updated 8/24/2007 10:58:42 AM ET 2007-08-24T14:58:42

Guests: Rajiv Chandrasekaran, Melanie Sloan, David Rivkin, Perry Bacon, Julie Mason, Eamon Javers

MIKE BARNICLE, GUEST HOST:  A new intel report says Iraq‘s government will become more precarious over the next six to twelve months.  Does that mean we stay or we leave?

Let‘s play HARDBALL.

Good evening, and welcome to HARDBALL.  I‘m Mike Barnicle, in for Chris Matthews.  Our big story tonight, Iraq.  The new National Intelligence Estimate says the violence is high, the political leaders are inept and the infrastructure is problematic.  And today Republican senator John Warner called on President Bush to begin withdrawing troops from Iraq.  Will Senator Warner turn the Republican tide in favor of troop withdrawal?

In our second story tonight: A plan afoot in California could skew the whole 2008 race.  It was Florida in 2000 and Ohio in 2004, but could California be the biggest fight of all for 2008?  Could California Republicans carve up the state‘s electoral vote so that it‘s not winner-take-all for the White House.  Is this anyway to elect a president?

Here‘s “Meet the Press” moderator Tim Russert‘s take.

(BEGIN VIDEO CLIP)

TIM RUSSERT, HOST, “MEET THE PRESS”:  The Democrats did not win the presidency in 2000 and 2004 because they couldn‘t win Ohio or Florida.  But they could win California.  If you suddenly suggest that the electoral votes of California will not be in the Democratic column but will be divided proportionately, you‘re basically suggesting that the game‘s—the rules of the game are going to shift and that California is no longer a solid Democratic state.

(END VIDEO CLIP)

BARNICLE:  In other political headlines, a top Giuliani adviser tells Fred Thompson to, Run or keep your mouth shut.

Also tonight, the White House declares some of its e-mail records are off limits in a civil lawsuit, even though their Web site says they aren‘t.  Are they breaking the law?  That‘s tonight‘s HARDBALL debate.

More on all of that later with our roundtable, but first, David Shuster has this report on Senator Warner‘s call for troop withdrawal and the political battle lines being drawn over the war.

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  Just 20 days before the Bush administration delivers their latest report on Iraq, today Virginia Republican senator John Warner publicly urged President Bush to send the Iraqi government a message.

SEN. JOHN WARNER ®, VIRGINIA:  I think no clearer form (ph) of that than if the president were to announce on the 15th that in consultation with our senior military commanders, he‘s decided to initiate the first step in a withdrawal of our forces.

SHUSTER:  Warner said the withdrawal could be as few as 5,000 troops, but the influential Republican said that following his latest trip to Iraq, he is deeply disappointed by the lack of political progress and by the feeling that Iraqi leaders do not feel a sense of urgency.

WARNER:  We simply cannot, as a nation, stand and put our troops at continuous risk of loss of life and limb without beginning to take some decisive action which will get everybody‘s attention.

SHUSTER:  Warner has huge influence over moderate Republicans and has been ratcheting up the pressure on the Bush administration for over a year.  Today, on top of Warner‘s statement, the White House took a separate hit on Iraq in a report prepared by 16 U.S. government intelligence agencies.  The National Intelligence Estimate, or NIE, concluded the level of overall level of violence remains high.  The report also said Iraq sectarian groups remain at war with each other, terrorist groups are still able to conduct highly visible attacks and Iraq‘s Maliki government over the next six to twelve months will become less effective than it already is.  It‘s a view that further undermines President Bush.

GEORGE WALKER BUSH, PRESIDENT OF THE UNITED STATES:  Prime Minister Maliki is a good guy, a good man, with a difficult job, and I support him.

SHUSTER:  As the arguments between the president and Congress intensify, two competing ad campaigns are now under way.  One group called Freedom Watch is pushing to keep the war going.

UNIDENTIFIED MALE:  I know what I lost.  I also know that if we pull out now, everything I‘ve given and sacrificed will mean nothing.

SHUSTER:  Injured veterans and military families appear in these spots.  The ad also features a scene from 9/11.  Iraq, however, had nothing to do with the terror attacks and no Iraqis were on board any of the aircraft.  The spokesman for the $15 million campaign backed by Bush donors and appointees, is former White House press secretary Ari Fleischer.  Last night on HARDBALL...

BARNICLE:  What‘s that soldier‘s name, Ari?

ARI FLEISCHER, FORMER WHITE HOUSE PRESS SECRETARY:  Mike, I don‘t have his name in front of me.

SHUSTER:  Fleischer has long been controversial because of pre-war statements he made about Iraq as presidential spokesman.

FLEISCHER:  There‘s no question that if force is used, it will achieve the objective of preserving the peace far faster than the current path that we‘re on.

The likelihood is much more like Afghanistan, where the people who live right now under a brutal dictator will view America as liberators, not conquerors.

SHUSTER:  On the other side, a TV campaign is under way from Votevets.org.  The group has long been critical of President Bush and now the group is targeting congressional Republicans.

UNIDENTIFIED MALE:  The equipment and the troops are stuck fighting George Bush‘s war in Iraq.  Congress has to help get the strategy right so we can fight the terrorists who are the real threat to America.  Senator Warner, protect America, not George Bush.

SHUSTER (on camera):  In talking today, however, about his latest trip to Iraq, Senator Warner spent most of his time focused on the Iraqi government.  He said Iraq‘s prime minister has let down our troops, but those troops will not get any relief from Senator Warner, who said the timetable for withdrawal is still up to President Bush, not Congress.

I‘m David Shuster for HARDBALL in Washington.

(END VIDEOTAPE)

BARNICLE:  Thanks, David.

Rajiv Chandrasekaran is the national editor of “The Washington Post” and author of “Imperial Life in the Emerald City,” which I would urge you to buy.  It‘s a terrific reporting job on what Baghdad is like, and it‘s available in paperback starting next week.

Rajiv, there seems to be something missing, at least to my eye, in the reporting of both the surge and the war in Iraq lately, and that would be the size and the scope of Baghdad.  I think many Americans sitting out there this evening have no idea of the size, the sprawl of this city, and the weather in this city today.  Could you just, before we begin talking about what happened today with the NIE and everything, give us a sense of what Baghdad is like?

RAJIV CHANDRASEKARAN, “WASHINGTON POST”:  Yes.  Think of Baghdad like Houston, Texas—large, sprawling.  You know, because the Iraqis for a long time have had really cheap gasoline, they have—they have built these big expressways.  The city goes on for miles and miles.  This is not a tiny place.  This is a city of five to six million people.  You know, you‘re talking, you know, a really, really good-sized city here, that to really patrol and secure, you need, you know, tens upon tens of thousands of well-functioning security forces, both foreign and Iraqi.

BARNICLE:  So we have the surge that‘s been going on largely within Baghdad for the past two or three months.  And there‘s one school of thought that the surge is working, and yet it seems to be, according to those people who think it‘s working, it‘s working in a city where the lights don‘t work.  What impact does that have on life, as well as the surge?

CHANDRASEKARAN:  Well, you know, it is and it isn‘t working.  I mean, what you have are certain neighborhoods where U.S. forces are now patrolling in greater numbers, where there is an improvement in security, where, you know, Iraqis feel more comfortable walking around.  Shops have reopened.  People are going about daily life in a way that they really haven‘t in the years between the fall of Saddam Hussein and the commencement of the surge.

But this, we have to keep in mind, is in some parts of Baghdad, not in all parts of the city.  And it‘s only in the capital city.  There are other parts of the country, most notably up toward the northeast, toward Bakuba and Diyala province, where things are, you know, by all accounts getting worse, not better.

BARNICLE:  According to your reportorial eye and your reportorial ear, is the Maliki government capable of pulling this country together politically within the next six to twelve months?

CHANDRASEKARAN:  You know, that is the $64,000 question here.  And by all accounts, they haven‘t really stepped up to the challenge.  I mean, what we‘re asking the Maliki government to do now, to move forward with national reconciliation, to pass a law aimed at bringing back former Ba‘athists into the government, to pass a law that is aimed at equitably sharing the country‘s oil revenue—these are things that the U.S.  government has been asking the Iraqi government to do now for a couple of years, and they haven‘t acted on it.

For us to think now that Maliki, with a little bit more pressure from Washington, with more strident rhetoric coming from here, would all of a sudden be able to act in a way that they haven‘t done—I think that‘s, quite frankly, you know, completely unreasonable to expect.

There‘s political gridlock there because you have rival factions, each of whom are jockeying for power.  And you essentially have a political fight that‘s taking place among Iraqi leaders inside the Green Zone.  From the safety of the green zone, mind you.  They‘re not living like ordinary Iraqis, they‘re living with the comfort of bodyguards and generators giving them 24 hours of power a day.  And they, for their respective reasons, don‘t want to sit around a table and really meaningfully compromise.

BARNICLE:  So you have, on the one hand, as you just articulated and we see it every day—you‘ve got this pressure from Washington, D.C., on the Maliki government, and the Maliki government is ensconced, isolated, really, behind the walls of the emerald city in Baghdad, and nothing seems to be going forward politically.

What happens in Iraq, despite all of the talk that you hear from Washington that we are not occupiers of that country, if somehow Maliki is forced out of office?  What happens internally in Iraq?

CHANDRASEKARAN:  Well, you know, if he‘s forced out, you could wind up in a situation where you are at a continued prolonged political stalemate.  It‘s hard to tell whether that‘s better or worse than the stalemate you have now.  But I mean, you think back to the last round of elections.  I mean, it took them five months to agree upon Maliki, and he was the compromise candidate.

There‘s no clear leader waiting in the wings to take over.  There‘s no sign that if Maliki were to go, that the political factions would come together in any more of a unified way.  The country is very, very deeply divided, and it‘s a division that transcends, you know, whoever sits in the prime minister‘s office.  I mean, it‘s easy to beat up on Maliki, but Maliki is a symptom of the country‘s problems, not necessarily the cause of it.

BARNICLE:  So when—we just have time for this one last question, about a minute.  The other day, when pushed, Maliki said that, you know, he‘d find friends elsewhere if the United States wouldn‘t stand behind him.  So isn‘t part of the problem that the friends that he was probably alluding to, Iran and Syria, aren‘t his friends and they‘re not our friends?

CHANDRASEKARAN:  Well, they‘re not our friends, and they‘re probably not really his friends, either.  I mean, both Iran and Syria wanted—you know, do—you know, have their own strategic interests in Iraq, and their interests don‘t necessarily comport with the Iraqis‘.  But you know, this is Maliki trying to sort of play a hardball back with the United States.  He realizes he‘s under pressure and he‘s trying to stand his ground.  But the problem is fundamentally that the Baghdad timetable, which involves, you know, sitting around and drinking lots of cups of tea and hoping that things are better tomorrow, is not the same as the Washington timetable.

BARNICLE:  Rajiv, Chandrasekaran, thanks very much for your optimistic picture.

(LAUGHTER)

CHANDRASEKARAN:  Good to talk to you, Mike.

BARNICLE:  Coming up:  Will California chop up its electoral vote? 

Could it be the biggest battleground of all for 2008?

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL.  There‘s a plan afoot in California that could turn the 2008 election on its head.  With 55 electoral votes, more than any other state, California is a gold mine for presidential candidates.  Right now, it‘s winner take all, all 55, but a plan to split those up could up-end the 2008 race.

Tim Russert explains why this is such a big deal on this morning‘s “Today” show.

(BEGIN VIDEO CLIP)

TIM RUSSERT, HOST, “MEET THE PRESS”:  The Democrats did not win the presidency in 2000 and 2004 because they couldn‘t win Ohio or Florida.  But they could win California.  If you suddenly suggest that the electoral votes of California will not be in the Democratic column but will be divided proportionately, you‘re basically suggesting that the games—the rules of the game are going to shift and that California is no longer a solid Democratic state.

MATT LAUER, CO-HOST, “TODAY”:  And let‘s take a specific example, OK?  In 2004, President Bush won majorities in 22 of the congressional districts in California but lost to John Kerry statewide 54 to 44 percent.  So under the current laws that were in effect back then, John Kerry won California and all of its 55 electoral votes.  If this shift were to take place, what would happen in 2008, if a similar dynamic existed?

RUSSERT:  Well, 33 electoral votes for Democrats, 22 for California...

LAUER:  Republican, you mean?

RUSSERT:  Republican—almost guaranteeing the election of a Republican.  Republicans are  saying this is clever.  Democrats are saying it‘s devious.  It‘s going to be before the voters of California in June of ‘08, and you‘re going to see an extraordinary pitched battle trying to defeat this amendment—this initiative by the Democrats.  Republicans love it.

LAUER:  So what you‘re saying is what would happen in California would impact the entire race nationwide?

RUSSERT:  Absolutely.  No doubt about it.  Matt, in North Carolina, the Democrats were thinking of trying to do the same thing, a state that traditionally goes Republican.  They have backed off.  They‘re trying to pressure Governor Arnold Schwarzenegger to come out against this, even though he‘s a Republican.

(END VIDEO CLIP)

BARNICLE:  Chuck Todd is NBC News‘s political director and the wannabe general manager of the Los Angeles Dodgers.

CHUCK TODD, NBC POLITICAL DIRECTOR:  There you go.

BARNICLE:  He joins us now from the Washington, D.C., bureau.  Chuck, is there any way to measure the mischief involved in this proposal?

TODD:  There‘s not.  I mean, and it absolutely is just that, it‘s mischief.  It can work on two fronts.  The first front is the Republicans do this because they actually think they can pass this thing in California, right, and buy themselves an extra 22 electoral votes.

Well, there‘s two ways that this would have fallout.  One is it would get a whole bunch of Democratic interest groups to realize in June of ‘08, rather than spending $50 million to beat up the Republican nominee nationally, they‘d have to devote all these resources to try to defeat this ballot initiative in June of ‘08.  The Republicans—it‘s a win-win for the Republicans.  They might get the ballot initiative passed, or if they don‘t, they make the Democrats waste $50 million to defeat it.

Or they could get Democrats to suddenly try to get in a bunch of states, like—Tim brought up North Carolina.  Well, there‘s about seven or eight other states, Mike, where Republicans—where George Bush carried the state and got all the electoral votes, but Democrats control the state government.  They control both the governor‘s mansion and state legislature.  So they could start carving this up, not just North Carolina, but West Virginia, a state Bush won handily, Louisiana, Arkansas.

So you know, it would just bleed—it‘s either going to lead to one of two things.  Either a whole bunch of money gets wasted in California to fight over these ballot issues and get them defeated, or it triggers states all over the country deciding to mess around with the process.

BARNICLE:  OK.  So in California, where does this stand now?  How many signatures does it take?  What‘s the requirement to get this on the ballot?

TODD:  Look, you know, California is the state that I feel like sometimes it invented the referenda, right?  They can get a ballot initiative on for anything.  Getting it on the ballot is not going to be that difficult.  These Republican guys are going to get it on the ballot.  And so you‘re going to have—it‘s probably going to be on there.

Now, already you have some Democratic interest groups that are trying to get two ballot initiatives that would be competitive to this electoral vote split.  It would make California‘s electoral votes, if this passes—this is a bunch of Democrats organizing it—it would make California‘s electoral votes go to whoever wins the popular vote, no matter what.  Well, of course, you know, we almost had this happen in 2000 and 2004, where you had the person who won the Electoral College...

BARNICLE:  Right.

TODD:  ... lose the popular vote.  So imagine in 2004, for instance, let‘s say John Kerry had won Ohio.  Let‘s say this Democratic ballot initiative, the Democratic version of this, passed in California that it goes to the popular vote.  Well, then, suddenly, George Bush would have gotten California‘s 55 electoral votes and John Kerry would have gotten the 20 in Ohio, and then still come up short for his 270.

So, it‘s all—all it is, Mike, is mischief.  It‘s about making Democrats either waste money in California or create all sorts of uneasiness about our democracy in all 50 states about how we elect a president. 

BARNICLE:  OK.  Speaking of John Kerry, and speaking of—of mischief

and no one cast a vote yet—but John Kerry‘s running mate in 2004, John Edwards, today, in Hanover, New Hampshire, up at Dartmouth College—well, take a listen to what he said today in a New Hampshire speech. 

(BEGIN VIDEO CLIP)

JOHN EDWARDS (D), PRESIDENTIAL CANDIDATE:  The American people deserve to know that their presidency is not for sale, the Lincoln Bedroom is not for rent. 

(END VIDEO CLIP)

BARNICLE:  What‘s up with that, do you figure? 

TODD:  Hello.

You know what‘s interesting about that, Mike?  It was, that line about the Lincoln Bedroom not for rent was not in the prepared text.  That means John Edwards went up there and said, you know—and my guess is, you probably—they probably debated about whether to put the line in the speech.  Well, when they released the prepared remarks, that line wasn‘t in there.  He ad-libbed.  He put it in. 

I think what it tells you is that John Edwards has—there is a sense of urgency right now in the John Edwards campaign.  He is in that first tier because he leads in Iowa, but he‘s struggling in a lot of these other early states. 

Obama has taken away this idea that—that, somehow, Edwards would be the anti-Hillary candidate.  Edwards today is making one—probably one last stand, frankly, but one more attempt to prove that he is the alternative to Hillary.  He‘s trying to almost ignore Obama and start taking more direct shots at the Clinton campaign, seeing if they can draw the Clinton campaign out, and possibly create a two-person race that shoves Obama aside. 

I think Edwards realizes the window is closing for him, and he had to

he had to retool and refire up. 

BARNICLE:  So, most of those windows, in Edwards‘ mind, are they out in Iowa? 

TODD:  Well, they are not Iowa.  You know, he did this in New Hampshire. 

BARNICLE:  Yes, I know.

TODD:  Right.  And I think the—he realized, you can‘t be a one-state candidate.  Dick Gephardt tried it in 2004, and it failed. 

(CROSSTALK)

TODD:  And it—I think that the Edwards folks realize they need to find a second front here.  New Hampshire, independents, they‘re grisly.  They don‘t mind a little back-and-forth.  They don‘t mind a little hardball politics.  Iowans don‘t like it so much, but New Hampshire folks do. 

And I think he‘s testing this message out and seeing if this hard-nosed, change, big idea, going after Clinton a little bit will work. 

BARNICLE:  Quickly, because we just have a few seconds left, Giuliani, Rudy Giuliani, the other side of the aisle, Mitt Romney, Fred Thompson whacking him around...

TODD:  Yes. 

BARNICLE:  ... on gun control, immigration.  Do you think that‘s having any impact at all? 

TODD:  Right now, no.  I mean, you have—Mitt Romney is having to defend his abortion stance again, because he apparently had—appeared to have another contradiction, talking about states‘ rights.

We will see.  I think Rudy—Rudy has got a couple of months.  If he survives this onslaught on guns and immigration, he‘s going to be in good shape.  But I think this next two months will tell us a lot. 

BARNICLE:  You know, the next two months will tell us a lot.  And I don‘t mean to put you on the spot, but do you think the Dodgers have any shot at the wild card?

(LAUGHTER)

TODD:  I don‘t—I don‘t want to talk about it.  We didn‘t—we didn‘t get that stick.  I just hope we‘re in the A-Rod—I just want us to be in the A-Rod sweepstakes.  I don‘t want that team from Anaheim to get him. 

BARNICLE:  Chuck Todd, thanks very much. 

TODD:  You got it. 

BARNICLE:  Up next:  Mitt Romney and Fred Thompson rip Rudy Giuliani‘s record.  Can Rudy take the heat?  That and more in our political headlines. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL. 

Here‘s the latest political news.

From YouTube to Yahoo!, the 2008 race is using the Internet like never before.  Now MySpace and MTV plan to give us instant-messaging presidential forums.  All of the major candidates have signed up. 

But, according to “The Washington Post,” Republicans might need to spend a little more time making friends on MySpace.  The top three Democrats have more than 370,000 MySpace friends.  The top four Republicans racked up just under 85,000. 

Next:  We all know our Congress likes to fight, but get a load of this.  Bolivian lawmakers went into an all-out rumble Wednesday.  They are fighting about judicial appointments with opponents, charging Bolivia‘s president with trying to stack the court.  That‘s not our Senate Judiciary Committee. 

Two years after Hurricane Katrina and just a year after getting reelected as New Orleans mayor, Ray Nagin is teasing a run for Louisiana governor.  The election is just a couple months away, and Nagin says that recovery money is not coming into his city fast enough.  If a run could help his city, he said he just might do it. 

And here‘s another potential governor.  Former California Governor, three-time presidential candidate and current California Attorney General Jerry Brown tells “The Sacramento Bee” he‘s thinking about a bid to succeed Governor Arnold Schwarzenegger in 2010.  Brown says, global warming is the biggest problem facing California. 

And, finally, ripping Rudy‘s record.  Mitt Romney and Fred Thompson are double-teaming Rudy Giuliani this week on immigration and guns.  But the Giuliani camp isn‘t keeping quiet.  Giuliani campaign co-chair Guy Molinari told “The New York post” that Thompson should—quote—“run or keep your mouth shut”—unquote. 

Up next:  The White House says the Freedom of Information act doesn‘t apply to the office that handles their e-mails, even though their Web site says it does.  Are they breaking the law? 

(COMMERCIAL BREAK)

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

An up-and-down day on Wall Street, amid continuing concerns here over this mortgage market, the Dow off a fraction, closing at 13235, S&P 500 slipping a point-and-a-half to 1462.5.  And the Nasdaq also fell, losing 11 points, closing the day at 2541. 

Struggling mortgage lender Countrywide Financial gets a cash infusion.  Bank of America is investing $2 billion in Countrywide.  Both stocks opened higher on the news, but the overall market went south today after Countrywide‘s CEO told CNBC he thinks a recession is likely. 

Better news on the housing market, rates for 30-year fixed-rate mortgages dropping to 6.52 percent.  That‘s the lowest we have seen since late May.

And jobs Web site Monster.com says names and contact information of about 1.3 job-seekers have been stolen.  Monster says it will contact people whose information was compromised—now back to HARDBALL.  

BARNICLE:  Welcome back to HARDBALL. 

The Bush administration is in another battle to keep its records confidential, this as the Justice Department is contending that the White House Office of Administration is not subject to the Freedom Of Information Act.  The department‘s argument is in response to a lawsuit trying to force the office to reveal what it knows about the disappearance of White House e-mails last month. 

Can the White House ignore legal requests for e-mail records?  That‘s the HARDBALL debate tonight. 

Melanie Sloan is executive director of Citizens for Responsibility and Ethics in Washington.  Her organization is the one that filed a lawsuit in May seeking Office of Administration records about the missing e-mails.  And attorney David Rivkin is a former official at the Department of Justice under President Bush 41. 

David, what is the White House up to here?  What are they trying to hide?  Why are they doing this? 

DAVID RIVKIN, FORMER ASSOCIATE WHITE HOUSE COUNSEL:  This is actually not even hardball.  This is easy ball.  They‘re not trying to hide anything. 

The simple matter of fact is the, Freedom Of Information of Act does not—repeat, does not—apply to an entity like Office of Administration within the executive office of the president. 

Incidentally, I served in the White House in two administrations, quite familiar with the structure.  This is an office that performs important, but essentially ministerial functions, the kind of things my law firms hire Pitney Bowes to perform.  They have no substantial independent authority.

Look, Congress, this is not even a confrontational or constitutional issues.  This is not resisting congressional subpoenas.  This is very simple.  Congress made a choice in FOIA to exempt entities within the executive office of a president, not all, but some, like this office. 

Look, we have two leading cases. 

BARNICLE:  OK.

RIVKIN:  One included the National Security Council.  There‘s a lot more stroke in case Scott Armstrong, where National Security Council was not held to be an agency.  Office of Economic Advisers, that has enormous power, was also held not to be an agency. 

The bottom line is, the people who are bringing those lawsuits are just interested in pushing the envelope and use the courtroom to change the existing law.  They should go to Congress.

(CROSSTALK)

BARNICLE:  OK.  OK.  OK. 

Melanie, I guess, after listening to David, Miers you should just get up and leave.  You have been pushing the envelope, he says.  What are you doing in court here? 

MELANIE SLOAN, EXECUTIVE DIRECTOR, CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON:  Well, I am feel pretty comfortable in court here. 

Even on the White House‘s own Web site, you can see that the Office of Administration is covered by the FOIA.  It is one of the six office the White House itself has claimed is an office subject to FOIA within the executive office of the president. 

They have answered FOIAs in the past at least 65 times.  And, in fact, in our case, they were in the midst of responding to a FOIA when, suddenly, on a dime, they turned around and said, oh, no, never mind; we‘re not an agency subject to the FOIA. 

BARNICLE:  What—what were you seeking?

SLOAN:  And that‘s what they‘re trying to hide.

BARNICLE:  Melanie, what were you seeking? 

SLOAN:  We were seeking not actual e-mail themselves, but we were seeking information about why the White House lost over five million e-mail, which the White House has admitted to, between 2003 and 2005. 

And the Office of Administration had given the White House a plan to recover those e-mail, and then the White House Counsel‘s Office had refused to do it.  We wanted the information about how those e-mail came to be lost...

BARNICLE:  OK.

SLOAN:  ... what the body of e-mail were lost, and what the plan was to recover them. 

BARNICLE:  OK.

David, I realize you don‘t work in the White House right now, but do you know anything about the five million missing e-mails?  Is Rose Mary Woods still on the payroll there?  We don‘t know.

RIVKIN:  Of course not. 

But let me say two things.  Melanie is absolutely right.  In the past, Office of Administration responded to FOIAs. 

In the case I mentioned, Scott Armstrong, which was actually brought by one of Melanie colleagues, who was sort of a dean of the National Security Archives, created it. 

The National Security Council also, in the past, responded to FOIA requests.  And the court said very clearly that past practice is not dispositive.  If you are not an agency within the meaning of FOIA, you don‘t become one because—as a matter of grace or by mistake.  You do those things.

But let‘s be clear.  Why are we always looking for some evidence of wrongful motivation?  This is a law that is designed to accomplish certain things.  Go to Congress.  Have them change the law.  Look, again, I want Melanie...

(CROSSTALK)

SLOAN:  Hey, if there‘s nothing to hide, they could just provide the information right off the bat. 

(CROSSTALK)

RIVKIN:  I don‘t understand the argument.  If...

(CROSSTALK)

BARNICLE:  Let Melanie respond, David.

RIVKIN:  Yes. 

(CROSSTALK)

BARNICLE:  Let Melanie respond.

SLOAN:  I think that the White House has decided they were responding, and then the Office of Administration was told to stop responding, not to respond.  They don‘t want to give us the information, not the e-mails themselves, which we‘re not trying to get, but just how it came to be that over five million e-mail were lost. 

Those are records that are supposed to be stored under the Presidential Records Act.  This is a pretty serious matter. 

(CROSSTALK)

BARNICLE:  Melanie, let me ask you something.  Why do you want to see these e-mails?  You got a lot of time on your hands? 

SLOAN:  We want to know why it is that the White House isn‘t conforming with the Presidential Records Act, which requires them to maintain all electronic records.  And, here, they failed to do it.

BARNICLE:  Aren‘t there bigger issues—aren‘t there bigger issues in this life, in this country of ours? 

(CROSSTALK)

SLOAN:  There are certainly very serious issues facing this country all the time.  But the law is the law.  And the White House is not above the law.  They should be abiding by the Presidential Records Act and saving all of these e-mail for future generations. 

(CROSSTALK)

SLOAN:  The question is, why does the White House not want future generations to understand what they were up to?  What are they hiding? 

(CROSSTALK)

RIVKIN:  That is—that is nonsense, with all due respect.  The real issue is different.

Organizations like Melanie‘s—and they are bipartisan, to be fair.  In every administration, Republican or Democrat, they come in and ask for every document under the sun. 

To answer the question, Mike, they want to know.  Look, the fundamental problem is this.  There is no sense of balance here.  They are like PETA.  If you asked PETA, you would never do any animal testing.  If you ask pharmaceutical industry, you would do animal testing all the time.

Somebody has to balance things.  In this instance, it‘s Congress. 

Congress came up with a law, but does not include such entities. 

BARNICLE:  OK.

RIVKIN:  I don‘t understand.  If National Security Council is not an agency, and they have a lot of power in policy-making, how is it that Office of Administration, that basically runs computers, is an agency?  Melanie knows well that...

BARNICLE:  David...

SLOAN:  Up until Tuesday, the White House was saying that they were such an agency subject to the FOIA.

(CROSSTALK)

SLOAN:  This is totally new argument...

(CROSSTALK)

RIVKIN:  That is not a dispositive argument. 

BARNICLE:  OK.

RIVKIN:  In the case I mentioned, the court said it doesn‘t matter what they have done in the past. 

(CROSSTALK)

BARNICLE:  Melanie, Melanie Sloan, David Rivkin, we have to cut it off there.  I‘m sorry. 

But, actually, I thought, when you were talking about FOIA, you were talking about the hallway in the White House.  That‘s how much I know about this issue. 

Up next, the HARDBALL roundtable, and the big news of the day.  Will California carve up their electoral votes?  Will President Bush and General Petraeus give us a report on Iraq as grim as the intel report out today?  And will the White House be able to keep Congress out of its e-mail? 

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

BARNICLE:  Welcome back to HARDBALL.  Time to bring in our HARDBALL round table, the “Washington Post‘s” Perry Bacon, “Business Week‘s” Eamon Javers, and the “Houston Chronicle‘s” Julie Mason, who is down at the Bush ranch in Crawford, Texas, having lost the lottery. 

First up, Iraq‘s sad forecast; the new National Intelligence Estimate says the level of overall violence in Iraq remains high, Iraqi political leaders can not govern effectively, and fundamental structural problems are blocking progress in Iraq‘s economy and living conditions.  Just about 20 days before General Petraeus talks to Congress, do we have our answer about how things are going? 

Julie, you‘re down there in Crawford, Texas.  Was there any reaction at all today from the White House, from the Texas White House, about the National Intelligence Estimate, pretty bleak assessment, and Senator Warner speaking on the Senate floor—speaking in Washington later today? 

JULIE MASON, “THE HOUSTON CHRONICLE”:  Well, Mike, they did talk about the NIE at the briefing today.  Gordon Johndroe, the National Security Council spokesman, came out and said, much like the White House has said many times before, yes, some of it is bad.  But we‘re making progress.  It‘s going to be a long slog.  I just have to wonder, are people getting sick of hearing that? 

BARNICLE:  Perry, what do you think?  Are people getting sick of hearing that?  Are you getting tired of writing about it?  Are you getting tired of being asked about it? 

PERRY BACON, “THE WASHINGTON POST”:  I‘ll take a pass on that and just say that I think that I suspect that the senators, both the Democratic and Republican, are becoming frustrated about the situation.  This may change how the Petraeus report is viewed next month when he comes up.  It may change the dynamic with this report being out there, a lot of senators being very critical on the president‘s performance on Iraq. 

BARNICLE:  Eamon, what impact does Senator Warner‘s statement today have on the Republicans, both in the Senate and the House.  I mean, these are substantial guys, respected guys.  What impact does that have? 

EAMON JAVERS, “BUSINESS WEEK”:  If there is a contemporary equivalent of the “CBS Evening News” anchor Walter Cronkite talking about Vietnam being unwinnable, John Warner might be as close as we‘re going to get in this analogy to that.  He is a very respected figure.  He‘s a former chairman of the Senate Armed Services Committee, the top Republican there now. 

He is coming out and saying, we ought to begin to draw down the forces in Iraq.  That is obviously not at all what the White House is saying.  Interestingly, Warner spent a big piece of this morning at the White House talking to White House staffers.  I would kill to be a fly on the wall to get a sense of what that conversation was about.  Whether they were able to talk him out of anything, whether they were able to talk him into moderating his speech this afternoon in any way. 

But that is a big blow.  This NIE is very important, but to some extent the politics of this are taking place in a kind of fact-free atmosphere.  It almost doesn‘t matter what the new facts are that are delivered here, because the supporters of the war are going to continue to support it and the opponents are going to continue to be opposed to it, no matter what the facts on the table are. 

BARNICLE:  Next topic, California dreaming.  There is a Republican push in California to scrap the winner take all rule for the state‘s electoral votes, and instead, award them by Congressional district.  Is it a big deal?  You bet.  Here‘s the skinny, Republicans want some of those electoral votes, the largest batch in the country, 55 from California. 

Forget Ohio and Florida.  Republicans can find the votes they need right there in California.  But can they do it?  Julie, let‘s go back down to Crawford, Texas.  Any sense—this seems to be just mischief.  We heard Tim Russert earlier on the “Today Show”—I mean, come on, the idea of splitting up states‘ electoral votes. 

MASON:  Right, but if the Republicans could pull it of, it would be great for them.  Instead of getting nothing out of California, which they would probably get this year, they would come away with, you know, at least 19 votes maybe.  That‘s something at least.  I agree with you.  It seems like mischief.  I don‘t know if they can pull it off.

BARNICLE:  Perry, what is your sense of that?  Governor Schwarzenegger out there, he is sort of Republican.  He is not the Republican, you know—he is much too moderate to stand on the national stage for the Republicans.  But what is your sense of what will happen here? 

BACON:  I don‘t suspect that it will happen.  But if it did, it would have a dramatic effect.  If they win 19 electoral votes, that‘s many more than most states have.  That would have a dramatic effect.  Democrats are worried about it—some Democrats in North Carolina, a much smaller state, of course, talking about the doing the same thing there.  North Carolina usually goes to the Republicans, but they have a Democratic legislators.  They are talking about that too now. 

BARNICLE:  Eamon, is it just me, or is part of the deal around this proposed ballot initiative is that it is in California and you could get a ballot initiative in California to require that blueberries be taken out of blueberry muffins.  You can get enough signatures for almost anything. 

JAVERS:  California has a long history of these ballot initiatives.  More importantly for the Republicans, the ballot initiative that start in California tend to have a ripple effect across the country.  This is something to be taken very, very seriously.  It might not have much chance of passing, and it might be just be chaff that the Republicans are throwing out there, but it is brilliant chaff, because it makes the Democrats play defense in a year in which, in California, nobody thought the Democrats would be playing defense on much of anything. 

BARNICLE:  We are going to be right back with the round table.  You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

BARNICLE:  We‘re back with the “Washington Post‘s” Perry Bacon, “Business Week‘s” Eamon Javers, and the “Houston Chronicle‘s” Julie Mason, who‘s in Crawford, Texas, at the height of the vacation season. 

Next up, 2008 street cred; White House hopefuls are pounding away at their opponent‘s records.  Mitt Romney and Fred Thompson are taking Rudy Giuliani to task over immigration and guns.  John Edwards, who used to work for a hedge fund, is crying out against corporate Democrats.  And today he has this gem for Hillary Clinton. 

(BEGIN VIDEO CLIP)

JOHN EDWARDS (D), PRESIDENTIAL CANDIDATE:  The American people deserve to know that their presidency is not for sale, the Lincoln Bedroom is not for rent. 

(END VIDEO CLIP)

BARNICLE:  Perry, help or hurt the Edwards campaign?  What do you think?  You heard that sound bite.  That is tough stuff. 

BACON:  It is tough stuff.  And the Democratic base that he is trying to appeal to right now was very supportive of President Clinton for sure, and has been reluctant to hear that kind of critique of them.  But I think what we‘re seeing in a sign that this is go time now.  The candidates are all very engaging with each other.  Senator Obama today was up in New Hampshire and sort of said, unprompted, voters, I know you want to know how different I am from Senator Clinton, and here are the five things I will do differently than she will. 

The candidates are really sort directly engaging each other, and I think they are ready for Labor Day.  After Labor Day, people will be paying attention.  They‘re getting ready for that now. 

BARNICLE:  Eamon, it is my instinct that the attacks by Governor Romney and former Senator Thompson on Rudy Giuliani—I‘ve seen Giuliani a couple of times in performances before crowds, conservative crowds—having very little impact, the punching away that they are doing on him.  What‘s your sense?

JAVERS:  They have to it though.  Whether it has impact or not, they really have to differentiate themselves from the guy, because Giuliani is doing incredible numbers in the polls for a guy who doesn‘t really agree with the Republican base on many key issues.  So, they have to start calling attention to the fact that he is off the reservation on some of the issues that the voters in the Republican primary are going to care most about. 

This issue of sanctuary cities is exactly the kind of thing that they need to be flagging, to start nipping at the heels of Rudy Giuliani.  And I think that they believe that Republican voters will not like a New York City candidate, who they can position as pro-illegal immigrant.  Whether, that is what his position is or not, that is how they are going to try to frame him.  Giuliani is going to have to be on defense here.  They are going to go after him, and they‘re going to try to nip away at him.  And they‘re going to try to prove that he can‘t be a competitive candidate in the Republican primary. 

BARNICLE:  Hey Julie, before I get a response to this issue and these questions that we‘ve been talking about, let me ask you about being down there in Crawford, Texas.  I know, but, you know, this is the next to the last summer that George W. Bush is going to be in the White House.  It is the next to the last summer that he is going to be down there as president of the United States.  Do you get any sense that there is a bit of nostalgia seeping into the Texas White House or to the Bush presidency?   

MASON:  What?  Do you mean that we are already sort of re-evaluating him, because it‘s like the final days? 

BARNICLE:  Yes. 

MASON:  Yes, definitely, for sure.  Plus, he‘s not really doing much on this vacation.  We haven‘t really seen much of him.  He hasn‘t been around.  Yes, I would say he is not around for us to talk to much. 

BARNICLE:  You know, Perry, that gets us to the Texas White House, the White House at 1600 Pennsylvania Avenue, the National Intelligence Estimate released today, which is directly at odds with what President Bush has been saying for the past couple of weeks about the Maliki government in Iraq.  What do you think is going on in the White House, in the Bush presidency, as it approaches Petraeus‘ speech, with these contradictory elements of Iraq right there in front of the president? 

BACON:  I think they are hearing from Senator Warner and others about the problems in Iraq and they‘re trying to figure out what to do next.  I think this has become—like Julie is saying, to some extent a lot of parts of the Bush White House—Karl Rove left. A lot of thing they are doing are sort of finished. 

They are not going to change Social Security.  They‘re not going to reform things they wanted to.  But I think the Iraq war is the one thing he is sort of grappling with.  It will be interesting to see what he concludes and what he says over the next few days. 

BARNICLE:  Eamon, how big of a hole does Karl Rove leave in this White House, as he does leave at the end of this month? 

JAVERS:  It is huge.  It is cavernous.  There are a whole cadre of people inside the White House who sort of viewed themselves as Rove junior and Rove‘s accolades.  Those people will have to step up and fill the void.  But Rove was really the visionary there on the political front.  The question for this White House is, what is the point of the Bush presidency from now until January of 2009?  They have to come up with some driving reason for Bush to be president other than holding the line in Iraq. 

If they don‘t, they‘re really going to suffer lame duck syndrome.  They have to come up with fresh ideas and fill up that empty of domestic policy initiatives for the next year.  Or else, they are really going to be on their heals and playing defense.  And that is not where a White House wants to be.  And it is never where Karl Rove would have wanted them to be.

BARNICLE:  Julie, have there been any Rove siting in Crawford this summer? 

MASON:  Yes, oh yes.  He has been very much in evidence down here.  He has gone back to Washington.  He went back on Sunday for the talk shows.  But he‘s been around.  He‘s been having little off the record dinners with people and stuff like that.  You know, I agree with what Eamon said.  But I would also add that when he goes, he takes a lot of the heat with him, especially with Congress.  So there could be a lot less controversy, a lot less sort of anxiety with him gone. 

BARNICLE:  Perry, off of what Eamon said, do you get any sense around the White House, around Washington, around the politics of that city that is so fueled by politics, that there is some effort being made to, over the next 15 months, come up with something, a booklet, anything, a pamphlet, to hold up and say we‘re going with his now? 

Anything? 

JAVERS:  The White House has actually gotten into a fight—they are also going to play defense—play a little offense in the defense I guess.  They‘re getting in a fight about health care reform right now that will come back in September, where the Democrats are trying to expand the children‘s health care program more than the president argues they should.  They are playing defense and playing it pretty aggressively.  He‘s threatening to veto this health care expansion.  It will be interesting to see how that goes.  It‘s a sign that he will be awake and alive and active until the end.   

BARNICLE:  Eamon, Perry just mentioned the word fight.  Do you think there is any sense in this administration of how sick and tired the country is of all of these fights? 

JAVERS:  Yes, but you have to pick fights in politics.  That is sort of the life blood of the industry.  One of the things that the—

BARNICLE:  You‘ve got to get something done too.

JAVERS:  Right, except Democrats are controlling Capital Hill right now.  For example, they are going to be doing all of the big government spending bills this fall.  One of the things the president might do is veto one of them and say the Democrats are loading them up with too much pork barrel spending.  That is something he hasn‘t been interested in doing very much lately.  But now that the Democrats are in control, he could pick a fight with them on an issue where it‘s on good political terrain for him. 

BARNICLE:  OK, Eamon Javers, Perry Bacon, Julie Mason, thank you very much.  Join us again tomorrow night at 5:00 and 7:00 for more HARDBALL.  Our guests include cycling legend and cancer advocate Lance Armstrong. 

Time for “TUCKER.”

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

END   

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