Summary
The Supreme Court hears arguments on Texas` abortion ban. The Biden administration wins a court ruling on vaccine mandates. Virginia prepares to vote for governor. Barack Obama delivers a civil rights message.
Transcript
NICOLLE WALLACE, MSNBC HOST: THE BEAT WITH ARI MELBER starts right now.
Hi, Ari.
ARI MELBER, MSNBC HOST: Hi, Nicolle.
Do you have coffee for tomorrow, for tomorrow night?
[18:00:00]
WALLACE: I`m going to stockpile it.
I`m going to end up with an I.V. one of these nights.
(LAUGHTER)
MELBER: Will it be a late night? Only you can tell us, you and maybe Steve.
WALLACE: I think it will be, but I not sure. I just have a feeling. It`s not anything I have seen in the polling.
But I think that both sides are claiming momentum. And you never really know who`s telling the truth until you start to see Steve Kornacki at the board.
MELBER: Until we get the votes and the board.
(LAUGHTER)
MELBER: We will be watching, Nicolle. See you soon.
WALLACE: Thank you, Ari.
MELBER: Absolutely.
I want to welcome everyone to THE BEAT. I am Ari Melber.
We are tracking a couple things, today`s Supreme Court arguments on choice, women`s rights and abortion. Wendy Davis, Neal Katyal join us this hour on that.
We also have a legal update on Biden winning some of the mandate wars.
And, later, something special about President Obama and civil rights.
But, as Nicolle and I were just discussing, we begin here in Virginia, on the eve of the first major election since 2020, this governor`s race between Democrat Terry McAuliffe running for his old job against Republican Glenn Youngkin, with local issues like jobs and COVID competing with the national realities about the state of the Biden agenda, that spending vote, which may in the end come too late to boost any enthusiasm for the Democrat on the ground there, and a test for a Republican Party balancing Trumpy drama with electoral reality.
A Republican candidate trying to have it both ways, as "The Washington Post" editorial recently put it, appealing to the suburban centrists out there, while trying to pacify the MAGA faithful. It is a dance that has been occurring in public, Democrats trying to exploit exactly that as a weakness, potentially, for Republican Glenn Youngkin.
(BEGIN VIDEO CLIP)
FMR. GOV. TERRY MCAULIFFE (D-VA): He`s created hatred and division, just like Donald Trump.
JOE BIDEN, PRESIDENT OF THE UNITED STATES: Terry`s running against an acolyte of Donald Trump.
MCAULIFFE: We don`t want Trump. We don`t want Youngkin.
BIDEN: He won`t allow Donald Trump to campaign for him in the state.
QUESTION: Would you rally with Donald Trump if he came to Virginia this week?
GLENN YOUNGKIN (R), VIRGINIA GUBERNATORIAL CANDIDATE: Well, he`s not coming.
BIDEN: What`s he trying to hide? Is he embarrassed?
(END VIDEO CLIP)
MELBER: Now, close observers know he`s trying to hide the elephant in the room, even boycotting his so-called tele-rally that Trump himself is trying to hold tonight.
Now, candidates in the GOP in more deep red states would jump at any appearance with Trump online. Also, the candidate following up a claim last week that he hasn`t talked to Trump, by now saying, well, their teams are talking, surely, and digging into MAGA cultural attacks on Critical Race Theory, and then going down the cancel cul-de-sac, with talk of banning books, like Toni Morrison`s Pulitzer Prize winning novel "Beloved."
Please.
Now, these stunts may appeal to some of the MAGA turnout crowd in this off election year. But we do know it`s not where most of the state of Virginia is. Obama first turned that state blue back in 2008, winning by six points. And it only got worse for Republicans under Trump.
To paraphrase the late, great Nipsey Hussle, Democrats feel like, the last time that they checked, they won by 10 points, no sweat, and there was no smut on their rep.
So last time that they checked, it shouldn`t be a tight race. And yet it is. It looks like a tight race from the indications we have. Nothing matters to you get all the votes in. I will always tell you that. I`m not predicting, but there`s also history that serves the Republican argument here, because Virginia is this off-year race.
And, historically, it almost always flips back to the party that just lost the White House the prior year, because opposition in politics breeds energy. And that leaves plenty of questions on this election eve about which history may echo tomorrow night.
Let`s get right into it.
We have Pulitzer Prize-winning columnist and associate editor for "The Washington Post" Gene Robinson, Democratic strategist Juanita Tolliver, and former Congressman from the great state of Virginia Tom Perriello.
Tom, we go to you, as the Virginian. Which history will echo, do you think?
FMR. REP. TOM PERRIELLO (D-VA): Well, listen, we will know when the votes were counted, but the early vote looks very strong for Terry McAuliffe and an incredibly diverse slate of delegate candidates that are also up for grabs.
We do see that historical headwind that favors Republicans. We still have off-year elections that have been protected in Virginia to try to minimize African-American votes. But what we have seen is two things, a Republican Party that can`t quit Trump, and we have seen a Democratic Party that has delivered at the state legislature all the things that Congress we hope is going to do, raising the minimum wage, family and medical leave, decriminalization efforts that Youngkin tried to run against, but found was very popular even with swing voters.
So we see Democrats that have delivered and are trying to unite folks against really a set of culture warriors that most parents are just getting a little sick and tired of, of dealing with. And I think tomorrow is the chance to show whether that inclusive Virginia continues, whether the adults in the room stay in charge, or whether we see this Trump 2.0 rise, succeed.
[18:05:05]
MELBER: Gene and then Juanita.
EUGENE ROBINSON, MSNBC POLITICAL ANALYST: Well, look, history is on both sides of this race, because, historically, for the last like 50 years, the party that wins the White House loses the Virginia governor`s race the next year, except for one time, when Terry McAuliffe beat the odds in 2013, after Barack Obama`s reelection.
So, on the other hand, Virginia has been becoming a bluer state. And as -- so the fight is really over those suburban voters who have been trending increasingly Democratic, who have been turned off by the Republican Party in general, and certainly were turned off by Donald Trump.
And you might know what`s going to happen tomorrow, but I don`t, because you have got these two trends pulling in different directions, and we`re just going to have to wait.
MELBER: Juanita?
JUANITA TOLLIVER, MSNBC POLITICAL ANALYST: Yes, I agree with everything that`s already been said so far.
And I really want to emphasize the point that, as someone who`s been tracking the data on this, what I`m keeping my eye on is Democrats fully aligned behind McAuliffe and Republicans fully aligned behind Youngkin, how independents are breaking.
And based on the last Monmouth poll, they seem to be leaning towards Youngkin and this message, which we fully recognize taps into the same playbook that Donald Trump deployed that levels race-based and racist themes that resonates with white voters across the country is something that they`re responding positively to.
And as former Congressman Perriello mentioned, this is about turnout and making sure that Democrats do have a good margin in that early vote, but also see strong returns in the day-of vote, because we know, when more people show up at the polls, Democrats tend to fare better.
And that`s something that we should all be keeping an eye out for, the cadence and pace of votes that are happening on the day, as well as the margin that Democrats can have in that 1.2 million people who already cast their ballots early.
MELBER: Yes, what you just said sounds like, oh, it`s a good thing for Democrats. But it`s also just literally true. We see that in the national turnout. We see that in the sort of the shrinking aging white electorate that has been the sort of bread and butter of the GOP.
And then, in a place like Virginia, the presidential year and the off-year is a turnout battle, is it not, Tom, because high turnout can look more like a presidential year, where we just showed Clinton won the state, Biden by the largest ever, as mentioned, hence the Nipsey Hussle reference, which I know means something to you, Tom.
(LAUGHTER)
MELBER: And then Obama twice.
To Juanita`s observation as well, we had our reporters out there talking to voters, and you know the state, so you will educate us. But here`s some of what voters were saying about the way some of those attacks, racialized and others -- otherwise, are playing.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: I don`t like the CRT training. Those children are not going to get what they need.
UNIDENTIFIED MALE: Parents do have a big say in education. And this Critical Race Theory is something, to me, that is ridiculous.
UNIDENTIFIED MALE: It`s a dog whistle. It`s a racist dog whistle. We all know, everybody knows that Critical Race Theory is not taught in our schools. And it`s unfortunate that they`re using that dog whistle, instead of talking about the issues.
(END VIDEO CLIP)
MELBER: Tom.
PERRIELLO: Well, first, I thought your Obama tease at the beginning was going to be his part of the Jay-Z induction speech the other night, but...
(CROSSTALK)
MELBER: It may be. It may be, Tom, but people will have to wait until the end of the hour. That`s all I`m going to say.
PERRIELLO: I didn`t mean to ruin the tease.
So, look, I wonder whether we`re seeing a generational shift. For my entire life in politics, the assumption is Republican voters show up no matter what, Democratic voters need a reason to show up.
And I wonder if instead, actually, what we`re seeing is now that the MAGA base has had this sort of full dopamine rush of Trumpism, that the dog whistle just doesn`t get them out without the bullhorn, even though we know it`s the same politics, whereas our side already knows the fear, the fear of going back to the anxiety and the fears of Trump 2.0.
And I think the Critical Race Theory fearmongering is part of that. Voters are getting smarter about it. And I think parents are saying, wait a second, I want my kids to learn real history. I don`t want them to learn fairy tales. Fairy tales is when you`re 6 or 7 years old, but I want them to be able to get real history and learn critical thinking.
And I think that what we`re seeing is parents saying, wait a second, the same people that are freaked out about that are the ones that don`t want kids wearing masks and mean my kids are going to end up getting schooled at home again. No, thank you. I really want the people that are solving problems, not the people creating problems.
[18:10:00]
And I think I think that`s what people are seeing from this Democratic ticket. And I think the sooner Congress gets moved forward with the Building Back Better agenda, you`re going to see the same thing nationally.
So turnout is going to be huge. I do think, though, we have seen voters turnout now in `17 in Virginia, `18, `19 in Virginia and `20. And now that we have removed some of the Jim Crow voter repression laws, we may see, as was pointed out by Juanita, that the majority is actually allowed to vote. And that`s going to be a good thing for Democrats.
MELBER: Yes, Juanita, your views on that. There was the reference to dog whistle.
And there was a period of time where things were offered with plausible deniability. So they would be called a dog whistle. Then you have Donald Trump literally running on religious exclusion, on racism, on misogyny, on banning people because of their religion.
Well, if that`s your plan, I don`t care what religion it is. You`re self identifying as a religious bigot. And then you have anti-black terrorism and they marched the Confederate Flag into the Capitol while trying to overthrow the government.
So we`re a long way from dog whistles, Juanita. The question is, where does that play compared to the politics, because, again, politics is about what people are thinking about, with jobs COVID, kitchen -- so-called kitchen table issues in Virginia tomorrow as well?
TOLLIVER: That`s exactly right. Ari. It`s not a dog whistle. He means it when he says it.
And let`s be real. Every voter who responded to a poll and said education was their number one issue meant race is the number one issue, because that is the way that Youngkin is approaching this. That`s the way we know the entire GOP across the country has approached this over the past, what, 16 months, when they started this drumbeat around this false claims of Critical Race Theory.
And so I don`t consider it a dog whistle at all vs. a blatant statement to white voters that white voters have been responding to, especially Trump`s base of voters. And so while I think, as you characterized it at the start of your open, Ari, that Youngkin is dancing, I look at it more of Youngkin is winking at the Trump base, saying, I still got your back. I`m just talking to you in a Trump-lite way in my sweater vest, right?
Because he knows he has to remain some degree of palatable appeal to independent voters. And that`s who this message is for. And, sadly, that`s where it`s resonating. I think looking ahead to Election Day is that you`re going to see more independents potentially break for Youngkin based on these arguments.
And it`s because he`s doing it in a way that isn`t as repulsive as Trump. So even though Trump`s throwing this tele-rally, even though Youngkin is trying to distance himself, he`s still winking at Trump`s voters, saying, I got your back and I will bring all those Trump policies into the commonwealth if you elect me.
MELBER: And, Gene, shout out to sweater vests and all the dad vest fleece ensembles that we see.
ROBINSON: Right, fleece.
MELBER: If they are a fashion choice to keep the core warm and the arms free.
If, to Juanita`s point, which I think is fair, if they are a kind of political subterfuge, to seem like a dad at soccer practice, when you actually want to do radical things, then be honest, tell the voters who you are.
ROBINSON: Right.
And so, who is Glenn Youngkin? I mean, you wouldn`t know from his ads, because his ads -- I can`t think of a single Glenn Youngkin ad -- and I think I have seen about 8,000 of them -- that includes the word Republican, for example.
MELBER: Right.
ROBINSON: He manages to avoid that word in an appeal to independents. He doesn`t want to own up to that.
And the whole thing about he wants -- he doesn`t want Trump to be against him, but he doesn`t want Trump to come and be overtly for him because that clearly would hurt him with Democrats.
So it depends on how people see Glenn Youngkin and whether people see through what Glenn Youngkin is doing. And like Juanita, I`m not clear on that. I don`t know how independents are going to come down in the final analysis.
MELBER: Yes.
ROBINSON: I do know that, if there is heavy enough Democratic turnout, then Terry McAuliffe ought to be OK.
But that requires pretty heavy turnout.
MELBER: Yes.
Well, and the whole political will be watching this tomorrow with some of the points I think you guys have raised, especially as people near the Beltway, which sometimes has a pejorative term, we`re familiar, but in this case, you`re covering a race near the Beltway. So we have learned a lot.
Eugene, Juanita, and former Congressman Tom Perriello, thanks to each of you.
Coming up, as mentioned, Neal Katyal is here on more than one -- on the story, I should say, of what Trump is hiding on January 6 and some damning new evidence.
Then, this big legal victory for vaccine mandates. It`s our legal update for you tonight. It`s being cheered in the White House.
Also tonight, Barack Obama speaking out on civil rights and the road to change with something we want to share with you, surprises for icons.
That`s later in the show.
(COMMERCIAL BREAK)
[18:18:31]
MELBER: There is new evidence of just how committed Donald Trump`s lawyers were to literally trying to overthrow the election.
You may recall the videos from inside Congress on January 6 showing that rush to get the vice president to safety, Secret Service whisking him away from Trump supporters who criminally breached the Capitol, and were advocating Pence`s assassination.
Well, amidst that chaos, a Trump lawyer contacted a Pence aide with an unhinged and inaccurate little rant, blaming that Trump-fueled insurrection Pence`s team. The argument was that, because Pence refused to make a show of claiming to steal the election during the Senate`s meeting, that somehow he caused this?
That move, by the way, had he done it, would not legally matter. It wouldn`t have changed a thing. But here`s what the lawyer e-mailed team Pence, according to "The Post."
Quote: "The siege is just because you and your boss, Pence, did not do what was necessary to allow this to be aired in a public way."
Now, that lawyer is a guy named John Eastman, part of the ongoing shadow Trump government that tried to end democracy last time and continues to go out and organize efforts for next time. Now, Eastman is not as well-known as some Trump figures, but he was on the inside.
Days before January 6, he was actually talking to Steve Bannon, trying to whip up some sort of final public pressure to push Pence into action.
(BEGIN VIDEO CLIP)
STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: Are we to assume that this is going to be a climactic battle that`s going to take place this week about the very question of the constitutionality of the Electoral Count Act of 1877?
[18:20:05]
JOHN EASTMAN, ATTORNEY: Well, I think that a lot of that depends on the courage and the spine of the individuals involved.
BANNON: Would you be -- that`d be a nice way to a guy named Mike -- Vice President Mike Pence?
EASTMAN: Yes.
(END VIDEO CLIP)
MELBER: The January 6 committee now is expected to subpoena that lawyer, Mr. Eastman, by the end of this week.
We`re joined by former acting U.S. Solicitor General Neal Katyal, an MSNBC legal analyst.
The e-mail, the all caps, the fact that it comes on the day of the 6th, while the vice president was at times in jeopardy, it`s baroque, and weird and unhinged. As an American, I will say thank goodness things weren`t worse, so it looks now almost just sort of wacky. Of course, if Pence had gotten further hurt, which is what the Trump fans want, that`s what they said they wanted, it would look rather different.
What, if anything, do you read into all this?
NEAL KATYAL, MSNBC LEGAL ANALYST: Yes, I think, Ari, it`s more than wacky. It`s potentially treasonous or close to it.
And if you have ever been annoyed by an ill timed e-mail that you get at work like mom is sending you or something, just remember, Ari, you don`t ever have to swat John Eastman out of your inbox in the midst of an armed riot.
I mean, let`s remember how Eastman came to Trump`s attention. Eastman wrote an article saying that Kamala Harris was ineligible to serve as vice president because her parents were immigrants. And between that and his now -- Eastman`s Pence memo, I`m pretty sure that this guy just stays up at night making up random things that a vice president can and can`t do.
I mean, what`s next? He`s going to write a memo saying the vice president can`t like enter the West Wing without all pass or something like that? I mean, this guy is preposterous when it comes to constitutional law.
And the idea that anyone, any client, but let alone the president of the United States, would be taking advice from this guy calls, I think, that former president`s judgment into serious question.
MELBER: Yes, I think that`s fair.
Then you have the clash that we relied on your expertise for that you have been guiding us and viewers through, which is this executive privilege claim. Here`s what we`re now learning that the Trump folks actually want to try to hide, for whatever their reasons are, a record of the president`s movements, phone calls, trips, briefings, meetings, and activities.
That`s the range of it. What does that tell you?
KATYAL: I think it tells me a lot, particularly in conjunction with "The Washington Post" reporting today about how Trump stood by for 187 minutes and did nothing.
I mean, Donald Trump`s a guy who tweets within like a minute of any indignity to a white person happening anywhere in the United States, and he sat by 487 minutes. What this tells me is that this claim of executive privilege is looking bogus. It`s looking like a delay tactic.
And it`s not going to work. And I think it`s not going to work for three fundamental reasons. One, a former president can`t easily assert executive privilege under controlling Supreme Court case law. It`s up to the current precedent.
The second is, even if you can assert executive privilege, and even if it`s in the heartland of what executive privilege is about, like foreign affairs communications, the Supreme Court has said executive privilege can be breached if the need for the evidence is strong. And, here, the evidence is as strong as it gets.
I mean, this is the most important investigation in our lifetimes, potentially. And then the third thing is, Trump just lacks credibility. He`s tried these bogus defenses of immunity and privilege time and again. He`s lost them time and again. And I think the courts are going to run out of patience with this.
MELBER: Yes.
The last thing I want to do is just read a little bit of what is Eastman talking about for the future, because this is the template. He says -- quote -- "If we take a bunch of these officials out in the primaries in 2022 and the precondition of getting elected is that we`re going to fight this stuff, then maybe we have an opportunity."
There are secrets and then there are plots out in the open. What do you, as someone steeped in the constitutional traditions of this country, think of this person claiming -- he`s a lawyer -- out in the open saying they want to find candidates who will commit to overthrow democracy?
KATYAL: I mean, this guy is part of, Ari, Reconstruction 2.0 to me.
And just like there was a backlash in the Civil War -- after the Civil War and after the Northern victory, there`s a backlash now about progress, a backlash coming from President Obama being elected and all sorts of other things. And we can`t afford another 100 dark years, the way we had after the Civil War.
And I`m really, really worried. The idea that John Eastman or these other folks want to deprive people of their right to vote, to throw out election results that they don`t like, that`s a terrifying concept.
And I think every American, doesn`t matter your party, has to be aghast at this. The 2006 Voting Rights Act was passed unanimously in the Senate 98-0, 417-3 in the House of Representatives. Now you get not even one Republican voting for such a thing.
[18:25:01]
I don`t know what that party has become, but it`s scary.
MELBER: Yes, all important points.
Neal Katyal, thank you, as always.
Up ahead, we will hear new from Barack Obama a civil rights message worth hearing, we believe. That`s later tonight.
And, when we`re back in just 60 seconds: Biden told Republicans, have added. Sue him over the vax mandates. And now signs that he`s winning.
We`re back in 60.
(COMMERCIAL BREAK)
MELBER: Turning to a big legal development, the White House cheering what it calls good news for the Supreme Court, as Biden pushes this partial vaccine mandate.
Now, the Biden administration mandate has not hit the high court yet. But a strict state mandate survived a crucial test, the Supreme Court leaving in place a vaccine mandate for health care workers, five justices voting that way, including two Trump appointees.
The court already left in place mandates at educational institutions. So, taken together, the headline here is, it is hard to overturn COVID vaccine requirements. And courts have upheld them for a century of all kinds of vaccines.
Now, there can be limits when it comes, for example, to religious exceptions and how courts want to require that. Meanwhile, the Biden administration set to publish details and a mandate rule in writing this week. That plan allows a major exception, allowing basically everyone who is affected by it to choose testing, instead of vaccination, if they want.
Still, Republicans in 11 states suing Biden over it. And the president has told Republicans, have at it, because he says he will win these challenges. These brand-new court signals that I`m telling you about, well, they`re definitely on his side.
The Supreme Court has yet to hear a full case on this, but everything that we`re learning, including that new ruling from Maine, suggests they`re OK with it.
Now, the ruling that it left in place ruled for mandates and also noted the government can take actions. This is from the judge who initially upheld the mandate, said look, the government can take actions to reduce -- quote -- "serious risk of illness and death associated with the spread of COVID."
Let`s get into it.
I`m joined now by Lawrence Gostin, professor of global health at Georgetown and author of the book "Global Health Security: A Blueprint for the Future."
Thanks for being here.
LAWRENCE GOSTIN, GEORGETOWN UNIVERSITY: Thanks for having me back, Ari.
MELBER: What does it tell you that these justices appointed by different presidents, different parties came together to leave this in place?
While I`m always careful to note they haven`t had the full -- a full hearing on it yet, but they`re certainly not stopping any of these mandates.
GOSTIN: No, I don`t quite trust the Supreme Court. It`s really conservative and it often prioritizes religion over public health.
But, as you said, Ari, this has been upheld by courts throughout the land for a century. The Supreme Court has upheld vaccine mandates twice. George Washington required it of our troops. So this goes way back in American history. And it would have to be a complete turnaround and a violation of the rule of law for the Supreme Court to do otherwise.
But I do worry about religion, because I think that, if you have a religious exemption, it could just be a great big barn door, and it would just let the floodgates in. And I don`t want to see that happen.
MELBER: You have worked with WHO and really know these issues around the world. What`s your global perspective here on how the U.S. uses these powers compared to other places?
Because we have heard the arguments of, oh, maybe this is extreme or government overreach. And yet most of the mandates have exceptions. The Biden one has a big one, as mentioned. And the United States has tried to strike a balance with liberty and vaccination for some time.
GOSTIN: Yes, I mean, from an ethical point of view, let`s just start with that.
Everyone has the right to the sanctity of their own body, of course, but nobody has the right to expose another person to a dangerous infectious disease. You don`t have the right to go into a crowded workspace unmasked and unvaccinated, because you cause harm to others.
[18:30:10]
A lot of other countries around the world have mandates of one form or another. Ours tends to focus on schools and on work. Others, you can`t go to a shop, you can`t go to a museum, you can`t go on an airplane. You can`t get a croissant in France unless you`re vaccinated.
MELBER: Yes.
GOSTIN: And so, around the world, everybody...
(CROSSTALK)
MELBER: Is it croissant, or is it croissant?
(LAUGHTER)
GOSTIN: It`s a croissant.
MELBER: OK.
Well, you`re very international. So, go ahead.
GOSTIN: I am, yes.
Well, I mean, from the U.K., so it`s not quite France.
MELBER: Yes, I think you make the point, again, these are ethical and legal dimensions.
But you have the right to douse yourself in gasoline, but the police and the courts aren`t going to be OK with you doing that and then running around a place where people are smoking and hugging everyone. In other words, your own body, it could be literally on your body, but as it starts to touch, get close to other people`s bodies, there are public safety elements.
I do want to push back on the religious point, just so we understand it here, because Justice Gorsuch, I want to say -- yes, Justice Gorsuch wrote about this in the dissent to this. So this is the current losing side, although it may ultimately go back to the court. And he says: "Health care workers who`ve served on the front lines of a pandemic for the last 18 months are now being fired for adhering to their religious beliefs."
What do you say to him and those workers if he makes the argument that, if they have a genuine good-faith religious belief, they ought to be able to adhere to it and continue to provide health care?
GOSTIN: Well, health care workers are there to protect their patients, to save their patients lives. And, also, we want to save their lives.
And so if you have a health care worker that`s unvaccinated, he or she can transmit the infection to their fellow health care worker. They can transmit it to a patient.
And I wrote an article for "JAMA," "The Journal of the American Medical Association," talking about a wider freedom. FDR talked about that. The whole idea is that, yes, you have a freedom over your own body, but you don`t have a freedom to -- that harms other people. And we all want to be able to go to work to school, to a hospital and feel safe.
And so people have to roll up their sleeves, get a jab, be tested, wear a mask, and then we will all be safe and we will all be back to normal and we will all have a greater freedom.
MELBER: Yes.
Well, Professor Gostin, you`re a very learned person, and you have been working on these issues for many decades. So we have come to you before. We will do it again. Thank you for joining us today.
GOSTIN: Thanks, Ari. Take care.
MELBER: Appreciate it.
Coming up, we have an update on an important legal story we have been following. This is a breakthrough of sorts. It involves death row. If you have been watching THE BEAT, we have done more than one piece on it. That`s tonight. I urge you to stay with me, because I want to get into it with you.
Also, in the law -- in the land of the law, Supreme Court weighing in on this Texas effort to deputize private citizens to go after women and others over abortions. We will get into that.
And then later, Barack Obama with a new civil rights message and a little bit of a history lesson. I promise you, it`s worth it.
Stay to the end for that.
(COMMERCIAL BREAK)
[18:36:59]
MELBER: Big developments on a legal story we have been reporting for you .
An Oklahoma parole board today recommends clemency for Julius Jones, a death row inmate who was convicted of murdering 45-year-old father and businessman Paul Howell about 20 years ago. This was a prerequisite to potential clemency. Now the case goes to the governor for a final decision.
Now, Jones` lawyers have argued he did not get a fair trial. We have reported on this because there`s a lot to. A jury in the trial revealed another jury allegedly used a racist slur to describe Jones. And there were other problems with the case, Jones maintaining his innocence since he`s been in prison.
(BEGIN VIDEO CLIP)
JULIUS JONES, INMATE: I`m here before you today to tell you what I never got to tell the jury in my trial. Yes, I have made many mistakes in my view, but I did not kill Mr. Paul Howell.
(END VIDEO CLIP)
MELBER: All this comes on the heels of Oklahoma`s first execution in six years, where there were allegations and evidence of another botching, even though the pause was designed to avoid this.
In that case, the inmate, John Grant, convulsed over 20 times and vomited during what looked like another botched execution. Oklahoma has had problems both with the process of the executions, as well as securing whether or not there`s a fair trial. We brought you Mr. Jones` case because of the question surrounding it. And we will stay on the story and see what the governor decides.
Well, that`s one legal update. We also have these legal challenges facing the Supreme Court, where they have been fast-tracked, the justices hearing arguments today in that controversial and restrictive Texas abortion law, which tries to ban the procedure after six weeks. It was also designed to circumvent the very thing that`s happening, court review, because it would deputize sort of private citizens or vigilantes to go after abortion providers.
A lawyer arguing against the law today calling it all a scheme.
(BEGIN AUDIO CLIP)
MARC HEARRON, ATTORNEY FOR ABORTION PROVIDERS: To allow Texas a scheme to stand would provide a road map for other states to abrogate any decision of this court with which they disagree.
At issue here is nothing less than the supremacy of federal law.
(END AUDIO CLIP)
MELBER: Some of the conservative justices also raised questions.
Kavanaugh wondering if the same so-called scheme might be used to go after other bedrock constitutional rights.
(BEGIN AUDIO CLIP)
BRETT KAVANAUGH, U.S. SUPREME COURT ASSOCIATE JUSTICE: Can I ask you about the implications of your position for other constitutional rights?
The Firearms Policy Coalition says -- quote -- "This will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets" -- end quote.
And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights if this position is accepted here.
(END AUDIO CLIP)
MELBER: A sophisticated question there about whether this kind of plot endangers many different constitutional rights.
We`re joined now by former Texas state Senator Wendy Davis. She famously led an 11-hour filibuster trying to stop an earlier incarnation of anti- choice laws down in Texas.
Thanks for being here.
FMR. STATE SEN. WENDY DAVIS (D-TX): Thank you for having me, Ari.
MELBER: What did you think of today`s arguments?
DAVIS: We`re all feeling a little hopeful here in Texas today.
[18:40:00]
Today is the second-month anniversary of this law being in effect. And listening to the court`s argument today, it became pretty clear that there are some valid concerns not only by the liberal justices, but a couple of the conservative ones as well, that this scheme, as the attorney arguing the case today, is one that did intend to nullify a constitutional right, and their grave concern, that this could apply to other instances as well.
MELBER: Yes, as you say -- and we played a little bit of that -- there`s what Texas is trying to do. I think people understand that and the imposition what is still supposed to be a right in America.
And then there is the how, which seems to potentially, from the line of question, maybe be backfiring on them. A little bit more here again. These oral arguments can be a little hard to follow, but here`s Kagan on a related point. Take a listen.
(BEGIN AUDIO CLIP)
ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE: The fact that after, oh, these many years, some geniuses came up with a way to evade the command that the broader -- the even broader principle that states are not to nullify federal constitutional rights, and to say, oh, we have never seen this before, so we can`t do anything about it, I guess I just don`t understand the argument.
(END AUDIO CLIP)
MELBER: I play that because it overlaps with what Justice Kavanaugh was getting at.
He was saying, well, if they go after this right or choice one day, they could use the same scheme to go after gun rights. So some people might hear that and they care more or less about a certain right.
She`s almost being the most blunt, which is rare for justices in oral argument, as far as I know, where she`s saying, are you kidding me? You think you`re going to trick us? You guys are geniuses, like, oh, we can`t review this?
Do you think that is an element here where there might be a coalition to say, Texas, you`re not as smart as you think you are, or at least Texas Republicans? You know what I mean.
DAVIS: I do.
And Justice Kagan really pressed the solicitor general for Texas on this today, asking him, are you saying that, if this same situation occurred with gun rights or First Amendment rights, that the state would have sole authority over deciding this question, and that the federal courts would have no authority?
And he had to answer her in the affirmative, that, indeed, that is what they were arguing, that states could do this and that the federal court system had no right to review any case that sought to basically take away a federal constitutional right.
MELBER: And so, if that is where it goes, and they`re dubious, skeptical, the court, of that, then what do you see as the potential landscape in Texas?
"The Times" and others have reported recently that, in the short time this law has been on the books, it has drastically reduced potential abortions that which otherwise individuals might choose to exercise their rights on. In other words, whether other people agree or not, it is supposed to be the law of the land that you have that right to choice.
DAVIS: That`s exactly right.
And as Justice Kagan pointed out, this law has clearly had a chilling effect, not a hypothetical chilling effect, but a very clear one, because doctors and other front-line medical workers have been so afraid to provide abortion care, for fear that they could be sued for unlimited amounts of money if they do.
And though the state argued that these cases should play their way out in state court, that doctors and other medical workers should violate the law and then see where that takes them, clearly, there seems to be a majority of justices here who understand that that is not practical, that it really does nullify constitutional authority, and that it`s for the federal court to review this question and to make a determination on the validity of this law.
MELBER: Understood.
And, Wendy Davis, good to see you again. Thank you, as always, for being here.
DAVIS: Thank you, Ari.
MELBER: Absolutely.
Now, you may remember Four Seasons Total Landscaping. Wait until you see what they did for Halloween.
But, first, what I have been promising is now time to deliver. We have Barack Obama on civil rights and learning from history with a surprise.
That`s next.
(COMMERCIAL BREAK)
[18:48:49]
MELBER: Barack Obama has drawn on many influences throughout his life, including evoking a confidence or swagger to dismiss attacks he faced, rather than overreacting to them, like a beloved moment on the campaign trail when he said he brushed off political attacks like brushing dirt off his shoulder.
(BEGIN VIDEO CLIP)
BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: When you`re running for the presidency, then you have got to expect it. And you have just got to kind of let it...
(CHEERING AND APPLAUSE)
(END VIDEO CLIP)
MELBER: Many people love that energy. Some knew it was a reference to Jay- Z, a rapper Obama liked long before he was president.
(BEGIN VIDEO CLIP)
OBAMA: Hip-hop is not just a mirror of what is. It should also be a reflection of what can be.
QUESTION: Do you like hip-hop?
OBAMA: Of course.
QUESTION: Who do you like?
OBAMA: I got to admit, lately, I have been listening to a lot of Jay-Z. This new "American Gangster" album is...
QUESTION: What do you like about it?
MELBER: It tells a story.
(END VIDEO CLIP)
MELBER: And we`re all telling stories.
Now, then, as president, Obama didn`t stop. He invoked Jay-Z`s really inspirational civil rights vision in a speech at the historic Edmund Pettus Bridge.
(BEGIN VIDEO CLIP)
OBAMA: We honor those who walked, so we could run. We must run, so our children soar.
(END VIDEO CLIP)
[18:50:06]
MELBER: Jay-Z actually first rapped those lines in a song imagining an American black president before there ever was one, rapping, Rosa Parks sat, so Martin Luther could walk. Martin Luther walked, so Barack Obama could run.
That was before he was elected. It`s a theme that was also explored by Jay- Z while campaigning at Obama`s request in 2008.
(BEGIN VIDEO CLIP)
JAY-Z, MUSICIAN: You guys all go out and vote. Get your parents, get your friends, get your auntie. You going to be able to vote one day, right? This young lady right here is a perfect example of why we have to vote. We have to make history happen. So that young lady right there, maybe she could be president one day. You understand?
(END VIDEO CLIP)
MELBER: So that young lady can be president. That`s what it felt like on the campaign trail.
And it`s in the news now, because Jay-Z entered the Rock and Roll Hall of Fame last night. And Barack Obama cited both of those moments you just saw during his induction speech for one of the former president`s favorite rappers.
(BEGIN VIDEO CLIP)
OBAMA: I have turned to Jay-Z`s words at different points in my life, whether I was brushing dirt off my shoulder on the campaign trail, sampling his lyrics on the Edmund Pettus Bridge on the 50th anniversary of the Selma March to Montgomery.
So let me be one of the first to welcome HOV, the from Marcy Houses, to HOF as an official Rock and Roll Hall of Famer.
(CHEERING AND APPLAUSE)
(END VIDEO CLIP)
MELBER: Obama making it official, while Jay-Z spoke about his path from the projects to becoming a billionaire to entering the Hall of Fame and recounting how Barack Obama, then running for president, asked for help.
It turns out, according to Jay, Obama will tell you sometimes even M.J. needs an assist.
(BEGIN VIDEO CLIP)
JAY-Z: He called me. He said: "You know, it`s the fourth quarter. We`re down two. And I need you to assist me. Give me the ball. I`m Michael Jordan. And I will get this done."
(END VIDEO CLIP)
MELBER: Now, we didn`t know Obama refers to himself as M.J. when he calls Jay-Z, but they do ball hard.
And Jay understands that energy. Did he not say, we ain`t even supposed to be here? Ball so hard. Since we here, it`s only right that we be fair. Psycho. I`m liable to go Michael. Take your pick. Jordan, game six.
Now, Jay enters the Rock and Roll Hall of Fame with esteemed company. This year`s inductees included Tina Turner, the Go-Go`s, Foo Fighters, and Carole King, who you may recall has joined THE BEAT several times on everything from music and culture to her environmental advocacy on climate change, something she`s out front on right now.
(BEGIN VIDEO CLIP)
CAROLE KING, MUSICIAN: We have to fight for the forest so that our -- I mean, it`s already our children, our grandchildren, history, so that people -- it will be there for people to stand in and appreciate and take in and be part of.
(END VIDEO CLIP)
MELBER: It`s called the Hall of Fame for a reason. And it`s notable that so many of this year`s musical and cultural leaders, it turns out, when you look, have also spent so many years leading on policy, on values, on equal rights and civil rights.
So we wanted to share that update with you, including the words from the former president.
And when we come back: Halloween meets Four Seasons Total Landscaping.
Stay with us.
(COMMERCIAL BREAK)
[18:57:44]
MELBER: Rudy Giuliani did a lot of different things over the last several years. He`s under criminal investigation. He had a lot of problems as Trump`s legal leader, but of all the mishaps, for some reason, that infamous, messy clown car of a press conference at Four Seasons Total Landscaping seems to take the cake for many.
And it was for a kind of mistake that captured the legal dead end he was in. It seemed that they wanted to be at the Four Seasons Hotel, but ended up there.
Well, for Halloween, the actual Four Seasons Total Landscaping is on the joke. This is real, what I`m showing you, the entire place -- quote, unquote -- "dressed up," as it were, right here as if it were a Four Seasons Hotel.
The original Giuliani event was wild. And, by the way, you can learn a whole lot more about it and the family behind that business in "Four Seasons Total Documentary" airing this Sunday at 10:00 p.m. Eastern right here on MSNBC.
Consider that a programming announcement and a little bit of Halloween update.
Now, there is one more thing I want to share with you. You can always catch us here on THE BEAT at 6:00 p.m. Eastern, and we love that. But, sometimes, there`s more than we can fit into this hour.
And we have a lot of great guests, ideas and other things that come up, and we continue this conversation with you and our favorites online. Check it out.
(BEGIN VIDEO CLIP)
MELBER: Oh, my God, what time is it?
SETH MEYERS, HOST, "LATE NIGHT WITH SETH MEYERS": It`s time to do the interview, Ari. Put your phone is a moment. Come on, buddy.
TOLLIVER: It`s a moment. It`s a mood. It`s a vibe.
KATYAL: It`s part of the Trump M.O.
UNIDENTIFIED FEMALE: He`s a desperate man.
MELBER: Michael and Ari. It`s like "Roger & Me."
JEFF GARLIN, ACTOR: Dig this. You ready?
MELBER: What do you got?
GARLIN: I`m the Emmys? I`m waiting to hear if "Curb" wins or not.
MAYA WILEY, MSNBC LEGAL ANALYST: What we need most is not ideology. It`s evidence.
UNIDENTIFIED FEMALE: This is Fish, and that`s Chips.
DR. RUTH WESTHEIMER, SEX THERAPIST: When are you going to call me?
MELBER: This week.
WESTHEIMER: OK.
MELBER: OK.
(LAUGHTER)
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
MELBER: Shout-out to Dr. Ruth and everybody else. We call it THE BEAT after-hours.
So, you can always find us on social media at @THEBEATWITHARI or my account, @AriMelber. You can check in. And it`s a way that we do stuff that`s not as formal as this whole news thing.
That`s it for me. I wanted you to know that.
We`re gearing up for that election and a lot more. So, keep it right here. "THE REIDOUT WITH JOY REID" starts now.