Summary
Former adviser to Donald Trump, Steve Bannon has been indicted by a federal jury in contempt of Congress for refusing to comply with a congressional subpoena. Rep. Eric Swalwell (D-CA) is interviewed and answers questions regarding Steve Bannon being indicted for being in contempt. In the end it took less than a month for Steve Bannon to be indicted on contempt charges for refusing to comply with a congressional subpoena. The Biden White House is preparing for a big bipartisan ceremony on Monday to sign the big bipartisan infrastructure bill.
ALI VELSHI, MSNBC HOST: He was fined $25. He died in 1925 with that unjust conviction on his record and the knowledge that Plessy versus Ferguson, separate but equal was the law of the land.
Today we got proof that even though history might take a while to write itself, it usually does. And sometimes in some very surprising ways. An unlikely duo has been working together to clear Mr. Plessy`s name. They are the descendants of Homer Plessy and Judge Ferguson, the judge who ruled against him all those years ago.
Both sides joined together and petitioned the Louisiana Board of Pardons to clear Plessy`s record. And today, almost 125 years after his conviction that board voted unanimously to do the right thing. The pardon now goes to the governor for approval, and finally justice that`s been a long time coming.
That does it for us tonight. Rachel will be back on Monday. Now it`s time for the "Last Word." My friend Jonathan Capeheart is in for Lawrence tonight. Good evening, Jonathan.
JONATHAN CAPEHART, MSNBC HOST: Good evening, Ali. What a great way to end -- to end the show. I didn`t know that story. How fantastic.
VELSHI: We talk about Plessy vs. Ferguson all the time, the idea that Jonathan -- that Plessy never got his justice until today is a -- we don`t often get to end the show on nice things but that was a good one to do it on.
CAPEHART: Yes, and it`s a reminder that justice might take a while but eventually justice does happen. Ali, thank you very, very much. I`ll see you on Sunday.
VELSHI: Have a great show.
CAPEHART: All right. Breaking tonight, a federal grand jury has indicted former Trump advisor Steve Bannon on two counts of contempt of Congress. The indictment comes 22 days after the House of Representatives voted to send a criminal contempt referral to the Justice Department after Bannon refused to comply with subpoenas from the House Select Committee investigating the January 6th attack on the capital seeking deposition testimony and documents from him.
According to the indictment, "Bannon had not communicated with the Select Committee in any way since accepting service of the subpoena on September 24th." Attorney General Merrick Garland and the Department of Justice have been under immense pressure to hold Bannon accountable.
Tonight, Garland said, "Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law."
NBC News is reporting that Bannon is expected to turn himself into law enforcement on Monday. He`s scheduled to appear in court Monday afternoon. Bannon is facing up to one year in prison and a $100,000 fine.
Tonight Select Committee Chairman Benny Thompson and Vice Chair Liz Cheney said, "Steve Bannon`s indictment should send a clear message to anyone who thinks they can ignore the Select Committee or try to stonewall our investigation. No one is above the law. We will not hesitate to use the tools at our disposal to get the information we need."
Select Committee member Jamie Raskin said this about Steve Bannon`s indictment on MSNBC last hour.
(BEGIN VIDEO CLIP)
REP. JAMIE RASKIN (D-MD): Here we pursued criminal contempt and that`s just a crime. It was a criminal offense. He violated the law when he stood us up, when he blew off the subpoena. And he violated the law when he refused to produce the documents and the papers we were looking for.
But at the same time on a parallel track, if we bring a civil contempt action against him, the courts also have the power to compel him to testify and to bring us those documents. And if he doesn`t, he can be held, again, behind bars.
But he has the key to his own freedom as the contempt of bar says because all he has to do is testify and turn over the documents and he can get out of jail on the civil contempt side. But on the criminal contempt side if he`s found guilty he could be sentenced to jail or to probation, work some other kind of diversionary punishment.
(END VIDEO CLIP)
CAPEHART: Leading off our discussion tonight Democratic Congressman Eric Swalwell of California. He served as House Impeachment Manager during the second impeachment -- second impeachment trial of Donald Trump. Congressman Swalwell, welcome back to the "Last Word." You were part of both impeachment investigations in the Trump era. What do you make of this indictment?
REP. ERIC SWALWELL (D-CA): There`s a new sheriff in town, frankly, Jonathan and that the rule of law matters again in America. Look, for the last couple of years Steve Bannon has run around like a thug in a movie where the gang has the police and the local judge in their pocket, and he`s acted as if he could, you know, act with impunity and laws didn`t matter, almost like he was a pirate in international waters. And he never hid the fact that he believed that, really just defying the law.
[22:05:00]
And being pardoned by Donald Trump for bilking many Americans out of their hard earned money when they thought it was going to building the wall. And then, of course, just recently not showing up when he was supposed to for this January 6th committee.
But we`re not seeking this contempt order and we`re not celebrating Steve Bannon, you know, being indicted because he`s a bad guy, and Jonathan, he`s a bad guy. This is important because what happened on January 6th could happen again.
And if we don`t understand who was around the president, who financed what happened on the 6th, what the mind-set of the president was, this will happen again. And so this is, you know, the beginning of getting to the bottom of what happened.
CAPEHART: You know, there was a lot of concern on lots of shows on this network and among a lot of people about the fact that it was "taking too long," taking Attorney General Merrick Garland too long to do what he ended up doing today. Did you think that the attorney general took too long or did he walk through the process at the pace that it needed to be done?
SWALWELL: I didn`t think he took too long, and I was not in the camp that was too worried. I frankly appreciated having an attorney general who was independent again. And I was going to reserve judgment until a decision was made on this, and I think the right call was made.
And now the question is for Mark Meadows and so many other of the president`s enablers on January 6th. Do you want to go the way of Bannon and be indicted and be hauled into court, or do you want to cooperate? And if you don`t want to cooperate, Jonathan, then we should just draw the inference that you`re not cooperating because you`re protecting the guilt of Donald Trump or you`re protecting the guilt of yourself.
CAPEHART: So, Congressman Swalwell, do you think we are putting too much emphasis on this indictment of Bannon? I`m just wondering, does it bode well for the Select Committee investigating, waiting for more testimony and documents in a court ruling on executive privilege that what the Justice Department did to Bannon is going to send this -- really, truly, send the signal that will be heeded by all these other people that got slapped with subpoenas this week.
SWALWELL: Yes, it bodes well for justice. You know, this isn`t about red team versus blue team. This is about whether the rule of law matters anymore and whether people around the former president are above the law or if they have to follow the same laws that you and I have to follow.
And the department signaled today for first time in nearly 40 years that if you defy a congressional subpoena, you will be held to account. And now those dozens of others who have indicated they`re not going to come in or who have not come in, my money is, Jonathan, they`re going to be ringing the phones of the Select Committee over the weekend to try and schedule their appearances.
CAPEHART: You know, last night on "All In," Eric Holder, the former attorney general explained the difference between subpoenaed witnesses not testifying in the January 6th investigation and why he did as attorney general. Let`s listen.
(BEGIN VIDEO CLIP)
ERIC HOLDER, FORMER UNITED STATES ATTORNEY GENERAL: I`ve testified nine times in connection with Fast and Furious, knowing that it was a kangaroo court that I was going before, but out of respect to the institution, out of respect to Congress, I thought that I had to go. In spite of the fact that Darrell Issa, Louie Gohmert and the other idiots on the oversight committee were doing things that were inconsistent with their oaths.
It was all political. I understood that, but I didn`t think as attorney general that I could refuse to go. I didn`t need a subpoena. They didn`t require to request a subpoena. If they asked me to come, I showed up. And, you know, as I said on nine occasions I did that.
(END VIDEO CLIP)
CAPEHART: Do you think that was a consideration for DOJ that this wasn`t a good faith refusal of a subpoena but an attempt to nuke the process?
SWALWELL: Yes. And it was a continuation of what had happened under the prior administration in the Russia investigation when Don McGahn would not cooperate with the Judiciary Committee around what he had seen as far as obstruction of justice by the president in the first impeachment of Donald Trump as it related to the Ukraine scandal.
And of course, in the second impeachment where witnesses told us if we subpoenaed them they wouldn`t come in. So this was the pattern of the Donald Trump administration. And now, again, there`s a sheriff in town that says the rule of law matters.
And this matters, Jonathan, because the temperature is rising in America. We have a Republican Party that believes and is more comfortable with violence than voting. And as we go into the mid-terms, if we don`t have a rule of law that matters, this party who is bankrupt and void of any ideas to make anyone`s life in America better, they will seek to use violence if we don`t inoculate ourselves as Americans and as institutions against what`s coming.
CAPEHART: You know, before I let you go, Congressman Swalwell, given what happened to Steve Bannon today, being indicted. What do you think Mark Meadows, the former White House chief of staff, who was supposed to appear today and didn`t, what do you think is going through his mind right now? What do you think he`ll do?
[22:10:00]
SWALWELL: He`s wondering, what`s the fastest way to get a hold of the Select Committee and schedule his appearance. Again, Mark Meadows, look, there`s no honor for anyone that defies a subpoena. But, you know, Steve Bannon is pretty evil and we dealt with him during the Russia investigation. He was almost like the joker in the Batman movie.
Mark meadows, I`ve dealt with him, too. That guy doesn`t have any principles. He only thinks about himself. I`m not thinking if he`s going to go the way of Bannon. I think he`s going to fold quite quickly and the Select Committee will hear from him probably pretty shortly.
CAPEHART: All right, Congressman Eric Swalwell of California, and also belated congratulations again on baby Hank.
SWALWELL: Oh, thank you. Thanks so much, Jonathan. Have a good night.
CAPEHART: Have a good night. Joining us now are Cynthia Alksne and Glenn Kirschner, both federal former -- former federal prosecutors and MSNBC legal contributors. Welcome back to the "Last Word." Quick reactions from two Justice Department veterans.
Cynthia, I`m going to start with you. Take a look at the deposition calendar for subpoenaed witnesses. Do we have it? Is it going to come up? There it is. If you notice, Cynthia, from November 29th through December 15th with very few exceptions every day there is someone who is due to give -- due to provide deposition testimony in the January 6th Select Committee. Do you expect this indictment of Bannon, do you expect this will expedite cooperation from some of these people?
CYNTHIA ALKSNE, MSNBC LEGAL ANALYST: I do expect that it will expedite cooperation. And that`s really the most important thing about it because who are we kidding? Steve Bannon is never going to give any testimony. He`d rather rot in jail and then later make money and fund raise off of it. So, I don`t think we`re ever going to get testimony from Bannon, but its value was really is to push those people who were on the fence like, do I really want to fight this battle.
The second tiered people, those are the ones that will really make a difference. You know, Kaleigh McEnany is never going to give you anything of any value. Mike Flynn is never going to give you anything of value. But it will push those people who know something about what happened at Willard, who knows something about what happened in the communications between the members of Congress and the White House and what was going on during the insurrection and who paid for the insurrection and who paid for the buses and who paid for all that. It`ll make a difference for them. And that`s why I think it`s really of value today.
CAPEHART: Glenn, Steve Bannon can afford to pay lawyers for as long as it takes, but are other witnesses willing to bear that cost?
GLENN KIRSCHNER, MSNBC LEGAL CONTRIBUITOR: You know, I can`t imagine that now that Steve Bannon has been criminally indicted actually for two counts for contempt of Congress, one for defying their subpoena to produce documents and a second for just thumbing his nose at Congress and declining to even show up. You know, he`s facing up to two years in prison.
So I have to believe that the other witnesses, even people like Stephen Miller whom is scheduled to appear and was yucking it up with one of the hosts of the Fox Entertainment Network the other night, laughing about how, oh, you`re not going to comply. You`re not going to appear pursuant to a Congressional subpoena.
I have a feeling those people are now going to think twice before running the risk of being criminally indicted, tried and ultimately potentially imprisoned. So, I think this will have an important impact on the House Select Committee investigation moving forward.
CAPEHART: I want to get both of you on this, and I`ll start with you, Cynthia. Steve Bannon is arguing for executive privilege as an excuse to not comply with Congress.
And according to the indictment and I`ll read this, "Steven K. Bannon was a private citizen for approximately seven months in 2017, more than three years before the events of January 6th, 2021, Bannon was employed in the executive branch of the U.S. government as the Chief Strategist and counselor to the president. After departing the White House in 2017, Bannon did not work again in any executive branch or federal government position."
So, Cynthia, can Bannon prove his refusal to comply was in good faith using executive -- using the executive privilege argument following the advice of his lawyer?
ALKSNE: I don`t think he can. But before we get too far on that, let me say I think there is an -- there is somewhere in the executive privilege argument for people who work outside the government. I mean, just imagine if Biden decided he was going to ask Obama for some advice and Obama had not been in the White House for a long time. I mean, I think there is room in the executive privilege argument if speaking to somebody outside of government.
[22:15:01]
But that doesn`t apply here. "A," he didn`t show up and assert it. "B," he never followed through when he was supposed to do the documents. "C," he never answered questions about everybody else he had contacts with in the war room.
So, I don`t think it`s going to work here, but I don`t think we can make a blanket statement that whenever anybody isn`t working in the government there can`t be executive privilege.
CAPEHART: And, Glenn, real fast, so, a lot of the people who were given subpoenas this week particularly on Tuesday were people who were working for Donald Trump, who were with him on January 6th when he was still president. Does the executive privilege argument apply to them? Can they exert executive privilege?
KIRSCHNER: You know, the people who were actually in the administration at the time, and you know, during the time of January 6th, you know, they will have a somewhat more viable claim than Steve Bannon. Steve Bannon could have just said I`m invoking magical unicorn privilege and it would be just as compelling as an executive privilege claim.
Not to mention, Jonathan, all of these people including the ones who were in the administration at the time, cannot invoke executive privilege to cover up conversations involving the attempted overthrow of the United States government because that would be very similar to a crime fraud exception.
The executive privilege protection was not designed to be invoked to hide attempts to overthrow the government. I think with today`s indictment, this is virtually the Department of Justice saying to Steve Bannon hey, Steve Bannon, come to D.C. on Monday for your arraignment. We`ll be wiled (ph).
CAPEHART: That was a good one, Glenn. Glenn Kirschner, Cynthia Alksne, thank you both very much for joining us tonight. We have much more on this breaking news coming up.
But first, Donald Trump, of course, sympathizes with the capitol attackers who were chanting to kill Mike Pence. That`s next.
(COMMERCIAL BREAK)
[22:20:00]
CAPEHART: Here`s a quote that will stop you in your tracks. "The Republican Party is mainstreaming menace as a political tool." That`s how historians described it to "The New York Times," but you don`t need scholars telling you that. You can see the menace all around the U.S., against elected officials, school board members and health care professionals.
It`s the growing embrace of Trumpian rhetoric. The kind of rhetoric we saw inside the capitol insurrection. Of course, the fish rots from the head. So, to understand just how bad it`s gotten inside the Republican Party, look no further than their fearless leader, Donald Trump, who we learned today defended the insurrectionists who wanted to kill his own vice president.
(BEGIN AUDIO CLIP)
JONATHAN KARL, ABC NEWS CHIEF WASHINGTON CORRESPONDENT: Were you worried about him during that siege? Were you worried about his safety?
DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES OF AMERICA: No, I thought he was well-protected. And I had heard that he was in good shape. No, because I had heard he was in very good shape. But, but -- no, I think --
KARL: Because you heard those chants, that was terrible. I mean, you know, the --
TRUMP: He could have -- well, the people were very angry.
KARL: They were saying hang Mike Pence.
TRUMP: Because it`s common sense, Jon. It`s common sense that you`re supposed to protect. How can you -- if you know a vote is fraudulent, right, how can you pass on a fraudulent vote to Congress?
(END AUDIO CLIP)
CAPEHART: And joining us now, Maria Theresa Kumar, President and CEO of Voter Latino and an MSNBC contributor. And former Congressman David Jolly. He left the Republican Party in 2018. He`s now the national chairman of the Serve America Movement and an MSNBC political analyst. Welcome both to the "Last Word." David, I`ll start with you. Defending violence, how low will your former party go?
DAVID JOLLY, FORMER REPUBLICAN CONGRESSMAN, LEFT REPUBLICAN PARTY IN 2018: Yes, Jonathan, very importantly, Donald Trump has created a permission structure of violent behavior within today`s Republican Party. And that`s not to say the entire Republican Party, certainly not. But they have invited into the Republican coalition under Donald Trump`s leadership largely white, largely male right-wing sympathetic extremists that the Department of Homeland Security and our domestic intelligence agencies have identified as a domestic violent threat.
And so what you see in those conversations with Jonathan Karl and otherwise is not simply a former president making it all about himself suggesting that there are constitutional scholars who wrongly think that the election was stolen from Donald Trump, but what you see is somebody refusing to condemn that the potential hanging of the vice president, and in doing so, extends this permission structure towards further violence.
And I think that`s the greatest concern is what our federal agencies have identified that we could see additional violence and perhaps even the loss of life as a result of rhetoric and the permission structure created by Donald Trump.
CAPEHART: Right. And Maria Theresa, I know, you know, I don`t want to, you know, down-play what Donald Trump is doing because it`s reprehensible, but you know who shouldn`t be left off the hook? Kevin McCarthy. I would just love to know your thinking on The House Minority Leader, the leader of the Republican conference in the House and the incredible silence we have heard from him after this week, after Paul Gosar, after Marjorie Taylor Green calling the 13 Republican members who voted for the bipartisan infrastructure bill traitors. He said nothing. Doesn`t that add to the permission structure that David is rightly warning about?
MARIA TERESA KUMAR, VOTO LATINA, PRESIDENT & CEO: Absolutely. And if you look at Kevin McCarthy, his own act, his own words, he peddles in this violence. He jokingly said that he was going to throw a gavel at Pelosi the moment that he became speaker. And it sounds funny, but this is not -- has the qualms (ph).
[22:24:59]
This is more past the more saying you are signaling what is acceptable. And this whole idea of creating and using words against your fellow colleagues would not be acceptable, Jonathan, in any other workplace. And we do not have to look too far in our past to recognize that when violence is used online it does translate into tragedy.
We only have to think of what happened in El Paso. We only have to think of sadly what happened in the Tree of Life synagogue, and the list goes on in short order of what happened when Donald Trump did the exact same thing.
And every single person that has created such chaos and created the most recent memory of violence has cited reading and be inspired by what Donald Trump said on his social platforms. And so, it really is on the leadership of the Republican Party to say this is not acceptable because the moment you`re no longer talking about policy and discourse, it becomes an erosion of democracy and a due erosion of trust.
CAPEHART: David, I want to show you some polling data that is scary. Polling finds that 30 percent of Republicans and 40 percent of people who most trust far right news sources believe that "true patriots may have to resort to violence" to "save the country." What do you fear could happen as we approach 2022 and 2024?
JOLLY: Here`s my great fear about where the Republican Party has gone, Jonathan. It`s a very important nuance. You know, from recent history the debate between the two major parties has been over essentially fairness and policy, whether ladders of opportunity are elevating people or taking away from others, marginal tax code, education, whatever it might be.
Today`s Republican Party particularly under Donald Trump, supported by McConnell and McCarthy and others is now suggesting to -- to their voters that something is being taken from you. Your freedom is being taken from you. Your place in society, your privilege. Something is being taken from you.
And once that narrative sets in, then that gives you permission to do whatever it takes to protect yourself. And that is the power that Donald Trump and today`s Republicans have tapped into. And to Maria Teresa`s point, it is up to Kevin McCarthy and other Republican leaders to say no, that is not the direction of this party. But they haven`t chosen to stand up to this. And that`s why the scoring goes beyond Donald Trump, but to the entire architecture of today`s Republicans in Washington.
CAPEHART: Right. And Maria Teresa, the GOP hasn`t really seen a backlash to the extremist tone at least not at the polls. So, do you think there will ever be an incentive to change?
KUMAR: I think that when you see what David Jolly has done, what Steve Schmidt has done, when individuals that are part of the Republican Party who are trying to sound the alarm and saying we are no longer talking about policy, we are talking about cultural ideology that is not part of our traditional political spectrum, that is what we have to elevate.
The idea you have so many Republicans that have been historic Republicans saying this is not the party I identify with, you know, leaving the party, I`m no longer running for office, we should sound the alarm bell. We are no longer talking about what is the difference between the left and the right.
We are talking about what is democracy and what is autocracy. And sadly, Kevin McCarthy by staying silent, Mitch McConnell by staying silent, they are espousing autocracy at all costs. And that is not only anti-Democratic, but in the beginning it may sound like it`s a nice idea for a few and the powerful.
But when that comes to roost at your doorstep, then it`s going to be harmful not just for the minority rule but for the majority of Americans. And that is really what we`re facing right now.
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Transcript: The Last Word with Lawrence O'Donnell, 11/12/21 - MSNBC