COVID raging again across the U.S.; D.C. reinstates mask mandate, expands rapid testing; U.S. grapples with record-breaking COVID surge; Omicron is now the dominant COVID variant in the U.S.; D.C. Mayor says COVID-19 cases up significantly; D.C. institutes full vaccine mandate for government workers with no test-out option; Biden to speak on COVID response Tuesday; Florida Governor DeSantis and Sarah Palin defend anti- vaxxers; Manchin rejects Biden`s Build Back Better Plan
ALICIA MENENDEZ, MSNBC HOST: One final program note. Tonight, Rachel Maddow will be interviewing two key progressive on Capitol Hill, Senator Bernie Sanders and Congressman Pramila Jayapal, to get their takes on the Joe Manchin situation.
That does it for me. THE REIIDOUT with the one and only Jonathan Capehart is up next. Hey, Jonathan.
JONATHAN CAPEHART, MSNBC HOST: Hey Alicia, thank you very much. Have a good evening.
CAPEHART: And good evening, everyone. I am Jonathan Capehart in tonight for Joy Reid.
We begin THE REIDOUT tonight with America on edge. COVID once again threatening to up end our holiday travel plans as the pandemic marches into its third year. This time, the surge is coming from the highly transmissible omicron variant, now the dominant version of the coronavirus in the United States. Omicron accounted for 73 percent of new infections last week.
Due to the COVID spike, Broadway shows are canceling performances, Saturday Night Live dropped its live audience and musical guests. The Rockettes canceled the rest of their season. And amid this cancellation those long testing lines are back, snaking around multiple blocks in some places.
We`re also seeing a mini outbreak in Congress. Senators Elizabeth Warren and Cory Booker are among those who announce they have tested positive for COVID. New restrictions are in place in Europe, including another lockdown in the Netherlands. While closer to home here in Washington D.C., the city`s indoor mask mandate goes back into effect tomorrow morning along with a stricter vaccination mandate for government workers.
It`s the same now familiar feeling of dread harkening back to march of 2020 when fear and confusion left so many of us stunned. The variant is likely to strain U.S. hospitals in a few short weeks.
But unlike two years ago, a vaccine is now available that can largely protect people against the worst outcomes. President Biden will address the nation on COVID tomorrow and is expected to deliver a stark warning to those who remain unvaccinated.
Joining me now is the mayor of Washington D.C., Muriel Bowser. Mayor Bowser, welcome to THE REIDOUT. Thank you for being here.
MAYOR MURIEL BOWSER (D-WASHINGTON, D.C.): Thank you, Jonathan. Thanks for having me.
CAPEHART: So, the mask mandate goes back into tomorrow. What precipitated, what necessitated that decision by you to reinstate the mask mandate tomorrow at 6:00 A.M.?
BOWSER: Well, Jonathan, we`re looking at in the last week or so in the district we`ve seen our case numbers go up substantially in the hundreds of cases per day and that`s a significant number for us. We are seeing our vaccinations go up at the same time and our message to residents is to use layered mitigation strategies, but the first one being a safe and effective vaccine. So all people five years and older should be getting vaccinated if they haven`t been and getting a booster and now is the time to do exactly that.
CAPEHART: The other thing you announced today that I mentioned in the intro is that you now have a vaccine mandate for government workers, a vaccine mandate without a testing opt out. Why?
BOWSER: Well, we put a vaccine mandate, an absolute mandate in place for our health care workers and school personnel a couple of months ago, as well as everybody else in the government, except we were allowing a weekly test out. And we need to focus our testing resources for people who need a test and we know that vaccine works and we want all of our 37,000 employees to be fully vaccinated plus getting a booster.
So, our new mandate will include a full vaccination and booster to be in compliance. And we know that`s how we`re going to keep our employees available for work, out of the hospital and that`s very important for this winter surge.
CAPEHART: You know, we`ve seen resistance to vaccine mandates all around the country, particularly among -- especially municipal workers around the country. Are you finding -- getting any push back from city workers so far?
BOWSER: We`ve had some, but I have to tell you we`ve used progressive discipline to make sure that everybody has an opportunity to get the information and comply. I`ve said frequently, we went into this pandemic with a great team. All of our employees have performed heroically and want to make sure they continue to be on the team.
In the case of our schools, it`s very important all of our school personnel are fully vaccinated because our value in D.C. is to maintain public education and we`re going to do everything possible to see that that happens, but that includes keeping our school personnel safe.
So, we want them to get fully vaccinated. Our public safety workers, our firefighters, especially have been included with our health care mandate for some time.
CAPEHART: One of the things they`re also instituting is you`re distributing free rapid antigen tests for the first time at eight public libraries starting on Wednesday.
BOWSER: Exactly. We want folks to know that they fill sick at all, it`s very important that they stay home, isolate and get tested. And there are a variety of ways. We have walkup testing at our fire stations that have been, just an incredible part of our testing regime throughout this pandemic. We also have test yourself kits that are available at over 30 libraries in Washington D.C. It`s a PCR test. You do it yourself. You drop it off at the library and get your results in 1.5 five days.
And, similarly, we want to make as many rapid tests available to our residents as possible and we`ll start doing that on Wednesday, including making sure that 100,000 kits are distributed to our public schools and we`re going to use the first two days after winter break for families to pick up those tests and test before they come back to school.
CAPEHART: Mayor Bowser, last question for you, and that is this. With the re-imposition of the indoor mask mandate, at this point, do you foresee any possibility of having to go the extra step of shutting everything down in the way that you and the other mayors and governors did at the beginning of this pandemic?
BOWSER: One thing I learned about this virus, Jonathan, is that we have to evolve and we have to change our strategies to deal with the virus. I think the difference between March 2020 and now is that we have a safe and effective vaccine. And we know the differences between unvaccinated people and fully vaccinated people in terms of case rates and hospitalizations is stark.
So, our way through this pandemic, and even in this winter surge, is for everybody to get vaccinated, to test themselves, to isolate if they`re feeling sick, and that is the way we`re going to get through this virus. All of us are focused on being able to maintain our critical government services, especially education to take care of our vulnerable and for people to be able to go to work and to go to school.
So, we`re monitoring every day. We`ll make changes as necessary to keep Washingtonians safe.
CAPEHART: All right. Washington D.C. Mayor Muriel Bowser, thank you very, very much for coming to THE REIDOUT
Joining me now is Dr. Lipi Roy, Medical Director of COVID isolation and quarantine sites for the non-profit Housing Works in New York City. Dr. Roy, thank you very much for coming to THE REIDOUT.
The president is going to speak to the American people tomorrow about COVID. What do you want to hear from him?
DR. LIPI ROY, MSNBC MEDICAL CONTRIBUTOR: Good to be with you, Jonathan. This is what I want to hear all of my fellow health care workers, especially frontline health care worker want to hear. We want to hear about the need for vaccinations and particularly boosters amongst all people, those that are eligible and who are medically cleared to get it, which is really the majority of people. We need widespread testing and is fully accessible testing, not only at testing facilities but also at-home testing.
We also need mask mandates to come back. I`m telling everyone to wear these again, especially when you`re indoors in public spaces. This is what we need. And, again, the vaccines need to happen both locally and globally.
And I got to tell you, Jonathan, there is a strain on people like me, frontline health care workers, my fellow physicians as well as nurses, respiratory therapists, physical therapists, cafeteria workers, admin staff and all the many, many people needed to keep a hospital open, we are completely burning out emotionally and, physically, we`re exhausted.
And since the start of the pandemic, one in five health care workers has left the field. And right now in the United States, 20 percent of ICU beds are occupied by COVID infected patients according to the Department Health and Human Services.
And, remember, as more and more -- while most cases so far may be mild with the omicron variant, and we don`t know that for a fact yet, if they are mild, if it`s rising exponentially, which this omicron variant is, it means that more and more people will get infected and a good percentage of those people will require hospitalization, which means that more and more health care workers in the hospitals will get exposed and get infected.
And that means they`ll have to go home, which means existing hospital staff will be short staffed, and so the vicious cycle continues.
This is why we need the president to really come down strongly on vaccines and I would say vaccine mandates, otherwise how are going to get the other 40 percent vaccinated? We have to all be in this together, Jonathan.
And yet, Dr. Roy, there is a significant portion of our population that is just not down with the program. Have a listen to Ron DeSantis and Sarah Palin.
(BEGIN VIDEO CLIP)
MARIA BARTIROMO, FOX NEWS HOST: Have you gotten the booster?
GOV. RON DESANTIS (R-FL): So, I`ve done whatever I did the normal shot and, you know, that at the end of the day is people`s individual decisions about what they want to do.
FMR. GOV. SARAH PALIN (R-AK): It will be over my dead body that I`ll have to get a shot. I will not yield. I won`t do it, and they better not touch my kids, either.
(END VIDEO CLIP)
CAPEHART: Dr. Roy, just explain how unhelpful and dangerous that sentiment is.
ROY: Yes, I`ll go a step further, Jonathan, unhelpful is not the word. It is flat-out dangerous and it`s infuriating for health care workers like me. I mean, doctors and nurses, we go into this field because we truly want to save lives and we want to improve the quality of lives.
And I don`t need to tell you, Jonathan, that, unfortunately, this COVID-19 public health crisis has been politicized from the very beginning and much to the detriment of good men and women and children in this country.
I did all of my medical training in the south, in Louisiana and North Carolina, not once did I ask or give a damn about somebody`s political or religious affiliation because it doesn`t impact my clinical judgment, which is always rooted in science. That`s what needs to happen.
So, when political figures, influencers in the political realm make it political, make something that`s a medical and public health issue political, it literally jeopardizes the lives of the people that we`re trying to take care of and in turn jeopardizes our lives.
It`s a vicious cycle and it`s just -- we need to put an end to it because this virus, SARS-Cov-2 doesn`t give a damn about a person`s political or religious or any other affiliation. It`s going to attack wherever it sees an opportunity, and it clearly has been because it continues to replicate, and mutate and infect. So, we need to step up Jonathan and do the right thing.
CAPEHART: Dr. Lipi Roy, thank you very much for coming to THE REIDOUT.
Up next on THE REIDOUT after we get past the finger pointing and recrimination between Senator Joe Manchin and the White House, what, if anything, can be salvaged of the Biden agenda?
Also, as the New York attorney general turns up the heat on Donald Trump, he responds, as he always does when he`s cornered, he`s suing.
Plus, the jury gets the case of former Minnesota Police Officer Kim Potter who shot and killed Daunte Wright claiming she mistook her gun for taser.
And Democrats can point to several successes in 2021. We`re going to talk about one very significant accomplishment, judges.
THE REIDOUT continues after this.
CAPEHART: Senator Joe Manchin is doubling down on his startling admission yesterday that he`s done with the Build Back Better Bill. In a radio interview today, he accused Democrats of badgering him.
(BEGIN VIDEO CLIP)
SEN. JOE MANCHIN (D-WV) (voice over): They figure surely to God we can move one person, surely we can badger and beat one person up, surely we can get enough protesters to make that person uncomfortable enough, they`ll just say, okay, I`ll vote for anything, just quit. But you know me. Always willing to work and listen and try. I just got to wit`s end and they know the real reason what happened, they won`t tell you and I`m not going to because --
UNIDENTIFIED MALE: Wait, wait, wait, wait, wait. You would say, wait, wait, you said you --- there is -- they know the real reason. They`re not going to tell us. You`re not going to tell us? What do you mean? What`s the real --
MANCHIN: The bottom line is there was basically, and it`s staff. It`s staff driven. I understand staff, it`s not the president, it`s the staff. And they drove some things and they put some things out that were absolutely inexcusable and they know what it is. And that`s it.
(END VIDEO CLIP)
CAPEHART: Yesterday, in a statement approved by President Biden, White House Press Secretary Jen Psaki said that Manchin`s comments represent a sudden and inexplicable reversal in his position and a breach of his commitments to the president and the senator`s colleagues in the House and Senate. However, she was far more muted in today`s press briefing saying that she can`t speak for Senator Manchin and that the White House remains focused on what is next.
Senator Manchin has said he`s open to new programs that are fully funded over ten years. And The Washington Post reports that before negotiations broke down, Senator Manchin told the White House that he would accept a $1.8 trillion package that included universal pre-K for ten years, an expansion of Obamacare and hundreds of billions of dollars to combat climate change. But that plan didn`t include a child tax credit, an omission difficult for the White House to accept in the high-stakes negotiations.
And get this, NBC News has now confirmed reporting that Senator Manchin has actually raised concerns to fellow Democratic senators that parents would use their child tax credit payments to buy drugs. In a statement to NBC, Senator Manchin`s spokesperson said he has made clear that he supports the child tax credit and believes the money should be targeted to those who need it most.
Joining me now, NBC News Capitol Hill Reporter Julie Tsirkin in Charleston, West Virginia, and Michelle Goldberg, "New York Times" columnist and MSNBC contributor.
Thank you both very much for coming to THE REIDOUT.
Julie, you have been on the ground there in Charleston, West Virginia, all day.
I want to play for our audience some of the sound that you got during your reporting, and I will talk to you about it on the other side.
(BEGIN VIDEO CLIP)
ANGI KERNS, WEST VIRGINIA RESIDENT: The rest of the country is getting to see us and to know that Joe Manchin doesn`t speak for us and that he doesn`t represent us.
If he knew anything about what was going on, on the ground in his state, if he actually talked to any coal family in this state, he would understand that they are already hurting, and things can`t get much worse.
DAVID HENDRICKSON, WEST VIRGINIA RESIDENT: I know people are angry at him right now.
But you got to stand up for your principles. And for one time in our country, we have got an individual out there that`s lightning it up and telling people, I`m not going to put up with all the stuff.
And I will tell you, Joe`s doing a great job. And I will tell you, he should be commended, as opposed to ridiculed.
(END VIDEO CLIP)
CAPEHART: And so, Julie, we got a pro-Manchin and an anti-Manchin comment there.
But you have been there all day. Which point of view was more prevalent as you talk to people there?
JULIE TSIRKIN, NBC NEWS CAPITOL HILL REPORTER: Yes, Jonathan, look, the interesting thing about West Virginia is that the state itself is small. There`s less than two million people living here. And the politics have shifted in the last couple of decades.
You had a pretty blue state in the `90s, for example, and, suddenly, it had this shift, where the last four presidents that it elected were Republicans, Donald Trump winning this state by 40 points in 2016 and 30 points in 2020.
And, look, the politics on the ground reflect that. I had people coming up to me saying, "We`re with Joe," and they`re not talking about President Biden. They`re talking about Joe Manchin. And then I had on the flip side people like Angi, those kinds of moms that you heard from who want the child care tax credit extended, who need these programs to function.
I spoke with other women who told me that they are seniors. They rely on prescription drugs. They rely on fair pricing of those items. But I also had people who came up to me and said: Listen, I have to work a bunch of jobs, "You see the prices of gas,you see the prices of lumber rising in our state," echoing these comments that Joe Manchin has made when he said why he`s against this bill.
And they`re saying that they need Joe Manchin to basically press the pause button, like Joe Manchin said himself, take a strategic pause, wait it out, wait for inflation to cool.
But, at the same time, you do have those women like the ones you heard from today really quite angry. And just before I came on with you, there was a vigil that was held right outside his office here in Charleston, with a bunch of folks gathered, protesting the senator and demanding that he stand up for what`s right for them, and that`s Build Back Better.
CAPEHART: And, Michelle, yesterday -- well, the reaction to Senator Manchin, what Senator Manchin had to say was swift, and it was harsh. And you had progressives out there immediately saying, we told you all this was going to happen.
Take a look. You had AOC, Congresswoman Ocasio-Cortez of New York, tweeting out: "When a handful of us in the House warned this would happen, the Dem leaders gave Manchin everything he wanted, first by moving BIF BBB, instead of passing together. Many ridiculed our position."
And then you can also see Congresswoman Ilhan Omar, who says: "Let`s be clear Manchin`s excuse is bull pucky." That`s not what she wrote. But that`s what I`m saying. "This is exactly what we warned would happen if we separated Build Back Better from infrastructure."
I mean, it`s hard to say that they`re that they`re wrong. But where do we go from here? Where do you think?
MICHELLE GOLDBERG, MSNBC CONTRIBUTOR: Well, yes, I mean, they`re absolutely right to feel betrayed.
I still think that the politics being what they were in the aftermath of the losses in Virginia, it made sense. The White House needed a win. I understand why they just wanted to pass the bipartisan infrastructure bill to show that they could do something.
But, yes, absolutely, this does confirm the progressives` worst fears about what Joe Manchin would do.
Look, I think that Joe Manchin has all of the leverage here. It`s not fair. It`s not right. It`s not really democratic, given the small size of the state that he represents, but it is what it is. And so there`s been reporting that he made an offer to the White House for a bill that included fewer programs funded for longer.
And there`s, actually, I think, a substantive argument to do fewer programs funded for longer, although I think it should include the child tax credit, rather than some of the programs that he prefers. But at this point, I think that, even though it might be hard to get for -- some progressives in the House on board, because they have every reason to distrust that this offer is sincere or that Joe Manchin will keep his word, that seems to be the best path forward, right?
I mean, trying for something is better than ending up with nothing.
Michelle, I mentioned the fact that we have confirmed reporting that Senator Manchin said to colleagues that he`s not down with the child tax credit because some folks use it to buy drugs.
That`s not the only thing he said. He said, apparently, privately to colleagues said he`s worried people in this state would use paid leave to go hunting.
Go ahead. Go ahead.
GOLDBERG: Look, OK, so, on the one hand, I think Joe Manchin is in fact kind of more in tune with the ethos of his state, obviously, than coastal pundits like me.
At the same time, there`s something profoundly out of touch about a man who drives a Maserati acting as if people who get -- and there`s already been studies of what people who are -- of what people are spending this money on. They`re spending it on the basics. They`re spending it on food. They`re spending it on housing. They`re spending it on utilities, right?
I mean, the idea that people who are trying to raise children in this economic environment, and particularly with his inflation, that an extra $300 or $600 a month is such a windfall, that they`re going to go out and become drug addicts, or that 14 weeks or 12 weeks of paid leave is such a luxury that people are going to go on hunting vacations.
I mean, he really is, I think, out of touch with what it is like to be a person raising children if you`re not a millionaire in America right now.
CAPEHART: Julie, we have got -- we have got a minute left, but I got to play this clip of my interview with Congresswoman Cori Bush yesterday and her reaction when I asked her the possibility of Build Back Better moving next year.
Watch. And real quickly, on the other side, we will talk about it.
(BEGIN VIDEO CLIP)
CAPEHART: How much hope do you have that, at least in the first three months of 2022, that Build Back Better can be negotiated and passed and become law?
REP. CORI BUSH (D-MO): When I leave this interview, I`m going to the interwebs, and I`m going to be looking for the phone number to the ghosts of Christmas past, present and future or the e-mail address to see if they can go and see about Scrooge on Christmas Eve.
I`m sorry, not Scrooge, Senator Manchin.
CAPEHART: I know who you`re talking about.
(END VIDEO CLIP)
CAPEHART: So, Julie, real fast, the likelihood Build Back Better getting a vote next year, either in whole or in or in pieces? Likely?
TSIRKIN: Yes, look, it depends on who you talk to, right?
One important thing that Michelle said is something that Speaker Pelosi actually floated earlier in the fall, this idea of doing a fewer programs for a longer period of time. It wasn`t just a Joe Manchin idea.
So that idea is very much still alive and well. And my sources told me that earlier in the week, even before Senator Manchin came out on this, that it could happen in March or April.
But, look, really quick, Cori Bush, she also went on to say that she was part of the six-or-so-member progressive faction in the House who said all along, if they decouple by partisan infrastructure from Build Back Better, they`re going to lose all their leverage, and she`s saying she was right here.
CAPEHART: NBC`s Julie Tsirkin and Michelle Goldberg, thank you both very much for coming to THE REIDOUT.
And be sure to join Rachel Maddow tonight for more on the White House showdown with Senator Manchin. Rachel will be joined by Senator Bernie Sanders and Congresswoman Pramila Jayapal.
And still ahead on THE REIDOUT: a new legal volley from Trump`s attorneys, as he tries to shut down New York`s long-running investigations into his shady business practices. The latest one targets New York state Attorney General Letitia James specifically.
We will be right back.
CAPEHART: The disgraced former president did what he always does when the walls are closing in. He filed a lawsuit, this time against New York Attorney General Letitia James, asking for a court order to halt her civil investigation into his company`s business practices.
The suit claims that the investigation is guided by -- quote -- "political animus" and calls it a -- quote, unquote -- "frivolous witch-hunt."
We have heard that language before.
Attorney General James has called for the former president to answer questions under oath next month. Trump`s lawsuit also seeks to bar James from participating in a separate criminal investigation conducted by the Manhattan district attorney.
James responded to the suit, noting that the former president has continually sought to delay the investigation, adding: "To be clear, neither Mr. Trump nor the Trump Organization get to dictate if and where they will answer for their actions. No one is above the law, not even someone with the name Trump."
Joining me now, Barbara McQuade, former U.S. attorney and MSNBC legal analyst, and Tim O`Brien, Bloomberg Opinion senior columnist.
Thank you both very much for coming to THE REIDOUT.
Tim, I will start with you.
The idea of Donald Trump suing the attorney general for the state of New York, this is out of the Trump playbook, long-running Trump playbook, isn`t it?
TIM O`BRIEN, EXECUTIVE EDITOR, BLOOMBERG OPINION: It is.
And it`s really -- I wouldn`t call it a lawsuit. I`d call it a Hail Mary pass. I think the thing that is front of mind for Donald Trump right now is that he has to sit for a deposition on January 7.
And Donald Trump is every lawyer`s nightmare when it comes to being deposed under oath, because he`s an inveterate liar. He exaggerates. He doesn`t stick to a script. He views depositions as performance art. And it invariably gets him in trouble.
And the other thing is, the last time he had a major government investigation at his doorstep was 50 years ago, when the Department of Justice investigated the Trump family for racial discrimination -- racism and discrimination in their housing projects in Brooklyn.
O`BRIEN: All of the intervening decade amounted to Donald Trump weaponizing lawsuits in private disputes against business competitors for the most part.
And public prosecutors march to a very different drummer. Barb knows this far better than I do. And they don`t worry about the same kind of reputational or media issues that I think private litigants care about. And Tish James wasted very little time today saying Donald Trump can inveigh all he wants and file whatever lawsuit he wants, but he`s not above the law.
His constitutional rights don`t include breaking the law.
And, Barbara, pick up on what Tim is talking about. I`m wondering how -- after listening to Tim, how likely is it that this Trump lawsuit against the attorney general for the state of New York actually might get thrown out?
BARBARA MCQUADE, MSNBC LEGAL ANALYST: Likelihood, 100 percent.
MCQUADE: It`s rare, Jonathan, that that is the answer to a question. So often, we have to give it all kinds of conditions. Well, maybe it`s likely, this possibly.
Tim used the metaphor it`s a Hail Mary.
CAPEHART: That`s what I was expecting, Barbara.
MCQUADE: Yes, Tim used the metaphor it`s a Hail Mary.
A Hail Mary at least has some slim chance of success to win the game at the last minute. This has zero chance. This is a clear violation of the separation of powers between the executive branch on the one hand, the attorney general`s office, and the judiciary on the other. They will not interfere in cur investigations.
Now, if there is some charge filed, complaint filed, then Donald Trump can defend himself. And he can do that in court. He can try to poke holes in her claims. All of those kinds of things will be available to him.
But to cease investigating because of what Trump describes as ill motives and political motives is just a total nonstarter. Someone might despise Donald Trump, but if he committed crimes or if he violated the laws of the state of New York, it doesn`t matter. He`s still going to have to answer to those either crimes or, in this case, civil claims.
Let`s have a listen to what Michael Cohen said in congressional testimony in 2019, basically, about what the attorney general is looking into. Watch.
(BEGIN VIDEO CLIP)
MICHAEL COHEN, FORMER ATTORNEY/FIXER FOR DONALD TRUMP: It was my experience Mr. Trump inflated his total assets when it`s served his purposes, such as trying to be listed amongst the wealthiest people in "Forbes," and deflated his assets to reduce his real estate taxes.
(END VIDEO CLIP)
CAPEHART: And so, Tim, oh, that`s a witch-hunt; that`s part of the witch- hunt?
O`BRIEN: No, it`s actually completely consistent with the fact pattern over decades.
Donald Trump has routinely inflated the value of everything he owns. He`s done it with his bankers. He`s done it with the media. He`s done it with business competitors. Donald Trump does that.
The issue isn`t whether or not he did it. The issue is whether or not it amounts to a crime, because he knowingly tried to mislead bankers, investors and other lenders about the true value of his assets in order to get loans from them.
And then he also misled public authorities in order to lower his tax bill. And that`s what both Tish James and Cy Vance, the Manhattan district attorney`s office, is dig -- are digging into right now. These are parallel investigations. They`re -- they have been following the same tracks.
The idea that Trump in this lawsuit is going to forbid the New York state attorney general from cooperating with the Manhattan district attorney, which they have already been doing for months at this point -- this is very late in the game to claim that....
O`BRIEN: ... and because the suit doesn`t have merit is belied by the fact that the Manhattan DA is looking at exactly the same thing.
CAPEHART: Barbara, I have got to ask you about this news that broke in "The Washington Post" that the January 6 Committee is seeking information from Republican Congresswoman Scott -- Congressman Scott Perry of Pennsylvania about communications with Trump White House -- White House officials.
Now, they`re seeking this information voluntarily. This is not a subpoena. But this is a -- to my mind, a rather significant move by the committee to call in one of their fellow members of Congress to talk about what happened on January 6.
MCQUADE: It is an extraordinary request, Jonathan, as you point out, a fellow member of Congress.
But they`re not calling him in his capacity as a member of Congress. They`re calling them as in his capacity as witness to the January 6 events. There has been reporting and testimony already that he was the conduit between Donald Trump and Jeffrey Clark at the Justice Department who wrote out that draft letter to Georgia explaining the road map to throwing out the electors and substituting in the legislators` choice.
So, he seems to be someone who has a lot of information. What will be interesting to see is, if he does not voluntarily comply with this request, will they take it up a notch and serve him with a subpoena?
I think we have reached the point where these niceties and courtesies really need to be disregarded, in the interests of what`s in the best interests of our country.
CAPEHART: I also point out that Scott Perry is also the person who compiled the dossier alleging to show more votes than voters in Pennsylvania.
But I`m with you, Barbara. I think -- I think subpoenas are coming for members of Congress.
Barbara McQuade, Tim O`Brien, thank you both very much for coming to THE REIDOUT.
And still ahead: The jury begins deliberations in the trial of former Minnesota police officer Kim Potter, who claims she mistook her gun for a Taser when she killed Daunte Wright.
We will bring you that and the latest next.
CAPEHART: Jury deliberations have begun in the trial of former Minnesota police officer Kim Potter.
Potter is charged with two counts of manslaughter in the shooting death of 20-year-old Daunte Wright during a traffic stop in April. She claims to have mistakenly used her gun, instead of her Taser, when he -- when she shot Wright in the chest.
The prosecution asserted in its closing arguments, that mistake warrants conviction.
(BEGIN VIDEO CLIP)
ERIN ELDRIDGE, MINNESOTA ASSISTANT ATTORNEY GENERAL: She carried it on the right side every day for 26 years.
And that`s the weapon she used. Members of the jury, that`s culpable negligence, and that`s reckless handling of a firearm resulting in death. This case is about the defendant`s rash and reckless conduct.
(END VIDEO CLIP)
CAPEHART: Attorneys for Potter trying to get the jury to believe that Daunte Wright was ultimately to blame for his own death.
(BEGIN VIDEO CLIP)
EARL GRAY, ATTORNEY FOR KIM POTTER: That`s what caused this whole incident.
If he would have gone with the officers, been handcuffed, go to the squad car, go take a ride downtown, and it`s over.
Everything after that, the officers did, they did to try and restrain him, try and stop him from leaving.
(END VIDEO CLIP)
CAPEHART: Joining me now is Paul Butler, former federal prosecutor and a Georgetown law professor.
Paul, this whole argument that we always hear, if he only complied, he wouldn`t have been responsible for his own death, that was the same argument that was used in the Derek Chauvin trial.
PAUL BUTLER, FORMER FEDERAL PROSECUTOR: It`s the typical blame the victim, especially when the victim is an African-American man.
But, Jonathan, to convict Ms. Potter of manslaughter, prosecutors don`t have to prove that she intended to kill Daunte Wright, but only that she was reckless or negligent.
When Ms. Potter shot Daunte Wright, she didn`t try to help him as he lay dying. Instead, she burst into tears and said, "I`m going to go to prison."
Well, now both the prosecution and the defense agree that Potter made a mistake, but the defense says a mistake is not a crime.
CAPEHART: So, having watched the trial, that -- having watched the trial, Paul, which side gave the better argument? Who do you think is going to prevail, just by the arguments that were made in the trial?
BUTLER: You know, Jonathan, this is a really tough case.
The prosecutors have video demonstrating that, even as Ms. Potter was in tears after she shot Mr. Wright, she still had the presence of mind to ask if someone from the police union could come to help her.
So the jurors may have questions about her credibility, about whether any reasonable person could actually mistake a Taser for a real gun? And if they did, why wouldn`t that be negligent? Tasers are designed to look extremely different from guns. They`re much bigger. They have a different triggering mechanism.
And Officer Potter kept her trigger -- kept the Taser in one pocket and the gun in another pocket. And so recklessness means that she knew that there was a big risk that she could hurt someone, and she acted anyway.
The jurors may have difficulty with that charge. But, for manslaughter two, which basically means that he was negligent, it`s hard to see that there won`t be a conviction. There`s always the concern when jurors aren`t diverse. And this jury only has one African-American person on it.
And, again, sometimes, jurors evaluate police officers` testimony differently. It doesn`t mean that white jurors can`t be fair, but jurors are told to use their life experiences. And, often, white jurors have different kinds of life experiences with police officers than African- American jurors.
And the makeup of the jury, nine white, two Asian, one black. Gender makeup is split down the middle, six men, six women.
Paul, the jury deliberations have ended for the evening. But the jury is sequestered. And I`m just wondering, given that we are hurtling to the Christmas holiday, how likely is it that we`re -- we could get a verdict before Christmas Eve?
BUTLER: Jonathan, I have no idea what the verdict will be. I can say with certainty that there will be a verdict before Christmas and probably Christmas Eve, because jurors don`t like to deliberate over the holidays.
They did ask a really interesting question today about a defense witness who actually the prosecution scored huge points with. He was a use of force expert. And he interviewed Mr. Potter before the trial. And she told him that she could not remember why she had decided to use her Taser that day.
She also told Mr. Miller, "I don`t make mistakes."
And that directly robots the defense that the shooting was a mistake. Jonathan, at trial, Ms. Potter told the jury she can`t remember that interview with Mr. Miller.
So the jurors may -- the jury question may mean that some jurors have concerns about former Officer Potter`s credibility.
CAPEHART: Right. Mr. Miller is Dr. Laurence Miller, who`s a psychology expert retained by the defense.
And the question from the jury was, what was the date of the Potter interview with Dr. Miller?
Paul Butler, thank you very much for coming back to THE REIDOUT.
Up next: The Biden administration is filling judicial vacancies at a blistering pace, tying -- trying to counter Trump`s conservative judges with judges from more diverse backgrounds. Why this is so important -- next on THE REIDOUT.
Stay with us.
CAPEHART: It`s been a challenging weekend for President Biden, to say the least, but it`s not all gloom and doom.
On Saturday, the Senate confirmed his 40th federal judicial nominee, the most since Ronald Reagan 40 years ago. It`s been a top priority for the Biden administration, which has nominated a slate of diverse candidates.
According to the American Constitution Society, about 75 percent of those picks are women, and two-thirds are people of color. In contrast, the former president`s judicial nominees were 84 percent white and 76 percent men.
President Biden has nominated the first Muslim American federal judge, first out lesbian judge on any federal circuit court, and the first Korean American woman on a federal appeals court.
Joining me now, Claire Bond Potter, professor of history at The New School for Social Research.
Professor Potter, thank you very much for being here.
So, numbers-wise, yes, this is this is pretty big, and it`s historic, and also in terms of diversity, but talk about why President Biden, in particular, getting this slate of judges through is so important.
CLAIRE BOND POTTER, THE NEW SCHOOL FOR SOCIAL RESEARCH: So, thanks for having me, Jonathan.
It`s important to impart because Joe Biden promised that he would govern in -- to an America that was diverse. And he`s had a lot of trouble getting legislation through, but getting 40 judges through that are so diverse not only really keeps that promise to make the judiciary as diverse as America is, but it also ensures that, as legislation is challenged, as various aspects of our democratic process are challenged, there will be people in place to make sure that the Constitution is upheld.
CAPEHART: How concerned -- so this is great news. And I read the news, and I thought, OK, this is this is really good.
But he still has three more years, and he still has a recalcitrant Republican opposition. How concerned are you that the pace of the first year is going to slow down significantly for the rest of his term?
POTTER: Well, I`m very concerned about it, because it only takes one senator from a state to actually stop a nomination from going through.
So, for the states that he has had trouble getting his nominations confirmed are exactly those states where there`s at least one Republican senator. And, of course, the judiciary has become incredibly partisan. It really began during Ronald Reagan`s presidency, when Robert Bork was nominated, and liberals went after Robert Bork as really a person who would undo all of the liberal legislation of the 1960s and 1970s.
So I think one of the things that is actually important about Biden`s achievement is, it`s a lot harder to get judges through than it ever was. That being said, it should be a real goad to the Democratic base to get out there and vote and organize people for 2022, so that Biden can continue to remake the judiciary.
CAPEHART: And Democrats -- judges is -- are a thing -- filling the judiciary with judges is a thing on the right.
But for Democrats, they couldn`t care less really about judges, but they need to.
We only have -- we have less than 90 seconds. But given that Congress is so gridlocked and can`t get anything done, isn`t there also a concern that we`re moving legislation -- legislating away from the legislative branch, and putting it all on judges to figure out all the fights?
POTTER: Of course, that`s a concern.
But I would have to say, Jonathan, that has been happening since World War II. Every piece of important civil rights -- any civil right that should have been legislation actually moved through the courts. And if you look at, say, Brown v. Board of Education, Griswold v. Connecticut, which made birth control illegal around the United States, Roe v. Wade, which is now again under threat, Loving v. Virginia, which made it possible for people to marry interracially, those all went through the courts.
So I think it is not a recent event that important aspects of democracy and a democratic society do rely on the courts. I think that`s always been true.
CAPEHART: And one more case I would throw out there, Obergefell, which made my marriage to my husband, Nick, legal in the United States.
Thank you very much, Claire Bond Potter, for coming to THE REIDOUT.
And that`s tonight`s REIDOUT for Monday evening.
Joy is back tomorrow night.
"ALL IN WITH CHRIS HAYES" starts right now.