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All In With Chris Hayes, Thursday, November 13th, 2014

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Show: ALL IN with CHRIS HAYES
Date: November 13, 2014

Guest: Michael Shear, Tim Huelskamp, Luis Gutierrez, Michael Schmidt,
Anthony Scaramucci, Liz Macdonald, Tracy Byrnes, Seema Iyer


(BEGIN VIDEOTAPE)

CHRIS HAYES, MSNBC HOST (voice-over): Tonight on ALL IN.

Breaking news from the "New York Times", the president will go big on
immigration. Up to 5 million immigrants would be saved from deportation.
Republicans are promising an explosion on the Hill.

SEN. MITCH MCCONNELL (R), KENTUCKY: The president has been told over
and over and over again and we`re telling him again today, don`t do this.

HAYES: Plus, new details on the cascade of mistakes made by the
Secret Service that allowed a man to scale the fence and run into the White
House in September.

Then, the Ferguson grand jury finally forensic expert.

UNIDENTIFIED MALE: We think there`s enough probable cause.

HAYES: Elizabeth Warren is now officially a leader of the Democrats.

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: We have to make this
government work.

HAYES: And the host of "The Daily Show" gets downright Rumsfeldian.

JON STEWART, THE DAILY SHOW: I didn`t know what I didn`t know.

HAYES: Tonight, my not exactly exclusive interview with John Stewart.

STEWART: You are no mistaken.

HAYES: ALL IN starts right now.

(END VIDEOTAPE)

HAYES: Good evening from New York. I`m Chris Hayes.

There are more than 11 million undocumented immigrants in the United
States. And it appears that for as many as 5 million of them, life is
about to change.

Today, a bomb shell report in "The New York Times" sourced to
administration officials says the president will soon take executive action
to overhaul the nation`s immigration enforcement system, protecting up to 5
million undocumented immigrants on the threat of deportation and providing
many with work permits.

Administration officials told "The Times" the announcement could come
this week and they vowed it will be no later than the end of the year, just
as the president promised shortly after the midterms when he said he would
not wait to act.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Before the end of the
year, we`re going to take whatever lawful actions that I can take that I
believe will improve the functioning of our immigration system.

(END VIDEO CLIP)

HAYES: A promise to protect as many as 5 million people from
deportation, more than what even many advocates for undocumented immigrants
were hoping is the latest in a series of bold post-midterm moves by the
president on net neutrality, climate change and now, immigration that has
the Republican Party, which was gloating after its electoral victory just
one week ago seemingly knocked back on its heels.

(BEGIN VIDEO CLIP)

MCCONNELL: I maybe naively hoped that the president would look at
results to decide to come to this political center and do some business
with us. I still hope he does at some point. But the early signs are not
good.

(END VIDEO CLIP)

HAYES: Immigration action is described by administration officials to
"The Times" as still being finalized and it could, of course, change. But,
as of now, it would allow many parents of children who are American
citizens or illegal residents to obtain legal work documents, and no longer
fear of being deported and separated from their family`s children. That
could affect as many as 3.3 million people who have been living in the U.S.
in the shadows under conditions of fear without documents.

Another one million or more undocumented immigrants who came to the
U.S. as children, as well as their parents, could also be in legal
protection. Deportations would still proceed for convicted criminals,
foreigners who pose national security risk and recent border crossers.

White House lawyers have reportedly have been working for months to
make sure the president`s proposal would be legally unassailable, as one
senior administration official put it, in the face of inevitable Republican
attacks. And those attacks, they are very much already well underway.

(BEGIN VIDEO CLIPS)

MCCONNELL: The president has been told over and over and over again,
and we`re telling him again today -- don`t do this.

SEN. JOHN CORNYN (R), TEXAS: I can`t think of anything more
discouraging that the president of the United States could do.

REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: We`re going to fight
the president tooth and nail if he continues down this path.

UNIDENTIFIED MALE: A president that has no authority to do this.
It`s against the law.

REP. HAL ROGERS (R), KENTUCKY: Surely, the president understands the
kind of explosion that would occur up here if he takes that unilateral
action. Surely, he`s got better sense than to do that.

(END VIDEO CLIPS)

HAYES: Republicans are basically threatening to declare political
nuclear war. For starters, Tea Party Senators Ted Cruz and Mike Lee are
vowing to grill and potentially block President Obama`s pick to be the new
attorney general, Loretta Lynch. It should be noted: she, of course, has
had no role in crafting this policy.

But they`re doing it, or plan to do it over what they call executive
amnesty. And Republicans may just go all out and shut down the government.
Now, Mitch McConnell is promising that won`t happen. House Speaker John
Boehner will not make a shutdown over immigration off the table. And more
than 50 House lawmakers have signed a letter saying that language barring
the president from acting alone on immigration should be attached to
legislation needed to keep the government operating after December 11th
when its current funding expires.

If they get their way, and the president acts anyway, things get very
ugly very fast.

Joining me now, Michael Shear, who`s the White House correspondent for
"The New York Times", who wrote that report in "The Times" today.

Michael, great reporting.

First up, in the scale of what was being debated over the last several
months, where does this fit? This number that is in your piece? Up to 5
million? My sense is that it`s way at the high end?

MICHAEL SHEAR, NEW YORK TIMES: I think it is at the high end. And,
keep many mind that the way we wrote that was very clearly to put that
number as the top number. They could still come in slightly below that.
My sources say that they are still tweaking some of these programs. And it
depends, for example, how long they say some of these illegal immigrants
have to have lived in the country. If they say they -- it applies to
everyone who`s lived in the country only five years, then that`s the larger
number, if they say, well, you have to have lived in the country for 10
years, that`s a slightly smaller number.

So, it could still come c somewhat underneath that. But still, even
if that`s the case, if it`s only 4 million or 3.5 million, it`s a heck of a
lot larger I think than some people had originally expected when they
thought maybe the president would go small or tinker around the edges.
That`s not what this is.

HAYES: What`s your sense of how they`ve come to that decision, both
from a sort of political standpoint and from a legal standpoint, you write
in the piece about vetting this to make sure it`s rock solidly legal.
What`s that process been like?

SHEAR: Well, the process -- the legal process has been taking place
in kind of two locations, the Department of Homeland Security, which has
really been the place to develop the policy pieces, and then the Department
of Justice, which has been vetting each of those policy pieces to make sure
that there`s a legal basis for being able to defend them. And they`ve
really reached back decades to parts of the law that kind of guarantee the
ability of the administration, any administration, any executive to be able
to enforce the laws with some discretion.

You can`t arrest everybody, so you have to pick and choose who you`re
going to make priorities. And that`s really the sort of core of what
they`ve tried to do from a legal perspective.

From a political perspective, I think, you know, there was a growing
sense as the months wore on that the Congress is just not going to do
anything. And if they were going to get anything done, they have to go
big. They couldn`t go small because they were going to get beat up on it
no matter what.

HAYES: Yes, that was my thinking about the political calculation here
is, if you`re talking about these numbers, it seems to me the reaction it
will provoke politically is basically the same, it`s 3 million people or 5
million people. It`s very hard for me to imagine that the reaction would
be modulated in some say.

And I say this because I take Republicans by their word that they`re
offended essentially by the principle rather than the actual number.

SHEAR: Right. I think, in truth, the bigger the number, probably the
bigger their reaction in some way. But I don`t think the reaction would
have been small if it was a million or half a million people. You know, I
think the sides were primed for a confrontation here, especially, I mean,
you`ve showed it. The sort of chorus of the Republicans saying, you know,
how they would react. And I think that`s likely to happen no matter where
that number kind of settles in.

HAYES: Michael Shear of "The New York Times", thank you.

Well, joining me now is Congressman Tim Huelskamp. He`s a Republican
from Kansas.

And, Congressman, my understanding is you`re opposed to this. And I
guess my question is -- are you understanding on principle or because of
the scale of what you`ve been reading about as reported in "The Times"?

REP. TIM HUELSKAMP (R), KANSAS: Well, so far, it`s a secret play, and
that`s part of the problem. It`s an executive amnesty put together behind
closed doors. We don`t know who`s writing it. It`s apparently six years
in the making. The president has had six years to put this together. He
had full majority in the House and the Senate, could have passed this in
2009 and `10.

So, we`ll wait to see what happens. But, at the end of the day, I
think this is a very bad political move for the Democrats in the future.

HAYES: What`s the objection, though? I mean, I just want to
establish here are you saying --

HUELSKAMP: The same objection the Democrats had in 2009 and `10.
They didn`t want to do this. They didn`t want to do it when he had full
majorities.

HAYES: No, no, I`m asking you for your objection. Do you think this
is not within his legal authority? Is it a legal objection? Is it a
substantive objection? What is the objection to it?

HUELSKAMP: He has no authority to do that.

HAYES: He doesn`t have authority to --

(CROSSTALK)

HUELSKAMP: No.

(CROSSTALK)

HAYES: When George H.W. Bush in 1990 --

HUELSKAMP: He didn`t do amnesty.

(CROSSTALK)

HUELSKAMP: Let`s be clear about it -- 5 million people to grant them
free rights in this country?

HAYES: He granted affirmative action for 1.5 million people, Ronald
Reagan in 1987.

HUELSKAMP: If he could have done this, why didn`t he do it in the
last six years? Why did he wait until after election? I think this
president is desperate.

HAYES: But --

HUELSKAMP: He`s trying to flail on finding something he could grab a
hold of.

HAYES: Congressman, he`s been very clear about that, right? What he
said was his hope is for statutory action for a comprehensive bill that
pass the Senate by 68 votes --

HUELSKAMP: I don`t believe him at all.

(CROSSTALK)

HAYES: -- had a vote in the House. If you would bring it to the
House tomorrow, it would pass.

HUELSKAMP: In 2009 and 2010, he didn`t even try in 2009 when he could
have done that. Why didn`t he do that?

HAYES: Congressman --

HUELSKAMP: Why is he doing it now? Why did he wait six years? I
don`t why he --

(CROSSTALK)

HAYES: Congressman, there`s a bill -- there`s a bill right now. It`s
sitting there. I can refer you to the URL to it. It passed like 68 votes
in the Senate, which is a lot of votes I think you and I would agree. It
would probably pas the house, maybe it wouldn`t. But if you brought it to
a vote tomorrow, we`d find out, wouldn`t we?

HUELSKAMP: We could. But I don`t believe it will pass.

HAYES: So, we should do that then.

HUELSKAMP: There was just an election nine days ago.

HAYES: Wait, but why not --

HUELSKAMP: What the president is doing is defying the American
people, defying the voters and I think he`s digging a deep hole for
Democrats.

HAYES: So, then, what are you going to do about it if he does do it?

HUELSKAMP: Well, I don`t think he has authority to do that. I think
it will be challenged in court. I am in favor of taking away the money to
issue these cards to illegally going around Congress, which he said he
would do. I think there`s a real challenge. I think at the end of the
day, the American people are going to say, this is exactly why we elected
Republican majorities because this president thinks he is above the law.

HAYES: So, I want to ask you this question -- I think there`s
significant reason to believe it is legal. But, that aside -- you talk
about a lawsuit, John Boehner, of course, had already sued the president --

HUELSKAMP: How do you know it`s legal? This is a secret plan.

HAYES: Well -- do you think -- do you think the deferred action that
he offered in 2012 was illegal?

HUELSKAMP: I think it was. We disagree on that.

HAYES: You do think that as illegal?

HUELSKAMP: I think it was a big mistake.

HAYES: No, but you think it was illegal?

HUELSKAMP: What do you think we had the humanitarian crisis on the
border this summer is because of executive amnesty, which he granted to
certain amount of people.

(CROSSTALK)

HAYES: If you think it`s illegal, is the recourse for the House to
impeach?

HUELSKAMP: The recourse is to take away the money.

HAYES: A shutdown?

HUELSKAMP: The single greatest power of the House is -- actually no,
if the president wants to shut down the government, he can do that. All he
has to do is what he did a year ago and that`s refused to sign bills to
keep the government open. Nobody wants a shutdown, I think, except for the
man in the White House who is desperate.

(CROSSTALK)

HAYES: But you would attach a funding bill and dare a shutdown?

HUELSKAMP: There`s hundreds of things attached to a funding bill.
That`s what`s being so misreported so often in the press --

HAYES: So, do you think it`s wrong when he says under no
circumstances will there be a shutdown.

HUELSKAMP: The president, if he vetoes a bill to keep it open, he
will shut down the government like he did a year ago, which costs I think,
at the end of the day, control of the Senate.

HAYES: That is a very interesting theory.

Congressman Tim Huelskamp of Kansas, always a pleasure. Thank you,
sir.

HUELSKAMP: Thank you.

HAYES: Joining me now, Congressman Luis Gutierrez, Democrat from
Illinois, a member of the Congressional Hispanic Caucus.

Congressman, your reaction to Congressman Huelskamp?

REP. LUIS GUTIERREZ (D), ILLINOIS: Well, number one, the president
has the authority, as you so clearly and eloquently stated, Chris, Reagan
did. In 1986, we passed Immigration Reform and Control Act. It was truly
an amnesty for 3 million undocumented workers, which was pushed by then-
President Ronald Reagan. When he saw there was a flaw, he stopped the
deportation of 1.5 million people, until 1991 when it got fixed. And
George Bush followed him.

Look, this happens repeatedly, but it didn`t happen only then. Think
about Iran Contra, and think about the war, the civil war in Nicaragua.
Tens of thousands of Nicaraguans came to the United States, mostly to
Florida, and then the attorney general protected them. And then, until
1997, the Republican Congress granted them amnesty. In three years, they
could all become citizen.

HAYES: Just to be clear, there was no statutory authority to grant
amnesty, essentially to protect them from deportation. It was just
unilaterally granted by the attorney general?

GUTIERREZ: It`s unilaterally -- because they have what`s called
prosecutorial discretion. Just like they don`t prosecute anybody and it`s
probably a bad example, but they don`t do it in Colorado or in Washington
or the state, they decide not to prosecute people because they passed law
legalizing marijuana.

Look, you have to make determinations. But this is clearly
established in the law. Today, we have over 115 Democrats joined Zoe
Lofgren and I and the Judiciary Committee circulated a letter about a week
ago. Speaker Pelosi, I and Zoe Lofgren, issued an op-ed piece, where we
clearly put the historical framework.

Look, they don`t want this president to succeed. And I just want to
say, Chris. I told you months ago, it would be about 5 million people that
I thought that`s where we would go.

HAYES: You did. But I thought there was a little Lucy in the
football situation because --

GUTIERREZ: Well, we don`t know that we`re there yet. But listen, we
believe -- Democrats stood up. Nancy Pelosi, Steny Hoyer, 115 of us stood
up today and said, Mr. President, go big, go bold and go quickly. These
are families that are desperate need.

I want to make clear to my colleague who was just on the program.
Look, you remember when they said to us, they said, look, everybody can`t
be a citizen. I said, OK. President Obama said OK.

We said, let`s move forward. When they said, let`s do it piecemeal.
We said, OK.

Every time the Republicans want to move forward, we said OK. There
should be no surprise to anybody, the president at the beginning of the
year said, if you do not act, I will act using my pen and the phone.

He advised everybody he was going to do it. Clearly, and I just want
to say, they have a great team at Homeland Security and Jeh Johnson. And
Jeh Johnson was the one that organized the Department of Defense the
reversal of "don`t ask, don`t tell".

So, he knows how to get these kinds of things done. And I believe
this will up stand any scrutiny.

Look, if what they want to do is play politics with this, then they
will not act.

HAYES: I think that`s pretty clear that`s going to be the case.

Congressman Luis Gutierrez, thank you very much.

GUTIERREZ: Thank you, Chris.

HAYES: All right. Some late-breaking news to bring you here tonight:
a damning new report that`s just been released says a series of secret
service failures made it possible for an intruder to break into the White
House in September, including a Secret Service officer who was on his
personal cell phone at the time. Details on that story.

Plus, my interview with John Stewart ahead.

(COMMERCIAL BREAK)

HAYES: Today that Don Blankenship, the former chief of Massey Energy
has been indicted on four counts of violating federal mine safety laws
relating to explosion in April 2010, the company`s Upper Big Branch Mine in
West Virginia that killed 29 miners. The indictment states in part, quote,
"Blankenship fostered and participated in an understanding that perpetuated
UBB`s practice of routine safety violations in order to produce more coal,
avoid the cost of following safety laws and make more money."

I interviewed Don Blankenship not too long ago, and that interview was
posted on our web site, allinwithchris.com, if you want to check it out.

(COMMERCIAL BREAK)

HAYES: Breaking news tonight on the lapses by the Secret Service that
allowed an intruder at the White House to get through the front door and
into the East Room of the building just below the first family`s residence.

The Department of Homeland Security has just released a summary of its
only internal investigation of what went wrong that day in September. The
findings reveal a troubling series of human and technological failures.
Radio transmissions between Secret Service officers were unclear and
muffled. Officers who recognized the intruder Umar Gonzalez from a
previous incident when he showed up at the White House with the hatchet did
not engage him or notify the joint operations center or any other Secret
Service unit that he was seen nearby.

Personnel near where Gonzalez jumped the fence didn`t see him because
their views were obstructed by a construction project.

And this one might be the most damning -- the K-9 officer on duty was
on a call on his personal cell phone without his radio earpiece in his ear
and left his second tactical radio in his locker. The officer didn`t even
know what was happening until he spotted another officer running by.

Law enforcement official told NBC News, so far, no one has been placed
on administrative leave as a result of the report. The individuals
involved remain under post at the White House.

Joining me now, "The New York Times" reporter who broke the story
tonight, Michael Schmidt.

Michael, I guess I would say it`s a comedy of errors if it weren`t sop
-- if the stakes weren`t so high. I mean, luckily, it ended with no one
getting hurt and you can sort of view this domino of mistakes as almost
farcical in reading the report. But it`s a really jaw-dropping document.

MICHAEL SCHMIDT, THE NEW YORK TIMES: Everything went wrong, and
that`s the biggest message from the document.

Even down to the man standing -- the officer standing on the outside
of the door at the north portico of the White House, he didn`t know what
was going on. He saw a lot of commotion. He though -- he followed his
training and went behind one of the pillars. He didn`t know someone was
coming to the door.

He saw this guy come up the steps, he saw people chasing. He said,
well, I`m going to get out of the way because the door is going to be
locked. And then the intruder opened the door and went right into the
White House.

At that point, he blew by an officer -- and it`s just a serious of
those types of things that everything went wrong with.

HAYES: There`s one point in which he managed to -- there`s a set of
hedges. So, the biggest problem, right, was that the person with the dog
was on his personal cell phone sitting in the car without his earpiece in
which seems to be one of the most key parts of all of this, because there`s
a big question right afterwards, why were the dogs not released? And the
most recent White House fence jumper, that was actually how he was
apprehended.

SCHMIDT: Yes.

HAYES: So, that`s the key pretty unambiguous part of this.

SCHMIDT: Well, what happens is the dog needs to be tracking the
intruder along the way.

HAYES: Right.

SCHMIDT: The dog wasn`t doing that because it was inside -- inside
the car and the driver, the handler, had no idea what was going on. So, by
the time the dog arrives in the scene, about 11 seconds, I mean, this was a
matter of seconds, very quickly, there was only so much the dog could do
because it wasn`t clear that the dog knew who the intruder was. So, at
that point, the dog wasn`t allowed to go.

In the most recent incident, which the dog was let out, it`s very
clear if you look at the video that dogs knew who the intruder was. He was
standing right there.

HAYES: So what conclusions can you draw? I mean, systemically, part
of what`s strange about the document is I came away with two.

One, this seemed like such a strange concatenation of errors that it`s
clear what systemically the problem is. And two, you know, there were
multiple points at which Secret Service could have fired their weapons and
they chose not to, and I still don`t know whether that was the right thing
to do or not.

I sense it was the right thing to do. The guy only had a knife. But
maybe that`s not the conclusion of DHS.

SCHMIDT: Well, Secret Service officers and agents are under the same
requirement about using deadly force the police officers are. Is the
person posing imminent danger to themselves or someone else?

Now, the question is, was he doing that in this case? Had they shot
him, would the reaction have been, why didn`t the Secret Service kill a
veteran who was mentally deranged that only had a small knife on him while
the president wasn`t at the White House?

Now, wait, if he had an explosive vest on underneath his clothing --

HAYES: Oh God.

SCHMIDT: -- and they looked at him and said, he`s unarmed and didn`t
do anything and then he blew himself up inside the White House underneath
the residence, then that would be something else. So, it`s a very, very
difficult situation for the Secret Service.

HAYES: Yes. And in some ways, right, let`s just reiterate the point
of how important it is to have procedures in place that do apprehend
someone like that and interrupt them very quickly. And that`s why I think
the dogs are such a key part of this, right? Because that`s just kind of
way of stopping getting to the point that all these officers had to get to.

SCHMIDT: You can very easily make the argument in this case that if
the man -- the guy with the dog -- had the dog had been tracking the
intruder, the dog had been let out, the dog would have stopped the
intruder, and Julia Pierson, the director of Secret Service at the time,
would still have her job and this would have been a very small story and
never would have turned into what we`ve had.

HAYES: Yes, not a good day for that Secret Service officer.

Michael Schmidt, thank you very much.

SCHMIDT: Thanks.

HAYES: Up next, Chris Christie has a pig problem. More precisely,
these pigs have a Chris Christie problem. Will the Jersey governor throw
them under the bus to help his chances in 2016? And what kind of monster
would throw a pig under the bus? That`s next.

Later, my interview with John Stewart of "The Daily Show." Maybe
you`ve heard of him. You don`t want to miss it.

(COMMERCIAL BREAK)

HAYES: Pop quiz, under what circumstances is it acceptable for the
governor of Iowa to call the governor of New Jersey and tell that governor
of New Jersey he should veto a New Jersey bill?

Think about that. A New Jersey bill that has broad bipartisan support
at that. It depends on who you ask.

Now, Republican Governor Terry Branstad of Iowa recently told "The
Associated Press" that he called Governor Chris Christie last year when
Christie was considering a bill that would ban the practice to confining
pregnant pigs to crate so small they can`t even turn around in them.

"I called him to tell him how bad I thought it would be and how the
people that are involved in pork production, that really understands this,
feel this would be very bad."

It must have been something to that advice because -- from Branstad --
because Christie vetoed that bill. At the time, Christie said he wanted a
decision to ban what are known as gestation crates to be left up to New
Jersey`s Department of Agriculture. So, lawmakers said, OK, they went back
to the drawing board and they drafted a new version of the bill putting
more control in that department`s hands.

The legislation aims to end the practice that is so obviously sadistic
and cruel that even corporate giants like McDonald`s and Burger King have
agreed to stop using gestation crates.

The crates are mostly used as a cost cutting measure so that farms can
pack more pigs into the same space. The problem is, well, pigs are
incredibly intelligent and social creatures. And being confined for
months, yes, months, at a time -- cannot turn around, where they cannot
move, they develop health problems and they lose their minds to the boredom
and stress.

After the pig bares a little, the cycle starts over again and
continues for years. Animal welfare expert, Temple Granin, known for
designing human slaughter methods has said in the past, the practice
basically, you`re asking a sow to live in an airline seat.

Given these facts, it`s no wonder the new legislation once again
passed both the New Jersey assembly and the Senate with broad bipartisan
support. Recently polling of the Human Society poll shows that 93 percent
of New Jersey voters support the ban.

With just 300 pig farms in the state, which don`t regularly the use
the crates, the bill would have very little impact on farming in New
Jersey. But mostly be a symbolic gesture of moral opprobrium where they
will ensure the practice would not spread.

The gestation crates have been banned in nine other states including
states like Arizona and Florida not exactly havens liberalism. Christie
has until next month to decide whether to sign the bill.

But what possible reason could Christie have to veto it this time
around? That brings us back to Governor Gerry Branstad in that phone call.
You know who doesn`t support these types of animal welfare bills, most of
the pork industry. You know where they raise a lot of pork? Iowa.

It`s home to over 20 million pigs. You know what else is in Iowa, the
first in the nation presidential caucuses. According to Terry Branstad, he
and Christie talked about New Jersey`s new gestation crate bill just last
month in an Iowa fundraiser.

And the Iowa-based pork lobby praised Christie when he vetoed the
original bill. And as the "Daily Beast" reports, one of Christie`s biggest
cheerleaders in Iowa is a guy named Bruce Resteter (ph). He is a
Republican big money donor and he`s made his fortune off pork and ethanol.

In the past Resteter summed up Christie`s as this, he clearly
understands smaller government. Certainly all the things I and those
accompanying me care about. We don`t know if Chris Christie will run for
president.

If he does run, we don`t know if he will succeed, but we will know
soon enough where Chris Christie stands on pig torture.

(COMMERCIAL BREAK)

HAYES: Today, 85 days after the grand jury first convened to decide
whether or not to indict Police Officer Darren Wilson in the shooting death
of the unarmed, Michael Brown, where now medical examiner, Dr. Michael
Baden testified.

Baden was retained by the Brown family who conducted an independent
autopsy of Michael Brown in addition to the autopsies conducted by the
county medical examiner and the Justice Department.

It was Dr. Baden, let`s remember, who first told the world what
happened to Michael Brown back in August. And, today, he finally spoke to
the people who will be deciding whether or not to indict Darren Wilson.

Lawyers for the Brown family told NBC News they got an anonymous tip
that one of the grand jurors asked to hear from the family`s forensic
expert. And then, shortly after that, a call came from the prosecutor`s
office asking Baden to testify.

Now, Dr. Baden`s testimony is incredibly important because his
analysis differs from the county medical examiner`s report in at least one
key respect whether or not Michael Brown was shot at close range. We`ll
explain the significance of that in just a moment.

Brown`s lawyer said Baden planned to testify his forensic exams showed
results consistent with witness accounts that Brown was surrendering with
his hands up at some point when he was shot and killed.

Speaking to the press today, that same lawyer for the family expressed
his trust of the entire grand jury process.

(BEGIN VIDEO CLIP)

BENJAMIN CRUMP, LAWYER FOR BROWN`S FAMILY: Here`s the problem. When you
have a grand jury, they only have one voice in there and that is
historically, they`re going to do whatever the prosecutor wants them to do
as attorney eloquently said, if he presents the evidence in a certain way,
there will be an indictment.

If he presents the evidence in another way, there will be no
indictment. It is all about what evidence he presents and how he presents
it.

(END VIDEO CLIP)

HAYES: Seema Iyer, she is a criminal defense and civil rights attorney and
a former prosecutor. OK.

SEEMA IYER, CRIMINAL DEFENSE AND CIVIL RIGHTS ATTORNEY: Hi.

HAYES: So we`ll talk about the process of the grand jury which is so
strange in a second. But you`ve got a county medical examiner whose
medical report said that Michael Brown was shot at close range.

And that was communicated in a story that was leaked to the grand jury
testimony that that possibly could be part of the theory of the defense for
Darren Wilson if there was a strong --

IYER: Correct. But we have to break down how the shot could have
occurred. If a shot occurs at approximately 1 inch, then there is soot and
no stippling. If a shot occurs between three and nine inches, there is
stippling, no soot. If a shot occurs over nine inches --

HAYES: What`s stippling? I`m sorry.

IYER: Stippling is like a patter, a gun -- right, if it`s greater than
nine inches, there is neither. So anything from nine inches and beyond is
considered a distant wound. So nine inches, ten feet, same thing.

HAYES: I see. So what we are hearing from the county medical examiner
they are saying --

IYER: They said soot and no stippling. So the problem now with this
discrepancy --

HAYES: That means within three inches.

IYER: Right. Exactly. So the county medical examiner is saying less than
3 inches. And Baden is saying greater than 9 inches. That`s a huge
discrepancy. If we were talking about soot and stippling, we`d be closer
in proximity.

HAYES: Now, there is also the case that my understanding is that we don`t
know -- we know Baden had access to the body. We don`t know if he had
access to tissue or clothing of Michael Brown.

IYER: That`s correct. I do not think that the Dr. Baden, has investigated
the forensic evidence. I don`t think he`s done --

HAYES: Right. We know he`s requesting something, but we don`t know what
he`s got.

IYER: Right.

HAYES: So here`s what I also find strange. So there is this sort of back
and forth about where the first shot was fired and we think it`s the first
shot.

IYER: OK.

HAYES: And it seems to me that part of the story that was leaking from the
grand jury was --

IYER: It`s the thumb.

HAYES: That he was shot in the thumb because there was a struggle for the
gun and the idea of the struggle for the gun is that Michael Brown is an
aggressor, right?

IYER: Right.

HAYES: So that`s what that fact pattern is trying to establish if you`re
trying to get there --

IYER: Which can be corroborated by soot and not stippling, the shot to the
thumb, but Baden doesn`t talk about the shot to the thumb. However, I
believe in the report there`s an indication that there`s a shot to the
thumb.

HAYES: I think he does talk about a shot to the thumb, but he`s not clear
on it.

IYER: He`s not saying soot or stippling.

HAYES: OK, so then the question becomes whatever happened in that car,
this is what I think is really important, it`s possible that what happened
in the car, Michael Brown reached for the gun. Or he didn`t. And he was
shot.

But then there`s a whole other sequence of events. Isn`t it possible
that something could happen in which Michael Brown is possibly aggressive
in the car and it`s still a crime to shoot him and kill him?

IYER: Yes, that`s a great point. OK, so this is all -- you have to look
at the entire event in terms of self-defense, in terms of intent, but then
you break down the event in steps.

So if at the moment in time, you were in the car and there was a
struggle and Officer Wilson felt imminent danger --

HAYES: And I should say we still don`t know if that`s at all the case.

IYER: At that moment, maybe self-defense but it ends, Chris. It ends.
When you leave the car and then Brown is running away from you and his back
is turned towards you, the danger ends. The imminent threat is over.

HAYES: Right, exactly. That is -- legally that those were separable,
right, because it seems to me conceptually they are and it seems like all
the coverage early on led us to believe that whatever happened in that car
was determinant -- of whether he --

IYER: It`s not. And it`s very analogous, the Zimmerman situation, but the
Zimmerman there was only shot and because there were so many shots here,
people are getting so confused, but the law recognizes the series of
events.

And so we go from murder in the first degree, which is this deliberate
-- not going to happen. Murder in the second degree is a knowingly
elements mens rea, mental thought.

And then we get to involuntary manslaughter, which is imperfect self-
defense more likely and then finally, voluntary manslaughter, which is
basically a fight of a certain range, heat of passion.

HAYES: OK, so there`s four possible ways this could shake out. Seeme
Iyer, thank you very much. Soon, we`ll be hosting live stream tomorrow
starting at noon Eastern discussing legal issues in the news.

My interview with Jon Stewart, plus liberal icon, Elizabeth Warren has
given a big job in the Senate. What it means for her future ahead.

(COMMERCIAL BREAK)

HAYES: Tomorrow night at 9 p.m. Eastern, MSNBC is going to have an in-
depth look at the battle against ISIS with NBC News chief foreign
correspondent, Richard Angle, plus a special report on the U.S.-led war
against ISIS. Richard has been traveling inside Syria.

The first American network TV reporter to be in the contested city is
going to take you inside the fight against ISIS, right to the frontlines in
this MSNBC Special Report, that`s tomorrow night at 9 p.m. We`ll be right
back.

(COMMERCIAL BREAK)

HAYES: Elizabeth Warren is now officially a leader of the Democrats. In a
closed-door meeting today that reportedly lasted nearly 4 hours, Senator
Warren`s colleagues in the upper chamber voted to give her a key role in
shaping the party`s policy.

Today`s leadership elections at the Democratic caucus, which came
after the party experienced a drubbing in the midterms returned Nevada`s
Harry Reid to majority, soon to be minority leader.

His top deputies, Illinois` Dick Durbin, New York`s Chuck Schumer and
Washington`s Patty Murray, all returning to their leadership slots and some
new faces were also elevated.

Senators Amy Klobuchar of Minnesota and John Tester of Montana along
with the aforementioned Warren, who with the urging of Harry Reid, was
given a newly created position specifically for her.

Warren will now be the strategic policy advisor of the Democratic
Policy and Communications Committee. In addition to helping steer and
shape policy, Warren also will according to several reports, serve as a
liaison to liberal groups to make sure their voice is heard in leadership
meetings and discussions.

The question now is whether this new leadership for Warren`s promotion
for the Massachusetts senator or a co-option for progressive views.
Joining me now is MSNBC political analyst, Joan Walsh, who is also editor-
at-large at Salon. What do you think?

JOAN WALSH, MSNBC POLITICAL ANALYST: I think it`s good news. I`m happy to
hear it. I worry about the liaison part because that sounds like she gets
the job of listening to us gripe about the Keystone XL vote and she gets to
listen to people gripe and then progressives don`t necessarily get to see
Harry Reid.

We still want to see Harry Reid. We still want to see Harry Reid. So
that part I didn`t like when I was just hearing about that. But shaping
policy I think is a great wall for her. She is the person who tells the
best story in the Democratic Party right now.

HAYES: That`s the great point. There is two parts of that. Yes, I have
the same feeling about liaison, the White House liaison progressive groups,
their job is to go and take views from people that were furious at them or
tell those people --

WALSH: Bad news.

HAYES: SCFU. Stop coming here and bothering us, we don`t want to see you
and get in line.

WALSH: Right. So that part I don`t like and I don`t think she`s really
going to do that and the thing about Elizabeth Warren, I mean, if anybody
thought she was just going to sit there and listen to progressives wine,
they should talk to Tim Geithner. Because she has taken every -- even
ceremonial-looking roles like oversight of TARP could have been a nothing
job.

HAYES: Yes, she was on the congressional oversight panel, which is
basically a throw away plan.

WALSH: She made that, you know, a top headline leading the nightly news
kind of job.

HAYES: She also -- this sort of strategic job, she is clearly this kind of
progressive icon right now and part of that is she`s gotten very good at
putting together messaging and policy, you know --

WALSH: At the same time -- right.

HAYES: So bank and students should be able to borrow at the same rate. To
boil down complicated policy is something simple and use that used policy
as a kind of messaging tool.

WALSH: Right. And I think that one of the things I kept hearing last week
and we`re still hearing is that Democrats didn`t have a message. Minimum
wage isn`t enough. She really is someone.

I think the issue for us right now, Chris, not just for progressives,
for the country, is that we have not figured out how to rebuild the middle
class that got built in the `50s,`60s and early `70s. And she has a story
about why that fell apart and how it needs to happen again. She`s the best
at it.

When Barack Obama tries to say you didn`t do that alone, he turns it
into, you didn`t build that and he`s kind of clumsy with it. And Hillary
Clinton turns it into you didn`t create jobs and that is not true either.
She is eloquent with it, but it also has substances, not just about
sloganeering.

HAYES: Yes, and she`s also been a really quick study because I remember
there is a period people love Elizabeth Warren and she run for Senate. She
had a rough few first months on that campaign because it`s hard. You`re in
a totally new universe and the campaign trail is a bizarre surreal world.

WALSH: Yes.

HAYES: But she`s gotten very good very quickly. That`s why I`m only sort
of note about. When I see here now, well, you haven`t been doing this very
long and you`ve gotten very good very quickly.

WALSH: She`s really good to watch her on the campaign trail, but I think
she`s also been really good in the Senate. My only worry is that I don`t
want anything taking away time from the job that she needs to be doing in
legislation. But let`s be honest, there`s not a whole lot of pushing real
legislation and muscling things through committees for the next two years
anyway. So it`s the time to hone the message.

HAYES: That`s the other part that seemed a signal to me about what the
Democrats are going to be in the minority about sort of honing that
message. Joan Walsh, always a pleasure. Thank you.

WALSH: Thanks, Chris.

HAYES: It is finally time for my interview with Jon Stewart after this.

(COMMERCIAL BREAK)

(VIDEO CLIP)

HAYES: In 2009, "The Daily Show" did a series of segments from that
country`s presidential election. And the clip you saw "The Daily Show`s"
foreign correspondent, Jason Jones, was interviewing real journalist,
Maziar Bahari, who is obviously being a very good sport.

He was an Iranian comedian reporting for "Newsweek." He`d been
covering the Iranian election that summer including the campaign of the
primary reform candidate challenging then President Makmoud Akhmadinijad.

But on June 21st, 2009, just four days after that "Daily Show" segment
was broadcast in the U.S. Bahari was taken into custody. As the "Chicago
Tribune" reports, Bahari was already on the Revolutionary Guard`s blacklist
picked up for spying, he was arrested, imprisoned, interrogated and
tortured for 118 days.

It was part of a crackdown that netted hundreds including journalists
and protesters. Bahari was eventually released and wrote a memoir about
his experience called "Then They Came For Me."

That memoir has now been turned into a feature film, "Rose Water,"
adapted to the screed and directed by the host of "The Daily Show," Jon
Stewart. It`s Stewart`s directorial debut. He took three months off from
the "Daily Show" to film and I spoke with him earlier today.

(BEGIN VIDEOTAPE)

HAYES: So, Jon, do you remember when you first learned that Bahari had
been taken by the authorities? Remember someone telling you. Did you read
about it in the paper? When it first cross your consciousness?

JON STEWART, HOST, "THE DAILY SHOW": Yes, no, we found out it was maybe
about two or three weeks after Jason got back from Iran. There were a
couple of other people that we interviewed for the pieces that we did in
Iran. And they were both arrested, as well.

It was also within a much larger crack down. We know that hundreds,
if not thousands of people in Iran had been arrested. So we were working
with people trying to get Mazier out as well as another gentleman`s family
who had also been arrested. His son came on the show to talk about his
father`s arrest.

HAYES: So even if it was in the context, you know there`s this huge
crackdown, right? It wasn`t you and "The Daily Show" that landed these
people in this peril, right? We`re doing it in this other context in which
the stakes of that are way, way, way higher.

STEWART: Right. I think we were hopefully smart enough to realize that
the Iranian government was not cracking down on people who had participated
with "The Daily Show." It was, you know, the violence in the streets. If
you remember, you know, Netta and the people who had been shot on the
streets. So it wasn`t -- this wasn`t occurring in a vacuum.

HAYES: What was it that made you want to tell this particular story?

STEWART: Well, I think it was a lot of it was my friendship with Mazier.
When he got out and came on the show and then whenever he would be passing
through New York, he and I would sort of meet for breakfast and just talk,
you know, politics and family.

He may be the most culturally literate individual I think I`ve ever
met in my life. And the memoir that he was writing was just, you know,
just beautifully layered and compelling. I think when he first asked me,
it will be produced as a movie without me necessarily being involved more
than that.

And then within a year of trying to do that, we had written all of
these lists to do that -- all of these Oscar-winning writers. Other people
hired them and we didn`t have any money. It was more impatience. I did
think there are so many elements in the story that are relevant to not just
Mazier, but to journalism, the way that technology has democratized
information.

The way that large news organizations have cut back on infrastructure
and you have all of these sort of freelancers and individuals that are out
there really vulnerable on their own the fact that now citizen journalists
are targets of government crackdowns. There are so many of these elements
that came to such a relevant story.

HAYES: Did you find yourself -- I mean, you had to go and direct the film,
which if I`m not mistaken, is the first time you`ve done that in this same
truncated schedule in Jordan.

STEWART: You are not mistaken.

HAYES: I mean, did you wake up in Jordan the first day of shooting and
think to yourself, well, I don`t know what I`m doing?

STEWART: That`s pretty much how I wake up, generally. Probably the
smartest thing that I did was to be very honest with myself. And this is
going to sound -- and you will forgive me, it`s going to sound very
Rumsfeldian. I didn`t know what I didn`t know.

So I was very clear with the people that, you know, I tried to get a
very experienced crew and was very honest with them about the conditions
that we were going to be operating under.

You know, we had very little time to do it. We had very little money.
It was 100 degrees out. It was the summer in Jordan. It was Ramadan. Our
first four days we are going to be in a working Jordanian prison.

You know, but on the plus side, you know, I`ve never done this before.
So everybody was aware of the challenges going in. They were -- I was very
sure to say to them, please raise your hands. You know, early and often.

If some of the ideas are putting too much pressure on the production,
if they`re not realistic, if we could execute them in a better way. It`s
not so much that I felt confident in myself, I felt confident in the people
that I had surrounded myself with.

HAYES: Jon Stewart, host of "The Daily Show," thank you much, Jon.
Appreciate it.

STEWART: Thanks a lot, Chris.

(END VIDEOTAPE)

HAYES: That is ALL IN for this evening. "THE RACHEL MADDOW" show starts
now. Good evening Rachel.

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

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