he`s someone who`s unfit for this role. And it would be inappropriate for the Justice Department to be helmed by this person especially as you point out, Lawrence, the Vacancies Act, the Succession Acts, say the Deputy Attorney General Rod Rosenstein should be sitting in that role as acting until someone else is nominated and confirmed. Not Mr. Whitaker, Trump`s handpicked coup master.

O`DONNELL: And, Jed Shugerman, even according to the Vacancies Act, which is not applicable here according to most interpretations, you`re supposed to choose the top person in the department. And the chief of staff to the attorney general is nowhere near the top person in the department.

JED SHUGERMAN, PROFESSOR OF LAW, FORDHAM UNIVERSITY: Nowhere near and also not confirmed by the Senate, so I agree with Lisa. There is this constitutional argument you cited before. But there`s an additional argument that you don`t have to turn to constitutional interpretation. The statute itself says that it doesn`t apply to the situation.

So, the statute says that it doesn`t apply when a statutory provision expressly authorizes the head of a department, here the attorney general, to designate an officer or employee. So what you have here is a statute that in another part of the statutes, it designates and allows the attorney general to designate. So, by its own words, the Vacancies Reform Act doesn`t apply.

It also has an absurdity because there`s another part of the act which says if the attorney general and it deputy attorney general are unavailable, then it designates the associate attorney general. It would be absurd for a statute to say if we`re missing two people, we`re going to designate a third. Oh, but wait, if we`re missing one person, then the president gets to nominate his spy, lackey Matt Whitaker. That doesn`t make sense for the statute.

And there`s a third reason why the statute shouldn`t be applied this way and that`s because you dig into the purpose of why the statute was written. The VRA, Vacancies Reform Act, was passed in 1998 to limit the discretion to hand pick his crony. And the other statute I`m talking about here was passed right after Watergate to specifically prevent a president of doing what`s happening right now.

So, close textual reading, making sense of the logic of the statute, or thinking about the purpose of the statute, all of those readings would make sure that Whitaker is not validly an attorney general right now.

O`DONNELL: And, Lisa, when you consider the post-Watergate supplement to this law, that was after we sought two Republican generals in a row, in the Nixon administration, convicted of federal crimes. And so, this was specifically intended to clarify what happens in that order of succession.

GRAVES: That`s exactly right, and that law was very important for those reasons because of that live example that happened right before Congress made these changes. Trump has thumbed his nose at that.

You know, this is really an outrage. The Department of Justice has operated under these independent rules for decades now, and I was proud to walk into that Justice Department on Pennsylvania Avenue where engraved it says, the place of justice is a hallowed place. This defiles the Justice Department, and it calls into question every case and certainly any action to limit, to curtail, to take away funding for Mueller in his lawful and legitimate and important crucial investigation surrounding this president.

O`DONNELL: And there`s a bipartisan agreement on this. We have former George W. Bush, Justice Department official John Yu writing today Whitaker cannot serve as acting attorney general, despite the Vacancies Act. The statute is unconstitutional when applied in this way.

Jed Shugerman, it seems to me -- I just don`t see any legal opinion that is -- that I can take seriously that counters this.

SHUGERMAN: There is a debate. I mean, I think it`s also very significant when you mentioned John Yoo there, that`s a very conservative scholar who has endorsed very presidential aspects of power. If you have George Conway and John Yoo saying that this is an unconstitutional abuse of presidential power, I think you can take those views pretty far.

There is -- there are differences of opinion here, but I think whether you`re a textualists, an originalists or a proposivist, that covers the basis of constitutional and statutory interpretation. All of them, all of those methods of legal interpretation say that Whitaker is invalid and illegally appointed attorney general here. He should not be able to do anything with those powers.

Let me also say that doesn`t mean that Mueller can`t do it. If Whitaker is invalid, it means Whitaker can`t interfere with Mueller. But Mueller can still do his job because Mueller`s office is valid.

So, this really -- this argument needs to be asserted by Mueller to prevent the interference of Whitaker in his investigation.

O`DONNELL: Jed Shugerman, Lisa Graves, thank you for joining our discussion tonight. Really appreciate it.

SHUGERMAN: Great. Thank you.

GRAVES: Thank you so much.

O`DONNELL: Coming up, the law Matthew Whitaker should be studying tonight, and that is of course the law on federal obstruction of justice. The statute of limitations is the part that he should really take a close look at. That`s next.


O`DONNELL: We have no idea what Donald Trump`s new acting attorney general did today now that he has been called a fake attorney general by legal scholars who insist that his appointment is unconstitutional and illegal. The question for Matthew Whitaker who now occupies the attorney general`s office of the Justice Department is does he think he can get away with interfering in Robert Mueller`s investigation of the president.

We know that`s what the president wants him to do. Donald Trump is that peculiar kind of a criminal-minded person who publicly declares his criminal intent. He has said he wants an attorney general who will work for him personally, who will protect him personally, who will obstruct justice for him personally if necessary and not work for the American people and not protect justice.

Is Matthew Whitaker smart enough to know that he is going to have to testify under oath to the House Judiciary Committee about any interference that he might try to engage in with the Mueller investigation? Is Matthew Whitaker smart enough to know that there is a five-year statute of limitations on the federal crime of obstruction of justice and that the next democratic attorney general who will probably be chosen during the presidential transition two years from now will be empowered to immediately investigate every suspicious thing that Matthew Whitaker might be foolish enough to do as Donald Trump`s fake attorney general?

So how smart is Matthew Whitaker? How stupid is Matthew Whitaker? How reckless is Matthew Whitaker? Judging by his previous public comments as a right-wing pundit, he sounds like the kind of guy who could get himself in serious criminal trouble on day one today in that office at the justice department.

Joining us now is Harry Litman, a former U.S. attorney, and deputy assistant attorney general under President Clinton. Harry, we`ve never seen anything like it. This is a person occupying the attorney general`s office who has not confirmed by the United States Senate. There is criminal jeopardy for this acting attorney general if he, in any way, tries to step into that zone where we know Donald Trump wants him and in any way tries to obstruct justice for Donald Trump.

HARRY LITMAN, FORMER U.S. ATTORNEY AND DEPUTY ASSISTANT ATTORNEY GENERAL: I think that`s right. I mean he`s got one credential only beside a few failed political campaigns and that he`s going to be loyal to Donald Trump, going to be as he`s already been his sort of eyes and ears. And does he have the potential for criminal liability? Of course. I`m sure he`s thought about it but this is probably too much to resist.

All of a sudden he is running the department of justice. He`s a guy until recently who had no role. You know, he was recommended for the chief of staff position by Leonard Leo, same guy who stewarded the Kavanaugh and Gorsuch nominations. He also I`m sure is thinking that at least in the short-term, when he gets hailed, tries to be hailed in front of the Congressional committees that Trump will assert executive privilege and keep him from the hot seat temporarily. But you`re certainly right that down the line if he does anything untoward, he`ll be held to pay.

O`DONNELL: He has to look at that statute of limitations on obstruction of justice tonight and ask himself does he feel safe for the next five years under the statute of limitations on obstruction of justice.

LITMAN: You know that`s right. He certainly envisions. It seems pretty clear to me coming in and being the sort of boot on the neck of the Mueller probe. Now, when might that cross the line to obstruction? There is not much of an indication that he`s got the subtle nuance to see the difference. This is a guy who after all has that Marbury v. Madison, the foundation of the American Judicial system was wrong sided and has any number of views that are at extreme odds with the law of the land.

He`s probably going to have to make it up as he goes. He`s a pretty heavy- handed and confident guy, so maybe he thinks he can take it as it comes. He doesn`t even know, of course, what Mueller has and what Mueller yet. If Mueller presents some really strong evidence against the president, then he`s in a fix I think.

O`DONNELL: Yes. And then there`s the question of if that evidence is presented to him, what might he do in terms of communicating that evidence to the White House.

LITMAN: Right. If there`s anything, he`s clearly broken the law. And I`ll just leave it at that. If it`s middle ground, there are some sorts that he might be able to give general heads up. If he really tries to play the conduit to the White House, that`s not just inappropriate for an acting attorney general but it is unlawful.

O`DONNELL: Harry Litman, thank you very much for joining our discussion tonight. Thank you.

And when we come back, it is still election night in America. We have a Democrat now leading in the Arizona Senate race. That means we need Steve Kornacki. He will be here.


O`DONNELL: Breaking news tonight. It`s not over. It is still election night in America. Votes continue to be counted in the Arizona Senate election. Democrat Kyrsten Sinema has just pulled ahead of Republican Martha McSally. For more on this race and others, we are going to MSNBC`s Steve Kornacki at the Kornacki board. Steve, what is happening in Arizona?

STEVE KORNACKI: Yes, in Arizona, one of the couple of places on the map, Lawrence, where the suspense is kind of building here. Actually, let me show you statewide first of all. This is where things stand. Sinema, the Democrat as you mentioned has taken the lead of over 9,000 votes statewide. That happened this evening.

There`s one big reason for that and one smaller one. The big reason is this Maricopa County. This is where Phoenix is. This is like two-thirds of the state, almost population-wise. This is the current running count in Maricopa.

I say running count because there are still hundreds of thousands of votes left to be added to this. They`re adding them in batches. They added about 125,000 to the Maricopa County count tonight. And from that 125,000, they favored Sinema by more than 20,000. That was the margin they got added in here.

So that is the biggest reason she took the lead. The other reason is also Pima County. This is Tucson. This is the part of the state where Sinema is from. They also added a big batch to their count tonight. That also waved for Sinema by about 8,000 votes. You add those two together and it was enough to vaulter into a 9,000 lead, a vote lead statewide.

Now, what`s going to happen is they`re going to keep counting tomorrow, through the weekend, into next week. What is going on is this, Arizona is a state with a lot of vote by mail. A lot of people dropping off, mailing in ballots early. So what they`re counting right now seemed to be ballots that were -- these are ballots that were delivered late last week, over the weekend, a couple of days before election day. Those types of ballots tend to favor Democratic candidates and certainly seem to be favoring Sinema.

There are probably -- in Maricopa County, there`s probably 150,000 or so of those ballots left. So I expect tomorrow, they`re going to report out again tomorrow night more votes from Maricopa. I expect Sinema to do probably about as well for that statewide lead to grow.

The question and the suspense in this race is the second type of ballot, which is the ones that folks delivered personally to polling places on election day. There`s going to be about 200,000 of those in Maricopa County. They`re expected to favor McSally. We don`t know by how much. So basically can Sinema build up a lead here tomorrow, maybe into the weekend, and is that lead big enough to sustain any improvement than McSally gets on the same day the vote is counted?

O`DONNELL: And Steve, take us to Florida where the votes are still being counted.

KORNACKI: Yes. So here`s the deal in Florida. Let`s look at the Senate race in particular. Look at this margin right here. Rick Scott over Bill Nelson. It is now 15,073 votes between them. That is a difference of 0.19 percent. OK. So first of all, what that means is if you`re under 0.5 percent in the margin, it`s not just an automatic recount.

We are now in the territory where it`s an automatic manual recount. They don`t just feed the ballots in the machines now. Now, they`re going to take them out and hand inspect them. It looks like that`s where it`s heading here. What we still have outstanding in Florida, it looks like tonight Broward County, big Broward County, Democratic Broward County counted a batch of vote by mail that were sitting there. That`s why the margin shrunk a little bit.

We also have, it looks like, at least a thousand votes, vote by mail here in Palm Beach that have yet to be counted. You would expect a small boost from Nelson there. And then statewide, there`s going to be provisional ballots. People who showed up at the polls, they didn`t have the proper I.D., whatever it is. They were allowed to cast the ballot provisionally and then the onus is on them, follow up, prove it was a legitimate vote in the eyes of the law and they`ll cast the ballot.

In the past, that number has been about 10,000 elections that are accepted statewide. Democrats are putting out an urgent alert to all their voters in Florida who cast provisional ballots to make sure to follow up, Democrats are telling them because they think they could get more from the provisional as long as their voters do follow up. Again, typically it`s 10,000 to make up a gap like that. Democrats may need more. But basically, we`re definitely in manual recount territory right now in that race.

O`DONNELL: Steve Kornacki, thank you very much.

And as election night in America continues, you are now allowed to take a nap on that sleeping bag you have behind the big board. Thank you very much for joining us.

KORNACKI: Thank you, Lawrence.

O`DONNELL: Really appreciate it.

And when we come back, Staten Island. Three days before the election, I tweeted if Staten Island goes Democratic, the rest of the country will follow Tuesday night. And that turned out to be what happened on Tuesday night. Staten Island is that special part of New York City that usually votes Republican. We will be joined by the man who turned Staten Island blue.


O`DONNELL: Staten Island is a political island in New York City. It is the only part of New York City that consistently votes Republican. Donald Trump won Staten Island by 10 points. Donald Trump was wiped out everywhere else in New York City. And that`s why I had my eye on Staten Island on election night thinking that if Staten Island turns blue, then the Democrats are going to win the House of Representatives. And that is exactly what happened.

Joining us now is the Democratic Congressman-elect Max Rose who flipped New York`s 11th district in Staten Island. Max, thank you very much for joining us tonight. You brought some very powerful assets as a campaigner, as an Afghanistan combat veteran campaigning in Staten Island. But you knew it was a challenge trying to appeal to Republican voters in Staten Island. How did you do it?

REP.-ELECT MAX ROSE (D), NEW YORK: Well, I`m sure you know, Staten Island isn`t filled with Republican voters or Democratic voters. It`s filled with people who vote for the person and not the party, and that`s what we did. We sought out to earn people`s trust, to present them with a vision for how the government and America as a whole can solve their problems. Whether it`s in regards to a community nightmare or the opioid epidemic or gun violence in this country.

So this was never about flipping this seat. This was always about changing politics in this country, and that`s what we`re set out to do. We`re just getting started.

O`DONNELL: But you were running against Donald Trump and that he endorsed your opponent, strongly supported your opponent. And Staten Island never really pays attention to trends. I mean, it lives within New York City, you know, a Democratic Bastian. It has floated out there in the water as a Republican Bastian, ignoring the trends in New York City.

ROSE: Well, last I checked, Donald Trump wasn`t on the ballot. I was running against a gentleman who I didn`t think was serving the community in the way that he should be, and so we ran against him and we beat him. And that`s what matters, you know. And now, we have to get to work.

We`ve got to have an interstate highway out to the 21st century where we can get a ferry in the south shore and double the number of buses on Staten Island and get some funding for our trains in South Brooklyn because our train is late more than it`s on time. We`re losing hundreds of people to the opioid epidemic. I want to see us double the number of treatment options on Staten Island.

These are things that Democrats have also proposed in years past and then they`ve gone down to Washington, D.C. and acted according to the interests of their donors and special interests. So, we can`t let that happen either. I intend on holding the Democratic party accountable to its plans and making sure that we actually get to work in this country solving problems and putting the country first. That`s what matters to me. More importantly than that, though, that`s what matters to the people who voted for me just a few short days ago.

O`DONNELL: Max, what made you decide to take on what many would say was a hopeless run in this district that is -- concludes Staten Island and then a little bit of Brooklyn on the other side of the water? Democrats look at that district in the past and they just give up.

ROSE: Well, you know, we never thought it was hopeless -- but what I was constantly motivated by was this sense that people had that government used to work. It used to be able to solve problems. We used to be able to have Apollo projects and think boldly in this country.

And you know, about six years ago or so, I was in Afghanistan and my vehicle hit a bomb. My soldiers came from all across the country and they put their differences aside and got me out of there. And as I was lying there in the hospital bed, a two-star general tells me, "Son, five years ago, you would have been dead." The only reason why I lived is because the fact that Congress in a quiet manner, years earlier, had allocated a couple hundred million dollars to get my vehicle and vehicles like it the armor that it needed to push the explosion away from its core.

For just a brief moment, they didn`t care about party, they didn`t care about their donors, they didn`t care about MSNBC or "Fox News" or social media, and I`m alive today because of that. Now, that should be the story of this country and much bigger ways. So that`s the message that we ran on. But more importantly than that, that`s the mantra that we`re going to govern with because we didn`t get into this just to win one race. I want to stay in office long enough so I can make some real change.

O`DONNELL: Max Rose, Democratic Congressman-elect, thank you very much for joining us tonight. Really appreciate it.

ROSE: Thank you so much again for having me. A real honor.

O`DONNELL: Thank you.

We`ll be right back.


O`DONNELL: Sergeant Ron Helus was planning to retire from the Ventura County Sheriff`s Department sometime in the next year or so. Last night, he was the first officer to respond to a report of a mass shooting in a bar in Thousand Oaks, California. He was on the phone with his wife when he got the call. He told her, "Hon, I got to go. I love you. I got to go on a call."

Sergeant Ron Helus went through the front door of the bar, accompanied by a California highway patrol officer. Sheriff Geoff Dean said, "They immediately exchanged gunfire with the suspect, and that`s when Sergeant Helus was shot several times."


SHERIFF GEOFF DEAN, VENTURA COUNTY SHERIFF`S OFFICE: He was totally committed. He gave his all. And tonight, as I told his wife, he died a hero because he went in to save lives, to save other people.


O`DONNELL: America`s latest mass murderer was a Veteran of the United States Marines who served in Afghanistan. He murdered 12 people before taking his own life. One of the dead is 22-year-old Cody Coffman. This morning, Cody`s father was officially notified that Cody did not make it out of the bar alive.


JASON COFFMAN, FATHER OF SHOOTING VICTIM: My first-born son, only him and I know how much I love -- how much I miss him. Oh, God, this is so -- oh, son, I love you so much. Oh, heavily father, just, please.


O`DONNELL: Some of the witnesses who survived the shooting say that they are sure that they - there would have been more dead if Sergeant Ron Helus did not rush in and exchange fire with the killer. Sheriff Sergeant Eric Buschow said, "He loved spending time with his son. They would go fishing up in the Sierras together. My heart goes out to his family. I can`t imagine what they`re going through right now."

When a hearse carrying his body traveled across the San Fernando Valley today on the way to the medical examiner`s office, every local television station in Los Angeles had a camera following the hearse. And Californians occupied every overpass of the 101 Freeway and a salute to a fallen hero, Sergeant Ron Helus, who was 54 years old. "THE 11TH HOUR WITH BRIAN WILLIAMS" is up next.


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