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The Last Word with Lawrence O'Donnell, Transcript 03/04/15

Guests: Jack Gillum, Alex McGeorge, David Axelrod, Jennifer Granholm, JoshBarro, Ezekiel Emanuel

LAWRENCE O`DONNELL, MSNBC HOST: Hey, Rachel. Eric Holder has literally gone where no Attorney General before him has gone. RACHEL MADDOW, MSNBC HOST: Yes -- O`DONNELL: He has done work that has been ignored for decades that should have been done. MADDOW: Yes, and this sort of exit interview stuff that he is doing and the way that he is leaving, he is making a lot of case -- a lot of pretty good cases for what would give even future attorney generals even more latitude to do this kind of work. Thanks -- O`DONNELL: Great report on the -- MADDOW: Yes -- O`DONNELL: Holder report today, thanks Rachel -- MADDOW: Thanks Lawrence. O`DONNELL: Well, tonight, subpoenas have been issued for Hillary Clinton`s e-mails when she was Secretary of State, which we now know were kept on a server in her home in New York. And the Supreme Court considered the meaning of the few very simple words today, words that appear in the Affordable Care Act, and as usual, the justice could -- justices could not agree on what those words meant. Also tonight, Republican darling, Dr. Ben Carson has just apologized for what he said earlier today about gay sex in prison and it is a truly remarkable apology. (BEGIN VIDEO CLIP) UNIDENTIFIED FEMALE: Supreme Court arguments have just concluded on a legal challenge that goes to the heart of the President`s Affordable Care Act. PROTESTORS: Health care under attack! stand up, fight back! UNIDENTIFIED FEMALE: Seven million people could lose their subsidies. UNIDENTIFIED MALE: But the question for the Supreme Court is who gets that subsidy. JOSH EARNEST, PRESS SECRETARY, WHITE HOUSE: It is unwise to draw conclusions based solely on the questioning of the justices. UNIDENTIFIED FEMALE: We turn now from the Supreme Court to the federal court. The federal court house in Boston -- UNIDENTIFIED MALE: Bombing suspect Dzhokhar Tsarnaev`s defense lawyer made a stunning admission. UNIDENTIFIED MALE: It was him. That statement not from prosecutors, but from Dzhokhar Tsarnaev`s defense attorney. UNIDENTIFIED MALE: And this whole trial is not about guilt or innocence, the whole trial is, does he live or does he die? UNIDENTIFIED MALE: Our investigation show that Ferguson police officers routinely violate the fourth amendment. UNIDENTIFIED MALE: Over a pattern of racial bias among authorities in Ferguson, Missouri. UNIDENTIFIED FEMALE: Stunning patterns of racial bias. UNIDENTIFIED MALE: Stopping people without reasonable suspicion. Arresting them without probable cause, and using unreasonable force against them. UNIDENTIFIED MALE: Nobody wants to see anybody treated unfairly. UNIDENTIFIED MALE: Marriage equality is once again on hold in Alabama, leaving couples there in limbo, despite a U.S. Supreme Court order allowing them to proceed. UNIDENTIFIED MALE: Do you think being gay is a choice? BEN CARSON, RETIRED NEUROGEON: Absolutely. UNIDENTIFIED MALE: Why do you say that? CARSON: Because a lot of people who go into prison go into prison straight, and when they come out they`re gay. UNIDENTIFIED FEMALE: OK, moving on. UNIDENTIFIED MALE: She is the keeper of her records. UNIDENTIFIED FEMALE: Hillary Clinton`s exclusive use of a private e-mail account. UNIDENTIFIED MALE: I just want the documents, whether it`s unprecedented or not, it`s very unusual. (END VIDEO CLIP) O`DONNELL: As expected, the house committee that is still investigating the deadly attack on American diplomats in Benghazi, Libya issued subpoenas today for then Secretary of State Hillary Clinton`s e-mails. The subpoenas were issued on the same day the "Associated Press" reports the existing of a personal e-mail server traced to the home of Bill and Hillary Clinton in Chappaqua, New York. The "Associated Press" said today, it is considering legal action under the Freedom of Information Act against the State Department for failing to turn over some e-mails during Secretary Clinton`s tenure. The "Ap" says the State Department has never before suggested that it did not possess all of Secretary Clinton`s e-mails. Joining me now is Jack Gillum, an investigative reporter for the "Associated Press" who broke the story about Hillary Clinton`s private e- mail server at her home. Jack, the -- how did you trace this server to her home? JACK GILLUM, INVESTIGATIVE REPORTER, ASSOCIATED PRESS: Well, when we began looking, Lawrence, at the existence of private e-mail accounts, her address is owned by Secretary Clinton. We looked at these contemporaneous internet records that showed where this web server rather, this e-mail server was registered at the time. That IP address had gone back to an internet connection that was owned -- a dedicated internet connection that was owned by somebody at the Clinton`s household at the time. Registered with somebody who had a slight misspelling that turned out to be an aide to the secretary when she was first lady under then President Bill Clinton. We don`t know where that e-mail server is located, but we know that it was certainly run on network that the Clintons had owned somewhere in New York State. O`DONNELL: And the aide you`re talking about who seems to have set this up, according to the records is named Eric Hothem, and he has a long history with the Clintons that involve other controversies. GILLUM: Right. And I think the question here is that when we start looking into the servers and had you asked, how we know the Clintons have used this private internet connection to conduct their e-mail is, where are these e-mails being stored? Why are they using a service rather than something that the State Department -- and how secure were those messages, particularly in the face of foreign adversaries. O`DONNELL: And as of now, we have -- no one has succeeded in getting a reason for this from Hillary Clinton? GILLUM: They have declined to comment on this issue. And this comes amid the -- as you mentioned, the "Associated Press" and other news organizations requests under the Freedom of Information Act. Which affords citizens and others access to government records for more than a year and a half at least in the "Ap`s" case. To get e-mails in which Secretary of State -- when Hillary Clinton was Secretary of State to get those messages between her and her aides about a variety of topics. Of course journalists use those records to evaluate a presidential candidate as she will likely seek the Democratic nomination for the White House. O`DONNELL: And Jack, the State Department is -- has been sort of assuring us that there were no classified e-mails or information involved. But according to what we know so far, it is impossible for the State Department to know everything that happened on that e-mail system. GILLUM: Well, that`s a good question, Lawrence. When you have e-mails that are hosted on a separate server, someone that either they owned that server or it`s on a third party server like Google or Yahoo, G-mail for example that maybe a lot of people use. It`s unclear when the government has to go searching for those e-mails because a journalist had requested them. If those are in-house, they can go to the I.T. folks and say the State Department or any other Obama administration executive agency and ask for those records when they`re on a third party server or maybe even one hosted at somebody`s house. And that is incumbent upon the person there to turn over all those records. And I think that`s what Congressional investigators are asking for today in seeking those e-mails. O`DONNELL: And just quickly background us on the "Ap" Freedom of Information Act request. Apparently, the "Ap" had issued Freedom of Information Act requests over the years to the State Department that would have included Hillary Clinton`s e-mails. You got no Hillary Clinton e-mail and the State Department never said to you, oh, we don`t possess any, it`s -- she possesses it. GILLUM: Well, the "Ap" hasn`t even gotten to that point yet. We -- after a year and a half of seeking these records, we only got to the point where they agreed whether or not to speed up their request that`s known as expedited processing under the Freedom of Information Act for certain cases such as the news media, for breaking news event. And we`re still -- we`re tussling over that very issue rather than whether there`s responsive records. And Lawrence, there`s a bigger issue here, it`s not just for Hillary Clinton`s records, but this occurred with Mitt Romney`s records, with Sarah Palin`s e-mails, with both Republicans and Democrats when journalists try to evaluate this record. And they try to ask for these records, whether they`re e-mails, whether they`re schedules or calendars, and often journalists are faced with either -- under state agencies or under the federal government, these restrictions that either they say the records don`t exist or it`s going to cost you a lot of money. So you better pony up that or you are not going to get the documents. O`DONNELL: Jack Gillum, thank you very much for joining us tonight. GILLUM: Thank you. O`DONNELL: We`re joined now by Alex McGeorge, a computer security expert who analyzed the internet records related to Hillary Clinton`s server. Those records were obtained by "Bloomberg News". All right, well, the question, Alex, is security. That`s the one that I`ve been talking about from the start. Going outside of the State Department`s system, setting up something at home like this, in your analysis, how secure was this? ALEX MCGEORGE, COMPUTER SECURITY EXPERT: Well, I think the cogent point here is that, a private individual, right? One of Mrs. Clinton`s aides is not going to be able to configure a server or maintain a secure server at a secured fashion similar to what the State Department is capable of. You know, even if he configured it to the best of his ability, the problem still remains, there`s no one -- presumably, there`s nobody at the Clinton staff or their house who is constantly monitoring the server to see if it`s been the victim of compromise. And as a result, the security suffers. O`DONNELL: And on the encryption system that they used for it apparently, they did not configure it very well. They just used the factory configuration, at least, that`s what it appears to be. And when you get that kind of system, you`re supposed to reset it to your own configuration so that it isn`t the factory default. MCGEORGE: Yes, sort of. So what we found was, there is some e-mail records, right, the e-mail server and then they have what`s known as a VPN server, virtual private network. What that does is, it allows you to have a device and has a secure encrypted connection to the server, and if this server is joined to another network, say one that hosts your e-mail, you are able to retrieve your e- mail securely. What we found -- or at least over an encrypted connection. What we found was that the certificate, the SSL certificate that a lot of you viewers will be familiar with, if you ever do any online banking or shopping, it`s all protected by SSL. That certificate was what was issued by the manufacturer, and their own documentation states, as soon as you get it, you`re supposed to replace it with one that you purchased yourself. That didn`t happen if the configuration that we can see now is reflective of the configuration that she was using then. O`DONNELL: So Alex, just a final word on this, on the security of it. It`s not something you would recommend a Secretary of State use? MCGEORGE: No, I think it`s absolutely ridiculous. We should not allow top government officials to say, you know what? I`m going to handle my own e- mail. You know, not to besmirch their ability or their intelligence, but I.T. security is a very complex and a very difficult game to get into, especially when you need to defend against something like a nation state adversary. Which presumably would be what Mrs. Clinton was trying to defend from. As a result, you just can`t do it, it doesn`t make any sense. You need to have the government`s help in order to make this secure. O`DONNELL: Alex McGeorge, thanks very much for joining us tonight. MCGEORGE: My pleasure. O`DONNELL: We`re joined now by MSNBC`s senior political analyst David Axelrod, former senior advisor to President Obama, also Josh Barro, an MSNBC`s contributor and reports for the "New York Times". And Jennifer Granholm, former governor of Michigan. David Axelrod, you worked in this administration. What was the policy of your administration involving e-mail like this? DAVID AXELROD, SENIOR POLITICAL ANALYST, MSNBC & DIRECTOR, INSTITUTE OF POLITICS, UNIVERSITY OF CHICAGO: Well, it was -- there was a rigorous policy about using the e-mail, people had private e-mail, but government business was to be conducted on government e-mails. So I don`t know what the policy was at the State Department at the time. O`DONNELL: Do you have any reason -- AXELROD: I don`t -- O`DONNELL: David? Do you have any reason to think the policy at the State Department was different from what you were told in the White House? AXELROD: I honestly, I honestly don`t know, Lawrence. I`m not trying to be coy about that, every agency is different. But let me just make a political point, if I can. I want to leap ahead in your program -- O`DONNELL: OK -- AXELROD: But I think the real issue here -- well, however this turns out, this problem is being exacerbated by the lack of answers from the Clinton campaign or the Mason(ph) campaign. And it would be good to get out there and answer these questions, why did she use a separate e-mail? How did she secure that e-mail? Was there another e-mail through which she -- through which she communicated with people? By not answering these questions, they`re allowing the story to fester in ways that are unhelpful and so, you know, lack of speak kills in this case. O`DONNELL: Jennifer Granholm, since 2009, the National Archives and Records Administration Regulation says, "agencies that allow employees to send and receive official electronic mail messages -- that would be the State Department. Using a system not operated by the agency, if you do that, you must ensure that federal records sent or received on such systems are preserved in the appropriate agency record-keeping system." And we don`t see that that`s what happened, no way of knowing now how many of Hillary Clinton`s e-mails that were in that system were actually properly preserved. JENNIFER GRANHOLM, FORMER MICHIGAN GOVERNOR: Well, the issue, Lawrence, is that, what was the State Department`s proper record-keeping system? What she did was follow the precedent that had happened before. Which is, that she had -- O`DONNELL: You know -- GRANHOLM: She did e-mail on a private system -- O`DONNELL: Governor Granholm, when was it -- GRANHOLM: What Colin Powell did -- O`DONNELL: Granholm, when there`s a new regulation issued while you are Secretary of State in 2009, you don`t get to say, I`m doing what everyone before this regulation did. GRANHOLM: Well, why not? If it was good enough -- (CROSSTALK) Why wouldn`t you -- O`DONNELL: Because they just changed the regulation. If I raise your -- GRANHOLM: No -- O`DONNELL: Tax rate, you don`t get to say -- GRANHOLM: Just quit Lawrence -- O`DONNELL: To me, I`d like to pay the old one. GRANHOLM: Lawrence, if it worked for the previous administration -- (LAUGHTER) Why not? Keep it -- O`DONNELL: Oh, this is -- GRANHOLM: I mean you`re laughing, but -- O`DONNELL: It`s ridiculous -- GRANHOLM: Obviously, this will -- wait -- O`DONNELL: How can you say -- are you saying -- GRANHOLM: Lawrence -- O`DONNELL: You should just -- GRANHOLM: Just check it -- O`DONNELL: Ignore all -- GRANHOLM: Obviously -- O`DONNELL: New regulations? GRANHOLM: No, of course not. But they`re -- what she is saying is that she followed precedent, which is what was done before. In 2014, there was an amendment to that law to make it clearer, so there`s clear -- there was an ambiguity in the law. But she just did what Secretary Powell did, and by the way, of course, she has released 55,000 pages of e-mails pursuant to the State Department`s -- O`DONNELL: How many did she -- GRANHOLM: Request -- O`DONNELL: Not release? GRANHOLM: She is the only secretary -- I have no idea -- O`DONNELL: You don`t know? Right -- GRANHOLM: But she -- O`DONNELL: You have no idea -- GRANHOLM: Well, no, of course I don`t know -- O`DONNELL: Well -- GRANHOLM: How many she did not, but the point is -- O`DONNELL: But should take -- points -- wants to have all of that -- GRANHOLM: When you got it -- you`ve got -- Lawrence, I mean, I know this is a really big thing for the beltway crowd, I completely understand that. But you`ve have a committee now that is subpoenaing all these records, and I`m sure I can hardly wait for them to subpoena Colin Powell`s e-mail, private e-mail or Jeb Bush`s private e-mail which he held on a separate server. Or -- I mean it`s -- you start to go down this path, and you have to treat one side the same as the other. And there certainly is a lot of precedent on the other side for people to have both private e-mails that are done, because they don`t want their private business being on government time. Often, it`s because you don`t want the taxpayers to pay for your private conversations. O`DONNELL: Governor, I`m going to talk about you now and then we`re going to come back to you and get you a chance respond to this. But what I just heard is what I don`t believe Governor Granholm would be saying, Josh Barro, if this were a Republican administration? JOSH BARRO, JOURNALIST: Oh -- O`DONNELL: And it is not what I heard any Democrat say when they discovered that Chris Christie`s team was using private e-mail when convenient to them, when they were trying to get around to use the official e-mail. This strikes me when I hear responses like that, of already the reaction to it is purely partisan, if you support Hillary Clinton`s candidacy, you`re going to say there`s nothing wrong here. But if we turn the tables and just put a Republican name beside this story, totally different response. BARRO: Yes, but I mean this story has been instructive. It`s been helping us to learn who will defend anything Hillary Clinton does, no matter how indefensible -- O`DONNELL: Yes -- BARRO: I mean you read the regulation yourself -- O`DONNELL: There`s nothing -- BARRO: It says -- O`DONNELL: Ambiguous about that -- BARRO: It says in the record -- O`DONNELL: Not an ambiguous word in it. BARRO: Have to be preserved at the State Department, and just this Fall, the State Department requested those records, but it went years. And so who was running the State Department during the periods that that regulation was supposed to be implemented? It was Hillary Clinton. It was her job to get in compliance with this and she didn`t. O`DONNELL: Governor Granholm, we`re going to take a break here, we`re going to come back and let you respond to what we all just -- we just said here in New York. We`ll be right back. (COMMERCIAL BREAK) O`DONNELL: We`re back with David Axelrod, Josh Barro and Jennifer Granholm. Governor Granholm, I`m having trouble believing that if we were talking about a Republican Secretary of State hiding e-mails like this, that you`d be saying the same thing. GRANHOLM: Well, but you`re saying hiding e-mails. She turned over 55,000 pages of e-mails. I mean, you`re -- what you`re suggesting is that she didn`t turn over everything, and she`s getting subpoenaed over that. But if you`re talking about one side and the other, then I am curious as to whether you will see the Republicans, you know, jumping up and down about the previous -- the Republicans who have not turned over their private e- mails, too. This is a slippery slope for them as well. The bottom line is, Lawrence, that this issue, it is just not going to be something that voters are going to care about in 2016. Whether the archives were kept in the right fashion or not, they care about jobs. They care about foreign policy, they`re not going to care about this particular issue, which you`re right, does bite both -- bite both sides. O`DONNELL: David Axelrod, the Clintons have always been lucky in how clumsy their political opponents are. And here we have the Benghazi Committee going after these e-mails, and in a sense, she is lucky that, that committee which has been discredited in the -- AXELROD: Yes -- O`DONNELL: Eyes of so many people already. AXELROD: No question about it. It`s the longing -- longest running dry hole in history and no reason to believe that would change. Again, look, I think a lot of these -- I`m sorry, halfway between you and Governor Granholm, in the sense that I don`t really know whether she turned over all the e-mails. I don`t know whether she had another e-mail, I don`t know why she didn`t have an address at the State Department that she used for secure -- converse -- I don`t know any of that. But it would behoove them to just answer those questions and get this behind them and not let it become a long running story. I agree with Jennifer that I don`t think this is going to be the issue that the election turns on. But these little things turn to hijack the story for a long periods of time, unless you`re responsive in a very -- in a very quick way and they`ve let this lapse for several days now. O`DONNELL: Governor Granholm, would you as a candidate or would you as a governor have refused to answer the question of why did you do this for this length of time? GRANHOLM: I don`t think she has refused to answer the question. I think first -- O`DONNELL: No, she has -- GRANHOLM: Both people have been out there -- O`DONNELL: Reporters are getting a refusal -- GRANHOLM: Well -- O`DONNELL: To answer. Let me just ask -- GRANHOLM: Well, it`s just -- (CROSSTALK) Josh Barro of the "New York Times" asked Hillary Clinton, tried to ask Hillary Clinton why she did this, and has she refused to answer? BARRO: We -- I know reporters of the "Times" have gone to her spokesperson -- O`DONNELL: Yes -- BARRO: And have not gotten answers about the justification, we`ve gotten some very limited answers, including they`re very emphatic about the fact that when she e-mailed other people at the State Department, those e-mails were archived because the other people at the State Department used their e-mail addresses. But they won`t give us a clear answer on what happened when Hillary Clinton e-mailed someone outside the government or someone in another government agency about a topic when those are getting archived. And the thing is, David is right, we don`t know whether she`s turned over everything she`s supposed to turn over. What we do know is, she hasn`t turned it over in a timely manner. You had places like the "Ap", they were making requests, going back more than a year, trying to get these records from the State Department, they couldn`t get them because the State Department didn`t have the records. So even if she`s turned over everything now, it`s too late. O`DONNELL: Jennifer Granholm, a quick last word on this for us. GRANHOLM: Well, I don`t think it`s too late. There are 55,000 pages of e- mails out there, the "Ap" should make them renew their request. They`re in the right place, they would be foible if there`s no classified information or otherwise some danger to the state, do it. O`DONNELL: Jennifer Granholm, David Axelrod, thank you both for joining me tonight here -- AXELROD: Thank you. O`DONNELL: Barro is going to hang around for something else later on. Coming up, the U.S. Ambassador to South Korea Mark Lippert has just been attacked in the morning, in South Korea. He was attacked there by a man wielding a knife. We will have the latest after this. (COMMERCIAL BREAK) O`DONNELL: We have breaking news from South Korea. A few minutes ago, the President of South Korea called an assault on the American ambassador there, "an attack on a South Korean-U.S. alliance." Tonight, a man armed with a knife attacked Ambassador Mark Lippert slashing him in the face. The attack happened at a breakfast event in Seoul where it was just after 12:00 noon now. The suspect was arrested and the State Department says the ambassador`s injuries are not life-threatening. South Korean media is reporting that the same suspect threw a stone at the Japanese ambassador five years ago. Up next, the Supreme Court hears arguments today over some very simple words, but those words appear in the Affordable Care Act. (COMMERCIAL BREAK) O`DONNELL: Today, the United States Supreme Court considered what these six words mean. "An exchange established by the state." That`s it. Those are the words. The question before them is, do those words actually mean an exchange established by the state or do they mean an exchange established by the state and/or the federal government? If they mean the latter, why didn`t Congress simply include those words and/or the federal government in the Affordable Care Act? Plaintiffs in the Supreme Court today argued that because the law provides financial subsidies for the purchase of health insurance through "an exchange established by the state". No one in states that did not establish such exchanges should be eligible for those subsidies. That would mean the subsidies in the Affordable Care Act would be denied to beneficiaries currently receiving them in 34 states. Joining me now is Steven Brill, author of "America`s Bitter Pill", "Money Politics", "Backroom Deals" and "The Fight to Fix Our Broken Healthcare System". It is the most exhaustive study of the Affordable Care Act. And also Dr. Zeke Emanuel, chair of the Medical Ethics and Health Policy at the University of Pennsylvania. Zeke Emanuel, you were in the Supreme Court chamber today, what was your feeling about where the argument went and how much of the Affordable Care Act will survive? EZEKIEL EMANUEL, MEDICAL DOCTOR & CHAIR, MEDICAL ETHICS AND HEALTH POLICY, UNIVERSITY OF PENNSYLVANIA: Well, this is what -- this isn`t how much of the Affordable Care Act will survive, because if they -- it`s rule not unconstitutional, but invalid. That -- there goes the Act in everything but 16, 17 states. So everything is on the line here. And I actually think the government did an extraordinarily good job, Don Verrilli, the solicitor general did a good job outlining why you have to read these words in context. And when you read them in context, it makes quite clear many other parts of the statute. And he gave a very good example. If in fact, it`s only by the state`s -- people in the state get subsidies, then it makes no sense to talk about exchanges that the federal government will set up, because those exchanges are just shell games because no one would be a qualified individual buyer. And there would be no qualified insurance companies to sell in those exchanges by the definitions of exchanges and qualified individuals in those states. So you would actually have whole parts of the legislation that make no sense. He also pointed out, and Justice Kennedy picked this up, that this actually threatens federalism, because the federal government is really threatening to destabilize the entire insurance market in states, and only with a very small phrase which, at the time, no one understood as a threat. And so that would not be -- that would be coercive of the state and Justice Kennedy was very much on that point and I think sided with the government on that point. O`DONNELL: Right. Let`s listen to what may be the strongest card in the brief that the plaintiffs brought. They actually quoted Jonathan Gruber, who worked on writing this bill. EMANUEL: Yes. O`DONNELL: Putting this bill together. Let`s listen to -- this is what Jonathan Gruber said and this appears in the plaintiffs` pleadings and briefs. EMANUEL: Yes. O`DONNELL: To the Supreme Court. Let`s listen to this. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: I think what`s important to remember politically about this is if you`re a state and you don`t set up an exchange, that means your citizens don`t get their tax credits. But your citizens still pay the taxes to support this bill. So you`re essentially saying to your citizens, you`re going to pay all the taxes to help all the other states in the country. I hope that that`s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges and that they will do it. But, you know, once again, the politics can get ugly around this. (END VIDEO CLIP) O`DONNELL: So, Steven Brill, there`s one of the architects of the bill saying this was very deliberate. It was a very deliberate financial incentive put in there. His statement makes perfect sense, as you listen to it. But to give the full context of it, shortly after that statement which he made in 2012, shortly after it was revealed two years later, two years later he said, so one of the greatest denials of what someone said I`ve ever head, he said, I honestly don`t remember why I said that. I was speaking off the cuff. It was just a mistake. People make mistakes, Congress made a mistake drafting the law, and I made a mistake talking about it. It was just Speak-O, you know, like a typo." STEVEN BRILL, "AMERICA`S BITTER PILL" AUTHOR: Well -- (LAUGHTER) BRILL: Listen, I don`t know what to say about that. O`DONNELL: I don`t either. BRILL: I have two comments. First of all, I spent hours interviewing Jonathan Gruber and he never -- and I asked him about the difference between the state exchanges and the federal. O`DONNELL: Yes. BRILL: And he never mentioned any of that. A lot more time than is in that quote. Second, this is about legislative intent, it`s not about Jon Gruber`s intent. And Jon Gruber did not -- he was not an architect of this law. He was on the outside looking in, much to his frustration, the whole time. He ran economic models to figure out the cost of the law and every economic model he ran, which I saw, assumed that all 50 states, the citizens in all 50 states, would get the subsidies. Now, Zeke, who has a dog in this hunt, actually sounds like he was trained as a lawyer at Harvard instead of a doctor. I think he got it exactly right. I don`t have a dog in this hunt. You know, I`m a reporter. I don`t like to take sides. My book really doesn`t take sides on Obamacare. There`s a lot of criticism of it. There`s a lot of praise but this is a fairytale that the plaintiffs have brought. All of my reporting, all of the members of the House and Senate I talked to, all of their staffs, and I talked to them before this surprisingly became a piece of litigation that people were watching. None of them said anything about the states that didn`t set up an exchange losing their subsidies. This is pure myth. O`DONNELL: This has always read to me like what we call a drafting error. It happens all the time in this kind of legislation. It`s fixed all the time in what they call a technical corrections bill. Something the Congress is now incapable of passing. (CROSSTALK) BRILL: It`s not really a drafting error. O`DONNELL: And couple -- and a couple of months later there`ll be always be technical corrections. In fact for years they do technical corrections. BRILL: It -- you can argue it lacks clarity, that they could have said in the state instead of by the state. O`DONNELL: Yes. BRILL: But the fact is, it`s not an error because, you know, this is getting down into the weeds, but the word exchange is capitalized. As you know, because you used to write legislation, when it`s capitalized, there`s a definition around it. O`DONNELL: Right. BRILL: The definition in the law around it says that an exchange is an exchange established by the state or established by the federal government in essence of the -- (CROSSTALK) O`DONNELL: Zeke, did the government make that -- what Steve is saying, which I think is crucial. EMANUEL: Yes, they did. O`DONNELL: Did they say that clearly today in front of the Supreme Court? EMANUEL: So Don Verrilli said it clearly. O`DONNELL: OK. EMANUEL: And I would say even more clearly, Justice Breyer, in the second colloquy right out of the box in the first five minutes, made it very clear that the phrase that you quoted is only part of the phrase that, in fact, it refers back to a definition. O`DONNELL: Right. EMANUEL: And that definition of the exchange -- of the exchange makes clear. It has the phrase "such exchange" and the such exchange includes both state and federal exchanges. O`DONNELL: Right. I`m sorry, guys, we`re out of time on this. But, Steven, it clearly turns on how many justices accept the way you just described it. That is the case. BRILL: Well, I`m embarrassed that this is even a case. O`DONNELL: Yes. BRILL: It should never been a case. O`DONNELL: Sorry, Zeke, we`ve got to go. Sorry. EMANUEL: I think it`ll be 5-4 or 6-3. O`DONNELL: All right. EMANUEL: Holding the government`s position. O`DONNELL: All right. I think we got the official prediction. And do you want to an official prediction? BRILL: No. O`DONNELL: OK. All right. Steven Brill and Zeke Emanuel, thank you both for joining me tonight. Coming up, the remarkable apology Dr. Ben Carson has just issued for the remarkable thing he said earlier today about gay sex in prison. (COMMERCIAL BREAK) O`DONNELL: The defense team for accused Boston bomber Dzhokhar Tsarnaev told the jury in opening statements today that he did it and then walked away before the bomb exploded. NBC`s Peter Alexander is covering the trial in Boston. Peter? PETER ALEXANDER, NBC NEWS CORRESPONDENT: Lawrence, good evening to you. This was an emotional day with bombing survivors for the first time facing the man that even the defense admits tried to kill them. And suspect Dzhokhar Tsarnaev`s team appearing to fight for his life but not his innocence. (BEGIN VIDEOTAPE) ALEXANDER: Inside Boston`s federal courthouse today, bombing suspect Dzhokhar Tsarnaev`s defense lawyer made a stunning admission. It was him. Tsarnaev showed no emotion wearing a dark blazer and open collared shirt. He faces 30 charges, many that could carry the death penalty including using a weapon of mass destruction resulting in death. His lawyer acknowledged the bombings were misguided acts that were inexcusable and admitted the explosions extinguished three lives. Among those victims, 8-year-old Martin Richard. Prosecutors showed jurors Martin`s smiling face graphically detailed his death, as his parents wipe away tears. Taking the stand today, Rebecca Gregory who lost her left leg. She remembers hearing her son calling, mommy, mommy, mommy, and thinking to herself, God, if this is it, take me but let me know Noah is OK. Sydney Corcoran was badly wounded. "I remember feeling I`m just going to sleep. It felt almost peaceful," she said. "I was fading fast." Survivor Heather Abbott wants to see Dzhokhar Tsarnaev punished. HEATHER ABBOTT, SURVIVOR: I think it`s important that somebody like that isn`t ever out in the public again. ALEXANDER: The jury made up of 10 women and eight men will also be shown never-before-seen surveillance video of the defendant placing the pressure cooker bomb right behind a row of children. "He pretended to be a spectator but he had murder in his heart," the prosecutor said, adding, "He believed he was a soldier in a holy war against Americans." The defense tried to shift the blame to Tsarnaev`s older brother Tamerlan who died when he was accidentally run over by his younger brother during a shootout with police, insisting, "It was Tamerlan who self-radicalized. Dzhokhar who followed him." PETE WHITE, FORMER FEDERAL PROSECUTOR: The best chance they have to generate sympathy is this relationship with his brother. ALEXANDER: Still the defense said, "We will not argue that Tamerlan put a gun to Dzhorkar`s head. After police cornered Tsarnaev hiding in this boat, prosecutors say they found a message he`d scrolled inside. "I ask Allah to make me a martyr," offering what they say is a motive for Tsarnaev`s bombing attack. "He thought it would help secure him a place in paradise." (END VIDEOTAPE) ALEXANDER: The real question dominating this trial is whether Dzhokhar Tsarnaev should be put to death. As a member of the defense team said earlier this week, this case is all about the sentencing. Lawrence? O`DONNELL: Peter Alexander, thanks. Coming up, Republican darling Dr. Ben Carson issued an apology tonight that will set a high standard for all of the other potential candidates for president. A standard that few or none of them will meet. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) CHRIS CUOMO, CNN ANCHOR, NEW DAY: You think being gay is a choice? BEN CARSON, POTENTIAL REPUBLICAN CANDIDATE: Absolutely. CUOMO: Why do you say that? CARSON: Because a lot of people who go into prison go into prison straight, and when they come out, they`re gay. So did something happen while they were in there? Ask yourself that question. (END VIDEO CLIP) O`DONNELL: That was potential Republican presidential candidate Dr. Ben Carson this morning on CNN, and this evening, we have a written apology that Dr. Carson posted on Facebook. "I do not pretend to know how every individual came to their sexual orientation. I regret that my words to express that concept were hurtful and divisive. For that I apologize unreservedly to all that were offended. I know that we are all made in God`s image which means we are all deserving of respect and dignity. I support human rights and constitutional protections for gay people and I have done so for many years. "I support civil unions for gay couples and I have done so for many years. I support the right of individual states to sanction gay marriage and I support the right of individual states to deny gay marriage in their respective jurisdictions. I am a politician and I answered a question without really thinking about it thoroughly. No excuses. I deeply regret my statement and I promise you on this journey I may err again but unlike politicians when I make an error I will take full responsibility and never hide or parse words. "As a human being my obligation is to learn from my mistakes and to treat all people with respect an dignity." Back with me is "The New York Times" Josh Barro. Josh, what I`m struck by is just the unqualified nature of this apology. Politicians don`t apologize that way. They always couch it, if they apologize at all. JOSH BARRO, MSNBC CONTRIBUTOR: Yes. Well, and as he says, he`s not a politician. O`DONNELL: Right. BARRO: I think this is one of the reasons that he`s not ultimately going to be a serious contender for the presidency. He`s going to get in all sorts of distractions like this. But what really strikes me about both the initial statement he made and the apology is how he sort of -- talking about gay people as a theoretical idea, like, you know, maybe he saw "Oz" on HBO and he, like, you know, he`s heard about gay people and thought about them and thought about their rights. But it`s like if you know gay people in your everyday life and they`re around you and you have talked to them about their values and their interests and how they, you know, came to realize they were gay, this isn`t the sort of mistake you would make in an off-the-cuff remark. And so I think it reflects the fact, you know, as LGBT people look at him, obviously, there aren`t a lot of gay voters in the Republican primary, but it really -- it really sends a signal that even though he spent some time thinking about gay people he doesn`t really know them. O`DONNELL: Yes. And the issue, it`s also about just how alive any question involving gay people is in the Republican Party. It`s just something that they`re always going to go in some odd direction. Let`s listen to what Jeb Bush told Sean Hannity about it at CPAC. (BEGIN VIDEO CLIP) SEAN HANNITY, FOX NEWS CHANNEL ANCHOR: Gay marriage, are you changing your position at all? JEB BUSH (R), FORMER FLORIDA GOVERNOR: No, I believe in traditional marriage. (END VIDEO CLIP) O`DONNELL: And, Josh Barro, they`re going to go down with that sinking ship as long as it`s around. BARRO: Well, I`m -- but the ship may not be around very long. O`DONNELL: Yes. BARRO: I mean, first of all, Jeb Bush has changed his position. If you read what he was writing about homosexuality 20 years ago, he was kind of fire-breathing. He was talking about how, you know, we shouldn`t be sanctioning sodomy and things like that. And so certainly he`s just hired an openly gay communications director who will be a very senior staffer in his campaign, even though he`s out there saying, you know, I support traditional marriage, checking the box in the Republican primary. It`s clear there`s been motion both in the party and with Jeb Bush specifically. Now I think the question for Republicans is if, as is very likely, we soon get a Supreme Court ruling that brings gay marriage throughout the entire country, how much of a pressure is there for sort of hardcore resistance to that? We`re seeing it right now in Alabama you have Republican politicians trying to hang on really hard to opposition to gay marriage. But that`s been the exception rather than the rule. In most places I think we`re kind of seeing a sigh of relief from Republican officials when a court finally rules against them they can take this issue off the table and stop obsessing about it. O`DONNELL: No, and generally elected officials love it when a court reaches in -- BARRO: Yes. O`DONNELL: -- and removes their authority and therefore any responsible. BARRO: Yes. No, they get to say, well, you know, I did my best. O`DONNELL: Yes. (CROSSTALK) O`DONNELL: Yes. BARRO: But, you know, this is out of my hands now. But we are seeing the counterfactual to that in Alabama where you`ve seen elected officials, you`ve seen state court officials acting out, acting contrary to federal courts, issuing contradictory rulings that have put local officials in a very difficult position. You could see other states taking action like that. But I think in general, this issue is going to be really de- emphasized in a couple of years for Republicans. O`DONNELL: Josh Barro, thanks for joining us tonight. Coming up, the genius of a young husband and father as he approaches what might soon be the end of his life. (COMMERCIAL BREAK) O`DONNELL: President Obama and First Lady Michelle Obama along with President George W. Bush will visit Selma, Alabama, this Saturday to mark the 50th anniversary of the Bloody Sunday civil rights march. The president will deliver remarks at the historic Edmund Pettus Bridge. Ava Duvernay, the director of the Oscar Nominated film "Selma," will be there with them, and she will be here with us tomorrow night. We`ll be right back. (COMMERCIAL BREAK) O`DONNELL: This week is MSNBC`s "Seven Days of Genius." One of the characteristics of genius is the ability to see things, things that are right in front of us that the rest of us don`t see. That`s how this neurosurgeon Paul Kalanithi sees life and death. (BEGIN VIDEO CLIP) DR. PAUL KALANITHI, NEUROSURGEON: Clocks are now kind of irrelevant to me. Time, we`re used to having the linear progression feel to it. Now it feels more like a space. In the life of a neurosurgery resident, time is linked to progress. And as the numbers on the clock increase, so too should your progress toward some goal. I first began noticing symptoms in my sixth year of residency. So I had a full body CT scan and yes, there were metastatic lesions all over the place. Obviously, (INAUDIBLE) and I were both very suspicious that I had some form of cancer. I`m actually having the confirmation is still devastating. And so we were in that hospital room and we just kind of laid there and cried a little bit. And then called my parents, my brothers. After finishing chemotherapy and coming out of the hospital and entering this recuperative phase, and not working, time is very different where I`m not thinking about how each 15 minutes is going to contribute to some greater productivity. Verb conjugation is particularly confusing for me, for the verb to be. I finished neurosurgical training, so I am a neurosurgeon. I`m not practicing currently. If I get healthier, I plan on getting back to clinical medicine. So in that sense, I will be a neurosurgeon, or I won`t depending on how things go. And so I don`t really know what the correct tense to use is. I am, I was, I will be, I have been. Certainly medical training is very future oriented, because it`s all about the way of gratification, and so you`re always thinking about five years down the line what you`re going to be doing. Five years down the line, I don`t know what I`ll be doing. I may be dead, I may not be. And so it`s not all that useful to spend a lot of time thinking about the future beyond lunch. Since Katie`s birth, my time with her has had a very peculiar and free nature. In all probability I won`t live long enough for her to remember me or have any clear memory of me. And so the time is just is what it is. Which is fun, because she`s a really good baby. (END VIDEO CLIP) O`DONNELL: When Dr. Kalanithi got his diagnosis, he became obsessed with the big question, the big question that floats somewhere in the back of all of our minds, how long have I got left? He believed if he knew the answer to that question, he would know what to do with the rest of his life. If it was weeks, he would spend all of his time with his family and loved ones. If it was a year, he would write a book. If it was five years he would go back to work. But just as he had told patients himself, his doctor told him that there was no way to know the exact time. In an essay in "The New York Times" he wrote, "I began to realize that coming face-to-face with my own mortality in a sense had changed both nothing and everything. Before my cancer was diagnosed I knew that someday I would die but I didn`t know when. After the diagnosis I knew that someday I would die but I didn`t know when. The fact of death is unsettling yet there is no other way to live." In the current issue of Stanford Medicine magazine, Paul Kalanithi teaches us things that we should already know about what we should value and what matters most in our lives. Things that he can see so clearly now as he approaches the end of life. The article titled "Before I Go," ends this way. "Most ambitions are either achieved or abandoned. Either way they belong to the past. The future, instead of a ladder toward the goals of life flattens out into a perpetual present. Money, status, all the vanities the preacher of Ecclesiastes described hold so little interest. Chasing after win indeed. Yet one thing cannot be robbed of her futurity. My daughter Katie. "I hope I live long enough that she has some memory of me. Words have a longevity, I do not. I had thought I could leave her a series of letters but what would they really say. I don`t know what this girl would be like when she`s 25. I don`t even know if she`ll take to the nickname we`d given her. There is perhaps only one thing to say to this infant who is all future, overlapping briefly with me who`s life, barring the improbably is all but passed. That message is simple. "When you come to one of the many moments in life when you must give an account of yourself, provide a ledger of what you have been and done and meant to the world do not, I pray, discount that you filled a dying man`s days with a sated joy, a joy unknown to me. In all of my prior years a joy that does not hunger for more and more but rests, satisfied. In this time, right now, that is an enormous thing." END