The Oregon lawmakers voted 59 to one on expelling Mike Nearman out of the Oregon Legislature after being caught on surveillance video opening the door of the capitol to let in a mob last December. Prosecutors in the Trump Justice Department subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides, and family members. Rep. Ilhan Omar calls for justice for the victims of war crimes. Two militia members seen alongside Roger Stone now charged in the January 6th insurrection.
JOY REID, MSNBC HOST: "ALL IN WITH CHRIS HAYES" starts tick, tick, in like 10 seconds, now.
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CHRIS HAYES, MSNBC HOST (voice-over): Tonight on ALL IN.
DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: They`re going to investigate Adam Schiff for leaking that information. He should not be leaking information out of Intelligence. They ought to investigate Adam Schiff.
HAYES: Abuse of power on a scale we may not have seen before.
UNIDENTIFIED MALE: This is the type of stuff that Vladimir Putin does to Alexei Navalny.
HAYES: Donald Trump`s DOJ is caught spying on political opponents. Tonight, what we`re learning one day later and the urgent need to hold all the former president`s men accountable with one of Trumps targets Congressman Eric Swalwell.
Then as Merrick Garland vows to defend voting rights, is his Justice Department ready to clean house.
And what we know about the conspiracy charges for militia members seen with Roger Stone one day before the insurrection, when ALL IN starts right now.
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HAYES (on camera): Good evening from New York. I`m Chris Hayes. All right, what do you do with a person who abuses their position of authority? An elemental question the history of human government and human affairs, a question our country has been confronting persistently since long before Donald Trump, but even more insistently during his presidency and its aftermath.
Today, as we digest new revelations about the scope of the abuse of power that occurred under the former president, we are also seeing an answer to that very question, and it comes from Republicans. Not the ones in the Nation`s Capitol, not the ones associated with the exiled chieftain of Mar- a-Lago, but rather it comes from a Republican Party in the state of Oregon.
State lawmakers there confronted the same question that we are now confronting as a society, the same one that Democrats and Republicans alike confronted at the Nation`s Capitol on January 6, how to deal with a person who has egregiously abused their power, a person who has transgressed.
In this case, it was one of their own, Republican State Representative Mike Nearman who was caught on surveillance video opening the door of the capitol to let in a mob last December. That mob, which was allegedly upset about Coronavirus restrictions in the state, then managed to overcome officers and invade the building. Some of them carried guns and bear spray and called for the arrest of Governor Kate Brown.
And then another video emerged from just a few days before the mob reached the Capitol showing Mike Nearman explaining how he would let protesters in the building.
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MIKE NEARMAN, REPUBLICAN STATE REPRESENTATIVE, OREGON: I`m talking about setting up Operation Hall Pass, which I don`t know anything about. And if you accused me of knowing something about it, I`ll deny it. But there would be some person`s cell phone which might be 971 (BLEEP). But that is just random numbers that I screwed up. That`s not anybody`s actual cell phone.
And if you say I`m at the West entrance during the session and text to that number there, that somebody might exit that door while you`re standing there. I don`t know anything about that. I don`t have anything to do with that. And if I did, I wouldn`t say that I did.
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HAYES: Yesterday, Mike Nearman faced a vote on expelling him from the Oregon legislature. I have to say, given the politics of the Republican Party right now, I didn`t know which way the vote was going to go. Just ahead of the vote, Nearman defended himself doing his best Tucker Carlson impression.
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NEARMAN: You`re considering expelling a member for the first time in history because he thinks that people should have access to their capitol, especially during session. After this session, we`re all going to go out to dinner or stop at the grocery store, or maybe tomorrow we`ll shop and buy clothes or get our oil change, because all these places are open, but not this building.
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HAYES: Oh, you`re persecuting me because I just want people to be in the Capitol. That ridiculous excuse didn`t work. The resolution to expel him past 59 to one with only Nearman voting to save himself. He was formally expelled from the Oregon legislature. And that is an example of tangible accountability for a wild transgression.
And I bring you this story tonight because it`s noteworthy and newsworthy, but also because, boy, is it rare. You probably have to go all the way back to Richard Nixon to find another U.S. president who abused his authority at the scope and scale of Donald Trump. And Richard Nixon actually did face some accountability. He was forced to resign from office after the House Judiciary Committee adopted three articles of impeachment against him.
And even though President Gerald Ford pardoned him in a wildly unpopular move, many people in Richard Nixon`s orbit were held accountable for their actions. All of these people were prosecuted and served time in the wake of the Watergate scandal. Look at that. The list includes the Watergate burglars, Nixon`s White House Counsel and personal attorney, his chief of staff, even his attorney general, John Michell.
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UNIDENTIFIED MALE: Given the circumstances, Mitchell was in a relatively good mood as he arrived at the prison. All Mitchell said was It`s nice to be back in Alabama. He is assured of staying in Alabama at least 20 months. That`s how long it will be before he`s eligible for parole from his sentence, so from two and a half to eight years.
During the time he is here, in this minimum security prison, officials say Mitchell will be treated the same as any other prisoner. So, John Michell, former U.S. Attorney General, is wearing prison clothes now.
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HAYES: Now, the reckoning and the accountability didn`t stop there, OK. Across the nation, from legislators in Congress, to the media, to regular everyday citizen, the Civic spirit of the time was that what happened in the Nixon presidency was so horrifying and aberrant it must be a symptom of a broken system. And that system had reformed and fixed let it happen again, and so, an incredible wave of reform again.
There was the Church Committee led by Democratic Senator Frank Church of Idaho that looked into the secret of doings, CIA, NSA, and FBI and found the agencies were spying on Americans and running roughshod over the law all over the world and at home.
In 1974, we saw the birth of modern campaign finance reforms after so much the Watergate scandal involved what were essentially slush funds from shady donors being moved back and forth. In 1978, President Jimmy Carter signed a new law limiting electronic surveillance, the Foreign Intelligence Surveillance Act, FISA, you`ve probably heard about that.
All of this, the entire structure of regulation oversight for all this was erected to make sure we could not have another Richard Nixon. And in the wake of more revelations about the Trump presidency, it`s hard to say it`s held firm. We clearly need another round of reform. We need more accountability for those who`ve done wrong, those who have transgressed and have abused their authority. And we also need to protect our government against future would-be Donald Trump`s including this Donald Trump.
That`s what the Boston Globe editorial board is calling for this week in a new six-part series about preserving our democracy called Future Proofing the Presidency. It makes a really strong case the importance of indicting and prosecuting Donald Trump for his conduct in office arguing that allowing him to go unpunished could send a far more dangerous precedent than having Trump stand trial.
To reform the presidencies so that the last four years are never repeated, the country must go beyond passing laws. It must make clear through its actions, no person, not even the president is above them. This comes in the wake of the New York Times report yesterday revealing the prosecutors in the Trump Justice Department subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides, and family members. One was a minor.
All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those Representative Adam Schiff, and Represented Eric Swalwell of California, who said in an interview Thursday night he had also been notified his data had been subpoenaed. We know the Trump DOJ also secretly seized phone records of reporters at the New York Times, CNN, and The Washington Post, imposed a gag order on CNN and The Times.
When you put all this together, Adam Schiff, Eric Swalwell, Intel Committee members, staffers presumably on the Democratic side, family members, a minor, The New York Times, CNN, The Washington Post, well, it reads like an enemies list, right? Richard Nixon notoriously also kept a list of enemies and use the government to spy on them.
Now, let`s be clear. The Trump administration, as far as we know from reporting we have so far, appears to have gone through the "proper channels," which is to say the DOJ issued legal subpoenas. He didn`t have like his henchmen breaking into their therapists office like, you know, Donald Trump did. We know how Donald Trump and the people that follow him behave, which is to say, even if they went through the proper channels, this is almost certainly exactly what it looks like.
And now, as we consider this revelation and the perilous state of American democracy, consider that there has been neither accountability nor reform for any of the characters in this drama. And for obvious reasons, it cannot stand. It cannot go on like this. The abuses were so great the threat to the country`s rule of law, the Democratic self-government is so severe that to let it go unrecognized and are reckoned with will bring some kind of cataclysm. It`s honestly just a question of when.
It is the job now of everyone in power, Democrats, Republicans alike, though I don`t have much faith, to get to the bottom of what happened in total to hold people to account across the various areas of wrongdoing and implement the reforms needed to make sure it does not happen again.
Congressman Eric Swalwell, Democratic of California investigated Donald Trump as a member of the House Intelligence Committee. He prosecuted him as an impeachment manager in Trump`s second impeachment trial. He says he`s one of the people whose records are secretly seized. And Congressman Swalwell joins me now.
It`s good to have you, Congressman. Maybe let`s just start on sort of the kind of facts of the matter here. What were you notified and by whom, when?
REP. ERIC SWALWELL (D-CA): Good evening, Chris. It was a random May 5 e- mail from Apple that I almost deleted, saying, you know, this is a customer service notice that your data was turned over. And I read it and at first, I really did think it was spam. But you know, the words Department of Justice leapt off the screen. And I, you know, talked with our House Intelligence staff, and of course, others had also received the same notice.
And we have since learned, as the New York Times reported, that there were a number of staffers and Congressman Schiff and I who were targeted. Look, this is not about Adam Schiff and myself. It`s about a president rewarding his friends corruptly through the Department of Justice, as he did with Michael Flynn and Roger Stone, and punishing his perceived enemies.
And my fear is that he may not have been successful this time in locking up his perceived enemies, but a more corrupt or Donald Trump in the White House again may not be as patient and may just skip the Department of Justice and its processes and just order his lieutenants to lock up his political opponents.
HAYES: Yes, I guess that`s the crux of it, right? I mean, when you hear this news and this sort of idea that well, it went through the proper channels, that you know, that`s both at some level, I guess, like there`s some check there, but also disturbing that there were people inside the Justice Department that went along with this operation.
SWALWELL: And that`s why I support Adam shifts call for an inspector general report, an investigation to understand not only was this Bill Barr, Jeff Sessions, and Matt Whittaker, you know, whoever was in charge at the time, but what rank and file prosecutors went along with this, and under what environment did they not think it was OK to resist having the communication records of a coequal branch of government surveilled?
Again, I`m not above the law, Adam shifts not above the law, but to me knowing -- certainly I`ve never leaked classified information, and there was no reason to believe that I would have, to do this it seems punitive but it seems as a part of a pattern of Donald Trump abusing the department of -- Department of Justice to go after his enemies.
HAYES: There is -- appears there going to be an inspector general report. But I want to read you this response that Senator Brian Schatz of Hawaii had yesterday. He said this. I hesitate to tell the other chamber how to conduct its business. But since we are in a 50-50 Senate and can`t issue subpoenas without Republicans, I respectfully ask the House to not call for investigations to the executive branch, but rather do it themselves. What do you think of that?
SWALWELL: Well, I like Senator Schatz and I don`t think he`s off there. I think, let`s see where the department -- how serious the Department of Justice takes this. And I know that Chairman Schiff and Chairman Nadler and the Speaker will be talking about what we can do. We`re not helpless anymore, certainly not in the House of Representatives. And I think we`ve shown through two impeachments a willingness to hold Donald Trump accountable.
Again, I just want the public to recognize this is not a 500-year flood that Donald Trump thinks he`s going to be reinstated in August. He`s running for reelection in 2024. You have a number of wannabe Donald Trumps who are just as corrupt and probably more competent. And so, if we don`t take steps to make sure this doesn`t happen again, we could really see the erosion, the complete erosion of the rule of law in our country.
HAYES: You know, there`s also an incredible irony here, and I think an important one, and it harkens back to what I was saying in that-- in that monologue about rebalancing power, right, which was a huge part of what that Nixon -- post-Nixon era looked like. There was this sort of moving power back towards Congress from the executive.
But there`s an incredible irony here which is that having already secretly subpoenaed members of Congress and their staffs and acquiring their data, when the House subpoenaed the white -- Donald Trump and people in his orbit, they basically successfully stalled for years in court, essentially got the Supreme Court to more or less ratify a kind of gutting of that House subpoena power while the executive was able to just go in and get the phone record from Apple.
SWALWELL: That`s a great point, Chris. They put themselves as a coequal branch on higher ground than us and they stymied our investigation into Don McGahn with the Russia report.
SWALWELL: As we are seeing with other investigations, we`re still waiting for Supreme Court rulings. And also, you know, Donald Trump, as he was projecting against Adam Schiff calling him a leaker, it was actually we learned in the Don McGahn transcripts, it was Don McGahn with respect to the Russia investigation who was leaking. And while this was a national security investigation, the real national security concerns were what was Michael Flynn talking about with the Russians and what was Donald Trump doing with himself and his family with the Russians.
I will defend to the day that I die the investigation that we did on Russia that showed that Donald Trump plan for, benefited from, and received help from the Russians. And his response to that, as I said, it was punitive, it was retaliatory, and I don`t think it`s going to stand the constitutional and legal scrutiny that better come upon it soon.
HAYES: All right, Congressman Eric Swalwell, have a great weekend. Thanks for making time for us.
SWALWELL: My pleasure. Thanks, Chris.
HAYES: Bina Venkataraman is the editorial page editor for The Boston Globe which this week published the editorial board series titled Future Proofing the Presidency, that says, "There`s only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice of our most abandoned two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office."
Nick Akerman served as an Assistant Special Watergate prosecutor where he specifically investigated President Nixon`s abuse of federal agencies to go after people on his enemies list. And both join me now.
Bina, let me start with you. I really liked what you guys are doing. I like -- I like the sort of clarity of the call here. Why did you take this project on? Why are you writing this? And why do you think it`s important?
BINA VENKATARAMAN, EDITORIAL PAGE EDITOR, THE BOSTON GLOBE: Well, look, Chris, as it stands right now, to paraphrase a certain Hollywood Access video, the message to the American public is, if you`re a president, when you`re a president, they`ll let you do it. And by it, I mean, break the law, abuse the power of the presidency to enrich yourself and your family, obstruct investigations into foreign interference in U.S. elections, subvert democracy by undermining the results of legitimate election, insight an insurrection in the U.S. Capitol.
It`s essentially a permission slip as it stands because there has been no accountability. There`s been no reform that addresses what Donald Trump did in office and really the weaknesses he exposed and the foundation of our democracy and the Constitution in that system of checks and balances. The fact that impeachment did not prove itself to be a powerful enough tool for a truly shameless president and a politicized Republican Party willing to protect him in the Senate and failing to remove him.
So, the question before the country right now that we wanted to address in this series, the question we wanted to put before the country is, are we going to learn the hard truths of the Trump presidency and make the needed reforms? Is Congress going to make the needed reforms? Is the DOJ going to bring charges against Donald Trump and prosecute him for the egregious abuses of power for the laws he broke while in the Oval Office, or are we going to leave our democracy vulnerable to would be dictators?
HAYES: Yes, I think that`s precisely the question. I mean, I think that the sort of answer to that comes from a variety of different corners of American institutional landscape. Nick, you -- I mean, you live this and I did not. And I have read a lot about it and like reading a lot about it. And, you know, my first thought was like, wow, this does really feel Nixonian, right? This is what the adjective was made for as we learn about this.
What was -- put in context what you were studying back then and what your reaction to learning about what the Justice Department is up to here is?
NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Well, this just seemed like, Chris, a repeat of history. This all started, I mean, basically, with an obsession by Richard Nixon of leaks that were going on, just like with Donald Trump leaks about Michael Flynn and about his national security adviser, and what was going on with the Comey. It all started the same way, Richard Nixon was obsessed with Daniel Ellsberg.
And this led to them actually taking action in investigations that morphed into really going after their enemies and trying to put together what was supposed to be a legitimate investigation turned into essentially a political hunt to try and find dirt on their opponents.
And that`s what Richard Nixon wound up doing. He used the IRS to do that. He used other federal agencies. There were some bureaucrats that were able to stand up to him and didn`t do what he said much like McGahn who basically told Trump, look, you know, no, don`t do it. I`ll take care of it, but he never did anything.
And -- but there were people who did it. Obviously, here there were subpoena that was served. There was information that was gathered. And it`s pretty clear that his attorney general, after Sessions, the first Attorney General, decided not to do anything with this, that Trump prevailed on Barr to resurrect this investigation and to continue to get information from Apple about two congressmen that Trump clearly had a vendetta against. So, there really does have to be accountability here.
HAYES: Bina, you know, to Nick`s point here, I mean, Nixon used a bunch of federal agencies. I mean, he`s pulling people`s taxes at the IRS. And one of the things that comes out of that in the Church Committee is a sort of like scale of the kind of deep, you know, the secret state and the surveillance state and all the ways that it can get into Americans lives.
And here, it seems like the point of the spear here really seems to me the Justice Department. Like, the thing that we`re -- the thing we`re flirting dangerously with is a president who says, day one of the Attorney General, like go prosecute all those people. Go put my political enemies in jail. It didn`t quite happen, but that`s the red line that we have edged very close towards.
VENKATARAMAN: Well, quite a few red lines. I would say, certainly that -- certainly the abuse of the pardon power to reward loyalists like Paul Manafort, his campaign chair who obviously didn`t cooperate to federal prosecutors, lied to federal prosecutors, also abusing the power of the presidency to enrich himself and his family. Well, that wasn`t necessarily in of itself an existential threat to democracy.
The nepotism involved in that presidency and the lack of checks it exposed, it just deeply exposed problems with the norms that we have, and even the existing laws that we have as checks on the presidency when we`re not willing to enforce those norms, were not willing to enforce those laws. And I think the lesson of the Church Committee ought to be adopted here, which is to say that Congress ought to look systematically, and this is what the Globe editorial board series lays out, at all of the different ways that law -- existing laws need to be shored up, new laws need to be articulated, and particularly accountability needs to be delivered through the justice system for Donald Trump and perhaps more of his colleagues.
HAYES: Bina Venkataraman and Nick Akerman, thank you both so much. That was great.
AKERMAN: Thank you.
HAYES: Whatever we do about the crimes of Trump while he was in office, there`s still an ongoing situation at the Department of Justice, like every day. Who knows how many people still working there were involved in this corrupt leak investigation? So what needs to be done to clean house? Next.
HAYES: The bombshell story about the Trump Justice Department`s investigations into Democratic representatives and staffers, has already triggered blowback for both inside and outside that department. Less than 24 hours after the story was first reported, the DOJ Office of the Inspector General announced it will review the matter, while Senate Majority Leader Chuck Schumer and Judiciary Committee Chairman Dick Durbin threatened to subpoena former Attorneys General William Barr and Jeff Sessions to testify before Congress about the investigations.
The thing is, according to New York Times, at least for DOJ officials who were involved in briefings about the hunt or leakers are still at Justice Department. Something that is not lost on one of the targets of this whole thing, Congressman Adam Schiff.
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REP. ADAM SCHIFF (D-CA): I think that the Attorney General has an obligation to clean house to essentially understand exactly what the department was doing over the last four years. Make sure that there`s accountability for those that were engaged in political and partisan investigations within the department.
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HAYES: And in an opinion piece for The Washington Post, former federal prosecutor Paul Butler argues the best way for Attorney General Merrick Garland to protect Justice Department is to stop defending his predecessor.
Well, he`s now a professor of law at Georgetown University Law Center, and he joins me now. Take us through your argument, Paul.
PAUL BUTLER, FORMER FEDERAL PROSECUTOR: So, Chris, here, there`s two major issues. The first is, why Sessions and Barr, the Justice Department went after Trump`s political enemies? Was there a legal predicate for them to seek this very personal data about Congresspeople, their staff, their families? And in that famous exchange when then-Senator Harris asked Attorney General Barr if Trump had ever directed him to investigate somebody, first answer, the answer any prosecutor with integrity should have been hell no, because I would have quit.
Instead, Barr hemmed and hawed and went all the way, well, what do you mean by this word and that word. That was revealing. It raised the distinct possibility that Barr was willing to weaponize the Department of Justice to go after Trump`s political enemies. And that`s where we are now. So, Chris, the other major issue is what the Biden Justice Department is going to do about this.
So far, we see this pattern of protecting the Trump Justice Department, but that`s starting to look more and more the same as protecting corruption.
HAYES: So, that`s it. This is the sort of institutionalist paradox that I think Garland finds himself in, right, which is some of the norms eroded by the Department of Justice -- I think two of them were the independence department, right, sort of taking orders from the White House directly, A. And B, you know, abandoning continuity in how the Department did its business, continuity in the positions it took and the cases it took, right?
So, you come in and you think, well, we want to restore those norms, so we`re going to be independent and not let the White House tell us what to do and we`re going to go back to more continuity. So, we`re going to take the same position with the Trump Justice Department on E. Jean Carroll lawsuit, etcetera. But that itself is the problem, it seems to me.
BUTLER: That`s exactly right. Chris, I`m a proud alumnus of the Department of Justice, and I respect the Attorney General`s institutional commitment. But when Biden was running, he said that the Trump administration was the most corrupt in modern history. And Biden`s Justice Department has not responded by fighting for transparency and accountability.
And I understand Merrick Garland`s wish to look forward not backward, not to substitute Trump`s lock her up with Biden`s lock him up. But looking backwards -- not looking backwards, that`s a dangerous approach that people are allowed to subvert the constitution with no consequences.
HAYES: Yes, that`s very well -- very well said. And I think there`s -- this is going to -- I think it`s going to come to a head. I mean, there`s going to be some choices that have to be made as we go forward here, and there`s going to be a lot riding on those choices that are made by the Attorney General.
Paul Butler, as always, great to talk to you. Thank you.
PAUL BUTLER, PROFESSOR IN LAW, GEORGETOWN UNIVERSITY LAW CENTER: Thank you.
HAYES: All right, there`s still so much we don`t know about who is targeted by Trump`s Justice Department, who knew what about it. That`s next.
HAYES: It`s been nearly 24 hours since we got this report about Trump`s abuse of the Justice Department, there`s still a lot we don`t know. Just listen to these two excerpts from the article, OK.
In 2017 and 2018, a grand jury subpoenaed Apple and another internet service provider for the records of the people associated with the Intelligence Committee. They learned about most of the subpoenas last month when Apple informed them the records have been shared. It was not clear why family members or children were involved, but the investigators could have stopped the accounts because they were linked or on the theory that parents were using their children`s phones or computers to hide contacts with journalists.
So, exactly how many Democratic records were secretly seized? Why were their families and children drawn into this?
Also, another question, were any of the Republicans investigated? Was this an explicit request from President Trump crucially? And at a higher level, what does all this mean for the Justice Department going forward?
Betsy Woodruff Swan, a national correspondent for Politico and just published an article in which former Attorney General William Barr denied knowing anything. Saying he didn`t recall getting briefed on the moves, and she joins me now.
Betsy, there has been a lot of -- well CYA spinning from William Barr and Jeff Sessions, which suggests to me that they at least understand this doesn`t look great.
BETSY WOODRUFF SWAN, NATIONAL CORRESPONDENT, POLITICO: You know, you`re dealing with a big mess when Barr and Sessions don`t want to touch it. Barr, of course, famously has no shrinking violet whatsoever when it came to defending some of the most controversial moves that the Trump White House and the Trump DOJ made. That just about everyone else agreed we`re dramatically encroaching on the Justice Department`s independence.
If Barr doesn`t want to defend something that the DOJ did, that means you got a problem.
Now, he narrowly was speaking about this issue subpoenaing to lawmaker`s records. What he didn`t speak about more broadly was the wider topic of leak probes.
One thing that`s important to remember when the question comes up of whether or not the president asked for these investigations, is that, well, we don`t know what he asked for privately. We do know that he did ask for them, because he tweeted about them ceaselessly.
If you just look back through the president`s public Twitter account, which sometimes --
SWAN: I think sometimes we tweet -- he tweets, like their performance art, or like somehow it didn`t matter. Everyone was reading them --
HAYES: No, their instruction.
SWAN: -- Senior DOJ officials were reading them and scratching their heads and thinking things, like, why is the president tweeting a picture of me behind prison bars. And the President explicitly tweeted that Schiff needed to be investigated for leaking.
SWAN: He explicitly said that Schiff was illegally leaking classified material.
So, that question has actually been answered. Trump wanted these investigations to happen. The only question is, which of the tippy top people at DOJ, which of the top political officials got this request and said, no problem, feel free to scoop up as much Schiff and Swalwell metadata as you think you need?
HAYES: That is such a great point. Just to pause and emphasize that for a second, did Trump requested is asked and answered, all the time, constantly in public. Constantly, constantly, constantly. Like, that is not -- yes, you`re right, that`s a great point and it`s not theoretical.
Then the question becomes -- I mean, there`s a few things, right? So, who - - you know, there`s a great Mary McCord quote, who`s Georgetown Law professor, but she was the acting head of DOJ`s National Security Division until May 2017, who says under department practice, any investigation into an elected official would have been considered a sensitive matter that would have required high-level approval.
Now, whether this was an investigation into an elected official or an elected officials metadata or it was just scooped up in it might sort of, you know, that might matter for who is getting briefed.
But you got to imagine, this is getting run up the chain at the point where you`re going to Apple and they`re handing you metadata from the ranking member of the House Intelligence Committee.
SWAN: The laws of physics did not preclude that it got run up the chain. But if it didn`t get run up the chain, I would be flabbergasted. This is exactly the kind of thing that very senior DOJ officials have jobs to deal with.
Now, the most plausible defense that Sessions` allies could make would be that if this particular leak probe involves the Russia investigation of Russia`s then-ambassador to the United States, it`s possible that Sessions could have been recused, if that`s the case.
And again, hypothetical, we`re spitballing here if you don`t know, if that`s the case to the next person who would have signed off on it would be Rod Rosenstein who was the deputy attorney general who also was a Trump appointee. And who sort of went from being something like a resistance celebrity to toward the end of his time there really drawing substantial and sustained criticism from many folks, particularly congressional Democrats who felt that he was a significant disappointment.
HAYES: Final point and quickly here, though, is that to me, the Barr aspect of this. I mean, the president clearly blows up about these leaks early on. DOJ does a bunch of stuff in 2017. It`s the reporting the times it indicates that Barr came in, that he threw half a dozen attorneys at this, that they restarted all this, and for him to be like, well, I don`t really recall now, like, there`s some tension there. The reporting the times as indicates that like he was driving this.
SWAN: There`s absolutely tension there. The most charitable explanation is that there were so many open high-profile leak probes that perhaps in addition to the leak probes that hoovered up Schiff and Swalwell`s material, there could have been other ones that additionally Barr would have been much more in the leads on.
When it comes to specificity, we don`t have the specific details on that. But the reality of course, is the Barr was very enthusiastic about leak probes, as were other Trump senior DOJ officials.
HAYES: Yes, they lost track of all the people in the enemies list whose data they were trying to hoover up.
Betsy Woodruff Swan, thanks so much for coming out tonight.
SWAN: Thanks, Chris.
HAYES: Still ahead, two militia members seen alongside Roger Stone now charged in the January 6th insurrection. So, what`s Roger Stone up to? That`s coming up.
HAYES: All right, earlier this week, there is this moment in a hearing, congressional hearing that hardly got any attention, these happen all the time. Most hearing moments get no attention, right?
Secretary of State Tony Blinken was appearing virtually before the House Foreign Affairs Committee and he was asked this question by Democratic Congresswoman Ilhan Omar of Minnesota.
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REP. ILHAN OMAR (D-MN): I know you oppose the courts investigation in both Palestine and in Afghanistan. I haven`t seen any evidence in either cases that domestic courts can -- both can and will prosecute alleged war crimes and crimes against humanity.
And I would emphasize that in Israel and Palestine, this includes crimes committed by both Israeli security forces in Hamas. In Afghanistan, it includes crimes committed by the Afghan national government and the Taliban.
So, in both of these cases, if domestic courts can`t or won`t pursue justice, and we oppose the ICC, where do we think the victims of the supposed crimes can go for justice?
(END VIDEO CLIP)
HAYES: All right, just to be clear here, right. The Congresswoman was asking Secretary Blinken, where he thinks victims of alleged war crimes and crimes against humanity can go for justice if local courts say Israeli courts or Afghanistan courts will not look into these cases and if the U.S. opposes the International Criminal Court or ICC from investigating these alleged crimes when it comes to Afghanistan and the Israeli Palestinian conflict.
She was referencing the fact that there are active International Criminal Court investigations of all the entities she named.
Back in March, the ICC opened an investigation into alleged Israeli war crimes and Palestinian territories. The increase expected to investigate alleged crimes committed by Israelis and also Palestinians. It will look at whether rocket fire by Hamas and other groups from Gaza amount to war crimes.
Last year, the ICC ruled its chief prosecutor can open investigation into allegations of war crimes in Afghanistan since 2003. By all sides in the conflict, including the Taliban and U.S. lead forces.
Now, that`s all factual, right? That this is a factual recitation of the things happening in the International Criminal Court.
The implication of course of the question is, how do we move to a system in which there is actually in a global sense equal justice under the law? That is not just ruled by the powerful who will of course not investigate their own governments crimes, but some kind of investigatory body that investigates the crimes with no fear or favor of powerful and less powerful countries alike. That`s the point she`s making, based on the facts before the ICC.
Then the Congresswoman tweeted out her exchange with Secretary of State Blinken adding this, "We have seen unthinkable atrocities committed by the U.S., Hamas, Israel, Afghanistan and the Taliban." And that`s when things blew up.
Yesterday, a dozen of her Democratic colleagues in the House issued a statement calling on the Congresswoman to "Clarify her words placing the U.S. and Israel in the same category as Hamas and the Taliban." To which Representative Omar responded "To be clear, I was no way equating terrorist organizations with democratic countries with well-established judicial systems."
Afterward, House leadership, including Speaker Nancy Pelosi issued a statement welcoming the clarification by Congresswoman Omar, but also warning her that "Drawing false equivalencies between democracies like the U.S. and Israel and groups that engage in terrorism like Hamas and the Taliban foments prejudice and undermines progress toward a future of peace and security for all."
Sometimes when you tell the truth, you reveal something your audience is not ready to hear. So, if you have a problem with the grouping of these entities together, and I understand why you would, you should turn your ire towards whatever it is the U.S. has done to put us in that category and not on Congresswoman Ilhan Omar for pointing it out.
HAYES: Roger Stone, Donald Trump`s longtime confidant advisor and bagman has gone a little under the radar as of late, which seems like a mistake for someone with a reputation as a self-proclaimed dirty trickster.
Remember, Stone was convicted of impeding a congressional inquiry that threatened Donald Trump, misleading Congress, right? His sentence was later commuted. Then, last year, he was given a full pardon by Donald Trump.
Since then, he seems to spend a lot of time with right-wing militia groups. On the morning of January 6th, for example, he was seen in Washington D.C. flanked by members of the Oath Keepers a far-right antigovernment militia. They were serving as Stone`s body guards before some of them would storm the Capitol during the insurrection.
Members of the Oath Keepers were eventually indicted and government charging papers alleged some of the men were seen guarding Trump confidant Roger Stone on January 5th and 6th.
So, that`s who Roger Stone was hanging out with the day of the attack. The day before on the eve of the attack, he was part of a rally in front of the Supreme Court where he spoke alongside men connected with another militia and an antigovernment group called the Three Percenters.
(BEGIN VIDEO CLIP)
ALAN HOSTETTER, FORMER POLICE CHIEF INDICTED IN A CONSPIRACY TO ATTACK THE CAPITOL: We are at war in this country. We are at war tomorrow. A million- strong patriots going to be standing right there. They`re going to hear our voices. They are going to hear the rage of the American people over what they have done to us and this country. They need to know, we as a people, a hundred million strong are coming them if they do the wrong thing.
(END VIDEO CLIP)
HAYES: That man was railing about the war that was going to happen on January 6th, and another spoke out for him alongside Roger Stone. They were part of a group of self-described militia members arrested and charged yesterday with conspiracy in the January 6th attacks. They face charges including conspiring to obstruct an official proceeding which carries a 20- year maximum sentence.
Ryan Reilly is a senior justice reporter for HuffPost and today, wrote this story in a piece titled: Traitors need to be executed: stop the steal organizer indicted in January 6th conspiracy case.
Ryan, let`s just start with these individuals and the indictments against them. Who they are, what the indictments say.
RYAN REILLY, SENIOR JUSTICE REPORTER, HUFFPOST: Sure, so this is all a group sort of based out of Orange County. And I think there`s sort of two separate cells, there`s a one sort of cell around the Beverly Hills area that I think will be forthcoming. And then there`s this sort of cell around Orange County that has been basically, you know, affiliated with the Three Percenters and sort of had all decided to go over to D.C. on January 6th. And they are essentially organized by this main guy, this former police chief who was sort of this major figure in Orange County and was organizing a lot of rallies, pro-Trump rallies, anti-lockdown rallies and sort of had a really big following there.
And just over the months, had really expressed in pretty stark terms, what he thought needed to happen on January 6th in really violent language. And it`s really, I mean, it`s the type of language that if a Black Lives Matter protester had said this at some major rally, there`ll be some repercussions for that and there would be some coverage of that.
But really, this kind of somewhat flew under the radar to a certain extent. And now you only see this, you know, we`re nearly six months out and we`re now just seeing charges against this individual.
Alan Hostetter is the name and I want to just play -- this is last November, this is him recording himself while driving, so the video is dark. But it`s worth listening just in terms of the kind of rhetoric that he was engaged in before storming the Capitol, take a listen.
(BEGIN VIDEO CLIP)
HOSTETTER: This charade is about to end. And I think we`re going to see some really positive things happen once the truth gets out there and people start going to prison.
And people even needed to be -- some people at the highest levels need to be made an example of with an execution or two or three.
(END VIDEO CLIP)
HAYES: An execution or two or three. I mean, I have been struck by how common that rhetoric was around these circles of folks, particularly in Three Percenters and the Oath Keepers that were involved in January 6th.
REILLY: Yes, you know, another rally -- another rally he organized or was speaking at in back in December. He talked about very specific terms. He talked about how, you know, they needed to go into the Capitol and grab people by the hair and drag them out and string them up by a lamppost.
I mean, this is really specific rhetoric that he`s talking about here. And it`s sort of astonishing, like, you know, I mean, this is a former police chief, right? This is someone with buy-in to this community. Who is well known in this community, who is spreading this sort of language.
But if you really follow the logic of this, it`s sort of not surprising if you honestly believe that the election was stolen, I kind of keep coming back to this point. If you honestly believe that the election was stolen, it sort of makes sense that this was a possible resolution to that, because that`s huge, it would be the largest crime in American history, right?
So, you`ve got to like, you know, there would be have to be some action as a response to that. You`d have to do something about it. You couldn`t just have these recounts in certain states. And you know, oh, let this play out in court. If the election was stolen, you have to do something about that. That`s kind of like very much in the American spirit and that`s why you see sort of this rhetoric because these people deeply actually believe that because they are being fed with these lies by conservative news outlets and by the President of the United States.
HAYES: So, Roger Stone, so Stone -- you know, Stone is one of these people. It`s like Steve Bannon got his pardon, Michael Flynn got his pardon, Roger Stone got his pardon. And Flynn is, you know, showing up an event saying, yes, we should have a military coup like Myanmar and Steve Bannon is pushing the big lies, the litmus test and kind of wonder what Roger Stone is up to.
And I particularly mean there`s -- I don`t want to engage in guilt by association. He did -- he`s not accused of committing a crime in the 5th or the 6th, being around people who would later commit crimes is itself not a crime.
But like doing that, he`s around a lot of militia guys who end up storming the Capitol. What was he up to those days, do we know?
REILLY: Yes, I mean, I don`t think that we`ve seen any evidence thus far. But I think he`s tied probably to three separate criminal conspiracies now in terms of the defendants. So, like, you know, like you said, he hasn`t been charged in any capacity, but he has certain connections to, you know, groups -- three different groups who`ve been charged at least.
So, I think that it`s really interesting to see what will come out in a lot of the discovery there and how -- you know, how closely they are in communication. Because the idea that you`re sort of going around and paddling around with all of these different groups that were then charged with storming the Capitol and who were preparing all of this and this military gear had no clue what was going on. It seems sort of ridiculous.
So, I think that we`re going to have to see what comes down the line. But I think also, it`s going to be a very high bar, because of the redactions of the First Amendment that we have in the United States that are obviously very important. Unless he was directly involved in some sort of planning. It`s a lot more difficult to make these charges.
It`s a lot easier when someone actually storms the Capitol and actually follows through if they`re just, you know, the incitement rhetoric is really the trick here. It`s the -- that`s more of the difficult, heavier lift than, you know, rightfully the more difficult argument to make in court rather than someone who follows through on the actions.
But what that means is essentially a lot of these more pawns in this so- called war are going to end up being charged as opposed to, you know, the king or the -- a lot of the leaders in this situation.
HAYES: Yes, that`s well said. Ryan Reilly, thanks for making time tonight. Thanks for all your great reporting.
That is ALL IN on this Friday night. "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel.