updated 7/10/2013 10:27:08 AM ET 2013-07-10T14:27:08

HARDBALL
July 9, 2013
Guests: Paul Henderson, Alex Ferrer, Ilyse Hogue, Sylvia Garcia, Phillip
Mudd

MICHAEL SMERCONISH, GUEST HOST: The defense`s strongest witness takes the
stand.

Let`s play HARDBALL.

Good evening. I`m Michael Smerconish, in for Chris Matthews.

Leading off tonight: It was a big day for the defense in the George
Zimmerman trial with a key medical expert backing up Zimmerman`s account of
the shooting.

Vincent DiMaio is a forensic pathologist hired by the defense. Today, he
testified that the physical evidence was consistent with Zimmerman`s
account that Martin was leaning over him when the shot was fired.

That`s important, since Zimmerman said that he shot the unarmed teenager in
self-defense, and the defense has argued Martin was the aggressor in the
confrontation.

Additionally, DiMaio testified that Zimmerman`s wounds could mean that he
sustained severe head trauma, and he may have been struck by Martin as many
as six or more times.

The defense may be winding down its case. How important was today`s
testimony in establishing reasonable doubt? MSNBC`s` Craig Melvin has been
keeping an eye on all of today`s proceedings, and he joins us now from the
Florida courthouse -- Craig.

CRAIG MELVIN, NBC CORRESPONDENT: Michael, good evening to you. Two to
four inches -- two to four inches -- that`s the distance that Dr. DiMaio
said that the gun that shot and killed Trayvon Martin was from Martin.
That was one of the highlights from his testimony today. Dr. DiMaio also
went on to say that the gun was against the clothing, not pressed against
the skin.

And he ultimately said that the medical evidence that he was presented is
consistent with George Zimmerman`s story. Injuries from his head,
according to Dr. DiMaio -- those injuries from Zimmerman`s head came from
some serious blows, perhaps concrete, he said. He also, as you indicated,
said there are at least six injuries -- there were at least six injuries to
George Zimmerman`s head.

Meanwhile, on cross-examination, Bernie De La Rionda, the attorney for the
state, in perhaps some of his most animated cross-examining so far in this
trial, did get -- did get the doctor to say that he could not testify as to
who started the fight, could not testify as to who threw the first punch,
also -- also couldn`t testify as to whether Trayvon Martin at any point
actually grabbed the gun, as has been said on the stand by a couple of
folks.

And he also did spend some time criticizing how the medical examiner
handled the clothes, as well.

So again, as you indicated, Dr. DiMaio, the star witness today, at least,
also, as you indicated, Mark O`Mara saying -- giving every impression that
the witness that we saw, the last witness that we saw, the neighbor, one of
George Zimmerman`s neighbors, Eloise Delaguard (ph), would be the last
witness for the defense.

Right now, inside that courtroom, they`re wrapping up a hearing, a hearing
that started this morning. And this is a hearing about whether this
specific animation is going to be admitted. The defense spent two hours
this morning arguing for this animation to be admitted into evidence. And
this is an animation that essentially depicts how the altercation started,
how the fight went down. And it is based largely on witness accounts,
defense witness accounts. It`s based on police reports, as well.

An earlier version of this animation actually showed Trayvon Martin on top,
punching George Zimmerman. The state argued successful to have that
portion of it tossed out. The animation, at this particular point, is
essentially a series of still photos. Nonetheless -- nonetheless, the
state says that the entire animation should not be allowed.

But again, going back to the timetable, Michael, at this particular point,
it appears as if -- "appears" being the operative word -- that the defense
could very well rest its case tomorrow and start closing arguments.

SMERCONISH: And Craig, last night, you broke news here when you told us
that there had been an effort by the defense, successful, to bring in
toxicology information.

MELVIN: Yes.

SMERCONISH: Interestingly, they got the green light, and at least today,
they didn`t do it.

MELVIN: Yes. You know what, Michael? That was -- that was quite
interesting, to say the least. Yesterday at about this time, after pretty
extensive petitioning by the defense to allow this toxicology report in,
this toxicology report that showed Trayvon Martin had a trace amount of
marijuana in his system -- they argued to have this toxicology report
admitted.

And for whatever reason, we got word today that the defense had decided
that they did not want to introduce that toxicology report. Just as
interesting, perhaps, Mike, no reason given other than to say, No, we`ve
just decided we don`t want to introduce it.

SMERCONISH: So it sounds as if, if they get the animation video in, that
could be the concluding bit of evidence put forth by the defense. If they
don`t get the animation in, then this may be at an end in terms of evidence
having been presented by the prosecution and the defense.

MELVIN: That is -- that`s spot on. Spot on. And this animation, again --
we thought the hearing to get this animation admitted that Judge Nelson
started at 8:30 this morning -- we expected it might take 30 minutes, it
might take an hour. But after, you know, 30 minutes went by, an hour went
by, an hour-and-a-half went by, it has become -- it`s become quite clear
that this particular animation is a cornerstone of the defense`s strategy.

This -- this particular animation -- we haven`t seen it, obviously. Judge
Nelson saw it this morning. The attorneys for the state saw it, as well.
Jurors obviously have not seen it. No one else in the courtroom saw it,
for that matter.

But is -- this particular animation, this is how they would like to end
their case to the jury.

SMERCONISH: Craig Melvin, thanks for your report, as always.

MELVIN: Thank you, sir.

SMERCONISH: For more on today`s testimony, I`m joined by MSNBC legal
analyst Lisa Bloom, former Florida circuit court judge Alex Ferrer, and
Paul Henderson, a veteran prosecutor.

Let`s take a look at how Dr. DiMaio describes where the gun was in relation
to Trayvon Martin`s body.

(BEGIN VIDEO CLIP)

DR. VINCENT DIMAIO, FORENSIC PATHOLOGIST, GUNSHOT WOUND EXPERT: It`s my
opinion that the muzzle of the gun in this case was two to four inches away
from the skin. So the barrel of the gun was against the clothing. The
muzzle of the gun was against the clothing. But the clothing itself had to
be two to four inches away from the body at the time Mr. Martin was shot.

(END VIDEO CLIP)

SMERCONISH: Now, according to DiMaio, that`s consistent with Zimmerman`s
account that Martin was over him at the time of the shooting.

(END VIDEO CLIP)

DIMAIO: If you lean over somebody, you will notice that the clothing tends
to fall away from the chest. If instead, you`re lying on your back and
somebody shoots you, the clothing is going to be against your chest. So
that the fact that we know the clothing was two to four inches away is
consistent with somebody leaning over the person doing the shooting.

(END VIDEO CLIP)

SMERCONISH: Lisa, I don`t know how it played in the courtroom, but I can
tell you that watching on television on MSNBC, I thought he was a pretty
effective witness for the defense. What was your reading of the tea
leaves?

LISA BLOOM, MSNBC LEGAL ANALYST: On style, he`s an A-plus. He speaks in
plain English. He`s very understandable. He`s completely the opposite of
Dr. Bao.

But I have a lot more questions for him because I think what he established
is that Trayvon Martin`s clothing was two to four inches away from his
body. He was not asked every possible explanation, like these are baggy
sweatshirts. You know, when he demonstrates right there in his

doesn`t really forward when he goes forward, and it stays against him when
he goes back. When you`re wearing a baggy sweatshirt, two of them, it`s a
completely different situation. Trayvon Martin`s shoulders could have been
hunched forward. That could have explained it. He couldn`t have been
down, and in the scuffle, the clothing bunched.

I mean, really, what he established was the clothing was -- two inches is
not very much -- two to four inches away from Trayvon`s body at the time
that he was shot. That does not prove that Trayvon Martin was on top. It
is consistent with that theory, but it does not prove it.

SMERCONISH: Judge Alex, you told us last night on HARDBALL that this was
going to be an important witness for the defense. How do you think he
played?

ALEX FERRER, FMR. FLORIDA DISTRICT COURT JUDGE: Oh, I think he played
amazingly. I mean, this is the kind of medical examiner testimony you
want. The prosecution didn`t get it. The defense did.

I disagree, I think it does establish -- I mean, when you think about the
other evidence, the grass stains and the wet back that George Zimmerman
had, the grass stains on the knees of Trayvon Martin, John Good, who
described that Zimmerman was on the bottom and Trayvon on top, and then you
add this medical examiner that gives the scientific angle, on top of which
we know that he had that bottle of the drink in his pocket, which would add
weight to pull it over, to pull it down -- in addition to that, he scored
points on the -- the -- the key point, I thought, that was a question in
everybody`s mind -- he pointed out that you probably would not -- or you
don`t necessarily have bruising on knuckles from hitting somebody, but
especially when you`ve lost blood pressure.

When he was shot in the heart, his blood pressure dropped. And he said,
basically, that you need blood pressure for blood to get pumped to that
area for bruises to start. And he said you never -- you never see bruising
on people who`ve been killed.

SMERCONISH: In other words, people have been asking, and I think it`s a
great question, where is the bruising on Trayvon Martin`s hands if, in
fact, he was administering this MMA-style beating to George Zimmerman? Dr.
DiMaio said, essentially, in lay terms, Well, the blood flow would have
ended, and consequently, that would explain the lack of bruising.

Paul, let me ask you this. Another important point for the defense that
DiMaio made today was that it was possible to sustain head trauma without
leaving a major visible mark.

Take a look at this exchange between DiMaio and defense attorney Don West
about the visible wounds on Zimmerman`s head.

PAUL HENDERSON, FORMER PROSECUTOR: Yes.

(BEGIN VIDEO CLIP)

DON WEST, ZIMMERMAN`S DEFENSE ATTORNEY: So the presence of the injury on
the outside, are you saying, doesn`t necessarily mean there was additional
impact or that the impact itself was minor?

DIMAIO: OK, what I`m saying is, is that you can get severe head trauma,
but actually, without any marks on the head. Or you can get marks,
lacerations and contusions, and have had trauma. They`re not necessarily -
- you know, more commonly, when you get severe head trauma, you have some
injury to the scalp. But you can get severe head trauma without a mark on
the scalp, too.

(END VIDEO CLIP)

SMERCONISH: Paul Henderson, that head trauma, those wounds on the back of
George Zimmerman`s head, a very important aspect of this case -- how do you
interpret that testimony?

HENDERSON: Look, I -- it still didn`t get me to interpreting that at the
end of the day, that he was he`s facing a deadly injury. It still looks de
minimus injuries to me, and just scrapes and some little bruising there.

I don`t feel like the testimony, as good as it was, moved the jury beyond
an explanation that put Zimmerman in fear of his life because of the
injuries. I know that that was (ph) the purpose of trying to get him to
address that, but it didn`t feel like it to me, that his explanation that
that was possible is translating to that`s what happened.

SMERCONISH: You are the prosecutor among us, the former prosecutor among
us. So I want to ask you about this. On cross-examination, prosecutor
Bernie De La Rionda tried to play down the significance of what Dr. DiMaio
had testified. Here it is.

(BEGIN VIDEO CLIP)

BERNIE DE LA RIONDA, PROSECUTOR: You can`t testify as to who threw the
first punch.

DIMAIO: That`s correct, sir.

DE LA RIONDA: In fact, you can`t really testify whether there was a first
punch throwing.

DIMAIO: That`s correct, sir.

DE LA RIONDA: And you can`t say whether it was Trayvon Martin defending
himself or George Zimmerman defending himself, in terms of when this first
started.

DIMAIO: When it first started, that`s correct, sir.

(END VIDEO CLIP)

SMERCONISH: So Paul Henderson, he could not establish, could not offer
expert testimony as to whom the initiator was, but he did offer some pretty
compelling testimony in terms of how the final act was committed. Do you
disagree with that?

HENDERSON: I don`t disagree, but I think -- look, this was a very good
witness for the defense. And he was very credible and informative. It
almost felt like a class in forensics when he was explaining his thoughts
and his ideas about what he knew. And it was quiet in the courtroom.
Everyone was paying attention.

I felt like the prosecution did an outstanding job of standing up and
getting that same witness to admit that he had no information and was not
giving an opinion about the issues in contention and the different versions
of the story that Zimmerman had as it related to the fight.

He also got him to admit that he did not talk about and could not talk
about who may have initiated the fight. And then, finally, the third thing
that they did that I thought was good with this witness, from the
prosecution`s perspective, was to get him to admit that he relied on his
opinion based on their previous witnesses` report.

And so I think that`s what you have to do with an expert like this, that
comes across so credibly. You have to put him in a box and make sure that
the jury understands that his credibility is only limited to a very small
part of this picture.

SMERCONISH: Judge Alex, do you give the prosecution the high marks that
Paul Henderson is for doing what they were able to do with Dr. DiMaio?

FERRER: No, not even close. I mean, honestly, the prosecution stood up
there and said, You can`t say who threw the first punch. Sadly, that`s not
the defense`s burden. That`s the prosecution`s burden. They can`t say who
threw the first punch. The only evidence they have of who threw the first
punch is George Zimmerman saying Trayvon threw the first punch.

So the prosecution gets up after he -- after the doctor testifies about
Trayvon`s being on top as consistent, and the prosecution gets up and says,
Well, it would be consistent with Trayvon standing up and Zimmerman
standing up and Zimmerman shooting him, and the doctor points out, No,
that`s not true. The clothes would be hanging down, and it would not be
consistent.

Immediately, the prosecution says, Well, it then would be consistent with
Trayvon backing away, like stopping the confrontation. And the message I
think that sends to the jury is, We the prosecutors are willing to throw
out there any theory that may stick here. But that`s not what they`re
supposed to do. They`re supposed to have a theory, and they don`t.

And that is the big problem with this case. The defense has a theory that
is being supported by forensic evidence, and the prosecution is in the role
THAT the defense is usually in, trying to throw up stuff and make it stick.

SMERCONISH: Thank you, Lisa Bloom. Thank you, Alex Ferrer. Thank you,
Paul Henderson, as well.

Coming up: Republican opponents of abortion are changing tactics. They`ve
moved from trying to make abortion illegal to trying to make it
unavailable. The latest fronts in this war -- Texas, North Carolina and
Wisconsin. But supporters are fighting back.

Plus, we now know how Osama bin Laden lived and escaped capture for so long
while hiding in Pakistan. A new inside report on the decade leading up to
"Zero Dark Thirty."

Also, there was a time when a sex scandal would kill a political career.
Not anymore. Just as Mark Sanford, David Vitter, Anthony Weiner and now
maybe Eliot Spitzer.

And "Let Me Finish" tonight with the case, yes, for legalized prostitution.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Democrat Cory Booker seems to be cruising toward that open New
Jersey Senate seat. Let`s check the HARDBALL "Scoreboard."

According to a new Quinnipiac poll, the Newark mayor leads the field with
support from 52 percent of New Jersey Democratic voters. He`s got a 5 to 1
lead over his closest rivals, Congressmen Frank Pallone and Rush Holt. And
in a general election matchup against the leading Republican, Booker is
leading again by a wide margin.

We`ll be right back.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL. The state capitol of Texas has
become ground zero in the abortion debate. Today is day two of a special
session of the Texas legislature where a bill on the fast track that would
make abortions illegal after 20 weeks, require abortion facilities to
upgrade to ambulatory surgical centers, and require abortion clinic doctors
to gain admitting privileges at a hospital within 30 miles. The net
effect, the state of Texas would be left with just five clinics that could
provide abortion services.

Not surprisingly, Austin has become a magnet for politicians who oppose a
woman`s right to choose an abortion. Last night, former Arkansas governor
and presidential candidate Mike Huckabee spoke out.

(BEGIN VIDEO CLIP)

MIKE HUCKABEE (R), FMR. ARKANSAS GOVERNOR: No such thing as a life that is
so insignificant, so worthless, so unwanted, so unnecessary that any of us
would choose and believe that we are so God-like that we would singularly
have the right to extinguish that which God created!

(END VIDEO CLIP)

SMERCONISH: Today former Pennsylvania senator and presidential candidate
Rick Santorum announced via press release from his PAC that he, too, will
be in Austin on Thursday to show his support for the Texas abortion bill.

And Texas isn`t the only place the abortion rights fight is being fought.
Last week, the North Carolina state senate approved abortion restrictions
that could leave the state with just one abortion clinic.

Yesterday in the state capitol, 64 people protesting the restrictions were
arrested.

In Wisconsin, Governor Scott Walker signed legislation limited abortion
access in his state on Friday, but by last night, a federal judge had
granted a temporary restraining order on that law.

This map shows the states where new abortion restrictions are being
proposed which, in various ways, would make it harder for a woman seeking
an abortion to access one.

Ilyse Hogue is the president of NARAL Pro-Choice America. Sylvia Garcia is
a Democratic state senator from Texas.

Senator Garcia, let me begin with you.

I don`t get it. My reading of Roe v. Wade says that the standard is set
based on viability. At 20 weeks, we`re not talking viability. It would
seem that, on its face, this bill would be unconstitutional. So, why go
through all the effort if that`s, in fact, going to be the holding of a
court someday?

SYLVIA GARCIA (D), TEXAS STATE SENATOR: Well, we have actually been asking
ourselves that same question here in Texas.

I agree with you. I think on its face it appears that it would be
unconstitutional, but, ultimately, of course, it will be up to the courts
to decide. As we -- as you stated earlier, Wisconsin yesterday, of course,
a federal court there has already put an injunction on implementation of
their action.

So I think the same thing will happen here in Texas. I think we`re on a
path to litigation in the courts, ultimately, with this bill if it passes.

SMERCONISH: Ilyse, it seems to me you may as well say, well, one week
after conception, we`re going to ban all abortion because that would have
the same constitutional standard as would the 20-week measure.

ILYSE HOGUE, PRESIDENT, NARAL PRO-CHOICE AMERICA: Well, I actually think
that that is the goal of these radical ideologues who are driving this
legislation and their politician friends in these statehouses.

Their goal has remained the same. That`s to outlaw abortion, as well as
limit women`s other reproductive choices. What`s more interesting is how
they`re resorting to doing it. These politicians in Texas and North
Carolina, and I`m from Texas as well, know that they don`t have popular
support on their side, and so they`re resorting to cheating, changing the
rules, doing these things under the dark of night because they know that
there is a political price to pay.

There is a health price to pay, there is a political price to pay, there is
a financial price to pay when these things go to court, and yet, they are
so beholden to their days to their extreme base that they`re driving this
out-of-step agenda anyway.

SMERCONISH: Senator Garcia, to what do you attribute the activity not only
in the Lone Star State, but in all those states that I referenced in
introducing this conversation? Do you attribute it to a reading, perhaps a
misreading, of what that Gosnell trial in my hometown of Philadelphia was
all about?

GARCIA: Well, I think what -- to me it seems to be sort of an agenda
nationally by -- by -- by, as was stated earlier, the radical right, the
extremists who just want to make it harder and harder for women to have
access to reproductive health care, to have any kind of real access to
health care generally.

I think that it`s part of a national agenda, and they`re trying to chip
away. And I totally agree. I think it`s just a backdoor way to try to ban
all abortions in this country.

SMERCONISH: I`m wondering if there is a strategy that`s now going to be
employed by pro-choice forces of getting women who have had abortions to
tell their stories, almost in the same way that when people recognized
individuals within their family or their social orbit who were homosexual
of lesbian, all of a sudden, it opened an awareness that people previously
had not had.

Ilyse, is that a strategy? I`m thinking in part of an op-ed that I read in
"The New York Times" over the weekend where a woman wrote very effectively
about her mother having had about abortion.

HOGUE: I think it`s not so much a strategy as a reality.

Look, women who have had abortions are our daughters, our mothers, our
sisters, our friends. They`re everywhere. It`s one in three American
women, and so we are all around. It`s also important to recognize that we
have got to take away the shame. The shame doesn`t start and end with
abortion, but it`s very acute there.

Women are ashamed for exercising their reproductive rights. They`re
ashamed when they`re raped, as we saw in Steubenville, and this is part of
an anti-woman agenda that wants to make us ashamed of being real woman
leading real lives today, and I think women have had enough. I think that
is what we`re seeing in Texas, in North Carolina and all around this
country.

We`re getting calls from national members everywhere saying, what can I do?
This is it. This is enough. We will support Texas, we will support North
Carolina, but we will get these folks out of office who are driving these
extreme policies that are bad for women, bad for our families.

SMERCONISH: Ilyse Hogue, thank you very much.

State Senator Sylvia Garcia, we appreciate your being here.

Up next, last night on HARDBALL, Eliot Spitzer told me he`s used to being
the butt of jokes. And now that he`s running, well, here comes some more.

And a reminder. You can listen to my radio program every weekday mornings
at 9:00 Eastern on SiriusXM`s POTUS Channel 124.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Back to HARDBALL. Now to the "Sideshow."

Call it a coincidence, but Eliot Spitzer`s entry into New York City`s
comptroller race means that he joins a field of candidates that includes
Kristin Davis, a woman who ran a prostitution ring implicated in the very
same 2008 investigation.

The self-described "Manhattan Madam" who has received the nomination of the
Libertarian Party is already running a no-holds-barred campaign. And
judging by her long shot run for governor in 2010, she won`t shy away from
her controversial past.

Here`s a taste of her more colorful sound bites from that race.

(BEGIN VIDEO CLIP)

KRISTIN DAVIS, NEW YORK COMPTROLLER CANDIDATE: The key difference between
the MTA and my former escort agency is that I operated one set of books,
and my former agency delivered on-time and reliable service.

(LAUGHTER)

DAVIS: The career politicians in Albany are the biggest whores in this
state. I might be the only person sitting on this stage with the right
experience to deal with them.

(END VIDEO CLIP)

SMERCONISH: New Yorkers are forgiving, but with Davis around to remind
them of Spitzer`s past, it may be harder for them to forget.

Here was Jay Leno`s take on Spitzer vs. Davis on "The Tonight Show" last
night.

(BEGIN VIDEO CLIP, "THE TONIGHT SHOW WITH JAY LENO")

JAY LENO, HOST, "THE TONIGHT SHOW WITH JAY LENO": There`s a tough choice
for the voters, huh?

(LAUGHTER)

LENO: I mean, one of involved is the most degrading profession of all
time, and the other ran a whorehouse. I mean, geez.

(LAUGHTER)

(END VIDEO CLIP)

(LAUGHTER)

SMERCONISH: Of course, Leno isn`t the first to equate politics with
prostitution.

Ronald Reagan famously remarked that -- quote -- "Politics is supposed to
be the second oldest profession. I have come to realize that it bears a
very close resemblance to the first."

Next up: It`s American history through beer goggle lenses. There is a
series premiering on Comedy Central tonight about American history, but
with a new spin that will surely appeal to the college fraternity
demographic. It`s called "Drunk History," and it illustrates America`s
storied past through the account of an inebriated narrator whose impaired
mental and motor functions often blur between fact and fabrication.

Here`s their version of the Lincoln assassination.

(BEGIN VIDEO CLIP, "DRUNK HISTORY")

UNIDENTIFIED ACTOR: John Wilkes Booth comes into their box and shoots
Lincoln in the head. After he shot Lincoln, he jumped from the balcony,
breaking his ankle.

UNIDENTIFIED ACTOR: Ow. Ow. Ow. Ow. Ow. Ow. Ow. Ow.

UNIDENTIFIED ACTOR: And raising his knife in the air, he said, that
pluribus Unum. I don`t remember. (EXPLETIVE DELETED) I wish I remembered.
Wait. Wait. Thick (INAUDIBLE) tempest.

No more tyranny, you know, basically.

(END VIDEO CLIP)

SMERCONISH: What will they think of next?

Up next, with Mark Sanford in Congress, Anthony Weiner at or near the top
of the polls in New York, and now Eliot Spitzer making a comeback, is sex
dead as a political career killer?

You`re watching HARDBALL, the place for politics.

(COMMERCIAL BREAK)

JANE WELLS, CNBC CORRESPONDENT: I`m Jane Wells with your CNBC "Market
Wrap."

Stocks up on Wall Street today. The Dow gained 75. The S&P 500 rose 11
and the Nasdaq added 19. However, confidence among small business owners
took a hit in June, down from its one-year high in May, weak sales playing
a key role there. And Barnes & Noble shares are up after announcing late
yesterday that CEO William Lynch is stepping down. His resignation comes
after a devastating earnings report and big losses in the company`s Nook e-
reading division.

That`s it`s from CNBC, first in business worldwide -- now back to HARDBALL.

(BEGIN VIDEO CLIP)

GARY HART, FORMER PRESIDENTIAL CANDIDATE: I refuse to submit my family and
my friends and innocent people and myself to further rumors and gossip.

It`s simply an intolerable situation. I believe I would have been a
successful candidate, and I know I could have been a very good president,
particularly for these times. But, apparently, now we will never know.

(END VIDEO CLIP)

SMERCONISH: Welcome back to HARDBALL.

That was Gary Hart in 1987 after a sex scandal derailed his campaign for
president, but now the political sex scandal may not be the career ender
that it was for Hart. Take some recent examples.

In the summer of 2007, Senator Larry Craig was arrested at the Minneapolis
Airport and he was accused of soliciting sex from an undercover male police
officer. Craig pled guilty to a misdemeanor of disorderly conduct and
served out the remainder of his Senate term. That same summer, his
Republican colleague Louisiana Senator David Vitter was caught in a scandal
involving prostitutes when his phone number was published by the notorious
D.C. madam.

Vitter stood with his wife and asked for public forgiveness. He remained
in office and then won reelection in 2010 with 57 percent of the vote.
This spring, Mark Sanford, the disgraced former governor of South Carolina
who left the state on taxpayer funds to travel to Argentina to visit his
mistress in 2009, won election to the House.

Former Congressman Anthony Weiner resigned Congress in 2011 after tweeting
pictures of his genitals to female followers. Two years later, Weiner now
finds himself tied for leading the race for mayor of New York City. And
now former Governor Eliot Spitzer, who appeared with me on this program
last night, is launching what he hopes will become a second political act
and seeking the public forgiveness for his transgressions with prostitutes.

So, are sex scandals no longer career killers for politicians?

I`m joined by "The Washington Post"`s Chris Cillizza and former RNC
Chairman Michael Steele.

Michael, what`s your answer to that question?

MICHAEL STEELE, MSNBC POLITICAL ANALYST: Well, a good sex scandal isn`t
what it used to be, that`s for sure.

(LAUGHTER)

STEELE: It shows the timeline, the arc of time and how it`s changed from
the days of Bill Clinton and Gary Hart to right now, where these things
aren`t as devastating.

The bottom line is, politicians today have figured out how to apologize.
They figured out how to go for that sort of kumbaya, gee, I`m sorry, won`t
you give me another try kind of approach, vs. what you saw with both
Clinton and Gary Hart, which started off really defiant, really kind of
pushing back against the public, really kind of saying, I`m bigger than
this and you can`t touch me.

Now humble is the meal of the day for a lot of these politicians caught in
this kind of scandal.

SMERCONISH: But, Michael, Michael, is it that they have -- is it that they
have figured out how to apologize or is it that the public came to some
recognition or realization, maybe based on Clinton, among others, to say,
you know, even if the guy is screwing around in his personal life, I just
want him to make the trains run on time?

STEELE: Well, you know, you know, hard times will do that. Hard times
will take your attention away from those types of things that at the end of
the day really don`t matter.

And you want to know whether or not you`re getting the trains to run on
time and you`re getting the job done. I think there is some truth to that,
Michael, that there is sort of a peeling away from sort of the puritanical
approach that we tend to have in our politics, and certainly lifting these
guys up above us on that pedestal to recognize, at the end of the day, if
you have got the trains running, what you do in your bedroom and what you
do on your own time is your business. It`s sort of a slippery slope for a
lot of voters now.

SMERCONISH: Chris Cillizza, have politics changed or has our culture
changed?

CHRIS CILLIZZA, MSNBC POLITICAL ANALYST: I think -- let me take a third
way, in honor of Bill Clinton, Michael.

I will say I think that the way we perceive our politics has changed. I
would actually argue that the American public now -- and this is relatively
new in terms of how negatively they view politicians. It`s incredibly
negatively, Congress, virtually every institution.

So I think there is sort of a sense, I guess, among the electorate that,
well, all these guys and gals are bad, right, this sort of broad sense.

SMERCONISH: Right.

CILLIZZA: And so they think, well, at least this guy kind of owned up to
it.

And now we know -- this is the key to the political comeback. And Sanford
used it really well. Now we know he or she isn`t beholden to anyone. The
establishment, which, by the way, the public hates -- the establishment
doesn`t want this guy or woman to run, but now they`re running.

And because of the thing that happened to them and they were forced to sort
of be humbled, now they`re sort of the last honest person. Everybody is
flawed, but they have been flawed in public, and now they don`t owe anybody
anything.

If you go and watch the campaign Mark Sanford ran, that was -- what it was
entirely about, look, I have been an outsider all my life. All these
people are lining up against me, but I`m the guy telling you the truth.

It`s a fascinating sort of psychological experiment.

SMERCONISH: You know, Gary Hart was a path creator, Bill Clinton in the
same respect.

Look at these amazing numbers. Through what many considered to be the
worst days of his presidency, Bill Clinton received high marks from the
public when this came to his overall job performance, despite what they may
have thought about his personal behavior.

For example, March of `98, six weeks after Clinton famously denied -- quote
-- "having sex with that woman, Ms. Lewinsky," he stood at 66 percent job
approval, according to NBC/"Wall Street Journal" poll. Three days after
Clinton told the nation that he had in fact lied about his relationship
with Lewinsky, he held a 69 percent job approval rating.

On the day the U.S. House of Representatives voted to impeach President
Clinton, his job approval, 62 percent, and five weeks after being acquitted
with perjury and obstruction of justice charges by the Senate, he now had a
66 percent approval rating. Just before leaving office in 2001, he
maintained a job performance approval of 66 percent.

Just to give everybody an idea of how high those numbers are, President
Obama`s current job approval stands at 48 percent approval, 47 percent
disapproval, according to the latest NBC News/"Wall Street Journal" poll
from June of 2013.

So, Michael Steele, based on that data, maybe we should not be surprised
that in the last decade or so, there have been a number of resurrections
after political escapades that involve sex.

MICHAEL STEELE, MSNBC POLITICAL ANALYST: Well, that`s true, and I think it
begs the question that, you know, the classic religious questions, is it
faith or good works that gets you into heaven? Or is it the faith that the
voters have in you or the good works you do that keep you in their good
stead?

And I would submit if you look at the economy, what the president was
pursuing welfare reform and the other agenda items while this was going on,
people latched onto that. People had greater faith in that, in his ability
to get it done, to do the good work, and that helped push those numbers up.

When Bill Clinton came out of the gates, Michael, you know, belligerent,
wagging his finger and pushing back against the voters, that`s when the
numbers showed the photos were like, you know what, you may be protesting a
little too much and I`m suspicious, but when he got to work, he put his
head down and focused on the mea culpa opportunity, and in combination with
the good works, the voters responded.

SMERCONISH: Hey, Chris Cillizza, I think Eliot Spitzer is smart to go
running for comptroller. I think that shows penitence on his part. He`s
not running for mayor. I mean, he was the chief executive of the Empire
State. He`s running essentially for a row office in New York City.

Can he win this thing?

CHRIS CILLIZZA, THE WASHINGTON POST: Right.

Yes. I mean, I honestly think one of his biggest challenges at this point,
Michael, is he`s got to get almost 4,000 signatures by later this week,
which is not easy. You know, if he gets -- he has two things going for
him. Everyone knows his name, which in down ballot races anywhere that
matters and helps you, even if people know your name for not the greatest
reasons.

And number two, don`t forget -- very personally, he has a tremendous amount
of personal wealth, can fund the campaign says he`s going outside public
financing. So, if he qualifies for the ballot and that`s an "if" that I
think people should pay attention to, it`s not a sure thing. I think he`s
got a 50-50 chance.

I agree with you, by the way. We like second chances in this country.

SMERCONISH: Right, we love that.

CILLIZZA: Look at Josh Hamilton in baseball. But you have to humble
yourself first, and this is Spitzer humbling himself saying, I don`t want
to be mayor.

SMERCONISH: Tearing you down and building you back.

Chris Cillizza as always, thank you.

CILLIZZA: Thank you.

SMERCONISH: Michael Steele, good to see you.

STEELE: Good to see you, Mike.

SMERCONISH: Up next, we`ve got the inside report from Pakistan on how
Osama bin Laden managed to escape capture for so long. That`s ahead.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: When it comes to where Americans get their news, TV is still
king. A new Gallup poll finds 51 percent of Americans get their news about
current events from television, 21 percent say the Internet is their
primary news source, 9 percent say newspaper, and 6 percent say radio.

We`ll be right back.

(COMMERCIAL BREAK)

SMERCONISH: We`re back.

An exhaustive bin Laden report compiled by a panel of Pakistani officials
and then kept secret by the government has been exposed. The 300-plus page
document contains a remarkably detailed account of bin Laden`s life after
9/11 when he sought and found refuge in Pakistan.

It also chronicles an astounding level of incompetence on behalf of
government officials who allowed the criminal mastermind to live undetected
in their country for nine years. And then to top it all off, failed to
respond to a U.S. raid on its own soil that killed him. The report calls
it a case of government implosion syndrome -- to put it mildly -- exposed
by journalists at al Jazeera.

It also gives us a fascinating account of how bin Laden lived in secret for
all those years. For instance, to avoid detection, he at one point shaved
off his world famous beard. He bought his compound using a fake national
ID card, and occupants paid no taxes.

When venturing outside, he liked to wear a wide-brimmed cowboy hat to avoid
aerial detection, a tidbit that London`s "Daily Mail" had some fun with to
create this PhotoShopped depiction of bin Laden in a Stetson, a black one,
of course. His wife even posed as a deaf mute when she went to the
hospital to deliver their children.

For more, let`s bring in MSNBC terrorism analyst Roger Cressey, who is a
counterterrorism official in the White House, and Philip Mudd, whose
intelligence career spans decade was both the FBI and the CIA.

Philip, we have always wanted to know were the Pakistanis complicit? If
you buy their own report, their own investigation, the answer is no.

PHILLIP MUDD, NEW AMERICA FOUDNATION: I don`t think they were. Look,
there is a difference between Hollywood and reality. People want to build
complicated complicity stories. Somebody must have known if he had been
there for nine years. The reality as we saw in this leaked report is that
incompetence was the explanation for why he went free, not some vast
conspiracy theory that we`d see in the movies.

SMERCONISH: Roger, the report seemed like a blazing indictment of the
Pakistanis. I guess the distressing aspect is left to their own devices,
that great investigation would have stayed secret but for al Jazeera
bringing it to light.

MICHAEL CRESSEY, MSNBC TERRORISM ANALYST: Exactly right, Michael. And for
good reason, because ISI, the military, and even the upper reaches of the
Pakistani government would not want this report to be read by the Pakistani
people because the indictment that it portrays on how the government
doesn`t work.

I mean, you had fundamental mistakes and just dysfunction at every single
level within the Pakistani government over an extended period of years.
And any Pakistani citizen that read that, frankly, would not be in the
interest of the Pakistani government for them to do that.

SMERCONISH: Phillip, we lost him at Tora Bora in December of `01 and,
then, of course, he reemerges at Abbottabad.

Let`s take a look at bin Laden`s movements within Pakistan. According to
the report, he reached the country in mid-2002 after being flushed out of
Afghanistan. Then he traveled throughout northwest Pakistan for several
years around the Swat Valley and travelled to Haripur, which is less than
50 miles from the capital. And then, finally, in `05, he moved his
extended family to Abbottabad, where he remained until the 2011 raid.

Does this come as news do you think to U.S. sources that we`re trying to
smoke him out? In other words, are there surprises in that? We always
expected he would be in the tribal areas.

MUDD: I think that`s right. I think the surprise here is in effect the
Pakistani military and counterinsurgency operations kept bin Laden out of
the tribal areas. I think he thought the tribal areas were too hot because
military and drone activity was too extensive. So, he chose to go in areas
that turned out in some ways to be riskier -- that is what we call cities
or settled areas which is eventually where he was killed.

SMERCONISH: The report had some very harsh words for the government and
the military for missing bin Laden since he was in hiding in plain sight,
about a half mile from Pakistani`s equivalent of West Point. For example,
the report says, "How the entire neighborhood, local officials, police and
security and intelligence officials all missed the size, the strange shape,
the barbed wire, the lack of cars and visitors begs belief." It also --
beggars belief, pardon me.

It also says, "The bin Laden house was enumerated in a government house
survey with the comments that it, quote, `was uninhabited since August of
`05`. There were never less than 5 people living in it. The extent of
incompetence to put it mildly was astounding if not unbelievable."

Roger, the Pakistanis didn`t want those revelations coming to light.

CRESSEY: Yes, for very clear reasons because your jaw drops when you read
this text and you realize the extent of incompetence on the part of the
Pakistani at the state and local level. But what bin Laden did to a
certain degree was he practiced good op sec, good operational security. He
maintained a very small security footprint, he relied on his family for a
lot of different things.

That all said, when he moved into the complex in Abbottabad, the fact it
did not trigger anybody to say anything to anybody in office is the real
big question. I believe it also reflects a cultural issue, which is there
are a lot of folks on the street who saw something out of the ordinary.
They weren`t -- they weren`t trained. They weren`t prepared to go to talk
to people.

So that`s one of the reasons why he was able to live there so successfully
for so long.

SMERCONISH: You know, if it weren`t so serious, Phillip, it would almost
be an "SNL" ski. Apparently, there`s an automobile stopped, bin Laden`s in
the car. Somehow, the driver negotiates with whom made the stop and he
gets off where, perhaps, we would have had him.

MUDD: You know, I think we have to recognize two things here. First, I`ve
been to Pakistan. Many of my colleagues has.

This is not the United States. It`s a chaotic third world country where
the state apparatus is not as pervasive, not as effective as what you`re
going to find in Washington, D.C., or New York.

The second and final thing is, let`s give the Pakistanis just a bit of
credit. They`re not a great intelligence service. But in terms of putting
the military and paramilitary forces in Pakistan up in the tribal areas, in
a civil war in Pakistan that`s now a decade long, losing thousands of their
own people, they`ve shed a lot of blood in this fight. So, we might
ridicule them for mistakes in this report, but they`ve also been in other
respects in this fight with us.

SMERCONISH: I was thinking that Pervez Musharraf will probably be thrilled
to see the result because so many have believed or suspected that perhaps
he had some awareness.

Thank you, Roger Cressey. Thank you, Phillip Mudd.

MUDD: Sure.

SMERCONISH: When I return, let me finish with case for legalized
prostitution.

You`re watching HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Let me finish tonight with this:

Yesterday, Eliot Spitzer was my guest right here. I told him that when he
cheated on his wife with a hooker, his wife should have thrown his clothes
into Central Park.

But as far as the public was concerned, it was really none of our business.
He violated the law. That wasn`t right. But we should have an adult
conversation about the laws that he violated.

I would argue that it`s time to bring the world`s oldest profession above
board in communities willing to allow it, clean up the trade, clamp down on
exploitation. Let government share in the revenue, but otherwise, stay out
of the private affairs of consenting adults. Beyond the role of the tax
man, prostitution doesn`t warrant the involvement of federal authorities.

Instructive to me has always been the way in which Spitzer was caught.
Since September 11th, the financial world has been required to alert the
feds when evidence arises of conduct that could be linked to terrorism.
Spitzer`s suspicious money transfers were the thread that led to his
discovery. Some functionary or other recognized this was a case of
titillation, not terrorism, and yet nevertheless committed the resources
that brought about Spitzer`s public crash. What a waste of time, expertise
and the people`s money.

Alan Dershowitz once taught Eliot Spitzer at Harvard Law, and Spitzer
worked for him as a research assistant on the Claus von Bulow case. With
regard to the investigation, Dershowitz once told me, quote, "They used
5,000 wiretaps. They intercepted 6,000 e-mails. Every hour spent on going
after prostitution is an hour that could have been spent on going after
terrorists and going after people who victimize", which is not to say that
Spitzer shouldn`t have emerged from his escapades unscathed, but the
discipline should have meted out in a case like this should have come from
within his own family.

There`s another argument in support of legalizing prostitution. Some among
us are never going to find companionship for a variety of reasons. And
their solitary existence is accentuated by the constant barrage of sexual
stimulation that we see every day on television, in billboards, in our
mailboxes, and in the form of fashion catalogs. It can`t be healthy for
some people to feel the amassed pressure of such images and have their
personal expectations go unfulfilled.

Yesterday, when I asked Spitzer whether he believed we should legalize
prostitution, he demurred. I won`t, we should.

That`s HARDBALL for now. Thanks for being with us.

"ALL IN WITH CHRIS HAYES" starts right now.

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