updated 10/28/2005 11:15:08 AM ET 2005-10-28T15:15:08

Guests: George Allen, Dick Durbin, David Frum, Ed Rogers, Steve McMahon, Evan Thomas, Alan Simpson

CHRIS MATTHEWS, HOST:  Triple damage is late on the day of the Harriet Miers debacle that reported the much respected “National Journal” that Vice President Cheney and his chief of staff, Scooter Libby, concealed key documents from Senate investigators probing the WMD case for the Iraq war.  The documents included intelligence data that Cheney‘s office and Libby in particular pushed to be included in Secretary of State Powell‘s pre-war speech to the U.N.  The “National Journal” said the report underscores the central role that Cheney‘s office played in repressing criticism that the administration led us into war with exaggerated claims about Iraq‘s weapons. 

All this on what appears to be the eve of devastating action by special prosecutor Patrick Fitzgerald on the CIA leak ways.  Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews.

Major news out of Washington.  Tonight, the “National Journal” is reporting that Vice-President Cheney and his chief of staff Scooter Libby, ignoring advice from White House staffers and attorneys, withheld critical documents from the Senate Intelligence Committee in 2004 when senators were investigating pre-war intelligence on WMD‘s in Iraq. 

But first, Harriet Miers withdrew her nomination to the Supreme Court today, bowing out under pressure from conservative senators.  President Bush known for his loyalty snapped up Miers resignation, clearly demonstrating political weakness within his presidency. 

Big question, can the president survive these political storms and get his presidency back on a successful track?  HARDBALL‘s David Shuster has more on the day‘s events. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC NEWS CORRESPONDENT (voice-over):  Bracing for possible indictments in the CIA leak case, this was not the White House resignation some Republicans had been expecting.  But last night, following another round of courtesy calls with Senate Republicans who said they were still concerned, Supreme Court nominee, Harriet Miers, told the president she wanted to withdraw. 

And this morning, just as prosecutor Patrick Fitzgerald was making it clear he would be announcing nothing today, Miers was delivering her withdrawal letter to the Oval Office, citing her role as U.S. counsel and a belief that, quote, “confidential documents and information not be released to further a confirmation process.” 

It might have been more, however, than the document dispute that sunk her.  From the start, questions were raised about her experience and qualifications, even as the president introduced Miers. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Harriet Miers will strictly interpret our constitution and laws. 

SHUSTER:  A day after the president nominated Miers and brushed over the fact she had never served as a judge or even argued at the Supreme Court, the president tried to reassure disappointed conservatives with this.

BUSH:  I know her well enough to be able to say that she‘s not going to change.  That 20 years from now, she will be the same person with the same philosophy that she has today. 

SHUSTER:  White House supporters pointed to a questionnaire she answered in 1989 while running for city council where she indicated she favored a constitutional amendment outlawing abortion.  But in recent days, conservatives were confronted with the text after speech where Miers endorsed self determination in matters such as abortion.  And said, “abortion clinic protesters have become synonymous with terrorists.”  And added, “legislating religion or morality we gave up on a long time ago.”

Republican senators were puzzled. 

SEN. DAVID VITTER, ® LOUISIANA:  I would characterize where I am as having a bunch of questions.

SHUSTER:  And conservative activists were infuriated, including those who had been angry from the beginning about a nominee with no judicial record. 

DAVID FRUM, FRM. WHITE HOUSE SPEECHWRITER:  The president did not have to do this.  The idea that he was somehow some kind of political trouble...

SHUSTER:  Now conservatives are emboldened by their victory and liberals are calling the president weak. 

The Miers nomination debacle comes at a time when the White House is already under siege.  On top of continued problems in Iraq, the hype from the administration that led to war are under the microscope by Prosecutor Fitzgerald.  There are fears about the top adviser, Karl Rove, the vice-president‘s chief of staff, Scooter Libby, and the role of Vice-President Cheney.  All of this as the grand jury is set to expire on Friday, and with indications the panel is preparing to act. 

(on camera): Some of those indications are from lawyers in the case who say they are now convinced prosecutors will indeed make a big announcement tomorrow.  And so while conservatives may now be ready to stand again with this White House, thanks to the Miers withdrawal, there may be little politically that anybody can do for any White House official who ends up under indictment. 

I‘m David Shuster, for HARDBALL, in Washington. 

(END VIDEOTAPE)

MATTHEWS: Thank you, David Shuster.  I am joined now by Democratic Senator Richard Durbin of Illinois, who is the number two Senate Democrat a member of the Judiciary Committee and Republican Senator George Allen of Virginia.

Let me go to Senator Allen first.  Were you concerned by these late-breaking reports that Harriet Miers had a strong pro-abortion rights position? 

SEN. GEORGE ALLEN, ® VIRGINIA:  I was going to actually talk and interview Harriet Miers this morning.  And I read through these two speeches she gave in 1993.  I had dog-earred a lot of pages.  I was going to ask her to explain some of the comments and assertions she made. 

She was criticizing the lack of legislative activity and therefore saying that is why courts get involved.  And I am one who believes that the people‘s views and values are represented by those who they elect in the legislative branch and not unelected federal judges appointed for life. 

And so some of the comments she made in the speeches did give me plenty of questions to ask of Harriet Miers.  Because ultimately what I care about, are judges—a judge, potential judge‘s philosophy.  I don‘t want any judge that‘s going on the Supreme Court who think they ought to inventing the law or amending the Bill of Rights by judicial decree. 

MATTHEWS:  Senator Durbin, was this a bad appointment in the first place? 

SEN. DICK DURBIN, (D) ILLINOIS:  Well, it was a troublesome appointment, because without a background as a judge or even without writings to indicate what she believed we had very little to go on.  Most people did not know her, exception casually through contacts in the White House.  When I met with her personally in my office, it was a cordial meeting, but I didn‘t learn much during the course of that meeting.  It really increased her burden as the process unfolded to tell us who she was and what she believed in. 

I‘ll also tell you, the president‘s defense, suggesting that her religion was the reason to vote for her I think was not unprecedented, never happened before in history, but it created an especially difficult burden for her to talk about religion in her role in the court when she appeared before the committee. 

So, I‘d have to say this nomination was ill-fated from the start.  And the Republican right was very vocal in opposing her. 

MATTHEWS:  Senator Allen, when you met with Harriet Miers, did she strike you with someone with a lifelong curiosity about constitutional law? 

ALLEN:  Well, she withdraw before we met.  So, no, I was unable to discern that sort of philosophy.  I was hoping to determine what her philosophy is. 

And going forward what we need to urge, what I am urging the president to do, is appoint a man or a woman with a clear, consistent, demonstrable judicial philosophy.  We don‘t want judges who are going to be legislating from the bench.  I don‘t care to be complicit, and you know this, I‘ve said this on your show, with putting another Souter or Kennedy on the Supreme Court.  And there are some outstanding nominees, men and women, who the president can go forward with, who I think will have—at least those of us who think judges ought to have that proper philosophy for this very crucial seat, I think would get strong Republican support, and hopefully a few Democrats as well. 

MATTHEWS:  Well, in order to have the paper trail of proof that they‘ve had an established judicial philosophy, don‘t they have to have been judges? 

ALLEN:  It helps, because that is a record of performance.  However, there may be others that are professors, they may have been prosecutors may have worked in the Justice Department.  There are a variety of ways that you can do it.  But judicial experience is valuable.  But it is not dispositive. 

DURBIN:  Let me say one thing if I might.  The criticism of the right about Harriet Miers was not that she would be a judicial activist, it was the fact she did not have a demonstrable record of really following their narrow political agenda.  And that‘s what‘s I think the president is going to be faced with.  Will he show the leadership to appoint a nominee who will unify this nation?  Or will he set out to unify his Republican party.  I hope he wants to unify the nation? 

ALLEN:  Dick, I remember one time you were calling us a bunch of cocker spaniels or lap dogs because we were supporting the president‘s nominees, obviously there was division. 

DURBIN:  You are entitled to your opinion.  And I hope you express it. 

ALLEN:  I do.  And we had in this case senator leaders like Senators Frist and McCain and Warner and others held back. 

MATTHEWS:  Senator Allen you know about the internal workings of the White House than Senator Durbin, because it‘s your party that‘s in there, was—did she make this call, or was—or did Bush throw mama from the train?

ALLEN:  I don‘t know. 

MATTHEWS:  You don‘t know.  You really don‘t know after all this days past.

ALLEN:  I sincerely don‘t know.  I appreciate the fact that she has withdrawn.  I wish her well in her service to our country through the White House.  Most importantly, we need to look forward to filling this very critical vacancy on the Supreme Court. 

MATTHEWS:  Senator Durbin, do you know whether she was pushed or she jumped? 

DURBIN:  I have no idea.  I can just tell you, that there was vocal criticism against Harriet Miers came from the Republican side, from one wing of the Republican party that was very upset with her from the start.  Now, I admire what Senator Allen said that we have more Republicans now who want to be more independent.  I think that is good.  I think we need moderation and independence in both political parties. 

MATTHEWS:  Let me ask you Senator Allen, is the problem weight or ideology here? 

ALLEN:  What was the first word? 

MATTHEWS:  Weight, weightiness, gravitas. 

ALLEN:  I think that the, for those of us who care about judicial philosophy and trying to discern what she would be like in any judicial nominee when they put on the robe for a lifetime appointment, you want to make sure that they are going to stick to those principles. 

And, if someone doesn‘t have a record that demonstrates in a consistent and clear and convincing manner that that is their viewpoint, it makes it very difficult to have that comfort. 

In her case, you had, for example, that 1989 questionnaire for the Dallas city council on abortion issues. And then, a few years later, you have the speech to the women executives of Dallas and it seems to be an inconsistent statement on it.

Not that any of them are just positive, but it makes you wonder—OK, what does she think the proper role of a court is?  Should they be remedying issues that are best remedied by people elected by the owners of the company.

MATTHEWS: Have you—I‘ve only got a minute. I just got the warning.  Senator, have you moved to the left since becoming a U.S. Senator from Virginia? 

ALLEN:  Moved to the left?  No, I‘ve stayed as a common-sense Jeffersonian conservative. 

By the way, I followed Ronald Reagan‘s advice.  I trusted President Bush, but I wanted to verify. 

MATTHEWS:  The reason I ask that, Senator—I‘m sorry to keep interrupting, we only have a minute here.

It‘s because it seems like conservatives, especially people out in the country, in the South, for example, believe that anytime someone goes north or ends up in Washington, they get—somehow they go native and they become liberals. 

Do you appeal that happening to you, like invasion of the body snatchers? Do you feel yourself, just by working in Washington, being pulled to the left?  Do you feel that urge? 

ALLEN:  No, not at all. 

MATTHEWS:  Well, why are you suspicious that a woman would have her head turned and go left when she in the Supreme Court? 

ALLEN:  I worry about anybody, whether it‘s a man or a woman—I worry about that.

MATTHEWS:  What‘s it about the Supreme Court? What‘s in the water that turns these conservatives into liberals?

ALLEN:  I don‘t know what it is in Washington, but it does happen.  It‘s pointed out whether it is Souter, whether it‘s Kennedy, whether—there are others. I, as governor would appoint people as judges—this was for terms. 

This goes back to Hamilton beating Jefferson on the idea of judges being appointed for life rather than terms.  I have recommended to the president, J. Harvie Wilkison, Michael Luttig and Karen Williams from the Fourth Circuit, as well as I think, Janice Rogers Brown or Priscilla Owen would be fine as well.

MATTHEWS:  On a far lighter moment, but not unimportant to your state

I congratulate you, Senator Durbin, on the four straight by the White Sox. 

DURBIN:  I‘ll tell you what, the south side of Chicago is the gladdest part of town.  Those folks have been waiting 88 years for a champion , and they got it last night with the sweep of a good team, and there will be a lot of celebration in Chicago in the weeks ahead.

MATTHEWS:  Well, they beat the Cubbies anyway. Thank you very much, Senator Richard Durbin of Chicago tonight and Senator George Allen of Virginia.

Coming up, now that the nomination of Harriet Miers has been withdrawn, what do conservatives want in the President Bush‘s next Supreme Court nominee? 

And later, another day waiting in Washington as the White House braces for the possibility of indictments in the CIA leak case.  They could big, they could be tomorrow. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  More on the day of triple damages. Welcome back to

HARDBALL.

David Frum, a former speechwriter for President Bush, this President Bush, and now works for the American Enterprise Institute.

David, you start this? What should we call it—full-court press against this nomination.  How did you know you had a winning game going there?

DAVID FRUM, FORMER WHITE HOUSE SPEECHWRITER:  First, we did not know that.  In fact, most of us involved in the beginning thought we were committing...

MATTHEWS:  Who were the big names that initially saw the red flag and said, we don‘t like this nominee?  Who put up the red flag?  It was you in the mainstream press—what am I saying? What‘s happened to me. I must be going crazy. Laura Ingraham, Rush Limbaugh, yourself, Bill Crystal, who else was against this?

FRUM:  I think you have to say Manny Miranda (ph), who runs a discussion group.  And I think it was like a brush fire.  It just sort of caught.  That people—some people knew—had a lot of opinions about the courts. Other people, I knew the nominee. 

MATTHEWS:  You worked at the White House with her. What was the cut of her gym? I know you have to be gentleman-ly, and I hope you are, but what did you think of her an intellect?

FRUM:  She was perfectly fine...

MATTHEWS: As an intellect?

FRUM:  For what she was asked to do. As staff secretary, she was a really capable staff secretary. You know, you can be not good enough for the Supreme Court while being perfectly good for all kinds of other things. 

MATTHEWS: Did you work with anybody at the White House that‘s good enough for the Supreme Court?

FRUM:  There are people there, absolutely. 

MATTHEWS:  What do you think of Olson? Ted Olson? 

FRUM: He would be a perfect nominee - couldn‘t do better. 

MATTHEWS:  Why don‘t they nominate him? 

FRUM: Well, I‘m not sure he‘d take it. He‘s one of the most successful litigators in Washington and he likes to win. Supreme Court justices don‘t get to win or lose.  But he would be a great choice.  There are a lot of great choices. 

MATTHEWS:  Well, let‘s go through the factors.  You worked in the White House, you know how they think.  They want somebody who will serve, like 30 years.  They want to get them in there at 50.  Is the age factor still so hot with this president? 

FRUM:  I want a 30-year person?  Twenty years is also good. He did pick somebody who was 60. 

MATTHEWS: They seem to live to 85 on the court anyway.  You get 25 out of a 60-year-old.

FRUM:  A lot of long weekends.  The two most important factors are, you want somebody with a clear and consistent judicial conservative philosophy, which is not the same as a political conservative. 

Like, Felix Frankfurter was a big political liberal, but had a judicial conservative philosophy. And you want somebody who‘s got, really, a first-class mind.

I mean, this court may be the smartest court in American history. I mean, you look at the people on the other side - Steven Breyer, Ruth Bader Ginsburg, John Paul Stevens—these are brilliant intellects.  You cannot just send up somebody there and say, vote the right way.

MATTHEWS:  Because?

FRUM:  Because the other judges will make minced meat out of them.  What will happen is, if you write an opinion, it goes out to the legal community of America. They look at it and they say, this isn‘t convincing, this isn‘t good. 

MATTHEWS:  Would Clarence Thomas meet your standard right now? If he were nominated right now, the EOC, would you fight him?

FRUM:  I was for him. 

MATTHEWS: But you said the standard‘s risen.

FRUM: Look at this Clarence Thomas story.  This was a person who probably has come from more adversity than any Supreme Court nominee has faced in a long time. 

Rose from adversity, he went to Yale Law School, he held the two most senior civil rights jobs in the federal government where he stood for the principle of color blindness under incredible, under incredible criticism. 

MATTHEWS:  So you believe he had an commitment to opposition to affirmative action in most of its forms.

FRUM: And his friends knew he had a spine of steel.

MATTHEWS: OK, who‘s out there? You‘ve got a minute here, make your pick. You‘re the guy that brought down the columns, brought down the temple here, so you have to build it again.

FRUM: I have a feeling I‘m not the most popular person in the White House.

MATTHEWS:  But you‘re Samson.

FRUM:  Not...

MATTHEWS:  You are Samson, you brought down the temple here, so...

FRUM:  Maybe I need a haircut, but otherwise...

MATTHEWS:  Do you know that Saturday—well, let‘s put it this way.  Let‘s put it this way.  They have to go for someone with greater legal stature.

FRUM:  Yes.

MATTHEWS:  They have to go with someone with more of a track record of conservative political or judicial philosophy. 

FRUM:  Yes. 

MATTHEWS:  Is there anything other concern?  How about gender?  How about age? 

FRUM:  I don‘t think we need to worry about gender.  This administration has a great record on diversity.  Maybe a step away from the White House in terms of closeness. 

MATTHEWS:  No cronies, right? 

FRUM:  No cronies.  Because questions about presidential power are going to be before the court.  And it‘s just not going to be credible. 

MATTHEWS:  Question:  How do you find a person that can pass muster not with the intellectual right but the grassroots Christian conservatives as well, the people who ride in the bus and go vote as a group? 

Big power.  They got the president re-elected.  How do they meet your kind of concerns, their kind of concerns, and avoid a filibuster?  How do you do it?

FRUM:  There are 12 people, at least, who would be acceptable to everybody. 

MATTHEWS:  And would get a vote. 

FRUM:  And would get a vote.  As we saw with John Roberts—and, by the way, before him, Stephen Breyer—you can nominate a pretty liberal or pretty conservative person.  And if they‘re outstanding enough, people from the other party will recognize it. 

And just as the Republicans didn‘t filibuster Breyer, the Dems didn‘t filibuster John Roberts.  And that can be true.

MATTHEWS:  What is the worst that can happen tomorrow in terms of action by the federal prosecutor?

FRUM:  Well I think—I have no idea what he‘s going to do.  But I know this:  The president just gave himself a huge transfusion of political strength. 

MATTHEWS:  Right.

FRUM:  And whatever happens tomorrow, the president has a united party behind him. 

MATTHEWS:  Really?  Does he have a united government behind him? 

(LAUGHTER)

FRUM:   You mean, are there going to be leaks?  I don‘t know.

MATTHEWS:  No, if he‘s going to lose his top political kick, it was the chief of staff to the vice president—you can‘t call it a united government. 

FRUM:  I have no idea what‘s going to happen.  I know that the party is going to say the president...

MATTHEWS:  Bottom line, if people get indicted, do they have to leave the White House—as you see it? 

FRUM:  They probably do.  That‘s hard to imagine how they‘d stay.

MATTHEWS:  You agree they should leave?  You believe they should?

This is an informative question.  I‘m asking you:  Should people indicted in the White House serve in the White House? 

FRUM:  I think they probably have to go.  But again, who knows?  It is very possible. 

One thing to remember, this special prosecutor was taught by the very first special prosecutor—independent counsel who investigated Hamilton Jordan.  You remember this.  They investigated him for a year and, at the end of the year, closed up his books...

MATTHEWS:  So you think there‘s still a possibility of no case?

FRUM:  Not impossible. 

MATTHEWS:  Not impossible.  That‘s carefully stated. 

Thank you, David Frum.  Boy, he wants to keep his undefeated record going here by making such a small bet. 

(LAUGHTER)

Anyway, when we return, we will get reaction on the Miers withdrawal from Pat Buchanan.  Plus the latest on the CIA leak investigation with indictments possible tomorrow.  And also more about the vice president and Scooter Libby and the role they may have played in withholding information before that Senate investigating committee. 

You are watching “Hardball” on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to “Hardball.”  We are joined by MSNBC‘s political analyst, Pat Buchanan. 

Pat, David Frum was just here from a point of view somewhat different than you on the right.  But let me ask you this:  Are you happy? 

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  Oh, as I finished my column today I said in the word the title of the old gospel song “Oh Happy Day.”  The conservatives are elated.  Ann Coulter got it very well when she said, “It‘s morning in America again.”

MATTHEWS:  It was Edwin Hawkins Choir, by the way.  Let me ask you this:  Why did he pull the plug on the nomination today?  What happened last night? 

BUCHANAN:  What happened yesterday was the Washington Post came out and had her speech in 1993 where she said “sometimes judges have to act when legislators don‘t”—the essence of judicial activism.

Concerned Women for America, Jan LaRue, 500,000 people withdrew support.  This is was going down. 

Harriet Miers, I think, did it herself.  She has saved the president, the party and the movement a fratricidal civil war. 

MATTHEWS:  He didn‘t throw momma from the train? 

BUCHANAN:  No.  I think momma jumped from the train. 

MATTHEWS:  Good for her.

BUCHANAN:  Good for her.

(CROSSTALK)

BUCHANAN:  My little sister said it:  She‘s Joan of Arc. 

MATTHEWS:  Well said.  She didn‘t get burned at least by the clergy.

Let me ask you:  Do you think that the president will move a little right this time? 

BUCHANAN:  Oh, I think he has got to.  Look, he knows he made a terrible mistake here.  He savaged and divided and sundered his own base and he got nothing from the Democrats. 

He has now got to decide whether he‘s going to divide the Senate, Democrats versus conservatives and Republicans, or whether he‘s going to redivide his own base. 

I think it‘s like, Chris...

MATTHEWS:  Suppose he puts a nominee, a heavy weight...

BUCHANAN:  Let‘s say Edith Jones.

MATTHEWS:  OK, Edith Jones.  Isn‘t that a guarantee of a Senate filibuster?

BUCHANAN:  Sure.

MATTHEWS:  And they‘ll resort to the nuclear option.

BUCHANAN:  And they will break the filibuster.  We win.  And then if Edith Jones loses, you send up Michael Luttig.  If Michael Luttig loses, you send up McConnell.  If McConnell loses, you send up Alito.

You win this fight, Chris—it‘s the Cold War fight of our generation. 

MATTHEWS:  So put a heavyweight conservative...

BUCHANAN:  All of them should be heavily qualified, completely qualified—they can‘t be taken down on that—and conservative formed judicial philosophy.  A Bork philosophy, a Scalia...

MATTHEWS:  You would go with another Bork? 

BUCHANAN:  I would go with another Bork, of course.

MATTHEWS:  But Bork was Borked.

BUCHANAN:  Well, Bork was Borked because of personality more than he was philosophy—in my judgment. 

MATTHEWS:  No, because he was a true...

BUCHANAN:  He also ran up...

MATTHEWS:  ... original intent conservative who believed that the Constitution was written by men and we want to obey what they thought at the time, right? 

BUCHANAN:  We didn‘t have 55 votes, then.  The Democrats controlled the Senate.  They had won it in 1986, Chris.  We got it now.  We got our 55.  Two or three Democrats have got to go with us. 

Go with it, Mr. President.  For heaven‘s sakes.  Look, he through an interception and we‘re all walking out of the stadium; suddenly, the play is called back. 

(CROSSTALK)

MATTHEWS:  ... the new piece tonight that ran in Washington National Journal, a very respected, even-handed journal, that says that the vice president and Scooter Libby are already being focused upon by the special prosecutor, deliberately kept from the Senate investigating committee, the committee investigating why we went to war. 

All of these documents about speech drafts and stuff like that they were trying to get Colin Powell to use before the United National.  All this case they made for war, which may be very highly suspect—what do you make of them denying that information to the Senate investigators? 

BUCHANAN:  It appears to show a certain contempt for the Congress of the United States.  The Congress should stand up and demand these documents and now take a look at them. 

But, Chris, this is where this battle ought to be fought.  It is the Congress of the United States that should have challenged the president and vice president and everybody before they voted a blank check to give him for war. 

They didn‘t do it.  We are in trouble today because they failed in their responsibility. 

MATTHEWS:  To deliberate.  They never deliberated.

BUCHANAN:  They have the war power.  The Constitution gives it to them.  The founding fathers gave it to them and they gave it to George W.  Bush, who they know was going to go to war in order to get it out of the way for the election. 

That‘s why I hold them more culpable in many ways.  At least Cheney and the president believed in this war. 

MATTHEWS:  Yes.  And Libby.  And Cheney and Libby—they made the case through WMD to the world.  Do you believe that was the case for war though? 

BUCHANAN:  No, I...

MATTHEWS:  Or was it an ideological case?

BUCHANAN:  There is an ideological case among the neoconservatives who wanted to go to Iraq for strategic reasons, to create a base camp flanking Syria, flanking Iran, national greatness—all this nonsense. 

MATTHEWS:  Right.

BUCHANAN:  I think the president was sold this bill of goods after Afghanistan went down so easily:  Let‘s do Iraq.  Let‘s get another one.

MATTHEWS:  OK.  Let‘s talk about George W. Bush the man.  Because tomorrow may be a day of testing for him.  If there are a series of indictments close to him and he‘ll be able to feel the bullets going by, they‘re that close, the vice-president may get tagged by one of these bullets, who knows.  We don‘t know how close this gets to him.  Doesn‘t he face a lose-lose situation?  If I‘m out of the loop and he‘s totally innocent, apparently he is offended by news reporting that doesn‘t include him as being accountable for this behavior, is he out of the loop.  If he is in the loop, he‘s guilty.  In other words, if he is not involved at all in the White House behavior...

BUCHANAN:  I find it hard to believe that George Bush knows or cares about what Kristof is writing, or somebody named Joe Wilson.  He doesn‘t pay any attention to that.

MATTHEWS:  He is not concerned about a major threat of the reason for the war that was launched by Wilson?

BUCHANAN:  I think the person concerned was Cheney who reads that, and Cheney says who is saying this, George?  I don‘t think George Bush cared that much about it.  I don‘t think he was in on it. 

MATTHEWS:  George Tenet.

BUCHANAN:  I don‘t think George Bush was in on it.  George Tenet, I don‘t know about all that. 

But the president ought to do, look, it‘s going to come, Chris, you take hits like this.  If they are indictments, move and replace these fellows.

MATTHEWS:  Can we continue to see this unusual partnership between the president and vice president if there are indictments right up to the vice-president‘s chief of staff?  Or will this bring into question that relationship?  Open it up? 

BUCHANAN:  Well, the vice-president, I hope not.  But if he is named an unindicted co-conspiracy in some kind of conspiracy to violate the civil rights of Joe Wilson, it is a problem for the vice-president.  There is going to be a problem in the relationship.  And the vice-president has got to be hurt when his principle key guy he has worked with, if he is taken out with an indictment. 

MATTHEWS:  Thank you very much, Pat Buchanan. 

Up next, with an announcement one way or the other expected tomorrow in the leak case—the CIA leak case—what will be the impact on President Bush‘s second term?  We begun that conversation with Pat.  We‘ll continue it.  You are watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(NEWSBREAK)

MATTHEWS:  Welcome back to HARDBALL.  President Bush‘s Supreme Court nominee withdraws her name today and the White House braces for the grand jury‘s decision on the CIA leak investigation.  Tough days for the Bush team.  Are tougher one ahead?

I‘m with Republican strategist and former adviser to the first President Bush, Ed Rogers.  And the adviser to Democratic National Committee Steve McMahon.

Eve of destruction tomorrow?

ED ROGERS, FRM. BUSH SR. ADVISER:  I‘m sorry, what?

MATTHEWS:  Eve of destruction.

ROGERS:  I don‘t think so.

MATTHEWS:  You don‘t think there‘ll be—I know you‘ve been very loyal here.  No indictments tomorrow, you predict.

ROGERS:  I will stand by what I said before.  I don‘t think Karl Rove is going to get indicted for sure.  But I am not resigned to the notion that Scooter Libby is going to get indicted. 

(CROSSTALK)

MATTHEWS:  Why not?  What do you know that we don‘t know? 

ROGERS:  What we don‘t know is what we don‘t know.  I think what has happened is Washington has ripped itself into a frenzy with a lot of the critics and enemies of this administration...

(CROSSTALK)

MATTHEWS:  Excuse me, Ed.  You are saying nice things but we know the grand jury sits.  It has been held to the last day.  We know that something is up tomorrow. 

ROGERS:  That doesn‘t mean anything.  Yeah, well, something is up tomorrow, the grand jury goes out of business tomorrow one way or another.  But since we don‘t know, a lot of Washington is choosing to decide..

MATTHEWS:  I want you to advise people out there—I respect your opinion.  What kind of odds do you want them to get before they bet on no indictments? 

ROGERS: Hey, I don‘t want to give any odds. 

(CROSSTALK)

ROGERS:  I will put some of my money on truth, freedom and the infallibility of Karl Rove.

MATTHEWS:  Call them up if you want to—you‘re going to demand odds anyway.  Demand a spread at least. 

STEVE MCMAHON, DEMOCRATIC STRATEGIST:  Ed‘s right, there is a lot we don‘t know.  But there are a few things we do know.  We do know, for instance now, from several sources that are close to the investigation, and you know, I don‘t think newspapers will be reporting these things...

ROGERS:  What does that mean, close to the investigation? 

MCMAHON:  Well, I think generally...

MCMAHON:  It means lawyers for the parties involved. 

That Scooter Libby found out not from a reporter but from Vice-President Cheney.  We know for a fact that the Web site for the independent counsel just went up last week.  It doesn‘t suggest an investigation winding down.  We know that the special prosecutor has gotten expanded office space, which again, doesn‘t suggest an investigation that‘s winding down. 

MATTHEWS:  We knew a lot about Iran-Contra.  We knew a lot about Watergate.  We knew a lot about Bill Clinton‘s behavior long before there was any trial.  And we were talking about Bill Clinton‘s failure to face reality for months on this program, I got to tell you.  And waiting for him to admit the truth would be a long wait, OK. 

So, we can‘t wait for Scooter Libby to come out and tell us what he did.  We can‘t wait for Karl Rove to come out and tell us what he did.  So, we go to the source and tell us what he did.  And he doesn‘t want to us know it.  Let‘s face it, that is how it is done here. 

ROGERS:  Yeah.

MATTHEWS:  You want to put some money on this, by the way, I will match any dollar you want to put down there‘s no indictments. 

ROGERS:  Pick your pain, I am sticking with no Karl Rove indictment. 

MCMAHON:  Are you putting money there? 

ROGERS:  Sure. 

MATTHEWS:  The reporting has been so sound so far.  And what I found interesting—let me ask you this one, the role of the vice-president this week, unchallenged all week.  The vice-president‘s laid out there, according to “The New York Times” story, that he was the source of information about the undercover agent, Valerie Wilson, that he gave the information to his deputy, his chief of staff, Scooter Libby, who then, we now know from the reporting and from the testimony of Judy Miller, he gave to her. 

We know a chain of custody now that has gone from, apparently, George Tenet to the vice-president to the chief of staff of the vice-president, to the reporter, which to me, seems to meet most of the considerations of how you trace possible guilt in this case. 

ROGERS:  Well, there is a very specific question about whether or not any of that fits the statute that defines the underlying...

MATTHEWS: We know a lot...

ROGERS:  Also, there is also a big appetite to move the story.  “The New York Times” and others have concocted these scenarios where they tout as a big revelation that Libby and Cheney talked about this.  Aha.  Well, of course, they talked about it, just like they talk about everything else.  This was in “The New York Times.”  This wasn‘t a secret.

(CROSSTALK)

MATTHEWS:  How does that square with the president‘s original statement back in 2003 that the White House wasn‘t involved?

ROGERS:  We are going to find out.  I don‘t know.  We are going to find out.  All of that is going to come out.  But the notion that Libby and Cheney talked about it was a big revelation this week.  Well, it‘s ludicrous.  Like I said, there is just a big appetite to move the story. 

(CROSSTALK)

ROGERS:  Everybody is holding front-page space for this. 

MATTHEWS:  ... the little kid who put in his hand and it kept the dike from breaking.  You know, you‘re good at it.  (INAUDIBLE).  Steve, would you retort with some sound facts, please? 

MCMAHON:  Well, you know, there is a lot we don‘t know, but here is what we do know.  This administration took this country to war based on faulty information.  “The National Journal” has just reported today that this administration withheld critical intelligence documents, critical...

ROGERS:  Well, see, a big appetite to move the story.  They withheld draft copies of speeches that were not given.  Is that withholding documents?  Of course not.  It‘s things that went into the trash can. 

(CROSSTALK)

MCMAHON:  Everything that is being investigated now goes back to one simple fact, the administration concocted the intelligence to go into war, and misled the American public...

ROGERS:  The same as the Clinton administration believed.

MCMAHON:  ... and then they didn‘t, and then they tried to destroy...

ROGERS:  The Clinton administration, your crowd, believed. 

MCMAHON:  And then they tried to destroy anybody who disagreed with them.  And they‘re going to try to destroy Patrick Fitzgerald next.  That‘s my prediction.  They‘re going to go after this guy.

MATTHEWS:  Would you do that? 

ROGERS:  Hey, I will not attack...

MATTHEWS:  Would you criticize Fitzgerald? 

ROGERS:  I will attack these indictment if there is no underlying crime.  If there is no underlying crime here, then something is wrong, something weird is going on. 

MCMAHON:  So perjury and obstruction, Ed, is not an impeachable offense anymore?

(CROSSTALK)

MATTHEWS:  There was no underlying crime with Bill Clinton.  Bill Clinton was accused of perjury or obstruction. 

ROGERS:  He never got indicted. 

MATTHEWS:  He got impeached. 

MCMAHON:  He was impeached.

ROGERS:  He never got indicted.

MATTHEWS:  He was impeached. 

(CROSSTALK)

ROGERS:  Well, you‘re talking about the president on the stand, telling a bunch of lies that he admitted to, that he admitted to.

MATTHEWS:  In other words, perjury itself is sufficient to remove a guy from office, but not to indict a staffer in the White House? 

ROGERS:  You can‘t compare this to Bill Clinton and his misbehavior. 

MATTHEWS:  No, you can argue national security is at least as important as his...

(CROSSTALK)

MATTHEWS:  ... sex life...

(CROSSTALK)

MCMAHON:  Revealing the identity of a covert agent in the CIA? 

(CROSSTALK)

MATTHEWS:  I think the country is having this argument right now.  I‘m glad we are.  Thank you, Ed Rogers.  Thank you, Steve McMahon.

When we return, will the Miers withdrawal unify President Bush‘s base on the right?  Plus, the latest on where the CIA leak case may be heading.  More on that.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Will conservatives who split with President Bush on his nomination of Harriet Miers come back into the fold now that she‘s gone?  And will he select someone this time around that pleases his right-wing Republican base, or conservative Republican base? 

For answers, we turn to MSNBC‘s chief Washington correspondent Norah O‘Donnell, and “Newsweek” assistant managing editor Evan Thomas.

Norah, there was a note passed around today that suggested—I thought it was good advice—to understand what the president thought went wrong with this nomination, watch and see who he picks next. 

NORAH O‘DONNELL, MSNBC CORRESPONDENT:  That‘s right.  And we are hearing from White House officials that the president could name someone in the next day or two, to replace Miers to be his next Supreme Court nominee, which means they want to move very, very quickly and put this fumbled Harriet Miers nomination behind them. 

I think there are some key things involved here that have not been discussed, and that is the nexus between Harriet Miers‘ withdrawal and the CIA leak investigation.  Remember what Harriet Miers‘ day job is.  She is the White House counsel, and currently her deputy, a guy named Bill Kelly in the White House, has been consumed with the whole CIA leak case.  He has not had time to help Harriet Miers do the Supreme Court stuff.  So they‘ve been very busy in that office.  This now allows Harriet to get back to the work that‘s going to be needed at the White House, especially tomorrow, if the special prosecutor hands down indictments. 

MATTHEWS:  Well, you jumped to something I want to get back to.  But let‘s do it right now, is the White House preparing a legal defense if people are indicted tomorrow, a White House institutional defense, or let them hire and use their own lawyers? 

O‘DONNELL:  I have been told today that Karl Rove, along with his attorney, Mr. Luskin, who works for Patton Boggs, and others convened a conference call this morning where they began to plot the strategy. 

We have already known and I‘ve already reported that the Republican National Committee is prepared for a quote/unquote “multiple scenarios.”  They‘ve got the book out, if you will, to defend Karl Rove and Scooter Libby, if necessary.  And today they are taking it even steps further to prepare for this tomorrow about how they will act. 

MATTHEWS:  Let me go to Evan.  Do you think a pardon is in the future here for these guys if they get indicted?

EVAN THOMAS, NEWSWEEK:  No.  You know, I think that Bush is so ornery and—he‘s going to want to fight it out.  I mean, they may have to resign, but I don‘t—I think they are going to want to fight it out on the merits.  And who knows, we don‘t know, they may have a case. 

MATTHEWS:  But the president has been very respectful of this prosecution effort so far.  He said a dignified effort, he said not a word against the special prosecutor, Fitzgerald.  Can he turn on the dime tomorrow and say, I didn‘t know this guy was overzealous?  I‘m going to stop him right now in his tracks?

THOMAS:  No, I think he‘s going to say, let the process go forward.  He‘s not going to say anything, but he‘s going to support it, he‘s going to say, you know, Rove is a—I love him, he is a decent guy, he‘s an honorable guy.  Libby is too.  Let‘s let the case be tried.  He‘s not going to deny it.

MATTHEWS:  But the question is, will he treat them as his own, or will he say I am sorry to see them have to leave the White House, because they are going to have to leave? 

THOMAS:  Yes, he will wish them well on their way out. 

MATTHEWS:  Is anybody messing around with the idea of keeping them aboard?  Is anybody thinking about that? 

THOMAS:  I don‘t see how you...

MATTHEWS:  Norah, is anyone down there talking about keeping them aboard, not letting them leave the campus down there at the White House? 

O‘DONNELL:  That may be the case.  And let me tell you why, and I have not heard this directly.  But it is highly unusual to have a sitting White House official indicted.  In fact, the last time it happened, was a guy named Orville Babcock, who worked for Ulysses S. Grant over 100 years ago.  So, most of White House officials resign before they are indicted.  So if there are no resignations tonight, and if they are indicted tomorrow while they are sitting White House officials, this would be very unusual.  And there‘s clearly got to be a political or a legal strategy behind that.

MATTHEWS:  What, you mean, they would stay aboard to avoid being indicted?

O‘DONNELL:  Well, why wouldn‘t—if Scooter or Rove had an idea that they would be indicted, why have they stayed this long?  Why not leave the White House, get the taint away from the president and the vice president.

And why are they sticking around until now?  I don‘t know that strategy.  I don‘t know the answer to that question.  I have asked that question.  But there must be something there.

MATTHEWS:  You think is something here? 

THOMAS:  Well, it‘s an interesting thought that in the past—I just don‘t know enough of the history here.  I‘m pretty interested to hear it has been since Grant.  She does have a good point.  Why not quit now if you know you are going to be indicted tomorrow. Who knows? Maybe they will quit tonight or tomorrow morning.  We don‘t know enough. 

MATTHEWS:  Because there‘s probably so much freelancing in the White House that you wonder if they have the discipline to be told to leave. 

THOMAS:  Yes...

MATTHEWS:  I mean Haldeman and Ehrlichman were told to leave during Watergate by the president. He fired them. He took them out to Camp David and got rid of them. This president may not be exercising that kind of discipline over his people. 

THOMAS:  I have a hard time believing that Rove and Libby are going to be defiant that they‘re going to say, we‘re just going to hang onto our job and to hell you with...

MATTHEWS:  I think the president—every second that passes from any indictment that that person is still at the White House is a huge problem for the president. 

O‘DONNELL:  Right. 

MATTHEWS:  He becomes part of the defense, he becomes part of the problem when he should be part of the solution and act quickly and snap up these resignations faster than they can offer them. 

I wonder if it shouldn‘t be like Lindsey and O‘Neill where the president initiates the process to look even stronger.  I think, Norah, I think the president would look much stronger if he demanded resignations than if he simply accepted them.  I think he should be pro-active, forward-leaning.  If something bad happens, he should be part of the solution, not the problem.

Anyway, thank you, Evan Thomas, thank you, Norah O‘Donnell.

When we return, former Senator Alan Simpson of Wyoming, a close friend of Dick Cheney‘s, on the vice-president‘s role in the CIA leak case matter.  This is HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Republican ex-senator Alan Simpson of Wyoming served as the senator from Vice President Cheney‘s home state of Wyoming. For 18 years, he‘s seen his share of White House ups and downs and he knows the Bushes personally and Cheneys much more personally, in fact very well.

Thank you for being with us, Senator.  What do you make of the role the vice president may be playing here in terms of at least in the backgrounds of these indictments that are coming? 

ALAN SIMPSON, FORMER U.S. SENATOR (R-WY):  Well, I have no idea because Dick and I don‘t talk about that.  In fact, two nights ago, Dick was in Laramie, Wyoming, with George Bush the first, George Herbert Walker Bush and Dick were there as we celebrated the conclusion of a very successful $204 million capital campaign for our alma matter, the same alma mater of Dick Cheney. 

He is precluded from any discussion to talk with me about any of that.  We‘re very close for 45 years; we‘ve campaigned together.  So, I can‘t tell you a thing about that, or Scooter Libby.  I‘m here in a sea of bliss in Knoxville, Tennessee, where the babble of Washington has escaped all of us in Wyoming. 

Here we are with Howard Baker and Nancy Kassebaum and Vernon Jordan tomorrow and Art Buckwald, talking about humor and civility, which will never happen in Washington, D.C., with 24/7 chop ‘em up. 

MATTHEWS: Well, Mark Russell still laying them dead here, so there‘s some humor here in Washington.

Let me ask you about your party, the Republican Party in selecting Supreme Court nominees.  Do you think it‘s appropriate to have this—the role of abortion rights constantly being the deciding figure—question?  Apparently, this nominee that had to be withdrawn today or withdrew herself, gave a speech at some point in the last 10 years wherein she said, women have a right to self-determination, on issues like we‘ve just discussed or about to discuss. And that apparently was lethal to her nomination. 

SIMPSON: Well, I think it‘s very sad, Chris.  I have always believed that women should have this decision and I‘ve always believed too that men legislators shouldn‘t even vote on the issue.  I think maybe the punitive father should be involved, but men legislators should not be in this game. 

If the next thing that goes on is simply abortion and homosexual rights and stem cell and so on, we‘re going to start losing ground in my party.  They won‘t ever get me out of the party, but the right-wing kookals (ph) were never happy with me anyway.  They thought I was a baby killer—

I‘ve been through all that babble with them. 

MATTHEWS:  Do they decide who your next nominee is for president? Do they have that kind of power now in the party? 

SIMPSON:  Well, I don‘t know.  If they do, it kind of spooks me up to think that they can swing the stick like that.  And now I hear pure joy has descended upon all of them in the fringes and so on.  I tell people if they can some how stay away from Ralph Neas on the left and Phyllis Schlafly on the right, we may get a good nominee. 

I voted for seven of those people. I voted for seven of the nine people because of one reason; they were good lawyers, judicial temperament, bright people.  This other stuff is just trash on the side.  It‘s tedious to watch and the American people are tired of it.

I can tell you, I‘m all over the country, all the time.

MATTHEWS:  We had 22 Democrats vote against a superb nominee, John Roberts, who‘s probably the most interesting, probably the most fascinatingly perfect nominee I‘ve seen on television, at least, watching him all these days testifying.

And then you still had 22 Democrats, you have the power people like Ralph Neas, Norman Lear, all these liberal groups.  It seems like they got guaranteed, 20 on the right and 20 on the left, and maybe more on the right that they control in a sense.

SIMPSON:  Well, bless the 14 that are out there in the middle who are getting savaged by heavy lumber getting thrown at them from the right and the left. 

But, that little group of 14 in the middle , the seven Republicans and seven Democrats do have the power to shift the balance.  I heard Pat say, you know, drive for the vote, get the vote, take the filibuster. Well, let me tell you, pal.  When you play that game and go into the minority you‘ll wish you hadn‘t set the automatic fanny-kicker in option because it‘ll get you, it‘ll get you. 

MATTHEWS: It‘s great to have you, Senator, you‘re so refreshing, you‘re so positive, you‘re so debonair, you‘re so youthful, you‘re so wonderful, thank you, Senator.

SIMPSON:  Well, look, I look like Tony Curtis without hair.

MATTHEW:  OK, thank you, stay with MSNBC for live coverage and developments of both the Miers withdrawal and the CIA leak case. And tomorrow at 5 Eastern, we‘ll be back.

MSNBC‘s Tom Brokaw will be with us on HARDBALL.

Right now, it‘s time with “THE ABRAMS REPORT” with Dan.

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

,