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Transcript: The Rachel Maddow Show, 1/7/22

Guests: Ruth Ben-Ghiat, Nse Ufot, Dahlia Lithwick, Celine Gounder


U.S. democracy is under threat a year after January 6. Today, the United States Supreme Court weighed in on some of the Biden administration`s key strategies for combating COVID, policies that would affect more than 100 million Americans.


ALI VELSHI, MSNBC HOST: Good to see you, my friend. Have an excellent weekend.

And thanks to you at home for joining us this hour. Rachel got the night off.

So, here`s how it went down, it was a chilly afternoon in early January, angry crowds unexpectedly stormed the federal government`s main building. Police tried to hold them off but were overrun. By nightfall, there were several people dead and injured and the seat of government was trashed, windows were broken, small fires were smoldering.

It was as though in a single day, the country was irrevocably changed. That`s what happened in January, not last January, not a year ago, but this January. Two days ago. And not at the U.S. Capitol -- but in the central Asian nation of Kazakhstan.

This is the main government building in Kazakhstan`s largest city on Wednesday. The former Soviet republic has been engulfed in protests this whole week, protests that began as a backlash against high gas prices, but quickly evolved into a revolt against the autocratic regime that has ruled Kazakhstan for other 30 years.

Protesters also stormed the presidential palace and set it on fire. They pulled down a statue of Kazakhstan`s former dictator who by all accounts still basically runs the country through his hand picked successor. For decades, Kazakhstan has been ruled by this one guy, the longest serving ruler of any ex-Soviet state. Things feel like they will never change, until they suddenly do.

Now, you may not have been following this story this week, we`ve had quite a bit on our minds here at home, but chances are you recognize this, you recognize this sort of narrative. We`ve been observing it in that part of the world for decades now. The people of a former Soviet republic rising up against the repressive regime that still governs them.

Now, to be clear, the protests in Kazakhstan this week have all kinds of specific grievances and goals, but the protesters have been explicit. They want greater democracy, and civil rights, like so many of the other former Soviet republics around them have won over the years.

And we recognize this. We see this happening in a place like Kazakhstan. We know what this is.

But what is this?

We are one year out from the attack on our Capitol. But in a lot of ways we still don`t know what this was. The January 6th attack looks like the attack on the government building in Kazakhstan exactly a year later, but the similarities basically start and end there.

For starters, the goal of those storming the buildings are polar opposites. In Kazakhstan, the protesters are trying to throw off an autocratic government and make their country more democratic. The rioters at the U.S. Capitol were attempting to stop the democratic process to keep their preferred somewhat autocratic leader in power through violent intimidation.

But I think the other big reason that we have such trouble processing January 6th is that it doesn`t fit into any narrative that we tell ourselves about ourselves. Crowds storming government buildings happened in other places, places like Kazakhstan and when it happens we at least have a basic sense of how things could develop as a result. We`ve seen this narrative in, for instance, Ukraine, where pro-democracy protesters managed to force their Russian-backed autocratic leader to flee in 2014.

Since then, Ukraine has managed with American support to hold onto its tenuous democracy through one Russian invasion, and the threat of another any minute. We`ve seen the more tragic narrative in Belarus, where massive protests look poised to topple the country`s dictator less than two years ago, but his brutal crackdown, backed by Russia, has so far succeeded in nearly obliterating the opposition.

We don`t yet know how things will go in Kazakhstan, as we speak, Russia is sending thousands of troops into the country to act as so-called peacekeepers, and Kazakhstan`s president says he`s given his own troops shoot to kill orders against protesters.

This ebb and flow of democracy is constant around the world. Democracy, holding on tenuously, in Ukraine, seeing a spark of life in Kazakhstan, slipping away in Belarus. Democracy eroding in Hungary, extinguished with terrifying speed in Hong Kong, but also advancing in some unexpected places.

The island nation of Samoa managed to survive a constitutional crisis this past summer and the democratically elected and first female prime minister took office. Just weeks ago the Caribbean nation of Barbados removed Queen Elizabeth as its head of state and became a republic. Ebb and flow, constantly, around the globe.

And I think it`s fair to say that for the past few decades, at least, America, and Americans, have felt like we were watching that ebb and flow of democracy from outside of it, as observers.


We involved ourselves in other countries` Democratic struggles, goodness knows we often failed to live up to our own standards in that.

But the United States felt kind of exempt from the internal struggles over democracy that are taking place around the world. But the United States is a stable, functioning democracy, felt like a given, like a law of nature.

But over the last few years, and especially in the year since January 6th, Americans have started coming to grips with the fact that we are not exempt from the ebb and flow of democracy around the world. We`re now very much in it. Because it`s very unclear what path our democracy takes from here, and the signs have not been reassuring over the past year.

Take just one basic measure of January 6th. How do we describe it? How do we talk about it? What do we call it? In the immediate aftermath of the attack, almost everyone was on the same page on that score. Even Republican lawmakers.


SEN. MITCH MCCONNELL (R-KY): The United States and the United States Congress have faced down much greater threats than the unhinged crowd we saw today. They tried to disrupt our democracy. They failed.

REP. KEVIN MCCARTHY (R-CA): The violence, destruction, and chaos we saw earlier was unacceptable, undemocratic, and un-American. It was the saddest day I`ve ever had as serving as a member of this institution.

REP. STEVE SCALISE (R-LA): Whether it`s anarchy or terrorism, they were trying to storm the Capitol and stop our democracy from working.


VELSHI: There was no meaningful disagreement in the immediate aftermath of January 6th, that whatever else it was, it was a violent attack on our democracy, one against which we must all unite.

But in the year since, not only Donald Trump and his allies, but Republican lawmakers who were in the Capitol when it was attacked, have engaged in this bizarre revisionist history in which the attack was either not that big a deal or was actually a peaceful patriotic protest, or was actually a false flag operation carried out by the leftist deep state or something.

And yesterday`s solemn Capitol Hill remembrance ceremony on the one-year anniversary of the attack, literally only two Republicans showed up -- Congresswoman Liz Cheney, and her dad, the former vice president, Dick Cheney. And I`m pretty sure this is the first time Democrats have ever been glad to see Dick Cheney walk tonight the House floor.

Speaking of former vice presidents, NBC News this evening has confirmed the first reported news by NPR that sometime this month, the January 6th investigation plans to invite former Vice President Mike Pence to appear before the committee. The chair of the investigation, Congressmen Bennie Thompson tells "NPR", quote, the vice president was put in a tough spot. The president was putting a lot of pressure on him to break the law, and he stood fast, and because of his respect for law, there were people who came to the Capitol a year ago wanting to hang him, and so if for no other reason, our committee really needs to hear, what are his opinions on what happened on January 6th, end quote.

Now, Mike Pence has walked a very fine line over the past year. He`s never disavowed his decision to carry out his role in certifying Joe Biden`s victory against Donald Trump`s wishes, yet on every other point he has been nothing but fawning toward Trump.

But if you want to see the shift, the shift from what we all agree that this was a violent attack on our democracy to Republicans aren`t even allowed to say it was a bad thing, you can see the shift happen in real time, for one Republican senator.

Ladies and gentlemen, I give you Senator Ted Cruz of Texas. Earlier --


SEN. TED CRUZ (R-TX): Solemn anniversary this week --


VELSHI: -- the January 6th assault on the Capitol, a quote, violent terrorist attack.

Now, that`s not new terrain for Cruz. He`s repeatedly called it a terrorist attack or called the attackers terrorists, but apparently Ted Cruz did not get the memo about Republicans no longer being allowed to say bad things about January 6th, and so Ted Cruz had to go on Fox News and grovel.


CRUZ: The way I phrased things yesterday, it was sloppy, and it was frankly dumb.

TUCKER CARLSON, FOX NEWS HOST: I don`t buy that, whoa, whoa, I`ve known you a long time, since before you went to the Senate. I do not believe that you used that accidentally. I just don`t.

CRUZ: So, Tucker, as a result of my sloppy phrasing, it`s caused a lot of people to misunderstand what I meant. I wasn`t saying that the thousands of peaceful protesters supporting Donald Trump are somehow terrorists. It would be ridiculous for me to be saying that the people standing up and protesting to follow the law were somehow terrorists.


I wasn`t saying the millions of patriots across the country supporting President Trump are terrorists.

I agree with you. It was a mistake to say that yesterday.


VELSHI: Please. Don`t hurt me.

I know we shouldn`t be surprised by anything anymore, imagine a year ago as rioters tore through the Capitol and members of Congress cowered on the House floor, staffers barricaded themselves in offices, imagine knowing that one year later, Republican U.S. senators would be raked over the coals for condemning these people, that a United States senator who wanted a political future in the Republican Party would have to go submit to a spanking on live TV for his harsh words about people who stormed the Capitol.

Now, Ted Cruz is getting a lot of mockery for that today, as well he should. It`s kind of funny, but it`s a symptom of something that`s deadly serious. When the two major political parties in a country cannot agree on the fundamentals of democracy, like, say, storming the U.S. Capitol in order to disrupt a Democratic election and the peaceful transition of power is a bad thing, when one party`s violent anti-Democratic rioters are another party`s heroes, history tells us things can get ugly fast.

And again, we kind of know how to see this, how to interpret it when it happens in other places, when we can see the forces of democracy and autocracy battling it out in the streets of, say, Kazakhstan.

But it is much harder to understand that battle, and how to fight it when it`s close up, when the democratic struggles we`ve watched in other countries become our own.

Joining us now is Ruth Ben-Ghiat. She`s a professor of history at NYU, the author of "Strongmen: Mussolini to the Present". She also writes newsletter on threats to the democracy called, "Lucid", where she says this week, quote, we are living through a right-wing counterrevolution, and January 6th was a milestone on America`s path away from democracy.

Professor Ben-Ghiat, it`s good to see you again. Welcome. Thank you for being with us tonight.


VELSHI: I want to ask you about this issue that you write about in your book, and other historians talk about, and that is that there is something about American exceptionalism, about the strength of belief that Americans have in themselves, which is a little bit different from patriots in other countries, that doesn`t allow us to see fundamental fall -- flaws or faults like the one that you described. There`s something that doesn`t want us to believe that what we saw a year ago was actually an attack on democracy.

BEN-GHIAT: Yeah, Americans have always been very invested in the idea of America as a beacon of freedom, and it has been for so many immigrants who have come here, but there`s a whole other side to American engagement with democracy, such as all the coups during the Cold War, the juntas hat United States propped up and helped to happen. It`s taken away democracy from countries.

And what`s to poignant about that is right now, we`re living through a very serious assault on democracy, and some of the people involved in that, Trump and Roger Stone, and Bannon, and Paul Manafort, these are people with decades of experience in wrecking democracies and propping up dictatorships, and funding dictators in the case of Trump`s money laundering.

And so, Trump -- it`s been a huge wakeup call. And, you know, because I`ve studied fascism, I saw very early who Trump was and I wrote "Strongmen" because I wanted to let my fellow Americans know that it can happen here, that over history many other cultures and peoples have been very amazed that it happened to them. And that Trump was not going to leave quietly because he was using an autocratic -- and a Democratic playbook to govern.

VELSHI: Let me ask you about the language. You talk about it being a wakeup call. Not everyone has woken up yet. I want to quote from your book in which you say for a political system that affects the lives of so many, authoritarianism remains a surprisingly fuzzy concept. We still lack a common language to speak about the governments of the 21st century authoritarian rulers who repress civil liberties but use elections to keep themselves in power. There are many Americans today who will say there`s nothing with our democracy, we have elections, and we will continue to have elections.

BEN-GHIAT: Yeah, the problem with that is -- and we can look to Victor Orban who Tucker Carlson and the GOP and even Mike Pence are all trotting over to Budapest. Today, you don`t normally ban elections, that`s less common, you hold elections and you fix them, like the ruler of Kazakhstan and Belarus, and Putin.


So you can say you are -- like Orban calls, the statement illiberal democracy. There`s nothing democratic about it but it`s what`s happening at the level of the states with GOP is assaulting our elections mechanism.

But this idea that you can still say you`re a democracy and leave a pocket of opposition, so we are in this period of time where many states are in a transition between democracy and autocracy, and some people use the word electoral autocracy, some people used the word anocracy, to use -- some people called the United States that after January 6th.

So, we do -- we`re searching for the language because authoritarianism is, itself, in transition.

VELSHI: I want to read something else that`s interesting from your book. One of the discussions is how we have this conversation with people who do not believe what you are saying to be the truth. You write the decay of truth and democratic dissolution proceed hand in hand starting with the insurgent`s assertion that the establishment media delivers false or biased information while he speaks the truth and risks everything to get the real facts out.

Once his supporters bond to this person, they stop caring about his falsehoods. This may be where we are with a good portion of Americans right now.

BEN-GHIAT: Yeah, and Trump did this right away, and, you know, I have a picture in my book about -- of Hitler with his mouth taped shut because there was a speaking ban on Hitler in Germany because of his hate speech. And the Nazi party made political capital out of that, calling him a victim.

So victimhood is very important to the strongmen profile, and the whole thing with Trump right now is that he is a very able propagandist, and a very able story teller who is always the victim. And so this very compelling story of him as the leader, the hero, the savior of the nation who`s been wronged, that something that`s rightfully his, the election has been stolen from him, and he`s trying to tell the truth.

He`s always had that persona, and it`s been really effective at building a fanatical base who are willing to go and wreck Congress for him. And I really see January 6th, it was a true event, it was a milestone on a race war, but it`s also an authoritarian leader cult rescue operation.

VELSHI: Professor, I am going to continue this conversation with you tomorrow morning. We`ll be having this again. Thank you for joining us this evening.

Author and NYU history professor, Ruth Ben-Ghiat, we appreciate your time tonight.

And last night, the historian Doris Kearns Goodwin told Rachel passing the voting rights bill in the Senate is the most important thing that can be done right now to prevent this slide into authoritarianism. We`ve got big news on the efforts to pass that bill today and we`re going to talk about it next.


VELSHI: Voting and civil rights champion, litigator and legal scholar Lani Guinier died today. She was 71 years old. Ms. Guinier had an illustrious career. She led the voting rights project and the NAACP`s legal defense fund.

In 1993, she was nominated by President Bill Clinton to be the assistant attorney general for civil rights, only to be withdrawn in the face of stern Republican opposition. She was also the first woman of color to receive tenure at Harvard Law School. Lani Guinier was also a student of democracy who believed that we all have a part to play in its upkeep.


LANI GUINIER, LEGAL SCHOLAR: Living in a democracy is not something that we inherit, it is something that we inhabit, it is not something that we consume, it is something that we actively build together.


VELSHI: Today, tributes for Guinier poured in across the country to, paying tribute to her decades long champion of voting rights and her passing comes as Democrats once again ramp up efforts to pass two stalled voting rights bills in the Senate.

Today, Senator Schumer again reiterated plans to hold a vote on changing Senate rules to help facilitate passage of a voting rights bill by Martin Luther King Jr. Day on January 17th.

King`s family plans to celebrate the holiday with a march to keep pressure on the Senate to pass the For the People, and the John Lewis Voting Rights Act.

But Martin Luther King Jr.`s son, Martin Luther King III, has stressed, quote, no celebration without legislation. President Joe Biden and Vice President Kamala Harris are facing pressure in other quarters to do more than offer forceful remarks on protecting the right to vote. On Tuesday, the president and vice president will visit Atlanta to talk about voting rights and efforts by Georgia Republicans to limit voting access in that state.

But ahead of their arrival, a coalition of voting rights groups have released a statement essentially saying, don`t come to Atlanta without a plan to pass voting laws. Quote, Georgia voters made history, and made their voices heard, overcoming obstacles, threats and suppressive laws, to deliver the White House and the United States Senate. In return, a visit has been forced on them, requiring them to accept political platitudes, and repetitious, bland promises. Such an empty gesture without concrete action, without signs of real tangible work is unacceptable.

As civil rights leaders and advocates, we reject any visit by President Biden, that does not include an announcement of a finalized voting rights plan that will pass both chambers. Not be stopped by the filibuster, and be signed into law. Anything less is insufficient and unwelcome, end quote.


Joining us now is Nse Ufot. She`s the chair and the CEO of the New Georgia Project, which is one of the groups that signed onto that letter.

Nse, good to see you again. Thank you for being here tonight.

That is a forceful letter. I`m curious about what you think the reaction will be, and what you`d like the president and the vice president to be able to do to meet the standards that are set out in that request.

NSE UFOT, THE NEW GEORGIA PROJECT CEO: Well, I will say that some of the earlier reactions have been quite visceral. I continue to think that we are being sort of harsh or sharp in our critique. But what our intent is, and what I think is happening is that we are creating the demand, right?

So, that there is no doubt that on this historic visit, where we have not only the president of the United States, but also our vice president coming to this historic place, the cradle of the civil rights movement, of the American civil rights movement, here are great state of Georgia, to talk about how our democracy, how our elections infrastructure is being attacked.

They should hear from activists and organizers and ordinary Georgians on the ground about what they would like to see from this visit. So, again, some people might frame it as a harsh criticism. I absolutely see it as articulating the demand from their base.

VELSHI: So what happens when the president and the vice president say, as they have said, we`re on your side on this thing, we fully agree with you, there`s no policy difference between what you and your fellow groups have done in Georgia and what you want done, and what the president wants done, but how do you propose, or do you not propose, that he get to that, in terms of getting something that looks like a plan, that can pass both houses of congress, we really mean the Senate, because we were able to pass it through the House and overcome the filibuster, what is it you`re asking specifically to be done?

UFOT: Well, here`s the thing, so Senator Schumer has already laid the plans, has articulated his ambitions to have a rule change vote on the 17th, commemorating the birth of Martin Luther King. What I will say is, listen, I haven`t served in that body for four decades, but I know someone who has, and that`s our president of the United States.

And so my -- it is our hope that with this 40 years of experience with the Senate colleagues and the bully pulpit that comes with being the president of the United States, right, that together he can work with the leaders in the Senate to articulate what the plan is, or if there`s no plan, if Republicans have so thoroughly advocated their responsibility to govern, that there`s no path forward, I think the American people need to hear that.

VELSHI: I want to talk about some of the very specific things. To some people this is an abstraction. If you have never stood in a line to vote or you don`t have problems registering to vote, or your polling place is very close to you and you don`t need transportation and you`re able to take a time off from work, there is an abstraction.

In Georgia, advocates, I just want to read this to our viewers, right now advocates and local leaders are fighting to stop the closure of seven out of eight polling places in Lincoln county, where over one-third of the voters are black, just next week the state legislature will convene with Republican leaders already proudly touting their plans to attack voting access, push to ban drop boxes and erect new hurdles in the path of voters.

This is very, very practical for you and your organization, and for voters in Georgia. It is literal, physical impediments to people voting.

UFOT: Absolutely. This is not an academic discussion, right? We are not sitting on our dorm room floor debating democracy, like what is happening? This is an active threat, in real time, our Republican leaders in Georgia and federally have not stuttered, not once, they are unified, this is a well-funded attack, and we are not just talking about Georgia. We`re not just talking about red states.

I will not shut up about the fact that 400 anti-voting bills were introduced in nearly every state in our country, in the ten months, in the eleven months, since legislative session started again in 2021. They are not playing. And I don`t understand why people are not acting with a sense of urgency.

There are tons of things in the president`s domestic policy agenda, and in the foreign policy agenda, that we absolutely need passed. The Build Back Better bill is brilliant. The changes to infrastructure, the expansion of the definition of infrastructure, to include our frontline workers, our service workers, the human capital, the people that make our country to continue to run and that have kept us safe, all of that is necessary, all of that is important.


And none of that will happen if we are not able to secure people`s participation in our elections. And I`m talking about rural counties in Georgia. And we`re talking about counties in California as well.

VELSHI: You underscore the most important point here, thanks again for being with us and the for the work you do.

Nse Ufot is the CEO of the New Georgia Project, we appreciate you being with us tonight.

Well, much more ahead here tonight, including a stunning faceoff at the Supreme Court today between justices who as Rachel would say live on Earth, and those who appear not to realize that we`re still in the middle of a pandemic. The great Dahlia Lithwick joins us next.


VELSHI: Today, the United States Supreme Court weighed in on some of the Biden administration`s key strategies for combating COVID, policies that would affect more than 100 million Americans.


The court heard arguments today in two cases, one case challenging the Biden administration`s policy to require vaccine or testing in the workplace, in companies with more than 100 employees. The other one, over whether the administration can require health care workers at health facilities that accept any federal funding, which includes most hospitals to receive vaccines.

Both cases brought by Republican state attorneys general, as well as some business owners. In one of the cases, two of the Republican attorneys arguing against the administration`s policies were forced to appear virtually, because, you guessed it, they both tested positive for COVID.

Throughout both cases, the liberal justices appeared to be shocked that officials would still be challenging these COVID safety policies, and wondered how blocking them from taking effect could possibly be in the public interest at the U.S. at a time when the U.S. cases are at an all- time high.


JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT ASSOCIATE JUSTICE: We have more affected people in the country today than we had a year ago in January. We have hospitals that are almost at full capacity. We have over 100,000 children, which we`ve never had before, in serious condition.

JUSTICE STEPHEN BREYER, U.S. SUPREME COURT ASSOCIATE JUSTICE: There are three quarters of a million new cases yesterday, new cases. That`s ten times as many as when OSHA put this ruling. The hospitals are, today, yesterday, full, almost to the point of a maximum they`ve ever been. The question is, how can it conceivably in the public interest, with three quarters of a million people yesterday, goodness knows how many today.


VELSHI: Despite the incredulity you heard from those justices, from Justices Breyer and Sotomayor, the court`s conservative majority today indicated it would be preparing to strike down the Biden administration`s more expansive of the two policies, the COVID employer rule while leaving the door open to potentially allowing the more narrow rule requiring mandates for some health care workers to stand.

As Dahlia Lithwick and Mark Joseph Stern put it today at, quote, where the liberal justices see sickness and death, the conservatives see a chance to crush government. It`s a familiar pattern we`ve been watching play out all year, whether it`s abortion rights or gun safety legislation or policies aimed at combating a global pandemic. The Supreme Court soon could become the place where major health and safety laws in America go to die. What is there to be done about that?

Joining us is Dahlia Lithwick, senior editor and legal correspondent for "Slate", whose latest piece is titled, "COVID is an emergency. To SCOTUS`s conservatives, it`s also an opportunity."

Good evening, Dahlia. Good to see you. Thank you for being with us.

You do this thing that most Americans don`t do, and you listen to these proceedings and you catch some of the nuances in them. And one of them that you caught today, you wrote about it, you said so acute is the contagion of medical misinformation coming from the court itself that the three liberals had to keep clarifying, for themselves as much as the public, that the government is not proposing an Orwellian employment hellscape so much as safe and effective mitigation efforts for a lethal virus that`s emptying workplaces, filling hospitals and debilitating medical professionals.

I was alarmed to read that, that you were feeling that this anti-vax nonsense we associate with people out there is surfacing at the court.

DAHLIA LITHWICK, SLAT SENIOR EDITOR & LEGAL CORRESPONDENT: It was almost impossible to miss. I mean, Justice Alito, pretty explicitly started talking with the solicitor general of the United States, Elizabeth Prelogar, how there have risks to this vaccine and he kept saying I don`t want to be misunderstood. I know the FDA has approved them, but there are risks, there are risks.

And she literally didn`t know how to answer him because he said by orders of magnitude. The vaccine is better than not the vaccine. But there was just this drip, drip of suspicion about the vaccine, suspicion about the administration`s motives, suspicions about how long this is going to last, the chief justice raised a sector of this nefarious agency by agency by agency, pre -- to sort of do an end-run around civil liberties. It really felt like you were taking crazy pills, that you weren`t sitting in the midst of a peaking, catastrophic pandemic, the level of mistrust that you heard from the court`s conservatives was just, frankly, shocking.

VELSHI: Let`s talk about the employer mandate. The night it was announced, I spoke on this show, to a former OSHA director, who made the point that the way OSHA works, and anybody who works in a place that has -- that`s governed by OSHA has those posters up either in the cafeteria or some central place, that is if there`s a hazard that you as an employer can prevent your workers from being exposed to, you have an obligation to do so.


And the way this mandate seemed to be phrased is that COVID is a hazard, and you can take steps to prevent your employees from getting it, so you should do so.

The former director seemed to think that that made it legally sound. What`s happened to that?

LITHWICK: Two things have happened. One, I think there was an argument being pressed today, that this isn`t the same as sparks or flames or something in the workplace, this is something different, and so it can`t be regulated as though it`s something connected to a conveyor belt or a workplace, to which Justice Sotomayor said this is as though the thing that is sparking or flaming is the human being who is coughing particles into the air. It`s exactly the same, the workplace is dangerous.

But the much larger project here, and I think you went into this in our initial question, is to do away with the administrative state, to do away with the regular story state that enabled agencies to create laws quickly and this is part of a much larger project to dismantle the EPA, to dismantle HHS, to dismantle OSHA, all under this large, large claim of, you can call it the non-delegation doctrine, you can call it the major questions doctrine, but basically the idea that all of government is somehow unconstitutional.

VELSHI: I think it`s worth -- I hope people read what you published today, and what you always publish, it`s an interesting Philosophical discussion about where some of these differences lie on this court.

Dahlia, as always, we appreciate your time. Dahlia Lithwick is the senior editor and legal correspondent for "Slate".

Also ahead, a group at the center of a pro-Trump election audit had a terrible, horrible, no good, very bad day. We`ll explain.

Stay with us.



VELSHI: We have run out of words to describe what we are undergoing, a crisis does not even come close, hospitals are literally full. Those are the words of a Minnesota Hospital Association today.

They go on, quote: The care capacity throughout all of Minnesota is severely limited. ICUs are full, emergency departments are full, medical surgical units are full. Hallways are full. And surgeries are being cancelled.

The prevailing wisdom about the current wave of COVID washing over this country is that omicron is spreading quicker, but for most people, it causes a milder infection, and that is true. But all across the country we`re seeing hospitals overwhelmed. The record for COVID hospitalizations in the United States was set a year ago, last January, when more than 140,000 people were being treated for the virus, but right now, we`re not far off from that.

As of this past Wednesday, more than 128,000 patients were currently hospitalized in the United States, remember, that hospitalizations generally lack cases by about two weeks. On Monday, the U.S. hit a worldwide record with a million new cases recorded in a single day.

Now, predicting hospitalizations is by no means an exact science but it is something we can forecast. The CDC currently predicts that we`re set to see a massive spike in the coming weeks, they forecast anywhere between 24,000, and 54,000 new COVID-19 hospitalizations every day by the end of the month.

Now, omicron does give most people a much milder case, but way, way more people are getting it. So it`s still overwhelming our hospitals, and things are likely to get worse. Omicron has made us entirely reevaluate the way we`re handling this pandemic, and it won`t be the last variant to which we must adjust.

So the question is, as COVID evolves, how do we evolve? And as we`re coming up on two years of this pandemic, with no end in sight, what will our new normal be? You may remember that during the presidential transition, between the time Biden won the election, and when he was inaugurated, the then president-elect made his own COVID-19 advisory board, so the administration could hit the ground running as soon as it took office.

Six of President Biden`s former advisers from that board took a very bold step this week. They published a series of articles laying out their plan, quote, a national strategy for the new normal of life with COVID. The articles are packed with a ton of different ideas, but the reason I say this is a bold step is because their plan is not the White House`s plan. They`re pitching a way to live with the virus, not a way to eradicate it.

Quote: It`s imperative that the United States leaders establish and communicate specific goals for COVID-19 management, benchmarks for the imposition or relaxation of public health restriction, investments and reforms needed to prepare for future variants and clear strategies to accomplish all of this.

In other words, they`re saying eradicating the virus is unrealistic. So U.S. leaders need to set different goals, come up with plans to meet them. It`s not a direct rebuke of the White House but it`s an argument for a different approach.

Joining us now, the co-author of one of those articles, Dr. Celine Gounder. Dr. Gounder is a clinical assistant professor of infectious disease at New York University School of Medicine. She`s a former member of the Biden- Harris COVID advisory board.

Dr. Gounder, it`s good to see you again, thank you for being with us.

I just want to understand whether or not I characterized that correctly, it`s not rebuke, but it is not the White House`s position. It`s not the CDC`s position at the moment.

DR. CELINE GOUNDER, FORMER MEMBER OF BIDEN-HARRIS TRANSITION COVID ADVISORY BOARD: That`s correct, Ali. I think what we are really trying to do here is to compliment the efforts of the administration who, frankly, are spread very thin, just trying to do the day-to-day running of the COVID response, where you don`t have the luxury to step back and think over what should be the strategy, what should be the benchmarks.


We have that luxury, and so we came together to put together these different articles outlining what we think the future strategy should be moving forward and how to get there.

VELSHI: The CDC under Donald Trump in the days -- the beginning days of COVID. I am trying to say this on television without swearing or something. It was a mess. It was a messaging nightmare. It was the height of inconsistency.

At this point, I would say that some people would say messaging from the CDC and federal government seems laggy and sometimes confused. What`s the problem, and how do you fix it?

GOUNDER: I think part of the issue is in a sense the current administration has gone to the other end of the spectrum with respect to controlling the messaging, coordinating is probably the better word messaging across the different agencies. And I think that it is important that they continue to avoid political interference and the science, but there may be a role for more coordination of messaging so that it -- so that the messaging is clear and it doesn`t get confusing when different people in the administration are saying slightly different things.

VELSHI: I think that is a good way to put it. I would take a slight lack of coordination rather than political interference in decisions that should be made by scientists and public health experts and doctors.

What is it you and your colleagues are proposing here? What does new normal look like and how would it be a departure from where the White House and the administration are in COVID?

GOUNDER: I think a lot of people were hoping to turn the clock back until November of 2019 and that`s simply not a realistic plan. Not to say that that`s what the administration has been trying to do. But I think many in the public wanted to go back in time.

The reality is that we are going to have to live with COVID. But I think the key is how do we live, how do we control the disease, the hospitalizations and the deaths here. Unfortunately, because of the nature of the virus and especially with omicron you have such a short period from the time of exposure to the time that the infection takes off and you develop symptoms, this is really not an infectious you can eliminate or eradicate, you are not even going to be able to prevent all infections and transmission.

So, really, our goal here is, you know, going back to what we were saying in the summer of 2020, flattening the curve, reducing the number of severe cases and hospitalizations and deaths and getting things down to a level where health care systems can cope with the number of cases. We know that if we can control the numbers, we can really manage patients much more effectively.

VELSHI: Dr. Gounder, we are out of time and I have a lot to discuss with you. The lucky thing is we got a chance to talk quite frequently. So, we will do this again. Thank you for being with us this evening.

Dr. Celine Gounder is a clinical assistant professor of infectious disease at the NYU School of Medicine. She`s a former member of the Biden-Harris COVID advisory board. Thank you for your time.

Up next, we covered a lot of court cases on this show, but something that happened in Arizona this week caught us by surprise. That`s next.



VELSHI: There are two words I really didn`t want to keep saying in 2022, but here we are: Cyber Ninjas.

You may recall that last year, pro-Trump elected officials in Arizona hired a small cyber security firm called the Cyber Ninjas to conduct a so-called audit of Maricopa County`s 2022 presidential election. Even though the audit turned out to be complete bullpucky, it`s worth noting due to the nature of the work, the Cyber Ninjas were subject to public records request.

Back in June, "The Arizona Republic" sued for those records and Cyber Ninjas were told to turn over the documents, but to this day, the Cyber Ninjas have not complied. Given that, the paper asked the judge overseeing the case to fine the Cyber Ninjas 1,000 bucks a day.

Well, yesterday, the judge said he doesn`t think $1,000 a day would do any good. Maricopa`s Superior Court Judge John Hannah ruled that the company`s non-compliance was worth 50 times that amount. He wants the company to pay $50,000 a day, saying he issued the ruling to put Cyber Ninjas on notice, and it appears the company took notice.

In a text message to NBC News, a company spokesperson said, quote, Cyber Ninjas is shutting down and all employees have been let go. If that is an attempt to avoid financial damages like the $50,000 per day for refusing to turn over documents, the company might be out of luck.

Yesterday, the judge warned he would issue orders against the individuals responsible for providing those records should the company refuse to turn them over. Judge Hannah said, quote, the court is not go to accept the assertion that Cyber Ninjas is an empty shell and that no one is responsible for seeing that it complies. Those fines will begin accruing today. The clock is officially ticking.

The contractors formally known as Cyber Ninjas can be transparent and deliver whatever records are outstanding or they can pay up. I wonder which door they would choose. As Rachel would say, watch this space.

That does it for tonight. Rachel is back on Monday. I`ll see you tomorrow morning for my show "Velshi." As Democrats move ahead with their big Hail Mary push for voting rights, there could not be more at stake. Tomorrow morning, I will talk to one of the key players working on building the votes to get it done, the Majority Whip James Clyburn.

And now, it`s time for "THE LAST WORD." Jonathan is in for Lawrence tonight.

Good evening, my friend.