updated 10/2/2005 9:46:04 PM ET 2005-10-03T01:46:04

Guests: Michael Isikoff, Barry Groveman, Ed Corridori, Ben Ginsberg, Mark

Green, Bob Bennet, Stephen Hayes, Chuck Todd

CHRIS MATTHEWS, MSNBC HOST:  After spending nearly three months in jail, New York Times reporter Judy Miller breaks her silence and testifies before the Grand Jury investigating the CIA leak case.  What does this mean for the president‘s man, Karl Rove and Cheney‘s top man, Lewis “Scooter”  Libby?  Let‘s play HARDBALL.

(MUSIC)

MATTHEWS:  Good evening, I‘m Chris Matthews.  Judith Miller, the New York Times reporter who spent over 12 weeks in jail—I visited her—for refusing to give up her source in the CIA leak investigation, was released late Thursday, after reaching an agreement with Patrick Fitzgerald, the federal prosecutor in the case.  Miller‘s decision to testify today before the Grand Jury for four hours was based on a phone conversation reportedly she had with her source, Vice President Cheney‘s chief of staff, “Scooter” Libby, when he assured her, his waiver was offered voluntarily and personally. 

And now the spotlight is once again focused on senior White House officials.  We begin with this report from HARDBALL correspondent, David Shuster. 

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  After 85 days in jail, Judy Miller spent her first full day of freedom testifying to the Grand Jury. 

(BEGIN VIDEOTAPE)

JUDITH MILLER, “NEW YORK TIMES” REPORTER:  I was a journalist, doing my job.  Protecting my source until my source freed me to perform my civic duty to testify. 

(END VIDEOTAPE)

SHUSTER:  The “New York Times” identified Miller‘s source as “Scooter” Libby, Vice President Cheney‘s chief of staff.  And according to the “Times,” Miller and Libby spoke on July 8, 2003.  That‘s significant, because it was just two days after former diplomat Joe Wilson publicly criticized the administration‘s intelligence about Iraq.

The next week, journalists began reporting that Wilson‘s wife, Valerie Plame, was a CIA officer.  And in the midst of the ensuing uproar over that disclosure, columnist Robert Novak told “Newsday,” quote, “I didn‘t dig it out, it was given to me.”

(BEGIN VIDEOTAPE)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I don‘t know of anybody in my administration who leaked classified information.  If somebody did leak classified information, I‘d like to know it.  And we‘ll take the appropriate action.  And this investigation is a good thing. 

(END VIDEOTAPE)

SHUSTER:  From the beginning, prosecutors were intent on reconstructing conversations between White House officials and reporters.  This summer, after exhausting their appeals, a judge told Judy Miller and “Time” magazine reporter Matt Cooper they would be jailed if they continued to refuse to testify. 

(BEGIN VIDEOTAPE)

MATT COOPER, “TIME” REPORTER:  In what can be only described as a stunning set of developments, --

(END VIDEOTAPE)

SHUSTER:  Cooper said he received a last-minute waiver from his source.  Then he testified that source, Karl Rove, was the one who told him Joe Wilson‘s wife worked for the CIA.  Cooper said he followed up with the vice president‘s chief of staff, “Scooter” Libby. 

(BEGIN VIDEOTAPE)

TIM RUSSERT, HOST, NBC‘S MEET THE PRESS:  Did Mr. Libby say at any time that Joe Wilson‘s wife worked for the CIA? 

COOPER:  No, he didn‘t say that. 

RUSSERT:  But you said it to him? 

COOPER:  I said was he involved in you know, that she was involved in sending him, yes. 

RUSSERT:  And that she worked for the CIA? 

COOPER:  I believe so. 

(END VIDEOTAPE)

SHUSTER:  As for Judy Miller, she never wrote about Valerie Plame and only agreed to testify today, she said, because of her own recent conversation with Libby. 

(BEGIN VIDEOTAPE)

MILLER:  This was in the form of a personal letter and most important, a telephone conversation—a telephone call to me at the jail. 

(END VIDEOTAPE)

SHUSTER:  The testimony of Miller and Cooper undercuts previous White House denials that neither Libby nor Rove were involved. 

(BEGIN VIDEOTAPE)

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

(END VIDEOTAPE)

SHUSTER:  But despite the fact the president‘s top advisor and the vice president‘s chief of staff were involved, it does not mean an illegal act was committed.  Lawyers for Rove and Libby said the officials didn‘t do anything wrong because they never identified Wilson‘s wife as, under cover.

(On camera):  The questions about legality, though, will be answered by the Grand Jury.  And now that Judy Miller has testified, lawyers following the investigation believe the panel could reach some conclusions as early as next week.  I‘m David Shuster for HARDBALL, in Washington. 

MATTHEWS:  Thank you, David Shuster.  Bob Bennett is Judy Miller‘s attorney and joins me now. 

You know, I did go over to visit her about a month ago—six weeks ago—she looked terrible.  The jail time was brutal, wasn‘t it? 

BOB BENNETT, ATTORNEY FOR JUDY MILLER:  It‘s brutal.  And she‘s been in for about 85 days.  She‘s a very brave and dedicated, committed journalist. 

MATTHEWS:  How tough was it on her? 

BENNETT:  I think it was tough.  But Judy‘s very strong. 

MATTHEWS:  Why did something change this week that allowed her to come out and breach her silence about who gave her that information? 

BENNETT:  Well I think there were two principal things.  Judy felt that she made a commitment of confidentiality to her source.  And she was not willing to violate that until she actually heard from the source that he personally released her from her promise of confidentiality.  And that was on a call September 19th.  And then it was followed up by a letter that I received on September 20th—date of the letter is a few days before that.

Secondly, it was important that we be able to reach an agreement with the special counsel, Mr. Fitzgerald.  And we were able to reach an agreement with him which enabled Judy to go in and testify.  But it was sufficiently limited that other sources and other information on other things would not be revealed. 

You know, as the new chief justice would tell you, Chris, timing is everything.  So—

MATTHEWS:  Well this country is filled with people who have been waiting for a phone call.  Whether it‘s something relatively inconsequential, although emotionally, not—you go out on a date and you never get another call again.  Why did Judy Miller have to sit there and wait for this phone call from “Scooter” Libby for all these months?  Why didn‘t he make the call earlier?

BENNETT:  I can‘t answer that.  What I can say—

MATTHEWS:  Did he know she was waiting for that call to free her? 

BENNETT:  His lawyer, Mr. Tate, would say no.  But if you look at Judy‘s statements and look at Floyd Abrams‘ statements, who is also counsel to Judy, it‘s clear that there were repeated statements that Judy would not testify unless she got that personal call.  And so—that‘s all I can say. 

MATTHEWS:  The denial here is grander than that.  The lawyer for “Scooter” Libby is saying, he‘s surprised to learn that his client was the source that she was protecting. 

BENNETT:  Yes. 

MATTHEWS:  Is that credible? 

BENNETT:  I can‘t answer that.  You know, I wasn‘t in the case at that point.  And I can tell you that Floyd Abrams wrote a letter to Mr. Tate rebutting many of the statements that Mr. Tate is making on behalf of his client.  I was not there, so I can‘t address the merits of those things. 

MATTHEWS:  What could have moved Mr. Libby and his attorney to decide at this point, after all these weeks, almost three months of her incarceration, to take the step necessary to free her? 

BENNETT:  I don‘t know, Chris.

MATTHEWS:  Could it be they‘re expecting an announcement by the prosecutor, Mr. Fitzgerald, in the next couple of days? 

BENNETT:  I just honestly don‘t know. 

MATTHEWS:  Let‘s get at it in a legal fashion.  The protocol has been over the years, that you only squeeze a reporter when they are the necessary step to a prosecution in a case you believe is otherwise sound.  Is this the case here?  Is Judy Miller‘s testimony against “Scooter” Libby essential in making a case against Mr. Libby? 

BENNETT:  I just don‘t know.  We don‘t know.  Because Mr. Fitzgerald does not, nor should he, frankly, share that information with us.  And what has been one of the big mysteries in all of this is that we know the Office of Special Counsel filed with the Appellate Court, and with the District Court, a portion of a brief under seal, where he lays out what he‘s presumably pursuing.  And nobody, except the court and the special counsel, know what‘s in there.

I don‘t know, I mean there‘s only one of two things.  Either he is going at the underlying statute of somebody knowingly, intentionally outing an agent—which is a very tough statute.  There are so many—

MATTHEWS:  You have to know that they‘re under cover. 

BENNETT:  Yes, you really—it was legislation that was passed, Chris, in response to the positive affirmative outing of agents. 

MATTHEWS:  Right. 

BENNETT:  So he‘s either pursuing that.  Or, an easier type of prosecution, which is false statement or perjury, where all you have to show is is that somebody lied about something which is material to the investigation. 

MATTHEWS:  You‘re in a tough spot.  But I trust your judgment.  Do you think that the matter here at hand, the outing of a CIA agent, for political revenge purposes, or for intimidation purposes by someone who has the interests of the president at heart, I guess, politically, justifies this kind of rough treatment of your client?  In other words, is this case important enough that there has to be a few eggs cracked here? 

BENNETT:  Well that‘s a very difficult question to answer, because I support a federal shield law.  I think one reason we have the relatively honest government we have is the ability of reporters to do what they do without being subpoenaed all the time, so I‘m a big advocate of the shield law.

But I will also say that if—and that‘s a big question, if—if somebody is knowingly and intentionally outing an agent, that is very serious business which I think probably should be part of an exception to a shield law.  Because don‘t forget, what a lot of people forget is it‘s not simply the outing of an agent, but, you know, what happens—and I‘ve been involved in a lot of classified things over my career. 

What happens is as soon as an agent is outed, the intelligence services of other countries, many of our enemies, they go and try to...

MATTHEWS:  Track it down, all the...

BENNETT:  Track it down, all the contacts, all of the officers.  And that‘s a disaster.  That can put a lot of lives in real jeopardy. 

MATTHEWS:  OK, and lawyer‘s question—your client‘s been through hell.  I went over—I just mention, I saw her condition, I hope it gets better quickly.  She looks very unhealthy, for all that jail time over at the Alexandria Jail here.  Do you think if this ends up in nothing more than Mr. Fitzgerald issuing some sort of statement, no indictments, that it will be even harder for him to defend what he did to your client? 

BENNETT:  Well, you know, I said before Judge Hogan—and let me say, I have very high personal regard for Mr. Fitzgerald.  He‘s dealt with us very professionally.  I want to see what he has before I can answer whether his steps to lock up Judy are justified.  I said, when I was before Chief Judge Hogan, I had had this very uneasy feeling, or words to that effect, that Judy Miller may be the only person spending time in jail in this case.  And if that proves to be the case, then I‘m going to be very, very troubled about it. 

MATTHEWS:  OK, thank you very much.  Great to have you on, Bob Bennett.  Thank you.  Attorney for Judith Miller, who just got out of jail after three months of refusing to give away her source, which she‘s now done, having gotten what she believes to be the voluntary clearance waiver by that source.

Coming up, we‘ll get reaction from the White House to Judy Miller‘s testimony today.  Plus, will President Bush go to that right of John Roberts when he picks his next Supreme Court nominee?  Everybody‘s betting on that.  You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Still ahead, President Bush said people would be fired if laws were broken.  So what‘s ahead for the CIA leak investigation now that Judith Miller‘s testifying?  HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.  For more on Judith Miller‘s testimony and the CIA leak investigation—today it was four hours before the Federal Grand Jury—and what it means for Scooter Libby, who‘s the chief of staff to the vice president and her source in this story, I‘m joined by “Newsweek” magazine‘s investigative reporter, the best in the business, Michael Isikoff. 

Sir, if you know it, tell us.  Where is this leading? 

MICHAEL ISIKOFF, “NEWSWEEK”:  Unfortunately—well...

MATTHEWS:  She talks, Scooter now has been identified by the chief of staff as her source, as to the identification of apparently of Valerie Plame, the wife of Joe Wilson, as having been a CIA agent.  What more do we need to know here? 

ISIKOFF:  Well, we need to know if Pat Fitzgerald thinks a crime was committed.  And that‘s, you know—presumably now, we should know for, you know, very soon.  Because Fitzgerald has said his investigation was complete and he said this at the beginning of the summer in court filings.  The investigation was complete, but for, too, the testimony of Matt Cooper and the testimony of Judy Miller.  He‘s got both now.  We should—he should show his cards very soon. 

MATTHEWS:  Can you tell by the sequence of witnesses called and recalled, brought back again to testify before the grand jury, can you tell by that pattern who he‘s focusing on? 

ISIKOFF:  Look, if you take a step back from—you know, this has been going on for almost two years, actually more than two years.  What we knew until three months ago was we didn‘t have any idea.  And now, we‘ve got pretty much solid testimony that the two principle people who were passing along information to reporters were Karl Rove and Scooter Libby.  The top aides...

MATTHEWS:  You guys said that two years ago, didn‘t you? 

ISIKOFF:  We certainly—I mean they were in the mix of suspicion.  I mean, everybody speculated about Scooter Libby from the get-go. 

MATTHEWS:  If you guys knew it 90 percent or 80 percent certainty, how come the president has done nothing on investigating his own staff.  How come the chief of staff to the vice president is under this kind of shadow and he‘s still there? 

ISIKOFF:  Because they‘ve taken the position that they are not going to lift a finger, that this is in Pat Fitzgerald‘s court.  He‘s there to determine—to get to the bottom of it and determine whether a crime was committed.  And, you know, whether that‘s politically wise or not, it‘s left them in a position where, if Pat Fitzgerald folds his cards and doesn‘t indict, this whole thing goes away, it‘s a nothing burger.  We won‘t be talking about it. 

MATTHEWS:  How about if he issues a report?

ISIKOFF:  If he issues—hold on a second.  The other alternative is, he issues indictments.  Given the players here, it could cripple this presidency.  It could cripple this White House.  Scooter Libby, top aide to the vice president, Karl Rove, you know, top aide to the president.  You can‘t imagine this White House, you know, without those two people. 

MATTHEWS:  Is like Halderman and Ehrlichman going? 

ISIKOFF:  I mean, you‘re in a Halderman and Erlichman territory. If, if, Fitzgerald brings a case.  Now...

MATTHEWS:  How about if he brings a charge, a public charge, one of those things, where he says, this is evidence, we don‘t think we can prove the case, but we believe this misbehavior went on?

ISIKOFF:  It‘s not clear the mechanism how he could do that.  This is not the independent counsel statute where he‘s required by law to give a report.  He has to go through a process to get an approval from the judge to give a report.  Whether he can do that in timely fashion is still unclear. 

MATTHEWS:  Is there any legal importance or vulnerability to the president having—chief of staff, I think it was Andy Card, asked a lot of these people to sign disclaimers and claim they were not the source of the leak.  Does that carry the power of possible perjury, if they signed that and then it was determined to be not true? 

ISIKOFF:  No, because it‘s not a Justice Department document, it‘s not an official document.  In fact, I‘m not even sure we‘ve seen the document.  Actually the only thing I know they‘ve signed is these waivers that they were asked to sign the waivers.  I don‘t know about any sort of saying I was not the source of the leak.  Because, you know, how was that—how was that phrased?  How was that worded?  We don‘t know. 

MATTHEWS:  OK.  I asked Bob Bennett, who‘s the attorney for Judith Miller just a moment ago whether the fact that they squeezed Judy Miller so hard, to put her in jail for three months, that they needed her to make their case.  Is she going to make their case for them now that she‘s out? 

ISIKOFF:  Oh, you know, it‘s—look, we don‘t know.  First of all, we haven‘t seen the grand jury testimony.  We don‘t know exactly what the questions were and we don‘t know—but here‘s what we do know.  We do know now that it‘s being acknowledged that Scooter Libby did pass along information about Joe Wilson‘s wife and the CIA to Judy Miller. 

The question in my mind is, how did he learn that information.  And, this may come down to, not a violation of the Intelligence Identities Protection Act, that that was the violation.  The violation may be he did not—that Fitzgerald has information that contradicts what Libby testified to, about where he learned it. 

Because we do know this information—exactly what he passed along to Judy Miller—was in a classified State Department document, labeled, “top secret” on the top.  And the particular paragraph in which that information was in, was labeled, “secret S (ph).”  No foreigner—no foreigner may have it.

MATTHEWS:  Sounded (ph) like a more a grievous crime if he used that as his source. 

ISIKOFF:  I don‘t know if the crime itself to disclose that—disclosing it may not be the crime itself.  It may be whether he honestly said, that‘s where he learned it.  That‘s why I think this may come down to where he learned the information that we now know he passed along ...

MATTHEWS:  And if he said he got it from a journalist, he may have a perjury problem. 

ISIKOFF:  If Fitzgerald can prove that he learned it elsewhere, yes. 

MATTHEWS:  OK.  Thank you, Michael Isikoff. 

ISIKOFF:  Sure.

MATTHEWS:  I‘ll be reading “Newsweek” this Sunday afternoon at my nearest airport where I always get it first. 

Anyway, up next, wildfires are burning out of control in Southern California, as we know.  Homes are threatened and the entire areas have been evacuated.  We‘ll get the latest from the mayors of two towns closest to the flames.  You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  As 300 firefighters continue to fight a 10-mile fire line in Southern California, we turn to two mayors who are currently in the thick of things.  Barry Groveman is the is mayor of Calabasas, and Ed Corridori is the mayor of Agoura Hills.  Both California communities were evacuated as fire swept through their areas. 

Good evening, gentlemen.  Let me ask you, Mayor Groveman, how are you working together?  How is mutual aid working out there as part of the firefighting effort? 

MAYOR BARRY GROVEMAN, CALABASAS, CA:  Mutual aid is fantastic here.  That‘s what I think saved the day.  I‘ve been in law enforcement, so I‘ve seen this before.  The best way to describe it is when I went through community by community in our neighborhood with our city manager, I saw Merced County, San Francisco, Sacramento. 

All of the fire companies in our neighborhoods.  Sheriffs were in our neighborhoods with bull horns and it was heartening and comforting to our community to see that kind of mutual aid, followed up by a unified command at the command center, a way of coordinating the way they were all responding. 

So I think that what makes the difference here is a very, very effective mutual aid, effective program, with a really good command.  And that isn‘t always the case.  I mean, I‘ve seen in the past, very serious communication problems, don‘t have enough channels within which to communicate. 

That was not the case here.  It was very, very well orchestrated, very well prepared.  We all had a role.  And I think we‘re grateful to all of these firefighters for that reason. 

MATTHEWS:  Mayor Corridori, how does it work?  How does the communication system work among the various government levels? 

MAYOR ED CORRIDORI, AGOURA HILLS, CA:  Well, there‘s a unified command system that‘s set up and everybody is speaking the same language with the same type of EOC, or emergency operating center so that there‘s—everybody is on the same wavelength, so to speak.  And that‘s really what makes it effective. 

We actually practiced this very scenario on the 19th, just a little over a week ago.  We know that we live if an area that‘s prone to these kinds of fires and we have been prepared for sometime to deal with them.  So, it has worked out very well.  We‘ve had—in our city, there were no injuries and no property losses, whatever.  Our equestrian community was evacuated without incident. 

GROVEMAN:  Chris, I would add that what‘s typically chaotic in these things is the various groups and forces and different companies not capable of communicating.  That‘s not the case here.  They had the right frequencies.  They were all on target.  So information was communicated and what the public needs from us is accurate information. 

They want to know, do we have to be evacuated?  If so, how will we know?  Who will tell us?  When will it be safe to be come back?  And we‘ve been very effective in communicating that.  And I think on the canvas of things going around the country, there was a high expectation and I think we‘re all very satisfied with where we are right now. 

MATTHEWS:  Mayor Corridori, how many minutes or hours ahead of a fire do you try to get people out? 

CORRIDORI:  Well, the evacuation is actually called by the unified command center, not the city.  The city is—our city is a small city.  We contract with the L.A. County Sheriff and Fire Department for those services.  And they make the call of when people should go out.  People responded very well and got out of the danger zones well ahead of time. 

MATTHEWS:  OK.  Well that‘s great to hear.  Thank you.  It‘s good to hear we‘re getting our acts together out there.  It‘s so great.  Thank you Mayors Barry Groveman and Ed Corridori.  Congratulations, gentlemen ...

GROVEMAN:  Thank you, Chris.

CORRIDORI:  Thank you, Chris.

MATTHEWS:  ... on working so hard on this. 

Coming up the next vacancy to fill on the Supreme Court.  Who might President Bush choose to replace Justice Sandra Day O‘Connor, sort of a moderate conservative?  How does he thread that needle?  And can we expect an announcement next week?  It looks like maybe Monday.  You‘re watching HARDBALL on MSNBC.

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MATTHEWS:  Welcome back to HARDBALL.  President Bush is expected to announce his next pick for the Supreme Court very soon, perhaps Monday.  A White House spokesman said he‘s finished consultation with the Senate, and is close to making an announcement.  Whoever the president picks will surely have a tougher time than the new chief justice, John Roberts, did. 

I‘m with Republican attorney Ben Ginsberg, who is an advisor to a pressure group Progress for America, and former New York City public advocate, Mark Green, who‘s now president of the New Democracy Project.

Let me ask you this, Ben:  what is the significance of the charge that top people around the president, Karl Rove and “Scooter” Libby, the vice president‘s chief of staff, were pushing out the identity of Joe Wilson‘s wife? 

BEN GINSBERG, FMR. BUSH/CHENEY ‘04 COUNSEL:  Well, I‘m not sure that‘s what really happened.  I mean, that‘s been the charge all along.  But—

MATTHEWS:  What could have happened today?  Based on what‘s in the paper, how could it be something else than what I‘ve just said?  Tell me what else it could be? 

GINSBERG:  Suppose a reporter calls up a source in the White House and said, hey, have you heard why did Joe Wilson end up being the one who was sent over there?  That doesn‘t mean it was the White House official who then put out her name, or violated the law, by knowing that she was a covert operative.  You‘re jumping to conclusions.

MATTHEWS:  So what‘s—no, no, no—what is necessary for that conclusion, beyond what we know today?  If we know that they said it‘s his wife, who has got him sent on this trip and she works for the CIA, what more do you have to know, to know that they broke the law? 

GINSBERG:  That they deliberately knew she was an undercover agent is one of the parts (ph) in the law.

MATTHEWS:  So it‘s her status that distinguishes—that makes it a crime? 

GINSBERG:  I‘m not buying into your presumption—I‘m not buying into your presumption that that‘s the way the conversations went, Chris, and that makes a difference in a case like this. 

MATTHEWS:  Well I‘m reading the newspapers; do you know something beyond the fact that it‘s all been reported? 

GINSBERG:  No. 

MATTHEWS:  Okay.

GINSBERG:  I know that the “New York Times” and the “Washington Post” reported very different versions of what those conversations may have been like.  And given the differences between the two, I think you can assume that we don‘t know what those conversations were. 

MATTHEWS:  Okay, separate the two papers‘ reports as to what in fact “Scooter” Libby, for example, the person identified today in the Grand Jury testimony, as the source to Judy Miller—how was the account made differently in the “Times” and the “Post?” 

GINSBERG:  Well the “Post” essentially went for the notion that Judith Miller raised the question of why Joe Wilson was sent on the trip.  “Scooter” may or may not have known that.  According to the “Post” account, as I remember it, he was not—he was not saying it was Valerie Plame.  And she—

MATTHEWS:  What do you mean, he wasn‘t saying—wasn‘t he saying it was his wife?  Wasn‘t he saying it was his wife, in both cases? 

GINSBERG:  Well, whether he said—no, I‘m not sure that‘s what the “Post” reported.  But I don‘t want to take a quiz on what I remember from reading the “Washington Post” this morning.  The point is, there were differing versions, Chris, and if there are differing versions in America‘s two greatest newspapers, let‘s assume that we‘re not sure what those conversations were.  That‘s what the Fitzgerald report will be about. 

MATTHEWS:  So you think it‘s possible—you‘re arguing the possibility that despite the coverage, there is in fact no real evidence that “Scooter” Libby told Judy Miller of the “New York Times” that the person who got Joe Wilson sent on this trip to Niger to check out the uranium story was his wife?  You‘re denying the essence of that? 

GINSBERG:  I‘m arguing that we don‘t know what the conversations were.  And I think it‘s unfair to be guessing that in conversations that we don‘t know what actually happened, to go out on the air and say somebody violated the law.  That seems to me not to be the right way to go about this. 

MATTHEWS:  I‘m asking you—it‘s a question whether you think it‘s a violation of the law and you‘re saying it‘s not because she wasn‘t—even in the toughest assessment of what happened—identified as an undercover agent, right? 

GINSBERG:  I‘m saying when we know what the true facts are, as established by the—

MATTHEWS:  Ok. 

GINSBERG:  -- Special Prosecutor, then we‘ll answer the question.  But let‘s not go so smearing people‘s reputations before then.

MATTHEWS:  Ok, you want to get a complete conviction before we move on. 

Let‘s go to the Conservative Advocacy Group. 

GINSBERG:  I want to know what the facts are. 

MATTHEWS:  That‘s what I‘m trying to get from you—that‘s called a question, a minute ago, Ben.

GINSBERG:  But I want to know the facts.  I‘m going off two newspapers. 

MATTHEWS:  You‘ve got better sources than I do, Ben, I‘ll tell you that. 

Let me go tight now to Mark.  Mark Green, what‘s the significance of this, the fact that Judy Miller testified today that she was told by the chief of staff to the vice president, that Valerie Plame, the wife of Joe Wilson, got him sent on the trip? 

MARK GREEN, NEW DEMOCRACY PROJECT:  There‘s a legal test and there‘s a journalistic test.  Legally, Ben is right, we‘ll know if there‘re indictments, because they potentially violated the 1980s law, or because they‘ve lied under oath.  But the journalistic test is a year and a half ago, Bob Novak and the “Washington Post” reported that several—more than one—top White House people had spread around the fact that Valerie Plame, Joe Wilson‘s wife, was in the CIA, in order to slime him, because he was a credible critic of the administration on Iraq.

The larger issue though, is the political impact on what we‘re here to talk about, the Supreme Court.  President Bush is so weakened—remember when Bush and company came to Washington to “bring back honor to the White House, so help me God”?  Well they‘re now six people under indictment or serious investigation.  Congress or the White House.  From Abramoff to Frist to DeLay to the procurement officer to Rove and Libby, who are a step ahead of the sheriff. 

If this is not a culture of potential corruption, given the dry bones that Newt Gingrich tried to argue 11 years ago against Democrats, now the shoe is on the other foot.  And when—as Bush nominates somebody, he‘s 20 points less respected and less favorable than Bill Clinton and Ronald Reagan, at the same time. 

MATTHEWS:  Can you name a conviction, Mark? 

GINSBERG:  Thank you, Chris. 

GREEN:  Hold on—hold on.

MATTHEWS:  Can you name a conviction? 

GREEN:  One second.  What I said was six people—three have been indicted.  By the way, Chris, if you and I have been indicted, it doesn‘t mean we‘re guilty.  But I wouldn‘t trade places with them.

MATTHEWS:  No, no, no—I just want to know, when you‘re calling an administration “has a culture of corruption” I think you need one case of proven guilt, don‘t you?  At least one case of proven guilt. 

GREEN:  Fine, the House Ethics Committee three times has said that Tom DeLay has acted unethically.  He‘s now been indicted.  Abramoff has been indicted. 

MATTHEWS:  But he‘s not an official in this administration.

GREEN:  By the way, one more point.  One more point, Chris.

MATTHEWS:  Abramoff doesn‘t work for the administration, and his behavior, which he‘s been accused of, was outside his capacity as a former aide to Tom DeLay.  It was all private behavior. 

MATTHEWS:  Chris, what I said earlier was under the legal test, we‘ll wait to see if there are more indictments or convictions.  At the moment—you know, 11 years ago, Jim Wright wasn‘t convicted of a crime—he played with money and he sold a book that wasn‘t really a book—based on that, politically as we know, Newt Gingrich rallied his side and the Republicans took over the Congress.

My point is this bleeds President Bush politically in terms of his appointment now.  And I think it‘s pretty hard to deny that given the number of serious indictments, the slapdown of DeLay by the House Republicans and the Ethics Committee themselves. 

MATTHEWS:  Jim Wright received $75,000 for that book.  Can you name anybody in this administration who has received one dollar in corrupt money, personally? 

GREEN:  One second.  Since when is only self-interested money corrupt?  One second.  How about political corruption?  $190,000 went into a fund from corporations that passed through a White House aide that then went to Texas Republicans trying to control the Republican delegation. 

MATTHEWS:  Nothing passed through any White House...

(CROSSTALK)

MATTHEW:  I got to got Ben, one second here.  Ben, quick.

GINSBERG:  Well, John Roberts was just approved 78-22.  That is not a weakened president.  Number two, Mark can answer the questions about—that you correctly asked about political corruption.  What you have here is the Democrats smear machine, because they have no positive agenda.  They cannot tell you what they‘re for.  And so therefore, all of these folks are capable of doing like Mark is, is a smear attack that‘s not valid. 

MATTHEWS:  OK, it could be possible, by the way, gentlemen, there could be corruption.  And the Democrats don‘t have an agenda.  Both could be true. 

Anyway, thank you, Ben Ginsberg, thank you, Mark Green. 

Coming up, the fight over the Supreme Court even though President Bush hasn‘t made his pick yet.  Well, he may be making it quick.

Plus, Judy Miller out of jail now and talking to the prosecutor.  What‘s next for the CIA leak investigation now that she‘s nailed the chief of staff of the vice president.  HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  For two years we have tried to figure out who Judy Miller of the “New York Times” source has been in terms of what she was reporting here.  In fact, she never actually reported it.  She simply had a conversation with somebody, we didn‘t know who, about the identity of Joe Wilson‘s wife. 

Well, it turns out she says it‘s Scooter Libby, the chief of staff to Vice President Cheney.  She did so in four hours of testimony today before the grand jury. 

So what‘s the politics of the CIA leak case as well as to who President Bush may choose to replace Judge Sandra Day O‘Connor.  Two big questions.

Steven Hayes is a senior writer with the “Weekly Standard,” and Chuck Todd, editor-in-chief with “The Hotline.”

Let me ask you this.  Let‘s start. We‘re going get into a fight here but maybe we can avoid it here.  The political megatonnage of this disclosure that Judy Miller believes she got the information that‘s caused all this trouble from the chief of staff to the vice president. 

STEPHEN HAYES, “THE WEEKLY STANDARD”:  I‘m not sure we can go that far yet.  I think we‘ve known for months that she talked to Scooter Libby.  I don‘t think there was any question about that.  That was widely reported before she went to jail.  The question that remains...

MATTHEWS:  By the way, (INAUDIBLE) Scooter Libby didn‘t know it because he has maintained through his attorney yesterday that he never knew he was her source and the reason she was in jail all this time.

HAYES:  Well, I think there was speculation, I should say.  There was media speculation that Scooter Libby was her source.  Or that he, at least, talked to her. 

MATTHEWS:  Now we know.  She says he‘s her source. 

HAYES:  It‘s unclear that he gave her any information.  We still don‘t know that yet.  Did he give her information?  Did she mention it to him?  There‘s so much we don‘t know about this investigation.  I think what we know publicly is a fraction...

MATTHEWS:  Do you buy that assessment, Chuck, that we don‘t know that she had him as a source? 

CHUCK TODD, “THE HOTLINE”:  My problem is Judy Miller is a distraction in all this.  She was not in front of a grand jury.  She was grandstanding.  She‘s trying to get probably a book deal out of this.  And she just loved being a martyr.  She was way too...

MATTHEWS:  How do you know these motives?  How do you know these motives?

TODD:  Because she never reported the story.  Why suddenly she‘d inserted herself into this investigation?  That‘s what I‘ve never understood.  She really shouldn‘t be a part of this investigation.  This should be centering on Novak, this should be centering on people that did actual reporting, Matt Cooper.  How she got involved in this has always been bizarre to me. 

MATTHEWS:  But she was called to testify by Fitzgerald, the special prosecutor.  It wasn‘t her decision to be called. 

TODD:  Right.  But at the same time, apparently, at least according to Scooter Libby‘s attorneys, she had a waiver for over a year.  But she chose to go to jail. 

MATTHEWS:  So everybody is watching, trying to figure out (INAUDIBLE) we‘re talking about. 

The fact that the president used an argument in his “State of the Union” that the British had reported that there was an attempt by Saddam Hussein before we went to war to buy uranium materials in Africa. 

It later turned out that that apparently wasn‘t the case.  It could have been the case, but it wasn‘t the case based upon the trip down there by Joe Wilson who wrote an article in the “New York Times” saying he couldn‘t find any evidence of any deal to buy uranium down there. 

And yet that was allowed to get into the president‘s State of the Union address.  That became a scandal at the time two years ago.

The question is how did we know, all of us, that his wife was the one who put him on the trip?  Because she worked with the CIA in an undercover capacity.  That‘s the leak story, right?

Suppose it turns out there‘s no convictions.  That‘s good news for the White House, right?  No indictments?

If there are indictments, what‘s the implication? 

HAYES:  Well, if there are indictments, I would think it‘s bad news for the White House.  I mean, it depends what kind of indictments we‘re talking about. 

(CROSSTALK)

TODD:  I don‘t think it matters.  Indictment right now in this environment?  We just had the number two leader in the House indicted.  The SEC, Securities and Exchange Commission is investigating the top leader in the Senate, Republican.  You have the third sort of power structure of the Republican Party, let‘s say a Rove or Scooter Libby or somebody in the White House, indicted?  Just those words?

The floor that Republicans think that they‘ve hit right now, the bad floor, the floor is going to get lowered again.

MATTHEWS:  Can the vice president operate without Libby? 

HAYES:  Yes.  I think he could operate. 

MATTHEWS:  Can the president operate without Karl Rove? 

TODD:  No.

MATTHEWS:  He can‘t? 

TODD:  I don‘t think ...

MATTHEWS:  Do you buy that, that‘s he‘s indispensable?

TODD:  Oh, yes.

HAYES:  No, I think nobody is indispensable, nobody is irreplaceable.  I mean, these are people who they‘ve grown accustomed to, that they‘ve worked with for awhile. 

MATTHEWS:  All right.  And the reason I ask that is once you‘re indicted, you‘re really of no use to anybody until you‘ve cleared your case.  You‘ve got to go off and fight your case to save your freedom, right?  You can‘t stick around under indictment, can you? 

HAYES:  Well, I think you could stick around under indictment.  I wouldn‘t recommend it.  I would recommend any ...

TODD:  I‘ll say this.  Look ...

MATTHEWS:  We‘ll be right back.  We‘ll be back to talk about the Supreme Court because it‘s a hot question.  A moderate conservative now has to be replaced, as opposed to a true conservative.  It‘s tougher to make the appointment for the president.  Who wants to name a conservative?  Chuck Todd and Stephen Hayes will be back in a minute.

(COMMERCIAL BREAK)

MATTHEWS:  Well, no news for a while, then lots of news.  We‘ve got—the CIA leak thing was just broken after two years.  Now the woman is out of jail.  And, of course, Chuck Todd is back to talk us with Stephen Hayes about this new judge Monday.  Who‘s it going to brMD+BO_rMDNM_e?  What kind of person is going to be?  Male, Female, White, Black, Hispanic, Anglo, who? 

HAYES:  What I am hearing is—what I am hearing is they‘re ...

MATTHEWS:  I covered all the bases.

HAYES:  ... are not concerned about fitting a particular category.  The White House is not concerned about fitting a woman slot or a minority slot or—they are going to make the determination based on who the president feels most strongly ... 

MATTHEWS:  The president said though—it was little bit of bad English to some, but he did say had a diverse candidate in mind or something. 

HAYES:  Yes, well, I am not sure that is what he meant to say. 

MATTHEWS:  Well, he must have meant diversity was one of his considerations.  That‘s what he meant.

HAYES:  Well, he said something about diversity being a good thing. 

But I think that‘s—it was more ...

MATTHEWS:  Do you buy this that his Supreme Court pick is a woman or a minority? 

TODD:  No, I mean, our source—the source that we have been talking to inside the White House said it‘s not going to be a white man.  This is, you know—just, you know, eliminate all the white males from the speculation and everything on now.  Maybe it‘s a head fake.  I don‘t know. 

MATTHEWS:  All right.  Let me go to the real Democratic tricks here, perhaps.  My sense is, watching this thing, the Democrats decide to give 22 votes, half the Democratic caucus let‘s say, so that they are all covered politically now, because every one of those 22 people, men and women, can now say, look, I gave them this good guy, this other guy was a sleazeball. 

This other guy didn‘t have it.  He‘s a right winger.  He‘s a nut, a flake—whatever the term is—a fringe candidate.  So they can‘t be blamed at home in even red states.  Does that sound like the strategy? 

TODD:  I don‘t think that‘s the strategy.  I think this is ... 

MATTHEWS:  Pat Leahy?  Chris Dodd?

TODD:  Well, Pat Leahy and Chris Dodd—I think those guys are pining for the old Senate, to be honest.  Those are old-timers.  Those are guys that miss the days when, hey, you know what?  They had drinks after 6:00 o‘clock at night. 

MATTHEWS:  Hey, I‘m fine for that, and I‘m not even ...

TODD:  You know, I hear you.

(CROSSTALK)

TODD:  So I think—no, I think they were—I think it was legit.  I think that—some of that stuff—look.  Were there some political votes?  Yes.  Bill Nelson, some of those guys were up in ‘06 in red states and they voted for Roberts.  That was about their own ... 

MATTHEWS:  I think the entire gang of 14 voted for this guy.

TODD:  That was about their own.  All but one, Inouye.  Inouye was the only one that didn‘t.  But he is Hawaii, and nobody cares.  But I think ...

MATTHEWS:  Why does nobody care? 

TODD:  Well, you know, Hawaii, it‘s not a—it‘s a very blue state. 

The blue islands, you know, blue Hawaii, right?  But you go with ...

MATTHEWS:  We‘re on in Hawaii, by the way, and you‘re not very popular right now.

(CROSSTALK)

MATTHEWS:  So if you have any comments send them to the hotline. 

(CROSSTALK)

MATTHEWS:  Let me go to this—so let me get this straight here.  What does he have to do politically with the conservatives?  Does he have to put in somebody to the right a notch or two from Roberts to get it OK with the conservative people like Tony Roberts or Tony Perkins, rather?  People like that?

HAYES:  The president has to pick a conservative. 

TODD:  More than Roberts?  More than Roberts.

HAYES:  He campaigned in 2000 -- yes.  I mean, there‘s some debate as to how conservative Roberts is.  I mean, we just don‘t know.

MATTHEWS:  You agree, it has to the notch of Roberts—a notch to the right of Roberts? 

TODD:  I heard you say the notch thing, I think two notches.  I think he‘s got to go—in fact I think the White House ...

MATTHEWS:  Why don‘t they get away with a male that ...

(CROSSTALK)

TODD:  I think White House wants a fight.  I think the White House wants a fight. 

MATTHEWS:  I think you do.  Why would they want a fight? 

TODD:  Because I think it gets all—it unites the party.  It gives them something to be for again.  It gives them to fight for an ideology. 

MATTHEWS:  In the end—in the end—in the end, Steve, is he right in the sense, if the president has to pick somebody and can only get 51 votes for them, he can‘t get 60, he can‘t break filibuster, will he go to the nuclear and go all the way and jam it through and change the rules? 

HAYES:  Yes, I think once he decides—once he makes the decision, and if he, in fact, picks a true conservative, as he has promised in 2000 and 2004 ...

MATTHEWS:  He‘ll go to the wall for them.

HAYES:  ... he will go to the wall.  Absolutely he go to the wall. 

(CROSSTALK)

MATTHEWS:  Do you buy that?  Go to the wall, nuclear option, break it up? 

TODD:  In fact, I think it‘s the only sound political strategy for the White House now to sort of recover from this. 

MATTHEWS:  So there‘s no way he can say never mind.  I didn‘t mean to

he can‘t pull back a nominee.  Once he goes, he has got to win. 

TODD:  Absolutely. 

MATTHEWS:  That‘s fascinating.

TODD:  Or he can lose, bit he‘s going to have to lose on principle.  He‘s going to have to lose where Lincoln Chafey (ph) follows (ph) up.  He‘s got to lose ...

HAYES:  He has to keep conservatives. 

TODD:  ... that way.  Exactly.  He can‘t lose conservatives.

MATTHEWS:  Can be pick somebody without a paper trail, someone like Harriet Miers from the White House, the counsel?  Can she be put forward as a conservative woman he has looked into the eye, to a nose is a true conservative, but doesn‘t give away the paper trail Democrats could exploit?  Todd.  Can he get away with that?

TODD:  I think, no.  I think the right is not going to let it.  I think the right wants the paper trail this time.  I think they want to see proof that this person is a conservative. 

MATTHEWS:  Priscilla Owen? 

TODD:  Priscilla Owen I think is exactly who the base will like.

MATTHEWS:  Friend of Karl Rove‘s, friend of the president‘s family.

TODD:  Priscilla Owen, Miguel Estrada, those would be home runs for the conservatives.

MATTHEWS:  You still let go of the idea that it has to be a woman or a minority? 

HAYES:  No, not necessarily.  I mean, from everything I have heard, it doesn‘t necessarily—they are not trying to fit a slot, and I hope they are not trying to fit a slot.  I mean, the president has done this before.  He said he picks the best.

TODD:  He wants to break the barrier.  I think he wants to go Hispanic. 

MATTHEWS:  OK, let‘s look at everything going on with the president right now.  He‘s got—he didn‘t get started fast enough with Katrina, but he‘s apparently picking up some numbers on that.  He‘s got a war which is just—all wars in America history, you know, get less popular as the years go on, unless there‘s a clear victory. 

He‘s got problems with Frist facing the SEC.  He‘s got problems with Tom DeLay going now basically back to Texas to win his freedom is what he has to—and win his re-election.  What kind of shape is he in?  Have I defined ...

HAYES:  Answer the question, didn‘t you? 

MATTHEWS:  I am asking as a conservative—give me some colors, some bells and whistles. 

HAYES:  It is precisely for the reasons you cite the president that has to pick a conservative. 

TODD:  Pick a fight. 

HAYES:  And I would say on his right flank, he has conservatives upset about ...

MATTHEWS:  Spending. 

HAYES:  ... the spending—particularly the spending.  And this has been, I think, something that has been rumbling for three or four years. 

MATTHEWS:  So this can circle the wagon, a good, conservative candidate for court. 

HAYES:  Absolutely.

MATTHEWS:  Circle the wagon and shift ....

HAYES:  In fact, he‘s right.  I mean, conservatives want something to fight about.  They want a backing.  They need a reason to ... 

MATTHEWS:  So if you‘re losing the hockey game, start a fight.  Clear the bench. 

UNIDENTIFIED MALE:  Pretty much ...

MATTHEWS:  Clear the bench.  Anyway, thank you, Chuck Todd.  Thank you, Stephen Hayes.  Join us again Monday night at 5:00 and 7:00 Eastern for more HARDBALL.  Right now it‘s time for the ABRAMS REPORT, with Dan.

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