'Countdown with Keith Olbermann' for March 5, 2009
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Video via MSNBC: Oddball, Worst Persons
The toss: Going gray

Guest: Chris Hayes, Scott Horton, Margaret Carlson, Richard Wolffe, Chris Kofinis

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

The fight for the soul of the Republican Party - if any: The first call from a member of the Republican National Committee that Michael Steele should quit as chairman of the Republican National Committee. The man who said Republicans needed to apply their principles to urban-suburban hip-hop settings says now .

(BEGIN AUDIO CLIP)

MICHAEL STEELE, RNC CHAIRMAN: In trying to, you know, be cool and hip in a Democrat way, we failed.

(END AUDIO CLIP)

OLBERMANN: Michael Steele versus Michael Steele. Pick a hip and stick to it.

Also, he's still apologizing.

(BEGIN VIDEO CLIP)

STEELE: There was no attack on Rush. What I was saying that there are people out there who actually wants to demonize and use him as a bogeyman, but also say that what he is saying is ugly and divisive.

(END VIDEO CLIP)

OLBERMANN: The GOP talking point: The White House started this stuff with Boss Limbaugh to divert attention. The DNC talking point: We are putting up a billboard near Limbaugh's house. What should we tell him?

Karl Rove's testimony, not frog march, he says, closer to frog's legs.

"Some Democrats would love to have me barbecued."

The John Yoo memos: The stark assessment from international human rights attorney, Scott Horton. "We may not have realized it that time, but in the period from late 2001 to January 19th, 2009, this country was a dictatorship."

Our special guest: Scott Horton.

No, it's not your imagination. The president, 45 days into the new job, is getting grayer. But only his hairdresser knows for sure.

And Worsts: trying to teach Coultergeist about her own alma mater, trying to teach one of her readers how to spell.

All that and more - now on Countdown.

(BEGIN AUDIO CLIP)

UNIDENTIFIED MALE: Your gray facial hair has put you in a rocking chair.

(END AUDIO CLIP)

OLBERMANN (on camera): Good evening from New York.

Boss Limbaugh was to first to declare an open desire for President Obama's failure, making it safe it's not mandatory for other Republicans to follow suit. In our fifth story on the Countdown: Dr. Ada Fisher has become - 34 days after his election - the first member of the Republican National Committee to call for Michael Steele's resignation as that party's chairman. The question tonight: How long until others follow her?

Responding to an email from "The Hill," Dr. Fisher, one of three African-American members of the RNC, is telling that newspaper that Steele is, quote, "eroding confidence in the GOP." Quoting here again, "I don't want to hear anymore language trying to be cool about the bling in the stimulus package or appealing to D.L. Hughley and blacks in a way that isn't going to win us any votes and makes us, frankly, appear to many blacks as quite foolish."

Mr. Steele apparently attempting to heed Dr. Fisher's advice even before her email had been published, admitting on WBAL radio in Baltimore, that in trying to be, you know, cool and hip in a Democrat way, we failed. Democratic.

Yet, in the same interview, Mr. Steele then equated the party and his plans for fixing the party to alcoholism.

(BEGIN AUDIO CLIP)

STEELE: I'm putting the party on a 12-step program of recovery. And this is going to take some time; it's going to take some effort.

(END AUDIO CLIP)

OLBERMANN: More efforts still to claim last night that he never criticized Boss Limbaugh.

(BEGIN VIDEO CLIP)

STEELE: There was no attack on Rush. What I was saying that there are people out there who actually want to demonize and use him as a bogeyman, but also say that what he is saying is ugly and divisive.

(END VIDEO CLIP)

OLBERMANN: Not even close to being true. What Mr. Steele had actually said was this, quote, "Rush Limbaugh is an entertainer. Rush Limbaugh, his whole thing is entertainment. Yes, it's incendiary. Yes, it's ugly."

Michael Steele is calling Limbaugh's whole entertainment thing incendiary and ugly, not his critics, nor those who would demonize him as if Limbaugh was not fully self-demonizing. Nice try, though.

Meanwhile, other Republicans are now trying to claim that Steele's attacks on Limbaugh and Limbaugh's self-startling call for President Obama's failure are somehow part of a White House conspiracy. An email to supporters, John Cornyn of Texas, chair of the National Republican Senatorial Committee, is feigning outrage, asking the president and his staff to come clean. Quote, "His staff should apologize to the American people for supporting these tactics and diverting attention to the hard work that needs to be done to get America's economy back on track."

Dr. Freud, Senator, here is the outrage. By saying that President Obama has diverted attention to the hard work that needs to be done, you just have praised him. "From" would be the operative proposition -

Library of Congress, "The Elements of Style," Strunk and White. Look into it.

Meantime, Republican House Leader Boehner today is decrying the diversion without ever saying what the diversion is.

(BEGIN VIDEO CLIP)

REP. JOHN BOEHNER, (R) HOUSE MINORITY LEADER: Operatives at the White House have tried to divert attention away from our ailing economy and the Democrats' spending binge that's been going underway for the last six weeks.

(END VIDEO CLIP)

OLBERMANN: Alien economy? Ailing economy?

Not that the Democrats are not having fun at the Republicans expense. I mean, who isn't? The DNC now is running a contest, soliciting ideas on its Web site for the slogan it will put on a billboard near Boss Limbaugh's home in West Palm Beach, Florida. Ten words or less, please.

Time now to call in our own political analyst, Richard Wolffe.

Richard, good evening.

RICHARD WOLFFE, MSNBC POLITICAL ANALYST: Good evening, Keith.

OLBERMANN: Nobody in the White House called for President Obama's

failure. Limbaugh did. Nobody in the White House called for - called

Limbaugh's rhetoric ugly or incendiary or both. And yet, the American

people are supposed to believe all of this is just White House conspiracy

by White House operatives?

WOLFFE: Yes, you know, if only they were that good.

OLBERMANN: Yes.

WOLFFE: Look, There is no question that Rahm Emanuel tried to stir things up. But, if you're looking for an excuse for why Michael Steele is making a fool of himself, you don't have to look inside the White House. You don't have to look for clues to why Congress is being weak by looking at folks inside the White House.

They have met - conservative officials and Republican lawmakers have met what is now really the immovable object in conservative politics, and that's Rush Limbaugh.

(LAUGHTER)

WOLFFE: He has proved that he cannot be moved in any way, shape or form - other than himself moving up and down very quickly. And so, you know, they have - they've caught themselves in this problem. It was sustained by their own mistakes.

And they're looking now at a Republican National Committee chair who is fatally weakened, and this is just the start of the challenges to his authority. And for the sake of children everywhere, we have to stop showing that tape.

OLBERMANN: Yes, I know. Killer clowns from outer space is less disturbing for children.

Senator Cornyn's confusion, I mean, it's just a "to" or a "from," but it seems symbolic here. When in a last month has the White House not wanted specifically to divert attention to the economy and what it's trying to do to fix it? I mean, it's as if the Democrats wrote this statement for Cornyn, too.

WOLFFE: Yes. Look, the healthcare summit today, a serious subject. It could have been about the moral issues about healthcare. But, actually, they are only talking about it in economic terms really - the cost to the economy, it's all about the economy all the time. I just find it incredibly ironic that from the party that brought us Terri Schiavo, "war in the wrong country" - oh, "Christmas without Christ," I mean, the idea, everyone else is playing diversionary politics is a little bit rich.

OLBERMANN: But, as always, and we talk about this several times already, the key to diversionary politics or the exploitation of political silliness is knowing when is exactly the right moment to give it up, when is not too soon and when is not too late. How much more shelf life does this have whole thing have for the Democratic point of view?

WOLFFE: Well, I think it would be a real mistake for Democrats to try and push this any further. You don't need to actually pull the trigger when the other side is on a circular firing squad. So, in terms of the tactics, I think it's had its full impact. And Rush Limbaugh now has this unrivaled position in terms of what the public associates with conservatives and Republicans right now.

In that sense, the White House should get out while it's ahead if, of course, the White House is pulling all the strings.

OLBERMANN: Of course, the Republicans could also get out of this by themselves. Both participants in something like this can if they want to. But you have to have an alternate; you have to have something to replace those headlines with headlines of your own choice.

Does the GOP have a plan B to go to or is this what they are left talking about?

WOLFFE: Well, what they first will need to do is to kill some sacred cows here. I mean, that is what actually Michael Steele was there for, and that's why taking on Rush Limbaugh would have been an impressive statement of where the party now stands. I mean, you know, for President Clinton, he was just the soldier for President Obama; he has to confront Reverend Wright. This is their Reverend Wright.

And unless they deal with extreme voices within their own party, within their own movement, they're not going to reach those independent voters who put President Obama over the top. So, yes, they have to come up with an agenda. But they also need to deal with these cultural questions. Are they a party that anyone can vote for without holding their nose?

OLBERMANN: Yes. If it's Michael Steele doing all that, it will also be one of the great comebacks in political history, Richard Nixonian - that kind of level.

MSNBC political analyst, Richard Wolffe - great thanks, Richard.

WOLFFE: Thank you, Keith.

OLBERMANN: In addition to Michael Steele versus Boss Limbaugh, there is also Michael Steele versus Michael Steele. For more on that, let's turn to Democratic strategist, Chris Kofinis.

Chris, good to talk to you again, sir.

CHRIS KOFINIS, DEMOCRATIC STRATEGIST: Good evening, Keith.

OLBERMANN: Michael Steele was the guy - Richard just made this point

he was the guy who was supposed to come in, shake the Republican Party up, knock it up from its 26 percent approval rating. So, how's that working out for them?

KOFINIS: It's not working out very well, to say the least. You know, Michael Steele is starting to make Joaquin Phoenix sound sane.

(LAUGHTER)

KOFINIS: I mean, he's starting - what's happening is he's twisting in his own contradictions, and in doing so, he's making the Republican Party sound more bizarre, more out of touch every single day. And he's doing real serious damage.

And when you've only been on a job for a few weeks and you have members of your own party calling for you to step down, it's pretty indicative that you're not doing a good job.

OLBERMANN: Well, just to highlight these last 35 days of the Steele administration, he's waged war with Limbaugh, he's threatened the more moderate Republican senators who supported the stimulus, to Bobby Jindal the Indian-American governor of Louisiana, he offered slum love, he threw a shoutout to one-armed midgets and he promised party outreach to hip-hop settings, urban and suburban until apparently today he's not doing that anymore.

Does Dr. Fisher who has called for his resignation - does she have a point on this whole eroding confidence thing?

KOFINIS: Yes, I think she does have a point. But I'll tell you, I'd go one step further. I think Michael Steele is emblematic of where the Republican Party is.

This is the party that has lost its soul over the last eight years when the Republicans were in the majority. Their ideas, their ideals, their policies basically have been disproven. They don't know where to go, so they keep embracing this out-of-touch conservative talk show host in Rush Limbaugh, and it just further digs a hole for them.

I'm not sure what they need. But they clearly need either an intervention or exorcism. I'm just not sure which one will save them at this point.

OLBERMANN: Well, but, to what degree is this - I'm sorry, I'm distracted by the video again - to what degree is this really Steele's fault? He has now told the "Washington Post," "I'm in the business of ticking people off. That's why I'm chairman."

I've never heard before. Is that the job description for a successful party chairman?

KOFINIS: You know, the ticking them off strategy ain't going to win you a lot of votes in 2010 or 2012. The job of the chairman of the party basically, you know, falls into two categories. One is to present the vision and the ideas of the party - you got a big problem there for the Republicans. And then to go out there and recruit and organize and attract new voters, and that's - they also have a problem there.

What's also happened to them which is making his job even worse, he's basically has no professionals around him that are basically telling him this is what you need to do in order to put the party back on where it needs to be. And so, he's trying to direct it. And you are just seeing, he cannot do this. And he's trying to make it all about himself.

He's not a talk show host anymore. He's the head of the Republican Party. He can't be both.

OLBERMANN: All right. If you are taking bets, it's 35 days. How much longer is it going to be that he is in charge here? And if not, who? I mean, the last vote to elect him was a bloody mess that resulted in an institutional mess.

KOFINIS: Well, if you want - if you want to think about something scary, I think Michael Steele may be the best they have at this point. The reality is, I don't think he gets replaced any time soon. I think it would be too chaotic. I think it would show the party in even further chaos.

I think what they're going to end up doing is layering him. They're going to bring in an executive director, some professional who's going to basically organize and manage the shop, and basically make Michael Steele kind of the figure head or a talking head, which may be actually even more problematic.

But if he keeps going down this road with more of these, you know, verbal missteps and distractions, he's not going to last very long.

OLBERMANN: Chris Kofinis, Democratic strategist - as always, Chris, great thanks for the insight.

KOFINIS: Thanks, Keith.

OLBERMANN: To show you how jangled the Republicans are at a moment, even when they might have had a valid cause, they seem to push too far and blow the whole thing. A new lawsuit from Samuel Wurzelbacher, aka Joe the Plumber, he is suing three former Ohio state officials for allegedly violating his civil rights by searching state computers for his private information after John McCain made him famous in a debate with now President Obama. Fair enough, probably, until this news conference at which Wurzelbacher and the conservative group, Judicial Watch, insinuated something that was found nowhere in the lawsuit - that Obama was somehow involved in this.

Judicial Watch's president is saying, quote, "There is an open question whether Joe the Plumber was number one on Obama's enemies list." And then Joe explained he can no longer find work as a plumber. But it wasn't because he doesn't have a license as a plumber, it's Obama.

Republicans seemingly even retroactively rattled tonight. Karl Rove,

the only modern politician who could strut while sitting down, even though

it's televised nor in front of a hearing, and even though it's a trial of -

not a trial but a deposition, Karl Rove has now preemptively declared himself the victim of a "show trial."

(COMMERCIAL BREAK)

OLBERMANN: It's not just going to be a show trial, the former Bush's brain says of his testimony to Congress; he'll be the main course, and possibly wind up barbecued. It sounds like Mr. Rove is hungry.

Later, we are joined by the international human rights lawyer who looked at the John Yoo memos and declared, yes, the Bush administration operated under the premise of a dictatorship.

And, we'll try to teach Ann Coulter something about the university she attended, of course, if it failed to teach her anything over four years, what chance do I have in four minutes. Worst Persons is ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: Just one day after his old boss agreed to let him testify to Congress, Karl Rove has already lost it. In our fourth story tonight:

Making insane allegations - fittingly - in an interview with FOXnoise.com. The subject was Rove's upcoming but not yet scheduled deposition for the House Judiciary Committee on both the prosecution of former Democratic governor Don Siegelman of Alabama, as well as the firings of seven U.S. attorneys in 2006.

Also, cooperating now is former Bush White House counsel, Harriet Miers. Rove is saying about Democratic interest in her and other former officials quote, "I understand they may be the hors d'oeuvres, but I'm the main course." OK, that quote is just pretty fair, come to think of it, but Rove goes further saying, quote, "Some Democrats would love to have me barbecued." And that is just behind the - Yes, OK, and that's actually literally true.

But in another phrase, Rove manages to get two things wrong in the space of two whole words, telling the FOX he thought the proceedings could turn into - let's put this on the screen, can we - a, quote, "show trial." In fact, not only is Mr. Rove not on trial in these proceedings, no one is, because it's not a trial. As Mr. Rove well knows, the proceedings will take place behind close doors, which means it's not even show. Get the lies out of your system now, Mr. Rove.

Adding angular momentum to Mr. Rove's spin, FOX helpfully reminds us that Judiciary Chair John Conyers reportedly said of Rove last year, quote, "Someone's got to kick his ass" - which would, of course, make this not a show trial at all, just a good old-fashioned ass-kicking.

Remember, Karl, if it does become a witch hunt, that doesn't mean you're not a witch.

Let's turn now to Chris Hayes, Washington editor of "The Nation" magazine.

Thanks for your time tonight, Chris.

CHRIS HAYES, THE NATION: Thank you, Keith.

OLBERMANN: Your response to Mr. Rove's pre-martyrdom, if you would?

HAYES: Well, my response is that I wish he'd shown such acute sensitivity to due process when the administration he was working for was snatching up and kidnapping taxi drivers and wedding attendees, and a Canadian citizen named Maher Arar, and holding them incommunicado for years, away from any access to lawyers. And I wish he'd shown such sensitivity to the politicization of justice when Republican hacks were pressuring U.S. attorneys to pursue specious charges of voting fraud.

So, I think what's interesting is that the power of the state looks a lot different when you are on the other side of the bayonet. And Rove has had a sudden kind of convergent to that view, which, I think, is pretty interesting.

OLBERMANN: Yes, the interesting part about it, maybe the most interesting part about it, is that we tend to think of it in those terms, the other side of the bayonet. He's not being threatened with a bayonet here.

HAYES: Right.

OLBERMANN: I mean, his worst-case scenario is what - he's being threatened with the lid of the - cap of the pen?

HAYES: Right. I mean, that's what's so silly about his reaction.

I mean, this is such a watered down version of what could, by all rights, happen him and happen to other members of the administration, which would be an actual trial that would actually be public, would have actual criminal charges, whether here in the U.S. or some - in some international forum. All of that is completely plausible, given the set of facts as Scott Horton, I'm sure, will talk about. What he is getting off very, very lightly, I don't think he should be complaining at all.

OLBERMANN: "Newsweek" reported that President Obama pushed the deposition deal that they made here, in part, because he didn't want to end up in court defending Mr. Bush's executive privilege claim. And, of course, obviously, there's some reason for it, the current president not to want to undermine executive privilege for his use later on.

HAYES: Right.

OLBERMANN: But, if the first part of that is true, it sounds a lot like Obama agrees with Bush's interpretation of this. Can you illuminate this one at all?

HAYES: Look, one of the arguments that civil libertarians on both sides of the political spectrum during the Bush years was that, you do not want to, in a moment of partisan advantage, open up a massive new amount of executive power, because someday, you're going to be out of power and you don't want a Democratic president to have that power. And we are seeing the chickens coming home to roost there.

If you look at the history of the American people presidency, it is not one in which American presidents give up executive power willingly. They must be pressured to do so. And whether it's George W. Bush or Barack Obama, the case for me is clear, we have a - that people who care about civil liberties have a principled objection to the enlargement of executive power, and that objection stands and holds no matter who is occupying the office. And there is going to be pressure from those people for the Obama administration to ratchet it back and we're going to see whether they're going to do it or not.

OLBERMANN: Last question, smaller picture - the deal itself. It shuts down any questions about communications that Rove and Miers had with then President Bush. And I presume - does that mean we don't ever get the full story on his involvement?

HAYES: Well, I would never say never. I mean, we don't know how things are going to unfold in the future. There, certainly, is a tremendous amount of evidence that some truly, truly vile things went on.

I do think that if I were a betting man, the nature of the political crisis of the moment vis-a-vis the economy in particular, is such that it overwhelms all of the - all of the imperatives to go back in time. Not that I think that's the right thing to do, but I think, from a practical political perspective, it's going to be very unlikely we're going to see much political capital invested in that kind of effort.

OLBERMANN: Chris Hayes of "The Nation" - as always, many thanks, Chris.

HAYES: Thank you, Keith.

OLBERMANN: This just in tonight: There has been a whoo-hoo-hoo sighting. And, if you are going to be paranoid, insane and racist about the president of the United States, could you at least learn how to spell? Worst Persons is ahead on Countdown.

(COMMERCIAL BREAK)

OLBERMANN: Bests in a moment, and - oh, what a shock, admitted steroid user, Alex Rodriguez, is suddenly injured and unable to play for 10 weeks or four months or who knows how long.

First, on this date n 1994, the residents of Nelspruit in South Africa, using 1,955 gallons of chocolate ice cream created the world's largest milk shake, which was promptly all drunk up by Daniel Plainview. That's an old reference. Let's play Oddball.

We begin in London, where a Michael Jackson sighting today caused the Dow Jones index to slip almost 300 points. This afternoon, the "King of Pop" appeared before screaming fans to announce a series of concerts he claims will be his last in the British capital, at least. There will be 10 shows starting in July. And while we know this is it for Jackson in London, I'm still not clear on the name of the tour.

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, SINGER: This is it.

(CHEERS)

JACKSON: This will be it. This is it. And when I say this is it, it really means this is it. This is it. I mean, this is really it. This is it. And see you in July.

(END VIDEO CLIP)

OLBERMANN: So, he's going to cover "This is it" by Kenny Loggins?

How about palate cleanser? In Kanpur, India, where they've proven that you can put a little seltzer water in anything and call it soda. This gentleman is drinking cow urine soda, developed by a Hindu group offering an alternative to western soft drinks.

The "cowla" is still in the R&D phase and it will be not available commercially for at least a few months. Flavors will range from gooseberry to aloe vera, and if you can keep it down, the drink is believed to have medicinal properties. Didn't they sell this stuff here in the '90s under the name "Crystal Pepsi"?

The columnist and human rights attorney who cut to the chase, that the just released Justice Department memos meant we lived under the Bush dictatorship. Scott Horton joins us.

And as we have observed (ph) in every president, is just not this early. What's up with Obama's - these stories ahead.

But, first, time for Countdown's Top Three Best Persons in the World.

Number three: Best I told you so. Alex Rodriguez admitted steroid user and as we reported to you previously, possibly suspected of worse, has suddenly been found to have a cyst in his right hip and must now see a hip specialist. No indication at this point as to how long he might not be able to play.

Today, we learned it's a cyst or it's torn cartilage. He could miss 10 weeks or maybe four months. That if he had been suspended for his admission of steroid use, it might have been in that range - total coincidence. That cystic formations in the hip are, in that case, a by-product of injection of steroids or other hormones - total coincidence.

Number two: Best dumb criminal, Shawn Thomas Lester of Charleston, West Virginia. Police say he ordered a soft drink at a convenience store, possibly some cow urine soda, and told the clerk he was robbing the place and have a gun. Then a customer walked in and Mr. Lester apparently got flustered by the prospect of witnesses. The clerk demanded Mr. Lester pay for the drink which he did using his debit card, the one with the name Shawn Thomas Lester on it.

Number one: Best bureaucratic decision. Director John McCalley of what have been the Iowa's State Department of Elder Affairs. The legislature there just changed the name of the department to the Department on Aging. Department on Aging, DOA. Mr. McCalley says they are not going to call it DOA. They are just going to go with DA.

(COMMERCIAL BREAK)

OLBERMANN: It was far worse than tortured logic about torture. It was a dark Constitutional fantasy, a remarkably wrong interpretation of the nation's highest laws, handed over to the Bush administration as if it were law, because for more than seven years it effectively was law. In our third story on the Countdown, the Bush era, John Yoo Justice Department memos. Scott Horton, the international human rights lawyer, who pegged this for what it was, a blueprint for dictatorship, will join us presently.

What the Justice Department's Office of Legal Council did after 9/11, in memos by John Yoo, but not him alone, bluntly described, in Mr. Horton's column in "Harper Magazine, "he," Yoo, "concluded that in war time the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as a counter-terrorism operation inside the United States."

Thus, as Karl Rove and Harriet Miers prepare to testify about a different set of Bush administration abuses, who will answer for these legal memos, only some of which have been released? Mr. Horton wrote, "we may not have realized it at the time, but in the period from late 2001 to January 19th, 2009, this country was a dictatorship."

Joining me now, as promised, the legal expert in international human rights and emerging markets, contributing editor for "Harper's Magazine," Scott Horton. Thanks for your time.

SCOTT HORTON, "HARPER'S MAGAZINE": Hi, Keith.

OLBERMANN: Let's start with the retroactive devil's advocate point;

Bush did not order at any point the military seizure of part of Cleveland. He did not imprison Markos Moulitsas. This was certainly not an active military dictatorship or dictatorship of any kind in anybody's tangible perception. What do you say to the idea that these were just outer parameters in the event of true internal chaos?

HORTON: True. Certainly, it wasn't seven days in May. But it also wasn't a theoretical or academic exercise. These memoranda were crafted with specific programs and projects in mind. The question is exactly what? If we look at some of the most troubling of the memoranda, there is a clear focus on the use of the commander in chief powers, the use of the military domestically in the United States.

And John Yoo says the Fourth Amendment presents no impediment. The Fourth Amendment is a limitation on surveillance. It creates a requirement of warrants for listening in to people's telephone conversations, for instance. In this case, I think it is pretty clear this was designed to authorize the military, military agencies, to engage in a sweeping program of surveillance in the United States.

In fact, one thing really left out in this memorandum, and that was the juxtaposition of the Fourth Amendment with the First Amendment. A statement by the same reasoning the First Amendment wouldn't contain the limitation. I don't think that was put there gratuitously. You had Russell Tice on your show just a few weeks ago talking about the fact that journalists were specifically targeted in one aspect of the program that he was familiar with.

I think we see in these memoranda the authorization for that.

OLBERMANN: A point I made when we learned about the suspension of habeas corpus for non-citizens. If you were an American citizen and you were somehow declared a non-citizen and you said, but I'm a citizen. I have my birth certificate with me, my passport with me, you would have had no opportunity, no right to go to a judge to prove it.

So, effectively, a rule that was supposedly just pertaining to non-citizens applied to anybody, right? That's at the heart of this, isn't it?

HORTON: That's exactly it. That's the reason why I use the word dictatorship. That is, there is no division of power, authority. There is no role reserved for judges to hear your complaint. There is no role for Congress. It is all up to the Executive.

In fact, it is worse than you portray it. The president, if he wants, can have you squirreled away in the brig in Charleston, South Carolina, and he can have you tortured there. And you have no appeal from that in these OLC opinions.

Of course, that is not the law. It is a ridiculous portrayal of the law. It is what the OLC told the president he could do.

OLBERMANN: What do we have to do about this now? Obviously, these things were rolled back in those final cover your butt memos, but - so presumably they are not in effect anymore. You can't just say, good, we got through that. Everything's great. Do we have Pat Leahy's truth commission, is there a special prosecutor? Do we all need to get pitch forks and torches and go to somebody's house? What do we do?

HORTON: Maybe not the pitch forks and torches, but I think the other options you talked about are in order. In fact, I would add one thing to the beginning, and that is Bar disciplinary proceedings. We know there is an internal investigation inside the Justice Department, looking at these memoranda. I'm told that it draws harsh conclusions and it recommends disciplinary actions.

No surprise here about that. Any lawyer would think that. We also have to get to the bottom of these programs. Why were these memoranda crafted? Who requested them? How were they used? How were they relied upon. Steven Bradbury says in one memo, a throwaway line, that they were rarely relied upon. Of course, all you have to do is have someone rely upon them one time to authorize a program, and they can be used for seven years and tens of thousands of times.

OLBERMANN: Do we have any indication, having looked at this carefully, does it look - you said crafted. This does not look like a paranoid response to a cataclysmic event that we all went through in September 2001. In that sense, it doesn't look like somebody panicking. It looks crafted?

HORTON: Absolutely. These memoranda are extensive. They have lengthy historical discussions. I would say, looking at them, they look an awful lot like law review articles and books that have been written by John Yoo. It looks like John Yoo has found an opportunity to turn his nutty legal theories into opinions of the attorney general. That's what he did.

OLBERMANN: Keep one finger crossed here that it's his last opportunity to do that. Scott Horton, national security lawyer, contributing editor to "Harper's Magazine," thanks for stating this as bluntly as you have. Thanks for being here too.

HORTON: Great to be with you.

OLBERMANN: A different kind of crisis for this commander in chief.

Some of the president's dark hair is missing.

Worsts, correcting Ann Coulter's 25 year old total misunderstanding of her alma mater. When Rachel joins you at the top of the hour, we told you about Dr. Aida Fisher, the Republican National Committee woman, calling on Michael Steele to resign as chairman. Dr. Fisher is Rachel's special guest.

But first, because they may be gone, but their deeds outlive them, the headlines lingering from the previous administration's 50 running scandals, Still Bushed.

Number three, blame the unions-gate. The same people reading the same Bush talking points long after Bush left; Neal Cavuto of Fox slamming Stewart Acuff of the AFL-CIO for having his members stay at a high-priced Miami hotel. Acuff then explained the union had negotiated with the hotel three years ago. Part of their deal was his members would get those rooms for their convention for under 200 dollars each. To his credit, Cavuto said, "really. All right, then everything is off. You did OK."

Less than an hour later on Fox, Glenn Beck came on and ripped the AFL-CIO for spending 400 to 1,400 dollars a night on those rooms. Facts never get in the way of Glenn Beck's talking points, not even the facts presented on his own network minutes earlier.

Number two, bailout-gate. First National Bank went under last year, meaning we had to pony up 739 million dollars out of the FDIC to cover for depositors. Now the inspector general of the Treasury Department says federal banking regulators knew the bank was bleeding itself to death because of loose residential and commercial mortgages and they knew it as long ago as 2002. Regulators knew six years before that 739 million dollar disaster that the owner of the bank, a Mr. Raymond A. Lamb (ph), had created a culture in his company that was, quote, high risk and one that emphasized growth and profits over appropriate risk management.

And through six years of the Bush administration, the only thing the Bush Treasury Department did was raise the bank's asset quality rating from a three to a two.

Number one, operation enduring hypocrisy-gate. Long ago Press Secretary Ari Fleischer slamming Robert Gibbs for referencing Boss Limbaugh. "When you do it from the White House," he said, "you are bringing the weight of the government on to that private person. So you really have to be careful about it and do it with some grace. Going after Rush Limbaugh, it is just to me the usual nonsense. It is gamesmanship. It's gamesmanship."

On September 26th, 2001, asked by the embarrassing about remarks by Bill Maher about the relative cowardice or courage of terrorists flying themselves and innocent victims into a building and troops firing missiles thousands of miles away, the press secretary said, quote, "it is a terrible thing to say. It is unfortunate. They're reminders to all Americans that they need to watch what they say, watch what they do. This is not a time for remarks like that."

Gibbs mildly calls out Limbaugh. That is nonsensical gamesmanship. Fleischer tells Maher to watch what he says, contributes to an environment in which ABC fired Maher from his show, warns Americans not to speak freely, that's OK.

Of course, given the context Scott Horton just put it in, with memos being formulated authorizing President Bush to suppress the media or use military against Americans, I guess it was OK, since this was a dictatorship.

(COMMERCIAL BREAK)

OLBERMANN: No, you have not been seeing things. "The Washington Post" and "New York Times" conclude President Obama is going gray before our eyes. Yes, I know the feeling. That's next, first time for Countdown's number two story, tonight's worst persons in the world.

The bronze to Coulter-geist. While attempting to embarrass others, she has, as usual, managed only to humiliate herself. The new column appears to be somehow meant to rationalize Boss Limbaugh not knowing the difference between the Declaration of Independence and the Constitution. She tries to achieve this by explaining that since I did not attend the same college at Cornell University that she did, I don't really have a Cornell education.

"Keith didn't go to the Ivy League Cornell. He went to the old

McDonald Cornell. The real Cornell, the school of Arts and Sciences,

average SAT 1325, acceptance rate one in six applicants, is the only Ivy

League school at Cornell, the only one that grants a bachelor of arts

degree. Keith went to an affiliated state college at Cornell, the College

of Agriculture and Life Sciences. Average SAT, about that of pulling

guards at the University of South Carolina. Acceptance rate, one of ever

1.01 applicants."

Yes, close Ann. Our alma mater supplied these interesting statistics this afternoon. The arts college acceptance rate is now one in five applicants. The Ag college acceptance rate is now one in five applicants. Anne also missed the fact that Ag students could, as I did, and as my successors can still, take just as many classes as she did in that arts college. I took nearly half of mine there. Except, in our time, I paid about 800 bucks a semester for that privilege, while she would have paid closer to 10,000.

"Olbermann's incessant lying about having an Ivy League education, when he went to the non-Ivy League Ag school at Cornell," she continues and continues and continues, "would be like a graduate of the Yale Locksmithing School boasting about being a Yale man."

Sorry again, Annie. Here is my receipt. See, it is a diploma and it says, Cornell University. There is a logo in the middle with the guy with the beard. Down here is the name of the college, in the lower left, just like yours. It is the same degree as yours, only I got mine in seven semesters for about a tenth of what you paid for yours. And they gave it to me when I was 20 years old.

Seriously, in four years as a student in Cornell, and nearly 30 years as an alumnus, I have never before heard one graduate of one of the university's colleges belittling all its other colleges as not counting. We have always considered each other worthy, hard working and equal, and having benefited from an incredible educational opportunity. Sorry you missed yours, Ann.

Our runner up, Bill-O. It is the fund raiser for the rape victim support group again, the It Happened to Alexa Foundation. Now it is more than O'Reilly, who once blamed a dead New Jersey rape victim for her own brutal end, speaking at the fund raiser two weeks from now. It is more than the foundation's contention yesterday that he is not going to talk about rape, he's just going to talk about his book. He has now dragged a veteran and tireless victims rights advocate into this. "Also appearing with Mr. O'Reilly," reads the foundation website, "will be Wendy Murphy," advisory board member of It Happened to Alexa Foundation.

Wendy, he called the dead rape victim moronic. He described on TV what she was wearing as if she asked for it - radio, excuse me. He never apologized. And you are going to stand there with him in front of group of rape victims and supporters?

But our winner, Larry Ford of Ft. Walton Beach, Florida. Next to the Confederate flag he flies on his property there, he has put up two signs, which this cretin says will remain, quote, until we get rid of President Obama. We have a man who shouldn't even be a president, he told the local newspaper today. He's an insult to decent hard working people that made this country what it is.

Here is the sign: "January 20, 2009, a dark day, Hussen." H-U-S-S-E-N, Hussen. When the apparent misspelling of the president's middle name was pointed out to Mr. Ford, he replied, quote, I think everybody knows who I'm talking about, don't you. The American people are the stupidest people in the world. But something like that, I think they can figure out.

American people are the stupidest people in the world, you say? Thank you, Mr. Ford, for being our one man national stupid supply. Hussen. Ann, one of your readers, Larry "Hussen" Ford of Fort Walton Beach, Florida, today's worst person in the world!

(COMMERCIAL BREAK)

OLBERMANN: It's been 754 days since a young presidential hopeful stood before a crowd in Springfield, Illinois. Two years later, the candidate has become the president, but the title is not the only thing that has changed. Our number one story, this just in, the president is going gray. Six weeks on the job and Mr. Obama has noticeably more gray hair than when he first took office. Global economic meltdown, two wars, Plummets stock and job markets all on the president's plate, perhaps all contributing to the change on his pate.

Mr. Obama's long time barber asserts that the president does not dye his hair. Notes that gray hair for late '40s crowd is, in fact, normal. Gee, thanks. The graying of Barack Obama first noticed during the latter stages of the 2008 presidential campaign, with the then candidate himself poking fun at the silvery strands.

The discussion on presidential aging, no news flash to those who have actually held the office. George W. Bush going from salt and pepper to just plain salt. Bill Clinton's hair, of course, morphed from hints of silver to almost jet white.

And with all the talk of stress and aging, a sign of the opposite, a White House swing set. Sasha and Malia Obama returned home from school on Wednesday to discover their very own South Lawn playground. It is right outside the Oval Office, so the president can see what his daughters are up to, which brings back to the original point here, another reason for more gray hair.

Joining me now, the Washington editor of "The Week Magazine," political columnist for "Bloomberg News," Margaret Carlson. Good evening, Margaret.

MARGARET CARLSON, "BLOOMBERG NEWS": Hello, Keith.

OLBERMANN: This business of president graying, both the "New York Times" and "Washington Post" had stories about it today. Congressman Rangel teased the president about going gray at the health care summit this afternoon. The president has this stress free demeanor most of the time. Is that where it is all going, up here, to the hair? Is that what is happening?

CARLSON: Right, it is pushing out of his scalp. He seems to be blessed with a very even temperament. Remember when he was told to get angry back in the Fall because he was being attacked. He said it is not really his temperament. He doesn't have highs. He doesn't have lows. With that family, you can understand why he would be a cheerful person. What a happy site. It cheers me up to see it. Most of our presidents - think about Reagan, he never said - he never would admit that he dyed his hair, but it did have a slight orange tinge to it, which is the giveaway.

Candidates want to remain looking young. But a little bit of gray, as in when Dan Quayle was named vice president and he bounced up and down on the river there in New Orleans, when it was announced, and everyone said he was callow youth, and very soon after that, he did a reversing, which is I think he made the temples gray to add a little dignity. You men are allowed to get gray hair. It makes you, quote, dignified.

OLBERMANN: As you mention that, we saw Clinton and we saw George Bush graying during their tenures. You brought it up, so I guess we have a sequence to show the, yes - OK. That's kind of dark. Still kind of dark. Sort of. And now and going, going, gone, goodbye. Is it a job that does this or are we just really recognizing natural pigmentation processes that everybody goes through, except Ronald Reagan?

CARLSON: Well, we don't have a control group of 20-year-olds who become president or talk show hosts, to see if they were in the job if they would get gray hair prematurely from the stress of it. However, we have the experience of those we've had, and Bush and Clinton are fairly good examples of pretty rapid going dark to gray, and then Clinton with white.

OLBERMANN: Yes.

CARLSON: The job is terrible, I mean, especially now. I mean, I'm waiting for Obama, however, to get angry at John Thain and the bankers and taking the bonuses. It is not his temperament. But the lace in the White House is made so smooth, your lunch on a tray, your feet almost never touch the pavement, the car is at the curb, you have intersection control. That is in exchange for having those problems 24 hours a day.

OLBERMANN: Now -

CARLSON: I don't know how many worries you have, Keith -

OLBERMANN: Not 24 hours a day.

CARLSON: We know what the president's are.

OLBERMANN: Are we adding one or subtracting one. As Mr. Bush said, the stress of the presidency did not make him go gray. It was the stress of having teenage daughters. This president has younger daughters, who will be teenagers by the end of this, both of them, and a playground set outside his office window. That is either a solution or this is going to make this problem exponentially worse. Right?

CARLSON: Right. Well, there are some things George Bush and I can agree on. I think children keep you young. I think teenagers make you old very, very quickly. The Bush daughters were a particular, I think, speeding up of the aging process. But what a great thing to be able to look out the window and see your kids, even if they are going to break a shoulder - even if they are going to fall off and break a shoulder blade, I think it is a very soothing sight.

OLBERMANN: Worst comes to worse, you and the Secret Service run out and fix it. Margaret Carlson of "Bloomberg News" and "The Week," great thanks, as always, Margaret.

CARLSON: Thanks, Keith.

OLBERMANN: That is Countdown for this the 2,127th day since the previous president declared mission accomplished in Iraq. I'm the rapidly graying 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