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Transcript: The Last Word with Lawrence O'Donnell, 9/19/22

Guests: Bradley Moss; Andrew Weissmann; Tom Nichols

Summary

DOJ appeals to 11th Circuit to continue criminal probe as Trump refuses to say if documents were declassified citing possible indictment. Donald Trump`s threat to democracy increases as he now fully embraces the QAnon cult. But even more effective and more enduring threats to democracy were embedded in the constitution by the founders, according to a survey of the threats to democracy in the "New York Times" this weekend. Another institutional threat to democracy identified in the "New York Times" survey of threats to democracy this weekend is the United States Supreme Court.

Transcript

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

And welcome to the most fun thing you can do. Hosting one of the shows and that is announcing to the nation the birth on the staff of the show. It is --

ALEX WAGNER, MSNBC HOST, "ALEX WAGNER TONIGHT": It is the thing that matters, right?

O`DONNELL: It`s what matters.

WAGNER: It is the thing that matters and we`re so happy for her. Also, two boys, good luck sister. I have them myself.

O`DONNELL: Thank you, Alex.

WAGNER: Have a great show, Lawrence.

O`DONNELL: Thank you.

Well, we have breaking news upon breaking news tonight in the case of Donald J. Trump versus the United States of America. "The New York Times" is reporting tonight that former White House counsel warned Donald Trump last year when he was no longer president that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office. The lawyer Eric Herschmann sought to impress upon Mr. Trump the seriousness of the issue potential for investigations and legal exposure if he did not return the documents, particularly any classified material.

In January, not long after the discussion with Mr. Herschmann, Mr. Trump turned over to the National Archives 15 boxes of material he had taken with him from the White House. Those boxes turned out to contain classified documents the Justice Department has said.

And so, now, we know the name of one witness, possibly the most important witness federal prosecutors will call to testify in their grand jury investigation of Donald Trump`s possession of those documents, Eric Herschmann. Eric Herschmann will obviously comply with a grand jury subpoena to testify in that case and tell the grand jury whatever he told Donald Trump about those documents.

Here is Eric Herschmann fulfilling his duty as a witness for the January 6th committee.

(BEGIN VIDEO CLIP)

ERIC HERSCHMANN, FORMER TRUMP ATTORNEY: The day after Eastman, I don`t remember why he called me he started to ask me about something dealing with Georgia. I said to him, are you out of your f`ing mind, right? I said I -- I said I only want to hear two words coming out of your mouth for now on, orderly transition. I said, good, John, now I`m going to give you the best free legal advice you`re ever getting in your life, get a great f`ing criminal defense lawyer, you`re going to need it.

(END VIDEO CLIP)

O`DONNELL: And Donald Trump needs that great criminal defense lawyer more than error ever if Eric Herschmann tells federal prosecutors the same thing that the New York Times is reporting at this hour tonight, then the chances of Donald Trump being indicted have just skyrocketed.

And that is not the only breaking news in this case tonight, Donald Trump`s lawyers said in writing tonight just an hour ago that they are refusing to answer the question of whether Donald Trump declassified documents seized by the FBI at his Florida home because they are saving their answer to that question as, quote, a defense to the merits of any subsequent indictment. So Donald Trump`s lawyers are not saying whether Donald Trump declassified documents that were found at his home before he left the presidency.

They`re not saying that. They`re not saying anything about the classification of those documents because they said in writing tonight they are saving the answer to that as part of his criminal defense when and if he is indicted.

In a filing tonight, in the appropriately titled case of Donald J. Trump versus United States of America, Donald Trump`s lawyers refused, refused to answer that question which was asked of them by the special master. They refused to answer whether Donald Trump declassified while he was president any of the documents seized by the FBI at his Florida home a year and a half after he left the presidency. The special master in the case, Judge Raymond Dearie, who was proposed as a special master by Donald Trump`s own lawyers gave a draft plan of how he proposes to do his work as special master to Donald Trump`s lawyers and the Justice Department prosecutors in the case.

[22:05:02]

Judge Dearie also invited each side to make suggestions of what should be on the agenda in their first meeting tomorrow at 2:00 p.m. with the special master in Brooklyn. This afternoon, the Justice Department sent Judge Dearie a three-page filing suggesting that they discussed tomorrow the precise mechanics of the document flow in the case and they made only a one-line reference to Judge Dearie`s draft plan that says, in tomorrow`s plan, the parties should also -- in tomorrow`s discussion, the parties should also address the draft plan provided by special master to the parties.

The Justice Department lawyers did not say anything about the contents of the special masters` draft plan that draft plan has not been made public. But tonight, the Trump lawyers in their submission to the special master revealed possibly the most important points they intend to make to the special master tomorrow at 2:00 p.m., and in the process, they revealed what the special master has already asked of the Trump lawyers.

The Trump lawyer`s filing says: Similarly, the draft plan requires that the plaintiff Trump disclose specific information regarding declassification to the court and to the government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the special master process will have forced the plaintiff Trump to fully and specifically disclose a defense to the merits of any subsequent indictment.

Tomorrow is going to be a very big day in the case of Donald J. Trump versus United States of America because not only is the special master meeting with lawyers for both sides at 2:00 p.m., but the federal appeals court has given Donald Trump`s lawyers until 12:00 noon tomorrow to respond in writing to the Justice Department`s appeal filed at 9:00 p.m. Friday night, asking the appeals court to immediately pause the order by Judge Aileen Mercedes Cannon that prevents the FBI from continuing the criminal investigation of those classified documents seized at Donald Trump`s home.

The Justice Department is also asking the appeals court to not allow the classified documents to be shared with the special master in the case and with Donald Trump`s lawyers.

And joining our breaking news discussion right now are: Andrew Weissmann, former FBI general counsel and former chief of the criminal division in the Eastern District of New York, and professor of practice at NYU law school. He is an MSNBC legal analyst.

Also with us, Bradley Moss, a national security attorney.

Gentlemen, you were convened tonight, we knew we would be discussing the appeal, but now we have this breaking news from "The New York Times" about Eric Herschmann who now is clearly an important witness in this case saying he told Donald Trump last year about the legal imperative to return these documents and the legal jeopardy Donald Trump would face if he did not return these documents.

Andrew Weissmann, your reaction first to this news of Eric Herschmann and his standing now as a witness in this case.

ANDREW WEISSMANN, MSNBC LEGAL ANALYST: Lawrence, that is definitely the right thing to start with of the two stories that we`re discussing tonight that is the one to keep your eye on because in order to bring a criminal case the key issue in any upcoming prosecution is how is the government going to probe knowledge and intent of Donald Trump? And you could not ask for anything better than a lawyer meeting with the person you`re thinking of indicting and telling the person this is what the law is, this is why you have to do it.

So having been a defense lawyer, you know, this is like the world`s worst news is a witness who is a credible, upstanding lawyer with no baggage in terms of criminal exposure, saying that he had a conversation with your client advising exactly what the rules require. So -- of, you know, the document issue, we`re going to get through and there`s it`s going to be an interesting sort of up and down. But that`s not where the game is, where there`s real sort of advancement of the case is in the breaking story tonight in "The New York Times" about Eric Herschmann.

O`DONNELL: And Eric Herschmann was one of the defense counsels for Donald Trump in his first impeachment trial in the Senate.

And, Bradley Moss, when you hear what Eric Herschmann is saying tonight through "The New York Times", the reporting indicates that Eric Herschmann didn`t know what the documents were necessarily and did not know what the classified documents were or if there were classified documents there.

But he did specify to Donald Trump if there are classified documents. So it seems to indicate, that even according to Judge Cannon`s order about what the FBI can and cannot do, even according to her order, the FBI could question Eric Herschmann tomorrow about what he told Donald Trump.

BRADLEY MOSS, NATIONAL SECURITY ATTORNEY: Yes, absolutely. Judge Cannon`s sort of revised ruling, the one she issued after the government tried to get her to reverse or reconsider her original ruling, did give them that wiggle room. As far as I`m concerned, they have the ability to go speak with Eric Herschmann tonight, tomorrow, whenever they want to get some more details, as long as they don`t go into the de -- the substance of those under classified records that were seized.

But to follow up a bit on Andrew`s point, this is painting the picture the government almost certainly will utilize if it brings an indictment because it`s not just Eric Herschmann. Pat Cipollone, Patrick Philbin, all these different lawyers were telling Donald Trump towards the end of his presidency, after we left the presidency was being contacted by NARA, these are not your records. Their presidential records, they go back to the archives. You need to turn everything over.

It frames it out in the context of intent and the willful retention of these documents and his refusal, his obstruction of the efforts by the government to recover them that transpired in June and then ultimately led to the search warrant in August. If there`s an indictment, this will be part and parcel of the narrative outlined in that indictment.

O`DONNELL: So, Andrew Weissmann, let`s go back to this conversation that Eric Herschmann has with Donald Trump, which the New York Times doesn`t have a fixed date for it but it was before the first group of documents were returned to the National Archives. So you see after that conversation with Eric Herschmann a Trump response in effect by giving back these documents to the National Archives, which turned out to include 180,000 classified documents.

That seems to indicate that Donald Trump took that advice very seriously. It seems to indicate that Donald Trump acted on that advice about his obligation to the National Archives. But it also seems that with that same knowledge, he willfully withheld other documents, including in his desk, in his personal desk, in his personal office there in that residence, in the desk drawer, he had classified documents.

What does it add to the possible prosecution here that Donald Trump in effect agreed in that initial handing back of documents that yes, I do owe these documents to the government? Would he be somehow legally better off if he never gave back anything and simply insisted his understanding was he didn`t have to give back anything?

WEISSMANN: Yes, exactly. This is the world`s worst set of facts for him. The fact that he returned some but not all makes it clear he understood exactly what he was being told by Eric Herschmann, and let`s assume that he is the only lawyer who was saying this, although I agree with brad that he will not be the only lawyer. But even -- even if he were the only one, it shows that he knew at that time the import and then deliberately decided to keep other documents and he can`t say, oh, I had no idea where they were because there are too many, they`re too important and the location is in his office as you said, and it actually in his desk.

So, this is the world`s worst set of facts for him and if you`re a prosecutor, you`re -- you know, we should just assume by the way that the reporting in "The New York Times", it may not be news to the government. They have spoken I assume to Eric Herschmann. We know the January 6 committee as you`ve pointed out has spoken to him.

And so, what we are learning is something that the government might know very, very well already, the whole chapter and verse of the lawyers who spoke to Donald Trump, advising him of what the law is throughout this whole process. So this really could be an incredibly strong case and we`re just learning of it from the outside, but the government is quite aware of it.

O`DONNELL: So, as -- what we know now about witnesses, Eric Herschmann is by far the most important one, but certainly not the only one. "The Washington Post" was already reporting about Pat Cipollone, and his deputy White House counsel telling the Archives that the stuff that`s done there in Florida is just newspaper clippings, and there`s nothing important in the boxes.

[22:15:17]

And they say that they were told that by Mark Meadows. When "The Washington Post" published that, Mark Meadows spokesperson immediately told "The Washington Post" that he had no idea what was in the boxes in Florida. Then, "The Washington Post" gets another source to say Mark Meadows supervised very closely everything that went into those boxes.

And so, Bradley Moss, you see a web of witnesses right there, all kind of pointing at each other. I mean, Mark Meadows saying I don`t know anything about what`s in those boxes, but then you have two White House counsel saying, no, Mark Meadows told us that it was just newspaper clippings.

So this seems like the prosecutors have a few witnesses here to talk about what got into those boxes and how it got in there.

MOSS: Yeah, and what you have with Mark Meadows is rather similar to the problem currently facing Christina Bobb and Evan Corcoran, the two Trump lawyers who signed off on that false representation to the government in June.

Mark Meadows told the lawyers, who then told the archives, yeah, there`s nothing else there. It`s just newspaper clippings.

Of course, what did Mark Meadows actually know? Did he look at it as the sources are saying, or was he being advised by Donald Trump? He will be a material fact witness at a minimum as to how he knew what he knew, what basis he had for what he was telling the lawyers. Did he knowingly mislead the lawyers or was he misled by someone else namely Donald Trump? That is something that if you`re the Justice Department, that`s basic investigatory technique. You`re, you know, running that down to figure out who told who what.

O`DONNELL: So let`s consider the burden on the Attorney General Merrick Garland tonight on this issue, of the question of possibly prosecuting a former president of the United States when you have a witness now publicly revealed to have told Donald Trump if you do X, that is a crime, and then Donald Trump does X.

And I say all that because on Saturday, Attorney General Merrick Garland speaking to newly naturalized citizens in this country spoke specifically about the rule of law in this country and when you listen to these words tonight, with the fact base that we now have, that we`ve just developed in the last minutes of Eric Herschmann telling Donald Trump, holding on to these documents is a crime and Donald Trump holds on to the documents, listen to the words the attorney general used on Saturday, that seemed to apply very directly to his decision about indicting a former president of the United States.

(BEGIN VIDEO CLIP)

MERRICK GARLAND, ATTORNEY GENERAL: The protection of law, the rule of law is the foundation of our system of government. The rule of law means that the same laws apply to all of us the rule of law means that the law treats each of us alike. There is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; one rule for the rich, another for the poor. The rule of law is not assured. It is fragile. It demands constant effort and vigilance. The responsibility to ensure the rule of law is and has been the duty of every generation in our country`s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

(END VIDEO CLIP)

O`DONNELL: Andrew Weissmann, that`s an attorney general who knows we`re hanging on his every word about exactly that kind of concept as he considers the indictment of a former president. How do you interpret what you heard the attorney general say?

WEISSMANN: Well, first, I should say, if anyone has not heard the full speech, I highly recommend it. It is -- it is really moving. It was very hard to -- he had trouble keeping his composure, so did I. it was an incredibly moving speech.

I think that what it means in terms of this case is that it`s -- this is not going to be an issue of is there enough proof to charge the former president? That -- that is -- this is not going to be a question. This is not a complicated case. The proof I think at the end of the day will be overwhelming.

The main issue for Judge Garland is going to be precedent. He will be looking at the Department of Justice precedent to make sure that he is treating Donald Trump no better and no worse than other people who have been in similar situations.

[22:20:10]

And the reason that I think that there is really going to have to be an indictment here is that if you look at the precedent, it is very hard to see how you could justify what the department has done for people who are less culpable, who have far less lofty positions who have not flouted the law as much as the former president, and think that that Merrick Garland is not going to reach the judgment that the president has to be charged.

O`DONNELL: Well, the word indictment has appeared over my shoulder during this segment, because as a -- as I began tonight, Donald Trump`s lawyers in the case about the search warrant raised the issue of indictment themselves in their own writing tonight, in their own filing tonight. And I want to get to that, we`re going to have to squeeze in a commercial break here because we have the progress in the appeal to consider, which is all which I think we could already characterize as high speed progress, and the special master meeting tomorrow.

Andrew Weissmann, Bradley Moss, please stay with us across this commercial break so we can get to that. We`ll be right back.

(COMMERCIAL BREAK)

[22:25:56]

(BEGIN VIDEO CLIP)

SCOTT PELLEY, 60 MINUTES: When you saw the photograph of the top secret documents laid out on the floor at Mar-a-Lago, what did you think to yourself looking at that image?

JOE BIDEN, PRESIDENT OF THE UNITED STATES: How could that possibly happen? How could anyone be that irresponsible? And I thought -- what data was in there that may compromise sources and methods? And by that I mean, names of people who helped, et cetera. And it`s just totally irresponsible.

PELLEY: And you don`t know what was in those documents?

BIDEN: I had not asked for the specifics of those documents because I don`t want to get myself in the middle of whether or not the Justice Department should move or not move on certain actions they can take. I agree, I don`t tell them what to do and not in fact engage in telling them how to prosecute or not.

(END VIDEO CLIP)

O`DONNELL: And still with us is Andrew Weissmann and Bradley Moss.

And, Andrew, I want to go to the Trump lawyers filing in the case tonight where they refused to respond to what was apparently a question from the special master about whether Donald Trump had declassified any of these documents before he left the presidency. They refused to answer any question about declassification, saying that that might become, quote, a defense to the merits of any subsequent indictment.

So the Trump lawyers are already contemplating holding that information until Donald Trump is a criminal defendant in court.

WEISSMANN: Well, I think it`s wise of them to be thinking down the road about what`s going to happen when he`s indicted. I would like to give them some advice though, which is if they`re holding as a defense that he declassified the documents, leaving aside that it`s going to be I think far-fetched that that in fact happened, that is not a legal defense.

The crimes that were listed in the search warrant do not require that the documents be classified or declassified. So that is not an actual legal defense.

And to this day, six weeks to the date from learning about that search, we still have no answer whatsoever from Donald Trump as to what he was doing with these documents, why he took them, why he kept them, why he lied about it, and any legal or factual defense.

And with respect to not answering the question from the special master, I mean, there is something incredibly ironic given that this is the special master that Donald Trump chose. But this is the most logical question that you could imagine Judge Dearie asking, which is, hey, you want me to review documents that are marked classified, are you saying they`re declassified and thus should be returned to you? If you`re not saying they`re declassified, what relief are you asking for? So that is a totally logical question, it is the question that, of course, Judge Cannon should have been asking, but Judge Dearie is asking it.

And if they don`t answer it, it`s pretty clear what he`s going to do. He`s going to say, well, look if you`re not making the argument that they`re declassified, well, they`re classified on their face. The government`s telling me they`re classified.

It walks, talks, looks like a duck. There`s an affidavit saying there`s a duck and you`re not saying that it`s not a duck. So guess what? They`re classified.

O`DONNELL: And, Bradley Moss -- well, I`m struck by the fact that the Trump lawyers put this in this public filing because they didn`t have to. They could have just waited until tomorrow at 2:00 p.m. and said all this to the judge and we wouldn`t know that in writing, they are contemplating their client`s indictment.

MOSS: Yeah. Well, you know, you get what you pay for and you get what you can whenever you competent and qualified lawyer who you`d expect to have in this situation wants nothing to do with you. But you know, to follow up on what Andrew was saying, part of the reason Judge Dearie`s doing this is because I`m sure he saw what he was given as orders from Judge Cannon.

[22:29:51]

He looked at the filing said, "Enough is enough, I`m not dancing around this." It`s really simple. Either you`ve the evidence or you don`t. If you don`t have the affidavits to show that this stuff was declassified then you`re going to show that there is executive privilege and there`s (INAUDIBLE) or you`re going to say (INAUDIBLE) without declassifying it which is ridiculous. So you know, put up or shut up. (INAUDIBLE).

O`DONNELL: And Andrew quickly before we go, the Justice Department filed their appeal Friday night about 9 p.m.

In less than 24 hours, the Appeals Court ordered the Trump lawyers to have their response ready by Tuesday at 12 noon. This seems like the appeals court is taking the case seriously and moving quickly.

WEISSMANN: Absolutely. It doesn`t tell you which way they`re going to go. It obviously is not a good look that you have the Trump letter to Judge Dearie saying we`re not even going to tell you whether we declassified it. That has been a key point that the government has been making over and over again.

So that certainly doesn`t look like good faith. So I`m sure this is something that the government is looking at very carefully and we will see what happens. I`m pretty sure that the 11th Circuit, whichever they rule I think we`re going to hear very quickly.

O`DONNELL: Andrew Weissmann and Bradley Moss, thank you once again for guiding us through another breaking news night in the case of Donald J. Trump versus the United States of America. We really appreciate it. Thank you very much.

MOSS: You`re welcome.

O`DONNELL: And coming up, Donald Trump`s threat to democracy increases as he now fully embraces the QAnon cult. But even more effective and more enduring threats to democracy were embedded in the constitution by the founders, according to a survey of the threats to democracy in the "New York Times" this weekend. Charles Blow and Tom Nichols will join us next.

[22:32:13]

(COMMERCIAL BREAK)

O`DONNELL: This weekend, the Senate`s most senior senator Patrick Leahy of Vermont told Ali Velshi if the Senate doesn`t repair itself we are in deep trouble in this country. But of course, because of the anti-democratic formula of two senators per state, the senate can never repair itself.

Also this weekend the "New York Times" ran a massive article by David Leonhardt about the twin threats to American democracy. One of the threats is of course, the unhinged Republican denial of the legitimate results of legitimate elections personified this weekend in a gathering of the most extremely unhinged in that movement led by Donald Trump in Ohio.

During a portion of his speech while he was reading awkwardly from a teleprompter, the theme music of the QAnon cult was playing. And the entirely delusional members of QAnon in the audience raised their hands in the QAnon sign of worship in Donald Trump.

The "New York Times" reports that Qanon believes quote, "Trump will retake power after vanquishing his enemies, having them arrested and potentially executed on live TV".

Most of the "New York Times" article this weekend about the twin threats to democracy did not concentrate on denying the legitimate results of legitimate elections, it concentrated on the constitutional design of the federal government being an actual threat to democracy when it is working exactly as designed by the founders.

Like fore example, giving the presidency to the two most recent Republican presidents after they came in second in the vote but won the electoral college. Many of the democracies established in the 19th and 20th centuries borrowed elements from our constitution but none of them established an electoral college because the world unanimously agrees that the electoral college capacity to deny democracy makes it a foolish and dangerous idea.

The other major threat to democracy identified by the "New York Times" is the formula of two senators per state, which has delivered us the United States Senate that defies the policy views of a majority of Americans.

"The Times" notes "50 Democratic senators effectively represent 186 million Americans. While the 50 Republican senators effectively represent It was 145 million. To win Senate control, Democrats need to win substantially more than half of the nationwide votes in the Senate elections.

Joining our discussion now Tom Nichols, a former professor of the United States Naval War College. He is a contributing writer at "The Atlantic" where he`s the author of the "Peacefield" (ph) news letter. Also with us Charles Blow, columnist for the "New York Times" and an MSNBC political analyst.

And Charles, I would like to begin with you and the threats to democracy discussion about what you saw in that Trump QAnon gathering and the threat to democracy represented there.

CHARLES BLOW, MSNBC POLITICAL ANALYST: The idea that, you know, it was half, you always say half when I say Republican Party.

[22:39:54]

BLOW: It`s not really half but half the electorate we could possibly say -- believe that Donald Trump won or that Biden was not legitimately elected. And now it`s drifting closer to accepting more of the QAnon conspiracy theories, is a danger.

I mean we only have two political parties in America. You know, people often, you know, think about or wonder what it would be like to have more political parties. Political parties bubble up every now and then but they don`t get enough traction and that`s also because of the way this has been structured.

You know, you have to get a certain percentage of the vote to be recognized enough to be put on the debate stage. You have to get a certain percentage of support in order to get federal funding.

So the system itself resists having more political parts. We have two and if one of them is behaving in this way believing that things that Republicans now say that they believe you can`t describe that as anything other than a threat and a very serious one.

O`DONNELL: And Tom, when you saw what was going on that Trump rally, what the Qanon people are -- your tweet was, "These people are worshipping a real estate developer from Queens who can barely hold a thought in his head. This is beyond un-American. It`s psychotic."

And it is the electoral college that allows them to capture the presidency. Donald Trump, unlike any previous presidential politician has never, ever made an attempt to reach a voter who doesn`t already agree with him because he has no expectation of ever winning the most vote. They just have that route through the electoral college that they believe they can pull off.

TOM NICHOLS, RETIRED NAVAL WAR COLLEGE PROFESSOR: Yes. I mean when I watched the rally, one of the things that occurred to me is that no matter how much we talk about the constitution, and I agree that despite being something of a traditionalist about the constitution, our institutions have to have some kind of reform, have to have some kind of change because of the structural changes in the country.

But if we are a country that is collectively becoming subject to a kind of mass psychosis our institutions can`t save us. Structural reforms can`t safe us. Changing the law can`t save us.

Starting all over with a new constitution can`t save us if we have millions of people whom we need to be voting and participating citizens in the democracy if they are completely delusional and have lost touch with reality.

You know, this goes all the way back to James Madison warning that no checks and balances, no system of government can save us if we become essentially an unvirtuous people.

And so that is the thing that really struck me about the rally is that you can`t design a system of government built around people who are staring at television stations or going down Internet rabbit holes. There`s no hope of creating a constitutional mechanism to deal with that.

O`DONNELL: Charles, the majority of Americans are just fine. The majority of Americans think all of that stuff is crazy. The trouble is the founders put elements into the structures of the federal government that allows this crazy minority to govern the majority.

BLOW: Exactly, the country is broken from the very beginning in its founding documents. And what the Republicans are doing at this point is trying to exploit the brokenness that already exists and to break it even more if need be.

We have a multiple mass migrations happening in this country. One of them is urbanization. Young people mostly young college educated white people reversing the trends that their mothers and fathers and grandparents made in moving out of the suburbs and then moving back into cities.

They`re also moving to bigger, bluer states by and large. And what that means is that every person that shows up in Brooklyn actually weakens the vote of everyone else in Brooklyn and in New York, and in New York state because they will only ever have two senators. They will only -- the formula for the electoral college is not one for one, right.

So it`s huge. And so the fact that we are continuing to urbanized actually hurts the people who are more likely to be going into those directions which are more likely young liberals.

And so it is broken. What we have on the horizon is a situation where we are very likely to see even more people winning the presidency who do not win the popular vote.

[22:44:48]

O`DONNELL: And Tom, we remember when the geography of this country did not determine politics as clearly as it does now. The most liberal Democrat of his time George McGovern from South Dakota, inconceivable now that George McGovern could be elected to anything from South Dakota. He got the Democratic presidential nomination as the senator from South Dakota.

The Dakotas together don`t have a population the size of Brooklyn and yet they have four senators. This does not seem like there is a solution looming to this.

NICHOLS: I don`t think so. As you were talking Lawrence, I realize that a state I used to live in, Vermont was within my lifetime a reliably Republican state which almost seem inconceivable now.

I don`t think there is a solution because the malady is within us. And because the nature of the constitution is that it is so hard to change. And by the way, the one thing I don`t thing should be lost in this conversations, we don`t ever want to lose the protections against majoritarian tyranny either. We don`t want to live in a country where 51 people -- 51 percent of the people decide that the First Amendment is a bad idea, that the First Amendment goes.

But I think that the problem is that we -- this whole system was never designed to deal with millions upon millions of people who have pretty much just kind of lost their mind.

And I don`t know what-- I wish I had an answer, I don`t know what to do about that.

O`DONNELL: None of us have the answer to them losing their minds.

Charles Blow, Tom Nichols -- thank you both very much for joining us. This discussion must and will continue. Thank you very much.

BLOW: Thank you.

O`DONNELL: And coming up, another institutional threat to democracy identified in the "New York Times" survey of threats to democracy this weekend is the United States Supreme Court. Slate`s Supreme Court reporter Dahlia Lithwick will join us next.

[22:46:44]

(COMMERCIAL BREAK)

O`DONNELL: In her new book, Dahlia Lithwick writes, "The Supreme Court is expanding gun rights, dismantling the power of agencies to protect the environment and opening the door to state efforts to criminalize abortion, miscarriage and contraception. The high court is also participating in efforts to stymie the vote.

But women are not without legal and constitutional resources to fight back. Female lawyers know this fight intimately. They have been doing this work for decades. This is their playbook. This is the task ahead.

Dahlia Lithwick joins us now. She is senior editor and legal correspondent for Slate and host of the podcast "Amicus". Her new book is "Lady Justice: Women, the Law and the Battle to save America". Dahlia, thank you very much for joining us tonight.

Did we ever dream that you`d be sitting down to talk about a book you`ve written after a weekend where the "New York Times" has declared the Supreme Court one of the threats to American democracy?

DAHLIA LITHWICK, MSNBC LEGAL ANALYST: Well, Lawrence, just to pull on the thread about the malapportioned Senate and the Electoral College. Let`s remember that five of the six conservatives on the Supreme Court were seated by presidents who lost the popular vote and then ratified by a malapportioned Senate. So your minority rule being pulled right over to the Supreme Court is also now by fiat deciding things in contravention of 70 percent, 80 percent of polling around reproductive rights, around gun rights.

So it pulls all the way through this was designed and this is how it is playing out and so we -- it`s not a minoritarian check anymore, it`s a minoritarian rule.

O`DONNELL: And I think when people see us discuss this now if they haven`t been paying attention to every word we`ve said about the Supreme court over the last 25 years they would think this is easy for us to say. It is incredibly disorienting to have to think about the Supreme Court this way as a partisan operation.

LITHWICK: Yes. I mean I`ve covered the court for 22 years. And it really wasn`t until this time last year, FBA (ph) the Vigilante Bill in Texas where I was able to look around and say this is not a court being a court. This is a court doing something wildly misaligned with its mission.

And you`re right, we have trusted the court to preserve dignity, equality. Maybe, you know, we overestimated it s ability to perform that role. But to see the court now in this kind of no holds bar. We want what we want and we want it now. That is really destabilizing.

O`DONNELL: Yes. I mean I`ve disagreed with court rulings but I always mostly trusted that they were arrived at honestly. That, you know, this justice who I disagree with was using an honest approach to it.

But that feeling is impossible now when as the Times pointed out this weekend, their work simply supplements what the Republican Party wants.

LITHWICK: Right, this is the whole fight we are having right now abut the legitimacy of the courts. John Roberts and Elena Kagan gave dueling statements last week about the legitimacy of the courts. John Roberts insists that the public sees the court as illegitimate. Nothing has changed. Elena Kagan I think in her own death-quiet way was very clear that the court is the court`s own legitimacy problem.

O`DONNELL: You know, Lady Justice is our nickname for Dahlia Lithwick here at the show. When we have an important Supreme Court case, we always say can get Lady Justice tonight to talk about it.

Why this book and why now?

[22:54:57]

LITHWICK: I think that this is kind of a love letter to the law and the rule of law and to the women who worked their way for all the years of the Trump administration, quietly toiling in the vineyards, winning their lawsuits, not getting enough attention in my view, and bolstering the rule of law through really, really challenging times.

And one of the things that I want us to think about especially in lieu of the last segment you just did, is that law really can and does save us. We cannot give up on the rule of law. We can say that the court is being lawless. We can say that Judge Aileen Cannon is being lawless. But the law is only thing we have.

What`s left if we don`t have the law is fighting on the streets. And I`m not prepared to go there. These women I think lit the way.

O`DONNELL: The book is "Lady Justice: The Women, The Law and The Battle to Save America" by our Lady Justice, Dahlia Lithwick.

Dahlia, great to have you here in the room for the first time in years. Really appreciate it. Thank you very much.

LITHWICK: Thanks.

O`DONNELL: We will be right back.

[22:55:58]

(COMMERCIAL BREAK)

O`DONNELL: If you have a daughter or a granddaughter or sister who is thinking about going to law school, the book to get her is Dahlia Lithwick`s "Lady Justice".

Dahlia Lithwick gets tonight`s LAST WORD.

"THE 11TH HOUR WITH STEPHANIE RUHLE starts now.