it is 4:00 in new york. on a very busy day of breaking news. there is blockbuster new reporting this afternoon in "the new york times" on the chaos and ethical lapses of the last special counsel appointed during the trump administration. john durham, he was handpicked by attorney general bill barr to investigate the investigators of

the trump russia probe. he found not much, but we'll tell you about the brand-new reporting later in the program. we're also waiting to see the police body cam video from the horrific attack on paul pelosi, the husband of speaker nancy pelosi last year as well as the audio from the 911 call he made. a judge ordered that evidence to be made public in response to requests from multiple news organizations. that includes nbc news. and we'll bring you that footage as soon as it is released and we're able to turn it around for you. we begin with breaking news, the tragedy out of memphis. criminal charges have just been announced in the case of police brutality that stunned the nation and the world in just the past hour, the shelby county district attorney announced the fire officers involved in the fatal beating of 29-year-old memphis resident tyre nichols have been charged with second degree murder. here is that announcement. >> earlier today, the grand jury returned indictments against

five former memphis police department officers regarding the death of tyre nichols. each of the five individuals played a different role in the incident in question. the actions of all of them resulted in the death of tyre nichols and they are all responsible. if there is any silver lining to be drawn from this very dark cloud, it is that perhaps this incident can open a broader conversation about the need for police reform. the world is watching us and we need to show the world what lessons we can learn from this tragedy. >> the world is watching. the charges for the officers include aggravated assault, aggravated kidnapping. today's announcement comes in the wake of shock and horror at what has happened to tyre nichols, who was stopped by police for what they say was reckless driving on january 7th. nichols succumbed to his injuries and died three days later. the memphis police chief

described the traffic stop as, quote, not just a professional failing, but, quote, a failing of basic humanity toward another individual. all five officers involved have been fired and are currently also under scrutiny from the civil rights probe by doj. police body cam video of the incident was viewed by the family on monday. cbs news is reporting that the attorney for the family of tyre nichol s, benjamin crump, said, quote that the footage of the traffic stop, which he likened to the rodney king arrest video, was so heart breaking that nichols mom could not get through the first minute of it. according to crump, first question nichols asks was what did i do. memphis and the nation now bracing for the public release of that video set to take place tomorrow evening. joining us now, nbc news correspondent and antonia hylton live in memphis, tennessee, paul butler is also here, the author

of the book "chokehold: policing black men," a former federal prosecutor, he's now a professor of law at georgetown. antonia, take us through today and then we'll work our way backward as i know you've been on this story. >> yeah, nicolle. today has been really tense as people have been waiting for news to drop all day. sources were telling me and other folks here at nbc news that they expected for the charges to come out today and for the video to come tomorrow. and that's how this has played out. and my understanding from my sources is that all this was very intentional. they wanted to make sure the community knew that these officers, all five of them were indicted, they were in custody and if they could see the charges before they had to frankly face what we expect to be really horrific footage in the video. so the charges these officers are facing, they range from aggravated kidnapping to misconduct, but the most important charge, the charge that people in this community

were waiting for, for days, is the news of second degree murder charges. and they feel like this is in line with their expectations, with what they were demanding of leadership here. so that's been one silver lining in all of the pain here. people have been grateful for how quickly the police department moved, that they didn't have to beg and plead for the officers to be fired. but they weren't first put on administrative leave, anything like that, they feel like they have been respected by the police department, and by leadership, the d.a., and in that respect, but they're also fearful that the way this has all been expedited signals to them that what they're going to see tomorrow, we expect the video to come out after about 6:00 p.m. local here, 7:00 p.m. eastern, the fact that all this has been expedited left people worried this is going to be something really, really horrifying, this is going to send shock waves not just through memphis, but potentially through the rest of the country. and while they're grateful for the accountability, for swift action for the news that the

officers have been charged criminally, they're very fearful and there is a lot of conversation, you know, both very public and some in more hushed tones about what this community may be going through in the next couple of days, nicolle. >> tell me more about what is happening in hushed tones. >> well, one aspect that makes this case different for many of the black residents in memphis is that they see themselves reflected not just in the person who has been murdered, which is unfortunately so often the case for black americans, but also in the five officers involved in this. there are a lot of conversations in the black community right now about how hurtful this is, about how traumatic it is to see yourself, your son, your nephew, your cousin reflected on all sides of such terrible violence. and i think what i'm hearing from so many of the people i've spoken to, i've spoken to moms, teachers in the public schools here, i got to talk to one

police officer this week about all of this, is that for them this has to come down to police misconduct, a conversation that is not about color the way that sometimes it very rightfully is when these incidents happen across the united states. but the hope is it allows us to zero in on a conversation about policing, conduct, expectations, how these investigations are carried out, and that it is -- it makes it possible for the community to talk about and push for reform. but it is really painful. this was a -- this man was beloved by people, he was a skater, he loved photography, sunsets, he was social, he worked at fedex, he had friends and connections in so many parts of the city. people on the police force who i've spoken to, they feel like they have been betrayed by the five officers who are representing them as they went out that day. and so there is a lot of healing, some of those conversations are happening, but

immense hurt. and as those conversations get started, there is also the nerves that the video could perhaps break up any of the conversations, the cross conversations that have been happening. so, you know, i think what people are trying to focus on right now is the gratefulness that these officers are now on the path to being held accountable, but there is a lot of tough conversations in the texture, the dynamics of this one feel a bit different on the ground than some of the other stories that have unfortunately had to cover in my career. >> you bring extraordinary humanity to your reporting. i read a few other things about tyre and you told us a few things about him, but i also read he has a 4-year-old son. and on his breaks at fedex he would go visit his mom. it is a life that no matter what accountability looks like is gone. that line from ben crump, that first thing he said was what did

i do, just take me through the original incident and your reporting and understanding of what happened on january 7th, antonia. >> i think it is important that people know there is actually a lot about the beginning of the incident, or actually everything from the beginning to the end of the beating that we still don't actually know. but here's what we do know. on january 7th, officers pulled him over because of what they described as reckless driving. we don't know a lot about what that even just the term reckless driving means in this incident. we expect to know more when we can see the video ourseves tomorrow night. and that then at some point tyre nichols fled on foot. we understand that at some point he asked them verbally, you know, what did i do. and then we expect that there is going to be a period in the footage that we see tomorrow where perhaps there was a delay or conversations not had quickly enough about getting him aid

after he was beaten to an extremely disturbing point by all five of these officers for about three minutes straight. the timeline, though, we had people here lined up in this auditorium, trying to ask the d.a. as he was trying to get out of the room, why don't we know more about this timeline right now, can you tell us anything about what transpired, how many minutes until they got him aid, what happened, were there conversations, did you hear the officers say anything that indicated to you they were not helping this man as much as they could once they realized the depths of what had happened here and we couldn't get answers to those. what we kept hearing is you're going to see it yourself essentially on video tomorrow. and so we understand the basics here, that a traffic stop turned into someone's eventual demise. but how that is possible, we still don't really know. and, you know, for black people living in this city, who i've talked to, part of what is so hurtful is the confusion of how does a traffic stop become deadly for people, for anyone, but for young black man who had

so much of his life ahead of him, how does something luke a driving infraction turn into three minutes of a beating. and we don't know. it is not sure that the video will leave us with any satisfying answers about this, but there is so much about it right now, nicolle, that we don't know. >> antonia, what are the questions that you have as we enter this really vital period? i think it is about 24 -- i'm not great at math, 27 hours from now that that tape will come out. what are you -- what information are you wanting to gather, and what reporting are you undertaking to sort of be ready for the next 27 hours? >> the timeline is frankly what is keeping me up right now, that i keep trying to turn over in my head, you know, how does someone get pulled over for reckless driving, a driving infraction of some kind, still vague, and then it escalates to that point? why might tyre nichols have fled

from them, why did he ask them -- he asked them why, why this was happening to them. did the officers communicate to him? was this a legal stop in the first place, essentially, is what i'm wondering, or did it start legal and become an illegal stop at some point? because, of course, when you see a charge like aggravated kidnapping, you wonder was it a -- is that something that started from the beginning of the incident, something that -- where we're going to hear the d.a. give us more details about at what point it became a kidnapping. that is an alarming charge. never mind all the others that came with it. i have a lot of questions about, like, i want a ticktock very clear timeline and i want to know some of the conversations that happened there on the ground. i want to talk more to folks about what they are feeling right now in terms of the leadership here in the city. so many of the folks involved in this are new. relatively new. namely even just the chief of police davis, she is just a bit over a year into this job. how are they feeling about the work she's done?

what signals have they been sent, have they received from the fact that all of this happened so swiftly? because there is two sides to this, the gratefulness about it, for how quickly these officers ended up in custody, but then also this element of well, what kind of culture might all of this reflect? how did we get here in the first place? what kind of police department have we all been, you know, expecting was protecting and serving us but that may not have been the case. i want to understand more about the emotions, the experiences, the, you know, psychology of the community in the wake of all of this, but i'm desperate to know more about the timeline because it is hard as a reporter to make sense of this on the ground when we're still not being given so many of the key details. we know the charges, but we don't know the full background of even what led up to all the charges and at what point the d.a. and others looked at all this footage and decided that was what was required here. and so, you know, i'm right now

i'm bracing, nicolle, for the fact i have -- i have to watch that video tomorrow to be honest with you. >> yeah. >> i've watched a lot of them in my career, i don't like it. it is hard. it is one of the hardest parts of this job. but i also know i owe it to people to know what i'm talking about, to know what i'm reporting on, to have these tough conversations and so some of what i'm going through in my mind too is just the understanding that i have only a little over 24 hours to prepare myself to look at that. but that pales in comparison to what everyone else who lives here, people who knew him, who loved him, what they have seen and what they're bracing for. >> antonia's reporting moves me so much. i've been watching her and i've been riveted. it takes my breath away to think of the depth of pain and i think what she's also getting at is how horrific is it really that the murder charges came so quickly? tell me what your thoughts are this hour, paul butler.

>> nicolle, i'm dreading watching the videotape for the authorities to take the very swift actions they took, they didn't say we're going to put these officers on administrative leave, and there needs to be an investigation. they were fired. the prosecutor threw the book at these officers, charging them with the most serious homicide charge short of premeditated murder. you're charged with second degree murder. but that tells me is that this videotaped evidence will be horrifying. it will be sickening, strong evidence of guilt to some people. we still don't know what the defense will be. typically in these cases it is that the officers used reasonable force. based on what we have heard about the videotape, it is hard to believe that a juror will look at these five officers beating up this guy like an

execution in the words of the prosecutor. it is hard to see how any juror could find that reasonable. but we'll have to wait and see what the defense is. >> in terms of what we do have, i think antonia draws a perfect bright red line around all the gaps and our understanding of the facts here, but in terms of what we do know is there were five officers and there was one person who didn't even know what he had done or why he was pulled over. i mean, what -- how -- how broken is it that we're even having this conversation? it seems impossible to cover the beating death of one driver for a stop that is unclear based on the reporting was even a legal stop, but ended in his death. paul? >> so, when mr. nichols asked

the police officers what did i do, the answer should have been, you were driving recklessly. that's not a fine for which one deserves what is in effect the death penalty be issued without a judge or a jury. the death penalty issued by these five officers. it is important to understand that in tennessee second degree murder is the knowing, killing of another. so premeditation is not required. and it is also not required that each defendant deliver the actual death blow. so you're guilty under tennessee law if the cumulative effect of the conduct is reasonably likely to result in death. so, in other words, the former officers won't be able to claim, well, i just kicked him a few times, that didn't cause his death, and use that as a defense. if it was foreseeable that these

five officers' actions taken together put mr. nichols life at risk, then they're guilty of second degree murder. >> i want to bring charles blow into our conversation. charles, antonia has focused on the timeline. let me go over it one more time in terms of what we understand. january 7th, tyre nichols is stopped by police. he loses his life, his family posted a picture of him in the hospital, he dies three days later. the officers are fired five days later on january 15th. january 18th, doj opens the civil rights investigation. by the 20th, the officers are fired. the police viewed that video, which their attorney ben crump said tyre's mom couldn't get through first minute of. and today january 26th, the officers, all five of them, charged with second degree murder. what are your thoughts this afternoon? >> yeah.

the particulars of the case are really disturbing. but my thoughts are at a higher level, which is this is exactly what happens when we treat police misconduct and reform as a seasonal fad, when we treat it as if it was a part of a summer protest and we moved on because crime rose or because politicians got skiddish and no one really wanted to worry about any more about police reform, they wanted to move on to other issues, trying to avoid the appalachian that they were woke or for defund the police. now we are now stuck in a situation where we sit around worrying about and focusing on the angry reaction to violence rather than the police violence that precipitates the angry reaction. that is perverse. we are -- we are on television now because it is possible that

people will be very upset when they see this video. we don't back up and say, why did we give up on the possibility of reveal/reform in the first place that would have possibly changed some of the patterns in the first place. it is not an anomaly that this happens out of a routine traffic stop. when you think back of all the high profile police killings, particularly of black men and women in this country, they start as routine traffic stops. and there is a lot of reasons for that. one of them is a proper imperative that police departments have rather than politicians being brave enough to raise taxes, they turn to police departments to help -- to make money. through fines. and summons

and ummonses. that is at the root of a lot of what we're seeing. and eventually, out of all of those stops, a few of them something goes tragically wrong and we start to say, well, we best look at these officers, let's look at this particular person, how did they act in particular rather than systemically that there is a problem here that we are still not dealing with. >> and, charles, where do you think that comes from? we sustained a national conversation for many, many, many, many months. the numbers of people in the public who supported reform i think were upward of 70%. as you know, upwards of 70% of americans don't agree on very much. and in your -- by your diagnosis, what happened? >> well, we basically had a cabin fever racial consciousness. everybody was locked up because of covid, everybody had to watch

tv, they saw something really horrible on tv, you couldn't gather for anything else, but they let people gather to protest. and so people got out of the house because they could. and it is not -- not to say they didn't feel anything, i think that many people did. but the moment that they could get back to regular life, they also got back to regular priorities and that did not include the defense of these black and brown bodies that were laying in the streets because of police violence. and that is -- that is a question america has to ask itself, where was your commitment? people talk so much about allyship. the majority of people out marching duing the summer protests were not black, they were white people. and all of that somehow dissipates because you say that crime goes up postcovid because of the trauma of covid and now all of a sudden we now we can't talk about it so these other lives, you know, the number of police killings of black people -- of american citizens

did not go down. when it keeps going up, actually. but now we can't talk about it. those bodies become collateral damage to the fact that you are now scared about rising crime. the criminal cannot be an excuse for you not to pay attention to people who are innocent and who are killed. >> yeah. let me just thank all of you. antonia, for your exquisite reporting on the ground and the humanity with which you do it and the work you have ahead of you over the next 27 hours. you are -- i've watched news all day. you're in a league of your own. thank you for starting us off today. paul butler, for helping us understand the structural legal questions around this. and charles blow for elevating it, really, for taking it where it belongs. i really appreciate you. thank you very much. >> thank you. when we come back, democrats in virginia today defeating any plans for that state to restrict a woman's right to choose.

one of those lawmakers who helped send a very clear, very blunt message about exactly where the governor can put those antiabortion bills will be our next guest. plus, one day after the united states and germany pledge to send tanks to ukraine, russian missiles strike kyiv and other cities across the country. we'll check in with our good friend igor novakov. the brand-new blockbuster reporting from the new york times this afternoon blowing the lid off the now infamous bungled durham investigation. you do not want to miss this story. "deadline: white house" continues after a quick break. don't go anywhere. " continues afr tea quick break. don't go anywhere.

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as state legislatures reconvene, antiabortion right activists have been relentless in their efforts to go well beyond what the u.s. supreme court has done and further penalize women and choke off their access to healthcare, from pushing laws to criminalize women, to criminal scrutiny when they miscarry, to removing any exceptions in the case of rape or incest or the health of the mother. in a much needed and massive bright spot for supporters of abortion rights, virginia democrats are standing up to republican governor glenn youngkin's attempt to ban abortion at 15 weeks in their state. here's the president of the senate on the crisis caused by these bans. >> bans have eliminated all or some abortion access in 18 states. plunging our nation into a

public health crisis and causing irreversible harm to patients and their families in vast swaths of the country. virginia has become a critical access point for essential time sensitive healthcare, not just for people in our commonwealth, but for the entire region. i have not backed down. i have doubled down. i am more committed than ever to ensuring these bans go exactly where they belong, out in the trash can. >> don't mess with senator louise lucas because this morning she and senate democrats, they prevailed. they got their way. they blocked governor youngkin's ban and here she is putting the ban, that bill she's talking about, in her trash can. which is specifically designated for abortion bans. joining us now, democratic state senator from virginia, louise lucas, with me at the table, my friend and colleague alicea

menendez, host of "american voices." thank you for being here. we cover this story every day, and it can feel bleak. but i saw this story, i saw this reporting, i saw what you did and how you did it. and i wanted to get your perspective and your thought on the road and the fight ahead. >> well, one thing that we know is that seven in ten people in virginia want us to have safe access to healthcare. they especially want us to have safe, legal and accessible healthcare in virginia when it comes to reproductive rights. so we stand with the people in virginia and we just wanted to make sure that we beat back all of the efforts that governor youngkin's tried to pass up on us to try to pass these abortion bans, but we prevailed today, we have defeated all of those legislative bans that he has tried to push on us, the commonwealth of virginia. i'm happy. it is a very good day for us here in virginia. >> you're right about where the

public and where the virginia public opinion is. but governor youngkin has been committed to this since he was a candidate. may i show you some footage of him as a candidate back in 2021? >> so madam senator, he's admitting to lying to the seven in ten virginia voters so he doesn't lose independent votes. what do you make of a republican party and a republican governor that knows he is governing for a microminority, that that is

where his constituents want him to be? >> he's out of touch. nicolle, he's out of touch. he didn't listen to us. we told him that virginians believe abortion should remain safe, legal and accessible. we told him early on we would reject any bans on reproductive freedoms every time a bill was filed. and because our constitutional rights have been stolen from us. in virginia, we will continue to protect access to essential reproductive healthcare, and we will not rest until we beat back all the bills that's coming from this administration. >> now, alicea, i want to bring you in on this. unfortunately for america, every state doesn't have a senator like this who can sort of be on the line for women to protect access to this healthcare. but this dynamic of being out of step with their own voters and knowing that the politics are horrific to say nothing of the policy is not unique to youngkin. >> i'm so glad you played that video of him from 2021. he knows the political calculus. they all know the political

calculus. they're also contending with the primary where they have organizers from the march for life, other antichoice organizers saying roe wasn't the end. it was the beginning. we want an all-out full national ban on abortion and they have people who are willing to carry that water for them. they have mike pence, who says he will not rest until every state in the union has a ban on abortion. you have kristi noem in south dakota this week making it harder for pharmacists in her state to offer abortion and saying they will be prosecuted if they do, and then you have her bullying someone like ron desantis who is doing this exact little calculus, trying to figure out how he gets through a primary, holding down those voters who they still somehow believe that they need, without getting to a general where, yes, the majority of americans do not believe that this should be limited in the ways that they want to see it limited. look at kentucky. look at kansas.

it may not be framed the same way in every state, right, in some cases it may be a question of government overreach, in some cases about healthcare. but the message from voters is the same, you all have gone too far. >> the reason glenn youngkin has to hide from voters in virginia, what republicans are doing, the new hallmark of this version of extremism in the gop is that the victories are never celebrated. they're doubled down upon and then they go further. i didn't see a single republican celebrate the overturning of roe v. wade. if that was really the aim, why are they now pushing bans that eliminate exceptions to rape, incest and health of mother? >> because they are conflicted because they know that once people actually live with the reality of what those bans mean, we're seeing across this country, you're seeing women who have dangerous ectopic pregnancies who go in for care in some of the states with

abortion bans and they're not able to access the healthcare they need. women with incomplete miscarriages and can't go to their doctor and get what is unfortunately routine medical procedure, right? >> septic. >> and so what is amazing to me is that republicans and antichoice advocates have succeeded in doing what choice advocates always wanted, to frame this as a question of healthcare. it is now in the lived experience of your neighbor, your sister, and your mom, that something happened and in the moment when you needed your doctor to make a decision about your care, your life, your health, they had to get on the phone with an attorney in the hospital or in their practice to see if they were crossing a line that was going to get them in criminal trouble. >> madam senator, let me bring you back in on this. tell me what going to happen next. i can't imagine governor youngkin will give up. >> i'm sure he will not. i'm thinking this is just the beginning, i'm telling you i'm in for the fight of my life for

me, my daughters, my granddaughters. we will not rest, we will not allow the commonwealth to be turned back. we want to be a safe haven for pregnant people in virginia, we also want to be a place where people from outside of the commonwealth of virginia can come and have access to safe affordable reproductive healthcare. so, i'm sure they're not going to quit, but neither are we. we're going to continue to fight until we codify reproductive rights for all virginians and anybody who wants to come to virginia to find safe and affordable healthcare. >> what do you hear from constituents. this is the position, i looked at public polling. this is the position, glenn youngkin said it, not just of democrats in the commonwealth, independents, a lot of republicans as well. >> we have been receiving emails and text messages and phone calls, you would not believe the magnitude of the calls and messages that we received

thanking us for doing what we have done today. and asking us to continue to hold the line, which we will thoroughly do. and we're going to keep the trash can nearby, we're thinking about going to a shredder, because so many bills are coming in that we need to get rid of. we'll shred them and send them back to the governor. he didn't listen to us. seven out of ten virginians wanted to have safe, affordable, reproductive healthcare and we're going to fight like all get out to make sure virginia remains exactly in the position we're in right now. >> i was always amazed by the analysis ahead of the midterms that women had gotten over roe, that that peaked in the spring, the senator is one exquisite example of how this fight is about today. it is about what happens to a girl or woman who goes into the emergency room today and is denied access to healthcare, today. >> it also is telling to me that the senator is honest about the fact that the trash can is not going away. she needs to keep her trash can next to her because all these

trash bills are going to continue to come her way. they are not done. and even this which you have correctly framed as a win for those who believe that women should have access to abortion, it is still a defensive win. there is not -- and they are going to continue. it struck me when vice president harris went to florida and she gave her speech on what was the anniversary of roe v. wade that you have ron desantis talking about florida as this bastion of freedom. and here it is, 15-week abortion. what kind of freedom, freedom then for whom? i think that is sort of the way this conversation is going to move. >> and it is the way americans, vast majority of them, men and women, democrats and republicans, process the story and the question. state senator louise lucas, thank you very much. we will continue to call on you. if you need a bigger trash can, we will send you one. >> thank you. i would appreciate that very

much. i'm sure i'll need it. >> it is on its way. alicia sticks around with us. we will shift gears. we're going to check in with our good friend igor novakov in kyiv which has been targeted by russian missiles today. don't go anywhere. d by russian missiles today don't go anywhere. we all know that words have power. they set things in motion and make us happy or sad. but there's one word that stands out, because when people say it, lives are changed. it's not a big word. it's itsy bitsy. it's only three little letters. but when you say it, the life of a kid like me can be changed. so what is this special word? it may surprise you. it's yes, yes, yes, yes to becoming a monthly supporter of shriners hospitals for children. that's right! your monthly support allows the doctors and nurses at shriners hospitals for children to give the most amazing care anywhere

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capital city of kyiv. 47 of them were shot down. at least 11 people have been killed, though, at this hour from all across the country. the wave of strikes comes a day after both the united states and germany agreed to send dozens of tanks to ukraine in an effort to bolster the ukrainians' capabilities and ensure ongoing western support. joining our coverage, igor novikov, former adviser to ukraine's president zelenskyy. alicia will lob some questions your way too. she's smarter than i am so get ready. i want to ask you something that came up yesterday. we had a white house official on and obviously this tank announcement is great. in america, we like to pat ourselves on the back and we feel good about helping, but then general barry mccaffrey came on and he said this is a drop in the bucket, sending 31 tanks, they'll be there in a year, is not a sizable contribution. is you give it to me straight, tell me where you come down on this? >> well, i fully agree with him

because 30 tanks are not going to make much difference. they're going to boost morale, definitely. that's pretty much it. we need over 200 tanks to affect the situation on the battlefront. that's first thing. secondly, you have to understand that this war is over when ukraine has november technical capability to push russia back. now, it is just going to be a question back where because, you know, certain people within, you know, american media community are saying cimea is russia, which i disagree with, but at the same time, like, look, if ukraine is winning on the battlefield, that's when the negotiations should start. >> and ukraine is winning on the battlefield. russia's campaign is largely a campaign of terror, right? >> that's the only thing they can pretty much technically afford at this point because 11 people have died, but at the same time if you look at the damage they have caused to our infrastructure, this attack

wasn't definitely was nowhere near as successful as they hoped it would be. most of the missiles have got shot down and the only ones that struck are the hypersonics, we don't have the capability to take those down. >> you talked about sort of the scale of the tanks, but i want to ask you about something that president zelenskyy said yesterday, the key thing now is speed and scale, the speed of tank deliveries to ukraine and then as you spoke about with the scale of the tank deliveries, talk to me about that speed variable there. what does it really look like to train up some of the troops, what is the differential if those tanks were to be delivered tomorrow versus to have a lapse of weeks, of months? >> i don't think the training is too much of a factor to be honest. if you look at, you know, the history of weapons deliveries to ukraine, our troops have very capable and learning to operate the new equipment really quickly and really effect ovally.

look at the himars. the time element is vital here. russia at the moment is regrouping for a massive offensive. and many believe that this will be their last chance to fect this war in their favor. and to be honest, just overwhelming us with equipment, with people, and just basically as a friend of mine from fighting in bakhmut described it, it is the literal war of the rings. 24/7, being thrown at defense lines to spam them, to try to basically destroy everything in their sight and just move ahead inch by inch. we need weapons quickly to counter that. morale will be falling because we're suffering losses as well. >> talk to me about that morale. what we all understood is this is above all else psychological warfare. your sense of where the troops are now. the amount of fight they still have in them. >> well, we're fighting for homeland. we will be fighting until our last breath, but i know it

sounds very superficial so let me describe it to you this way. basically what is going on, everyone wants to defend their homeland, but there this war has been going on for too long and every little hiccup, every step in the road that slows us down, like weapons deliveries, like corruption, those things are working against us. and in russia's favor. and that's why i'm very pleased that zelenskyy stepped up with his anticorruption efforts last week as well. >> and igor, i want to ask you about the winter. i was saying to alicia in the break, there was this misnomer that the winter, if russia couldn't get the spirit of the ukrainian people the winter would. how is the winter going? it is clear you had plans, tell me how you're faring. >> well, to be honest, i mean i was kind of imagining it was going to be worse. not practicalically. practicalically, yeah, we don't have electricity, sometimes we

don't have running water, there are many inconveniences, many hardships, but at the same time you adapt really quickly to them. and what is amazing, ukraine is kind of building itself up from ground zero in that sense. we're building up our sense of community, our sense of family, our sense of a nation, and that's incredibly important and, like, look, at the resilience center i see hundreds of people a day and everyone has their own story, everyone has been through something, everybody lost somebody. at the same time, i haven't seen one broken person yet. and that's the most important factor for me. >> i keep thinking we are -- i think it is exactly four weeks from today that is the one-year mark of the war and i keep thinking, you and i have been having these conversations for almost a year, the only silver lining for me of covering this horrific sort of campaign of atrocities on russia's part in your country, but i wonder, what is the psychology is of the nation around this one-year

anniversary. >> well, it is just a date. it is a tragic date and like even the state of the government was using two, three weeks in its communications in the beginning of the war to try and acclimatize people to this idea that this is not going to be over in a month or two. this is a long war and there is only going to be one winner. i think this anniversary, though it is a tragic date, it is just a date. the only date that would matter at the end of the day is victory day. >> and what in your informed estimation will that take and when do you think that will happen and whatvariable s as you see it four weeks out? >> it is the weapons deliveries. we have the troops, we have the resolve, we have everything else. as soon as we're equipped to push russia back, we will push russia back. i want to, you know, look at the positive angle here and i want

to commend the change in strategy in the u.s. because, you know, everyone was afraid of escalating with russia, but that's the only way to force them to negotiate, to just surrender, to fall back, it is to escalate. they only understand strength and finally a thinking our western allies have begun to understand. >> ambassador bill taylor said on the show in the early -- i don't know february or early march of last year, the ukrainian army is the most skilled and best armies in the world. they have been at war for eight, nine, ten years now. and that was something general mccaffrey said yesterday as well, the idea that the ukrainian military needs months and months of training on any of these systems is ridiculous. talk about the capabilities of the ukrainian military. >> well, i think there is only one system that we need to learn a bit longer and that is the f-16. so the sooner we agree to start training our pilots the better

in that sense. but apart from that, there is a lot of battle experience within the ukrainian army. but unfortunately there is a sour note as well. i've spoken to my cousen about it joined the armed forces back in 2015. that early war. and basically he said we are very rare breed. the veterans. so, a lot of them have been killed unfortunately. and tragically. and therefore that experience that we are getting is the new experience. but there is also -- that also has a bright side to it. because the people who are fighting now have started fighting with himars already on the field with the western weapons and javelins. so it is a very capable army but at the end of the day morale decides who wins and who loses and we have advantage over russia on that front. >> igor novaroff, our truest voice in kyiv. thank you very much for spending time with us and joining us.

i know it is late there my friend. thank you. and alicia, thank you for being here at the table with me. keep yourself free. it is great to have you here. thank you very much. another quick break for us. we'll be right back. don't go anywhere.

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into this so we get to the bottom of it and the american people know whether we have control of the direction of our government or not. >> all we're demanding of mike pence. that happened just hours before a violent mob of trump supporters turned insurrectionists who stormed the capitol on january 6. there is john eastman at the ellipse, warming up the crowd. "new york times" has called eastman the chief architect to over turning the 2020 election. he invoked the 5th amendment more than 100 times under the questioning of the january 6 select committee. while today there is a late breaking development involving mr. eastman. today the state bar of california filed him with multiple disciplinary counts. there are 11 in all. arising from allegations that eastman engaged in a court of conduct to plan and promote and assist then president trump in executing a strategy, quote, unsupported by facts or law to overturn the legitimate results

of the 2020 presidential election by obstructing the county of electoral votes of certain states. this is important because the california state bar specifically cites that eastman speech, that we just showed you, the one he gave on the ellipse on january 6, specific charged allege that he made false and misleading statements regarding purported election fraud including statements on january 6, 2020 at a rally in washington, d.c. that contributed to provoking a crowd to assault and breach the capitol, to intimidate then vice president pence and prevent the electoral count from proceeding. they say the goal is for eastman too be disbarred. we'll keep watching up. up next, the blockbuster "new york times" report. the chaos that ensued from the special counsel during the trump years. john durham's investigation of the russia investigators. we'll tell you all about it after a very short break. don't go anywhere.

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attorney general barr just appointed the u.s. attorney in connecticut to investigate the origins of the witch hunt into the trump campaign. this is huge news. a colossal step forward for equal justice and equal application under our laws. >> let me just say something. president obama and biden, sleepy joe, he knew everything that was happening, they were spying on my came and they got caught. now let's see what happens. >> let's see what happens with the durham report. so nothing happened with the

durham report. hi, again, everybody, it is 5:00 in new york. a breaking story with huge implications for the garland justice department. merrick garland on a hiring spree is going to clean up in aisle six by the last special counsel that was apointed by bill barr. he's the last known human to investigate the investigators, the new jim jordan subcommittee. "new york times" is out with a jaw-dropping piece of reporting that suggests the failures of the extremely secretive four-year long durham probe pail when compared to the ethical questions and internal chaos that took place inside of that investigation. the "times" is reporting that interviews by the "times" said more than a dozen current and former officials have revealed unreported episodes that show how the durham inquiry became

broiled by internal dissent and ethical disputes as it went unsuccessfully down one path after another even as trump and barr promoted a misleading narrative of its progress. now why does any of this matter? well aside from the fact that the durham investigation birthed thousands of hours of disinformation about decent public servants who worked on the russia investigation, it also represented a sort of twilight zone for this highly regarded prosecutor who ran it, john durham. the "times" said that robert luskin, a former justice department prosecutor who represented two witnesses mr. durham interviewed said he had a hard time squaring durham's prior reputation as an independent minded straight shooter with his end of career conduct as mr. barr's special counsel. there is also this reporting on durham's shall we say

radicalization to become a russia probe truther. he spent the first months looking for any evidence that the origin of the russia investigation involved a intelligence investigation targeting the trump campaign. he spent long hours homing the cia files and found no way to support the allegation. barr and durham then traveled abroad together to press british and italian officials to reveal everything, everything their agencies had gleaned about the trump campaign but both allied governments denied they had done any such thing. top british intelligence officials expressed indignation about the accusation that is according to three former u.s. officials. the article also provides new reporting on the desperation by barr and ultimately durham when the probe failed to deliver, quote, scalps, ahead of the 2020 presidential campaign season.

quote, mr. barr and mr. dur havm did not shut down their inquiry. with the investigation complete, they turned to a new rational. a hunt for a basis to accuse the clint campaign of conspiring to defraud the government by manufacturing the suspicions that the trump campaign had colluded with russia. now the caper could be described as almost entertaining in its brazen politicization or abject failure but as we sit here, john durham is a employee of merrick garland, filing a final report on this. what happens next for the durham probe is where we start the hour with some of our favorite reporters and friends. we're joined by phone by one the reporters who shared a by-line and contributor charlie savage is here. and also joining us, ben wittes

and barbara mcquade is here and she's also an msnbc contributor and former top official at the justice department national security division we have many questions for, mary mccord is nice tough to be here today. charlie savage, take me through the reporting. >> well thanks for highlighting it. we spent a long time, the three of us, trying to put this thing together and pierce through a large amount of fog. it was a major project and so i appreciate this attention. we basically set out to investigate the investigation of the investigation if you will. and a lot of it was still on the durham investigation already based on the two failed prosecutions that he brought and all of the -- you referred to it, all of the fox news narrative that came off of his court filings and insinuations, none of which proved what he was assigned to do which was to prove a deep state conspiracy

against trump and rewrite the narrative of the russian investigation so that trump was the victim in the public mind. but we found a lot of new things. as the story is too long and textured to go through all of them but there are three major takeaways. the first is that unbeknownst to everyone, durham opened a criminal investigation into trump or trump related issues in the fall of 2019 it leaked that his administrative review had evolved to include a criminal investigation and everyone assumed that meant he had found something potentially criminal about the people who investigated the russia investigation and the justice department let that misimpression hang out there. in fact what happened was when they went to italy, barr and durham were told by italian officials, we don't know what you're talking about but we did hear this other thing. something involving international financial crimes related to trump and they decided it was too credible to ignore but not to let another

prosecutor investigate it even though it had nothing to do with the russia investigation. but barr and under durham's control, that is the thing that leaked out in november of 2019 that there was some criminal investigation happening. >> wow. >> but it was 180 degrees the opposite of how it was understood to be. and he -- we don't know a lot of detail about that but we do know he never brought charges. >> let me read that section. i have that right here and let me read and then we'll go to the other two. and we've seen we have plenty of time. we're not going to race through this. here is the connection your describing. on one of mr. barr's and durham's trips to europe, according to people familiar with the matter, officials denyingy roll in setting off the russian investigation, they linked trump to certain suspected financial crimes. mr. barr and mr. durham decided that the tip was too serious and credible to ignore but rather than assign it to another prosecutor, barr had durham

investigate the matter himself giving him criminal prosecution powers for the first time. in october of 2019, a garrbled echo became public and the "times" reported that the administrative review of the russia inquiry had involved to include a criminal investigation saying it was not clear what the suspected crime was. the news reports however were all framed around the erroneous assumption that the criminal investigation must mean durham had found evidence of potential crimes by officials involved in the russia inquiry. barr who weighed in publicly at regular interviews in ways that advanced a pro-trump narrative chose in this instance not to clarify what was really happening. so what happens to the criminal investigation into trump's financial ties that was passed along by italian officials, charlie? >> so john durham opens a criminal investigation and he does not bring charges. and there is a lot of murk there. maybe we'll learn more, maybe something will shake out at some point but that is what we know

at this point. you could imagine if it had become public when trump was still president that durham and barr had opened a new criminal investigation involving trump. that would have been amazing. but that did not become public until now. >> because they kept it secret. >> the second major takeaway if i could keep going. >> keep going. >> as they shifted to trying to prove or find a basis to accuse hillary clinton for trump's russia collusion suspicion troubles, they came to focus on a aide named leonard bernardo to george soros, who liberal here and philanthropist who is a favorite target of the far right and russian state media, and was open society for a civil society charity was kicked out of russia by vladimir putin which called him a security threat. and there had been this odd trove of russian intelligence memos that the dutch had hacked

out of the gru. they know the memos was known, it was recorded back in 2017 because it had a nexus to jim comey's explanation internally about why he gave the favorite press conference about hillary clinton email investigation. but these memos were doubted by american intelligence officials who they were full of things that were demonstrably wrong and american officials thought that maybe the russians had understood that that server had been hack and were deliberating planting disinformation in that trove to sow confusion and chaos in the west. but one of the george soros's aides saying something to debbie wasserman-schultz that hillary clinton had approved a plan to stir up a scandal to link trump to russia in the middle of 2016. and bernardo and debbie wasserman schultz said at the time that this came up in the

early thing, in the comey era, they didn't even know each other let alone ever communicated about anything. but durham had decided he needed to prove that these were real. because this could be a basis to pivot towards the hillary clinton framed trump scenario. so he asked a judge in d.c., judge baerl howl for a 2703-d order, which allows you to get information about someone's emails and she turned him down twice because this russia memo was too dubious of a basis to intrude on someone's privacy. and not unde perred by that durham used grand jury power to get the information, documents and testimony from sources group and from leonard bernardo which then apparently went nowhere. so it is sort of an extraordinary, like he couldn't take no for an answer in trying to prove this thing based on the very dubious source. that is the second major finding that we had. >> let me read -- i want to ask

you a follow-up question about that section and then i want to read more about the hillary clinton sort of obsession. i mean, as all of this is going on, trump is tweeting prosecute hillary clinton. it looks like john durham was damn near trying and it looks like his life long professional partner prosecutor, i think her name is nora dennahe leaves over some of the disputes. you tell me if this is part of this or related. and then just speak to me about how durham becomes infected with this criminalizing hillary clinton obsession. you report this. by the summer of 2020 with election day approaching, barr pressed durham to draft a potential interim report centered on the clinton campaign and the fbi gull ability or willful blindness. in december of 2020, they discovered that other members of team had written a draft report

that mr. durham had not told her about, that is according to people briefed on their ensuing argument. she erupted according to people familiar with the matter and she told mr. durham that to report should be issued before the investigation was complete and specially not just before an election. she denounced the draft for taking disputed information at face value. she sent colleagues a memo detailing those concerns and resigned. so am i right that you finally crack this code on nora dennahe's resignation. it was never know what the disagreement was about and you are reporting there for the first time, charlie? >> yes. so it was a culmination of a series of disputes she had with durham in front of other people on the team, in front of the agents and other prosecutors over the course of 2020 all centered around the theme of prosecutorial ethics. and this draft report that she discovered was apparently the straw that broke the camel's

back but it fell after she had criticized or pushed durham to tell bill barr to stop publicly talking about their investigation in violation of justice department policies of not talking about open investigations and not doing so in a misleading way. and then she was not -- she was upset about the using grand jury powers to go after bernardo's emails, after the judge had twice said there was not an adequate legal basis to do that and that was another thing. and then she finds this report and she blows up in front of everyone and then send this longs memo to everyone about the problems and quits. so that is why she abruptly leaves the justice department and leaves the team on september 11th, 2020. she did not talk then and has not talked but that is what happened. >> mary mccord, i have to bring you in on this. i'm curious, did you know or work with john durham and do you have thoughts about charlie and his colleagues unbelievable body

of reporting about his sort of ill-fated probe? >> yes, i don't believe i actually ever met john durham. while we were both in the department for overlapping with each other for decades. i had known him by reputation and that reputation was good in my opinion before this more recent inquiry. and i think that one of things that i took from charlie's story which he also did with two other very fine "new york times" reporters adam goldman and katie benner, is that we saw a prosecutor who lost his bearings in terms of doj principles and norms. principles of federal prosecution in terms of what it takes to bring a case. and we saw, you know, two failed prosecutions. i was say witness in one of the prosecution trials, called by the defense, called by michael sussman with respect to some

notes i had taken in my role as the acting assistant attorney general and it was clear to me just preparing as i had to to testify that this was an incredibly thin case and of course it resulted in an acquittal and a very, very short order after putting many, many people through a lot of trauma and getting ready for this trial. so i feel like he really sort of lost track of what the principles are that guide prosecutions and he certainly lost track of the rule, the norms of doj that you do not comment on pending investigations and you certainly don't comment intending to tilt public opinion when the inspector general came out with his lengthy report and i had been interviewed by him as well, when he came out with his own lengthy report finding that there was no political purpose in the fbi launching the

investigation into potential russia collusion, that wasn't good enough for durham or barr and durham put out a statement which is unprecedented saying, you know, basically, this is not the end of this. we have access to information and evidence that horowitz didn't have and we disagree with some of his conclusions an that is remarkable. as for the reporting, i think it is an incredible piece. there is so much in there. it -- i will say it troubles me a little bit that so many people were speaking anonymously about this. i don't see any classified information revealed in it or anything like that. but it is -- you know, it is just hard as a former department official to see people who are, you know, revealing all of the inside information while we still are awaying for the report. but maybe that is important because i don't know that the report is going to say any of what charlie and his colleagues reported and certainly it is in

the public interest to know what these people said and what they're thought and what was happening inside of that investigation. >> yeah, let me come at this that way, mary. i mean, is it anything more of losing track of principles to be turned down by a federal judge twice and then take the information to a grand jury? and what -- you know, he works for merrick garland, he has for two plus years now. i don't know, if i was someone that know of what you describe as losing track of principles which seems like there is a open question if it is even more than that. and i mean he was combing through cia records. there is not clear there was a predicate for his probe and he's investigating one that was justly open. it feels -- i don't know. it feels like more than losing track of principles. could he be under scrutiny. >> i didn't mean to be little it. because those are significant and those go to the heart of

our -- am i doing justice when i seek a 2703-d order as charlie referenced which is different than a search warrant or a -- or other action taken by the grand jury. there is a standard that you have to meet. specific and artic ated facts that show the evidence of a crime will be found and if the judge did not find that twice, that means this is somebody who is really pushing beyond his authority and pushing beyond those governing principles. and i don't feel like i know enough right now about the rummaging around in cia information and some of the other things that may have taken place. i feel like this is probably something that is going to require -- i hate to say it, not a special counsel, but a inspector general investigation. because, you know, charlie is a great reporter but this is a "new york times" story and so we probably need to have some other

type of investigation. and it also seems at least from the story from the reporting that barr, you know, directed the intelligence community now not that he had authority over the intelligence community, but at least according to the story, made a colorful threat about what he would do if they did not cooperate fully with durham. so there is some -- there is a lot of things, threads that still need to be pulled and run to ground and then i think we'll see. and certainly if i were merrick garland, i would be very troubled by this and i would want to hear from john durham. >> mary, i want to ask you another question. they're yelling at plea to get to a break. but this feels related to all of this. do you think that the open criminal investigation into donald trump's potential financial crimes that was a tip from the italian officials what was completely and properly run down in a way that would

survivor look good with public scrutiny. >> the answer to that would be speculation on my part. it is very -- you know, when you can see that the way this investigation was opened, it appears to have been with an eye toward a particular result. i mean, it felt that way at the time because we already had the inspector general investigating the origins of the investigation. now a special counsel investigating the investigators. but then, you know, things that have come out over time, corroborated that it was opened in order to reach a particular result. so, it is hard to in that frame, it is hard to imagine that an investigation that was clearly going to be reaching a very different result would have been something that would have been pursued with the same zest and zealousness that the rest of the investigation was pursued with. that said, there was a team

working for durham. a team of prosecutors who know what their obligations are and know what their responsibilities are and i know at least one of them -- of those team members who used to work with me at the u.s. attorney's office, anthony scar pele, who resigned over disagreements with john durham. >> so did nora dennahe. and someone a prosecutor. so she was a prosecutor with mr. durham in the connecticut u.s. attorneys office i think for decades and she leaves in 2020. and individual you're talking about leaves too. so is it important to understand what happened to the criminal investigation opened by john durham into president trump. >> yes. and i think that is something that the ig should be looking into it. >> no one is going anywhere. for mary mccord, you could never leave. much more on this story. we're going to cover something ben writes about today. the treasure trove in the select

committee report, the fine print hiding in plain sight and pointing the way for the justice department's investigation. ben has been through all it so that you don't have to. he'll tell us what he found. "deadline: white house" continues after a quick break. don't go anywhere. ♪♪ over the last 100 years, lincoln's witnessed a good bit of history. even made some themselves. makes you wonder... what will they do for an encore? ♪♪

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and you're not tired anymore, and your anxiety, everything is gone. it's definitely worth trying. it is an amazing product. we're all back. we're back with ben, barbara and mary. ben, your thoughts on this new reporting? >> it is an amazing piece. and for those of us who have really followed the durham investigation carefully, it knits together some stuff that we already knew with a lot more detail with some stuff that is

wholly new. and, you know, durham's report or durham's tenure began as charlie mentioned not as a criminal investigation. but as a kind of administrative review of the justice department and the fbi's conduct in the russia investigation. then it morphs into a criminal investigation. we learn from this story that that criminal investigation was actually of donald trump or involved donald trump, not of the fbi. and when everything else kind of fizzles out, it morphs again into an investigation of, you know, how hillary set up trump which results in multiple failed prosecutions. and so, it is just -- it is a very interesting attempt to tell the whole story of the durham investigation before we get to the end. i will say there is one aspect

of this that i think bears attention which is unlike a regular prosecutor, durham actually has to explain himself. we think of the final report as something where he gets to, you know, talk about everybody's misconduct. but he's going to have to answer some of these questions in the final report. he's obliged to say what he's investigated and lay out basically the cross memos before merrick garland and merrick garland gets to decide whether to make those public. and, so, i actually think if indeed this reporting is accurate and i have no reason to doubt that it is, durham had some very difficult explaining to do. how he lost two d-order motions before judge howell and why he brought two cases to trial that he couldn't win. that is pretty unusual for a

federal prosecutor. how he ended up flying to italy with bill barr, with whom he was seen to be regularly dining and having scotch to get the italians to dish dirt on the cia, i mean it is a very weird pattern of behavior and i think he's going to have to answer for it. >> well, barr, he's worked for merrick garland and lisa monaco for two years. and bill barr was the a.g. but the two failed trials happened while his boss was merrick garland. how much in the special counsel regs in terms of briefing doj, how much of this story do you think is news to the attorney general and how much of this would he have been aware of? >> i think that the attorney general most certainly has to sign off on significant investigative steps. so the trials that took place during this administration,

certainly merrick garland could have put a stop to that. but i think in light of his professed mission to restore public confidence in the independence of the justice department, i'm sure he would have been very reluctant to put a stop to those if john durham wanted to go forward. if there was any merit and the grand jury returned indictments to find probable cause and he let them be decided by juries. but i would like to think that merrick garland knows about the new reporting that there was information that opened a criminal investigation about financial impropriety of donald trump by the italians. that is a blockbuster piece of news from the new reporting. if merrick garland doesn't know about that until now, i would hope that would cause them to reexamine that information and find out whether that was properly investigated or whether there is something more that needs to be done there. whether this was just covered up and handled appropriately.

i also think something that is super interesting is the matter that prompted the resignation of nora donnahe and professional partner with john durham and when she resigned, that was noteworthy i think for many of us. in the fact that she resigned over what appeared to be happening, the issue of an interim report an owe the eve of the 2020 election. so profoundly wrong in light of doj policy. so, i would think that merrick garland and lisa monaco are going to enforce doj policies and whatever is ine is nothing it that will dirty up people in a way that is not appropriate. >> mary, i have some sense from my own reporting of the frequency and depth of knowledge that rod rosenstein and his deputy ed o'callaghan had during the duration of the probe.

it is not everything, but it is a lot. do you think merrick garland green lit the two loser trials and knew about the opening investigation into trump in 2019? >> so, it is unclear, you know, how frequently durham was reporting up to attorney general merrick garland. this special counsel appointment was different than most. this was not pursuant to the normal regulations which require the special counsel to be from outside of the department. and john durham was sitting prosecutor, u.s. attorney at the time of his appointment. but it also requires special counsel to send up what are called urgent reports advising the attorney general of significant steps in any investigation, in any sensitive investigation and charging is significant and search warrants are significant and can be and obviously going to trial. something as -- as significant as learning about potential

financial improprieties related to president trump would be something that would need to be flagged under that -- under those special counsel regulations which require filing reports. but i don't know that i fully understand what the relationship was given that this wasn't subject to the normal special counsel regulations and it is entirely possible that when merrick garland came in, he wanted to stay a little bit more arms length from this investigation. really to avoid the appearance of, you know, directing it politically. all of that said, it is hard to imagine, i mean, i agree with barbara on this, i hope that merrick garland is aware of some of these things that we've learned about and including and in particular the -- the new information from the italian source about potential financial improprieties. and, you know, in terms of those trials, there is no question that he knew about them. i agree with barbara that he

probably felt that even though under special counsel regulations you could have overruled them if he found they were so inappropriate or unwarranted. but, again, once a grand jury has returned an indictment based on probable cause, that would be a lot for merrick garland to do and i wouldn't necessarily expect him to dive into separately to all of the facts to make his own assessment because that is the whole point of having a special counsel. so green lit might be strong but he did not stop it. >> ben, barbara -- >> could i just add to that. >> sure. >> so, the notion that the attorney general has supervisory authority and some ultimate sense over special counsels. and mary is certainly correct that this is not under strictly speaking under the special counsel reg, although it refers as i recall barr's order, it refers and incorporated the special council regs by reference. but for the special counsel regs

say the attorney general could countermand and order the special counsel if it is sort of so outrageously outside of department policy that no reasonable prosecutor would contemplate it. and then he has to consult with the special counsel and give great weight to his views and he has to report to congress on why he countermanded this special counsel. so the bar for countermanding is really high. and while i think what durham did is outrageous in these two cases, it clearly doesn't meet that standard because not only did a grand jury vote to bring these two cases, but in both cases a federal judge let the matter get to a jury. didn't dismiss it. and so, you know, this was bad decisions and they were inappropriate decisions and they may have been ill-motive decisions but they're not so

far -- i sat through most of the michael sussman case and watched it. there was no so far outside of the bounds that you couldn't say that a reasonable federal prosecutor could have possibly considered bringing the case. and so i just don't think it is at the level at which it is in the zone where the special counsel regs say the attorney general is supposed to defer to the special counsel, that is why we have taken it outside of the bounds of the attorney general in the normal course of business in the first place. >> barb, i'll give you the last word. if a prosecutor's partner is in frequent yelling matches with said prosecutor and quits and another prosecutor that mary mentioned, very senior and quits. and is that worth someone sniffing around or does stuff happened in attorney's offices in special probes? >> certainly prosecutors disagree from time to time and in a spirited way but that is highly unusual for someone to

walk off the case or leave the department altogether. i think that is a bright red flag for me that might have caused me to look into what was going on there. i think we know now what it was. which was durham wanted to issue an interim report which was highly inappropriate offer doj policy that you shouldn't take any investigative steps shortly before an election to issue an discretionary interim report that is unprecedented would really be improper and unethical and i think that is the last straw for nora dennahe. but it is highly unusual that prosecutors disagree to that extent and people walk off a case and leave it and the only time we saw that were in instances when william barr put his thumb on the scale for roger flynn and michael stone. >> we're going to ask you so stick around. we have to fit in a quick break and we'll come back with ben's writing and reporting next. don't go anywhere. xt don't go anywhere. nly pay for what you need!

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you know, look at footnotes. there is tremendous data in many of the footnotes that we -- that the staff and the members of committee have uncovered. it is a quite lengthy and comprehensive report and i think actually the data in some ways more than the report itself is going to be really enlightening for the public and for the press. >> remember when she said that to me and i thought, oh, homework. but someone actually did all of that homework. we were told by committee

members themselves before they were done and released the final report to read the footnotes, to look at underlying evidence. it was their goal to get everything into the public arena. but it is easier said than done. since the january 6 committee final report was more than 800 pages long, our friend as we said ben wittes did just that. so for a month he studied the footnotes and concludes there is a treasure trove in the fine print. today in "the washington post" he details, writing this, it is rare for a government body to show work to the extent that this committee has. normally footnotes in an investigation report point to interviews readers could access. they refer to grand jury transcripts, internal memorandums of interviews and other materials the reader cannot simply click on and search. the january 6 reports, 4,286 end ♪s small print that people offer

a guide. and the footnotes provide lines of questioning for the ongoing doj investigation to follow. he brings up how although the select committee was unable to proof coordination between trump lawyer john eastman and former doj official jeffrey clark, the justice department might be able to do more. quote, note 205 and a few others lay out the precise reasons that the committee could not close the circle and shows how eastman and clark were working together and why the committee is confident they were doing so by revealing a bit more about what committee could not get. the notes help explain what the justice department will need to do. we're back with ben, barbara and mary who by the end of the day will be official co-hosts of the 5:00 hour. ben, it is a brilliant piece. take us through it. >> thank you. so, you know, there is this very striking passage in the -- in the report which says, you know, after laying out on the one hand the fake electors plan of which

they have a chapter's full of evidence about, which is kind of organized and promoted by john eastman. and on the other hand laying out this effort by jeffrey clark and the justice department to essentially decapitate the leadership of the justice department and become the acting attorney general. and after showing how donald trump basically runs both plots, the committee said in a single line that they weren't able to establish that the two plans were coordinated with each other and that is despite the fact that they have said elsewhere that eastman and clark were in touch during this period. and, so, i'm thinking to myself, how is it that you could have such strong evidence of these two plots and not be able really to link them meaningfully, even though you know that the two principal characters involved with them are in touch with each

other in this period. and so, i sort of went looking in the footnotes for the explanation to this. the footnotes turn out to have a remarkable set of explanations. which involve this lawyer working for jeffrey clark named ken cluck owski and he is the kind of guy who is willing to testify. he doesn't assert a fifth like eastman and clark. and he tells a fair bit about what is going on in this period. but then he asserts a different set of privileges over a whole lot of stuff. and the committee is pretty direct in saying they don't think he was fully forthcoming. and, so, i think in the footnotes you see in this area and others where the committee hit the wall. and where it is unable to -- was unable to kind of finish the

circle, finish the painting that it was painting. and where it runs into a problem that it doesn't have the tools to solve, and that is how to get ken cluckowski to tell the full story and how to coerce or coax the testimony of either eastman or clark. and how to break through these privilege claims. these are things that the committee was not in a position to do that the justice department may or may not be in a position to do. >> ben, tim hathy was on this program on friday and said something sort adjacent so what you're saying, that as far as they were able to get, with the tools at their disposal, they believe that a criminal investigation and prosecution of trump is the only conclusion doj could reach. and he points out that with doj's tools, when they dig deeper into episodes like this, he highly doubts that the evidence will make the situation or the fact patterns better for

people like trump and eastman. do you agree with his assessment? >> i do. i think that the likelihood that you could have have these two concurrent plots on the same legal theory, one in the justice department and one in seven state capitols and run out of the white house, both are being run out of the white house and they're not coordinated with each other. i don't believe it. that said, the committee couldn't finish drawing that picture. and the department does have some tools that the committee doesn't have. for example, it has the ability to indict people and put a lot of pressure on them through indictments. it also, to the extent that the fifth management privilege is getting in the way here, it could immunize people. now the committee could immunize people but it didn't. that is because it would mess up any possibility of prosecution. the justice department might

decide that giving somebody immunity for their testimony is a step they are willing to take to get to the truth. and then finally there are privilege claims particularly by cluckowski that are frankly implausible. that the committee did not litigate. they litigated eastman's attorney/client privilege claims, but they -- they ran out of time, basically. and the department i think is unlikely to let some of these privilege claims go unchallenged. and so i do think there are tools available to the department. on the other hand, the attorney/client privilege is fln extremely powerful instrument and it won't wholly surprise me if the department found itself stymied by the same issues that stymied the committee here.

and zoe lofgren was correct in her comments to you, you have to go through the notes to see how this is unpacked and how the committee lays this out for the department. but they're basically saying, you know, here is -- here is where we ran into a wall. and by the way, here are all of the deposition and interview transcripts that reflect it. so, the ball is in your court, now. >> mary, i saw you nod. do you agree with ben's assessment? >> yeah. and there are -- there are even tools other than immunization with respect to the fifth amendment. you could see the court review by none other than judge barrel howell, in the than judge baier howe and say there's no reasonable likelihood for prosecution. you can try to fight it that way. there are things that the department of justice can do that the committee either didn't have to power or time to do. i think it would be great from

tim heyfy, former federal prosecutor, come back into the department of justice now. that might present a little bit of a problem, but nobody knows this record better than he does. >> i think i asked him what he was going to do next, and he's looking at public service again. hasn't ruled it out. barb, to mary's point and to ben's own reporting, seems like what he might say if we were back at the table is, we gave him everything. it's all the footnotes, right? >> oh, yeah, and i think this is an intentional act by the committee. they didn't feel like they reached the conclusion, so they couldn't make a statement in the report, because they're giving all the information to the department of justice in the footnotes. thanks to ben for highlighting this and reading this so we don't have to. the justice department has the information, too. it's not because they concluded there was no connection, it's because they couldn't reach it.

they do have tools. they have search warrants, so they don't have to wait on people to turn over their communications. they can just get them. we know they've executed search warrants to get the phone of john eastman and jeffrey clark. they can immunize them. prosecutors make these decisions all the time. you might have to give up the conviction of a lower level person to flip them to get their testimony to go after someone who's higher up. that could happen in this case as well. i think the justice department has what it needs to go forward in this case with those footnotes. >> let me take another -- >> i will say -- >> oh, go ahead. >> i will say, whoever wrote the footnotes about ken had a real sense of humor, because it goes out of his way to quote his pngs explanation of -- he was at the justice department for a short time, a few weeks. and the committee asked him, why

did you go there in september when you're going to get kicked out of office january 20th? and i think the committee, just reading between the lines of the transcript, they clearly expected him to kind of admit that he was -- he really thought they were going to overturn the election and stay in office, but he doesn't admit that. he says, i was hoping to get litigation experience and i was hoping when i applied for jobs at law firms, nobody would notice anything other than i said i was at justice 2020 and 2021 and wouldn't notice it was just a few days in each year some that's the kind of person we're dealing with here, but that's the fate of accountability for january 6th, depends on whether you can flip such people and whether you can get them to cooperate. >> so on brand. i was going to say i was there in 2020 and 2021. usually people come on these shows for ten minutes, 20 minutes.

you've all stayed for the whole hour and i'm so grateful. thank you so much. ben, barbara, and mary, thank you. another quick break. we'll be right back. her quick b. we'll be right back. people remember ads with a catchy song. so to help you remember that liberty mutual customizes your home insurance, here's a little number you'll never forget. ♪customize and save♪ only pay for what you need. ♪liberty liberty liberty♪ ♪liberty♪ (pensive music) (footsteps crunching) (pensive music) (birds tweeting)

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