updated 7/17/2009 10:41:47 AM ET 2009-07-17T14:41:47

Countdown

July 16, 2009

THIS IS A RUSH TRANSCRIPT.

THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

Guests: Howard Fineman, Jonathan Alter, Lawrence O'Donnell, Scott Horton

(BEGIN VIDEOTAPE)

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

Put your money where your political mouth is. Arizona leaders complain about the stimulus. So, Obama's team asks if Arizona would like the funds to stop coming to the state. But for senators Kyl and McCain, they want their political complaints and the cash, too.

The return of the "double talk express" with Howard Fineman; and the Obama administration's no more "Mr. Nice Guy" stance with Jonathan Alter.

Irony hits the Sotomayor hearings: After a week of offering the nominee no slack in her "wise Latina" remarks, today, Senator Sessions let fly a doozy.

(BEGIN VIDEO CLIP)

SEN. JEFF SESSIONS ®, ALABAMA: We're going to do that crack cocaine thing that you and I have talked about before.

(END VIDEO CLIP)

SHUSTER: Context is important to you now, Senator? Maybe even feeling a little empathy for Sotomayor?

"Why follow the law if you can just ignore the law?" so says former Bush administration justice official, John Yoo-defending his part of the spying of millions because he considered the Foreign Intelligence Surveillance Act, quote, "obsolete. "

(MUSIC)

SHUSTER: Shocking video surfaces 25 years past. Did this pyrotechnic mishap lead to an addiction of painkillers and the subsequent death of Michael Jackson?

And the nominee is.

(BEGIN VIDEO CLIP)

TINA FEY, ACTRESS (impersonating Gov. Sarah Palin): And now, I'd like to entertain everybody with some fancy pageant walking.

(LAUGHTER)

(END VIDEO CLIP)

SHUSTER: Tina Fey earns an Emmy nod for her portrayal of Sarah Palin. Tonight, a special congratulations to "Saturday Night Live" for its amazing year in politics.

All that and more-now on COUNTDOWN.

(BEGIN AUDIO CLIP)

FEY: And I can see Russia from my house.

(END AUDIO CLIP)

(END VIDEOTAPE)

SHUSTER: Good evening from Washington, everybody. I'm David Shuster, in tonight for Keith Olbermann.

Like a zombie from "Dawn of the Dead," Republican criticism of the stimulus has risen from a brief slumber. But in our fifth story on THE COUNTDOWN: President Obama isn't afraid of a few ghouls and he's fighting back, forcing his Republican critics to howl in monstrous hypocritical agony.

You may recall that Republican Senator Jon Kyl of Arizona recently said that the government should cancel the rest of the stimulus spending because it was a failure. So, the Obama administration acted as if Senator Kyl actually meant what he said. Four different cabinet secretaries wrote to the governor of Arizona asking if she agreed with Senator Kyl.

From Transportation Secretary Ray LaHood: "If you prefer to forfeit the money we are making available to your state, as Senator Kyl suggests, please let me know." Mr. LaHood attached a three-page list of the projects paid for by the $521 million that Arizona is getting.

Republican governor made it clear her state wanted the money, adding, "The governor is hopeful that these federal cabinet officials are not threatening to deny Arizona citizens the portion of the federal stimulus to which they are entitled."

Governor, you might want to take that up with the junior senator from your own state.

And Arizona's other senator, John McCain, tried to grab his bit of flesh in this fight, quoting, "I strongly support the comments of Senator Kyl and call on the administration to retract its threat against the citizens of Arizona."

Meantime, in other Republican stimulus hypocrisy news, there's Governor Rick Perry of Texas directing his state to borrow $643 million from the federal government to cover unemployment claims-this from the man who earlier this year rejected $550 million in stimulus money.

And what does President Obama think of all of this? He offered a pretty clear idea to a huge crowd in Warren, Michigan, earlier this week.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I love these folks who help get us in this mess and then suddenly say, "Well, this is Obama's economy." That's fine. Give it to me. My job is to solve problems, not to stand on the sidelines and harp and gripe.

(END VIDEO CLIP)

SHUSTER: Let's call in "Newsweek" magazine senior Washington correspondent and political columnist, and MSNBC political analyst, Howard Fineman.

Howard, thanks, as always.

HOWARD FINEMAN, MSNBC POLITICAL ANALYST: Hi, David.

SHUSTER: Howard, as Governor Brewer and Senator McCain called it a threat, but in that particular skirmish, isn't the operative word "outmaneuvered"?

FINEMAN: Yes, I think so. In talking to some Republicans here in Washington and elsewhere, I think they would probably agree this was a little like General Custer saying, "I really executed a brilliant maneuver to get myself surrounded here," because the fact is, most governors, Republican and Democrat, in most parts of the country, as Governor Perry really showed by the-in the clip that you had earlier, they need the money and they need the projects, and they need it now.

SHUSTER: When Senator Kyl first made his comment about the failure of the stimulus, Senator Dick Durbin let him have it, reminding him that only $56 billion of the $787 billion has been spent. But Kyl and other Republicans like Congressman Eric Cantor seemed to believe that little more than five months into this administration, they can get away with a new round of slamming the stimulus?

FINEMAN: Well, I think they can complain about the economy and they're to going to do so. And President Obama has a pretty good comeback -- which you just heard.

But the fact is that the risk in doing what they're doing is that the stimulus program-as poorly designed in some ways as it was, that needs to be admitted-is really just getting up a head of steam now. And as a matter of fact, I think, over the next six to eight months or year is really going to kick in big time.

That's something the Democrats are going to stress. The president is going to stress. And that may, in fact have a good affect on the economy by the time-certainly by the time election time rolls around.

SHUSTER: We've also seen Karl Rove get in on the act. The former Bush senior adviser writing in "The Wall Street Journal" today that President Obama should have implemented more Republican ideas, like more tax cuts for the rich-though he did not use the word "rich." Obviously, this is a debate worth having. But are Republicans bringing anything new to the debate?

FINEMAN: No, they're not bringing anything new, and the problem is that the tax cut philosophy as expressed by George W. Bush and the Republicans in charge in the Congress really didn't work. It didn't work big time in the last many years of the Bush presidency.

And so, that gives Barack Obama some room to maneuver. He's got to be careful, however, I think, David, because if he piles up too much spending and too many programs that not everybody is in favor of, then the additional taxes he's proposing could become politically perilous for him. I don't think that's happened yet, but I can-I can assure, even though the Democrats aren't going to listen to Karl Rove, they're going to be pretty careful on the tax front as they move forward on, especially on healthcare.

SHUSTER: And the key question on all of that, of course, is the public patience. There were plenty of Republican governors to complain about stimulus money to their political detriment, and now, the public is somewhat less patient than it was when Mr. Obama first took office. But, are the Republicans mistaken in thinking that the public is already at that tipping point, ready to jettison President Obama's approach?

FINEMAN: Well, the White House is fully aware of that. In talking to them, I know they want to stress what other juice-and there's a lot of it-there is in the stimulus package. And they're going to be pushing that day in and day out in the coming months. As President Obama tries to portray himself, as he did in the clip that you showed, as a guy who's really got his sleeves rolled up and is working on the problems, and that's what he's going to try to show you all the Republicans complain from the sidelines.

SHUSTER: Howard Fineman of "Newsweek" and MSNBC-Howard, thank you so much. We appreciate it.

FINEMAN: Thank you, David.

SHUSTER: You're welcome.

Let's bring in Howard's colleague, "Newsweek" magazine's senior editor and MSNBC political analyst, Jonathan Alter.

Jonathan, good evening to you.

JONATHAN ALTER, MSNBC POLITICAL ANALYST: Hi, David.

SHUSTER: Republicans dare President Obama to take ownership of the economy. So, he does.

ALTER: Yes.

SHUSTER: . while slamming them for being whiners and sitting on the sidelines. Is that effective?

ALTER: Yes. He gets to have it both ways, you know? He can slam the carpers and whiners-as he called them-and continue to make the point that he didn't create this mess, continue to jump on President Bush, and convey that he's really part of almost the "shovel brigade," cleaning up this mess; but at the same time, be seen as taking responsibility.

That was something that he stressed over and over in the campaign. He talked about the new era of responsibility at the beginning of this presidency, and he's not in any position to shirk that responsibility.

So, right now, he's kind of walking a fine line between blaming his predecessor and taking responsibility. But I think he's doing a pretty good job doing it.

SHUSTER: Of course, the president and his surrogates have also been out there reminding the public that it's still way to early to judge the effectiveness of the stimulus. But isn't this small change compared to what President Obama is prepared to do or could bring on the bully pulpit, should we view the public's patients as truly fragile? I mean, he hasn't even addressed this head-on in a news conference yet.

ALTER: Yes. He has not really started to expend his political capital in a news conference much less a primetime Oval Office address. When you do that, you're really going to the people, and you're putting it on the line. I think you can expect him to do that at the opportune moment when healthcare really ripens in September or October. You will see him cash in some chips. But it's not time for him to do that yet.

SHUSTER: Getting back to the Senator Kyl-Obama administration tiff, one of the various ways that I suppose we could look at this is one thing that certainly is obvious. And that is, this administration was sick and tired of Republican politicians who slam the stimulus.

ALTER: Yes.

SHUSTER: . some of whom then go back to their constituents and act like they played some part in getting the money.

ALTER: Yes. These guys really have a-have a lot of nerve. And I think it's really also-it's pretty appropriate that it happened to Governor Brewer out in Arizona. You know, she replaced Janet Napolitano, done a very good job of running that state. Brewer comes in, starts basically running it into the ground, and she slashes-with the help of the legislature-slashes money for education, which is what the future of that state or any other state is based on.

So, for her to now turn around and get it, for siding with Jon Kyl and wanting to, you know, turn down the stimulus money until called on it by the White House, I think it's just deserts for the Governor Brewer and for any other-Mark Sanford or any of these other governors-who think they can score political points by attacking Obama on the stimulus, and not take the money.

SHUSTER: And it's been reported when Senator Kyl made his comments, it was White House Chief of Staff Rahm Emanuel who directed that letters from cabinet secretaries be sent to Governor Brewer. This after some Democrats are worried that the White House did not have a coordinated response to renew Republican attacks. Is it safe to say the White House is back on its feet?

ALTER: Well, I don't think they were off their feet on this. Look, Howard is right, that the stimulus was not structured in an optimal way, and there were some real design problems with that and they're seeing some of the effects of that. I do think they're showing a little more toughness now, politically, worrying a little bit less about bipartisanship and more about calling out the hypocrites-which is what these folks are, if they attack the stimulus and then at the same time want to take the money.

SHUSTER: Jonathan Alter of "Newsweek" and MSNBC-Jonathan, thanks as always. We appreciate it.

ALTER: Yes. Thanks, David.

SHUSTER: You're welcome.

The politics of pandering from the GOP were also "front and center" at the Sotomayor hearings today. After begging for more time to scour the judge's judicial record, the week of questions was devoted almost entirely to her speeches instead of her rulings. And after telling the nominee how much they were bothered by her "wise Latina" comment, today, karma came to visit Senator Jeff Sessions, with one giant slip of the tongue, quote, "We're going to do that crack cocaine thing that you and I have talked about before," end quote.

That's next on COUNTDOWN.

(COMMERCIAL BREAK)

SHUSTER: So, we all knew the Republicans were not making real headway against Judge Sonia Sotomayor. But were things doing that poorly that Senator Jeff Sessions had to announce he was going to do some crack cocaine?

And later, the man who brought us the rationale for torture in your name now defends his right to ignore the law so the U.S. can spy on you. That and Tina Fey gets an Emmy nod for playing Sarah Palin. That's next.

This is COUNTDOWN.

(COMMERCIAL BREAK)

SHUSTER: In her duties as an associate justice in the United States Supreme Court, would Sonia Sotomayor be: A, ruling on the law, or, B, giving speeches? Despite the Republican fixation on Judge Sotomayor's speeches, all that really matters is the nominee's judicial record.

Our fourth story on THE COUNTDOWN: Four long days of confirmation hearings have confirmed Republicans senators can't find nothing wrong with Judge Sotomayor's 17 years on the bench-not that they haven't tried, not that they didn't try some more today.

The Republicans extended question time to a third round of 10 minutes each. The Democrats all took a pass.

When the ranking Republican greeted the witness this afternoon, Senator Jeff Sessions of Alabama learned firsthand why the context of what you say can be so important.

(BEGIN VIDEO CLIP)

SESSIONS: During these hearings, we're going to do that crack cocaine thing that you and I have talked about before.

(END VIDEO CLIP)

SHUSTER: Hear only that portion of his remarks and it makes you wonder exactly how Senator Sessions planned to unwind after the hearing was finished for the day-you know, same as if you heard or only heard the part of Judge Sotomayor's speech in which she said, she hoped that a wise Latina woman would more often than not reach a better conclusion than a white male.

But if you give Senator Sessions a chance to explain himself, what he really meant to say becomes obvious.

(BEGIN VIDEO CLIP)

SESSIONS: We got to.

(LAUGHTER)

WADE HENDERSON, LEADERSHIP CONFERENCE ON CIVIL RIGHTS: Thank you, Senator. I appreciate it.

SESSIONS: I want to restate that.

(CROSSTALK)

SESSIONS: Let me correct the record.

UNIDENTIFIED FEMALE: Please, rephrase it, Senator. Please, rephrase.

SESSIONS: I misspoke.

HENDERSON: No. Quite all right.

SESSIONS: We're going to reduce the burden of penalties in some of the crack cocaine cases and make them fair.

(END VIDEO CLIP)

SHUSTER: Four days summed up by that one sound bite. Four days in which Republican senators have been fixated on lines taken out of context from speeches by Judge Sotomayor, because they can't find anything wrong with her judicial record.

(BEGIN VIDEO CLIP)

SEN. JOHN CORNYN ®, TEXAS: What should I tell my constituents who are watching these hearings and saying to themselves, "She says one thing," but at these hearings you are saying something which sounds contradictory, if not diametrically opposed to some of the things you've said in speeches around the country?

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: I would tell them to look at my decisions for 17 years and notes that in every one of them, I have done what I say I so firmly believe in. I proved my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome of cases, rejecting the challenges of numerous plaintiffs with undisputedly sympathetic claims.

(END VIDEO CLIP)

SHUSTER: Plaintiffs, like Frank Ricci, a firefighter who sued the city of New Haven, Connecticut, and turned out today to testify against Judge Sotomayor. She was among the judges who ruled for the city when it threw out a test that would have qualified Ricci and others for promotion but not African-Americans.

Judge Sotomayor had based her decision not on the personal stories of

the firefighters but on the law-something today's questions made clear -

the firefighters know little about.

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER (D), PENNSYLVANIA: Do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?

FRANK RICCI, NEW HAVEN FIREFIGHTER: That's beyond my legal expertise. I'm not an attorney or a legal scholar. I simply welcomed an invitation by the United States Senate to come here today and-because this is our first time that we've got ton testify about our stories. So, I can't comment on.

(END VIDEO CLIP)

SHUSTER: In the end, Republicans who have indicated they are likely to vote for Judge Sotomayor and those who will vote against even reached agreement on her judicial views.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM ®, SOUTH CAROLINA: You have, as a judge, been generally in the mainstream.

CORNYN: Judge, you know, I actually agree that your judicial record strikes me as pretty much in the mainstream of judicial decision-making by district court judges and by court of appeals judges on the federal bench. You appear to be a different person, almost, in your speeches and in some of the comments that you've made.

(END VIDEO CLIP)

SHUSTER: Lots to talk about with our own Lawrence O'Donnell, contributor to "The Huffington Post" and former chief of staff of the Senate Finance Committee when it was chaired by the late Senator Daniel Patrick Moynihan.

Good evening, Lawrence.

LAWRENCE O'DONNELL, MSNBC POLITICAL ANALYST: Good to be here, David.

SHUSTER: Even Senator Cornyn concluded in that last sound bite that Judge Sotomayor's judicial record does not match her speeches. Wasn't her judicial record supposed to be the focus of these hearings?

O'DONNELL: You would think. But when you have the speeches and it has meaty stuff in them, they're going to go out. And, look, what the public has to remember about these hearings is: these are the television invention. There were virtually no confirmation hearings for the Supreme Court before the invention of television. All the famous Supreme Court justices that you read about in the history books as a kid had no confirmation hearings at all.

And so, this is show, and that's what they were doing, and that's why they didn't concentrate on her judicial opinion -- 17 years as a judge. They concentrated on two or three speeches here and there, because this is nothing but a show and that's what these hearings always are.

SHUSTER: Senator Sessions and his "crack cocaine" declaration, I don't know, maybe the most ironic moment of the hearings considering how Republicans have taken Judge Sotomayor's remarks out of context.

O'DONNELL: Yes, you can see why Jeff Sessions had a lot of trouble when he was nominated for the federal bench and came to that committee for a confirmation hearing. He couldn't make it through.

So, it's-you know, look, that's what she was up against. That's the kind of ability she was up against, and she knew it going in. She'd been confirmed by that committee twice before. I think she entered confidently. I think she knew, in a way, how difficult it was going to be and how easy it was going to be.

SHUSTER: Firefighter Frank Ricci admitted he could not comment on anything requiring legal expertise-I suppose nor should we expect him to be able to. But what does it tell us about the Republican's case against Sotomayor when this was their star witness?

O'DONNELL: Yes. Look, he wasn't there in any sense to testify against her. They brought him in there for show. He told his story in a very articulate way. He was a very sympathetic witness.

There was another Hispanic firefighter who told a similar story-and this was the only time that they got to tell their stories. And so, it was actually quite an important moment for them in a way provided by Sonia Sotomayor. This-if she had not been the nominee, they never would have gotten to tell their stories and, oh, by the way, the Supreme Court would have ruled in their favor, anyway.

I mean, the end of their story is that the system worked very, very much in their favor, and Republicans have been trying to use them as an example of the system working against people. The Republicans forget that these guys won the case in the end.

SHUSTER: Senator Graham all but said again today that he would be voting to confirm Judge Sotomayor. So, when might we consider her to be confirmed and, Lawrence, what kind of justice do you expect her to be?

O'DONNELL: Well, she's going to be the solid judge she's been for the last 17 years. She's got a very clear record. I think she's going to be a leader on the Supreme Court.

The majority leader is trying to get this vote in before the August recess. I think he might be able to. I think he might be able to get as early as the end of next week. They have to get some appropriation bills off the floor and done before that. So, there's a lot of work to do. They might stretch out a little bit going into the August recess and not go into the August recess exactly when they thought.

So, I think she will be confirmed by the Senate before the August recess, and she'll be able to start setting up her office in the Supreme Court in August.

SHUSTER: Which would make this even faster in terms of the timeline than a lot of people had thought initially.

O'DONNELL: Exactly.

SHUSTER: Lawrence O'Donnell-go ahead.

O'DONNELL: And Chairman Leahy, he was being criticized for the high speed timetable earlier by Republicans. They completely surrendered on that criticism. All of them agreed that the committee and Leahy ran a very fair hearing and the timing was fair.

SHUSTER: Lawrence O'Donnell of "The Huffington Post" and MSNBC-

Lawrence, thank you so much.

O'DONNELL: Thanks, David.

SHUSTER: OK, ladies. Question: Would you say yes if this is how you were proposed to? Hmm.

And later, the Michael Jackson Pepsi commercial disaster, the never before seen video and why some say this was a huge turning point in the King of Pop's life.

(COMMERCIAL BREAK)

SHUSTER: On this date in 1969, at 9:32 in the morning, three men climbed into a metal tower standing 363 feet tall. With the exception of the three men and a tiny chamber on top, the vast majority of the tower was filled with millions of pounds of explosives. After the men got inside, they set the explosives on fire.

Twelve minutes later, the burning explosive that thrown the tower so high into the air it entered orbit around the Earth. In the days to come, that tower, a Saturn V rocket would separate into pieces, the smallest of which took two of those men, Neil Armstrong and Buzz Aldrin, to the moon.

Let's play "Oddball."

We begin in Osaka, Japan, where the Washington Nationals are touring and predictably, they're playing like a bunch of old women. Wait. These are old women. The team the Osaka Silver Sisters, grandmothers all, average age, 75. Former pros back in their 20s, the team never took off after scandalizing spectators with their lascivious outfits-as you can see here.

They started playing again after a reunion in 2005. Although they sometimes take on a younger male team, the grannies do have some advantages -- namely, lighter on their feet, one kidney lighter to be exact, and the benefits of one pacemaker and performance-enhancing drugs like Geritol and Flomax. Play ball!

Bristol, England, hello! Whoa, buddy! I said, hello, not "Howdy, sailor." Meet Pete Simpson, who wouldn't be the first young man to tape himself in his limey tidy whities, he wouldn't be the first young man to set it to music. He might not even be the first young man to then show the video to a public audience. Looking at you, (INAUDIBLE).

But he probably is the person to do it for Pete Simpson's reasons. See, the charming young woman by his side? Pete took her to what we she thought was a French art film. But it turned out to be Pete in his under-roos. Not far off, come to think of it. The video was a marriage proposal. She said, yes. And then removed his garter belt.

Finally, to Rio Di Janeiro, with a new twist on hanging out at home. Meet the Primo Brothers. They think houses with the roof and ceilings and windows and stuff are boring. So they spend their free time eating, sleeping and reading while suspended off the side of a building instead, using climbing gear to maneuver between a bed, desk and hammock.

The brothers spend 14 hours a day with furniture nailed to a support walls. When asked if they were afraid of heights, the brothers said, no, but it would be nice if the rent fell.

Coming up, in defense of spying; one of the justifiers of the Bush/Cheney wire tapping program takes umbrage at the notion that some prefer they follow the Constitution to which they swore an oath to defend.

And Sarah Palin may have taken umbrage at Tina Fey's portrayal of her. But she's the only one. For Fey, her spot on Sarah stylings have earned her an Emmy nomination. You betcha.

All that and more ahead on COUNTDOWN.

(COMMERCIAL BREAK)

SHUSTER: Based on Bush Justice department lawyer John Yoo's justification of torture, rejected even by the Bush administration, the Obama Justice Department has recommended disciplinary action against Yoo by the BAR Association.

But in our number three story tonight, his latest defense of warrantless surveillance is so poorly done, the guy really ought to be disbarred just for plain old ineptitude.

Yoo is pushing back after five inspectors general singled him out for special scorn in their report unveiling that Bush surveillance activities went far beyond the warrantless wiretapping Mr. Bush admitted to.

Mr. Yoo gets three things wrong in his very first sentence, the basis of his attempt to justify warrantless surveillance. Quote, "it was instantly clear after September 11, 2001 that our security agencies knew little about al Qaeda's inner workings, could not detect its operative entry into the country, nor predict where it might strike next."

New little about al Qaeda's inner workings? In 1996, Jamal al Foddle (ph) spent six months debriefing the CIA about al Qaeda's network companies, farms and port operations, an intel source told the "New Yorker Magazine."

For instance, could not detect al Qaeda's entry into the country. On August 6, 2001, President Bush was explicitly warned that al Qaeda had members in the U.S.

In march of 1999, German intel gave the U.S. information about Marwan al Shihi (ph), including a phone number, and asked the US to track him down.

The U.S. failed to do so and next picked up his trail after he piloted United Flight 175 into the South Tower.

The CIA began investigating 9/11 hijackers Khaled al Midhar (ph) and Narwaq al Zami (ph) in January 2000, but did not put them on the watch list until August 23, 2001, after they were in the United States.

And couldn't predict where al Qaeda would strike? A year before the Africa embassy bombings, the CIA learned about the bombing plot, when a member of al Qaeda walked into the Nairobi embassy and told them about it. After the first World Trade Center bombing, investigators found an e-mail from conspirator Needal Ayad (ph), quote, next time it will be very precise."

So it is not surprising Yoo gets everything else wrong, claiming that the law requiring warrants is obsolete, which does not mean it is not the law. Despite the fact that he himself said in 2003, the laws were perfectly fine.

I'm a little surprised, perhaps, that today we learned that the Bush administration's assassination squads also fell short. National Intelligence Director Dennis Blair telling the "Washington Post" the plan was canceled because intelligence officials had serious questions about its, quote, effectiveness, maturity and the level of control.

We're joined tonight by Scott Horton, a lawyer who has studied abuses related to the war on terror, and also serves as contributing editor at "Harper's Magazine." Thanks for your time tonight.

SCOTT HORTON, "HARPER'S MAGAZINE": Great to be with you.

SHUSTER: Mr. Yoo goes further than he ever did in the Bush administration, essentially tossing the FISA law that governs federal surveillance into the quaint and obsolete pile with the Geneva Conventions. But he also argues that the presidency itself was created specifically because the founders wanted a quick moving action hero in charge for emergencies. Care to respond?

HORTON: That's exactly right. Our founding fathers obviously wanted George III to remain at king of the kingdom of America. That's the Yoo view.

SHUSTER: Mr. Yoo's reasoning is so bad, he actually takes the argument that you need a warrant to wiretap and reads it as, you should not wiretap. Is this dishonesty, or incompetence, or something else going on?

HORTON: It's total dishonesty. He knows very well that the FISA statute, first of all, doesn't require a warrant in the sense of a criminal probe where there's probable cause. The only thing that's required is the government has to show relevance that there actually is reason-or national security concerned that motivates the request for surveillance. And it also authorizes the president or the attorney general to authorize wiretaps and surveillance for a period of time without a warrant.

So it gives much more flexibility than Yoo suggests in his op-ed piece. I think we should note her that John Yoo he refused to be interviewed, to participate in the investigation behind the inspector general's report. When he appeared before Congress and he is asked questions, he says he can't answer.

But then he writes these long ridiculous pieces that are published in the "Wall Street Journal" and the "Philadelphia Inquirer."

SHUSTER: Mr. Yoo also writes, quote, "the best way to find an al Qaeda operative is to look at al e-mail, texts and phone traffic between Afghanistan and Pakistan and the United States."

Is that not a somewhat childish or at least simple approach to counter-terrorism, coming from one of the so-called big brains of the Bush counter-terror brain trust?

HORTON: It's absurd. Of course, the point here is not to say that there should be no effort to monitor traffic between al Qaeda leadership and al Qaeda operatives. We want that. The point is that our Constitution requires some checks on what the executive does. That is, the executive can't use this authority to wiretap or observe a journalist or analyst or political figures.

In fact, we know, based on disclosures that came out over the last three years, they did all of those things.

SHUSTER: We've heard from other former Bush administration officials who have made the same sort of defense, that the United States couldn't possibly have known what al Qaeda was up to or where they might attack. Is this becoming a case where it was simply official after officials who were either so sort of out of touch or willfully wanted to ignore the evidence they had before 9/11?

HORTON: I think it's really more actually demagoguery. There was a concerted effort going on here to stampede the Congress into giving the administration all it wanted. And this sort of rhetoric was used, and I might add, very, very effectively, to intimidate Congress and Congressional leaders, to give them what they wanted.

Then, by the way, when they got amendments to FISA, they proceeded to ignore the amendments and the authority they got under the amendments. They continued to act illegally.

SHUSTER: Finally, the CIA hit squad plan; the "Washington Post" reports that it came to Leon Panetta's attention because they were about to try to take it operational again. In your assessment, is there still more we need to hear about this? A, never got off the ground yet? And, B, because it caused such a ruckus?

HORTON: Well, we should be very skeptical of these claims that it never got off the ground. Remember, we're looking at the National Security Act of 1947, which said that there was a requirement to brief an operational program. And do you really believe that Leon Panetta would have reacted the way he did, rushing to Congress to brief them, if, in fact, this program had never been operational? There's too much evidence mounting now that, in fact, actions were taken based on this plan.

SHUSTER: Scott Horton, national security lawyer and contributing editor at "Harper's Magazine." Scott, thanks for your time tonight. WE appreciate it.

HORTON: Great to be with you.

SHUSTER: Coming up, new video of the special effects disaster that some say was the catalyst for Michael Jackson's life to spiral out of control.

Tina Fey gets good news this morning. Her portrayal of Sarah Palin gets her an Emmy nod for "Saturday night Live." We'll remind you why the nomination is so well deserved.

And when Rachel joins you at the top of the hour, she will go head to head with Pat Buchanan over his racially charged column about Judge Sotomayor.

(COMMERCIAL BREAK)

SHUSTER: The Los Angeles Police Department says it will not confirm or deny it's treating Michael Jackson's death as a homicide. The Los Angeles coroner working on the case told the Associated Press that the toxicology that may determine the cause of death could be back next-as early as next week.

But in our number two story, NBC's Jeff Rossen with shocking new video of Jackson's 1984 Pepsi commercial accident that may point to the beginning of his deadly addiction to pain medication.

(BEGIN VIDEOTAPE)

JEFF ROSSEN, NBC NEWS CORRESPONDENT (voice-over): It was Michael Jackson's final day of the Pepsi commercial that changed everything. The shoot had been going smoothly until take six. There was a flash on stage. The pyrotechnics exploded too early. And suddenly the King of Pop was on fire. In this never before seen video, you can see the flames shooting from his hair.

MELANIE BROMLEY, "US WEEKLY": My first reaction when I saw this video is just the absolute shock. His hair is actually on fire for about eight seconds before anybody steps in to put it out. So he continues dancing, oblivious to the fact his hair is alive.

ROSSEN: Jackson kept performing for the cameras and the 3,000 fan there's to watch. He was still smoking as people rushed to help.

BROMLEY: When he suddenly realizes that there is a fire, he puts his sequin white glove on top of his head and tries to put it out. People crowd around him.

ROSSEN: He looks shocked. Who wouldn't be? If you slow the video down, you can see his scalp, the hair singed off.

It was January 1984; Michael Jackson was at the height of his career.

But this would become the watershed moment of his life.

BROMLEY: The fact that the Pepsi commercial went wrong is almost-it pin points, really, the beginning of the end, when everything started to go wrong. This is when he first became addicted to pain killers. He was prescribed Demerol to get over this injury.

ROSSEN: "US Weekly Magazine" obtained the video and posted it online. To this day, the Jackson family blames the Pepsi incident for many of Michael's problems.

Jermaine Jackson spoke with Matt about at it at Neverland.

JERMAINE JACKSON, MICHAEL JACKSON'S BROTHER: I had heard things about prescription drugs when he had the Pepsi burn.

ROSSEN: Twenty five years later, prescription drugs are at the center of his death investigation. Jackson's doctors have turned over medical records, including his dermatologist, Arnold Kline, and Dr. Conrad Murray, who was with Jackson at the time of his death. Dr. Murray is now in virtual hiding, though his lawyer denies Dr. Murray did anything wrong.

His spokesperson tells NBC News he met with investigators twice. The final interview on June 27th, two days after Jackson died, lasted three hours. They say he hasn't been served with subpoenas or search warrants, and that he's turned over all the documents requested.

USC law professor Jean Rosenbluth says prosecutors have an opportunity here to send a message.

JEAN ROSENBLUTH, USCA LAW PROFESSOR: When the whole world is watching, you've got a high profile victim, you get more bang for your buck if you go after the people who are criminally responsible in a situation like that.

(END VIDEO CLIP)

SHUSTER: Jeff Rossen reporting. According to TMZ, police are focusing their investigation on Dr. Murray. But they're asking for additional records from the King of Pop's dermatologist, Arnold Kline.

A big day for the television industry, and an even bigger day for Tina Fey. Emmy nods for her for both her work on "30 Rock" and her portrayal of the future ex-governor of Alaska. A look back at why Fey is getting such high praise next on COUNTDOWN.

(COMMERCIAL BREAK)

SHUSTER: Maybe it was the fancy pageant walking or going rogue on QVC. Perhaps she had us at I can see Russia from my house.

Our number one story, Tina Fey's star turned as Governor Sarah Palin, now Emmy nominated. Only ten more days until Sarah Palin becomes the ex-chief executive of Alaska. But Tina Fey's portrayal of her will live on.

Today, Fey received a nomination in the outstanding guest actress in a comedy series category for her role as everyone's favorite mavericky vice presidential candidate. It's a category which will pit her against two guest stars in Fey's own serious "30 Rock," which nabbed 22 nominations, the highest ever for a comedy in a single season.

Meanwhile, "Saturday Night Live" scored 13 nominations total, in part for its role during the 2008 presidential campaign season. Both shows, of course, can be seen on NBC.

Now, as Fey's fictional Palin prepares for a possible top TV honor, does this mean the governor's higher calling will include attend the Emmies? A look back now at the political season that was courtesy of "Saturday Night Live."

(BEGIN VIDEO CLIP)

TINA FEY, "SATURDAY NIGHT LIVE": Live from New York-

UNIDENTIFIED MALE: Live from New York-

WILL FARRELL, "SATURDAY NIGHT LIVE": Live from New York-

FEY: It's Saturday night!

UNIDENTIFIED MALE: I'm John McCain. I approve this message.

FEY: What's the difference between a-

AMY POEHLER, "SATURDAY NIGHT LIVE": Lip stick.

FEY: Between a hockey mom and a pit bull.

POEHLER: Lipstick.

FEY: Can I call you Joe? OK, because I practiced a couple zingers where I call you Joe.

UNIDENTIFIED MALE: OK, great.

FEY: Hillary and I don't agree on everything-

POEHLER: Anything.

UNIDENTIFIED MALE: Barack Obama says he wants universal health care. Is that so? Health care for the entire universe? Including Osama bin Laden?

UNIDENTIFIED MALE: I would like to take this opportunity to make my proponent a proposal. Effective immediately each of us suspend our campaigns and instead hold a series of three pie eating contests.

POEHLER: I believe that diplomacy should be the cornerstone of any foreign policy.

FEY: And I can see Russia from my house.

QUEEN LATIFAH, COMEDIAN: I would now like to give each of you a chance to make a closing statement.

FEY: Are we not doing the talent portion?

POEHLER: Who is that under there?

OBAMA: I enjoy being myself. I'm not going to change who I am just because it's Halloween.

POEHLER: Well, that's-that's great.

I love your outfit.

HILLARY CLINTON, SECRETARY OF STATE: Well, I love your outfit.

POEHLER: Thank you.

CLINTON: I do want the earrings back.

POEHLER: Oh, OK. Oh. (LAUGHTER)

CLINTON: Do I really laugh like that?

POEHLER: Oh-

CLINTON: All right.

MCCAIN: Barack Obama purchased air time on three major networks. We, however, can only afford QVC.

FEY: These campaigns sure are expensive.

MCCAIN: They sure are.

FEY: And who wouldn't want the complete set of limited edition Joe action figures? Joe the Plumber, Joe Six Pack, and my personal favorite, Joe Biden. You pull this chord, he talks for 45 minutes.

UNIDENTIFIED MALE: I take the Amtrak to work every day. Then after work, I take it home.

FEY: Listen up everybody, I'm going rogue right now, so keep your voices down. Available now, we got a bunch of these t-shirts.

UNIDENTIFIED MALE: I will continue what I've done for 25 years, which is to reach across party lines. Somebody that pee pants over here would never even consider.

UNIDENTIFIED MALE: Oh, no. It's that crazy lady from the McCain rally. Oh, no.

(INAUDIBLE)

UNIDENTIFIED FEMALE: But again-not to belabor the point, one specific thing.

FEY: Katie, I'd like to use one of my life lines.

FARRELL: When you think of John McCain, think of me, George W. Bush. Think of this face. When you're in the voting booth, before you vote-yes.

UNIDENTIFIED MALE: Just a few moments ago, my opponent slandered my very best friend in the world, Joe the Plumber, by calling him imaginary. Would the senator like to apologize to Joe for that remark?

UNIDENTIFIED MALE: Joe, I'm attempting to confirm your existence.

UNIDENTIFIED MALE: Senator, why don't you say it to his face. He's right here.

UNIDENTIFIED MALE: Um, Joe, if I in any way implied that you do not exist, I sincerely apologize.

FEY: And now I'd like to entertain everybody with some fancy pageant walking.

(SINGING)

GOV. SARAH PALIN ®, ALASKA: I'm Sarah Palin. Good night, and have a pleasant tomorrow.

(END VIDEOTAPE)

SHUSTER: Congrats to Tina Fey and the entire show for all of their combined Emmy nods. We don't know how we would have made it through Decision 2008 without them.

That will do it for this Thursday edition of COUNTDOWN. I'm David Shuster, in for Keith Olbermann. And now to take on Pat Buchanan over his Sonia Sotomayor column, ladies and gentlemen, here is Rachel Maddow.

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

END

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