New York Times reports Trump tax figures. TRANSCRIPT: 5/7/19, The Last Word w/ Lawrence O'Donnell.

Guests: Susanne Craig, David Cay Johnston

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

We are lucky enough to have Susanne Craig with us. 

RACHEL MADDOW, MSNBC HOST, "TRMS":  Excellent. 

O'DONNELL:  She's one "The New York times" reporters who broke the big news tonight in which she has revealed the formula of just how rich your father has to be for you to lose $1 billion over ten years. 

MADDOW:  Yes, losing $100 million-plus on average a year for 10 straight years is a remarkable feat.  I mean, hat's off, you know what I mean?  You couldn't do it.  I couldn't do it. 

O'DONNELL:  And you got to -- I mean, one of the things I wonder about which is not in the piece, you know, Donald Trump was not his father's only son.  He was his father's only son who was losing all of that money all the time.  And Donald Trump's siblings weren't really costing their father anything. 

MADDOW:  Well, and also he was doing it while running casinos.  Like, again, I'm no big business brain, but I think the one business other than drug dealing I might be able to definitely turn a profit at was running a casino.  But still it's like you said, it's hard work, somebody's got to do it. 

O'DONNELL:  Rachel, you know what I think? 

MADDOW:  What? 

O'DONNELL:  I think you're in the right business, right here. 

MADDOW:  Thank you very much. 

O'DONNELL:  Thank you, Rachel.

MADDOW:  Thanks, Lawrence. 

O'DONNELL:  Well, Harvard Law Professor Laurence Tribe is going to be with us.  Last year, he wrote a book about impeachment and cautioned against impeaching Donald Trump.  But as the evidence has been mounted against the president, Professor Tribe supports what Elizabeth Warren said today when she became the first senator speaking on the floor of the Senate to call for the impeachment of President Trump.  Professor Tribe will join us later in the hour. 

Our first guest tonight, as I just mentioned, is one of the reporters who delivered the breaking news of the night in "The New York Times." the breaking news tonight is that "The New York Times" has obtained ten years of Donald Trump's tax information. 

"The New York Times" report tells us three big things.  One, Donald Trump doesn't pay taxes.  Two, Donald Trump loses massive amounts of money in business.  And three, Donald Trump has always been financially dependent on his father. 

Those are all things that Donald Trump does not want voters to know about his financial life.  All of those things clash with the image of successful businessman that Donald Trump presents to his supporters.  It is possible that the six years of tax returns that have been legally demanded from the IRS by House Ways and Means Committee Chairman Richard Neal would reveal a similar partner for Donald Trump possibly with financial supporters other than his father, like perhaps a Russian oligarch or two. 

Those tax returns are being illegally withheld from Chairman Neal by Treasury Secretary Steven Mnuchin, but Chairman Neal will eventually succeed in obtaining those tax returns because the law is entirely on his side.  In the meantime, though, tonight's "New York Times" reporting is the most detailed picture yet of ten years of Donald Trump's financial life from 1985 to 1994 and it shows Donald Trump declaring losses of $1 billion over that ten-year period while paying relatively small amounts of federal income taxes in only two of the 10 years. 

In eight of those years, Donald Trump paid no taxes at all.  One year shows a mysterious surge in interest income for Donald Trump of $52.9 million with no accompanying evidence of any assets that could produce that much interest.  But Donald Trump paid no taxes that year because his business losses were higher than that interest income.  In the middle of the period studied by "The New York Times," Donald Trump testified to Congress about just how hard it was out there for a businessman like him. 

(BEGIN VIDEO CLIP)

DONALD TRUMP, THEN-BUSINESSMAN:  The real estate business, we're in an absolute depression.  I see no, no sign of any kind of an upturn at all.  There is no incentive to do anything.  There is no incentive to invest.  Everyone's doing badly.  Everyone. 

(END VIDEO CLIP)

O'DONNELL:  Well, not everyone.  As "The New York Times" points out, Donald Trump's father, who was a much more stable businessman than his son, did consistently well during those same years.  "The Times" reports while Donald Trump reported hundreds of millions of dollars in losses for 1990 and 1991, Fred Trump's returns showed a positive income of $53.9 million with only one major loss, $15 million invested in his son's latest apartment project. 

And leading us off in our discussion tonight is Susanne Craig.  She's a Pulitzer Prize winning reporter for "The New York times."  She co-authored tonight's report in "The New York Times."  The piece is entitled "Decade in the Red: Trump tax figures show over $1 billion in business losses." 

Also joining us for a political perspective on this, John Heilemann, national affairs analyst for NBC News and MSNBC.  He is co-host and executive producer of Showtime's "The Circus". 

And David Cay Johnston is with us.  He's a former Pulitzer Prize tax reporter for "The New York Times", tax reporter for "The New York Times".  He's now with report.org.  He has previously reported on much of Donald Trump's financial empire. 

And, Susanne, let's begin with this exhaustive ten-year study you've done.  You did not obtain tax returns, but you did obtain what appears to be internal IRS documents about the returns.

SUSANNE CRAIG, THE NEW YORK TIMES:  We have a copy of his transcript, of his tax returns.  So, it's not the tax return.  It's a transcript of his tax returns for this period. 

O'DONNELL:  And that's something that has to have leaked out of the IRS. 

OK.  The transcript can show no answer at that particular point. 

You clearly are protecting sources in this.

CRAIG:  Yes.

O'DONNELL:  But the source material that is being used are basically worksheets that the IRS maintains on taxpayers. 

CRAIG:  That's right.  When they go in to talk to taxpayers, they'll use these to summarize what's going on with the taxpayer.  It's not -- it's not -- the tax return is not the only record that the IRS keeps of what's going on with the taxpayer.  There are other things, including the record that we have. 

O'DONNELL:  And these contain the big pictures.  A return would show us a lot more detail. 

CRAIG:  Yes.  What was frustrating about our -- we have so much information.  As a reporter, I'm always focused on what we didn't get and we don't have a lot of the schedules, which show, for example, you mentioned there is this, like, huge surge in interest income for one of the years that we had, 1989, and we can't -- it was 50-plus million. 

It was one of the largest incomes ever disclosed by a taxpayer in that year.  And we don't have the schedules that show the source of that.  It really -- like, it was really frustrating because we had a lot of transparency into Donald Trump's finances at the time because the casino commissions were all over him. 

O'DONNELL:  Yes, that's an important point.  Let's pause there for a second. 

CRAIG:  Really important point. 

O'DONNELL:  One window you have into this is that because he was a casino operator in New Jersey, he had to hand over a lot of financial documentation to the gaming commission that controls casinos. 

CRAIG:  We couldn't have had a better window in a sense of finding out what this mystery number was because he had -- he was under scrutiny because of all the failures he had in New Jersey with the casinos.  And we couldn't figure out where this interest income was coming from. 

And it really underscores to me the importance -- you know, when you sort of looking at why is this important now?  It's important now because we need to understand the sources of his income.  We have the number.  We don't have the schedules that show, here's all the people that were paying him money.  Super important. 

O'DONNELL:  What do you think this package of information suggests to us about the most recent six years of tax returns that Chairman Neal is trying to obtain? 

CRAIG:  That there are potentially a lot of sources of income that we just don't understand.  Even if we get the front page of the tax return, the 1040 as we call it, we still need to see the schedules and we need to understand, look, the schedules and all the partnership information backing it up, you know?  Donald Trump has had these -- he's had a tweet where he's like my tax returns are this big.  We need to get all of that information to fully understand where his money is coming from. 

This is a person who is in the White House.  He's an elected official.  We don't understand the hidden hand.  We don't understand who is paying him. 

O'DONNELL:  Now, I actually never --

CRAIG:  And it's really important. 

O'DONNELL:  -- expected his personal tax return information to be this revealing because what I wrongly assumed was that he had a bunch of different corporations and all of these business activities are taking place in separate corporations.  We don't necessarily know the names of them.  But it turns out he works in partnerships as you report in "The Times."

CRAIG:  Yes.

O'DONNELL:  And basically only gets accounted for in personal tax returns. 

CRAIG:  No, it all flows on to his tax return. 

O'DONNELL:  Yes. 

CRAIG:  You know, initially, when I -- I've been covering Donald Trump's taxes now for two or three years, just day in and day out, and initially, I thought the reason he didn't want us to see his tax returns is because it's going to show he's not making as much money as we thought or -- I think we laid bare he's not the greatest businessman on earth, but the fact that he is fighting and he is suing his bank, his accounting firm and all of these people to stop his tax returns from becoming public, it suggests to me that there is a lot more there than just I'm not that great at business. 

There is something hidden about where the sources of his income are and that's sort of where we're looking now.  And I think some of the things that we saw in these earlier tax returns, I think really foreshadow the fight that we're going to see now.  And that's what I'm looking for, and that number, really, you know, who is behind this interest income?  We'd love to know. 

And I'd love to see the current, you know, the modern tax returns.  But we just don't want to see the 1040.  We want to see the sources of income on it. 

O'DONNELL:  Let me bring in another tax expert, David Cay Johnston, who won his Pulitzer Prize for tax reporting for "The New York Times."

And, David, want to get your reading of what you've learned tonight in these new documents. 

DAVID JOHNSTON, "THE MAKING OF DONALD TRUMP" AUTHOR:  Well, they show that Donald's myth that he's the modern Midas is completely and utterly false.  That instead of creating wealth, he's a massive wealth destroyer.  In fact, "The Times" points out that one year, he apparently accounted for about 1 percent of all the reported business losses in the country, hundreds of millions of people out there. 

So it's all a fraud and he's a con artist.  Essentially, Susanne and her partner, Ross Buettner, have pulled back the curtain on the wizard and shown that he's a con artist and Americans need to begin understanding that.  The next big question we need to go to is, so after Fred Trump died, who was it that kept putting money out there for Donald to keep his money losing enterprises going? 

Not that we don't have an idea of who that might be, perhaps a wealthy man living in Eastern Europe. 

O'DONNELL:  Well, David, that's exactly my point in my introductory script here.  When I was reading, Susanne, all the support that Fred Trump maintained for his son through so many losing ventures, that becomes habitual for someone like Donald Trump, that you -- who replaces Fred Trump in this picture in the 21st century? 

CRAIG:  Well, one of the people is Mark Burnett from "The Apprentice."  There is no question about that.  He becomes an important source of income. 

But we really don't know on the modern tax returns.  The last page of the tax returns that we have that were made public, David Cay Johnston was mailed them in 2005.  We don't have any window into the modern era of his finances. 

And one of the incredible things about Trump's finances is they're so shifting.  That's what we even just found out from -- we've been following him now since birth to now 1995 and he's a corporate stock rater that didn't really work out.  He's doing marketing.  You know, it worked out.  It didn't. 

Like there are so many iterations of his businesses.  And the modern tax returns are more or less kind of a black hole for us in terms of what are the sources of it, what is the business mix and how successful has it been?  We know so little about it.

And, you know, as somebody who is watching all this, the most important thing is what is the hidden hand?  Who is influencing him in the White House that we don't know that he's getting money from?  Maybe it's not there.  Maybe it is. 

This is a guy who is fighting so hard to keep these from public purview.  You just have to wonder what is there.  The more he does it, the more you sort of wonder, like, what's this about? 

O'DONNELL:  Yes, David, I want to go back to that point you made about the other IRS data that Susanne quotes in "The Times" report, which is the IRS keeps comparative data, especially at the high end of income earners, I should say, not income taxpayers because Donald Trump's not an income taxpayer. 

And Donald Trump has shown in this reporting at the time in those years to be one of the biggest losers in America. 

JOHNSTON:  Well, so one of the things people should understand is, so why wasn't Donald Trump audited?  Imagine for a moment you're an IRS auditor, you sent to do Trump's taxes.  He shows a loss of hundreds of millions of dollars.  You conclude half of it may be fraudulent.  He only lost half that much. 

There is no revenue there so you close the case.  Particularly as if happened in the case of one auditor I interviewed who was assigned Trump's taxes one year, you have lawyers threatening, you know, the end of your career if you make trouble for him.  If there is no money to be had there, the IRS just basically let's you go by.  And that's a fundamental problem in our tax law and it adds to the reasons that it is imperative that the House Ways and Means Committee and hopefully eventually the Senate Finance Committee do their duty of oversight and investigate how the IRS is handling the taxes of people like Donald Trump. 

O'DONNELL:  John Heilemann, before you comment, let's listen -- let's refresh our memories about how Donald Trump presents himself to his voters.  What kind of businessman he is.  Let's listen to this. 

(BEGIN VIDEO CLIP)

TRUMP:  I'm really rich.  I'll show you that in a second.  And, by the way, I'm not even saying that in a brag -- that's the kind of mindset, that's the kind of thinking you need for this country. 

(END VIDEO CLIP)

O'DONNELL:  What happens to that line, John? 

JOHN HEILEMANN, NBC NEWS NATIONAL AFFAIRS ANALYST:  I imagine he'll keep saying it. 

O'DONNELL:  I mean, he is still rich.  Let's remember that part. 

HEILEMANN:  Richer than many people.  The truth has never stopped Donald Trump from what his claims might be.  I imagine he'll keep say that until the day he die, regardless of whether we see his taxes or not. 

I will say that I think if you think about the three points you made at the beginning, right, one, he's not that rich, two, he doesn't pay taxes, three, he was reliant on his father, right?  They're revealing in different ways.  As David said, the first reveals the main thing politically, which is that he's a fraud, and that the presentation -- that was not the only reason he got elected. 

Certainly part of the traction he got with the Republican nomination contest was based not just on the aspiration thing of him being a rich man that you should admire, but also on the resentments that he stirred up.  That was a big part of it, right?  But he's a fraud politically. 

The second thing is related to how little he pays, as David also suggests.  He may also be a crook.  So there is a legal element to that, right? 

And then there is the third element, related to the father, a political and psychological component.  Hillary Clinton's people picked up on it very quickly.  You remember in the first debate in 2016, they know that a sore toe for Donald Trump would by to raise his father and he needed his father to get any kind of financial success. 

And they hit him on it early into the debate, it was a moment, the half hour in the first debate when he lost it because she had drilled in to this psychological tender spot for him.  And I think for any Democrat who's thinking about running against Donald Trump in 2020, if you're thinking about a psychological profile in addition to a legal and political profile and how you run against him, the relationship with the father and the psychological weakness that it exposes is one you can hammer again and again in a much more devastating way than Clinton did in 2016. 

O'DONNELL:  Is it still your sense that people who are still Trump supporters have baked in this kind of thing? 

HEILEMANN:  I think the ratio of aspiration to resentment is much more -- resentment is the reason that people -- the culture of grievance that he feeds.  People that support him now are not supporting him because, oh, my god, they think he's rich, although I'm sure there's some people who also think that. 

I think those two things.  Aspirational, he's a billionaire, he has his name on building, was part of it.  They give them entree.  And driving the cultural resentments and grievances of a lot of Republicans which is a large part of why he ultimately won the nomination, won the presidency and continues to have the rock solid base that he has. 

I think this thing, the legal and psychological implications are more important now than the political thing, stripping away the notion that he's a rich man, I'm not sure how many votes that takes away from him. 

O'DONNELL:  So, David, imagine you're a soy bean farmer out there and losing money rather severely because of Donald Trump's illegal tariff regime that he has imposed on China, China then retaliating.  Agricultural incomes dropping in this country every day, overall agriculture income dropping every day of the Trump presidency, and those people are now going to be reading at some point in time in the next week or so, next few days, this new account of Donald Trump financial mastermind, this new account of Donald Trump the great businessman, who many of them voted for in the hope that their agricultural incomes would actually increase. 

This might have some kind of resonance with them at this point. 

JOHNSTON:  Well, as foreclosure notices arrive and you look at the possibility of losing your farm, that certainly should concentrate some minds about did we get snookered here by Donald Trump?  I think you're going to see that in other parts of the economy as well, as people begin to realize that things are not as we were promised, but this is not going to happen overnight.

And I absolutely agree with John that to many Trump voters, resentment is driving them much more now than the aspiration that you, too could be like Donald Trump, something I've got to tell you has always sounded like a nightmare to me because he is such a miserable human being. 

O'DONNELL:  Susanne, so, a lot of us, a lot of the viewers and me are wondering, how do you lose all that money?  Like, how do you lose it? 

HEILEMANN:  It takes a lot of work. 

O'DONNELL:  Whose money is it and how do you end up still flying around in your private plane?  And you report in your piece, Mr. Trump was able to lose all that money without facing the usual consequences, such as a steep drop in his standard of living, in part because most of it belonged to others, to the banks and bond investors who had supplied the cash to fuel his acquisitions.  So, he's basically losing borrowed money. 

CRAIG:  A lot of it was borrowed money and the interesting part of it is borrowing money flows out of losses on to his tax return.  And because of the IRS code and the way it works, he is able to turn those losses into essentially a gift card from the IRS to shelter taxable income going forward.  So he didn't have to pay taxes on all the losses -- he was able to shelter his income going forward for the amount of losses he had. 

It's an incredible thing.  A lot of it was bank money.  Some of it was his, but a lot of it was bank money. 

O'DONNELL:  One of the things that David suggested, it is possible, this being Donald Trump, that he exaggerated his losses, that he declared more losses than he actually had to the IRS so that he could continue to pay no income taxes. 

CRAIG:  Well, it was bank losses.  Yes. 

I think when you look at this period and when I think about it, the incredible thing is, like, I've been, like, following this, like, day in and day out, you would think that the one decade he would have done well in was this one.  He wrote "The Art of the Deal" in 1987.  It was, like, his thing saying I'm the master of the universe.  He lost money that year. 

Like, it's incredible when you look at that and you think this is the decade you would have thought he would have done the best in and he lost money every year.  He lost not only money, he lost millions of dollars every year. 

HEILEMANN:  Here's the thing we know about really rich people, is that really rich people think that you're a sucker if you're losing your own money, you know?  The one thing you can say about Trump is he's not a sucker.  He plays other people for suckers.  That's been one of the secrets of his success.  Whether it's the lenders and the other people he's now convinced he is a thing he's not. 

But Donald Trump has a lot of defects, but he's not one of the suckers born every minute. 

O'DONNELL:  And, David, one of the things I always marveled at at Trump is he lived through a period and had money where money could make enormous amounts of money.  He could have been a relatively early investor, for example, in IBM, in the 1960s with his inherited money.  He could have been an early investor in Apple.  He could have been an early investor in Microsoft. 

He could have had Andy Warhol art.  He lived in Manhattan with cheap art falling off the walls has turned into multimillion dollar art.  He has none of that.  He had no eye whatsoever for what was valuable in the world. 

JOHNSTON:  Well, he could have been the biggest real estate developer in New York, something he keeps claiming, instead of a distant also-run, if he actually understood how to get ahead in the real estate business in New York. 

The news media bears some burden here for buying his absolute nonsense and treating it as reality.  And we should not lose sight of that.  It is important now that we make sure that facts get checked against claims by Trump. 

One of the things that's about to happen is Trump is going to claim soon that the IRS leaked this data.  I'd be very surprised if Susanne and Ross got this from the IRS.  Trump probably requested his transcript.  Lots of taxpayers do.  He might have had to show it to bankers, to litigants, casino control commissioners or someone he had an agreement with, like a prenuptial agreement. 

So, I would be absolutely floored it was it leak out of the IRS, where if you just keystroke in to look at, say, your tax return, Lawrence, an alarm goes off and a security person says what are you doing looking at Lawrence O'Donnell's tax return. 

O'DONNELL:  Yes, David, that's what I've been wondering about all night, because I know all that, about how it works inside the IRS.  What I was not aware of is this IRS data is something that you can obtain and is used outside of the IRS. 

JOHNSTON:  Yes.  So I think there are a number of people who have portions of Trump's tax returns and other financial data, and I think some of that's going to begin to slip out, and I'm sure that Susanne and Ross have more bullets that they're going to be firing in the future.  It makes me wish I was not a pensioner but still at "The New York Times."

O'DONNELL:  Susanne, you make the point on your sourcing that your source legally possesses these documents, was in legal possession of the documents. 

CRAIG:  Yes. 

O'DONNELL:  And David's just given us a sense of how broad that can be.  I began the night, John, believing this stuff only existed inside the IRS, but this is why David Cay Johnston's here. 

HEILEMANN:  I think you can -- I think in a lot of cases when you apply for mortgages, you often view -- the banks you're applying for financing for, just a standard mortgage, you get a tax transcript.  And so, there are a variety of people, like, many millions of Americans at some point in their life have applied for a tax transcript or given permission for someone to look at a tax transcript. 

And so, there's a -- you know, given the number of transactions that Donald Trump's been involved in, it wouldn't surprise me if there are dozens upon dozens of people who have legally -- who legally possess, whether it's legal for them to turn them over to other people is a different question, but who legally possess those transcripts, I think there must be many. 

O'DONNELL:  Susanne, you were in touch with the White House trying to get comment from the president or his people as you were doing this work.  As I read their response, there was no specific response to anything that you specifically report in here. 

CRAIG:  No, there wasn't.  They question that these transcripts may not be accurate, but the interesting thing is we are in a weird -- because we've done a lot of work on the Trump family.  We have several years of Fred Trump's tax returns that we have not published.  We published pieces of them.

O'DONNELL:  This was on previous reporting that you've done.

CRAIG:  Previous reporting on an investigation we did into Donald Trump's wealth in 2018 that we got ahold of several years of Fred Trump's tax returns.  We asked the source to provide us with the transcript for Fred Trump's tax returns, matched up line by line, dollar by dollar. 

O'DONNELL:  Wow.

CRAIG:  It's pretty persuasive. 

O'DONNELL:  Susanne --

HEILEMANN:  I'd like to see when you're reporting a story like this. 

(LAUGHTER)

O'DONNELL:  Susanne, thank you very much for joining us tonight. 

CRAIG:  Thanks. 

O'DONNELL:  Really in this very busy night for you.  I appreciate that, Susanne Craig.

David Cay Johnston, John Heilemann, thank you all for starting us off tonight.  I really appreciate it. 

When we come back, Harvard Law Professor Laurence Tribe will join us.

On this day in history, history was made on the Senate floor today when Senator Elizabeth Warren became the first United States senator speaking on the Senate floor to call for the impeachment of Donald Trump. 

(COMMERCIAL BREAK)

O'DONNELL:  Twelve hours from now, the House Judiciary Committee is scheduled to vote on holding Attorney General William Barr in contempt of Congress after he refused to comply with a subpoena on Monday to deliver to the committee the full, unredacted version of the Mueller report. 

According to "Politico", during a Democratic leadership meeting Tuesday afternoon, Chairman Nadler said he would move forward with the contempt vote unless he strikes a deal with the Department of Justice.  Negotiations were expected to continue tonight over that. 

Also tonight, the House Judiciary Committee is threatening to hold former White House counsel Don McGahn in contempt if McGahn complies with a White House demand that he refuse to cooperate with the committee.

In a letter to McGahn's lawyer, Chairman Jerry Nadler of the Judiciary Committee writes, "Mr. McGahn is required to appear and provide testimony before the committee absent a court order authorizing noncompliance, as well as provide a privilege log for any documents withheld.  Otherwise, the committee will have no choice but to resort to contempt proceedings to ensure that it has access to the information it requires to fulfill its constitutionally mandated duties."

"The New York Times" reports that "The White House's stance increases pressure on Mr. McGahn, a crucial witness both to Mr. Mueller and the House Democrats investigating abuse of power and obstruction of justice, to ultimately decide whether to defy Mr. Trump and cooperate with the committee or hold the administration's line."

As our next guest points out, Trump has overplayed his hand in trying to gag McGahn and suppress a large number of clearly unprivileged documents.  He has set things up to make McGahn's live testimony all the more explosive when it finally takes place.

Harvard Law School's Constitutional Law Professor Lawrence Tribe will join us after this break.

(COMMERCIAL BREAK)

SEN. DICK DURBIN (D-IL):  What about Bob Mueller?  Should he be allowed to testify before this committee?

WILLIAM BARR, ATTORNEY GENERAL OF THE UNITED STATES:  I've already said publicly I have no objection to him.

DURBIN:  And Don McGahn, should he be allowed to testify?

BARR:  That's a call to the president to make.

DURBIN:  Well, he's a private citizen at this point as I would say.

BARR:  Well, I assume he'd be testifying about privileged matters.

(END VIDEO CLIP)

  O'DONNELL:  Joining our discussion now, Lawrence Tribe, Harvard law professor, and constitutional scholar.  He's the co-author of "To End a Presidency, The Power of Impeachment."

Professor Tribe, can you untangle for us all these conflicts over who can testify, who cannot testify, what is privilege, what is executive privilege?

LAWRENCE TRIBE, PROFESSOR, HARVARD LAW SCHOOL:  I can try.  Executive privilege is really the privilege of confidential advice to the president.  But, of course, when the president authorizes its release, as he did when he said to Don McGahn that he could talk freely to Bob Mueller, that waived privilege and it was doubly waived when he said the report could be released.

So there is no real executive privilege here and what privilege there was, was waived.  And, in fact, the stonewalling that the president is now engaging in has gone completely over the top.  He's trying to claim that even when Mueller becomes a private citizen, he can be gagged by the president.

That's ridiculous.  There's no legal basis for it.  And I don't think that Mueller would stand for it.  And if he did accept the gag order from the president, he would be ordered by a court to testify.

But the main witness has got to be Don McGahn.  McGahn is the principal witness in the obstruction of justice portion of the Mueller report.  Hearing it from him live will make a huge difference to the nation.

People don't read a 468-page or 428-page, I almost got lost at the end of it.  People don't read all of that but they will watch the movie and the movie will make a powerful difference, especially after the president has made such a big deal out of keeping it all secret.

He said falsely that the report exonerated him.  Well, of course, if it did, he would want all of it and would want Mueller to testify about it.

But taking a step back, what we have here is a situation in which the Mueller report shows without any doubt that a hostile foreign power attacked the United States in its election, that Donald Trump welcomed that attack, benefitted from it.

And then he spent the last couple of years trying to cover it up in every possible way with 10 instances of felonious obstruction of justice, that over 700 former prosecutors, Republicans and Democrats alike, say established obstruction.  And the attempt by the president to say there was no collusion here, there was no obstruction here, I've been exonerated is nothing but lies.

And I trust that the American people will understand that.  That's why I stand with Elizabeth Warren when she says the time has come for people to stand up for principle.

I don't favor voting articles of impeachment tomorrow.  We have to have the hearings but they are clearly impeachment hearings, which will, among other things, increase the power of the House of Representatives to get all of the evidence that it needs.

As you pointed out, I take a rather cautious view of impeachment in my book, but there is a point when caution becomes cowardice.  And at a point when cowardice becomes betrayal, betrayal of the Constitution, and that point has come.

O'DONNELL:  I know you're a Constitutional law professor, not a politician.  What do you -- what's your reaction to -- when you hear political strategists saying this impeachment could be a politically bad move for the Democrats, could hurt them in the congressional elections, could hurt them in the presidential election?

TRIBE:  Well, one thing I say is that occasionally, doing the right thing is crucial.  And just political calculation is such a profound sellout that we can't afford to do it.

Secondly, nobody has a crystal ball.  Nobody knows how it will all unfold.  Thirdly, I think the American people will blame Democrats if they show that they don't have the courage of their convictions.

They have to get to the truth, not just to find out what happened before but to find out to whom is Donald Trump really loyal.  Who are the people and the institutions that fund that lavish lifestyle?  Where does all the money come from?

It's quite clear that Adam Schiff and the Intelligence Committee are looking into the question of whether we have a compromised president.  When he spent 90 minutes talking to Vladimir Putin and admits that he didn't once tell the dictator of Russia "stop meddling in our elections," he really gave the game away.  He's willing to talk to Putin about Mueller but not to Mueller about Putin.

The loyalties of this president are deeply in question.  And I think we owe it to ourselves, not just as a matter of accounting for the past, but as a matter of protecting the present and the future to establish a system that doesn't allow the continued penetration of our voting systems by Cambridge Analytica and its spawn, by Russia, by GRU, by all of these entities that do not have the interest of the American people at heart.

So we're talking about the security of the nation and the preservation of its Constitution.  Nothing could be more important.  And small-minded political calculations, which assume a crystal ball that none of us has anyway, are a way of basically giving away our precious heritage of the Constitution of the United States.  We cannot afford to do that.

O'DONNELL:  Professor Lawrence Tribe, always an honor to have you with us.  Really appreciate your perspective tonight.

TRIBE:  Great to be with you.

O'DONNELL:  Thank you very much for joining us.

TRIBE:  Thank you.

O'DONNELL:  Thank you.

And when we come back, there are reports from inside the White House tonight indicating that Donald Trump is afraid, very afraid of Robert Mueller testifying.

(COMMERCIAL BREAK)

O'DONNELL:  President Trump, the White House staff, and Republicans in Congress are afraid of Robert Mueller, according to an "Associated Press" report tonight.  The "Associated Press" is reporting the president stewed for days about the prospect of the media coverage that would be given to Mueller, a man Trump believes has been unfairly lionized across cable news and the front pages of the nation's leading newspapers for two years.

According to three White House officials and Republicans close to the White House, Trump feared a repeat but bigger of the February testimony of his former lawyer and fixer Michael Cohen, which dominated news coverage and even overshadowed a nuclear summit with North Korean Leader Kim Jong-Un.  A sense was growing in the West Wing that the special counsel's gravitas would add weight to some of the politically damaging and embarrassing material about Trump in the special counsel's report.

That "Associated Press" reports comes as Senate Majority Leader Mitch McConnell made a plea today on the Senate floor for Congress to simply move on from the Mueller report.  Mitch McConnell said that the matter should be regarded as "case closed."

Senator Chuck Schumer told Chris Hayes tonight that Mitch McConnell said that because Mitch McConnell and the president are afraid of Robert Mueller.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER:  We know one thing.  Both he and leader McConnell fear the full results of the report being made clear to the public.  The fact that he so often obstructed justice, the fact that the Russians did interfere repeatedly and strenuously in our elections, all of which prove Donald Trump being wrong.  And what Leader McConnell today on the floor was nothing short of despicable.

(END VIDEO CLIP)

O'DONNELL:  Today, Senator Elizabeth Warren took to the Senate floor where she read passages from the Mueller report for nearly 40 minutes.  At the beginning of her remarks, Senator Warren said this.

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN (D-MA), 2020 PRESIDENTIAL CANDIDATE:  What's at stake here is the Constitution of the United States of America.  Will Congress do its job and fulfill its constitutional duty to serve as a check on the president?

The answer from the majority leader and his Republican colleagues is no, case closed, case closed they cry.  Instead of reading the words of the special counsel's report, they just want to circle the wagons around this president.  Instead of protecting the Constitution, they want to protect the president.

This is a huge difference.  At its core, in the Constitution is the principle that no one is above the law, not even the president of the United States.

My oath of office is the same as Mitch McConnell's.  I swore and he swore to uphold the Constitution of the United States.  Our Constitution is built on the principle of separation of powers, precisely to prevent a dictator, an autocrat from taking control of our government.

This separation of power is part of the brilliance of our Constitution and it has served us well for centuries.  Yes, I took an oath to uphold the Constitution of the United States and so did everybody in the Senate and the House, including the majority leader.  And now we must act to fulfill that oath.

There is no political inconvenience exception to the United States Constitution.  If any other human being in this country had done what's documented in the Mueller report, they would be arrested and put in jail.

The majority leader doesn't want us to consider the mountain of evidence against the president.  That is wrong.

(END VIDEO CLIP)

O'DONNELL:  That speech gave Senator Warren a historic spot in the congressional record when she became the first United States senator speaking on the floor of the Senate to call for the impeachment of President Trump.

(BEGIN VIDEO CLIP)

WARREN:  I'm here to say one more time and publicly.  This is not a fight I wanted to take on but this is the fight in front of us now.

This is not about politics.  This is about the Constitution of the United States of America.  We took an oath not to try to protect Donald Trump.  We took an oath to protect and serve the Constitution of the United States of America.  And the way we do that is we begin impeachment proceedings now against this president.

(END VIDEO CLIP)

O'DONNELL:  After a final commercial break, our discussion will be joined by Jason Johnson and Rick Wilson.

(COMMERCIAL BREAK)

O'DONNELL:  We have breaking news at this hour.  A letter from the Department of Justice from the attorney general to Chairman Jerry Nadler of the House Judiciary Committee about tomorrow's possible vote on contempt of Congress by the attorney general.

The attorney general is basically saying to Chairman Nadler asking for a delay in that vote and saying that there cannot be a delay in that vote, that the attorney general will recommend that the president invoke executive privilege on everything that the Judiciary Committee is subpoenaing.

The letter specifically says "In the face of the committee's threatened contempt vote, the attorney general will be compelled to request that the president invoke executive privilege with respect to the materials subject to the subpoena.  I hereby request that the committee hold the subpoena in abeyance and delay any vote on whether to recommend a citation of contempt for noncompliance with the subpoena pending the president's determination of this question."

We are joined in our discussion now by Jason Johnson, the politics editor at "Theroot.com " and a professor of politics and media at Morgan State University.  He is an MSNBC contributor.  And Rick Wilson is with us.  He is a Republican strategist and a contributor to "The Daily Beast".  He is author of the book "Everything Trump Touches Dies."

And Jason Johnson, this is a somewhat complex legal tactic by the attorney general.  The point he is making in the letter is that some of the material in Jerry Nadler's subpoena, which is for the full unredacted Mueller report and the underlying documents includes grand jury material which the attorney general believes he is not legally allowed to deliver to the committee at this point.  And so he would then ask -- in order to avoid the citation of contempt, he would ask the president to invoke executive privilege on all of this.

And the letter seems to acknowledge that it is not all subject to executive privilege, but that would at least delay the processes in the movements against the attorney general.  So we might or might not have a vote 12 hours from now in the Judiciary Committee on contempt.

JASON JOHNSON, POLITICS EDITOR, THEROOT.COM:  Yes.  So, Lawrence, this is really simple.  You now have Barr has thrown down the gauntlet.  He has thrown down the gauntlet.  This is it.

The Democrats basically have to decide if they are actually the party of resistance and actually the party of oversight or if they're simply going to comply with the dictatorial tendencies of this administration.  The committee has every right to ask for the Mueller report.  They have every right to ask for every part of it.  They can keep the parts of it secret that they need to keep secret.

But if the full report cannot be seen by an actual congressional committee, then what was the report, to begin with?  And the idea that Barr who has basically worked as a personal attorney for the president is basically threatening I will take my ball, your ball, and five other people's balls home with me if you guys don't play by my rule is the clear sign of all that the Democrats need to stop pussyfooting around and start with impeachment proceedings.

O'DONNELL:  And Rick Wilson, one of the things that is striking to me in this letter is just how much William Barr does not want to be held in contempt.  I thought he was the kind of guy who just wasn't going to care what they did tomorrow morning.

RICK WILSON, REPUBLICAN STRATEGIST:  But I will say this, Lawrence.  He threw a gauntlet down and the middle finger of that gauntlet is extended.  And this is a Watergate-level of contempt for Congress.  This is a Watergate level.

This guy makes John Mitchell look like Mother Teresa.  This is a man who obviously -- you're right.  He is nervous about being held in contempt, but he is also basically saying to them I'll go the full nuclear option if you do this.  I'll blow it all up if you do this.

And I think this is -- as Jason said, this is a direct challenge to the Constitutional prerogatives that allow them to look at this material.  They got this grand jury material during the entire Lewinsky scandal.  They've gotten grand jury material before.  They're able to keep these things secret.

This is another example of Bill Barr schilling for this president, laying down for this president.  And he is willing to burn his reputation down even further obviously in order to do that.

If I were on the committee, I wouldn't even schedule anything but the vote.  Just roll it right out there.  The guy has nothing but contempt and should be therefore held in contempt.

O'DONNELL:  Jason, as much as Nancy Pelosi has for over a year now been trying to guide House Democrats away from impeachment for her strategic electoral vision that she believes that's a better approach to the 2020 election for the House and for the presidency, it seems that every day, every day the Trump administration pulls the Democrats, pulls Jerry Nadler, pulls the House Judiciary Committee closer to impeachment.

JOHNSON:  Yes.  They basically have to at this point, Lawrence.  I mean look, last week they were eating fried chicken because they said Trump was a chicken for not showing up.

They need to serve peach and mints every single week when they have a congressional meeting.  Impeachment, that's what they should be talking about right now.  And what you're seeing, Lawrence is that you've got 2020 candidates.

You've got Warren.  You've got Beto.  You've got Castro.  You've got even Harris has eventually moved to it.  Impeachment is a necessary political tool.

And here's the thing.  The idea that it's a political concern about 2020, this is America.  The members of Congress have been able to sell America on wars that they didn't like.  They've been able to sell a black president.  You can certainly sell impeachment of a crook.

O'DONNELL:  Rick, what's your political reading of impeachment?

WILSON:  I think Donald Trump wants impeachment like nothing else on earth.  He wants to turn this into a show that ends up in a vote where he will be exonerated in the Senate.

There is no chance right now, there is no moment right now where anybody can show me two-thirds in the Senate.  I don't even think that you would have every Democrat vote to convict in the Senate.  That's why it's a pointless effort.

I think you can have all the things that drive the friction up for Donald Trump that an impeachment procedure would do and hold these people accountable.  And that changes the political climate in the country where impeachment becomes something that is more relevant.

But right now, if you impeach Donald Trump in the House, you know what he does?  He raises $250 million and laugh his ass off about it because nothing happens in the Senate.  It will not -- he will not be convicted in the Senate.  There no days (INAUDIBLE) where Donald Trump is suddenly booed out of the White House because the House is suppose to impeach him.  Nothing will happen.

LAWRENCE O'DONNELL, MSNBC ANCHOR:  Jason Johnson, a quick last word.

JASON JOHNSON, American PROFESSOR:  He was going to do that anyway.  He is already going to raise $250 million.  Do the vote and force the Republicans --

WILSON:  More.

JOHNSON:  -- and defend a crook.

O"DONNELL:  All right, we're way into overtime.  Jason Johnson, Rick Wilson, thanks you both for joining us tonight really, appreciate it.  That is "Tonight's Last Word.  "The 11th Hour" with Brian Williams actually should have started a few seconds ago.

 

END