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Transcript: All In with Chris Hayes, September 25, 2020

Guests: Nick Corasaniti, Tom Perez, Andy Slavitt, Emily Oster

Summary

President Trump is using the Department of Justice to manufacture voter fraud scandal which causes confusion less than six weeks before Presidential Election. Republicans are filing a lawsuit that seeks to repeal the ACA and ending pre-existing condition protections. The nation mourns Justice Ruth Bader Ginsburg's death. There's a new database that tracks Coronavirus cases in schools across 47 states.

Transcript

JOY REID, MSNBC HOST: That's tonight's REIDOUT. "ALL IN WITH CHRIS HAYES" starts now.

(BEGIN VIDEO CLIP)

CHRIS HAYES, MSNBC HOST: Tonight, on ALL IN. A president attempting to undermine a free and fair election is now using His department of Justice to do his dirty work. Tonight, how Donald Trump and Bill Barr were caught ginning up a fake voter fraud controversy.

Then, DNC chair Tom Perez on his efforts to protect the election and how the Democratic nominee sees the race.

JOE BIDEN (D), PRESIDENTIAL CANDIDATE: We'll have an election in this country as always have had and he'll leave.

HAYES: Plus, the new Trump health care scam that's on par with Trump University, and why there's actually good news and the first set of national data tracking the spread of coronavirus in schools, when ALL IN starts right now.

(END VIDEO CLIP)

HAYES: Good evening from New York. I'm Chris Hayes. It is official now, as I speak to you tonight, that the attorney general the United States and the Department of Justice are colluding with the President and his campaign to sabotage the legitimacy of the upcoming election.

Now, this has long been the fear of those of us who care about the fate of our democracy. I mean, Attorney General Barr has been telegraphing this was the play for a while now. He's been going around lying about the rates of mail-in voter fraud, boosting the President's dangerous and insidious false narrative. He even went so far as to tell a completely false inflammatory story about a supposed case of fraud in Texas, which he later had to correct. He went on T.V. and did that.

But yesterday, yesterday, we saw the first instance of all the machinery working together, OK. The President, his campaign, DOJ, even a local U.S. Attorney all collaborating to essentially sow disinformation. Remember, back in the 2016 campaign, this was sort of a big part of how Trump won. You had Russian intelligence, WikiLeaks, and the Trump campaign and Trump himself, they're all working in the same direction, right? They were all working towards the same end, which was to spread narratives that helps Donald Trump and hurt Hillary Clinton.

And that it's happening again, but this time the President in his campaign don't really even need Russia or WikiLeaks because they have the apparatus of the United States government. They have William Barr. Now, take a listen to -- take a listen to see how the story emerged yesterday on this local news report out of Philadelphia.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Federal and state officials are investigating an issue concerning mail-in ballots in Luzerne County, Pennsylvania. That's the Wilkes-Barre area. The U.S. Attorney issued a statement saying nine mail-in ballots from military members were found discarded. Seven were cast for President Trump, two had been resealed. It's not known which candidate those ballots favored.

(END VIDEO CLIP)

HAYES: Now, the first person to actually break the story was not a reporter. It was the President himself in a radio interview yesterday morning with Brian Kilmeade of Trump T.V.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: These ballots are a horror show. They found six ballots at an office yesterday in a garbage can. They were Trump ballots -- eight ballots in an office yesterday in a certain state. And they were they had Trump written on it and they were thrown in a garbage can. And this is what's going to happen. This is what's going to happen. And we're investigating that.

(END VIDEO CLIP)

HAYES: By the way, him getting the number wrong twice, even changing it in the middle of his spiel, but never getting it correct is like really perfect. OK, so within a few hours, right, Trump says that, it's like ballot -- they found Trump ballots thrown out. The U.S. Attorney then for the Middle District of Pennsylvania dutifully puts out this statement announcing, Indeed, his office and the local branch of the FBI, this is a serious business, they were conducting an ongoing inquiry into reports of potential issues with a small number of mailing ballots at the Luzerne County Board of Elections.

The statement continued, "We could confirm a small number of military ballots were discarded. Investigators have recovered nine ballots at this time. All nine ballots were cast for presidential candidate Donald Trump. Shortly thereafter, that statement was deleted because it was wrong and replaced with this one correcting the ballot count to seven out of nine cast for presidential candidate Donald Trump. Two of the discarded ballots had been resealed inside their appropriate envelopes by Luzerne election staff prior to recovery by the FBI and the contents of those two ballots are unknown.

We subsequently learned the reason the President was the first to break this story ahead of both of these statements from the U.S. Attorney's Office, a Justice Department official told ABC News today the President was briefed on the investigation into these nine ballots by none other than Attorney General Barr.

So, Barr tells the president all about it. The President goes on Fox News Radio to reveal it publicly. Look, the Democrats are throwing out my ballots, Military ballots at that. And then, immediately the Trump campaign word into motion pushing up the story like the Trump campaigns deputy communications director, which what an amazing job that is to have, who wrote up this since-deleted tweet, "Breaking: FBI finds military mail-in ballots discarded in Pennsylvania. 100 percent of them were cast for President Trump. Democrats are trying to steal the election."

I mean, they got that wrong. Just to be clear, they just keep getting things wrong because they're incapable of getting things right. But that's the message. They are throwing out Trump ballots. The Democrats are committing fraud. They're stealing the election. OK, so what the heck was actually going on with these ballots in Pennsylvania?

Well, it appears to be an almost comically innocent story about a clerical error, likely driven by the Trump campaign's own lawsuit. So, let me explain, OK. The first absentee ballots that typically get mailed out are those for military and civilians overseas because it takes a while and we want to make sure those people have enough time to vote and send their ballots back to the U.S.

So, county officials in Luzerne, Pennsylvania, sent out those special ballots to the overseas folks beginning on August 25th of this year. They have not yet started out -- sending out the other absentee ballots. According to those local elections officials, there's a little problem. The problem is they're now receiving envelopes containing those military and civilian ballots from overseas, and also very physically similar looking envelopes containing absentee ballot request forms.

They explained to investigators that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss ballot requests. So, you're sitting in this office, apparently, this was like a contractor who would work there for a few days. They get an envelope. They don't know if it's a ballot request, or if there is an actual ballot inside. So they opened it thinking maybe it's a ballot request, I don't want to miss that, even though ballots are not supposed to be opened until Election Day.

We don't know the details about these specific again, nine ballots, but we do know that absentee ballots in Pennsylvania are supposed to be sealed in the secrecy envelope, and then placed in another return envelope to preserve the privacy of the vote. So, if someone at the board of elections opens an envelope mistakenly thinking it's a request form, and then it turns out, oh, no, whoops, I'm looking at a ballot with no secrecy envelope, you might think well, no big deal, just reseal it and count the ballot. But no, no, no, no, because maybe you'll remember that the Trump campaign and the Republican Party went to court over just that issue, successfully suing in Pennsylvania to have those ballots without secrecy envelopes, so-called naked ballots thrown out.

So, we do not yet know for sure, but it seems plausible, perhaps the most likely explanation that that is what may have happened with these, again, nine ballots. Clearly, someone messed up. These envelopes should not have been opened. And of course, ballots should not be randomly thrown away. Don't do that. That's bad.

But there is zero evidence of anything deliberately criminal happening here at all. And it is completely inappropriate for the U.S. Attorney's Office to be basically live-tweeting their findings as they investigate this, including they have to pull them down and correct them. DOJ policy calls for keeping voter fraud investigations under wraps to avoid affecting the election outcome.

This was an obvious clear violation of that policy by the U.S. attorney and William Barr and the president. But now we see what the plan is, OK. There are going to be tens of millions of mail-in ballots cast in this country over the next 39 days. On every election year, even in normal years, without that volume of mail-in ballots, right, even just normal machinery or -- there are screw-ups. There's misprinted ballots, there's names missing from voter rolls, there's issues with machines, logistical issues. They are real. They're not all that rare.

Often, as we have documented on this show, these logistical issues disproportionately disenfranchise people of color. But now imagine a politicized Department of Justice seeking to seize on every logistical hiccup and blast it out to the nation as smoking gun evidence of a vast conspiracy to steal the election from the president. That is what they did yesterday. That is what they are doing.

The plan as reporter Bart Gellman laid out so clearly this week in the Atlantic is to use fraud as a justification to challenge the results and use whatever tools possible to keep Donald Trump in power. And never has the plan been more obvious.

I'm joined now by Nick Corasaniti. He's a domestic correspondent for The New York Times who has been reporting on this story. Nick, let's just start with the interface between nine ballots that ended up discarded wrongly and the Attorney General of the United States briefing the President on it. How does that happen?

NICK CORASANITI, DOMESTIC CORRESPONDENT, THE NEW YORK TIMES: Well, Chris, everything about this case has just been remarkably unusual. The fact that it was announced before it was completed by the Department of Justice, the fact that the Department of Justice is investigating ballots in a -- in a state -- in the state in Pennsylvania and it's not the local officials, and then the fact that Attorney General Barr briefed President Trump on an ongoing investigation, you know, a lot of election, experts were kind of questioning how that could even happen and what the goal would be.

And then the thing that's almost the most unusual from almost everyone I've spoken to about this is that in their announcement, the Department of Justice revealed that these ballots were cast for President Trump. Now, they got it wrong the first time, but when they corrected it, they still said that there were seven ballots cast for the President. And that is completely immaterial to their investigation. It doesn't matter who they were cast for, if they're actually investigating the ballots and whether they were discarded improperly.

HAYES: That's right. If you -- the ballot being discarded improperly is itself the problem regardless of whether the person votes for Donald Trump or writes in Mickey Mouse, right?

CORASANITI: Exactly, exactly. And a lot of the -- we saw how quickly the Trump campaign and the White House were ready for this news and moved on it. The Press Secretary talked about it from the podium on social media, both White House officials and the Trump campaign were tweeting about it. And they kept trying to, you know, perpetuate the narrative that the President has been saying for weeks now, which is that Democrats are trying to steal the election.

The other thing that's important to note here is that this county is actually controlled by Republicans right now. So, it's not even necessarily a Democratic government that is involved in this investigation.

HAYES: You know, when you talk about the commenting here by the U.S. Attorney, I mean, I think any reporter who's ever reported on something at DOJ, or even a local district attorney, like you call up for comment, you're doing a story on an investigation. And they say, we won't comment on ongoing investigations. It's like, you've heard that 1,000 times your life. I've heard it 1,000 times in my reporting life. Like that's usually what you got, not like we're giving you blow by blow updates on the nine ballots we found.

CORASANITI: Yes, it took everyone by surprise. And you know, so many times when you're reporting on the Department of Justice, like you said, it's we do not comment on ongoing investigations. Yet here, they were looking to not only comment on but kind of break news about an ongoing investigation, and then they move so fast that they had to take it down and correct their initial statement that initially said there were nine ballots cast to President Trump. It turns out two of those were actually still in their secrecy envelopes, and it was seven for the President.

It's been so hard whenever you're trying to report on what the Department of Justice is doing. They're very tight lipped about their investigation. So, to be updating the public on the course of an ongoing investigation is exceedingly rare. Not to mention, especially when it has to do with anything regarding voter fraud this close to the election, its Justice Department policy not to comment on those investigations just in case they could impact the election.

HAYES: All right, Nick Corasaniti who did some great reporting along with his colleagues in The New York Times there, thanks for making time for us tonight.

CORASANITI: Thanks for having me, Chris.

HAYES: For more on this unprecedented action by the Justice Department, I'm joined by Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan, who wrote this piece from The Washington Post this week about how Attorney General Barr can make the DOJ help the president in election disputes.

Let me first start, Barbara, drawing on your experiences U.S. Attorney which is a really important and powerful job and a difficult job. And part of the difficulty of that job is the public facing nature. I mean, you're under the spotlight. Had you -- have you ever put out a press release like the U.S. Attorney put out here, and then had to pull it back to correct it in the middle of an investigation?

BARBARA MCQUADE, MSNBC LEGAL ANALYST: Absolutely not, Chris. As you said, it is completely improper. The phrase that I learned the way kindergarteners learn the ABCs is it is the policy of the Department of Justice to neither confirm nor deny the existence of an investigation. That is drilled into our heads. U.S. Attorneys get media training on all of the policies and all of the laws relating to public statements, because it's so critically important to the work.

The idea that you would issue a press release in the middle of an investigation when you don't know what the facts are, is completely contrary to that policy. And one can only conclude based on what we've seen and Trump's talking points, that this is for the purpose of advancing a political agenda. And in that way, it's incredibly harmful to the reputation of the Justice Department.

HAYES: Well, the tell here is that the statement includes who the ballots were cast for in apparent violation of state election law of Pennsylvania.

MCQUADE: Yes, as you pointed out, Chris, there's no value in adding the names of the candidate for investigative purposes. It's irrelevant who the ballots were cast for. The point is that the ballots were discarded and opened. And so, pointing out who the ballots were cast for can only do one thing, and that is to advance this narrative that President Trump is suffering from a rigged election.

HAYES: Part of the reason right, that is drilled into U.S. aides, and U.S. attorneys, and people at the Department Justice not to comment on ongoing investigations, is there's a kind of due process concern, right, which is that, you know, you're figuring out whether someone has committed a crime often, and should go around saying like, well, we found this today, it looks pretty bad. And then the next day, we found this, it looks pretty bad. Like, you're kind of convicting the person, you know, in the public mind. Like, that is an abuse of power in and of itself to do that. And that's why we don't do it.

What happens at the Department of Justice can use all the information behind that secrecy shield to selectively leak it in the midst of an election to pollute the public mind?

MCQUADE: Absolutely, Chris. And it could be that no one ever gets charged with that offense. So, we've created a cloud of suspicion over people when perhaps no crime at all was committed. But as you point out, it's a violation of due process and any defendant's right to fair trial. In fact, the Justice Department is not supposed to even describe its evidence, because it might take the public, who are potential jurors who might appear to try this very case.

It also undermines the investigation itself, when you tip off people, about the evidence that you have, if there are people who are guilty of this crime. They now have an opportunity to destroy evidence or get their story straight or tamper with witnesses. So for many reasons, it is contrary to that the Department of Justice policy, it's bad business for the Justice Department, and it's contrary to the rights of individuals under investigation.

HAYES: You know, the attorney general I think is shown himself to be essentially a hack. I mean, that in the sort of traditional sense. Like, people that go work for a politician and say what the politician wants him to say, right, that, you know, he basically compared his own U.S. Attorneys to preschoolers, and basically said, "Look, all constitutional power and authority flows from the president, to me down to everyone that the Justice Department. If the president says, go prosecute those people, I tell them, they should do it."

How long can the Justice Department last under this kind of pressure? Like what should the people inside DOJ with fidelity of the rule of law be doing under these circumstances?

MCQUADE: Well, I hope that they are following their oath to support and defend the Constitution that they're basing cases on fact and law and not doing things just because Attorney General Barr is telling them to because it advances the political agenda of President Trump. I think they if they are asked to comply with an illegal order, they have an obligation to resign and to tell the public about what has happened so that they can expose wrongdoing within the Department of Justice.

The thing about the speech that William Barr gave last week when he insulted career prosecutors as preschoolers and headhunters, it isn't the fact that people resist supervision. People who work in these jobs understand that they are to be supervised and that their boss, as long as they're issuing a lawful directive, gets to call the shots and should be complied with. What they object to is an attorney general who is intervening only to help allies of the president in positions that use tortured legal logic in ways that help the president.

HAYES: Yes. I personally don't love supervision myself. I don't think I'd be the guy to say for that reason. But Barbara McQuade, it's always great to talk to you. Thank you so much for your time tonight.

MCQUADE: Thanks, Chris.

HAYES: Joe Biden today called the President's attack on the election a "typical Trump distraction." He told our own Stephanie Ruhle that he's confident the American people won't be shut down.

(BEGIN VIDEO CLIP)

BIDEN: The people in this country are going to be heard on November 3rd. Every vote in this country is going to be heard and they'll not be stopped. And I'm confident all the irresponsible outrageous attacks on voting will have an election in this country as we always have had and he'll leave.

(END VIDEO CLIP)

HAYES: Stephanie Ruhle's full interview with former Vice President Joe Biden will air as part of the latitude national business conference, full coverage on MSNBC tomorrow on weekends with Alex Witt at 12:00 p.m.

Still to come, I'll talk to one of the key players and making sure every vote is counted in this election. DNC chair Tom Perez joins me next.

(COMMERCIAL BREAK)

HAYES: The many irony is the President and his Attorney General William Barr using a problem in Pennsylvania election ballots to push this completely bogus narrative that mail-in voting is fraudulent and corrupt and should not be counted, is that the Democratic Party has consistently been on the side of counting ballots, counting all the votes no matter who those people voted for, to not throw them out over technicalities.

In fact, Democrats are fighting in the courts right now, to make it easier for people to vote and make sure ballots are not thrown out. Which is why I wanted to talk to someone bound to be a key figure in all this, Tom Perez, head of the Democratic National Committee, former Assistant Attorney General of the DOJ Civil Rights Division under President Obama, whose literal job was to help protect fundamental civil rights like voting.

Tom, it's great to have you. First, I guess your reaction to watching the Department of Justice and the Trump campaign and William Barr were into action on this story.

TOM PEREZ, CHAIRMAN, DNC: Well, they're going to keep doing this. It's unconscionable. I spent 12 years at DOJ. I worked with Barb McQuade and others very closely. This president doesn't want to talk about health care, doesn't want to talk about the coronavirus. He wants to distract.

And here's the deal, Chris, voters across many states, in ballot initiative in Michigan, we increased options for voters. That's a good thing. When you have more options to vote, here's what happens, more people vote. Democrats want more people to vote. And the Republicans don't want more people to vote so they demonize these options.

And, you know, without due respect, the one thing I disagree with you on is it might be unfair to compare Attorney General Barr with hacks. That Hacks Association of America just called me to say stop comparing him to us. And the reason I say that tongue in cheek is because he's the Attorney General of the United States, and he is misusing his power, and it pains me as a DOJ institutionalist to see it.

So, again, the most important thing to remember here is that having more options are good. More people will vote. It may take longer to count those votes. We may not know by 11:00. We invariably won't know in some states by 11:00. That's OK, as long as those votes are counted. They don't want those to be counted. That's why they're fighting all these things.

And we're going to see these distractions almost every day between now and Election Day. And we are not in the -- we're not distracted in the least. We are fired up to vote. That's what's happening.

HAYES: So, you -- the DNC along with, sometimes the campaign or other entities has filed a bunch of successful lawsuits. One in Wisconsin, and also this happened in Pennsylvania on the -- on the deadline, right. I mean that this has been a key thing. Just explain that and explain why it's important.

PEREZ: Sure.

HAYES: You know, again, this, I think, is counts in the universe of let's count as many, you know, properly cast ballots as possible.

PEREZ: Right. We think it should be as easy as possible for people to vote and those ballots should be counted. A quick example, Wisconsin. The Republican-controlled legislature passed a law that's designed to fail. You can -- you can request a ballot up to something like a week before the election. You can request an absentee ballot, but it must be received by Election Day in order to count.

And when you have an exponentially greater number of applications, what happened in April was some people never got the ballot that they requested in a timely fashion. So we went to court with the Democratic Party of Wisconsin, and the judge ruled that as long as the ballot was postmarked by Election Day, instead of what the law said, which is received by Election Day, and then it got to their the election offices within I think five or six days, it counted.

94,000 people who would have been otherwise disenfranchised, have their votes counted as a result of that. We just got the same remedy a few days ago. And I estimate that it'll easily be in six figures because more people will vote in November. That's what it's about.

HAYES: That's great.

PEREZ: They passed a law that was set up for people to fail. And the judge I think correctly said that's not fair, the same thing in a number of other states.

HAYES: One thing that I wanted to ask you about as a consent decree that for a long time barred the Republican Party from essentially dispatching people to be like poll watchers because essentially they had used it as a -- as a pretext for intimidation. That consent decree is no longer operative. We saw the first day of early voting in Virginia, there are a bunch of Trump protesters.

And again, people could protest. That's their first amendment protected right. They got to be outside of certain cordon. But you know, they're now -- I want to play you a little bit of the president's son recruiting people for this like what they call an army of people to go watch people vote. Take a listen to what he -- how he described it. This is --

(BEGIN VIDEO CLIP)

STEPHANIE RUHLE, MSNBC ANCHOR: But come November 4th, we know all the votes won't be counted --

(END VIDEO CLIP)

HAYES: I'm sorry. "We need every able-bodied man and woman to join an army for Trump's election security operation. We need you to help us watch them." What do you think of that?

PEREZ: Yes, I actually saw that, so I appreciate that. That's obviously a thinly bailed effort to get people to come out and intimidate voters. We know that. And I'll tell you, the Biden campaign, and really the Democratic ecosystem have built an unprecedented Voter Protection operation.

We understand what they're trying to do. We are not going to let it happen. We will go to court if necessary. We at the same time, again, have literally multitudes of people working to make sure that everybody can cast their vote, and those votes are counted. So again, don't allow -- you're going to see distraction, you're going to see intimidation between now and Election Day.

Folks, we have options, and options are good. And I am confident that when people get out and vote and all those votes are counted, we will win. I know that they will continue these attacks and I know that they will continue to not talk about health care, to not talk about the pandemic, to not talk about all the issues that matter most of people.

Health care is on the ballot on November 3rd, and health care is on the Supreme Court docket a week later. That's what they don't want to talk about because they don't have a plan other than to hurt people. And that's what they're doing and voters are going to remember that.

HAYES: All right, Tom Perez, chair of the DNC, thanks for making time tonight.

PEREZ: My pleasure.

HAYES: Still to come, we'll talk about the President's new health care con in the middle of a pandemic.

(COMMERCIAL BREAK)

HAYES: Today, conservative radio host Erick Erickson honestly articulated the Republican position on health insurance, saying I don't think the government should force coverage for pre-existing conditions. And basically, if you have a pre-existing condition which 130 million Americans do, tough luck dude. Pay up.

Now, that is a wildly unpopular opinion. And now, with over seven million Coronavirus cases in the U.S. and counting, more and more Americans will be left with pre-existing conditions trying to figure out how to get coverage as this new ad for Joe Biden points out.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: There is not a day that has gone by since this started that COVID does not terrify me. Seven million people have gotten it and three of them are in my home. My daughter got it first, and then my husband and I. My daughter has chronic lung disease, so that made all of this very scary for us.

What also scares me is Donald Trump trying to let insurance companies deny health coverage. We're charged more because of a pre-existing condition. Trump is rushing through a Supreme Court nominee to do just that, strip away care for millions of Americans and end pre-existing condition protections.

(END VIDEO CLIP)

HAYES: Whether they will admit it or not, it is the Republican Party position to get rid of the regulation that protects people with pre-existing conditions. I mean, they tried to repeal that regulation as part of ObamaCare twice and failed. Now, they're trying to get rid of it through the Supreme Court.

And because it is so politically toxic, I mean, truly, truly toxic, none of them can be as honest as Erick Erickson was, again to his credit. So, instead, the way they kind of square the circle is just lie and pathetically promise over and over that just in two weeks or so they'll have figured out a solution.

(BEGIN VIDEO CLIP)

TRUMP: We're signing a health care plan within two weeks, a full and complete health care plan.

We're going to be introducing a tremendous health care plan sometime prior -- hopefully, prior to the end of the month. It's just about completed now.

Over the next two weeks, I'll be pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions for all customers.

UNIDENTIFIED MALE: You told Chris Wallace this summer that it would come in three weeks. You promised an executive order on pre-existing --

TRUMP: I have it already. I have it already.

KAYLEIGH MCENANY, WHITE HOUSE PRESS SECRETARY: The President will be laying out some additional health care steps in the coming -- I would say two weeks.

(END VIDEO CLIP)

HAYES: The truth is, every Trump health care plan is just like Trump University. It is a transparent con. And someone who knows about pre-existing conditions and insurance marketplace regulation in the Affordable Care Act is Andy Slavitt, former Acting Administrator for the Centers for Medicare and Medicaid Services, which put him in charge of administering huge parts of that health care law, and he joins me now.

Andy, I find this such a strange -- it's a maddening and strange moment because the stakes are so high, but it's so baroque the entire thing. They tried twice to repeal the Affordable Care Act, they failed. Now, they have the Department of Justice on the side of a bunch of Republican attorneys general trying to strike down the whole thing for this preposterous pretextual Rube Goldbergian reason. And instead of just not doing that, and fixing the law, so the ACA could be guaranteed, they're trying to kill the thing while lying about it.

ANDY SLAVITT, FORMER ACTING ADMINISTRATOR, CENTERS FOR MEDICARE AND MEDICAID SERVICES: Well, Chris, you know, you're exactly right. I mean, Trump is a guy whose idea of business is marketing. I think it'd be -- if he says it, he can convince people, and maybe he'll convince a few people. But here's the here's the reality. If you try to get insurance, and the ACA is struck down, and you go to an insurance company and hand them this executive order from Donald Trump and say, here, you have to cover me because Donald Trump wrote an executive order. They would laugh so hard because it doesn't have -- it has all the authority of a tweet.

It's a tweet on fancy paper is what it is. And of course, doing it at the 11th hour is obviously cynical while he is attempting to basically take away the coverage that Americans are going to need. As you said, COVID-19 is the ultimate pre-existing condition. It affects many organ systems, our limbs, our circulatory system, our immunology system. Try getting covered after this if Trump's successful.

HAYES: Yes, I just -- I literally just heard about a family friend today that recovered and is now having heart problems or heart issues, and this is -- this is very widespread. And the politics of this are so clear. I mean, it's so fascinating to watch every Republican in cycle who's up, Martha McSally, David Perdue, Cory Gardner, Kelly Loeffler, they all voted -- not Kelly Loeffler. She wasn't there. But the other three all voted to repeal the Affordable Care Act.

Like, they're all on the record of repealing it. They're all tweeting, like, I've always believed in protections. I've always believed in protections for Americans with pre-existing conditions. Like, it's crazy the degree to which they refuse to own what their own position is.

SLAVITT: Chris, you do remember this from 2018. There's like two days every two years when Republicans believe in protecting pre-existing conditions, they tend to fall in September or October of an even year, and then we're done with it for the next two years. And then 2022, there'll be believers again for a day or two.

HAYES: There's also this development -- I mean, everything about all of the president's -- the president (INAUDIBLE) health care policy. It's sort of transparently transactional, right. Like they were going to repeal the ObamaCare -- ACA because that's what they promised, and they were going to do that. That didn't happen. I don't think he cares one way or the other, but he's got his DOJ trying to tear the thing down.

And now they're floating this idea that they want to spend $200 worth of prescription drug debit cards to every senior. They apparently tried to broker this with Big Pharma who got so hinky about what a transparently, you know, political move it would be in the run-up to the election. They're now announcing they're going to do it without congressional authorization. Like what do you think of this?

SLAVITT: Well, first of all, it's amazing that he believes the mail system would actually work, right? I thought he didn't think the mail system could actually do its job. I've counted three criminal laws that he probably is violating, the anti-deficiency law, the campaign finance reform law, because this isn't probably an illegal campaign contribution, and it's likely mail fraud.

So, there won't be enough time to prosecute these as criminal statutes before the election, but he can be sure there are lawyers already getting ready to file against these cases. And look, what seniors need to know is that this empty promise, what President Trump has done is he's shortened the life of the Medicare trust fund by two years.

Obama -- remember, Obama and Biden lengthened it by a decade. Trump has now reduced it by another two years. It now -- right now, basically, it's deficient of cash in 2024. So, he has been -- in this -- if he were going to pull this money, this is what would further come from the Medicare trust fund. So, he's basically robbing seniors of their future.

HAYES: Andy Slavitt who worked in the Obama ministration, who knows the ACA backwards and forwards, thanks so much for making time tonight.

SLAVITT: Thanks, Chris.

HAYES: Coming up, with kids back in school, we're getting our first glimpse of how the virus is or is not spreading in schools thanks to ambitious to tracking effort, and what the early data shows, just ahead.

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HAYES: Supreme Court Justice Ruth Bader Ginsburg today, one of the most influential legendary women in American history lying in state at the Capitol, being bid farewell by one of her favorite opera singers Denyce Graves. Justice Ginsburg is the first woman to lie in state, the first Jewish American to lie in state, and as far as we can tell, is the first person to lie in state inside the Capitol as personal trainer performed pushups before her casket, a tribute to her famous workout routine she did with him well into her 80s.

Among those who paid their respects today were Democratic presidential nominee Joe Biden and his wife Dr. Jill Biden, Democratic vice presidential nominee Senator Kamala Harris. Even before, Ruth Bader Ginsburg was appointed the Supreme Court where she was just the second woman in history, when she was a litigator, she essentially built her career on gender equality. And she did it in this ingenious manner by attacking official means of gender discrimination, no matter who is disadvantaged, including men.

Before Ruth Bader Ginsburg went to work, men whose wives died could not receive Social Security survivors benefits. In 1975, she successfully argued before the Supreme Court that men should be as entitled to those benefits as women. Before Ruth Bader Ginsburg went to work, states could automatically choose men over women to oversee the estate of a deceased person. That changed in 1971 when she wrote her first Supreme Court brief arguing against this, and the court struck down that state law because of gender discrimination.

Before Ruth Bader Ginsburg went to work, women in the Air Force were faced with the horrible choice of leaving the military or having an abortion if they got pregnant. Ginsburg prepared to take the Department of Defense and the Supreme Court over it. They got scared and they rightly changed that rule in 1971, another victory.

There's a reason that Ginsburg's loss is felt so profoundly by women and men all across this nation, many of whom made the pilgrimage to the Capitol to say one last goodbye. The trail she blazed for every female lawmaker who stood on the steps of the Capitol today hands over their hearts, as Justice Ginsburg was carried away. To mothers and daughters, many of whom showed up to say goodbye dressed as the Justice including her now famous descent color which she wore to communicate in disagreement. And for all of us, every person in this country, because we all gained from her relentless pursuit of justice.

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LAUREN HOLTZBLATT, RABBI, ADAS ISRAEL CONGREGATION: She was our Prophet, our North Star, our strength for so very long. Now, she must be permitted to rest after toiling so hard for every single one of us.

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HAYES: With everyone now back in school, including my two oldest in some form or fashion, we're left with this patchwork plan across the country to keep students and teachers safe. And as we have maddeningly noted on this show, there seems to be no unified federal effort to collect data to find out what kind of COVID transmission is happening in these schools.

So an economist at Brown University has stepped into the breach along with some of her colleagues to do it herself. The first set of data has some good news. Tracking infections over a two week period beginning August 31st found that 0.23 percent of students had a confirmed or suspected case of the Coronavirus. Among teachers, it was 0.94 percent -- sorry 0.49 percent.

Joining me now is a person collecting that data, Emily Oster, a professor of economics at Brown University. She helped create the COVID-19 School Response Dashboard that tracks Coronavirus cases in schools across 47 states.

Emily, you and I -- you and I had an exchange about this because I was sort of at my wit's end that we -- I think we were planning a segment, and I was trying to say like, let's find out what the -- what the data is. What's the key note in collecting data about school transmissions? Like there is none and you reach out to be like, I'm trying to do it. How is it possible that there is none?

EMILY OSTER, PROFESSOR, BROWN UNIVERSITY: Yes. I'm not sure. I mean, I think the biggest challenge and this was the biggest challenge we faced is that we really need to understand the context for cases. So, it's not enough to know the cases, you have to actually understand how many kids are in school, are they in school in person? Ideally, what is the school doing in terms of mitigation?

And that data is hard to collect because you have to actually go into the schools. There's no like, official source. There's no federal government that has all that data. Now, why they weren't collecting the data in August I think is a deeper question.

HAYES: So, walk me through what -- I mean again, this is not definitive, and this is sort of, I think it's fair to say, kind of cursory and tentative, right. We're just getting started. You're just collecting the data. But what are you -- what are your sort of top lines here?

OSTER: Yes. So, what we did in this project, and I should be very clear, this is not just me, I am only the face on the -- on the T.V. There's an amazing team, particularly the team from Qualtrics who did all of the heavy lifting here. We started and we asked schools about their enrollment, and then we asked them about their COVID cases.

And in the first couple of weeks, we're seeing those numbers that you put up and sort of to put that in context, it says in like a school of 1,000 kids, over the two week period, you'd expect two suspected cases or confirmed cases, and actually a bit less than one confirmed case. And in a teaching staff of 100 teachers, you'd expect maybe one case every four weeks.

So, those numbers I think are -- I mean, to me, they're -- I think they're fairly small. They're not zero, but I think that they may be smaller than some people expected.

HAYES: Yes. I mean, again, it just helps again, to get our arms a little bit around the risk, because it's been kind of a black box. And you can point to other countries, but other countries also, frankly, started school after they'd suppress the virus more than us. I mean, it does seem to me that, like the levels of community transmission in the local area have to matter.

OSTER: Yes. So, that's something we're actually working on merging in right now, as I'm talking to you, which is to sort of look at the community attrition -- community transmission rates. But one thing that I will note is that actually, a lot of the places where schools have opened in person are precisely the places with fairly high transmission rates, which isn't I think, what we would have recommended maybe from a public health standpoint, but it does give us an opportunity to learn about how is it going in those places, and are there techniques that they're using, and then can you -- can we port that to places with lower rates?

HAYES: One thing that was really striking was that you found that -- I mean, obviously, it's fairly clear that -- you know, the data is fairly clear that kids don't have as big viral load, they don't seem to be like massive vectors for this. They clearly can get it and can spread it, but not the same level as adults. And I think the bigger -- the real health concern, I think, is staff and teachers, particularly those who are 65 or older.

And one thing you found so far, again, tentative and cursory in terms of just the beginning, but that like the schools with remote learning only an in-person, that teachers are testing positive around the same rate which is surprising.

OSTER: Yes. I mean, I think -- so just to be clear, there are actually a bunch of districts that have this feature where the kids are remote but the teachers are in-person. They're teaching from the building.

HAYES: Right.

OSTER: And, you know, again, those tend to be in places with fairly high community transmission. So we want to sort of put it in that context, and we're going to try to explore that a bit more, but it is certainly the case that we're seeing a reasonable number of cases in those places. Again, not a huge number. They're still small, but we're not seeing -- it doesn't look like the problem is bringing the kids in at least from this sort of early look at the data.

HAYES: So, when I sort of step back and look at colleges, right, because colleges have been -- we've had some really bad college situations. But we've had some success stories of colleges. And those success stories are basically places that have been testing at massive scale, like University of Illinois, they had this very ambitious plan. It started in the beginning, they found a lot of positives.

There's a little worry like, oh, they can't handle it. But they have kept testing, they've kept quarantining, they kept isolating, they've pushed down. They've got -- whatever they're doing, about 15 to 17,000 tests administered in one day, and it's working. And I just read that, I think, well, if we could scale up and be testing in schools, that would help a lot, wouldn't it?

OSTER: Yes. So, I will say, I think a lot of colleges are doing this the place that I work, and they were I think you went to school, we're doing a lot of this. I think one of -- the big barrier is it's expensive. So, most colleges in the northeast are using the same testing lab and the PCR tests are, you know, we got -- we got a deal, but it's $30.00 a pop. And so, you know, for a big university, that may be more feasible than for a school district.

So I think it's pretty clear that we need to continue to develop less expensive, faster, easier testing methods, so we can port some of those lessons about the value of such frequent testing into the school population. But it's got to be cheaper first.

HAYES: Yes. That's a really good point. And on the price point, you know, Horace Mann was a very -- lead private school in New York City. They have a screening company that they have contracted with, so that they can do it. I mean -- and you're hearing these stories about like Hamptons parties and Hollywood parties, or like people have like, quick viral tests, a 15-minute tests. Like, you know, the testing as a -- as a way of keeping places safe works, we just don't have the money or the commitment or deploy it at scale for our children, which I think is a bummer.

But Emily Oster who's tracking this is going to keep us apprised of what you're learning. Thank you so much. I appreciate it, Emily.

OSTER: Thank you for having me.

HAYES: All right. That is ALL IN for this week. What a week. "THE RACHEL MADDOW SHOW starts right now. Good evening, Rachel.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.END

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