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Trump plan to declare National Emergency. TRANSCRIPT: 2/14/19, The Last Word w/ Lawrence O'Donnell.

Guests: Pete Aguilar, Neal Katyal, Rick Wilson, Mimi Rocah, David Leonhardt

LAWRENCE O`DONNELL, MSNBC HOST:  Good evening, Rachel.

And I have not allowed any suspense on this program to the notion there might be another one.  It has been absolutely impossible and everything Donald Trump has said leading up to this has indicated there would not be a shutdown, and still, of course, there were people who were trying to build that suspense because Trump needs it and he needed it with Sean Hannity, he needed it with the right wing that hates this deal. 

And "The Washington Post" has a report tonight, a team led by Robert Costa where after the fact they are trying to create the suspense, by saying that this almost run off the rails today.  The key passage, Rachel, is from unnamed Republican aide.  We thought he was good to good all morning and then, suddenly, everything is off the rails. 

That, of course, is exactly what the kind of out-of-control right wing wants to hear.  President Trump was fighting right `til the last second and Mitch McConnell had to corral him, and I don`t believe a word.  I believe the reporting is completely accurate.  That`s exactly what the sources told them.  And it was in all of the source`s interest to tell that story, create the hero image of Mitch McConnell for other senators.  It`s one of those stories that serves all of the players who are being talked about by these unnamed sources. 

RACHEL MADDOW, MSNBC HOST:  Yes.  Mitch McConnell looks great because he`s able to drag the reluctant president over the line.  The president is fighting tooth and nail for this thing.  He actually seriously cares about it we are, promise. 

The tell that you can`t believe any of their spin on this is that the president really did just do a campaign rally this week under a sign that said "finish the wall" and then he told the crowd that he`s already built it.  So when it comes to figuring out what`s going on with the president and this wall, there`s reality, and then there`s also what they say and never the twain (ph) shall meet.

O`DONNELL:  And, Rachel, I will confess to having had my hand in articles like this when I was working in the United States Senate and trying to create certain kinds of images of how things actually happened.  I never said anything that wasn`t true, but I could leave out something here or there, so that it would certainly tilt in favor of the people I wanted to tilt in favor of.  So these articles are interesting.  I`ll just leave it at that. 

MADDOW:  Also, like, who`s going to break it to the base that he`s trying to impress with the whole declaration of emergency thing that there`s no chance that the emergency declaration will ever result within the lifetime of any of them or President Trump, it will never result in the president building a wall from the Pacific Ocean to the Gulf of Mexico?  The prospect that that would actually do what the president says it`s going to do, is so far from reality that at some point, somebody`s going to break it to the people who are supposed believe it. But then we`ll be back -- 

O`DONNELL:  You know what, Rachel?  Time`s up. 


O`DONNELL:  We`re going to break it to them in this hour.  We have Neal Katyal who knows more about presidential power than anyone.  He has argued cases on this in the United States Supreme Court. 

He knows the 21st century version of this.  He`s going to deal with exactly that question and this is how we`re going to break it to them

MADDOW:  Get to it.  Thanks, Lawrence. 

O`DONNELL:  Thank you, Rachel. 

Well, the breaking news of the night is that President Trump`s wall has been crushed.  The Trump wall has been crushed by a veto-proof majority in the United States Senate, 83-16.  And that vote understates the actual opposition to the Trump wall in the Senate because five of the votes against that government funding bill that does not fund the Trump wall were cast by liberal Democratic senators, most of them running for president, who are strong opponents of the Trump wall. 

And moments ago, the House of Representatives passed the government funding bill by a vote of 300-128, another veto-proof majority in the House of Representatives.  The president`s signature is not necessary on this bill.  It was never going to be necessary.  Suspense about the signature has always been a joke because these are veto-proof majorities in both bodies.  The president could veto it and it would be instantly passed by the same vote in both bodies and become law without the signature.  So, the signature suspense has been a Trump spin of the week to try to keep his right-wing extremists in line. 

Today`s developments were inevitable from the moment president Trump made the disastrous and irresponsible mistake of shutting down the government.  The White House tried to create that suspense in the last couple weeks about whether the president would sign this compromised government funding bill that was voted on today.  But that suspense was never real, not for a single moment. 

There are enough shell-shocked Washington reporters who have had the president so unpredictable that they continued to fall for that suspense, which is completely understandable, but it was always clear, has always been clear that Donald Trump had absolutely no choice and was going to go along with this.  Nancy Pelosi had beaten him, beaten him very, very badly in this showdown from the moment she and Chuck Schumer taunted the president before Christmas into foolishly saying that he would shut down the government and be very proud to do it. 


DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  You know what I`ll say?  Yes.  If we don`t get what we want one way or the other, whether it`s through you, through military, through I go you want to call, I will shut down the government. 

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER:  OK.  Fair enough.  We disagree.  We disagree

TRUMP:  I am proud to shut down the government for border security, Chuck. 


O`DONNELL:  There are two things that Donald Trump cannot bring himself to do as president and always delegates to others.  One is firing people, even though he pretended to be good at firing people in his TV show where he pretended to fire people, and the other is surrendering.  So, Donald Trump left it to Mitch McConnell to announce the president`s surrender today on the Senate floor. 


SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER:  I had an opportunity to speak with Trump president Trump and he has indicated he`s prepped to sign the bill. 


O`DONNELL:  The president`s official surrender apparently will come in writing in the Rose Garden tomorrow at 10:00 a.m.  The White House has released a statement saying the president is going to be having an event in the Rose Garden, that presumably will be the signing of this bill and possibly whatever he`s going to do on a national emergency about this. 

President Trump will sign the government funding bill.  As he stated before, he will also take other executive action, including a national emergency to ensure that we stop the national -- these are White House words -- the national security and humanitarian crisis at the border.  The president is once again delivering on his promise to build the wall. 

These are the White House words.  Put them up there.  These are not my words.  This is the White House telling the ridiculous line that the president is fulfilling his promise to build the wall, protect the border, and secure our great country. 

Our great country is secure tonight, and the president has broken his promise to build a wall in every way he could possibly break that promise.  The president promised Mexico would pay for the wall, then the president promised that the Trump tariffs would pay for the wall, then the president promised it had renegotiated NAFTA agreement that Congress hasn`t approved would pay for the wall.  And then the president shut down the government to force Congress to pay for the wall, and then the president surrendered.  And there will be no wall. 

If the president does issue a national emergency declaration to build the wall, it won`t work.  It will not work.  And I can tell you that it won`t work from my experience when I was the chief of staff of the Senate Committee on Environment and Public Works, which has jurisdiction over all federal government building projects in the United States, a building project like this starting from zero today would be a minimum, minimum of two years away from breaking ground on the first inch of such a building project.  And that`s if the building project had the unanimous support of Congress and the country. 

No one working in the federal government now has any idea how to launch a building project like this under an emergency declaration, even if the Congress and the country supported that emergency declaration.  The government simply does not know how to do this.  But even more importantly, as you will hear in a moment from the highest legal authority we could find on this subject, the president`s emergency declaration will be challenged in court.  No one knows this subject better than former Acting Solicitor General Neal Katyal who has argued the most important cases on presidential emergency powers in the United States Supreme Court in the 21st century.

Neal Katyal will tell us what will happen in court if the president issues an emergency declaration.  The budget agreement that has passed the Senate and the House tonight specifically prohibits wall construction on the California/Mexico border, the entire California border.  And on several other stretches of the border, most of the border. 

Cal Perry will join us from the border tonight with a description of the areas where Congress has specifically forbidden any construction of a Trump wall.  So there won`t be one inch of wall built there ever. 

Congressman Pete Aguilar was one of the members of Democrats and Republicans from the House and the Senate who worked out the compromise language of the budget bill and specifically prevented the building of the Trump wall.  Congressman Aguilar will join us tonight and he can tell us how the deal was done inside that conference committee and why the Republicans on that committee surrendered and did not fight for the Trump wall. 

The Democratic leader of the Senate, Chuck Schumer, and the House Speaker Nancy Pelosi issued a joint statement tonight saying declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract from the fact that president Trump broke his core promise to have Mexico pay for his wall.  The Congress will defend our constitutional authorities. 

And joining us now is Democratic Congressman Pete Aguilar.  Also joining us is Neal Katyal, and NBC News correspondent Cal Perry.  Congressman Aguilar, to you, how did this deal come together in the conference committee?  And we know president Trump surrendered pretty much as soon as he tended Trump shutdown. 

But how quickly did the Republicans in this conference committee basically surrender on the Trump wall? 

REP. PETE AGUILAR (D), CALIFORNIA:  Well, the answer is immediately from the $5 billion number.  They never advocated for $5 billion aid in conference committee, so the important thing to know is we went into that room and we knew that we wanted to avoid a government shutdown, we knew we need to protect our national security, and we knew that we had to find that common ground.  And so that`s what we went in to this deal looking at.  We traded numbers throughout all of these different categories, but it was important that we did our work, that we had the ability to come together. 

And this is really just a credit to Chairwoman Nita Lowey and Chairwoman Lucille Roybal-Allard who guided us through this process and really represented our values throughout this entire negotiation. 

O`DONNELL:  Congressman, in this "Washington Post" reporting tonight from inside this story by Robert Costa and others that I was talking about with Rachel Maddow, there are elements of it that I do not believe, is the idea that President Trump was ever not going to go along with this.  But there is a lot more in this story, including how you on the House side, you Democrats in the House side are led by Nita Lowey actually lowered at the last minute, lowered your offer on any kind of fencing, funding, or structure funding on the border, and that actually surprised even your Senate Democratic counterparts. 

AGUILAR:  Well, I heard the same story too.  That was a meeting of the four legislative leaders, but our guidance was very clear.  We did not want to go any higher than what was in the fiscal year 2018 bill, which was $1.3 billion.  Republicans didn`t want to come down off of their number, and we just continued to work at it. 

And so, Chairwoman Lowey went into the room and said this is it, and Senator Shelby took the deal.  Again, for those watching, this is less in dollar money to barriers than the president was offered in December. 

O`DONNELL:  Before the shutdown? 

AGUILAR:  Before the shutdown.  This is less than he received after forcing 35 days of a shutdown.  So this is the best that we could do, but it is clearly a blow to what the other side was trying to get to. 

O`DONNELL:  Neal Katyal, I think you`ll be listening to every word the president has to say.  What they have in the schedule here is tomorrow, 10:00 a.m.  President delivers remarks on the national security and humanitarian crisis on our southern border.  That could be where he declares some kind of national emergency there.  Then what happens if he does that? 

NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL:  Well, I mean, Lawrence, you called this ridiculous, and I would go further.  I would say it`s a constitutional disgrace.  And the idea that he would announce this in the hallowed ground of the rose garden at the White House when it is so antithetical to what our constitution is about is beyond me.  So I`m a textualist. 

And, you know, our Founders in Article 1 in the Constitution said no money shall be drawn from the treasury, but in consequence of appropriations made by law.  And our Founders gave us that, it is clear as day.  And the president is getting very bad legal advice when they think that they can reprogram these funds on the grounds that it`s a national emergency. 

Now, there is the statute, the National Emergencies Act, but it says national emergency in this, and the president not getting what he wants from Congress is not a national emergency, nor is it a national emergency if the president can`t keep his promise to the American people to have Mexico pay for the wall.  That`s a Trump emergency.  It`s not a national emergency.  So this will be challenged in courts immediately and it will be pretty easy to throw this thing out.

O`DONNELL:  Neal, I`ve just been handed details from NBC News reporting on what the president is expected to say tomorrow and specifically about the money.  He is specifically intending to take $2.5 billion from the Department of Defense, from the drug interdiction program in the Department of Defense and use that for a building project inside of the United States of America, which is not in the jurisdiction of the Department of Defense. 

KATYAL:  Yes.  That`s what dictators and kings do.  It puts Congress in the driver`s seat for appropriations.  So, Congress decided after debate that the money, $2.5 billion should be spent on drugs.  They didn`t say it should go to his silly wall. 

And, you know, here`s the thing about the national emergency.  Presidents have lots of latitude in courts, as you know.  I argued a bunch of these cases.  But what they don`t have is latitude to define an emergency in contra invention to Congress. 

And here, we`ve had -- the 2018 election was all about should we have this wall or not.  Trump lost.  We then had a 35-day shutdown over should we have this wall or not.  Trump lost. 

So the idea that there`s a national emergency and that a president could declare it against what Congress wants is so dangerous.  I mean, a future president can do it about global warming, about guns, about health care.  Our Constitution says no, Congress makes these choices, not the president. 

O`DONNELL:  Cal Perry, you`re at the border tonight.  You can tell us as can the congressman.  Based on your reading of the legislation, where does the law actually prohibit any building of wall? 

CAL PERRY, NBC NEWS CORRESPONDENT:  Well, the crushing defeat seems to be compounded by detailed instructions of where the president and the administration cannot spend the money.  So normally in these spending bills we find out where money is going.  There are five locations in the Rio Grande Valley where Congress specifically says the president cannot build a wall. 

And keep in mind, as you said at the top, we`re already counting out California and Arizona and New Mexico and most of Texas, just the Rio Grande Valley, compounded further by five cities being named by Congress as untouchable to the administration saying no funds made available in this act shall be used for construction while consultations are continuing.  So, you have individual sites, Lawrence, like the La Lomita Chapel which we reported on a few weeks ago, and then you have entire cities. 

The reason for that is look at the gap behind me in this wall.  This is what we`re up against here.  The gap behind me is because of lapses in funding, but also you have private lands owners between that wall and the border, and those private land owners have rights, and those rights have to be respected.  Until they are, the gate behind me is not going to go in. 

The wall behind me took ten years to complete.  It`s still not done.  In a few months that gate is going to go in. 

So, it gives you an idea how ridiculous the entire process has become when you take it a step further you have Congress telling the administration you are not allowed to build walls rather than here`s funding for the wall, Lawrence.

O`DONNELL:  Congressman Aguilar, with this information we have that they`re going to take $2.5 billion from the Defense Department and somehow try to transfer that into spending for a domestic building project, it`s not clear at all what department that money would go to for this building project.  Obviously has no authorization from congress as a building project that the United States has to have.

What is your reaction to taking $2.5 billion from the Defense Department as the president is going to try to do? 

AGUILAR:  Well, it`s wrong and unconstitutional.  I`m not going to yield my time back to Neal but he was citing Article 1, Section 9 of the Constitution which gives us that responsibility.  So, we will use every tool possible in order to push back against the administration and hold them accountable.

But one of those tools is going to be having individuals from the Pentagon come to the Defense Appropriations Committee of which I serve on and to explain exactly what they plan to do and why they feel this transfer is allowable if the president chooses.  I heard the worldwide threats assessments just like you reported two weeks ago. 

And guess what, DNI Dan Coats never mentioned the southern border in 70 pages of testimony to the Senate.  So this is not a crisis.  There is a crisis, the humanitarian crisis, and our bill went a long way in order to help in that regard. 

But this is not a crisis.  We will push back.  We will hold the administration accountable.  I know they don`t like it, I know they haven`t had it, but it`s coming

O`DONNELL:  Neal Katyal, the case in 1998, the line item veto case in the United States Supreme Court where they tried to pass a line item veto for the president of the United States, and it was held by a majority of the court that, no, the only thing a president can do with legislation is sign it or veto it.  The president has no other choice but to sign it or veto it.  The president cannot reach inside the legislation and in effect change something, which a line item veto would allow him to do the way governors are allowed to do. 

That vote was 6-3.  Clarence Thomas voted that the president does not have the right to tamper with legislation that way.  I don`t see even on this Supreme Court with two Trump appointees how a Supreme Court could possibly find that the president has a right to do this. 

KATYAL:  I love coming on your show, Lawrence, because you make exactly the right point.  The line item veto case is devastating for these folks, and that`s one of many reasons I think this is not a conservative versus liberal issue when this case goes to the Supreme Court.  I think this is truly an American foundational issue.  Do we want to take away the power from the Congress invested in the president?

Now, what they`re going to say in response is, well, Congress has passed something, the National Emergencies Act which allows the president to reprogram funds.  There`s no doubt in true emergencies that can happen.  But here`s where I`m so worried about what the president does just apart from the constitutional disgrace he`s engaged in.  These statutes like the Emergencies Act are passed for important reasons.  Sometimes in a true emergency Congress can`t get together and act, so you need to authorize presidential swift action. 

And when President Trump does this works, what he does is erode the foundations of that emergency power and no future Congress can ever trust a president again.  And that`s a terrible place to be.  And so what he`s doing is not just destructive of our constitution, but it`s destructive of the slate of powers that a president truly should have in a real emergency

O`DONNELL:  Neal Katyal, you know you`re making important points when a member of Congress is willing to seed you some of his time.  Congressman Pete Aguilar, thank you very much for joining us and I appreciate it.  Cal Perry, thank you for that report from the border.  Really appreciate that. 

Shortly after Mitch McConnell delivered President Trump`s surrender on the Senate floor, Ann Coulter tweeted there`s no coming back from this, no emergency or presidential powers will allow him to build the wall ever after he signs this bill.  Trump has just agreed to fully open borders. 

Of course Trump did not agree to fully open borders, but Ann Coulter does seem to remember enough of her constitutional law classes to know that no emergency or presidential power will allow the president to build that wall ever.  She is right about that.  But is Ann Coulter speaking for any Trump voters not named Ann Coulter? 

The president was weakened today in more ways than Trump voters and probably anyone in the White House actually understands.  Mitch McConnell turned the ship of the United States Senate around and started heading away from Donald Trump for the first time.  When Donald Trump shut down the government, Mitch McConnell`s position was he would not consider even bringing up a bill to a vote in the Senate if the president did not already approve of that bill while it was being negotiated. 


MCCONNELL:  We`re not interested in having show votes here in the Senate.  We`re interested in bringing up something, the House has passed, 60 senators will support, and the president will sign. 


O`DONNELL:  And that is all over.  The constitutional truth of the matter is that the president only has as much legislative power as Congress decides to let the president have.  This week, Mitch McConnell decided to take his power pack from President Trump. 

Mitch McConnell agreed to a bipartisan legislative package without President Trump`s approval, and then Mitch McConnell scheduled that bill for a vote on the Senate floor without President Trump saying that he supported that bill.  And only when even President Trump`s people could see that the bill Mitch McConnell was bringing to the Senate floor was going to get over 80 votes, only then did Donald Trump let Mitch McConnell announce that Donald Trump supports it.  It`s a whole new ball game in the United States Senate because of that procedure.  Mitch McConnell decided he no longer needs Donald Trump`s support to bring a bill to a vote, and that alone is a devastating blow to Trumpism in the United States Senate. 

On days like this, we need experienced political observers who can see the big picture in all the individual maneuvers of the day. 

And we have that in our next guests.  Joining us now, John Heilemann, national affairs analyst for NBC News and MSNBC.  He is co-host and executive producer for Showtime`s "The Circus".  Also with us, Rick Wilson, he`s a Republican strategist and contributor to "The Daily Beast".  He`s the author of the book "Everything Trump Touches Dies."

John Heilemann, this is the end of the line for Donald Trump`s wall, and tomorrow in the Rose Garden, he tries to turn the corner apparently on the emergency idea. 

JOHN HEILEMANN, MSNBC NATIONAL AFFAIRS ANALYST:  Yes, he will -- he often claims victory when he loses.  He often changes the subject when he loses.  He will try to do both tomorrow. 

But I do think it`s super important in the long arc of his presidency, you think of the past two years and two months, we have not seen I believe any instance, except for possibly the original passage of the Russia sanctions that Congress did over Donald Trump`s objection.  Until now we have not seen the Congress assert itself, certainly not the Republicans in the Congress have said I`m sorry, we`re done, the political consequences of sticking with you are too high until exactly now. 

And I think that is a watershed moment in this presidency because, to me, it is the most important math calculation of all math calculations that every United States senator has to do.  Does it cost more to stick with Trump or cost more to -- does it cost more to abandon Trump?  For two years and two months, the answer has been it would cost us more to abandon him. 

At this moment on this issue and potentially now on many more issues going forward, in some great consequences and moment, including the existence of the Trump presidency, this will be the moment where Republican senators have figured out there`s a different math game in town, and that could be incredibly, incredibly bad news for President Trump

O`DONNELL:  Yes.  And, Rick Wilson, we have "The Washington Post" report from the inside of this story leading up to where we are now.  And they have, the Republicans in the conference committee, surrendering instantly on the Trump wall, not even attempting to get any kind of funding for that.  That was just confirmed. 

That reporting in "The Washington Post" was confirmed by us by one of the conferees, Congressman Pete Aguilar, that when the wall came up, the Republicans did, Republicans in the House and the Senate, in that Congress, didn`t even fight for it, didn`t even make a request. 

RICK WILSON, REPUBLICAN STRATEGIST:  Right.  Lawrence, as John said, they have reached an inflection point where they know they a big field coming up in 2020 in the Senate side.  It`s the bad year for Republicans in 2020 in the Senate.  And they recognize the damage they were taking from the shutdown and the damage they`ll take from this emergency and the constant drama over the wall, which side not appeal to the majority of American voters, even to a meaningful fraction of American voters.  It`s causing them this enormous political radiation they`re absorbing. 

And, you know, at some point in politics everyone cuts bait, and everyone says, well, you know I want to save my seat, I want to save my own position here, and this guy is dragging us down.  He`s a boat anchor around our necks.  So they decided, tonight at least, ask they`re going to show some spine. 

And I think that the reason that the president, who is desperate for any kind of fraction of an ability to claim a win on this, will go out tomorrow and basically in front of the cameras lie for half an hour and say my beautiful glorious wall is already 90 percent completed and this is a great victory and I can take this money from wherever I want.  It`s, of course, a fantasy, but, you know, he is certainly a guy who is prone to faboulism.  So, I think we`re going to expect tomorrow a fairly pathetic whimper to end this entire wall drama.

O`DONNELL:  So, John, Mitch McConnell said before the shutdown, he said emphatically, there would be no shutdown.  And he said that because as Senate majority leader, he knew he had the power to prevent it all along, but when Donald Trump did the shutdown, Mitch McConnell went along with it. 

HEILEMANN:  Yes, he did. 

O`DONNELL:  Throughout the shutdown, senators were up there saying you can bring a bill and we will pass it right now.  It increasingly toward the end McConnell was privately telling the White House there`s 70 votes in the Senate at least right now, a veto override margin for anything that I would bring to reopen the government. 

Then Mitch McConnell says you shouldn`t use emergency power.  He says it publicly, "I don`t want any emergency power used here."  Now, Mitch McConnell goes on the Senate floor today and says he supports the president use -- president`s use of the emergency power because that for him, I believe, is the end game.

The president will try to use the emergency power.  He will be immediately stopped with an injunction in court.

HEILEMANN:  Correct.  Correct.

O`DONNELL:  And then Mitch McConnell doesn`t have to pay any attention to him.

HEILEMANN:  Correct.  It is the -- it is for McConnell, again, a cost-free fig leaf for the president.  If that`s what it takes to make this all go away, Mitch McConnell can live with that.  And I think that`s exactly right.  There`s no question there will be no national emergency.

The courts will stop the president.  And most Republicans, privately and in some case publicly, think the national emergency is a bad idea.  I do want to say though just as I think it`s super important, and Rick said something that I am inclined to say a various time, they found their spine.

They didn`t find their spine.  What they found was -- they`re now using a different algorithm to calculate their self-interests.  That`s all it`s ever about with these people is their self-interest.

And so to me, the reason this is significant is not about the shutdown.  It`s not about the wall.  It`s an answer to the question of people who have been asking us for two years, saying there`s no way Trump will ever be impeached and convicted in the U.S. Senate because they have no guts, they have no spine.

And I keep saying, it doesn`t have anything to do with guts and spine.  It has to do with when does the moment come when Republicans do a different math, and the math says we are free to leave Trump because if we stick with him, it costs us more.

This is the first thing, an issue of policy, government funding, and immigration where they have realized there`s a different calculus.  And I think the important thing here is that this kind of thinking is the kind of thing that leads them to challenge Trump on a variety of other things.

Again, not because of spine, but self-interest, and potentially to challenge him on the question of his entire presidency because it`s not going to be about spine or principle or caring about America.  It`s about them being able to keep their jobs.

O`DONNELL:  We have already run through one commercial break on this breaking news.  We`re going to have to get to one now.  John Heilemann, Rick Wilson, thank you both for joining us.

And when we come back, former Acting FBI Director Andrew McCabe has a new book out coming out next week.  He will join us on this program next week.  But he has already spoken to "60 minutes" about many things, including the serious discussions that he participated in at the Justice Department about removing President Trump from office using the legal process of the 25th Amendment, which has never been used before.

And later in tonight`s LAST WORD, the presidential campaign came to the floor of the United States Senate today.  We`ll take a look at how the Democratic presidential candidates voted on the budget bill today and how they will have to explain that vote on the campaign trail.  They didn`t all vote the same way.


O`DONNELL:  "THE WASHINGTON POST`S" Greg Miller has read former Deputy FBI Director Andrew McCabe`s new book and noted this about Andrew McCabe`s experience working with Attorney General Jeff Sessions of Alabama.

The FBI was better off when you all only hired Irishmen, Sessions said in one diatribe about the bureau`s workforce.  They were drunks but they could be trusted, not like all those new people with nose rings and tattoos.  Who knows what they`re doing?

I guess I`ll have to ask Andrew McCabe about all those drunk, trustable Irishmen on Tuesday of next week when he joins us in our first MSNBC discussion of his new book entitled "The Threat, How the FBI Protects America in the Age of Terror and Trump".

In an excerpt published in "The Atlantic," Andrew McCabe says he viewed the president as someone who could not be trusted and whose inner circle operated at times like it was serving a Russian mafia boss.  "I wrote memos about my interactions with President Trump for the same reason former FBI Director James Comey did to have a contemporaneous record of conversations with a person who cannot be trusted." 

Andrew McCabe has already recorded his first television interview which will be on "60 Minutes" this weekend.  Andrew McCabe explained why he opened an obstruction of justice investigation of the president after the president fired FBI Director James Comey and made Andrew McCabe the acting director of the FBI.


ANDREW MCCABE, FORMER ACTING DIRECTOR, FBI:  I was speaking to the man who had just run for the presidency and won the election for the presidency and who might have done so with the aid of the government of Russia, our most formidable adversary on the world stage.  And that was something that troubled me greatly.

SCOTT PELLEY, HOST, 60 MINUTES:  How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

MCCABE:  The next day, I met with the team investigating the Russia cases, and I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward?  I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that, were I removed quickly or reassigned or fired, that the case could not be closed or vanish in the night without a trace.

I wanted to make sure that our case was on solid ground and if somebody came in behind me and closed it and tried to walk away from it, they would not be able to do that without creating a record of why they made that decision

PELLEY:  You wanted a documentary record --

MCCABE:  That`s right.

PELLEY:  -- that those investigations had begun because you feared they would be made to go away?

MCCABE:  That`s exactly right.


O`DONNELL:  This morning, Scott Pelley said that Andrew McCabe described meetings at the Justice Department where officials seriously discussed the legal process of removing the president using the 25th Amendment about four months into the Trump presidency.


PELLEY:  There were meetings at the Justice Department in which it was discussed whether the vice president and a majority of the cabinet could be brought together to remove the president of the United States under the 25th Amendment.  These were the eight days from Comey`s firing to the point that Robert Mueller was appointed special counsel.  And the highest levels of American law enforcement were trying to figure out what to do with the president.


O`DONNELL:  After this break, we`ll have more on Andrew McCabe`s revelations from inside the Justice Department and what it means to that Justice Department starting tomorrow, the first full workday for the newly confirmed and sworn in Attorney General William Barr.


O`DONNELL:  For the first time in history, the vice president of the United States decided to say publicly today that he has not been part of an attempt to seize the president`s job.


MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES:  I never heard of any discussion of the 25th Amendment, and, frankly, I find any suggestion of it to be absurd.  I have never heard any discussion of the 25th Amendment by members of this government and I would never expect to.


O`DONNELL:  We are joined now by David Leonhardt, op-ed columnist from "The New York Times" and Mimi Rocah, a former federal prosecutor and a former assistant U.S. attorney to the Southern District of New York.  She`s also an MSNBC legal contributor.

Mimi, so much to talk about here.  But imagine, if you will -- but wait, you don`t have to imagine it.  Andrew McCabe says it happened.  Discussions in the Justice Department, lawyers studying the 25th amendment, which I started to study a month into the Trump presidency and talked about it here, the removal process by the vice president and the majority of the cabinet of the president to replace him with the vice president.

MIMI ROCAH, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK:  You know, look, so many people probably haven`t heard of the 25th Amendment before Trump became president.  But I think in many ways, it`s not about what we`re talking about and even what McCabe is talking about, though it makes for a good story to talk about those conversations.

What we`re really talking about is the threat that McCabe and others perceived at the time, the threat that they perceived in Trump.  And I do not understand how someone now, knowing what we know now, some of which maybe McCabe knew.  We don`t know exactly what he knew at the time but how anyone now could look at that and say that that was wrong or an irrational belief on McCabe`s part.

So we can parse the things that he says, the Justice Department put out that statement today that was really a non-denial denial.  I mean it parse words very carefully.  They`re going to call into question his credibility because he has apparently made mistakes in certain areas, doesn`t mean that he`s not a truth teller, but it is clear that at the time he was right in what he perceived about Trump.

O`DONNELL:  David Leonhardt, just one excerpt from the book "The Washington Post" found, "During an oval office briefing in July 2017, Trump refused to believe U.S. intelligence reports that North Korea had test-fired an intercontinental ballistic missile.  He thought that North Korea did not have the capability to launch such missiles.  He said he knew this because Vladimir Putin had told him so."

DAVID LEONHARDT, OP-ED COLUMNIST, THE NEW YORK TIMES:  I mean, do you laugh or cry, right?  I mean Donald Trump through his whole life, through his rise to fame in New York as a real estate developer has essentially not cared what the truth is.  He wants to invent whatever reality is convenient for him and that`s what we see him doing there.

I have to say about the 25th Amendment, Lawrence, I actually, in some ways, take some cheer from it because it`s a sign of how our government should work.  People in the Justice Department understanding that their loyalty is to this country and to the Constitution rather than to the president under whom they`re serving.

O`DONNELL:  Yes.  They started talking about the 25th Amendment two months after I did.  And I thought we had serious reasons to start talking about it very quickly into this presidency.  We`re going to have to do a break here.

Mimi Rocah, David Leonhardt, thank you both very much for joining us.

And when we come back, the 2020 presidential campaign came to the floor of the United States Senate today.  That`s in tonight`s LAST WORD.


O`DONNELL:  The Democratic National Committee announced this afternoon that we are now four months away from the first Democratic presidential primary debate which will occur on this network in June.  It will be a primetime debate carried across three NBC Networks in two languages.  You can see it here on MSNBC, also on NBC, and Telemundo.

We don`t know what the most urgent issues and questions will be in June.  But if the debate were held next week, one of the big questions would be about the votes cast in the Senate today.  Some of the Democratic senators who are running for president voted for the budget agreement and some voted against it.

Today`s vote shows us how those candidates are positioning themselves in the campaign and for the debate that`s coming up in June.  We`ll take a look at how the candidates voted after this break.


O`DONNELL:  Here are two Democratic presidential candidates voting opposite ways on the budget bill today.


UNIDENTIFIED FEMALE:  Mr. Booker -- Mr. Langford, aye.  Miss Klobuchar, aye.


O`DONNELL:  They were the last two candidates to vote today.  The others, Senator Kamala Harris, Senator Elizabeth Warren, Senator Kirsten Gillibrand had already voted no on the bill.

Amy Klobuchar is the only announced candidate who voted yes.  Senator Sherrod Brown who is considering a possible presidential campaign also voted yes for the bill.

At first glance, this looks like a simple, liberal versus less liberal, divide with the liberal senators voting no and the less liberal senators voting for the compromised budget bill.  But then came this vote.

That was Senator Bernie Sanders in the middle of the screen there voting for the bill.  He did not vote with the most liberal Democratic senators who were running for president.  Might that mean that Bernie Sanders is not going to run for president?

We asked each of the candidates why they voted the way they did.  We got a reply from Senator Harris`s office, Senator Kamala Harris`s staff telling us that she could not support increase funding for Homeland Security which she sees as dysfunctional and in need of a better relationship and stronger oversight.

Senator Harris was especially concerned about increasing the size of the detention facilities that are holding families, children, and others who have committed no crimes.  You can imagine on a debate stage that Senator Klobuchar and possibly Senator Sherrod Brown would say that they share Senator Harris`s concerns but decided, in the end, to support the compromise because it was the best agreement that could be obtained by continue -- to continue to fund the government.

But that does not sound like a Bernie Sanders` answer, does it?  I mean as a presidential candidate, Bernie Sanders` pitch was not exactly I will fight for the best compromise that we can reach with Republicans in Congress.

Senator Sanders` office gave us this statement.  "While I have concerns about aspects of this bill, I will vote for it because I cannot turn my back on the two million federal employees and private contract workers who would be forced again to work without pay.  For these federal employees and their families going without pay again would be an act of extreme cruelty which I cannot support.  I am also concerned about the millions of people who would be denied access to government services."

That still sounds like a solid answer for Bernie Sanders if he is on the presidential debate stage.  Senator Harris, Senator Warren, Senator Gillibrand all cast no vote that is consistent with their political brand.

Cory Booker whose brand is a bit mixed between liberal and compromise or who can work with both sides cast the vote to show up on the liberal side of his brand.  Amy Klobuchar whose brand is I know how to work with both sides and get something done, cast the vote today that shows her ability to compromise to get something done.

All of the Senate Democrats who voted against the bill are running for president except one.  The junior senator from Massachusetts Ed Markey voted no.  In this case, he was voting the way his senior senator did, Elizabeth Warren.  How would have Markey have voted if Elizabeth Warren weren`t running for president?

Senator Markey voting in agreement with Senator Warren made things much smoother for Senator Warren back in Massachusetts where her Democratic partner in the Senate won`t have to explain why he voted the opposite way that Senator Warren voted.

Senator Markey`s staff told us tonight that he voted against the bill because U.S. immigration and customs enforcement has been overspending its budget and expanding its detention capacities by manipulating the program.  We did not hear from Senator Booker, Senator Gillibrand, Senator Klobuchar on why they voted the way they did.

With so many senators running for president now, every major Senate vote is going to be an important campaign moment because now, now before these senators vote, they`re going to have to know how they will defend that vote on the presidential debate stage which is now only four months away.

That`s tonight`s LAST WORD.

"THE 11TH HOUR" with Brian Williams starts now.

BRIAN WILLIAMS, MSNBC HOST:  Tonight, revelations from Andrew McCabe, the aftermath of Comey`s firing, the discussion of removing Trump from office, some generally stunning details of what it is like on the inside.

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