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Transcript: The Beat with Ari Melber, 5/19/21

Guests: David Kelley, Barbara Res, Emily Bazelon, John Flannery

Summary

The Trump Organization is now under a criminal investigation in New York. The House of Representatives votes to form a bipartisan commission to investigate the Capitol riot.

Transcript

NICOLLE WALLACE, MSNBC HOST: Ari Melber picks up our coverage right now.

Hi, Ari.

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

Welcome to THE BEAT. I am Ari Melber.

And, as mentioned, we`re tracking two major developing stories right now.

At any moment, the House is slated to hold this monumental vote on the January 6 commission to investigate fully the insurrection at the Capitol, which left five dead. Many are tracking how many Republicans ultimately voted against what many have called a search for the basic and full truth of what happened on that terrible day.

So, we will be watching the vote along with you and our experts. We will see exactly what the tally is, how this fits into the calls for a full accountability, beyond just the federal prosecutions that have occurred stemming out of the MAGA insurrection. We will have that all for you as it happens, it unfolds, breaking news in our hour.

Also, the other big story, the legal heat on citizen Donald Trump is hotter than ever as a measurable fact in New York, the Trump Organization under a criminal investigation their, New York Attorney General Letitia James confirming this and announcing, in something that has shocked and angered Trump world, that she is formally joining the Manhattan DA probe in a way that confirms it is publicly a criminal probe of Trump`s business dealings, finances, everything going on at Trump Org.

The A.G.`s office has alerted the Trump Org to this fact, that it is now an active criminal investigation.

Now, up until this point, outsiders viewed what was going on in the attorney general`s office as primarily or likely a completely civil matter. This is a criminal probe. That means, depending on where it heads, that people could wind up in jail.

Now, we don`t know who this probe is specifically targeting right now. Prosecutors certainly aren`t tipping their hands that way. We don`t know if it could still end with a finding that there`s not enough evidence to do any criminal charges.

The fact that a criminal probe exists doesn`t mean it ends with charges, of course. And we don`t know, if there are charges, whether it would be one person or more than one person or who that person would be.

But jail being on the table changes everything for anyone anywhere near this thing, for anyone worried that they or their family members, for example, have any potential criminal exposure.

This is, simply put, a very big deal, the investigation reaching a point where they have to inform those involved. And anyone involved, of course, has their rights.

Now, that could include, of course, the person at the head of this Trump Organization, Donald Trump.Could include other people who were involved in the Trump Organization`s recent activities or anything within the New York statute of limitations.

Now, this is a big deal. Let me show you something else. We`re going to put it up on the screen here, Donald Trump today basically saying what he thinks about all this: It`s a corrupt, desperate search of a crime that he implies never occurred.

Now, you have seen -- if you ever watch the news, or, for example, THE BEAT, you have seen us cover legal proceedings. If Donald Trump is a subject of this, he has every right to make his defense at any time, including impugning or attacking the investigators.

But, legally, that statement doesn`t do anything. And the other big difference is one we all know about. It`s one that basically courses through so many of the stories today, including what Congress is deliberating on right now, whether to fully investigate what happened on January 6. What was January 6 about? It was about Donald Trump losing the election. It was about him being the electoral loser.

That means, as a practical matter, he is now a regular citizen. He has no presidential powers to arm him legally or in the courts as he deals with a very serious investigation. He doesn`t have a handpicked attorney general to come in and interpret everything as much as that person, in the instance of Bill Barr in the Mueller probe, or others did to try to help Donald Trump.

And he no longer has a pardon power, which, in the federal probes that Donald Trump faced ,proved to be quite pivotal, as he pardoned many people who had his back to the end.

That`s not all that`s different. If you follow these stories, I understand, sometimes, they can be exhausting, but I want to remind you of something else that is super important, not important because of what you think about Donald Trump, although it was certainly bad news for him, but important to remind everyone that the rule of law still does function in this country, however imperfectly.

There were years of battles over whether Donald Trump could keep his tax returns hidden not even from the public, but from criminal investigators. Well, he lost that long battle. And that connects to this case tonight, because the New York attorney general is working with the DA, who obtained years of tax returns and millions of documents pertaining to Donald Trump, and many of the issues under review at the Trump Organization.

The Manhattan DA has also been moving closer, we know, to Trump`s inner circle, including the moneyman, Allen Weisselberg. He knows a lot about everything Donald Trump did and wanted done through this Trump Organization.

Now, prosecutors are pressing hard by all the measurements that we can tell in public to get him to cooperate. They even subpoenaed a private school where half-a-million dollars of his grandchildren`s tuition was paid for, signed by Weisselberg, which might seem pretty ordinary, or Donald Trump himself, which is not.

Michael Cohen definitely turned a lot of people`s interest to Weisselberg and the way the money worked when he gave that infamous -- or famous, depending on who you ask -- testimony to Congress in 2019 -- this was before he went to jail -- saying Trump deliberately provided misleading or false valuations in official documents.

Remember, lying in day-to-day life for many people, whatever you think of it, it`s not technically a crime. Lying to the government, to tax authorities, to anyone in the New York government about what you have and once you paid, that can be criminal.

So, keep that in mind before I bring in our experts, because here`s what Cohen told me about Trump`s moneyman, Weisselberg.

(BEGIN VIDEO CLIP)

MICHAEL COHEN, FORMER ATTORNEY/FIXER FOR DONALD TRUMP: only few people that -- in the Trump Organization that know anything about the taxes is Mr. Trump, who knows everything about everything, Allen Weisselberg, the chief financial officer, Don, Ivanka, and Eric.

Those are -- those are your five.

(END VIDEO CLIP)

MELBER: That is a Trump lawyer who is in the know for years talking about a Trump moneyman who`s been in the know all the way up until this year, according to the reports.

You take it all in tonight ,and while Donald Trump remains one of the most controversial people in public life in the history of the United States, maybe the world, I want to tell you this news is not about how you feel about Donald Trump or how he performed as president.

His performance, however abysmal many people feel it was -- we know the bulk of voters turned away from him when given a referendum -- is not under review in the courts. Indeed, I will tell you that how good or bad a president was should never matter in the courts.

What matters tonight, what`s so significant is that the people who take the oath to enforce these laws without fear or favor or partisan advantage, they are moving towards a more serious review of this as a criminal matter.

That should only be because, if they`re doing their jobs right, they have evidence, not about Donald Trump the person or the politician, but about Donald Trump`s conduct and the conduct of the organization he ran, and they have evidence that makes them look at this as a criminal probe.

And if they find something, well, they are duty bound to charge it. And if they don`t find anything, I want to be clear with you tonight, they`re duty bound to close out the probe. Everyone deserves the due process of this system.

It is unusual in the extreme to have someone leave the White House, and so soon find themselves in a newly announced criminal probe. It`s a big deal. Where it heads from here should be as nonpartisan and fair as possible led by the evidence.

Now, given this big news story, we have lined up some experts who are very good with legal evidence. And I`m very happy to turn to them now on a big news night, "New York Times" legal writer Emily Bazelon, former federal prosecutor John Flannery, and Jason Johnson, professor of politics and journalism at Morgan State University, who will bring up the inevitable political aspects of this. We will turn to Jason on that.

I want to start on the law and ask Emily, what does it mean, in English, when, at this juncture, the New York attorney general makes an announcement and a confirmation like this?

EMILY BAZELON, "THE NEW YORK TIMES": Well, we know that the New York attorney general`s office is going to bring additional resources and firepower to this place -- this case.

We also know that she has been in charge of a civil inquiry, that the district attorney`s office is running a criminal inquiry. And now we`re going to see how the threads of those two lines kind of braid together.

They seem to be interested in the same kinds of questions and material about fraud, about taxes, about these kinds of payments you were describing. And now these offices are going to come together.

And the fact that they are joining forces, I would say, is not good news for Donald Trump.

MELBER: Not good news for Donald Trump.

And, John Flannery, who has been a counsel to congressional investigations and dealt with very complex prosecutions, John, I think you would agree with me that the courtrooms of New York are not the place to settle any political disagreements with Donald Trump.

This is a huge story for any ex-president. If a different ex-president in whatever party were in this situation, it would also be our lead story. It would be a huge deal, notwithstanding some of the fatigue people have about this ex-president.

So walk us through what is legally and potentially criminally important here, separate from people`s views of Donald Trump.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR: Well, I think separate from his views is his conduct, which we wouldn`t expect to have an honest description from him.

And I think that we have an ability to understand where this investigation is go -- going. Usually, you would have an A.G. and a DA worried about turf battles. Instead, these two -- these two heavyweights have come together.

And I think the reason they came together and when they came together was in February of this year. In February, the DA got the tax records. And he soon after that said, I don`t like Steve Bannon`s pardon. And he was concerned about that. The A.G. had also looked at that because of her expertise in charity work.

Next thing we know, is assistant attorney generals are embedded in the DA`s office, while what is the DA doing? The DA is squeezing Weisselberg to give evidence. Now, they`re squeezing him for whatever they claim he did wrong as the chief financial officer for 20 years. And 20 years before that, he was handling all the books and records.

So, they target him, but they also go after Barry, his son. And I think the tax subpoenas and so forth were to say, did you declare these things? Did you declare that wonderful luxury apartment? Did you declare this income you got for tuition for your children? What about that job, that no-show job you have done at Central Park?

So, I think they`re squeezing Weisselberg by squeezing his son. Now, who else are they squeezing? Steve Bannon. So, what is going to come out of this? I`m not sure they have decided how they`re going to carve this up.

But when you go from a civil case of significance to a criminal case, you have decided that the Trump Organization is the subject of investigation, the organization, Trump and the children, identified by the A.G. in the past. So I think this is a big deal.

Now, they have done more in New York, between the A.G. and the DA, than anybody else in America. You want to have guts for glory, they have it. And I think that they`re looking to close. For one thing, they have to be concerned about the statute of limitations.

Now, going back to Weisselberg, we had no less than Mark Pomerantz, who knows his way around a tough interrogation, who`s been working over Weisselberg. And Vance, who`s no sleeper himself when it comes to asking questions, has been attending and watching this, rather than participating himself, because he wants this to be done efficiently. And he wants this done while it`s on his watch.

And he wants it done before the election. And he`s concerned about the statute of limitations. So, what do we have here? We have a day of horror for the Trump Organization, all of them, from Trump right down through the family finances and everything else.

And you know what? You can go and do trash talk all you want on TV, and Trump has some experience at that. But it doesn`t -- it doesn`t mean anything. Whatever your title was before this investigation began, you`re in a tough place.

And I think we will see a day of reckoning. I can`t say when, because we don`t know enough. They have been very careful to contain what they`re doing.

MELBER: John Flannery laying out about five different distinct points. He does it seemingly without notes. It`s quite striking.

Young lawyers could learn from you, sir. And you mentioned one of the five points I want to get to before...

(CROSSTALK)

FLANNERY: If you can`t do this, you shouldn`t be in a court.

It`s the thing about a fool for a client. You can have a fool an attorney, you know?

(LAUGHTER)

MELBER: Fair.

Well, but of the five, I want to go to one on the law, and then Jason`s going to come in on the way Trump is playing this, because you mentioned who we`re dealing with here, and this is important. Bob Mueller got a lot of attention over time, and he was well-known in public life.

But, right now, the person who has as much, if not more power than Mueller, with regard to Donald Trump`s future, is someone who Donald Trump can`t touch, can`t affect. He may be camped out in Florida or elsewhere, but New York Attorney General Letitia James has become a big player here.

She ran saying she would seek truth wherever she found it. She`s been in office two years now, and tenaciously has been saying she will hold power accountable.

(BEGIN VIDEO CLIP)

LETITIA JAMES, NEW YORK ATTORNEY GENERAL: In this state, we have a set of laws that every individual and entity must be held accountable to, regardless of who you are, regardless of your power.

(END VIDEO CLIP)

MELBER: Now, those are words. Does the record show it?

Well, it`s included, regardless of who you are, a probe into the top Democrat in all of New York, Governor Andrew Cuomo. Now Trump is playing his defense today partly by arguing the James is somehow only going after him or Republicans.

He accuses her of -- quote -- "literally campaigning" on prosecuting him.

So briefly, John, what is the legal standing, if any, of that kind of counterattack? And then Jason will pick up the political dynamics that Trump`s trying to lean into, something that he has rhetorically benefited from before, when he can make it about the deep state, in this case, the state of New York.

John?

FLANNERY: Well, he, Trump, depends on the ignorance of the public not to know that that A.G. is already investigating Cuomo on two investigations that have been identified publicly. And if they lead to something else, they will lead to something else, whereas Trump, we have been looking at him for years now.

And we have had agreements. And he`s paid $2 million as a result of the fraud of one of his earlier charities, which sort of rhymes like this problem here, when you`re talking about Steve Bannon.

So, the trouble with Trump is the only time you can ever rely on anything he says, policy-wise or truth, is if he is implicating himself in misconduct. That is the only time you can rely on him. And he doesn`t do it intentionally.

(CROSSTALK)

MELBER: That might be a little harsh.

(LAUGHTER)

FLANNERY: OK.

He`s not may pal. There isn`t a person in...

(CROSSTALK)

MELBER: What if he orders -- well, John, it`s overstatement.

I mean, what if he orders a cheeseburger? Can you rely on the words to connote that he wants a burger?

(LAUGHTER)

FLANNERY: Well, you mean his appetite? Well, I know he loves McDonald`s.

(LAUGHTER)

MELBER: I don`t mean it that way.

I just mean is -- now I really feel like I`m in law school. I just mean, you said such a judgmental statement, that there are other times where his words have some content, although I will take your point and take it out to Jason that Donald Trump has been a documented liar, so the idea that much of what he says about this or that case or defense doesn`t go very far.

What`s he doing here, trying to make this about a prosecutor that many in the nation may not have thought much about it, the New York attorney general?

FLANNERY: Well, what he`s done all along...

(CROSSTALK)

MELBER: I`m sorry. I`m sorry. I`m going to Jason now.

Sorry.

FLANNERY: Excuse me, Jason.

JASON JOHNSON, MSNBC POLITICAL CONTRIBUTOR: Yes.

So, Ari, this is a thing. This has always been Donald Trump`s go-to. When I get in trouble, I find someone to attack .I say there`s an enemy, and if it happens to be a black woman, all the better.

But we have to understand the larger context here, why he`s doing this, right? The corruption in the Trump -- in the Trump Organization, it`s been out there. They have been playing with money. They have been avoiding taxes. And they have been doing this with impunity. They were all acting fresh as heck while the feds were watching, because he knew that William Barr would protect him under any investigation.

Well, now that`s over. He`s not the president anymore. He can`t get people to just cover for him. So his best bet is, hey, look over here. Look at the black woman attacking me. Hey, look at the Democrats and the deep state.

Here`s the problem right now, though. He`s not in power. His kids aren`t in power. Nobody really owes him anything. Maybe some of the Republicans do. But a lot of the political leadership, they don`t owe anything to Donald Trump.

So I don`t think -- no matter how many 909-word statements and documents he releases, I don`t think he`s going to be able to be as effective this time in rhetorically distracting people as he has been in the past.

And if this investigation ends up going, -- because it`s only a small group that runs this, if this investigation ends up finally hitting Ivanka, or Jared or any of his kids, that will have an impact on their political fortunes heading into 2022, because it could make other members of his family toxic beyond just him.

MELBER: Emily, take a listen to how Letitia James has discussed the fact that no one`s above the law.

(BEGIN VIDEO CLIP)

JAMES: He should be charged with obstructing justice. I believe that the president of these United States can be indicted for criminal offenses.

(END VIDEO CLIP)

MELBER: That`s a partly legal question from a couple years ago, Emily, but it also speaks to how she`s carved out her role. She doesn`t seem afraid of the Democratic governor or the former Republican president or any of that.

BAZELON: Right.

I mean, what you want here is the independence of the attorney general, of the district attorney.And the fact that they are representing New York state, as opposed to the federal government, puts them at a different level of our federalist system than the one that Donald Trump used to be at the head of.

And that, I think, is an asset for their independence. What you don`t want is a prosecutor or an attorney general who`s already made up his or her mind, or who has a political axe to grind.

And so I think it`s on all of us to watch this really carefully and make sure that whoever -- if there is an indictment, that it is super compelling. And, yes, that might mean there`s a higher standard for charging a former president.

But, given the political significance of that, given what -- how weighty it is to have criminal charges against someone who used to run the country, I think that`s OK. I think that`s actually a good thing, if we`re all watching especially carefully and making sure that these prosecutors really have their ducks lined up in a row.

MELBER: Right.

And, I mean, it`s -- pick your plot. Whether it`s a movie, or a classic novel, this is building to potentially one of the biggest decisions they have to make, and they have to make it for the right reasons and the right way. And it will be scrutinized and pressured in every direction.

So, we have heard from many people in these tough calls before the best thing, of course, is for them to just make the right call based on the evidence, even at a potentially higher, justifiable standard that Emily reminds us, because people who are charged, well, you got to bring them to New York, and you get the booking photo. And the whole country sees that booking.

And then you go through the rest of the process. Whoever those people may or may not be at Trump Org, this is the whole big enchilada, or, as John would say, the Trumpy cheeseburger.

I got to fit in a break. We have gone 20 minutes on the big story. My thanks to Emily, John and Jason.

We have our shortest break of the hour, just 30 seconds.

Who is here when we`re back? The one and only James Carville, as we await a historic vote on the January 6 commission.

We also have, joining us later, Trump Org executive Barbara Res tonight -- when we`re back in 30 seconds.

(COMMERCIAL BREAK)

MELBER: The New York attorney general joining the criminal investigation led by the Manhattan DA into Trump Org.

We are joined now by a very special guest with unique insights.

Barbara Res was a former senior Trump Organization official, executive vice president. She worked with Donald Trump for over a decade. She also wrote the book "Tower of Lies."

Thanks for coming back on THE BEAT.

BARBARA RES, FORMER TRUMP ORGANIZATION EXECUTIVE VICE PRESIDENT: My pleasure. Good to see you.

MELBER: Based -- good to see you.

Based on your experience and knowledge of how Trump Org operated, Mr. Weisselberg, the finances, and the rest, do you have this sense that these investigators will find a lot of things that went right up to the line or over the line?

RES: Both.

I mean, he always goes right up to the line in every single thing he does. That is the mantra. That`s the way they operate at the Trump Organization, but, if need be, go over the line, absolutely.

MELBER: What do you think Weisselberg is feeling and thinking today?

RES: I think Weisselberg is very concerned about his kids. I think that what they`re doing is the kind of thing they did with Flynn, remember, and his kid. And then he turned or he caved, whatever.

I don`t think Weisselberg will let his children go to jail. So, that`s what he`s dealing with.

MELBER: Thank don`t?

RES: And maybe -- no, no, no, no, no.

(CROSSTALK)

MELBER: Because we watch this -- we watch this all, and I don`t view it as a soap opera. In my time working in law and my time in journalism, every single person we deal with is a real person, however flawed. They got a real heart, they got a real soul, they got a real family.

And these are tough, tough situations, when people are looking at their own legal jeopardy or sometimes, as you mentioned, of their family members. So, this is not -- this is not a soap opera.

But we did see different typologies. We saw Paul Manafort, for example, who was willing to do hard time and never give up the goods. And he ultimately was rewarded by Donald Trump. We don`t know, historians may probe, if they can ever prove how direct that deal was, because it`s easier to do time if you know it`s going to end after the election or not, vs. open-ended.

And then there are others who weren`t going to do a day.

(CROSSTALK)

MELBER: Go ahead.

RES: No, I was just saying ultimately is not the right word.

In my opinion, this was all a done deal before, beforehand. Same thing with Stone and anyone else. And Trump would do that.

(CROSSTALK)

MELBER: Well, you could say that. Let me just say, Barbara, you might very well be right up. I can`t say it, journalistically, because we haven`t two- sourced it. We haven`t confirmed it.

RES: Yes.

MELBER: You`re saying you have deep knowledge of this man Donald Trump, and you -- that leads you to think that they struck a deal. And that`s more than most people on TV. You really know.

But build out your point on that and build out your point on what that means for investigators pressing Weisselberg, if he`s not someone that will do time, but he knows everything about the money.

RES: Right.

Well, to your point, I agree. I -- this is from my opinion. And we`re all only talking opinion here. I have no facts. But I do know Donald. And I seen him operate. And I have seen the organization operate.

Weisselberg has evolved from a different person. I don`t know exactly where he`s at now. But I knew who he was when I was there. And he was a very quiet, recalcitrant kind of guy. He bowed to Donald Trump. He even called him Mr. Trump, when the rest of us all call him Donald.

So he adores Donald Trump. You have got that as a given. And, that, Trump knows, and has relied on as this trusted and probably the only trusted employee left, other than family.

But you put Allen Weisselberg -- and, like you say, everyone has a heart. I would question about that when it comes to Donald. And I mean that.

But Weisselberg will not -- he will not go to jail, and he will not go to let his children -- throw them under the bus, so to speak, because there is no pardon coming down the road. The only thing Trump has to offer anymore is money.

MELBER: Yes.

RES: And I don`t know that money would pay off jail time.

MELBER: Final question.

If Donald Trump did something over the line in these recent years within statute of limitations, do you think he left enough fingerprints for these investigators?

RES: Trump has a way of getting people to do things that he wants them to do without saying, do this. And that is -- Cohen talked about that, too. That is the way that we all lived there.

It was not, I`d like to see this happen, or what would be -- what would it be like if this happened, or maybe this should happen, but not go out and make this happen, except, except when it came to people like Calamari, not calamari, the squid, as you recall, who I don`t know -- I haven`t heard if they`re talking to at all, and people like Allen.

And, yes, he -- I`m sure he told them what to do. Now, whether -- will Alan talk? It all -- who knows. That`s yet to be seen.

But fingerprints? Yes, he`s got fingerprints.

MELBER: Sometimes, they say those who know don`t talk and those who talk don`t know. And I have seen examples of that.

Barbara Res knows it well and is willing to talk to us. And we`re grateful for that and people can check out the book, "Tower of Lies."

Thanks for coming back, Barbara.

RES: It was my pleasure, Ari.

MELBER: Appreciate it.

We have a lot more on the other angles on this development, including, will Donald Trump have to sit down under oath in a way that he never did in any of those probes while he was president?

Also, the House has begun the formal vote on the other big story I told you about, creating an actual commission, like the 9/11 Commission, to deal with the MAGA riot.

The ins and outs, well, James Carville, who knows his way around the history, is here on that and a whole lot more -- when we come back.

(COMMERCIAL BREAK)

MELBER: Right now, we`re watching the House, which has begun voting on this question of creating a January 6 commission to investigate the MAGA Capitol insurrection.

We`re joined now by legendary Democratic campaign strategist and adviser to President Clinton James Carville.

Thanks for being here.

JAMES CARVILLE, MSNBC ELECTION ANALYST: Good to be here, Ari. How are you?

MELBER: What`s 504?

CARVILLE: The area code. You see, it`s purple, green and gold. It`s the colors and it`s the area code. It`s kind of a fun thing.

(CROSSTALK)

MELBER: Respect. That is fun. Well, I didn`t know it. I`m sure, down there, everybody knows it -- 212, yes. I`m trying to think..

(CROSSTALK)

CARVILLE: Yes, 212.

(CROSSTALK)

MELBER: I think -- shout-out to 212. I think, Brooklyn -- I was going to say Brooklyn is sometimes 917 and 347. You know all your area codes.

CARVILLE: Right.

MELBER: So, look, so now you taught me something.

I want to show the evolution we have seen with some Republicans claiming at one point that they either cared about what happened on January 6, that is, that it was a bad thing and they thought it should be dealt with, or even it should be investigated.

Here are some Republicans supporting the commission.

(BEGIN VIDEO CLIP)

REP. JOHN KATKO (R-NY): The American people and the Capitol Police deserve answers and action as soon as possible to ensure that nothing like this ever happens again.

REP. PETER MEIJER (R-MI): The imperative to have a public, objective, fact-based investigation of the Capitol attack is not a partisan issue. And it should never be treated as such.

REP. FRED UPTON (R-MI): Nearly five months later, we still don`t have the answers to the basic questions. Who knew what when? What did they do about it?

(END VIDEO CLIP)

MELBER: And we are now getting a view of who is consistent.

The tally is still coming in, but we have, rough count now, about 28 Republicans voting for this commission. The vote is ongoing right now. We will give people the results as we get it.

Most Democrats obviously have been on record supporting it. And so what you have are some Republicans being consistent, others being inconsistent, and really running from the idea that this should even be investigated, James.

CARVILLE: Well, it`s worse than you think, because the first guy you saw, Congressman Katko -- I think I might be mispronouncing his name -- he was authorized to negotiate it with Congressman Bennie Thompson, who`s from Mississippi, the state I happen to be located in right now.

And they had this entire agreement that everybody was on board with. And then, all of a sudden, the Republicans figured out that Trump -- this was not good for Trump. And so they all changed.

I mean, it`s even worse when you go -- when you look at the facts of it, it is much worse than it is on the surface. The more you -- the digger you deep (sic), the worse it gets.

And then Mitt Romney supposedly was furious and was furious at the 6 January events, was furious at -- I mean -- Mitt Romney -- I`m sorry -- Mitch McConnell, and then look what he does.

It`s Donald Trump`s party.

MELBER: Yes.

CARVILLE: It bends to his will at every juncture.

That`s just simply what it is.

MELBER: Even on this.

And, James, you name-checked McConnell. We have a quick fact-check on him. Take a look.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY): President Trump is practically and morally responsible for provoking the events of the day.

I have made the decision to oppose the House Democrats` slanted and unbalanced proposal for another commission to study the events of January the 6th.

(END VIDEO CLIP)

MELBER: James?

CARVILLE: Well, it wasn`t the White House. It was the Congress.

It was the head of Homeland Security and the ranking member of Homeland Security that hammered this out. I mean, it`s not even factually correct on its face.

There are a lot of Democrats screaming that the White House ought to be more involved in this. I mean, the -- when it comes to Trump, it doesn`t matter. They`re going to say whatever they have to say to appease and please Donald Trump.

And Mitch McConnell, it doesn`t matter that he makes a fool out of himself time and time again on national television. He has to bend to Trump`s will.

And people say, well, that`s over. Mitch McConnell, he`s had enough of Trump. I will tell you what.

MELBER: Did you ever...

CARVILLE: No, he hasn`t, because he`d lose his job as head of the Republican...

MELBER: Did you ever think -- right.

I mean, did you ever think, James, that you would be looking at the United States of America and see a political party actively or in the majority oppose investigating such a grievous attack on our own Capitol?

CARVILLE: Ari, my view is, there`s no such thing as the Republican Party.

It is a Trump cult. It`s not a political party, in the sense that it builds coalitions and tries to expand things and compromises and does some good things and some bad things, and it`s a kind of clumsy, awkward, whatever a political party is.

It is a cult of Donald Trump. And it is that way because that is what Republican voters demand. They demand that the Republican Party be about Donald Trump, and Donald Trump alone.

And Mitch McConnell and Kevin McCarthy have found that out. They know it. They don`t speak for the party. They`re lackeys for Trump. And the reason they are, if they are not, they will not retain their positions in leadership.

This is something -- did I ever think I`d see this? No. Neither did you. Neither did the 504 area code or the 212 area code or the 213 area code or any other area code in the country never thought they would see anything this ridiculous.

But that is what`s going on. The Republican Party is now officially a personality cult, with what the exemption of Liz Cheney and Mitt Romney and 20 percent of people like that.

MELBER: Yes.

CARVILLE: But the majority of the Republican Party is a -- now a personality cult. And we just have to cover it that way.

MELBER: Yes.

CARVILLE: And we have to deal with it that way.

MELBER: Well, and it`s that serious when it is in response to documented political violence, because this is how democracies can be -- can come undone.

And there`s been times where there`s been violence in the past that`s been linked to various fringe groups or political groups, and the test has always been for every official to try to actually rise above that, however partisan they are around the campaigns.

I know you care about your campaign season. I know you campaign hard, but I also know that you care about facts and the country at large, as a patriot, right?

I want to play a little bit of the president you advised and how he tried to summon unity after the horrific Oklahoma City bombing. Take a look.

(BEGIN VIDEO CLIP)

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: Let us let our own children know that we will stand against the forces of fear. When there is talk of hatred, let us stand up and talk against it. When there is talk of violence, let us stand up and talk against it.

In the face of death, let us honor life.

(END VIDEO CLIP)

MELBER: James?

CARVILLE: Of course. I mean, and that`s President Clinton. He never, ever pitted one American against another.

Neither did most people in politics. We`re now praising people for being for democracy. I mean, think of where we are. I don`t know. And I`m 76 years old.

MELBER: Yes. Yes.

CARVILLE: I took civics. I never thought about democracy. I never said, well, gee, I`m a real patriot. I`m participating in the electoral system here. I`m part of the greatest democracy in the world.

That democracy is under serious threat now. We`re not -- we don`t care what you think about capital gains. We don`t care what you think about social issues. We don`t care what you think about anything. Just for God`s sakes, please be pro-democracy. And we will heap all the praise that we possibly can on you.

Well, that was the kind of -- we all took that for granted. We never thought -- I never thought I was a patriot. I don`t think that Mitt Romney ever thought he was being patriotic. I think it was just the position that you grow up in the United States. And that very concept is under severe attack.

So, I don`t know. It`s a very difficult time to go through. I thought it would get better. It seems to just deteriorate by the hour.

And I hope -- your previous guests, the only thing that can stop this, we`re all -- we`re all in Cy Vance`s hands here, or Letitia James, or Fani Willis in Fulton County, because that`s the only thing that can stop this and get the Republican Party back to being a political party, because, right now, it is not a political party.

And you saw that with Kevin McCarthy`s action. You see it with Mitch McConnell`s action. You have seen it across the board. It is a personality cult that bends to the will of a single personality. And that`s -- I don`t really think that`s an arguable position.

I think that`s just it`s raining outside, OK? It just is. If you step out, you`re going to get wet, I promise you. And I think that`s where we are, Ari. I really do.

MELBER: I think you lay it all out there. It is raining. You tied all the big stories together.

And they are all related, in the sense of whether this country will face up and reckon with some of these problems or not.

I want to thank James Carville.

I think we will go full here, take a full look at our screen. And I`m just going to read off. Time has expired on the vote. They have not gaveled the vote into a formal ruling yet.

But if we look here at the House floor, I think we can see the vote there. You see over 200 votes in favor of this commission, 245, 158 nay, 33 Republicans right now on record for the commission, 158 against.

And so what you see here, again, as a matter of formal procedure, this has not been gaveled in. We are not reporting yet the final House action, but time is out, 245-158, only 33 Republicans in the end ultimately voting for the investigation of what happened in their own chamber, the attacks on their own place of work, the public threats to their own lives.

We`re going to keep an eye on this for when, as mentioned, the formal House procedure continues to gavel it in.

I`m joined right now by former U.S. attorney for the Southern District of New York David Kelley, who knows his way around complex investigations and who, full disclosure, was once my legal boss.

Good to have you back.

DAVID KELLEY, FORMER U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: How are you, Ari?

MELBER: I`m good.

We have so much to talk to you about, including some of the prosecutions you have led. There was the Bernie Ebbers case, where you deal with complex financial crime. He was charged with securities fraud. Some may remember it was actually at the time one of the largest accounting scandals in history.

And I will remind viewers, Mr. Kelley got the conviction, connected the dots.

The Ebbers defense at the time was -- quote -- "I never knew." He claimed he didn`t know about -- quote -- "technology" or the underlying financing and accounting that was going on sort of -- quote, unquote -- "in his name."

Now, David, we bring this up because Trump has used a similar defense in other cases, ranging from NDAs to saying he doesn`t know things because he relies on others.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: Remember this. He`s an attorney. Whatever decision he makes, you`re supposed to rely on an attorney to make a decision.

When you have an attorney, you`re supposed to be able to rely on your attorney.

QUESTION: Attorney-client privilege?

TRUMP: Well, it`s -- but it`s also-called reliance.

(END VIDEO CLIP)

KELLEY: That`s a hard defense to pursue.

MELBER: David, how does that work? Go ahead. Go ahead.

KELLEY: Well, a couple of issues here.

First of all, let`s talk briefly about the New York attorney general coming into the case. And what does the New York attorney general bring to the case. She brings, among other things, venue, because, as you recall, some of the real estate that`s at issue here is outside the Manhattan district attorney`s jurisdiction, number one, but, more important, brings the Martin Act.

And the reason why I want to harp on the Martin Act is because Martin Act is a state law, eligible to be prosecuted by the New York attorney general that doesn`t require the normal scientia, the normal knowledge.

It`s almost a strict liability provision. So, it wouldn`t -- you wouldn`t really have the same challenges about what they knew, number one.

But what Trump is talking about in that clip that you just showed is something relating to an advice of counsel defense. In other words, I relied on my lawyer. But that doesn`t hold water unless a bunch of things happen.

Number one, the attorney had all of the information. Number two, you did exactly what the attorney told you. And, three, it was reasonable reliance on the attorney`s advice. In other words, you knew that what the attorney was telling you was accurate, because you gave him the real facts. You knew the -- what the attorney told you was good legal advice because there`s no shenanigans.

So you can`t just say to the lawyer, hey, this is what we want to do, and why don`t you find a way for us to do it, because we know it`s really not kosher? That doesn`t work. So, it -- ultimately, he may have an advice of counsel defense.

But, to be clear, it`s a difficult defense to bring in any case, and it typically fails because of some of the hurdles, or a lot of the hurdles, some of which I just mentioned.

MELBER: Yes, build on your point that this attorney general joining the criminal part of the case brings new tools.

When you say that the use of that particular law, the Mann Act, means there`s a more powerful way to pursue the Trump Org or anyone potentially committing these crimes, including potentially Donald Trump, how would that work?

KELLEY: So, that might be a slip of the tongue, because the Mann Act is a prostitution across state lines act.

What we`re talking about is the Martin Act. And it`s a law...

(CROSSTALK)

MELBER: The -- excuse me, the Martin Act.

KELLEY: It was enacted in 1921.

And it`s a really, really broad fraud statute. Remember, it -- I think it most people learned of it or understood it back with Eliot Spitzer as attorney general, who threatened to use it a lot, because of this very, very murky scientia element to it that you don`t really have to show knowing, willing intentional conduct.

If they were generally aware of it, it may fly under the Martin Act, number one. And you don`t have to intend to commit fraud. But if fraud happens, and you knew of the conduct that was resulting in the fraud, you`re probably going to be guilty of the Martin Act.

It`s a really treacherous statute for anybody. And I think by bringing the attorney general`s -- that tool in with what the district attorney is investigating, I think, when you put the two together, it`s really a potent, potent weapon for them both.

And it also makes an awful lot of sense to share resources. It would be silly to bring two separate cases, one from the A.G., one from the New York attorney general, when, when you put all that together, when you have a broader jurisdiction, both on the law and a broader venue, and you can get more acts into one case.

So that may be what they were thinking about when they joined forces.

MELBER: That`s the last thing I wanted to ask you about, because you have been inside these kinds of cases, the joining of the forces.

You -- I mentioned Ebbers. You did Martha Stewart. Those are cases where you may have SEC or other groups around. You did terrorism cases, John Walker Lindh, where, obviously you have main DOJ and other agencies involved.

When you see the A.G. link with the DA like this and publicly confirm it, as they did to such great intrigue last night, what does that tell us on the outside about the status of the case? For example, it seems to imply that the DA is not about to close up shop and say no charges tomorrow, if they make this announcement today.

What can you glean from that, having been in some of these situations yourself?

KELLEY: Well, look, we`re all kind of reading tea leaves at this point.

MELBER: Yes.

KELLEY: But it`s not unreasonable to figure, one, that they both just put their foot on the gas a little bit more.

And recognize that people don`t -- I mean, the general public does really appreciate the competition amongst law enforcement agencies in New York is pretty fierce, a lot of turf battles going on. And it`s not often that you would see the attorney general and the district attorney for any one of the boroughs joining forces, particularly in a case of this high a profile.

So I think that`s really significant. And I think when you think through why they might have done it, it`s even more significant. Hard to say how far along they are. Mark Pomerantz is, by all accounts -- he`s a former colleague and a good friend of mine.

He`s a -- he really knows his stuff. And I think the DA`s office and the attorney general`s office also have some really good other people on this case. And I think putting them all together makes tremendous amount of sense.

If I was the target of that investigation, I would be not a happy camper.

MELBER: Maybe you saved the most interesting for last, David, because I know you`re pretty careful with your words.

But you`re saying, take it all together, and if you were the target, whether you`re the money person at Trump Org or more senior person, this is a bad and sad day. Interesting.

David, thanks for coming back.

KELLEY: My pleasure. Nice to see you.

MELBER: Yes, sir.

We`re also tracking the House floor. These are live pictures, this vote to establish the January 6 commission nearly complete. They`re out of the time. They haven`t gaveled it shut yet, more than 30 Republicans now voting yes.

We have more on that breaking story right after this.

(COMMERCIAL BREAK)

MELBER: You`re watching MSNBC breaking coverage.

And we are looking at the floor of the United States House, where, as you can see, 250 members of Congress voting on the big issue of the day, whether to begin a full investigation of the January 6 insurrection, 175 on the right there in opposition, 35 Republicans voting with the Democratic majority here.

They can see -- you can see the clear majority. This has not been gaveled into a final vote yet. But we can see, of course, the outlines of support to do this commission, 175 Republicans, the bulk of the party, opposing the commission.

And this all comes after a busy and turbulent couple days, where Republican leadership turned not only on the commission, but on their own negotiators. We`re watching some business there, you can see ,right near the -- it looks like -- if I believe I`m seeing correctly, it looks like we`re seeing the speaker approach the lectern there at the gavel

Let`s listen in.

We are actually...

REP. NANCY PELOSI (D-CA): On this vote, the yeas are 252, the nays are 175. The bill is passed. Without objection, a motion to reconsider is laid upon the table.

MELBER: And there you have it, Speaker Pelosi gaveling in the vote, as expected, Democrats passing this largely party line, with about 30- something Republicans.

We saw the gavel there still next to a nicely appointed bottle of sanitizer, a 2021 moment.

And to take this in and understand how a congressional investigation like this works, former prosecutor and a counsel to multiple congressional probes John Flannery, former special counsel as well as -- the Senate Judiciary Committee, joins us. He`s been providing a legal analysis on more than one story tonight.

John, it is so easy to get lost in all of the dribs and drabs. Let`s take a step back and walk us through first what it means that the United States House has now taken this step to have a full investigation, beyond and apart from the criminal prosecutions, which happen in a different branch of government, to deal with the attack that also occurred in that very building.

FLANNERY: Well, I think the significance is not only that the Democrats carried the day, which was expected, without anybody, apparently, stepping back from that proposition.

And despite the fact that the Republicans did step back -- McCarthy, the minority leader, stepped back from an agreement that seemed to be in place, meaning that they were cowed again by Trump, the orange menace from the West Wing. And he still has this power over the Republicans.

Now, the Democrats probably whipped their vote or maybe didn`t have to do much. But no one could whip them to vote for it of the 35 Republicans who did. And so I think that`s a strong statement that all is not well in the big lie, which is a critical aspect of what the commission is going to look at.

And I find that encouraging. Now ,we go from here to the Senate. And the question is, are we going to get the 60 votes, or is there going to be a motion among the Democrats to pass this on a majority vote? And in the past, Manchin and others have resisted that.

But this is such an important thing, I would hope they do it. And we have heard through the day people who draw strength from the fact that the 9/11 Commission did its work and answered questions that they had, those who suffered and lost people, and cared about what this nation did.

And this commission has become that, that we want independent, respected people to arrange a staff to do some very careful studies, and to tell us what happened on that day, not just what we all know, but who, if anyone, did more? Who betrayed their office, for instance?

What was the president doing from the time he told people to go to the Hill? What was he doing in the White House? There are a lot of questions. But those are the questions to be answered by the commission.

And ritual is important. Ritual is how we move forward, how we respect the body, the commission in this case, that would tell us what they found. And there may be criticisms if they make errors. But, in the past, we have had some terrific commissioners.

Rick Ben-Veniste is a good friend of mine. And he would be one of my models of people who participated, because he not only, as an individual, worked on it. He also helped bring people together to understand things that were going on. And so he was part of that.

Those kinds of people are what we need for this commission, to send the word to America that democracy is sound, autocracy is not accepted, and that you can`t challenge the government by threatening to take out the speaker or the vice president, and have nothing happen afterwards.

And I think the nation has a hunger for accountability. And we haven`t had it. We have been talking today earlier in the show about accountability for acts that appear to be criminal, but yet have not been charged. And maybe they won`t be charged. Maybe they won`t find a case.

But the nation feels that there`s an accountability that`s not been had, and that we`re suffering in part because people do things, we wring our hands, grab our pearls, but then don`t act upon the sanction or the punishment that is necessary to deter this kind of conduct from going forward.

MELBER: Yes.

And, John, you look at -- we were just watching the floor. I was listening to you, but it looked like they had a moment of silence or prayer after the speaker gaveled this in.

I have just got about 90 seconds until I pass it to Joy Reid.

But you have done congressional investigations. What do people need to understand at the basic level of what a commission like this would do?

FLANNERY: What it would do is give a statement of the facts, give a statement of the law, and propose remedies going forward of what we could expect.

Those are the most important things. And people would have to have access to summaries and so forth of these findings, so that they could find credible the conclusions and understand the recommendations.

And that`s the hardest thing, to move people toward change. This should be easier. But ,in these current times, plainly, it`s not, when we see so many members of Congress work toward a compromise on the Republican side and then walk away from it.

We`re in a dangerous time, when they would listen to a person who was at the heart of this offense. And we do have the problem of the conflict of interests of some people in the Republican Caucus, in the conference, who apparently thought this was fine, and so don`t want to be anywhere near this, don`t want to be a witness, don`t want it to happen.

It has to happen for that reason alone.

MELBER: Yes, or individuals who revealed in their moment of candor, or even fear, understandably, that day and in the days after that they thought it was terrible, that they demanded justice, some even in the Republican Party saying Donald Trump should be held accountable, that he was a part of causing it.

And they ran from that in public, which stitches all of these big stories together tonight. I mean, we began this somewhat busy hour with you, John, discussing the confirmation of the attorney general of New York doing a criminal probe with the DA of the former president.

And we end the hour now with something that was not law yet, according to the House -- the Senate would have to make it real -- but the House trying to make law, this commission to investigate what people did in the name of that then-president to try to overturn democracy itself.

It sounds heavy when you say it, but it`s literally why this commission was being attempted to be created today.

John Flannery on more than one story, I want to thank you.

I want to thank all of our experts tonight.

If you`re looking at the House floor here and joining us here on THE BEAT, I thank you for following the news with us, the House voting to pass a commission to investigate the insurrection of January 6.

I will see you back here tomorrow at 6:00 p.m. Eastern.

"THE REIDOUT WITH JOY REID" picks up our breaking coverage on a busy day in Washington -- next.