updated 10/15/2004 10:44:07 AM ET 2004-10-15T14:44:07

Guests: Bob Kohn, Bob Zelnick, Lisa Bloom, Joe Tacopina, Mort Zuckerman

(BEGIN VIDEO CLIP)

 

BILL O‘REILLY, FOX NEWS:  You know, I feel numb right now.  The trial will proceed.  It‘s very serious.  And I think we will win it.  Bad day, bad day for me. 

(END VIDEO CLIP)

PAT BUCHANAN, GUEST HOST:  Bill O‘Reilly, the powerful Fox News host famous for putting his guests in the hot seat, now finds himself sitting there.  We will break down the sexual harassment suit against O‘Reilly and his counterclaim that he is being shaken down for $60 million. 

Then, did last night‘s duel in the desert give either candidate a boost, and did Kerry‘s comment about Vice President Cheney‘s gay daughter cross the line?  Those questions tonight on SCARBOROUGH COUNTRY. 

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome to SCARBOROUGH COUNTRY.

BUCHANAN:  Yes, indeed.  Welcome to SCARBOROUGH COUNTRY.  I‘m Pat Buchanan, sitting in for Joe. 

Bill O‘Reilly, host of “The O‘Reilly Factor,” the face and force behind the success of Fox News Channel, now finds himself in the crosshairs. 

NBC News‘s Anne Thompson has the report. 

(BEGIN VIDEOTAPE)

REGIS PHILBIN, CO-HOST:  Here‘s Bill O‘Reilly. 

ANNE THOMPSON, NBC CORRESPONDENT (voice-over):  It‘s kind of story Bill O‘Reilly would relish, a man who claims high moral standards caught in a sex scandal, but this time he is that man. 

O‘REILLY:  You know, I had to make a decision, and I knew by filing this lawsuit, I was going to perhaps ruin my career. 

THOMPSON:  Seen working together in this “Dateline” profile last year,

O‘Reilly is now suing his associate producer Andrea Mackris

O‘REILLY:  You are telling me, Mackris.

THOMPSON:  Claiming she and her attorney demanded $60 million to keep quiet about charges O‘Reilly sexually harassed her.  Mackris‘ attorney is suing the cable star for sexual harassment, going into very specific detail details concerning conversations O‘Reilly allegedly had with her about phone sex, sexual encounters, and fantasies. 

Mackris on “The Today Show” this morning.

ANDREA MACKRIS, ACCUSER:  When this inappropriate conversation had happened the last time, he said it was going to be in person, and I felt extremely threatened for many reasons. 

THOMPSON:  O‘Reilly became a household name decrying the moral failings of some of America‘s leaders and its culture of victimization.  Today, he said he was a target and portrayed himself as a victim. 

O‘REILLY:  Bad day, bad day for me. 

THOMPSON:  But the married father of two never denied the conversations. 

(on camera):  He is the biggest money maker at Fox News that network analyst project to generate $348 million in ad sales this year, a multimedia brand name, radio, newspapers, books, and the Web, threatened by scandal. 

UNIDENTIFIED MALE:  You don‘t get that big without having a fairly decent sized mainstream audience.  And if you lose that mainstream audience, that‘s when the book sales go away, and that‘s when the ratings start to slide down. 

THOMPSON (voice-over):  And especially if, as O‘Reilly‘s attorney believes, there is a taped conversation. 

UNIDENTIFIED MALE:  You can say, oh, there‘s no such thing as bad publicity.  Yes, there is.  There is such a thing as bad publicity, and this is it. 

THOMPSON:  Bill O‘Reilly now spinning a defense in what may prove to be a no spin zone. 

Anne Thompson, NBC News, New York.

(END VIDEOTAPE)

BUCHANAN:  Tonight, we are going to lay out the facts for you and clarify the charges from both sides. 

Here to help us with the facts, Court TV anchor Lisa Bloom.  Also joining us, editor in chief of “U.S. News & World Report,” Mort Zuckerman, and defense attorney Joe Tacopina.

Now, Lisa, why don‘t you lay out for us, if you will, just pretty much what is at stake here and what is at issue. 

LISA BLOOM, COURT TV ANCHOR:  Well, Pat, there are two lawsuits.  I have examined both of them closely. 

The producer accuses O‘Reilly of sexual harassment, and he has sued her for extortion.  Now, let‘s take a look at the first lawsuit.  The accuser and plaintiff, Andrea Mackris, says that she and Bill O‘Reilly were out to dinner in May of 2002 discussing Mackris‘ career and her recent breakup with her fiancee when O‘Reilly allegedly offered her this interesting advice—quote—this is from her complaint.               

“Defendant Bill O‘Reilly said to plaintiff Andrea Mackris, ‘Just use your vibrator to blow off steam.‘  When Plaintiff reddened, defendant Bill O‘Reilly asked lewdly: “What, you‘ve got a vibrator, don‘t you?  Every girl does.”

Now, the complaint is replete with these kinds of allegations that O‘Reilly tormented her on a regular basis with discussion of phone sex, of particular graphic sexual acts that he wanted to engage in with her, including a shower in the Caribbean with a loofah, with a falafel.  I can‘t even explain that one. 

And, ultimately, it was too much for her and she had had it.  And that, Pat, is essentially her claims against Bill O‘Reilly.  I want to point out, she is still a Fox News employee.  She still works there.  She has not quit, and she has not been fired. 

BUCHANAN:  All right, Lisa, my understanding is that she left and she went to CNN in January. 

BLOOM:   Right. 

BUCHANAN:  And then, prior to that, she alleges that a lot of this occurred, this lewd and lurid talk, which is pretty much what it‘s about so far. 

BLOOM:   Right. 

BUCHANAN:  But then,in April, she meets with O‘Reilly and she comes back in June to work for Fox.  Now, how hostile can the environment be if she comes back? 

BLOOM:   Well, that‘s the argument the defense is going to make. 

But, as you know, Pat, a woman does not have to choose between her career and consenting to receiving this kind of graphic sexual talk from her boss.  I might add, it‘s not just talk.  She alleges that he was actually masturbating on the phone calls with her, and that she had to hear the sounds of that.  As you can imagine, that was distressing to her.  That‘s what she claims. 

She says that when she came back to Fox News in July of this year, she specifically said to him, in effect, look, you have got to knock it off, no more of the sex talk or I am not going to come back and work for you, that he agreed to knock it off.  And then she went back to her job at Fox News, where she was apparently very, very happy.

But, Pat, the key question here is about evidence.  Is there evidence

that supports these allegations?  Are there recordings?  Let‘s have a look

at two sections from the accuser‘s lawsuit.  First of all, the lawsuit

alleges: “Defendant O‘Reilly further stated: ‘We check into the room and we

would order up some room service, and, uh, and you definitely get two wines

into you quickly as I could get them into you.  I would get them into you

maybe intravenously, get those glasses of wine into you.‘”

But earlier in the lawsuit, compare this, Pat, the language reads differently—quote—“Defendant Bill O‘Reilly further sternly warned to the effect: ‘If you cross Fox News Channel, it‘s not just me, it‘s Fox News President Roger Ailes who will go after you.”

Now, reading between the lines, as we lawyers are trained to do, I think that first allegation where she talks about the sex talk, this Caribbean fantasy, she has got a tape.  She doesn‘t use the words, to the effect.  She is giving a direct quote, a long block quote in the complaint, Pat, including, “and, uh, and, um.”  It sure sounds like she got has a tape.  And if she has got a tape of him talking to her in that way, that very explicit talk about what he wants to do to her sexually, it‘s over for O‘Reilly.  That‘s my opinion. 

BUCHANAN:  Over for O‘Reilly.

Let‘s go to Mort Zuckerman now.

Mort, listening to what you just heard, and you have run news organizations, you run “The Daily News” and “U.S. News and World Report,” and you are sitting where Roger Ailes is sitting now.  How would you assess the situation and what exactly would you do, and if these allegations, and they are still allegations, are really substantially true, what do you do about O‘Reilly? 

MORT ZUCKERMAN, EDITOR IN CHIEF, “U.S. NEWS & WORLD REPORT”:  Well, I think the first thing I would think of is, what floor am I on and how quickly can I jump out the window? 

(LAUGHTER)

ZUCKERMAN:  You have a guy like Bill O‘Reilly who is the core of your network. 

BUCHANAN:  I shouldn‘t laugh.  But, yes, go ahead. 

ZUCKERMAN:  The core of your network. 

And let me just say, for these purposes, he also writes a column for “The Daily News.” 

BUCHANAN:  Right. 

ZUCKERMAN:  Part of his syndicated column and it‘s a very good column. 

Look, he is the star of the entire network, and the real issue is the one that Lisa mentions, which is, hey, what is the evidence?  And I would sit down with Bill and say, you have got to come clean with me.  Just tell me, is this true or is it not? 

(CROSSTALK)

BUCHANAN:  All right. 

(CROSSTALK)

BUCHANAN:  Hold it, Mort. 

ZUCKERMAN:  I think that is a critical question. 

BUCHANAN:  I want to follow with that. 

Suppose he says, look, it‘s a little exaggerated, a little over the top, but, yes, I talked to her.  And I might have got out of hand, and I might have had a couple of drinks when I phoned her up and stuff like that.  What do you do then? 

ZUCKERMAN:  Well, I think frankly—I don‘t know exactly what the law is in terms of what his liability is or that, in fact, of the network, but be that as it may, there are rules in every company that I know about sexual harassment, including rules I gather at Fox News, which apparently she never resorted to in terms of complaining to anybody about this. 

But if he violated those rules, I would say that if the evidence is such that he did that, then he has to be suspended pending further investigation.  You just cannot continue him working under those circumstances, sad as it is to say that. 

(CROSSTALK)

BUCHANAN:  All right, let me bring Joe Tacopina in here for a second. 

Joe, look, the fact that they sent—she came back to work there after the harassment had occurred, she sits down to dinner with him and says, I will come back, but you have got to stop that, and that she has never filed a complaint, does that not suggest that maybe, look, Bill O‘Reilly has got a point; maybe she is coming back here to tape some conversations and shake him down, 60 million bucks?

(CROSSTALK)

JOE TACOPINA, TRIAL ATTORNEY:  Well, that‘s—to me, there‘s two things that cause me to question the credibility of this allegation. 

One, $60 million, throw those numbers around in your head a little bit, Pat, and let that sink in, $60 million.  If everything Lisa just read is true, it is not worth $60 million. 

(CROSSTALK)

BLOOM:  That doesn‘t prevent her from asking for it, though.

(CROSSTALK)

TACOPINA:  Oh, yes, but you know what?

(CROSSTALK)

BLOOM:  ... settlement negotiations, Joe. 

TACOPINA:  It‘s absolutely outrageous, Lisa, that some lawyer would say, give us $60 million for hush money to make this go away. 

(CROSSTALK)

BLOOM:  Well, that hasn‘t been proved.  Let me just point out, that is allegation.  That‘s not proved, just like the sexual harassment claims are an allegation. 

(CROSSTALK)

TACOPINA:  All of this is allegations.

BLOOM:  That‘s right. 

TACOPINA:  But what you need here, what you need here, Pat, is corroboration.  If there are tapes—and, look, if there are tapes that support what she is saying. 

BLOOM:  And what if there are? 

TACOPINA:  Well, then Bill has a problem.

But, look, there has to be some quid pro quo.  There has to be some request on his part for something sexual from her or some type of harassment that affects her career.  He can‘t just say it on a personal basis. 

(CROSSTALK)

BUCHANAN:  Lisa, let me follow that up and just ask you the question.  I‘ve read all these allegations.  Look, it sounds very lurid and lewd and nasty talk on the phone, but it does not sound like her career has been damaged in any way, and, as Joe says, if you are talking $60 million, how seriously was she damaged if she came back to work there? 

BLOOM:  Well, you are not really looking at it the way that the law looks at it.  The law does not require damage to her career.  The law says that sexual harassment is unlawful if it‘s sufficiently severe or pervasive to negatively affect her work environment. 

And I am surprised at all of you gentlemen.  If your daughter is

working in an environment

TACOPINA:  Lisa, it‘s not a boy-girl thing.  Come on.

(CROSSTALK)

BLOOM:  If your daughter is working in an environment where her boss is calling her on a regular basis and mixing in legitimate work conversation with sexually explicit discussions of what he wants to do to her and how and when and with which objects, I think all of us would find that offensive.

TACOPINA:  Absolutely. 

BLOOM:  And would encourage her not to leave her job, but to stay in her job. 

(CROSSTALK)

TACOPINA:  What I would also encourage her to do, Lisa, is file the proper report that she signed and agreed to in the Fox employment manual.  She didn‘t do that. 

BLOOM:  She did that through her attorney. 

(CROSSTALK)

TACOPINA:  No, she didn‘t. 

BLOOM:  Of course she did.  That‘s what she hired Morelli for. 

(CROSSTALK)

BLOOM:  You think she should go up against O‘Reilly all by herself? 

TACOPINA:  And she continued to have these conversations.  She could have hung up the phone.  She kept picking up the phone, kept having these conversations.

BLOOM:  You try hanging up on your boss.  I don‘t think that‘s a realistic question.

Let‘s look at some more of the recent allegations cited in the lawsuit. 

BUCHANAN:  OK.

BLOOM:  Mackris says that in August of this year—quote—“O‘Reilly suggested that Mackris purchase a vibrator and name it.”  This guy is smooth, huh? 

And then on the phone with him, she claims—quote—“It became apparent that defendant O‘Reilly was masturbating as he spoke.”

Then in September, Mackris alleges that or said, “Next time, he‘ll come up to my hotel room and we will make this happen.”

So, when we say this was just a little bit of talk...

(CROSSTALK)

BUCHANAN:  Lisa, I‘m not saying it—all right, look I am not saying this is excusable behavior in any way.  It sounds lurid, lewd, and all the rest of it. 

BLOOM:  Offensive. 

(CROSSTALK)

BUCHANAN:  But what I would do, if that were my daughter, what I would do is tell her, quit that job, and I would go down there and punch his lights out or something like that.  And why didn‘t she file a complaint against the guy?

BLOOM:  What if that‘s the best job she has ever had? 

(CROSSTALK)

BLOOM:  Why should it be on her to leave?  Let him correct the behavior and let her keep her job. 

(CROSSTALK)

TACOPINA:  She never asked Fox News to investigate this on an internal basis, which she is required to do.

(CROSSTALK)

BLOOM:  That‘s what she hired her attorney to do in September. 

TACOPINA:  No, no, no.  That‘s after the fact.  That‘s after she sued.

BLOOM:  And, by the way, O‘Reilly has never denied any of these allegations. 

TACOPINA:  Lisa, you are wrong.  You‘re absolutely—she didn‘t file

the proper

(CROSSTALK)

BUCHANAN:  Joe, we are going to give you the last word right there. 

Thanks for joining us. 

Lisa and Mort, stick around.  We are going to take a look at O‘Reilly‘s extortion counterclaim when we come back. 

You‘re watching SCARBOROUGH COUNTRY on MSNBC.

(COMMERCIAL BREAK)

BUCHANAN:  An explosive sexual harassment allegation against powerful talk show host Bill O‘Reilly.  But he says it‘s a case of blackmail, shakedown, extortion.  We‘re giving you the real deal on both claims, so don‘t go away.

(COMMERCIAL BREAK)

BUCHANAN:  Let me now introduce Bob Kohn, author of “Journalistic Fraud.”

Bob, you have been on Bill‘s shows a number of times, as have I.  And I have been treated very fairly.  And so stick right with us.

But, Lisa, did you want to add something in here right now? 

BLOOM:  Well, you‘re right.  I think that we should talk about the countersuit, because I have looked at that carefully as well. 

BUCHANAN:  All right. 

BLOOM:  In the countersuit, Fox News and O‘Reilly are claiming extortion—let‘s have a look at that—“At meetings and during telephone conversations, defendants demanded $60 million in hush money,” they say, “to keep quiet and never once lowered this outrageous, extortionate demand.”

BLOOM:  Well, today O‘Reilly went on “Regis and Kelly Live” promoting his book, but he addressed these allegations. 

(BEGIN VIDEO CLIP, “LIVE WITH REGIS AND KELLY”)

O‘REILLY:  A short time ago, this came into Fox and they want $60 million.  Now, just think about that.  The 9/11 families didn‘t get anywhere near that -- $60 million because O‘Reilly did X, Y and Z.  And I‘m looking at this and I‘m going, enough.  Enough.  Now, if I have to go down, I‘m willing to do it.  But I‘ve got to make a stand.  I‘m a bit mouth on the air.  I‘m a big mouth off the air.  I‘m a big Irish guy.  Regis knows what I am. 

(CROSSTALK)

O‘REILLY:  But I am a person who will say, enough. 

KELLY RIPA, CO-HOST:  Right. 

PHILBIN:  So you said it. 

O‘REILLY:  And I said it, and we filed the lawsuit yesterday morning, and the lawyers said to me.  They said, this could be it for you.  And I said, OK. 

(END VIDEO CLIP)

BLOOM:  Well, he says he is a big Irish big mouth.

But, Pat, think about the hypocrisy in some of the allegations against him.  He went to Italy to meet with the pope.  According to the plaintiff, he said he couldn‘t wait to meet all of the hot Italian women once he got there.  He did a show with some porn stars on it.  And he said that he got hot looking at the porn stars and he couldn‘t wait to talk to Andrea, his producer, about it. 

This is a guy who espouses family values day after day, who blasts the porn stars who come on his show.  And then this is how he talks about them afterwards.  How can you justify that kind of hypocrisy? 

BUCHANAN:  Wait a minute, now.  Wait a minute.  Now, Lisa, I don‘t justify that kind of behavior, if true.  I don‘t justify it at all.  I would condemn it. 

But I will tell you this.  If Bill O‘Reilly says the $60 million demand that they keep hitting him with week after week after week is a shakedown and extortion, I am inclined to agree with him, quite frankly.  I think maybe both could be right here, could they not, Lisa? 

BLOOM:  Well, they could be legally.  That‘s true.  But I have got to tell you, I have yet to hear of a threat of a lawsuit being extortion.  I did a lot of sexual harassment cases myself, including against major celebrities.  And it was very, very common to say, we want X amount of dollars or we are going to file lawsuit.  That‘s not extortion.  That‘s the practice of law. 

BUCHANAN:  It may be the process of law, but in layman‘s language, it‘s blackmail and extortion and a shakedown. 

(CROSSTALK)

BLOOM:  Well, if you didn‘t do it, you got nothing to worry about. 

(CROSSTALK)

BUCHANAN:  All right, let me go—according to Fox News Channel, just three weeks before the lawyer‘s attempt, September 29 letter, and years after accuser Mackris alleged tribulation began, Mackris sent an e-mail to a friend at CNN who asked—quote—“How are things here?” 

Here is what she wrote: “To answer your question”—this is Mackris -

·         “Things are wonderful.  Things are: wonderful, amazing, fun, creative, invigorating, secure, well-managed, challenging, interesting, fun and surrounded by really good, fun people.  I‘m home and I‘ll never leave again.”

Now, Bob Kohn, I want you to tell me, you get that e-mail to her friend at CNN.  And this is three weeks, and this the very time she is shaking them down for $60 million.  What is your take? 

KOHN:  Yes, Pat, we are finally getting into some things that are in these lawsuits that are the other side of the story here. 

And I want to take issue with the so-called legal analysis that has just been provided.  The issue in this case is going to be whether the advances were welcomed, OK?  To prove sexual harassment, you have got to show that these advances were unwelcomed, OK?

Now, everything that I have read in this complaint indicates that she was welcoming what he was doing.  She worked with him four years.  Yet not once did she say anything to him during those four years about the foul language that he was using on a couple of dinners.  Then she says in the complaint, in the lawsuit, that she left to go to CNN.  Why?  Not because he was harassing her, but because she wanted more money. 

Then, when they have a conversation about her coming back to Fox News, they have a dinner.

BUCHANAN:  Right. 

KOHN:  And what she does to him at that dinner, this is before she goes back to work for him.  She does a Linda Tripp on him.  She tape records the conversation from beginning to end.  And that‘s what is in this lawsuit.  Now, Linda Tripp did this for political reasons. 

This woman apparently could be accused of doing this for purely monetary reasons, and remember who she is.  She is not just some layman out there.  She is an experienced TV producer. 

(CROSSTALK)

BLOOM:  Do you really that she wanted to engage in this kind of talk? 

I have got to tell you, on behalf of women everywhere, Bill O‘Reilly in the

shower with a falafel, that‘s not

(CROSSTALK)  

KOHN:  Listen, Lisa, you are not going to get away with that, Lisa, because when a woman is on a phone with a guy hearing things that she doesn‘t want to hear, she immediately hangs up. 

BLOOM:  Not if it‘s the boss.

KOHN:  She doesn‘t tape record the conversation. 

(CROSSTALK)

BLOOM:  She does if she thinks nobody will believe her. 

BUCHANAN:  All right, let‘s take a look.  Let‘s take a look.  This is a very big matter for Fox News and for cable news and certainly for O‘Reilly. 

Let‘s take a look at the empire Bill O‘Reilly has built over there at Fox.  His show averages 2.1 million viewers every single night, trumping “Larry King Live”‘s 1.3.  Advertisers pay $12,000 for one 30-second spot on “The Factor,” bringing in $30 million a year for Fox News Channel.  His Fox contract is only $4 million, but it‘s added to the $60 million Bill O‘Reilly pulls down yearly from book sales, ads, merchandise, and syndication fees.  And he has three best-selling books. 

KOHN:  Pat. 

BUCHANAN:  Yes. 

KOHN:  An argument can be made here that he is going to come out even better than before.  This is going to be a hotly contested case. 

And whether he wins or lose, you take a look at Dick Morris—I think

Martha Stewart even is going to be coming out on top of what she is.  And

he may come out of this even more popular.  He has not lost one newspaper

in all

(CROSSTALK)  

BUCHANAN:  All right, well, let me get Mort Zuckerman in here. 

Mort, you have heard both sides of this.  And it seems to me there‘s -

·         what‘s your—just give me your take. 

ZUCKERMAN:  Look, I don‘t know if the central charges here are true, but if they are true, it‘s going to be devastating for him. 

And, right now, the purpose of the litigation and the threat of litigation is because everybody knows that he would incur tremendous reputational damage, in fact, no matter which way this lawsuit comes out at this stage of the game. 

BUCHANAN:  Hasn‘t he already incurred it? 

(CROSSTALK)

ZUCKERMAN:  And that, it seems to me, is what has already occurred. 

(CROSSTALK)

BLOOM:  And, by the way, O‘Reilly was the one who ran to the courthouse and filed first.  And Fox News has had several other cases tossed out, like against Al Franken and Paula Zahn.  So even though they rail against frivolous lawsuits, they are usually the first ones to file. 

KOHN:  They have got to fight the P.R. war. 

(CROSSTALK)

BUCHANAN:  Let me go back to Mort, though.

Mort, it seems to me that people—and I think—and I think the word shakedown is perfectly legitimate here.  But have they not somewhat damaged their claim by playing their trump?  In other words, the damage to O‘Reilly‘s reputation has now been done.  You got up on Drudge that whole thing.  And so he‘s in a little stronger position than he was yesterday. 

ZUCKERMAN:  If it goes to court, I don‘t know what the potential damages were, but I can‘t imagine it‘s going to be anywhere close to $60 million, no matter what is approved in court.

So in this sense, the greatest leverage they had on him in terms of extracting the maximum amount of money was before this whole thing became public.

(CROSSTALK)

ZUCKERMAN:  Because the only real leverage they had on him was the reputational damage from having this splashed all over the media. 

(CROSSTALK)

ZUCKERMAN:  Now that that‘s done, I think he is going to have a very different kind of attitude towards any kind of settlement, and I can‘t imagine that the damages in court will be anything close to...

(CROSSTALK)

ZUCKERMAN:  In that sense, that‘s behind them. 

BUCHANAN:  All right, Mort, let me ask you this.  Given the fact that she has got this memo out there, given the fact that she comes back to work, given the fact that it looks like she is coming back to set him up, given the fact that she never filed any claim over there at Fox News, didn‘t hang up the phone, is there a chance that O‘Reilly going into court could beat her? 

ZUCKERMAN:  It all depends on what the evidence is.

If there are tape recordings of these conversations, there is going to be, in my judgment, some degree of guilt that is going to be affixed to him.  And then you are going to have to get to the issue of damages.  I don‘t know what the evidence is.  The implication from all of what we have heard and seen is that there are tape recordings. 

If there are tape recordings, then it‘s a very different matter.  Then, it seems to me, that he is going to have a real problem getting out of this lawsuit without some kind of penalty.  What that will be, in my judgment, is going to be nowhere close to what they would have have gotten had they settled this. 

BUCHANAN:  OK.  I think we are going to have to leave it right there. 

Lisa Bloom, Mort Zuckerman, Bob Kohn, thanks for joining us tonight.

Coming up, we are going to take a look at the jabs each candidate landed last night and what they need to do to pull out ahead with three weeks to go before this election—not even that. 

Stay with us.

(COMMERCIAL BREAK)

BUCHANAN:  The head-to-head debates are over.  But now the real battle begins.  What do John Kerry and George Bush need to do to make sure they come out ahead on November 2?  That‘s coming up. 

But, first, let‘s get the latest headlines from the MSNBC News Desk. 

(NEWS BREAK)

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome back to SCARBOROUGH COUNTRY.

BUCHANAN:  Senator John Kerry ignited a nasty personal row last night when he brought up the daughter of Vice President Cheney in answering a question as to whether people choose to be homosexuals. 

(BEGIN VIDEO CLIP)

SEN. JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE:  We‘re all God‘s children, Bob.  And I think if you were to talk to Dick Cheney‘s daughter, who is a lesbian, she would tell you that she‘s being who she was, she‘s being who she was born as.  I think if you talk to anybody, it‘s not choice. 

(END VIDEO CLIP)

BUCHANAN:  MSNBC senior political analyst Lawrence O‘Donnell joins us, along with former ABC News correspondent Bob Zelnick, who is chairman of the Journalism Department at Boston University. 

Bob, let me start with you.  I will throw the same question to both of you.  Do you think as a correspondent who covered politics and who has watched the political scene for a long time, do you think Kerry crossed the line there, first, and, secondly, what do you think the political reaction to that will be? 

BOB ZELNICK, FORMER ABC NEWS PENTAGON CORRESPONDENT:  I think he did cross the line. 

I don‘t think there was any reason to bring personal relations into this, not that there was any great secret about it in the first place.  It was just an utterly tasteless remark and was meant to exacerbate the difference between Cheney and the president on the constitutional amendment that President Bush proposed. 

I think the importance of it, look what we are talking about a day after the debate.  Right after the debate, the feeling was that it was pretty much in line with the other two.  Maybe Bush did a little bit better than he did in the second and materially better than he did in the first, but basically there wasn‘t anything spectacular about it, nothing that changes the scene. 

Today, we are all talking about this.  And then after talking about this, we are saying, well, look, when it came to those kinds of questions for which Kerry could not prepare a modular-type response, questions about religion, questions about homosexuality, questions about strong women in their lives, he failed.  He was less good.  He was less sincere.  There seemed to be less conviction to what he was doing than there was to the natural responses of George W. Bush. 

BUCHANAN:  All right. 

Let me get Lawrence.  Lawrence, I was on MSNBC last night.  Joe Scarborough called in.  I was jolted by it.  Joe was really jolted by it.  I looked over at Chris Matthews.  And Howard Fineman says there was an audible gasp in the press room when they were watching it when the name came out. 

Why do you suppose Kerry did that?  Do you think he crossed the line? 

And what‘s your take on the political reaction?

LAWRENCE O‘DONNELL, MSNBC SR. POLITICAL ANALYST:  I don‘t think he crossed the line. 

There‘s a Gallup poll that indicates that his win in the third debate was just about the same size as his win in the first debate, enormous win, 52-39.  Now, that‘s who is judging the debate.  It doesn‘t matter what we think.  And I think one of the reasons why the Washington press corps gasps in those kinds of moments is that we are hanging quite literally on every single word that is spoken in that debate.  And we‘re wondering which one is—how is it going to turn at any given moment. 

And, also, there‘s an incredible, incredible conservatism, not political conservatism, but behavioral conservatism in the Washington press corps.  And so lines like that jar them.  They didn‘t seem to—that line did not seem to jar the public, who gave a huge win to Kerry in the polling on this debate. 

(CROSSTALK)

BUCHANAN:  I want to first—let‘s get Lynne Cheney.  She reacted with harsh words for Senator Kerry.  Then there was reaction to her.  Let‘s hear Lynne Cheney first, the vice president‘s wife. 

(BEGIN VIDEO CLIP)

LYNNE CHENEY, WIFE OF VICE PRESIDENT CHENEY:  This is not a good man.  This is not a good man.  And, of course, I am speaking as a mom and a pretty indignant mom.  This is not a good man.  What a cheap and tawdry political trick. 

(END VIDEO CLIP)

BUCHANAN:  All right. 

Now, here‘s John Edwards‘ wife, Elizabeth.  She‘s responding to Lynne Cheney during a radio interview today. 

OK.  I guess we are going—we don‘t have that right here. 

Lawrence, your take on Lynne Cheney.  Is that a natural reaction of a mother?  Again...

(CROSSTALK)

O‘DONNELL:  That‘s a 100 percent political reaction, 100 percent.  She was sent out there to say that, and she did it. 

Her response has no substance.  Let‘s remember what the question was.  There was a question to the president of the United States and to his challenger.  Do you think homosexuality is a choice?  The president‘s answer was one short sentence:  I don‘t know.  Then he changed the subject. 

John Kerry gave you several sentences of his thoughts about it, and he says he doesn‘t think it‘s a choice.  He actually answered the question.  Now, to Lynne Cheney, what is the answer?  Does she have a thought?  Does she think her daughter‘s sexuality was a choice? 

(CROSSTALK)

BUCHANAN:  She does not think her daughter‘s sexuality ought to be brought up by a presidential candidate in a national debate. 

O‘DONNELL:  It wasn‘t brought up by a presidential candidate. 

(CROSSTALK) . 

O‘DONNELL:  It was brought up by Bob Schieffer. 

(CROSSTALK)

BUCHANAN:  Schieffer didn‘t ask about Cheney‘s daughter. 

O‘DONNELL:  Let‘s get to the question.  Is homosexuality a choice?  We have a president who says, I don‘t know.  We have someone who is running for the job who gives you an answer, says, no, I don‘t think it‘s a choice. 

And he gives an example.  Now, we‘re arguing about

(CROSSTALK)

BUCHANAN:  Was the example

(CROSSTALK)

O‘DONNELL:  Was the example a correct example?

BUCHANAN:  Bob Zelnick, was the—go ahead, Bob.

ZELNICK:  I think, with all due respect to Larry, I think this was a time bomb.  I don‘t think that you can judge it by the Gallup poll that was taken instants after the debate ended. 

I think this is a subject that people are talking about today.  I think there is widespread abhorrence of the use of Lynne Cheney‘s daughter in this context by that candidate.  And I think it‘s something that will hurt him and resonate in the days ahead. 

BUCHANAN:  All right, now, both of you, hold it a second.  We do have now—we do have the reaction.  Now, this is John Edwards‘ wife, Elizabeth, today. 

(BEGIN AUDIO CLIP)

ELIZABETH EDWARDS, WIFE OF SENATOR JOHN EDWARDS:  I think it indicates a certain degree of shame with respect to her daughter‘s sexual preferences that I‘m certain makes her daughter uncomfortable.  And that makes me very sad on a personal level.”

(END VIDEO CLIP)

BUCHANAN:  All right, Bob Zelnick, it seems to me that, well, of course—I agree with Larry to some extent.  There certainly is an element of politics in these responses. 

But what is your take if this issue continues, as it‘s going to, if you‘ve got the wife of the vice president and the wife of the vice presidential candidate, one of them attacking John Kerry on a personal basis, and Elizabeth, in effect, I think, slurring to a degree the wife of the vice president? 

ZELNICK:  Well, first of all, if I had been an adviser to the Kerry-Edwards campaign, which I must add is an unlikely contingency...

(LAUGHTER)

ZELNICK:  ... I would not have advised Mrs. Edwards to make that statement.  I would say, drop it, say that the candidate has already responded to the other side.  Drop it.  Leave it there.  Don‘t give it a day‘s extra life.  I think it was a politically poor choice for her to do that. 

BUCHANAN:  All right. 

Lawrence, here is what I said on MSNBC.  I said, if I were Kerry and I saw the reaction, maybe he just made a mistake or something like that. 

Maybe he shouldn‘t have

(CROSSTALK)

ZELNICK:  Exactly. 

BUCHANAN:  I would have gone out the next morning and said, look, let just me say on this issue, if they feel offended by this, I do apologize.  I meant to give an example.  I had heard the vice president speak about this and no offense was meant.  And I think you would get beyond it, but to get in a fight over this, I think...

O‘DONNELL:  I think we are beyond it, Pat. 

I think Bob is right, that the right thing now for the Kerry side of it is it to drop it.  I don‘t think Mrs. Edwards should have said a word about it today. 

But, look, Lynne Cheney is a politician.  Let‘s not forget that.  This is not just any political wife.  And the question on the Republican side now remains unanswered.  They want to go forward with the answer of, I don‘t know if homosexuality is a choice.  It‘s an important question, because it has to do with all sorts of rights that are under discussion now as to whether they get conferred on these people or not and if it is a...

(CROSSTALK)

BUCHANAN:  Bob.

ZELNICK:  Well, I think the president—I think the president gave a more complete answer than that. 

He said he didn‘t know whether it was a matter of choice or not, but the rights of all people ought to be respected.  And I think that is a sensible approach.  I don‘t think he has to say anything more.  I don‘t think he has to resolve deep medical or psychological problems on that kind of forum. 

O‘DONNELL:  Well, he could ask a gay person.  And I think that was Kerry‘s point.  It‘s pretty clear that this president has never had a conversation with any gay American anywhere on the question of, is this a choice? 

BUCHANAN:  The Log Cabin club has been into visit. 

(LAUGHTER)

O‘DONNELL:  He‘s never—you know, he—he wouldn‘t even know where to begin.  He‘s lost on the subject.

BUCHANAN:  He talks to them.  He doesn‘t talk to me. 

All right, gentlemen, stick around, because, coming up, will John Kerry be a strong commander in chief or would his administration be taking orders from the United Nations? 

Stick around. 

(COMMERCIAL BREAK)

BUCHANAN:  John Kerry says America should pass a global test before going to war.  The president says this means Kerry would ask other countries permission before we can wage war. 

Here‘s their exchange last night. 

(BEGIN VIDEO CLIP)

KERRY:  I have never suggested a test where we turn over our security to any nation.  In fact, I‘ve said the opposite: I will never turn the security of the United States over to any nation.  No nation will ever have a veto over us...

BUSH:  In 1990, there was a vast coalition put together to run Saddam Hussein out of Kuwait.  The international community, the international world said this is the right thing to do, but when it came time to authorize the use of force on the Senate floor, my opponent voted against the use of force. 

Apparently, you can‘t pass any test under his vision of the world. 

(END VIDEO CLIP)

BUSH:  We are back with Lawrence O‘Donnell and Bob Zelnick. 

Polls reveal the war on terror and the war in Iraq are the most important issue to half of voters.  Who has got the upper hand? 

Lawrence O‘Donnell, I want to ask you, Kerry came back to that, I believe, in his closing remarks:  Never will I entrust the security of this country to any other nation. 

Now, this does suggest that the global test phrase was a mistake and Kerry wishes he had not made it. 

O‘DONNELL:  The global test phrase was pure English in an English sentence that a lot of people, including, I suspect, Pat Buchanan, are pretending not to understand.  He said very clearly in declarative sentences...

BUCHANAN:  Explain it to us.  Explain it. 

(LAUGHTER)

O‘DONNELL:  He said very clearly, and he said it again last night, that he will never allow anybody to have a veto.  He doesn‘t need anyone‘s approval. 

(CROSSTALK)

BUCHANAN:  What does a global test mean? 

O‘DONNELL:  He said that it‘s a proof.  It‘s can you prove to the world why you did it, which the United States, for example, now cannot prove to the world why it went to Iraq.  In fact, its reason for going has been proven untrue. 

(CROSSTALK)

BUCHANAN:  But, Bob Zelnick, the president‘s answer was, in 1991, the president of the United States, his father, had a global coalition, Russians, Chinese, Syrians, Saudis. 

O‘DONNELL:  That‘s a change of subject. 

BUCHANAN:  It is not.  He had a global coalition and Kerry voted against the war. 

ZELNICK:  I think that is one of the strongest points against John Kerry, and I am surprised it took George W. Bush so long to make it effectively. 

If Kerry had been making policy in 1990, we would not today be parsing the pages of weapons inspectors‘ reports to see whether Saddam Hussein had nuclear weapons or other weapons of mass destruction.  We would be living in their shadow.  He would be a colossus standing astride the Straits of Hormuz dominating Iraq, dominating Iran, dominating Saudi Arabia, controlling the world‘s oil supply, and John Kerry and the people who voted with him would have themselves to blame. 

O‘DONNELL:  Here‘s what we don‘t know, Bob.  What happened then was 45 United States senators voted against the resolution to go into the Gulf War for the first President Bush. 

ZELNICK:  And not one of them should be president. 

(CROSSTALK)

O‘DONNELL:  What they were saying, including Sam Nunn, conservative Democrat, chairman of the Armed Services Committee, was, let‘s give the sanctions more time.  Let‘s try to squeeze this guy.  Let‘s try to move him another way.  Let‘s not do this right now.

So what you don‘t know is whether John Kerry or others would have voted for some kind of resolution 90 days later or six months later or a year later.  So it is very unlikely, in fact, that nothing would have happened. 

(CROSSTALK)

O‘DONNELL:  It was a question of timing, just like this

(CROSSTALK)

BUCHANAN:  Bob, we have got to go to a new issue now. 

The president says he consults a higher authority when making those tough decisions.  He expanded on that idea last night. 

Let‘s listen. 

(BEGIN VIDEO CLIP)

BUSH:  First, my faith plays a lot—a big part in my life.  And that‘s, when I answering that question, what I was really saying to the person was that I pray a lot.  And I do. 

I believe that God wants everybody to be free.  That‘s what I believe. 

And that‘s been part of my foreign policy.  In Afghanistan, I believe that the freedom there is a gift from the Almighty.  And I can‘t tell you how encouraged I am to see freedom on the march. 

And so my principles that I make decisions on are a part of me, and religion is a part of me. 

(END VIDEO CLIP)

BUCHANAN:  Bob Zelnick, to me, and the president is clearly not as smooth or polished as Kerry or a debater he is.  I see in George Bush somebody with some real heart and he‘s very impassioned about these things, and he authentically and genuinely believes.  And I think this goes over very well with the country.  Your take? 

ZELNICK:  Well, I don‘t think George Bush‘s sincerity has ever been questioned by anybody.  I don‘t think his commitment has been questioned. 

I think the questions that have been raised have been questions of judgment, not only about entering the war against Iraq, but also the strategy and tactics used to subdue the country once the military part of the operation was accomplished.  So I think George Bush reinforced last night the opinion that many people had about him, that he is a man of great conviction and great faith. 

BUCHANAN:  All right.  John Kerry looks like an Episcopal priest up there.  You know how he is.  And George Bush does look like very much a man of the people, I think, and somewhat of a more basic, if you will, Baptist faith or Protestant faith from the South.  And I think that‘s very appealing. 

What was your take on that exchange? 

(CROSSTALK)

O‘DONNELL:  Well, but most Americans do not have that kind of simpleminded faith. 

George Bush‘s God is a very strange God.  This is a God who wants everyone to be free.  That‘s a very, very peculiarly frustrated God.  That is a God that has been apparently frustrated for centuries in George Bush‘s imagination. 

BUCHANAN:  Ever since the Garden of Eden. 

O‘DONNELL:  Well, this is a God—this is also a God who gives the gift of freedom.  He says that‘s a gift from the almighty, that the Afghan people got this gift from the almighty this year. 

What was George Bush‘s God doing to those people up to now?  You see, that‘s the problem with this.  For very simpleminded religious people, that stuff works.  That is a minority of the American population, who have a more sophisticated view of God, those who accept it. 

BUCHANAN:  Your take on whether Mr. O‘Donnell here, Bob, has a more sophisticated view of God than the president. 

(LAUGHTER)

ZELNICK:  Well, I gave up trying to interpret both God and O‘Donnell a while ago. 

(LAUGHTER)

ZELNICK:  And I will simply say that what—George Bush‘s view of God‘s will may be something that lives and beats within his breast.  I think we are perfectly capable of judging his policy decisions on their merits and on their impact, and I think that‘s the way it should be discussed. 

(CROSSTALK)

O‘DONNELL:  The danger of simplification is that God wants him to do what he is doing.  God wants people to be free; therefore, I, George Bush, will free them.  That‘s a dangerous political implication.

BUCHANAN:  Yes.  OK.

Don‘t go away.  We‘ll get final thoughts from Lawrence and Bob when SCARBOROUGH COUNTRY returns.

(COMMERCIAL BREAK)

BUCHANAN:  Gentlemen, final thoughts. 

Bob, I want to ask you first.  The president went to the back of the plane for the first time today to talk to reporters.  Apparently, he‘s miffed by these polls that show he did not win the debate or didn‘t come close.  What do you think he is going to do these next three weeks? 

ZELNICK:  I think he is going to try to paint Kerry as the Massachusetts liberal who resides on the left bank of the mainstream of American politics, no more Mr. Flip-flop. 

And I think he has got a hard sell in the next couple of weeks.  I think, personally, the outcome of the election will be determined by what happens in Iraq during the next couple of weeks.  I would just add that in terms of satisfaction with the debates, if I were Kerry, I would be very satisfied.  It took a moribund campaign, turned it into a viable campaign that will be decided between now and Election Day, not one that was decided at the conventions. 

BUCHANAN:  I think that‘s right. 

(CROSSTALK)

BUCHANAN:  I think Kerry was dead.  I think he is alive and well and it‘s a race to the finish. 

O‘DONNELL:  Yes, I agree with Bob completely. 

Kerry, according to the Gallup poll, won three debates in a row.  It‘s very difficult to see how the country then votes for a president who lost three debates in a row.  That‘s what the president has to convince them to do. 

BUCHANAN:  I think Bob is right.  I think he‘s going to go—it‘s the old power sweep of the Republicans.

O‘DONNELL:  Yes. 

BUCHANAN:  Massachusetts liberal, soft on everything. 

O‘DONNELL:  Yes. 

BUCHANAN:  OK, Lawrence, Bob, thank you both for being here. 

And see you again tomorrow night, folks. 

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

END   

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