The Biden DOJ continues to defend Trump in a rape defamation suit. Washington Congresswoman Pramila Jayapal, chair of the Congressional Progressive Caucus, is interviewed.
CHRIS HAYES, MSNBC HOST: All right. 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.
All right. He went to Morehouse. He got his law degree from Emory. He went on to a distinguished legal career in the state of the New Jersey that included him being county counsel, top lawyer in the country government for the most populist county in New Jersey. He became a judge in New Jersey, highly respected, distinguished, not a blemish anywhere on his record.
And at the beginning of 2015, February 2015, President Obama nominated him to the federal court. His name is Julien Xavier Neals.
And that judicial nomination for President Obama was like basically a gimme, right? Like I said, distinguished record, not a word against him. Sort of an ideal candidate for the job, utterly non-controversial. They held his confirmation hearing in the United States Senate in 2015, after President Obama nominated him and the confirmation hearing went great. He sailed through, no objections.
The Judiciary Committee is where they hold confirmation hearings in the Senate. They decided on Julien Neals` nomination by a voice vote. They didn`t even bother taking a roll call vote, they just it all in favor, aye, no objections, passed him through for his floor vote in the Senate and then he can become a federal judge.
That was in November 2015. Zero controversy about him. He passes out of committee with zero objections. That sets up what it is expected to be, what in under normal circumstances would be a totally non-controversial vote on him in the full Senate to confirm him to the court.
But that never happens. The committee has this hearing and passes him through on a voice vote with no objections, November 2015, but there`s no floor vote. And then December 2015 comes around, nothing happens. No floor vote. We roll into January 2016, nothing happening. No floor vote.
President Obama, of course, was at the White House but in the Senate that was controlled by Mitch McConnell and the Republicans. And what Mitch McConnell and the Republicans did when they control the Senate is just they refused to consider President Obama`s nominees to be judges. They just refused to allow votes on Obama nominees.
So the seats would just stay empty. Republicans in the Obama era decided that a Democratic president like, for example, President Barack Obama, he didn`t deserve to nominate federal judges to the bench. He wouldn`t get to do that because he`s a Democrat and Republican senators decided they wouldn`t confirm judges nominated by Democratic president.
They would only confirmed judges nominated by a Republican president and so for that reason and that recent alone, Julien Neals, this distinguished, noncontroversial lawyer and judge from New Jersey, he sails through the substantive part of his confirmation process. He gets confirmation from the judiciary committee on a voice vote, but then the Republicans just let him languished, they refused to vote to confirm him on the Senate floor. They refused to vote to confirm him or not.
They refused to hold any vote on him whatsoever for nearly 700 days. For the whole rest of the Obama presidency, they won`t vote on him. They hold his nomination until Trump gets elected and then they drop him.
When Trump was elected, Republicans having held open judicial seats that way in courts all over the country, once Trump got elected, they turned on a dime and the Republicans in the Senate raced to put Trump nominated judges on the courts, in such quantity and in such a pace that they nearly sprained something. I mean, they did nothing anywhere near as fast and effectively as they confirmed Trump-nominated judges. Trump got nearly as many appeals court judges onto the federal bench and his scandal-ridden four years in office as other presidents did who had two whole terms and eight whole years to do it. They absolutely stuffed the courts full of Trump judges.
Well, today 139 days into the Joe Biden presidency. 139 days. Four and a half months into Joe Biden being president and the Senate being controlled by the Democrats, today finally, Julien Neals got his confirmation vote on the floor of the Senate. President Obama nominated him for the job more than six years ago. Republicans raised no actual objections to his nomination but they nevertheless refused to hold a vote to confirm him.
President Biden, when he became president, he decided he would re-nominate Julien Neals and today, Julien Neals was confirmed in the United States Senate and will be a federal judge. Julien Xavier Neals of New Jersey is the first Biden-nominated judge to be confirmed since Biden has been president.
So what`s the take away their, right? Well, first it took them four and a half months to confirm the first Biden nominated judge. Four and a half months? Trump got more than 230 judges on to the court in four years and that`s because the Republican controlled Senate worked harder on that than anything else. It takes time and effort and prioritization of the calendar in the Senate to get judges confirmed, but during Trump`s time in office, they absolutely stuffed Trump judges into every corner and crevice of every federal court in the country.
Democrats are in control of the Senate, now they have a Democratic president but they took four and a half months to confirm Biden`s first judge.
That`s part of the story here. The pace here has got to be a little bit worrying for Democrats, right? They know they don`t have infinite time right? Republicans wouldn`t let Obama put judges on to the courts for a significant portion of his term, and then once Trump was elected, they stuffed the courts full of Trump judges. So if you have any hope of trying to rebalance the courts now, they really have to work triple time to get it done.
They waited four and a half months for the first Biden confirmation. Take freaking clock Democrats. That`s one takeaway here.
But the other part of the story here is, you know someone is finally done right by Judge Julien Neals. The Republican Senate left him dangling for almost two years and that could`ve been the end of it but the Biden folks remembered what he had been through. They knew he was a good nominee. They didn`t let the Republicans have the last word in terms of the way they treated him. Biden renominated him and they got him through.
So there. Late is better than never. They didn`t forget him. And that`s something.
And that, of course, that same kind of small-J justice was network of course when President Biden picked his attorney general, right? President Obama, as you know, nominated judge named Merrick Garland to be a Supreme Court justice after Antonin Scalia died while he was still in the bench. Merrick Garland is someone who had been confirmed overwhelmingly and with zero controversy to his previous judgeship. He was someone so centrist, so moderate, so unobjectionable that Republican senators had literally cited him by name as an example of the kind of nominee they would love to vote for the Supreme Court even if you are nominated by a Democratic president.
But when President Obama did nominate him, Republicans under Mitch McConnell refused to consider Merrick Garland`s nomination. They not only refused to vote on him, they refused even hold a confirmation hearing for him. They just pretended like president Obama hadn`t even nominated him.
Mitch McConnell and Republican senators held a seat on the United States Supreme Court open an empty for more than a year just so they could stop a Democratic president, President Obama, from nominating someone to the court. That`s how they created the first vacancy for Trump to fill in the Supreme Court. That`s why Judge Gorsuch says she doesn`t shave in front of a mirror. She looks herself every day saying that`s how you got your job, right? He just takes an electric razor, just goes over in the corner, I don`t want to look at myself.
But when Biden was elected, he remembered, right, what had happened to Merrick Garland. He didn`t want that sort of shameful, unprincipled treatment of Merrick Garland to be the last word in Merrick Garland`s career. And President Biden nominated Merrick Garland to be attorney general of the United States which was a great honor and a huge responsibility.
And wouldn`t you know, Merrick Garland was confirmed to be attorney general fairly easily. It turns Republicans really didn`t have any substantive objections to him at all. And so, there is the same sort of justice to that as seeing Judge Julien Neals being confirmed today, right?
Not forgetting. Not letting that shameful treatment of that nominee by the Republicans in the Senate in the past, not letting that be the last word on either of their careers. That has a certain symbolism, a certain satisfaction to it, a certain small J justice.
But now in practical terms, the results of that is that the attorney general of the United States is Merrick Garland. He`s running the Justice Department under Joe Biden.
And aside from that sort of poetry about how he got the job, how does the Justice Department going under Merrick Garland? I will tell you, it`s the job I think I would least like to have in the whole federal government right now. If you give me my pick of jobs in the Biden administration, my first choice would be that I don`t want the job. My last choice would be I want to be the attorney general coming in to clean up the Justice Department after what just happened there in the previous president.
I mean, being attorney general after Trump, that`s a job for which you need a hazmat suit several days of the week every time you come to work in terms of the proverbial smoking toxic wreckage of the Justice Department left behind by the previous president and the previous attorney general, William Barr. I mean, not even in the worst of Watergate did we see such a blatant record of the U.S. Justice Department upending independent law enforcement to instead two favorites for the president`s friends.
The Trump`s appointees and his attorney general literally intervened at the sentencing phase of cases against Trump`s friends to get them off the hook after they had been convicted or pled guilty. They waltzed in at the sentencing phase to say, no, no, no, we got to clean this up, these guys can`t actually get in trouble. They`re the president`s friends.
I mean, if you`re Merrick Garland taking over the Justice Department after they just spent all that time doing that, how do you clean that up? You can`t just let it slide that the Justice Department was used that way. You can`t just let it go or it becomes precedent, that the Justice Department can be used that way. That future Justice Department will do that sort of thing again for criminal friends of some other corrupt future president. You can`t just let that slide if the Justice Department has been used for corrupt purposes to help the president`s friends. You can`t leave that standing as a precedent. That has to be addressed. That has to be re- dressed.
But that`s just the start of it. Two federal judges already have ruled that the Justice Department under Donald Trump, and Trump`s attorney general, William Barr, lied to the public and to the court about President Trump`s own potential criminal culpability in office. Just last month, a federal judge ruled that Justice Department lawyers under Trump and Justice Department officials under Trump have lied to the court about the consideration of federal criminal charges against Trump while he was in office. That judge ordered the Justice Department to release a memo that he tried to keep secret in the Trump years about potential criminal charges against President Trump.
How did Merrick Garland choose to deal with that misbehavior by the Trump Justice Department? By officials and lawyers in the Justice Department under Trump? How did he decide to deal with it? He decided he would fight the judge`s order and would try to keep that memo about potential charges against Trump. He tried to keep that secret, too, just like William Barr did during the Trump years.
Even more recently than that, just in the past week, we`ve learned disturbing details about Justice Department officials during the Trump administration entertaining demand from the Trump White House that they should start investigations into Trump`s weird pet causes, including some of the cookie is, most bananas conspiracy theories about the 2020 election somehow being stolen from Trump. "The New York Times" reporting that Trump`s White House chief of staff, Mark Meadows, told the attorney general while Trump was still in office, that after the election, that there was a theory he heard about on YouTube involving Italy and satellites and a supposed devious plot by a rogue Italian general to change U.S. votes from Italy using the satellite machines.
This was a theory that made absolutely no sense. It appears to have originated with a bizarre pro-Trump group in Florida that I kid you not has the website address, Italydidit.com. That`s their web address. Italy did it.
Italy? You sure? That`s who hacked the election to put Biden in their? You sure? Really? Yes, they`re very sure.
They`ve explained it all over in a small slice of QAnon promoting Internet radio shows, which is, you know, it`s sort of fine at this point. It`s one of these bunkers Trump election fitting fiction chain emails that makes no sense but persists on the very, very fringy pro Trump right.
Okay, we`ve seen a lot of those, except in December, the White House chief of staff directed the attorney general of the United States that he needed to have the FBI, the actual FBI meet with the YouTubers who were promoting this particular deep fried kettle of Trump election fraud fantasy fruit loops about Italy in the satellites. It literally made no sense but the White House chief of staff told the attorney general you need to have the FBI meet with the YouTubers about this and investigated formally as the former U.S. Justice Department.
Now that kind of communication from the White House to the Justice Department is a very stark, very obvious violation of long-standing Justice Department policy. For Justice Department officials to me even having that kind of conversation with the White House chief of staff at all, let alone entertaining multiple requests for him to open these investigations, that is a serious violation of seriously important Justice Department policies.
Now, it is being investigated in the Senate. The Judiciary Committee under Senator Dick Durbin is reportedly investigating what went wrong there inside the Trump Justice Department that they were involved in this kind of stuff and fielding these requests which they never should have been fielding.
But under Merrick Garland and the Justice Department itself, apparently they`re not investigating this. Apparently, they`re just letting that slide, not looking into it. I guess just planning to do better and not make those same mistakes again. Hope that the Trump era behavior that happened inside the Justice Department, what, just hope that it gets forgotten and doesn`t get cited as precedent by some future corrupt president in terms of how he expects his Justice Department to act on his behalf?
Like if the Trump DOJ did it and it`s known that they did it and nobody got in trouble for doing that, it becomes de facto precedent for what`s okay for the Justice Department to do again. So you`re just hoping that people will forget it happens that nobody will cited in the future once and future corrupt president gets in there? Apparently.
And even more recently than that, late last night the Justice Department under Merrick Garland told the court that the Justice Department is now going to continue the position of the Trump era Justice Department in the stomach-turning case of E. Jean Carroll.
Ms. Carroll, you`ll recall, it`s a very high-profile case. She accused former President Trump of rape. He responded by insulting her and calling her a liar. In response to that, she sued him for defamation, in his personal capacity as a private citizen.
The allegation was about she says it happened many years before he was president. The defamation case was him defaming her allegedly defaming her in response to hurt making those allegations.
Last fall in September, there was a sort of shocking move made by Attorney General William Barr when he asked the court would remove Trump as the defendant in that case and substitute in the United States government to be the defendant instead.
Barr said when Trump made these public claims that E. Jean Carroll was a liar and he couldn`t have raped her because he doesn`t like the look of her, William Barr went to the court and said this statement from Donald Trump was him carrying out the official duties of the presidency of the United States and therefore the government will defend in this case. He`s effectively immunized.
It was a shocking thing right to say that this was an official act by the president. But the point of that acts by William Barr was to immunize Trump and also to make the case go away. Legally, the U.S. government could not be sued for defamation and so far succeeded in this shocking ploy and if he was able to get the government itself swapped in to be the defendant instead of Trump, while the government cannot be sued for defamation and result in her case dying instantly. It`s a really shocking move by William Barr when he did that last fall.
Late last night, Merrick Garland in the Biden Justice Department said they were sticking with it. They`re sticking with that position. With what Barr and the Trump Justice Department tried to do there to rescue Trump from that case. Merrick Garland is going to stick with that plan.
Oh but wait, there is more. We`ve also learned this week about Bill Barr and the Trump Justice Department going after reporters to try to get their sources. First, it was reporters of "The Washington Post," then it was the Pentagon correspondent at CNN. Then most recently, it was four reporters from "The New York Times."
All of these reporters have written stories way back in 2017 that in their own ways were critical of Trump and the Trump administration.
Years later, in the last days of the Trump administration during 2020, William Barr apparently approved subpoenas to try to find out those reporters sources for those stories. Under William Barr, they demanded these documents and records to try to find out reporters sources. They did it in secret without notifying the news organizations of what it was they were looking for.
And again, that sort of action taking it in secret, not notifying the news organizations just to what they were after that would seem to be a clear violation of Justice Department policy as former Attorney General Eric Holder explained to us here last night in our interview with him.
Very clear violations of the Justice Department policy and a really serious issue. That`s Justice Department officials breaking Justice Department policy, misbehaving in serious and substantive ways. What do you do about that? What is Merrick Garland now in charge of the Justice Department doing to clean up the behavior of his agency under its previous leadership? To find out what happened, to make sure people get in trouble for having done that so it doesn`t happen again, so it doesn`t become a de facto precedent that future corrupt presidents will use?
What did Merrick Garland to in response to the revelations of that misbehavior by Justice Department official when it came to seeking reporter sources? What did he do? Well at least for a while during the Biden administration, the Justice Department kept doing it. Kept seeking the reporters` records and not telling the news organizations what they were doing. At least for a while, at least in its how it started to come out.
Come on. I mean, I get the poetic justice of putting Judge Merrick Garland in this really big prestigious job after he was so mistreated by the Republicans in the Senate, after he didn`t get the Supreme Court seat. I get the good karma, whatever.
But at the Justice Department, which he`s running, there is a challenge unlike any other in government right now which is to clean house at that department with its awesome power and its massive resources to clean house and clean up and find the depths of the bad behavior and misconduct by officials at that agency, after the previous president really did use federal law enforcement, he really did use the U.S. Justice Department to lawlessly go after his enemies and reward his friends.
Under Donald Trump, the U.S. Justice Department was corrupted in multiple cases. Trump didn`t just want to do that. He didn`t just express a desire to do it. Under Bill Barr, he did it because there were Justice Department officials who did it, who went along and took the calls, took the instructions, who squashed the stuff that White House wanted lawlessly quashed, who force the stuff that they wanted lawlessly forced.
That can`t stand as precedent. The U.S. Justice Department is too important. Its credibility is too irreplaceable. That misbehavior during the Trump era at the U.S. Justice Department has to be cleaned up. Has to be found out, ferreted out, punished and cleaned out and come clean to the American people about it, or the Justice Department will be used that way again by the next corrupt president who sees what happened under Bill Barr and the former guy as a legacy of corruption that you can build on and trust me it will happen.
The job of cleaning up a corrupted U.S. Justice Department is a terrible one and a really hard one. But it is a necessity for all the obvious reasons. You can`t just wish that stuff didn`t happen and agree that under your leadership, it won`t happen again. It`s a terrible job. A really hard job, but it must be done. You can`t leave that stuff unpunished because it becomes precedent.
And we knew that job would be hard no matter who president Biden picked to be his attorney general, but I`m not we sure we knew to expect that some of the worst stuff from the Trump era Justice Department or the other Justice Department would not only be corrected in terms of accountability it would be continued under the new Biden administration.
We knew it had to be cleaned up. We hoped it would be cleaned up and I don`t think anybody expected it would be continued.
We`re going to have more on the E. Jean Carroll case, that shocking decision coming up later on in the show. We`re also watching closely now in terms of how the Justice Department is going to go after reporters sources. After this kerfuffle with "The Washington Post" reporters and "The New York Times" reporters, just today, new threats from the Biden administration that they have opened a massive leak investigation into the source behind this big bombshell story from "ProPublica" about the richest Americans radically under paying their taxes compared with regular Americans.
Of course, unauthorized disclosure of private or stolen information from the IRS is a big deal but so is using the power of the criminal law to try to pry reporter sources out of them. That was done improperly, potentially illegally under the Trump Justice Department. Under the Biden administration, some of that continued.
How are they going to handle this one? Is this also going to also be handled like Bill Barr`s Trump Justice Department did it to? Like all the rest of this stuff has been?
President Biden leaves early tomorrow for his first foreign trip. He`s going to a G7 meeting he`s meeting with a number of European leaders, European Union leaders. He`s got his big summit with Vladimir Putin. He`s going to be gone for a few days.
Before he left the White House announced that after weeks and weeks of talking to Republican senators to see if they would support Biden`s infrastructure bill, surprise, it turns out that Republicans aren`t going to support anything. I could`ve told you that weeks ago. In fact, I think it did as did all the progressives and most of the moderates in the Democratic Caucus on Capitol Hill. This is not a surprise really.
Did anybody really think the Republicans were going to negotiate in good faith with Joe Biden about supporting an infrastructure bill and all vote for it with big bipartisan number so something can be passed in the American people with all feel good about it because we have a government that works again because Republicans want Americans to believe that, really? I mean -- what about Republican senators tells you that`s how they`re likely to behave these days?
The Republicans I will say to get a big concrete win here out of these talks that we`ve engaged in with the White House. They`ve won themselves three weeks at least of the Democrats chatting pointlessly while the Republicans stretched it out as long as possible, running out the clock will never intending to give many votes at all. Think of the judges they could`ve nominated and confirmed during these pointless weeklong talks. Think of the progress they could`ve made towards building the infrastructure bill so that Democrats can pass it by budget reconciliation using just 50 votes, using just their own boats instead of stringing this thing out and wasting their time while Republican senators only pretend to seriously consider the matter.
Democrats are only going to control the House and the Senate for so much time. Every day wasted where they`re not passing stuffing confirming people is a win for the Republicans. Every day, the Republicans can get that Democrats to not do something, that is a win for the Republicans and it`s an inexplicable waste from the Democrats.
I say inexplicable because the Republican leadership has not made a secret of this. They`ve explicitly promised that their whole 100 percent focus will be blocking whatever it is that Biden wants to do no matter what it is. Once they`ve admitted that publicly why, would you waste time not doing stuff and instead talking to them about their feelings?
Tonight, Republicans in the Senate blocked the Senate bill on equal pay for women. Because they could. Because why not?
Senator Joe Manchin is blocking his own party`s voting rights bill on the basis of the fact that Republicans won`t vote for it. That is only objection.
What else are Democrats going to be able to do? I mean, on the point of voting rights I think I should mention that the Justice Department under Merrick Garland has done nothing on voting rights, at all really. Zip.
Every Republican controlled state in the country is now moving legislation. Some haven`t acted new laws already to rollback voting rights in ways that target voters of color, core voters, other constituencies that are considered likely to vote Democratic. The U.S. Justice Department under Merrick Garland has taken no action to defend voting rights versus these new Republican passed state laws to restrict voting rights.
U.S. Justice Department has done nothing and they`ve taken no action even in the face of what the U.S. Justice Department itself has warned. It`s an ongoing violation of federal law. The Cyber Ninjas thing that they`re doing in Arizona. The Justice Department has warns that that exercise in Arizona is in violation of federal law in terms of mishandling federal ballots and voting machines.
Under Merrick Garland, the Justice Department did write a letter to Arizona Republicans basically telling them that their cyber ninjas thing was in violation of federal election laws but that`s it. They sent a letter, since then nothing.
So what would you do if he were Trump supporting Republicans who got a stern letter telling you you are breaking a law and then nothing happened after you didn`t change anything you are doing despite that warning? You would see that as effectively permission to keep doing what you`re doing.
And so, with nothing to stop them from doing what they`re doing, even though they`ve been explicitly told it`s a violation of federal law, they`re not only getting away with it they`re moving to spread this nationwide. They invited Pennsylvania Republicans to tour the Cyber Ninjas audit site a few days ago in Arizona. Those Republican state legislators from Pennsylvania have not gone home and their agitating to do the same thing in the Keystone State.
Today, Arizona Republican Cyber Ninjas folks hosted more Republican state legislators this time from Georgia and also from Alaska and so they can do something like this in those states to. They`ve got plans in the works apparently to host Republican legislators from Virginia next and Wisconsin after that. I mean why not?
They are mishandling ballots from a federal election and voting machines from a federal election so they can tell tales and cast suspicions on the election results that put Joe Biden in the White House. It might be illegal for them to do. It might be illegal for these organizations and these Republican legislators to hand over federal ballots and election machines to uncertified, unqualified partisan actors like this in the way that they`re doing. But who cares if it`s illegal as long as they`re not going to get in trouble for it, why would they stop?
Under Merrick Garland, the Justice Department notify them to breaking the law and then they did nothing about it. Are you noticing a theme here?
Letting all this stuff slide is not only not going to stop it from happening now, but it`s not a way to stop it from happening again. And I do absolutely and an cynically get the poetry that goes around comes around karma of putting Merrick Garland at the Justice Department after what happened to him not getting on the Supreme Court. But under Merrick Garland, the Justice Department so far is able on all of the scariest things that confront them right now.
How long does that last? How long can it last honestly?
More ahead. Stay with us.
(BEGIN VIDEO CLIP)
JOE BIDEN, PRESIDENT OF THE UNITED STATES: What the Biden Justice Department will do is let the Justice Department be the Department of Justice. Let them make the judgments of who should be prosecuted. They`re not my lawyers. They`re not my personal lawyers.
Turning this into a vehicle for your own law firm, you don`t own that Justice Department. You pick the best people you can and you hope that what they`re going to do is enforce the law as they see it. But can you remember any Republican president going out there or former Democratic president go find that guy and prosecute him? You remember that?
Oh, by the way, I`m being sued because a woman accused me of rape. Represent me. Represent me. Personally represent me and the state of New York on my not allowing my tax returns.
What`s that all about? What is that about?
(END VIDEO CLIP)
MADDOW: Yeah, what was that all about? That was candidate Joe Biden last fall criticizing President Trump for you turning the U.S. Department of Justice as he put it into his own personal law firm, including the Justice Department telling the court, telling the federal court that Trump was engaged in his official duties as president of the United States when he said about a woman who accused him of rape he she was a liar. He said he could not have raped her because she was not his type.
The U.S. Department under William Barr and Donald Trump told the court that that was an official pronouncement by Trump in his official capacity is president and therefore the Justice Department would represent him in that case and would in fact insert the U.S. government as the defendants in that case to replace Trump.
The woman`s lawyer, Roberta Kaplan, rebutted that effectively by saying this. Saying, quote, calling a woman he sexually assaulted a liar, a slut, or not my type as Donald Trump did here is not the official act of an American president.
Federal judge last full agreed but late last night, the Justice Department under the Biden administration, the Justice Department led by Merrick Garland said they would appeal that judges ruling and try to continue with the Trump Justice Department`s case that Trump cannot be held liable for those allegedly defamatory statements that he made.
Joining us now is Barbara McQuade. She`s former U.S. attorney for the Eastern District of Michigan.
Barb, I`ve missed you. Thanks so much for being here. It`s great to see you.
BARBARA MCQUADE, MSNBC LEGAL ANALYST: Thanks, Rachel. Great to be back.
MADDOW: Let me ask you first of all if I`ve explain this in a way that just justice to the controversy here.
MCQUADE: Yeah, absolutely, I think everything you`ve described is accurate. Merrick Garland came into this job with a mission of restoring the independence of the Justice Department and a commitment to be nonpartisan in all of his decisions. But I think maybe he`s overcorrected. He is reminding me of the dad who coaches his own child in Little League and out of an abundance to show just how fair he is, benches his own kid even though he`s the best player.
Nobody notices how far you are if you lose the game.
MADDOW: On the E. Jean Carroll case, the -- I remember the shocked across the legal world and certainly the news reading the public when the Justice Department made this decision that they told the court that this defamation case against Trump can`t go forward, he was acting in his official capacity as president when he said these defamatory crude, untrue things about E. Jean Carroll and therefore, it`s the U.S. government that you`re going after. The U.S. government can`t commit defamation and so the case has to die. I remember the shock of the Justice Department doing it.
Is there similar shock today in the legal worlds that the Justice Department under Merrick Garland is continuing with that line of argument to the courts?
MCQUADE: Yeah, I think it`s the wrong decision now. I think if you were to ask them their views, they would say we are defending the office of the presidency and not Donald Trump, per se. And it`s important that we protect to this right of the president to say whatever it is he needs to say in the scope of his duties.
But the reason this fails, I think, is the reasons that were stated by the trial judge in this case when he rejected this position that the Justice Department took in the court below. You know, this idea of scope of employment, the typical case is a letter carrier, mail carrier is involved in an accident with his postal truck while he`s on duty.
In that case, we say he was in the scope of his duties. He was doing his job, he was doing what he was hired to do. And his conduct was in the interest of his employer of the United States. Now, if, instead, delivering the mail, he takes his mail truck and goes to a drag race or uses it to assault his neighbor, then we would say he was acting outside the scope of his employment and we would not substitute the United States there.
And so I think in this case with president Trump, it was not a situation where he was using his office to further and advance the interest of the United States. He was acting in his own self interest about something that occurred in his private life 20 years earlier. And as the judge said, it`s just too attenuated to consider to be within the scope of his employment.
MADDOW: Barbara McQuade, former U.S. attorney from the Eastern District of Michigan -- Barb, thank you so much for giving us some perspective on this. It`s great to see you, thank you.
MCQUADE: You bet, Rachel. Thank you.
MADDOW: All right, we`ve got more here ahead tonight. Stay with us.
MADDOW: Late this afternoon, we got sort of a long awaited word that talks between the White House and Senate Republicans on an infrastructure bill had collapsed, like an obsolete crumbling overpass that was never repaired.
The White House invested almost two months of its time negotiating with Senate Republicans. That is time they will never get back, and in the end, they will get no Republican votes. Republicans will also provide zero votes for voting rights, they`re voting rights bill appears to -- Democrats voting rights bill may have suffered a fatal blow after West Virginia Senator Joe Manchin wrote an op-ed this weekend confirming that he is opposed to voting rights legislation, because Republicans will all oppose it.
Even in investigation into the January 6 attacks appears to be dead after Senate Republicans filibustered it.
President Biden heads off to Europe tomorrow morning for his first foreign trip and it is a long one, but it feels like his agenda at home is quite stymied as he leaves. Maybe his administration will get some judges confirmed and they finally started doing that today, four and a half months after his presidency.
But what else can the administration get done now?
Joining us now is Washington Congresswoman Pramila Jayapal. She`s chair of the Congressional Progressive Caucus.
We`ve been checking in with her periodically about the progressive perspective on the Biden agenda.
Representative Jayapal, it`s great to see you. Thanks for your time.
REP. PRAMILA JAYAPAL (D-WA): It`s so great to be with you, Rachel.
MADDOW: So, we last book about three weeks ago. We talked about those talks with Republican senators on infrastructure. You said it was like waiting for Godot, basically saying what are you waiting for this is never going to happen. I have to ask for your reaction after you have been proven to be right about that.
JAYAPAL: Well, I wish I was absent in some way. We were just waiting uselessly, it was five weeks ago that Mitch McConnell said that 100 percent of his energy was going to be focus on ensuring that he blocked anything from the Biden administration. Three weeks ago you and I were talking when the Republicans had just given their first offer, which was less than 10 percent of President Biden`s total proposal, just for infrastructure.
And today, here we are, you know, apparently, still negotiating with a different group of Republican senators. I just have to say, Rachel, we can wait another week. We can negotiate with one different Republican senator, or two different Republican senators, but the result is not going to be different because this Republican Party has no interest, these Republican senators, have no interest in doing anything that the people desperately need or want.
These jobs and family proposal from the president are wisely popular across Democrats, independents and Democrats just like the American Rescue Plan was. If we want to use history as an example, there was not a single Republican vote for the American Rescue Plan, there is not a single Republican vote, there weren`t enough Republican votes for the January 6th commission.
This is a party that is not interested in delivering for the people, so we should just move ahead of right now, get the budget resolutions going and do a budget reconciliation bill, big, bold and fast.
MADDOW: What do you say to Americans watching who say that they may have supported President Biden, may have supported Democrats in down-ticket races, who feel like they got Democrats elected to the White House to control the House, to control the Senate, and it does feel like treading water right now, it does feel like stop just stopped after the COVID relief bill. Nothing else feels like it`s going to happen.
What do you say to people who feel frustrated or a little hopeless given that outlook?
JAYAPAL: Well, you know, I think this is real. Our caucus just did a focus group in swing districts, both ones that we lost and ones that we won with surge voters, right? These are Democratic voters who are young folks, people of color, but also with swing voters.
All of them are saying, deliver for us, don`t just talk about it deliver for us. So, I understand the frustration and that is why we have been saying at the progressive caucus, we have to get this done, no more negotiating with the party that`s not interested in negotiating. This -- you said it, the last time I was on your show, you know this made it very clear that Republicans do not want to come along.
It is again very clear that Republicans don`t want to come along, if we`re going to get this done the president needs to do what he did with the rescue plan which is say, this is my agenda, this is what the American public wants, and I am sticking to it and we are going to go and do it by ourselves. And by the way, Rachel, those Republicans will probably claim some credit for it even though they voted no, just like they did with the rescue plan.
MADDOW: Right, exactly, that`s always the tale when they vote no and then they go home to their constituents and say, isn`t that a great legislation. Don`t forget about me, after they voted no for it.
Representative Pramila Jayapal, chair of the Progressive Caucus, a key role in the Democratic Caucus on Capitol Hill, thank you so much for your time. Always great to have you here.
JAYAPAL: Thank you, Rachel.
MADDOW: All right. We`ll be right back. Stay with us.
MADDOW: I`ll give you a quick update on a story we covered last week about a man in Missouri name Kevin Strickland. In the `70s, 1978 when he was 18 years old, Kevin Strickland was prosecuted for capital murder, in a terrible crime, shooting deaths of three people in Missouri. He was convicted, largely on the strength of a single eyewitness who said it was him.
Kevin Strickland is still in prison today. He turned 62 years old yesterday. He`s been there again since he was a teenager. He`s serving life in prison.
But his case is now something like out of a fable or a morality play. Mr. Strickland has maintained his innocence since day one. He has said consistently that he did not commit that crime.
He`s not alone in saying that though. In 2009, the one eye witness in the case, completely recanted her testimony. She said she had been pressured by the police to wrongfully accuse him. She says it wasn`t him and she now wants nothing more than to see him out of jail. That was the lone eyewitness.
There were two men who were actually convicted of their role in their crime, they admit their role, they both say that Mr. Strickland had nothing to do with it as well, they`ve both served their time and have finished their prison sentences and they`re out while he still in jail.
Last month, the prosecutors from the case told the court in Missouri that Kevin Strickland was actually wrongly prosecuted, that they made a grave error, he didn`t do it and they believe that he should be immediately freed.
Just yesterday, 13 state lawmakers in Missouri, Missouri -- lawmakers from both party urged Missouri`s governor, Mike Parson, to pardon Kevin Strickland because he did not commit this crime. It is fully within Governor Parson`s power to pardon him, at any point, setting him free, and innocent men who has been wrongfully imprisoned for more than 40 years.
Governor Parson has now finally talk to the press for the first time about Kevin Strickland`s case, what he said reporters is that Kevin Strickland`s case will not be, quote, a priority for him. He views it as just another one of about 3,000 backlogged requests for his attention.
I understand what the governor is saying here, but if there was ever a case for jumping ahead of the line, I might think that 40 years behind bars, when even the prosecutor say you didn`t do it and you should get out, I would say this is -- this is the case that should maybe be a priority.
Watch this space.
MADDOW: All right, that is going to do for us tonight. I will see you again tomorrow night.
Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".
Good evening, Lawrence.