updated 4/25/2006 1:36:35 PM ET 2006-04-25T17:36:35

Guests: Susannah Meadows, Max Kellerman, Caitlin Flanagan, Rachel Maddow

TUCKER CARLSON, HOST:  Thanks a lot.  And we want to get right to that SITUATION exclusive on the Duke rape investigation. 

Recently, I spoke with length with someone very close to this case.  The person was at the lacrosse party.  He asked me not to identify him.  He was an eyewitness to the events of that night, though, the night of March 13th, and has first-hand knowledge what happened since. 

In the course of a long conversation, he told me there were several people at the party who were not members of the Duke lacrosse team and that they were not asked to give DNA samples.  He also said that at least one of the indicted players has never been interviewed by police. 

So how serious are these lapses?  And they are lapses by the prosecution.  Does D.A. Mike Nifong have a case at all? 

For answers, we turn now to Susan Filan, MSNBC legal analyst and former prosecutor.  She joins us tonight from Stamford, Connecticut.

Susan, thanks for coming on. 

SUSAN FILAN, FORMER CONNECTICUT PROSECUTOR:  Hey, Tucker. 

CARLSON:  Have you—well, let‘s just in order here—have you ever heard of a case in which the potential defendant was present, not off in some country, not on the run, not on the lam, but present and available in which that person was not even interviewed before being indicted? 

FILAN:  Of course, Tucker.  You don‘t necessarily give the defendant his due before he‘s arrested.  If you‘ve got witnesses, if you‘ve got facts, if you‘ve got corroborative evidence that tends to show probable cause that a crime has been committed and that person committed the crime, you don‘t have to tip your hand to him and say, “Hey, you‘re our key suspect.  We‘re going to clue you in on it, give you a chance to run, tamper with evidence, destroy evidence.”  That‘s just not the way it works. 

CARLSON:  You don‘t even—well, and just to be totally clear, in this case it‘s not at all clear that any of those things are in the possession of the D.A., Mike Nifong.  We know he has apparently a positive I.D. from the alleged victim.  We don‘t know that there‘s any corroborating evidence, circumstantial or otherwise, beyond that. 

But why wouldn‘t the police at least ask these two players:  Did you do it? 

FILAN:  Because what are they going to say, yes?  Of course they‘re going to deny it.  And that denial is going to do nothing to further the prosecution of the case, and it may actually in some way impair later on their ability to defend themselves. 

If they‘re actually suspects, and they‘re going to be questioned, they have to be given their Fifth Amendment rights, their Miranda rights.  And so they have an obligation to tell them, “Look, you don‘t have to talk to us.”  What are they going to do?  They‘re going to lawyer up.  So it‘s an exercise in futility.

CARLSON:  Well, wait, wait.  Hold on, hold on, hold on, hold on.  I mean, I‘m not a former prosecutor.  I have covered crime quite a bit, and I know that it is, in fact, in most cases, in almost every case I‘ve ever been around, standard practice to bring the guy in and say, “What‘s your side of the story?”  I mean, just for the record, that‘s really common.  I know it is; I‘ve seen it. 

FILAN:  Well, it may have happened in the cases that you‘ve seen.  It may be common in the cases that you‘ve seen, but how many is that?  I mean, there are procedures in place for investigating and prosecuting crimes.  Giving the defendant an opportunity to speak is not always one of them. 

CARLSON:  Well, how about gathering information about the case beyond an eyewitness—beyond, you know, identifying a photograph three weeks later? 

What about the second point, that there were, it turns out, we have learned, other people at this party who were not members of the Duke lacrosse team?  That were young, white men, several of them, at least five.  And in some cases they offered to give DNA to Mike Nifong, the D.A., and that offer was turned down by him. 

FILAN:  OK.

CARLSON:  That‘s a deal killer. 

FILAN:  Tucker, that‘s troublesome.  That‘s a problem. 

CARLSON:  Troublesome?

FILAN:  That‘s a problem, because the D.A. and law enforcement have an obligation to investigate this case fully and thoroughly.  If there‘s information out there that there were non-lacrosse players at that party, they have to know who they are. 

But I read in the “New York Times” that the three co-captains that rented this house were asked to give a list of the people that were at this party.  They gave a list of 41 of the 46 lacrosse players.  They left Reade Seligmann‘s name off that list, and I don‘t know...

(CROSSTALK)  

CARLSON:  That may or may not be true, but I think we can...

FILAN:  Wait a second, Tucker.  I don‘t know whether they gave the police the names of the police that you‘re saying weren‘t lacrosse players.

CARLSON:  It may or may not be true that Reade Seligmann‘s name was left off that list.  It is certainly true that Reade Seligmann himself has never disputed the fact he was there.  There are photographs placing him at the party.  He has never denied it.

So that‘s irrelevant, as far as I‘m concerned. 

FILAN:  No, but what I‘m saying is...

CARLSON:  But, again—hold on—there were also these other non-Duke lacrosse players.  And the fact that their photographs weren‘t spread out, apparently before the alleged victim here, and that their DNA was not taken suggests to me that this D.A. is looking only at Duke lacrosse player. 

Why?  As if the rape could have been committed only by Duke lacrosse players?  That sounds like animus to me; that doesn‘t sound like an investigation.  That sounds like the axe being ground.

FILAN:  I‘m not going to go so far as to say that it‘s animus or he‘s got a particular axe to grind. 

CARLSON:  Well, what‘s the other explanation? 

FILAN:  Well, I think it may be very troublesome.  And I think it may be a problem.  I think he may have, unfortunately, limited the universe of suspects to just lacrosse players because that‘s what the complainant told him. 

Now, she also said—and this is in the affidavit supporting the application for the search warrant—that the guys were using other names to try to obscure their identities.  They were calling each others by their jerseys. 

So she may have thought someone was a lacrosse player, because they said so, and they actually were a different sports player, but she may have gotten confused by their own actions.  But still the D.A. has to check it out. 

CARLSON:  In the little bit of time we have left, all the facts that have come out about this one person accused, Reade Seligmann, from Duke, how long is it before the charges are dismissed against this guy?  It seems to me he‘s obviously innocent.  Do you think they‘re going to actually go to trial against Reade Seligmann? 

FILAN:  Here‘s my prediction, Tucker:  She‘s not going to go forward with this prosecution.  At some point, she‘s going to say the media scrum is too much, the death threats are too much, I can‘t take it, it‘s too much pressure.  It‘s going to be game over for this case, because she‘s going to say, “You can‘t go forward without me, and I‘m bowing out.” 

CARLSON:  Then there are going to be some serious apologies due in this case, and I hope they are given.  I really do. 

Susan Filan, thanks a lot for joining us.

FILAN:  You‘re welcome, Tucker. 

CARLSON:  Well, the facts of the Duke case are still in dispute, but what is clear:  that this should be strictly a criminal investigation.  But it has been complicated by other factors, especially the factors of race and class. 

A perfect example:  this week‘s “Newsweek” cover story.  Under the banner headline, “Sex, Lies and Duke,” it includes such details as the assessed values of the indicted players‘ family homes, as well as their father‘s occupation, in one case the weekend house, whether they own a boat or not.  Who cares? 

Does any of this have to do with whether a rape was committed that night in March?  Here to talk about that, Susannah Meadows.  She‘s a senior writer at “Newsweek” and a graduate of Duke, and the co-author of this week‘s cover story.

She joins us from New York.  Susannah Meadows, thanks for coming on. 

SUSANNAH MEADOWS, “NEWSWEEK”:  You‘re welcome. 

CARLSON:  Now, reading your piece here, what do the details, the purchase price, for instance, of these kids‘ parents‘ homes have to do with whether or not they committed rape? 

MEADOWS:  Oh, I don‘t think it has to do—I don‘t think it has any import as to whether or not they committed rape, but we‘re trying to sort of explain who they are, where they come from. 

And I think that, in any criminal case, money is relevant.  How good of an attorney can you afford?  How deep are your pockets if there‘s a civil case?  All those things.  I think it‘s just sort of interesting and relevant background information. 

CARLSON:  Well, there‘s been this implication in a lot of the coverage of this story that their background, the fact that some of these kids are from affluent backgrounds, went to private school, is somehow relevant to the rape allegations themselves, as if, I don‘t know, affluent prep school kids are more likely to commit rape, which is not true.

MEADOWS:  No, I think that‘s an absurd claim.  But we‘re telling a long, in-depth story, and I think our readers want to know who the guys are. 

CARLSON:  You will concede, though, in most stories about crimes, most crimes are committed by people in the lower part of the economic scale against people who are at the same part of the economic scale.  Their backgrounds are not—I don‘t know—explained to the reading public.  They‘re not considered relevant.  I wonder why they are here. 

MEADOWS:  I think, though—I think one of the big reasons that everybody has been so interested in this case is that it is a clash between different parts of this community.  You have the sort of wealthier part at Duke and then the sort of more middle-class Durham, hard-scrabble community. 

And I think that sort of clash that night, regardless of what happened, it sort of—the women were there, and something happened or something didn‘t, but, anyway, I think that that kind of intersection is what makes—is part of what makes this case so compelling. 

CARLSON:  There‘s a paragraph in your piece.  I want to read it to you, put it up on the screen.  “Strutting lacrosse players are a distinctive and familiar breed on elite campuses along the Eastern Seaboard.  Because the game until recently was played mostly at prep schools and at upper-middle-class communities, the players tend to be at once macho and entitled, a sometimes unfortunate combination.” 

Why is that sometimes an unfortunate combination? 

MEADOWS:  Macho and entitled? 

CARLSON:  Yes. 

MEADOWS:  I guess, personally, I‘m not sure I find those qualities—

I don‘t know.  I think it helps explain, maybe, why they had hired strippers.  Maybe it helps explain why there were racial slurs that night.  I mean, these are things that have not been disputed. 

CARLSON:  Well, wait.  Wait.  I‘m not sure I follow you, because they‘re macho and entitled, they‘re more likely to be racist? 

MEADOWS:  No.  But if they were racist, saying racist things that night, which we know that they were, and if there was a lot of heavy drinking, and if they‘re hiring strippers, the reputation of a lacrosse team as being sort of macho and entitled might help to explain where that comes from. 

I think we really just wanted to look at what sort of—regardless of whether a rape happened that night—the undisputed aspects are pretty ugly.  I think—I mean, they certainly are to me.  And I don‘t think anyone would disagree.  I mean, even their defense attorneys...

CARLSON:  Well, I think a lot of people would disagree.  I think a lot of people would disagree with your characterization of those, the racial insults, that, we know, for example, for certain that they happened.  I‘m not sure we know anything for certain in this case. 

And I‘m not certain that everyone would agree that, because you‘re macho and entitled, whatever that means, rich and white, I guess, is what you mean, that...

MEADOWS:  No.  No, no, no.  I think you‘re not understanding me.  What I‘m saying is the defense attorneys have not disputed these racial slurs.  And a neighbor I spoke to overheard a racial slur.  So, yes, you‘re right; we‘re never perfectly certain, but in that—you know, we can feel pretty sure...

CARLSON:  But you‘re using stereotypes, is what you‘re doing, as a kind of shorthand.  And it seems to me kind of ugly, honestly. 

MEADOWS:  No, no, no.  Let me speak.  Let me finish my point.  We know that they hired strippers.  I mean, that‘s one thing we are sure of. 

And so, in looking at this, we‘re trying to look at, well, OK, what spawned that night?  What culture, what background allowed that night to take place, even on the minimum, you know, what we know minimally at this point? 

CARLSON:  But you wouldn‘t do that for people of any other background, and that‘s the obviously point that I keep making.  If these were poor, black people or American Indians on a reservation, you wouldn‘t say, “You know, their culture spawned this kind of behavior.”  You would be loathe to do that, because you‘d be called a bigot for so doing.  And I‘m merely—no, and you know that that‘s true. 

MEADOWS:  I don‘t think so. 

CARLSON:  And I‘m just saying like, for instance, you have in here

that they were alleged—people on the lacrosse team.  You don‘t name the

individuals, you just say, “Apparently some were given to, quote, ‘kicking

in doors and urinating out windows.‘” 

MEADOWS:  Well, that‘s not made up.  That comes out of reporting. 

CARLSON:  Comes out of reporting?  Did you talk to someone who saw an individual urinating out of a window?  And, if so, who was it?

MEADOWS:  My reporter, my colleague who I had several reporters working on this story with me.  And, I mean, we don‘t...

(CROSSTALK)

CARLSON:  Look, I have urinated out of a lot of windows.  I did it the other day.  I don‘t think there‘s anything wrong with that.  It doesn‘t make me a rapist.  Do you see what I‘m saying.  It doesn‘t have anything to do with the allegations.  And I just thing, again, it‘s unfair.  It‘s a way of attacking these kids when you don‘t have the evidence they really did anything wrong. 

MEADOWS:  No, I disagree.  In no way does this information suggest that they did the rape.  I mean, you read the piece.  You know that we spent a lot of time talking about...

CARLSON:  I did.  And parts of the piece were really informative.

MEADOWS:  OK, but let me finish. 

CARLSON:  Yes. 

MEADOWS:  We spent a lot of time talking about how Reade Seligmann‘s -

what the evidence that his attorney has presented is incredibly convincing.  And we talk about, you know, what the prosecutor is up to, and all that.  So there‘s no suggestion. 

This is just purely—every character in the story is developed.  And we look into what is behind—we talk about the second dancer, what her background is.  We talk about the prosecutor, what his background is.  You were saying that we would never talk...

CARLSON:  Well, you don‘t talk about the accuser and what her background was, I noticed. 

MEADOWS:  Well, we have in the past.  And everybody else has.  We all know that she—in 2002, she stole a taxi cab, and she went on a high-speed chase, and she tried to hit a police officer. 

CARLSON:  I don‘t know how much her parents‘ home cost, but I look forward to that “Newsweek” piece.  I hope it‘s coming out soon.

Unfortunately, we‘re out of time.  Susannah Meadows, thanks for joining us.

Still to come, gas prices are soaring while oil executives are profiting big time.  What can be done to reduce our pain at the pump?

Plus, why is the BTK Killer suddenly receiving special privileges in prison?  Should a serial killer be allowed to watch this show why behind bars?  We‘ll tell you in just a minute.

(COMMERCIAL BREAK)

CARLSON:  Now to a story that is almost certain to bother you: 

skyrocketing gas prices.  The national price for gasoline shot up more than 13 cents over the last week.  That puts it at an average of $2.91 a gallon nationwide.  That‘s the fourth-highest average retail price on record.

This at a time when Exxon-Mobil‘s retiring chairman, Lee Raymond, collecting a pension of nearly $400 million.  America‘s anger has not gone unnoticed on Capitol Hill, where top Republicans are calling for a price gouging investigation.  Senate Democrats, meanwhile, want a windfall profit tax.  Will that be enough for motorists who are being driven crazy? 

Joining me now, a man who knows exactly how Washington works, MSNBC‘s own Joe Scarborough, live at 9:00. 

Joe Scarborough, now, Joe, I‘m not an economist.  Can you just answer a very simple question for me:  The price of fuel has gone up of oil, partly because of demand in China, partly because of supply reasons, having to do with Iraq.  But it‘s gone up; we know that.

Why have profits at the oil companies risen, too? 

JOE SCARBOROUGH, MSNBC HOST:  Because they‘re price gouging. 

CARLSON:  Is there any other explanation? 

SCARBOROUGH:  No, there‘s not.  Now, what they will tell you is that there‘s a limited number of refineries in America.  Therefore, because there‘s a limited refinery capacity, somehow that means they‘re making a greater profit.

But I don‘t know, Tucker.  I don‘t think $30-dollar oil costs anymore to refine than $70-a-barrel oil.  There is no economic explanation as to why, when there‘s a shortage, Exxon-Mobil makes so much money that they can give their CEOs $400 million in retirement packages. 

CARLSON:  Well, how, as a political matter, this seems pretty stupid to me.  We don‘t regulate energy companies very much in this country, and I don‘t think we ought to, but taking $400 million out of a company when you leave at a time when gas prices are at record high, profits at your company are a record high, you‘re begging Congress to regulate you at that point.

SCARBOROUGH:  Well, you are begging Congress.  But, unfortunately, the oil companies know that in George Bush and Dick Cheney, two people that I supported, two people that I voted for twice, two people that I‘d vote for again if they were running against John Kerry and Al Gore, you‘ve got two people who are oil-state politicians, one from Texas and one from Wyoming. 

Both of them, I mean, their hearts are in the oil company.  And so they think—you know, they say let market forces prevail.  But, like you said, market forces aren‘t really prevailing here, are they?

CARLSON:  Well, almost by definition, it‘s something of a monopoly, just because the infrastructure required—you know, the pipelines, for instance, from the Gulf to the distribution points around the country, they‘re prohibitive.  You can‘t build new ones, essentially.  You can‘t build new refineries. 

SCARBOROUGH:  And, again, you can‘t force them to do the right thing for consumers, where, again, you have Exxon that‘s making $39 billion in the last-quarter last year.  It was the biggest quarter—at the time, the biggest profit earnings for any American corporation in a single quarter, and yet they‘ve told their stockholders they will not use that money to build new refineries. 

So they claim there‘s a refinery shortage.  They make the biggest profit ever, not only for their corporation, but for any corporation in America, and yet they aren‘t going to do who it takes to correct these market forces that have gone askew. 

I mean, there are Republicans—and we‘ve talked about it before—

Teddy Roosevelt would not allow this to happen. 

CARLSON:  No, no, he certainly wouldn‘t.  Now, I mean, the irony is they support Republicans; Republicans support them.  They‘re going to end up screwing Republicans, because of their close association with them, come November, as far as I‘m concerned, unless this administration and Congress, the Republican Congress, show that they are doing something to make gasoline cheaper.  What can they do? 

SCARBOROUGH:  There‘s no doubt about it.  And, you know, when I was in Congress, people always felt free to come up to me, whether I was at a Little League game watching my kid, or whether I was coaching my kid, or whether I was eating Christmas Eve dinner, people would always come up and talk to me. 

When I got onto TV—maybe it‘s the scowl on my face—they stopped bothering me, but I‘ve had about 10 people come up to me this past weekend and said, “What are we going to do about the oil prices, Joe?” 

I was going through the gate at Pensacola Airport to fly up to New York this morning.  A TSA guy turned to me and he said, “Joe, we got to do something about gas prices.”  I mean, I‘m telling you, this is going to kill the Republican Party this fall. 

CARLSON:  It‘s not like campaign finance reform.  It‘s not one of those issues that only the eggheads care about.

SCARBOROUGH:  No, it‘s not.  Exactly.

CARLSON:  Bush is going to announce tomorrow an investigation into price fixing and gouging.  Is that going to have any teeth?  Will it help him politically? 

SCARBOROUGH:  No.  You know, as you know, presidents reach a certain tipping point where Americans turn them off.  I‘m afraid—even with Ronald Reagan, remember when Reagan was fighting in 1986 for Iran-Contra, not for Iran-Contra, but for the Contras in Central America?  It made a heck of a lot of sense to conservative Americans. 

CARLSON:  I agreed. 

SCARBOROUGH:  The rest of the country—I did, too.  The rest of the country had already turned Reagan off.  They‘ve turned George W. Bush off.  And I don‘t think there‘s going to be a second act of this American political life.

I think that George Bush is going to have a very rough two years, and nobody is going to believe that he‘s going to—whether you‘re talking about alternative fuel sources or whether you‘re talking about price-gouging investigations, until they see CEOs of corporation doing the perp walks...

CARLSON:  That‘s right.

SCARBOROUGH:  ... they‘re just not going to believe he‘s sincere.

CARLSON:  If he can lower my gas prices on his way out, I‘d be grateful.

SCARBOROUGH:  That‘d be awesome.

CARLSON:  Joe Scarborough, on at 9:00.

SCARBOROUGH:  All right.  Thanks a lot, Tucker. 

CARLSON:  Thanks Joe, I appreciate it. 

SCARBOROUGH:  Appreciate it. 

CARLSON:  Still ahead, strong words from Prince Harry about his role in the British army.  We‘ll tell you why not everyone in the British royal family is deranged and embarrassing.  That‘s next.

(COMMERCIAL BREAK)

CARLSON:  As the cost of higher education keeps creeping higher and higher, a lot of parents and their kids can‘t help but wonder if it is money well-spent.  A new article in “Forbes” magazine entitled, “Five Reasons to Skip College,” defends the position that those four years in schools just might be a monumental waste of time.

One of the writer‘s points is you could actually make more money investing the tuition than by blowing it on those post-modern feminist poetry classes.  And they‘re awful; I‘ve taken them. 

In tonight‘s “Top Five,” we take a lesson from some famous Americans who have dropped out in favor of some very successful, on-the-job training. 

(BEGIN VIDEOTAPE)

CARLSON (voice-over):  For many Americans, college might be the key to a bright future, but some have managed to unlock the door to fame and fortune without having a sheep skin to hang on their office walls. 

That even goes for the Oval Office.  Harry S. Truman was one of nine American presidents who didn‘t go to college.  If you did go to college, you probably know that George Washington, Andrew Jackson, Martin Van Buren, Zachary Taylor, Millard Fillmore, Abraham Lincoln, Andrew Johnson, and Grover Cleveland are the others. 

He may not have a diploma on his wall, but Woody Allen does have 16 Oscar awards and nominations on his mantle, that and a reputation as an accomplished jazz artist.  Not bad for a dorky drop-out. 

WOODY ALLEN, DIRECTOR:  I did the best I could.

PETER JENNINGS, FORMER HOST, “ABC WORLD NEWS TONIGHT”:  Peter Jennings for CTV National News.

CARLSON:  This Canadian export didn‘t even graduate from high school, but the late Peter Jennings earned his degree as a street-smart foreign correspondent...

JENNINGS:  Peter Jennings, ABC News, South Lebanon.

CARLSON:  ... then as the anchor of “ABC World News Tonight.” 

In 1960, Ted Turner was expelled from Brown University for having a girl in his dorm, but that didn‘t stop Ted from becoming an accomplished yachtsman, the spouse of an Oscar-winning actress, the biggest private landowner in America, and also a multi-billion-dollar media mogul.

TED TURNER, MEDIA MOGUL:  It is nice to be rich.  Rich is better than poor. 

CARLSON:  And finally, a pop quiz.  Why is this 22-year-old Harvard drop-out smiling?  Maybe because he knew back then that his software savvy was going to make him the richest private individual in the world, with a net worth exceeding $50 billion.  Microsoft founder Bill Gates definitely moves to the head of the class. 

BILL GATES, FOUNDER, MICROSOFT:  And it‘s a very natural thing for me. 

(END VIDEOTAPE)

CARLSON:  Good for Bill Gates. 

Just when you thought members of the British royal family spend all of their time humiliating themselves, along comes Prince Harry to prove them wrong.  Harry announced the other day that he will resign from the British military if he is not allowed to fight on the front lines of Iraq or Afghanistan.  You don‘t have to agree with either one of those wars to be impressed. 

Talk about other options.  Here‘s a kid who could easily spend the rest of his life sampling esoteric cognacs and shtad (ph) with swimsuit models.  And, instead, it‘s his one desire to walk around Basra with a flak jacket.  Well, once I tip my cap to the royals, at least to one of them any way.  Congratulations. 

Still to come, Hillary Clinton‘s about-face on immigration.  Why is this senator, who recently told us that Jesus himself would probably help out an illegal alien, is now talking about building a wall between the U.S.  and Mexico?  Good question. 

Plus, the mommy wars.  “The New Yorker‘s” Caitlin Flanagan on the last of a dying breed:  traditional housewives.  Is the most offensive thing a woman can say really, “I want to stay home with the kids”?  We‘ll ask her, when THE SITUATION comes back.

(COMMERCIAL BREAK)

CARLSON:  Still to come, Hillary Clinton changes her political spots once again.  I‘ll tell you which group the presidential candidate-to-be is trying to appease this time. 

Plus, more on the news of the old man arrested for giving door-to-door breast exams.  Do the national media owe this guy an apology?

We‘ll get to that in just a minute, but first here‘s what else is going on in the world tonight. 

(NEWSBREAK)

CARLSON:  The Right Reverend Hillary Clinton pounded the pulpit last month, preaching that Jesus himself would have been a criminal under the new proposed immigration legislation.  That was the new liberal version of her views on immigration.  Today, she‘s apparently a conservative. 

Senator Clinton told the “New York Daily News” she favors securing the U.S.-Mexico border with a wall or a fence.  She endorsed the so-called smart fence that would recognize approaching people from 200 yards away and alert the authorities.  In the same breath, Clinton said she favors citizenship for the 11 million illegal immigrants already here in this country. 

So which Hillary Clinton should we believe?  Here to help us answer that question, from Air America Radio, our old pal, Rachel Maddow.

Rachel...

RACHEL MADDOW, AIR AMERICA RADIO HOST:  Hi, Tucker. 

CARLSON:  ... welcome.  So what do you think of Hillary‘s plan for the wall?  She‘s endorsed a wall.  What do you think of that?

MADDOW:  I think I agree with her still that making it a crime to assist immigrants in any way is insane...

CARLSON:  Right, but the wall?

MADDOW:  ... and I disagree with her on the idea that building a Berlin Wall is going to fix the country somehow. 

CARLSON:  But it does tell you everything, both, about the national mood and about Hillary.  So people who are for the wall are for it on principle.  They think that our country...

(LAUGHTER)

No, but they are.  They are. 

MADDOW:  And in contrast, people who are against the wall are fools. 

CARLSON:  Well, I‘m not saying they‘re fools.  I think they‘re against it on principle, actually.  I do.  I think it‘s totally fair to be—if you‘re for illegal immigration, and some people...

MADDOW:  Ha!

CARLSON:  ... I‘m serious—then...

MADDOW:  I‘m not against the wall because I‘m for illegal immigration.

CARLSON:  I think people have principled reasons for being against the wall, and I‘m not denigrating people who are against the wall.  I‘m merely saying, if you‘re strongly against illegal immigration, it‘s kind of hard to argue against a wall.  It kind of is, in my view.  In any case...

MADDOW:  Watch me.  I will in just a second.

CARLSON:  But Hillary Clinton selling out her own beliefs, beliefs as she explained the other day in the most self-righteous possible terms, what do you make of this? 

MADDOW:  Tucker, this is not—I mean, there‘s no contradiction between saying the House bill that would make it a felony to assist an immigrant is wrong, but I‘m still in favor of a wall.  I disagree with her about the wall.

CARLSON:  Still in favor?  She‘s never told us that before. 

MADDOW:  Well, now she‘s in favor of a wall, so she‘s not changing her spots then.  This is not a Hillary-changing-her-spots story.  This is a Democrats finding a middle-ground-on-immigration story. 

CARLSON:  But it‘s not a middle ground.  It‘s not a middle ground at all.  The president, President Bush, the so-called right-wing president is not for a wall; there are a lot of conservative Republicans, a lot of Republicans, anyway, in Congress, not for a wall at all. 

MADDOW:  Right.

CARLSON:  In fact, the mainstream Republican position is against the wall. 

MADDOW:  Yes.

CARLSON:  So here a liberal, one of the most liberal senators in the entire Senate, Hillary Clinton, comes out and says, “I‘m for the wall.”  This is not politics as usual.  This is something big.

MADDOW:  No, because immigration is a complicated issue.  And the wall issue, while it sounds like it‘s the toughest possible thing to do about immigration, there‘s no reason, that I believe, that a wall would actually stop illegal immigration. 

Right now, there‘s a 14-mile wall from the Pacific Ocean to San Ysidro, right, to the direct east of San Diego. 

CARLSON:  Right.

MADDOW:  Fourteen-mile wall, it‘s got 40 tunnels underneath it.  So the Border Patrol has this wall there.  They are able to do it.  They‘ve found the 40 tunnels.  If you expand that to a 700-mile wall, you think it‘s going to be the same proportions.  We‘ll have 2,000 tunnels under that wall. 

CARLSON:  Yes, yes.

MADDOW:  So, you know, if you think that it‘s going to just be some magical blanket that‘s going to stop immigration, it‘s not. 

CARLSON:  No, I don‘t think anyone‘s suggesting it‘s going to be a magical blanket.  I think people are suggesting, correctly, that it will make it much more difficult to cross the border, and that that will keep a lot of people from doing it, because now it‘s really easy, so it‘s an invitation. 

But my point is...

MADDOW:  So they‘ll dig instead of run, OK.

CARLSON:  ... Hillary Clinton is, in fact, not a left-wing maniac or a right-wing maniac.  She is merely a weather vane, like her husband.  This just shows that Hillary Clinton, really, at the core, believes very little.

MADDOW:  Tucker, she hasn‘t changed her opinion.

CARLSON:  And this also shows that public opinion is behind—of course.  She is staking out a position, as she has on Iraq, that is well to the right of her party, simply, in my view—and I can see no other explanation—because it‘s politically useful to her right now. 

MADDOW:  What if that‘s what she actually believes?  What if she thinks, you know, we ought to not make it a crime, to make it a felony to assist immigrants, and we ought to have some sort of increased border protection?  That doesn‘t seem like an inconsistent position to me.

CARLSON:  Not just increased border protection, a wall...

MADDOW:  We should have a wall, sure.

CARLSON:  ... which is symbolically offensive to anybody who thinks that you‘re being too tough...

MADDOW:  But not to her.  But not to her. 

CARLSON:  OK.

MADDOW:  Tucker, it‘s not a crazy position for her to have.  The real question here is:  Why is illegal immigration the issue of the day?  Why is illegal immigration going to be the thing that Republicans run on since November?  Illegal immigration hasn‘t increased in yours and in my lifetime.  Why is it the issue of the day right now?

CARLSON:  That is simply, verifiably untrue.  It has increased...

MADDOW:  That‘s not true.

CARLSON:  It is absolutely true.  And we can—in fact, I know you‘re coming back tomorrow.  Let us take up where we left off.  That is absolutely—but, look, the point is, people are upset about it.  I think it‘s fair to respond to it. 

MADDOW:  It‘s fair to respond to it, but not to denigrate people who take principled positions on it.

CARLSON:  I‘m not sure hers is a principled one, but I know yours is.  Rachel Maddow, thank you, thank you, thank you.  And that was a principled swat, and I appreciate it. 

(LAUGHTER)

Coming up on THE SITUATION tonight, playing computer solitaire—women‘s liberation, we‘re all for it, right?  Well, sort of.  It‘s a trade off, a trade-off that we don‘t often hear discussed in public.  The balance between family and career has never been approached and analyzed as thoughtfully as it has been in a brand-new book called “To Hell With All That: Loving and Loathing Our Inner Housewife.”  It is written by Caitlin Flanagan of “The New Yorker,” who joins us now. 

Caitlin Flanagan, welcome. 

CAITLIN FLANAGAN, AUTHOR, “TO HELL WITH ALL THAT”:  Hi, Tucker. 

CARLSON:  This is a really, a terrific book.  I can state my biases right at the outset. 

FLANAGAN:  Please do.  Don‘t hold back on it.

CARLSON:  But I want to ask you the obvious question:  To hell with all what?  To hell with career, to hell with raising children, to hell with what? 

FLANAGAN:  Well, the original subtitle was, “How Feminism Short-Changed a Generation,” and that was considered too explosive, and so we gave it a funner, you know, subtitle.

But it‘s a book about exactly what you were talking about.  And, Tucker, you made this really great comment that the notion that some things may have been lost with feminism isn‘t something we heard discussed much in public. 

And I would have to say, in the parts of the public world that I live in, which is—you know, I live in Los Angeles.  I‘m here in Manhattan right now.  I live in kind of the media world.  Yes, we don‘t talk about it here, because the media is completely left-wing and completely liberal-dominated. 

But if you go to parts of America that aren‘t liberal and that aren‘t Democrat, people talk about that all the time. 

CARLSON:  They do.  And what‘s interesting to me, in affluent neighborhoods, anyway, women seem to, at least in the ones I live in, work less, mothers work less than they did 15 years ago.  I mean, there does seem to be a trend among women who can afford to stay home to stay home when they have kids. 

FLANAGAN:  Oh, you mean fewer women are staying, fewer women are working? 

CARLSON:  That‘s right. 

FLANAGAN:  Yes, I think that we‘re seeing that in affluent neighborhoods.  And I think that—you know, it‘s a very muddy discussion to even talk about the idea of working moms versus at-home moms.  I think that‘s just a ridiculous kind of elitist place that the discussion has ended up in, for all sorts of reasons. 

I‘m not really that interested if people stay home or work at that level.  I think it‘s all about:  Can you stay, can you work, or do you have to work, or do you have the choice not to work? 

But what I think is more interesting to me is the way that we‘re not allowed to talk about whether or not feminism has been a uniformly good thing and if anything bad has ever happened.  It‘s like the worst thing you can say. 

CARLSON:  Well, which is better, though?  Is it better to work when you have small children or is it better to stay home? 

FLANAGAN:  I always tell women:  Do whatever you want, because you‘re going to be criticized either way. 

CARLSON:  Right.

FLANAGAN:  You know, probably by me.  But...

(LAUGHTER)

CARLSON:  That‘s...

FLANAGAN:  It‘s a decision that nobody knows the right thing for any woman‘s family, except that woman herself.  Nobody knows that woman‘s economic situation, her marital situation, her emotional needs, or intellectual engagement with the work that she did. 

What‘s interesting to me is that we all seem to feel so vulnerable about this issue and that a woman can—you know, my mother was kind of a classic, tough housewife of that era.  And if she picked up a magazine article that questioned the way she was raising her children, I don‘t think she‘d give it a second thought.  You know, she‘d turn the page and probably wouldn‘t even finish it.

But if someone says anything at all that‘s perceived to question, and in particular working mothers, and particularly two-career, professional-class working mothers, boy, you‘re going to get excoriated, because it‘s touching really close to something very vulnerable and very primal in women.  And I think that‘s interesting. 

CARLSON:  It‘s touching guilt, isn‘t it? 

FLANAGAN:  Oh, I think it‘s a lot more.  I think women are kind of complicated, interesting creatures.  And I think it touches a lot of things.

And one of the things is there is—you know, to the core, when you have a child and you‘re a woman, you really feel in some deep, as I say, primal way that you should be with the child.  And I don‘t think that‘s a crazy and unrealistic thing to feel. 

And poor women express it all the time, women that have to work in Wal-Mart, and that have to work as, you know, licensed practical nurses on the night shift.  They say all the time they‘re really sad that they can‘t be with their children.  They would much rather be there raising them than doing the work that they‘re doing. 

It‘s only women who have, you know, as I do, education, and careers, and are sort of choosing to be not with the child, we‘re the ones that are guilty.  And I think guilt is not the worst—you know, I‘m an old Catholic school girl, but guilt isn‘t the worst emotion ever. 

CARLSON:  I‘m all for guilt and hypocrisy, actually. 

FLANAGAN:  Oh, excellent.  Then we‘re a match made in heaven.

CARLSON:  I noticed you said, in your magazine pieces, anyway, maybe it‘s not such a bad idea for a wife to sleep with her husband frequently.  I don‘t know.  I think we‘re on the same team.  Caitlin Flanagan, welcome.

FLANAGAN:  You know, Tucker, I was trying to have a serious political debate, and you brought it to the bedroom. 

CARLSON:  I‘m sorry.  I went right to dessert.  Caitlin Flanagan, the book, “To Hell with All That: Loving and Loathing our Inner Housewife.”  Just out.  For what it‘s worth, I endorse it strongly.  Great book.  Thank you, Caitlin. 

FLANAGAN:  You bet.  Thanks. 

CARLSON:  Coming up on THE SITUATION, playing computer solitaire at your desk all day may be pathetic—and it is—but should it get you fired?  Wait until you hear what happened to one man caught in the act of, well, playing with himself at work.  THE SITUATION rolls on in a moment.

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  We turn now to a man who spent the weekend as he always does, cataloging his baseball cards and Googling himself repeatedly, he is “The Outsider,” ESPN Radio and HBO Boxing host Max Kellerman, Max!

MAX KELLERMAN, HBO BOXING HOST:  You have great insight into my soul, Tucker.  And I want to know how. 

CARLSON:  We‘re watching you, Max. 

Now, here‘s a question:  Why is a serial killer convicted of brutally murdering 10 people living the pretty good life in prison?  That‘s what prosecutors and the families of the BTK Killers‘ victims want to know.  Good behavior has earned Dennis Rader the privileges of watching television, listening to the radio, reading, and drawing in his cell. 

Prosecutors had sought restrictions on all those things, because they say images of women and children in news accounts of his own murders would give him perverse satisfaction.  So why are in the world are we giving this animal any privileges at all?  Let him stare at the wall for the rest of his life. 

Max, meanwhile, thinks the BTK Killer ought to get a hot stone massage and a mud mask every day, among with aroma therapy. 

Seriously, Max, I know you‘re playing devil‘s advocate here.  I know you agree with me.  But what is the—I don‘t even understand the argument.  I mean, good behavior—this guy is not getting out ever.  So why is he being rewarded for good behavior, exactly?

KELLERMAN:  OK, you‘re against the death penalty, correct? 

CARLSON:  Yes. 

KELLERMAN:  And I‘ve heard you make this argument, because the government, you don‘t believe, should be in the business of killing unless it‘s in self-defense, right?

CARLSON:  That‘s exactly right.  I have a libertarian opposition to the death penalty. 

KELLERMAN:  We are in complete agreement there.  But what underlies that?  What underlies that basic philosophy is that the penal system is not Old Testament.  It‘s not about punishment for punishment‘s sake, an eye for an eye.

It‘s about two things:  one, rehabilitation, if possible; and, two, if someone is incorrigible or their crimes are too great to justify rehabilitation, deterrence.  In other words, punishment that is so bad that others will not imitate that behavior. 

In the case of a sociopath like the BTK Killer, deterrence isn‘t an issue, because people who are that mentally sick, and perverted, and bad don‘t care about the death penalty, don‘t care about various ways to torture someone in prison.  And so then it really becomes an issue of:  We want him tortured, because we want him tortured, because he deserves it.  But, Tucker, what‘s the point? 

CARLSON:  Yes, I‘m for that, because actually I am for punishment for punishment‘s sake.  I would stop short of killing someone, except in self-defense, because I think only God has the right to take a life, except in certain, very specific circumstances, when people can do it legitimately.

But, no, I think punishment for its own sake is a really important part of our penal system.  You punish people because it‘s just; you deserve it. 

KELLERMAN:  It does feel good to do it, and let do that now for to him for one second.  Everyone says there‘s no way to get to this guy, because he‘s such a sick guy.  In fact, when he was grandstanding and the judge foolishly allowed him to speak for a half an hour, he, like all common, impotent sociopaths—and, clearly, he was one, which is why he had to do what he did—can be humiliated, by talking about him, for instance, as a common, impotent sociopath. 

CARLSON:  You‘ve got him!

KELLERMAN:  So since he—if he has a television there, he could possibly see it, I encourage people—and to demonstrate his impotent, Tucker, he‘s a common, impotent sociopath.  And what‘s he going to do about it?  Nothing.  He‘s impotent.  He‘s going to sit in his cell. 

CARLSON:  Good for you, Max. 

Well, if playing computer solitaire at work became a crime, most of the working world would be locked up for good.  The New York City judge, though, has preserved your right to ignore your job and mess around on your computer.

The judge pulled the rug out from under New York City Mayor Michael Bloomberg who fired a state employee earlier this year after he saw him playing solitaire on his computer.  The man promptly challenged Bloomberg‘s decision in court, and the judge sided with the employee, saying that a reprimand is sufficient. 

Max, state employees should not be playing computer games on the public dime.  I know you‘ve always taken personal pride in collecting a paycheck for doing nothing, but truly even you have to admit that if you‘re taking public money, tax dollars, hard-earned from other people, you‘ve got no excuse for playing solitaire. 

KELLERMAN:  I don‘t know, Tucker.  Would you feel the same way if he went to the water cooler? 

CARLSON:  No, because you need water to survive.  You don‘t need solitaire to survive.

KELLERMAN:  No, but you know what?  But you know what?  You don‘t really need water to survive the couple of hours between when you get there, and your lunch break, or your lunch break, and it‘s time to leave. 

But people can—culturally, we‘re used to people getting up.  They need a refresher.  They need to be—just to divert themselves for a second.  And maybe they‘re thirsty, and they get up, and they go to the water cooler, no big deal. 

Well, it‘s about the same thing, in terms of using up resources, using up his time...

CARLSON:  Oh, come on.

KELLERMAN:  ... if you refresh yourself playing solitaire for a few minutes...

CARLSON:  You sound like a union shop steward, Max.  That‘s going to be your next gig.

Look, the fact is this guy is stealing from the taxpayers.  He was fired as an example to all the other state employees, right?  I mean, it‘s the same reason they throw the first person being interrogated out of the helicopter, to encourage the rest.  This is the penalty.

KELLERMAN:  If you can demonstrate that he was, you know, incessantly playing solitaire or he was doing that instead of doing work, you know, he may have been waiting for some order to be delivered, anytime.  He has five minutes, and you jump on solitaire instead of staring at the wall. 

I mean, is it the best example to set?  No, but if it was a newspaper, no one would have a problem.  It‘s the Internet; what‘s the difference?

CARLSON:  Yes, well, maybe that‘s right, because the Internet is a time-waster in the way newspapers aren‘t.  Plus, it‘s not edifying.

Anyway, Max, unions want you.  You would be a great negotiator on their behalf. 

KELLERMAN:  Thank you very much.  I have no problems with unions, Tucker.

CARLSON:  Max Kellerman—yes, I know you like them.  Max Kellerman, thanks. 

KELLERMAN:  Thank you.

CARLSON:  Still ahead, tonight, it‘s our old friend, the 76-year-old guy who was arrested for posing as a doctor and going door-to-door giving free breast exams.  Have the media rushed to judgment in this important case?  We‘ll debate that on the “Cutting Room Floor,” next.

(COMMERCIAL BREAK)

CARLSON:  Welcome back.  It is time for the “Cutting Room Floor,” and that means only one thing:  Willie Geist.

WILLIE GEIST, PRODUCER:  Hello, Tucker.

CARLSON:  Willie!

GEIST:  As you know, we‘ve been talking about a story that really gets to the core of who we are as a nation.

(LAUGHTER)

CARLSON:  OK.

GEIST:  It has everything.  It has sex.

CARLSON:  Yes.

GEIST:  It has class.

CARLSON:  Yes.

GEIST:  It has everything.  That story, of course, the 76-year-old guy who went around fondling women‘s breasts, posing as a doctor.

CARLSON:  Ah, yes!

GEIST:  He had his perp walk, and there it is.  We can‘t see that enough.  We‘ve got—we rarely do this—we had to pull an e-mail from one of our viewers who wrote in.  Here‘s what he said, Tucker.

Quote—and, by the way, I should point out his name.  He‘s Rich from Aliso Viejo, California.  He says, quote, “The media has rushed to judgment in the case of the Florida man providing free breast exams is disgusting.  I believe that race is playing a key role, and that if this man was young and African-American, the Reverend Jesse Jackson would be there calling to educate, not incarcerate.  Send this man to Yale, not jail.  This man was offering a service that, in a hospital setting, would cost hundreds of dollars.  I call upon you and Willie and seek justice.”

Rich, from Aliso Viejo, we answer the call tonight.  And I don‘t want to pat ourselves on the back, but we were saying, when the story broke—I think it was last Thursday—we said, you know, this is the thanks you get for joining the fight against cancer.  And I think he‘s—let‘s wait until the facts come out before we rush to judgment. 

CARLSON:  That‘s exactly right.  We spent the first half of the show cautioning our viewers not to make any...

GEIST:  That‘s right.  There‘s been a media feeding frenzy on this, and we simply won‘t be a part of it.  Can I just say one more thing?

CARLSON:  Yes.

GEIST:  If I could just blame the victims on this again, the two women who, as you know, actually submitted to the breast exam?  Did they realize that doctors haven‘t made house calls since 1953?  That‘s just one more.  Come on, ladies.  Anyway...

CARLSON:  I‘m not going to blame the victim. 

GEIST:  Rich, great e-mail.  Thank you. 

CARLSON:  What else do we have, Willie? 

GEIST:  Oh, you want some other stuff?  Sorry, I got really excited about that.

CARLSON:  Oh, boy.  This is your guy.

GEIST:  I‘m sorry. 

CARLSON:  Tom Cruise made his first public appearance since the first of his daughter.  Last week, he showed up in Rome.  Today, in fact, he showed up in Rome to promote his upcoming movie, “Mission: Impossible III.”  After giving out some insincere Hollywood hugs to his co-stars, Cruise spoke about his new role as lead diaper changer. 

(BEGIN VIDEO CLIP)

TOM CRUISE, ACTOR:  You know, I actually—I have to tell you, I love it.  We got a whole system worked out, OK?  She does—it‘s the B and B.  She does the breast-feeding, and I do the burping and changing the diapers. 

(END VIDEO CLIP)

GEIST:  So the B and B plan, did you catch that one?

CARLSON:  Yes, I did.

GEIST:  It‘s actually—and the C and D plan, changing diapers.  But I don‘t want to split hairs.

So, basically, the baby is born on Tuesday.  It took him six days to get sick of being a father.  “Listen, Katie, I‘m going to run out to Rome.  I‘ll be on my cell if anything comes up.” 

Come on, Tom, stay home.  Let somebody else promote the movie

CARLSON:  The hugs are maybe the most sincere part of the whole event, as it turns out.

If the president of the United States is the most powerful man in the world, then what does that make the lead singer of the Rolling Stones?  Mick Jagger won a battle with President Bush over the royal suite at Vienna‘s five-star Imperial Hotel.  Jagger had this $6,000-a-night room booked for a Stones‘ tour stop in June.  When Bush‘s staff called to get the room for the president during that same time, Jagger refused to give it up. 

GEIST:  Wow, George just cannot catch a break these days.  You can‘t even land a hotel room.  You hate to see the president of the United States on Priceline.com. 

CARLSON:  No, you really do.

GEIST:  He‘s going to end up in the Vienna Courtyard by Marriott, I think. 

CARLSON:  It‘s actually not bad. 

(CROSSTALK)

CARLSON:  No, no, it‘s not bad at all.

GEIST:  But not presidential. 

CARLSON:  That‘s right.  The grits are a little soupy, but other than that it‘s excellent.

Willie Geist...

GEIST:  All right, Tucker.

CARLSON:  ... thank you. 

That‘s it for THE SITUATION tonight.  Thank you for watching.  As always, we‘ll see you back tomorrow.  See you then.

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