LAWRENCE O`DONNELL, MSNBC HOST: Rachel, you`re going to have to do a show called Rachel`s commercial greatest hits because that happened during your commercial and I don`t know what the commercial was, but it was not as good as what was happening behind that commercial.
RACHEL MADDOW, MSNBC HOST, "TRMS": No. You know, it always is. I used to have a rule for myself when I first started this thing, that as soon as we were in commercial break if there was a guest on set, I`d be like put on the horse blinders and don`t let any good stuff happen in the commercial break. I`m now much less disciplined and stuff like that happens.
O`DONNELL: I`m just not professional enough to talk to anyone during the commercial break because I`m too worried about what happens after the commercial break. We could go on and on about this. But I guess I should do the show.
MADDOW: Do the show. Thanks, Lawrence.
O`DONNELL: Thank you, Rachel.
Well, on this date, January 10th, 2019, the big lie of the Trump presidency collapsed. And it collapsed in public. Most big Trump lies collapse instantaneously, the second Donald Trump says them, to people who are well informed enough to know it is a lie, people who can process the difference between truth and falsehood, fact and fiction.
The big lie of the Trump presidency was in Donald Trump`s presidential campaign announcement, 3 1/2 years ago.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I would build a great wall. And nobody builds walls better than me. Believe me. And I build them very inexpensively.
I will build a great, great wall on our southern border. And I will have Mexico pay for that wall. Mark my words.
AUDIENCE: Yes! Yes!
(END VIDEO CLIP)
O`DONNELL: That was the paid audience that Donald Trump hired for his campaign announcement. So they weren`t as enthusiastic. They didn`t know that the wall was supposed to be a big cheer line.
But you saw what happened to it during the campaign. It got cheers every time Donald Trump said it. And Mexico will pay for the wall became a campaign chant, led by Donald Trump. That big lie, Mexico will pay for the wall, was carried into the Trump presidency, and it immediately became a problem for President Trump.
In his first conversation as president with the president of Mexico on the telephone, Donald Trump begged the president of Mexico to stop saying Mexico would not pay for the wall. And now, Donald Trump himself is finally saying Mexico will not pay for the wall.
These are the moments that Donald Trump hates more than any others in his public life. If you ask him if he had sex with a porn star and paid her off during his third marriage, that`s the kind of thing he can take in stride. But having to admit that one of his big lies is a lie is as painful as it gets for Donald Trump. And you can see it. You can see it when it happens.
Let`s take a look at what might be the single most painful moment of the presidential campaign for Donald Trump, it was the moment that Donald Trump believed would never come. When he began his presidential campaign, because Donald Trump did not expect to be the Republican nominee. He was just running to try into crease his fame, which was fading then. But then there he was as the Republican nominee with only seven weeks left in a presidential campaign, and he had to admit that the foundational lie of his political career was a lie, the lie that endeared Donald Trump to American racists was a lie. The lie he began telling five years before the moment when he had to admit that it was a lie.
The first time Donald Trump told this big lie in 2011, I immediately said it was a big lie. But sadly, the news media did not then know how to handle it. Not only did they not call it a lie, they entertained it and repeated interviews in which they allowed him to tell that lie on national television and build his political base every time he told that lie.
And it took five years for the news media to finally corner Donald Trump and force him to admit the foundational lie of the Trump political career.
(BEGIN VIDEO CLIP)
TRUMP: President Barack Obama was born in the United States, period.
(END VIDEO CLIP)
O`DONNELL: Couldn`t you just see how that felt for Donald Trump? That was one of those days for Donald Trump, when he had to do that.
Today was one of those days. And so, now, the chants of Mexico will pay for the wall will never be heard again.
(BEGIN VIDEO CLIP)
TRUMP: When during the campaign I would say Mexico`s going to pay for it, obviously I never said this and I never meant they`re going to write out a check.
(END VIDEO CLIP)
O`DONNELL: And it only got worse from there.
(BEGIN VIDEO CLIP)
REPORTER: When your --
TRUMP: When I say Mexico -- excuse me. When I say Mexico`s going to pay for the wall, do you think they`re going to write a check for $20 billion or $10 billion or $5 billion or 2 cents? No.
(END VIDEO CLIP)
O`DONNELL: Not even 2 cents. Mexico`s not going to pay 2 cents for the wall. That`s not going to work as the new chant.
The president also said today that Mexico would pay for the wall indirectly, which is exactly like saying President Barack Obama was born in Kenya indirectly. And so, is the new chant going to be Mexico will pay for the wall indirectly?
It is impossible for Mexico to pay for the wall indirectly. Impossible. President Trump said that the update of NAFTA that his administration has negotiated with Mexico will indirectly pay for the wall. That is impossible.
First of all, the updated deal has not even been approved by Congress. And if you`ve been watching Congress lately, you might get the feeling that it might never be approved by Congress. But even if it is approved by congress, there is nothing in that deal that indirectly pays for the wall.
The only thing that can ever pay for the wall is an American taxpayer money. Money that is processed in internal revenue processing centers that are now not processing anything because President Trump has shut down the government and IRS employees have been sent home.
President Trump visited the state with one of the largest IRS processing centers in the country, 9,000 Texans work in the IRS processing center in Austin, Texas, the state that Donald Trump visited today. None of them will be receiving their paycheck tomorrow because of the Trump shutdown. And the Texans who are depending on quick processing of their 2018 tax returns in that processing center so that they can get their refunds that they desperately need, they will not be getting those refunds because their tax returns cannot be processed.
And so, did the two Texas senators join in the protests around the country against the shutdown today and demand that those 9,000 Texans be sent back to work immediately and get their paychecks immediately? Did the two Texas senators spend their day with some of those 9,000 Texans whose families are being harmed by the Trump shutdown? No. They`re Republican senators.
The two Texas Republican senators spent their day in southern Texas near the border with the president meeting with the Republican president who has shut down the government and harmed those 9,000 Texans, and they did not say one word about the Texans who have been harmed by the Trump shutdown. The president went to the southern border to try to convince Democratic members of Congress that there`s an invasion at the southern border that can only be stopped with a wall.
Before he boarded his helicopter at the White House, the president wanted to clear up something about his negotiating style.
(BEGIN VIDEO CLIP)
TRUMP: I don`t have temper tantrums. I really don`t. I didn`t pound on the table. I didn`t raise my voice.
(END VIDEO CLIP)
O`DONNELL: And here is the president not having a temper tantrum and not raising his voice.
(BEGIN VIDEO CLIP)
TRUMP: If we don`t get what we want one way or the other, whether it`s through you, through a military, through anything you want to call, I will shut down the government.
SEN. CHUCK SCHUMER (D-NY), SENATE MINORITY LEADER: OK. Fair enough. We disagree. We disagree.
TRUMP: And I am proud. And I`ll tell you what, I am proud to shut down the government for border security, Chuck. Because the people of this country don`t want criminals and people that have lots of problems and drugs pouring into our country.
So I will take the mantle. I will be the one to shut it down. I`m not going to blame you for it. The last time you shut it down it didn`t work. I will take the mantle of shutting down.
(END VIDEO CLIP)
O`DONNELL: House Speaker Nancy Pelosi brought two more bills to a vote today in the House, one to open the agriculture department, which attracted 10 Republican votes and passed 243-183, and a bill to reopen the Transportation Department and Housing and Urban Development, which attracted 12 Republican votes and passed 244-180. Yesterday, Speaker Pelosi passed a bill to reopen the Treasury Department, which would reopen the Internal Revenue Service. It got only 8 Republican votes in the House.
Now, think about what that means. Republican members of Congress voted to deny paychecks to thousands of internal revenue service workers in their states. The IRS has five big processing centers in the United States. Four of them are in Republican states: Kentucky, Missouri, Texas, and Utah. One of them is in California, where six California Republican members of the House including Republican Leader Kevin McCarthy voted to keep 5,000 Californians out of work without paychecks.
Twenty-two Republican Texas members of Congress voted to keep 9,000 Texans out of work without paychecks. Six Republican members of Congress from Missouri voted to keep 6,000 Missouri workers out of work and without paychecks. And three Republican members of the House from Utah voted to keep 5,000 Utah voters out of work without paychecks to support their families. And five House members from Kentucky voted to keep 5,000 Kentuckians out of work without paychecks to support their families.
Those are Mitch McConnell`s constituents, in Kentucky. They are out of work now not because of Donald Trump. Not anymore. It is Mitch McConnell`s shutdown now. Mitch McConnell has the power to take up those House bills that would reopen those government departments and bring them to a vote. Those bills would easily pass the Senate if Mitch McConnell would bring them to a vote in the Senate.
So, every federal worker in Kentucky tonight out of work including the 5,000 IRS workers in Kentucky trying to provide for their families have Mitch McConnell to blame for the financial struggle that they find themselves in tonight. Now, maybe Mitch McConnell just can`t relate because like Donald Trump, not as rich as Donald Trump maybe, but Mitch McConnell is a very, very rich man.
And Mitch McConnell like all Republicans, publicly at least, hates the IRS. But does he hate the IRS workers who live in Kentucky?
Republicans love to hate the IRS publicly. But on a per dollar basis, IRS workers are the most valuable workers in America. They return a giant profit on their salaries to the United States treasury every year. And they do it in the processing centers in Kentucky, Texas, Missouri, California, and Utah that Mitch McConnell and Republicans are now keeping closed down.
Some Republicans are now voting for every spending bill that Nancy Pelosi brings to a vote in the House of Representatives, and at least three Republicans have publicly declared that they would do the same in the Senate if Mitch McConnell would just bring those bills to a vote in the Senate. And if those bills came to a vote, there would be many more than just those three who`ve publicly declared their support. Those bills would easily pass the United States Senate, because Republicans are not united on the shutdown.
(BEGIN VIDEO CLIP)
TRUMP: The Republicans are extremely united. They all want to see something happen. But they`re extremely united. And I don`t think I`ve ever seen unity like this in the Republican Party. We have tremendous unity of the Republican Party.
(END VIDEO CLIP)
O`DONNELL: There is no unity in the Republican Party. Unity in the Republican Party was when they were voting for tax cuts and every Republican voted exactly the same way.
Disunity is breaking out all over in the Republican Congress. Senator Lindsey Graham, the new chairman of the Senate Judiciary Committee, said today that the president should declare an emergency and seize money from the Defense Department to try to begin work on the Trump wall.
At the same time today, Chuck Grassley, who was the chairman of Judiciary until this week and is now the chairman of the Senate Finance Committee, said this about declaring an emergency.
(BEGIN AUDIO CLIP)
SEN. CHUCK GRASSLEY (R-UTAH), SENATE FINANCE COMMITTEE CHAIRMAN: I would advise against that as a bad precedent. Even if the president`s got authority to do it, I`d advise against it.
(END AUDIO CLIP)
O`DONNELL: And here is what the president said today about declaring an emergency.
(BEGIN VIDEO CLIP)
TRUMP: So we`re either going to have a win, make a compromise, because I that I compromise is a win for everybody, or I will declare a national emergency.
(END VIDEO CLIP)
O`DONNELL: And with that statement the president gave his opponents everything they will ever need to stop him in court if he declares an emergency because what he just said was if we don`t have a legislative compromise on a budget bill then I will declare a national emergency. That means that the emergency is we don`t have a legislative compromise.
When a hurricane hits New Orleans or Puerto Rico, that`s a national emergency and you can`t have a legislative compromise to make that hurricane go away. Donald Trump admitted today that the emergency would be about a legislative compromise, not about the conditions at the southern border. He did not say if the invasion continues at southern border, I will declare an emergency. He said if we don`t reach a legislative compromise I will declare an emergency.
And so, as usual, Donald Trump`s public negotiating with himself continues to negotiate himself into an unwinnable corner.
Congressman Eric Swalwell is a member of the party that is united in fighting the Trump shutdown. He will join us after a break, along with Jennifer Rubin and former Republican presidential campaign manager Stuart Stevens.
O`DONNELL: The president said things today that can and will be used against him in court if he declares a national emergency at the southern border, including what he just said to Sean Hannity tonight.
(BEGIN VIDEO CLIP)
TRUMP: If we don`t make a deal with Congress, most likely I will do that. I would actually say I would. I can`t imagine any reason why not, because I`m allowed to do it. The law`s 100 percent on my side. We have the absolute right to declare a national emergency. This is security stuff. This is a national emergency if you look at what`s happening.
(END VIDEO CLIP)
O`DONNELL: Joining us now, Democratic Congressman Eric Swalwell of California, Jennifer Rubin, opinion writer at the "Washington Post" and an MSNBC contributor, and Stuart Stevens, Republican political consultant who was the chief strategist for Mitt Romney`s 2012 presidential campaign.
And, Congressman Swalwell, we just heard him say it again, that the emergency is that there`s a stalemate in Congress. When he describes the emergency, he doesn`t say anything about the southern border.
REP. ERIC SWALWELL (D), CALIFORNIA: Right. Failure to make a deal, failure to lead is not an emergency. That is a crisis of his own leadership.
But I just want to tell you, Lawrence, this shutdown is risking my son`s life. That`s an e-mail subject line that I saw today from a mother in Fremont, California, talking about the FDA not being able to work on her son`s therapy.
So this really boils down to are we going to govern in this shutdown by purpose or by circus? When we govern by purpose, we believe that government should be open and helping people, whether it`s at the FDA or getting people the IRS tax refunds they deserve or making sure our border patrol agents are able to stand guard, not worry about financial distress.
And when we govern by purpose, we govern based on facts. The facts that the real undocumented issue here is the overstaying of visas, not people coming across the border. When we govern by circus, we get theater and we get a ground truth that is not based in reality. And, Lawrence, I`ll submit to you that this president wants border theater. He doesn`t want anything other than that.
O`DONNELL: And, Jennifer Rubin, we see each time there`s a vote a couple more Republicans moving over to the Nancy Pelosi side in the House of Representatives.
JENNIFER RUBIN, MSNBC CONTRIBUTOR: Right. We start with five, then seven, eight, ten, twelve. That number I think will continue to go up.
Now, I think unfortunately the Republicans in the Senate are much more responsible for this catastrophe than they`re commonly assumed to be. Of course, Mitch McConnell could end this immediately. And moreover, those Republicans like Susan Collins, like Lisa Murkowski, who have qualms about this, who say gosh, you know, we really don`t think the president should be using emergency powers to subvert the Constitution of course, they could stop this too.
They could stop acting on the president`s agenda. They could demand a vote. They could join Democrats in any lawsuit to stop the emergency powers.
But they don`t because they are sheep, like they have always been. They have always been afraid to confront the president and his handlers, Sean Hannity and Rush Limbaugh, who pushed him into this. And so, we have this ridiculous sight where you see the chairman of the Judiciary Committee in the United States Senate telling the president of the United States to cook up an emergency, go to court and take over Congress`s responsibility for appropriation. That is Lindsey Graham.
I`ve got to think the people of South Carolina, who are going to have a chance to vote on him in 2020, are smarter and more conservative than that. That they have more respect for the Constitution than Lindsey Graham does.
O`DONNELL: My own suspicion about that, could be wrong, is that Lindsey Graham knows that if the president does that he`ll be stopped in court in a matter of days as quickly as the Muslim ban was stopped in the first week of the Trump administration.
Stuart Stevens, you know a bunch of these Republican senators including the junior senator from Utah now, where there is a big IRS processing center, where 5,000 people can`t go to work, can`t get a paycheck tomorrow, are going to struggle now, have been struggling, taking care of their families, trying to figure out how long they`re going to go with this.
How long can the Mitt Romneys of the Senate and others hold on to the president`s position here?
STUART STEVENS, FORMER SENIOR STRATEGIST, ROMNEY 2012: Well, you know, I look at Donald Trump as sort of like the civil rights moment, it`s a moral test that the Republican Party is tragically failing. Everybody knows that Donald Trump isn`t telling the truth, and everybody pretends -- not everybody, but almost everybody pretends that he is telling the truth. It`s what Donald Trump sort of forces you to choose between your own dignity and some sort of political allegiance.
And part of this is it makes a rational discussion about border security impossible because as the congressman said it`s all circus theater. I think there`s a good argument to be made for more border security. I think there`s a rational argument to be made for a wall. But none of that sort of can be discussed and talked about with this cacophony of complete untruth.
O`DONNELL: And, Congressman Swalwell, let`s consider for a moment what would happen if the president did declare this emergency. I believe the courts would stop it as quickly as they stopped the Muslim ban. But let`s assume for a moment that that -- that it just went forward. We are more than a year away, way more than a year away from any shovel hitting any piece of dirt anywhere in Texas to even outline where any piece of wall would go.
SWALWELL: That`s right, Lawrence. And the first thing the president would hear as soon as he did that would be a phrase that he is quite used to: we`ll see you in court. And the result will also be a result that he`s quite used to. He will probably lose.
But sadly, right now his proposal as far as how he`s going to pay for at least the first part of this would also hurt people. It would hurt hurricane victims in Puerto Rico and Houston and Florida. It would hurt people in my state who are victims of wildfires where the president believes that it`s environmentalists causing the problem.
But, Lawrence, I can promise you that even if he was able to begin construction on the wall, he would never be able to finish it because any future appropriation, Congress would never allow any money to ever go to any emergency. We would certainly put a firewall, if you will, around that.
O`DONNELL: Yes. And, Jennifer, even the best case scenario on the Trump view of the world, this wall is not going to get built in what is now basically less than two years left on this presidency and there wouldn`t even be the first marks in the ground anywhere until Donald Trump had just months left in office. There`s never going -- this wall is never going to happen. And it`s just a question of what are we going to go through between now and the final realization that it`s never going to happen.
RUBIN: That`s right. Remember, they are still fighting in Texas over appropriations made in 2006 for additional fencing in Texas. And as we speak, Republicans, ranchers, land owners who are along the border are getting ready. They`re calling up their lawyers. They`re getting ready to fight the president.
This will -- frankly, I don`t think a shovel will ever hit anywhere. We haven`t even talked about the environmental lawsuits that are going to take place.
But I want to concentrate on something the congressman just said. Understand how crazy this is. He is taking money from hurricane victims in Texas to use that money to forcibly take land from other people in Texas who don`t want a wall, who don`t have a border crossing, so he can save face with Sean Hannity. That`s what`s going on.
And I kind of think that there have to be some Republicans out there who say, you know, stop the madness, this is lunacy, and we`re going to get our heads handed -- all the states you mentioned, Lawrence, all of them except California voted for Trump for president. Maybe they shouldn`t do that next time.
O`DONNELL: Yes. It will be a struggle next time, no doubt.
Stuart, the Republicans who are watching this in the Senate -- I mean, my experience in dealing with senators is they never really say anything as long as they can get away with not saying anything. The thing where they`re forced to say yes or no is on a vote. And it is very hard to predict how they`re going to vote when they`re on this kind of pressure. If something like this can somehow get to a vote, if any of the Pelosi bills ever make it to a vote in the senate, my feeling is they would go through with more than 60 votes.
STEVENS: Yes, I think you`re right. The majority of Americans think there`s a pretty reasonable solution to this. It`s part of the whole absurdity of talking about this as a crisis and why politically I think the president`s losing on this and I think Republicans are losing.
It`s not a crisis. People look at it and they know it`s not a crisis, and it`s just completely fraudulent, and people see through it. So, I don`t know how we get out of this. But it`s not going to end up I think in a way that Donald Trump wants. It`s a way I`m sure he`ll probably declare victory in this, but it`s just -- it`s such a complete waste of political capital and poisons the dialogue of our politics.
O`DONNELL: I think, Stuart, you`ve found what is the clearest prediction of the night, is that we know what Donald Trump`s line is going to be. However it ends. That he won no matter how it ends. We`re sure of that.
Stuart Stevens, Jennifer Rubin, thank you for joining us. Congressman Swalwell, please stay with us.
When we come back, the president`s former lawyer and friend Michael Cohen is going to take his place in history on February 7th by testifying under oath in public to a congressional committee about the president of the United States and the crimes that Michael Cohen has said under oath he committed with the president of the United States.
And former Acting Solicitor General Neal Katyal will tell us what`s going to happen to Robert Mueller`s report, and he knows because he wrote the rules of what happens to special counsel reports.
O`DONNELL: There are breaking news on the Mueller investigation. "The New York Times" is reporting that Special Prosecutor Robert Mueller is examining at least a dozen Ukrainian political and business figures who came to Washington for the Trump inauguration.
"The investigations are playing out against growing indications that some of the Ukrainians who came to Washington for the inaugural, or their allies, were promoting grand bargains or peace plans that aligned with Russia`s interests including by lifting sanctions."
Before he goes to prison, Donald Trump`s former personal attorney and friend Michael Cohen will testify publicly before the House Oversight Committee on February 7, where he will presumably discuss arranging a payoff to porn star Stormy Daniels for Donald Trump in the final weeks of the Trump presidential campaign. And who knows what else?
And "CNN" is reporting that Mueller`s team interviewed a Trump campaign pollster last year who worked with Paul Manafort. That interview holds new significance after a court filing revealed that Manafort shared polling data with an associate tied to Russian intelligence during the 2016 campaign. Earlier today, President Trump denied any knowledge of that.
(BEGIN VIDEO CLIP)
REPORTER: Did you know that Paul Manafort was sharing polling data from your campaign with the Russians?
TRUMP: No, I didn`t know anything about it. Nothing about it.
(END VIDEO CLIP)
O`DONNELL: Joining our discussion now, Jill Wine-Banks, former assistant Watergate special prosecutor and an MSNBC legal analyst and also with us Democratic Congressman Eric Swalwell.
And Jill, I just want to go to you. And I imagine this February 7 date with history that Michael Cohen has, you were there during the giant moments of the Watergate investigation, the public hearings that the Congress had while you were working as part of the special prosecutor`s team. What are you expecting to hear on February 7?
JILL WINE-BANKS, FORMER WATERGATE PROSECUTOR: I think it`s going to be very interesting. And one difference from John Dean`s testimony during Watergate is when he testified he did not know that there were any tape recordings. So his testimony ended up being corroborated by all of that.
The person who`s testifying, in this case, may have a lot of recordings that already corroborate what he`s about to say. And that will be very dramatic if that`s true. So we need to look at the motivation of both of them. And John Dean was motivated by helping himself but also by recognizing that he had done wrong and he wanted to rectify that.
And I think that we`re seeing the same thing in Michael Cohen. He knows he did wrong and he wants to make up for that. But he also would like to help himself. His lawyer admits that part of his motivation is to get a lower sentence than he`s already gotten. So that will be interesting.
But the most important thing is not the motivation, and it`s really the education that will come from this. Seeing him testify live so that people can judge his credibility by his demeanor, by his tone of voice, by the words he chooses will be very important in getting people to realize what has happened and what the president has done. So it`s a very important thing.
O`DONNELL: And Congressman Swalwell, Chairman Schiff of the Intelligence Committee that you`re a member of has also publicly expressed an interest in possibly your committee obtaining some kind of testimony, cooperation from Michael Cohen. Do you expect other committees, possibly Judiciary or Intelligence Committee, will also be hearing from Michael Cohen?
REP. ERIC SWALWELL: I can speak for intelligence. I spoke with Mr. Schiff today and he expressed just what you said, which is an intent to try and get Mr. Cohen to come in and talk about the Russia investigation. As I understand it, his testimony to the Oversight Committee will probably not include the Russia investigation. And we have a lot of follow-up questions now that he has admitted to lying to us.
Now, he remembers somebody who lived in all three of Donald Trump`s worlds. His personal world, his political world, and his professional world. And he would have more knowledge than probably anyone as to just what Donald Trump knew about what the Russians were doing, what Mr. Trump`s intent was to do business with Russia while he was a candidate.
And I always have found, Lawrence, as a former prosecutor, that witnesses who come clean can be very helpful in first explaining why they protected the person they were protecting but also to put in perspective why so many others who are continuing to lie today continue to lie today, which I think will be illuminating for the American people.
O`DONNELL: And Jill, the committee`s statement about this testimony has said we don`t want to interfere in any way with the Mueller investigation. So that means they will prefer to be dealing with stuff that`s already in some ways public information.
So that brings us to the Michael Cohen guilty plea in the Southern District of New York, which is a completed case. And that`s his guilty plea to campaign crimes involving the payoffs to Stormy Daniels and another woman to buy their silence weeks before the presidential election.
And in that case, that was presented as a conspiracy in effect to defraud the American voter to not allow the American voter to know this kind of information about the president and illegally financing that in effect to the campaign contribution. That`s where Donald Trump was identified as Individual-1. When Michael Cohen talks about this on February 7 in the committee, he won`t be calling him Individual-1.
WINE-BANKS: I think that`s a really important point, is that no one has to guess anymore who Individual-1 is. Although, it`s been pretty apparent. But I think what`s also important is the coordination that has to take place.
This was a problem during Watergate where we had the Senate hearings going on. And, in fact, the Senate actually gave immunity to John Dean that we were very much opposed to because we felt that he would be a much more credible witness if he didn`t have any immunity.
And so that was a problem but we worked through that. And it ended up that the public could get the education it needed in order to be able to follow and vote according to what they were learning while not having a problem with the coordination between the special prosecutor and the Senate so it can be done.
O`DONNELL: Jill Wine-Banks and Congressman Eric Swalwell, thank you both for joining us tonight.
And when we come back, former acting Solicitor General Neal Katyal will tell us what`s going to happen to Robert Mueller`s report, and he`s the guy who should know. He wrote the rules about what happens to these reports. That`s next.
O`DONNELL: I hope you consider yourselves as lucky as I do when I get to hear Neal Katyal`s legal opinion about any legal case or important situation involving the law because tonight we are the lucky ones. There is no higher authority out there on the authority of special prosecutors like Robert Mueller.
Neal Katyal drafted the Department of Justice rules for special counsels 20 years ago when he was working in the Clinton administration Justice Department. And he now has no doubt that, because of the rules he wrote, Robert Mueller`s report will be public.
But that`s not all. In addition, Neal Katyal is also one of the foremost legal experts in the country in the use of presidential emergency power. He has argued the biggest cases on emergency powers of the 21st Century at the Supreme Court. And so who better to ask about what emergency powers the president has at the southern border?
And so joining us now is Neal Katyal, former U.S. acting solicitor general. Neal, thank you very much for joining us tonight. I want to first of all start with the emergency that the president is thinking about declaring at the southern border. What happens if he does that?
NEAL KATYAL: Well, it`s going to be challenged. And I think it`s a very weak argument. So I think there`s two important pieces to it.
One is kind of whether or not the president has any chance of winning this emergency. And second, what is this really saying about the president that he`s going to try to assert this.
On the first, on kind of is this an emergency, the only emergency Trump can point to is the fact he didn`t get his way. That is traditionally not an emergency. The Supreme Court most famously in the steel seizure case in 1952 rejected these kinds of claims.
And I think Conservatives and Liberals alike have to really worry about the president`s extravagant claim about emergency here because you can imagine a future Democratic president, for example, saying you know, gun violence, gun violence kills a lot of people, unlike these fake statistics that the Trump administration`s putting together about immigration. So we`re going to ban guns or something like that. You know, the system our founders left us with is one in which Congress makes these calls, not the president. So that`s number one.
And then number two on kind of what does this say about the president? I mean it is really remarkable that he`s asserting this emergency power because I think if he asserts it, I don`t think there`s any choice but for the Democrats to begin impeachment proceedings. And I think indeed joined by a lot of Republicans too at the end of the day.
I`m beginning to think maybe Trump wants to be impeached. I mean, that`s the only way to really make sense of what this is about because you`re dealing with a president who has effectively no agenda left. His agenda is, as best I can tell, Twitter and the wall. And the wall isn`t working out for him.
And this is a president who frankly acts like a snowflake. I mean he`s a guy who claims to be the victim all the time and an impeachment proceeding, of course, would allow him to make that cry even more. But as a matter of law, as a matter of policy, this is a very, very damaging thing for the country and indeed I think to Donald Trump.
O`DONNELL: What would invoking the national emergency add to the momentum for impeachment and why?
KATYAL: Well, I think one of the most important things you do as president is take an oath to take care that the laws be faithfully executed. That`s in our constitution. And the idea that the president could bypass, you know, our most central thing our founders gave us, the separation of powers, and say "Oh, I`m the president, I can do whatever I want." You know, sometimes in a true emergency there are real reasons for that, and that`s why Congress passes emergency statutes because they recognize Congress can`t always get every legislation passed.
But once you have a president who starts to abuse that, then it forces Congress to contract those authorities and means that when the next president faces a real crisis, not one of the president`s temper tantrum, that he doesn`t have or she doesn`t have that suite of authorities. And that is a terrible, terrible result. And that is why the stuff of which impeachment is all made.
O`DONNELL: Speaking of presidential powers, what can Donald Trump do to stop us from seeing the Mueller report?
KATYAL: So I don`t think that at the end of the day he can do very much. The context here, there`s three important pieces. Number one, as you were discussing earlier, the investigation is starting to bear fruit on Donald Trump.
I think most notably, you know, this is remarkable for one of the very few times in American history over the last 200 years a president has been fingered as ordering the commission of felonies. That`s what the Southern District prosecutors did with respect to Michael Cohen and campaign finance. That is extraordinary. That`s number one.
Number two, the president was reported yesterday to have hired 17 new lawyers at the White House to try and assert executive privilege to block information. And then number three, the attorney general, or right now the fake attorney general Whitaker, or the new one Barr should he get confirmed, both of these people have campaigned for the job of attorney general by giving the president memos or talking on TV or stuff about how Mueller needs to be reined in and all of that.
So basically, I do expect the attorney general or the acting attorney general to try and suppress pieces of the Mueller report. But the way we wrote the regulations back 20 years ago, I think it`s going to be virtually impossible for him to succeed.
O`DONNELL: What specifically in the regulation protects Mueller`s ability to deliver a report to Congress?
KATYAL: So two things. Number one, whenever the attorney general rejects something that the Special Counsel Mueller asks for, it triggers an automatic reporting requirement to Congress in both the majority and minority parties. So that`s an anti-cover-up provision. So we anticipated something like this in which you`d have something nefarious that might go on. And that is one safety check.
And then the second safety check are the limitations on executive privilege itself. Executive privilege is this idea that the president`s private communications or government communications about important sensitive matters not be released. But the Supreme Court in 1974, when Nixon tried to assert it to protect against his own wrongdoing, unanimously said the public has a right to know.
O`DONNELL: Neal Katyal, thank you very much for joining us tonight. Really appreciate it.
KATYAL: Thank you.
O`DONNELL: And when we come back, Jacob Soboroff will join us from the southern border.
(BEGIN VIDEO CLIP)
JACOB SOBOROFF, CORRESPONDENT, MSNBC: There are pictures this morning showing a steel barrier wall being sawed straight through. What good is a steel wall if they can saw through it?
TRUMP: Well, that`s a wall that was designed by previous administrations. There is nothing that can`t be penetrated but you fix it.
(END VIDEO CLIP)
O`DONNELL: Joining us now by phone from the border, MSNBC correspondent Jacob Soboroff. Jacob, that was your reporting that the president was reacting today. He said there are pictures showing that the steel barrier can just be sawed through. What do you make of the president`s response to your reporting?
SOBOROFF (via telephone): Well, it wasn`t true, Lawrence, like much of what the president said about the reality of life along the Southern border. What you`re looking at on the screen right now is a picture that we exclusively obtained of those steel slat barrier prototypes down in San Diego.
They were tested at the president`s direction by the way and constructed at the president`s direction all eight of them, all of those different materials. And that steel that he said that he came to a consensus and agreed on with the Democrats in order to move forward, this $5.7 billion and the shutdown, et cetera can be sliced clear through.
So that impenetrable barrier that the president is insistent on, while 800,000 people are sitting at home on furlough, however you want to put it, turns out is not as strong as the president want you to believe.
O`DONNELL: And Jacob, is this something that -- is this information that`s available to the president now? I mean especially after an exchange like that, wouldn`t people say to him, well, that actually is the latest stuff.
SOBOROFF: Yes. Not only is it available to the president, Lawrence. Those tests that were conducted on all of those prototypes were ordered by the president. Because remember, he had that reality show like contest where he went down there last March in order to pick the best prototype, the one that he liked the most.
And so the idea that the president says we might go look and choose another design. First of all, we know that`s not true. What he said in the oval office on Tuesday night, they`re going to go with steel.
And the idea that the president has been saying all along that he insisted is going to be impenetrable, he has known at least since the testing period last year that these steel barriers can be sliced clear through. And by the way, the tools that they used, the quick saw, it`s something that you go and pick up at Home Depot. You and I, after the show tonight, could go and grab one at a 24-hour location if we wanted to.
That`s a type of technology that can get right through the president`s border wall, which is why, all along, anybody who lives along the border has said a border wall is not enough to stop what`s going on down here. It has to be a comprehensive approach.
And by the way, any crisis the president is talking about in the first place is largely a crisis of his own making.
O`DONNELL: And so Jacob, in what the president is calling an emergency situation, he doesn`t have right now, according to your reporting, the technology that would address the emergency that he is trying to describe.
SOBOROFF: If the wall worked, Lawrence, it wouldn`t address the technology he`s trying to describe in the first place. Because we know, number one, that the humanitarian crisis is something that he started.
I mean not he started rather but I should say that he exacerbated by meeting people at these ports of entry, forcing them through dangerous journeys and deadly journeys. And the latest example, of course, is these two young children who tragically and horrifically died in border custody.
O`DONNELL: Jacob Soborrof, thank you very much for joining us tonight. Really appreciate it.
We`ll be right back.