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Transcript: The Rachel Maddow Show, 5/4/21

Guests: Ron Kirk, Kara Swisher


A group of major businesses comes out against Texas voter suppression bill. Facebook faces choice over reinstating former President Trump’s account amid pushback from conservatives.


CHRIS HAYES, MSNBC HOST, "ALL IN": That is "ALL IN" on this Tuesday night.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

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

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

This ought to be interesting. Department of justice is under very, very new management, as you probably noticed.

Today the new attorney general under president Biden, former federal Judge Merrick Garland appeared at his first congressional oversight hearing since being sworn in as the nation's attorney general. And he made pretty big headlines with his testimony, letting Congress know that the Justice Department under Attorney General Merrick Garland will be seeking considerably more funding to up its capacity specifically on civil rights enforcement and on fighting domestic violent extremism.

For the department's key role in enforcing the Violence Against Women Act, he's asking for a landmark $1 billion for the Office of Violence Against Women.

Republicans appeared to be horrified by his testimony, by the idea that the Justice Department will try to fully fund its work on civil rights and violence against women and domestic terrorism and extremism, which of course the FBI says is predominantly a white supremacist threat.

The Republicans hearing Merrick Garland's testimony today were really not into it as you might imagine.

But, you know, like I said, under new management. Elections have consequences. And under Attorney General Merrick Garland, the Justice Department has started up federal investigations into multiple local police departments around the country on their use of force. The Justice Department has indicted a local Georgia sheriff for brutalizing prisoners in his care. The department has opened a federal civil rights investigation in a North Carolina police shooting case. It will do so in the George Floyd killing case as well.

Today, "The Daily Beast" was first to report that the Justice Department under Merrick Garland is going to bring lawsuits against this rash of new laws in Republican controlled states that single out transgender Americans for new, overt discrimination, if in fact, the federal Justice Department joins that fight on behalf of transgender Americans and their civil rights, that's going to put that discriminatory crusade by Republicans around the country on a whole new level in terms of the kind of fight they're going to get.

So, new president, new attorney general, a Justice Department very much and very obviously under new management.

But now, as of today, now here's a brand new decision this under new Justice Department is going to have to make. I honestly have no idea what they're going to do about it.

One of the burn marks left by the Mueller investigation, one of the reasons that Trump Attorney General William Barr may not have been able to find himself gainful employment of any kind since leaving the Trump administration, is because as attorney general in the Trump era Justice Department, William Barr was found by a federal court to have lied to the country about the Mueller investigation.

In a federal court decision that will follow Bill Barr around for the rest of his life like toilet paper stuck to his shoe, a federal judge in Washington, D.C. found last year that when Robert Mueller turned in his report on the Russia investigation to the Justice Department, Attorney General William Barr lied to the public about what was in it.

The judge's ruling said, quote, Attorney General Barr failed to provide a thorough representation of the findings set forth in the report, causing this court to question whether Attorney General Barr's intent was to create a one sided narrative about the Mueller report, a narrative that is clearly, in some respects, substantially at odds with the actual report.

That was last year. A federal court finding that Trump's Attorney General William Barr told the public a porky pie, told the public an untrue story about what was in the Mueller report.

Well, now, today a second federal judge has just ruled that Bill Barr and the Trump era Justice Department were also disingenuous with the court. They in effect lied to the court when they told her and they told the public a made up story, a lie, about why former President Donald Trump was not put on trial, was not charged with obstruction of justice on the basis of the evidence that was collected against President Trump in Mueller's investigation.

You might remember Mueller's report started with volume one, that was about what Russia did to interfere in the election, and then volume two, you probably remember, it laid out more than ten instances in great detail of potentially criminal obstruction of justice committed by then President Trump.

Now, when Mueller finished this report, you might remember that Trump's attorney general bill Barr told the public that he, William Barr, had consulted with Justice Department attorneys, and decided on their advice that despite these 10-plus detailed instances of alleged criminal obstruction of justice by President Trump laid out Mueller report, Bill Barr consulting with Justice Department attorneys had determined that despite all of that nothing Trump did was really a crime. And so, Trump shouldn't be prosecuted.

Remember, Barr said that they didn't rely on this prohibition on a president being prosecuted while he's sitting in office. He said, actually, we decided at the Justice Department, I decided in consultation with Justice Department attorneys that none of those things described constitute a crime, that's why Trump won't be charged. That's the story they told the public.

That apparently is not what happened. Federal Judge Amy Berman Jackson ruling today that this supposed advice that William Barr got from the Justice Department that supposedly led him to conclude that these weren't crimes and therefore Trump shouldn't be criminally charged, she ruled today that that advice to William Barr has to be released to the public.

The Justice Department under William Barr withheld that. People filed FOIA requests for it. An oversight group called CREW had filed a FOIA lawsuit, seeking that document. The Justice Department had demurred, had said, no, we're not going to release that document, that's real legal advice, and we don't release those things to the public.

The judge ruled that that document wasn't real legal advice. She said, it wasn't anything. The Trump era Justice Department said that that document was. She says they have been disingenuous about this part of the process, too.

She says, in fact, William Barr decided from the outset that President Trump wouldn't be charged with any crimes, and what he had the justice cook up for him was an after the fact rationalization of that decision that he had already made.

And if you do that, that's not some protected, privileged legal advice thing that can be shielded from the public, particularly if you lied to the court about it. Because, you know, if you're the U.S. Justice Department, if you're the attorney general of the United States and you lie to a federal judge and the judge finds out about it, particularly if this is the not the first time you've done it, the federal judge is going to be mad. And they're going to rule against you in frankly, kind of cinematic terms.

Listen to this, this is from the very, very top, the very start of Judge Jackson's ruling today. Quote. On Friday, March it 22nd, 2019, special counsel Robert Mueller delivered his report of the investigation into Russian interference in the 2016 presidential election to then attorney general of the United States William P. Barr.

But the attorney general did not share it with anyone else. Instead, before the weekend was over, he sent a letter to congressional leaders purporting to summarize the principle conclusions set out in the report, compressing into less than four pages the approximately 200 highly detailed and painstakingly footnoted pages of volume one which discusses Russian interference in the election and the almost 200 equally detailed pages of volume two which concerns acts taken by President Trump in connection with the investigation.

The attorney general's four-page letter says the attorney general did not draw a conclusion, one way or the other, as to whether the examined conduct constituted obstruction of justice. It went on to announce Attorney General Barr's own opinion that it's not sufficient to establish that President Trump committed an obstruction of justice offense.

Judge Berman-Jackson continues quote, the president then declared himself to be fully exonerated. The attorney general's characterization of what he had time to skim, much less study closely prompted an immediate reaction as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball, even the customarily especially taciturn special counsel was moved to pen a extraordinary public rebuke, in which he said, in part, quote, the summary letter sent to Congress and released to the public late in the afternoon on March 24th did not fully capture the context, nature and substance of the special counsel office's work and conclusions.

There's now public confusion about critical results about our investigation. This threatens to undermine a central purpose for which the department appointed the special counsel, to assure full public confidence in the outcome of the investigations.

The judge continues: Mueller called for the immediate release of his report but it remained under wraps for another three weeks.

On April 18th, 2019, Attorney General Barr appeared before Congress to deliver the report. He asserted that he reached the conclusion he denounced about not prosecuting President Trump for obstruction of justice, quote, in consultation with the Office of Legal Counsel and other Justice Department lawyers.

The oversight group CREW, Citizens for Responsibility and Ethics in Washington, immediately fired off a Freedom of Information Act request for any records related to those consultations. The Justice Department demurred, meaning the Justice Department rejected that FOIA request to release the documents.

The judge continues, quote, What remains at issue today is a memo to the attorney general dated March 24th, 2019, that specifically addresses the subject matter of the letter transmitted to Congress. The question of whether then-President Trump would be criminally prosecuted for obstruction of justice.

What remains at issue today is that memo. The judge concludes quote, it is time for the public to see that too.

It was time for the public to see the Mueller report rather than Attorney General Barr's misrepresentations about what was in it. It is now time for the public to see that advice to him on whether the president would be prosecuted. That supposed advice to him on whether President Trump would be prosecuted.

This is Judge Amy Berman Jackson ordering the release of a Justice Department document we've never seen, which was the supposed justification for not bringing criminal obstruction of justice charges against President Trump. In her ruling today, she orders the release of that never before seen document. She also just ransacks the Trump era Justice Department, and Bill Barr's job running it, calling him personally disingenuous, saying the Justice Department took steps to, quote, obfuscate the true purpose of what they were doing.

She says the Justice Department, quote, strongly resisted, allowing her -- even her, the judge, to see the document they had been trying to keep secret but she did see it, and when she did see it, she finally understood why they had been trying to keep it under wraps.

She says, quote, the review of the document reveals that Attorney General Barr was not then engaged in making a decision about whether the president should be charged with obstruction of justice, the fact that he would not be prosecuted was a given. She says, quote, there was no decision actually being made as to whether the then president would be prosecuted. So, surprise!

What we thought happened, happened. Robert Mueller and his team of prosecutors laid out over several hundred pages, detailed evidence of all the multiple times they believed President Trump committed crimes by obstructing justice while he was in office. When that report was completed, and submitted to the Justice Department, William Barr said instantly that Justice Department, William Barr said instantly that the Justice Department had carefully reviewed every little bit of that evidence and concluded that nothing the president did seemed like a crime. And that's why President Trump was never prosecuted for his actions.

Well, now, this federal judge has actually seen what happened behind the scenes. It turns out, their public representations about what was going on inside the Justice Department while considering this evidence were lies. It turns out they never considered Trump's allege crimes. They just decided, in her words as a given, from the outset, that Trump wouldn't be charged with anything, no matter what.

And then they created a pseudo-illegal paper trail to cover their tracks on that after the fact. And then, according to the judge, they lied to a federal judge about what they had done. Now she has caught them.

She has their inter office emails, describing the production of this document that purported lee justified the information. She has the chronology of when the decision was made, and when they produce the document that purportedly was the advice that led Barr to make that decision, which was back ass wards in terms of its chronology. And she's now ordering the Justice Department to release the paper trail that they concocted here in order to support this lie, that they expected would never be shown to the public.

But here's the thing, under new management, right, Merrick Garland is now the new attorney general, President Biden's appointed attorney general. And he now has the choice as to whether or not to appeal the judges ruling. He can appeal it if he wants to.

If you look at Judge Amy Berman Jackson's ruling today, I was having a little bit of deja vu. It's a little bit of like being back to the battle days. With all the sections of the judges rulings redacted. That is because those redacted parts of her ruling actually show what's in the ruling that she wanted the Justice Department to release.

She redacted those portions of her ruling, and she didn't just go and release the document herself today, because she is allowing a couple of weeks to allow for the possibility that the Justice Department, under new management, may appeal her ruling and keep this thing under wraps.

This is a heck of a thing, right? I mean, this is an administration that is in every way, looking forward and not back, right? Merrick Garland is the attorney general now. All new leadership with the Justice Department, all new priorities moving forward with a million things at once, and here's a judge saying, you know, your immediate predecessor in this job lied to me, lied to the court, and lied to the American public about something so freaking serious as why the former president was not charged with crimes.

Are you cool with the evidence of all that being released to the public? Because it's coming out in two weeks unless you want to appeal my ruling. What are you going to do?

No word yet from the new attorney general or the Justice Department as to whether they will accede to the judge's ruling and not appeal it or let this thing come out. But, wow.

Watch this space indeed. So, we’re watching that tonight.

Beyond that, there are lots of other news we are watching tonight as well.

Last night, we reported on what would seem to be good and clarifying, big political news for the Democrats. Republican leader in the Senate Mitch McConnell has now flat out in advance that there will be zero Republican votes for President Biden's two new big legislative pushes -- the infrastructure bill and the American Families Plan. He is just saying it flat out, there will be zero Republican votes.

I know that doesn't sound like good news for Democrats or for the administration and wanting to pass this bill, and on the force -- face of it, of course it's not. But, honestly, realistically, that clarity from the Republicans is a very helpful. I mean, having the Republicans in advance guarantee there will be zero votes from the side no matter what's in the bill, that frees Democrats up to stop worrying about what's the Democrats think. They have taken themselves out of the game. So, Democrats can stop wasting time trying to persuade Republicans to support it, since Republicans have said in advance they are not persuadable.

Okay, well we will stop dealing with you. Democrats can move on now. Given that they have that guaranteed from Republicans they can move on, knowing that they only need to negotiate now amongst themselves, which is no small thing. They still need to negotiate amongst themselves. The Democrats are a diverse group in the Senate.

But they know, with zero Republicans votes, they have to negotiate a bill for themselves. That can get all 50 Democratic votes in the Senate. Then they have got to pass it under the Senate rules that allow you to approve a bill with just 50 Democratic votes. So, it has to fit the Senate rules about what kind of legislation you can pass by those means. Very clarifying. There is no ambiguity here as to what's going to happen. Or what time should be wasted any further.

That was last night. I do believe that's a big deal and it deserves more attention than the beltway press. Democrats are basically cleared by Mitch McConnell to stop wasting time. Go ahead, move now I am passing infrastructure, passing the American Families Plan with just Democratic votes, go.

Now today, "The New York Times" is first to report that the Democratic Senate leader, Chuck Schumer, is planning to add a bunch of immigration reform stuff to the infrastructure bill, to try to pass a limited number of immigration reform proposals, as part of that next big piece of legislation the Democrats are going to move. And again, this is about realistic politics.

At a certain point, I think we do ourselves the favor by no longer going through the motions and talking about the Republican Party like they are part of the game, here. They are not. They have overtly taken themselves out of the process. And so, it’s not worth considering what they have to say about legislation that they are guaranteeing they won't participate in passing, no matter what's in it.

And that’s true on COVID relief. They promised there would be no votes, there were no votes. It was worth Democrats ignoring them. They have now said it will be the same thing on infrastructure. The same thing on the American families plan, and honestly, zero Republicans are going to vote for any Democratic proposals on immigration as well.

Democrats are only going to be able to pass substantial legislation, with their own votes. They are not going to get any Republican votes on anything. Not as long as Mitch McConnell walks this earth.

But that's kind of great for Democrats in terms of knowing how to proceed. There is no use in dithering over this stuff anymore. And for proponents of immigration reform, moving pieces of immigration reform into that next must pass, we'll pass, next order of business infrastructure bill, means finally that we might get some reform to our broken immigration system, for the first time in more than a generation.

If you can stop the dumb, pointless process of talking to Republicans about what they want, given that they won't vote for anything, you can actually make plans to move forward on something that can pass through the Senate, through the budget reconciliation process. Huge news if the Democrats can make it happen.

And the strategic shift on immigration announced today, or reported today in "The New York Times" suggests that Democrats have figured out how to do so, and now it is just a matter of watching them make it happen.

Now, meanwhile, on the Republican side, just because they are not participating in legislation, it doesn't mean that they are not doing anything. On the Republican side, Republicans in Congress remain mostly just obsessed with weird, culture war fights, and with demonstrating unflinching loyalty to the twice impeached, one term former president, who is allegedly criminal behavior while president may get a whole new level of expose, given today's court ruling, enjoy.

But, the beltway presses all head up today about the prospect that Republican Congresswoman Liz Cheney is about to be kicked out of her leadership role in the Republican Party in Congress over her ongoing criticism of the former president that may yet happen. It feels inevitable to me at this point, but, why anybody should be surprised that the Republican Party is siding with former President Trump rather than siding with their supposed principles, implies that everybody has been asleep for the last five years.

We are also going to talk tonight with Kara Swisher about the decision expected early tomorrow about whether the former president is going to get his Facebook account back, after he used it to try to mount an armed insurrection against the U.S. government. Former President Trump was banned for life by Twitter, after he incited the attack on the Capitol in January.

Facebook banned him at that time as well, but tomorrow they are going to say whether the ban will continue, or whether it was, you know, temporary. Whether it was just like a little violent insurrection time out. But now everything is cool, because that is kind of what Facebook is paid for.

If he does get back on to social media tomorrow morning, mark my words, what we will quickly find is that former President Trump is just as obsessed with now, as he was in January, with this fantasy that he still is the rightful president. That he was actually somehow reelected, but we can't see it. Joe Biden really isn't the rightful president, but at some point it will all be revealed, and Trump will be assured back into the White House.

I mean, that fantasy is -- does appear to be still, in the main preoccupation of the former president that same fantasy it is what is driving the on going, totally bananas recount of the Arizona presidential elections results, led by a QAnon promoter, using theories from a guy who writes a book about treasure hunting, to find mysterious folds in watermarks on all the Arizona ballots, that they believe will prove true their fantasy that Trump didn't really lose his the election.

That insane fantasies also what is animating the anti voting rights rollbacks in Republican controlled states around the country. We reported last night on how Florida Republican -- Republicans, are belatedly realizing that in their haste to pass voter right restrictions, in order to bolster Trump's claims about mysterious voter fraud in the election, they might have accidentally curtailed the exact means of voting in Florida, that is most popular among Florida Republican voters. Oops.

Republicans in Virginia are meeting to nominate their candidates for Virginia elections. They're meeting to make those nominations this weekend. Virginia Republicans are just now realizing that they are voter ID rules, which they passed and supported in order to bolster Trump's bananas claims about voter fraud, they are just now realizing themselves that the voter ID rules that they have been insisting on our too much of a pain for them selves to follow, for the nominating convention this weekend.

So, NBC News is first to report that Virginia Republicans are exempting themselves from their own voter ID anti-voting rights rules, that they have been promoting for the state. But they realize that even they can't live by those rules for their own election to nominate their own candidates for the ballot this year. Oops!

And now in Texas. Texas Republicans appeared to have stepped on a rake with their new draconian voting rights rollback, which is rocketing through the Texas legislator. Today, a huge group of major Texas businesses stepped to the fore to say they are against what Republicans are trying to do to rescind and radically rollback voting rights in the Lone Star State.

Texas Republicans may in theory, I guess, decide that they don't care about that, I guess. But have you seen who's on this list of big Texas companies that just came out to criticize them? I sort of think they are going to have to care. I think they might have scored this up. That story in detail is next.

Stay with us.


MADDOW: It worked once before. In 2017, Texas Republicans tried to pass what was called a bathroom bill targeting transgender Americans. The Republican-sponsored law would have had the state step in to mandate which bathrooms transgender Texans would be forced to use in public schools and government buildings.

The effort drew criticism from the LGBTQ community, from Democrats, from activists, even from some Republicans. But perhaps most importantly, it drew criticism from the business community. Big Fortune 500 companies spoke out about how that bill would hurt not just transgender people in Texas but it would also hurt the state.

Big corporations like IBM based in Austin, oil and gas companies like Shell and Chevron and Exxon in Houston. Southwest and American airlines, AT&T in Dallas, the "Dallas Morning News" reported that more than 720 businesses and their leaders spoke up both in letters and in person to make their position clear and that sustained pressure worked. The Texas legislature didn't pass that bathroom bill, not that year, at least.

Now, businesses in Texas are ramping up the pressure again, this time against two bills that are making their way through the state legislature that would dramatically roll back voting rights. A coalition of big businesses and business groups in Texas under the name Fair Elections Texas today released a letter, making clear where they stand on the voting rights roll back that Texas Republicans are pursuing.

Look at the signatories, it's got American Airlines, Hewlett-Packard, Microsoft, Patagonia, Salesforce, Etsy, Warby Parker, Unilever, big companies.

It says in part, quote: We believe the right to vote is sacred. When more people participate in the democratic process, we all prosper. We stand together in a nonpartisan coalition calling on all elected leaders in Texas to support reforms that make democracy more successful and to oppose any changes that restrict eligible voters’ access to ballot. We urge business and civic leaders to join us as we call upon lawmakers to uphold our ever elusive core democratic principle, equality.

In the addition to the big companies represented, the letter was also signed by the first name you see there on the list, Ron Kirk, who helped spearhead this effort to speak out against these restrictive voting bills.

Joining us now live is Ron Kirk. He’s the former mayor of Dallas, Texas, and he’s the former U.S. trade representative during the Obama administration.

Mr. Ambassador, thank you so much for making time to be here tonight. It's nice to see you.

RON KIRK, FORMER DALLAS MAYOR: Rachel, thank you so much for having me, and in your introduction, you basically exposed this effort for what it is. You know, in a state like Texas, when Republicans like Georgia won, every office they hold, every office, you would think they would be pretty satisfied with the process as it is, but this is not about elections. It is not about the integrity of the ballot box. This is simply to further the line that President Trump will not let go of that somehow the 2020 election was tainted (ph).

And the business community, the leaders that have signed on to this effort through our Fair Elections Texas are making a simple point and a recognition, one, giving people more access to our democracy, empowering more people to vote. It's not only the right thing to do, but it's also good for our economy.

So we're hopeful as more leaders recognize this and speak out, perhaps we can have the same effect and result as we did in protecting the rights of our transgender youth in the last session.

MADDOW: One of the things that "The New York Times" highlighted today in writing about this effort that you've been leading down in Texas is that this seems to mark a sort of shift in terms of the business community's willingness to stand on this issue.

Before this, we had seen American Airlines and Dell Computer that had spoken out about the restrictive voting proposals in Texas. We had also seen them get excoriated by Republican officials both in Texas and around the country that they shouldn't stand up, they shouldn't speak out on this issue.

It effectively feels like companies like American Airlines and Dell now have a bunch of back up by having all of these other firms stand up and say, yeah, we've got trouble with these bills too. It does feel like closing ranks and letting Republicans know they can't single out a company here or there to bully for their perspective on this issue.

Is that a fair analysis?

KIRK: I think that's a fair analysis but I also want to point out that this began with the broader coalition many of us were involved in and the effort last month to oppose the legislation in Georgia in which we engaged business leadership to speak out with us, but I will be honest, Rachel and tell you many of us, many particularly African-American business leaders went to many of the companies on whose board we sit, and we engaged and said if you meant it, when you spoke out after those horrific events on January the 6th in which we all witnessed something that we thought would be unfathomable, in which Americans largely fueled by a lie told by the former president attacked our own country and a threat to our democracy.

And you heard a number of business leaders from the Business Roundtable to the U.S. Chamber say that they would no longer support those individuals that refused to recognize the validity of that election, and engage in efforts to destroy our democracy. I don't think it's an overstatement to say this is just as much a threat, the effort we're seeing that you highlighted in Texas, in Georgia, in Florida, in states around the country to further attack our democracy by building in constitutional disadvantages against primarily poor and voters of color.

And that the business community should just -- should be just as unequivocal in speaking out against this as they did those effort that we witnessed in our nation's capital on January the 6th.

MADDOW: Recognizing the key and sort of unparalleled power of the business community to speak in a way that can be heard by the lawmakers who most need to hear it on this issue.

Ron Kirk, former mayor of Dallas, former U.S. trade representative, Mr. Ambassador, it is a real honor to have you with us here tonight. I know we had to scramble to get you here on short notice. I appreciate you taking the time, sir. Thanks.

KIRK: It's an honor to be with you, and thanks for highlighting this important issue.

MADDOW: Of course.

All right. We have a lot more to get to here tonight. Stay with us.


MADDOW: Just a month after the 2016 election, a bunch of executives at Facebook got together to make a very important decision. This is how "The Washington Post" described what went down. Again, this is a month after the 2016 election.

Quote: Facebook created Project P for propaganda in the hectic weeks after the 2016 presidential election and quickly found dozens of pages that has peddled false news reports ahead of Trump's surprise victory. Nearly all were based overseas, had financial motives and displays a clear rightward bent.

In a world of perfect neutrality, which Facebook espouses as its goal, the political tilt to the pages shouldn't have mattered but in a video conference between Facebook's D.C. office and Silicon Valley headquarters in December 2016, the company's most senior Republican voiced concerns that would become familiar to those within the company. He said, quote, we can't remove all of it because it will disproportionately affect conservatives.

One other Facebook staff member pushed for the entire list, the entire propaganda list to be taken down on the grounds that fueled the fake news that had roiled the election, the same Republican executive warned of the backlash from conservatives said, quote, they don't believe it to be fake news. And so many of those pages producing false disinformation, they stayed.

A year later, it happened again, the company was going to try to change its newsfeed algorithm to limit the amount of misinformation flowing out of that particular fire hose. But when they realized the new algorithm would hurt right wing publishers more than others because right wing outlets were pushing more misinformation than others, the companies once again pulled back. They kept pumping misinformation knowingly into people's newsfeeds because limiting it would mean limiting more right wing sites.

Hmm, funny how that works. Why is that?

Eventually, the company announced that politicians writ large would simply be exempt from Facebook's fact-checking and its community guidelines on banned speech, and yes, that rule applied to all politicians but it was obvious that at least in the United States, it was tailored to one politician in particular.

This decision by Facebook that the most important thing was that they not appear to be targeting Donald Trump and conservatives even though they were the ones spreading all the misinformation and conspiracy theories, that decision had enormous consequences. President Trump, of course, was free to use that platform to lie about, say, the coronavirus, and to promote dangerous fake COVID cures and lie about bogus election fraud claims and claim ultimately that the 2020 election was stolen. It took a freaking violent attack on the U.S. Capitol for Facebook to finally change its mind, to finally recalibrate its concerns.

After president Trump used Facebook and other social media to incite the January 6th attack, Facebook finally banned him from their site, saying it was too dangerous to allow him to continue to post there.

But although Twitter's ban on Trump after the insurrection was permanent, for life, Facebook's wasn't. Facebook executives basically punted on deciding whether Trump's Facebook account should ever be reinstated. That punted that decision to something called the Facebook oversight board, which is 20 renowned experts from around the world, funded by Facebook but operating independently, that's the group that's going to announce their decision on whether Trump will be allowed back on Facebook tomorrow morning at 9:00 a.m. Eastern.

And I’ll be honest, tech companies and how they make their decisions I feel like, what do I know. But for obvious reasons, this decision tomorrow morning is going to be a very big deal with big implications for tech and social media but also for politics and for democracy, and because, what do I know, I wanted to talk about it with somebody who really does understand this stuff and deeply.

Joining us now is Kara Swisher. She’s "New York Times" opinion contributing writer. She’s host of the podcast "Sway".

Ms. Swisher, it's nice to have you here tonight. Thanks for making time.


MADDOW: So, this isn't my wheel house at all. And I feel like I have come to learn over the past five years how the misuse of social media to undermine democracy plays out in real life, but I have yet to understand what the tech companies can do about it.

SWISHER: Well, they can follow their rules, and kick people off that violate their rules, which Donald Trump did numerous times, over and over and over again, and they let him do it. It's sort of like you don't want to -- you can't even compare it to anything. He was allowed to violate the rules without any repercussions until January 6th when he crossed what is a very bright red line which was to insight violence, and because many of these companies didn't want to become hand maidens of violence in this fashion, they moved him off the platforms very quickly.

In the case of Twitter, it was a permanent ban, because Jack Dorsey did what it took and made the difficult decision to take him off. It took a long time and a lot of violations.

In Facebook’s case, they did remove him, and punted. That's exactly what they did, they abrogated their responsibility, which the company has to control its platform, saying they just didn't know what to do, because they didn't want to be the arbiter of truth. Which begs the question, why build a platform that requires one?

And now, they have sent it over to this Facebook oversight board, which is going to make this decision, which many people think probably will return Donald Trump to Facebook. That's actually sort of the over and ender in Silicon Valley right now that he will be returning to the platform and Facebook will be compelled to do it and not have the responsibility of making the decision or not.

MADDOW: Is the oversight board making this decision about Trump based on an assessment of whether or not he has held to Facebook's rules, or are they making a decision on the basis of some sort of understanding of some greater good?

SWISHER: Well, they're trying to do a greater good thing. They couldn't make a decision based on how he's behaved on the platforms because he has violated the rules. He’s done all the time.

And honestly, it's not his fault. Why wouldn't he? Why wouldn’t he do this if it was good for him? Why wouldn't he try to increase fundraising? He uses Facebook a lot for fundraising. Why wouldn't he use Twitter to -- as megaphone, he’s got at it.

So, I -- honestly, I hate to say this, the tools are available to him, and they do nothing about it. And so, they give warnings, as you know, Twitter slapped warnings on it, which was, I don't mean to be rude, it's laughable, he continued to do it, and his base continued to re-tweet it.

And in the case of Twitter, they finally said that's enough, and other sites like Reddit did the same thing. The CEO told me, you know, there's a thing, you know, malignantly cooperative that a lot of these trolls are. And so, he decided that they weren't cooperative and tossed them off when they were violating the rules.

In Facebook's case, I think it should boil down to that. Here's someone who breaks the rules incessantly. He shouldn't be given a pass because he's the president or former president, especially when he moves into dangerous territory like this. But he had been flirting with it for a long, long time.

MADDOW: If they do decide to allow him back on to the platform tomorrow, do you think that means he's both back on the platform in the short-term but also essentially indemnified from being kicked off again for the kinds of things that he's been shown to do that they have decided to look away from by putting him back?

SWISHER: No. No, I think there's going to be strings attached. If they do allow him back on the platform, if he does things like the big lie, if he starts doing it again, which, of course, he's going to do it again. Why not? Why shouldn't he? He never has repercussions for what he does.

And again, that's precisely what you would want to do if you had influence, and you had a malignant idea of influence. So, if he does certain things from what I understand, he will, again, be subject to sanctions, but this is going to be like whack-a-mole with him.

Instead of just considering him like a lot of people who misbehave on the platforms, a bad actor and just kick him off. That's what they have done with lots of people, including conservatives, some liberals, all over the place, and they have done that before, and they just don't want to apply it to this particular man.

I see him as an outlier, and there's not going to be a lot of them. What I worry about is someone someday who's a little smarter he is, who doesn't make unforced errors the way he has so many times, which I think he can't help himself in a lot of ways.

MADDOW: Kara Swisher, "New York Times" opinion contributing writer, the host of the podcast "Sway" -- thank you for helping me understand this. As I said, this is not my wheel house. I’m aware of the sort of stakes here but not the nuance and you have helped with that a lot. Thanks a lot.

SWISHER: Thank you.

MADDOW: More ahead tonight. Stay with us.


MADDOW: Here is the thing you are going to want to see. Last night on our show, the top of the show, we brought you an interview that NBC’s Jacob Soboroff had done in California with a remarkable young man on a remarkable occasion. This is a young man who has been put through a particular kind of hell by the U.S. government under the previous president.

His name is Brian. He was 15 years old and was with his mother when he was forcibly separated from his mom by the Trump administration. She says they told her say goodbye, you will never see your son again. And then they took him. He was 15 years old.

Now, 3 1/2 years later, after the Biden administration set up a task force to reunite families that the Trump administration separated, Bryan is one of the first four kids to be reunited with his family. And when we met him last night through Jacob, Bryan said he knew he was likely to see his mom again sometime this week.

Well, we can now report that the reunion happened today. Just south of San Diego, California. Here are Bryan and his mother enjoying one of their first hugs after nearly four years apart, after the Bryan then spoke to some assembled reporters about what this moment means to him after all this time.


BRYAN CHAVEZ, REUNITED WITH MOTHER: There's no words to describe the happiness that I’m feeling right now, and I’m grateful with all the people that they did this amazing work to allow my mom to come back. I just hope that they can -- all the people that participate and make this possible, they keep doing this amazing work and help more people reunify with their families just like they did with my mom.


MADDOW: Perhaps even more eloquent than those words is the sight of this young man, now 18 years old, who can't stop hugging his mom, right? Playing with her hair. There's still more than a thousand kids that were separated from their families. More than a thousand families separated.

Lots of hard work ahead to get them back together. But the reunions have started, many more of these reunions to come.



JOE BIDEN, PRESIDENT OF THE UNITED STATES: All transgender Americans watching at home, especially young people, you’re so great. I want you to your president has your back.


MADDOW: The president has your back. That was President Biden at his State of the Union Address last week -- we're not supposed to call it the State of the Union, but it was the State of the Union -- pledging directly his support for transgender Americans.

Now, as I mentioned at the top of the show, "The Daily Beast" was first to report today that the U.S. Justice Department is expected to start fighting in court against what "The Beast" calls -- they called the rash of anti-LBGT and specifically anti-trans bills proliferating right now in state legislators.

The Justice Department, interestingly, confirming that in a statement saying, quote, saying the department will, quote, enforce our civil rights statutes to protect transgender individuals.

Again, that reporting today from "The Daily Beast". But as more than 120 different anti-trans laws continue to move in Republican controlled legislators around the country, watch this space indeed, for the federal government to enter the fight, which could be not just game changing, but could absolutely change both the profile, the tenor and the prospects for that new -- that new discriminatory crusade by the Republican Party in state legislators around the country.

All right. That's going to do it for us for tonight. I’ll see you again tomorrow.


Good evening, Lawrence.