Updated
Summary
The January 6 Committee is considering seeking testimony from Donald Trump and Mike Pence. The January 6 witness that Trump tried to call was a White House support staff. Mother Jones obtained leaked audio of Bannon sharing what he knew with a group of associates just days before the 2020 election. Republican Attorney General in Indiana says he is investigating the doctor who treated the 10-year-old rape victim.
Transcript
JOY REID, MSNBC HOST: You have to vote persistently. Vote like your grandma. That`s how you get what you want. Vote like your grandma because he never stops voting. She`s in the church, and she shows up, she always votes. That`s why she gets what she wants ultimately. Former Senator Barbara Boxer, Cristina Tzintzun Ramirez, thank you both very much.
That is tonight`s “REIDOUT”. ALL IN WITH CHRIS HAYES starts now.
(BEGIN VIDEO CLIP)
ALICIA MENENDEZ, MSNBC ANCHOR (voiceover): Tonight on ALL IN.
REP. LIZ CHENEY (R-WY): After our last hearing, President Trump tried to call a witness in our investigation.
MENENDEZ: Who did the ex-President call and will there be legal consequences?
REP. BENNIE THOMPSON (D-MS): It`s highly unusual to do that. And that`s why we more or less, put that in the hands of the Justice Department to make that decision.
MENENDEZ: Tonight, new reporting that the January 6 Committee might try to call Trump as a witness and subpoena Mike Pence. Then —
STEVE BANNON, TRUMP`S CHIEF STRATEGIST: And what Trump`s going to do is declare victory, right? He`s going to declare victory. But that doesn`t mean he`s a winner, he`s just going to say he`s a winner.
MENENDEZ: On the eve of his trial, new audio of Steve Bannon laying out Trump`s 2020 plans. Plus, as the Senate tries to Trump proof American democracy. Will it be enough? Marc Elias is here on that when ALL IN starts right now.
(END VIDEO CLIP)
MENENDEZ (on camera): Good evening from New York. I`m Alicia Menendez in for Chris Hayes. And we have some major new developments tonight in the ongoing investigation into the insurrection on January 6. The Wall Street Journal reports that members of the House January 6 Committee are considering seeking interviews with both Mike Pence and Donald Trump.
Congressman Adam Kinzinger, one of two Republicans on the committee, says that they may request a written interview with the former vice president or they could issue a subpoena to try to compel him to testify. While the committee is still weighing whether it will ask Trump to testify, Congressman Kinzinger “expects the committee will likely decide to make a criminal referral to the Justice Department regarding Trump`s actions on January 6 and the days leading up to it.”
We are also getting new details about potential witness tampering by the ex-president. NBC News reports that Donald Trump tried to call a member of his White House support staff was in talks with the January 6 Committee first learned about the existence of this call from committee Vice Chair Liz Cheney during Tuesday`s hearing.
(BEGIN VIDEO CLIP)
CHENEY: After our last hearing, President Trump tried to call a witness in our investigation, a witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump`s call, and instead alerted their lawyer to the call. Their lawyer alerted us. And this committee has supplied that information to the Department of Justice. Let me say one more time, we will take any effort to influence witness testimony very seriously.
(END VIDEO CLIP)
MENENDEZ: Following that incredible revelation, there was a lot of speculation about who the witness might be. But we now know that it was someone who worked in the White House with Donald Trump, someone who may have been watching and listening as Trump and his inner circle plotted the coup. And this unnamed witness would likely be in a position to corroborate some of the explosive testimony we heard from Cassidy Hutchinson just last month, the details of Donald Trump`s attempt to lead armed rioters to the Capitol on January 6. The committee is working to protect this witness as Chairman Bennie Thompson told reporters.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Are going to hear from this witness?
THOMPSON: I would doubt it. You know, we are concerned obviously about the witness and we don`t want to put that witness in unnecessary jeopardy.
UNIDENTIFIED MALE: Is there enough — is it your opinion that there`s enough evidence to say that there was an attempt to intimidate the witnesses?
THOMPSON: Well, from my vantage point, it`s highly unusual to do that. And that`s why we more or less, put that in the hands of the Justice Department for them to make that decision.
UNIDENTIFIED MALE: And this was just one missed phone call from the former president.
THOMPSON: That`s all that I`m aware of.
(END VIDEO CLIP)
MENENDEZ: Now, as chairman Thompson says, it is up to the Department of Justice to decide if they will bring potential charges against the ex- president. Capitol Hill Correspondent Ali Vitaly has been reporting this out for NBC News. She joins me now. Ali, what do we know about this White House staffer and what do we know about what they have told the committee?
ALI VITALI, MSNBC CAPITOL HILL CORRESPONDENT: The goal is to get as close to being in the room as possible, especially for those key moments that Cassidy Hutchinson teased out two weeks ago in that special hearing that she was a part of what this person could potentially speak to is more of those moments bolstering her accounting, things like for example, the former President having thrown a plate at the wall with ketchup dripping down it. That`s a room that Cassidy Hutchinson said that she walked into. And something — and some place that one of those support staffers could have had access to, because they were in those parts of the White House that not everybody was able to be in.
But what I think that this continues to show perhaps even more important than who this was, is the way that the committee is trying to attack this final hearing, trying to make this juxtaposition between the three hours nearly the Capitol was actively under violent attack, and juxtaposing that with what was going on in the White House. Trying to continuously paint this picture of a former president, who was not just being urged by his advisors to do more and not doing it, but someone who was angry about what he was seeing on that day in not being able to potentially hold on to power when it was clear that they had exhausted almost every option available to them to try to do so, Alicia.
MENENDEZ: Ali, I want to ask you about another story that was developing as we came on air. NBC has obtained this letter sent from the Department of Homeland Security inspector general to the House and Senate Homeland Security Committee saying that the Secret Service erased text messages from January fifth and sixth, after the inspector general requested those records.
The letter does not say whether the texts were deliberately deleted, but Ali, what do we know about this incident?
VITALI: Yes, that`s exactly right. And so much interest in what those Secret Service text messages could have been, especially given all of the information that the committee and others need to know around the fifth and sixth. Now, I will say, and we should put up on the screen, a tweet from the spokesperson from the Secret Service. Of course, none too pleased with this reporting and promising that they will have their own response forthcoming.
But what I think that this does, again, is it shows the challenge for the committee as they are laying out publicly all of their new findings and yet still actively behind the scenes finding new findings. And it`s why we`ve heard from people like Chairman Thompson, when I asked him this the other day, are reporting an expectation is that next Thursday in primetime is the final hearing with an asterisk though, Alicia, because that`s the summer phase of these hearings.
Congressman Kinzinger, leaving the door open to more hearings. The chairman himself telling me that there was the possibility of more hearings. They expect to do one when they ultimately release a final report in the early fall. But that`s not to say that they`re not going to find occasion or new information to come forward and do more of these.
We know, for example, that they`re still considering what to do about Ginni Thomas. There`s interest in at least the first tranche of potential documents from Steve Bannon with his about-face that he may want to cooperate right now for whatever new reason, the committee is pretty skeptical there. But if they can get some documents from him, all of this could present new information. And all the committee wants to do is get as close as they can to the truth as possible.
MENENDEZ: Ali Vitali covering all of this for us from Capitol Hill. Ali, as always, thank you. Donald Ayer served as Deputy Attorney General under President George HW Bush. He is now calling for the Justice Department to prosecute Trump. He joins me now.
If Donald Trump did in fact try to tamper with a witness in the committee`s investigation, how do you read that choice? Do you read it as a stupidity, as a flagrant attempt to intimidate, a complete disregard for the rule of law, or all of the above?
DONALD AYER, FORMER DEPUTY ATTORNEY GENERAL: I think you really have to know more about the facts in order to give an opinion like that. You know, and I think — I think Chairman Thompson was quite prudent to say that he was leaving it to the FBI. You know, there are a lot of loose ends — they`re not just loose ends, there are a lot of facts continuing to be developed. And I don`t know how long it will go on. But I think it may go on a bit longer.
And the article that we wrote that you referred to, really doesn`t deal with those loose ends. It deals with what is sort of out there now very clear from the hearings, and that`s sort of the donut rather than the hole in the donut. And I think what we talked about, and I`d be happy to say more, is the enormous amount of evidence which the committee hearings have brought to light showing that Donald Trump was the driving force behind this entire effort to overturn the election.
January 6 was part of it for sure, but it wasn`t all of it. There was all sorts of other things, influencing people in the states on their vote counts, influencing the Justice Department efforts to influence Mike Pence. All of that is central to this plan. And our article discusses the ways the hearing shows Donald Trump is at the heart of all of it.
MENENDEZ: I do want to hear about that. But one question that flows out of that is why you believe that the benefits to that outweigh the risks?
AYER: Well, I think it`s really it really goes to the fact that the evidence we now have, across the board of his conduct, show his own personal involvement, time and again, in very personal ways in interfering in a way that was intended to overturn the election.
This could have been a set of facts where all sorts of different people ran around and did things. And you could argue about whether Donald Trump really knew about it, to what extent he was involved in it, to what extent he`s the cause of it. Well, those aren`t the facts. The real facts are Donald Trump was driving the entire program. That`s why it`s critical that he be held to account.
We can`t have a system where a president can willfully deliberately and with no ambiguity act to overturn a legitimate election, and nobody does anything about it. If we have that system, our system won`t work, so something has got to be done.
[20:10:57]
MENENDEZ: When you talk about what we know, versus the loose ends of those loose ends, which do you think would most help and making a complete case?
AYER: Well, I don`t know. I mean, I think what one big picture question, which I think we`re going to hear more about next week, we`ve already heard quite a lot about it, goes to the issue of Donald Trump summoning people being aware they were armed, perhaps really directly soliciting violence on their part. It seems he certainly didn`t care if they engaged in violence. He wasn`t concerned about it. So, that — those facts developing I think further would be significant.
But the point I want to stress is that on the question that`s really most important, and that`s the question of did Donald Trump personally engaged in a very serious way in trying to illegally overturn the election knowing that it had been — there was no fraud involved in it. That evidence is now very powerful without collecting further evidence that I can see.
Now, the important thing to know is that the Justice Department has to ultimately make this call. They have to have the witnesses ready to go. They have to have admissible testimony. What we saw in the hearing was not necessarily all what you would call admissible testimony that can be used in court. You`d have to look at it piece by piece.
So, there`s a professional judgment to be made by the Justice Department. But the facts that have come out across the board showing Donald Trump`s involvement and overriding, time and again, overriding the objections, the resistance, the opposition of his own people to every different thing that he did, that`s a very, very powerful evidence that he engaged in criminal acts to overturn the election. And our view is clearly needs to be prosecuted in order to deter that conduct in the future.
MENENDEZ: I want to go back to something we`ve heard from Chairman Thompson, which was his saying that we are not likely to hear from this witness that the president — ex-president called because the committee does not want to put them in unnecessary jeopardy. I wonder what it says to you that the committee believes that witness could be put in jeopardy in the first place. And does it mean then that Trump has succeeded in his attempt at intimidation?
AYER: Well, you have to know the facts before you can start the pining on what it all means. And we have very few facts here other than the one that the Donald Trump apparently placed a call to this person who was someone that committee had been communicating with. That looks suspiciously like it could be an effort to influence a witness.
But you have to know the facts before you can sort of make a pronouncement about it. And I don`t have those facts. And I don`t think anybody I know has those facts. So, it`s one of those things that is out there. It`s perhaps significant. Maybe the FBI has more facts. And so, you know, I would –I would encourage people really to look at what we do know, rather than focusing in on the few details coming up right now that we don`t know the specifics of.
MENENDEZ: The doughnut versus the hole as you said. Donald Ayer, thank you so much for being with us. Coming up, as Steve Bannon prepares to go to trial next week, new leaked audio from the former Trump advisor shows he knew exactly what the former president would do if he lost reelection. That incredible new tape and the reporter who found it, it`s next.
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[20:15:00]
MENENDEZ: Once again, for the second time this week, Steve Bannon failed to delay his criminal trial for contempt of Congress. The judge rejected Bannon`s argument that there was too much pretrial publicity, and the trial will go forward on Monday as planned. It`s happening just as we are learning more about exactly what Bannon might have known regarding Trump`s plans to stay in power.
Mother Jones obtained leaked audio of Bannon sharing what he knew with a group of associates just days before the 2020 election.
(BEGIN VIDEO CLIP)
BANNON: The Democrats — more of our people vote early that count, theirs vote in mail. And so they`re going to have a natural disadvantage and Trump`s going to take advantage of it. That`s our strategy. He`s going to declare himself winner. So, when you wake up Wednesday morning, it`s going to be a firestorm.
Also, if Trump — if Trump is losing by 10:00 or 11:00 at night, it`s going to be even crazier. Because he`s gonna sit right down said they stolen. Yeah, I agree. I`m a draft losing by 1011 o`clock at night. It`s going to be even crazier. No, because he`s going to sit right there and say, they stole it.
[20:20:08]
UNIDENTIFIED FEMALE: Yes, agreed.
BANNON: I`m directing the attorney general to shut down all ballot places in all 50 states. It`s going to be — no, he`s not going out easy. If Trump — if Biden is winning, Trump is going to do some crazy (BLEEP).
(END VIDEO CLIP)
MENENDEZ: That`s our strategy. He`s going to declare himself winner. That`s what Steve Bannon said Trump was going to do. And it`s exactly what Donald Trump did just days later. Dan Friedman is the Mother Jones reporter who revealed about audio, and he joins me now. Dan, give us some context around this. Where was this audio recorded? Do you know why it was recorded?
DAN FRIEDMAN, REPORTER, MOTHER JONES: Yes, thanks for having me. This was recorded in the war room offices in Washington DC. And it was Bannon was talking to a group of associates of Miles Guo or Guo Wengui who`s a Chinese mogul exile who`s living in Manhattan in a huge apartment and who Steve Bannon has worked for.
And these people specifically are affiliated with something called GTV or it`s a former company GTV News that Guo runs and Bannon has worked with, and they were sort of planning how they were going to cover election night. That`s like a Chinese language far right sight. And the person who gave it to me, obviously, I can`t say very much about that, but there are a lot of people who are both unhappy with some of the people involved in sort of Guo and Bannon circles, but also who have a lot of regret about January 6 and other activities that they were involved in.
MENENDEZ: Dan, you write that Bannon predicted widespread political violence. Can you share more about that?
FRIEDMAN: Yes. He — one thing he said was he had this idea that Antifa was going to have like tens of thousands of people in Washington on Election Day. That obviously didn`t happen. That was wrong. But more generally, he said, you know, this is going to cause — he said, when Trump falsely declares victory, if Biden is winning and Trump says, as they have had a plan to do, when Trump says I won, even though he was actually losing, that`s going to cause a firestorm, the left is going to be very upset.
And what he was saying is that this is going to lead to political violence. And he seemed to be suggesting that political violence would make it easier for Trump to — this agent of chaos to pursue his goal of contesting and election results that went against him, and ultimately getting somehow this question before the House of Representatives where he can be declared the president despite having lost the election.
MENENDEZ: Agent of chaos indeed. Trump famously fired his FBI Director James Comey in his first month in office. On the audio, you have been in predicting that Trump would fire another FBI director. Let`s take a listen.
(BEGIN VIDEO CLIP)
BANNON: Here`s the thing. After that, Trump never has to go to a voter again. He`s going to fire Wray, the FBI Director. He`s going to say, (BLEEP) you. How about that? Because he`s never going to — he`s done his last election. Oh, he`s going to be off the chain. He`s going to be crazy.
(END VIDEO CLIP)
MENENDEZ: I don`t know — I don`t know what`s more disturbing, the actual audio or the laughter is in the audio. Who else did Bannon list as being on Trump`s chopping block? Does he say why?
FRIEDMAN: He said, the Defense Secretary Esper was going to be fired. That was correct. He said that Anthony Fauci was going to be fired. Anthony Fauci was not fired. He said that Alex Azar, the HHS Secretary would be among them, and Gina Haspel, the head of the CIA would be fired.
And you know, what is striking about that is he is predicting that because Trump will not have to face voters again, he will be freed to do whatever he wants and not have to be responsive to democratic pressures. Steve Bannon and Trump have, you know, described themselves as these great populist, these advocates of democracy. And here Bannon is expressing contempt and mockery for, you know, the idea that voters have a say in how the government is going to be run.
MENENDEZ: Here`s the thing that in a normal political environment, audio like this would be absolutely devastating and damning. What was Bannon`s response to this audio being published?
FRIEDMAN: Bannon`s response was that this is already — I already said this in public so no story here. This isn`t news, which is extraordinary, because what he`s saying is — what he`s not saying is anything exculpatory. He`s not saying I didn`t do it. He`s not saying this isn`t significant. He`s just saying, well, you know, I already said this, so why are you writing an article about it? So, I think that`s quite striking.
You know, our article says, that he — that he had acknowledged that Donald Trump had a plan to lie about the election results so that he could get Americans and particularly his supporters to believe that he had won when he had in fact lost, so that he could use that as a political tool to challenge the election results and to do what he ultimately did or almost did, which is get Congress to try to install him as president despite having lost. So, you know, he isn`t denying that at all. He`s just — he in fact, confirms that he advocated that.
[20:25:43]
MENENDEZ: And then you get to the part about mail-in ballots, and it`s some of the same stuff you were hearing from Trump back in July of 2020. Dan Friedman, thank you so much for bringing this to us.
Coming up, why the right is now attacking the doctor who helped a 10-year- old rape survivor? That`s next.
(COMMERCIAL BREAK)
[20:30:00]
MENENDEZ: When the horrific news broke that a 10-year-old child had been forced across state lines to get an abortion because of Ohio`s post Roe abortion restrictions, the right-wing media tried to cast doubt on the story. In The Wall Street Journal`s headline, an abortion story too good to confirm, to Fox News is suggesting it could be a hoax.
(BEGIN VIDEO CLIP)
JESSE WATTERS, HOST, FOX NEWS: Primetime decided to investigate this alleged child rape. But we quickly found out that authorities in Ohio haven`t even begun a criminal investigation into the rape. This doesn`t make any sense. No one reported this child rape to law enforcement?
(END VIDEO CLIP)
MENENDEZ: Well, then, yesterday after the alleged rapist was formally charged with raping a 10-year-old girl, the right wing couldn`t pretend the story wasn`t real anymore, so instead, they started going after the doctor in Indiana who helped that child. Here`s Indiana`s Republican Attorney General Todd Rokita.
(BEGIN VIDEO CLIP)
TODD ROKITA, ATTORNEY GENERAL, INDIANA: Then we have this abortion activist acting as a doctor with a history of failing to report. So, we`re gathering the information, we`re gathering the evidence as we speak, and we`re going to fight this to the end, including looking at our licensure, if she failed to report. And in an Indiana, it`s a crime for — to not report.
(END VIDEO CLIP)
MENENDEZ: Michele Goodwin is a professor of law at the University of California, Irvine. Last year, before Roe was overturned, she published a piece in The New York Times titled “I was raped by my father, and abortion saved my life.” She joins me now.
Michele, I want to hear from you and your academic expertise, but I also want to ask you, as a survivor, how are you processing what we`re watching unfold in the case of this 10-year-old girl?
MICHELE GOODWIN, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, IRVINE: Well, you know, I think it`s important that we not invest in the pornography of pain, but let`s be clear that around the country, there are survivors who are men, and women, girls, boys who`ve experienced histories of rape, including in the states of Indiana and Ohio in religious organizations within families. None of this should be a surprise to lawmakers.
None of this should be a surprise to individuals who cover these stories in the media. They have been quite broad. There have been investigations by the Catholic Church, by Jewish organization, so we know that child rape exists in the United States. It`s been well-recorded on. There have been movies and documentaries made about it. So, the shock and awe and the incredulity that`s been associated with this is really insulting for all people, not the least of which are people who survive these traumatic encounters.
MENENDEZ: Michele, you have the Indiana A.G. saying today he will try to criminally prosecute the doctor who legally performed the abortion for the 10-year-old girl. What kind of chilling effect does that then have on doctors and other health care providers?
GOODWIN: Well, it raises questions about his ethics. It raises questions about abuse of prosecutorial discretion. It`s already been clear through news reporting that this doctor appears to have filed all of the appropriate forms. But the singling out and selectively going after one doctor in the state who has helped this child is deeply alarming.
But I think it`s political pandering. Let`s be clear that this is a political office that this individual holds. That means he fundraises in order to be able to secure votes or get his message out. And a lot of this is about that, in addition to the fact that it has really poor taste to do this.
But it is also clear to and should be to ethics review committees that this really is a singling out of someone who appears to be doing lawful work, and is also work that is where there are ethical standards and medical standards. And I`m glad that this child was able to get the care that the child sought.
MENENDEZ: Michelle, it seems like Republicans are now trying to redefine what an abortion is. This is a Republican witness in a house judiciary hearing today. Take a listen.
(BEGIN VIDEO CLIP)
REP. ERIC SWALWELL (D-CA): Do you think a 10-year-old should choose to carry a baby?
[20:35:00]
CATHERINE GLENN FOSTER, PRESIDENT & CEO, AMERICANS UNITED FOR LIFE: I believe it would probably impact her life. And so therefore, it would fall under any exception and would not be an abortion.
SWALWELL: Wait, it would not be an abortion if a 10-year-old with her parents made the decision not to have a baby that was the result of a rape?
FOSTER: If a 10-year-old became pregnant as a result of rape and it was threatening her life, then that`s not an abortion. So, it would not fall under any abortion restriction in our nation.
(END VIDEO CLIP)
MENENDEZ: Then, that`s not an abortion. There was, of course another expert who retorted that abortion is medical care. What do you make of her comments, Michele?
MICHELE: If you read the law, the law that was signed into effect by the governor, there are no exceptions for cases such as that which this girl has, so changing the language of it, or the meaning of it given that there has been public uproar doesn`t change the fact that this child couldn`t get that pregnancy terminated in the state that she was coming from.
And I have colleagues who are OBGYN who say that there are fundamentalist anti-abortion, people who come seeking abortions from them, and they will say, but this is not an abortion. And there are these moments in which they have to make sure that there is informed consent. But it`s not unusual that there have been people who consider themselves anti-abortion who do get abortions, and they don`t like to call it abortion, they`d like to call it something else.
But that`s exactly what it is. And they like other people don`t want to be saddled with involuntary pregnancies or being forced to carry pregnancies that they don`t want. And in those instances, they call it something else.
MENENDEZ: Professor Michele Goodwin, as always, thank you so much for taking the time to be with us. Coming up, the latest attempt by the Senate to Trump-proof American democracy. Will it be enough? Election lawyer Marc Elias weighs in. That is next. G
(COMMERCIAL BREAK)
[20:40:00]
MENENDEZ: Given everything we`re learning about Donald Trump`s attempts to overturn the 2020 election, it seems pretty obvious that a whole bunch of fixes are desperately needed to preserve the future of American democracy. And tonight, there might actually be movement on that front in the United States Senate.
A group of bipartisan lawmakers has been working on a deal to reform the electoral Count Act and put an end to any confusion about what the Vice President can or cannot do when it comes to certifying election results. Lawmakers are finalizing legislation and could release the text of the bill as early as next week.
Marc Elias, one of the foremost election lawyers in the country says more needs to be done because “combating subversion is more complicated than simply reforming one archaic law.” And Marc Elias joins me now. Marc Elias, there is so little good news. Let us have this. So, tell me what more should and could the Senate be doing right now?
MARC ELIAS, ELECTION LAWYER: So, there`s so many things that Congress needs to do. Let`s start with fixing the — undermining that we are seeing at the state level of vote by mail. They could tackle the problems of the Supreme Court`s erosion of the Voting Rights Act. So this is not to say that the Electoral Count Act is perfect. It`s a very old law. It`s very outdated. But honestly, if you asked me the top five things you needed to do to preserve democracy, you know, divesting Kamala Harris of power, as the honorary president of the Senate in the counting of ballots would not be in the top five.
MENENDEZ: All right, fair enough. You write “I don`t expect Republican election officials to blatantly ignore the election results and declare that the candidate who received fewer votes has won. The Republican elections version plan is more sophisticated than that. Instead, I expect Republicans to use false allegations of fraud as a pretext to remove ballots from the vote totals, and then certify those incomplete results.
Marc, how would state Republican officials go about doing this?
ELIAS: Yes, so this is, I think, the real threat to democracy In 2022 and 2024, because we all talk about the right to vote, but the second part of that is the right to have your vote counted and for the right to have the accurate results certified. So, what I worry about is that Republicans at the local level and at the state level simply won`t include all the ballots in the certified results.
Now, if that sounds crazy, right now, today, the state of Pennsylvania is suing three counties in Pennsylvania because they are refusing to include in their certified results ballots that a federal court and the state court have told them they have to include. So, it is the failure to properly certify election results way before you get to counting electors in the chamber of the House and Senate that I worry most about.
And that`s why I think we need, you know, whether it`s the John Lewis Voting Rights Act or the For the People Act, or the Freedom to Vote Act. We need comprehensive legislation to deal with the complex challenges facing our voting systems today.
MENENDEZ: I always appreciate when someone is willing to rank their anxieties, and so, Marc, I want you to help me by adding another one into the mix because you have the Supreme Court last month deciding to take up that case from North Carolina where according to NPR, “Republican lawmakers argue that the U.S. Constitution`s election clause gives state legislatures the power to determine how congressional elections are conducted, without any checks and balances from state constitutions or state courts.” What does that then mean, Marc, for the future of elections?
[20:45:14]
ELIAS: Yes, this is a —
MENENDEZ: How anxious — are you worried about that?
ELIAS: Yes, so I`m very worried. This is a fringe legal theory called the independent state legislature theory. Until recently, no one took it very seriously. It`s now been advanced to the U.S. Supreme Court. It`s a case, actually, my firm and I are involved in representing the folks who brought the original claimant one who are now defending against this fringe theory.
And what they are arguing is that because the law — because the Constitution says that state legislatures redistrict or set the time, place, and manner of elections, it means only the legislature, it means state courts can`t review it, it may even mean governors can`t veto it. And that is an existential threat to democracy. If state legislatures are given this superpower where no one can check what they do, it will impact how we hold congressional elections, and also how presidential electors are chosen in the states.
MENENDEZ: I mean, Marc, you`ve been — you`ve been watching what`s been coming out of this Supreme Court. I mean, how do you think they`re going to rule on that?
ELIAS: Look, I`m very worried. I`m very worried because we had a precedent in Roe v. Wade which was settled 50 years ago, and was over and over and over again reaffirmed. It was relied on by millions and tens of millions of Americans every year. And the Supreme Court ignored it and did what they wanted to do. And if they`re willing to do that with a — with any fundamental right, they`ll do it to another fundamental right.
No one is safe from having their rights trampled upon when the Supreme Court is willing to do this. So, I`m worried. But that said, I`m also an optimist. And we`re going to make the best arguments we can for the court. And hopefully, they will stand for the beacon of democracy that we need them to be.
MENENDEZ: My glass is likewise half empty and half full. You know, you wrote back in October of 2021 that “Those who support democracy are not as prepared or as focused as those who seek to subvert it.” Do you still believe that today, Marc?
ELIAS: Absolutely. I mean, every day, Steve Bannon is out there spewing hate on the internet and getting people to get into conspiracy theorists, to become poll workers. Every day Donald Trump is telling the big lie. Think about it this way. Think about the median Republican in your head in 2020 in Congress and how crazy were they? Now ask yourself that question today. It hasn`t gotten better. It`s gotten worse.
The Big Lie has become dogma in the Republican Party. It is the only non- negotiable thing to being a Republican today. And so, I`m very worried.
MENENDEZ: Marc Elias, the best of the best. Thank you so much for being with us. Still ahead, new details on the next January 6 hearing and why there could be even more hearings later this summer. We`ll be right back.
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MENENDEZ: Big news today. The January 6 Committee could call former President Donald Trump and former Vice President Mike Pence to testify. In an interview with the Wall Street Journal, Republican Congressman Adam Kinzinger said the committee could request a written interview with Pence, could also consider issuing a subpoena to compel his testimony. Kinzinger told the journal that the panel is also considering asking the ex-president to appear.
This news comes as we wait for an official announcement of the next hearing the committee plans to hold. It`s reported to be one week from tonight in prime time. So, what do we make of the committee`s movement today and what can we expect in the next hearing?
For answers, I am joined by Danya Perry, former prosecutor and Deputy Attorney General for the state of New York. Matt Miller is the former chief spokesperson for the Department of Justice under Attorney General Eric Holder. It`s good to see you both. Danya, I`m going to start with you. How likely is it for Pence to be called? And how would a subpoena for his testimony work if it did come to that?
DANYA PERRY, FORMER PROSECUTOR: If Adam Kinzinger says likely then I have no reason to disbelieve that, he certainly would have a lot to say and has shown less political courage than I think a lot of Americans would like to see in the aftermath of the January 6 insurrection. And so, the hearings have had a way of prying loose certain witnesses. We just saw Pat Cipollone finally give testimony. And I mean, even Steve Bannon has reported always to want now to speak to the committee although I think we have good reason to be skeptical of that.
But one advantage of these hearings is that as information has come out, it appears that witnesses are looking inward and also outward and wondering which side of history they`d like to be on. So, perhaps the former vice president will testify voluntarily, which I`m sure the committee would prefer. Otherwise, the subpoena would work just as any other subpoena to any other witness would work.
And whether it`s written testimony or it`s recorded testimony, that`s up to the committee and Mr. Pence and his attorneys, but certainly, there are lots —
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MENENDEZ: Danya, when you — when you say written testimony, can you walk us through what that is, how that`s different from the depositions we`re now used to seeing at the hearings?
PERRY: Sure, it`s just another form — it`s the provision of written questions and written answers. I believe, former President Trump did that in connection with some of the Mueller proceedings. It is done less typically than a recorded and oral deposition. And it is just something to be negotiated between the parties.
So, we haven`t seen many of them, or at least we`re not aware of many of them. But it may be that for — you know, that it`s more palatable to the former vice president to provide testimony in that form. And certainly, that`s what Mr. Representative Kinzinger has, has alluded to.
MENENDEZ: Matt Miller, there`s also news broken by the Intercept confirmed by several other outlets that Secret Service messages were deleted after oversight investigators requested them. The agency says it was the result of a “device replacement program,” but I wonder what you make of it. How serious it is?
MATT MILLER, MSNBC ANALYST: It`s very serious. It`s obviously completely indefensible by the Secret Service. I mean, remember that the Secret Service, in addition to protecting the president and other dignitaries, it`s also a law enforcement agency that conducts investigations and demands that subjects under investigation turn over emails and other documents. So, if there`s anyone you ought to expect to honor a document preservation request, it is a law enforcement agency.
Now, we don`t know whether it was a deliberate action or whether it was accidental, whether it was part of some, you know, plan to migrate devices as the — as the Service appears to be saying. I will say based on my time in government, usually when you have to choose between whether it was an act of incompetence or an act of malfeasance, you will never go broke betting on incompetence.
But the bottom line is we don`t know the answer and the inspector general needs to find out the answer. And whichever it is, as I said at the outset, it is completely indefensible. The Secret Service was put on notice that the committee was investigating and wanted access to these records. And they should have preserved them.
And I think it`s the latest and a series of actions from an agency that just shows that despite all the men and women there who do really brave and incredible work, it`s an agency with a deeply flawed culture at this point.
MENENDEZ: Yes, Danya, talk to me about the agency. What does this story tell you?
PERRY: Well, it`s not just sad. It is a gross dereliction of their responsibilities at best. They were under an obligation to maintain those records, and clearly, they did not. So yes, as Matt just said, it could be coincidence. It could also be coincidence that both Jim Comey and his top deputies` records were chosen for audit by the IRS. But if there is a broader pattern here, particularly within the Secret Service, as Matt also just said, that is as representative Raskin said, quite chilling.
Those words that Vice President Pence spoke, I will not get into that car, I`m paraphrasing a bit, because he was concerned that the Secret Service would whisk him off and not allow him to perform his duties counting the electoral votes are is deeply disturbing. It does point to a very troubling pattern within the agency at a minimum.
MENENDEZ: Matt Miller — I`m sorry, I don`t know if you heard the audio at the top, the leaked audio from Steve Bannon sort of talking through his and the President`s plans for post 2020 election. Greg Sargent over at The Washington Post argues that audio is particularly bad for Trump because of the premeditation it shows. I wonder sort of the fact that they were saying all of this out loud in rooms, how much further does it advance a potential prosecution of Trump himself?
MILLER: I think it advances it. I think the important thing we`d want to know is what Steve Bannon said to the former president. Remember we found at the — in the last committee hearing that the two of them did talk. We don`t know what that conversation was about because of course, Steve Bannon defied had subpoenaed to come and testify before the committee.
And I will say one of the things that I think ought to happen going forward, after Steve Bannon is trial ends, if he is convicted, as I suspect he will — you know, as a lawyer in court say he doesn`t have really any defense available to him. If he is convicted, the Department of Justice can then put him in the grand jury and make him testify.
Now, we`ve not seen that sort of aggressive investigation by the department so far. But there certainly ought to be one. And if there is one, Steve Bannon ought to be one of the first witnesses they put in the grand jury to tell exactly what he said to Donald Trump and what Donald Trump said to him.
MENENDEZ: Danya Perry, Matt Miller, thank you both.
That is ALL IN on this Thursday night. I`m going to be back here this weekend with “AMERICAN VOICES” at 6:00 p.m. Eastern. “MSNBC PRIME” starts right now with Mehdi Hasan. Good evening, Mehdi.
MEHDI HASAN, MSNBC HOST: Good evening, Alicia.