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Transcript: The Beat with Ari Melber, December 10, 2020

Guests: Mara Gay, Nick Akerman, Tom Colicchio, Bill Kristol

Summary

Why are Donald Trump and his cronies getting potentially lifesaving COVID treatment that is not available to the rest of America? A lawsuit aimed at the Supreme Court to overturn the election results is now backed by 17 different Republican attorneys general and 100 Republican House members. What sanctions should people who try to overturn a legal election face? Chef and restauranteur Tom Colicchio discusses Congress' failure Trump help small businesses.

Transcript

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

Hi, Ari.

ARI MELBER, MSNBC HOST: Nicolle, do you want -- I will give you another hour. I will just sit back and watch this. We would love that.

(LAUGHTER)

WALLACE: She's so awesome.

I mean, here's the thing. And Claire said it absolutely right? I mean, to be that comedically talented, to be that -- she's just watching live television. This is no written jokes. To be that funny, you have to have a very deep understanding of the moment and of history and politics.

And she's just -- she's just a -- she's a marvel. She's amazing. The highlight of my year.

MELBER: I agree.

(LAUGHTER)

MELBER: I agree. It's all top of the dome. It comes from her passion, her joy, her soul, like any -- but it's so fast. It's hilarious.

But I mean it. If you get her back, and you want a half-an-hour of THE BEAT, we will give it to you, Nicolle. Nice to see you.

WALLACE: Thank you, my friend.

(LAUGHTER)

MELBER: Thank you.

And welcome to THE BEAT. I'm Ari Melber.

We actually begin tonight's show with this breaking news, as Donald Trump hammers an American democracy.

Late today, Democratic lawyers are hitting back -- I can show it to you -- they're at the Supreme Court. They are taking names and going up against what we have reported on, which is, to be clear, a largely frivolous and tardy Republican suit that argues that Joe Biden's win should be reversed, even though they already blew through the certification deadlines.

Now, the new Democratic filing, which is still news because this is still a big deal at the court, and it's got to get resolved, asks the Supreme Court just simply toss the whole thing, throw out the Texas case, which is now backed by 17 different Republican attorneys general.

Many of the met right there at the White House with Donald Trump today, even as some of their own colleagues, like Texas Republican Senator John Cornyn, smacked down the case from his own state's attorney general.

(BEGIN AUDIO CLIP)

SEN. JOHN CORNYN (R-TX): It's unprecedented. I do not understand the legal theory. I don't want other states having a chance to change Texas law, based on a similar effort.

(END AUDIO CLIP)

MELBER: Now, that statement right there is a substantive way of rebutting his own party's last-ditch effort. And it's a reference to something we have reported on the show, the federalism inherent in states respecting other states' laws.

Now, basically, when he says this is not understandable, he's being diplomatic. You could also just say the case is frivolous. It will never be understandable.

Now, one Republican who did not go to that meeting with Donald Trump is the attorney general from Georgia. We learned that Trump phoned him this very week, warning him not to rally against the Texas suit. Georgia is one of the four states whose results that Texas wants to invalidate, kind of a Republican-on-Republican civil war, the others, Pennsylvania, Michigan, and Wisconsin.

"The Washington Post" today also exposing what Donald Trump has been up to, calling individual House Republicans, arguing they should somehow join the cause, enlisting Mike Pence to call governors in the party, and eying the date in January when Congress does count electoral votes, urging Republicans to use that as some kind of final opportunity to invalidate democracy in America.

Apparently, those efforts got through to some, because now you see the specter of 100 Republican House members signing on to the briefs, to one last challenge.

Now, if you see all this taken together, those headlines, these machinations, the Supreme Court still being called into action, it would be reasonable to feel, as a news viewer, like something real is happening here.

And like so many other things in the Trump era and in 2020, it's both. Something real is happening. And it should be disturbing to anyone who cares about democracy -- I'm not talking about partisanship -- to see a major political party go this far on the record to support stealing an election. That's the real part.

The fake part, the irrelevant part, the thing that you need to keep in mind as you plan how much attention to give this, along with the rest of your life, during these times is, we have already blown past the federal deadline. And while most people may not track safe harbor deadlines and constitutional election law, you can bet attorneys general do.

They know they're in on a farce. They know this is a tweet wrapped in a press release with the garb of a court motion. They know better.

I want to bring in our experts from "The New York Time," Mara Gay and, from Defending Democracy Together, Bill Kristol.

Good evening to both of you.

Mara, your thoughts on this duality which still does matter.

MARA GAY, EDITORIAL BOARD MEMBER, "THE NEW YORK TIMES": I mean, I think that what the Pennsylvania Supreme Court said, they actually called this act by the Texas A.G. seditious, is appropriate.

I think that what we're seeing is a -- a number of courts across the country and public officials across the country doing the right thing, doing their job, standing up for democracy. But we also, in that, see just how fragile this process is.

I think the extent to which the success and survival of our democracy depends not only on voters, but we're seeing now on good public servants, is extraordinary. We're learning the names, right, of individuals who we never would have heard of before, election officials in Georgia, in Texas, in Pennsylvania.

And I think that really, really goes to show you just how fragile this process is. There's a sense of American exceptionalism in democracy. And I really think that what has happened in other places when they have lost that democracy can happen here.

I don't -- I think we're trending in the right direction, starting with the election of Joe Biden, but, hopefully, this is just the final stretch, and we can turn a new page soon.

MELBER: Bill, you warned about much of this in '16. Your issues with Donald Trump, well-documented, were not about the size of the federal government's role in education, or whether he was right or wrong about that, or whether he was consistent.

You warned about something much deeper. The group Defending Democracy, of course, speaks to that. And here we are.

Your thoughts about this very thing that concern you and seeing many people that I know, historically, in decades past, you have worked alongside with co-signing this?

BILL KRISTOL, DIRECTOR, DEFENDING DEMOCRACY TOGETHER: I mean, Donald Trump has been as bad or somewhat worse, I would say, than I feared, but the fundamental -- the important thing is that the entire Republican Party has capitulated to him repeatedly, capitulated and acquiesced and enabled.

And now, in this most extraordinary moment, when he's lost the election, when he's a lame-duck, they're enabling and excusing behavior that's actually worse, I would say, than most of what he did as president, I mean, the fundamental challenge to the election and attempt to nullify the election, incredibly ridiculous, as you said, conspiracy theories and fake legal arguments.

But it's worse. I mean, it's worse that 17 Republican attorney generals and 106 Republican House members have signed on to such obviously crazy legal theory. It just shows how far the party has gone to being a kind of autocratic, undemocratic, and maybe anti-democratic Party.

And I say this as someone who has been a Republican, was a Republican for a long time and worked in Republican administrations. And I think -- and, hopefully, Trump leaves office, then it sort of gets better, and Joe Biden's president.

But the flip side of it is, we have two major parties in this country. The Republican Party controls half the Senate, half the House, half the governorships. And that party is so much worse off in terms of basic allegiance to democratic norms than it was five years ago, or, honestly, I would even say two years ago, that I think it's very worrisome for the future of democracy.

MELBER: Whatever happened all this talk about the secret quiet opposition to Trump, the embarrassment of some Republicans that would be revealed? He lost the election. Then, oh, well, he needs this time, he needs this special snowflake time that no incumbent president has ever been granted, so that he can personally absorb this loss, and there can be all these lies and fantasy around him.

OK, then we passed that, right, with the certification, which I mention. OK, and most people don't keep track of it. But, legally, this is over. States locked it in. It's certified. The Supreme Court has no precedent, let alone interest, in coming in after the fact and trying to do that.

Indeed, it has an oath of office that's the opposite. And yet you have Republicans jumping in, going farther with the examples we just gave, Bill.

KRISTOL: And you will see House and Senate Republicans on January 6, when they accept the Electoral -- supposed to accept the Electoral College verdict, objecting. It won't go anywhere, ultimately, thank God.

But, again, it's something, if we saw this abroad -- I think Mara sort of alluded to, if we saw this abroad, we would say, well, that's a pretty rickety democracy. One of the two major parties is trying to undo a clear election result two months -- now it's a month, but it will be two months -- after the result.

And so, again, I come back to the -- Trump is out his way out and may or may not remain personally influential. The damage of Trumpism, the craziness, the conspiracy theorizing, and the fundamental lack of respect for basic democratic norms and procedures, that's deeply penetrated the Republican Party, I'm afraid.

MELBER: Yes.

And Bill lays it out, Mara, and reminds us that the spectacle is not over because, at the next inflection points, which are usually a time of unity and some sort of civility and rule of law and order, there will be, yes, these objections, this scorched-earth lies and yelling and just running roughshod over that, which, at least within the Republican Party, I don't have any hip-hop lyrics for this, Mara.

But I will go "Star Wars," when Queen Amidala said, is this how democracy dies, not to concern but to thunderous applause, to paraphrase, and I wonder if that's how a part of democracy dies, to cheering by Newsmax and way too many members of Congress, at least within the GOP.

GAY: You know, that was impressive, by the way, that reference.

(LAUGHTER)

GAY: I -- the thing that concerns me the most is really that the differences that exist in this country, when we talk about political division, they're actually not over policy at this point, or that's not really the core of them.

MELBER: Not the core.

GAY: There are plenty of policy differences.

The problem is that the differences seem to be over those who are willing to throw away democracy and human and democratic rights of their fellow Americans for sheer power. This is about power. It's about money. It's about donors and lobbyists.

And it's about the use of a very, very old, dark element in our politics, which is racism, that is being wielded to allow some to hold power in the minority. And I really think that that's what's so scary about this time.

It's not just that Donald Trump is undermining Joe Biden, right? It's that he's delegitimizing, and as are his allies, they are delegitimizing the votes of Americans who voted differently than Donald Trump supporters.

So, you're making them un-American. And let's not forget that this country has really only been a truly representative democracy in any form for a few decades. So, that history is far closer. And we don't have to look overseas to see what fascism looks like or what anti-democratic movements look like.

You can look in the American South just a few decades ago. so, I would really...

MELBER: Well, and there is a bar...

(CROSSTALK)

GAY: ... that.

MELBER: There is a bar for that, when you put it that way, Mara.

GAY: There's a bar for that?

MELBER: There's a lyric for that, the point you just made about...

GAY: There's a lyric for that? What is it? What is it?

MELBER: ... we don't need to look abroad, when we look at the American problems, is Jay Electronica. When I look in the mirror, all I see is flaws.

And, Bill, I wonder how you wrap that up, to Mara's point, that the flaws in our system are real, they're here, they're in our face. And some of the happy talk, particularly the so-called post-election happy talk -- I mean, there was a lot of -- a lot of hype around the idea that you would get through this point or that point, and things would normalize.

And I worked very hard not to exaggerate for viewers and give people a sense that every night the sky is falling. And yet, as we reported last night, with the mounting violence, as Mara's publication, "The New York Times," has been charting that, the threats, the menacing government officials, things being shut down, while it comes, this message, from the top, you can't help but see America's flaws in here.

KRISTOL: No, I mean, the violence is also very worrisome.

I mean, that 106 House Republicans, I think, signed a statement today, I don't know, maybe the most disgraceful thing, I think, signed by a large number of members of Congress since the Southern Manifesto, which was, I think, March of 1956, shortly after Brown v. Board, after the desegregation decision, when they pledged resistance to any efforts to integrate the South.

And thank -- that did -- that was a rough 10 years or more after that, right? But, luckily, that was mostly overcome. And that's now viewed as a kind of historic relic of a different era.

But I worry that this is the beginning of a very bad, very challenging stretch. And we need to hope we can overcome it much more quickly and with much less violence and damage than obviously segregation. But I just -- I'm really -- again, it's not -- Trump is, of course, the engine of this or the proximate cause.

But to -- for the party to be so willing to go along with this is really shocking. Maybe it'll diminish some when he's out of office. Maybe people will step up. It's going to require real courage and leadership, as -- if you think of the civil rights analogy, as it did from everyone, from African-Americans, to some Southern white liberals who were willing to lose elections to say the right thing, to Lyndon Johnson in 1965.

MELBER: Yes.

KRISTOL: I mean, it really is -- has to be a real focus now, I think, of efforts by all Americans who see the danger.

MELBER: Yes, very important points, Bill and Mara reminding us tonight, at a serious time, about the features of democracy and the engine of racism, both of those alive here.

Appreciate both you kicking us off.

We have our shortest break, 30 seconds.

Tonight, I have a special report on what the sanctions should be if people are trying to steal an election, including on lawyers, on activists and, yes, on government officials.

Also, later tonight, a breakdown on why Donald Trump and his cronies are now getting potentially lifesaving COVID treatment that is not available to the rest of us.

And an announcement about Dr. Fauci.

Plus, tonight, joining us on this special topic of how do we manage COVID safety and workers' rights, Tom Colicchio is here.

All that coming up. We're back in 30.

(COMMERCIAL BREAK)

MELBER: Turning to our special report right now.

All states have certified president-elect Biden's win, so there's nothing legally that could overturn that under precedent. Biden assumes office on January 20.

But the current president's weeks of defiance are gaining followers and Republican leadership, as we have been reporting tonight, these 17 state attorneys general filing a frivolous suit that makes up in bravado what it lacks in legal facts, demanding the Supreme Court somehow intervene to do something it's never done and reverse a president's loss.

There's no precedent for that to happen. And the Supreme Court has already showed where it's headed. It recently acted unanimously to dismiss even hearing arguments on these kind of Trump challenges, declining to even take a look at a lawsuit in Pennsylvania, while Trump's legal team has done far more outside the courtroom than in it, just as some of its increasingly menacing supporters in the party and out in the streets are talking up threats, not the rule of law.

So, as the nation goes through this transition, there is a wider question about whether there will be a reckoning for any of this.

Now, we do have broad free speech protections under law for a reason. Lawyers can file and assert a broad range of claims. We don't generally criminalize people saying false or even terrible things. We don't criminalize filing a losing argument in court. Indeed, again, to just think it through, any case that goes to trial will end in one side having that losing argument.

But at what point to any wider demands to toss ballots, to overturn our democracy, when does that become sanctionable, punishable or criminal? When is there accountability?

Well, with these cases that are going nowhere, we now have two branches of government in on basically trying to steal the race, one Republican congressman relaying that Trump has been asking him to contact all members, asking to join that brief we have been reporting on, that he will be anxiously awaiting the final list.

This becomes an attack on the rule of law, depending on the calendar. This is important. And let me explain.

There is a time for fighting during the campaign. There's a time for disputing when there's open legal challenges. But then an election gets certified, which it now is. Then there's no remaining active legal question. That is the point at which, under the rule of law, you do accept the results, especially if you're a member of government.

We know what this is supposed to look like because there's precedent. We are right now living through the time period, the legal turf that Al Gore was in after all of his legal challenges ended. He did the opposite of Donald Trump, even presiding over the House counting of that final Electoral College vote.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Mr. President, I am objecting to the idea that votes in Florida were not counted. And it's a sad day in America, Mr. President, when we can't find a senator to sign these objections...

(CROSSTALK)

AL GORE, FORMER VICE PRESIDENT OF THE UNITED STATES: The gentleman will suspend.

George W. Bush of the state of Texas has received for president of the United States 271 votes. Al Gore of the state of Tennessee has received 266 votes. May God bless our new president and our new vice president. And may God bless the United States of America.

(END VIDEO CLIP)

MELBER: That's what following the rule of law and respecting the outcome looked like, whether people enjoyed it or not, depending on what team you were on, a total contrast to what's happening now, from Donald Trump on down.

We see blatant defiance of this rule of law. We have attorneys now calling for the people who have been pushing this past the point of acceptable argument to be disbarred. And they cite three rules of the formal American Bar Association that they say Donald Trump's lawyers, some of them, have violated, making a false statement of material fact or law to a third person, defending a proceeding without basis in law and fact, and engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation.

Now, these are open debates. I'm not reporting tonight what the answer should be. But for those wondering, are there any potential consequences, this is one set of potential consequences. And whether or not you think these lawyers violate those professional rules, that's the question that is looking more relevant.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, ATTORNEY FOR PRESIDENT DONALD TRUMP: I know you keep reporting, falsely, that we have no evidence. But you can't say there's no evidence. This is what we call evidence.

You're cheating. That could have been Mickey Mouse. That could have been a dead person.

Once, twice, three times.

We are going to -- we're going to put Republican inspectors in pens. Give us an opportunity to prove it in court, and we will. We're going to go to court. We're going to prove it in court.

The censorship is almost as dangerous as the election fraud that we're revealing.

(END VIDEO CLIP)

MELBER: Mr. Giuliani was wrong there. And they didn't prove it in court. They lost badly and repeatedly.

The professional question of whether, beyond the loss, he continued to say outright falsehoods and deceptions in the practice of law is an open one and a serious one.

Then there's Sidney Powell, who proved to be so fact-free and conspiratorial, asserting things that could also be sanctionable if said under oath, that even President Trump began to distance himself from her.

(BEGIN AUDIO CLIP)

SIDNEY POWELL, ATTORNEY: The affidavit of the young man from Venezuela who saw Hugo Chavez create how they did the software, a system was created and how it worked to accomplish the objective for Hugo Chavez.

Mr. Kemp and the secretary of state need to go with it, because they're in on the Dominion scam. Hopefully, this week, we will -- we will get it ready to file.

QUESTION: Sidney, what's in -- go ahead.

POWELL: And it will be biblical.

(END AUDIO CLIP)

MELBER: I won't try to fact-check the biblical part. I'm not even sure what she's getting at.

But, on the Bar Association rules, there could be sanctionable conduct there. Of course, there would be a time limit to that, because, well, Trump folks got her out of their legal team.

Now, you have Rudy Giuliani today -- and this is interesting, brand-new, as part of our report -- again showing something that is a tell, that the focus is on the out-of-court action of abusing or exploiting the look and talk of a legal process, and they care more about that than any in-court evidence.

(BEGIN VIDEO CLIP)

GIULIANI: Chasing after this. You should try to get this on Newsmax and OAN, the hearings in Georgia today.

(END VIDEO CLIP)

MELBER: That's a brief look at the mentality.

Now, the consequences could live long past January 20. By some surveys, 77 percent of Republicans believe there was this kind of voter fraud that is the evidence-free basis of some of these cases.

Then there's the climate of fear, new arrests made for these threats. And you have issues with protesters, politicians and law enforcement officers, outrage among Trump loyalists that leads to actual danger.

And then a moment we have reported on that is just one of many, but that we have seen personalized all this for some observers. So, regardless of your ideology, regardless of who you voted for, if you see a public servant who is also a mother having to stop her work, the normal government business of the day, because people were menacing her front yard and potentially putting her child in danger.

(BEGIN VIDEO CLIP)

DIANA LACHIONDO, ADA COUNTY, IDAHO COMMISSIONER: Can I interrupt you for just a moment?

My 12-year-old son is home by himself right now, and there are protesters banging outside the door, OK? I'm going to go home and make sure is OK. So I will reconnect with you when I get there.

(END VIDEO CLIP)

MELBER: Now, any trespassing is obviously sanctionable as a crime, let alone potential menacing or true threats or violence.

Now, marching and speaking and even lying, I emphasize again, is generally held by our courts to be legal free speech.

So, when you talk about sanctions or consequences for what we're living through, these are not actually all easy answers. There are legal rules that protect things that, many people, that you may oppose, objectionable speech, for example. So these could be tough calls.

But there are also some lines that we know cannot be crossed without sanction in a lawful democracy, like conspiring to toss votes or cancel the results in a race or, of course, directly solicit or conspire for violence.

These are going to be important questions in any legal showdowns ahead. And some of these questions may need answers sooner, rather than later.

We are convening two experts to really dig into this on election law and beyond. That's next.

(COMMERCIAL BREAK)

MELBER: We're joined now by Paul Smith from the Campaign Legal Center, Georgetown law professor as well, and Nick Akerman, a former federal prosecutor with experience on the Watergate team.

Good evening to both you.

PAUL SMITH, MSNBC ELECTION LAW ANALYST: Hi. Good evening.

NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: How you doing?

MELBER: Nick, I start with you big picture, because we just went through many of the different issues in these plots to overturn the election results, which are unlikely in any way to have any basis in Supreme Court precedent or any future frivolous cases, as well as the larger climate around them.

You prosecuted on the Watergate team and have extensive experience at a time when there was also election shenanigans. Some of them are legal and hard to prosecute. Some of them can cross a line.

What do you see here in these fact patterns?

AKERMAN: I see they crossed the line.

I mean, clearly, the lawyers didn't go in and argue issues. They didn't go in and argue a case that was based on fact. They went in and just spewed falsehoods. And they're doing it before the Supreme Court now.

I mean, you take -- one of the worst examples is, is, they're trying to say that there was some kind of fraud because, on election night, Trump was winning and then, afterwards, he suddenly lost, when, in fact, Donald Trump had purposely gotten the legislatures in both Michigan and Pennsylvania to make the law so that you could not count absentee ballots prior to Election Day.

So, of course that was going to happen. But that was a premeditated plot that was orchestrated by Donald Trump from the White House purposely for that reason, to make it appear that somehow these votes came out of nowhere.

I mean, that really borders...

MELBER: And so, Nick, before I...

AKERMAN: Yes.

MELBER: Before I bring Paul in, what kind of sanction, and against who, would you want to pursue here?

AKERMAN: I would pursue sanctions against the lawyers. I would pursue sanctions against the client, Donald Trump. They should be paying for the court time, paying for the other lawyers. And I'd look for criminal sanctions.

I mean, I think, if you take this right back to what the whole goal here was, which was to keep Joe Biden from becoming president, they are involved in bribery, extortion with President Zelensky, that carried right in through a premeditated plan to steal the election from Joe Biden.

That was the goal of their entire scheme. And I think there's probably a viable racketeering count that could be brought against the people involved, including Donald Trump.

MELBER: Yes.

And a lot of people around the nation are wondering, how can it be that an incumbent politician can this blatantly seek to overturn the results with this much support?

And yet, Paul, as I took pains to emphasize, whether people like it or not, there are also broad protections for free speech and litigation. Walk us through your views here and why it's tricky, as an election expert.

SMITH: Well, it's certainly tricky.

I don't defend these lawsuits. We have had over 50 lawsuits that have no basis, were based on no evidence. So, they filed them for P.R. purposes and to make their client happy. And so the question is, what's the response to that?

And the thing I would say that may disappoint some people is, I think you can get the kinds of sanctions Nick was talking about, make lawyers or their clients pay the cost of litigation. That happens once in a while in litigation, civil litigation in this country. It's not all that common, even with frivolous cases.

But I don't think this is a disbarment kind of situation. The bar disciplinary proceedings use those really heavy-duty sanctions to protect clients from their own lawyers. If a lawyer steals from his client, if he has an undisclosed conflict of interest, if he repeatedly misses deadlines, so the client loses the case, those kinds of things get you disbarred.

Filing a case for P.R. purposes that makes your client happy, sadly, is not the -- this is not the first time that's happened. It's done incalculable damage to our political culture. I will give you that. And the people ought to be heavily criticized for everything that's happened, but I don't see these people losing their bar license.

MELBER: Let me show you Joe diGenova, who has worked for the Donald Trump team in various capacities in that P.R. part of it.

This is on Newsmax, which, for viewers who don't see it, this is even out much farther than, say, Hannity. Take a look.

(BEGIN AUDIO CLIP)

JOE DIGENOVA, ATTORNEY FOR DONALD TRUMP: Anybody who thinks that this election went well, like that idiot Krebs, who used to be the head of cybersecurity...

UNIDENTIFIED MALE: Oh, the guy that was on "60 Minutes" last night.

DIGENOVA: That guy is a class-A moron. He should be drawn and quartered, taken out at dawn and shot.

(END AUDIO CLIP)

MELBER: Paul?

SMITH: Well, what -- the problem with those kinds of things is what you say on television is protected by the First Amendment.

And the fact that you're a lawyer doesn't mean you lose your First Amendment rights to go on and say stuff, even when you know it's deliberately false. The Supreme Court has said in fairly recent times you have a First Amendment right to lie about having a Medal of Honor.

So this is tricky stuff when you start sanctioning people for speech in public, which is why, of course, all lawyers' speech is much more extreme and much more out there when they're not in the courtroom than it has been in the courtroom.

MELBER: I appreciate that nuance, which we wanted viewers to have.

And, Nick, I give you the last word on what is to be done if America can live through this, and except for, in the rare circumstances of the actual violence and the trespassing, all these other politicians find out there's no punishment for literally advocating to steal a race and have an authoritarian country, instead of a democratic one.

AKERMAN: No, I mean, I think that's a real problem, except, I mean, the bright spot of this is that the people that have pushed back against this, the secretary of state of Georgia, the people in Michigan, in Pennsylvania who have pushed back against this, I mean, keep in mind, it's people like that, like Judge Sirica in Watergate, who was a Republican, that broke open the Watergate case because of the sentences he meted out to the burglars.

It's people like that are out there that are standing up for our Constitution that make all the difference.

MELBER: Yes.

Nick Akerman, Paul Smith on multiple angles here, I thank both of you.

I have an update on some developing news out of the FDA, their panel of experts now formally approving massive use of the Pfizer COVID vaccine. This is an important hurdle we have all been tracking. It would help execute what they call massive distribution for a campaign across the United States.

Once the FDA signs off on this panel's recommendation, that then clears the way for vaccinations as soon as within days. An important update.

And we have more on this pandemic ahead, including Rudy Giuliani explaining why he got celebrity COVID treatment.

And, later, we're joined by "Top Chef"'s Tom Colicchio on how small businesses are in a fight for survival.

(COMMERCIAL BREAK)

MELBER: In many ways, this pandemic has been a stress test.

Over these past nine months, we have seen how, in the United States the rich and well-connected get far better care at every step of the way than everyone else.

With COVID, it can be a life-and-death difference.

Take Rudy Giuliani, who's out of the hospital today after getting COVID. Everyone wishes him a speedy recovery. But his experience also highlights the differences here. And Giuliani openly admits.

(BEGIN AUDIO CLIP)

GIULIANI: If it wasn't me, I wouldn't have been put in a hospital, frankly.

QUESTION: Really? Yes. Well, I mean...'

GIULIANI: Sometimes, when you're -- you know, you're a celebrity, they're worried, if something happens to you, they're going to examine it more carefully, and do everything right.

(END VIDEO CLIP)

MELBER: Giuliani's own experience and admission there also echoes some of the special care given to others, like Chris Christie and Ben Carson, as well as the president himself.

"The New York Times" reports all have gotten an antibody treatment in such short supply that some hospitals and states dole it out by lottery.

They get the care that -- quote, unquote -- "normal people" are not getting. And it's because of who they are and who they know.

Now, in the specific instance of a president, you could argue there are other considerations. But Donald Trump himself said that, after he got COVID, all those kind of treatments, they'd be widely available for anyone who needed them.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: They gave me Regeneron, and it was, like, unbelievable. I felt good immediately.

We have Regeneron. We have a very similar drug from Eli Lilly. We're going to work it so that you get them and you're going to get them free. And especially if you're a senior, we're going to get you in there quick. We have hundreds of thousands of doses that are just about ready.

(END VIDEO CLIP)

MELBER: There are only 278,000 doses, though, in the entire nation of those drugs cited there in that false set of promises. And it's not enough.

There are nearly as many new infections as there are those dosages you see here every day. And when Ben Carson was sick, he wrote that President Trump was following his condition, "cleared me for this special antibody therapy that he had previously received."

And Carson added, "I'm convinced it saved my life."

Again, that's fine. No one has begrudging some good care. But it's not available to everyone.

Donald Trump returned to the White House there after Walter Reed and bragged about those same special medicines.

(BEGIN VIDEO CLIP)

TRUMP: You're going to beat it. We have the best medical equipment. We have the best medicines, all developed recently. And you're going to beat it.

(END VIDEO CLIP)

MELBER: All that P.R., remember, we all lived through that. This is real life.

People could move on and say, who cares what he said? It's over. But it's just one more example that underscores the wider policy problems that we still have to fix. Americans aren't getting the best medicine. They're certainly not getting what Trump and his cronies are getting.

And while Trump got ripped off that mask at the White House balcony, a memorable scene, if there ever was one, a few miles away, in Maryland, the family of Dale Coates was grieving. The 66-year-old mother died that day. She was in the hospital. She didn't get a special antibody cocktail that Trump got or that his friends have gotten or that his connected lawyer got.

The Coates family was in mourning, because Dale's daughter Carol had also died of COVID. She was a teacher, a public servant. She was 46. Her funeral was on that same fateful day, October 5, if we want to remember what happened all these different days.

That was the day, of course, the president left Walter Reed.

Now, their heart-wrenching story first chronicled by "The Washington Post." The timing, the disparity, the comparisons, the history we continue to live out, it all shows the disparities in this separate and unequal processing of this pandemic in America.

These stories, the examples give us some texture, some little bit of something that's so hard for us to get our whole minds around when you think about what everyone's going through. You add it all up and stories, of course, they become statistics. We know that blacks and Hispanics now are three times as likely to get COVID as white Americans, African-Americans twice as likely to die from it.

The fate of Dale and Carol Coates and the 290,000 others who die of COVID is the evidence of how these injustices play out in the American health care system, injustices that make a total mockery what the president told America two days after his special treatment.

(BEGIN VIDEO CLIP)

TRUMP: I want everybody to be given the same treatment as your president, because I feel great. I feel, like, perfect.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MELBER: Continuing our reporting on some of the disparities in this year's pandemic and ordinary people getting hit the hardest.

It's not just in health care treatment. We see big corporations and many of the well-connected getting all kinds of policy breaks. There was Giuliani's celebrity-style health care, sure, but there's also the widening economic gap.

And we have news tonight on both. Now, we have reported on this a bit, a restaurant owner spotlighting how a COVID shutdown supported by L.A.'s Democratic mayor, but with different rules for different types of companies, reveals class disparities.

(BEGIN VIDEO CLIP)

ANGELA MARSDEN, OWNER, PINEAPPLE HILL SALOON & GRILL: This is my place, the Pineapple Hill Grill & Saloon.

If you go to my page, you can see all the work I did for outdoor dining, for tables being seven feet apart. And I walk into my parking lot.

This is being set up for a movie company. They have not given us money, and they have shut us down. We cannot survive. My staff cannot survive.

Look at this. Tell me that this is dangerous, but right next to me is a slap in my face. That's safe. This is safe?

(END VIDEO CLIP)

MELBER: Small businesses and families are struggling.

And an update to this from Washington. Mitch McConnell says he sees no path forward on any COVID relief bill, rejecting bipartisan attempts to get something, which means, again, when you clip these all together, there's no help for these individuals and these workers.

Now, the tech titans have added to their wealth during this pandemic at a time when, of course, virtual business is up. Financial experts say it's the big corporations that may actually be some of the only survivors when we're through this, with small businesses crushed, sometimes by COVID and the recession, but sometimes by government policies and a Senate under Republicans that won't deliver help.

We want to bring in Tom Colicchio, the chef, restauranteur and, of course, star of Bravo's "Top Chef." He's the co-founder of the Independent Restaurant Coalition, which has called on Congress to better include some of these workers and restaurants in COVID relief.

Tom, good evening. Thanks for doing this combo.

TOM COLICCHIO, CO-FOUNDER, INDEPENDENT RESTAURANT COALITION: Good evening, Ari. Happy Hanukkah.

MELBER: Happy Hanukkah.

I wish there was a little more Hanukkah Harry spirit, if you will, in the Congress, because McConnell is saying they're not going to get anything out of this. And even the thing they were looking at, you have called out as inadequate for the very disparities we just mentioned. Explain.

COLICCHIO: Right.

Well, listen, this package went from $2.4 trillion, skinny down to $908 billion. If small businesses were to get anything, it's PPP. PPP doesn't help restaurants. Restaurants are -- if you're a small business, you're impacted 20 percent, you laid off a few workers, PPP was great.

you were able to take all of that money and use it for your entire payroll. Restaurants were closed. And now we're getting closed again. So, PPP didn't work. It just became a loan. And it's going to happen again.

We need the RESTAURANTS Act pass. But, on top of that, we just need something passed. I mean, we need unemployment. We need help for people who are hungry right now. And this government is just sitting on their hands doing nothing.

And this is starting to get really desperate out here. And the problem is the uncertainty. We're trying to run a business, and the uncertainty is what's really killing us. If they tell me I have to shut down on -- New York maybe Monday indoor dining, OK. I'm OK with that.

If that's going to help health care workers, that they're not inundated with people who are sick, if that's going to actually keep people safe, I'm OK with that.

But this is exactly why we need the RESTAURANTS Act passed. The woman from California, where she was upset was, she's putting a ton of money into outdoor dining, and now she is told she can't do that.

MELBER: Right.

COLICCHIO: OK, that's another reason why we need help from the federal government.

MELBER: Well, you mentioned Angela Marsden.

And one of the responses people give is, oh, well do the safest rules possible, shut down, and then, of course, the government should help.

Well, this is real life. The government's not helping.

COLICCHIO: Right.

MELBER: It's not happening this month, according to the Senate leaders. So, then where does that leave people? And there are real trade-offs here. We want safety. We want to bend the curve. But we also want to be real about the trade-offs for people whose entire life and careers are on the line.

I want to play, since you mentioned her, a little bit more of when we spoke to Ms. Marsden. Take a look.

(BEGIN VIDEO CLIP)

MARSDEN: Small businesses, we are destitute. I mean, we're looking at something worse than the Great Depression.

It is not about politics. It's about people.

Small businesses are the heart -- we're the heart of the community. And if you pull out the heart, there's -- the body doesn't live, right?

Another thing that's very upsetting is this idea that we can all stay at home. My staff can't stay at home. I can't stay at home, if we don't eat and we can't pay our rent.

We need help. We need real help.

(END VIDEO CLIP)

MELBER: They need help. They lay it out.

I want to show you, the GoFundMe outpouring for this has been striking. Her story, of course, went viral, and she's gotten over $185,000 there to assist that small business.

That shows I guess, where many Americans' hearts are at, donating right now during a tough time for so many. And that's great. But, as she herself said in our interview, that's anecdotal based on stories that get attention.

What about state and federal policy for everyone?

COLICCHIO: Right.

Listen, Ari, estimates are that between 65 to 80 percent of all independent restaurants in this country will close without help. So, her story is being played over and over and over again. And you're not going to find enough $185,000 GoFundMe pages to take care of the hundreds of thousands of restaurants that are closing right now.

And so we're -- and then this is how shortsighted this is, because we're not asking for a handout. We're asking for a bridge to get through this pandemic, because what's going to happen? Come June, July, when 60 percent of the population is immunized and things start opening up again, I believe the economy is going to come roaring back.

There's a lot of pent-up demand right now. There's a lot of pent-up cash right now. And the economy will take off. But when that happens, if restaurants are closed, all those jobs, the 2.1 million jobs that you have up there right now, they're not coming back, because there will be no place for them to work.

And so let's talk about the human impact this has right now on people that are losing their life savings, people who aren't working, people who are forced to line up in cars for three hours waiting for food.

And then, also, let's talk about the shortsightedness of the government not making an investment in small businesses, because that's what we're asking for.

MELBER: Yes.

COLICCHIO: And this is happening all through Europe. It happened in Australia. They took care of small businesses.

And when things started to open up, those jobs came back.

MELBER: Right.

COLICCHIO: And you know what's going to happen to our economy? Our economy is going to lag behind. And Europe and other countries are going to leave us in the dust.

MELBER: Yes.

COLICCHIO: And this is because we have people who want to play politics with people's lives.

MELBER: Yes.

COLICCHIO: And perhaps the message has to happen in Georgia in May.

That's the message we need to send.

MELBER: It's really important.

You tie it back to what a lot of people have their eye on, which is who's going to control the Senate.

COLICCHIO: Yes.

MELBER: I'm only cutting us off because I got to fit in a break for Joy Reid.

We have one more thing on Dr. Fauci.

Our thanks to Tom.

And the Dr. Fauci update when we come back.

(COMMERCIAL BREAK)

MELBER: We have been reporting on a lot of different news tonight, including those disparities in health care.

But the brightest news is this FDA panel clearing the way for the COVID vaccine. That is a big deal, as we expect the FDA to clear the way for it to be handed out very soon, possibly within days, in America.

And that brings us to something very special that I want to share with you about tomorrow night's program. Dr. Anthony Fauci will be our special guest tomorrow, amidst this surging period in the COVID problem, and yet a period of hope, with the vaccine process moving forward so swiftly.

Dr. Fauci on THE BEAT tomorrow at 6:00 p.m. Eastern. Join me then, or set your DVR, if you don't want to miss Dr. Fauci. You can always DVR us on your remote right now. Search for Melber, and you won't miss any episodes of THE BEAT ever.

Thanks for joining us tonight. We will see you back here then.

Until then, stay tuned for "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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