updated 1/6/2006 9:15:03 AM ET 2006-01-06T14:15:03

Guests: Bob Bennett, Kris Kobach, Michael Chertoff

CHRIS MATTHEWS, HOST:  Johnny, we hardly knew you.  Suddenly the biggest big shot on K Street is the man nobody knows.  Suddenly the man who handed out campaign cash like Johnny Appleseed is watching those $1,000 gifts being sent back to charity like Christmastime fruit cake.  Even Hillary Clinton‘s got some hot Abramoff cash to shed. 

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews. 

And welcome to HARDBALL.

As disgraced Republican lobbyist Jack Abramoff gets ready to dime out his pals on the Hill, the politicians who grabbed his campaign cash keep rushing to give it back, showing charity doesn‘t begin at home, but rather with hysteria. 

Tonight as a public service from HARDBALL, we‘ll be listing the names of politicians, congressmen and senators returning or donating Abramoff-related contributions.  You can read on the banners at the bottom of your screen.  It‘s a public service.

But will returning the campaign cash cleanse lawmakers of their sins in time for the midterm elections this November?  And the big question today in Washington:  Will Congressman Tom DeLay, “The Hammer,” get nailed by the Abramoff scandal?

Prominent conservative voices are already calling for DeLay‘s banishment as majority leader, with reports that some GOP House members are already campaigning for his job. 

And later tonight, we‘ll talk to the secretary of homeland security about illegal immigration from below the border. 

But first, HARDBALL‘s David Shuster with the latest on the Abramoff scandal. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  A year ago, after e-mails revealed he had called his Indian tribal clients morons, a defensive Jack Abramoff gave an exclusive interview to NBC News. 

JACK ABRAMOFF, LOBBYIST:  I don‘t have any derogatory feelings toward any of my clients or any Native American tribe and never have.  I‘ve spent 10 years building bridges between Native Americans and the conservative movement and the Republican Party. 

SHUSTER:  Prosecutors now say the bridges were actually part of Abramoff‘s criminal schemes.

And on the issues of enriching himself through Indian tribes and ratcheting up his legislative power, documents show Abramoff secured some high-powered help. 

The “Boston Globe” reports Republican House Speaker Dennis Hastert at a fund raiser two years ago at Signatures, Abramoff‘s Capitol Hill restaurant, and collected $21,000. 

A week later, Hastert wrote to Interior Secretary Gail Norton, urging her to reject an Indian casino in Louisiana.  Abramoff‘s clients feared that casino would be a new competitor.  Hastert told Norton the new casino would, quote, “run counter to congressional intent.” 

Jack Abramoff was also helped by Ralph Reed, one of the leading Republican operatives who was best known for leading the Christian Coalition in the mid-1990s. 

RALPH REED, CHRISTIAN COALITION:  We are not measured by our checkbook balance.  We are measured by the moral fiber of our people. 

SHUSTER:  In recent years though, Reed‘s moral fiber didn‘t appear to be threatened by online gambling. 

On behalf of Jack Abramoff‘s clients, Reed convinced Southern lawmakers to kill legislation that would have eliminated wagers over the Internet, and for that and other work on Abramoff‘s agenda, records show the checkbook balance of Reed‘s consulting firm swelled by more than $4 million. 

Reed‘s firm allegedly received $2.3 million from a sham think tank called the American International Center located on a Delaware beach.  It was set up by Abramoff‘s business partner, Michael Scanlon, and was run by two of Scanlon‘s beach friends, a yoga instructor and a lifeguard named David Grosh. 

A year ago, the lifeguard Grosh testified before John McCain‘s Senate committee. 

(BEGIN VIDEO CLIP)

U.S. SENATOR JOHN MCCAIN ®, ARIZONA:  What happened?  He approached you in some way? 

DAVID GROSH, LIFEGUARD:  Phone call. 

MCCAIN:  And said? 

GROSH:  Do you want to be head of an international corporation? 

(LAUGHTER)

It‘s a hard one to turn down.  I asked him what I had to do, and you know, he said nothing, so that sounded pretty good to me. 

(END VIDEO CLIP)

SHUSTER:  While the connections with Michael Scanlon, Jack Abramoff and their bogus think tank may cause trouble for Ralph Reed, who is now running in Georgia for lieutenant governor, the stink could be worse for Congressman Tom DeLay. 

DeLay wants to run for House majority leader, but DeLay‘s former press aide is Michael Scanlon.  And Abramoff, who is also now a government witness, is believed to have information that could put the Texas indicted DeLay in jeopardy at the federal level. 

Already, the influential conservative “National Review” and former House speaker Newt Gingrich are calling on DeLay not to run again for majority leader. 

NEWT GINGRICH ®, FORMER HOUSE SPEAKER:  You can‘t have a corrupt lobbyist unless you have a corrupt member or a corrupt staff.  I mean, somebody had to be on the other side of that corruption.  This was a team effort. 

SHUSTER:  And today, the “New York Times” said Republican leaders are looking for someone to replace the radioactive Texan.

As Jack Abramoff stated a year ago...

ABRAMOFF:  It naturally is very difficult for people to stand by former friends and former colleagues and former employees if they feel that perhaps their own position might be in jeopardy. 

SHUSTER (on camera):  And the position of Republicans seems to be changing. 

For months, they ignored Abramoff‘s problems; now they are racing to distance themselves from him. 

The question is, will it work or will voters concerned about corruption see these politicians, to use a favorite word of Jack Abramoff, as even worse than morons? 

I‘m David Shuster for HARDBALL in Washington.

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster. 

Bob Bennett is a former federal prosecutor.

Bob, you were counsel to the Senate.  You‘ve been on both sides of these fights, going after corruption, sometimes defending members.  What is in and what is out in terms of bribery? 

BOB BENNETT, FMR. FEDERAL PROSECUTOR:  Well, technically, you can‘t accept anything, if you‘re going to give something in return.

But the whole system is in a generic sense a gratuity like...

(CROSSTALK)

MATTHEWS:  OK.  A guy comes to you and says, “I‘m going to give you a trip to—whatever—St. Andrews in Scotland.  You‘re going to spend three or four days, maybe you got to talk to somebody for 15 minutes somewhere.  It‘s all legal because it‘s part of some, you know, honorarium deal.”

And then a week later, he calls you up and says, “Did you have a nice trip?  Did you get a nice tan?  How‘s your wife like it?  Could you put this thing in the record for me?”

Is that bribery? 

BENNETT:  It depends.  No, it might be a gratuity.

And it would all depend on your intent and it would—you know, and if the government could show it was a quid pro quo, then it would be, in fact, a bribery.

But it‘s very difficult for the government to find cases where it‘s bribery. 

There‘s a lot of bribery that goes undetected, a lot of gratuities that go undetected. 

MATTHEWS:  OK.  Give me an example of an undetected bribery. 

BENNETT:  Well, the situation that you just mentioned where somebody in the back of their mind knows that if they get these benefits, they will be as helpful as they can be to the person giving them. 

And yet there may be the absence of specific proof of a quid pro quo, of “I‘m accepting this and doing this for you.” 

The problem, Chris—and there‘s a lot of honorable people in Congress—is the institution is getting destroyed because they are addicted like addicts to perks and to the money that guys like Abramoff can raise for their fund raisers, and they—just like one of your favorite lines, the police captain is surprised of there being gambling in Rick‘s Place.  Now they‘re all running around, giving the money to charity or giving it back. 

They all know what Abramoff was up to, and they—but they do it anyway. 

MATTHEWS:  OK.  It‘s obvious—we‘ve known and we can talk it to death that the average member of Congress needs X many hundreds of thousands of dollars to get re-elected in even a safe district, OK, we know that. 

BENNETT:  Right.

MATTHEWS:  What‘s this about perks?  Is it that they live for some

golf outing, that they‘ll throw away their honor for a golf outing to

Scotland because that‘s what—because they don‘t have a lot of income on

the side, because they‘re restricted in other ways?  rMDNM_

Why today is it easier to buy a member of Congress for a good weekend, with a good weekend? 

BENNETT:  Well, I don‘t know. 

Looks, let‘s be fair, most members...

MATTHEWS:  That‘s what you just said.

BENNETT:  Yes.  Most members of Congress wouldn‘t do that. 

But I think there are many who will, and I think there are many who will.  And I think you‘d see mass retirements in Congress if you passed legislation or rules which eliminated these perks.  There‘s just no...

MATTHEWS:  Give me an example of a perk. 

BENNETT:  Well, what‘s described in the indictment—going off and playing on golf courses throughout Europe.  You owe somebody when they do something like that. 

Now, it‘s very difficult for the government sometimes to show that, that was done in return for something else, but you‘ve got to apply some common sense here.

And one of the big problems, Chris, is the ethics committees, which I dealt with, you know, as counsel to the Senate...

MATTHEWS:  They‘re pretty dormant, aren‘t they? 

BENNETT:  They‘re worse than dormant.  They‘re a laughing stock. 

They—no staffer would dare start an inquiry on his own for fear of offending an important member of Congress.  And the senators or the congressmen on these committees don‘t want to start something and dig deep about one of their colleagues whose votes they may need.

So it‘s a very bad system. 

And one of the things, Chris, that, you know, I reflect on because of another part of my life is they will drag corporate executives, as we‘ve seen the past year, before them and absolutely crucify them for perks and crucify them for breaches of fiduciary duties to shareholders, and yet without any sense of shame, go ahead and do the very same things, if not worse, bringing great discredit to their institutions, and they—many of them, many, not all, don‘t seem to think twice about it.

MATTHEWS:  When you sit down with a client, client A or B, or just think of a person generically, give me a composite, and you say, “Congressman, I have to tell you this.  I‘ve looked at the facts here.  It looks like you‘re exposed here.  They could charge that you on day one took a nice trip somewhere that was worth I know you may not know this. 

That trip, if you look at the first class ticket price and you look at the price of the hotel and what it cost for the greens fees, that was a $30,000 weekend, buddy.

And then on the Tuesday after that when the House was back in session, your legislative assistant drafted up legislation helpful to that person.  Are you telling them at that point that it looks like bribery? 

BENNETT:  Well, you know, in that hypothetical, I‘d tell them that the prosecutor is probably looking at that, and that we, at best, if we can honestly do it, sever the link between the perks and the action. 

MATTHEWS:  How do you do that?  How do you say they aren‘t connected?

BENNETT:  Well, you know ...

MATTHEWS:  Because the person watching right now on television believes they‘re connected.  A citizen out there who watches a Congressman do a big favor for a guy who just did a big favor for him says excuse me, they‘re connected. 

BENNETT:  Well, I agree with the public.  You know, that‘s the obvious perception but ...

MATTHEWS:  Well it‘s the truth, isn‘t it? 

BENNETT:  Yes, generally it‘s the truth.

MATTHEWS:  Right.

BENNETT:  But in putting on my hat as a defense lawyer, you know, you try to show that he voted that way or did the same kinds of things prior to that. 

MATTHEWS:  Let‘s get particular about someone who is not your client.  Robert Ney of Ohio, Republican member, put things in the record, the Congressional record, which is his right as a rMD+IN_rMDNM_representative of the people, in a way that advanced some business deal down if Florida involving casinos. 

It had nothing to do with his constituents.  It had something to do with something he was doing for Abramoff, OK?  Is that hard thing to prove, just to say why else on God‘s earth would this guy be saying things in the Congressional record about some casino deal if he wasn‘t doing it as a payoff to some lobbyist? 

BENNETT:  I think that that—because I‘m very reluctant without knowing all the facts to point the finger of guilt toward anybody, but as you articulated, the prosecution is going to be way ahead on that, precisely because of what you said earlier ...

MATTHEWS:  The jury ...

BENNETT:  ... that the public looks at this stuff and says give me a break. 

MATTHEWS:  In life, hopefully, we have judgment by our peers, we have a jury of reasonable intelligence that knows what‘s going on.  A jury is presented with this and said Congressman A, whatever his name is—Ney—did this, obviously, as a pay back for a gift.  Is the jury then—it‘s up to the jury to see whether common sense tells you that this was a pay back or not? 

BENNETT:  Yes, but the defense ...

MATTHEWS:  No law will help us there.  You really have to figure it out. 

BENNETT:  It‘s all fact-based because the defense lawyer there is going to try to show presumably, you know, he would have done it anyway.  He‘s done this kind of thing before, that even though he played golf for three days in Europe, he also gave a speech to a bunch of businessmen, A, B, C and D, but these are all fact-based. 

MATTHEWS:  Is this just like King Kong is a bigger gorilla, that Abramoff is just a bigger example of this problem, that he‘s just generically the same? 

BENNETT:  Yes, I—well, there are ...

MATTHEWS:  He‘s just a big gorilla.

BENNETT:  There are very legitimate lobbyists.  I know many of them who do their work honorably. 

MATTHEWS:  Do they do favors for clients, for members of Congress with the idea of calling them up two days later and asking them to put a bill in? 

BENNETT:  Some do and many do not.  But I think members of Congress are naive to think that there is never any connection there and on one side of it—and they know this.  I mean, they‘ve been around a long time.  Some of these lobbyists, when they are going out hustling a client, you know, what they are articulating is not oh, gee.  They‘re not staying gee, the guy is not in my pocket. 

Some of them are out there saying, you know, hire me rather than lobby firm A, B, C and D ...

MATTHEWS:  I remember one lobbyist ...

BENNETT:  ... because I‘m so close to these guys, I just played golf with him for three days and he was at my house and he‘s in my box at the ballpark every weekend. 

MATTHEWS:  And he does take my calls. 

BENNETT:  And he takes my calls. 

MATTHEWS:  Yes, thank you Bob Bennett.  You know your stuff.  Thank you very much, sir.

Coming up, MSNBC‘s Joe Scarborough with his former hat being a former member of Congress.  We‘ll find out what he thinks about the Abramoff scandal and this way of doing things we‘re hearing about from Bob Bennett. 

And later on in the program, Homeland Security Secretary Michael Chertoff on whose in charge of protecting America from terrorists.  It‘s him.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Joe Scarborough is the host of MSNBC‘s “SCARBOROUGH COUNTRY,” which airs every night at 10:00.  He‘s also a former member of the U.S. Congress from Florida.  Maybe someday he‘ll be bigger than that, even that some day. 

Joe, let me ask you, as you watch this from the perspective of former membership in the Congress, and you see all these members now giving back money and obviously getting a little nervous about this guy Abramoff, how does he fit into the picture you recall from the Hill? 

JOE SCARBOROUGH, HOST, “SCARBOROUGH COUNTRY”:  You know, it‘s funny, I remember Abramoff‘s name, I remember certainly that he was attached to DeLay‘s office especially but, you know, there were all always guys that would be coming in talking about Indian casinos. 

We don‘t have Indian casinos in northwest Florida.  I could never really figure out what that was all about.  Now I am starting to figure out what it‘s about.  It‘s interesting though—it‘s funny.  I‘m listening to Bob Bennett—I guess—you know, I guess my biggest take on this is that this seems so much the way that business was done in Washington, D.C.

Bob Bennett is on and he‘s telling you that some lobbyists take people golfing and expect them to drop bills a few days later and vote with them, and they‘re expecting something in return for their favors.  Some?  All.  All do it.  That‘s their job. 

They are hired to get Congressmen to vote their way, to drop bills, to put speeches in that attack this group or that group.  And, I mean, that‘s the way business has been done, and unfortunately, it‘s a dirty, nasty system.  And I got—you know, Chris, in the first week—first—I guess actually first month I was up there, I got, you know—I found out what lobbyists expected. 

I had the peanut growers come in and talk to me about peanuts subsidies.  I had peanut farmers in my district, and I said well, I‘m against all farm subsidies.  They smiled and I smiled back, said thanks a lot, thank you so much for being honest with us, Congressman.  They walked out of the office, and the next day I got $10,000 worth of checks.  The vote was the coming week.

I ended up voting against their subsidy bill anyway after they gave me $10,000 in checks, an my chief of staff came and goes boy, those peanut guys are—I won‘t say what he said.  They‘re really ticked of at you, Joe.  I said why?  I told them how I was going to vote. 

He said that‘s not the way it‘s done up here.  They gave you the money, you were supposed to vote their way.  And, again, I didn‘t hold it against the peanut subsidy guys.  I said, you know—it hit me then that members were dirty.  You give them money ...

MATTHEWS:  Well ...

SCARBOROUGH:  ... they switch their votes.

MATTHEWS:  Well, try to decipher this.  A member of Congress, somebody you know, once told me that you could go into a subcommittee and you‘d be sitting around a room trying to figure out how to mark up a bill or how to begin to approach it—and you could tell all of a sudden that some guys were tanked, as he said.

In other words, you could tell they were in the tank, the industry had gotten to them, they were basically invasion of the body snatchers types.  And there‘s also guys like you, you know a member of—a lobbyist guy, you respect him, and he‘s a good source of information and maybe a campaign contribution now and then.  But you‘re not owned by the guy.  He can get in the door, maybe spend 10 minutes with you, but you could also say, “Tough Luck.”  Where‘s the line?

SCARBOROUGH:  I think the line is, and I saw the report on Denny Hastert getting money from Abramoff, $21,000 at a fundraiser that David Shuster reported.  A week or two later, he writes a letter that helps an Indian casino that Abramoff supports.  I think that‘s going way over the line.

MATTHEWS:  Because he doesn‘t have Indians in his district.  He‘s clearly—this guy, Robert Ney making some push in the “Congressional Record” for some business deal down in Florida, trying to screw some enemy of a business deal.  There‘s nobody in Ohio that‘s got a casino in Florida.

SCARBOROUGH:  No.  And that‘s over the line.  I think also, I would walk into Armed Services markups, and you would have half the committee screaming about the need for—I don‘t know, I‘m just making somebody up, Apache helicopters.

The other half were against Apache helicopters, but they wanted to have six teams.  And, you know, I‘d call my chief of staff over and said, “What‘s this about?  What side am I supposed to be on?  Why are people so impassioned?”  And they‘d say something like, “Well, Grumman makes the Apache helicopters and Lockheed makes the F-16‘s.”  Again, I don‘t have the companies right.

But you could tell, this group got money from Boeing, this group got money from Lockheed.  And you could tell who was dirty and you could tell who took the money, and whose votes were impacted by that.

MATTHEWS:  Must be great to sit next to those guys and realize who‘s in the tank and who‘s not.  Let me ask you, what do you got on tonight at 10:00 tonight on M.S,?

SCARBOROUGH:  And I feel—I‘ve got to clear this up also though.  They‘re also though, pretty soon lobbyists figure out what side you‘re on on issues that matter to you and they‘re the ones that come to you naturally and say, “Since you‘re on our side, we want to support you and make sure you get re-elected in the future too.”

MATTHEWS:  Wow.

SCARBOROUGH:  That happens too and that‘s people that are actually rewarding you for being on their side.  It‘s like the NRA worked against me on my first campaign, said some very nasty things about me.  My first meeting with them was, said, “I‘m going to vote the way you guys want me to vote, despite the fact that I hate your guts and would love to destroy you.” 

You know, NRA supported me the whole time through, not because I knew I could get money for it, but because we were lined up and they wanted to vote for Second Amendments.  You know, Second Amendment issues throughout my career up there.

MATTHEWS:  What always amazes me is how politicians stay bought.  I mean, if somebody gave you money from the cigarette industry, somebody told me, “You‘d have to vote with them, you probably would, even though if you hated the industry.”  I always thought you could, remember the old line from California, Jesse Unruh, “If you can‘t take their money and their booze and their women and vote against them in the morning, you don‘t belong here?”  What happened to that spirit?

SCARBOROUGH:  Well you know what, actually, that spirit is still there.  I mean, the old bulls still say that on the Hill.  I always said it too, always told people if they supported me, gave me money, you know, they couldn‘t expect anything.

And I‘ll tell you what, lobbyists figure that out also.  They figure out who they can buy, they figure out which guys come from Middle America that are just excited to be there and go golfing in Scotland.  And they figure out which ones are kind of cranky and obstinate who they can‘t trust.

MATTHEWS:  Like you.

SCARBOROUGH:  Yes, and I‘ll tell you what, being cranky in the long run always wins votes.  Instead of being bought by lobbyists.

MATTHEWS:  As somebody once said, “I‘ve been right and I‘ve been paranoid and it‘s better being paranoid.”  Anyway, Joe Scarborough, thanks.  Watch him tonight at 10:00.

Up next, an attorney who worked in the Department of Justice under Secretary John Ashcroft starting just before 9/11 says the department was never consulted on domestic wiretapping.  I‘ll ask him if he thinks it‘s a violation of the law.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Is the president‘s NSA spying program legal?  For answers to that question, we turn to Kris Kobach, who started working for John Ashcroft at the Justice Department just before 9/11 and stayed on after the terrorist attacks as a counsel.

Kris, what do you think after having worked there, about this decision by the president and this administration to begin surveilling e-mails, telephone calls, worldwide, to try to nail a connection to al Qaeda?

KRIS KOBACH, FORMER COUNSEL TO ASHCROFT:  Well one thing I think that‘s important that some people are missing in all of this is they‘re assuming that the president can only do this if he gets approval through the special intelligence surveillance court. 

The fact is that four U.S. courts of appeals have recognized and the surveillance court itself have recognized that the president has inherent power during wartime to monitor communications between our enemies, either enemy-to-enemy or...

MATTHEWS:  ... What is—we‘re in a situation now where the president and Condi Rice have declared this war on terrorism to be an ongoing, even generational struggle.  In other words, as long as there‘s an al Qaeda network somewhere in the world, we‘re at war, which is OK, that‘s the way we describe it.  But does that give him the legal and constitutional authority to say, “I‘m a commander-in-chief in a nation at war,” does it?

KOBACH:  Well, yes.  If our troops are fighting a war somewhere or if an argument can be made in court, a colorable argument that we are actually at war, then his commander-in-chief powers come into play.

MATTHEWS:  Article II of the Constitution prevails.

KOBACH:  Exactly, right.

MATTHEWS:  In other words, he doesn‘t need the legislative authorization from 2001.  He doesn‘t need that terrorism act, he doesn‘t need any of that stuff.

KOBACH:  Well, he might need some of it.

MATTHEWS:  By the way, your opinion here is based upon a legal reading by yourself or who?

KOBACH:  A legal reading by myself of the cases that have addressed this issue.  And there‘s a lot of cases that say the president has very broad Article II powers.

MATTHEWS:  OK, what stops him from tapping your phone right now?

KOBACH:  Because there has to be some...

MATTHEWS:  ... without court approval.

KOBACH:  There has to be some reasonable connection between the person I‘m talking to, by communication...

MATTHEWS:  ... How does the court know about the tapping, if it isn‘t brought before the court?

KOBACH:  Well let me get to that first question though.  There has to be some reasonable connection between my conversation and the wartime activities.

MATTHEWS:  OK, who monitors that?  Who makes sure that—who polices that?

KOBACH:  Well, to a certain extent, in a democracy like this where all is dependent upon the executive branch, to a certain extent to police itself.  But let‘s say that they called...

MATTHEWS:  ... That‘s what people are tricky about.  That‘s what people, I think, who watch this show in the political middle, and people who are libertarians, worry about.  Because once a government says—an administration says, “We don‘t have to follow any kind of legal restrictions,” then it‘s up to what they do in private and we don‘t know what they‘re doing.

KOBACH:  Right.  But as soon as anyone detains me or tries to haul me into court, then immediately I have the opportunity to contest it in the Article III courts, in the federal courts.  And so there is that opportunity—we‘re going to have the opportunity to see whether this was legal or not because several terrorist offendants are going to challenge this.

MATTHEWS:  President of the United States said he was angry at the news media for reporting this.  If he‘d had his way and the president had his way, which was fair enough for him to take that position, and the media hadn‘t broken this story, hadn‘t scooped it—OK, we wouldn‘t be talking about it.  And the public wouldn‘t know about it.

KOBACH:  Well, but our representatives in Congress would.

MATTHEWS:  They don‘t.  No.  People like Specter are quite upset, I can tell, that they hadn‘t been notified about this system. 

KOBACH:  But on 12 occasions, members of the House and Senate Intelligence Committee were...

(CROSSTALK)

MATTHEWS:  Intelligence committees.

KOBACH:  Sure.

MATTHEWS:  But the Judiciary Committee doesn‘t know about it.  The leadership doesn‘t know about it.  The average member of Congress didn‘t know that the United States government was surveilling their e-mails, surveilling people‘s phone conversations. 

You have a circular argument.  You say trust them to follow the law, except that they‘re not following the law, and you‘re admitting they don‘t have to follow the law. 

KOBACH:  I‘m not saying that we have to completely trust them. 

There are judicial checks.  And we do have those members of the Intelligence Committee.

But there‘s a problem.  You might say, well, let‘s let every member of Congress know.  The more you widen that circle so that more members of Congress and their staffs know about this, then there are more and more people who might have an incentive to leak.  And it‘s quite possible that the leaks to the “New York Times” may have come from Senate staff.

MATTHEWS:  But you know what you sound like, you‘re justifying secret government. 

KOBACH:  No, not at all.  Not at all.

I‘m not saying that it‘s justified.  I‘m saying here that the president has certain authorities that only exist during wartime and we have...

(CROSSTALK)

MATTHEWS:  ... wartime is defined as any time we have troops in the field.  Well, we‘re going to—from the way this is going... 

KOBACH:  The courts have said that. 

MATTHEWS:  The way this is going, we‘re going to have troops in the field for a long time. 

KOBACH:  Well, we have a political check on that. 

If the people in the United States don‘t want that to happen, they can vote the president out.

MATTHEWS:  As long as we have troops stationed in Iraq, the president has this grand authority to act as commander-in-chief. 

KOBACH:  Well, that would be a different question, because suppose we had a situation like Korea where we have indefinite troops deployed in Iraq?

(CROSSTALK)

MATTHEWS:  If that were the situation in Iraq, this wouldn‘t be the biggest issue in the country right now.

KOBACH:  Right.

MATTHEWS:  Excuse me. 

The situation in Iraq has nothing to do with the situation in Korea.  In Korea, we had half that country behind us and the guys didn‘t have to watch their backs. 

We now have guys deployed in Iraq right now who could be hit from every direction, OK.  So it‘s a totally different situation. 

KOBACH:  My point is you were saying if we have indefinite deployment. 

Now, indefinite deployment...

(CROSSTALK)

KOBACH:  The court might actually draw a line and say, well, at some point this is not a—something that triggers wartime powers. 

MATTHEWS:  But you‘re saying the White House did not have to bring it to the court. 

KOBACH:  The White House didn‘t have to bring it.  Under Article 7...

MATTHEWS:  Then how can the court rule on the limitations of power if they‘re not informed of the president‘s conduct?

KOBACH:  Because sooner or later, these matters do come to a court when a defendant says, “You know what, they got that information from me through a way that I believe was unconstitutional or illegal.” 

MATTHEWS:  This is a controversial issue, Chris. 

But thank you for coming in.

KOBACH:  Absolutely.

MATTHEWS:  Chris Kobach.

You might be right, but a lot of people disagree.

Up next, is enough being done to protect our borders from terrorists and illegal immigrants?  Apparently not. 

We‘ll ask the secretary of homeland security Michael Chertoff.  He‘ll be with us from that California-Mexico border down below San Diego.  He‘s down there today.

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Michael Chertoff was sworn in as the homeland security secretary last February.  He‘s only the second person in history to ever have the job.  And his first year was dominated by trying to manage the federal government‘s response to the devastation of Hurricanes Katrina and Rita. 

Today‘s he in California talking about immigration.  And he joins us from the Mexico border just outside of San Diego. 

Mr. Secretary, thank you very much for joining us. 

What takes you to the border today? 

MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY:  Well, I‘ve actually been going down to the border once or twice a month over the last few months to see the way in which we use our operations and adapt them in different terrain based on what the challenges are. 

Here we deal with the largest port of entry in the world in San Sidro (ph).  We‘ve got an urban area which is right up against a Mexican urban area.  Those are unique challenges.

And the Border Patrol has been showing me how we adapt to those challenges with our resources and our technology. 

MATTHEWS:  You know, all of us have seen the pictures of Mexican people, usually young men, racing across the border at nighttime, coming here to try to get jobs. 

How do you stop that? 

CHERTOFF:  Well, Chris, I think you‘ve got to do a couple of things. 

First, we do have to take some new steps to control the border, and that‘s the right mix of additional personnel.  We‘ve got almost 2,000 new Border Patrol coming on line in the last 18 months.  Also, technology and some additional fencing. 

We also have to be tougher on interior enforcement for people who are employing illegal migrants.

But I also think we got to have a temporary worker program.  We got to have some channel for people who want to come and do work in this country to register, get under control, have it be temporary, not an amnesty, but take some of the pressure off our border. 

MATTHEWS:  You mentioned the employer sanctions question.  The House of Representatives, the Republican-controlled House, has pushed a measure that would basically raise the cost of hiring an illegal employee and therefore cut off the job market for people that might be thinking of coming across the border. 

Why doesn‘t the president support that measure? 

CHERTOFF:  Well, I think, you know, as we see the way the legislation moves through Congress, we‘re going to see if it has the right mix of approaches. 

The president is very, very strong on having a tough enforcement policy, including a tough policy that focuses on employers who are employing illegal migrants. 

We also have to make sure that we give them a ready and easy way to verify the employment status of workers.  It‘s not fair to say to employers, you‘ve got to verify, if we don‘t give them the tools to do that verification. 

MATTHEWS:  I hear all you have to do is ask a person their Social Security number and ask them the date of birth and you could identify whether they‘re that person or not. 

CHERTOFF:  Well, one of the things we are looking at is whether we ought to change the rules about how we require people to follow up when they have a worker whose Social Security number doesn‘t match the name.  That doesn‘t, of course, address the entire problem, but it certainly addresses a big chunk of the problem.

And right now we‘re studying all kinds of ways we can help employers verify the status of their workers, and at the same time we‘re stepping up our enforcement actions so those who don‘t want to verify their status are going to wind up being held to account.

MATTHEWS:  So you think the president will get as tough as the House on this, as the House Republicans?

CHERTOFF:  Well, I mean, I think in terms of enforcement, the president is really dedicated to a tough enforcement policy.

I do think though he wants to marry it to a temporary worker program, because I think enforcement alone is going to be very hard on the border patrol.  It‘s going to be a tremendous amount of pressure drawn by that economic demand for migrant workers.  So I think only a comprehensive approach is one that really gives us a recipe for success.

MATTHEWS:  Do you think the minutemen, those are basically anglos that go down there or ethnic anglos, to go along the border and patrol and looking for illegal Mexican entrants crossing our border, do you think that helps American security or hurts it?

CHERTOFF:  You know Chris, I think the border is a place for professionals and in fact being we‘ve unfortunately seen an increase in violence on the border.  I get concerned that civilians who come down, they obviously feel strongly, they want to make a statement, but I‘m concerned we‘re going to have an incident one day where they‘re going to encounter a criminal gang and someone is going to get shot. 

I think we‘ve got to leave the mission to the trained members of the border patrol, we‘ve got to equip them.  We understand the fact that people are concerned about the border.  They have a right to be concerned and upset.  We‘re responding to it.

MATTHEWS:  Are you now warning minutemen not to go down there, that it‘s dangerous?

CHERTOFF:  Well, I just think it‘s common sense tells you, the border is a tough environment.  We‘ve had an increase of almost 100 percent in this sector in the last year on acts of violence against border patrol agents by these illegal migrants and some of these illegal gangs.  So I say to myself, an untrained civilian who comes down to the border, runs a risk they‘re going to encounter somebody who is a bad actor and I‘d hate to see that result in a tragedy.

MATTHEWS:  Let‘s ask a—let me get into this other area that‘s come up the last couple of days.  And you‘ve been under fire from people, I understand why, from people like Senator Harry Reid, the Democratic Senate leader from Nevada, and from Mike Bloomberg, the sort of nominal Republican from New York, the mayor up there. 

They‘re both complaining that your priorities in terms of spending money to protect America left their Las Vegas and their New York City at the wrong end of the train.

CHERTOFF:  Well, Chris, you know, there‘s only two ways to do this issue of funding.  One is to do it by giving everybody a little bit of something so they go away happy, and the other is to use a disciplined, risk-based approach, that really evaluates the consequences, the vulnerabilities and the threats of every community.

One thing to remember is, you know, there‘s not any single one grant program that covers all the needs of this country.  We run a lot of different programs.  Some communities are eligible under one, they may not be eligible under another.

But the larger issue is still this.  Either we‘re going to do this in a disciplined, sensible way and really focus the money where the highest risk is, or we‘re going to play politics with it and spread it around like party favors.  And I think I‘ve made it pretty clear in the last couple of days, as I have in fact in the last year, that I think my obligation to the American public is to be risk-based and not political.

MATTHEWS:  Well, Harry Reid, I know he has an interest and all politics is local.  But he says that Las Vegas had more people there on New Year‘s Eve than New York City did and he argues, I guess, that that puts a big risk on his city.  Is there some other factor he‘s missing?

CHERTOFF:  Well, as a matter of fact, Chris, you know, we take account of that.  And during New Year‘s Eve, we actually had a stepped-up law enforcement presence in Las Vegas, precisely because that is a particular event that has a particular vulnerability.  And that‘s an example of my earlier point. 

Sometimes we address the issue of vulnerability through different kinds of programs.  In the case of Las Vegas over New Year‘s, we focused on it in a specific program, focused on New Year‘s.  It doesn‘t mean though that everybody‘s going to get a piece of every program.  I understand there‘s strong feelings about this.  I said up front, I knew I was not going to necessarily be the most popular guy in Washington by taking this disciplined approach, but that‘s what we‘ve got to do.

MATTHEWS:  Let me ask you about this hot question of the NSA.  I Was away for a couple of weeks and I was surprised at how much heat there has been about this presidential decision to target some of these groups that have business with al Qaeda apparently, overseas.  And to surveil their electronic communication, their phones and their e-mails.  Is that something you feel you can defend yourself as homeland security secretary?  That policy?

CHERTOFF:  Well, you know, these are classified programs I‘m not going to get into specifics, but I can tell you this, Chris.  The bottom line in defending this country against the threat of terrorists coming in from overseas is you‘ve got to detect them and prevent it from happening.  That is the best outcome.

Now in the 20th century, bombs came in airplanes, in missiles and we had radar.  Our radar in the 21st century is intelligence.  It‘s intercepting, it‘s gathering information about telephone contacts, it‘s questioning people who have information.  If we don‘t use all of these tools, it‘s as if we were taking our radar and closing it down and putting it in the cupboard.  And I don‘t think we can do that responsibly to the American people.

MATTHEWS:  Do you think the vice president was right when he said that there had been no more 9/11‘s because we‘ve been on alert and used this technology effectively?

CHERTOFF:  I don‘t think there‘s any doubt that the whole package of things we‘ve done in our strategy, going after the terrorists in Afghanistan, capture and killing them, using enhanced information sharing, enhanced information technology, disrupting plots.

All of these things I think have given us four years of being left without a successful attack if this country.  But if you look at London last year, if you look at what‘s happened in the Middle East, if you look at what‘s happening in Indonesia, you‘d be foolish to think this threat has gone away.  This is a very active threat. 

I spend, you know, every day looking at the threat information and I can tell you that we cannot lay down our arms at this point in time.

MATTHEWS:  OK.  Mr. Secretary, thank you for your service, by the way.  I won‘t say that you‘re doing a heck of a job because that would be kind of funny, but you‘re doing a great job. 

Thank you very much, Michael Chertoff, secretary for homeland security. 

CHERTOFF:  Thanks a lot, Chris.

MATTHEWS:  When we return, will Congressman Tom DeLay get nailed by the Abramoff scandal?  And will some big-name Republicans calling for his removal get their way?  Are his days in Congress essentially over?  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  On the fallout of the Abramoff scandal, politicians are ridding themselves of thousands of dollars either gained from Abramoff directly or connected to him.  But are Democrats really in as deep as Republicans contend, or is this a GOP problem stemming from a fallen Republican super lobbyist?

For more on this, we turn to Roger Simon, chief political correspondent for Bloomberg News—and he‘s one of the best there is in politics—and MSNBC‘s chief Washington correspondent Norah O‘Donnell.  Thank you, Norah.

Let‘s—I want to start with Simon here—Roger, because you‘ve covered so many campaigns, you‘ve covered so many politicians, you write beautifully and these guys are all shedding like the dogs in shedding season.  Everybody is giving away their money, giving it away.  Hillary Clinton even giving a thousand bucks away.  I‘ve never seen so many people giving so much money away to charity overnight because they don‘t want this Abramoff money. 

ROGER SIMON, BLOOMBERG CHIEF POLITICAL CORRESPONDENT:  They just discovered money is bad.  It used to be good and they want more of it, but the Republicans I talked to are very worried that even if the indictments come down, you know, six Republicans and six Democrats, that the party in power is going to be the party that gets the blame and we know who the party in power is. 

MATTHEWS:  So if you have the majority you‘re seen as the responsible party? 

SIMON:  Not just the majority.  But I don‘t think it‘s any secret that the Republicans control Congress, the Republicans control the White House.

MATTHEWS:  And this guy is a Republican.

SIMON:  And this guy is.

MATTHEWS:  Norah, is there a sense on the Hill that—there must be.  What‘s the motivation for people dropping all this money?  It‘s like at Christmastime you used to get a fruitcake for Christmas and the fastest thing you did was give it to somebody else.  I mean, these guys are dumping this stuff.

NORAH O‘DONNELL, MSNBC CHIEF WASHINGTON CORRESPONDENT:  It stinks.  Get away from it.  It‘s not worth it.  The money is not worth it.  What‘s interesting is that there are senior Republicans who are saying that unless they become the party of reform, that Republicans will lose the House of Representatives. 

Now the Democrats have already beaten Republicans to the punch, if you will.  Congressman Nancy Pelosi and Senator Harry Reid say they‘re going to start in January.  They have already got a reform proposal ready, and that‘s the sort of thinking. 

Whichever party can show that they‘re going to reform the system and clean it up may benefit at the polls.  Because right now, according to our last NBC News/”Wall Street Journal” poll and other polls, the American public sort of equally think both parties are responsible for a culture of corruption. 

MATTHEWS:  Fair enough, but Newt Gingrich as a reformer?  I mean, I guess I remember—I said the other night it reminds me the line about Doris Day, I knew her before she was a virgin. 

SIMON:  Yes, exactly.  Well, he knows about money and he knows how it‘s gone. 

MATTHEWS:  He did leave the house under sordid circumstances, a girl at the Ag Committee, right? 

SIMON:  Oh, yes.

MATTHEWS:  I mean, a little problem with a book.

SIMON:  Could Newt be running for president?  You think that‘s possible?  Look, I think the public has a relatively high tolerance for corruption but it has a relatively low tolerance for arrogance, and what we‘re seeing here is the arrogance of power. 

Few people get free golf trips to Scotland.  Few people get $50,000, $70,000 checks dropped in their checking account to do with what they will, and that is what is ticking off the public, not just the money changing hands.  They‘ve known about it; the public is not stupid, but is a party so arrogant that it feels it‘s specially privileged.  This is why the Democrats lost in 1994.  It was the arrogance. 

MATTHEWS:  You mean to tell me that power tends to corrupt and absolute power corrupts absolutely? 

SIMON:  Well, I think that‘s been said. 

MATTHEWS:  I know it has, and it‘ll be said a million years from now. 

We‘ll be right back with Roger Simon and Norah O‘Donnell. 

And a reminder, for the best political debate on line, just to hardblogger, our political blog Web site, and now you can download podcasts of HARDBALL.  Just go to our Web site, hardball.msnbc.com.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Bloomberg chief political correspondent Roger Simon and MSNBC chief Washington correspondent Norah O‘Donnell. 

Norah, let me go through the settling out of this thing, the way we set it up.  So far most of the names on the short list connected to Abramoff are Republican.  There are some outlying names that keep popping up.  Hillary Clinton gave back $1,000 today.  Harry Reid‘s got a little connection through some Indian tribe.  Conrad—what‘s the other guy‘s name? 

O‘DONNELL:  Burns. 

MATTHEWS:  Burns—Conrad Burns involved here, at least tangentially. 

Is this a partisan problem in the main? 

O‘DONNELL:  It‘s a great question.  Is this only a Republican Party problem?  Listen, when it comes to personal contributions by Abramoff and his wife, he only made personal contributions to Republicans.  Those Republicans have got to return those personal contributions, just like President Bush returned those contributions. 

When it comes to the lobbying firm where Abramoff worked, when it comes to a lot of his clients, he spread the money around to both Republicans and Democrats.  Yes, Republicans got the overwhelming majority of it, but lots of Democrats did, too. 

But what‘s interesting about what‘s going on is that you now have about two dozen lawmakers who have returned about half a million dollars in contributions.  Most of those are Republicans, some Democrats. 

But the leader in the Senate, the Democratic leader in the Senate, Harry Reid, refuses to return those contributions from Indian tribes.  Now, his response is listen, I‘m from Nevada, I‘m from the state that has Las Vegas.  I‘ve been taking money from these people all the time.  But I‘m told there was an internal debate within his office that listen, you can‘t keep this money, the taint is so bad. 

And also Congressman Patrick Kennedy on the House side who took a lot of money from tribes too, isn‘t going to return that money.  But that‘s the type of things—Republicans are using that to say it‘s not just a Republican Party problem. 

The Democrats were taking this sleazy money, too, and trying to spread it around.  Again, the solution for whichever party is to show that they are the party of reform and that they want to clean up Washington. 

MATTHEWS:  Let me put this—you‘ve been covering politics, like I said, for a long time and put this in perspective.  Is this like ABSCAM, where you caught a lot of guys in a sting operation, a lot of Democrats from basically Philadelphia and New Jersey?  Is this like Watergate?  Is this like the House banking scandal?  Where do you put Abramoff so far?

SIMON:  Well, in terms of a successful prosecution, as you pointed out, it‘s got a dead bang winner on bribery, but this is s rMD+IN_rMDNM_case where the government has the briber.  I mean, there‘s no honor among thieves anymore.  The guy bribes you and then he rats you out.  And this is the power of ...

MATTHEWS:  Can he stay bought? 

SIMON:  This is the power of the government‘s case.  Abramoff will testify ...

MATTHEWS:  I have to tell you, I agree with you. 

SIMON:  ... about what he did. 

MATTHEWS:  I‘d be petrified because he‘s got staffers who work for members are going to rat out their members.  I‘ve never seen that.  Norah, quickly.

O‘DONNELL:  And, Chris, and as law enforcement officials said today, this is just beginning because Abramoff is just starting to talk to them. 

(CROSSTALK)

MATTHEWS:  Frank Pentangeli.  Frankie 5 Hs (ph).  Norah O‘Donnell, Roger Simon.  Right now, it‘s time for “THE ABRAMS REPORT” with Dan.

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

Copy: Content and programming copyright 2006 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2006 Voxant,Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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