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Transcript: The Rachel Maddow Show, 2/16/2021

Guest: Bennie Thompson, Roberta Kaplan, Timothy Snyder�


MSNBC features a special report, "Justice After Trump".


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

And thanks to you at home for joining us this hour.

We are producing a bit of a special report tonight, on justice after Trump, in many senses of that phrase.

Let me explain. I`m going to start with something we covered here on Thursday night, just a few nights ago. Thursday night here on the show, we did the first national interview with a prosecutor in Georgia who has opened a criminal investigation into one of the charges that was laid against President Trump at his impeachment trial, which, of course, ended this weekend.

In addition to the specific allegations about President Trump prompting the violent attack against the Capitol, which interrupted and tried to stop altogether the certification of the presidential election results, you will recall that in the article of impeachment that passed the House was the basis for the trial in the Senate, President Trump was also impeached for threatening and pressuring Georgia state officials to falsify election results in that state, telling them they should announce that they had recalculated the vote totals in Georgia.

He told them they should tell the public that they had found enough votes to declare that actually, Donald Trump and not Joe Biden had won Georgia.

Now, former President Trump was impeached for that in the House. It was part of what he was tried for in the Senate, but it`s also a crime in the state of Georgia to pressure an official into messing with the administration of an election. And so this veteran prosecutor, 19-year prosecutor in the county where that alleged crime occurred in Fulton County, Georgia, has now opened an investigation into the pressure that was put up against Georgia officials around the administration of the presidential election, Fulton County, Georgia, is where Atlanta is, Atlanta, of course, is the state capital of Georgia.

Fulton County is a majority minority county. It`s the largest county in the state. Fulton County District Attorney Fani Willis confirmed to us here on Thursday night that her investigation does specifically include President Trump`s calls to Georgia officials pressuring them over the election results.

And in letters that she wrote to Georgia officials announcing that she was opening that inquiry, telling Georgia state officials and multiple agencies they needed to preserve records and documents related to these potential crimes because she was opening this investigation into it, the district attorney explicitly spelled out in the letters that a new grand jury is scheduled to convene in Fulton County, Georgia, next month, in March, and she told multiple state officials in Georgia that when the Fulton County grand jury convenes next months, she intends to present evidence to the grand jury, to potentially seek subpoenas and ultimately if the evidence warrants, criminal indictments, related to the circumstances that are under investigation.

Well, now, guess what`s happening in Georgia in response to all that. Just guess. Now, Republicans in the state legislature in Georgia have introduced a resolution to change the Georgia state constitution, suddenly, very quickly, right now. They want to change the constitution so District Attorney Fani Willis cannot proceed with this investigation into potential crimes by Donald Trump, at least not the way she`s planning to do it. Georgia Republicans in the legislature have decided that they would like to create a new mandate in the state Constitution, they`re going to amend the Constitution, to say if a crime that`s being investigated has anything to do with an election, then the prosecutor investigating that crime can`t convene a grand jury in Fulton County to look at that. A prosecutor can`t convene a grand jury in any one county.

Republicans in the state legislature now are trying to change the state Constitution so that majority-minority Fulton County cannot have its grand jury decide on subpoenas and evidence and potential indictments in a case like this. No, new rule that they want.

Their new proposed rule is for any crime related to an election, Georgia is going to now create a brand-new kind of grand jury. One that is not convened in any one county, particularly I presume a majority minority county. Instead, if it`s an election-related crime, a brand-new grand jury must convene of the type Georgia has never had before, a grand jury that must be convened from all over the state. And this is only for election related crimes. But that will insure, of course, that conservative white rural parts of Georgia are where the grand jury comes from, to consider any potential election related crimes.

Hmm. Why the rush? You guys seem a little rattled. What are you worried about?

The Republicans in the Georgia state legislature have a majority. They would need a supermajority to pass this because they`re trying to change their state`s constitution here, to protect former President Donald Trump. They`re very, very unlikely to get that supermajority to amend their state constitution, but it is telling that they`re willing to go to these lengths to try, and to try to do it right now before that grand jury convenes in Fulton County next month.

Former President Trump is now facing criminal investigation in New York state over financial issues. He`s facing a civil investigation brought in New York state by the state attorney general that relates to potential bank fraud, potential tax fraud, and potential insurance fraud. Now, that case could easily become a criminal investigation as well. Former President is now also facing criminal investigation in Georgia, and today, we learned that Georgia Republicans in the state legislature are willing to turn the place upside down to shelter him from that criminal investigation. Really seems like they`re worried.


SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER: President Trump is still liable for everything he did while he was in office, as an ordinary citizen. Unless the statute of limitations has run, still liable for everything he did while he was in office. Didn`t get away with anything yet. Yet.

We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.


MADDOW: He didn`t get away with anything, yet. He is not immune from criminal prosecution or from civil liability. That was the Senate Majority Leader Mitch McConnell explaining why he voted to acquit the president but he still insists sort of demands almost that the president face justice in a court of law.

Well, today, the chairman of the Homeland Security Committee in the House, Chairman Bennie Thompson of Mississippi, filed a civil lawsuit against former President Trump for what President Trump did to incite and encourage the attack on the Capitol in January 6th. Now, there is no sign at this point that Republican Senator Mitch McConnell is going to join Chairman Thompson in that civil suit, even though he and other Republican senators have loudly, publicly tried to justify their votes to acquit President Trump with these impassioned calls for Trump nevertheless to be held accountable by courts of law. Will they help with that?

So far, it`s just Chairman Thompson who is trying to pursue accountability here through the civil court system. Chairman Thompson says other members of Congress will soon join him in this civil suit against the president. We`re going to talk with him live here in just a moment about that. But despite Senator Mitch McConnell of Kentucky and Senator Rob Portman of Ohio and Senator Thom Tillis of North Carolina and other Republican senators all saying publicly that former President Trump should be hauled into court to answer for his egregious behavior that led to what happened on January 6th, despite that, despite those public claims justifying their votes to acquit Trump in the court of impeachment, no Republicans at least yet appear to be joining in the civil suit to hold President Trump accountable.

But here`s the thing, though. The issue of justice after Trump is proceeding on a few different levels now. I mean, there is the question of justice for the culminating violent attack of his presidency by which he tried to stay in power by stopping the ascendance to power of his successor. More than 200 people now facing federal charges for their part in the pro-Trump mob attack on Congress. Again and again in federal court filings the defendants are saying their co-conspirator or the person who directed them to commit the crimes for which they have now been charged is President Trump.

Defendant Robert Bauer, quote, according to Defendant Bauer, after President Trump told the crowd we`re going down Pennsylvania Avenue to the Capitol, the crowd began moving toward the Capitol. Bauer reiterated that he marched toward the Capitol because President Trump said to do so.

Defendant Christopher Ray Grider, Grider stated, quote: The president asked people to come and show their support. I feel like it`s the least we can do. It`s why I came from central Texas all the way to D.C.

Defendant Michael Curzio. Quote, Mr. Curzio concedes he was on the Capitol grounds and building to protest along with hundreds of other protesters and was merely following the directions of then-President Trump, who has billed himself as the country`s chief law enforcement officer. Has billed himself as the country`s chief law enforcement officer. Like it`s a brand.

All these people now facing prison time and federal prosecution all saying they did it because they were under the impression that President Trump was directing their actions, as commander-in-chief, as the chief law enforcement officer of the country, as the president. He told them to do it, and so they did it. That`s why they did it.

And these cases are now going to trial. And as these cases go to trial and some people get convicted of these crimes and get sentenced for these crimes, the issue of the president`s culpability for these crimes, the president`s culpability for directing his followers that day, is going to stay in the spotlight.

And at the center of discussion, the center of focus, the center of court proceedings for all the federal prosecutors who handle the cases and for the federal judges who handle these cases, and for all of the media that covers them, and all the people who are facing the charges and their families concerned about them, the president`s culpability is going to stay a live issue as long as his followers, who blame him for what they did, are all themselves being held accountable under federal law.

There`s also this Georgia criminal case against the president, Republicans now showing they are having a hard time coping with that in Georgia. There is this civil case brought by Congressman Bennie Thompson against the president today. Lots of Republicans called for something exactly like that to be brought against President Trump.

Those Republicans today seem unsure what to do or what to say about that civil case now that it`s actually happening. Will they support it? They said in theory they supported exactly such a thing.

But the issue of justice after Trump isn`t just the elements of the law that may be coming after Trump. It`s all these live sparking wires left behind by Trump -- and frankly, by William Barr and Jeffrey Rosen and his other appointees. The way that this president and this administration messed with justice, the way they messed with the rule of law, all these things that are not at all resolved as President Biden now takes over and installs his own appointees in the Justice Department and beyond.

I mean, beyond just President Trump himself being in trouble, it`s all the ways his administration weaponized the administration of justice for Trump`s purposes. All of that remains to be unwound, and all of those issues, almost all of them still remain live.

Take that issue I just mentioned, about the New York investigations of President Trump into his financial dealings, potential insurance fraud, potential bank fraud, potential tax fraud. That is -- that is one of the cases where President Trump got the U.S. Justice Department to act on his behalf, to wade into that case on his behalf. It wasn`t just one of the clown cars full of Trump personal lawyers arguing on his behalf, all these lawyers who never seem to get paid and fall by the wayside and get replaced.

It wasn`t just President Trump`s personal lawyers who he put to work on these cases. He got the U.S. Department of Justice to argue that Trump`s financial records and tax records were off limits to criminal and civil investigators indefinitely. What`s the Biden administration going to do with that little bit of rotting fish that Trump left in the fridge when he moved out?

I mean, they now have to decide, are they going to keep up the Trump era Justice Department argument that Donald Trump`s tax returns can`t be seen by investigators or by Congress? That subpoenas to his accounting firm or financial firms can`t be honored? Because that`s how they left it. That is how the Trump Justice Department, the Trump administration, left it. Now, the Biden era Justice Department has to contend with what they`re going do with the trailing ends of President Trump having used the Justice Department on his own behalf, essentially as his own defense firm, in a case like that.

And that`s just the start of it. You may remember in December, we were first to report here on the show that federal prosecutors in the Southern district of New York intended to seek a search warrant for electronic communications related to Rudy Giuliani and his business dealings. Part of an ongoing criminal investigation into Giuliani they wanted a search warrant.

In the past few days, CNN, "The New York Times," and "The Washington Post" have all matched that reporting and advanced it, finding that SDNY prosecutors as we reported, they had in fact wanted to get that search warrant for Mr. Giuliani this past summer. Trump appointees at the Justice Department blocked it. Prosecutors at SDNY reportedly tried again after the election.

They again told Main Justice after the election they wanted to execute this search warrant against Rudy Giuliani now that the election was over, could they pursue it. The answer was no. Trump appointees at the Justice Department still blocked it after the election, up to and including the deputy attorney general. Well, now, all those Trump folks are gone.

"The Washington Post" reporting that Giuliani`s under scrutiny for a whole bunch of potential federal crimes -- foreign lobbying registration violations, destruction or alteration of documents, aiding and abetting federal crimes, foreign contributions to U.S. candidates. Is that still live? Is there still an investigation into him potentially committing any of all of these crimes?

What does the Biden era Justice Department do with that now? Both with the very material issue of the fact that this investigative step they wanted to take against Rudy Giuliani has been delayed by, what, minimum half a year now, by delaying that, did the president using his appointees at the Justice Department effectively kibosh that case against his lawyer? Is it still possible to bring a case against Rudy Giuliani with all this delay, especially now with this publicity around the search warrants they would like to effectuate?

Did President Trump effectively kibosh a federal investigation and/or prosecution of his lawyer while his lawyer meanwhile was directing the pro- Trump mob that they should engage in trial by combat with Congress on January 6th? While they march up to the Capitol building?

I mean, it`s not a hypothetical question. The Biden era Justice Department has to figure out what to do with that case. And not only what to do with Giuliani and that investigation, but what to do with these very serious allegations concerning former Justice Department officials, that they were used by Trump in this way, that they improperly quashed an investigation into an ally of the president. Does the Justice Department now let that go?

You know, assume that it will be better now. With new leadership and a new White House that`s not likely to make the same corrupt demands of the U.S. Justice Department, what, the problem is solved? Or does that need to be redressed in some way?

If the senior leadership of the Justice Department was used to stop investigations of the president`s friends, at the investigative stage, that`s an improper use of the Justice Department, and senior officials at the Justice Department should have some accountability for that, in addition to the question of what to do with the case. And again, that`s just the start.

Tonight, we`re going to speak with Robby Kaplan, a lawyer who represents one of the private citizens of this country who was targeted by President Trump using the Justice Department, just one of the cases which the Biden era Justice Department has to decide what they`re going do about it. Robby Kaplan`s client is E. Jean Carroll, who the former president sicced the Justice Department on after she accused President Trump of rape and then of defaming and lying about her when he denied those charges.

And it is one thing for the president to deny those charges. But Trump`s use of the Justice Department against her is quite another thing. Trump`s use of the Justice Department for all sorts of personal defenses and personal vendettas something we have never seen before at this kind of a level, and it hasn`t gone away because Trump is out of office. All of these ongoing cases started by the Trump administration in many cases, apparently at the insistence of the president himself, for his own personal purposes, they`re all still out there.

This stuff is all just sitting there rotting, as the Biden team takes over and has to figure out what to do with all of this mess left behind. Siccing the Justice Department on E. Jean Carroll.

Siccing the Justice Department on Michael Cohen. You will recall a federal judge ruled the Trump Justice Department retaliated against Michael Cohen by returning him to prison improperly, specifically as punishment for Michael Cohen writing a book critical of the president. That wasn`t like some pundit saying that`s what it looks like. That was a judge`s ruling, that the Trump Justice Department retaliated against Cohen by wrongfully imprisoning him as retribution for him writing a book critical of the president.

Doesn`t the Biden era Justice Department have to clean that up now? The solution can`t be we promise to do that never again. We`re not like that.

I mean, Trump used the Justice Department to bring cases against Omarosa Manigault Newman when she wrote a book critical of the president. He used the Justice Department to bring charges against John Bolton when he wrote a book critical of the president. He used the Justice Department to bring a case against Stephanie Winston Wolkoff, they sicced the Justice Department on her, too, when she, too, wrote a book critical of the president.

The president and first lady didn`t just trash Ms. Wolkoff publicly and attack her from the White House. They got the Justice Department, the U.S. government, to bring a suit against her for supposedly violating a nondisclosure agreement. That one at least the Biden administration has acted on. They moved quietly last week to drop that case against Stephanie Wolkoff, and so that is one case where the president used the U.S. Justice Department to attack his critics, to intimidate his enemies, using the power of the U.S. government, the power of the criminal law, the power of the civil power of the Justice Department, to go against people like this.

That`s one case where they have undone it. They walked away. But the rest of these things are still live. All still rotting in the proverbial fridge as Biden`s team moves into the Justice Department and starts going, what`s that smell?

And you know, it is not just unwinding those things that the former president did to use the Justice Department as a personal cudgel. It`s also the larger problem of the Justice Department allowing itself to be used as that kind of a weapon. I mean, the D.C. U.S. attorney`s office having its prosecutions taken over by political appointees to achieve ends more amenable to the president`s interests when there were cases of interest to the president, like when they moved to get Mike Flynn and Roger Stone off the hook, line prosecutors resigning in protest in both of these cases, yes, but the office bent to President Trump`s political will.

How do we get back to being a country where we do not believe the D.C. U.S. attorney`s office is used as a cudgel to go against the president`s enemies and to help the president`s friends? It can`t just be that we stop doing it, but there`s no consequences for the fact we did it if four years under Donald Trump?

The Attorney General William Barr reportedly spent weeks, weeks, pressuring prosecutors in the Southern District of New York over the hush money prosecution involving the president`s campaign, right? The one for which Michael Cohen went to prison. This is a case in which the president was named as an unindicted coconspirator. He was called individual one.

His company was shown in the Michael Cohen prosecution to have laundered the hush money campaign payment to make it look like legal fees instead when it absolutely was not legal fees. After weeks of pressure from William Barr, that case was brought to a close with no one closer to the president than Michael Cohen ever facing any charges. That still stinks. I mean, that is still lurking. What is the Biden administration doing about that? While the statute of limitation rolls on in that case in particular.

Yes, in Georgia, there is now a state level criminal investigation into the president`s pressure on elections officials to falsify the election results in that state. But that effort to try to use the power of the presidency to overturn the election results in Georgia wasn`t just those calls to the secretary of state and the attorney general and the governor and the investigator and the secretary of state`s office.

That effort also included pressure from the White House and from senior Justice Department officials on a federal prosecutor in Georgia. One U.S. attorney in Georgia who was told that he himself needed to bring some sort of federal charges or take some other action as a federal prosecutor to promote the president`s false fraud claims in Georgia. He refused to do so. He was forced to resign. Is that the end of that?

What does the Biden administration now do with that? What does the Biden Justice Department do with that? Is the plan to hope that doesn`t happen again?

President Biden`s nominee to run the Justice Department, of course, is Merrick Garland, one of the only federal judges in the United States of America who is a household name because of his mistreatment at the hands of the Republican Senate, because of Mitch McConnell and Senate Republicans refusing to consider his rightful and properly nomination to the U.S. Supreme Court by President Obama because they wanted to hold the seat on the Supreme Court empty until a Republican president was in place to fill it.

Judge Merrick Garland is now Joe Biden`s nominee to be attorney general. He will undoubtedly be confirmed as the nation`s next attorney general. It`s kind of one of those things you wouldn`t wish on your best friend, though, right? You wouldn`t wish on your worst enemy.

Just think about it, what`s the -- what`s the tour like on day one? What`s the tour like of the smoking hulk of what used to be the U.S. Justice Department on day one for him?

Welcome, Mr. Attorney General. We`re so happy to have you. This over here, this is the office of the head of the criminal division at the Justice Department. That`s the guy who received a criminal referral related to President Trump`s call to Ukraine where he demanded that country needed to provide dirt on Joe Biden for using the election or else they wouldn`t get their military aid. That`s the head of the division, Brian Benczkowski, that`s where they quietly buried that criminal referral of President Trump and said nothing about it and hoped it would go away.

That`s also the office where the head of the criminal division, Mr. Benczkowski, hosted meetings with himself and a bunch of lawyers from the fraud division, and Rudy Giuliani, while Rudy Giuliani was simultaneously under federal criminal investigation for alleged crimes related to fraud charges brought in federal court in New York against his associates, nevertheless, meeting with the head of the criminal division, and the lawyers from the fraud unit. Because why not? He`s just under federal investigation for fraud stuff.

Call that the Al Capone memorial tax conference shelter room now, Mr. Attorney General. Over here, Mr. Attorney General, that`s the office of your number two, the deputy attorney general.

Quite recently in that office, Jeffrey Rosen quashed the search warrant for Rudy Giuliani, the president`s lawyer. He also monkey wrenched the sentencing of Roger Stone for the president, and he brought that crazy ginned up case against John Bolton for writing a book critical of the president, and he also made some calls to make sure President Trump`s campaign chairman, Paul Manafort, would never have to go to Rikers Island like a normal prisoner when he was facing charges in New York. That`s the office of the deputy attorney general, that`s what we have been using that office for recently.

Also, I would like to show you the office of the head of the civil division at the Justice Department. That was the guy who Trump tried to get to take over the whole Justice Department after the election because the head of the civil division is the guy who said if Trump put him in as acting attorney general, he would call the state of Georgia and tell them to announce that their election results were null and void and Trump actually won. And President Trump said okay, yes, then I`ll put you in as the new acting attorney general of the United States. And it was only when all of the other top leadership at even that Justice Department said they would resign in protest that that plan was aborted at the last second.

That`s how they used the head of the civil division, the head of the criminal division, and the head -- the deputy attorney general`s office under Donald J. Trump. Those offices are still there. But like the same desks and the same chairs.

So, settle in, Mr. Attorney General. This is the esteemed temple of the rule of law left for you to run. Don`t mind the smell.

"Justice after Trump" is in large part going to be a story of trying to clean up the wreckage of what the former president did to the U.S. Department of Justice and to the very idea of the impartial rule of law, the idea that the law shouldn`t be used as a cudgel to hit the president`s critics and help the president`s friends.

After the 2016 election, I remember speaking with senior officials in the outgoing Obama administration. About what they feared was the worst case scenario in the incoming presidency of Donald J. Trump, given the way he had run for office, the whole lock her up thing and all that. Given the concerns even at that early time about what potentially had been going on with Russia trying to help get him elected and why they would want that, his weird reaction to Russia`s behavior.

What was the worst case scenario they had about him assuming the presidency? Assuming the powers of the presidency, and what I was told by outgoing officials that Obama administration is you didn`t need to worry as much about arcane, ornate, you know, spy movie kind of risks that we regular folks might not understand because it was all classified stuff and intelligence related and hard to get to. The main thing you need today worry about, the most dangerous thing a president could do, would be to pervert and corrupt and weaponize the Department of Justice. Because the perversion of the rule of law, and the use of the law to hurt the president`s enemies and to help the president`s friends is the most dangerous thing you can do with the U.S. presidency. And that is what we have just lived through.

And the Biden administration is inheriting live tendrils of that animal that Trump left behind.

And yet the way the Trump presidency ended must be the way that justice after Trump begins. Because of the way his presidency came to its fiery and violent end, "Justice After Trump" is going to have to start with this question. It`s going to have to call this question of whether the president himself is brought to justice for his role in the attack on the U.S. government that he waged to try to stay in power.

Joining us now is Congressman Bennie Thompson of Mississippi. He is the chairman of the Homeland Security Committee. Today, Chairman Thompson filed a lawsuit against former President Trump, his one-time attorney, Rudy Giuliani, the Proud Boys, and the Oath Keepers, two of the extremist groups whose members have been arrested and charged in taking part in the attack on the Capitol.

This lawsuit alleges in their attempt to block the electoral vote count, Trump and these others violated the Ku Klux Klan Act of 1871. It`s a Reconstruction Era law that`s designed in part to give federal officials like Chairman Thompson recourse in the civil courts against people who conspire to use violence and threat and intimidation to keep them from fulfilling their lawful duties.

Chairman Thompson, it`s a real honor to have this time with you tonight. Thank you so much for being here.

REP. BENNIE THOMPSON (D-MS): Thank you for having me, Rachel.

MADDOW: First of all, let me just ask if I have misconstrued anything about your case or gotten any of this the wrong way around. I tried to contextualize it around other issues about justice at the turn of this presidency, but talking about your civil lawsuit, have I screwed anything up?

THOMPSON: Oh, no. You laid it out perfectly. It`s clear to me and to a lot of people that this Trump administration is just acted willy-nilly about justice, and in their mind, they think they can do anything.

This violent insurrection at the Capitol was orchestrated by former President Trump and his lawyer, along with the Oath Keepers and the Proud Boys. And we`re going to have our day in court. This insurrection was an embarrassment to the whole country. Clearly, this president in his speaking, in his orchestrating after the election, step by step, every tweet, every Facebook posting, even when he said come to Washington on January 6th.

Now, what would be significant about coming to Washington on January 6th, Rachel, other than the fact that members of the House and Senate would be performing their constitutional duties in certifying the election of last November. So you invite them, and you say, oh, by the way, it`s going to be wild.

So, we believe that Donald Trump, Rudy Giuliani, and those two other groups conspired to deny members of Congress their right guaranteed under the Constitution to certify the election. They impeded it. We were potentially at risk of being hurt. You have seen all the pictures of all of us wearing gas masks and being escorted eventually out of the Capitol, out of harm`s way.

But more importantly, this was the United States Capitol. And I just believe that the greatness of this country would reject this kind of approach by anyone. And so that`s why we have to go forward with the court. We settle our differences for the most part in America at the ballot box. Donald Trump and his followers, for whatever reason, did not accept it. They went to court. They did everything you can imagine.

Over 60 cases they lost. But they still wouldn`t give up. And so as a last- ditch effort, he turned that mob loose on his vice president, on the leadership of the House and members of the Senate, as well as members of Congress that should not be.

We are not a third-world dictatorship like he wants it to be. We`re the United States of America. We are a nation of laws. And when you break the law in this country, there is a jurisprudent system that we go through for accountability. And that`s why I`m taking those individuals to court.

MADDOW: This law in particular that you brought this case under is famous because it has been used to essentially bankrupt extremist groups in the past. There is a provision in your lawsuit for damages. You don`t say how many -- how much money you`re looking for in terms of punitive and other damages in this case. But I`m thinking not so much about Mr. Giuliani and Mr. Trump personally, but those other groups that are named, the extremist groups, the Proud Boys and Oath Keepers named in your lawsuit, is part of the intention here that they should have to pay with their assets, with any funds they have access to for what they did?

THOMPSON: Absolutely. You know, clearly, this act was put together in 1871. Preferably to make sure that the southern contingent in this country could not form any other acts against this government, and so it said that if any organization or individual interfered with Congress performing its constitutional duties, it`s illegal.

And so we take that to our premise in this lawsuit, and Rachel, I feel good about it. I have looked at it. I have talked to a number of scholars. They feel very good about it. But obviously, just like any other lawsuit, you`ll have to win it on the merits.

I`m convinced when we present the merits to a jury in the District of Columbia, we will have a better than fair chance of getting justice.

MADDOW: Chairman Bennie Thompson, Democrat of Mississippi, the chairman of the Homeland Security Committee -- sir, thank you so much for helping us understand this. I also will tell you that I know that your constituents right now are struggling right now with the weather and with this incredible cold snap that we`ve got, which is temperatures in Mississippi never see. I wish the best to you and all of your constituents, and thank you for your time.

THOMPSON: Thank you very much, Rachel.

MADDOW: All right, got much more of our special look ahead at "Justice After Trump". Stay with us.


MADDOW: October 23rd, 2019, was a Wednesday. The Nats beat the Astros in game two of the World Series. Google announced they had achieved something they call quantum supremacy. That was also right in the middle of Donald Trump`s first impeachment investigation. Those were the days.

But I will always remember that day in October 2019 as the day Trump`s lawyer in a real-life court of law said he believed his client could take a gun, step onto Fifth Avenue in New York City, shoot someone, and lawfully get away with it.

This is how "The New York Times" netted it up in their headline the next morning. Quote, if Trump shoots someone on Fifth Avenue, does he have immunity? His lawyer says yes.

That was not the straightest of legal lines, but Trump`s lawyer was deploying that argument to try to block investigators from looking at Trump`s tax returns. A state prosecutor in New York had subpoenaed Trump`s taxes. The president sued to try to block prosecutors from seeing the tax returns. His lawyer was there in court that day trying to argue that a sitting president was immune from criminal anything. Not just prosecution, but investigation, too. You name it, whether it be for tax crimes or even murder.

Perhaps to the relief of the poor lawyer put in the position of making that ridiculous case in court in front of a judge, he was not the only legal firepower assigned to defend President Trump in that case, to try to shield Trump`s tax records from investigators, because when that lawyer made that claim in court that day, the sitting president`s case had just gotten a big boost because the Justice Department, the U.S. Justice Department, had just decided to intervene on Trump`s behalf. They joined the legal battle to shield Trump`s taxes from investigators.

And that is not what the Justice Department is for. The Justice Department is supposed to enforce the law in the United States, make sure it`s applied evenly and fairly. It`s not the president`s personal law firm, the president is not supposed to tap Justice Department attorneys like his or her own legal task force.

But that`s what Trump did there. Deploying DOJ lawyers, paid for by the American taxpayer, to fight this personal legal battle in court. And it`s not by any stretch of the imagination the only time he did it. He routinely, habitually used the Justice Department like an in-house henchman to fight his personal legal battles and to menace his political enemies, and under Trump, the Justice Department went along with it.

You remember Omarosa? She worked for the White House in the early days of the Trump presidency. She then became a vocal critic of Trump.

She said Trump was in mental decline. She called him a racist and a bigot and a misogynist. She wrote a book about him called "Unhinged."

Soon after "Unhinged" was published, Trump`s Justice Department sued her. They claim she failed to file a financial disclosure form for some of her time in the White House, and they sued her for $50,000. Okay.

Same thing happened to John Bolton, Trump`s national security adviser. He wrote a book about Trump in which he detailed the president`s involvement in the Ukraine scandal for which he was impeached plus lots of other things. Under Trump, the Justice Department sued Bolton to try to stop the publication of the book.

Look what happened to Michael Cohen. Cohen was convicted for his role in the criminal hush money scheme involving President Trump and his campaign. At the time, Cohen wrote his tell-all book about former -- about his former boss, President Trump, Cohen was out of prison on home confinement, but shortly before the book was set to be published, Trump`s Justice Department and the Bureau of Prisons called Cohen back to prison, leading a federal judge to rule that Cohen had been sent back to prison as retaliation for him writing the book and to try to stop him from publishing it.

The Justice Department is not for this. The Justice Department does not exist so the president can add federal legal muscle behind his personal grievances, so he can use what amounts to the world`s biggest and most powerful law firm as if it were his own personal counsel. But that`s what he did over and over again, and to great effect.

Stephanie Winston Wolkoff, who worked for First Lady Melania Trump, also worked on the scandal-ridden inaugural committee wrote a book about it. She, too, was sued by Trump`s Justice Department. Her story does end differently, that suit was brought in the waning days of the Trump administration. It was not resolved before President Trump left office. Last week, that lawsuit against her was dropped by the Justice Department, now that the DOJ no longer answers to Trump.

And this raises an important point. The Biden administration is the new custodian of DOJ. They now have the difficult, important task of cleaning up the mess left behind there and making sure that the Department of Justice can never again be used as some president`s personal legal cudgel.

But they also have to figure out what to do with these still sparking live wires. Like this one. E. Jean Carroll, storied American journalist. She wrote a column for "Elle" magazine for more than 25 years. In 2019, she accused Trump of rape. She said it happened in the mid-`90s. She said Trump shoved her against a wall, pulled down her stockings, forced himself on her against her will.

Trump denied the allegations, said she was lying. Said he could not be guilty of raping E. Jean Carroll because he said she was, quote, not my type. He says he had never even met her.

That was immediately contradicted by at least one picture of Carroll and Donald Trump together.

So, E. Jean Carroll sued Donald Trump for defamation, for calling her a liar. That defamation suit sort of plodded along in the courts for the better part of a year until something really remarkable happened. In September of last year, Donald Trump took the U.S. Department of Justice, the legal laser beam he had used against all his other critics and legal foes and rivals and pointed it right at E. Jean Carroll.

Last September. The U.S. Justice Department intervened in the E. Jean Carroll case on behalf of President Trump. DOJ said the federal government would be in charge of the president`s defense in this case from here on out. They moved to quash the case entirely.

It`s just stunning, right? One thing to have the Justice Department go after your fired national security adviser because he described the bad things you did as president. It`s another thing entirely to have the U.S. Justice Department called in to defend a sitting president for accusing and insulting and debasing a woman who has accused him of rape decades before he ran for public office, trying to wipe the case off the docket.

Now, here`s where it really gets interesting. Justice Department can`t just decide purely on its own authority to get involved in a case like this. They`ll need permission from a federal judge in a case like this.

The federal judge in this case said no. They said the Justice Department had no business intervening on President Trump`s behalf in this case. The Trump Justice Department appealed that. That appeal is still ongoing and the judge has not ruled in the appeal, which means now the U.S. Justice Department`s push to intervene in this case is still a live issue, except now this case belongs to the Biden era Justice Department. What are they going to do with it?

Joining us now, I`m very pleased to say, is Roberta Kaplan. She is the legendary litigator who represented Edy Windsor in the Supreme Court case U.S. v. Windsor. Her victory in the case helped pave the way for legalizing gay marriage.

Now she`s taking on Donald Trump in three different suits, including E. Jean Carroll`s defamation case against the former president, as well as Mary Trump`s suit accusing her uncle of fraud.

Robbie, it`s really nice of you to be here tonight. Thank you so much.


MADDOW: As you know, I am not a lawyer, and I am bad at playing one on television. I imagine that I did not get every aspect of this right, but would you correct me if I got anything important the wrong way around?

KAPLAN: It was close, pretty close, let me put it that way. You got it pretty much right, Rachel.

MADDOW: Okay. What do you expect to happen here? And is it fair to say that it was a shocking development when the U.S. Department of Justice decided to intervene in this case against your client in the first instance? Do you expect the Justice Department to reverse that?

KAPLAN: Yes. So in terms of was it a surprise, I have been around the block a bit. I have been practicing law a long time and I teach advanced civil procedure, so I have seen a lot of tricks. I don`t think I have ever been as surprised by when in October the Department of Justice decide today intervene in the case and say that our defamation case or E. Jean`s defamation case against Donald Trump was really a case against the United States of America.

It turns out we now know that decision was made at least in part by Jeffrey Clark, the acting head of the civil division. We spoke about earlier. And the ultimate goal of that case, of that move by the Department of Justice, was to get rid of the case altogether. Because a president cannot be sued for defamation, and if it`s case against the president and his official capacity as president, then the case dies.

So now, we are in a different stage. As you noted, we lost -- the Department of Justice -- we won, the Department of Justice lost that before Judge Kaplan and we`re on appeal. Probably for the first time in any of the cases I have ever heard of involving Donald Trump, they filed their brief before the second circuit a week early, way early, a week before inauguration. Not a surprise, so they would get their Trump Justice Department`s position on appealing that.

And now you`re exactly right, Rachel. It will be up to this Justice Department to decide what to do about that appeal, whether to stick with that position or whether to withdraw the brief. They have a lot of work ahead of them, as you have been talking about this entire hour, but we`re confident they will take a very hard look at it, and I would be surprised if the Justice Department now would say what the statements that Donald Trump made against E. Jean Carroll that she wasn`t his type, that he had never met her before, that she made up a lie just for money, that they will say, I would be shocked that they would agree that those statements were made by a president acting as part of the scope of employment as president of the United States of America, which is the position Trump is taking.

MADDOW: If the Justice Department does change its position on this, and President Trump is left President Trump is left pursuing this case on his own without the help of the U.S. Justice Department, where do you think -- what do you see as the path ahead? Where do you think it ends up?

Obviously, the direct facts of this case are compelling and disturbing enough, but in some cases, in some ways E. Jean`s case, Ms. Carroll`s case has taken on a larger life because of her willingness to pursue this to the end. So many women have made sexual assault, sexual harassment claims against President Trump and he`s basically skated on all of them. Her willingness to pursue this doggedly with you as her advocate to the very end has given this a sort of public face and I think a moral import larger than just the immediate facts on which this will be litigated.

KAPLAN: So this case on its facts is not very complicated. There are essentially two witnesses, Donald Trump and E. Jean Carroll. There are a couple of friends of E. Jean`s who she told at the time. Those are the witnesses in the case.

The discovery won`t take long. As soon as we get past this appeal, which I`m confident we will, we will be back in the trial court. We will be able to complete discovery very quickly and the jurors of New York City will have to decide who is telling the truth, Donald Trump or E. Jean Carroll. And I will take the odds on E. Jean Carroll any day in that contest. And I`m confident we`ll win the case.

MADDOW: Robbie Kaplan, litigator who is helming this case on behalf of her client, E. Jean Carroll, which has taken such a strange turn with the former president being able to enlist the Justice Department on his side of it, that decision now with the Biden-era Justice Department -- Robbie, it`s really a real honor to have you here tonight. It`s good to see you.

KAPLAN: Good to see you. Thank you.

MADDOW: More ahead tonight. Stay with us.



JEN PSAKI, WHITE HOUSE PRESS SECRETARY: It`s, of course, Congress`s decision to form this commission, as we`ve talked about a bit in here. But it`s certainly one the president would support. He backs efforts to shed additional light on the facts to ensure something like that never happens again.


MADDOW: White House Press Secretary Jen Psaki confirming that the Biden administration supports an independent 9/11 style commission to investigate the attack on the Capitol January 6th.

Back in November, Yale history professor Timothy Snyder, the author of "On Tyranny", predicted that President Trump`s lie that the election was stolen would become the kind of big lie that authoritarians have used to radicalize populations over history. It would lead to not just threats but to literal violence. Of course, he was right.

He also wrote something in the aftermath of the January 6th attack that also rings true and has been bugging me ever since. He said, quote: The claim that Trump was denied a win by fraud is a big lie not just because it mauls logic, misdescribes the present and demands belief in a conspiracy. It`s a big lie fundamentally because it reverses the moral field of American politics and the basic structure of American history.

The lie outlasts the liar. The idea that Germany lost the First World War in 1918 because of a Jewish stab in the back was 15 years old when Hitler came to power. How will Trump`s myth of victimhood function in American life 15 years from now, and to whose benefit?

Joining us is Timothy Snyder, professor of history at Yale University, the bestselling author of "On Tyranny: Twenty Lessons from the 20th Century".

Professor Snyder, thank you so much for staying up so late to join us. I really appreciate having you here.

TIMOTHY SNYDER, AUTHOR, "ON TYRANNY": Of course. Very glad to.

MADDOW: Is it important that we have a 9/11-style commission to definitively lay down in black and white the facts of what happened around January 6th and the 2020 election?

SNYDER: It`s incredibly important, I think, for at least a couple of reasons.

Number one, we should know now much more about just why law enforcement performed so badly. We need to know as much as we can about the connections between the actions people we know committed awful crimes and the people who are responsible for protecting the law in the United States.

Maybe more important is history. These kinds of things, attempted coups, attempted putsches, violent attempts to end democracy happen in history unfortunately all the time. What`s rare is trying to come to terms with them. In order to come to terms with them, you have to have some kind of commission which goes beyond the headlines and sets down something for the record, something that judges and citizens can look to in the future to prevent things like this.

There`s a reason why you have to have truth before reconciliation. Without truth, you can`t really have a conversation about reconciliation.

MADDOW: How much does that coming to terms that you`re describing have to map onto personal accountability for the leader who incited and caused this and in whose name it was committed? I think a lot of people sort of despaired at the lack of conviction in the Senate even it seemed as sort of preordained faith, because of the sense of without personal accountability for the president, something we`ve been talking about the whole hour tonight, that maybe that reconciliation can never come.

SNYDER: I think that`s absolutely right. I mean, a major theme of your whole program is the rule of law and the rule of law only makes sense if every person in the executive branch, any branch of government is treated equally to all others, at least in principle. That means we can`t have this kind of clan system where we decide that someone is immune from the rule of law just because he is or was the ruler.

In this particular case, I think it`s especially important because we depend on this distinction between law and the lack of law. And this particular man has spent his entire career in politics trying to blur and indeed to overcome that distinction, to push law out of our system. So if you want to have a future as a democracy, this is really an opportunity that we can`t miss.

MADDOW: Is there a concern with the incoming administration that if they decide that federal charges, for example, are warranted against the outgoing president, the former president for what happened on January 6th, that it will be seen as retributive rather than righteous justice?

SNYDER: This is one reason why there should be a commission. That commission should have all kinds of expertise, they should forensic experts, they should political scientists who work on race, they should have historians who work on the history of coups.

The document that`s produced, you know, this blue ribbon document that`s produced, should be the kind of thing that anybody who reads it will think, aha, this is not political, this is about history, this is about -- this is about the law, this is forensics. This provides the basis for a conversation and maybe a basis for a prosecution.

This is precisely the reason why investigation, why a basic field of facts we can share is so this is precisely the reason why investigation, why a basic field of facts we can share is so crucial going forward.

MADDOW: Timothy Snyder, the author of "On Tyranny", professor of history at Yale University -- Professor Snyder, thank you so much for your time. I`m really, really glad you`re able to make it.

SYNDER: My pleasure. Thank you.

MADDOW: All right. That is going to do it for us tonight. Thanks for being with us for this special report on "Justice After Trump". I have a feeling this will be the first of several. I`ll see you again tomorrow night.


Good evening, Lawrence.