updated 2/10/2006 11:20:50 AM ET 2006-02-10T16:20:50

Guests: Tom Tancredo, Lona McCastlain, Arturo Gonzalez

JOE SCARBOROUGH, HOST, “SCARBOROUGH COUNTRY”:  Ask you again.  Let‘s go to Tucker Carlson, for THE SITUATION.  What‘s the situation tonight?

TUCKER CARLSON, HOST:  Thank you, Joe. 

Thanks to you at home for tuning in.  We always appreciate it. 

Tonight, a huge development out of Washington as indicted White House aide Scooter Libby reportedly tells a grand jury that Dick Cheney authorized the leaking of classified information to the reporters.  What are the implications of this for the vice president and, for that matter, for President Bush?

Also, you think Washington is the most corrupt city in America, do you?  Well, tonight, D.C. loses its title to a small town in Arkansas.  You won‘t believe what the mayor, the police chief, and his wife were caught doing there.  Here‘s a hint: it involves crystal meth and sex with inmates.  Stay tuned.  We know you will.

Speaking of sex, what do Americans really want when they hit the mattress?  Has sleep replaced intimacy as our deepest desire?  Is Ambien now hotter than Viagra.  There‘s an interesting thought.  Stay tuned for answers. 

But first, those big developments out of Washington tonight.  Sources tell NBC News that Scooter Libby, former top aide to Dick Cheney, who was indicted in October, will base his defense partly on the claim that his superiors—that would be the vice president—instructed and encouraged him to share classified information with reporters. 

Libby is facing charges of perjury, obstruction of justice and making false statements in the CIA leak investigation conducted by special prosecutor Patrick Fitzgerald.

For more on this we‘re joined now by MSNBC Washington correspondent David Shuster.  He joins us tonight live from Washington.

David, thanks.  What‘s going on?  What is this story?  I don‘t—this is a confusing story.  Can you just lay it out for us quickly?

DAVID SHUSTER, MSNBC NEWS CORRESPONDENT:  Yes.  I mean, basically—obviously, Scooter Libby is charged with lying to the grand jury, lying to investigators about his conversations with reporters. 

Well, what‘s happening now is there‘s an effort under way by prosecutors and by Scooter Libby to sort of confine the landscape of this trial.  And there have been an exchange of letters between Scooter Libby, between the prosecutors, over information that Libby wants. 

And in a letter that was made public by the court just a couple of days ago, Patrick Fitzgerald is writing to Scooter Libby‘s lawyer, and he says, “As we discussed during our television conversation, Mr. Libby testified that he was authorized to disclose information to the press by his superiors.”  By his superiors would only mean either Vice President Cheney or President Bush, because those are the only superiors that Scooter Libby has. 

The context of this, Tucker, is that Scooter Libby is preparing to file a motion in which he will ask the case be dismissed.  Most legal experts do not expect that it will be granted. 

But one of the arguments that we‘re anticipating, and there are indications that Scooter Libby is going to make, is he‘s going to say, “Look, I‘ve asked for classified information so that I can show that I spoke about this with Vice President Cheney.  There were others in the White House.  That this wasn‘t a big deal.  And there‘s—the White House, the prosecutors, they aren‘t giving me this information, so Judge, my due process has been violated.  Throw this case out.” 

The judge is not expected to grant it.


SHUSTER:  But it gives you a little bit of view as to what Scooter Libby‘s defense is going to be. 

CARLSON:  As a political matter—and I think you‘re right.  Nobody I‘ve talked to tonight seems to think his efforts to get the case flown out are going to be successful.  But as a political matter, this could be seen as the smoking gun.  Enemies of the White House have said from day one the plot to leak Valerie Plame‘s identity to the press went right to the top. 

SHUSTER:  That‘s right.  And I think what it does, Tucker, is it bolsters what we first heard from prosecutors in the indictment, when Libby was indicted.  They said that on June 12, 2003, Libby heard that Valerie Wilson worked at the CIA.  He heard that from the vice president, himself. 

And then there was another reference to the vice president: July 12, 2003, Libby and the vice president are in Air Force Two.  Libby gets some advice from officials, presumably including the vice president.  And then that afternoon he goes and tells reporters, “Valerie Wilson works at the CIA.  You ought to know this.”

The question has always been never mind the legal implications of whether that put Cheney in any sort of vulnerability as far as legal implications.  But politically, this would suggest, then, the vice president is giving his chief of staff guidance and advice about what to do with this at the very time when all along the president has been saying, “Look, nobody here was involved.”  So that‘s the problem.

What this does, what this document does, is again it makes the case that, based on Libby own testimony, Vice President Cheney was telling him, “Yes, go ahead.  You‘re authorized to leak some of this information to the press.” 

CARLSON:  This is being read by some people—and I don‘t know if it‘s accurate or not; I suspect not—but as a rift, evidence of a rift, between Scooter Libby and the vice president, that Libby is in some way blaming Cheney for all of this and that his defense will entail sort of passing the buck to Dick Cheney.  Is that what‘s going on?  Have you heard?

SHUSTER:  I don‘t think so.  I mean, I think it‘s more an effort—I mean, the judge is ultimately going to decide how much of this information gets into the trial. 

What the prosecutors want to do is they want to make this very narrow. 

They want to say, “Look, Scooter Libby said to the grand jury”—they said

they‘re going to allege that he lied when he said, “I learned this information from reporters.” 

And prosecutors are going to prove no, the reporters learned the information from Scooter Libby. 

Now, it may also be a fact that Scooter Libby discussed this with other White House officials.  Maybe he heard it from Vice President Cheney.  But the relevance to prosecutors is did Scooter Libby tell the truth in the grand jury?  And they‘re going to suggest that when he said he learned this information from reporters, he was lying. 

Libby is going to argue, “Wait a second.  I heard this from the vice president.”  The vice president isn‘t denying this, at least that‘s what we expect Scooter Libby‘s defense to put on. 

And Libby‘s going to suggest a lot of people in the White House were talking with this.  In fact, “Maybe there were so many conversations, that yes, when I talked with reporters, I couldn‘t really remember whether the reporters told me or whether I told reporters.  But I didn‘t think it was a big deal, because hey, the vice president told me.”

If the judge were to allow that sort of testimony in, then it creates a situation whereby the defense can say, “Look, nobody in this case has been charged with violating the espionage act.”

CARLSON:  Right.

ENSOR:  And this is sort of a gotcha charge that prosecutors have.  So throw it all out, because all right, so he can‘t remember exactly what his conversations with reporters were, but so what?  Nobody‘s been charged with leaking classified information. 

And I think those are the parameters of this case as they‘re starting to shape up. 

CARLSON:  Yes.  I don‘t think it will fly, but I agree with it, for what it‘s worth.  David Shuster in Washington, thanks for that.

SHUSTER:  Thanks, Tucker.

CARLSON:  For more on the future of Dick Cheney plus the al Qaeda plot that apparently targeted L.A., let‘s bring in Air America radio host Rachel Maddow. 

Rachel, welcome.


CARLSON:  This is weird on a couple of levels.  First, I don‘t think, based on some evidence, that there is a rift between Cheney and Scooter Libby.  I think if this is, in fact, going to be Libby‘s defense, I think it‘s with the permission of the vice president, who I think doesn‘t care what the press thinks of him and thinks he‘s not in legal jeopardy. 

But I think the point here is this has nothing to do with the key charge, leaking information about Valerie Plame?

MADDOW:  Right.  That‘s the interesting thing about this, that this doesn‘t really help Libby‘s case, unless Libby has a really, really weak defense strategy. 

As David was pointing out there, if Libby‘s strategy is to try to have the White House withhold classified documents and then say, “Well, if I can‘t get those documents, I can‘t get a fair trial.  Throw the case out.”  It‘s kind of a tightrope legal strategy there.

CARLSON:  Right.

MADDOW:  It doesn‘t seem great for Scooter Libby.  What this may mean, though, what this may be about is kind of a—kind of a warning shot to the White House, like, “Look, there are some implications here for Dick Cheney.  There are implications for making the president look bad, potentially.  So lock down here.  You need to get more behind me.  Don‘t forget about me here.  I‘m still in legal jeopardy.” 

CARLSON:  If that‘s true, if you‘re right—and I actually don‘t think that that‘s true—but—but I don‘t know, in the end. 


CARLSON:  If you‘re right, it‘s a disaster.  I mean, it‘s over.  I mean, someone at that position in any White House has enough information to sink the White House he once worked for.  Of course.  Almost by definition.

MADDOW:  That‘s right. 

CARLSON:  So if he‘s even considering going off the reservation, you know...

MADDOW:  And it may be...

CARLSON:  ... it‘s terrible for Bush.

MADDOW:  And it may be—I mean, we also don‘t know—this is one of those stories that—Murray Ross (ph) is the reporter from the “National Journal” put this out there.  People are kind of following his lead.  This was letters between the prosecutors and the lawyers.  This may be Libby‘s lawyers trying to maybe get a little further out than Libby himself ever would.  I mean, it‘s hard to know exactly...

CARLSON:  I don‘t believe it.  I mean, Libby‘s a lawyer.  I can‘t imagine he‘d let his attorneys write something that he didn‘t sign off on. 

MADDOW:  But there is the obvious thing that is raised by this, which is that if you take it away from Libby, if you take it away from legal strategy and all of our speculation, the question is, you know, if this is true and Scooter Libby will testify to this, then should we be investigating Dick Cheney for having OK‘ed the disclosure...

CARLSON:  But it‘s not a crime.  That‘s the thing we‘ve learned from all this.  It‘s not a crime to tell people about the identity of Valerie Plame.  If it were a crime, you would have indictments on it.  Wouldn‘t you?  Yes, you would.  But you don‘t, so it‘s not a crime.

MADDOW:  Well, no.  That doesn‘t mean it‘s not a crime.  This means we don‘t have enough evidence to charge somebody for it.  But if we do—if Dick Cheney should be charged for it, then Dick Cheney should be charged for it.  If Dick Cheney is OK‘ing the leak of classified information for political reasons, let‘s look into it. 

CARLSON:  Right.  If they could charge Dick Cheney with it, they would. 

Now here—the president gave a press conference today in which he said something pretty interesting, especially against the backdrop of the politics of this week. 


CARLSON:  He said there was this al Qaeda plot against the tallest building on the West Coast, this building in the former Library Building in Los Angeles.


CARLSON:  And we foiled it from information we got, he essentially said, from Pakistan. 

This comes against the backdrop of Hillary Clinton‘s charges earlier this week that the Bush administration was using, quote, “the fear card” to keep itself in power. 

I agree with Hillary Clinton.  The White House is using the specter of the threat we face with al Qaeda to keep itself in power.


CARLSON:  And I also think that‘s a valid—that‘s a valid strategy.  It is.  People believe the Republican Party is better at protecting them than the Democratic Party is.  That‘s a completely valid case to make.  It may be an ugly case to make, but I think it‘s real, and I don‘t think they ought to be embarrassed about it. 

MADDOW:  I think that‘s the—I think that‘s the gloss.  I think that‘s the image that you get from afar when you squint.  But when you really look at it, and I think people are starting to look at it in more detail than they were willing to five years ago or even two years ago, that the question is well, we know that the Republican Party is more interested in making us afraid than the Democratic Party, because they‘re playing that fear card more.  But are they actually better at keeping us safe?

I personally never understood why it was a political advantage for Rudy Giuliani or Dick Cheney or George Bush or anybody to have been in power on the day that 9/11 happened.  You were in charge when we got attacked.  Why does that make me feel safer?

CARLSON:  I think—I think you can ask that question about the agencies themselves, when you know, when we hear we don‘t trust the CIA or trust NSA.  Why should I do that?

But I don‘t think people hold the Bush administration accountable for 9/11, because they know that there was a long back story that preceded this administration, you know, by many, many years, going into the Clinton administration, to be very precise about it. 

But there‘s no question that polling shows that people trust Republicans more.  It‘s a big deal.  People see Democrats as making—as not being as tough.

MADDOW:  Because it‘s been exactly what Hillary Clinton said.  It‘s been the strategy of the Republicans to stoke that fear card.  But it‘s also really, really insulting to the American people when they do it in such a transparently political way.

Here‘s something that‘s four years old, that we didn‘t actually break up, that a Southeast Asian nation broke up.  Bush doesn‘t even know the name of the building.  Oh, and by the way, he never called L.A. or the mayor of L.A. to tell him about that.  He just went on TV with it to play the fear card.  It‘s transparently political, and it‘s not actually about keeping us safe. 

CARLSON:  But it‘s also real.  I mean, there was, -- if we think the president is telling the truth, and I can‘t imagine he made it up out of whole cloth—there was a plot to blow up the largest building on the West Coast.  Kind of a big deal?  Foiled?  Kind of good news. 

I mean, there is a reality against which the politics plays out, but the threat is real.  They do hit us; they do want to kill us.  I think if we forget that, we‘re in trouble.

MADDOW:  And if he talks about four years later, with the details never going to the people who could actually keep us safe there, it looks like a political ploy.  And that‘s insulting.

CARLSON:  Yes.  And when the Democrats complain about it, it looks like they don‘t think the threat is real.  And they lose at elections when they don‘t look like the threat is real.

MADDOW:  The fear card is a very powerful political weapon.  It‘s also an insult. 

CARLSON:  Because it‘s real.  Real, Rachel, real!

MADDOW:  Real!  Real!

CARLSON:  I‘ll see you next week.

MADDOW:  Thanks, Tucker.

CARLSON:  Still to come, is America at war with Mexico?  That‘s right, Mexico.  Should the U.S. military be battling Mexican troops on the border?  Are they already battling troops on the border?  A prominent U.S.  congressman thinks they are.  You‘ll hear from him after the break.

Plus, what did a sheriff, a police chief and the police chief‘s wife do in Arkansas that would make even Larry Flynt blush, or at least offer them lucrative contracts?  An outrageous corruption scandal involving sex, drugs and burglary.  Details on the way when THE SITUATION comes back.


CARLSON:  Still ahead, prosecutors say the sheriff sold crystal meth. 

His wife committed residential burglaries and had sex with the inmates. 

The mayor used prisoners to fix his air conditioner.  And it gets worse.  And it was all business as usual in the most corrupt town in America.  More details ahead.  Stay tuned.


CARLSON:  Is America at war with Mexico?  Congressman Tom Tancredo seems to believe so, and he is encouraging President Bush to send troops to the border, citing increasing numbers of illegal immigrants and the possible incursion of the Mexican army onto U.S. soil. 

The Republican from Colorado accused the president of being unwilling to secure the U.S. border.  He also took issue with the Bush administration‘s proposed guest worker program. 

For more on this developing story, let‘s bring in Congressman Tancredo himself.  He joins us tonight from Cambridge, Maryland.

Congressman, thanks a lot for coming on.

REP. TOM TANCREDO ®, COLORADO:  Pleasure, always.

CARLSON:  So we should send troops to the Mexican border?  I think a lot of people listening to this will say, “Huh?  We‘re at war with Mexico?  What do you mean?”

TANCREDO:  Well, a lot of people listening to this should also say, “Huh?” when I tell you that in the last 10 years the Mexican military and/or Mexican federal police have come into the United States 216 times or more.  The 216 are times—that‘s what we‘ve counted.  It certainly could be many more than that.  But that‘s what we know about. 

CARLSON:  With—excuse me, with permission, in training exercises? 

Were they invited here?  I mean, they came without permission?

TANCREDO:  Not training.  Not training.  Not with our permission.  And not by accident.  They just didn‘t wander over the border. 

They came here with a purpose.  The purpose was to cover for a drug transaction, for a—you know, moving drugs from Mexico into the United States.  Sometimes they‘re actually covering for the actual movement.  Sometimes they‘re coming in, drawing our people over to them, so that the drug movement could come across the border, where our border patrol had been stationed. 

It is all to deal with drugs.  It is all because the Mexican military

now, Tucker, I know this is hard explain or hard to believe...

CARLSON:  Well, it is.  With all due respect, Congressman, and I believe almost everything you say every time we talk, truly.  But the idea that the Mexican army, the Mexican government, controlled by Vicente Fox, our supposed ally, is helping to move drugs into this country. 

TANCREDO:  There—there is the rub.  I do not believe that Vicente Fox has control over his own military.  I believe that the Mexican military has—is in fact, especially the military that is posted along that border, is much more loyal to the drug cartel than it is to the Mexican government and to Vicente Fox. 

That‘s why we‘ve got a problem.  That‘s why Vicente Fox has a problem. 

But we do, too.  Because that military is actually part of the drug cartel. 

I‘m not the only one who tells you this.  I was about—it was about four years ago, I think.  I was down in El Paso.  And I was getting a briefing from the joint terrorism task force. 

And they show me this slide.  And it‘s got a picture of, you know, some lines, arrows coming into the United States across the border, and little figures of Mexican military.  And they‘re counting.  And it says “so many incursions in the last month.”

And I said, “Incursion?  What is that?  What are you talking about?”

And they said, “Well, that‘s when the Mexican military and/or the federal police come into this country without our permission.”

CARLSON:  Wait a second.

TANCREDO:  I naively said—I said, “What for?  What are you talking about?”  This was four years ago. 

CARLSON:  Well, if you—if you know this, and other people apparently know it, then the Bush administration must know it.  Why haven‘t they said about it: 216 isn‘t a dozen times, that‘s a lot.  And why haven‘t they done anything about it?  And are they going to do something about it?

TANCREDO:  The minute I got back from that briefing four years ago, I wrote a letter to the Mexican ambassador.  I wrote a letter to the president of the United States.  I said, you know, “I just found out about this.  Certainly, you know about this.  I found out about it from the border patrol, from the joint terrorism task force.  Are you—what are you going to do about it?”

The letter I got from the American ambassador was, “Well, yes, we know that there‘s a problem.  We‘re working with the Mexican government to try to figure it out.  We think that this sometimes it‘s just a mistake.” 

But the reality is, of course, no one wants to draw attention to this.  Our government, Tucker, does not want to draw attention to the fact that we‘ve got the Mexican military actually covering for drug transactions for drug movements into the United States of America.  Because if you draw attention to that, then more and more Americans are going to say, “We want something done about this border.” 

And even as the “Wall Street Journal” calls it, the Tancredo Wall, you know, the fence down there, even if it‘s that, that‘s what we want done. 

CARLSON:  Well, I think people would support that.  Is war too strong a word, though?

TANCREDO:  Well, it depends.  You know, Tucker, if you‘ve got elements of the Mexican—of a foreign military coming into your country without your permission—and by the way, Tucker, some of those 216 incursions have included the firing of shots.  We have had our people shot at by members of the Mexican military.  We‘ve had our people wounded.  Now, if that isn‘t...

CARLSON:  Wait.  American citizens have been wounded in the United States by the Mexican military firing guns at them?

TANCREDO:  That‘s right. 

CARLSON:  Why is that not on page one of “The New York Times” and every other paper in the country?

TANCREDO:  You‘ve got me.  Border patrol.  I even interviewed—the day I went down there that I told you about four years ago, I interviewed a border patrol agent who had been fired at by the Mexican military.  He had gotten there, seen what was happening, turned around, because they‘re under orders to get out of Dodge, because frankly, they‘re outgunned.  So our people don‘t confront, usually.  They turned around, and the Mexican military fired at him, fired through the rear window.  It hit the metal screen that separates him from—and it went out the driver‘s side.  Not too long ago...

CARLSON:  That is just—that is just shocking.  I mean, if everything you‘re saying is even a little bit true, and I have no doubt that it is all true, I think every American ought to know it, and I hope, Congressman Tancredo, that you bring it to their attention by ceaseless noisemaking on the subject.  Thanks—thank you for what you‘ve done and thanks for coming on. 

TANCREDO:  It‘s a pleasure, Tucker. 

CARLSON:  Thanks, Congressman.

Up next, a self-imposed brain drain.  Why are parents in California demanding their kids graduate high school, even though they flunked the exit exam?  We‘ll tell you when THE SITUATION comes back.


CARLSON:  Welcome back.

Lonoke, Arkansas, may be the most corrupt town in America, at least as of this week.  With a population of just over 4,000, the town‘s mayor, police chief and police chief‘s wife were arrested earlier this week.  Here to lay out the charges against them, which include making crystal meth and taking inmates out of jail to have sex with them, is Lonoke County prosecutor Lona McCastlain.  She joins us live tonight from Little Rock.


CARLSON:  Ms. McCastlain, thanks a lot for coming up.  I‘ve been to Lonoke, Arkansas.  I never noticed anything particularly odd about it.  I never bought crystal meth from anyone, never had sex with a prison inmate.  Tell me, what—what happened to this town?

MCCASTLAIN:  There‘s nothing odd and nothing bad about Lonoke.  It‘s a wonderful town.  We have had some extraordinary circumstances lately, and obviously, they‘ve made national news, but the people there are very good.  I mean, I think it‘s been a shock for them. 

CARLSON:  I believe it.  I mean, I remember it as a very good town.  What—tell me, the chief of police selling crystal meth?  His wife having sex with inmates?  What are the charges exactly against these two?

MCCASTLAIN:  OK.  The state has alleged charges against the chief for conspiracy to manufacture methamphetamine, conspiracy to commit residential burglary, theft by receiving.  Obstructing—let‘s see.  Let me look here.

CARLSON:  That‘s all right.  That‘s enough to satisfy me on that.

MCCASTLAIN:  Hindering—a couple of counts of hindering apprehension.  And then the chief‘s wife had several charges, about 11 different charges, from residential burglary, theft by receiving, theft of property, obtaining controlled substance by fraud.  Several different charges.  And then there were a couple of bondsmen that were charged, also. 

CARLSON:  Now, is it a crime to have sex with an inmate in Arkansas?

MCCASTLAIN:  It is a crime if you are contributing—furnishing prohibited articles to a prisoner.  And she...

CARLSON:  She‘s charged with taking them out of jail?

MCCASTLAIN:  She—she took them out of jail freely, and I think that‘s alleged in the affidavit.  And you will need to refer to that.  In Arkansas we have to be very careful about talking about the facts of the case. 

CARLSON:  Right.

MCCASTLAIN:  We cannot do that.  We are prohibited from doing that. 

CARLSON:  Of course, but just tell me what she is specifically charged with.  I mean, so she went to jail and got these guys out?

MCCASTLAIN:  Yes.  The police chief‘s wife is a charged with furnishing prohibiting articles.  Alcohol, we‘re talking about all different kinds of alcohol, marijuana, and she has provided sex to at least two of those, as the affidavit alleges by the investigator. 

CARLSON:  In jail?

MCCASTLAIN:  Well, at different places throughout the city and the county, actually, of Lonoke. 

CARLSON:  Ball parks, even. 


CARLSON:  Is it alleged that anyone saw this happening at the ball parks?

MCCASTLAIN:  They saw them at the ballpark interacting.  That is alleged.  But not actually having sex, no. 

CARLSON:  Was—just I can‘t stop my curiosity here.  Was the inmate wearing a prison jumpsuit at the time?

MCCASTLAIN:  No.  No, they were not.  These inmates were on loan from the Arkansas Department of Corrections, providing community service.  And so what they would be doing is providing, like, services to the community.  One of them would be working out at the ballpark.  You might have them washing cars, that type of thing.  So they had a little bit more access than you would have in the Arkansas Department of Corrections. 

CARLSON:  Well, they were serving the community, I mean, in some strict sense, I guess?  Still...

MCCASTLAIN:  A work release type program.  Yes.

CARLSON:  Right.  I guess she interprets that a little differently than the rest of us.  Now the mayor of the town has also been charged.  What‘s he been charged with?

MCCASTLAIN:  He was just charged with theft of services.  He had some of the prisoners do some personal services for him: put on his Christmas tree lights, garden a little bit, fix his front porch, those kind of things. 

CARLSON:  And I also read that they helped fix an air conditioning for him. 

MCCASTLAIN:  They did.  He paid them a little bit of money for that, so the—the affidavit alleges, but it was still improper.  And he was getting services that he wasn‘t really entitled to. 

CARLSON:  Can you just quickly sum up what the reaction is of the good people of Lonoke to all this?  They must be stunned.

MCCASTLAIN:  I think it‘s just—there‘s a shock there.  And you know, it‘s always disappointing when, as a law enforcement officer, I have to charge another law enforcement office. 

And you know, what we‘ve been trying to convey to the people of Lonoke and to the citizens is that, yes, we have a public trust issue here, but there are good people on that department and that we—everyone‘s going to be treated the same and that no one is above the law. 

And in Lonoke County, we have brought charges.  And we intend to seek justice for these individuals.  And we intend to have this community back to normal just as soon as possible. 

CARLSON:  Boy, good luck with that.  Lona McCastlain from Lonoke, thanks very much. 

MCCASTLAIN:  Thank you.  Bye.

CARLSON:  Still to come, what nighttime activity is most arousing to modern couples?  You‘ll be shocked to learn the depressing answer when we come back. 


CARLSON:  Welcome back. 

America is losing its edge.  That‘s the lesson of this next story. 

For the first time high school seniors in California have to pass an exit exam, which includes eighth grade level math and 10th grade level English.  But if those standards aren‘t low enough for you, some parents want their kids to graduate, even if they fail that test. 

Arturo Gonzalez is suing the San Francisco Board of Education on behalf of 10 families who say the test is unfair and illegal.  Mr.  Gonzalez joins us tonight live from San Francisco. 

Mr. Gonzalez, thanks for coming on.


CARLSON:  So if your kid can‘t pass a test with questions that reflect eight grade level math and 10th grade level English, why should he graduate?

GONZALEZ:  Well, let me first of all correct something.  This test includes algebra and geometry, which I don‘t think we teach in the eighth grade.  That‘s 10th and 11th grade.

But having said that, we represent the students in California who have passed all of their courses and met all the requirements for high school graduation, including passing math, English, government and history, but they haven‘t been able to get over this hump. 

And we don‘t think it‘s a good educational policy, we don‘t think it‘s legal for the state, after 13 years of public instruction, to say to a kid, “You know what?  You‘re not going to get a diploma, because you can‘t pass this one test.” 

CARLSON:  Wait a second.  The test is a measure of knowledge they have supposedly learned over those 13 years.  If they haven‘t—haven‘t learned it, why should they graduate? 

Moreover, as far as I understand, you can talk the test multiple times, can you not?  And you only need to answer a little over half the questions correctly.  I mean, this is not, you know, the A.P. European history exam.  This is a pretty easy test. 

GONZALEZ:  Well, you know, you would think it would be easy, but some of the questions are not. 

Having said that, the test, first of all, it‘s a different test every time.  It‘s not—you don‘t get the same question four or five different times. 

But having said that, you‘ve got to go back to the premise that these are kids who have passed all of their courses, including math, English.  And look, one of my clients had a 3.8 GPA.  Another one of my clients has a 4.0 GPA. 

Now, either, A, the test is not as easy as they claim, or, B, if you want to argue grade inflation, like some folks have, then you‘ve got a problem with the schools.

But our point is this.  You can‘t blame the kid.  You can‘t blame these kids who have done well in school, passed all their classes, met the requirements, and then say to them for the first time—this is, by the way, 150 years ago is when we had our first public high school in California. 

Now, after 149 years, we‘re telling them, “You know what?  It doesn‘t matter what you‘ve done the last 13 years.  Doesn‘t matter you passed all your classes.  Doesn‘t matter if you‘re on the honor roll.  Doesn‘t matter if you got straight A‘s.  If you can‘t pass this test, you‘re not going to graduate.”  We don‘t think that‘s sound (ph).

CARLSON:  But Mr. Gonzalez, that‘s the truth, and you know it.  Because in the end it doesn‘t matter what some teacher gives you as a grade.  It doesn‘t matter if you‘re on some honor roll.  It matters what you know.  It matters whether you‘re educated or not.  That‘s the only measure that matters. 

In later life, no one cares at all if you were on the honor roll in some high school in California or any place else.  They care about what you‘re educated or not, and that‘s what this test measures. 

GONZALEZ:  Actually, I disagree with that.  I think people don‘t care

what you get on a standardized test.  That‘s what I think.  If you think

about it, most universities, when they look at students for admissions,

they don‘t just look at your SAT Score.  If what you were just saying is

true, then every university in the United States—Harvard, Yale, Stanford

would only look at your SAT, because that supposedly measures how smart you are. 

CARLSON:  But if what you were saying is true, they wouldn‘t have SAT‘s.  And they do.


CARLSON:  Because we all recognize that, as flawed as standardized tests might be, there has to be some objective way to measure all students, whether they go to great schools, whether they go to poor schools.  There has to be a way to determine whether they‘ve learned something or not. 

GONZALEZ:  Two things.  No. 1, we‘re not saying you shouldn‘t have a test.  If you want, you can have a test and you can include the score in the transcript.  And then the employers and the universities, they can look at your grades.  They can look at your personal statement.  They can look at what your teachers think about you, and they can look at the test score if it‘s that important. 

All I‘m saying is that shouldn‘t be the one and only indicator or whether or not you receive a diploma.  You see, there are other ways to measure someone‘s knowledge, not just a test. 

CARLSON:  But don‘t you think—don‘t you think—I mean, this isn‘t helping the kids.  That is patronizing them. 

Moreover, you‘re saying you can‘t blame the kids.  Of course you can blame the kids.  A lot of kids are lazy, including me.  I was lazy in high school.  I didn‘t do very much work.  Therefore I didn‘t get very good grades.  Therefore, I had a lot of trouble, you know, moving on to the next level academically.  Right?

There are a lot of kids who don‘t do enough work and get good grades anyway.  Why not hold them to account?

GONZALES:  You see, those aren‘t the kid we‘re talking about.  In California, sadly, half of the kids who start high school in the ninth grade don‘t make it to their senior year.  So these lazy kids, these goof-offs, they drop out.  You lose them.

We‘re a talking about the survivors.  We‘re talking about the kids who stayed in school for four years, made it, passed all their classes and, by the way—this is important.  You need to understand this.  We‘re talking about kids in many cases who have been taught math by teachers who are not certified to teach math. 


GONZALES:  And we‘re talking about...

CARLSON:  You have a teacher problem in California.  Maybe you should start there. 

GONZALES:  You know what?  We‘ve got—we just don‘t have enough teachers who are certified to teach math.  We don‘t have enough teachers who are certified to teach English learners.  Last year we had more than 13,000 classes with kids who were learning English and they were being taught by teachers who are not certified to teach English learners. 

I don‘t blame the teachers for that.  We just don‘t have enough teachers certified in this area.

CARLSON:  So you don‘t blame the teachers.  You don‘t blame the kids.  You don‘t blame the parents.  I don‘t know who we blame.  Mr. Gonzalez, thanks for joining us. 

GONZALES:  Sure.  Thank you.

CARLSON:  Stay tuned.  There‘s still plenty more ahead on THE



CARLSON (voice-over):  The new sex.  We go to the mattresses to expose what couples are really doing behind closed doors.  You may find this undercover investigation a real eye opener.

Then, from the mouths of babes, the shocking tale of how a bus trip almost turned into a drug trip for some unsuspecting school kids. 

UNIDENTIFIED MALE:  That was something that was suspicious. 

CARLSON:  Plus, move over G.I. Joe.  There‘s a new macho man in town. 

And he wants his dolly back.

And really cool video of a smokestack exploding.  Ladies, it‘s a guy thing.  It‘s all ahead on THE SITUATION. 


VANESSA MCDONALD, PRODUCER:  Coming up, have we become so lazy that we‘d rather spend our money on better sleep than on better sex?  An alarming new report says yes.

CARLSON:  This is awful.  THE SITUATION returns in 60 seconds.


CARLSON:  Welcome back.  When you walk in your bedroom, what do you think about first, sleep or sex?  If you said sleep, first of all, I feel sorry for you.  But you also help to explain a disturbing new study published in “Forbes” magazine. 

With all the time and money now being spent on achieving a better night‘s sleep, “Forbes” says sleep is now the new sex.  Here to explain this horrible new trend, the director of the Berman Center for Women‘s Sexual health, Laura Berman.  She joins me live from New York City tonight. 


Happy to be here.

CARLSON:  This is depressing as hell.  Is this real?

BERMAN:  Well, in many ways it is real.  We are sleep deprived as a nation.  And we are trying to fit too much into 24-hour day.  And I think the main—and sleeping pills and sleeping aids and sleeping mattresses, “Forbes” is right, are on overdrive and being sold like crazy.  But I think the main reason people are sleepless is primarily because of stress and depression more than anything else. 

CARLSON:  Not because they‘re having too much sex?

BERMAN:  No.  They‘re not having enough sex.  And ironically, the amazing part is that sex can actually really help you with sleep. 

And what ends up happening is that you try to pack too much in.  You get into bed.  You‘re stressed.  You‘re uptight.  And then you start getting stressed about not being able to fall asleep, and that keeps you even more sleepless. 

Instead, you should try having sex.  It will help you sleep, because it releases endorphins and you feel better about yourself.  Or try to relax; give each other a massage.  Or you can do two for one.  In fact, I was just seeing that KY came out with a two in one massage/touch product where it doubles as a massage lotion or massage product, as well as a lubricant.  So you can get two for one. 

CARLSON:  At KY, they think of everything. 


CARLSON:  Can you imagine a scenario in which sleep porn becomes popular?

BERMAN:  There you go.  You can wear those glasses or, you know, blindfold that has a video image running.  And that will be the new kind of sex.  You can get—you know, we like multitasking, so you can get two done at once. 

CARLSON:  Is there really a sleep crisis?  I mean, are people—it seems like one of those perennial stories, like LSD is coming back.  “TIME” magazine does a cover on that every decade or so.  Is there really a sleep crisis, though?  Are people really sleeping less?

BERMAN:  They really are.  And it is a real issue because it becomes a vicious cycle.  As we sleep—we‘re stressed and depressed, and so we‘re not sleeping.  And we‘re trying to fit too much in and we‘re too anxious and we‘re too worried about everything we have to get done.

And we don‘t get enough sleep and that not only represses our immune system, but it makes us more stressed and depressed, and the cycle continues.  We need to look at this as a society and Americans, because it‘s not only, you know, the fact that we‘re avoiding sex, but we‘re really not taking care of our bodies and ourselves and making that time for sleep. 

CARLSON:  If you were to give three tips—and I know you had a show with your sister that provided tips like this.  I thought it was a great show.

BERMAN:  Thank you.

CARLSON:  You‘ve got another show coming up on Showtime...

BERMAN:  I do.

CARLSON:  ... this summer, I think, on this topic.  What are your quick sex tips for improving the intimacy in your life?

BERMAN:  Well, I just—I actually just did a big study on intimacy and found that couples who kiss regularly and spontaneously not only have higher levels of intimacy, general intimacy, but also have decreased levels of stress and depression. 

So instead of taking those sleeping aids, sleeping aids and buying that $1,000 mattress, try just kissing your partner more and cuddling them more. 

We also found that sexual satisfaction not only is a stress reliever but impacts intimacy.  Taking a vacation together, going on a date night a week, taking care of yourself, exercising.  All of that will do great things for your stress levels, to alleviate depression, to enhance your relationship, which really enhances your quality of life and your sense of well being, which will all contribute to your sleep. 

And if you do have a sleep problem that is really significant, before you start popping those pills, go to a sleep lab, go to a behaviorist.  Don‘t get caught into the cycle of taking these pills in a way that‘s going to make you dependent and just create the problem—you know, be a band aid for a much larger problem. 

CARLSON:  Yes.  I think that‘s wise advice.  And finally, in one word, your choice is dinner or a movie.  Not dinner and a movie.  Dinner or a movie.  What do you choose?

Definitely dinner, because a movie, you‘re not talking to each other. 

CARLSON:  I totally agree with you.  You‘re a wise, wise woman.  Thank you. 

BERMAN:  Thank you.

CARLSON:  Coming up on THE SITUATION, one of the greatest athletes of all time is quickly finding himself in the middle of a major sports gambling scandal.  We‘ll tell you why Wayne Gretzky could be in deep trouble soon. 

Before we go to break, we want to tell you about a major fund-raising effort called the Intrepid Fallen Heroes Fund.  It will help seriously disabled veterans.  MSNBC is proud to join the effort to raise $30 million to build a state of the art rehabilitation facility in San Antonio, Texas.

To learn how you can help, go to FallenHeroesFund.org.  Or you can call 1-800-340-HERO.

We‘ll be right back.


CARLSON:  Welcome back.  There‘s an old Cheyenne proverb: “Beware of the man who does not talk and of the dog that does not bark.”  Joining me now, a man who talks enough to satisfy even the most discriminating Cheyenne, “The Outsider,” ESPN Radio and HBO Boxing host Max Kellerman. 

MAX KELLERMAN, ESPN RADIO:  I‘m going to say, “Woof woof.” 

CARLSON:  You‘ve got them both covered.

First a story about America‘s obsession.  It‘s something everybody talks about, even here on THE SITUATION about three minutes ago.  You probably think about it several times a day.  Some of you may actually be doing it as we speak right now. 

The subject: sleep.  Sure, we can‘t get enough of it, but the question of the night is, Max, is sleep the new sex?  I think sex is the new sex. 

KELLERMAN:  Well, can you go in a little—elaborate, please. 

CARLSON:  I just think people who would voluntarily choose sleep over sex, that‘s giving up.  I mean, you might as well be dead.  I mean, at that point.

KELLERMAN:  People don‘t get enough sleep.  I mean, they rarely get enough sleep.  And the guest that you just had on I think was incorrect in the idea that people are trying to pack too much into their day and therefore feel wound up and can‘t go to sleep. 

People who pack a lot into their day and get it done...

CARLSON:  Right.

KELLERMAN:  ... feel fulfilled at night, are tired out from doing all that stuff, go right to sleep.  It‘s people—and many of us—I‘m included in this category—who don‘t feel like they‘ve fulfilled their day, you know, gotten enough into their day, that have actually gotten enough stuff done, that are trying to extend the day and kind of not going to sleep, watching TV and reading. 

CARLSON:  People who are sexually intimate with the person they love are finding themselves, you know, lying there and going off to sleep in a very peaceful, happy way.  They have no trouble sleeping and they get enough sleep. 

KELLERMAN:  But see, there‘s the word intimate.  When you‘re talking about sex or sleep, let‘s take marched couples.

CARLSON:  Right.

KELLERMAN:  Because that‘s what we have in mind.  You go to bed with your wife, you have sex, you‘re going to go to sleep.  For men.  For women, yes, intimacy is positively correlated with sexual feelings.  I believe that.

CARLSON:  Right.

KELLERMAN:  Not for men so much.  Men look at women, they objectify them and turn them into sexual objects.  And that‘s what...

CARLSON:  First of all, I‘m not going to admit that, and nor do I think you shall.  The point is that if you are voluntarily choosing sex over sleep (sic)...


CARLSON:  ... you are choosing a passive life.  You are choosing death over life.  Because sleep is a kind of—it‘s a kind of rehearsal for death.  It is.

KELLERMAN:  I understand.  But you‘re going to the bedroom at the end of the night, and you‘ve got a good—you‘ve got a good book.  And there‘s the bed and it‘s comfortable.  You‘ve got the A.C. going.  And it‘s, you know.

CARLSON:  Make an effort, Max.  Come on.  Come on.

KELLERMAN:  What else could be—what could be better?

CARLSON:  Buck up, son (ph).

Moving on now from sex to scandal, hockey legend Wayne Gretzky is facing charges he knew about a sports betting ring that involved his wife and his assistant coach. 

Investigators say about half a dozen current National Hockey League players placed bets with the ring on several different sports.  They‘re looking into whether anyone involved wagered on NHL games. 

Authorities say the ring may have had a connection to organized crime in Philadelphia and southern New Jersey.  But who doesn‘t?  There‘s no evidence that Gretzky himself placed any bets on anything. 

I think they‘re beating up on Wayne Gretzky because he‘s famous.  Who cares if his wife was involved in this?  I hate picking on Wayne Gretzky‘s wife, first because she‘s so pretty; second, because she‘s his wife.  Leave her alone.  But who cares?  It doesn‘t—it doesn‘t have anything to do with anything, as long as he‘s not fixing games. 

KELLERMAN:  The NHL cares.  This is so bad for the NHL.  This is their poster boy.  He‘s their Michael Jordan.  And he really was.  And he‘s just the golden child.  This is Wayne Gretzky, the face of the NHL.

They‘re just getting over this strike, and there was no season.  And no one really cares about the NHL in the first place.  But they had this hard core cult following.

And finally they‘re getting back, and maybe things will get better and then this has to happen to Wayne Gretzky?  Even the hint of a scandal around Wayne Gretzky is the—the NHL cares.

CARLSON:  I know you‘re actually right, but here‘s my question to you, and you would know the answer.  Why is it a scandal if his wife bet on sporting events?  Who cares?

KELLERMAN:  It shouldn‘t be, but what scares people in that world is it‘s a slippery slope.  First, if your wife‘s betting half a million dollars, there‘s a good chance, you know—each with Wayne Gretzky‘s money, it‘s not like you‘re not going to not notice a half a million missing. 


KELLERMAN:  So if Wayne Gretzky knows about it, his wife‘s betting, if he‘s any way involved.  OK, if it‘s on another sport, it doesn‘t matter.  Suddenly it‘s on a sport where he may have some inside information.  And then suddenly, maybe it‘s in his own sport.

Like with Pete Rose, who claimed at first, “Oh, I bet on football games.  But never on baseball.”  But then it turns out he was.  Yes, he did bet on baseball.  The question is, did he bet on Cincinnati Reds games?  It‘s a slippery slope, and it just freaks people out.

If you look at old baseball pictures, from the ‘20s and teens, you see big, you know, “No gambling” signs.  Now why would there be a “no gambling” sign?

CARLSON:  Because there was gambling. 

KELLERMAN:  Because there was a lot of gambling.


KELLERMAN:  I mean, this has been—this has been an ongoing issue in sports for 100 years. 

CARLSON:  I think it sounds like an ongoing issue in Wayne Gretzky‘s marriage.  If his wife is betting a half a million bucks, he‘s got to bet his wife under control.   But beyond that, I think we ought to leave the poor man alone. 

Max Kellerman, have a great weekend.

KELLERMAN:  No, Wayne Gretzky doesn‘t have any problems.  This is first problem he‘s ever had. 

CARLSON:  I guess that‘s right.

Still ahead on THE SITUATION, Oprah Winfrey is being launched into outer space.  We‘ll tell you how soon we can expect her to be in orbit, and how she‘s getting there, when we visit, of course, “The Cutting Room Floor,” next. 


CARLSON:  Welcome back.  Time for “The Cutting Room Floor.”  Joining us, a man sure to be caught up in a national scandal at some point, Willie Geist. 

WILLIE GEIST, PRODUCER:  I‘ve already been caught in a few.  You just don‘t know about them. 


GEIST:  I want to start this segment by thanking our great, great director, Mark Greenstein (ph).  It‘s his last show with us.  He launched the show.  He guided us through it, and now he‘s abandoning us, which is great. 

CARLSON:  He really is the best—honestly, the best director in television. 

GEIST:  He‘s the best director I‘ve had.  I‘m not just saying that because you could superimpose Star Jones‘ head on my body right now. 

Thank you, Mark.  You‘ll be missed. 

CARLSON:  Thank you, Mark.

When she‘s not making fraudulent authors whimper on national television, Oprah is busy expanding her empire.  XM Satellite Radio announced today it has signed Oprah to a three-year $55 million deal, because she does need the money.  She‘ll have her own channel, called Oprah and Friends.  It will launch in September.

Shares of XM stock shot up 10 percent with the announcement today. 

GEIST:  Oprah now just days away from actually becoming the tenth planet in the Solar System.  She has satellites rotating around her. She affects the tides.  She‘s unbelievable.  Congratulations to her on getting $55 million more. 

CARLSON:  I don‘t mean in any way, in any way, mean to disparage Oprah, because first, that‘s illegal.  Second, it has consequences.

GEIST:  Ask James Frey.

CARLSON:  Trust me.   I wasn‘t.

We have another reminder tonight that children should not take candy from strangers.  You see, sometimes that candy is the designer club drug Ecstasy.  Whoops.

A 10-year-old in Fort Wayne, Indiana, got onto a school bus this week, with 133 pieces of such candy and handed it out to his classmates.  Luckily, most of the kids spit the Ecstasy out when they tasted it.  Police are trying to figure out where the kid got the drugs. 

GEIST:  Yikes.  That is actually pretty scary.  They make these—you can see right there, the pills are a little too pretty.  They have smiley faces.  A fine line between Ecstasy and Skittles these days.  You know what I mean?

CARLSON:  Those look more like round Pez. 

GEIST:  Yes.  They‘re moments away from having a raid on that bus. 

CARLSON:  It‘s pretty scary.

GEIST:  It is.

CARLSON:  I‘d be pretty annoyed. 

We admit it; we‘re complete suckers for video of things being blown up.  It took 20 pounds of explosives to bring down this smokestack at an old Erie, Pennsylvania, brewery today.  The 155-fot tower had been a landmark in Erie since the 1800s.  It took just seconds for it to topple and turn into a pile of rubble. 

That offends me.  Why take something like that down?  It‘s cool.

GEIST:  It is cool.  We love the implosions, don‘t we? 

CARLSON:  We do.

GEIST:  It‘s only a smokestack, but I find it no less gratifying than a building coming down.  I‘m still lobbying for an all implosion channel.  You and I will start that.

CARLSON:  Look at that.  Look at that.  That‘s almost like a castration, symbolically.  I‘m not for it.  I‘m against it. 

GEIST:  That is. 


GEIST:  And the slow timber. 


Sometimes it talks the end of a relationship to make you realize your faults.  Such is the case with Barbie‘s former flame, Ken.  Two years ago, Ken and Barbie shocked the world by announcing they were separating after 43 years together.  Today Ken showed off the new body and style he hopes will win back Barbie. 

The stylist from Mattel says Ken has completely revamped his life.

GEIST:  Tucker, I‘m sorry.  This is a sad act of desperation by a sad man.  Let‘s talk to Ken man to man. 

Barbie didn‘t dump you because of your style.  She dumped you because you have no genitals.  So you‘re going to want to do your most severe revamping downstairs.  Don‘t you think?  It took her 43 years to realize it.

CARLSON:  She prefers sleep.  Actually, he looks like Donny Osmond now.  He‘s back in leather.

Willie Geist, thank you. 

GEIST:  All right, Tucker.

CARLSON:  That‘s THE SITUATION for tonight.  Thank you for watching.  Up next, “COUNTDOWN” with Keith.  Have a great weekend.  We‘ll see you Monday.



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