updated 7/23/2007 11:31:47 AM ET 2007-07-23T15:31:47

Guests: Rocky Anderson, Mark Green, David Rivkin, Lt. Gen. Don Kerrick, Naomi Wolf, Melanie Morgan, Terry Jeffrey, Hilary Rosen, Susannah Meadows

MIKE BARNICLE, GUEST HOST:  It‘s war.  Hillary Clinton attacks the Pentagon for saying her comments on Iraq effectively help the enemy.

Let‘s play HARDBALL.

Good evening.  I‘m Mike Barnicle, in for Chris Matthews.  Welcome to

HARDBALL.

Who says women can‘t serve in combat?  Democratic frontrunner Hillary Clinton is going to war with the Pentagon for saying her criticism of the war reinforces enemy propaganda that the United States will abandon its allies in Iraq.  Today Senator Clinton wrote a letter to defense secretary Robert Gates, calling on him to explain those remarks.

This afternoon, in a direct response to that letter, Senator Clinton announced she was teaming up with Senator John Kerry on legislation which would require the Pentagon to report and brief the Congress on contingency planning for withdrawal from Iraq.

Earlier this week, Elizabeth Edwards said her husband, John, would be better on women‘s issues than Senator Clinton and insinuated that because Senator Clinton worked in a man‘s world, she sometimes had to behave like a man.  Well, Hillary might be responding to this comment, too, because C-Span caught her showing a little cleavage on Wednesday.

So is Hillary strong enough for a man but made for a woman?  Remember that commercial?  More on that in a moment.

And White House press secretary Tony Snow announced President Bush will undergo a routine colonoscopy Saturday, tomorrow.  Because the president will be given anesthesia for the procedure, he will transfer power to Vice President Cheney for several hours.  Makes you wonder what the vice president would do as president.  Maybe give Scooter Libby a full pardon?  Invade Iran?  Who knows?  It‘s Friday.  We‘re only kidding.  Don‘t worry.  Relax.

Plus If you think all Mormons are conservative Republicans, think again.  Later, meet the mayor of Salt Lake City, an anti-war Democrat who thinks President Bush should be impeached.

President Bush took a shot at anti-war Democrats in Congress today, accusing them of playing politics with the war.

(BEGIN VIDEO CLIP)

GEORGE WALKER BUSH, PRESIDENT OF THE UNITED STATES:  It is time to rise above partisanship, stand behind our troops in the field, and give them everything they need to succeed.

(END VIDEO CLIP)

BARNICLE:  And Senator Robert Byrd is at the top of our “Vide08” hot list tonight with his speech about football player Michael Vick‘s alleged vicious hobby of dog fights.

(BEGIN VIDEO CLIP)

SEN. ROBERT BYRD (D), WEST VIRGINIA:  The training of these poor creatures to turn themselves into fighting machines is simply barbaric.  Madam President, I am confident that the hottest places in hell are reserved for the souls of sick and brutal people who hold God‘s creatures in such brutal and cruel contempt!

(END VIDEO CLIP)

BARNICLE:  But we begin tonight with Hillary, Hillary, Hillary.  Lt.  Gen. Donald Kerrick is a former deputy national security adviser under President Clinton.  He previously served as the assistant to the chairman of the Joint Chiefs of Staff.  He‘s supporting Senator Clinton‘s bid for the presidency and is a surrogate speaker for the campaign.

General, you‘re familiar with the letter written to Senator Clinton from Undersecretary Edelman.  What‘s your reaction?

LT. GEN. DON KERRICK, U.S. ARMY (RET), CLINTON SURROGATE:  Well, I found it very disappointing and discouraging.  Senator Clinton was doing her job as a member of the Senate Armed Services Committee.  And I think everyone agrees and knows that sooner or later, we‘re going to withdraw our forces or redeploy our forces from Iraq, and we need to do it smarter and better than we did going in.

So in May, she made a very reasonable request to the secretary and just asked them simply, Have you done any contingency planning, should we withdraw our forces from Iraq?  And what she got back, I thought, was a letter with poor tenor and tone, and quite frankly, disrespectful to a very respected member of the committee.  And so I was disappointed and discouraged.

BARNICLE:  Most of the letter is boilerplate stuff.  It‘s pretty pedestrian stuff, with the exception of that one sentence.  If we could get that sentence up on the screen, I‘ll read it to you.  This is what Defense Department undersecretary Eric Edelman wrote to Senator Clinton.  Quote, “Premature and public discussion of the withdrawal of U.S. forces from Iraq reinforces enemy propaganda that the United States will abandon its allies in Iraq, much as we are perceived to have done in Vietnam, Lebanon and Somalia.”

So my question to you, General, is, does Bob Gates see this letter before it goes to Senator Clinton?  Does anyone see this letter?  I mean, this purely political sentence that Undersecretary Edelman has in there, who—who—is it his?  Is it the Pentagon‘s?  Is it Gates‘s?  Is it the administration‘s?

KERRICK:  Well, the letter said that he was responding on the secretary‘s behalf, so I would assume and hope that Secretary Gates hasn‘t seen it.  If he‘s seen it, then I‘m—it‘s disappointing that he would allow that to go out.

Listen, military contingency planning and operations are a very sensitive subject within the Pentagon, and no one appreciates that more than I, and I would never want to do anything that would jeopardize the safety of forces.  But I think—based upon the planing that we saw that got us into Iraq, I think it was certainly a prudent question.  The American people would expect and would like to know and have some assurance that we‘ve done some degree of contingency planning for the time, when it comes, that we‘re going to withdraw our forces from Iraq.  And we‘d like to be assured that we‘re—we know what we‘re doing and we have the resources to do it and that we can do it safely.

BARNICLE:  You know, we have 130,000, 140,000 troops in Iraq right now.  The logistics of a withdrawal, a phased withdrawal, whatever kind of withdrawal, conservatively speaking, how many months are we talking about?

KERRICK:  Listen, this is a very difficult operation.  I think if we were to be able to do it under ideal conditions, and that we are assuming that we‘re going to take everything out that we took in with us, I mean, you‘re talking at least a month per combat unit, possibly up to two years to orderly and peacefully get everything together and withdraw in an organized fashion.

That‘s assuming there‘s no resistance.  If there‘s resistance, it‘s a whole different ball game.  And so I think it could be done in a classified session behind closed doors.  I think some assurances to our elected representatives of Congress and the Senate that we‘ve done some thinking about this, and we understand the various contingencies and we‘ve got some plans on the drawing board that we can put into place that would allow us to do this under the various contingencies that we might face.

BARNICLE:  You know, you served in the first Gulf war, General, and today the president of the United States once again sort of slapped around Democrats in the Senate and the House in their debates in Capitol Hill here about a planned date for withdrawal of troops.  And yet anecdotally, I‘ve come across evidence from parents, families of members of the various branches of the service serving in Iraq now, who in, you know, the first couple of years in this war went to Wal-Mart to get equipment for their sons and daughters serving in Iraq.  We had a couple of years there where they didn‘t have enough, you know, up-armored Humvees.

And yet the president of the United States today still said, you know, what politicians on Capitol Hill have to do is to support the troops.  What‘s your reaction when you hear a statement like that?

KERRICK:  Listen, I‘m a great supporter of the troops, and the military members and their families are the ones who are making the vast majority of sacrifices for our country now in the conduct of this war.  I think that we could have done a much better job on planning and provided them with much more of the equipment they need.  And I have to tell you that Senator Clinton has been out front on this and is speaking very forcefully on taking care our forces, and that‘s why she‘s doing this.

This is a very reasonable request.  Let‘s just take a look and see if we‘re going to do a better job of planning so that we take better care of our soldiers, sailors, airmen and marines when the time comes to withdraw.  We‘re not talking about right now, but when that time comes, are we ready? 

Has the planning been done?

And I think the notion that this might embolden our enemies just doesn‘t make sense.  Everybody knows we do contingency planning on all things, from withdrawing to reinforcing.  So this is just a straightforward request.

BARNICLE:  Let me ask you about military culture before we let you go.  Do you think the military, the American military, is ready for a woman as commander-in-chief?  Will they accept a woman as commander-in-chief?

KERRICK:  Oh, absolutely.  The military respects the chain of command.  They‘re looking for leadership.  They‘re looking for a leader who understands the military, who will give them a mission that they can accomplish, who will provide the resources, and more importantly, will rally the nation behind them when they deploy them.

After all, the military will win or lose battles for you.  It will take the nation and a president to win the war and the peace.  And we haven‘t done that in this particular campaign, and I‘m confident that Senator Clinton will have the support of the military, should she become president, which I hope she will..

BARNICLE:  General Kerrick, thanks very much for joining us.

Melanie Morgan is a radio talk show host, and Naomi Wolf a Democratic consultant, former adviser to Vice President Gore and the author of “The End of America.”

Naomi, let‘s start with you.  Continuing with Hillary Clinton, “the Washington Post” this morning, a front page piece in the style section about Mrs. Clinton showing cleavage on the Senate floor.  You once encouraged Al Gore to wear, what, earth tones, to soften his image as...

NAOMI WOLF, AUTHOR, “THE END OF AMERICA”:  Mike—Mike, let me just stop you right there.

BARNICLE:  OK.

WOLF:  You‘ve basically not done your homework.  No offense.  First of all, I‘m not a Democratic consultant, I‘m a writer.  Second of all, I was advising Gore 2000 on the kinds of issues, women‘s issues, that I‘ve been talking about for 15 years—things like flex time, family leave, as well as getting out the youth vote.  So you‘ve just been—you know, the Republican National Committee came up with a bunch of urban legends, and I‘m afraid they pulled the wool over your eyes, so...

BARNICLE:  Well, no Republican National Committee member pulled the wool over anybody‘s eyes.  I mean, I can clearly recall you appearing on various talk shows, you know, when Al Gore was running for president and talking about this specific item.  But that‘s not what we‘re talking about.

(CROSSTALK)

BARNICLE:  What‘s your reaction, if any, you know, to Senator Clinton supposedly, I guess, on C-Span showing cleavage?  I mean, as ludicrous as that is when we‘re in the middle of a war, what‘s your reaction to that, if you have one?

WOLF:  Well, I guess we‘re very much on the same page that—you know, the previous speaker made the point that our young men and women are dying in an ill-conceived war, and Mrs. Clinton spoke up on their behalf, as she should, doing her job as a representative of the people, and she got slammed with the old canard, which has a very dark history in our country, of calling people who are asking hard questions traitors.  And so I‘m on the same page with you that, you know, directing attention to, you know, is she showing cleavage, isn‘t she, is a complete kind of waste of time, given the dire straits that our democracy is in right now.

BARNICLE:  Melanie, let me ask you, what do you think the odds are that the Clinton campaign leaked this letter from Undersecretary Edelman to make her look as if—Senator Clinton look as if she‘s more anti-war than she actually might be?

MELANIE MORGAN, RADIO TALK SHOW HOST:  I think it‘s absolutely—you could probably take that to the bank.  You know, that‘s probably exactly what the strategy was.  And look, you know, I find the whole thing amusing.  I‘m shocked to find that I‘m agreeing with all of the guests and the moderator, yourself, Mike, because this clearly is such a non-story.

But you know, if you want to get into the guts of the story, or the cleavage of the story, I think that it really is something that Hillary Clinton is using to advance her political agenda and the whole discussion about whether a woman can be the commander-in-chief or not.

But let me just give her some recommendations.  She should wear bipartisan pearls.  We used to call it “Republican pearls,” but since we‘re all reaching out across the aisle—she should always wear that, and shouldn‘t wear her cleavage so low.  But stiletto heels—now, that‘s an entirely different thing.

BARNICLE:  Oh!

MORGAN:  She probably should have been wearing stiletto heels underneath her pants suit.

BARNICLE:  Naomi, you know, this is—you know, you‘ve got Hillary Clinton in the headlines today and yesterday over the letter from the Defense Department from Undersecretary Edelman, but before that, you had Mrs. Edwards, Senator Edwards‘s wife, you know, inferring—implying, actually, that, you know, her husband would be better on woman‘s issues than Hillary Clinton.  What‘s going on with Hillary Clinton?  Is she in—you know, no matter what she seems to do, she can‘t win here.

WOLF:  Well, I have to say again I respectfully totally disagree with you.  What I see is that she‘s got a 40 percent approval rating, as of this morning‘s “New York Times,” which is the strongest of her career.  I see that people are warming up to her, coming around to her.  And what I do see is that the, you know, media elites continue to pick on her no matter what she wears, no matter what she says.  But I think the American people are waking up to the fact that this war is disastrously prosecuted.  They‘re waking up to the fact that this administration uses very nasty, dark tactics, like smearing critics and dissenters.

And Melanie, I‘ve got to—I‘d like to confront you.  You know, you‘ve done this, too.  You attacked Bill Keller when he published the swift banking (ph) articles, and you also, you know, accused him essentially of treason...

MORGAN:  Yes, Naomi, I did.  It was right here on HARDBALL, as a matter of fact, when I said that anybody who leaks or publishes classified data in a time of war in a highly successful program such as the swift bank (ph), they should be tried for treason.  If they were found guilty of treason, I would have no problem with them being executed.  That‘s my exact quote.

BARNICLE:  Who—what was this?  Who‘s...

(CROSSTALK)

BARNICLE:  Who were you going to execute?

(CROSSTALK)

MORGAN:  ... said right here on HARDBALL, and I still believe that.  And I believe that Senator Hillary Clinton is engaging in a very dangerous and very, very unfortunate choice of words here now.  She has creeped constantly leftward, and it‘s hurting our military and our families.  And what she‘s driving towards is a premature evacuation of the battlefield, leaving Iraq in disarray and the American troops as losers.

WOLF:  Melanie, if I could get...

MORGAN:  That is wrong!  That‘s plain wrong.

WOLF:  Melanie, if I can get a word edgewise?  The American people really have to know, and I think—no—well, a lot of disrespect, actually, Melanie.  You‘re playing a very dangerous game because when in American history leaders start to say that critical speech is treason or that critical speech is disloyal or unpatriotic, I mean, that‘s what they did in the McCarthy era.  That‘s...

MORGAN:  It is unpatriotic.

WOLF:  ... what they did in World War I...

(CROSSTALK)

BARNICLE:  We have real men and women who are in a blistering sandbox in Iraq right now, facing 130-degree temperatures, and their lives and limbs are being shot off.

WOLF:  Exactly.  Which is why...

MORGAN:  And for you and anybody else to say that it is patriotic to backstab their mission is just flat wrong.

WOLF:  It is patriotic to ask...

MORGAN:  And there‘s a lot of disrespect intended there to you, too.

WOLF:  OK.  So Melanie, constructively, what I want to remind you is that Thomas Jefferson and the Founders made it very, very difficult to call anyone a traitor because they understood how charges of treason were swept around and that they themselves were—could have been accused of treason for prosecuting the revolutionary war.  And so they made it very difficult because they understood that in times of war, anyone who criticized the prosecution of the war could be called a traitor and that that was dangerous for democracy.  And what I‘m saying is that the game that you and the White House is playing, by saying that critics of the war...

MORGAN:  Don‘t lump me together with the White House!  I have nothing to do with the White House.

WOLF:  OK, then you...

MORGAN:  I don‘t have anything to with the White House.

WOLF:  Fine.  I think that it is very dangerous and un-American to engage in this very dark history, to resurrect this very dark history of smearing people who are asking hard questions, as they should.

MORGAN:  Oh, that‘s interesting because Senator Clinton is one of the very finest operators of the smear machine, she and her husband, Bill, during all the impeachment hearings and the women, the 15 women who made allegations against him, they were the ones who were smeared.  So please don‘t turn that on me.

BARNICLE:  OK...

WOLF:  I think—I think I‘m bringing up a very substantive and important point...

BARNICLE:  Melanie...

WOLF:  ... and it‘s germane to what happened to Mrs. Clinton today, which is in America, the people need their representatives to ask hard questions...

BARNICLE:  OK...

WOLF:  ... and this administration should be ashamed of themselves for saying that that‘s un-American.

BARNICLE:  Naomi, we have to take a break.  We‘re going to be back with Melanie and Naomi Wolf and treason and executions and everything.  And homework.

And this Monday, the return of “HARDBALL Plaza,” and who better to rock that plaza than filmmaker Michael Moore.  And then on Tuesday, actor Sam Waterston.  If you‘re in Washington, now‘s your chance to come to the plaza and ask your questions.

And the HARDBALL campaign ad challenge is on.  Make your own campaign ad for a presidential candidate, and we‘ll play them on HARDBALL.  Here‘s an ad from Bonnie Bucqueroux of Mason, Michigan.

(BEGIN VIDEO CLIP)

MITT ROMNEY ®, MASSACHUSETTS:  (INAUDIBLE) protecting a woman‘s right to choose, and I‘ve been very clear on that.  I will preserve and protect a woman‘s right to choose.  (INAUDIBLE) and dedicated to honoring my word in that regard.  I will not change any...

UNIDENTIFIED MALE:  (SINGING) Isn‘t it rich, isn‘t it (INAUDIBLE), losing my timing this way in my career, but where are the clowns, send in the clowns.  Well, maybe next year.

(END VIDEO CLIP)

BARNICLE:  Oh, you can‘t make this stuff up!  Keep those ads coming. 

Our all-star panel of judges will pick the best ones.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL.

And we‘re with radio talk show host Melanie Morgan and Democratic activist Naomi Wolf, author of “The End of America.”

Melanie, clear this up for me.  I didn‘t quite get in that last segment, who were you calling to be executed?  You were talking about executing someone or some people or some group of people.

MORGAN:  Chris Matthews—yes.  Chris Matthews, on this very program, about a year or so ago, asked me about what I thought of—should be the penalty for whoever leaked the valuable Swift database program to “The New York Times,” and I said I wasn‘t aware of what the—the treason charge would carry.  And it turns out it carries the death penalty.

So, I said, yes, I agree if he were—if Bill Keller of “The New York Times” were to be tried of treason, I would have no problem whatsoever with him facing the death penalty. 

BARNICLE:  You‘re kidding, right?

MORGAN:  And, apparently, 62 percent of the American public feels the same way, when they were asked the same question.

WOLF:  I have got to jump in, Mike.

You know, what you should know is that this is how dictators talk.  I mean, in Stalin‘s show trials, the—the third Moscow show trial, the editor of “Izvestia” was actually charged with treason in a show trial, found guilty, and executed.  And, in America, we do not execute people for their opinions.  And that‘s the way the founders set it up.

And, honestly, Melanie, you should go read the Constitution. 

MORGAN:  It‘s not an opinion when you publish top-secret information in your newspaper.  That is endangering the lives of men and women on the battlefield in a time of war.

And, Naomi, you should know that. 

WOLF:  I—I certainly do know that.

BARNICLE:  Let...

WOLF:  And I want you to really think long and hard about what kind of America you want to see, where people are afraid to speak and afraid to—to in—you know, call—call governments to account because they‘re afraid that there will be calls for the death penalty. 

(CROSSTALK)

BARNICLE:  Let me...

MORGAN:  And I don‘t want to be lectured by you, Naomi, because we have men and women who are right now serving in battle, and you should be appreciative and grateful and do everything that you can to support that.

I do that at Move America Forward, which has over a million members, the largest pro-troop organization in the country.  And I would hope that you might make a donation or a contribution... 

(CROSSTALK)

WOLF:  And let me invite you, Melanie, to make a donation or a contribution to the American Freedom Campaign or the American Freedom Agenda, which is starting a pro-democracy movement in this country, so we can restore the Constitution and the rule of law, which is what those men and women are fighting for in the desert. 

BARNICLE:  Naomi Wolf, Melanie Morgan, thanks, both, very much. 

Up next: Salt Lake City Mayor Rocky Anderson.  He‘s a Democratic leader in heavily Republican Utah, and he wants to impeach President Bush and end the Iraq war. 

And, this Sunday, on “Meet the Press,” the first interview with the new director of national intelligence, Michael McConnell—Tim Russert this Sunday.

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL. 

Utah may be the reddest of the red states, but the mayor of its largest city, he might surprise you.  He‘s calling for the impeachment of President Bush, and he‘s not sure America is ready for its first Mormon president, at least not when it might be Mitt Romney. 

Mayor Rocky Anderson is the mayor of Salt Lake City, Utah.  He joins us now.

Mayor Anderson, thanks for joining us.

Let‘s skip over the impeachment of President Bush, because it‘s not going to happen, and get to Mitt Romney.

(LAUGHTER)

BARNICLE:  How about that?

You tell me, why do you think there are so many questions and so many lingering suspicions out there about a Mormon for president?  Why is this happening? 

ROCKY ANDERSON (D), MAYOR OF SALT LAKE CITY, UTAH:  Well, I don‘t think—I don‘t think it‘s about a Mormon for president, necessarily, although I know a lot of people have questions about the Mormon religion. 

But I think almost all religions are fundamentally headed in the same direction, and that is the concern for the poor, peace, the value of peacemaking, the value of human rights.  And that‘s where I think the extreme right wing of that Republican Party is so wrong. 

And that‘s why I think Mitt Romney has been so wrong in not just being who he really is, and caving into his handlers, who obviously have convinced him to basically flip-flop on all of these sorts of issues, and not standing up for what his religious values really ought to be, if they aren‘t.  But—and I think they are, because I know Mitt Romney.  I know his wife.  And I know at least how they used to value human rights and these—these more progressive values.

BARNICLE:  Well, how long have you—how long have you know the Romneys?  I mean, I know them.  I mean, they‘re nice people.  They‘re good people.  How long have you known them, personally and politically? 

ANDERSON:  Well, we worked very closely leading up to the 2002 Winter Olympic Games.  We have known each other since early 2000, in fact, before I was sworn into office in January of 2000.  We worked very closely together. 

I know Ann Romney was a major player in bringing the emphasis on human rights to the 2002 Winter Olympic Games.  I had discussions with Mitt Romney before he ran for governor.  I know he believed that Roe vs. Wade provided the best solution for issues of choice in this country, that we needed to get away from the divisiveness between the extreme right and left in this country; we needed to find ways to bring people together.

And I—you know, all this emphasis on religion, I really wonder, when are people really going to go back to fundamental religious roots, and talk about the value of not only making peace after we engage in war, but whether we can morally engage in a war of aggression, like this administration has done, and, then, in the execution of it, engaging in the worst kinds of officially sanctioned human rights abuses in the history of our nation. 

BARNICLE:  But...

(CROSSTALK)

ANDERSON:  Those are the kinds of religious values we ought to be discussing. 

BARNICLE:  But, you know, Mayor, a lot of people watching this show and listening to you right now, you know, they might think, now, wait a minute.  Mayor Anderson says, on the one hand, he wants to bring people together, and he thinks that‘s an important priority for this country.  Most people would agree with that. 

And, yet, on the other hand, you‘re calling for the impeachment of the president of the United States, something that is clearly not going to happen.  Why would you do that? 

ANDERSON:  Well, I do that because I think, even if the House of Representatives is too timid and not respectful enough of our Constitution, and what the founders had in mind, and why they included the impeachment clause in the Constitution, that we can at least come together in a nonpartisan way and say that kidnapping, torturing people, these are not American values, that the warrantless wiretapping of American citizens is not an American value, that engaging in the war of aggression, the invasion and occupation of a nation that posed absolutely no security risk, and being deceived into that war, that those aren‘t American values, and they‘re certainly not our moral or religious values in this nation. 

BARNICLE:  You know, getting back to religious values and Governor Romney‘s campaign, do—do you believe that there are a percentage of Americans who think Mormonism is a cult? 

ANDERSON:  Well, they use that word, but I don‘t think it‘s very helpful to the discussion.

And I think that, if you that if looked at the fundamental beliefs—and I was raised a Mormon—I was raised to—to think a great about those who are in need and the opportunities we have to serve.

But I also, in reading the Scriptures, learned a great deal about our social responsibilities, and not dividing people over issues like abortion or gay rights, that we ought to be more concerned with lending a helping hand, being more compassionate, more loving toward our brothers and sisters.  And...

BARNICLE:  What—what did you think of the exchange that just took place this week between Governor Romney and Senator Obama over sex education in public schools? 

ANDERSON:  Well, I thought it was pretty absurd, especially—this is another instance, I think, of—of Governor Romney, Mitt Romney, completely flip-flopping, because he, of course, sought out the support of Planed Parenthood and those who believe in the goals of Planned Parenthood. 

I think that—that age-appropriate sex education is absolutely vital, and not only in protecting our youngest children, but in equipping our young people in this nation with good, solid information, with the truth, so that, instead of the growing incidence of STDs, HIV, AIDS, all the rest, that we can start treating our young people with respect by providing them that good information and education. 

BARNICLE:  Have you got a candidate yet for president? 

ANDERSON:  I do, Bill Richardson. 

I think he‘s the best qualified.  He‘s a man who not only served in Congress and now serves as governor and has done a great job in New Mexico, but was U.S. ambassador to the United Nations.  He believes in diplomacy.  He was also secretary of energy under President Clinton.  And he knows the value of moving toward alternative energy sources and reducing the emission of greenhouse gases.

BARNICLE:  Salt Lake City Mayor Rocky Anderson, thanks very much. 

ANDERSON:  Good to be with you.

BARNICLE:  Up next, tonight‘s HARDBALL debate:  Has President Bush taken executive privilege too far? 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MIKE HUCKMAN, CNBC CORRESPONDENT:  I‘m Mike Huckman with your CNBC “Market Wrap.” 

And what a difference a day makes.  After closing above 14000 for the first time yesterday, the Dow Jones industrial average fell 149 points today.  The S&P 500 lost 19.  And the Nasdaq dropped 32 points.  For the week, the Dow was down 56, the S&P 50 down 18, and the Nasdaq off 19. 

Among today‘s biggest losers, Google.  Its shares fell more than 5 percent after the search engine missed the mark on earnings.  Google also failed to give guidance for the rest of this year. 

Shares of Caterpillar also weighed on the Dow today.  The construction equipment giant reported a 21 percent drop in quarterly earnings. 

Investors also dealt with volatility that accompanied that expiration of four types of options contracts, an occurrence that is known as quadruple witching Friday.

And oil fell 35 cents in New York, closing at $75.57 a barrel.

That‘s it from CNBC, America‘s business channel—now back to

HARDBALL. 

BARNICLE:  Welcome back to HARDBALL. 

Senator Chuck Schumer calls it a constitutional crisis.  The Bush administration has decided to exert even more presidential authority in the ongoing U.S. attorney scandal, saying that Congress will never be able to bring contempt charges against White House officials. 

Has President Bush taken executive privilege too far?  And will Americans sit back while an unpopular president tries to expand the powers of his office?

That‘s our HARDBALL debate tonight.

Mark Green is the president of Air America and a public interest lawyer.  And David Rivkin was a former Justice official under President Reagan. 

Mark, let me ask you.  Reading the papers, it seems to me—I‘m not a lawyer, and I don‘t even play one on TV, but it seems to me that the president of the United States just asserted that, no matter what you say, no matter what you do, while you‘re working for the president of the United States, he, as president, has the ability to say, that guy, that woman doesn‘t have to testify before Congress, because I invoke executive privilege. 

Am I correct? 

MARK GREEN, PRESIDENT, AIR AMERICA RADIO:  It‘s good you‘re not a lawyer, because you‘re right.  George W. Nixon is picking up where Richard Nixon left off. 

Look, the context is important.  The same people who apologized for torture, who said warrantless wiretapping was OK, which said that Dick Cheney is not part of the executive branch, now claim an absolute executive privilege, which, of course, is not in the Constitution, is not in statutory law.  It‘s court-made law. 

Now, presidents have to be free to converse with staff without any fishing expedition going after them, except if there‘s evidence of wrongdoing or illegal conduct.  That was in the Nixon case. 

And, finally, in two cases in the Clinton era, if a lawful investigative body in the Congress needs information it can‘t get anywhere else, then a person paid by taxpayers should come before Congress in a system of checks and balances.

This government are radical reactionaries who have a monarchical concept.  George Bush is closer to King George than George Washington when it comes to the rule of law. 

BARNICLE:  David?

DAVID RIVKIN, FORMER ASSOCIATE WHITE HOUSE COUNSEL:  Mark cannot—cannot be more wrong. 

Let me make a couple of points.  First of all, Congress is not stymied here.  The way those issues are supposed to be resolved is, Congress asks for documents, issues a subpoena.  The executive branch, after due deliberation, have the president decide that producing particular documents would impede his ability, institutional ability, to get unfettered advice. 

His is not the last say.  Congress‘ is not the last say.  Congress goes to district court and seeks to enforce subpoena.  At the end of the day, if the judiciary agrees with Congress, the subpoena is enforced and the contempt is issued by the court if there‘s disobedience. 

BARNICLE:  How long does it take to get something through the courts?

RIVKIN:  It takes a number of months, but that‘s the way things are supposed to work.  What‘s utterly inappropriate here is for Congress to take the position that they have a final say on this matter and issue a contempt citation against an individual executive branch official whose only malfeasance is that he or she is following the president‘s edict here, the president‘s word. 

That is the only thing that‘s happened here.  There‘s nothing unprecedented about it.  It‘s happened in the past.  And with all due respect to Mark, if you do not give a president the ability to protect internal executive branch deliberations, which by the way Congress and the judiciary do, you‘re not going to have a functioning executive branch. 

GREEN:  What David leaves out—what he fundamentally leaves is out is I agree.  Congress has to go and the executive has to go to court to decide it.  The problem here is that Bush, in effect, is pardoning himself.  He announced that his U.S. attorney, a Republican appointee of President Bush, for the District of Columbia, who has to prosecute a contempt of Congress citation, won‘t do it. 

You know, almost no power of the president is unlimited.  We all thought that pardon and commutation were unlimited in the recent debate.  Not true. 

(CROSS TALK) 

GREEN:  One last sentence, a president can‘t pardon himself after an impeachment.  That is in the constitution.  He is exonerating himself by not allowing his appointee to prosecute contempt of Congress. 

RIVKIN:  Mark, that has nothing to do with pardons.  We have a 1984

Office of Legal Counsel opinion that makes it very clear that you‘re not

going to have a situation where Congress presumptively, criminally condemns

GREEN:  Who wrote that? 

RIVKIN:  It was written by the head Office of Legal Counsel. 

GREEN:  Under President Reagan?  It‘s not law. 

(CROSS TALK)

RIVKIN:  The way those issues are resolved is Congress issues a subpoena; Congress goes to court to enforce it; there‘s no implication that either branch is right or wrong.  A neutral arbiter, an article free judge, resolves it and one branch prevails.  What Congress seeks to do is short circuits this process and condemn an individual executive branch official, which is frankly unprecedented and extremely regrettable. 

BARNICLE:  Mark, we‘re running out of time.  But let me ask you, what do you think the odds are that the next president, no matter who it is --- no matter who it is, Democrat or Republican, will try to hold on to this power that the Bush administration has accrued to the presidency? 

GREEN:  This is radical.  Bruce Fine (ph), who was with President Reagan, disagrees with my opponent here.  The Congressional Research Service disagrees.  This is not a left to right issue.  I assume if the next president is a Democrat, when they take the oath of office to faithfully execute the laws, they‘ll assume it means what it says. 

President Bush thought execute the laws, and he took it literally.  This is a lawless administration, from Geneva Convention to warrantless wire tapping.  So we‘re having a nice debate.  But the context is they don‘t believe in the rule of law, and he‘s trying to exonerate himself by not prosecuting a contempt citation. 

BARNICLE:  Go ahead, quickly. 

RIVKIN:  Totally wrong.  There‘s nothing peculiar to this administration.  This is protection.  (INAUDIBLE)  What you are talking about is making the president a ward of Congress that no president, Republican or Democrat, in the history of this republic can ever accept. 

BARNICLE:  Mark Green and a very snapilly dressed David Rivkin, we thank you both.  Up next, our HARDBALL panel on all of the week‘s big news, including all of the fights finding Hillary Clinton these days.  This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL.  HARDBALL correspondent David Shuster has new information tonight about Hillary Clinton‘s fight with the Pentagon.  David? 

DAVID SHUSTER, HARDBALL CORRESPONDENT:  Well, Mike, it‘s long been a question over the last two days whether or not this was simply a battle between Hillary Clinton and the undersecretary of defense, Eric Edelman.  We have now gotten confirmation that, in fact, this is actually a bigger battle and that a spokesperson for Robert Gates, the secretary of defense, says that secretary of defense was almost certainly aware and had read Edelman‘s letter to Mrs. Clinton before it was delivered. 

Again, the letter was one in which it suggested that Hillary Clinton and others who publicly discussed the withdrawal of U.S. forces essentially aided the enemy.  Mrs. Clinton called that the dangerous and ridiculous, and there‘s been this sort of back and forth.  The question again was: was this just a battle between an undersecretary of defense and Mrs. Clinton or the secretary of defense. 

And again, now we have some word from the Pentagon that, in fact, the secretary of defense signed off on this letter to Mrs. Clinton before it was issued. 

The other thing, Mike, is that Hillary Clinton had sent a letter asking Secretary of Defense Gates if, in fact, he subscribed to the argument, and she has not gotten a response to that.  But late today we got a quote from Secretary of Defense Gates.  He said, I had not seen Senator Clinton‘s reply to Ambassador Edelman‘s letter until today.  I am looking into the issues she raised and will respond to them early next week.

Mike? 

BARNICLE:  David Shuster, thanks very much. 

Let‘s continue to talk about Hillary versus the Pentagon with our panel.  “Newsweek‘s” Susannah Meadows has a story this week on how Hillary Clinton‘s opponents say she can be beaten, even though none of them ever did it.  Hillary Rosen is a HARDBALL political analyst who‘s supporting Hillary Clinton‘s presidential bid.  And Terry Jeffrey is editor at large of “Human Events.”

So let me start with you, Hilary.  What do you figure, Bob Gates and the Pentagon, they‘re secretly endorsing Hillary Clinton?  This has been a huge plus for her, has it not? 

HILARY ROSEN, DEMOCRATIC STRATEGIST:  You‘ve got to feel a little bad for Barack Obama and John Edwards that the Pentagon isn‘t picking a fight with them.  I find it ironic.  Just two weeks ago, Senator Lugar, the Republican chairman of the Foreign Relations Committee, and John Warner, the chairman of the Armed Services Committee, went to the floor.  They had an amendment to the DOD authorization bill saying that the Pentagon ought to come up with a plan for withdrawals of troops. 

We heard General Keric (ph) say earlier it actually takes a while to come up with a real troop withdrawal.  So whenever the president decides to do it, they‘re going to need some good plan to do it.  All Senator Clinton did was say to the Pentagon, we‘d like to know what it is.  And if you want to tell us secretly, that‘s OK. 

She didn‘t make a big public stink out of this.  She said if you want to brief us members of the Armed Services Committee in private, that will be all right.  And what did they do?  We know the answer to the question.  They don‘t have a pan.  Because if they had a plan, they would say something. 

BARNICLE:  Terry, this gives her real street cred on the left. 

TERRY JEFFREY, “HUMAN EVENTS”:  I hate to say it, but this was a very stupid move by the Bush State Department—Defense Department, excuse me.  I don‘t think Hillary Clinton did anything wrong.  I agree with Hilary.  Congress not only has oversight over the Department of Defense, the Department of Defense works for Congress.  Article One, Section Eight of the Constitution gives Congress the power to declare war.  Congress can undeclare war.  Congress can authorize a limited war.  Congress can authorize war under any terms it wants to. 

They can also authorize the end of a war.  And clearly, clearly someone who‘s on the Senate Armed Services Committee like Hillary has oversight over whether or not the Defense Department is making appropriate contingency plans for any kind of withdrawal of U.S. troops from Iraq.  So what she did was legitimate.  And what the Defense Department did was stupidly play into her hands and giver her the ability to politicize this issue.   

BARNICLE:  Susannah, your “Newsweek” piece—the political past is littered with the bodies of people who have underestimated Hillary Clinton.  Do you think this is another case of it perhaps? 

SUSANNAH MEADOWS, “NEWSWEEK”:  Well, absolutely.  I think that this issue—this most recent issue is all good for her.  I mean the people on the left are not happy with her vote on Iraq, and so they‘re waiting for an apology.  They‘re never going to get it because she needs to look strong on national security.  And so she‘s got to come up with a way to be critical of how the war is going, and this helps her—this helps her on that front. 

As you were saying, it gives her great street cred on the left. 

BARNICLE:  I can see Bob Gates over there.  He‘s got that Clinton bumper sticker on the back of his humvee, or whatever.  We‘ll be right back with the panel.  Don‘t forget HARDBALL Plaza on Monday.  It‘s Michael Moore.  On Tuesday actor Sam Waterston.  You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL.  Still with us, Susannah Meadows of “Newsweek Magazine,” Hilary Rosen and Terry Jeffrey.  Next up, Rudy Giuliani versus George Bush.  In an interview with “USA Today,” Rudy Giuliani says Iraq has hurt our efforts to fight terrorism elsewhere in places like Pakistan and Afghanistan.  By saying that, Giuliani put some distance between himself and President Bush. 

Here‘s how the paper put it, quote, “while he wasn‘t explicitly critical of President Bush, Giuliani outlined a more aggressive stance and a different emphasis than the administration has pursued in the region that spawned the terror network.” 

Will this work for Rudy Giuliani?  Susannah, one of the things that the former mayor of New York City mentioned is that we have to start multi-tasking this war on terror.  Is Rudy so identified with September 11th that he‘s just struggling to put some distance between himself and the war or trying to carve out a new identity for himself, a larger identity? 

MEADOWS:  I think he‘s putting all his eggs in this basket of national security.  I actually think it‘s a risk strategy for him.  I think that those of us in New York remember that—we all remember that in ‘93 the World Trade Center was bombed, and so Rudy Giuliani was in a position to really be aware that the World Trade Center was a terrorist target, and so I just think that he‘s—by putting all of his emphasis, his whole campaign on this issue, he‘s going to be vulnerable to questions, as the campaign goes on, about why weren‘t there more precautions?  Why wasn‘t there more of an awareness? 

BARNICLE:  Terry, one of the things that the mayor does not do in this statement about this issue is he doesn‘t use the word Iraq.

JEFFREY:  Yes, it‘s very interesting.  I think Rudy is trying to be more hawkish than Bush.  And this is just one of many examples of it.  He asked in that interview basically the question if President Musharraf of Pakistan isn‘t helping us track down al Qaeda within his own country, what good is President Musharraf to us? 

It‘s a good question, but it has a very good answer, which I think President Bush is critically aware of.  The greatest security nightmare the United States could have in this age is an Islamist regime armed with nuclear weapons.  That‘s why everybody is worried about what‘s going on in Iran right now. 

Pakistan is armed with nuclear weapons.  President Musharraf took over in a military coup.  They do not have a democratic government there.  Were we to pursue al Qaeda in Pakistan in such a way as to destabilize or cause the overthrow of Musharraf, what we might end up with is the worst possible security nightmare we could imagine, an Islamist regime armed with nuclear weapons.  That‘s the question that Rudy Giuliani doesn‘t answer in this interview. 

ROSEN:  But he does do something else by questioning the Musharraf strategy, which is that he has consistently said that he‘s with President Bush on Iraq.  He has said that from the beginning of his campaign.  I think that what he‘s been doing over these last two weeks is looking at John McCain‘s campaign and saying this might not be so good to stay so close to President Bush.  I better create a little distance. 

If he keeps on that strategy, he‘s going to—

BARNICLE:  There are people who take the bus to work every day, reading the tabloids, reading “Newsweek,” whatever.  They‘re sitting there.  They‘re thinking Osama bin Laden is still alive in Pakistan or in Afghanistan, right on the border there.  What‘s going on?  How come we don‘t have him? 

Susannah, what do you think of that, Rudy injecting himself into this thing?  What happens to him if nothing happens to Osama?   

MEADOWS:  That‘s the thing.  We just saw this National Intelligence Estimate come out, saying—the implication of the report was, well, we‘re not safer since 9/11.  And certainly people have been asking that question along this way; you know, has Iraq distracted us from getting Osama bin Laden. 

BARNICLE:  Terry, quickly.

JEFFREY:  Mike, I think there is a tremendous irony here.  Rudy Giuliani has been pitched to a lot of my conservative friends as the most viable candidate because he‘s the best on security.  If you go back and look at the New Hampshire debate, he was asked knowing what you know now would you still invade Iraq.  He said yes.  He does not have a rational foreign policy and I think over the long run, it will not withstand scrutiny. 

BARNICLE:  Quickly, Hilary?

ROSEN:  I think his only hope is to create the fear and then suggest he‘s the only one to solve it. 

MEADOWS:  Which he does every day. 

JEFFREY:  He will not get the Republican nomination. 

BARNICLE:  Susannah Meadows, Hilary Rosen, Terry Jeffrey, thanks very much.  Join Chris Matthews next week for the return of HARDBALL Plaza.  Michael Moore on Monday, Sam Waterston on Tuesday.  Have a terrific weekend.

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

END   

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