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Transcript: All In with Chris Hayes, November 10, 2020

Guests: Sherrilyn Ifill, Chris Lu, Andrew Weissmann, Xavier Becerra, Olivia Troye, Peter Hotez


Secretary of State Mike Pompeo promises a smooth transition to a second Trump administration. Joe Biden in an interview said that President Trump's refusal to accept loss is an embarrassment. After President Trump's loss, the Republicans argue that voting should be harder for the Americans or no Republican candidate would be elected. Attorney General Barr is using the Department of Justice to help President Trump stay in office. The U.S. hit another record today with 13o,000 new COVID cases.


EVA LONGORIA, ACTRESS: And first up, we have a fight in Georgia. So, I'm going to see you all in Georgia.

JOY REID, MSNBC HOST: Yes, yes, let's do it. Well, I wish we had more time. Eva Longoria, thank you so much for being here. I really appreciate you. And we are in this fight.

LONGORIA: Thanks, Joy.

REID: Thank you so much. I mean, that is tonight's REIDOUT. "ALL IN WITH CHRIS HAYES" starts now.



UNIDENTIFIED FEMALE: Sir, what do you say to the Americans that are anxious over the fact that President Trump has yet to concede and what that might mean for the country?

JOE BIDEN, PRESIDENT-ELECT, UNITED STATES: Well, I just think it's an embarrassment.

HAYES: The transition of power continues as does the state of denial.

MIKE POMPEO, SECRETARY OF STATE, UNITED STATES: There will be a smooth transition to a second Trump administration.

HAYES: Tonight, how too much democracy is a growing problem for the party of Trump. Then, former Mueller prosecutor Andrew Weissmann on Bill Barr's attempt to spin a false narrative on voter fraud.

Plus, the Supreme Court. Here's the Republican case to end ObamaCare. And as the pandemic keeps breaking records, why is the head of the White House Task Force taking a vacation? When ALL IN starts right now.


HAYES: Good evening from New York. I'm Chris Hayes. Coronavirus cases in the United States continue to spike in an astonishing alarming rate. According to the COVID Tracking Project, which we've been using over time, there were over 131,000 cases in the U.S. just today. That is yet another single-day record for the U.S. It is a record for the world.

More significantly, those blue peaks there in the middle that we've talked about, that's hospitalizations. They don't depend at all on testing numbers. We know many people are in hospitals. That hit a record high today, an all-time record high. More Americans are hospitalized right now as I speak to you for COVID than ever before. 62,000 Americans in hospitals suffering with Coronavirus tonight, while the death count hit its highest number since August 19th and will no doubt go higher.

The head of the Coronavirus Task Force, Mike Pence, has decided to take a vacation. And all this adds even more urgency to the presidential transition that is being delayed in the middle of this devastating pandemic. As you know, we are nearing the final vote tally. President-Elect Joe Biden defeated Donald Trump in the 2020 presidential election actually quite decisively.

The numbers show Biden with state leads that are not going to be overcome by recounts, certainly not in five different states he flipped. Biden is likely to end up with 306 electoral votes. But from the perspective of a popular legitimacy, what did the American people say On Tuesday. He is probably going to win by four points. He's up by 4.5 million votes with millions more to come in from states like California and New York. He might end up winning by six or seven million votes.

Now, there have been numerous drawn out narrow elections in American history, starting with the election of 1800 and the 2000 election. It's been talked about over and over for the past week. Back in 1876, the election was so close, it was decided by Congress. This is not one of those elections. Hear me loud and clear. That's not what we're dealing with right now.

What we are dealing with is one of the two major parties refusing to accept a Democratic Party victory as legitimate. And the message has been sent from Trump and Trump TV on down for months now, the only way Democrats could win would be by cheating.

And so now, we are faced with this extremely dangerous and unnerving, bizarre middle space where the best that can be said is that Trump, the Republican Party, and their allies, would try to overthrow the democratically elected government and steal the election if it were closer, if they could figure out the right way to do it, but it's just not close enough for them to do it this time.

Some Republicans are acting like Trump's behavior is a big joke. One senior Republican official told The Washington Post "What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change. He went golfing this weekend. It's not like he's plotting how to prevent Joe Biden from taking power on January 20th. He's tweeting about filing some lawsuits. Those lawsuits will fail. Then he'll tweet some more about how the election was stolen and then he'll leave."

I mean, that's probably true. And yet, earlier today, Secretary of State Mike Pompeo at of all things the inauguration of the Center for Freedom and Democracy at the Ronald Reagan Institute, from the podium the State Department loves to use to lecture other countries about accepting the results of elections, did this.


UNIDENTIFIED MALE: Is the State Department currently preparing to engage with the Biden transition team? And if not, at what point does it delay hamper a smooth transition or pose a risk to national security?

POMPEO: There will be a smooth transition to a second Trump administration, all right. We're ready.


HAYES: Was that a joke? It's a bad joke. Or maybe it's not a joke, I don't know. While, leaders from around the world who understand who won are congratulating President-Elect Biden, Trump and the Republican Party continue to do things like file an insanely frivolous lawsuit in Pennsylvania that wants to retroactively invalidate all mail-in votes in Pennsylvania. For real. It's the actual suit they're filing.

Georgia's entire Republican delegation, all of the elected officeholders in Congress, sent a letter to the Republican Secretary of State in Georgia who they are mad, didn't oversee the election that stopped democrats in voting, and they alleged serious allegations of voting irregularities with no evidence whatsoever. And those voting irregularities somehow only impacted the Republican candidates who did not win outright.

Now, keep in mind, this includes a bunch of people who were just reelected that letter. They're saying their elections were finally legitimate, but the other races were Democrats did better are illegitimate. So far, only four Republican senators have congratulated President-Elect Biden on his victory. Retiring Senator Pat Toomey of Pennsylvania just moments ago saying that he thinks that Biden is going to win, yet the General Services Administration arm of the federal government refusing to fork over the money necessary for office space to begin the transition.

The Washington Post reports the White House has told federal agencies to plan for the Trump administration's budget proposal for next year. You have Attorney General Bill Barr setting itself -- setting up an interestingly worded but really quite disquieting note about the Department of Justice stepping into an election before results are certified to look into voter fraud. That led to the resignation of the director of the Election Crimes Branch who was a decorated Justice Department veteran.

And then perhaps most worryingly, a day after firing Defense Secretary Mark Esper, Trump has moved a series of loyalists into critical positions throughout the Pentagon. As NBC News Political Editor Benjy Sarlin pointed out, "The emerging argument of yes, the President and his allies want to overturn the results of an election and would do so in a heartbeat if at all possible, but it's not like they actually can is not exactly very reassuring for the future democracy."

At a certain point, if you're just trollingly pretending to be engaged in a coup, when do you cross over to actually trying for a coup? Speaking at a press conference this afternoon, President-Elect Biden dismiss the Republican attempts to delegitimize the election.


BIDEN: The ability for the administration in any way by failure to recognize and submit to our win, does not change the dynamic at all at what we're able to. I just think it's an embarrassment, quite frankly. The only thing that -- how can I say this tactfully? I think it will not help the President's legacy.


HAYES: It's not going to work. And they're not winning, they are losing badly and flailing. But what they are doing is wildly destructive and nihilistic even. It's no surprise we've ended up here, or that so much the Republican Party, all of it. And I mean, like a whole conservative architecture and all the lawyers of these law firms, like Jones Day that are participating it and all the staffers, all the people that are part of this enterprise, are going along with it.

I mean, it has been a core belief of the conservative movement and many of the Republican Party for literally more than a decade that there just is no such thing as legitimate, democratic rule by the Democratic Party. They can't legitimately win.

I mean, let's remember, the reason Donald Trump became a national figure in conservative politics was his elevation of a deranged conspiracy theory that the last Democratic president who won a resounding victory was actually secretly illegitimate. And everyone from Mitt Romney to Fox News played along because they didn't want to upset the people in the base. Let them have this. And now here we are.

Someone who I really trust take a clearer view of all this, Sherrilyn Ifill, President and Director-Counsel at NAACP Legal Defense Fund. Her new piece in Slate is headlined no -- headlined "No, this election did not go smoothly." Sherrilyn, what are we watching happen? Where are we at right now?

SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE FUND: Well, Chris, we're in a very dangerous moment, I think, right in this moment between the administrations. Trump is still the president. There is only one president at a time, and he carries enormous power in that position. But more importantly, it's the -- it's the people around him and the people in Republican leadership who have refused to do what I think is the most important thing at this moment, which is to recognize the importance of leadership and speaking in a way to the public, to the American people about our elections, about the transfer of power, about the rule of law.

These laws and that -- you know, the Pennsylvania lawsuit suggesting somehow that mail-in balloting is unconstitutional -- mail-in balloting has been with us since the Civil War. It's -- this is -- this is a continuation and this is my concern of a kind of bending of the notion of law in a way that suggests that it is only what you say it is for your political ends.

HAYES: Right.

IFILL: And we see that happening with Mitch McConnell, and we see that happening with leadership that I think is really creating a very dangerous moment in this country.

HAYES: You know, it's so clear that the allegations of fraud have been ridiculous. They have -- you know, there's the example of the ballot challenges in Maricopa County, the Trump administration actually file about 180 ballots. That's just what they challenge is a 14,000 vote margin. I mean, all of this is just not intended to be serious in a legal sense.

We've got news now that a pollster worker who they all -- the President's own campaign spokes -- White House spokesperson tweeting this story, you know, whistleblower, that the Post Office was backdating ballots, admits fabricating allegations of ballot tampering, the official say. But in some ways, all this is just poisoning the well. And you can't take the poison out of the well when you run the follow up story that says it was fabricated.

IFILL: And remember the random factor. This is not about you and me, Chris. This is not about lawyers at law firms. This is actually even not about political party leadership. This is about the rank and file, the 70 million people who support the president, who believed that his leadership was good leadership and we're signed up for four more years of it. A portion of whom are quite volatile, some quite dangerous, who are being led to believe the outcome of this election is illegitimate.

And they have no control over what those people will do with that information. And frankly, they are deliberately stoking that part of the population. So, when I see this call for a march on Saturday, this is dangerous stuff. And for those who are saying we shouldn't worry about it because there's nothing Trump can do about it, and who are sanguine, I'm not sanguine because I have seen the rise of hate crimes over the last four years. I have seen the deaths of so many people who have been killed as a result of extremists. And we have seen what it means when you try to delegitimize leadership. We can't get anything done.

Chris, go to the top of your show. While all of this conversation is happening, while Mitch McConnell is making these speeches, he's still moving through judges, by the way, but he's not passing a COVID relief bill.


IFILL: And so, tens of thousands of people are facing eviction and 70 percent of ICU beds in the country are full. It's not a game and it's not a joke.

HAYES: It's not a game and it's not a joke. I want to play this for you because I think you and I both know that the fraud stuff is completely fabricated. It's essentially chump. They know that. They, I think, even know that. What the real objection is that we let too many people vote, that voting was too accessible, and too many people voted and that's bad. And you actually have people saying this.

Lindsey Graham basically says it and Victor Davis Hanson who's on Trump TV the other night just comes out and says it. I want to play for you them sort of admitting what the real issue here. Take a listen.


VICTOR DAVIS HANSON, POLITICAL COMMENTATOR: 30, 40, 45 days before the election, you can keep voting casually. You go in vote, maybe not any day, there's no one day you vote. It's a transition from a rugged individual who has to take a responsibility to know the issue, show up on Election Day unless he's working or she's sick, and then turning it into sort of an entitlement.

SEN. LINDSEY GRAHAM (R-SC): Mitch McConnell and I need to come up with an oversight of mail-in balloting. If we don't do something about voting by mail, we're going to lose the ability to elect a Republican in this country.


HAYES: That saying it. It's too casual, people can vote too easily. And if people vote by mail, we can elected Republican because it depends on not enough -- not many people voted.

IFILL: So, now let me turn to the part that's infuriating, Chris, that if you are a Black voter and the Legal Defense Fund, we have spent months trying to improve absentee voting opportunities for Black voters and disabled voters who are susceptible to COVID-19 infection and death. And you know, what you waited in line during early voting or you faced voter intimidation during early voting as so many Black voters did in all kinds of polling places in Florida and other states. It was not casual. And that's what my Slate piece is about. It's about the obstacles that Black voters overcame to participate in this election at record high levels.

And this is why this becomes then infuriating because we're having a ridiculous conversation about voter fraud that is part of the same myth of voter fraud that has been perpetuated for more than a decade as a justification for things like voter ID laws, voter purges, and other methods that are designed to disenfranchise Black voters.

And instead of talking about what we should be talking about, which is why Black voters had to overcome all of these hurdles to participate in this election, we're playing this game with this myth of voter fraud that's basically used as a way of holding on to political power.

HAYES: Sherrilyn Ifill of Legal Defense Fund, thank you so much for joining me tonight.

IFILL: Thank you, Chris.

HAYES: I want to bring in a former White House Cabinet Secretary and Deputy Assistant Secretary of Labor Chris Lu who's the Executive Director of the 2008 Obama Biden transition. He's just been named the Biden-Harris transition team working with the Labor Department transition.

Full disclosure, Chris, I should say, you hired my wife on the transition back in 2008 when you guys were above a subway in Washington D.C. Tell me about what does this mean this moment? I mean, I thought that Biden's perspective here which was sort of swatting away the flies, was proper messaging. How much does this become the beginning to become a problem just logistically in standing up a transition?

CHRIS LU, FORMER CABINET SECRETARY, WHITE HOUSE: Chris, let's take a historical perspective on this. This is not a game. It's not a partisan food fight. This is a gross violation of a historical norm. We have had the peaceful transfer of power in this country for 200 years, through war through depression, when there have been bitter adversaries who have fought a really difficult political battle. None of those did we know who the GSA administrator was, and none of these was an issue about ascertainment.

And what's important here, it's not just the cooperation around getting the economy back up and running, about dealing with COVID. But this transition period, in general, always is a tenuous time from a national security perspective, from a homeland security perspective. The 9/11 Commission found in 2000 that delay in the Bush team getting their people into national security positions created a vulnerability.

We know that in 2009, that there was a terrorist threat on inauguration day that had to be coordinated between the outgoing Bush team and the incoming Clinton team. So, this is not a game. And this really endangers security. And the American people need to take this seriously.

HAYES: What matters here in terms of the levers? I mean, at one level, it's a strange liminal space. I mean, the law is the law. These elections are going to be certified. The lawsuits are nonsense. They're going to -- they're not going to prevail in court. But the President right now, like, what do you make of what he's doing? What are they doing at DOD?

I mean, at one level, OK, he wants to put his Stooges in the, you know, top levels of the United States Pentagon, I guess. But what are -- what is that -- what is that?

LU: Yes, I mean, none of this makes any sense. Look, you may not be happy with Mark Esper, but to basically boot him to the sidewalk 70 days before he would have had to leave otherwise simply because you weren't happy that he wouldn't call troops out on peaceful protesters seems just like revenge.

And this move to put loyalists in there really can only be seen as possibly setting up this, you know, if we somehow figure out a way to run the table in these lawsuits in these four or five different states, and we can somehow flip several million votes, we can then take power and we're going to put our loyalist in. None of this makes any sense at all.

It almost has to feel like if Donald Trump is not going to win, he's just going to burn the entire place down on his way out of office.

HAYES: Well, and then, what are the implications there? I mean, look, you know, again, Kate, who worked on the transition, had this great piece in The Atlantic basically talking about the fact that, you know, the law directs civil servants to work towards peaceful transition of power, independent of whether President says, their fidelity and duties to the United States Constitution, to American democracy and its continuance. I mean, are you -- do you have faith that those tracks are going to proceed as needed.

LU: I do have faith that if career officials are allowed to engage with the incoming transition team, that we can have a successful transition. You know, it is -- transitions are kind of a remarkable thing. We do this every four or eight years. And on one day, at noon on January 20th, several thousand political appointees leave, and then several hundred new ones come in.

And the fact that we've been able to pull this off every four or eight years is really testament both to this norm of peaceful transfer of power, as well as to the experience and dedication of career civil servants who are keeping the trains running on time. And so I have faith that they can do their job. We can pull this off. But ultimately, the tone gets set by the top.

HAYES: All right, Chris Lu, who is an expert on these transitions working on this one as well, thank you for your time tonight.

LU: Thank you.

HAYES: Next up, Bill Barr drags the Department Justice into the President's baseless claims of widespread voter fraud, authorizing lawyers to launch investigations inside the Justice Department. The dangerous enabling of the president after this.


HAYES: Yesterday, Attorney General Bill Barr sent out a memo to DOJ employees that gave the OK to investigating supposed voter fraud while votes are still being counted and the results are not yet certified. "Such increase in reviews may be conducted if there are clear and apparently credible allegations of irregularities that if true could potentially impact the outcome of a federal election in an individual's state."

But while the memo appears to have been designed to reassure Donald Trump and other Republicans making baseless accusations, it crossed a major red line for one high-ranking Justice Department official. Richard Pilcher is the director of the Election Crimes Branch of DOJ. He resigned from that position in protest shortly after Barr's new policy was released. Writing to his colleagues, "Having familiarized myself with the new policy and its ramifications, I must regretfully resign from my role as director of the election crimes branch."

That does not bode well for the Department of Justice's role in getting Trump to accept the election results and hand over the reins of power. Andrew Weissmann is someone who is quite familiar with William Barr's successes in creating false narratives. He was the lead prosecutor for the special counsel's investigation of Russian interference. His insight, account of the investigation is where law ends inside the Mueller investigation.

Andrew, what's your reaction? I know Rick -- I know Mr. Pilcher has a sterling reputation inside the Department of Justice to seeing his resignation.

ANDREW WEISSMANN, LEAD PROSECUTOR, MUELLER SPECIAL COUNSEL'S OFFICE: My reaction is this is the latest example of Bill Barr's handiwork. And it's a real parting shot that is quite dangerous as his other examples are. It's worth people remembering it is not normal to see career people resigning. And this is just the latest example of that.

But this memo is quite dangerous in what it potentially portends. The thing that you noted, Chris, is it really changes the timing of such investigations. The policy of Department of Justice prior to yesterday was that these election investigations were done after not just the voting, but after the certification. the remedy was not to undo elections. That was not -- that was left to the states to figure out what kind of penalties there should be and how to deal with that situation. The federal government did not go into that area.

And this basically says, no, no, no, we are going to allow the timing to happen now prior to certification that so that we can start tampering with the results of an election. So, it really changes the role of the Department of Justice during these investigations. So, I can understand why Mr. Pilcher resigned.

HAYES: Yes, that seems to be the red line. He said some of that letter that had abrogates this 40-year policy, right, that you can't -- you just cannot have, you know, the Department of Justice or the FBI running around as votes are being counted, you know, putting a thumb on the scale.

And in the one example we have where we did have systematic fraud and abuse in which one candidate tried to steal an election, that was a Republican special congressional election in North Carolina in which the Republican campaign did that. It was the local board of elections that refused to certify and then the indictments about it came much later after the -- you know, after the investigations had been done.

WEISSMANN: Well, you have to remember, coming from the special counsel's office, there's another irony here, which is Bill Barr was certainly no fan of election interference and in terms of, you know, doing the investigation into Russia's interference with the election. But he seems to be full bore on these premature investigations with no evidence in this situation. So, you know, the irony, certainly to someone like me is palpable.

HAYES: Yes. Listen to what he had to say back at his confirmation hearing. This is -- this is William Barr talking about the role of the Department of Justice and elections and staying out of that thicket. Take a listen.


SEN. JOHN CORNYN (R-TX): Why is it that the Department of Justice rules which also applied to the FBI, make it clear that our chief law enforcement agencies in this country should not get tangled up in election politics? Are there policies in place that tried to insulate the investigations and the decisions of the Department of Justice and FBI from getting involved in elections?


CORNYN: And why is that?

BARR: Well, obviously, because the incumbent party has their hands on the lead -- among other reasons, they have their hands on the levers of the law enforcement apparatus of the country, and you don't want to use it against the opposing political party.


HAYES: Oh, the incumbent party has their hands on the levers of law enforcement apparatus of the country and you don't want to use it against the opposing political party. I mean, you know, the least charitable reading of this memo he sends out is basically a go get them to the Trumpiest U.S. attorneys of the 93 districts to go do your thing.

WEISSMANN: Absolutely. So, Chris, one of the things that's important for people to know is it used to be that you would, that is prior to yesterday, that the career officials, non-political appointees would oversee and approve these types of investigations. And the Barr memo pointedly says that the United States attorneys, 93 political appointed U.S. attorneys around the country can decide for themselves whether to open an investigation.

And the threshold for opening the investigation is notably lower than it had been. All that you need under the Barr memo is irregularities. I was actually dumbstruck by that. In order to open a criminal investigation, it can't just be some non-criminal irregularity, you're supposed to need some criminal predicate, not a mistake, not something negligent. But that's not what Barr's memo says. It says all you need is some irregularity to open an investigation.

HAYES: Wow. It's really astonishing. You know, again, I think things are holding, but they're only holding because a lot of people are making the right decisions in the face of people at the top who are making decisions that fundamentally collude with the most evil impulses imaginably. Andrew Weissmann, thank you very much.

WEISSMANN: You're welcome.

HAYES: Next, the case to strike down the ACA went before the Supreme Court today and two of the conservative justices did not seem like they were buying it. What they said, what it means to the ACA after this.


HAYES: So, the fate of the Affordable Care Act was before the Supreme Court yet again today. If you've heard me say that before, it's because it's been there a few times. And today, it's important to think about the context here. What are the two things that the McConnell, Paul Ryan, Donald Trump unified government tried to do? Well, they tried to repeal and replace the ACA. You might remember that. They failed multiple times. John McCain going thumbs down at 1:00 in the morning.

And then they passed that big tax cut. And when they passed the tax cut, they actually got rid of what's called the mandate penalty. That was the part of the ACA that says if you don't buy health insurance, you have to pay a tax penalty. And then using that, a bunch of Republicans rushed to court to kind of construct a constitutional or statutory interpretation Rube Goldberg Machine whereby them successfully getting rid of the mandate tax means they'd actually repeal the ACA even though they had very clearly failed to do that in front of all of us watching.

That was the case before today. The Texas Solicitor General arguing before the court that it was time to just get rid of the whole ACA, the whole kitten caboodle, all those projects protections for people with preexisting conditions and staying on your insurance and insurance regulations, 2,200 pages of settled law that's been humming along the system, just scrap it all because the mandate is not there. The argument came up against some resistance. Take a listen.


KYLE HAWKINS, SOLICITOR GENERAL, TEXAS: There's no basis to ignore the words that Congress enacted and that remain operative today. The proper course is to take Congress at its word, and declare the mandate unconstitutional and inseparable from the remainder of the ACA.

JOHN ROBERTS, CHIEF JUSTICE, U.S. SUPREME COURT: General Hawkins, on the severance question, I think it's hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that's not our job.


HAYES: The State of California who argued to save the Affordable Care Act at the Supreme Court today, and California's Attorney General Xavier Becerra joins me now. Attorney General, how do you think arguments went today?

XAVIER BECERRA, ATTORNEY GENERAL, CALIFORNIA: Chris, I am measuredly optimistic. Let's put it that way. Let's put it this way. I think you just gave a layman's presentation of the case which is a lot easier to understand than what the attorneys have to argue before the Supreme Court. So, I would take your argument and shop it around the country. I think you explained it very well.

HAYES: Well, I thought Mike Mongan did a pretty good job for himself. But I guess my question to you is, you've got a few different issues here. So, let's just take them. I mean, the case is sort of facially absurd, so let's just put that aside, because I think it's ridiculous it's even there.

There's a question of standing, which is, can the people suing about this, actually -- do they have grounds to actually be in court because what exactly is the injury here? What remedy you need, because there's no longer a tax mandate? And it seemed like your arguments on that found some sympathetic hearing. What do you think of that?

BECERRA: Yes. As I said, I think you've just argued it. We didn't have as much emotion dripping from the way Mike Mongan made the argument before the court. But essentially, that's what we're saying. If the tax on the individual mandate has been reduced to zero, so no one will pay anything, how are you -- how are you harmed?

And so far, Texas and the federal government, the Trump administration, have never given us clear sense of how anyone was harmed.

HAYES: Then the bigger question, the one that you heard in that -- in that exchange, and came up a lot of our arguments today is a notion of severability, which is OK, let's say the mandate no longer has to die, does the rest of the law have to die too. And there was a lot on that today. What's the argument the state of California and others are presenting to separate them so that they don't have to be together?

BECERRA: Well, it's a stretch first, as you said, to find that there was any harm so they're standing. Then there's a stretch to say that a lot at twice has gone before the Supreme Court all of a sudden now is unconstitutional. But then the real stretch, as you pointed out, is that the 2017 Congress, which passed a tax break bill meant to reduce the tax on the individual mandate to zero, at the same time meant that it also wanted to get rid of preexisting condition protections, get rid of the support for seniors on Medicare when it comes to prescription drugs, get rid of the support for 26-year-olds and under who stayed on their parents' health insurance.

Nowhere in the debate or discussion or any language in the 2017 tax cut bill was your language about getting rid of all of the Affordable Care Act. So, it's clear it's a stretch that they're trying to have this court sign onto.

HAYES: It's so wild because it's not like we got to take up the Ouija Board to figure out what the founders meant. Like, they're right there. We all watch them. You can go talk to Ron Johnson --

BECERRA: Mike Mongan argued this and let you have some minutes of time to argue it.

HAYES: It's not -- this is -- this whole idea of what did Congress mean. Go -- I don't know. Go talk -- get there, right there. Well, I mean, I guess the last question here is the sort of dog that caught the car question, right, which is Republicans panic that they're going to win this case and said, don't you worry your pretty little heads about it. Amy Coney Barrett would never vote to overturn. And the Solicitor General of Texas today saying, look, maybe if they've strike it down, they could stay it pending some replacement. Like, what's the plan if you pull out all of America's healthcare regulations at once?

BECERRA: And that's the thing. There is no plan. And thank God when we have Joe Biden as President, we're going to improve on the Affordable Care Act, not try to dismantle it. And that's where we need to go. Americans right now under COVID need health care. Americans would have died without the Affordable Care Act. And a whole bunch of Americans who lost their job and with that job, their insurance now have insurance through the Affordable Care Act. We need this. It's time to move on. We can't afford to risk this. This is about saving lives.

HAYES: All right, Xavier Becerra who is the Attorney General of the state of California, thanks for making time for us.

BECERRA: Thank you.

HAYES: Ahead, Coronavirus outbreaks are just raging across the country. We're running out of words to describe it. What it is like in the places where it's hardest hit, where hospitals are at capacity, and morgues are filling up, after this.


HAYES: While many of us were distracted by the presidential election, the Coronavirus continued to spread exponentially across the country, smashing old records and creating new ones. The U.S. had a record 62,000 hospitalizations today. That's the most people that have been hospitalized in the country for COVID one time.

This map shows the average daily cases per 100,000 people. You can see that Midwest outbreak there, the dark, dark red. That indicates more than 55 cases per day per 100,000 people. And we're seeing warning signs of the virus spreading rapidly there. This was the scene at a testing center in Milwaukee today. They have consistently been seeing more than 2,500 people driving in for a test each day this week, with about 18 percent of tests statewide coming back positive. That's very high. The WHO wants it to be around four or five percent.

In nearby Michigan, an emergency room doctor shared his observations about how the health care system is holding up under all this pressure.


UNIDENTIFIED MALE: It's Dr. Rob here. Just got done working a shift in the area. I just wanted to let you all know that COVID-19 is just raging. It's still here. We've got patients being transferred hour and a half away. We got patients waiting five, six hours to get into a bed because so many hospitals including mine, including every hospital in the vicinity, they're all full.


HAYES: El Paso, Texas is also in the midst of just brutal situation. So many people in El Paso are dying in that community. They've just run out of space in the county morgue. They've resorted to using mobile mortar trailers. We saw this back in April in New York City when New York City was having the worst outbreak anywhere in the world. The county judge of El Paso has ordered non-essential businesses shut down in an effort to try to slow the spread.


RICARDO SAMANIEGO, COUNTY JUDGE, EL PASO, TX: It's very difficult just sitting here and knowing that there's a -- in this whole place, there's 154 bodies right now, inside and in this trailers. Being in El Paso and born and raised here, and know that in our spending community, the burial is such a big part of our of our lives, celebration of life, and to see that we're storing bodies, and that people are still not understanding the stay at home order.


HAYES: The state of Utah, it remains in a state of emergency tonight. As the virus surges, hospitals are becoming overcrowded. These images are from the intensive care unit at the Intermountain Medical Center which is outside Salt Lake City, which is over 90 percent capacity.


EDDIE STENEHJEM, INFECTIOUS DISEASE SPECIALIST, INTERMOUNTAIN MEDICAL CENTER: We're a large system. We can move patients around. We can find beds for patients. The unsustainable part is the caregivers. We don't have enough caregivers to manage the increasing amount of patients. And we know that even if transmission stopped today, our hospitalizations would continue to rise for weeks.

Our caregivers are strong. They're incredible people, but they're tired, they're fatigued. And they're often frustrated and angry when they go out in their communities and see people not heeding the advice of public health experts, because we know that's going to lead to transmission, that's going to lead to more patients in the hospital and more unnecessary deaths.

We have to be hopeful. We have to be optimistic. And yes, I think this will turn around eventually. I think it's really a matter of how many people are going to die until that happens.


HAYES: How many people are going to die before that happens? We're going to have more on the fight against the virus and the vaccine efforts that are being jeopardized right now by Trump's refusal to acknowledge Biden's victory. That's next.



DR. MICHAEL OSTERHOLM, EPIDEMIOLOGIST: What America has to understand is we are about to enter COVID hell. It has happened. I don't think America quite gets this yet. This is going to get much worse. This is not to scare people out of their wits. This is to scare people into their wits to understand that. We're going to look back one day and say to ourselves, oh my god, 100,000 cases a day. I wish we were back there at that point.


HAYES: Dr. Michael Osterholm is part of the new COVID task force that Joe Biden has already assembled to fight the virus on day one of his administration. As COVID cases continue to climb across the country, nearly 131,000 new cases today alone a single-day record. Trump's refusal to acknowledge Biden the victory is hamstringing anti-COVID efforts including the distribution of a possible vaccine.

As former Pence COVID task force member Olivia Troye points out in a new piece for NBC News Think, the Trump ministration has stopped all transition efforts, activities, and funding. That will slow if not completely halt efforts to get vaccines to the American people.

Olivia Troye joins me now along with someone who has extensive experience with vaccines for whole range of diseases. He's actually working on a COVID vaccine right now, Dr. Peter Hotez, Dean of Baylor College of Medicine's National School of Tropical Medicine. He's co-director of Texas Children's Hospital Center for Vaccine Development.

Olivia, let's start on this sort of -- this sort of day by day logistics in front of the country right now and the transition. A really promising data from Pfizer, we're expecting and hoping other vaccine makers in a similar place, then you got to get the vaccine out to people. And my understanding is the federal government is planning on playing a big role. How important is a handoff in that logistically seamlessly from one administration to another?

OLIVIA TROYE, FORMER AIDE, WHITE HOUSE CORONAVIRUS TASK FORCE: Chris, it's critical. There's no time to waste. And it's unfortunate that the teams aren't being able to -- they're not allowed to breath and they're not undergoing the proper transition that would normally happen during this period so that the Biden administration can hit the ground running in January.

We're going into a really dark time right now, as you've heard the doctors say. And this vaccine, once it's ready and it's safe and effective, we're going to have to have those plans implemented. And what we don't want is the Biden team to waste time having to redo efforts or they should be able to see what the -- what the work is done, and be able to implement it.

HAYES: Dr. Hotez, I remember having you on four to six weeks ago, maybe. And we were talking to the vaccine, and I was I think, trying to find some silver lining, some reason to be upbeat, and you ended the segment by saying the winter is going to be horrible. And it's wrong in my ears ever since. I'm running out of words to describe where we're at. Where would you describe where we're at?

PETER HOTEZ, CO-DIRECTOR, TEXAS CHILDREN'S HOSPITAL CENTER FOR VACCINE DEVELOPMENT: Well, Chris, like you, I'm also running out of words. This -- what's unfolding right now is a true humanitarian catastrophe. And in my moments of despair, I call it a slaughter. What we're seeing now are surges on intensive care units across the country. You showed us Utah and then a Paso, Texas, all up in the northern part of the Midwest.

And the reason those surges are so important to point out is when you start overwhelming ICU staffs in emergency rooms, we saw this in New York and in Europe earlier this year, that's when mortality really starts to skyrocket. As staff gets exhausted, you don't have enough trained hospital staff.

And this is what we're seeing. We're going to replicate what occurred in New York City in March and April in multiple places now across the country, and with no, no leadership, with no one in the White House guiding any kind of federal response. So, the numbers will continue to climb.

You have my Mike Osterholm on before. You know, he says 100,000. We're already now at 130,000 reaching pretty much every day. We'll be at 150,000. And the deaths, were probably, according to the Institute of Health Metrics, looking at 400,000 deaths after the inauguration, which would be one of the probably the largest public health catastrophe in modern U.S. history.

All of which could be prevented, and we don't have to lose all of those lives. We could stop this right now if we had the federal leadership. And that's what's breaking my heart. And one of the reasons I'm out there every day trying to do what I can to get some bipartisan support to stop the -- to stop the surge, to stop the hospitalizations, ICU admissions and deaths that will surely follow.

HAYES: You know, one of the most difficult things, Olivia, to sort of look -- when you're looking at this is to conclude. And I think it's pretty clear that like what we're seeing now is an active policy choice from the White House. Like, Scott Atlas really believes in the theory that we should let the virus go. That the costs of mitigation efforts are too high, that people have to get back to normal, that you can't let it dominate your life. The President believes with him.

And this is -- this is not -- what we're seeing is not a mistake. It's not bungling. This is the policy choice the White House has chosen. Do you think that's a fair characterization?

TROYE: Yes, I think you're 100 percent accurate. You know, we've known that this is a situation we would likely be in come this time. You know, the county morgue in my hometown in El Paso is full. That could have been avoided and it should have been avoided, but they don't care. And this is exactly what is happening right now. This is a policy decision they've made so they could go out and campaign and hold their rallies and continue fighting the election results and everything else. It's awfully on their agenda instead of protecting American lives.

And you know, Vice President Pence is -- that's great for him. He's going on vacation as a leader of the Coronavirus Task Force (INAUDIBLE) down with the Biden transition team in saying your number one job I know is to save people and protect them from this virus, something that I was put in charge to do, but my boss prevented me from implementing.

But no. Instead, we're going to hold them back and we're not going to support the incoming president, which to me is just unpatriotic and just so an American.

HAYES: Dr. Hotez, you know from the beginning, right, there's a few different things to think about, but what is our goal here in fighting this virus? When it hit the U.S. and hit it so hard in April, particularly a very intensely localized outbreak in a few places primarily in the New York metro area, the idea was exponential growth and a fixed supply of hospital capacity leads to hospital systems melting down. And we saw it. We saw it in Wuhan, we saw it in Lombardy, we saw it in New York.

People in New York died in their homes before they can get to a hospital. They died in the ER waiting rooms before they can be brought into the ICU. We will see this again. We're probably already seeing it again. But above that, it seems to me that suppressing the virus in some active way, it's more -- I mean, now we have to think about, you know, flattening the curve and saving these hospital systems. But that's also just not enough because it's just going to fester and do this.

HOTEZ: Yes, that's right. And there's two components to this. There's, you know, beyond just calling it a policy change, which is a euphemism for what's really a deliberate disinformation campaign to downplay this -- downplay the significance of the epidemic attribute the COVID deaths to other causes, fake concepts of herd immunity, discrediting masks, what you have is the refusal to prevent those surges. And we know how to do this.

And the part of what's so frustrating about this is we're not asking Americans to do this forever. We just have to hang on for a few more months. We've got good vaccines coming, maybe our are one of them, but you've got the Pfizer vaccine, you're going to have the Moderna vaccine. We're going to have a significant percentage of the population.

You right now can save your mother's life, your father's life, your grandfather's life, your brother, your sister. Just hang on for four months and implement this aggressive social distancing to prevent the surges in the places where we need to do it. And it's just -- it's just outrageous that we are willingly leading mothers, fathers, brothers, sisters to slaughter like this. And we don't have to do -- I'm sorry I get so emotional but this is -- this is really where we're at.

HAYES: I feel the exact same way, Doctor. Olivia Troye and Dr. Peter Hotez, thank you for making time tonight. That's ALL IN on this Tuesday night. "THE RACHEL MADDOW SHOW" starts right now with Ali Velshi in for Rachel. Good evening, Ali.


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