updated 10/14/2005 10:35:53 AM ET 2005-10-14T14:35:53

Guest: Kate O'Beirne, Bob Herbert, Jim Vandehei, Charles Pickering, Robert

Bork, Craig Crawford

CHRIS MATTHEWS, MSNBC HOST:  Tomorrow, President Bush's top adviser makes his last stand before the grand jury.  Is the prosecutor now ready to prosecute?  Let's play HARDBALL.

(MUSIC)

MATTHEWS:  Good evening.  I'm Chris Matthews.  For politicians, there is nothing worse than having your fate in the hands of an independent prosecutor.  And tonight, there is little President Bush and others at the White House can do, other than wait and see if Karl Rove can convince a federal grand jury not to issue criminal indictments in the CIA leak investigation. 

Tomorrow morning, Rove is scheduled to testify to the grand jury for a fourth time.  For a White House that depends so heavily on Rove, the stakes are huge.  And for prosecutors and everybody else following this case, the questions loom large.  Did Rove or some other White House big shot leak classified information?  Was it part of a larger, darker scheme to destroy an administration critic?  Did anybody talk about the scheme with the vice president? 

The prosecutor can tell us what he believes happened as early as tomorrow.  And while much of the investigation remains under seal, most lawyers believe that Karl Rove will be this grand jury's final witness.  HARDBALL correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice over):  Though he may not be showing the stress outside his home, the pressure on Karl Rove could not be much greater.  At the end of an investigation, according to lawyers, nobody volunteers to testify unless their fate is on the line.  And now even high-profile friends of Rove are stating the obvious. 

ALBERTO GONZALES, ATTORNEY GENERAL:  This prosecutor may have new information that may contradict prior testimony. 

SHUSTER:  In fact, lawyers for Rove acknowledged that in earlier grand jury appearances, the president's top adviser told the panel he did not recall talking to “Time” magazine reporter Matt Cooper about administration critic Joe Wilson.  Wilson had publicly undercut White House claims about Iraq.  Cooper told the grand jury Rove did talk about Wilson. 

(BEGIN VIDEO CLIP)

MATT COOPER, “TIME” MAGAZINE:  I testified openly and honestly. 

(END VIDEO CLIP)

SHUSTER:  And Cooper said that, after Rove told him that Wilson's wife worked at the CIA, Rove added, I have already said too much. 

(BEGIN VIDEO CLIP)

COOPER:  I thought maybe he meant, I've been indiscreet, and then as I thought about it, I thought it might be just more benign, like, I've said too much, I've got to get to a meeting.  I don't know exactly what he meant, but I do know the memory of that line has stayed in my head for two years. 

(END VIDEO CLIP)

SHUSTER:  After Cooper testified, Rove volunteered to go back to the grand jury again, a request Prosecutor Patrick Fitzgerald accepted only recently.  Justice Department guidelines require prosecutors to issue a warning before a witness being considered for an indictment testifies again.  And lawyers for Rove now acknowledge he has been warned by prosecutors there is no guarantee he will not be charged. 

Because of the dangers facing Rove and the vice president's chief of staff, Scooter Libby, whose testimony lawyers say contradicts the testimony this week of “New York Times” reporter Judy Miller, concerns in the White House have been growing.  Two years ago at the beginning of the investigation—

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I will not have anybody in my administration who leaked classified information.  If somebody did leak classified information, I would like to know it, and we will take the appropriate action. 

(END VIDEO CLIP)

SHUSTER:  When the White House was asked if Karl Rove was involved—

(BEGIN VIDEO CLIP)

SCOTT MCCLELLAN, WHITE HOUSE SPOKESMAN:  I've made it very clear that it was a ridiculous suggestion in the first place.  It's public knowledge.  I have said that it's not true.  And I have spoken with Karl Rove. 

(END VIDEO CLIP)

SHUSTER:  Now—

(BEGIN VIDEO CLIP)

MCCLELLAN:  I think it's most helpful for me to not comment while that investigation continues. 

(END VIDEO CLIP)

And President Bush -

(BEGIN VIDEO CLIP)

BUSH:  I'm not going to talk about the case.  It's under review, so I'm not going to talk about it. 

(END VIDEO CLIP)

SHUSTER:  Karl Rove has been President Bush's political mentor for more than 25 years.  He orchestrated Bush's campaigns for Texas governor and president.  And in the White House, Rove has served as top adviser on political strategy and policy.

But conservatives point to problems with the Harriet Miers Supreme Court nomination and stumbles over Hurricane Katrina as evidence that Rove is preoccupied. 

(On camera)  In the end, though, it's not Karl Rove's state of mind or even his freedom that's at issue.  It's about whether this president can operate without Rove and a healthy vice presidential office.  And for that reason alone, many Republicans shudder at the prospects of this administration's second term without some of the key people that helped President Bush get here to begin with. 

I'm David Shuster for HARDBALL, in Washington. 

MATTHEWS:  Thanks, David. 

Jim VandeHei is the lead reporter on the CIA leak investigation for the “Washington Post.”  And today, he reports that the special prosecutor, Patrick Fitzgerald, is looking into a broad conspiracy charge against administration officials.

Jim, thanks for joining us.  What is the latest development in this moving story? 

JIM VANDEHEI, “WASHINGTON POST”:  Basically, we have the Rove testimony coming up.  We are anticipating that it's tomorrow.

Beyond that, we are left having to talk to the lawyers in the case and try to discern from what questions they are being asked from Fitzgerald what direction he might be going in.  There does seem to be a consensus among those lawyers that has developed in the last two weeks that centers on two things:  either he is looking at a broad conspiracy charge that would involve multiple administration officials, or something along the lines of the Espionage Act, which is easier, I guess, to prove than the initial crime, and what he set out to prove, which was to prove that someone had knowingly leaked the identity of a CIA operative, knowing that the agency was trying to keep that person secret—very tough to prove.  Espionage Act is a little more vague and a little easier to prove. 

MATTHEWS:  Why is Rove risking his neck by going before the grand jury again? 

VANDEHEI:  I think he has to.  They want questions answered.  He has to go there.  His lawyers will tell you that he has nothing to hide, that he has been fully cooperative from day one.  Truth is, we don't know exactly what he has been asked and what he was told.  We don't know if there is a danger for him to trip up on something he told previously to the investigators or whether there is any new information that he can add that would help put the final piece of the puzzle for Fitzgerald together. 

MATTHEWS:  Joining us right now is Andrea Mitchell, NBC's chief foreign affairs correspondent.

Andrea, the president of the United States, how is he taking this threat to his administration and possibly, if you read the papers and follow this story, so many of his top people could be swinging? 

ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Well, I thought it was very telling.  If you remember the Matt Lauer interview with George Bush down in New Orleans the other day, or down in Louisiana the other day, when he, in fact, looked almost stricken when asked whether he was worried about Karl Rove and about these other members of his administration.  And he seemed to be looking and searching for the politically correct answer.  But he does seem really affected by this. 

I think it's reflected in everything that's going right on, from the staged management of this conversation with the troops today, to more profoundly, the Miers' nomination and how it's not being sold on the Hill. 

MATTHEWS:  I guess there is a question about the attitude of the special prosecutor and what he feels these people are like.  Does he feel he is up some bad guys, some arrogant bastards in the White House who think they can just lie to him, of he thinks they think they are better than him.  I'm trying to figure out the motivation of the prosecutor. 

Let me ask you this, both of you.  Let me start with Jim—I know and you guys know from your coverage, you especially Jim, you have a problem here.  You have Karl Rove saying he doesn't remember a conversation with Matt Cooper of “Time” magazine.  You've got Scooter Libby, the chief of staff to the vice president, saying he can't remember conversations with Judy Miller of the “New York Times.”  This forgetfulness by people known for their IQ, is this driving the attitude of this prosecutor that there is a conspiracy here, that these guys can get together, plan what they want to plan and treat him like bumpkin who can be b.s.-ed, basically? 

VANDEHEI:  Right.  I've got to be honest here.  We don't know what's motivating Fitzgerald.  I mean, unlike many white collar crime investigations, we are not getting any signals whatsoever from his office on what direction he is going or why he's interested in Rove and Libby. 

We are left having to basically look at what we are hearing from the lawyers.  We have clients involved in the case and then discern from there what patterns we might see developing. 

You know, clearly, there are gaps between what we heard from the White House and Rove and Libby originally, and what we are hearing today.  And like you said, these are both two very smart men who aren't very forgetful.  And especially in the Rove instance, you had him talking to Cooper saying, originally testifying I don't recall that conversation, but then there was this e-mail that that popped up later in the investigation that showed that he sent to Steve Hadley who was working at the National Security Council at the time, oh, I had this conversation with Cooper and waived him off the Wilson (INAUDIBLE).

So, it shows that he was at least on two different occasions thinking about this.  And if he forgot about it, I guess it's human nature we do forget things.  But I think that's why it strikes a lot of people as curious. 

MATTHEWS:  It's taking this prosecutor, Fitzgerald, two years now.  And from two years ago, this time—I can tell you, this time two years ago, we were reading the names of Scooter Libby, and to some lesser extent Karl Rove, as the targets of this investigation.  For two years, these guys have been under the spotlight of this prosecutor and his team.  Why has it taken so long to get pay dirt if they're guilty? 

MITCHELL:  Well, the prosecutor would certainly say that one reason was that they didn't have Judith Miller's testimony and notes.  They did not know until this week that there had been a prior conversation between Scooter Libby and Judith Miller way back on June 23 of that year, 2003, which doesn't even speak to the initial leaks, it speaks to perhaps a broader plan on the part of White House officials or other officials in the administration, I should say, to try to undermine Jim Wilson's credibility. 

MATTHEWS:  And Jim, the option here for the prosecutor as you mentioned in your piece today or “The Post” had the piece today, because there is a sense now that the prosecutor is looking at a longer term campaign by the vice president's office and by his allies in the president's office, to look into the possibility of hurting Joe Wilson, that it would more like a conspiracy case and less like sort of an impulsive release of classified information. 

VANDEHEI:  Exactly.  I think everyone has gotten too preoccupied with that one week in July when Bob Novak's column ran, and there was a little bit of, you know, who leaked to who that week.  You have to step back and look at the two months before them, because Cheney's office, which was knee deep in making the argument for going to war and then defending the intelligence that was used to justify the war, they were aware of Wilson.

They saw that he was, A, talking to reporters; he was the leak in a column to Christof (ph) in The New York Times in May, and they started asking around.  And Cheney's office even inquired in the middle of May to the CIA asking questions about Wilson.

So at least by early June, they had a good portrait of who Wilson was, what he was up to and, presumably, probably had some idea of the role of his wife—because Washington's a small world and the CIA community's not that large, especially in a twin like Washington.

MATTHEWS:  What's the exposure of the vice president here?  We read accounts of how Scooter Libby has testified that, when this whole thing began—at least in the July portion of it—he got some press inquiries.  He raced into the Vice President's Office—his boss—and said, “How do you want me to handle these press inquiries?” 

Well, that's, it seems to me, a very sanitized version of what was probably a meeting between two politically skilled people, Scooter Libby and his boss, as to how to deal with somebody who was attacking him—that's Joseph Wilson, the former ambassador. 

Is there a way in which the vice president could not have been involved in these discussions which are now being portrayed as a possible scheme or conspiracy? 

MITCHELL:  Chris, I actually wanted to clear something up, because I was involved in that back then.  And, in fact, one of the things that the administration, the Vice President's Office, was trying so desperately to clear up was that Dick Cheney, in his trips to the CIA, did not solicit Joe Wilson to go. 

There had been inaccurate reporting—some of it came from Wilson's mouth himself—that he was dispatched by the vice president.  This was clearly the case, according to the Vice President's Office, where the vice president asked a lot of questions about the uranium in Niger. 

(CROSSTALK)

MITCHELL:  And as a result, he was tasked to go. 

MATTHEWS:  I acknowledge that that's their defense, but don't we know now the fact that the trip was, in fact, triggered.  Of course Valerie Plame suggested her husband for the mission.  But the mission was triggered by the inquiry by the vice president and the vice president was denying that at that time, wasn't he? 

MITCHELL:  In fact, that's not the case.  The trip was triggered by the vice president's inquiries on the part of NSC and CIA officials who were eager to answer his questions. 

MATTHEWS:  Right.

MITCHELL:  He did not necessarily know that any trip was even under way at the early stages of that trip. 

MATTHEWS:  Sure, but they...

MITCHELL:  That's what they were trying to clear up.  That's why they jumped up.  And that was probably the original motivation.

MATTHEWS:  Right.  But is the vice president, Jim, still left with the explanation that he or someone has to give—if a trip was undertaken to Central Africa to answer an inquiry raised by him, why didn't they report back to him that there was no deal there involving uranium?  And, therefore, why didn't he tell the president before he gave his State of the Union address? 

Isn't that the exposure that the vice president was sensitive about that may have triggered the actions by his office? 

VANDEHEI:  Again, we have no idea.  Remember how this town works.  A lot of the times, a principle is kind of divorced from what's happening.  Scooter Libby is his top adviser, has a broad portfolio, can do a lot of things by freelancing and do it on his own and might not necessarily communicate any of it or much of it to the vice president.

So, unless there's some kind of direct connection where we know that the vice president had knowledge of what was going on, there really isn't a connection and he probably doesn't' have any legal exposure. 

If there was, then of course he does have legal exposure.

MATTHEWS:  And it depends, to a large extent, on what Scooter Libby testifies? 

VANDEHEI:  Correct. 

MATTHEWS:  Any thoughts on that, Andrea?

ANDREA MITCHELL:  Well, I think that there is also the dog that hasn't barked, if you will.  There was a CIA-NSC connection here, because it was the CIA that was telling the NSC, for instance, all the way back before the State of the Union:  “Don't let the president say this about the Niger uranium in the Cincinnati speech.”  And then, again, “Don't say it in the State of the Union speech.”

But as we know, George Tenet never checked back, and took the hit for not having checked back.  And Steve Hadley took the hit—who's now the national security adviser. 

There are other players here.  There's Ari Fleischer, who read about all this on Air Force One. 

So I think that there are other potential players here.  And while we focus on Scooter Libby and, appropriately, on the people like Karl Rove who are going to testify again tomorrow, there are still unseen hands that may play a role in the final results of this investigation. 

MATTHEWS:  Well, we're going to learn more.  Thank you very much, Jim Vandehei and Andrea Mitchell.

Coming up, New York Times columnist Bob Herbert and The National Review's Kate O'Beirne on the White House leak investigation and President Bush's plunging poll numbers. 

And later, conservatives still aren't sold at all on the president's Supreme Court nominee Harriet Miers.  We're joined by Judge Robert Bork, who conservatives pinned their hopes on two decades ago.  Plus, former Circuit Court of Appeals judge Charles Pickering—both coming here.

You're watching “Hardball” on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to “Hardball”.  For President Bush, who remains more popular than the numbers about the country's direction right now and is still untouched personally by the CIA leak probe. 

These are the times that try men's souls. 

A new Wall Street Journal/NBC poll shows the lowest ever number of Americans seeing the country headed in the right direction.  There is high anxiety over heightening prices for gasoline and heating fuel this coming winter. 

A smoldering belief out there that cronyism, rather than capability, is driving the president's personnel decisions—most of all, his selection of backroom staffer Harriet Miers for justice of the United States Supreme Court.

With me now, Bob Herbert, a columnist with the New York Times, and Kate O'Beirne, Washington editor of The National Review magazine.

But the way, John McLaughlin once held that post  And by the way, National Review, a magazine I loved growing up that got me interested in politics.  Congratulations on your 50th anniversary.

KATE O'BEIRNE, WASHINGTON EDITOR, THE NATIONAL REVIEW:  Thank you.

MATTHEWS:  According to the reporting of our previous guest, Jim Vandehei of The Washington Post, quote, “based on the questions, Fitzgerald”—that's the prosecutor—“is asking, the lawyers surmise that he is looking into a broad conspiracy charge against a group of administration officials or into charging one or more officials with easier-to-prove crimes such as disclosing classified material, making false statements or perjury.”

Bob Herbert, thank you for joining us.  I must ask you, since you're coming in to us from New York, do you believe that these are small-level charges like perjury?  Do you think the president will be affected by them? 

BOB HERBERT, NEW YORK TIMES COLUMNIST:  Yes, I think the president will be affected by it, but we have to find out, you know, when the investigation gets wrapped up, whether there is any there there.  I mean, it really appears like we're going to see indictments.  I can't believe he has gone to this trouble and expense over two years and come back empty. 

But the question...

MATTHEWS:  I mean, how would you like to have two years of a guy of doing nothing but putting together a first-rate team, looking at charges that were suspected two years ago...

BOB HERBERT, NEW YORK TIMES COLUMNIST:  Right.  Exactly.

MATTHEWS:  ... all this time looking for stuff.

BOB HERBERT, NEW YORK TIMES COLUMNIST:  The question becomes—if there are criminal charges—whether there really was serious wrongdoing there or whether this is sort of the way things work in Washington.

I mean, obviously, my opinion is that the administration was involved in dirty tricks and you don't want this kind of behavior.

MATTHEWS:  OK, what to you is a dirty trick as opposed to a clean trick?  If somebody does something wrong, and you leak it to the press that they did something wrong, I would call that a clean trick.  If you made up the story about somebody and put it out there as some sort of stink bomb, that is a dirty trick. 

HERBERT:  If it turns out ...

MATTHEWS:  If you say Joe Wilson was married to this woman who sent him on the trip and he's partisan, is that a dirty trick? 

HERBERT:  It is a dirty trick if Joe Wilson went on—had the mission and comes back and the mission was successful in the terms that the information that he came up with was accurate, but because you didn't like that information, you decided to trash the guy. 

(CROSSTALK)

MATTHEWS:  Right.  We don't have any ...

(CROSSTALK)

HERBERT:  That's dirty trick.  But the question becomes ...

MATTHEWS:  Who would have done that, Bob?  The vice president's office of the CIA?  Who would have sat on information that came back from that trip that would have nullified the administration's case there was a deal with Africa by Saddam to buy nuclear materials? 

HERBERT:  I mean, almost anybody might have said—I mean, the administration was committed to this war.  They were committed to the whole idea of weapons of mass destruction and they were committed to going after Saddam, and they made it clear that anybody who was off the reservation on this thing would be dealt with harshly, which was one of the ways that they rounded up so much support for the war.  So, you know, it could have come from anywhere. 

MATTHEWS:  Kate O'Beirne, is there a difference between hardball and dirty tricks?  Could it be that they can play hardball with this guy, Joe Wilson who they—who was threatening them.  Joe Wilson's writes a paper for the “New York Times,” a column for your paper, Bob.  He leaks stuff to Nick Christof, a liberal.

HERBERT:  Nick Christof.

MATTHEWS:  He makes a point that these people took us into a war in a corrupt manner with false information, knowing there was no nuclear deal, pushed that nuclear button, sold it on television and in the pages of the “New York Times.”  That's something—the vice president's office had a fight, right, if that's what was going on? 

O'BEIRNE:  Well, given that he was an opponent of the president's, and an opponent of the war, the question was raised, why was this guy sent over to Africa by the CIA to look into this charge?  And isn't he a credible person given that he was sent on a mission like that and came back with findings? 

And you could certainly see how the White House said, no, just because he made that trip doesn't make him an expert as far as we're concerned.  And no, we are not persuaded by what he brought back.  The CIA appeared to be underwhelmed by what he brought back, given that he ...

MATTHEWS:  And they're not even sure he brought back a clear report.

O'BEIRNE:  Exactly, given that he only made an oral report.

MATTHEWS:  Because he said there was some kind of a deal going on, and says the only thing Niger has to sell is uranium.  It might be that that involved uranium, right? 

O'BEIRNE:  So given those questions that were raised, people said, well then how did he wind up getting sent given that he is no expert. 

MATTHEWS:  Well, he was an expert in African relations.  He had been an ambassador in that part of the world, right?

O'BEIRNE:  No expert in weapons of mass destruction, and given that his findings, people don't find particularly persuasive, what was he doing over there?  And the innocent answer would be, his wife works at the CIA and she recommended him.

MATTHEWS:  Everything you say could be true, and they could have still used—they could have still broken the law to whack him.  That's still possible, too.  We will find out. 

O'BEIRNE:  Yes, that underlying Espionage Act is pretty darn hard to break.  They could've been unaware ...

MATTHEWS:  Is it hard to ...

O'BEIRNE:  ... of what her status was at the CIA.

MATTHEWS:  I understand that if you distribute—Bob check me, but—both, of you.  But I understand the Espionage Act says if you distribute classified information ...

O'BEIRNE:  Knowingly.

MATTHEWS:  ... then it's classified.  Even if you get it from somebody else, a reporter, but you know it's classified, you are guilty. 

HERBERT:  Well, the question—the question there becomes, you know, how broadly do you enforce the law?  I mean, because how often has classified information been distributed, especially from people in government to people in the media.  I mean, the simple truth is, that we don't know everything that was going on here.  I mean, we still have to—we still have to find that out. 

MATTHEWS:  Well, these guys remind me of that movie, Bob, “Memento” where that guy has to post ...

HERBERT:  If it's simply—if it's simply a case—if it's simply a case of somebody leaked classified information to a reporter and then you bring a heavy criminal charge on that, that might be one thing.  If there was, in fact, a very serious conspiracy or some very serious violations of the law, that's another matter and we just don't know yet. 

MATTHEWS:  Another possibility is the very a small but important fact, that these guys have memories like that guy in the movie “Memento.”  he kept forgetting things.  I mean, every time they had a meeting, they forget about the meeting unless they have something pinned to them. 

But in this case, he wrote an e-mail—Karl Rove—that he met with Matt Cooper, so we have evidence that his memory was intact.  He just didn't remember the question when asked about it by the prosecutor under oath. 

When we return, how does the president protect himself from this leak investigation?  It's a big question.  We'll be back with Bob Herbert and Kate O'Beirne.  And next Wednesday, California Governor Arnold Schwarzenegger is going to be here, our guest right on HARDBALL right here. 

He has got a lot of fighting going on in California.  He is fighting for

re-election and he is fighting for his life politically.  This is HARDBALL,

only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We are back with “New York Times” columnist Bob Herbert, and Kate O'Beirne of the “National Review.”  According to a new NBC News-“Wall Street Journal” poll just out, a majority of Americans, 54 percent, say President Bush puts greater emphasis on personal friendship and partisan loyalty than he does on competency and job qualifications when picking appointees.  Bob, the cronyism charge seems to be sticking if you look at that number. 

HERBERT:  The cronyism charge is sticking because it's coming in this awful context as far as the Bush administration is concerned.  Whether you were for or against the war in Iraq, there's very few Americans who feel that the war has been conducted competently. 

We saw the disaster in terms of the administration's response to Katrina and the flooding that followed.  Now you have got this whole problem with the Supreme Court appointee, and both sides, left and right, seem to feel that she is not qualified to be on the court and that her only qualification really is her closeness to the president. 

MATTHEWS:  Then we had Robert Bork coming on to administer the coup de grace I think in a few minutes.  Kate, you don't think—I want to make sure we get full sides here.  You don't think there is going to be indictments in the leak case? 

O'BEIRNE:  Chris, I don't know enough to make a safe—obviously, to make a safe prediction one way or the other, but if you watch what the prosecutor is doing, what Fitzgerald is doing, it could argue against any indictments.  Karl Rove is going back for a fourth time.  Boy, does that appear to be incredibly thorough.  Very few people wind up going back four times.

MATTHEWS:  They give Karl one last chance to clear the record.

O'BEIRNE:  If he is not going to issue indictments, he knows that he has—the Washington political community, the country, the Senate, looking over his shoulder.  He is going to have to give a very thorough explanation of why no indictments and what happened here.  Most prosecutors are not in that same position.  So I can see how there is an excess of caution and he's being terribly careful to leave no loose ends, maybe because he's not indicting.

MATTHEWS:  I think he's going to indict, but anyway, it's another—who knows?  Who knows?  He may not know.

Bob Herbert, sir, thank you for joining us.  Great to have you on this show, on HARDBALL.

HERBERT:  Thanks, Chris.

MATTHEWS:  Bob Herbert, columnist for the “New York Times” and Kate O'Beirne, Washington executive editor of the “National Review.”  Up next—a great magazine, especially in the old days when I was about 15.

Anyway, a frequent “Hardball” guest and former Bush speechwriter David Prum on the right over a fight over Harriet Miers with two prominent judges, Charles Pickering, who supports the Miers nomination, and former Supreme Court nominee Robert Bork who's against it. 

We'll be right back with “Hardball” on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to “Hardball.”  President Bush's Supreme Court nominee, Harriet Miers, has proved a lightning rod for the right who question her conservative roots.

In a moment, we'll talk to conservative legal scholar Robert Bork, who was a Supreme Court nominee himself in 1987.  But first, Charles Pickering is a conservative who supports the Miers nomination.  In fact, he was nominated by President Bush to serve on the U.S. Court of Appeals.  The Senate blocked his nomination twice, so the president appointed him while they were in recess.  Last year, Judge Pickering retired from the federal bench. 

Thank you for joining us tonight from Jackson, Mississippi. 

Do you believe, as Laura Bush said the other day in an interview with Matt Lauer of NBC, that there's some sort of gender discrimination involved in the criticism of Harriet Miers? 

CHARLES PICKERING, FMR. JUDGE, U.S. CIRCUIT COURT OF APPEALS:  Well, I don't want to attribute motives for whatever the opposition may be.  I think she has an extremely fine resume.  I think she's qualified.  I understand there are some—I understand Judge Bork is going to be speaking against her. 

I have great respect for him.  I think he would have made a great Supreme Court justice.  But I respectfully disagree.  I think she's got a great background.  She was one of the top lawyers in the nation, selected numerous times as one of the 100 most powerful lawyers in America—women, men, either.  She was just a good lawyer.  She merged a 200-lawyer firm into a 400-lawyer firm.  She's got an excellent background.

MATTHEWS:  Do you believe, if she were male and she had been the president's lawyer and he brought her to Washington and took four or five years to promote her as counsel in the White House and didn't use her—use him, for example, if it was a male—do you think the qualifications of such a candidate would be taken seriously? 

(CROSSTALK)

MATTHEWS:  If it had been a male lawyer for the president who he didn't even consult as a legal adviser through much of his first term, never went to this person and asked legal advice from, never sought their legal thinking or constitutional thinking—even more so—and then all of a sudden discovered that they were Supreme Court material. 

Wouldn't there be a question about whether he was serious—the president? 

PICKERING:  No.  Chris, I think, you know, we play hardball, but if we stop and play a little softer and we think things through reflectively and you look back on her background, she had a tremendous record in Texas.  He asked her to take a great cut in pay.  She took a cut in pay to come to do public service. 

She had experience in local government, state government, now in federal government.  And she had tried cases that represented millions of dollars, Fortune 500 companies had represented her. 

If she had been male, she could have been selected to the Supreme Court based upon her resume before she ever came to the White House. 

MATTHEWS:  Well, why didn't the president use her as a—if she is a great lawyer, why didn't the president use her as a lawyer when he brought her to the White House for the past four years?

PICKERING:  Well, he had another one.  But he thought she would do a great job.  And I think you're minimizing the position she had.  She was assistant to the president when she came there.  She had the responsibility of being the gatekeeper.  And then he moved her up because he saw her ability. 

And general counsel—there has been a minimizing of that position.  She gives advice to the president every day on constitutional issues.  And to suggest that the counsel to the president of the Untied States is not on par with someone on the Supreme Court, she has to give great advice—we would hope every day. 

So the president had a chance to see her. 

No.  I think if a man had this resume, this background, that he would be eminently qualified.  One of the things...

MATTHEWS:  Let me ask you another question—the president raised her religion the other day as an argument for her confirmation.  He said this is an important thing to recognize, that she's a religious woman. 

Why would that be a qualification to the Supreme Court—to be someone who goes to church on Sunday? 

PICKERING:  Well, Chris, I think you know as well as I do that, because some conservatives were questioning her background, that he was trying to give some assurance that, you know, she is very much a committed evangelical Christian.  She has been identified as being pro-life. 

I don't think that is any indication of what she will or will not do as far as Roe v. Wade is concerned, but I think he was trying to give reassurance to the conservatives that here is someone who is comfortable with who she is, that she's not going to be intimidated or influenced by someone else when she comes and gets into the Washington—well, she is in the Washington circuit. 

She doesn't seem to be overly impressed with what someone else thinks of her. 

MATTHEWS:  Why does the president, repeatedly, “say she will not change”?  That is an odd thing to say about an active mind, someone with protean thinking, that they'll never change in their thinking. 

I've never heard anyone described that way positively. 

PICKERING:  Well, that's not that he's describing her.  He is responding to criticism.  They're saying that some of the other justices who came on the court have gotten to Washington and the heady environment, the social circle there, that they have changed who they are. 

And he is saying...

MATTHEWS:  But that reminds me of a father worried about that the daughter's going to go left because she goes to college.  It is assuming that she is fickle, that she's not really a grown up because you have to reassert the fact that, somehow, this—don't worry, you may think this person's going to be fickle and change when they get to the big city; believe me, this isn't the kind of person who does that. 

Doesn't that seem a little bit patronizing?  You wouldn't say that about a man, would you?

PICKERING:  No.

MATTHEWS:  Would you ever say a man wasn't going to change?

PICKERING:  Chris, there are a lot of conservatives that think Justice Souter changed after he got there.  I don't personally because I think he was already that way.  But that is what he is responding to ...

MATTHEWS:  Yes, I see.

PICKERING: ... and that is not something to criticize him for.  He was simply ...

MATTHEWS:  I see.

PICKERING:  ... responding to the criticism on the right.

MATTHEWS:  I get you.  I get you.  He is afraid that he'll be accused of doing what his dad did, pick a guy who is going to head left. 

PICKERING:  Exactly, and he was trying to speak out to head that off. 

He might have a great ...

MATTHEWS:  Well, you've been a great HARDBALL player tonight, judge, and you know what you are going to face and you've been a great champion of Harriet Miers.  We're going to have a guy on here in a second who is going to go the other way because that's the way we like to do it here. 

PICKERING:  And I have great respect for him, Chris ...

(CROSSTALK)

MATTHEWS:  OK, so do I.  Thank you, Charles Pickering.  Justice, thank you for joining us. 

When we return, the conservative argument against Harriet Miers from the big guy, former Supreme Court nominee Robert Bork.  This is HARDBALL only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL and Robert Bork.  You've minced no words about this nomination.  Do you want to not mince them again?  what do you think of Harriet Miers for the Supreme Court?

ROBERT BORK, FMR. SUPREME COURT NOMINEE:  Well, at first, we didn't know she had any qualifications.  Now I think we're learning that she is disqualified or unqualified. 

MATTHEWS:  How so? 

BORK:  Well, take a look at this morning's “New York Times” David Brooks column.

MATTHEWS:  Brutal.

BORK:  Yes, and he ...

MATTHEWS:  She can't write.

BORK:  She can't write, and she can't think except in cliches, apparently. 

MATTHEWS:  These long, latinate words conjoined together in an almost mystical fashion.  But it was that theory—with David Brooks, who I know pretty well, was going through was her document that she put out, I guess her manifesto, when she became head of the Texas Bar. 

BORK:  No, that was—she wrote a column for the “Texas Bar Journal” and it's nothing but cliches of thought and the writing is terrible.  It's not anything like a Supreme Court justice should be. 

MATTHEWS:  So the tight, economic of a court decision, she is not capable of writing? 

BORK:  Apparently not, as far as one can tell. 

MATTHEWS:  You know, I always thought that the worst thing that happens to you when you go to law school is you learn how to write in subordinate clauses and you can never say anything in the active voice anymore.  You forget the simple sentence.  She is the worst case I have ever seen.  Let me ask you, beyond her literary lack of ability, what do you think stuns you about this nomination, why the president believes it's worth fighting for?  Because he is going to fight for it, he says. 

BORK:  Oh, he's going to fight for it, and I think he's—and, by the way, if she should be defeated, for some reason, which I don't think she will be, his next nominee will be a real jab in the eye to the conservatives because he ... 

MATTHEWS:  You think they'll go to Gonzales where he wanted to go in the first place?

BORK:  I don't know where he will go, but I think he is so fed up with the conservatives, that they can't expect anything good out of him in the future.  Your question again? 

MATTHEWS:  I want to ask you a new one, because you are renowned for having advanced the philosophy about law, the constitution, and what you mean by it.  And you went before the committee and you were probably the last person to go in there unhooded, openly declaring a philosophy about the law and you were killed for it, right, because they didn't want that philosophy, because you basically took a view of strict construction and maybe original intent—whatever you want to call it—but they didn't like it.  Is that advice to all future nominees, don't write nothing? 

BORK:  That's the advice that Bush, I think, is sending by this nomination.  This is a terrible thing for the young constitutional scholars who are coming up.  For 20 years we have been building a deep bench of such young people.  And now they're all available in the courts of appeals and the law schools and elsewhere, and this is a message sort of like don't ask, don't tell.  Don't say anything controversial, just keep your head down and be an establishment figure. 

MATTHEWS:  Isn't the most interesting about the law how our constitution has developed through amendment, through interpretation, through precedent and to understand how we have grown as a democracy?  Even liberals certainly believe that.  Why wouldn't a law student be fascinated with that part of the law? 

BORK:  He should be.  And if he becomes a mature lawyer and still interested in those things, he should write and make his opinions known.  But we now have nominees who are sort of stealth nominees, whose opinions are not known.  I don't mean opinions on a particular case, I mean judicial philosophies.

MATTHEWS:  I know what you mean.  Chuck Schumer said—you may not like his point of view.  He's pretty liberal, obviously, and he said let's stop looking for bad things in somebody's closet.  Let's be honest about it.  We're looking to see if they are a conservative or not.  And if they're a conservative, we're not going to put them on the court. 

He is totally open about it.  He doesn't care if they are clean as a whistle, wonderful people.  If they are for the conservatives, he is a liberal and he is not voting for them.  Is that the way we should approach this?

BORK:  No, but, you know, the fault for that is the Supreme Court.  The Supreme Court has made itself a political institution rather than a legal institution by going outside the constitution and deciding all kinds of issues of which they have no legitimate jurisdiction. 

MATTHEWS:  But they started that big time in '54, right, with the Brown case?

BORK:  No, I don't think so.

MATTHEWS:  They declared separate is not equal. 

BORK:  I know, the Brown case can be justified in a way that we don't have time to discuss now.  I have written about it in a book.  But the fact is, once it becomes a political institution—the court does—both sides are going to fight for control of it.  And that's why we have these contentious nomination confirmation process.  They are fighting for political control.  They are fighting for power. 

MATTHEWS:  The number one defense issue of the Democratic Party—it's all they ever talk about—is Roe v. Wade.  They're going to fight what they call, for a women's right to choose.  If we didn't have that Roe v. Wade decision back in ;73, what would it be like in America today based upon what you have watched? 

BORK:  Well, abortion would have been liberalized, not as far as Roe against Wade took it, but the movement was to liberalize abortion in the state legislatures.  Roe against Wade is an outrage, because there is no way you can get it out of the constitution.  Nobody has ever devised a rationale to explain why the constitution has that in it. 

MATTHEWS:  You mean, they just made it up? 

BORK: Yes.  In addition to that, however, what it has done is poisoned our politics.  It polarized America over that issue. 

MATTHEWS:  It saved the Republican Party the last 30 some years.  It's kept it from being hurt on the abortion issue, right?

BORK:  Yes.

MATTHEWS:  Hasn't it been politics for the Republicans?  They can rail against the evil, liberal Supreme Court, and that way—but they never have to deal with the abortion issue on the ballot.

BORK:  Oh, I'm sure a lot of them don't want to, but they should have to, because it should be a legislative decision.  In Europe, where it is legislative, there isn't this kind of rancor over it, because people have their chance to have their say.

MATTHEWS:  I wonder how many of these senators and congressmen who were pro life, would be pro life if it was on a ballot and they had to defend it? 

BORK:  I don't know.  But I think they should have to face the music. 

MATTHEWS:  Well, if you had won, they would have.  But you didn't, and they don't.  Anyway, thank you Judge Robert Bork who is not for Harriet Miers.

When we return, the media's role in the Miers' nomination and the CIA leak probe.  And a reminder, the political debate is ongoing on Hardblogger, our political blog Web site, and now you get podcasts of Hardball—my favorite new word: podcast.  And listen to the show whenever you want wherever you are.  Just go to our Web site, Hardball.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  Are politicians partly responsibility for America's distress to the media?  “Congressional Quarterly” columnist Craig Crawford thinks so.  He argues in his new book “Attacking the Messengers: How Politicians Have Deflected Criticisms of Themselves by Convincing Americans to Blame the Media.”  Welcome. 

CRAIG CRAWFORD, CONGRESSIONAL QUARTERLY:  Hi. 

MATTHEW:  Who has succeeded with this new device of blaming the messenger? 

CRAWFORD:  The last presidents we've had, I think Bill Clinton and George Bush both were very effective at attacking the messenger.  The point of what I'm talking about here is they get the public distracted from something they don't want to talk about. 

We most recently saw Scott McClellan, the White House press secretary, saying don't play the blame game 15 times in a briefing with David Gregory going after him on the hurricane fallout.  That was an example of trying to turn the focus on the media how they're asking questions. 

You remember, when I was a kid growing up, my parents they would see a politician not answer a question on a show like this and they'd say, he didn't answer that question.  More often now, what we hear from people is, oh, that was a rude question.  What an insensitive reporter.  I can't believe how rude those reporters are. 

MATTHEWS:  But we used to have tough, tough questioning of presidents.  I mean, Jimmy Carter, I can tell you, I worked there.  We had people, you know, like Leslie Stahl, hosing the guy every night.  I've talked to her on this program.  There's nobody out there who has a reputation out there among White House correspondents for really going at—like there used to be.  Like Sam Donaldson, where every night they went on and go after Nixon, go after Reagan—well, Reagan got away with a lot.  But going after Carter, really nailing him.  That kind of ferocity I think this thing may be working. 

CRAWFORD:  It does work.  My point in this book is the Bush campaign and Senior Bush in 1988 started a war against the media that ended with the Dan Rathers stepped do down.  And I call that the day the politicians won the war against the media, just a way—almost a symbol of it.

MATTHEWS:  Didn't Roger Ailes (ph) in his genius set up that fight with Dan Rather back in '88?

CRAWFORD:  That's the first chapter of my book, the whole chapter I deconstruct that one interview.

MATTHEWS:  And they did it like a preliminary bout to show, hey, if George Bush can beat Dan Rather, he can beat Mike Dukakis. 

MATTHEWS:  And they ran against the media in that campaign found several ways to do it very effectively, not just turning the focus on Rather.  Do you remember, Dan Rather was trying to get answers to questions about how Vice President Bush handled himself in the Iran-Contra episode.

We still don't have answers to those questions about his role in that

·         and prior to his presidential campaign, Rather was trying to get into that, and wasn't able to, because ultimately the focus was on how their interview melted down.

MATTHEWS:  Big question.  We have a lot of problems right now in this country in the old judicial situation.  You have got Rove under fire, Libby under fire in the White House, you've got DeLay under fire, you've got—who is the other guy—who am I missing?  Have Frist under fire.  Every top figure, it seems, in our government, in the Congress, in the White House, is facing a prosecution now.  I mean, I've been through other periods, Watergate included, I've never seen so many people facing prosecution. 

CRAWFORD:  And I think the public is starting to think there's some smoke to the fire. 

MATTHEWS:  They think—there's a poll today shows they think that Frist and DeLay were both probably guilty of something rather than just being falsely accused. 

CRAWFORD:  And in each of those cases, they tried to blame the media, tried to attack the messenger in especially in DeLay's case. 

MATTHEWS:  I don't know about DeLay, because after boycotting this show for a couple of years, he came over here tonight, he got in trouble.  It was very nice to sit there and take all the questions. 

He didn't blame me at all.

Anyway, we have a great book here, “Attack the Messenger.”  This guy is smart.  “Attack the Messenger.”  Craig Crawford. 

Last week, Howard Dean made an off color—well, comment on my show.  Wednesday night, David Letterman asked him about it on his show.  Let's take a look at the Letterman show.

(BEGIN VIDEOTAPE)

DAVID LETTERMAN, LATE NIGHT WITH DAVID LETTERMAN:  I saw you on HARDBALL with Chris Matthews the other day.  And you were talking about Harriet Miers and the Supreme Court, and you talked about hiding the salami with Harriet Miers.  Honest to god, what was going on there? 

HOWARD DEAN, DNC CHAIRMAN:  I have to say, I almost brought you a salami because I figured you might do this. 

LETTERMAN:  He asked you something about the Supreme Court and you said, I don't know, let's hide the salami.  Now, is that what it was? 

DEAN:  That's not exactly how it happened.  We were appealing to the ethnic vote.  Actually, this is one of those moments in television that everybody—that everybody—Chris asked me about...

(APPLAUSE)

LETTERMAN:  I'll be over here.  I'll be right here. 

DEAN:  Chris asked me about her credentials, and I actually think that she is qualified.  I think we need to find out a lot more about her.  And I was saying this is one area where the president can't hide the information like he did under Judge Roberts. 

So unfortunately, I was thinking of three card monte, but then I thought, but nobody outside New York is going to know what 3-card monte is.  So I was thinking of the shell game.  And I said hide the—and I got stuck, and I knew I had about three seconds to avoid looking like Jeanette Pirro.  So, I said—hide, hide the—the first thing that came into my mind was kielbasa, but didn't want to say that, so I said salami, or whatever it is.

LETTERMAN:  That'll get her confirmed. 

(END VIDEOTAPE)

MATTTHEWS:  Thank you very much, Craig Crawford for that.

Tomorrow on HARDBALL, Russell Simmons and Minister Farrakhan—Louis Farrakhan on the 10th anniversary of the million man march here in Washington.

Right now it's time for the “ABRAMS REPORT” with Norah O'Donnell in for Dan.

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

END   

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