updated 10/12/2005 10:22:18 PM ET 2005-10-13T02:22:18

Guests: Susan Molinari, Tony Perkins, Dick Sauber, Victoria Toensing, Sol Wisenberg, Norah O‘Donnell, Mike Allen

CHRIS MATTHEWS, HOST:  “New York Times” reporter Judith Miller is hauled back before the grand jury, and Bush‘s long time top adviser, Karl Rove, is headed back as well.  Let‘s play HARDBALL.

Good evening I‘m Chris Matthews.  The questions get bigger.  Did a so-called Iraq group in Bush White House that included Karl Rove and Scooter Libby sell the Iraq war with the claim that Saddam Hussein was buying nuclear materials from Africa?  Did this same inner White House group try to destroy Former Ambassador Joe Wilson for undercutting that claim? 

Did the same White House group act to cover up their activities by holding one reporter to her promise of confidentiality that slams her into jail for nearly three months?  And why would Cheney‘s chief of staff, Scooter Libby, and Judy Miller‘s source sit back while his friend and “New York Times” reporter spend nearly three months in jail? 

What or who was he protecting?  Huge questions about a painful unpopular war and the political warring here at home.  Tonight we try again to get the answers.  Here‘s HARDBALL correspondent David Shuster. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  It was a different tone today from “New York Times” reporter Judy Miller. 

UNIDENTIFIED MALE:  No comment. 

SHUSTER:  Unlike her first grand jury appearance two weeks ago, today Miller left the grand jury and walked by her media colleagues without saying a word.  According to sources close to Miller, she testified about notes she remembered and turned over only recently, notes related to a June 23, 2003, meeting between her and the vice president‘s chief of staff, Scooter Libby. 

At that meeting, Miller and Libby reportedly talked about Former Ambassador Joe Wilson.  On July 6, 2003, the “New York Times” published op-ed from Wilson undercutting White House claims Iraq sought uranium from Africa.  And in the wake of the column, Wilson‘s wife, Valerie Plame, was publicly revealed as a CIA officer. 

The meeting between Libby and Miller two weeks earlier is significant because it suggests White House officials were discussing Wilson for some time.  The question is, did they discuss his wife and is that grounds for an indictment? 

SOL WISENBERG, FMR. DEP. INDEPENDENT COUNSEL:  Once it‘s established that it is classified information and that you know it and that you‘re giving it to somebody who doesn‘t have the authority to receive it, you know, that‘s enough under the statute. 

SHUSTER:  And evidence of a plan would help prosecutor Patrick Fitzgerald prove intent, a crucial element in possible charges.  Adding to the potential problems for the White House, the “National Journal” reports the vice president‘s chief of staff, Scooter Libby, during his appearances at the grand jury never mentioned the June meeting with Miller. 

This follows admissions by lawyers for presidential adviser Karl Rove that in his first grand jury appearance, Rove never mentioned talking about Wilson with “Time” magazine reporter Matt Cooper. 

WISENBERG:  If Mr. Rove or Mr. Libby‘s or anybody‘s memory is particularly good on all other aspects of the questions he is asked, and then all of a sudden he has no memory of a particular conversation, that‘s an inference that can be taken into consideration. 

SHUSTER:  Legal experts point to another possible problem for Libby and Rove, the broad language of the Espionage Act.  Prosecutor Patrick Fitzgerald could argue the statute allows him to charge any official or citizen with a felony if they simply transferred classified information to reporters. 

WISENBERG:  I can assure you there are quite a few things that we think we know that we don‘t know and that there are a lot of things the grand jury is looking at that we don‘t have the foggiest idea about. 

SHUSTER (on camera):  And because of grand jury secrecy rules, nobody except the prosecutors and the panel know just how much evidence has been collected and where the case may be leading.  It‘s why Karl Rove may be walking a tight rope when he follows Judy Miller‘s appearance and testifies to the grand jury later this week.  I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thank you David Shuster.  As I said before this is about the Iraq war, the case made for that war and what happens to someone who challenges that case for war.  Joining me right now is Dick Sauber, the attorney for “Time” magazine‘s Matt Cooper.  Who has the worst memory, Karl Rove or Scooter Libby? 

DICK SAUBER, MATT COOPER‘S ATTORNEY:  It seems to be a bit of a toss up based on what I‘ve seen. 

MATTHEWS:  What do you think a prosecutor like Patrick Fitzgerald thinks about somebody who forgets—in the case of your client, Matt Cooper --  forgets a conversation with your client, and then all of a sudden he comes across e-mail subsequent to that meeting that very day, addressed to Stephen Hadley, the number two guys at national security and talks about the conversation. 

So his memory was sharp enough at that time to remember he just talked to somebody.  And only few weeks later he didn‘t remember it. 

SAUBER:  It does seem odd, but the conversation was a short one.  It was only a couple of minutes.  And it does seem unusual that Mr. Rove would have written an e-mail about the conversation and then testified once or twice or maybe three times that he never had the conversation.  So it‘s still a little confusing. 

MATTHEWS:  Because normally if you make any effort to remember something, you know, you use mnemonic devices like writing a note to somebody or scribbling out the memo, it‘s solid in your memory, especially to a guy with an IQ of about 160.  I mean, this guy Karl is one smart customer. 

SAUBER:  They all seem to be quite skilled at remembering certain things quite skilled at forgetting other things.  I do think that the fact that Mr. Rove appears to have come forward with the e-mail and said, voluntarily, now I do remember that there was a conversation—I don‘t know what Mr. Rove told the grand jury about the substance.  But ...

MATTHEWS:  But his keister is on the stove now. 

SAUBER:  It does seem ...

MATTHEWS:  He doesn‘t have much choice but to admit something after it‘s been found. 

SAUBER:  It would be a little difficult to do.  But ...

MATTHEWS:  You‘re being kind here.  Once the prosecutor in this case -

tough-minded prosecutor—discovers physical evidence that you did something, you might as well—it‘s like the blue dress with Bill Clinton, OK, there‘s a blue dress. 

SAUBER:  Well, it does seem as if at least the press accounts indicate the testimony seem to be grudging at best.  And when Judy Miller‘s notes now seem to state a prior conversation.

MATTHEWS:  There‘s a great question.  She discovers in her memory after 85 days in jail—and she‘s a very nice person, a friend of mine—but after 85 days in jail it does occur to her that she had earlier notes.  But maybe she went back and checked those notes and discovered she did—she had in fact made as a notation about a conversation with Scooter Libby about this very topic of Joe Wilson. 

But now we have much tougher situation for Scooter Libby, the vice president‘s chief of staff, because he has never admitted there were any such conversations, under oath. 

SAUBER:  That‘s true.  But I think you have to be careful that Mr.  Fitzgerald‘s focus all along was on a period in July.  And it‘s very possible that he asked Judy and the “New York Times” for their conversations just about that period, that was the focus.

Fitzgerald had nothing to indicate that there were prior conversations and so he asked about that.  At some point in the grand jury he might have said, have you had prior conversations with Scooter Libby?  And she said, let me go back and look through my notes. 

MATTHEWS:  When you‘re under oath to tell the whole truth, don‘t you have to help the prosecutor out a little bit? 

SAUBER:  You don‘t have to help the prosecutor.  And Fitzgerald‘s questions might have been very pointed, but I think he‘s a bright enough guy and skilled enough prosecutor to have asked some open ended questions which would have evoked these answers. 

MATTHEWS:  Your client, Matt Cooper, from “Time” magazine, testified finally after he got a release from his source, Karl Rove, that they had in fact conversations.  Your client has testified, I believe, that he had conversation with Scooter Libby, the chief of staff of the vice president as well.  So he knows two sources. 

SAUBER:  Right. 

MATTHEWS:  Under oath now he‘s identified them.  What more is there to this case than to know that there are two people—the chief of staff of the vice president, the chief political ramrod of the president—out there spewing the story about Joe Wilson‘s wife.  Why do we need to know more than the fact that the White House did it? 

SAUBER:  Well, I think there are a couple of questions.  The first question is, where did the information come from identifying Ambassador Wilson‘s wife as a CIA employee.  So far we don‘t have any indications. 

MATTHEWS:  But if it‘s classified by nature, it doesn‘t matter how they came upon it because you could break the law by putting out classified information. 

SAUBER:  Absolutely.  But I think some of the early stories that some of these people put out were that they heard it from a journalist, they couldn‘t remember, they heard it from an aide ...

MATTHEWS:  That won‘t protect them against the Espionage Act, will it? 

SAUBER:  It‘s unclear whether it would or not, because passing back and forth information that is not clearly classified may be a defense.  I think the more likely scenario is that they saw some—the article that Nick Cristof (ph) wrote in may, asked who this ambassador was, and got the information.

It was identified to them I presume as classified since it was.  And the release of that information may be precisely what Mr. Fitzgerald now looking at after all these years. 

MATTHEWS:  Why do you think these people—you have a very strong firsthand experience with Karl Rove, the president‘s chief of staff, because he finally did release your client to speak.  Right? 

SAUBER:  Yes. 

MATTHEWS:  What finally made him do it?  What human impulse said to Karl Rove, damn it don‘t make this guy go to jail.  He‘s a good guy.

SAUBER:  I‘ve never spoken to Karl Rove, so I can‘t tell you.  All I know is that Mr. Rove‘s lawyer was quoted in the “Wall Street Journal” as saying, if Matt Cooper is going to jail, he‘s not going to jail for Karl Rove. 

MATTHEWS:  Bob Luskin, the attorney, yes.

SAUBER:  Yes.  I took that as an invitation to pick up the phone and say if that really is the case, give us a personal and direct waiver so that Matt can testify. 

MATTHEWS:  Well, Scooter Libby‘s lawyer waited for about 85 days to say, I didn‘t know I was the source that she was protecting.  Do you find that credible? 

SAUBER:  I don‘t really know what happened between Scooter Libby and Judy.

MATTHEWS:  Well, what do you think is the difference between Karl Rove having the human impulse or whatever to release your client, Matt Cooper, to speak about this big leak case, and the impulse that kept Karl Rove from doing the same exact thing? 

SAUBER:  A couple of things.  One, I never got a call from Karl Rove‘s lawyer as Matt headed off to jail.  So I had to pick up the phone, and call Karl Rove‘s lawyer and ...

MATTHEWS:  Are you saying that Bob Bennett dropped a—missed a chance here to get his client out?

SAUBER:  No, no, no.  Not at all.  No, not at all.  I think he did absolutely the right thing.  But we picked up the phone and called Scooter Libby also ...

MATTHEWS:  What did he say?

SAUBER:  And he said absolutely.  You have my waiver and...

MATTHEWS:  So he was clear with you guys, though, he wasn‘t going to...

SAUBER:  There was no hesitation.  There was no—I didn‘t think—no reluctance to go ahead and...

MATTHEWS:  Was the nature of the conversation between your client, Matthew Cooper, and Scooter Libby significant enough for him to want to keep it secret—as you look back on it? 

SAUBER:  No, not at all.  And he didn‘t keep it secret.  Matt spoke about it in his article.  Scooter Libby, so far as we know—and his lawyer—never expressed any reluctance or any hesitation about the complete voluntary nature of his waiver. 

MATTHEWS:  Let‘s talk lawyer talk.  This is a big story, I do believe it‘s about the war in Iraq, how it was argued, how it was questioned by Joseph Wilson, and what steps were taken, whether it was hardball or breaking the law, to bring down Joe Wilson‘s credibility. 

But let me ask you about question of law.  Karl Rove has been called before the grand jury a fourth time.  Here is the president‘s top political guide, what some people call—his critics—his brain who brought him all the way as his top political operative all the way from Texas to the White House for a second term. 

Why would a guy be called back to a grand jury for a fourth time as he has been? 

SAUBER:  Well, I don‘t think it‘s a good sign that he‘s been there four times. 

MATTHEWS:  Well, that‘s British understatement. 

(LAUGHTER)

Give it to me in American.  It‘s not a good sign.  In other words, it‘s a bad sign?

SAUBER:  It‘s a bad sign.  But it‘s not as rare as you might think. 

MATTHEWS:  Who wanted to come back?  Did he want to come back? 

SAUBER:  Well, this last appearance is interesting.  I think what happened is Matt Cooper testified and then he publicized the fact that Karl Rove was his source.  Karl Rove‘s lawyer, as any good lawyer would do, wrote a letter to Mr. Fitzgerald said, “Look, I understand now that Matt Cooper testified about the discussion.  If you want to talk to Karl Rove, he will voluntarily come in and answer.

MATTHEWS:  Is he going to say his previous statements were inoperative?  Obviously, this is the first time he‘ll have come to court into the grand jury since your client testified. 

SAUBER:  Yes. 

MATTHEWS:  So now he has to come in and deal with the fact that your has client said something he‘s never admitted before, that he leaked the name of Valerie Plame to him.  This is hot stuff. 

SAUBER:  This is—I think it‘s...

MATTHEWS:  This is the central question. 

SAUBER:  It is the central question.  But when you say to me:  Is he going to come in and say it‘s inoperative, I‘m always amazed. 

It seems as if there‘s a city in this country somewhere where people grow up and they‘re not told anything about Watergate.  All mention of Watergate‘s taken out of the newspapers, the history books, and they grow up and they come to Washington.  And they relive the same story...

MATTHEWS:  The cover-up.

SAUBER:  Right, the cover-up always seems to be the worst aspect of it.  Not to get all the facts out at the beginning is always a mistake.  And it just seems, as you read the accounts of what‘s happening here, that we‘re reliving the same history. 

MATTHEWS:  Well, let‘s be a little more sophisticated.  Let‘s assume that their president said whoever leaked the name of this undercover agent in the CIA will be taken care of.  So they heard the president‘s words, said, “Damn it, I‘m not going to admit to the president that I did it and I‘m not going to do it in some grand jury that will get back to him.”

There was a motive for them to cover up. 

SAUBER:  Absolutely. 

MATTHEWS:  So it isn‘t like a stupid donkey trick they pulled.  I mean, they definitely knew that, if they talked, the president would fire them. 

SAUBER:  Yes.  But these are not people who are going to be on welfare if they get fired from these jobs.  These are people who have the economic...

MATTHEWS:  Could there be people that thought that your client, Matt Cooper, would then go along to jail nicely and not complain and not even ask for deliverance as did he—or as you did—and they‘d keep the secret for them. 

Maybe sometimes lying works.  Bill Clinton lied for a long time and got away with it. 

SAUBER:  You know, I don‘t know the answer to that.  I would never have relied on the fact that I talked to three or four people that I hardly knew and expect them to keep me from going to jail. 

MATTHEWS:  Well, I don‘t think that‘s relationship between Scooter Libby and Judy Miller. 

SAUBER:  No.  But it‘s the relationship between my client and some of these people.  He was a reporter.  He didn‘t know them personally.  And, at the end of the day, he asked them...

MATTHEWS:  Where‘s the prosecutor headed?  Is he looking for obstruction of justice?  Is he looking for perjury for the espionage act?  What is he going to look for here?

SAUBER:  I‘m not exactly sure.  I think that the statute about releasing the name of an undercover agent would be difficult in these circumstances—for all the reasons people have talked about. 

MATTHEWS:  The 1982 act, yes. 

SAUBER:  The ‘82 act.  It does seem to me that people have testified inaccurately in the grand jury. 

MATTHEWS:  You‘re being kind. 

SAUBER:  And whether Mr. Fitzgerald can muster the case...

MATTHEWS:  Does Mr. Fitzgerald strike you, going as he‘s going up to Chicago organization in the city out there, going after Lord Black, going after Governor Ryan—does he seem like the kind of a guy who means business here?

SAUBER:  It‘s hard for me to think he would have kept Judy Miller in jail for four months and then said, “Never mind” and gone home. 

MATTHEWS:  So he‘s got a case to make?

SAUBER:  That‘s where it seems to be headed. 

MATTHEWS:  Is this White House coming down? 

SAUBER:  I think people are going to get charged, but...

MATTHEWS:  Top people? 

SAUBER:  It seems to me that‘s where this headed, yes.

MATTHEWS:  Scooter and Karl?

SAUBER:  It‘s hard to say. 

MATTHEWS:  But you‘re getting there?

(LAUGHTER)

SAUBER:  Mr. Fitzgerald, I think, is heading in that direction. 

MATTHEWS:  OK, well thank you very much.  Dick Sauber, thanks for all this.  Matt cooper will be guest on “The Abrams Report” tonight and tomorrow night at 6:00 Eastern here on MSNBC. 

We‘ll have much more on Judith Miller‘s testimony today in the grand jury and Karl Rove‘s fourth trip to the grand jury later on in the show tonight. 

Coming up, President Bush says religion, we made it clear now, is one of the reasons why he chose Harriet Miers to be on the Supreme Court.  People were looking for a reason.  Meanwhile, some defenders say she‘s a victim of sexism.  One of them was the first lady. 

We‘ll debate that one ahead.  You‘re watching “Hardball” on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Gender and religion have dominated the Harriet Miers nomination so far.  Is she being unfairly criticized because she‘s a woman?  And will her membership in a Christian Evangelical church be a help or a hindrance?

Here‘s what the president said, today.

(BEGIN VIDEO CLIP)

QUESTION:  Why do people in this White House feel it is necessary to tell your supporters that Harriet Miers attends a very conservative Christian church?  Is that your strategy to repair the divide that has developed among the conservatives over her nomination?

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  People are interested to know why I picked Harriet Miers.  They want to know Harriet Miers‘ background, they want to know as much as they possibly can before they form opinions.  Part of Harriet Miers‘ life is her religion.  Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas.

MATTHEWS:  Sometimes being president doesn‘t look like much fun.

Tony Perkins is president of the Family Research Coouncil.  Susan Molinari‘s a former GOP congresswoman from New York and now heads the lobbying firm the Washington Group. 

Religion:  Tony Perkins, do you think religion is an important factor in selecting any public official for any office in our Constitution.

TONY PERKINS, FAMILY RESEARCH COUNCIL:  Should not be a qualifying factor.  There should be no religious test.  We have argued against those on the Senate that try to disqualify people based on religion, and on the same hand I don‘t think it should be used to qualify someone.  I think what we had in this situation is that because there was so little known about this nominee they were trying to describe who she was, what she stood for, and that was used.  I think it was a mistake. 

MATTHEWS:  Is the president off key here in trying to woo the conservatives to support this nomination initially—have to get to the Democrats later—by saying she‘s a religious woman?  That doesn‘t seem to be striking a bell. 

PERKINS:  No, because so many us for a long time have argued that there should not be a religious test.  There should not a religious test. 

MATTHEWS:  But he‘s trying to suggest that since she‘s a cultural conservative, an evangelical, she‘ll fight Roe v. Wade, she‘ll make certain decisions.  Isn‘t that what he‘s trying to do?

PERKINS:  But it‘s being presented in the absence of solid evidence to show a judicial philosophy.  They‘re trying to bolster the case for her.  We have not taken a position on Ms. Miers; we‘re taking a wait and see until there‘s more evidence that‘s out there.  That in and of itself is not evidence to base a decision on one‘s judicial philosophy. 

MATTHEWS:  I‘m watching Arlen Specter, the chairman of the committee, with great fascination.  He‘s offered up ideas like, We‘ll begin hearings when she says she‘s ready.  Now he‘s changed that—it‘s now going to be a month from now.  He is certainly keeping his powder dry.  What about moderate Republicans, that you used to be one of when you were active in politics—people like Linc Chafee from Rhode Island and the two women senators from Maine and Specter—are they happy with this public claim that one of the great things about this candidate is, she‘s an evangelical. 

SUSAN MOLINARI, FMR CONGRESSWOMAN:  I haven‘t talked to them.  I think I agree with Tony.  I think the smart thing for any United States senator to do right now is to wait and see.  There is not a lot known about Harriet Miers.  She is going to be given her opportunity to express her views and positions and her philosophy before the United States Senate.  That‘s how it‘s supposed to work. 

Quite frankly I think those who are coming out with harsh judgment before they have heard from her—and Senator Specter is the first one who has advanced this—let‘s just wait and hear what she has to say. 

MATTHEWS:  Let me ask you about the issue of gender, Miss.

MOLINARI:  Yes.  That‘s Ms. to you. 

MATTHEWS:  Let me ask you—the first lady was asked about it, and she said possibly that she‘s a victim of gender discrimination.  And then of all people Eleanor Smeal—I said, this is first time in history that Laura Bush and Eleanor Smeal have found common ground.  She‘s been much more ardent about this, saying she is a victim of sexism.  Is that just her waving her battle axe, Eleanor Smeal, just saying this is a good chance to fight for women no matter what the truth is, or do you believe that she‘s getting different and tougher treatment than a male candidate would be getting? 

MOLINARI:  I think it depends on who we‘re talking about.  There are some people who clearly say, this was our moment to establish the conservative court and we don‘t know who she is or what she stands for at this point.  These are people who have supported Edith Clement and other conservative women. 

MATTHEWS:  So it‘s not gender.

MOLINARI:  I do think there are some people who are dismissing her readily and saying I‘m not comfortable, she‘s not qualified, she‘s not intellectually capable.  All these problems because they do have some gender problems. 

MATTHEWS:  Is this one of these old yesterday kind of things, like the weaker sex, and by the fact she‘s a woman, she‘s more easily shifted?

MOLINARI:  For some—not for—not for everybody.  But for some clearly. 

MATTHEWS:  Why do people believe that—I wouldn‘t believe it—why would you believe that a woman would be more easily encouraged to move to the left like so many male judges have. 

PERKINS:  I discount that.  There might be a few out there that hold that view.  But I think it‘s a very disingenuous argument.  It‘s like the left uses the word racist to just end all debate. 

MATTHEWS:  The race card.

PERKINS:  They use the race card.  I think what you have here is, instead of engaging in legitimate debate about qualifications of a candidate, you have these charges of, that‘s sexist, that‘s elitism. 

MATTHEWS:  Clarence Thomas—and I‘ve never criticized the guy—

Clarence Thomas referred to a hi-tech lynching when he was gone at.  That worked.  He did it on prime time television.  A lot of people go, whoa, I better step back.  Using that card, either the gender or race card, it‘s always useful. 

PERKINS:  You need to be very careful because it stifles public discussion. 

MATTHEWS:  That‘s why the people use it. 

PERKINS:  They do.  But I don‘t think the administration should be using that when people are raising legitimate concerns. 

MATTHEWS:  So you think it‘s wrong to use the gender card.

PERKINS:  Absolutely. 

MATTHEWS:  You think the first lady shouldn‘t have done what she did? 

MOLINARI:  She responded to a question. 

MATTHEWS:  No, but you think she should have stayed mum on that?

PERKINS:  I think this is a talking point put out by the administration. 

MATTHEWS:  You think the first lady was coached to say that? 

PERKINS:  I think that—I‘m hearing it from so many camps that are defending—

MATTHEWS:  Is that why he brought her into this conversation with that photo op at the Habitat for Humanity? 

PERKINS:  I don‘t know.  I just know that bringing up those issues stifles debate, which the public deserves to have, over the merits of this nominee. 

MATTHEWS:  Conservatives have the right to discuss their candidate, right? 

PERKINS:  Yes.

MOLINARI:  But I think there‘s also something that has to be missing.  That is that there‘s tremendous political—and rightly so—pressure on this administration to pick a woman.  And I think we have to stay focused on that. 

MATTHEWS:  That‘s called a quota system.

MOLINARI:  You know what, that‘s called we‘re 52 percent of the population or 80 percent of the—

MATTHEWS:  No, no, no—when you just pick a woman, rather than the right woman—affirmative action is going out to find a woman of equal caliber to the male candidates. 

PERKINS:  And there are many out there that are qualified.

MATTHEWS:  They didn‘t go to them. 

MOLINARI:  And there are many out there, and we don‘t know Harriet Miers is not one of them. 

PERKINS:  We don‘t know that.  We don‘t know that.

MOLINARI:  Let‘s wait and see.

PERKINS:  But there are others that we wouldn‘t even have to ask the question about it.  We would know.

MATTHEWS:  We‘ll be right back with more on the fight over Harriet Miers.  Continuing with Susan Molinari and Tony Perkins. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with former U.S. Congresswoman Susan Molinari and Tony Perkins from the Family Research Council.

Bill Kristol, a very brilliant guy and also a great propagandist, has put out the word that he thinks that Harriet Miers should fall on the sword.  In other words, save the president the problem of her not looking good in the hearings and withdraw.  Do you take that is a serious proposition, that somebody like her would ever withdraw after this build up? 

PERKINS:  I think it would be hard for this administration to pull back at this point.  Knowing the president, once he chooses a course, he sticks to it.  Whether or not Harriet Miers decides she doesn‘t want to go through with this and she pulled back, I don‘t know if she would do that. 

MATTHEWS:  In the late night grind around 4:00 in the morning she‘s going to say, I can‘t memorize all these cases. 

PERKINS:  It‘s going to be tough. 

MOLINARI:  I don‘t want the job.

PERKINS:  Put it in the context; she‘s got to follow John Roberts, who did a masterful job in the hearings before the committee.  She‘s met with some of the senators.  Some of the senators have not expressed overwhelming impressions. 

MATTHEWS:  Once again you‘re being very calming.

Let me ask Susan Molinari, does she owe womanhood a stick-tuitivness on this? 

MOLINARI:  That‘s kind of a heavy mantle to put on any woman. 

MATTHEWS:  That doesn‘t mean it‘s on her.

MOLINARI:  It‘s been on her since the day she stepped out of high school and really has been quite a crusader on behalf of women in business and politics.  I think she owes us some time to hear what she has to say.  This is not unusual.  There‘s ten justices that have appointed from the Executive Branch, 38 who had no judicial experience.  They were not decried or derided immediately as having no experience, no judicial philosophy.  The United States senators waited until they testified to hear what they wanted to hear or not.

MATTHEWS:  But does she carry the burden of being a woman for all womankind in saying if she drops out now because this is too difficult that it‘s going to halt the advance of women in our society? 

MOLINARI:  Well, I would certainly hope—and I have no inside information whatsoever—that if she did drop out, that the next appointment that the president would propose would be a woman. 

MATTHEWS:  Well, you are an important Republican voice so maybe that will happen. 

Susan Molinari—should it happen—anyway, thank you, Tony Perkins, once again. 

Up next, inside a grand jury investigation.  More on that.  What‘s the prosecutor in the CIA leak case looking for and where can it lead? 

Those questions keep bouncing around in Washington with big stakes. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

As we‘ve discussed, Judy Miller testified again in front of the grand jury and we‘re expecting Karl Rove to return soon. 

So what‘s it like to be inside a grand jury investigation? 

We turn to two people who have been there.  Former Justice Department official Victoria Toensing, and Sol Wisenberg, who was a deputy independent counsel under Ken Starr—famous name. 

Victoria, let me ask you, just if you can look through a glass darkly and try to tell us what do you think is going on with this effort by the special prosecutor bringing back Karl Rove or letting him come back for more testimony, going after Judy Miller again for more testimony before the grand jury?

What is he working toward as you watch him? 

VICTORIA TOENSING, FMR. DEP. ASST. ATTORNEY GENERAL:  Chris, at one point maybe about a month ago I would have said he‘s a lawyer who is dotting every I, crossing every T, he‘s just being thorough and he‘s telling the press, you wanted an investigation, I‘ll show you an investigation so that no one can say that I skipped any little beat in this thing. 

But I think recently, I have seen evidence that he has lost it.  He has gone over the edge. 

MATTHEWS:  How so?

TOENSING:  Well, I want to cite his letter to Joe Tate (ph), who is Karl Rove‘s lawyer—I mean, Libby‘s lawyer saying that because Scooter Libby didn‘t come out and jump up and down and say, hey, Judy, I really, really, really mean it when I‘m waving this I want you to testify.  That he must assume that Mr. Libby didn‘t want Ms. Miller to testify. 

Now, here Scooter Libby...

(CROSSTALK)

TOENSING:  ... has signed a waiver. 

MATTHEWS:  Her original lawyer said the same thing.

TOENSING:  Yes, but that doesn‘t have any—to assume legally that after somebody has signed a waiver that he doesn‘t want him to testify because he didn‘t come out and scream and yell to do something, most lawyers would be telling—I don‘t know if Sal agrees with me, but if I were Scooter Libby‘s lawyer I would say, you sign the waiver but you don‘t ever talk to the person; you don‘t make public statements.  Everybody in here is afraid to make public...

(CROSSTALK)

MATTHEWS:  So you believe if you were a reporter, Judy Miller or you were Matt Cooper, and somebody issued a blanket waiver that anybody I talk to is free to testify, you would act on that? 

TOENSING:  A whole lot of journalists did, didn‘t they?  A whole lot. 

Tim Russert, “Washington Post” reporters. 

MATTHEWS:  We don‘t know exactly what happened in all these cases.  I don‘t think we know.

TOENSING:  Well, wait a minute.  You just learned that in one of your last segments with Dick Sauber, who said they didn‘t have any trouble with Scooter Libby‘s waiver, signing of the waiver.  Didn‘t he?

MATTHEWS:  And you believe it was given without coercion, the waiver? 

(CROSSTALK)

MATTHEWS:  Their jobs didn‘t depend on...

(CROSSTALK)

MATTHEWS:  Didn‘t the president say he wanted everybody to make clear they had nothing to do with the leak? 

TOENSING:  And so, Chris—yes, and that‘s what the press all called for.  But it didn‘t—it wasn‘t any less coerced after he picks up the telephone three weeks ago than it would have been a year ago.  He still—either he‘s supposed to do it or not.

(CROSSTALK)

MATTHEWS:  What do you make of the prosecutor‘s case now, where you see him heading, calling these people back again and again before the grand jury, top White House people? 

SOL WISENBERG, FMR. DEP. INDEPENDENT COUNSEL:  Chris, that‘s not uncommon at all in this kind of a political, special counsel-type investigation. 

And Fitzgerald—even if he is seeming to be going over the top a little bit, remember, he‘s in a difficult position. He‘s appointed by a Republican administration and he doesn‘t want to be accused on the one hand of not turning over every stone and so he wants to be as thorough as possible. 

But I completely agree with Victoria, it‘s ridiculous to suggest that if your attorney tells another attorney that in his legal opinion it‘s a coerced waiver, that, that somehow is an obstruction of justice.  That won‘t wash. 

MATTHEWS:  Let me ask you both about the motivation of prosecutors, all right? 

If you‘re up against, whatever case it is, as complicated as this is, this leak case and it has to do with the war and the argument for the war somebody challenged the argument...

(CROSSTALK)

TOENSING:  It doesn‘t. 

It has to do with whether somebody violated the criminal law and gave a name of an undercover agent as defined by the law and whether that person knew that she was undercover. 

MATTHEWS:  And what would be the motive for doing that?

TOENSING:  Look, go back in time and just think about this a little bit.

When Bob Novak wrote his column it could just have easily been framed as he, Bob Novak was exposing nepotism.  But it didn‘t happen that way because the press didn‘t like President Bush and framed it all for poor Joe Wilson.  If a wife gets a husband an assignment and he doesn‘t have any experience in WMD and he doesn‘t have any kind of senior experience in the country, Novak thought he was exposing nepotism. 

MATTHEWS:  Yes?

TOENSING:  So why would every good reporter in town...

(CROSSTALK)

MATTHEWS:  Because the dispute between the people who have been called back before this grand jury, Karl Rove, the chief of staff to the vice president—I‘m sorry, Scooter Libby and Karl Rove have been called back, because the issue is about Joe Wilson‘s statement in the press, which started this whole thing that case for the war in Iraq was groundless. 

TOENSING:  Chris, you know what was happening with reporters at that time.  And you weren‘t one of them because I‘m not—that‘s not what you do, but the written press was going around saying, why Wilson?  Why Wilson?  And they were calling all over.  There were probably a dozen reporters around here saying, why would they pick that idiot because he wasn‘t well thought of, and we all know that, and if it wasn‘t for ... 

MATTHEWS:  Well, right, but that was a good way to discourage the trip, and fairly so.  A fair criticism of the fact he was picked by his wife for a trip. 

TOENSING:  So when somebody says his wife picked him, that would be fair game to get out.  Nobody—Novak never ...

MATTHEWS:  But the fact is the White House subsequent to this disclosure by Joe Wilson redacted, rather, they withdraw their claim of the 16 words in the president‘s state of the union.  Ari Fleischer did that, Stephen Hadley took the hit for it. 

So whatever you say about the reason he was picked for the trip, the result of his trip back from Africa was to basically discount the argument that there was a deal between Saddam Hussein and the government of Niger.  And that was a fact of life. 

And it‘s—by the way, it is to do with the war because that‘s what the result of the trip was.  Later on we have this legal case.  But the trip was to prove there was not—prove one way or another whether there was case for war or not. 

TOENSING:  But can‘t you see the vice president—being in the vice president‘s office, and call over to the CIA why did you pick this idiot, as they learned that he was? 

MATTHEWS:  Right.

TOENSING:  Oh, we don‘t know.  George Tenet says I didn‘t do it.  Oh my gosh, his wife did. 

MATTHEWS:  Let me put to you another question.  Why did the vice president raise the question about this possible deal between Saddam Hussein and the government of Niger and never follow up and try to get the answer as to what they may have found out?  That‘s a question I don‘t know the answer to.  And when I asked George Tenet he says, ask him, ask the vice president.  So I don‘t know what he had to say. 

I want to ask you about this whole question of where we‘re headed here in terms of the law.  What law—I‘m going to get the motivation, because you got me off the trail.  You‘re very smart.  You got me off the trail.  But let me ask you this. 

The motivation—if you‘re Patrick Fitzgerald and you get a sense that people aren‘t being forthcoming, they‘re not telling you the whole truth—for example, Karl Rove wrote an e-mail to Stephen Hadley, the number two guy at National Security Council talking about a conversation he had had with Matt Cooper of “Time” but yet couldn‘t remember that conversation when asked before the grand jury a couple of times. 

Scooter Libby, I couldn‘t recall or chose—maybe he wasn‘t asked the question, but never told about a meeting that he had with Judy Miller of the “New York Times” back in June of 2003.  And now we find out that she had that in her notebook.  What does a prosecutor do when he feels that somebody has been holding out?  Does that get him going or does that slow him down?

WISENBERG:  Well, a normal prosecutor who has a full docket in a major U.S. American city doesn‘t get too upset about this.  But if you‘re a special counsel—in essence he‘s acting as an independent counsel—and it‘s the only thing you‘re investigating, it really makes you mad.  And particularly when it‘s political and it‘s Washington you want to send  the message that you‘re not going to tolerate that. 

MATTHEWS:  And you don‘t want to live with the fact 20 years later saying those guys beat me by lying or covering up. 

WISENBERG:  That‘s right.  And, Chris, it‘s easier to prove perjury and obstruction of justice than it is the statute that Victoria helped derive. 

MATTHEWS:  And right now, they‘re sitting, looking at all these transcripts of these depositions and all this stuff before the grand jury that look for little differences, right? 

WISENBERG:  That‘s right.  But also remember you still—it‘s not enough that somebody didn‘t remember something or someone else testified differently.  You have to prove they intentionally lied. 

TOENSING:  And it has to be material. 

WISENBERG:  And somebody can be very craft.

TOENSING:  It‘s not Tuesday, oh, Wednesday.  It has to be material. 

MATTHEWS:  No, forgetting whole meanings may be an issue here ... 

WISENBERG:  It may be material.

MATTHEWS:  It‘s fun to fight with you because you sometimes beat me like just—anyway, thank you.  I don‘t think it‘s about the law.  I think it will be about what crimes are charged here but I do think it‘s about the war.  Anyway, thank you, Sol, it‘s great to have you in here, Sol Wisenberg. 

We‘ll be right back.  When we return, with conservative groups up in arms about the nomination of Harriet Miers to the Supreme Court, should Ms.  Miers withdraw her nomination?  That‘s what one guy, Bill Kristol, is calling for.  Should we take that seriously?  Will she ever think of that?  And how much damage would that be, would that cause to this president?  I think a lot.  This is HARDBALL only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  We‘re joined now by MSNBC‘s chief Washington correspondent Norah O‘Donnell and “Time” magazine‘s Mike Allen.  Let me just start with Mike for a second. 

Now, you‘ve written a lot about this leak case and I just find out this.  You‘ve got two people that have gotten a lot of attention in the last couple of weeks, and they got a lot of attention two years ago when first thing started—Karl Rove the president‘s number one political guy, and Scooter Libby, the chief of staff of the vice president. 

I want to ask you both about importance in this White House of the second guy.  We all know about Karl Rove.  What about Scooter Libby?  Who is this guy?  What role does he play? 

MIKE ALLEN, “TIME” MAGAZINE:  Well, he‘s the last person that talks to the vice president who is usually the last person who talks to the president about an important issue.  So he‘s maybe one of the least visible but most important officials. 

And, you know, if you talk about the war cabinet they were the staff component of the war cabinet.  They plan both the substance of what was going to be disseminated and helped plan the campaign for selling it to Congress and the public. 

MATTHEWS:  So, they were in the Iraq group, so-called, that put together the argument for the war, the case for the war publicly? 

ALLEN:  They were part of the authors of the case, absolutely. 

MATTHEWS:  And what role would they naturally play when confronted with the guy like Joe Wilson who said that their case for the war was all wet, that there was no deal with African countries to buy uranium yellow cake. 

ALLEN:  Well, the instinct there is going to be to punch back.  I mean, exactly when they decided that or how is not clear.  Chris, I have a little news for you.  They continue to argue, and their position is going to be if this becomes a public legal case, that the reporters leaked to them, that they—this information was conveyed to the White House officials not the other way around. 

MATTHEWS:  Will they do that on their own?  Will they name reporters under oath or just say reporters? 

ALLEN:  I don‘t know the answer to that. 

MATTHEWS:  Well, so far they haven‘t been able to come up with the name is as far as I know.

ALLEN:  Right, but there‘s a problem in that argument, and that is

grand jury has gotten testimony from State Department officials, including

as you know, Colin Powell testified.  This information had been requested about Joe Wilson by the White House from the State Department, so that‘s the problem in the case.

Rove is going to claim—you talked about naming reporters.  He‘s going to claim that Novak talked to this.  He thinks the fact that Novak told the information to him gives him an iron-clad alibi.

MATTHEWS:  OK.

Let me go to Norah. 

You covered the White House for a number of years and I want to ask you about the power relationships. 

My sense is that the vice president‘s office operates almost like, in our business, like a news desk.  It‘s sort of like where you go if you want to—it‘s sort of like they‘re the ones that monitor the business of the White House, they operate.  The president has almost a chief operating officer there, the vice president, Scooter Libby.

How do you see the role of Scooter Libby in this White House? 

NORAH O‘DONNELL, MSNBC CHIEF WASHINGTON CORRESPONDENT:  You know, I was just going to describe it that way, as the COO.  That in many ways that that‘s what Cheney‘s functioning office is, they get things done. 

And Libby is Cheney‘s right-hand man and has been his confidante for decades.  He‘s a man who knows a great deal about intelligence.  He has top-secret clearance.  And he talks to several distinct reporters and was largely involved in the selling of the war. 

If this White House were to lose Karl Rove and Scooter Libby, it would be devastating—no doubt about it. 

MATTHEWS:  Who would be left, Norah?  Who is left standing when those two pillars of the White House politically go down? 

O‘DONNELL:  Well, there is talk that Ed Gillespie, who was the former chairman of the Republican National Committee, who has been helping on the judicial nominations, the Roberts and the Miers matter at this, could come in as a potential chief of staff or in some other role. 

But clearly, if you‘re talking about the president‘s wise men, if you will, or even the vice president‘s wise men, there would clearly have to be a reorganization in the White House in terms of bringing in people, political people. 

There‘s plenty of people in there who know how to make the thing run and can do some of the communications.  But in terms of political operatives and wise men who have been around a while, they would have to do some work on that front. 

MATTHEWS:  Well, that‘s a big if.  But it‘s also an if that may be operative in the next couple of weeks if we get a slew of indictments coming down—coming up rather.  They say handing up indictments. 

We‘ll be right back with Norah O‘Donnell and Mike Allen (ph).

And a reminder, the political debate is ongoing on Hardblogger, our political blog Web site.  And now you can get podcasts of HARDBALL—I love this stuff—and listen to the show whenever you want or wherever you want.  Just go to our Web site, hardball.msnbc.com.

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Mike Allen of “Time” magazine and MSNBC‘s chief Washington correspondent Norah O‘Donnell. 

This morning, Norah interviewed Attorney General Alberto Gonzales.

And you asked him about the Miers nomination. 

Let‘s take a look at your interview with the A.G., the attorney general. 

(BEGIN VIDEO CLIP)

O‘DONNELL (on camera):  The conservatives have raised concerns about Harriet Miers.  Some have suggested she should withdraw her nomination.  Is she considering that? 

ALBERTO GONZALES, U.S. ATTORNEY GENERAL:  I can‘t imagine that there will be any kind of withdraw or discussions regarding withdraw. 

I think Harriet Miers, who I‘ve known for many, many years, is uniquely well qualified to serve on the Supreme Court.  I think the concerns are based upon lack of information and lack of knowledge. 

(END VIDEO CLIP)

MATTHEWS:  Well, Norah, he doesn‘t agree, but the reason you asked the question is because there‘s a buzz about that. 

O‘DONNELL:  That‘s exactly right. 

And there‘s not only a buzz about from people like William Kristol who‘s saying she should withdraw; there is a discussion up in the Senate about this.  And while the chairman of of the Senate Judiciary Committee, Specter says that she‘s receiving an unfair pummelling, his staff lawyers are saying that they don‘t like her and they are putting together a cheat sheet to try and trip her up and make a fool out of her when she comes up to the hearings. 

And that‘s the kind of really rough play that I think the White House is really shocked by that they would do and clearly are trying to tamp down. 

But the sense—you know, some have suggested that there is sexism involved or elitism involved—when you have your own Republican Party and members over there and staff lawyers saying that they want to take her down and embarrass her, that‘s significant. 

MATTHEWS:  Yes.

Mike, what do you think about that? 

Looks to me—I think Norah—I thought that—I didn‘t do the reporting and I thought that was coming.  That the staffers on the Hill, they‘ve already been proven, that the senators and his staff aren‘t as smart as John Roberts, so here‘s their chance to prove they‘re at least smarter than one of the candidates, the nominees. 

ALLEN:  It‘s—I‘ve never seen staffers get so much attention.

MATTHEWS:  Yes.

ALLEN:  It‘s like—them talking about taking the president to the woodshed is very bizarre.

(CROSSTALK)

MATTHEWS:  Because I think they want to prove their worth to these senators, that they can ask questions she can‘t answer, then they get a home run. 

ALLEN:  Yes. 

But, Chris, the other thing is they‘ve been involved in these courtesy calls—and you‘re hearing this—these courtesy calls did not go well.  You know, we‘re told the staff was making jokes about how ill-prepared they believe that she was.  She was unable or unwilling to answer basic questions about, is this case an important precedent, is that case an important precedent?

And that‘s why you have the drumbeat growing for the idea that maybe she should let this cut pass (INAUDIBLE). 

MATTHEWS:  Let‘s play defense for the president.

Didn‘t he go out and talk to a lot of U.S. senators, somebody told me 70 senators he talked to, someone.  They did a survey somehow and somehow her name did OK, didn‘t it? 

ALLEN:  It did.

And that‘s why I think it‘s very possible that the White House believed that this was going to be fine.  They believed that a woman...

MATTHEWS:  Harry Reid talked her up.

ALLEN:  Exactly. 

The fact that Democrats were for her, the fact that she was a woman, the fact that she was a conservative and the president believed that he knew her mind and heart and he was not going to have a Souter problem.

And I think that they knew that—I think that they believed that this was going to be OK. 

MATTHEWS:  Norah, you‘re reporting on the Hill.

How‘s it going?  Do you think that they really will try to intimidate her into falling on her sword now? 

O‘DONNELL:  Yes.

And again, you have to pet these senators, if you will, or coax them along. 

Where‘s Fred Thompson?  I mean, where is the—what they traditionally called as the quarterback, the old wise man that takes a nominee like they did Roberts up there and kind of, you know, helps everybody, shakes hands and know the senators, and make a couple of jokes if it gets a little bit kind of boring in the meeting or whatever. 

Where is—it‘s Ed Gillespie that‘s been up there.

So it has been clear that this nomination process has been bundled in many ways from a communications standpoint that I think is affecting Miers and judgments about her qualifications, and that may be hurting them. 

MATTHEWS:  Are there people in the White House who aren‘t playing team ball here as well, do you think, Norah; who aren‘t really helping in this dance? 

O‘DONNELL:  Well, I don‘t know that from my own reporting, but it has been reported that this is a split between Karl Rove and the White House chief of staff; that Karl Rove was not in favor of Harriet Miers‘ nomination; that this was something that Andy Card picked because he knew the president would like it. 

MATTHEWS:  Yes.

This is what happened to Dan Quayle, remember?  They didn‘t all like him and people like Jim Baker made it very difficult for him and he never out lived it. 

Anyway, thank you, Mike.

(CROSSTALK)

ALLEN:  ... nobody‘s going to intimidate her into doing it.  This will be a choice that she decides to make. 

MATTHEWS:  OK.  I guess that‘s right, by definition.

Anyway, thank you, Norah O‘Donnell, and thank you, Mike Allen. 

Tomorrow on HARDBALL, the man many conservatives wanted at the Supreme Court way back when, Judge Robert Bork.  He was Borked, you remember?

And on Friday, the 10th anniversary of the Million Man March.  Did it achieve its goals?  (INAUDIBLE) Russell Simmons is coming.  And Louis Farrakhan is coming here right now, right here on MSNBC.

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

Copy: Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant,Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Watch Hardball with Chris Matthews each weeknight at 5 & 7 p.m. ET

Discuss:

Discussion comments

,