updated 6/26/2014 10:37:12 AM ET 2014-06-26T14:37:12

THE RACHEL MADDOW SHOW
June 25, 2014

Guest: Dalia Lithwick

RACHEL MADDOW, MSNBC HOST: Thank you at home for joining us this
hour.

In the year 1560, what other show starts that way? In the year 1560
in Scotland, the parliament there decided that Scotland needed a new
religion, they needed their own religion. They needed a specifically
Scottish version of Christianity.

And so, in 1560, the parliament of Scotland picked six guys who they
tasked with the job of writing basically a declaration of Scottish
religious independence, writing the tenets for the new church. And the
guys they assigned to do it were John Knox, John Winram, John Spottiswood,
John Willick (ph), John Douglass and John Row.

Noticed anything? Yes, they picked six guys all of whom were named
John, six of them. Very awkward. Not as awkward, however, as Mary, Queen
of Scots, refusing to agree to what the six Johns wrote, and to the new
plans for the new church. Mary, Queen of Scots, said no, but, luckily for
the six guys named John, in the 16 century, queens had a way of not staying
queen forever and ever. And so, once Mary, Queen of Scots, was gone, this
new document, this new confession of faith, written by the six guys who are
all named John, it was enacted into law, as one of the founding documents
of the new church of Scotland, and that is how Scotland in the 1500s got
its own national denomination of the Protestant faith. Behold the power of
schism.

It`s an excellent word, really, schism, and we usually the word
schism and think of that word in relation to religious matters. You know,
one religious sect splitting off from another in order to do their own
thing for whatever.

But schisms are not just for religious matters and they`re not just
ancient bloody history. The signs that a really interesting schism might
be breaking out right now in America surfaced last night after midnight
Eastern in the great state of Mississippi, in a really, really grumpy
ballroom in the great city of Hattiesburg, when all of a sudden the
Republican Party started getting talked about in the past tense.

(BEGIN VIDEO CLIP)

CHRIS MCDANIEL, DEFEATED IN MAS GOP SENATE RUNOFF: The party I
joined when I was 13 years old, was the party of a man, a former actor from
the state of California, named Ronald Reagan. That`s the party I joined.
That`s the party I`ve always been a part of.

It was a party of principle at one point. A party of courage at one
point. It was Reagan that said, we will be a party of bold colors, not
pastels.

And yet there are millions of people that feel like strangers in
their own party.

So much for bold colors. So much for principle. I guess they can
take some consolation in the fact that they did something tonight. By once
again compromising, once again reaching across the aisle, by once again
abandoning the conservative movement.

I would like to know which part of that strategy today our Republican
friends endorse.

(END VIDEO CLIP)

MADDOW: Our Republican friends. Not us, because these other people,
these Republicans. Well, they used to be a good party at one point, he
kept saying, at one point. But now, Tea Party Senate candidate Chris
McDaniel last night talking about the Republican Party in the past tense,
as he did not concede that he lost the Mississippi Senate runoff to
incumbent Republican Senator Thad Cochran. Mr. McDaniel went on to say
that there were irregularities in the election yesterday.

He did not admit that he lost and he finished last night by saying
not good bye, but sort of cryptically saying, we`ll see you soon.

Then, this afternoon, there was a follow up. Chris McDaniel put out
this statement to cure anyone of the misperception that the Republican
Party and the Tea Party were going to be making up anytime soon. The
statement says the election was "rife with irregularities." Quote,
"McDaniel called for scrutiny of the election`s irregularities and for a
thorough examination of the core principles of the Republican Party."

The statement then quotes Mr. McDaniel saying this, "The conservative
movement is alive in Mississippi. But it`s no wonder so many conservatives
don`t feel welcome in the Republican Party."

Then he says, "If our party and our conservative movement are to
coexist, it`s paramount that we ensure the sanctity of our own process is
upheld."

So, it`s all in the context of contesting the election result, but I
mean, this language here, right? If our conservative movement and our
Republican Party are to coexist, conservatives don`t feel welcome in the
Republican Party, the conservative movement is alive, but the Republican
Party needs its principles reexamined. I mean, maybe they can coexist.

Maybe they can`t coexist, especially since they`re not the same
thing, not any more. Schism.

And, you know, OK, maybe Chris McDaniel is just mad. Maybe this is
just an outbreak of sore loser-ness. It`s not like we haven`t seen that
before. But it is not just him.

This idea that the Republican Party is no longer a welcoming place
for conservatives and conservatives are opposed to it, not part of it, that
is kind of the tune or at least the tone of a lot of the reaction on the
political right to what happened in that election last night. And it
started on the national conservative media, even before the final results
were in last night.

(BEGIN VIDEO CLIP)

SEAN HANNITY, FOX NEWS: They`re not being inspired by Republicans in
Washington. You went as far earlier this week and late last week to
suggest that if the Republican Party doesn`t get their act together, you
would consider moving to a third party. Explain.

SARAH PALIN (R), FORMER ALASKA GOVERNOR: Well, if Republicans are
going to act like Democrats, what`s the use in getting all gung-ho about
getting more Republicans in there. We`re going to be a bankrupt,
fundamentally transformed country unless those who know what they`re doing,
and aren`t going along just to get along with those in power, being today
the Democrats, that does no good. So, yes, if Republicans aren`t going to
stand strong on the planks in our platform, it does no good to get all
enthused about them anymore.

(END VIDEO CLIP)

MADDOW: Does no good to get all enthused about them anymore, those
Republicans who are so terrible.

And I should say that Governor Palin has made noises in the past
about leaving the Republican Party. A couple weeks ago, she said it was
the issue of immigration, that she said was, quote, "just about driving me
to renounce my Republican ties." Last year on the FOX News Channel, she
also said she would consider joining something called the Freedom Party.

Bad lighting here but check it out.

(BEGIN VIDEO CLIP)

PALIN: The name of that party, the Freedom Party. And if the GOP
continues to back away from the planks in our platform, from the principles
that built this party of Lincoln and of Reagan, then, yes, more and more of
us are going to start saying, what`s wrong with being independent? I think
there will be a lot of us who start saying, GOP, if you abandon us, what --
we have nowhere else to go, except to become more independent.

(END VIDEO CLIP)

MADDOW: A declaration of Tea Party independents, conservative
independents, they will leave the Republican Party and form, I don`t know,
maybe the Freedom Party. Something else, some third entity.

This has been sort of a hobbyist`s empty threat rattling around on
the political right now and again for the past few years, but it`s spiking
right now.

After what just happened in Mississippi, this is now what they are
talking about it -- this is what they are talking about on the right. And
these are the terms they`re talking about it in. Mark Levin, the
conservative radio host, said this on Twitter, "D.C. Republican Party may
have finally angered conservatives beyond repair."

Over at "RedState", the editor Erick Erickson there says, quote, "I
continue to oppose a third party," but he says, "The Mississippi race does
crystallize for me the desires of many to start a third party." He says,
"The problem for those who call themselves Republicans is that it is harder
and harder to say exactly what a Republican is these days. I`m just not
sure what the Republican Party really stands for any more. This becomes a
longer term problem for the Republican Party. Its core activists hate its
leadership more and more.

It`s a system that cannot perpetuate itself. Grassroots activists
feel further and further removed from the Republican Party."

And then he says this, "When the GOP inevitably caves on repealing
Obamacare, we may just see an irreparable split." "And even worse," he
says, "if party leaders and party based voters cannot reconcile themselves
to a common candidate in 2016, God help us."

Conservative newspaper, "The Washington Times" today circulated an e-
mail blast that went out overnight from the head of a group that`s called
the Tea Party Nation. They included this, when the Republican
establishment acts like Democrats, what is the point of supporting them.
The answer is, we don`t have to. The Republican establishment thinks they
fought back an insurrection in Mississippi from conservatives, and now, we
will fall in line in November and support a RINO, a Republican in name
only. The response to that by saying, never!

It`s not just these national voices. Up close to this fight in
Mississippi, in Mississippi specifically, Tea Party leaders there telling
reporters that the Republican Party in Mississippi is now, quote, "badly
hurt" by this fight. The chairman of the South Mississippi Tea Party tells
"Politico", quote, "It makes you want to quit being involved. I never
believed a third party would work, but maybe that`s the only way to get rid
of the corruption of Washington."

Schism. It`s not just for breakaway forms of Protestantism any more.
It has been an amazing and illuminating thing to watch the establishment
versus Tea Party fight over these past few years. But today, the side that
sees itself as anti-establishment sort of appears to be giving up on the
Republican Party. Maybe they will leave it. Maybe they will start their
own.

(BEGIN AUDIO CLIP)

GLENN BECK, RADIO HOST: Washington, D.C., is not a place of
representative government anymore. It is a place of aristocracy. That`s
all it is.

George Washington warned us, this is not a Tea Party, this is George
Washington, and if you would like to go down and throw George Washington
under the bus, go ahead. But I will never do it. George Washington warned
us: the two-party system will be the death of us.

(END AUDIO CLIP)

MADDOW: Now, is anybody actually throwing George Washington under
the bus?

But if so, right wing talk radio hosts will refuse to go along with
that quietly, sheeple. It`s amazing. It`s amazing!

So, now, you know, the national reaction to Chris McDaniel losing
this race against Thad Cochran, it has been for Tea Party supporters in
their biggest political celebrity voices, to start talking about leaving
the Republican Party. That has been the reaction on the right today. It`s
been amazing to look at the right wing media today.

Now, in the near term, Mississippi Tea Partiers are definitely
talking about splitting off from the Republican Party. They clearly feel
that the divorce has already happened. In the very near term, they`re
talking about mounting a legal challenge against the results of last
night`s Republican Senate runoff.

And so, that may be next, there may be a lawsuit here. I mean, one
of the conservative websites today, this one, Breitbart, they ran this long
article today, with tons of Mississippi specific advice about how exactly
Chris McDaniel could mount a legal challenge to the results of this race,
which specific counties he should start his challenge in, how he should
challenge the affidavit ballots, how he can request ballot boxes at
precincts statewide and then inspect the contents, and where he ought to
start and what the legal precedents are for finding voters, finding vote
fraud that way and voting irregularities and how we can get the election
forced out basically in the courts. The election would have to be redone.

It`s essentially a long detailed road map, all this really, really
specific advice, about how exactly Chris McDaniel should legally challenge
the results of last night`s election.

It turns the Mississippi politics expert source for all of that
advice today is the chairman of the Democratic Party in Mississippi. Oh,
who, of course, would love for the Tea Party and the Republicans to keep
this fight going.

Hey, here`s advice on how to do it. Do you need help bringing your
lawsuit? We could help. Do you need lawyers?

Democrats and liberals obviously take a lot of joy in watching
conservatives and Republicans destroy each other. I mean, in political
terms, this is the fun stuff, right? If your opponent is in the streets
setting himself on fire, the most important thing for you to do is nothing
that might put out the fire.

But in this case, with the tactics that the Republicans used to beat
the Tea Party last night, and with the fact that it worked and the Tea
Party got beat, and that has caused national gnashing of teeth and upset,
not just in that state, but really across the country and in a very out-
loud way on the right, is the Tea Party at a point where they are shifting
for wanting to take over the Republican Party to instead wanting to oppose
it? Schism.

Joining us now is Steve Kornacki, host of "UP WITH STEVE KORNACKI"
here on MSNBC.

Steve, thank you for being here.

STEVE KORNACKI, UP: Thanks for having me.

MADDOW: So, where is the inflection point between let`s take over
this lousy party and let`s get out of this lousy party. And did last night
get us any closer to that point?

KORNACKI: I don`t -- my read on it, it`s not heading in the
direction of a third party and separate parties emerging from this. But I
think it`s a significant moment last night, I think this is part of the
long story, the sort of Tea Party-Republican split, it really began in
2009. It has its roots a little further back. I think it`s going to play
out a lot longer than 2014, 2016. It`s going to take a while to play out.

But what I think last night is going to be, it`s going to be sort of
a symbolic rallying cry you`re going to hear from Tea Party conservatives
going forward, they`re going to call back to what happened in Mississippi
in 2014. The ultimate establishment betrayal.

The establishment, do you know how much they don`t like us, how
little they trust us? So much, so badly that they teamed up with
Democrats, they got Democrats to come into our party, our primary to beat
us, that`s how little they trust us.

It reminds me that the historical comparison -- I don`t mean to be
kind of grandiose with this, but the historical comparison that I keep
thinking of watching this reaction today is 1952. IN 1952, there was a
pivotal moment in the rise for the modern conservative movement, because
what happened then you got the Republican convention in Chicago, it was
Dwight Eisenhower against Mr. Conservative, Bob Taft from Ohio, Bob Taft
thought he had the votes, and the conservatives thought they had the votes.
And the Eisenhower forces, the big sort of money interest from the east,
pulled a very tricky maneuver. They called it the fair play of procedure
at the convention, and they got the Taft delegates thrown out.

And that`s how Eisenhower won the nomination and that`s how he became
president. And you know what happened? Over the next decade, this
conservative movement calling back to the betrayal of 1952, and that`s the
conservative movement, that Barry Goldwater rode in the Republican Party at
least in 1964. The Goldwater movement had its roots in 1952, and there
were times between 1952 and 1964 where you had Goldwater -- people around
Barry Goldwater, who thought the answers to the third party. There were
people around him who talked about starting a third party, who had contact,
you know, sort of northern conservatives, southern segregationist, we can
united these two forces, this can be the new conservative future.

So, that talk was very much there. But ultimately what it was, what
happened in 1952 was grist for the rise of the Goldwater movement in `64.
I think what happened in Mississippi is grist for the Tea Party movement as
it continues to try to within the Republican Party.

MADDOW: It`s sort of a galvanizing thing, or it`s a different
metaphor, having a sort of bloody shirt to waive at that point can be
something that would move your movement to a place --

KORNACKI: Right. Never forget what they did to us here.

MADDOW: You know, I wanted to quote the Democratic Party -- the
Democratic chairman from Mississippi in his very detailed and very specific
advice about how Chris McDaniel should fight this legal fight, one, because
I think it`s funny that the Democrats obviously wanted to give this
disingenuous advice about how much they feel for Chris McDaniel. But also,
I think he`s sort of also being an astute observer about how this works.

And his comment about this today was that in 30 years, he said this
will -- what has happened last night in Mississippi will be the sort of
thing that every political operative in Mississippi, he was old enough to
have been alive when this happened, will define themselves on whether they
were a Cochran man or whether they were a McDaniel man. And he`s
essentially saying this will change the party forever.

The question, though, is, if he`s right, and if you can extrapolate
from this, like you`re saying from 1952, what is the thing that happens in
the Tea Party, in the conservative movement that wouldn`t have happened
without this betrayal? How does it change them?

KORNACKI: So, I`m looking at the near term future, I`m looking at
Tennessee and Kansas. These are the two live Senate primaries.

MADDOW: Lamar Alexander, Jerry Moran, that`s right.

KORNACKI: Pat Roberts.

MADDOW: Pat Roberts, that`s right.

KORNACKI: And they hadn`t gotten much traction yet. Here`s the
thing, what the Cochran forces pulled off in Mississippi last night, is
something that in many ways could only happen in Mississippi, open primary.
Hey, there`s no party registration in Mississippi. Basically, anybody can
come in and vote, huge, statistically the largest proportionally African-
American population of any state in the country. All of these voters who
are generally on the sideline in the Republican primaries, but the Cochran
people are able to sort of tap into, galvanize, get them to vote.

Where else in the country can a Republican who`s under attack from
the Tea Party, have that at his disposal to go out and beat the Tea Party?
So, take a close primary in another state, another conservative state and
have the grassroots all upset, that hey, look what they just did to us in
Mississippi. They think they pulled a fast one on us. We`re going to show
them here. Well, guess what they can`t do in 49 and other 50 states
basically what they just did in Mississippi?

So, I think -- I really think we can say, yeah, the establishment
won, they really pulled a fast one on the Tea Party last night. But I
think the joke could be on the establishment here, because the Tea Party is
going to be super fired up about this. And again, what they did in
Mississippi, they can`t do anywhere else, the establishment.

MADDOW: But if they are able to do it in Tennessee, or in Kansas, or
anywhere else, if they`re able to do it in the same way they`re able to do
it against Eric Cantor in Virginia, that takes some of the wind out of
their sails, because in terms of splitting from the Republican Party,
because they think that they can`t take it over, it`s when they feel like
they`re fighting battles against the establishment and losing, that they
declare war on the establishment, and that`s when we get the kind of noise
that we got today, which was remarkable.

KORNACKI: Right, and they lose by 5,000 votes. It`s not by 50
points, they can win these things, you know?

MADDOW: Yes, amazing.

Steve Kornacki, the host of "UP WITH CHRIS KORNACKI", I can tell you
that you were up all night clicking refresh on the returns like this like I
was.

Thanks, Steve. Thanks for being here.

KORNACKI: Sure.

MADDOW: All right. Lots still to come tonight, including very
important news about what you cannot buy at 7-Eleven. And if you find you
can buy it there, you should not do so. It`s very important for your
health.

Also, a feature story tonight, an exclusive on one Army lawyer who`s
been forced into making a decision that you probably will not believe and
that you will not hear about anywhere else.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: In April on the CBS Sunday morning news show that`s called
"Face the Nation", the archbishop of New York had the following advice for
the ladies of America who might be thinking about or worrying about their
contraception needs. The archbishop suggested that morning that any
American ladies worried about access to quality contraception, they should
consider their local convenience store right between the blue raspberry
flavor Slurpee machine and the oily spinning machine rod that turn the same
hot dogs all day and night.

Ladies of America, you might look there for prescription birth
control pills or get your IUD implanted, your intrauterine device implanted
in your uterus. Consider the options at 7-Eleven.

(BEGIN VIDEO CLIP)

TIMOTHY DOLAN, ARCHBISHOP OF NEW YORK: Is the ability to buy
contraceptives that is now -- they are now widely available -- my Lord, all
you have to do is walk into a 7-Eleven or any shop on any street in America
and have access to them -- is that right to access those and have them paid
for? Is that such a towering good that it would suffocate the rights of
conscience? I don`t think so. But I hope the Supreme Court agrees.

(END VIDEO CLIP)

MADDOW: Cardinal Timothy Dolan of New York explaining on CBS in
April that 7-Eleven is really all we need to take care of any contraception
need in this country, isn`t it? Walk into any store in America, they`ll
put in your IUD for you, just ask nicely, also wash your hands.

The Supreme Court case the archbishop was talking about there is
still pending. Today, the Supreme Court issued a blockbuster 9-0 unanimous
ruling on cell phone searches, saying the police can`t search your cell
phone or your personal digital devices without getting a warrant. That was
a big deal.

They also ruled on a big deal technology case about a device called
Aereo. That`s expected to have big consequences for the TV business. I
should say that NBC was one of the networks involved in that case.

But the Supreme Court`s current term ends on Monday, ends next week.
So, between now and Monday, there`s going to be a whole bunch of really big
deal rulings that are still due to come out that we`ve been waiting and
expecting every day now. We`re still expecting rulings on recess
appointments, what power the president has to appoint people to his
administration when Congress is on recess. We`re expecting rulings on
buffer zones, effectively protest free areas outside of abortion clinics.
There`s a big ruling to come down on union rights for people who work in
the public sector.

But there`s also this big anti-birth control case, the one that
Cardinal Dolan was so excited about. That case has been championed by
conservative activists and elected Republicans, and it`s basically about
whether or not your boss can overrule about health insurance. Or
conceivably about anything in this country, whether your boss can overrule
the law on the basis of his or her own religious beliefs.

So, the owners of arts and crafts store chain called the Hobby Lobby,
they brought this lawsuit because they are against contraception. And they
want to basically impose that belief on their employees, by blocking their
employees health insurance plans from covering stuff like birth control
pills or IUDs.

New York`s archbishop explaining that he thought the practical
consequences of that can be sorted at 7-Eleven counter where they`ll also
sell you cigarettes and bacon, egg, cheese and potato taquitos.

That led the head of Planned Parenthood Action Fund to say that
that`s sort of an expression of faith in convenience stores as a health
care provider, quote, "Demonstrates once again why we need to leave
decisions about birth control between a woman and her doctor not a boss at
an arts and crafts store."

This is going to be a big and potentially really far reaching case.
We`re basically expecting a ruling on this one tomorrow, maybe Monday.
Monday is the last day of the term. Once the ruling happens, it`s going to
be fascinating to see how the political world reacts because, you know,
this is a conservative court. I`m no expert, but I would guess that the
odds are probably on the side of the arts and crafts store bosses who do
not want their employees use birth control.

But if the ruling goes that way, if it affectively kills health
insurance coverage for birth control in this country, some immediate
questions arise in Washington and I don`t know what the answer is to any of
them. Will Democrats take political action in Congress to try and bring
that insurance regulation back if the Supremes get rid of it? Will
Democrat try to save access to contraception through some sort of action in
Congress? If so, are Republicans going to fight against that?

I mean, the Beltway never talks about this. But opposition to not
just abortion but to birth control is now a mainstream elected Republican
position. A Republican candidate being opposed to birth control is a
Senate race issue for this fall in ArKansas, in Montana, in Colorado, in
North Carolina.

In Michigan right now, Michigan is such a mess. In Michigan right
now, they are towing around this terrifying publicity stunt. Look at that
-- a school bus crushed by a piece of falling concrete from a decrepit
bridge. They`re towing that thing around the state as a publicity stunt in
Michigan right now to dramatize the fact that the Michigan legislature just
left town and finished their session without passing anything to repair
Michigan`s terrible roads and bridges.

Michigan Republicans in the legislature apparently think the state is
too broke to do anything about some of the most falling down terrible roads
and freeways and dangerous bridges in the country.

But amid that, the Detroit news this week caught that the state can`t
really be all that broke, since they did find a way to set aside $800,000
for a no bid contract, $800,000 of taxpayer money to go to an activist
group that promotes childbirth in Michigan, they promote childbirth not
just by opposing abortion, but by opposing access to birth control pills.

Michigan Republicans are spending hundreds of thousands of dollars of
taxpayer money on an activist group that opposes the use of birth control
pills, because that`s what Michigan needs. Not just in the Deep South, not
just on the far fringes of conservative politics. But in totally
mainstream Republican politics now, being against contraception is a
mainstream elective Republican position, all across the country.

And against that astonishing backdrop, the big anti-contraception
Hobby Lobby case is due to come down from the Supreme Court in three, two,
one --

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TIMOTHY DOLAN, ARCHBISHOP OF NEW YORK: Is the ability to buy
contraceptives that is now -- they are now widely available -- my Lord, all
you have to do is walk into a 7-Eleven or any shop on any street in America
and have access to them -- is that right to access those and have them paid
for? Is that such a towering good that it would suffocate the rights of
conscience? I don`t think so. But I hope the Supreme Court agrees.

(END VIDEO CLIP)

MADDOW: New York`s archbishop, Cardinal Timothy Dolan, explaining
his thoughts on the practical consequences of the Hobby Lobby Supreme Court
case that we are awaiting from the Supreme Court right now. At a time when
opposition to birth control is becoming mainstream national Republican
politics.

If anyone at a 7-Eleven or at a shop on any street in America offers
you birth control, offers to put in your IUD or something, maybe don`t call
the archbishop for advice.

Joining us now is Dalia Lithwick, who would also appreciate you not
calling her for advice on these matters. She`s senior editor at Slate.com,
and she helps us understand the Supreme Court.

Dalia, thank you so much for being here.

DALIA LITHWICK, SLATE.COM: Thank you, Rachel, for having me.

MADDOW: I will not say taquitos one more time in this show tonight.

There are plenty of theories out there, people predicting how this
court`s going to decide the case. What`s your expert view on it? What do
you think is going to happen?

LITHWICK: I feel like, if you had a dollar for every time I said
this, Rachel. But, you know, all eyes are on Justice Anthony Kennedy. I
think it was very clear after oral argument that the women on the court
were just wringing their hands saying, oh, my God, really, contraception?
We`re not arguing about abortion, we`re arguing about this? Didn`t we
settle this in the `60s?

I think Justice Breyer is aligned with them, I think the conservative
wing of the court didn`t really have much solicitude for the idea that this
was just about contraception. I think they really did feel like the Green
family, you know, had an inherent conscience right that was being violated.

So, it really comes down to what Justice Kennedy thinks. He was
tough to read, Rachel. You know, on the one hand, he was the one who said
oh, my God, if the Green family can be forced to provide contraception, can
they be forced to provide abortion? And all the progressives are like, ah.
And at the same time he turned around and said, what about the fact that
these women are third parties, what about their religious faith which
doesn`t map on to the Green family? And don`t they have a right here too?

So, he seemed to be aware, I think at both extremes that this could,
as you said be a very broad ruling with huge ripple effects. But you know,
in light of how he decided the legislative prayer case earlier this year,
the town of Greece case with huge regard for the faith of believers and
sort of subordinating the objections of others, it`s tempting to say he may
vote with the conservative wing this time.

MADDOW: If that happens. And I realize the way that happens could
happen in lots of different ways. The ruling could be narrowly construed,
as they can make it, or it could be quite broad.

But talking specifically about the contraception part of it, I do
know that some Democrats in Congress today were making noise that they
would try to legislatively respond in some way, specifically on that issue
of women having access to contraception through their health insurance
plans. Do you see a way that there could be a legislative fix, or some
sort of constructive legislative response in that kind of a ruling?

LITHWICK: I have heard an awful lot of folks say, look, ultimately
this is about a statutory case. You know, this is about the Religious
Freedom Restoration Act. This isn`t a constitutional tweak, this is a
statutory tweak. And so, that does, I think invite Congress to come back
in and respond to the Supreme Court.

I think what you said initially is really right, though, the breadth
of this will drive what happens after. There`s a decent possibility that
the court tries to go a little bit small on this, and limit it do closely
held family corporations like the Green family. In which case I think that
triggers other remedies, but it`s so much I think, Rachel, is going to
depend on how the court gets where they`re going before we can really talk
about how we could repair it.

MADDOW: Am I also jumping the gun to ask whether or not this might -
- this could conceivably have ramifications for overall, the implementation
of the Affordable Care Act. If this is about regulation that says health
insurance has to cover contraception without a co-pay, and if that`s struck
down, in any of the myriad grounds or any myriad ways they might try to do
that, are we possibly looking at a way of sort of undoing the
applicability, the enforceability of Obamacare?

LITHWICK: Well, we`re certainly not -- I mean, the contraception
mandate itself is not in question. I mean, that wasn`t part of the appeal.

But you`re certainly right to say, if we`re going to give every
religious business owner a way to end run the mandate, then, certainly, I
think it opens the floodgates for anyone to challenge not just this
provision of Obamacare, but really, you know, any neutral law that they
don`t like. And so, I think that the concern all along has been, not just,
you know, the implications for the contraception mandate, but I think the
implications for all sorts of people who say, I thought I was protected by
basic civil rights law, if my boss is a Jehovah`s Witness or my boss is a
scientologist, or my boss believes in Sharia law, is he or she going to be
able to sort of impose those religious views in ways that don`t just
violate my sense of who I am in this country, but violate other legal
mandates and protections I thought I had?

I think that`s the real concern here, and I think in fairness the
court was aware of that when this case was argued, that it really doesn`t
just unsettle the narrow question of the contraception mandate -- I think
it unsettles an awful lot of presumptions we have about the law.

MADDOW: And the extent of -- the extent to which we can apply our
own concerns and restrictions and fears to people around us without the law
interfering with that.

Yes, fascinating stuff. Dahlia Lithwick, senior editor for "Slate",
I don`t know when this is going to happen, but I hope you`ll come back and
help us understand it when it does. Thanks.

LITHWICK: Thank you.

MADDOW: Appreciate it.

All right. Tonight, we have some exclusive material coming up. A
U.S. military officer effectively being forced out of the service, forced
out of the military for taking what appears to be an ethical, professional
stand, what actually appears to be an unavoidably ethical professional
stand. It`s a really strange story and a sort of disturbing one. And
that`s coming up.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: In the summer of 2012, the Republican Party was feeling good
about their presidential prospects. They really thought they had a chance
of making President Obama a one-term president, and they made a really
aggressive choice that year for the site of their national convention.
They picked Florida, Tampa, Florida.

Yes, Tampa is best known as the death metal capital of America. But
Tampa is also a major city in a major swing state, a pure tossup state with
the diverse voting population, where any edge of any county could make the
difference in the whole national election.

Here was a chance for a week long 3-D campaign ad in the middle of a
critical background. Offense, not playing it safe. They rolled out the
biggest Republican names in the country. They railed against President
Obama. They put up that weird glitchy debt clock thing nobody understood.

It was all going well enough, until they made a miscalculation.

(BEGIN VIDEO CLIP)

CLINT EASTWOOD, ACTOR: What? What do you want me to tell Romney? I
can`t tell him that, to do that to himself. You`re crazy. You`re
absolutely crazy.

(END VIDEO CLIP)

MADDOW: In the summer of 2012, the Republican Party was playing
offense and then they fumbled into an empty chair, and they not only lost
Florida, they specifically lost Tampa. And, of course, they lost a
national election, and right now, they`re taking a second swing at it.

What do you think they`ve taken as their lessons learned for this
time around? That story is next.

(COMMERCIAL BREAK)

MADDOW: During the 2012 election, Republicans chose to hold their
convention in Tampa, Florida, where they voted Mitt Romney to become the
Republican candidate for president. That November, Republicans lost
Florida, they even lost Tampa.

In 2008, the Republican convention was held in St. Paul, Minnesota.
That November, Republicans lost Minnesota.

In 2004, Republicans held their convention in New York, New York,
that November, Republicans lost New York.

In 2000, Republicans held their convention in Philadelphia,
Pennsylvania. That November, the Republicans lost Pennsylvania.

Are you sensing a pattern here yet?

In 1996, Republicans held their convention in San Diego, California.
That November, they obviously lost California.

The last time a Republican candidate for president actually won the
state in which Republicans held their convention was 1992. Republicans
held their convention that year at the Astrodome in Houston, Texas. And
President George H.W. Bush did win Texas. Then, of course, he went on to
lose the election.

Republicans have a terrible track record in the last 20 years. They
have the opposite of a personal record, they have shot the moon when it
comes to actually winning in the place where they hold their convention.
It`s amazing, every four years they do the same thing.

And you would think they would be self-conscious about that. But
this is the list that they have reportedly been considering for their next
convention, for their next go around.

If the Republicans are looking to break the streak here, obviously
Denver should be out, because the Republicans keep losing Colorado, Las
Vegas should be out, because they`ve been losing Nevada. Ohio should
probably be out, because even though I always think they think they`re
going to win Ohio, they have been losing Ohio.

If Republicans want to break the streak, if they actually want to
have their big party somewhere, they could conceivably win for once, the
only places on their list they should have been considering are Dallas,
Texas, and Kansas City. Kansas in Missouri, of course, both have Kansas
City. Those two states actually joined forces to push the RNC to consider
Kansas City.

And that could conceivably make sense. Missouri and Kansas are
reliably red states, Kansas, of course, is Koch brothers` territory now, so
they could pick Kansas City. That might work.

What`s the matter with Kansas City? Why didn`t they pick there? I
don`t know, but they didn`t. They picked Dallas, or Cleveland.

Cleveland inexplicably is apparently still in the mix for them. So
whether or not Republicans are going to break their streak in 2016, their
generation-long losing streak, losing where they have their big party.

In 2016, it`s either going to be Dallas or it`s going to be
Cleveland, which makes no sense for them. That would help them keep their
streak going.

That`s the announcement they made today. It`s either Dallas, makes
sense, or Cleveland, makes no sense. But they said they`re going to make
their final decision on this matter by the end of the summer.

Watch this space.

(COMMERCIAL BREAK)

MADDOW: Say you are a lawyer, and you are representing a client who
is accused of murder. But it`s not just any old murder case, it is a
capital murder case. That means that your client, if he`s convicted, could
be facing the death penalty.

Now, let`s say midway through your work on this criminal case, your
boss decides to pull you off of it. Your boss says actually we have
something else for you to work on, you can no longer work on the defense of
your client. What do you do?

What is your ethical responsibility to your client? What`s your
ethical responsibility as a lawyer? Do you follow your boss` orders and
walk away from the work you`ve done in this defense? Thus increasing the
chances that your client will die because of you leaving? Do you leave
because your boss asks you to or do you tell your boss no and do whatever
you can to try to follow the case through?

Now, imagine that your client is this guy. This, of course, is
Khalid Sheikh Mohammed, the self-proclaimed mastermind of 9/11 attacks. He
was charged with 2,976 individual counts of murder.

And that exact situation, that predicament I just described is what
his U.S. military lawyer is now facing. U.S. Army Major Jayson Wright is a
military lawyer who`s been assigned to represent accused terrorist Khalid
Sheikh Mohammed, because in the U.S. justice system, every defendant no
matter who he is, has the right for a defense.

Major Wright was assigned by the military to this case. He`s
represented Khalid Sheikh Mohammed for three years now, but he`s been told
by the U.S. Army that he can no longer serve on the defense. He needs to
drop out of the case and instead return home to the U.S. to attend a year-
long graduate course that`s required of all Army JAG lawyers who are at his
level.

What would you do? What`s your ethical and professional
responsibility to a client whose defense you have been building for three
years? That was the question facing Major Wright. Watch this.

(BEGIN VIDEO CLIP)

MAJ. JASON WRIGHT, U.S. ARMY JAG DEFENSE ATTY: Under army
regulation, when you`re given orders to attend a course of instruction, as
an officer, you have 30 days to decide what to do. You can decide to
accept the orders and proceed as directed, or you can decide to reject the
orders.

Well, Congress asked me to do a job. They asked me to represent
Guantanamo Bay detainees. I was appointed by the chief defense counsel to
represent Mr. Mohammed in this capital case, to represent and see it to its
conclusion.

So, really, I have two choices. I could either voluntarily attend
the graduate course or I could resign.

(END VIDEO CLIP)

MADDOW: NBC News producer Shawna Thomas traveled to Guantanamo last
week and she spoke with Major Jason Wright, who has been facing this almost
impossible dilemma. And he was assigned by the U.S. government to
represent Khalid Sheikh Mohammed, the U.S. has a very rich and proud legal
history of providing an honest defense to even the most unsavory
defendants. Major Wright has been dutifully providing that defense. But
now the U.S. government, which is not only his employer but the side that
he`s up against in this case, they are trying to pull him off the case
midstream.

(BEGIN VIDEO CLIP)

WRIGHT: Whenever someone takes an obligation to represent a client,
especially in a capital case, you have to see it through. When Congress
envisioned, when they passed the Military Commissions Act, they told the
military defense council, you have a duty to do and your duty is to
zealously defend your client.

Well, when you take that obligation on, you don`t take it on without
seeing it to its conclusion. And so, having been on the case for several
years at that point, I have a legal and ethical duty to see the case
through its conclusion. Now, this is true irrespective of the 9/11 case,
where I`m representing Private John Smith in a court martial. That was a
death penalty case. I would have the same obligation to him as well to see
the case to conclusion.

This is a scenario that law students would face in a professional
responsibility ethics class in law school. What do you do when faced with
a conflict of interest, do I choose to forego the interest of my client or
do I choose to fulfill the interest of another organization or entity? So,
I was faced with an impossible conflicts scenario.

(END VIDEO CLIP)

MADDOW: When the Army informed Major Wright earlier this year that
he needed to leave Guantanamo, leave his client, go back to the States for
mandatory graduate work, sorry about that case you`ve been working on, he
asked the Army for a deferral for a year so he can continue is work in this
case. The Army had granted him that sort of deferral once before. But this
time they said no.

And so, Major Wright faces this dilemma, accept the orders and
abandon the client that he`s duty bound to serve, or quit. What would you
do if it was your choice?

(BEGIN VIDEO CLIP)

WRIGHT: Twenty-six of March of 2014, I submitted my resignation
paperwork. One of the reasons I also chose to resign was that it allowed
me to continue to represent my capitally charged client a little bit
longer.

So, if I also were to accept the orders and go to the graduate
course, effectively I would be off of the case in June, due to all the
administrative requirements associated with moving and going to the course.
Whereas by resigning, I`m able to stay in the military for an additional
six months.

As of 26 august, 2014, I`m not only off of Mr. Mohammed`s defense
team, but I`m also kicked out of the Army.

(END VIDEO CLIP)

MADDOW: Major Jason Wright quit. He resigned from the U.S. Army in
order to stay on this case just to you a few months longer, believing that
was his ethical responsibility to do so. He decided to quit, he decided to
leave the Army after nearly a decade of service. Major Wright`s last
appearance in court as a defense attorney for Khalid Sheikh Mohammed was
last week. He says he will continue to work on the case for another few
weeks and then a new military attorney said to be talking his place,
although the military as of yet has not appointed anyone.

This is just a remarkable story, not only for what it says about the
legal challenges of trying to prosecute these prisoners we`ve been holding
in some cases for more than a decade now, in a military tribunal system
that we invented just for this purpose, but also for what it says about the
dilemmas, the ethical and professional and legal dilemmas that we are
putting the lawyers through, the lawyers we have tasked as a country
representing these defendants. Amazing story and amazing sacrifice.

Now it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL." Thanks
for being with us tonight.

Good evening, Lawrence.


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BE UPDATED.
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