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Transcript: The Rachel Maddow Show, 1/3/22

Guests: Nicholas Wu, Rebecca Roiphe, Ashish Jha


The January 6 investigation enters a new public phase. Former President Trump`s eldest children are subpoenaed in a New York investigation. Several states see steep rise in COVID hospitalizations.



RACHEL MADDOW, MSNBC HOST: Good evening, Chris. How was your holiday?

CHRIS HAYES, MSNBC HOST: Oh, it was wonderful. It was truly, truly joyous and wonderful. Cooked a lot of good stuff.

Got to see some family members that I hadn`t seen in a while. Spent some time together. I`m big on the Christmas tree and all that stuff, really into the holiday music, the whole thing. It was great.

How was yours?

MADDOW: Do you have any regrets about the matching pajamas?

HAYES: Never, no. That`s one of our favorite -- that`s who we are. That`s who we are.

I think the first year I was like, really, we`re doing this? We got matching pajamas for our dog Shadow who is in the picture.

MADDOW: I will say, I feel like it`s a far-reaching decision by and you Kate, being like, listen, our kids seem to like us, they seem to like each other, let`s give them something easy and safe to rebel against.

HAYES: Exactly.

MADDOW: And really, really decide they`re going to lay down the law and not do it.

HAYES: We`re not there yet.

MADDOW: I`m in favor. It`s coming, don`t worry. I`m in communication with your kids on this, don`t worry.

We`re planning the revolt. Thank you, my friend, much appreciated.

HAYES: Happy New Year.

And thanks to you at home for joining us at this hour, happy New Year to you as well, good to have you back with us.

In Washington, D.C., they celebrated the first day back today after the New Year`s holiday by getting a huge pile of snow dumped on the capital city and shutting down most of the federal government because of it. Happy New Year. This is how we`re starting.

In addition to most federal offices being closed because of the snowstorm at the capitol today, the Senate is supposed to be in session this week. They were supposed to taking at least one Senate vote today. But that all got slid to tomorrow because of the storm.

That said, this afternoon, the Capitol physician, the doctor for the House and the Senate, sent a sobering, detailed letter to the Democratic and Republican leaders of the Senate, telling them that, you know, regardless of the snow, senators really ought to be staying home now anyway.

Apparently at the COVID testing site they`ve got set up at the U.S. capitol, the positivity rate, the rate at which tests at that site are coming back positive, it had been under 1 percent until recently, until this current omicron wave of the virus started to hit in D.C. But the Capitol physician advised senators today that as of right now the test positivity rate there has gone from under 1 percent to over 13 percent. He described that the number of COVID cases on Capitol Hill right now is, quote, unprecedented, saying, quote, dozens of individuals with coronavirus infection are identified at the Capitol daily.

This is not the capital city. He means specifically at the U.S. Capitol building, they`re getting dozens of new infections found every single day. He then reminded Senator Schumer and Senator McConnell who he sent this letter to, that the Capitol building, which he is speaking for, that capitol testing site which he is speaking about, they`re also located in D.C., and D.C. as a city is taking it on the chin right now.

Quote, disease activity in the District of Columbia metropolitan area has attained the highest coronavirus disease cases per population size in the entire United States, meaning D.C. right now has a higher per capita rate of coronavirus infection than any other place in the country.

Quote: The overall rate of hospitalizations has been less frequent than the prior delta variant coronavirus waves. However, the benefit of a reduced rate of hospitalizations has been offset with profoundly increased numbers of cases and therefore an increasing absolute number of people requiring hospitalization, especially among the unvaccinated.

The Capitol physician says, quote, the situation has led to an unprecedented strain on medical centers. In our local region, again, the D.C. region, where hospitalizations have more than doubled in the past ten days, at least six large hospitals have declared crisis standards of care and states of emergency and large health care providers are petitioning their governors for various emergency declarations to prioritize and allocate medical services.

Governor Larry Hogan of Maryland has advised Maryland residents to prepare for the worst part of the pandemic during the next four to six weeks. Medical centers face unprecedented pressures of relentless demand for services and illness and exhaustion depleting their staff. Other essential infrastructure services are similarly impacted by coronavirus in the workplace such as air travel, childcare, schools, mass transportation, ambulance services, fire, and police.

The Capitol physician then tells the Senate leadership in this letter today that all members of the Senate, all senators and their staff, need to upgrade their masks.


Quote, blue surgical masks, cloth face masks, and gaiter style masks must be replaced by the more protective K95 or N95 masks -- KN95 or N95 masks.

Bottom line, he`s also telling the Senate they should stay home right now. Quote, congressional offices, committees, and agencies should immediately review their operations to adopt a maximal telework posture to reduce in- person meetings and in-office activities to the maximum extent possible. Electronic means to facilitate all virtual or hybrid type hearings or meetings should be emphasized.

Again, this is the letter today from the attending physician of the Congress of the United States, Brian Monahan, who is essentially the doctor for the House and the Senate, advising a maximal telework posture for Congress.

The Senate is supposed to be in session this week. We will see how that plays out. And we`ll have more a little later on this hour as to what`s going on with hospitalization numbers. We have seen over the past couple of weeks as case numbers have just gone off the charts.

But infectious disease experts, including Dr. Anthony Fauci, have been telling us now that we ought to be watching the hospitalization numbers much more closely than we`re watching the case numbers. If we want to get a sense of how much this thing, this new wave is really going to take us apart, we need to watch hospitalization numbers, not just case numbers.

And when you do start looking at the hospitalization numbers, what you`re seeing might surprise you. It does not necessarily comport with the sort of common wisdom and common anecdotal discussion of what`s going on with this wave. You`re going to want to see this. We`ll have a close look at that in this show in the next hour.

On Wednesday this week in Washington, we know Attorney General Merrick Garland is expected to give a major address to DOJ staff. Interestingly, it is an address to the staff of the Justice Department, about the progress the department has made in prosecuting crimes that took place at the Capitol on January 6th last year when supporters of former President Trump mounted that violent attack on the U.S. capitol to try to overthrow the government and stop the transfer of power to the new president.

The one-year anniversary of the U.S. Capitol attack is, of course, this week. It`s Thursday. Honestly, it`s starting to look like it`s going to be sort of a strange day on Capitol Hill. The Senate, as I said, is technically in session this week. But the Capitol physician today did tell senators they shouldn`t be doing anything in person that they don`t have to do, they should be teleworking, they should be working from home as much as possible. He`s calling for that maximal telework posture. So we don`t know what that will mean for senators` plans and plans of Senate staff this week.

Thursday, the day of the anniversary, is also the day of the funeral for former Republican Senator Johnny Isakson who died last month and who is memorial will be in his home day of Georgia on Thursday this week. Senator Isakson served two decades between his time in the house and his time in the senate. He was very well-known and very well-liked on Capitol Hill.

A lot of senators will presumably be planning to attend his memorial on Thursday this week, the day of the January 6th anniversary. Again, so for that anniversary, it is hard to know exactly what Capitol Hill is going to like and who is going to be around.

That day on Thursday, the House is -- the House of Representatives, as opposed to the senate, they`re not technically in session that day or in fact at all this week. But per House Speaker Nancy Pelosi, the House has nevertheless planned a day of remembrance on Thursday, including a discussion with a historian about the implications for the country and the historical parallels to this kind of crisis.

There`s going to be I think four speeches in addition to the speech we`re expecting from the president that morning from the White House. The sort of capstone to what they`re planning on Thursday in the house is a prayer vigil, a prayer vigil outdoors for members of Congress in the early evening.

Now, again, that`s what`s planned by the house. But there is a competing event at that same time. True to form, former President Trump himself has apparently planned some publicity-seeking event of his own, that day of all days. And he has planned his event, his press conference or whatever it is, to start at the same time that the prayer vigil is starting at the House of Representatives.

As always, the man is working overtime to put the "T" in classy. There is no "T" in classy.

Anyway. Here is a snapshot for you, though, of how this is all going over in Republican circles right now. Here is the headline today in "The Atlanta Journal-Constitution."


Quote: The Cobb County homage to treason planned for January 6th. Quote, the deadly events of January 6th will mostly be marked around the country this week by solemn ceremonies to remember the day that the pro-Donald- Trump mob attacked the U.S. Capitol. But at the Cobb County, Georgia Republican headquarters, far-right activists will hold a two-hour-long program Thursday to lionize the insurrectionists who stampeded into the Capitol to prevent Congress from certifying President Biden`s victory.

The 5:00 p.m. program on Thursday will begin with a live stream of former President Trump`s press conference from Florida. It will continue with a call to action for Cobb County, Georgia Republicans.

It will conclude -- this is amazing -- it will conclude with a candlelight vigil for the, quote, Jj6 patriots. The shorthand extremists have created for the rioters who sought to overthrow the government.

So, on Thursday, on January 6th this week, there will be a vigil for those patriotic rioters who attacked the U.S. Capitol and tried to overthrow the U.S. government. The J6 patriots, they will have a candlelight vigil in their honor, a celebration of the attackers hosted by the Republican Party in Cobb County, Georgia.

As we close in on that anniversary this week, I was interested, when I sort of started making notes today, updating myself, kind of consolidating myself, what happened over the break, how we left things before the holiday break with the January 6 investigation, what`s going on, and the lead up to that anniversary, I was surprised to see how many big, open questions there are right now, how many big, important things were sort of waiting to happen at any point now that we`re into the New Year.

First of all, in terms of the criminal investigation, that speech by Attorney General Merrick Garland on Wednesday will be important in large part because there has been no indication thus far that the Justice Department is investigating the people who actually planned the coup, the people who tried to orchestrate that attack on the Capitol, not just for fun or for free expression, but because it was part of a plan to stop the transfer of power to the new president, to overthrow the government.

If the Justice Department is investigating the big crime there instead of just the individuals who took part in it at the local levels, presumably this Wednesday`s speech by Attorney General Merrick Garland would be the attorney general`s best opportunity to tell the country about a change in focus or at least an additional development in their investigation. So that will be a highly anticipated set of remarks from Attorney General Garland, as I think the questions get more and more pointed and pregnant in terms of whether or not anyone who planned the overthrow of the government is going to face any reckoning for it in criminal law.

So that`s Wednesday. Open question, potentially to be answered by the attorney general on that day.

We`re also right now still waiting on the Department of Justice to decide whether they`re going to prosecute criminal contempt charges against Trump`s White House chief of staff Mark Meadows. Mr. Meadows, you may recall, in December refused to hand over materials and testify to the January 6th investigation. Congress then referred Mr. Meadows to the Justice Department for prosecution. The Justice Department hasn`t said anything about it since.

That referral was 2 1/2 weeks ago. It was December 14th or 15th, I think. For context, when the Justice Department obtained an indictment against Trump adviser Steve Bannon under similar circumstances in November, that took three weeks, three weeks in between the time they got the referral and when the indictment was handed down. It`s now been 2 1/2 weeks since they got the referral relating to Mark Meadows.

We haven`t heard anything yet. But that question is becoming, again, a more pointed question as time goes by. So we`ll see if we hear from the Justice Department on that and whether or not an indictment comes down for Trump`s White House chief of staff.

In Congress, the congressional investigation into the attack, they themselves have to decide if they`re going to issue subpoenas to currently serving members of Congress who are believed to have played some kind of a role in the attack or have key information about it. Again, you may recall from before the holiday break that Republican Congressman Scott Perry and Republican Congressman Jim Jordan received requests from the investigation that they testify voluntarily, that they hand over documents and materials voluntarily.

Scott Perry has said outright that he will not cooperate with those demands. Jim Jordan has suggested that he is unlikely to comply with those voluntary demands. If both refuse to comply, the investigation has to decide whether they`re going to issue compulsory subpoenas in response.


That`s never been done before to a sitting member of Congress let alone two of them. We`re not sure if they will do that for Scott Perry or Jim Jordan or for other potentially implicated members of Congress as well. We are waiting on that as well.

"The New York Times" reports today that the January 6th investigation is also considering issuing subpoenas to Trump himself and to his Vice President Mike Pence. So we`re waiting to know about that too. And of course if those subpoenas do come down from the investigation, it will be interesting to see how long they will be held up in court once Trump and pence inevitably defy those subpoenas.

And on top of all of that, of course the Supreme Court of the United States is now mulling whether it`s going to take up Trump`s appeal. Trump lost successive lower court rulings and is now facing an order that he needs to hand over his White House records and documents to the January 6th investigation. He has appealed to the Supreme Court after losing in every lower federal court that has considered this matter.

The Supreme Court, they take their own sweet time on matters like this. They also offer no guidance on when they will make their decision until they actually make it. So we are waiting for that too. But again, like all those things I just described, any of that could happen at any time.

But meanwhile, surprise, happy New Year, the man who worked as police commissioner in New York City under then-Mayor Rudy Giuliani, a man named Bernie Kerik, who really did lead New York City police until he himself pled guilty to eight felonies and served years in federal prison, Bernie Kerik, who naturally is part of this whole mess on the Trump side, he has not only agreed that will he testify to the January 6th investigation next week, he has produced what `Politico" today describes as a, quote, trove of documents to the investigation, a trove of documents that includes this 22- page strategic communications plan that`s dated December 27th. You see the subhead there in red, we are ten days to execute this plan and certify President Trump.

It`s not really a plan. It`s basically a set of talking points. But this is what they say is their talking points message targeted to, quote, everyone. You cannot let America itself be stolen by criminals. You must take a stand and you must take it today.

Again, that document, dated December 2020, saying that they had ten days until January 6th to sort of get president Trump certified for another term even though he had lost the election. That 22-page document is one of the documents reportedly handed over to the January 6th investigation by Bernie Kerik.

But here`s the really interesting part. He also handed over what his lawyer is calling a privilege log. Now, a privilege log is a real thing in court proceedings, when somebody as part of a court proceeding has to hand something over, but something can`t be handed over because of the type of document it is, because it is implicated in -- it implicates the attorney/client privilege or some other privilege that should shield it from being handed over to the court.

Privilege logs are a real thing. Privilege logs don`t look like this. What Bernie Kerik produced as his, quote, privilege log, this is like the Bazooka bubble gum wrapper version of a privilege log.

But it is Mr. Kerik`s explanation to the January 6th investigators what he has not handed over to them and why. He`s handed them a trove of documents. He has not given them everything they`ve asked for. This is his privilege log that explains why they`re not getting some things he has.

And it`s not a document that overall inspires confidence. Literally, here is Kerik`s description of one of the things he`s not handing over to the investigation because he says it`s protected by attorney/client privileges. This is how Kerik describes that document.

Type of document, reports prepared by volunteer third parties by the Trump legal team. Basis for withholding, retained by the Trump legal team in anticipation of litigation, date, 28 November 2020. Addressees, Giuliani.

And then the title of the document being withheld on this basis, quote, compliation of rants.

That does not mean spelling what they wrote or making fun of it. That`s what Bernie Kerik and his lawyers say is the title of the document. Compliation of rants. Yes, we can see how that`s very sensitive, and that can`t be handed over to investigators, the compliations of your rants or pants or whatever.

Sure, your compliations of rants, I understand, very sensitive.

This one is a little more worrying, though. Basis for withholding: documents drafted and/or edited by attorney. Date, December 17, 2020. Type of document, draft POTUS letter, meaning draft of a letter from the president of the United States.

Look at the subject matter that have document, which again, Bernie Kerik says he is not handing over.


Quote, draft letter from POTUS to seize evidence in the interest of national security for the 2020 elections. A draft letter to be released by then-President Trump written for him by an attorney, a letter explaining or announcing that he is seizing evidence for the 2020 elections under some national security guise. You know, we had previously seen reference in the January 6th investigation to a draft executive order prepared for Trump related to the election, related to so-called election integrity.

We had previously seen Trump advisers including his former national security adviser Mike Flynn recommending that Trump should use the military to go seize ballots, seize elections machinery, declare martial law. But now, from Bernie Kerik of all people, we`ve got this new revelation, a lawyer of some stripe, drafting a letter for Trump about seizing evidence related to the election. Again, this dated mid-December 2020.

And Bernie Kerik says he has this document but doesn`t want to hand it over. What do we expect will happen next?

Joining us now is Nicholas Wu. He`s a congressional reporter for "Politico". He was the first to report that Bernie Kerik had handed over documents to the January 6th investigation.

Mr. Wu, thanks very much for making time to be here tonight. It`s nice to have you here.


MADDOW: So, first of all, let me ask if I`ve gotten any of that wrong or if there`s anything important that I`ve missed out in terms of what you know from your reporting, what we`ve learned about what Mr. Kerik has handed over to the committee.

WU: Well, Rachel, that draft letter that you brought up just now, the timing of that and the date on it is what is most interesting. So that`s dated December 17th, 2020. And that`s a day before Trump held an oval office meeting with Mike Flynn and Sidney Powell and other Trump world allies about ways to potentially seize election machines and other things Trump saw as proof of fraud in the election.

And so, it`s unclear exactly if these two are linked. But, I mean, that`s quite a coincidence with the timing.

MADDOW: In terms of the sort of nature of these documents and the likelihood that they`ll ever see the light of day, obviously, Mr. Kerik has described this document, again, a draft letter for the president about seizing evidence, we don`t know more about it than that, but he`s described it but not produced it, saying that it is protected by attorney/client privilege because it was drafted by a lawyer.

Do we know anything about how the committee is handling that kind of an assertion? Mr. Kerik identifying that the document exists but saying that it won`t be handed over, that it`s protected from this kind of inquiry?

WU: Right. So, Kerik`s lawyer has gone back and forth with the committee on this and trying to testify, trying to find some sort of conditions that would make it amenable both for Kerik to come and testify before the committee and for them to release documents, trying to figure out what could be redacted, what is not privileged and the like.

The bigger question there is, you know, what exactly would allow Kerik to come and testify before them. He said before that he would be interested in complying with the committee. They just have concerns about the format of it, whether it will be public and the like.

But right after we published this story, Kerik`s lawyer said that the agreement with the committee to come in for an interview seemed to have fallen apart, and the committee wanted to do a deposition instead on the 13th. Now, this is something that Kerik`s lawyer and Kerik have opposed previously because they don`t see the committee has being able to hold a deposition for various technical reasons. So, this is part of the back and forth here between Kerik and the committee. And we`ll see that play out over the next week as we get closer to that deadline to actually come in for an interview.

MADDOW: Nicholas Wu, congressional reporter for "Politico" -- Mr. Wu, congratulations on this scoop. Again, the nature of Mr. Kerik`s cooperation is itself fascinating. It sort of hasn`t come to full flower in terms of us understanding its full implications yet. But we wouldn`t know about it without you.

Thanks for your reporting. Thanks for joining us tonight.

WU: Thank you.

MADDOW: All right. We`ve got much more to get to tonight. Stay with us.



MADDOW: This is a statement just out tonight from the office of the New York state attorney general. We just got this.

Quote: For more than two years, members of the Trump family and the Trump Organization have continually sought to delay and impede our investigation into Donald Trump and the Trump Organization, but despite their names, they must play by the same rules as everyone else. These delay tactics will not stop us from following the facts or the law, which is why we will be asking the court to compel Donald Trump, Donald Trump Jr., and Ivanka Trump to testify with our office under oath. Our investigation will continue undeterred.

And happy New Year to you as well.

We learned last month that New York`s Attorney General Letitia James had subpoenaed former President Trump to testify in her office`s investigation into the financial and business practices of the Trump family real estate business. They are reportedly investigating potential tax fraud and bank fraud at the Trump Organization.

Now, that news, that the former president himself was facing a subpoena to testify in that investigation, that was big news when we learned it last month. But it was not until today that we learned that the attorney general`s office is also subpoenaing Trump`s children, Don Jr. And Ivanka Trump.


Ivanka and Mr. Trump Jr. have long been executives at the family business, as is their brother Eric who testified in this investigation already last year. The New York attorney general apparently wants testimony from all of them now.

Now, what Attorney General Tish James is conducting here in New York is a civil investigation, which means the end result could be a lawsuit by the attorney general, not criminal charges. But that`s not necessarily a small thing. It`s been lawsuits from the New York attorney general`s office that have already successfully dismantled Donald Trump`s fraudulent Trump University and his bogus Trump Foundation charity thing. Neither of those exists anymore, and millions of dollars in fines have had to be paid in shutting them down and settlements for those lawsuits.

So the civil lawsuit from a New York attorney general is a powerful thing. And that may be where this is going. But in addition to that, there is also a parallel criminal investigation into Trump`s business practices being run by state prosecutors in Manhattan. That investigation is being taken over by the new district attorney in Manhattan who was just sworn in this weekend, his name is Alvin Bragg.

But the two lead prosecutors handling the Trump case are staying on under the new D.A. so even though there is a new man at the top of the office, we expect continuity in terms of actual conduct of the case.

Here is where it gets tricky for former President Trump and his two adult kids. If they give testimony in the New York attorney general`s civil investigation, that testimony could potentially be used against them in the criminal case. But if they refuse to testify to the attorney general, if they take the Fifth, that very refusal could be used against them in the civil case. Then again, the civil case could be just as serious in terms of its implications for the Trump Organization.

Well, as of tonight, they`re opting for door number three. The Trumps have filed a motion to court to try to quash these subpoenas. This is what Attorney General Tish James is denouncing tonight as delay tactics. That said, any testimony for any other Trumps will be delayed at least until next month as it plays out in court.

It should be noted, though, that former President Trump is happy as a clam to string this out as long as they can. Remember, he`s not paying his legal bills for this. Even though Trump is no longer president, nor a declared candidate for any office, even though the alleged crimes and misbehavior four which he`s being investigated have nothing to do with his time as president, it`s all about his time before being a public official, despite all of that, it is the National Republican Party that is paying his legal bills in this investigation. The National Republican Party has inexplicably agreed to foot the bill for his legal fees in New York for this investigation into the potentially fraudulent practices of his real estate businesses.

The party has doled out over $1.5 million in legal fees for him on this already.

Here is my question. Now that his kids have been subpoenaed as well, what do you think the odds are that Trump is going to figure out how to get the Republican Party to pay his kids` legal fees as well? Dad doesn`t have to pay his legal fees. Republican donors pay for those. But Ivanka and Don Jr. have to pay for their own lawyers? It seems so unfair. What are the odds, right?

Joining us now is Rebecca Roiphe. She`s a former assistant district attorney in the Manhattan D.A.`s office. She`s now a professor at New York Law School.

Professor Roiphe, it`s a pleasure to have you here. Thanks for your time tonight.


MADDOW: So those of us non-lawyers who watch these things from the outside think we`re all very clever, think we can read the subtleties here, and I know we often get it wrong. It is my common-wisdom, uninformed belief, that when the principals, the highest profile, highest ranking people in an organization get subpoenas, that signifies an investigation is moving toward its end, that`s not something you would do at the beginning but at the end of an investigation. Am I right or wrong in suspecting that?

ROIPHE: No, I think you`re totally right about that. You`ve been following this carefully and there are things you know just as well as we do, and that`s one of them. This is the kind of situation where you would want to gather all the documentary evidence and all the other evidence you could have to check the testimony that you get from the witnesses. And so it does signify that this is towards the end of the investigation. I think that`s not reading too much into the tea leaves to jump to that conclusion.

MADDOW: And in terms of the Trump family`s efforts to quash these some questions, to have these set aside, what do you make of the case that they`ve presented to the court along those lines? Is there anything else -- I mentioned that Eric Trump was compelled to testify earlier in this investigation. Is there anything else about this case that sort of gives us a good way to surmise what`s likely to happen in terms of them trying to evade these subpoenas?

ROIPHE: So, I don`t think in the end, they`re going to be able to evade these subpoenas. What they`re basically arguing is this is an end run around the protections you have in the criminal system, that essentially the attorney general is running a civil investigation that`s kind of a sham, that`s basically a way of stripping the witnesses and the targets of the protections that you get in a criminal case.

At face value, it looks like actually kind of not a terrible argument. But you can`t just claim that`s the case. You have to show it. And in this circumstance, it`s not even clear what the investigators would gain here by having the civil investigation conduct these interviews rather than the criminal one.

In both cases, the witnesses can claim their Fifth Amendment privilege against compelled self-incrimination. And there is no way that you can force them to give their testimony without giving them immunity. Now, that said, as you pointed out earlier, you can draw a negative inference from them claiming the Fifth in the civil investigation, but not in the criminal investigation.

But that really doesn`t seem like it`s enough to compel somebody to waive their privilege. And so I don`t think that this is going to survive judicial review in the end. But as you said, again, it is a good delay tactic. It`s going to take a while before attorney general James can get that testimony one way or another.

MADDOW: Right. So they will succeed in delaying it even if they can`t succeed in quashing it altogether. Let me ask you along those lines, to the extent that this criminal investigation by the D.A.`s office and this civil investigation by the attorney general`s office, they do appear to be moving in parallel, and we don`t know exactly what the contours of that are, but they do seem to be investigating roughly the same type of the alleged behavior by the Trump Organization and its executives, should we guess? If the civil case is appearing to get, you know, toward its end, if they`re only issuing the subpoenas for the highest executives in the company now because, as you said, they`re getting toward the end what have they`re looking for from this investigation, should we also expect that the criminal case is coming to its end?

I mean, obviously the likely -- the possible outcome there is potential criminal charges. We`ve already seen felony charges brought against the organization itself and its chief financial officer. I think a lot of people are wondering if the Trump family is facing potential criminal charges here or at least what timeline we should look to expect that.

ROIPHE: Yeah, I mean, you know, I think they could have different timelines here in part because there are elements that you have to prove in the criminal case that you do not have to prove in the civil case. The burden is so much higher in the criminal case than it is in the civil case. But that said, I don`t think they would be radically different, because there are certain facts that have to be the same.

And as we know, they`re sharing information and they`re sharing evidence. And so, we have to assume that they`re while not necessarily in lockstep, around the ballpark same time frame, because otherwise it wouldn`t really make sense, they`re giving and sharing information, if they were on totally different time frames.

Given the overlap, it seems at least reasonable to assume that it`s around the same time frame.

MADDOW: We will see. New York law school professor Rebecca Roiphe, a former assistant district in Manhattan`s D.A. office, Fred, thank you so much for your time, I appreciate you being here.

ROIPHE: Thank you.

MADDOW: All right. We`ve got more news ahead tonight. Stay with us.




DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: As you get further on, and the infections become less severe, it is much more relevant to focus on the hospitalizations as opposed to the total number of cases.


MADDOW: It is more relevant to focus on the hospitalizations as opposed to the total number of cases. Dr. Anthony Fauci yesterday offering a really helpful framing as we confront this latest COVID wave, right?

The point he`s making is that the case numbers, it`s worth watching, but they may not be the most consequential thing right now, if most of the cases we`re getting with this omicron wave are cases in which people aren`t getting particularly sick.

I mean, with this new wave of COVID infections, we`re having cases around the country, new infections have gone so much that the chart showing our daily case counts, they just look like mistakes. If you chart the case numbers, look at the far right side of your screen. The line just shoots straight up, heading toward the moon at this point. It looks like somebody dropped the graph on the way to its next data point.

What Dr. Fauci is saying that the real matter of consequence for our country is not necessarily those case numbers but the hospitalization rates, right? The question with this wave is not just how many people will be infected. It`s apparently mammoth numbers, a large portion of those infections being ones in which people don`t get too terribly sick. The real consequence, he`s saying, the real question of consequence is whether our health care system can hold, especially after two years of being bludgeoned by this virus.

That`s why the nation`s top infectious disease doctor is telling us, right now in particular, to watch the hospitalization rates, not just the case numbers. And when you start doing that, at the largest level, those numbers look kind of comforting. I mean, look at the left side of your screen. Again, this is the country`s new daily cases. And on the right side of that graph, which is the most recent time period, you can see the case numbers are shooting straight up.

On the right, though, this is the same time period, and this is hospitalizations. Yes, on the right side of your graph, you are seeing hospitalizations go up. But they`re not going up quite as much. It`s not quite as steep a rise as the caseload, maybe.

As for the country as a whole, we`ll new look at some of the leading states that have been hit with omicron.


The hospitalization charts in these first-hit states are starting to look a little scary too.

Here for example is the daily cases in New Jersey. Again, this is cases. And you see the huge spike on the right side of the graph there. It`s beyond any record the state has ever seen before in terms of new cases.

Now look at the hospitalizations next to it. Almost just as steep as the case chart, more than 4,500 patients hospitalized in New Jersey as of yesterday, which is a record for the state since the beginning of the pandemic. Again, that`s New Jersey.

Take a look at Maryland. As you might expect, again, these are case numbers. Cases are just off the charts.

But now look at hospitalizations in Maryland. Hospitalizations are getting there too. Maryland set a new record for daily hospitalizations this weekend.

And it is not just the East Coast. Here is Ohio. We see the same thing, a case chart where the numbers just straight up to the moon in recent days. But as of this weekend, look at the new hospitalization record in Ohio too.

And in New York, the state with the most cases per capita right now, look at the rise in those case numbers. Cases keep soaring every day. There`s been no relief in terms of new case numbers.

So far, the state of New York hasn`t set a hospitalization record. But look at where it`s going. Every new day, the state is inching closer to last winter`s hospitalization peak. And that incline you see on the right side of the chart is very steep. We`re seeing record breaking numbers, not just of cases, of hospitalizations in the first hard-hit states.

If those first hard-hit states are an indicator of where we`re heading as a country, it looks like -- well, it looks like we`re in for as-yet unprecedented times.

Joining us now is Dr. Ashish Jha. He`s dean of the Brown University School of Public Health.

Dr. Jha, thank you for being here tonight, as always.


MADDOW: Am I looking at this the right way? I felt like I took great comfort from the early numbers in New York City when they started seeing their case numbers skyrocket and they did not see hospitalization numbers rise in parallel. I feel like those numbers, which I`ve been looking at ever since, in every jurisdiction where they`re having big new waves of cases, have started making me feel much less comfortable than I did before.

JHA: Yeah, I think that lead-up there was terrific and really helpful. And here is how I`ve thought about it.

First of all, why is Dr. Fauci even saying that we need to focus more on hospitalizations? We are seeing a little bit of a breaking of the link between cases and hospitalizations. You know, all through the delta wave, throughout the entire pandemic, we could look at infections today and predict how many people would get hospitalized a week from now, how many people would die three to four weeks from now. That link was very, very tight.

What is happening now is we`re seeing a lot of infections in boosted people, in vaccinated people, that are not leading to hospitalizations, that are not leading to deaths, because vaccines work. The reason you`re still seeing a hospitalization increase in a lot of those places is because 40 percent of Americans are still not fully vaccinated, 80 percent of Americans are not yet boosted. And not just overall, but we have like 7 million elderly Americans who are not vaccinated at all.

It`s striking to me how many vulnerable people are still out there. Those are the folks who when they get infected are going to the hospital, and end up in the hospital, and end up in the ICU.

MADDOW: In terms of the data about severity, about people likely to end up in the hospital, likely to end up in the ICU, is the data parallel in vaccinated people and unvaccinated people? Omicron versus delta, omicron versus the earlier variants, is omicron less severe both in vaccinated and unvaccinated people, or are unvaccinated people essentially open to this in a way that there isn`t really mercy for them from the virus?

JHA: Yeah, so two things are going on. First of all, there`s more breakthrough infections with omicron than there was with delta. So that means we have a bigger pool of vaccinated people getting infected.

But there is no question about it that the levels of illness is very, very low after that breakthrough compared to what we saw with delta. For unvaccinated people, the jury is not fully in. I think the data suggest that it may be milder for them.

But "milder" is relative, right? Delta was really bad. Omicron is still pretty bad, maybe marginally better. That`s good, but you can`t take any solace in that. Unvaccinated people, especially elderly, high risk unvaccinated people, remain at substantial risk from omicron.

MADDOW: One last question for you about these numbers. I am sort of haunted by those case numbers going up the way they are, especially now that we are seeing hospitalization numbers rise in states where they say they`re already tapped out in terms of medical capacity, does the steep rise in case numbers tell us anything about how long the wave will last?


Will it also crest and fall sooner than other waves did in the past?

JHA: Yeah, that`s a very good question. I think the steepness, also looking at what happened in South Africa, getting early glimpses out of London and other places in Europe, two weeks before us, I think there is reasons to believe we`re going to see a kind of peaking of this wave, again will vary place to place across the country, but are peaking let`s say about two weeks from now, in places like New York, New Jersey, maybe a little bit later on in another parts of the country. Nationally, I do expect sometime, the second half of this month, for be a national peak.

And then, hopefully a rapid decline down. That`s what we`re all hoping for. But every country is a little bit different. And I don`t think we can`t rely on looking at South Africa or even the U.K. and be confident that`s going to happen.

MADDOW: Yeah. And now, more than ever, if it`s not urgent to you before, protect the health care system, protect our doctors and nurses and people who are having to deal with this excess, this capacity in a way that we thought they were maxed out before, even more is asked of them now.

Dr. Ashish Jha, dean of the Brown University School of Public Health, Dr. Jha, thank you for your time. It`s good to have you here.

JHA: Thank you.

MADDOW: We`ll be right back. Stay with us.



MADDOW: January 22nd, 1973, landmark Roe vs. Wade was handed out, protecting abortion rights nationwide. Last year on that anniversary, somebody took a shotgun and fired into the plant parenthood clinic in Knoxville, Tennessee.

Luckily, nobody was injured but this is some of the damage done. It seems pretty clear the gunman wanted to send a message. The FBI later joined the investigation into that attack. But even though there was a witness, so far, nearly a year later, no arrest has been made. Again, that attack on the clinic in Knoxville was January of last year.

And now there`s this. On Friday, three days ago, that same planned parenthood clinic in Knoxville, Tennessee, burned down. A fire reported around 6:30 in the morning on Friday. Nine Knoxville fire units responded to the scene. Fire department says the clinic is a quote, total loss. As of right now, there is no indication as to what caused the fire. The assistant chief of the Knoxville fire department tells "The Daily Beast," quote, investigators will have to sort through the ruins by hand.

The ATF is reportedly involved in the investigation, assisting what that investigation, the FBI has been in touch with local officials. This investigation is ongoing. And, of course, the fire, it could be accidental, it could be something otherwise sort of not newsworthy, but given the previous targeting of that Planned Parenthood clinic in Knoxville, there`s a reason to keep an eye on the story.

Watch this space.


MADDOW: All right, that is going to do it for us. Good to be back after holiday break. I`ll see you again here tomorrow.


Good evening, Lawrence.