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Transcript: The Beat with Ari Melber, 1/13/22

Guests: Frank Figliuzzi, Howard Dean, Emily Bazelon, David Kelley


The Supreme Court rules against the Biden administration`s vaccine mandates for large businesses. Federal prosecutors indict leaders of the Oath Keepers for to overthrow the U.S. government on January 6. Senator Lindsey Graham states that loyalty to Trump is now a necessity for Republican lawmakers.



Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Nicolle. Thank you.

Welcome to THE BEAT. I am Ari Melber.

We tracking breaking news, federal prosecutors now indicting militia leaders for trying to overthrow the U.S. government. These are new charges against 10 rioters and militia leaders for their direct roles in the January 6 insurrection.

Now, this is huge news in the probe, because, one, it`s the first sedition charge. Two, it`s a key charge going up the line to the plotters of this insurrection for the first time. And, three, it shows an open probe escalating, not winding down, which is possibly bad news for other insurrectionists and coup plotters yet to be potentially charged.

So there`s a lot in here tonight. It`s big news. And I`m going to try to clearly walk through it with you right now, beginning with point one, sedition.

Sedition makes for a significant escalation in the DOJ`s criminal probe. Over a year in, today marks the first such charge in this probe related to sedition, a felony of acting against the United States. I`m going to explain it to you exactly.

But I can tell you how serious it is. It carries alone up to 20 years in prison. So, this is farther than the DOJ has gone against any of those several hundred January 6 defendants charged to date. And it`s one of the first moves in the pro to go beyond the so-called pawns who trespassed the Capitol and go up the line to the plotters and the heavy hitters.

So what is this? Well, let`s go right to it. Under the law, seditious conspiracy is when people conspire to overthrow by force the government or by force hinder the execution of any law of the U.S.

How does that apply here? Well, the feds say in this brand-new serious indictment that Oath Keepers militia founders Stewart Rhodes lead a literal criminal, seditious conspiracy. I`m going to tell you exactly what they say in the key part of this new indictment.

They allege and indict him for -- quote -- "trying to oppose the lawful transfer of presidential power by force" through the violent January 6 attack, and state that that attack was an illegal "hindering of the laws governing the transfer of power."

In the language of federal law, violently opposing that transfer of power to president-elect Biden is sedition. In the language of political science, this may all ring like an echo to you, because the law speaks one way. Sedition is what I just read to you. But, in the language political science, it`s something very clear. Violently overthrowing the government is a coup.

And that is the purpose and the conduct in this indictment. We are in a new phase of this probe. We have been living through this since, well, January 6 or before. But today is the first day, with the unsealing of this indictment, that the federal government is publicly treating it as such. That`s a big deal.

That`s why sedition against the U.S. is so serious and so rarely charged. Many murders, another very serious felony, are charged every year. But we checked, and, best we can tell, the United States has not charged someone with sedition for over a decade. It was against a Michigan militia member last time in 2010.

Now to point two, whether this probe would hit the higher-level people, the big fish, because, a year in, top lawmakers have been calling out how this Garland DOJ January 6 probe seemed more focused on, well, for example -- quote -- "glorified trespassing" than the big ringleaders.


SEN. SHELDON WHITEHOUSE (D-RI): So far, it has been a very large array of trespassing and glorified trespassing prosecutions of people who actually broke into the building.

But it has not gone into the various rings that might have supported it or into the key fund raisers and ring leaders behind the whole thing.


MELBER: Now, today, it is a top ring leader who stands indicted, which brings us to point three, where this is headed.

Attorney General Merrick Garland had recently vowed to basically go farther, saying things were going to get serious here. He didn`t preview exactly what would happen, but he did give a speech to that effect. And, today, well, we can see what`s going on. Things are heating up, not winding down.


Then you have the question of whether any of these new people would flip, or whether they had contacts with other planners, the kind of people who foment riots without personally attending them, because while Rhodes now faces the most serious charge to date, he was not actually inside the Capitol for the criminal trespassing or the physical fighting.

He was at the Capitol organizing on January 6, "The Times" reporting he communicated with members of his team in the building, but there`s no evidence Rhodes entered the Capitol. So Rhodes could have that in common with any other high-level people who might be charged to come.

Now, what happens to him? The FBI arrested him this morning in Texas; 10 other individuals are in custody. So, you take this together tonight, and we`re going to go through more of it. I just gave you some of the key highlights. There`s more in here.

And we have some of it to break down with you, including with our experts, but it can feel dizzying to be living in a country where a coup was plotted, where an insurrection was waged, where people come out and try to tell you about how they were going to do a coup the right way or the non violent way, and watch the federal government, which was, of course, obviously the target of it in the sense of being the democracy, but also being the incoming Biden administration, watch it not do anything commensurate with the level of the attack that we lived through and witnessed a year ago.

Now, there is much left to do, according to many of the experts we have talked to and consulted, but today does mark, as I mentioned, the first legal turning point, a sedition-related charge, and going after someone who wasn`t just running through the building, like some angry, crazed, excited rioter who showed up and didn`t know they`d get through, but going after some of the people who, in their writing and in their talking and in their planning, secretly said they would take over the U.S. government.

Is it justice? Well, we will get into that with our experts.

We have someone who was one of the top prosecutors in the United States, the U.S. attorney for the famed Southern District of New York, David Kelley, also, full disclosure, my former boss, and a legal writer for "The New York Times Magazine," Emily Bazelon.

Welcome to you both.

David, if people are not studying this every day, they`re living their lives. There`s a lot going on. When we hear that someone has been charged here with a sedition conspiracy under federal law, how big a deal is that?


Sedition wasn`t really used much over time. It was used back in the Civil War era, and not really used again until we ran into the Puerto Rican nationalists in the early `80s. And then, frankly, it was used for Sheik Rahman, when he and some other terrorists, international terrorists, tried to blow up a bunch of landmarks in the United States and in New York City, and, as you pointed out, a militia most recently in the last decade.

So it`s only been used very infrequently, and typically against terrorists. And I think that any prosecutor looking to get to the bottom of the January 6 episode, without fear or favor, I think, looking at sedition and finding it is kind of a slam dunk.

MELBER: Emily?

EMILY BAZELON, "THE NEW YORK TIMES": So I think one way I think about the definition of sedition is, you`re taking arms against the government.

And in this case, we have this key moment of the transfer of power in which Congress is meeting with the vice president to do the final step in this long process we have for deciding and then nearly certifying who the next president will be.

And so I assume that these charges show that the government has information that the people they`re charging intended to prevent Congress from allowing the transfer of power to President Biden.

And that seems important, because then that suggests that the planners were communicating about that in some way, that there could be cell phone messages or witness testimony, other evidence of planning of that specific act.

And I have been kind of waiting for that and wondering about that, because, at least for me, it`s been unclear how much evidence of actual planning of this illegal interference with government that the Justice Department has. And this suggests to me that they think they have it.

MELBER: Right.

And you`re both speaking to the fact that there`s a reason this is rarely charged and charged against terrorists and such, is because it`s the use of violence, in the language of the law -- quote -- "by force" to go at that elicit.

Both of you stay with me.

With regard to the violence in the force, I want to show a little bit more than new evidence, as we promised we would, because it states that the militia planned these attacks by marching in stack formation up the Capitol steps, stack one joining a mob attacking officers that tried to enter the Capitol, yelling, "Take their shields" or "Our house."


And then it details how attackers assaulted police officers with pepper spray, flagpoles, improvised weapons. And now today, for the first time, some of that horrific video evidence is part of this federal sedition charge.




MELBER: David, walk us through how this plays in court.

The dry language of legalese can get lost sometimes against just a snippet of what we saw, hard to watch, much harder to live through. You have handled cases that are complex and deal with this kind of tough stuff, including, I know, the John Walker Lindh case, and other things where you may have to get into court and explain to people why something was so serious.

It would seem they have more evidence, more video evidence than most comparable cases, but walk us through what you see in court here.

KELLEY: Look, I think, if you`re trying this case, if it ever goes to trial, your first witness is tapes like that to set the stage, to let people know how serious this was.

And then you look back and recognize that we`re talking about a conspiracy, which is simply an agreement between two or more people and then some overt acts. In other words, it`s one thing for, for instance, Emily and I to have a chat, but if we don`t do anything in furtherance of it, it`s not a crime.

But if -- once you take an act -- and you mentioned these things stacking up and so forth, but there`s a lot more in this indictment. I mean, stacking up is when it`s a military formation where each person grabs the shoulder of the person in front of them, and it`s a tactical step.

But if you go back, these folks were acting on the myth, on the fable on the lie that the election had been stolen. As early as November of `20, they are -- they start to form their group. And there`s a number of activities that are really steps in advancing this conspiracy.

So it`s a really well-formed conspiracy. We`re not talking about people just chatting. They have some very concrete steps that are taken. And, as a prosecutor, you start with that video to put -- to set the stage, a video like that. And then you prove each one of these overt acts. And I think, each one, it`s like thrown another shovel on the coffin.


Mr. Rhodes` lawyer, David, spoke out today. He says: "They just added the charge without any revelations." This was what`s called a superseding indictment. There was some of this already out there in the earlier filings.

Quote: "I don`t think the facts alleged support the charge of seditious conspiracy."

Your response?

KELLEY: Look, my response is, when somebody is charged in a case with what appears to be overwhelming evidence, they usually step up and say, my client is going to be vindicated, and that never happens.

I would put this in that category. This -- if the government has proof on those overt acts, I`m not quite sure what the defense is, unless you try to cobble together some sort of defense that you were functioning under a lie given to you by the president of the United States that the election have been stolen.


KELLEY: I don`t think that really works. There`s no legal basis for that.

But I think it`s a tough road for them to hoe.

MELBER: Yes, as you mentioned, that sort of vigilante or color of law defense has been tried in certain contexts. It was tried and failed most recently in some of those violent cases, the murder cases we have been covering, which are different than Jan. 6, but involve people who have whatever loose or veteran ties to law enforcement.

There`s more receipts in this, I told you, as we`re going to get into that here. And I want to do that now. So I`m going to read here what we`re learning from the filing about Rhodes` thinking ahead of January 6. He sent messages he thought were encrypted and secret.

The feds have them, saying things like -- quote -- "We aren`t getting through this without a civil war. Too late for that. Prepare your mind, body and spirit." This was on Signal, which is supposed to evade the authorities. That clearly failed.

They also in the indictment quote him saying: "There`s no standard political or legal way out of this." At one point, he also according to this new evidence, was studying a Serbian coup plot where citizens did overrun a Parliament building. They ousted the president. So that`s some of the footage you`re seeing of what inspired allegedly these people on January 6.

Reading again from this indictment, citing the evidence -- quote -- "We must now do what the people of Serbia did when Milosevic stole their election. Refuse to accept it, March en masse to the nation`s capitol."


Rhodes published the plan of action under the headline: "What We the People Must Do."

This was on the Oath Keepers` Web site.

Emily, this is one of those things where, if we`re too calm about it, we almost miss the point. I mean, they`re literally talking about ideas of foreign coups. They`re literally talking about, we can`t do this in a legal way, a legal way.

It really seems to be damning, written, contemporaneous evidence of a desire to break the law.


I mean, you`re allowed to plan a protest. You`re not allowed to plan taking over the government or interfering with this key government function. And it seems like these pieces of evidence line up to show that it was the latter kind of plan that the alleged conspirators had going here.

And then the video footage shows that it was actually carried out. But I think it`s both parts that are important. And it shows why someone like David (sic) Rhodes, who wasn`t present at the Capitol, can still be indicted for sedition, both the planning, the specific nature of the planning, and then the fact that it was executed.

And then I think there`s this big question that you started with, Ari, about whether a witness like this, someone like this becomes a witness against someone higher up the food chain. It will be really interesting to see if heavy charges like this prompt that kind of shift toward potentially charging others who we have talked about on the program before who might have been closer to former President Trump.



MELBER: Go ahead, David.

KELLEY: I was just going to say that sometimes an indictment like this is intended in part to shake the trees and let them know that we mean business.

And, I mean, my expectation would be that some folks, if they haven`t already, will begin to cooperate.

MELBER: And, David, is it fair to say that this kind of sedition charges is more grave than just about anything that came out of the entire Mueller probe?

KELLEY: Oh, yes. I mean, sedition is a big deal.

There`s a lot of other charges in there too, all of which ultimately will be guided by the sentencing guidelines, which ultimately will be enhanced by the violence of the event, the gravity of the event, and so forth. So I think it`s -- this is a very serious indictment.

And I will say, just to respond to what some of what Emily said, the fact that Rhodes wasn`t present inside the Capitol is completely irrelevant when you`re looking at conspiracy law, and the fact that somebody could be a mile-and-a-half down the road or a continent away and still be a conspirator.

And I think that one of the things they are likely going to look at, when you talk about the elephant in the room, where does -- how high up does this go? I`m sure -- and you have to expect the government has and will continue to look at any connectivity between Rhodes and anybody in the administration to see if there was any sort of acquiescence, a consultation, acknowledgement.

It`s going to be as -- the higher you go, you`re not going to have people stacking up. You`re not going to have people buying arms, but you`re going to have folks who are having conversations, perhaps, that would bring them easily into the conspiracy without having participated in one of the more concrete overt acts.

So one thing to keep an eye out for is, how much does this shake the trees? Where does the government go from here? It wouldn`t surprise me -- look, this may be the end-all. I doubt it, but it`s possible. But it`s also possible that they work their way up from here.

The fact that it`s taken as long as it has to get here is, people have been -- and Attorney General Garland responded in his last speech about the time it`s taken to get here. That`s not -- it`s a year. That`s not a big deal in a criminal investigation of this magnitude.

And sorting through everything they have had to sort through, the video and identifying who`s doing what, that`s a big deal. It`s taken -- and in terms of the timeline for a criminal investigation, we`re kind of at the starting line.

MELBER: Really fascinating, especially given your experience.

And, David, you`re telling us, one, bigger than anything in the entire Mueller probe. People remember what that was like. And, two, the DOJ saying the sedition conspiracy was on-site, but the other participants could easily legally be off-site. And a lot of people at the Willard Hotel and elsewhere may be hearing the echoes of what you just said as a prosecutor.

Really great to have the insights of both of you. David Kelley, Emily Bazelon, thank you.


Coming up, we are dealing with an extraordinary day of breaking news. We have a deeper dive into another aspect of this I haven`t even had time to get to yet that affects Trump world.

Also, a stunning decision from the Supreme Court that will literally affect workplaces everywhere. It has to do with COVID safety. Dr. and Governor Howard Dean is here.

And later, Lindsey Graham, well, you can call it limbo week for him, because he`s getting lower and lower than anyone thought possible.

Stay with us.


MELBER: We are tracking this breaking news, intensifying the open criminal probe into the insurrection, the highest-level indictment to date unsealed today, seditious conspiracy charges against the far right extremists who plotted to stop Biden`s win using force.

Now, at the top of the program, we went through the law and the implications. Now we turn to the defendants themselves, these people who the Justice Department says conspired to violently try to stop the election outcome and to violently overthrow the government by force.

Legally, they`re presumed innocent until they get their day in court. The top defendant is Oath Keepers leader Stewart Rhodes, arrested in Texas today, facing up to 20 years in prison the conspiracy count alone. And Rhodes was also planning more action after the insurrection, according to the feds.

He spent years at the forefront of this dangerous mix of trained military and law enforcement veterans who turned against the government they want to served.


In fact, here he was about a decade ago.


STEWART RHODES, FOUNDER AND LEADER, OATH KEEPERS: Oath Keepers is an association of current serving and former military police and firefighters, all of us who swore an oath to support and defend the Constitution against all enemies, foreign and domestic.

And the mission of Oath Keepers is to remind the current serving and also veterans of the responsibility under their oath.


MELBER: OK, let`s take that in and actually take it apart for a moment, because Rhodes cast that project as a kind of officialized vigilantism, where he and his compadres anoint themselves the arbiters of the Constitution.

They decide what they think about defending it and what it means. And he founded this group in 2009 with a reference to the Constitution`s oath, Oath Keeper. And then he argues his members will decide as well who are America`s enemies.

And let`s be clear. And you know I always try to keep it real with you. I`m going to be blunt. Rhodes is not some lazy slouch posting on the Internet without ever leaving home, talking trash in a comment thread on Reddit.

He actually has the kind of credentials that many elites across the spectrum invoke, Army paratrooper, graduate of the number one-ranked Yale law school. He also had a stint in government, albeit for a right-winger who is famously skeptical of government, but he was an aide to libertarian Congressman Ron Paul, who was famously to the right of the Republican Party, if you recognize the name, yes, the father of Senator Rand Paul.

So Rhodes is now the most senior indicted face of this insurrection. So, his stances, his history, his attempt to launder what they were really up to is all going to be very relevant right now.

And it is worth scrutinizing, apart from the court case, which will deal with the actions of those days that we discussed, it`s also worth putting some heat and pressure on the whole argument here that has been offered to so many thousands of people, including their members, some of whom, of course, have not been charged with anything.

Was this really about skepticism of the government in general? Or was it about something else?

This group started specifically in 2009, not out of a generalized academic concern with federal power, but specifically in reaction to something that many Americans thought would not happen, the election of Barack Obama as president.

And Rhodes did not respond by suggesting voter registration to oust Obama in the next election, or backing a strong Republican opponent, or even by criticizing President Obama or lying about him, all of which are perfectly legal in our democracy. No.

He said he saw the election of this first black president as a cause for people to arm themselves and prepare for war -- let me repeat -- urging his members to arm themselves and prepare for war.

And talking like that, he soon found followers. The new group grew into one of the largest far right anti-government groups in America, tens of thousands of present and former law enforcement members, officials, military veterans. That`s according to an organization which tracks extremist groups.

Now, there are still open questions about how operational Rhodes and this group actually is, how many of them actually want to literally wage war, which is chargeable by sedition and other things, and how many of them are talking tough and running around and not committing crimes.

Now, whether people like it or not -- I have said this before -- even in this tough time, talking trash lying, speaking in ridiculous extreme and hateful ways, much of that is protected under the law, whether you like it or not,. The point here isn`t to paint everyone with the same brush.

But, overall, the point is also to be clear-eyed about what we face. This group said it rallied around defending the Constitution from government power and abuse. So, think about that.

We`re a long way from these arguments being over. And the substance matters, especially for the people who may have been defending the Oath Keepers yesterday, may defend them today after this indictment. Even for those people who saw themselves as political extremists, they had this desire to argue that they were following some kind of principle.

They weren`t admitting the entire plot. They were saying that this was about government overreach. You can`t have a federal government reaching into everyone`s lives. It`s not just about Obama, they said.

But what happened when the federal government changed hands to Donald Trump, who openly mocked constitutional separation of powers, the oath, who tried to defy limits on the federal government`s ability to target political opponents -- that`s in your constitutional oath, it`s a biggie -- Who defied the rules about not trying to jail your opponents and upholding democracy, all in your oath, if you take it, if you work in government at any level?

Well, suddenly, this group, which claimed to oppose government overreach, well it found a wannabe authoritarian it loved, backing Trump at every turn in the recent era, growing to over 20,000 members that we know of.


So, by January 6, it had members directly working with Trump`s longest serving adviser, Roger Stone. They were seen together just by the Willard Hotel, which became something of a command center, where Trump allies like Bannon and Giuliani were plotting how to overturn Trump`s loss.


UNIDENTIFIED MALE: Roger Stone, a confidant of former President Donald Trump, flanked by men wearing insignias of a militia group.

UNIDENTIFIED FEMALE: You can see in that video Stone, who was recently pardoned by then President Donald Trump, near men in militia gear, two of them with Oath Keepers` insignias.


MELBER: Yes, you could see it in the video then at the time.

You can see it in a sedition indictment now. Perhaps the wider plan comes into clearer view. Trump White House aides like Peter Navarro recently admitting the coup plot, but arguing that these indicted violent insurrectionists, he says, actually complicated the effort for a bloodless coup, something illegal, but less violent, while Trump`s top election lawyer, Rudy Giuliani, admits the goal was to overturn the election, but insisting he had ways to do it legally.

It`s relevant to note his law license has now been suspended. He remains under criminal investigation and not charged with anything.

If you feel like some of these strands are coming together in ways that are concerning, you are right. If you feel like a lot of these people, who seem to proudly be extremists, and explain themselves as such, are still lying about their very project, you are right.

I can`t tell you what`s in the mind of every single Oath Keeper. And we don`t do guilt by association in journalism, try not to. I can tell you have a leader here who was responding specifically to the election of Barack Obama and who everything he said about federal power was nullified, if it wasn`t already obvious, by a leader like Trump being someone that he cottoned to.

So, yes, they are anti-government in the sense of our democracy, but not in any consistent or defensible or principled way. They`re just literally against having an American democracy.

Let that sink in. It`s clearly sunk into the point that DOJ thinks it can make these sedition conspiracy charges stick.

How big is the threat? And where do we go from here? We turn to FBI veteran Frank Figliuzzi, who has worked all of these kinds of domestic cases, when we`re back in 60 seconds.


MELBER: We`re back with former Assistant Director for Counterintelligence at the FBI Frank Figliuzzi.

We just walked through a bit more of what we know about this group with the sedition conspiracy charges today. Walk us through it.

FRANK FIGLIUZZI, FORMER ASSISTANT FBI DIRECTOR FOR COUNTERINTELLIGENCE: Yes, you`re right to raise the official founding date of 2009 following the election of President Obama, because there is -- there does seem to be a trigger here regarding the election of the nation`s first black president.

I say that because Oath Keepers traditionally shows up whenever a white police officer has a shot a black American. And they were in Ferguson, for example. They come quickly to the aid and defense of that officer.

Second thread that you mentioned is this whole constitutional linkage. You can see where it`d be very appealing to former cops, former military vets, hey, continue to uphold your oath. That sounds great, until you look at their membership process, Ari.

Someone`s got to screen you. You`re vetted. They want somebody to vouch for you. They`re checking you out, make sure you`re not a fed, undercover agent, you can be trusted.

So it`s all kind of a house of cards, a false notion, that we`re here to protect the Constitution and civil liberties, when, in reality, they`re founded on the principle that the government has a strategy to attack our civil liberties.

So it`s a house of cards. They even inflate their membership. They have claimed 30,000, 35,000. Perhaps it`s more like 20,000.


And then when you look at Stewart Rhodes and the involvement in January 6, I`m keenly interested in the possibility of cross-communications with other groups like this, 3 Percenters, Proud Boys. There`s been numerous reports that Rhodes was in communication with one or more of those groups, particularly Proud Boys.

And then, even more interesting, the affiliation with politicians to kind of legitimize themselves.

MELBER: Right.

FIGLIUZZI: So, where did they show up, rallies for politicians, members of Congress, senators?

MELBER: Right.

FIGLIUZZI: There`s a now infamous photo of Ted Cruz, right, with an Oath Keepers flag flying behind him at a rally.

And I`m taken by the detail in this charging document, Ari, quick-reaction forces set up with weapons around the city. You know who didn`t have a quick-reaction force that day. The federal government.

MELBER: Right.

FIGLIUZZI: But the Oath Keepers had it, highly weaponized, combat training, all laid out in this charging document.

MELBER: Let me ask you this, Frank.

Given how many cases you have worked, do you see any criminal exposure for other unindicted members at this point?

FIGLIUZZI: I absolutely do.

Remember, one in 10 of people charged on the January 6 violence has some military affiliation. I don`t think this is the end. And I believe we`re going to see extensions of this into Proud Boys and 3 Percenters.

MELBER: Very interesting.

I`m sure people are listening to someone like you saying that tonight.

Frank Figliuzzi, thank you for being part of our breaking coverage.

FIGLIUZZI: Sure. Thank you.

MELBER: Absolutely.

I mentioned earlier to you, folks, there`s a lot of news today. There is an absolutely huge Supreme Court ruling. It will affect every workplace in America. It`s about the Biden vaccine rules. Howard Dean is here. We got you with what you need to know next.



MELBER: Huge news today that will affect your exposure to COVID and how America continues through the third year of this pandemic, Omicron surging to record rates, with the Supreme Court today dealing the U.S. government and the Biden administration of blow in the effort to stop COVID, today blocking the Biden federal administrative plan for workplace vaccine rules affecting big companies.

Biden`s plan did not force anyone to get vaccinated in the first place. It required people at big companies, workers, to either test negative or get vaccinated in order to keep these workplaces safe.

Well, today, with six conservative justices blocking the rule, well, it`s right now no longer in force in America. The three more liberal-associated justices dissented. The ruling will send the plan back to a lower court.

Now, you may recall, when Republicans first sued over this, legal experts said there was very strong precedent for these kinds of safety rules. And the president said he was ready for the fight.


QUESTION: What is your message to Republicans who are calling your vaccine requirements an overreach, who are trying to challenge it in court.


We`re playing for real here. This isn`t a game.


MELBER: Playing for real. And coverage notes the Supreme Court had repeatedly upheld state mandates in a variety of settings against challenges.

Today`s ruling focuses in on the federal agency. And these conservative members of the court say COVID is a universal risk. They compared it to crime, air pollution and other diseases, and saying a federal agency regulating such risks would significantly expand its authority without Congress.

Now, that`s not to say that this Supreme Court is against any regulation of COVID safety. The court also separately upheld a mandate for health care workers specifically. Even that, though, was narrow, 5-4, and it affects about 20 million workers.

Now, take a step back from the law because this is more about safety and life than just some other legal debate. This is about safety rules in the workplace. If you have ever been to work, you know there are all kinds of rules about workplace safety, workplace hazards, and slip and fall, and parking and driving.

When you`re dealing with an ongoing pandemic, that`s the new normal. And the Biden plan didn`t get out into the trickier libertarian questions, like can the government enforce a rule where you`re never going to be able to work in most places if you get vaccinated? Because you`re an adult, and that`s a little trickier.

The only requirement here was to test people who were unvaccinated before they come into work. Imagine you go into work, and Ebola is raging, and they have a rule where we want to make sure you don`t have Ebola before you come into work. Is that in the public interest? Is it OK to find that out?

We`re talking about basic assurances that the people you interact with don`t infect you or your family, and we`re talking about a real world deadly virus that`s killed over 800,000 Americans?

I`m joined now by someone at the intersection of medicine and policy, Dr. Howard Dean, former DNC chair, former governor of Vermont.

Welcome back, sir.


MELBER: Absolutely.

I don`t know if this. We could have booked a lawyer. I know lawyers. I`m not bragging.

We come to...

DEAN: You are a lawyer.


MELBER: We come to you because I don`t see this as a legal issue. Law is just getting involved. It`s first a safety issue.

As mentioned, you got speed limits. You got workplace safety requirements. Testing is where Biden landed, just saying, look, there are going to be a lot of people, 100 or more workers. They either got to be vaccinate. A lot of people are. Or they got to test negative.

Does this set back the safety of Americans today?

DEAN: It does.

And the disturbing thing about this court is, in their right-wing ideological zealotry, they have substituted their judgment for public health judgment, which they`re totally unqualified to do. They did the same in the abortion case in Mississippi, or they look like they`re headed that way, where they substitute their judgment for the judgment of doctors and patients.

This is an ideologically motivated court. The law in many times is irrelevant, as we saw in the Citizens United case, which has really, I think, put the democracy of the United States in terrible danger. And this court is a real problem.


And I actually was quite disappointed in the Biden administration for not taking it more seriously. I thought their committee to look at it did essentially nothing and spend a lot of taxpayers` money.

This court is a threat to the United States of America. And it`s now a threat to women`s health, and it`s a threat to all Americans` health.

MELBER: Yes, I hear you.

I mean, again, this isn`t really about complex legal theory. One of the most famous Supreme Court rulings said the Constitution is not a suicide pact, which is the basic idea that, as you get out towards things that are going to wipe everybody out or wipe out the country, you kind of pull back from whatever nifty little legal tradeoff you might have had.

And we`re talking -- we`re living in the pandemic era. And we don`t know whether the next one, the next strain is going to be better or worse. We`re just buckling up and figuring out how to get through it.

And yet you have this language I want to read from the court that really gives away the game of the criticism you just made. The justices say: "The federal government says the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. It`s not our role away such tradeoffs."

Well, Governor Dean, I guess it depends. If the tradeoffs are enough people dying, it certainly would seem to be relevant to interfering in a situation where the government is protecting those lives. The appeals courts did say they have that power. Vaccine mandates have functioned in schools and elsewhere for a long time.

Your thoughts?

DEAN: Yes, this is -- again, this is just right-wing zealotry.

Three justices, Alito, Thomas and Coney Barrett, have complained that the people think the court is made up of partisan hacks. Well, it is. And this is why people say things like, is the majority is much more concerned with right-wing ideology and, frankly, authoritarianism, unfortunately, than it is with common sense.

The government has a right and a duty to protect us. And this situation is going to actually kill probably more Americans than died in -- certainly in World War II and maybe even, if we keep going at this pace, it will kill more Americans than died in the Civil War, which was the war which did more damage to this country than any other.

The court is just not helpful. They`re not using common sense. They don`t want to use common sense. And they really badly need reform. They -- first of all, they should have term limits. Second of all, they`re now 13 circuits, not nine, so they probably ought to the justice for each circuit.

There needs to be really fundamental -- the system has been gamed with dark money coming from the Federalist Society, which is not reported. Nobody knows where the money`s coming from. And it`s a real threat to democracy.

This decision, the Mississippi decision, the voting rights decision, the Citizens United, where corporations are now people that can put as much money as they want to into all kinds of political stuff and in many cases never be found out...


DEAN: ... the court is a threat to the United States of America.

This is actually a threat to individual lives, and there will be a great many of them, in seven figures, as a result of this.


Dr. and Governor Dean, appreciate your clarity on this. I hope people are listening.

We`re going to fit in a break.

When we come back, doing the limbo with Lindsey Graham. We will explain.



MELBER: New evidence today of the one litmus test in the modern Republican Party: There has to be allegiance not to ideas, the Constitution, but to a person, in this case, Donald Trump.

Senator Lindsey Graham, who has been all over the place over the years, is making clear that, well, basically, he has a threat against the person who technically outranks him in the party, Republican Leader Mitch McConnell.


SEN. LINDSEY GRAHAM (R-SC): Elections are about the future. If you want to be a Republican leader in the House or the Senate, you have to have a working relationship with President Donald Trump.

He`s the most consequential Republican since Ronald Reagan. It`s his nomination if he wants it, and I think he will get reelected in 2024.

Here`s the question. Can Senator McConnell effectively work with the leader of the Republican Party, Donald Trump? I`m not going to vote for anybody that can`t have a working relationship with President Trump.


MELBER: This is sort of a politically cowardly bank shot.

Graham has a vote for who`s the Senate leader, but he says his vote is just determined on who the Senate leader supports in the future primary, which is usually up to, yes, wait for it, voters.

So McConnell can`t keep his own job, according to Graham, unless he backs Trump. It`s a step down for Graham, who also had recently declared his independence from Donald Trump after the other big story of the day we have been covering.

Remember how Graham sounded in those tense times right after the insurrectionists tried to overthrow the government for Trump.


GRAHAM: All I can say is, count me out. Enough is enough. It is over.

Joe Biden -- and I have traveled the world with Joe. I hoped he lost. I prayed he would lose. He won. He`s the legitimate president of the United States.


MELBER: You won`t hear Graham talking like that now. He is much closer to the big lie and the January 6 minimizers.

But this runs far deeper. And people need to keep the facts in mind. Lindsey Graham is lying to you. And we know that based on the evidence from Lindsey Graham. This is how we talked about then-candidate Trump when it mattered and it was the public choice of whether to make him the nominee or president in 2016.


GRAHAM: We should have basically kicked him out of the party.

I think he`s a kook. I think he`s crazy. I think he`s unfit for office.

I don`t believe he`s a Republican. His policies are really bad for the country.

That he`s a jackass.

You know how you make America great again? Tell Donald Trump to go to hell.

Trump`s foreign policy is a complete disaster.


He`s a race-baiting, xenophobic, religious bigot.


MELBER: What more do you need to say?

We will be right back with news on voting rights.


MELBER: We`re also tracking news out of the Senate, NBC learning that the Democratic holdouts Sinema and Manchin met with President Biden tonight. They spent over an hour talking.

This is amidst the filibuster fight over voting rights, deep tensions on the Hill, Senator Sinema basically trying to short-circuit what was the big Democratic push from even having the vote, because she came out before President Biden arrived to the Capitol to say this:


SEN. KYRSTEN SINEMA (D-AZ): There is no need for me to restate my longstanding support for the 60-vote threshold to pass legislation.

There`s no need for me to restate its role protecting our country from wild reversals in federal policy. Eliminating the 60-vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy from threats in the years to come.


MELBER: Senator Sinema is doing what politicians do when they want to short-circuit pressure.

Maybe that`s a sign some of this pressure was beginning to work. But if you take her at her word on the Senate floor, she, even without Manchin, is putting an end to the Schumer-Biden strategy that was ramping up for that MLK Day vote.

We will stay on the story.

That does it for us on a very busy news day.

I think it`s time to keep it locked, with a lot of interesting developing stories that I will be keeping an eye on, as "THE REIDOUT WITH JOY REID" begins. We will be watching.