updated 4/23/2009 11:58:53 AM ET 2009-04-23T15:58:53

Guest: Philip Zelikow, Lou Dubose, Ana Marie Cox, Kent Jones

RACHEL MADDOW, HOST:  And thank you at home for staying with us for the next hour.

In a photo-up with the king of Jordan today in the Oval Office, President Obama made clear that the question of whether or not Bush administration officials might face criminal investigation and prosecution for their actions is not solely his call, and it might yet happen.

(BEGIN VIDEO CLIP)

PRES. BARACK OBAMA, UNITED STATES:  With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general within the parameters of various laws, and I don‘t want to prejudge that.

(END VIDEO CLIP)

MADDOW:  That‘s going to be more of a decision for the attorney general, he says. 

Whatever the president has said about what he prefers about criminal prosecutions of Bush administration officials for torture, it is not really his call to make.  The Justice Department is an independent agency that makes its own calls about how to enforce the law and what actions or suspected actions warrant criminal investigation.  The law, in other words, in America is bigger than the presidency. 

And as Michael Isikoff reported in “Newsweek” and here last night, Attorney General Eric Holder is now considering appointing a special counsel to consider such investigations. 

In addition to the renewed public attention to this issue and the president and senior White House officials having to answer questions at every public appearance about it, and in addition to the Justice Department now considering steps toward prosecution, the decision to release the Office of Legal Counsel memos about torture has had one other major ramification thus far.  And it is this—government officials who knew about the interrogation program but who were sworn to secrecy as long as the program was still officially classified, they are now free to talk about it. 

And because of that, we have new major news to report.  In May 2005, Condoleezza Rice‘s counselor at the State Department, Philip Zelikow, gained access to the memos we have now all seen since they were published last week.  Mr. Zelikow is a lawyer.  He says he believed at the time that the memos were wrong.  He believed that they presented a distorted view of the law, and he put his concerns in writing. 

That fact is really important.  In the big picture here, what was going on in the Bush administration is that they were provided supposedly authoritative legal advice, which said that things like chaining people to the ceiling and waterboarding them and stress positions and sleep deprivation and locking people inside tiny boxes, according to the supposedly authoritative legal analysis, those heretofore secret legal memos we‘ve all now read, they said that those techniques were OK according to U.S. law. 

We are now learning that competing advice was distributed inside the Bush administration that said, no, that analysis was wrong.  According to Philip Zelikow, writing at the Web site of “Foreign Policy” magazine today, quote, “my colleagues were entitled to ignore my views.  They did more than that.  The White House attempted to collect and destroy all copies of my memo.” 

Joining us now is Philip Zelikow, former counselor at the State Department, a trusted adviser and deputy to Secretary of State Condoleezza Rice.  He also served as executive director of the 9/11 Commission and he is now a contributor to “Foreign Policy” magazine.  Mr. Zelikow, thank you so much for taking time to join us tonight. 

ZELIKOW:  Glad to be here. 

MADDOW:  First of all, let me give you the opportunity to correct me if I have mischaracterized anything.  Is what I have said about your involvement in this issue thus far, is this—have I accurately characterized it? 

ZELIKOW:  Yes. 

MADDOW:  OK.  So you first saw these Office of Legal Counsel memos in 2005.  What was your reaction to the legal reasoning in those memos?

ZELIKOW:  Many years earlier when I had been a law student and had been a practicing lawyer, I had worked, actually, on issues of treatment of prisoners and that whole body of constitutional law.  So when I saw the memoranda, I was struck by the fact that, even aside from the policy problems, the legal reasoning seemed deeply unsound to me, and I wasn‘t sure that the president and his advisers understood just how potentially questionable and unreasonable many lawyers and judges would find this reasoning.  And so, I thought it was important to just say, hey, there is another view here of this law, and a lot of people would regard the views in these memos as, to say the least, outliers. 

MADDOW:  So when you say that judges might see it, you suggest judges are one of the audiences that might not be persuaded by the reasoning in these memos, were you thinking ahead to the purpose for which these memos were drafted, which is essentially—I mean, it‘s hard for those of us outside of government sometimes to understand what an OLC—what the purpose of an OLC memo is, but essentially to provide a defense in case people were accused of acting illegally in ways that were described in those memos?  Is that what you were thinking of?

ZELIKOW:  Yes.  Rachel, perhaps just a little bit of background, to put this in context for your viewers.  America has fought a number of wars in our history, including against unconventional enemies.  This was an interrogation program, however, for which there is no precedent in the history of the United States.  We‘ve never done a program like this before.  So where the administration is moving into uncharted waters, they are clearly doing things that folks know are legally questionable.  That is why these opinions were requested, because there were questions about whether this sort of conduct was lawful, since it was unprecedented. 

So here the Justice Department is coming down and saying, look, this is a murky area of the law, but here‘s what we think you‘re allowed to do.  Now, whether it is a good idea to do it is another question.  Whether it is moral is another question.  The question before them was, is it lawful to do this?  And the Justice Department has the job of giving authoritative guidance for the executive branch on how the U.S. law should be interpreted in the conduct of our actions. 

MADDOW:  And the memo that you wrote, the document that you wrote that you‘ve described today at the Web site of “Foreign Policy” magazine essentially said that they got it wrong when they described what you are allowed to do under U.S. law, that their reasoning was flawed.  It didn‘t take account of the relevant case law, for example, that they should have called on to prove their point.  Is that accurate? 

ZELIKOW:  Yes.  That‘s accurate.  Now, look, I‘m just one point of view.  I looked at their point of view, and it didn‘t strike me as a mainstream or reasonable way of construing the relevant standards of treatment, of the definition of terms like cruel, inhuman or degrading.  They were using an interpretation of how to comply with that standard that I didn‘t think any judges or lawyers outside of the administration would find plausible, and I wasn‘t sure other folks realized just how implausible it was. 

So—now, of course, I‘m just offering my opinion.  Now, I was there as part of a team representing the State Department, acting as an agent of Secretary Rice, who had grave concerns about all of this.  But others in the administration were perfectly entitled to say, no, we looked at the law, and we have the Justice Department.  They know a lot more about this than you do.  But look, they were entitled to hear an alternative point of view and figure out whether or not they wanted to re-evaluate their opinion. 

MADDOW:  Rather than just disagreeing with you or saying that they thought that you were wrong and the Office of Legal Counsel memos that you were rebutting were correct, why do you think they tried to destroy every copy of the memo that they knew existed?  And how did you find out that they did try to destroy copies of the memo? 

ZELIKOW:  Well, I found out because I was told.  I mean, we‘re trying

to collect these and destroy them, and you have a copy, don‘t you?  But I -

the—I know copies that were retained in my building, and as I mentioned, Secretary Rice understood what I was doing on her behalf.  I was her agent in these matters.  And the—so I think copies still exist. 

Why would they destroy them?  That‘s a question they‘ll have to answer.  Obviously, if you want to eliminate records because you don‘t want people to be able to find them. 

MADDOW:  Am I right in thinking that they would want to erase any evidence of the existence of a dissenting view within the administration because it would undercut the legal authority of the advice in those memos, the advice that those techniques would be legal? 

ZELIKOW:  That is what I thought at the time.  I had the same reaction you did.  But I don‘t know why they wanted to do it. 

MADDOW:  And speaking about accountability for official actions here, it seems to me that the authors of the OLC memos may find themselves in some trouble, either professionally or I guess potentially criminally, if they wrote opinions to order, if they came up with legal reasoning to support a preordained conclusion.  It also seems the government officials could find themselves in trouble if they knowingly used these memos as a tool to get a policy implemented, to do things that they knew to be illegal. 

Could the existence of your dissenting memo be evidence that government officials did know that these things that they were authorizing really were at least possibly illegal? 

ZELIKOW:  All it shows is that they were presented with an argument that says your interpretation of the law appears to this one fellow to be unsound.  Now, of course, lawyers disagree all the time about how to interpret the law, and it‘s now up to our institutions and the Justice Department to sort out whether or not their rejection of these views was just another disagreement among people interpreting tough law, or was something more than that.  The Justice Department is already looking into how these lawyers did their job.  I‘m happy to wait and read their report and find out what they‘ve learned. 

MADDOW:  I have to ask, given your description of how you felt about these memos and the actions that you took, some of the other reporting that other people have said about you, in terms of your role in the administration at this time, I have to ask if you ever contemplated resigning over this issue if you felt quite strongly about it?

ZELIKOW:  No.  You have to understand, this is a battle that had been going on for months beforehand and went on for months afterwards.  This is chapter nine of 32 chapters. 

And, actually, by the end of 2005 and on into 2006, we were achieving major changes.  And we were achieving major changes in what the standards would be that would govern what we were doing, major changes in what the CIA was actually doing in the sites, and important changes in the way we were beginning to talk to our allies about these problems, and move towards bringing these people out of the black sites and into the light, where they would see lawyers, the Red Cross, all of that.  That‘s a decision that we achieved in 2006, that was made by President Bush in 2006. 

So we were in the process of working this from the inside while people like Senator McCain were doing really important work on this issue on Capitol Hill.  Supreme Court delivered a very important opinion on this, Hamdan versus Rumsfeld, during 2006.  So we were a part of a combination of forces that was trying to move our government in a different direction, to turn the page and get this moving in a healthier direction.  And I think we began turning that corner in 2006. 

MADDOW:  I feel like I‘m starting to understand your reasoning and the

way that you approached this, just from talking to you now, from what I

know about your actions.  But there is still one thing that still doesn‘t -

just doesn‘t resonate for me.  And that is in 2005, when you found out that this memo that you wrote, which said this Office of Legal Counsel attempt to say that things like hanging people from ceilings and sleep deprivation and these other things is illegal, it‘s wrongly reasoned, there‘s them saying this is legal under U.S. law is an inappropriate legal understanding.  It is an inappropriate understanding of U.S. law. 

When you found out that they were collecting your memo with that criticism in it and destroying it so there would be no evidence of it, at a time when you knew that they were going to carry out those techniques, which you must have believed were not legal, since you had seen the legal rationalization for it, it is hard for me to believe that you would not think about resigning or blowing the whistle or saying publicly what was going on at that time? 

ZELIKOW:  It was my job to fight this with every ounce of energy at my disposal, using the legal means in front of me.  Frankly, that‘s the same way they should have approached their job, is work within the institutions you‘ve got, the institutions our country gives you. 

They weren‘t committing an act of obstruction of justice by trying to

destroy copies of the memos, and they did not succeed in destroying copies

all the copies of these memos.  Just because they disagree with an alternative view doesn‘t mean that my view was right, but it was important to register the fact that, hey, folks need to understand, if they didn‘t already, a lot of lawyers might believe that this is a radical, indefensible, unreasonable interpretation of the relevant law. 

They heard that argument.  They chose to move on.  We continued the fight to change the policy.  And ultimately did change the policy, with help from Congress and the courts. 

MADDOW:  One last question for you.  If members of the National Security Council principles committee or deputies committee did say thumbs up to specific techniques like waterboarding or like hanging people from the ceiling that were mentioned in those Office of Legal Counsel memos, and they said thumbs up to that on the basis of there being legal authorization in those memos, do you think those officials committed a crime when they OK‘ed it? 

ZELIKOW:  I‘m going to obey the same advice I would give to President Obama, which is when people argue that crimes have been committed, our country has institutions to sort this out.  One of those institutions is the Department of Justice and the attorney general. 

President Obama ran on the platform that we are going to depoliticize the Department of Justice.  Well, let‘s do that.  Let‘s refer all those questions to the Department of Justice.  If you have a question about whether these people will be prosecuted, the Department of Justice is looking into the matter.  The attorney general is looking into the matter.  They will sort this out the way they sort out other allegations of crime.  And let‘s just see where it goes.  And that‘s my approach, too, is I‘m not going to rush to judgment, I‘m not going to prejudge or politicize the issue.  It‘s important folks understand there is another point of view and was another point of view on some of these matters.  Now let our institutions do their job. 

MADDOW:  Philip Zelikow, former State Department counselor, deputy for Secretary of State Condoleezza Rice, thank you so much for coming on the show.  It‘s invaluable to have your perspective and to hear how things went from your point of view in the administration.  Thank you, sir. 

ZELIKOW:  Thank you. 

MADDOW:  The former Vice President Dick Cheney has dropped his former reticence about talking to the media and has now officially ubiquitous—appearing on just about every cable news show except this one.  Come on, Mr. Cheney, come on, come on.  It would be fun.

His latest message to his public is that he would like more secret interrogation memos to be released, please.  It‘s like we don‘t even know this guy anymore.  We‘ll have more on that in a moment.

(COMMERCIAL BREAK)

MADDOW:  For eight years, the single easiest job in all of Washington, D.C. was being press secretary to Vice President Dick Cheney.  Do you remember how the weatherman character that Steve Martin played in “L.A.  Story” would just pre-record all his weather forecasts for days in advance?  It was tempting to believe during the Bush administration that each of Dick Cheney‘s communications directors just set an “auto reply” on the old e-mail that just said “no comment” and went to the beach all day.

Now that Mr. Cheney is not longer vice president, we are seeing a lot more of him, telling John King on CNN that President Obama was making America less safe, telling Politico.com that President Obama was turning the other cheek against terrorism.

Now, he has sat down with Sean Hannity at the FOX News Channel to unveil his new campaign for open government and less secrecy.

(BEGIN VIDEO CLIP, FOX NEWS/MONDAY)

DICK CHENEY, FMR. U.S. VICE PRESIDENT:  And I‘ve now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned, and how good the intelligence was, as well as to see this debate over the legal opinions.

(END VIDEO CLIP)

MADDOW:  There is something so surprising as to be unsettling to hear Vice President Dick Cheney talk about laying things open so the American people can see them.  This is the man who argued that he was part of neither the executive branch nor the legislative branch so he didn‘t have to follow the rules of either about disclosing anything to the public.  This is the man who fought to destroy the logs of the people who visited his official residence.  This is the man whose house was a big, fuzzy, obscure blob on Google Earth until Dick Cheney moved out of that house and Joe Biden moved in whereupon everything came in to much tighter focus.

But now, Dick Cheney is a convert to openness in government, if only so the American people can see how effective those enhanced interrogations were at prying intelligence out of prisoners.  He wants to show the American people how effective it is, how efficient even to waterboard someone who is being interrogated—and just presumably why the CIA did it to one guy 183 times in one month.  It didn‘t work the first 182 times, but time 183 worked like a jiffy.

What‘s behind Dick Cheney‘s sudden interest in talking to the media, his new interest in open government, his desire for the American people to see the results of enhanced interrogation technique—I mean torturing prisoners?

Joining us now is Lou Dubose, editor of “The Washington Spectator” and co-author of “Vice: Dick Cheney and the Hijacking of the American Presidency.”

Mr. Dubose, thank you for coming on the show tonight.

LOU DUBOSE, WASHINGTON SPECTATOR:  Glad to be with you, Rachel.

MADDOW:  Lou, I remember talking to you over beers in Hell‘s Kitchen about a year ago about how after all your books and all your reporting about Dick Cheney and George Bush, no one was going to be interested in them by 2009.  Aren‘t you glad you were totally wrong?

DUBOSE:  Well, other than having Hugo Chavez hand one to the vice president, this is helpful.

(LAUGHTER)

DUBOSE:  Yes, I am—I guess—I hope it‘s wrong.

MADDOW:  Yes.  Go ahead, Lou.  Sorry.

DUBOSE:  Well, it‘s—I mean, the answer to the question that you are about to ask me is: it is a puzzlement.

(LAUGHTER)

MADDOW:  I think of Dick Cheney as “Mr. Secrecy” which is why it is surprising to hear him call for disclosing interrogation memos that are secret now.  But is it true—as somebody who has reported a lot on Dick Cheney—is it true that secrecy has always been his M.O.?

DUBOSE:  Always.  You know, if you back to 1974 when he was Gerald Ford‘s chief of staff or deputy chief of staff, I‘m not sure exactly when this unfolded, Seymour Hirsch wrote—had an exclusive in “The New York Times” about submarine intelligence and the U.S. monitoring the Soviet Navy, U.S. submarines monitoring Soviet submarines.  Cheney argued at that time, you know, Chief of Staff Cheney argued at that time that they should break into Seymour Hirsch‘s apartment and to see what he had.  And he said, “My only concern is that if it will get us on First Amendment issues.”

I mean, this is the beginning of his career.  And he‘s always been absolutely dedicated to secrecy.  This is you—know, I‘m whomper-jawed at this.  This is an amazing turn around for a man whose life has been dedicated to secrecy.

MADDOW:  Is there a sense in which the vice president—former vice president might be panicking here that if there is continued disclosure of Bush era documents, if former officials keep speaking out, if there are criminal investigations, that he might find himself really exposed?

DUBOSE:  Well, not just him.  I mean, I think he‘s relatively safe from prosecution.  I don‘t think any of us envision anyone prosecuting a former president or vice president.  David Addington was his legal counsel.  David Addington was his chief of staff after Scooter Libby was indicted and convicted.  David Addington is also—I mean, he‘s one of the six—one of the Bush administration‘s six who might still be indicted in Spain by Judge Baltasar Garzon.  That‘s still not over.

This could be some chest-pounding to protect David Addington.  And, you know, David Addington was clearly very involved in the—in the deliberations about what we now know—what we now call the torture memos.  He was a central party to that.

And, you know, having lost with Scooter Libby and having—and being very upset about it, angry enough to take issue with President Bush about Scooter Libby—you know, he‘s now looking at the prospect of his chief legal counsel who was with him since Iran Contra when David Addington was on the House Intelligence Committee, he‘s now looking at the possibility of losing David Addington, too.

MADDOW:  And so, the idea is that he is turning to essentially what power he has left, which is, oddly, the power to talk to the press and that‘s what he‘s deciding to use in order to try to protect people around him.  Has he ever been good at using the press?  He seems a little awkward in the medium, I have to admit.

DUBOSE:  I have never known Dick Cheney to be—to be enthusiastic about the press.  I mean, if we roll the clock and the calendar back to 2001, when we were trying to figure out who was—who was—who the members of the Dick Cheney‘s energy task force were, who were doing nothing more than sort of—they were lobbyists, walk into the executive office and the OVP, vice president‘s office, and talking about, you know, shaping national energy policy.

When Congressman Henry Waxman asked him who those people were, he declared it a state secret, went to court, and was sued for the first time in 85 years by the comptroller general of the United States, David Walker, and lost.  But reporters—as reporters, we staked out—we staked out the executive office and tried to figure out who he was talking to.

MADDOW:  Lou Dubose, editor of the “Washington Spectator,” author of the book “Vice: Dick Cheney and the Hijacking of the American Presidency” - - Lou, it‘s always nice to see you.  Thanks for your time tonight.

DUBOSE:  My pleasure.  Thank you for letting me speak.

MADDOW:  If you thought that Barack Hussein Obama and his socialist fascist cabal were going to take over the entire Internet, would you pay $11 to stop them?  If so, a Republican group urges you to call before midnight tonight.  It‘s toll free.  Ana Marie Cox will join us to discuss how to make money on the Republican brand name even while the GOP is out of power.  That‘s coming up.

(COMMERCIAL BREAK)

MADDOW:  Still to come, an entrepreneurial Republican fundraising scheme using hundreds of faxes at once.  Yes, faxes the eight-track tapes of inter-office communication.  Plus, a real life political thriller complete with wiretaps, the “New York Times” and Alberto Gonzales.  And you can‘t trust anyone. 

Plus, politicians adapt to an international epidemic of shoe-throwing.  All that is coming up. 

But first, it‘s time for a couple of holy mackerel stories in today‘s news.  First up, Iran got a shout-out in the latest tape from the second in command of al-Qaeda, Dr. Ayman al-Zawahiri.  With the help of As-Sahab, the infamous al-Qaeda AV club which is purportedly run by a heavy-metal fan, home-schooled kid from California who calls himself Azam the American, Dr. Zawa-crazy has produced and posted online a new 40 minute audiotape. 

Since the November election, Zawahiri has repeatedly insisted in tapes in tapes like this that President Barack Obama is really just like George W. Bush and Muslims shouldn‘t be fooled into thinking he‘s any better.  President Obama‘s high approval ratings throughout the Muslim world suggest that al-Qaeda is swimming against the tide on this one. 

What‘s new about this tape is that Zawahiri goes out of his way to insist, to insist, to insist - exclamation point - that the United States really should not start talks with Iran.  He says, quote, “The more you cooperate with Iran, the more hatred you will generate from Muslims.”

Remember, in crazy al-Qaeda land, Iranians don‘t even qualify as Muslims because they are Shia Muslims, not Sunnis which means they are infidels, too.  Also, put me down for being in favor of anything Ayman al-Zawahiri is against. 

And finally President Obama has made his first judicial appointment.  Obama has nominated District Court Judge David Hamilton of Indiana to the Seventh Circuit U.S. Court of Appeals.  Progressives are concerned that Judge Hamilton is a wee bit conservative for a Democratic president‘s first nominee. 

But the common wisdom about Judge Hamilton is that he should sail through senate confirmation.  And then, Oklahoma Senator James Inhofe happened.  Senator Inhofe preemptively announced last night he will be filibustering Judge Hamilton‘s nomination. 

Awkwardly, among the many things Sen. Inhofe is famous for is declaring that judicial filibusters, filibustering a judicial nominee, is a borderline unconstitutional action. 

In 2003, when Democrats were in the minority, and they were blocking a Bush appointee, Sen. Inhofe said, quote, “The Democrats are seeking, in effect, to change the constitutional majority vote requirement.  If successful, their effort will amount to a de facto amendment to the Constitution.  This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution.” 

To be fair to Sen. Inhofe, this may seem like a big hypocritical contradiction.  But back in 2003, Democrats were in the minority.  Now, Republicans are in the minority.  So what was a minority party power grab back then is now more of a minority party Constitution hug.     Well, it all depends on your perspective.    

(COMMERCIAL BREAK)

MADDOW:  THE RACHEL MADDOW SHOW has received very important information for you and your family.  It says right here that Barack Hussein Obama has a plan to take over the entire Internet. 

Luckily, the Republican majority campaign political action committee has sent a red-alert E-mail to Mother Jones‘ D.C. bureau chief David Corn about this very dangerous takeover of the entire Internet.  And David has sent it to us so - whew, we have fair warning. 

Are you ready?  “Do you want Barack Hussein Obama and his cronies to have the power to,” all caps, “shut down the Internet?”  That‘s all caps.  “Exactly what‘s about to happen if Congress passes two new bills.  We have set up a Web site where you can send blast faxes to,” all caps, “every single member of Congress telling them to say,” all caps, “no to this attempt to take over the entire Internet.  For less that (sic) what it would cost you to gather every fax number and send all those faxes yourself you can send,” all caps, “hundreds of faxes,” all caps, “all at once to Capitol Hill for the low, low price of $119.” 

The Republican majority campaign for the low, low price of $119 will fax every member of Congress for you.  Or since it‘s not 1991 anymore, you could go to the Write Congress page of any random political group‘s Web site and send an E-mail to every member of Congress for free. 

$119 does sort of seem like a lot for faxes.  So today, we called and we asked the president of the Republican majority campaign where all those $119 blast fax fees go to.  And he said, well, after the cost of the faxes and these solicitation E-mails and the credit card processing fees are covered, he says the balance of the rest of the $119 goes to the bank account of the Republican majority campaign, which must be nice for them. 

Sounds a little bit like not-Joe the not-plumber recent gambit which charge the people the low, low price of 99 cents to cast a completely meaningless fake vote to abolish the Internal Revenue Service which, again, must have been nice for the people collecting the 99 cents. 

The Republican Party has always strived to be the party of business interests but I‘m pretty sure this wasn‘t what they meant. 

Joining us now is Ana Marie Cox, national correspondent for Air America and contributor to “The Daily Beast.”  Ana Marie, thank you so much for coming on the show tonight. 

ANA MARIE COX, NATIONAL CORRESPONDENT, AIR AMERICA:  Always good to be here. 

MADDOW:  $119 for a blast fax.  Kind of sounds like a scam, but I‘m not necessarily a blast fax authority.  Do you think it is a scam? 

COX:  I am also not a blast fax authority because I‘m not an authority on eight-track tapes either.  I sort of tend to focus on the technology that‘s being used in the century.  However, I do think it costs less to go out and buy a fax machine that it would to supposedly send all these faxes to the 535 members of Congress. 

I don‘t think it is a scam in the sense that it is illegal.  I do think it is not necessarily honest and it‘s definitely not a true reflection if they really wanted to get, you know, individual voters in touch with their representatives.  I think there are more efficient ways to do it. 

I think there‘s a thing involving tubes, or maybe it‘s trucks - I don‘t know - like there‘s some device on my desk that allows me to do it for free. 

MADDOW:  It‘s not a big truck.  It is a system of tubes which has been checked and double-checked by the (UNINTELLIGIBLE).  With “Joe the plumber, spend 99 cents to vote to abolish the IRS,” with this “send us $119 and we‘ll send a lot of faxes,” with some of the reporting during the campaign about political consulting firms that were essentially using, you know, the vast majority of the money they were raising for their own purposes rather than for any of the candidates they were supposedly supporting, it seems like there is a little bit of a mini-trend here about the Republican Party name, image and even their celebrity is being exploited for less-than-noble purposes.  Do you identify the same trend?

COX:  I see what you‘re saying that they‘re related.  I think I would be very careful about calling this the same kind of scam that those supporting organizations that got named in the “Washington Post” over the summer.  This is definitely an interesting money-making opportunity. 

You have to remember that for the past eight years, Republicans - there are a lot of different ways for a Republican to make money in Washington.  Right now, they are like sending in their gold for cash, you know.  They don‘t have a t lot of options. 

And so I think that might be part of what is happening here.  And also, I just want to say like - as an entrepreneurial type myself, I would love to get the list of people that sent in $119 to send faxes, because I imagine they are easy to separate from their money. 

MADDOW:  Yes.  Well, there is another way at which this operates and that this is sort of a form of activism, because it is not just, “Hey, sucker, send us our $119.”

COX:  It is a little like that, though. 

MADDOW:  Hey, suckers.  It‘s a little like that.  It says, “Hey, suckers, send us $119 and be afraid of Barack Hussein Obama trying to take over the entire Internet.”  It is sort of a form of oppo(ph).  It‘s a form of activist message-pushing.  And I wonder about what we can tell from the tone of this blast fax E-mail offer.  I mean, there‘s got to be an extent to which they think the path out of the political wilderness is paved with solicitations braying how Obama is going to take over the Internet. 

COX:  Of course, that was the path that led to the political wilderness.  I mean, I think that is my main point.  They tried a lot of anger and conspiracy theories in order to try and win the White House.  They lost it. 

I don‘t think using the exact same messages is going to help them get any further.  This is effective, perhaps, for as - if you‘re unfamiliar with, you know, igniting the base.  These are people, I think, if you are going to connect on an angry level, you are not going to spread your base.  You are going to be very much targeting the people who already agree with you. 

Anger does not work in American politics.  It works for fundraising, sometimes.  The liberal groups do it, too.  They want to get people scared and angry.  They will not motivate people who do not already agree with you. 

MADDOW:  Ana Marie Cox, national correspondent for Air America, contributor to “The Daily Beast,” it is always a pleasure to have you on the show.  Thanks, Ana Marie.

COX:  Always a pleasure to be here.  Thanks, Rachel.

MADDOW:  What do former Attorney General Alberto Gonzales, current Congresswoman Jane Harman and Speaker of the House Nancy Pelosi, the “New York Times” and the mighty morphing Power Rangers all have in common?  They‘re all caught up in the world‘s currently most incredible true spy story.  It‘s next. 

(COMMERCIAL BREAK)

MADDOW:  Are you ready for today‘s spy story?  An espionage trial that has been on the verge for years now may be about to blow up.  Cue the music.  Two lobbyists charged with conspiring to obtain secret information about America‘s policies in the Middle East, information they shared with reporters and with officials of a foreign government.  The foreign government in question is Israel. 

And with American politicians competing for decades now to see who can win the biggest friend of Israel designation, this case is a political hot potato to say the least.  Condoleezza Rice, Paul Wolfowitz, Douglas Feith, former national security adviser Stephen Hadley are all set to testify for the defense. 

An official of the Defense Intelligence Agency, a man named Lawrence Franklin, already serving more than 12 years, a more-than-12-year sentence, after being convicted of providing the materials to the suspected lobbyist spies. 

Now, this week, a plot-twist worthy of “Parallax View” - did you ever see that?  Warren Beatty - it‘s really good.  In the investigation into Israeli‘s spying, the feds had a court-ordered wiretap of one of the suspects.  The suspect they were wiretapping, according to three sources who spoke with Jeff Stein at “CQ.com” had a conversation, a wiretapped conversation with California Democratic Congresswoman Jane Harman. 

Mr. Stein‘s sources say the transcript of that call reveals Ms.  Harman saying she will try to get the charges reduced for those two lobbyists facing the spying charges if, in exchange, she can get a little help lobbying Nancy Pelosi to make her chair of the Intelligence Committee.  Ouch. 

She allegedly ended the conference by saying, quote, “This conversation doesn‘t exist.”  So right then and there, the FBI reportedly decides that not only is it investigating Israeli spying, they‘ve also got an offshoot investigation now into Jane Harman.  Did Jane Harman break the law? 

Stein reports, quote, “Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a ‘completed crime,‘ a legal term meaning that there was evidence that she had attempted to complete it.  They were prepared to open a case on her.” 

They were prepared to open a case on her.  OK.  So at this point we‘ve gone from any James Bond movie with the spying investigation, to “Parallax View,” spying investigation‘s nearest congresswoman - now, are you ready for the next twist that makes this worthy of like, “Three Days of the Condor?”

OK, next twist.  The Justice Department is ready to open a case on Jane Harman.  They have allegedly got her on a court-ordered legal wiretap offering to try to influence a criminal espionage case in exchange for a political favor. 

In the “New York Times” today, it actually says the favor was that billionaire mighty morphing Power Rangers guy would threaten House Speaker Nancy Pelosi that he would stop ponying up for Democrats unless Jane Harman got the Intelligence Committee job. 

Justice Department, OK, is ready to open a case into Jane Harman.  The head of the CIA is reportedly ready to notify Congress that there is a national security investigation about to blow up involving a member of Congress. 

When this next plot twist happens, Alberto Gonzales surfaces.  Alberto Gonzales, attorney general at the time, shows up and quashes the whole Jane Harman investigation.  Two sources telling Jeff Stein at CQ, that Gonzales put the kaibosh on any criminal investigation of Jane Harman saying that he needed, quote, “He needed Jane.”  He needed Jane.  He and, by extension, the Bush administration needed Jane Harman for political reasons.

She was reportedly the one Democrat the Bush administration felt they could count on to support their warrant-less wiretapping program.  The administration knew the “New York Times” was about to publish the big expose on that program.  And so by virtue of having that political utility to the administration, being one of the eight members of Congress who was briefed on the reporting - on the program and would say she supported it by virtue of having that political utility, Alberto Gonzales made the case against her go away. 

At this point in the story, the moral could be that our system of government depends for its life on the separation of powers.  The Justice Department, all of law enforcement must be separate from and above politics, or we are not a country of laws.  We‘re not even what we think of as the idea of America. 

In concrete terms, that means in today‘s news, that President Obama doesn‘t tell Eric Holder who gets prosecuted for torture and who doesn‘t.  In the bad old days of the Bush administration, the Justice Department was all about politics.  Alberto Gonzales shouldn‘t surface in a story about congressional corruption but there he is as a central figure.  You need a reminder what change ought to mean?  Here it is. 

But meanwhile, this story continues and by this point in our spy movie continuum, we have morphed into totally complicated like “Syriana” territory as to the question of whether or not Congresswoman Jane Harman from California sought an illegal quid pro quo.  Jane Harman says she never called anyone anywhere to try to get leniency for the lobbyists who were charged with spying. 

If it turns out that she is on this wiretap tape saying she will do that, she will ask for leniency but then didn‘t follow through, does that still mean she committed a crime? 

Congresswoman Harman is calling on the attorney general to release un-redacted copies of all transcripts of all conversations in which she was wiretapped, hinting that the material in the CQ story was leaked selectively to hurt her.  She also told Andrea Mitchell today on MSNBC that she considers it an abuse of power that her conversation was wiretapped in the first place. 

I know she‘ a member of Congress but I would venture, I guess, that any of these of the Americans who ended up getting wiretapped by our government in the “spying on Americans” program that she‘s so vocally supported probably feel the same way. 

To the question of whether or not the former Attorney General Alberto Gonzales broke the law by quashing a criminal investigation for political reasons, Alberto Gonzales, so far, isn‘t saying beep, no comment, not even a denial yet. 

As for the alleged spies, the Israeli spying ring, who were the front of all of this drama in the first place, there‘s word today that after at least nine delays of their trial, the charges against them are going to be dropped. 

Justice Department sources saying it‘s totally unrelated to all the other drama swirling around this case.  They would say that, wouldn‘t they?  At least that‘s how it would go in the movie. 

(COMMERCIAL BREAK)

MADDOW:  Mr. Kent Jones, how are you? 

KENT JONES, POP CULTURIST:  I‘m very well, thank you.  

MADDOW:  What have you got? 

JONES:  Well, just last week, you and I talked about Rod Blagojevich jetting off to the jungles of Costa Rica to appear on an NBC reality show called “I‘m a Celebrity, Get Me Out of Here.”  Not anymore.  Today, U.S.  District Judge James Zagel refused to modify the terms of Blago‘s bail so he could leave the country to do the show.  

JONES:  Friends say he was very disappointed by this news and overheard him saying, “You know, something like this could damage my career.” 

MADDOW:  Can we do “I‘m a Celebrity, Let Me Out of Here” just in the basement of our offices here?  . 

JONES:  Oh, plans are in the works.  Plans are in the works.  Next up, ever since an Iraqi journalist heaved a shoe at George W. Bush, last year footwear-slinging had become the de rigueur way to express displeasure at elected officials.  Now, in India, there‘s been a spate of shoe tossing at candidates this campaign season.  So, this politician decided to string up a shoe net.  

Now, this should keep the shoes away.  Volleyballs, however, watch out for spikes.  Whoa, incoming.  

MADDOW:  Or anything smaller.  A racquetball could get through that. 

JONES:  Absolutely.

MADDOW:  I‘m not suggesting anything.  

JONES:  It‘s a wide net. 

MADDOW:  Yes.

JONES:  It‘s a wide net.  Finally, in Webster, Massachusetts, there is a lake called - well, OK, I‘m not going to try it - 45 letters long.  People mostly just call it Lake Webster. 

But after researching a historical spelling combination, local officials agree that some signs were wrong on lake - that.  There was an “O” at letter 20 where a “U” should have been, and an “H” at letter 38 where an “N” should have been.  Oh, dear, faux pas.  They are dying over this. 

MADDOW:  How do you even - oh, that‘s very impressive.  

JONES:  I don‘t know.  There‘s at least 12 O‘s in that word.  So I don‘t know where you start.  

MADDOW:  It wasn‘t even Welsh. 

JONES:  Yes.

MADDOW:  Well done.  Thank you, Kent.  I have a brief cocktail moment for you today ... 

JONES:  OK.  

MADDOW:  ... which is that the Red Sox always pick an honorary bat boy at their games and that usually picks somebody randomly out of the crowd.  This Saturday at Fenway, they have announced in advance that the honorary bat boy is going to be a young man by name of Arthur Giddon - G-I-D-D-O-N. 

JONES:  Arthur Giddon -

MADDOW:  They have chosen Mr. Giddon on the occasion of him being 100.  

JONES:  Big Pappy -  

MADDOW:  He‘s going to be -

JONES:  Fantastic.  

MADDOW:  They‘re going to have a 100-year-old bat boy.  He says he is fighting macular degeneration.  His eyesight is not what it used to be.  But even with this compromised eyesight, he can tell Big Papi David Ortiz, because of his shape.  

JONES:  Yes.  He‘s big.  

MADDOW:  Exactly.  And he can still tell Kevin Youkilis when he‘s up at bat because of the way he jumps up and down like a funny person while he is batting.  

JONES:  That‘s very good.  

MADDOW:  Mr. Giddon was a fan of the Boston Braves in 1922 and 1923 and grew up in Beantown.  

JONES:  Who wasn‘t?

MADDOW:  I know.  I know.

JONES:  Fantastic.  

MADDOW:  Thank you, Kent.  Appreciate it.  Thank you for watching at home tonight.  We will see you again tomorrow night.  Until then, you can E-mail us, rachel@msnbc.com.  Our podcast is at iTunes or at Rachel.MSNBC.com.  You can also hear me coast to coast on Air America Radio.  “COUNTDOWN” with Keith Olbermann starts right now. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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