IE 11 is not supported. For an optimal experience visit our site on another browser.

Transcript: All In with Chris Hayes, December 1, 2020

Guests: Jed Shugerman, Kim Wehle, McKay Coppins, Bryan Stevenson, Alexis Madrigal


The Department of Justice is investigating a White House bribery for pardon scheme. President Trump has discussed with his advisers pardons for his three eldest children and Rudy Giuliani according to a "New York Times" report. Georgia Election official pleads with President Trump to stop fraud delusions. President Trump reportedly talks about pardons for his family while ramping up federal executions. CDC reports that COVID was in the U.S. before previously thought.


JOY REID, MSNBC HOST: Absolutely. And taking, as you said, major risks to do it, financial risk for themselves. Jemele Hill, always great to talk to you, my friend. Thank you very much. I appreciate you being here tonight.

And that is tonight's REIDOUT. "ALL IN WITH CHRIS HAYES" starts right now. Watch that.


CHRIS HAYES, MSNBC HOST (voice over): Tonight on ALL IN. Breaking news of a bribery for pardon investigation in the Trump White House. Tonight, what we know about what and who the Justice Department is investigating.

Then, the increasingly dangerous on the hinge reaction to Donald Trump's lost.

GABRIEL STERLING, VOTING IMPLEMENTATION MANAGER, GEORGIA: Someone is going to get hurt, someone is going to get shot, someone is going to get killed. And it's not right.

HAYES: Plus, Bryan Stevenson on the Trump administration's lame-duck rush to execute prisoners. And a closer look at the damage done by Dr. Scott Atlas.

SCOTT ATLAS, CORONAVIRUS ADVISER TO PRESIDENT TRUMP: It's actually good news that the virus spreads widely and without high risk to the vast majority of people. That means that we have a better chance of developing population immunity.

HAYES: When ALL IN the starts right now.


HAYES (on camera): Good evening from New York. I'm Chris Hayes. Some stunning breaking news tonight about a federal investigation into a bribery scheme in an effort to secure a presidential pardon. Court records unsealed in D.C. today, they are heavily redacted. We've been going over them. They reflect a sealed opinion made by a federal judge all the way back in August.

They appear to reveal an investigation, an active investigation that involved a possible offer by some redacted individual to "offer a substantial political contribution in exchange for a presidential pardon or reprieve of sentence."

Now, that news, this unsealed document, this unsealed ruling comes after the president pardoned his first national security adviser Michael Flynn who, of course, twice pleaded guilty to lying to the FBI and after reports in New York from the New York Times that Rudy Giuliani has been discussing with the president the possibility of receiving a preemptive pardon before Mr. Trump leaves office. And after Trump TV favorite Sean Hannity suggested the President might as well just pardon himself and members of his family before he leaves office.

The Revelation of this bribery for presidential pardons scheme points to a possibly enormous scandal one that no one, we should note, from the so-called Deep State leaks during the campaign. Notable. It also comes at a time when the President right now is sulking and unhinged and unshackled from any short-term electoral politics and reportedly intent on wielding his pardon power granted by the Constitution quite aggressively.

Jed Shugerman is a professor of law of Fordham University School of Law. Kim Wehle is a former Assistant U.S. Attorney, professor at University of Baltimore School of Law. She wrote a book, How To Read The Constitution And Why. And they both join me now.

All right, Jed, let me start with you just for -- let's talk about the document that we have. This is an unsealed document. What is this document? What am I reading when I'm reading this?

JED SHUGERMAN, PROFESSOR OF LAW, FORDHAM UNIVERSITY: Well, first of all, you're seeing a reference to an initial filing from August 28, I believe. Late August, there was interaction between the DOJ in finding that there was a series of warrants. And the judge here -- and keep in mind, this is Judge Beryl Howell, who was the supervising judge on Mueller's Russia investigation. It's not obvious there's a link here, but this is some background about who she is.

She said, I need more information about why this has to be kept under seal, even if redacted by November 25th. And then that leads the DOJ to file and then this is the judge's order here as an unsealing order, a partial unsealing order that rules on the DOJ is information and then reveals some information to the public, but then allows this investigation to keep going.

HAYES: So, this is -- I mean, there was - there's some question about whether this would be made public or not. And this is what we're getting about this.

Kim, my understanding is basically the government says, look, we have -- we think we've uncovered a scheme that appears to be a bribery for pardon scheme. It's got a few different people. And again, it's hard to kind of keep the pieces straight because of the redactions, but there's a few people involved.

But we also think that this -- we should be able to pursue this investigation, even if we run up against some attorney-client privilege, because this would seem to be an exception. Is that your understanding of a part of the argument here?

KIM WEHLE, FORMER ASSISTANT U.S. ATTORNEY: Well, looks like if you look at the caption, this was a subpoena for a search warrant. And it looks like they stumbled upon this information. So, essentially, there's a separate team of lawyers that looks at responses to subpoenas to make sure there's no privileged information in there.

HAYES: Right. And they're separate from national prosecutors. So, they were going through this and they said, wait a minute, look at these e-mails. We're now seeing this separate issue that we don't know, what is the basis for the original subpoena and what that original investigation is. But now they're saying, wait a minute here. Now we see two things, lobbying the White House for pardons and then potentially, secondly, this bribery scheme. We will give you money if you give us a pardon.

And essentially, in this moment, Judge Beryl Howell wanted to know whether she could release partially this memorandum of opinion, basically deciding this needs to be made public. And I think what the court found is there isn't even an exception to the attorney-client privilege here.

What she's ruling is that even if there were attorneys involved, these were not actual legal advice communications. Just because somebody's journey, it doesn't mean it's protected. We saw this with the Michael Cohen raids. And she basically said here, they're not operating as attorneys. They're operating as basically envoys for this potential scheme. And it looks like the DOJ wanted to separately investigate that, which is an offshoot of this other subpoena.

HAYES: Right. OK, so there's -- just so that I'm tracking this because again, this is difficult because the procedure here is a little complicated and the details are opaque because they're hurting by redactions. As best we can glean, right, there was some subpoena and some documents seized. There was a separate team from DOJ assigned to look over them to sort of protect attorney-client privilege. And they find evidence in emails that there's a group of people that are trying to get someone sprung essentially, from federal custody, it appears, if I understand the documents correctly, by essentially bribing their way to a pardon.

Then, the DOJ goes -- you know, it wants to sort of pursue investigating this. This gets sealed. That seal has now been taken off. We're learning about this now. In terms of like, what we know about the details here, Jed, like, what is -- what can we glean about what the scheme appears to be the Department of Justice apparently stumbled upon?

SHUGERMAN: Well, first of all, just to confirm what you're saying, the evidence that this is someone currently in custody, I think it's on page 16 of this document. They refer to someone being in the custody of BOP. That's the Bureau of Prisons. So, this is someone likely who is currently in within the prison system.

And the other -- and we see it -- keep in mind, this document also refers to 50 devices that have been seized. That's a lot of devices. And so, you know, even if people have multiple devices, that's a lot of people who seem to be involved in these communications.

The other thing I think we're gleaning is from these redactions. It's important to note that pages four through 11 of this document are entirely redacted. And there are a lot of redactions throughout. But one can start to see that the names involved here are relatively short, like four or five letters. You can imagine -- I think that someone who has a name of five letters, I think, occupies the White House right now.

So, it's -- but there's a lot of trying to piece together what these interactions were. But there are a lot of communications that are referred to someone having been a significant past political contributor, and that there was an understanding that there would be future political contributions in exchange for a pardon or clemency.

HAYES: Right. So this seems to be the main parts of what's sort of stipulated here or at least described, Kim, and this is, there's someone who's in the custody of the federal government, in BOP custody, which means they have been convicted probably of an offense. That person has several emissaries essentially making treaties to the White House saying they given money in the past, and they will give so again if you get a pardon.

And I guess my question to you is, that certainly sounds illegal. That is illegal, right? You can't do that, if that's exactly what happened.

WEHLE: Yes. That would be, you know, bribery under the federal United States Code. And it's important to keep in mind here, there is one human being on the planet that could be part of that transaction. That is the president who is the only person who can give pardons. So, that's what makes me curious.

HAYES: Right.

WEHLE: This is not some lower-level situation, potentially, where the President could say listen, I knew nothing about it. He's the only person under the Constitution who has that power. And recall, in this moment, we also have Michael Flynn who he's pardoned and another federal judge in D.C. that has a motion pending about what to do with that particular pardon and that reversal of his guilty plea or the attempt to withdraw that. It's almost like these judges are talking to each other about what is going on in these separate cases.

HAYES: Well, and that's why -- I mean, Jed, this gets to the pardon power, right, which is, you know, it's in the Constitution. The president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. If you go back and look at the deliberations of the Constitutional Convention, this was the source of some considerable controversy. It's one of the more absolute powers that's granted to the American president in the entire U.S. Constitution. The President has asserted its absolute.

Whether it is absolute actually is a little bit of a question, right. Like, if you pulled off the bribery scheme, let's say, and managed to bribe your way into a pardon, like, what does the law say about whether the pardon would stand?

SHUGERMAN: So, this is a great question. It's a relatively open question. First of all, let me just pick up exactly where Kim was, because the bribery statute says this is 18 USC 201, that it's an exchange of a thing of value for an official act. Just because someone has the power to do something doesn't mean they have the ability to legally sell it off. That's -- it's an official act. You can't. That's what bribery covers.

Now, I think the larger question you're asking also relates to self-pardons. So, there are a mix of arguments out there, some are better than others. One point -- I think the basic point is that even if one sells off a bribe -- a sells off a pardon, one can be convicted afterward. The other interesting thing is, you can pardon someone for past conduct, but not for future conduct. You can't draft a pardon and then pardon the future corruption in receiving that pardon. So, that's one other point.

The other thing that we've been looking at is the part of the Constitution under Article two that sets up presidential power. The President takes an oath to faithfully execute the office. And there -- another line of the Constitution says that the President shall "Take care that the laws be faithfully executed."

One argument is that the corrupt, even criminal exercise of a power is not faithful execution. It's faithless execution. And thus, if it's done as part of a bribery scheme, but those acts are illegal and invalid. So, there is a valid -- and let me just say, this is an uphill battle. There is, I think, an excessive legal culture that presumes that presidential power is absolute. I think that's incorrect.

But I still think that it's an uphill battle to make an argument given a very conservative bench that's now more conservative than it was just a month ago, that presidential power should be limited in the way that I've just argued here.

HAYES: Right. I mean, I guess the point here is that it seems like there's an intuitive consensus even among scholars, there has to be some limits to this power. I mean, Kim, you had a great example, I think in an NPR interview, right. If the president were to say, I pardon all white prisoners in federal custody, they -- I used my absolute constitution power. Like, that clearly violates other parts of the Constitution, Equal Protection Clause, among others most likely.

You know, again, you could construct examples of using the power in a way that seemed to so obviously fly in the face of some sort of intuitive and even legal constitutional principles of limiting conditions. I should also say, Kim, there's now a new New York Times headline with more pardon news, which is the President has discussed with his advisors, pardons for his three eldest children and Giuliani.

My first reaction to that is poor Tiffany Trump, as always. But what -- I guess you can pardon your three eldest children and your attorney. That would squarely sit within the ability, Kim?

WEHLE: Well, I mean, you know, you use the example I had mentioned at NPR, but yesterday, the example I might have used in addition to that is, you know, sitting with a kiosk in front of the White House saying, give me money and I'll give you pardons. That would be some extraordinary example, off the charts example of how a pardon could be abused. And here we are. We're actually having that conversation that demonstrate that there has to be limits.

And I should note, bribery, remember, we spent a lot of time talking about impeachment. Bribery is an express basis for impeachment. And you cannot use a pardon to excuse impeachment. So, I think that itself shows that bribery, this kind of thing was not in the minds of the Framers. They really thought pardoning was about mercy and that will be used judiciously. And pardoning your kids for an unmentioned crime arguably is problematic.

HAYES: Well, that's -- and that gets back to sort of an interesting part of the pardon history here, Jed, which is just, you know, it's one thing if you say this person committed this crime. They were they either pleaded to it or they convicted by a jury of their peers, they express remorse and contrition, or even if you think, you know, this was something that probably shouldn't have prosecuted the way it was, or this person was treated as adults when he shouldn't have been -- whatever, right.

The idea of kind of prospective pardon, this sort of permanent federal get out of jail free card, which, you know, prior to the judicial process working, it's something that we saw with Ford's pardon of Nixon, I think most famously, like A, that seems to be what we're talking about in the case of this, right, with Giuliani and his three eldest children, who as far as we know, don't have not been convicted of a crime. Maybe they've committed a lot and they don't want to face action. I don't know. It's weird.

I wouldn't ask for a pardon. I don't think I deserve one because I don't think I've done anything criminal. But like, where does that come from that concept that you can just kind of wave your magic pardoned wand over anything that might be out there?

SHUGERMAN: Well, to be completely honest, it actually comes right from the federal convention. I mean, this is where I'm going to respectfully disagree with Kim. Because in Philadelphia, in September of 1787, as they're wrapping up the Constitutional Convention, they have an extended debate about the party in power. And there are a number of framers at the convention who are worried about coconspirators and are worried about things like treason, and they expressly decide a few things.

One, they still allow pardons for things like treason, for anything other than getting someone off the hook of impeachment. But they also deliberate on the question of coconspirators and they leave it open-ended. So, I think -- I understand where Kim is coming from. And I and I have to agree with her that the courts have recognized or signaled that the pardon in power isn't completely absolute. I agree with her that it is constrained or limited by other parts of the Constitution.

Nevertheless, it is part of our history of mercy that the Founders wanted a very broad pardon power, including this kind of scope.

HAYES: Look, can I --

WEHLE: And I don't disagree with that. I don't disagree with that.

HAYES: Yes, let me -- let me finish with this question to you Kim on this. I mean, one thing that I think we're seeing with pardons, and I think we saw this with Roger Stone, I mean, conceivably right that the conception of the limiting condition here has to do with politics at some level. Like, you know, if you -- if you had someone go murder your political opponents, and then you pardoned them, you know, well, is that legal? I don't know. But also like, you would think that would be politically toxic and would lead to really bad political outcomes.

We're kind of off the map in that respect. I mean, that to me is what all this has signaled. It's what Roger stones pardoning signaled before the election. You know, him in a lame duck now, which is that whatever limiting condition there might be in public opinion, he's out the window as far as the White House is concerned.

WEHLE: Sure. I mean, Hamilton indicated some -- that the reason we don't need more restrictions on the -- on the pardon power was because people will use it in a judicious way, and they'll worry about the reputation and there will be political consequences. And it's not just Donald Trump. I mean, there have been a number of presidents that, including Bill Clinton, and others who have used the pardon power in controversial ways, Nixon.

There were -- there were concerns that it was used in a political way. And I don't disagree that for the most part, it's the way it goes. And you just live with these pardons and you let the chips fall. What I disagree with is some notion that it's set in stone in the Constitution. For example, the Supreme Court has held that in connection with the conviction, you have to give money over to the Treasury, and then you're pardoned, that money can't be given back to you, notwithstanding the broad pardon power without an act of Congress authorizing that pursuant to the appropriation (AUDIO GAP).

So, there is a Supreme Court decision saying so there are some places where we have to have boundaries. That's all of the Constitution. Look at the legislative -- the shall -- the legislative power shall be lodged in the Congress. President issue executive orders, agencies issue regulations, notwithstanding the word shall. That's my point. This notion that it's all encompassing, just isn't consistent with how we read old documents, including the Constitution.

HAYES: We're going to get, I think, a lot of tests of this as this develops. And hopefully we're going to learn more about this particular case that was revealed tonight, the existence of what the Department of Justice calls a bribery for pardons scheme, reaching out to the White House. And as Kim rightly notes, there's only one person that can be bribed for that. One person in the entire world who can be bribed for a pardon in the U.S. system as the President of the United States, Donald Trump. Jed Shugerman, Kim Wehle, thank you. That was really illuminating.

Tonight, dangerous new levels of delusion for the President and his enablers, leading one local officials to make an impassioned plea for the President to relent before someone gets killed. We will play that for you next.


HAYES: The words of the old union protest song, the question for conservatives and Republicans right now is just which side are you on? Which side are you on with respect to the extremely dangerous delusion about election fraud the President is actively cultivating?

And the delusion, the collective delusion is getting worse by the day. Even if it's clear that the more obviously impotent it becomes, the more dangerous it feels in terms of the rhetoric. It's not going to work. And so, because it's not going to work, they have to make the case in worse terms.

Here's someone on the President's legal team calling for the murder, the murder, the execution of Chris Krebs, the former head of Cybersecurity Infrastructure Security Agency.


JOE DIGENOVA, LAWYER: Anybody who thinks that this election went well like that idiot Krebs, who used to be the head of the Cybersecurity --

HOWIE CARR, RADIO TALK SHOW HOST: Oh, yes, the guy that was on 60 Minutes last night.

DIGENOVA: That guy -- that guy is a class A moron. He should be drawn and quartered, taken out at dawn and shot.


HAYES: Taken out at dawn and shot. Really hard to overstate how dangerous that kind of thing is. It's completely unacceptable. It's totally irresponsible to air on television, but that is what Newsmax TV is going to bring to American discourse. DiGenova now, of course, admit the outrage and threats claiming he was just joking. "My remarks were sarcastic and made in jest."

It's pretty hard to take him at his word. But what do you think people thought when they heard that? You think everyone got the sarcasm and the jest? And then there are the conspiracy theories about election results going viral, leading to a young I.T. worker in Georgia getting death threats. Just a random worker who just happens to work in the I.T. department.

There are some conservatives who, I think, have bad politics by and large that I don't agree with, whose vision the world I don't agree with, but are willing to stand on the basic side of truth and democracy here. I mean, they're choosing the right side.

One of them today, the voting implementation manager in Georgia, Conservative Republican named Gabriel Sterling came out to unload.


STERLING: Good afternoon. My name is Gabriel Sterling. I'm voting system implementation manager for state of Georgia. And just to give you a heads up, this is going to be sort of a two-part press conference today. In the beginning of this, I'm going to do my best to keep it together because it all gone too far. All of it.

Joe DiGenova today asked for Chris Krebs, a patriot who ran CISA, to be shot. A 20-something tech in Gwinnett County today has death threats and a noose put out saying, you should be hung for treason, because he was transferring a report on batches from EMS to a county computer so he could read it.

It has to stop. Mr. President, you've not condemned these actions or this language. Senators, you've not condemned this language or these actions. This has to stop. We need you to step up. And if you're going to take a position of leadership, show some.

My boss, Secretary Raffensperger, his address is out there. They have people doing caravans in front of their house. They've had people come onto their property. Trisha, his wife of 40 years is getting sexualized threats through her cell phone. It has to stop.

This is elections. This is the backbone of democracy. And all of you who have not said a damn word are complicit in this. It's too much. Yes, fight for every legal vote. Go through your due process. We encourage you, use your first amendment. That's fine. Death threats, physical threats, intimidation, it's too much. It's not right. They've lost the moral high ground to claim that it is.

I don't have all the best words to do this because I'm angry. And the straw that broke the camel's back today is again this 20-year-old contract for a voting system company just trying to do his job. He's there. In fact, I talked to Dominion today and he said he's one of the better ones they got.

His family's getting harassed now. There's a noose out there with his name on it. It's not right. I've got police protection outside my house. Fine. You know, I took a higher profile job. I get it. The Secretary ran for office. His wife knew that too. This kid took a job. He just took a job. And it's just wrong.

I can't begin to explain the level of anger I have right now over this. And every American, every Georgian, Republican and Democrat alike should have that same level of anger. Mr. President, it looks like you likely lost the state of Georgia. We're investigating. There's always a possibility. I get it. You have the rights to go through the courts.

What you don't have the ability to do, and you need to step up and say this, is stop inspiring people to commit potential acts of violence. Someone is going to get hurt, someone is going to get shot. Someone is going to get killed. And it's not right. It's not right.

You all, I don't have anything scripted. This is -- like I said, I'm going to do my best to keep this together. All of this is wrong. DiGenova who said for Chris Krebs to get shot, he's a former U.S. Attorney. He knows better. The people around the president know better.

Mr. President, as the Secretary said yesterday, people aren't giving you the best advice on what's actually going on the ground. It's time to look forward. If you want to run for reelection in four years, fine. Do it. But everything we're seeing right now, there's not a path. Be the bigger man here and stop, step in. Tell your supporters, don't be violent. Don't intimidate. All that is wrong. It's un-American.


HAYES: It's pretty remarkable to see that. I have a lot of complicated feelings about it, but remarkable nonetheless. He chose which side he was on. Good for him. And this is a simple test most Republican Party is failing today, a cynical calculation that it is in their best political interest and that they're scared of their own people. Almost the Republican caucus continues to say absolutely nothing. We know which side they're on.

With me now, Michelle Goldberg, op-ed columnist for the New York Times, McKay Coppins staff writer for the Atlantic. They both extensively covered the effects of Trumpism in America. Michelle, I was really struck by that today for a lot of reasons. What was your reaction?

MICHELLE GOLDBERG, MSNBC POLITICAL ANALYST: You know, I think that on the one hand, we've seen a lot of these state officials behave with a lot of honor and professionalism. And to the extent that this election didn't go completely off the rails as a lot of people predicted in the run-up, it's because of the honor and professionalism of Republican state -- you know, state officials in general, including republican state officials.

At the same time, you know, what Donald Trump is doing is not new. You might say that there's something, you know, particularly autocratic, particularly frightening about the way that he is contesting the results of the election. But to see a Republican suddenly so furious at Donald Trump, suddenly so aghast at the way that Donald Trump spreads conspiracy theories and incites violence against, you know, both officials and also more obscure Americans, on the one hand, it's welcomed. On the other hand, you know, it's like that he's just waking up to it because it's happening to him.


GOLDBERG: Because none of this is new. It's just, you know, there's an element of now suddenly, it's directed at a Republican.

HAYES: And McKay, it's like, this was always where it was headed. This was where it was headed. And I thought of you today because, you know, you wrote that BuzzFeed profile back when he was thinking about running for president. This is where it was headed when he was using Birtherism. The President is not constitutionally eligible to hold office. He has a preposterous conspiracy theory, very similar in many ways to this one, as his ticket.

And you know, Republicans, they winked, and they nodded, and they sidestep, and they played along. And Mitt Romney went to get his endorsement in a kind of sheepish fashion. And John Boehner kind of shrugged it off. And everyone sort of did their, Oh, what are you going to do. And here we are in 2020, and there's a noose outside this kid's house. And, you know, this has been going on for four years. It's like, yes, no doubt.

MCKAY COPPINS, STAFF WRITER, THE ATLANTIC: Yes. This is the thing that Donald Trump has done in a kind of a perverse way that's brilliant is that the way that he's exercised dominance over the Republican Party, and over Republicans in general, is that he's created this increasingly absurd set of litmus tests that he requires the rest of his party to pass, right.

And so, first, it was Barack Obama wasn't born in the United States, absurd conspiracy theory, completely untrue. People felt like they had to go along with it or at least wink at it in order to be taken seriously by the Republican base. Then it was a Muslim immigration should be banned. Then it was openly soliciting foreign interference in a presidential election. It's fine and let's not -- we don't have to care about it.

Then it was the idea that the presidential election should be reversed, the outcome should be reversed by tossing millions of ballots, right. That's currently the argument that Donald Trump's legal team is making, and the vast majority of Republican elected officials are going along with it. And by the way, going to your earlier segment, I'm pretty sure we're going to hear pretty soon the idea that, you know, bribery for presidential pardon is no big deal. That'll be the next litmus test, right?

Trump has been doing this for years. And I think that what was so powerful about that clip that you showed wasn't really the anger indignation, at least to me. It was the desperation. You know, it was like, almost this sense of hopelessness because he knows even as he's kind of giving this impassioned speech, which good for him, he knows that President Trump isn't going to forcefully condemn these threats.

He knows that the vast majority of Republican senators, especially the ambitious ones are not going to come out and condemn this. And so, it's kind of almost like a cry into the wind. He's just -- he's, you know, saying his piece but he knows that it's probably not going to make a difference.

HAYES: Yes. You know, he just described -- Michael Brendan Dougherty wrote a piece at the National Review describing it as an insanity pledge, like getting jumped into a gang, right. That you have to publicly pledged that you believe utterly ridiculous things as a sort of badge of loyalty.

And it connects, Michelle, to the parking situation right now, right? Again, because it's like what we have seen, the President got 72 million votes. He lost the election by a lot. He lost by 4.5 points and, you know, seven million votes. He got turfed out as a first-term incumbent. It doesn't happen very often.

But 72 million people voted for him, and there is -- there's a floor. And they know they have a purchase on a certain segment of the population. And so, whatever normal constraints that would normally be politically are gone. And that is why maybe he pardons himself or he pardons Rudy or pardons all his kids or he pardons everyone that ever talked to him about whatever he was up to because the same people that Georgia official are addressing don't -- they're not going to care.

GOLDBERG: Well, and it's not just that they have this floor, you know, that they have the 72 million people who are -- you know, who are willing to overlook the most egregious sort of misconduct. It's that they don't need to win a majority.

And you know, that's been my hobbyhorse for a while. The sort of, you know, kind of democratic tailspin that we're in as a result of minority rule, as a result of the fact that, you know, Republicans can exercise so much dominance in the Senate, in the Electoral College, you know, in the House due to gerrymandering, without ever having to win a majority of the votes.

And when you don't have to win a majority of the vote, when you can roll despite losing the majority of the vote over and over and over again, it kind of eviscerates normal democratic accountability. So, they don't have to worry that there will be a backlash that the majority of people will be horrified.

The majority of people will be horrified, I'm sure, if Donald Trump pardons his children, you know, if Donald Trump lawyers continue to spread, you know, completely ludicrous conspiracy theories and issue random death threats against former administration officials. And they know that it doesn't matter and it's not accountable.

And that's one of the things that is so dangerous in our politics right now. And that's, you know, kind of is why our politics is so desperately in need of structural democratic reforms.

HAYES: Michelle Goldberg and McKay Coppins, thank you both for making some time with us tonight. Ahead, while the President is reportedly in talks to pardon his family, he's also actively ramping up federal executions in a rush before he leaves office. Bryan Stevenson on Donald Trump's rush to execution next.



DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I am so for the death penalty. And I think as far as terrorism is concerned, death penalty with a speedy trial.

I've always supported the death penalty. I've always supported the death penalty. I don't even understand people that don't. If we don't get tough on the drug dealers, we're wasting our time. And that toughness includes the death penalty.

I'm also directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty, and that this capital punishment be delivered quickly, decisively, and without years of needless delay.


HAYES: You know, from 2003 to this July, the federal government didn't execute anyone despite the fact the federal government does have the death penalty. And then Donald Trump and William Barr change that. And in five months, they have put eight people to death. They have scheduled five more people to be put to death as they rush towards the exits on January 20th.

They want to make sure they get those killings in before they leave. At the same time, we are learning the president is discussing giving out pardons like party favors to his associates and family, which is what law and order has always meant to Trump from the beginning, for my friends, everything and for my enemies, the law.

And someone who's spent a large part of their career trying to save inmates from execution and dismantle the entire machinery of death in the criminal justice system, Bryan Stevenson, founder and executive director of the Equal Justice Initiative, and he joins me now.

Brian, can you give us a little background on the federal government's use the death penalty? What changed under Donald Trump?

BRYAN STEVENSON, FOUNDER AND EXECUTIVE DIRECTOR, EQUAL JUSTICE INITIATIVE: Well, there are tremendous questions about the reliability and the credibility of many of these death sentences. And so, most prosecutors had been trying to resolve those issues. And then we've seen in the last several months this rush to execute, and it's really catastrophic.

I've often argued that the death penalty can't be understood by asking the question, do people deserve to die for the crimes they've committed? The threshold question surrounding the death penalty is do we deserve to kill? Does our system, do our decision-makers have the integrity, the credibility, the fairness needed to exercise this extraordinary power.

The American people have given the United States government the power to kill it's the most extraordinary power a government official has. And they expect that power to be exercised reliably, fairly. And what we've seen is a really dramatic example of reckless political use of this power in a way that is unprecedented in American history.

These executions are being expedited on a schedule for political points. And I just have to say that I don't think I've seen more dramatic evidence about why the death penalty should be abolished. I'm hoping that the Biden administration will help Congress get to abolition, because we've now seen that our Justice Department and our government can't be trusted with something this extraordinary when it's going to be used as recklessly as we're seeing it being used today.

HAYES: Yes. There's two, to me, really troubling things. I mean, I don't believe we should have the death penalty. I strongly oppose it personally, morally, politically. But even that aside, the idea that starting in July of an election year you wind this up as clearly a kind of reelection year gambit, as a show of force, and that people's lives, the execution of prisoners will be part of that.

And then after you are defeated in a lame-duck where we expect like suspect pardons, right, and you're unshackled by democratic accountability, to then rush towards the exits to make sure that these people get pulled into the chamber and killed in a kind of race against January 20th seems particularly egregious. Has that happened before? Like we've seen pardons out the door. Have we ever seen anything like this?

STEVENSON: No. I mean, it's interesting. We have about 54 people on death row, 60 people on death row under the federal government. There are almost 3,000 people on death row across the states. Now, the United States is going to end up executing more people than the rest of the country combined. And it is very definitely a rush to execute.

And I just think this country is losing so much credibility. The integrity of our justice system is being compromised in ways that are so fundamentally tragic that you can't get credibility back quickly, you can't get legitimacy back quickly. This Department of Justice and the President have actually authorized new methods of execution. They're actually trying to get rules adopted that will allow the United States to execute people by firing squads, and even more shamefully, would allow this country in 2020 to replicate the method of execution that the Nazis use to kill millions of Jewish people in World War II. They want to put people in gas chambers and suffocate them.

And this is all spectacle. It's not really about justice. It's not about fairness. It's about demonstrating power. And it's tragic because there are these really important questions that we have to be answering before we execute people. The last person executed Orlando Hall was a black man. He was convicted by an all-white jury. He argued to the United States Supreme Court that his conviction and sentence were compromised by illegal racial discrimination and jury selection.

The prosecutor who prosecuted his case that brought in -- that brought in to do the jury selection had a history of illegally excluding African-Americans from serving on juries that the United States Supreme Court had established in an earlier case. That prosecutor excluded 80 percent of the black people qualified for jury service in his case.

A study was presented, data was presented that in this country, prosecutors are six times more likely to seek the death penalty under the federal system for black defendants. And it's worth emphasizing, Chris, that 95 percent of the prosecutors in America are white. And so, these data become really significant.

HAYES: Right.

STEVENSON: The Department of Justice is eight times more likely to authorize the death penalty for black defendants rather than non-black defendants. And judges and sentencers are 16 times more likely to impose the death penalty against a black defendant.

Now, these are important questions that these -- that have to be answered before we execute someone. And that didn't happen. And now we have four more black people scheduled to be executed. And it just says a lot about our commitment to equality, fairness. You can even be in favor of the death penalty, but if it's going to be imposed in a discriminatory manner against the poor. It's going to be in disclosed in a political manner, in a racially biased manner.

We're about to execute a woman who has a history of abuse that we haven't fully grappled with. Then you're going to undermine credibility and integrity in ways that I think are unprecedented in this area of the law.

HAYES: Yes. And a parade of really monstrously cruel actions taken throughout this time. This is really, I have to say, up near the top in terms of how troubling it is, as we wind down the Trump era of this country. Bryan Stevenson, it's always wonderful to be able to talk to you. Thank you so much.

Ahead, they're roughly 100,000 Americans suffering from COVID in the hospital tonight, right now. There's also new reporting the disease has been in this country for longer than we thought. A fascinating new finding, more on that ahead.



UNIDENTIFIED MALE: Have you been briefed by the CDC --

TRUMP: I have.

UNIDENTIFIED MALE: -- on the words about a pandemic at this point?

TRUMP: No, not at all. And we're -- we have it totally under control. It's one person coming in from China and we have it under control. It's going to be just fine.


HAYES: It's going to be just fine. Remember that? All the way back in January, the president claiming there was no reason to worry about a pandemic. It was one person from China. A new study by the CDC shows that people in the U.S. were already infected with the virus in the middle of December, weeks before it was officially identified even in China and about a month before the first official U.S. case.

The CDC went back and tested over 7,000 routine blood donations collected between December 13th and January 17th and found evidence of infection in 106 of those blood donations. Not only was COVID-19 here earlier than we thought, if this is correct, it was all over the place. The study found evidence of antibodies and samples from California, Connecticut, Iowa, Massachusetts, Michigan, Oregon, Rhode Island, Washington, and Wisconsin all before Trump ever said it's just one person coming from China.

Alexis Madrigal is a staff writer for The Atlantic who's been covering the pandemic since its earliest days, also co-founder of the COVID Tracking Project which we really rely on and a lot of people do which is precise and the most reliable data on the virus spread across the country. He joins me now. It's good to see you, Alexis.

I know there's been -- there's been a lot of sketchiness around antibody testing. And I know people who have gotten antibody testing, and it's come out different ways. This is a CDC report. I wonder, you know, what does it say? What is your conclusion? What can we draw from this if indeed it was here that early?

ALEXIS MADRIGAL, STAFF WRITER, THE ATLANTIC: Well, I think the problem really here is that anybody testing is subject to problems with what's called specificity. Basically, that there could be in those samples, people who had recently had other coronaviruses. And that what these tests are really picking up is not an early signal of COVID-19, you know, in the United States, but just that these people had recently had a cold.

And it's not that it's not impossible that there were some cases in the U.S. earlier than our timeline generally indicates, but just that this prevalence is quite high for this time in the game. And it requires us to believe a lot of other things about the path of the virus that I'm not sure how to check out.

HAYES: Wait, tell me -- explain that.

MADRIGAL: Sure. So, if this many people had COVID at that time, that would actually translate in the general population to millions of people being infected. And that's not really what it looks like, generally speaking. The other piece of evidence that's really important is up in Seattle. They tested people who are having severe respiratory problems, thousands of them, and found no evidence with a better test of COVID-19, you know, in the month of January in Seattle, where we did see cases early.

So, you know, I just think when something like this, it just -- you know, we take a step back and we say, does this make sense against the common (AUDIO GAP) and understand about this virus?

HAYES: Yes, that's interesting. You know, what, what struck me about it -- and so one of the things that we see, and this sort of brings us to where we are tonight, right, with record hospitalization is the kind of -- you know, the thing -- the reliable flare from the virus, right. The thing that whatever your surveillance is, whatever you're testing, whether your antibody testing is right or not, is that the hospitals fill up.

It just like this -- you know, we saw it in Hubei Province, we saw it in Lombardy in Italy. We saw it in the -- like, it just happens over and over that this is the thing that says whatever public health surveillance you have, when those hospitals are filling up, it is there, and it is everywhere. And that is where we are right now tonight, even with huge increases in testing.

MADRIGAL: That's exactly right. I mean, we're at basically 100,000 people in the hospital. And that's probably a bit of an under-report from our numbers at the COVID Tracking Project. So, you're already over 100,000 people who are in the hospital in the United States.

One of the things we see just to back up your point. You know, Health and Human Services, HHS, has put out some new data on hospital admissions. That's people, you know, getting into the hospital. And one of the things that's really interesting, if you plot cases in the United States and you plot hospital admissions, they basically move in lockstep, you know, within a day or two of each other.

And that's because our data pipelines for cases move a little slower than our data pipelines for hospitalizations. And so, you see, those things move up almost instantaneously. And so for us, particularly over a time like this, you know, where Thanksgiving is making all the data weird, we just kind of keep our eyes on the hospitalizations because that really tells you what's going on in the country.

And it's also what you really want to know because the breaking point for us in the United States is really hospitalizations, it's hospital staff shortages, its bed shortages, it's running out of space in the ICU.

HAYES: Well, and that to me brings us to what is so weird about where we are right now, as we look at this chart, right? You know, it has always been that the hospital capacity was the limiting condition. The hospital capacity was the thing we had to protect at all costs because you don't want these cascading effects if your entire hospital system melts down.

You can't provide emergency care to people that are in car accidents or were dying from other illnesses, right. The whole thing melts down, you get much higher levels of fatality. And that's what bend the curve was about. It was about producing a flattening enough that the hospitals had time. And it just seems like A, that wasn't enough. We should have tried to suppress the virus.

But now, it's like the curve, we're not bending it and the hospitals are overflowing. And you kind of look around and think like, what happened.

MADRIGAL: I mean, what happened is we just let the virus go. I mean, that's what happened, you know, from the White House on down, you know. They just stopped trying to actually bend the curve. And I think it was a terrible, terrible miscalculation driven by, you know, presidential advisors who said, hey, this thing isn't that bad, minimize it at every turn.

And as a result, we never got down to levels where we can actually do the sorts of things you need to do to suppress the virus, you know, testing, contact tracing, and being able to actually get the spread of this thing under control. And when we hit the seasonality that people were worried about, you know, the virus seems to transmit more effectively during the wintertime for any number of reasons that are hard to parse out. And when that happened, you know, we -- the country is all on fire now.

And you know, we have a ways to go. There's a lot more places where they're sort of dry tinder to burn, that's the state population. People haven't been infected. And so, we don't see hospitalizations topping out anytime soon just based on the states that still have yet to (INAUDIBLE)

HAYES: 2,463, I believe, American deaths recorded today that did die today. They're recorded today and there are more on the way. It's unfathomable. Alexis Madrigal, thank you.

That is ALL IN on this Tuesday night. "THE RACHEL MADDOW SHOW" starts right now. Good evening, Rachel.


Content and programming copyright 2020 MSNBC. ALL RIGHTS RESERVED. Copyright 2020 ASC Services II Media, LLC. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of ASC Services II Media, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.