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The Last Word with Lawrence O'Donnell, Transcript 2/15/2016

Guests: David Frum, Jonathan Allen, Tom Goldstein, Robert Costa, Maria Teresa Kumar, Rich Hassen

Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: February 15, 2016 Guest: David Frum, Jonathan Allen, Tom Goldstein, Robert Costa, Maria Teresa Kumar, Rich Hassen

RACHEL MADDOW, MSNBC HOST: And is a former prosecutor -- enemy in the world, has a squeaky clean reputation, and is a former prosecutor.

That is why you are seeing Amy Klobuchar`s name on the list -- on the shortlist in terms of a potential successor to Justice Antonin Scalia.

And Amy Klobuchar will be here on this show live tomorrow night. Until she cancels at the last minute because she`s being vetted for the Supreme Court.


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.

LAWRENCE O`DONNELL, MSNBC HOST: Rachel, if she cancels, you have breaking news tomorrow.

MADDOW: It`s like do I want to wait by the phone, hoping and also not hoping that she calls?

O`DONNELL: I know, that is a perfect setup.

MADDOW: Thank you.

O`DONNELL: That`s perfect. Thank you Rachel --

MADDOW: Thanks friend, appreciate it.

O`DONNELL: Thank you. Well, the United States Senate used to confirm Supreme Court Justices within days or sometimes at most a couple of weeks of the president actually nominating them.

And there used to be confirmed without being asked a single question by a single senator.

What changed all that and what we`re doing right now -- television.


BARACK OBAMA, PRESIDENT OF THE UNITED STATEES: I plan to fulfill my constitutional responsibilities to nominate a successor.

SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: We should not allow a lame- duck president to essentially capture the Supreme Court --




HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: Barack Obama is president of the United States until January 20th, 2017.

CRUZ: If Donald Trump is president, he will appoint liberals.

TRUMP: He`s a lying guy, a really lying guy. I think he`s a basket case.

UNIDENTIFIED MALE: There seems to be a lot of name-calling going on.

TRUMP: The World Trade Center came down during the -- you know, reign of George Bush, right? I mean, it came down.

DICK CHENEY, FORMER VICE PRESIDENT OF THE UNITED STATES: He sounds like a liberal Democrat to me.

TRUMP: If the President went to the beach, we would have been better off.

CHENEY: We did in fact keep the nation safe for seven and a half years --

TRUMP: What does that mean he kept the country safe after 9/11? What about during 9/11?




O`DONNELL: Two hundred and twenty seven years ago, President George Washington appointed John Jay, who by the way did not go to law school.

Appointed John Jay to be the first Chief Justice of the United States Supreme Court. The Senate confirmed Washington`s choice for Chief Justice unanimously without a confirmation hearing.

And within a few days of that, the Senate confirmed four more members of the Supreme Court without confirmation hearings.

That`s how easy the founding fathers thought the confirmation process should be for the president`s choice for Supreme Court Justices.

For the next 127 years, that`s generally the way it worked. A few nominees were rejected here and there.

But the rest of the time, the President nominated and the Senate routinely confirmed within a matter of days or weeks without ever having a Senate confirmation hearing.

That process of no background checks and no hearings gave us the likes of Chief Justice John Marshall and Oliver Wendell Holmes.

The system worked. The first Senate confirmation hearing, public Senate confirmation hearing for a Supreme Court nominee was not coincidentally, it was in fact for the first Jewish nominee.

And that was no coincidence that the first Jewish nominee got the first confirmation hearing.

Louis Brandeis, President Wilson`s nominee, was the -- was as the first Jewish nominee, was a bit of a shock to the system, a shock that a Senate confirmation hearing cured.

Justice Brandeis then went on to become one of the great figures in the history of American jurisprudence.

There were only two more confirmation hearings for the Supreme Court Justices in 1925 and 1938, and those were to address some rumors of scandal.

And each of those nominees was then confirmed. The longest-serving justice in the history of the court, William O. Douglas, who was also possibly the most controversial justice in the history of the court, was confirmed in 1939 by a vote of 62 to 4, and he was confirmed without a Senate confirmation hearing.

Senate legend has it that William O. Douglas sat outside the judiciary committee`s meeting room one day when his nomination was pending and Douglas passed a handwritten note to the chairman, saying do you have any questions for me?

A clerk brought that very same note back to Justice Douglas with the chairman`s handwritten one-word reply on it, that reply was "no".

Then about 15 years later, the most destructive force that has ever hit the United States Senate arrived in Washington -- television.

The most destructive senator of that time, Republican Joe McCarthy discovered television could make him famous when he held witch-hunt hearings searching for communists.


JOSEPH MCCARTHY, FORMER UNITED STATES SENATOR: Have you no sense of decency, sir? At long last, have you left no sense of decency?


O`DONNELL: After the McCarthy hearings, confirmation hearings for Supreme Court Justices became routine.

And preening by senators on camera during those hearings became routine.

And in order to pretend the hearings were actually about something the judiciary committee obtained FBI background checks on the nominees.

Committee staff then studied the nominees tax returns, and they studied every word the nominees had ever written.

Studying the stacks of material that the judiciary committee obtained for those confirmation hearings took longer and longer as the stacks of paper got bigger and bigger.

And this process has not produced better justices than Oliver Wendell Holmes and John Marshall and Benjamin Cardozo who got confirmed before the judiciary committee had any staff, who got confirmed before tax returns existed.

Well, Cardozo didn`t. They got confirmed before the FBI existed. The modern confirmation process is a completely corrupted process that bears no semblance to what the framers of the constitution had in mind.

Senate confirmation hearings of Supreme Court justices have become political TV shows in which senators from each party perform for their section of the audience.

They perform for their share of the campaign contributors who watch those hearings.

On both sides, they vote for and against nominees now based not on the nominees qualifications, but based on the nominees suspected political inclinations.

President Obama will soon nominate a Supreme Court Justice to replace Antonin Scalia.

The Senate could reasonably and faithfully discharge its duties regarding that nomination in a matter of days, as the Senate has done many times before.

Could certainly do it within a week or two. In the election year of 1912, Republican President William Taft nominated Marlon Pitney on March 13th.

A Republican-controlled Senate confirmed Justice Pitney five days later by a vote of 50 to 26. Five days.

That`s all it took in an election year. If the President nominated Attorney General Loretta Lynch or anyone else who the Senate knows well, and who was recently confirmed by the Senate, every senator could easily decide how to vote in five days without a confirmation hearing.

But that won`t happen. Not because of any Senate rule, no Senate rule prevents it. Not because of historical precedent.

Historical precedent does not lean against this. The only thing preventing the United States Senate from taking quick action on the President`s next Supreme Court nomination is America`s toxic mix of politics and television.

Joining us now, David Frum, senior editor for "The Atlantic", Jonathan Allen, head of Community and Content for "Sidewire" and a columnist for "Roll Call".

And Tom Goldstein, publisher of Scotus blog and a Supreme Court expert. David Frum, the Senate Majority leader in an unprecedented move announced shortly after Justice Scalia was pronounced dead that he absolutely will not bring any nominee by the president to a vote in the Senate.

This -- we have turned a corner in the contentious -- the modern contentious history of Supreme Court nominations.

DAVID FRUM, SENIOR EDITOR, THE ATLANTIC: Well, Lawrence, I`m going to speak to your sense of political realism. It`s no surprise that leader McConnell would do that.

Of course, he would do that. Of course he would run out the clock on a nominee by the opposing party.

What is astonishing is that he said it and that he felt it necessary to say it.

And one of the -- one of the things that is -- I don`t know whether it`s liberating or horrifying is the disappearance of the hypocrisy with which we used to surround what were political decisions.

O`DONNELL: Well, Jonathan Allen, you know, I saw a tweet Saturday night that urged -- from a Republican commentator, that urged McConnell to do this immediately.

Specifically so that the process would not be about who the President nominates, that this wouldn`t -- that you then -- voters then would not hold it against them that they were stopping any individual, they were just stopping whoever he nominated.

JONATHAN ALLEN, HEAD, COMMUNITY & CONTENT, SIDEWIRE & COLUMNIST, ROLL CALL: Yes, surely, this is done on principle, the principle --


ALLEN: That the President only has three years in his term, Lawrence, I say that sarcastically.

There`s only one qualification to be a Supreme Court Justice, and that`s that the President appoint you and the Senate confirms you.

You know, it`s the most egalitarian process there is. That said, I agree with David. I mean, there`s a situation that Mitch McConnell is in where his base would have his head if he didn`t come out and try to prevent Barack Obama from appointing a justice.

It`s a sad state of affairs that our democracy is in, and it`s not one party.

I can certainly imagine this happening if you had a Republican president in the middle of a presidential campaign going on, trying to appoint a conservative justice to the court to replace a liberal.

So, it says a lot about our dismissal of the civility and of the norms that have long guided our nation and that keep our Republic`s fabric together.

O`DONNELL: Tom Goldstein, do we have a sense about how Justice Scalia himself would privately react to this situation?

TOM GOLDSTEIN, PUBLISHER, SCOTUS BLOG & SUPREME COURT EXPERT: Well, I have to say that the justice probably really recognized that the whole system was completely broken.

That he treasured democracy. He loved the notion actually of executive power, that the president would have the authority to control nominations not only within the White House and the executive branch, but also for the judiciary.

And I think he would just really shake his head at the whole process. Now, he wouldn`t say the Supreme Court`s job was to fix it.

He`d say that was somebody else`s problem. But he would think this was shameful.

O`DONNELL: And David Frum, David Axelrod revealed over the weekend a conversation that he had had with Justice Scalia when there was a vacancy on the court in the Obama administration.

And Justice Scalia said, you know, send us someone like Elena Kagan, very specifically, send us Elena Kagan.

And so what we gleaned from that is certainly, if that`s the only evidence we have, private evidence of Justice Scalia`s thinking, is that he would want the President to act in this situation and choose who the President wanted.

FRUM: Well, I don`t know. I think of that situation -- Justice Scalia thought, well, there`s going to be a liberal, let`s get the best possible liberal and let`s also get a liberal I find personally congenial, they became good friends.

I mean it is a club. But notice what Mitch McConnell`s blanket statement did. And this is why it was dumb politics.

Because it changed the incentives for the President. If the Republicans had been cagier.

If they had been -- played their cards closer to their vest about what they wanted to do.

The incentive to President Obama would be to try to find someone he liked but who was also acceptable to the Republicans.

A kind of Democratic David Souter to get -- slip somebody by the Republicans and hope that maybe it would work.

The Republicans would know that it was doomed, they`re going to run out the clock. But the President might not know that.

Now look at the incentives facing the President. Knowing that he does not have to worry about what kind of justice this person will be, that he can treat this nomination as a pure gimme, a chance to rally his base.

He should from his point of view nominate Loretta Lynch, because what an image of the Republicans refusing to have a vote on a black woman with all of her qualifications.

That would be very powerful for a Democratic Party that is worried about voter turnout and voter mobilization.

And the result is we`re going to have a much more ugly and contentious fight than we would have if the Republicans had been a little bit more discreet about what they are planning to do.

O`DONNELL: Tom Goldstein, any indicators about who the President might choose if the President is really going for confirmation here.

I mean, there`s two ways to go. One is to just make a point and nominate someone who the President knows, probably wouldn`t get confirmed under any circumstances.

Or the other choice, which is much trickier, someone who can actually get confirmed.

GOLDSTEIN: Well, I think the White House will conclude that nobody can get confirmed, so it`s kind of a wild hypothetical.

I do think that Republicans may well decide that they have to give the person a vote and then they`ll all vote against them because it`s been suggested.

The conservative base will never allow any Republican senator to vote for the nominee.

But in the hypothetical world where they were trying to get somebody through, they probably would pick someone like Judge Sri Srinivasan of the D.C. circuit who actually, his biggest obstacle to being confirmed previously was from the left, not from the right.

And so he`s a relatively centrist candidate. But anybody that President Obama gets put up, the one thing Republicans know is that they have to defeat that nominee.

O`DONNELL: And Tom, just to stay on that, what would this -- what would the Republican speeches in opposition to him be given that he was virtually unanimously confirmed by the Senate?

GOLDSTEIN: He was in fact unanimously confirmed. The administration has two recent nominees like that.

They would say something along the following lines. First is, this is a nomination that`s going to change the direction of the Supreme Court.

So, it requires extraordinary scrutiny. We have to take a lot more time than it`s been provided to us.

We voted for him before but that was a different court, and we find him in his records, indications that he would be ideologically much more liberal and out of touch with the country.

You just make things up. As soon as the Republicans are willing to just offer a vote, then it becomes kind of too complicated for kind of ordinary Americans who are concerned about jobs and terrorism to focus on.

It`s only if the Republicans, as David was saying, refuse to have a vote at all that this really works politically very well for the administration.

So, in the end I bet, they do give the nominee a vote and then just vote the person down.

O`DONNELL: Jonathan Allen, does it -- given what Tom just said, which I think makes a lot of sense.

Doesn`t that argue for a more prominent nominee, someone like Loretta Lynch, who the public already has a certain familiarity with, so they understand who this is, who`s being rejected if that`s what`s going to happen?

ALLEN: Well, I think there are a couple of benefits to Loretta Lynch. One of which and perhaps maybe will be the guiding principle here is, she`s the person whose life would be least disrupted by this.

If she gets nominated to be a Supreme Court Justice, she doesn`t have to leave being Attorney General to do that.

She`s already been through a confirmation process recently. She knows the senators. She`s had time to be up close and personal with them.

If she were to get approved, it`s somebody the President would like to have on the bench, and if she were to be held up, it`s somebody who would -- who would probably face the least possible disruptions.

So, you know, this is -- there`s a human cost to all of this when somebody gets nominated and they know they`re being thrown into a fight that`s unlikely to be won.

Perhaps, there would be some humanity in the choice, finding somebody who both would be a good justice and somebody who if they were caught in the maw of the Senate would not see a huge disruption.

O`DONNELL: All right, we got a quick break here. Tom Goldstein, thank you very much for joining us tonight, really appreciate it.

GOLDSTEIN: Thanks so much.

O`DONNELL: Up next, Donald Trump versus the brothers Bush.


O`DONNELL: Remember that Democratic debate where Bernie Sanders called Hillary Clinton a liar, and then Hillary Clinton called Bernie Sanders a liar, and then he called her a liar.

And then she -- no, I know because it never happened. Imagine if Bernie or Hillary just used that word liar, liar against the other one even once in a Democratic debate, that would be the nuclear bomb of the Democratic campaign.

Did you lose count Saturday night of how many times Republicans called each other liars on that debate stage?

We kept count. We`re going to show it to you coming up.


O`DONNELL: In a move that we weren`t sure we would ever see, President George W. Bush came out of political retirement tonight to campaign for his brother.

The essence of his pitch for Jeb was who do you want in the presidency if the United States is attacked again?


BUSH: When Americans woke up on September the 11th, we did not know that the world would forever change that day.

I was sitting in a classroom in Florida listening to a child read. My Chief of Staff, South Carolina graduate Andy Card, whispered in my ear "a second plane has hit the second tower. America is under attack."

My first reaction is I was hot. We`re going to deal with these people. My second reaction when I was staring at this young child was that, my job became crystal clear.

And that was to protect her, her community, and her country.



On the way to Air Force 1 from that school, old Condi called me and said a plane has hit the Pentagon.

I felt the first one was an accident, the second was attack, and the third one was a declaration of war.

I became something -- I became something that no president should ever want to be, a war time president.

And I made a lot of tough calls. Every one of them with that child`s image in my mind -- to protect her and the country she`s fortunate enough to call home.


I`ve seen Jeb in action. He`ll be a strong and steady hand when confronted with the unexpected.


O`DONNELL: Joining us now, Robert Costa, national political reporter for "The Washington Post" and an Msnbc political analyst David Frum is back with us.

Robert Costa, what is the calculation by the Bush campaign here? Was this a long-planned unveiling of George W. Bush in South Carolina or have events forced this?


You talk to the Bush campaign and you get a sense that for months, the former Florida governor has been trying to run his own campaign, he hasn`t even used his family`s surname in his campaign ads or on his signs.

But right now is a moment where he has to win. This is a state that helped revive his brother`s campaign in 2000, that supported President George W. Bush throughout his administration.

And if Jeb Bush cannot win here in South Carolina on Saturday, it`s very hard to see a path forward.

So now, they`re embracing the Bush legacy, thinking that that hawkish impulse that still resides, especially in the South Carolina electorate, could help the governor.

O`DONNELL: Let`s listen to how George W. Bush went directly after Donald Trump without mentioning Trump`s name.


BUSH: Strength is not empty rhetoric. It is not bluster. It is not theatrics. Real strength, strength of purpose comes from integrity and character.

And in my experience, the strongest person usually isn`t the loudest one in the room.




O`DONNELL: David Frum, no question who he was talking about there.

FRUM: Right. Well, look, the Bush family has a special feeling about South Carolina. It saved the elder Bush`s nomination in 1988.

It saved the younger Bush`s nomination in 2000. But it`s a different state today. South Carolina is the second largest net in migration state of any of the states of voters from other places.

So, a huge portion of the electorate in 2016 wasn`t there in 2000. It`s not a southern state as it was.

These are people from the Midwest and the north. And it`s not a state that is driven as it used to be by patronage politics.

And the way you won South Carolina in 1988 and to a lesser degree but still, you know, real terms in 2000, was by reminding people of favors they might need or want from state government.

And the state -- the state government was controlled by people friendly to the Bush family.

It`s a different place today, and I don`t know the connection between the Bush family and the state is going to be what it was.

O`DONNELL: George W. Bush kept going after Donald Trump here, and let`s listen to him talking about understanding why voters are angry and frustrated.

Let`s listen to what he said about that.


BUSH: I understand that Americans are angry and frustrated. But we do not need someone in the Oval office who mirrors and inflames our anger and frustration.


We need someone who can fix the problems that cause our anger and frustration, and that`s Jeb Bush.



O`DONNELL: Robert Costa, the estimates I heard were about 3,000 people for this. That is maybe Jeb Bush`s biggest crowd of the campaign.

It used to be what we thought was a big crowd in presidential campaigning before Bernie Sanders, Donald Trump, and for that matter Barack Obama eight years ago.

But tonight, according to that audience, this is about as good as it`s going to get for Jeb Bush in South Carolina.

COSTA: Tonight`s event for Governor Bush, it felt like a homecoming for him and his associates.

They were excited about seeing the former president. They thought this is someone returning to the stage will help remind Republican voters to come back into the fold, to come back toward the Bush family.

But Lawrence, this is a very different party than the party George W. Bush left in 2009.

This is a party that has endured a tea party wave, that has become less ideological, more populist, more frustrated with the institutions, including the institution of the Republican Party.

And so there`s an open question of just how many voters are really willing and excited about coming back to the Bush family.

When you look at the popularity of the Iraq war, even within Republican ranks, there are questions about whether it was the right enterprise at the right time.

Respect for the president, respect for George W. Bush, you see his popularity still high, but not entirely for the decisions he made.

O`DONNELL: And David Frum, this is a former president who the frontrunner for the Republican nomination has said should have been impeached.

FRUM: Yes --

O`DONNELL: It`s a former president who the frontrunner said in the debate Saturday night lied and lied about -- sent America to war over a lie.

FRUM: It`s astonishing, isn`t it? I mean that no Democrat, not even Howard Dean, not General Wesley Clark, who was so hot in 2004.

No Democrat has talked about George Bush as harshly as Donald Trump has done.

And how much of that is calculated? How much of that is a ploy by Donald Trump? Because Donald Trump cannot win a two-person race.

If it`s Donald Trump against Marco Rubio or Donald Trump against Ted Cruz, Donald Trump loses.

But if he can goad Jeb Bush into staying, he keeps the race as a three, four, five-person race and that`s where he racks up delegates.

Something like what? Eleven -- Bob will know better than me. About 1,100 delegates will be chosen before we ever get to Florida and if Don -- and that is Donald Trump`s moment.

O`DONNELL: David Frum, thank you very much for joining us tonight, really appreciate it.

FRUM: Thank you.

O`DONNELL: Up next, the most uncontrollable liar in the history of presidential campaigning thinks the other guys are lying more than he is. That`s next.



DONALD TRUMP, (R) PRESIDENTIAL CANDIDATE: I have never, ever met a person that lies more than Ted Cruz. I have never, ever seen anything like it. As I said, he is the single worst liar I have ever seen.


O`DONNEL: That was Donald Trump on his liar, liar campaign in Charleston, South Carolina today. Four years ago, the republican candidates actually got through a bunch of debates without ever calling each other liars. But, Saturday night, they could not stop using that word. First Donald Trump went after George W. Bush, who he considers virtually indistinguishable from his opponent Jeb Bush.


TRUMP: I want to tell you, they lied. They said there were weapons of mass destruction. There were none. And, they knew there were none. There were no weapons of mass destruction.


O`DONNELL: And, then Marco Rubio hit Ted Cruz.


MARCO RUBIO, (R) PRESIDENTIAL CANDIDATE: Look, this is a disturbing pattern now, because for a number of weeks Ted Cruz has just been telling lies. He lied about Ben Carson in Iowa. He lies about Planned Parenthood. He lies about marriage. He is lying about all sorts of things.


O`DONNELL: And, for his part, Ted Cruz kept it remarkably classy, by refusing to say that Marco Rubio lied. He just said that what Marco Rubio said was absolutely false. Ted Cruz never used the word "lie" in any form. Bu, that did not stop Donald Trump from calling him a liar.



TRUMP: You are the single biggest liar -- you probably are worse than Jeb Bush. You are the single biggest liar.


O`DONNELL: You notice Trump threw Jeb Bush in there while he was hitting Ted Cruz. Donald Trump showed us what he would be like as a debate moderator. He would have only one question for Ted Cruz.


SEN. TED CRUZ, (R-TX) PRESIDENTIAL CANDIDATE: I did not nominate John Roberts. I would not have nominated --

TRUMP: You pushed him. You pushed him.

CRUZ: I supported him --

TRUMP: You worked with him and you pushed him. Why do you lie?

CRUZ: Mr. Donald --

TRUMP: Why do you lie?

CRUZ: Adults learn not to interrupt people.

TRUMP: I mean why do you lie?



O`DONNELL: And the wildest liar in the video recorded history of presidential campaigning went after Jeb Bush, once again when Jeb Bush talked about Donald Trump`s multiple business bankruptcies.


JEB BUSH, (R) PRESIDENTIAL CANDIDATE: Because he could use the legal system.

TRUMP: Let me respond. That is another lie. I never went bankrupt. It is another lie. No, but it is a lie. This guy, he does not know what he is talking about.

BUSH: But this is the basis of this campaign. We need someone with a proven record --

TRUMP: It is a lie.


O`DONNELL: Now, notice that there are no arrows to or from John Kasich or Ben Carson down at the other end there. Those guys stayed out of the liar line of fire. The liar, liar campaign continued today.


CRUZ: I like both Donald and Marco. But, it is a very odd reaction when somebody points to their record, points to the words that came out of their own mouth, for them simply to respond by yelling and screaming, "Liar liar liar." Truth matters. And, we are not in grade school where you just get to say, "Liar liar pants on fire" and not respond to the substance.


RUBIO: I am not saying things that are not true. And, something that is not true that you keep saying is, there is no other word for it but lie. I mean, he has lied about my position on marriage, lied about my position on Planned Parenthood, lied about his own record on immigration. And, you cannot just make things up.


O`DONNELL: Joining us now, Maria Teresa Kumar, the President and CEO of "Voto Latino and host of Changing America on Shift by MSNBC and Robert Costa still with us. Maria Teresa, that Ted Cruz going on about liar liar pants on fire and all that, reduces the entire campaign -- he may think that, that works as a way of mocking Donald Trump. But, it makes the entire campaign of all of them look ridiculous.

MARIA TERESA KUMAR, PRESIDENT OF "VOTO LATINO": Well, I think a lot of folks are not going to remember the campaign of 2006 when the congress lost -- the republicans lost the house back to the democrats. In exit polls, the number one reason that people actually basically ousted the republicans was because they did not trust them. They actually said that they thought they were -- the American people thought that they were lying to them.

So, this word, this idea of trust, this idea that you are lying to me, it weighs very heavily on the electorate. And, so, I think that the Republican Party has a bigger problem because I think right now if you were to poll the majority of Americans and say, "Do you think any of these candidates are telling you the truth?" The majority of them are going to say, "You know, I do not."

O`DONNELL: I want to show an example of how having multiple players on the stage helps Donald Trump so much, because no matter what he says, no one lies like Donald Trump. He breathes lies. An, they are unnecessary lies. They just --

KUMAR: You are joining in on the debate now, Lawrence.


O`DONNELL: No, they come constantly. Listen to him talking about losing, as he put it, losing hundreds of friends on 9/11. Let us listen to this.


RUBIO: George W. Bush enforced what the international community refused to do, and again, he kept us safe, and I am forever grateful to what he did for this country --

TRUMP: How did he keep us safe when the World Trade Center came down?


TRUMP: The world -- excuse me. I lost hundreds of friends. The world Trade Center Came down during the reign of George Bush. He kept us safe? That is not safe.


O`DONNELL: Now, in a one-on-one debate, you could isolate that comment about losing hundreds of friends and ask him about that. But, in the space of time they have there that really could not happen. And, Robert, I tweeted immediately that he was lying about that, that he did not lose hundreds of friends on 9/11.

And, the next morning he switched it. He moved it back to many, many friends. We do not have any evidence right now about what friends, if any, Donald Trump lost on 9/11. But, that is the kind of stuff that he does constantly without anybody trying to check him.

ROBERT COSTA, MSNBC POLITICAL ANALYST: It is striking how Donald Trump has used 9/11 in his campaign, how he has spoken about 9/11. In the last debate, of course, he is really taking himself away from the republican mainstream and the republican establishment more specifically in how they interpret the Iraq war, saying 9/11 was really partly a republican responsibility, that there was not enough people on watch.

And, that is really more in the Rand Paul libertarian wing of the party. That view is now creeping into the more mainstream because the front-runner is espousing it. But you could also say 9/11, Trump at the previous debate when he talked about New York values and interacted with Senator Cruz that was one of his better moments.

So, it is just -- it is interesting to see how this is playing such a central role in his campaign in both defining where he is on foreign policy and understanding who he is as a person. But, you are right, on the fact check, Lawrence, I have not spoken to Donald Trump about who specifically he knew who was lost that day.

O`DONNELL: Maria Teresa, I saw a lot of cheering for Donald Trump from liberals Saturday night, live-tweeting that debate when he went after the Bush administration on 9/11 saying what others have said, but no republican is ever said before. How can you say the Bush administration kept us safe if 9/11 happened on their watch?

KUMAR: Well, I think part of it is because the American memory unfortunately is very short and you have a lot of folks, a lot of republicans who seem to forget that it did happen under a republican administration. And, they want to actually shoulder the burden of the war and the cost of war fully on the shoulders of President Obama and that is just not the case.

But, I think what the Republican Party really now has a bigger problem. Trump looks likes he is going to win South Carolina. They are going to basically have to go behind closed doors and try to figure out who of those left on stage yesterday are basically going to be in a position to coalesce under one candidate?

Because if they keep having the same candidates right now, Jeb, Marco, Cruz, and Kasich and Carson, if they keep splitting themselves that way, Trump actually has a chance of being the nominee. And, I do not think that is what they want. The establishment, basically, has to coalesce and broker a deal and get themselves behind one candidate.

O`DONNELL: Robert Costa, quickly, is it too late to make that move? I mean even assume for a moment all the egos could be buried in one room and they could emerge with one person to go out there and carry the challenge against Trump the rest of the way, would it be too late for that move to be made now?

COSTA: It is not too late because this could be an extended fight, Lawrence, over the delegates and Trump still needs to get over 1200 to get that nomination. So, there is talk in public that used to be private about a brokered convention. But, if he storms through South Carolina and goes into the deep south, it has to be a two-person race or close to it by mid March or else it is going to be very difficult to see how Trump would be stopped.

O`DONNELL: Robert Costa, thank you very much for joining us tonight. Really appreciate it.

COSTA: Thank you.

O`DONNELL: Just five days away from the Nevada caucus, and the democratic polls there are showing what we showed. What we saw happen before Iowa, a real tightening of the race there. It is coming up.



UNIDENTIFIED FEMALE REPORTER: Seems like you are nervous there, about Nevada right now? Should they be?

BILL CLINTON, (D) FORMER U.S. PRESIDENT: It is a caucus. Any time you have got a caucus, it is more unpredictable.


O`DONNELL: Translation, the Clinton campaign is nervous. With just five days until the Nevada democratic caucus Bill Clinton stepped in for Hillary Clinton at a Florida rally while she decided to stay in Nevada in hopes of swaying more voters in her direction.

In the latest poll, Hillary Clinton and Bernie Sanders are tied at 45 percent in Nevada, 9 percent undecided. And, according to the latest forecast by Nate Silver`s FiveThirtyEight blog, Hillary Clinton and Bernie Sanders both have a 50 percent chance of winning Saturday`s Nevada caucus.

Back with us, Jonathan Allen and Maria Teresa Kumar. Maria Teresa, that FiveThirtyEight number saying 50 percent chance for each one of them is pretty striking.

KUMAR: Well, it is shocking since Hillary has had such a machine there since 2008. I have to share with you, I was in Nevada on Thursday and I was talking to two young Latino business owners and I asked them if they were going to caucus. One said yes because of the work that Voto Latino is doing. One said no. My follow-up question was, "Has anybody reached out to you from the campaigns?"

They said no one had reached out to them. So, I think they are going after individuals that are usual suspects to caucus, but they are not actually trying to identify new people to bring in. And, that is going to be the strategy I think that Bernieie Sanders does much better than Hillary.

O`DONNELL: Jonathan Allen, if this outcome is roughly a 50-50 outcome for Nevada what is the importance of that in this story?

JONATHAN ALLEN, CO-AUTHOR OF NRC: Well, it means Bernie Sanders still has momentum and it means that he has got another caucus state that he has done well in. And, it will take away some of that mystique of Hillary Clinton being expected to do so much better among Latino voters and in states with significant minority populations. And, it may start to have a cascading effect.

Look, I have talked to sources in Clinton world of late about Nevada and none of them are trying to talk about Nevada. They are worried about it. They would much rather talk about South Carolina, where they believe a big African-American turnout is going to help Hillary Clinton win big there. But, they know even though they are not talking about it that Nevada comes first.

O`DONNELl: Jonathan Allen and Maria Teresa Kumar, thank you both for joining us tonight. Appreciate it.

ALLEN: Take care, Lawrence.

O`DONNELL: Thank you. Coming up, Donald Trump is at it again. Threatening to sue Ted Cruz.



O`DONNELL: America`s opening to Cuba is now just big enough to drive a very small tractor through it. An Alabama-based tractor company was notified by the U.S. Treasury Department last week that they will be able to open and operate a factory in Cuba. This is the first significant U.S. business investment in the country since Fidel Castro took power more than 50 years ago.

The small company hopes to begin operation in 2017. They intend to assemble approximately 1,000 small tractors per year to sell to Cuban farmers. Coming up, Donald Trump`s latest threat to Ted Cruz.


O`DONNELL: We have got something hot off the campaign wire for you. Minutes ago at Michigan State University this happened.


UNIDENTIFIED MALE SPEAKER: OK. Yes, sir. Yes. Yes, sir. The Jack Black of Michigan State.


DR. ROBERT LADUCA, LBC ASSOCIATE DEAN: Hi. I am Dr. Robert LaDuca, Associate Dean of the Lyman Briggs College of Science and Chemistry.

UNIDENTIFIED MALE SPEAKER: Nice to see you all. See you the next time. Thank you.


O`DONNELL: OK. First of all, Jack Black played a teacher in "School of Rock" and surely he could play an associate dean scientist guy at Michigan State. OK. A mad scientist. We will be right back.



TRUMP: I am going to bring a lawsuit because in my opinion based on what I have learned over the last two, three days from very top lawyers. He does not even have the right to serve as president or even run as president. He was born in Canada.


O`DONNELL: Now, that Donald Trump is campaigning far from the Canadian border, he is once again going after Ted Cruz`s eligibility to serve as President of the United States. While he was campaigning to win the New Hampshire primary, Trump barely mentioned Ted Cruz`s Canadian roots since there are so many families in New Hampshire with histories on both sides of the Canadian border.

Joining us now, Rick Hassan, Professor of Law and Political Science at the University of California, Irvine. Professor Hassan, there is Donald Trump threatening to sue again. He does this all the time. Most of the time, he does not sue when he threatens to sue. But, in this instance, is he an injured party who would therefore have standing to bring a lawsuit questioning Ted Cruz`s citizenship eligibility to be President of the United States?

RICH HASSEN, LAW PROFESSOR AT UC IRVINE: He may well have standing. In order to get into federal court, you got to show that you have an injury. And, there are cases including in the 9th circuit, if he wants to sue out here in the west that say that if you are going to have to spend more money to compete against someone, who is running against you, that gives you enough of a stake to be able to bring your lawsuit, trying to get somebody kicked off the ballot.

O`DONNELL: Now, can he forum shop? It had not occurred to me before that he might be able to choose, which federal district he wants to bring this case in.

HASSEN: Well, I think what he would probably do is bring a suit against either a secretary of state or a local election official, who has decided to put Ted Cruz`s name on the ballot, Ted Cruz is qualified to appear on the ballot. And, he is going to say that decision is wrong. You are not allowed to do that,.

And, I think he could -- he could sue in state court too and in state court the standing rules are even looser in some states. So, yes, I think he can go just about anywhere in the country where Cruz is going to run for election and where the election has not already taken place.

O`DONNELL: Now, let us talk about the speed of this kind of litigation since what is at issue is so important, so crucially important for the future of the country. How fast could this move through the appeals process to the United States Supreme Court?

HASSEN: Well, to begin with, he may be too late in suing in some places. Like Nevada we are having a caucus coming right up. It is too late to sue there. He got a time that is just right. He got to be in enough time to change the ballots. But, courts often put election litigation on a fast track.

And, when they put it on the fast track, it could get from a district court to an appeals court and even to the Supreme Court in a matter of weeks. It is possible. Of course, at the Supreme Court, we do not know what would happen these days.

O`DONNELL: Well, I mean, let us speculate on this. This is a completely different conversation than you and I would have had last week about this. This would now go to a 4-4, possibly 4-4 opinion in the Supreme Court. What happens in this new scenario in the eight-person Supreme Court?

HASSEN: Well, I do not know that this is an issue that the court would divide 4-4 but if they did divide 4-4, then whatever the last court, the lower court, could be the 9th circuit or it could be a state Supreme Court or another circuit, whatever they decide would then be final. When the court cannot -- when the court divides evenly, it is the lower court ruling that stands.

O`DONNELL: So, if Trump were forum shopping, which circuit in the country do you think would be most favorable to him in this situation?

HASSEN: Well, you know, there have been some arguments saying that if you take an originalist view of the constitution, the kind that Justice Scalia took, that you might say that Cruz is not eligible. So, you might look in more conservative circuits.

You might look in the 5th circuit where Texas is, where there are a number of conservative judges. That might be where I would look if I had to pick a federal court to go after. But there may be a state court that will be even more hospitable to such a claim.

O`DONNELL: And, is the state court -- but is the state court route a slower route to the Supreme Court?

HASSEN: Well, again, all of these things there are procedures for emergency kind of hearing election appeals. And, so, I think -- remember, Bush versus gore came from a state court, it went up in a matter of days. So, it could happen.

O`DONNELL: Yes. Yes. Rick Hassen, this one is all the more fascinating this week than it was last week now that we have that eight-person Supreme Court to ponder as this thing could be head there. Professor Richard Hassen, thank you very much for joining us. I really appreciate it.

HASSEN: Thank you.

O`DONNELL: Chris Hayes is up next.