On Saturday the National Archives detailed in a court filing exactly which records Donald Trump is suing to keep secret from the January 6 committee. The last published poll before tomorrow`s election for governor of Virginia shows the candidates are tied. The final Washington Post poll shows Democrat Terry McAuliffe at 49 and Republican Glenn Youngkin at 48 percent.
LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.
I`m so excited about tomorrow. It`s not because I don`t have to write anything tomorrow because we`re doing my favorite thing, which is election coverage preempting these hours. But we are going to be working together again, and that`s a very exciting thing.
If you can call it work. It`s really just kind of -- we`re sort of on TV watching TV, like watching the returns, like what`s going to happen next.
RACHEL MADDOW, MSNBC HOST, "TRMS": Listen, I`m going to be doing -- I`m going to be air guitaring the tympani from the ewlection music every time we come out of a commercial. I`m just going to be flagging down Steve Kornacki any time I have a stray thought or it looks like some new piece of new data might have wafted his way.
I`m super excited -- I`m, A, super nervous to be back with everybody in person, but also super excited about it.
MADDOW: It`s going to be a fascinating night because the results in Virginia, are going to be super consequential and they`re impossible to predict.
O`DONNELL: I will -- I`ll be doing special coverage of the election of mayor of Boston, tomorrow night. That will be -- that will be my beat.
MADDOW: I`m going to get my beauty sleep. I`ll see you tomorrow, Lawrence.
O`DONNELL: OK, thank you, Rachel. Thank you.
MADDOW: Good night.
O`DONNELL: Well, today, the United States Supreme Court heard three hours on the new Texas abortion law. The law allows anyone to sue any abortion provider in Texas who provides abortion services. After six weeks of pregnancy, the law does not allow any exception for pregnancies that are a result of rape and incest.
And so, under Texas law, if a father rapes his daughter, that father can also sue anyone who provides abortion services to the daughter he raped. That is the law that Texas legislators wrote that. That is how perverted that law is.
And as long as Roe v. Wade is the law of the land, the Texas law is grossly unconstitutional. The state of Texas defended its new law at the Supreme Court today, by insisting that the Texas legislator outsmarted the federal government and the United States Supreme Court by writing a law that empowered citizens to enforce the law, and therefore no one has a right to sue the government of Texas to block a law that the government of Texas is actually not technically in power to enforce.
Here is what Solicitor General Elizabeth Prelogar said to the court.
(BEGIN AUDIO CLIP)
ELIZABETH PRELOGAR, U.S. SOLICITOR GENERAL: Across the arguments this morning, Texas position is that no one can sue. Not the woman whose rights are most directly affected. Not the providers who have been chilled in being able to provide those women with care, and not the United States in the suit.
If that is true, if the state can just take the simple mechanism of taking its enforcement authority and giving it to the general public, backed up with a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe. No constitutional decision from this court is safe.
Our constitutional guarantees cannot be that fragile and the supremacy of federal law cannot be that easily subject to manipulation.
(END AUDIO CLIP)
O`DONNELL: Marc Hearron, representing abortion services provider, said this.
(BEGIN AUDIO CLIP)
MARC HEARRON: In enacting Senate bill eight, the Texas legislature not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court. To allow Texas`s scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagree. At issue here is nothing less the supremacy of federal law.
(END AUDIO CLIP)
O`DONNELL: Justice Elena Kagan made it clear that the Supreme Court, has never seen a case like this.
(BEGIN AUDIO CLIP)
JUSTICE ELENA KAGAN, SUPREME COURT: The fact that after, oh these many years, some geniuses came up with a way to evade the commands of that decision as well as the command that the broader, the even broader principle, that states are not to nullify federal constitutional rights.
And to say, oh we`ve never seen this before so we can`t do anything about it. I guess I just don`t understand the argument.
(END AUDIO CLIP)
O`DONNELL: The U.S. solicitor general said that the Texas law`s intention was, quote, to thwart the supremacy of federal law in open defiance of our constitutional structure.
(BEGIN AUDIO CLIP)
PRELOGAR: States are free to ask this court to reconsider its constitutional precedence, but they are not free to place themselves above this court, nullify the court`s decisions in their borders, and block the judicial review necessary to vindicate federal rights.
(END AUDIO CLIP)
O`DONNELL: Chief Justice John Roberts, who voted in September to block the law from going into effect, seemed exasperated by the solicitor general for the state of Texas, Judd Stone.
(BEGIN AUDIO CLIP)
CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Assume that the bounty is not $10,000 but 1 million dollars. Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state core process?
JUDD E. STONE, TEXAS SOLICITOR GENERAL: No, Your Honor. I might add this is a specifically a damage accident, it is kept at much --
ROBERTS: My question is a -- what we call hypothetical.
(END AUDIO CLIP)
O`DONNELL: Leading off our discussion tonight is Neal Katyal, former acting U.S. solicitor general and an MSNBC legal contributor.
And, Neal, I want to begin with that last point that the chief made about his hypothetical, and what if the amount of money was higher. They`re trying to show what the chilling effect is on behavior because of the threat of lawsuits.
NEAL KATYAL, MSNBC LEGAL CONTRIBUTOR: Exactly. So, you know, as an advocate the last thing you want to do is get with the chief justice said in that question. Hey, this is a hypothetical police answer it. It was the Texas solicitor general I believe first argument I thought he did well for what he had to work with, which was not very much.
And, Lawrence, I think the conventional wisdom -- you can`t predict much in moral arguments, they`re asking tough questions about -- I think that`s generally right. But if I think back to my 45 oral arguments, you kind of can predict where the courts going to come out, and I think it`s likely that Texas did lose the argument today, both because the audaciousness of the Texas law became really apparent in the argument, but also because the key votes that Texas needed to win seemed lost. We already knew the chief justice was probably lost vote for Texas because two months ago, in a procedural case, he cited against Texas as part of this for dissenting justices.
But we`re seeing -- Justice Kavanaugh today said, that this was -- Texas position was really contrary to the whole spirit of a president from 19 awaits -- which played a big role today. And also Justice Barrett said that she was worried the Texas law didn`t provide full enforcement of federal Constitution -- in state courts. So, taken together, anything together but it looks very bad for Texas.
O`DONNELL: In the previous hour, Rachel played some of the tape that showed that the Texas solicitor general, when cornered him by Justice Kagan on eliminating, just eliminating the constitutional right for women who think they might be more than six weeks pregnant. He said in effect, no, we`ve eliminated, but we may have diminished a little bit.
In terms of Supreme Court argument about infringement on rights, how does that fly? That the notion that we didn`t eliminate it, we just into diminish it.
KATYAL: Yeah, I think the Greeks call that sophistry and I think that`s basically what that was. It was sophistry dressed up as some sort of tactical argument. It was frankly pretty hard to follow as Justice Kagan said what Texas was saying. But I do think it`s really important that all or viewers understand, today was just a procedural question, really about whether this vigilante provision means that you can actually even sue Texas, or its officials.
It`s not a judgment on whether Roe v. Wade is going to be the law of the land. And so if my prediction is right, and Texas loses in the Supreme Court, today`s royal argument that doesn`t mean that this Supreme Court is going to now uphold Roe versus Wade or anything like that.
And indeed, a month from today, we`ll be hearing a case for Mississippi which is designed to overrule Roe v. Wade. And it is it is very possible the same justices, who today strike down the vigilante, or bounty provision on procedural grounds, may still vote to overrule Roe v. Wade. So elections matter, tomorrow`s elections matter -- in of course, who`s on the U.S. Supreme Court.
O`DONNELL: So what are the options for the court in this case? Is it -- are they being asked to simply allow people to file lawsuits and bring lawsuits to block this law in federal court?
KATYAL: Right, that`s the basic claim that the challengers of the United States government are making, which is let us have a day in court at least argue as to whether the Texas law is constitutional or not. If Texas had its way, you couldn`t actually file a lawsuit at all or you`d have to wait for as long as it takes until someone brought a private bounty hunter for lawsuit under this -- new Texas law.
So, that is really it. They made abroad a clear lame, they`d like to uphold Roe versus Wade, but that`s really not front and center of the court, and I don`t expect them to rule on it in this case. I think they will, reach that in Mississippi and indeed may have the Texas case come back to the United States Supreme Court on the road versus wave question, sometime next year presumably after the Senate.
O`DONNELL: Based on your reading of where the courts headed here, what is the effect for abortion services providers in Texas if the court rules in the way you are anticipating?
KATYAL: Well, if they rule soon than what it would mean is that the Texas challengers, the folks challenging the Texas law, would go into federal trial court in Texas. And indeed the court of appeals and say, we want to stay of this law, we wanted to not take effect until it is blessed by federal courts. And it`s pretty hard to bless this law because it is a straight violation of Roe v. Wade, so we`re taking the United States Supreme Court decision to really reinstate the law.
And that`s probably a year away. So I think the effect of today`s decision is likely to be, today`s argument, is likely that Texas loses will be the say we`ve got to go to the lower courts, the lower courts will probably keep that lost state. So it can`t go in effect -- can resume in Texas for approximately one would be the next year. There is a lot of caveats and guesswork in what I`m saying to you, but I think that that`s probably the most likely scenario right now.
O`DONNELL: Neal Katyal, thank you so very much for starting us off on this night, really appreciate it. Thank you.
And joining us now, is Dr. Ghazaleh Moayedi. She is an OB/GYN physician in Texas and a board member at the Physicians for Reproductive Health.
Doctor, what was your reaction to what you heard the Supreme Court today?
DR. GHAZALEH MOAYEDI, OB-GYN IN TEXAS: You know, dishearten that we`re here are still without abortion access in our state. That there are people in D.C. talking about my community, while my community suffers, still. And, I hope this decision comes quickly but it`s already been 61 days too long.
O`DONNELL: So, we just heard a Neal Katyal say that there is a distinct possibility that this kill case will reopen abortion services in Texas for maybe a year. It might buy a year we. In the deliberation of the adult make deliberation on this case.
How will that change things in Texas, will providers come back into providing the services?
MOAYEDI: You know, that remains to be seen with what the Supreme Court decides. One of the particularly nefarious parts of this law is that if there is an injunction, but then later the law is held in place, that physicians and providers can be sued for the abortions they provided while there was an injunction, and so, that piece is also critical to understand.
We had an injunction for just a few days, not too long ago, and that didn`t mean that all of a sudden people got abortion care. We were still at risk of being sued, once the objection was overturned.
O`DONNELL: What is the situation in Texas now? What are women experiencing in Texas now?
MOAYEDI: Yeah, so in Texas right now, abortion care has nearly stopped.
In comparison to September of last year, we have a report that came out just last week from the Texas Evaluation Project that showed, that abortion care was cut in half in comparison to the year before. Now, that`s likely due to the number of people that we saw in August, prior to the lobbying in effect. And I think as we see those numbers continue, as we see this ban continue for longer and longer, we`re going to see less and less people access that care.
What remains to be seen as how many people are actually able to leave the state. Last week I went to Oklahoma to provide a abortion care like I do, and 80 percent of the people were from Texas. About three were from my neighborhood, right here in Dallas. Many drove over eight or nine hours from Dallas to the coast, to make it to the Oklahoma City.
That means of people in Oklahoma are having to travel outside of Oklahoma to get care. That is just causing ripple effect and abortion care throughout the country, not just in Texas.
O`DONNELL: Dr. Ghazaleh Moayedi, thank you very much for joining us tonight, we really appreciate it.
MOAYEDI: Thank you for having me.
O`DONNELL: And coming up, this afternoon, Senator Joe Manchin complained that house Democrats are engaging with he thought was unprecedented legislative a hostage taking. Tonight, it sounds like the hostage may have been released.
Congressman Ro Khanna will join us next and explain it all.
(BEGIN VIDEO CLIP)
REP. NANCY PELOSI (D-CA), SPEAKER OF THE HOUSE: I trust the president of the United States.
(END VIDED CLIP)
O`DONNELL: That was what the Speaker of the House Nancy Pelosi, said on Thursday when she asked the Democrats in the house to pass the bipartisan infrastructure bill that was passed by the Senate in August. That was what President Biden wanted the Democrats in the House to do on Thursday -- pass the bipartisan infrastructure bill, and give the Democrats a big legislative win, but in progressive caucus in the House refused to do. That the progressive cost wanted proof, and all 50 Democrats in the Senate who ripped supported the reconciliation bill before the House progressives would be willing to vote for the infrastructure bill, that the Senate already passed.
This afternoon, Senator Joe Manchin called that, legislative hostage taking.
(BEGIN VIDEO CLIP)
SEN. JOE MANCHIN (D-WV): I`ve worked in good faith for three months, in the past three months with President Biden, Leader Schumer, Speaker Pelosi, and my colleagues, on the reconciliation bill. And I will continue to do so for the sake of the country, I urge the House to vote and pass the bipartisan infrastructure bill. Holding this bill hostage is not going to work and getting my support for the reconciliation bill.
(END VIDEO CLIP)
O`DONNELL: Senator Manchin said he is open to voting for the reconciliation bill but he wants more information about it.
(BEGIN VIDEO CLIP)
MANCHIN: I for one won`t support a multitrillion bill without greater clarity about why Congress chooses to ignore the serious effects of inflation. And debt, that has on our economy and existing government.
(END VIDEO CLIP)
O`DONNELL: And, of course, as Senator Manchin should know, that is exactly what they nonpartisan Congressional Budget Office will analyze when it issues its official report, scoring the bill.
Senator Brian Schatz pointed that out in a tweet while Senator Manchin was actually still speaking. Senator Schatz said we need a CBO score anyway, in order to process the bill through the parliamentarian on the Senate side. None of what was said was exactly new, the tone alarm people, but substantively nothing has changed.
But something did seem to change after Senator Manchin spoke today, the Progressive Caucus has now apparently decided that they are willing to vote on the bill Joe Manchin wants them to vote for, the Senate bipartisan infrastructure bill, even without a guarantee from Joe Manchin that he will vote for the reconciliation bill.
(BEGIN VIDEO CLIP)
REPORTER: Is every progressive prepared to vote for the bipartisan infrastructure?
REP. PRAMILA JAYAPAL (D-WA): I do believe we`re going to deliver our members with both bills. I just have to believe with the president says, and the president said right after the senator spoke, that he is confident he can deliver 51 votes for this win. I am going to trust this president. Our members are going to trust the president.
(END VIDEO CLIP)
O`DONNELL: Joining us now is Democratic Congressman Ro Khanna of California. He`s a member of the Congressional Progressive Caucus.
Representative Khanna, thank you very much for joining us tonight.
So, Nancy Pelosi said I trust the president on Thursday, and she trusted him so much on Thursday she was ready to have a vote on the bipartisan infrastructure bill, it sounds now like the progressive caucus trust the president to the same extent, and is willing to vote on the bipartisan infrastructure bill now.
REP. RO KHANNA (D-CA): We do, we are. Here is why we didn`t vote on Thursday. We wanted on vote on both things, on the bipartisan bill and on the Build Back Better bill.
And the reason, Lawrence, is we had no say on the bipartisan bill, we wanted things like climate position -- a lot of progress was made this weekend, we had a lot of calls with progressives. At the end of the weekend, before Senator Manchin`s statement, we came to a sense that we wanted both bills voted on this week, and we`re going to do that.
O`DONNELL: Well, you can`t -- as you know you can`t really vote on the reconciliation bill until CBO has scored it. There is no point in voting for it because it wouldn`t be a proper legislative vehicle without that CBO score.
So what Manchin was saying as kind of threatening was it sounded, was actually describing what the Senate procedure is.
KHANNA: Correct. But, let`s see when they pulled it for a vote, let`s see when the CBO score comes, I know they`re trying to expedite, at maybe we vote by the end of the week. I think the point is that we will have both votes together, in terms of sequentially in the House, as I understand it.
For both for them, the infrastructure bill will go to the president`s desk, that becomes law. The other bill, there is some risk, and this all depends on the Senate voting for it.
I am confident that this president will prevail and that we will get universal child care, we will get the biggest climate, we will look at universal preschool, and that those priorities will be in the final bill.
O`DONNELL: So, your position that is, let`s have the House basically just call the senate`s bluff on this, which is to say called the bluff of two senators, Sinema who remains absolutely silent, and Joe Manchin who said he would and he had to say today.
You want the House to vote on the reconciliation bill, send it to the Senate, and then just find out if Joe Manchin and Sinema are willing to vote for it.
KHANNA: Exactly. And I really don`t think, when push comes to some of, any of the House having voted for this unanimously in terms of Democrats, maybe one or two defections, you have the speaker for it, you have the president for it, you have Senator Schumer for of it -- and one or two senators are going to sink the bill. I refused to believe that. I think they`re going to vote by and large for the framework.
And remember this, Lawrence, President Biden didn`t make that commitment for Democrats for months. It would`ve been easy for him two months to go to say, hey, look, I have all the votes. He didn`t do it he`s very careful about his work, I disagreed with the president, but the one thing he says straight shooter.
When he gets his word for something, you can take it to the bank. And I think that`s why a lot of people trust him.
O`DONNELL: So, this would be a big strategic shift for Speaker Pelosi, for as far as I can remember -- when Democrats have had control of both Houses, has never sent a bill to the Senate, to the Democratic Senate, without an understanding that the Democratic said it could pass that version of the bill.
KHANNA: She`s still maintaining that. She`s saying that she wants to make sure that whatever we passed in the House, passes at the Senate. She doesn`t want members have to vote for something that doesn`t become law. I think the speaker is confident based on what the president is saying, that the votes will be there.
Look, sometimes, senators say things publicly, they have to say things publicly, what matters is what are the assurances they are given. I am confident that this president has the assurances of every senator, that they will not stand in the way in delivering to the American people.
But at the end, we have to come together as a party, we have to do something for this country, we have to do something for the working class. This will be transformative.
And, Lawrence, one point, Bill Clinton had 57 senators, Obama had 60 senators. This president is going to pull up perhaps the most transformative agenda for the working class in the last 40 years with 50 senators. He deserves credit.
O`DONNELL: Yeah, there`s never been anything like it. I mean, the idea that you can have an active agenda, from either party really, with 50 senators, is just something that we`ve never seen before. And as we all know, the Senate hurdles are just too high when there`s only 50 senators, you get 51 votes with the vice president on your side.
And so, it is remarkable that it has come this far. But, it seems tonight that we`re still sitting here not having any idea what Joe Manchin`s going to be willing to do in the end. Although it seems he`s going to be on some version of the bill.
But, Senator Sinema, we just don`t have the biggest idea. She just seems to have no sense of responsibility whatsoever, for public accountability for letting her voters know what work she`s trying to do, or letting her colleagues in the Congress know what she`s trying to accomplish.
KHANNA: Lawrence, that`s what`s been disappointing and we`ve discussed this before. No transparency, no accountability, but I`m convinced now that she`s told a few key people that she`s for.
But think about it like this, let`s say you have a big family Thanksgiving dinner, you`re doing the man you, and any one person, anyone relative, can`t say no to the whole thing. I mean, that`s what it`s like for this president. And he sat there hours. Okay, spend an hour with the president - - he spent hours with lawmakers, he sat with progressives longer than I`ve sat with progressives.
He`s had so much patience. He has so many relationships, the speaker has so many relationship, they`re pulling together something that is remarkable. And history won`t judge all the scrimmage is, they`ll drug that finally we did something for the working class, putting more money in their pockets with the child allowance tax credit. I`m excited about that phase when we get to tell people what we`re doing.
O`DONNELL: Congressman Ro Khanna, thank you very much for joining us once again tonight. We really appreciate it.
KHANNA: Appreciate it.
O`DONNELL: Thank you.
And joining us now is congressional historian Norm Ornstein. He is emeritus scholar at the American Enterprise Institute.
Norm, I got the same question for you that I do every night. What is going on here?
NORM ORNSTEIN, CONGRESSIONAL HISTORIAN: I`m not going to panic, Lawrence. I think we are waiting for that CBO score. My guess is that the score is going to come in very possibly saying it doesn`t completely balance. And the worst thing that happens is they go back and they tinker a little bit to bring it closer to balance.
We have to remember that while Joe Manchin is so concerned about deficits, debt and inflation, that bipartisan infrastructure bill that is going to come up for a vote in the House actually adds a quarter of a trillion dollars to the debt over its 10-year life.
So we`re not exactly speaking about purity here. I am so interested to see the change in the progressive caucus and one of the great ironies here is if the group that`s supposed to be more rigid ideologically, you had seen a few pundits refer to it as the Democratic equivalent of the Freedom Caucus which is close to journalistic malpractice, I think.
They`re the pragmatic ones. And they`re willing to take a fly around this. And I think it`s for a couple of reasons Ro Khanna hindered that.
One is Manchin and Sinema, I believe, had given private assurances to Joe Biden that one way or another they`re going to vote for a big bill. It might be different, it`s actually gotten a little bit better over the weekend but they`re going to vote for a bill. They`re not going to be the ones who will keep it from happening.
And the second reason is that right now, with the language of that bill there and the reality that passing it through the House doesn`t mean that it immediately gets enacted into law.
Joe Biden -- if Nancy Pelosi sends it to the White House has 10 days and she can wait a little while to send it to the White House, there`s a little bit of time after they pass it just to make sure that this whole thing doesn`t fall apart.
So it`s going to come together with the delay, an unfortunate one, it`s really too bad. But I would be shocked if we don`t ultimately get something, as Ro Khanna said, that is really quite historic with these unbelievably small margins.
O`DONNELL: Is Nancy Pelosi going to be willing to bring the reconciliation bill to a vote in the House without having it wired in the Senate already?
ORNSTEIN: I doubt very much that Pelosi would do that unless she, as with these others have some pretty strong reason to believe that whatever the final product actually looks and all of its language that they`re going to get to yes with all 50 and that those are assurances that came to the president.
And remember with Sinema where we haven`t had, if she`s a cipher on a lot of this but the word we`ve gotten from the White House negotiators is that she has negotiated very clearly, set out lines and done it in good faith.
So I think there`s reason to believe, and I believe the progressive caucus has that reason to believe that they`re not just taking a flyer here that they`re going to get euchred (ph) by a couple of senators with a bait and switch.
O`DONNELL: But if they`re -- if they`re waiting for speaker Pelosi to basically get this fixed with the Senate, we`re still waiting for the same thing we`ve been waiting for all along which is to lock in those final two votes from the Senate.
ORMSTEIN: Yes. You know, It doesn`t surprise me that it would take a little bit of time and that there would be a concern about waiting for CBO.
Let`s face it. If you had 50 Senators who had said I like this plan, it`s all going to work, but then CBO came back and said some of these things are not going to work for us because they`re going to add too much to the deficit and remember, the parliamentarian is going to speak up as well.
The whole thing could have fallen apart even with those assurances.
ORNSTEIN: Yes. So I would be very surprised, it looked to me from the details in and the frame work of the bill that we`re not seeing a lot of things that are just taking a flyer here that this will provide, you know, it`s like the old waste and abuse and fraud. That that`s where we`re going to get the revenues.
These are fairly clear revenue measures and what they`ve done with the programs is to shorten the years and cut a little bit so that they can make it balanced. It ought to come pretty close to balance and I believe when that happens we`re likely to see Manchin go along..
O`DONNELL: Norm Ornstein, thank you for joining us on this once again, tonight. Always appreciate it.
ORNSTEIN: Thank you Lawrence.
O`DONNELL: And coming up, we now know exactly what Donald Trump is trying to prevent the January 6 committee from seeing. Congressman Adam Schiff, a member of that committee, will join us next.
O`DONNELL: On Saturday the National Archives detailed in a court filing exactly which records Donald Trump is suing to keep secret from the January 6 committee. In his lawsuit, Donald Trump is claiming executive privilege.
The problem with that is that legal claims of executive privilege belong exclusively to the president of the United States, who is joe Biden, not Donald Trump.
And President Biden has ordered the Archives to turn over that material. Donald Trump is trying to block the release of nearly 800 pages of documents, including files of his former chief of staff Mark Meadows, including a handwritten note listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues, the White House daily diary and information showing White House visitors, logs of phone calls to Donald Trump and to Mike Pence, presidential activity calendars and a related handwritten note for January 6, and a draft text of a presidential speech for the rally before the insurrection.
Joining us now is Democratic Congressman Adam Schiff of California. He is chair of the House Intelligence Committee and he`s a member of the select committee on the January 6 attack on the Capitol.
Thank you very much for joining us. What is your reaction to what we now know to be the substance of the lawsuit Donald Trump has brought to try to block this material?
REP. ADAM SCHIFF (D-CA): Not at all surprising he wants to block the committee from finding out about his conduct on January 6 and in the days leading up to that date.
All of those records are pertinent to our investigation. All of those records are pertinent to our being able to legislate to protect the country going forward.
And look, if the Trump lawyers don`t know it already, they should. Their claims have no merit. As you said, Lawrence, the sitting president has the authority to assert privilege or not assert it.
So Biden is not asserting privilege here. He recognizes that the national security interest is paramount here, that congress should be able to do its work. And as one of the amicus briefs made not of that was filed by dozens of former Democratic and Republican members of Congress, if you can`t effectuate Congress power here to do oversight, then congress might as well just go home.
O`DONNELL: And for the most part, the very concept of executive privilege, presidential executive privilege has been grounded over time in national security concerns, for the most part.
Of course, the president would not want it revealed that he had a certain discussion about some interaction or threatening interactions with a foreign country of some kind.
You, on the Intelligence Committee, would support that kind of privilege. You have shared -- and information has been shared with you on the Intelligence Committee that you cannot reveal. And that`s the kind of thing that we normally think of as being protected by executive privilege.
SCHIFF: It is. And you know, I would say it also protects a person`s ability to confide in top people around him. But as we saw in the Nixon case, those considerations ultimately have to give way if there is a paramount need to know in the Congress and in the country.
That was true in terms of Nixon and the Watergate tapes. And it`s true here. Indeed it would be hard to stay the stronger case even if there was a privilege, even if Joe Biden asserted a privilege here, which he is not doing. It would be hard to overcome Congress` need to know when we`re dealing with a violent attack on the Congress, an attempted insurrection.
So if there was ever a case to override a privilege where it applied it would be here. But here it doesn`t apply because Joe Biden has been, you know, willing to uphold Congress` need to know.
O`DONNELL: We just saw the United States Supreme Court today rush a hearing on the Texas abortion law really speed up their process. Should the courts be doing that in this case?
SCHIFF: Well, I think there is a need for expedition in terms of the January 6 Committee`s work because there is an urgency to being able to protect the country from another violent attack.
The president continues to push out the big lie about the election that led to the first attack. And so I do think it`s really important.
I would also say that the courts need to be mindful of the practice of Donald Trump to delay justice in order to escape justice. We saw that for four years as the former president went up and down the courts merely for the purpose of delay.
And here that delay could be disastrous for the country. So yes, I think all of the courts, district court, court of appeal, Supreme Court, any courts that look at these issues need to move with the greatest possible expedition.
O`DONNELL: Congressman, before you go, can you clear up what is now my confusion about what is happening in the House of Representatives right now this week on the Senate infrastructure bill? Is the House going to vote on passing the infrastructure bill that passed the Senate with a bipartisan vote in August?
SCHIFF: Yes. We`re going to take up both bills this week and both bills will pass. And I agree with what Norm was observing that I think the progressives, and I include myself among the group, have been very pragmatic and have been willing to trust that the president and the senate will get the votes to pass the Build Back Better Act. That`s an act of faith, I think, and I think that faith is well placed.
I have confidence in the speaker and the president and Senator Schumer. We`re going to get this done, and it really is miraculous that with a 50-50 majority and practically 50-50 in the House as well that President Biden will be able to achieve new deal magnitude investment in the American people, which is so desperately needed. It will be a dramatic accomplishment.
O`DONNELL: Has the Speaker told you that they`re going to vote on both bills this week?
SCHIFF: You know, I haven`t had that personal conversation with her, but I think she`s made it clear we`re taking these up. And I`m confident if she is ready to take those up that she is confident that we`ll pass this in the senate.
O`DONNELL: Congressman Adam Schiff, thank you very much for joining us tonight. Really appreciate it.
SCHIFF: Thank you.
O`DONNELL: And coming up, tomorrow is election day in America. DNC chair Jamie Harrison was knocking on doors in Virginia, trying to get out the vote this weekend. He will join us next.
O`DONNELL: The last published poll before tomorrow`s election for governor of Virginia shows the candidates are tied. The final Washington Post poll shows Democrat Terry McAuliffe at 49 and Republican Glenn Youngkin at 48 percent. The margin of error on the poll is 3.5 percent in either direction of those numbers which means the candidates could be 7 points apart.
O`DONNELL: From 2014 to 2018 Terry McAuliffe served as governor of Virginia where governors are not allowed to run for consecutive terms. The only Virginia governor to run for a non-consecutive second term was Mills Godwin who won as a Democrat in 1965 and won again in 1973 but that time he ran as a Republican.
If Terry McAuliffe wins tomorrow he will be the first Virginia governor to win two non-consecutive terms as a Democrat.
As of the final day of early voting on Saturday, more than 1.1 million early ballots have already been cast according to Target Smart. That is six times the number of early votes cast in the last Virginia governor`s race in 2017. 53 percent of those early votes were cast by Democrats and 31 percent were cast by Republicans.
Politico reports the focus on black voters in the final stretch of the campaign illustrates the critical role they`ll play on Tuesday. Not only did McAuliffe win a prior term as governor with the overwhelming support of black voters, especially black women, every national election since then has proved how critical they are to Democratic chances of victory in close races.
Here`s what Terry McAuliffe said earlier today.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: How important do you think the African-American vote will be in this election?
TERRY MCAULIFFE (D), VIRGINIA GUBERNATORIAL CANDIDATE: Always very important here in the Commonwealth of Virginia. And you know, we`re very, very encouraged. Obviously you see that we all have fought on here. You know I did more voting rights than any governor in the history of America.
Just from walking off the stage into the back room, three people came up to me and said thank you for giving me my rights back. So, you know, if people know what lean in (INAUDIBLE) -- it`s very important to have some critical vote.
(END VIDEO CLIP)
O`DONNELL:: Joining us now Jamie Harrison, chair of the Democratic National Committee. Mr. Chairman, thank you very much for joining us tonight.
You`ve been in Virginia. Tell us everything that`s going to happen there tomorrow.
JAMIE HARRISON, CHAIRMAN, DEMOCRATIC NATIONAL COMMITTEE: Well, Lawrence, thank you for having me.
Listen, Terry`s going to win this race, and I know that folks are on the edge of their seats. You know, polls say that it`s close. And when you go into every election understanding that it`s close, but at the end of the day, it`s just about turning out the vote.
And the folks in Virginia know Terry McAuliffe. They know the work that he`s done as governor. And they know that he will continue to deliver for them.
So I`m excited about it. I was excited to be there with him almost every weekend just pushing out and making sure that we got folks energized and educated about what`s at stake in this election.
And I believe Terry McAuliffe is going to be the next governor from the commonwealth of Virginia.
What we know about the early vote seems to indicate an overwhelming majority for Democrats in that early vote. What do you expect the share of the vote to be tomorrow? What percent of the voters will have voted early? What percent are going to vote on election day?
Well, you know, some of the estimates are that, you know, you could get another 2 million voters to come out tomorrow in tomorrow`s election. We`re not sure, but we feel really, really good about the early vote and how that breaks down.
Now we need to focus on those voters who are a little more difficult to get to come out to vote. Making sure that we`re doing phone calls. We`re still doing door-knocking. All the things that are so necessary in order to win elections.
We`re going to do everything that we need to, to make sure that Terry McAuliffe is the next governor.
O`DONNELL: So the final Washington Post poll does include something of a reversal of fortune for President Biden. It shows him with an approval in the state of 46 percent, 53 percent disapprove. Now that`s a state where Joe Biden won the presidency with 54 percent of the vote to Donald Trump`s 44 percent of the vote. So that seems to be a drop in support for the president in Virginia. How does that affect this race?
HARRISON: Well, you know, the president said it the other day. Polls will go up, polls will go down. We see this with almost every president. But at the end of the day, we have to stay focused on delivering for the American people.
Terry has been delivering for the longest time in Virginia. The Democrats have delivered, and we have to continue those efforts. And so that`s our big focus.
And you know, once we get this race and New Jersey behind us, we will work very, very hard to sell the Build Back Better agenda that the president has put forward that will really improve the lives of so many American people.
So I`m excited about that, and you know, I`m looking forward to tomorrow when we can proclaim both Governor Murphy and Terry McAuliffe as the winners of both of those very, very important elections.
O`DONNELL: Pramila Jayapal said today that she doesn`t believe that the delay and the slowdown and deadlock at times in the legislative process among Democrats in Washington has affected the campaign in Virginia. What is your response to that?
HARRISON: Well, I think it`s important for folks to see that Democrats are working together to move things forward, and that`s why we have to get these bills passed and done.
I do not -- I tell you what, as the chairman of the DNC, I do not want to go into the midterms into next year still worried about these bills. We`re going to get them done this week so that people know that we are delivering for them and that when we`re in office, that`s what we do.
Democrats deliver while the Republicans sit on the sidelines and obstruct and everything else that isn`t helpful to the American people.
O`DONNELL: Democratic Party chair Jamie Harrison, thank you very much for joining us tonight. We always appreciate it.
HARRISON: Thank you, Lawrence.
O`DONNELL: Tonight`s LAST WORD is next.
O`DONNELL: Tomorrow`s election day and that means tomorrow night is election night. And MSNBC special coverage of the governor`s races in Virginia and New Jersey along with all of the other important elections tomorrow night including mayor of New York City and mayor of Boston start right here at 5:00 p.m. Eastern with Nicolle Wallace and Steve Kornacki. Joy Reid and Rachel Maddow will join the coverage before the polls close in Virginia at 7:00 p.m. Eastern.
That is tonight`s LAST WORD. The voters will get the LAST WORD tomorrow night.
"THE 11TH HOUR WITH BRIAN WILLIAMS" starts now.