HAYES: Good evening from New York, I’m Chris Hayes. In 45 days, the 116th Congress will begin. Democrats will be in power in the House of Representatives and President Trump is now hurtling towards the biggest political collision of his administration. Now, we have seen Trump during the campaign and during his presidency cornered lashing out at acting progressively, picking fights seemingly at random. In fact, it’s sort of the way he operates, his own weird equilibrium. This weekend though he seemed particularly agitated, I think it’s safe to say. He literally tried to blame the California wildfires on the lack of forests raking by Californians. He attacked retired Admiral William McRaven who oversaw the Osama bin Laden raid and said the military should have killed bin Laden sooner. And he called the incoming chair of the House Intelligence Committee Adam Schitt. It’s like he doesn’t even care about “Be Best.” But here’s what changes January 3rd, that congressman he just insulted Adam Schiff will have a gavel and a subpoena power and every single sign available points to Special Counsel Robert Mueller nearing the end of his investigation and likely readying some kind of public showing of the evidence which clearly has the president panicked. Here he is this weekend answering whether he would agree to an interview with Robert Mueller.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Is that your final position that there’s going to be no sit-down interview and nothing written or in person on obstruction?

TRUMP: I would say probably. Probably, I mean I can change my mind but probably. I think – I think we’ve wasted enough time on this witch-hunt, and the answers probably were finished.

(END VIDEO CLIP)

HAYES: We’re finished. That position that he probably won’t sit for an interview of the special counsel contrast starkly with some of his previous positions on the very same subject.

(BEGIN VIDEO CLIP)

TRUMP: Oh, I would do it under oath, yes, absolutely. I’m looking forward to it, actually.

UNIDENTIFIED MALE: Would you still like to testify to Special Counsel Robert Mueller, sir? TRUMP: Thank you. I would love to speak. I would love too. Nobody wants to speak more than me. In fact, against my lawyers, because most lawyers they’d never speak on anything. I would love to speak.

(END VIDEO CLIP)

HAYES: Now the President has an obvious last stitch play which is his installment of a grossly under-qualified lackey, a person known to be his quote eyes and ears to run the Justice Department. And this weekend, he made it clear that he’s absolutely fine with that individual Matthew Whitaker doing something about the Mueller investigation.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: If Whitaker decides in any way to limit or curtail the Mueller investigation, are you okay with that?

TRUMP: Look, it’s going to be up to him. I think he’s very well aware politically, I think he’s astute politically, he’s a very smart person, a very respected person. He’s going to do what’s right. I really believe he’s going to do what’s right.

(END VIDEO CLIP)

HAYES: Today, that very smart, very respected person had a third lawsuit filed against him, this one by three U.S. senators who say that Matthew Whitaker’s appointment as Acting Attorney General for the United States is unconstitutional. Ian Bassin is a former Associate White House Counsel for President Barack Obama, now the Executive Director of Protect Democracy which is one of the nonprofit groups representing the three Democratic senators in their lawsuit against Matthew Whitaker. Good to have you here.

IAN BASSIN, EXECUTIVE DIRECTOR, PROTECT DEMOCRACY: Thanks, Chris.

HAYES: What’s the theory of the case?

BASSIN: Look, this is the exact scenario the Founders were worried about when they put the appointments clause in the Constitution, right? The Founders were concerned that a president, if he had the sole authority to appoint top officials, might put in place somebody who was a loyal personal lackey or family member to do things solely on his own behalf. And so, they wrote into the constitutional requirement that the president can’t do that. He needs to get the advice and consent of the Senate. You know, because you can’t offer Donald Trump a constitution if you remember during the campaign Donald Trump, clearly didn’t take him up on it. We did at Protect Democracy. I have here a constitution that Khizr Khan gave our group of Protect Democracy which lays out it the rule that the president has to get the Senate’s consent before someone can be an attorney general.

HAYES: The OLC says he can do what he’s done and you’re wrong.

BASSIN: Yes. The OLC is clearly wrong, right? The OLC trots out an old 100 plus-year-old Supreme Court opinion that says in special and exigent circumstances someone can serve for a temporary period in an official role like the Attorney General. The President made clear yesterday this is not a temporary period nor does OLC lay out what the exigent circumstances are. The president can pay – created the vacancy by firing the former attorney general in order to put in place his own loyalist.

HAYES: The only precedent I think also on that OLC citation was a six days in 1866 right? The acting Attorney General I think that was the amount of time –

BASSIN: Which I think that you know, we’re already past.

HAYES: There you joined now two – there’s already two other cases, right? The State of Maryland has filed a motion and an on-going state – case that they have on the ACA where they basically say we want your court to replace Whitaker with Rod Rosenstein. And then there’s a plaintiff in a gun rights case who’s basically said the same thing to the court. Are these three going to move expeditiously through the courts and enough time to have an actual real remedy?

BASSIN: Well, they really should for this reason which is if these suits are correct and we think they are, then everything the Attorney General does while he is sitting unconstitutionally in this seat is up to question.

HAYES: Is illegitimate. I mean –

BASSIN: You’re talking about thousands of indictments around the country and criminal matters, regulatory matters, so it’s in the interest of the Senate.

HAYES: That’s a great point.

BASSIN: And it’s interesting that Mitch McConnell is conceding his power as majority leader. He’s bragged about personnel being his thing, conceding the power, the institutional power of the Senate to assert itself in this situation which it needs to do for the American people. HAYES: What is the remedy here?

BASSIN: Well, what we’ve asked for in the suit that we brought at Protect Democracy with the Constitutional Accountability Center today is a declaratory judgment that the President’s action is unconstitutional and an injunction barring Matthew Whitaker from exercising the offices of the acting Attorney General. And you know –

HAYES: That would be a crazy moment if a court found that.

BASIN: You know, it wouldn’t be for this reason.

HAYES: I mean, I don’t think it’s wrong. I’m just saying on terms like the ripple effects and those sort of the earth-shattering nature of a court being like you’re out, A.G.

BASSIN: But the problem here is got a president whose behaving in an unprecedented fashion in a way that really is of a kind with autocrats around the world trying to undermine the rule of law and the courts should step in here because that’s what they were set up to do. The Framers created checks and balances in our system and I cannot mention how on point some of the Framers were on this. so Alexander Hamilton worrying about the president doing exactly this wrote, and with apologies to Lin-Manuel Miranda who could wrap this better than I can say it. He said if there’s no check from the Senate, the President could put someone in row like this who has no other merit than that of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. That’s what the President is doing, the courts needs to step in and stop him.

HAYES: Final question. You were a White House lawyer. I know this because you and my wife were working in the same office under President Obama and I know that you guys spent a lot of time on the Presidential Records Act. It was a pain, you got to retain all the records. A new story out of Ivanka camp – Ivanka Trump sent hundreds of e-mails last year to White House aides. Cabinet officials or assistants using a personal account, many of them in violation of Federal Records Rules according to people familiar with the White House examination of her correspondence.

BASSIN: Yes. We went around every other week to every office in the White House and says you can’t do this. If you are going to use your e-mail, that’s not a government e-mail, you got to forward it to your government e- mail to preserve it for the Presidential Records Act and people paid attention to it then.

HAYES: It was kind of a big deal in 2016 too. I don’t know if you remember that. All right, Ian Bassin, thank you very much.

BASSIN: Thanks, Chris.