updated 11/10/2004 11:56:16 AM ET 2004-11-10T16:56:16

Guest: Dean Johnson, Daniel Horowitz, Justin Falconer, Sanford Marks, Sam Donaldson

ANNOUNCER:  DEBORAH NORVILLE TONIGHT.

DEBORAH NORVILLE, HOST:  Bombshell in the Scott Peterson trial.  Juror No. 7 is out.  What‘s going on inside the jury room?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I think it‘s a predictable thing that there would be impasses because this is a very, very, very difficult case.

(END VIDEO CLIP)

NORVILLE:  Deadlock?  Hung jury?  Could Scott Peterson‘s five-month-long murder trial be headed back to square one?  The families on both sides can only watch and wait.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I think that the families are just worrying, worrying, worrying.

GEORGE WALKER BUSH, PRESIDENT OF THE UNITED STATES:  I really didn‘t come here to hold the office, just to say, Gosh, it was fun to serve.  I came here to get some things done.

(END VIDEO CLIP)

NORVILLE:  George Bush‘s second-term agenda.

(BEGIN VIDEO CLIP)

BUSH:  ... Social Security and tax reform, moving this economy forward, education, fighting and winning the war on terror...

(END VIDEO CLIP)

NORVILLE:  Tonight, veteran newsman Sam Donaldson weighs in.  From Iraq to the Supreme Court, what will be W‘s legacy?

(BEGIN VIDEO CLIP)

BUSH:  I earned capital in the campaign, political capital, and now I intend to spend it.

(END VIDEO CLIP)

ANNOUNCER:  From studio 3K in Rockefeller Center, Deborah Norville.

NORVILLE:  And good evening.  Tonight, there is yet another twist in the Scott Peterson murder trial.  Juror No. 7 has been dismissed.  She‘s described as an Asian woman who appears to be in her 50s or early 60s.  She worked for Pacific Gas & Electric and said she believed—could believe that Scott Peterson was falsely accused and didn‘t see his motive.  The lady called herself a crusader.  Well, now juror No. 7 has been replaced by the first alternate.  A white woman, a mother of four, she worked at a bank but said she would quit her job in order to serve on the jury.  Her brother has been in and out of prison, and her mother is a drug counselor.

So what do all of these changes on the jury mean?  With the latest from the courthouse, joining me now, Dan Abrams NBC News chief legal correspondent, also the host of MSNBC‘s “THE ABRAMS REPORT.”  Also in Redwood City, California, criminal defense attorney Daniel Horowitz and former San Mateo County, California, prosecutor Dean Johnson.

Dan Abrams, I want to start with you first.  Rumor is that this crusading lady crusaded right over and did her own independent research on the case.  Is that what got her booted?

DAN ABRAMS, HOST, “THE ABRAMS REPORT”:  Yes.  It seems pretty clear she did independent research, must have been before these jurors were sequestered, probably came out in the context of the deliberations, where she dropped something, where there was a discussion about some piece of evidence and she said something, I—you know, maybe something like, I was on the Internet, and I saw that X, Y or Z.

We don‘t know exactly what it is she said, but it‘s clear that she did something that she wasn‘t supposed to, and the judge came back and read the jurors an instruction he‘d read them before, reminding them, You are only, only to consider evidence that you heard in this courtroom, hoping that this isn‘t going to happen again.

NORVILLE:  You know, here‘s what I don‘t understand.  Who dropped a dime on her?  How do they know that she let this slip, if jury deliberations are privileged?

ABRAMS:  Well, a juror, probably the foreperson, sent a note out to the judge, describing what had happened.  Remember, the foreperson is a lawyer, among other things.  So what probably happened is, she made a comment, that lawyer or someone else said, Wait a second.  You weren‘t supposed to do that.

NORVILLE:  Yes.

ABRAMS:  That‘s not supposed to be part of our deliberation process.  The judge got the note.  What he probably did is also questioned each and every one of the jurors as to what they heard from her, whether they felt they could still be fair, whether they could forget, basically, what she had said, et cetera, to make sure that this jury could move forward, and the judge is doing just that.

NORVILLE:  And we have to assume that that, indeed, was the case.

Dean Johnson, you were inside the courtroom when all of this happened late this afternoon.  First of all, what was the reaction on Scott Peterson face, and his legal team?

DEAN JOHNSON, FORMER SAN MATEO COUNTY PROSECUTOR:  Well, you know, they seemed relatively happy.  But the thing I noticed is, this prosecution team, which is very normally stoic in the courtroom, were just grinning ear to ear.  And I take it from that that they believe that taking juror No. 7, who was possibly a crusader for the defense, off the jury, and putting on the new alternate No.2 that we‘ve all code-named “Strawberry Shortcake,” was really an advance for them.

NORVILLE:  Why have you named her Strawberry Shortcake?

JOHNSON:  Because she has such distinctive red hair.

(LAUGHTER)

NORVILLE:  I also understand she‘s been a bit of a character just sitting there, and a bit of a visual spectacle herself.

Daniel Horowitz, you are a defense attorney.  Put yourself in Mark Geragos‘s head right now.  You‘ve got one juror who may have, you could argue, polluted the other jurors on the panel.  It looked 24 hours ago like this was going to be a hung jury.  Is he optimistic or is he thinking, This one‘s going down the tubes on me?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Well, Deborah, I said hello to Mark today and I checked out his mood.  I have gotten to know him over these past five months.  He‘s feeling very good.  You know, as Dan has commented during the day out here at the courthouse, this jury seems to be focusing in on evidence that might be used to show premeditation, so maybe the prosecution jurors were getting some traction.

Even if this dismissed juror was pro-defense, this new juror, Deborah, is even better for the defense.  She is a pot stirrer.  She‘s a young woman who on the last day of deliberation, dyed the top of her already dyed fuchsia hair a bright red.  So we call her Strawberry Shortcake with a cherry on top.

(LAUGHTER)

HOROWITZ:  She‘s sending a message that, I am not going to join any group.  I‘m my own person.  I dance—I dance to my own drummer.

JOHNSON:  Daniel, I disagree with you on that.

NORVILLE:  Yes, Dan Abrams, let me go to you because I want to know what happens now.  The judge said, You start from scratch.  It‘s back to square one for deliberations.

ABRAMS:  Well, that‘s right.  Remember, the jury is supposed to be deciding this case as a unit, one voice from these 12 jurors.  And so now that one of those pieces is gone and there is a new pie there, they have to start again because you can‘t have 11 people and then 1.

Now, with that said, that‘s theoretical.  As a practical matter, they are not going to need to deliberate for five days to get to the point where they are now.  They have a very good sense of where everyone stands on this case, except for this juror.  So even though, as a technical matter, these jurors are to begin deliberations again, you know, as a realistic matter, they will move far more quickly than they have for the first five days.

NORVILLE:  Dean, give me a sense of what will happen tomorrow in the jury deliberation room when Strawberry Shortcake comes in.

JOHNSON:  Well, I think when Strawberry sits down, they‘re going to go around the room.  They‘re going to say, Look, these are the issues we‘ve looked at.  And in order to integrate her into the deliberations, they‘re going to say, What issues do you have?  What exhibits would you like to look at?  And I think they‘re going to go back to what has thus far been a very systematic examination of this evidence.

One thing that will be very telling is whether they continual along what‘s been almost a chronological line, retracing, as it were, Laci Peterson‘s steps, or they go back over other things.  If they go back and start all over again, looking at things that they have passed in the previous deliberation, that would be the Strawberry Shortcake factor.  That will be dealing with the issues that she may have raised and may have brought to the table herself.

NORVILLE:  And Dan, you think they‘re looking at issues that speak to premeditation, which would be first-degree murder?

(CROSSTALK)

NORVILLE:  Let me go to Dan Abrams first.  I forgot we got two Dans here.  Sorry.  Abrams first.

ABRAMS:  I think—look, it is very tough to know what it means.  But if you look at all the elements that they asked for yesterday, all of them have something to do with premeditation—the Amber Frey tapes...

NORVILLE:  Right.

ABRAMS:  ... that‘s one of the key issues of premeditation, the cement anchor, Scott Peterson‘s fishing licenses, et cetera.  Now, what does that mean?  You know, it‘s impossible to know if that means that they consider that an element, as Daniel Horowitz believes, a necessary element to prove murder, or if they‘re debating between first and second-degree murder.  Who knows?

And let me add one more point about this juror that I think is helpful to the defense.  And that is when Scott Peterson cried in that interview on “Good Morning America,” which many believed were sort of crocodile tears, she cried in that jury room—in the jury box, as well.  Now, she‘s cried at other times in this case, but I think that that is helpful to the defense to know that she was not automatically dismissing those tears, that she, too, became emotional, watching Scott Peterson describe his relationship with Laci.

NORVILLE:  Dan Horowitz, go ahead.

HOROWITZ:  You know, I think that‘s an important point.  Scott Peterson is probably the most hated man in America.  If this juror somehow can see the humanness in him and put aside all of that negative emotion from the Amber tapes, the prosecution has a tough row to hoe because there really are big logical gaps in the evidence and she could find reasonable doubt, if she doesn‘t have that hatred of Scott that most of the other jurors to some degree might be feeling.

JOHNSON:  Oh, Daniel, I disagree with you entirely.  This is a 30-something woman who is a mother of four sons.  She is as closely identified with the victim in this case as she possibly can be, and she‘s not going to cut this guy any slack.

HOROWITZ:  Dean, you said the words, four sons.  Mother of four sons.

NORVILLE:  Yes, but I‘d emphasize the mother part over here.  You know...

(CROSSTALK)

JOHNSON:  Scott is not like her son, Scott is like the guy who cheated on her when she was a kid.  And she is as close to Laci Peterson and she identifies as closely to Laci Peterson as anybody on that jury.

HOROWITZ:  Then why did she cry when Scott‘s tape was played?

JOHNSON:  Because she‘s very emotional, which is also a blow to the defense because remember Mark Geragos‘s...

HOROWITZ:  Oh, no.

JOHNSON:  ... theme: You got to separate emotion from evidence and decide this case without emotion.  She‘s not going to do that.

NORVILLE:  Well, we‘re going to wait and see what happens.  There‘s a new person on the jury.  Now 12 people begin almost from scratch to decide Scott Peterson‘s fate.  Dan Abrams, thanks for being with us.  Dan Horowitz, Dean Johnson, thanks to you, as well.

We‘ll take a break.  When we come back, we‘re going to be joined by a former juror from the Peterson case.  He‘ll tell us what he knows about the people who were and now are deciding Scott Peterson‘s fate.

And then a little bit later on, long-time Washington correspondent Sam Donaldson joins me with his unique insights into what we can expect in a second Bush administration.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP - December 2003‘)

UNIDENTIFIED MALE:  Is that correct, Mr. Peterson, you‘re pleading not guilty to two charges of murder plus the—denying the special allegations?

SCOTT PETERSON, CHARGED WITH DOUBLE MURDER:  That‘s correct, Your Honor.  I am innocent.

(END VIDEO CLIP)

NORVILLE:  That was Scott Peterson‘s plea last December.

Now back to the latest courtroom drama—a dismissed juror, and alternate now in her place.  What do we know about the woman who was let go?  My guest, Justin Falconer, is an insider on the Peterson case.  He was formerly known as juror No. 5 until he was dismissed by Judge Delucchi for talking with Laci Peterson‘s brother.  He joins us tonight, as does Sanford Marks, a psychologist and jury consultant who has worked for defense in trials, including the Timothy McVeigh case and the trial of William Kennedy Smith.

I thank you both for being here.  Justin, let me start with you first. 

What do you remember about the woman we all know as No. 7?

JUSTIN FALCONER, DISMISSED PETERSON JUROR:  She was a really friendly woman.  She was really nice.  She was very open-minded, very intelligent, very professional.  And I really enjoyed her company while I was there.  She was one of the people that I talked to.  She was in a clique of a lot of the girls that liked to go out and have lunch together.  I usually spent some time with—my time with juror No. 6.  We‘d go to lunch together. 

But on occasion, we‘d have lunch together and always talk in

(UNINTELLIGIBLE) ready room.  She seemed very friendly, seemed very open-minded, and I enjoyed my time with her.

NORVILLE:  She described herself during the voir dire as someone who was a “crusader,” and she said she couldn‘t be persuaded by other jurors.  Can you imagine anything about the woman you knew during that time on the jury service that would have caused her to become a problem such that she would have to be removed by the judge?

FALCONER:  You know, I think what the question is, is that, you know, these jurors are being asked to put somebody to jail for the rest of their lives or possibly put them to death.  I think what that shows is that she had a lot of questions that she needed answers.  And I think that the prosecution either didn‘t answer those questions or there was just—it was too vague, that she had to go out on her own and find these answers.  And I think that‘s what happened.

I think she took it upon herself possibly—you know, possibly to go out there and find out what—you know, the answers to these questions, her questions were.  And I think it‘s unfortunate that she did that.  She shouldn‘t have done that, obviously, and she could have very likely caused a mistrial, which I‘m sure would have upset all the jurors that were in there.

But you know, I think it goes to show that, you know, obviously, everybody in this jury is concerned.  They are looking at all the facts.  They want as many facts as they possibly can.

NORVILLE:  Yes.

FALCONER:  And where there‘s questions, you know, unfortunately, this particular juror went out on her own to try to get answers.  But...

NORVILLE:  But that is so totally the wrong way to go for answers.

FALCONER:  Absolutely, it is.

NORVILLE:  Sanford Marks, I mean, what must be going through the other jurors‘ minds right now?  They‘ve got to start back at square one because jury deliberations begin anew, as the judge said.

SANFORD MARKS, JURY CONSULTANT/PSYCHOLOGIST:  Well, that‘s right, theoretically.  Of course, they‘re certainly not going to go back and start deliberations all over again.  I‘m certain what‘s going to happen is the foreperson more likely than not will tell this new juror what they‘ve all been talking about, what the opinions are amongst many of the other jurors.  And if he does the right thing, he‘ll ask the new juror No. 7, you know, what her feelings are towards the issues.  And then they‘ll begin again, starting at the evidence, looking at the evidence and trying to answer questions that other jurors may have.

NORVILLE:  OK.  So—but the juror that is now in place has not seen any of the additional evidence that the jury has asked for during their five days of deliberations.  If she has questions about this evidence, they have to have that evidence brought back in, whether it‘s the boat or replaying the tapes or what have you, don‘t they, Sanford?

MARKS:  Well, that‘s correct.  And I think the only evidence that‘s really missing in the jury room now, of course, would be the boat.  The rest of the evidence that they‘ve asked for, I don‘t believe that it‘s been removed from the jury room.  So it‘s still there for them all to look at.

FALCONER:  I believe, too—I believe she saw the boat.  If I recall correctly, they took all the jurors out to see the boat.  So it wasn‘t just the ones deliberating, but also the alternates.  I heard that.

MARKS:  I think you‘re right, Justin.  And I think that—I heard that the alternates were also there at the viewing of the boat yesterday.  That‘s correct.

NORVILLE:  What is the risk now to getting a verdict in this case?  Because one juror has been removed, a new one has come in.  Does that change the complexion of the jury, so that if they were moving in a certain direction, that movement is now lost, whether it was toward guilt or innocence or a hung jury?

MARKS:  I don‘t think the movement is lost.  It all depends—you know, you get into the tea leaf thing now.  But it all depends as to how many people of the 11 original jurors feel more inclined to vote guilty versus not guilty.  If there‘s a large percentage—or let‘s just assume that this one juror that was removed was stubborn and obstinate in her belief that, you know, I want to see more, and I want to see more, and up until then, he‘s not guilty, and the others say, No, no, we have enough, and we all believe he‘s guilty, I don‘t think the momentum is lost.  But again, it‘s going to depend on the viewpoint of this new juror, No. 7 now.

NORVILLE:  And Justin, what can you tell us about the woman who‘s now known as No. 7, used to be alternate No. 1?  We know she‘s a woman in her 30s, she‘s a mother of four, and that she wanted to serve on the jury so badly, she told the judge, Look, I know I‘m not going to get paid.  I will deal with it.

FALCONER:  Yes, that‘s dedication.

MARKS:  She...

NORVILLE:  Is it dedication or is it curiosity?  I mean, it kind of makes you wonder.

FALCONER:  I think it‘s a little bit of both.  I think it‘s a little bit of both in her case.  She‘s a very friendly, outgoing woman.  She definitely speaks her mind.  She‘s opinionated.  And I think it‘s going to be interesting.  Depending upon where her stance is, I have a feeling she‘s pretty pro-defense, at this point, from what I‘ve heard.  I can‘t say that for sure.  But I think she‘s—you know, she‘s pretty opinionated, and I think she‘s pretty—I mean, this is a woman with four sons.  I think she‘s going to—she‘ll be able to speak her mind.  I don‘t think she‘s going to have a problem with that.

NORVILLE:  Are you surprised that No. 7 was the one who turned out to be a problem, having sat with those folks, Justin?

FALCONER:  I am.  I am very surprised.  I‘m surprised that she took it into her own hands.  Like I said, the time that I spent with her, she was really friendly, very outgoing, and I enjoyed speaking to her and spending time with her.  But she—you know, I‘m really surprised it was 7 that, you know, had these difficulties.  And you know, it just goes to show, you know, we can speculate all we want, but you know...

(CROSSTALK)

NORVILLE:  Sanford?

MARKS:  One of the things that—you know, again, none of us are in the jury room.  And from what I‘ve been able to gather, she was the only Asian person on the jury.  Is that correct?

FALCONER:  Yes, she is.  She‘s...

MARKS:  And maybe there was some sort of language barrier that was going on.

FALCONER:  No.  No.  Absolutely not.

NORVILLE:  She had a good command, Justin, of English, this...

FALCONER:  Oh, yes.  No, no.

MARKS:  OK.

FALCONER:  She didn‘t even have an accent.  No, she‘s not—no, there was no issue whatsoever of language.  She was more Pacific Islander, I think, than Asian.  But she—you know, she had no issues with language whatsoever.

NORVILLE:  Justin, I know you guys aren‘t supposed to talk about the case, but I also know when you‘re hanging out for a month, as you were in your case before you left the jury service, you get a sense of which way people are leaning.  Your general sense of the attitude of the jurors as they were hearing the evidence come your way is what?

FALCONER:  At the time that I left, it was frustration.  I think we were hearing a lot of things over and over and over and over and over again, so—and it was stuff that you‘re just kind of wondering, Why am I hearing this now?  Why am I hearing about what a great guy Scott Peterson is?  And obviously, as time went on, it was they were setting up the—you know, to tell us what a bad guy Scott Peterson was.

But you know, I think, at the time, it was frustration.  It was—you know, everybody was just kind of getting settled in, understanding that it was going to take quite a while, that we were going to hear a lot of stuff, we were going to see a lot of things that we weren‘t going to soon forget.  And you know, so at that particular moment, that‘s what it was like.

NORVILLE:  Sanford, this time last night, we were sitting here wondering...

MARKS:  Right.

NORVILLE:  ... if we weren‘t going to be talking about a hung jury and starting over from scratch—now we start from scratch, at least with a new jury make-up, but there‘s still a very real possibility that these 12 folks won‘t be able to come to agreement.  What‘s your prediction?  What‘s your sense, now that there‘s been this change, as to whether they‘ll be able to work out a decision?

MARKS:  Well, I think that the fact that the judge gave them a lesser included offense of second-degree murder certainly bodes well for the prosecution.  Certainly, the defense didn‘t want that kind of an alternative.  And I think that, you know, five months in trial, my guess is that this jury ultimately will arrive at a verdict.  They‘re taking their role very seriously, as Justin just said.

NORVILLE:  Yes.

MARKS:  I mean, these people want to be there.  And I think that—you know, I think we‘ll be seeing a second-degree conviction here.

NORVILLE:  All right.  We‘ll let that be the last word.  Justin Falconer, Sanford Marks, thanks for being with us.  We appreciate your time.

Now from changes in the courtroom to changes inside the Bush White House.  Details on two high-level resignations when we come back.

ANNOUNCER:  Coming up: From the Supreme Court to the war on terror, what lies ahead for President Bush‘s second term?

(BEGIN VIDEO CLIP)

BUSH:  When you win, there is a feeling that the people have spoken and embraced your point of view.

(END VIDEO CLIP)

ANNOUNCER:  Veteran newsman Sam Donaldson on the next four years when DEBORAH NORVILLE TONIGHT returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

NORVILLE:  In Washington, the first shoe has dropped, two big changes in the presidential cabinet today, resignations by attorney general John Ashcroft and by commerce secretary Don Evans.  Now George W. Bush begins shaping his second term.  And my guest tonight—well, you‘d have to be president, frankly, to know more about the White House than Sam Donaldson.  He‘s done two tours of duty as chief White House correspondent for ABC News, the first of them beginning in 1977.  He‘s known as sometime nemesis to Presidents Carter, Reagan...

SAM DONALDSON, ABC NEWS CORRESPONDENT:  Oh, no!

NORVILLE:  ... Clinton, Bush 1 and Bush 2.  Sam, good to see you.

DONALDSON:  Hi, Deborah.  It‘s good to see you, too.

NORVILLE:  You know, it didn‘t take long for the changes to start happening in Washington.  What do you make, first off, of John Ashcroft handing in his resignation, a five-page handwritten letter?

DONALDSON:  Yes, well, that had been telegraphed, so that wasn‘t a surprise.  His health hasn‘t been that good.  But he‘s been a lightning rod for criticism.  And I think it‘s like the fox, you know, that settles into the river, and the fleas all go up to the very tip of the fox‘s tail, and the fox then takes that fur and lets it float down the river.  So—not a very good metaphor, but...

NORVILLE:  You sound kind of like Dan Rather.

(LAUGHTER)

DONALDSON:  Oh, you‘re a fox!  With Ashcroft gone, it gives the president a chance—yes, he‘s going to be replaced with a good conservative attorney general, as far as George W. Bush is concerned, but someone who doesn‘t enrage the critics like fingernails on the bedsheet.

NORVILLE:  And the people who are being—you know, the names are already circulating, who might be the replacement.  There‘s Larry Thompson, who‘s already at the Justice Department.  He‘d be the first black attorney general, if he were to be nominated and approved.  Who else are some of the names?  Because they‘re not really higher-profile people, like John Ashcroft was.

DONALDSON:  Well, Frank Keating is a name you might look for.  He‘s the former governor of Oklahoma, a good conservative Republican.  He heads a trade group here in Washington now, but he might be a candidate.  There are several Republicans, I‘m certain, that would like to be attorney general.  The president will select one.  And this may give us a clue as to the kind of people that he‘ll have in his cabinet in the second term, if there are more resignations.

NORVILLE:  You know, it‘s interesting you mentioned Keating because he was the governor of Oklahoma at the time of the Oklahoma City explosion and certainly has some experience with dealing with at the time what they thought was a terrorist attack.

DONALDSON:  Yes, and Frank Keating‘s name was actually mentioned in 2000 as a possible running mate for George W. Bush.  Of course, the man who was head of the selection committee finally decided that he was OK, Dick Cheney.  But Keating‘s well respected in Republican ranks.  I don‘t want to seem to be his cheerleader...

NORVILLE:  Sure.

DONALDSON:  ... but it‘s just a name you might consider.

NORVILLE:  Sure.

What about Don Evans leaving?  He‘s been an old-time Texas friend of the president‘s, served as commerce secretary for four years.  He is now saying he needs to go on and find new challenges.  It‘s time for a change. 

DONALDSON:  Yes.  He raised a lot of money for the president, as you say, a very close friend of President Bush‘s.

The secretary of commerce has become increasingly important.  In the old days, it might have been just like the old post office department, in the sense that someone who was a party faithful got the job.  But now with trade so important, working with trade negotiator, the secretary of commerce really has a lot to do.  So I would like for someone who is not just someone who is given the reward, but a man of substance or a woman of substance to be selected, but I don‘t know who it would be, no.

NORVILLE:  And this is going to be somebody who is going to have to fight to keep some of these jobs that seem to be going overseas. 

Just today, there was a court case that involved China and the furniture industry and some 30,000 jobs in America that no longer exist.  This is a big job. 

DONALDSON:  Well, that‘s true. 

But you talk about jobs overseas, remember, Gregory Mankiw, who is the

chairman of the Council of Economic Advisers, last spring, undiplomatically

·         he is not a great politician—said outsourcing really was not that bad and, in the long run, it‘s a good thing.  He had to be tamped down for the campaign.     

               

NORVILLE:  Yes. 

(CROSSTALK)

DONALDSON:  The secretary of commerce may not be the great protector of all jobs here in the United States, from the standpoint that Mankiw was talking, as he would have had to have be before November 2. 

NORVILLE:  Yes. 

Now, let‘s talk about a couple of other jobs.  Don Rumsfeld as secretary of defense, will he continue? 

DONALDSON:  He wants to.  He wants to very much so. 

And if I had to bet tonight, it would be that he will continue for at least a while.  There are a couple of men in this Cabinet, Deborah, who would like to be redeemed.  They want redemption.  Rumsfeld is one. 

(CROSSTALK)

NORVILLE:  He wants this war to be over and over successfully. 

DONALDSON:  Yes.  It was his tactics in fighting a very light war in Iraq that sort of backfired. 

And the other man, of course, is Colin Powell.  I would have bet you three months ago that there was no way Colin Powell was going to stay a second term.  Well, I didn‘t bet or I would have to take it back, because I think now, Secretary Powell, if asked, would certainly want to stay on.  He would want to see Iraq through and he would want to see if he couldn‘t do something in the Mideast peace process, now that Yasser Arafat is going to pass from the scene. 

NORVILLE:  What changed?  Is it Yasser Arafat‘s departure that opens possibilities that didn‘t exist a week ago? 

DONALDSON:  Well, his departure certainly will.

There‘s going to be a bloodletting for a while trying to figure out a new leader.  There a couple of them, of course, who will be interim leaders.  And the question of whether Hamas and some of the other terrorist groups will allow leadership that does not give them a very big piece of the action is going to be important. 

So I don‘t think we are going to be able to do anything for a while until that‘s settled.  Why should Prime Minister Sharon negotiate with a triumvirate that is not settled in the saddle?  But after that, yes, everyone hopes there‘s a great possibility to move that off the dime, but two things should happen.  Iraq should work out OK, as the president hopes, as we all hope. 

(CROSSTALK)

NORVILLE:  And what‘s the time frame for that, before you move on to point two?  Is it just getting to the elections and the elections happen, or some period after that, and there‘s some sort of stability and security in Iraq? 

DONALDSON:  Well, I don‘t know, because we passed the resolution in the United Nations Security Council last June.  If you read the resolution, we passed it there unanimously in order to confer legitimacy in the transfer of some power, remember, to the interim government. 

NORVILLE:  Right. 

DONALDSON:  But in that resolution, it says in so many words that, after the elections, early this coming year, and the political process continues through the year, that will end in the end of 2005, all foreign troops will withdraw unless we are asked to withdraw sooner. 

We are getting out of Iraq as fast as our legs can carry us, so the time frame, unless we change our minds, and we don‘t have any more troops to go in there, so I don‘t know how we can change our minds. 

NORVILLE:  Right. 

DONALDSON:  No one wants the draft.  The time change is the next year. 

Can we do it in a year?  Keep your fingers crossed. 

NORVILLE:  All right, now, while we are thinking about the war in Iraq, a lot of people are also looking to the Supreme Court.  Justice Rehnquist actually handed down an opinion today, despite the fact that he is dealing with thyroid cancer, but it‘s possible there could be at least three, maybe more retirements during the second Bush term. 

What do you think is going to happen on the Supreme Court? 

DONALDSON:  I think the president is going to do exactly what we all think he is going to do.  He is going to nominate justices and try desperately to get them confirmed who he believes will carry out the things he thinks are important. 

Now, of course, if the litmus test is abortion, the president shied away in one of the debates, saying that that was a litmus test for him, although John Kerry said on the other side it was a litmus test for him.  But does anyone think George W. Bush who tells you what he feels about things—there‘s very little guile in this man.  One of his political strengths, you know where he stands. 

NORVILLE:  Right. 

DONALDSON:  Does anyone think he is going to nominate someone, like his dad got boxed into nominating David Souter, who would join the other side?  Not for a moment.  Not for a New York moment. 

(CROSSTALK)

NORVILLE:  On the other hand, Arlen Specter said, and he got in a fair amount of hot water himself for doing it, that the abortion test would be one that would be one that had to be passed in the Judiciary Committee. 

DONALDSON:  Well, he explains it now by saying I was just—the political facts are, the Democrats will fight like you know what to stop someone up there who is going to reverse Roe v. Wade. 

I think he will get the chairmanship, although true conservatives who are furious with him for suggesting that he might stand in the way—and the chairman of that committee can‘t stand in the way, by the way.  It can come to the floor without him. 

NORVILLE:  Right. 

DONALDSON:  And I don‘t think they are going to remove Arlen Specter, because that would be such a punch in the eye at any moderates left in the party and the certainly the rest of the people of the country, that they leave him there.

But I don‘t think that it will deter George W. Bush from nominating a man that he thinks or a woman that he thinks will carry out the things that he believes are important. 

NORVILLE:  You say the fact of the matter is, the Democrats will fight lake mad to keep an anti-abortion justice from sitting on the Supreme Court.  But there are more Republicans than there are Democrats in both the House and Senate.  They are not as strong as they were. 

DONALDSON:  Well, Deborah, they are going to have to pick their chances and pick their battles. 

I was talking to Nancy Pelosi, who is, of course, the House leader, last night.  And she said it, and I think she speaks for most Democrats.  We are going to fight, but we can‘t fight every battle.  We are going to have to pick them. 

So I think George W. Bush is going to nominate people to the Supreme Court who are of the same kind of stripe, but some may be considered by the Democrats worse than others.  They are not going to be able to stop all of his judgeships.  They are going to have to approve them to the Supreme Court. 

(CROSSTALK)

NORVILLE:  And hey may have a lot.

We are going to take a break.  When we come back, more with Sam Donaldson.  We have been talking about the people that might be changing.  When we come back, we will talk about policies that might change.

George Bush has won reelection.  How much of a mandate does he have? 

And if you didn‘t vote for him, should you be concerned? 

Stay with us.

(COMMERCIAL BREAK)

NORVILLE:  President Bush has won reelection.  What can we expect in the president‘s second term?  The Bush agenda as seen through the eyes of Sam Donaldson in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I congratulate the men and women who have just been elected to the House and the Senate.  I will join with old friends and new friends to make progress for all Americans. 

(END VIDEO CLIP)

NORVILLE:  That was President Bush speaking at his first news conference after the election last week. 

How will the president‘s election mandate shape his second term? 

Back talking with ABC News correspondent Sam Donaldson to handicap the Washington players the second time around and some of the issues that they are going to be dealing with.

Sam, I know you get a lot of e-mails.  I do, too.  And I have gotten a number of e-mails that say along these lines:  I didn‘t vote for George Bush.  I know he won.  But it was only 51 percent.  I am a little concerned that this mandate he perceives doesn‘t really exist. 

Should people be worried? 

DONALDSON:  Well, it‘s not a big mandate, but he did win three million votes this time, surplus, and I think he is going to set out to try to do what he has told us.

He is going to try make a success out of Iraq, but he has about, what, a year and some odd months to do it.  And can we train enough Iraqis?  We will see.  He wants to reform the Social Security system, small amount, privatize the account, just a small amount of it.  Democrats will fight that.  He wants to reform the tax system.  Everybody is for that, except, can you make it revenue neutral?  And he wants to make his big tax cuts permanent, but there isn‘t any money.

So he has a very ambitious agenda, Deborah, but the question is, every step of the way, there are going to be problems. 

NORVILLE:  Every step of the way, there are going to be problems on each one of those.  And while he has got a Republican House and a Republican Senate that he can work with, they are not all of the same mind that the dollars are necessarily there or that, as you said, you can make the one—the tax plan revenue neutral.  He is even going to find resistance within his party on some of these things, for instance, Social Security. 

DONALDSON:  Yes.  Yes, you‘re right.  He is, although, in the House, I think the Republicans have a lock on it.  They are going to roll the Democrats on most of these important things. 

In the Senate, it‘s a different story.  The Democrats, when they pick their battle, with only 45, but when they pick their battle, they can stop by filibustering anything they want to.  It‘s just they can‘t stop everything, and they can‘t be seen as the party of obstructionism.  If they do that, they are just digging their own grave four years from now. 

NORVILLE:  Four years ago, there were questions about whether George Bush was legitimately president.  It was an argument that you could have and you would never settle. 

Now there‘s no questions.  As you said, there‘s a three million vote plurality.  He won both the popular and the electoral vote.  And yet, I had this sense at his press conference that he does seem to be willing to show that, I am going to tread slowly, but I am going to do what I said.  More than—at least five times, if I counted correctly, he said, I have said it before, and I meant what I said.  Everything you have heard me say in the past, I am planning to go there. 

DONALDSON:  Yes, but there was something that John Mitchell, the former attorney general in the Nixon administration said.  Watch what we do, not what we say.  And the old business about words and deeds. 

The president sounded very conciliatory.  That‘s absolutely true.  Does he mean it?  Well, I think he would like Americans to join him, of course, but on his terms.  I don‘t think that this president is going to say, look, I have to dance with those who brung me, to some extent, but I am going to save three or four dances for those of you who are sulking in the corner. 

I think he is going to try to do that agenda that he just outlined, that I outlined, that he‘s outlined, and I think he is going to fight hard.  And if you can join him, he welcomes you.  If you don‘t join him, I don‘t think he is going to flip-flop. 

NORVILLE:  But he has also got a time frame that‘s limited.  While he has got a four-year term, the reality is, two years from now, everybody is going to be focusing on the midterm election.  So anything he is going to do, doesn‘t he have to get done the next year and a half or so? 

DONALDSON:  Basically.  You mentioned Supreme Court appointments.  Very important.  You are quite right.  If he can get these appointments made, have the opportunity the first two years, the Democrats are going to be hard-pressed to stop someone who looks reasonable.  Yes, he is a conservative or she is a conservative, but not Attila the Hun. 

In the last year or year and a half of his presidency, he will be very, very hard-pressed to get anyone through that isn‘t someone acceptable in a broad-based sense. 

NORVILLE:  Which is why he has to move quickly to make any appointment changes that he is going to, and also why he has to move quickly with Iraq.  And he talked specifically about that and about working with the Iraqi people to move this along.  Here‘s what the president had to say. 

(BEGIN VIDEO CLIP)

BUSH:  We will work with the Allawi government to achieve our objective, which is elections and on the path to stability.  And we will continue to train the troops.  Our commanders will have that which they need to complete their missions. 

And in terms of the cost, we will work with OMB and the Defense Department to bring forth to Congress a realistic assessment of what the costs will be. 

(END VIDEO CLIP)

NORVILLE:  There‘s a lot of disagreement about what the realistic assessment of costs should be. 

DONALDSON:  Well, he got a $25 billion increase just the other day.  He is going to ask for $70 billion more.  That might be the end of it, but no one really thinks so.

But look, Deborah, we are not going to be in Iraq for 10 years, as we were in Vietnam.  I will just make that prediction right now.  We‘re going to be out of there.

NORVILLE:  But there have been military people who have said, if you want stability, security in Iraq, it‘s going to take a decade or even more. 

DONALDSON:  Well, we want stability, but I don‘t think the American public is going to stand for that.  I could be deadly wrong, of course.  We could be there a long time, I suppose, suffering casualties. 

NORVILLE:  Do you think the president is looking for a quick way out? 

If he can find it, he‘s looking for it?

DONALDSON:  I think we have got the resolution.  We engineered the resolution.  We are the ones who negotiated the language.  Did we mean it?  Now, we can always change it or ignore a U.N. resolution.  I understand the way it works.

But at the moment, we are looking for an exit strategy at the end of 2005.  Now, let‘s talk about the elections for a moment.  Will they be violence-free?  Of course not.  But I will bet you we will find that they will be violence-free enough to hold them.  The real key is, who wins?  Do we want a democratic election in which the Shiite majority wins?

Ali Sistani, the ayatollah, has gone along with this because that‘s what he anticipates.  Or do we say no?

(CROSSTALK)

NORVILLE:  Isn‘t there argument to be made that, you know what?  Just get the elections.  Whoever wins, they win.  They chose them.  It‘s their problem.  Boom, we are out of there. 

DONALDSON:  It‘s called Vietnamization. 

NORVILLE:  We‘ve done it before.

DONALDSON:  In other words, we turn it over.  Good luck, guys.  We have done what we can.  We have tried to train you.  We have given you elections.  You never kind of understood what they were about.  We have introduced you to Thomas Jefferson.  Now you are on your own. 

I guess we could do that, but does anyone think the end result is going to be the beautiful democracy that the president and all of us hopes can be achieved?  I just think it‘s a terrible problem.  I wish I had a way out.  I don‘t know a way out.  But I think we are going to get out. 

NORVILLE:  Yes.  All right. 

We are going to take a short break.  When we come back, we are going to talk about unifying the country now that the race is over.  It was a bitter one.  Can the old wounds be healed?  We‘ll find out in a moment.

(BEGIN VIDEO CLIP)

BUSH:  We are fighting a continuing war on terror.  And every American has a stake in the outcome of this war, Republicans, Democrats, independents, all of our country.  And together, we will protect the American people. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BUSH:  In the election of 2004, large issues were set before our country.  They were discussed every day on the campaign.  With the campaign over, Americans are expecting a bipartisan effort and results. 

(END VIDEO CLIP)

NORVILLE:  That was more from President Bush‘s first news conference after the election.

But what sort of results can Americans expect and will President Bush try to unite the country? 

We are back with longtime White House correspondent, Sam Donaldson. 

Sam, last night we put up a map that showed the red and the blue states.  And then “The Boston Globe” molded them together to show just how red and blue the country was.  And basically America is purple.  And maybe we can throw that map up and take a look at it.  When you look at the red and the blue come together, based on the percentage of votes that were cast for either President Bush or Senator Kerry, there‘s a big middle in America, and we do seem to agree on a lot of things. 

That gives the president a chance, does it not, to really make some progress with issues that people from both sides can agree on, or am I being completely Pollyanna here? 

DONALDSON:  No, I don‘t think you are being Pollyanna at all, except there‘s a problem. 

I said earlier about the folks who brung him.  Do you dance with those folks or not?  Those folks, for instance, James Dobson, who heads a large conservative movement...

NORVILLE:  Right. 

DONALDSON:  ... said on Sunday that he expects the president to fulfill certain campaign promises, and others have said the same thing. 

NORVILLE:  Is that a threat? 

DONALDSON:  Well, it‘s not a threat, because the president can‘t run again, but, after all, he does owe these people.  They did bring him to this dance. 

Now, to move to the middle, he doesn‘t have to abandon them, but he has to say on occasion to them, well, no, I can‘t do that, because I think it‘s better to do this.  Now, does he do that, Deborah, or is it my way or the highway?  Is it us against them?  You‘re either for me or you‘re against me? 

I think, if I had to bet, that this president is going to try to fulfill that conservative agenda that he outlined.  He wants bipartisanship if, in fact, that means you will come join me, rather than, I have to join you on occasion.  But I could be wrong.  Maybe he will become much more moderate than the George W. Bush we have known and either loved or not loved so far. 

NORVILLE:  I wonder if he has gotten a bit of a pass on the gay marriage amendment simply because so many states took it upon themselves to deal with this issue, that maybe the president can dodge that, and not have to push for a federal amendment.

DONALDSON:  But that‘s one of the things that James Dobson and others want him to push for.  They feel very strongly about it. 

And so what does he do?  You are quite right.  Does he just give lip service to it?  Does he say to Republican leaders on Capitol Hill, we really want this, believing that maybe the states won‘t pass it?  Although in 13 instances this year, 11 on Election Day, we have seen that the states do want to pass a ban on gay marriage.  I am not certain. 

NORVILLE:  On the other hand, if it‘s a federal amendment to the Constitution, you got to have two-thirds of the states ratify it.  And the ERA could never get on.  Why would this? 

DONALDSON:  Yes, but the ERA didn‘t get on because they made the case that the enabling clause somehow was a threat. 

I mean, that was a silly thing, in my estimation.  It probably should have been passed.  But it‘s very tough to get a constitutional amendment.  You are right.  But between a constitutional amendment that says you can‘t burn our flag, or one that says, you can‘t marry if you are the same sex, I think more people would support the you-can‘t-marry amendment today. 

NORVILLE:  For First Amendment reasons, if nothing else. 

DONALDSON:  Yes. 

Well, I just think we are talking about whether this president is going to be more moderate than he has been to date.  And people say, well, he is now freed from a reelection campaign.  He doesn‘t have to run again and all of that.  But I think he believes what he says. 

And I think we have got a president, who, whether it‘s a matter of his faith, when he talks about his faith, whether it‘s a matter of ideology, when he talks about his ideology, really means it. 

NORVILLE:  Yes. 

DONALDSON:  You know, his father was always suspect by true conservatives.  And they were right to suspect him. 

NORVILLE:  But they believe in W. 

DONALDSON:  Yes.  George Herbert Walker Bush was a moderate, and he hid that to a large extent when he became Ronald Reagan‘s running mate.  His son fell far away from the bough when it comes to politics. 

NORVILLE:  Let me talk quickly about the Democratic Party.  You said you saw Nancy Pelosi yesterday down in Washington.  The Democratic Party has got to be feeling real bad about how things went for them last Tuesday night.  There‘s talk about who will run the party as its chairman next time around?  Who do you put your money on? 

DONALDSON:  I don‘t know.  That‘s going to be a coalition that decides that.  It‘s not going to be one person.  John Kerry, of course, doesn‘t get to make that decision. 

NORVILLE:  You bet.

DONALDSON:  Had he won the election.

They will try to put somebody in there who can carry the torch, who I think has to be good on television, and who can somehow set a direction with the help of other party leaders.  The question is, what is that direction going to be?  Is it going to be what people call a me-too party, which says, oh, we were beaten by Republicans; we have now got to act more like them?

Or is it going to be a party in opposition that says, as Harry Truman once said, you know, if you give the voters chance to vote for a Republican or for a Democrat who acts like a Republican, they will vote for the Republican every time.  And, therefore, we got to be Democrats. 

NORVILLE:  We will let that be the last word. 

Sam Donaldson, always a pleasure to see you.  Thanks for joining us.

DONALDSON:  Harry Truman always has the last word. 

Deborah, good to see you. 

NORVILLE:  All right, Sam. 

We‘ll be right back.

(COMMERCIAL BREAK)

NORVILLE:  We love to hear from you, so send us your ideas and comments to us at NORVILLE@MSNBC.com.  Some of your e-mails are posted on our Web page.  That address is NORVILLE.MSNBC.com, which is also where you can sign up for our newsletter. 

And that is our program for tonight.  I‘m Deborah Norville.  Thanks a lot for watching. 

Coming up tomorrow night, Chris Matthews takes over the time slot for a special edition of HARDBALL. 

And coming up next, Al Franken from “The Al Franken Show” on Air America, joins Joe Scarborough on “SCARBOROUGH COUNTRY.” 

We‘ll see you Thursday.

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

END   

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