President Trump continues his refusal to accept his defeat to president-elect Joe Biden. Former Senator Russ Feingold discusses the election. Has the Supreme Court signaled that it will uphold Obamacare?
NICOLLE WALLACE, MSNBC HOST: "THE BEAT" with my friend Ari Melber starts right now.
ARI MELBER, MSNBC HOST: Hi, Nicolle. Thank you very much.
Welcome to THE BEAT. I am Ari Melber.
And right now, tonight, here is how the president-elect just addressed the president he is replacing, as Donald Trump has avoided speaking since this weekend and has not conceded.
(BEGIN VIDEO CLIP)
JOE BIDEN (D), PRESIDENT-ELECT: I just think it's an embarrassment, quite frankly.
The only thing that -- how can I say this tactfully? I think it will not help the president's legacy.
(END VIDEO CLIP)
MELBER: A respectful and restrained tone there from the president-elect.
Today marks the first time president-elect Biden took questions from reporters. He discussed the transition, health care, COVID. And we also know world leaders like Angela Merkel, Boris Johnson and Emmanuel Macron have been doing what the current president appears unable to do, process the election results and plan for the Biden administration.
There is still only one president at a time in this country. And President Trump is using his current lawful authority to take what are basically relatively minor steps and sometimes would appear to be petty actions, like this one, in protest of this inevitability of his replacement.
The White House also delaying the daily intelligence briefing that typically go to a president-elect, delaying some transition paperwork.
But let me tell you tonight, because we follow the facts here, this is not the makings of a constitutional crisis. This is really more like poor sportsmanship. The game is over, and one team won't shake hands or face its own loss.
Now, it is also certainly not ideal, because these petty moves could hinder governing. And we also know that, even during actually contested election results, past White houses were meticulous about their transitions, the Clinton administration providing those same intelligence briefings I mentioned to Bush during the 2000 recount, when he was not president-elect, as Biden is now.
They did it in an abundance of fairness.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Even so, the Bush team will now receive more cooperation from the Clinton administration for a transition. White House Chief of Staff John Podesta tells Bush adviser Andrew Card the Texas governor's team will by next week start receiving daily intelligence briefings.
Podesta and Card also discussed starting FBI background checks for Bush appointees.
(END VIDEO CLIP)
MELBER: So, that's some of what's going on. It is certainly news in the federal government. And I have brought it to you.
But now, tonight, can we also just be real for a second? Donald Trump's actions tell the real story here. If Donald Trump really thought he won, would he be quiet for now five days and running?
If Donald Trump really thought there was some sort of actual chance for him to get to a second term, would he be sitting around right now like a bystander, privately, off the record, trying to get his family members and Republican allies to go out in public and find some reason they could explain and say why he would stay in office, after being the loser of the race, when he can't come up with that himself?
In many ways, this is a fundamentally obscure and minor exercise. And the closer you are to politics, the more obvious it is, because we track these kind of moves, like the president literally creating a venue for his ex-presidency plans, this new political action committee that will fund those future projects when he's out of the White House, or the president telling Mike Pence he can go on vacation in Florida through this weekend, which is not exactly battle mode for a second term that no longer exists.
Kicking off our special coverage tonight, we have Professor Jason Johnson, an MSNBC analyst, and Michael Cohen, who was, of course, President Trump's former lawyer. He's the author of the book "Disloyal: A Memoir: The True Story of the Former Personal Attorney to President Donald J. Trump."
Good evening to both of you.
Michael, we want to be as clear, factual and fair as always.
And so part of what...
MICHAEL COHEN, FORMER ATTORNEY/FIXER FOR DONALD TRUMP: Anyway.
So, part of what's happening here looks, as I have told viewers, relatively minor, although not ideal. Much of it is a bit of a quiet kind of backing down from what Donald Trump had implied or threatened he might do in this instance. Your view?
COHEN: So, Donald Trump is acting like a crybaby. He's like a child that just got kicked out of the candy store. And he wants what's inside, but you can't have it. It was a fair election. The election is over.
And let me just give you a little bit. And if you read the book, you will see that there are stories that aren't that dissimilar to what he's doing now. Because he lost, it feels like a loser. And that's the worst thing that Donald Trump can feel.
So, what he'd rather do is burn the house down than to hand over the keys to the house when it's taken over. And that's because he's fundamentally flawed as a human being. He doesn't have honor.
If you watched to see the way Clinton and Bush behave, it's because they have honor. If you look to see even the way Joe Biden is behaving right now as it relates to Trump and this childish behavior of his, there's an honor there. Donald Trump doesn't have honor. And that's the problem.
JASON JOHNSON, MSNBC POLITICAL CONTRIBUTOR: Yes, I mean, what you have here is all these attempts to slow an inevitable process. And this is kind of what Joe Biden was talking about earlier today.
He's like, look, once these states sort of ratify in December, and we get the electors, the Supreme Court has already said that faithless electors isn't really a thing. This job becomes Joe Biden's job on January 20. There is nothing that Donald Trump can do.
He can try and slow paperwork here and there. He can try and make this whole White House transition like going to the DMV on a Saturday morning. But, at the end of the day, some of these processes just turned over.
At some point, your key card in the office isn't going to work anymore. And so I think what is bothersome to a lot of people, with good reason, is when you have officials like Mike Pompeo saying, well, we're going to get a second transition, and when you have Mitch McConnell saying these things, I think they're just bloviating in order to make Trump feel better, because, from a legal standpoint and a practical standpoint, unless they have some intergalactic plan to change electors across six different states, this job is going to be Joe Biden's in 70 days.
And there's nothing Trump can do about it.
MELBER: Yes, Michael, this -- part of this is what is a decreasingly relevant story. But, in those 70 days, he is the president.
And you mentioned contrasting him to other people in both parties, by the way, and how they deal with this. And that came up when we had Robert De Niro on last night, who's famously clashed with the president.
Take a look at this brief exchange.
(BEGIN VIDEO CLIP)
MELBER: I said, what do we take from all the tough guys you have played, and thinking about how this is a country, a culture that celebrates toughness, but sometimes gets carried away with it, if you think about mafia movies?
ROBERT DE NIRO, ACTOR/DIRECTOR/PRODUCER: I'd like to even think, in some of those -- in all of those parts, there's a certain dignity somewhere buried in there that I don't think a person like Trump -- I know doesn't have. There's no center.
(END VIDEO CLIP)
MELBER: Michael, do you agree with Robert De Niro on that assessment?
COHEN: I wouldn't be crazy enough to argue with the Raging Bull.
COHEN: I mean, he is Robert De Niro. And he's -- the guy is spot on. You know, the guy is 100 percent spot on.
Here's the biggest problem as it relates to Trump. And everybody has to take a real chill pill on this one, because Donald Trump talks a lot of nonsense. You may remember going back to the whole birtherism, oh, I'm sending -- I have my investigators there in Hawaii. We found out -- look what we found out this. This -- it's all a lie; 99.9 percent of everything that comes out of his mouth is a lie.
He's not going to stay in the White House past January 20. They will remove him. He knows that. He also, in my opinion, is not -- after Christmas, he usually comes back January 5, January 6. He likes to go to Mar-a-Lago.
I suspect he doesn't even come back to Washington. I don't believe he's going to go to the inauguration, because he himself fundamentally cannot sit in a chair, knowing that the cameras are on him, and that the world is looking at him as a loser.
He cannot do that. He does not have enough inner strength in him in order to be gracious.
In defeat comes honor. It's the way that you lose. In chess, you put your king down when you know that you're going to lose, right? Not Trump. In the olden days, they would turn over their swords or their rifles, right, during the wars in order to give up. Not Trump.
He will pretend to fight because he has a game plan post the fight.
COHEN: As you said, it's the PAC. It's a Trump media company.
He is going to be a thorn in Joe Biden's side, unless president-elect Biden puts a stop to it right here and right now. Unless he does such a thing, Donald Trump is going to be a thorn in his side 10 times worse, with his 70, 80, 90, 100 million followers, right, by building up this social media company, because this is what he needs to do.
He needs to keep his base rallied around him. He's going to say for the next 30 years that they stole the election from me. I'm the rightful president. He's going to keep his MAGA army active and engaged, going to constantly blow this dog whistle, and he's going to be a menace.
And watch. Watch. So far, everything that I said -- 19, 20 months ago, I said before the House Oversight Committee there will never be a peaceful transition of power. And why was I able to predict that? Because I know the man.
And I hope he's watching, because I would say to him, Donald, leave. Leave with grace. Leave with honor and dignity. But he won't do that, because he's incapable. He's just fundamentally incapable. It's not his core.
MELBER: Yes, I mean, you lay it all out there. And this is important for the factual record.
Donald Trump today is still sending out many e-mails and texts to supporters. As we have been discussing, they're requesting money that they say are for lawsuits, but the money isn't going there. You need to know this. The fine print reveals 60 percent of these newly requested donations or for Save America, which is the new PAC that will fund, under the law -- these things are regulated -- the ex-presidency activities.
The other 40 percent goes right to the RNC after a donor gives over $5,000. Only then does any of the money go to what is called the recount account.
In other words, Jason...
MELBER: Go ahead.
COHEN: Ari, I'm so sorry to interrupt.
COHEN: But the reason he's doing it -- and, sorry, Jason.
The reason he's doing it is because he has no income. And you would see that if he would turn over tax returns.
COHEN: There's no income there. Right?
So he doesn't have "The Apprentice" making $65 million a year.
COHEN: Most of his assets are underperforming. They're nonperforming assets. The few that he has doesn't cover the big costs.
So, he's going to use this like he used the Trump Foundation, as a slush fund.
Sorry to interrupt.
MELBER: No, I think that was a very factual interruption.
MELBER: I will let Jason build on the same point, which is, we have never been a show that has overreacted to just Trump tweets or anything else. We will continue to keep our eye on the news and events as they occur.
As I have emphasized, he is still the sitting president.
MELBER: If he is misleading or lying about the nature of this appeals process, we need to put that out, so people understand, including, including his own supporters, Jason, who, if they watch THE BEAT today, will say, oh, wow, so, wait, the e-mail subject line said, we're out to fight these cases, but the money doesn't even go to that.
And we have seen this with Trump world in general, Ari. We saw it with the wall. People thought they were giving to a wall. They were giving to slush funds.
And here's the thing, not just that Trump has no income, but he is also potentially facing dozens of lawsuits once he is no longer president of the United States. So, to continue -- you mentioned yesterday Robert Niro.
Continue with that De Niro theme from "Heat." Like, when the heat is coming, can't have anything your life. You can't leave in 30 seconds. Trump can't leave politics, because, at this point, it's his only way of making money. He will perpetually claim that he is running for president. He will open up super PACs. He will do rallies, because that's the only way for him to make cash.
He will be defending himself legally the moment he gets out of office. And this is -- this is what I think, quite frankly, the president should probably want to avoid, from a branding perspective.
Look, I don't necessarily think he's going to end up in jail. But if he continues to play this game, and, eventually, the press is not going to care, the public's not going to care. Republicans are going to start moving along with what they need to do.
What he doesn't want is an embarrassing situation of him or someone linked to him having to be removed. He doesn't want the image of somebody coming up to the White House and their key doesn't work.
JOHNSON: And that's what he is facing if he continues in this manner.
MELBER: I got to get this in.
We went from Cohen to De Niro to Pacino to Johnson.
It wouldn't be complete without Rosie, who's also clashed with the president before -- long before he was president. But I did catch up with her today. This was just on Instagram Live spontaneously, Rosie O'Donnell.
And he's bad-mouthed her in some of the most sexist ways, likening him now, in this moment, to a caged animal. Take a look.
(BEGIN VIDEO CLIP)
ROSIE O'DONNELL, ACTRESS: I think he's in shock, and he doesn't quite know what to do. And he sees no way out. And now he's panicking like a caged animal and trying to fabricate causes for his trumped-up charges against this election and fraud.
He's a desperate man. And he's in a desperate situation. And it brings joy to millions of us.
(END VIDEO CLIP)
MELBER: Michael, your view of her assessment of him as that desperate?
COHEN: So, first of all, I have grown now to become friends with Rosie. She came to visit me while I was in Otisville. And we became -- we speak on a regular basis.
And I apologized to her. And she told me I have to stop, because I was part of that attack on her, which was really obscene and it was gross. Why I did it, again, I don't know. But...
MELBER: I'm going to now interrupt you. Michael, I'm going to interrupt you. So, it goes back and forth. That's the thing with lawyers on TV together. But this is interesting.
I mean, you're saying that, when you were behind the walls there in prison, dealing with much of what you had to deal with because of your work for Donald Trump, that Rosie O'Donnell came and visited you, and you guys bonded over all this?
COHEN: She did. She spent over six hours with me one day. She was a hit in the rec room.
Don't forget, I was in a satellite camp. Everybody loves Rosie. And everybody came over, and she was just as gracious as gracious can be.
But, Jason, I do have to disagree with you on something. I believe Trump does go to jail. And if it's not Trump, he will push one of the kids, probably Don Jr. before Ivanka.
JOHNSON: Oh, yes.
COHEN: Definitively, Eric before Ivanka. But Ivanka will go to prison before Donald, because that's just who he is.
All right? There's enough actions. Look, I'm suing Donald Trump right now and the Trump Organization. There's a plethora of litigation that's going to come. So, all of the people who probably aren't watching this show, the Republicans and the followers of Donald Trump, go ahead, give him your money, so that he now has the slush fund to use your money in order to pay for his dirty deeds.
I mean, I just don't understand what people are thinking.
MELBER: Well, I hear you on that.
And we love having everyone watch our show, including Republicans. We saw the numbers that more people watched the show last night than FOX News last night. So, I think we have got plenty of people.
And, Michael, you're here to address everyone, including, as the nation heals -- I say this in all seriousness -- what does the nation want to do in this dialogue? Something has happened. It's not over.
But if you are a person who once believed in Donald Trump, as Michael Cohen did, what do we want to do in a factual environment? Because it doesn't all have to be partisan war forever.
Michael and Jason, thank you for kicking us off tonight.
We have our shortest break, just 30 seconds.
When we come back, Mitch McConnell caught in a bind. My breakdown of a new memo from the Justice Department from Bill Barr, what it means. I'm going to show that all of you.
And some positive signs that we actually saw out of the Supreme Court on Obamacare.
Plus, we're joined tonight with another one of our special election interviews. Arianna Huffington is here.
THE BEAT continues in 30 seconds.
MELBER: Joe Biden took questions as president-elect for the first time today, and the headlines started coming right in. He called Trump's failed to concede a -- quote -- "embarrassment."
He also noted that many Republicans are falling in line with Trump because he says they're mildly intimidated, leading to scenes like this:
(BEGIN VIDEO CLIP)
QUESTION: Senator, did Vice President Biden win the election?
SEN. RICHARD SHELBY (R-AL): We don't know yet, do we?
QUESTION: Have you spoken to Vice President Biden yet?
SEN. MARSHA BLACKBURN (R-TN): I have not.
QUESTION: Do you believe he won the election?
Have you congratulated Vice President Biden yet?
SEN. RON JOHNSON (R-WI): No.
QUESTION: Why not?
JOHNSON: There's nothing to congratulate him about.
(END VIDEO CLIP)
MELBER: If you count it up, there are only actually four members of the Republican Party in the United States Senate that have publicly acknowledged the fact that Joe Biden won, that Donald Trump is the loser of this election.
There are other signs in private.
Here is Democratic Senator Chris Coons today on what he says Republican colleagues are privately telling him.
(BEGIN VIDEO CLIP)
SEN. CHRIS COONS (D-DE): I think it is time, past time for Republican leaders to stand up and say, we should accept the results of this election.
They call me to say: Congratulations. Please convey my well-wishes to the president-elect, but I can't say that publicly yet.
My job here, I think, is to continue to urge them privately to do the right thing and to help the president accept reality.
(END VIDEO CLIP)
MELBER: Accept reality.
These are strange times, to be clear.
Is the current president acting in a way that is embarrassing, as the new president-elect says today, or is there greater damage here?
We want to turn to someone who's always been an independent and straight shooter, a former member of United States Senate, Russ Feingold, Democrat from Wisconsin. He's the president of the American Constitution Society.
First of all, good evening. Thanks for being here.
FMR. SEN. RUSS FEINGOLD (D-WI): Great to be here.
And, Ari, surely, it's an embarrassment. It has the potential to be more, to be extremely damaging, depending on how people handle it. And I think that president-elect Biden is handling that beautifully by just saying, they will come around, the senators will come around, and opening the door for people to sort of be rational about this, and let the steps proceed toward the Electoral College, towards the swearing-in of a new Senate and toward the inauguration.
So, I think that's the right approach. But I do think we're in a very dangerous situation with regard to the future.
A lot of the conversation you have had on the show tonight was about the idea that Trump's finished, that he's just not accepting it. He's not actually finished. This isn't like Jimmy Carter when he loses, or George Bush I when he lost. They were done.
Even John McCain, everybody knew they couldn't run for president again. This guy is not only able to run for president yet. I guarantee you he will try.
And that is a very important dynamic for members of the Senate...
FEINGOLD: ... because they're still afraid of him. And they're afraid of what he can do to them by campaigning in their states.
That is the central reason why they're so intimidated.
MELBER: Yes, I think you lay it out very clearly.
I want to show a little bit more for viewers to see how president-elect Biden handled it today. Take a look.
(BEGIN VIDEO CLIP)
BIDEN: I think that the whole Republican Party has been put in a position, with a few notable exceptions, of being mildly intimidated by the sitting president.
QUESTION: How do you expect to work with Republicans if they won't even acknowledge you as president-elect?
BIDEN: They will.
(END VIDEO CLIP)
MELBER: A confidence there, Senator, but is there a problem in the co-equal branch of government, for the political reasons you state and others, going this long?
I mean, we're now heading towards the middle of the week. Could be weeks. Or do you view it as the vice president is projecting, as embarrassing, but not substantive?
FEINGOLD: No, I think there will be substantive damage, and there will be problems in terms of our new president and vice president being properly briefed on intelligence matters and others.
I think it can be dangerous, it can be bad. Important things can be missed. But I think, overall, the president-elect's confidence is well-placed.
These Republican senators just have to know that their lives will go on, that they don't have to kowtow to President Trump anymore. And, in fact, one thing I think people should realize -- I'm pretty sure about this, having served there back with some of these senators who are still there -- they can't stand the guy.
They never could stand the guy. They hate him. They want him gone. He ruins their experience as senator, because they have to always look over their shoulder.
Now, if they vote independently from Mitch McConnell, there's not a president there who can try to destroy their career. There is a president there who says, well, maybe I will get your vote the next time.
So the whole experience of being a senator will be much better and different with Trump gone.
FEINGOLD: And I think many of the senators, they will like that.
MELBER: And, briefly, just with the 30 seconds I have left, do you find it credible what Senator Coons relayed, that Republicans are privately telling their Democratic colleagues, hey, can you pass a note for me to Vice President Biden, I'm not crazy, I'm just afraid?
FEINGOLD: I think it's absolutely true. I bet it's on the verge -- border of being unanimous.
FEINGOLD: There are a few who are very extreme, but I think most of them just really want to turn the page.
And their fear is the future, that, in their party, they're going to have to deal with this guy and this movement. But they would like their experiences as senators to be something positive and worthwhile.
I do give them -- I do believe that's still possible.
Former United States Senator Russ Feingold, thank you very much.
Up ahead: Bill Barr has just authorized a new set of standards about voter fraud.
I have a special legal breakdown. I'm going to tell you what about this matters and why it will not change the election results. I'm going to go through all the law right after this.
MELBER: And now to our legal breakdown.
The 2020 campaign ended with Attorney General Barr largely backing down. His much-hyped Russia report never came out, despite his now false claims on FOX News that it would arrive by Election Day. Barr also failed to back up his claims about voter fraud by mail, a reminder that, just as in the Mueller era, Barr was more about messaging than evidence.
(BEGIN VIDEO CLIP)
WILLIAM BARR, U.S. ATTORNEY GENERAL: The special counsel found no collusion, did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government.
WOLF BLITZER, CNN: As far as widespread fraud, we haven't seen that since...
BARR: Well, we haven't had the kind of widespread use of mail-in ballots that's being proposed.
(END VIDEO CLIP)
MELBER: Today, Attorney General Barr out with a new memo that tweaks DOJ policy on when voter fraud claims and irregularities can be probed.
It tells prosecutors they don't have to wait until elections are certified if there are credible allegations to investigate. The memo doesn't change much, as I will explain.
But the very act of trying to intervene and change the DOJ's election policy at all has Barr under fire, the head of the elections crimes unit resigning in protest over this move, and contracting his own past recognition for integrity on the job to this move in the resignation letter.
Now, independent experts are condemning Barr today. And it's certainly striking to see the highest posts inside the DOJ's elections unit resigning to object to Barr, to lay down this marker, which also, of course, echoes that Russia probe I mentioned.
Recall that a top aide to the DOJ prosecutor leading it also resigned in protest. And roughly 2,000 DOJ veterans from both parties have protested Barr and demand that he resign over repeated political meddling.
So, there's a track record here for Bill Barr's ploys.
But can any of this new memo change this race's outcome?
No. The game's over. Joe Biden is the winner. Donald Trump is the loser. Those are the results of the election. There's not a single case pending in the nation that can change that result, as we have reported.
Now, tonight, I get it. Some may ask, OK, Ari, but is the attorney general now doing something that could create such a case to challenge the outcome?
And I'm reporting that answer to you drawn from Bill Barr's new memo itself, for two reasons. First, this memo states that the DOJ can only start these reviews earlier if there are clear voting irregularities that would change the outcome of a federal election.
And Barr emphasizes, if irregularities would not, would not change the outcome, then those are still delayed until after the election certification process is complete.
Translation: Most probes will wait, unless there's evidence that could change the entire election result. But, as we have known for days from all those big board updates, Joe Biden's victory margins are greater than the number of allegedly challenged ballots in any of these key states.
So, this memo makes no difference to that.
And now finally to the second reason this doesn't change things. The metal may offer Donald Trump a brief sugar high today of some of the headlines he wants about fraud or investigations, just as Barr did in spinning the Mueller report.
But this new Barr memo does not even claim they found any fraud. In fact, Bill Barr in the new memo writes the opposite.
Now, if you're hearing less about this part of the facts tonight, that may be because Barr knows how to play the media and Twitter and get people salivating over words like fraud.
But hasn't the Trump era taught everyone that the full truth does require more than overreacting to a few spicy words on Twitter? Come on, you guys. Let's just go to the actual source. Barr's new memo states, the DOJ has not concluded that voting irregularities have impacted the outcome of any election.
And he ends the memo with the fair-sounding language that, actually, we could hear Barr reading to some congressional probe in the future Biden administration, because Barr proclaims that -- quote -- "This is up to the nonpartisan DOJ staff," not to him. He tells the prosecutors -- quote -- "I trust you to exercise great care and judgment. Specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries."
So, that just passes the buck to these prosecutors, while discouraging any specious or hyped-up voter fraud claims or cases.
I mean, when you just look at it -- I'm just reading the memo to you. I'm not doing anything special here. You see that, despite the tweets or the headlines, this is weaker than weak sauce. This is legally irrelevant.
Now, viewers of this program know that we sometimes report the news with some choice rap lyrics. But I got to tell you tonight, Bill Barr's memo is so weak, it is so soft, it does not even merit association with any hard hip-hop lyrics. It's just too soft for that.
Now, as the Trump administration ends and the Barr era DOJ ends, you can sum up this final messaging memo from the attorney general with a point, courtesy of Joe Jonas and Demi Lovato. No matter what song you sing, this wouldn't change a thing.
No, this wouldn't change a thing.
And when even Bill Barr is focused on covering himself more than fighting on for Trump, you know it's really over.
Up ahead, we have the great Joyce Vance with us today for this Supreme Court hearing on Obamacare today and why many people see a coalition to defend it.
And tonight, later on THE BEAT, our special election interview with Arianna Huffington.
MELBER: There's a lot going on, but did you know that the Supreme Court took up Obamacare oral arguments again today?
Donald Trump had basically pushed for this case. They want to dismantle the entire law, which could leave over 21 million people without health care, but two justices who happen to be Republican appointees shedding light on where they're headed. Take a look.
(BEGIN AUDIO CLIP)
BRETT KAVANAUGH, U.S. SUPREME COURT ASSOCIATE JUSTICE: This is a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.
JOHN ROBERTS, CHIEF JUSTICE OF THE U.S. SUPREME COURT: It's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down, when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.
(END AUDIO CLIP)
MELBER: Experts say there's a suggestion now of at least five votes that would uphold most of Obamacare, based on these oral arguments.
The court can always do whatever it chooses.
We want to bring in former U.S. attorney Joyce Vance for perspective on all this.
Nice to see you.
I think viewers have heard people like you and me say, well, you don't always know where the court is headed from oral arguments. And yet, today, it seems like we knew more than usual.
I'm curious what you think.
JOYCE VANCE, MSNBC CONTRIBUTOR: I agree. This was an unusual argument.
One wonders if the context of the pandemic had anything to do with it. With so many people newly vulnerable, maybe the court was delivering an early signal, although that's not typically their practice.
But two justices here hinted that they would vote to strike down the individual mandate, but retain most of the Affordable Care Act, pretty unusual.
I want to play a little bit of Justice Alito as well. Again, people know we get -- we get the sound, and it's pretty interesting to go through it. Take a listen.
(BEGIN AUDIO CLIP)
SAMUEL ALITO, ASSOCIATE JUSTICE, U.S. SUPREME COURT: At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying.
But now the part has been taken out, and the plane has not crashed.
(END AUDIO CLIP)
MELBER: It struck me as a really fair jurisprudential point.
We're so used to looking at everything politically. The whole show tonight has been about political things. But I have just played now three different justices who happened to be Republican appointees.
Alito is making the observation that, even if, at one point in time, some people might have thought the way the law was structured, the thing you needed depended on the whole -- the whole structure, that now the plane is still flying without it, so we're all good.
VANCE: I'm not sure if I would think that Justice Alito would join a majority here. It's pretty hard to read this that strongly.
But, in 2010, when the Affordable Care Act was first argued in the Supreme Court, DOJ's position really centered on the individual mandate and said that that was central to the Affordable Care Act functioning. They really wanted to make sure that every American had to participate in part of the health care program.
And, ironically, Ari, Don Verrilli, who was the solicitor general who argued that case in 2010, was back today arguing for Congress, but this time saying that the individual mandate could be severed, that it could be completely cut out of the Affordable Care Act...
VANCE: ... and, as Justice Alito said, that the plane would continue to fly.
So, I think Justice Alito may have been digging at him a little bit for that change in position.
MELBER: And do you think, though -- I'm over on time, but you basically think Justice Alito was discussing a reasonable argument for severability, while he may not ultimately be a vote for it?
VANCE: I think that's right.
Congress came back in 2017 and amended the act. They took out the penalty for the individual mandate, which is why we're back in court. But it also implies that there is severability.
VANCE: Who knows? Maybe this decision will be more of a consensus.
MELBER: Really interesting.
I feel better informed, having gotten your view of the oral arguments, Joyce. Thanks, as always, for being here.
VANCE: Thanks, Ari.
MELBER: Appreciate you.
When we come back, something we're very excited about, inside how Donald Trump became the loser of this race, as a technical matter.
The great political journalist Arianna Huffington -- when we return.
MELBER: Tonight, people are continuing to take it all it.
The voters did reject President Trump, and they overwhelmingly chose Biden on a national basis. Indeed, Joe Biden has the most votes for any candidate ever, the largest popular vote percentage of a candidate challenging an incumbent since Ronald Reagan back in '80.
Those are facts. And we bring you all of them.
Here's another fact if you want to understand where the nation's at. Donald Trump still got the second most votes ever, topping 71 million, a majority of white voters, as we have explained in our reporting.
And there are many who are concerned about what this all means.
So, tonight, where does this leave America, a majority clearly choosing the outcome we're living through, a president-elect Biden, and a huge number of people continuing to stand by Donald Trump after everything he did in the last four years?
We turn out to someone who has been at the intersection of politics, news and culture and a major force and innovator in media, Arianna Huffington, co-founder of The Huffington Post, the founder and CEO of Thrive Global.
So excited to talk to you about all this. Thanks for being here tonight.
ARIANNA HUFFINGTON, FOUNDER AND CEO, THRIVE GLOBAL: And you too, Ari. So great to see you, even though we are virtual. Really great. Love what you're doing.
MELBER: Oh, thank you.
We are virtual. Not only do you look great, of course. Your background has -- is almost giving me White House vibes with the yellow drapes.
MELBER: Big picture, first and foremost. Your view of what America has said in this election?
HUFFINGTON: Well, as you said at the beginning, America has said two things.
One, the dominant was that they're ready for renewal and that millions are ready for healing, which was the theme that the president-elect sounded in his speech on Saturday.
But, at the same time, as you said, there were 70 million people who still voted for Trump, and Democrats and the whole country need to understand why. And there is a lot to be said about how the people who are left behind, the people that we're now calling essential workers, front-line workers, a lot of people who are not part of the success economy and are not just disenfranchised economically, but also in terms of dignity and worth.
I just wrote about a couple of very good books that came out on the subject, Michael Sandel from Harvard on the tyranny of meritocracy, and David Goodhart on "Head Hand Heart."
You know, here are a lot of jobs here which are not cognitive, which involve our hearts in the caring professions or our hands. And going back to Martin Luther King, a lot of leaders in the country spoke about the importance for respect and dignity, as well as income equality for those people.
MELBER: It's so important, particularly because what you're speaking to is something we have seen around the world, if we want to broaden out beyond Trump and America, which is what happens to populism or the perversion of populism?
Why have we seen so many leaders that, yes, they may traffic in bigotry -- and that is not to be minimized -- but they also position themselves as the voice of groups of people who are left behind by, as you put it, a global or cognitive economy?
What does it say to you, then, that Trumpism still seems to be doing well among those people, which, in its aspirations, the Democratic Party wants to appeal to?
HUFFINGTON: It's exactly what you said. There's a tremendous amount of grievance, resentments.
And, like all populists, Trump has been feeding on those. But we have an opportunity to change that. I mean, the most important thing about the Biden message, beyond the specific policies, beyond the crucial Coronavirus Task Force, is the fact that he wants to appeal to our better angels, and not our lesser selves, and that he recognizes that we all have a mixture of both, and that the people we disagree with are not our enemies. They're our opponents.
This is a profound message. And, Ari, at this moment, when, of course, those who lost may not be as ready for healing as those who won, those who won need to actually keep emphasizing healing, even when a lot is happening that is absolutely preposterous, even when a lot is...
MELBER: Although -- yes, but it does cut both ways, because some of those who lost aren't even acknowledging the fact that they lost, which is not just the normal...
MELBER: ... the normal thing.
HUFFINGTON: That's what I'm saying.
It would be very easy for those who won, for those who voted for Joe Biden to kind of be reluctant to accept the message of healing because of what the other side is doing. When you have Pompeo and Barr and Lindsey Graham and Ted Cruz sounding as though they really believe what the president is saying about massive fraud, it's harder.
But what I'm saying is that it's essential...
HUFFINGTON: ... that we keep up that message...
HUFFINGTON: ... that the president-elect sounded.
MELBER: Now, Arianna, I can say this because I have known you for a little while. You may have some catlike qualities, because you have had north of nine lives when it comes to your careers.
And you have navigated the cultural and political landscape in really interesting ways. And you're an entrepreneur as well.
And so I want to play a little bit of FOX News here, because you have been in and around this. You're not just at some great distance, given some of your lives.
And there's a concern that the modern conservative movement is not just ideological, which is perfectly legitimate, but that, at times, some of its leaders are counterfactual. And we're seeing some stress over that this week, with the president saying falsehoods, but he's soon to be the ex-president.
Take a look at some -- some of FOX News this week.
(BEGIN VIDEO CLIP)
KAYLEIGH MCENANY, WHITE HOUSE PRESS SECRETARY: We want every legal vote to be counted. And we want every illegal vote...
NEIL CAVUTO, FOX NEWS: Whoa, whoa, whoa.
I just think we have to be very clear. She's charging that the other side is welcoming fraud and welcoming illegal voting. Unless she has more details to back that up, I can't in good countenance continue showing you this.
TUCKER CARLSON, FOX NEWS: The fraud that we can confirm does not seem to be enough to alter the election results. We should be honest and tell you that.
(END VIDEO CLIP)
MELBER: If this is also a time for reckoning, how important is it for people with platforms and leaders to be honest about the facts, apart from the other ideologies? Your view.
HUFFINGTON: Incredibly important and, frankly, pretty stunning that FOX analysts and FOX reporters are actually doing what you just showed us.
I mean, that would not have happened in the last four years. And the fact that, even though people were predicting that FOX reporters would refuse to call Biden president-elect, that never happened.
I actually obsessively, I have to tell you, Ari, watched FOX News on Saturday, because I was so interested about what they would do.
And it was completely straightforward. And you had Dana Perino being kind of almost emotional about the fact that we had a woman, and a black woman, vice president-elect. So, that is significant.
I hope it continues. But, if FOX News stops kind of going along with the president's fraudulent claims of fraud, that will be significant, the same way "The New York Post" having the front page saying, "It's Joe Time."
Maybe Rupert Murdoch has issued a directive.
HUFFINGTON: But, whatever is happening, it's good news.
MELBER: Well, the issue at "The New York Post" -- I'm out of time -- is you never know whether they're doing it for the facts or just a really good pun.
HUFFINGTON: As long as the facts are the facts, it doesn't matter why they're doing it.
MELBER: All right. There you go.
Arianna, I love getting you on THE BEAT. I know you're busy. I hope you will come back, because we'd love to have you again.
HUFFINGTON: Would love that. Thank you so much, Ari.
MELBER: Thank you very much.
We're going to fit in a break, but, still ahead, we're going to show you some of how the late-night hosts have been giving people the truth they need and dealing with Trump's refusal to concede.
MELBER: Trump has certainly given the late-night comics plenty of material.
They have all been looking into his epic loss.
(BEGIN VIDEO CLIP)
SETH MEYERS, HOST, "LATE NIGHT WITH SETH MEYERS": Well, our long national acid trip is almost over, and now it's time to pop a Klonopin and let our designated driver take us home.
STEPHEN COLBERT, HOST, "THE LATE SHOW WITH STEPHEN COLBERT": Never a good sign when the majority of Americans react to you losing your job the way they did to us getting bin Laden.
JIMMY KIMMEL, HOST, "JIMMY KIMMEL LIVE": It took almost the whole four years, but Donald Trump finally got a massive crowd to cheer him outside the White House. Congratulations to him.
What a weekend it was.
(CHEERING AND APPLAUSE)
JIMMY FALLON, HOST, "THE TONIGHT SHOW": Trump's staff told him people were dancing in the streets because Red Lobster brought back crab cracking Mondays.
(END VIDEO CLIP)
MELBER: As the saying goes, laugh now, cry later, if you need to.
That does it for THE BEAT WITH ARI MELBER. You can always find me @AriMelber.
"THE REIDOUT WITH JOY REID" starts now.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.END
Content and programming copyright 2020 MSNBC. ALL RIGHTS RESERVED. Copyright 2020 ASC Services II Media, LLC. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of ASC Services II Media, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.