President Donald Trump is pushing to fill high court seat before November 3. He is expected to nominate Amy Coney Barrett, a conservative favorite. Trump attacks election, predicts it will be contested. The more FBI Director Chris Wray tells truths the White House doesn't like, the more likely it becomes that Trump will fire him. Florida lifts all coronavirus restaurant restrictions despite persistent cases.
MELISSA MURRAY, NEW YORK UNIVERSITY SCHOOL OF LAW PROFESSOR: -- where a bear supermajority of nine people can write these out of existence. And that's exactly what we're seeing here, the court being used as a way to impose and to install minority rule.
ALI VELSHI, MSNBC HOST: Thank you to both of you, Melissa Murray and Maria Echaveste. We appreciate you being with us tonight. I'll see you back here tomorrow morning at 8 a.m. Eastern. That is Tonight's Last Word. The 11th Hour with Brian Williams begins right now.
KATY TUR, MSNBC HOST: Good evening once again, I'm Katy Tur, in for Brian Williams, who will be back on Monday.
Day 1,345 of the Trump administration, 39 days until the presidential election, four days until the first presidential debate. Tomorrow, President Trump will announce his pick to replace Ruth Bader Ginsburg on the Supreme Court. Two sources tell NBC News that federal judge Amy Coney Barrett will be named as the nominee.
She's been on Trump's list of potential nominees since 2018, has spent three years on the federal bench and has taught at Notre Dame Law School for nearly two decades. Judge Barrett clerked for the late Justice Antonin Scalia, should she be confirmed? The High Court would have a solid conservative majority for years to come.
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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Fill that seat. Oh, we're going to fill it. Don't forget, we don't have to do it by the election. But we should be easy -- really able that would be a great victory, going into the election with that biggest of all victories. You know, they say the biggest thing you can do is the appointment of judges, but especially the appointment of Supreme Court justices. That's the single biggest thing, a president can do because it sets the tone of the country for 40 years, 50 years. So tomorrow, I think is going to be a big day, five o'clock tomorrow at the White House.
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TUR: The announcement will come just over a week after Ginsburg's death. Trump is pressing the Senate to act quickly in hopes of getting her on the court by November 3 and has been openly speculating that a dispute over the election results could end up before the High Court.
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TRUMP: I think this will end up in the Supreme Court. And I think it's very important that we have nine justices having a four-four situation is not a good situation.
We may end up in a dispute for a long time because that's the way they want it.
(END VIDEO CLIP)
TUR: Along with that Trump has escalated his baseless assault on mailing ballots leading to voter fraud, a claim that has no evidence that could set the stage for a contested election. Trump has also added fuel to the fire by refusing to commit to a peaceful transfer of power if he should lose the election to Joe Biden.
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UNIDENTIFIED MALE: Will you commit to making sure that there is a peaceful transferal of power after the election?
TRUMP: Well, we're going to have to see what happens, you know that. I've been complaining very strongly about the ballots and the ballots are disaster. Get rid of the ballots and you'll have a very trans -- we'll have a very peaceful. There won't be a transfer, frankly, there'll be a continuation.
We want to make sure the election is honest and I'm not sure that it can be. I don't know that it can be with this whole situation unsolicited ballots. There are unsolicited millions being sent to everybody.
Now I don't know, you know, with this ballot situation. It's -- you're not going to see it November 3. The Democrats are playing games, you see that you see they found ballots in a wastepaper basket. They found ballots dumped in a stream.
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TUR: Trump has now seized on a federal investigation into a handful of possibly discarded mail-in ballots in Pennsylvania to build the fictional narrative of widespread fraud. The New York Times reports, "A Justice Department official said on Friday that Attorney General William P. Barr personally briefed Mr. Trump this week on the case."
Trump's son, Eric, is now weighing in on his father's comments about the transfer of power, telling the Las Vegas review journal that "if tens of thousands of ballots are found in a dumpster,' or some similar case of fraud, his father would obviously contest the results. 'I think my father's just saying, listen, if he got blown out of the water, of course, he'd concede,' Eric Trump said. If he thought there was massive fraud, then he'd go and try and address that."
Meanwhile, the White House has gone on the attack against FBI Director Chris Wray for not toeing the line on ballots and voter fraud. Here is what Wray told the Senate Committee yesterday.
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CHRISTOPHER WRAY, FBI DIRECTOR: We have not seen historically, any kind of coordinated national voter fraud effort in a major election, whether it's by mail or otherwise.
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TUR: This morning, Donald Trump's Chief of Staff laced into Wray.
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MARK MEADOWS, DONALD TRUMP'S CHIEF OF STAFF: With all due respect to Director Wray, he has a hard time finding emails in his own FBI, let alone of figuring out whether there's any kind of voter fraud.
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TUR: Today, Joe Biden had a lot to say about Donald Trump's attacks on mail-in ballots and his refusal to commit to an orderly transition when he spoke with our NBC News colleague, Stephanie Ruhle.
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STEPHANIE RUHLE, MSNBC HOST: Twice now President Trump has refused to agree to a peaceful transfer of power if he loses. What are you going to do if you win and he just won't leave?
JOE BIDEN (D), PRESIDENTIAL NOMINEE: This is a typical Trump distraction is trying to make everybody wonder whether or not election will be legit and whether or not absentee ballots matter. The whole notion of him talking about this, Stephanie, is to take our eye off the ball, not to talk about what's happening to the people dying and COVID not talking about all the unemployment not talking about him and being unwilling to bring the Congress together get out of a good office, golf course not of the same trap and have a meeting in the White House.
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TUR: Stephanie Ruhle's full interview with former Vice President Joe Biden will air as part of the latitude national business conference. MSNBC will have full coverage tomorrow on weekends with Alex Witt at 12 p.m. Eastern.
Amid all of this The New York Times reports there is mounting concern among some senior Pentagon officials that Trump may try to use the military to put down any unrest that might erupt during the disputed election. Earlier on this network one retired general offered his thoughts on that possibility.
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GEN. BARRY MCCAFFREY, U.S. ARMY (RET.): There is 100 percent reliability that the armed forces will respect the constitution United States and more importantly, they're not going to be involved in a disputed election of Trump unilaterally tries to pull a coup at noon on the 20th. He's out. Nobody follows instruction anymore to include the armed forces.
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TUR: Now as all of this was unfolding, the nation was paying a final tribute to Ruth Bader Ginsburg. Today lawmakers held a formal ceremony for Ginsburg to honor her life and indelible legacy. She is the first woman and first Jewish person to lie in state at the U.S. Capitol.
Here for our leadoff discussion on a Friday night, two of the best from the New York Times, Peter Baker, Chief White House Correspondent, and Katie Benner, Justice Department Reporter for the Times. Also with us is Jonathan Lemire, White House Reporter for The Associated Press. Everybody, welcome.
Peter, I want to start with you. We have been asking for years now what line Republicans would draw when it comes to the President's rhetoric, when it comes to his norm breaking, when it comes to his actions while he is in the White House? He's actively trying to undercut the confidence in November's -- in the election in November. What are they going to do from your reporting, in your conversations, if he refuse -- refuses to concede, is it reasonable to expect them to stand in the way?
PETER BAKER, CHIEF WHITE HOUSE CORRESPONDENT, THE NEW YORK TIMES: Well, you heard a number of Republican leaders this week, including Liz Cheney of the House, including Mitch McConnell and the Senate basically say, look, there's going to be an orderly transfer of power. If there is an election defeat for President Trump, we will fulfill that oath and not to worry about it.
I think, on some level, they do want to push back on the Presidents, the same thing that happened when he said earlier this year that maybe we ought to delay the election. And you heard a number of Republicans say, no, wait a second, that's not even in the cards.
I think there's some of them who just say, look, he's just trying to stir the pot, they recognize that he likes to say things that get people stirred up that get a lot of us talking on television, and they don't take them very seriously that. But they do take the notion of undercutting the election seriously. And I think that what you see, not just this week, but through months and months of the President accusing, you know, making unfounded assertions of, you know, a rigged election, you see a president undermining the system that he himself, presides over. It to undermine the very faith in democracy that we, you know, rely on in order to conduct our elections.
People basically have to believe that elections are fair and going to be conducted in an efficient way in order to have faith in the system. And he's telling them they can't believe that. They shouldn't believe that, in fact, the system is corrupt, and it's rigged against him without any evidence.
TUR: How far are they willing to go if the president starts litigating over what he calls fraud when there's very little evidence of any sort of fraud, no evidence of any sort of fraud that would ever change the results of an election?
BAKER: Well, I think they're going to count on the courts to basically make that decision. I don't imagine that the Senate is going to somehow litigate it in some way themselves or the house. But look, if it doesn't get resolved by mid-December, when the Safe Harbor deadline that's in statutory law, calls for these disputes to be resolved in a state, the issue could eventually get to the House of Representatives.
Remember, if there's not an Electoral College majority for a president then it falls the House of Representatives. Now you may think OK, that's good for the Democrats because they have a majority in the House. In fact, it's not the case because each state gets one vote as a delegation. Each of the 50 states gets one vote and right now the Republicans even though they're a minority in the overall number, have a majority of the delegation, so that would be very fascinating and obviously unprecedent in modern times situation that would throw this election already into even further, you know, tumbles and confusion.
TUR: Katie, on the alignment between Donald Trump and Attorney General William Barr, him letting the President know that there was an investigation into what is actually just nine ballots in Pennsylvania. How unusual is that? And what more can you tell us about how the two are working together?
KATIE BENNER, JUSTICE DEPARTMENT REPORTER, THE NEW YORK TIMES: Sure, you know, I think everybody has agree that it's incredibly unusual, in large part because the presence of the Justice Department, the statements from the Justice Department, make it seem like this is a really big investigation, and that these nine ballots are a real big deal. Even mine, it was seven ballots for Trump. And then the other two, they I believe, are for Biden.
It's interesting, what we've seen with Bill Barr is he's basically taken the traditional separation between the Justice Department and the White House that we've seen, basically, since Watergate, and he has worked to collapse that he is believed that that was unnecessary for a long time, is believed that Justice Department independence has eroded the power of the presidency overall. So he's really working hard to not only bring the Justice firm back --almost back into the White House, but he's also working very, very hard to make sure that Donald Trump is reelected. And the ballot issue is just one of the many ways in which he's doing that.
TUR: I guess what does that mean for Christopher Wray, we heard the Chief of Staff today on CBS throw Wray under the bus saying that he can't find emails, is the expectation that anybody who is hired and in a political position, potentially even a career position at the DOJ, the FBI, anywhere within that that agency should be politically aligned with the president and willing to do the president's political bidding.
BENNER: I mean, that's absolutely the message. There is a real loyalty test that goes on for every single Trump cabinet official. And it seems like Director Wray has failed his loyalty test. There -- we've reported several times over, over the last year that Director Wray is in trouble that, you know, Donald Trump is wanting to fire him at times, that a combination of Attorney General Barr and other officials have stepped in and said no. Now is to just to post the election.
But clearly, we've seen that Chris Wray no longer wants to withhold information from the American public that he feels is vital for us to know, including the fact that elections in general, even with mail-in ballots are safe and secure. And so we're going to see probably if he continues to do this, more attacks on Chris Wray, get another extraordinary sort of turn of events to see a president openly castigate his own FBI director in the middle of an election where we need national security more than ever.
TUR: It's extraordinary that all of these FBI officials are not finding what the President wants them to find. And yet they're still demanding. They go out and find it. Jonathan Lemire, from your reporting, how far is the President and the campaign willing to go to keep him in office?
JONATHAN LEMIRE, WHITE HOUSE REPORTER, ASSOCIATED PRESS: Katy, at this point, they haven't hit their limit yet. And I know the certainly the Democrats are concerned that there's much more to do. I mean, let's be clear here, take a 30,000 foot. Look, the President has sowed distrust in the system for months now suggesting repeatedly rally after rally night after night saying that the only way he could lose this election where if it could be rigged, he's gone after Democratic governors by name suggesting that not just that they might be trying to prevent him from holding rallies during the time of pandemic, but they will be overseeing a rigged mail-in voting system. And we know certainly that more Americans than ever before going to turn into mail-in balloting this time around because of concerns of the virus and not wanting to perhaps go to the ballot -- physical ballot box on Election Day.
What has happened last few hour, last few days, as just outlined with the Department Justice is shows that blurring between seemingly the efforts to reelect the President and the governance of the country. And I think that there is this fear that there will be more. We've heard the chatter about the military, would they be involved somehow? You know, certainly, there's a lot of fear and alarm on the Democratic side, that the Department of Justice will be, you know, perhaps used as a political tool here down the stretch to bring perhaps indictments or charges against members of key Democrats certainly. You know, the President himself has abused a lot about Hunter Biden and whether he should be charged with some sort of crime. And to be clear, there's no evidence that he's done anything wrong.
And I think that we also, of course, there are concerns that the government is going to just simply make it very hard to vote. We know about the cutbacks to the postal service. But also, the idea of pull monitors and enforcement for there is a fleece, an idea the President considered of having it though he doesn't have the power to do so. He mused aloud about sending a federal law enforcement to polling places to enforce against this voter fraud. So there's a lot of alarm about what levers of government they might try to use here to keep the president in office.
TUR: Peter, on the Supreme Court, we have some polling we can put up on the screen about where Americans stand on who should pick the next Supreme Court Justice, even though there is an opening right now. Most people say, the winner of the election. If that is Joe Biden, Joe Biden, if that is Donald Trump and Donald Trump. When it comes to the choice of Amy Coney Barrett, what is the president hoping to get out of her? And what can he confidently rely on her decision making?
BAKER: Well, Amy Coney Barrett has been a favorite of conservatives now for a few years. She's particularly popular among abortion conservatives who feel like she is a like minded jurist who would reopen perhaps Roe v. Wade. She has at least on one case, I think indicated that she thought the states ought to have great latitude to restrict abortions. And I think that, you know, her religious background at Notre Dame encourages a lot of religious conservatives that she sees things a lot like they do.
The President I think is hoping to energize those voters, voters who might have otherwise felt disenchanted because of the handling of the coronavirus or some other issues might have been turned off by his behavior in office or the way he conducts himself. But we'll see this court bite as really critical and turn out to vote anyway, remember one of the reasons why he thinks where the President thinks he won in 2016 is because that open Scalia seat that he then got to fill with Neil Gorsuch and he showed concern that he would fulfill his vow that he would, in fact, put somebody on that court that they would approve of this is what he's trying to do now with Amy Coney Barrett. We think is going to be announced tomorrow afternoon at five o'clock.
TUR: I wonder though, Jonathan Lemire, is there any concern that it could backfire and end up because the single-issue voters are already in Donald Trump's camp, they were already going to vote for him? Could it -- is their concern that it could backfire and end up motivating more Democrats to vote and leave not just Donald Trump out of office but the Senate Majority?
LEMIRE: Certainly right now that the choice, just even after Justice Ginsburg died, the idea of a vacant seat that the President was going to be able to fill it once enough Republican senators gave their blessing is energized both sides of the political divide. Certainly, as Peter just outlined, there is a hope, the White House believes this is going to fire up the President's base conservatives, perhaps some Republicans that have drifted away from him, those or independence, you know, who might be socially conservative, who took a chance on him in 2016 may have disproved a lot of what he done since it's sort of turned their back on it. But now it may be willing to come back because of this pick. But no doubt, it's firing up Democrats as well.
Just look at the fundraising numbers Act Blue, the democratic fundraising operation posted record totals over the last week since Justice Ginsburg died. We have seen there is certainly a lot of polling, that, you know, Americans believe that a right to a safe legal abortion should be the law of the land. And then if there's a perception that Roe vs. Wade is on the ballot here and could be indeed jeopardized and eliminated. There is a belief that that could fire up women, Democrats, not just Democrats, but women of all across the political spectrum, particularly in the suburbs against the president. And that is something that the campaign is nervous about, that they have already seen tremendous bleeding from 2016 support from -- in the suburbs, particularly among women, college educated women. And that will be one of the sort of fascinating subplots here in the weeks ahead to see how the Supreme Court pick impacts that particular group, but certainly for the president, they believe this, that their theory of the case has always been that though there may be fewer Americans who approve of the president that disapprove but the Trump base, they believe the enthusiasm is greater and they can turn them out at a much higher number than those who are going back Joe Biden.
TUR: If there's one thing Americans have learned over this past three and a half years, almost four is that elections have consequences. Peter Baker, Katie Benner and Jonathan Lemire, thank you very much for starting us off, everyone.
And coming up, we just four days to go until the first presidential debate, Joe Biden's surprising take on what he expects from the president, more of Stephanie Ruhle's exclusive interview next.
And later, Florida's governor out and about high fiving rally goers at last night's Trump event. What about his controversial move today? Not as many high fives. We're going to explain. The 11th Hour is just getting started on a Friday night.
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RUHLE: Speaker Pelosi has said you shouldn't debate the President because he has no fidelity to fact or truth. Does she have a point?
BIDEN: Well, she says, look, the people know the President's a liar. I mean, they know that. It's not like it's going to come as a surprise. My guess is it's going to be just trade attack. They're going to be mostly personal. It's the only thing he knows how to do. He doesn't know how to debate the facts. He's not that smart. He doesn't know that many facts.
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TUR: Former Vice President Joe Biden spoke exclusively to our Stephanie Ruhle today. He was in Washington earlier to pay his respects to justice Ruth Bader Ginsburg and is now back in Delaware to prepare for Tuesday's debate.
Back with us again tonight, Victoria DeFrancesco Soto, professor and assistant dean at the LBJ School of Public Affairs at the University of Texas at Austin, and David Plouffe, former Obama campaign manager and senior adviser to President Obama. He's also on the board of directors for the Obama foundation. His latest book is a Citizen's guide to beating Donald Trump. Welcome tonight.
David, I want to start with you on the subject of debates. Joe Biden has done a lot of debates, yes, but he's never done a debate against somebody like Donald Trump, who has Nancy Pelosi said has no fidelity to the truth and is also willing to get very dirty and very personal. Remember what he did back in 2016 with Hillary Clinton when he brought out Bill Clinton's accusers, at the debates, what is the Biden team needs to be doing right now to prepare him for how ugly it is likely to get?
DAVID PLOUFFE, FORMER OBAMA CAMPAIGN MANAGER: Well, Katy, you know, Joe Biden did really well in two high profile, high pressure debates, Sarah Palin, unconventional, Paul Ryan, a little more conventional but after Barack Obama's Obama first debate, we really needed him to pick up the ticket. So I think you need to -- the big things are the big things. You want to win exchanges around the pandemic and Trump's mismanaging of it and then you you've got a plan, who's going to look after the middle class, people in poverty, who's going to repair alliances, but you can't prepare for Trump. I mean, he is somebody who -- so Joe Biden is going to have to be both prepared, but also prepared to be very flexible.
And I think at the end of the day, the most important thing here is for Biden to be tough on Trump. This is a very vulnerable incumbent president, his approval ratings are terrible. He's losing and head to head races. He's in the low 40s, in many states, while his opponents at 50 are close to it. So you got to make a pay a price for that. Even this notion this week of Trumps suggesting he's not going to buy by the election returns. Joe Biden needs to punish him for that. Because it's 75 percent to 80 percent of the country believes whoever wins the election should be the president. It said, by the way, it's not 100 percent.
So I think you need to be prepared for Trump line for sure. I don't think what you can do is fact check them, you know, and say, well, Mr. President, you're wrong there. I think what Joe Biden did in that interview show was great, which is just call him a liar. You're lying. Here's the truth. Here's what I'm going to do. But I think you have to punish him. And I think that will help you both as swing voters, but also with Democrats, because they've waited almost four long years for Donald Trump to be held to account. And next Tuesday night, with most of the country watching, he can be really put on trial.
TUR: Let me ask you one more, because you're intimately you're close to Joe Biden, you know how he debates. You know, what bothers him. Let me read this from the Washington Post. The prospect of a cage match between a president for whom no subject is off limits, and a challenger who could be openly emotional is making some Biden advisors nervous. They see a fine line between Biden's passion and empathy which can appeal to voters and the raw anger that sometimes gets him in trouble and could undercut his pitch as a calming alternative to a president who thrives on chaos."
I want to challenge that idea, because that was the mold that Hillary Clinton took in 2016, same thing for Jeb Bush, for Marco Rubio, for Ted Cruz for John Kasich, et cetera, et cetera. Don't get down in the dirt with him. When you wrestle with a pig, a pig always wins. That's the same. Why not get down in the dirt with him? If he gets personal, why not get personal back? Why not be the fighter that Joe Biden said he was going to be? When it came to Donald Trump, the person who could go toe to toe with him?
PLOUFFE: I think he's going to have to. I mean it doesn't mean you need to go to subterranean depths. But I think that's what people want to see. Post swing voters, by the way, there's a lot of voters who've not checked into this ratio. And they have heard questions, is by no up to this Trump saying you see now. So by being tough and taking on the bully and dominating the bully, not throughout the entire debate, but you know, when you have your chance, and then I think it will really help you with turnout. I think he needs to fight for the country, needs to fight for the presidency.
But what makes these presidential debates so interesting, Katy, is you can prepare all you want. These are human beings. And once they step on that stage, you don't know what's going to happen. So for Joe Biden, I think the challenge will be when his family gets attacked. Of course, there's any number of places that take that back on Donald Trump's family, but his record votes he cast 40 years ago, things he said 30 years ago, he shouldn't chase down that rabbit hole. He needs to put Trump on trial, and then show the American people what he's going to do in his first four years as president.
TUR: Victoria, I wonder how many convincing voters there are right now? I know David was alluding to some swing voters who maybe haven't been paying attention up until now. There were 4.4 million 2012 Obama voters who didn't vote in 2016, more than a third of those were black voters. Is Joe Biden doing enough right now to convince those voters who didn't turn out to turn out in November?
VICTORIA DEFRANCESCO SOTO, LHJ SCHOOL OF PUBLIC AFFAIRS UNIVERSITY OF TEXAS: Well, it's tough campaigning during a pandemic. And that is why this debate is so critical. You know, going back into past debates, the Pew has done really good research on, you know, who do the debates weigh and on average, over the last couple of elections, we've seen that about 10 percent of voters say, you know, what, I was swayed, I made up my mind during the debate or right after the debate. So 10 percent of voters in an election is closest, this is critical.
And, you know, building on what David said, he has to be tough. Biden has to be tough. But for me, the take home is if I had one piece of advice for the Biden campaign, it's asking that Reagan --having that Reagan statement, you know, in 1980, where Reagan finished off that last debate, saying, are you better off today than you were four years ago? Because there's going to be a lot of disco balling from Trump and personal attacks and just randomness but at the end of the day, people have been dying, people have been losing their jobs. People are losing health care. And Joe Biden needs to keep remember, you know, make people remember what the reality of the last four years has been?
TUR: 39 days left how much do you want to see Joe Biden on the campaign trail out there interacting with voters, even if it has to be in a socially distance way?
SOTO: A lot more. And, you know, one of the things that we know from policy research is that there's no substitute for direct engagement ads, you know, whether that's TV ads or radio ads or print or mailers help, but at the end of the day, it's that personal connection. It's that pressing of the flesh that helps. In a pandemic, of course, things have changed.
But I do think that social distancing, engagement is going to be critical. People need to see Joe Biden out there. People need to get out there safely, but we just can't rely on media alone. It doesn't seal the deal.
TUR: Pressing of the six feet of air between flesh during this pandemic. Our thanks to Victoria DeFrancesco Soto and David Plouffe, we appreciate your time on this Friday night.
And coming up, coronavirus restrictions disappear. And a state that is still reporting dozens of deaths a day and update on the battle against the pandemic when "The 11th Hour" continues.
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GOV. RON DESANTIS (R), FLORIDA: There will not be limitations from the state of Florida. The order that I'm signing today will guarantee restaurants operate, will not allow closures. They can operate at a minimum of 50 percent regardless of local rule.
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TUR: Florida currently ranked third and most confirmed coronavirus cases in the country fifth in the number of death since the pandemic began. Governor DeSantis's decision was announced just hours after the U.S. top 7 million confirmed coronavirus cases. As of tonight, the nation's death toll exceeds 204,000.
More than 20 states have experienced an increase in coronavirus cases in the past 14 days. And tonight, the President held another rally this time in Newport News, Virginia, where many rally goers and the non-socially distance crowd did not wear masks.
Back with us tonight is Anne Rimoin, a professor of epidemiology at UCLA where she runs the University Center for Global and Immigrant Health Specializing in Emerging Infectious Diseases. Anne it is always good to see you.
I guess, you know, we got to start with Governor DeSantis, making this announcement basically saying no matter what we're going to ensure that businesses can operate. He's acting as if the pandemic is no longer a problem. Is it no longer a problem?
ANNE RIMOIN, UCLA SCHOOL OF PUBLIC HEALTH EPIDEMIOLOGY PROFESSOR: Hi, Katy. We are still in the thick of it. We have cases rising in many states in the United --throughout the country here. And when we think about us as a country, you know, we are 4 percent of the world's population, we have 20 percent of the deaths. We are nowhere near done with this. This is dangerous. This is irresponsible. And it is frankly just fueling more cases that we will be destined to see as time goes on.
TUR: The other day Dr. Redfield of the CDC said that 90 percent of the population was still at risk for getting coronavirus. There was also study in The Lancet, just recently that aligned with Dr. Redfield 's estimation, yet Americans across the country are not social distancing, they're not wearing masks, and they're not treating it as seriously, as you would imagine, they would be given that we're in the middle of a pandemic, and that we have 20 percent of the world's cases, even though as you said, we only have 4 percent of the population. What can you do when that message is not getting through?
RIMOIN: This is a real problem for everybody. Listen, I understand there is fatigue here, people are tired of this virus. But as many people have said before me, this virus is not tired of us. We have a long way to go. We only have certain tools available to us. And those include wearing a mask and we're seeing politicians, not just the president, now the governor of Florida, we've seen this over and over again, defying the logic of science and just staying away from the only tools that we have available to us which are wearing a mask social distancing hand hygiene, just these kind of blunt public health measures. We have no magic bullet at this point. And we don't have a vaccine available to us now, even if a vaccine does come available. We all have discussed now these issues of having all of the logistics that are going to be necessary to be able to deploy a vaccine.
And so best guess is it's not until the mid next year that we'll even have -- will start to have a vaccine available to people under normal circumstance -- under the best of circumstances. And so the bottom line is, we have certain measures available to us. We all need to be able to use them and watching the politics infect our public health is just making it much worse.
TUR: Let me ask you about a vaccine because today Governor Cuomo said that he would create a review board to double check the safety and effectiveness of a vaccine were one to come out soon. Part of the problem is that the vaccine has been politicized and that's why the governor feels like he needs to do that.
The President responded with a tweet saying Governor Andrew Cuomo of New York wants to put New York at the end of a vaccine list, and that he doesn't trust the FDA or federal government even though the vaccines are being developed by the finest labs in the world. Wish he trusted us on nursing homes.
The governor responded by calling this a threat. What is your take on a review board to test that any vaccine when it does become available?
RIMOIN: Katy, the bottom line is everybody is concerned about the politicization of science here. And so I you know, I understand Governor Cuomo's desire to do so. Just yesterday, the president of the National Academy of Science and the National Academy of Medicine released a statement that they were very concerned about the politicization of science.
And I think that what Governor Cuomo is doing is going to help allay certain feelings, you know, even if we have the best vaccine available to us if we don't have trust in the vaccine and in the vaccine process, nobody's going to take it and we won't reach herd immunity through a vaccine.
So I think it's a really good idea. I think it's important and I think that the, the process of vetting the vaccines should be open, transparent and as many scientists as possible should weigh in.
TUR: Anne Rimoin joining us from California. Thank you very much.
And coming up, we're going to try to put this historic day and historic week in context and consider the constitutional drama that may lie ahead with presidential historian Michael Beschloss, when "The 11th Hour" continues.
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JUSTICE STEPHEN BREYER, U.S. SUPREME COURT: A great Justice say a woman of valor, a rock of righteousness and my good, good friend and those are the things I thought she contributed. She made the world a better place for us. So you think Oh dear. And then you think Thank you. Thank you. And it will be a different place.
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TUR: Justice Stephen Breyer remembering his friend and colleague Ruth Bader Ginsburg earlier today, NBC News has learned the President has decided to nominate Judge Amy Coney Barrett to the Supreme Court. Her confirmation could mean a dramatic shift to the court that might have been prevented. The New York Times has new reporting on a 2013 lunch, a quiet one between President Obama and Justice Ginsburg, the Times reports Obama did not directly bring up the subject of retirement.
But Ginsburg but did say quote he did, excuse me, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation, the possibility that if the Senate flipped, he would lose a chance to appoint a younger liberal judge who could hold on to the seat for decades.
Joining us now is Michael Beschloss, NBC News presidential historian. His latest work is "Presidents of War." Michael, it's always good to see you especially on a day like your day. What do you make of that? What do you make of that New York Times reporting about that conversation between President Obama and Justice Ginsburg?
MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN: I assume it happened. And it's going to be up to Justice Ginsburg's biographer to, you know, tell us what was really going on in her mind that she wanted to stay on the court and take the risk that there might be a Republican president, but it shows you how much a president who is aggressive can do to create vacancies on the court.
Donald Trump has had three vacancies on this court. And all of them have been basically self-created by either him or Mitch McConnell. 2016, McConnell would not confirm Barack Obama's choice, Merrick Garland. 2018, by all accounts, Trump and the people around him prevailed on Justice Anthony Kennedy, to get off the court, even talking to Kennedy Hassan, who of all things was Donald Trump's private banker at Deutsche Bank. And now, of course, the Republicans and the Republican president rushing this confirmation through if they can, so that we have a justice later in the process than almost ever before.
TUR: What will Justice if she becomes justice? Amy Coney Barrett, due to the ideological makeup of the court? What could she mean for the court?
BESCHLOSS: This court unless something astounding happens is about to lurch to the right in a big way. Probably the biggest ideological shift since the beginning of the 1970s when Earl Warren, the great progressive Chief Justice retired, and Richard Nixon got four vacancies to fill. And they weren't all filled with strong conservatives, by the way, so this could be even greater.
And what's at stake, abortion rights, all sorts of other kinds of rights, Obamacare, there could be, God forbid, a contested election this November, that goes to the Supreme Court, ultimately, as it did in 2000. I hate to think what would happen.
TUR: You know, I don't I'm curious to think the reaction from the American public. If the court does lurch to the right as it could, if she is appointed, the majority of Americans just to take one issue, the majority of Americans support having legalized abortions, they support some caveats with it, but they support it being in existence. I mean, can you give us some historical perspective of what happens when a court is out of touch with the majority feeling of the American public?
BESCHLOSS: It depends on who's on the court. If they're rigid ideologues, they will not care. 1930s, Franklin Roosevelt passed the New Deal all these programs to help the American people who are suffering from the Great Depression. And the Supreme Court started striking a lot of these programs down as unconstitutional.
So in 1937, Franklin Roosevelt said, the only way I can fix this and bring the court a little bit more in tune with America, which basically love the New Deal, by and large, is to do what was derisively called court packing, adding up to five new members of the Supreme Court that Roosevelt could avoid. Roosevelt was so frustrated. He tried to take that to the summit Senate. But the Senate found that proposal too radical didn't let him do it.
TUR: At the time is different now with this idea that Democrats might want to add some justices if they were to win back the Senate and the White House.
BESCHLOSS: Oh, I think the times are not different. I think it's almost inevitable that we will see that happen, not necessarily that the program will succeed, but almost certainly that if you have a Supreme Court that seems much more conservative than the American people are, and the essentially arrangement of politics in this country, you'll see a big movement for Democrats to do Supreme Court reform. As you know, Katy, the Constitution does not have a specific number of Supreme Court justices. There should be. Stay tuned.
TUR: You know, people often say it is a constitutional rule. It is not I'm so happy you pointed that out. They did not decide how many justices would make up the Supreme Court in the Constitution. Michael Beschloss, if anybody would know, it would be you, sir. Thank you so much for joining us.
BESCHLOSS: I always love talking. Thank you so much.
TUR: And coming up we're going to update the situation -- thank you, Michael. And we're going to update the situation in Louisville tonight. We're tensions over the Breonna Taylor case remain high. When "The 11th Hour" continues, don't go anywhere.
TUR: In Louisville protests continue for a third night after a grand jury declined to charge any officers for the death of Breonna Taylor. There are fresh demands for transparency and new questions about existing evidence in light of never before released police -- police body camera video, video that until now we did not know existed. Here's NBC News correspondent Gabe Gutierrez.
GABE GUTIERREZ, NBC NEWS CORRESPONDENT (voice-over): This newly released body camera video shows a chaotic few moments after the March raid on Breonna Taylor's apartment. It was provided by the attorney for Louisville Sergeant John Mattingly who'd been shot.
UNIDENTIFIED MALE: Walk. Cover him. Let's go.
GUTIERREZ: With no ambulances in sight, fellow officers rushed him to safety. Louisville Police have repeatedly said there's no video of the actual shooting. But more than six months after Taylor's death, it raises new questions about what other material is out there.
UNIDENTIFIED MALE: Release that transcript.
GUTIERREZ: Today, Taylor's family demanded that Kentucky Attorney General Daniel Cameron disclose exactly what he presented to the grand jury that resulted in wanton endangerment charges for one officer whose bullets ended up in a neighboring apartment but no charges against any officers for causing Taylor's death. Cameron saying their actions were justified.
UNIDENTIFIED MALE: Say her name.
UNIDENTIFIED FEMALE: Breonna Taylor.
GUTIERREZ: Her aunt read an emotional written statement from Taylor's mother.
BIANCA AUSTIN, BREONNA TAYLOR'S AUNT: (INAUDIBLE) would never do his job. But what I do know is that him and countless others will go to bed sleeping with Breonna's face. Still hand her. Say her name.
GUTIERREZ: The Attorney General's Office responded, everyone is entitled to their opinion but prosecutors and grand jury members are bound by the facts and by the law.
Across the country overnight, many peaceful demonstrations. In Los Angeles minor injuries when a driver hit a protester. In Seattle an officer is now on administrative leave after he rolled his bicycle over person lying in the street Wednesday night.
UNIDENTIFIED FEMALE: A bunch of us and trying to walk safely.
GUTIERREZ: But in Louisville, backlash after Representative Attica Scott was arrested and charged with felony rioting. She's Kentucky's only black female state legislator who proposed Breonna's law which would ban so called no knock warrants statewide.
ROBERT SCHROEDER, LOUISVILLE POLICE INTERIM CHIEF: Under Kentucky's Riot statute, anyone who is part of a group causing damage or riotous behavior is subject to the charge of rioting.
GUTIERREZ: Today, Scott called charges ridiculous and said her group was simply trying to walk to a church right before curfew when police surrounded them.
REP. ATTICA SCOTT (D), KENTUCKY: They came prepared for war and for battle against the people they are paid to protect.
GUTIERREZ (on camera): The overnight curfew has been extended (INAUDIBLE). Tonight, protesters are already back on the streets.
TUR: Just remarkable video, Gabe Gutierrez with that report from Louisville tonight. There was more of "The 11th Hour" on this consequential Friday night right after the break. Stay with us.
TUR: Before we go tonight, a quick note about tomorrow special coverage of the president unveiling his Supreme Court nominee looking at the political fight and the legal consequences of this unprecedented moment we find ourselves in and embattled incumbent president trying to confirm a new Supreme Court Justice a little more than a month before the November election.
In addition to all day coverage, my colleague Nicole Wallace will be here to bring you the announcement live tomorrow at 5:00 p.m. Eastern. Don't miss that.
That is going to do it for us tonight. Brian will be back tomorrow -- we would, excuse, me on Monday. On behalf of all my colleagues at the networks of NBC News, good night.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END
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