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Transcript: The Rachel Maddow Show, 12/3

Guests: Zoe Lofgren, Jeh Johnson

Summary

Interview with Rep. California congresswoman and member of the January 6th investigation, Zoe Lofgren. Interview with former secretary of homeland security during the Obama administration, Jeh Johnson.

Transcript

CHRIS HAYES, MSNBC HOST: Vicky Ward, the podcast is "Chasing Ghislaine". The Substack is Vicky Ward Investigates. Vicky, thanks for your time tonight.

That is "ALL IN" for this week.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Happy Friday, my friend. Thank you very much. Much appreciated.

And thanks to you at home for joining us this hour. It`s nice to have you here. We`re going to start tonight with some exclusive reporting on a head- turning development that you have not heard about anywhere else but relates to the January 6th investigation.

Now, as we`ve been covering this week, part of the drama in the January 6th investigation right now has surrounded a former Trump Justice Department official named Jeffrey Clark. Jeff Clark is the person with whom President Trump apparently cooked up a scheme by which the Justice Department would try to induce Georgia and reportedly several other states to flip the results of the election.

Mr. Clark reportedly drew up documents falsely claiming that the Justice Department was investigating serious fraud in the presidential election, and therefore, advising Georgia and other state legislatures and states won by Joe Biden that in light that serious supposed fraud in the election that the Justice Department was supposedly investigating, those states should reconsider sending Biden electors to the Electoral College. In other words, they should think about sending Trump electors to the Electoral College, effectively calling their states for Trump, even though Biden had won.

Now, the -- the broader picture here of course is that the U.S. Justice Department has brought criminal prosecutions against more than 600 Americans who took part in the physical attack on the Capitol on January 6th. But that physical attack really appears to have been just one part of a larger effort to flip the election results and keep Trump in power even though he lost re-election.

The U.S. Justice Department for all the prosecutions against all of the individuals, they have shown no outward sign at all they are investigating anyone other than the individuals, that they are investigating any other part of the plot to flip the election results in Georgia and in other states. The U.S. Justice Department appears only to be investigating, only to be prosecuting individual rioters who physically entered the Capitol. They really have shown no outward sign having to do anything with the broader scheme to intimidate election officials and try to force the election results to be overturned which in every state in the country and under federal law is a crime.

So, you know, it`s possible the Justice Department is looking at that and that may be there is some investigation that has no public facing component and we don`t know about it. But as far as we can see, there is nothing there in terms of federal investigation and potential federal prosecutions. That has left it to the January 6th investigation in Congress.

And they have been looking at that. They have been looking at the January 6th attack as part of a larger plot to overthrow the election, as just one physically violent component to a larger organized scheme.

And Jeff Clark, this Trump Justice Department official who reportedly drew up plans for the Justice Department to hold a press conference announcing that it was investigating massive fraud in the election, Jeff Clark who reportedly drafted a letter to Georgia and to other states, advising the states of this supposed investigation which wasn`t actually happening and thereby advising them they needed to hold off sending Biden electors to the Electoral College, they needed to reconsider electoral slates.

This week, that official Jeff Clark was held in contempt by the January 6th investigation, for him refusing to comply with their subpoena for testimony and their subpoena for documents related to his role in this whole mess. And part of the drama that we all covered over the course of this week was the committee finding him in contempt but sort of holding in abeyance the question of whether they refer him for criminal contempt prosecution. They can make a referral to the Justice Department to criminally prosecute him for contempt if they want. They did that with Steve Bannon. They may do that with Jeffrey Clark. They haven`t yet done that with him. That will be resolved shortly.

Here is the thing though. As part of the process of holding Jeffrey Clark in contempt this week, again the committee did hold him in contempt. The referral to the Justice Department is another matter that remains to be seen -- as part of the process of holding him in contempt, which is a formal process, the January 6th investigation this week publicly released all their doings thus far with Jeff Clark.

Their letters to him and from him, communications with his counsel, they also released the transcript of what happened when Jeff Clark actually showed up for his deposition.

[21:05:01]

And Trump adviser Steve Bannon didn`t even though show up for his deposition in response to a subpoena. Jeff Clark did show up. But he still didn`t testify. He refused to answer any questions at all while he was there.

And we can see that because the committee released the transcript. We have the transcript now. We can see how that went. And it really is 50 pages like sort of eye-crossing pages of him and his lawyer refusing over and over again to answer any questions.

And he is not asserting individually some specific source of privilege that gives him an excuse to refuse to answer each individual question. He won`t say in fact why he is refusing. He makes these sort of blankest gestures in the direction of privilege, but he doesn`t actually claim any individual privilege, any reason why he can refuse to answer questions. He just refuses to answer all questions.

And then after this goes on for pages and pages and pages and pages, in -- it`s supposed to be the middle of the proceedings, he and his lawyer just get up and walk out. Here a little section of it.

Clark`s lawyer, quote: I will say for maybe the fifth or sixth time, we`re not going to engage in legal argument on the points in the deposition. If you want to engage in legal argument in letters or court filings, we`re happy to do that but we`re not doing it in this deposition. So I think we have -- you know, reached an impasse.

Congressman Jamie Raskin, well, I have two follow-up questions. Jeff Clark then jumps in: I would say we have not reached an impasse. But for today, I think that we`re done. Clark`s lawyer: We`re done. Jeff Clark: Yeah. Clarke`s lawyer: We`re done for the day.

Congressman Raskin: Well, I just want to follow up on this question about attorney client privilege. Who is the attorney and who is the client covered by the attorney-client privilege here? Clark`s lawyer: It`s asked and answered. Congressman Raskin: Well, forgive me, but who is the attorney and who is the client in the attorney client privilege asserted in your letter?

Clark`s lawyer: We`re happy to engage in that dialogue in correspondent with committee counsel, but we are not doing it in this deposition, Congressman. Congressman Raskin: wow, okay. I yield back whereupon he yields back to the chief counsel for the investigation, the top lawyer for the investigation. Who then says, quote, okay, well, I can tell you that we`re not going to conclude this deposition.

But then sure enough Jeff Clark and his lawyer decide they are concluding the deposition, they get up and walk out.

And so we can now see from what happened we he came in and refused to provide them any testimony that`s why he was held in contempt. They subpoenaed him for testimony. Yes, he showed up but wouldn`t testify wouldn`t give any fem and also wouldn`t give any documents to the committee.

But you have to -- you always have to keep reading at this point. It`s the reason why I like whatever you go to do an interview off-site anywhere or you ever get raw footage of somebody like going somewhere to have cover something and have a conversation, you always want the camera running before people want walk in the room and the camera running after you say thank you and it`s over. Because the best stuff happens after you walk out of the room or after somebody decides it`s over.

Because after Jeff Clark left this deposition, after the committee counsel is like, no, we`re not done here and Clark and his lawyer got up and walked out anyway, well, the committee kept talking. The investigation -- the part of their part of the deposition they kept going.

We know from the transcript that they had to release this week that something quite interesting happened after Jeff Clark left the room. The investigative counsel for the January 6th investigation, the lawyer for the investigation hired to lead the inquiry here, after Clark and his lawyer get up and walk out he said, well, nevertheless we`re here. We`re meeting this is an official meeting of the investigation. Let`s put on the record all the things I would have asked Jeffrey Clark about. Had the dude not just up and stormed out.

And for the purpose of getting it on the record, he gives this whole long list of things that they wanted to ask Jeff Clark about. And it`s a big whole gamut, runs for three or four pages in the transcript. They want to ask him about him potentially using personal email and personal devices to do his government work. They want to ask him about his communications with President Trump after the election about the election.

They say they believe that Jeff Clark had never met President Trump until after the election. And they want to know why it is they met then and what they talked about after the election. And they want to ask about communications with Trump campaign people. They want to ask him about communications with Steve Bannon and Rudy Giuliani and the other people who had set up the January 6th war room at the Washington, D.C. hotel.

This whole long list of things they wanted to ask him about. But then right in the middle of it there is this. We wanted to talk specifically with him about efforts that he proposed the Department of Justice take with respect to election fraud.

[21:10:02]

We wanted to ask him, for instance, about a draft letter to Georgia officials that he put forth that was the Justice Department asking Georgia legislative officials to convene a special session and consider the appointment of an alternate slate of electors. We intended to go through specific representations in that draft letter and ask for their basis.

Now get this. Look at this. Quote, I also wanted to ask him about metadata in the draft letter that indicates some involvement with the White House communications agency, and the drafting or preparation of that letter.

Hold on. You wanted to ask him about what, involvement by the White House in that letter to Georgia officials telling them they needed to flip the election results?

In this letter here, this is the proposed letter reportedly drafted by Jeffrey Clark, a letter to Georgia from the U.S. Justice Department telling the state legislature in Georgia that the Justice Department effectively wanted them to flip the election results in that state and declare Trump the winner. Do not send Biden electors to the Electoral College even though Biden won, so says the U.S. Justice Department.

According to the chief investigative counsel at the January 6th investigation, quote, the metadata in that draft letter indicates some involvement with the White House communications agency within the drafting or preparation of that letter. The White House was involved in that? That wasn`t just this guy Jeff Clark drafting this letter on Justice Department letterhead telling Georgia and other states that they needed to flip the election results? The Trump White House was involved in that?

Here`s why that`s a head snapping development. After this deposition of Jeffrey Clark, this sort of failed deposition of Jeffrey Clark, where he refuses to give actual testimony refuses to ask questions. He and his lawyer storm out in the middle. After the transcript of the failed deposition was released by the January 6th investigation this week, including this fascinating record of everything they said in the room after Jeff Clark and his lawyer left, after they publicly released that document this week, Jeff Clark surprised everyone by telling the committee, surprise, actually upon reflection I`m pleading the Fifth.

He told them he is going to invoke his Fifth Amendment rights against self- incrimination. Surprise, what led him to that? Well, the chair and the vice chair of the committee have both gone on the record publicly in the last couple days once on this show once in the committee hearing room, to say in their view, why it appears that Jeff Clark is now taking the Fifth.

(BEGIN VIDEO CLIP)

REP. BENNIE THOMPSON (D-MS): Obviously, he is aware that something went on that`s illegal. And rather than be responsible and answer, he is pleading the Fifth. Now, the question is, did you participate in these illegal activities in the White House as you know? He recommended a process by which the elections could be manipulated in certain states. Well, that`s clearly illegal.

REP. LIZ CHENEY (R-WY): Mr. Clark last night indicated that he intends to invoke the Fifth Amendment privilege against self-incrimination, apparently because he believes testimony about his interactions with President Trump would tend to incriminate him and thus may subject him to criminal prosecution.

(END VIDEO CLIP)

MADDOW: When the chairman of the committee Bennie Thompson and the vice chair of the committee, Liz Cheney, made the comments this week about why it is Jeff Clark is pleading the Fifth, a couple of things stuck out a bit that I didn`t understand when they made the comments.

Chairman Thompson saying now the question is, did you participate in those illegal activities in the White House? Why is he saying that Clark`s potentially illegal activities may have been in the White House, or with the White House?

Similarly, Liz Cheney, when she said that he believes testimony about his interactions with President Trump would tend to incriminate him? Well, why is it that you`re saying that Jeff Clark pleading the Fifth has something to do with his interactions with President Trump? What is it about President Trump and the Trump White House that is implicated in why Jeff Clark might be pleading the Fifth? What he believes might incriminate him?

To put an even fine are point on it, you just heard from the chair and vice chair of the investigation. Here`s Congressman Adam Schiff as well who`s a member of the investigation speaking with my colleague, Lawrence O`Donnell.

(BEGIN VIDEO CLIP)

LAWRENCE O`DONNELL, MSNBC HOST, "THE LAST WORD": 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?

REP. ADAM SCHIFF (D-CA): Well, Lawrence, I want to be careful about my answer to 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. Any effort to overturn a lawful election as we appear to have witnessed with Donald Trump ought to be investigated.

I don`t want to talk more specifically about Mr. Clark. But -- 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 g to efforts to get Georgia to withhold the slate of electors or maybe send a slate that doesn`t represent what the voters in the state decided as well as what an effort to similarly other states withhold their electors as well.

(END VIDEO CLIP)

MADDOW: Any effort to overturn a lawful election as we appear to have witnessed with Donald Trump ought to be investigated the former president`s oaks in trying to overturn the election in Georgia. The questions pertinent in terms of Jeff Clark taking the Fifth Amendment to avoid his -- to protect himself against self-incrimination appear to be the efforts to get Georgia to withhold the slate of electors. That were elected when Joe Biden won that state.

You know, maybe that whole scheme to get Georgia to flip its election results after the fact to not send Biden electors to the Electoral College even though Biden won the state of Georgia, maybe that whole effort was a crime. Jeff Clark was already in trouble for refusing to give testimony and refusing to give documents to this investigation when he was subpoenaed to do so. They were going to hold him in contempt and they have. The question of whether or not he will be referred for criminal prosecution in terms of that contempt remains to be settled.

But in the process of holding him in contempt they released this transcript of his deposition that he walked out of. And after they released the transcript of the deposition and he got to see what happened there after he walked out of the room, he surprised everybody and announced that he would plead the Fifth.

One of the things he and his lawyer can read in black and white like the rest of us happened in the deposition room after he was gone. And among other things it was word from the chief investigative counsel of January 6th investigation that one of the things they wanted to ask about was the letter he drafted to flip the election result in Georgia, the thing that seems like a crime, oh and by the way we also want to ask you what`s with the White House metadata on the document?

Because it`s one thing to commit a crime, it`s another thing to commit a crime in cahoots with the White House. What was the White House involvement in drafting that letter to Georgia? Because that letter to Georgia may have been a crime. We`ve confirmed tonight with the source close to the committee that what`s in the transcript of that deposition is accurate. One of the things the investigative counsel on the committee wanted to ask Jeff Clark is about metadata from that letter that suggests it was authored by the White House communications agency.

A spokesperson for the committee telling us on the record today, quote, Mr. Clark will have to -- excuse me -- will have another opportunity to answer these questions when his deposition resumes tomorrow morning. And we hope he chooses to cooperate fully.

Well, since the spokesperson gave us that statement this afternoon, Jeff Clark apparently contacted the committee and told them actually he won`t appear for the deposition tomorrow morning, not even just to plead the Fifth. He now says he has a medical issue. That means he can`t come in and testify tomorrow at all not, even just to take the Fifth.

But this story further developed today yet when yet mother lawyer involved in the same side of the reported scheme to flip the election results, lawyer John Eastman, he too has now advised the committee he is going to take the Fifth. He is going to invoke his Fifth Amendment rights against self-incrimination.

Quote: Dr. Eastman has a more than reasonable fear that any statements he makes pursuant to the subpoena will be used in an attempt to mount a criminal investigation against him. Politico was first to report on John Eastman taking the Fifth as they noted in coverage, quote, Eastman`s decision is it an extraordinary assertion by someone working closely with Trump to attempt the overturn the 2020 election results.

As somebody who worked directly with the president to try to overturn the election results is taking the Fifth, saying he needs to invoke his right against self-incrimination. He worked with the president in those efforts.

John Eastman, of course, has become best known in the saga for his memos that laid out the part of this scheme by which Vice President Mike Pence would refuse to accept the electoral votes from some states when he was supposed to be counting votes on January 6th in the floor of the Senate. By Trump -- excuse me -- by Pence refusing to accept those electoral votes, Trump would thereby stay in power. Eastman is the one who sketched out the scheme in his legal memos.

There is another bit of involvement here by John Eastman that may be more directly relevant to what`s happened in this last 24 hours. As reported today in "The Arizona Republic," John Eastman like Jeff Clark -- he was apparently also directly and personally involved in the part of this scheme by which individual states got pressured that they should not send in Biden electors even though bide won their states. In the article today in the Arizona Republic about January 6th investigators contacting numerous officials in Arizona recently as part of their investigation, today, "The Republic" describes one of the matters that January 6th investigators discussed with the Republican speaker of the house in Arizona.

Quote: Speaker Bowers rebuffed a request by Attorney John Eastman, a law professor at Chapman University. Eastman wanted Bowers to help test a legal argument that state legislator haves the authority to replace presidential electors at their discretion. Eastman reached out to Arizona legislative staff on January 3rd wanting to discuss the upcoming meeting of Congress on January 6th. He said he was representing then President Trump. He said he wanted to talk with Speaker Bowers on and others about theories about, quote, why Arizona electors could and should be objected to, according to a person familiar with the conversations.

Eastman spoke with Speaker Bowers and others on January 4th. Eastman claimed there were reasons for doubt about Arizona`s election results. But when pressed for details, he acknowledged he was unfamiliar with the facts in Arizona according to a person familiar with the discussion.

I don`t exactly know the facts are but I do know that you guys in the state legislature need to send Trump electors to the Electoral College, or at least send no electors. Do not send Biden electors even though you`ve already certified that Biden won the state.

He wanted to talk with Bowers and others about his various theories about why Arizona electors could and should be objected to.

Lawyer John Eastman reportedly making that case directly to state officials in Arizona, pressuring state officials in Arizona that they should not send Biden electors even though Biden won the state, they should send no electors or Trump electors. They couldn`t say that Biden won.

John Eastman reportedly made that case to state officials in Arizona, now he is suddenly pleading the Fifth in the investigation. That is the same case that lawyer Jeff Clark reportedly tried to make to state officials in Georgia. Jeff Clark is now suddenly pleading the Fifth in the investigation.

In the case of Clark and what Clark drafted to send to Georgia officials, the January 6th investigators say they have evidence that what he did in trying to use the Justice Department to trying to pressure a state into flipping results, according to the January 6th investigation, Mr. Clark did not do that alone. Metadata shows White House fingerprints on the document. That`s new.

Does the Trump White House get to plead the Fifth?

We`re going to speak with one of the senior members of the January 6th investigation in just a moment.

But this -- this development in their investigation is a sobering thing. People take the Fifth. People now taking the Fifth a all of a sudden unexpectedly potentially crimes committed in trying to overturn the election and now suddenly the question of whether the potential crimes involved not just advisers to the Trump White House but people inside the Trump White House itself, who left fingerprints, who left digital metadata on their work that the committee now has. That`s a lot.

More ahead.

(COMMERCIAL BREAK)

[21:28:34]

MADDOW: Re-upping the exclusive reporting we have tonight about former Justice Department official Jeffrey Clark. After the president election, Mr. Clark drafted -- reportedly drafted letters that he wanted the Justice Department to send to Georgia and reportedly several other states, essentially instructing Republican state legislatures that they should look into flipping election results to handing the election to President Trump, even though Biden had won in those states.

Well, this week the January 6th investigation voted to hold Mr. Clark in contempt for not cooperating. He had refused to give testimony or provide documents. He walked out of his deposition with his lawyer.

But at that deposition after he walked out, one of the committee lawyers revealed that this letter Clark had drafted for the Justice Department to send to Georgia state officials, the letter advising them to flip the election results, this letter contained metadata suggesting it had come from the White House, specifically an office called the White House communications agency.

Now, we don`t know exactly what that means. But we have confirmed tonight with a source close to the committee that indeed metadata from that letter suggests that the letter was authored by the White House communications agency. Well, now, Jeffrey Clark has decided as of this evening that he is not only going to plead the Fifth the next time he appears before the committee, but his next appearance before the committee will not be tomorrow as was previously scheduled. He now says that he has a medical issue that precludes his attendance.

Joining us now is California congresswoman and member of the January 6th investigation, Zoe Lofgren.

[21:30:02]

Congresswoman Lofgren, it`s a real pleasure to see you tonight. Thank you very much for joining us.

REP. ZOE LOFGREN (D-CA): Thanks for having me, Rachel.

MADDOW: So, I know that some of this is matters that`s in the middle of the investigation and isn`t necessarily publicly facing. Everything that I`ve discussed is publicly facing. I don`t have any secret information.

Let me ask you if I misstated any of it or you think I`ve got any of it the wrong way around.

LOFGREN: Not that I`m aware of, no. It`s interesting, isn`t it?

MADDOW: It is interesting. What is the significance if we know it of the fact that there is White House metadata on that letter from the Justice Department to Georgia state officials telling them to flip the election results?

LOFGREN: Well, that`s one of the questions we wanted to pose to Mr. Clark and that I hope we will yet be able to pose to him, on the depositions now been scheduled to December 16th, I think. We have ascertained that his health condition is real. It`s not a ruse.

We did ask for evidence of that. And are satisfied it`s legit. So rescheduled.

MADDOW: In terms of that letter, we do have these sort of parallel situations in which we know from public reporting that Mr. Clark was part of the effort to try to direct what appeared to be sort of the gravitas on the authority of the Justice Department toward an effort to induce states to flip their election results. We also know from public-facing reporting that Mr. Eastman appears to have participated in a similar effort targeting at least legislative officials in the state of Arizona.

Another member of your committee, Adam Schiff, has been clear in his public remarks that he believed those efforts to pressure the states to change election results, that those were crimes.

Do you believe that those were crimes? Do you believe that the potential criminal behavior as described in that public reporting is why Mr. Clark and Mr. Eastman are now fearing enough for their own -- fearful enough that they are invoking their Fifth Amendment rights.

LOFGREN: Well, it could well be. You know, it`s worth reading what the Fifth Amendment actually says. No person shall be compelled in any criminal case to be a witness against himself. Well, it looks like Mr. Clark and now Mr. Eastman think that there is going to be or could well be a criminal prosecution based on their actions. So they`re in a position to know more than I am what they did.

And I think it`s a very troubling and quite possibly criminal.

MADDOW: If there were -- was evidence either of state crimes, obviously, interfering with or intimidating election officials I believe it`s a criminal in every state, certainly a crime in federal elections. If your committee turns up sound, voluminous uncontested evidence that such crimes were committed, what would the process be? Obviously you guys can`t bring a prosecution.

Would it go through prosecute of a formal referral to the Justice Department?

LOFGREN: Well, it`s speculation to some extent. But you`re right. We`re a legislative body. We`re trying to get all of the facts, so that we can tell the American people and also adopt legislation that would help prevent something like this from happening again.

But certainly any information that we are able to discover will be made available to executive branch members who are prosecutors, either in state or the federal level. We`re not doing this to keep secrets. We`re doing it to shed light.

MADDOW: One of the things that we have learned in local reporting in Arizona and in Michigan if not in other states this week, is that investigators from your committee have made contact with local officials in those states. "Arizona Republic" had a big long run down of all the different people at various governments who have been contacted by investigators from your committee. We also have public officials in Michigan have been approached and done interviews.

Can you tell us what the idea is behind that part of the investigation going be out and talking to individual -- individual officials in states that might have been pressured?

LOFGREN: Well, we sent our investigators around the country to get information where we have leads that something is amiss. So, you know, Mr. Clark, Mr. Eastman are not the only individuals with information. We`re checking with others. And, you know, we`ve had more than 250 interviews so far. We`ve got more than 25,000 documents in our possession. We`re working hard to pore through it.

And, you know, there is no one person that has all the information here. So, it`s a matter of putting all the pieces together as best we can. But we do believe that both Clark and Eastman have information that the committee needs. They have a right if they think they`re going to be prosecuted on a case by case, question by question basis to assert their Fifth Amendment right against testifying against themselves. The committee will then have to make a judgment on whether to allow immunity so we can get the testimony. And that`s something that we`ll have to consider.

MADDOW: California congresswoman, member of the January 6th investigation, Zoe Lofgren, Congresswoman Lofgren, it is a real pleasure to have you here, late on a Friday night. I appreciate you for making the time. Thank you.

LOFGREN: Happy to do it.

MADDOW: Again, the breaking news we`ve got exclusively that the January 6th investigation appears to have discovered that the incriminating letter that was drafted from the U.S. Justice Department to Georgia state officials essentially inducing them to flip the election results in that state, rather than just being the product of Jeffrey Clark, a single Justice Department official, who announced he is going to plead the Fifth in the investigation, who has already been held in contempt by the investigation, rather than just being his work as has been described in public reporting, the investigation discovered White House metadata on that document which shows that it appears to be the product of the Trump White House.

If that product if that work product is in fact a crime, raises all new questions as to where this investigation is going.

Much more ahead here tonight. Stay with us.

(COMMERCIAL BREAK)

[21:40:55]

MADDOW: If you are going to join the United States military, roll up your sleeve. These are the 17 vaccinations that U.S. service members have to get before their initial entry to the military and basic training. There is two columns here the ones on the left, you see Hep A, Hep B, flu, measles, mumps, rubella, polio, tetanus, all those things. Those nine are mandatory full stop, no question. Everybody in the U.S. military gets all of those first thing.

The ones on the right hand side of the screen and the right hand column, those are regional and role specific. So, they could be mandatory depending where you head or what you`re doing.

Well, today, we got news that for members of the Air Force portion of the National Guard and Reserves, members of those forces that did not meet yesterday`s Pentagon deadline to get a COVID vaccination, those service members have a little more time to face the music, but I do mean a little.

An Air Force spokesperson telling the AP today that for this weekend, unvaccinated Air Guard members can still report to duty for the drill weekend as usual. They`ll have the opportunity to get the vaccine on the spot at their base this weekend. While they`re there, quote, commanders will use this opportunity to educate their personnel and vaccination requirements and the consequences of not complying with the mandate. That all needs to happen quickly this weekend because those consequences start on Monday.

As far as the Pentagon is concerned, this isn`t a complicated thing. If you`re not vaccinated, you are not deployable. You are not ready in military readiness terms. And so we got a clear and uncomplicated order from the secretary of defense this summer. Whether or not troops are currently on active duty they have to get vaccinated against COVID like they have to get vaccinated against all other things. So they`re ready if called to serve.

This weekend, Defense Secretary Lloyd Austin put out another memo making it clear the ramifications are from military personnel who decide that they`re still not to get vaccinated. He says the secretaries of the Air Force and the Army by this upcoming Monday will have to implement policies so that members of the National Guard who refuse to get vaccinated, they won`t be eligible for federal training or for pay, all of which effectively means a slow but steady path toward being discharged out of the U.S. military.

And that affects not only your currently military career. It affects benefits. It means you can stop earning credits through the GI bill, for example, which is a huge deal.

The Pentagon has been very clear here. They are not playing games. Get vaccinated or get out. If you are not vaccinated you are not ready. We are not interested in mounting a military force that is not ready. And so you get the shot or you leave.

And for most of the country, you know, this is just an issue between the Pentagon and service members who for whatever reason refusing to get vaccinated. But in the state of Oklahoma, the Republican governor there, Kevin Stitt, has decided to make this his personal standoff with the Pentagon, one that he won`t have to pay for though, one that guardsmen and guardswomen in the state have to pay for.

In the past month, he fired the previous head of the Oklahoma National Guard, replacing him with a new guy put out a M.O. saying no matter the federal rules are, Oklahoma National Guard members don`t have to get vaccinated. You should check with the Pentagon about that.

Now, just yesterday the Republican governor of Oklahoma along with that state`s attorney general filed a lawsuit trying to argue that the vaccine requirement is somehow illegal. In the end, they will likely lose this fight and it will cost the taxpayers of Oklahoma, whatever it`s going to cost them to fight the fight. It will cost of the governor and attorney general nothing terms in of their personal lives and their careers. In fact, they might even score Republican political points for this.

But the guard members following them off the cliff who are stuck between the orders of their governor and the very clear orders of the Pentagon, if they decide to follow what their governor is saying they are facing discharge and the loss of their entire military career and veterans benefits.

So where does this go from here?

Joining us now I`m pleased to say is former secretary of homeland security during the Obama administration, Jeh Johnson.

[21:45:02]

Before that, Secretary Johnson was general counsel of Defense Department, general counsel of the Air Force.

Secretary Johnson, it`s a real pleasure to see you. It`s been too long. Thanks for making time to be here.

JEH JOHNSON, FORMER SECRETARY OF HOMELAND SECRETARY: Thanks, Rachel. Glad to be here.

MADDOW: Am I raising the relevant points here? Are there other aspects of this that you feel like the viewers should know about in order to understand the conflict and how it`s likely to resolve?

JOHNSON: First, I think it`s important to take a step back here. The active duty U.S. military and the guard in any state, when federalized under the commanding control of the president of the United States can be ordered deployed, can be ordered to take a hill for example under hostile fire, yet there is resistance to taking a vaccine ordered by the secretary of defense that so far has proven to be safer than aspirin. That`s something I`ll never quite understand.

As you pointed out in your lead-in, there are somewhere between nine and 17 vaccines, the U.S. military is required to take in order to deploy. So I will never understand this.

Now, from the more legal perspective, what`s important for your viewers to understand is that a member of the Oklahoma National Guard wears two hats. One, you`re a member of that guard`s state militia working for the governor but also a member of the United States Army National Guard or United States Air Force National Guard. And to be in the United States Guard, you have to be federally recognized.

And to be federally recognized, which is what guard members really want, you have to meet federal qualifications prescribed by the Department of Defense. And as of August, when the secretary of defense issued his memo, that includes getting the COVID vaccine.

And if you do not take the vaccine you do not comply with the guidelines, you risk losing your federal pay. You`re no longer able to drill with the Federal Reserves. And you risk being removed from the United States National Guard.

So this is not a complicated issue. This is not some great issue of federalism or the 10th Amendment. It`s simply if you`re going to play in my league you got to play by my rules.

MADDOW: And when I first learned that the Oklahoma governor was choosing this fight, we looked around to try to figure out if there was historical precedent. And there is historical precedent from a few different eras in U.S. history, including as recently as the 1980s during the Reagan administration where some governors decided they didn`t like particular deployments, didn`t like the things the guardsmen and guardswomen from their state were asked to do in terms of federal deployments. They fought on those grounds.

But we couldn`t find any precedent for fight in terms of readiness for there being a dispute between governors to the extent they have control over their state guard troops, and the federal government in terms of what it takes to be deployable. What it takes to be ready in military terms.

Is this in fact new on those grounds?

JOHNSON: Correct.

MADDOW: That`s correct.

JOHNSON: So far as I can see -- I think I`m a pretty good judge of history. What guard members really look forward to is federal pay. Being in what we refer to as Title 32 status, which means you have to meet the federal qualifications to be in the guard. You can`t have it both ways.

And so, it`s theoretically possible that somebody could leave the United States Army National Guard and be in a state`s militia. But they lose the federal pay. And in that respect, in my view, the governor of Oklahoma is doing a great disservice to his guard members if he goes down this road.

MADDOW: And he does appear to be committed to going down the road.

But again, it will be -- he will be writing the check and they will be cashing it in terms of their careers and in terms of impact on their livelihoods.

Former secretary of homeland security during the Obama administration, former Pentagon general counsel, Jeh Johnson -- Jeh, it`s really, really nice to see you. Come back soon.

JOHNSON: Thanks, Rachel. Thank you.

MADDOW: All right. Much more to come tonight. Stay with us.

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(BEGIN VIDEO CLIP)

STATE SENATOR DAYNA POLEHANKI (D), MICHIGAN: There are 50 schools in Michigan today that are closed not just because of copycat threats, but because student anxiety is through the roof. These kids have had enough of our crap. They`re going to start demanding that we do something.

And what can we do, Senator? We have lots of bills that have been introduced. Background check bills. We`re going to have a magazine capacity bill. Red flag bills. And primarily safe storage bills that could have -- could have mitigated this whole tragedy.

So don`t say, Mr. President, that there`s no solutions. There are plenty of solutions. But where is the will of the majority party to do something? Our students are suffering today. And we can`t do nothing.

(END VIDEO CLIP)

MADDOW: That was Michigan State Senator Dana Polehanki speaking today at the Michigan state legislature. This, of course, after four Michigan students were murdered this week at their -- at their high school.

A 15-year-old fellow student opened fire with a semi-automatic handgun that he had brought to school, killed these four students, shot and wounded six other students, and one teacher.

[21:55:05]

This absolutely terrible case, we watched unfolded over the course of this week. It took a dramatic turn legally today. The county prosecutor announced that in addition to charging the alleged shooter, this 15-year- old, they`re charging him as an adult, charging him with four counts of first-degree murder and also terrorism charges.

The prosecutor today announced today that her office is also charging his parents with four counts of involuntary manslaughter. She called their conduct in this instance, quote, criminal. The prosecutor explained today in a lengthy press conference that this 15-year-old suspect was sent back to class the day of the shooting.

School officials had found a disturbing drawing he had made depicting a gun and bodies that had been blown apart by gun violence and bullets and the words "blood everywhere" and "the thoughts won`t stop, help me."

Those drawings by the suspect were found on the morning of the shooting. The parents were called in to the school, shown the document, asked to get their son into counseling. The parents decided they would leave him in school that day and sent him back to class.

What the school did not know but the parents did is they had just bought that son, they just bought the boy a gun for Christmas. When they had come into the school to respond to that drawing, they did not, reportedly, check his backpack to see whether or not he had that gun with him.

The prosecutor said he did have the gun with him at that time but nobody looked, and again, he was sent back to class. Just a few hours later, he would allegedly use that same gun to murder four of his classmates.

As of tonight, the parents are nowhere to be found. State and federal authorities have been trying to find and arrest the parents for most of the day. They say they have sent their fugitive apprehension team looking for them.

But as of right now, they`re still MIA.

We`ll be right back. Stay with us.

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MADDOW: It has been a week. It has been a whole week. Whew.

That`s going to do it for us for now. I`ll see you again on Monday.

Now it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL."

Good evening, Lawrence.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.