Summary
Among the documents seized by the FBI from Mar-a-Lago was a document describing a foreign government`s military defenses, including its nuclear capabilities. The legal counsel to Steve Bannon says he is en route to surrender in New York. Bannon is facing state charges for his border wall scam. Barack and Michelle Obama are back at the White House for their unveiling of the official portraits. All 50 State Supreme Court Chief Justices file a brief with SCOTUS opposing the radical GOP`s independent state legislature theory. Israel releases findings in Shireen Abu Akleh investigation. Republican candidates are backtracking on their abortion stand.
Transcript
JOY REID, MSNBC HOST: Drinking water should be an issue for everyone in Mississippi. And for God`s sake, they should care about their own capital. EPA Administrator Michael Regan, I really do appreciate you being here. Thank you for all you`re doing and I appreciate you. And please come back.
All right, everyone, that`s a wrap. I hope you guys enjoyed the Obama and Biden coming together today. I know I sure did. That is tonight`s "REIDOUT". ALL IN WITH CHRIS HAYES starts right now.
CHRIS HAYES, MSNBC HOST: Good evening from New York. I`m Chris Hayes. The full scope of Donald Trump`s purloined stash of classified documents keeps growing day by day. We`ve now of course learned that among the documents seized by the FBI from Mar-a-Lago was "A document describing a foreign government`s military defenses, including its nuclear capabilities." That`s according to The Washington Post citing sources familiar with the matter.
The Post also notes "Some of the seized documents detailed Top Secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president and some members of his cabinet or a near cabinet-level official could authorize other government officials to know details of these Special Access Programs.
Now, Trump`s fellow Republicans would already stuck their neck out for him without knowing all the facts, always dangerous, were left exposed, struggling to explain why it was actually fine that the ex-President kept nuclear documents in the basement of his Florida Country Club.
(BEGIN VIDEO CLIP)
REP. MIKE TURNER (R-OH): It depends on what the nuclear information is. You can say nuclear weapons, but there are things that are highly, highly classified. There`s things that are not extremely classified, but are nonetheless classified. The other aspect with respect to access is we don`t know what those documents are.
(END VIDEO CLIP)
HAYES: So, the Washington Post, right, had previously reported last month that investigators were looking for information related to nuclear programs and the search for Mar-a-Lago. That`s what Congressman Turner was responding to there. But again, at the time, it was unclear if the FBI had actually found what they`re looking for.
The initial report was a pretty massive deal, hence the response from Turner there. But then things quieted down for a little while. And again, all the Washington Post previously reported was they were looking for nuclear docs. Trump, of course, did what he does best, he used an information vacuum to try and shift the discussion, in this case, appearing to outright lie.
Back on August 12, the ex-president took to the MAGA Twitter knockoffs to declare "Nuclear weapons issue was a hoax." Incidentally, that`s the same post where he suggested the FBI planted documents at Mar-a-Lago, an excuse which he seems to have dropped in recent weeks. Now, at least according to The Washington Post, we know it was not a hoax. And even with a month to repair, Republicans are still struggling to respond to these latest allegations.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Do you think it`s appropriate the way that the former president was storing those top secret and classified documents at his private estate at Mar-a-Lago?
SEN. MITCH MCCONNELL (R-KY): Yes, I don`t really have any comments on this. This whole investigation has been dominating the news for the last month. I think we`re following it like all of you are.
UNIDENTIFIED MALE: These are classified documents, Mr. Leader. I mean, that`s important. You don`t have any comment on that?
(END VIDEO CLIP)
HAYES: Just sitting here following it all like you. I mean, I`m Mitch McConnell. I`m basically just a dude. Now, the revelations comedy pivotal moment for the investigation into those stolen documents. This week, in a widely criticized and ridiculed ruling, a Trump-appointed federal judge in Florida bent over backwards to accommodate Trump`s late request for so- called Special Master to review the documents seized by the DOJ weeks ago.
Now, she even went further. She did something that almost no one had ever heard of which is she enjoined the FBI from investigating. She ordered them, you have to stop investigating. Many legal observers point out that decision which seems detached from reality and law, could also harm investigators attempts to do a damage assessment even though she said OK, yes, you can do that part of it.
And on the point of the damage assessment, it should not be forgotten that Trump taking these documents is a massive breach of federal secrets. It has to be, at least as far as we know, probably the biggest since the Edward Snowden case, the former NSA contractor leaked tens of thousands of documents, and he did it to blow the whistle on what he viewed as immoral, illegal surveillance campaign by the federal government.
Now, Snowden was ideologically motivated. Whatever you think of him, his motive was pretty clear. He also did it kind of out in the open. I mean, we know he was doing it. We have no idea why Donald Trump took these documents, or why he apparently refused to give them back, or why he apparently lied to investigators about getting it back, or why you had his lawyer sign a document saying you have all of them but didn`t actually give them all.
We don`t even know what these documents are. Just that they are reportedly among some of the most closely held secrets our country has. We also don`t yet know what the damage to the nation`s security might be as a result of Trump`s actions.
Olivia Troye served as Homeland Security Adviser to former Vice President Mike Pence. Glenn Gerstell is -- served as the General Counsel at the National Security Agency from 2015 to 2020. They both join me now. Glenn, let me start with you on this kind of damage assessment aspect.
[20:05:19]
GLENN GERSTELL, FORMER GENERAL COUNSEL, NATIONAL SECURITY AGENCY: Sure.
HAYES: What`s your reaction, given your experience to the reporting about this particular document, but also, what must be going on right now as people inside the Intelligence Community try to figure out what got out where, it is, and who might have seen it?
GERSTELL: Thanks, Chris. You`ve addressed absolutely the key issue that the Intelligence Community must deal with first. We need to find out what was in the classified documents, both in terms of their substance so we can see what secrets might possibly have been compromised, as well as the sources and methods. How did we find out about that particular information?
So, these comments about -- that you alluded to earlier in the program about, well, maybe the documents aren`t all that important, that the secrets aren`t all that big a deal, in some cases, that might even be true. But what may be really secret is how we found out that information, what networks were penetrated, what telephone systems were accessed. Maybe that`s the real part of the secret.
So, the first test -- the first task, rather, is for our Intelligence Committee to find out what was in the documents, and then figure out if there`s any way of reaching a conclusion that we`re -- we feel comfortable that no one had access to them. And that sounds like a really difficult problem. That`s made even worse by the fact that in some cases, we`re not even sure what documents may be missing from these files.
HAYES: I want to follow up on that in a second. Olivia, I want to get to you, though, next about Congressman Mike Turner who`s on the Intel Committee as you saw. And, you know, I got to imagine Republican politicians and officials who work in national security who have clearance who take it seriously and there are many of them, privately are pretty aghast at this because everyone that I`ve spoken to in that world is pretty freaked out, pretty aghast.
And they`re not going to come out and say it. But the McConnell non common today seemed to me to indicate he at least understands it`s not very smart to go out on the limb defending what happened here.
OLIVIA TROYE, FORMER HOMELAND SECURITY ADVISER TO FORMER VICE PRESIDENT MIKE PENCE: Absolutely. Anyone who has worked near, anywhere near the national security apparatus or understand the Intelligence Community at any length understand that this is a horrifying situation that puts potentially lives at risk and puts, honestly, the lives of all Americans at risk. We have no idea what was in those documents.
And it also puts or intelligence sharing with partners, foreign nation partners at risk because why would they ever trust us again when they`re watching this? I mean, it`s a complete embarrassment for our country on the world stage.
HAYES: Glenn, you talked about getting a handle on what there is. Now, clearly, there was some indication -- it seemed clear to me that some folks inside the intelligence community had an idea of what might be out there when they kept trying to get some back, right? So, Trump gives them finally in January a bunch of boxes, they`re kind of freaked out by that. They refer to the FBI. They send the Chief of Counterintelligence down there who gets another 38 documents. Then they serve the warrant, right? This is all -- you know, they keep ratcheting up.
My question to you is, is there some list somewhere the way that like, you know, a company knows how many laptops they`ve got to their employees with the serial numbers of like, what`s out there floating around?
GERSTELL: It would certainly be nice if there was such a list, but there isn`t. And that`s one of the scariest aspects of this entire affair, which is, in the case of the documents that we know that have been retrieved in the various times, we can take a look at them and make an assessment, make a judgment of just how bad is this, and make a decision as to whether we need to change codes, whether we need to pull agents out of a foreign country, or what we need to do in response to that.
But in the case of documents that are missing, we really don`t have a handle on that. It`s unknowable. We don`t know what`s missing. And that`s the most serious part of this problem here because it`s just completely unknowable. And, you know, if I lose my wallet, and I`m not really sure exactly what`s in my wallet, well, OK, I could cancel all my credit cards and just assume that maybe they`re all at risk. But when I don`t even know what`s missing, it`s a different problem.
HAYES: Yes. That strikes me as a very different problem. I mean, there`s also the question now, Olivia, I have avoided pretty assiduously the question of motive because it doesn`t strike me as particularly relevant for the legal ramifications or even really the national security ramifications, though, I think it starts to become irrelevant, but at a certain point, it is the elephant in the room.
This wasn`t haphazard. This wasn`t just like, I was packing fast. This is hundreds of documents, some of the most closely held secrets that was -- he was deceptive about it, he lied about it he refused a subpoena about it, they got himself -- like, why, why, why? And I -- you know, I don`t know -- you don`t necessarily have any insight of this, but it does seem like we got to get to the motive at some point.
[20:10:22]
TROYE: Right. And it`s hard to know. Is it -- are these just souvenirs to say, oh, show and tell? That`s bad enough, right, as he`s sitting at dinner talking about it, as he showing them off? Is he -- I mean, just think about that scenario, right, when he`s sitting there, because that`s who Donald Trump is. Secondly, like, where did these documents go? And were they sold to someone? Were they being used as leverage?
These are all the questions that goes through my mind, especially when it comes to the fact that we now know that there was nuclear information related to a foreign country. And I`m sure that those countries right now, let`s think about Israel. Let`s think about them sitting there right now wondering where that went, who knows about it? Is it theirs? Did they share it? Did they not share it? Did we acquire it through subdomains? I mean, there are so many questions here.
And let`s think about the Saudis. Jared Kushner is very close to the Saudis, the Trump administration. There were a lot of ties there that happened during -- that I heard, that I was there for internally, and saw. You know, I covered counterterrorism and Middle East politics at times because they were related to counterterrorism issues. And I certainly know the people that covered that topic.
So, I mean, when I think about this, I think what was the point of this? Why? Why would you take these documents. And this group of people, they do this in a very calculated matter. We`ve all seen this. We`ve seen how they behave. So, they`re certainly -- I just hope that we get to the bottom of this and that there is -- the damage is minimal and not as grave as what many of us probably believe it to be.
HAYES: Yes. I have this image of, you know, Donald Trump`s sliding into the ballroom at Mar-a-Lago where a young couple has booked it for a wedding, which he would often do, and just sort of like pulling out the folded piece of paper to the bride and being like you want to see with the Israelis launched -- have their nukes? I mean, completely possible, you know what I mean? If that`s the case, 100 percent would believe it.
Olivia Troy, Glenn Gerstell, thank you both.
OK, this is the part of the show where I give you a quick glimpse into the story we`re going to cover next. It`s called a tease. And here`s tonight`s tease. Are you ready? Up next, new details on Steve Bannon`s surrender to authorities. I think a mistake for that one. See on the flip side.
(COMMERCIAL BREAK)
[20:15:00]
HAYES: Among the 100 plus people that Donald Trump granted clemency to during his final hours in office, a fact that I had a sort of memory hold a little bit, to be honest, was his one-time campaign chairman, later White House adviser Steve Bannon. Now, Bannon was arrested by federal agents back in the summer of 2020 accused of defrauding Trump supporters. These are -- these are diehard Trump-loving donors, defrauded them out of millions of dollars.
Donors believed they were giving money towards the construction of a wall along the Mexican border to fulfill the promise that Trump had not. And the money didn`t do that. But then Trump came along, wipe Bannon`s charges away with the stroke of a pen as he is empowered to do by the U.S. Constitution, clearing the way for Bannon to take on a new role, which is -- was key sponsor of Trump`s attempted coup, or at least he was doing that while Trump was preparing to wipe it away.
Now, Bannon may be back in legal jeopardy reportedly for the same crime this time under a state indictment, New York State, by the Manhattan district attorney. According to The Washington Post, "The precise details of the state case could not be confirmed. The people familiar with the situation suggests the prosecution will likely mirror aspects of the federal case in which he was pardoned.
In a statement, Bannon said the district attorney was pushed suing "phony charges," adding "I have not yet begun to fight." But just a short time ago, CNBC got word from Benton`s lawyer that he was, "in route to surrender." Lots of questions about what we`re expecting to play out tomorrow. I`m glad to have two experts with me at the table to talk about it.
Rebecca Roiphe is a former Manhattan district attorney. And Charles Coleman is a former Brooklyn Assistant District Attorney. And they both join me now. It`s good to have you both here. Rebecca, let me start with you as someone who worked as assistant district attorney in Manhattan, which I think is going to be prosecuting this case.
The big question here is double jeopardy, right? The Constitution bars you being tried twice for the same crime. Obviously, there`s different jurisdictions. What is the constitutional lay of the land about the feasibility of this prosecution?
REBECCA ROIPHE, FORMER MANHATTAN DISTRICT ATTORNEY: Right. So I think the legal issues are not as complicated as they were. For instance, when Paul Manafort faced charges in federal court and state court. First of all, because Steve Bannon wasn`t actually convicted, he was pardoned before he was convicted in federal court. And second of all, because the law in New York has subsequently changed basically closing up a loophole that New York had previously created for somebody who had been pardoned and using that for double jeopardy.
So, normally, a state and a federal charge wouldn`t be considered double jeopardy, but New York had fairly strong laws suggested that it would. Now, they don`t have those same laws.
HAYES: In terms of the strength of the case, there were two other people that were arrested and tried by the federal government, Department of Justice, for their role in this scheme. Both of them have pleaded guilty, which, you know, if I were Bannon, that would not augur well for me, I would imagine.
CHARLES COLEMAN, FORMER BROOKLYN ASSISTANT DISTRICT ATTORNEY: Absolutely, Chris. You know, prosecutors are among the most underappreciated and maligned group to public servants. And Alvin Bragg was in the public eye if you recall a while back when the Donald Trump investigation cooled. and he was taking a lot of heat, some of them from his own ADAs about not continuing with the investigation.
What we`re seeing here is the fact that D.A. Bragg understands there are multiple routes to justice. And what he`s doing, in this case, is going after, in a very strong way, people who are associated with Trump for things that they did, and he`s holding them accountable. The fact that there were two other people connected to this case, who were convicted is clear evidence, if you will, that there`s a strong case and that there`s something there. Where there`s smoke, there`s fire.
And so, regardless of the public persona and the posturing that Steve Bannon is actually doing in public, he has to understand that he`s facing a very serious uphill legal battle with respect to these potential charges.
[20:20:45]
HAYES: It`s very weird to me his posture. I mean, obviously, he -- I think he thinks it`s good for his bottom line. I don`t know if anyone`s told him that you can`t podcast in prison and they only give you one shirt not two. But you know, he`s already facing like the possibility of time in prison for his conviction in criminal contempt where he refused. I mean, he could have gotten it and just said, fifth, fifth, fifth, fifth, fifth like Michael Flynn did. He could have tried to, like, litigate something.
He could basically just said, like, go take a long walk off a short pier to Congress, and he was convicted by a jury of his peers. He`s now facing sentencing for that, right?
ROIPHE: Yes, completely. And I mean, I think part of what`s happening here is that there`s a political battle to be won, and there`s a legal battle to be won. And these people are fighting the political battle and ignoring the legal battle, potentially, because the legal battle is one that they are not going to win that he is just, you know, dead to -- dead, to words there.
And so, he`s essentially trying to play this in the public, but ultimately, he`s going to have to face a judge and a jury, and you know, whatever he`s doing in public isn`t going to work for him anymore.
COLEMAN: Well, Chris, if I may, on that point, a big part of the Trump playbook and anyone associated with him, particularly Steve Bannon is narrative control.
HAYES: Yes, right.
COLEMAN: Because they know that with respect to mainstream media, if you will, their supporters, their followers, they`re not following that. They`re getting information straight from them. And so, the idea of being able to control this public narrative and say, look, this is the weaponized justice system that has been politicized ---
HAYES: Totally.
COLEMAN: -- 60 days before election, it`s right out of their playbook.
HAYES: Right. And I think -- I mean, what`s weird about this is -- and again, I don`t I don`t really care one way or the other about what Steve Bannon`s fate is, but you know, yes, I mean, I think he`s probably, you know, he issued this preposterous statement that it looks like it was like written by a Bond villain or something. It just seems to me that, right, you can probably raise a bunch of money off your, you know, your devoted podcast fan base, but at a certain point, like, that`s not going to work. Like, Steve Bannon, like, I don`t think you really want to go to jail in New York State.
ROIPHE: Right.
HAYES: Am I wrong? I don`t know. Maybe he really does. But I don`t think you do.
ROIPHE: Right. I mean, I think that there`s just a complete denial of what this is actually doing. And I also think that narrative about the, you know, weaponization of the -- of prosecution is working less and less. And this is the bread and butter of local DA`s office. This is a straightforward fraud case. And so, it becomes harder and harder to claim that this is politically motivated when what you`re accused of doing is just theft.
HAYES: Also, we should note, the victims here are ardent, diehard Trump supporters who gave money to an organization called We Build The Wall. Another legal development today that I wanted to get you guys -- just your thoughts on. This involves a federal investigation, of course, federal criminal investigation.
We know that there`s a grand jury in Washington, D.C. that`s investigating January 6. We know some of the people that have come before to testify, including Marc Short, chief staff of Mike Pence. We know that Pat Cipollone came last week, of course, the president`s -- today, we got this interesting kind of incremental development at the New York Times that FBI agents in Florida tried to interview William S. Russell who served as a special assistant and the deputy director of advance in the White House and continue to work for Mr. Trump as a personal aide after he left office.
Now, this is someone who doesn`t -- isn`t as high on the org chart as the White House Counsel, but presumably as someone who`s like, very close and around Donald Trump all the time. What do you think of that?
COLEMAN: I think that for prosecutors, for investigators, for the committee, it is a win-win. And it`s a win-win because you`re not going to have the barriers and the obstacles of executive privilege or attorney- client privilege that have held up some of the questioning with respect to the committee in the investigation in the past. This is someone who doesn`t have a privilege but has all the information because they were just as close to Donald Trump as anyone else.
So, they can talk about what he knew. They can talk about what he said. They can talk about what he did. And there is no barrier to prevent them from giving that information.
HAYES: I hadn`t thought about that. Interesting.
ROIPHE: I think that`s right. And I also think that, you know, the people who have the most information are not always the people who are the highest step. I mean, there`s a lot of ways to --
HAYES: Yes. Cassidy Hutchinson who was not super high in the org chart.
ROIPHE: And you know, when you`re a prosecutor, you can get value -- really valuable pieces of information. And often it`s connecting dots, but sometimes it`s vital information for a prosecution that comes from somebody like a secretary.
HAYES: I mean, I just don`t -- look, I`ve said this before on the show. You know, probability, you know, the odds of independent things happening, right, to get two things to happen independently, right? Like, it`s greater odds, you multiply them. It`s like the odds are just skating out of all the various traps. Whether your Bannon who now is like staring down the barrel of sentencing on a criminal contempt and is now turning himself into a prosecution New York state where Donald Trump was facing, like, stolen documents he was in possession of. And he`s also got this January 6. Like, both of them, I would not be in -- I would not be feeling particularly confident.
[20:25:37]
COLEMAN: You know, as a lawyer, we are taught very, very seldom do we make predictions or strong predictions. But we were talking during the break, and I feel very comfortable saying this. Steve Bannon is going to jail one way or the other.
HAYES: You really think that?
COLEMAN: Yes, I do believe so.
HAYES: Well, I mean, I think he`s going to get sentenced in the -- in the contempt case Either way, so yes.
COLEMAN: Exactly. He`s going to jail for something. Either it is going to be because of this contempt case, as well as the case in Manhattan, or a combination of both. The options and the walls are just becoming so slim and closing in so fast that he really does not have any recourse from a legal place.
HAYES: What do you think?
ROIPHE: Yes, I agree with that. I mean, you know, I don`t know where the fraud case is going to go. And with the fraud prosecution, you don`t -- you never want to take odds because there`s always a question of intent. We don`t know what they have. But if it was a strong federal case, then it`s a strong state case. These are basically the same conduct. They`re overlapping laws. And so, you know, I think that since the federal government felt confident about bringing these charges, I think it`s probably likely that they have a pretty good case in Manhattan as well.
HAYES: Yes. You also wonder if Brian Kolfage who was the disabled vet who is implicated in this and who pleaded guilty and is going to be set to be sentenced in December might be talking. It would be interesting to see that. Rebecca Roiphe, Charles Coleman, thank you. That was great.
Still ahead, he is the most important Republican you`ve never heard of, or at least until we`ve started talking about him maybe. How one man is threatening American democracy as we know it, next.
(COMMERCIAL BREAK)
[20:30:00]
(BEGIN VIDEO CLIP)
MICHELLE OBAMA, FORMER FIRST LADY, UNITED STATES: Traditions like this matter, not just for those of us who hold these positions, but for everyone participating in and watching our democracy. You see the people, they make their voices heard with their vote, we hold an inauguration to ensure a peaceful transition of power. Those of us lucky enough to serve work, as Barack said, as hard as we can for as long as we can as long as the people choose to keep us here. And once our time is up, we move on.
(END VIDEO CLIP)
HAYES: Former First Lady Michelle Obama and her husband, the Former President, were at the White House today for the unveiling of their official portraits. Now, that ceremony probably should have happened a few years ago. It was delayed because Donald Trump just chose not to host the Obamas despite the long-standing bipartisan tradition of doing so.
What the former First Lady said about democracy is particularly important as a notably, virulently anti-democratic movement takes root on the political right. And a particular threat of that movement larger than even Donald Trump -- and I know that`s crazy thing to say -- is a bizarre fringe idea that conservatives started warming up to after they lost the 2020 election, called the Independent State Legislature Theory. `
It was an idea infamously pushed by coup memo author John Eastman and his allies in Congress which basically says state legislatures, according to U.S. Constitution, are the ultimate final arbiters of how elections are running the state. They have, as Eastman like to say, plenary power, absolute power. The government doesn`t matter. The Secretary of State doesn`t matter. The State Supreme Court that interprets the election law and the state constitution doesn`t matter. None of it matters. Only the state legislature regulates the rules of federal elections, which in its most extreme form, would mean the Wisconsin legislature, which we discussed last night, wildly gerrymandered, could just decide it wanted to give its electors to Donald Trump, even though state law and the state Constitution required to give those electors to the winner of the popular vote in the state, but they can just say, no, we don`t want to do that.
Now, this was quite famously one of the crank theories coup lawyer John Eastman was proposing to help Trump pull off its coup. And it is a loaded gun aimed directly at the heart of American`s self-governance. It`s now set to be heard by the Supreme Court in the upcoming turn in a case from North Carolina called Moore V. Harper.
Essentially, North Carolina Republicans are upset that the State Supreme Court threw out their wildly gerrymandered congressional districts. And they want the U.S. Supreme Court to reverse the decision based on the independent state legislature theory which is that the State Supreme Court doesn`t have any power over them.
The theory is being boosted by a conservative group called the, sirens, Honest Elections Project. And when you hear that, you know what you`re getting. It is filed what is known as an amicus brief trying to sway the court. And the group is backed by none other than this man you see here, the infamous Leonard Leo. You may remember him as the guy who had a role in stacking the court with each and every conservative Supreme Court Justice seat on the bench. He is the same guy who, as we featured on the show, was just handed $1.6 billion in tax-free, untraceable dark money, a transaction that was of course itself made legal impossible by the right-wing court he helped bring about.
And now, the organization linked to Leonard Leo, will help argue to justices Leonard Leo helped install about why the legislature of North Carolina should just be able to do whatever it wants to the state`s elections, regardless of democracy.
Rick Hasen is Professor of Law at UCLA School of Law, director of the Safeguarding Democracy Project. And he joins me now. Rick, first, did I get anything wrong there since this is -- it`s a fairly technical uncomplicated case? The theory is kind of bizarre, so please correct me if I misstated anything.
[20:35:30]
RICK HASEN, LAW PROFESSOR, UCLA SCHOOL OF LAW: No, I think you basically stated the right thing. I would just say that even some of the more extreme versions of the independent state legislature theory would not support what John Eastman was trying to do, which was to say, even after the legislature had chosen, we`re going to have a popular vote for president, yes, you could take that back and start it over. So, that`s more extreme. And I didn`t see any of the amicus briefs going quite that far, even John Eastman`s brief.
John Eastman, himself filed a brief on behalf of Claremont Institute`s Constitutional Center in this case as well.
HAYES: OK, that`s important, right? The Eastman theory was so -- was out past even the realm of this sort of radical position here. But it would -- if enough of the Court were to side with the North Carolina Republicans here and with Leonard Leo`s group, what would the implications be for American democracy?
HASEN: Well, first, they`d be pretty dire, even putting aside the potential for election subversion, right? It means that state Supreme Courts couldn`t apply the state constitution to limit the state legislature from violating people`s voting rights. It would empower two bodies. One, it was empowering -- it would empower state legislatures. they could run roughshod over electro administrators over you know, all state actors. So they would be empowered.
And the other one it would empower is the United States Supreme Court because it would turn every dispute about what an election law means in a state as applied to a federal election into a federal constitutional question. And the ultimate arbiter of that is, of course, the U.S. Supreme Court. So, it`s this kind of feedback loop where the court is not only giving more power to state legislators, it would be giving more power to itself.
HAYES: And it`s -- yes. And we should note here, like, you know, often there`s sort of arguments about states` rights or deference to the states, and there`s, you know, conservative attacks on the overuse of the Commerce Clause in the U.S. Constitution for the federal government to overly regulate the states. Here, they`re doing something very scalpeled, right, very fine edge. It`s like, well, the institutions we think have the power here are the state legislators, but not the State Supreme Courts. We like the legislators, because we -- there are people and not the Supreme Courts. But then also the U.S. Supreme Court, because we like that one too.
Like, it does look like a theory reverse engineered around the institutional strength of conservatives and the Republican Party.
HASEN: That`s absolutely true. And you know, one of the things the elections clause in the Constitution, Article One, Section Four, if you want to look it up, says that state legislatures get to set the manner for conducting congressional elections subject to congressional override.
Now, nobody thinks it`s an independent Congress theory where Congress can just go out and act without the president, you know, signing a bill or that the Congress is not constrained by the federal constitution. But it does recognize a role for Congress and Missouri. Jay Ashcroft, the secretary of state of Missouri filed a brief that went even further than the Honest Elections Project brief. He says that not even Congress can act.
And he`s got this theory that only state legislators can act. They`re the only ones. And he said, could you imagine if they could turn a seven Republican, one Democratic district into a 4-4 district, four Democrats, four Republicans? That was the parade of horribles he was offering, which kind of tells you what the mindset is right there.
HAYES: I mean, as historical matter, it`s ludicrous that this is what the original public meaning of the 14th Amendment at least as it -- you know, as it pertains here or anything having to do with the Reconstruction Amendments were when they talked about voting, right? Like, they understood that they were giving the federal government power to do a lot of this stuff.
There`s also -- there`s also a fascinating amicus brief that I want to feature as well which is a very strange and rare one, which is all of the Chief Justices of each state in the union, all 50 states -- so this includes like Mississippi, and Alabama, and New York, and California, the full gamut of the politics of this great nation, all unanimously filing an amicus brief saying this is nonsense, absolutely don`t do this, right?
HASEN: Right. So, this is a conference of chief justices. They don`t find a lot of briefs. This one was approved by a committee of Chief Justices from I think all from red states. And they see this as just completely unworkable. Because if what the courts going to say is, well, you can apply, you know, a clear part of the state constitution but not an unclear part, there`s just going to be, you know, a ton of litigation in federal courts and state courts that`s going to put the federal courts and state courts on a collision path.
They see this as unnecessary and also just not the way we normally think about state legislatures that they are creatures of the state constitution. The state constitution creates them and limits them. This is this idea that they`ve kind of this free-floating entity that exists on its own that have limitless power. And the Chief Justices, although they filed the brief on behalf of neither party, it`s very clear that they are not supporting the theory that the North Carolina legislators have put forward here.
[20:40:40]
HAYES: Finally, you know, that there was an earlier case in which this was raised in some of the post-election litigation in which three justices, I believe it was Alito, Thomas, and Gorsuch indicated some interest in this. How do you see the receptivity of this court to this?
HASEN: So, the three of them expresses great interest in it, I would be surprised if they didn`t take on a maximalist view. Justice Kavanaugh is what I would call independent state legislature theory curious. And so, the real question is, where`s the Chief Justice and where is Justice Kavanaugh? And there, you know, it`s not just about the text and original public meaning, it`s also about the burden this will put on the court and how it would undermine both confidence in elections and confidence in the judiciary.
Remember, the judiciary -- the judiciary took a big hit after the Dobbs case came out. So, there`s a lot of institutional legitimacy arriving on the line here in terms of how the court decides this case as well.
HAYES: All right, Rick Hasen, thank you. That was really, really, really clarifying. I appreciate it.
HASEN: Thank you.
HAYES: Still to come, after spending half a century working to overturn Roe v Wade to criminalize abortion, make it illegal and unlawful, suddenly, some Republicans can`t wait to talk about anything but. The latest candidate attempting a political U-turn next.
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HAYES: When American Palestinian journalist Shireen Abu Akleh was shot and killed in May of this year, people across the U.S. and the Middle East erupted in grief. Shireen was a beloved icon, a household name in the Arab world. She was a veteran journalist who covered the Israeli-Palestinian conflict on the frontlines for 25 years.
And on May 11, she was doing that again, she was in the West Bank covering an Israeli Defense Forces raid on the Jenin Refugee Camp. Abu Akleh was wearing a helmet and a protective vest labeling her as a member of the press when shots rang out and she was struck in the head. At the time, eyewitnesses including fellow journalists who are with her in Jenin said that they believe she was shot by an Israeli soldier. They also said that there were no Palestinian fighters present in the area contrary to Israeli claims that both sides were under fire before Abu Akleh was shot.
Now, Israeli officials said that it was not immediately clear who fired the bullet but it was possible that a Palestinian gunman had. U.S. officials were deferential to the Israeli, supporting an investigation by their military. Others, including Shireen Abu Akleh`s family called for an independent probe.
Well now, almost four months later, the Israeli military has finally announced its findings. They admit that the account given by the eyewitnesses at the time and then subsequently by multiple news outlets that investigated the shooting was likely correct. According to the Israeli military, there is a "high probability an Israeli soldier shot and killed Shireen Abu Akleh.
They say it was a mistake with an official telling the Associated Press the soldier "misidentified her." The military has turned over its findings to Israel`s chief prosecutor who "was satisfied with them and decided against a criminal investigation." That means no one will face charges for Shireen Abu Akleh`s death.
Here in the U.S., the State Department has responded with suggestion that Israel review its rules of engagement.
(BEGIN VIDEO CLIP)
VEDANT PATEL, PRINCIPAL DEPUTY SPOKESPERSON, U.S. DEPARTMENT OF STATE: We continue to raise directly with Israel that closely review its policies and practices on the rules of engagement to take additional steps to mitigate risks to protect journalists, to protect civilian harm, and to ensure that similar tragedies don`t happen in the future.
(END VIDEO CLIP)
Shireen Abu Akleh`s family who have been calling for independent investigation and accountability for their slain family member from the very beginning are angry about Israel`s recent statements and about this new finding, which they say are an attempt to "obscure the truth and avoid responsibility." They go on to renew their call for action saying apart, "since Shireen was killed, our family has called for a thorough, independent, and credible U.S. investigation that leads to accountability which is the bare minimum the U.S. government should do for one of their own citizens.
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[20:50:00]
HAYES: Since the Supreme Court overturn Roe v. Wade and got rid of federal abortion protections, anti-abortion Republicans have faced intense backlash. Some have gone to great lengths to hide their previously stated positions. Here`s the latest example, Republican Scott Jensen. Jensen is running for governor of Minnesota, also currently running as fast as he can away from his previous extreme positions on abortion. Now, here`s what he told Minnesota Public Radio just in March.
(BEGIN VIDEO CLIP)
MIKE MULCAHY, RADIO HOST: If you were governor, would you try to impose new restrictions on abortion or would you try to ban it outright?
SCOTT JENSEN (R-MN), GUBERNATORIAL CANDIDATE: I would try to ban abortion. I think that we`re basically in a situation where we should be governed by -- there is no reason for us to be having abortions going on.
(END VIDEO CLIP)
HAYES: I would try to ban abortion. There is no reason for us to have abortions going on. Weird syntax but very clear, fairly straightforward, black and white. That guy right now trails his opponent, incumbent Democratic Governor Tim Walz by 18 points according to recent polling. And while we should take polling with an enormous grain of salt, it could be why Jensen released this new ad possibly trying to make up some ground.
[20:55:04]
(BEGIN VIDEO CLIP)
JENSEN: I`ve delivered 500 babies in my career. Abortion is divisive. And Tim Walz is weaponizing the issue. In Minnesota, it`s a protected constitutional right and no governor can change that. And I`m not running to do that.
(END VIDEO CLIP)
HAYES: OK, first of all, it`s weird to be holding a baby in your ad. I mean, I get -- you know, he delivers babies. I get that. But like, it`s weird. Like, it makes me uncomfortable. Like, just focus on -- focus on one thing. Focus on the ad or focus on the baby. But also, I don`t think that`s going to cut it. In March, you wanted to ban abortion. You said it very clearly, there`s no reason we should have abortions. He says he`s not running do that now? Will Minnesota voters buy it?
Shefali Luthra is a health care reporter for The 19th, an independent news organization, where she`s been covering the political backlash in the wake of the Dobbs decision. And she joins me now. Shefali, you know, Minnesota is interesting case. Obviously, it is not a swing state in the same way that like Wisconsin is, but Donald Trump came very close in 2016, quite famously. And it`s an interesting test case of how the politics of this are playing there. And it seems like Jensen is aware that he`s not on the right side of this right now.
SHEFALI LUTHRA, HEALTH CARE REPORTER, THE 19TH: I think you`re correct. And what we see in Minnesota, right, is the latest example in a trend. We have seen candidates, Republican candidates in Arizona, in North Carolina, in Michigan try to backtrack from their professor desire to ban abortion, often all circumstances, often with no exception for rape or incest.
Now, many things have changed right now. This is a general election, not a primary. The overturn of Roe v. Wade is no longer theoretical. It`s real. And there`s all sorts of reasons that you`d want if you are a Republican candidate to avoid adopting such an unpopular position. But what I want to emphasize is that this isn`t new for the Republican Party. Since the day that Roe was overturned, we saw the Republican Senatorial campaign arm advising candidates to say that they would not criminalize doctors for performing abortion.
HAYES: Right.
LUTHRA: And that simply isn`t true. Republicans know that, in many ways, they are not on the popular side of this issue. And that`s why they are hesitant to talk about it. And when they are, they are trying to change what their positions have been.
HAYES: You know, one of the most striking examples of this is in -- there`s two states in the Midwest that have -- that have different situations. So, Wisconsin has an old law that has now the law of the land, so you can`t access abortion in Wisconsin right now. And Tim Michels is -- here he is. He`s the Republican who`s very ardently anti-abortion, has given millions to anti-abortion cases. Like, there`s no question this guy can`t run away from it. Here he is saying he support the ninth -- 1849 Law, which is the law that has been triggered as his position. Take a listen.
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UNIDENTIFIED MALE: Abortion could be headed back to states for control in Wisconsin. It would be the 1849 Law. Would you sign any legislation? Some Republicans -- Speaker Vos has said he would support adding exceptions for rape and incest. Would you sign that into law?
TIM MICHELS (R-WI), GUBERNATORIAL CANDIDATE: So, I`m pro-life. It comes from my faith. And I believe that we have to protect the unborn. The 1849 Law is an exact mirror of my position. And my position is an exact mirror of the 1849 Law as well, which has an exception for life of the mother.
UNIDENTIFIED MALE: But you wouldn`t support exceptions for rape or incest.
MICHELS: That`s correct.
(END VIDEO CLIP)
HAYES: So, it`s pretty striking. I mean, this is going to be a test case in a very closely divided state whether being on the side of the 1849 Law, the 1849 Law with no exceptions for rape or incest is a winning issue for him.
LUTHRA: Just today in Michigan, right, we saw a court block enforcement of their pre-Roe abortion ban which dates back to the 1930s. We are seeing courts have really immense influence in determining whether abortion is available in the state or not. One thing that I do want to emphasize further is we know that banning abortion with no exception for rape and incest is incredibly unpopular. Very, very, very few Americans support this even in states with abortion bans.
But I do want to note that even in states that have banned abortion and include a nominal exception for cases of rape or incest, these are very difficult to enforce. Rape is very rarely reported. You often require verification from a doctor or law enforcement. And in practice, if you are enforcing an abortion ban with or without rape or incest exceptions, the effect is largely the same. And it goes against what many voters support.
HAYES: It`s a -- it`s a really important point. We`ve seen someone like Mehmet Oz come out and say yes, I support these exemptions -- you know these exemptions, but in practice, like you have just survived sexual assaults, you are pregnant, you are going to some law enforcement person to get some piece of paper signing off.
I mean, just the actual reality on the ground of that is also pretty horrifying actually to contemplate when you think about what it actually looks like when implemented. Shefali Luthra who`s been doing great reporting on this topic, thank you so much.
LUTHRA: Thanks for having me.
HAYES: That is ALL IN on this Wednesday night. "ALEX WAGNER TONIGHT" starts right now. Good evening, Alex.