Updated
Summary
After revelations Congress weighing in getting former President Trump and Mike Pence to testify as some conservative lawyers and others saying Trump could be indicted over January 6th insurrection plot. Growing criticism of the Justice Department`s approach to the insurrection probe. Former Manhattan Executive Assistant District Attorney Adam Kaufmann, and president and CEO of Leadership Conference on Civil and Human Rights, Maya Wiley, join THE BEAT with Ari Melber to talk about the DOJ that is waiting on the House insurrection over Trump probe. Steve Bannon`s felony trial starts on Monday as the judge rejects the delay request. Michelle Mello, professor of law and health policy at Stanford joins Ari Melber to talk about the Biden administration`s act to protect emergency abortions and emergency medicine even after Roe v. Wade fell.
Transcript
NICOLLE WALLACE, MSNBC HOST: Thank you so much for letting us into your homes during these extraordinary times. We are grateful. THE BEAT WITH ARI MELBER starts right now.
Hi, Ari.
ARI MELBER, MSNBC HOST: Hi, Nicolle. Nice to see you. Welcome to THE BEAT. I am Ari Melber.
Tonight`s news begins with the question that swirled around this entire exercise of these significant insurrection hearings.
When are they going to directly confront Donald Trump?
Well, the answer is complicated and whatever one thinks of that particular president, the fact is Congress does not typically question or subpoena presidents. This ain`t England. The legislature does not question the president the way you would see in those sort of sessions that they hold with the legislature.
But tonight the news is that might change. There`s solid reporting that the House is eyeing Trump himself as the January 6th Committee is meeting behind closed doors, weighing what you see here, the certainly costly potential clash over trying to make Trump testify as well as pursuing an interview with Pence.
Now going to Trump would surely take a subpoena and then a court battle over it. “The Wall Street Journal” reporting all of this. And Trump has spent his whole career resisting this kind of moves. We know that. Sometimes he prevails. And sometimes he loses. There have been court losses that forced him into the taped deposition that you see right here on your screen. That only came after he was forced into that situation. That was also while he was in business.
The committee has also been mostly using that same taped model, what looks like a deposition, for these witnesses. So they`re considering trying to make Trump join the group. He was also recently held in contempt by the New York state attorney general over related clashes in that probe, and they now on the Trump side are trying to get out from under that and get out of what was a daily fine in contempt.
So I`m telling you, there are precedents here that could work to compel testimony even against a former president by this committee. The same story as I mentioned, though, as the Congress is mulling a written interview with Pence, you will notice the difference there between written interview and subpoena. One suggests a kind of cooperation, trusting Pence to a degree, and the other, a legal clash expected, that you`d have to subpoena the guy there who was president.
As recently as last month, this same panel you may recall suggested it wasn`t pursuing Trump and Pence for this, so this is a public shift and may reflect the change about how much evidence now does point towards White House activities and not simply the physical storming of the Congress that day.
There`s also possibly further heat on Trump as the key subject in what we have been told will be next week`s primetime hearing as Congresswoman Cheney laid out.
(BEGIN VIDEO CLIP)
REP. LIZ CHENEY (R-WY): In our final hearing you will hear a moment by moment account of the hours` long attack from more than half a dozen White House staff. There`s no doubt that President Trump was well aware of the violence as it developed.
Rep. Elaine Luria (D-VA): If we`re going to talk about dereliction of duty, what were his duties as the president of the United States to ensure that the laws are faithfully executed?
(END VIDEO CLIP)
MELBER: Now that failure is something the whole country knows about. People watched that day when Trump gave the speech and then violent thugs marched through the Capitol. The president stood by silent and weak. He did not speak out, let alone take actions to protect the seat of government.
That dereliction is a matter of failed leadership, not criminal law, to be clear, and these hearings have covered a lot of ground, from bizarre unhinged meltdowns to a president throwing dishes with ketchup dripping down the wall, leaving some Americans reflecting on how sloppy it must have been whenever Trump came through dripping. Drip, drip.
Now, those details admittedly they offered some color. They did get people talking, and that happens by the way in real trials, too. You have to prove the elements of the crime, but over the course of the trial you tell a story and you try to appeal to the jurors with true factual details, some of which are super important and some which are just memorable. Drip, drip.
But the hard evidence here is of something much more grave. A multipronged coup that looks to have been proofed up with a lot of damning and significant testimony, not from critics, not from witnesses who were, you know, in a different city, not from people in Washington, D.C. who heard this or that. No, people in the White House at the late-night meeting, at the lawyer clash, at the time when they tried to take people who were more unhinged than Giuliani and turn them into special counsels with military backing.
[18:05:06]
People who were in those rooms. And what have they told the nation? That Trump was told the crowd was armed before he sent them to the Capitol. That Trump hid the march plan so that he might better catch those police by surprise. A president plotting against his own federal law enforcement and his own Congress so that they could be beaten by Trump fans.
The evidence also showing that Trump welcomed illegal plots wherever they were pitched, elector fraud, a DOJ coup, and even that military action that was the subject of the last hearing. And that Trump, according to his own aides and lawyers, only would back away from some of those plans when they looked like they would not work or, as one witness memorably put it, that the DOJ plan would end up being bad PR.
That is what pushed Trump away from it, not that it was, also according to the same lawyers, illegal. It`s a damning portrait and one that DOJ now does appear to be facing a little bit more, however slowly.
So let`s bring in our experts. Maya Wiley is president and CEO of the Leadership Conference on Civil and Human Rights and a longtime legal analyst for us, and former Watergate prosecutor Nick Akerman is here.
Welcome to both of you.
Maya, I put it to you. What does it mean, first, the news that they`re considering subpoenaing Trump? I note the road that would take. And what you see in the wider story here, not about people`s opinion of Donald Trump, not whether they assumed or figured he`d be in on all of it, that ain`t good enough, but that the committee has really put forward a lot of evidence that he did the things I just mentioned?
MAYA WILEY, PRESIDENT AND CEO, LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS: Yes, Ari, look, I think the question is, how can the committee not subpoena Donald Trump? And the reason I put it that way is because of all the evidence they`ve uncovered, is because they have — this is not just evidence of whether Donald Trump benefitted or whether people close to Donald Trump took actions, took steps to interfere with the electoral vote counts to get extremists and white supremacists known to be armed at a rally, that here we have a president who`s now been put front and center and directly in the action.
So once we have that, including, you know, and explosively the person who was one of the organizers of Stop the Steal, the big lie, that was also the generator of this violence, in a text, saying, look, the president is supposed to order us to the Capitol in a speech. What do we know that Donald Trump did in that speech? Told folks to go to the Capitol. It puts them right directly in the action. How do you not ask it?
MELBER: Nick?
NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: I totally agree with Maya. It`s time for Donald Trump to put up or shut up. And it`s also time for Congress to flex its muscles. They have every right to subpoena him, get him into that committee room. They should not be using the courts to do this. They should be using their own inherent powers of contempt.
If he doesn`t show up with the subpoena, they should hold him in contempt. They should send the sergeant-at-arms out to pick him up, bring him into the committee room, put him at the table and start asking him questions about all of these areas, including his knowledge about knowing that his supporters had weapons with them that day at the Capitol.
There is no reason not to do that. Congress has that power. The Supreme Court upheld that power back in the Teapot Dome scandal during President Harding scandal. And there is no reason why they should waste their time going through the courts, getting DOJ to hold Donald Trump in contempt, trying to get a court to force him into the Congress — they should get the sergeant-at-arms to bring him in.
MELBER: It`s possible. I smile a little because you`re more out there than where most lawyers are, which is you would do this particularly with a former president through the courts, and your plan or idea would then involve the sergeant-at-arms being pitted against the current Secret Service who are doing the physical protection of the president, former president, so it almost sounds like a “24” episode.
But I appreciate you have precedent to cite there of why you could do it. When you get to those physical issues, what would it look like to arrest a former president whoever it might be? How close are we getting to this? I do want to note that with the evidence mounting more conservative and even Reagan-era DOJ lawyers have been breaking with Trump.
(BEGIN VIDEO CLIP)
ALBERTO GONZALES, FORMER WHITE HOUSE COUNSEL TO PRESIDENT GEORGE W. BUSH: I think one might make the argument that there`s certainly the beginnings of a case for seditious conspiracy, obstruction of Congress.
MICK MULVANEY, FORMER ACTING WHITE HOUSE CHIEF OF STAFF: And what you`re seeing I think is folks, especially in my party, are looking at Donald Trump as damaged and something that might way down the party going into the midterms and into 2024.
[18:10:05]
TY COBB, FORMER TRUMP WHITE HOUSE LAWYER: Yes, I think that the president certainly deserves some blame for what happened. He charged up the crowd.
AIDAN MCLAUGHLIN, MEDIAITE: Do you expect that we`re going to see Trump prosecuted by the Justice Department on any of these charges?
ANDREW MCCARTHY, FORMER FEDERAL PROSECUTOR: I do now, yes.
(END VIDEO CLIP)
MELBER: The last voice there, Andrew McCarthy, the Reagan era prosecutor I mentioned, telling Mediaite he sees this as it`s coming. Now there`s a new piece here that is not just media or commentary but has several conservative lawyers with the headline that you see here, the DOJ must prosecute Trump. They say that he was the principal actor in nearly all of the phases of this conspiracy, the use of violence on the Hill, doing so over vehement objections raised at every turn, Donald Ayer, Stuart Gerson, and Dennis Aftergut.
Maya, there`s the cut and dry question of whether the crime can be proven. There`s the wider question of how you deal with any former president, and it`s a big one simply because it hasn`t happened in this country, and then there`s the next concentric circle of, is this on the table in Washington, which you and I have discussed in so many ways, is a town that acts last, thinks last, looks around with a finger in the air to understand what`s possible, and has a lot of people, even people inside what is a Democratic appointed Justice Department who say, well, they can`t be the first mover?
On any of those rings, do you see this as something that substantively, put the politics out of it, substantively can and should happen, and that there`s a shift possible in Washington, or you don`t hear it?
WILEY: Look, I think it can happen. I think we`re hearing the rumblings possibly of a shift. I also think it should happen. And the reason I think it should happen is, at this stage, with all of the evidence now public, not all the evidence there is, but all the evidence that has been made public of Donald Trump looking for anyone who will find him a path and it doesn`t matter what the path is, including one that stokes and incites an armed group of people to the Capitol, that will get him the opportunity to stay in the White House despite being told directly that he lost by his own campaign.
That this is the action that must — must — see Department of Justice investigation at a minimum, because to not investigate what is clear evidence of possible crimes is essentially the same thing as saying the president, any president, is above the law — is above the law. And none of us I think in this nation would sit here before any investigative body and say, well, if I run for president and then I break the law, that means I can`t be prosecuted for the same thing I would be prosecuted for if I wasn`t president? That just doesn`t make sense to people, and it shouldn`t, quite frankly.
MELBER: Nick?
AKERMAN: Yes, I think Maya`s absolutely right. There`s more than enough evidence here for a thorough investigation, but at the end of the day, I think the case that`s really going to convict Donald Trump beyond a reasonable doubt is the one in Georgia. The reason for that is because the star witness in that case is none other than Donald Trump, who`s on two tapes. They`ve got that evidence.
They can also use all of the evidence that the January 6th Committee has gathered to actually put that evidence into context, to show his motive, his plan, his intent, and it really is a very strong case when you put that all together. And there`s no reason — I mean, the Department of Justice frequently will sometimes decline a case because the state sometimes has a better case and a stronger case, and I think at the end of the day that may be very well what happens here.
MELBER: Although, Nick, in Georgia, I mean — go ahead, Maya.
WILEY: Well, I want to underscore something, and Georgia is a good example of this, and it`s something we are saying as a civil rights community to the Department of Justice. We are seeing white supremacist, extremist groups emboldened. Emboldened. The congressional hearings alone are not taking away their feeling of power. Proud Boys are showing up in communities. Folks are feeling intimidated, even around doing basic things around getting out the vote, for example.
It is critically important to investigate this as the Department of Justice, in addition to Nick`s important point, not because it`s only about whether or not Donald Trump is indicted for a crime, but, my goodness, if we`ve seen nothing else, what it has unleashed. The genie that`s been left out of this bottle is not going back in very easily if we tolerate even powerful people getting to incite this kind of extremism that actually interferes with our democratic practice.
[18:15:12]
MELBER: Right. You`re speaking to something we`ve others raised. Andrew Weissmann, which we`re going to get into later in the program, he was talking about the risk of doing it. There`s also if you think the evidence is overwhelming, the risk of not doing it at a time where you have this fascism rising up in the country.
Maya and Nick, thanks to both of you.
I want to give folks an update on what`s coming up because you have those federal raids of Trump coup plotters. John Eastman there getting searched. We`re going to talk about this debate over the DOJ`s measures and pressure. And Steve Bannon losing another measure to get out of the position you see him in there, coming out of the courtroom. His trial starts Monday.
And by the end of the hour, we`ve talked about the Biden administration, whether they can do more to protect women`s rights. Well, they just did something big. I have that story tonight.
(COMMERCIAL BREAK)
[18:20:17]
MELBER: Turning to a big story that relates to what we began the program with. Donald Trump`s culpability and the way these investigations are working, but looks at it inside the DOJ where some experts are saying that there`s just evidence Merrick Garland is slow-walking this whole thing.
Now the Justice Department is pressing the January 6th Committee for its transcripts about one issue, the potential elector fraud, but it may be, quote, “the only topic it`s broached with the panel so far,” according to the reporting. And that`s despite how the committee has laid out so many obviously potentially criminal lanes of this set of plots to overturn the election.
The “Times” also reported that some of the witness testimony outright surprised the Justice Department, reporting, prosecutors there were, quote, “astonished by things like this, what Hutchinson laid out.
(BEGIN VIDEO CLIP)
CASSIDY HUTCHINSON, FORMER AIDE TO WHITE HOUSE CHIEF OF STAFF MARK MEADOWS: I overheard the president say something to the effect of, I don`t effing care that they have weapons. They`re not here to hurt me.
We`re going to get charged with every crime imaginable if we make that movement happen. In the days leading up to the 6th we had conversations about potentially obstructing justice or defrauding the electoral count.
(END VIDEO CLIP)
MELBER: That sounds like a witness you want to talk to, not prejudging whether that leads to a charge or how high it goes but if you`re in the business of prosecuting federal crimes and you`re hearing about them coming out of the White House you`d want to know that. But take a look at this. Before what Washington viewed as a blockbuster hearing, Cassidy`s name did not appear on any subpoenas, she was not considered a primary witness with regard to what the DOJ was doing.
Now prosecutors must follow evidence that they learn about in different ways including in the public. Journalists do their jobs their own way, not as a sort of dry run or kind of ghostwriting for other government agencies, but we all know from past practice that sometimes things that are reported become ledes, and that testimony evidence reportedly jolted DOJ to focus more specifically on Trump`s role, which brings us to someone that you may have heard from before.
He`s got pretty good credentials. I`m talking about Andrew Weissmann, longtime prosecutor, FBI, Mueller veteran, considered a straight shooter and someone who has put fear in the hearts of mobsters, which ain`t nothing. Now he spoke out after that “Times” story, and then elaborated in an interview here on MSNBC.
(BEGIN VIDEO CLIP)
MELBER: You`re basically saying, with regard to some of these witnesses, they`ve been asleep at the wheel.
ANDREW WEISSMANN, FORMER MUELLER PROBE SENIOR MEMBER: I think that`s basically right. The Department of Justice has more tools, not fewer tools than Congress to get at the truth.
(END VIDEO CLIP)
MELBER: Now that`s one prosecutor`s view. What about the committee itself? Well, again, we try to connect the dots here for you. One of its most prominent members, impeachment manager Adam Schiff responded to Weissmann in a BEAT interview as well.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA): I very much share his concern and have been expressing a very similar concern really for months now. But it is unprecedented for Congress to be so far out ahead of the Justice Department in the complex investigation because as he was saying, as Andrew was saying, they`ve got potent tools to get information.
The idea that a year and a half after these events, they would not have talked to these witnesses, but that even the Fulton County district attorney is way ahead of them. It`s I think cause for great concern.
(END VIDEO CLIP)
MELBER: Schiff, very concerned. Others speaking out, saying you got to put the heat on Trump, and remember, when we talk about timing, this isn`t like wedding planning where some people want a year and others want two, and you just kind of figure it out. We`re talking about investigations to decide whether to charge or not. They have deadlines in law. They`re called statutes of limitations and depending on the charges, you could find how someone committed a crime, and it`s too late to charge them.
Also, in fairness to everyone involved in the Trump White House, there are individuals who want to lead their lives, some of them want to run for office, there should be a full and fair investigation and then things should be close out. For example, Mr. Meadows was facing criticism that he might need to be indicted over ducking the committee. In that case, the DOJ looked into it and they declined to charge him while charging, as you may have heard Navarro and Bannon.
So there`s a lot of pressure here to do this better and faster. We will say in context the DOJ has arrested over 800 people in connection with the riot or insurrection that day, but many were on misdemeanor charges. A selected few have faced that more serious and grave charge of seditious conspiracy.
[18:25:01]
One more counterpoint because we want to give you all the evidence, you`ll make up your own mind. There are allies at the DOJ who say, does this look like they`re just sitting around? Does this look like they`re afraid of Washington insiders? Donald Trump`s lawyer John Eastman getting the old pat-down just like any other person in America and having his phone seized from him and being treated like someone who doesn`t get to decide what to do with his phone or his body, being treated like someone who is, well, subject to a lawful search.
And they show him the warrant. They`re handing him the warrant. Or take Jeffrey Clark, who was a high-ranking Trump DOJ official. But this is what it looked like, as you can see from body camera footage, when he was pulled out of his home for that search, again, subject to a lawful independent approved warrant. He asked at one point if he could put pants on. And the agent informed him, no sir, you can`t. They have a process for a safe sweep. They don`t let people just go back in the house.
And he was of course given his rights, given his treatment, but there are allies of the DOJ who say, this is just what little we know about in public, and they are doing the work, executing the warrants. They`re not afraid of anybody.
So those are multiple perspectives on this. A story that is a big one in Washington right now and has consequences for America. We are going to have two seasoned guests weigh in on this and the law when we`re back in one minute.
(COMMERCIAL BREAK)
MELBER: Welcome back to THE BEAT. And we are in studio with Adam Kaufman, former chief of the Investigative Division of the Manhattan D.A.`s office.
Welcome to THE BEAT.
ADAM KAUFMAN, FORMER CHIEF OF THE INVESTIGATIVE DIVISION, MANHATTAN D.A. OFFICE: Thanks, Ari.
MELBER: We just walked through perspectives on that. Where do you come down?
KAUFMAN: You know, I think this is something where you do want to see an aggressive approach by law enforcement. To me, if I were running this investigation, I`d want to broaden it away from focusing just on the events of January 6th and do what the committee has been doing, which is to look at the context, to look at a broader spectrum of possibly criminal behavior, but all of the conduct, and then start making some charging decisions about where to take the investigation.
MELBER: I tried to fairly walk through the perspectives on this. You`ve got the DOJ saying they`re working hard, they`ve got a lot of leads, and when they find criminal evidence, they don`t care if it`s from a DOJ vet or a Washington — they`re going after it. I showed.
KAUFMAN: Right.
MELBER: I also showed Schiff, Weissman, others saying the other side. Do you think there`s something to the fact that they have been slower?
KAUFMAN: It`s a little inconsistent. Because on the one hand you have these statements that DOJ was surprised by some of the testimony, the DOJ hasn`t moved forward. They`ve only looked at the alternate elector issue, so you have some people saying they`re going too slow. At the same time you have these reports of some tension and that DOJ is asking for all of the transcripts, and the committee saying, no, we want to you narrow your request. So I`ve seen both reports. So that`s not entirely consistent to me.
MELBER: So what do you see as the truth?
KAUFMAN: You know, you never know what`s going on with an investigation, right? Criminal investigations, unlike political committees, are conducted in secret. And witnesses are interviewed and witnesses may talk about what they`re — if they have been contacted or not. But the DOJ isn`t going to report on the status of its investigation.
MELBER: Well, I`ll push you slightly.
KAUFMAN: Sure.
MELBER: You do know sometimes about certain search activities like we showed.
KAUFMAN: Right.
MELBER: When people are indicted, you know that. And you can tell from some of the ambient noise, at least what Mr. Weissman concluded, which was they`re not going big and broad. They`re being very targeted, which might miss the proverbial fascist forest from the riot trees, to use an old phrase.
KAUFMAN: I like that. Sure. That`s a well-said phrase. I like that. But no, you`re right. I think that we do want to see — to me, we want to see a broader investigation that is sort of following what the committee has been doing, which is to place all of these actions in a broader context and to gather the evidence that would show perhaps some type of broader conspiracy under, for example, 371, conspiracy to defraud the United States, a conspiracy to interfere with the function of a government department. And to me, that`s where you want —
[18:30:00]
MELBER: Now you`re getting me — now you`re getting — your name and statutes by code. Now we`re getting somewhere. You`re naming a statute that again, goes at the broader thing of, did you make an overt act with corrupt intent to interfere with that stuff, right? That`s big. It would seem that that was Donald Trump`s goal, it would seem that the entire fixation obsession on the 6th was not because it was just kind of a, you know, just a day to gather a couple of weeks out from the inauguration.
It was targeting, interfering, and ultimately violently physically interfering with the counting of the votes along with the general administration of the election, that peaceful transfer of power, who would be culpable for that the president and his aides?
KAUFMANN: So that`s a great question. To me, I would look beyond January 6, beyond the riot, I would look to the president himself, you know, to me, the Raffensperger tape and the Raffensperger intervention. To me, that is as clear a case of criminality, as we`ve seen by Mr. Trump himself.
MELBER: So, if you were drafting an indictment like that, you would have potentially items proof from other days?
KAUFMANN: Absolutely.
MELBER: Right. Very interesting. I want to keep you here with us. As promised, we bring Maya Wiley back into the conversation. Maya first your response to what we just heard here.
WILEY: Yes, that`s my response. I mean — I mean, the short answer here is quite clear. There is evidence, it puts Donald Trump right at the center. It is several different — you know, I think Andrew Weissmann is the one who talked about a hub and spoke approach to criminal investigation, meaning not just starting at the bottom and moving up a chain around the violence of January 6th.
But really looking at everything from fake electors intervening with state legislators asking them to find votes, but also all of the organizing that led up to the events, including Donald Trump in his own campaign for president telling the Proud Boys to stand by — stand by and then later denying he even knew who the Proud Boys were, and then we find out that they are actually clearly active in organizing and inciting the violence.
By the way, known to. I say this to say, you know, really, it is the point that if you look at it as a hub and a spoke, it`s Donald Trump is the hub, and all the spokes are all these different potential pawns.
MELBER: Yes. And I think you both make great points there. Because during that insurrection, impeachment, it`s easy to forget, we always say, oh, don`t we know this, we know that, that really focused in on the speech he gave and where they went. And it was not known then, for example, that he was told they were all armed along with all this other stuff.
But you brought it out and you have the question of just this was Donald Trump`s spending weeks engaged in what some experts call a conspiracy and conspiring for weeks. A Trump-appointed prosecutor at DOJ who began, he sends left I should know but began this probe had this to say.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: It`s unequivocal that Trump was the magnet that brought the people to D.C. on the 6th. Now, the question is, is he criminally culpable for everything that happened during the siege, during the breach, but we have soccer moms from Ohio that were arrested, saying, well, I did this because my president said I had to take back our house. That moves the needle towards that direction. Maybe the president is culpable for those actions.
(END VIDEO CLIP)
MELBER: That was March on culpability. And again, I don`t think from what we know, the DOJ, then certainly not the public had this detail of how many different methods there were, all towards what you said a conspiracy to overtake the election.
KAUFMANN: Yes, there`s a lot of different. And to some extent, the spoke and the hub work, although, you know, that`s a charging theory. That`s a legal theory that you would use in terms of conducting the investigation. It doesn`t really dictate how you conduct the investigation. I think January 6, has laid out that there are a lot of people with information whether what they were doing is criminal or not, will remain to be seen.
There are things that we find unpalatable. That may or may not be criminal. So, we have to sort of keep that in mind and keep focused on the difference between conduct that we find objectionable in conduct that crosses the line and becomes criminal. In this case, there`s a lot of people who were concerned about the election with genuine legal concerns, legal issues, there was a lot of litigation.
And so, you just have to be mindful of the fact that you have sort of what the president is doing. And there`s a lot of other people doing things that may or may not be criminal in how the president, the former president utilized what they were doing.
[18:35:00]
MELBER: But using Weissmann is mostly right or only half right or wrong?
KAUFMANN: I think Weissmann is a very smart guy and he`d been a very formidable prosecutor.
MELBER: Well, we all know he`s smart.
KAUFMANN: He`s —
MELBER: Why do lawyers do that? Why didn`t you just say he`s right?
KAUFMANN: I don`t know. I don`t (INAUDIBLE) —
MELBER: You (INAUDIBLE) well, he`s busy. I thought you`re going to dodge. But you basically publicly agree with him?
KAUFMANN: I do. I think the idea is good, whether that legal theory holds up the same for this type of conduct as it would for a truly criminal organization, right? It — it —
MELBER: No, it`s harder to charge ex-government officials because they`re not — let`s not recall the way you have for a gang. But it can be a theory to use. I`m out of time, but Maya, did you notice that, why did Adam do that?
KAUFMANN: Why am I — why am I the sub —
WILEY: Adam seemed like a nice guy to me. You`re really credible, Adam. I`ll just — I will add just what — one quick thing here is, I have seen the Department of Justice open investigations based on news headlines. We have more than headlines here.
MELBER: Yes, no, I think you both — you both make very fair points. Maya has been around here longer than you, Adam, in terms of pizza she knows that when I kid it`s out of professional love and respect. It`s true.
KAUFMANN: Thank you.
WILEY: We`ve all been there, Adam.
MELBER: Maya and Adam, enlightening us here on an important story. I appreciate it. I`m going to fit in a break, but when we come back, Steve Bannon keeps losing his bids to delay the trial, so he is going to go on trial facing two years in prison, Monday. We have that story and something else about, well, not only law and order, but moves to protect rights in America. All that coming up.
(COMMERCIAL BREAK)
[18:41:01]
MELBER: Another loss for Steve Bannon, the former Trump aide found a judge today refusing to delay his trial. And that means this first trial actually growing out of the January 6 committee with a contempt vote they held on charges they recommended begins Monday when they begin selecting the jury. This is the accountability this committee had pledged in which was at one time an open question when Bannon was really the first high-profile person connected to Trump to blatantly defy their subpoena.
(BEGIN VIDEO CLIP)
REP. LIZ CHENEY (R-WY), JANUARY 6 COMMITTEE VICE-CHAIRMAN: The plain fact here is that Mr. Bannon has no legal right to ignore the committee`s lawful subpoena. There is no conceivably applicable privilege that could shield Mr. Bannon from testimony.
REP. BENNIE THOMPSON (D-MS), JANUARY 6 COMMITTEE CHAIRMAN: Mr. Bannon will comply with our investigation, or he will face the consequences.
(END VIDEO CLIP)
MELBER: Fact check — true. He`s facing the consequences. He`s facing two years in prison. He`s tried to run from this trial, but it is currently on track to begin Monday. Now, if you go all the way back, you may recall Steve Bannon used to be tight with Trump. He was the campaign chair, the number one position in 16.
And he talked about that whole quote-unquote honey badger strategy because honey badger don`t care. And he said that`s what was great about Trump and obviously Bannon saw that a little bit of himself and himself and he acted that way defy it. When this all first started in court.
(BEGIN VIDEO CLIP)
STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: I`m telling you right now, this is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. We`re going to go on the offense, we`re tired of playing defense, we`re going to go on the offense on this and standby.
(END VIDEO CLIP)
MELBER: Except not. And if he was tired of playing defense, then well, this is a criminal defense that he has to launch on Monday. He`s going to be very tired as this trial approaches. And you know, if you follow the news that Bannon said, or conveyed, that he needed to surrender. That he broke. That he was now willing to suddenly talk to the committee. Prosecutors are pushing forward for a conviction that would give Bannon two years in prison on two felony counts.
Congressional investigators say and Adam Schiff told me this recently, they welcome Bannon, they want to talk to him, but he would have to provide full compliance testimony and documents and that legally does not just disappear or cancel out this trial. They just say they would welcome his cooperation.
It will begin Monday and we will cover it for you. We`re going to fit a break when we come back, I`m going to show you why some advocates are cheering Joe Biden using the Reagan-era law to protect some abortions. Indeed, some experts say this could apply to all 50 states. But that seems surprising given the new Supreme Court ruling we`ll explain next.
(COMMERCIAL BREAK)
[18:48:07]
MELBER: President Biden is moving ahead with more measures to protect some abortion rights where possible. And the news here is applying a law that`s already in the books. There`s been talk about a new federal law that could somehow pass to protect any or all types of abortions including in states that have state bans since Roe fell. But the Biden administration is doing something different.
They`re invoking a law on the books to tell doctors they must provide abortions when the life of the mother is in danger citing this federal law that protects access to any emergency care or treatment, mandating an abortion if a doctor does deem it necessary in what they call a medical emergency. The law was signed in two — I should say the bill that was signed into law by President Reagan in 1986.
And hospitals, which somehow fight these could potentially face physic — civil and financial penalties. Biden administration also as a directive for pharmacies that warns them against trying to withhold pills to induce abortions. The view is refusing to provide those kinds of drugs could be discrimination, and thus illegal.
The new guidance comes after reports that women were denied certain abortion medications that are also known to treat other conditions like lupus or miscarriages. Women`s rights advocates have pushed this administration to do more and everything in their power, especially after the Supreme Court ruling. If President Biden does act, for example, to defend this emergency care program, it could tee up a real clash with red states that have some of the most extreme no exception abortion bans on the books are coming.
It`s an important story and we want to bring in Michelle Mello, professor of law and health policy at Stanford. Thanks for being here.
MICHELLE MELLO, PROFESSOR OF LAW AND HEALTH POLICY, STANFORD UNIVERSITY: Thanks for having me.
MELBER: What happens then if the federal government now says there`s this right to emergency care which can include that procedure and states act in a manner or doctors say they believe it`s illegal and thus try to block it in the situation for a woman.
[18:50:00]
MELLO: Well, the main thing this new guidance document does is make crystal clear that in a situation where state law comes into direct conflict with this federal law called EMTALA, not only May a hospital and physician provide care in accordance with federal law, they must. And if they don`t, they can be subject to enforcement action through a complaint process.
MELBER: So, what happens with states that then disagree? There`s a legal process that people familiar with Texas, we can show as already said, they`re going to sue over this. So that might create the conflict for the courts to resolve it. But what happens if in a state with a no exception ban, the state takes the position that doctors can`t do it and that they could be subject to all kinds of penalties?
MELLO: So, it`s really not up to states to decide that they don`t want to go along with federal law in a situation where first of all, the federal government is constitutionally allowed to regulate in that particular area. And secondly, Congress has clearly spoken and said, no, in this type of situation, federal law is going to control.
So, there are many ways in which state law can conflict with EMTALA and the state law will prevail, but not when what is at issue here is a direct conflict with the core directive of EMTALA, which is that if a person comes into a hospital or birthing center with an emergency condition, and the medically appropriate stabilizing treatment is abortion, you must provide that treatment. A state can`t decide to override that.
Now they can sue and try to claim that there is another way of thinking about this issue of preemption, which law controls federal or state, that`s going to be a very tough argument to prevail on in this case, and it might turn on how a court thinks about the concept of stabilizing treatment.
And a state could also move against an individual physician, for example, bringing our criminal action and in that case, EMTALA, this federal law can actually be wielded as a defense to shut that lawsuit down at an early stage.
MELBER: So, is your view then that this is fairly decided across the country that doctors know this and there won`t be concern or ambiguity?
MELLO: I don`t think doctors know this. I don`t even think hospital counsel were clear about this. And that`s why this guidance, document matters. There are lots of issues on which physicians and hospitals feel really unclear about what the law requires of them. And that`s especially a problem where federal and state law conflict because that`s a messy area of law, even for lawyers.
So, it`s great that the federal government has come out and stated clearly the agency`s interpretation of a statute, it`s in charge of enforcing. Now that should be clear, physicians should have a clear defense. Patients who present at an emergency department or birthing center in an emergent condition should be able to wield this document to assert their right to treatment.
And I`m going to post links to those documents on my Twitter page for anyone who`s interested. So, it helps clarify an area that I think too many people was causing a lot of stress and uncertainty.
MELBER: And then widening out, do you think the administration now has started to do all the things that are within their current power, while they have an obligation, of course, to respect a Supreme Court decision, or is there more as an expert that you think they can do?
MELLO: I think there is more that they can and will do. And what`s notable about the executive order that President Biden issued last Friday is he`s calling on multiple federal agencies to really do a soup-to-nuts review of the legal tools at their disposal and how they could be helpful. And it calls for the Biden administration to mobilize a group of smart committed pro bono attorneys to help them think that through.
You can be sure that this group of highly motivated and sophisticated legal counsel is going to come up with lots of ways for agencies from the centers for Medicare and Medicaid Services to the Office of Civil Rights to the Federal Trade Commission and other agencies to take incremental but useful actions to try to restore a little bit of what was lost with the Dobbs ruling.
MELBER: Michelle Mello, thank you very much.
MELLO: Thanks for having me.
MELBER: We`re going to fit in a break. When we come back, we talk progress even in Washington, stay with us.
(COMMERCIAL BREAK)
[18:58:36]
MELBER: I want to tell you about a historic day at the Capitol today even if like so many such breakthroughs, it is overdue. This is the first African American statue ever unveiled in what is the national statutory — statuary, I should say hall. Statutory is how they write the laws. It`s the civil rights activist Mary McLeod Bethune, the daughter of former slaves who went on to become an educator, opened a school for African American women and girls in Daytona Beach back in 1904.
If you`ve ever gone through the Capitol on a tour, you`ve seen those statues. She is a civil rights leader, a women`s leader, an American leader. Her statue replaces one of a Confederate general, fitting. The speaker of the House said this about the history being made.
(BEGIN VIDEO CLIP)
REP. NANCY PELOSI (D-CA), HOUSE SPEAKER: Young people come to this Capitol and they see a reflection of our nation`s beautiful diversity, beautiful success, and greater possibilities for them in their future. So as would be with Dr. McLeod, had in her legacy, in her will, as our colleagues have mentioned. She gives people faith and hope.
(END VIDEO CLIP)
MELBER: So that happened. We wanted you to know. And for all the talk about statues and namings, not everything that`s ever been put up in America needs to stay up forever. And sometimes those debates will lose out and keep people distracted from thinking about who are the other people that we want to memorialize.
If you have further thoughts about this or the program you can always find me online at AriMelber.com or on social media @AriMelber if you want to get in touch. Keep it locked. “THE REIDOUT WITH JOY REID” starts now.