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Transcript: The Last Word with Lawrence O'Donnell, 11/12/21

Guests: Eric Swalwell, David Jolly, Maria Teresa Kumar, David Frum, E.J. Dionne

Summary

Former adviser to Donald Trump, Steve Bannon has been indicted by a federal jury in contempt of Congress for refusing to comply with a congressional subpoena. Rep. Eric Swalwell (D-CA) is interviewed and answers questions regarding Steve Bannon being indicted for being in contempt. In the end it took less than a month for Steve Bannon to be indicted on contempt charges for refusing to comply with a congressional subpoena. The Biden White House is preparing for a big bipartisan ceremony on Monday to sign the big bipartisan infrastructure bill.

Transcript

ALI VELSHI, MSNBC HOST: He was fined $25. He died in 1925 with that unjust conviction on his record and the knowledge that Plessy versus Ferguson, separate but equal was the law of the land.

Today we got proof that even though history might take a while to write itself, it usually does. And sometimes in some very surprising ways. An unlikely duo has been working together to clear Mr. Plessy`s name. They are the descendants of Homer Plessy and Judge Ferguson, the judge who ruled against him all those years ago.

Both sides joined together and petitioned the Louisiana Board of Pardons to clear Plessy`s record. And today, almost 125 years after his conviction that board voted unanimously to do the right thing. The pardon now goes to the governor for approval, and finally justice that`s been a long time coming.

That does it for us tonight. Rachel will be back on Monday. Now it`s time for the "Last Word." My friend Jonathan Capeheart is in for Lawrence tonight. Good evening, Jonathan.

JONATHAN CAPEHART, MSNBC HOST: Good evening, Ali. What a great way to end -- to end the show. I didn`t know that story. How fantastic.

VELSHI: We talk about Plessy vs. Ferguson all the time, the idea that Jonathan -- that Plessy never got his justice until today is a -- we don`t often get to end the show on nice things but that was a good one to do it on.

CAPEHART: Yes, and it`s a reminder that justice might take a while but eventually justice does happen. Ali, thank you very, very much. I`ll see you on Sunday.

VELSHI: Have a great show.

CAPEHART: All right. Breaking tonight, a federal grand jury has indicted former Trump advisor Steve Bannon on two counts of contempt of Congress. The indictment comes 22 days after the House of Representatives voted to send a criminal contempt referral to the Justice Department after Bannon refused to comply with subpoenas from the House Select Committee investigating the January 6th attack on the capital seeking deposition testimony and documents from him.

According to the indictment, "Bannon had not communicated with the Select Committee in any way since accepting service of the subpoena on September 24th." Attorney General Merrick Garland and the Department of Justice have been under immense pressure to hold Bannon accountable.

Tonight, Garland said, "Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law."

NBC News is reporting that Bannon is expected to turn himself into law enforcement on Monday. He`s scheduled to appear in court Monday afternoon. Bannon is facing up to one year in prison and a $100,000 fine.

Tonight Select Committee Chairman Benny Thompson and Vice Chair Liz Cheney said, "Steve Bannon`s indictment should send a clear message to anyone who thinks they can ignore the Select Committee or try to stonewall our investigation. No one is above the law. We will not hesitate to use the tools at our disposal to get the information we need."

Select Committee member Jamie Raskin said this about Steve Bannon`s indictment on MSNBC last hour.

(BEGIN VIDEO CLIP)

REP. JAMIE RASKIN (D-MD): Here we pursued criminal contempt and that`s just a crime. It was a criminal offense. He violated the law when he stood us up, when he blew off the subpoena. And he violated the law when he refused to produce the documents and the papers we were looking for.

But at the same time on a parallel track, if we bring a civil contempt action against him, the courts also have the power to compel him to testify and to bring us those documents. And if he doesn`t, he can be held, again, behind bars.

But he has the key to his own freedom as the contempt of bar says because all he has to do is testify and turn over the documents and he can get out of jail on the civil contempt side. But on the criminal contempt side if he`s found guilty he could be sentenced to jail or to probation, work some other kind of diversionary punishment.

(END VIDEO CLIP)

CAPEHART: Leading off our discussion tonight Democratic Congressman Eric Swalwell of California. He served as House Impeachment Manager during the second impeachment -- second impeachment trial of Donald Trump. Congressman Swalwell, welcome back to the "Last Word." You were part of both impeachment investigations in the Trump era. What do you make of this indictment?

REP. ERIC SWALWELL (D-CA): There`s a new sheriff in town, frankly, Jonathan and that the rule of law matters again in America. Look, for the last couple of years Steve Bannon has run around like a thug in a movie where the gang has the police and the local judge in their pocket, and he`s acted as if he could, you know, act with impunity and laws didn`t matter, almost like he was a pirate in international waters. And he never hid the fact that he believed that, really just defying the law.

[22:05:00]

And being pardoned by Donald Trump for bilking many Americans out of their hard earned money when they thought it was going to building the wall. And then, of course, just recently not showing up when he was supposed to for this January 6th committee.

But we`re not seeking this contempt order and we`re not celebrating Steve Bannon, you know, being indicted because he`s a bad guy, and Jonathan, he`s a bad guy. This is important because what happened on January 6th could happen again.

And if we don`t understand who was around the president, who financed what happened on the 6th, what the mind-set of the president was, this will happen again. And so this is, you know, the beginning of getting to the bottom of what happened.

CAPEHART: You know, there was a lot of concern on lots of shows on this network and among a lot of people about the fact that it was "taking too long," taking Attorney General Merrick Garland too long to do what he ended up doing today. Did you think that the attorney general took too long or did he walk through the process at the pace that it needed to be done?

SWALWELL: I didn`t think he took too long, and I was not in the camp that was too worried. I frankly appreciated having an attorney general who was independent again. And I was going to reserve judgment until a decision was made on this, and I think the right call was made.

And now the question is for Mark Meadows and so many other of the president`s enablers on January 6th. Do you want to go the way of Bannon and be indicted and be hauled into court, or do you want to cooperate? And if you don`t want to cooperate, Jonathan, then we should just draw the inference that you`re not cooperating because you`re protecting the guilt of Donald Trump or you`re protecting the guilt of yourself.

CAPEHART: So, Congressman Swalwell, do you think we are putting too much emphasis on this indictment of Bannon? I`m just wondering, does it bode well for the Select Committee investigating, waiting for more testimony and documents in a court ruling on executive privilege that what the Justice Department did to Bannon is going to send this -- really, truly, send the signal that will be heeded by all these other people that got slapped with subpoenas this week.

SWALWELL: Yes, it bodes well for justice. You know, this isn`t about red team versus blue team. This is about whether the rule of law matters anymore and whether people around the former president are above the law or if they have to follow the same laws that you and I have to follow.

And the department signaled today for first time in nearly 40 years that if you defy a congressional subpoena, you will be held to account. And now those dozens of others who have indicated they`re not going to come in or who have not come in, my money is, Jonathan, they`re going to be ringing the phones of the Select Committee over the weekend to try and schedule their appearances.

CAPEHART: You know, last night on "All In," Eric Holder, the former attorney general explained the difference between subpoenaed witnesses not testifying in the January 6th investigation and why he did as attorney general. Let`s listen.

(BEGIN VIDEO CLIP)

ERIC HOLDER, FORMER UNITED STATES ATTORNEY GENERAL: I`ve testified nine times in connection with Fast and Furious, knowing that it was a kangaroo court that I was going before, but out of respect to the institution, out of respect to Congress, I thought that I had to go. In spite of the fact that Darrell Issa, Louie Gohmert and the other idiots on the oversight committee were doing things that were inconsistent with their oaths.

It was all political. I understood that, but I didn`t think as attorney general that I could refuse to go. I didn`t need a subpoena. They didn`t require to request a subpoena. If they asked me to come, I showed up. And, you know, as I said on nine occasions I did that.

(END VIDEO CLIP)

CAPEHART: Do you think that was a consideration for DOJ that this wasn`t a good faith refusal of a subpoena but an attempt to nuke the process?

SWALWELL: Yes. And it was a continuation of what had happened under the prior administration in the Russia investigation when Don McGahn would not cooperate with the Judiciary Committee around what he had seen as far as obstruction of justice by the president in the first impeachment of Donald Trump as it related to the Ukraine scandal.

And of course, in the second impeachment where witnesses told us if we subpoenaed them they wouldn`t come in. So this was the pattern of the Donald Trump administration. And now, again, there`s a sheriff in town that says the rule of law matters.

And this matters, Jonathan, because the temperature is rising in America. We have a Republican Party that believes and is more comfortable with violence than voting. And as we go into the mid-terms, if we don`t have a rule of law that matters, this party who is bankrupt and void of any ideas to make anyone`s life in America better, they will seek to use violence if we don`t inoculate ourselves as Americans and as institutions against what`s coming.

CAPEHART: You know, before I let you go, Congressman Swalwell, given what happened to Steve Bannon today, being indicted. What do you think Mark Meadows, the former White House chief of staff, who was supposed to appear today and didn`t, what do you think is going through his mind right now? What do you think he`ll do?

[22:10:00]

SWALWELL: He`s wondering, what`s the fastest way to get a hold of the Select Committee and schedule his appearance. Again, Mark Meadows, look, there`s no honor for anyone that defies a subpoena. But, you know, Steve Bannon is pretty evil and we dealt with him during the Russia investigation. He was almost like the joker in the Batman movie.

Mark meadows, I`ve dealt with him, too. That guy doesn`t have any principles. He only thinks about himself. I`m not thinking if he`s going to go the way of Bannon. I think he`s going to fold quite quickly and the Select Committee will hear from him probably pretty shortly.

CAPEHART: All right, Congressman Eric Swalwell of California, and also belated congratulations again on baby Hank.

SWALWELL: Oh, thank you. Thanks so much, Jonathan. Have a good night.

CAPEHART: Have a good night. Joining us now are Cynthia Alksne and Glenn Kirschner, both federal former -- former federal prosecutors and MSNBC legal contributors. Welcome back to the "Last Word." Quick reactions from two Justice Department veterans.

Cynthia, I`m going to start with you. Take a look at the deposition calendar for subpoenaed witnesses. Do we have it? Is it going to come up? There it is. If you notice, Cynthia, from November 29th through December 15th with very few exceptions every day there is someone who is due to give -- due to provide deposition testimony in the January 6th Select Committee. Do you expect this indictment of Bannon, do you expect this will expedite cooperation from some of these people?

CYNTHIA ALKSNE, MSNBC LEGAL ANALYST: I do expect that it will expedite cooperation. And that`s really the most important thing about it because who are we kidding? Steve Bannon is never going to give any testimony. He`d rather rot in jail and then later make money and fund raise off of it. So, I don`t think we`re ever going to get testimony from Bannon, but its value was really is to push those people who were on the fence like, do I really want to fight this battle.

The second tiered people, those are the ones that will really make a difference. You know, Kaleigh McEnany is never going to give you anything of any value. Mike Flynn is never going to give you anything of value. But it will push those people who know something about what happened at Willard, who knows something about what happened in the communications between the members of Congress and the White House and what was going on during the insurrection and who paid for the insurrection and who paid for the buses and who paid for all that. It`ll make a difference for them. And that`s why I think it`s really of value today.

CAPEHART: Glenn, Steve Bannon can afford to pay lawyers for as long as it takes, but are other witnesses willing to bear that cost?

GLENN KIRSCHNER, MSNBC LEGAL CONTRIBUITOR: You know, I can`t imagine that now that Steve Bannon has been criminally indicted actually for two counts for contempt of Congress, one for defying their subpoena to produce documents and a second for just thumbing his nose at Congress and declining to even show up. You know, he`s facing up to two years in prison.

So I have to believe that the other witnesses, even people like Stephen Miller whom is scheduled to appear and was yucking it up with one of the hosts of the Fox Entertainment Network the other night, laughing about how, oh, you`re not going to comply. You`re not going to appear pursuant to a Congressional subpoena.

I have a feeling those people are now going to think twice before running the risk of being criminally indicted, tried and ultimately potentially imprisoned. So, I think this will have an important impact on the House Select Committee investigation moving forward.

CAPEHART: I want to get both of you on this, and I`ll start with you, Cynthia. Steve Bannon is arguing for executive privilege as an excuse to not comply with Congress.

And according to the indictment and I`ll read this, "Steven K. Bannon was a private citizen for approximately seven months in 2017, more than three years before the events of January 6th, 2021, Bannon was employed in the executive branch of the U.S. government as the Chief Strategist and counselor to the president. After departing the White House in 2017, Bannon did not work again in any executive branch or federal government position."

So, Cynthia, can Bannon prove his refusal to comply was in good faith using executive -- using the executive privilege argument following the advice of his lawyer?

ALKSNE: I don`t think he can. But before we get too far on that, let me say I think there is an -- there is somewhere in the executive privilege argument for people who work outside the government. I mean, just imagine if Biden decided he was going to ask Obama for some advice and Obama had not been in the White House for a long time. I mean, I think there is room in the executive privilege argument if speaking to somebody outside of government.

[22:15:01]

But that doesn`t apply here. "A," he didn`t show up and assert it. "B," he never followed through when he was supposed to do the documents. "C," he never answered questions about everybody else he had contacts with in the war room.

So, I don`t think it`s going to work here, but I don`t think we can make a blanket statement that whenever anybody isn`t working in the government there can`t be executive privilege.

CAPEHART: And, Glenn, real fast, so, a lot of the people who were given subpoenas this week particularly on Tuesday were people who were working for Donald Trump, who were with him on January 6th when he was still president. Does the executive privilege argument apply to them? Can they exert executive privilege?

KIRSCHNER: You know, the people who were actually in the administration at the time, and you know, during the time of January 6th, you know, they will have a somewhat more viable claim than Steve Bannon. Steve Bannon could have just said I`m invoking magical unicorn privilege and it would be just as compelling as an executive privilege claim.

Not to mention, Jonathan, all of these people including the ones who were in the administration at the time, cannot invoke executive privilege to cover up conversations involving the attempted overthrow of the United States government because that would be very similar to a crime fraud exception.

The executive privilege protection was not designed to be invoked to hide attempts to overthrow the government. I think with today`s indictment, this is virtually the Department of Justice saying to Steve Bannon hey, Steve Bannon, come to D.C. on Monday for your arraignment. We`ll be wiled (ph).

CAPEHART: That was a good one, Glenn. Glenn Kirschner, Cynthia Alksne, thank you both very much for joining us tonight. We have much more on this breaking news coming up.

But first, Donald Trump, of course, sympathizes with the capitol attackers who were chanting to kill Mike Pence. That`s next.

(COMMERCIAL BREAK)

[22:20:00]

CAPEHART: Here`s a quote that will stop you in your tracks. "The Republican Party is mainstreaming menace as a political tool." That`s how historians described it to "The New York Times," but you don`t need scholars telling you that. You can see the menace all around the U.S., against elected officials, school board members and health care professionals.

It`s the growing embrace of Trumpian rhetoric. The kind of rhetoric we saw inside the capitol insurrection. Of course, the fish rots from the head. So, to understand just how bad it`s gotten inside the Republican Party, look no further than their fearless leader, Donald Trump, who we learned today defended the insurrectionists who wanted to kill his own vice president.

(BEGIN AUDIO CLIP)

JONATHAN KARL, ABC NEWS CHIEF WASHINGTON CORRESPONDENT: Were you worried about him during that siege? Were you worried about his safety?

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES OF AMERICA: No, I thought he was well-protected. And I had heard that he was in good shape. No, because I had heard he was in very good shape. But, but -- no, I think --

KARL: Because you heard those chants, that was terrible. I mean, you know, the --

TRUMP: He could have -- well, the people were very angry.

KARL: They were saying hang Mike Pence.

TRUMP: Because it`s common sense, Jon. It`s common sense that you`re supposed to protect. How can you -- if you know a vote is fraudulent, right, how can you pass on a fraudulent vote to Congress?

(END AUDIO CLIP)

CAPEHART: And joining us now, Maria Theresa Kumar, President and CEO of Voter Latino and an MSNBC contributor. And former Congressman David Jolly. He left the Republican Party in 2018. He`s now the national chairman of the Serve America Movement and an MSNBC political analyst. Welcome both to the "Last Word." David, I`ll start with you. Defending violence, how low will your former party go?

DAVID JOLLY, FORMER REPUBLICAN CONGRESSMAN, LEFT REPUBLICAN PARTY IN 2018: Yes, Jonathan, very importantly, Donald Trump has created a permission structure of violent behavior within today`s Republican Party. And that`s not to say the entire Republican Party, certainly not. But they have invited into the Republican coalition under Donald Trump`s leadership largely white, largely male right-wing sympathetic extremists that the Department of Homeland Security and our domestic intelligence agencies have identified as a domestic violent threat.

And so what you see in those conversations with Jonathan Karl and otherwise is not simply a former president making it all about himself suggesting that there are constitutional scholars who wrongly think that the election was stolen from Donald Trump, but what you see is somebody refusing to condemn that the potential hanging of the vice president, and in doing so, extends this permission structure towards further violence.

And I think that`s the greatest concern is what our federal agencies have identified that we could see additional violence and perhaps even the loss of life as a result of rhetoric and the permission structure created by Donald Trump.

CAPEHART: Right. And Maria Theresa, I know, you know, I don`t want to, you know, down-play what Donald Trump is doing because it`s reprehensible, but you know who shouldn`t be left off the hook? Kevin McCarthy. I would just love to know your thinking on The House Minority Leader, the leader of the Republican conference in the House and the incredible silence we have heard from him after this week, after Paul Gosar, after Marjorie Taylor Green calling the 13 Republican members who voted for the bipartisan infrastructure bill traitors. He said nothing. Doesn`t that add to the permission structure that David is rightly warning about?

MARIA TERESA KUMAR, VOTO LATINA, PRESIDENT & CEO: Absolutely. And if you look at Kevin McCarthy, his own act, his own words, he peddles in this violence. He jokingly said that he was going to throw a gavel at Pelosi the moment that he became speaker. And it sounds funny, but this is not -- has the qualms (ph).

[22:24:59]

This is more past the more saying you are signaling what is acceptable. And this whole idea of creating and using words against your fellow colleagues would not be acceptable, Jonathan, in any other workplace. And we do not have to look too far in our past to recognize that when violence is used online it does translate into tragedy.

We only have to think of what happened in El Paso. We only have to think of sadly what happened in the Tree of Life synagogue, and the list goes on in short order of what happened when Donald Trump did the exact same thing.

And every single person that has created such chaos and created the most recent memory of violence has cited reading and be inspired by what Donald Trump said on his social platforms. And so, it really is on the leadership of the Republican Party to say this is not acceptable because the moment you`re no longer talking about policy and discourse, it becomes an erosion of democracy and a due erosion of trust.

CAPEHART: David, I want to show you some polling data that is scary. Polling finds that 30 percent of Republicans and 40 percent of people who most trust far right news sources believe that "true patriots may have to resort to violence" to "save the country." What do you fear could happen as we approach 2022 and 2024?

JOLLY: Here`s my great fear about where the Republican Party has gone, Jonathan. It`s a very important nuance. You know, from recent history the debate between the two major parties has been over essentially fairness and policy, whether ladders of opportunity are elevating people or taking away from others, marginal tax code, education, whatever it might be.

Today`s Republican Party particularly under Donald Trump, supported by McConnell and McCarthy and others is now suggesting to -- to their voters that something is being taken from you. Your freedom is being taken from you. Your place in society, your privilege. Something is being taken from you.

And once that narrative sets in, then that gives you permission to do whatever it takes to protect yourself. And that is the power that Donald Trump and today`s Republicans have tapped into. And to Maria Teresa`s point, it is up to Kevin McCarthy and other Republican leaders to say no, that is not the direction of this party. But they haven`t chosen to stand up to this. And that`s why the scoring goes beyond Donald Trump, but to the entire architecture of today`s Republicans in Washington.

CAPEHART: Right. And Maria Teresa, the GOP hasn`t really seen a backlash to the extremist tone at least not at the polls. So, do you think there will ever be an incentive to change?

KUMAR: I think that when you see what David Jolly has done, what Steve Schmidt has done, when individuals that are part of the Republican Party who are trying to sound the alarm and saying we are no longer talking about policy, we are talking about cultural ideology that is not part of our traditional political spectrum, that is what we have to elevate.

The idea you have so many Republicans that have been historic Republicans saying this is not the party I identify with, you know, leaving the party, I`m no longer running for office, we should sound the alarm bell. We are no longer talking about what is the difference between the left and the right.

We are talking about what is democracy and what is autocracy. And sadly, Kevin McCarthy by staying silent, Mitch McConnell by staying silent, they are espousing autocracy at all costs. And that is not only anti-Democratic, but in the beginning it may sound like it`s a nice idea for a few and the powerful.

But when that comes to roost at your doorstep, then it`s going to be harmful not just for the minority rule but for the majority of Americans. And that is really what we`re facing right now.

There was a great piece today talking about Jay Rosen, talking about how we have to start speaking very clearly, how unusual and how out of the party system the Republicans currently are talking because it is going to erode our democracy and it is going to be, again, a fight between democracy and autocracy and now is the time to stand up.

CAPEHART: Maria Teresa Kumar, David Jolly, thank you for joining us tonight.

JOLLY: Thank you, Jonathan.

CAPEHART: Coming up, did Attorney General Merrick Garland show that he is ready to meet the moment when it comes to the assault on our democracy perpetrated in large part by the former president? We`ll discuss, next.

(COMMERCIAL BREAK)

[22:33:31]

CAPEHART: In the end it took less than a month for Steve Bannon to be indicted on contempt charges for refusing to comply with a congressional subpoena. That`s not that long, but in the interim many experts were running out of patience. After four years of Trump world lawlessness where was the Justice Department`s response?

Here`s Harvard Law professor Laurence Tribe with Lawrence earlier this week.

(BEGIN VIDEO CLIP)

LAURENCE TRIBE, PROFESSOR, HARVARD LAW SCHOOL: The case is clear. The statute says that when Congress refers someone who is in contempt of Congress, refers them to prosecution, a U.S. attorney should convene a grand jury.

When congress returns a contempt citation and asks the Justice Department to perform its constitutional function, there is just no excuse for any further foot dragging.

(END VIDEO CLIP)

CAPEHART: Before Bannon was indicted former attorney general Eric Holder made the point that the Justice Department needs to keep in mind that what the select committee is investigating, the attack on the Capitol, the attack on our democracy is fundamentally different from other congressional investigations.

(BEGIN VIDEO CLIP)

ERIC HOLDER, FORMER U.S. ATTORNEY GENERAL: Ultimately, this will be a decision I suspect will be made by the attorney general. They`ll apply the facts. They`ll look at the law.

My hope would be that people will understand that this is different. This is different. This isn`t fast and furious with some kind of political dispute.

[22:34:59]

HOLDER: This is about people who were trying to stop the transfer of power in our -- in our government, people who were attacking our democracy. This is fundamentally different.

(END VIDEO CLIP)

CAPEHART: And here again is what Merrick Garland said today. "Since my first day in office I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law. Today`s charges reflect the department`s steadfast commitment to these principles."

Joining us now are David Frum, senior editor at "The Atlantic", Jonathan Alter columnist for the Daily Beast and an MSNBC political analyst.

David Frum, what does this indictment signal? Confidence Merrick Garland is up to the task of defending an attack on democracy?

DAVID FRUM, SENIOR EDITOR, "THE ATLANTIC": Contempt of Congress cases are rarely brought and are hard to win. And I think a lot -- I understand why there are a lot of people want to be very cautious about advancing with this one.

I think it`s less important to measure whether Merrick Garland filled the role than for people to begin to understand what`s ahead because there`s a kind of incompatibility of world views.

Bannon is a trickster. He`s a jokester. He`s going to be Abbie Hoffman playing in the courtroom of "The Chicago Seven". This is his opportunity. And he doesn`t use law the way the Justice Department and Merrick Garland do. It`s asymmetrical combat and it may go in very unexpected directions that Bannon and the Trump people behind him are going to be ready to weaponize and exploit.

CAPEHART: You know, Jonathan, one thing we`ve heard repeatedly from judges in the cases of January 6th rioters is that punishments must serve as deterrents. Do you think this Bannon indictment deters others in this investigation?

JONATHAN ALTER, MSNBC POLITICAL ANALYST: Yes, I mean I think that will clearly incentivize at least some of the others who have been subpoenaed to comply because, you know, even if the penalty comes out to, you know, one month in jail, which is what sometimes what it can be in these kinds of cases -- who wants that?

I mean, you know, if you`re, say, the -- the secretary McCallum who, you know, was doing the robocalls, telling state legislators to take part in the coup attempt, do you really because you followed someone`s orders and made those robocalls, do you really want to go to jai for that?

So I think a lot of the witnesses will testify. You know, I`m not sure how much use they`ll be. But I think one of the important things that today signifies is that Merrick Garland, who everybody knows is a straight shooter is not going to use the fear that maybe Trump or others could be turned into martyrs or somehow make us look like a Banana Republic if he arrests people.

He`s not going to worry about those appearances. He will apply the law fairly. He will execute the law. He reminds me of somebody else like me from the Chicago area, Edward Levi, who Gerald Ford appointed attorney general after Watergate. A pillar of integrity who restored the integrity of the Justice Department after John Mitchell and Richard Kleindienst have besmirched it.

And so Garland is the institutionalist. He will follow the law. I agree with David that there are going to be some curve balls here. There are going to be some tricky things for them to handle. But his north star is just to enforce the law and uphold the rule of law.

So any time he`s in doubt, he`ll just go back to first principles and I think that`s refreshing.

CAPEHART: Right. I was going to say after four years of Trump it is good to have an attorney general who is independent and follows the -- follows the law rather than the phone ringing from 1600.

David, one trauma the country endured during Trump is the total inability of any law or check and balance to stop him. He tried. He`s still trying to destabilize our democracy, and there`s been no penalty for it, none.

FRUM: I remain unoptimistic on that point. And I think one of the things that has been a problem -- and the discussion we`re having tonight is an example of this. That conscientious legally, constitutionally minded people want to deal with political problems with legal solutions.

And that`s why you bring on all these former federal prosecutors and that`s why you say, you know, what does rule this say and case that.

[22:39:53]

FRUM: But Trump has been from the beginning a political challenge and his opponents have tried to meet that challenge with legal answers, and it hasn`t worked. Maybe it`ll start working better in the future. I hope so, but I doubt it.

CAPEHART: Real quickly David, just to pick up on -- Jonathan, just to pick up on what David was saying about, you know, folks trying to meet the political problem that is Donald Trump in that movement with legal -- with legal solutions. Is there a political -- a political fight that could be had other than at the ballot box that could neutralize the menace that`s coming from the right?

ALTER: Well, I`m not sure it can neutralize it, but I think the committee needs to have more public hearings like they did during Watergate.

They`ve had one so far where they had the Capitol police officers. That was a very moving hearing. A lot of the rest of these folks should be hauled before the cameras, and we should hear the questioning so that there`s an education that goes on.

You know, it`s come out over the last few weeks. People watching this show understand it. But there was a coup attempt in our country, you know. And the president of the United States when told that a mob wanted to hang his vice president said, no sweat, I`m not going to get involved for three and a half hours when his vice president was in physical danger.

I mean, there are really cataclysmic world historical events that took place. And we haven`t had the public education of that that we should.

And I`m puzzled as to why we haven`t. There`s still time to do it. And so I agree with David that the legal process has to continue. But the members of the committee, Democrats and Republicans, have to get smarter on the public education front.

CAPEHART: Right. Because as we`re seeing there on the screen, that was a failed coup attempt. But the joke goes, what do you call a failed coup? Practice.

ALTER: Yes.

CAPEHART: David Frum, Jonathan Alter, thanks for joining us tonight.

Coming up, infrastructure week, the sequel. It starts Monday. That`s next.

[22:42:09]

(COMMERCIAL BREAK)

CAPEHART: The Biden White House is preparing for a big bipartisan ceremony on Monday to sign the big bipartisan infrastructure bill. Ok. Mitch McConnell says he won`t attend, but Republican Senators Susan Collins and Lisa Murkowski reportedly will.

And the action doesn`t stop there. Speaker Pelosi sent a "dear colleague" letter tonight push ahead on part 2 of the Biden agenda which was held up last week because it didn`t have a final estimated price tag.

Pelosi writes, "We are on a path to be further fortified with numbers from the Congressional Budget Office. We expect three additional reports by Monday.

As always we thank our committee chairs for their leadership as we work together to advance the president`s Build Back Better plan."

Also next week President Biden is heading to swing states to talk about roads and bridges. New Hampshire on Tuesday and Michigan on Wednesday.

Joining us now is E.J. Dionne, columnist for "The Washington Post" and a senior fellow at the Brookings Institution.

Hey, E.J. I started the morning with you and I`m ending the day with you.

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CAPEHART: This is fantastic.

E.J. DIONNE, COLUMNIST, "WASHINGTON POST": I just said the same thing to Steve, your producer. I`m very happy to do that.

CAPEHART: All right, we don`t have a whole lot of time so the big ceremony and an infrastructure tour in addition to promoting publicly what`s in the bill. Does it help get Build Back Better over the finish line by reminding Democrats what it`s like to win and deliver and to take control of the narrative?

DIONNE: That`s exactly right what you just said, that they need to grab the narrative back. And they need to -- they need issues at the center of the debate that are issues where Americans agree with them.

And I think it`s easy to forget you say the government always builds roads and bridges. It`s been a long time since a really big infrastructure bill has gotten through Congress.

Throughout this period I followed a Congressman named Steve LaTourette, a Republican from Ohio. He said he left Congress in 2013 because we can`t even build highways anymore.

Well, guess what? They`re building highways. They`re building broadband. They`re building bridges. They`re building transit. And so I think the White House is right to have a big ceremony here. And I think that winning begets winning.

And I think it`s significant as you suggested at the top of the show that Pelosi is out there now telling her members, ok, we did this once we can do it again.

And despite all the talk about where Joe Manchin is today or yesterday or tomorrow, I just don`t think he wants to sink president Biden`s program, you know the second key part of his program. So I think eventually he`s going to be there.

CAPEHART: All right, so that`s JOE MANCHIN. SO you saved me a question.

I want to read you this reporting from CNN about the look ahead to the reconciliation vote. And here`s what they report. "While Democrats are uncertain where Manchin will come down, they are far more reassured that Arizona Senator Kyrsten Sinema, the other leading moderate, will ultimately back the sweeping expansion of the school safety net.

A closed door meeting of House and Senate Democrats late last month in the Senate between Jayapal, Colorado Congressman Joe Neguse, along with Senator Brian Schatz of Hawaii, went a long way toward reassuring progressives that Sinema will ultimately vote for the package, according to multiple Democrats."

E.J. Dionne, are you similarly reassured that Kyrsten Sinema is onboard?

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DIONNE: I am. And in fact, on this show with Lawrence a couple of weeks back Congresswoman Jayapal spoke of a very productive meeting she`d had with Sinema. Sinema at that moment wasn`t ready to say she was going to vote for this thing.

But you`ve heard from lot of people in and around the White House that when she sat down with them, she was actually serious about negotiating.

And so I think after a very long and complicated journey, she seems to want to land with the rest of the Democrats on this.

And let`s face it. This is half the size, roughly, of what they hoped for. So the progressive Democrats have gone a long way to reassure Manchin and Sinema by giving them a bill of the size they`ve always said they wanted.

So yes, I think she`s giving them the reassurances they need.

CAPEHART: That`s interesting. Well, time will tell E.J. Dionne. We`ll find out next week, maybe this time next week whether you`re right.

E.J. Dionne, thanks again for joining us tonight.

DIONNE: Great to be with you.

CAPEHART: Coming up, less than two weeks away from Thanksgiving, and COVID cases are rising in the north including the highly-vaccinated north east. Are we in for another pandemic winter? That`s next.

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CAPEHART: With kids as young as 5 now getting their first doses of the COVID vaccine, and boosters available for many adults, are we finally close to the end of this pandemic. Or is another winter surge on the way?

A new piece in "Scientific American" tells us quote, "COVID surged to its highest levels last winter, killing nearly 250,000 people in the U.S.. This winter the country should fare better, thanks to vaccines. But more than 40 percent of the U.S. population is not fully vaccinated. And more than 30 percent have not received any doses.

That`s more than enough to sustain a raging pandemic, with a really transmissible virus, evolutionary biologist Vaughn says."

Joining us now is Dr. Kavita Patel. She was a White House policy -- White House health policy director during the Obama administration, she`s a clinical physician, a Brookings Institution fellow, and an MSNBC medical contributor.

Dr. Patel, could this years winter surge be as bad as last year`s?

DR. KAVITA PATEL, MSNBC MEDICAL CONTRIBUTOR: No, it`s not. But certainly if you`re in about 17 states in the United States, it does feel pretty bad. But the numbers overall, they`re declining, and in some of the parts country, unfortunately increasing, but nowhere near to the peaks.

And we`ve experienced our delta peak overall as a country. Nowhere near as bad as last year and as you said, thanks to vaccines.

Hopefully these next two months will determine how bad it could get if we don`t heed some lessons from other countries. And in parts of the states that are heavily vaccinated but still experiencing cases.

CAPEHART: When you say heed lessons from other countries, is there one that comes to mind right away?

DR. PATEL: Well, I think the U.K. gets a lot of attention. But it`s actually because they have an incredible public health reporting system. We get incredible amounts of data and reporting, genetic surveillance. And what we`re seeing there though is playing out over Europe, the Netherlands, Germany, Singapore, in fact.

And it looks like it`s a combination, Jonathan of waning immunity. Immunity was never meant to be life-long. And especially with viral vaccines, for a novel virus, I`m not shocked that need boosters.

It doesn`t mean the vaccines don`t work. It`s actually just what we`ve done with anti-viral vaccines. So number one, waning immunity.

And then, Jonathan, you`ve seen and I think you`ve had clips before from Europe. People are not wearing masks. Ventilation is not discussed as much as it should be. And we know that ventilation and well-fitting masks can be the best mitigation measures, especially when a large number of people are unvaccinated or you don`t know their vaccination status.

CAPEHART: So then, should we be concerned about the travel restrictions that have been loosened for Europe?

DR. PATEL: I think that yes, I`m always concerned. I don`t think that travel bans as a policy measure are the most effective. So it was reassuring, Jonathan, to see the vaccine requirement and the testing requirement.

I really actually would be even more relieved if I could see something equivalent on the domestic side. And as we`re going into the holiday season, look at what happens in quote, "normal holiday seasons", we do see kind of an urban to rural -- rural to urban travel pattern.

That`s the exact type of travel pattern that could set us up for a different kind of spread, different from last year, because of delta and different because we`ll have mixed households with vaccines, most vaccinated, maybe some not.

So paying attention to who you`re sharing meals with could be a really important factor this winter.

CAPEHART: And real fast, Dr. Patel. We`re seeing kids getting shots and adults getting boosters. Is there still a chance we could avoid altogether a surge?

DR. PATEL: Yes, there is. It`s never too late. We can do this as a collective but it does take efforts to get people who are unvaccinated vaccinated. And Jonathan, to pay attention, if it`s your time to get a booster, you should go ahead and do that especially in the cold season when we`ve got a very highly infectious virus running around.

CAPEHART: Well, I`m going to raise my hand, Dr. Patel. I got my booster yesterday. So I`m fully covered. But I`m not going anywhere for Thanksgiving.

Dr. Kavita Patel, thanks for joining us tonight.

That is tonight`s LAST WORD.

If you tuned in tonight to see the encore presentation of "FOUR SEASONS" total documentary about the most bizarre press conference in the history of modern politics, you can catch that Sunday night 11:00 p.m. on MSNBC.

And you can catch me on "THE SUNDAY SHOW", 10:00 a.m. Eastern on MSNBC.

MSNBC has much more on today`s big breaking news tory.

"THE 11TH HOUR WITH BRIAN WILLIAMS" starts now.

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BRIAN WILLIAMS, MSNBC HOST: Well, good evening once again.

Day 297 of the Biden administration.