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Transcript: The Last Word with Lawrence O'Donnell, 5/11/22

Guests: Katie Porter, Tina Smith


Democrats urge voters to elect pro-choice candidates in November. Interview with Sen. Tina Smith (D-MN). Interview with Rep. Katie Porter (D- CA); Rep. Katie Porter sent a criminal referral to the Justice Department for recommending an investigation of a Trump cabinet member. "New York Times" reporters Alex Burns and Jonathan Martin have released new audio recording of Senator Lindsey Graham criticizing Donald Trump and defending Congresswoman Liz Cheney after the January 6th attack on the capitol.



And we are going to be joined tonight by some of the people who joined us on the night that we first had our hands on this leaked Supreme Court decision, including Congresswoman Katie Porter.

And it`s interesting to get people`s reaction now from that night, when hands were shaking when they were reading this thing.

ALI VELSHI, MSNBC HOST: Yeah, I look forward to it, my friend. Have a great show.

O`DONNELL: Thank you, Ali.

Well, once again today, the United States Senate did what it is structurally built to do -- it crushed democracy. A group of senators who represent 186 million people were defeated in a Senate vote today by a group of senators who represent 144 million people.

The Founders debated whether the number of senators should be proportional to the populations of the states and in the end landed on a compromise position of two senators per state, which did not seem like an atrocious perversion of democracy at the time because the big estate Virginia had only 747,000 people. But today, Washington, D.C., which is represented by zero senators, has basically that population, 700,000 people.

When the founders agreed in the end to two senators per state the total population of the country they were forming was 2.7 million people. It was inconceivable to the founders at the time that the population of Brooklyn would be 2.7 million people as it is today. The Founders were designing a government for a country whose entire population was the same size as the population of Brooklyn today. It was inconceivable to the Founders that the unexplored areas of the continent would eventually include a state called Wyoming, with a population smaller than many of the country`s biggest cities.

And that even deeper into the unexplored territory, there would eventually be a state named by its Spanish-speaking settlers that would eventually have a population to rival the size of some of the most influential countries in the world and the economy of that state alone would grow to be the seventh largest economy in the world if it were a separate country. The founders would have recognized that the 40 million people of California being restricted to voting for the same number of senators as the people of Wyoming is a crime against democracy.

We long ago outgrew the Senate formula of two per state, which has evolved to allow outcomes in the Senate that are supported by a minority of the American people. Today, the Senate imposed the will of 30 percent of the American people at most, against the objection of 70 percent of the American people. The Senate can do that.

That was just another day`s work in a legislative body functionally disconnected from democracy. All Senate Democrats except one voted in favor of the Women`s Health Protection Act which has passed the House of Representatives and used the Roe versus Wade framework to guarantee women and girls the right to choose what happens to their own bodies in pregnancy. The final vote was 49 in favor of the bill, 51 opposed.

Vice President Kamala Harris who presided over the vote at the time ready to cast a tie-breaking vote if necessary said this:


KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: I just presided over the Women`s Health Protective Act vote and sadly, the Senate failed to stand in defense of a woman`s right to make decisions about her own body. And let`s be clear, the majority of the American people believe in defending a woman`s right her choice to decide what happens to her own body. And this vote clearly suggests that the Senate is not where the majority of Americans are on this issue. It also makes clear that a priority for all who care about this issue, a priority should be to elect pro-choice leaders at the local the state and the federal level, because what we are seeing around this country are extremist Republican leaders who are seeking to criminalize and punish women from making decisions about their own body.



O`DONNELL: Republican Senators Susan Collins and Lisa Murkowski who support Roe versus Wade voted against the bill today. They support their own bill which they say more closely mirrors the rights established in Roe versus Wade.

Senator Murkowski released a statement today saying, quote: I strongly support women`s reproductive freedoms including the right to abortion established by Roe and Casey. The legislation before the Senate today, the Women`s Health Protection Act, goes well beyond the precedent established in Roe and Casey. It does not include the Hyde Amendment, which prohibits taxpayer dollars from being spent on abortions and has been the law almost as long as Roe. It does not include conscience protections for health care providers that refuse to perform abortions based on religious beliefs. It explicitly overrides the Religious Freedom Restoration Act for the first time. It also allows late term abortions without any notable restrictions.

After the vote, Senate Majority Leader Chuck Schumer said this:


SEN. CHUCK SCHUMER (D-NY): Elect more MAGA Republicans if you want to see a nationwide abortion ban. Elect more pro-choice Democrats if you want to see the right to choose a woman`s freedom available from one end of the country to the other. Elect more MAGA Republicans if you want no exception for rape or incest. Elect more pro-choice Democrats if you want to see women have the freedom to make decisions over their own bodies.

Elect more MAGA Republicans if you want to see a woman forced to carry the results of a rape or incest. Elect more pro-choice Democrats if you want to see women protect -- if you want to see women`s rights protected.


O`DONNELL: Democratic Senator Patty Murray said this after the vote.


SEN. PATTY MURRAY (D-WA): We are not going to let Senate Republicans override women`s voices. They may have spoken out today. They may feel they`ve won today. But women of America, it`s time for us to stand up and fight, and that is exactly what we`re going to do. Use your voice, we will use our voices, we will fight back, and this goes to the November election. Every one of you has to be willing to stand up and fight with us. We will be your voice. We will fight for you, stand with us.


O`DONELL: Join us now, Ali Vitali. NBC News, Capitol Hill correspondent.

Ali, the strategic question of the day is why didn`t the Democrats try to expand this vote to include Murkowski and Collins and Manchin -- and Joe Manchin by going more in the direction of the Murkowski-Collins bill?

ALI VITALI, NBC NEWS CAPITOL HILL CORRESPONDENT: Well, look, Lawrence, that was one of the open questions here. At the start of the week, when it was clear that this vote was going to be set up for Wednesday, one of the things I was asking Democratic leadership aides was, was the plan for this to fail in bipartisan fashion with more people voting in favor of it than against it or was the plan to just try to make it so that all Republicans would be on the other side of this and Democrats would have a more clear- cut line to run on in the midterms?

It`s clear now knowing the way that today played out, the way that they chose to go on this and the way that it was explained to me over the weekend by a Democratic leadership aide was they didn`t want to water down what they were voting on in order for it to be less meaningful to the base. Instead, they wanted to put forward the strongest version of the bill that they possibly could, all the while knowing that it was going to fail.

To them, they viewed this as a way to get people on the record ahead of the midterms and to hopefully energize their base. I do think that a lot of the polling that we`ve seen on this where the economy remains the number one issue for a lot of Americans and abortion and reproductive rights basically don`t rate on any of these polls and if they do they`re in the single digits, all of that at this point is out the window, because for both Republicans and Democrats alike, they`ve been running on this issue in theory for a long time but now they`re finally at a precipice where the landscape has significantly changed.

And as soon as the Supreme Court puts down this ruling, it will officially put Democrats and Republicans both in a place where it has been decided.

I do think though that as Democrats move forward and try to make this an election issue the way the vote went down today is really telling. It`s the exact same way that it went down in February when it failed. The same people who voted for it voted for it today. The same people who voted against it voted against it today, and it`s really telling because the landscape has significantly changed around this issue and yet it hasn`t changed the calculus in Congress.

It`s why you saw both senators there who you played as well as the vice president who I asked what comes next here, the only thing that can come next is looking to the states and making this an election issue.

O`DONNELL: Well, Dick Durbin apparently said something a little different about what might come next.


Let`s listen to what he said.



REPORTER: Why are Democrats chose not to work with Susan Collins, or Murkowski and tried to get a bipartisan result?

SEN. DICK DURBIN (D-IL): I think that that effort is underway. The votes today are important I think in our baseline politically, but we`re going to continue to reach out and try to build whatever margin we have today.


O`DONNELL: So, Ali, he sounds like he wants to reach out and work with Collins and Murkowski and which could get you to basically a vote of 52 in the Senate which would then have the power of majority and bipartisan.

VITALI: It would, but it also still wouldn`t get you to that magical 60 number where they would need to get in order to overcome a filibuster on this. I do think those conversations are happening in earnest but we`re presuming the 52 in that situation as well, and there are a lot of Democrats and frankly I`m interested in hearing what your next guest has to say on this where she would fall on this spectrum.

But there are a lot of Democrats who say that the way that the Murkowski- Collins plan is structured would still allow for a lot of loopholes at the state level where you would still end up with an America that looks like a lot of half of the states, allow abortion and a safe and accessible way, and then half of the states restrict and ban it and you end up sort of in the situation that you`re going to end up in when the Supreme Court ultimately decides and if it decides along the lines of that opinion that was leaked at the beginning of last week.

So the presumption that 52 Democrats would just get on board, that`s not necessarily what I`ve been hearing from senators in the halls of Congress who did view the Women`s Health Protection Act as the ideal that they wanted to vote on. Obviously, now, that seems like it`s on the dust heap because of the way the vote went today.

But at the same time, there might be other measures even aside from Murkowski-Collins that they could try to pursue there are some people who are floating doing this in a piecemeal fashion, trying to do smaller more targeted votes on reproductive issues. That`s something that could be explored going forward.

But I do think in having conversations with advocacy groups, people at the White House and of course people on Capitol Hill, there really is a sense right now that the federal government is pretty hamstrung if they weren`t going to do it this way. There`s not a ton that can be done otherwise, and that`s why a lot of people are not just looking to the states from an electoral capacity but also looking at the states and seeing if there are things that state attorneys general can do to better shore up reproductive access in the meantime, all of this in preparation for that ultimate Supreme Court decision later this summer, potentially June.

O`DONNELL: Ali Vitali, thank you very much for your reporting on this vote today and joining us tonight. Really appreciate it.

VITALI: Thanks.

O`DONNELL: And joining us now is Democratic Senator Tina Smith of Minnesota. She previously served as executive vice president of Planned Parenthood in Minnesota, North Dakota and South Dakota.

Senator, thank you very much for joining us again tonight you were with us on that shocking night when we were holding in our hands for the first time the leaked Alito first draft opinion and here we are with a vote in the Senate today that really is a reaction to that opinion. What happens next in the Senate?

SEN. TINA SMITH (D-MN): Well, what we have in this country is a Republican Party that is hell-bent to tell women what it thinks they should be able to do with their own bodies. They are hell-bent to take away a fundamental freedom and autonomy that I think all women`s deserve and all women expect.

And so that is the fundamental reality and as you said in your opening, Lawrence, this is all playing out in a United States Senate where a minority of voters have an extraordinary voice in what happens in this country because of the way the Senate is structured. So what has to happen is that those of us that are in the majority, those of us that represent percent of the of the voters have to have more power in the Senate to be able to express the voices of those voters. That`s what my colleague Senator Murray was saying just a moment ago.

This is going to come down now to this election, it`s going to come down to organizing and turnout and persuasion and all the work that we have to do in a democracy, understanding that in the United States Senate, majority does not rule. You have to have a super majority in order to be able to express the will of the people.

O`DONNELL: So, within a month or so, Roe versus Wade is going to be overturned by the Supreme Court. Will the Senate come back and vote on this again uh when it -- on the day that roe is overturned on the day that the judgment is announced by the Supreme Court or the day after?

SMITH: Well, you know, what I`m thinking about is how when Roe is overturned by the Supreme Court and let`s be clear Roe is going to be overturned because of the result of a multi-decade strategy by Republicans and their dark money donors, the Federalist Society and others to accomplish this end.


When that happens, what`s going to happen is that there`s going to be a crisis of health care for women in this country. Women who need abortions for whatever reason are not going to be able to get what they need, and that is going to create a major crisis and the accountability for that is going to rest with the Republican Party and those Republicans that have refused to stand up for women`s fundamental freedoms, fundamentally the United States Senate will do -- I will do -- Democrats in the Senate will do everything we can to clarify what the difference is but we don`t have the power to accomplish what the will is of the American public.

And that is why this election is going to be so, so important if you care about some of these -- this fundamental freedom.

O`DONNELL: Would you join an effort to pass the Collins-Murkowski version with 52 votes in the Senate and then, of course, that`s a meaningless thing to do because it would it would need to beat the vote threshold but then also ask those same senators to vote to change the Senate rule on the 62- vote threshold for just this one piece of legislation.

SMITH: Well, you -- as you probably know, I think that the filibuster is an archaic remnant of an old Senate that uh that it is needs to be abolished and I think that we should get rid of the filibuster for voting rights, for abortion rights, for that the health of our democracy. I think that it is absolutely fundamental.

On this issue, though, I -- you know, I think that if you really look at what is in the Collins-Murkowski bill as it stands right now, it does not prevent the kind of abortion bans that we see playing out in state after state after state. I do not believe that it does the hard work we need to do to protect the fundamental freedoms that Roe protected and I don`t think it gets us where we need to get to.

So that is a big problem, along with the problem that as you said, you know, even if we had -- you know, plus one votes to pass Collins-Murkowski, that doesn`t get us anywhere because you need 60, and I see no evidence that we have 10 Republicans that would be willing to join us in an effort to protect reproductive freedom. And that`s why the election is so important.

O`DONNELL: So it`s sounding like the Democrats message on the day that Roe is overturned in the Supreme Court is wait till the next election and then wait several months after the next election for all those new Democrats presumably if you get them to be sworn in in the Senate so that you then might be able to pass something assuming the 60-vote rule could then be overruled in the Senate, at least for this one piece of legislation.

So, you`re asking, it sounds like you`re -- the Democrats will be asking for about a year they`re going to be saying to pregnant women in America for about a year, don`t expect anything from the United States Senate.

SMITH: Well, I mean you`re touching on exactly what I`m talking about which is that this decision by the United States Supreme Court is going to -- it is creating a crisis of health care for women. It is unconscionable and the accountability for that rests with the Republican Party which is refusing to stand up for women`s fundamental rights. The only thing that I know how to do as a -- as a senator and also as a as an activist for reproductive rights as someone who worked at Planned Parenthood and as an organizer myself is to go out and organize voters to make sure that their voices are heard and that is our job right now.

I also would just note that there are many, many people and organizations that are now going to have to be pressed into action over these next months, some -- I mean, it`s starting right now, to do everything that we can to make sure that women have the capacity to access abortion care when they need it. And that is going to create as I said a crisis across this country, a health care crisis that we haven`t seen for many, many years.

So, it is -- and the thing that I just am focused on is like who is responsible for this and what are we going to do joining together to try to take action to make this place make our country a place where women have the fundamental freedom and autonomy to make decisions for themselves about their own bodies and their own lives.

O`DONNELL: Senator Smith, before you go I just want to ask you that -- sort of a personal question about how this feels to you now this Alito draft that we held in our hands together that first night, feeling the shock of it and I know you were still processing the shock of it, you`ve had over a week to live with it now, what does it feel like and what does it feel like to you with all your experience with Planned Parenthood and as a senator? What does it feel like to you that is coming? What is -- what is coming in this country in the next month or so when they make this decision?


SMITH: Well, you know, when you and I talked about this the night that we saw this opinion. It felt like a gut punch. It felt like uh yeah it was almost difficult to process because it was so stunning and so brazen and it`s disrespect for women and women`s ability to make decisions about their own lives.

And now that I`ve lived with it for a week, I have to -- I have to tell you -- I mean, today was a really difficult day for me personally. I was in touch with friends of mine who have worked so hard on these issues for so long and it -- I -- it just -- it just -- it is a hard, hard day to experience this.

But you have to persevere. You have to keep on working and when I wake up tomorrow, that`s what I will keep on doing, but it is -- as I said, I think the last we spoke, Lawrence, this is the first time that I can remember that we have seen the Supreme Court of the United States in my lifetime take away women`s rights, take away people`s rights and this is a sign I think of the great dysfunction in our democracy.

O`DONNELL: Senator Tina Smith, thank you very much for joining us again tonight. We really appreciate it.

SMITH: Thank you.

O`DONNELL: And coming up after this break, Representative Katie Porter joins us next.




MURRAY: What we saw today is Republicans telling Americans all over this country and women in particular that their voice is more important than yours, that what they believe in is more important than your choice about your own body and your own family and your own future. Now is the time to lift up our voices and fight back.


O`DONNELL: Joining us now is Democratic Representative Katie Porter of California. She`s a member of the House Oversight Committee and the deputy chair of the House Progressive Caucus.

Now, Representative Porter, you were with us on that night when we were holding the draft opinion in our hands for the first time. It was kind of - - it was shaking in my hands I was so shocked that we possessed it first of all and then that we were reading it.

On reflection now that you`ve had more than a week to live with it and you saw what the Senate did today, what are your feelings about it tonight?

REP. KATIE PORTER (D-CA): I think it is not my frustration, my anger, my disappointment hasn`t diminished one bit. In fact I`ve had more time to think about what the consequences of this decision are, not just in the immediate term for women who are who are worried about what this means for them, for families that are worried about what this means for them but thinking about the long-term economic consequences of this decision.

We saw Janet Yellen from the secretary of the treasury talking about what this decision will mean as women are forced to drop out of the workforce, are able to have to cut their education short. So I think my sense of frustration, my sense of rage, my sense of disappointment my anger as a citizen of this country that I feel like my own ability to control my health care is being taken away from me. And I think that we`ve we`re going to see the frustration and the rage the anger the disappointment, we`re going to see it keep building as people begin to really grapple with something that we thought we hoped would be unthinkable.

O`DONNELL: I want to go back to the point. You mentioned Treasury Secretary Janet Yellen pointing out the economic consequences of this for women. Most women, most -- a majority -- who use abortion services, already have one child. So what`s happening there in many, many cases is a decision about what is economically possible for them and what is possible for them given that they already have one child.

PORTER: Absolutely. This is not -- abortion is not about whether p -- is that -- it`s not -- it`s not in contrast to motherhood. It`s not about people never becoming mothers. It`s about deciding when to start a family.

So the -- as you mentioned, the majority of people who have an abortion are already mothers at that time and some of them have several children. Some of them will have an abortion and will go on to have children later.

And so, I think this idea that it`s this choice that somehow Republicans are choosing mothers and motherhood and Democrats are choosing to not be mothers to choosing abortion is just wrong-headed. This is part of family planning. This is part of reproductive health care in the same way that things like birth control are.

And when we see Republicans start to invade our choices about abortion, we`re going to see them come for birth control next.

O`DONNELL: President Biden has said that inflation is the number one priority for the Biden White House to try to get under control right now. As you`re out there in California talking to constituents during this re- election year for Congress, how does inflation compare to this newly important in the sense of the Supreme Court decision pending abortion issue? How do those two issues compare?

PORTER: Well, I don`t think they compare. I think they actually reinforce each other. So the fact that things like inflation can happen and it become, become more expensive to feed your kids and to fuel your car is exactly why people need to be able to be in charge of how many mouths they`re going to have to feed.


So I think the fact that we`re seeing this jump in expenses, that we`re seeing people having to pay more in the grocery store, pay more at the pump, pay more for housing is a reason that people are saying I need to be able to make my own decisions about when and if to start a family.

So I don`t think we`re going to see them -- I don`t think it`s about comparing them or contrasting them. I think they reinforce for people just how big of a responsibility it is to take care of our family.

LAWRENCE O`DONNELL, MSNBC HOST: All right. I want to take a look at a poll of Florida voters. This is a University of South Florida poll, about the causes of inflation. And they have at the top of the list, 87 percent say supply chain; 83 percent, COVID-19; 64 percent Biden administration; then comes war in Ukraine at 62 percent; Trump administration 49 percent.

I personally would move war in Ukraine way up there. How does that list look to you?

PORTER: I think it is missing a really important contributor here which is price gouging. So look, the evidence here is not tricky to understand. I don`t need a white board for this one.

When you are selling a product, and one of your inputs -- say you are selling gasoline -- and your input, which is oil, goes up in price, you might have to charge more. But if you are just covering the cost of your higher input, you would not see your profits double, quadruple.

And that is what we are seeing. We are seeing it with oil. We are seeing it with food products. So we are seeing these companies. They are not just passing along the cost of the higher input. They are not just passing it along their supply chain difficulties. They are using the supply chain moment to increase their profits by raising their prices well beyond the higher costs that they are facing.

So it`s -- nobody is taking away, I think, from the war in Ukraine, from supply chain issues, from labor shortages -- these are all real factors. And the price of fuel, of course, affects the price of many other goods.

But there is simply -- you cannot look at Wall Street`s profits and not come to the conclusion that this is one of the most profitable moments that Wall Street has ever seen and they are profiting off what they view as really an opportunity to engage in price gouging. And we have to crack down on that as we also try to solve some of these underlying inflationary factors.

O`DONNELL: Representative Porter, can you please stay with us across a break? Because I want to ask you something about what you did in your subcommittee. This may sound like something Congress does all the time because there`s been recent reference to it with the January 6th committee.

But you actually sent a criminal referral to the Justice Department for recommending an investigation of a Trump cabinet member.

I would really like to get the details on that the other side of this commercial break. Please stay with us.



O`DONNELL: And we are back with Representative Katie Porter. I have a -- I can tell the story of your criminal referral to the Justice Department. But I would rather have you tell this story and how it came about.

And one of the things that really stuns me about it is it centers on, among others, a Trump cabinet member who I forgot existed. I forgot who was secretary of the interior after the first one had to leave. But please tell us why this criminal referral is about.

PORTER: So, what happened here is the deputy secretary of the interior, the secretary of the interior at the time was Ryan Zinke, who is currently running for Congress. But the deputy secretary, his name was Bernhardt. He took a secret meeting with a developer named Mike Ingram (ph), trying to develop a project in Arizona, in a very environmentally sensitive area.

This was a secret meeting. It was never disclosed on any of Secretary Bernhardt`s calendars. It wasn`t disclosed to our committee when we were investigating.

A couple weeks later, this Fish and Wildlife career employee, 30 years, just doing his job, gets a call and is told that a high-level politico wants him to reverse his decision that this development would harm the environment.

And on October six, three things happened all at the same time. First, the Army Corps of Engineers announced they were reopening this permit process. They were going to reevaluate their decision. They have previously denied the permit.

Second, Mike Ingram and his 12 buddies of his donated nearly a quarter of a million dollars to the Trump victory fund and to the Republican National Committee.

And three, this Fish and Wildlife -- this whistleblower, this Fish and Wildlife person -- got a phone call telling him that he needed to reverse his decision. He got the phone call directly from the Department of Interior in Washington.

So, the facts here are really shocking. This is a quid pro quo. That`s what it appears to be. In return for making nearly a quarter of a million dollars of donations to the Trump victory fund and to the Republican National Committee, this developer was basically able to buy his way around environmental protection law.


PORTER: So the facts of this case are shocking and they are very, very serious. Quid pro quo is the most spurious (ph) form of corruption that there is. And officials need to know that just because they`re out of office, just because they tried to hide their tracks, doesn`t mean Congress isn`t going to do its job and conduct that oversight. And when we find crimes, we are not afraid to make the referral to the Department of Justice.

O`DONNELL: And you found all this in your subcommittee investigation, which you have now basically forwarded on to the Justice Department to see if they find criminal conduct.

PORTER: Yes. The chair of the Natural Resources Committee Raul Grijalva was working on this investigation. I took it -- you know, I took it over on the oversight subcommittee. We did it together. And I am really, really proud of how careful and thoughtful.

What we really tried to do here was get the facts. And then we`re making the criminal referral so that the Department of Justice can conduct the depositions and go through the formal legal process to reach their determination of whether or not criminal charges should be filed.

But given the evidence before us, we have a responsibility as congress members to see that the law is being followed. And so it does not appear that happened here and that`s why we need this unusual step.

This is the first time that the House Natural Resources Committee has ever made a criminal referral. And I think that speaks to just how egregious the conduct is here and just how important it is that we in congress are establishing the rule of law. And the expectation that administration officials are going to follow it.

O`DONNELL: Representative Katie Porter, thank you as always for joining us again tonight. We always appreciate it.

Thank you.

And coming up, newly-released audio tape shows that Lindsey Graham -- shows what Lindsey Graham really thinks about Donald Trump when Donald Trump cannot hear him.

And a newly-released email from Trump attorney John Eastman puts the criminal conspiracy to overturn the election in writing. Neal Katyal joins us next.



O`DONNELL: "New York Times" reporters Alex Burns and Jonathan Martin have released new audio recording of Senator Lindsey Graham criticizing Donald Trump and defending Congresswoman Liz Cheney after the January 6th attack on the capitol.


SENATOR LINDSEY GRAHAM (R-SC): He plays the TV game and he went too far here. That rally didn`t help, talking about primarying in Liz. He created a sense of revenge.


O`DONNELL: Lindsey Graham`s sense of revenge was on full display in the Supreme Court confirmation hearing for Justice Ketanji Brown Jackson when Lindsey Graham said very plainly that he thought that the hearing should be revenge for the way that Brett Kavanaugh was questioned by the committee, after Brett Kavanaugh was publicly accused of sexual assault, and then found himself defending himself in his hearing by expressing his love for beer, among other things.

NBC News has confirmed that fake Trump electors in Georgia are cooperating with Fulton County district attorney Fani Willis` grand jury investigation of possible violations of election law by Donald Trump and others in Georgia. Trump election attorney John Eastman put the criminal conspiracy in writing according to emails obtained by Politico and emails from John Eastman to state legislators in Pennsylvania, urging them to change the vote count in favor of Donald Trump, saying, "Having done that math, you`d be left with a significant Trump lead that would bolster the argument for the legislature adopting a slate of Trump electors perfectly within your authority to do anyway but now bolstered by the untainted popular vote. That would help provide some cover."

Joining us now Neal Katyal who served as acting U.S. solicitor general at the Department of Justice. He`s an MSNBC legal contributor.

And Neal, if I end my email to you with "this will help provide some cover", do you immediately call the FBI -- I mean who ends emails like that when they`re talking about anything other than covering up a crime?

NEAL KATYAL, MSNBC LEGAL CONTRIBUTOR: Exactly, Lawrence. I mean at last -- at long last, we have emails finally we`re talking about, finally. And all of a sudden, Republicans are acting like words don`t count unless they were, I don`t know, notarized and you know, sent by carrier pigeon or something like that.

So, what Eastman is doing in these emails as a Trump lawyer is he is under the cover of math. He`s trying to throw out the votes after he knew Trump lost. So his basic thing in the email is, well, 4 percent of absentee ballots are generally thrown out. Here only 0.4 percent were thrown out. So, you should say throw out the extra 3.6 percent. And that will hand Trump a victory. Give me a break.

I mean there are a couple of problems with that. One is, I don`t know how many of the 4 percent were actually just votes cast by like Mark Meadows and, you know, Trump people anyway.

And second, there is no electoral scheme anywhere, you know, at least in the United States, in which you do that kind of math. Just like, of course not. You go ballot by ballot. You look at whether or not there is election fraud with respect to any individual ballot. You do not do things like this.


KATYAL: And as you say, Lawrence, the tell here, is he says that will give us cover. Cover. This is a presidential election we are talking about, the most significant thing we do.

O`DONNELL: SO does that email leave any doubt that John Eastman knows what he is advocating is illegal?

KATYAL: It sure looks that way.

I mean, you know, you can try to explain it, you know. I`ve known John Eastman since we clerked together on the Supreme Court. He clerked for Justice Thomas, I clerked for Justice Breyer. I I think -- I thought he was -- I think many people thought he was a bit kooky, but people didn`t really think he was coupy (ph) but that evidently is what he has become.

O`DONNELL: When you look at this issue of fake electors in Georgia, district attorney has now the cooperation of the fake electors in Georgia. You see this interstate conspiracy -- John Eastman is a part of -- this is all interstate communication, saying you know, here is how to give us -- here`s how to send to Washington a completely fake set of electors. And it is for more than one state.

KATYAL: Absolutely.

O`DONNELL: It seems like Fani Willis has almost the entirety in Georgia, they have an entire version of this conspiracy including the Donald Trump`s phone calls to the secretary of state.

KATYAL: That is right, Lawrence. There`s two separate issues. One is the local investigation there with the local folks, including fake electors that, you know, were appointed. And that were potentially appointed by Republicans there. And that looks, potentially criminal.

And then the question you are raising is, how high does it go? Did any of these fake electors get contacted by Trump or Eastman? Or people close to him?

And the news today is that these fake electors are cooperating with the investigation in Atlanta. It`s not any surprise they are, I mean after all they did not sign up to participate in the crime. You know, all they wanted to do, I suppose was get together and fly to Washington D.C. and override the results of the securely run election.

So, how are they supposed to know that attempting a coup would create this kind of fuss?

O`DONNELL: I mean how is it different from impersonating an FBI agent?

KATYAL: It is not. It is the same kind of basic problem, if they knew it. You know, obviously, they may have defenses on criminal intent and so on. But right now it looks bad for them and it looks bad for this overall what looks like an orchestrated conspiracy.

And you know, Lawrence, Judge Carter, a respected federal judge in California has already looked at the evidence and said it is more likely than not that not only John Eastman committed crimes but Donald Trump committed federal felonies.

O`DONNELL: What is Merrick Garland`s role here?

KATYAL: Well, if there is a federal indictment, it has to be brought by the attorney general. And we don`t know exactly what the attorney general is doing. There is a school of thought that says that`s a good thing. They thought Merrick Garland is by the book, he is not leaking, and so on.

The other school of thought is he is such an institutionalist that maybe he is too afraid to go after Trump. You know, my hope is that, because he is such an institutionalist, because he cares so much about this country, the Department of Justice, the rule of law, he will look at all of this, he`ll look at what Judge Carter said, he`ll look at what the January 6 committee comes up with next month in the hearings and conclude as I suspect the evidence will be overwhelming that Donald Trump committed federal felonies.

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

KATYAL: Thank you, Lawrence.

O`DONNELL: And tonight`s LAST WORD is next.



O`DONNELL: Time for tonight`s LAST WORD.


UNIDENTIFIED MALE: Let me ask you this. Have you made any decision in your own mind whether you feel Roe versus Wade was properly decided on without saying what that decision is?

JUSTICE CLARENCE THOMAS, SUPREME COURT OF THE UNITED STATES: I have not made, senator, a decision one way or the other, with respect to that important decision.

JUSTICE SAMUEL ALITO, SUPREME COURT OF THE UNITED STATES: Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973. So, it has been on the books for a long time.

JUSTICE NEIL GORSUCH, SUPREME COURT OF THE UNITED STATES: I would tell you that Roe versus Wade decided in 1973, is a precedent of the United States Supreme Court. It is a precedent of the United States Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases.

JUSTICE BRETT KAVANAUGH, SUPREME COURT OF THE UNITED STATES: Senator, I said that it is settled as a precedent of the Supreme Court entitled to respect under principles of stare decisis.

JUSTICE AMY CONEY BARRETT, SUPREME COURT OF THE UNITED STATES: Roe v. Wade clearly held that the constitution protected a woman`s right to terminate a pregnancy. Casey upheld that central holding and spelled out in greater detail the test that the court uses to consider the legality of abortion regulations.



O`DONNELL: Tonight`s LAST WORD is "precedent".