updated 5/1/2009 2:37:25 PM ET 2009-05-01T18:37:25

Guest: Tom DeLay, Christopher Shays, Todd Harris, Steve McMahon, Jonathan Turley, Ron Brownstein, Jonathan Allen, Sharon Epperson

CHRIS MATTHEWS, HOST:  Republicans in rout.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews in Washington.  Leading off tonight:

Elephants to the life boats?  With the man David Broder called “Specter the defector” crouching in a lifeboat, the question is who or what is sinking the Titanic?  “The Politico” says moderates are blaming conservatives.  Conservative are blaming moderates.  Senator Lindsey Graham is blaming party chairman Michael Steele, and Karl Rove is blaming Specter himself, about whom David Broder wrote today, “The one consistency in the history of Arlen Specter has been his willingness to do whatever will best protect and advance the career of Arlen Specter.”  But without him, the GOP is now down to 40 senators, with more in trouble next year.

We‘ll talk to former U.S. congressman Chris Shays, who got beaten last year, and former House Republican leader Tom DeLay, two Republicans who may well point fingers at each other.

So where does a party go that is increasingly seen as Southern, religious, and intolerant of different points of view?  Where does it go from here?  We‘ll ask our HARDBALL strategists how the GOP should try to right itself, also how the Democrats can try to exploit its misery.

And did you hear what Condoleezza Rice said when she went absolutely Nixonian when she got challenged on torture?  Here‘s what she said at Stanford when talking about the Bush administration and waterboarding.

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, FORMER SECRETARY OF STATE:  The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against Torture.

(END VIDEO CLIP)

MATTHEWS:  And so what Dr. Rice is saying there, when you see the whole of it, is that if something was authorized by the president, it‘s OK.  That‘s about as close as it gets to this sugar plum.

(BEGIN VIDEO CLIP)

RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES:  When the president does it, that means that it is not illegal.

(END VIDEO CLIP)

MATTHEWS:  Wow.  Much more on the politics of torture with Jonathan Turley and Pat Buchanan both coming up here.

And while on the subject of “What were they thinking?” here‘s Vice President Joe Biden talking to Matt Lauer today on the “Today” show.

(BEGIN VIDEO CLIP)

JOSEPH BIDEN, VICE PRESIDENT OF THE UNITED STATES:  I would tell members of my family, and I have, I wouldn‘t go anywhere in confined places now.  It‘s not that it‘s going to Mexico, it‘s you‘re in a confined aircraft.  When one person sneezes, it goes all the way through the aircraft.  That‘s me.  I would not be, at this point, if I had another way of transportation, suggesting they ride the subway.

(END VIDEO CLIP)

MATTHEWS:  So let‘s get this straight.  Mr. Amtrak is advising people to stay away from public transportation?  More on Biden‘s gaffe in the “Politics Fix.”

And finally, I was on the “Tonight” show last night with Jay Leno. 

We‘ll show you a bit of that mayhem in the “Sideshow.”

But first, the Republican blame game.  Tom DeLay was the House majority leader and Chris Shays was a Republican congressman from Connecticut.  I want to start with Tom DeLay, who‘s right with me now.  What‘s going on with the Republican Party?  You once had, on the other side of the Hill from you, almost 55 or 56 senators.  Now you‘ve got 40.  What happened?

TOM DELAY (R-TX), FORMER HOUSE MAJORITY LEADER:  Well, obviously, the Republican Party is taking a political bath, and it has ever since ‘06 election and certainly in the last election.  We‘re searching for leaders.  We‘re searching for our principles again, although I don‘t think we lost our principles, we failed to communicate them.  And we need to convince the American people that we still have our principles and we‘re going to stand on those principles because people will gather around and support men and women of principle.

MATTHEWS:  Did Arlen Specter leave because he has principle and your party doesn‘t?

DELAY:  Arlen Specter, actually, if you look at his voting record, votes probably with the Republican Party 90 percent of the time.  The last vote he cast that infuriated people in Pennsylvania was the vote on the stimulus package...

MATTHEWS:  Yes.

DELAY:  ... and that brought him down.  A lot of times, you got to look within yourself.  And the switch of the party had nothing to do with running him out of the party or coming against him.  He had all kinds of support from people who are within the party.  It had everything to do that he was convinced that he could not sustain an election in his primary, and he wants to remain a senator.  So he switched parties to...

MATTHEWS:  In all fairness, Congressman—I have been paying attention to this fellow‘s voting regard since I was a kid.  He does tend to vote more Republican, up in the 80s, right before an election.  That‘s true.  In off seasons, he tends to be more in the middle.

But let‘s look at this blame game that‘s going on right now. 

“Politico” had a good synopsis today.  Let me run through it verbatim.  This is what they say.  “Orrin Hatch and George Voinovich blame the Club for Growth for imposing a right-wing litmus test that chased Arlen Specter out of the Republican Party.  The Club for Growth blames Specter himself, first for helping to ruin the GOP and then for leaving it.  Senator Lindsey Graham sniped at Republican National Committee chairman Michael Steele.  Karl Rove blamed Specter again himself.”

Congressman Shays, you got beaten in the party that can‘t seem to win in New England anymore.  What do you think?

CHRISTOPHER SHAYS (R-CT), FORMER CONGRESSMAN:  Well, first off, I don‘t think Condi was ballistic, so I think you just got a little carried away there.

But you know, this—I wouldn‘t even have appeared on the show if I thought this was about a blame game.  I don‘t think it‘s about a blame game.  Tom and I disagree on a lot of issues, but a party has to be large enough and broad enough to enable an elected official to represent his constituents.  And my constituents in New England, the ones I represent in Connecticut, may be different than constituents in Texas.  The party has to enable that to occur, that I can do my job representing my constituents and have core values be consistent.

So Arlen did vote most of the time with the Republicans, but he was a moderate.  And you know, I‘m sorry to see him go.  I think he made a mistake.

MATTHEWS:  Well, let me call you on Condi Rice, just to clear that up, since you said I went overboard on that one.  Let me read you her entire statement, and you tell me whether it sounds Nixonian or not.  “In the memo, you authorized torture—I‘m sorry, not torture—I‘m sorry, waterboarding—is waterboarding torture?”  “Well, the president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against Torture.  I didn‘t authorize anything.  I conveyed the authorization of the administration to the agency, that they had policy authorization subject to the Justice Department‘s clearance.  That‘s what I did.”

And then the question is, “Is waterboarding torture?”  “I just said” -

this is her—“I just said the United States was told—we were told nothing that violates our obligations under the Convention Against Torture.  And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.”

That is Nixonian, Congressman.

SHAYS:  No, well...

MATTHEWS:  She‘s saying if the president said it, it‘s not a violation.

SHAYS:  Wait a second.  You just disagree with her answer, but it‘s her answer.  And I don‘t think she went ballistic, but that‘s a small point.  I mean, she‘s a pretty...

MATTHEWS:  No, I didn‘t say she went ballistic.  I thought you said I did.  I‘m just saying she is saying that the president says something is legal, it is.  Do you agree with that?

SHAYS:  No.  So I disagree with that basic point.  But you know, I think she—I—the bottom line is I think she did a great job, and I don‘t think she went ballistic.

MATTHEWS:  OK.  Well, let me ask you—you don‘t want to engage in the blame game, but is the Republican tent too small right now, with Specter squeezed out of his own party?

SHAYS:  Right.  No, it is definitely too small.  And I think, you know, we worried about things we shouldn‘t have.  When we worried about Terri Schiavo and making that a federal issue, it defined everything I thought Republican believed in, which was state government, state courts, not an activist federal court.  And I felt while Rome was burning, we focused on issues we shouldn‘t.  But I was free to express my view, Tom could express his view, under a party that included both of us.

DELAY:  And that—and Chris was a fantastic member of Congress, and 

Connecticut, I don‘t know why, but they are less—they are not as better

good—as well off as they would have been if they‘d have kept him as Congress.

If you remember, during the time the Republicans were in the majority, we had very small margins.  We got down to a five-vote margin at the time, and we had 30 to 50 so-called moderates.  Our most liberal member was more conservative than the most conservative Democrat.  And we had to include everybody in everything that we did, or we couldn‘t have been as effective as we were.

MATTHEWS:  If you had to choose between...

(CROSSTALK)

MATTHEWS:  Congressman, if you had to choose between Arlen Specter, Republican, running in a primary next year, if he‘d stayed in your party, and Pat Toomey of the Club for Growth, who would you have voted for?

DELAY:  I would probably have voted for Pat Toomey.  But...

MATTHEWS:  Right.  Well, then, you guys are running this guy out of the party.

DELAY:  No, that‘s what primaries are all about.  If you want to do away with the primary system—that‘s how the party decides who they are...

MATTHEWS:  Right.

DELAY:  ... is through the primary system.  And thank goodness we have that process, that parties can express themselves.  They can nominate the person that they want to nominate to put up for the general election, and all the factors of a campaign have to be taken into consideration.

SHAYS:  And the deal was made that Specter could become a Democrat, but they can‘t guarantee that Arlen Specter is going to win a Democratic primary.  I mean, Chris, you could run against him and maybe you would beat him.  I mean, there is a political process that will determine ultimately whether Arlen Specter returns as a senator.

MATTHEWS:  Well, let‘s talk about the Republican Party and how it‘s been over the years.  Congressman Shays, you know, we both grew up in a country where the Northeast was pretty strong for Republican senators all those years.  In fact, I think just about every Northeastern state had one or two—in many cases, two Republican senators when we were growing up.  You know, you had Keating and Javits in New York.  You had Heinz and you had—Heinz and you had Hugh Scott in Pennsylvania, and later Schweiker.  And you had—and Specter when he was in that fold.  And then you had Saltonstall and you had Weicker in Connecticut and Clifford Case in New Jersey, Aiken up in Vermont, and the whole Northeast was filled with Republican senators.  Now they‘re all gone, pretty much.  What happened?

SHAYS:  Well, I think part of what happened is people didn‘t like the past administration, and I think we carried, you know, what people felt about the past administration.  That obviously was a factor.  If Kerry had won the race a few years ago, we would probably still be a majority party and you‘d be talking about what happened to the Democratic Party.

DELAY:  I agree with that.

MATTHEWS:  You think Kerry would have brought down the Democrats.

DELAY:  Exactly right, as Obama is going it bring down the Democrats.

MATTHEWS:  You‘re smiling already.

DELAY:  Absolutely.

MATTHEWS:  And you‘re convinced...

DELAY:  I hate what‘s going to happen to our country over the next few months and next year, but...

MATTHEWS:  Well, why are you smiling then?

DELAY:  Because it‘s all in the Democrats‘ hands.

MATTHEWS:  But you‘re chuckling at this!  You have got the look.  You have a happier face when you‘re sadistic than Cheney does...

(LAUGHTER)

MATTHEWS:  ... but you seem equally sadistic about this.

DELAY:  But your description of the Northeast could be the same thing for the Democrat party in the South.

MATTHEWS:  Yes.

DELAY:  Look, the South was totally Democrat.  Texas was—there were no Republicans elected in Texas in the 1970s...

MATTHEWS:  Yes.

DELAY:  ... and now it‘s all Republican.

MATTHEWS:  OK.  Well, let‘s get back to something because I agree with something Mr. Shays said.

SHAYS:  Chris...

MATTHEWS:  I think it was the Schiavo case, ironically, that got elected a very pro-life guy like Bobby Casey in Pennsylvania.  I think it was an overreach of government authority that Republicans who were somewhat libertarian didn‘t like.  They said, I‘m religious, I care about life and end of life issues, but I don‘t want some U.S. Congress holding a weekend meeting with Rick Santorum playing chaplain.  It got a little out of hand.  It began to look like a theocracy, like the mullahs were running the country.  That‘s what it began to—now you can argue.

DELAY:  Well, I...

MATTHEWS:  You‘re not going to smile, but that‘s what it began to look like.

DELAY:  I‘m the guy who made the effort.

MATTHEWS:  Well, look what it—what do you think it looked like? 

Mr. Shays just said it ran his kind of Republicanism off the map.

DELAY:  It put Chris Shays in a very uncomfortable position in his district, but Chris stood by his guns and he did what he needed to do to represent his district.  The point—the whole Terry Schiavo thing is we had less than a day to save a person‘s life that ultimately was starved to death by our government.

MATTHEWS:  Right.

DELAY:  And we did what we thought we could legally do by allowing...

MATTHEWS:  I think it was by the family decision.

DELAY:  ... allowing...

MATTHEWS:  Let‘s get that straight.  It was the family decision, the husband.

DELAY:  No, the family didn‘t get to decide.

MATTHEWS:  The husband did.

DELAY:  They wanted to take care of her.

MATTHEWS:  The husband decided.

DELAY:  The husband, who had already moved in with another woman.

MATTHEWS:  So what, the government should move in with her now?

DELAY:  No, the government should use everything in its power...

MATTHEWS:  OK.  Well, that‘s what the issue was.  Congressman Shays, you raised the issue.  I think families, at some point, don‘t like to die, they don‘t like their loved ones to die, but they also don‘t like the federal government being Big Brother.  That‘s just my thought.  Is it what mattered to you or mattered to your people?

SHAYS:  You know, Chris, I‘d love to say that when it related to Terry Schiavo, the thing that was stunning about it was that we were basically flipping, I think, our Republican principles on end, you know, wanting an act of the federal court, not allowing for individual decisions and the freedom of individual choice.  But Tom and I can disagree with that.

But one of the issues that I‘m always struck by with my conservative friends in my own party—and I say this to them—you know, you‘re against government intervention unless it‘s on the farm bill.  So even my own conservative Republicans believe in strong government intervention when it enables them to represent their district.  And I‘m just trying to make the case that I don‘t have a lot of farmers.  I have a lot of urban folks who need to have me respond to their needs.

And so we just need to have an open, grown-up dialogue, and so don‘t get out of sort (SIC) about what Specter did.  If you don‘t like what Specter did, someone can run against him and it‘ll sort itself out.

MATTHEWS:  Yes.

DELAY:  It may surprise you that I‘ve never voted for a farm bill, by the way...

MATTHEWS:  Yes.

DELAY:  ... and I had rice farmers, and I stood up in my district and I would like to eliminate the farm bill.

SHAYS:  But Tom, you know what I‘m saying, though.  I mean...

DELAY:  Yes, I know what you‘re saying.

SHAYS:  ... a lot of conservative members in our own caucus would vote for a bill like that because they were able to represent their district.  The bottom line is a party has to enable an elected official to represent the district they are elected in and—but still hold onto some basic core values.

We believe in a strong defense.  We believe in individual responsibility.  We believe and should have done a better job holding down spending, but you know, we lost our way in that regard.  But we‘re going to sort it out.

But I think Arlen made a mistake.  I think it wasn‘t good for the country.  I think it wasn‘t good for the Republican Party.  And I think, ultimately, it won‘t even be good for him.

MATTHEWS:  OK.  Thank you very much, Chris Shays of Connecticut and Tom DeLay of Texas.

Coming up next, our strategists on how to save the Republican Party from itself, if you will.  Should they go back to pure conservativism or try to broaden out ideologically?  And what should the Democrats do to take advantage of the Republicans‘ sort of circular firing squad that seems to be at work these days?

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  The Republican Party is on the decline right now, and party leaders are scrambling to find a rebuilding strategy.  What should they do?  And what should Democrats do to capitalize on their misery, if you will?  And for that, we turn to our strategists, Steve McMahon for the Democrat side and Todd Harris for the Republican side.

Todd, you‘ve got the first opportunity here.

TODD HARRIS, REPUBLICAN STRATEGIST:  Oh!

MATTHEWS:  I haven‘t seen anything like...

(CROSSTALK)

MATTHEWS:  I was stunned when Hillary Clinton was named secretary of state.  I said, Wow, strange bedfellows here.  And then I heard Arlen Specter the other night.  I mean, I‘ve been seeing that guy in Pennsylvania politics all my life.  Now, he was a Democrat.  He switched to Republican under the deal he made with the Republican boss in Philly, Billy Meehan (ph), I‘ll become a Republican if I win the DA‘s job...

HARRIS:  Right.

MATTHEWS:  ... because he couldn‘t win on the Democrats‘ side.  And then he stayed with the party under that dispensation or deal for all these years, from ‘66 on.  And here he is in 2009 saying, Well, I‘m facing defeat in the primary in this party, I‘ll join the other party.  It seems a little quick and easy.  Should people be able to change parties just like that, just like—just change one uniform and put on the other one, just like that?

HARRIS:  I think Specter had an obligation to the Republicans who, you know, put him in office in the first place by winning the primary.  Look, David Broder today in “The Washington Post,” who is hardly a hothead, said that Arlen Specter will be with you for as long as it‘s useful to him and not a day longer.

And I think there are really two separate issues here.  The whole issue of Specter switching is getting wrapped up into the story about the reassessment of the Republican Party.  And the Republican Party does need a reassessment.  But let‘s be clear.  Specter switched parties for personal ambition.  That poll that he took, if it had come back showing him winning, he would still be a Republican right now. 

MATTHEWS:  Yes. 

(CROSSTALK)

MATTHEWS:  So, you don‘t have any problem with him doing what he did, or do you have a problem with... 

(CROSSTALK)

HARRIS:  No, I do have a problem with it, because I think he did it for the wrong reasons. 

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  Well, he absolutely did it for the wrong reasons. 

In fact, he didn‘t even pretend like it was a matter of principle.

HARRIS:  Right. 

(LAUGHTER)

MCMAHON:  He simply said:  I couldn‘t win a Republican primary, and I want to stay in the Senate for good reasons, because I want to stay in the Senate. 

(CROSSTALK)

MCMAHON:  But what‘s ironic here is that he—he changed parties to avoid a primary that he couldn‘t win, and he may up—end up in a primary he can‘t win. 

There was a poll that was taken just a few weeks ago that showed Arlen Specter getting beat by a Democrat by 20 points in—in a...

MATTHEWS:  Right. 

MCMAHON:  ... among—among Democrats, by 20 points. 

MATTHEWS:  Murphy?  Or who was beating him? 

MCMAHON:  Well, it doesn‘t matter. 

MATTHEWS:  Yes. 

MCMAHON:  Any Democrat who is—like, Ed Rendell, the mayor, Mayor Nutter, would easily beat him.  But I think any Democrat that gets in and runs as a real Democrat would beat him in a primary.

And the question is, what does Barack Obama and Chuck Schumer and Harry Reid and all the Democrats in the Senate do then?  Because I think it puts them in a really tough spot. 

MATTHEWS:  Well, the problem for the Republican Party, writ large, is that you can‘t win in the Northeast.  All you have got left are the two senators, basically, in Maine and one senator in New Hampshire who is retiring.  After the retirement of Voinovich in Ohio and Martinez in Florida, you could really be peeled back. 

It‘s going to be goodbye Columbus at some point here.  The map is moving right across the country, where you guys can‘t win, and from the other end, too.  The—the—the West, you don‘t have a single senator on the West Coast.  All six senators, California, Washington State, Oregon, are all Democrats. 

HARRIS:  We‘re in, you know, a real—or we at least should be—in a real state of reassessment right now.  The—the party has got to redefine...

MATTHEWS:  Well, reassess.

HARRIS:  Well, the party has got to redesign what it means to be a conservative. 

It used—everyone used to know, because Reagan brought a certain moral clarity and clarity of purpose to conservatism.  It meant smaller, more efficient government, lower taxes, personal freedom and—and responsibility. 

But let‘s be honest.  After the last eight years, with deficits through the roof, government spending through the roof, Katrina, an unpopular war...

MATTHEWS:  You‘re taking all the fun out of this, Todd.

HARRIS:  ... people...

(CROSSTALK)

MATTHEWS:  You‘re admitting all the problems. 

HARRIS:  Because there are.  Well, how are you going to—it‘s like going to therapy.  You‘re never going to solve your problems unless you admit to them first. 

(LAUGHTER)

HARRIS:  Yes, we—people have lost what it means to be a conservative.  So, the first thing we need to do is redefine conservatism around the banner of smaller, more efficient government, lower taxes, greater personal freedom and responsibility.

Secondly, we need to take those core principles and apply them to issues like health care reform, job creation, education, issues that are not necessarily going to things that aren‘t just cut...

(CROSSTALK)

MATTHEWS:  Yes. 

HARRIS:  ... taxes, smaller government.  We need a message for people who are looking for something beyond that.

MATTHEWS:  Well, in the meantime, while they‘re going through these deliberations and soul-searching, you guys can sweep. 

MCMAHON:  Well, I mean, that‘s—that‘s the hope. 

And if you look at the top aide Senate targets for next time, only one of them is a Democrat.  And it looks like the map is lining up for Democrats.

MATTHEWS:  You could pick up Missouri.  Florida will be tough. 

(CROSSTALK)

MATTHEWS:  Charlie Crist could be tough, if he runs.  You could pick up Ohio. 

MCMAHON:  Yes. 

MATTHEWS:  You know, you could pick up New Hampshire.  I see a lot of opportunity. 

MCMAHON:  There‘s a lot of opportunity.  It‘s not just—it‘s not just in the Northeast and Midwest.  It‘s in the South as well.

MATTHEWS:  Kentucky.  Bunning could be beaten, if you go after him.

MCMAHON:  If you look at—if you look at what is—if you look at what is happening with the Democratic, have expanded, since the Kerry campaign, from an 18-state strategy of a national party, to a strategy where we go everywhere. 

It used to be that Tom DeLay got a free pass.  And there was a Democrat in that seat up until—up until November.  Chris Shays was somebody that was—that was considered to be unbeatable, and the Democratic Party spread out and went everywhere, and is now competing everywhere. 

Barack Obama won states that—that a Democrat hasn‘t won for 40 years, because he competed everywhere. 

MATTHEWS:  OK. 

(CROSSTALK)

MATTHEWS:  Did you guys make a mistake by cutting a deal with the religious right that you were going to be always there?  There‘s looking at that map, by the way.  It tells a lot.

That you‘re always going to be there on right-to-life issues, you‘re always going to be there on stem cell, you‘re always going to be there on same-sex, and then made addition—a deal with Dixie years ago you were going to be a little slow-mo on—on civil rights?

HARRIS:  Well, I think, on the issue—on the social issues, whether it‘s abortion, stem cell, I don‘t—I don‘t think on the issue of civil rights.  I think that civil rights—put—I will put that one aside, because I think our party was wrong on those issues. 

But, on the issue of abortion, stem cell, there are a lot of Republicans who feel very, very deeply and have very deeply-held personal beliefs on that.  And we ought to be honoring those. 

But we also ought to honor those people who disagree with the party platform on those issues, but are going to be with us on things like cutting taxes, reducing the size of government. 

I—as I said before, I think Specter left the GOP for purely personal political ambition.  Having said that, it was of note that a lot of Republicans were cheering the departure of a guy who was with us about 70 percent of the time, while the Democrats were welcoming with open arms a guy who is only with them about 30 percent of the time. 

MCMAHON:  Right.  That‘s right. 

You know, if you look at what has happened recently, Chuck Schumer went to Pennsylvania and recruited Bobby Casey Jr. to run.  And it wasn‘t very long ago that a—that a committee chairman like Chuck Schumer couldn‘t do that, because Bob Casey was pro-life.  And he got a lot of—he got a lot of flak for doing it from the left.

And he said, you know what?  I‘m recruiting candidates who can win. 

Rahm Emanuel did the same thing in the House. 

(CROSSTALK)

MCMAHON:  He got a lot of—he got a lot of flak.  And we won. 

MATTHEWS:  I think you picked up a veteran free—free agent late in the season to help with the playoffs.  I think Specter doesn‘t have a lot of years left in him.  He‘s maybe 10, 20 years, for all I know.  But you really want him for health care. 

MCMAHON:  Look what Sergei Fedorov did the other night, huh?

MATTHEWS:  I think—I know.  I just think you want him for health care this year.  The future is now.  That‘s what this is about. 

(CROSSTALK)

MATTHEWS:  Anyway, this is the old Redskins thing. 

Anyway, Steve McMahon, Todd Harris. 

Up next:  Jay Leno plays a little hardball with me, trying to get me to grade our new president, which he managed to do.  That‘s in the “Sideshow” coming up. 

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

MATTHEWS:  Back to HARDBALL.  It‘s time for the “Sideshow.” 

Last night, I was out in L.A. for a turn on Jay Leno‘s “Tonight Show.”

Here is a little bit of it. 

(BEGIN VIDEO CLIP, “THE TODAY SHOW”) 

JAY LENO, HOST, “THE TONIGHT SHOW WITH JAY LENO”:  What grade would you give the president so far? 

MATTHEWS:  Well, let‘s—let‘s do it pass/fail, OK? 

LENO:  No—what, pass/fail? 

(CROSSTALK)

(LAUGHTER)

MATTHEWS:  Come on.  I think it‘s—I think it‘s...

(CROSSTALK)

LENO:  What kind of lame-ass school is this?  Pass/fail. 

MATTHEWS:  OK. 

(LAUGHTER)

MATTHEWS:  OK.

LENO:  A, B, C, D, F, where would you go?

MATTHEWS:  Well, can I work this a little?  Like, it seems to me...

LENO:  OK.  Give me...

(CROSSTALK)

MATTHEWS:  It seems to me that our polling at NBC came out last night.  It‘s the highest in five years that people say we‘re going in the right direction. 

LENO:  OK.

MATTHEWS:  So, one thing you can say is, nobody wants to go back to Bush, nobody. 

(CHEERING AND APPLAUSE) 

(CROSSTALK)

MATTHEWS:  I think the first family has got an A-plus...

LENO:  OK.

MATTHEWS:  ... as a family. 

LENO:  OK. 

MATTHEWS:  I think that—I think...

(CHEERING AND APPLAUSE) 

LENO:  OK.

And, as president, you would give him what? 

MATTHEWS:  Well, I would give the dog an A. 

LENO:  The dog an A.

(LAUGHTER)

LENO:  And what do you give the president? 

MATTHEWS:  Bo Dietl (sic), Bo—Bo—named for Bo Dietl (sic).

LENO:  And you give the president what?

MATTHEWS:  I would give him an A-minus. 

(END VIDEO CLIP)

MATTHEWS:  Well, I‘m still worried—the reason for the A-minus, I‘m still worried about the numbers, the printing of all that money lately, the spending of all that money we don‘t have.  I don‘t know what the impact is going to be in the long run. 

Anyway, next up: the ravages of time.  Joe Biden on “Today” today, he was there, and he was asked how he left about not being on that ridiculous 100 most beautiful people in “People” magazine this week, when the likes of presidential speechwriter Jon Favreau, Tim Geithner, and even Rahm Emanuel made the list. 

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, FORMER U.S. SECRETARY OF STATE:  The president instructed us that nothing we would do with be outside of our obligations, legal obligations. 

(END VIDEO CLIP)

MATTHEWS:  Well, that‘s not exactly the right clip. 

(LAUGHTER)

MATTHEWS:  We will get to that later.  Well, it was early in the day. 

Anyway, by the way, among the credible folks singled out as Barack‘s beauties in “People” magazine were first lady Michelle Obama and White House Social Secretary Desiree Rogers. 

Well, time now for tonight‘s “Big Number.” 

Today, we learned that Texas Governor Rick Perry issued a disaster declaration down in Texas.  He‘s looking for help from the federal government to help control the outbreak of swine flu. 

Lest we forget, this very month, Governor Perry made the historically inaccurate comment that Texas had the option of seceding from the union if it didn‘t like the way things were going in Washington.  And, so, “Mother Jones” magazine today dug up this sugarplum statistic about the Lone Star State and the federal government. 

Since Governor Perry took office, how many times has Texas received federal assistance, disaster assistance?  Thirteen times, more than any other state.  The number of times Governor Perry has taken help from the federal government he doesn‘t want to be associated with, apparently, 13 times—tonight‘s “Big Number.” 

Up next:  Condoleezza Rice is defending water-boarding, saying that, because President Bush authorized it, it‘s OK.  Well, that sounds an awful lot like Richard Nixon would have said it. 

The politics of torture—coming up next.

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

SHARON EPPERSON, CNBC CORRESPONDENT:  I‘m Sharon Epperson with your CNBC “Market Wrap.”

Stocks closing mixed, after a volatile day.  The Dow lost 17 points. 

The S&P 500 was down fractionally, while the Nasdaq gained five points. 

Chrysler filed for bankruptcy protection, after failing to gain full support from its lenders to avoid the move.  It also announced an alliance with Italian automaker Fiat.  Chrysler hopes to emerge from bankruptcy in 30 to 60 days.  But, starting Monday, it will halt most of its vehicle production until it emerges. 

Meantime, Chrysler CEO Bob Nardelli says he will leave the company after bankruptcy. 

President Obama said the bankruptcy is not a sign of weakness, but a step toward Chrysler‘s revival.  And the government is providing another $8 billion in loans to help with the restructuring. 

Also making headlines, first-time jobless claims fell unexpectedly last week, and ExxonMobil‘s profit fell 58 percent from a year ago. 

That‘s it from CNBC, first in business worldwide—back to HARDBALL. 

MATTHEWS:  Welcome back to HARDBALL. 

President Obama avoided calling water-board and the Bush administration‘s legal justifications for it a crime last night. 

And, earlier this week, former Bush National Security Adviser and Secretary of State Condoleezza Rice seems to be channeling Richard Nixon here. 

Listen to what she said about water-boarding in this rather crude video we have right now, which was shot by a student at Stanford. 

(BEGIN VIDEO CLIP)

RICE:  The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against Torture.

So that‘s—and, by the way, I didn‘t authorize anything.  I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department clearance. 

UNIDENTIFIED MALE:  OK. 

RICE:  That‘s what I did. 

UNIDENTIFIED MALE:  Is water-boarding torture, in your opinion? 

RICE:  And I just said the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture.  And, so, by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture. 

(END VIDEO CLIP)

MATTHEWS:  So, what do we make of that, when she said, and, by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture, Pat?

What does that mean? 

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  Well, I don‘t know.

I think—well, obviously, it means exactly what it says, that they don‘t think that water-boarding, if it was authorized, was in violations of the Conventions Against Torture.  But if—saying the president, if he authorizes something, it can be legal, I guess that is like what they did in World War II, when FDR and Truman authorized black bag jobs on various embassies to go in and steal equipment and things like that.  They stole the codebooks that my cousin Meredith Gardner used to break the Soviet code and do the Venona transcripts. 

Does the president have this extraordinary authority in time of war? 

I think it‘s something you ought to take up to the Supreme Court.

MATTHEWS:  Well, I think—well, I want to take it up with the professor.

Jonathan Turley of G.W. Law, let me ask you that.  Can a president define the law?  Can he say, as Nixon said famously, if I say it, it‘s legal?  And this is a case where the—Condoleezza Rice, the former secretary of state, is quoted here by that student photographer who picked that up on his cell phone or her cell phone—quote—“If it was authorized by the president, it did not violate our obligations under the convention.”

JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON

UNIVERSITY:  Well, we...

MATTHEWS:  What does that mean, by the way? 

TURLEY:  Well, first of all...

(CROSSTALK)

MATTHEWS:  Pat said it has a meaning.  If the president says it‘s OK, what does that say? 

TURLEY:  Well, first of all, it‘s already been to the Supreme Court. 

But, more importantly, this is the dividing line between tyranny and a democracy.  That is, if a president can become a law unto himself, that whatever he says has the fiat of authority, then you no longer have a democratic system.  We rejected that a very long time ago, thank God. 

It defines us as a people.  And Nixon learned very well that his theory of the law did not apply.  And he found himself chased out of office and ultimately needing a presidential pardon. 

BUCHANAN:  With—with due respect, first, Nixon was never—never indicted at all by the House Judiciary for the bombing of Cambodia, presumably outside the law.  And Abraham Lincoln trampled all over the United States Constitution, suspended unilaterally habeas corpus for 15,000 people, correct? 

TURLEY:  Yes, but, you see, the problem, Pat, is, this goes with your argument that we bombed Hiroshima, that anything short of nuclear annihilation is probably OK now. 

The fact is that we signed a treaty.  We gave our word that we would prosecute torture.  It‘s our word.  When you were working for Nixon, and when you were working for Reagan, you often criticized the Soviets, that they couldn‘t be trusted when they signed treaties. 

BUCHANAN:  Right. 

TURLEY:  Well, we are supposed to be trusted.  We gave our word as a nation that we would prosecute people who tortured.

BUCHANAN:  All right.  All right. 

TURLEY:  And, so, this is a crime on our books. 

BUCHANAN:  First—all right, but, you know, look, first, you‘re saying, that‘s torture.  And that is in dispute.  I agree with you.  I think it ought to go up to the Supreme Court. 

Let me ask you.  He cited Winston Churchill last night.  Churchill would not do this.  Churchill fire bombed the city of Dresden, a city defenseless, February, 1945, burned to death 100,000 men, women, and children, who were refugees.  Was that a war crime? 

TURLEY:  Pat, according to your logic, the president could go out and douse someone on Pennsylvania Avenue and burn them alive.  The point is, that was an act in war time.  At the time, they did do blanket bombing.  Today, by the way, many things that we did in World War II might be viewed as a war crime. 

But that‘s beside the point.  We signed a treaty.  We gave our word on torture.  We‘re talking about torture, a defined crime, for which we prosecuted other countries for. 

BUCHANAN:  Wait a minute—

MATTHEWS:  let‘s look at the president here.  I want to get into what can be prosecuted.  Here is the president last night giving his delineation, when he was asked if the Bush administration sanctioned torture. 

(BEGIN VIDEO CLIP)

OBAMA:  What I have said, and I will repeat, is that water boarding violates our ideals and our values.  I do believe that it is torture.  I don‘t think that‘s just my opinion.  That‘s the opinion of many who have examined the topic.  And that‘s why I put an end to these practices. 

I am absolutely convinced it was the right thing to do. 

I believe that water boarding was torture.  And I think that the—whatever legal rationales were used, it was a mistake. 

(END VIDEO CLIP)

MATTHEWS:  Well, how do we solve this dispute between you and Pat about whether something is proper governmental decision making, proper decision making by the president.  Let me ask you about the legal qualifications; if you take a really tough ass prosecutor like Patrick Fitzgerald, and you get him with the right attitude, rub some blood in his nose or whatever it takes to get that guy mad at somebody, and he really gets going, what crime would he hold this administration to, and put them in jail for or whatever?  What would the crime be under the U.S. code that he could prosecute torture for? 

TURLEY:  Well, first of all, it‘s a target-rich environment.  He could go for 18-USC-2340, which is the torture act.  There‘s also the War Crimes Act.  There‘s a Military Act that he can apply. 

MATTHEWS:  They all have clear sanctions. 

TURLEY:  You could prosecute people for assault and battery.  This is an assault upon a human being outside the authority of law.  On top of that, it‘s a direct violation of the convention of torture.  Even Rice herself admitted that was a primary concern they had. 

MATTHEWS:  These legal opinions, granted by the top government people working for President Bush, at his request, these legal opinions would not protect people?  If these crimes were committed, under the law, they would be prosecuted, no matter what legal advisory they had gotten. 

TURLEY:  In fact, the law that she cited, the Convention Against Torture, Article II says that it is not a defense to say that you received an order from a superior officer or someone in public authority.  It‘s expressly ruled out as a defense. 

MATTHEWS:  So why did all these guys seek legal opinions in this administration?  Why was there so much writing of opinions about torture.

TURLEY:  They were trying to get legal cover.  When you read the memos, it‘s clear.  These memos read like a mob lawyer writing to his client of how to avoid a criminal charge.  And unfortunately, you can‘t.  If you‘re going to commit a war crime, it‘s pretty hard to avoid that.

BUCHANAN:  Let me dissent from Chief Justice Turley here.  Look, the way to decide this, quite simply, is to have the administration and the liberals, if they believe this, to prosecute, to call up the president of the United States and the members of the security—just take the president, and make the charge against him.  Water boarding is torture.  We declare it to be so.  Take this to court. 

Take it up to the Supreme Court, who will throw it over to the Congress of the United States, because a matter in dispute between the president and—the president can only be thrown out, my guess is, at least they‘ll give an opinion.  And let them decide the damn thing, because there‘s disagreement.

You say these lawyers simply went up and wrote cover.  I don‘t know that.  I don‘t know that they‘re dishonest guys.  They may be mistaken.  There are soldiers who say it‘s torture.  There are soldiers who say it‘s not.  There are civilian who disagree on it. 

Put it through the courts if that‘s what you want to do. 

MATTHEWS:  No one is disagreeing this is torture.  We have case authority saying it‘s torture.  Most people have given up this argument, this canard that water boarding is not torture.  We prosecuted people for water boarding.  Other countries—

(CROSS TALK)

BUCHANAN:  You just saw the secretary of state say it was not.  She said it was not a violation—

MATTHEWS:  Why is President Obama keep calling it a mistake, which sounds like he‘s pulling his punches? 

TURLEY:  I‘ve got to tell you, I‘m very disappointed with that.  He has consistently avoided using the word crime with torture. 

MATTHEWS:  Because then he would have to act.  Wouldn‘t he? 

TURLEY:  He doesn‘t have that problem when he refers to terrorism. 

Terrorism he says is a crime. 

MATTHEWS:  But we don‘t have those people—if he has a crime that he sees being perpetrated by a previous administration, wouldn‘t he have to prosecute it? 

TURLEY:  I honestly believe that this is all political considerations trumping principle.  But what is confusing to people around the world is it makes our president look like he‘s not recognizing the obvious fact that torture is a crime.  It‘s not his decision. 

When you said, I thought it was the right decision; it‘s not his decision.  He doesn‘t have the authority to torture.  Neither did his predecessor. 

MATTHEWS:  When does the president have a moral right to break the law?  Does he ever? 

BUCHANAN:  Sure, sure he does. 

MATTHEWS:  Never? 

TURLEY:  He doesn‘t have a right to break the law.  The nation—

MATTHEWS:  Never?

TURLEY:  The nation is committed—

MATTHEWS:  OK.  If Vice President Cheney—and I‘m no fan, obviously

if he had shot down that plane, if it had made it all the way to Washington, headed for the capital—

TURLEY:  That‘s not necessarily a violation of law. 

MATTHEWS:  That isn‘t a violation? 

TURLEY:  Not necessarily.

MATTHEWS:  Why not? 

TURLEY:  The president—the president does have the authority to act to protect the country, but there are—

MATTHEWS:  To kill hundreds of civilians? 

TURLEY:  There—

BUCHANAN:  Chris, he‘s not directly killing people.  He‘s defending the Capitol from what became, in effect, an enemy missile.  Take FDR, he put 100,000 Japanese, many of them American citizens, into literally concentration camps.  And the Supreme Court, they said go ahead and do it.  It‘s legitimate.  Later on, we all apologized because we said that was a crime, violation of their rights. 

TURLEY:  Pat just gave the exact reason why Obama has to prosecute here, because in 20 years, there will be Pat Buchanan Jr. sitting here and saying, look what George Bush did, and he wasn‘t prosecuted.  We can‘t hang them—

MATTHEWS:  It becomes a precedent. 

TURLEY:  That‘s right. 

MATTHEWS:  Good argument.  To be continued.  Jonathan Turley, Chief Justice Turley, as Pat gave you that honor.  If he could do that, he would make you that, I think, and then destroy you.  Pat Buchanan. 

Up next—I like this argument, because it‘s not clear who is going to win this one.  Up next, a stunning statement from Vice President Joe Biden.  He says Americans should stay off planes and subways to protect against the Swine Flu.  The travel industry is a bit upset.  How big a gaffe is this from the VP.  That‘s up next, where it belongs, in the politics fix.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back and it‘s time for the fix with Ron Brownstein, the political director for “Atlantic Media,” and “Newsweek‘s”, my friend, Jonathan Alter, who is on MSNBC as an analyst always.  He‘s author of “The Defining Moment,” what a great book that is, about the early days of the Roosevelt administration.

Here‘s Vice President Joe Biden, who all love, talking to Matt Lauer, who we also all love, on the “Today Show.”  Let‘s listen.   

(BEGIN VIDEO CLIP)

MATT LAUER, “THE TODAY SHOW”:  If a member of your family came to you and said, look, I want to go on a commercial airliner to Mexico and back within the next week, would you think it is a good idea? 

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES:  I would tell members of my family—and I have—I wouldn‘t go anywhere in confined places now.  It‘s not that it‘s going to Mexico.  It‘s you‘re in a confined aircraft.  When one person sneezes, it goes all the way through the aircraft. 

That‘s me.  I would not be, at this point, if they had another way of transportation, suggesting they ride the subway. 

So from my perspective, what it relates to is mitigation.  If you‘re out in the middle of a field and someone sneezes, that‘s one thing.  If you‘re in a closed air craft, or closed container, or closed car, or closed classroom, it‘s a different thing. 

(END VIDEO CLIP)

MATTHEWS:  The vice president‘s spokeswoman, Elizabeth Alexander, put on the this statement shortly after the vice president‘s appearance on the “Today Show,” quote,” the advice he is giving family members it the same advice the administration is giving to all Americans, that they should avoid unnecessary air travel to and from Mexico.  If they are sick, they should avoid airplanes and other confined public spaces, such as subways.  This is the advice the vice president was giving family members who are traveling by commercial airline this week.  As the president said just last night, every American should take the same steps you would take to prevent any other flow.”

Well, obviously that‘s not what the vice president said.  He said nothing about Mexico.  He said don‘t get on an airplane.  Don‘t get on a subway.  An amazing statement. 

RON BROWNSTEIN, “ATLANTIC MEDIA”:  It is an amazing statement.  One thing the Obama administration says is that Joe Biden is more helpful to the president in private than in public.  I think that‘s something on which we can all agree. 

MATTHEWS:  You‘re so sarcastic.  I‘m going to take the mike away from you.  Let‘s go to Jonathan Alter, sir.  It was—I‘m always sympathetic to Joe Biden.  I like the guy.  He was trying not to be ethnic.  He was trying not to take a shot at Mexico in any way.  He says the problem isn‘t Mexico and the flu down there, the problem is confined spaces.  What do you think? 

JONATHAN ALTER, “NEWSWEEK”:  This was just a classic gaffe and then it was bad damage control.  Instead of trying to pretend he didn‘t say something, they should have just said he misspoke or use one of their classic formulations when somebody steps on a banana peel.  People are very indulgent of Joe Biden‘s gaffes.  Everybody would have moved on. 

They should have just acknowledged that what he said was in danger of shutting down the entire transportation industry in the United States.  He just had a great outing on “60 Minutes.”  He had done really well. 

MATTHEWS:  And a good week with Arlen Specter too.  He was the Cupid in that affair.  Here‘s White House Press Secretary Robert Gibbs following up here. 

(BEGIN VIDEO CLIP)

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  I‘m telling you what he meant to say, which was that if somebody is experiencing symptoms—you heard the president say this last night.  If somebody is feeling stick sick, if somebody is exhibiting symptoms of being sick, then they should take all necessary precautions. 

Obviously, if anybody was unduly alarmed, for whatever reason, we would apologize for that. 

(END VIDEO CLIP)

MATTHEWS:  You know, I always go back—lately I‘ve been thinking about being a kid in Catholic school, third grade, getting in trouble, being put out in the hallway.  I feel like I‘m always in the hallway.  Joe Biden has been put in the hallway again. 

BROWNSTEIN:  Especially because I was thinking of the contrast with the president, who is so precise, so disciplined, so careful in the way he chooses words.  You can almost sometimes see the gears grinding as he think about his answer.  Look, I think that Biden is Biden. 

MATTHEWS:  I think he‘s every man.  We‘ll be right back with Jonathan Alter and Ron Brownstein with more sympathy and fun on the politics fix.  You‘re watching HARDBALL.  By the way, it‘s pretty harmless, so far, this stuff.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Jonathan Alter and Ron Brownstein.  You first, Jon.  What is the biggest impact, the bottom line on this Specter switcheroo we‘re still talking about?  

ALTER:  I think the big impact is immediately they might not have to even get to 60 -- they might get to 60 votes for health care, and not have to go to this mechanism that‘s very controversial, that will only require 51 votes, reconciliation. 

MATTHEWS:  I agree. 

ALTER:  So this is big for this year.  It means it‘s now likely that there will be some kind of health care legislation.  The devil is in the details. 

MATTHEWS:  I think they traded for a veteran to win the playoffs this year. 

BROWNSTEIN:  Legislatively, I think health care is the vote he has to give them to preempt any possibility of a primary challenge.  Long-term, the political impact, the Republican marginalization in the northeast is reaching the level of the Whigs in the 1850s.  They will be down to three of the 22 senators from Maryland to Maine after this.  And only 18 percent of the House seats.

He left the Republican party because he felt he could not win a primary.  There were no moderates left.  He sends a signal they are really not welcome at the moment.  A big challenge for the Republicans in a big part of the country. 

MATTHEWS:  So the party of Lincoln is now the party of Dixie? 

BROWNSTEIN:  Absolutely. 

MATTHEWS:  What a flip. 

BROWNSTEIN:  Absolutely.

MATTHEWS:  Thank you, Jonathan Alter.  Good luck with the book, again, “Defining Moment,” one of the great books history we‘ve got before us.  In your bookstores right now.  And Ron Brownstein, thank you.

Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL.  Right now it‘s time for “THE ED SHOW” with Ed Schultz. 

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

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