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Transcript: The Beat with Ari Melber, October 20, 2020

Guests: Melissa Murray, Mary Trump, Daniella Gibbs Leger, Tom Bonier, Mark Thompson, Stephen Breyer, Joe Crowley


Mary Trump, niece of President Trump, discusses the presidential race. Supreme Court Justice Stephen Breyer speaks out. Barack Obama is set to begin campaigning for Joe Biden. The Supreme Court delivers a ruling that may significantly impact the presidential election.


NICOLLE WALLACE, MSNBC HOST: Thank you so much for letting us into your homes during these truly extraordinary times. We're really, really grateful that you do.

"THE BEAT" with my friend Ari Melber starts right now.

Hi, Ari.

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

And welcome to THE BEAT. I am Ari Melber. And thanks for joining us two weeks out from the Election Day, with record-breaking turnout already making this literally a campaign like no other.

Donald Trump in Pennsylvania today, where he's roughly deadlocked with Joe Biden in several polls. Now, if this race did track past precedent, today would actually be more like three days out than 14, based on just how many people are already voting right now.

And that matters, because it means that many voters are not looking for more information or more rallies or more ads. They're just voting. And that has political consequences that may be bad news for Donald Trump, if he's hoping to make this week's debate the turning point that he needs.

Tens of millions of people are voting before he gets a chance to pivot from his widely panned performance last time, when Trump broke so many rules that the news today is the commission is now adding a mute button for part of Thursday's debate, a clear effort to sanction Trump for some of that loud and very unpopular constant rule-breaking.

But Donald Trump's documented problems do not mean -- and this is important to keep in mind -- that his message is failing to get out at all. Reputable news outlets, for example, have been quite skeptical of the unverified story pushed by Rudy Giuliani attacking the Bidens.

I'm not going to repeat its claims right now, because they haven't been verified and they're not newsworthy. But, as a political matter, people should understand that brand-new data shows it is still one of the most discussed stories of the week across Facebook, which is, of course, all of America, a reminder that political dirt can certainly move fast online, even when it's not getting as much journalistic airplay.

And that's another reason that the Biden campaign keeps telling voters to fight for every last vote, regardless of the documented signs, including in the early vote, that he has a real lead.

Now, we are seeing signs that the early vote is working well for Biden. Look at this pretty remarkable footage, Biden pushing early and mail voting more than Trump, and you can see people are coming out. This is the scene in Wisconsin, where early voting in-person begins, with lines so long, we had to speed up our coverage to even show you them in a reasonable amount of time.

Or take Arizona, where we also have interesting footage of long, long traffic jams, sped up as people come in and out, in and out all day to drop off their ballots by car, which is pretty safe for a pandemic.

Now, what do those early ballots actually tell us about the emerging electorate? Well, as we have been doing around here -- and I'm thrilled to tell you, because it's going to be, we think, super interesting -- we have brand-new numbers tonight with an election guru who sifts through all of this stuff and is going to give us just the cream, just the highlights.

That's going to be a few minutes into this segment.

But we begin right now on the politics with our leadoff experts.

We have Joe Crowley, who served as a Democratic congressman and member of Speaker Pelosi's leadership team, and Daniella Gibbs Leger from the Center for American Progress.

Good evening to both of you.


FMR. REP. JOE CROWLEY (D-NY): Great to be back with you.

MELBER: Great to have you.

Congressman, I start with you.

You have had that title. You have been in and out of races. You have won many. You lost one here or there. And so you know both sides. I say that just because it's interesting. Everyone watches on the outside.

Can you tell us what it feels like for a candidate like Donald Trump two weeks out where the metrics do show and the internal hard conversations are about if things keep going like this, you lose? It doesn't mean you automatically lose, because things can change.

But just what does that do? How does that feel inside the war room of the campaign? And what does that tell us about the two weeks ahead?

CROWLEY: Well, I think, Ari, a couple of things.

One is, if these numbers hold up, I mean, this is a staggering numbers, if this -- if this continues, and I think it will. I have no reason to believe it won't continue. I think it's staggering numbers against Donald Trump.

And he's got to be really -- he's flailing already. You can see how he's attacking Kristen Welker, you know, she's partisan, she's this, she's that, almost like setting up the debate for failure, that it's already going to be a failure for him because it wasn't fair.

So, I mean, this is par for the course for Donald Trump. I would -- really, putting aside Trump, how about the people around him, all the people who have to listen to him flailing at this point, because he's losing? He knows he's losing. He doesn't like to lose.

MELBER: Right.

CROWLEY: He doesn't like to lose. And he knows he's losing.

And that's got to be incredibly frustrating to him.

MELBER: Daniella?

GIBBS: Yes, I think the next couple of weeks are going to be awful for all of us who follow politics very closely, because he is desperate, and he is going to do every dirty trick that he can think of to try and sway this election his way.

And I just said on Twitter that I will not forgive the people from electing this giant man baby to be our president. And that's exactly how he's acting right now, except he also has his finger on the nuclear code.

So, he's got big mountain to overcome in terms of the advantage that Joe Biden has right now. But I would just say -- and I'm sure the Biden campaign would agree with me -- if you want Joe Biden to be president, you better vote and tell your friends to vote like he is two to three points down in the polls.



GIBBS: Do not, you know, get complacent.

MELBER: Right.

And it's funny, because, as we know, especially in politics, Congressman, everyone has skepticism. So anything anybody says, a candidate says, we're still down, we need you to vote, and some people, even their own supporters, say, yes, but you're not really down, that's a political messaging, i.e., not 100 percent accurate.

And yet all the numbers we have actually speak to the truth of that, which is, when I report somebody is up right now, right, that's not an election result. That's just really interesting early data. And then you have the sprint to the end.

Donald Trump has been recycling some of what he did last cycle, and it almost feels -- I'm curious your view -- I want to play this you -- like the things that he said as a hypothetical in '16, for whatever reason, worked more for some of his supporters than now, because he caught the car, right? He is the president. He runs the government.

So a lot of this fantasy football talk, not even withstanding the authoritarian problems, which we have also scrutinized on the program, just doesn't really wash the same way. Take a look at him here two weeks out trying to gin it all up again with Bill Barr. Take a look.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We have got to get the attorney general. He's got to act. And he's got to act fast. He's got to appoint somebody.

This is major corruption. And this has to be known about before the election.


MELBER: Congressman?

CROWLEY: Well, you saw the same thing play out with similar characters who are also reappearing, in Rudy Giuliani, for instance.


CROWLEY: Two weeks before the last election in 2016, Rudy Giuliani shows up, and he has some secret information that's going to be released. Just wait and see.

I mean, Rudy Giuliani has really turned out to be this creepy, secretive, dark person. Look, the reality is that that's how the president has performed. He's calling on -- he's using all the tools of government. I mean, it's so obnoxious, so obscene to see him actually pushing the Justice Department to go after his political enemies.

It is something I have never seen before in my life. People have been waiting since November 9 of 2016 to vote against the spirit for just this very reason. And that's why we see such an amazing turnout right now, I think.

MELBER: Yes. And I appreciate your emphasis on the substance, which we have, of course, done a lot on the program.

And, Daniella, let's be clear. What I just played is worse than much of what was on the Nixon tapes that ousted Richard Nixon, right?


MELBER: And here we are four years into it, and it's being played out. I mean, it is legally unconstitutional abuse of power request, right in the strike zone of an impeachment or however you would adjudicate that.

So, that, we have done. And that's important to keep in mind.

But the other part is, does this count as an October surprise, if it is just a streaming rerun of "Friends" from season six that everyone has seen three times? I mean, you just -- you know it. You know what's going on with Ross and Monica. You have seen the episode probably more than once.

And, at a certain point, you say, oh, the October surprise is a ginned-up story about Hunter Biden that was the subject of your own impeachment, and Rudy Giuliani running around and getting de-credentialed off social media platforms as a liar.

I think I have seen this. Is it even a surprise, Daniella?

GIBBS: No, of course it's not a surprise.

It is the playbook that he's been using since he ran the first time starting in 2015. The difference is, as you said earlier, is, it's not working, it's not sticking, because he has a record that he has to actually run on.

And we are in the middle of a pandemic. I am talking to you from my basement, hoping that my toddler doesn't come downstairs wearing joggers underneath his very nice shirt because we're home because of COVID, because he could not deal with this pandemic.

And people are angry. And people are willing to stand up in line and walk over hot coals to vote this man out. So, he can try to pull all this B.S. that he's done before. But, at the end of the day, he's been president for the last four years.

And you have to ask yourself, are you better off now than you were four years ago?

MELBER: And, Congressman, when Daniella says she's in her basement, you know what she's getting at? She's implying, started from the bottom, now we here.


CROWLEY: Well you seem like (AUDIO GAP) Ari, I don't know. So we might have the jam a little bit here before we're done.

But, look, I think the only date that matters, as you know, the only poll that matters is November 3.


CROWLEY: And let's not leave anything behind.

He's flailing. But we have to get that vote and continue to do that, I think, to see Joe Biden and Kamala Harris elected. And I think that's what we have to really keep in mind.

MELBER: Yes, hear you. I hear both of you on that.

Joe Crowley, Daniella Gibbs Leger, thank you.

Our segment continues, as promised, with this other stuff I wanted to present to you tonight, really interesting, new details on this voting that's under way.

We do know more about this electorate than at any point in any election in history. And that includes the emerging coalitions in these battleground states, which traditionally decide the election.

Turnout way up in the 14 key battlegrounds, from roughly six million early votes at this point last cycle to now topping 17 million. Now, who makes up this wider pool of voters? We have new data on the Democratic surge tonight.

And what it does, what we're about to show you, will fact-check some of Donald Trump's false claims.


D. TRUMP: So, the votes are coming in, and they're very much inclined to be with us. I don't know if you see, you know, early voting, because our people like to go out, like, and vote, right? They like to vote.


D. TRUMP: They like to vote. And it's incredible what's happening. So the early votes are coming in, in a lot of areas, and they're starting to get a little bit nervous on the other side.


MELBER: Trump saying the other side gets a little bit nervous.

Well, only the candidates know if they feel nervous, but the numbers show Democrats have more to celebrate right now. We're looking at these swing states, not traditionally blue ones, so it's striking to see a blue edge of over a million votes for Democrats in the early voting there.

Now, that shows Democrats banking a lead. But what if those are just traditional Democratic voters coming out earlier because of the pandemic? That's a fair empirical question.

The goal in any campaign, of course, is to get more votes, not just move them earlier. And that's where another key piece of data comes in showing Democrats turning out more new voters, people who didn't vote in 2016, taking this edge here of about 400,000 votes so far.

Joining me right now is Tom Bonier. He runs TargetSmart, a political data company, which has partnered with NBC to bring each of the data sets we just showed you and many more, and Mark Thompson back with us, host of the "Make It Plain" podcast.

Good to see you both.


MARK THOMPSON, "MAKE IT PLAIN": Good to see you, too. Thank you,

MELBER: Tom, I think, by now, anyone who follows politics understands there's a surge of turnout. And a lot of folks have a broad idea of why that may be good for Biden.

Walk us through specifically these deeper numbers you have on who the new voters are and what that means.

TOM BONIER, CEO, TARGETSMART: It's really remarkable what we're seeing in this surge in turnout, because it really across the board sort of traditional Democratic (AUDIO GAP) the numbers from a partisan perspective, that, when we look at the demographic (AUDIO GAP) the younger voter (AUDIO GAP) we see voters of color, we see women putting massive margins in, the likes of which we have never seen in an election before.

The interesting part of this is, the other side of the equation is, we're actually seeing seniors surging in key states like Florida and Arizona, and the data that we have seen in terms of who those seniors are actually more likely to be Democratic.

MELBER: So, why is it advantage Biden? Do you -- can you tell, is it part of the turnout efforts or just a larger, kind of organic, if you will, coalition?

BONIER: Well, look, I there was a big question as this pandemic took hold in this country in terms of where turnout would end up, and whether or not the Democratic intensity would be there on Election Day.


BONIER: And so, clearly, we have seen this data where we have seen turnout surpassing all records, as you showed, I mean, tripling the numbers we saw four years ago, that, clearly, the Democratic intensity is there.

Part of that's organic. A big part of that is efforted by the campaign going out and communicating with these voters and turning them out. That said, a vote cast on the first day of early vote casts the same as a vote -- counts the same as the vote cast on Election Day, right?

So, in the end, they have to go right through the Election Day, as you said a moment ago.

MELBER: Yes, all really important points.

And we're rooted, again, in votes. We're not talking about polling right now. We're actually talking about what we're learning about this long-running -- as I have emphasized, this is not election night, not election week. It's election weeks. And it's begun. And we're seeing the shape of the electorate.

And, Mark, some of it overlaps with things that you have talked about on this very program for months, including a lot of your advocacy about the different voting blocs that need to stand up and be counted and fight for your right to vote.

So, I want to present a little bit more for both the panelists, bringing Mark in.

The Biden campaign psyched about these new numbers, two million more women now voting than men. That's a key part of any potential winning Biden coalition. As for black voters, always critical to the Democratic base, they saw about 750,000 early votes at this point in '16, now approaching two million.

Those numbers matter, especially in the three states that decided the last election, where high turnout usually yields a Democratic win. Now, take a look at Pennsylvania, Michigan, and Wisconsin, where Trump eked out that narrow 70,000-some-vote edge, in Pennsylvania, Democrats outpacing R's 3-1, 600,000 votes to about 221,000.

Wisconsin, they're up about 100,000 so far, and Michigan, Democrats ahead by about 100,000 votes.

Mark, your view of what this tells us about a year when many civil rights advocates and others say racism itself is on the ballot?

THOMPSON: It certainly is.

And thank you again for having me, Ari.

Great work by both of you in terms of this story and Tom's research.

This does bode well for Joe Biden. It's good news, especially early voting, because that's letting us know that people are heeding the call to get out early, especially in this pandemic.

I'm sure it helps when people see all of the long lines just for early voting, so imagine what November 3 could end up being like. And I'm sure people don't want to be in that position and staying in long lines at the lead -- on the last day of voting.

Mail-in ballots as well, for the states that receive mail-in ballots now, they will count them now, as opposed to after November 3. The reason that's important is that that will help to undermine whatever chaos the Trump campaign has planned for the night of November 3.

We know they're going to try to pull off some drama. We know they're probably going to try to take all 50 states to court. So this is good news. Women and African-Americans especially, they're absolutely key to the Biden coalition, women because, as we know, some of them went for Trump last time. African-American women have always been Democratic, but some white women went for Trump.

So there's that. And then their lives, women's lives existentially on the ballot with Amy Coney Barrett as a nominee, if you're talking about COVID, ACA, plus Roe.

And then, for African-Americans, also very important, especially at this moment, when we have characters like Ice Cube trying to cause division and confusion in terms of African-Americans, particularly black men.

And, lastly, whenever African-Americans, whenever we have felt the tinge of voter suppression, a little bit or a lot -- we will go back to 2012 -- that's what brought African-American voters out in 2012 in record numbers to reelect Barack Obama.

Voter suppression is very much alive today. The Trump administration has been fostering it. And the one thing you can do to get African-Americans to get out and vote in record numbers is to threaten their right to vote in the first place.

So, all of this should make a difference.

No time to rest, though. I mean, people still need to get out and vote. Don't take any of this for granted. But these are good signs.

MELBER: Tom, if minority and female turnout stays this high, can Trump win?

BONIER: Well, he will find himself in a hole that will be very difficult to climb out of on Election Day.

We're seeing massive deficits already. And the early vote will potentially triple from where we are now, or close to it, potentially over 90 million early votes cast. And so if this deficit continues to grow, he's going to be in a very deep hole on Election Day. He will have a very hard time.

MELBER: Tom, I suspect you're going to be very busy with us with all your work. So, we will be coming back to you.

Tom Bonier, Mark Thompson, thanks to both of you.

THOMPSON: Thank you.

MELBER: Coming up in just 30 seconds, we have tonight my take on a Supreme Court decision that could actually change the outcome of this election.

Big news about Obama's first rally for Biden.

But, first, Mary Trump is back live on THE BEAT. That's when we return in just 30 seconds.


MELBER: Fourteen days out from the election, and we are joined by Mary Trump, the president's niece and the author of "Too Much and Never Enough: How My Family Created the World's Most Dangerous Man."

Mary, thanks for coming back on THE BEAT.


MELBER: These are important times.

When you see Donald Trump out there in public right now, which Donald Trump do you see, facing so many political headwinds?

M. TRUMP: I see the guy who knows that he's in a lot of trouble, and is trying, as is his wont, to brazen his way through it.

I also, by the way, see a person who's supposed to be leading this nation through a health crisis continuing to put other people at risk. And it's really tough for me to get over that one.

But, other than that, I think we see somebody who's quite desperate, and we should be worried about that.

MELBER: Money is so important to him in his image. And incumbent presidents have a lot of advantages, and they did raise a lot of money.

It is a striking, and I think, at times, even underreported fact, because there's so much else that's important going on, that this incumbent president, obsessed with money, has overseen a team -- he's not the only one running the campaign -- where they have blown through $10 million on a Super Bowl ad before they had a challenger.

The legal fees on the impeachment was a drain that was related to his own conduct, $39 million routed in a very swampy way to the former campaign manager's own lucrative companies.

When you see this, given your longstanding knowledge of Donald Trump, your uncle's obsession with money, but also problems holding onto it, what do you see here? What does it reveal?

M. TRUMP: It reveals what a lot of us have known all along. He's absolutely terrible at business. He cannot manage money.

But, remember, he's never had to be able to. He's never had to learn that particular skill, because there's always been somebody to bail him out, starting with -- especially with my grandfather, who, over the course of my grandfather's life, funneled in excess of $410 million Donald's way, which Donald, of course, squandered.

And then the banks were standing in line, and then NBC, through "The Apprentice," and now we know that he's in debt for an excess of $400 million to people that -- who have yet to be identified.

So it's not surprising. It's -- and it's not just that they're spending money in wildly irresponsible ways. It's the really odd choices they're making. They're spending money, too much money, but they're also spending it in places where it's not going to help them.

I think, a few weeks ago, they spent money in D.C. to counter a Lincoln Project ad. And D.C., first of all, it has, I think, three electoral votes. And, secondly, there's nothing that could happen in the this universe that would make D.C. vote for Donald Trump.

So it's just strategically reckless and nonsensical. And it's wildly irresponsible. But it's totally in keeping with Donald's history with both money and strategy.

MELBER: Again, it's striking, with you giving us that history lesson, because so many Trump fans sort of automatically take it as a given or a general matter that he's good at this, when the numbers don't add that up, just like someone who was proud of their financial standing would be able to share their tax returns, as most candidates in both parties do.

So it just sort of a factual reminder.

We're going into this debate. Trump needs, politically, more out of it than Biden. And there has been, of course, a big national conversation about, what do you even do when someone who happens to be the sitting president just violates, flatly, the rules for the full 90 minutes after agreeing to the rules?

Because then you need more sanction than you otherwise would.

M. TRUMP: Yes.

MELBER: And then there's been the challenge on moderators in that environment.

And we have got a little bit of a comparison of two of them. Take a look.


D. TRUMP: I just don't know about QAnon.


D. TRUMP: This is a very tricky...

GUTHRIE: They didn't say that. I know that study.

So this is a little bit of a dodge.

Well, the word is false.

He didn't say it, or you don't remember?

He's not an infectious disease expert.

But the promise was repeal and replace.

So you have changed your position on this?

CHRIS WALLACE, MODERATOR: gentlemen, we're now into open discussion.



D. TRUMP: You would have been much later, Joe. Much later.

C. WALLACE: Mr. President.


C. WALLACE: Sir, let me ask my question.

Please let him speak, Mr. President.

BIDEN: Number two...

D. TRUMP: You just lost the left.

C. WALLACE: I hate to raise my voice...

D. TRUMP: He's on tape...


C. WALLACE: But it seems to me, why shouldn't I be different than the two of you?


MELBER: Apologies to anyone who's less in the mood to watch the debate now after just a sampling.

But do you glean anything from that, given that you have been around him and his rhetorical overwhelming bulldozer nature, and the challenge that poses even to people who, again -- no shade -- people who do this for a living and are decent at it, but have found themselves struggling?

M. TRUMP: First of all, it's exhausting. It always has been. But he's taking it up to 11 at this point.

I think the moderator issue is an extension of a problem that we have been experiencing for a really long time. People need to stop treating Donald like he's normal, that he's going to abide by the rules or care at all about behaving decently.

He doesn't. We cannot treat him like a normal candidate on a debate stage.

But, beyond that, what people need to understand about what's going on here is, Donald is interrupting -- first of all, I think he's desperate, but he goes in to a debate or town hall specifically with this tactic in his pocket, because he knows that getting into a substantive policy discussion is disastrous for him.

His entire administration has been a failure from beginning to end. What could he possibly say about policy that will be to his benefit? Nothing, as far as I can see. So he needs to interrupt. He needs to be rude. He needs to talk over other people.

And he needs to change the subject in -- no matter how irrelevantly he does it.

MELBER: I think you just nailed it in a way that I think sometimes does escape some of the professionals.

It's like, gosh, really unpleasant arguing about the bill. Why would anyone want anything that unpleasant? Well, if that's the alternative to paying the bill, and you're $400 million...

M. TRUMP: That's right.

MELBER: ... in debt, you would rather argue about it.

So, you sort of remind us, this is that simple.

Mary Trump, will you stay with me? I got one more thing I want to get into with you.

M. TRUMP: Yes, absolutely.

MELBER: Great.

We're going to keep Mary Trump, which is interesting.

We're going to fit in a break.

I should mention, later in the show, we're also going to have an update on the Supreme Court ruling I just mentioned, brand-new keys to what could happen in a contested election, huge implications.

We have that and Mary Trump coming up right after this break.


MELBER: We are back with Mary Trump.

And something else that we have been sort of diligently pursuing here through our reporting and our interviews is something specific to Donald Trump, which is, in the cycle of lying, frauds and cons, it's different than other traditional politicians.

For one thing, the opening promises are far grander than what politicians in either party even make. I mean, another country is going to fund something. Sounds good, right? If you could actually get Mexico to fund U.S. education or Social Security, right, sounds like an idea. It just didn't happen over four years.

And so some people notice that and feel that he's tricked them, just like the old Trump University students, which we have been exploring in our program, and other people kind of move on from it.

With that in mind, I want to look at the way this was warned, even in the Republican primary, with people who loved Trump so much, they spent money to go to the classes, and then found out later they felt he was defrauding them. Take a look.


D. TRUMP: At Trump University, we teach success. That's what it's all about, success. It's going to happen to you.

If you're going to achieve anything, you have to take action. And action is what Trump University is all about. Above all, it's about how to become successful.

UNIDENTIFIED FEMALE: The plaintiffs against you are like the Madoff victims.

D. TRUMP: Oh, give me -- give me a break.

UNIDENTIFIED FEMALE: And the -- this is what the court of appeals said.

They found that victims of con artists often sing the praises of their victimizers, until they realize they have been fleeced.


MELBER: Conned victims, loyal, until they're not.

Do you see any parallels there to this election cycle?

M. TRUMP: Yes, I think we're starting to see some movement on the right, elected Republicans trying to distance themselves. It's fairly muted at this point.

So, I think that that is something we're going to see more of. But it's different in kind, because people who invested in Donald, believed in him as potential students or contractors were deceived by him. They were defrauded by him.

Elected Republicans were all in eyes wide open. So, I'm sorry. They cannot think that, at the 11th hour, they can decide to distance themselves and get rid of all responsibility for the horrors we have been subjected to the last three-and-a-half years.

They are just as responsible, in some cases, even more responsible, than Donald is for the state this country is in. And if they abandon him at the end, well, good, because that will make it easier for us to prevail in November. And by us, I mean, people who actually care about this country and want to heal the wounds that have been inflicted on us.

But they need to be held accountable, just as Donald does.

MELBER: Yes, interesting perspective on all that, particularly given the history and how people ended up in that bind.

Mary Trump, always good to see you here 14 days out.

The book is "Too Much and Never Enough."

Ahead on THE BEAT: Barack Obama out on the campaign trail for Joe Biden, his first actual rally. We're getting new details on that.

But I want you to stick around with us, because I have a special take on a brand-new decision out of the Supreme Court. You may not have heard about it yet. They just deadlocked 4-4. This could affect the outcome of the election.

And we have a special guest on it when we come back.


MELBER: Major news out of the Supreme Court.

When it comes to deciding tough issues in the 2020 race, this court, I can report you now for the first time, is officially currently deadlocked.

Now, this is exactly what many legal experts feared, the high court unable to find any wider consensus heading into a potentially polarizing race with a president openly talking about illegally holding onto power.

But here we are. Republicans asked the Supreme Court to limit counting mail ballots that were cast on time, but arrive after Election Day, this in a key state, Pennsylvania. And the court has now deadlocked 4-4 on the matter, meaning they couldn't find any way to reach a wider consensus, even with Chief Justice Roberts joining the Democratic appointees to allow those additional votes to be counted.

Now legally, a tie basically goes to the runner, in this case, the decision as it stood in a lower court.

So, what does this mean? Well, number one, it's a win for Pennsylvania Democrats in the short term, but the case is not formally over. If a 2020 election did hinge on this issue, this could go back to the court.

And now we know what we didn't know before, which is the current breakdown here, Democratic appointees and Chief Justice Roberts on one side signaling they back a legal approach that basically errs on the side of trying to count every vote and using time to do it, while the other Republican appointees signaling they would be potentially fine with doing limiting here, with not counting certain votes.

Now, this 4-4 draw could change, of course, as Senate Republicans appear to have the votes to confirm Trump appointee Amy Coney Barrett next week, which means she would, of course, be a fifth vote on this very kind of case.

And everyone knows how pivotal a fifth vote can be in a contested election.


TOM BROKAW, NBC NEWS ANCHOR: The U.S. Supreme Court has just released his ruling, and one of the most important decisions that will make it in its modern history.

CHARLES BIERBAUER, CNN: Let's work through this as carefully as we can. But let me get to the bottom line here. The judgment of the Supreme Court of Florida is reversed.

PETER JENNINGS, ABC NEWS: The Supreme Court of the United States has reversed the orders of the Florida Supreme Court on a very narrow majority, five justices to four.

BRIAN WILLIAMS, MSNBC HOST: A de facto court victory tonight for George W. Bush. The counting in Florida, by order of the U.S. Supreme Court, is over.


MELBER: That's what it sounds like when there's that key fifth vote, which in 2000 decided the race.

Now, this year Trump's proclaimed that his judges should be politically loyal to him.

That's not how the Constitution works. That is actually more of a thug mentality, not unlike Rick Ross' famous explanation for why he is so calm in court -- quote -- "I run the game just by running with the felons, walking in the courtroom, sipping on a beverage. I know the judge, so I got a lot of leverage."

Well, Trump does know this judge. Whether he knows how she would rule when it comes to voting rights, well, that's still anyone's guess.

We're joined now by NYU Law Professor Melissa Murray.

Good to see you.


MELBER: I think it is fair to say that Donald Trump does have a Rick Ross mentality, which is thuggish, that, if you have the right people in place, and you think they owe you or they're your friends, you don't have anything to worry about.

I'm curious, given the very seriousness of this, whether you think Trump is right to count on Barrett to be a potentially partisan vote, and what you see as the stakes in what looks to me like a pretty big case here.

MURRAY: Well, I certainly hope not.

And I think the person who really hopes that that's not the case is Chief Justice John Roberts, who has gone on record to say that there's no such thing as Trump judges, no such thing as Obama judges, just federal judges doing their level best to decide these disputes as fairly as possible and to apply the law as fairly as possible.

I think you have a situation here where the chief justice is likely incredibly worried that the court has already been bogged down by charges of partisanship, and this kind of dispute only makes it more likely, as we go into the election, that the court will become a flash point in what is going to be a very polarizing election.

MELBER: Whether this kind of case comes back to the court from Pennsylvania or a similar state if there is an open or contested result in November, does this mean that, if Barrett joins that bloc that I identified of those other four, they could stop the counting and throw out mail ballots that otherwise were postmarked on time?

MURRAY: Well, it's very clear that there are four justices on the conservative wing who would have been ready to decide this to reverse the Pennsylvania Supreme Court, to allow those ballots to be counted only if they were received by Election Day.

If you had a fifth justice who was willing to join them, they would have had a majority, and that would have been the end of it. And, of course, the worry is that by the time the election actually is under way, by the time of Election Day, there will be a fully staffed nine-person court, and it will not only be a nine-person court. It will be a port with six justices who were appointed by conservative presidents.

And there's the worry that, if that is the case, you will have that necessary fifth vote. This is why so many people were pressing Judge Barrett last week about whether or not she would be willing to recuse herself if any kind of election-related dispute arose.

The president has already made it clear that he is adamant that the court be fully staffed at nine people in order to decide any election disputes. And the question is whether or not she would be the determinative vote.

She did not commit herself in either direction last week, and was very clear that, regardless of who appointed her, she would take each case as it came before, and she refused to say whether she would be inclined to recuse.

MELBER: Right.

And very important that, while she is documented a superconservative, whether she is a more partisan or less partisan person, the way Justice Roberts, who's also very conservative, has proven to be different, is anyone's guess.

But seeing this 4-4 thing, this is huge, potentially huge, if it comes down to that narrow of a result in November.

Professor Murray, always appreciate coming to class with you.

MURRAY: Thanks. Always appreciate the Rick Ross references.


MELBER: Boss, as it were.

Good to see you, Professor.

MURRAY: As it were.

MELBER: Now we have a break, but we have something very special here, speaking of the Supreme Court.

We haven't aired this yet, brand-new, my interview with Justice Stephen Breyer on the court, not something you see every day. I'm going to show you some special highlights.

Also, the update on Barack Obama hitting the trail for Biden with details -- when we return.


MELBER: The United States Senate is about to shape the future the Supreme Court in potentially a tie-breaking vote for any contested election with this vote on whether to confirm Trump nominee Judge Barrett to join the High Court.

Confirmation hearings, of course, are a rare time when judges are questioned, since they're usually the ones doing the questioning.

But, occasionally, even sitting justices do take questions in other forums. So, while this rarely happens on live TV, we have something new and special on this front for you right now, my new interview with current Supreme Court Justice Stephen Breyer, first appointed by President Clinton in 1994.

So, we're going to show you a couple highlights airing right now for the first time.

I asked Breyer about his warning the court should not overturn established precedent, what lawyers call stare decisis, and whether he was intentionally citing abortion cases when warning about that, and whether he's concerned the court may overturn Roe v. Wade.


MELBER: When we read a case like this, and we see you cite Planned Parenthood v. Casey, and people may take from that or want to take from that it's the warning about substance, about issues on abortion, is that the right way to read that precedent?

Or could you have cited any number of cases regarding stare decisis?

STEPHEN BREYER, U.S. SUPREME COURT ASSOCIATE JUSTICE: What's in the judge's mind doesn't really matter?

What matters are the words on the paper. And it's important for the judge not to forget that, because it's those words on the paper that will be the guide to the future.


MELBER: Justice Breyer cautioning against going beyond those words in the ruling.

Now, as Trump calls for loyalty, Breyer also noted how judges can end up teaching presidents a thing or two about independence.


BREYER: It may be a political process that leads to the nomination of a judge. And a president may think, ah, I have got someone who will always agree with me. That's what Teddy Roosevelt thought when he appointed Oliver Wendell Holmes. He got him nominated.

On the court, in three months, Holmes decided something Roosevelt couldn't stand. Roosevelt said: "I could carve a judge with more backbone out of a banana."

He was furious. But Holmes was doing his job.

MELBER: Do you think every president comes to learn that?

BREYER: Yes, I do.


MELBER: Yes, learn it.

Now, I had to ask Breyer about how the court can be the last word in contested elections. And while he, of course, follow the rules avoiding any comment on a future case, he did reflect on the peaceful transfer of power in 2000.


BREYER: When I talk to students about this, some say, well -- I say, look, there were no -- I heard Senator Reid say in respect to Bush v. Gore, the most remarkable thing is, there were no riots being.

There are at least 30 percent of you in this audience, because it's a young audience, who think too bad there weren't a few riots. That decision was wrong.

I understand what you're thinking. But before you come to that as a final conclusion, I would like you to turn on your television set and see what happens in countries who resolve their differences that way.


MELBER: Something to think about.

Now, there's this intense passion about how the Republican Senate hijacked Obama's court nominee. And that's one reason why Trump's now on pace to put a record-breaking three justices on this court in a single term.

Well, Justice Breyer did not address the politics there, of course, but he did make a wider point, that the politicians don't just reflect all citizens, but rather the ones who participate.

And he recommends everyone who cares, go get involved.


BREYER: The senators are going to reflect what you want, so you better stop it.

And the way you stop it is, when you disagree with somebody, you talk to them about it. You talk to them about it. You try to convince them. You participate. You vote, and you do it yourself.


MELBER: Engage. Participate. Vote. Pretty good advice, with early voting now under way, and a fitting final word.

I want to send our special thanks both to Justice Breyer and the Edward M. Kennedy Institute for the United States Senate.

You can watch the entire longer discussion -- those were excerpts -- by going online to

Now, we have one more thing, as promised, the update on Obama getting out on the road for Joe Biden -- when we come back.


MELBER: Barack Obama is out on the airwaves tonight across several battleground states making the case for Democratic candidates for the Senate, including in places like South Carolina and Michigan.


BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: I want to talk to you about the stakes in this election. You could also determine which party controls the Senate.

I'm proud to endorse Sara Gideon, Jaime Harrison, Reverend Raphael Warnock. And I hope you will vote for my friend Gary Peters.

Make sure, if Joe Biden wins, he will have a Senate ready to work with him.


MELBER: Shows how Democrats are looking at down-ballot races.

And Obama is a key asset here, not just within the party. He has an approval rating of 58 percent, which shows you, in a divisive time, that's much higher than Trump, but also higher than his former running mate, Joe Biden.

Now, tomorrow, Obama hits Philadelphia to campaign for Joe Biden. It will be a drive-in rally. We're going to have full coverage of that event tomorrow.

So, if you think about it, tomorrow is going to be a pretty interesting day in politics, between that, Obama out there for the first time in this big way, and a ramp-up, of course, to the debate that everyone has been getting ready for. A lot of excitement about that debate this week.

And I want to tell you one more thing. If you have been keeping up with us during this busy campaign season here on THE BEAT WITH ARI MELBER, you can always DVR THE BEAT right now on your remote. You press the cable home page. You search for Melber -- M-E-L-B-E-R. You press DVR for this show.

And we love that, because then, no matter what time you get home or what you're up to, you can always catch up on any episodes of THE BEAT. DVR debate, if you want. We welcome you to do that.

Now, that does it for us. I will be back here with you tomorrow night at 6:00 p.m. Eastern.



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