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Transcript: The Last Word with Lawrence O'Donnell, 10/28/21

Guests: Norm Ornstein, Paul Butler, Jimmy Vielkind, Marty Walsh, Colin Allred


Interview with Labor Secretary Marty Walsh. Interview with Rep. Colin Allred (D-TX); NBC News is reporting tonight that the House Select Committee investigating the attack on the Capitol on January 6th will subpoena attorney John Eastman who wrote the false legal memo that Donald Trump tried to use to convince Vice President Mike Pence to try to steal the presidential election from Joe Biden. Today the sheriff's office in Albany County, New York filed a criminal complaint against former New York Governor Andrew Cuomo accusing him of the misdemeanor of forcible touching.



And so, the billionaires' tax. It turns out the owners of sports teams did very well in the framework of the actual bill released today. They went from the framework to the real bill, legislative language, 1,680 pages I believe. Almost the last 200 of those pages are the tax provisions where I spent my day.

And so, the billionaires' tax is out. It did not make the cut. But the tax on short stops and quarterbacks, that's in there. They have created these new tax brackets that I have been begging for for decades now. A new tax bracket that kicks in at $10 million of income. That's going to get a lot of short stops.

And then the Tom Brady tax kicks in at $20 million of income. It's an additional, basically 5 percent at $10 million of income and then over $20 million of income another 3 percent.

So they're getting at some of the super rich that way, movie stars, people who get this money through salaries. They're going to get hit, but the investment banker class and others who managed to get their income in something other than direct salary income, they may find ways around this.

RACHEL MADDOW, MSNBC HOST, "TRMS": Right. The people who still have, you know, are sitting on billions of dollars in assets but report that each year they made like 40 grand, because that's all they want to pay taxes on. Those people will always find ways around, at least so far they have not been captured, but, yeah. I mean, also if you only try to tax billionaires, you are aiming at like, what is it, 600 or 700 people. You're trying to tax people who have $10 million in income in a year. It's a significantly larger group, which potentially gives them more lobbying power but also means it is a much bigger target.

O'DONNELL: It is a bigger target. But the billionaires, you know, they were having a good night last night and turns out they're having a good night again tonight. Just something about billionaires. They manage to have good nights I think every night is it? Yeah. It's every night.

MADDOW: I was just going to say when is the last time billionaires didn't have a good night especially talking about government policy. When President Biden gave his remarks today I thought the single line that stuck out to me the most was when he said, you know, every time I can remember, every time that I know of that the middle class did well the very wealthy can great. But right now the very wealthy are doing great and the middle class are getting screwed.

It works, like if the middle class do well, it's not like rich people don't do well. It's not like it gets zero summed out of them. It never goes that way. If you build policy that affects the middle class, you help everybody in the whole country. And if all we do is make sure the billionaires never pay anything then every day is a good day for them but everybody else, meh.

O'DONNELL: Well, short stops and quarterbacks, they are -- they are going to have a whole new tax return.

MADDOW: Fantastic. Thank you, Lawrence.

O'DONNELL: Thank you, Rachel.

It was a day of good news and bad news for Democrats depending on which Democrat you're talking about. The good news for all Democrats is that Joe Biden announced a breakthrough in his negotiations with congressional Democrats on the outlines of a legislative package that immediately got the full support of all the Democrats in the House of representatives even though the total spending in that bill was negotiated down to $1.7 trillion and that's down from the $3.5 trillion in the budget resolution that was passed by both Houses of Congress earlier this year.

When the details of that package emerged later in the day, in the almost 1,700 pages of legislative language, progressive Democrats in the House had given up a lot, an awful lot in reaching that compromise top line number of $1.7 trillion.


In a speech at the White House, this morning, the president described what it took to reach that compromise.


JOE BIDEN, PRESIDENT OF THE UNITED STATES: Today, I'm pleased to announce that after -- after months of tough and thoughtful negotiations I think we have an historic, I know we have an historic economic framework. I want to thank my colleagues in the Congress for their leadership. We spent hours and hours over months and months working on this.

No one got everything they wanted including me. But that's what compromise is. That's consensus. And that's what I ran on.

I've long said compromise and consensus are the only way to get things done in a democracy, important things done for the country. I know it's hard. I know how deeply people feel about the things that they fight for. But this framework includes historic investments in our nation and in our people. Any single element of this framework would fundamentally be viewed as a fundamental change in America. Taken together, they are truly consequential.


O'DONNELL: The president then boarded Air Force One for a trip to Rome to attend the G20 summit meeting and to meet with the pope. President Biden was hoping to get a phone call on Air Force One from House Speaker Nancy Pelosi telling him that half of his package passed the House today. That call never came.

Instead, Speaker Pelosi was forced to retreat from her plan for the House to vote on the bipartisan infrastructure bill that passed the Senate in August. President Biden went to the House of Representatives first thing in morning at 9:00 a.m. for a closed door session with all house Democrats in which he hoped to rally them to pass that infrastructure bill today.

According to sources familiar with what was said at the meeting, President Biden told House Democrats, quote, the House and Senate majorities and my presidency will be determined by what happens in the next week.

The president was hoping that the infrastructure bill would be passed today by the House of representatives so that he could have a bill signing ceremony as soon as he returns from Europe while the house and Senate would then be completing the series of votes necessary to pass the $1.75 trillion bill under the reconciliation rules that allows the Democrats to pass the bill in the Senate with a simple majority vote.

A group of about 30 progressives in the House were threatening to not vote for the infrastructure bill, a bill that they are in favor of. They are in favor of that bill but they are saying they would not vote for it until they saw the text of the $1.75 trillion bill and just after Air Force One took off, the House Rules Committee released the text of that bill with a page count of 1,684.

And Speaker Pelosi at her 2:00 p.m. press conference said this.


REP. NANCY PELOSI (D-CA), SPEAKER OF THE HOUSE: So those who said I want to see text, the text is there, for you to review, for you to complain about, for you to add to, to subtract from, whatever it is. We'll see what consensus emerges from that.


O'DONNELL: The clear consensus that emerged from that text was 99 percent. 99 percent of the Democrats in Congress support that text. But two senators were vague about supporting that text even though they both appeared to get virtually everything they wanted in that bill. Senator Joe Manchin said this.


SEN. JOE MANCHIN (D-WV): I think it's in the hands of the House right now and I've been dealing in good faith, and I'm telling everybody, they can count on me to continue to deal in good faith.


O'DONNELL: Unfortunately for Joe Manchin, not enough Democrats in the House accept his professions of good faith, and Senator Kyrsten Sinema who is trusted by exactly no Democrats in the House or Senate said something that sounded positive but was much too vague for the 30 or so House progressives who needed to hear a specific promise to vote for the bill.

Instead, Senator Sinema said, in writing: We have made significant progress on the proposed budget reconciliation package. I look forward to getting this done.

As of 2:00 p.m. this afternoon, Speaker Pelosi was still hoping to get a vote on the bipartisan infrastructure bill that passed the Senate.


PELOSI: A once in a century chance to rebuild the infrastructure that has been -- passed the Senate a while back. Roads, privileges, water systems crumbling.


Some water systems a hundred years -- our colleagues talked about their own experiences in their communities some made of bricks and wood. That is a nice mortar system. Electric grid is vulnerable to catastrophic outages which you have seen and decades of under investment have taken a devastating toll on the safety of our infrastructure.

There is absolutely no question the most expensive maintenance is no maintenance. And that's where we are in many cases. It's about jobs, jobs, jobs.

Over the life of this bill 7.5 million jobs just in this. If you take it with the other bill, it would be more like 20 million jobs over the ten- year period.


O'DONNELL: At the end of the day, the most progressive speaker of the House in history was blocked by the most progressive caucus in history.

Congressman Jayapal, the leader of the Progressive Caucus, said, let us make sure that everybody is on board and we will pass both bills together. By everybody, she, of course, means those two senators who remain vague about their support for this bill.

Tonight, Congresswoman Jayapal told Rachel Maddow that she now trusts Joe Biden has secured the votes of Senator Manchin and Sinema.


REP. PRAMILA JAYAPAL (D-WA): I am trusting the president when he says he has 50 votes in the Senate. Plus, I've spoken to Senator Sinema. I will circle back with Senator Manchin.


O'DONNELL: Leading off our discussion tonight is Joe Biden's labor secretary, Marty Walsh.

Thank you very much for joining us tonight, Mr. Secretary. Really appreciate it.

MARTY WALSH, LABOR SECRETARY: Thank you, Lawrence. Thanks for having me tonight.

O'DONNELL: So the president was hoping for a bill signing ceremony on the infrastructure bill. You didn't get that vote today.

What is the president's next expectation? He didn't get the vote today. What does he want now from the Congress?

WALSH: I think the president said today he would like to see this bill pass, if I heard correctly in his words within a week. I think there's plenty of opportunity for us to get this bill, these two bills passed. Today was a day in the process of a democratic process, and certainly we had good progress today. I look at it that way.

We have two bills now. We know exactly what they are. We know the investment we made in the American people. We know the investment made in housing and child care and in adults and job training.

We already know very clearly on the physical infrastructure, the roads, bridges, waterways. So, now, we have a few more days to go and hopefully get this thing teed up pretty soon and get the final vote so we can start making investments in the American people, unprecedented investments that we've never seen.

O'DONNELL: Senator Sinema opposed the tack proposals in the original version of this legislation. I've read the tax proposals here. It doesn't take long to read them. Certainly Senator Sinema has read the tax proposals by now.

Has she communicated with the White House and president that she supports the tax proposals in the new, written version of the legislation?

WALSH: I don't have any knowledge of that. I have not had a conversation with the White House in a couple hours now. We've been in constant communication all day. I've been on the phone all day talking to people.

I started my morning in Philadelphia on the phone. I did a lot of visits in Philadelphia today and other parts of Pennsylvania. I'm in Baltimore right now. We'll be back on the phones in the morning. I'm not sure exactly what the senator's feelings are on the tax proposals.

But again, the president was very clear when these bills were passed, they would not be paid by the average American. He would increase taxes and move taxes on the people that can afford to pay more taxes and he kept his word and that's what we're doing.

O'DONNELL: So at this point this is about nothing other than two votes. We've heard from Pramila Jayapal that the progressive Caucus which compromised a lot and by compromised I mean gave up a lot as you know to the point where they are accepting a number basically set by Joe Manchin, $1.75 trillion. That is up from $1.5 trillion where he started with Senator Schumer.

What can you tell us about those two votes? That is what is stopping both pieces of this legislation at this point.

WALSH: I think as we said the president feels confident that he will get the votes in both the House and the Senate. He certainly is confident about the negotiations going on and I think that when you think about where the bill started and where it came to it is in negotiation and that's what the legislative process is all about.

Regardless of what people might not have got fully in this bill, it is still an incredible investment in the American people.


I mean, we can't say this is a disappointing bill, $1.75 trillion in infrastructure of people we've never seen that before in this country, in the history of this country. Also, in the other bipartisan bill the infrastructure bill, the infrastructure bill, the bipartisan infrastructure bill, again, we haven't seen that type of investment.

I think it is time for us now, what I'm looking forward to is getting the bills passed, getting the investments to the Department of Labor, job training money here, and getting it out in the streets so we can get Americans working and skilled up in good paying jobs. The intention behind these bills the president has said from the beginning and I believe it in my heart as well is about rebuilding the middle class, allowing opportunities.

We have child tax credits to these bills. It's going to allow families for another year to get additional revenue for their families, to get kids out of poverty. I think it is over 20 million young people, families out of poverty. That's really what we have to do.

We have to start now building infrastructure of this country. When I saw infrastructure I don't mean just bridges and roads but all of the infrastructure in this country.

O'DONNELL: The speaker stressed the jobs aspects of both of these bills. It is easy for people to envision the jobs component of an infrastructure bill. You're going to put construction workers to work. You're going to put people to work out there repairing bridges, laying pavement. That is a very easy thing to envision.

But she indicated there are actually more jobs in the -- what is called the, being referred to now as the social infrastructure bill.

WALSH: Yeah, and there is. There is job training money. We have tens of billions of dollars that we're going to be able to invest in the American people all across this country to retrain them and allow them opportunities and actually open up new industries.

There is going to be apprentice programs that we're going to be able to do in this country. There's going to be job training, re-entry program for folks incarcerated to get them into the community so they are not reoffending and back in prison. We have a real opportunity on a social level to make a tremendous impact here in the United States of America and it is long overdue and it's time for doing it now.

As mayor of Boston, I was able to do some in my city and we saw the benefits of it. And I think that other cities and towns across this country are looking for the same type of investment.

O'DONNELL: So, are you expecting that next week the House will take up and pass the bill that was just released today in legislative language today, pass that before they take up the infrastructure bill?

WALSH: I'm not sure. I'm encouraged by this process, encouraged about where we are headed. We have two bills now that it seems we have lots of support on the Democratic side. Hopefully, we'll be able to get Republican votes as well. We have a bipartisan infrastructure bill that was passed already where we had supports from both sides of the aisle.

President Biden has spent a lot of time and he said it from the very beginning working to get these two bills passed to make sure everyone has a say. Many people have had their say and now we have an opportunity hopefully next week. I don't know what the legislative schedule is and I am not a member of the Congress or Senate, so I don't want to say we'll have a bill next week because that is not my lane. My lane is secretary of labor and to advocate on behalf of the American people and push as much as we can get for the American workers in our country.

O'DONNELL: Secretary of Labor Marty Walsh, thank you very much for starting our discussion tonight. Really appreciate it.

WALSH: Thank you, Lawrence.

O'DONNELL: Thank you.

And joining us now is Democratic Congressman Colin Allred of Texas. He's a member of the House Transportation and Infrastructure Committee.

It was supposed to be a big day for your committee in the House today, Representative Allred.

What was your -- what was your expectation of what was going to happen today at 9:00 a.m. when the president walked in the door? Where did it feel like the day was going to go?

REP. COLIN ALLRED (D-TX): Well, of course, I thought we might have a vote today on the bipartisan infrastructure deal. That is not the way it worked out. I am very optimistic by the end of next week we will have both of these bills passed. That's something, honestly, Lawrence, I don't know that I could have said that this morning. When the president came to speak with us, I think he laid out what was in the package he has been negotiating with basically the two senators you mentioned the last couple months and how important it is for his presidency but also for our democracy.

You and I have talked about this before. It is critically important that we show we can still get things done. I think we are still on track to do that. The big goal is still within reach.

O'DONNELL: So, as of now, we know nothing about what the two senators are thinking. These rewrites at this stage of the legislation are all for those two senators and for no one else. And we don't even know what they're thinking.

So we don't know if Senator Sinema is okay with this new version of the tax proposal.


She's had trouble with the other one.

Joe Manchin was okay with the original version of the tax proposal. But we don't know anything more about Joe Manchin tonight either.

ALLRED: Yeah. Well, you know, the White House has been in constant negotiation with these two folks. I can give everyone at home a little confidence that we have more insight into what they're thinking than maybe the press does. I am not party to all of those conversations but I have had some discussions with the White House around it and they are confident.

And the president is putting his credibility behind the idea that as he told us this morning, he now has 50 senators onboard with the framework he laid out for us. I trust the president of the United States. I trust our speaker to deliver this. And I think these two senators are going to be there in the end. There's been months of negotiations as you said to meet them where they are. I can't see any reason now why they would pull out.

O'DONNELL: So, what is your understanding of the sequence next week?

ALLRED: Yeah. Well, they're probably going to have to go together or at least in very rapid secession. I think with what came out today we are on track to do just that. And let me just say, Lawrence, there's been a lot of discussion about the process here but this is a really important bill and it is historic investment in American families. It is going to give us the tools to combat climate change. It's going to demonstrate our democracy can still do big things.

As somebody raised by a single mother who is a public school teacher who didn't make more than $50,000 in a year, there is so much in this, from pre-K, to child care, that is so important for us, the child tax credit.

You know, I know some families are going to benefit from this. So I hope we can soon start talking about the great things we've done and are going to be doing for the American people and stop talking about the kind of internal squabbles we've been having in our caucuses.

O'DONNELL: Did the president mention Virginia today as part of his reasoning for why he wanted to see a bill passed today to have a positive impact on the governor's race in Virginia?

ALLRED: I don't think the president mentioned it specifically. It has been raised by my colleagues from Virginia and we all recognize that we have to show we can get things done because the American people really don't understand that we're dealing with a super majority requirement in the Senate and that we have to go through this kind of strange process of reconciliation, just know that we have a Democrat in the White House and Democratic control of the Senate and the House. And so, we have to deliver and we're going to.

And so, obviously, I hope we have a good election next week in Virginia, but the overall goal is to set us on a path for the next decade and decades after that of prosperity in a way that builds back from the middle class out. And that's what the president is committed to. That is what I think these packages together are going to allow us to do.

O'DONNELL: Congressman Colin Allred, thank you very much for joining our discussion. Really appreciate it.

ALLRED: Thanks, Lawrence.

O'DONNELL: Coming up, Zerlina Maxwell, John Heilemann and Norm Ornstein will join us on what's next for the Democrats in the House and Senate.




PELOSI: I trust the president of the United States, and again the text is out there if they have some -- anybody, any senator, any House member has some suggestions about where their comfort level is or their dismay might be, then we welcome that. But I trust the president of the United States.


O'DONNELL: Joining us now is Zerlina Maxwell, the host of the program Zerlina that airs on the choice from MSNBC exclusively on Peacock. John Heilemann is with us, NBC News and MSNBC national affairs analyst, host and executive producer of Showtime's "The Circus", and host of "The Hell and High Water" podcast from "The Recount", and Norm Ornstein, congressional historian and emeritus scholar at the American Enterprise Institute is with us.

Zerlina, Nancy Pelosi trusts the president of the United States but there are at least 30 or so Democrats in the House who did not trust his judgment about whether those two senators, Sinema and Manchin, would actually vote for this bill.

ZERLINA MAXWELL, PEACOCK HOST, "ZERLINA": I think the progressives want something to trust in and I think trust is built over time and I think it's hard to build up that trust when you have one of the senators at least not really telling anybody what they are for, just coming out and saying, nope. Not that. Nope, not that. Okay. I'm going to go back to my home state of Arizona in the middle of the negotiations.

And I think that is really frustrating but it also puts them in a position where they say, look, tell us what you're for, if you are going to agree with us and make sure that both of these things get across the finish line. Otherwise, we can walk away.

I think that the lesson of this moment I think for elected Democrats and the White House is that the progressive caucus has real power in this negotiation and it is no longer just a bunch of folks who are pushing progressive ideas on the fringes or anything like that. They are a power center in the Democratic Caucus and they are able to communicate to the White House in clear terms what the American people voted for.

And that I think is a critically important point in thinking through what's at stake in these negotiations and looking forward, Democratic voters, if you want the policies that didn't end up in the plan, you need to elect more people like the progressive caucus members.


O'DONNELL: John Heilemann, we are seeing power exercised by the progressive side of the House the likes of which we have never seen before.

It is an enormous amount of power but it is a form of power that we -- that we also haven't seen which is they only have the power to kill things that they want. They are in favor of the bipartisan infrastructure bill. They have the power to kill it.

The power Joe Manchin and the power that Sinema have is the power to kill things that they don't want. And that is historically the way negative power, the power of no has always been used, to kill something that you actually don't want.

Today the power was used to at least stop for now, for this week something that the progressives do want which is the infrastructure bill.

JOHN HEILEMANN, MSNBC NATIONAL AFFAIRS ANALYST: Well, not just something the progressives want Lawrence but something the president desperately wanted and Nancy Pelosi wanted. It is twice now. You know, twice -- there was a deadline, lo over a month ago. Nancy Pelosi and Joe Biden pushed hard, hard, hard and then had to back down in the face of this dynamic.

Progressives not happy because of Manchin and Sinema -- what they were not saying at the time. Now this time we are here again a month later with a more significant deadline I would say in the sense that Joe Biden really wanted -- really wanted -- the White House wanted him to be able to go to Scotland, to Glasgow in particular, even more than the G20 with a genuine climate commitment in his hand. And to be able to walk in with that kind of credibility.

And they are also looking at the off year elections on Tuesday, right, on Tuesday in Virginia and New Jersey with concern, right because every time this deadline gets pushed out later more events happen in the political environment that could make it more complicated to pass this bill.

So they really wanted to get this done today. And again, it happened. So, you know, we're hearing a lot from Pramila Jayapal tonight that suggests that there is some progressive softening on some stuff. They've now seen some of the legislative language. She is trying to put a very positive face on the fact that we're very close.

But I'll say again, you know, I don't know what will happen next week if Terry McAuliffe loses in Virginia by a lot. It is not going to be good for the president and it's not going to be good for intestinal fortitude of a lot of Democrats in the House I would say.

So we'll see where it all goes. I don't think it is over by any means right now and I still think that the odds are that they'll get both these bills passed but every day it goes later the more tricky it gets.

O'DONNELL: Norm, what did you see today in the drama as it unfolded?

NORM ORNSTEIN, CONGRESSIONAL HISTORIAN: I'm a little surprised that we didn't get the firm commitments from Manchin and Sinema. But let me put a slightly more positive spin on this.

First it is quite remarkable that Nancy Pelosi was able within a matter of hours to get all of the language in this bill. The first thing we heard from Pramila Jayapal this morning was I want to see the text and then they got the text.

So they've moved further along and they're very close I think to getting this over the finish line. Not there but they're close.

The second part of this is what Jayapal said about her conversation with Sinema and the fact that she sat down with Kyrsten Sinema is itself an interesting thing but that she came away with a more positive feeling about this I think suggests that they're likely to get this done at least to a point where 50 senators agree that they're going to support this and then I think we'll see those two bills pass in the house.

And remember, one of the things that Nancy Pelosi has in her quiver is that if she gets this bill passed she does not have to send it to the president. She can hold it for the rest of the Congress.

And if they get the bill passed and it's basically we're going to send this to the president as soon as the Senate votes on the infrastructure reconciliation package, then we've got a deal.

And then I think we get a quite remarkable message. If we had sat on January 20th at the Biden inaugural and said he's got a 50/50 senate and three-vote margin in the House and within his first year there is going to be almost $5 trillion in remarkable, transformative spending to get people out of the COVID hole and to completely change the way we deal with physical and human infrastructure, creating jobs and a real cushion for working class, middle class, and poor people we would have said that would be nothing short of a miracle.

When that happens, if that happens, all of this sturm and drang I think will be put into the back -- rear view mirror.

O'DONNELL: Yes. Zerlina, all of that is historically true. This is historic legislation no matter what version now that they end up doing. It is just an enormous achievement.


O'DONNELL: However, the Democrats have managed to play it in the House in such a way and drag it out in such a way that it is not going to feel like that. It is going to feel like some stumbling across a finish line after a lot of anger and bitterness.

MAXWELL: It feels a little bit like the Obamacare fight, Lawrence. And frankly, I was laughing today because I remembered the name Kent Conrad and I was like I wonder how many people today think about Kent Conrad, for example, as a very significant figure in American politics because of the fact that he was one of the Democrats, more moderate Democrats from North Dakota who didn't want the public option.

And when that was taken out of the package the bill almost died. It almost died several times over the course of a few years, Lawrence.

And I remember being on this show another time Obamacare was supposed to be over and dead and that was when the Web site didn't work.

And so I think in this moment the right advice is to be clear-eyed about what is in this package and how it will benefit the American people, the impact it will have.

And that is always good news when it is things like child care and increased investments into wages for home health aides.

I mean this is real stuff that is going to impact lives.

O'DONNELL: Zerlina Maxwell, John Heilemann, Norm Ornstein, thank you all very much for joining us tonight. Really appreciate it.

MAXWELL: Thanks, Lawrence.

ORNSTEIN: Thank you, Lawrence.

O'DONNELL: Thank you.

HEILEMANN: Thanks, Lawrence.

O'DONNELL: And up next, new developments tonight with the subpoenas from the House Select Committee investigating the attack on the Capitol. That's next.



O'DONNELL: NBC News is reporting tonight that the House Select Committee investigating the attack on the Capitol on January 6th will subpoena attorney John Eastman who wrote the false legal memo that Donald Trump tried to use to convince Vice President Mike Pence to try to steal the presidential election from Joe Biden. The committee will issue the subpoena next week.

NBC News is also reporting that Alyssa Farah, the former Trump White House director of strategic communications who resigned in December of 2020 has been voluntarily speaking with the Republicans on the Select Committee for a few months now.

The day after the attack on the Capitol, Alyssa Farah told "Politico" she quit the Trump White House because she, quote, "saw where this was heading. The president and certain advisers around him are directly responsible".

And the committee has granted a postponement of the under oath testimony of Jeffrey Clark that was scheduled for tomorrow because Jeffrey Clark has lost his lawyer. The "Washington Post" reports that Jeffrey Clark's lawyer Robert Driscoll, quote, "had dropped his representation of the former justice official because of the change the committee granted Clark a brief postponement according to a committee staffer. It was not clear why Driscoll and Clark split but people familiar with the matter suggested that it had to do with whether Clark would cooperate with the committee's requests."

Jeffrey Clark was reportedly trying to stage a coup within the Justice Department and get himself promoted to acting attorney general by drafting a letter to Georgia officials that urged them to investigate nonexistent voter fraud.

Donald Trump was considering a plan to fire his acting attorney general and install Jeffrey Clark as attorney general so that that letter could be sent. It was only when Donald Trump was confronted with the possibility of the immediate protest resignations of virtually everyone else at the top of the Justice Department if he fired the acting attorney general that Donald Trump then retreated from that plan.

Joining us now is Paul Butler, law professor at Georgetown University and a former federal prosecutor. He is an MSNBC legal analyst.

Paul, I am fascinated by the postponement of Jeffrey Clark's testimony because he lost his lawyer and this reporting in the Washington Post that the separation from the lawyer has something to do with whether he will cooperate with the committee. What is your interpretation of all of that?

PAUL BUTLER, MSNBC LEGAL ANALYST: It's really interesting.

So Lawrence, when a lawyer leaves a case she is required by attorney-client privilege to continue to respect confidential information so we don't know if Jeffrey Clark fired his lawyer or if the lawyer quit on his own.

It has been reported, as you said, that there was this feud between Clark and the lawyer about whether Clark would cooperate with the House Committee. If Clark refuses to cooperate with the committee he risks being held in criminal contempt so at some point Clark has to make a decision that is quite common with people in Donald Trump's orbit. Is he more afraid of Donald Trump or is he more afraid of going to jail?

O'DONNELL: Let's for the moment assume that Attorney Driscoll who is no longer representing Clark is making honorable choices here. Would it for example be an honorable choice if the lawyer said I'm not going to represent you if you do cooperate with the committee.

BUTLER: If the lawyer thinks that that is not in the best interests of his client, then he certainly is entitled to do that. He has to get permission from the judge and explain his reasoning to the judge but if the judge approves it he can quit the case.


O'DONNELL: But in an instance like this where there is no judge, I mean that would be -- say, in a courtroom in a civil case or criminal case in a courtroom. But there is no judge here so that's what -- that's what makes this so weird, right? We are absent a certain kind of information we might have if this had been a court case.

BUTLER: Yes. That's absolutely right. So again, it is the lawyer's prerogative if he doesn't feel like he is the best person to represent the client to suggest respectfully that the client find another attorney.

O'DONNELL: And we know that the committee is not being especially patient about these things so we could maybe read into the granting of a brief postponement here, the sense that the committee believes Clark is headed toward cooperation with them.

BUTLER: Yes. And the committee also understands that Trump's claims about executive privilege are weak. No court has ever said that that applies to a former president and the privilege only applies to official presidential duties which do not include trying to subvert an election.

So eventually everybody who is trying to fight having to testify or turn over documents is going to lose. Trump is going to lose his fight to prevent people from testifying. But Lawrence it may take a long time for Trump to lose depending on the speed or lack thereof at which courts resolve these issues.

O'DONNELL: And of course, agreeing to testify still leaves open the possibility that there would be some questions unanswered. I mean Clark, for example, could conceivably invoke the Fifth Amendment in certain situations.

BUTLER: That is his absolute right. And again if he faces criminal exposure with his truthful testimony, any lawyer would advise him to take the Fifth.

O'DONNELL: Paul Butler, thank you very much for joining us again tonight. We always appreciate it.

BUTLER: Always a pleasure.

O'DONNELL: Thank you.

And coming up, there has been some speculation that former New York Governor Andrew Cuomo might try to win the governorship back next year since he still has $18 million in campaign funds. But today in an Albany Court Andrew Cuomo was charged with the crime of forcible touching. That's next.



O'DONNELL: Today the sheriff's office in Albany County, New York filed a criminal complaint against former New York Governor Andrew Cuomo accusing him of the misdemeanor of forcible touching.

The criminal complaint alleges Andrew Cuomo did knowingly and intentionally commit the Class A misdemeanor of forcible touching December 7th, 2020 at the governor's mansion. The sheriff's complaint noted "a person is guilty of forcible touching when such person intentionally and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person or for the purpose of gratifying the actor's sexual desire."

A lawyer for Andrew Cuomo said tonight, quote, "Governor Cuomo has never assaulted anyone." A criminal summons has been issued for Andrew Cuomo to appear in court on November 17th.

And joining us now is Jimmy Vielkind a reporter with "The Wall Street Journal" covering New York state politics from the state capitol in Albany.

There's a little confusion today about what this legal filing actually was. The district attorney apparently didn't know that the sheriff had done this. But does this mean that the governor -- former governor definitely will be appearing in court on November 17th?

JIMMY VIELKIND, "WALL STREET JOURNAL": Well, that's right, Lawrence. It was a little bit confusing to have the sheriff moving at a different speed than the district attorney who would normally be involved in charges of a higher magnitude. And you would expect particularly against such a high-profile individual as Andrew Cuomo.

The summons is returnable on November 17th. Lawyers who I've spoken with expect that the governor will appear and be arraigned on the charge at that time. And until then, what this does is take allegations that have emerged first in the spring were substantiated over the summer in a report by attorney general Letitia James and are now leading to first criminal exposure for the 63-year-old former third-term governor.

There's still other counties with prosecutors looking into various instances of alleged harassment that could have criminal exposure. And we also know that there's a probe into the potential misuse of state resources pending in the attorney general's office.

So there are several clouds still hanging around Andrew Cuomo even more than a month after he has left office.

O'DONNELL: Attorney general Letitia James issued a statement tonight saying that, "The criminal charges brought today against Mr. Cuomo for forcible touching further validate the findings in our report.

And of course, it was the attorney general's report that ultimately forced the governor to resign.

VIELKIND: That's right. And this has a political context as well. "The Wall Street Journal" and other outlets reported this week that Ms. James herself is close to announcing a bid for governor.

According to people familiar with the matter, she has spoken with several key labor leaders about her intention to announce a bid, and one of her campaign advisers confirmed she had made a decision and would be announcing it in the next several days.


VIELKIND: For the last several weeks, former Governor Cuomo has been undermining and attacking the attorney general's August report saying that the whole thing was politically motivated and even claiming in a letter to political supporters that he had been forced from office by an inside job that essentially upended the will of the voters.

Ms. James, of course, says that the criminal charges, and if there are other validation that comes from an outside report expected by the New York State Assembly, as proof that her office's effort was without fear or favor and above the influence of politics.

O'DONNELL: Jimmy Vielkind, thank you very much for joining us tonight. Really appreciate it.

VIELKIND: Thank you.

O'DONNELL: Thank you.

Tonight's LAST WORD is next.



O'DONNELL: Programming note for tomorrow night here on MSNBC at 10:00 p.m. you can and should and must watch the Peacock Original Film "CIVIL WAR", which was produced by Brad Pitt, Henry Lewis Gates Jr. and others, is a brilliant film about America's history of slavery, the civil war, the aftermath of the civil war, and how all of that lives with us today.

That's tomorrow night, 10:00 p.m. Eastern right here on MSNBC. Watch it, record it, watch it again.

I will be watching for the second time tomorrow night. It really is that good. You will learn a lot. I certainly did.

That is tonight's LAST WORD.