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Transcript: The Last Word with Lawrence O'Donnell, 12/1/21

Guests: Lauren Tribe, Cecile Richards, Elizabeth Warren, Adam Schiff

Summary

The Supreme Court heard arguments in Mississippi abortion case today. Interview with Sen. Elizabeth Warren (D-MA). Tonight at the very last minute former Trump Justice Department official Jeffrey Clark tried to avoid being cited for criminal contempt of Congress by suddenly offering to testify to the House Select Committee investigating the January 6th attack on the Capitol. Former Senator Claire McCaskill is also a former prosecutor and she has grown a bit impatient with way the Justice Department is helping to enforce the January 6th committee`s subpoenas.

Transcript

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.

And guess what this is. Laurence Tribe, Cecile Richards, Elizabeth Warren, Adam Schiff, Claire McCaskill. That is just one TV show we`re going to do right here in this hour with all of those people.

RACHEL MADDOW, MSNBC HOST: Wow. And you. And you, too.

O`DONNELL: Well, I have to get out of the way. They have important things to say. I just have to turn on their microphones. It`s one of those nights

MADDOW: I will get out of your way so you can get out of their way my friend.

O`DONNELL: Thank you, Rachel.

MADDOW: Thanks, Lawrence.

O`DONNELL: Thank you.

Well, the Supreme Court of the United States today, the solicitor general of the state of Mississippi kept insisting with the apparent agreement of Republican appointed justices that the Constitution does not include a right to abortion. But the two women lawyers in the courtroom today defending the right to abortion as specified in the Supreme Court`s 1973 decision Roe vs. Wade insisted that the right to abortion is in the foundational documents of the United States of America.

First, in the Declaration of Independence. We hold these truths to be self- evident that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. And then in the very first sentence of the Constitution, the Founders wrote, we the people of the United States in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity do ordain and establish this Constitution of the United States of America.

The only word that appears in both of those sentences, in both of those documents and those sentences, the only word, the only right promised in both of those sentences is liberty.

(BEGIN AUDIO CLIP)

JULIE RIKELMAN, CENTER FOR REPRODUCTIVE RIGHTS: For a state to take control of a woman`s body and demand she go through pregnancy and child birth with all the physical risks and life altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman`s right to make this decision until viability protects her liberty while logically balancing the other interests at stake. To avoid profound damage to women`s liberty, equality, and the rule of law, the court should affirm. If this court renounces the liberty interest recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from the principles of stare decisis.

The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to fully participate in society. The court should not overruled the central component of women`s liberty.

(END AUDIO CLIP)

O`DONNELL: Liberty is the word Republicans use to describe being able to buy as many guns as they want and take those guns wherever they want. Liberty is the word Republicans use for the right to leave guns lying around the house so that high school boys can pick one up and take it to school and create our next mass murder event. And Republicans tell us there is absolutely nothing we can ever do to stop mass murder in our schools because of the liberty granted to us by the Constitution to have more guns than people in this country.

One of those guns that Republicans insist is a trophy of American liberty was used to kill four students in a Michigan school yesterday and wound seven. But today, the Republican side of the argument in the Supreme Court did not use the word liberty. The opponents of abortion on the Supreme Court today argued that because the word abortion is not mentioned in the Constitution, the Supreme Court should have no role in establishing abortion laws. That should be left entirely to the states.

(BEGIN AUDIO CLIP)

JUSTICE BRETT KAVANAUGH, SUPREME COURT: To be clear, you`re not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion as I understand it, correct?

SCOTT STEWART, MISSISSIPPI SOLICITOR GENERAL: Correct, Your Honor.

KAVANAUGH: As I understand it, you are arguing the Constitution is silent and therefore neutral on the question of abortion? In other words that the Constitution is neither pro life nor pro choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate?

(END AUDIO CLIP)

O`DONNELL: That provoked Senator Warren today to say that Congress should pass a law establishing the principles of Roe vs. Wade as the law of the land in statute. Senator Warren, a former Harvard law professor will join us in our discussion of this case tonight.

If any combination of the three Supreme Court justices appointed by the two Presidents Bush and the three Supreme Court justices appointed by Donald Trump, decide to overturn Roe vs. Wade and make each state the final authority on abortion law, nothing will actually change for most women in America because the populations of the states that will not restrict abortion in any way are significantly larger than the states that might restrict or ban access to abortion.

At this point in our history, Roe versus Wade is simply protecting the women in very Republican states, protecting their liberty. In truth, Roe versus Wade is really only protecting the women in those states who cannot afford to travel to New York or California or Illinois or one of the many other states that will always safely and responsibly provide abortion services.

No one rich in Mississippi will be affected by any change in this law. No Republican woman, rich woman in Mississippi, not one Republican rich daughter in Mississippi would ever be affected by the change in the law that the state of Mississippi is asking the court to approve. It would just be economically disadvantaged women in Mississippi who would then find themselves struggling to somehow come up with the money to be able to travel to another state in the pursuit of liberty.

Justice Sonia Sotomayor made the point about how many Supreme Court justices including Republican appointed Supreme Court justices have supported Roe vs. Wade over decades and what it will mean if the current Republican Supreme Court justices decide to overturn it.

(BEGIN AUDIO CLIP)

JUSTICE SONIA SOTOMAYOR, SUPREME COURT: The right of a woman to choose, the right to control her own body has been clearly set since Casey and never challenged. You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years have -- or I should say 30 since Casey -- have reaffirmed that basic viability line. Four have said no, two of them members of this court. But 15 justices have said yes, of varying political backgrounds.

Now the sponsors of this bill, the House bill in Mississippi, said we`re doing it because we have new justices. The newest ban Mississippi has put in place, the six-week ban, the Senate sponsor said we are doing it because we have new justices on the Supreme Court. Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts? I don`t see how it is possible.

(END AUDIO CLIP)

O`DONNELL: Leading off our discussion tonight is Laurence Tribe, university professor of constitutional law emeritus at Harvard law school. He has won 35 cases in the United States Supreme Court.

Professor Tribe, thank you very much for joining us tonight.

I want to basically give you an open mic to respond to what you heard today in the Supreme Court but begin if you will with this one point. Is this the first time, it is the first time I remember hearing an argument in the Supreme Court about taking a right away from people.

LAURENCE TRIBE, CONSTITUTIONAL LAW PROFESSOR, HARVARD LAW SCHOOL: You`re right, Lawrence. If the Supreme Court does what it is absolutely certain now that it will do and that is whether it calls it overruling Roe v. Wade or not, getting rid of the fundamental right to abortion until viability, when it does that, it will be the first time in our nation`s history that we have turned things backwards in terms of rights.

All along we have expanded rights. Brown v. Board expanded rights beyond what Plessy has said. Lawrence v. Texas expanded rights for LGBT people. We`ve expanded.

But if we do what the court now is poised to do it will be the first turn- around. We`ll have lost our virginity basically. Once we do it this time, it is going to be a lot easier next time with contraception, with same sex marriage, with gun rights, for example -- rights that conservatives like, rights that liberals like. It has always been a matter of expanding rights.

This will be the first reversal of that trend. That`s not only, not the only first it`ll be. It will also be the first time the Supreme Court since Dred Scott in 1857 took the position that when there are rights on both sides, you know, back in 1857 they thought that slave owners have rights but we could have a nation half slave and half free, just let each state decide for itself.

A position that Brett Kavanaugh, Justice Kavanaugh took in today`s argument was if we are scrupulously neutral instead of resolving a conflict between important rights, the woman`s right to liberty and bodily integrity and possible right on the part of the unborn to survive, we will be scrupulously neutral between those rights not by developing a constitutional line like viability, not by having a nationwide constitutional amendment the way we did in the 14th Amendment to finally make former slaves full citizens of the country, but by letting each state vote by majority vote in that state about whether fetuses will be protected or women will be protected.

There is a third first that I think is extremely important. You ended with the quotation from Justice Sotomayor asking whether the institution of the Supreme Court can preserve its legitimacy, continue its important role in our country. If the stench on that court is so visible and evident as it will be when nothing but the composition of the court is changed. Nothing else has changed in the 30 years since Casey and really in the 50 years since Roe, nothing constitutionally relevant. It`s just that there are new faces there.

Now, important as the institutional legitimacy of the court is, and I think it is important, even more important, even more fundamental is the question, will we have a legitimate form of law if we have a nation in which half the citizens, half the citizens have less than full rights?

We men have the right to control our bodies. We have a court that says bodily integrity is important even when you`ve got a terrible pandemic. People have a right under the religion clauses to say, no. Keep your hands off my body.

But there will be one group of people who are subject to a very different regime, who can be told that their bodies can be scripted to remain involuntarily pregnant. One of the most astonishing moments in the argument today occurred when Justice Barrett said essentially -- I`m paraphrasing her, essentially it is not that big a deal if women are forced to be pregnant and remain pregnant. After all, the perception, if that doesn`t work, all they have to do is leave their baby that the -- you know, at the front steps of an adoption agency because all 50 states have safe haven laws. Nobody then has to be an involuntary parent.

It made me think of Sophie`s choice, the idea that women can be told it is really okay if we force you to remain pregnant because at the end you can give up your baby. Nobody with any sensitivity could think that is the meaning of liberty, dignity, equality, freedom.

So, today`s argument though it wasn`t surprising where the court is going to come out was important not only because of the devastating effect that what the court is about to do is going to have not only for poor women but really for the status of women throughout the country, but important because it will reverse for the first time the trend toward expanding rights and fundamentally important because it will say that we can put up the majority vote in each state the balance of competing rights and important because it will bring into question not only the legitimacy of the Supreme Court, but the legitimacy and justice of our entire system of law and government. The stakes could not be higher.

O`DONNELL: Professor Laurence Tribe, thank you very much for starting off our discussion tonight.

TRIBE: Thank you, Lawrence.

O`DONNELL: Thank you.

And joining us now is Cecile Richards. She is the co-chair of American Bridge 21st Century. She is the former president of Planned Parenthood.

Cecile, I just want to open your mic and say what was your reaction to what you heard today in the court?

CECILE RICHARDS, CO-CHAIR, AMERICAN BRIDGE 21ST CENTURY: Well, I think it was difficult for anyone to listen to today`s hearing although I am glad you mentioned the women who argued on behalf of women in this country did a spectacular job. Look, this, and Lawrence Tribe I think really captured some of the most horrifying moment but the moment with Justice Barrett as if somehow women would just be vessels for the state to force to continue pregnancies they did not choose to have.

Look, this all comes down to politics and what we saw today was the direct result of Donald Trump and Mitch McConnell jamming through three justices on the Supreme Court. Donald Trump told us he was only going to appoint justices that would overturn Roe versus Wade and that is what he did.

Justice Sotomayor said during the hearing as referenced earlier, this is a right women have had to make the most personal, private decisions about their pregnancies for nearly 50 years in America. And she posed the question which really distilled the whole hearing to me. What has changed in 50 years? Medicine hasn`t changed dramatically. Science hasn`t changed about viability. Women`s need to be able to control their bodies, to be able to make the decisions about their pregnancy hasn`t changed.

The only thing that has changed is politics and the Republican Party has been on a mission to end access to safe and legal abortion for years and now they are within striking distance of doing just that. This was chilling. It is frightening to think this is happening.

I would also say, Lawrence, we`re talking about the state of Mississippi but my home state of Texas for nearly three months now women have not been able to access safe and legal abortion in that state. Effectively Roe has already been overturned in the state of Texas and this Supreme Court has done nothing about it.

I think the most important thing about all this is the solution is at the ballot box. And this issue, the ability to make your own decision about your pregnancy is igniting women around this country and not just Democratic women, Republican women, independent women, 80 percent of people in this country believe these decisions should be made by women not by politicians and this is an issue I believe and certainly hoped it is going to energize voters in the midterm elections so we can begin to right the course.

O`DONNELL: Let`s listen to what Chief Justice Roberts said about the 15- week limit on abortion in Mississippi, 15-week pregnancy limit, that this law would impose.

Let`s listen to what he said about that.

(BEGIN AUDIO CLIP)

CHIEF JUSTICE JOHN ROBERTS, SUPREME COURT: If you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they have had the fair choice, opportunity to choice, and why would 15 weeks be an inappropriate line?

[22:20:19]

So viability it seems to me doesn`t have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?

(END AUDIO CLIP)

O`DONNELL: Cecile, Justice Roberts doesn`t believe that any women need apparently another ten weeks or more that would be granted under Roe.

RICHARDS: I mean, it is so obvious, Lawrence, both the disingenuousness of that statement, when they`ve already let a six-week ban stay in effect in Texas as I said. As we know Mississippi is passing a six-week ban as well because as the legislature has seen, wow, we have three justices now on our side, so we can basically restrict abortion whatever way we want to.

The question is, this has been an established, constitutional right for 50 years. So, my question back to Justice Roberts would be what is it that has changed that has allowed this court to stand on its head 50 years of an existing right, as Laurence Tribe said, the first time the Supreme Court of the United States is taking away a right of more than half of the people in this country. What is that justification? Frankly, they had none today. The only -- the only justification is they didn`t want to have women to have the right to access safe and legal abortion and so it was their right and their mission to take it away.

O`DONNELL: Cecile Richards, thank you very much for joining us on this important night. Really appreciate it.

RICHARDS: Thanks, Lawrence.

O`DONNELL: Thank you.

And former Harvard law professor Senator Elizabeth Warren has both analysis of what happened in the court today and a proposed solution. She will join us next.

(COMMERCIAL BREAK)

[22:26:12]

O`DONNELL: After today`s oral arguments at the Supreme Court, Senator Elizabeth Warren, a former Harvard Law School professor tweeted: One by one, the Republican-appointed justices came before the Senate and promised they`d respect precedent. They`d respect settled law. Well, Roe vs. Wade has been law for nearly 50 years, so let`s see that respect. But we can`t wait. We must end the filibuster so we can codify Roe.

Joining us now is Democratic Senator Elizabeth Warren of Massachusetts.

Thank you very much for joining us on this important night, Senator. We really appreciate it.

I want to go to -- first of all, your reaction to what you heard in the court today.

SEN. ELIZABETH WARREN (D-MA): Well, I was with Justice Sotomayor when she talked about the stench of just making a naked political decision here and what that does ultimately to women. What it does to our rights. And what it does to the authority of the court and the American people`s belief that this is a court that expands rights and this is a court that will protect the American people.

And they just -- they just indicated they`re willing to throw that out the window because they made a promise somehow and back in the -- in the -- before they got nominated, they said one thing in public, always knowing they were going to do this to Roe versus Wade. It looks like that`s where we are today. This is the day it happens.

O`DONNELL: You represent one of the states on which -- in which this decision will have no effect. You represent the state of Massachusetts. The Massachusetts legislature will not allow any kind of changes and restrictions on abortion in your state. And so, this is a decision that if it goes the way, it is apparently going to go will not affect all 50 states. There will be states like New York, Massachusetts, California, many, many, many others where the majority of the population actually is, who won`t be affected at all.

And let`s listen to what Justice Sotomayor said today about the women who will be affected in those Republican controlled states.

(BEGIN AUDIO CLIP)

JUSTICE SONIA SOTOMAYOR, SUPREME COURT: When does the life of a woman and putting her at risk enter the calculus? Meaning, right now, forcing women who are poor, and that`s 75 percent of the population, and much higher percentage of those women in Mississippi, who elect abortions before viability, they are put at a tremendously greater risk of medical complications and ending their life. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer.

(END AUDIO CLIP)

O`DONNELL: I didn`t hear a single Republican appointed justice who understood those points.

WARREN: Yeah. You know, that is part of the point, is that when abortion is outlawed in these states and we know that we got 20 states with their toes right on the line ready to end abortion as soon as the Supreme Court says that it will permit it. But we know who`s going to fall hardest on.

It`s not going to fall on the women who have means. It`s not going to fall on the women who can buy a plane ticket and go to New York or Massachusetts or California. It`s not going to fall on those women.

It`s going to fall on the women who are poor. It`s going to fall on the women who already have children and can`t leave. It`s going o fall on women working three jobs. It`s going to fall on young, young girls who have been molested and may not even know they`re pregnant until deep into the pregnancy. That is who this will fall on.

This is not only taking away a woman`s right to make a decision. This is taking away a woman`s right to continue to build a future for herself.

O`DONNELL: You could convert the Supreme Court opinion Roe vs. Wade into the federal statute passed by perhaps Elizabeth Warren leading it through the Senate. What are the prospects of that?

WARREN: It is a filibuster problem. So look. We`ve got the Women`s Health Protection Act that just says as a matter of federal law the decision to continue a pregnancy is a woman`s decision. She can consult with anyone she wants to. She can consult with her mother, with her partner. She can consult with her doctor, with her priest, with her rabbi.

But it is not up to the state, it is not up to the government to come in and interfere in that decision. We`ve gotten it through the House. I believe we could pass it in the Senate but we can`t get 60 votes to get past a filibuster.

This is one more time when we see the filibuster blocking the will of the majority. You know, anything that enjoys support across this nation at the level of 70 percent to 80 percent is something we ought to be able to bring to the floor of the United States Senate and vote on it.

And I believe what would happen is the rule of Roe would then be the rule not just in Massachusetts or California or New York. It would be the rule all across the country. We`ve got to get rid of the filibuster.

O`DONNELL: And we heard Brett Kavanaugh say today that if you did that the Supreme Court would absolutely uphold it. He said it is absolutely constitutional for Congress to pass such a law, for any of the states who already have their own laws protecting abortion rights.

What you are proposing is something that Brett Kavanaugh has said the Supreme Court would completely go along with.

WARREN: Right. But it is the reminder isn`t it of the price we`re paying right now for this technical rule in the United States Senate that keeps us from being able to move forward.

And so now we can just start down the list. We need to pass voting rights. We need more laws around gun safety. We need a law around immigration, right and a path to citizenship for millions of people in this country. And we need a law to protect the right of a woman to make her own decision about whether or not to continue a pregnancy.

And the filibuster is blocking us, blocking us, blocking us, blocking us. It`s got to stop.

O`DONNELL: Senator Elizabeth Warren, thank you very much for joining us on this important night.

WARREN: Thank you.

O`DONNELL: Thank you.

Coming up, tonight the January 6th Committee voted unanimously to recommend a criminal contempt referral for Jeffrey Clark. Committee member Adam Schiff joins us next.

[22:33:22]

(COMMERCIAL BREAK)

O`DONNELL: Tonight at the very last minute former Trump Justice Department official Jeffrey Clark tried to avoid being cited for criminal contempt of Congress by suddenly offering to testify to the House Select Committee investigating the January 6th attack on the Capitol but the last-minute attempt to stop the committee`s vote on contempt of congress did not work. Here is committee chair Bennie Thompson.

(BEGIN VIDEO CLIP)

REP. BENNIE THOMPSON (D-MI): We have just learned that Mr. Clark has agreed to appear again to continue his deposition. However, we will proceed tonight with considering the contempt request as this is just the first step of the contempt process.

(END VIDEO CLIP)

O`DONNELL: The Republican vice chair of the committee Liz Cheney said this.

(BEGIN VIDEO CLIP)

REP. LIZ CHENEY (R-WY): If Mr. Clark believes that answering questions about his discussions with President Trump and others in November and December of 2020 and January of 2021 could incriminate him, and he therefore wishes to invoke privilege on that basis the committee would certainly consider that. We will not finalize this contempt process if Mr. Clark genuinely cures his failure to comply with the subpoena this Saturday.

It is important to note, however, that Mr. Clark is not excused from testifying simply because President Trump is trying to hide behind inapplicable claims of executive privilege.

(END VIDEO CLIP)

O`DONNELL: The committee then voted unanimously to refer Jeffrey Clark to the Justice Department for prosecution of criminal contempt of congress.

Congressman Adam Schiff a member of the committee issued this statement. "At the 11th hour Mr. Clark has agreed to appear before our committee once again, this time to assert a Fifth Amendment privilege against self- incrimination. Mr. Clark makes the assertion that answering particular questions about the scheme to overturn the election would tend to incriminate him, that is a weighty matter, and the committee will soberly assess whether that privilege has been properly invoked.

And joining us now is Democratic Congressman Adam Schiff of California. He is the chairman of the House Intelligence Committee and he`s a member of the January 6th Select Committee.

[22:39:45]

O`DONNELL: Congressman Schiff, the Fifth Amendment -- invoking the Fifth Amendment means that you personally believe as you invoke it that you did commit or may have committed a crime and answering this question might bring you closer to prosecution and conviction for committing that crime.

But people sometimes hide behind the Fifth Amendment when they really aren`t likely to be self-incriminating. How does the congressional committee determine whether the Fifth Amendment is being properly invoked?

REP. ADAM SCHIFF (D-CA): Well, it`s a good question, Lawrence. And just to give some of the chronology here. For weeks we tried to get Mr. Clark to come before the committee.

Ultimately we were forced to subpoena him. We then brought him before the committee. He refused to answer pertinent questions and he gave a wide ranging, you know, set of excuses, assertions of different purported privileges, not the Fifth Amendment however, which didn`t seem to have a good faith basis.

And it wasn`t sufficient to merely show up and say I`m not going to answer any questions without being willing to state what is the particular privilege you`re asserting.

For example, Lawrence, I asked him about a conversation that he had with a reporter about January 6th. There was no conceivable privilege covering a conversation he had with the press. But he still refused to answer questions about it.

Now he is asserting at the 11th hour when he was going to be held in contempt a Fifth Amendment privilege. Now Fifth Amendment doesn`t apply if what he is really trying to do is not protect himself from incrimination but protect Donald Trump from incrimination.

And in terms of how the committee will ascertain whether he is invoking that in good faith we will have to assess that when he comes and testifies. Whether he is invoking the Fifth in a wholesale manner as to matters that there cannot be a factual basis for that claim or whether he is invoking it in good faith.

We take the Fifth Amendment very seriously but we`re going to have to assess it after his testimony.

O`DONNELL: Let`s for the moment assume he is invoking the Fifth Amendment in good faith which is to say he is invoking it because he believes he committed a crime. Doesn`t that suggest that Merrick Garland`s Justice Department should be all the more urgently criminally investigating what Jeffrey Clark was up to and who he was up to that -- who was with him in what he was up to?

SCHIFF: Lawrence, I want to be careful about answering your question. I don`t want it to be a basis for him to make any claim at his deposition on Saturday. But I will say generally that I think that the Justice Department ought to be investigating for example as I`ve said the former president`s actions in trying to overturn the election in Georgia.

In particular his call to the secretary of state where he asked Brad Raffensperger to find 11,780 votes that don`t exist. Any effort to overturn a lawful election as we appear to have witnessed with Donald Trump after the investigation.

I don`t want to talk more specifically about Mr. Clark but I will say according to his lawyer at the 11th hour he is making the assertion he did not make when he appeared before our committee only weeks ago that he believes his answers at least to some questions might incriminate him.

Now the questions that are most pertinent here are ones that go to efforts to get Georgia to withhold the slate of electors or maybe send a slate that doesn`t represent what the voters in that decided as well as what an effort to similarly other states withhold their electors as well.

O`DONNELL: It would seem that the Justice Department now headed by Merrick Garland, has a special responsibility to hold Jeffrey Clark accountable and accountable to the committee`s demands. Otherwise the Justice Department then starts to appear to be basically helping a former Justice Department official slowly get away with whatever he was trying to get away with.

SCHIFF: Well, I think you are right, Lawrence. We should consider the fact, too, that Jeffrey Clark`s superiors at the Justice Department have already come in and testified. So in terms of any claim of privilege, executive privilege, the fact that those even above him in higher positions did not assert any privilege is pretty telling when someone at a lower level is trying to claim that. They also didn`t assert any Fifth Amendment privilege.

Now, Mr. Clark may have a particular reason why he believes that his testimony would incriminate him. Again, we`ll have to evaluate that as it comes. But should we decide that it is a valid privilege as to certain questions. Even then that might not be the end of the story. We could explore potentially with the Justice Department whether there is an order, some form of immunity.

[22:44:54]

SCHIFF: But I don`t want to, you know, cross that bridge before we see whether this indication is in good faith or bad faith. So far, I think, in his prior appearance before the committee he was not acting in good faith.

O`DONNELL: Congressman Adam Schiff, thank you very much for joining us tonight. Really appreciate it.

SCHIFF: Thank you, Lawrence.

O`DONNELL: Former Senator Claire McCaskill has something to say about the investigations of what Donald Trump and Jeffrey Clark have been up to and she will join us next

(COMMERCIAL BREAK)

O`DONNELL: Former Senator Claire McCaskill is also a former prosecutor and she has grown a bit impatient with way the Justice Department is helping to enforce the January 6th committee`s subpoenas.

[22:49:40]

(BEGIN VIDEO CLIP)

CLAIRE MCCASKILL, MSNBC POLITICAL ANALYST: Move it. My message to the Department of Justice is get on it. Do not act like feds here. Act like state prosecutors. Go fast. Do not take the time.

Don`t give the other side a month to answer a pleading. Go to the judges. We saw the Supreme Court go quickly when they wanted to hear the Texas case. They ratcheted up that case.

The federal judiciary can do it if they will collectively decide this is an issue about power in our government permanently going forward. And if they don`t get moving, this is all about running out the clock.

And I say to the January 6th Committee and DOJ, get going, guys. Quit stalling and treading. Go.

(END VIDEO CLIP)

O`DONNELL: Joining our discussion now, Claire McCaskill, former Democratic senator from Missouri and an MSNBC political analyst. Senator McCaskill, since you said that this afternoon, we have now learned that Jeffery Clark is saying that he may have committed federal crimes and has to use the Fifth Amendment rather than answer questions about them.

MCCASKILL: Yes. You know, this is one of the things that has always bugged me. When you are a state prosecutor, you have to respond to 911 calls. When you are a federal prosecutor, you get to sit back at your desk and just decide which of the various cases you want to find federal jurisdiction on. As a result, the state prosecutors handle lots of cases and they have to go quickly. You have to make decisions quickly. You have to -- detectives have to investigate quickly.

The federal government is not used to moving with dispatch when it comes to seeking justice. They are used to going really, really slowly, And that`s what this guy`s lawyers are counting on. The Trump gang is counting on the fact that they can take over Congress before it is decided whether Congress is going to still have the power to subpoena and actually do oversight in our government.

O`DONNELL: When you discover that Jeffery Clark is saying and his lawyer is publicly saying that he needs to take the Fifth Amendment, if Merrick Garland doesn`t already have a grand jury investigating Jeffery Clark, how many more minutes would you wait to start that?

MCCASKILL: Well, we don`t know whether he is hiding behind saying he`s taking the Fifth Amendment or if he is actually using the Fifth Amendment as it`s supposed to be used.

You would think that he is a lawyer. He would understand you can`t just claim the Fifth Amendment if there is not something that would incriminate you. Not Trump, but you.

So we`ll see what happens here. But I think Merrick Garland is wanting to return to the norms of the Justice Department, which is go slow, which is stay away from political prosecutions. It`s almost like he is trying to ignore what happened over the last four years where every norm was busted, where they were -- somebody pled guilty and they said, no, you get to no longer have to plead guilty any more.

Michael Flynn, you pled guilty, but never mind. We`re going to like just wipe that away for you. I mean, crazy stuff like that that they were doing.

And, you know, we don`t have to go into the fact that Trump used DOJ like his personal law firm for political purposes. So I think Merrick Garland is so anxious to make it normal again, he is abdicating his incredible responsibility because if they are allowed to get away with this, the Congress will really -- the Congress you and I know, Lawrence, where people used to be afraid of subpoenas, no one is ever going to be afraid of a congressional subpoena again.

O`DONNELL: And doesn`t Merrick Garland have an even bigger responsibility in relation to Jeffery Clark because he is a former Justice Department official. And if this Justice Department doesn`t do everything to investigate everything Jeffery Clark is protecting with that Fifth Amendment, that`s the Justice Department helping a former Justice Department official.

MCCASKILL: A former Justice Department official that was not only very high. He was plotting a coup to take over the Justice Department, to take over the government, to basically wipe out the will of the American people in a free and fair election.

I mean, this is really, really deadly serious stuff. And I don`t think you can just decide, well, it`s just too political, let`s don`t look in the rearview mirror. I think you have to dig in. And I think -- and I am not kidding here.

The idea that took them weeks to charge Bannon, what excuse is there for that? All the evidence was as plain as the nose on my face. It was public evidence. So the idea that it took so long to charge him is really a bad sign.

O`DONNELL: Senator Claire McCaskill, thank you very much for joining us tonight. Really appreciate it.

MCCASKILL: You bet.

O`DONNELL: Thank you.

And up next, in THE LAST WORD, your tweets will be THE LAST WORD. That`s next.

[22:54:52]

(COMMERCIAL BREAK)

O`DONNELL: Last night as Giving Tuesday was coming come to go a close I took a minute to remind you about the KIND Fund, Kids in Need of Desks and immediately after the show I saw this tweet by the brilliant Emmy-winning actress Holland Taylor. "The KIND Fund truly one of my favorite opportunities to give. Lawrence`s wonderful work with UNICEF to bring desks to the school children of Malawi, learn what they are doing and how you can help, too."

And many of you did help. Just with that quick reminder last night, overnight you contributed $107,887 to the KIND Fund.

Eric Zahn tweeted, "That time of year. If you are doing better this year than last, thankfully, let`s crush the number this year. Re-tweet and donate often."

You can donate any amount at the LastWordDesk.msnbc.com. No contribution is too small. You can designate your contribution as a gift for anyone on your holiday gift list and UNICEF will send them an acknowledgment of your gift.

[22:59:57]

O`DONNELL: Leanne tweeted, "It`s Giving Tuesday and I gave to the KIND Fund. Educating kids everywhere changes the world.

My dear friend Holland Taylor and all of you KIND contributors get tonight`s LAST WORD.

"THE 11TH HOUR WITH BRIAN WILLIAMS starts now.