Summary
Congressman Adam Schiff speaks out. Attorney General William Barr announces that the Justice Department has found no widespread voter fraud in the presidential election. New court filings reveal a DOJ investigation into an alleged crime relating to bribery in exchange for a presidential pardon.
Transcript
NICOLLE WALLACE, MSNBC HOST: "THE BEAT WITH ARI MELBER" starts right now.
Hi, Ari.
ARI MELBER, MSNBC HOST: Hi, Nicolle. Thank you so much.
Welcome to THE BEAT. I am Ari Melber.
We're tracking several big news stories right now, this crucial vote coming in tonight on who gets the COVID vaccine first, the CDC ruling and announcing this vaccine will go first to health care workers and nursing home residents.
That's a development that may sound logical, but this is now official, another sign of the planning for these coming vaccines.
Also new reports about how President Trump and his top officials are rushing to use their powers in government before they run out. The Intelligence Committee chair, Adam Schiff, joins me live on that story tonight. There are several angles.
Plus, news for how Trump's legal strategy has basically got the top government lawyer that Donald Trump used to praise most now undercutting him.
And that's our top story right now, Attorney General Barr saying something today that is, on the one hand, entirely ordinary: The election is over, and there was no widespread voter fraud. But, on the other hand, that is also big news and allegedly news to Donald Trump, after all the battles were Barr loyally politically took Donald Trump's side in public.
Barr during an AP interview to reaffirmed no evidence of systemic voter fraud.
Now, we always try to keep it real with you. So let's be clear. If this sounds a little familiar, it is because it's a P.R. rerun of what Bill Barr already put on paper after the election, that there was no major voter fraud.
In fact, it was just days after the election when the media-savvy attorney general tried to give Donald Trump one last little itty-bitty sugar high, a couple of headlines as a balm for the loss. And he released this official-looking memo.
And the very night that news broke, if you were with us, you may recall we reported that, legally, the memo was just bad news for Trump, because it found no voter fraud. And it only lightly tweaked the timeline for any unlikely voter fraud probes.
Now, I will tell you, we looked back at this. Barr actually did get some dramatic headlines like this. That's from that night, not tonight, which had "The New York Times" implying there was some big special new authority, which was a bit of a stretch.
Now, here we are three weeks later, and Barr is delivering all of this as one more predictable chaser, because today's scoop offered to the press, we will show you right here. You can judge for yourself. It was already in the fine print from that original memo about three weeks ago, stating that fraud irregularities did not change the outcome of any election.
So, Donald Trump's not getting the answers he wants from the top lawyer in government. And in a sign of Trump's lack of control over Barr, at least on this matter right now, Trump wasn't calling DOJ or calling him in for a meeting. He was just reduced to plaintively tweeting at the outgoing A.G. Today.
But let's be clear. None of that means that Donald Trump's powers as a chief executive are over yet. Far from it. He is the president.
And one of the president's greatest unitary or unreviewable powers is over pardons. And we now have reporting that Donald Trump has begun discussing giving a pardon to his own lawyer, Rudy Giuliani, two discussing a preemptive pardon as recently as last week, "The New York Times" reports.
Now, those famed prosecutors in the Southern District of New York have been investigating their former chief, Giuliani, reportedly over his Ukraine work, which, of course, helped get his client impeached.
(BEGIN VIDEO CLIP)
BRIAN WILLIAMS, MSNBC HOST: Rudolph Giuliani under investigation for his role in Ukraine.
UNIDENTIFIED MALE: We learned that federal prosecutors in New York are investigating Giuliani's consulting firm.
LAWRENCE O'DONNELL, MSNBC HOST: Rudy Giuliani is under investigation by the U.S. attorney in New York.
(END VIDEO CLIP)
MELBER: Now, there have been no reports of any indictments of Giuliani since that news broke.
But here's what's really striking right now. This isn't just big news about a couple big names. Rudy Giuliani, whatever you think of him, is a famous American. What's striking is that Rudy Giuliani knows how this works. And he publicly denied committing any crimes related to all this.
He said, if the prosecutors there say he committed a crime, they're out of their minds -- quote -- "I have been doing this for 50 years. I know how to not commit crimes."
And that may be true. But if Rudy Giuliani is certain that he didn't commit any crimes or pass any lines, why is he even discussing a preemptive pardon for himself? You don't need one of those unless you think you face real jeopardy. And if you're a lawyer, you know what real legal jeopardy looks like.
I mean, people may be cynical about a lot of things, but courts and juries do not just convict people with no evidence. Indeed, it takes some hard evidence to get anywhere close to a unanimous verdict for a criminal conviction.
And that goes to the very next legal headache at the White House right now, Donald Trump's own supporters, a very prominent one, suggesting that, maybe like Giuliani, Trump himself also needs a pardon and should try to give it to himself.
(BEGIN VIDEO CLIP)
SEAN HANNITY, FOX NEWS: If Biden ever became president, I would tell Trump, pardon yourself and pardon your family.
(END VIDEO CLIP)
MELBER: Now, there's no reporting on whether Donald Trump would be about to do that before he leaves office.
But this is also, for your context, not a random comment. Donald Trump famously listens to Hannity. He's followed some of his past public suggestions.
And CNN reports a former White House official saw Trump become obsessed with the pardon power, reportedly asking about that very thing, self-pardoning.
Now, it would be unprecedented. And DOJ rules currently bar a self-pardon by the president. But there's no final word on this one from the Supreme Court. History is somewhat instructive. Remember that, even though Richard Nixon resigned over his misconduct as he faced a potential Senate conviction, he still never tried to pardon himself.
Why not? Well, a valid pardon would have been in his interest. That makes sense. But he ultimately was not sure that a self-pardon would be valid. Richard Nixon didn't think it would necessarily hold up.
And, remember, that is precisely why President Ford was the one who pardoned Nixon, so that it followed the standard order of a president pardoning someone else.
Take a look after Nixon resigned.
(BEGIN VIDEO CLIP)
GERALD FORD, FORMER PRESIDENT OF THE UNITED STATES: I became gravely concerned that if Mr. Nixon's prosecution and trial were prolonged, the passions generated over a long period of time would seriously disrupt the healing of our country. We have a long record of forgiving even those who have been our country's most destructive foes.
(END VIDEO CLIP)
MELBER: This isn't a legal comment, but forgiveness, like the pardon power, typically goes from one person to another. You cannot logically just forgive yourself.
Now, legally, the consensus among experts runs against self-pardons, which is part of also why this has never been tested. But I always want to give you the facts. That history does not mean we can say whether the Supreme Court would view this hypothetical as illegal or invalid. No one really knows.
Nixon didn't do it because, even though he was basically a crook, by history's judgment, he ultimately in the end deferred to some rules and traditions. Donald Trump has not been convicted of anything making him a crook, but if he's worried that he could be, will he be the first to do something violating the ultimate tradition for chief executives?
It's a big question. And one of his biggest supporters, Sean Hannity, is already trying to normalize a certain answer.
We want to bring in our experts tonight, former RNC Chair Michael Steele, who needs no forgiveness here. Whether he forgives himself or not, I will let him speak to that.
(LAUGHTER)
MELBER: NYU Law Professor Melissa Murray, and a former federal prosecutor with a lot of experience in all of these issues, SDNY, et cetera, Nick Akerman.
Good evening to all of you.
Melissa, as our as our in-house law professor, your view on why Sean Hannity might be saying this and whether people in the Trump White House would view this as something worth trying.
MELISSA MURRAY, NYU SCHOOL OF LAW: I mean, it's obvious why it would be seen as worth trying.
The president may face lots of legal jeopardy on the federal level, and there would be lots of opportunities for a pardon to come in and to relieve him of that. Whether or not the Constitution permits it, again, as you say, is an entirely different matter.
And there is some guidance from that 1974 OLC memo that you just mentioned. But scholars differ as to whether or not this idea that the fundamental principle is that you cannot act as your own judge, whether that is actually constitutionally grounded.
So, if that were to be the case, if the president were to pardon himself, I think we would surely expect for that particular question to surface at the Supreme Court and they would ultimately have the last word on it.
Now, to be clear, regardless of whether the president self-pardons himself, that only gets him out of the -- off the hook for federal crimes. There are still plenty of other options for legal jeopardy, including state level charges. And the attorney general of New York state, Letitia James, has suggested that there are multiple investigations going on with regard to the Trump Organization and various Trump associates, perhaps including the president himself.
MELBER: Nick, do you want to talk about Trump pardoning Trump or Trump pardoning Giuliani?
NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Well, I could talk about both of those, really. That's not a problem.
First of all, Trump pardoning Trump, keep in mind, for that to get to the Supreme Court, Trump would first have to be indicted for a federal crime. If he were indicted for a federal crime, then the pardon would be raised as a defense that would nullify the prosecution.
And, at that point, it would go up to the district courts, and the circuit courts, and the Supreme Court. Now, what president-elect Biden has already said is that he has no intention of going after Trump for federal crimes. So, I think...
(CROSSTALK)
MELBER: Although that -- as I have emphasized, Nick -- and I will let you finish.
But I have emphasized that's not really any chief executive's call. It shouldn't be, whether it's Trump saying lock them up, or a new president saying don't lock them up, isn't it more important to have independence at the DOJ, period?
AKERMAN: Yes, I agree with that.
But I think, even with that, whoever's appointed attorney general, I think, is unlikely to go after Trump. I think it puts us in a position of looking like a banana republic. We don't go after and jail our former presidents. And we just don't do that sort of thing in the federal system.
Now, the state system is completely different. And I think that's where Trump is facing real potential liability.
As to Rudy Giuliani, he could certainly be pardoned by Donald Trump. I mean, the question is, what did he do? What justifies the pardon? For him to accept the pardon is, in effect, admitting that he committed some kind of a crime. So it's hard to believe that Giuliani -- the fact that he's even going in, and if he's really discussing and requesting a pardon from Donald Trump means he's concerned about something, that there's something going on in the Southern District of New York that we just don't know about.
(CROSSTALK)
MELBER: Exactly. And that's...
AKERMAN: Yes.
MELBER: Well, Nick, I want to build on that with you, because that's important.
Not everyone knows about everything. You could come in here and talk about a carburetor. And I might know a lot less and learn from someone, right?
So, if someone's uninformed, and they're in a meeting with the president, and he -- the pardon somehow comes up, they don't know a lot. They say, oh, I don't know. Is it like get out of jail free? Is this Monopoly? Fine.
Rudy Giuliani and anyone who's been around lawyers or is a lawyer knows exactly what it means. And so the correct answer is, don't need it, don't want to talk about it. And we showed his bluster earlier, when he was saying that he had nothing to fear because he didn't do anything.
So, that makes this a pretty tantalizing piece of reporting, again, from "The New York Times," multiple sources.
Nick, we spoke to people who'd worked with Giuliani at SDNY and who'd risen to that rarefied post of running the office in a panel we did earlier.
And Benito Romano, who had the same role, spoke about this briefly. I just want to play that regarding investigation. It's audio. Take a listen.
(BEGIN AUDIO CLIP)
BENITO ROMANO, FORMER U.S. ATTORNEY: As the person who replaced Rudy, I have to say he should be treated the same way anyone else would be treated.
(END AUDIO CLIP)
MELBER: Simple legal concept, Nick. If that's the case, and it's a fair office, why would Giuliani even be discussing a federal pardon?
AKERMAN: No, I agree. I mean, that's the problem. I know Benito. I have served with him in the U.S. attorney's office. I also served with Rudy Giuliani.
There's no reason to even ask for a pardon unless you really feel that your in criminal jeopardy. I mean, Giuliani knows when somebody is in criminal jeopardy.
MELBER: Yes.
AKERMAN: I mean, I had him as a defense lawyer on the other side when I was an assistant U.S. attorney.
He knows what it means to be prosecuted. He knows what it means to have committed a federal crime. You don't go in asking the president for a pardon unless you're concerned about something.
MELBER: You said you know Benito. Raises the follow-up. Do you know Bo?
(LAUGHTER)
MELBER: Anyone remember the Bo Jackson ads?
Michael, do you remember those?
MICHAEL STEELE, MSNBC POLITICAL ANALYST: Yes, but I don't get the relevance.
(LAUGHTER)
MELBER: If Michael Steele were the judge here, he would say irrelevant, inadmissible.
STEELE: Irrelevant. Moving on.
AKERMAN: Objection sustained.
(LAUGHTER)
STEELE: Exactly.
MELBER: Michael, your thoughts on all of the above?
STEELE: Well, look, the professor and the prosecutor have set the framing of this expertly, as smart people do.
And they -- whether it is an academic exercise or a legal one, you still come back to the same question. So, why are you so worried about being prosecuted? Why are you so worried about being pardoned? What did you do?
So, look, the reality of it is, Trump's problem, he may be able to escape the federal hook, all right, whatever that may or may not be. His problem is what he did in his business. It's what he's done with his taxes or failed to do. It's what he's done in his financial dealings as a private citizen. That's what the state of New York is looking at.
And if that bled over into his operationalizing activities as president, meaning members of his family acting on his behalf, because, as we all know, Donald Trump doesn't give up control of anything. As a sitting president of the United States, he knew every day what was going on in his businesses, his hotels, his properties.
And he signed off on it. And that paper trail, you're not going to be able to escape from either. So, there are there are a lot of different hooks here for Trump to be concerned about. Pardon himself all damn day. Who cares?
You still have state actors and prosecutors who are looking at things that he is probably more concerned about than at the federal level and knows there's nothing he can do about that. There's not a pardon the planet he can give himself, Sean Hannity or Rudy Giuliani can give him that's going to get him out from under that particular wake.
So, you have got the framing, as the professor and the prosecutor have placed it. The reality remains for Donald Trump, if you have done some -- if you have done wrong, wrong is going to get you. And that's how it is. It's just how it is.
MELBER: Melissa, reading from the Giuliani perspective, in the same "New York Times" reporting, they say he's said to have discussed this -- quote -- "Giuliani's expressed concern that any federal investigations of his conduct that appear to have been dormant under the Trump administration could be revived in a Biden administration."
If you want to be as fair as possible, this is overlapping with the point Nick just raised, the view or concerns that things are too political, and that the spigot and the flow changes depending on who's in charge.
MURRAY: Well, again, it may also be, who's the object of the prosecution?
I mean, it would be one thing for Joe Biden to decide that it's not in the country's interest to prosecute a former president, but Rudy Giuliani is not a former president at all. And it may very well be within the independence of the DOJ in the Southern District of New York to continue that particular prosecution and to revive it, even if it's dormant right now.
So, again, there may be very good reason for Mr. Giuliani to be -- or to be inquiring about the possibility of a pardon.
MELBER: Copy.
All really great points and perspective on a story that's just -- it's a wild legal day at the White House. And I have covered a couple of them.
So, my thanks to Professor Murray, prosecutor Akerman.
Michael Steele, I will make you a deal. I'd love to bring you back later in the program. And I promise to try to be more relevant.
(LAUGHTER)
STEELE: You're always relevant, my friend. Always.
MELBER: I try. I can only try.
(LAUGHTER)
MELBER: Michael's one of my elders. Got to respect the feedback. Thank you.
STEELE: Oh. Oh. Now I'm an elder? Dude, really?
MELBER: Mentor? Mentor? What do you want to be?
STEELE: Don't let this fool you.
(LAUGHTER)
MELBER: All right, we will work this out later, but sincere appreciation to all three.
We have our shortest break, 30 seconds.
Coming up tonight, we have Mary Trump joining us on this discussion of family pardons, a powerful rebuke of Donald Trump undermining democracy, and the Republicans who are letting it happen, from a very conservative elections official in Georgia.
(BEGIN VIDEO CLIP)
GABRIEL STERLING, GEORGIA VOTING SYSTEM IMPLEMENTATION MANAGER: This is elections. This is the backbone of democracy. And all of you who have not said a damn word are complicit in this.
All that's wrong. It's un-American.
(END VIDEO CLIP)
MELBER: Strong.
Congressman Adam Schiff, though, comes up first, when we're back in 30 seconds.
(COMMERCIAL BREAK)
MELBER: We have been covering a mess of illegal day at the White House, and there's more.
Attorney General Bill Barr is basically adding powers to an ongoing investigation by appointing formally as special counsel in the Russia probe review U.S. attorney John Durham.
You may recall the name because he was initially tapped to look into the origins of the Mueller probe. And never forget something that turned out to be false, how Bill Barr teased the fruits of that investigation in August.
(BEGIN VIDEO CLIP)
WILLIAM BARR, U.S. ATTORNEY GENERAL: There are two different things going on, Sean.
One, I have said that the American people need to know what actually happened. We need to get the story of what happened in 2016 and '17 now out. That will be done. Tomorrow, there will be a development in the case.
It's not an earth-shattering development, but it is an indication that things are moving along at the proper pace.
(END VIDEO CLIP)
MELBER: Now, much of that was not done. There was a single indictment of a basically obscure FBI lawyer over handling of documents.
But there was never a big report or big set of bombshells. And if you follow certain conservative media, you would have thought it was coming, especially with Barr's comments.
He also was known for criticizing Bob Mueller and the scope of his probe before getting that plumb position as attorney general. He once called Mueller's investigation a fatally misconceived probe because of his views of how it perceived obstruction of justice.
That's one of several items to get to with a big guest tonight.
Congressman Adam Schiff is, of course, chairman of the Intelligence Committee.
Thanks for joining us at this busy time.
REP. ADAM SCHIFF (D-CA): Good to be with you.
MELBER: There's layers to this, but the review of the Mueller probe has already been going for some time.
The elevation of it now to be a special counsel, when they are about to leave office, does that strike you as somehow suspect, as opposed to, say, if it had initiated that way? I'm curious, is there any rationale for this, other than them losing power?
SCHIFF: No, there isn't.
And I suppose it's fitting, Ari, that, at the end of Barr's tenure, he's going out the way he came in, as the most political attorney general in memory, one more than willing to do the president's bidding in any way, with the initiation of this investigation and now with this what I think will be an unsuccessful attempt to prolong the investigation through this secret appointment, only disclosed now, of Durham as a special counsel.
The appointment is not consistent with the language of the statute that he's relying on and can be rescinded, I think, by the next attorney general. I would presume the next attorney general will look to see whether there's any merit to the work that John Durham is doing and make a rational decision about whether that should continue at any level.
But this is merely Bill Barr...
MELBER: Yes, and you -- just to clarify, you said...
SCHIFF: Yes.
MELBER: You said something about the timeline.
Your view is that Durham -- and this could matter -- but that Durham became a special counsel when?
SCHIFF: Well, that order, I think, that Barr signed appears to be dated a couple of weeks before the election.
And it's interesting that he didn't want to disclose it at that time, I think, because it would be suggesting that he thought Trump was about to lose the election.
But, nonetheless, this is an effort to prolong the...
MELBER: Let me follow up one more time, because you're saying something interesting.
SCHIFF: Yes.
MELBER: And I'm not putting words in your mouth, Congressman, but it's a subtle point.
You're suggesting that it was secret then so it didn't look like the kind of thing you do to prepare for a loss. Of course, had they won, nothing would have probably made it very public, right? Then they might not have needed to publicize it? It would have been, oh, we're covered either way?
Or would it eventually have come out?
SCHIFF: I think it's not clear, frankly, whether they would have followed through with that appointment had Trump been reelected.
Barr didn't feel it was necessary that he had some special counsel status in the past. I think it's pretty clear the only reason he wanted to confer that status now is a desire to continue the investigation after he's gone. That is, after Barr's gone.
But as the appointment appears politically motivated, as it appears to be based on a faulty premise, in the sense of the statute on which it's based, it's inconsistent with that statute, I think that the next attorney general will have every opportunity to examine, to repeal, or to allow the investigation to continue if the next attorney general thinks there's anything, any part of it that has any merit.
MELBER: The other aspect of this review of the Mueller probe is that, if they found something that was -- that there was evidence for that was really bad, we're all ears.
Mueller did not deliver the political goods that everyone wanted. There were people who wanted something to just "get at" Donald Trump -- quote, unquote -- or find -- quote, unquote -- "a collusion conspiracy."
He didn't charge that.
I'm curious what you think now that this review has had so many problems. And I will remind folks of one. A lot has happened this year. But one of Durham's very top aides, who was considered to be legit, Nora Dannehy, a Connecticut prosecutor -- she was a top aide there -- resigned about pressure, not allegedly from Durham, but from Bill Barr himself.
And then you didn't get much other reporting or material out of this before the election, which Barr himself had said was the point.
Do you view this as, ultimately, they were searching to find something bad, but couldn't? Or do you feel that, eventually, a report will come out and we have to wait and see what that is?
SCHIFF: I think the investigation really has been tainted from the beginning.
It was initiated for a political purpose, not on the basis of evidence, but on the basis of Bill Barr's desire to placate the president. The president wanted his political enemies investigated. He wanted the investigation of his conduct and misconduct itself investigated.
And Barr was willing to oblige. So, Barr appoints Durham. Then Barr wants the report before the election, in violation of Department of Justice policy, so that it can influence the election.
And then you have Dannehy resign from Durham's team because she doesn't want to be a part of that violation of department policy, that political act. And now the election is over. And you have Barr still at it, wanting now to prolong the investigation into the next administration.
MELBER: Right.
SCHIFF: It's a bit, frankly, like the investigation he announced was apparently coming to an end, and that is over election interference.
MELBER: Yes.
SCHIFF: It was prompted by Barr, on the -- with the absence of evidence. It was necessary for Barr to change department policy to even begin that kind of investigation.
And now it's come to, apparently, an unceremonious end because there is no evidence of massive fraud.
MELBER: Yes, no fraud evidence, as we have reported.
And yet that brings us to the next thing I wanted to ask you about, which is the president still going forward with these lies and conspiracy theories?
Take a look.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Frankly, we did win this election.
(CHEERING AND APPLAUSE)
TRUMP: We did win this election.
(CHEERING AND APPLAUSE)
TRUMP: This election was a fraud. This -- it was a rigged election. I mean, I hate to say it, but this was a rigged -- at the highest level, it was a rigged election.
Which I won, by the way.
It's going to be a very hard thing to concede, because we know there was massive fraud. The whole world is watching. And it's a very sad thing, a very sad thing.
(END VIDEO CLIP)
MELBER: As for the highest levels, we could show you legal certifications from the highest levels of the elections officials in both parties in all of these states.
Congressman, while, on the one hand, this is a thwarted or relatively ineffective plot, what do you think should be done, if anything, by the Congress or a reckoning for having a sitting president openly trying to overthrow state results?
SCHIFF: Well, like Bill Barr, from beginning to end, Donald Trump has been an anti-democratic president, came in tearing down our democratic institutions, and, on the way out, is tearing down more, among the most important of our institutions.
That is the peaceful transition of power. He appears to be among the last who is still willing to make these baldly false claims, along with Rudy Giuliani, who is dependent on him for a pardon to protect against his potential liability.
But there's real long-term harm here, because what he is doing is inculcating a sense of aggrievement among millions of Americans who will believe them and feel that he was illegitimately defeated or not defeated at all in the election, and that the new administration is somehow illegitimate.
That is a very dangerous poison for Donald Trump to put into the well of the American people. So, there are real consequences to this.
In terms of what the Congress can do, among the broad package of our own post-Watergate reforms we have introduced, we will have to broaden the package to include measures, for example, to allow for an orderly transition of power, not leave it up to a bureaucrat at the Office of Management and Budget to withhold that transition.
We will have to provide a statutory basis for the security briefings of the upcoming president, so we don't have that kind of catastrophe again.
MELBER: Right.
SCHIFF: There's little recourse, I think, in terms of the president for lying on his way out of office, as he was lying on his way into office.
And, remember, he was claiming millions had voted illegally in the election that he won four years ago.
But we can protect, I think, against these abuses through statutory means the best -- in the best way we can.
MELBER: Understood.
On a busy night, Congressman Schiff, thank you so much.
SCHIFF: Thank you. Great to see you.
MELBER: Absolutely.
Coming up: Who does Barack Obama want to play him in a movie? We will actually hear from the former president himself on that.
Also, a final Trump con in office, ripping off his own MAGA fans. Trump's niece Mary Trump is here live.
But first: Donald Trump's new bogus election fraud claims, with Republican silent, the damage and the accountability.
That's up ahead.
(COMMERCIAL BREAK)
MELBER: Breaking news.
We have brand-new court records -- we just got them into our newsroom -- revealing a DOJ investigation into an alleged crime relating to bribery in exchange for a -- quote -- "presidential pardon."
I repeat, the Justice Department has been conducting what has been until today a sealed and secret investigation of an attempted bribery scheme for a presidential pardon.
This is obviously big news. The documents detail -- quote -- "a related bribery conspiracy scheme." And one of the offers, which is an element of bribery, would be -- quote -- "a substantial political contribution in exchange for a presidential pardon."
I will tell you as well, before I bring in our experts, there's much we don't yet know about this, because of this kind of unsealed filing.
What you're looking at here -- and we just got this -- this is brand-new this hour -- is a federal unsealed filing that still has a lot redacted. We will get into the reasons why. But the parts that are not redacted, the parts I just quoted you from, are from other parts, the first few pages that still have heavy redactions, but reveal that, as of August, this was an investigation that had evidence of at least a scheme to try to use a bribe to secure a -- quote -- "presidential level pardon."
We are still making our way through it. I will say, in the interest of fairness, what is unsealed here and what we have does not, to my first reading, appear to speak to whether or not different people in the White House were aware and how high that went.
Let's bring in NYU Law Professor Melissa Murray and former federal prosecutor Nick Akerman, doing the toughest kind of legal analysis, breaking.
Professor, I'm just going to, again, reset by reading this to you, and let you give us your thoughts.
But, according to this unsealed filing, you have references to what sounds like hard evidence, e-mail communications indicating -- quote -- "criminal activity," a -- quote -- "secret lobbying scheme" in which redacted, blank and blank -- quote -- "acted as lobbyists to senior White House officials" -- that's the Trump White House -- "without complying with lobbying rules to secure a pardon or reprieve of a sentence for redacted," and, second, Professor, a related bribery conspiracy scheme for that contribution I mentioned.
Your views of just what a sudden unsealed filing like this means, based on what we do know.
MURRAY: I mean, these are just the action-packed waning days of the Trump administration.
It's not surprising, I guess. At this point, nothing surprises me after the last four years. But if these do involve individuals who are far up in the Trump administration, these are incredibly serious. They're serious even if they don't involve members of the White House staff.
I mean, this is clearly -- if these allegations are proven, this would be, I think, far beyond the contemplated use of the pardon power. And if it were the case that the president had pardoned someone in exchange for something like this, I think there would be real doubts about the validity of such a pardon and whether or not its use was constitutional in that particular incident.
MELBER: Nick Akerman, the professor raises the fact that the first half-hour of tonight's program, we have discussed aspects of the pardon issue, rumors, and reporting about a potential pardon for Rudy Giuliani, the president's own lawyer, Sean Hannity urging the president to pardon himself. What are the outer legal limits?
One thing that hasn't been tested a lot, but the professor refers to, Nick, is the fact that, if a pardon is a product of a crime, as alleged here by the federal government under the Trump administration, although what independence these prosecutors have, we don't know, would that call into question the potential government act, the pardon?
AKERMAN: There's no question. That would be a crime. It's a simple crime of bribery.
It doesn't make any difference that the president has a fairly broad power to pardon. But he doesn't have the pardon -- the power to pardon in exchange for money. Now, whether he did it knowingly or whether somebody else did it knowingly to get him to do the pardon is an open question. We don't know from these papers.
But, certainly, there has to be some connection to the president in order for this to work. This was not given -- this money could not have been given to the janitor in the White House. This has to be given to somebody who is in proximity to the president, such that they can prevail upon the president to actually execute this pardon.
So, this is classic bribery. I mean, just because it involves pardon -- I mean, this is a classic official act in exchange for money. I mean, there is no question that this is a crime.
MELBER: And, Nick, this is a ruling from Beryl Howell, a U.S. district judge.
From my reading of it, much of it relates to a debate over evidence that is -- again, I will just show folks, because this is real -- how it works -- that relates to what's redacted in the discussion and a debate over whether attorney-client privilege can protect communications.
And it seems that Judge Howell is skeptical of that, for the classic reason that, if it's the fruits of the crime, that breaks attorney-client privilege.
Do you have any thoughts, just from your practice experience, before I turn -- I believe Congressman Adam Schiff has agreed to rejoin us.
But, Nick, when you see this kind of redacting, obviously, it reminds us more of like a CIA report than court. But what might be under here? What more might we learn about this, if the government's successful in its case and gets more of this evidence?
AKERMAN: Oh, I think you're going to learn who it was that was trying to do the bribe. You're going to learn who is facilitating the bribe.
You're going to learn what their connection was in order to facilitate the bribe, so it could actually happen. It had to be somebody, like I say, close to the president. It sounds like there was a lawyer involved, because you're talking about attorney-client privilege.
Any kind of attorney-client privilege does not apply to statements made in furtherance of a crime. Statements made in furtherance of a bribery scheme are not covered by the attorney-client privilege.
AKERMAN: So, there is a lot of stuff there.
MELBER: All right.
I'm told I have -- I'm only cutting in because I'm told I might lose the congressman.
Our lawyers stay.
But I turn back to Congressman Adam Schiff, chairman of the Intelligence Committee.
Your reaction to this news, Congressman?
SCHIFF: Well, most of the court order deals with the attorney-client issue.
So, plainly, there is a lawyer that is either making the claim, or the court is proactively considering whether that attorney was acting as a lawyer, or whether they were, in fact, acting as a criminal co-conspirator.
And, here, the judge is concluding that they're not acting as a lawyer no matter what they're doing. So, these communications are not protected, and, therefore, they can be disclosed and obtained.
And so I think the only thing we can glean so far from this order is that an attorney with a client was representing that client not in a legal way, but in attempting to, through the use of bribery, secure a pardon.
And I agree completely. That itself would be a crime. If the president was involved, he would not be immune from prosecution for it. In fact, this is one of the things in our reform bill that we make quite explicit, but I think it is already or should be clear under existing law.
And what they're redacting there is not being redacted because it's classified in the way we're used to seeing. It's being redacted because it would disclose the identity of the parties. It would disclose the communications that were part of the effort to secure a pardon through bribery.
And the investigation is ongoing, and that would harm the ongoing investigation. But it is serious enough in this respect. It's not easy to take on attorney-client privilege. And, here, if the Justice Department was willing to take on that issue, and the court is willing to rule on it, it means it's pretty serious business that they're investigating.
MELBER: I showed the viewers what we have and don't have. And I do that in an abundance of caution, because there's much yet to learn, by definition.
Having said that, what we do have and why this is undeniably already a blockbuster, even if we don't know how high the knowledge went in the White House, is the language which is here on page two.
And I want to read it again to you, because it's a breaking story, Chairman. So I appreciate you doing the coverage with us.
The reference to a bribery conspiracy scheme which would offer a -- quote -- "substantial political contribution in exchange for a presidential pardon or reprieve."
Now, with the caveat that I don't read this as yet defining who knew what in the White House, would you be concerned, Congressman, that, if it's a bribery scheme, and the president is the person who has to give a government benefit, the pardon or a commutation, that that reference to a -- quote -- "substantial political contribution" might reasonably only apply to a very few number of people, including potentially the person providing the pardon?
SCHIFF: Well, someone in this conspiracy has to have a close enough relationship to the president or people around the president to make it happen.
They're going to -- they're -- you're not going to pay a bribe to someone who has no relationship to the party that has the power to give the pardon.
But people shouldn't presume. And there may be a tendency to leap to the conclusion that this may involve some of the personalities that have been very much in the news and who are worried about their criminal liability.
It may be someone that we have never heard of that wants a pardon, and is well-heeled, and, therefore, in a position make a sizable contribution. So, it doesn't have to be any of the parties that we think that may want a pardon, the Manaforts, the Giulianis and others. It could be someone completely different.
But, at the end of the day, someone in that chain has to be close enough to the White House where they could conceivably deliver on the official act, the pardon, if the bribe were paid.
MELBER: Chairman, the last question I have for you is somewhat phantasmagorical, but it is 2020.
We have been covering "The New York Times" reporting one lawyer for Trump, Rudy Giuliani, wanting a pardon. What happens and can the government of Congress do anything if this filing about an open investigation into a potentially criminal bribery scheme -- I'm quoting the judge quoting the allegations from the Justice Department -- is shut down by a wave of pardons?
I mean, are we hitting the limits of how any of this has ever any accountability?
SCHIFF: Well, this is coming to me without a lot of background.
But, number one, there may be issues, even though the pardon would be a federal act, that nonetheless violate state law. There may be certain parts of this conspiracy, if that's what's involved here, that are also prosecutable by state and local officials. So, there may not be a complete escape from liability.
And if the president were a party to this -- and, obviously, that may very well not be the case -- he may have no knowledge even of this -- he would not be insulated, not able to pardon himself or escape liability that way.
So, I guess the long and the short of it is, in terms of what the Congress can do, probably not very much. But in terms of what local -- state local prosecutors may be able to do, that would be more extensive.
And the Congress -- congressional role here would be oversight and prospective legislation to try to curb these abuses in the future.
MELBER: Chairman Adam Schiff, on more than one developing story tonight, thank you. I appreciate your time.
As promised, I want to bring back our legal experts, who've been generous with their time, Melissa Murray, Nick Akerman. And we're also rejoined, as planned, by RNC Chairman Michael Steele.
But with the breaking news like this, Chairman, we're going to change gears on the topics for you.
STEELE: Sure.
MELBER: But, Professor Murray, your reaction what we just heard from Congressman Schiff, and what seems like a blizzard of things happening at once, this being, as I read it, dated to August. And it's an ongoing case, but it's dated to August. But it's being unsealed today.
MURRAY: Well, again, like we're just seeing a lot of this stuff being worked through, it could be a situation where now it's just being allowed to proceed through DOJ, or maybe the judge has just decided to rule on it. We don't know what's going on in terms of the timing of this.
But, again, I think a lot of this is likely the product of winding down of an administration where there's a lot of things that we probably don't know about, but we're likely to find out about as it reaches its conclusion.
MELBER: The political question, Michael Steele, is, this is exactly the kind of thing that a careful Justice Department keeps quiet before the election.
And these are -- as we always say, these are allegations that a judge is adjudicating. Everyone's presumed innocent legally.
I'm curious what you also think about what Melissa raises broadly, which is, this stuff has been going on. This is bad allegations, but it was protected. Now some of it is starting to dribble out.
STEELE: Yes.
And I think that's an important point, because, clearly, there were some safeguards in that process, that this was something that occurred -- or at least was put in some form in August, and we're now finding out about it. So we don't know what that process internally was.
Good reporters, intrepid reporters will find that out. That process will get revealed, why in December, as opposed to September or October. That's one.
Two, I think the broader question, though, is regardless of the redactions in terms of who did what when and for how much, we know that a federal pardon is in play. And at the center of any pardon in this country is the president of the United States.
And I think that there's going to have to be a very important accounting of how this maneuvered itself into a discussion where either an inference was given that the president would be OK with this, or some direct word from the president that this is something that he wanted.
Either way, this is going to touch back on the president of the United States, which, again, going to our earlier conversation, what do you have to be concerned about? Why are you looking at pardoning yourself for things that you haven't done?
Well, funny. Maybe there is something that was done. And in light of that earlier conversation to have this drop literally, Ari, 40 minutes after that discussion says to me that there's more here politically, legally, and otherwise that we're going to be hearing about that's going to be concerning to this president.
MELBER: Yes, it's the exact context.
And, Nick Akerman, for viewers joining us here, we started the hour covering other part of news. This filing came in. It's a bribery-for-pardon scheme, as alleged by the Justice Department. This is not a commentary or an op-ed. This is backed by evidence, sworn in court, and a judge's ruling on it, looking at potential evidence to clear the way for this case to continue.
And I guess, Nick, that also goes to the question of, on the -- in the pantheon of corruption crimes, the Supreme Court has narrowed it, made it harder in some places to get traction -- we have reported on this previously -- bribery is one of the things that is really open and shut.
That's why it was one of the issues under discussion in the original impeachment discussions by the Democrats. Or, in a state law example, it's why Rod Blagojevich was in prison for years, until Donald Trump, by the way, let him out and pardoned him, after serving time in part for the bribery scheme.
When you see this -- again, I'm not reporting -- I will just repeat myself for clarity. We're not reporting how high this goes in the White House, because the documents don't say.
But for any person, government official or otherwise, however high it goes, if they have the DOJ investigating them with e-mails, et cetera, for a bribery-for-pardon scheme, where does that rate, in your view, on legal exposure?
AKERMAN: It rates extremely high.
I mean, first of all, the Supreme Court has come down with a decision on bribery. It has to be -- money has to be exchanged for an official act. I mean, this is a classic case of an official act.
In terms of what we know, we know that that document has to be filled with probable cause to show that somebody or some individuals were acting to bribe -- to pay a bribe in return for the pardon.
So, just the fact that you have got so many pages there suggests that there's lots of detailed evidence. In fact, this is the type of case that nobody would even raise or bring in unless they really had pretty solid facts to bring before a judge.
So, there is something here that...
MELBER: Let's have you expound -- expound on that, Nick, as a former federal prosecutor yourself...
AKERMAN: Sure.
MELBER: ... because, again, we're in a very polarized world.
And people say, oh, people say all kinds of things. You're making a point about what is the requirements for these federal prosecutors to be filing in court allegations of a bribery-for-pardon scheme at the White House.
AKERMAN: Exactly.
You have to put in very detailed information. I mean, you have to cite evidence. You don't just cite pure hearsay and sort of far-fetched conspiracy theories. There have got to be facts. There's got to be evidence. There's got to be conversations with people. There's got to be documents. There's got to be phone calls and texts and e-mails.
I mean, that's what goes into these documents. I used to do these all the time. You would tell a very, very succinct story, but put in all of the surrounding facts to show the judge that you have got more than adequate probable cause to bring these charges.
MELBER: Yes. I have one...
(CROSSTALK)
AKERMAN: And that's what's going on in these papers. It's not like a two-page document, Ari.
MELBER: No, no. It's -- I mean, again, I only repeat myself at my desk because it's a serious filing.
AKERMAN: Right.
MELBER: And a lot of it's redacted with regard to whether they can get more evidence, attorney-client, but a lot of it has the key words in it.
I mean, it comes out with a political contribution in exchange for a -- quote -- "presidential pardon."
Real quick, before I bring in my next guest and I lose Nick, do you recall anything like this, a filing like this, about a presidential pardon bribery scheme? Or is this a fairly unusual event?
AKERMAN: This is an unusual event. I can't recall any situation like this.
But it is classic. I mean, it's an official act being done in return for a payment of money. That is the Supreme Court's definition of bribery. And so this is a fairly serious matter. And it obviously has to touch close to President Trump. We don't know how far it goes to touch him, but it has to, because he's the one that would actually undertake the official act.
MELBER: Right. We know -- and that was a point Chairman Schiff referenced, which is at least the person trying to carry out the scheme is claiming they can get the president to do something.
Anyone who knows anything about government, that's not everyone in the Trump administration. And the people who wanted to do the crime want the result. That's pretty basic.
I want to thank Michael Steele and Nick Akerman.
Professor Murray stays. We have a few minutes left.
I want to bring in, as planned. Mary Trump, Donald Trump's niece, the author of "Too Much and Never Enough."
We invited you on tonight to discuss the reports about pardons, which have now accelerated, and Sean Hannity telling Donald Trump to pardon his family.
You, of course, are in that family, although you're not in government the way some of your family members are. Your reaction to that?
MARY TRUMP, AUTHOR, "TOO MUCH AND NEVER ENOUGH: HOW MY FAMILY CREATED THE WORLD'S MOST DANGEROUS MAN": Well, I'm pretty sure I'm not going to get pardoned. So there's that.
(LAUGHTER)
M. TRUMP: It's a very odd strategy, because it's an admission of guilt in some measure, as you know.
But I wouldn't put it past him. I think it's much more likely that Donald tries to pardon himself preemptively than it is that he resigns, lets Pence take over for 10 minutes, and have Pence pardon him.
But we're going to have to see how that plays out. Obviously, people have gotten the message that there are going to be a lot of pardons coming. And if they're on the fence about whether or not they're going to get one, they believe that it would be worth their while to grease the skids.
So, it's going to be very interesting to see how this plays out.
MELBER: Based on your knowledge of the whole situation, do you think that individuals like Jared Kushner and Ivanka Trump would discuss this with dad, or be open to it, if he would offer family pardons, as Sean Hannity and others are advising?
M. TRUMP: Yes, I think they're all in this together. I think they're all well aware of their exposure.
I'm not entirely sure why they would risk a pardon that would clearly make them look bad, considering what will potentially be happening at the state level, which no pardon will get them out of.
MELBER: Very interesting from Mary Trump, given all of this, about both the president, your uncle, and the family.
Professor Murray, I give you the final word tonight, after everything we have been through. We have about 45 seconds left.
Your thoughts on what people should keep an eye on during what is this busy legal period until January 20?
MURRAY: I mean, again, always keep your eye on what's going on in the courts.
There are a number of investigations, both at the federal level and the state level, that we need to be attentive to. It seems that, not only with A.G. Barr's admission that there was no fraud in the election, that maybe the DOJ is moving away from the president.
We may see more dribbles from the DOJ and more prosecutions and more evidence like this. So, it will be a rollicking couple of months until we get to January 20.
M. TRUMP: Yes.
MELBER: Melissa Murray, Professor Murray, gets our last word.
Mary Trump, I want to thank you and thank all of our guests, particularly on this breaking news night.
To recap it, if you joined us late, the reports about pardons range from the hypothetical to the very specific, a federal judge unsealing something that dates back to the summer regarding an alleged pardon bribery scheme, its goal, to get an illicit pardon from the president.
That does it for me. I'm sure MSNBC will have a lot more on this story and others tonight.
I will be back here at 6:00 p.m. Eastern.
Up ahead, it is "THE REIDOUT WITH JOY REID."
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.END
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