All In With Chris Hayes, Monday, December 16th, 2013

ALL IN with CHRIS HAYES
December 16, 2013

Guests: Matt Katz, Gordon Johnson, Bob Herbert, Myrna Perez, William Barber, Jameel Jaffer, Steve Cohen


CHRIS HAYES, MSNBC HOST: Good evening from New York. I`m Chris
Hayes.

And even as the latest polling finds New Jersey Governor Chris
Christie leading not only the Republican presidential field but also a
theoretical matchup against Hillary Clinton, Christie finds himself right
in the middle of the biggest political scandal of his career. Just wait
until the voters of Iowa hear about this one.

(BEGIN VIDEOTAPE)

GOV. CHRIS CHRISTIE (R), NEW JERSEY: Tonight, I stand here as your
governor, and I am so proud to be your governor.

(APPLAUSE)

HAYES (voice-over): Just last month, Chris Christie swept to re-
election in a landslide and launched himself towards the White House. But
today, his administration is in crisis.

UNIDENTIFIED MALE: New Jersey governor Chris Christie has just
announced that one of his top appointees has resigned amid a growing
controversy.

UNIDENTIFIED FEMALE: Allegations now that politics played a role in
a traffic study that jammed up several lanes of George Washington Bridge.

HAYES: Believe it or not, a traffic scandal is threatening to upend
the Christie administration, a scandal that just a week ago the governor
dismissed.

CHRISTIE: You really are not serious with that question.

HAYES: And you can understand why Christie waved the allegations off
as a joke. On the face, they seem absurd, that a Christie crony ordered
one of the worst traffic jams in recent memory to punish a political foe.
The George Washington Bridge between New Jersey and New York City is the
busiest bridge in the world, and on September 9th, the first day of school,
two of the three entrance lanes to the bridge were closed and stayed that
way for four days.

An epic traffic jam turned the town of Ft. Lee, where the bridge
connects New Jersey to New York, into a parking lot.

There was no notice or cause given for the closures, but Mark
Sokolich, the Democratic mayor of Fort Lee, had an idea as to why. He
believed the lanes were closed in political retribution for refusing to
endorse Christie for governor. The Port Authority said the lane closures
were due to a traffic study.

The New Jersey legislature decided to investigate. At a November
hearing, Christie`s top port authority appointee testified that the order
to close the lanes came directly from Christie`s high school buddy, Dave
Wildstein, another Port Authority appointee. Less than two weeks later,
Wildstein resigned, calling the Fort Lee scandal a "distraction." Three
days later, bridge officials testified that they were also told the lane
closures were part of a traffic study and, oh, yes, also not to tell
anyone.

UNIDENTIFIED MALE: I was told to not discuss this with anyone.

HAYES: But get this, the executive director of the Port Authority,
which runs the George Washington Bridge, testified there was no traffic
study at all. It didn`t exist.

UNIDENTIFIED MALE: I`m not aware of any traffic study. I don`t know
why it was done.

HAYES: On Friday, Christie announced a second port authority
appointee of his was resigning.

UNIDENTIFIED FEMALE: Under fire and under pressure, Governor
Christie accepts the resignation of a top appointee to the Port Authority.

HAYES: So far, Chris Christie`s response has been to blame
Democrats.

CHRISTIE: National Democrats will make an issue about everything
about me, so get used to the new world, everybody. We`re not in Kansas
anymore, Dorothy.

HAYES: Of course, Christie can put this scandal to an end today. He
can give the answer to a very simple question -- why were two entrance
lanes to the George Washington Bridge closed in September for four days?
Today, we don`t know the answer.

Now, we don`t know if Chris Christie ordered the lanes closed to get
back at a mayor or knew that his close friend did. But if it comes out
that he did, it is 100 percent disqualifying for higher office. Someone
willing to shut down the world`s busiest bridge as payback over a petty
political slight cannot be trusted with the IRS or the NSA or the nuclear
codes.

(END VIDEOTAPE)

HAYES: Joining me now, WNYC and New Jersey Public Radio reporter
Matt Katz. He covers Governor Christie.

All right, Matt, I first heard about this story and first heard about
the allegations, and I said, obviously, this is ridiculous. It is
incomprehensible that anyone would be this petty or anyone would allow
themselves to be implicated in something that would be just so politically
destructive if it ever got out.

We are now two resignations later. This is an actual thing going on,
and we still don`t know the answer to the whodunit or why they closed the
lanes.

MATT KATZ, NEW JERSEY PUBLIC RADIO REPORTER: That`s right. Seemed
this story could maybe go away until last week, when there was a hearing in
the state legislature and official after official said they knew of no
traffic study. And now the question is, who did know and who was involved
in ordering up this traffic study, real or fake.

HAYES: Wildstein, who is the member of the port authority who was
the first of the two Christie appointees to resign, give us a little sense
of his relationship with Chris Christie, because the plausibility of this
being a Chris Christie plot increases if you recognize the fact that there
is actually a very tight relationship there.

KATZ: Sure. They went to high school together. They were different
years, but they did go to high school together. And then Wildstein has
been involved in politics in one way or the other for the last several
decades, just like Christie. He ran an anonymous, under a pseudonym, he
ran a political Web site. Christie was considered to be one of those who
may have leaked him a story from time to time, and they grew up in the same
town and they had the same roots.

I see him, though, as sort of in the outer inner circle. He`s not
necessarily one of the half dozen, dozen people that have Christie`s ear at
all times. He`s sort of at that next level, somebody he trusted enough to
put in this job. He was put in this job at the Port Authority to sort of
be his eyes and ears there.

But the next step, really, and what Democrats are looking for is to
see if anybody in that very inner circle of Christie maybe sent an order to
Wildstein to do this traffic study. And we`re hopefully going to find that
out sooner than later.

HAYES: Any -- does it say something about Chris Christie`s character
or the way he`s conducting himself as governor that it would be even
remotely plausible that the reason he would shut down, you know, the George
Washington -- well, essentially shut down the majority of the George
Washington Bridge, would be payback for a Democratic mayor who didn`t
endorse him?

KATZ: There has always been this sense that the governor will seek
revenge against those who don`t follow his line and his orders. Now, we`ve
never really gotten concrete evidence of that, other than this. We have
circumstantial evidence. We have things like Republican senators vote for
a bill and then Christie vetoes it, and then Democrats try to override that
veto and Republicans all change their votes to fall in line with the
governor.

So, that makes it seem like someone got a phone call and said you`d
better change your votes.

HAYES: Right.

KATZ: But we`ve never had real concrete evidence like this
potentially could provide.

HAYES: Matt Katz from WNYC and New Jersey Public Radio, thanks so
much for joining us tonight.

KATZ: Thank you, Chris.

HAYES: Joining me now is New Jersey State Assemblyman Gordon
Johnson, a Democrat whose district includes Fort Lee, and Bob Herbert,
former "New York Times" columnist, now a distinguished fellow at the
progressive think tank Demos.

Assemblyman, I`ll begin with you.

ASSEMBLYMAN GORDON JOHNSON (D), NEW JERSEY: Yes, sir.

HAYES: Do you think the governor, out of the crassest, most, you
know, petty motivations caused a traffic jam in your town to punish a
Democratic mayor there?

JOHNSON: I don`t know if the governor actually made a phone call and
told these individuals, Mr. Wildstein and Mr. Baroni to do this alleged
traffic study and close lanes, but it sure seems to me that it was done on
his behalf when the mayor did not support him when he was running for the
election.

HAYES: Wait, you think it is -- you have worked with this governor,
you`re a re-elected representative in the state assembly.

JOHNSON: Yes.

HAYES: You think it`s plausible that Chris Christie, or Chris
Christie`s confederates would do something like this?

JOHNSON: Well, when this first came to light and the legislature
asked questions as to what is going on here, at first, there was no
response. Then they came up with this traffic study because it favored
Fort Lee residents, which made no sense at all, and Mr. Baroni came to the
hearing with this large graphic depicting the lanes that were being shut
down, and this particular entrance was set aside for Fort Lee residents
back in the 1930s.

But there`s no contract, nothing in writing about that, by the way.
And there`s no signage that says Fort Lee residents only, so we kind of
look at that and go, huh? So, this is --

HAYES: Every time, and this is what I found interesting, it could be
cleared up very easily.

JOHNSON: Yes.

HAYES: Every time they try to explain something it looks more and
more like there genuinely is something super fishy happening.

JOHNSON: Exactly right. When you ask, it`s like now you`re making
assumptions. What is the purpose of this?

HAYES: Bob -- this is my big question, I think people vastly
overestimate how well the Chris Christie shtick plays in the rest of the
country. As someone how lived in Chicago, I did a lot of the coverage of
the Midwest for a long time.

Good luck going to Midwestern voters and your opponents are running
ads about you`re the kind of person who closes two lanes of traffic to
screw over some local mayor.

BOB HERBERT, DEMOS: I couldn`t agree more, and that`s why Chris
Christie is not going to be the GOP nominee for president. I mean, I
personally think that you can take that to the bank.

Here`s the thing that -- there are a couple of things that strike me.
I started covering politics in New Jersey way back in the 1970s, and to
give you a sense of what politics in Jersey is like, many of the people
that I was covering were carted off to prison. So, Jersey politics is, you
know, shaky. This is like small potatoes compared to those kinds of
things.

But here`s the thing that strikes me about this scandal. If it was
done, and I`m almost sure it was done -- we don`t have Christie`s
fingerprints on it, but I`m almost sure it was done to punish the mayor of
Fort Lee. If it was done for that reason, how is it going to punish the
mayor of Fort Lee? He doesn`t run the bridge. The first thing he`s going
to say --

HAYES: He`s not sitting in traffic trying to get to his job!

HERBERT: -- I have nothing to do with that. Whoever ordered the
closure of this bridge would be the ones who would be punished.

JOHNSON: But the victims in this closure that went on for four days,
where you had traffic tied up in the borough of Fort Lee where first
responders couldn`t get to their calls because of all the traffic in town,
your police, your fire, EMS had difficulty getting to their calls because
of all the additional traffic, they`re the ones that pay, the commuters,
the ones who have to go to work every day, the middle class people paid,
and they paid a higher toll when they crossed the bridge when they finally
got to the toll, too, by the way.

But the middle class paid for this abuse, the abuse of power that was
taken at the Port Authority.

HERBERT: But that`s why it`s a serious issue, though.

HAYES: Exactly. No one -- look, no one cares about a traffic jam --

HERBERT: The politics is crazy --

(CROSSTALK)

HERBERT: And it`s a funny story.

But you did have first responders who were held up. There could have
been a tragedy as a result of it. You did have kids who weren`t able to
get to school on time.

HAYES: But it`s also the fact, it`s the principle of the thing.

HERBERT: Yes.

HAYES: The abuse of power is a very serious thing.

HERBERT: Exactly.

HAYES: There are different ways that power can be abused. When we
talked about the bill of particulars against Nixon, much of it had to do
with the enemies list and much of it had to do with using the power of the
executive in all its majesty and glory to pursue petty vendetta against
people that he thought were screwing him over, and that was the core of
what the kind of Nixonian crime was.

You cannot use your power or your cronies to shut down arms of the
government that have to render services to people as a means of political
payback. That is absolutely a disqualifying thing, if it turns out to be
the case that Chris Christie`s fingerprints --

HERBERT: That is exactly right. And the thing that Christie and his
associates -- I started to say cronies -- that Christie and his associates
are learning now is that once you become so high profile, you know, a
leading candidate for the GOP presidential nomination, everything is going
to come out. You are going to be so closely scrutinized. You are not
going to be able to get away with this kind of pettiness.

HAYES: Where does this go next, Assemblyman?

JOHNSON: Well, as you know, John Wisniewski, the chair of the
Transportation Committee, issued more subpoenas, so there will be more
testimony taken on this to find out what exactly happened or why this
happened, why this happened.

What also came out in the testimony that we`ve heard was this
atmosphere of fear and intimidation within the Port Authority. The GAO
released a report some time this past summer that stated that there`s a
lack of transparency in this Port Authority, and this Port Authority has a
budget bigger than 26 states in this country, they have a very large budget
with a lack of transparency.

So, what has come out of this is not just this abuse of power and
authority that was taken but also that what`s going on inside the Port
Authority with this intimidation and fear. The person who testified, a 30-
year veteran of that company. He managed the bridge -- well, one managed
the bridge, one managed the entire terminal operations with two people
there. Both of them were afraid that if they said no to this -- and they
both knew this was wrong to do.

HAYES: Right, they both raised a cry, said this is crazy, you can`t
do this.

JOHNSON: Right, they both knew it was wrong and they did it because
they were in fear of the job if they did not do it.

HERBERT: And a couple things. One, they lied about the traffic
study. There was no --

HAYES: They lied. They lied.

HERBERT: There was no traffic study. Then, somebody thought it
might be possible to keep this thing under wraps? Like it wasn`t going to
go --

HAYES: Honestly, when I saw this at first, I thought no way. And
the basic smell test, I mean, any journalist who started looking at the
excuses, it was like, no, they`re clearly covering something up.

New Jersey State Assemblyman Gordon Johnson and Bob Herbert from
Demos -- thank you, gentlemen.

JOHNSON: Thank you, sir.

HERBERT: Thank you, Chris.

HAYES: To hear Republicans tell it, voter fraud is everywhere,
running rampant and must be stopped. It`s so out of control that Iowa`s
secretary of state made it the centerpiece of his campaign. How that
worked out for him, up next.

(COMMERCIAL BREAK)

HAYES: Today in a surprise ruling, a federal judge said this about
the NSA, "Surely, such a program infringes on that degree of privacy the
Founders enshrined in the Fourth Amendment."

In the spirit of this ruling, my question for you tonight is this --
which modern-day governmental policies and practices do you think the
Constitution`s framers would be freaking out about right about now? Tweet
your answers @allinatchris or post to Facebook.com/allinwithchris.

Share a couple at the end of the show. Stay tuned.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Our next guest is calling for an investigation
after newly released evidence shows that more than 900 people, dead people,
appeared to have voted in recent elections in South Carolina.

UNIDENTIFIED FEMALE: What is the problem with just asking people to
have a photo ID?

UNIDENTIFIED MALE: Now to the FOX News voter fraud unit.

(END VIDEO CLIP)

HAYES: If you watch FOX News, if you read "The Drudge Report," then
you know there is nothing more terrifying, no greater threat to American
democracy than voter fraud.

(BEGIN VIDEO CLIP)

(SCREAMING)

(END VIDEO CLIP)

HAYES: And no one knows this better than Iowa`s Republican Secretary
of State Matt Schultz, who ran for office in 2011 on the signature issue of
stamping out voter fraud, in the notoriously corrupt state of, again, Iowa.

Still, he made good on his promise, paying Iowa`s division of
criminal investigation $150,000 to do nothing but root out cases of voter
fraud. And after 18 months, guess how many cases of voter fraud turned up?
A thousand cases, you say? OK, 100. How about 50? Twenty-five?

Nope! In a state where more than 1.5 million ballots were cast in
the last presidential election, their efforts yielded criminal charges in,
wait for it, 16 cases -- 16 cases. Five of those cases have resulted in
guilty pleas. Five others have already been dismissed, and none of the
cases have gone to trial.

These include such terrifying assaults on democracy like a woman who
cast a absentee ballot for her daughter, which does not seem to constitute
voter fraud, since the daughter had just moved to Minnesota and the mom
thought it was too late for her to register to vote in her new state. This
seems to be more of what you call a misunderstanding.

Or the three of the five guilty pleas that came from felons who just
thought their voting rights had been reinstated.

But the fact that voter fraud is an absolute mess has always been the
case. Whenever researchers have set themselves atask of finding voter
fraud, they`ve failed, because -- well, it`s an astonishing, rare
phenomenon. But that has not stopped the right from beating the drum on
the issue, and that`s because they don`t really care about stopping voter
fraud, they care about stopping people from voting.

And in the wake of the Supreme Court`s voting rights decision in
June, gutting the core of the Voting Rights Act, seven states, largely
clustered in the South, which no longer need the federal government`s
permission to enact their changes to voting laws, have already announced
new restrictions on voting, including voter ID laws.

And that is why a new piece in "The Huffington Post" by Bob Kuttner
calls for a new organizing campaign modeled on the famous Freedom Riots of
the 1960s that helped end segregation, a campaign that would mobilize
organizers and citizens to make sure that everyone can vote.

Kuttner writes, "If the forces of reaction are demanding photo ID
cards, let`s just go door to door and make sure that every eligible voter
gets one."

Joining me now Myrna Perez, deputy director of the Brennan Center for
Justice, and Reverend Dr. William Barber, president of the North Carolina
NAACP.

Reverend, I`ll begin with you.

You are in a state that`s been ground zero for the attack on voting
rights, passed a law that one election law scholar called the most
restrictive in the post voting rights era. What is the next plan, given
the fact that the courts probably will not strike anything down in time for
the 2014 election? What do you do next, reverend?

REV. DR. WILLIAM BARBER, NORTH CAROLINA, NAACP: Well, thank you so
much, Chris.

You know, here in North Carolina, we are, in fact, headed to court.
You know, we just got a date. We`ll be doing, actually fighting for an
injunction this summer. And across the board at the NAACP, we`ve really
decided here`s what will be our focus.

Number one, we will be making our case in court to ensure that these
laws are ruled unconstitutional. Number two, we will be mobilizing
everybody to get out and vote, particularly in 2014. Number three, we`ll
be monitoring all of the attacks that are happening on voting rights
because of the denial of Section 5. And then number four, we will be
making every effort to insure that Section 4 is reinstated so that Section
5 can be implemented.

Those are the four areas that we have to fight in, we have to push
in. You know, this whole voter fraud issue is a fraud, but that`s the only
thing that the far extreme right can do. They have to create these frauds
because they know that their kind of politics cannot win if everybody votes
and if people are engaged at the polls.

The only way they can win is to stifle the electorate. The only way
they can do that is to create a fraud and then enact the fraud, and we have
to fight them on every turn.

HAYES: You know, Myrna, there is an interesting case of a conversion
on the issue of voter fraud that happened recently, with Judge Richard
Pozner. Judge Pozner issued an opinion in a case -- and I know him
personally -- he wrote an opinion in a voter ID case that upheld Indiana`s
voter ID law largely on the rights that it would combat fraud and he
recently gave an interview on this, saying I`ve come around on this, I
don`t think the fraud`s there.

MYRNA PERERZ, BRENNAN CENTERR FOR JUSTICE: Right. I think what`s
important is that common ground be found on a couple factors. One,
everybody believes that only eligible people should vote.

HAYES: Right. Yeah, I think we`re all --

PEREZ: We`re all on that page. And in the course of dealing with
the misinformation that people may have that may cause folks to register to
vote when they`re not eligible, we need to have a response that is measured
and appropriate we cannot have laws or policies that overbroad. That are
too restrictive, that make it harder for eligible Americans to vote.

And one of the problems that we see is that when there are
allegations of voter fraud, we have a reaction that is disproportionate to
what the science and the data suggests is actually the problem, and they
don`t actually target the problem --

HAYES: Right.

PEREZ: -- of voter fraud.

Instead, they enact these laws and these barriers that are going to
make it harder for eligible Americans to participate in our democracy.

HAYES: In fact, one of the things we`ve seen reliably in studies of
voter fraud is that to the extent it actually exists, Reverend, to the
places where we have seen some indications -- and again, these are very,
very small numbers of cases -- in places, it`s largely an absentee voting,
and you don`t see, for some reason, absentee voting on the chopping block
in states like your own.

BARBER: That`s right. If I understand your question, I heard a
little noise in the background, but you`re exactly right. What we see
happening -- for instance, in our state, the speaker of the house, Thom
Tillis, who wants to be a senator, went out of his way, led his extremists
to claim there was voter fraud, then had to admit on MSNBC that, in fact,
there was no voter fraud.

But they created the fear. And once they created the fear, they used
that fear to produce a master voter suppression law, not just voter ID
(AUDIO GAP) cut back early voting, cut back Sunday voting, denied 16 and
17-year-olds from preregistering.

What they do is they use this fraud to create fear, and then they use
that fear to do an extreme reduction in voting opportunity.

Because at the end of the day, injustice always has to have a lie to
support it to create the fear to undergird it, and then they use that to
destroy the opportunity for people to vote because they know, if people
vote, this narrow-minded, extremist agenda cannot pass a public test at the
polls.

HAYES: And it`s particularly the case, Myrna, that it is very hard
to come up with justification for a whole new raft of restrictions on
voting in the absence of some problem you`re trying to solve. I mean, no
one just -- you know, there`s limited legislative bandwidth, limited time -
-

PEREZ: There`s limited resources.

HAYES: There`s limited resources.

There`s a study out of the Brennan Center about how much it`s going
to cost the state of Missouri to implement their voter ID law. It`s not
chump change, something in the order of about $6 million in the first year.

PEREZ: That`s what`s important to remember, is that even in states
that provide free ID, or supposedly free ID, it`s never really free.

HAYES: Right.

PEREZ: First, it costs the states a great deal of money to provide
the public education that is needed. Then there is also additional efforts
that have to come with creating this brand new ID out of scratch that
didn`t exist and all the staffing, then all the training and all the
training of the poll workers and the election officials.

And then for people, they need the underlying documents.

HAYES: Right.

PEREZ: Which still cost money. They need to take the day off of
work to go to the DMV. They need to get themselves there. Many of the
DMVs don`t close by or are not operating during hours that people are off.

And so, the thing that I think as Americans we need to ask ourselves,
what kind of barriers are we going to put in front of the ballot box? And
on the basis of what evidence?

HAYES: Right.

PEREZ: What kind of justification are we going to demand before
doing such barriers?

HAYES: Reverend, given the fact that you`re going to have a voter ID
law almost certainly in that state, you know, barring some injunction by a
court, is there a grassroots way to get people the identification they need
to make sure they will have access to the polls?

BARBER: Well, in North Carolina, it doesn`t even enact until 2016,
so whether we have an injunction or not, the voter ID part doesn`t go into
play until in 2016. What we`re trying to get people out to the polls in
2014, which can shift tools in our legislature.

What we`re trying to do is block the vote of the early registration
to end same-day registration and Sunday voting, those kinds of things. And
what`s happened in our state, Chris, is that these people want to hold back
the vote, because what they`ve done in public policies is the one mistake
you don`t ever want to make, and that made everybody mad.

They`ve cut education. Teachers are mad, parents are mad.

They`ve cut Medicaid, sick people are mad.

They`ve cut unemployment, unemployed people are mad.

The Republicans who say they never raise taxes raised taxes 85
percent of North Carolinians, now the taxpayers are mad. Even Republicans
are mad.

Again, I go back to my point, we must understand that they know that
their agenda cannot meet the test of a full voting America, and that`s why
they`re working so hard. So, what I say to folk, in 2014, it ought to be
mass mobilization and a referendum on this extremism in every state, and
particularly throughout the South. We ought to have freedom summer at the
polls -- at the polls like never before.

HAYES: Myrna Perez from the Brennan Center for Justice, and the one
and only Reverend Dr. William Barber from the North Carolina NAACP -- thank
you both.

PEREZ: Thank you.

HAYES: Very important update on the latest developments in the saga
of black Santa, next.

(COMMERCIAL BREAK)

HAYES: In a delightful twist of unintended consequences from this year`s
war on Christmas hysteria, Black Santa has officially become the mascot of
this holiday season.

Of course, it all started with this Aisha Harris piece for Slate.com, but
the problems inherent in the Santa who is default white. That column went
to one of the more baffling moments in all cable television, courtesy of
FOX News anchor Megyn Kelly.

(BEGIN VIDEO CLIP)

MEGYN KELLY, FOX NEWS ANCHOR: And for all you kids watching at home, Santa
just is white, but this person is just arguing that maybe we should -- we
should also have a black Santa. But, you know, Santa is what he is, and
just so you know, we`re just debating this because someone wrote about it,
kids.

OK, wanted to get that straight.

(END VIDEO CLIP)

HAYES: And that, quite naturally, led to an absolute eruption of outrage,
satire and ridicule.

(BEGIN VIDEO CLIP)

JON STEWART, HOST, "DAILY SHOW WITH JON STEWART": Santa is just white.
And who are you actually talking to? Children who are sophisticated enough
to be watching a news channel at 10:00 at night, yet innocent enough to
still believe Santa Claus is real, yet racist enough to be freaked out if
he isn`t white.

UNIDENTIFIED FEMALE: I can`t believe that you and Mrs. Claus are black.

KENAN THOMPSON, "SATURDAY NIGHT LIVE": Oh, she`s not black.

UNIDENTIFIED FEMALE: She`s not?

THOMPSON: No, no, no, no, no, no. You think a black woman would tolerate
living out in the middle of the snowy wilderness? No, if Mrs. Claus is
black, Santa would be living in Atlanta near her mama.

DON LEMON, CNN ANCHOR: I think you would find a black Santa Claus in every
black home because --

(LAUGHTER)

Santa Claus is black in black homes.

UNIDENTIFIED MALE: Right.

LEMON: And Santa Claus is white in white homes. Santa Claus is Mexican in
Mexican homes.

(END VIDEO CLIP)

HAYES: Just wait until FOX viewers find out Santa`s actually a black man
pretending to be a black woman.

(BEGIN VIDEO CLIP)

TYLER PERRY, ACTOR: Ho, ho, ho. Not you. Look how you jumped on that. Go
see "A Madea Christmas."

STEPHEN COLBERT, HOST, "THE COLBERT REPORT": Besides, black people have
their own holiday. It`s Martin Luther King Day. By the way, for any kids
watching at 11:30 at night, Martin Luther King is black and he is real.

(END VIDEO CLIP)

HAYES: All right, all of that led Megyn Kelly, to her credit, to return to
the issue with a segment that was sort of ambiguously perched somewhere
between apology and double down.

(BEGIN VIDEO CLIP)

KELLY: The knee-jerk instinct by so many to race-bait and to assume the
worst of people, especially people employed by the very powerful FOX News
Channel. Contrary to what my critics have posited, neither my statement,
nor Harris`, I`m sure, was motivated by any racial fear or loathing. We
continually see St. Nick as a white man in modern day America. Should that
change? Well, that debate got lost.

By the way, I also did say Jesus was white. As I`ve learned in the past
two days, that is far from settled.

(END VIDEO CLIP)

HAYES: Yes, yes, very, very far from settled. Now on the silly, serious
scale, this story has tended to tilt to the silly side, but here`s what`s
not so silly about turning Santa`s race into a debate.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Cleveland High freshman Christopher loved Christmas,
but that all changed last Thursday when he wore this Santa hat and beard to
school. His parents say a teacher told Christopher, who`s black, he
couldn`t be Santa because Santa is white.

(END VIDEO CLIP)

HAYES: That`s really a thing. That really happened in an Albuquerque
suburb last week. It`s the sort of story that strikes a nerve, and I can
tell you why. I have a 2-year-old now, so I know that as you watch your
kid walk through the world, it`s like watching a turtle without a shell.
They`re perceiving everything around them, even stuff you don`t think
they`re noticing. They`re taking it all in, but they don`t have the
facilities yet to process it all.

So they`re often getting messages that you as their parent don`t control,
many of which are harmful or hurtful, and for millions of nonwhite kids,
the message that Santa is white might very well be one of those messages.
In fact, one of the most insidious aspects of the racial regime in which we
labor is that whiteness is the default, whiteness is invisible, whiteness
does not exist as a thing, as something to be noticed.

Things just are white, people just are white, Santa just is white. But
here`s the thing, until a few years ago, the president of the United States
was white. He just was. That was a verifiable fact. But that changed.
So maybe Santa could change, too?

And speaking of changing Santa, here`s what Santa should not be. This is
Santacon. If you`re not familiar, it`s basically a costumed pub crawl that
started in San Francisco in 1994 and since gone global. It acts as an
opportunity for the same inebriated louts who crowd into the city to get
publicly drunk on St. Patty`s day to trade in their green for red and white
and get publicly drunk in December.

This year`s Santacon, a number of drunken Santas could be seen brawling on
the sidewalks near Union Square here in New York City.

So while we`re on the subject of whiteness as default, let me just hazard a
guess that if the people streaming into the city every holiday season to
get drunk and fight were overwhelmingly black, official New Yorkers`
reaction would be a lot less ho, ho, ho.

(COMMERCIAL BREAK)

HAYES: Big news today in the world of spying. You know, when a federal
judge that was appointed by George W. Bush calls what the NSA has been
doing to virtually every citizen unconstitutional, it`s really bad. That
story`s coming up.

But first, I want to share the three awesomest things on the Internet
today. We begin in a garage in Florida, where an Orlando filmmaker is
selling his car. This is the Craigslist ad for Luke Akers` 1996 Nissan
Maxima.

The pictures aren`t much to look at, but it`s Akers` descriptions of the
car is a sight to behold. "This pavement yacht has a ride as smooth as a
Pegasus` back side. A warrior land-ship-yacht with scars to prove is has
indeed been to war and back. This Maxima no longer needs to let the
odometer tell it how far it has gone. It has chosen a path of greatness
and valor and refuses to let silly numbers determine its life."

And if you`re still no convinced, Luke Akers as a filmmaker produced the
following kick-ass ad for a 17-year-old beater.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The best iconic monuments always seem to be those that
stand the test of time. The structures that weathered the years. Those
that stood through wars and depression and today still stand impressive.

2013 brings out a true embodiment of iconic motoring. The luxurious Maxima
GLE from Nissan. Seventeen years in monumental perfection. This time-
tested Maxima delivers an unprecedented sport sedan, fully loaded with an
engine, wheels, tires and an automatic transmission.

(END VIDEO CLIP)

HAYES: It`s an ad worth more than the car it is attempting to sell. To
our knowledge, as of showtime, the warrior land-ship-yacht is still
available.

Second awesomest things we saw on Gizmodo. With just eight shopping days
left of Christmas, "Click 3" always likes to give a special shout-out to
those holiday heroes who like to take their Christmas decorations to the
next level. Well, you`ve seen the houses with 100,000 lights on them.
Well, this year, they`ve all been outdone by this guy from Rated RR, who`s
built himself a Christmas tree in the desert made entirely of detonation
cord.

Isn`t that something, folks? What do you say we light this candle?

OK, that might have seemed like a lot of work for not much payoff until you
play the video back in super slow-mo.

According to the guys from Rated RR who built this crazy thing, the
detonation cord is flexible plastic tubing filled with material that
explodes at a rate of approximately four miles per second. Everyone loves
explosions for the holidays, but please, please, please, don`t try this at
home.

The third awesomest thing on the Internet today comes from the Web site
deadspin, where they have posted an anonymous tipster provided them with
the following voicemail message. There is very little context for the
sound you`re about to hear. All we know is that this woman, believed to be
some kind of recruiter, well, she didn`t properly hung up the phone and she
has an adorable conversation with her little care bear.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: This is a message for -- this is -- please give a
call back. You can reach me at -- again -- I look forward to speaking with
you.

Oh, cutie that you are. Because you are so precious. Come here. Come
here, my little monkey. My little bear. Oh, will you stop it? You`re
just crazy. I love my little beary-kins. You can stay here. You`re in
demand, my little boo-boo. You`re in demand my little beary-babe, you`re
in demand my little bear-bear, you`re so sweet, my little care bear.

(END VIDEO CLIP)

HAYES: You can find all the links for tonight`s "Click 3" on our Web site
allinchris.com.

(COMMERCIAL BREAK)

HAYES: The NSA, as we`ve all learned this year, has been gathering huge
amounts of information from our phones here in the United States. And
today, in a surprising turn, a federal judge in Washington, D.C., said that
was unconstitutional.

Judge Richard Leon ruled that the National Security Agency`s systemic
collection of Americans` phone records reflects a use of, quote, "almost
Orwellian technology," to violate the Constitution.

Leon, who was appointed by George W. Bush, used incredibly strong language
to condemn a program that he said would leave James Madison, quote,
"aghast."

"I cannot imagine a more indiscriminate and arbitrary invasion than this
systemic and high-tech collection and retention of personal data on
virtually every single citizen for purposes of quarrying and analyzing it
without prior judicial approval," Leon wrote. "Surely, such a program
infringes on that degree of privacy the founders enshrined in the Fourth
Amendment."

The decision has been stayed pending appeal, so the program will continue
but for now, but it marks a major turning point in the NSA drama. We spent
the past six months coming to terms with the fact that in the era of NSA
chief Keith Alexander, the goal of the U.S. intelligence apparatus has been
to "collect it all," as one former senior official put it.

The NSA isn`t just collecting information about our phone calls in bulk,
it`s been looking at our e-mails, it has access to nearly everything we do
on the Internet, there`s even spying inside of online multiplayer video
games. Indeed, there have been so many headlines exposing the complex Web
of NSA monitoring, we`ve become desensitized to each new revelation.

But now, now, the conversation is shifting from what the NSA has been doing
to what can be done to fix it, how our legal and political systems can rein
in what looks to the world like an out-of-control agency.

The fight for the future of the NSA kicked into high gear with today`s
landmark ruling. And if you don`t think the NSA knows it is in for the
fight of its life, you should watch the story about the agency that aired
last night on "60 Minutes" more than obliged.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: We need to help the American people understand what
we`re doing and why we`re doing. The fact is, we`re not collecting
everybody`s e-mail, we`re not collecting everybody`s phone things, we`re
not listening to that.

JOHN MILLER, CBS NEWS: There might be a little confusion among Americans
who read in the newspaper that the NSA has vacuumed up the records of the
telephone calls of every man, woman and child in the United States for a
period of years. That sounds like spying on Americans.

UNIDENTIFIED MALE: Right, and that`s wrong. That`s absolutely wrong.
There was nobody willfully or knowingly trying to break the law. The
probability that a terrorist attack will occur is going up, and this is
precisely the time that we should not step back from the tools that we`ve
given our analysts to detect these types of attacks.

(END VIDEO CLIP)

HAYES: All right, when we come back, we`re going to talk about that "60
Minutes" piece which has come in for a ton of criticism, as well as the
fact the NSA now finds itself now besieged from all sides.

(COMMERCIAL BREAK)

HAYES: Earlier in the show we asked you which modern-day government
policies and practices the constitution framers would freak out about. We
posted a ton of answers to our Facebook and Twitter pages including Leslie
from Facebook who said, "The Second Amendment, I think they would issue
with no one paying attention to the in a well-regulated militia part for
the right to bear arms. It doesn`t say anybody could have whatever kind of
gun they wanted any time anywhere. It says any well-regulated militia for
reasons guns need to be regulated." And Laura from Twitter jokes, "I think
they`d be pretty impressed with indoor plumbing."

(COMMERCIAL BREAK)

HAYES: We`re back, and joining me now is Congressman Steve Cohen, Democrat
from Tennessee, and Jameel Jaffer, ACLU deputy legal director, director of
the Center for Democracy, which houses the organization`s National Security
Project.

All right, that "60 Minutes," I watched people`s reaction in real time to
the "60 Minutes" episode, which I did not watch when it aired. I watched
it today. It was worse than I could have imagined in how one-sided it was,
and it was essentially a 30-minute video press release for the NSA.

JAMEEL JAFFER, ACLU: I had the same reaction. I thought it was -- it was
awful. That it was so credulous and essentially allowed the NSA to put out
a series of misrepresentations about its own activities and then to -- and
then to slander Edward Snowden as well without allowing him any response.
I thought it was pretty bad.

HAYES: There was a point at which they -- one of the people in the NSA
talks about Edward Snowden, alleges that he stole some answer key for a
test in the NSA, and I just had a thought. You know, when I was 22 or 23,
first writing as a freelance writer, someone makes a novel accusation about
someone like that, you have to go get a response.

I mean, you just can`t just print that. I mean, and this is like, you
know, little city council feuds our in Chicago.

JAFFER: Right.

HAYES: At 22 or 23. I couldn`t believe they just went to air and there
was nothing.

JAFFER: Well, and they let all the NSA officials spout all of these
misrepresentations about the programs, including statements that were
clearly inconsistent with information already in the public record.

HAYES: To me, to me, what it -- to me, a lot of what it signals is the NSA
has now decided they need to go on a PR offensive, because they recognize
that they are -- that things are -- change is coming, right? I mean, do
you feel that on Capitol Hill, that we`re turning a corner where there`s
going to be -- there`s got to be some kind of legislative response to this?

REP. STEVE COHEN (D), TENNESSEE: There`ll be legislative response.
Whether it`s going to be meaningful is hard to say. You`ve got to get it
through committee, and Speaker Boehner did a big turnaround in getting a
budget bill passed and telling some of the crazy right-wingers, you know,
back off, I`m the speaker, but that doesn`t mean he`s going to necessarily
stand up on the NSA issues, where most of the people that are concerned are
more liberal. And I think, you know, I like Mike Rogers a lot and I like
Dutch Ruppersberger a lot but I don`t know --

HAYES: Those are people on the Intelligence Committee.

COHEN: They`re the ranking member and the chairperson. And I don`t think
that they or Boehner are going to allow a vote to come up in the House.
The Amash-Conyers bill got a lot of votes, we talked about that. But they
kind of made sure that it didn`t pass. I think they had enough votes they
could keep. And the Senate never touched it.

Relief will probably come from the judiciary, as it often does in this
nation, and that`s probably why the Republicans were so angry about the
nuclear option, because it`s judges that make the difference in people`s
rights. That`s what happened in the `60s, that`s what`s happened
throughout our history, and so now we`re going to -- the judicial branch
will be the one that saves us.

HAYES: Well, and that -- that perfectly tees up today`s judicial decision
by a federal judge, who is not just a George W. Bush appointee, a longtime
Republican operative, essentially, worked on Republican committee staff on
the Hill, was doing stuff on sort of quashing Iran contra investigation.

I mean, he was a very controversial pick when he was picked, was seen by
Democrats as, you know, as a stalwart, you know, right-winger, and the
decision today is pretty remarkable.

JAFFER: It is, it is, but, you know, Republicans care about the Fourth
Amendment, too, right? There are 130 co-sponsors of the USA Freedom Act,
which is a bill that would reform a lot of these programs and --

(CROSSTALK)

HAYES: Including Representative Sensenbrenner, who of course was the co-
author on the Patriot Act.

JAFFER: That`s right, he wrote the provision that the government is
relying on to conduct this kind of surveillance, but today`s decision, I
think it`s true, that at the end of the day, we have to rely on judges, and
today`s decision I think is -- you know, is a great thing. I hope it`s the
first of many. There are a number of other cases pending, including one
that the ACLU brought here in New York, challenges to the same program or
to other NSA programs.

And it`s in some ways the most remarkable outcome of the Snowden
disclosures, is that we can finally have these cases go forward in court.
You can --

(CROSSTALK)

HAYES: How did it --

JAFFER: -- litigate him on the merits.

HAYES: How did the Senate`s disclosures change what could and could not be
litigated?

JAFFER: Well, before the Snowden disclosures, we were in court arguing
that these programs were unconstitutional, or that the law is
unconstitutional. And the government`s response was always you don`t have
standing because you can`t show that your plaintiffs were monitored, or you
can`t litigate this case because litigation would require the disclosure of
state secrets.

So there are all of these threshold doctrines, all of these hurdles that
litigants have to overcome in order to even argue about the merits, and we
couldn`t get to that point, but now we can.

HAYES: So there`s a legislative aspect to this. There`s Senator Ron Wyden
has been pushing for reform, legislative reform on the Senate side, there`s
some stuff coming up in the House.

COHEN: I have a bill in the House, too.

HAYES: You have a bill in the House as well. There`s also -- there`s
judicial, there`s also executive branch. The president has appointed this
panel, right, this outside panel that he`s asked for recommendations. The
panel said to urge NSA curbs. We`ve seen some reporting on it.

Are you expecting anything out of that panel? Are you expecting anything
meaningful initiated by the White House itself in response?

COHEN: I think the White House will. I think Barack Obama knows
politically he needs to. Probably he knows as a lawyer and a human being
that something needs to be done. On the other hand, he gets access to all
that material, and sometimes the presidency, just like the chairman and the
ranking members of the committees, kind of get taken over by the
establishment.

Maybe it`s because they hear the data.

HAYES: Right.

COHEN: And the information and they think we`ve got to do this for the
country, and maybe they`ve been snowed, Snowdened. I don`t know which.
But it happens. And I don`t know, you know, I just -- committee, it could
go to their committee, couldn`t go to the Goodlatte`s committee, my
committee judiciary, and I don`t think Chairman Goodlatte will give a
hearing either. So you`ve got a problem getting a hearing.

HAYES: I think what we saw today was this judicial decision, now that the
standing issue has been overcome, I think we`re going to see a lot more
decisions like this.

Congressman Steve Cohen and Jameel Jaffer from the ACLU, thank you so much.

JAFFER: Thank you.

HAYES: That is ALL IN for this evening. "THE RACHEL MADDOW SHOW" starts
right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC ANCHOR: Did your piece say "Game of Phones"?

HAYES: Yes, it did.

MADDOW: Well done.

HAYES: Thank you.

MADDOW: I see (INAUDIBLE) the title, my friend.

(LAUGHTER)

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

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