updated 6/14/2007 11:31:21 AM ET 2007-06-14T15:31:21

Guests Sen. Trent Lott, Joe diGenova, Richard Ben-Veniste, Eugene Robinson, Matt Continetti, Ana Marie Cox

CHRIS MATTHEWS, HOST:  Bush hits the badlands.  Two of his staffers face subpoena, another is heading to federal prison for perjury.  Iraq‘s a disaster, his own party in turmoil, and now Hillary‘s ahead in the race for the White House.  Maybe it‘s the president who needs a pardon.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews.  Welcome to HARDBALL.  Bring me the head of Karl Rove.  Democrats were firing off subpoenas today like 4th of July fireworks.  Their target is Democratic enemy number one, the man who carries what Democrats would call the diminutive title of “Bush‘s brain,” Karl Rove.  Democrats want to surround Rove in subpoenas, then destroy him.

Bizarrely, President Bush‘s political machine has never looked more broken down.  The folks in Iraq are refusing to do anything that could end the civil war over there.  Back home, the immigration bill is rattlesnake-bit.  And Bush and Cheney‘s former assistant for national security, Scooter Libby, may be sent off to prison tomorrow.  Proof of the president‘s problem is that the old owner of the Texas Rangers is now desperately looking to the bullpen.  He‘s bringing in an old hand—Ed Gillespie has been on this show many times—to help with his political problems, as White House counselor.

At the same time, his party, the Republicans, are looking to veteran Fred Thompson as a relief pitcher for a line-up of Republican candidates tat has obviously failed to fire up the Republican base.

Now comes the worst news, the latest poll out tonight, our own poll, NBC poll, shows that Hillary Clinton, with her husband, of course, running political shotgun, is coming back to pick up the pieces.  Remember that NBC poll we showed you in March that had Rudy Giuliani beating Hillary Clinton?  Well, the new NBC poll I announce right now for the first time has Hillary beating Rudy.  Big turnaround for Hillary.  She‘s up, Rudy‘s down, and he‘s the hottest Republican running for president.

But first tonight, here‘s HARDBALL‘s David Shuster on that congressional set of subpoenas headed toward those two White House aides.

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  Today, two Democratic congressional committees issued subpoenas for White House documents and testimony related to the controversial firings of federal prosecutors.  Democrats ordered former White House aide Sara Taylor and former counsel Harriet Miers to testify next month about White House involvement.

SEN. CHUCK SCHUMER (D), NEW YORK:  We still haven‘t found out who actually concocted this scheme.  You know, many people suspect Karl Rove.  The only way we can find out is by questioning him and questioning the people in his office, and that‘s what we‘re going to do.

SHUSTER:  The Democrats, however, did not actually issue a subpoena today for Karl Rove.  Instead, they say, they will work up the chain, targeting Rove‘s aides and then ratcheting up the pressure on him and on an administration that has so far refused to make any White House officials available for testimony under oath.

The documents and evidence collected by Congress so far from the Justice Department suggest that Attorney General Alberto Gonzales allowed his traditionally independent agency to be run, in effect, by the White House.  Documents released months ago refer repeatedly to Harriet Miers‘s involvement in the prosecutor firings, and documents released this week show deep involvement by White House political aide Sara Taylor.

In a February 16 e-mail, Taylor described a U.S. attorney in Arkansas who was dismissed last year as “lazy, which is why we got rid of him in the first place.”  Performance reviews of U.S. attorney Bud Cummins never mentioned any problems with Cummins‘s work ethic, and lawmakers believe he was actually fired to make room for Rove aide Tim Griffin, who was previously the head of the Republican National Committee‘s opposition research team.

SCHUMER:  This is pretty serious stuff.  It‘s not—you know, if this were trivial, you‘d say, OK, well, we can‘t find out.  But it‘s very serious, very serious, and it gets more serious all the time.

SHUSTER:  Over the last several months, one Bush Justice Department political employee after another has denied being very involved, leading to further suspicions about the White House.  Technically, President Bush could now try and block the subpoenas by going to federal court, but it‘s unclear if the Bush administration is willing to take that dramatic step for relatively unknown White House aides.  And Democrats are betting that once any White House officials testify, there will be increased pressure on Rove to agree to testify, as well.  Today at the White House, spokesman Tony Snow accused Democrats of engaging in political theater.

TONY SNOW, WHITE HOUSE PRESS SECRETARY:  It seems that right now, there‘s more interest on the media circus, and witness the fact that it was arriving over your Blackberries this morning before we had been informed, so at this juncture, you know, it‘s clear that they‘re trying to create some media drama.

SHUSTER:  But with the Bush administration facing record low approval ratings, Democrats smell blood in the water and now seem eager to capitalize.  The subpoenas mark the first time in the U.S. attorney scandal that Democrats have decided to try and force White House officials to testify.

Furthermore, Democrats now believe the White House is in such awful political shape that there is little danger of Democrats facing a public backlash in pursuing allegations of corruption.

(on camera):  Making the U.S. attorney scandal even more tantalizing is that much of it seems to lead back to Karl Rove.  “Bush‘s brain” is the man Democrats love to hate, of course, but even a few Republicans who have done battle with the White House seem to be taking great satisfaction in watching Karl Rove getting squeezed.

I‘m David Shuster for HARDBALL in Washington.

(END VIDEOTAPE)

MATTHEWS:  Thank you, David Shuster.  For more on the federal

prosecutor firings and other top political stories of the day, we turn to

House minority whip—actually, Republican majority (SIC) whip, Senator

Trent Lott of Mississippi.  Somebody—one of my producers tried to reach

send you back to the House of Representatives, of all things to do! 

Hey, thank you for joining us, Senator, from Capitol Hill.  What do think is going on with all these subpoenas fired at the White House staffers?  Is the target Karl Rove.

SEN. TRENT LOTT (R-MS), MINORITY WHIP:  Oh, it‘s just more political shenanigans, Chris.  It‘s kind of like the non-binding, irrelevant, you know, and unenforceable resolution that Chuck Schumer introduced to say we have no confidence in Alberto Gonzales.  That hasn‘t happened in my 39 years here in Congress.  It was much ado about nothing, and I suspect this is what‘s going on here, too.  It‘s just political theater because I don‘t see there‘s any way the president could have his—some of his top aides, or former aides, like Harriet Miers and Karl Rove be subpoenaed up here and have to give testimony.

I do think that they have and they should try to work out some way where information and even, you know, being able to make a statement before the right people could be worked out.  I thought they would try to do that.

But instead of this sort of thing, we really need to be trying to deal with some of the really, really important and tough issues that face our country, Chris.  Obviously, we‘re still struggling with what do we do on immigration reform.  The Senate‘s got energy legislation.  And now we understand that Harry Reid may even try to bring up a bill to say that union members could sign up for a union by postcard.

I don‘t know.  I—you know, they talk about the ratings of the president.  There is something that‘s got a lower rating than the president.  It‘s the Congress, unfortunately.

MATTHEWS:  Well, unfortunately, you‘re true—or right.  Let me ask you about immigration.  It looks to me like it‘s dead.

LOTT:  No, it‘s not dead.  I know there‘s a lot, you know, angst about it.  My phones have been jammed for three weeks.  People are very concerned about it, very worried that the borders haven‘t been enforced, the law hasn‘t been enforced, and that this bill doesn‘t do what needs to be done.

Now, a lot of it is misinformation or lack of information, and we need to a better job in that regard.  We certainly need to try to address this issue and we need to try to make it better.  There is a process under way to try to come to some agreement on important amendments that should be voted on.  Hopefully, some of them will pass.  Last year, for instance, Chris, I voted to move the process along to try to get a better bill, but I really felt like, at the end of the day, the bill was worse.  I voted against it.

This time, again, we should make the effort.  And if we can get an agreement on amendments that should and could be offered, that could change a lot of things in this bill to make them better, then I think we can get cloture to get back on the bill and get to a conclusion.  In the end, if it‘s—you know, if it‘s better then current law, you can vote for it.  If it‘s not, you can vote no.  But to not try to get a result, I think, is not the responsible thing to do.

MATTHEWS:  Do you believe that the people pushing this so-called reform bill want to enforce federal law, or are they just looking for a way to legalize people who are here illegally?

LOTT:  Oh, I suspect that there‘s some of both, Chris.  And it‘s very interesting, some of those that are for it.  What are their real motives?  And it‘s real interesting that you got people on the far left and the far right that‘s against it, too.

And there‘s some merit to all of the arguments.  What I‘m saying is, Look, is the current situation working?  No.  Has the law been adequately enforced?  No.  Have secured the border?  No.  Do we need a legal, enforceable, identifiable guest worker program?  Yes.  And there are a lot of other things that we need to do.  It is one of the more difficult and one of the more complicated bills that I‘ve ever had to deal with, but I think we should try it.  Why are we here?

MATTHEWS:  OK.  So let me...

LOTT:  To vote on subpoenas that are not going anywhere?

MATTHEWS:  I agree with (INAUDIBLE) Is there any way we can stop illegal immigration into this country until we have a national ID card, so you and I can go apply for a job, somebody else can apply for a job, and we can prove that we have a right to work in this country and live in this country?

As long as people oppose an ID card, it seems to me impossible to punish an employer for hiring somebody.  How do you know the person‘s here legally unless people who are here legally have an ID card?

LOTT:  I agree with you on that, Chris.  And I...

MATTHEWS:  Nobody wants to—I don‘t think the Hispanic groups...

LOTT:  Well, I...

(CROSSTALK)

MATTHEWS:  The liberals don‘t want to face up to it.  Labor doesn‘t want to face up to it.  Why don‘t you do something right off the bat, pass a law that says you can‘t be in this country unless you can prove you‘re in this country legally?  Then we‘ll move on to all these nice liberal reforms after you‘ve said we‘re going to enforce the law.

LOTT:  Well, we should do that.  We should enforce the law.  We should enforce the border.  We should have a legal ID card that is encrypted, where employers know that these people are legal.  We need an enforceable, identifiable guest worker program...

MATTHEWS:  Thank you.

LOTT:  ... where when they come in here, we know who they are, we know where they are, and that—and by the way, they have to go back at some point, too.  So I‘m prepared to do that.  But the bill has a convoluted process.  There‘s several different ways you can, you know, have proof, legal proof, of who you are.  But I don‘t understand the angst about having a real...

MATTHEWS:  I know.

LOTT:  ... legitimate ID card.

MATTHEWS:  You‘ve got one.  It‘s says you‘re a senator and you‘re Trent Lott and you can‘t be anybody else.

LOTT:  I‘ve got a Social Security card.

MATTHEWS:  You can‘t claim to be somebody else.

LOTT:  I‘ve got a driver‘s license.

MATTHEWS:  This is delusionary!

(CROSSTALK)

MATTHEWS:  People out there are—right and left, are delusional.  Until we can prove we‘re in the country legally, you can‘t prove somebody‘s in here illegally.

LOTT:  That‘s right.

MATTHEWS:  It‘s common sense.

LOTT:  Yes.

MATTHEWS:  Senator Trent Lott, you are a mainspring of common sense.

(LAUGHTER)

MATTHEWS:  Thank you, sir, for joining us...

LOTT:  Thanks a lot, Chris.

MATTHEWS:  ... Senator Trent Lott, Republican whip, number two guy in the Senate.

Coming up: A Washington lobbyist and long-time go-to guy, in fact, a familiar face on this program, Ed Gillespie, is being sent to the White House to become, apparently, the top counsel to the president.  Why are they bringing in the bullpen guys?  What‘s going on there?

This HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Today President Bush brings a Republican Party insider into the White House inner circle.  Ed Gillespie used to be the Republican Party chief, and now Bush‘s White House—

(INAUDIBLE) Bush‘s White House counselor.  Gillespie knows how to get things done in D.C., that‘s for sure.

Let‘s see why he‘s bringing him in with NBC chief White House correspondent David Gregory.  He joins us from the North Lawn of the White House.  David, it is so great to have you on tonight...

DAVID GREGORY, NBC CORRESPONDENT:  Thank you.

MATTHEWS:  ... because you know what‘s going on at the White House. 

And I have to...

(LAUGHTER)

MATTHEWS:  I‘m serious.  I‘m setting you up, but it‘s true.  This set of subpoenas headed at Harriet Miers and Sara Taylor—they‘re going after the little folks to get to the big enchilada, is that what they‘re doing, surrounding Karl Rove?

GREGORY:  Right.  I mean, this is the game that is—I don‘t mean to dismiss it, but I mean, that is the tactical game that‘s being played to try to get at what they think is the real truth of the matter here, which is that all of this business about the firing of the attorneys came out of the White House and was the political arm of the White House, which, of course, is Karl Rove, and that Harriet Miers was involved in that, but that she had meetings and that Karl Rove was somehow involved.

So that‘s why, as a political matter and a tactical matter, you‘ve seen the White House say, No way.  Fred Fielding‘s been around this town for a long time.  He‘ll offer interviews, but he‘s not going to put people under oath...

MATTHEWS:  Yes.

GREGORY:  ... because the feeling is, If we give them any of these people, they‘re just going to keep coming inside the White House.  It‘s also been the thinking about why they‘ve let Gonzales stay on as long as they have.

MATTHEWS:  So no—no subpoenas will be honored by the White House. 

They‘re not going to let anybody testify.

GREGORY:  No, I...

MATTHEWS:  The way you see it.

GREGORY:  I think they‘d rather tie this up in the courts over executive privilege, rather than go down that road.

MATTHEWS:  OK, what‘s Gillespie coming back to the White House for?  Do they—is somebody over there like Josh Bolten, the chief of staff, trying to bulk up the political savvy there?

GREGORY:  Well, more than anything, you know, losing Dan Bartlett, you lose somebody who was very close to the president, who knew how he thought over a long period of time.  So how do you replace that?  Well, you have to have a comfort level.  Gillespie‘s been around.  He‘s been around this group.  He worked in the latter part of the election year in 2000, of the general election campaign, so he knows the president.  He knows Karl Rove, obviously, because Rove was instrumental in...

MATTHEWS:  Yes.

GREGORY:  ... putting him at the RNC.  So that matters.  And it was Bartlett and Bolten who led the search for Gillespie.  And as I say, he‘s also been around for key moments as a counselor on the Supreme Court nominations, dealing with the Hill, so he‘s worked enough around important decisions that the president has made that he felt comfortable enough bringing him on.  And there was, you know, kind of an unwritten contract with all of this that Bartlett could leave only when he‘d secured somebody on level of Ed Gillespie to replace him.

MATTHEWS:  Another staff problem, Scooter Libby facing imprisonment tomorrow.  He may be ordered by the judge to not get bail and go directly to jail, have to show up in prison within 45 days or so.  If that happens, and it looks like it may well happen tomorrow, is this president under enough pressure to pardon the fellow, his guy?

GREGORY:  You know, it seems like the pressure is great enough that he would want to do it, and you could certainly argue that what else has he got to lose?  Is he going to become any more unpopular?

MATTHEWS:  Sure.

GREGORY:  So I think there‘s lots of reasons to do it.  It‘s whether, you know, the president can absorb that blow right now.  You know, Bill Clinton suffered a blow for Marc Rich at a different point in his presidency, also late in the presidency, but this one is still pretty highly charged, and it would be a pretty big distraction.

But at the same time, I mean, I don‘t have to tell you, look how much heat the president has from the right...

MATTHEWS:  Oh, it‘s awful.

GREGORY:  ... on immigration, on the war and the rest.  And this is only going to increase as—especially as Scooter Libby goes to prison.  So I think, you know, if the time for action is not immediate, the pressure only grows as it gets farther down the line.

MATTHEWS:  Why can‘t the White House get its act together on immigration?  I couldn‘t get a straight answer from Tony Snow last night on how do you—how do they intend to identify who‘s in this country legally or illegally?  It seems the most basic question.  How can you put an employer in jail for hiring somebody illegally if there‘s no way to prove a person‘s here legally?  They don‘t seem to have an answer to that question, no ID card answer to any of these questions.

GREGORY:  I think one of the reasons it‘s so difficult is that they are caught up in the effort to get a political compromise that still leaves the heart of this bill and the mechanics at the heart of this bill, still very, very difficult.

GREGORY:  You know, there are people on the left who don‘t like a guest worker program for various reasons, people on right who don‘t like it because they think it‘s amnesty.  But what about the people who you‘re trying to coax out of the shadows...

MATTHEWS:  Yes.

GREGORY:  ... and all of the loops that they have to cross through to meet the criteria for a guest worker program?  So I think these are the more difficult questions for the White House to answer on the sheer mechanics of this thing.

But let‘s be honest, they‘re not even at the mechanical argument.  This is still a threshold question with the right.  But look, there‘s plenty of people on the left who don‘t like this, either, even as the polling shows...

MATTHEWS:  I agree.

GREGORY:  ... that most people want a solution.  That‘s what they‘re up against.  And here‘s the real point, is that I don‘t think the president right now has any ability to make his weight felt.  All he can do is try to field the complaints, as he did yesterday, from the right and on the polling and all of the rest and, you know, try to work on some of the leaners who he can get.

MATTHEWS:  Yes, well, the last thing this country needs is another meaningless signing ceremony.  We‘ve had enough of those.  What we need is law enforcement.

Thank you very much, David Gregory...

GREGORY:  OK.

MATTHEWS:  ... chief White House correspondent for NBC News.

Coming up, the HARDBALL debate tonight.  As subpoenas are issued to two White House—or former White House officials now, is that fair game or is that politics?

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back.

It is time for the HARDBALL debate tonight.  And it‘s a hot one tonight.  We‘re going to have two of them tonight, in fact.

The House and Senate Judiciary Committees issued subpoenas today for former White House counsel Harriet Miers and former White House political director Sara Taylor on their roles in the firings of eight federal prosecutors by the Justice Department last year. 

Is this a witch hunt or a legitimate inquiry? 

Here to debate that question:  Richard Ben-Veniste is a former member of the 9/11 Commission.  He‘s also a former assistant U.S. attorney who served as chief of the Watergate Task Force.  And attorney Joe diGenova is a former U.S. attorney and a former independent counsel.

Joe, we are going to get to this question of the Scooter Libby pardon in one second. 

First of all, I want to get you answer to the news today.  Are the Democrats up to a game here, subpoenaing White House staffers?  Are they really trying to get to the truth of why eight U.S. attorneys, one of which you used to be, have been sacked? 

JOE DIGENOVA, FORMER FEDERAL PROSECUTOR:  Well, it‘s probably both.

You begin with the proposition that the president has the constitutional right to fire any United States attorney at any time for a reason or for no reason.  The manner in which this was handled, clumsily, I think anyone would admit, has created the imbroglio.

And the Democrats are doing what any committee would do.  I think, if the Republicans were in control, they would be trying to find out what happened here.  Now, that does not mean that they are going to succeed.  It doesn‘t—first of all, there‘s no evidence that any criminal activity occurred in the firings. 

There may be evidence that there was political activity, but that may not raise a sufficiently broad question that—that the president feels compelled to respond immediately to these subpoenas, which, of course, they are not going to. 

MATTHEWS:  Richard Ben-Veniste, should the White House honor these subpoenas? 

RICHARD BEN-VENISTE, FORMER 9/11 COMMISSION MEMBER:  I think so.

I think Joe is right, that this is a matter which warrants inquiry.  There‘s been six years of very lax, if any, oversight by the committees controlled by the Republicans of this administration.  And now it is quite appropriate for the Judiciary Committees of both the House and Senate to look into whether the Justice Department has been politicized since being run by default out of the White House. 

Now, up to this point, we have had a lot of finger-pointing in all different directions, but no one has come forward to take responsibility for the decisions about firing these eight U.S. attorneys.

I think Joe will be the first to agree that the Justice Department ought to be above political considerations when it comes to these decisions. 

MATTHEWS:  OK.  Where is the crime here?  Richard, what is the crime here? 

BEN-VENISTE:  It isn‘t a matter of crime, when you have...

MATTHEWS:  It isn‘t?  Then why are we having subpoenas issued and all this investigating going on? 

BEN-VENISTE:  Well, subpoenas—subpoenas do not have to relate to crime.  I mean, my goodness, if that is the threshold, we are in a lot of trouble here.

The Judiciary Committees of both House and Senate have appropriate oversight responsibility about how the Justice Department is being run.  If it‘s being run by the attorney general, fine.  If it‘s being run out of the White House political section, not fine—very bad, and a very bad precedent for this country. 

MATTHEWS:  OK.  Let me ask Joe.

Do you think that Karl Rove is calling the shots, and that Gonzales is just a sieve?

DIGENOVA:  You mean in the actual administration of the Justice Department on a day-to-day basis?

MATTHEWS:  No, in making the shots about who goes, who stays? 

DIGENOVA:  Oh, I‘m sure that the political director of the White House or his office would have some input—and that‘s perfectly appropriate—on who should stay or go.  These are political appointments.  The president has a right to fire, for example, the attorney general, the deputy, all the assistant A.G.s, any U.S. attorney in the country.

And there are legitimate political considerations that go into that.  So, if it doesn‘t meet—it doesn‘t matter if Karl Rove was involved or anyone from his office, the political director‘s office. 

For example, they are choosing U.S. attorneys now and federal judges.  The political director‘s office is involved in the vetting process for the nominees for judgeships and U.S. attorneys. 

MATTHEWS:  Right. 

DIGENOVA:  It is perfectly proper.  That does not mean that the Congress does not want to look at this.  Now, whether or not they are going to get the information is—is obviously an open question, and it will probably end up in the courts at some point. 

BEN-VENISTE:  But doesn‘t this ignore the history that we have seen now in the testimony up to this point, Chris, where you have David Iglesias, a good Republican, who has come forward and said, I was fired because I would not do the bidding of political officeholders in bringing a case against...

MATTHEWS:  Yes. 

BEN-VENISTE:  ... a Democrat before the election? 

I mean, case after case after case now seems to involve decisions that should be above politics...

MATTHEWS:  Yes. 

BEN-VENISTE:  ... which were criticized within the administration. 

And that is what these e-mails tend to show. 

MATTHEWS:  Well, Richard...

(CROSSTALK)

MATTHEWS:  ... excuse me for living, but I have been around long enough not to believe that these offices aren‘t politicized.  I watched Jimmy Carter fire David Marston in Philadelphia and southeastern Pennsylvania. 

I—I have to believe Lyndon Johnson fired U.S. attorneys he didn‘t think were doing the political work he wanted done.  It amazes me we‘re setting such a high standard that these guys aren‘t political, when they‘re all political appointments.

These are plum jobs handed out by the president, with the advice of the local senator.  And now you‘re asking these guys to be above politics.  Well, I would like to believe they are now, but I‘m not shocked they‘re not. 

We will be right back with Richard Ben-Veniste and...

(LAUGHTER)

MATTHEWS:  ... Joe diGenova, because Joe is not too happy about this president‘s inactivity on the pardon front. 

We will be right back with more HARDBALL on MSNBC.

(COMMERCIAL BREAK)

TRISH REGAN, CNBC CORRESPONDENT:  I‘m Trish Regan with your CNBC “Market Wrap.”

Stocks surged, as bond yields fell and the economy showed some signs of strength.  Taking a look at these numbers, the Dow Jones industrial average gained 187 points, S&P 500 up more than 22.  And the Nasdaq there, it gained more than 32 points. 

Well, today‘s rally was fueled by the Fed‘s latest Beige Book survey.  It showed the economy gaining momentum on a rebound in manufacturing and in consumer spending.  Meanwhile, inflation appears to be under control.  With that, Fed policy-makers are expected to leave interest rates unchanged once again when they meet later this month, just what investors like to hear.

Well, retail sales, they also surged in May by a larger-than-expected 1.4 percent.  That‘s the biggest increase in 16 months. 

And oil rose 91 cents in New York trading, closing at $66.26 a barrel.  This is partly because of a report showing gasoline stockpiles were actually unchanged this week.  Analysts had been anticipating a pretty big increase there. 

Well, that is it from CNBC, America‘s business channel—back to

HARDBALL. 

MATTHEWS:  Welcome back. 

We continue our HARDBALL debate tonight with a new subject with Richard Ben-Veniste, former assistant U.S. attorney who served as chief of the Watergate Task Force, and attorney Joe diGenova, who‘s a former U.S.  attorney and a former independent counsel. 

Joe diGenova, first up, should Scooter Libby be pardoned by President Bush? 

DIGENOVA:  Absolutely, and the sooner the better. 

MATTHEWS:  Do you believe he will act?

DIGENOVA:  The president?

MATTHEWS:  Yes. 

DIGENOVA:  Absolutely.

MATTHEWS:  Will he do what you want him to do?

DIGENOVA:  Oh, no, he is going to pardon Scooter Libby.  There‘s no question about it. 

The equities here, everything point toward it.  And, while the president has not been a serial pardoner—he and his father have not issued a lot of pardons during their presidencies—this is a—this is a case that cries out for a pardon.  And the justification for it is evident.  And I don‘t think there‘s any question that the president will do it. 

The key will be whether or not Judge Walton sends Scooter Libby to prison in 60 days, or 40 days, or whatever it is.

MATTHEWS:  Right. 

DIGENOVA:  The president will then have to act at the end of those 60 days, because, if Scooter Libby spends one day in prison, the black mark on this president‘s tenure in office will be indelible. 

MATTHEWS:  And it will be his black mark on Bush, not on Scooter Libby, as you see it?

DIGENOVA:  No question about that, Chris, no question.

But I think the president is going to do it.  And I think he understands the reasons for it, all of which are out on the public record. 

MATTHEWS:  Do you have anything to tell us that you know from the inside on that?

DIGENOVA:  Oh, God no.  I wish I could.

(LAUGHTER)

DIGENOVA:  I would have a lot more clients than I do now.

(CROSSTALK)

(LAUGHTER)

MATTHEWS:  OK, let me ask Richard Ben-Veniste.

Should—should Scooter Libby be pardoned by this president in 60 days? 

BEN-VENISTE:  I think that is—that is entirely up to the president. 

He has the right, in his discretion, to do it. 

If he stood up and said, look, Scooter Libby, he was doing our bidding, that this whole attack on the Wilsons, outing Valerie Wilson, who was a covert operative of the CIA, a case officer of the CIA, which our government had invested millions of dollars in developing, casually outed by the administration, through Scooter Libby, if the president wants to step up to the plate and say, I‘m responsible, and I will be a man, and I will take that responsibility by acknowledging it, and issuing a pardon, then so be it.

Let him take the political heat for it and do it.  I‘m of the view that—frankly, that, unless somebody is a danger to the community, unless a—an appeal is completely frivolous, that bail ought to be granted, pending an appeal, because people should not go to jail until they are adjudged guilty, and that means through appeal. 

But, with respect to the pardon, that is entirely up to the president. 

MATTHEWS:  Jerry Ford, the former president, the late president now, pardoned Richard Nixon, under the belief that the Burdick decision, which was a precedent, held that a person who accepts a federal pardon from a president is accepting guilt. 

Do you accept that as a precedent and as a matter of law, Joe diGenova? 

DIGENOVA:  I—I don‘t—first of all, there is no law on that question. 

Whatever the president says who issues the pardon can say that.  A president can say whatever he or she wants or say nothing when a pardon is issued.

Let me just make one point about the under—the alleged underlying crime which was never charged here...

MATTHEWS:  Right. 

DIGENOVA:  ... and apparently never committed, which was outing an agent, when you know that he or she is an agent.

The first person to mention Valerie‘s name was not Scooter Libby.  It was Richard Armitage, the undersecretary of state, in a flippant way, to Bob Woodward and to Robert Novak.  Scooter Libby confirmed later in—at least three or four times that he had spoken about Ms. Wilson with reporters...

MATTHEWS:  Right. 

DIGENOVA:  ... ultimately confirmed that. 

So, the bottom line here is—and—and, by the way, if the CIA was attempting to take active measures, affirmative measures, to protect the identity of Valerie Plame, let me tell you something, their—their—their tradecraft stinks, because you would not send a covert agent‘s—which I believe she was not—a covert officer‘s...

MATTHEWS:  OK.

DIGENOVA:  ... husband overseas, and then let him write an op-ed piece about it, and then do a number of other things that clearly were not designed to protect her cover. 

MATTHEWS:  Joe—Joe, did you support—did you support the impeachment of President Clinton for perjury and obstruction of justice? 

DIGENOVA:  Absolutely.  I did.

MATTHEWS:  What was the underlying crime then? 

DIGENOVA:  Obstructing a trial—a civil...

(CROSSTALK)

MATTHEWS:  No, what was the underlying—what was the underlying crime?

(CROSSTALK)

MATTHEWS:  You‘re asking for—you—now, this guy is guilty of perjury and obstruction of justice.

But what—you‘re saying he doesn‘t have an underlying crime there.  But what was the underlying crime with Bill Clinton?  Monica Lewinsky, that was the underlying crime?

DIGENOVA:  No.  Actually, it was a civic proceeding...

MATTHEWS:  Right. 

DIGENOVA:  ... in which there was a case pending in a United States district court.

MATTHEWS:  Right. 

DIGENOVA:  And the—the—the president, apparently, according to the reason he—he gave up the practice of law for a period of time was because he did not tell the truth during a deposition. 

MATTHEWS:  Well, but neither did—neither did Scooter Libby.  So, they are guilty of the same charge. 

(CROSSTALK)

BEN-VENISTE:  Hang on for a second.  President Clinton did not obstruct anything in that investigation.

DIGENOVA:  Whoa.

(LAUGHTER)

BEN-VENISTE:  Those facts were all out there.  This was—this—remember, this was a civil case in which he was being questioned now in a deposition by Mr. Starr, who had the facts in advance.  It was a perjury trap.

Here, with respect to Mr. Libby, I haven‘t suggested that he knew that Valerie Plame was a covert agent, which everyone associated with this matter who has any knowledge of it has already acknowledged, but, rather, that it was casually done.  It was simply not that important to find out, as Judge Walton said in his sentencing, somebody who is entrusted with this information, and then, casually, as a matter of collateral damage, simply is willing to out an undercover operative of CIA. 

That is why CIA called for a criminal investigation right from the get-go of this.  Now, the point...

DIGENOVA:  The reason they called for an investigation was, they had to cover their fannies, because their tradecraft, in protecting her identity, was miserable.  In addition...

BEN-VENISTE:  It was supposed to protect it from the administration?

MATTHEWS:  OK. 

BEN-VENISTE:  Come on, Joe.

DIGENOVA:  No.  No, no, no. 

(CROSSTALK)

DIGENOVA:  You‘re supposed to protect it from...

(CROSSTALK)

MATTHEWS:  Gentleman, I agree with Joe diGenova.  The president is going to pardon his friend.  Anyway—maybe he should. 

Well, thank you very much, Richard Ben—because I think it was...

(CROSSTALK)

BEN-VENISTE:  Thank you. 

MATTHEWS:  I think he was operating under the instructions of his government throughout this thing. 

Anyway—I‘m not sure you will agree with me on that, Joe, but I think he was doing the president‘s business. 

(CROSSTALK)

MATTHEWS:  Anyway, Richard Ben-Veniste, Joe diGenova.

Up next:  Why is Hillary passing Rudy in the latest poll that just came out tonight?  And why is Thompson, who hasn‘t even entered the race, headed to the top already?  And why is President Bush bringing in a relief pitcher to run the White House politics for him?  That‘s Ed Gillespie.  Usually, he shows up here on HARDBALL.  Maybe he will again.

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Time now to debate the stories that everyone is talking about across the country.  Here to do it is a “Time‘s” Ana Marie Cox, who hosts the site‘s Swampland Blog, the “Weekly Standard‘s” Matt Continetti, and the “Washington Post‘s” Eugene Robinson. 

First up, New York Street fight.  Let‘s talk about this new poll here.  This is Rudy Giuliani now falling behind Hillary Clinton in the head-to- head.  He is down now.  He is down five points.  He was ahead five points.  What is going on, Ana Marie? 

ANA MARIE COX, TIME.COM:  Well, I mean, really there‘s a margin of error three points in that poll.  So it is not so much that he is falling behind, but they are definitely still in a very, very tight race. 

MATTHEWS:  Why is she doing well?  If you look at the numbers, she is going up, and he is going down, with about a five point switch for her going up and a five point switch for him going down.  What has happened since March to show that she has got Mo and he doesn‘t? 

COX:  I‘m not sure if it‘s what‘s happened with her, as it‘s with what‘s happened with Rudy.  I mean, he has had some decent performances in the debates, but definitely the American people have gotten to know him a little bit better.  And maybe they are not liking him quite as much as they thought they would. 

I mean, he had a very high bar to hit with the American people, who sort of fell in love with him or whatever during 9/11, or at least came to admire him.  And so to see him falter at all I think really hurts him. 

MATTHEWS:  Gene, I wonder whether Hillary isn‘t getting so much distance now from Obama that she is getting a lot more attention from the country as the front-runner of the Democrats.  That is helping her in the big match up for November next year? 

EUGENE ROBINSON, “THE WASHINGTON POST”:  I think that is helping her.  It think as more people focus on the race—you know, the old kind of inexorability argument for Hillary Clinton is not entirely spent, despite Obama‘s rise.  And I think people kind of get used to seeing her, get used to her being the leader.  She was presidential in the last debate.  I think she has done pretty well. 

MATTHEWS:  Matt?

MATTHEW CONTINETTI, “THE WEEKLY STANDARD”:  Chris, there‘s one poll that matters.  It happens on November 4th, 2008.  And the fact that, as Ana Marie said, this is within statistical differences—truth be told—

MATTHEWS:  So you don‘t like the numbers? 

CONTINETTI:  No, I don‘t like the numbers.

MATTHEWS:  That‘s why you‘re dumping on them.  If you liked them you would be saluting, come on.

CONTINETTI:  Giuliani may have lost some support among conservatives who have learned about his pro-choice position, which he is now very forthright about since that Houston speech.  Fundamentally though, look at what both candidates are doing now.  They are contrasting not the difference within their party, but the differences between them and the other party.  We‘re going to have a very polarized election. 

MATTHEWS:  Well, Matt, I‘m not one of Hillary‘s pom-pom girls, but I have to tell you something, she is doing well out there.  And if I were a Republican party organizer or an ideologue of the right, I would be worried that something is catching on here, Matt.  You are laughing because you‘re trying to downgrade these numbers because you don‘t like the looks of them. 

CONTINETTI:  I‘m not trying to downgrade the numbers, Chris.  I mean, any honest observer will tell you that the Republicans face a strong head wind going into next year.  That said, Giuliani is probably going to be the most competitive candidate going in against Hillary Clinton. 

MATTHEWS:  And he‘s losing to Hillary.

CONTINETTI:  At the moment, he is losing by five points.  I mean, that‘s pretty insignificant.

MATTHEWS:  The way we count votes, if he were to win the election by five percent, it would be called a landslide. 

CONTINETTI:  November 4th, 2008, Chris. 

MATTHEWS:  You are too young to act like Jack Germond.  You‘re acting  like one of these old guys; I don‘t believe these early numbers.  You people are all crazy.  Let me ask you about Fred Thompson.  If the Republicans party is so solid in who it likes as a leader, why does Fred Thompson go on Jay Leno last night and apparently continue his run, which has taken him right up to second place?  Ana Marie?

COX:  Well, right now he doesn‘t really have to run in any other way besides on television and through his blogging.  I think the Republicans are not happy with their field.  I mean, obviously all of the polling shows that.  All of the polling shows that they are deeply dissatisfied and that Fred Thompson has a shiny new persona for them.  He is shiny—

MATTHEWS:  Shiny?  He‘s Rip Van Winkle.  I mean, come on.  Where has he been?

COX:  I think that he is the shiny new thing to them, to registered voters.  They don‘t know much about him.  And I think it is really interesting, if you look at the polling, you will see that where his support seems to be coming from—

MATTHEWS:  Can I ask you a gender question, Ana Marie?

COX:  You may.

MATTHEWS:  Does he have sex appeal?  I‘m looking at this guy and I‘m trying to find out the new order of things, and what works for women and what doesn‘t.  Does this guy have some sort of thing going for him that I should notice? 

COX:  I can only speak for myself.  I do not find him terribly attractive.  Although, I do like the way he drinks his whiskey on “Law and Order.”

But I was going to say, actually—this is actually to the point—his support among voters is coming form men.  He is not doing incredibly very well among registered voters who are women.  I think that‘s really interesting.  The other real base of his support so far has been the religious right, who clearly don‘t know a whole lot about him, because he has said some things that they are not going to like once it gets out. 

MATTHEWS:  Gene, do you think there‘s a sex appeal for this guy, this sort of mature, older man, you know?  He looks sort of seasoned and in charge of himself.  What is this appeal?  Because I keep star quality.  You were throwing the word out, shining star, Ana Marie, before I checked you on it. 

Something is going on here when this is the new Robert Redford here. 

I mean I just want to know—or whatever—what‘s his name?  Matt Damon. 

Go ahead

ROBINSON:  Well, he has presence.  I‘ll give you that, Chris.  The rest of it, you and Ana Marie can decide, as to the sex appeal.  You know, the numbers say he is more of a guy‘s candidate.  He is doing well.  Maybe he is a man‘s man.  But, you know, it is interesting, what he said on Leno last night, which was essentially that he never really wanted to go after the presidency, but he kind of would like to have it. 

MATTHEWS:  Who wouldn‘t if it is offered to you?  How many people get it offered to them.   

(CROSS TALK)

MATTHEWS:  Can you smell the English leather on this guy, the Aqua Velva, the sort of mature man‘s shaving cream, or whatever, you know, after he shaved?  Do you smell that sort of—a little bit of cigar smoke?  You know, whatever.   

CONTINETTI:  Thompson‘s a smooth character.  He likes to smoke cigars.  There‘s no question about that.  People should ignore the “Tonight Show” interview.  They should go to Hoover.org, Chris, another interview Thompson gave yesterday, where he was asked, what was the most damaging judicial decision made in the past 30 years.  Thompson said Roe v. Wade.  There will be a clear choice for Republican voters between the anti-Roe Thompson and the relatively ambivalent, semi pro-Roe Giuliani. 

I think that may make the difference in the end.

MATTHEWS:  So, as long as you can pander without looking like you‘re pandering, you‘ve got it figured.  Right Matt?

CONTINETTI:  Well, I think he truly believes that.  The question is, how will Thompson stand up when he goes into these debates with the other candidates?  A big question, especially with Giuliani, will be what is your record?  What have you achieved? 

And one thing Giuliani is always talking about is what he achieved as mayor. 

MATTHEWS:  Have we seen Fred Thompson stand up for 90 minutes yet? 

(CROSS TALK)

MATTHEWS:  -- lazy boy chairs.  We‘re going to watch the next debate. 

We‘ll be right back.  I want to talk about Dan Rather and Katie Couric.  That‘s getting interesting.  We‘ll be right back.  Talk about debates.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Times.com Ana Marie Cox, “The Weekly Standard‘s” Matt Continetti, and “The Washington Post‘s” Eugene Robinson.  Next up, rather blunt criticism.  Well, CBS News anchor—The former CBS News anchor Dan Rather took a big shot at CBS News and all new programs on MSNBC‘s “Morning Joe.”  Let‘s listen up.

(BEGIN VIDEO CLIP) 

DAN RATHER, FORMER CBS NEWS ANCHOR:  I have nothing against Katie Couric at all.  She‘s a very nice person.  I have a lot of friends at CBS News.  However, it was clear at the time, and I think it‘s become even clearer, that the mistake was to try to bring “The Today Show” ethos to the “Evening News,” and to dumb it down, tart it up, in hopes of attracting a younger audience. 

(END VIDEO CLIP)

MATTHEWS:  Let‘s bring the HARDBALL ethos to the “Today Show” versus the “Evening News” ethos.  Gene Robinson, you‘re the veteran here with me.  Sir, is this a legitimate debate between the style of news presentation today and what it was when Dan started out in the business? 

ROBINSON:  Sure it is.  But I don‘t see why he‘s picking on Katie Couric.  I mean this is a continuum.  This is a process that‘s been going on since long before Katie Couric came to the network news.  Look at the number of bureaus that the networks have around the country and over seas.  Look at the number of stories that are on an evening news cast. 

MATTHEWS:  Look at all the viewers that are dead now, that used to be over seas for all our networks.

ROBINSON:  All that changed before Katie Couric set foot at CBS. 

MATTHEWS:  Let me try to tart up this debate a little bit.  Ana Marie Cox, do you think Dan was right in saying that news has been tarted up.  Is that a sexual innuendo about a woman anchor? 

COX:  Well, interesting segue to bring it to me on that—

MATTHEWS:  Well, I thought I would pick out the woman to do it.  Yes.

COX:  I think that Dan Rather‘s right and so is Gene, that this has been happening for a long time. 

MATTHEWS:  The tarting up process? 

COX:  The tarting up process.  But I also think that if they‘re

looking for younger viewers—you know, their current is sort 60 to dead -

I‘m not sure that Katie Couric is the person to do it.  Younger viewers would rather watch Stephen Colbert or Jon Stewart.  That would be a very smart thing—

MATTHEWS:  I would be careful, because you didn‘t just see the commercial we just ran. 

COX:  I did.

MATTHEWS:  We just ran a commercial for Oxygen.  So don‘t be making fun of people who are facing physical challenges.  Let me ask you all, is this going to be a debate we have when we‘re all gone?  Because I wonder whether the argument over entertainment versus news or analysis, or opinion, or the mix of all of those, is what we‘ve had from the beginning of news papering in this country, and pamphleteering.  Hasn‘t it always been a mix of things?  Matt Continetti?

CONTINETTI:  The debate shouldn‘t be about news versus entertainment, Chris, in this case.  The debate should be between politics and journalism.  I mean, Rather is one to talk.  CBS‘ news division‘s ratings started declining not with Katie Couric.  They declined precipitously when she took over.  They started declining when Dan Rather peddled forged documents as a legitimate news story in the November, 2004 election.   

MATTHEWS:  He paid a price for that. 

CONTINETTI:  He paid a huge price for it, and I think the whole network has.  And so, for me, it‘s kind of absurd that we should be listening to Rather, in this case, critique his former station. 

MATTHEWS:  He made the news on our network, so we‘re going to play it up big. 

Let me just say to something to everybody, while you pros are listening to me, I was up at my colleague reunion this weekend.  I just want to tell you something.  I want to talk to the people watching right now.  I am so heart felt about the people that watch this program, HARDBALL, every night.  I mean, every night. 

Some people watch it at 5:00.  Some watch it at 7:00 Eastern time.  And it‘s so wonderful that people believe in me, to watch me present the stories of the night and my analysis and my attitude.  It is very personal.  I know watching television is not a public fact.  It‘s a private thing. 

Gene, help me out here.  I‘m getting verklempt here.

ROBINSON:  You are. 

MATTHEWS:  But the fact is that when you choose to watch people—I mean I watched Johnny Carson for 30 years.  I watched Cronkite for all those years.  It is a personal connection.  And people have to trust you to watch you.  And I‘m so glad people trust me, because all I can do is my best to say what I think is the truth.  But I wonder about the finding of objective truth more and more. 

I wonder whether there is a fact out there.  I know there is.  Tokyo is the capital of Japan.  There are facts.  But so much of what we argue about, weapons of mass destruction, the threat from Iraq, are arguments.  They‘re not facts.  They‘re arguments. 

ROBINSON:  Yes, look, you could—if you wanted to get theoretical, you could say that this period in which we‘ve had this strict separation between fact and opinion is more the aberration than the rule.  But I think of it more in terms of voice, and point of view, and attitude, and things that we don‘t—you know, there are facts that we can agree on.  But we don‘t necessarily have to agree on, you know, how we look at them or how we talk about them. 

Let‘s face it, the audience, as Ana Marie said, that is not 60 or dead, is becoming attuned to taking in information a little different way. 

MATTHEWS:  Matt, I read your magazine every week, believe it or not.  I don‘t agree with a lot of the point of view.  I love the back of the book.  I read “The Weekly Standard.”  It‘s a point of view magazine.  It‘s strong.  It‘s neo-conservative and conservative as well.  It‘s a mix.  It‘s also a good magazine to find out what people are thinking. 

CONTINETTI:  Thank you.

MATTHEWS:  It‘s very hard for me to say it‘s not a useful organ. 

CONTINETTI:  Absolutely.  But we don‘t advertise to be an objective news source, Chris.  CBS News does.  but I want to return to something you said, and that is trust.  And I think people, when they watch television news, they want authority.  Even Johnny Carson had authority. 

MATTHEWS:  No, you knew he wasn‘t selling anything. 

CONTINETTI:  I‘m not sure Katie Couric has the same sense of authority when she‘s talking to the “Evening News” audience.  I think we can attribute the decline in ratings to that. 

MATTHEWS:  Do you think that‘s true Ana Marie?  Or is it just new person, younger voice, different background?

COX:  I actually agree with Matt on that totally.  I think that she doesn‘t have that kind of authority.  I also want to say that this idea about voice being important to the current viewer—and Eugene‘s right that it‘s true, this idea that we should be aiming for objective truth in journalism is a relatively new thing for us.  I think that what‘s important is that people—they can trust an unbiased—a biased report. 

MATTHEWS:  This country was built on biased reporting.  “Common Sense” by Thomas Paine built this country.  And it was a point of view.  Better independence than British rule.  There‘s a point of view. 

Anyway, thank you Ana Marie Cox; thank you Matt Continetti; thank you Eugene Robinson.  Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  Good night.

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

END   

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