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'The Rachel Maddow Show'for **November 13, 2008**

Read the transcript to the Thursday show


November 13, 2008


Guests: Amy Klobuchar, Mark Begich, Jonathan Turley

RACHEL MADDOW, HOST: Hi, again, Keith. And thank you.

And thank you at home for staying with us for this hour.

Mostly, so far, I have been interested in the fact the Obama transition folks have been leaking to the press like a sieve, unlike they ever did on the campaign, this is denude (ph) during the transition.

But tonight, they leak something interesting enough on its own right to make some real, big headlines. Barack Obama is reportedly considering Hillary Clinton for secretary of state. That bombshell from Andrea Mitchell tonight-who will be here in just a moment to tell us all about it.

(voice over): It's a race to 60 Democratic seats in the Senate. So, it is dead serious. Georgia's runoff draws John McCain. Minnesota recount draws Al Franken's lawyers' fire.

And the Alaska first-time counting tabs (ph) -- draws a lot of attention now that the Democrat is winning. So, we're not going to elect a convicted felon to the Senate? One glass ceiling not broken in this election, I guess. The man who might be the new Democratic senator from Alaska, Mark Begich, joins us live.

And our lame duck continues. Finally, the administration is incompetent in a way that works for us. Their effort to hamstring the next administration is itself hung up on the Bush's bad math. Jonathan Turley is here.

And, a night after Senator Evan Bayh called on this morning for Joe Lieberman to apologize to his once fellow Democrats-some thought on Joe, the McCain supporter, and what ought to happen to his political future.

Plus, the Biden-Cheney get-together in Washington, use the force, Joe.

A Sarah Palin press conference, you heard me, Barack Obama's amazing effect on Iran, and a parliamentary brawl in Eastern Europe, oh, yes, there's tape.


(on camera): We begin tonight with breaking news about Barack Obama's potential cabinet. Two advisors to President-elect Barack Obama tell NBC's Andrea Mitchell that Senator Hillary Clinton is under consideration to be the new secretary of state. This report represents the first real thunderbolt of the transition period as Senator Clinton's name had not previously been rumored for a cabinet post.

Much more on the politics of this possibility in just a moment with Minnesota Senator Amy Klobuchar. But first, joining us now is NBC's Andrea Mitchell, who broke the Clinton news tonight.

Andrea, congratulations on the scoop and thanks, as always, for being here tonight.


MADDOW: How seriously does it seem that the president-elect is considering Senator Hillary Clinton for state? Did your sources give you any other names who are under consideration?

MITCHELL: There are a couple of other names under consideration. John Kerry-Senator John Kerry believed to want the job. Bill Richardson, a lot of pressure from the Latino community to have Bill Richardson, former U.N. ambassador, former energy secretary, have the job, and currently, governor of New Mexico.

Hillary Clinton has been mentioned as someone who is under consideration. Now, she was seen taking a flight to Chicago today. An advisor said that that was unrelated, that that was on a personal trip. We don't know whether she had conversations with Barack Obama about this. But it would seem that it wouldn't be mentioned to me that she was under consideration unless it was fairly serious, Rachel, because to pass her over for this, after passing her over for the vice presidency which only be, shall we say awkward?

MADDOW: Yes, seriously. Have you been able, Andrea, to do any reporting with the Clinton camp as yet, analysis on what her reaction to this potential offer might be?

MITCHELL: Well, people who know her well say that she could possibly be interested in this. Her office will only say that any questions about the transition have to be directed to the president-elect and his team. So, they will not comment in any way on any aspect of future jobs.

I know that all the talk, there was gossip about whether she would want to be on the Supreme Court someday, she has said, "Absolutely not," that that is not at all in her interest. And she has a big agenda if she stays in the Senate because she's very interested as you know, in healthcare. But that is really been preempted partly by the Senate Finance Chairman Max Baucus, and most largely by Ted Kennedy who is very much still the chairman and despite his illness, is back in Washington working on a whole healthcare agenda.

MADDOW: Andrea, you mentioned that this particular leak is a big deal because it does mean that it would be very hard to not offer it to her after this was floated. It would be seen as an insult. The Obama campaign went 21 months without allowing any sort of reporting like yours tonight. They did not leak very much. Do you think that this is a trial balloon? Do you feel like things are just being done very differently on the transition team than they were during the campaign for Team Obama? In terms of a process question, as a reporter, how different do things seem now?

MITCHELL: They, in fact-they don't seem different. Frankly, this has been really tough on all of us reporters who make our living by divining things that are happening in the transition. I've never covered a transition that was this tight, frankly. This was not something lobbed up. This was, you know, two sources, whom I've known for a long time. This was not a trial balloon that I could tell.

MADDOW: Andrea Mitchell, thank you so much for your work on this.

Congratulations, again, on the scoop. Thanks for coming on the show.

MITCHELL: My pleasure.

MADDOW: In leaking the possibility that Barack Obama is considering Hillary Clinton for secretary of state, the Obama transition team opens the door for roughly 1.7 zillion political questions. Starting with, really? Hillary Clinton, really?

During the bruising primary campaign, it was Senator Clinton who delivered most of the bruises and at a lot of them of the deepest bruises were about Obama's foreign policy and his ideas about diplomacy. Do you remember the 3:00 a.m. phone call ad? I certainly do. It keeps me up at night.

Senator Clinton's response to Obama's policy of talks with adversaries, notably Iran, without preconditions-she said that Obama's idea was naive and dangerous. Senator Clinton voted for the war in Iraq. Obama opposed that war. That difference as much as any arguably cost Clinton the nomination that Obama won. And do you recall the commander-in-chief test? That was as bruising as it got in the primaries and it was a direct shot at the now president-elect international bona fides.


SEN. HILLARY CLINTON, (D) NEW YORK: We need a nominee who can pass the commander-in-chief test, someone ready on day one to defend our country and keep our family safe. And we need a president who passes that test. Senator McCain will bring a lifetime of experience to the campaign, I will bring a lifetime of experience, and Senator Obama will bring a speech that he gave in 2002.


MADDOW: It is very easy for me to imagine Senator Clinton as a secretary of state. It is more difficult for me to imagine Senator Clinton as Barack Obama's secretary of state. How would Secretary Clinton work in an Obama administration? She's obviously qualified. But there is this on-the-record dispute between her and Senator Obama in the area of State Department affairs which is the area of diplomacy.

And what is the Obama team doing leaking the story to Andrea at all? There would seem to be an enormous political risk if she does not get the post now that this has been floated. Hillary Clinton is nobody's stalking horse.

Well, joining us now is Democratic Senator Amy Klobuchar of Minnesota.

Senator Klobuchar, thank you so much for joining us tonight.

SEN. AMY KLOBUCHAR, (D) MINNESOTA: Well, thank you, Rachel. Those were a lot of questions.


MADDOW: Yes, 1.7 zillion. I'm rounding up to the nearest 1.7 zillion, I have to say.

KLOBUCHAR: That was good.

MADDOW: What's your take on the idea of Secretary of State Clinton?

KLOBUCHAR: Well, first of all, as Andrea said, I mean, this is-she has two source that she, herself, said this wasn't an official trial balloon. This is speculation. And I think both of Senator Clinton and Senator Obama have not commented on this at all.

And I talked to Senator Clinton late last week for about 15 minutes on the phone. I will say she was in a great mood. She's very excited about the new senators coming in. She campaigned all across the country for our Senate candidates. She also talked about the healthcare work and her leadership in that area. So, she's very focused on her work in the Senate representing the people of New York.

You know, that being said, she's on the Armed Services Committee. She clearly showed a command of foreign relations both in her work as first lady and in the United States Senate. But, at this point, I think this is one of those Washington parlor games where a lot of names get tossed out. All of them are very qualified for many positions. And I think we just have to wait and see.

And as Andrea Mitchell said, the Obama team has been very closed lipped about the campaign as well as how they govern, and who they're going to put in place. And yet, when they announce things, they're very firmed in what they're going to do and very focused on what they want to do. And I think that's how they run things and it's a good way to do it.

MADDOW: The qualifications issue for Senator Clinton, of course, is completely off the table. I don't think anybody would contest that she would be ready and able to take on this job on the moment's notice.

But the political background here is out of the primaries. Senator Clinton was more direct and more damning toward Senator-now President-elect Obama on the issue of diplomacy and foreign policy than on any other subject. And that is reason, I think, that this is raising eyebrows, not just because Senator Clinton is a political celebrity. That's-I guess that's what I'm trying to get at, whether this could really work?

KLOBUCHAR: Well, you know, first of all, this is pure speculation. But I did want to comment on some of the things. You used a lot of examples from during the campaign.

But let's talk about what's been going in the last few months. Both Hillary and Bill Clinton made, I don't know, hundreds, over 100 appearances on behalf of Senator Obama. The things that I remember are the speeches at the convention and what they said about how Senator Obama was ready to govern and ready to be president. I remember Bill Clinton standing next to Senator Obama in Florida. I remember Hillary Clinton in Hibbing, Minnesota with me for Senator Obama. She has been all over the country, infusive, and when she talks about Senator Obama, his campaign, what he wants to get done.

So, you know, yes, they were in a tough primary but I think they're going to work together. And that will be in whatever capacity Hillary Clinton chooses. I'm looking forward to working with her in the Senate. We serve on the Environment and Public Works Committee together. And there is a lot to be done. And that's where she's focused when I talked to her last week.

MADDOW: Senator Klobuchar, I'm going to switch gears for a second here, and ask you about Senator Lieberman.


MADDOW: . talking about power in the Senate and the Democratic plans for the United States Senate. What is your view on whether or not Senator Lieberman should retain his chairmanship of the Homeland Security and Governmental Affairs committee? It's been a subject of a lot of consternation and a lot of comments, even just on this show.

KLOBUCHAR: Well, I believe we're going to be talking about that next week as a caucus. I know he met with Senator Reid. Clearly, I think, Senator Bayh, when he talked about the need for Senator Lieberman to talk to our caucus about what he did, apologized for some of the things that he said about Senator Obama. You know, we just disagreed with him.

On the other hand, in terms of him being part of our Democratic caucus, despite disagreements on the war and other things, he does vote with us on many, many-on many important things from climate change and the environment to healthcare and other things. Senator Lieberman has been there with us.

So, I think there are many in the caucus that want him to remain in our caucus. I would like him to remain in our caucus. But I think the question is, what his role will be. And that's something that we're all going to have to decide together.

MADDOW: And that's a closed door vote on whether he gets to hold to that gavel next week. I'm wondering if you could maybe sneak me in.

KLOBUCHAR: We'll see.


KLOBUCHAR: You know, Rachel, you know, I was thinking, Rachel, is maybe we need you to come to Minnesota to come and help count votes. We have 2.9 million ballots. There's a lot of work to be done.

MADDOW: All right. Well, I have plenty of spare time. So, yes.



MADDOW: Thank you, Senator Klobuchar. It's nice to see you. Thanks for being on the show.

KLOBUCHAR: It's great to be on. Thank you very much.

MADDOW: Three Senate races to go-three seats to potentially a filibuster-proof Senate majority for President Obama and his Democratic Party. Last we spoke, Democrat Mark Begich had a three vote lead on convicted felon, Senator Ted Stevens in the Alaska Senate race. It is a little less close at this hour. And Mayor Begich will be joining us for an exclusive interview-coming up next.

And, once again, we keep on eye on Bush's last days in office with our public service feature lame duck watch, quack-itude. Bad math may have prevented the Bush administration for jamming its will down America's throat at the last second. I will explain. It's very dramatic.

Meanwhile, will the administration be allowed to hide behind executive privilege after they are not executives anymore? Jonathan Turley will be here to tell us about that.

But first, just one more thing. If Senator Clinton does get the nod for secretary of state, I wonder if she'll have to do what everyone else who once had (ph) some administration job has to do? According to the "New York Times," that is to fill out the most expensive, some might say invasive vetting questionnaire ever.

Will they really make Senator Clinton answer, say, question number eight-describe the most controversial matters you have been involved with during the course of your career? How about number 63? Please provide any other information including information about other members of your family that could suggest a conflict of interest or be a possible source of embarrassment to you, your family or the president-elect. I guess it depends on what's your definition of suggest is.

If Senator Clinton is up for that job, please let her skip this. Just (INAUDIBLE).


MADDOW: On this show, I have been making a little bit of fun of the fact, but the 2008 election hasn't ended. And it is kind of funny to me, the interminable election. But given the actual news coming from Georgia, and Minnesota, and Alaska-it's sort of less funny than it is fascinating and serious at this point. This is still about 60 Democratic seats, potentially, in the United States Senate.

And if my non-scientific basic math in my head is accurate, there's a real chance tonight of a filibuster-proof, presumably, Pro-Obama Senate. Georgia is a tough runoff election. Minnesota is a practical tie heading for a recount. And Alaska-there's a lot o say about Alaska. We're get into that in just a second.

First, though, to Georgia.


MADDOW: First, to Georgia-where John McCain campaigns, again, today. McCain's appearance came as the Georgia secretary of state today certified last week's election results. It's official-neither Saxby Chambliss nor Jim Martin broke the 50 percent threshold. So, the runoff is definitely on for December 2nd.

Here's John McCain today trying to rally the troops and stave off a Democratic supermajority.


SEN. JOHN MCCAIN, ® ARKANSAS: I have seen the ability of the Democrats to organize, to get volunteers, and to get out the vote. I have seen it. And you have seen it as well. So, we're going to have to get out our vote. I didn't think I would be back on the campaign trail quite this early.



MADDOW: Neither did we, but it is nice to see you, senator.

To the Senate race in Minnesota-Republican Incumbent Norm Coleman leads Democrat Al Franken by just 206 votes. Today, Franken's campaign filed a lawsuit against one Minnesota county, seeking the names of would-be voters whose absentee ballots were rejected. Franken also planned to dispatch 1,250 volunteers, including 250 lawyers across the state to help with the recount.

Senator Chuck Schumer who heads the Democratic Senatorial Campaign Committee, he chimed in today, saying this, quote, "It won't be another Florida." I sure hope not. But it sometimes feels like it.

Finally, back to Alaska. Oh, Alaska, there's so much to say. First, score one for lawmakers under investigation as they seek re-election. The "Associated Press" called the Alaska House race for Republican Incumbent Don Young. Now, as for convicted felon and fellow Republican incumbent, Ted Stevens, in his race against Anchorage Mayor Mark Begich, there are ballots still to be counted.

The last time we spoke of this, about 24 hours ago, Begich had a three-vote lead, having overcome a 3,000-vote initial deficit. At the latest report, Begich reportedly leads by a larger margin, 814 votes now with 35,000 early and absentee ballots still left to tally.

One person who thinks the race will go Mark Begich's way-is Senator Stevens' pollster from the primary season, David Dittman. He told the "Huffington Post," quote, "I don't think Stevens can come back.

Besides inching the Democrats and Barack Obama one seat closer to 60, a Begich win would close one of Sarah Palin's proverbial doors to Washington. For example, Stevens wins, gets expelled, Palin runs in special election, and winds up in the Senate. So, it would be a double bonus for the blue among you, if Begich won.

How's it going to wind up at least in Alaska? How did Alaska become the most fascinating political state in the union this year?

Well, joining us now is Anchorage mayor, could be Alaska senator, Democrat Mark Begich.

Mr. Mayor, thank you for coming on the show tonight.


MADDOW: How confident are you that your lead will hold and how confident are you in the counting process at this point?

BEGICH: Well, I guess, I just say, we're-you know-the line we've been using, we're cautiously optimistic. We like where we're at today. And as I was walking into the studio tonight, one small lorry (ph) of Alaska have 69 votes come in and we gained 10 more. So, we're 824 ahead today.

So, that's a-you know, in Alaska politics, that's a super landslide. I know when I won my mayor's race in 2003, I won with a great landslide of 18 votes. So, I'm used to this. And it's what I've always said-this race will be a close race.

We still have counts on Friday and then again on Tuesday to finish it off. Almost 35,000 more votes to be counted. So, we're cautious, we're optimistic, but we're feeling like we are moving in the right direction.

MADDOW: Is it purely a topographical and geographical Alaska thing that it takes this long to count? Does it always take this long to count?

BEGICH: It-you know, in close races, we have, you know, this 1/3 of the vote that came in this time, came in from early votes, absentees, absentee walk-ins, and question ballots. This is one of the largest early vote numbers we've ever seen, almost 1/3 of the voting population. So, because of that, I think the system was just overburdened right away with that kind of number.

But the election workers are working double time. They're working very hard. We get them a lot of credit. We have great faith in our system up there. It's a paper trail as well as electronics. So, we feel very confident.

But there are votes that do come in from rural Alaska. And if they are coming in by mail, in other words, are being mailed out, and the planes are delayed because of weather conditions, it can take a little while. So, we're confident this is a normal process. It's a little bigger, like I said, about 1/3 of the vote coming in from early votes, absentee, that's a big number for us.

But that was something we worked double time on. We really pushed the envelope, getting people to vote early, get our votes into the bank basically early on. I even voted two weeks early. My vote wasn't counted until just yesterday. So, I was still out.

MADDOW: Do you expect that there will be a recount in this race regardless of what the outcome is?

BEGICH: Well, I think the number, the kind of threshold based on what's left to come in, if it's around 1,500 or 1,600 votes difference between myself and Senator Stevens, I'm, of course, hoping that's in my direction, there will not be an automatic recount. It's about 0.5 percent. If it's less 0.5 percent, it's automatic. It will just be a recount.

When there's this large of margins, it's a very difficult thing to change many votes in a recount in Alaska. In the old days, way back when there wasn't the system we have today, it was easier. There were votes that had to be retallied. But in this situation, I think, it's going to be very difficult. If we're well over 1,500 votes, it will be difficult to change those numbers.

MADDOW: Is the situation from hereon out, one that would be familiar to national observers in the sense that there will be lots of lawyers landing in Juneau, landing in Alaska, trying to monitor this. You and your campaign team is sort of hovering as well as Senator Stevens and his team hovering. Is everybody on site, in touch, really involved in a hands-on way with this?

BEGICH: Well, what's been happening literally, the day after the election, we dispatched folks out to these four regions. We dispatched them out to Nome, Fairbanks, Juneau, and Anchorage, because that's where the vote counts occur. And then they are sent in to the central office, and then tallied up. So, we dispatched people right away because we wanted to make sure as they were verifying the question ballots as well as the absentees that they met all the criteria and that nothing was left out.

We don't want to take anything for granted. But once you've done that process, the recount is a much more formal process of just reentering and reexamining minimal amounts of ballots. So, it's a very tight system after this vote count that occurs.

MADDOW: Mr. Mayor, I understand that you have met with President-elect Obama before. Has he offered any help, any suggestions, any advice to you at this point about this?

BEGICH: Well, not about this situation. I will tell you, it was several months ago during the campaign, I got a chance to have a few words with him privately in the mayors conference which I sit on the advisory board. And I had a chance to talk about Alaska issues.

I talked to him about the gas line and how important that was for not only Alaska but for energy independence for this country, as well as another item called NPRA, it's a very technical item but it's an oil lease sale up in Alaska. Both of these supported by environmental communities as well as development communities. I asked him to put them in his energy plan, which he did. And I was very pleased about that.

But in this situation, we did have the Vice President-elect Biden call and check in with the campaign to see how we were doing, as well as many other senators.

MADDOW: I can tell you that voter protection and election protection activists and folks still scarred by Florida 2000 are sort of on a hair trigger at this point to deploy any of the undecide Senate races with worry. So, you are comforting words, I'm sure, will get people to relax for another evening.

Mark Begich, Anchorage mayor, could be Alaska senator, thank you very much, sir.

BEGICH: Thank you very much, and it's an honor to be here.

MADDOW: So, what is going to happen to Joe Lieberman and the United States Senate? I get the distinct feeling that the Democrats in the Senate are gearing up to forgive and forget that he completely bailed on them and campaigned as aggressively as just about anybody against Barack Obama for president. I understand their logic here, I just not sure it holds up. And in a moment, I will tell you exactly why.


MADDOW: Lame duck watch, quack-itude continues. Wait until you hear about what the Bush administration screwed up now. This time, you will actually be glad they screwed it up, change you can feel relief about in just a moment with Jonathan Turley.

First, though, it's time for a few underreported, holy mackerel stories in today's news. Keeping an eye on the news from where we are at war these days is almost as reassuring with keeping your eye on your 401-K.

A suicide car bomber attacked an American military convoy in a crowded market area in eastern Afghanistan today. One American soldier was killed alongside at least 18 Afghan civilians.

Yesterday, there was a Taliban acid attack on a group of Afghan schoolgirls as well as a huge truck bomb in Kandahar that shook the entire city, flattened at least five buildings and left a huge crater as well as a death toll of at least six people.

Across the fuzzy, worrying border into Pakistan, in a country we are technically at war, but we sure are something, things are really bad there, too. In the city of Peshawar which used to be thought of as fairly safe. Two gunmen today blocked the car of an Iranian diplomat on a narrow bridge.

They shot his driver and kidnapped him.

Yesterday, in the same city, American aide worker Stephen Vance was assassinated after leaving his wife and his five kids on his way to work at an aide agency that was part of America's $750 million effort over five years to generate jobs and build infrastructure in the tribal areas, one of the least developed places on earth.

The night before, in the same city, a suicide bomber blew himself up at the city stadium at the first big sports event after the new secular government lifted a ban on sports. Three people were killed in that incident.

All of this comes as Pakistan's president asked secretary of State Rice at the U.N. to halt cross-border U.S. missile strikes targeting Pakistan's militants. You know, what we need here is some new American leadership that is smart enough to understand the complexity here, that isn't afraid to use force if that is what is needed, but that isn't afraid of diplomacy, either.

Pakistan and Afghanistan are just a disaster. Our government is going to need all hands on deck. But you know, maybe there is reason to hope. The election of Barack Obama is already causing some changes in our relationship with Iraq and Iran.

Iraqi Shiite politicians are saying they are inclined toward a new agreement between their government and ours now that the Republicans here, since they didn't believe the Republicans would really ever let U.S. troops withdraw, but they do believe that Obama will.

And in Iran, do you remember when Iranian leaders called for talks with the U.S. to resolve the whole nuclear issue? Well, now that Obama has been elected and has said he absolutely will negotiate with Iran, it seems like they are backing down. Called their bluff. Hah. The "Washington Post" today quotes Iran's deputy commander of the revolutionary guards on the issue saying, quote, "People who put on a mask of friendship with the objective of betrayal and who enter from the angle of negotiations without preconditions are more dangerous."

Spencer Ackerman points out today in "The Washington Independent" the revolutionary guard dude is sort of right. It is more dangerous for the Iranian hardliners to have a guy like Obama in the White House, because now, if the Iranians refuse to negotiate, they are backing away from what they have been righteously demanding from the international community. They look like idiots.

If they do agree to negotiate, well then, they can't really keep invading against us as the great Satan who's about to bomb them if we are sitting down, negotiating together in good faith.

You know, when your enemy's power is drawn largely from them making you out to be a cartoon villain that they're standing up against, stopping acting like a cartoon villain can really cut them down to size.


MADDOW: Sixty-seven-and-a-half days. No, that's not the number of shopping days you have left until Christmas. It's the number of days before millions of Americans get the gift we have been impatiently waiting for - new president.

In the meantime, the decider is still deciding. And for that reason, we hereby present the RACHEL MADDOW SHOW "Lame Duck Watch: Quackitude," because someone has to do it.

One of the reasons we came up with this whole "Lame Duck Watch" thing was to keep on eye on the inevitable flurry of regulations the Bush administration would try to get past Congress on their way out the door with nobody paying attention.

All the stuff they wanted to pass, but just never had the political capital to actually pass in the light of day. Well, in a somewhat delicious turn of irony, the seven-course gourmet meal of irony, perhaps, some of the regulations the Bush team thought they were slipping through, it turns out they can easily be reversed by the Obama administration because - this is very, very good - their math was wrong.

Their efforts to impose their will on the country and the next administration may be thwarted because they forgot to carry a one, or something. Finally, their incompetence benefits us.

Back in May, White House Chief-of-Staff Josh Bolton told federal agencies, "Hurry up. Finalize your new regulations by November 1st." Now, why November 1st? Because they thought if any new regulation passed more than 60 days before the start of the new administration, would kind of be written in stone and difficult to reverse.

The hilarious incompetence here is that the White House either forgot or they just didn't know about something called the Congressional Review Act of 1996, which according to "," means their math is wrong.

The actual deadline for passing new regulations is long past. It was May 15th, not November 1st, meaning anything passed after May 15th can be reviewed by the new Congress and effectively quashed. Oops.

So all those new energy and environmental regulations the White House is hoping to run through Congress, like green light for local law enforcement spying on us without criminal suspicion, the Bush administration overshot the deadline by five-and-a-half months or so.

Now, rather than trying to push through regulations at the last minute, particularly doing so very incompetently, President Bush might want to think about what happens after he leaves office, specifically how he might handle, say, congressional investigations - oh, I don't know - torture, the fired U.S. attorneys.

Up until now, the favorite line of defense in the White House has been to claim executive privilege. In fact that phrase is probably tattooed somewhere on Dick Cheney's body, like maybe the insides of his eyelids.

But once you are out of office, no more executive privilege, right? Wrong. The great reporter Charlie Savage of "The New York Times" reports today that even after President Bush leaves office, he may still be able to exercise his executive privilege powers.

Is this some wrinkle in the darn constitution? Actually no - it's darn Harry Truman. Truman's legal team basically invented this idea of post-presidency constitutional powers.

In 1953, when they were evading McCarthy's (UNINTELLIGIBLE) committee, and Congress never challenged them on it. So it turns out Bush and Cheney might be taunting us with claims of executive privilege for years to come. What happens to all of those investigations we want answers to, all of those subpoenas that have thus far been ignored?

Time to call in constitutional law professor Jonathan Turley. He's a professor at George Washington University School of Law. Professor Turley, thank you for joining us tonight.



MADDOW: Exercising executive privilege after you've left office - can they really do that? Really?

TURLEY: This is very controversial. In fact, Truman's own people later questioned whether they actually did have the right that they invoked. And it really has never been tested. It's never gone to the Supreme Court.

I personally have considerable doubts about it. There's no question that a former president under federal law can invoke executive privilege with regard to the release of presidential papers.

But this idea that President Bush can continue to invoke privilege even against the position of a sitting president, I think, is pretty shaky. Ultimately, a court may have two presidents in front of him, one sitting, one an ex-president, taking rivaling positions in executive privilege.

In my view, the court would be insane to take the position of the former president over a sitting president as what is required to protect the office of the presidency.

MADDOW: Sure. And it would be just incredible irony to see Dick Cheney arguing under the veil this unitary executive theory that a former president somehow trumps the sitting president in terms of authority. That would be incredible.

Well, if they did make a claim like that and there were future congressional investigations into criminal activity by the Bush administration officials, does that mean that they would essentially be on hold why the stuff got kicked up to the courts?

TURLEY: They would. They would seek an injunction and it might be granted. And I think the Supreme Court would very likely take up the case. But I think the problem here is how much of a negative legacy does George Bush really want to leave? He just spent the last eight years talking about how important the office of the presidency, how important it is to support a sitting president. This would be an incredible act, a very dysfunctional and negative attack on a sitting president.

But you know, this administration does not shy away from extreme positions. Remember, they lost executive privilege arguments as a sitting president. So they may not be afraid of losing if he was ex-president either. They had a very conservative judge recently say that their position with regard - people like Harriet Miers was virtually absurd.

So we have to wait. I mean, most of us would hope that they would have some adult supervision. But we haven't seen that in the last eight years on these claims.

MADDOW: Jonathan, there is speculation today that President Bush might issue a sort of blanket pardon for people involved in his administration's decision about torture.

Has anything like that ever been attempted before? Not just pardoning one person, but pardoning whole classes of government employees who might have participated in the decision-making process or implemented that decision?

TURLEY: Rachel, this is one of the most scary potentialities of the waning days of the Bush administration. As you know, even President Clinton really yielded to temptation and committed some great abuses using the pardon power, using it for a family member, which was itself outrageous. But you know, there's a lot of concern that President Bush could issue a blanket pardon for people who were involved in the torture program, the electronic surveillance program.

It would create a terrible precedent. Effectively, the president would be pardoning the world. Now, we have had presidents like Kennedy who pardoned people who were convicted under a controversial narcotics act. We also saw pardons for draft dodgers.

But this would be different. This would be a very generally-worded pardon for anyone associated with these programs. If he did that, I think that he would trigger a constitutional crisis where people demand a constitutional amendment to limit the power of the president.

You wonder, you know, on one hand, being the least popular president in modern history frees you up a bit. It may even embolden you. But this would be the final, really, nail in the coffin for Bush as a president who seemed at war with the constitution that he promised to uphold.

MADDOW: Jonathan Turley, George Washington University law professor - thank you for your time tonight. And I hope we never have to talk about the pardon thing again because it doesn't happen. Thank you.

TURLEY: Thanks, Rachel.

MADDOW: Maybe punishing Joe Lieberman for selling out the Democratic Party and running next to a negative against Barack Obama would be vindictive, juvenile, schoolyard politics. Fair point. It's a new day, right?

But maybe allowing Joe Lieberman back in the good graces and power of the party is just foolish politics, foolish grown up, noble politics. Hear me out in just a moment.


MADDOW: It's so satisfying that former Soviet republics are now enjoying the fruits of democracy. Here, in the Ukrainian parliament, political opponents reach across the aisle and slug the hooey out of each other. This melee among hasty guys in boxy grey suits broke out over a vote to sack the parliamentary speaker. I've got your bipartisan right here, Konstantin(ph)!


MADDOW: Sen. Joe Lieberman of Connecticut not only campaigned for his friend John McCain this year, but he went to the Republican National Convention and gave a speech trashing Barack Obama. He campaigned for down-ticket Republican senators. And he told right-wing talk show hosts how much he feared for the safety of the country if his party were successful in this election.

So what do the Democrats do with Lieberman in the Senate now? His fate has a whole new significance in light of the chance that the Democrats are within reach of that much-ballyhooed 60-seat majority.

Even if the Alaska race and the Minnesota race and the Georgia race all went Democratic, if Lieberman quit or became a Republican, the Democrats would end up at 59 seats, not 60.

So what should the Democrats do? We know what the risks of punishing Lieberman. He'll become mad. He'll become mob-Republican. He might resign. And then the Republican governor of Connecticut would appoint a Republican to replace him. No 60 seats. I get that.

But are there risks of keeping Joe Lieberman where he is, letting him stay chairman of the Senate Committee on Homeland Security and Governmental Affairs?

Well, here's an idea. Lieberman hasn't exactly been a crusader as committee chairman. His counterpart committee chair on the House side. That's Henry Waxman. He has aggressively investigated everything from Valerie Plame, Abu Ghurayb, the secret White House (UNINTELLIGIBLE) accounts, to veterans' healthcare to Karl Rove's political office in the White House and the Cheney energy task force, to the Pat Tillman killing in Afghanistan.

Joe Lieberman in contrast? He decided after campaigning on a pledge to investigate the stopping out of the government response to Katrina. He decided that once he had had that committee chairmanship and the power to subpoena all those documents and witnesses like he talked about on the campaign trail, he decided to just let it go, like floodwaters through an attic - just let it go.

Joe Lieberman has not actually been a crusading, inspiring figure of oversight while Bush has been in office. And he has been in charge of probably the premiere executive branch oversight body in the whole Congress.

So the risk of leaving Lieberman there is that we continue to have a woozy premier executive branch oversight body in Congress.

Alternatively, given that Lieberman expressed such deep, deep vituperative antipathy for the President-elect, Barack Obama, on the campaign trail this year. Maybe Chairman Joe will see the Obama administration as cause to transform himself into Mr. Oversight.

After all, wouldn't you expect that kind of thing from a guy who said that the next president of the United States is dangerously naive?


SEN. JOE LIEBERMAN (D-CT): If we think that - anybody who thinks you can go over there and sort of talk reason and hug and kiss Ahmadinejad and he's going to - just going to act better, that's just naive.


MADDOW: Hug and kiss, right. Wouldn't you expect, you know, some going after the president from the guy who told FOX NEWS radio that it is a fair question to ask whether the president-elect is a Marxist?


UNIDENTIFIED MALE RADIO HOST: Is he a Marxist as Bill Kristol says might be the case in today's "New York Times?"

LIEBERMAN: Well, you know, I must say that's a good question.


MADDOW; Wouldn't you expect some going after the president from the guy who told the Republican convention that the president-elect wants retreat in defeat from the battlefield and has shamefully undermined troops in the field?


LIEBERMAN: When others wanted to retreat in defeat from the field of battle, which would have been a disaster for the USA, when colleagues like Barack Obama were voting to cut off funding for our American troops on the battlefield.



MADDOW: Is it impossible to expect that by leaving Joe Lieberman as chairman of the Homeland Security and Governmental Affairs Committee in the Senate, he will use that position to go after this horrible, scary, awful, unpatriotic, possibly Marxist, borderline traitor new president who he has tried so hard to warn us against? Is that the risk of keeping Lieberman as chair of his committee?

On this program last night, Sen. Evan Bayh suggested that if Lieberman does anything like that, the Democrats in Congress could revoke his chairmanship at that time.


SEN. EVAN BAYH (D-IN): If he does retain his chairmanship, we still exert oversight over him and control over him. He doesn't have the ability to just do whatever he wants. The caucus has the right to remove him from that position at any time that he starts going off on some kind of (UNINTELLIGIBLE).


MADDOW: Right, but two things. First, why didn't you guys remove him when he refused to investigate Bush's response to Katrina? And second, are you really going to wait until he starts his first off-base, witch hunting investigation of Obama into whether or not he's a Marxist or a traitor, whatever? And then you're going to take away his gavel? I'm sure that's going to go over great.

The Democrats want 60 seats in the Senate so they want to hold on to Lieberman. But their plans for keeping him in his chairmanship, not punishing him at all, maybe just asking for an apology, those plans don't make sense. What makes sense to me is do to Lieberman what happened to the Democrats who supported Barry Goldwater or George Wallace in elections past. They lost their committee jobs.

And then yes, maybe he will quit or become a Republican. But you know what? Joe Lieberman is not going to vote with the Democrats on important and contentious stuff like Iraq and torture. He might not even vote with Democrats on other things. Since he told Glenn Beck on Election Day that he fears for the survival of the country if the Republicans can't filibuster the Democrats.


GLENN BECK, HOST, "THE GLENN BECK PROGRAM": If we don't, at least have the fire wall of the filibuster in the Senate, that in many ways America will not survive.

LIEBERMAN: Well, I hope it's not like that but I fear, and I think the filibuster is a key.


MADDOW: The filibuster is key. So Lieberman is probably not going to be with the Democrats in the 60-vote kill-the-filibuster-majority, right? Listen, Democrats. You have lost Lieberman anyway. If you boot Lieberman out of his chairmanship, I know you probably won't get your 60 votes.

But you do get a guy who politicized national security and homeland security in a disgusting fashion during this election. You do get him out of one of the most important security jobs in the government. And you do get your political soul and your political dignity back.

And you probably get the satisfaction of seeing Joe Lieberman trying to run for re-election as a Republican next time around in New England. And that would probably be hilarious.


MADDOW: Now, it's time for "Just Enough" with Kent Jones. Hi Kent, what have you got?

KENT JONES, POP CULTURIST: Good evening, Rachel. A young Web savvy Democratic voter has totally rocked the 2008 election. For instance, in New Hampshire, Democrat Vanessa Sievers defeated three-time incumbent Republican Carol Elliott for the office of County Treasurer of Grafton County.

Sievers is a 20-year-old Dartmouth College student and won by nearly 600 votes out of 42,000 cast after targeting voters at Dartmouth and Plymouth state through a $42 ad on Facebook.

Now, apparently, such tactics are dirty pool for the 66-year-old Elliott who told the "Valley News of Lebanon, quote, "It was the brainwashed college kids that made the difference. You've got at teenybopper for a treasurer. I'm concerned fro the citizens of Grafton County."

Imagine, young people, using a Web-based grassroots organization to unseat entrenched Republicans. That is upsetting. You meddling kids, and your democracy.

Next, according to the "Hollywood Reporter" a movie based on the clasic board game "Monopoly" is in the works. Ridley Scott, the genius who directed "Blade Runner" and "Gladiator" is officially tasked to irect. Scott said he'd like to update "Monopoly" to reflect our current economic climate. So before the game starts, the players have to give the banks $700 billion.

And finally, the economy got you down? A study at the University of Maryland School of Medicine found that listening to your favorite music might be good for your heart. Ten healthy, nonsmoking volunteers listened to music they enjoyed which caused the inner lining tissues of their blood vessels to expand and voila, increase blood flow. Let's try it. I'll play something that I enjoy and we'll see what happens.



Do you feel better?

JONES: Nothing? Nothing? Come on, nothing? Poor Rick Astley.

MADDOW: Thank you, Kent. Yes, I feel good. I'm not sure that's why.

Thank you for watching tonight. We'll see you here tonight tomorrow night. Until then, you can check object our podcast at iTunes. "COUNTDOWN" with Keith Olbermann starts right now.



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