IE 11 is not supported. For an optimal experience visit our site on another browser.

'The Last Word with Lawrence O'Donnell' for Wednesday, July 16th, 2014

Read the transcript to the Wednesday show

July 16, 2014

Guest: Julian Epstein, Marc Ginsberg, Daniel Webb

ARI MELBER, GUEST HOST: Now, in this country, you can sue anybody for
anything. It doesn`t mean you will win -- and somebody might want to tell
John Boehner that.


CHRIS MATTHEWS, MSNBC HOST: The Rs are going to court.

UNIDENTIFIED MALE: The grand opening of the John Boehner lawsuit against
President Obama.

UNIDENTIFIED FEMALE: Genuine concerns about executive power.

REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: This isn`t about me suing
the president.

UNIDENTIFIED FEMALE: Or another way to placate the base.

MATTHEWS: This thing smells.

doing my job.

UNIDENTIFIED MALE: So sue me. No, don`t sue me.

REP. STEVE ISRAEL (D), NEW YORK: House Republicans will waste time and
taxpayer dollars.

STEPHEN COLBERT, COMEDIAN: You`ll never guess what Boehner is suing Obama
over, unless you guessed Obamacare.

UNIDENTIFIED FEMALE: They spent four years trying to kill it.

UNIDENTIFIED MALE: The president, in my opinion, has gone too far.

UNIDENTIFIED FEMALE: And now, they are suing the president to implement it

UNIDENTIFIED MALE: If I were President Obama, I would countersue the house
leadership for its gross incompetence.

UNIDENTIFIED FEMALE: It makes no sense.

OBAMA: Their big idea has been to sue me.

AL SHARPTON, MSNBC HOST: In another hearing.

REP. ELIJAH CUMMINGS (D), MARYLAND: I urge you to change course. This is
supposed to be a deliberative body.

SHARPTON: The GOP scandal-monger in chief finally got called out.

CUMMINGS: It is time for this committee to stop serving as a center stage
for political theater.

ISRAEL: People are not interested in lawsuits.

MATTHEWS: They`re not going to win with this suit, they just want to smear


MELBER: Good evening. I am Ari Melber. Lawrence has the night off.

The House of Representatives has just 10 days left before its August
recess, not much time to act on the emergency funding request for the
border crisis or to legislate before the fall campaign season. Yet,
Republicans spent today wasting their time in a very public way, holding a
hearing on their unusual lawsuit against the president.

Speaker Boehner wants to sue the president for something Speaker Boehner`s
actually voted for, delays in implementing Obamacare. By leading
Republicans to focus on a frivolous, backward-looking lawsuit instead of
crafting legislation or holding votes, Boehner`s actually feeding into a
point the president has pressed recently. That America has two political
branches of government, but only one of them doing its job.


OBAMA: There`s a scene in the movie where Mark Wahlberg -- yes, they`re on
a stakeout and somehow, the guy loses the guy that they`re tracking, and
Wahlberg`s all upset, and you know, yelling at the guy. And the guy looks
up and says, well, who are you? And Wahlberg says, I`m the guy doing my
job, you must be the other guy.

Sometimes I feel like saying to these guys, I`m the guy doing my job, you
must be the other guy.


MELBER: And Congress was certainly the other guy when it came to
Obamacare`s employer mandate. It took extra time to implement.

So, the White House followed a long and bipartisan precedent of shifting
deadlines for that implementation. Now, it would have been nice if
Congress weighed in, but they failed to work with the Senate and get a bill
on the issue to the president. They were too busy with all those repeal
votes and hypocrisy that Louis Slaughter slammed at today`s hearing on the


REP. LOUISE SLAUGHTER (D), NEW YORK: They spent four years trying to kill
it, to repeal it, to derail it. And now, they are suing the president to
implement it faster. It makes no sense.


MELBER: It`s true. It doesn`t make sense. It`s almost as if this entire
effort is a political trick for Republicans to look tough and take the
president to court, regardless of the reason why. But don`t worry,
Republicans assured everyone today, this was not political.


REP. PETE SESSIONS (R), TEXAS: This is not a political issue. This is not
an issue that should pit Republicans against Democrats. This is an issue
where we must hear testimony from constitutional experts.

SLAUGHTER: Despite the fact that chairman has stated otherwise, we think
this is a purely political exercise that we have before us. The lawsuit is
preposterous. It is a political exercise and if history is our guide, we
will have little chance of surviving in the courts.


MELBER: That is also a fair prediction. Many legal experts have said this
lawsuit is a loser. Some think it`s so farfetched it may get literally
thrown out of court. That basically a judge would tell John Boehner that
he doesn`t even have standing to take the president to court in this way,
never mind actually winning.

Now, in politics, a lot of fights are endless, with partisans sipping their
own Kool-Aid until late into the night, and then getting up to do it all
over again the next day. But this one might be different. Boehner`s doing
something special here. He is appealing to a higher authority. And that
means he may lose, once and for all, in front of everyone, and it may
happen pretty quickly.

Joining me now is editor in chief, Ezra Klein, and former chief
minority counsel to the House Judiciary Committee, Julian Epstein.

Good evening, gentleman.


EZRA KLEIN, VOX.COM: Good evening.

MELBER: Ezra, the John Boehner lawsuit here in many ways looks like a
political move to keep House Republicans from clamoring for a bigger
battle, the battle of impeachment. Do you think it will work?

KLEIN: Well, I think it will work for that, actually. This is the
Machiavellian reading of John Boehner`s lawsuit, which is that John Boehner
knows that bad ideas in the Republican Party can become inevitable ideas
very quickly. You saw it happen with Ted Cruz and shutting down the
government in 2013, for instance.

He`s heard increasing calls among Republicans to impeach Obama. Sarah
Palin made a call very recently. There was a book by a guy name Andrew
McCarthy out, making the argument. There is an incredible amount of, not
just anger, but, I think, a kind of a terror, a hyped up terror among
conservatives about Obama`s perceived executive branch overreach.

And so, what Boehner did here is, in a funny way, smart. What he did is
say, okay, we can`t do impeachment, so I`m going to go over here and do
this lawsuit and it will take a long time.

And as such, it gives Republicans a way to go back to their constituents
and say, we are doing something completely unprecedented, it has not
happened before, to rein in Obama. But at the end of it, Boehner can lose,
in which case, the suit just got thrown out, or he can win, in which case
he scored this victory against Obama.

But either way, it stops Republicans from doing something he thinks would
be a genuine disaster, which is impeachment, which is, of course, House
Speaker Newt Gingrich ended up losing the 1998 midterm election and
ultimately his job.

MELBER: Yes, and that`s a fair assessment. There is another door that
this could walk through, which is that he does get dismissed on standing
fairly quickly. Then they would have to appeal that, which they could do,
but they`d be appealing something very technical, not a real Tea Party
cheeseburger there.

Julian, former deputy attorney general, Walter Dellinger, spoke about this
at the Rules Committee hearing today. And one thing that he made clear was
that typically, under both parties, we don`t have the courts settle these
kinds of debates. Take a listen.


suit by the Congress every time we disagree with how a president carried
out the law would be a radical liberalization of the role that the
judiciary has played, and it is a transformation that this committee and
the House should decline.


MELBER: Julian, is that right?

EPSTEIN: That`s absolutely right. And I think the likelihood is, I think
it`s almost 70 percent, 80 percent likely, that this cook case won`t even
make it into court, because of what is known as the standing issue. The
Article III requirement in the Constitution, that in order to bring a case,
you must show some kind of individualized harm. Speaker Boehner here has
not lost his health insurance. The House has not lost a dime.

There is a long list of cases where the Supreme Court has said that
Congress cannot get standing merely by asserting it doesn`t like the way
the president is enforcing a particular law.

So, it probably won`t make it into court. If it does make it into court, I
think it is highly unlikely that a court would find the delay that`s a
question here, the delay of the employer mandate, to be illegal. President
Bush, under the 19 -- under the Medicare Act in 2003 --


EPSTEIN: Part D, exactly, delayed many of the penalty provisions. There
was never any cry about that being illegal, unconstitutional. In the 1997
Budget Act, President Clinton delayed at least half of the Medicare
mandates there. Throughout the 2000s, President Bush delayed many of the
mandatory provisions in the Clean Air Act. Nobody asserted that Congress
should go in and challenge him on that.

So, these kind of administrative delays, to make sure a law is enforced in
a kind of meaningful, thoughtful way, for kind of a transition period,
they`re very, very common. It`s highly unlikely that the court would find
it illegal. And even if it did find some problem with it, some kind of
legal infirmity, there`s a third reason that this case is unlikely to go
anywhere, and it`s known as the political question. Congress has many
tools at its disposal to deal with these kind of disputes, it can hold
funding, it can keep things from the president that he wants.

So, these are kind of like three basic reasons that I guarantee, if you
find -- if you were to poll the attorneys that work on these kinds of
issues in town, 90 percent to 95 percent of them would tell you, this is a
case that is dead on arrival.

MELBER: Yes, and you saw that a little bit in the way that the Republicans
the today, Ezra, were seeking to bring in anything else they could.
Darrell Issa issued about 99 subpoenas so far, an IT guy who once helped
Lois Lerner on the IRS issue. Number 98 was actually for the director of
White House office of political strategy. The White House said there was
executive privilege there and wouldn`t bring him in.

Elijah Cummings spoke about that. Take a listen.


REP. DARRELL ISSA (R), CALIFORNIA: This committee is obligated to shed
light on --

CUMMINGS: I cannot and I will not support the abuse of this very powerful
authority when it serves no legitimate purpose, and where there is no

We do not simply call in one of the president`s top advisers at will.
There must be a valid reason, there must be a predicate.


MELBER: And, Ezra, there you see that back and forth, and you see, as you
were alluding to earlier, this anger going broader than the one-year
implementation delay, which has not exactly been a hot button issue
anymore, but rather this idea that he must have been done something bad.
If it wasn`t Benghazi, if it wasn`t IRS, it must be something, Ezra.

KLEIN: Well, I think that gets to it exactly. There is a deeply
unquenched sort of emotional need among sort of Republicans right now.
That they really believe, they strongly feel that Obama has gone way beyond
what is acceptable. And it should be said that, in most cases -- that it`s
actually hard to find that argument. Medicaid Part D got delayed, the
Budget Act got delayed, there`s a lot of predicate for this kind of thing.

But there is this great belief. And so, there`s an effort to exhaust every
avenue. There`s the effort to find the scandal, right, the IRS scandal,
the Benghazi scandal, and Issa has been unsuccessful in that. That`s why
they tried to do under Clinton and they have found things they can sink
their teeth into around Whitewater and Monica Lewinsky and other things,
but they have not found a scandal they can really use to extract serious
damage to the Obama presidency.

So, now, there`s the effort to do the lawsuit, which is attempting to sort
of create at least a confrontation among a sort of different branch of
government that in theory could make the Obama administration heel.

But at the base of it, at the core of it, there is a very fundamental way
of resolving this dispute, and that`s typically elections. If you think
the president of the United States has done a bad job, has gone too far,
making bad decisions, you win at the ballot box. If you don`t, you`re
done. But they did not win at the ballot box, but they cannot -- they`re
not willing to be done.

MELBER: No, they didn`t win at the ballot box, and that`s something that
clearly has not been reckoned with. They`re looking forward to what they
think is a midterm universal voters. I`ll be very excited about this, no
matter how political it looks. Time will tell.

Ezra Klein and Julian Epstein, thank you both for joining me tonight.

KLEIN: Thank you.

EPSTEIN: Thanks for having us.

KLEIN: And coming up, while the Republicans talk lawsuits, we`ll tell you
what the president actually did today, he was governing, believe it or not.

Today also marks a pretty extraordinary kind of anniversary in presidential
history. It involves Nixon, it involves the Oval Office, and it involves
an action that no one knew about at the time. On this day in history, it
was revealed that -- well, we`ll explain it.

And later, what made the president laugh and call for an official POTUS
fist bump in this picture? The other guy in that picture will join us to
tell us exactly what he said to the president.


MELBER: Last night, Lawrence showed you the trailer for Chris Christie,
the movie.


MELBER: What`s not to like there? Well, the trailer was taken down from
the governor`s YouTube channel without explanation last night. Today, we
have the explanation.

The Rock asked for it to be removed. The trailer featured a short clip of
actor, wrestler Dwayne "The Rock" Johnson, and it was apparently done
without the consent of The Rock. That`s a no-no.

So, the trailer was given the people`s elbow, which will finish any
opponent in combination with the rock bottom. These are wrestling terms.
The trailer is back online now with no sign of The Rock in it.

And coming up, the president dialed up pressure on Putin just this evening.



SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Every time the president goes on
national television and threatens Putin or anyone like Putin, everyone`s
eyes roll, including mine. We have a weak and indecisive president that
invites aggression. President Obama needs to do something.

REP. MIKE ROGERS (R), MICHIGAN: I think Putin is playing chess and I think
we`re playing marbles. And I don`t think it`s even close.

everybody is shocked by the weakness of Obama`s statement. You could not
have issued a more flaccid statement than what Obama did.

SEN. JOHN MCCAIN (R), ARIZONA: This is the ultimate result of a feckless
foreign policy, where nobody believes this America`s strength anymore.


MELBER: At the start of the crisis in Ukraine, Republicans slammed
President Obama for being weak in dealing with Putin and Russia. But
earlier this evening, in the White House briefing room, President Obama
came out and said it`s time to impose new and tougher sanctions on Russia
for its continued interference in the conflict in Ukraine.


OBAMA: I`ve repeatedly made it clear that Russia must halt the flow of
weapons and fighters across the board in Ukraine. That Russia must urge
separatists to release their hostages and support a ceasefire. That Russia
needs to pursue internationally mediated talks and agree to meaningful
monitors on the border.

So far, Russia has failed to take any of the steps that I mentioned. In
fact, Russia`s support for the separatists and violation of Ukraine`s
sovereignty has continued.

On top of the sanctions we`ve already imposed, we`re therefore designated
selected sectors of the Russian economy as eligible for sanctions. We`re
freezing the assets of several Russian defense companies, and we are
blocking new financing of some of Russia`s most important banks and energy

These sanctions are significant, but they are also targeted, designed to
have the maximum impact on Russia, while limited any spillover effects on
American companies or those of our allies.


MELBER: And we can tell you tonight that one Republican heard that
statement and changed his tune a bit.


SEN. BOB CORKER (R), TENNESSEE: I do wish we had acted more promptly, but
I have to say, I`m glad that we`re acting and I am pleased with the steps
that they`ve taken. They`re late, but, look, I want to give them an
"attaboy" for taking these steps.


MELBER: That is one attaboy. We will see if John McCain or Lindsey Graham
join him.

But generally, the pattern from too many Republicans has been to only talk
about Putin when they think he has a leg up on the U.S. president or when
they think they have better ideas on how to run our diplomacy. And that`s
the thing about Monday morning quarterbacking. It`s a lot easier than

Joining me now is former U.S. ambassador to Morocco, Marc Ginsberg, who
also served a as a White House adviser on Middle East policy and just
returns from a trip from the region, to Russia. And Steve Clemons,
Washington editor at large for "Atlantic Magazine".

Good evening, gentlemen.



MELBER: Ambassador, these sanctions, why are they going further than what
had been in place before and why now?

GINSBERG: Because, since the last round of sanctions, there had been a
continuing pattern of cheat and retreat by Putin. He has retreated, but
then in effect, escalated the amount of military assistance that his
military has basically been smuggling across the border.

Despite his commitments, Putin`s commitments the to de-escalate, there has
been a steady stream, based on U.S. intelligence, of more sophisticated
air-to-ground missiles, as well as other artillery pieces that have fallen
into the hands of Russian separatists. The administration, and I have not
been, shall we say, a consistent supporter of the administration`s foreign
policy on many aspects, but this is an example where the president deserves
credit for providing the leadership that Europe so far has not provided, in
helping to thwart what has essentially been Putin`s capacity to avoid the
spotlight when he thinks that the global spotlight has been turned on the
Middle East.

MELBER: Right, and the pressure is, he feels, potentially shifting away.

Steve, as the ambassador is saying, this is a message to Putin. That`s not
the case. And specifically trying to limit access to U.S. capital markets
for some of these companies that basically are hand-in-glove with the
Russian government. Will that work?

CLEMONS: Well, I think that the real danger here is that while Europe has
frozen and inhibited any new financing of new deals, Europe is not joining
us at this moment in the sanctions we`re imposing. So, no one likes to
call it, but these are unilateral sanctions. And they may feel good, but
they leave gaping holes in the defense, energy, and banking options that
Russia has in other places.

So I think there`s that aspect of them not working. I think the second
aspect of it is, to some degree, you know, the president has been signaling
very clearly, as well as Vice President Biden, in the readouts. Every day,
Biden talks to Poroshenko. Yesterday or two days ago, Obama talked to
Cameron, and we get these readouts.

And in these the readouts, they say the least they possibly can. In every
one of them, it`s just what Marc Ginsberg said. We`ve been watching heavy
weapons go across the border as well as men. And in the Cameron readout,
they said, Putin and Russia have not followed through on any single one of
the commitments that they`ve made.

So they`ve been signaling they were moving this way, and for Putin not to
yield means that Putin has a bigger plan in place. And I don`t think that
what we`ve initiated is going to easily knock him back on to a different

MELBER: And, Ambassador, how do you read the fact that we`re acting alone?
That means we have tried to get more European allies on board with the next
step and seen it`s not happening?

GINSBERG: It`s a shame, because in effect, the Europeans, particularly the
French and the British, let alone the Germans, have a significant financial
stake in not imposing sanctions with Russia. But at the same time, their
neighbors, Poland, the Baltic states, where I just was, as well as some of
the other states on the periphery, that are facing Putin, as well as
Poroshenko, the new president of Ukraine, realize that if Europe is
prepared to basically give Putin a pass in Ukraine, and in effect, result
in the partition of Ukraine into two countries, they`re going to wind up
paying a long-term price, for the fact that Putin was able the to get away
with this, because Putin is not going to be satisfied, just with following
up Eastern Ukraine.

There are other countries in Eastern Europe that he has targeted and wanted
to go after. And the most important thing I agree with Steve on, it`s not
the fact that the president has provided the leadership, it`s the fact that
Europeans have run for cover here, rather than, in effect, bite the
economic bullet that they need to bite to keep Putin at bay.

MELBER: And while we`re looking at this, the president in his remarks late
in the day, around 5:30 in the White House, also spoke, of course, about
the conflict in the Middle East, which Steve mentioned.

Let`s take a listen to the president on that as well.


OBAMA: I`ve said repeatedly, Israel has a right to defend itself from
rocket attacks that terrorize the Israeli people. There`s no country on
earth that can be expected to live under a daily barrage of rockets. But,
over the past two weeks, we`ve all been heartbroken by the violence,
especially the death and injury of so many innocent civilians in Gaza --
men, women, and children who are caught in the cross fire. That`s why
we`ve been working with our partners in the region to pursue a cease-fire,
to protect civilians on both sides.


MELBER: Ambassador, the president not selling it very hard, because
there`s not much that we know yet, but reports of some kind of temporary
cease-fire here.

GINSBERG: Well, the United Nations basically proposed a six-hour
humanitarian cease-fire to permit humanitarian aide to reach the civilians
that have been deeply affected in Gaza. Now, the Israelis have accepted
this cease-fire, but the Hamas organization has yet to agree to it, at
least based on the last knowledge that I had.

The problem is that the last -- the capacity to get humanitarian assistance
in, in a six-hour time frame, and convince Hamas to stop firing missiles,
and see if this cease-fire can remain in tact is really the $64,000
question. The Hamas organization rejected the Egyptian-sponsored cease-
fire proposal, which the Israelis accepted, which resulted in more
hostilities and humanitarian suffering over the last 48 hours.

MELBER: Ambassador Marc Ginsberg and Steve Clemons, thank you both for a
look at several important hot conflicts out there. Good evening,

GINSBERG: Good evening.

CLEMONS: Thank you, Ari.

MELBER: And coming up, it is the tape police never really wanted anyone to
see. A sting gone wrong, and when it was over, every suspect was dead,
along with the police informant. We`re going to show it to you. That`s


MELBER: In the spotlight tonight, a police sting gone wrong. We are about
to show you a special investigative report from our NBC Miami affiliate,
WTVJ, showing a police undercover operation that ultimately left four
people dead, including a police informant. It is something you really have
to see with your own eyes.

But as a warning, some of the video we`re about to show you is quite


REPORTER: June 2011, in a field in the Redland, three men already lie dead
when Miami-Dade police move in on a fourth, hiding unarmed around tree, and
unleash 52 rounds in what prosecutors call the most disturbing of all the
killings caught on tape.

UNIDENTIFIED MALE: Shots fired, shots fired.

REPORTER: To some, the botched sting operation that also led to the death
of an informant was justice.

Police union president, John Rivera.

JOHN RIVERA, POLICE UNION PRESIDENT: What I can tell you, is this. You
had savages, and that`s the best way I could describe those people. And
those savages were stopped. And the good guys went home. I`m OK with

FIBATONE: But prosecutors are not sure the killing you just saw, and two
others, were justifiable. To understand why, we begin four hours earlier.

UNIDENTIFIED MALE: You got to go in there, be brutal.

FIBATONE: You are watching dead men talking.

UNIDENTIFIED MALE: So what do I have to do to go home? I take them down

FIBATONE: On the left, 52-year-old ex-con, Roger Gonzalez Sr., a serial
home invader.

UNIDENTIFIED MALE: You know how to handle a .45?

FIBATONE: On the right, the man he`s tutoring on the finer points of home
invasion, 39-year-old Rosendo Betancourt, a felon turned informant. A
decision that`s about to get him killed.

UNIDENTIFIED MALE: I don`t know the other people. I`m trusting you. I`m
going by, with you.

FIBATONE: In fact, police say Betancourt was so concerned by the Gonzalez-
Cruz violence in previous invasions, he went to them and offered to set
them up. In less than four hours, both men and two others would be shot

From the air and on the ground, more than 100 officers wait for Gonzalez
and three accomplices to invade this county-owned house, where the
informant had assured them, drugs and money await.

UNIDENTIFIED MALE: I need the (bleep) money. I need what they got, and I
got to take it.

FIBATONE: And to get it, Gonzalez is prepared to use deadly force.

UNIDENTIFIED MALE: This is not to run. You hit the floor and you shoot

FIBATONE: As darkness descends on the 2 1/2-acre lot, Gonzalez and three
others emerge from the SUV.

UNIDENTIFIED MALE: I have what looks like four foot mobile dismount.

FIBATONE: But there`s a problem, Betancourt, the informant, was supposed
to drive the invaders to the trap and stay in the car. Gonzalez has other
ideas, a snag Betancourt relays to detectives.

UNIDENTIFIED MALE: You heard everything, right. The problem is, he wants
me to go with him.

FIBATONE: Betancourt balks.

UNIDENTIFIED MALE: I have three kids.

FIBATONE: A bit later, Betancourt makes what is likely his last call to
his wife.


FIBATONE: Then as officers listen in, Betancourt utters the code phrase
prosecutors say was supposed to signal a problem.

UNIDENTIFIED MALE: After this, I`m heading to Disney World.

FIBATONE: But instead of aborting the operation or moving in to rescue
their informant, Miami-Dade police let the men continue to their violent
deaths. Fast forward now to when the four approach the house, and there,
gather at the front corner. Watch what happens next. Gonzalez and one of
the invaders sense something is wrong and take off.

UNIDENTIFIED MALE: I`ve got two subjects running west, running west, into
the trees.

FIBATONE: Thirty seconds later, and we warn you again, you`re about to see
something quite violent, the third home invader darts in front of the
house, holding a gun, and is shot down by a sergeant. His gun later found
where he fell. That left only Betancourt, the informant, at the corner,
with 70 seconds to live.

UNIDENTIFIED MALE: I`ve got one guy with his hands up.

FIBATONE: He surrenders, getting on to the ground as instructed by
officer, but the only cop there to give a statement says he`s silent, not
uttering the Disney Word code phrase that would identify him to police.
Prosecutors say, that`s just not credible.

UNIDENTIFIED MALE: I just don`t believe that the CI never opened his

FIBATONE: You heard the officer shot him say he never said a word.

UNIDENTIFIED MALE: That`s what the statement says.

FIBATONE: And you don`t believe it?


FIBATONE: Still, prosecutors say it`s not evidence of a crime, nor is what
happened next. Instead of handcuffing him, Sergeant Manuel Malgore says he
told him to roll over on his back. That`s when he said the surrendering is
informant made a quick move to a gun in his waistband. Cops fired 23

In a statement to homicide investigators made under oath, two years after
the incident, Malgore said, my life was in danger. Prosecutors were barred
from attending.

What do the officers know about what they can say?

DON HORN, ATTORNEY: They know what the law is, and they know, as I said,
the magic words are, OK, the suspect did something and as a result of what
the suspect did, I was in fear for my life.

FIBATONE: While concluding they could not charge the officers, prosecutors
say the case haunts them.

UNIDENTIFIED MALE: There`s a whole series of things in this case that are
troubling to us.

FIBATONE: What about the fact a confidential informant that came forward
to try to help the community wound up dead.

UNIDENTIFIED MALE: That`s not troubling, that`s tragic. He was killed.

FIBATONE: And he should not have been.


FIBATONE: And it`s not a crime?

UNIDENTIFIED MALE: It`s not a crime.

FIBATONE: Back in Redland, the killing was not over. Antonio Andrew,
there lying arms extended as officers stood over him was shot to death.
One shooter later cited the magic words. He feared Andrew was reaching for
a gun in his waistband. That left one man standing.

UNIDENTIFIED MALE: We have one subject unaccounted for.

FIBATONE: The ringleader, Gonzalez, leaving behind his gun as he tries to
jump a fence, before ended up curling up under a tree. As you saw earlier,
the four armed officers surround the man and when they say he reached for
his waistband, unleash 52 rounds.

UNIDENTIFIED MALE: Shots fired! Shots fired!

FIBATONE: When all were dead, one of Gonzalez`s killer thumps another in
the chest and pumps his fist.

UNIDENTIFIED MALE: These guys have less than a second to make a decision,
whether they, themselves, live or die, whether savages get away. I praise
them, I thank them, and I think the community should thank them. They`re


ARI MELBER, MSNBC ANCHOR: Joining me now is Jim Cavanaugh, MSNBC law
enforcement analyst, and a former police officer and ATF special agent.
Good evening to you.


MELBER: Looking at what we`ve learned here in this rather explosive
report, in your view, when did this operation start going south?

CAVANAUGH: Well, it looks like there`s some problems with the planning.
You know, we`ve run a lot of these home invasion cases in ATF as well and a
lot of them in south Florida and with the Miami-Dade police. But the best
time to take them down is not at the APEX of when the robbery is going to
occur, because that`s when they`re in a heightened state, they have the ski
masks on, they`re armed. You want to take them down earlier in the
conspiracy, when they`re planning and getting ready and they`ve committed
some overt acts.

So really this is kind of a bad time to do it. But given that, even if you
do do it at that time, you have to take great pains to make sure that the
tactical officers who are going to, you know, do the takedown have met
personally with the informant, talked with him personally.

MELBER: Yes, Jim, I`ve got to ask you, why do you think they took this
approach with the informant?

CAVANAUGH: Well, it just seemed odd. They just had a code word. You
know, you have to have some fail-safes in there. you meet with them
personally, you maybe watch videos of them, if you can`t meet them
personally, you certainly have still pictures of him, and know exactly how
he`s going to be dressed and you have code words.

It`s hard to believe, Ari, that the informant didn`t say the code words
when he was confronted by the police, didn`t say, I`m working with
detective Johnson or whatever, when he was confronted.

MELBER: So you don`t think --

CAVANAUGH: It`s also hard to believe --

MELBER: So you don`t think the police statement there, those who have
chose to speak, you don`t think it`s credible when they said he did not
give the code word?

CAVANAUGH: I don`t think so, because why would the informant go for a gun?
I don`t see a reason for the informant to go for a gun. And then the
wristwatch he`s wearing, which was a transmitter or a recorder, has
completely disappeared.

So, all three of those events to me are somewhat unlikely, that he didn`t
speak, that he went for a gun, he clearly knows it`s the police, there`s a
helicopter back overhead, you can see in some of the videos. He`s working
with the police. He`s not going for a gun. He`s trying to surrender. So
that is very disturbing, that the informant is killed in the operation.

And it`s sad, because the Miami-Dade police and this unit is a very
experienced, talented, trained unit. So I think this is out of character
for their operational integrity.

MELBER: So in your experience, though, do you think they should have found
something here to prosecute? You mention that a transmitter watch went
missing, highly suspicious given what we know. Do you think they should
have found a way to go after obstruction of justice or something, if not a
manslaughter charge?

CAVANAUGH: Well, I think, Ari, you`re exactly right. I think the civil
rights division of the department of justice is probably going to take a
hard look at this under, you know, 18242, the civil rights color of law
violations. Because there`s three guys here that appear to be
surrendering. All three of those guys, the one shooter was a justified
killing, and the state`s attorney said so. But all three guys appear to be
surrendering. One guy doesn`t even have a gun, Gonzalez, who`s an awful
guy. I mean, he`s the cream of the crud. But he still deserves to only be
arrested with only that force that`s necessary, and not anymore.

So I think what it needs is more investigation, probably by the civil
rights division, to look at it closer, you know, dive a little deeper, you
know, get some testimony out, where is the watch? There`s got to be
pictures of the informant`s body at the scene. Is the watch on? Did it
make it to the coroner`s office? The medical examiner? Where did it go?
Was it a transmitter? Was there a tape in a police vehicle? Where`s the

So there is a lot of questions here. And you know, but all that being
said, tactical officers do the most dangerous work for us here in America,
some of the greatest officers we have. But the community deserves good
policing and careful, tolerant, and restrained policing, and it`s really,
really got to be looked at hard.

MELBER: Yes, certainly. And they`re out there risking their lives, so you
always want those kind of folks to feel supported, but also want them to be
as accountable as any other citizen, if there are liberties being taken,
violations, or in this case, a lot of questions swirling around these

Jim Cavanaugh, thanks for sharing your expertise with us tonight.

CAVANAUGH: Thanks, Ari.

MELBER: We also want to give you a special thank you to NBC 6 in Miami.
An investigative reporter, Tony Fibatone, for that report. And we`ll stay
on it with any updates for you as warranted.

Now coming up, on this date 41 years ago, a secret was revealed to the
nation. That`s next.



UNIDENTIFIED MALE: According to "The New York Times," he asked the
ambassador, let`s have a dinner party. We can discuss art, architecture,
and the enlightenment.



the enlightenment! The 17th and 18th century intellectual revolution that
believe that knowledge is worth acquiring, and that the scientific method
is superior to superstition and leech craft!

Bring us pasteurized milk and vaccines so we can all live past age 30!




UNIDENTIFIED FEMALE: This is very, very serious. Probably more serious
than Watergate.

SEN. JIM INHOFE (R), OKLAHOMA: And I would say this to my dying day. I
know people don`t realize it now, but that`s going to go down in history as
the greatest cover-up. And I`m talking about compared to the Pentagon
papers, Iran contra, Watergate, and the rest of them.

history, like Watergate, like teapot dome, and like many other historic
events, will be studied by future generations.


MELBER: Congressman Issa, you might want to study a little harder.

Today`s subject is Watergate. And next month will mark 40 years since
Richard Nixon resigned the presidency, the first and only U.S. president,
of course, to ever do so. And there will be tons of anniversary coverage.
But it was this day in history, July 16th, 41 years ago, that brought down
the Nixon presidency. It all started with a subpoena from a congressional


UNIDENTIFIED MALE: One senator has indicated that his testimony will be
explosive, another says that he will have a bombshell. That is the
gentleman whose hair is parted, that you`re now seeing in the center of
your screen, seated in the witness area. We believe his testimony will
have to do with White House procedures is and those procedures may well
have included the tape recording of various conversations that went on in
the oval office.


MELBER: Procedures, indeed. That witness was former Nixon White House
aide, Alexander Butterfield, who revealed this.


UNIDENTIFIED MALE: Mr. Butterfield, as far as you know, from your own
personal knowledge, from 1970 then, until the present time, all of the
president`s conversations in the office, as mentioned, and on the
telephone, as mentioned, were recorded? As far as you know?

UNIDENTIFIED MALE: That`s correct.


MELBER: You certainly recognize the questioner. It was Fred Thompson,
2008 Republican presidential candidate, and former "Law & Order" actor. He
was then chief counsel to the Republican minority in the Watergate

The former Nixon aide testified that the president had ordered the secret
service to covertly bug the White House oval office, the cabinet room, and
several other spaces and telephones, all used by the president. After the
testimony, TV cameras rushed the chief counsel, who explained why the
revelation of the existence of these Nixon tapes was so crucial.


UNIDENTIFIED MALE: Mr. Dean testified quite extensively, to particular
meetings, that he had with the president, which goes to the question of
knowledge by the president of the so-called cover-up.


MELBER: The tapes ultimately answered the famous, crucial Watergate
question. What did the president know and when did he know it?


UNIDENTIFIED MALE: Six days after the break-in, the president, personally
and knowingly, gave the go ahead to the cover-up plan.


MELBER: It did take more than a year and the United States Supreme Court
to get Nixon to hand over the tapes that would spell the end of his
presidency. In the decision, the court said the president was not above
the law.

Writing, quote, "we conclude that when the ground for asserting privilege
as to subpoenaed materials sought for use in a criminal trial, it cannot
prevail over the fundamental demands of due process of law, the generalized
assertion of privilege must yield to demonstrate a specific need for
evidence in a pending criminal trial."

Nixon was not the first president to record himself. Five other presidents
also did some secret recordings, but not to Nixon`s extent. The Senate
Watergate committee members were just stunned to learn that the president
created the very evidence that could undo him. They asked why President
Nixon would do that. Didn`t he ever hit pause or stop or whisper because
he knew he was being recorded at all times.


UNIDENTIFIED MALE: The president seems to be totally, really oblivious or
certainly uninhibited by this fact.


MELBER: Uninhibited. It may have seemed weird. But today we ask similar
questions of powerful people, saying things or getting caught on camera.
In Nixon`s case, he was simply so convinced of his own power, he really
conceived of those tapes only as ammunition for him. He didn`t consider
that he was making something that could be taken and used against him
politically or criminally or otherwise.

The Supreme Court did see it differently, forcing those tapes loose, which
confirmed for the nation, that there were those high crimes and dirty
tricks that Nixon was overseeing, all the while to get re-elected.

Today`s Republicans so quick to yell Watergate at any term seem to think
anything President Obama does could be a high crime. It`s as if they have
found the inverse of President Nixon`s belief that anything the president
does cannot be a crime.

Now, coming up, what happens when a president walks into a barbecue joint?
The guy behind the counter who got a now famous fist bump and a laugh from
the president. He joins us here next.





OBAMA: What`s your name?

UNIDENTIFIED MALE: I`m Daniel. What`s your name?

OBAMA: Daniel, my name`s Barack.


OBAMA: I heard the food`s pretty good.

UNIDENTIFIED MALE: It`s not too bad.

OBAMA: OK, let`s try it.


MELBER: If you had the opportunity to meet President Obama, what would you
say to him?

Well, one man in Texas got that opportunity last week and he knew exactly
what he wanted to say when President Obama walked into Franklin barbecue in
Austin as you just saw there last Thursday. He met stand-up comedian
Daniel Webb working behind the counter. And as the president was paying
for his food, Webb slapped his hand on the counter and said, quote, "equal
rights for gays."

After catching him a bit off guard, it was the exchange that followed that
led to this picture that`s gone around of President Obama and Daniel Webb
sharing a big laugh and a friendly fist bump.

Joining me now from Austin, Texas to discuss the encounter is stand-up
comedian, Daniel Webb. Good evening.

DANIEL WEBB, COMEDIAN: Good evening, thanks for having me.

MELBER: Absolutely. So I want to let you film the details, we set it up.
What`d you say to the president last week that got that big laugh?

WEBB: Well, I asked him for equal rights for gay people, and he looked at
me a little, and asked me if I was gay, and I said, only when I`m having


MELBER: And he seemed to like that. Now, what did you think of the
question? Because you may have caught him off guard, but it`s not such a
typical question to be asked, are you gay?

WEBB: It`s not a question I particularly like to be asked, because it`s
not really a yes/no answer. So I kind of have a stockpile of really jerky
responses to it. So I was happy to work my best.

MELBER: And were you nervous, because a lot of people would be nervous to
joke around with the president.

WEBB: I saw it as an opportunity. He seems like a friendly person. I
mean, if it had been like a Bush or something, I probably would have been a
little bit more intense, you know?

MELBER: Yes, you mention a Bush or another Texas governor, Rick Perry, who
recently --

WEBB: I would have taken Rick Perry to town if that old queen were to have
walked in. I would have let her have it.

MELBER: What would you have liked to see from someone like Rick Perry?
Because beyond the sort of policy conversation which goes a certain way and
we have all the fancy words people use, he recently kind of just got
himself in a lot of trouble people by saying, well, gay people are like

WEBB: Right, he called us diseased. He called it a disease. And then he
did back track on it. But I`ve been in Texas as long as he`s been
governor. He`s never been in pro-gay in any of his policies. And that man
wants to run for president and I want to expose him as the anti-people man
that he is. Because it`s unequal in Texas under him, under Texas GOP in
general. Under Greg Abbott, who wants to run for governor, you know. I
want Rick Perry to come clean and start accepting people and stop calling
gay people diseased, you know.

MELBER: And do you think, culturally, any of that is changing in Texas?

WEBB: Texas people are friendly, and that`s what I like about my state.
But the politics are moving in a backwards direction. The Texas GOP just
introduced their 2014 platform, which uses language for gay conversion
therapy. I mean, that`s crazy.

MELBER: And do you have any other sense from the White House of what they
thought of this? I mean, they seemed to have enjoyed it as a fun back and
forth, but one that has some meaning too, I think.

WEBB: Well, I meant what I said, and they definitely said they would share
their publicity photos with me, so we`ll see if my face is blurred out or
anything like that when they give it to us.

MELBER: And real quick -- I have that photo, and real quick, I know you
told us that your mother actually met another president, JFK, in Texas, in
1963. So you`ve got some kind of good luck here in your family.

WEBB: Very true. She met him in Ft. Worth, the morning he was
assassinated before he went to Dallas. So part of me wanted to tell Obama,
don`t go to Dallas today, but everything was OK. But it`s cool that my mom
got to meet a sitting president. I think it`s cool that I got to and make
a very positive statement at the same time.

MELBER: Well, certainly. And obviously, there is some real interest in
American government in politics that runs in your family, which makes you
like a lot of us, interested in politics and progress.

Daniel Webb, you get tonight`s "Last Word."

WEBB: Hey, I just want to say, in regards to the earlier program, I think
it`s ridiculous that Lindsey Graham is telling anybody to be tough.
Lindsey Graham should do a one-man show of still not know who he is.

MELBER: We are out of time, but we will post it on the net.

I`m Ari Melber, in for Lawrence O`Donnell. He will be back tomorrow. You
can always get in touch with me by emailing That is Comments, complaints, questions, all of it.


Copyright 2014 CQ-Roll Call, Inc. All materials herein are protected by
United States copyright law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without the prior written
permission of CQ-Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.>