updated 7/6/2009 10:19:28 AM ET 2009-07-06T14:19:28

Guests: Richard Wolffe, Gerald Posner, Ann Bremner, Michael Isikoff, Sharon Waxman>

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DAVID SHUSTER, GUEST HOST (voice-over):  Which of these stories will you be talking about tomorrow?

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The King of Pop just two days before his sudden death—performance tape released of Michael Jackson rehearsing for his comeback tour.  The reason AEG released this now and what light does it shed on Jackson‘s physical and mental state in his final hours?

And the looming battle for Michael Jackson‘s kids: Exactly one week after they lost their father, today, Debbie Rowe says she is the biological mother and that she wants custody of her children.

Was there a war inside the McCain/Palin campaign?

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GOV. SARAH PALIN ®, ALASKA:  You betcha.

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SHUSTER:  Rumors and anonymous quotes for months.  Today, actual e-mail proof from inside the campaign.  Steve Schmidt called Palin out on her grasps (ph) of her own husband‘s political background.

Political odd couples day two: President Obama Justice Department protects—wait for it—Dick Cheney?  Why the team who ran on transparency is trying to keep Cheney‘s FBI interview and the CIA leak case top secret?

And first, Keith took on Cynthia Davis, the Missouri representative who calls hunger a motivating factor for kids.  Now, Stephen Colbert joins the cause.

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STEPHEN COLBERT, TV TALK SHOW HOST:  Without hunger, how will children ever learn to push a lever with their snouts to get a food pellet?

(LAUGHTER)

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SHUSTER:  All that and more—now on COUNTDOWN.

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COLBERT:  Take her food away.

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SHUSTER:  Good evening, from New York.  I‘m David Shuster, in for Keith Olbermann.

There is new information tonight about the state of Michael Jackson‘s body.  But his physical fitness prior to death took the spotlight today.

Our number five story on the COUNTDOWN: The new video Michael Jackson in rehearsal less than 48 hours before his death in the same arena that will host his funeral next Tuesday.  The new video, which we will play in its entirety was released by AEG, the promoter of a scheduled London tour dates as a response, a rebuttal, to reports that Jackson was not up to performing, and wanted to get out of his concert commitments.  AEG says the rehearsal seen here took place last Tuesday, June the 23rd, at the Staples Center in Los Angeles.

The Jackson family today scheduled a public memorial service for him at the Staples Center next Tuesday morning.  “Newsweek” today quoting an unnamed prominent friend of the family saying that Jackson‘s body—in “Newsweek‘s” words—currently isn‘t in shape for a public viewing.  That his mother Katherine wanted to bury him quickly because of—in “Newsweek‘s” words—her fear that leaving Michael unburied for more than a week would cause his soul to wander.

Jackson, of course, died a week ago today.  And while law enforcement and speculation focus on what role drugs may have played in Jackson‘s death, AEG says the following video of Jackson performing, “They Don‘t Care About Us,” serves as testimony to his health and his commitment to the tour.

(VIDEO CLIP, COURTESY AEG)

SHUSTER:  With us now is Gerald Posner, chief investigative reporter for TheDailyBeast.com, who reported the theory of a Jackson confidant that Jackson overdosed accidentally, trying to precipitate a medical incident that would let him out of at least some concert dates.

Thanks for your time tonight.

GERALD POSNER, THEDAILYBEAST.COM:  Absolutely, David.  Good to be with you.

SHUSTER:  Gerald, does the rehearsal video refute your story?

POSNER:  No.  Not at.  As a matter of fact, this is exactly what—you know, I kept hearing from the six people I talked to on the Jackson payroll—which is he‘s capable of doing exactly what we saw right now, which is pull it together.  He can get onstage, that‘s where he came alive.  Michael knew that as well.

What he wanted was, he felt he was physically fit enough to do 10 shows over a period of time.  What he didn‘t want is what AEG had signed with, which was 50.  That‘s the difference.

What we see in this video is what he‘s capable of doing.  He just didn‘t want to be doing it for 50 and then another six months in Vegas.

SHUSTER:  What other dynamics between AEG and Jackson as relate to this story and to this video?

POSNER:  Well, let me tell you something.  AEG, all of a sudden, is like the Pentagon.  You can‘t get in there unless you have a pass.  I‘ve been calling them.  I‘ve been asking for information, asking to see copies of the contract.  They won‘t even tell if you they have this concert insured, whether they got—went out and got Jackson insured in case he died.

One thing is for sure, what we‘re doing right now in showing this clip, is we are giving them a little advertisement for some of the way that they‘re going to recoup the loss of Michael Jackson.  They‘re going to market this material as a video.  They‘re going to put it out.  It‘s going to be available as iTunes.

And where do you think the memorial is being held on Tuesday?  At the Staples Center which is owned by AEG.  They own all the rights to what happens there.  Where was he performing in London?  At 02 that‘s owned by AEG.

So, they‘re going to get what they can out of this.

SHUSTER:  Why would a 50-year-old victim of cardiac arrest not be in suitable shape for a public viewing?

POSNER:  David, you‘re asking a key question.  No reason why he wouldn‘t be in suitable shape for public viewing.  Look, we all saw Michael Jackson during his sexual trial in 2005.  He‘s 5‘11”; he went down 108 pounds.  The reports now that he‘s somewhere just a few pounds about that.  He was looking pretty bad.

But, you know, we‘ve seen him in full makeup and looking at times very bizarre.  He would have looked absolutely fine.  They just decided they didn‘t want an open coffin because they didn‘t want it on the front of the “National Enquirer.”

SHUSTER:  When you refer to “they,” who are you referring to?

POSNER:  The Jackson family.  And this is very much comes back to his mother.  You know, you said in the lead-in that his mother thought that his soul could be lost if he wasn‘t buried in a week.  That‘s not just something she says.  She‘s a Jehovah‘s Witness.  She can probably (ph) -- she, you know, moved over into becoming a Jehovah‘s Witness and raised the children that way.  She‘s very religious and she does actually believe that.

SHUSTER:  Not to sound a conspiracy theorist here, but the rehearsal video that we‘re looking at that they released.  This particular video was from Tuesday, the 23rd, 48 hours before he died.  Wouldn‘t you want to release the last video of him rehearsing from Wednesday the 24th?  Does that have more commercial value?

POSNER:  You would want to release that if were you the Jackson family and wanted to show that your son was in fact healthy.  But if you‘re AEG, and your bottom line is profit and dollars, you released the video two days before, because the last day‘s video is the one that‘s going to be worth a lot of money.  That‘s going to be held back.  No one is going to see that until they release that in an entire package available for sale.

So, they‘re teasing us with the one-two days before.  The one of the day before, I understand, is just as good, but they‘re waiting on that.  The will be Jackson‘s final video.

SHUSTER:  What, again, though, Gerald, about the AEG claim that the idea that Jackson somehow wanted to get out of a certain number of concerts date is ridiculous and that this video proves that he has the physical stamina to be able to pull off concerts whenever he wants?

POSNER:  There‘s never been any doubt that he had the physical stamina to pull off concerts.  And the answer to that, David, is that after his 2005 sexual trial, when he was as close to clinical depression as Michael‘s ever been, when he was at his lowest, when he went out to see Deepak Chopra in California for a few days and asked him for OxyContin, and Chopra said no to him.

And then he went to the United Emirates for a few months, and he was out there with the sheikhs, even then he was able to do private performances for up to $2 million to $2.5 million to bring in money.  When he was at his very lowest, he could still turn it on when he went onstage.

So, it‘s never a question of whether he could become the king again.  He had that great talent.  The question was always: how much did he want to do?  He didn‘t want to work for the next year and a half like a Celine Dion, or turning himself into a Cirque du Soleil act in Vegas.

SHUSTER:  Gerald Posner, chief investigative reporter for TheDailyBeast.com.  Gerald, thanks so much for joining us.

POSNER:  thanks, David.

SHUSTER:  You‘re welcome.

In a move that should shock no one, the mother of two of Michael Jackson‘s children who gave up her custody rights not once but twice may have changed her mind again.  Debbie Rowe, Jackson‘s ex-wife and mother of the two oldest Jackson children, Prince Michael Jr. and Paris Katherine, told KNBC-TV in Los Angeles that now that she‘s decided to fight for the custody of the two kids—but on a late conference call with reporters, her lawyer says she hasn‘t made up her mind.

Rowe also told the station she will undergo DNA and psychological testing in order to win guardianship of the kids.  Not only that, she says she‘s going to file a restraining order to prevent Jackson‘s father Joe from even seeing the children.

Rowe has already given up her custody rights twice before—first in 1999 when she was divorcing the pop icon.  She received a multimillion dollar pay day six months later, when their divorce was finalized.  Then in 2006, she sued Jackson after a court said she never legally gave up her rights the first time.  The result: an out-of-court settlement and another huge pay day.

During that custody hearing, this exchange between Judge Stephen Lachs and Rowe seemed to illustrate her understanding of the agreement.  Quote, Lachs: “You understand you will not have rights to take care of the children?”  Rowe: “ No.  And I don‘t want to.  They‘re not my kids.  They‘re his kids.”

And with all of this going on and an L.A. judge delayed the children‘s guardianship hearing until July the 13th at the request of both Rowe and Katherine Jackson‘s lawyers.

Joining us now from Seattle, Washington: Ann Bremner.  She‘s a defense attorney and legal analyst who covered Michael Jackson‘s molestation trial.

Ann, thanks for being with us.

ANN BREMNER, DEFENSE ATTORNEY:  My pleasure.

SHUSTER:  That Debbie Rowe was back in the picture can‘t about shock to anyone.  But first, she told the TV station that she wants custody.  Now, her lawyer says she‘s not sure.  From a legal perspective, why the pullback?

BREMNER:  Well, I think she‘s trying to look a little more reasonable.  This is like a Rubik—excuse me, Rubik‘s cube.  I was going to say Rubric, sorry—with everything with this case.

SHUSTER:  OK.

BREMNER:  But anyway, it‘s got me just thinking of all these different things because what she‘s trying to say is that, well, you know, I didn‘t want it, but now, I want them.  Is this like biology for billions?  I mean, just because she‘s the mother doesn‘t mean she‘s got a right to these kids into entering into this equation.

And I think, you look at the poll on TMZ, for example, should she get the kids -- 70 percent of the people said, no.

SHUSTER:  Except that, of course, falls on determining (ph) things law does.  And isn‘t it true that .

BREMNER:  Right.

SHUSTER:  . if Rowe is .

BREMNER:  Oh, yes.

SHUSTER:  . the biological parent, by California law she‘s first in line for custody?

BREMNER:  Well, that‘s true.  But, then you also look at other factors like the most dominant being in the best interests of the child and continuity in their lives.  So, you know, she‘s a little different.  You know, did she go see them?  Did they call her mom?  Did she remember their birth dates?

I mean, you know, it‘s right, a parental right, but there‘s responsibilities, too.  And she hasn‘t acted as a parent so far.  I saw her testify in the trial.  And I saw what she said many times, which was:

“These were a gift to Michael.  They‘re not my children.”

SHUSTER:  Does the will giving Katherine Jackson custody, does that count here?

BREMNER:  It counts.  But what we‘re dealing with in the will is a guardianship but not actual custody.  Of course, custody has so many other factors to be looked at.  But, you know, it‘s a factor to be looked at.

And this is something—when you look at the chaos of Michael‘s life in a lot of ways, there‘s the chaos in this death.  And it‘s really sad with the children, reminiscing of the song we heard as the lead-in, you know, they don‘t care about us—meaning these children.  They need to get together and make a decision that works for the children.

SHUSTER:  Debbie Rowe said that she would undergo DNA and psychological testing.  Will the psych test taking into account her having given up custody twice?

BREMNER:  Absolutely.  They‘re going to take a look as to, you know, why she did that, and how this would impact the kids.  You know, and when she testified in the trial, she said that Michael was surrounded by opportunistic vultures.  She coined that phrase.

And the question is, you know, is he surrounded by people in death that are opportunistic as well?  And the fact of the matter of whether she cares about the kids.  Whether they‘re—she‘s an important, positive influence.  Did she sell them?  Did she give them up?  Those are all things to be looked at with custody.

SHUSTER:  And what can we expect from the upcoming July 13th guardianship hearing, if it does in fact happen?

BREMNER:  We‘re looking at basically some temporary measures.  We‘re looking at where will the kids—will they stay with Katherine?  You know, we know that Joe was in Las Vegas.  So, this issue about whether or not, you know, he would be with the children, you know, something they‘ll look at as well.  But it‘s something that‘s temporary and, in fact, looking at just the continuation with these kids of the best place for them to be.

And don‘t forget, we also have Grace, the nanny, as a potential interest in terms of custody of the kids, because she was truly a constant in their lives, in addition to their dads.

SHUSTER:  And what about the role of the children at this hearing?  Will they essentially have to provide some sort of statement or an attorney try to get views from them as part of this?

BREMNER:  Well, they need to have their own attorneys.  They need to have guardians.

And so, their views can be put forth in court, whether they do it by live testimony or do it via affidavit of someone that represents them and of course they need to be evaluated.  And what a horrible time for them, going through the death of their dad at 50 in the public limelight and then to have this, you know, potential fight going on.  Not just in the short-term, but potentially in the long-term.

SHUSTER:  Defense Attorney Ann Bremner—Ann, thanks so much.  We appreciate it.

BREMNER:  My pleasure.  Thank you.

SHUSTER:  You‘re welcome.

We‘ll have more on the Jackson rehearsal tape ahead on COUNTDOWN.  The perspective from the world of music: what impact would the concerts have had on Jackson‘s legacy?

But first, internal McCain campaign e-mails and the legacy of Sarah Palin‘s political career: the e-mail exchange that shows Palin‘s basic lack of facts about her own husband.

That and much more—ahead on COUNTDOWN.

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SHUSTER:  You‘ve heard the rumors, innuendoes and anonymous quotes for some time.  But now, there‘s actual e-mail proof of the discord between the McCain campaign and its V.P. pick Sarah Palin.  And it‘s not painting a pretty picture about its truthfulness.

Dick Cheney gets help from President Obama in keeping a CIA leak interview with the FBI under wraps.

And Stephen Colbert joins Keith‘s cause in highlighting the craziness of the politicians who thinks hungry kids are motivated kids.

All that and more—and the new Michael Jackson performance video—ahead on COUNTDOWN.

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SHUSTER:  It seems the battle that Sarah Palin picked last month with David Letterman was just the beginning—well, not the beginning, really, what was the most recent result of lots and lots of practice.

Our fourth story on the COUNTDOWN: Before the Alaskan governor was fanning outrage with a late-night talk show host, she was fighting with members of John McCain‘s senior staff and perhaps more metaphysically, there is her war on the truth.

CBS News has gotten its hands on a batch of e-mails that were written three weeks before the election.  They showed just how frustrated Senator McCain‘s staff had become with the Republican nominee‘s choice for running mate, and she with them.

Governor Palin had become upset about a report that raised questions about her husband‘s membership in the Alaska Independence Party, a group whose platform calls for succession from the United States.  Todd Palin had been a member of that party for seven years—which would translate to not a member at all, given Sarah Palin‘s slippery relationship to the truth.

Quoting from e-mail number one from Governor Palin to McCain‘s chief campaign strategist Steve Schmidt, campaign manager Rick Davis and Palin‘s senior adviser, Nicolle Wallace: “Please get in front of that ridiculous issue cropped you all day today—two reporters, a protester‘s sign, and many shout-outs all claiming Todd‘s involvement in an anti-American political party.  It‘s bull, and I don‘t want to have to keep reacting to it.  Please have statement given on this so it‘s put to bed.”

Schmidt‘s reply to all was sent only five minutes later.  Quote, “Ignore it.  He was a member of the AIP?  My understanding is yes.  That is part of their platform.  Do not engage the protestors.  If a reporter asks say it is ridiculous.  Todd loves America.”

That advice was apparently not good enough for Governor Palin.  She not only replied but carbon-copied five more people on a response.

“That‘s not part of their platform and he was only a ‘member‘ because independent Alaskans too often check ‘Alaska Independent‘ box on voter registrations thinking it just means non-partisan.  He caught his error when changing our address and checked the right box.  I still want it mixed.”

Hmm.  Facts that have altered at will and a governor who takes a minor event, overreacts and turns it into something more menacing.  Sounds familiar?

Schmidt‘s next reply would be the final word on the subject.  “Secession,” he wrote, “it is the entire reason for existence.  A cursory examination of the Web site shows that the party exists for the purpose of seceding from the union.  That is the stated goal on the front page of the Web site.

Our records indicate that Todd was a member for seven years.  If this is incorrect then we need to understand the discrepancy.  The statement you are suggesting be released would be inaccurate.  The inaccuracy would bring greater media intention to this matter and be a distraction.

According to your staff, there have been no media inquiries into this and you received no questions about it during your interviews.  If you are asked about it, you should smile and say many Alaskans who love their country join the party because it speaks to a tradition of political independence.  Todd loves his country.

We will not put on a statement and inflame this and create a situation where John has to address this.”

Time now to call in our own political analyst, Richard Wolffe.  He‘s also the author of “Renegade: The Making of a President.”

And, Richard, good evening.

RICHARD WOLFFE, MSNBC POLITICAL ANALYST:  Good evening, David.

SHUSTER:  Richard, Steve Schmidt took Governor Palin to school in that final e-mail.  With the release of these e-mails, can Governor Palin ever claim not to know the truth about AIP and Todd Palin again?

WOLFFE:  Well, first of all, these are extraordinary e-mails.  Just set aside the substance of it for a minute.  You have a glimpse of mindset of a candidate for the vice presidency of the United States just a few weeks away from election day, just a few hours away from a big debate, and, of course, this devastatingly bad relationship with the guy running the campaign.  And, of course it does come back to this old pesky thing called the truth, and the nature of their political background.

And what‘s fascinating here is that either Sarah Palin is trying to dupe her staff or she‘s trying to dupe voters or maybe she‘s being delusional about the nature of the Alaskan Independence Party.

But Steve Schmidt is right to the think that this is a political nightmare.  And that is going to be the case moving forward.  If Palin runs again—as we all frankly expect her to do—she‘s still going to face these questions and she better get her story straight.

SHUSTER:  You mentioned the issue of the truth.  Do these e-mails draw into question Governor Palin‘s slippery relationship with the truth and her tendency to bend facts at will?

WOLFFE:  Well, let‘s just be clear that her supporters don‘t seem to care either way.  I mean, this is a candidate who had a semidetached relationship to the truth, whether it was about, oh, her foreign travels or science or, in this case, her husband‘s political background.

And it doesn‘t seem to bother them because they like her performance so much that they‘re willing to forgive all of these things.  As a candidate at the top of a ticket—which is really what we‘re looking at in a few years from now—or someone who aspires to that position, anyway, she is going to face these questions in a much more pointed way.

So, the dodge that Steve Schmidt sets up here, which is—oh, you know, your husband loves America, really isn‘t actually compatible with the Alaska Independence Party because secession is not the best way to show your love of country.

SHUSTER:  And if she is essentially planning a run for president, there, of course, a lot of strategists who are not going anywhere.  Surely, there must be more e-mails just like these and more people she has attacked who might be willing to leak those e-mails.

WOLFFE:  Yes.  And remember that the poison we‘re seeing here will take a long time to work its way through the body of the GOP here.  This is not just about Sarah Palin and Steve Schmidt.  It is a broader fight that takes in—for want of a better word—the Cheney clan that is personified by Bill Kristol and the Bush side of things, maybe Nicolle Wallace, Steve Schmidt.

And there is a bigger fight that‘s going on here about Sarah Palin that really doesn‘t have much to do with her, but will continue, I suspect, beyond her candidacy or non-candidacy in a few years‘ time.

SHUSTER:  And, Richard, putting the chain of events behind these e-mails, in the context with recent events, what do they say about Governor Palin‘s tendency to overreact, to take minor problems, and turn them into major ones?

WOLFFE:  Well, this comes back to the qualities that Republicans need to think about of their next presidential candidate.  You really need someone—as I explain in my book—you need someone who is focused on the strategy on the bigger picture.  That‘s what Schmidt was rightly trying to get his candidate to do.

If you get distracted easily by reporters, by protesters, the voters are going to say, “Can you handle the distractions of the job,” because believe me, in the White House there are lots of distractions.

SHUSTER:  Richard Wolffe of MSNBC and author of “Renegade,” a terrific book—and, Richard, great to see you.  Thanks for coming on tonight.

WOLFFE:  Thank you, David.

SHUSTER:  You‘re welcome.

Sports and pop culture collide.  Wait until you hear what this is all about.

And first, it was Keith.  Now, Colbert is taking on Cynthia Davis, the woman who says hunger motivates kids.  What you can do to help Ms. Davis get out of the Missouri Statehouse.  That‘s ahead on COUNTDOWN.

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SHUSTER:  If you can‘t get enough of the Twitter like yours truly—

Twitter.com/DavidShuster—and you follow Lindsay Lohan like I do, you know today is LiLo‘s 23rd birthday.  I don‘t know if he tweets, but the great Larry David of “Seinfeld” and “Curb Your Enthusiasm” fame was also born on July 2nd.

And sticking in the sitcom world our birthday greetings go out to Ms.

Polly Holliday who, of course, played Flo in the classic ‘70s show “Alice.”

I would tell you how old Ms. Holliday is, but I don‘t want to have to kiss her grits!  Let‘s play Oddball.

We begin on Danish morning television, where it looks like their version of the “Today” show was getting a look at the smart car.  Only the car which was stashed in the trailer to begin the segment got a little too smart for its own good.

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(PEOPLE SPEAKING FOREIGN LANGUAGE)

(LAUGHTER)

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SHUSTER:  Oh, the wonders of live television.  Like a fuel-efficient Night Ridder, the car backed out of the trailer and rolled all the way into the shrubbery.  Now the guy that went belly flopping after the Smart Car has a smarting back. 

To the Wildlife Wonderland Park in Basse, Australia, where officials have discovered that one of their koalas has given birth to twins.  They claim this is only the fifth time twin koalas have been born in captivities.  The multiple birth was discovered after the mother rejected one of the twins.  Zoo workers attempted to place—cute baby—back with its mom when another koala head poked out of the pouch. 

Since there only room for one baby in there, this little fellow will have to be hand reared.  Early indications are he‘s going to need a few lessons in the whole drinking milk thing. 

To the WhiteHouse.gov website, where we find brand new video of the president voicing over a script for Disney‘s world famous hall of president attraction.  Once recorded, the president‘s audio was flown back to the Magic Kingdom, where it will be synched up with an animatronic Obama.  And soon millions of visitors who didn‘t feel like waiting in line for Space Mountain will listen to robot Obama‘s spiel on hope. 

But now, in an effort to save you the price of a five-day park hopper pass, here‘s the real President Obama reading his entire Hall of Presidents script. 

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OBAMA:  The American dream is as old as our founding, but as timeless as other hopes.  It is reborn every day in the heart of every child who wakes up in a land of limitless possibilities, in a country where we the people—

(END VIDEO CLIP)

SHUSTER:  Yes, you‘re going to have to pay to hear the rest. 

Finally, to action from the Canadian Football League, where we get the latest tribute to Michael Jackson.  During a game on Wednesday, following a touchdown reception, Toronto Argonauts wide receiver Arlen Bruce (ph) paid homage to the late King of Pop by removing his helmet and pads, laying down and playing dead. 

According to the Associated Press, quote, Bruce said he was honoring the memory of Jackson by pretending to be buried.  The team was flagged for the morbid celebration.  And today, just like the departed Jackson, Bruce is mired in debt after being fined by the league. 

These are the rehearsals that were supposed to put Michael Jackson back on the top of the music industry.  This is it.  Will never be.  With this glimpse of the concert, what did the entertainment world miss out on? 

And former Vice President Dick Cheney‘s answers to the FBI in the Valerie Plame leak case might still be kept secret.  The Obama Justice Department sides with the same Bush administration arguments to keep it under wraps. 

That‘s ahead on COUNTDOWN.

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SHUSTER:  The Obama administration last night rode to the defense of Dick Cheney, because the Obama Justice Department said the Obama administration will probably have just as much trouble with the law as the Bush administration did.  Our third story tonight, a Freedom of Information request for the FBI‘s notes from their discussion with then Vice President Dick Cheney about the leak revealing Valerie Plame‘s identity as a covert CIA operative to punish or discredit her husband, Joe Wilson, who had just blown the lid off President Bush‘s lies about Iraq trying to by uranium from Niger. 

The Obama administration last night filed an argument with the court on why it should not release the Cheney notes.  Why not?  Because if the Cheney interview notes are released, future White House officials might not be forthcoming if they are interviewed, for fear their notes too will get out. 

Quote, “there‘s a reasonable probability of future law enforcement investigations by the DOJ that will require and benefit from obtaining information from White House officials, possibly at the highest level.  If law enforcement interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a Grand Jury subpoena.” 

Despite the Obama administration‘s growing pattern of secrecy, the filing does appear to offer something new.  Namely, official confirmation or further confirmation that Mr. Bush and Mr. Cheney did, in fact, discuss the Plame leak.  When is not clear.  The DOJ filing says presidential privilege covers Mr. Cheney‘s interview about a conversation he had with the president, and, quote, an apparent communication between them.

Let‘s bring in MSNBC contributor Michael Isikoff, investigative reporter of “Newsweek Magazine,” sat near me in the CIA leak case.  Mike, thanks for joining us. 

MICHAEL ISIKOFF, “NEWSWEEK”:  Hi, David.

SHUSTER:  I want to get back to that Bush/Cheney communication in a second.  But you‘ve reported on Mr. Obama‘s secrecy levels.  Are we talking both about a pattern of keeping things secret, but also of a similarity in the rationale for keeping things secret? 

ISIKOFF:  Yes, a lot of people who are following this are seeing a troubling pattern here.  President Obama began on his first full day in office with a executive order for transparency, declaring open government was going to be the hallmark of his presidency.  And specifically in Freedom of Information Act requests, Attorney General Eric Holder said the presumption should always be to disclose rather than to withhold, unless there‘s some identifiable, foreseeable harm to the government from disclosure. 

Yet, time and again, people who have filed Freedom of Information Act request, public interest group, the ACLU and others, see the Obama administration retreating to using the same arguments for secrecy that were used in the Bush administration. 

We saw that with the decision to withhold the photos of detainee abuse, in which the president ordered them kept closed.  The use of the State Secret Act to shut down lawsuits alleging abuse.  The White House visitors logs, which the White House has withheld on Freedom of Information requests, and now even on something historical in nature, former Vice President Cheney‘s interview with the FBI years ago in a closed criminal investigation.  The Obama Justice Department making an argument that these need to be kept secret. 

SHUSTER:  Michael, as far as the Bush/Cheney conversations in the midst of the CIA leak case, if memory serves me correctly from the trial, evidence came out that there was some sort of discussion that was referred to between the president and Dick Cheney about declassifying part of a National Intelligence Estimate that would then be leaked out as a way of undercutting Joe Wilson.  Is that the conversation, the crucial Bush/Cheney conversation that was essentially reinforced by this document filing? 

ISIKOFF:  That‘s the one we know about, because that did come out in trial, that in late June of 2003, just as the whole controversy was erupting about those famous 16 words, where President Bush had claimed in a State of the Union that Iraq was seeking yellow cake uranium from Africa, and then it was undercut by Joe Wilson.

Vice President Cheney and President Bush had a discussion about how to rebut that criticism.  And one of the things they decided in that discussion was to selectively declassify, and then leak aspects of the National Intelligence Estimate on Iraqi WMDs, that they thought would support their case. 

Of course, that led to Scooter Libby talking about that NIE with Judy Miller of the “New York Times.”  That was a fateful conversation in which later testimony showed he did disclose a very critical fact, that Joe Wilson‘s wife, Valerie Plame, worked at the CIA. 

SHUSTER:  The key question—well, at least in my view, from my memories of Scooter Libby‘s Grand Jury testimony that got played at the trial—was that he remembered specific conversation, having specific conversations with Dick Cheney about courses of action that Scooter Libby should take.  But Scooter Libby said he could not remember what exactly was said in those conversations, or anything generally. 

Is that the thrust of the matter here?  We know that Scooter Libby took actions to try to obstruct the investigation.  He was convicted for it.  We‘ve never got Dick Cheney‘s view of what Dick Cheney said to Scooter Libby in the midst of all that. 

ISIKOFF:  Exactly.  That‘s why people wanted to see what Dick Cheney said to the FBI in this interview, as part of the investigation.  We know what Scooter Libby said.  And he was ultimately convicted of lying in what he said before the Grand Jury, and to the FBI, about his—about his knowledge of Valerie Plame Wilson, and where he learned it. 

We also know that notes show that it was Vice President Cheney who first told him about it.  So you recall the closing arguments of Patrick Fitzgerald at the trial.  He said there‘s a cloud over the Vice President‘s Office.  This was always about Dick Cheney and suspicions of many that Scooter Libby, who got convicted in this case, was protecting Vice President Cheney. 

SHUSTER:  Mike, on another note, the CIA tonight requested its third extension of the deadline for releasing its internal report on detainee torture.  This time, not an extension of a week or two, but two months.  How should we interpret this? 

ISIKOFF:  Another setback for public disclosure, once again.  Now, again, it is a delay.  So we‘ll see in two months whether we get this very important CIA Inspector General‘s Report, which is a critical document in the whole question of detainee abuse and torture and water boarding.  This was the only government internal review of the matter.  It is believed to have been harshly critical of the CIA, and how it was conducting these interrogations.

But the public has never been able to see it.  I think the practical affect of this, of delaying it, it to sort of further blunt the calls for a truth commission and accountability on these—on this subject.  The longer it can be dragged out, the longer the public doesn‘t get to see the critical documents that the government has about this, the harder it is to make the case—the harder it is to build the political pressure for some form of accountability. 

So those, including those in the White House and President Obama, who have sought to deflect charges, are probably pleased by this delay. 

SHUSTER:  Michael Isikoff of “Newsweek” and MSNBC—hey, Mike, we‘re going get those Cheney FBI notes in the CIA leak case some day.  Keep the faith, Mike. 

ISIKOFF:  And we‘ll talk about them. 

SHUSTER:  Sounds good. 

Still to come, more on the video of Michael Jackson just days before his death, inside the Staples Center preparing for his comeback tour.  Was “This Is It” going to be a king maker for the King of Pop? 

And Stephen Colbert gives his voice to the stupidity of Missouri Representative Cynthia Davis, a frequent Staple in worst persons.  But Colbert does a 180 on Keith‘s take.  Details ahead on COUNTDOWN. 

(COMMERCIAL BREAK)

SHUSTER:  As Keith Olbermann has detailed in several worst person in the world segments over the past week or so, Missouri has a state representative Cynthia Davis who is against funding a program that would provide meals for hungry children.  According to Davis, the kids in her state should remain unfed because, quote, hunger can be a positive motivator.

In our number two story tonight, that ridiculous comment earned the Missouri state rep appropriate jeers on this program.  In contrast, last night on “The Colbert Report,” Ms. Davis received a tip of the hat. 

(BEGIN VIDEO CLIP)

STEPHEN COLBERT, “THE COLBERT REPORT”:  First, a tip of my hat to Missouri State Representative Cynthia Davis, who opposed subsidizing lunches for low-income children during summer break because hunger can be a positive motivator. 

Exactly.  Without hunger, how will children ever learn to push a lever with their snouts to get a food pellet?  And as an owner of the Back to Basics Christian Bookstore, Representative Davis knows these kids don‘t need a handout.  They need a pep talk. 

It‘s like Jesus said in Matthew, I was a stranger and you welcomed me.  I was naked and you clothed me.  I was sick and you visited me.  I was hungry and you said, get a job. 

So, Representative Davis is truly looking out for Missouri‘s children.  But who‘s looking out for Representative Davis?  Could it be that she‘s never risen above the state legislature because she developed the anti-motivating habit of eating? 

We must help her, folks.  People of Missouri, if you see Representative Davis at a restaurant or at a hot dog stand or even through the window of her own dining room, do the right thing, and take her food away. 

(END VIDEO CLIP)

SHUSTER:  And at the top of the COUNTDOWN, the dramatic video of Michael Jackson two days before his death, singing, dancing, rehearsing for the concert that was supposed to put him back on the top of the music industry.  Would it have had he lived to make it to opening night?

(COMMERCIAL BREAK)

SHUSTER:  The signature voice, the trademark style, the video that shows a consummate performer in his element.  Our number one story, another look at one of Michael Jackson‘s final performances.  Concert promoter AEG today released video of Jackson rehearsing at the Staples Center in Los Angeles just two days before he died. 

The venue will instead host Jackson‘s memorial service on Tuesday.  Jackson was rehearsing for his upcoming This Is It tour.  The tour‘s director tells NBC News that Jackson was hoping the tour would become the greatest triumph in the history of rock ‘n‘ roll. 

Here‘s Michael Jackson performing “They Don‘t Care About Us.”

(SINGING)

SHUSTER:  Joining us now is Sharon Waxman, editor in chief of TheWrap.com.  And Sharon, good evening. 

SHARON WAXMAN, THEWRAP.COM:  Good evening to you. 

SHUSTER:  This rehearsal video was from last Tuesday.  Your website confirmed with AEG that there is also a video of Wednesday night‘s rehearsal, the night before Jackson died.  Will that be the real cash cow?  This is just a prelude to the main event? 

WAXMAN:  Oh, I think we have so many cash cows coming out of this at this point that it‘s hard to know which will be the biggest one.  Make no mistake that this video is a very now carefully planted marketing ploy to kind of wet the public‘s appetite for what AEG has in the can. 

As we reported last Sunday, they do have their multi-camera high def video and multi-track audio of that last show, which could be an album.  Now, today, we‘re hearing, well, maybe they‘ll put out a movie.  Well, clearly, there will be a DVD and a Blu-Ray and an album.  Will people show up in movie theaters to watch Michael Jackson or some compendium of footage of Michael Jackson‘s last days and hours, culminating in the final concert just a half a day before he passed away suddenly? 

I think a lot of people would do that.  At this point, they are probably thinking about how—how can they count the ways that they can make money off of this—basically the tragedy of his death. 

Remember that AEG—everybody has been writing that AEG Live was taking a bath on this, that they had these 50 dates with Michael Jackson.  They were going to lose 150 million dollars.  They‘re going to make a lot of money out of this. 

SHUSTER:  Jackson was the ultimate performer.  Does this performance show Jackson reaching into that ability, despite what troubles he was having?  Or do you detect anything in this video that suggests that maybe he was having some problems? 

WAXMAN:  Well, that‘s up to every person to judge.  I don‘t know what you think.  I think he looks like he‘s a professional performer, which is really what he is.  That‘s always what Michael Jackson loved best, was being on-stage.  In some sense, that was where he really felt comfortable, where he had been since a very young child, where always seemed to shine. 

He didn‘t really seem to do so well in the real world. 

SHUSTER:  Billboard is reporting Jackson was working on two new albums.  One in the pop genre that made him a superstar, and the other an instrumental album of classical music.  Is this evidence that Jackson was priming for a comeback, or at least some type of reinvention? 

WAXMAN:  Yes.  I‘m not confirmed that report from Billboard.  I have no reason to doubt it.  But what it does confirm is that he needed to make some money.  So he was in the business to start getting back into business.  And what he knows how to do is make music and perform.  So if that‘s the case, I think that‘s evidence that probably he wanted to try to break—you know, make himself relevant again.  He‘d been off the stage.  He‘s not been relevant for a number of years. 

In fact, he‘d been quite the opposite.  He‘s had very negative public perception and bad headlines for many years. 

SHUSTER:  Does this particular video from today give us any hints on what the music world missed out on? 

WAXMAN:  Yes, I think it does.  It was going to be a spectacular show, by all accounts.  It was really pull out all the stops, 3-D glass, Michael being dangled by a crane in front of the audience, children, dancers, aerial performers, this huge set that‘s filled—I believe it can fill a couple of trucks and a couple of airplanes. 

I don‘t know what they‘ll do with the set from the show.  Maybe they‘re going to actually have a tribute concert.  That‘s what the rumors are that keep going around.  It was meant to be, from all accounts that I‘ve heard, a really, really spectacular show. 

SHUSTER:  Sharon Waxman of TheWrap.com.  Sharon, thanks, as always, for your time.  We appreciate it. 

WAXMAN:  Thank you. 

SHUSTER:  You‘re welcome. 

That will do it for this Thursday edition of COUNTDOWN.  Up next, Chris Jansing with an MSNBC special on the death of Michael Jackson.  I‘m David Shuster in for Keith Olbermann.  Have a great holiday weekend, everybody.

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

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