BREAKING: U.K. becomes first country to approve Pfizer’s Covid vaccine

Dr. Fauci testifies TRANSCRIPT: 5/12/20, The Last Word w/ Lawrence O'Donnell

Guests: Neal Katyal, Dr. Ashish Jha, Representative Chrissy Houlahan, Chris Murphy, Ashish Jha

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

So 10:00 a.m., you had to make a choice. You listened to the Senate hearing with the coronavirus task force witnesses, or you listened to the Supreme Court. What did Rachel Maddow choose?

RACHEL MADDOW, MSNBC HOST, "TRMS":  It was a very easy choice. Being able to listen in live to the Supreme Court is such an amazing novelty to me. So, yeah, I like built a whole, like, audio cave around me, where I had like my coffee ready to go and my note pad and my computer and my C-span radio app cued one the speaker.

It was really embarrassing. I didn`t move for two hours.

O`DONNELL:  We`re the same person almost. I made the same choice, but not with all of that support system.

And then I watched the hearing on -- I was recording the hearing, watched the hearing on video after the Supreme Court. So, it was -- like you, I hang on every word.

Neal Katyal is going to join us luckily in this hour with his interpretation, because who cares what I think when you can hear Neal Katyal?

MADDOW:  Exactly. I care what you think, Lawrence. I want to hear you talk to Neal about it.

O`DONNELL:  Thank you so much. Thank you, Rachel. Thank you.

MADDOW:  Thanks, Lawrence.

O`DONNELL:  Well, as we said, Donald Trump`s tax returns had their big day in the United States Supreme Court today. Two different cases.

The first case that the court listened to, heard the arguments on was the battle over this, a subpoena issued by the House of Representatives to the accounting firm that has possession of Donald Trump`s tax records and the second one was the legal battle over a criminal subpoena issued by the Manhattan district attorney in a criminal investigation that seeks Donald Trump`s business and tax returns, personal business tax returns.

And as I listened to those arguments today, it sounded to me like at least one of those cases is going to be successful in obtaining the Trump tax returns. But as I said, you know, why listen to me about it when you can listen to Neal Katyal, who has argued many cases before the United States Supreme Court, and he will join us later in this hour with his reaction to these historic arguments before the court today, which will also take their place in history among the 2020 Supreme Court arguments that were not held in the Supreme Court chamber.

And Laurie Garrett is back with us tonight. We`re going to get her reaction to the testimony we heard from members of the Trump coronavirus task force in that Senate hearing today.

Tonight, Donald Trump is a man alone. The Republican Senate, who stood by Donald Trump in his impeachment trial, are not standing by him in his trial by a public jury during the coronavirus pandemic. And that means that Dr. Anthony Fauci was able to speak publicly today about the pandemic, without Donald Trump over his shoulder disagreeing with him.

In testimony to the Senate Health, Education, Labor and Pensions Committee, when Dr. Fauci discussed his expectation that there will be a second wave of coronavirus in the United States, Donald Trump was not there to grab the microphone after him and say, I don`t think that will happen. When Dr. Fauci said that it was not extremely likely but just more likely than not that we will have a vaccine within a year or two, Donald Trump was not there to offer his scientific opinion that we will get a vaccine much sooner than that.

Donald Trump has actually said we will get a vaccine this year, in 2020.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  We think we`re going to have a vaccine by the end of this year, and we`re pushing very hard.

(END VIDEO CLIP)

O`DONNELL:  He said that last week, not one of the Republican senators on that committee supported any of Donald Trump`s thinking about a vaccine or made statements, anything like this.

(BEGIN VIDEO CLIP)

TRUMP:  I feel about vaccines like I feel about tests. This is going to go away without a vaccine. It`s going to go away and it`s -- we`re not going to see it again hopefully after a period of time.

(END VIDEO CLIP)

O`DONNELL:  That was on Friday. That was Trump on Friday. That wasn`t Donald Trump in February.

Donald Trump was saying crazy things like that in February and March, that the virus was just going to disappear. But on Friday, knowing everything that we all now know, Donald Trump actually said on Friday, this is going to go away without a vaccine. It`s going to go away, and we`re not going to see it again, hopefully after a period of time. That`s a typical Trump time frame of reference. A period of time.

That is madness. Donald Trump said that after living through the deadliest month in America, in his lifetime. And we were all learning more and more and more about this every day during the month of April. We`re all learning more about it still every day.

Today`s hearing included four witnesses from the president`s coronavirus task force. Dr. Fauci, Dr. Robert Redfield, the head of the CDC, FDA commissioner, Dr. Stephen Hahn, and Admiral Brett Giroir, who is also a physician. They all listened without objection, when our first guest tonight, Senator Chris Murphy said this.

(BEGIN VIDEO CLIP)

SEN. CHRIS MURPHY (D-CT):  Dr. Fauci, Dr. Redfield, you`ve made news today by warning us appropriately of the dangers of states opening too early. But as Senator Murray mentioned, this is infuriating to many of us, because it comes hours after the president declared that we have prevailed over coronavirus, which I`m just going to tell you is going to make it much harder on state leaders to keep social distancing restrictions in place. It comes days after the president called on citizens to liberate their states from social distancing orders.

And I think you`re all noble public servants, but I worry you`re trying to have it both ways. You say states shouldn`t open too early, but then you don`t give us the resources to succeed. You work for a president who is, frankly, undermining our efforts to comply with the guidance that you`ve given us, and then the guidance that you have provided is criminally vague.

(END VIDEO CLIP)

O`DONNELL:  Donald Trump was not there today to grab the microphone and deflect the toughest question that the head of the CDC had to face about news reports that the CDC`s guidance on how to safely reopen certain activities has been suppressed by the Trump administration.

(BEGIN VIDEO CLIP)

MURPHY:  So reporting suggests, Dr. Redfield, that this guidance that was developed by you and other experts was shelved by the administration, that it was withheld from states because of a decision made by the White House. So my specific question is, why didn`t this plan get released?

DR. ROBERT REDFIELD, CDC DIRECTOR:  The guidances that you`ve talked about have gone through that interagency review. Their comments that have come back to CDC, and I anticipate they`ll go back up into the task force for final review.

MURPHY:  But we`re reopening in Connecticut in five days, in ten days. I mean, this guidance isn`t going to be useful to us in two weeks. So, is it this week, is it next week? When are we going to get this expertise from the federal government?

REDFIELD:  The other thing I would just say is that the CDC stands by the technical assistance to your state and any state upon any request. I do anticipate this guidance to be posted on the CDC website soon.

MURPHY:  Soon.

REDFIELD:  I can`t tell you -- soon, but I can tell you, your state can reach out to CDC and we`ll give guidance directly to anyone on your state on any circumstance that your state desires guidance from.

MURPHY:  "Soon" isn`t terribly helpful. Thank you, Mr. Chairman.

(END VIDEO CLIP)

O`DONNELL:  The only hint of Trumpism on the Republican side of the committee today came from Rand Paul who tried to suggest that it is a fully scientifically proven fact that if you survive a coronavirus infection, you are absolutely immune to coronavirus.

Dr. Fauci had to point out the scientific difference between a likelihood and a proven fact. The history of other viruses, said Dr. Fauci, suggests that immunity possibly temporary, is likely. Not definite, likely.

Rand Paul was leaning on the immunity issue very heavily, because he believes it`s the silver lining. Those are his words, the silver lining. Rand Paul thinks that the good news about the 14,000 infected workers at meatpacking plants around the country, 14,000 infected workers, 57 dead, Rand Paul believes there`s a silver lining.

He sees a silver lining in that.

(BEGIN VIDEO CLIP)

SEN. RAND PAUL (R-KY):  The silver lining to so many infections in the meat processing industry is that a large portion of these workers now have immunity. Those workers should be reassured that they likely won`t get it again instead of being alarmed by media reports that there is no evidence of immunity.

(END VIDEO CLIP)

O`DONNELL:  Those were carefully chosen words, written, written no doubt by his staff. The silver lining.

Would you be reassured, would you say, oh, great, let`s go back to work in that meat packing plant that almost killed me, with the worst sickness I`ve ever had in my life and did kill my friend who was working beside me, because we likely won`t get it again?

Rand Paul and his staff wrote the words "the silver lining" to so many infections. They wrote those words. They premeditated those words.

As of tonight, the United States now has 1,381,092 reported cases of coronavirus and as of tonight, the United States has suffered 83,421 confirmed deaths from coronavirus. And at today`s hearing, Dr. Fauci said those numbers understate the truth of the virus spread in America because many people have died in New York and elsewhere with coronavirus symptoms but were never tested for coronavirus before or after death.

And when Senator Bernie Sanders suggested that we could have 50 percent more coronavirus cases than we know about, than have been reported, Dr. Fauci did not disagree. Dr. Fauci, and no one else on the committee, saw a silver lining in that possibility of 50 percent more cases than have actually been reported.

The one Republican senator who did find Donald Trump guilty in his impeachment trial and voted to remove the president from office got Dr. Fauci to shoot down a Trump lie about President Obama after beginning with his disappointment with Admiral Giroir`s participation yesterday in the Trump rally in the Rose Garden about what a great job America has done on testing.

(BEGIN VIDEO CLIP)

SEN. MITT ROMNEY (R-UT):  Admiral Giroir, I`m going to take off where Senator Hassan spoke. I understand that politicians are going to frame data in a way that`s most positive politically. Of course, they don`t expect that from admirals, but yesterday, you celebrated we had done more tests per capita than even South Korea, but you ignored the fact that they accomplished theirs at the beginning of their outbreak, while we treaded water during February and March. And as a result, by March 6th, the U.S. had completed just 2,000 tests, whereas South Korea had conducted more than 140,000 tests.

So partially as a result of that, they have 256 deaths, and we have almost 80,000 deaths. I find our testing record nothing to celebrate whatsoever. The fact is, their test numbers are going down, down, down now because they don`t have the kind of outbreak we have. Ours is going up, up, up. I think that`s an important lesson for us as we think about the future.

The president said the other day President Obama is responsible for a lack of a vaccine. Dr. Fauci, is President Obama or by extension President Trump, did they do something that made the likelihood of creating a vaccine less likely? Are either President Trump or president Obama responsible for the fact that we don`t have a vaccine now or in delaying it in some way?

FAUCI:  No, no, Senator, not at all. Certainly, President Obama nor President Trump are responsible for not having a vaccine.

(END VIDEO CLIP)

O`DONNELL:  Leading off our discussion tonight is Democratic Senator Chris Murphy of Connecticut. He`s a member of the Senate Health, Education, Labor and Pensions Committee.

Senator, thank you very much for joining us tonight.

I just want to begin with that phrase you chose, "criminally vague" to describe the guidance that you and we and the country has been getting from the president`s coronavirus task force.

MURPHY:  Well, thanks for having me, Lawrence.

Listen, we have a lot of smart people in Connecticut, but the CDC exists for moments like this. The CDC exists so we can pull export resources and provide a state like Connecticut specific guidance on how we reopen our state safely. And they have not done that.

Now, the reason they have done that isn`t because they didn`t come up with the document that tells states how to open day care centers and when to open schools, and when to close a school when tests suggest there`s a hot spot.

No, in fact, they developed that guidance. It`s the White House that is refusing to allow that guidance, that document to be sent to states. And why is that?

Well, it`s because President Trump just wants to play armchair quarterback. He doesn`t want to be in a position where he would have to take responsibility for decisions made about when schools open or close.

And so, the document that we have, the plan to reopen America, is criminally vague. It doesn`t have any specifics about how you open in this kind of setting or when you close a certain set of businesses when there reemerges infections in a city or county. And so, I just don`t understand why we aren`t getting more help from the CDC now. And I do understand it`s because of this directive from the White House.

O`DONNELL:  And when you say criminally vague, I assume it`s because that vagueness can lead to thousands of deaths?

MURPHY:  Of course. And again, we have smart people in Connecticut, but we don`t have the expertise in our state, nor do 49 other states have the expertise to make these very difficult and subtle choices about how you open a day care center, and exactly what protocols you need to have in place to keep those kids and those parents safe. That expertise resides at the CDC.

And the fact that this administration is not allowing the CDC to provide us with that guidance because President Trump just doesn`t want to have his hands on the response so that he can blame everybody else, that is not just criminally vague, that is criminally negligent, because ultimately, it`s going to result in potentially thousands of my constituents dying, because if we didn`t have the benefit of that expert advice from the federal government.

O`DONNELL:  When these witnesses who testified to your committee today appear with the president at one of those Rose Garden events, they never speak unless invited by the president to speak. And so, one of the things I found striking about Senator Romney`s exchange about President Obama was Donald Trump can stand up at those events and blame President Obama for their -- the administration not being ready for the coronavirus pandemic and blame President Obama for not having a vaccine, and none of those experts ever, ever get up and say, excuse me, I have to correct what the president just said. They will only speak when invited by the president.

So what we saw today was what they`re capable of saying once they`re free of Donald Trump.

MURPHY:  Yes. I think you saw a hint of that, but they were free to -- of their own volition to rebut any of the insane things that the president has said. And they didn`t necessarily take that opportunity today.

Listen, from the very beginning, I think we have always been vexed about this question as to what advice we give smart people who are working in the Trump administration. It is hard to watch some of these public servants stand behind this president as he lies through his teeth and then have them refuse to correct the record. At the same time, I`m pretty sure I want Dr. Fauci in the room, even if there are few times when the president is listening to his advice instead of some flunky or lackey.

So I think, you know, we treated these witnesses respectfully today because we understand the position we`re in. We`re glad they`re doing these jobs. But they do, I think, bear responsibility, probably more often than they do, to stand up to this president and correct his mistruths.

O`DONNELL:  Let`s listen how carefully Dr. Fauci voiced his concerns about premature reopenings. Let`s listen to this.

(BEGIN VIDEO CLIP)

FAUCI:  I`ve expressed then and again is my concern that some areas, cities, states, what have you, jump over those various checkpoints and prematurely open up without having the capability of being able to respond effectively and efficiently, my concern is that we will start to see little spikes that might turn into outbreaks.

(END VIDEO CLIP)

O`DONNELL:  But, Senator, several states have jumped over those thresholds that Dr. Fauci recommends they not jump over. And that`s the most he can say about it while he`s working for President Trump, I guess.

MURPHY:  Well, I mean, let`s be clear. No state is in compliance with the plan to reopen America, because the plan to reopen America presupposes that every state has adopted a system of robust testing, tracing of contacts, and quarantine.

No state has done that. You know why? Because the federal government has refused to design, implement, and pay for that system. And every single state does -- including mine, doesn`t have the resources to do that.

So I appreciate his warnings. But the people that he`s talking to need to step up quickly and give us the resources to be in compliance with that plan that he`s worried about us violating.

O`DONNELL:  Senator Chris Murphy, thank you very much for joining us tonight. We really appreciate it.

MURPHY:  Thanks.

O`DONNELL:  Thank you.

A quick programming reminder. Thursday night at 10:00 p.m., we will present a LAST WORD special, Joe Biden with Stacey Abrams. Presidential candidate Joe Biden will be with us for the entire hour. In the second half of our discussion, we`ll be joined by Stacey Abrams, who has been working to assure fair voting practices in the 2020 election, which has become much more of a challenge in the year of the coronavirus pandemic.

It will be Joe Biden and Stacey Abrams` first interview together. You viewers will have a chance to participate. Go to MSNBC.com/townhall to submit a question for Joe Biden and Stacey Abrams Thursday night, 10:00 p.m., right here on MSNBC.

Up next, two members of THE LAST WORD`s coronavirus task force, Dr. Ashish Jha and Pulitzer Prize-winning columnist Laurie Garrett, will give us their reactions to what they heard in that Senate hearing today. And what it means for the reopening of workplaces and schools around the country. That`s next.

(COMMERCIAL BREAK)

O`DONNELL:  In today`s Senate hearing, Republican Senator Mitt Romney gave Dr. Fauci a multiple choice question, with three possible answers. A, extremely likely, B, more likely than not, or C, kind of a long shot.

(BEGIN VIDEO CLIP)

ROMNEY:  Is it extremely likely we`re going to get a vaccine within a year or two? Is it just more likely than not? Or is it kind of a long shot?

FAUCI:  It`s definitely not a long shot, Senator Romney. I would think that it is more likely than not that we will. Because this is a virus that induces an immune response that people recover, the overwhelming majority of people recover from this virus. Although there is good morbidity and mortality at a level in certain populations, the very fact that the body is capable of spontaneously clearing the virus tells me that at least from a conceptual standpoint, we can stimulate the body with a vaccine that would induce a similar response.

So although there`s no guarantee, I think it`s clearly much more likely than not that somewhere within that time frame, we will get a vaccine for this virus.

(END VIDEO CLIP)

O`DONNELL:  Time to hear from our experts. Dr. Ashish Jha is with us. He`s the director of the Harvard Global Health Institute. He`s testifying tomorrow in the first hearing by the Select Committee on the Coronavirus in the House of Representatives.

Also, joining us, Pulitzer Prize-winning journalist Laurie Garrett. She is now an NBC News and MSNBC science contributor.

And, Dr. Jha, what about that multiple choice test of -- or let`s all remember that Donald Trump says we`re going to get a vaccine this year. Mitt Romney was asking within a year or two, and Dr. Anthony Fauci says more likely than not.

DR. ASHISH JHA, DIRECTOR, HARVARD GLOBAL HEALTH INSTITUTE:  Yes. So I tend to trust Dr. Fauci on this. And actually my own reading of the evidence is very similar to Dr. Fauci, that it`s not guaranteed. We`re not going to get it in 2020. I think that`s extremely unlikely.

But in 2021, I think there is a pretty good chance we will for all the reasons he outlined. But there is a little bit of a, you know, unknown here, because this is not a virus we`ve ever developed a vaccine to. So I think we have to be humble about our certainty on this.

O`DONNELL:  Laurie Garrett, you`ve pointed out that there are challenges beyond simply the discovery of a virus that works.

LAURIE GARRETT, MSNBC SCIENCE CONTRIBUTOR:  A vaccine that works.

O`DONNELL:  Sorry, a vaccine that works, yes.

GARRETT:  We know that we have a virus unfortunately that works.

O`DONNELL:  Yes, a virus that works, yes.

GARRETT:  Yes, discovery of a vaccine is only step one. Figuring out how to do all the international negotiations necessary to get multi-country buy- in, deal with patent issues and get a price point that`s reasonable, distribution for the whole world, 7.5 billion human beings vaccinated, that`s a whole order of magnitude more difficult than anything we`ve ever attempted in human history on this scale.

I would back up and say that I -- you know, Tony Fauci is being, I think, optimistic to even say we would have a vaccine within this two-year window, except to perhaps if you`re defining a vaccine as a theoretical event, tried in phase one, phase two, maybe even phase three trials, but not necessarily in commercial production. One reason I`m worried is the vaccines everybody is rushing full bore on are in the categories of mRNA vaccines and DNA vaccines.

And, you know, these are really hard to figure out how to do all the FDA approval on. We don`t have such vaccines in widespread use for any other disease. I think we have a lot of hurdles to climb.

And there`s one last thing, Lawrence, I would add, we have this strange situation going on in Wuhan where they are trying right now to conduct tests on 11 million people in ten days, because of seven people that have turned up testing positive for COVID. The index case in this tiny cluster got sick on March 17th, and walked out of bed feeling well on March 27th.

And somehow, carried this virus in his body undetected all this time. It resurged and he infected his neighbors. Wow.

O`DONNELL:  And that 11 million that they intend to test in Wuhan in less than two weeks, is more than the number of Americans who have been tested. We`re up to or in the middle of the 9 million range right now.

Let`s listen to what Dr. Fauci said about opening up schools in response to Chairman Alexander`s question.

(BEGIN VIDEO CLIP)

FAUCI:  The idea of having treatments available or a vaccine to facilitate the reentry of students into the fall term would be something that would be a bit of a bridge too far. Going back to school would be more in the realm of knowing the landscape of infection with regard to testing.

(END VIDEO CLIP)

O`DONNELL:  Dr. Jha, there you are, out of school at Harvard University. How did you interpret Dr. Fauci`s answer?

JHA:  Yes. So what Dr. Fauci was saying was two things. First of all, we`re not going to have the kind of treatment or vaccines that`s going to make people feel comfortable sending kids back to school this fall. So, is there a way we can get kids back?

We can, assuming there aren`t large outbreaks happening. But you`re going to need really extensive testing available at that time. And nothing I heard in the hearing today gave me confidence that we`re going to have that.

Admiral Giroir talked about 30 million to 40 million tests per month. That is about a million or a million and a half tests a day that`s a lot better than where we are right now. But not the level we would need if we were going to send kids back to school or kids back to college everybody back to work especially in the fall where we`re going to see a resurgence of COVID in the context of a flu season. We`re going to need a lot more tests.

LAWRENCE O`DONNELL, MSNBC HOST: Senator Rand Paul apparently was upset that Dr. Fauci said anything other than sure, everyone should go back to school in the fall, and he confronted Dr. Fauci about it and challenging his authority on it. Let`s listen to that.

(BEGIN VIDEO CLIP)

SEN. RAND PAUL, (R-KY): I think we ought to have a little bit of humility in our belief that we know what`s best for the economy, and as much as I respect you, Dr. Fauci, I don`t think you`re the end all.

DR. ANTHONY FAUCI, DIRECTOR NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: I`ve never made myself out to be the end all; I`m only voice of this. You used the word we should be humble about what we don`t know. Right now, children presenting with COVID-16 - or COVID-19 who actually have a very strange inflammatory syndrome, very similar to Kawasaki syndrome I think we got to be very careful if we are not cavalier in thinking that children are completely immune of the deleterious effects.

(END VIDEO CLIP)

O`DONNELL: Laurie Garrett, the going back to school question has become so much more complicated with these recent developments that we`ve seen in New York City and elsewhere of children suffering very badly.

LAURIE GARRETT, MSNBC SCIENCE CONTRIBUTOR: Yes. I mean, here in New York City, we have more than 100 cases of this Kawasaki syndrome or whatever exactly it is. This terrible inflammation syndrome in children and we had, I believe, five, who have succumbed to it. Yes, these pictures are really striking.

Kawasaki syndrome was not a well-known syndrome until we had a toxic shock syndrome outbreak in the United States back in the late 1980s. And that sparked a lot of interest in more research. But we still have a lot of mysteries just about so-called normal Kawasaki syndrome.

Now we add to it this mysterious virus that is capable of doing so much damage to the cardiovascular system, not to mention the immune response. I think we`re in dangerous territory if we cavalierly open schools without understanding what this syndrome is.

O`DEONNELL: Dr. Ashish Jha and Laurie Garrett, thank you both for starting us off tonight in this discussion of that hearing. I really appreciate it. And when we come back, it was an historic day in the Supreme Court, because no one was actually in the Supreme Court when the Supreme Court heard arguments in two cases involving Donald Trump`s tax returns.

Neal Katyal, who has argued many cases before the United States Supreme Court, was listening to every word. He will join us with his assessment of who is likely to win the legal battles over Donald Trump`s tax returns?

(COMMERCIAL BREAK)

O`DONNELL: Today, the Supreme Court heard arguments via teleconference in two cases about enforcing subpoenas for Donald Trump`s personal and business tax returns. The first case involves a subpoena from Congress to the company that prepares Donald Trump`s tax returns demanding copies of those tax returns and other related documents.

This case is not to be confused with the subpoena for Donald Trump`s tax returns issued by the Chairman of the House, Weighs and Means Committee, which by law has the authority to demand that the IRS submit any tax return directly to the Chairman of that Committee that the Chairman might request.

That case is proceeding on a separate legal track. The President`s lawyers argued that the congressional subpoena currently before the court was simply political harassment, with no legitimate legislative purpose. But Justice Sonia Sotomayor and Elena Kagan seemed to suggest that the judicial branch should not try to define what a legitimate legislative purpose is for the Legislative Branch of the Federal Government.

(BEGIN VIDEO CLIP)

JUSTICE SONIA SOTOMAYOR, CHIEF JUSTICE: I feel tremendous separation of powers problem when you`re talking about placing a heightened standard on an investigation that a committee is embarking upon.

JUSTICE ELENA KAGAN, CHIEF JUSTICE: It seems to me you`re asking us to do is to put the kind of ten ton weight on the scales between the President and Congress. And essentially to make it impossible for Congress to perform oversight and to carry out its functions with the President is concerned.

(END VIDEO CLIP)

O`DONNELL: In the second case that the court heard today, Donald Trump`s lawyers were appealing two consecutive rulings by the Federal District Court in New York and the Federal Circuit Court of Appeals in New York, ordering the accounting firm to hand over Donald Trump`s personal and business tax returns to the Manhattan District Attorney in a criminal investigation.

The Circuit Court of Appeal`s opinion, written by the Chief Judge Robert Catharine, is so legally airtight, according to most constitutional experts that it left Donald Trump`s lawyer, in this case Jay Sekulow, trying to invent a presidential immunity from subpoenas by any district attorney for any reason.

Jay Sekulow agreed that the district attorneys and their grand juries could investigate a President`s conduct. But he insisted that it would be unconstitutional for them to use their subpoena power against a President. Chief Justice John Roberts had this reaction to that argument.

(BEGIN VIDEO CLIP)

JOHN ROBERTS, CHIEF JUSTICE: In other words it is okay for the grand jury to investigate expect it can`t use the traditional and most defective device that grand juries have typically used which is the subpoenas.

JAY SEKULOW, TRUMP ATTORNEY: He can`t use a subpoena targeting the President and under his article 2 responsibilities and the supremacy clause that is our view would be inappropriate and unconstitutional. So we have not just--

ROBERTS: I don`t understand your theory in terms of distraction and all that which seem to go much farther than resisting the subpoena.

(END VIDEO CLIP)

O`DONNELL: Former Acting Solicitor General Neal Katyal, who has much personal experience gauging which way the justices are leaning during many Supreme Court cases that he has argued, will join us from right there from his home library next right after this break.

(COMMERCIAL BREAK)

O`DONNELL: Here`s some of Justice Elena Kagan`s reaction to the President`s lawyer`s presentation today in the Supreme Court fighting subpoenas for Donald Trump`s tax returns.

(BEGIN VIDEO CLIP)

KAGAN: No place do you make a case as to why these particular subpoenas place a particular burden on the President such that he will be prevented from carrying out his constitutional responsibilities.

And that`s what I took Clinton V. Jones to be saying, is that`s the kind of thing a President has to come in and show a sort of case specific argument about burden on the President. And are you making that kind of argument at all?

(END VIDEO CLIP)

O`DONNELL: Joining us now, a lawyer who has been there, Neal Katyal, Former Acting U.S. Solicitor General, who has argued dozens of cases before the United States Supreme Court. He`s also an MSNBC Legal Contributor.

So Neal, here`s my short hand reaction listening to every word. I have a feeling that the Supreme Court just might protect the tax returns from the congressional subpoena. But it sounded like the Manhattan District Attorney is going to get those tax returns.

NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL: So first of all, Lawrence, I think your viewers, I hope they did listen to the argument as you did, and I urge everyone to do so, because it is really America at its finest.

You know, nine justices who are throwing really hard questions, and trying to resolve their disputes this way and not in the streets or anything like that. It`s such a contrast to Donald Trump`s indication of Trump judges and Obama judges.

Because what you heard today was nine justices of the Supreme Court. And I agree with you. I think if you listen to the arguments, you see even though five of the justices have been appointed by Republican Presidents, I think you saw widespread skepticism on the court about Trump`s legal position.

Particularly with the case coming from New York about the district attorney but also I think with the Congress one, I think that was closer. But I think in both cases, you had one fundamental overarching principle that the court cared about, which is no one is above the law.

And Trump`s argument is essentially, I don`t have to bother complying with congressional subpoenas. I don`t have to comply with prosecutor subpoenas, even though, Lawrence, you and I and every other citizen in this country would have to comply with those subpoenas.

And particularly for a President who says he`s a Textualist President, who wants to follow the constitution as written, this is all wholly made up out of cloth and that`s what you heard the court getting at in these exerts he has been playing.

O`DONNELL: Neal, how important is it that these subpoenas were not actually directed at Donald Trump they were directed at the accounting firm in both cases?

KATYAL: Yes, it`s really significant. Because the court has twice in recent years, in our lifetime, had similar cases. One was the Paula Jones case, and the other was the Nixon tapes case. The Nixon tapes case, they were subpoenas directed right at the President.

Even then, the Supreme Court unanimously said that those subpoenas had to be enforced. That was true even though three of the justices on that court were appointed by Richard Nixon himself. In the Paula Jones case, two justices appointed by Bill Clinton, yet the court unanimously including those two justices said the President could be subject to a civil suit.

Here we`re not even talking anything about suing the President or trying to get his official records from the Oval Office. As the lawyer for the House and the District Attorney, both said this is about stuff in his accounting files. He doesn`t even have to bother being involved.

And it`s stuff from well before he was President. This is about payments to Stormy Daniels and other things that the President`s own lawyer, Michael Cohen has said there were financial and proprieties and potential crimes stemming from.

O`DONNELL: I think we both agree that the stronger case is the one from Manhattan, at least in the way the arguments played out today. But on the congressional subpoena, what I found so interesting was the position that we don`t want to invade the thinking of the House of Representatives, and just decide here in the Supreme Court that the House of Representatives is just conducting harassment.

That would have been in a not too long ago, the conservative position on the Supreme Court, that we should conservatively sit back here and not attempt to invade the thinking of the House of Representatives.

KATYAL: It`s not just the conservative position, Lawrence. It is the position of Donald Trump himself for two years in other cases. For example, when I argued the Muslim man case in the Supreme Court two years ago, I argued that President had illegitimate motivation - based on what he said.

He said, I think Islam hates us and things like that. What the Trump Administration said was oh, you`re not allowed to second guess the President`s motivations. Here they turn around and say you can second guess not just one person`s motivations but the entire United States House of Representatives and their committees.

That is just made up, bogus, and you know, I suspect the skepticism on the court will see hopefully some opinions that reveal that.

O`DONNELL: Neal Katyal, thank you very much for joining us tonight. Really appreciate it.

KATYA: Thank you.

O`DONNELL: And when we come back, a Freshman Democrat who flipped a House seat from Republican to Democrat has a plan for how to build a national strategy and a national workforce for contact tracing in the Coronavirus pandemic? This is exactly what President Franklin Delano Roosevelt would do. This is exactly the kind of thing that he did during the great depression. That`s next.

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SEN. TIM KAINE, (D-VA): The United States still has not engaged in a national contact tracing program, isn`t that right?

DR. ROBERT REDFIELD, DIRECTOR, CENTER FOR DISEASE CONTROL AND PREVENTION: When the outbreak started, sir, we had an aggressive contact tracing program, but unfortunately as cases rose, it went beyond the capacity, and we went to mitigation. So we lost the containment edge.

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O`DONNELL: Johns Hopkins estimates that nationally at least 100,000 contact traces are needed in the United States to track the Coronavirus spread, and we know that more than 30 million Americans desperately need jobs now, so why not have the Federal Government hire a couple hundred thousand of them?

Jonathan Haultser points out in his recent Daily Beast article that at the height of the depression 1933 President Roosevelt hired 275,000 people in four months for the newly created Civilian Conservation Corps, which was the fastest mobilization in American history.

Today a bipartisan group of lawmakers are doing what President Roosevelt would be doing now, and they have introduced legislation that would create the National Public Health Corps to hire the contact tracers this country needs to save lives.

Joining us now is Democratic Congresswoman Chrissy Houlahan. She represents Pennsylvania`s sixth Congressional District, and she is an air force veteran. Congresswoman Houlahan, how would this program work, how fast could you get it going?

REP. CHRISSY HOULAHAN, (D-PA): Thank you very much for having me, and this program would take a page out of the America Corp model that already is up and going. We already have the systems in place to do this.

Effectively what it would do is it would take some of those folks that are frankly already sidelined from America Corps, Peace Corps, other service organizations like that, and it would redeploy and re-skill and retrain them and augment them as well.

Those folks would be the boots on the ground that would do the tracking and tracing and testing and hopefully even the treating in terms of inoculation and vaccination alongside of the already existing community support networks and the already existing professional health care providers as well.

We just need a lot of people, as you mentioned, to be able to run a national or nationwide testing strategy. We need the tests, but we also need the workforce.

O`DONNELL: Let`s listen to what Senator Elizabeth Warren said today in that Senate Hearing about what is at stake in contact tracing?

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SEN. ELIZABETH WARREN, (D-MS): There are many things the states can do by themselves, and God bless them, they`re out there trying to do every day, to open more emergency hospitals and to do all kinds of work to try to keep their citizens safe. But contact tracing, we move. We move from place to place and state to state. This is something that needs national leadership.

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O`DONNELL: Dr. Anthony Fauci said in response to that, that we would of course have more infections and more deaths without adequate contact tracing. So this is a matter of life and death, and you`ve got a bipartisan group supporting this bill, don`t you?

HOULAHAN: We do, and you mentioned that I`m a veteran. I also happen to be an America Corps person as well. This bipartisan group in support of this happens to have heritages and backgrounds in service as well, and we have a really eclectic group of people who really genuinely believe that we do need a national testing strategy.

We do need a unified national testing strategy, and that is a really good way to ramp up the number of people we have to be able to do that as quickly as possible.

O`DONNELL: Is there something about military experience that gives you the notion that we can start from zero and build something very quickly?

HOULAHAN: Absolutely. It`s a combination not only of my military experience but also, as I mentions, of my service background in the America Corps organization as well. We know what is possible. We know that we can do it together. We know that Americans are genuinely generous people and they`re looking for ways that they can be helpful right now.

And they`re also frankly, as you mentioned, looking for skills and job training that will allow them to be able to join this new economy. We don`t really know what the new economy is going to look like, but we certainly know that we`re not going to be able to open our economy safely without something like national testing and tracing and tracking.

And so this is absolutely within the realm of the possible. We are a nation of open-hearted people, and national service is something that we`re all very much called to. You`ve seen that in what`s happened in our nation over the last five or six weeks, our real answer to the call to serve and to help.

O`DONNELL: Congresswoman Chrissy Houlahan, thank you very much for joining us tonight with this very important idea. Really appreciate it.

HOULAHAN: Thank you. I very much appreciate it as well.

O`DONNELL: Thank you. That is tonight`s last word. "The 11th Hour" with Brian Williams starts now.

 

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