updated 1/4/2006 2:25:55 PM ET 2006-01-04T19:25:55

Guests: Joe Manchin, Demaurice Smith, Joel Androphy, Michael Crowley, Dick Deguerin, Dennis Moss, Deborah Kelly

DAN ABRAMS, HOST:  Coming up, rescue workers racing to get to miners trapped in a West Virginia coal mine for more than 30 hours. 


ABRAMS (voice-over):  Rescuers drill holes in a frantic effort to locate the trapped miners and get them air.  They‘re hoping to find them alive. 

And a top Washington lobbyist pleads guilty to various crimes, but that could also mean he helps the government in the investigations of up to 20 members of Congress.  Who could Jack Abramoff bring down? 

Plus, you would think a phone company employee who went into people‘s homes unsupervised could be fired after the company discovered he had been found not guilty of attempted murder by reason of insanity.  Well, a federal appeals court says no, the company can‘t fire him. 

The program about justice starts now. 


ABRAMS:  Hi, everyone.  First up on the docket, rescuers racing against time to save 13 miners trapped in a West Virginia mine after an explosion early Monday morning.  Today rescue crews drilled a hole into the mine then used a camera hopefully to spot signs of the miners.  No luck.  Then drilling crews tried to contact the miners by pounding on a steel pipe near where they‘re believed to be trapped.  Again, no response. 

The miners believed to be at the bottom of a two-mile ramp.  Rescuers now may be less than 1,800 feet away from them.  Carbon monoxide in the mines still at dangerous levels, but there is hope the miners have safely barricaded themselves somewhere inside that mine. 

Joining us now is West Virginia Governor Joe Manchin who is at the scene.  Governor, thanks for taking the time to come on the program.  We appreciate it.  Give us the latest from there. 

GOV. JOE MANCHIN (D), WEST VIRGINIA:  Well, we‘re moving rapidly.  The good news that we have, we got to one left, the section one left which is the first one, and we were able to secure that off without having to go in and totally explore.  So we really had to—didn‘t need to do the full drilling, so we were able to stop the drilling there and proceed with the drilling ahead where we have pretty much ascertained that the explosion happened.  So we‘re moving more rapidly, and hopefully we‘ll have news here within two to four hours, and we‘re still counting on that miracle, as you know. 

ABRAMS:  How certain are you as to exactly where these miners are?

MANCHIN:  Well, remember the first, we drilled the number one hole as you know, and that was where the face of the left, the section left two they call it, that‘s where we had thought it was when they put the probe down and put the camera down.  We saw very little disturbance.  Things were intact.  Shuttle cars, cables were still hanging. 

Things looked pretty good in that section, so we know it‘s not there, and we know from the accounts of the people that had—came into the mine right after and had to come back, how far they were able to get into.  So we pretty much have pinpointed to the point to where we think it is, and this third hole that we‘re putting down right now will be able to really shed an awful lot of light on what we have to work with. 

ABRAMS:  And is there still an effort being made to contact them in some way, banging on pipes, anything like that?

MANCHIN:  Well, they‘ll use every, every effort that they have and every device that they have to make contact.  We haven‘t had any success at that yet.  You know, we‘ve been very realistic on this and our odds are long, we know that, and we have a lot of challenges in front of us.  And we‘re talking to the families in realistic terms, but I keep telling them, and I do, I have hope, and I believe in that miracle. 

They also believe in that miracle.  But it‘s truly what it‘s going to take, a miracle.  And we appreciate all the prayers we‘re receiving from around the country and around the world.  And we are very appreciative of that.  West Virginia, we‘re family, and we‘ve come together as family, and it‘s the strength of the family that‘s going to get us through this.  And we‘re proceeding and we‘re going to hopefully have that miracle tonight in maybe two to four hours. 

ABRAMS:  How are the families doing?  I know you‘re spending a lot of time with them. 

MANCHIN:  As you know right now, I—and I say I‘ve been through this, so I truly can empathize knowing what they‘re feeling right now, grabbing every breath, every word, and I wanted to make sure there was no rumors or untruths going on, so we‘re giving them all the facts that we have, the good and the bad.  The odds that we have that are long. 

They understand, and it‘s tough, but I can tell you they‘re pulling from the strength of their families and knowing these are experienced families that have been in mining for quite some time, knowing the inherent risk, and they know that we‘re doing everything, all the resources we have from the White House to all of our congressional, our senators, everybody‘s giving us all the assistance.  We have different states helping us.  We‘re doing everything...

ABRAMS:  Governor...

MANCHIN:  ... we possibly can, and they know that. 

ABRAMS:  Let me ask you this, and you—as you just said, you‘ve been very realistic about the situation here.  But explain to us a best-case scenario.  I mean how would that work?  How would they have survived all this time, et cetera? 

MANCHIN:  Best-case scenario, they would have to have survived the initial, the initial explosion.  With the survival of the initial explosion, they had, as you know, life apparatuses, breathing apparatuses.  The men who were able to get out of the mine were using those apparatuses. 

So they are all trained.  They know that works. 

And with that, if they were able to do that, then they were able to hopefully find with their indicators some good air, if you will, and be able to bunker themselves or kind of shed themselves in with the different tarps and apparatuses that are in the mines.  With all that being said, that‘s the best situation that we have...

ABRAMS:  Right.

MANCHIN:  ... that they found an air pocket, that they were able to close themselves in and take advantage of that.  And we‘re hoping that that‘s our miracle we‘re looking for. 


MANCHIN:  And with that, the odds with the carbon monoxide levels as high as they have been for as long as they have been, the odds have not been in our favor. 

ABRAMS:  Governor, I know you spoke to the president today.  What did he say to you? 

MANCHIN:  The president basically gave me his prayers for all the families from him and his wife and from the White House, and the pledge of support that anything that we need and all the resources of the federal government.  And they‘ve all been very kind and very good to work with.  And we appreciate all of that, and I‘ve heard from Senator Byrd and Senator Rockefeller and all of our congressional delegation.

It‘s a bipartisan effort, and I‘m glad to see everybody working together the way we should be working, and we are, and it‘s—and everyone has offered their support, and I‘m very appreciative of the president and the White House and all of our congressional delegation for working to help us. 

ABRAMS:  Well Governor, on behalf of my viewers, many of whom have written into this program to send their prayers to the families and friends of those down there, let me just be the conduit to say that a lot of my viewers are wishing, praying for the best for all of them. 

MANCHIN:  Well, in West Virginia we believe in the power of prayer, and I can tell you that‘s been very important.  We feel it.  The families feel it, and we appreciate it very much.  And you‘ve all been so kind, and we appreciate that. 

ABRAMS:  Governor, thanks for taking the time. 

MANCHIN:  Thank you.

ABRAMS:  Joining me now NBC News analyst Bob Hager who‘s covered numerous mine accidents in his many years as an NBC News correspondent.  Bob, why does it sound like everyone is so dower about the prospects here?  What is it that makes this different, for example, than that situation in 2002 where those miners were rescued? 

BOB HAGER, NBC NEWS CORRESPONDENT:  I think basically it‘s the poisonous air.  It‘s when they put that air monitor down and discovered that the carbon monoxide levels were three times what‘s considered to be a deadly level if you have to go 15 minutes of it.  Now these miners would have had some breathing apparatus so they could have covered up for a bit, if they weren‘t stunned by the concussion, covered up for a bit and have maybe an hour or something of protective air there to try to find some safe haven. 

But the odds of that are, as the governor said very candidly, are so long, so that‘s the reason.  Let me try to explain here what the governor was saying.  To get the lay of the land, these are little homemade graphics and I apologize for them, but they‘ll give you the idea.  If this is, let‘s say, the mountainside here and this is the main shaft going in, so from here, from the entrance up here to the end, is a little more than two miles. 

So the rescue teams were in there—first of all, the other shift of miners, the other group of miners that went in at the time of the explosion had gone in this way, so they know that the explosion occurred up in here.  So when they had to pull back, and then the first rescue teams went in, they knew to go up about this far, and they could get that far, but they couldn‘t get any further because of the oxygen, the carbon monoxide levels. 

So then they drilled this hole down from above.  Now, this is a shorter distance, only about 250 to 300 feet depending on where you‘re drilling.  So they put the first hole down there.  That‘s the hole where they lowered the air monitor in.  It again gave them those high, high carbon monoxide readings, and they had a camera there, too. 

Now let me go to this other view.  This is as though you were looking down on it.  Same situation.  Here‘s the entrance of the mine going back two miles, and here are these two left-hand turns.  They talk about left one and left two, and I haven‘t seen the map precisely.  I‘m assuming there‘s a grid work in there.  There may be grid work in other areas, too, because that‘s normally the way they dig for coal. 

But the first hole they put down was up here.  If the first shift of miners that had gone in at the time of the explosion knew that these other miners were up about here, they conjectured they might have turned up here.  And so they dropped that first hole down here.  That‘s the hole where the camera showed them that there was nothing.  No sign of debris, which was hopeful, because it indicated that there was not a lot of debris flying around at the time of the explosion, but no sign of the miners either. 

And so they were putting down a second hole.  Now I‘m sorry, I got that wrong.  I better go back and correct it.  The first hole was here.  They had figured the miners got all the way up here, and then it turned this way.  They put that first hole down there.  They were going to drill a second hole here.  When they didn‘t find anything there, just to test the levels, and then they decided that it would be more fruitful to drill up here.  So they abandoned this number two drill, and number three drill is where they believe now that the miners may have gone.  So that‘s what they‘re waiting for at this point. 

ABRAMS:  Bob, why is it that they only have an hour‘s worth of oxygen with them?  Is that just based on the size of the container they need to carry? 

HAGER:  I think it is, yes because those oxygen containers are very, very heavy, and to try to work with them all day long, there‘s only so much you could carry.  And so I think what they take with them is an hour or so at most.  And then there are pre-propositioned at some places in the mine oxygen that would carry for longer, but you don‘t know exactly where.  And I think by the tone of what they‘ve told us at the briefings here, that they don‘t believe there‘s much up there that they could have reached. 

ABRAMS:  Yes.  All right.  Bob Hager thanks a lot.  Appreciate it. 

HAGER:  OK, Dan.  Yes.

ABRAMS:  Coming up, top lobbyist Jack Abramoff goes down pleading guilty to conspiracy and other charges.  The question everyone‘s asking now, how many members of Congress could he take with him?  Former Majority Leader Tom DeLay is one of those who‘s been investigated.  We‘ll talk to his attorney. 

And a phone company employee that goes into people‘s homes should keep his job even though he‘s been found not guilty of attempted murder by reason of insanity, and he didn‘t disclose that he was convicted of assaulting a police officer either.  Well that‘s what a federal court of appeals ruled. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.


ABRAMS:  We‘re back with news that undoubtedly has some Capitol Hill lawmakers running scared.  Former lobbyist Jack Abramoff pleaded guilty to conspiracy, fraud, and tax evasion today after agreeing to cooperate in a corruption probe that could involve a good number of lawmakers. 

He surrendered his passport, posted $2 million personal bond, addressed the court saying—quote—“Words will not be able to ever express how sorry I am for this and I have profound regret and sorrow for the multitude of mistakes and harm I have caused.  I only hope that I can merit forgiveness from the Almighty and from those I have wronged or caused to suffer.  I will work hard to earn that redemption.”

OK.  So if he‘s admitting improperly currying favor with lawmakers, what about them?  How big could this get?  MSNBC chief Washington correspondent Norah O‘Donnell joins us.  So Norah, how big could it get? 

NORAH O‘DONNELL, NBC CHIEF WASHINGTON CORRESPONDENT:  It could get pretty big, Dan.  Republican lobbyist Jack Abramoff is now a potential time bomb for leading members of Congress who he used to wine and dine.  Experts say his plea deal could unleash the biggest congressional scandal in decades. 

Now today Abramoff pled guilty to charges of conspiracy, mail fraud, and tax evasion.  He also cut a deal with federal prosecutors to testify in what is now a massive government investigation into influence peddling that could ensnare up to two-dozen lawmakers. 


UNIDENTIFIED FEMALE:  Government officials and government action are not for sale.  The Justice Department will aggressively investigate and prosecute these types of cases, which have a devastating impact on the public‘s trust of government. 


O‘DONNELL:  Now, in court today Abramoff essentially admitted that he tried to bribe officials, that he engaged in a conspiracy involving corruption of public officials and in a scheme to provide campaign contributions, trips, and other items, in exchange for certain official acts.  Now, Abramoff‘s close ties to former House Majority Leader Tom DeLay are already under criminal investigation, but the court papers that we saw today specifically mention representative number one, or Republican Congressman Bob Ney and these papers say that Abramoff provided a stream of things of values to Ney and his staff. 


UNIDENTIFIED FEMALE:  The things of value Abramoff provided to government officials included an all-expense paid trip to Scotland to play on a—play golf on a world-famous course, tickets and travel to the Super Bowl in Florida, tickets for concerts and other events in Washington, repeated and regular meals at upscale restaurants and campaign contributions. 


O‘DONNELL:  It‘s a lot of stuff, and in exchange for those things of value, officials say Abramoff got specific action from the congressmen. 


UNIDENTIFIED FEMALE:  He admitted today, Abramoff had a congressman insert statements in the congressional record, had a congressman endorse a wireless telephone contract for the House of Representatives, had a congressman agree to seek passage of legislation to help Abramoff‘s clients. 


O‘DONNELL:  I mean the officials today, Dan, were talking about specific examples of quid pro quo.  In another instance, Abramoff solicited $50,000 from a telephone company and he won Congressman Ney‘s agreement to make sure that the company installed wireless communication throughout the House of Representatives.  That‘s a job that Ney‘s committee in Congress would have overseen.  Now Abramoff‘s guilty plea today represents a spectacular fall from power.  Abramoff was one of Washington‘s wealthiest and most well connected lobbyist.


JACK ABRAMOFF, GUILTY OF CONSPIRACY, TAX EVASION, & FRAUD:  It‘s been devastating on every level for me, on a financial level, on a social level, on a personal level, on a political level.  It brings nothing but tears to my eyes to think of how 10 years of very hard work and achieving very tangible goals on behalf of my clients and other Indian nations has been turned around to make it look like I was a villain.  It‘s terribly hurtful to me. 


O‘DONNELL:  Abramoff says it brings tears to his eyes, but it‘s also going to bring him time in prison.  He said today that he hopes to win forgiveness from the Almighty.  We also heard today from Congressman Delay‘s spokesperson who said he‘s cooperating with investigators and has done nothing wrong.  We also heard today from Congressman‘s Ney‘s spokesman who said he has never done anything illegal or improper and that the allegations in this plea agreement do not change that fact—Dan. 

ABRAMS:  And we‘ll be talking with Tom DeLay‘s lawyer in a minute. 

Very quickly Norah, do you know how much time he‘s facing now? 

O‘DONNELL:  He‘s facing between nine and 11 years.  According to the Justice Department if he continues to cooperate, they say that that time could be reduced.  What we know is that he is turning over thousands of pages of documents.  He was a prolific BlackBerry user, sent lots of e-mails, Dan.  And so the thought is there‘s a lot of that out there that may talk specifically about congressmen. 

ABRAMS:  All right, Norah, stick around.  Joining us now Michael Crowley, senior editor at “The New Republic”, one of the only people to interview Abramoff, former federal prosecutor Demaurice Smith and criminal defense attorney Joel Androphy.

All right.  Demaurice, let‘s talk turkey here.  So this guy‘s going to cooperate.  He‘s turning over all his documents, et cetera.  If he is pleading guilty to bribing people essentially, currying favor from lawmakers, that would mean that the lawmakers would be guilty as well. 

DEMAURICE SMITH, FORMER FEDERAL PROSECUTOR:  Well, it certainly means that the lawmakers are under investigation.  A court of their peers will make a determination if they‘re guilty.  But as this indictment lays out, it says that he conspired and engaged in an activity to curry favor with lawmakers, to shower them with as the Justice Department said, lavish gifts, in exchange for votes and things placed in the congressional record. 

ABRAMS:  And I assume their defense is going to be similar to that of Representative Ney who said whenever Congressman Ney took official action, he did so because of his understanding of the merits and facts of the situation and not because of any improper influence from Jack Abramoff or anybody else.  The congressman intends to cooperate with the continuing investigation and to separate truth from fiction.  At the end of the process the truth will show that Congressman Ney did nothing wrong.

All right.  Joel, without sort of getting into the specifics of Ney‘s case or Delay‘s case or whoever, in general how will they try and build a case against certain lawmakers? 

JOEL ANDROPHY, CRIMINAL DEFENSE ATTORNEY:  E-mails.  This case is—the e-mails in this case are critical.  If you don‘t have any congressmen responding to Abramoff‘s e-mails asking for certain favors, then you‘re going to have a very difficult time just on Abramoff‘s word creating a case, because Abramoff obviously has been pressured into doing this deal. 

I noticed in the introduction here that he is agreeing to plead to a tax count.  Obviously Andrew Fastow in the Enron case, I‘m sure that there were suggestions that your family could be implicated in this thing.  So at the end of day, it‘s not going to be so much what Abramoff says, it‘s going to be what he wrote down, and more importantly, what was responded to. 

ABRAMS:  Demaurice, is it going to be tough to build a case against the congressman?  Assuming and I‘m going to ask Michael Crowley in a minute what kind of witness, et cetera, et cetera, how helpful he‘s going to be, but how tough is it to build a case against some of the lawmakers? 

SMITH:  Well in any bribery case you look for the quid pro quo.  It‘s going to be difficult to establish intent.  Did they vote this way based upon something that they received from...

ABRAMS:  But then on the other hand, you‘re going to see well coincidence, coincidence...


ABRAMS:  Look at all this money...

SMITH:  Absolutely.

ABRAMS:  ... or look at this trip and look at what led—look at what happened right after that. 

SMITH:  And timing and timing.


SMITH:  That‘s what‘s going to be key in this case.  In order to determine whether they acted with that intent. 

ABRAMS:  All right.  Michael Crowley, you‘re one of the few people to have interviewed Abramoff.  Is he really going to name names and turn over everything and help put these guys away? 

MICHAEL CROWLEY, “THE NEW REPUBLIC” SENIOR EDITOR:  Well you know, if you read the plea deal that the Justice Department released today, it sounds like he is naming names, and they oddly only mention this representative number one...


CROWLEY:  ... who seems to be Bob Ney.  But if you read the full document, there are references to public officials, plural.  And also I should mention there‘s a reference to their spouses.  There‘s a whole angle of this story that has to do with spouses of members of Congress who were on the payroll of lobbying firms that had ties to Abramoff and Tom DeLay. 

That‘s a whole kind of thicket that we could get into.  But the document does mention officials, plural.  So it sounds like Abramoff is talking about other members, but so much of the disappointment of people in Washington who thought this was going to be the sort of New Year‘s massacre today, we didn‘t get any other names and it‘s still not clear.  But I think it‘s pretty clear, yes, he is naming other names. 

ABRAMS:  And Joel, I would assume part of the reason for that is because the investigation is ongoing.  They don‘t want to tip their hand.  They don‘t want to be seen as sort of rushing to judgment, et cetera.

ANDROPHY:  Well they got to make sure they‘re right, too.  Obviously, they haven‘t read all these e-mails yet and they shouldn‘t be naming names of cases that they can‘t prove.  They want to build a solid case, and if they‘re going to do it, they‘re going to have to read these e-mails and then eventually, if requested to by the defense, amend these and supersede the indictments to add names.  But they‘re not going to do that until they have this case proven beyond a reasonable doubt at least in their minds. 

ABRAMS:  Norah, we‘ve been talking about two names.  They‘ve both been Republican congressmen, and it does seem most of his connections were to Republicans, but there are some Democrats who‘ve had connections with him as well, right?

O‘DONNELL:  Well in fact, the Senate for Responsive Politics, which studies campaign contributions and where they go has reported that, in fact, Abramoff gave contributions or his clients in some form or another to over 200 members of Congress.  Now just giving a contribution does not mean, of course, that he got favors in return.  But it was interesting, Alice Fisher today at the Justice Department said that his corruption scheme was, quote unquote, “very extensive”. 

And that‘s why there‘s a discussion that we‘re talking about dozens of lawmakers and their spouses and staffers because there were large amounts of contributions going to specific members.  But there are some Democrats involved as well, specifically the state of Montana, believe it or not, where there‘s a Republican senator and a Democratic senator.  The Republican senator there accepted over $100,000.  He‘s given those back.  The Democratic senator also accepted some contributions.  He‘s had to return them as well. 

ABRAMS:  Michael Crowley, how big a story is this going to become?  Is this going to be enormous and really going to be talking about you know 15, 20 lawmakers going down as a result of this? 

CROWLEY:  I think it‘s quite possible.  Look...

ABRAMS:  Really? 

CROWLEY:  ... as people said earlier, I don‘t know about 20, but I think there will be enough that it‘s a jaw-dropping story that people haven‘t seen in decades. 

ABRAMS:  Who will get indicted? 

CROWLEY:  Well here‘s what I was going to say.  The quid pro quo probably is very difficult to prove if you don‘t have the e-mail coming back from the congressmen saying Jack, it‘s a deal, book the flight and I‘ll put the bill in the hopper for you. 

But as a political proposition, I think a lot of the members of Congress whose names are—have already surfaced are going to find it very difficult to survive.  My best guess, for instance, is that Tom DeLay is not coming back.  He may not even win his—he may not even get re-elected to his seat down in Texas.  So there are kind of two perils for these guys.  One is the courtroom, but other—the other is the court of public opinion. 


O‘DONNELL:  Dan...

ABRAMS:  Norah, hang on for a minute.  I‘m going to have you join us for the interview with Dick Deguerin in a minute who is the lawyer for Tom DeLay.  So Demaurice Smith, Joel Androphy, Michael Crowley, thanks a lot.  Norah‘s going to stick around. 

Coming up, one of those politicians likely sweating today, although I bet you his lawyer says he‘s not.  Tom DeLay, the former House majority leader, a close friend of Jack Abramoff.  We talk to Delay‘s attorney up next. 

And you‘d think a phone company could fire an employee whose job it is to go into people‘s homes if they find out he‘s been found not guilty of attempted murder by reason of insanity.  Well, a federal appeals court says give him his job back.  Really? 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike again.  Our search today is in Kentucky. 

Authorities are looking for Urban Mason.  He‘s 41, five-eight, 180, convicted of sexual assault.  Hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, Kentucky State Police would like to hear from you, 502-227-8781.  Be right back.


ABRAMS:  Coming up, more on this breaking story about the Washington lobbyist agreeing to cooperate in a wide-ranging criminal investigation that could involve more than 20 members of Congress.  One of them, Representative Tom DeLay, his lawyer joins us after the headlines. 


ABRAMS:  Continuing our coverage now of the plea deal of Jack Abramoff that undoubtedly has some lawmakers shaking in their boots.  While not one lawmaker was named in court documents released today, the congressional corruption scandal could become the biggest in decades.  We know that Congressman Bob Ney is one who will be looked at and Abramoff‘s relationship with former House Majority Leader Tom DeLay is already under investigation. 

Joining me now once again Tom DeLay‘s attorney, Dick Deguerin.  Dick, thanks for coming back on the program.  Appreciate it.


ABRAMS:  All right, so what‘s your reaction? 


ABRAMS:  I mean Abramoff is pleading guilty.  Tom DeLay has described him as one of his closest friends.  He‘s gotten significant campaign contributions from him.  He‘s taken trips from Abramoff, et cetera.  Are you concerned? 

DEGUERIN:  No.  You know, there‘s no question that they are friends, and Tom DeLay is not the kind of person who‘s going to turn his back on a friend that‘s in trouble.  I‘m sure that he‘s very sympathetic, but at the same time, if Abramoff tells the truth, and we hope he does, then I think it will clear the air, because every time Jack Abramoff‘s name comes up, they try to link him to some kind of improper conduct with Congressman DeLay, and that just isn‘t there. 

ABRAMS:  But he is pleading guilty, right?  I mean, he is admitting that he engaged in wrongdoing when it came to his influence on lawmakers, and what you‘re saying is that he‘s not going to say that Tom DeLay was one of them? 

DEGUERIN:  No, he won‘t, if he tells the truth.  And you know, everybody‘s had a friend that‘s gotten into trouble at some time or another, and there are those kind of people that abandon their friends and there are those that stand by them, and Tom DeLay is not going to abandon Jack Abramoff just because Abramoff has done some illegal things. 

But he hasn‘t done anything illegal with Tom DeLay.  And what you have to realize, Dan, is that all of the contributions that either Tom DeLay took or his political action committees took, or the—have been vetted.  They‘ve gone through the—both the Texas Ethics Commission and been properly reported, and the House Ethics Commission in Washington has looked at all of those.  There‘s just nothing there that‘s improper. 

ABRAMS:  What people are going to say is that just on its face, that it would seem that Tom DeLay is going to be one of the targets here.  I mean for example, DeLay‘s former aide, Michael Scanlon, he pled guilty.  He was supposedly working with Abramoff. 

DeLay made a lot of visits to Abramoff‘s restaurants.  There was the trip to Scotland, the golf trip, the fundraisers that Abramoff held for DeLay.  I mean, this guy‘s poison right now, and it seems that there is just a constant connection between DeLay and Abramoff. 

DEGUERIN:  They‘ve been friends for a long time.  There‘s no question about that.  And—but there‘s 100 or 150 other congressmen also who were friends with Abramoff, and most of those people don‘t have anything to do with anything wrong.  Now, apparently Abramoff was into some stuff that even his best friends didn‘t know about, and that‘s sad for him, but at the same time, we hope the truth comes out. 

ABRAMS:  But he‘s into stuff, right?  And a lot of this stuff is related to lawmakers, and yet he didn‘t do that stuff with one of his closest friends? 

DEGUERIN:  That‘s right.  He didn‘t.  Everything that Tom DeLay did had a—they had a common purpose.  One of the common purposes is that Jack Abramoff supported the conservative causes that are close to Congressmen DeLay‘s heart, and so they had that common purpose.  But as far as any kind of money or quid pro quo or any of that kind of improper stuff, everything that Tom DeLay has done is above board. 

It‘s out in the public record.  Texas has a very strict rule about political contributions.  They all have to be reported, and they‘ve been reported, and they‘re all of record. 

ABRAMS:  So Dick, when you heard that Abramoff had pled guilty, it didn‘t make you nervous? 

DEGUERIN:  No.  We‘ve been expecting that for quite some time.  You

know, when the government comes down on you, with the kind of strength that

and resources that the government has, they can force somebody to plead guilty by offering them a good deal, and apparently they‘ve offered Abramoff a sweetheart deal just like they offered Andy Fastow a sweetheart deal in the Enron case. 

ABRAMS:  Norah O‘Donnell‘s with me.  Norah, do you have any questions for Dick? 

O‘DONNELL:  Dick, has your client, Congressman DeLay, spoken with investigators at the Justice Department? 

DEGUERIN:  What Congressman DeLay did was early on he told the Justice Department that he was willing to talk, that he even hired a lawyer in D.C.  to be the person to offer his cooperation, full cooperation, without any kind of quid pro quo, without any kind of deals to be made, to the Justice Department.  Now, I don‘t know how many times they‘ve talked or how many times the lawyers have talked or the investigators have talked, but from the very outset, Congressman DeLay has offered his cooperation to the investigation. 

O‘DONNELL:  So DeLay has spoken with members of the Justice Department in the public integrity section? 

DEGUERIN:  No, I‘m not sure about that.  What I do know is that he‘s offered his cooperation from the get-go. 

ABRAMS:  All right.  Dick, it looks like you‘ve got a nice fire burning behind you.  Go enjoy that. 


ABRAMS:  Thanks a lot for coming on the program.  Appreciate it. 

Norah O‘Donnell, as always...


ABRAMS:  ... thanks a lot. 

O‘DONNELL:  Thank you. 

ABRAMS:  Coming up, a phone company must rehire an employee who goes into homes even though he‘s got a violent criminal past.  That‘s what a federal court of appeals ruled. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.


ABRAMS:  Coming up, a federal appeals court says a company must rehire an employee who lies about his criminal record which included assaulting a police officer and being found not guilty by reason of insanity for attempted murder.  This guy‘s going into homes.  He‘s a telephone guy.  Details are after the break. 


ABRAMS:  We‘re back.  It‘s not too hard to believe that a company would fire an employee for lying about a criminal record and then refusing to give him his job back once they found out he also had been accused of attempted murder, and had a history of mental illness.  OK. 

It is hard to believe that a court would rule the company isn‘t allowed to say we don‘t want him working here.  When Joseph—when Joshua Josephs, a former telephone installer for Pacific Bell in San Diego applied for a job, which required him to go in people‘s homes unsupervised to work on their phones, he told the company he had never been convicted of a felony or a misdemeanor.  OK, that was a lie. 

Josephs had been convicted of a misdemeanor for battery on a police officer more than 15 years earlier, a conviction he got expunged from his record.  But Pacific Bell also learned that Josephs was once accused of attempted murder and spent more than two years in a mental institution after he was found not guilty by reason of insanity.  So he did it. 

Josephs got fired and then sued.  A jury found that because Pac Bell considered Josephs‘ mental health history in its decision not to rehire him, they violated the Americans with Disabilities Act.  The Ninth Circuit Court of Appeals upheld the decision. 

Quote—“Pac Bell introduced no evidence of written company policy prohibiting employment of persons who had committed violent acts.  The evidence simply does not compel a conclusion that in the eyes of Pac Bell Josephs was not qualified for the service technician position because of his past violent acts.”

“My Take” -- (INAUDIBLE) it‘s illegal to say we don‘t want someone working here who once assaulted a police officer and who tried to kill his friend?  It‘s a two to one decision.  In the words of the dissenting judge quote—“This case requires that Pac Bell reinstate as a service technician a person it believes may pose a danger to its customers.”

Is it unreasonable for them to believe this guy may be dangerous, and therefore, they don‘t want to send him into people‘s homes?  If he does do something, then Pac Bell gets sued.  I don‘t get it. 

California labor attorney Dennis Moss agrees with the court‘s majority opinion, and labor attorney Deborah Kelly disagrees.  Thanks a lot for coming on the program. 

Mr. Moss, what am I getting wrong? 

DENNIS MOSS, LABOR ATTORNEY:  Well, I think the thing about this case that is missed in the press is that it was a jury decision, not a—the court of appeals decision... 

ABRAMS:  So what.  Juries can get it wrong. 

MOSS:  Well, but the jury was given instructions related to the Disability Act, and the Disability Act was enacted, the federal act and the state act, because of stereotypes that existed as to people who have illnesses, whether they are mental illnesses or physical illnesses.  And what happened in this case was Pac Bell should have put on expert testimony if they wanted to establish that Mr. Josephs was not cured, that he was not well.  It had been 15 years since he had been released from a mental institution, and we have a situation where people do get better, and these laws existed to protect people from the stereotypes that are attributed to them based on either a physical or mental disability. 

ABRAMS:  But stereotype is one thing.  This is someone who apparently is conceding by pleading not guilty by reason of insanity that he tried to kill someone.  And sure, you can say that doctors, et cetera, have decided that he‘s cured, and that‘s fine.  But why shouldn‘t a company have the right to say, look, this guy‘s going into people‘s homes.  We‘re going to end up getting sued if he does something.  We just want to be able to say that based on that past, we can make that kind of choice. 

MOSS:  Well, you know, the majority decision indicated, as well as the trial judge, that they could have—the jury could decide that he should have been let go because a history of past violence, and what happened in this case was the jury decided that it was the mental condition concerns of Pac Bell, not the fact that he had been violent in the past, that was the cause of the discharge.  Employers in California, employers anywhere can have policies that are not going to hire people for customer service work because of a violent past. 


MOSS:  What happened in this case was Pac Bell emphasized in their reasoning for not reinstating Mr. Josephs that they felt he was mentally unable to perform the job, and that was a call the jury made that...

ABRAMS:  Deborah Kelly...

MOSS:  ... instructed. 

ABRAMS:  It seems to me, Deborah Kelly, that the mental health and the violence go hand in hand here.  I mean they weren‘t saying oh, we‘re concerned that he wasn‘t going to be able to figure out how to do his job.


ABRAMS:  They were saying that they were concerned about because of his mental health, what he might end up doing in someone‘s home. 

KELLY:  I think it‘s ironic that in California which is the land of we will get you employers for negligent hiring with so many cases about what did you know, did you look deeply enough, did you put someone in with access to the public who had any danger of violence?  And if you did, and if anybody in the public gets hurt, we‘re going to take you down. 

That in that state we now have this decision which basically says we‘re going to get you coming or going.  If you don‘t hire, if you don‘t rehire a person who (A), lied to you, and (B), unlike what the circuit court said, had a unique not similarly situated to the others, a condition where there was mental health coupled with violence, and they never got to look at the employer‘s judgment as to whether it was reasonable or not to think, you know what?  If we put this guy out there again, he could be dangerous. 


KELLY:  And we make that call.  They never got to make that decision. 

ABRAMS:  And that‘s what the dissent says here and let me read from this, Mr. Moss.

The potential liability to Pac Bell is obvious and sizable.  It‘s conceivable that a reasonable jury might well find Pac Bell liable where someone suing while employed as a service technician to gain entrance to a customer‘s home and attack a customer.  Of course, I don‘t mean to suggest this will happen. 

KELLY:  Right.

ABRAMS:  Nonetheless, this is the exposure that Pac Bell faces.

KELLY:  Yes, every employer should go out and have a policy that says, if we fire you, you will not be rehired, period.  End of story.  Over. 


KELLY:  That‘s the way to get out of a situation like this...

ABRAMS:  What do you make of that, Mr. Moss?  I mean the fact that the dissenting judge is basically saying look, this is just a setup for someone suing if this guy does anything wrong. 

MOSS:  Well what the dissent fails to recognize is that under California law, as well as federal law, once they give an employee a conditional job offer, if the work can put people in harm, or if there‘s a mental condition at issue as there was here when they discovered the prior fact that this guy had been institutionalized, they can do a medical exam...


MOSS:  They can do a mental exam as a condition of further employment. 


MOSS:  And what happened here was they didn‘t do that.  The bizarre thing to me was, the only evidence that Pac Bell put on in the trial court, according to a majority opinion, was the testimony of an in-house lawyer that this guy...


MOSS:  ... was mentally unstable. 


MOSS:  It reminded me of “Miracle on 34th Street” where the unqualified...


MOSS:  ... personnel relations guy said that Santa Claus was a danger to the kids...


MOSS:  And the law doesn‘t tolerate that. 


ABRAMS:  To compare a guy who actually tried to kill his friend to Santa Claus to me doesn‘t seem to quite work...

KELLY:  I think the other argument for people who...


KELLY:  ... employers who are really worried about this, or plaintiff‘s lawyers who are salivating that there‘s now so many cases is there‘s a very good argument that under the ADA this individual, and many similarly situated individuals aren‘t even qualified under the ADA.

ABRAMS:  All right.

KELLY:  If you pose a danger to yourself or others the ADA does not protect you. 

ABRAMS:  Yes.  All right.  We‘ve got to go.  I hope this decision gets overturned.  We shall see what happens.  Dennis Moss and Deborah Kelly, thanks a lot.  Appreciate it.

KELLY:  Thank you.

MOSS:  Thank you. 

ABRAMS:  Coming up, last night I asked why the media is treating the boy who made a solo mission to Iraq like a celebrity.  He did something dangerous and dumb.  Many of you writing in.  Coming up. 


ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I asked why are some treating the 16-year-old American who made it into Iraq alone like a celebrity?  U.S. soldiers may have had to risk their lives to rescue him and spend their day at the least babysitting, instead of doing more important work.

Bob Ihnot in Las Vegas, “I generally like your program but I take umbrage at the time you completely wasted to run Hassan down.  Get a life.  Boys will be boys.”

From Saratoga, New York, Michele, “Although I agree with what you said about the media hailing this young teen who went to Iraq, they also hailed that nut case Jennifer Wilbanks, the runaway bride, for all she did wrong also.”

They did not hail Jennifer Wilbanks.  They mocked her.  In fact, there‘s an argument to be made that but for all the media coverage, she never would have been charged with a crime.  Not comparable.

Farshad Ghasripoor in New York, “It was for a bit of fun, fame and thrill at the expense of U.S. soldiers, many of whom are not much older than himself.  Soldiers who are already putting their lives at risk on a daily basis.”

Roger Duncan in Coarsegold, California, “Hurrah, well done Dan.  If he were my son he would have felt the acid end of my tongue and been sent to bed with bread and water for the next week.”

Justice Department announced a criminal investigation into who leaked the information about the NSA spy program.  I asked is this case one they should really be investigating?

Gail Walker in Clinton, Mississippi, “Whistle blowing has its uses, but whistleblowers who take national security information to the press are traitors.  The legality of the monitoring is unclear.  It will be sorted out.  The outing of the program is intolerable and must be punished without mercy.” 

First of all Gail, if whistleblowers can‘t go to the press, they will rarely be heard and often get retaliated against, so whistle blowing will probably not have any uses.  Furthermore, do you really think the legality of the monitoring program would be—quote—“sorted out” if not for the fact that someone went public about it? 

Ruth and Richard Thompson in Huntsville, Alabama.  “No way can a law be broken and the media say not important.”

Well Ruth and Richard, it‘s not clear a law has been broken.  It depends on who said what to whom.  The question I was addressing was the damage that has been done and since terrorists already knew they were being monitored without their knowledge, I‘m not sure this changes that much. 

Be right back. 


ABRAMS:  That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  Chris will have a lot more on that story we were covering earlier on the show, Jack Abramoff pleading guilty.  What his cooperation with the government could mean.

Thanks for watching.  See you tomorrow.


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