The Rachel Maddow Show, Transcript 05/07/15

Guests: Ellen Weintraub, Jonathan Hafetz

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thank you, my friend. HAYES: You bet. MADDOW: Thanks to you at home for joining us this hour. A lot going on in today`s news and a lot that`s due to unfold tonight over the course of this hour and d later on tonight. We`re still waiting for results in the British elections tonight. Polls have been closed for about four hours now. David Cameron trying to hold on to advertise position as British prime minister. Heading into today`s voting, the polls had been just about exactly tied between David Cameron`s Conservative Party and the Labour Party headed up by Ed Milliband. Preliminary results tonight suggesting the Conservative Party, and therefore David Cameron, may have done better than what was predicted in the polling but we will see when we get the real results instead of just the projections which is what we`ve got now. Here in the U.S. tonight, President Obama has just flown to the great state of Oregon. Nothing to do with owls attacking joggers in that park in the Oregon state capital. Nothing to do with that state`s Republican Party chairman running a side business in which he asks members of the general public to mail him their urine. Nothing about the still inexplicable girlfriend scandal that drove that state`s once very popular governor out of office. Nothing to do with any of those stories. Nothing to do even with Oregonians being obsessed with the carpet at the Portland airport. The president`s visit has nothing to do with any of the truly strange news stories out of Oregon over the past few months that have made the state an object of national fascination or at least an object of my fascination. Now, President Obama`s visit to Oregon tonight is because he is going to Nike. Nike. Nike`s headquartered in Beaverton, Oregon. Nike`s a very large company. It has about 26,000 employees in the United States. But the number of employees they have overseas just completely dwarfs their workforce at home. Yes, they`re headquartered in Oregon and they`ve got 26,000 American employees but they`ve got a million people working for them overseas, in contract factories where the pay and the labor standards are generally terrible. And that kind of business arrangement where even iconically American products get made overseas, because it`s more profitable to have the work done in places with terrible wages and terrible labor standards, that age- old dynamic which has killed off huge swaths of working-class and middle- class American jobs over the last few decades, that dynamic many people worry will get even worse than it is now if this big 12-country Asia trade deal goes through which the president favors. And so, President Obama, mark my words, clearly has something up his sleeve here, because he has gone to Oregon tonight. He`s doing a DNC fund- raiser there tonight. But he is going to Nike headquarters tomorrow and it is at Nike where he`s going to give his speech tomorrow about why people should support his very controversial Asia trade deal. Nike is the poster child for why people are freaked out about that deal. Nike is the poster child for why labor and Democrats and people on the left and people in the center are opposed to that trade deal in considerable numbers. So, there must be something up his sleeves, right? This is -- this is too obviously counterintuitive, right? It would be like him announcing the approval of the keystone pipeline at the site of a pipeline spill, right? It doesn`t make sense for him to go to a company that`s sent all of its jobs to Vietnam to make a case for a trade deal that will make it easier for American companies to send all their jobs to Vietnam. So, it can`t be what it seems like. Something`s going on here. The president is due to speak at Nike tomorrow, and we will see. Maybe it`s all as obvious as it seems. I think that we should expect some sort of surprise announcement tomorrow from the president just given the place where he`s going to be making that speech. The president is due to speak at a DNC fund-raiser tonight in the meantime. And, you know, this trade issue is a divisive one in Democratic politics. Some Pacific Northwest Democrats like the powerful Senator Patty Murray of Washington, she supports the president on the trade deal, even though she`s willing to buck him from the left on other issues. Other Pacific Northwest Democrats like Peter DeFazio of Oregon, he`s against the president on the trade deal. Former Secretary of State Hillary Clinton supported the trade deal when she was in the Obama administration as secretary of state, but she`s now being much cagier about the issue now that she is running for president. It was also an interesting consolidation of some of the loudest and most popular voices on the left side of the Democratic Party today which is where that interesting dynamic is between the president and the left. Today, President -- excuse me, Massachusetts Senator Elizabeth Warren and New York Mayor Bill de Blasio co-authored an op-ed in the "Washington Post" calling for new populist economic policies from the Democratic Party. Elizabeth Warren and Bill de Blasio getting together. Hmm. So, there`s interesting stuff going on. Right? There`s a bit of a roiling going on in Democratic politics in general and specifically tonight. President Obama is clearly going to drop something unexpected tomorrow on this big economic issue. Nobody quite knows where Hillary Clinton is going to land on that issue. Nobody quite knows where Hillary Clinton is going to land on a lot of issues as she keeps up her run for the Democratic nomination to succeed President Obama. So, there`s a little unexpected and sort of exciting drama in Democratic politics for once. In Republican politics, though, it`s as exciting as it ever is. Tonight, it is official that Governor Rick Snyder of Michigan despite making overt gestures this week about running for president, Rick Snyder, the governor of Michigan, now says tonight he is officially out. "I do not have plans to run for president in 2016". That`s as of a couple hours ago. Governor Snyder previously held one of the spots on our list of 22 likely Republican presidential candidates this year, 22 -- 22 -- which is an insane number because this is -- this is not a list of cranks and protest candidates and people who, like, change their name to something embarrassing so they can run for office and see their funny name on the ballot. I`m looking at you, Limberbutt McCubbins. I don`t know. Maybe that`s your given name. The list of 22 people that we have been working with, it does not include the Limberbutt McCubbins` of the world, right? This is our real list of who is legitimately in contention on the Republican side and is likely to run. And honestly, 22 names is an unwieldy thing to handle. It is an unusually large number of people when you`re trying to put together a list of likely presidential contenders. Historically speaking, it`s unprecedented. There`s never been a field that big. And it has been creating problems this year. It created problems for us here on the show the other night. We were running down various new news about candidates on our list of 22, and in the middle of me talking about former Virginia Governor Jim Gilmore who is apparently going to run again, and Donald Trump who`s apparently going to run, in the middle of me doing news about them, we randomly started showing video of Kanye West and Kim Kardashian which was a very wonderful mistake to make on live television. But mistakes are getting harder and harder to avoid, just because there`s too many people to keep track of on the legitimate contender list. It`s been raising all sorts of substantive political issues. Pollsters having a hard time deciding how many of these people they have to actually bother to poll on, and if you put them on a graph, you start running out of colors, right? Look at that -- all those lines. That`s just a fraction of the likely candidates this year that they`re polling on already. The Republican Party also has very hard, very serious decision to make about who they`re going to let into the debates, because if they do decide they`re going to let them all in, then where`s the audience going to sit? And for the candidates, themselves, there`s an obvious challenge in terms of how they differentiate themselves in a field that has a handful of everything, right? There`s a whole bunch of freshman senators, there`s a whole bunch of political outsiders who have never held public office. You know, up until tonight, there were a whole bunch of Midwestern governors, three of everyone. But not anymore now that Michigan Governor Rick Snyder has confirmed what was reported first on last night that he will not seek the Republican nomination, which means for us in the TV news business, the production challenge of how to show all of these people who are potentially running without accidentally showing Kim Kardashian just got a little tiny fractional bit easier, teeny, tiny. Last night, following that "Politico" report, we debuted our way of removing somebody from the list. We debuted the production means on taking somebody off the list. We did that tentatively last night for Governor Rick Snyder based on that "Politico" story. Tonight, we have officially, though, poofed him off the list. So three, two, one, ready? Poof. Ah. He`s gone. And he is the first of the 22 names on the list to take himself out of the running which means, you know, laws of math, carry the 1, there are still 21 people in the race. It`s still the largest field there`s ever been of conceivably viable contenders for the nomination. Obviously, only one of those people is going to become the Republican nominee, but you can sort of see the appeal in running. What lured so many of them in, right? I mean, the folks left on this list, their chances got a little better tonight with Rick Snyder dropping out. You know, there`s also the big dynamics. Political precedent says after a sitting president serves two terms, generally speaking, the country is usually in the mood to switch to the other party, right, that`s not always the way it works, but that, in the modern times that has been the way the country has generally felt. So, whoever the Republican nominee is, that person will have a fairly decent chance in 2016 just sort of by the law of historical averages. And even if you don`t get to be the nominee, even if you don`t get to be your party`s candidate for president, if you run a good race, that might set you up well to get picked to be the vice presidential candidate. Or you might end up with a cabinet post if your party wins the presidency or you might hit the real jackpot and get yourself a set of infomercials in a FOX News weekend gig. I mean, at the very least, mounting a credible bid for the presidency raises your national profile so you can see why they all want to run in a year when a Republican has a good chance. That`s obvious. But there was supposed to be something that was going to keep this from happening this year. There was supposed to be a structural and strategic reason that candidates would actually not jump into the race for the Republican nomination in such big numbers this year. There was supposed to be something that happened at the start of the cycle this year that was going to whittle these guys out. It was going to thin the herd. It was essentially the plan to intimidate people into getting out of the race, staying out of the race, never jumping in in the first place. That intimidation factor that was supposed to make it at least make people a little wary of getting in, make people think maybe it wasn`t worth it, that reason are was supposed to be Jeb Bush. Whether or not you think Jeb Bush has a shot at winning the presidential election, or the presidential nomination of his party, Jeb Bush had an early and aggressive strategy to win the nomination which was the strategy that worked wonders for his older brother, George. In the 2000 presidential election, George W. Bush raised so much money so quickly he in effect forced other would-be candidates out of the race, people like John Kasich, and Elizabeth Dole, and Dan Quayle. George W. Bush raised record amounts of money so fast, so early he succeed in making the other candidates feel like they were never going to have any prospect of catching up so they dropped out and George W. Bush became the nominee mostly by virtue of the fact that he raised all the money in the world at the very beginning of the race. I mean, you now think something else when you hear the words "shock and awe" and "George W. Bush" in the same sentence, but those words in fund-raising speak were his strategy, way of describing that deliberately aggressive strategy to raise so much so quickly that it`s obvious to everybody else that they won`t be able to compete, and so they don`t run. That`s what George W. did in 2000 and Jeb was going to be that guy this year. His $100 million every three 3 months fund-raising plan that they very happily made public was supposed to lock up the nomination and keep other people from running. It has not worked out that way at all. It has worked out the opposite. And it is -- I think it`s worth understanding or at least trying to understand why. I mean, certainly not because Jeb Bush has failed to raise the tons and tons of money that he said he was going to run, he`s been keeping to his schedule. He`s done that. That has gone as planned. The trouble for Jeb Bush, though, is that it has not been enough to keep other candidates from also doing the same thing. Ted Cruz, for example, surprised everybody by announcing first he was running for president. Following that announcement, he didn`t display a particularly impressive campaign fund-raising performance, right? So, for a moment based on his campaign fund-raising the Ted Cruz candidacy seemed like it was early but maybe a little underwhelming. And then Ted Cruz`s network of super PACs, Ted Cruz`s network of political action committees that can raise and spend unlimited amounts of money in an election on his behalf, those Ted Cruz super PACs announced actually, they had quickly raised more than $30 million for Ted Cruz. And so, then all of a sudden, Ted Cruz, even though he didn`t raise much money for his actual campaign, that $30 million announcement all of a sudden, yes, he looked like a viable presidential contender. Why would he drop out? And even Jeb Bush who has been raising money hand over fist, he has been raising the bulk of that money for not his campaign, but his super PAC -- Jeb Bush and his super PAC on track to raise $100 million by the end of this month. So, I mean -- say you`re not doing that great in the polls but you have tens of millions or maybe hundreds of millions of dollars, why would you drop out? The money is being raised in unexpected ways during this election. It`s contributing to the way the entire Republican field is shaping up and it is not just that perspective candidates are raising unprecedented amounts of money from outside group, super PACs. Candidates are pushing the bounds of how they`re going to use these super PACs as arms of their campaigns. Jeb Bush`s super PAC has taken over a lot of the traditional work of the campaign, advertising, direct mail, data gathering, phone banking. They say they`re going to do that all through the PAC. Not through the campaign. Can they do that? On the other side, Hillary Clinton is now the first Democratic candidate of the super PAC era to, quote, "embrace her super PAC." Hillary Clinton is regularly meeting with people of her super PAC. She is raising money for them. The deal with super PACs, sure, they can raise the money they want in unlimited amounts. They can spend as much as they want, no limits. Many of their donors manage to remain secret and anonymous. But they are not supposed to be coordinating at all with candidates and their actual campaigns. That`s the supposed arrangement. This election is pushing the boundaries of those laws. It`s pushing the boundaries in lots of ways. Strategically, you can`t raise all the money because apparently the money is infinite. And you can`t raise -- you can feel to raise money in unlimited amounts from individual people because even though you can only put that money in super PACs and not in your actual campaign, well, run your campaign out of your super PAC. So, all of the previous constraints on what you could do, strategic ways you might push somebody out of the race, strategic ways you might have to actually sing for your supper in terms of getting from here to the first campaign days, that stuff is drifting away. You would think that there was ever a time in our history when the people in charge of regulating money and politics, right, that people tasked with making sure the candidates are obeying the money in politics laws, if there was ever a time when we need those people, it would be now, right? The Federal Election Commission, it is your time to shine. You guys must be so busy. You must be working your fingers to the bone. This is the chairwoman of the Federal Election Commission speaking with "The New York Times" over the weekend. Quote, "The likelihood of the laws being enforced is slim." That`s Ann Ravel, FEC chairwoman. She told "The Times" this weekend, quote, "I never want to give up, but I`m not under any illusions. People think the FEC is dysfunctional. It`s worse than dysfunctional." That is the chair of the FEC saying the laws they`re supposed to enforce about money and politics during this upcoming election with unprecedented amounts of money being poured into politics, there`s very little chance those laws are going to be enforced. They`re the cops. They`re not working. If you`re a presidential candidate, if you are a super PAC, this is great news, right? For everybody else, this can be a little scary. One of the Democratic commissioners of the FEC, Ellen Weintraub, also spoke with "The Times" this weekend. She told "The Times," quote, "The rules that are left people feel free to ignore them." Joining us now is Ellen Weintraub. Commissioner Weintraub was first appointed to the FEC in 2002. She`s served as its chair twice and is its longest serving member. Madam Commissioner, thank you for being here. ELLEN WEINTRAUB, FEC COMMISSIONER: It`s a pleasure. MADDOW: I imagine it is frustrating to hear your very difficult work boiled down into a cynical rant. I wonder -- WEINTRAUB: I`ve heard worse. MADDOW: You`ve heard worse. I have to ask you, though, you seem cynical about the prospect of the FEC doing its job. WEINTRAUB: I wouldn`t actually describe it that way. MADDOW: OK. WEINTRAUB: I actually -- we have to keep swinging. I think that we have to maintain hope that the laws can be enforced because it`s really -- as you indicated -- a devastating message to say the laws will not be enforced. It is a challenging prospect because the reality is half of the commission doesn`t want to see the laws enforced and we have a 3-3 split. We have three Democrats, three Republicans. We need four votes to enter into any enforcement action, and increasingly, we cannot find those four votes. MADDOW: And that`s because of a -- it`s not because there can be a difference about the facts or difference of opinion about the severity of the alleged crime on each case you consider. If you got a uniform split like that, it must be because of an ideological difference about whether or not these laws should be enforced. WEINTRAUB: That is exactly correct. MADDOW: Republican commissioners think that we`re doing OK, money and politics right now is not something that needs any more policing than it`s ever had in the past. WEINTRAUB: I think that`s right. MADDOW: OK. So if that`s the system that we`ve got -- (CROSSTALK) WEINTRAUB: And if I may? MADDOW: Please. WEINTRAUB: My concern is what we`re seeing is a race to the bottom because the candidates are out there and the super PACs and outside spending groups that are even less transparent than the super PACs. And they`re seeing that the laws are not being enforced. They`re seeing that we had the lowest penalty total last year of -- any year since 1985, despite that fact that the money that`s being raised is going up and up and up. And they`re tempted. And they`re tempted in the same way that before there was a speed cam on my street, people used to speed routinely because they thought nobody would notice, and as soon as they put the speed camera in, people suddenly started obeying the speed limit. It wasn`t that they didn`t know what they were doing was against the law, they thought they were going to get away with it, nobody would notice, there wouldn`t be a penalty. And I`m afraid that`s the dynamic we`re seeing in politics today, where everyone looks around and they see one person taking an aggressive view of the law, I`m not talking about anybody in particular. But somebody every cycle comes up with a new, aggressive way of pushing the limits on the law. And everybody else looks around and they say, I didn`t get in trouble. And if I don`t do the same thing, then I`m going to be disadvantaged. I won`t be able to compete. So, as long as that person`s not getting in trouble, I guess I better do that, too. And before you know it, there`s rampant disrespect for the rules that are on the books. MADDOW: If you, as a commissioner, on the organization that is supposed to police this, feels like structurally you`re not doing your job, structurally you`re designed to be gridlocked and, therefore, take no action -- don`t take this the wrong way -- should the FEC commit organizational suicide? I mean, you`re part of the DOJ, right? If you -- WEINTRAUB: No. MADDOW: No? WEINTRAUB: We`re an independent agency. MADDOW: Independent agency. So, if the FEC committed organizational suicide somehow, right, if it can`t function, being there is actually worse than not being there because people think you are there and policing and you`re not -- which means that there`s nobody else stepping in to do anything about it because you have the responsibility even though you can`t exercise it. WEINTRAUB: Well, actually somebody is going to step in and that is a big problem because when people think there aren`t any rules, they get more and more aggressive, and then the Justice Department can and has in a couple cases stepped in to try and intervene in some cases. And they can - - MADDOW: But if things arise to the level of criminal behavior beyond election regulation violations? WEINTRAUB: That`s right. But I want to contest your assumption that the agency was designed to gridlock. I don`t believe that at all. That`s not, in fact, what happened for most of the agency`s existence. We are 40 years old. You showed our little 40-year logo. MADDOW: Right. WEINTRAUB: And for most of that time, commissioners came together and they understood that they didn`t start out in the same place. And they understood there were going to be a lot of ideological disagreements, but they thought their job -- all of us, all six commissioners thought their job was to try and get past those initial ideological differences and find a way to reach common ground, to reach a bipartisan agreement. Now, everybody wasn`t going to be crazy about what came out of that, but at least we could move forward. And we could make progress, we could give guidance and we could enforce the law. Back in the 2004 cycle, there were a number of outside groups that were pushing the envelope and the commission investigated them. We entered into conciliation agreements with them to settle those cases, and we ended up collecting about $3 million in penalties. And as -- MADDOW: And it had an effect. WEINTRAUB: It had an effect. MADDOW: It changed the dynamics. (CROSSTALK) WEINTRAUB: It changed the way people practiced politics. And now, people see that there aren`t any penalties, or there are minuscule penalties, and they feel like why bother? MADDOW: I`m very happy to talk to you about this. I`m very depressed by what you`ve said but I`m also feeling I have a lot more clarity than I did on this before. I hope you wouldn`t mind coming back. WEINTRAUB: I will come back, anytime. MADDOW: Thank you very much. This is a very important thing. Commissioner Ellen Weintraub from the Federal Election Commission, great having you -- WEINTRAUB: Don`t give up hope. MADDOW: I -- I`ll get back to you on that. (LAUGHTER) MADDOW: We got lots more ahead. Stay with us tonight. (COMMERCIAL BREAK) MADDOW: OK. Coming up in just a moment we have an experiment we believe will advance both the cause of science and national security. Also, the glue isn`t dry so it could be a disaster. Woo-hoo! Wish us luck. Yay! (COMMERCIAL BREAK) MADDOW: So, do you remember when those couple of guys in Brooklyn put up a statue of Edward Snowden in that Brooklyn park? This was a big mamajama. A large metal 4-foot-tall, 100-pound hunk of Edward Snowden which they mounted on a pillar on a revolutionary war memorial in the predawn hours in a New York City park. And it did last up there for a while. But it didn`t last a long while. The parks department eventually covered it up with this pretty blue tarp then they took it down. Well, yesterday, those Brooklyn guys got their giant Edward Snowden head back. They got ticketed officially yesterday for what they did. Their tickets were actually for being in the park when it was closed, which is illegal. But the bigger issue was their confiscated statue. The city had had their statue. Well, yesterday, finally, a month after they put it up in Ft. Greene Park, New York City gave them back their giant four-foot-tall bespectacled 100-pound metal Edward Snowden head. That`s what happened yesterday. And then, today, Edward Snowden got something else from New York City. He got vindication of a kind. A federal appeals court that sits in New York, an appeals court, just one level below the Supreme Court, the Second Circuit Court of Appeals, today ruled the NSA program that Edward Snowden leaked to the public because he thought it was illegal and people should, therefore, know about it, a federal appeals court ruled today that that program is in fact illegal. Constitutionally, they say that program cannot bear the weight the government asks us to assign to it. So, does this mean that Edward Snowden will come home from Russia now and, I don`t know, collect his giant head from those guys in Brooklyn? Probably not. He`s still facing charges of stealing and disseminating classified material. This court case does not change any of that. This court ruling is also now not the end on this subject. This part of the Patriot Act which has authorized NSA spying of a wholesale variety. There`s now a split in the various appeals courts on the issue of the constitutionality of that program, so the program will probably head upstairs to the Supreme Court fairly soon. Congress, though, is already considering scrapping the program or scaling it back or changing it somehow. The program has to be reauthorized within the next few weeks, anyway. So, both the law and the politics on the surveillance issue are still TBD. But if you are in the mood for a big, giant, polarizing and dramatic national security fight, I`ve got just the thing. And this is something that isn`t happening in the courts. It`s cooking at the White House apparently right now. And we`ve got that story next. (COMMERCIAL BREAK) MADDOW: Two days after President Obama`s inauguration as the 44th president of the United States, he signed an executive order. It was January 22nd, 2009. He surrounded himself with a slew of retired generals who sat at his brand new desk at the Oval Office and he signed an executive order to close the prison at Guantanamo Bay within one year -- something he had promised throughout his campaign. (BEGIN VIDEO CLIP) BARACK OBAMA, PRESIDENT OF THE UNITED STATES: This is me following through on not just the commitment I made during the campaign, but I think an understanding that dates back to our Founding Fathers that we willing to observe core standards of conducts not just when it`s easy but also when it`s hard. (END VIDEO CLIP) MADDOW: In that case, it was hard because basically from that point on, it went downhill. The president ordered then-Attorney General Eric Holder, then-Defense Secretary Robert Gates to prepare to move prisoners from Guantanamo to prison cells in the United States. Cue everybody freaking out. It never happened. And the president was publicly annoyed that Congress was blocking him from doing this thing he campaigned on doing, that John McCain his opponent campaigned on doing, his predecessor who created the mess George W. Bush had said needed to be done. The new president, Barack Obama, was obviously annoyed to be stymied in his effort to close Guantanamo but the issue really did get no further during his first term. After President Obama was re-elected in 2012, he said right away that he`d go back at it. (BEGIN VIDEO CLIP) OBAMA: I`m going to go back at this. I`ve asked my team to review everything that`s currently being done in Guantanamo, everything that we can do administratively, and I`m going to reengage with Congress to try to make the case that this is not something that`s in the best interest of the American people. (END VIDEO CLIP) MADDOW: That was at the White House news conference that marked the first 100 days of his second term. Then at the following State of the Union, he circled back to it again. (BEGIN VIDEO CLIP) OBAMA: This needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay. (END VIDEO CLIP) MADDOW: State of the Union January 2014. Despite the applause, Congress kept blocking it. So, at this point it`s been more than four years, right, that he`s been not just intending but trying to close Guantanamo. Congress is blocking him. But then in October 2014, something slightly different started happening. Reports started surfacing the Obama White House was not just coming to terms with the fact Congress was never going to relent on this issue. In October 2014 came the first reporting of the somewhat mysterious prospect that maybe the Obama White House could figure out a way to close it on their own. Forget Congress. October 2014, that was 2 weeks before the midterms. That report in "The Wall Street Journal." Then, we had the elections. Congress got more Republican. So, the prospect of doing anything through Congress got even more remote. But then, two weeks ago, it surfaced again -- tucked away at the very end of this "Washington Post" piece. Quote, "White House officials are exploring options for the unilateral closure of the prison." And even that seemed a little unbelievable, right? Who are these sources? Who`s telling the "Washington Post" this? And what could they possibly mean? But then this happened yesterday. (BEGIN VIDEO CLIP) JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: But the president has indicated a willingness to use as much of his executive authority as he can to try to take the steps that he believes are consistent with the national security interest of the United States, and that`s closing the prison at Guantanamo Bay. He does not believe that the millions of dollars that are expended every year to keep that prison open is a good use of taxpayer resources. It`s not. In fact, it`s counterproductive. And unfortunately, we have not seen cooperation from Congress in this regard. In fact, what we`ve seen is we`ve seen members of Congress repeatedly go to great lengths to try to prevent the closure of the prison at Guantanamo Bay. That`s been the source of a lot of disappointment to the president and, but it has not prevented him from continuing to push his team to try to -- to try to take, go as far as we can, to reduce the population there and ultimately get to a place where we can close that prison. (END VIDEO CLIP) MADDOW: White House Press Secretary Josh Earnest saying the president has directed his advisers to find a way to close that prison. He`s seemingly saying find way to close that prison even without Congress. President very disappointed in Congress, so he has told us to go as far as we can to get to a place where we can close that prison. So, that prospect has gone now from un-sourced trial balloon to anonymous leak to now the White House press secretary talking about it at the podium at the White House openly. Is this actually in the works? Could the president actually do this thing that he`s been trying to do since day one of his presidency? Could he do it on his own without Congress? And if so, how? Joining us now is Jonathan Hafetz. He`s a law professor at Seton Hall, visiting research scholar at Princeton. He`s represented prisoners at Guantanamo. Mr. Hafetz, thanks for joining us. JONATHAN HAFETZ, ACLU NATL. SECURITY PROJECT LAWYER: My pleasure. MADDOW: Do you know? Could the president close Guantanamo by executive action somehow? HAFETZ: He certainly could do that. He could close it within the law, but he needs to be more aggressive. So far, he`s made a lot of statements. I think he`s well-intentioned but he`s not used the authority that he has to move aggressively notwithstanding Congress. MADDOW: What kind of authority and how? What do you mean? HAFETZ: Well, I think there are a number of steps he could do at the broadest level, Congress has only restricted his authority to use Department of Defense funds. They`ve not restricted other sources of funding to close the prison and bring detainees to the United States. He could also veto the appropriations measure that restricts his authority to close Guantanamo by transferring prisoners either to the United States or to other countries. He`s threatened to do that a number of times, but -- I mean, this is it. This is the fourth quarter and time is running out. It`s time for Obama to act and follow through on what he`s promised to do. MADDOW: In terms of the nitty-gritty of how to do this, obviously, there are a number of prisoners that -- the most pressing case, at least logistically, would seem to be the prisoners who have been cleared by everybody in the U.S. government who has been asked to clear them, they`ve cleared every process possible that says they are safe to be released, but they have still not been released because they haven`t found anywhere to put them. The Congress has determined that not even those prisoners should be allowed to come to the United States. Presumably there`s some way to try to put additional diplomatic pressure to get those people sent to third countries. That could be step one. HAFETZ: Absolutely. This is the easiest case. The 56 or 57 prisoners, about half of the remaining prisoners who have been cleared by every agency within the government, could be returned to another, or found another country that they could go to simply through diplomatic pressure. I mean, with these people, it`s simple. If there`s a will, there`s a way. But I think there`s been resistance. There was resistance under Defense Secretary Gates. And unfortunately, these people should be moved out. I mean, the fact that people have been detained for year after year, who the United States acknowledges don`t present a threat to this country or its interest, is really an outrage. MADDOW: Now if those folks were moved, that would still leave about half the prisoners without a path out of there. Whether they were going to some other prison or some other country or here, whatever it was. The -- I think logistically what made the most sense before Congress got up on its hind legs on this issue was the idea those prisoners would be sent to U.S. military prisons, Brigs, for example, brigs at Charleston, South Carolina, and they would be transferred safely in custody within, staying within the Department of Defense. That is explicitly barred by statute now, right? HAFETZ: Correct. Defense Department funds. MADDOW: All right. So the president -- if the president is going to figure out some way to move people back to the United States you`re saying it has to be through a non-Defense Department path? HAFETZ: That`s one path, or veto, or simply vetoing the restrictions when they come up again. MADDOW: Yes. HAFETZ: And the other thing is, you know, the only option is not simply transferring this group of detainees to the United States. Other than the small handful of individuals who there are and should be criminal charges against, many of these detainees should be released. They`ve been held, I believe, lawlessly, for many years and I think this group of detainee, the ones who are purportedly too difficult to try, too dangerous to release, I think that`s a made up category and those individuals as a first priority should be found a way to repatriate them to their home country or another country. MADDOW: Jonathan Hafetz, law professor at Seton Hall, visiting research scholar at Princeton -- thanks. Appreciate having you here. HAFETZ: Thank you. MADDOW: If the president is working on some way to close Guantanamo without Congress giving the go-ahead, prepare for the mother of all national security battles. The really good thing about that, even if you don`t care substantively about the issue, is that we would finally be having a political fight in this country about national security again which we haven`t in quite some time. All right. We`ll be right back. Stay with us. (COMMERCIAL BREAK) (BEGIN VIDEOTAPE) SUBTITLE: This week at the TRMS production meeting, producer Nick Tuths broke a TRMS rule -- NICK TUTHS, TRMS PRODUCER: They said it was like the first time in 19 years that they couldn`t locate the balls right before kickoff. MADDOW: Say "footballs". TUTHS: Footballs. We couldn`t locate the footballs. SUBTITLE: The reason for the rule -- MADDOW: There should be a rule. It`s footballs. Stop saying balls, balls, balls, balls, balls. BILL BELICHICK, PATRIOTS COACH: Each team has the opportunity to prepare the balls. TOM BRADY, PATRIOTS QUARTERBACK: I don`t want anyone touching the balls after that. I don`t want anyone rubbing them. To me, those balls are perfect. BELICHICK: The balls. BRADY: You know, I like them at the way that I like them. Everybody has a preference. Some guys like them round and some guys like them thin. Some guys like them tacky. Some guys like them brand new. Some guys like old balls. I mean, they`re all different. MADDOW: The innuendo is, like, it`s just footballs. It`s footballs. SUBTITLE: Why that rule needs to be enforced today is coming up. (END VIDEOTAPE) (COMMERCIAL BREAK) MADDOW: No offense to their fans, but the Atlanta Falcons have had a lousy couple of years. Falcons failed to make the playoffs this season and the season before that. They won just four games and they lost 12 games. When your team is falling that short of expectations, you might expect the team, itself, to try just about anything. Falcon, however, tried something they were not allowed to try. The team got caught piping in fake crowd noise during their home games. "A", it makes everything exciting, "B", it messes with the other team`s audibles. Obviously, piping in artificial noise like that is against the NFL rules. That is a form of cheating. The league concluded in March that the Atlanta Falcons noise-gate was work of one guy on the team, the guy in the marketing department, and they concluded that nobody else but him knew about it. But for noisegate, the league fined the falcons $350,000. They lost a draft pick and the team president got suspended from a key committee on the NFL. Same day they announced they`d dock the Atlanta Falcons for cheating for the noise thing, the league took another team to task as well. Cleveland Browns manager Ray Farmer had been caught texting from his seat way up in the stadium texting down to the sidelines. Under NFL rules, that is also cheating. You cannot use cell phones or smartphones on the sidelines or in the coach`s box. The NFL fined the Cleveland Browns a quarter million dollars. They suspended the general manager for four games. So, in two cases this year the NFL ruled there had been team cheating and they handed out team punishment. Now, we have a new case which involves my own beloved team, the New England Patriots. The allegation here is that the Patriots intentionally let air out of footballs because Patriots quarterback Tom Brady finds a flatter football easier to grip -- specifically the Patriots were accused of doing it when they won the AFC championship game in January. Tom Brady denied the rumors after that game. After that game the Patriots then did go on to win the Super Bowl. Well, yesterday, the NFL released the official NFL report on deflategate. The report doesn`t draw firm conclusions but it does suggest that the Patriots did it. Quote, "It`s more probable than not that a locker room attendant and equipment assistant participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee." The report continues, quote, "It is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of letting air out of the footballs." The findings include text messages between one staffer who calls himself "the deflator" and another guy who talks about Tom being unhappy with fully inflated footballs. So, the Patriots owner blasted the report, but he has said it would be futile to fight the league over their findings in this incident. This morning, Tom Brady`s agents blasted the report saying it omitted key facts, including, he said, much of Tom Brady`s testimony for the people who did the investigation. But tonight for the first time we got a chance to hear what Tom Brady himself had to say about it. He had been scheduled to appear at Salem State University before the report came out. He still made the appearance. The format at that event at Salem Sate called for him to be interviewed by sportscaster Jim Gray. Jim Gray did try to get Tom Brady to talk about it. He tried. He tried gamely. (BEGIN VIDEO CLIP) BRADY: It`s only been 30 hours, so I haven`t had much time to digest it fully. But when I do, I`ll be sure to let you know how I feel about it. (CHEERS) BRADY: And everybody else. JIM GRAY, SPORTSCASTER: Are you that slow a reader? (LAUGHTER) BRADY: Well, my athletic career is better than my academic career. So, usually, I`m used to reading Xs and Os. This is a little longer. (END VIDEO CLIP) MADDOW: That was it. Tom Brady went on to say that the Super Bowl win was not tainted. He said absolutely not when he was asked about that. But that was it. That`s how it went for the Patriots quarterback in front of a very friendly hometown crowd addressing these riveting allegations. The question now is what the league is going to do about it. Watch this space. (COMMERCIAL BREAK) MADDOW: On this show, we`re known for abusing our props budget. Sometimes it`s big props that I get to unfurl and wave around. Sometimes it`s a prop that I have to wave around on top of my head. Occasionally, it`s a prop that stares at me like a creep. I love props. And we have a prop tonight that may top them all and that could be a live TV disaster and it`s dangerous. That`s coming up next. Don`t go anywhere. (COMMERCIAL BREAK) MADDOW: Prop time. Pokey prop time. OK. Today we commissioned the creation of an object in order to explain what`s about to happen to our national technology that is supposed to keep you off the White House lawn. That national technology is, obviously, the White House fence. It`s approximately 7 1/2 feet tall, comprised of evenly spaced black iron bars with little spear like looking finials across the top. The fence runs along the north and south lawns of the White House, which is where tourists and visitors can walk by and snap photos. Physically, the White House fence does look imposing. It`s pretty. It`s imposing unless you are, say, a drone, which was flown dozens of feet over that fence in the middle of the night, only to land somewhere under a tree on the south lawn of the White House. The fence is also no match for some of our nation`s toddlers, who are not at all worried about those spheres at the top of the fence. They instead plan to climb on the ground through the fence bars, thank you very much, happens all the time. But the bigger problem at least when it comes to the White House fence are people like this guy who managed to jump the 7 1/2 foot tall fence last September, or this guy who was carrying knife as he jumps the fence later that month and then was able to run across the north lawn of the White House and through the front door and well into the East Room before someone finally stopped him. Just a few days ago, another person was arrested for climbing the White House fence again. In an effort to prevent people from getting too close to the fence or from trying to climb it, last fall, the Secret Service put up temporary barriers which are basically like bike racks. The National Park Service maintains the fence. They and the Secret Service has been reviewing design concepts for a whole new fence, the bike rack fake solution. They`ve been reviewing designs. The designs are expected to be approved this summer. The whole new fence is not expected to be installed until next year. But in the meantime, until they get the whole new one, the agencies have decided to come up with yet another temporary solution besides just the bike rack for how we stop people from jumping the fence. And the solution is new detachable spikes. OK. So this is our unofficial mock-up of the White House fence. We have the spears at the top which are kind of imposing. So, in this setting, you`re on the sidewalk and I`m the White House. What the Secret Service is planning to do until they get their brand new state of the art giant fence, to further protect the White House, in this case, they`ve got clamp on detachable pencil point steel spikes that go like this, at an angle. They fit is a slight 5 degrees angle just like that. Do you feel deterred? This is the proposal the National Park Service submitted to the National Capital Planning Commission which has to approve this kind of add on, even a temporary addition. They did that little drawing. But this is the mock-up. Aha, at least it`s our mock-up. Today, the temporary anti-climb feature was approved so the Park Service will start affixing doodads just like this one to the White House fence in the next few weeks. They`re removable, but they`re supposed to sit there at a wacky angle and keep you from trying to climb it. If they need help affixing them, I`ve been practicing all day. I`m good at it. Oh, really. That does it for us tonight. We`ll see you again tomorrow. Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL." Good evening, Lawrence. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END