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The Rachel Maddow Show, Transcript 11/10/15

Guests: Silas Lee, Gregory Craig

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thank you. CHRIS HAYES, "ALL IN" HOST: You bet. MADDOW: And thanks to you at home for joining us this hour. In 2010, a one-term United States senator was up for re-election. And it was a race where nobody could really predict the outcome. It`s because, on the one hand, this was a Republican senator and he represented a red state -- a really red state -- and it was a midterm election year, not a presidential year. Everybody knew 2010 would be a really Republican year. So, all of those very basic fundamentals would indicate that should have been an easy seat for an incumbent Republican senator to hold onto in 2010. On the other hand, though, this particular incumbent Republican senator had an unusual problem. Specifically, he had a hooker problem. Because the senator was a conservative -- socially conservative, family values politician, he had campaigned on the basis of his picturesque, moral family life. He put his wife and his kids in the ads. He as a politician had inveighed against other people`s family arrangements as basically morally inferior to this picture perfect family that he had. But that senator was also a client of the D.C. madam. He was found to have repeatedly turned up in the D.C. madam`s phone records while he had been serving in Congress in the mid-2000s. So, when that scandal came to light about Louisiana Senator David Vitter, it complicated the matter, right? Nobody really knew how Louisiana voters were going to react to him the next time he was up for re-election, even if he was a Republican running for re-election in a red state. His opponent that year in 2010 was a conservative Democrat who was really well known across the state. And Charlie Melancon didn`t make the hooker problem the centerpiece of the campaign against Vitter, but it wasn`t something he was shy about either. Watch. (BEGIN VIDEO CLIP) AD NARRATOR: David Vitter won election to the United States Senate as a proud family values politician. But under the surface, Vitter was battling his demons. A former French Quarter prostitute gave an interview exposing details about her sexual relationship with Vitter. WENDY CORTEZ: He went in, took a shower. Spoke very little to me at first. He did his thing. He wasn`t there 15, 20 minutes at that. It was $300. RETIRED SCHOOL TEACHER: For me, it`s not about hookers or cheating on his wife. The man broke the law. There ought to be consequences for that. (END VIDEO CLIP) MADDOW: So, this was a Charlie Melancon ad against David Vitter when Melancon was running against Vitter in 2010. It`s kind of genius, right? They made it out like it`s kind of a TV show. They put supposed Louisiana voters in silhouette to protect them, implying that David Vitter might come get them if these voters are seen as speaking out against him. In this shot, we froze it here so you can see that they made sure to get the guy`s gun case in the shot with him in silhouette. So, you can see the guy criticizing Vitter for the hookers thing, cheating on his wife and breaking the law thing just happens to be a down home Louisiana gun owner who thinks all of these things. So, Charlie Melancon ran a good campaign after David Vitter in 2010 after this D.C. madam scandal had exposed David Vitter as a family values hypocrite. But still, Charlie Melancon lost to David Vitter really badly, lost to him by almost 20 points. Well, now, for the first time since then, David Vitter is again going before Louisiana voters. But this time, he`s not running for his U.S. Senate seat. This time, he`s running for Louisiana governor. Because Louisiana does things differently, the election for Louisiana governor is going to happen next weekend. OK, Louisiana. Whatever. The election for governor is next Saturday which is weird. That`s how they do it. Tonight, it turns out was the gubernatorial debate in Louisiana, between Vitter and the Democrat he is running against, the man named John Bel Edwards. You know, I know it`s debate night for other reasons tonight in America. But this Louisiana governor thing, this is the kind of race that we can see becoming political legend before our own eyes. This campaign has been so bare-knuckle, so melodramatic, it had so many twists and turns already that I have found the race to be legitimately distracting from even really big other political stories country like, for example, the 2016 race. I mean, in this Louisiana governors` race, first, there is the matter of the guy hiding behind the air conditioner unit in somebody`s backyard in Metairie, Louisiana. You may have heard about this. It was a day before the primary election in this governor`s race just a couple weeks ago. It`s October 23. And four people, including a local sheriff, they were meeting at this local cafe in Metairie, Louisiana, presumably they were talking politics. They are all politically active guys, Democrats and Republicans. It was a mix. And according to "The New Orleans Advocate", the sheriff at this gathering at the cafe noticed as he was there talking with these guys that somebody was in the cafe with them surreptitiously videotaping their meeting. The sheriff confronted the guy who was making the videotape. The guy apparently ran out of the cafe. He was pursued by sheriff`s deputies. They ran through backyards in the neighborhood. It was this giant foot chase. They eventually caught the guy cowering behind somebody`s air- conditioning unit a backyard and they arrested the guy. The guy turned out to be a private investigator from Texas who was hired by the David Vitter for governor campaign to -- I don`t know. He was a private investigator working for the David Vitter campaign. We don`t know what he was doing. We don`t know exactly what he was hired to do. But what he ended up doing was something that involved videotaping conversations, surreptitiously among other local politicos and a sheriff in a Louisiana restaurant. That was the day before the primary. In that primary, David Vitter and John Bel Edwards were the top two. They were picked to be the two candidates for the runoff election which will happen next week. Well, today, the day of the first debate between David Vitter and John Bel Edward, that same sheriff who gave chase to the guy through the backyards and caught the guy by the air conditioning unit, that same sheriff from the cafe today -- he picked today, day of the debate, to give a follow up press conference to update the citizens of Louisiana on what happened with that private investigator hired by David Vitter who the sheriff and his deputies chased through a bunch of backyards and found cowering behind an air conditioning unit in Metairie, after Vitter apparently sent him to videotape the sheriff in the conversation. According to the sheriff today, his follow-up press conference, the young man, the private investigator from Texas, is being charged with this case, being charged with criminal mischief. The sheriff also says he`s working with the FBI now on the political shenanigans he thinks are implied by this case that may go beyond just criminal mischief. The sheriff also let reporters know today in Louisiana when they caught the guy hiding behind the air conditioning unit in that person`s backyard, according to the sheriff, one of the other videos this private investigator had on the camera was an interview with someone that was apparently designed to discredit the woman who had come forward after David Vitter`s D.C. madam scandal to say that she was the prostitute that David Vitter had regularly hired not in Washington, D.C., but back home in New Orleans, at a price of $300 a pop. I`m sorry. I just said pop. (BEGIN VIDEO CLIP) NEWELL NORMAND, JEFFERSON PARISH SHERIFF: One of the other deleted files we were able to restore was a conversation that Mr. Wes Bearden (ph) had with a potential witness in an attempt to discredit the story of Wendy Cortez. It is obvious that that individual did not know she and he were being recorded, both video and audio with this device. They met at an IHOP in Hammond. Throughout this particular video, the investigators are aggressively suggesting what the woman should say in her affidavit. (END VIDEO CLIP) MADDOW: So, that was this afternoon. There`s that going on. The guy with the surreptitious taping and the foot chase through the backyards, hiding behind the air-conditioning and then the other thing that`s on his camera and now calling in the FBI. There is also the Bobby Jindal factor. Bobby Jindal is not running for re-election as Louisiana governor because he can`t, because of term limits. Instead, Bobby Jindal is, of course, running a presidential campaign, which will not end well. But one of the people who also ran in the primary this year to try to succeed Bobby Jindal as Louisiana governor was Bobby Jindal`s lieutenant governor? He is also a Republican. He`s also elected in the same statewide race, same statewide slate that Bobby Jindal was elected. But after the primary, though, this year when Louisiana`s Republican lieutenant governor learned he would not make the cut, he would not be making the run-off election, he wouldn`t be in the general election to try to become Louisiana`s next governor, after that primary Louisiana`s Republican governor shocked not only the political establishment in his state, he shocked the Republican Party by coming out and making an endorsement for governor of Louisiana. He decided that if David Vitter was the guy running as the Republican candidate for governor, forget that he`s the Republican lieutenant governor of the state, he was going to endorse the Democrat. (BEGIN VIDEO CLIP) LT. GOV. JAY DARDENNE (R), LOUISIANA: When are we as Louisianans going to stop tolerating the embarrassment that too many of our elected officials have heaped upon the state. (END VIDEO CLIP) MADDOW: The lieutenant Republican governor of Louisiana endorsing the Democratic candidate for governor over David Vitter because he finds Vitter to be an embarrassment to the state of Louisiana. And as for that Democrat he`s the other amazing wildcard in the race, because yes -- I mean, David Vitter`s political opponents haven`t been shy about mentioning his prostitution issues. But there`s quite some distance between not being shy about the issue and what happened this year from John Bel Edwards, which is that John Bel Edward has run an ad like this. (BEGIN VIDEO CLIP) AD NARRATOR: The choice for governor couldn`t be more clear. John Bel Edwards, who answered our country`s call and served as a Ranger in the 82nd Airborne Division. Or David Vitter, who answered a prostitute`s call minutes after he skipped a vote honoring 28 soldiers who gave their lives in defense of our freedoms. David Vitter chose prostitutes over patriots. Now, the choice is yours. (END VIDEO CLIP) MADDOW: After Democratic candidate for Louisiana governor, John Bel Edwards, ran that ad this weekend, his campaign told the astonished political press that if they liked the tone of that ad, quote, "there`s more to come." Well, tonight, in the gubernatorial debate between John Bel Edwards and David Vitter, we probably should have known to expect fireworks because of what happened leading up to tonight. We should have known to expect it when we found that the candidates were being told by the moderators tonight to prepare questions to ask each other. They would be questioning each other directly at this debate. I mean, we knew he was going to be interesting because the governor`s race is nothing if not interesting. But I`m quite sure we didn`t know it would be like this. This is just tonight. This has just happened moments ago on the subject of that ad we just showed you. (BEGIN VIDEO CLIP) SEN. DAVID VITTER (R), LOUISIANA: You act holier than thou, we don`t do negative campaigning. You have the most vicious ad right now that veterans have been offended by and asked you to take down. You are not living by the honor code, John Bel. You are living by the lawyers code, trying to parse words and create technicalities. MODERATOR: We need a question here. JOHN BEL EDWARDS (D), LOUISIANA GUBERNATORIAL CANDIDATE: No, sir. The fact of the matter is, my campaign has not paid for a tracker or a private investigator. I haven`t seen footage of you anywhere from a tracker, not part of my campaign. It just absolutely isn`t. With respect to the negative ad, if it`s a low blow, it`s only because that`s where you live, Senator. It`s 100 percent truthful. The fact of the matter is you didn`t say it was untrue. You want me to take it down because you don`t like it. I understand that you don`t like it. It hits you where you live. VITTER: I`m not talking about me saying anything, John Bel, I`m talking about what veterans have said. EDWARDS: No, hundreds of veterans have contacted me, and they wanted to know that you were missing out on your public performance of your duties in Congress in order to engage in those extracurricular activities you don`t want to admit to. MODERATOR: All right. So let`s -- VITTER: John Bel, again, you`re holier than thou -- EDWARDS: I`m not holier than thou -- (CROSSTALK) VITTER: The state Democratic Party is doing that in your behalf. EDWARDS: Listen, nobody is doing anything for me. (CROSSTALK) EDWARDS: You said the trial lawyers were working for Jay Darden (ph). Now, it benefits you. They are working for me, I guess. You will say anything at any time. You are unconstrained by the truth. (CROSSTALK) MODERATOR: Wait, gentlemen. EDWARDS: And with respect to the honor code, Senator, the last part is, I will not tolerate those who do. You are a liar. You are a liar and you are a cheater. (CROSSTALK) EDWARDS: And I don`t tolerate that. VITTER: If you don`t agree with behavior why are you tolerating and benefitting for their -- EDWARDS: I`m not benefitting from anything. I haven`t looked at it. I haven`t used it. (END VIDEO CLIP) MADDOW: You are a liar and a cheater and I will not tolerate you. With respect to the negative ad, if it is a low blow that`s because that`s where you live, Senator. See, sometimes debates can be fun. Joining us now Dr. Silas Lee, professor of public policy at Xavier University of Louisiana. He`s also political analyst for WDSU-TV. Dr. Lee, thank you very much for being with us this evening. I appreciate your time tonight. DR. SILAS LEE, XAVIER UNIVERSITY PUBLIC POLICY PROFESSOR: Thank you very much. MADDOW: I have to ask your reaction to what you saw and heard at tonight`s debate, looking at this from a national perspective, looking at this from the outside in. This seems like a lot of fur flying in that governor`s race. LEE: Well, if you want a political reality show in real time, you have it. And this is what you have. The last part of that debate, the last five to 10 minutes, that`s where you saw the most animation from the candidates, especially you saw John Bel on the attack and David Vitter trying to deflect what he was attacking him on. And certainly, Vitter is uncomfortable with this ad being played and the fact that it is a topic of discussion on the minds of voters. He tries to move the attention of voters away from that ad and he tries John Bel appear to be an Obama clone. And John Bel is trying to make David Vitter appear to be a clone of Bobby Jindal. The challenge for David Vitter is that he`s running for governor of Louisiana and voters want to know what you are going to do to address the issue facing the state. MADDOW: In terms of the fight that we just heard here, when David Vitter was talking about veterans rejecting the ad about his prostitution scandal, I think what he`s talking about an objection that was raised to a background image showing gravestones at Arlington used as an illustration that the vote that David Vitter missed which he`s been criticized for in the ad at the time he was on the phone records of the D.C. madam, that vote concerned honoring U.S. soldiers who were killed in action. Now, as far as I understand it, John Bel Edwards has announced he will recut the ad the same way, but taking that image of the gravestones out of the ad. Is that what the exchange was about there? LEE: Well, it`s a little bit deeper than that. Part of the exchange was they didn`t mention it. But someone did write a letter, the mother of someone who died in combat, did write a letter complaining about the imagery, the use of the gravestones in the background. But what you heard in the exchange was the fact that John Bel Edwards is bringing this emotional topic up that Vitter does not want to discuss, because every time that scandal is mentioned, it reminds voters of a period in his life that he would like to have erased from his political biography. Unfortunately for David Vitter is an issue that constantly gives John Bel Edwards a platform to attack David Vitter on. He`s very uncomfortable about this. And he would like to move attention away from this as much as possible and keep it away from the attention of voters. The problem is, he`s not going to be able to. MADDOW: Dr. Silas Lee of Xavier University of Louisiana, thank you for your perspective. I know the race is all the more impressive as you get closer and closer to it. It`s nice to have you with us tonight to talk about it. LEE: All right. Thank you. MADDOW: All right. We`ve got much more ahead tonight on this very, very busy news night. Stay with us. (COMMERCIAL BREAK) MADDOW: Here`s a little heads up for something important that`s about to drop just before midnight tonight. If you are a night owl, I can tell you what you`ll be hitting refresh on your browser about come 11:59 p.m. tonight. It concerns New Jersey governor and presidential candidate Chris Christie. Today was an all-important court imposed deadline for two officials from his administration in New Jersey -- the two officials who have been criminally charged in the bridgegate scandal. Today was the deadline for them to file their -- I should say, there was three officials charged. These are two who have pled not guilty and who are fighting their case. Today was the deadline for these two Chris Christie officials to file their first defense motions in federal court, explaining how they are going to fight their case and try to clear their names. Now, we have word from their attorneys and reporters who are closely following the case that they`re going to stick very strictly to today`s deadline. And that what we are expecting is that the lawyers are probably going to wait for the last possible second to file those defense motions still within today`s deadline. The deadline isn`t like close of business. The deadline is midnight to midnight. So, we are expecting 11:59:59 tonight those defense filings are going to get posted. So, keep an eye out for that. "The Wall Street Journal" reports that the defendants, Bill Baroni and Bridget Ann Kelly, they are intending to put up a real fight. What these filings should say tonight and they should be posted publically, what they should say should be that contours of their strategy. What they plan to do to clear their names. We should get the first indication to save their own skins will extend to them trying to blame other people in the Christie administration. It should give us the first insight into whether potentially the governor himself is going to be drawn into these two criminal cases concerning his administration. So, again, we don`t know how this will play out over time. And this is still early days for those criminal cases. They are expected to go to trial this spring. But again, tonight over the next couple of hours it`s tick-tock for these lawyers as they try to make their first efforts to save their clients from time in federal prison. These filings should drop right before midnight tonight. It`s the start of a very high stakes process. Watch this space. (COMMERCIAL BREAK) MADDOW: Today is 11/10. That means tomorrow is 11/11, which means tomorrow is Veterans Day. And the thing to remember about Veterans Day is that it is a happy occasion. Don`t conflate Veterans Day and Memorial Day which is the day we set aside to remember service members who are killed in serving their country. Tomorrow is not Memorial Day. Tomorrow is a different thing. Tomorrow is the day to say "Happy Veterans Day" to any veterans in your life, to say thank you to any veterans in your life. Tomorrow is a celebratory day. It`s a day that we say thank you and that we celebrate the contribution of all Americans who served in the armed forces. Veterans Day is also the occasion on which political candidates traditionally feel obliged to say what they think the country ought to do about veterans and about keeping the promises that we make to our veterans. And so, last night, heading into toward Veterans Day, we got Martin O`Malley`s policy paper on veterans` issues. Governor O`Malley says he wants to end veteran unemployment by 2020. He says he wants a new national plan to fight suicide among veterans, including dramatically increasing the treatment capacity for mental health issues within the V.A. Then, today, we got a new plan from Hillary Clinton on veterans` issues. A robust plan new plan from her to start tackling systemic problems at the V.A. within her first 30 days in office as president. She`s talking about a zero tolerance policy for delays in care and abuses of the V.A. system. And this year, the urgency of the Democratic candidates putting out their plans on veterans is, yes, because of the ongoing troubles at the V.A. and, of course, it`s because Veterans Day is tomorrow. But in real life, consequences of partisan politics, it`s also particularly urgent for Democrats to do it this year, right now, because the Republican candidates` plan for the V.A. this year is to get rid of the V.A., to privatize the V.A., or big swathes of the V.A., so veterans have to go through private for-profit insurance companies instead of getting their care from the Veterans Administration. That`s this year`s newly fashionable Republican political plan for veterans. It`s espoused by their presidential candidates, from Rand Paul to Ben Carson to Jeb Bush. So, that`s the other urgency on this issue right now, is the political urgency impelled by the Republicans wanting to can the V.A. I mean, if you want a partisan divide in politics right now, here`s one. (BEGIN VIDEO CLIP) HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: I will fight as long and hard as it takes to prevent Republicans from privatizing it as part of a misguided ideological crusade. (APPLAUSE) Now, we`ve seen how they try to seize on anything they can do to advance this goal of theirs which will throw our vets into the private insurance market. Now, I believe in giving that`s more choice in when and how you receive care. And I think there should be more partnerships between the V.A. and private hospitals and community health care providers. But we cannot and I will not put our vets at the mercy of insurance companies without any care coordination or leave them to fend for themselves with health care providers who have no expertise in the unique challenges that are facing our veterans. Our young veterans, our aging veterans, everybody has specific unique challenges that I think we`ve got to get the V.A. better equipped and ready to address. Now -- (APPLAUSE) Privatization is a betrayal, plain and simple. And I`m not going to let it happen. (END VIDEO CLIP) MADDOW: Privatization is a betrayal. Democratic presidential candidate Hillary Clinton in Derry, New Hampshire, today. If you want to know where this issue is going in presidential politics, with this incredibly sharp divide between Democrats and Republicans on this issue -- look at this out today. This is the Vet Voice Foundation releasing a new poll of veterans today. It`s interesting. This isn`t a partisan poll. It was conducted by both a Democratic pollster and a Republican pollster working together to poll veterans. Quote, "The survey reveals that veterans regardless of age, party or branch of the military, veterans oppose privatization of V.A. hospital programs and services." The percentage of veterans who oppose privatize is huge, 64 percent; 54 percent of veterans say they strongly oppose privatization. And vets overwhelming see this as a voting issue, 57 percent of veterans say they would be less likely to vote for a candidate if that candidate supported privatizing the V.A. Almost all the Republican presidential candidates want to privatize the V.A. They are all pledging that they will do it. While 57 percent of American veterans say that would be offensive enough to them that it would sway their vote for president. So, yes. Happy Veterans Day. Here`s Hillary Clinton today saying she won`t let it happen, that privatization would be a betrayal, she will not let the Republicans privatize the V.A. Republican candidates are basically all on board with doing that. Republican candidates looking at these polling results from what American veterans think about that -- I think now, it`s your move. (COMMERCIAL BREAK) MADDOW: There have been protests like this in the past, but this was by far the largest, started at dawn today, hundreds of cities across the country -- hundreds. People who work at fast food restaurants went on strike today demanding a $15 an hour minimum wage. This was Kansas City, Missouri, this morning. This was Los Angeles, which recently approved a plan to raise the city-wide L.A. minimum wage to $15 by 2020. This was New York City. New York state is also planning to raise the minimum wage to $15 over the next few years. Today, New York Governor Andrew Cuomo announced that he will also use his executive authority to raise the minimum wage for state employees statewide to $15 an hour. That announcement just made today. But these were nationwide protests today, just a huge swath of the country. This was Jackson, Mississippi, today. This was Dorchester, Massachusetts. This was St. Petersburg, Florida. Just about every corner of the country saw protests today. In Houston, protesters marched into a McDonald`s restaurant. They held a rally inside the McDonald`s chanting "Yes, we can." In many places, including Minneapolis, the marches today ended at the local city hall to try to pressure local and municipal officials. In D.C., outside the U.S. capitol, Democratic presidential candidate Bernie Sanders joined the demonstrators today. He made an appearance at a rain-soaked rally in D.C. And then, this was Milwaukee, where the Republican presidential candidates are tonight holding their fourth debate. The protesters held another demonstration tonight right outside the theater where the debate was taking place. I think the protesters are banking on the issue of the minimum wage coming up inside the debate hall. But even if it doesn`t, there`s going to be a lot more around the country in rallies large and small. Organizers of the protests say today was a kickoff of what they expect to be a year of activism on this issue right up to the run for the presidential elections. We`ll be right back. (COMMERCIAL BREAK) MADDOW: If you go to the Republican Party`s home page right now, the first thing on their home pager tonight is this, we made the mainstream media use stop Hillary as a password to get Wi-Fi tonight. The National Republican Party did in fact set "Stop Hillary" as the password for the Wi- Fi on site at tonight`s Republican debate. And they didn`t just do that as a stunt. It`s the thing they are most excited about. They are more excited about that than anything else right now. They are cackling over how awesome that was at the top of right now, the Republican Party`s home page. Neener, neener. If you scroll down a bit, though, you can see that the Republican Party`s Hillary Clinton fixation is not confined to just stunts involving passwords. The Republican Party has also launched anti-Hillary Clinton ads this week in seven states. The ad specifically protests against what they are now calling her plan to close Guantanamo, the Obama Clinton plan. So, now, Republicans not only want to impeach Hillary Clinton on her first day in office as president. They also want to stop her from using her power as a presidential candidate to close down Guantanamo. Presidential candidates do not have the power to close down Guantanamo. If they did, it would have closed in 2008 when both the John McCain-Sarah Palin ticket said they wanted it closed and the Barack Obama/Joe Biden ticket wanted it closed as well. It turns out presidential candidates can`t close Guantanamo. And there`s an open question as to whether presidents can close Guantanamo either. I mean, this was President Obama on his second day in office signing an executive order to ban torture and an executive order to review indefinite detentions and an executive order to close the prison at Guantanamo within a year. That was day two in office in January 2009. There was pretty much political consensus at the time that Guantanamo needed to be closed. The new president wanted Guantanamo closed. The Republican candidate he just had beaten said that Guantanamo had to be closed. Even President George W. Bush said Guantanamo should be closed and he was the one who opened it. But no dice. It`s been almost seven solid years since that executive order was signed and Guantanamo is still open. And now, the Defense Department is about to release their Pentagon plan for how Guantanamo could be closed. That plan is due any day now. We keep being told it`s going to come out this week. It is expected to be released to the public, as well as to the Congress and the White House. And so, we see Republicans making this a 2016 issue. They`re making this into a Hillary Clinton issue. Don`t elect Hillary Clinton president because she`ll close Guantanamo. But what if after all this time, President Obama closed Guantanamo. What if he got it done? What if he really could do it before the end of his presidency so it didn`t become the first item on the to-do list of either President Hillary Clinton or whoever the Republican might be who could beat her. Well, President Obama`s former White House counsel says President Obama has the option to close Guantanamo during his own presidency, writing in "The Washington Post" several days ago, the determination on where to hold detainee s is a tactical judgment at the very core of the president`s role as commander in chief. The question here is not whether the president can take the nation to war or hold detainees without congressional authorization. The question is whether Congress can tell the president where military detainees must be held. The answer is an emphatic no. One need not accept a particularly broad view of executive authority to see that the restrictions Congress has imposed on the president are unconstitutional. Congress tried to force the president to maintain a specific military detention facility for specific detainees that in his misjudgment is harmful to U.S. national security and far too costly. That is no way to conduct a war and the Constitution doesn`t permit it. The president has attempted to work with Congress to eliminate the detainee transfer restrictions. From a practical standpoint, the constructive involvement of Congress would be helpful but the president doesn`t need Congress` authorization to act. If Congress is unable or unwilling to work with him, President Obama should use his exclusive authority as commander in chief to shutter this notorious facility and end this blight on American values and national security." And don`t take it from me, liberal blowhard on TV. Take it from former White House counsel Greg Craig, writing in "The Washington Post", alongside with Cliff Sloan who`s one of the people who President Obama put in charge of trying to close Guantanamo a couple of years ago. Congress does keep passing legislation to try to block President Obama from closing Guantanamo. They did so again most recently today. But the president`s former White House counsel says what Congress is doing every time they pass one of those restrictions, it`s meaningless. President Obama can`t constitutionally ignore what Congress is doing. He can close Guantanamo whenever he wants. If former White House counsel Greg Craig is right or if the White House believes he`s right, then maybe President Obama will be able to keep that day two of his presidency promise after all. And, of course, the stop Hillary industry will have to find something else to blame on her that she frankly has nothing to do with. Joining us now Greg Craig, President Obama`s first White House counsel. Mr. Craig, thank you very much for your time. It`s nice to have you here. GREGORY CRAIG, FORMER WHITE HOUSE COUNSEL: Happy to be here, Rachel. MADDOW: So, the Congress keeps passing restrictions including the one that`s passed today. They have changed over time in the way they have worded these restrictions and what they have targeted in trying to constrain the president. Do you believe that any constraint by Congress on this issue is unconstitutional by definition? CRAIG: I do. There are two parts to the argument. One is the powers of the commander in chief. Then, the other is the separation of powers that Congress has no business intervening in the conduct of a war. So, let me address the first part. Article Two gives the president of the United States the power to be the commander in chief of the United States military. This power is at its height making dispositions of soldiers, strategy and tactics, assigning equipment. It`s at its height in wartime. And we are formally and legally at war with al Qaeda and al Qaeda affiliates. So, the president right now is a wartime commander in chief and we believe in the core exercise of his power. He has the ability to take a detainee from one facility and if he believes it`s in the interest of the nation and advances the war strategy, he can move the detainee to another military facility. We think he has the power to do it unilaterally. That`s sort of the first part of the argument. The second part of the argument is when the Congress comes in and says, Mr. President, not only are we going to tell you, you can`t make a decision as to where detainees should go, but we`re going to tell you where to put them and keep them there, we think that`s an unconstitutional restriction on the powers of the president as commander-in-chief, and that most courts, all courts would find it such. MADDOW: Do you believe this matter is something the administration should take to court, or do you think this is something that the president should just unilaterally defy, let Congress or somebody else sue him over it and then have the court fight thereafter. CRAIG: No, this is not something the president takes to court. I think he should do what he`s trying to do and has tried to do for seven years, which is the preferable way, which is to work with Congress and try to get an agreement about how this is going to happen. There`s been a consensus for a long time. And there`s only partisan politics gotten in the way. You pointed it out in the run-up, that there`s been a consensus that it would be in our national interest and we`d save a whole lot of money if we closed Guantanamo. So, I think it`s not a matter of the administration going to court. I think the administration exhausts all efforts to work with Congress to have Congress assist in the closing of Guantanamo and to bring the detainees -- only 59 by my count have to be brought to the United States -- and that would close Guantanamo. If that doesn`t work, he should exercise the constitutional authority that he`s got and do it on his own. MADDOW: In terms of the political forecasting that I feel inclined to do here, even though I probably shouldn`t, I have to ask you a question you probably won`t answer. CRAIG: I`m a just a lawyer, Rachel. I don`t do politics. MADDOW: But you know a lot of people who do. I have to ask if the White House agrees with you on this. If you are -- I know you`re not White House counsel anymore. Is this something that you are advocating that the White House should believe or do you think that the Obama administration sees it this way, too? CRAIG: It`s not a matter of advocating. I think most constitutional lawyers would look at this believe that this is a core authority the president has within the commander in chief section of the Constitution. So, I`m assuming that, you know, in theory and legality and constitutional history, the White House agrees with me. There is a little chunk of constitutional history that`s actually interesting, because back in the debates of the Constitutional Convention, James Madison took notes of what was debated. And there was an original formulation that Congress could make war. And they changed that. They said Congress can declare war. Everybody agreed that when it came to the direction of war -- and I`m not quoting Hamilton from the Federalist Paper. When it came to the direction of war, the exercise of power demanded the unity of one hand. And that is important about a commander in chief. He is the unitary commander and clearly has the ability to do this. I have not -- I can`t speak for what the White House believes on the legality or constitutionality of it. I think it`s a very simple, straightforward and quite attractive theory. MADDOW: Greg Craig, former White House counsel who I don`t believe is speaking for anybody else when he makes these arguments -- I have to say, sir. CRAIG: That`s correct. MADDOW: But I do think that if and when the president makes a decision to close this thing, a lot of what we are going to hear from him is what you have laid out as this case. Thank you for helping us understand it tonight. I appreciate you being here. CRAIG: Thank you, Rachel. MADDOW: Thank you. We`ll be right back. Stay with us. (COMMERCIAL BREAK) MADDOW: After President Obama announced last week that he would not approve the building of the Keystone pipeline, "The Onion" ran a great satirical piece about how the Republican politicians were flooding into the Dakotas, pipe wrenches in hand, to go try to build the darn things themselves. Mitch McDonnell, the pipeline welder. Well, along those lines, but in real life, we should now give a special tip of the hat to Republicans in the great state of Arizona. Arizona Republicans decided in 2011 that they would build their own border fence. They would build their own wall on the border between Arizona and Mexico with private do nations from concerned citizens. They used this official "build the private border fence" Web site and said they would raise $50 million and put the whole darn thing up themselves. Well, they ended up raising $194,323 and now, I can happily inform you that the way this story ends is that they`re giving up. It turns out asking people to pay for a border wall themselves makes a border wall not very popular. We`ll be right back. (COMMERCIAL BREAK) MADDOW: Tonight, as Republicans gather for presidential debate numero quatro, a debate being held on the eve of Veterans Day, there`s a true and awkward fact that there will be exactly zero veterans on the debate stage tonight in Milwaukee. One super PAC supporting Republican Senator Lindsey Graham for president released this ad ahead of tonight`s debate saying that, quote, "the only veteran in the field has been silenced." Lindsey Graham not only not on the main stage tonight, but not at the kid`s table either. He wasn`t even invited. Now, to be fair, I should also mention that my boyfriend Jim Gilmore is also a U.S. Army veteran, but Jim Gilmore never gets invited to any debates anymore, so nobody much misses him when he`s gone. That said, if Senator Lindsey Graham or Governor Jim Gilmore wants another idea of how to get even, how to get heard, how to get his voice out there, even if the Republican Party won`t let you debate, there`s something else that can be done. It requires a little bit of gamesmanship and a little tiny bit of lawyering, but it could be employed and it would work. The trick is, the time is ticking. They`ve got to act very, very quickly. And that story is next. (COMMERCIAL BREAK) MADDOW: For a while in the 2004 race for president, believe it or not, Senator Joe Lieberman looked like he would be the Democratic candidate to beat. He proclaimed Joe-mentum, and so it was. In the end, Joe-mentum fettered out. By the time the early primaries were under way, the Joe Lieberman campaign was struggling so badly, they started pulling in the lawyers to look for that one neat trick that might get him some campaign attention. And that`s how in 2004, the Joe Lieberman campaign went down in the annals of campaign history for using a little- known federal rule to get their candidate significant screen time for one of the worst broadcasts in the history of political broadcasts. They forced local broadcasters to show tape of Joe Lieberman talking about taxes at a town hall event. His campaign found a provision in campaign law that allowed for this taped Lieberman town hall to be shown in certain television markets throughout the country, even though those stations didn`t want to show it. That rule that the Lieberman campaign took advantage of in 2004 is now potentially becoming relevant again, more than a decade later in this year`s race for president. When Hillary Clinton made a cameo on "Saturday Night Live" as Val the bartender recently, you might remember, it triggered something called the Equal Time Rule. The rule says that if a broadcast station gives a candidate air time outside of a newscast or an interview, other candidates in that same race can file claims with the FCC for their equal time on the air. After Hillary Clinton`s appearance on SNL, candidate Larry Lessig filed an equal time claim with NBC affiliates, because she appeared in three minutes and 12 seconds in market where she was running for president, Larry Lessig, too, wanted three minutes and 12 seconds of air time on those broadcast networks. Now, we don`t know if he ultimately would have gotten what he asked for because he dropped out of the race before those claims should be settled. But now, of course, more claims could be coming down the pike, this time on the Republican side, because this weekend, Donald Trump hosted "Saturday Night Live" and NBC stations have already posted their equal time notice, explaining that this Republican candidate appeared for a total of 12 minutes and 5 seconds in that broadcast, commencing at 11:39 p.m. on Saturday night. His rival candidates now have seven days from the date of that notice to file claims for equal time on air with local NBC stations. So, if for whatever reason you happen to be a Republican candidate frustrated with your lack of air time, like, say, for example, if you`re a super PAC just released a new ad attacking FOX for keeping you out of the latest Republican debate and silencing the only veteran in the field the day before Veterans Day. If you, Senator Lindsey Graham, for instance, feel like maybe you deserve some equal time with Donald Trump, well, you`re officially on the clock. Now, of course, I`m not suggesting you do this. I would never dream of ordering Senator Graham to do anything or suggest anything to anyone. But 12 minutes and 5 seconds -- hmm, I`m just saying, if you want 12 minutes and 5 seconds of interview time right here, call me. That does it for us tonight. Thank you very much for being with us. 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