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Transcript: The Rachel Maddow Show, December 21, 2020

Guests: Danya Perry, Dan Diamond

Summary

MSNBC continues its coverage of the coronavirus pandemic. According to two sources familiar with the investigation, NBC News reporting that federal prosecutors in the Southern District of New York have expressed interest and discussed with Main Justice the possibility of trying to obtain electronic communications from President Trump's personal attorney, Rudy Giuliani. The COVID relief bill meanders its way through the Congress and toward the president's desk.

Transcript

CHRIS HAYES, MSNBC HOST: Yeah. It's really well said.

Heather Long, Dave Dayen, thank you both for that. That was great.

That is ALL IN on this Monday night.

"THE RACHEL MADDOW SHOW" starts right now.

Good evening, Rachel.

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

And thanks to you at home for joining us this hour. Happy to have you here with us tonight on what is the longest night of the year. I know it's daunting to think of this as the official start of winter since it has been wintry enough for a long while already this year in lots of ways.

But the good news is that, you know, whether or not the clouds are in tonight where you live, whether or not you are able to get outside and see the convergence of Jupiter and Saturn right now, creating what appears to be a gigantic star low in the southwest sky, whether or not the sight of that star suddenly gives you an urge to scrounge up some gold, frankincense and myrrh to be Christmas present for a kid you do not know, tonight either way is literally as dark as it gets. It will be brighter every day from here on out, and, boy, do we need that.

As of yesterday, the second vaccine against the coronavirus started to ship out around the United States. The Pfizer vaccine, which was first, and the Moderna vaccine, which today started to arrive around the country, both of those vaccines showed similar effectiveness in clinical trials. The Moderna vaccine does have a couple of logistical advantages, though. First of all, it doesn't have to be held in super deep freeze conditions. It can be stored just at regular freezer temperatures.

But also, importantly, the Moderna vaccine can be shipped out in smaller batches than the Pfizer one, and that might not sound like an obvious advantage at first. But if you are in a rural area or you are a small facility or a small network in an area that's really high-risk and really needs the vaccine, but you don't have that many people who are high-risk and need the vaccine, the large -- the comparatively large minimum order size for the first vaccine, the Pfizer vaccine, made it unlikely that you'd be able to get it if you were essentially a small target, right? The vaccine is so precious, they can't afford to send out a big batch of it to somewhere where it can't all be used.

So it is a logistical advantage that compared to the Pfizer vaccine, the Moderna vaccine has a smaller minimum order size. You can get fewer doses of it in a shipment. That means that it can go to more places without worrying about any doses being wasted.

The first few days of the Pfizer vaccine saw that vaccine shipped to a few hundred sites around the United States. The first day of the Moderna vaccine saw it shipped out to thousands of locations, and part of it are those logistical advantages. So, all of that is, of course, very, very good news.

And did I mention that it's going to start getting brighter tomorrow?

President-elect Biden and the incoming first lady, Dr. Jill Biden, both were vaccinated today. They both got the Pfizer vaccine.

Dr. Anthony Fauci will get his vaccine on camera tomorrow. I know for some people who were worried about the Trump administration leaning on the approval process for the vaccines the way they did, I know for some people who are concerned about that, it will take seeing Dr. Fauci himself vaccinated before those folks feel comfortable perhaps with the vaccine. But Fauci is going to be vaccinated tomorrow. That day will arrive tomorrow.

Vice President-elect Kamala Harris and her husband, Doug Emhoff, will both be vaccinated next week.

All through the weekend and then all through today and tonight, we have been watching what I've come to think of as the Shrinky Dink COVID relief bill meander its way through the Congress and toward the president's desk. The scope of the bill is set. They've combined COVID relief with funding the government and all this other stuff, and it ended up being, you know, 5,000-plus pages of sort of a legislative mess.

But the COVID relief bill that the parties in the two houses could agree to are included. We're going to have more ahead tonight. The final votes are happening as we speak right now. Once those go through it will ultimately start the process of sending all of those pieces of legislation to the president's desk.

But let's talk about that presidential desk for a moment because we do have some news to share tonight, a story that we've been working on for a while now that has been hard to pin down, but now we've got it pinned down, and so I can tell you about it. It is about the president's lawyer, who is increasingly the president's chief enabler on the craziest ideas the president is marinating in about how he can still stay in the White House even though he lost the election. He can declare that he won the election and somehow use the power of the government to overturn the election results. He can maybe seize the voting machines from swing states and then do something to the voting machines that will result in the election result being reversed.

Rudy Giuliani, the former mayor of New York, the chief Keystone cop in the Ukraine extortion scheme that led to the president's impeachment this time last year, Rudy Giuliani, the lawyer who has been traveling around the country hyping one failed lawsuit after another to try to find some way to keep the election results a live controversy in the mind of the president's supporters and in the mind of the president himself -- Mr. Giuliani has been the chief enabler of these fantasies for the president in the seven weeks since the election.

Now, "The New York Times" was first to report this weekend and reporting since matched by a number of other news outlets -- "The Times" was first to report Mr. Giuliani himself has been calling the Homeland Security Department of the United States, demanding that on behalf of the federal government and on behalf of the Trump administration and on behalf of all the crazy fantasies about the election being stolen by lizard people or the illuminati or Venezuela or whatever, Mr. Giuliani has not only promulgates these theories to the public and endorsed them to the president and tried to persuade Republican state legislators all over the country to go along with these things, he has not only brought these things to courts all over the country that have largely laughed him out of those courtrooms, Mr. Giuliani has also -- and this is a qualitatively different thing. He has also, we now know, been directly contacting federal government agencies as the president's lawyer, telling them, telling the Homeland Security Department that that agency should go to the swing states and seize their voting machines so as to somehow nullify the election results from those states.

Now, as I said, Mr. Giuliani has been the chief enabler of these fantasies for the president. He is apparently also trying to effectuate some of the wildest schemes these guys have dreamed up about how Trump can somehow subvert the election results and stay in the White House.

Well, to that, we can add new reporting tonight that Mr. Giuliani is also simultaneously the subject of a, quote, very active federal criminal investigation by prosecutors in the Southern District of New York. We can report tonight, according to two sources familiar with the investigation, that federal prosecutors in the Southern District of New York have expressed interest in and have discussed the possibility of trying to obtain Mr. Giuliani's electronic communications.

Broadly speaking, the federal prosecutors have talked about trying to obtain those communications for a case against Mr. Giuliani that is not just ongoing, it may be ramping up. Let me just say that one more time because this is -- this is breaking news.

Federal prosecutors have expressed interest in and the possibility of taking the extraordinary step of obtaining Rudy Giuliani's electronic communications for an ongoing and perhaps accelerating federal criminal investigation of Mr. Giuliani. Now, whether prosecutors would take that step of accessing his electronic communications by way of asking a court for a search warrant or by asking a grand jury to subpoena the records, we don't know. Either of those are potential avenues for federal prosecutors seeking access to these kinds of materials.

Now, we've been reporting this story with our colleagues at NBC News. They have just posted their story about this matter online at NBCnews.com. But one of our sources tonight tells us that this case at SDNY involving Mr. Giuliani is, quote, very active. Neither SDNY nor Main Justice would comment for this story.

But it's important to note as a matter of context that the federal prosecutors in SDNY, federal prosecutors in New York can't move forward. They can't ask a judge for a search warrant in a case like this without at least some level of approval from higher ups at the Justice Department in Washington, D.C.

I mean, first of all, since Mr. Giuliani is a lawyer and he plays one on TV, prosecutors always have to take special precautions to ensure that they are not improperly accessing any of his correspondence that is protected by attorney-client privilege. That's a sort of standard permission structure that prosecutors need to go through because of the sensitivity of protecting the legal process.

But also, of course, you know, elephant in the room here, Mr. Giuliani is not just a random lawyer. He is a lawyer for the president. And so that is a undoubtedly sensitive matter that Main Justice would -- that would result in Main Justice likely having a hand in decisions about in terms of opening a case or taking new investigatory steps against someone in that kind of a position, let alone the possibility of ultimately charging or potentially arresting such a person. You would expect Main Justice to have some level of awareness at least about what line prosecutors were doing at a U.S. attorney's office when it came to somebody like that.

Now, we do not know the exact timing of the discussions within the federal prosecutor's office in New York about asking a judge or a grand jury to obtain Mr. Giuliani's electronic communications. We do not know whether prosecutors in New York have gotten the green light from Main Justice to do this. But we can report that they have been in communication about this with the brass in D.C. and that, again, is because the case at SDNY right now is considered to be very active. If any of the prosecutors or justice officials involved were previously, at an earlier stage in this investigation, holding back on allowing any new investigative steps involving Mr. Giuliani because of his relationship to the president, because of the worry specifically that such steps could conceivably have an influence on the presidential election and therefore they should be delayed -- that's justice department policy, right?

Not to take investigative steps -- it's more complicated than that but basically don't do stuff ahead of an election that might influence election. This is what James Comey has been raked over the coals for, who took steps that very much influenced the election in 2016. It's Justice Department policy that shouldn't happen. If that was driving any potential concern about taking these steps with Mr. Giuliani, those concerns would no longer be operative, right? Any worry along those lines of potentially influencing the election, that would now be over because the election is seven weeks behind us as of tomorrow.

But, oh, what a seven weeks it's been. Since the election, it was reported first by "The New York times" that Mr. Giuliani and President Trump have been discussing the president giving a preemptive pardon to Mr. Giuliani, a pardon even though Mr. Giuliani has not at this point been charged with a crime. Now, Mr. Giuliani has disputed the reporting about those discussions, but "The Times" has stood by its story. "The Times" says those discussions between Giuliani and Trump about Trump potentially pardoning him, those discussions have taken place alongside and contemporaneous to this ever escalating roll that Mr. Giuliani has taken as the public mouthpiece for the president's grievances and complaints about the election results.

And apparently, as Mr. Giuliani has now moved on from that to him making personal interventions with the federal government, him personally intervening to try to get federal agencies to effectuate one of these crazy ideas they have about how they could nullify the election by seizing voting machines.

And so, you know, not to state the obvious or anything, but here's the president promising that he's giving everybody a pardon as basically a party favor for the lame duck period. Oh, take this as you go, a parting gift. And here's somebody who it appears might very handily benefit from a federal pardon right now because he is under active and potentially escalating federal criminal investigation.

And that person who could really benefit from a federal pardon, who has reportedly been in talks already with the president about really wanting a preemptive federal pardon, that person has decided that he will be the most help to the president in this off the deep end connivance to try to say the election didn't happen, the election didn't matter, and somehow Trump's president now forever.

There are open and now very interesting questions here about whether SDNY is allowed to proceed the way they want to with this case about Mr. Giuliani, whether Main Justice in the past or now or in the future will try to delay or impede the Giuliani investigation and case.

I should also say that we have no evidence that president Trump has tried to influence the ongoing Giuliani investigation. I should also say that Mr. Giuliani's own attorney tells us tonight that he has, quote, no reason to believe that there's any truth to the allegations that there is renewed interest in my client.

We stand by our reporting nevertheless.

But if you are wondering why federal prosecutors might be so interested in obtaining Rudy Giuliani's electronic communications and what probable cause they may have developed to want to get a warrant for those communications, well, I mean there is a -- it's hard to narrow it down. There is a veritable cornucopia of possibilities in terms of what exactly Mr. Giuliani may be under investigation for, and which of those many investigations might have been the trigger for trying to get a warrant.

I mean, take your pick. Do you remember our friends Lev and Igor, Mr. Giuliani's Soviet-born associates who were arrested October of last year, stopped on the jet bridge while they were boarding a plane to Europe with one-way tickets? They were charged with illegally funneling hundreds of thousands of dollars in foreign donations and illegal donations to support Republican U.S. political campaigns, including to a committee supporting President Trump.

Both Lev Parnes and Igor Fruman pled not guilty to those charges but their indictment laid out the scheme that would ultimately lead to President Trump's impeachment. Lev and Igor had been working with Rudy Giuliani in a scheme to try to smear Joe Biden by pressuring the Ukrainian government to announce some kind of an investigation into Biden and his family. In particular, they had been working to undermine and discredit the American ambassador to Ukraine, Marie Yovanovitch, who they saw as standing in the way of their scheme.

The day after Lev and Igor were arrested, we learned that Rudy Giuliani himself was under investigation for his part in this Ukraine scheme. Federal investigators looking at whether his attempts to get Marie Yovanovitch ousted from her ambassador post might have been illegal.

Then a few days later, we learned that Giuliani was also under investigation for his business dealings. "The Wall Street Journal" reporting that prosecutors at SDNY had examined Giuliani's bank records while looking into his business contacts in Ukraine.

There's also the question of what was going on with all the money that was flowing between Giuliani and Lev and Igor. Lev Parnas paid Giuliani half a million dollars to promote Lev's business venture, which hilariously was called fraud guarantee. Just three weeks ago, Mr. Partner as pled not guilty to new federal charges alleging that fraud guarantee was a scam. Hard to believe, I know, with a name like that.

Now, Mr. Giuliani's lawyer has said those charges have nothing to do with him, but there was also -- I mean, like I said, take your pick. There were all these sketchy energy deals that Lev and Igor were apparently trying to set up with Ukrainian officials when they were meeting with those officials to push the Biden scheme. SDNY was reportedly looking at whether Giuliani stood to profit from those potentially shady energy deals as well.

Toward the end of last year, "The Wall Street Journal" got a look at some subpoenas that had gone out from SDNY to people tied to Rudolph Giuliani. The journal described the subpoenas as indicating, quote, a broad federal investigation into possible money laundering, obstruction of justice, and campaign finance violations and showed that prosecutors are probing Mr. Giuliani's consulting businesses and other sources of income.

Now, Giuliani told the journal at the time he had not been contacted by prosecutors. He has denied wrongdoing. But let us not forget that in the midst of all these various investigations going on, in the final months of last year into Rudy Giuliani's involvement into the Ukrainian scheme that ended up getting president Trump impeached, investigative into his business dealings in that country, in the midst of all that, Giuliani was working still other angles to try to manufacture some sort of scandal around Joe Biden.

Giuliani was meeting with this Ukrainian guy and making weird pro-Trump, like, TV segments with him and funneling information from that guy to pro-Trump media figures in the United States and to pro-Trump Republicans in the U.S. congress. And that guy who Giuliani was working hand in glove with on that part of the smear Biden scheme, that guy turns out he was a longtime active Russian agent. The United States has recently sanctioned that same guy for trying to mess with the 2020 elections on behalf of the Russian intelligence services by peddling fake dirt on Joe Biden, peddling it with the very, very enthusiastic help of Rudy Giuliani.

U.S. intelligence agencies reportedly came to the conclusion that Mr. Giuliani was being used by Russian intelligence to convey back to the U.S. these false allegations against Biden to try to mess with our election. Giuliani's defense, what he said at the time, was that he had, quote, no reason to believe that his sanctioned Ukrainian pal was a Russian agent. So as I said, take your pick as to why federal prosecutors in New York may have decided in recent months that they had probable cause to get Rudy Giuliani's emails, and they wanted to seek access to those emails from either a search warrant or a grand jury subpoena.

But it could have been any one of those things, right? It could be all of them. But I mean right now, on this darkest night of the year, this longest night of the year, let this be your three-way split screen, right? We've got a country in absolute crisis because of the pandemic, too little, too late relief efforts. Bombshell subpoenas for the head of the CDC and the secretary of health and human services today.

The head of a COVID oversight committee in Congress basically alleging that the federal COVID strategy has been so bad maybe on purpose, that it may be that Trump appointees deliberately scuttled any effective effort at trying to contain this virus because they wanted there to be no prevention of people getting this virus. They wanted to go for mass infections because of their misunderstanding of the theory of herd immunity, right?

That's one, nation in legitimate crisis. Hospitals overfilling, astonishing death tolls every day, case numbers that still climb. A federal government response that at this point somehow disappeared 900,000 vaccine doses from the Pfizer vaccine for this week with competing explanations from the government that don't make sense in combination let alone any one of them making sense on its own. That's one.

We've got 30 more days of a government being run by President Trump handling the COVID response this way. That's one.

Second, we've got a president who is freaking out everyone around him right now. The headlines and the quotes from White House officials just over these last three days will curl your hair, right? As Giuliani and the conspiracy theory lawyer Sidney Powell and disgraced and now pardoned national security adviser Mike Flynn have been in and out of the White House over the course of this weekend and today reportedly kicking around a Trump declaration of martial law.

And as I mentioned, Rudy's plan to have the homeland security department seize the voting machines. He has contacted them directly to try to get them to do that. Look at the headlines and quotes we've seen just over the past 72 hours. Some White House officials fear Trump's final days. White House officials concerned the president is spending too much time with people they consider to be crackpots or conspiracy theorists.

Senior Trump administration officials are increasingly alarmed that President Trump might unleash and abuse the power of the government in an effort to overturn the clear results of the election. An escalating sense of concern among Trump aides, even those who have weathered his previous controversies, about what steps he might take as his term comes to an end.

Officials say privately they're worried about what might transpire in coming weeks as the president becomes increasingly desperate. One senior administration official said that when Trump is re-tweeting threats of putting politicians in jail and spends his time talking to conspiracy nuts who openly say declaring martial law is no big deal, it is impossible not to start getting anxious about how this ends. People who are concerned and nervous aren't the weak kneed bureaucrats that we loathe, the official added. These are people who have endured arguably more insanity and mayhem than any administration officials in history.

Those last two quotes were from Jonathans Swan at "Axios", who says this as well on his own Twitter account. Quote: I've been covering Donald Trump for a while. I can't recall hearing more intense concern from senior officials who are actually Trump people.

This is sort of the second of the three screens we're looking at right now, right? We've got the COVID catastrophe. We've got the president, the second screen, wound up in such a state, right, with these folks who are telling him he secretly won the election and he can use the government to seize control of voting machines and thereby flip the results. He can declare martial law and somehow suspending civil rights and putting the military in charge and the military in the streets, that will keep him in office too.

I mean, it's alarming enough to senior Trump folks, people in the White House now, that they are rattling the bars and calling reporters and telling them this is the scariest it's ever been. We have no idea what he's going to do these last 30 days, but it's not going to be good.

So screen one is the pandemic. Screen two is this rolling disaster at the end of this presidency.

And then here's, you know, screen three tonight, right? The threat of the law, the criminal liability that swirls around the president and looms large for him as he reportedly considers wholesale pardons including for himself, for his family, for those who run his business, and for those who keep telling him exactly what he wants to hear about whether or not he has to leave office.

Pardons for those who keep telling him what he wants to hear, who keep thereby pushing him to more and more extreme options for what he will do next. Oh, you're under federal -- active federal criminal investigation, one that's escalating? Hmm. What do you think we should do about these swing states?

You want to call the homeland security department, see if they can take back all the machines? All these things are happening all together, all at once.

More coming tonight. Stay with us.

(COMMERCIAL BREAK)

MADDOW: We're going to get some expert help now with the story we've been reporting out tonight along with our colleagues at NBC News.

Again, we can report tonight that according to two sources familiar with the investigation, federal prosecutors in the Southern District of New York have expressed interest in and have discussed with Main Justice the possibility of trying to obtain the electronic communications of the president's personal attorney, Rudy Giuliani, who remains under what we're now told is very active criminal investigation by federal prosecutors.

Now, as we understand the process, we believe that those prosecutors can't ask a judge directly for a warrant for those communications without getting the go-ahead from higher ups at Main Justice in Washington. And while we can report that prosecutors at SDNY have discussed this subject with Main Justice, we don't know whether Main Justice has given them the all clear.

So we want to look at this part of the process and this part of the equation with a couple people who are intimately familiar with how this works, both from the asking permission side and from the granting permission side.

So in just a moment we're going to speak with our friend Chuck Rosenberg. He's a former senior Justice Department official. We're going to talk to him about the view from Main Justice.

If there are prosecutors who come to you and say, hey, this is sensitive. We want to get a warrant for the electronic communications of the president's personal lawyer, how is that handled under normal circumstances by Main Justice? What should we look for if we're concerned it could potentially have been mishandled or diverted?

MADDOW: But then also what about the prosecutor's side, what about being there at SDNY, needing to get the go-ahead for something that you believe your case really needs?

Well, to that point, joining us now is Danya Perry. She's former deputy chief of the criminal division at SDNY. One of her responsibilities there was reviewing search warrant requests for prosecutors from the Southern District.

I should note that Ms. Perry has been on this show before in her capacity representing former Trump lawyer Michael Cohen.

Danya Perry, it's really nice of you to be here tonight. Thank you so much for making time.

DANYA PERRY, FORMER ASSISTANT U.S. ATTORNEY SOUTHERN DISTRICT OF NEW YORK: Great to be here. Thanks, Rachel.

MADDOW: So, having been part of -- having overseen the Southern District search warrant requests, can you just tell us how this -- how this normally works? I assume that it's a relatively rare thing that you need sign-off from Main Justice to try to get a search warrant from a judge or to get a subpoena from a grand jury once you know what you're looking for from somebody who's the subject of an investigation.

PERRY: Well, actually, with respect to a search warrant for an attorney's offices or electronic devices, it is routine to -- it's by the books. It's regular. It's ordinary for any U.S. attorney's office to consult with Main Justice.

They are required in as much advance time as possible to discuss it with Main Justice and to get essentially sign-off. And that is just meant to ensure the protection of attorney-client privilege, which is sacrosanct and does need to be monitored across the boards and across all jurisdictions. And so with respect to a search warrant for an attorney's property, consultation is required, as I said, with the criminal division and, in this case, surely it would go up to the level of attorney general.

Approval is not necessarily required, at least according to the justice manual. So just to back up for one moment, when I said that there's a routine, by-the-books protocol, the book in this case is the justice manual, which applies to and governs the conduct of all prosecutors in all federal jurisdictions.

And so under that bible, the justice manual, every prosecutor is required to reach out and provide that notice and to make sure not that there's probable cause, not that there's reason to believe that the fruits or evidence or instrumentalities of a crime would be found on the property to be searched, but really to ensure that there's a filter team in place and that appropriate protections are put in place to safeguard the attorney-client and work product privileges.

So that is what happens in every case. I saw that over 11 years at the Southern District of New York, where, as you mentioned, I served as deputy chief of the criminal division overseeing this type of thing. I've also seen on the defense side -- as you mentioned, I represented Michael Cohen, I also represented Michael Avenatti, both of whom had multiple search warrants executed with appropriate filters in place, all of which was approved presumably by Main Justice.

MADDOW: And, Danya, if there is a disagreement between line prosecutors and Main Justice, not necessarily on the technical aspects of whether or not a filter team can be put in place and whether or not attorney-client privilege can be protected while still allowing prosecutors access to the materials they're after, but if it's not a different basis, if it's this is too close to the election or we don't like the case that you are pursuing here or this is, you know, something where we disagree with your theory of the case, if there is disagreement of that kind, how does that resolve? Does Main Justice always win?

PERRY: Well, again, that's not the purpose for these protocols. The purpose is it is meant to be a consultation. It is not meant to be a re-review or a super review of the particular attorney's office believe there is probable cause in a particular matter.

So while there were other particular processes put in place with respect to the Ukrainian investigation and with respect to senior members of the presidential campaign, both of which would have implicated Mr. Giuliani, it is not appropriate and it is not regular at all for Main Justice to -- to veto or to reject a search warrant for political purposes or for other purposes. They might push back on some of the protocols and the safeguards in place or the filter team.

They might have questions. They might seek clarification. But I have never seen an attorney search warrant rejected, and I don't believe that in this case, that it would be rejected. Search warrants were approved with respect to numerous other devices and properties in the Parnas and Fruman investigation.

That is ordinary, typical, regular, and I would expect that approval would also be granted in this case with appropriate safeguards in place.

MADDOW: Danya Perry, former federal prosecutor from the Southern District of New York -- I should mention senior role there, deputy chief of the criminal division at SDNY -- Danya, thanks for helping us understand this from the prosecutor's perspective. I really appreciate your time.

PERRY: My pleasure. Thanks, Rachel.

MADDOW: All right. Let's bring into the conversation now Chuck Rosenberg, not only a former U.S. attorney, but former senior Justice Department official.

Chuck, it's great to see you. Thank you so much for being here with us tonight.

ROSENBERG: My pleasure, Rachel. Thanks for having me.

MADDOW: Let me just ask your top-line reaction to this news that we are reporting tonight, and let me ask you to correct me if I've said anything wrong about the way the process works or what seems notable and newsworthy about this case.

Let me just give you a chance to kind of wind me back or point me in a different direction if you think that's warranted.

CHUCK ROSENBERG, FORMER U.S. ATTORNEY: No need to wind you back or point you in a different direction. I think you explained it well, and I think you explained it accurately.

MADDOW: In terms of the way Main Justice and the prosecutors would interact here, I should reiterate we know that the prosecutors who are investigating Mr. Giuliani at SDNY have expressed interest in getting these communications. We know they have talked to Main Justice about that. We just had an eloquent explanation from Danya about the kinds of concerns Main Justice might have about the fact that he's an attorney and you have to protect the sacred nature of attorney-client privilege, but that there are also justice department rules governing these things.

One of the parts of this box that's still black to me that I would really like to see into is whether there has been any effort by Main Justice to lean on SDNY about this or to improperly intervene or divert or slow them down. We don't know.

Where would we look, or how would we approach this in order to try to see whether that was the case?

ROSENBERG: You know, it's interesting to me, Rachel, when we've seen interference or that heavy-handed political interference, for instance in the stone and Flynn cases, how did we learn about it? We learned from the line prosecutors in the field about what was happening, right?

There was this hue and cry from AUSA's in the field. So not hearing that and not hearing that in this case, I'm assuming some regularity here, that it's just Main Justice career folks and the field, SDNY, AUSA's in this case, working together to try and get a search warrant approved.

So, presumption of regularity, you know, Danya explained it really well. I've been on both sides of the equation. I've been in the field as an AUSA. I've been at Main Justice. There's a typical healthy tension.

Occasionally, it gets a little unhealthy, but typically a healthy tension between the two. And Danya is exactly right. Main Justice consults at the request of the field on these search warrants for attorneys. They want to make sure there's a filter team, a review team in place, because we do take the attorney-client privilege very seriously.

They want to make sure that the prosecutors in the field have exhausted other alternatives -- meaning they really, really need this stuff via search warrant. And all those things being, you know, in place, being accurate, typically, as Danya said, the folks at Main Justice sign off on it. I haven't had trouble as an AUSA in the field getting these types of warrants approved.

MADDOW: Chuck, let me ask you about Mr. Giuliani's case in the particular, because he's been involved in so many of these lawsuits trying to overturn the election results. On one of the filings he made in a Pennsylvania case, you can see Mr. Giuliani uses an iCloud account. ICloud, of course, is an Apple product.

If Mr. Giuliani reacts to our reporting tonight by putting all of his electronic devices in a blender and hitting puree, would you expect that Mr. Giuliani's electronic communications could nevertheless be obtained by subpoena or by a search warrant through the companies that he has used for either his phone service or data plans?

ROSENBERG: Well, sure. That's a great question, Rachel. There are a bunch of places that investigators will go. For instance, they could go to the provider, Verizon or T-Mobile or whoever that may be and get stuff that is stored. They could go to Mr. Giuliani's home or office and get his devices and get communications off of that. They can even get communications from other people with whom he's corresponded.

I mean, unless Mr. Giuliani is only writing to himself, there are other people involved in all of these communications. And so when you take a belt and suspenders approach to investigations, you go to each of these places, and you get as much as you can, and you try and corroborate it with other stuff that you get from other people.

You know, one thing that strikes me, Rachel, Mr. Fruman and Mr. Parnas, who you talked about earlier, we have no idea whether or not at this point they're cooperating and whether or not their cooperation is what led prosecutors in the Southern District of New York to take this next step. Maybe that's part of the probable cause determination.

So you triangulate in these cases, and you get as much information from as many different places as you possibly can. And so, to your point, if he decides to put all of his personal devices in a blender and hit puree, there are still other places for investigators to look.

MADDOW: Chuck Rosenberg, former senior official in the Justice Department, former U.S. attorney and invaluable member of our family here at TRMS -- Chuck, it's great to see you. Thank you so much for being here tonight.

ROSENBERG: Thank you.

MADDOW: All right. We've got much, much more here ahead tonight.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: As Congress moves tonight to pass the Shrinky Dink COVID relief bill and send it to President Trump's desk for a signature, Congressman James Clyburn is at work on another side of this crisis. He's the head of the committee in Congress that oversees the administration's COVID response.

And today, Congressman Clyburn issued subpoenas to the Trump Health and Human Services Secretary, Alex Azar, and to CDC Director Robert Redfield.

They each now have until next week, till December 30th, to produce documents that could shed light on the Trump administration's political interference at the CDC.

Now, in making the announcement about these subpoenas today, Congressman Clyburn also detailed even more efforts by Trump political appointees to alter or block scientific work at CDC. In particular, he outlined meddling into the agency's flagship scientific publication, the MMWR, Morbidity and Mortality Weekly Reports.

MMWRs really are the gold standard public health documents. They're the best in the world. They're cited for years and decades after they are issued because they are unimpeachable. They were.

We now know that over the course of this pandemic, they've corrupted them too. Trump appointees have tried to, at least, suppress or alter more than a dozen of these reports. They targeted MMWRs on hydroxychloroquine, the drug which the Trump administration and Fox News repeatedly tried to position as a miracle cure despite all the evidence to the contrary. Trump officials also tried to intervene on MMWRs about the use of face coverings and the spread of COVID among kids.

And the extent of that pressure campaign, them trying to mess with more than a dozen of these things, is enough to kind of put you back on your heels. There's something else that Congressman Clyburn said in his letter today that I found even more bracing. Clyburn writes that today's subpoenas were necessary to, quote, understand who in the Trump administration was responsible for this political pressure campaign and whether it was intended to cripple the nation's coronavirus response in a misguided effort to achieve herd immunity.

Congressman Clyburn is saying basically we need to get to the bottom of not just how they were trying to mess with the science but whether the Trump administration was actually trying to suppress and pervert all of this information to deliberately make our country's containment efforts fail because they believed that would somehow put us on the path to herd immunity because they don't understand herd immunity. The idea that we might have had the world's worst COVID response as an industrialized nation not only because we were ignorant and incompetent but because it was deliberately designed to be so by Trump appointees who messed with the science in order to get the most Americans infected that they could, Congressman Clyburn has been trying to get to the bottom of this interference at CDC for months. His committee started this investigation in mid-September. That was just days after explosive reporting from politico which first detailed efforts by political appointees to interfere with those MMWR reports.

The reporter who first broke that news and started that federal investigation that has now yielded this incredible development and these subpoenas, the reporter who broke that news way back in September was Dan Diamond. He has been all over this story in the months since. He joins us live here next.

(COMMERCIAL BREAK)

MADDOW: With news today that the CDC director and the secretary of Health and Human Services have both received subpoenas over Trump appointees interfering in the pandemic.

Joining us now is the "Politico" reporter, Dan Diamond, who broke open this line of inquiry months ago with his explosive reporting on Trump appointees were getting up to at CDC. Mr. Diamond has been following the story for months.

Dan, thanks very much for making time tonight. It's nice to see you.

DAN DIAMOND, POLITICO HEALTH POLICY REPORTER: Thank you, Rachel.

MADDOW: So, I'm struck by what Congressman Clyburn is asking for and in part why he is asking for the documents. He says he wants to know more information about the story you first reported that there were Trump appointees essentially muzzling CDC scientists, interfering with their work. But he also wants to know if they're doing so was part of an effort to sort of deliberately screw up COVID response because of a misunderstanding of this idea about herd immunity.

Does that sound strike you as the natural extension, like the right next question to be asking?

DIAMOND: I think we can take it in two parts. What Congressman Clyburn and the COVID subcommittee were looking for, more documents from senior officials who aren't named Paul Alexander. That is a controversial science adviser that we heard about. He is no longer part of the administration.

But there are e-mails that the committee believes they were promised by HHS from people like auto Health Secretary Azar, from CDC Director Redfield, they want to see those documents. And the second issue, Rachel, the idea that there was a deliberate effort to undermine what the Trump administration was doing and the CDC was doing in response to COVID and this idea of herd immunity. I don't think we have a reporting to bear that out yet.

I will say, I know you talked about it and your partner Susan contracting COVID, I have written about vulnerable Pacific islanders in their 30s and 40s dying from the disease, they are the collateral damage of the herd immunity strategy, when we will allow the virus to simply spread. And it's really disturbing to think that any health official would be advocating letting people get sick.

MADDOW: Dan, do you expect that Congressman Clyburn is going to get what he wants from these subpoenas? Is there a way that Azar and Redfield could run out the clock on this?

DIAMOND: I think that's probably what will happen. Reporters have to be careful not to the make predictions. But we're only 30 days away from the next administration. My understanding is that litigation would take too long, most likely the Biden administration will be the ones turning over the documents.

But, also, hard to say. Maybe the Trump administration will make more documents available especially given the public pressure here.

MADDOW: Dan Diamond, reporter at Politico.com, who deserves a lot of credit for opening up this line of inquiry, and showing what was going on. Dan, thank you. Congratulations on your reporting. It will be interesting to see where this goes.

DIAMOND: Thank you. Credit to my colleagues here at "Politico".

MADDOW: Fair enough.

All right. Thank you.

I'll tell you, that Congressman James Clyburn is going to be joining my colleague Ali Velshi in THE LAST WORD in the next hour.

We got a lot more still to come. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Just re-upping the story that we broke at the top of the show tonight. According to two sources familiar with the investigation, we are now able to report that federal prosecutors, this is in the Southern District of New York, have expressed interest and discussed with Main Justice the possibility of trying to obtain electronic communications from President Trump's personal attorney, Rudy Giuliani.

One of our sources tonight telling us the criminal investigation at SDNY involving Giuliani is, quote, very active. This is the "New York Times" reported that Giuliani and Trump have been in discussions about a potential pre-emptive pardon for Mr. Giuliani.

All right. That will do it for us tonight. We'll see you again tomorrow.

Now it's time for "THE LAST WORD," where Ali Velshi is in for Lawrence O'Donnell.

Good evening, Ali.

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

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