updated 10/28/2005 11:17:22 AM ET 2005-10-28T15:17:22

Guests: Dana Milbank, Jonathan Turley, John Dean, Clint Van Zandt

KEITH OLBERMANN, MSNBC ANCHOR:  Which of these stories will you be talking about tomorrow?  De-constructing Harriet.  The Supreme Court nominee withdraws.  The official explanation, she will not reveal her counsel as White House counsel. 

And down the CIA leak stretch we come.  This much for sure, nothing during the day.  This much also for sure, this grand jury cannot be extended.  This much merely source reported, a perjury charge expected against Karl Rove.  John Dean joins us for some last-minute analysis. 

And why the World Series outcome was a bad sign for the administration. 

As Florida continue to seem like New Orleans jr., a bad time for unconscionable oil company profit reports for the third quarter, a worse time for a new energy bill including $12 billion in tax breaks for oil companies. 

And how come there are chocolate sprinkles all over my apple fritter?  Those are not chocolate sprinkles.  Sentencing for a crime so disgusting I may not even be able to tell what you it is. 

All that and more now on COUNTDOWN.

Good evening.  This is Thursday, October 27, 2005, and it is, believe it or not, cranky co-worker day.  A time to celebrate, even to emulate, the office sour pus.  Our fifth story on the COUNTDOWN at 1600 Pennsylvania Avenue, Washington, D.C., there was a choice of nominees.  For resident, cranky co-worker, because there‘s again a choice of nominees for the Supreme Court.  Harriet Miers has with drawn her name from consideration.  And if the official line is to be believed, the president was surprise and his staff, bracing for the impact of the end of the CIA leak investigation, felt rather like the poor guy tied to the railroad tracks who suddenly gets hit by a low-flying plane. 

The first nominee in 18 years to withdraw.  Miss Miers will remain White House counsel.  Will even consult on the search for a new nominee.  The straw here, officially anyway from the ex-nominee and from the president, Senate demands for records of her work as White House counsel.  Miers herself writing to the president, “I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.”  Later clarifying that, “protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension.  I have decided that seeking my confirmation should yield.”

Her staunchest supporter, the president, chose not to comment on camera.  Instead he release a statement that he understood and shared her concern because “it is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House.  Disclosures that would undermine a president‘s ability to receive candid counsel.  Harriet Miers decision,” he went on, “demonstrates her deep respect for this essential aspect of the constitutional separation of powers—and confirms my deep respect and admiration for her.”

Still unclear how much Miers was encouraged to withdraw, considering that White House Chief of Staff Andrew Card was allegedly told the lay of the land in a phone call last night from the Senate majority leader, though Senator Frist today insisted it was her choice and hers alone. 

(BEGIN VIDEO CLIP)

SEN. BILL FRIST (R-TN), MAJORITY LEADER:  She came to this decision on her own, based on what she has experienced and witnessed and with the request that are currently being made, and as she projected forward as to the hearings.  Again, in the best interests of the country. 

(END VIDEO CLIP)

OLBERMANN:  The blind trust told him so. 

And in a strange role reversal, it was the lead Democrat in the Senate, the man who actually had recommended Harriet Miers as a justice nominee, who had the harshest words for her critics. 

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D-NV), MINORITY LEADER:  I believe, without any question, when the history books are written about all this, that it will show that the radical right wing of the Republican Party drove this woman‘ nomination right out of town. 

(END VIDEO CLIP)

OLBERMANN:  Let‘s call in “Washington Post” National Political Reporter Dana Milbank.

Good evening to you, sir. 

DANA MILBANK, “WASHINGTON POST”:  Good evening, Keith.

OLBERMANN:  Based on the fact that he seem to project the blame in two opposite political directions, this has got to be one unhappy president. 

MILBANK:  Yes.  I mean, it‘s sort of the last thing he needed right now.  But let‘s think of it this way.  In the short term, he really takes a hit.  It is embarrassing. 

On the other hand, think about this.  He now gets a do-over here.  He can win back the allegiance of the conservatives, which has really been his base for governing.  So he can cement that relationship again which will help him over the next three years.  And now he has a new nominee he can put out if you need to change the subject in the next few day.  I don‘t know why he might need to do that.  But there is that possibility. 

OLBERMANN:  We‘ve heard the official explanation, before we move on to the subject of the next candidate, the client confidentiality for a White House counsel.  We‘ve also heard from many places that Bill Frist called Andy Card and after, perhaps, the decision had been made to withdraw the nomination, and told Andy Card, in essence, she‘s not going to be approved.  Senator believe she is not familiar with constitutional issues.  What is the real time line of event here?  Who caused this?  Did she jump or was she pushed?

MILBANK:  Well, the technical term for this executive privilege argument is malarkey.  She   this is, of course, a nice thing to say.  A good way to extricate yourself from this.  But the fact of the matter is, she was up against a wall here.  You had the ideological objections from the conservatives, but you had sort of the capability objections from just about everybody.  I mean the chairman of the Judiciary Committee is saying she needs a crash course in constitutional law.  So facing the prospect of this sort of embarrassing live televised bar exam, they decided to skip the hearings and do it this way. 

OLBERMANN:  But there is still some embarrassment, as you pointed out, a short term hit to be endured now.  The reaction even from the Senate Republicans.  You were good enough to give us a little advanced peek at your piece for tomorrow.  Is this true about Trent Lott?

MILBANK:  Dear, if it weren‘t so early in the morning, I would have wondered what he had had to drink.  But he came out of the Senate and we asked him if there were good feelings in the Republican caucus and he started to sing “happy days are here again.”  Other senators were not quite so giddy but clearly there was relief, particularly among the conservatives.  They weren‘t hiding the disdain for the nomination in the first place.  Most of the angst, as you reported, was coming from the Democrats. 

OLBERMANN:  All right.  As you suggested here, the president can now try to cement the relationship with the right with this   with the next nominee.  Presuming it is not Patrick Fitzgerald, which might solve two problem in once, where does he go?  Can he afford another fight with anybody right now?

MILBANK:  I‘ll tell you, the next question for Trent Lott was, how about Al Gonzales?  And he just laughed.  He thought that would be very funny to try that one again.  So all the thinking is, he has to go with a conservative.  However, that doesn‘t mean he has to go now back to the white male model of John Roberts.  There are plenty of women.  There are plenty of Hispanic judges who fit this conservative label.  You can expect and bet a good amount of money on the president going back to his base. 

OLBERMANN:  If it‘s not conservative enough for that base, is that base now feel like they have instructed the president and can instruct him again on who would   do we see a second nominee also fail?

MILBANK:  Well, as the president once said, fool me once, shame on   you remember.  He won‘t get fooled again, as he said. 

OLBERMANN:  Sounds like a song title.  Dana Milbank of the “Washington Post” with a series of different musical note here tonight.  Great.  Thanks, as always, sir. 

MILBANK:  Thanks, Keith. 

OLBERMANN:  For the actual implications on the court, I‘d like to turn to the constitutional expert at George Washington University Law Professor Jonathan Turley.

Jon, good evening.

JONATHAN TURLEY, CONSTITUTIONAL LAW EXPERT:  Thanks. 

OLBERMANN:  This idea that she was not conversant with constitutional issues.  The message from Senator Lott to the White House last night.  Was that a nice way of saying that this woman was simply this lawyer was simply in over her head?

TURLEY:  Well, you know, the unfortunate thing is that she was portrayed in all of this as a virtual village idiot.  And that‘s not the case.  I was one of the first to oppose this nomination.  But most of us did so not because she‘s not qualified as a lawyer, not that see is not smart, it‘s just that she lacked the type of credentials that would justify a nomination to the court. 

In that sense, the president did her no favor in putting her through this gauntlet of pain.  From the very moment she was nominated, most of us just were breathless and said, this is a terrible nomination.  And the result is not just damage to the administration, but I think she‘s been put through a terrible disservice through all this. 

OLBERMANN:  So what do you expect then is coming down the pike in the way of nominee number two?  Not merely in term of political orientation, but in term of judicial experience?

TURLEY:  Well, I expect there‘s a lot of people who want to be the head of the actual team looking for a nominee because that tends to be a key to be the nominee.  So everyone‘s rushing to be in front of the president when he makes the decision.  Because if this trend continues, Jenna Bush is going to be nominated.  So we‘re hoping that he‘s going to be a little more broad, a little less myopic.  And I think in that sense, Attorney General Gonzales, who would be a natural choice, is probably not going to be the choice.  If he picks another insider, it does not look great.

Now the first decision he has to make is, is he going to look at the whole list or is he just going to look at women and minorities.  And, frankly, that‘s a very significant question.  If he looks at all candidates on the merit, then certain people stand out.  People like Michael McConnell in the tenth circuit, who has impeccable credentials, was put on the court of appeals with the unanimous vote and would get through a nomination.  He is a very good and qualified nominee. 

If he wants to start a fight and take a page from Karl Rove who, you know, has shown that controversy is not a bad thing when you‘re trying to avoid other controversies.  And if he does that, then he could pick sort of the defcon four candidates.  You know, the Edith Jones. 

I mean if he picks Edith Jones, I think we would have a virtual immediate filibuster threat and he might lose.  I mean that‘s the problem.  If he starts a fight, he‘s not guaranteed to win it with someone like Edith Jones. 

OLBERMANN:  As fast as the process moves, whether it‘s a fight or not, will Justice O‘Connor be hearing any vital cases that she would not have been theoretically had there not been this misstep?  Is it   could there be some impact on law in here?

TURLEY:  It could be.  I mean, the great irony here is that Sandra Day O‘Connor‘s continuing to vote.  And there‘s important cases, including abortion cases, coming her way.  So this is a bloody nightmare for conservatives.  You know the idea that all this infighting has kept Sandra Day O‘Connor coming closer and closer to vote on abortion cases and other cases like that. 

Now the key here is that if she leaves the bench before the opinions are actually released, her vote is negated.  And so if it was a 5-4 decision, then they would have to reargue the case. 

OLBERMANN:  Extraordinary.  Jonathan Turley, constitutional expert, professor of law at George Washington University.  As always, sir, a pleasure to talk to you.  Thanks for your time.

TURLEY:  Thanks, Keith.

OLBERMANN:  Also tonight, the other question in D.C., who outed the CIA Agent Valerie Plame?  Will there be charges?  Will they be tomorrow?  The final hours, apparently, of the Fitzgerald probe.  We‘ll talk with John Dean. 

And as Wilma triggers long lines in Florida, mostly for gas, the summer of the hurricanes sparks outrage for consumers nationwide.  Sky high gas prices meaning record profits for oil companies.  You‘re watching COUNTDOWN on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN:  They are standing in line in water up to their knees but they are standing in line.  FEMA did not let their cities drown while reconfirming it‘s director‘s dinner reservations.  But it certainly is not as popular there this year as it was last.  Our fourth story in the COUNTDOWN.  Florida and gas lines and gas profits and tax breaks for gas companies.

The president making his first visit to the damaged areas this afternoon, promising increased federal response to match that of state efforts.  Yesterday his brother, Florida Governor Jeb Bush, blames himself for the delays there, asking residents to absolve FEMA.  And remember that every Floridian had had plenty of time to prepare for Hurricane Wilma. 

Accountability aside, it‘s pretty hard to stock up on something like say gasoline or electricity.  Two million home and businesses still without power, including gas stations.  Pumps inoperable without it.  Those few facilities with power are quickly running out of gas, causing interminable line and equal amounts of anger. 

Thus, this is not the most propitious of times for the administration, for the industry, for Floridian, for drivers nationwide, for the news to arrive of record profits for oil companies.  Nor would it seem that it was a good time for the House to have approve an energy bill that allows more oil drilling in Alaskan wildlife refuges.  It shields manufacturers of additives from lawsuits and it provides $12 billion in tax breaks and subsidies for oil company.  In July, August and September of this year, several of them had profits approaching half that figure, $3 a gallon at a time.  Exxon Mobil‘s were $9.9 billion.  More than Boeing, Microsoft and Wal-Mart combined.  Bad timing for that kind of publicity, as if shame has ever had anything to do with it.  Here‘s our Chief Financial Correspondent Anne Thompson. 

(BEGIN VIDEOTAPE)

ANNE THOMPSON, MSNBC CORRESPONDENT, (voice over):  While American consumers have suffered through months of record high gas prices, the oil companies have hit a gusher.  This week, BP reported third quarter profits of $6.4 billion, up 34 percent.  ConocoPhillips raked in $3.8 billion, an 89 percent increase.  Big oil cashing in on worldwide demand and the disruptions of monster hurricanes. 

Why?  Because their profit margins went up faster than their costs. 

CHRIS EDMONDS, PRITCHARD CAPITOL PARTNERS:  We‘ve gone from $40 oil to $60 plus oil in the last year.  And so profits, obviously, were anticipated to be much higher.  The real question here is, how long can that last?  And if it lasts, what are these oil company going to do with those profits?

THOMPSON:  It is the political hot potato.  So much so, even Republican leaders this week, hearing voter backlash, urged oil company to use their profits to build new refineries to prevent future price spikes.

DENNIS HASTERT, SPEAKER OF THE HOUSE:  We expect oil companies to do their part to help ease the pain that the American families are feeling from the high energy prices. 

THOMPSON:  Though the House passed a bill to encourage construction of new refineries, the plants that turn oil into gasoline and heating fuel have a huge public relations problem. 

GARY ROSS, CEO, PRA ENERGY GROUP:  Nobody wants a refinery in their backyard.  I mean that‘s why most of the refinery capacity is located down in the Gulf Coast.  That‘s been a more accommodating market for them. 

THOMPSON:  But some, like consumer advocate Jamie Court, charged the oil companies deliberately keep the supply of gasoline low. 

JAMIE COURT, CONSUMER ADVOCATE:  An industry, like the oil industry, knows that if it just has bare minimum to meet demand, that any shock to the system will drive their prices and their profits up. 

THOMPSON:  Anne Thompson, NBC New, New York. 

(END VIDEOTAPE)

OLBERMANN:  From outrage to mystery.  Is this a fish bone?  Or a holy relic?  We‘ll consult the highest investigative authority: The Oddball I-team. 

And we‘re all supposed to love thy neighbor but that does not mean you have to love thy neighbor‘s tree house.  A construction drama over a little girl‘s playhouse when COUNTDOWN continues.

(COMMERCIAL BREAK)

OLBERMANN:  We‘re back and, once again, we pause our COUNTDOWN of the day‘s important political stories to fulfill our commitment to cover all the news, especially those stories relating to animals, vegetables and some minerals.  Let‘s play Oddball.

A tree is not a mineral but look closer there, buddy, and you will see the face of Jesus.  The rock in the bark of this Silver Maple.  It might be Ron Silver.  I can‘t really tell.  But the tree is drawing quite a crowd outside the Hickey Freeman (ph) clothing factory in Rochester, New York.  Although they could all be showing up for the affordable men‘s wear. 

But when it come to seeing Jesus in inanimate objects, nothing tops the fish bone Jesus being sold on eBay.  It is a crucifish.  A couple in Luther, Oklahoma, says it‘s been holding on to this gem for years.  It‘s brought them great luck.  But now they say it‘s somebody else‘s turn.  Well then, folks, give it away!

Back to Washington, D.C. where a runaway deer, perhaps hoping to avoid indictment in the CIA leak scandal, has been caught on tape in an upscale clothing store.  The four-point buck first entered the down diesel store, got agitated by the racks of overpriced, retro trendy junk and rushed next door to the Ralph Lauren where he got himself locked in a changing room.  It is here uncle buck had a fight with the other deer in the full length mirror until police came along and shot him with a tranquilizer.  The deer came back later for two pairs of chinos. 

Finally, to Sacramento, California.  Hello.  Home of Gibson, the world‘s smallest dog.  Can that be right?  Oh, no, no, it is the other one, the tallest dog.  It‘s official, the Guinness Book folks flew out to measure.  He‘s seven feet tall when standing upright, which means he could lick Shaquille O‘Neal‘s face if he wanted to.  Jealous, huh?  You know you are. 

Jealous of Patrick Fitzgerald because he knows what, if anything, is ahead in the CIA leak investigation?  We‘ll have the latest.  And John Dean will join us. 

And how could the White Sox sweep in the World Series tip us off as to the outcome of the Plame probe?  Those stories ahead. 

But first, here‘s COUNTDOWN‘s top three newsmakers of the day.  Number one, Phillip Morris Company.  “The Wall Street Journal” reports that after years of having their scientists try to streamline the delivery of nicotine to the lungs, they‘re now working on an improved handheld inhaler to help combat illnesses, including smoking related lung diseases.  As Churchill said, to beat Hitler, I‘ll fight alongside the devil. 

Number two, Pete Tidd of Lions, Illinois.  Better known as one of those Elvis impersonator.  He had sued a town of Sisero (ph), saying his impersonation career was hindered after he stepped on a partially opened manhole cover on one of its streets and in so doing flipped said manhole cover onto his own knee.  Now he can‘t do Elvis‘ karate kicks and splits anymore.  Today, the jury gave him $600,000.  Thank you.  Thank you very much.  (INAUDIBLE), everybody.  (INAUDIBLE).

Number one.  Our friends at the world‘s greatest Web site, fark.com, commemorating the White Sox World Series triumph as only it could with the headline, “Chicago beats Houston four times in one week.  Record still held by Bobby Brown.”

(COMMERCIAL BREAK)

OLBERMANN:  It is the eve of something.  Whatever, it‘s clearly time.  One reporter covering the CIA leak beat today called the vice president‘s chief of staff, Lewis Libby Scooter.  Another was even more direct.  She called him Libby Scooter.  Our third story on the COUNTDOWN, the facts and you can count them on the fingers of both hands, a, the grand jury‘s term expires tomorrow and having been once extended already it cannot be so again, b, that the prosecutor can go to a second grand jury if he so desires, and, c, John Dean will join us in a minute.

And even as Mr. Patrick Fitzgerald is wrapping up his case, Karl Rove said to be engaging in a furious effort to convince investigators he did not commit perjury, according to reporters at the “Washington Post.”  Rove and his legal team arguing that any omissions in his testimony merely the forgetfulness of a very busy man. 

Several news organizations having reported today what can be inferred from that, that Fitzgerald is still actively considering perjury charges against Rove.  No such reports of last-minute legal maneuvering by the other White House aide at the center of the scandal, Lewis “Scooter” Libby.  That is correct order.  Even Mr. Libby‘s legal status up is in the air tonight. 

There is, of course, history to turn to, as well as a surfeit of clues to scrutinize.  Luckily for us, Richard Nixon‘s White House counsel, author and FindLaw.com columnist John Dean is uniquely qualified to address both the history and the clues. 

Good evening, John. 

JOHN DEAN, FORMER WHITE HOUSE COUNSEL:  How are you, Keith? 

OLBERMANN:  You started analyzing the Plame leak essentially as it was happening two years ago.  Give us the final score here, the informed analysis on the eve of whatever this is.  What, if anything, has Fitzgerald come up with? 

DEAN:  Well, what we do know is how little we know.  That‘s the clear thing. 

He‘s really performed as a prosecutor should, with zipped lips.  Everything we know is largely what I would call triangulated hearsay.  In other words, we know what witnesses have been asked by the grand jury or by the investigators through their lawyers who, indeed—then you can piece back together they‘re looking at things like perjury, obstruction of justice, as well as the underlying identities protection statute. 

But we really don‘t have a very good fix on exactly where he‘s going. 

OLBERMANN:  There has been a lot of speculation that perhaps this investigation has widened.  The length of time suggesting that it‘s not just the Plame leak anymore, but also perhaps the entirety of the selling of the Iraq war and the back-filling afterwards.

You wrote in your FindLaw column last week that this issue, national security, is a very gray area.  “Was the Bush-Cheney White House operating in the best interests of the country or did they have a private agenda, oil fields in Iraq?  Did Cheney, Karl Rove, and Scooter Libby believe they had national security reasons to discredit Wilson‘s claims and act accordingly?  This is an area where there is no law.”

Could Mr. Fitzgerald be going further than the Plame leak into that area without law?  Would it be opening Pandora‘s box in some way? 

DEAN:  Well, his mandate is really to look at the identities protection act and see if there was a violation there.  He also can look at things around that investigation. 

He doesn‘t have a mandate, per se, to investigate whether we went to war properly or improperly or if there are misrepresentations to Congress, but yet he could stumble into those things. 

When I raised the problem of national security, if these men, say, deliberately went out to try to deal with Joe Wilson, and were dealing in a context where they thought they were defending and protecting national security, that‘s probably a legitimate defense in this area. 

As a say, it is a gray area of law.  There is no black letter law in this area.  And it could indeed influence, first, whether the prosecutor even brings a charge and then, indeed, how they would defend a charge if they were charged. 

OLBERMANN:  I mentioned that we could count on you not just for analysis here but also history.  One of the other theories about this process, in fact, coming down to virtually the final hour is that it should not have taken Patrick Fitzgerald nearly two years to find out who leaked and who lied about leaking, that he must be, perhaps, negotiating an immunity deal with somebody in exchange for information. 

You have some familiarity with that process.  Do you think it‘s plausible in this instance?  Is somebody on either side of the ball trying to make a deal? 

DEAN:  Keith, I first thought that was possible when John Ashcroft recused himself very early in the case, before Fitzgerald was appointed even, that somebody had broken, at least maybe Robert Novak had come forth.  And they knew a lot more than they thought they knew, and that‘s when they started putting some pressure on.

We‘ve gotten, again, hearsay press reports that a couple people may, in the vice president‘s office, have turned and begun friendly witnesses for him.  So there is a real possibility that this is why it has extended the distance it has. 

We also know, from what he said in court when he sought the contempt citations against Cooper from “Time” magazine and Miller from the “New York Times” that, indeed, he was ready to wrap up his case right then. 

So it‘s loose ends at this point, now that he has Judith Miller, and he has her testimony, and he did get Cooper‘s testimony.  So I think it‘s pretty much tidying up things, and seeing where he is, and making those very final decisions at this point. 

OLBERMANN:  We know—at least, we think we know of meetings among Mr. Fitzgerald and Rove‘s lawyer, and some contact with the representatives of Mr. Libby and Mr. Fitzgerald. 

How daunting personally is it to be in the White House and be faced with the trial, even if you‘re not the one who‘s going to be on trial?  How strong is the urge to look at that prospect of trying to maintain a job at that kind of public level, and just say, “No, I‘m going to throw up my hands and say I don‘t like this game anymore”?

DEAN:  Well, it‘s very difficult to be under investigation.  And it was difficult during Watergate.  It was difficult when I talked to the people who were involved in Iran-Contra.  It was difficult for the Clinton White House, when they were not sure where it would turn next and who would be called next, when staff is having to hire lawyers.

No one ever briefs anybody in these situations, so everybody is living off of the grapevine.  And it‘s very confusing.  It‘s unsettling.  It‘s difficult to plan. 

So these are tough times.  Thinking historically, though, another thing that—I was thinking way back to your intro, and that‘s the fact of Rove‘s potential “I don‘t recall” defense.  And I was thinking about how Haldeman tried that defense and lost it and got persecuted—prosecuted—maybe he felt persecuted—for perjury. 

(LAUGHTER)

OLBERMANN:  Yes, a fitting reference there.  This was, in fact—this was, in fact, H.R. Haldeman‘s birthday today, just to mention that in passing. 

DEAN:  Is that right?

OLBERMANN:  Last point—yes.  Jim VandeHei of the “Washington Post,” who‘s been covering this, and I were on this show last night discussing this.  And I feel like we kind of tripped over something that we both knew but even we were not focusing on and a lot of people are not.  It might be a gold nugget here, in terms of this story. 

The assumption has been that, even with indictments—tomorrow is a finish line of some sort for the White House.  I heard the phrase, “They‘re waiting to exhale at the White House,” used. 

But if there‘s one indictment of one person in the White House, even if it‘s the copier repair man, there‘s a trial.  There‘s testimony.  You‘ve got Scooter Libby the witness, Karl Rove the witness, who knows who else the witness. 

What does that prospect do to an administration‘s ability to simply function? 

DEAN:  Well, that opens up—that‘s really a potential Pandora‘s box, just the one indictment alone and that kind of testimony.  Because, at some point, the Congress is going to have to take some institutional responsibility and realize, “Maybe there is something amiss down at 1600 Pennsylvania Avenue.” 

Now, that will certainly happen if there‘s a change in ‘06 between who controls the Congress now and then.  But that‘s really the threat at this point that will open up a broader investigation. 

OLBERMANN:  Well, we‘ll see, or perhaps we‘ll begin to see, tomorrow, we hope.  John Dean, White House counsel to Richard Nixon, author of “Worse than Watergate.”  As always, sir, my great pleasure to speak with you. 

DEAN:  Thank you, Keith.

OLBERMANN:  By the way, the president‘s schedule tomorrow includes remarks about the war on terror. 

And one final note on all this, as if the current White House were not having enough fun, there are the bad augurs to worry about, the bad augurs from the baseball World Series.  It ended last night.  The Chicago White Sox beating the Houston Astros 1-0 to sweep the National League champions in four straight games. 

Now, somebody predicted that here.  I just—I don‘t remember who that was that said it was going to be a sweep. 

The White Sox, of course, had baseball‘s second-longest winless streak in the World Series.  They had not won since 1917.  Now they have shortest streak. 

This is where the CIA leak investigation begins to come into it.  The White Sox not only eliminated themselves from that list of the top five longest droughts, but they also squeezed a very interesting new team on to that list:  The Houston Astros. 

After the Cubs, Indians, Giants, Rangers—Rangers being the team the president used to own—now the Astros fifth, the Astros.  If you watched any part of the last two games of the World Series, you saw them seated just to the right from the camera‘s perspective of home plate, former President Bush and former First Lady Barbara Bush. 

As the Astros slowly suffocated from lack of offense, there the Bushes were on TV for nine or more innings at a stretch, waiting just as quietly and helplessly for the team‘s demise as his son and his staff are sitting there right in the bull‘s eye in Washington waiting for the indictments, if any. 

But this would not be enough of an augur if it were just, “Oh, the president‘s parents were at the Astros games and the Astros lost.”  It‘s that they lost to the White Sox, the Chicago White Sox, who play their open games on West 35th Street in Chicago‘s 11th Ward. 

Last year‘s presidential vote in the 11th Ward, courtesy of our friend, Jim Warren of the “Chicago Tribune,” Kerry 12,008, Bush 4,981.

Cute, but still not ominous, except for one last detail:  Who is the U.S. attorney for the 11th Ward, in fact, for all of northern Illinois?  Patrick Fitzgerald, with offices on South Dearborn Street in Chicago, just about four miles due north of the home of the new they-just-won-it-for-the-first-time-in-88-years-by-a-sweep, world champion Chicago White Sox, U.S.  Cellular Field. 

This tree house has nothing to do with the CIA leak.  No, in Brentwood, California, this is the big story right now. 

And can smoking make you stupid?  A new study weighs in on that, as we bring you the return of “I Quit,” our campaign to help you quick—kick the habit.  Talk about sounding stupid.  I‘m the number-one example.  That‘s next.  This is COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  With the housing market being what it is, if you could get a famous architect and builder to put one up for you for a fraction of his regular price, would it matter to you that the house was up a tree? 

Our number two story in the COUNTDOWN, it isn‘t the would-be owners objecting, it‘s the neighbors.  This is in Brentwood, California, one of the tonier neighborhoods outside L.A.

And as our correspondent Mark Mullen reports, construction isn‘t just up a tree.  Right now, it‘s also up a river without a paddle. 

(BEGIN VIDEOTAPE)

MARK MULLEN, NBC NEWS CORRESPONDENT (voice-over):  When Gwyn Lurie and Les Firestein moved into their home, they wanted to give their 18-year-old daughter a gift she could enjoy in the future. 

GWYN LURIE, HAD TREE HOUSE BUILT FOR DAUGHTER:  It was a dream for us. 

Since we got married, we talked about building a tree house. 

MULLEN:  Using mostly salvaged wood and glass, they enlisted the help of their friend, Roderick Romero...

RODERICK ROMERO, TREE HOUSE BUILDER:  This house will last as long as the trees last. 

MULLEN:  ... who offered to build a 10-square-foot tree house for the bargain price of free burritos and a bed while he worked.  Thing is, Romero is a world-renowned builder of elaborate tree houses for celebrities, like Donna Karan and Sting. 

His tree houses, a featured gift in this year‘s Neiman Marcus Christmas book.  Starting price for the public, $50,000. 

The project was going well, construction of the tree house nearly complete after eight days.  Then everything came to a stop after one neighbor filed a complaint. 

LES FIRESTEIN, HAD TREE HOUSE BUILT FOR DAUGHTER:  I think it‘s too nice.  I think, if it looks like the little rascals‘ shed, people would leave it alone. 

MULLEN:  The neighbors‘ complaint?  Someone in the tree house might be able to view the neighbor‘s pool and hot tub in the distance. 

LURIE:  We made the house so that none of the windows were facing their yard and that they had their privacy in their backyard, which we understood. 

MULLEN:  Still, based on a lone anonymous complaint, the city of Los Angeles issued an order halting final construction until a building permit is secured. 

FIRESTEIN:  If the city wanted to pursue somebody, I thought they should go after the Keebler Elves, because they have an entire cookie factory in their tree. 

MULLEN:  For now, the little girl will just have to play in the yard, while her parents fight bureaucracy and a grumpy neighbor over a tree house. 

Mark Mullen, NBC News, Brentwood, California. 

(END VIDEOTAPE)

OLBERMANN:  If you think that was ridiculous, welcome to our nightly round up of celebrity and entertainment news, “Keeping Tabs.” 

And a military tattoo is supposed to mean a display of close-order drilling and other exercises.  Do not tell that to Prince Harry of England, known at the British version of West Point, Sandhurst, as Cadet Wales.  Talk about something on display. 

Harry, halfway through his training, reportedly forced to drop trou during a parade after a sergeant caught wind of a rumor that Harry had tattooed the name of his girlfriend on his back side.  Well, presumably, he‘d had somebody else tattoo the name.  He ain‘t Elasti-Girl. 

As Harry began to comply, reportedly he was stopped, according to the British tabloid, “The Sun,” with his pants at about knee level.  Purportedly, the amused instructor agreed to take the prince‘s word that the royal heinie had remained un-inked. 

Tonight, we reintroduce you to our effort to help you stop smoking, or our series known as “I Quit.”  First the bulletin news:  According to new research, one more bad thing smoking can do to you.  It can make you stupid. 

The University of Michigan‘s Addiction Research Center reports cigarette smoking was negatively related to I.Q. and thinking.  Proficiency tests examined smokers for the speed and accuracy with which 172 of them, long-term smokers, performed short-term memory and verbal and math reasoning tasks. 

Less striking but still evident, a connection between smokers and weaker verbal and visual spatial reasoning.  Duh!  So maybe part of your problem quitting smoking has been you‘ve been getting dumber. 

It‘s three months since I quit and, I swear, I think my brain fog has been lifting.  If yours isn‘t, consider trying to cut through it with the grossest thing you can imagine.  In my case, it was the experience of having a benign tumor cut out of my mouth.  For you, it can be whatever you need to summon to your mind some very personal, very disgusting consequence of your smoking, real or imagined. 

(BEGIN VIDEO CLIP)

OLBERMANN (voice-over):  We mentioned a viewer who put a fresh pack in a clear jar of water and watched the poisons leech out.  Viewer Marcelle Pieland (ph) took that a next step.  He put cigarette butts in the jar of water and every morning, or any time he felt like smoking, he unscrewed the lid and took a big breath. 

For 35 years, I had forgotten something I‘d experienced as a kid, a great lesson from school, in the old days before political correctness.  Sixth or seventh grade this must have been.  They showed us post-mortem slides of a healthy lung and of a lung with cancer from smoking. 

I ran all the way home.  And I can recall coming in through the neighbor‘s yard, over the back fence, and into the side door of the house, so I could get to my mother faster than usual, so could I make her promise to lock me in my room if she ever caught me smoking cigarettes. 

Well, to be fair, I‘ve never smoked cigarettes.  But the point being, as gross as talking about the blood and guts part of the removal of the tumor might have been, the next day, I saw four people walking around this office chewing Nicorette gum. 

The idea of getting cancer or heart disease because you smoke is supposed to gross you out. 

(END VIDEOTAPE)

OLBERMANN:  For more ideas and to post your own quitting experiences, please to go our web site, countdown.msnbc.com and look for the “I Quit” section.  We will do the TV version every week, but the web site support is available every minute. 

So is this.  It‘s not your average store surveillance video.  It‘s showing an act of revenge so gross that the betting is 6-5 that I will not get through the segment.  That‘s ahead. 

But first, time for COUNTDOWN‘s list of today‘s three nominees to covet the title of “Worst Person in the World.” 

Taking the bronze, an unnamed doctor at South Tyneside District Hospital in England.  A woman named Paula Dadswell waited there for a doctor for two hours with her son who had bad cramps.  Finally, one of them showed up riding a unicycle.  He‘d been riding up and down the ward on a unicycle while she and her little boy were waiting. 

The runner up, Mark Barondess, a consultant to the group, the Pharmaceutical Research and Manufacturers of America.  They figured they had to do something to thwart all those drugs coming in from Canada over the Internet at low prices, so they hired a publishing firm and a series of authors to write a novel called “The Karasik Conspiracy” in which terrorists conspired to kill thousands of Americans by poisoning the medicine coming in from Canada over the Internet. 

But the winner, Clark Galloway, vice president of operations of Benefit Management Administrators Inc. of Caledonia, Michigan.  One of the company‘s receptionists, Suzette Boler, took four days off, unpaid, to say goodbye to her husband, Army Specialist Jerry Boler, before he shipped out to Iraq.  They had been married 22 years. 

When she got back to work, Benefit Management Administrators fired her.  “We gave her sufficient time to get back to work,” Mr. Galloway told the “Grand Rapids Press,” and then added, “We‘re totally supportive of our troops and anything that is necessary to equip them and to encourage them as a company.” 

Yes, anything except not firing their wives as they ship out to Iraq.

Clark Galloway, V.P. of Benefit Management Administrators Inc. of Caledonia, Michigan, today‘s worst person in the world!

(COMMERCIAL BREAK)

OLBERMANN:  I‘m going to warn you right now:  I may get physically ill during this story.  I assume there‘s a chance you might join me. 

If you don‘t want to go inside the mind of a man who exacted his revenge on a grocery store by sorting his own excrement, drying it in the sun, powderizing it with a cheese grater, and then sprinkling it in the baked goods department, you‘d better go watch Bill O‘Reilly.

Well, actually that would be the same thing, wouldn‘t it?  Better go watch Paula Zahn.

Our number-one story in the COUNTDOWN, truly a story my producers forced me to do—let me just remove my earpiece here so I don‘t have to listen to this again.  OK. 

As Don Teague reports from Dallas, there‘s an entirely new meaning tonight to the phrase, “Revenge is a dish which people of taste serve cold.”

(BEGIN VIDEOTAPE)

DON TEAGUE, NBC NEWS CORRESPONDENT (voice-over):  What security cameras in this Dallas grocery store caught the man in lopsided shorts doing earlier this summer is both illegal and disgusting. 

WILL RAMSEY, PROSECUTOR:  He takes his own fecal matter and spreads it to the wind over the food going to the public. 

TEAGUE:  Behrouz Nahidmobarekah faces sentencing today after his conviction on two charges of tampering with consumer products.  During his trial Wednesday, prosecutors told jurors Nahidmobarekah sprinkled his own feces over pastry products after drying it and shredding it with a cheese grater. 

RAMSEY:  It‘s just so disgusting.  And you know what?  People get hurt. 

TEAGUE:  Store management became suspicious when customers complained the pastries smelled and tasted terrible. 

CLARK BIRDSALL, DEFENSE ATTORNEY:  You‘ve got to acquit him.

TEAGUE:  But Nahidmobarekah‘s defense attorney told jurors there‘s no proof his client‘s actions were dangerous. 

BIRDSALL:  It‘s OK to be angry at the defendant.  I am.  But you‘ve got to follow the law. 

TEAGUE:  Nahidmobarekah admitted spreading the feces, but said he meant it as a joke. 

Don Teague, NBC News, Dallas.

(END VIDEOTAPE)

OLBERMANN:  Yes, barrel of laughs, huh?  If you‘re still with us, the upshot here, the defendant was sentenced today for tampering with food products to a fine of $3,000 and five years in jail.  That‘s right, he got a number five for a number two. 

Well, if we have to wade through this, I see no reason we should be the only ones.  We‘re joined now by Clint Van Zandt, former FBI profiler and now an MSNBC analyst.

Well, the stuff has truly hit the fan, so, Clint, profile away.  Who is this disturbed individual? 

CLINT VAN ZANDT, FORMER FBI PROFILER:  Well, I‘ve got my boots on to join you on this one.  You know, disgust is what you and I and everybody feels.  Disgust, it‘s a powerful emotion, and it‘s this uniquely human trait. 

And sometimes, when we want to exact revenge on someone, we say, “What is something that‘s very disgusting I can do?  What‘s one of the worst things that I would like to do myself, and then how can I push that off on somebody else?”

You know, when you feel powerless, when you feel helpless, and when you say, “How do I take control?”  Doing something like this, you know, you can go back—this guy can go back and sit in his cab and say, “Boy, did I get him today.”  You know, “Everybody got a piece of me, so to speak.” 

OLBERMANN:  Yes.  Is it better or is it worse that he used the cheese grater?  Does that make him less nuts or more nuts? 

VAN ZANDT:  Well, I guess it starts with when he first applied the grater, somewhere along the course of that. 

But, you know, what‘s, I think, special about this guy, Keith, is that he did it seven months.  I mean, whoever was on a doughnut fix, you know, if there were cops going in there getting doughnuts, they probably changed to bagels.  But, you know, for seven months in a row, he did this over this period of time. 

So there‘s planning, there‘s forethought.  You know, this is so bad, the only thing I can think of—I was in Korea 10, 15 years ago.  And I went to this open-air market.  And I saw these little kittens and dogs.  And I thought, “Boy, these are neat.  They‘re available for adoption.”  And they were really available for dinner. 

OLBERMANN:  Yes, it wasn‘t adoption. 

VAN ZANDT:  Yes.

OLBERMANN:  Lastly for a moment, analyze for me not the perpetuator in the crime but the people who‘ve spent all day talking about it, like, say, my producers.  Are they getting a vicarious thrill here?  Do I have to be worried that my producers are potential powderized-poop terrorists? 

VAN ZANDT:  You‘ve got a strange staff there, buddy, OK? 

OLBERMANN:  Well, we knew that going in.  But I‘m relating it specifically to this story.

VAN ZANDT:  Yes, no, no.  Other than that, you still have a strange staff.  But, you know, part of it is, we look at something like this and we say, “That‘s gross.  That‘s crude.”

But if I really wanted to get somebody, how would I get them?  And then we‘d say, “I‘d never do it, but I want to take a step back and see how he did it,” and there‘s a probably a few of your people that would like to say, “What did the doughnuts really taste like?” 

OLBERMANN:  Yes, well, I can probably identify them by name, but I‘ll choose not to.  Cliff Van Zandt, the MSNBC analyst, former FBI profiler, and no doubt never prouder of either of those roles than just now. 

VAN ZANDT:  Just now. 

OLBERMANN:  Many thanks.

VAN ZANDT:  OK.  Thank you.

OLBERMANN:  That‘s COUNTDOWN.  I‘m Keith Olbermann.  And after that story, it is the appropriate time for me to remind you, as I sometimes do, that the program was produced by Greg Cordick (ph).  Dennis Horgan and Rich Stockwell are senior producers.  Stockwell stood up briefly for me on this.  Thanks. 

Izzy Povich is what is laughingly described as executive producer. 

“No, it‘ll be a good story!”

Good night, and good luck.

Our MSNBC coverage continues now with Rita Cosby LIVE & DIRECT.  Good evening, Rita.

RITA COSBY, HOST:  Good evening.  Thanks so much, Keith.

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

Copy: Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation

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