updated 7/15/2005 11:27:06 AM ET 2005-07-15T15:27:06

Guest: Dick Sauber, Bruce Sanford, Mark Pryor, Ben Ginsberg, Steve

McMahon, Thomas Oliphant, Stephen Hayes

DAVID GREGORY, MSNBC CORRESPONDENT:  Feeling the heat, Karl Rove is still at the heart of the CIA leak investigation.  But today, President Bush made a big show of his support for his top deputy for the cameras.  Let's play HARDBALL.

Hi everybody.  I'm David Gregory in tonight for Chris Matthews.  As the White House finds itself at the center of a political fire storm over Karl Rove, information from Joe Wilson's own book suggests that the leaking of his wife's identity as a CIA officer may not in fact have violated the law.  Bruce Sanford is a first amendment attorney who helped craft the law in question, the Intelligence Identities Protection Act of 1982.  We begin with Dick Sauber a former Justice Department official and attorney for “Time” magazine reporter Matt Cooper who testified before the grand jury on Wednesday about his conversation with Karl Rove regarding Joe Wilson and his wife.  Dick, let me start by saying, there may be limits to what you can say about Matt Cooper's testimony.  But what can you say about what he told the grand jury?

DICK SAUBER, ATTORNEY FOR MATT COOPER:  Well, as Matt said when he came out of the grand jury, he testified for about 2 ½ hours.  He answered all the questions completely and truthfully.  And discussed his conversation with his source, with the grand jury.

GREGORY:  That was Karl Rove we know by now.

SAUBER:  That was Karl Rove, yes.

GREGORY:  And what was the nature of the questions and what can we glean from that?

SAUBER:  I don't think I'm willing to talk about the nature of the questions and what Matt said in the grand jury.  I can tell you that he testified completely.  He answered all the questions.  It was very straightforward.  And it matched what he had written in his story that he published now almost two years ago.

GREGORY:  Did Karl Rove ever use the name Valerie Plame in his conversation with matt?

SAUBER:  I don't want to get into precisely what Mr. Rove told Matt, but I do think that the article Matt wrote accurately reflects precisely what Mr. Rove told him.

GREGORY:  Let me ask you about the question of confidentiality and who exactly and what exactly Matt Cooper was protecting.  He made a point of saying at the important hearing where Judy Miller went to jail and he did not by saying that warning, he was given a personal waiver from his source.  Now we know it is Karl Rove.  That he could go ahead and testify.  And yet, it gave the appearance that in fact, Karl Rove called him on the phone and said go ahead and testify.  That's not really how it happened, is it?

SAUBER:  No it isn't.  That really is not what he said.  It's not what he men to imply and I think it is very simple what happened.  All through this process, I advised Matt not to speak directly to his source.  Because it was grand jury investigation.  And I did not want one grand jury witness talking to another grand jury witness about this.

GREGORY:  Karl Rove has testified three time.

SAUBER:  Apparently so.  I don't know that for a fact.  Matt felt that the general waiver which apparently Mr. Rove had signed was not sufficient to release him, Matt, from his pledge of confidentiality to his source.  And Matt said all along, that he needed a direct personal release from his source before he would even consider testifying.  So when he used the word personal, it meant that Karl Rove had to say to him, in no uncertain terms, that he, Mr. Rove, released Matt Cooper from any claim of confidentiality that they had exchanged between them owe the substance of their discussion.

GREGORY:  One of the other issues that's being brought up is whether or not Cooper used this information correctly from Karl Rove.  I mean, Cooper writes double super secret background in the email that was the substance of the questioning in the grand jury.  That's been made public.  That particular email.  What did that mean to Matt?  Double secret super background.

SAUBER:  Well, let me address your first question.  Matt's testimony was consistent with what he wrote in the article and I think that when all the facts come out, and Matt may write about it in this week's “Time” magazine.  When all the facts come out, it will be clear that Matt's article is fully supported by the contemporaneous documentation that was written down at the time he had his conversation with Mr. Rove.  There's nothing left out of any significance.  There's nothing added of any significance.  Matt's article will be shown to be precisely accurate.

GREGORY:  Let me, I want to bring in Bruce, but before I do that, if Karl Rove was essentially speaking on deep background.  Not for any sort of attribution, is it fair to say he didn't have any desire or intention to blow Valerie Plame's cover?  Because he was just trying to provide some context to Cooper.  And did Matt use that information inappropriately?

SAUBER:  Well, I'm not an expert into the various, in the various ways in which reporters and sources indicate to each other how information can be used.  All I know is that Matt was under the impression that he could use without directly citing Mr. Rove personally, he could use the information.  I think his use of it was entirely appropriate and he stands behind his protection for the last two years of a source that asked him not to identify him personally.

GREGORY:  Let me bring in Bruce Sanford.  As I mentioned before, Bruce, you were involve in writing the statute in question which is in layman's terms, revealing a covert officer and that if somebody does that, that is a crime.  I've read that statute.  It is pretty complex.  You have to know the person is covert and you have to intentionally disclose that.  Was a crime committed in this case?

BRUCE SANFORD, ATTORNEY:  No.  I think the statute is a poor basis for a leak investigation.  It is, it was passed in 1982, David, to stop Phillip Agee from outing our covert agents abroad, basically.  The definition of covert agent under the law says that the person outed has to have been stationed abroad for the last, within the last five years before the disclosure.  “USA Today” did a piece from Joe Wilson's own book that they were in the United States for a period of time and she had not been overseas within the last five years.  Let me also suggest to you other reporting that I have and my colleagues have.  That she was under official cover.  She was covert.  Does that not apply?

SANFORD:  She may have been clandestine at the Agency.  Her identity as a CIA employee may have been secret as far as the agency is concerned.  That is not the definition of covert agent within the law.  This law has been applied only once an in its inglorious 20 year history.  It is, it seems to me a poor basis to try to found a whole investigation that has ended up with Judy Miller in jail.

GREGORY:  Dick, if that's the case, then why is it that George Tenet made a point of referring it to the Justice Department.  Why is it the Justice Department felt that it was important enough to hire a special prosecutor?

SAUBER:  Two things.  One, there are some very specific prohibitions about the misuse of classified data in any form.  So I don't know if that's an issue or not.  The one thing to remember is that every judge who has looked at the special pros prosecutors' under seal submission has agreed on one thing.  That it is extraordinarily substantial and material and forms the basis for every single judge saying that it trumps any claim of confidentiality that any reporter may have had in this case.  Even those judges who think there should be a federal common law privilege that cover reporters, such as Judge Tatle (ph), they've all said the information submitted is sufficient to overcome that privilege.

To me, I don't know what the information is but that mean this information is important and it is substantial and I think we have to wait and see what comes out.

GREGORY:  But again, Bruce, if she's working under official cover, and again, our reporting at NBC News says that prior to that she was under nonofficial cover, this is a covert officer.

SANFORD:  Not within the definition of the statute.  And it may well be a Pat Fitzgerald is prosecuting obstruction of justice or a perjury charge.  But it does not follow that just because judges have deferred to the national security interests here, that a violation of the Intelligence Identities Protection Act has been made.  That doesn't follow.  It does follow that the judges have felt there is some basis to permit Pat Fitzgerald to ask reporters' questions.  That could be for an obstruction or perjury investigation.

All right.  We're not done talking about this.  We're going to take a break and when we do we're going to continue with Dick Sauber and Bruce Sanford.

You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

COLETTE CASSIDY, MSNBC ANCHOR:  MSNBC keeps you up to the minute every 15 minutes.  Good evening everyone, I'm Colette Cassidy.  Nasal says the Space Shuttle Discovery will not be launched until at least Sunday.  But officials say that's really optimistic.  They say it could take several more days to figure out why a fuel sender malfunction forcing cancellation of yesterday's launch.

And a medical helicopter crashed moments after take off from the roof of a hospital in Valparaiso, Indiana.  Officials say a pilot, a doctor, a nurse, and a patient were on board but fortunately, no serious injuries are being reported.

And the military announced the capture of another high ranking member of Abu Musab Zarqawi's terror group in Iraq.  The second such capture announced this week.  It is believed the suspect was involves in the recent kidnapping and murder of Egypt's top diplomat in Iraq.

Now back to HARDBALL.

GREGORY:  We're back with an attorney for “Time” magazine's Matt Cooper and first amendment lawyer Bruce Sanford.  Bruce, I just want to pick up on what this actually says.  This 1982 act.  I fine it hard to believe that Congress would pass a law that would not apply to someone who is, has official cover in the CIA.  And who previous to that was under nonofficial cover.  That somehow this act would not apply to them.  If you reveal their identity in any capacity when they don't identify themselves as working for the CIA.  How could this law not be designed to protect them?

SANFORD:  You have to understand, when the law was passed, it was '82.  It was during the Cold War.  And it was really designed for covert agents abroad.  Not so much in this country.  And I don't think it was really ever intended to stop White House officials or governmental officials from discussing foreign policy or national security concerns here in this country within the Beltway or within the White House.  And I think there's a larger issue here that leak investigations are just not in the public interest.  Because if White House people, like Karl Rove, are stopped, are stopped, from talking to report betters what is really going on in government policy, the real loser there is the public.  It's not journalists.  They can go do some more stories.

GREGORY:  That may be the case, but Dick, the other aspect of this, he could have been trying to put something in could not tech or he could have been using Matt Cooper and other reporters to try to out a CIA operative and to try to destroy somebody's reputation.  Is that appropriate?

SAUBER:  Well, I think one issue that everyone seems to overlook here is that, what is a senior government official doing mentioning CIA individual employee, someone who might be an undercover agent without checking with the agency first to see whether that's appropriate?  Every single day in this city I imagine that senior government officials are very careful about the kind of classified information they talk about, about identities of Central Intelligence Agecny employees and they check.  I don't know if that was done here but I don't hear too many people discussing it at this point.

SANFORD:  Dick.  There are all kinds! Everybody in Washington knows people who work at the CIA and there are all kind of people who work there.  What Rove said to your client was that Wilson's wife, he didn't even use her name, Wilson's wife apparently works at the agency.

GREGORY:  The name doesn't matter, Bruce.

SANFORD:  That's true.  They can go find out who Wilson's wife is. 

She apparently works at the Agency is of what that.

GREGORY:  If Karl Rove went into George W. Bush, the president, and said Mr. President, we have to undermine Joseph Wilson's accusations against us because he is full of baloney.  I'm going to mention that his wife who works at the Agency put him up for this trip at Niger in the first case.  Do you think he would have said, go ahead.  Or might he have said, why don't we check with the Agency to check on her status?

SANFORD:  Yeah.  But the context was Rove and other White House people at the time was, Joe Wilson had written this op ed page and reporters were calling over there saying why didn't you pay attention to Joe Wilson?  Why didn't you do that?  And there had to be an answer.  And the answer was, Joe who?  Because he wasn't sent by the director of central intelligence or senior people to Niger.  He was sent by his wife or middle level people.  And the White House briefings never had any information from Joe Wilson, so what is essentially happening there is Karl Rove or other people are explaining to reporters why they didn't have the benefit of Wilson's information.

SAUBER:  If they were explaining, then why did it take two years and a leak identifying Mr. Rove as the source for somebody to come forward and make that same simple explanation?

SANFORD:  Because there was this pending investigation. 

Investigations shut people up.

GREGORY:  I've got 20 seconds left.  Dick Sauber, you're involve in this case.  You represent Matt Cooper.  Do you think special prosecutor Pat Fitzgerald has something else up his sleeve?  Is this a perjury investigation at this point?

SAUBER:  I believe based on the judge's reaction to what he submitted, and my knowledge of Mr. Fitzgerald and his talent, that this is a substantial and serious investigation.

GREGORY:  All right.  A lot more to come.  Thanks to both of you, Dick Sauber and Bruce Sanford.  We're going to have more on this story with Democratic strategist Steve McMahon and advisor to Howard Dean and former Bush campaign attorney Ben Ginsberg later in the hour.  But coming up, as President Bush considers replacements for Supreme Court Justice Sandra Day O'Connor, will his eventual pick get an up or down vote or face a filibuster.  We'll talk with key moderate Senator Mark Pryor of Arkansas.  You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

GREGORY:  Welcome back to HARDBALL.  The gang of 14 Republican and Democratic senators who recently helped avert the nuclear option during the recent judicial nominee hearings is back in business.  The group met today to reaffirm its alliance over the upcoming confirmation hearing for the slot left vacant by the retiring Sandra Day O'Connor.  And what kind of alliance is it?  One of that gang is Democratic Senator Mark Pryor of Arkansas.  He was at the meeting and he is here with us this evening.

Senator, welcome.  Good to see you.

SEN. MARK PRYOR, (D) AR:  Hey, thank you.  Thanks for having me.

GREGORY:  So, the group is back together.  You met today.  What did you talk about?  What is your role as the group is getting toward name a replacement for Justice O'Connor?

PRYOR:  Well, we had an informal meeting.  Senator Byrd wanted to get back together.  After the vacancy for the Supreme Court was announced the other day, we'd not had a chance to have all 14 sit down.  And I think the important point is one thing we wanted to emphasize is that we do not see ourselves as some sort of super judiciary committee or ad hoc committee within the Senate.  We want this nomination to go through the normal processes.  We certainly hope the president will confer with the two leaders and then also with members of the Senate judiciary committee.

GREGORY:  But senator, that may be nice to say but the reagent is you may have the—the reality is to say you may have the votes to determine it one way or the other.  So how could you not be a super body?  You're threatening to wield a real punch here.

PRYOR:  Well, what I would like to see is the president come one some sort of consensus nomination.  For example, Justice Scalia passed with over 90 votes as did Ruth Bader Ginsburg.  One is a liberal, one is a conservative.  It doesn't have to break down along ideological lines.  You can still find a conservative consensus nomination and I hope that will happen.

GREGORY:  That may be perfect.  Because the president said he wanted to name somebody in the model of Scalia or Justice Thomas.  So if it is somebody in that model, is that a consensus candidate for you?

PRYOR:  Well, Justice Thomas only got 52 votes when he came through. 

That was very divisive and very bitter.  I think it divided the country.  What I would hope we would have someone who would help unite the country, unite the court.  Someone who would be good for the Senate process but most importantly, good for the U.S. Supreme Court.

GREGORY:  So who is your pick?

PRYOR:  I don't have a pick.  We're going to let the president make that nomination.  Supposedly, he has a fairly long list that he is looking through right now.  And I just look forward to whoever he sends over.

GREGORY:  What do you think about attorney general Gonzales?  Is he a consensus candidate?

PRYOR:  You know, I like him a lot.  I voted for him when he was up for attorney general.  So I already have voted to confirm him to one position.  One thing we need to keep in mind is it is very, very different.  As important and as major a position as the attorney general post is in the U.S. government, the U.S. Supreme Court is different.  Most attorney generals serve at the will of the president.  Most serve for two, maybe four years.  But a U.S. Supreme Court justice will be on there basically for the rest of their lives.  Sandra Day O'Connor was on there for 24 years.  She had a huge impact on the development of American law.  She was a pivotal vote ...

GREGORY:  We know they're pivotal.  Is attorney general Gonzales the type of candidate, with the credentials, the legal background, the temperament and what we know of his philosophy as a former judge, in Texas, is he somebody who fits Senator Pryor's bill when it come to a good justice?

PRYOR:  Well, I would have to look at him.  Like I said, I voted for him for attorney general.  I've not considered him as a Supreme Court justice before.  At this point, if we do that, we need to go back and look at his decisions on the Texas Supreme Court.  We need to look at some other matters.  It is just a different standard, attorney general versus Supreme Court.

GREGORY:  What about extraordinary circumstances?  What is the definition of that?  What does that mean?  When would extraordinary circumstances require or justify a filibuster?

PRYOR:  You know, when we drafted the agreement, the 14 of us, we deliberately left that term open.  We didn't define it.  What we said is extraordinary circumstances will be defined by each senator and it will be defined by using our discretion and our judgment.  I think when the people in Arkansas, as well as the other 49 states, when they elect their senators, they expect us to use our discretion and our judgment and we will in this case certainly.

GREGORY:  Senator, a quick question about Karl Rove.  Should he keep his job?

PRYOR:  You know, I think certainly, it's 100 percent up to the president at this point.  I'm not sure that the investigation is over.  I'm not sure we know all the facts.  Personally I would say we probably should wait on that.  Allow the president to learn all the facts and once all the facts come out, then we can make that judgment.

GREGORY:  You don't agree with some of your Democratic colleague that he did something wrong, whether it a crime or not?

PRYOR:  I just don't want to be premature on that.  I don't want to weigh in and pass judgment on that until I know all the facts.

GREGORY:  Senator Mark Pryor, Democrat of Arkansas.  Thank you very much.

PRYOR:  Thank you.

GREGORY:  And when we return on HARDBALL, President Bush claims Saddam Hussein was seeking enriched uranium from Africa, Niger, to be specific, in his 2003 State of the Union address.  We'll look back at the history of the white house communication strategy on that point in the story and what's gone wrong.

You're watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

CASSIDY:  MSNBC keeps you up to the minute every 15 minutes.  Good evening everyone, I'm Colette Cassidy, here's the latest.

British police have released the photo of the suicide bomber they believe carried out the bus bombing during last Thursday's attacks in London.  Authorities hope someone might recognize 18 year old Hasib Hussein and provide details about his final moment.  Police also identified the three subway suicide bombers.

Meantime, an estimate 15,000 people gathered in Trafalgar Square to remember the victims of the four suicide attacks.  London's mayor along with religious leaders joined the crowd to honor the victims.  Today the official death toll rose to 54, 700 others also injured. 

And U.S. Chief Justice William Rehnquist is back home now after two days in the hospital.  He was admitted with a fever and kept for observation and testing.  A court spokeswoman would not give further details on his condition.  The 80-year-old Rehnquist was diagnosed with thyroid cancer in October and has been undergoing chemotherapy and radiation. 

Those are your headlines.  Now back to HARDBALL.

GREGORY:  Welcome back to HARDBALL.  I'm David Gregory in for Chris Matthews tonight.  Part of what has made this week so intriguing at the White House is that the normally disciplined administration message machine seems to have lost a little bit of control.  And this criminal investigation into leaks of classified information as well as the conflicting statements about Karl Rove all began with 16 words uttered by President Bush. 

HARDBALL correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  It started two-and-a-half years ago in the president's State of the Union . 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  The British government has learned Saddam Hussein recently sought significant quantities of uranium from Africa. 

SHUSTER:  Six months later, after U.S. forces had invaded Iraq and with the search for weapons of mass destruction yielding nothing, a column appeared in The New York Times titled “What I Didn't Find in Africa.” Joe Wilson, former U.S. ambassador to Gabon wrote he had been sent to Africa the previous fall and reported the Iraq uranium claim was unfounded.  One day after the column, and with the president in Africa, the administration issued a retraction. 

In a carefully scripted mea culpa, the White House blamed the CIA for the mistake.  And then CIA Director George Tenet finished the job with this statement, quote: “The claim did not rise to the level of certainty which should be required.  And CIA should have ensured that it was removed.”

When it was pointed out that the same Iraq uranium claim had been taken out of a presidential speech months earlier, then-National Security Adviser Condoleezza Rice said she never saw the CIA memos expressing concern about that speech.  And her deputy, Stephen Hadley, who did, said he mistakenly never passed along the concerns before the Bush State of the Union. 

In any case, the controversy over a false Iraqi nuclear claim might have died down except that on July 14, 2003, columnist Robert Novak, in an effort to discredit Joe Wilson, revealed, quote: “His wife, Valerie Plame is an agency operative.  Two senior administration officials told me Wilson's wife suggested sending him to Niger.” 

In the midst of an ensuing uproar over the disclosure of a CIA officer, Novak told Newsday, quote: “I didn't dig it out.  It was given to me.” 

By September of 2003, Patrick Fitzgerald, who President Bush named a U.S.  attorney in Chicago, had been appointed special prosecutor in the leaks investigation.  Later that month, with the investigation under way.

QUESTION:  You said this morning, and I quote: “The president knows that Karl Rove wasn't involved.” How does he know that? 

SCOTT MCCLELLAN, WHITE HOUSE SPOKESMAN:  Well, I made it very clear that it was a ridiculous suggestion in the first place. 

I've said that it is not true.  And I have spoken with Karl Rove. 

SHUSTER:  The very next day.

BUSH:  If somebody did leak classified information, I would like to know it and we'll take the appropriate action. 

SHUSTER:  But now that TIME magazine reporter Matthew Cooper has identified Karl Rove as his source, the president is with holding judgment. 

BUSH:  And it is very important for people not to prejudge the investigation. 

SHUSTER:  Press secretary Scott McClellan refuses to talk about his Rove denials, and the White House is under siege. 

QUESTION:  Now that Rove has essentially been caught red-handed peddling this information, all of a sudden you have respect for the sanctity of the criminal investigation? 

SHUSTER (on camera):  And the irony, of course, is that this criminal investigation of the White House started with 16 words about Iraq that suggested a nuclear threat.  And ever since then, the normally disciplined White House message machine has become unraveled, leaving both legal and political questions unanswered. 

I'm David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

GREGORY:  Thank you, David Shuster.  Steve McMahon is a Democratic political strategist and a longtime advisor to Democratic Party Chairman Howard Dean.  And Ben Ginsberg is a Republican attorney who served as national counsel to both the 2000 and 2004 Bush-Cheney presidential campaigns. 

Let me start with you, Ben.  You heard David Shuster's report.  The White House seems to have had a really communications problem from day one of this Niger story, hasn't it? 

BEN GINSBERG, FORMER BUSH CAMPAIGN ATTORNEY:  Oh, I'm not sure it has been a communications problem.  You guys have been absolutely withering in the way you've asked the questions. 

GREGORY:  Unfair?

GINSBERG:  But at any.

GREGORY:  Unfair, though, unfair questioning? 

GINSBERG:  Oh, look, nothing the press ever does is unfair. 

GREGORY:  Right.

GINSBERG:  But in a—when there's a criminal that is the background of that, then the people who are involved in that investigation, and the institutions who support those people, are really handicapped in being able to discuss everything.  That's simply the rules of the way the grand jury works. 

GREGORY:  Is it appropriate, Steve McMahon, for Democrats to be on the attack in the way they are, in a way that when the same was done to Bill Clinton or others in the Lewinsky scandal, created a huge furor among Democrats, that they were being unfair, that they were prejudging the case?  There is an ongoing investigation yet already people are calling on Rove to be fired, for his security clearances to be taken away.  Is that appropriate? 

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  Well, actually, I think it is a little bit different.  I think what people are call on the president to do is to keep the promise that he made.  The administration said that anybody involved wouldn't be part of the administration.  So.

GREGORY:  The president said anybody who leaked classified information would be dealt... 

MCMAHON:  But didn't Scott McClellan say that anyone who was involved in this wouldn't be working at this White House?  Now I don't know if Scott McClellan speaks for the president.  Normally he does.  I think that the administration set a standard for itself that it is going to be difficult for the administration to meet because of the president's personal loyalty to Karl Rove. 

Look, as a lawyer, I can tell you I don't think he broke the law.  I don't even think he intended to out her.  So—and frankly this is the kind of thing that happens in this town every single day.  So it is sort of hardball politics.  It is unfortunate, however, that the administration has put itself in this box.  The Democrats didn't do it.  The administration did it to itself. 

GREGORY:  So, Ben, if it is hardball politics, right, and we know that Rove is unapologetic about playing hardball politics, right?  OK.  And he plays it tough.  And so does the other side.  But the involvement of Valerie Plame, not naming her but referring to her, as senior official of the executive branch, shouldn't he have been darn sure that she was not undercover, which she was, at the time when he referenced her, in any way, shape or form? 

GINSBERG:  Let's remember this conversation.  Matt Cooper called Karl Rove.  It was a conversation about welfare reform.  It took place as Karl was rushing out the door to go on vacation.  I mean, talk about the toss-away lines of all toss-away lines.  Now the politics the Democrats.

GREGORY:  What was the toss-away line?  That his wife ordered the trip?  That she works at the agency? 

GINSBERG:  Yes. 

GREGORY:  Well, how is that a toss-away line? 

GINSBERG:  Because it was—because what he was trying to do was to warn off Matt Cooper from printing an inaccurate story.  Part of that inaccuracy is how his trip came about.  The Senate Intelligence Committee made absolutely clear that what Joe Wilson was peddling was not correct and not accurate. 

And, Karl, in a—very much a background situation, was saying, don't print something inaccurate. 

GREGORY:  Steve, is Karl Rove or any senior official duty-bound to make darn sure that when you talk about a CIA operative, a former CIA operative, that the person was not undercover, that you're not jeopardizing their foreign contacts. 

MCMAHON:  You would think so and you would hope so.  And in this case, obviously either that wasn't the case or it was deliberately ignored.  I actually would be inclined to agree with Ben if that was all it was.  But remember, Bob Novak said that he didn't dig this up.  Two administration officials pushed it on him. 

So if what Ben is saying is true, and perhaps it is, and it was a throw-away, and it was Karl's conversation with a reporter before he went on vacation, who was the other administration official that was pushing this around?  Because we know that there were at least two.  And when is that person going to come forward? 

GREGORY:  Ben, do you think the president and the vice president approved of a strategy pursued by Karl Rove and perhaps even others to discredit Joe Wilson, including by pointing out the context of the fact of who ordered his trip, which apparently was his wife? 

GINSBERG:  I would doubt it.  And I don't think you could draw any of those inferences you just drew on the basis of the Karl Rove-Matt Cooper conversation.  I mean, remember, this really was a brief conversation about another subject in which this was sort of the last thing mentioned.  And so that hardly sounds like a deliberate strategy to do much of anything. 

GREGORY:  Let me ask you about communications.  I mean, this is—we keep saying this.  I mean, the White House knows what it is doing.  These guys are very disciplined.  I know this close—up close and personal.  And yet they sent—Karl did, sent Scott McClellan out two years ago and said, you can tell the press I was not involved.  Was that a mistake? 

GINSBERG:  No.  I don't think so.  I mean, I suspect that that is an honest statement of what they honestly believe was the truth, given that the sort of nature of this conversation with Cooper.  Is that involvement?  I'm really not sure. 

GREGORY:  Steve?

MCMAHON:  It was clearly a mistake.  It was obviously a mistake.  And listen, I don't think that Karl Rove intended to put his friend in that position. 

GREGORY:  Right.  By the way, Mike McCurry was in a similar position during the Lewinsky investigation. 

MCMAHON:  Mike McCurry was in a similar position.  But, you know, these things sometimes happen at the White House.  And, unfortunately, they're now in a box.  It is not the Democrats who put them there.  It is the Republicans, it's the administration. 

GREGORY:  If this is a political fight, who is winning it?  I mean, are Democrats doing themselves any service here? 

GINSBERG:  Look, this is the big—the big picture is that the Democrats have no programs, no plans about any of the subjects that are before the American people.  It is all attack Republicans.  They haven't come up with a welfare plan.  On Supreme Court judges, they're sort of universally negative about just about everything.  And this is part and parcel of basically a slash and burn, tar and feather attack.  And you'll see it whenever the nominee is named as well. 

GREGORY:  The president, I don't think, has talked about Social Security in a way that has been in the press in a while.  So this is certainly a distraction. 

MCMAHON:  And it's probably a good thing for the president that he hadn't talked about Social Security in a little while. 

(LAUGHTER)

MCMAHON:  Did you see those numbers, Ben? 

GINSBERG:  Where's your guys' plan?  It is coming up again. 

MCMAHON:  By the way, it's interesting, Ben points out that we don't have a plan.  There are all kind of Democrats proposing all kinds of things up on Capitol Hill.  But guess what?  The Republicans run the Hill.  And you know what they're concerned about?  Protecting big financial institutions for people who might declare bankruptcy. 

GINSBERG:  Oh, Steve, cheap and tawdry at the end.  See it's the throw-aways at the end. 

GREGORY:  Right, right.  All right.  We're going to leave it there. 

Thanks to both of you, Steve McMahon and Ben Ginsberg. 

Coming up, President Bush gives Karl Rove a show of confidence before the cameras today, but will the president be able to protect Rove's political future?  This is HARDBALL only on MSNBC.

(COMMERCIAL BREAK)

COLETTE CASSIDY, MSNBC ANCHOR:  MSNBC keeps you up to the minute every 15 minutes.  Good evening, everyone, I'm Colette Cassidy.

NASA says a Sunday launch of the Space Shuttle Discovery is possible but not probable.  Officials say they expect it will take several more days to figure out why a fuel sensor malfunctioned, forcing them to postpone yesterday's launch. 

Hurricane Emily has strengthened into a Category 3 storm with 150-mile-an-hour winds.  It battered Grenada today.  Forecasters say if Emily stays on its current track, it will hit the northeast coast of Mexico and miss the United States. 

And an appeals court in Aruba refuse to release 17-year-old Joran Van Der Sloot.  He is the only person still being held in connection with the disappearance of the Alabama teenager Natalee Holloway, last seen six weeks ago. 

Now back to HARDBALL.

GREGORY:  Welcome back to HARDBALL.  I'm David Gregory in tonight for Chris Matthews.

Even hotter than a Washington summer is the intrigue now surrounding the investigation into the leak of a former CIA officer's name to the press.  The grand jury investigation into the leak goes on.  The media focusing on the role the president's right-hand man, Karl Rove, played.  But is Rove the leaker or is all of this simply a distraction?  Andrea Mitchell is NBC's chief foreign affairs correspondent.  Stephen Hayes (ph) is with The Weekly Standard.  And Tom Oliphant is a columnist for The Boston Globe and author of the new book, “Praying for Gil Hodges.” 

Welcome to all of you.  Tom and all of you, let's play this tape from the White House today.  The president is on a day trip.  And this is what it looked like as he left the Oval Office.  Look who is standing right by his side, none other than Deputy Chief of Staff Karl Rove.  This could be, Tom, because the White House and the president specifically declined to offer full confidence for Rove yesterday.  Is that what he's saying here?

THOMAS OLIPHANT, AUTHOR, “PRAYING FOR GIL HODGES”:  And more.  This is a whole new genre in politics, if I could use a French word. 

(LAUGHTER)

OLIPHANT:  Thank you.  I think we should call this the “reverse perp walk.”  Bush did it with Tom DeLay earlier this year.  And the signal here is not only that he is with Rove, but that he is as involved as Rove is personally in the spinning of this story. 

GREGORY:  Andrea, do you agree with that?  That's actually interesting.  Do you agree with that that—was this not only, I stand by my guy, but I stand behind what he was doing? 

ANDREA MITCHELL, NBC CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Absolutely.  I think that this is a full embrace of Karl Rove and I—you know, there were people arguing it round, people arguing it flat yesterday.  I interpreted Rove's taking his regular seat behind the president at the cabinet photo op as a sign of favor.  Some people thought that the president not having said something fully embracing Rove was a mark of disfavor. 

He said, as you know, afterwards, that it was because—they put out the word that it was because no one asked.  But I think today was to try to make up for that.  Today was to say, this is my man, I'm standing by him, I am loyal to him.  And it was to signify to everyone, back off, especially the Republicans on the Hill who were beginning to get a little nervous. 

You know, Karl Rove has been a blessing for many Republicans, but he is also such a tough player that there are people that he has hurt.  And they would be quick to seize on any sign of weakness or presidential disfavor. 

GREGORY:  Steve Hayes, what is your reading on how hot the heat is for Karl Rove right now? 

:  STEPHEN HAYES, THE WEEKLY STANDARD:  I don't think right now, given what we know, that he is in any trouble.  I mean, I do agree with the other panelists that this was an indication that the White House is fully supportive of him, that George W. Bush is fully supportive of him. 

I mean, one thing that we've all reported now for years, really, since the president started to campaign for president, was that he prized loyalty above all else.  And I think that loyalty goes both ways.  So I don't think we're likely to see any backing away from Karl Rove in the days to come. 

GREGORY:  Joe Wilson is now front and center back in the story.  Earlier today the former ambassador, who is at the center of all of this in many ways, held a news conference with Democratic Senator Charles Schumer of New York to call for Karl Rove's security clearance to be taken away. 

And here's what Wilson said about Rove.  Let's listen.

(BEGIN VIDEO CLIP)

JOSEPH WILSON, FORMER AMBASSADOR TO GABON:  I made my bones confronting Saddam Hussein and securing the release of over 2,000 Americans in hiding in Kuwait, 115 American hostages held by Saddam as human shields, and providing sustenance, support, and lodging to another 75 Americans that we put in diplomatic quarters so that they would not be taken hostage by Saddam Hussein.  That's how I made my bones.  Karl Rove made his bones doing political dirty tricks. 

(END VIDEO CLIP)

GREGORY:  Andrea, let's briefly reset the table here.  And I want to you briefly kind of set the record straight.  On the one hand, you've got Republican operatives saying Karl Rove was merely trying to discredit Joe Wilson when he talked to Matt Cooper and revealed that his wife sent him on the trip to Niger which started all of this off, and that because he was kind of peddling bad information, that Wilson was.  On the other side, they argue that Rove was deliberately trying to out Valerie Plame.  Set the record straight here going back to the Niger trip and the actual claim about whether Saddam was trying to pursue uranium from Niger. 

MITCHELL:  Well, Joe Wilson went at the suggestion, perhaps, of Valerie Plame, who had, through an e-mail that was available to the Senate Intelligence Committee—had suggested that her husband had connections there.  But she did not, according to CIA officials, have the authority to send him.  So she may have suggested it to her colleagues at the time, but the decision to send him came at a higher level, not at the George Tenet level, not even underneath George Tenet at Jim Pavitt, who was the head of the Covert Operations Service.  But certainly, at a higher level in the CIA.  That's one thing. 

There are people in the Senate Intelligence Committee, including the chairman, Pat Roberts, who dissented from the majority report of the Senate Intelligence Committee in 2004 and say that they believe that her e-mail did indicate that she sent him.  But, again, the CIA denies that. 

The other thing is a lot of misreporting, including in some of the papers today about what her role was.  She was back in the States, had been back in the States since 1997.  But she was still covert.  She was considered a CIA officer, and a covert officer at Langley.  Now she had previously been what was considered under non-official cover, which meant that she was of the deepest type of undercover spy overseas, meaning she had a job in a CIA front organization, a company that took years and years to establish.   And that revealing her name was serious because anyone who ever dealt with that company or with her, any foreign national CIA agent, agent that is a term used for foreigners, that person or persons could then be suspect and could then be under life-threatening conditions. 

GREGORY:  OK.  More on this.  More on the politics.  More on the follow-up.  We'll be back with Andrea Mitchell, Tom Oliphant, and Stephen Hayes.  This is HARDBALL on MSNBC.

(COMMERCIAL BREAK)

GREGORY:  Now we're back on HARDBALL with our panel. 

Tom, is the problem here sloppiness for Karl Rove at the very least? 

In other words, if he went into the president and said, you know, Mr.  President, we have got to discredit Joe Wilson because he's not telling the truth when he attacks this White House about pre-war intelligence, and I think one of the things we need to do is talk about the fact that his wife worked at the agency and actually authorized the trip, put him up to this.  What would the president have told him? 

OLIPHANT:  You're an idiot, I would have thought.  I mean, I happen to agree with my colleagues that the water temperature under Joe Wilson—under Karl Rove is not all that hot right now.  And I don't think it's going to get much hotter in a criminal sense.  This is a political mistake. 

And as Andrea alluded to, Pat Roberts has very strong views about Wilson's conduct.  He is expressing them today.  Kit Bond, another member of the Senate Intelligence Committee is doing the same.  There is plenty of stuff for a White House to push back with against a guy who is criticizing them.  The mystery to me is why Rove would have added Mrs. Wilson's name to this pile.  It only got him trouble, it didn't get the president any relief from criticism. 

GREGORY:  If Joe Wilson was peddling bogus information, if he had an agenda against the White House, as a senior official, are you still not duty-bound to not mess with the CIA, to be very careful when you're talking about the national security apparatus of the country? 

HAYES:  Oh, absolutely.  I think if somebody knowingly used her name and knew that she was undercover, that person should be in jail.  I don't think anybody disagrees with that.

GREGORY:  Right.  But we're not even talking about the criminal elements of this, we're talking about making any allusion to her without knowing her status. 

HAYES:  No.  I think it is perfectly appropriate and justifiable to give that context to a reporter who was about to file it seems an erroneous report.  I mean, we now know, with the benefit of hindsight, that virtually nothing that Joe Wilson said was true.  We know that he went to Niger.  We know that he had green tea.  We know that he met with some people. 

GREGORY:  Well, what substantively was wrong? 

HAYES:   . virtually everything else.

GREGORY:  What substantively was wrong?

MITCHELL:  No.  That's not.

HAYES:  He wasn't sent by the vice president.  His wife did in fact have something to do with his being sent.  When he came back and reported in The New—wrote in The New York Times that he had thought this was all bogus, that Iraq really hadn't been seeking uranium from Niger, the CIA in fact took his oral reporting and took it in a much different way.  They thought that it actually underscored the possibility of the likelihood that Iraq was seeking uranium. 

GREGORY:  Andrea, comment? 

MITCHELL:  The CIA had in fact very ambiguous and contradictory opinions in several different documents on the same subject.  But they had been warning—in some of their documents, they had been warning all along, in October and November and December, leading up to the State of the Union, that there were problems with the reporting on Niger. 

And in fact, there had been several other emissaries.  There was the former ambassador who went.  There was a four-star Marine general who went.  So there were other things.  The thing that the CIA didn't do and the CIA was criticized roundly and appropriately by the Senate Intelligence Committee report is they never checked out the documents, the documentation which was clearly fraudulent, which had come from a foreign intelligence service and didn't check it out for months. 

GREGORY:  Tom—go ahead. 

OLIPHANT:  And the president removed—or retracted the statement he made about Niger in his State of the Union address.  Return to the point, however, that there is a legitimate argument here about what Joe Wilson did and said, a completely legitimate argument.  And there's a lot of information on the other side.  We're playing hardball and I do not understand why Karl Rove put this additional feather on the map, namely Mrs. Wilson. 

GREGORY:  All right.  We're going to have to leave it there.  Thanks to all of you.  Sorry, Andrea, we have got to run.  Thanks to Andrea Mitchell, Tom Oliphant, and Stephen Hayes.  Join us again tomorrow night at 7:00 Eastern for more HARDBALL. 

Right now, it is time for “COUNTDOWN WITH KEITH OLBERMANN,” good night, everybody. 

END

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