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Transcript: The Rachel Maddow Show, 12/9/21

Guests: Timothy Snyder

Summary

The D.C. Circuit Court of Appeals handed down a serious defeat to former President Donald Trump`s efforts to keep records and documents from his time in the White House from ending up in the hands of the January 6th investigation in Congress. There are 110 countries from around the world meeting in President Joe Biden`s Summit for Democracy, to strategize against the global rising threat of authoritarianism.

Transcript

DAN VERGANO, BUZZFEED REPORTER: Okay, you know, like they thought they was going to be Ebola or Zika or MERS again. They did not think -- nobody thought that it was going to lead to something that needed this kind of response.

CHRIS HAYES, MSNBC HOST, "ALL IN": All right. Dan Vergano, thank you. Thank you for your reporting.

That is "ALL IN" on this Thursday evening.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend. Much appreciated.

And thanks to you at home for joining us this hour. I`m really happy to have you with us.

Before we start tonight, I`m just going to ask you to indulge me for just a second. I just want to say that if you have got only one hour to spend tonight watching the news, if you`ve only got one block of time that you can set aside to watch any of us cover the news tonight, do not watch me. Tonight, you should watch Brian Williams.

Tonight at 11:00 p.m. Eastern, it is Brian`s final broadcast here at NBC. Brian Williams has been with NBC and MSNBC for nearly 30 years. There is no one like him, and he has been here for the beginning. He was here in the anchor chair when MSNBC first opened its doors day one in 1996. That was it.

And tonight will be his last night. Whether you have followed Brian his whole career or if you`ve just become a fan of the "11TH HOUR", his absolutely brilliant, witty, insightful emotionally compelling snarky as I`ll get out incredible show that he does here right now, whether you`ve only become a fan during the "11TH HOUR" or been a fan from the beginning, you should just know that for all of us in the building as we say, it`s in the proverbial building now, but for all of us, his colleagues, Brian leaving, Brian stopping his show is a really, really big deal.

Having the opportunity to share a desk with him for major news events has been not just an honor for me, which it has been an honor, but beyond that, to tell you the truth, it`s how I have learned half the things I know about how to handle the responsibilities of the big desk.

Brian Williams in all candor is a great guy. He is a great colleague. He is incredibly generous. He is as hilarious a person as I have ever met in any context. And on the "11TH HOUR", he and that excellent staff of his, they do one of the best shows that have ever been done on cable news on any network and tonight, he is finishing, he is dropping the mic.

So, again, thank you for indulging me here for a second. But it`s a really big night for us here at MSNBC and the whole NBC family. Brian Williams is a big deal. His decision to step away is a really big deal for all of us, and I`ll just tell you, please do watch the "11TH HOUR" tonight for Brian`s final broadcast. You will be glad you have done so.

All right. Thank you for the indulgence on that. Now let`s get into it.

The D.C. Circuit Court of Appeals handed down a serious defeat to former President Donald Trump tonight. It`s a surprisingly resounding defeat. This is a case about his efforts to keep records and documents from his time in the White House from ending up in the hands of the January 6th investigation in Congress.

So this was the decision tonight, this is the federal appeals court in D.C. There`s district courts, circuit courts, and then the Supreme Court. This is a circuit court decision that`s an appeals court, one level below the U.S. Supreme Court, and the three-judge panel on this U.S. Circuit Court of Appeals, they ruled unanimously tonight that the Trump White House documents do indeed have to get handed over to the January 6th investigation.

They did pause the effect of this ruling for two weeks to give Trump the opportunity to appeal this ruling up to the Supreme Court if he wants to. And presumably he wants to. I think one of the things we have learned over these last five or six years with Trump as a political actor is that he sees the court system as a giant brake pedal on the bumper car that is his life in the public eye.

If you`re in trouble for something, you tie it up in court. Somebody wants to ask you questions about something, you don`t want to answer questions, tie it up in court. Somebody wants you to answer for something you have definitely done, tie it up in court. Hope it takes as long as possible so the other side runs out of patience or runs out of money or stumbles into a technicality or if you`re really lucky, the time will run out on whatever the exact conflict is that`s in question before the courts, the original question will become moot by the time any court otherwise gets around to ruling on it.

Delay, delay, delay, delay, delay, that`s the sum total of his litigation strategy. I think that was true from his business life, what we know of it, and it`s certainly been true of his extensive experience in the court since he has been in political life. In this case, in this case where he is trying to keep his records and his White House documents from going to the January 6th investigation, in this case, the brakes are failing.

[21:05:10]

The brake pedal is not working to slow this thing down. It just isn`t slowing down enough to allow former president Trump to totally dodge this investigation. Things are going much faster than they usually do through the federal courts because of the urgency of the January 6th investigation, because the seriousness of that matter, that`s under investigation.

I mean, if you look at the time line here, it`s really, really compressed. The date on which Trump first sued to stop the January 6th investigation from getting his records and documents, that was October 18th. That went to federal court in Washington, D.C. the court agreed to hear it on an expedited schedule. The federal court hearing that case ruled against him, November 9th was only 22 days from when he sued to when the judge ruled against him.

When the judge ruled against him, definitively, he filed an appeal up to the circuit court. That circuit court, the appeals court also decided they would take it on an expedited basis. They heard the case on November 30th. They just ruled tonight, December 9th, nine days after they heard the arguments in the case.

This is not the pace at which stuff usually gets through the federal court system. But now, Trump`s last hope, now that he`s lost both at the district court and at the circuit court. His last hope is to appeal to the United States Supreme Court. And the court has given him 14 days to decide whether or not he`s going to do that.

If he doesn`t appeal to the Supreme Court in time, Trump`s White House documents and records will get handed over to the January 6th investigators, 14 days from now would be when tonight`s ruling would go into effect barring an appeal to the U.S. Supreme Court, for the record, that would be December 23rd, wouldn`t that be a fine start to a merry Christmas for everyone.

Presumably, though, he`s going to appeal to the Supreme Court. And he`ll do so in time to stop the documents from being handed over.

As to what the Supreme Court will do with his appeal and how fast they`ll move if they do take the case, I really don`t know. Other federal court judges in the district court and the appeals court in Washington, D.C., they have been willing to hear this on a hurry up basis, a really fast basis. I think in part, according to the rulings because the judges have recognized the urgency of this investigation, because of the seriousness of January 6th and also because the investigation will probably get knee-caped if the Republicans take over the house and shut it down if they win the midterm elections.

I don`t know if the Supreme Court will take up the appeal from Trump at all. If they do take it up, I don`t know what kind of pace they`ll take it up on or be more amenable to his delay, delay, delay strategy. I don`t know what they will do. And neither do you.

Unless some of the justices are watching right now, in which case, hello, it`s very nice to meet you, have you thought about retirement? Seriously, you should think about it. Retirement`s nice.

Anyway. To the extent that it makes a difference to the Supreme Court how the lower courts have handled these matters, to the extent that the way these kinds of cases actually get to the Supreme Court makes a difference to the justices when they decide whether they`re going to take it up and how fast they`re going to move. It is worth noting that the court rulings against Trump on this issue have been pretty scalding at two different levels now.

The first time Trump lost in court on this issue last month, the district court judge`s ruling in that case is the kind of ruling that, you know, gets called excoriating. It was just a really blunt, very blunt spoken, very quotable, as they say, blistering ruling. That was the first ruling against them. The appeals court ruling tonight is also that kind of ruling.

"The Washington Post" tonight, for example, calls tonight`s ruling against Trump a, quote, resounding rejection of Trump`s case. "The Post" describing the ruling as having, quote, blunt and at times blistering language. They`re not wrong about that.

Let me share with you a little bit of what this ruling sounds like tonight. Quote, shortly before noon on January 6th, President Donald Trump took the stage at a rally of his supporters on the ellipse just south of the White House. During his more than one hour long speech, Trump reiterated his claims that the election was rigged and stolen. He urged then Vice President Pence who would preside over the certification to quote do the right thing by rejecting various states electoral votes and refusing to certify the election in favor of Mr. Biden.

Toward the end of the speech, President Trump announced to his supporters that, quote, we`re going to walk down Pennsylvania Avenue to the Capitol, and we`re going to try and give our Republicans the kind of pride and boldness that they need to take back our country.

[21:10:07]

Urging the crowd to demand that Congress do the right thing and only count the electors who have been lawfully slated. He warned that quote, you`ll never take back our country with weakness. He declared quote, we fight like hell and if you don`t fight like hell you`re not going to have a country anymore.

Shortly after the speech, a large crowd of President Trump`s supporters, including some armed with weapons and wearing full tactical gear marched to the Capitol and violently broke into the building to try and prevent Congress`s certification of the election results. The mob quickly overwhelmed law enforcement and scaled walls, smashed through barricades, shattered windows to gain access to the interior of the Capitol.

Police officers were attacked with chemical agents, beaten with flag poles and frozen water bottles, crushed between doors and throngs of rioters, as rioters poured into the building, members of the House and Senate, as well as vice president pence were evacuated from the House and Senate chambers. Soon after, rioters breached the Senate chamber.

In the House chamber, Capitol police officers barricaded the door with furniture and drew their weapons to hold off rioters. Some members of the mob built a hang man`s gallows on the lawn of the Capitol amid calls from the calls to hang Vice President Mike Pence. Even with reinforcements from the D.C. National Guard, the D.C. Metropolitan Police Department, Virginia state troopers, Department of Homeland Security and FBI, Capitol police were not able to regain control of the building and establish a security perimeter for hours.

The joint session reconvened late that night. It was not until 3:42 a.m. on January 7th that Congress officially certified Joseph Biden as the winner of the 2020 presidential election.

And this is the court ruling tonight. Quote the events of January 6th, 2021, marked the most significant assault on the Capitol since the war of 1812, the building was desecrated. Blood was shed, several individuals lost their lives. Approximately 140 law enforcement officers were injured. One officer who had been attacked died the next day.

In the aftermath, workers labored to sweep up broken glass, wipe away blood, and clean feces off the walls. Portions of the building`s historic architecture were damaged or destroyed, including statues, murals, historic benches, original shutters, and precious art work.

On June 30th, 2021, the United States House of Representatives created a select committee to investigate the January 6th attack on the United States.

That`s kind of the opening set piece for the court ruling tonight, gives you a sense of how this likely is going to go. The court in its ruling tonight, its unanimous ruling then describes Trump`s efforts to resist providing materials to this investigation. The ruling describes the lawsuit, for example, that he brought in October to try to block the investigation from obtaining his records. The court describes his resounding loss in the lower court in that case.

But this is important. It could become materially important in days ahead. The court in this ruling tonight is quite blunt about the legitimacy of the January 6th investigation. And they`re quite blunt about Trump`s failure to state any legal justification for him ducking their questions and their demands.

Quote: The very essence of the Article 1 power, meaning the Article 1 power in the Constitution, the part that defines the role of Congress, the very essence is legislating, and so there would seem to be few if any more imperative interests squarely within Congress`s wheel house that ensuring the safe and uninterrupted conduct of its constitutionally assigned business.

Here, the House of Representatives is investigating the single most deadly attack on the U.S. Capitol by domestic forces in the history of the United States. Lives were lost. Blood was shed. Portions of the Capitol building were badly damaged and the lives of members of the House and Senate as well as aides, staffers and others who were working in the building were endangered. They were forced to flee, preventing the legislators from completing their constitutional duties until the following day.

The January 6th Committee has also demonstrated the sound factual predicate for requesting these presidential documents specifically. The ruling says, quote, there is a direct linkage between the former president, former President Trump and the events of the day, then President Trump called for his supporters to gather in Washington, D.C. for a, quote, wild response to what he had been alleging for months was a stolen election.

On January 6th, President Trump directed his followers to go to the Capitol and, quote, fight for their country with the aim of prevents Congress`s certification of the electoral vote. The rule quotes from his speech that day. Trump said, quote, you`ll never take back our country with weakness. We have come to demand that Congress do the right thing, and only count certain electors.

And equally essential aspect of the rule of law says the ruling is the peaceful transition of power and the constitutional role prescribed for Congress in verifying the Electoral College vote, to allow the privilege of a no longer sitting president to prevail over Congress`s need to investigate a violent attack on its home, and its constitutional operations.

[21:15:22]

That would gravely impair the basic function of the legislature. President Trump bears the burden of at least showing some weighty interest in continued confidentiality that could be capable of tipping the scales back in his favor. He has not done so. He has not identified any specific countervailing need for confidentiality, tied to the documents at issue, beyond there being presidential communications.

Neither has he presented arguments that grapple with the substance of President Biden`s and Congress`s weighty judgments of why these documents should be handed over, nor has he made even a preliminary showing that the content of any particular document lacks relevance for the committee`s investigation. He offers instead, this is brutal, only a grab bag of objections that simply assert without elaboration his superior assessment of executive branch interests, insists that Congress and the committee have no legitimate legislative interest in an attack on the Capitol, and he impugns the motives of President Biden and the House.

That falls far short of meeting his burden and makes it impossible for this court to find any likelihood of success in his claims. That is all he offers and that is not close to enough.

The ruling actually says that. That is all he offers and that is not close to enough. It is the rare day when a verbatim portion of a federal court ruling belongs on a T-shirt or a cross stitch or a bumper sticker or perhaps as the permanent caption on a formal presidential portrait. That is all he offers, and that is not close to enough.

Here`s how the ruling ends tonight, just in case they hadn`t slammed the door on Trump hard enough at this point. This is how it ends. Quote: For all the foregoing reasons, former President Trump has not shown that he is entitled to a preliminary injunction.

We do not come to that conclusion lightly, the confidentiality of presidential communications is critical to the effective running of the presidency. Our Constitution divides, checks and balances power to preserve democracy and to ensure liberty. For that reason, the executive privilege for presidential communications is a qualified one.

What Mr. Trump seeks is to have an Article 3 court intervene and nullify the judgments of the president and Congress, to delay the committee`s work and to derail the negotiations and accommodations that the political branches have made. Essential to the rule of law is the principle that a former president must meet the same legal standards for obtaining preliminary injunctive relief as everyone else. Former President Trump has failed that task.

Benjamin Franklin said at the founding that we have, quote, a republic if we can keep it. The events of January 6th exposed the fragility of those democratic institutions and traditions that we have perhaps come to take for granted. In response, the president of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary for a matter of great constitutional moment for the republic.

Former President Trump has given this court no legal reason to cast aside President Biden`s assessment of the executive branch interests at stake or to create a separation of powers conflict that the political branches have avoided. The judgment of the district court, meaning the lower court, denying a preliminary injunction is confirmed. So ordered.

And that`s it. The lower court ruling with which excoriated Trump and told him, no, you are wrong, those documents have to go to the January 6th investigation, that lower court ruling in federal district court D.C. has now been upheld unanimously of a three judge panel of the appeals court that has jurisdiction in that area.

But that`s it. He`s now lost twice at the district court and at the appeals court unless Trump files his appeal with the Supreme Court and they take this up on an emergency basis, these documents will be handed over right before Christmas Eve.

Worth noting here, though, in terms of the implications, first of all, this, it should be noted is a terrible ruling for Steve Bannon, and Mark Meadows. Steve Bannon, long time adviser to President Trump, Mark Meadows his last White House chief of staff, both of the these gentlemen right now we think are preparing to argue to the court themselves that they don`t have to comply with the investigation themselves because it`s not a proper investigation, that seems to be one of the grounds on which both Bannon and Meadows are trying to justify to the court that they are not complying with the investigation just like Trump isn`t.

[21:20:10]

The problem for them now is that this ruling tonight, this is the appeals court that holds jurisdiction where both the meadows case and the Steve Bannon case are being heard. So an appeals court ruling on the legitimacy of this investigation is a definitive thing that the courts in that circuit have to abide by, and in this appeals court ruling tonight, the January 6th investigation is described as quite legitimate. It`s described in this ruling, Congress is described as having a uniquely vital interest in carrying out the investigation.

So to the extent that Steve Bannon and Mark Meadows were going to say we don`t need to comply, Congress is didn`t something they shouldn`t be doing, that argument is closed off to them.

So, for Steve Bannon, and Mark Meadows, their path to score out of this has gotten narrower. This is a bad day for them. Steve Bannon is being criminally prosecuted for defying the subpoenas for this investigation. The House is set to refer Mark Meadows for the same kind of criminal prosecution. It looks like that will happen on Monday, this upcoming Monday, just a few days from now.

But I think it`s also worth noting here, particularly when we`re trying to sort of ascertain the state of mind and potential desperation of some of the people involved here, I think it`s also worth noting that this ruling tonight, this unanimous excoriating ruling shutting down Trump`s efforts to avoid this investigation, it comes at what is otherwise a terrible time for former President Trump in terms of his legal woes, in terms of the various ways that he`s in trouble and under investigation.

"The New York Times" today expanded on the reporting from earlier this week that his big new media venture, this thing that he`s trying to launch is already caught up in two serious financial investigations. One of them for potential insider trading around that company going public with its shares. There`s an SEC investigation of this new venture already underway. That`s a separate thing. This inside trading is a second investigation, by FINRA, by the Financial Industry Regulatory Authority.

We learned today that the Trump ice business by the New York attorney general, potentially looking into bank fraud, tax fraud, insurance fraud and the core properties owned by Trump`s real estate company, that investigation by New York`s attorney general has apparently proceeded to the point that the office is looking to subpoena Trump to have him testify in person less than a month from now on January 7th.

Now, this is a civil fraud investigation from the New York attorney general`s office, how serious is that, if you`re Donald Trump you know that`s quite serious. In his life, it`s been very serious already. It was civil action like this from the New York attorney`s general`s office in the past that forced the shut down of Trump`s fake charity, the Trump foundation. He had to pay out millions of dollars in that case after the New York attorney general accused him of operating it as a fraudulent charity.

It was also another civil action from the New York attorney general`s office in the past that forced the shut down of Trump`s fake university, the settlement in that case required Trump to pay out $25 million cash to people who had sued him alleging that Trump University was also a massive fraud scheme.

That was actually the way that he started his presidency. Like he got elected president, and immediately had to spend $25 million paying people off in the settlement for a big fraud case. That should have been a sign about how things were going to go, right?

But in terms of what this might mean to Trump and how he understands the seriousness here, he already has lost his charity, and his "university", and had to pay more than $25 million out. Thanks to New York attorney general`s investigations in recent years.

Now New York`s Attorney General Tish James wants Trump`s deposition in this latest New York attorney general civil investigation, this time of core business. And this civil investigation where she wants the deposition from him, that civil investigation is proceeding in parallel with an ongoing criminal investigation of his business that`s being carried out both by the attorney general`s office, and the state prosecutor in Manhattan. That`s the criminal prosecution that has already led to felony charges against his business itself, and his chief financial officer.

So, Trump`s about to be subpoenaed to give a deposition in the civil case that is unfolding in parallel with that criminal one. What`s he going to do? If he does respond to the subpoena and he gives testimony in the civil case, presumably, that testimony he gives in the deposition could be used against him in the criminal case.

[21:25:02]

If he decides, okay, then I`m not going to testify, he refuses to testify and takes the Fifth, well, him taking the Fifth can be used against him in a civil case. When they take the 5th in a criminal case, they can`t use your silence against you. But in a civil case they can, might make it more likely the civil case was going to go against him. The civil cases from the New York attorney general`s office have already shut down his fake foundation and his fake university. Here they are going after his core business.

So, you`re going to testify and worsen the criminal case or you`re not going to testify and worsen the civil case. He`s between a rock and a hard place, you have to testify or not. You`re going to take the Fifth? What are you going to do here?

And that demand for him subpoena, for him to be deposed under subpoena from that New York attorney general`s investigation, that arises today on the same day that he loses resoundingly in federal appeal`s court in efforts to try and keep his records safe and sound and away from the January 6th investigation.

It happens on the same day that one of the lawyers who advised him on the whole scheme he planned around January 6th, the guy who advised him on this whole plan of having pence reject the electors from certain states on January 6th and that`s how Trump would be able to stay in power.

That lawyer who drafted that scheme for Trump in legal memos, John Eastman himself appeared before the January 6th Committee today, and invoked his Fifth. He invoked his Fifth Amendment right against self-incrimination. That lawyer John Eastman is pleading the 5th. Trump Justice Department, Jeff Clark is also pleading the Fifth.

Longtime Trump adviser Roger Stone says he too is going to plead the Fifth. Conspiracy theorist chest hair supplement salesman Alex Jones, the Infowars guy, he too says he`s going to plead the Fifth. And now, Trump himself has to decide if he`s going to plead the Fifth in the New York attorney general`s civil investigation of his business, which is unfolding in parallel with a criminal investigation of his business which has already resulted in felony charges against his core business and his chief financial officer.

You`re going to plead the Fifth? It seems to be kind of a trend.

In March of 1973, Nixon had been reelected 1972. Sworn in January of 1973. Watergate was not erased by him running for reelection, he hoped it would be. Watergate got way, way, way more serious for Nixon in the early months of his second term.

In march of 1973 as Watergate was finally starting to crash down around Richard Nixon, this was around the time his chief of staff H.R. Haldeman that Nixon finally seemed to understand the seriousness of Watergate could really mean, how much trouble he could be in if the Watergate cover-up unraveled.

In March 1973, March 22nd, 1973, Nixon was caught in the Oval Office tapes strategizing out loud how he thought all his Watergate henchman should handle the congressional investigation to Watergate. What they should do to try to make it all go away.

He said on the White House tapes, they`re really hard to hear. I play the tapes for you, but if there`s so much static, and they`re hard to hear. But we have the transcripts of them.

What he said on the tapes, March 2nd, 1973 was this, he said, I don`t give a bleep what happens. I want you all to stonewall it. Let them plead the Fifth amendment. If it will save it, save the plan, that`s the whole point.

Plead the Fifth. Save the plan. Save the cover up. That`s the whole point, so said Richard Nixon in March 1973. That was his plan. Everybody pleads the Fifth, maybe we can all stick together.

How`d that work out in the end? Because we are entering the plead the Fifth save the plan phase here as well. We`ll see how it works out this time.

More ahead tonight, stay with us.

(COMMERCIAL BREAK)

[21:33:21]

MADDOW: Tonight, a federal appeals court issued a blistering unanimous ruling rejecting President Trump`s efforts to avoid turning over his White House documents and records to the January 6th investigation. This is the second straight court ruling on this matter that Trump has lost. He lost definitively in an excoriating ruling from the federal district court judge who first got the case. He appealed that to the appeals court. This was three judges on that appeals court that just unanimously ruled against him again.

In response to that unanimous ruling tonight, we`ve got this just in from the chair and vice chair of the January 6th investigation. This is from the chair, Bennie Thompson, Democratic congressman from Mississippi, and vice chair, Liz Cheney, Republican congresswoman from Wyoming.

They said, quote, we applaud the ruling, which respects the committee`s interest in obtaining White House records, and President Biden`s judgment in allowing those records to be produced. Our work moves ahead swiftly. We will get to the truth.

Swiftly being a very, very operative word in that statement.

Joining us now is Barbara McQuade, former U.S. attorney for the Eastern District of Michigan.

Barb, it is always great to see you. Thank you so much for being here.

BARBARA MCQUADE, MSNBC LEGAL ANALYST: Oh, my pleasure, Rachel.

MADDOW: First of all, let me ask you about the pace here before I ask you about the content of this ruling. I ran down the time line a little bit, and sort of blithely asserted to our audience that this is unusually fast for the federal judiciary to move. President Trump filed suit saying I don`t want to hand over those documents in mid October. The first ruling happened before two weeks was up in November. He filed an appeal that was heard before the end of November, and nine days after it was heard, we have this definitive unanimous ruling of the appeals court against him again.

[21:35:05]

I believe as an observer that that`s really fast. Is that true?

MCQUADE: Absolutely true, Rachel. This is lightning pace, this is the Usain Bolt of court calendars. Ordinarily an appellate case like this could take up to a year by the time all the briefing was held, all the oral arguments were done and the court considers it and issues an opinion. And like the Supreme Court, it`s only three judges, not nine justices, and still, they exchange opinions and go back and forth, and it can take many, many months if not a year for a case like this to come out. And for it to happen in a matter of weeks like this really is lightning fast.

MADDOW: Now, the appeals court did say while it issued this very blunt ruling today, in a 3-0 count among those three judges, they have stayed effectively, the implementation of this ruling for 14 days to give Trump the chance to appeal this to the United States Supreme Court.

What do you think will happen there, and what will happen in terms of the timing and how the pace of this has been handled thus far? Obviously, at the end of the road, the documents are either going to get handed over or they`re not. What do you make of the potential time line, if and when he appeals it up to the Supreme Court in court?

MCQUADE: Well, it could be that it goes in its normal course and takes many months to shake out. The law is quite clear here, it`s why we saw such strong language from the district judge, as well as the strong language from the appellate court. It wouldn`t surprise me to see the court decide this on a shadow docket, which is where it makes procedural decisions and decide not to take this up and just let this court of appeals decision stand.

That to me seems the most likely thing and it seems likely that that could happen within a matter of weeks.

MADDOW: If you were Trump would you wait until like 11:59 p.m. on December 22nd to try to get much time as you can to get in the Supreme Court.

MCQUADE: Yes, you might as well, and I think the big game that Trump is playing here is stall. If they can stall this production of documents until past the midterm elections, it could very well be that Republicans win and shut down this whole investigation, and so I think so.

I think it`s like when a football coach is waiting as the clock tick down, and wants to call the time out so the field goal kicker, the other team doesn`t get the ball back. I think it`s the same kind of thing. You wait, you`re watching the clock tick down, and at the last possible minute, 13 days and 23 hours, boom, that`s when you file the appeal.

MADDOW: I should know better than to go to you in Michigan at this time of year and ask you something and assume there could be an answer that doesn`t reference football. I should know better than to assume football might not come up.

MCQUADE: Go Blue, baby.

MADDOW: Well done, Barb. Thank you so much, Barb. It`s great to see you here. Thank you.

MCQUADE: Thanks, Rachel.

MADDOW: Barb is a former U.S. attorney for the eastern district of Michigan and a die hard Michigan fan.

All right. We`ve got much more ahead here tonight. Stay with us.

(COMMERCIAL BREAK)

[21:42:17]

(BEGIN VIDEO CLIP)

KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: We know that our democracy is not immune from threats. January 6th looms large in our collective conscience, and the anti-voter laws that many states have passed are part of an intentional effort to exclude Americans from participating in our democracy. In our democracy and every democracy, a representative government is foundational. And the right to vote is fundamental.

(END VIDEO CLIP)

MADDOW: Vice President Kamala Harris speaking today at President Biden`s Summit for Democracy. This is this multiday event that President Biden promised from the very first days of his administration. It`s 110 countries from around the world meeting in this Summit for Democracy, to strategize against the global rising threat of authoritarianism.

President Biden today himself gave a speech about strengthening democracies worldwide. He did also point the finger, what`s failing in American democracy right now here at home. He made a case once again for the urgent need to pass voting rights legislation here in the U.S. Senators Joe Manchin, and Kyrsten Sinema from his own party do not share the president`s concern along these lines. Those two are standing in the way of that legislation getting through the U.S. Senate.

But President Biden did also overtly affirm, reaffirm the U.S. commitment to fighting authoritarianism abroad and to helping other countries stand up for the right to dissent, and for a free press, and the right to vote.

Two countries whose ears might have been burning at that point in the speech are Russia and China. And over the course of this summit for democracy, they have made it very, very, very clear that they`re really mad they weren`t invited.

Now that the summit is underway, CNN had good reporting today about how both of those authoritarian regimes are very, very aggregated about this summit happening without them, and very upset with the way President Biden is defining a summit of democracies, essentially in opposition to the type of authoritarian regimes both China and Russia are modeling.

Should we see it as a good sign that China and Russia are mad? Does this mean that this is working? Does that mean that is potentially a potent meeting that it bothers them so much? Also how is it playing that the summit is underway in terms of America`s really severe challenges with threats to our own democracy at home while we are trying to once again lead the world in the defense of democracy?

Joining us now is Timothy Snyder. He is professor of history at Yale University. He`s the author of the invaluable guide "On Tyranny: 20 Lessons from the 20th Century".

Professor Snyder, thank you so much for being here tonight. It`s always nice to see you, sir.

[21:45:02]

TIMOTHY SNYDER, PROFESSOR, YALE UNIVERSITY: Glad to be with you.

MADDOW: Are you -- what do you make of Russia and China being so overtly aggravated by President Biden convening this summit. I assumed they would ignore it. They have been doing quite the opposite.

SNYDER: I think it makes perfect sense. What Mr. Biden has done was to take away this idea that democracy is just there, that it`s just passive. That democracy takes itself for granted.

For the past couple of decades, the Russians and Chinese have attacked democracy as a sitting target. The Russians treat democracy as hypocritical. They point to the flaws in practice. The Chinese point to call democracy a mess, it`s chaotic, it will never last, and essentially for the last couple of decades, we treated democracy as something that defends itself.

What this summit is it presents democracy as a value, something to aspire towards, it`s a summit for democracy. And that`s a problem for Russia and China because as soon as democracy becomes a value, as soon as it starts to defend itself, rather than being just a sitting target, they may have to change their tune.

MADDOW: What about the idea of democracy not being able to defend itself, and there needing to be an overt and transnational campaign to defend it, stand it up, support it, and pick it up when it falls.

Can countries effectively help each other protect their democracies? Is there a historical example for the United States effectively being able to do that? Is this the basic idea of the summit that democracies coming together can help democracy worldwide, is that borne out by history?

SNYDER: I think it actually makes perfect sense. History shows democracies rise and fall together. It`s very hard to make it as a democracy on your own surrounded by territorially or politically or economically by non- democracies. History gives the example of 1938 when Britain and France in perfect democracies failed to support Czechoslovakia, and that was the path to the Second World War.

History gives the example after the second world war of the Americans generously and farsightedly aiding the returning West European democracies. Marshal Plan is the one of the factors that allowed for European integration and the return of the most impressive set of democracies, Western, and Central and Northern European democracies.

So, history shows that democracy rises and falls together. That includes the last 15 years. Just as America has had approximate, just as our democracy has been in decline so has the rest of the world. And part of the reason for the summit for democracy is recognizing it`s not necessarily about America telling other people what democracy is. We all have to learn from one another, and if we approach it in that spirit, I think all democracies will be better off.

MADDOW: You have argued in a way that really sticks with me that part of the reason authoritarianism is on the rise in our generation is because the opponents of democracy in the 21st century have been better organized than the proponents and defenders of democracy. I do think, as you say, that the summit, at least conceptually is an idea to try to do that, to get better organized in promoting and defending democracy.

If there were to be tangible outcomes that came out of this kind of an effort, if there was something that you were looking for that would show that those of us who want to defend democracy, and promote democracy are getting better organized, what would those things look like?

SNYDER: Yeah, I think this summit just has to be round one. The purpose of this summit is to show that democracy is going to articulate and defend itself. That we`re going to present democracy as something which is not just a status quo, we`re going to take lumps from everyone but the democracy is a better system, and democracy means you know who your next leader might be. Democracy means people get represented, leads it a better policy. Democracy can not only defend itself, but say hey, it`s a better system.

As you move in to round two, three, and four, you might be looking for specific policy outcomes, like, for example, joint efforts to help small D democrats around the world who are not in power, being oppressed, joint efforts to block the spread of dark money because oligarchs around the world park money where it`s safe, generally inside democracies, joint efforts to support not just freedom of the press as a principle but joint efforts to support investigative journalism around the world, which is probably the single most institutional defense of democracy.

MADDOW: Timothy Snyder, professor of history at Yale history, the author, among many books, of the invaluable "On Tyranny," which you can now read in graphic novel form, in addition to its original form. Professor Snyder, it`s always a pleasure and an honor to have you here. Thank you tonight.

SNYDER: Thank you very much.

MADDOW: Some of what Professor Snyder is talking about there, the Biden administration is trying to do, they`ve rolled out just this week a new anticorruption efforts, new efforts to support independent media around the world. They`re trying. They`re trying. We`ve got so far to go here at home right now.

We`ll be right back.

(COMMERCIAL BREAK)

[21:54:13]

MADDOW: This is the overlap of really cool and really worrying. Spring of last year, spring of 2020, early on in the pandemic, we didn`t have enough COVID testing to track the virus well. Researchers from a biotech start up in Massachusetts tried to fill the sort of surveillance gap on COVID with waste water. Literally with the water we flush down the toilet. It sounds super gross but it totally works. They learned that they really can carefully test sewage samples, test waste water to find traces of COVID infection.

You can`t tell who individually is affect instead this way, but you can find how much COVID is circulating in a particularly community by looking at the waste water from that community. Waste water testing is used all around the country now to reliably predict localized COVID outbreaks even before people start to feel ill and go get tested as individuals.

[21:55:05]

The company that pioneered this, Biobot Analytics, has continued to track through waste water in Boston, and communities throughout the country throughout the pandemic which is technically a cool thing. Their most recently findings are worrisome in Massachusetts.

Look at this, This is Biobot`s waste water data for the Boston area. You can see the big spike sort of right in the middle of the graph there. That was around December 2020, January 2021, the big winter surge last year for Massachusetts, the Boston area.

That waste water testing predicted the surge that we saw in positive tests before we started to see those positive test results.

But now look again at that waste water graph because this goes on the time axis here goes left to right on the bottom of your screen and all the way over on the right, the current data, that`s the COVID level they`re detecting if Boston waste water right now. Look how high that peak is compared to the worst of the peak last year. Their waste water testing shows that a big outbreak is heating up and about to spike.

And again, this is the Boston area right now. We know that after we see COVID in the waste water, we see a spike in positive tests. We know after we see positive tests we see a spike in hospitalizations and a surge in deaths. That has been the pattern.

That is where the Boston area is in terms of waste water testing. Massachusetts hospitals are already near capacity. The state`s hospital beds are at 93 percent capacity already, and Massachusetts is a small state, but hospital beds in the states surrounding Massachusetts have started to fill up too.

Governors in New York, Maine, and New Hampshire have all just deployed the National Guard to help health workers deal with the current overload with patients in the states to prepare for patients that are coming. That`s the most worrying thing.

Hospitalization capacity already tapped out ahead of what appears to be an oncoming very large surge.

Watch this space.

(COMMERCIAL BREAK)

MADDOW: All right. That is going to do it for us tonight. Again, a reminder that 11:00 p.m. Eastern tonight, Brian Williams will be doing his final broadcast of "THE 11TH HOUR". It`s mandatory viewing for all of us.

I`ll see you again tomorrow night.

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

Good evening, Lawrence.