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Transcript: The Beat with Ari Melber, 10/18/21

Guests: Eleanor Clift

Summary

General Colin Powell is remembered following his death from complications from COVID-19. Will Steve Bannon be held in contempt of Congress? Several top Republicans worry on camera about just how much Trump is dragging down the Republican Party. Progressives push Manchin and others to finally pass the Biden agenda.

Transcript

NICOLLE WALLACE, MSNBC HOST: THE BEAT WITH ARI MELBER starts right now.

Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Nicolle.

We have all been following your coverage and commentary. So you have shared some of it.

But I am curious your further reflections on Colin Powell and also a time when people are looking for public servants to look up to, as we remember one.

WALLACE: You know, I said this to our colleague Andrea Mitchell a little bit ago.

Obviously, I shared a little bit of that history. He was icon status. I was mid-level White House staffer. The press people sometimes would be on their way into the Oval Office with bad news as the national security folks were on their way out of the Oval Office with the serious news.

So we used to run into him. And there was no one who I was sort of more starstruck by than him. He just had a presence. And his break with not just the Bush administration, but his break with the Republican Party -- I have been saying this all day -- was so seismic.

I don`t know that there was an endorsement that sort of had the impact. John McCain was someone that Colin Powell had known forever. And when he endorsed then-Senator Obama and laid upon him all of his decades of experience and sort of affinity and trust, it was a huge, huge, huge deal, both for then-Senator Obama and against John McCain.

And to hear Kori Schake say it, it was because of Sarah Palin. He just understood the country`s potential and the country`s dark forces swirling around on the Republican side, this extraordinary -- is it such a loss.

MELBER: Yes. That means a lot coming from you. And, as you say, he spoke out on many things when it mattered. And he knew of what he spoke, which is something.

So, as with all life cycles, there`s a morning here for people who knew him and there`s also what the rest of America can commemorate or take from it. So I appreciate that as we kick it off.

WALLACE: Thanks for asking.

MELBER: Thank you. Thank you, Nicolle.

WALLACE: Thanks, Ari. Thank you.

MELBER: Always good to see you.

I want to welcome everyone to THE BEAT. I am Ari Melber.

Ahead tonight, we have the story I was just discussing with Nicolle, as well as news as the insurrection committee here prepares to hold Steve Bannon in contempt. It`s a big deal. It`s a legal development that can land someone in jail.

I`m talking to you, Mr. Bannon. So we have a special report coming up on how that all works. That`s coming up soon in THE BEAT.

We begin, though, as mentioned, with what Nicolle and I were discussing, this death of Colin Powell at age 84 from COVID complications after battling cancer, a military leader, a diplomat, an American. His career really crossed decades of American history policy, foreign policy, and, yes, politics as we were just discussing, much of this echoing as people absorb the news today.

Powell was America`s first black national security adviser, Joint Chiefs chair and secretary of state. He went from a childhood in the southern -- in the south of the Bronx, I should say, to fighting in Vietnam, eventually advised not one president, which is a big deal, coming up at that time and from his roots, or two, nor three, but four different presidents.

We`re seeing an outpouring of tributes from leaders and people across all walks of life, across politics, across culture, America, and many around the world. Powell rising in public prominence initially in a region that would come to really define his career.

The first time out, it was seen far more positively and a necessary mission. He was the architect of the 1991 Gulf War. He also was then the public face of the Iraq War in 2003, something he spoke out about forcefully at the time, but also later, as he addressed what he saw as a blot on his record.

He put his own credibility, what Nicolle were just discussing, the reason that people saw him as such a straight shooter, well, in that instance, he did put it behind what the Bush administration called the intelligence and the need to act.

(BEGIN VIDEO CLIP)

COLIN POWELL, FORMER U.S. SECRETARY OF STATE: The United States knows about Iraq`s weapons of mass destruction, as well as Iraq`s involvement in terrorism.

This body places itself in danger of irrelevance if it allows Iraq to continue to defy its will without responding effectively and immediately.

(END VIDEO CLIP)

MELBER: Both the intelligence, the evidence, as well as the argument there, did not prove to be correct. Indeed, it became widespread across both parties in America that that was not the right argument of the day and it was not the right war to start.

There were no WMDs. But unlike many of his peers in that Bush administration, neocons who stood by the quagmire to the end, Powell acknowledged his own mistake. He said it was a blot, as mentioned, on his record and legacy.

[18:05:09]

And then, as Nicolle and I were discussing -- this was in 2008 -- Powell was a Republican at the time. And he did something that, again, by today`s lights may look like one more little development, but it was a huge deal for someone in his standing, who had elevated to all those top positions I mentioned, first within the military complex, which is nonpartisan, so not supposed to take sides, and then as a Republican appointee.

But he said he had to do what was right at the time with the choice facing America. He put everything on the line for this. Again, I mentioned this was before people knew what would happen or before people knew Barack Obama would become president. He might have literally ended all of his Republican career, but he did it.

He endorsed Obama for the reasons he said were important to the country, not himself, over his longtime friend John McCain.

(BEGIN VIDEO CLIP)

POWELL: He has met the standard of being a successful president, being an exceptional president. I think he is a transformational figure. He is a new generation coming into the world, on to the world stage, on the American stage. And, for that reason, I will be voting for Senator Barack Obama.

(END VIDEO CLIP)

MELBER: It was a big deal.

As we look at our recent era, Powell went further. He endorsed Clinton and Biden over Donald Trump. He ultimately left the Republican Party, although, like many of his generation, particularly of a certain more traditional conservative bent, he would say the modern Republican Party left him.

There was also further insight because of the way we live now, that Powell, who used e-mail and other ways to communicate, was found in a leaked e-mail to say something that he might have put differently, known for his diplomacy. He was the top diplomat in America.

But what he said privately was that Donald Trump was -- quote -- "a national disgrace and an international pariah." And he said the whole birther movement was racist.

Today, flags fly at half-staff at the White House to honor an American, Colin Powell. We reflect on his legacy and how it applies today, and particularly in the scorched earth politics that we`re living through today.

And we have some special guests.

We`re joined by Jon Meacham, Pulitzer Prize-winning writer, historian, and author of "Destiny and Power: The American Odyssey of George Herbert Walker Bush," and Eleanor Clift, a longtime Washington observer, a writer with The Daily Beast. Her article today is -- quote -- "Reluctant Warrior: Colin Powell`s Journey Comes to an End."

Welcome to both of you.

This is an individual, Jon, who, in many, many ways, lived an American dream, and really showed what was possible for him in his time, in his era, in his moment, and then, as we have emphasized in part of the history we just reviewed, was willing to publicly say when he was wrong and break with orthodoxy.

What are your reflections? And how much do we need that now?

JON MEACHAM, NBC NEWS HISTORIAN: We need it enormously. And we have always needed it. And I think General Powell did represent the best of the political general tradition.

He wasn`t perfect. He`d be the first person to tell you that. He actually loved the Washington game. He was a great gossip, and understood personalities, understood how the human nature of institutions is often, if not totally decisive, certainly influential.

What he represented was a vanishing tradition, if not vanished, and that was the tradition of an Eisenhower, a George Marshall, a George Herbert Walker Bush, people who were Republicans, but for whom the country came first, and that often cost them politically.

And, again, it`s not to say that those figures were perfect. But there was an ethos, there was an ambient reality, where public service mattered enormously to the practice of politics.

Where we are now is that politics actually is more important than public service. It`s become the whole enterprise. Used to be a means to an end. Now it`s an end in and of itself. And I think Powell represented the commingling of those forces in a really powerful way.

MELBER: Well, that brings us so -- in such a perfect way, Jon, to the -- to what I wanted to ask Eleanor about, which is the way that he practiced his politics, assiduously nonpartisan when he had to be in the military, but, then as a statesman, statesperson, he came out.

The way that he embraced Obama, who, again, I emphasize, at the time, people had no idea how folks were really going to vote, what was really going to happen, whether we would have our first black president as a country. And he went even further than that, and addressed the kind of religious discrimination that has been a part of American history and that was really resurgent on the right against Islam, against practicing Muslims, and other types of tropes.

[18:10:05]

Take a listen, Eleanor.

(BEGIN VIDEO CLIP)

POWELL: I`m also troubled by not what Senator McCain says, but what members of the party say and it is permitted to be said, such things as, well, you know that Mr. Obama is a Muslim.

Well, the correct answer is, he is not a Muslim. He`s a Christian. He`s always been a Christian. But the really right answer is, what if he is? Is there something wrong with being a Muslim in this country? The answer is no. That`s not America.

Is there something wrong with some 7-year-old Muslim American kid believing that he or she could be president? Yet I have heard senior members of my own party drop the suggestion he`s a Muslim and he might be associated with terrorists.

This is not the way we should be doing it in America.

(END VIDEO CLIP)

MELBER: Eleanor, I would draw our attention to his use of the word correct, which is to say what is accurate, and then the word right, which is to say what is moral.

And he was asking Americans to try to have a higher-minded moral politics in how we make our decisions. You needn`t vote for Obama because Colin Powell tells you to, but he would certainly argue that America is better if you vote for who you believe in, not against people based on their identity.

ELEANOR CLIFT, THE DAILY BEAST: Well, he is a man who came from the lowest rungs of American society, who had a presence, as Nicolle mentioned earlier, who had a presence that people looked at him and thought, oh, he must have gone to West Point.

No, he went to City College when tuition was $10 a semester. I think he had a sense of what it`s like to be marginalized in this country. And he navigated all those circles of power very deftly. He didn`t consider himself a politician, but he was a very political person.

He knew how to work all the angles, and he was a charmer. I think he saw in Obama a man who was going to take the step to be president that he himself had declined. In 1995, he been on a 25-city book tour, enormous crowds. Everybody was assuming this was a prelude to his announcing he would run for president.

Then he walked to the microphone, and he said he couldn`t do it. And he said he didn`t have the same enthusiasm for politics that he had every day in his belly when he was a soldier. He suffered enormous stress over the decision. His wife was opposed.

And then, fortuitously, I guess you could say, a few days before he made this announcement, the prime minister of Israel was assassinated. And it was a time -- I mean, we`re portraying it now as kind of simple and innocent compared to what we`re in now, but there was the fear of assassination. And he never looked back.

I mean, that was the right decision that he made. And he didn`t really leave the Republican Party, even though he supported Obama in two elections. He voted for Hillary Clinton over, as he put it, that other gentleman who is not qualified.

And it wasn`t until January of this year, after the insurrection, that he said: I`m no longer Republican.

So, it took him a while. It was the culture he was in. But the culture changed of that party, and he could no longer abide it.

My only regret is, I wish he had spoken out more over the years. But he was a soldier. He respected the chain of command. And he was very much opposed to the invasion of Iraq. But he didn`t resign. And he said he didn`t resign because, initially, it went well, and then the planning wasn`t good.

And he said, you don`t walk away in the middle when things aren`t going well.

So I respect the way he`s handled all of these major events. I respect the way he handled his life. So, yes, he will be missed at a time when we need more people like him.

MELBER: You mentioned his reaction to the January 6 insurrection.

Let`s take a listen to him speaking after that.

(BEGIN VIDEO CLIP)

POWELL: I have never seen anything or experienced anything like this in my many years of public service. Yesterday was a national disgrace, but we will come through it.

But, once again, we see President Trump doing things that are absolutely outrageous, criminal, claiming that he is going to be the president of the United States, when he knows he isn`t.

(END VIDEO CLIP)

MELBER: Jon?

MEACHAM: Well, if you -- imagine you`re a lifelong soldier. You fought in Vietnam. You commanded. You had other people`s lives in your hands. You commanded Panama. You commanded the first Gulf War.

[18:15:05]

You were standing on duty as the Berlin Wall comes down. Nuclear Armageddon had been an ambient force, the possibility of it, your entire military career. The rule of law mattered. Civilian control of the military mattered. The oath you swore was to the Constitution, not to a particular president or a particular person or a particular party.

And then you`re sitting there in McLean, in retirement, and you`re watching everything you fought for be assaulted, led by a lying, defeated American president, who`s seeking to be a dictator.

Of course, you`re going to react with that kind of controlled passion, but clearly passion. Everything he cared about was at stake. And I`d argue -- and I think he would say the same thing -- still is at stake. Democracy, the constitutional order that he defended and he sent other people`s children into harm`s way to defend and project is still in the balance.

And so I think, an important lesson, an important thing for folks to think about is that this man gave his life and also had the lives of others in his hands for an idea, an idea that we were, in fact, created equal and that the rule of law mattered and that, however imperfect, we struggle forward, and we do so if we obey the rules, not if we pursue our own will to power no matter what.

That`s -- I think that`s what Colin Powell would say today. And I think we should bear that in mind.

MELBER: Yes, all very important points.

As we reflect on that, I want to thank Jon and Eleanor.

Appreciate both of you walking us through this to start the program.

We turn to the other big news, basically, next. We have a special report on this key vote to hold Steve Bannon in contempt. What does it mean?

The longtime provocateur is under fire. He could end up in jail. I`m going to explain all of it legally. And it`s all really turning on his relationship to Trump.

(BEGIN VIDEO CLIP)

MELBER: You think impeachment is on the ballot in November. Why?

STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: Trump is against, is at war with the permanent political class.

MELBER: Is there anyone you would not take money from?

BANNON: Well, I would not take money from foreigners, right?

MELBER: Are you a witness of fact to the investigation regarding obstruction or collusion, or both?

(CROSSTALK)

MELBER: Well, let me finish the question. And then you get your time.

BANNON: Yes. Yes. Yes. Sure. Sure. Sure. Sure. Sure.

MELBER: Did it ever shake your view? Did you ever say...

BANNON: No. No.

MELBER: ... maybe I shouldn`t be with this person?

BANNON: Absolutely not.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[18:21:20]

(BEGIN VIDEO CLIP, "MY COUSIN VINNY")

FRED GWYNNE, ACTOR: If I hear anything other than guilty or not guilty, you will be in contempt.

I don`t even want to hear you clear your throat. I hope I have been clear. Now, how do your clients plead?

JOE PESCI, ACTOR: I think I get the point.

GWYNNE: No, I don`t think you do. You`re now in contempt of court. Would you like to go for two counts of contempt?

PESCI: Not guilty.

(END VIDEO CLIP)

MELBER: The classic movie "My Cousin Vinny" has that clear lesson on the power to hold people in contempt.

As a inexperienced lawyer, Vinny underestimated how real the threat of jail can be. And he learned the hard way. You see him here spending time in jail with his client. And he had to do that because the judge held him in contempt, a word that we have been hearing a lot lately in the House investigation into the MAGA insurrection.

Trump loyalist and right-wing provocateur Steve Bannon is defying the probe`s lawful subpoenas. He`s saying that in public. It`s not in dispute. So now he faces this criminal contempt vote tomorrow, and then, eventually, the prospect of jail.

Now, many problems these days can seem new or worse than before. We talk about that in all sorts of discussions on air and off. But when it comes to this kind of congressional sparring, the contempt power has a pretty long history.

(BEGIN VIDEO CLIP)

BRYANT GUMBEL, NBC NEWS: The House has voted to cite EPA chief Anne Gorsuch for contempt of Congress. It`s the first time that`s ever happened.

UNIDENTIFIED FEMALE: A House committee has decided to cite Attorney General Janet Reno for contempt.

UNIDENTIFIED FEMALE: The House Judiciary Committee has approved contempt of Congress charges for White House Chief of Staff Josh Bolten and former counsel Harriet Miers. Both refused to comply with subpoenas.

SAVANNAH GUTHRIE, CO-HOST, "THE TODAY SHOW": The House voted to hold Attorney General Eric Holder in contempt of Congress.

CHUCK TODD, MSNBC HOST: The House Oversight Committee voted to recommend holding Attorney General Bill Barr and Commerce Secretary Wilbur Ross in contempt.

(END VIDEO CLIP)

MELBER: So, many clashes do reach this point. A range of officials have been held in contempt, including some in the Trump era.

But not all contempt is the same, which brings us to our special report right now on how this really works. It could inform the fate of Steve Bannon or others.

This also matters because Congress` ability to enforce its own putative powers can then shape how much power Congress really has and whether people who defy the rule of law, which seems to be happening more lately, or people who promote insurrections can just get off the hook by breaking traditions that most other people have and the general arc of it followed in the past.

So this matters a lot. Now, a key precedent goes all the way back to the `80s, when a Reagan environmental official and the mother of current Supreme Court Justice Neil Gorsuch became the first federal agency official ever held in contempt.

Now, the basics of that standoff was somewhat similar to today. The question was whether this evidence would go to Congress. And back in 1982, she resisted and said she would sooner go to jail than comply. Now, in that case, she ultimately resigned. The documents were turned over. So the standoff basically ended and Congress got a lot of the evidence it wanted.

I mentioned that because it left a muddled situation for the Justice Department, which did not prosecute her, but then went on to prosecute another official in that same clash for contempt charges, also for defying demands to testify.

[18:25:03]

And yet this precedent can show why contempt is trickier in congressional cases than a courtroom like "My Cousin Vinny," because, even though they went forward on the contempt, and they went after her, a jury then acquitted that official in the contempt case.

Now, she was also later convicted and jailed for a separate perjury charge. But the contempt did not stick. I mention that because it does show that, even in the rare times where DOJ goes this far, people can beat the cases. And prosecutors don`t like to bring cases unless they see a clear path to victory.

Now, the other thing about congressional contempt is, the justice system does tend to view it as more political than traditional cases. Now, let me explain what I mean by that because it`s going to matter with this vote on Bannon tomorrow.

One person`s principle might look like political hypocrisy to someone else across the aisle. And history shows that these squabbles invoking contempt have that quality, which is something that judges and the DOJ, to some degree, don`t always want to pursue.

So, for example, there were cases of contempt that did not lead to any charges against Bush officials, against Obama`s first attorney general, Eric Holder, who faced this scorched-earth campaign by House Republicans, but few legal experts thought there was any actual basis for contempt there.

If anything, they thought there was an effort to beat up on the first black attorney general. Now, the party switched places when Democrats held Trump Attorney General Barr in contempt, and, again, no charges there.

Now, the point is not necessarily that, well, all congressional contempt cases are inherently partisan, but, rather, the political heat does complicate whether DOJ decides to step in and try to send someone to jail, like in "My Cousin Vinny," which is a big deal.

The political energy around it makes it, if anything, a somewhat informally higher bar to go take a contempt referral from Congress and enforce it. That is exactly what the pressure is going to be on Biden Attorney General Merrick Garland. He`s going to have to decide, if Congress does hold Bannon in contempt tomorrow, whether to pursue this and whether it is not fundamentally partisan, but fundamentally about justice.

But, unlike contempt by a judge in court, which is sort of self-enforcing, here, Congress basically hands the call over to DOJ and then, as I`m emphasizing, DOJ separately and independently decides whether to pursue well, in this instance, a criminal case against Bannon.

If they do, it`s a biggie. You got huge fines on the table, up to a year in jail. Now, everything I just said is about criminal contempt, which requires those DOJ prosecutors. Then there`s another type of contempt that is a bit more self-enforcing, like the courtroom example.

This is something Congress could do itself, hence the name inherent contempt. In fact, on THE BEAT, one of our legal guests recently brought it up.

(BEGIN VIDEO CLIP)

ELIE MYSTAL, "THE NATION": Congress should use its other power. It`s not criminal contempt we need. We need inherent contempt.

If you or I ignored a subpoena from a court, we would be in jail. We would not pass go. We would not collect $200. We would go to jail, because courts have an inherent contempt power. They can jail you until you follow their rules.

(END VIDEO CLIP)

MELBER: That`s true. But Congress has not gone near that power since 1934, when a Hoover commerce official, William MacCracken, actually spent 10 days in that jail for defying a Senate probe. It was a harsh move upheld in 1935 by the Supreme Court, which found Congress has the power to coerce documents production by means of arrest.

And while this Congress has not suggested it would go near inherent contempt, that`s certainly part of its rightful powers of oversight. Congress is supposed to legislate and oversee the executive.

Now, that process becomes nearly impossible if the executive or its ex- members like Bannon can stonewall and duck the whole process by just hiding. And an earlier Supreme Court decision says flatly: "A legislative body cannot legislate wisely or effectively in the absence of information. Some means of compulsion are essential to obtain what is needed," to obtain that information and evidence of oversight.

So the main avenue for Congress here is the more traditional contempt enforced by the courts. Now, the most prominent modern example involved an ally of then-President Clinton, Susan McDougal, who defied the request for testimony, just like Bannon is doing.

Now, her opponent there was the Whitewater grand jury. She went behind bars for a year-and-a-half of prison time for contempt. And she spoke out on her decision.

(BEGIN VIDEO CLIP)

GUMBEL: She joins us this morning from the Faulkner County detention center in Conway, Arkansas.

There are those who are obviously hoping that in prison will prompt a change of heart on your part. Are you having any second thoughts about refusing to answer questions?

[18:30:00]

SUSAN MCDOUGAL, FRIEND OF BILL CLINTON: I don`t know what the future holds, but I can tell you, I don`t -- I become stronger with each day.

(END VIDEO CLIP)

MELBER: Stronger with each day.

Mr. Bannon and his lawyers might want to take a look, though, at that scene, contempt leading to someone sitting in that prison jumpsuit inside a prison for a long time.

Now, McDougal was imprisoned under this third and final type of contempt, civil contempt. Now, that uses the courts, like criminal contempt, but it`s a civil lawsuit, just like any other lawsuit in America that you have ever come across, civil. You can just sue people, right?

Now, this is aimed at forcing the people to comply. Criminal contempt is really more like a punishment of someone who`s not complying and definitely won`t. McDougal didn`t back down, actually. So she was -- after that imprisonment for civil contempt, she was then hit with separate new criminal contempt charges to go after the punishment.

And that`s an interesting footnote, because a jury did not convict her on that second round, but, rather, deadlocked on those criminal contempt charges, forcing a mistrial.

So, what are the takeaways here? Well, one, Congress has options. Two, contempt is a very real, valid power. It can land you in that jumpsuit I just showed you. But it also can take a long time with long odds to get to the jumpsuit.

That`s the punishment that really makes a difference for many witnesses. And, three, this is not just another investigation we`re talking about tonight. This is not just oversight of the EPA, even if that`s also important. This is the congressional reckoning for a violent attack on Congress and democracy to overthrow an election, with plotters and supporters still out there, while some of the people seeking to return to power are trying to ride this MAGA movement to do it.

That includes Bannon. You see there on the screen talking about action and rallies. It may include Mark Meadows, who was chief of staff and who has been challenging the legitimacy of Congress to run this probe.

And it goes to the point I mentioned earlier. What people can get away with tends to impact what they try to do next. And during the Trump administration, they made congressional defiance standard.

So there have been many interbranch clashes before. The history does not suggest this is the first time. But the Trump White House went farther. And they blatantly defied two impeachment probes, including one where one of the articles was obstruction of Congress.

They defied valid requests for testimony. They defied getting the truth out of Trump`s top lawyer, Don McGahn, who defied that 2019 subpoena. And, remember, that was a battle he ultimately lost. He had to give private testimony.

They also defied lawful requests for Trump`s taxes. The Treasury secretary, Mnuchin, defied a subpoena on that score. It was another battle that Trump lost, though all the defiance did by them time with delays.

Now Trump is the person publicly and, apparently, privately telling these aides and allies, defy this next insurrection probe. So Trump is now at the center of a legal strategy that could land his own aides in jail.

Seeing Steve Bannon take Trump`s orders is also a shift for these two, because, remember, they had that very ugly falling out the left Bannon claiming for a time that they were both just doing their own thing, and Bannon didn`t know Trump that well to begin with, and all that kind of stuff.

It`s something I pressed Bannon in a BEAT interview at his Washington townhouse.

(BEGIN VIDEO CLIP)

MELBER: What`s your current relationship with President Trump?

BANNON: You can see it every day on -- in TV. I mean, it`s exactly what people report. President Trump`s doing his thing. I`m doing my thing.

Remember, I didn`t really know President Trump that well before I stepped in took and in as CEO of the campaign.

MELBER: He said a lot about you when you had a public parting.

BANNON: Sure.

MELBER: Do you think he still believes those things about you?

BANNON: I don`t know and I don`t care.

(END VIDEO CLIP)

MELBER: Bannon claiming he didn`t know and didn`t care and, you know, they`re just both out there doing their own things.

Well, now they are doing this one big thing together, defying the probe into January 6, that infamous day that Bannon hyped in advance and continued to in many ways defend on his media show.

(BEGIN VIDEO CLIP)

ROBERT COSTA, "THE WASHINGTON POST": He`s telling Steve Bannon over at the Willard Hotel: "We need to kill the Biden presidency in the crib."

That was the phrase, based on our reporting, in that conversation.

BANNON: Yes, because of his legitimacy; 42 percent the American people think that Biden did not win the presidency legitimately. It killed itself.

People are on the time, on the cycle. You got to do this. You got to jump to this. You got to declare martial law, insurrection. Chill. Take a deep breath.

This is the complete charade that is the 6th January committee. This is exactly what they`re trying to do. They`re trying to basically bring charges against President Trump to stop his sweeping victory that is going to come.

(END VIDEO CLIP)

MELBER: The other thing that changed for Bannon is, he was indicted for defrauding Republican donors. That`s a huge legal headache, facing a risk of jail there.

[18:35:04]

But he was spared when Trump pardoned him, a legal admission of guilt.

Now, the New York DA is investigating whether to indict Bannon for a local version of those same charges, while Congress is recommending a criminal case in D.C.

So to paraphrase the New York rapper Big Noyd, Bannon could be going to court for two cases in two places, one in D.C., one in Brooklyn, and the way things is looking, he could see central booking.

Or he could cooperate under this pressure. He could cut the risk of jail time. Why would someone who got pardoned and got to move away from all of that risk of jail now take these new risks? Does Mr. Bannon just relish the fight? Or is he more worried about the possible evidence against him relating to the insurrection?

And how does the DOJ look at this kind of legal hardball and contempt from Congress?

Well, we have the perfect guest. DOJ insider Neal Katyal joins us live in just 60 seconds.

(COMMERCIAL BREAK)

MELBER: We`re tracking several developments out of this January 6 probe.

We were just covering the push for contempt. And now we have breaking news that former President Trump is formally suing the January 6 committee, as well as the National Archives. This is a new suit. It`s distinct from the contempt issues, but alleges harassment of Trump and senior members of administration and alleges a -- quote -- "illegal, unfounded and overbroad records request."

So, former acting U.S. Solicitor General Neal Katyal is here to give us expert quarterbacking on more than one story related to all of this.

Thanks for being here, Neal.

NEAL KATYAL, MSNBC LEGAL ANALYST: Thank you.

MELBER: Let`s go in order, because we just ran through contempt. And then I will be very interested to your reaction the executive privilege story.

But, first of all, given what we just walked through and the history, where do you see this potential contempt of Mr. Bannon fitting in? Is it a stronger case or more of a jump ball? And what would happen next, in your view?

KATYAL: So, Ari, the fact that the House is pursuing contempt charges against Steve Bannon is not at all surprising. Liz Cheney and others have telegraphed that for a long time. And Bannon is essentially acting like someone who`s guilty, like a man with something to hide.

And I loved the segment you did just now, which I thought laid it out really well. The one thing I`d say though, is, this is really different than like the past examples, like a land deal or EPA or whatever.

I mean, this goes to kind of the heart of democracy and what happened on January 6 and an armed attack. And so I don`t think those earlier precedents tell us too much. Like in other words, I think the Justice Department and Merrick Garland, if the House votes for contempt, has to enforce it. I don`t think it`s, like, discretion -- it`s nearly as discretionary as past examples.

MELBER: Wow.

Well, Neal, I will let you continue. But if we were sitting in a law office, and you said that as senior partner, and I was a research associate, I would only say to you, you`re right, but those are the only precedents we have.

So, explain to the viewers what you mean about why they might not -- they`re what we have, but they might not really rise, none of them, to the stakes here.

KATYAL: Because the kind of key thing in any privilege is the need for the evidence. And the need for the evidence does turn on not just how important the evidence is to any particular case, but what`s the particular case about?

This is the most monumental, important investigation in our lifetimes, or close to it, if not at that level. And so prior contempt decisions don`t really tell us too much. And if I`m sitting in the attorney general`s seat, I just have to think like, yes, the public has a right to this evidence. The Justice Department has a right to get this evidence.

And someone who`s stonewalling and acting like a guilty organized crime member is not someone who deserves any benefit of the doubt. And so he`s got to come and tell the truth under oath.

MELBER: Interesting. So let`s play it out. You, as you have just said, think Garland would look at the evidence and see the strong need to move forward.

[18:40:05]

Then, in this scenario, do you see -- because there`s no pardon hopes for Bannon in this situation. Do you see him then buckling and reaching accommodation? Or do you see him going full McDougal?

KATYAL: Who knows. I mean, he`s a wily character. And who could predict?

I do think there`s one other intervening thing, which goes to the breaking news you mentioned before, this lawsuit by Trump filed a couple hours ago to try and delay and assert executive privilege over all of this material, which could become relevant in the Bannon thing, except that the lawsuit, well, to use I think the term we teach in law school, it`s junky,

I mean, I haven`t seen a legal definition of executive privilege to stretched this thin since Trump tried to prove he ran a university.

And, Ari, I think that there are three fundamental problems with it. One, Donald Trump is no longer the president, and the Supreme Court has said, really, the privilege is held by the incumbent. And Trump literally filed this lawsuit. He said -- quote -- "In his capacity as the 45th president of the United States, that`s a title with about as much legal significance as, you know, also-ran in the 2005 Emmy Awards or something. Zero significance.

Second, the scope. When Congress created executive privilege to protect what they call the deliberative process, I don`t think the deliberation they had in mind was trying to overthrow democracy. So I just don`t think that privilege applies to this kind of stuff.

And then, thirdly, just the claims themselves in the lawsuit. Like, literally, the lawsuit says that Congress is acting -- quote -- "vexatious in an illegal fishing operation, ` which is kind of rich coming from a guy who wanted the Justice Department to investigate whether Italians beamed in Biden pallets from space and stuff.

I mean, it`s just absurd start to finish. And that`s why I do think, if you`re Bannon or if you`re Trump, you got to worry about the vote tomorrow on contempt. This has a lot of gravity behind it on a really serious investigation.

MELBER: Interesting.

So we got you there on contempt, on that breaking news. The last item, just briefly, Supreme Court here, continuing to carry out its view of the legal doctrine that provides a type of immunity for police.

Reading from Reuters here, it notes, these new rulings indicate the justices think that, if anything, lower courts are -- quote -- "denying that police immunity too frequently" in cases of alleged excessive force amidst the reckoning we have had.

This is what we would expect. We weren`t expecting them to make some new law here. But your reaction, and does it concern you at this juncture just how this is working in the courts?

KATYAL: It really does.

So, Ari, there`s two ways to hold police accountable for brutality. One -- or murder. Like, one is like what we`re doing in George Floyd, criminal prosecutions of the cops. The other is civil lawsuits against them, saying that they shouldn`t -- they owe money to the victims.

And what the Supreme Court today did is double down on this judge-made doctrine that they made up called qualified immunity, which says your rights have to be clearly established before you can bring a lawsuit, which just is a damper to all these lawsuits going forward.

And the Supreme -- there`s been a concerted move from both the left and the right to say this thing has no basis in law, it`s made up, and really undermining our fundamental constitutional rights. And, unfortunately, the Supreme Court today said, well, we`re not going to entertain those challenges to qualified immunity.

MELBER: Yes. I did want to get you on that too, again, a lot of important stuff going on.

Our thanks to Neal.

I want to tell everyone, as always, you can go to MSNBC.com/openingarguments, where the solicitor and, as of today, senior partner of THE BEAT, Neal Katyal, has his archive. A lot of interesting stuff on there.

Now, coming up: Several top Republicans are worrying on camera about just how much Trump is dragging down the Republican Party.

And progressives pushing on Manchin and others to finally pass the Biden agenda.

A special guest when we return.

(COMMERCIAL BREAK)

[18:47:39]

MELBER: The Biden administration starting this new week looking for a deal in Washington, and there are reports of some developments that suggest possible breakthroughs.

So, we turn to our Washington expert and MSNBC contributor Katty Kay.

How you doing?

KATTY KAY, MSNBC CONTRIBUTOR: Hi, Ari.

MELBER: Hi.

One headline, Katty, is these reports that, after a lot of public movement and debating and public, Joe Manchin has met with the progressive leader, Jayapal, who has really been leading this charge.

I`m curious what a fly on the wall might have heard and what you think that means about the any potential breakthroughs?

KAY: Look, I think this would be good news for the White House, because Joe Biden has also met with Congresswoman Jayapal. And there is a real debate, though, still, according to my reporting within the White House, about how you trim this package.

If you`re going to trim the Build Back Better package, do you trim it in the way that Joe Manchin seems to want, which is you basically do one or two things, but you do those well, or in the way that Congresswoman Jayapal seems to want, which is, you may reduce spending on all of them, but you keep everything, every single element of the package in that Build Back Better plan?

Now, if the two can come together and get to some kind of resolution, that would be good news for the White House, if they can get to resolution. The trouble is that Congresswoman Jayapal is also tweeting that this would be a great day to say that they`re going to stick to things like the child care provisions, the climate provisions.

Those are specifically the things that Joe Manchin has said he wants out of them. So, the reality is there just isn`t very much common ground between what progressives want and Joe Manchin wants, however much Joe Biden meets with both sides, which is what he`s been doing here.

MELBER: Yes.

So who has the final call here? I mean, at a certain point, they`re however far apart, and then what?

KAY: Yes, I mean, the indications at the moment are that it doesn`t look great, right, for an October the 31st deadline.

Now, Democrats from the sort of centrist Democrats and even some from the Progressive Caucus that I have spoken to have said, when we look back in history, does it matter if we get it done by October the 31st? They`re prepared for this to go longer. They`re saying, what matters is that you introduce social welfare programs into the American system that fundamentally reshaped the American economy, and nobody`s going to look back in history and said, my goodness, it took -- we missed a couple of deadlines in the progress.

[18:50:05]

But that doesn`t get us to the fundamental thing is, which is, if you`re going to cut from $3.5 trillion down to $2 trillion or perhaps even $1.8 trillion, what is it you`re going to cut? How are you going to square that circle?

And I`m not hearing indications from Congresswoman Jayapal that she has reconciled to what Joe Manchin seems to be suggesting, which is cut the child care spending and cut the climate change spending. She doesn`t want - - she wants both of those to stay.

MELBER: Right.

And that really speaks to sort of where the standoff is and remains, and yet a lot of talk about doing it, as you say, by Halloween or shortly thereafter.

Katty Kay, thank you, as always.

We have covered a lot of different topics tonight.

Up ahead, we have a new turn in that sex crime probe that involves Congressman Matt Gaetz.

Stay with us.

(COMMERCIAL BREAK)

[18:55:00]

MELBER: New developments for scandal-ridden Republican Congressman Matt Gaetz.

He`s been facing this open federal sex crimes probe. A judge today in Florida has now granted a sentencing delay for Gaetz`s convicted ally Joel Greenberg, prosecutors agreeing with this delay. They say the Greenberg case is, in their words, unusual because there are several investigations that he`s helping with.

That alone is interesting. Gaetz has denied all charges. Also, he recently made a point to publicly and for the first time distanced himself from Greenberg.

(BEGIN VIDEO CLIP)

REP. MATT GAETZ (R-FL): I believe there may have been a time where Greenberg swung by the office, but it certainly didn`t have anything to do with any bad acts on my part.

QUESTION: You guys still friends, or -- I`m assuming the answer`s no.

GAETZ: No, when I became aware of some of Greenberg`s misdeeds, I deeply regretted my friendship with him.

(END VIDEO CLIP)

MELBER: The judge setting Greenberg`s sentencing now for March of 2022. And, though we don`t know everything, we do know it shows the judge sees it as credible that there is more time and more investigating to be done.

We will be right back.

(COMMERCIAL BREAK)

MELBER: Thanks for watching THE BEAT.

What time is it? It`s time for "THE REIDOUT WITH JOY REID."