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updated 1/6/2014 11:47:23 AM ET 2014-01-06T16:47:23

HARDBALL
January 2, 2014

Guests: Michael Tomasky, Ruth Marcus, Clarence Page, John Brabender, Steve McMahon, Brian Boitano

MICHAEL SMERCONISH, GUEST HOST: Is the country about to make a left-hand
turn?

Let`s play HARDBALL.

Good evening. I`m Michael Smerconish, in for Chris Matthews.

Leading off tonight, as Bob Dylan famously sang, you don`t need a
weatherman to know which way the wind blows. And for the Democratic Party,
the wind isn`t just blowing to the left, it`s gusting.

Practically overnight, Elizabeth Warren gained folk hero status among
progressives thanks to a fervently populist and anti-Wall Street message,
and her allies showed some serious political muscle this summer by taking
on the White House and winning. The issue, President Obama`s top choice to
lead the Federal Reserve, Larry Summers. Progressives didn`t like him.
The president did. Well, guess who`s running the Fed right now? Because
it isn`t Larry Summers.

Now the president is hitching a ride with the left-leaning base, making
income inequality and raising the minimum wage, two hallmarks of the
progressive cause, a centerpiece of his 2014 agenda. And it doesn`t stop
there, not by any means. Just yesterday, after Democrats were out of power
for two decades, New York City officially handed the mayoral reins to Bill
De Blasio, an early underdog who ran away with the race thanks to a deeply
progressive campaign.

But that`s not what grabbed headlines at yesterday`s swearing in-ceremony.
Instead, the focus turned to the guy reading De Blasio the oath of office.
That would be Bill Clinton, as his wife Hillary looked on from just a few
feet away.

As Dan Balz writes in "The Washington Post," "It isn`t often that the
swearing-in of a new mayor of New York draws national television attention.
But then, it isn`t every day that you see a mayor sworn in with a former
president of the United States with prospective presidential candidate also
on stage."

You could say that the Clintons know full well which way the wind is
blowing in the Democratic Party. The question is, with 2016 fast
approaching, what does Bill, and more importantly, Hillary, do about it?
And where does the rapidly growing energy of the left-leaning populist
movement go from here?

Michael Tomasky is a special correspondent with the DailyBeast. Joan Walsh
is an MSNBC political analyst with Salon.

Michael, Amy Chozick in "The Times" said today that until recently, this
was a lovefest that was one-sided. The cynics among us want to know what
accounts for all of the love among De Blasio and the Clintons right now?

MICHAEL TOMASKY, DAILYBEAST: Well, I think they`re mutually useful to each
other. And not to be completely cynical about it, Michael, I do think they
like each other. You know, Bill De Blasio did work on her first Senate
campaign in 1999 and 2000. There`s a lot of debate about what exactly his
role was, but he worked hard on that campaign. And I think she came away
from that campaign with good feelings about him.

But I think there`s no question that the Clintons accepted this role --
President Clinton accepted this role and Hillary Clinton to be there partly
to show, to send a signal, a symbolic message, that they are open to this
new populism and that they want to embrace it to some extent. Going
forward how much, we`ll see.

SMERCONISH: Joan, when you think of progressivism and populism, Bill
Clinton, the guy who spawned a centrist movement in his own party, isn`t
exactly the first person to come to mind. But at yesterday`s swearing-in
ceremony, there was little contrast between him and the much more
progressive De Blasio.

Here, for example, is De Blasio.

(BEGIN VIDEO CLIP)

BILL DE BLASIO (D), NEW YORK CITY MAYOR: We are called to put an end to
economic and social inequalities that threaten to unravel the city we love.

(APPLAUSE)

DE BLASIO: So today, we commit to a new progressive direction in New York.
When I said I would take dead aim at the tale of two cities, I meant it.

(END VIDEO CLIP)

SMERCONISH: And here`s President Clinton yesterday.

(BEGIN VIDEO CLIP)

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: I strongly endorse
Bill De Blasio`s core campaign commitment, that we have to have a city of
shared opportunities, shared prosperity, shared responsibilities. We are
interdependent. Look around. We can`t get away from each other. We have
to define the terms of our dependence.

(END VIDEO CLIP)

SMERCONISH: Joan Walsh, it`s wonderfully vague. I`m not sure what it
means -- "We have to define the terms of our dependence." What`s he saying
there?

JOAN WALSH, SALON.COM: Well, look, I think he`s saying this is -- this has
been his message going back to his presidential campaign, that we`re all in
this together.

I think, Michael, we can do a lot to exaggerate the distance between these
two Bills. They are both men of their time. They are both Democrats of
their time.

Bill Clinton came from the left, quite honestly. He cut his teeth on
George McGovern`s failed, quixotic but wonderful presidential campaign. He
was a man of the anti-war movement and of the Civil Rights movement. He
made a lot of enemies -- he made the right enemies in Arkansas. He made
enemies of the segregationists.

Now, yes, he did move to the center. He was a reaction to Democrats losing
the White House four out of five times as he came of age. And he did pull
his party to the center, but I think his values have always been more on
the progressive side.

Bill De Blasio likewise, you know, was a supporter of the Sandinista
revolution. That was not terribly radical in the early 1980s, but it was
somewhat radical. Then he went to work for Bill Clinton in his -- in HUD
and went to work for Hillary Clinton. So both men moved to the center.

Now, Bill De Blasio`s moment is a moment for the left, which allows him, I
think, more latitude, but I wouldn`t say that either philosophically or on
policy there`s a huge gulf between these two men, or between Bill De Blasio
and Hillary Clinton.

SMERCONISH: Well, Michael Tomasky, I guess what belies the theory that
this is driven by politics and a view toward 2016 is the idea if that were
the case, it would seem to be a primary strategy, right, that the Clintons
want to tack to the left so as to curry favor among primary voters. But I
say to myself, if she`s in, she`s really not going to have any primary
opponents of significance. Is that how you read it?

TOMASKY: Not quite. Not quite. If Elizabeth Warren runs, she`s a person
of significance. There`s not much question about that. And she would be a
candidate of significance. And you know, the depth of passion for her on
the Democratic Party`s left side is really quite profound. And so I think
Hillary Clinton knows that.

And I also think, you know, I don`t think everything -- we -- we tend to
attribute everything to political calculation. But it`s also possible, you
know, that Hillary Clinton and Bill Clinton just genuinely believe and
understand that 2016 is not 1992, and that in 1992, the Democratic Party
needed certain prescriptions that don`t necessarily apply in 2016. And so,
you know, I don`t think it`s entirely cynical, by any means.

SMERCONISH: Well, to your point in terms of the change in times -- this
Democratic Party is a far cry from what the Clintons knew in the `90s. But
where does Hillary make her move to prove her progressive bona fides? And
how much is too much?

Here`s what Politico has written. "As the Clintons looked on, the
inauguration offered plenty of reminders of just how much more liberal the
Democratic Party`s base has become since the era of Clinton centrism in the
`90s. One chaplain, who De Blasio acknowledged by name in his own speech,
described New York City as a plantation. Singer and Civil Rights crusader
Harry Belafonte denounced the stop and frisk policy of the Bloomberg era.
And De Blasio himself made it clear that he would not back away from a
pledge to reform that policy."

While it`s early, Hillary is going to have to be careful not to stray too
far left. Her numbers took a bit of a hit among independents in the fall.
In April, 46 percent of independents viewed her in a positive light. In
October, that number had dropped to 35 percent.

Joan Walsh, how does she maintain her good stead among progressives on the
left while still being able to pivot in a way that wins independents and
centrists?

WALSH: I think she cannot afford to make the mistake she made in 2007 or
2008, Michael. She cannot neglect the progressive base. She cannot run a
candidacy that is looking forward to November of 2016 and ignore January
and February and March of 2016. She`s got to consolidate her standing
within the party, and she`s got to let the general election, should she get
there, sort itself out later.

And I think that she has a talent -- certainly, her husband has a talent --
for making populist issues less scary to the middle class. She had a real
draw with the white working class in the 2008 primaries.

Now, we spent a lot of time debating how much of that was racism.
Certainly, there was some of that. But it wasn`t exclusively that. She
had -- she really was, for part of that primary campaign, the populist
candidate.

So I think she can do that again. And by 2016, the three of us don`t know
what we`re going to be sitting here talking about, but I can guarantee you
that there will continue to be an emphasis on income inequality and the
tale of two cities and tale of two nations. And she is going to have to
talk to independents about that because they`re worried about it, too.

SMERCONISH: Well, on that issue, for the progressive movement, the near-
term action is focusing on income inequality, as Joan says.

Here`s Bill Clinton yesterday, talking yesterday about the economics of
populism.

(BEGIN VIDEO CLIP)

CLINTON: This inequality problem bedevils the entire country, and I can
tell you from my work, much of the world. But it is not just a moral
outrage, it is a horrible constraint on economic growth and on giving
people the security we need to tackle problems like climate change. We
cannot go forward if we don`t do it together.

(END VIDEO CLIP)

SMERCONISH: The politics of that message has put a spotlight on the issue
of raising the minimum wage. And for the Democratic Party, it`s one of the
ideal issues that unites their ranks but divides Republicans.

Listen to this. According to a recent NBC/"Wall Street Journal" poll, an
overwhelming majority of Americans favor raising the minimum wage to $10.10
an hour, a substantial increase from the current $7.25.

Republicans -- they`re basically split down the middle, 47 percent favor
it, 50 percent oppose it. And I thought this was remarkable. Even the Tea
Party, which is typically unified on most economic issues, are showing
signs of division, 45 percent favor, 55 percent oppose.

The Economic Policy Institute estimates that raising the minimum wage to
$10.10 would boost wages for nearly 30 million people. That`s about 18
percent of the entire U.S. labor force. They also find that it would
disproportionately help women and poor families.

Michael Tomasky, is that the embodiment legislatively of what we`re talking
about, what might be an address of this income inequality?

TOMASKY: Yes, that is the embodiment right now, Michael, and in the
foreseeable future. Also, this vote coming up in the Senate next Monday on
the unemployment benefits, where Democrats are probably holding the line
and seeing if they can get five or so Republicans to join them to make it
pass. But yes, the minimum wage is the main thing.

But to return to Bill Clinton`s remarks, I thought he said a really
interesting thing, and I thought he hit it, and on this question of how
Hillary Clinton might bridge this gap between appealing to people on the
left and appealing to people in the center.

If you tie income inequality to growth, not just to fairness, but to growth
and say a more equal society and a more equal economy is a better way to
grow our economy, that`s a message that I think can resonate with all
groups.

SMERCONISH: Michael Tomasky, Joan Walsh, thank you both, as always.

Coming up: Patriot or traitor? Edward Snowden has been living in exile in
Russia because of his NSA leaks, and many Americans would be happy if he
never came back. Others are saying it`s time offer him clemency or a plea
bargain. We`re going to have that debate.

Plus, here`s one that you may have missed over the holidays. "The New York
Times" reported that al Qaeda had nothing at all to do with the Benghazi
attacks, and that, yes, the anti-Islamic video did play a role. So how has
the right reacted? Well, by claiming the story was a whitewash designed to
clear Hillary Clinton of any responsibility.

Also, Brian Boitano joins us. He`s the Olympic gold medal figure skater
who`s joining Billie Jean King in Russia for the Sochi Olympics, where many
Americans are protesting Russia`s treatment of gays.

And want to find out whether you drink like a Democrat or Republican? It
turns out that you are what you drink, at least politically.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Here`s the good news for President Obama`s poll numbers. They
can only get better. The president starts 2014 with his approval rating
upside down. According to HuffingtonPost`s pollster Trend Line, just 41
percent approve of Mr. Obama`s job performance, versus 54 percent who
disapprove.

Now, that`s basically a complete reversal from a year ago, shortly after
the election, when the president enjoyed a healthy positive rating. The
two lines crossed in May, and they haven`t come close since.

We`ll be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

EDWARD SNOWDEN, FORMER NSA CONTRACTOR: The conversation occurring today
will determine the amount of trust we can place both in the technology that
surrounds us and the government that regulates it. Together, we can find a
better balance, end mass surveillance and remind the government that if it
really wants to know how we feel, asking is always cheaper than spying.

(END VIDEO CLIP)

SMERCONISH: Welcome back to HARDBALL. That was former NSA contractor
Edward Snowden`s Christmas message, where from Russia, he`s been granted
temporary asylum through August. But despite his self-assurance and his
declaration of, quote, "mission accomplished" last week, Snowden`s future
is still uncertain. He`s charged with espionage and theft by the United
States Justice Department and he remains a fugitive on the run.

And while the White House denied Snowden`s plea for clemency back in
November, pressure to negotiate with the rogue leaker is mounting. In an
op-ed (sic) published today, "The New York Times" editorial board came out
in favor of striking a deal with Snowden.

Quote, "Considering the enormous value of the information he has revealed
and the abuses he has exposed, Mr. Snowden deserves better than a life of
permanent exile, fear and flight. He may have committed a crime to do so,
but he has done his country a great service. It is time for the United
States to offer Mr. Snowden a plea bargain or some form of clemency that
would allow him to return home."

With us now to discuss this development in the ongoing Snowden saga is
Clarence Page of "The Chicago Tribune" and Ruth Marcus, a columnist with
"The Washington Post."

And Ruth, your piece, entitled, "Edward Snowden the insufferable
whistleblower," is not as sympathetic as "The Times." You think he should
face...

RUTH MARCUS, "WASHINGTON POST": Not exactly.

SMERCONISH: ... the music and wrote, "If Snowden is such a believer in the
Constitution, why didn`t he stick around to test the system the
Constitution created and deal with the consequences of his actions?"

Go ahead and flesh that out.

MARCUS: Sure. Edward Snowden shouldn`t get clemency, and he`s not going
to get clemency. You can kind of hold "The New York Times" tickertape
parade.

He shouldn`t get clemency because he went into a job intending to steal
secrets. He promised, he signed a contract to keep those secrets.
Instead, he stole them. He revealed them.

After he did that, or before he did that, he left the country instead of,
like I said, sticking around to face the music, unlike, for example, Daniel
Ellsberg, who allowed himself to be -- came forward and allowed himself to
be subjected to prosecution.

And while I think that "The New York Times" is right that there has been
some value in the public discussion and the revelations that Snowden has
revealed, there has also been serious harm. And the notion that we would
grant him clemency for violating the trust of the United States wouldn`t
just be ridiculous to reward Edward Snowden for being a fugitive from
justice, it would encourage every other...

SMERCONISH: Well, to that end...

(CROSSTALK)

MARCUS: ... who thinks about spilling government secrets.

SMERCONISH: When I read it this morning, that was the first reaction I
had. What kind of a precedent do we set? Because now you`re empowering
everyone who works in the intelligence field, the military-industrial
complex, call it whatever you`d like, where if they perceive there`s an
injustice, some kind of a constitutional violation, they can step forward,
put everything on line.

Clarence, what of that risk?

CLARENCE PAGE, "CHICAGO TRIBUNE": Well, I`m concerned about the precedents
that have already been set, Michael. Let me say, I love Ruth. I love her
column. I admire her work. And this one was very well argued. I just
happen to disagree with it.

I think that Mr. Snowden has done a favor for many people, including
President Obama, who didn`t know a lot of things going on in his own NSA
until Snowden initiated the actions that led to the investigations that are
currently going on.

I think he should very carefully consider not just clemency but sending
Snowden a thank you note.

SMERCONISH: Ruth, to his point, I mean, where the president wasn`t aware -
- allegedly, reportedly -- that we were eavesdropping on foreign leaders,
doesn`t that speak to a program that was lacking in oversight, and
therefore he`s done a public solid (ph)?

MARCUS: Well, absolutely, it speaks to a program that was lacking in
oversight. I think it is possible -- and I`m going to send love back at my
friend and colleague, Clarence Page...

PAGE: Thank you, Ruth!

(LAUGHTER)

MARCUS: But -- we`re going to have a little lovefest here.

(LAUGHTER)

MARCUS: But I think that you can hold two ideas in your head at once, that
Snowden did something that I think was really disreputable and dangerous,
to take this action on himself to decide what is fair and free and safe and
not dangerous to leak.

And you can say that the NSA has been -- has done itself and the country a
terrible disservice by not being as transparent as they could be about what
they have been up to, by taking the capabilities that they have to help
keep us safe and exploiting them to maximum and ridiculous levels, for
example, spying on foreign leaders.

(CROSSTALK)

SMERCONISH: Here`s what the public says.

MARCUS: And it`s completely clear that there`s one more thing that -- that
the president has also failed to and his folks at the White House have
failed to exert adequate oversight...

(CROSSTALK)

SMERCONISH: A majority of Americans agree that Snowden should face
criminal charges. A November "Washington Post" -- your paper -- ABC News
poll asked if Snowden should be charged with a crime for disclosing NSA
secrets.

And 52 percent responded that they supported criminal charges for Snowden,
38 percent opposed.

Clarence, I look at that data and I say, you know, this is one of those
rare issues where you have President George W. Bush, President Obama, the
Republicans who control the House, the Democrats who control the Senate,
and the vast majority of judicial opinions, not all of them, all upholding
the programs that he opposed. In the politically polarized times in which
we live, that`s remarkable.

PAGE: Well, I think the judicial opinion has been deeply divided.

I wasn`t be surprised if it doesn`t go to the Supreme Court because of the
diametrically opposed opinions coming up from the lower courts. Also
public opinion can shift and is shifting. I have shifted my opinion, by
the way. I think others will too when they separate the Snowden case from
the Bradley Chelsea Manning case, if you will, who I think acted much more
irresponsibly in releasing his or her information.

Snowden, I think, has been much more responsible, if you will. And the
question is, do we want to just see Snowden punished? Or do we want to see
the public properly informed about what its own government is doing and
protect whistle-blowers?

I think that Snowden has exposed also how the whistle-blowing laws have not
been as effective as many of us hoped they would be.

SMERCONISH: Clarence, may I raise this with you? Professor Alan
Dershowitz was here on HARDBALL with us at the end of last week. I thought
he made a salient point.

There were no constitutional protections that applied to the circumstances,
for example, of Angela Merkel. And it`s almost as if Snowden was spiteful.
He wasn`t making a statement about constitutional protection when he
exposed that state secret. That`s where he really went too far. Wouldn`t
you agree with that?

PAGE: Well, I think, again, this is something that the public ultimately
should decide, which is what Snowden was saying before.

We`re living in a post-9/11 atmosphere now. Many people are having second
thoughts about what powers we gave through the Patriot Act, how many rights
were rolled back, and with advancing technology how much even the gathering
of metadata is in effect like tapping your phones, well, every phone in the
country. I think we need to take a second look. And now President Obama
is doing that in the wake of the Snowden revelations.

SMERCONISH: Well, this is to be continued. Thank you both, Clarence Page
and Ruth Marcus, as always.

Up next...

MARCUS: Thank you.

PAGE: Thank you.

SMERCONISH: Thank you.

In the "Sideshow": North Korea finally has something that virtually no
North Korean could possibly afford to use.

By the way, if you want to follow me on Twitter, and I hope you do, all you
need to figure out is how to spell Smerconish.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Back to HARDBALL. Time now for the "Sideshow."

Well, they say you are what you eat? But when it comes to alcoholic
beverages, it turns out that you are also likely to vote like you drink. A
recent study by the National Media Research has found that your drink
preference not only reflect your political ideology, but it`s also
predictive or not you`re likely to show up at the polls.

Using consumer research data, they charted over 50 major brands from left
to right along the political spectrum with the vertical axis corresponding
to voter turnout. While that is hard to see, the findings show that
Democrats are likely to prefer clear spirits like vodka or gin, whereas
Republicans tend to favor darker liquors like bourbon or scotch.

And while wine drinkers span both side of the partisan divide, they`re
ranked as most likely to vote according to the turnout data. So what does
this tell you about your own taste in alcohol and politics? Check out our
Web site to see the full chart and tell us if it reflects your preference
in our poll at MSNBC.com/HARDBALL.

Next up, it was one of the most sought-after pieces of hardware for the
impoverished communist nation of North Korea. And now after two years of
searching, Kim Jong-un has finally acquired one, fulfilling one of his
longtime national ambitions. This time, however, it`s not a WMD. It`s a
ski lift.

The story goes that Kim fell in love with the winter sport while at a Swiss
boarding school in the `90s. After assuming power in 2011, he made it his
prerogative to create a ski resort in his own country. The only problem
was, no one was willing to sell him the lifts that he required. When the
traditionally neutral Swiss government blocked a deal, Kim called their
decision a -- quote -- "human rights abuse" that discriminates against the
Koreans.

Talk about the pot calling the kettle black. Despite his mixed luck,
photos released by the state-run Korean Central News Agency showed that the
young dictator somehow got his hands on one, which he now claims is at the
center of world attention.

Keep dreaming.

Up next, the inconvenient story that many on the right are conveniently
dismissing.

You`re watching HARDBALL, the place for politics.

(COMMERCIAL BREAK)

CRAIG MELVIN, MSNBC CORRESPONDENT: I`m Craig Melvin with some breaking
news right now.

The first major winter storm of 2014 is covering parts of the Midwest and
Northeast with up to a foot of snow. That means holiday travelers could be
facing some heavy delays. Chicago`s O`Hare Airport has already canceled
more than 300 flights. It looks like the Boston area will bear the brunt
of this thing. Forecasters are predicting up to 14 inches of snow
overnight and into tomorrow. Stay with MSNBC for updates on the storm`s
progress throughout the night -- back to HARDBALL.

SMERCONISH: Welcome back to HARDBALL.

From the moment of the deadly assault on the U.S. diplomatic compound in
Benghazi, Republicans have claimed that it was a well-orchestrated attack
by al Qaeda that had nothing to do with an anti-Islamic video.

Well, this weekend, "The New York Times" published the results of a major
investigation into what happened September 11, 2012, in Benghazi, Libya.
They found that there was no evidence that al Qaeda or other international
terrorist groups had any role in the assault. And, in fact, the assault on
the embassy was fueled in large part by anger at an American-made video
denigrating Islam.

Supporters of the administration and of Hillary Clinton took the article as
the final nail in the coffin for Benghazi conspiracy theories. For many
conservative critics, the only thing the article proved was that The New
York Times is in the back pocket of Hillary Clinton.

(BEGIN VIDEO CLIP, FOX NEWS CHANNEL)

UNIDENTIFIED FEMALE: Most people, when they read the piece, just assumed
that The New York Times was trying to clear the decks so that Hillary
Clinton wouldn`t have to deal with Benghazi in a potential presidential
run.

UNIDENTIFIED MALE: Oh, heavens no. That couldn`t have possibly been their
motivation? Would it be? To support a Democrat who`s running for the
White House?

UNIDENTIFIED MALE: He`s making it quite obvious the reason that "The
Times" invested all the effort and time in this and put it on the front
page. It`s precisely a way to protect the Democrats, to deflect the issue
to protect Hillary. It is obviously a political move.

UNIDENTIFIED MALE: I don`t know why they put it out, unless it was for
political reasons. This thing is eventually going to fall back on the
State Department when all the truth gets out there. We are not quite as
used to this kind of political machine as the president and the Clintons
have.

And so I think they`re just laying the groundwork, try to absolve her from
the lack of security that was sent over there.

(END VIDEO CLIP)

SMERCONISH: Congressman Mike Rogers also said that he found the timing
odd. And in "National Review," Elliott Abrams, a former adviser to George
W. Bush, wrote: "The division of the Hillary for president campaign known
as `The New York Times` issued a lengthy white paper Sunday entitled `A
Deadly Mix in Benghazi.`"

What exactly is left in the Benghazi arsenal for the right and will it
really haunt Hillary Clinton if she runs in 2016?

Steve McMahon is a Democratic strategist. John Brabender is a Republican
strategist.

John, I have my hard copy of "The Times" here. It`s nearly 8,000 words. I
wonder how many of the individuals that we just saw in the montage actually
took the time to read it. And I say that because my reading of "The Times"
shows how woefully unprotected Ambassador Stevens was on that date.

I don`t look at it as a whitewash of anything. How do you read it?

JOHN BRABENDER, FORMER SENIOR SANTORUM CAMPAIGN ADVISER: Well, I think
that`s a good point.

The report does show that, first of all, there was very grave security
risks that existed. And, frankly, the responsibility of that was with the
secretary of state. So I think there`s very big problems for Hillary
Clinton in this report alone.

But the real arrogance to me was the editorial that came out from The New
York Times saying, well, any rational person, this would be the end, even
though this totally conflicts with what three New York Times reporters had
written before, what Democrat and Republican House intelligence members are
saying. Even part of the administration has said there could be al Qaeda
ties.

And so I think this is remarkably arrogant by what looks to be a Hillary
Clinton super PAC for 2016.

(CROSSTALK)

SMERCONISH: OK. But let me follow up on that, if I might, because I have
the editorial with me as well.

And "The Times" -- to which you refer -- "The Times" says: "If Mr. Rogers
has evidence of a direct al Qaeda role, he should make it public."

I mean, where`s the beef?

BRABENDER: Well, my understanding, there is an investigation going on.

Second of all, in the "New York Times" story, they basically say who they
think is responsible. Where`s the administration going after the people
who are responsible? What do say to the members of the family of these
Americans that died over there?

SMERCONISH: Hey, Steve, I get calls on the radio to this day of people who
will almost bark out Benghazi as a rallying cry. I wonder, however, does
this have legs beyond those outside of the hard-core GOP base?

(CROSSTALK)

STEVE MCMAHON, DEMOCRATIC STRATEGIST: It has legs with the same people who
are still carping about the president`s birth certificate.

This is the mirage that some Republicans see very, very clearly. But when
you get up close to it, it doesn`t really exist. And I agree with you,
Michael. "The New York Times" didn`t completely exonerate the
administration. They did say there were security lapses. They said that
there were indications that there could be problems.

But they took a deeper look and they found what Susan Rice said at the very
beginning had a great deal of truth to it. There was a video that was
getting quite a bit of attention through the Egyptian satellite television
networks that are throughout that region, and it was getting critical
attention and mobs were forming and they were angry.

And, you know, it`s possible -- and I think anybody who`s being honest
would have to acknowledge that it`s possible that there is some other
nefarious link here, but nobody can find it. And I got to tell you...

(CROSSTALK)

SMERCONISH: When I read the "Times" piece on the 29th, I wrote in the
margin of it "perfect storm." It seems like it was the confluence of a
variety of events...

MCMAHON: That`s exactly...

SMERCONISH: ... but not those that we have been told for months on end.

For months, conservatives had been promising Benghazi would turn out to be
something close to the undoing of the president. It was back in May that
former Vice President Dick Cheney had this to say.

(BEGIN VIDEO CLIP, FOX NEWS CHANNEL)

DICK CHENEY, FORMER VICE PRESIDENT OF THE UNITED STATES: I think it`s one
of the worst incidents that, frankly, that I can recall of my career. And
if they told the truth about Benghazi, that it was a terrorist attack by an
al Qaeda-affiliated group, it would have been destroyed the false image of
competence that was the basis of his campaign for reelection.

They lied. They claimed it was because of a demonstration video, so they
wouldn`t have to admit that it was really all about their incompetence.

(END VIDEO CLIP)

SMERCONISH: And Congressman Darrell Issa, who has been leading the assault
in the House against the administration, accused it of lying to American
people about what happened.

(BEGIN VIDEO CLIP, "MEET THE PRESS WITH DAVID GREGORY")

REP. DARRELL ISSA (R-CA), OVERSIGHT AND GOVERNMENT REFORM COMMITTEE
CHAIRMAN: The fact is, we want the facts. We`re entitled to the facts.
The American people were effectively lied to for a period of about a month.
That`s important to get right.

DAVID GREGORY, MODERATOR, "MEET THE PRESS": And I just want to be clear
what you believe the lie was.

ISSA: This was a terrorist attack from the get-go. They were, in fact,
covering up an easy attack that succeeded that was about -- was from the
get-go really about a terrorist attack. It was never about a video.

(END VIDEO CLIP)

SMERCONISH: And then this Sunday, Congressman Issa was back on "Meet the
Press" in the wake of that "Times" story that we`re discussing. He
defended his previous statements to David Gregory.

(BEGIN VIDEO CLIP, "MEET THE PRESS WITH DAVID GREGORY")

ISSA: What we do know is September 11 wasn`t an accident. These are
terrorist groups, some of them linked to or self-effacing -- or self-
claimed as al Qaeda-linked.

GREGORY: But you said repeatedly that it was al Qaeda. And the reason
that matters is that you and other critics said the president specifically
won`t acknowledge it`s al Qaeda because it`s an election year. And he
wants to say that after bin Laden, it`s been decimated, and it would make
him look bad if it were al Qaeda.

ISSA: Al Qaeda is not decimated. And there was a group there that was
involved that is linked to al Qaeda.

(END VIDEO CLIP)

SMERCONISH: You know, John Brabender, I think the reason why I was always
dubious of the conspiracy about this is that I don`t recall and didn`t at
the time that the president was thumping his chest and saying we had won
the war of terror.

So, I always found myself saying, OK, to what end would they have covered
this up? And I think that`s where the conspiracy fell apart. Your
thoughts?

BRABENDER: Well, I think we have to be very careful using the word
conspiracy.

The bottom line is, there were failures. There were mass failures. There
are Americans who died and lost their lives. And we still don`t have a lot
of answers from this administration. We don`t have anybody being brought
to justice. And we don`t have any dramatic changes that we`ve seen taking
place.

And so, somebody`s got to be held responsible, accountable. And, frankly,
someone has got to have Hillary Clinton tell us what really happened and
not the first story, not the second story, but the right story.

SMERCONISH: You know, Steve McMahon, I think for reasons I just don`t
understand that the White House bungled this from a political standpoint if
in fact the intelligence information came from the intelligence community
and Susan Rice then repeated it a few days later when she was doing the
rounds on the Sunday shows. They should have said that from the get-go.

My recollection is that it was six or nine or almost 12 months later when
finally that was confirmed. That she was parroting that which came from
the intel people. And I always wondered, why the heck didn`t they put that
story out immediately?

MCMAHON: I agree with you. And I think there were actually suggestions at
the time that that was what she was doing but they wouldn`t confirm it.
So, it`s hard to explain why they did.

But I got to go back to the Dick Cheney clip where he`s talking about an
administration that doesn`t tell the truth. Now, you know, it`s one thing
for Darrell Issa to be popping off, because that`s what Darrell Issa does.
Dick Cheney is the guy who took us into Iraq built on a lie that not only
did they miss, they actually probably knew wasn`t true.

They sent Colin Powell out the. So, you know, these things happen in that
part of the world. Probably a lot more often than anybody would like to
acknowledge or admit. But they happen and they probably prove that the
enemy of my enemy isn`t always my friend.

I mean, remember, the person who`s suspected of doing this is somebody who
was a -- wanted to overthrow Gadhafi and the American government helped
overthrow Gadhafi. And so, I think the American intelligence assumed that
this guy was a friend, but he wasn`t, but he also hated western imperialism
and wanted to take out many America.

So, I mean, you know, that part of the world and what we`re doing there is
something we ought to be asking questions about whether we belong there,
whether we can be effective there and whether this hunt for al Qaeda which
"The New York Times" also suggests is now diverting us from other important
national security considerations like doing the right thing in Benghazi to
protect the embassy.

SMERCONISH: Steve, thank you. John Brabender, thank you as well. We
appreciate your being here.

We`ll be right back. This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: If you`re hoping that the 2014 midterm elections are going to
create massive changes in the House, you might be disappointed. According
to "The Cook Political Report", two decades ago, when the Republicans took
over the House, there were 99 House districts that had voted for one party
in the presidential election and the other for Congress.

Today, there are just 26 such districts. Put another way, 93 percent of
Republicans now in Congress represent districts that were won by Mitt
Romney. And 96 percent of Democrats represent districts that were won by
President Obama.

We`ll be right back.

(COMMERCIAL BREAK)

SMERCONISH: We`re back.

Six months after Russia passed harsh anti-gay laws, President Obama has
named three openly gay former Olympic athletes to be official American
delegation which will represent the United States at the 2014 Winter
Olympic Games in Sochi.

The very makeup of his group is meant to send a message to Russia about our
disapproval of their treatment of gay people.

1998 Olympic gold medalist Brian Boitano joins openly gay athletes, tennis
legend Billy Jean King and ice hockey player Caitlin Cahow, in the U.S.
delegation. Boitano, who has always maintained privacy when it came to his
sexuality, made a public decision on December 19th to come out of the
closet just after being named to the delegation.

Boitano released a statement saying, quote, "I am many things, a son, a
brother, an uncle, a friend, an athlete, a cook, and author and being gay
is just one part of who I am. First and foremost, I am an American athlete
and I am proud to live in a country that encourages diversity, openness and
tolerance. As an athlete I hope we can remain focused on the Olympic
spirit which celebrates achievement in sport by peoples of all nations."

Brian Boitano joins me now.

Hey, Brian. Thank you for being here.

It occurs to me that Vladimir Putin and the Russians in passing this anti-
gay measure have essentially ensured that we`re about to experience the
most pro-gay Olympics ever.

BRIAN BOITANO, OLYMPIC GOLD MEDALIST: I totally agree with you. It is --
it`s been a very interesting journey, because so many people are jumping on
board to speak out for tolerance and diversity. And that was as you read,
that was the reason that it inspired me to come out, because I totally
believe in the president`s message. I wanted to represent the country in
the best way I could.

SMERCONISH: What`s the back story in terms of how you and Billy Jean King
and Caitlin Cahow all were invited? Did someone explain to you, hey, we
want to send a message here? I mean, you deserve it obviously on the
merits. You`re a gold medalist for crying out loud. But did someone say
to you, we want to send a message and therefore we`ve asked the three of
you together to be a part of the delegation?

BOITANO: No, the White House invited me to be on the delegation. And when
they were -- they vetted me which means they did the background check. I
asked them, who else was on the delegation? They said, we can`t really
tell you.

And there had been no message from the president yet on what kind of
message you were sending. And I was in Europe skating, and the day after I
was vetted, I read in the news who else was on the delegation, and also,
the message that the president was sending. And so, that`s when I was
like, wow, I need to -- I need to step up to the plate here and this is
going to be a monumental decision for me.

And, you know, coming, you know, sort of revealing this private side of my
life that I`ve always kept to myself.

SMERCONISH: You said recently that when you get over there, you`re going
to need to be careful. How so?

BOITANO: Well, I think, you know, there`s a fine line here. Because you
have to -- you have to realize that you`re in a country, as a visitor. I
think that there are a number of reasons that you have to be careful. I
mean, the recent incidents, you know, the bombing incidents, but I think
that for us to go over there now and be as a team, you know, with Billy
Jean and on the delegation and representing the country and the president
and his message, I think that that speaks volumes.

And I`m hoping and I see that other countries are taking that into
consideration as well. You know, they`re not sending, you know, their
presidents over and they`re not sending a delegation as well.

So I think that it is speaking volumes by us standing up and saying that we
come from a country of diverse people.

SMERCONISH: The IOC has been quiet on the issue. Is that a mistake? Are
you critical of their approach?

BOITANO: No, I`m not critical of anyone`s approach. I mean, everyone has
to do what is, you know, right for them. I`m just glad that I`m part of
the delegation that`s not being quiet.

And the USOC, you know, you never know what other types of things that
they`re trying to accomplish. So you can`t really judge what they`re
doing, but I`m really glad that I`m on the side of the delegation and the
president trying to support the message.

SMERCONISH: Just 30 seconds between us. When you come home, will you
begin a new career of advocacy?

BOITANO: You know, I am always -- I`ve always been a private person and
I`ve kept that side of my life special to family and friends and people who
know me really well and I intend to become, or to stay a private person,
even though I`m an out gay person. I`ve just always been that way.

It`s never been something that I`ve been ashamed about, but it`s been
something that I`ve always, you know, that people who have known me, have
always known. And I intend to continue to stay private.

SMERCONISH: Thank you very much, Brian Boitano.

And, by the way, best of luck with your new show coming out in January on
the HGTV network.

BOITANO: Thank you so much. "Brian Boitano Project."

SMERCONISH: There you go.

When we return, why a judge`s decision about welfare recipients has angered
a lot of people and why it makes a lot of sense.

You`re watching HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Let me finish tonight with this.

Earlier this week, a federal judge sitting in Florida dealt a major setback
to Governor Rick Scott when she ruled that welfare recipients may not be
subjected to mandatory drug testing. The case raises interesting privacy
questions. The plaintiff was a man named Luis Lebron. He was named
ineligible for benefits when he refused to undergo drug testing.

The Navy vet, a father who live with his disabled mother, said he`d never
used illegal drugs. People who fail the test -- they`re disqualified for
one year, but that can be cut to six months if they receive treatment for
substance abuse.

Well, U.S. Judge Mary Scriven said the testing requirement amounts to an
unreasonable search and seizure. A spokesperson for Governor Scott said
that drug testing welfare recipients is a common sense way to ensure that
welfare dollars are used appropriately.

The drug testing policy however is backed by many Floridians. A Quinnipiac
University poll last month showed that voters by a 71-27 percent margin
favor the law. Since Florida`s new law, testing welfare recipient took
effect, that was July 1, 7,030 passed, 32 failed, and 1,597 did not provide
results. That`s according to the Florida Department of Children and Family
Records.

The only other state to implement a similar drug-testing policy, Michigan,
had its law overturned in 2003 by a federal court.

In her opinion, Judge Scriven relied on dicta, that`s nonbinding argument,
that had been provided by the Eleventh Circuit.

And here`s what she wrote: "If the state were allowed to randomly drug test
any population of individuals by simply showing evidence of
disproportionate drug use within that population, the state`s exception
would swallow the rule against warrantless, suspicionless drug testing.

If a geographic population were shown statistically to have more prevalent
drug use, would persons in the geographic footprint be subject to testing?
If persons in an economic demographic could be shown to have a higher rate
of drug use, would all such persons in that economic group be subjected to
drug testing? Even if such suspicionless testing as proposed by the state
were limited to those persons receiving state funds, would college students
receiving governmental assistance to subsidize their education be subjected
to random, suspicionless drug testing if it can be shown that drug use is
demonstrably higher among college students?

The Supreme Court`s Fourth Amendment precedent would suggest not.
Moreover, even if it were constitutionally palatable, no such showing of
pervasive drug use among the Florida tamp population has been made on this
record."

You know, I find it interesting that some who are otherwise quick to
champion the Constitution aren`t willing to defend the Fourth Amendment
rights of welfare recipients. This judge, an appointee, by the way, of
President George W. Bush did just that. Her opinion is not only consistent
with the very similar Michigan case on the same matter, but also uses the
same logic, lack of individualized suspicion, that U.S. District Judge
Richard Leon in Washington, D.C., used when he ruled that the NSA
surveillance program is unconstitutional.

I know this is difficult for politicians on both sides of the aisle, but
you can`t pick and choose which amendments you want to enforce, nor can you
choose how you interpret any single amendment based on the underlying
politics of a case.

That`s HARDBALL for now. Thank you for being with us.

"ALL IN WITH CHRIS HAYES" starts right now.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

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