'Countdown with Keith Olbermann' for Feb. 13
video 'podcast'

Guests: E.J. Dionne, Jonathan Turley, Richard Justice

KEITH OLBERMANN, HOST (voice over): Which of these stories will you be talking about tomorrow?

The bleak options left inside the Clinton campaign: Force a poor debate performance. Go negative on him. Get the media to attack to him. Suggest Barack Obama never gives details.

Bear with me, he tells GM workers at Jamesville, Wisconsin. This is going to be a speech with a little more detail, not as many applause lines:

150 billion redirected from war and corporate tax breaks to create 5 million green collar jobs, 60 billion more infrastructure reinvestment. Plus: Some applause lines.

(BEGIN VIDEO CLIP)

SEN. BARACK OBAMA, (D) PRESIDENTIAL CANDIDATE: You know, in the years after her husband signed NAFTA, Senator Clinton would go around talking about how great it was and how many benefits it would bring. Now that she's running for president, she says, we need a timeout on trade.

(END VIDEO CLIP)

OLBERMANN: Senator Clinton wants a time out from February.

(BEGIN VIDEO CLIP)

SEN. HILLARY CLINTON, (D) PRESIDENTIAL CANDIDATE: I want to congratulate Senator Obama in his recent victories. And tell him to meet me in Texas. We're ready.

(END VIDEO CLIP)

OLBERMANN: Texas is March 4th, three primaries from now.

John McCain now says, he'd like to have Mike Huckabee withdraw but will not ask him to. After this speech of last night, he'd certainly like Obama to withdraw yesterday.

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN, (R) PRESIDENTIAL CANDIDATE: I promise you, I am fired up.

(END VIDEO CLIP)

OLBERMANN: Thanks for clarifying.

Thanks for terrorizing.

(BEGIN VIDEO CLIP)

PRES. GEORGE W. BUSH, UNITED STATES: Good morning, at this moment, somewhere in the world, the terrorists are planning new attacks on our country. Their goal is bring destruction to our shores that will make September the 11th paled by comparison.

(END VIDEO CLIP)

OLBERMANN: Whether that planning is real, imagine, practical, or farcical, Mr. Bush uses it again to force Congress into folding over immunity for the telecom companies.

And just because they were being called the Clemens hearings did not mean Roger Clemens was supposed to be running them.

(BEGIN VIDEO CLIP)

REP. HENRY WAXMAN, (D) CALIFORNIA: Evidently, Mr. Pettitte didn't believe what Mr. Clemens said in that 2005 conversation.

ROGER CLEMENS, MAJOR LEAGUE BASEBALL PLAYER: It doesn't he was not mistaken, sir.

(CROSSTALK)

WAXMAN: Excuse me, but this is not your time to argue with me.

(END VIDEO CLIP)

OLBERMANN: Never mind who was lying, the awful truth was told by a player who did not testify. Why these were actually the Andy Pettitte hearings.

All that and more, now on Countdown.

Good evening, this is Wednesday, February 13th, 265 days until the 2008 presidential election. There's no Democratic nominee, but there is a front-runner and it's not Hillary Clinton and the state of her campaign perhaps summed up by a brief maintaining of two mutually exclusive positions for a time today. The senator was simultaneously accusing Senator Obama in Wisconsin of refusing to debate her while she herself was threatening to pull out of a debate with Senator Obama in Ohio.

Our fifth story on the Countdown: The position on the Ohio debate has been changed, she's officially in but other changes loom. Two senior advisors to her campaign speaking anonymously telling reporter Ron Fournier of the "Associated Press" that quoting him, "The New York senator needs to quickly change the dynamic by forcing Obama into a poor debate performance, going negative or encouraging the media to attack Obama." Fournier describes that as grasping at straws. One charge that Senator Clinton and others have already been making about Senator Obama, that he has not offered enough policy specifics. The senator, the one from Illinois, seeking to take away some of that ammunition today by outlining a $200 billion economic plan at the GM plant in Jamesville in Wisconsin where polls open next Tuesday, six days from now. At the outset, Senator Obama telling autoworkers to bear with him, that he speech would be more detailed, a little bit longer and they might be used to hearing from it. In the meat of the address, Senator Obama putting his rival's stance on trade, front and center.

(BEGIN VIDEO CLIP)

OBAMA: We can't stop every job from going overseas, but I also won't stand here and accept in America, where we do nothing to help American workers who have lost jobs and opportunities because of these trade agreements. And that's a position of mine that doesn't change based on who I'm talking to or the election I'm running in. You know, in the years after her husband signed NAFTA, Senator Clinton would around talking about how great it was and how many benefits it would bring. And now that she's running for president, she says, we need a timeout on trade. No one knows when this timeout will end, maybe, after the election.

(END VIDEO CLIP)

OLBERMANN: From Texas today, Senator Clinton countering that by claiming that Senator Obama's economic plan does not do enough to solve the health care crisis and housing foreclosures. Texas: three primaries and three weeks from now. The more immediate contest as we mentioned:

Wisconsin. Senator Clinton covering the going negative part of the apparent new strategy - releasing her first TV ad in the Badger State.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Both Democratic candidates were invited to a televised debate here in Wisconsin. Hillary Clinton had said, yes, Barack Obama hasn't. Maybe he'd prefer to give speeches than have to answer questions like: Why Hillary Clinton has the only health care plan that covers every American and the only economic plan that freezes foreclosures. Wisconsin deserves to hear both candidates, debate the issues that matter and that's not debatable.

CLINTON: I'm Hillary Clinton and I approve this message.

(END VIDEO CLIP)

OLBERMANN: Time now to call in the message of our own Richard Wolffe, senior White House correspondent for "Newsweek" magazine, spending a rare night in Washington and good enough to share some of it with us. Good evening, Richard.

RICHARD WOLFFE, NEWSWEEK: Thank you, Keith, good to be with you.

OLBERMANN: Senator Clinton's new - "My opponent won't debate me in Wisconsin" ad, the conflict with her uncertainty about Ohio having been resolve but the that remains here, it's not as if the voters in Wisconsin do not have cable television or broadcast television and/or radio and does been denied access to the 20 previous debates that have been held among the Democrats this season, should this not really be called, the "I claim to have a better a health care ad than my opponent" ad?

WOLFFE: Well, it should actually be really called the first negative ad of this Democratic primary season. In spite of the "ping pongy -sing songy" music there, this was a classic format for a negative ad. And the confusing thing here is that it's processy. As you point out quite rightly, if anyone wants to see a debate, they could have easily done so already. So, taking Obama on on this issue of who agrees to what and when seems to me, off the point. And really, it gets to the bigger challenge for the Clinton campaign which is: What's the message. Are they going after him on the health care thing, are they going after him because he's supposedly weak for not wanting another debate? They have to decide with clarity what they've stand for now. I don't think this ad does it.

OLBERMANN: Now, there are children who were unborn at the time of the first debate who are already walking. In going after Senator Clinton on trade, has Senator Obama actually hit a substantive weak spot?

WOLFFE: Well, he is going after that Edwards' populist vote. At a time when the party has moved considerably further away from trade, then, the Clinton administration was. So, it is a weak spot. It gets to the heart of all the baggage, the history that the Clintons bring with them. But more importantly, it takes on Senator Clintons on her territory. At a time when she needs to be expanding her base, they are now on a back and forth about the economic issues, economic plans, and I suspect for a large numbers of voters in Wisconsin and beyond, they didn't even know that Senator Obama had a plan. So, anytime he's talking about trade, getting into this Edwards' territory, he's really going after one of the few core constituencies that's left for the Clinton campaign.

OLBERMANN: And talking about expanding those core constituencies, the focus by her on Texas and Ohio three weeks from now. This is somewhat reminiscent of Rudy Giuliani and wait until Florida. Wait until Florida. Will her position now hold for three weeks?

WOLFFE: No, they don't want, no. I am sure that they don't like the comparison with Rudy Giuliani. Look, I was in Wisconsin last night and this morning, I got to say, the local news broadcasts mentioned very high up the fact that Obama and even Michelle Obama were in Wisconsin yesterday and noted that Senator Clinton was in Texas. You don't sort of nurture the voters of the next primary contest by not being there as your rival is there. So, she's going there this weekend. She's going to campaign for a couple of days. But really, they needed to stop him now; they needed to be in Wisconsin now. And I suspect, they may look back and regret going to Texas last night.

OLBERMANN: Looking back - looking back to last night, the Potomac results, specifically the exit polls, what on earth do they do? How do they find an interior number to cling to if she lost women, men, white men and incomes less 50,000?

WOLFFE: You left out Latinos which Mark Penn spoke about today and older women. So, they really sliced this and diced it down to a very narrow subsection and Latino voters for sure are important in Texas. But there are African-American voters there too and there are also liberals and progressives and white men and older people who had been voting for Obama too. It's really hard to base a campaign on poll numbers, no matter how technical you get. And that's the challenge they have in Texas. It comes to a message and a candidate. That's what they've got to rediscover, not the poll numbers.

OLBERMANN: Richard Wolffe of MSNBC and "Newsweek". As always, sir, great thanks.

WOLFFE: Thank you, Keith.

OLBERMANN: All along, a key part of the Clinton strategy for gaining the nomination and yes, that is Clintons' plural because on this case, the former President Clinton has played a crucial part. It has been the cultivation of superdelegates. Superdelegates who seem to be now running into veritable clouds of Krypton. They are now widely expected to stand aside at the convention plus that same "Associated Press" account, "Party insiders and that (ph) fear the Clinton's more than they like them as the conclusion." A result, reporter, Ron Fournier writing quote, "Many party leaders and the so-called superdelegates won't hesitate to ditch the former New York senator for Barack Obama if her political persist." The Democratic strategist telling him, quote, "If Barack Obama continues to win the whole raison d'etre for her campaign falls apart and we'll see people running from her campaign like rats on as ship." On superdelegates and our own political director, Chuck Todd. Good evening, Chuck.

CHUCK TODD, NBC POLITICAL DIRECTOR: Hello there, Keith.

OLBERMANN: Has the conventional wisdom indeed changed about these superdelegates? I mean, we can go - they looked ready to be the colossus at roads here striding 75 feet tall, shooting bullets out their nose. They would be decisive, they would be the final vote. In fact, are they now being viewed, viewing themselves even, as unwilling to go any further than ratifying with the delegates too? I mean, if Obama has one more regular delegate than Clinton, will the superdelegates all vote for him or at least vote for him in the majority?

TODD: Well, I think you have to see what the landscape looks at the time. I mean, I had a few people remind me today, the whole purpose of the superdelegates wasn't to help decide a nomination now, but was to help fix a nomination later in case, you know, something bad went wrong, OK? In case somebody got nominated due to over exuberance and suddenly, they realize this person wasn't electable. So, the whole idea of the superdelegates is to view this in the best of the party. That's why they were created. And I think at this point, all of them are going to take a step back and said, what good is it to get on either bandwagon now frankly, and if there is a bandwagon to get on, they're more likely to jump on Obama's. Over the last week, Keith, we've been tracking this, Obama's got nine superdelegates in the last week since Super Tuesday, Clinton's gotten publicly, two. So, you can see, if there is - I wouldn't call that a bandwagon, that's only 11, that if some may (ph) popped up. But still, anybody coming out publicly seems to be leaning Obama but at this point, all of them I think are taking a step back and say, wait a mix, let's see how this plays out. Let's make sure, if they are going to ratify Obama, that Obama is as strong in June as he looks right now.

OLBERMANN: Your math has been so good the last two Tuesdays -

TODD: It's a knock on wood.

OLBERMANN: Yes, it's Wednesday, where does the pledge delegate count stand as of tonight by your estimation?

TODD: Well, we got a few different ways of looking at it. We've got

the official count which has Obama - the official NBC count has Obama up

about 110 delegates. I think it's 109. Our estimate has his lead closer

to 130 - a little over 130 delegates on the pledged front. And the reason

it takes long to allocate is we're waiting on voting returns to come in by

Congressional district before you can decide if a delegate split is 4-2 or

5-1. But he's got a substantial lead on the delegates to the point, Keith,

that if you throw in the superdelegates, which by the way, the Clinton

campaign believes there should be no difference in how a delegate is viewed

a delegate is a delegate is a delegate. So, fine. If you take the whole delegate lead, then, Obama has a lead of about 40 delegates.

OLBERMANN: And at this point, even if we're using either set of math there, what is it going to take for Senator Clinton in terms of percentages to retake the lead among the pledged delegates plus the superdelegates?

TODD: All right. Well, this goes, you know, it's almost like you work your way up a ladder. If she loses next week, both Wisconsin and Hawaii by say, 55-45 margins on average as far as the delegates are concern, then, she'd suddenly have to win 57 percent of all remaining delegates. But there's a bunch of states left that Obama's going to win, Mississippi is one of them, the Wyoming caucuses. There are about six or seven. So, if you take those and in fact that Obama even wins narrowly on those states, but nets new delegates, then, suddenly, Keith, she's got to win and in the states that she wins with over 60 percent of the votes. She's got to win over with over 60 percent in Texas, over 60 percent in Ohio, and do it consistently. Now, look, the fact is, is it possible? Sure, it's possible. But, and if she does it, you will see superdelegates follow along. Because that would be a heck of a winning streak and that would mean something fundamentally has changed in the race - that the dynamics have changed. But if the dynamics don't change in this race and it's even like this, she can't catch him.

OLBERMANN: Well, as we're seeing, one of the other things uplifting her campaign right now, again, in Texas, as it was last night, the interminable introduction is now taking place in San Antonio of Senator Clinton. She was standing out on stage last night for like nine minutes and it's happening again now. Chuck Todd, political director for NBC News, math man, great thanks as always, Chuck.

TODD: You got it.

OLBERMANN: It is been a century since in an inspirational speaker lost the presidential election to somebody - not that inspiring, could be a problem for John McCain. And the FISA vote which would be a problem for everybody. The president plays the terror card, again. You are watching Countdown on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN: Senator McCain says, he'd like Governor Huckabee to pull out, of course, he would never ask him to. Maybe he can get Senator Obama to make a speech about it. People can get excited when he talks. The Republican front-runner's twin problems: The other Republican who won't leave and a Democrat who's simple an orator.

Later on Worst: Senator McCain makes cameo, he will not talk about how soon we'll leave in Iraq and you're not allowed to ask a question.

All ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: Now, to use this line for a third time and have to restrain myself over tirade (ph). If given the chronological opportunity, never let Senator Obama speak before you do.

Our fourth story on the Countdown: John McCain ran into it last night to such a degree that after several minutes of his standard Red Skelton impression, he said, I promise you, I'm fired up and ready to go. And he chuckled in apparent acknowledgement that it was a self-deprecating humor. The pictures are more telling than usual, too. Senator Obama last night before a crowd of 17,000 in Madison, Wisconsin, hailing Senator McCain as an American hero but saying that McCain's priorities, quote, "Are bound to the failed policies of the past". While waiting in Virginia, literally, he delayed speaking until Obama had nearly wrapped up with Senator McCain, a retiring Virginia senator and a retiring congressman standing behind, left and right, respectively, 250 people in front of him. And with the other Democratic contender, Senator Clinton, also, easily besting the McCain crowds, the Arizona senator today, answered the question about the enthusiasm gap between the two parties saying, quote, "We do have a lot of work to do. We all agree with that challenge". And Senator McCain said it would be much easier if former Arkansas Mike Huckabee would withdraw from the Republican race today, but he respects Huckabee's right to stay in as long as he wants and would never ask him to withdraw.

Let's bring in "Washington Post" columnist, E.J. Dionne, the author of "Souled Out". E.J., good evening.

E.J. DIONNE, WASHINGTON POST: Good to see you.

OLBERMANN: All right. The memo obviously went out this morning. The blogs are full of variations on this. Senator Obama talks pretty, but he has no plans. Is that the tactic of choice against him as a response to this enthusiasm gap and is it much of a tactic?

DIONNE: Well, you know, I think whenever a candidate comes along who's a phenomenon, the candidate's opponents want to turn him into the Wizard of Oz like he can't really be that good, he can't really be what you think he is. You know, while liberals and Democrats use to say that Ronald Reagan must have been pulling tricks off on the public, that he learned as an actor, now, it doesn't work well. It didn't work very well against Ronald Reagan. I think the one thing that Obama can take from this attack is that he's great at inspiration. He probably needs to add a little bread and butter to his campaign because where he's been losing is among older voters but particularly among blue collar voters. I think those are the voters, who, unlike his upscale folks, depend upon a government doing some things right. So, I think he needs to add that to the inspiration in answer to this but I'm not sure the tactic, in the long run, works that well. The one being used against him.

OLBERMANN: Yes, and even if it does work, isn't there something self-destructive about those on the other side of it? I mean, the McCain whisper to encourage a country with only rhetoric, rather than sound and proven ideas, it's not a promise of hope, it's platitude. If you say that, does that necessarily to some degree make you the anti-hope candidate, the "Hey, you kids get off my lawn" candidate?

DIONNE: You know, it's the first time I heard the word platitude used as part of a vicious attack. You were expecting another word when he said platitude. I think running against hope is a very bad idea in American politics, that the Americans are instinctively optimistic. You know, we have nothing to fear but fear itself is one of the great lines in American politics. And Obama has great fun with this on the campaign trail. You know, he lowers his voice and says, they're accusing me of being a hope monger. Yes, I think they're trying to undermine his image. He does have to get more substantive. But boy, I wouldn't run against hope. And McCain tried to fight that a little bit, Keith. What preceded those lines is his definition of hope but what came out of it was more an anti-hope message.

OLBERMANN: Speaking of hope, from the city of the same name, Mike Huckabee is obviously not going to withdraw, even though mathematically now, he can't enough delegates to get the nomination by you know, even if he got all the rest of them, he still wouldn't win. But if he did withdraw tomorrow, would the Republican issues with unity go with him?

DIONNE: Well, first, I like Mike Huckabee's honesty. A little while ago, he said, well, I have nothing else to do, so, why not go out there and keep getting a lot of votes. You know, I think it would not solve John McCain's problems with the rest of conservatives, but it might do is prevent us from doing stories week after week about how conservative voters are not lining up behind John McCain. And we will look at the maps of Virginia that showed almost all of southwest Virginia voting for Mike Huckabee, holding back from McCain. McCain doesn't want those stories to run week after week. So, in that sense, Huckabee pulling out would help McCain.

OLBERMANN: That's close to our original point here - the big picture. Since, a century ago, in the last of three times he lost, William Jennings Brian, has the great speaker ever lost the presidency in the last century to the "grandpa good for you" guy?

DIONNE: You know, Bob Shrum, the well known Democratic manager and speech writer once argued, there are two streams of Democratic rhetoric. There are Gene McCarthy and Adlai Stevenson, boy, we got a lot of problems here that are complicated. I'm the guy who can understand complexity. And then, there's the there's not a problem we can't lick, the FDR method. Ronald Reagan stole optimism from the Democrat at its best; Bill Clinton stole it back. I would never run against hope and optimism if I were president because Americans almost never vote against it.

OLBERMANN: E.J. Dionne of the "Washington Post", great thanks as always, sir.

DIONNE: Good to be with you.

OLBERMANN: A deposition from his best friend saying that Roger Clemens admitted to using human growth hormone and Clemens tells Congress, I was talking to him about some story I saw on TV about old people using human growth hormones. Sure, I believe you.

And a Supreme Court justice not sure that torture is not unconstitutional. Ahead on Worst Persons.

But first: The headlines breaking in the administration's 50 scandals

Bushed. With tonight's special guest villain: Karl Rove.

Number three: $4.00 a gallon of milk-gate: On which Mr. Rove in his new role as a TV pundit says, the media has been beating the drum for years and years and years that the economy stinks. And after a while that begins to color peoples attitude. Yes, I can change the weather. Tim Russert decides whether or not the crops will grow.

Number two: Global warming denier-gate: Singer Sheryl Crow that her new album, "Detour" filled with political protest to songs was inspired by her visit last year to the White House correspondents' dinner and the rage she felt after her encounter with Karl Rove. She tried to talk to him about global warming and she says, he's response was: I don't work for you, I work for the American people. Oh, you worked for George Bush and now, you work for Rupert Murdoch. That is two American people, not the American people.

And number one: Media manipulation-gate. If you'll remember, Rove spoke at the Choate private school in Connecticut Monday and ban the media. Nevertheless, we are getting drips and drops on how the students reacted to him. One senior asked named Marla Spivak asked him to explain how giving gay people the right to marry would endanger other people. Rove replied that it should be resolve by a legislature or referendum, not a court. She pointed out that he didn't answer the question. This stunned Mr. Rowe who then asked her why we should throw out the established tradition of marriage. This did not stun Marla Spivak who pointed out that until 40 years ago, one of those traditions was a law in this country against interracial marriage. Rove then said something at the Declaration of Independence. Marla Spivak then gave him a slam dunk facial, pointing out that the Declaration refers to life, liberty and the pursuit of happiness. Rove then taunted and asked her, when you plan to run for political office. Our answer, not soon enough because if this was Bush's brain, we need Marla Spivak in Washington by Monday.

(COMMERCIAL BREAK)

OLBERMANN: Thirty years ago yesterday, the New York newspaper, "Newsday" began what was then only the nations second regular column about sports on television, all through a bio-writer named Stan Isaacs, a displaced Washingtonian who was the executive sports producer at CNN swears he had been sitting there in Atlanta in 1981 thinking, where am I going to get a funny sports caster? Well he opened the newspaper and there was Stan Isaacs' "Newsday" column about me when I was in radio. They hired me two months later. So as I always say to Stan, it's all his fault. On that note, lets play Odd Ball.

We begin in Dortmund, Germany with this outstanding feat of sportsmanship that is the annual deer calling contest. Dozens of men, and their horns, gather from miles around to imitate the mating call of the noble ruminant. Most of them sounding something like this.

And a mighty roar went up from the crowd, even if the judges remain somewhat unimpressed. Even the admiral there in the middle.

To Prince Edward Island in Canada and a 20 pound lobster. It would serve 20 people, except it was so big, it took hostages and forced fishermen to release it back into the sea.

The president does it again, invokes 9/11, forecasts worse, to get Congress to fold and give him and the telecom giants immunity for eavesdropping he swears was legal anyway.

And Roger Clemens and his accuser both swear they're telling the truth. Was the decisive voice one who did not speak, but who said Clemens told him he used human growth hormone.

These stories ahead, but first, time for Countdown's "Best Persons in the World." No. 3, best dumb criminal, an unidentified woman in Bremerton, Washington making a rather unusual deposit at an ATM there. Some cash and a bag of crystal meth. She thinks, she says, that she put it in bank deposit envelope on accident.

No. 2., best compassion Eric Idle and Mike Nichols and the rest of the creative team behind the musical "Spamalot." Changing a snarky reference in a song from Britney Spears to Posh Spice because, quoting Eric Idol, "we don't laugh at sad people. Britney Spears is being tortured to death and we don't want to be on that side."

And No. 1., best long term medical care, doctors for Faustino Olivera of Barbastro in Spain - 88-years-old and suffering, suddenly, from a huge bulge in the shoulder. Physicians found and removed a bullet that had been lodged there - lodged there since November 11th, 1938 when Mr. Olivera was shot during the Spanish Civil War while fighting on the national side of Generalissmo Francisco Franco, who is still dead.

(COMMERCIAL BREAK)

OLBERMANN: When even the original secretary of Homeland Security admitted he didn't know why colleagues inside the Bush administration often pressured his department to raise the terror threat level for what the experts thought were trivial developments, we unfortunately must acknowledge that we live not just in an age of terror, but also in an age in which terror is exploited by politicians who are sworn to protect us from terror. Our third story tonight, we have not had a terrorist incident in this country, of any note, since 2001, nor have we had any exploitation of terror since this morning.

The Senate, last night, voted not just to legalized eavesdropping, but also instead of pursuing the crime, it voted officially, formally, to cover it up by shutting down the only avenue left to discover what actually happened, the dozens of lawsuits against collaborating telecom companies.

Unlike the Senate, Democratic leaders in the House passed a version of the wiretapping law, FISA, last year that does not include telecom immunity. This morning, Mr. Bush said that if the House does not yield to the Senate version and give the telecoms immunity, we will all die.

All right, I'm paraphrasing there, but not by as much as you might think.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Good morning. At this moment, somewhere in the world, terrorists are planning new attacks on our country. Their goal is to bring destruction to our shores that will make September 11th pale by comparison.

There's no reason why Republicans and Democrats in the House cannot pass the Senate bill immediately. The House's failure to pass the bi-partisan Senate bill would jeopardize the security of our citizens.

(END VIDEO CLIP)

OLBERMANN: The current bill expires Saturday, after which the Bush administration would actually have to use warrants, just like law-abiding presidents, to conduct their wire-taps. This afternoon, the House leadership failed to pass a three week extension of the FISA act. Republicans referring - preferring, rather, to let the law expire, rather than expose telecoms to legal liability.

Evidently, they also think the president's statement this morning was an exploitation of terror threats.

He's here now - to Jonathan Turley, professor of constitutional law at George Washington University.

Much thanks for your time tonight, Jon.

JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON UNIVERSITY: Thanks, Keith.

OLBERMANN: Put the Senate vote in perspective for us in terms of protecting the Constitution, as opposed to covering up White House crimes.

TURLEY: Well, putting aside that this bill is trying to preserve accord with very questionable Constitutional foundation, it was designed, in part, to circumvent the fourth amendment. But the immunity component literally has no public interest value.

It is there to extinguish dozens of suits that are before federal courts. And it's an attempt before those courts can declare what the president did as illegal, and what these companies did as illegal, to shut them down.

And so, the Senate is actively working with the White House to cover up a crime. And you have this bizarre situation with the executive and legislative branch, joining together to shut down the judicial branch to keep judges from declaring an unlawful program.

OLBERMANN: So, if every plausible argument for immunity got a proposed amendment yesterday, the government would take the defendants roles in lawsuits, the FISA court would vet the lawsuits, et cetera. These are all rejected by the Republicans.

Is the point of immunity purely to stop these lawsuits, and thus to stop any information getting out? There's been some estimation in this that this is, in fact, spinning forward to protect whatever the White House has next intended, in terms of prying, on to the Internet in particular?

TURLEY: Well it's not just Republicans. In case you noticed, there's more than 31 Democrats in the Senate. But only 31 people voted against the immunity provision. The fix has been in for some time on the unlawful surveillance program and the torture program.

Many Democrats and Republicans were aware of the program and they are actively helping the White House to try to shut down any confrontation on the issue. And this is also helped by the fact that the telecoms are one of the five most powerful lobbying forces in Washington. And many of these members have close ties to those lobbyists.

OLBERMANN: All right, if this immunity passes, it looks like it may be unstoppable at this point. Question No. 1, could the next Congress revoke the immunity? And question No. 2, could a Democratic president, or some form of enlightened Republican, have his or her attorney general investigate not just the telecoms, but also the Bush officials who had ordered the wiretapping in the first place?

TURLEY: Well it's going to be harder to get this cat to walk backwards once you grant immunity. The question about the next president is a good one. But you'll note that in the vote on immunity, Hillary Clinton didn't even show up to vote. She was in the area campaigning. Her opponents, McCain and Obama showed up.

But it really, I think, is symbolic of this disconnect between - here you've got someone who is campaigning for the president of the United States, making pitches of civil libertarians, but even doesn't show up when she's in the neighborhood to vote against telecom immunity. And I'm not just dumping on her. The fact is that there's been a lot of - really duplicitous work being done, by both parties, to shield what has been a very fixed deal from the beginning on telecoms.

OLBERMANN: All right. But lets look at - lets point the finger at one of the parties. Senator Dodd has a filibuster threat, it still stands. But yesterday the Senate leader for the Democrats, Harry Reid, let a Democratic measure fail, even though it had 57 votes because he was honoring the effect of a GOP filibuster, a virtual filibuster without actually making them filibuster. Where's the Democratic party on this?

TURLEY: Yes, Keith, you're absolutely right. This is one case where

the Democrats cannot make any plausible claim that they couldn't block this

vote. They could have done it easily. Not only are they in the majority -

and the Republicans as a minority block votes all the time.

But Harry Reid made decisions that made it virtually impossible for civil libertarians to win. One of the things he did, is he favors the Senate Intel Committee, which after all knew about this program, concealed this program and he let them take the lead. That made it much more difficult for civil libertarians to prevail.

OLBERMANN: Prisons are bi-partisan. Jonathan Turley, at George Washington University, great. Thanks, Jon.

TURLEY: Thanks, Keith.

OLBERMANN: Fortunately, Congress found time today to spend five hours on Roger Clemens. The bizarre steroid hearings at which the key witness never appeared, and what he didn't say spoke volumes.

Not only are we not allowed to decide how long our troops will be in Iraq, but merely asking the question is not acceptable. Senator John McCain makes a strong run for worst persons honors, next on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: The Roger Clemens hearing and its real headliner, the pitcher who was not there but spoke volumes. That's next, but first time for our No. 2 story, Countdown's "Worst Persons in the World." The bronze to Congressman Tom Davis of Virginia at those baseball hearings today.

Speaking of Clemens, just yesterday, President Bush spoke to the reporters about nooses being drawn or left at the homes or work places of African-Americans. Mr. Bush said, "Lynching is not a word to be mentioned in jest. As a civil society, we should be able to agree that noose displays and lynching jokes are deeply offensive. They are wrong and they have no place in America today."

What does Congressman Davis say after Congressman Stephen Lynch grills Roger Clemens today? Davis calls the line of questioning, "a new definition of lynching." Thanks for paying attention.

Our runner up, Senator John McCain. "Anyone who worries about how long we are in Iraq," he now says, "does not understand the military and does not understand war." McCain says the real question is reducing American casualties. Your misinterpretations, Senator, your real question has been rejected by the voters, rejected in every poll for a year and a half now. In point of fact, anyone who doesn't worry about how long we are in Iraq, does not understand the United States of America.

But our winner, Supreme Court justice, Antonin Scalia. In an interview with a BBC legal program, he defended cruel and unusual punishment of terrorism suspects. He said under specific interrogation scenarios, the Constitution might justify authorizing an agent to, "stick something under the fingernails, smack them in the face. Where is this group that we know is plotting this action painful against the United States? Where are they, what are they currently planning?"

Justice Scalia misses the two critical flaws that need to be addressed, even before the Constitutional or ethical questions about which he seems a little delusional. First, what makes you think sticking something under their fingernails will get you a truthful answer? And second, who is this "We" who, "knows what's happening?" And why on earth, after the last six years, are we all supposed to just assume they are not making it up or they're not wrong about it.

Supreme Court justice Antonin Scalia, today's "Worst Person in the World."

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OLBERMANN: Three witnesses, 21 Congressmen and two attorneys were heard at the House Oversight Committee hearing on baseball steroids today. Not one of them served themselves well. None seemed consistently trustworthy. And in our No. 1 story on the Countdown, none was as important to the truth as a ballplayer who's only testimony came in the form of a written affidavit.

The key figures who were present, Roger Clemens, seven-time Cy Young award winner, Brian McNamee, his ex-trainer, who claims he injected Clemens with steroids.

(BEGIN VIDEO CLIP)

BRIAN MCNAMEE, ROGER CLEMENS' FORMER TRAINER: When I told Senator Mitchell that I injected Roger Clemens with performance enhancing drugs, I told the truth. I told the truth about steroids and human growth hormone. I injected those drugs into the body of Roger Clemens at his direction. Unfortunately, Roger has denied this and has lead a full court attack on my credibility.

ROGER CLEMENS, EX-NEW YORK YANKEE: I'm not saying Senator Mitchell's report is entirely wrong. I am saying Brian McNamee statements about me are wrong. Let me be clear, I have never taken steroids or HGH.

(END VIDEO CLIP)

OLBERMANN: But the day belonged, in absentia, to Clemens' best friend, his teammate for nine years in New York and Houston, Andy Pettitte. He was originally supposed to testify to the committee today. He was excused and instead gave an affidavit in which he recalled Clemens admitting to him in 1999 or 2000 that Clemens had indeed used human growth hormone.

(BEGIN VIDEO CLIP)

REP. ELIJAH CUMMINGS (D), MARYLAND: Mr. Clemens, do you think Mr. Pettitte was lying when he told the committee that you admitted using human growth hormones?

CLEMENS: Mr. Congressman, Andy Pettitte is my friend. He will be my

he was my friend before this, he will be my friend after this. And, again, I think Andy has misheard. If Andy Pettitte knew I that I had used HGH, or I had told Andy Pettitte that I had used HGH, before he would use the - HGH, what have you, he would have come to me and asked me about it. That's how close our relationship was.

(END VIDEO CLIP)

OLBERMANN: Clemens says he thinks he was recounting to Pettitte a show he saw on TV with old people saying human growth hormone had made their lives better. But in his affidavit, Pettitte said he raised the question again: "In 2005... I had a conversation with Roger Clemens in Kissimmee, Florida. I asked him what he would say if asked by reporters if he ever used performance enhancing drugs. I reminded him that he had told me he had used HGH. Roger responded by telling me that I must have misunderstood him; he claimed that it was wife, Debbie, who used HGH."

Again, Mr. Cummings of Maryland.

(BEGIN VIDEO CLIP)

CUMMINGS: Did you have a conversation with him to this affect?

CLEMENS: I don't believe I had a conversation in 2005 with him in Kissimmee, Florida. We would have been with the Houston Astros at the time. But I don't remember that conversation what so ever.

(END VIDEO CLIP)

OLBERMANN: Trainer McNamee was grilled about his use of the term "doctor" after obtaining a Ph.D. from a correspondence school and at one point simply abused by Mr. Burton of Indiana, for which Chairman Waxman of California gave a hint of an apology. But the oddest moment came from Congresswoman, Eleanor Holmes Norton of Washington D.C.

(BEGIN VIDEO CLIP)

CLEMENS: I had no reason to believe that he wasn't a doctor and these

obviously the lies that I know now that he's told me.

REP. ELEANOR HOLMES NORTON, WASHINGTON, D.C.: And all the stuff he did to you - Mr. Clemens all I can say is I'm sure you're going to heaven.

(END VIDEO CLIP)

OLBERMANN: Once again we turn to the great baseball writer of the "Houston Chronicle," Richard Justice, for some perspective on all this.

Thanks again for you time tonight, sir.

RICHARD JUSTICE, HOUSTON CHRONICLE: You bet.

OLBERMANN: It seems to me, all the coverage of this, most of it anyway today missed the point - did Clemens lie, did McNamee lie? This is about Andy Pettittes' affidavit. His best friend, his pitching disciple, an almost painfully honest, perceptive, straightforward guy. And to believe Roger Clemens in this, ultimately, don't you also have to believe Andy Pettitte lied in his deposition, in his affidavit?

JUSTICE: Probably couldn't find a more honest player in baseball than Andy Pettitte. I think this is probably as close to a smoking gun as you can be. On the other hand, Roger's defense was pretty much - his defense throughout this is, I didn't do it. Look, I didn't do it. No matter what you say to me, I didn't do it.

And he's been pretty consistent about that. I'll say this, Keith, I know Andy Pettitte pretty well, and I guarantee you he was in a lot of pain today because it was painful for him to say these things about Roger Clemens. I think that's one of the underlying stories. I kept thinking about Andy through the whole day, about what he must be thinking about Roger.

OLBERMANN: Well, never mind today, but as the panoply of spring training opens up this week and next -

JUSTICE: Right.

OLBERMANN: What happens to Andy Pettitte this season?

JUSTICE: If you were to tell me he is going to walk away tomorrow, and not pitch again, I would believe it . He is really going to suffer with this. And - but, he does a good job of compartmentalizing. He's played in New York a long time, has never uttered one controversial word. So he's just going to have to push guys away. And that's not something that comes easy for him.

OLBERMANN: Yes, that context is imperative to understand in the meaning of what Pettitte said in the deposition. About Roger Clemens again. Is he - do you think he is well advised? His lawyers let him interrupt the chairman as the chairman was summing things up today.

His lawyers have let him talk to a potential witness, this ex-nanny and the whole side story about an abscess. And his lawyers let him throw his wife under the bus. To say he never used anything, but his wife did for youthfulness. This doesn't sound like good lawyering.

JUSTICE: I would guess that from the beginning, the lawyers have told Roger don't say anything. But I think what you saw today was his temper. One of the reasons he's been great is he refuses to give in.

And from the beginning, at times, it seemed like he thought he was dealing with an umpire. You yell at the umpire in the second inning, you get that pitch in the sixth inning. I think he's having trouble dealing with the fact this is another game, a game that he may not be able to win just by intimidation.

OLBERMANN: I thought those umpires, the Congressmen, were pretty uniformly wretched today.

JUSTICE: Yes, they were.

OLBERMANN: There was a wonderful threat of naivete in these hearings today, unlike 2005 and Mark McGuire. When they were talking about evidence that Clemens had gotten this shot of steroids while he was with Toronto a decade ago, and it was done badly and it may have caused an abscess in his backside, Congressman Davis actually seemed to think that if the Toronto team doctors had found an abscess, they would have immediately though, maybe steroids.

And they would have reported it up the chain of command. And the commissioner would have probably found out about it. This misses the essence of this thing, doesn't it? The steroid scandal is about everybody. About players and owners and everybody who were intent on not reporting it, on not suspecting it, on not reporting it up the chain of command, right?

JUSTICE: Yes, if you had read the Mitchell Report, as they clearly didn't, if people would understand that. And also there was a subculture within the game. Players that were doing it, didn't go announce it to other players. And the - when trainers and traveling secretaries came upon steroids, they just destroyed it. It was like, we don't want to know, get it out of here. I think the context of that gets lost on people who are not involved at the time.

OLBERMANN: And even the recent testing has been always given away by the awareness that the testing guy needed a parking pass for the game the next day, meaning the testing guy was going to be there.

Last point, Richard, other than the Pettitte affidavit, did we learn anything? Did we get closer to the truth in this today at all?

JUSTICE: Just a lot of body blows were exchanged. I think Roger looks really bad on the Pettitte affidavit. He looks really bad on the nanny part of it. And if you're going - if you're a prosecutor, and you're going to court with this case, Brian McNamee is probably not your best witness.

He's probably - it seems like he's telling the truth with Clemens. But there's so many other holes in his background, that he'd probably be easy to shoot down as a witness. So there's all that. Now, the hard part is for Roger is moving ahead and waiting and finding out what is the Justice Department going to do with this information today.

OLBERMANN: Yes. Richard Justice of the "Houston Chronicle." Always, adding something to our understanding of these things. Thank you, sir. Good night.

JUSTICE: Thank you.

OLBERMANN: That's Countdown. For this, the 1,750th day since the declaration of "Mission Accomplished" in Iraq.

I'm Keith Olbermann. Good night and good luck.

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