'Countdown with Keith Olbermann' for Feb. 19

Guests: Jonathan Turley, Rachel Maddow

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

One hour until polls close in Wisconsin after long hours of controversy. But Clinton campaign's poised to try to poach Obama's elected delegates. Not us, say her advisors, may be them. Never us, say his advisors. Not really doable, say the delegates selection rules.

Obama by one nationally in today's newest polling. But if Clinton wins in Wisconsin, he's this momentum is thwarted. The war about for Ohio and Texas on March - when was it again?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Senator Clinton, it's been an honor. We know you have a busy schedule. You're crisscrossing the great state of Ohio. We wish you well on March 1st and we hope that you are - March 4th.

SEN. BARACK OBAMA, (D) PRESIDENTIAL CANDIDATE: We've got to campaign hard in Texas and Ohio. But after March 4th, I think the party is going to have to look and see if it's time for us to ahead and move forward for the nomination.

(END VIDEO CLIP)

OLBERMANN: Tonight: The first hindsight into Wisconsin's voters: The exit polls with Norah O'Donnell; the analysis of NBC News Washington bureau chief, Tim Russert.

Worst Persons: Karl Rove: Thank God, George Bush invaded Iraq. Glenn Beck says Nancy Pelosi will end up killing Americans. The Supreme Court says it will not review the warrantless wiretapping and abuse of FISA, but we will review the Clinton campaign and what the Obama group calls the "say or do anything to win" tactics.

(BEGIN VIDEO CLIP)

HOWARD WOLFSON, CLINTON CAMPAIGN COMMUNICATIONS DIRECTOR: We have not, are not, and will not pursue the pledged delegates of Barack Obama. And I think Senator Obama's campaign owes you all a clear answer to the question of whether or not they will pursue our pledged delegates.

(END VIDEO CLIP)

OLBERMANN: So, we won't be seeing the Democratic primary version of "There will be blood"?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (INAUDIBLE) it reaches a cruel -

(END VIDEO CLIP)

OLBERMANN: Delegate.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I drink your -

OLBERMANN: Delegate.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I drink it up.

(END VIDEO CLIP)

OLBERMANN: All that and more, now on Countdown.

Good evening, this is Tuesday, February 19th, 259 days until the 2008 presidential election. It's 57 minutes until the polls close in Wisconsin. The delegates elected to vote for one candidate could vote for another is legally true. That they might be then run out of the Democratic Party on the proverbially rail is also legally true.

Our fifth story on the Countdown: What on earth was that? As Wisconsin and Hawaii voted between the Clinton and Obama camps today about Clinton possibly poaching already elected delegates. War games? Mutually assured destruction theories, smoke screens and diversions? Maybe somebody has seen "There Will Be Blood" too often. Rule 12J of the 2008 delegate selection rules, the Democratic National Convention seems pretty straightforward. But it did not keep the prospect of the Clinton camp raiding elected Obama delegates from becoming topic "A" today. Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them. The day chronologically, in brief. First, an unnamed Clinton campaign official tells Politico.com that later, in a deadlock campaign, her people would have to start to try to convince elected Obama delegates to vote instead for her at the convention.

Then, the Obama camp protests in "holier than thou" terms, at the prospect of having delegates its poached. Then, the Clinton campaign swears the story is wrong and it would never consider doing anything and throws down an even more "holier than thou" gauntlet to the Obamans to make a similar guarantee. Then, the Obama camp responds with a guarantee and a further series of fulminations of the Clinton, quote, "Say or do anything to win", unquote, tactics.

On the road in Ohio, Senator Obama leaving our own Matt Lauer with the impression that a deadlocked campaign might not happen anyway. The Illinois Democrat floating the idea that after March 4th, it could will be time to talk about the nomination. But first, of course, there is Wisconsin to worry about.

(BEGIN VIDEO CLIP)

OBAMA: We feel good about the campaigning we've done there, but you never take it for granted. Remember New Hampshire.

MATT LAUER, NBC NEWS: Yes, when do you think you might be able to wrap this up?

OBAMA: I think it's premature to talk about wrapping it up but I know that - what's pretty apparent now is that we're building a big pledged delegate lead. But I think it will be hard for Senator Clinton to catch up on me. Now, we've got to campaign hard in Texas and Ohio, but after March 4th, I think the party is going to have to take a look and see if it's time for us to go ahead and move forward with the nomination.

(END VIDEO CLIP)

OLBERMANN: Polls in Wisconsin closing at the top of the hour and Norah O'Donnell joining us in a moment with our first look at the exit poll results. New national numbers tonight as well. Senator Clinton rebounding on the Gallup daily tracking poll average which now stands at a virtual dead heat: 45 percent to Senator Obama's 46. The Keith number in this one:

10 percent. The Illinois Democrat had been up by 7 points in yesterday's Gallup average: 49 to 42, Keith number then was 11. In the most recent polling data among Hispanics voters released by Gallup, the two candidates essentially tied: Obama - 50 percent, Clinton - 46 percent. Earlier this month, Senator Clinton is having enjoyed a 31-percent lead among this core constituency. Supporters of either candidate can easily imagine how changing support among Hispanic voters might impact the race in Texas, where early voting began today. The latest polling out of the Lone Star State giving Senator Clinton just a 5-point overall lead, 50 to 45, Keith number under six. During our affiliate, an interview with our Dallas affiliate, KXAS, Senator Clinton today downplaying the recent loss of support among Latino leaders in the Dallas area, welcoming a close contest, she says.

(BEGIN VIDEO CLIP)

SEN. HILLARY CLINTON, (D) PRESIDENTIAL CANDIDATE: I always believed that this would be a very contested election and people are obviously going to be, you know, putting forth their support and I'm proud to have all the support I have. But at the end of the day, the election is between two people, not our supporters, but the two of us. And I want voters to look at our record and look at what we're proposing for the future.

(END VIDEO CLIP)

OLBERMANN: As promised, Norah O'Donnell once again be tracking our exit polling throughout Wisconsin and the coverage there in tonight. Norah joins us now. Good evening, Norah.

NORAH O'DONNELL, MSNBC: And good evening to you, Keith. That's right. In Wisconsin, the key battleground tonight, Hillary Clinton and Barack Obama have been trading barbs about who can create jobs for the nation and for the state. And there's no question that in Wisconsin, Democratic voters are listening. In fact, Wisconsin Democrats are very concerned about the economy, 43 percent say, it is the number one issue facing the nation. The war on Iraq was next in terms of importance. Followed very closely, you see there, by health care. Our NBC News exit poll shows that Wisconsin Democrats feel the economy is in terrible shape. Ninety percent, look at that, say it's not doing well. Only 10 percent think it's good. And these voters are much pessimistic than Democratic primary voters were four years ago. See that number there. Another interesting note: Wisconsin's primary is an open primary. In fact, you can register on the same day. So, when you walk into the voting booth today, you'll actually have the candidates of both parties right there on your ballot.

So, Wisconsin is a very unique state. So, one of the key things we're going to be talking about tonight is how many independents voted, how many independents did vote. Well, more than one in four, 27 percent consider themselves independent in the Democratic primary. We're also seeing today a good number of first time voters: 17 percent say this is their first primary election but not the highest we've seen in the primaries. In fact, just last week in Virginia, more than a third of Democratic primary voters say, they were casting ballots for the first time. And then finally, Keith, one of the things is we talked about the economy, of course, Wisconsin is an industrial state. We'll be looking at Wisconsin tonight because it may give us some clues about how other industrial states like Ohio and Pennsylvania may trend. Certainly, white working class voters have been a pillar of straight for Hillary Clinton. We saw in the past exit polls, in the Potomac primaries. Barack Obama has been cutting into that lead in particular. One interesting note: We did ask voters today about international trade issues and seven in 10 in Wisconsin believe that international trade takes more jobs than four years ago. So, international trade is a big concern to those voters tonight. Keith?

OLBERMANN: And 27 percent independents. Obama took them in Virginia last Tuesday: 70 to 26. Norah O'Donnell, we'll check back with you later on. Thanks, Norah.

O'DONNELL: Sure. Thank you.

OLBERMANN: For more on the night ahead, let's turn now to Tim Russert. Of course, NBC News Washington bureau chief and moderator of MEET THE PRESS. Tim, good evening.

TIM RUSSERT, NBC WASHINGTON BUREAU CHIEF: Hi, Keith.

OLBERMANN: What will you be looking for tonight?

RUSSERT: Well, if Obama can make it 10 in a row, Keith, in a predominantly white Midwest state like Wisconsin, it will be very significant. We'll see if Virginia and Maryland were aberrations in terms of his ability to tap into white men and to voters who make less than $50,000. On the Clinton side, I want to see if she can tap into some of those independent voters you just spoke about. Or can she tap in to some of those younger voters that Obama has been appealing to. If Hillary Clinton can pull an upset tonight, it can be a game changer. She can go down to Ohio and to Texas and she say, you see, I broke the string, momentum is with me. If Obama however then can say I am able to bring this party together, I've been able to expand my coalition, and now, let's go to Texas and Ohio and that should end the battle for the nomination because no one catch me with elected delegates, it's going to be extremely significant.

OLBERMANN: What happens if she has another poor or just average night in terms of the exit polls on women voters in Wisconsin? Is that one of those bells ringing in the distance that could extraordinary trouble for the rest of her campaign?

RUSSERT: Yes, it's going to be hard to spin because her base, her coalition has to be just more than white women over the age of 50. She needs other elements of that base in order to be successful, not only in the primaries, but in the general. The other thing, Keith, is the Clinton campaign went after Senator Obama very hard with negative commercials about health care and social security. The last two days about the words from Governor Patrick of Massachusetts and so forth. I think we'll learn a lot tonight as to whether or not negative attacks work in a Democratic primary and whether that's applicable to Ohio and Texas.

OLBERMANN: Is there any number besides who wins and who loses that reflects that?

RUSSERT: We'll see in the exit polls. Because we ask those specific questions: Who was more negative? Those kinds of things - and Keith, there's always the electability question. No matter who you voted for, will you be satisfied if the other candidate is the nominee? And who do you think is the strongest candidate going into the general election? Two very important questions. I can't wait to see the answers.

OLBERMANN: And these will be the only things we have for the two weeks until the two big events at least from the Senator Clinton view point, the map she has created, calling Texas her firewall, the last polling we saw out of Texas was, suddenly, it's a statistical tie there. We've seen this unusual numbers nationally about Hispanics, at least unusual in terms of what the previous numbers in this campaign has suggested. It was a dominant area for her. Is there anything we can look for tonight from Wisconsin and the exit polls that projects into Texas and/or Ohio?

RUSSERT: How each of the candidates do with men, women and with those income under 50,000 voters. But Keith, the elected delegates, you heard Senator Obama talk to Matt Lauer about them, if Obama sweeps Wisconsin and Hawaii, and he gets an elected delegate a plus 150 delegates, that's going to be very significant over the next two weeks. It's going to freeze any superdelegate from endorsing Senator Clinton and it may bring some superdelegates to him. Over the last 10 days, he has gained 13 superdelegates, she's lost three. That's why this blackout period for the next two weeks without a win for Senator Clinton is very, very serious. It will be mum between victories on Super Tuesday and on March 4th. One of her closest, most passionate supporters said to me just minutes ago, we got to put some points on the board quickly. We need a win.

OLBERMANN: A news segue us into the discussion out of the Politico this morning that the Clinton campaign was supposed to be preparing something they have denied on the record. Basically, to poach pledged delegates, voted delegates, not superdelegates but delegates that Obama has won, putting aside the strategy in the back and forth that we saw today between the campaigns, the nanana (ph). I mean, as I was citing the DNC rule book earlier, would something like this even be in the realm of possibility?

RUSSERT: Well, it was obviously discussed with Roger Simon, who is a very good reporter. He would not have printed that unless someone had said it to him. But, the whole debate over poached delegates, superdelegates in Michigan and Florida becomes irrelevant if Obama keeps building his elected delegate lead. If that gets above 150, I think a lot of Democrats across the country are going to say, wait a minute, do we have a presumptive nominee? But, he has to win Hawaii, he has to win Wisconsin and he has to win Texas and/or Ohio or at least keep so close that no one gains any real delegates on March 4th.

OLBERMANN: Lastly, Tim, anything short of victory for Hillary Clinton tonight that leaves this race in the same position it was when everybody got up this morning? Is there something that holds this forth for here that is not a victory tonight?

RUSSERT: You know, she needs a win. Even if it was just within, you know, a half point or so, but she needs a win. She needs a game changer. She needs to say, a state like Wisconsin, ethnic, blue collar Democrats came back to the fold, I won white men and I won white women. I ran the board in Wisconsin. It's a state, Keith, by the way, Al Gore and John Kerry won Wisconsin in 2000 and 2004 by less than 1 percent. This is a critical state for the Democrats to win in November and that's why it's such an important primary state.

OLBERMANN: Our own Tim Russert, Washington bureau chief of NBC News and moderator of MEET THE PRESS. We'll talk to you again after the polls close in Oshkosh. Thanks, Tim.

RUSSERT: Thank you.

OLBERMANN: Apart from the importance of the outcome, Wisconsin has referendum. Did the Clinton campaign try out a more negative approach and if it worked, will we see more of it? And if it didn't work, will we see lots more of it?

And we can't find four Supreme Court justices willing to even hear a case about the president ordering wiretaps without warrants. You are watching Countdown on MSNBC.

(COMMERCIAL BREAK)

OBLERMANN: Wisconsin is not just Hillary Clinton's last chance until Texas and Ohio to dent the Obama momentum, but what might have been a litmus test for certain kind of campaigning. One in which her campaign has her siding with a Republican, accuses a rival of plagiarism but denies it when she does it. It had even (ph) matters and first it leaks and then, denies a plan to poach elected delegates. Howard Fineman on the description does not play well with others. Speaking of which, later in Worsts: The man who says on TV that Nancy Pelosi is going to end up killing Americans, versus the man who says people will be thanking God that George Bush invaded Iran. And he doesn't say which people. All ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: John McCain criticizes Barack Obama about public financing for the campaign. Hillary Clinton criticizes Barack Obama about public financing for the campaign. Hillary Clinton's people accuse Barack Obama of campaign speech's plagiarism. Hillary Clinton's people say anything she might have borrowed from other speaker, it doesn't matter because she's not running on her strength as a speaker. Hillary Clinton's people off the record say, they may have to try to poach Barack Obama's elected delegates. Hillary Clinton's people on the record say, they would never to poach Barack Obama's elected delegates.

Our fourth story on the Countdown: The Wisconsin primary which may be secondarily about how much negative campaigning Democrats will stomach. A week ago, the "Associated Press" reported: The Clinton campaign wanted to make Obama slip at a debate or go negative on him or encourage the media to attack him. One week later, there's no debate in between, it appears the Clinton campaign went with options two and three, at least in Wisconsin, where she hit Obama with this mailer as TPM Election Center reports, hitting his present votes as a legislature capping it with a president can vote present. Of course, presidents don't vote at all, but who are we to nit pick.

On a conference call with the media today, Clinton communication director, Howard Wolfson helpfully reinforced several campaign themes about Obama.

(BEGIN VIDEO CLIP)

WOLFSON: We hoped to engage Senator Obama in a debate in Wisconsin.

He did not dare. He does not like to debate in states where he is ahead.

We have not, are not and will not pursue the pledged delegates of Barack Obama and I think Senator Obama's campaign owes you all a clear answer to the question of whether or not they will, they will pursue our pledged delegates.

(END VIDEO CLIP)

OLBERMANN: Which they immediately gave. As we mentioned, the Obama camp incidentally ruled out delegate poaching and as for debating in states where he is ahead, for most of the campaign, he'd been behind Clinton everywhere until he campaigned there. Let's bring in Howard Fineman, MSNBC political analyst and senior Washington correspondent for "Newsweek" magazine. Howard, good evening.

HOWARD FINEMAN, NEWSWEEK MAGAZINE: Good evening, Keith.

OLBERMANN: Is this construction Wisconsin was sort of field research for negative campaigning, is that a valid assessment or is unfair criticism of the Clinton campaign?

FINEMAN: No, I think that's exactly what it was. I started my journalism career down in Kentucky and we used to be right near at Fort Knox. And that's where they fired all the artillery. It didn't hit anybody. It was supposed to hit anybody and it may not hit anybody in Wisconsin, but they were firing all the artillery they had up there.

OLBERMANN: If it does hit anybody if she wins tonight or comes in a very close second, do we see more of it? And if it doesn't hit anybody, do we see lots more of it?

FINEMAN: Well, I think you're going to see more of it regardless. Because Hillary is in the fight for her political life, at least as national figure and the Clinton family is too as they try to protect and enhance their reputations. They've lost sight of how to burnish it as they try to save it, I'm afraid, but that's what they're going to do. Don't forget, there is a debate coming up this week in Texas. There's going to be another one in Ohio. And it will be very interesting to see what Hillary does. I think in the case of both of those debates, she's going to come in with guns blazing. She's got no choice but to do so or she's going to lose it all.

OLBERMANN: The point of burnishing. If she goes or if she starts to go under tonight in Wisconsin, will this be the field in which the second guessing takes place? I mean, in retrospect it seems, after New Hampshire, she was offered really a fundamental choice of two directions to take the campaigning. A human being speaking from the heart, in a little bit of pain, showing a lot of, you know, this is not just a machine here, this is a person. And on the other hand, there was the tough politico who's trying to inflict the pain on the other candidate. Her people clearly did not pick the first one. Did they serve her or fail her by doing that?

FINEMAN: Well, I think there's increasing division and tension in that campaign as it happens in all campaigns under pressure. There are a lot of big time figures in the Hillary campaign, people like, Mark Penn and Mandy Grunwald and Harold Ickes and Howard Wolfson, all of strong character and opinion. And I think they're going to go to war with each other if she goes down in flames in Wisconsin. I think you're going to see that start to happen big time. I think somebody like Mandy Grunwald was probably in favor of the humanizing tears, to summarize it abruptly. And I think some of the others went, such as Mark Penn, went the other way. I think Harold Ickes is a hard liner on getting any delegate you can anywhere you can. And he was probably the source of that trial balloon that went over like a lead balloon today about pledged delegates.

OLBERMANN: And to some degree, the Pyrrhic quality here of any victory that might be achieved, it has been remarked in several places that the whole idea of whatever the negative campaigning is, it would certainly not go over well with any superdelegates if they're still involved in this process. If it really is that, or if it's, you know, Al Gore and the committee of old wise men. Are they going to be less favorable to Hillary Clinton because this last two weeks has been, you know, one series of barn fires after another?

FINEMAN: Well, actually, it's a two step process, Keith. What might happen is that independent voters who are so critical even in many Democratic primaries could will be turned off by this type of campaigning because as of species (ph), they are. And then, if they help Obama win primaries and caucuses, that in turn will convince the superdelegates to stick with or go to Obama.

OLBERMANN: And as we know, the independents are from the exit polling Norah O'Donnell brought us earlier on the hour, 27 percent apparently, the total coming out of Wisconsin tonight. So, that could be a huge, maybe decisive figure.

FINEMAN: Absolutely.

OLBERMANN: We'll see. Howard Fineman of "Newsweek" magazine who rejoins us after the polls close in Madison. OK, we'll see you then, Howard. Thank you.

FINEMAN: OK, thanks a lot.

OLBERMANN: And in fact, it is 20 to 35 minutes and 15 seconds until the polls close throughout Wisconsin. In our first characterizations: What this state tells us about trends within the demographic groups and who is gaining on whom in them? We're getting some more exit polling from Wisconsin.

And all right, I'm funning you. This is the scene under the sea in Antarctica, but we don't know what it is, but it seems to be moving.

But first the latest in the administration's 50 other scandals - Bushed.

Number three: Cooking the books-gate. The administration is trumpeting the fact that it's budgeted an increase in this country's donation to the global funds to fight AIDS, TB and malaria. Last year, Mr. Bush asked for a $300 million U.S. donation. This year, he's asked for $500 million. It sounds great. Except, last year, Congress insisted the donation was too small. It increased it to $841 million. So, we only donate, Mr. Bush's proposed $500 million, he'll actually be cutting by more than 40 percent.

Number two: Immigration-gate. Homeland Security is building this crack pot 700-mile border fence between the U.S and Mexico. Forgotten in the process, dozens of private homes of ordinary citizens will have to be destroyed to make room for the fence. Others will be altered. Some windows will look only on the fence, et cetera. But not conveniently of the lands own by Mr. R.L. Hunt of Grand Hino (ph), Texas. The fence will stop just this side of Mr. Hunt's property. What an amazing coincidence. Mr. Hunt is Ray Lee Hunt, Texas oil billionaire, top shelf donor of the Bush/Cheney campaign. Halliburton board member and the guy who gave Southern Methodist University $35 million to help the school build the George W. Bush presidential library. More instructively, Mr. Hunt on Mr. Bush's foreign intelligence advisor board which grants him security clearance and access to classified intel and this 700 mile long fence ends at his place. Which it tells you, just how the point his defense is from the counter terror point of view.

The number: Gonzo-gate. The attorney general's long gone. His legacy lingers on. Giving interview to the student paper of Washington University, quoting, "I take comfort in the fact that I've always told the truth, worked hard as my father did and stayed true to my values by doing my best and having stepped into the arena, I have served my country." I don't know about the truth, hard work or values, but the arena, that's not what you stepped in.

(COMMERCIAL BREAK)

OLBERMANN: Keeping with the political theme. On this day in 1930, the future film director John Frankheimer was born. His 1962 classic "The Manchurian Candidate" was based on a McCarthy-esque senator, combining with a former prisoner of war to try to bring down democracy. He followed that up with "Seven Days in May," the danger of an active army general becoming a political figure taken to its extreme. And his last film before his death, "Path to War" told the story of how Lyndon Johnson and this country became trapped in the quagmire of Vietnam. It premiered in May of 2002. John Frankenheimer, artist and apparently prophet.

Let's play Oddball.

We begin in a dark place where disgusting, spineless bottom feeders roam. No, not the world of politics. You're under the sea in the icy, cold waters off the coast of Antarctica where a mile below the surface, an Australian science expedition has found brand new fishies. Among the never before seen creatures, this sting ray hiding from our cameras and a new kind of octopus. This, the extremely rare giant sea spider. Extremely rare when they found it. It will be medium rare by later tonight.

And now to Abu Dhabi in the United Arab Emirates where a guy just paid $14 million for a license plate. And you think your DMV is a pain in the ass. Part of an auction benefiting traffic accident victims, the number one license plate was the star attraction sold to the wealthy real estate magnate Saeed Khouri who said of his purchase, quote, "I bought number one because I want to get the best and most expensive number in the world." Adding, plus, it's going to look really sweet on my '82 Corolla.

Right now there is no immunity for the telecoms who helped President Bush illegally spy on Americans. But as of tonight, there's also no chance the Supreme Court will take a case about President Bush illegally spying on Americans.

And the quote is simply, "Nancy Pelosi will end up killing Americans." The clown who said it on TV makes it into tonight's worst persons. This story and for the first time, "Countdown'S" top three best persons in the world.

Number three, best specialized theft, international division. Wong Chi-Sheng of Taipei and Taiwan. What do you say, he broke into a gas station restroom and stole the heat sensors used on the urinal, the things that make it flush automatically. Why on earth would he do that? Because he thought he could adapt them for use somehow in his Mercedes. Technicians said even if he had somehow done this, the sensors might have caused the engine to explode.

Number two best specialized theft, domestic division. An unidentified thief in Orlando, Florida. Police that overnight, he crawled into an air duct on the roof, lowered himself into a convenience store and promptly stole all the Newport brand cigarettes they had. Nothing else.

And here comes the response. Number one best exit strategy, an unnamed 42-year-old in Germany. His girlfriend lit up a cigarette in their apartment, would not put it out, so he sprayed it out. Sprayed it and sprayed her with a fire extinguisher. Police say it looks like the apartment snowed inside. They also claim that as they took him away, he said of the woman that if she refuses to quit smoking, he may just have to break up with her. I don't know bud, I think you just covered that.

(COMMERCIAL BREAK)

OLBERMANN: Today, the Supreme Court had a chance to make history, to take up the most brazen, bold faced manifestation of the Bush administration postulate, that the president is above the law.

In our third story tonight, the Supreme Court said, not interested. Specifically, the court refused to hear the case of ACLU V. NSA, the National Security Agency. The agency Mr. Bush had wiretapped Americans without court warrants, in violation of U.S. law, including the FISA act, specifically designed to curb government intrusions into Americans' privacy. The ACLU also asking in vain for the high court to issue a ruling definitely affirming and I'm not really dumbing this down by a lot. The president of the country is not allowed to break the law. The Supreme Court denies to do so. That means a lower court dismissal of this stands. The lower court ruling that the plaintiffs represented by the ACLU had no standing to sue because they cannot prove they were wiretapped because the government won't say who it has wiretapped because the courts won't make it say who it has wiretapped because the suit is being dismissed because no one has standing to sue because they can't prove they were wiretapped. And that my friend where Joseph Heller got the idea for his novel "Catch 22." I'm joined now by Jonathan Turley, professional of constitutional law at George Washington University. Thank you again for your time tonight, sir.

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

OLBERMANN: That is the gist of it, right? I mean you can't sue over being secretly wiretapped because you can't prove you were secretly wiretapped because it's a secret.

TURLEY: That is it in every ridiculous detail. And unfortunately, that is a standard that is not unique. Why courts continue to use it is a very good question because they have the ability, if they really wanted to, to force the government to make some minimal showing, even under seal that would allow plaintiffs to get a ruling on the merits. But this is one of the reasons why many people have asked Congress to do something other than talk about this problem. Because, as you note, the courts have created an impossible test. People cannot prevail in getting even a review of the law.

OLBERMANN: Should that point though - if the lower court wanted an individual to prove he or she had been wiretapped, why would evidence like the entire AT&T room in San Francisco - we know the number of the room. We know the guy who hooked it all up. Why is that not sufficient to at least move this lawsuit on?

TURLEY: Well that's part of the ridiculous element of all this, that we know that there's an NSA program. We know that it's illegal. There's been no showing - there is no showing possible that the president has the authority to order what he did. This is a crime defined under federal law. So there's no mystery to the program. There's not a particular debate as to its illegality.

The only issue is standing. The ability of someone to come in and say I can show I was individually harmed. They can't do that because the courts won't give them the information they need and Congress will do nothing to force out into the public the information needed to get this type of relief. And as you've noted, the Congress is going further in the opposite direction. They're trying to extinguish groups against telecom companies that have been successful.

OLBERMANN: Is there any kind of benign interpretation for this on the court's behalf, that the court wants to wait until Congress and the president finish that wrangling over FISA, over telecom immunity, and then address whatever legal questions remain?

TURLEY: Well, there could be something to that. The Supreme Court tends not to want to take cases that are in play in the political branch. Congress while it hasn't done anything, could do something. Moreover, there are criminal cases where the facts will be presented in a more compelling light. I was a council in one of the cases. But what the court may be waiting for, that is the left wing of the court, is the best possible case to review this matter. That would probably come up in a criminal case.

OLBERMANN: You mention the wings of the court. On the political end of it, seven justices appointed by Republicans, two Clinton appointees. Justice Ginsburg, Justice Breyer, both of them will be in their seventies when the next president takes office. Does the refusal even to say essentially the president has to obey the law, does it put the court composition front and center in terms of the November elections?

TURLEY: Boy, it sure does. If people want to know how important a president is, they need to look at what's been happening in the last two years. You have cases where this is flagrant violations of the law, crimes ordered by the president. Unlawful surveillance, torture of suspects. And you have citizens that are unable to get a review on the merits, to simply have a judge look and find that the law was violated.

That's what happens when you don't have a court system that is willing to challenge, to this degree, the president. And I want to say that there are many brave judges out there. This administration has lost more cases than its won. But when it comes to national security, too many judges defer too greatly to the legislative branch.

OLBERMANN: The George Washington University law professor, constitutional law professor Jonathan Turley. As always Jon, thanks for joining us.

TURLEY: Thank you, Keith.

OLBERMANN: All right, so there's this constitution thing, something about some Wisconsin primary. Wait until you hear how much money Jennifer Lopez got for the first pictures of her twins from "OK!" magazine.

And when you go crazier over telecom immunity than even the president does, it's time to get off the television. The rich crop of worst persons, ahead on Countdown.

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OLBERMANN: Turning to our nightly 70 seconds of celebrity and entertainment news. Keeping tabs and even in the lucrative baby picture market, where the first images of little Shiloh Nouvel Jolie Pitt purportedly went for $4 million and Britney Spears allegedly got $1.5 million for the first photos of Sean Preston. This is an astonishing figure.

"People" magazine reportedly forking $6 million smackaraoos for the first photos of the J-Lo twins. Ms. Lopez's first children with husband Marc Anthony are due next month and that $6 million only gets "People" the rights to publish the photos in the U.S. The rights to publish them internationally has already been purchased by "OK!" magazine.

And if the Spice Girls have offered nothing else of any value during their sudden reunion and blowout world tour, consider this. As their Spice bus was driving away from a Spice concert tour at the Spice palace of Auburn Hills outside Detroit this weekend, the driver noticed something awry. A car swerving in and out of traffic. Mr. Spice's driver thought it was a drunk driver, promptly called the police. Thanks to the tip, cops managed to pull over the car and found a carjacking and shoplifting suspect inside. The Spice Girls thus finally returning about one one-hundredth of one percent that they owe the world for the song "Wanna Be."

The countdown to Wisconsin. We'll be characterizing the critical Democratic and Republican results momentarily, Rachel Maddow and I, and from a different studio no less. That's ahead.

But first, time for Countdown's worst persons in the world. The bronze to Lane Jensen of Edmonton who made it in bests for this same event two months ago. He is the co-owner of a tattoo and body piercing shop at a local mall. Must be some mall. He already had a tat of a buxom cowgirl on his legs so naturally he thought, what better way to enhance it than to give it two tiny silicone breast implants? His body promptly rejected the implants and now two months later, he's still on antibiotics and the tattoo area is in doctors speak, still seeping.

Speaking of which, our runner up tonight Glenn Beck. Even the conservative "Washington Times" admitted the president's terror hysteria about the House's refusal to rubber snap telecom immunity was nuts - that the FISA law supplied all the counter terror tools anybody needed. Even the conservative CATO institute said we are in no additional danger because of it. Not Glenn, claiming President Bush, quote, "feels and I happen to agree with him, that the Congressional game playing by Nancy Pelosi will end up killing Americans." Line one for you, it's Nancy Pelosi. Line two is also for you, it's George Bush calling to say he never even said that. Line three for you a well, they want to know if you'll participate in this study of the effect of post-traumatic stress disorder on people in the media.

But our winner, Karl Rove. An interview before a speaking engagement in Vancouver, Canada noticed Karl was taking no chances. The interview took place out of the country. Quote, "I think that people will look back at the Iraq war and say of President Bush, thank god he had the courage to do what he did." Yes, unfortunately, those people will be al Qaeda. Karl Rove, today's worst person in the world.

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OLBERMANN: The words trend and momentum may be erased from the dictionary of politics this year. Ask the trendsetter with all the momentum not three months ago, Senator Clinton. But our number one story on the Countdown, as we move into the countdown of the polls closing in Wisconsin from our MSNBC headquarters in New York now, if there were trends coming out of the Chesapeake primary of last week, they were these. Senator Obama's support among white males had shot through the ceiling.

His support from Democrats making less than $50,000 a year had exploded.

Even his numbers among white women voters had grown.

So as we begin to interpret tonight, let's look at where the Democratic nominating process stands tonight. In pledged delegates, it's Obama's 1,116 to Clinton's 985 giving Obama the lead of 131 delegates, that according to NBC News tabulations. Unallocated delegates from previous contests are estimated to be breaking slightly in Obama's favor.

And the NBC News super delegate count is Obama 184, Clinton's 257 bringing as you see here in the complicated math formula, Obama's total edge down to 62 delegates and totals of 1,324 on the left, 1,262 on the right. But as not all delegates are created equal, neither are all voters. To expand on that, Rachel Maddow, Air America host, MSNBC political analyst. Rachel, good evening.

RACHEL MADDOW, AIR AMERICA: Hi, Keith.

OLBERMANN: What is the best headline that Senator Clinton possibly can get tonight other than "I won Wisconsin right"?

MADDOW: Well she doesn't need, I don't think need very much tonight in order for this to be an overall positive evening. I think there is some Clinton psychosis in the media so that she's either the presumptive nominee. She's a juggernaut, she's an unstoppable machine or she's dead meat - she's a snowflake in hell. She has no chance at all. Right now, she's in the snow flake in hell department. The media is completely writing off her chances. And that means that all she has to do is come very close to Barack Obama and she'll defy the political obituaries that have been prematurely written for her.

OLBERMANN: And the worst detail would be for her what, that she does not have a dominant lead among women in Wisconsin?

MADDOW: I think the women demographic are important, although the gender gap, Barack Obama has been closing it frankly. I'm not sure that the Clinton campaign can reasonably expect to totally dominate among women Democrats in Wisconsin tonight.

I think what may be more important is looking ahead to the next contest, to Pennsylvania and to Texas and Ohio of course. Our working class white voters, nine out of 10 Democrats voting in Wisconsin in 2004 were white. And looking at the economic spectrum, that's the group that she is really going to need to do very well in in order to carry on in these next big contests.

OLBERMANN: So is there a possible signal tonight in the exit polls or a margin in Wisconsin that would indicate that Ohio and Texas two weeks from now no longer is Clinton's firewall, but rather Obama's opportunity to put Clinton away?

MADDOW: Well not in the exit polls, but the overall result. If it's a blow out tonight in Wisconsin, I think that's going to be very hard to spin away for the Clinton campaign. They are going to have to get - start spinning increasingly, outlandish scenarios as to how she can win if she really does get blown out tonight in Wisconsin.

In terms of exit polls, I do think it's going to be those working class white voters that are going to tell the story about whether or not we can expect anything different in Texas, Ohio and in Pennsylvania than what will probably be a 10-0 Obama sweep heading into those contests.

OLBERMANN: We talked earlier in the hour about negative campaigning, talking about outlandish. Is there anything in the anterior numbers that could suggest the impact of that, or is that all going to be found in the final score?

MADDOW: Well I'm glad that you have been talking about that tonight because I think that's actually a really, really important factor here. If the Clinton campaign is not able to take Barack Obama down a few pegs with all the incredible negative stuff that they have thrown at him, particularly in the last couple of days before this voting today, her best hope for going at him in terms of negative campaigning is that she's got something even worse about him that she's holding back that she's going to launch in subsequent states. That's a prospect that doesn't bode well for the Democratic Party generally and I don't think it bodes well for what Democrats are expecting from their campaign. So look for her to hit him in terms of Democrats perception of his electability and of course his overall negative numbers.

OLBERMANN: And also we have asked, the field poll has asked some particular questions about negative campaigning and its impact in Wisconsin, so we'll see what comes out of there.

MADDOW: Indeed.

OLBERMANN: But is there any interior number for Obama that would mitigate a fairly large size victory for him in Wisconsin? Is there anything that takes that way? What does it have to be, more than five points? What can go wrong in a win for him?

MADDOW: Well, the proof is in the pudding, so it's got to be the overall margin. He's hoping for a large margin and I think a large counts as five points at this point. But again, I do think the bellwether tonight is going to be working class white voters. One thing that's been really interesting on kind of the issues desk is that Clinton and Obama have both been sounding very Edwards-esque in their economic populism, particularly on trade, talking to blue collar voters in Wisconsin. They are going to need to keep that up and maybe even intensify it heading into Ohio. So he'll be looking to see how he does with those blue collar whites.

OLBERMANN: And the Hispanic number nationally, the change in that, in 10 seconds. Startling to see it almost even out?

MADDOW: It is startling. I think that that may be a product of what we're seeing in terms of overall momentum. It will be good to see if that stands.

OLBERMANN: Rachel Maddow of Air America and of course MSNBC political analyst Stand by, we'll be talking to you again during our coverage of Wisconsin which begins in about 19 seconds. That's Countdown for this, the 1,756th day since the declaration of "mission accomplished" in Iraq. And now our coverage of the Wisconsin primaries begins. Chris Matthews joins me momentarily. We'll have the first characterizations of the Democratic and Republican races. And until then, there's this.

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