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'The Abrams Report' for April 8

Read the complete transcript to Thursday's show

Guests:  Gary Hart, Raymond Tanter, Victoria Toensing, Joel Androphy, Aitan Goelman, Bernie Ward, Jack Burkman

ANNOUNCER:  Now THE ABRAMS REPORT.  Here is Dan Abrams.

DAN ABRAMS, HOST:  Hi, everyone.  Tough questioning under oath and in public for national security adviser Condoleezza Rice, from the 9/11 commission including what she knew about the al Qaeda threat, why the administration didn‘t do more to increase security in the months prior to September 11.  We‘ve assembled our own bipartisan team to assess her performance. 

Plus, just released transcripts of closed-door meetings between the Tyco judge and the holdout juror, Ruth Jordan.  That led to a mistrial.  Jordan saying she felt very, very scared and alarmed about threats she had gotten in the mail and over the phone.  But we ask, was that really enough for the judge to declare a mistrial? 

And jury selection grinds on in the Scott Peterson murder trial amid claims from the defense team that too many of the potential jurors have their minds made up about the case, but just aren‘t admitting it.  The defense saying they‘ll likely ask to move the trial again.  But could that, might that actually happen?  We‘ll get a live report. 

But first, national security adviser Condoleezza Rice, under oath, before the 9/11 commission for almost three hours.  She answered questions about what she knew, when she knew it, and what, if any, action could have been taken to prevent 9/11.  At times it was theoretical, almost wonkish (ph), while at others it got right down contentious. 

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, NATIONAL SECURITY ADVISER:  As your hearings have shown, there was no silver bullet that could have prevented the 9/11 attacks.  In hindsight, if anything might have helped stop 9/11, it would have been better information about threats inside the United States, something made very difficult by structural and legal impediments that prevented the collection and sharing of information by our law enforcement and intelligence agencies.  Let me read you some of the actual chatter that was picked up in that spring and summer. 

Unbelievable news coming in weeks, said one.  Big event.  There will be a very, very, very, very big uproar.  There will be attacks in the near future.  Troubling, yes.  But they don‘t tell us when, they don‘t tell us where, they don‘t tell us who, and they don‘t tell us how. 

RICHARD BEN-VENISTE, 9/11 COMMISSION MEMBER:  You acknowledged to us in your interview of February 7, 2004, that Richard Clarke told you that al Qaeda cells were in the United States.  Did you tell the president at any time prior to August 6 of the existence of al Qaeda cells in the United States? 

RICE:  First, let me just make certain...

BEN-VENISTE:  If you could just answer that question...

(CROSSTALK)

BEN-VENISTE:  ... because I only have a very limited time. 

RICE:  I understand, Commissioner, but it‘s important...

BEN-VENISTE:  Did you tell the president? 

RICE:  ... it‘s important that I also address...

(APPLAUSE)

RICE:  It‘s also important, Commissioner, that I address the other issues that you have raised.  So I will do it quickly, but if you‘ll just give me a moment. 

BEN-VENISTE:  Well my only question to you is whether you...

RICE:  I understand Commissioner...

BEN-VENISTE:  ... told the president. 

RICE:  ... but I will—if you‘ll just give me a moment, I will address fully the questions that you‘ve asked.  I really don‘t remember, Commissioner, whether I discussed this with the president.  I...

BEN-VENISTE:  Thank you. 

RICE:  ... remember very well that the president was aware that there were issues inside the United States.  He talked to people about this.  But I don‘t remember the al Qaeda cells as being something that we were told we needed to do something about. 

(END VIDEO CLIP)

ABRAMS:  We‘ve assembled an all-star team to talk about Dr. Rice‘s testimony.  Former Democratic senator and presidential candidate Gary Hart who currently co-chairs the U.S. Commission on National Security/21st Century.  They issued a report in January 2001 about what needed to be done to prevent a terror attack.  Raymond Tanter, former National Security Council member in the Reagan administration and MSNBC analyst, Victoria Toensing, former Justice Department official in the Reagan administration where she led terrorism prosecutions.  She‘s also former chief counsel to the Senate Intelligence Committee and terrorism expert Roger Cressey, who worked closely with Richard Clarke in both the Clinton and Bush White House as a member of the National Security Council.  He is an NBC News analyst.  Thank you all for coming on the program. 

Before we start getting into some specific contradictions between Clarke and Condoleezza Rice, let me just get a general reaction from each of you to Condoleezza Rice‘s testimony.  Let me start with Senator Hart. 

GARY HART, FMR. PRESIDENTIAL CANDIDATE (D):  I think what she testified was pretty predictable.  I, at least, didn‘t think, despite all the media hype leading up to this, that there would be any startling revelations or new ground broken.  She essentially said, as I understand it, that the administration was doing all that it could. 

ABRAMS:  What do you make of that based on what you know and what you knew at the time? 

HART:  Well, not being inside the administration, I obviously can‘t know.  But I have heard Mr. Clarke.  He testified before our commission.  And I think he is an honest and trustworthy man, and I think he‘s accurately reporting what was going on according to what he saw, and what he saw was an administration not terribly concerned about the immediacy and urgency of terrorist attacks. 

ABRAMS:  Mr. Tanter, what did you make of the testimony? 

RAYMOND TANTER, FMR. NAT‘L SECURITY COUNCIL MEMBER:  Well, Dan, I felt that she did very well.  For example, she pointed out that president met with the director of Central Intelligence on a daily basis, and 40 times al Qaeda appeared on the agenda.  That in the period in which the threat increased on July 5, that the department of state issued five or six security warnings, advisories, to its embassies abroad.  DOD did the same thing with respect to security alerts.  The FAA issued warnings specifically referring to the possibility of hijackings.  So I think the U.S. government responded fairly well to the July 5 situation, just as the government in December of ‘99 did, Dan. 

ABRAMS:  Mr. Cressey.

ROGER CRESSEY, NBC NEWS ANALYST:  Well, since I was part of the administration during this time, let me say that what Dr. Rice‘s testimony confirmed for me was that there was more continuity between the end of the Clinton administration and the beginning of the Bush administration than a change in policy.  A lot of the decisions that were made after 9/11 were based on recommendations and options that we had prepared at the beginning of the administration, number one. 

Number two is the issue is not whether or not the president paid sufficient attention to the al Qaeda threat, but whether or not sufficient action was taken by the bureaucracy and by the White House.  And I think that‘s going to continue to be the central part of the debate in the weeks ahead. 

ABRAMS:  And just to be clear, you agree more with Mr. Clarke‘s analysis than with Dr. Rice‘s when it comes to whether enough action was taken in the Bush administration, particularly in comparison to the Clinton administration? 

CRESSEY:  Well, I think the issue was a sense of urgency.  Was the—was al Qaeda dealt with as an urgent matter in the first eight months of the administration?  From my own personal experience, I do not think that was the case.  It was important, but it was not urgent. 

ABRAMS:  Victoria Toensing. 

VICTORIA TOENSING, FMR. DOJ OFFICIAL:  Well, first of all, she gets an A-plus for dealing with Richard Ben-Veniste and the way he talked to her.  She showed that she knew her subject matter.  She was a strategic thinker, and she had several themes with—some of your prior guests have mentioned them, but one I would like to point out, because I was very concerned about it in the 1980‘s when I had to deal with the terrorism investigations in cases, is that we are—were legally and structurally, as Dr. Rice said, ill equipped to deal with terrorism through any kind of intelligence mechanism, because there was this wall between the FBI and those who knew about law enforcement, and those who knew about intelligence. 

When I was in the middle of a hijacking in the 1980‘s in TWA 847, we had American hostages and we had a wiretap out where we thought that we could get information about the hijacking.  We had to take it down because we were informed that it was then against the law to have intelligence wiretaps up and get information about any kind of crime. 

UNIDENTIFIED MALE:  Right.

TOENSING:  That was changed in the Patriot Act. 

ABRAMS:  All right.  Let me do this.  I want to play—compare for a moment something that Condoleezza Rice today said and something that Richard Clarke had said in his testimony.  And then I‘m going to ask Senator Hart, whose commission heard a lot of testimony about this very issue, whether—what his understanding was at the time.  Let‘s listen. 

(BEGIN VIDEO CLIP)

RICHARD CLARKE, FMR. COUNTERTERRORISM CHIEF:  Information in the intelligence community‘s knowledge about al Qaeda having thought of using aircraft as weapons.  That information was old, relatively speaking, five years, six years old. 

RICE:  To the best of my knowledge, Mr. Chairman, the—this kind of analysis about the use of airplanes as weapons actually was never briefed to us. 

(END VIDEO CLIP)

ABRAMS:  Senator Hart, did your commission warn of the possibility, hear testimony about the possibility of the use of aircraft as weapons? 

HART:  No.  And we had no authority or mandate to do so.  This was, first of all, not a commission on terrorism.  This was a—the most comprehensive look at U.S. national security since 1947.  We took two and a half years.  And by the way, to correct your introduction that commission went out of existence in the summer of 2001, so it no longer exists.  What we did uniformly believe, all 14 of us, seven Democrats, seven Republicans, was that terrorists were going to attack this country, and that Americans were going to lose their lives in large numbers, and we felt fairly urgently about it. 

I met personally, after the commission went out of existence, with Dr.  Rice in the White House and urged her to get going more urgently about protecting this country.  And that date was September the 6, 2001. 

(CROSSTALK)

HART:  So we didn‘t have the capability or the resources to forecast the myriad of kind of scenarios.  And I must say, I think it‘s disingenuous for the people who were elected to protect this country to say well, no one told us what day and that it would be airplanes and that it would be the World Trade Center.  That‘s just totally unacceptable. 

(CROSSTALK)

ABRAMS:  Hang on a second; let me ask a follow-up question.  What did Dr. Rice say to you on September 6 when you approached her?

HART:  She said I‘ll talk to the vice president about it.

ABRAMS:  All right, who wanted to get in, Raymond Tanter? 

TANTER:  Yes, I do, Dan. 

ABRAMS:  Yes, go ahead.

TANTER:  With all due respect, Senator Hart, it‘s not Condoleezza Rice‘s responsibility to take care of the Federal Aviation Administration.  The FAA, in fact, however, issued five security warnings to the airlines concerning the possibility of hijacking in the period of July 5 through September 10...

HART:  Yes and the agencies weren‘t talking to each other.  And that‘s why we recommended the creation of a new federal department with statutory and budgetary authority to make these people talk to each other.  So to say this outfit was doing one thing and another outfit was doing another, they weren‘t talking to each other...

(CROSSTALK)

HART:  ... and that‘s why we told the president in January of that year to consolidate the resources of the federal government. 

TOENSING:  You know what?  I can‘t stand hearing all this kind of blame being thrown around.  The truth is that the government was not equipped in any way to deal with this kind of attack.  And I would...

(CROSSTALK)

TOENSING:  ... have rather heard questions today...

ABRAMS:  Victoria, that‘s just sort of a copout, to just say oh, well you know what...

TOENSING:  No, no Dan.

ABRAMS:  ... there was nothing we could have done...

TOENSING:  Dan...

ABRAMS:  We never could have done anything...

TOENSING:  Dan, there was...

(CROSSTALK)

TOENSING:  No, wait a minute.  No, it‘s not.  You haven‘t lived there and had these things come across your desk and looked at the laws and know that if you send it to Congress, they may even make it worse.  Now, I think I would have liked to have heard questions today about what do you have—what is lacking today?  What is it if we had the same kind of message?  Hey, let me tell you all, there‘s a big thing that‘s going to happen next week.  What are you going to do about it when you just have that kind of information?  These things are damned if you do, damned if you don‘t...

(CROSSTALK)

TOENSING:  ... and the very act, the Patriot Act...

(CROSSTALK)

ABRAMS:  ... Patriot Act is after the fact.  I don‘t want to get into the Patriot Act.  I want to talk about what we knew before 9/11.  And I want to—Mr. Cressey, do you agree with Victoria‘s analysis?

CRESSEY:  Well, it is a lot more difficult than people think.  I‘ll say that.  That said there‘s two issues here.  The first is what was the threat reporting that we received?  In the case of potential hijackings, it was key towards the use of hijackings as a way to perhaps free al Qaeda sympathizers or al Qaeda operatives in U.S custody, the blind Sheikh (ph), for example.  We had threat reporting that his son was interested in hijacking aircraft and possibly doing an exchange for the people hijacked in exchange for his father.  That‘s one part. 

The second issue is did the administration do enough to push the FBI in the summer of 2001, to go to the field offices, to go to the joint terrorism task forces, and say is there anything out there that we are not seeing that we need to bring into the policy process?  And that‘s going to be the central issue in the coming weeks. 

ABRAMS:  All right, let me take a quick break here, as I just realized that Victoria is the one I know best, so I‘m calling her by her first name and everyone else by a title.  So, Ms. Toensing, I apologize to you.  We‘re going to take a quick break. 

When we come back our distinguished team will talk about that confidential White House briefing memo referred to several times today, titled “Bin Laden Determined to Attack Within the United States”, written a month before 9/11.  Another question now about whether the memo should be released to the public.

And newly released transcripts from the Tyco trial show exactly what led to the mistrial.  The holdout juror said she felt there were people who thought she was somehow very, very wrong and bad for holding out for an acquittal and feared for her safety.  But did the judge need to end the six-month trial over that? 

And the FCC proposes a nearly half million-dollar fine for allegedly indecent material from Howard Stern‘s radio show.  Stern calls the FCC fine more of a government witch hunt against him.  We‘ll debate whether the punishment fits the crime. 

Your e-mails, abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a confidential White House memo about the threat of bin Laden written a month before 9/11 warned of possible hijackers within the United States, among other things.  Now 9/11 commissioners demanding that the memo be released to the public.  Will the administration do it?  It‘s coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I asked you whether you recall the title of that

PDB.

RICE:  I believe the title was bin Laden determined to attack inside the United States. 

(END VIDEO CLIP)

ABRAMS:  It‘s an explosive title, and that PDB or presidential daily briefing, while still officially classified, was partly made public today.  The 9/11 commission now asking for it to be declassified.  And let me just play a little bit more of the sound from today of Condoleezza Rice talking about that very memo. 

(BEGIN VIDEO CLIP)

RICE:  This particular PDB had a long section on what bin Laden had

wanted to do, speculative much of it, in ‘97, ‘98, that he had in fact

liked the results of the 1993 bombing.  It had a number of discussions of -

·         it had a discussion of whether or not they might use hijacking to try and free a prisoner who was being held in the United States, Rasam (ph).  It reported that the FBI had fulfilled investigations underway. 

But I can also tell that you there was nothing in this memo that suggested that an attack was coming on New York or Washington, D.C.  There was nothing in this memo as to time, place, how or where.  This was not a threat report to the president. 

(END VIDEO CLIP)

ABRAMS:  Senator Hart, is that the sort of analysis that you were saying sort of gets you, when someone says, oh, we didn‘t know specifically New York, Washington, et cetera? 

HART:  Yes.  I think, you know, these are ships passing in the night.  She is saying if somebody had told us more specifically, then we would have done something about it.  And what I‘m arguing, and I think other people are arguing, is we knew a threat was there.  What did you do systemically throughout the federal government to increase alertness, awareness and preparation?  And it‘s that gap, I think, that‘s got everybody confused.  I am basically arguing we had enough information to put this government on a higher state of alert, from the White House on down, and it just didn‘t happen. 

ABRAMS:  Mr. Cressey, you were in the administration at the time.  Is Dr. Rice giving it a fair analysis? 

CRESSEY:  Well, the PDB was not shared with the counterterrorism office, so I would be very interested in seeing it.  For that reason alone I hope it‘s declassified.  My understanding, though, is that she is accurate in portraying it as a historical, analytical piece.  But what Senator Kerry said today, the declassification that he did about the FBI information in that memo, if what he said is accurate and was not taken out of context then that was actionable information.  And so I want to take a real hard look at that, if in fact it is declassified. 

ABRAMS:  Mr. Tanter? 

TANTER:  Yes, I think I agree with my colleague Roger Cressey.  I was on the National Security Council staff in the Reagan-Bush administration, and presidential daily briefs are very important documents.  But they don‘t have the same status as a national intelligence estimate, which is the considered judgment of 13 or so members of the national intelligence community.  So I think what Dr. Rice is suggesting is that there were some speculations about the possibility of a threat, but you‘d have to look at the FBI reporting to see whether or not the kind of threat reporting that Cressey mentioned results in the kind of actionable intelligence. 

ABRAMS:  And Mr. Tanter, do you have any problem with it being declassified? 

TANTER:  I would declassify and redact, that is to say blacken out those sections that have to do with sources and methods. 

(CROSSTALK)

ABRAMS:  Ms. Toensing, I want to ask you another question, just a very quick answer on this one.  Do you support declassifying? 

TOENSING:  Reluctantly, yes...

UNIDENTIFIED MALE:  OK.

TOENSING:  ... because it will probably be leaked...

ABRAMS:  All right...

TOENSING:  ... so the White House might as well get it out. 

ABRAMS:  I want you to listen to this interchange about—that came from one of the Democratic commissioners talking about what I think is a very important discrepancy here between what Dr. Rice is saying about what the FBI knew and what the commissioners are saying about what the FBI is telling them.  Let‘s listen.  This is number four on our list here.  Let‘s listen. 

(BEGIN VIDEO CLIP)

RICE:  The FBI tasked all 56 of its U.S. field offices to increase surveillance of known suspect terrorists and to reach out to known informants who might have information on terrorist activities. 

JAMIE GORELICK, 9/11 COMMISSION MEMBER:  You indicate in your statement that the FBI tasked its field offices to find out what was going on out there.  We have no record of that.  The Washington field office, international terrorism people said they never heard about the threat, they never heard about the warnings.  They were not asked to come to the table and shake those trees.  SACs, special agents in charge around the country, Miami in particular, no knowledge of this.  And so I really come back to you—let me ask one other thing.  Have you actually looked at the (UNINTELLIGIBLE) the messages that the FBI put out? 

RICE:  Yes. 

GORELICK:  To me—and you‘re free to comment on them—they are feckless. 

(END VIDEO CLIP)

ABRAMS:  Victoria Toensing, what do you make of that? 

TOENSING:  Well, I think it‘s not an unusual situation in the government, when you sit there and you see a lot of different threats cross your desk.  It‘s very hard to put it in a specific perspective that something is going to happen, unless you‘ve got something beyond what we‘re just...

ABRAMS:  But she‘s saying...

TOENSING:  ... talking about the president‘s briefing. 

ABRAMS:  But she‘s saying the FBI tasked all 56 of its field offices to increase surveillance of known or suspected terrorists, and then the commissioners are saying, well, wait a second, we‘ve spoken to the FBI offices and they‘re saying we didn‘t know anything about this. 

TOENSING:  And Dan that could very well have happened.  That she was told that that occurred and they didn‘t do it in any kind of manner that meant anything.  We‘re going to have to wait until the FBI panel comes in next week and find that out...

(CROSSTALK)

TOENSING:  ... but she could have very well been told that. 

ABRAMS:  Very quickly, Senator Hart, do you view that as an important distinction? 

HART:  Yes, yes.  I think the—and I think we‘ve got to keep in mind here that books are being written 60 years after Pearl Harbor about what people know and didn‘t know.  This commission has to lay out a record for all time, and that means err on the side of declassification. 

ABRAMS:  All right.  Senator Hart, Raymond Tanter, Victoria Toensing, Roger Cressey, thanks so much for coming on the program.  Appreciate it.

TANTER:  A pleasure.

ABRAMS:  You can read and watch portions of Condoleezza Rice‘s testimony on the MSNBC Web site.  Transcripts and video clips can be found at terrorism.msnbc.com.  And after you read her testimony let us know if you think Dr. Rice made the case.  It‘s our question of the day.  So far we‘ve received over 50,000 responses.  So far, 47 percent say Dr. Rice made the case, while 53 percent say she did not. 

Coming up, why did the judge in the Tyco case grant a mistrial?  Newly released transcripts provide some answers about exactly what the supposed holdout juror said about a letter and phone call she received, anonymous threats.  But should that have really been enough to end the six-month trial that cost 12 million to prosecute? 

And the FCC continues its crackdown.  Today it‘s proposing a nearly half million-dollar fine against six radio stations which aired a sexually explicit Howard Stern show last year.  The question—are they going too far, or not far enough?  We‘ll debate. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Welcome back.  Why did the judge in the six-month Tyco trial end the case without letting the jury reach a verdict?  Well new documents released yesterday provide some answers.  Former Tyco execs Dennis Kozlowski and Mark Swartz accused of stealing $600 million from the company.  Some members of the jury say they were—quote—“within minutes of at least some guilty verdicts.”  But Friday Judge Michael Obus declared a mistrial because of what he called outside pressure on one of the jurors. 

Today we learned that juror, Ruth Jordan, believed to be the holdout and the one accused of flashing an OK sign to the defense team told the judge she received a threatening letter after her name was published in two major newspapers.  The newly released court record show Jordan told the judge—quote—“I am so frightened about everything and this says to me that there are people out there that think I am somehow very, very wrong and bad and have done something terrible and that they are blaming me and it scares me so.”

Question—is that enough for a mistrial?  I‘m joined now by white-collar defense attorney Joel Androphy who is sticking to his guns and says the trial should not have been ended and former federal prosecutor and white-collar defense attorney Aitan Goelman, who says the judge had to do what he did.

All right, Joel, you came on this program immediately after and we agreed that we that we have to see what exactly happened behind closed doors.  Now we‘ve gotten a chance to see what happened.  You still say the judge shouldn‘t have declared a mistrial?  Why? 

JOEL ANDROPHY, WHITE COLLAR DEFENSE ATTORNEY:  From what the transcript shows, this person, this juror, was not intimidated by outside forces.  It was inside forces in the jury room.  There is nothing in that letter that suggests anything other than what would be normal, that people would be upset with her.  There was no specific...

ABRAMS:  Scares me so...

ANDROPHY:  ... threats or anything like that. 

ABRAMS:  Scares me so?

ANDROPHY:  Pardon? 

ABRAMS:  She said—quote—“scares me so.”

ANDROPHY:  It was obvious from reading the transcript that she was concerned.  It really—I think in many ways it‘s a red herring.  The reason that she wanted out is she didn‘t want to deliberate any further with the jurors.  What scared her was the further deliberations.  There was no evidence of anything in that letter from any outside forces that would scare anybody. 

ABRAMS:  Aitan.

AITAN GOELMAN, FORMER FEDERAL PROSECUTOR:  I couldn‘t disagree more, Dan.  I think that any judge given that record would have had to declare a mistrial.  I mean it‘s not just the quote where she says I was scared, it‘s the question that the judge put to her that she gave that as a response to.  The judge said bottom line can you continue to deliberate?  And she said I don‘t know.  I‘m terrified.  I‘m worried about people thinking I‘m a bad person.  I‘m worried about it being a pariah.  I‘m worried about my children.  And if you have a juror who can‘t say to a judge I can continue deliberating, I can be fair, I can put aside everything that I‘ve heard outside and concentrate on the evidence and deliberate with my fellow jurors, I mean you‘re basically asking for any conviction to be overruled. 

ANDROPHY:  Well, the juror never said that she could deliberate any further.  It was obvious that these outside forces were just an excuse.  She could have deliberated.  She just didn‘t want to pursue all the antagonism and the acrimony in the jury room.  It looked like she was weakening.  It looked like in some respect like some of the other jurors were weakening. 

ABRAMS:  Let me read more what Aitan is referring to specifically coming from the transcript. 

She said—quote—“I do feel a concern that my life has permanently changed and that there is going to be, I‘m going to look like some kind of pariah and in some people‘s minds for the rest of my life some people will give me credit and good faith, but a lot of people won‘t.”

But Aitan, you know what about the argument that she could have walked into the judge‘s chambers and said exactly the same thing?  You know what?  I‘m scared about what people are going to think about the verdict, if I‘m the lone holdout, et cetera.  You know the judge would likely then say, OK, I understand it, but go back and deliberate, right? 

GOELMAN:  It depends.  I mean if he asked her, can you be a fair juror?  Can you continue to deliberate in good faith?  And she was unable to confidently say, yes, I can, I don‘t think he had much of a choice.  I think it‘s a no-brainer for him then.  And this is a woman who before had you know received phone calls, had been on the cover of the “New York Post” and each time the judge was able to illicit from her the statement that she thought she could continue to deliberate.  So I don‘t know if it‘s fair to say that you know this is a woman who was crying wolf, she doesn‘t want to have to make a hard decision, and so she‘s looking for a way out of it. 

(CROSSTALK)

ANDROPHY:  Dan, in many ways it goes back to the fact that maybe this jury should have been sequestered, maybe more protection should have been...

ABRAMS:  Maybe.

ANDROPHY:  ... in place so this juror didn‘t receive letters, this juror didn‘t receive phone calls...

ABRAMS:  Well that—let me play another piece of sound.  This is from “60 Minutes”.  Ruth Jordan talking about a phone call she received during deliberations. 

(BEGIN VIDEO CLIP)

RUTH JORDAN, TYCO JUROR:  I think it was like—oh, I don‘t know.  It might have been 4:00 in the morning or something.  I was asleep.  And the phone rang and I picked it up, and this voice said how much was the Kozlowski team paying you?  And I just said I don‘t know what you‘re talking about, and hung it up.  Hung up the phone. 

(END VIDEO CLIP)

ABRAMS:  Joel, still not enough (UNINTELLIGIBLE)?

ANDROPHY:  That‘s why you sequester juries.  That‘s why systems should have been implemented...

ABRAMS:  All right, but they weren‘t...

(CROSSTALK)

ABRAMS:  We can talk about what could have been done or what should have been done...

ANDROPHY:  No, that is not enough. 

(CROSSTALK)

ANDROPHY:  That is not enough.  There was nobody threatening this lady.  There‘s nobody threatening her in any respect that should stop this trial from proceeding and the deliberations from proceeding...

ABRAMS:  Aitan...

ANDROPHY:  That is not enough. 

ABRAMS:  ... does the judge have any obligation to sort of do everything that he can to encourage the juror to go back and continue deliberating, when you‘re talking about a six-month trial where $12 million have already been expended on the prosecution? 

GOELMAN:  Well, I mean Dan, the judge—nobody wanted this trial to end - well...

ABRAMS:  The defense did.

GOELMAN:  ... with the possible exception of the defense. 

(LAUGHTER)

GOELMAN:  But the judge did not want this trial to end without a verdict.  I think that you know in denying repeated defense motions for a mistrial, he really was playing it out and just ultimately got to the point where he couldn‘t do it anymore.  I mean it would have been silly for him to call her back in and give her kind of a loaded question, saying I‘m the judge, and if I instruct you that you‘re to put aside everything that you heard outside the courtroom and deliberate fairly, could you obey my order?  I mean what is the affirmative answer to that kind of question really worth, when you have that long record before about pressures and about her feeling scared and not able to...

ABRAMS:  Judges do it every day...

ANDROPHY:  If she was being selected as a juror, if this case started in the beginning and she was answering those questions the same way in a jury voir dire when the jury was being questioned by the lawyers, she wouldn‘t have been precluded from being a juror.  She wouldn‘t have been struck.  She would have been on this jury.

ABRAMS:  Got to wrap it up.  Joel Androphy, Aitan Goelman, thanks a lot.

GOELMAN:  Thanks Dan.

ABRAMS:  Coming up, sifting through the possible jurors for the Scott Peterson case to find one man who‘s facing a felony count of his own.  We‘ll tell you about him, plus, defense efforts to get another change of venue.  It‘s coming up in a live report. 

And a sexually explicit Howard Stern program from last year could cost the radio conglomerate that aired it almost a half million dollars in FCC indecency fines.  It is the first time the FCC has proposed levying more than one fine for a single show.  The question we will debate—is the FCC muscle-flexing going too far? 

(COMMERCIAL BREAK)

ABRAMS:  In the Scott Peterson trial both sides trying to whittle down the list of prospective jurors.  So far 29 have made it through to the final pool of eligible potential jurors -- 29.  In the meantime, it seems defense attorney Mark Geragos is trying to build his case for another change of venue, meaning he wants to move the case again.  This, after last week‘s courtroom fireworks when Geragos discovered that one woman allegedly attempted to get on the jury in order to just find Scott Peterson guilty. 

KCRA reporter Edie Lambert joins us now from the courthouse.  So Edie, is Mark Geragos really going to try to move the case again? 

EDIE LAMBERT, KCRA CORRESPONDENT:  My sources close to the defense say the answer to that is yes.  They are still building what they call their record every day in court, collecting evidence, as each person—each potential juror comes in and says, yes, I think Scott Peterson is guilty, either in open court or in their questionnaire.  They will use that for their motion to try to move the trial.  Now, I don‘t know exactly when he plans to file that motion, but I do know that he plans to argue that if enough people have prejudged this case here in San Mateo County, he believes the case should be moved to the most populous country, which here in California would be Los Angeles. 

I can also tell you, Dan, that Mark Geragos says the thing that keeps him up at night in this case, the thing that gives him nightmares are those jurors that you mentioned, that may be coming in with an agenda and try to hide that when they‘re questioned in court, trying to get on the jury to either convict or for another reason.  He‘s already confronted one in court so far, and my sources tell me there are two more so-called stealth jurors that the defense plans to actually go after in the weeks ahead as they come into court.  Now, I spoke with Jo Ellan Dimitrius, the jury consultant for the defense, about how difficult it is to try to sniff out a liar during the short time that potential jurors appear in court. 

(BEGIN VIDEO CLIP)

JO ELLAN DIMITRIUS, JURY CONSULTANT:  They‘re excluding certain information that is obviously going to be important for one side or the other.  So my job is really to analyze the person and to try to ascertain, is that half-hour that we‘re seeing them, is that a good glimpse of what the rest of their life is like, or are they putting on a show for whatever reason? 

(END VIDEO CLIP)

LAMBERT:  Dan, as you mentioned, 29 people have qualified so far for the final jury pool.  We‘ve seen some interesting people in that pool.  Today a Russian immigrant talked about coming to this country from a country where a defendant is presumed to be guilty.  You have to prove yourself innocent.  He said he much preferred this system where the burden of proof is on the prosecution.  Also, the wife of a police officer who said she thinks Scott is innocent, but her husband thinks he‘s guilty.  And you mentioned there is a person who‘s qualified for the final jury pool who is facing a felony charge.  If he pleads out to a misdemeanor he can stay in the pool.  And otherwise, he‘s out. 

I‘m Edie Lambert reporting live from Redwood City.  Back to you. 

ABRAMS:  Edie Lambert, thanks a lot. 

Coming up, the FCC proposes fines almost a half million dollars for Howard Stern‘s radio show.  Question—is it too much or not enough?  We‘ll debate. 

(COMMERCIAL BREAK)

ABRAMS:  Radio network Clear Channel Communications dropped “The Howard Stern Show” from six of its stations last February, but they‘re not rid of him yet.  The company may be forced to pay for Stern‘s—quote—

“indecent comments” now.  The FCC today proposing almost a half million dollars in fines against Clear Channel for a program which aired last year, where Stern hosted a discussion detailing cast members‘ racy sexual practices and use of discreet personal hygiene products.  One listener even used a racial slur when calling into the program. 

Stern interrupted the entire show with sound effects simulating a person passing gas.  The fine comes after the FCC proposed more than a $27,000 fine against Stern‘s employer Infinity Broadcasting last month.  But this time the FCC is proposing 27,500 for 18 separate indecent comments said on the air.  If they vote in favor of the fines, it will be the first time the FCC has counted specific comments as separate violations, instead of fining the entire program.  The question—has the FCC just gone too far or should this be just the beginning? 

Let‘s asked our guests.  I‘m joined now by radio talk show host Bernie Ward, host of “The Bernie Ward Show”, which airs on KGO in San Francisco, and conservative commentator Jack Burkman. 

All right, Bernie, let me start with you.  What do you make of this? 

BERNIE WARD, RADIO TALK SHOW HOST:  Somebody is going to count how many farts go on and then they‘re going to fine them?  Is that what you‘re saying?

ABRAMS:  I‘m saying that they counted 18 incidents.  I don‘t know if they‘re counting farts.  But I think that they are counting indecent incidents. 

WARD:  Indecent.  Interesting.  Yes, well, Stern‘s been on the air, how long?  Twenty years?  And he‘s been how long for the Bush administration?  Three years?  And all of a sudden in an election year they‘re fining him for being indecent, about the same time, by the way, he came out and said that he didn‘t want to see George Bush re-elected.  Now, this is just getting ridiculous.  I thought Republicans believed in the free market.  Is there a freer market in the world than the media where people have an on-off switch, and if they don‘t like what you‘re doing they can simply turn it off? 

ABRAMS:  I‘m going to let...

(CROSSTALK)

ABRAMS:  I‘m going to let Jack respond. 

(CROSSTALK)

ABRAMS:  Jack, let me read you Howard Stern‘s statement and then I‘m going to let you respond to it.

Howard Stern says, “This is not a surprise.  This is a follow up to the McCarthy type witch hunt.  They are expressing and imposing their opinions and rights to tell us all who and what we may listen to and watch and how we should think about our lives.  So this is not a surprise.  It is pretty shocking that governmental interference into our rights and free speech takes place in the U.S.  It‘s hard to reconcile this with the land of the free and the home of the brave.”

Jack Burkman...

JACK BURKMAN, CONSERVATIVE COMMENTATOR:  Well, very sadly, Stern will probably come out ahead.  It‘s sad to say.  Yes, Stern has been on the air 20 years, your other guest is right, and look what‘s happened to the American culture during that timeframe.  The fines are not enough.  Stern should be off the air and any radio station that carries him should lose their license. 

There‘s a myth in this country, Dan, and you know it well.  It‘s that if we stop going—if we start going after things like porn, somehow it‘s a slippery slope.  The next thing we‘re going after political free speech, you know the old line one man‘s lyrics is another man‘s obscenity.  You can‘t take anything off the air.

There can‘t be any standards, we have to be wide open.  It‘s nonsense.  I would protect free speech to the death.  So would you.  So would your other guest.  Anybody in this business, we all stand for it.  We‘d all fight and die for it.  That‘s not what this is about.  And I fought for our friend, Bill Maher, as you know, for a long time.  I fought Disney to keep his show on the air.  This is not about that. 

It is about porno.  Stern is nothing about speech.  He‘s about raw porn.  But you know the FCC, everybody‘s coming out and making noise.  Powell will come out.  They stay on this issue as long as the television cameras are there.  They‘ll test the waters.  They‘ll throw a little bone to the right and then they‘ll go away.  Congress does the same thing.  I‘ve yet to see someone with the guts, either in the FCC or in the House and Senate leadership to step forward.  And I would challenge my conservative friends in Congress...

ABRAMS:  All right, I want to stick on this issue.  All right, Bernie Ward, what do you respond to Jack Burkman‘s initial comment? 

WARD:  Well, first of all, the idea that what Stern is doing is pornography, there‘s no—the funny thing about all this whole thing is if my colleague is correct, then let‘s go to court and find out.  The interesting thing about the FCC is they impose these fines and nobody ever goes to court.  And the reason you don‘t go to court is because if you ever take them to court, then your license is going to be threatened, in fact, maybe even pulled.  So, if this is really what this is, then let‘s go to court and let‘s a court rule that it‘s obscenity...

BURKMAN:  Bernie, you know...

WARD:  ... let‘s let a court rule that it‘s pornography...

(CROSSTALK)

WARD:  But I‘ll tell you how bad this is.  Do you want to know how bad this is? 

BURKMAN:  You‘ve seen the Stern show.  Of course it‘s pornography...

(CROSSTALK)

BURKMAN:  He‘s got naked people on there. 

ABRAMS:  Let Bernie finish. 

(CROSSTALK)

ABRAMS:  Bernie, go ahead.

WARD:  The ripple effect of this is my company just told me that I can‘t say the word boob on the air anymore and I‘m on after 10:00 at night.  I can‘t say that my colleague on here today is a boob.  I can‘t say that somebody had a boob job.  I can‘t even say that you‘re watching the boob tube, and that‘s because the corporate lawyers have decided that this ripple effect of Howard Stern is so terrible...

BURKMAN:  Dan...

WARD:  ... and so threatening...

BURKMAN:  ... listen to what Bernie is saying...

WARD:  ... you can‘t even say the word boob. 

ABRAMS:  Go ahead Jack.

BURKMAN:  Listen to what Bernie is saying.  This is absurd.  He says you don‘t know if there‘s pornography.  You don‘t know if there‘s nudity.  There‘s—the Stern show has turned into nothing but nudity.  It‘s like it‘s “Playboy” magazine...

WARD:  It‘s on the radio...

BURKMAN:  ... over and over again.  The other thing is—you know the other thing with this is, again, we have to get away from this slippery slope mentality.  Stern should have been off the air long ago and what we will see when you take this off the air, nothing will happen. 

(CROSSTALK)

BURKMAN:  There will be no march toward getting rid of free speech. 

WARD:  Yes it is, exactly what it is.  When my corporation is telling me that simple, innocuous terms can‘t be said anymore, and we, by the way, after September 11...

BURKMAN:  Well there are...

WARD:  ... there are a number of media people...

(CROSSTALK)

BURKMAN:  Bernie, look, I don‘t doubt that there could be overreactions. 

ABRAMS:  Ten seconds Jack.

BURKMAN:  I don‘t doubt that there can be overreactions.  But let‘s start...

WARD:  Well then let‘s not have any reaction.

BURKMAN:  ... with the core issue and let‘s get rid—because we have to get rid of porn.  If you want to help this culture...

WARD:  Excuse me...

BURKMAN:  ... if you want to help children...

WARD:  ... if you think it‘s porn, go to court...

BURKMAN:  ... you‘ve got to get the porn off the air. 

ABRAMS:  All right.

WARD:  Excuse me, if you think it‘s porn...

ABRAMS:  Got to wrap it up...

WARD:  ... go to court and let the courts rule it that way. 

(CROSSTALK)

WARD:  But instead...

ABRAMS:  ... Jack Burkman and Bernie Ward...

WARD:  ... I‘d like to be able to call a boob, a boob. 

ABRAMS:  Thanks for coming on. 

BURKMAN:  Thank you Dan.

ABRAMS:  Oh, my “Closing Argument”—why I already see the partisans on both sides ready to attack the 9/11 report.  Depending, of course, on what it says and who they blame.  I will take any of them to task.  It‘s my “Closing Argument”, coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why one viewer thinks the e-mails we read on the air are asinine.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why the 9/11 commission must be trusted, respected and its report eventually accepted no matter what it finds, no matter who they believe or ultimately blame.  Today as national security advisor Condoleezza Rice was questioned at length by the commission, the Democrats tended to ask the tougher questions, the same way the Republicans a bit tougher on her former counter terror chief Richard Clarke, who has accused the administration of ignoring the al Qaeda threat before 9/11. 

This is a venerable commission that includes two former senators, two former governors, two former congressmen, a former secretary of Navy, a former deputy attorney general, all of whom appeared to have a firm grasp on the issues at hand.  Five Democrats, five Republicans, chosen by Democrat and Republican leaders.  And yet even if they present a unanimous report, which I expect they will, I still fear some angry partisans will claim the commission was biased one way or the other whether the report appears to place more responsibility on the Clinton administration or the Bush administration. 

Well let me go on the record now and say I will accept and defend whatever the commission finds.  This commission will provide the document of record to help this country assess how 9/11 happened and how to prevent it from happening again.  They‘ll have conducted thousands of interviews, many of them classified, with all the people who had access to all the relevant information, including both presidents, Clinton and Bush, Vice Presidents Cheney and Gore.  So I make a commitment to you today.  I will take to task leaders of either party who make political attacks on the report once it is released, probably this summer.  I‘m tired of the finger pointing with no one accepting any responsibility. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night on the program we discussed how both the prosecution and defense in the Kobe Bryant case claimed to want to see this trial move quickly and yet, it‘s not moving quickly.  Guest Norm Early sided with the prosecution.  Karen Russell with the defense.

Lane from McLean, Virginia, does not like Karen Russell.  “I find Karen Russell‘s rudeness intolerable.  Please do your viewers a favor and find a replacement who will allow us the opportunity to hear the opinions of your other guests.  Thanks.”

But Nancy Hudnall from Okemah, Oklahoma thinks I‘m the problem.  “When you asked Karen any question she would start to give her opinion and you would instantly butt in on her, either continue to speak over her talking or totally cause her to have to—quote—“shut up.”

Also last night, Rush Limbaugh investigation, his attorney telling a Florida appeals court that the authorities had no right to take Limbaugh‘s medical records last year without providing him with a hearing first.  The defense saying it effectively violates his right to privacy. 

Jim M. from Copley, Ohio writes, “I just did a search in the U.S.  Constitution.  Nowhere is mentioned any—quote—“right to privacy”.  I hear this often on many news programs.”

Jim, there are many rights that have been recognized from the Constitution that you will not find by searching the words in the Constitution.  But here the—quote—“right to privacy” is derived from a Florida statute.  The legislature concerned about the privacy of medical records, passed a law that lays out what the authorities are supposed to do when seizing records.  The defense says it applies here.  We‘ll see. 

And finally, an angry e-mail from our regular viewer, a New Yorker, Shani S., who often complains we do not use her e-mails enough.  “Dan, I‘m really disappointed in you.  Out of all the e-mails I‘m sure you receive you pick the most asinine to read.”

Shani then went on to make a point about a story but since I only like the asinine thoughts, her thoughts were just a little bit too wise and too thoughtful for me to air.  Thanks Shani.

Your e-mails, abramsreport@msnbc.com.  We go through them at the end of the show.  Please include your name and where you‘re writing from.

Coming up next, “HARDBALL” with Chris Matthews.  Chris gets Capitol Hill‘s reaction to Condoleezza Rice‘s testimony with Senators Bob Graham and Richard Shelby.

Thanks for watching and I‘ll see you tomorrow.

END   

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