DOJ's Ferguson Report; Supreme Court's Obamacare Challenge; Hillary Clinton's Private Emails; Netanyahu's Critical Iran Policy Speech

PETE WILLIAMS, WASHINGTON WEEK GUEST MODERATOR:  Fixing Ferguson, parsing Obamacare, probing emails and Israel versus Obama.  I’m Pete Williams, in for Gwen Ifill.  Tonight on WASHINGTON WEEK.

(BEGIN VIDEOTAPE)

ERIC HOLDER, U.S. ATTORNEY GENERAL:  Our investigation shows that members of Ferguson's police force frequently escalate rather than defuse tensions with the residents that they encounter.  

WILLIAMS (voice-over):  A searing indictment of the police in Ferguson, Missouri after the Michael Brown shooting.  But will it make any difference?

A crucial test for Obamacare in the Supreme Court.  Could four words be fatal for President Obama's signature legislative achievement?  Israel's prime minister addresses Congress, pointedly challenging the administration's diplomatic outreach to Iran.  

BENJAMIN NETANYAHU, ISRAELI PRIME MINISTER:  This deal is so bad, it doesn't block Iran's path to the bomb, it paves Iran's path to the bomb.  

WILLIAMS:  And the president fires back.  

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  The alternative that the prime minister offers is no deal, in which case Iran will begin once again pursuing its nuclear program.  

WILLIAMS:  How fractured is the relationship with Israel?  

And Clintonmail.com -- Hillary Clinton under fire for using a personal account to conduct government business.  Bad form or against the law?  And how common is it?  

Covering the week: Pierre Thomas, senior justice correspondent for ABC News, Joan Biskupic, legal affairs editor of Reuters, Doyle McManus, columnist for "The Los Angeles Times," and Josh Gerstein, senior White House correspondent for "Politico".

ANNOUNCER:  Award-winning reporting and analysis, covering history as it happens.  Live from our nation's capital, this is WASHINGTON WEEK with Gwen Ifill.  

Once again, live from Washington, sitting in for Gwen Ifill this week, Pete Williams of NBC News.

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WILLIAMS:  Good evening.  

Imagine being arrested at gunpoint because your car windows were tinted too dark.  The Justice Department this week said that kind of police conduct is routine in Ferguson, Missouri.  

Six months after the shooting of Michael Brown that ignited protests nationwide, Attorney General Eric Holder said the police in Ferguson treat the public, especially African Americans, not as constituents to be protected, but as sources of money for the town coffers.  

(BEGIN VIDEO CLIP)

HOLDER:  Our findings indicated that the overwhelming majority of force, almost 90 percent, is directed against African Americans.  In fact, our view of the evidence found no, no alternative explanation for the disproportionate impact on African American residents other than implicit and explicit racial bias.

(END VIDEO CLIP)

WILLIAMS:  Pierre, you've seen dozens of these kinds of reports.  How is this different?

PIERRE THOMAS, ABC NEWS:  Well, the Justice Department did two things this week.  First, they said that Officer Wilson acted legally in shooting Michael Brown.  They said that it was reasonable for him to think that he was in jeopardy and firing his gun was legal.  

But the second thing, they laid out the specifics of their investigation.  And in my years of covering law enforcement, it was rather stunning.  They basically said the African-American community in Ferguson had been under siege.

JOAN BISKUPIC, REUTERS:  You know, it's interesting, that report also showed some shocking emails from police officials towards the Obamas and others.  Talk a little bit about those and what kind of reaction they’ve gotten.

THOMAS:  Again, shocking would be the word I would use.  One email referred to the president of the United States as a chimpanzee and another suggested that he would have a short term in office because what black man holds a job longer than four years.  

So, this was people working in government.  So, that's why many people were disturbed and it also echoes back to what many African Americans said in that city over the summer, which is that they felt they were the subject of systematic abuse by the police department.

WILLIAMS:  Some of those employees were fired, didn't they?

THOMAS:  Yes.  Today, we found out that one was fired and two had resigned from the police department.  

DOYLE MCMANUS, LOS ANGELES TIMES:  Pierre, under siege, what did that mean in practice for the black residents of Ferguson?  And how long had this been going on?  How come nobody blew a whistle before?

THOMAS:  Well, years is how long it had been going on.  

Now, I give you one example, Holder spoke yesterday about an example where a black man had been playing basketball, was sitting in his car and the police officer for some reason was suspicious of him and basically accused the black man with no evidence of being a pedophile, then proceeded to make the man get out of the car at gunpoint.

JOSH GERSTEIN, POLITICO:  So, Pierre, what happens now?  This is just a report that Holder released.  He's going to leave office, we think, within a few weeks now.  The Justice Department didn't file suit against the city.  

Is this city interested in fixing these problems or is it going to be a protracted fight?  

THOMAS:  Well, here's the process.  Right now, the Justice Department is negotiating with city officials.  The city has indicated a willingness to try to address some of the allegations.  If they do not comply, then the Justice Department would likely file suit and we heard the attorney general say today, if they don't comply, everything's on the table.

WILLIAMS:  Yes, he actually said that -- he was asked, might you try to dismantle the police department and he said, well, we could.  Obviously, the Justice Department can't do that itself, right?  They'd have to go to court?

THOMAS:  Exactly, they would go seek a consent decree.  Again, if the department will not comply, the Justice Department may say to a judge, this department cannot operate, we need to come up with another form of enforcement for that community.

WILLIMAS:  So, for now, it’s really up to Ferguson to decide whether they’re going to adopt these recommendations before the Justice Department would take action.

THOMAS:  Exactly, the ball is in their hands.  You saw a willingness, I think today, from the mayor in announcing that these employees had been removed or were no longer with the department.  He made it pretty clear that certain acts were intolerable.  And some people saw that as an admission that at least some things have to change.

WILLIAMS:  Very quickly, what about the police chief?

THOMAS:  No word on whether he's going to resign.  So far, no public comment from the police chief.

WILLIAMS:  All right.  Pierre, thank you very much.

The U.S. Supreme Court this week was struggling over a simple question, who gets a federal subsidy that cuts the cost of health insurance by an average of 70 percent.  Obamacare opponents say a phrase in the law means it's only for people who live in the 16 states that have set up their own exchanges, not for the millions of others who get their insurance on the federal exchange, healthcare.gov.

So, the court has to decide what the law means and -- Joan, did you get a read on what that ruling might be?

BISKUPIC:  Well, Pete, I think it's a close call but I do think there are two scenarios that could emerge.  First, I want to caution everybody that a lot can happen behind the scenes between now and June when we see a ruling.  So, don’t take this to the bank.

WILLIAMS:  Although your predictions have been very good.

BISKUPIC:  I know.

(LAUGHTER)

BISKUPIC:  But I could be wrong now.  

OK.  I think the government wins because of this.  This is the main scenario I put forward, is that centrist conservative Anthony Kennedy is so concerned about, if the challenges were to prevail, this would be -- this would be an unconstitutional coercion of the states because states would be forced to set up these exchanges so that their people would have -- would get subsidies.  So, I think that that was a concern that he had, even though last time around, he ruled against the government.  But I think he could tip it.

And I also think Chief Justice Roberts would be inclined that way.  So, that’s what I think would be the most likely scenario.  But the other one I do want to mention, that could possibly happen that would be against the government, but not a complete disaster -- for what the government needs here, and that would be a 5-4 ruling on behalf of the challengers.  But, according to something that Alito mentioned, they would postpone the effect of the decision for about a year.

There’s -- a mandate is issued when the justices rule and Justice Alito raised the possibility that if the government were to lose here, the court wouldn't issue that mandate for a full year so that the government, the federal government and states could work out an alternative.  We know the risk is 7.5 million people who now depend on subsidies in a majority of the states would not get the subsidies if the challengers prevail.  

MCMANUS:  So, Joan, wait a minute, you're saying it's possible both Kennedy and the chief justice could go for the government position, which would be 6-3?

BISKUPIC:  OK, that's true, Doyle.  But I think that if -- this is how we spend our time gaming this out.  You know, all they need is five.  All they need is five.  

And if Anthony Kennedy were to vote with the four liberal justices, who certainly showed their hand on Wednesday, that they would favor the Obama administration position, Chief Justice Roberts wouldn't have to go that way and he's the one who flipped last time and he did it with a lot of fallout, a lot of personal, judicial and legal community fallout from his people saying you were a traitor.  

Now, it was Justice Kennedy who seemed most inclined to buy this idea that it would really be harmful to the states if the government prevailed.  But again, he’s somebody who did vote against the government the first time.

THOMAS:  Joan, the chief justice played such a critical role last time.  Did he show his hand this time?

BISKUPIC:  No.  He had a poker -- you know, I don’t want to play poker with him.  Let’s just put it that way.  He was so guarded.  He kept his cards close to the vest.  

He asked, you know, two or three things and neither indicated much, except at the very end, he raised a possibility that would suggest that he could open to ruling for the government but in a way that would let the next administration reinterpret this key law a different way.  

GERSTEIN:  And how did the lawyers do this time, Joan?  You had a rematch of sorts?  You had Don Verrilli and you had Michael Carvin, really got a little bit of criticism last time for what was about a 20 or 30-second pause in his argument.  

Were there any difficulties like that this time?  Or did they both do a pretty good job?

WILLIAMS:  Verrilli, the government lawyer.

BISKUPIC:  Yes, Don Verrilli, who’s our solicitor general.  He -- he was much smoother, most smoother, Josh, and actually was able to sort of handle a lot of the questions pretty easily.  The conservatives are always the most talkative ones on the bench during these things and he was able to rejoin their questions much better than the first time around and Michael Carvin, for the challengers, he does tend to get a little bit overheated.  He has a very strong personality, can be impatient and at one point, Justice Sonya Sotomayor said, take a breath.  

WILLIAMS:  And we get the answer?

BISKUPIC:  End of June, Pete, don’t you think?  Like they voted on Friday, today.  So, they know which way they're inclined but as Justice Kennedy himself says, they got to see if it writes.

WILLIAMS:  Although there could be changing in votes, right?  It might have happened last time.  

BISKUPIC:  It might.

WILLIAMS:  OK.  We'll know in June.

We learned this week that when Hillary Clinton was secretary of state, she did use email on the job, just not the government's.  It turns out she had her own private email account run through apparently her own computer server.

And, Josh, this has raised all sorts of questions.  But did she do anything wrong?

GERSTEIN:  Well, it's a tricky question.  The Federal Records Act and rules in place across the federal government do create this presumption that you have to save records that are important, whether they're on your personal computer or government computer or in paper form.  

The government's been slow, though, to update these rules and laws for the modern era.  In fact, it was just last fall that President Obama signed a law that actually said you have to, for example, move a personal email into an official account within 20 days.  So, the question is, before, that could you do anything, was it an anything-goes type environment?  

A lot of us have been scouring the State Department's regulations over the last two days and found a phrase in here saying that normal day-to-day operations have to be conducted on an authorized system, the State Department saying, well, that's only for sensitive but unclassified information, maybe not all information.  So, there's a continuing wrestling match over this.  I would say most of the good government groups in town will tell you that they presume that officials should not be doing their work, at least exclusively, on private email.

BISKUPIC:  Do we -- what do you think could be in these emails that would end up being damaging?  Or is the damage just the fact that it was set up this way?

GERSTEIN:  Well, I think the controversy itself is damaging coming out in this vacuum where Hillary Clinton hasn't announced for president yet, doesn't really have a full campaign apparatus, doesn't have the full coterie of substitutes, advisers, surrogates, that go on television for her in place yet.  But there could be things in there that are sensitive, perhaps how she dealt with various scandals or sensitive matters that came up while she was secretary of state.  

We don't know exactly what is in there, 55,000 pages of these emails she turned over to the State Department at their request back in December and we're waiting for the State Department to go through them.  She said this week in a tweet, she liked that to happen as soon as possible, it may still take a while.

THOMAS:  But, Josh, for folks at home figuring out the family budget, is this something they're going to remember come election time should she choose to run?

GERSTEIN:  I don’t think it's a huge issue with people on the street, but I do think some of the explanations that have been given about whether this complied with policies or laws are kind on the lawyerly side.  They make people remember back to the difficulties that Hillary Clinton's husband got into it, the definition of the word, is, is.  They’re saying she wasn't prohibited from doing this.

But it’s pretty clear there was a practice across the department not to do this.  Even her top aides, many of them knew that they were supposed to be doing their business on official accounts.

MCMANUS:  Josh, a very basic question because there was a government email system at the time she started doing this, has she or have her aides said why she decided not to use the official system?

GERSTEIN:  They really haven't.  All they have said is that there is a precedent for secretaries of state doing this on a private email system.  Her predecessor, Colin Powell, had a personal laptop that he took around with him when he traveled, he tested Internet connections at different places, different embassies, and used this personal laptop.  Of course, that was more in the nascency of the internet era and now, we're more squarely in a time where almost everyone does I would say a majority of their business online.

So, they’re saying there is that precedent, but we still haven't gotten straight information about, did approve this?  Did someone get permission for it?  And why didn't anyone bring it up when she was leaving office two years ago?  Where are your email files and how are we going to get them into the permanent record?

WILLIAMS:  I thought I saw something that said ambassadors had to use the government email system.  Am I right about that?  And, secondly, no matter what the rules are for everyone else, are they different for the cabinet?

GERSTEIN:  As far as I know, there are no different rules and the White House has even said, a top adviser to the president said he had a firm rule that should be strictly enforced, that government work should be done on government email systems.  

You are right, Pete.  There had been, for example, inspector general reports, faulting ambassadors for trying to go around the system and use commercial email or commercial Internet because that may be easier in some remote outposts.  So, the question is why was the department punishing people for that activity while Hillary Clinton was secretary of state.  But, apparently, she was using the same personal email connection in order to do her business, using that kind of a system exclusively.

WILLIAMS:  All right.  Josh, thank you very much.  More on this to come, I’m sure.

When foreign leaders address the U.S. Congress, it's usually like a grand commencement speech.  The act itself is more important than the message.  Not so this week when the prime minister of Israel, Benjamin Netanyahu, used the platform to condemn the Obama administration's nuclear talks with Iran.  

(BEGIN VIDEO CLIP)

NETANYAHU:  This regime has been in power for 36 years and its voracious appetite for aggression grows with each passing year.  This deal would whet appetite -- would only whet Iran's appetite for more.  

OBAMA:  If year successful negotiating, then, in fact, this will be the best deal possible to prevent Iran from obtaining a nuclear weapon.  Nothing else comes close.

(END VIDEO CLIP)

WILLIAMS:  Doyle, you were there when the prime minister gave the speech.  What was it like it?  How did it feel?

MCMANUS:  Well, it was actually quite extraordinary because as you said, Pete, usually when a head of state comes, it's a decorous, rather boring affair.  This wasn’t that at all.  This was -- it was very political.  It was like a president's State of the Union speech.  It was like a convention speech, in the positive sense -- in the sense that Benjamin Netanyahu knows how to speak American.  He went to high school in Philadelphia and he went to college in Boston.  He gives a real stem winder of a speech.

But it was also troubling because, look, support for Israel has been bipartisan for many years.  This was very divisive.  You had lots of television shots of Republicans leaping to their feet, which also had lots of Democrats with their hands in their laps.  There was that shot you had on this show at the top of Nancy Pelosi looking stricken and something like 50-plus Democrats stayed away.  That's unprecedented.

But that really reflects the fact that Netanyahu came to give the case for the opposition to this treaty, this agreement, that President Obama is trying to negotiate.  That's why President Obama sort of intervened in that other shot that you had, to try and make the case for what he's doing.

BISKUPIC:  Doyle, what did he accomplish?  What did he accomplish here?  And then, politically, at home what did he accomplish?

MCMANUS:  Well, at home it's easy.  Actually, Israel has very tight restrictions on how much television time a candidate can get during a campaign.

WILLIAMS:  I want to say that's just wrong.

MCMANUS:  That is just wrong.  By giving this official speech just before that final window before the election which is only about a week from now, Bibi Netanyahu blew that wide open.  Got lots of great television time, probably solidified himself in the base.  

What he also achieved on substance was, I think he actually gave the most focused and eloquent explanation of the opposition to an agreement with Iran to the American public.  And he said you can't trust the Iranians, he said they'd get too much enrichment.  He said there's a sunset clause at the end of 10 years where Iran could do anything it wanted to do.  

The administration says, wait a minute.  We have answers to all of that.  There would be intrusive inspections. The sunset clause doesn't mean all the restrictions come off.

But the administration hasn't had a chance to deliver its case the way prime minister Netanyahu just did.

THOMAS:  But, Doyle, in terms of effectiveness, did he come up with any alternatives and is that what the administration is trying to hammer him over?

MCMANUS:  Well, he presented what he said was an alternative, but the administration says you can't get there from here.  His alternative was, in effect, stop these negotiations, walk away, be tougher.  

The administration says, look, we've gotten as far as we have by putting together international sanctions.  We walk away, or if we get blamed for this thing falling apart, those sanctions go away.  You know, there is nothing there.  

So, the administration is basically saying, we're getting an agreement, if we get it.  It's not there yet.  That will be the best we can get.  Netanyahu is saying the best you can get is not good enough for me.  

GERSTEIN:  So, Doyle, this comes -- you talked about timing -- comes before Netanyahu’s re-election bid but also comes as the talks over this Iranian nuclear program between the P5-plus-1, those countries and Iran are in a critical phase.  I think there's a target to reach a deal by the end of March.  

Did this dust-up over Netanyahu’s speech and the speech itself play any role in complicating those talks or maybe even pushing them forward?

MCMANUS:  If you were an optimist, you might say it might have helped the talks a little bit in that some of the American negotiators were saying, look, if in Iran they’re saying, gee, the Israelis really hate this agreement, maybe it's not such a bad deal.  Maybe we should go for it.

The other thing that happened, though, was interesting, and this was sort of a test of whether Netanyahu had changed any minds.  Mitch McConnell, the Senate Republican leader, thought, boy, he's made such an impact, I’m going to call up early a proposal that had been a bipartisan proposal that would force the administration to bring the agreement before Congress and that would not allow the administration to suspend sanctions for 60 days.  

It actually backfired.  Senator Robert Menendez, Democrat of New Jersey, who is one of the sponsors of that, said this thing has gotten too partisan.  I would vote against my own proposal if you brought it up now.

WILLIAMS:  All right.  Doyle, thank you.  Thank you all.  

Be sure to catch Gwen Ifill's special report on the 50th anniversary of the Selma civil rights march.  That will air on the "PBS NEWSHOUR" Monday.

And WASHINGTON WEEK is commemorating the historic march with unforgettable images from that day.  Find those and other features online at PBS.org/WashingtonWeek.

I’m Pete Williams.  Gwen will be back here around the table next week on WASHINGTON WEEK.  And don’t forget, set your clocks ahead Saturday for Daylight Savings Time if you can find them in the snow.

Good night.