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Transcript: All In with Chris Hayes, December 2, 2020

Guests: Ned Lamont, Peter Hotez, Michael Schmidt, Nancy Gertner, Mark Becker


Tonight, 100,000 people are hospitalized, 195,000 new cases today, and over 2,700 deaths recorded in the U.S. CDC Advisory Group recommends nursing home residents be among the first to get COVID vaccine. President Trump considers more pardons in his last days including pardoning himself. President Trump pushes lies about the election in a new Facebook video.


JOY REID, MSNBC HOST: The goal is to not have war, to not drag us into another war somewhere in that region. And let's just hope that Biden has a plan. Trita Parsi, the person I want to talk to about this so much, thank you very much.

That is tonight's REIDOUT. "ALL IN WITH CHRIS HAYES" begins right now.


CHRIS HAYES, MSNBC HOST (voice over): Tonight on ALL IN. America's Coronavirus failure comes further into focus.


SCOTT ATLAS, CORONAVIRUS ADVISER, WHITE HOUSE: It's actually good news that the virus spreads widely and without high risk to the vast majority of people.

HAYES: Tonight, how we still haven't protected the vulnerable and new alarms about the White House plan to distribute vaccines.

Then, the MAGA delusion continues.

L. LIN WOOD, ATTORNEY: He won over 410 electoral votes. He won every state including California.

HAYES: Tonight, how one Republican senator is admitting to humoring the president to save his own career, and how Donald Trump's fear of prosecution is feeding pardon talks for himself and his family.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I hear that these same people that failed to get me in Washington have sent every piece of information to New York so that they can try to get me there.

HAYES: When ALL IN starts right now.


HAYES (on camera): Good evening from New York. I'm Chris Hayes. Well, today could be the single worst day ever during this pandemic so far. Tonight, a record 100,000 Americans are hospitalized. Look at that blue wave there, the light blue, all the way over there on the right. 195,000 new cases today, that's a record. There were over 2,700 deaths recorded. We are getting very close to records there too. We're going to talk about the numbers and we're talking about what they mean and where we are.

But before we do that, I just want to tell you a story. And it's a story that is not particularly special or unique. I think almost everyone listening will relate to it. When I was in high school, my grandmother lived in an assisted living care facility. That's her there. That's what my grandfather.

And the assisted living facilities near my house, which meant that I could go visit her a few times a week. And I would. I'd walk over. And my Nana had Alzheimer's. She barely recognized me. Sometimes she did, sometimes she didn't.

But I would go and I'd sit and I talked to her and I asked her questions about her life. And sometimes I'd sing her songs. And you know, if I'm being honest, I had to kind of screw up my courage to go there because it was kind of a hard place to visit.

And I think I felt the same way when I visit my other set of grandparents. Those are my dad's folks, Roger and Marian again at my parents wedding. And that's when they were in a more independent setting. They had their own sort of apartment in an assisted living facility out in Chicago suburbs. And this was after college. And I would go and visit them in the morning and bring them doughnuts and coffee and we'd talk.

And when you walk into any long-term care facility, no matter how nice a setting, you're staring into the face of the most profound, inescapable truth about life on this planet, which is that we get older, and then we die. And it can be hard to be face to face with that. It can be really hard to be face to face that with the people you love, that you care for.

There's a certain kind of melancholy that hangs over it when you're with a person you love in a facility that isn't their home really, it isn't your home. There are people in those facilities who are incredibly caring and tender to my grandmother and my other set of grandparents that I felt so grateful for. I still do. There are tens of thousands of people who work so hard in those environments, are very difficult environments to work in.

Those facilities are places that we kind of shut our out of our mind and our society generally. I mean, there's not a lot of like pop cultural representations, not a lot of -- not a lot of movies set in nursing homes. And yet, they're the places where some of the most cherished people in our lives live and some of the most vulnerable.

And COVID has been a real test of us morally as a society about who we value and what we value and how we value people. And we're failing that test. We are failing it. If I told you there was a serial killer stalking through senior citizen homes, if I thought about one going down the hallways in the facility where my grandmother lived, killing residents one by one, or there was a terrorist cell sequentially planting bombs in those buildings, I think it would probably be front-page news in any town or city in America. There would be enormous resources to stop it.

But in the last eight months, we lost over 100,000 people in long term care facilities, 100,000 people. Just one percent of Americans live in those facilities and they make up nearly 40 percent, 40 percent of the Coronavirus deaths that we've seen in this country. And there are some people who will just come out and say it doesn't really count because they were old or ill.


BEN SHAPIRO, CONSERVATIVE COMMENTATOR: If somebody who is 81, dies with COVID-19, that is not the same thing as somebody who is 30 dying of COVID-19. If grandma dies in a nursing home at age 81, that's tragic and it's terrible. Also, life expectancy in the United States is 80. So, that is not the same thing.

DAN PATRICK (R), LIEUTENANT GOVERNOR OF TEXAS: Let's get back to work. Let's get back to living. Let's be smart about it. And those of us who are 70-plus, we'll take care of ourselves. But don't sacrifice the country.

BILL O'REILLY, FORMER TELEVISION HOST: Many people who are dying mode here and around the world were on their last legs anyway, and I don't want to sound callous about that.


HAYES: What kind of people are we? Are we are people who don't care about our elders, who don't cherish them, don't protect them, don't look out for them? Is that the kind of people that we want to be? This was all foreseeable. Remember, one of the first sites of mass deaths in this country was a nursing home in Washington State where two-thirds of the residents got sick and 37 people died.

And we on this show, we started talking about the need to protect those facilities and the need for testing right from the very beginning, expert after expert. But the fundamental problem is this. You cannot detach those facilities from the rest of the community. You cannot protect vulnerable people in long term care in a society in which the virus is running rampant. And that has been clear for a while now.

Look at Sweden. It's clear what happened in Sweden, right? Remember, Sweden ran the big experiment. They let the virus run rampant, and they saw a wave of death in nursing homes. That's a very developed country with a very good safety net, social democracy. It still has gotten the nursing homes.

Now, President Trump didn't want to hear that. He didn't want to hear that you had to suppress the virus. He didn't want to hear he had to do the very difficult work necessary to suppress it. He wanted everything to be normal. He wanted it to go away so we get the business as usual, so he can get reelected.

And so along came Scott Atlas, a right-wing radiologist to tell him you can have your cake and eat it too. He said it on the President's favorite TV shows, all the public health experts are wrong. Don't worry about trying to stop the spread of the virus in general. In fact, it's a good thing if it spreads among people who are low risk.


ATLAS: 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. Instead of total lockdown going on which prevents that, we have a chance to have people develop their own antibodies, and eventually have enough people have these antibodies to block the sort of network of progression and contagion to the people who are vulnerable. We know how to protect the vulnerable here.


HAYES: No, no, we don't know how to protect the vulnerable. It turns out, we don't know or we didn't. We can't protect them. And that's the legacy that Scott Atlas leaves. Scott Atlas who worked for Donald Trump and told him what he wanted to hear, here's what it looks like when you run the Scott Atlas experiment and just tell everyone to go back out there and ignore the virus. It's good news if it spreads.

This is the chart of daily COVID cases starting on Scott Atlas' first day in August until now. We had 42,000 cases the day he started, and then the chart just shoots up, and we are now averaging nearly 158,000 per day. Today was almost 200,000. And daily deaths, while they follow cases as surely as night follows day, daily deaths are up to since Atlas started. Despite improved medical care, despite improved treatment, we are seeing deaths go up and up and up and they will keep going up.

And overall since his first day on the job, we've lost nearly 104,000 Americans to the virus. So, mission accomplished for the first part of Scott Atlas' plan. You did it. You work with the president and you let the virus run rampant. It is sure running rampant now.

Now, where did we end up on the other part? Where do we end up on the protect the vulnerable part? Well, here's where we are on that.


UNIDENTIFIED MALE: At the Andbe Home, private owned -- privately owned facility, it's in Norton, Kansas, we're told not only have 10 people died, but all 62 residents there have tested positive for the virus.

UNIDENTIFIED FEMALE: Rio Vista Health Care Center acknowledged this week that it has 100 confirmed COVID-19 positive residence at the facility. No other nursing home in California has that many cases.

The Courtyard Nursing Care Center in Medford says 54 of its residents have died and more than 100 others are infected. Saddlebrook Memory Care in Frisco is home to dozens of people suffering from Alzheimer's and dementia. The COO of its parent company confirming that 10 residents who tested positive for COVID-19 have died since late last month.

UNIDENTIFIED MALE: New York health leaders are scrambling this morning to try to contain a surge in COVID-19 cases at the North Country Senior Care Facility.

UNIDENTIFIED MALE: More than 700 nursing home residents across the state have died from COVID-19.


HAYES: So, now we're hopefully getting closer to the end of the pandemic, if we can keep people alive and if we can protect them, if we can take the steps necessary to suppress the virus and keep people's parents and their grandparents and our loved and cherished elders alive through to the vaccine because they are going to be among the first people to get the vaccine.

Because yesterday, a federal advisory panel voted 13-1 to recommend that the first doses be given to healthcare workers and residents, staff of long-term care facilities. And you know what? I don't think that's a controversial view. It's a polarized country. But I think literally whatever your politics are, we can all agree that's a good idea.

That's something we all share. But up until now, up until now, we have failed to live up to the values that are embodied in that vote and in that policy, and we still have weeks if not months to go. I'm joined now by the Democratic Governor of Connecticut, Ned Lamont, who set up a nursing home and assisted living oversight working group in October as cases and best mounted in facilities across his state.

Governor, thank you for taking time. Governor, you had an experience in April where there were a lot of -- a fair amount of fatalities in facilities in your state. You commissioned a report to try to sort of implement reforms. But as far as I read the data in your state, they're still going up again right now. Is there anything to be done, the lessons you've learned to protect the folks in those facilities?

GOV. NED LAMONT (D-CT): Testing, testing, testing, we're in there testing in every facility on a weekly basis, Chris. And anybody looks like they're symptomatic or testing positive, we get them out. We get them in with COVID only wing or a COVID-only facility. We're trying to limit the nurses, so they stay just in one nursing home. Sometimes they're going to multiple nursing homes, because there is a shortage of nurses.

We've got the PPE, we've got the masks, we've got the disinfectant. We're pretty good on that. And the tragic decision we had to make was a no more visitations. And what that means to grandma or grandpa, it's really hard. But those visitations, we're bringing the (INAUDIBLE) with them. And they will be the first ones vaccine. They will be starting that hopefully in a few weeks.

HAYES: Is that your understanding that those facilities, you might be getting actual doses to get to those facilities in a few weeks?

LAMONT: That's right. We get the Pfizer vaccine. It ships on Monday. It's got the ice. It's going right to hospitals and nursing homes. And we've got the big pharma companies are going to be there or the drug companies are going to be making sure it's administered. They're going to be a priority, the nursing homes.

A, it's the right thing to do for those seniors. And B, hopefully, don't get any complications, don't have to go to the hospital, and frees up capacity for other people in the hospital.

HAYES: Here's my question. You know, I know that you've implemented policies. There was a -- you stopped visitation and let it back in once sort of community transmission has lowered. Now, you've stopped visitation again. I guess the question is, we haven't seen anyone unlock community transmission from fatalities.

We haven't seen anyone really successfully have any experience, whether it's in a state in the Union, or it's a country in the world, have high levels of community transmission, and not have high levels of transmission into facilities and high levels of deaths because of it. Isn't it the case that community transmission is ultimately the issue here and is going to be for the next month or two?

LAMONT: I think you're right about that. I mean, all the precautions we take, this is a bubble where it's hard getting out, nobody in. Your right, it's leaking into our nursing homes again, and that's because we have a higher community transmission. And we're being as strict as we can on this, but I think that is the leading indicator. You're right. That's why the vaccines are going there first.

HAYES: This is sort of a grim question, but I'm going to ask it. Do you have a number in your head of what level of mortality in your state is acceptable as a policy choice, which is to say, obviously, there are trade-offs here? Some kind of full shelter in place order probably would bring down community transmission, it would also cause other cascading problems. We know that. We know there are difficult trade-offs here. How do you think about that? Is there some number in your head of what fatalities are acceptable in the state of Connecticut?

LAMONT: No. I think fighting for every single life I can. And if you want to know what my metric is, it's doing everything I can to keep our hospitals functioning, make sure our nurses and doctors are there to take care of folks, make sure I have the ICU and the beds. I'm not making any trade-offs in terms of there's a number of except. There's no number I'm accepting. Every single one of our fatalities, I feel like yesterday.

HAYES: But let me -- I'm going to follow up on that because I don't -- I don't -- I'm not -- I take you at your word on that. And, again, this is an impossible problem policy-wise. But it is the case that like, a fuller shutdown would reduce transmission and fatalities. I'm not saying that's what should be done, but at some level every day, every governor and every mayor in this -- in this country is choosing this trade off, right?

LAMONT: Well, no. I think I lead with public health. And if you want to get this economy going, public health has got to be the key metric or we're never going to get this economy back. I'll give you a very specific one worth thinking about right here right now. Restaurants, you know, we've shut them down after 10:00 at night, no more than eight people, 50 percent capacity.

But you know, your mask is off and you're eating it looks like it could be -- could be risky. We're doing everything we can to keep them open right now because we're finding the alternative as people go to informal social gatherings where they're much more likely to get infected.

HAYES: You commissioned this report which I was reading over which is interesting. And I sort of applaud you for doing it. I also wonder, sort of, based on the themes I was talking about before your intro is, is there some kind of after action report once the vaccination happens, once we get out of it, about the nature of long term care facilities and elder care in this country more broadly, that what COVID reveals is something deeper than just the vectors of that particularly vicious infectious disease.

LAMONT: Yes, absolutely. One of the reasons we got hit is we have more people more likely to be in nursing homes in most other states in the country. And I think you're going to find a new emphasis upon home health care for elderly. Kids, if you love me, let me stay at home. Let's get a nurse or a home health aide who can help.

I think we're going to find that nursing homes are reserved for those that need most acute care. But the idea of these big mass congregate settings, I think their days are numbered.

HAYES: Governor Ned Lamont is the governor of Connecticut. And like every governor, Republican and Democrat, facing very difficult choices as we go into the next six weeks of this pandemic. Thank you for making some time for us tonight. I appreciate it.

LAMONT: Great to see you, Chris.

HAYES: Tonight, the U.K. has approved emergency use for Coronavirus vaccine. When will the U.S. do the same? Dr. Peter Hotez on some new alarms over the distribution of the Coronavirus vaccine in America next.


HAYES: How many times a day do you think about the vaccine? I think about it a lot. It's the number one thing that will help get this country back to some semblance of normal life and staunch the massive loss of life from COVID-19. We need a nationwide comprehensive vaccination program.

Today, the U.K. granted emergency authorization to Pfizer's Coronavirus vaccine. They will start vaccinating people next week. Here in the U.S., the FDA is waiting to hear from a panel of independent experts which is convening to discuss the Pfizer vaccine on December 10th.

But even if they approve emergency use the vaccine, which is expected, there's still all kinds of question marks about how and when it gets distributed. New York Governor Andrew Cuomo says he expects to receive enough Pfizer doses by December 15th to vaccinate 170,000 people. California Governor Gavin Newsom says his state expects about 327,500 doses around the same time. And Connecticut Governor Ned Lamont just said on this program that doses of the Pfizer vaccine will ship the facility in his state as early as Monday.

But according to reporting by the Daily Beast, other state and local officials across country says, they are still unclear about basic operational elements such as exactly how many doses they will be receiving from the federal government, who specifically in their communities will receive the vaccine first, and how long immunization supplies will last. And that can be a real problem.

Someone who knows all about the challenges of vaccination, also working on a COVID vaccine himself right now, Dr. Peter Hotez, co-director of Texas Children's Hospital Center for Vaccine Development, and Dean of Baylor College of Medicine's National School of Tropical Medicine where he co-authored a study on how effective a vaccine needs to be to stop a pandemic.

All right, Doctor, here's what I'd like to start with. Can you just -- OK, I think we all expect the emergency use authorization to be granted by the FDA on the 10th. Just walk me through what the next week of the life of these vaccine doses looks like?

PETER HOTEZ, CO-DIRECTOR, TEXAS CHILDREN'S HOSPITAL CENTER FOR VACCINE DEVELOPMENT: Well, as you -- as is pointed out, the first vaccine, the Pfizer vaccine needs to be stored frozen at a deep freeze at minus 100 degrees Fahrenheit and -- that or minus 94. And that in itself is a logistical challenge because most of our vaccines are stored at refrigeration temperatures so that in itself is going to be new.

And now, hopefully, this has been thought about for a long time. This is why we put a four-star military general in charge, Gus Perna, whose specialty is logistics, just for that purpose. So, the assumption is that there are freezers set up at pivotal points all over the country, both in hospital settings and laboratories where we're going to vaccinate health care workers and there's a pretty good amount of freezer capacity at most health centers so I'm less worried about that.

The bigger challenge is how do we vaccinate in assisted living facilities and nursing homes which clearly do not have that. And there's some thought that possibly they'll set up nodes and various commercial pharmacies across cities and states and hopefully that's underway as well. Then the vaccine gets sent presumably by airplane and the logistics of bringing it to those collection sites.

And then remember how important it is to keep tabs on who's getting what. Because this vaccine does -- this vaccine does not work in one dose. The phase one studies clearly show that single dose does not give you significant levels of virus-neutralizing antibody, you need that second dose. So, keeping -- the first hard part is going to be making certain that everyone got the first dose gets the second dose and has situational awareness and gets notified.

HAYES: That's a really, really good point. Someone's got to be on top of that. There's also -- you know, there's been some talk about states -- a number of states said that they were going to sort -- essentially do their own kind of like approval process for the vaccine. And I think that was born of some justified worry about the president essentially putting his thumb on the scale and rushing a process overruling the FDA.

It seems like that didn't happened. It seems like the FDA stood up for itself. What do you think about adding some extra layer of evaluation by states? Gavin Newson talked about we won't take anyone's word for it. Is that a good idea or a bad idea at this point?

HOTEZ: Chris, it's a bad idea. I did not see a role for a second tier of approval from the states. First of all, the states do not have the intellectual horsepower that can anything -- that whatever in any way resemble what the FDA has. The FDA is the world's leading regulatory authority on vaccines, they have an unparalleled track record. There's no added value intellectually for bringing on a state review panel.

Potentially, they would want to do it for optics. But I don't even think that's necessary. I think a lot of that was put in place by some of the governors, including New York and California, because over the summer, there was a lot of political posturing that this vaccine would somehow be used to help win an election. I think the FDA really stood its ground.

Stephen Hahn did a great job in making certain that the science would triumph and only the science would guide it. And I think he's made good on that commitment. So, I don't think even the optics are unnecessary. And there's the potential for terrible abuse, not so much for the vaccine. But what happens a year from now if a product for women's reproductive health gets approved by the FDA? What do you do in some of the red states if one or more of the governors decides they want to put their own committee on it?

You know, who's going to be on that committee. That's -- they're all going to be packing those white chromosomes and it's not going to go well. And so, we have -- want to set -- avoid setting up any kind of precedent about.

HAYES: So, there's a question of logistics. And I think the first ground logistics are really the most important because I think it's going to be places where you're not getting a lot of, you know, resistance to the vaccine, healthcare workers, long term care facilities. But to get to population-level immunity, we need millions and millions and millions and millions of doses. Those have to be given up all across the country.

And we're not -- we don't do forced vaccination of this. This is -- it's not like your kid can't go to school unless they get, you know, measles and mumps and rubella, so people got to opt in. How much of a challenge do you think that is? I mean, I feel like everyone is going to be desperate for it, but it's a big, complicated country.

HOTEZ: That's right. And we have a very aggressive anti-vaccine movement in the United States. And we already have a significant number of polls from multiple sources showing lots of people are going to opt out. They don't trust the process. They believe the disinformation from the anti-vaccine movement. I think some of that will melt away as people start to get vaccinated.

But, you know, as you pointed out before, we did the study with a group at City University of New York to say it's a pretty high bar to achieve that level of herd immunity to interrupt transmission. So, there's two things we want vaccines to do. One, to prevent you from going to the hospital and getting sick. And I have a high level of confidence that all of the Operation Warp Speed vaccines are going to do that. We'll have four or five vaccines by the spring.

But then our studies showed you need about 75 percent of the population to be vaccinated. And that includes children as well, because children are in that equation. So far, we're only beginning step down studies on kids. So, that has to be brought into mind. And then we're going to have to figure out how to dismantle the disinformation and then launch a communication strategy because right now, there is none.

Operation Warp Speed has done a great job, I think, in terms of scientific rigor and integrity, but they never had a communication strategy. It was all left to the pharma CEOs, who more often than not have not done a very good job and they fumbled that message. So, all that has to be put in place. So, there's a lot of situational awareness that needs to be instilled into the American people.

And also, remember the fact that we don't know how long these vaccines are going to protect. We, because of the Emergency Use Authorization, we only have two months of data. Are they going to protect for three months, three years, 30 years? We don't know. So, all the stars really have to align for that to happen.

The good news is with every passing month, life will get better in America. February will be better than January. March will be better than February. April would be better than March and so forth. So, we'll gradually see an improvement in quality of life.

HAYES: Well, we have not been on that trajectory in a while. So, I really hope you're right and really look forward to that. Dr. Peter Hotez, as always, great to talk to you. Thank you.

HOTEZ: Thanks so much, Chris.

HAYES: Next, with his White House Days number, the President reportedly eyeing some preemptive pardons on his way out the door. Why his kids would be on that list, after this.



TRUMP: The power to pardon is a beautiful thing. You got to get it right. You got to get the right people. I'm not above the law. I never want anybody to be above the law. But the pardons are a very positive thing for a president. I think you see the way I'm using them. And yes, I do have an absolute right to pardon myself.


HAYES: Not so fast there. I mean, the President is not a constitutional scholar as I think you would agree. And the pardon power is quite awesome in its breadth in terms of what the President can do. The power to pardon himself is questionable. That said, he does have the power to pardon a lot of his friends, maybe his family members. And it appears that's what he is currently discussing, according to some reporting that we've been tracking.

New York Times Washington Correspondent Michael Schmidt is one of the reporters who broke the news of that, that Trump has discussed with advisors' pardons for his three eldest children and Giuliani. Nancy Gertner is a former U.S. federal judge for the U.S. District Court of Massachusetts, now a senior lecturer at Harvard Law School. And both of them join me now.

Michael, let me -- let me start with you just about what we know about these conversations and discussions. You know, the President obviously says a lot of things all the time. This is the sort of question of like how serious -- how serious are we on the spectrum of these conversations?

MICHAEL SCHMIDT, WASHINGTON CORRESPONDENT, NEW YORK TIMES: I mean, look, you're right, the President does say a lot of things. But he also says things in private and has more serious discussions about things in private than he does in public. And we know that he spoke to Giuliani about this last week.

You have to recall that -- or obviously understand the context that Giuliani is at the forefront of these false claims, this outlandish campaign the President has undertaken to undermine the election results. And in the process of doing that, Giuliani and the President discussed a preemptive pardon.

The President has for some time expressed concern. What he says is based on concern that a Biden Justice Department would target his children. And he believes that would be retribution, political retribution against him is what he claims, and says that he needs to insulate his children from that.

As we know, if you are to be granted a pardon, it's essentially saying you're guilty of these crimes and cannot be charged with them. And so, there's an acceptance of essentially saying that these things have happened. So, in looking at these pardons, if they were to be given to the children, to Giuliani, there would be a certain level of guilt that would be placed on them.

HAYES: Right. Yes, well -- so, here's -- he said something today. So, Nancy, the President gave a Facebook speech today that was 45 minutes long, and a real detailed look at, you know, his conspiracy theory about the election. But he said something about his worries about New York prosecutors, I think reference to the Attorney General Letitia James, and Cy Vance, who's the Manhattan D.A. I want to play what he said and then ask you a question. Take a listen.


TRUMP: I've been investigated from soon after I announced I was running for president. Now, I hear that these same people that failed to get me in Washington, have sent every piece of information to New York so that they can try to get me there.


HAYES: OK, so here's my question. A pardon, a federal pardon only extensive federal crimes, right? Like, it wouldn't have anything to do with the Manhattan D.A. or the New York Attorney General. Am I wrong about that?

NANCY GERTNER, FORMER U.S. FEDERAL JUDGE: You know, it's only with respect to offenses against the United States. So, it wouldn't have any impact on Cy Vance. There's also an unintended consequence here, not only what Michael Schmidt was saying, which is that it would eliminate any constitutional protection for self-incrimination in a federal case.

Think about that for a moment. If you did anything after, future crimes, that escaped the pardon, neither he nor his kids would be protected by the privilege against self-incrimination and will be forced to testify.

HAYES: But it also seems to me that if -- look, if you're worried about New York prosecutors, right, as he appears to be, it doesn't seem like a weird -- like drawing a map with an arrow like maybe some crimes here to those prosecutors if you out of nowhere -- like, Eric Trump come in here, preemptive pardon. Like, it seems like you're drawing a roadmap for local prosecutors if you do that, right?

GERTNER: Who are you talking to? Me?


GERTNER: Yes. It's a -- it's a roadmap. But it's hardly a roadmap that he needed to say, right? I mean, they're being investigated, because they're being investigated. In other word, the pardon is not drawing a circle and saying, you know, indict me. They've already been in the in the mix according to reporting anyhow.

HAYES: Michael, there's also a question to me about the sort of internal mechanics by which this would happen. I mean, there's actually a position of pardon attorney at DOJ, and normally a process that's been completely, as far as I can tell, scrapped and bypassed in the Trump era. But even with that, you've got lawyers in the White House who -- I don't know. I mean, maybe they're all such sycophants they'd sign on to anything.

But I do wonder like, can the president just sit down and draft the order? Someone else is going to have to do it, right?

SCHMIDT: I mean, look, the President could write out a pardon himself and sign it. If he were to do it and to really want to insulate himself, he would want a lawyer to write it because a lawyer would write in a way that would hopefully ensure for the president that a judge would respect it.

I want to come back on Sunday, just hearing the President talk about, you know, these investigations and such. You know, the president says they didn't find collusion, they didn't find these different things. You have to remember, the three people closest to the president who could answer those questions, Roger Stone, Paul Manafort, and Michael Flynn, all had pardons dangled in front of them by the President.

HAYES: Right.

SCHMIDT: Trump is commuted Stone sentence, he's pardoned Flynn. And the question is, what is he going to do with Manafort? All three of those individuals never provided full cooperation to the government, these three people who pardons were dangled in front of. So, when the president says, you know, no collusion, you know, all these different things. Now, look, you can read the Mueller report and drop it from yourselves, but those people the closest ties that we know, were never fully candid with prosecutors as part of their cooperation.

HAYES: There's also this idea of the self-pardon, which seems like something the President has said before. Here's -- Nancy, this is -- this is Rudy Giuliani talking about the idea a few years ago. Take a listen.


RUDY GIULIANI, PERSONAL LAWYER OF DONALD TRUMP: The President of the United States pardoning himself would just be unthinkable. And it would -- it would lead to probably an immediate impeachment. President Trump has no need to do that. He didn't do anything wrong.


HAYES: I mean, impeachment is off the table at this point, Nancy, but it does seem the unthinkable part was the consensus at some point.

GERTNER: There's no question that this has never been tested, right? No president has ever tried to do that. So, there's no case law on it. So, we're going to have to deal as like originalist and focus on the language of the Constitution. And the language of the Constitution says the president shall have the power to grant reprieves or pardons. And most constitutional scholars will say the power to grant implies to someone else, not to himself.

HAYES: Right. That is very elegant. I like that. Michael Schmidt and Nancy Gertner, thank you both. I appreciate it.

GERTNER: Thank you.

HAYES: Ahead, the Republican senator stoking conspiracy theories of a stolen election while privately admitting he knows Joe Biden won. The growing MAGA delusion coming up.


HAYES: The collective psychotic break we are now seeing among an enormous faction of Americans led by the President is getting more disturbing, even if it grows weaker in its real-world ability to change the reality.

Today, in a bizarre -- I mean, deeply bizarre, sort of sad, pathetic rambling address from the White House that was released on Facebook, Trump gave us 46 minutes of allies, debunked conspiracy theories he's been peddling in hopes of somehow overturning the election.


TRUMP: We're leading by a lot. And then at 3:42 in the morning, there was this. It was a massive dump of votes mostly Biden. This is Michigan. At 6:31 in the morning, a vote dump. That batch was received in horror. Here's what is normal, and all of a sudden -- look at that, this is normal, normal. Look, even here, normal. And then boom, all of a sudden. Everyone is saying, wow, the evidence is overwhelming when they get to see it.


HAYES: Yes. The evidence is overwhelming that the voters of the cities of Detroit and Milwaukee didn't like you. And when those cities reported their votes, they came in against you. Meanwhile, far-right Alabama Congressman Mo Brooks said he planned to challenge the Electoral College vote when Congress certifies Joe Biden's victory. That's going to be a circus, I guarantee you.

In Georgia, a group of dead-enders led by Trumpist attorney Lin Wood and former Trump campaign attorney Sidney Powell, not clear, they held a "Stop the Steal Rally" in which they treated the very concept of reality as a nefarious deep state plot.


WOOD: I've looked at the real numbers. They won over 410 electrical electoral votes. They won -- damn won every state including California, 80-plus million votes. We're not going to let them steal our election. We're not going to let them steal our country. And we will die before we'll ever let them steal our freedom.


HAYES: It's not a great language. It takes real turn there in the end. Yesterday, we showed you Georgia Republican election official Gabriel Sterling's emotional appeal for the President, to the President, to condemn the attacks and the death threats on election workers warning someone is going to get shot.

In response, Trump tweeted, rigged election, and attacked Georgia's Republican Governor and Secretary of State. And the Stop the Steal crowd chanted for Governor Brian Kemp to be locked up as speakers on stage attacked Georgia election officials as corrupt criminals, lock him up, lock him up. It was always going to come this way, wasn't it?

Sidney Powell Lin Wood also telling the crowd not to vote for the two Republican senators now in a runoff that will decide control of the Senate if those senators that don't push to overturn the election results.


WOOD: If Kelly Loeffler and David Perdue do not do it, they have not earned your vote. Don't you give it to them. Why would you go back and vote in another rigged election for God's sakes fixing?


HAYES: That is great point. Don't vote in a rigged election. The insanity isn't just coming from some fringe players, congressional backbenchers, random social media users, OK. Michael Flynn, you remember who he is. He's a retired Army General, former director of the Defense Intelligence Agency, Donald Trump's National Security Adviser twice pleaded guilty to lying the FBI and was pardoned by the President.

And now, Michael Flynn wants that same president to essentially overthrow the democratically elected government of the United States. Flynn calling on Trump to declare martial law and temporarily suspend the constitution until we have a new election.

There are three categories of people right now on the American right. You have people who have stood up against the utter lunacy like Georgia Secretary of State Brad Raffensperger. And there's people like Trump and Sidney Powell, Lin Wood, and Mo Brooks, and Michael Flynn, and even Ted Cruz who are actively pursuing and cultivating this.

And then there's an enormous swath of Republicans who are just trying to wait it out, who biblically back the President's diluted mission while privately admitting Trump lost. And they admit they can't observe the reality of the Trump laws because it would be career suicide, to quote. And that's the category for Republican Senator Ron Johnson of Wisconsin. And we know this because our next guest says that's exactly what Senator Ron Johnson told him on the telephone. Stay with us.


HAYES: While the President and his campaign continued to perpetuate the insidious lie that widespread voter fraud won Joe Biden the election, there's still plenty of establishment Republicans, particularly senators who are just giving cover to that myth. Like, for instance, Wisconsin Republican Senator Ron Johnson, who just a few days after the election, refused to save he thought it was legitimate.

And then just yesterday, after the Attorney General of the United States, Bill Barr, comes out and said, there's no widespread election fraud, Johnson tells CNN "I think there is still enough -- there still enough questions outstanding, and they have to present evidence that there was no fraud."

But while Johnson is saying one thing in public, it seems he have been given up on the fraud narrative in private. We know this thanks to a piece published today on the Bulwark. Mark Becker who knows Johnson from his days as a county-level Republican chairman, recounts a recent phone call in which the -- with the senator. And according to Becker, the Senator told him he knows Joe Biden beat Donald Trump fair and square, but he won't admit it publicly because it would be "political suicide."

And Mark Becker, former chair of the Brown County Republican Party in Wisconsin joins me now. Mark, good to have you. And thanks for joining me. It was -- it was a really fascinating piece and I applaud you for writing it. Tell me about the context the phone call.

MARK BECKER, FORMER CHAIRMAN, BROWN COUNTY, WISCONSIN REPUBLICAN PARTY: Well, you know, it was -- yes, I think it was an interesting piece. It was an interesting conversation. So, yes, it was -- I wanted to reach out to Senator Johnson to just either -- I don't know if it was a fool's errand to see if I could sway him from stopping doing what he was doing, or just to pick his brain to see if I could, you know, try to get some other Republicans to just see the light a little bit. And so, it was really eye-opening to spend some time talking with him and hearing what he had to say.

HAYES: You know -- so, there's a distinction here to me, right, between someone's politics. Like, you could think that we should have like, get rid of -- repeal the income tax and, you know, privatized every service except for police and, you know, be the most right-wing person in the universe, but also, like, there wasn't fraud. Like, that's just a factual matter about whether there was fraud or not.

And I don't know whether these people believe their own myths or not. And my takeaway from your conversation is that Ron Johnson knows this -- the fraud stuff is nonsense. Is that -- what was your set?

BECKER: Well, that was -- that's the most frustrating part of this whole thing is like -- I mean, even if you don't believe what I wrote, that's fine. Don't believe that. But believe Donald Trump's own attorney general, just this one time though. Believe on this, one thing, that there wasn't enough fraud in this election to really overturn the results.

And if you don't want to believe what I wrote, that's fine again, but believe that people, the Republican elected officials, or the election officials in battleground states that are saying the same thing. Joe Biden won full stop. And Ron Johnson knows that, but he's -- you know, he's decided the political calculations is too great that he doesn't want to take those people off. So that's what's happening.

HAYES: So, you -- but you said to him, like, do you know that Biden won?


HAYES: And he -- and he said, what?

BECKER: He said, well, sure, I know, Joe Biden won but, you know, that's not -- that's just one of those things. That he was the worst candidate for president in the history of the country and I was like, well, what does that say about your guy? But you know -- so it's like -- but you know, yes, Ron Johnson knows the truth.

And what's sad about it is he knows the truth, but he doesn't think the American people deserve to hear it.

HAYES: Right. So, he said it would be political suicide. So, you said to him, why don't you come out and say that? And he said, what?

BECKER: Well, there was, you know, 1.6 million people in the state of Wisconsin voted for Donald Trump. And so, that is the people, that is the crowd that he feels that he represents. And, you know -- and I said, well, you know, you're the senator for all of Wisconsin. So, it's a frustrating thing to have that conversation and then see what he says in public. It's so different than what he told me on the phone.

HAYES: You know, it's interesting, too, because one of the things he told you that stuck out to me -- I always wonder, like, what are the people think the game plan is here? And he was like, well, you know, according your article that he said, we have strong institutions. That basically, the institutions are strong enough that we're all going to cultivate this mass delusion with him because it's not going to work, essentially.

But like, what -- did you get a sense of what the endgame is here? Like, at some point, it's not like Trump is going to admit he lost. So, it's like, are you going to keep this up?

BECKER: I think the end game is -- you know, you said it earlier is that they're just trying to wait it out. And I mean, we've been waiting it out for four years for this to be over. And so, now, when we finally have an opportunity for this to literally be over, they're not taking it. And that's so incredibly frustrating.

HAYES: Yes. Did it give you any -- I mean, it seems to me like this is just a very cynical calculation in the end. And it basically is a cynical calculation that literally dozens to hundreds of Republicans are making.

BECKER: Oh yes. Yes. I mean, there are Republicans all across the country doing the same thing. So, I mean, Ron Johnson isn't in -- isn't unique in this -- in this area. It's -- this is being done -- I mean, you said it, Ted Cruz and I mean, a lot of them. So, this is -- it's frustrating because it is so many of them doing the same darn thing. And it's -- and it's undermining, you know, the most sacred part of our democracy, which is the sanctity of our vote.

HAYES: Yes. Well, I hope Mark Becker gets more conversations with Republican officers. I think this is probably -- I think this is probably -- yes, this is a good -- it's a good for one ride stick here, Mark Becker, but I do -- I do appreciate it you doing it and coming on the program. Thank you very much.

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


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