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Transcript: All In with Chris Hayes, 1/18/22

Guests: Adam Schiff, Harry Litman, Katie Benner, George Conway, Tim Kaine


The House Select Committee investigating the Jan. 6 attack on the U.S. Capitol has issued a new round of subpoenas, this time to Rudy Giuliani, Sidney Powell, Jenna Ellis, and Boris Epshteyn. According to a report, Eric Trump and Kimberly Guilfoyle`s phone records are being subpoenaed by the January 6 Committee. Justice Sotomayor attends Supreme Court arguments remotely due to Justice Neil Gorsuch refusing to wear a mask. The Senate begins debate on voting rights legislation.


JOY REID, MSNBC HOST: So, for having zero problem risking the life of your colleague, because you just don`t feel like putting a mask on, you Neil Gorsuch are both a rotten co-worker, dangerous to be near in a pandemic, and tonight`s absolute worst. And that`s tonight`s "REIDOUT." ALL IN WITH CHRIS HAYES starts now.


CHRIS HAYES, MSNBC HOST (voiceover): Tonight on ALL IN. All the networks are now reporting new subpoenas for Trump attorneys.

RUDY GIULIANI, FORMER LAWYER OF DONALD TRUMP: Oh my goodness, all the networks. Wow.

HAYES: Tonight, Congressman Adam Schiff on what his committee wants to know from Rudy Giuliani, Sidney Powell, Jenna Ellis and Boris Epshteyn.

Plus, how team Trump`s campaign of lies laid the groundwork for an attempted coup. And George Conway and why he says prosecutors must start investigating Donald Trump.

Then, the fight for voting rights finally begins on the Senate floor, and the shocking report of a Supreme Court Justice and his refusal to wear a mask to protect his supreme court colleagues when ALL IN starts right now.


HAYES (on camera): Good evening from New York. I`m Chris Hayes. Tonight, the committee investigating the seditious conspiracy to overthrow the 2020 election has moved one step closer to Donald Trump himself, who by all accounts is not close with many people. But for years, especially since the start of his political career, there`s been one man by his side, Rudy Giuliani.

Early in his own career in New York, Giuliani, of course, made his name as a tough, hard-charging crime-fighting prosecutor. You`d go on to hit up on the most powerful trial courts in the country, the Southern District of New York. That catapulted him to Mayor. And despite an intensely polarizing tenure as mayor, he nonetheless then rose to national prominence after 911 just weeks before he was set to leave office.

In 2008, Giuliani was even considered the front runner at one point to become president himself. But in the year since, Giuliani has devolved into something of a political punch line, even helping bring about Trump`s first impeachment with his attempts to dig up dirt about the Bidens in Ukraine.

And Giuliani perhaps, more than anyone outside the government, work to abet Donald Trump`s January 6 coup which led to Donald Trump`s second impeachment. Giuliani`s efforts culminated with that truly bizarre press conference at Four Seasons Total Landscaping in 2020.

And today, the bipartisan committee investigating January 6 has finally decided it needs to speak with Giuliani. He was subpoenaed along with his fellow crew attempting lawyers, Sidney Powell, and Jenna Ellis, and Trump campaign adviser Boris Epshteyn.

Giuliani and Powell and Ellis were everywhere in the days following the 2020 election. You probably remember their faces in that footage. And more than anyone except maybe Donald Trump, and maybe even more than him honestly, they work to push the big lie of election fraud and countless deranged conspiracy theories, which of course, laid the groundwork for the January 6 insurrection.

According to the letter to Giuliani from the committee, between mid- November 2020 and January 6 2021 and thereafter, you actively promoted claims of election fraud on behalf of former President Trump and sought to convince state legislators to take steps to overturn the election results.

According to witness testimony and public reporting in December 2020, you urged President Trump to direct the seizure of voting machines around the country after being told the Department of Homeland Security had no lawful authority to do so.

According to public reporting on January 6, 10 days prior, you are in contact with then-President Trump and members of Congress regarding strategies for delaying or overturning the results of the 2020 election.

As for Sidney Powell who pushed perhaps some of the most bananas conspiracy theories, for instance, about Venezuela and other four countries hacking the election, the committee writes, "You urge President Trump`s direct the seizure of voting machines around the country to find evidence that foreign adversaries had hacked those machines and altered the results of the election."

The committee similarly notes that Ellis and Epshteyn also work to publicly sow doubts in the results of the election. In both their letters, the committee notes, "you publicly promoted claims, the 2020 election was stolen and participated in attempts to disrupt or delay the certification of the election results based on your allegations.

Now, the committee is right. I mean, this is not a hidden plot. We know all of this is true because we saw them do it right out in the open.


SIDNEY POWELL, The Dominion voting systems, the Smartmatic technology software, and the software that goes in other computerized voting systems here as well, not just Dominion, were created in Venezuela, at the direction of Hugo Chavez, to make sure he never lost an election after one constitutional referendum came out the way he did not want it to come out.


GIULIANI: They stole the election. It`s not the first one they stole. Not the last one they`re going to steal unless you do something about it.

JENNA ELLIS, ATTORNEY FOR PRESIDENT TRUMP: President Trump is right that there was widespread fraud in this election. We have at least six states that were corrupted, if not more, through the voting systems. We know that President Trump won in a landslide.


HAYES: OK, all that`s false. You know, that`s false, but I just feel duty- bound to always say that after we play people making false claims, all false. What is interesting about this particular round of subpoenas is that they appear to be broadening the scope of the investigation by the committee because they`re not specifically about that day and about the attack on the Capitol on January 6. But instead, the ways in which Trump`s allies laid the groundwork for the insurrection and take place. Because without the big lie of a stolen election, without Giuliani and Powell and Ellis out there beating the drums, there would be no pretense to storm the Capitol.

It`s notable that Donald Trump is still pushing that big lie. If anything, he`s only gotten more brazen about it over the last year. It`s the subtext, if not the text behind is likely 2024 run, the election was stolen from him last time, so he`s running to take back what is rightfully his. And it`s clear, he`s gearing up to run the same playbook again. Just listen to him shout out none other than Boris Epshteyn just over this past weekend.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: Another one is a real fighter, a lawyer, tough and smart working on a lot of different things, Boris. Now, most people call him -- call him Epshteyn. But I call them Boris Epshteyn because that`s the way -- Epshteyn which is where they -- the way they say it in his original country. And he`s been incredible and a fighter. Boris, hi Boris. Boris Epshteyn.


HAYES: I`m glad he took that note on the pronunciation. As the committee points out, Epshteyn works to help overturn the last election which makes him of course exactly the type of fighter that Trump needs to do it all over again. Again, they`re not hiding anything.

Congressman Adam Schiff is a Democrat of California. He serves on the committee investigating January 6. He served as the Lead House Manager for Donald Trump`s first impeachment and he joins me now. And Congressman Schiff, let`s talk about Rudy Giuliani who was a central figure in both of these -- in both plots that resulted in both impeachments. Why do you think it`s important the committee sit down and talk to him here?

REP. ADAM SCHIFF (D-CA): Well, I think as you can see by the series of subpoenas that we`ve issued over time, they`re going to hire and hire people in and around the administration. And Rudy Giuliani was really at the center of things. He was one of the most aggressive promoters of that big lie about the election. He was involved in trying to get these state legislators to send alternate slates of electors or to delay sending cites of electors.

And to me, the most shocking claims are some of those that you just repeated, Chris, and that is, they were involved in urging the President reportedly to seize voting machines. That`s the kind of thing you see in the developing world. You don`t see it at least until now in the United States of America.

So, there`s a lot he could tell our committee, you know, certainly a lot we`ve uncovered already. But I think he`s a pretty central figure in all of this.

HAYES: Should we interpret the issuance of subpoenas to mean that invitations for voluntary cooperation were rebuffed?

SCHIFF: You know, that`s not always the case. You know, generally, we do seek voluntary cooperation to begin with. Where we know certain parties are very likely to be hostile, we don`t waste time spending weeks trying to get their voluntary cooperation. And we have gone straight to subpoenas in some circumstances.

And you know, you`re also right about one of the points you`re making earlier, which is, our inquiry is broader than just what happened on a single day. It`s all of the multiple lines of effort to overturn the election that end culminating in that attack on the Capitol. But it`s important to understand January 6 to understand the context of all these other failed efforts overturn the election, and then the last resort, which we saw on the six was violence.

HAYES: Yes. And I didn`t know -- you know, it`s hard to keep track of what information we have is public and not because obviously there`s a lot of moving parts, a lot of things building up to that, but this jumped out at me in the Boris Epshteyn letter. You are reported to participated in a call with former President Trump on the morning of January 6, during which options were discussed to delay the certification of election results in light of Vice President Pence`s unwillingness to deny or delay certification.

I don`t know if you track what`s public and what`s not but, what do we know about that phone call?

SCHIFF: You know, I try to track what`s public and what`s not and, as you might imagine, have to err on the safe side in terms of the committee. But, you know, obviously, we would like to know, anything that went on during that call, what other options that very late stage were being contemplated to try to still overturn the election.

And so, you know, he`s a -- obviously if he was on that call, would have a lot to tell us. If he was part of that war room at the Willard Hotel, he had a lot to tell us. And we hope that he will answer the subpoena. And if not, as with the others, we`ll have to figure out what the recourse is.


HAYES: There`s, there`s a number of documents that you`ve been seeking from a variety of sources I just want to go through. Som one thing just to note here is that Bernie Kerik did come in, talk to the committee, provided batch of documents to the Select Committee. And I raised that only to note that, obviously, the people that don`t comply like Steve Bannon most -- I think infamously and Mark Meadows are news items and newsworthy for obvious reasons.

But the vast majority of people that you`ve wanted to talk to you have talked to including some people like Bernie Kerik that one might suppose wanting to talk to you in so much as he is an ally or loyalists to former President Trump.

SCHIFF: Well, that`s right. You know, Mr. Keric worked very closely with Rudy Giuliani. This is all a matter of public record. And a great many people are cooperating with us. We would hope that everyone would, but certainly a great many. Now, I think over 400 have cooperated with us. But you can -- you know, getting back to point us making earlier, as we get to more and more significant witnesses, they -- you know, they are often closer and closer to Donald Trump, and therefore, people that the former president is urging and has some leverage over in terms of getting them to refuse to cooperate.

So -- but we are, as you say, getting a lot of help, and sometimes even less publicly known witnesses can offer some of the most important insights, but I can`t be more particular than that.

HAYES: Yes, we should note, I don`t know if we have the B-roll of the -- of the infamous Four Season Landscaping press conference of Rudy Giuliani, but Bernie Kerik is in that shot. He`s standing behind Rudy Giuliani there. So, as you said, a matter -- a matter of public record.

There`s also some news breaking just recently that the National Archives which is in possession of has custody over a tranche of documents that committee is seeking related to the ex-President while he was in office, intends to turn some of those over tomorrow at 6:00 p.m. According to DOJ letter, the docs were not covered by the D.C. circuit`s administrative stay and SCOTUS, the Supreme Court hasn`t acted on Trump`s emergency request yet. So, do you anticipate those actually being transmitted to you?

SCHIFF: I certainly hope so. And, you know, we`ll have to see what happens between now and then. But I would certainly hope so. And, you know, I would hope that the Supreme Court will very quickly resolve the litigation regarding the archives, and refuse to take up the case from below.

Both the legislative branch and the executive branch are in agreement that the record should be provided. And it would -- it would be antithetical to a conservative court to disagree with those two branches of government. I think the only reason they would do so as if they`ve now become nothing more than a partisan court.

HAYES: I couldn`t help but notice how expeditiously this court move to have full briefing, oral arguments, and a full decision striking down the proposed testing or vaccine mandate that the Biden administration proposed. It just was notable to me that when motivated, they appear to have the ability to move quite quickly. I wonder if you noted that as well.

SCHIFF: Yes, without a doubt. And you see, you know, the other courts, the District Court of Appeals moved with great alacrity in our particular case. And there`s no reason the Supreme Court can also particularly when the law I think is so clear, and would clearly militate in favor of not taking up the case. So, I hope that they will move with swiftness.

HAYES: Finally, there`s another subpoena that we`ve found out about which is phone records. Again, there are sort of third-party subpoenas that we found about through press reports to tech companies that may be in possession of records. In this case, Eric Trump and Kimberly Guilfoyle`s phone records that have been subpoenaed by the January 6 committee. Eric Trump calling it in a statement a witch hunt in a one-sentence statement. Can you confirm that those subpoenas have happened?

SCHIFF: I can`t confirm any particular subpoenas. But I can`t say that we`ve acknowledged that early on, we sent letters, preservation letters, to these telecommunication companies. We have followed up with subpoenas to request records in certain cases. And you know, these records, I should emphasize, they`re not the content of conversations. They`re the -- you know, who was the party to the conversations, the dates, the duration.

But that can be very important to evidence and lead to additional witnesses that can corroborate the testimony of witnesses, can tell us who was in communication with whom while the attack on January 6 was going on. So, that can be very important. but in this case, I can only talk generally and can`t confirm with respect to those two particular people.


HAYES: Finally, and I know that you`re one member of a committee with multiple members. And you know, I don`t know how the communications work here, but I just wonder if you have any indication so far from any of the subjects, these four subpoenas that were issued today about what they intend to do?

SCHIFF: I don`t have any indication yet. You know, I think we can anticipate certain things that they`re likely to say I think Rudy Giuliani`s attorney has made some public comments about him claiming attorney-client privilege or executive privilege. There are clearly lots of activities that he was a witness to and a participant to that do not implicate attorney-client privilege or where that privilege would be waived. It`s very unlikely that executive privilege would apply at all.

And so, you know, much as with other witnesses, when we, for example, subpoenaed Hannity, we made it very clear, we weren`t interested in his journalistic work on Fox, if that`s what you call that. There are plenty of facts that Mr. Giuliani and other attorneys or otherwise can testify to that are not privileged. And we want to make sure that the committee has all the facts that we can present the American people.

HAYES: All right, Congressman Adam Schiff, thank you very much.

SCHIFF: Thank you.

HAYES: Of course, the attack on the Capitol couldn`t have happened without the constant drumbeat of baseless election fraud conspiracies that came before it. And the Trump allies facing subpoenas tonight were some of the most influential, most high profile team members in that effort.

Next, how Donald Trump`s election fraud A-team fanned the flames of the big lie and the many lawsuits some of them are already facing as a result.



HAYES: The most important events of January six happened of course at the Capitol. But today`s subpoenas from the committee investigating that date move beyond the events of that single day in Washington D.C. to the massive effort across the country in the months leading up to the attack.

One of the four people who just got subpoenaed -- of the four people who just got subpoenaed, three of them spent weeks traveling from state to state spreading Trump`s big lie. Following the election, Rudy Giuliani, Jenna Ellis, and Sidney Powell were everywhere planting the seeds the election have been stolen from Donald Trump. He had -- he had been wronged by extension, so had his supporters, and lighting the flame for the January 6 insurrection.


GIULIANI: What was it call by? Oh my goodness, all the networks. Wow, all the networks. We have to forget about the law.

POWELL: American patriots are fed up with the corruption from the local level, to the highest level of our government. And we are going to take this country back.

TRUMP: It`s very interesting to see what`s going on. And this was an election that we won easily. We won it by a lot.

GIULIANI: I gave you the answer.

UNIDENTIFIED MALE: Point of order.

GIULIANI: The answer that I gave you is they didn`t bother to interview a single witness.

ELLIS: But what the state legislatures really need to recognize is that they don`t need these governors.

GIULIANI: We use largely Venezuelan voting machine, in essence, to count our vote. If we let this happen, we`re going to become Venezuela. We cannot let this happen to us.


HAYES: Katie Benner is a justice correspondent for The New York Times. Harry Litman is the former Deputy Assistant Attorney General of Department of Justice. He now host the Talking Feds podcast. And they both join me now.

Harry, let me -- let me start with you on these three because, you know, it`s always been striking to me, if professional legal ethical codes and the guild of the bar means anything, it is supposed to enforce some codes of conduct so that you can`t just go into court and make entirely baseless claims and waste everyone`s time. And yet these individuals seem to have done a lot of that and have incurred some bit of professional sanction and wrath for it. Like, what is the legal system been doing with these lawyers before today`s subpoenas?

LITMAN: Gearing up. Look, Giuliani is already has his license suspended in New York and D.C. Powell is already in a world of hurt in Michigan, owing some $200,000 in legal fees and being referred for disbarment. Jenna Ellis` claims have been -- her own credentials have been wildly misrepresented.

There are canons that say you can`t lie to the court and you can`t lie to the public. And you know, as lawyers, these guys are walking train wrecks. Their really only credential was to say false things for Trump.

So, at the ethical legal level, I think the system is catching up to them. Of course, today is more about their own concerted action and possible civil and criminal liability. And even more important, as I think Congressman Schiff made clear, their possible connection to the President and all of the activity on January 6, and before and after. But they`re in a world of hurt. I wouldn`t expect them to be practicing lawyers in in a matter of a year or so.

Katie, how significant do you think the subpoenas of three individual by the committee given their proximity to Trump and the fact that we know these are people who are very regular contact with him throughout those key months in the build up to the 6th?

KATIE BENNER, JUSTICE CORRESPONDENT, THE NEW YORK TIMES: You know, I think this subpoenas have a lot of optical significance because of the proximity that these folks do have to Donald Trump. It`s very unlikely they will actually provide the committee with any information, even if they are charged with contempt.

Just being found guilty of contempt does not mean that you have to provide the committee any information ever. But symbolically, it`s very important that these people be subpoenaed, because there is evidence that they could provide.

Also keep in mind that what they were doing and spreading the big lie, if you look at what the Justice Department said on January 5 with the Attorney General Merrick Garland`s recent statements, and what has come out in hearings with the head of the National Security Division, the Big Lie is something that has animated domestic extremism. And if you are the Justice Department, you see the attack on January 6 as an act of domestic extremism, or even domestic terrorism.

And so, as the committee tries to figure out why this happened, they will want to know motivation. And people have said that their motivation come to the Capitol is this belief that the election was stolen. And the Justice Department`s own national security experts continue to say that it`s the Big Lie that continues to fuel domestic extremism here at home.


HAYES: Yes, it`s -- we`ve made this point before, but it`s an important one the point you`re making, Katie, just to reiterate, that if you think it is the case that a free and fair election was actually stolen successfully by Joe Biden, and put in power against the will of the people, you`re living in truly extreme times in which the liberal law hasn`t held, right?

There is a kind of permission structure for radical action implicit in the belief that that`s actually the case. And of course, that`s key to what we`re seeing. I want to -- one follow up to you, Katie, and then I`ll come back to you, Harry. And this is reporting of a colleague of yours. It`s not your byline at the New York Times, but just having to do with the Department of Justice investigation, which of course, is sprawling and hundreds of people who have been processed through the legal system.

That in at least one case, individually and Brandon Straka, that the -- that the prosecutors are said to have asked about Trump`s role in the January 6 riot, which seems significant. And maybe we haven`t seen that yet in any of the charging documents that Straka`s lawyer says prosecutors wanted to know about any coordination with Trump or his cutouts.

BENNER: So, we haven`t seen that in the charging documents, to your point, but we actually have seen people who have been charged by the Justice Department say that they did what they did. They came to the Capitol on January 6, that they illegally entered the building, they destroyed property, etcetera, because they believed that Donald Trump wanted them to. So, this is actually an idea that has been brought up by people who`ve been charged themselves.

Also keep in mind, Attorney General Garland did say on January 5 that the Justice Department has not ruled out investigations of anybody related to January 6, and that they are willing to investigate people even if they themselves did not enter the Capitol on that day. The Department has already made good on that by charging the head of the Oath Keepers Stewart Rhodes with sedition.

Mr. Rhodes very notably, did not actually enter the Capitol. He did not illegally enter or himself try to stop Congress that day. But if you look at the charging documents, the department says that he was a key player and sort of the mastermind behind the attack.

HAYES: Harry, in terms of the individual subpoena today, particularly the three lawyers, I think Katie is correct to say that the odds of their cooperation probably pretty low. We`ll see what happens. How do you think this plays out?

LITMAN: All right, so they are low but what, they have a lot to lose more than the average person. If they are held in contempt and it`s sustained, it really is curtains for them professionally. Now, I also want to second what Katie said, and just say very roughly in both January 6 and DOJ are about trying to align what we now know as being, you know, a seditious conspiracy case to the Oval Office. And that would be roughly speaking, I think, two conspiracies. One a kind of marginal group that is a bridge from Trump to these folks, fundraising, etcetera.

And so, Sidney Powell, among others, represented Michael Powell, and we`re beginning to inch into another words, the Michael Powell, Alex Jones land. In any event, yes, I think they`ll at least come out talking tough. And it`s not clear to me that the committee really believes that they need their testimony. But they want to put down markers for a broader inquiry, and there`s a lot of possible charges.

They could be subject to criminal charges under what`s become the kind of go-to crime, I think, besides seditious conspiracy, and that is impeding an official proceeding under 1512. But they`re looking at potential criminal referrals.

HAYES: All right, Katie Benner and Harry Litman, thank you both. I learned a lot from that.

Ahead, as the January 6 investigation moves steadily through Donald Trump`s inner circle, what about the man at the center of it all? George Conway on why he says prosecutors need to start investigating Trump after this.



HAYES: When you attempt to coup, it tends to be a pretty high stakes kind of shoot the moon situation in which you either are successful and win power or you lose and bad things happen to you. You`re prosecuted, arrested, put in jail, or many places much worse. None of that happened to Donald Trump, so he is out bopping around planning the next one.


TRUMP: We won the state. It`s something that I contest and I`ll continue to contest it. We were up by a massive amount at 10:00 in the evening. And then all of a sudden, things closed and reopened, and look what happened. So, we have to be a lot sharper than next time when it comes to counting the vote. There`s a famous statement. Sometimes the vote counter is more important than the candidate and we can`t let that ever happen again. They have to get tougher and smarter.


HAYES: That was Donald Trump over the weekend before his Arizona rally, apparently quoting Joseph Stalin on the importance of the Republican Party controlling the vote counter, in this case, in the state of Pennsylvania. And while again, he`s a free man, he`s able to do what he wants, say whatever he wants to whoever, schmooze lies like that anyone who will listen, there is a growing chorus of people saying that there have to be criminal and legal consequences for what he plainly attempted.

One of them prominently his conservative lawyer George Conway. He recently authored an opinion piece in The Washington Post arguing that the investigative road must prosecutors to the individual most responsible for the events of January 6, former President Donald Trump.

George Conway joins me now. I wonder, George, if you can just sort of lay out your case here for what you -- what you think should happen and why.


GEORGE CONWAY, CONSERVATIVE LAWYER: Well, I don`t think it`s that complicated. He needs to be investigated for any number of the charges of the sort that had been brought against others. I mean, Judge Mehta in the District of Columbia, called some of the people that he was sentencing, the people who walked into the Capitol on January 6 and broke into the Capitol, he called them pawns. And we`re wherever the higher-ups he was asking?

Well, you know, they`ve gotten now with the Oath Keeper indictment last weekend -- week. They`ve gotten -- they`ve gotten to maybe the bishops and the knights, but they`re -- they got -- they got ways to go. They need to go up. And because they were all there, and they say this, these people, because of Donald Trump.

Donald Trump started this all. He started it by lying about the election almost -- even before it happened. And he kept -- he was the one who basically told him to go up on Capitol Hill. And there any number of theories by which he could be, you know, potentially held criminally liable for this stuff.

I mean, Harry Litman who you just had on talking about 18 USC 1512 C2 which is the perfect fit for this. It talks about -- you know, it criminalizes. It says, if somebody should go to jail for not more than 20 years, if they corruptly obstruct influence or impede any official proceeding, the statute defines official proceeding to include a proceeding of Congress. And the judges in this district -- in the District of Columbia have held that an official proceeding of Congress includes the January 6 counting of electoral votes for the joint session.

And so, the question is, did he try to obstruct influence conspire to obstruct or influence or impede that proceeding? Yes, he did. Did he do it corruptly, well, let us count the ways. He lied his ass off for two months about the election. That seems pretty corrupt. He tried to coerce his vice president in debasing, would you like to have the power to not count these votes and you and I will be reelected. That seems pretty corrupt.

Your you know, your colleague, Rachel Maddow has been showing these certificates that Republicans had prepared or just fake electoral votes certificates. And those were part of -- you know, those were linchpin of the Eastern memo that was presented to Donald Trump or argue to Donald Trump. Did he have something to do with those? Does he know about those fake certificates? It sounds pretty corrupt?

And, frankly, when you`re dealing with Donald Trump, you know, you asked if Donald Trump does -- did X, you`re bound to ask the next question, which is did he do X corruptly? And, you know, sometimes, it`s like the answer is yes, it`s a fair question to ask. And given the fact that what he was trying to do here, whether he was doing it correctly or not, or with the intent to incite violence or not, he was trying to end constitutional democracy in the United States, which he was, you know, sworn to preserve, protect, and defend.

There isn`t a greater crime that could have been committed by the President of the United States. And what that calls for is, you know -- and the January 6 Committee is all over that. I hope that the Justice Department is working its way to that. I mean, it seems to me that there should be, you know, excuse the metaphor, grand jury proctological exam of Trump and everybody he had contact with who had something to do with all of these efforts to stop the electoral vote for being counted or delayed on January 6, 2021.

HAYES: Yes, your point there -- I mean, Lawrence Tribe, (INAUDIBLE) make this point, other people have made similar points, that basically, given what we know, it`s in the public record -- I mean, even you reading from the U.S. Code, they`re based purely on what we know today from news reports, the steady stream revelations coming from the House Select Committee, the Attorney General has a powerful justification for a robust and forceful investigation into the former president and his inner circle. Which is to say, it does seem like obviously, there`s sufficient evidence - - there`s sufficient facts as a predicate for criminal investigation of the individual that was obviously driving the whole thing. And everyone knows that. There`s no real mystery about whether he was the one doing it.

CONWAY: Right. And he was the one doing it. And this is, again, the greatest crime you could imagine that a president could commit. If you don`t, at least, look at this with the closest possible microscope, you know, you`re basically saying that a president is completely above the law. This isn`t about, you know, whether or not he spends money that wasn`t appropriated from Congress, which would be a big deal. This isn`t about whether he, you know, made some argument about the interpretation of a law and pushed it one step too far. This is about the Constitution basically being destroyed.

And if the Justice Department doesn`t use every available resource to look into whether or not that you`d be criminally prosecuted, it would be a travesty. And I think, you know, Judge Garland speech -- or Attorney General Garland speech last week said that they are not going to stop at any level. They`re going to go and they`re going to look at everybody. I think that`s a fair way of interpreting. That`s the way I would like to interpret it. And I hope he gets to doing that.


HAYES: Let me ask you. I`ve often wrestled with this and you`ve written in other places about criminal liability that the President is exposed to in other -- in other ways. I mean, the New York Times investigative piece on his tax records based off of actual documents seem to implicate some -- implicate some pretty, pretty aggressive tax strategies with some even called fraud on its face. There`s a criminal investigation in New York City District Attorney`s office. There`s -- we think a criminal investigation in Fulton County, Georgia, about the I think corrupt attempt to bully Raffensperger into overturning election.


HAYES: Yes, right. So, this is -- this is someone who has danced on the edge of the law and criminal conviction for a very long time. And is he just -- is he inordinately savvy to never quite do the thing that`s smoking gun or is he just protected now by the worry about norms, political ramifications, institutional health of American democracy if you try the former president. Like, what is saving him right now to your mind?

CONWAY: Well, I think what saves him often is the thing that has always saved him. And I think Mary Trump put it quite well in in her book. It`s just there`s always people around him ever since he was a child protecting him and trying to keep him out of trouble and taking the blame for things that he does.

And beyond that, there`s the thing that he does is he does a lot of this stuff out in the open which fools people into thinking, well, if this were -- if this were really illegal, and he were thinking -- you know, if he had criminal intent, he wouldn`t have been so open about it. But that`s precisely what makes him so terrible and exactly what shouldn`t -- it should not protect him that he was more open about basically destroying constitutional democracy in the United States than maybe somebody else might have been, and nobody -- no president has ever done before.

HAYES: It`s a bizarrely effective alibi to constantly be just plotting doing it in public, and then turn around and say, well, clearly, I wouldn`t have just done this in front of you if there were some sort of --

CONWAY: There`s also his state of mind. I mean, he`s so seemingly crazy that when he says something that`s just off the wall and false, you know, you`ll kind of wonder he`s just nuts enough to believe some of this stuff. And you know, the fact of the matter is, he gets away with a lot because of that.

HAYES: George Conway, thank you for your time tonight, sir.

CONWAY: Thanks.

HAYES: Do you remember when the Supreme Court ruled COVID is not an occupational hazard? Next, the Supreme Court Justice who reportedly refused to wear a mask despite the health concerns of his own high risk colleague. We`ll be right back.



HAYES: The Supreme Court is probably one of the most leakproof institutions of all of American governance. So, when something does come out, it`s big deal. And today, we got a pretty shocking story. It stems from this moment earlier this month when the court returned to the bench for the first time since the holidays. As you can see, with Omicron cases surging, all of the justices wearing masks except over there on the right, Neil Gorsuch. Also, one justice was missing, Sonia Sotomayor, who participated virtually from her chambers.

Now, Justice Sotomayor has had type one diabetes since childhood, putting her at a higher risk for developing serious complications if she is infected with COVID-19. Now, court sources told NPR that with the Omicron surge, Justice Sotomayor did not feel safe in close proximity to people who were unmasked.

Chief Justice John Roberts understood that and "asked the other justices to mask up." As you can see in the court sketch, Justice Gorsuch who sits next to Justice Sotomayor was the only one to refuse that request. NPR reports Gorsuch`s continued refusal to wear a mask has also meant Sotomayor has not attended the justices weekly conference in person joining instead by telephone.

So, you could say that the lack of some sort of rule on wearing masks with Chief Justice Roberts could have enforced on the court is an occupational hazard for Justice Sotomayor. It`s changed her workplace, made it less safe, puts her health in danger at her place to work.

And it just so happens the argument the court heard on the first day back after the holiday break were about vaccine or testing mandates, and whether the danger of catching COVID counts as an occupational hazard.

Keep in mind, in addition to Justice Sotomayor participating remotely, two of the lawyers arguing for blocking the mandates were doing so by phone. Why? Because they tested positive for COVID. And the court thought, they probably shouldn`t have COVID-positive people in our workplace.

But in the end, the majority, including Justice Gorsuch ruled against the vaccine or testing requirement for large companies writing, "Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational, emphasized in italics, hazard in most. COVID-19 can and does spread at home, in schools during sporting events and elsewhere -- everywhere else that people gather."

Well, OK, yes, sure. It sure seems like an occupational hazard for Justice Sotomayor, a person at high risk who sits next to a co-worker who refused to wear a mask, and also has to do her job. It`s not like a sports game she could not attend. Also, COVID is an occupational hazard for millions of Americans as the minority writes in their dissent, "It does not matter whether those hazards also exist beyond the workplace walls."

Now Justice Gorsuch`s deeply obnoxious behavior here is just one of the many facets of this extremely right-wing 6-3 court which will be making some of the most important decisions probably since at least Bush v Gore this year.


And we have a great conversation about all that on my podcast this week. It is a very special crossover episode with Why Is This Happening? and the great court-watching podcast Strict Scrutiny co-hosted by my wife Kate Shaw, Melissa Murray, and Leah Litman. Check it out.


HAYES: While the January says committee was issuing subpoenas to four more of Trump`s associates who tried to help them overturn the results of the last election, the Senate move forward on efforts to protect the next election by starting debate on voting rights.

None of the Senate Republicans support legislation and at least two Democrats are unwilling to break the filibuster or change its rules to get voting rights passed. So, just hours ago, the leader of the Senate promised to find another way around the impasse.


SEN. CHUCK SCHUMER (D-NY): If the Senate cannot protect the right to vote, which is the cornerstone of our democracy, then the Senate rules must be reformed, must be reformed. If the Republicans block cloture on the legislation before us, I will put forward a proposal to change the rules to allow for a talking filibuster on this legislation.


HAYES: Tonight, as senators continue to debate at the Capitol, I`m joined by Senator Tim Kaine of Virginia who just finished his own speech in defense of voting rights on the Senate floor. Senator, what is happening right now? I`ve lost -- I`ve lost the thread a little bit. Explain where we are.


SEN. TIM KAINE (D-VA): Well, listen, Chris, it`s great to be with you. We have two fantastic voting rights bills to protect people`s voting rights and to restore the Voting Rights Act of 1965. And the good news is that we have all 50 Senate Democrats as strong supporters of both bills. They`ve been rolled into one. The bill is now pending on the Senate Floor, the first debate we`ve been able to have on the floor in voting rights during the entire time I`ve been in the Senate.

But 50 votes, without some thought about a rules reform, will not be enough to pass it because the Senate filibuster has evolved into this thing where if you don`t have 60 votes, you can`t get legislation passed. As you know, we have two Democrats who say they won`t change the filibuster rule, so I`ve worked with people like Amy Klobuchar, Jeff Merkley, Chuck Schumer, and others, and we`ve come up with a proposal that you do not need to abolish the filibuster, reform it. You just need to restore it to what it was during most of Senate history.

And here`s what it is, you`re on a bill and we`re on a bill now. You just keep debating until debate is over. Nobody stands up to speak or everybody`s spoken twice under Senate Rule 19, and at that point is by simple majority. And we`ve got a majority with the Vice President breaking the tie. So, we`re not going to propose to change the cloture rule how to terminate debate. We`re not going to do any of that. Joe Manchin and Kirsten Sinema say they don`t want to abolish the filibuster.

The only thing we`re going to try to do is switch the filibuster from a secret, closed, clandestine filibuster into a talking public filibuster. That will be the vote tomorrow. If Joe and Kyrsten want -- like the filibuster, we`ll just ask them that vote that it should be public rather than private. We`ll say to the Republicans who liked the filibuster vote that it should be public rather than private. And we`ll see where they end up.

But if we could get it to be a public filibuster, then we`ll just debate the bill until the debate winds down. And at that point, it`s a simple majority vote, and all the Democrats who have co-sponsored the bills will vote for it, and we`ll be able to get it passed with the Vice President.

HAYES: You know, Joe Manchin, I think in the past has said he favors some kind of change to make a talking filibuster, though I`m not sure he wants to go along with this particular modification. I do want to play you something he said today which strikes me as the sort of heart of this, which is how higher the stakes here, right?

I mean, part of this we get caught in the rules reform because that`s the thing, you know, blocking it. But what are we talking about here? How big a deal is this? How important is this? And he was asked a good question about the possibility of disenfranchisement or people not being able to vote. And here`s his response. I want you to take a listen.


UNIDENTIFIED MALE: There are a lot of people out there who are saying that you`re making it so that they`re not going to be able to vote in the next election.

SEN. JOE MANCHIN (D-WV): The law is there, the rules are there, and basically the government. The government will stand behind them and make sure they have a right to vote. We have that. The things they`re talking about now are in court. Marc Elias has an awful lot in court. The courts have struck down, like in Ohio, they struck down the gerrymandering. Things are happening, OK. We act like that we`re going to obstruct people from voting. That`s not going to happen.


HAYES: What do you think about that?

KAINE: Well, Chris, you know, Joe and I are longtime friends. We were governors together. I had been in numerous meetings with Joe where his colleagues who are close friends, John Tester, have looked him in the eye and say, you may not be worried in West Virginia, but in Montana, there are erecting discriminatory voter ID requirements that make it harder for younger people and members of Indian tribes to vote, tribal nations to vote. That`s going to hurt me.

Raphael Warnock says, Joe, in Georgia, they`re hurting the ability of our folks to vote. I`ve had numerous colleagues tell him to his face, I don`t know about West Virginia, but let me tell you about my state. And so I`m puzzled when I hear Joe say, he`s not worried about disenfranchisement when his own colleagues who were his friends tell him, you know, this is the difference between not only whether I win or lose, but whether it`s even, you know, worthwhile to even run.

So, you know, this is a clear and present danger that -- I get it when Trump and the GOP members try to say, oh, there`s nothing going on here. Ignore the man behind the curtain. I`m troubled when Joe is in the room with his colleagues who are telling this as problems for them, and he`s acting like, there aren`t any problems out there.

HAYES: Yes, I mean, I think we should note just a little context here. A lot of the rules that are being changed in states like Georgia formerly would have to go through a national process, which was called the Voting Rights Act, particularly section five, which is essentially been gutted by the Supreme Court, which had a sort of -- I mean, I think, you can`t overemphasize the fact that we had solved the problem beforehand about how to deal with the fact that you want states to have some local control or municipalities have local control, but also some federal standards and to make sure it`s -- the system is not being blued, abused. We had that section. The Roberts Court struck it down. Republicans refused to reinstate it. And now we are here. Senator Tim Kaine of Virginia, thank you so much for your time tonight.

Chris, it`s going to be an important day tomorrow. I`m so excited about it. We will keep our eyes on it. That is all in on this Tuesday night. "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel. prior written permission of VIQ Media Transcription, Inc. You may not alter or remove any trademark, copyright or other notice from copies of the content.>