updated 11/1/2005 12:02:36 PM ET 2005-11-01T17:02:36

Guests: Ann Coulter, Leslie Crocker Snyder, Daniel Gitner, Jeff Stein, Steven Clark

DAN ABRAMS, HOST:  Coming up, “Scooter” who?  President Bush changes the subject naming his new pick for the Supreme Court, Judge Samuel Alito. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Many on the left already coming out against the appeals court judge who‘s ruled in abortion cases while conservatives who oppose Harriet Miers are breathing a sigh of relief. 

And the White House replaces vice presidential aide “Scooter” Libby as prosecutors build a case against him, but many other prosecutors now saying this type of case can be tough to prove.  We talk to the man who prosecuted a high-profile singer for lying to a grand jury. 

Plus, a new theory emerges in the Pamela Vitale murder investigation, that the alleged murderer killed Daniel Horowitz‘s wife to avenge a dog‘s death.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket tonight:  President Bush nominates Judge Samuel Alito Jr. to the U.S. Supreme Court.  Republicans seem thrilled while Democrats are at best wary and at worst very worried.  This just four days after the president‘s first nominee to replace Justice Sandra Day O‘Connor, Harriet Miers, was beaten up by critics on both sides of the aisle, withdrew her nomination. 

Just three days ago Vice President Cheney‘s top aide, “Scooter” Libby, indicted in the CIA leak case.  Many are calling the nomination a smoke screen, a White House diversion tactic to take attention away from the leak, but then again he had to appoint someone at some point. 

OK, so who is Samuel Alito?  Where does he stand on abortion and the other hot-button topics? 

NBC‘s Chip Reid, who is also a lawyer is on Capitol Hill.  All right, Chip, so this is clearly a man who is qualified in the objective sense.  Meaning, he went to the right schools.  He had the right jobs.  He‘s got the right resume, so what makes him so controversial? 

CHIP REID, NBC NEWS CORRESPONDENT:  Well Dan, it is a paper record.  He has something that Harriet Miers and John Roberts didn‘t really have much of, he has a publicly available paper record going back 15 years on the court of appeals, hundreds of opinions in which he has addressed numerous hot-button controversial issues. 

First of all, of course, abortion, there‘s that dissenting opinion he had in the Casey case where he argued that a woman should under Pennsylvania law, that—he argued that that law should have withstood constitutional challenge that a woman should have to notify her husband before she gets an abortion.  But it‘s not just abortion; it‘s a long list of cases. 

And I‘ll tell you the liberal interest groups have already gone through all of these opinions, hundreds of them.  For example, race and sex discrimination, they say there‘s a long list of dissenting opinions in which if his position had prevailed it would have been much more difficult for those plaintiffs to prevail. 

Also on the power of Congress to regulate, for example, the machine gun case that we‘ve heard about today.  He argued that Congress did not have the power to determine whether or not machine guns could be bought and sold at gun shows.  So a long list, a big long paper record, something that the Democrats can really sink their teeth into and the liberal interest groups already have—Dan. 

ABRAMS:  All right.  Chip Reid, thanks a lot.  Appreciate it. 

REID:  You bet.

ABRAMS:  Joining me now Ann Coulter, conservative syndicated columnist, attorney, and author of “How To Talk To A Liberal (If You Must)”, and retired New York State Judge Leslie Crocker Snyder, who is also a Democrat joins us now. 

All right.  Ann, first reaction, Alito, a good choice? 

ANN COULTER, CONSERVATIVE SYNDICATED COLUMNIST:  I‘m totally relieved after Miers.  This is the anti-Miers, as you know, our—my, many of my people‘s opposition to Miers was that she may be a fine lawyer but you‘re talking about the highest court in the land.  And that just wasn‘t the sort of resume to be on the Supreme Court.  I don‘t care about his positions on the issues.  Judge Alito is imminently qualified to serve on the...

ABRAMS:  Wait.  What do you mean you don‘t care about his position on the issues?  I mean there are a lot of people who are qualified on the other side who you‘d say you do care about how they...

COULTER:  That‘s somewhat rhetorical.  I am saying I am so relieved...

ABRAMS:  OK.  All right.

COULTER:  ... that we have a qualified judge being nominated this time.  It is just such a sigh of relief.  And it was about qualifications and by the way, on the—I haven‘t had time to read through all of his decisions, but I mean the one thing that has come out in the decisions, including the ones that seem to be the hot button ones, that abortion ruling and the machine gun case, I mean he was clearly following Supreme Court precedent as it existed.  That seems to be what he wants to do.  And in fact, he voted to uphold the partial birth abortion statute...

ABRAMS:  Well that‘s what I was just going to—that was what I was going to talk to Leslie Crocker Snyder about.  All right, you know, everyone is going to talk about this one case in ‘91 that actually went up to the Supreme Court.  Alito‘s position was not the position adopted by the U.S. Supreme Court in that case, but—this is number one here.

He was—yes, he was the only dissenter in this case that was basically—the Pennsylvania law said women have to notify, not get consent, notify their husbands or the man if they want to get an abortion.

2000, though, he joined the majority that founded New Jersey‘s ban on late-term abortions unconstitutional, saying that the mother‘s health was not provided for, no exception there, and as a result he voted to strike it down.  So is he really sort of the worst of the worst when it comes to abortion? 

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE: Well, it‘s very hard to

say what the worst of the worst is.  I think it‘s a very frightening

appointment because he appears to be in every way qualified in terms of, as

you said, education and his experience, and yet the dissent you point out -

you point to exemplifies in a way what is really frightening. 

He actually pointed out that the only reason that he was upholding that law is because he was required to by the United States Supreme Court precedence.  This is the worst nightmare I think for the Democrats, really, because we are really worried about the Supreme Court moving tremendously to the right.  Of course, Ann is happy now because here‘s somebody who is qualified and embodies all the conservative philosophies. 

ABRAMS:  But you say he‘s the worst nightmare...

COULTER:  I like him more the more you talk about him.

ABRAMS:  Wait.  Let me just say, you say he‘s the worst nightmare but is he the worst nightmare because he‘s also confirmable?  Meaning...

SNYDER:  Exactly...

ABRAMS:  Meaning...

SNYDER:  Well that‘s my point.  He may be confirmable...

ABRAMS:  Right.

SNYDER:  ... because he‘s qualified, but he philosophically represents everything backwards.

ABRAMS:  But forget about qualifications.  I‘m saying like a Judge Luttig, all right, someone who‘s even more conservative, sort of the—he‘s sort of the hero of the right.  He might have had a harder time getting through...

SNYDER:  That‘s true.  That‘s true, so maybe I‘m using hyperboles.  He‘s not the worst nightmare.  He is frightening to many of us who believe very strongly in women‘s rights and civil rights and the separation of church and state because he‘s going to move the United States Supreme Court to the right and may undermine some of these basic rights we‘ve spent this last 50 years fighting very hard for.  This is a very dangerous appointment to those of us who believe in those rights because he may be confirmed.  He has qualifications but his philosophy is very undermining of rights. 

ABRAMS:  Ann was your concern when Harriet Miers came out and you said, oh boy, there‘s Harry Reid.  He‘s standing next to Harriet Miers.  She can‘t be all that good for us.

COULTER:  No that was just icing on the cake that a mediocre candidate had been recommended by a Democrat.  But, no, it was purely a question of qualifications.  And, I‘m glad to hear that Judge Alito is somewhat frightening to Judge Crocker.  I don‘t think his positions are going to be particularly frightening to Americans.  I mean the one case that is being cited here is where he said that a woman upheld a law that would require a woman to notify her husband if she was going to have an abortion.  In Gallup polls going back 20 years, 70 percent of Americans support that, so it‘s going to be a little hard to describe him...

SNYDER:  Well...

COULTER:  ... as out of the mainstream. 

SNYDER:  Well I think it‘s out of the mainstream because most people in this—many people in this country feel that the government should in no way interfere with a woman‘s right to choose.  It‘s not that Democrats are for abortion.  They are for—very strongly for a woman‘s right to choose and not having to notify her husband.  I mean that is so antiquated and so retrogressive I think that most women in this country, and I don‘t have the figures...

ABRAMS:  Here‘s what...

SNYDER:  ... is pretty scary.

ABRAMS:  ... everyone is wondering what would Judge Alito say about his own philosophy.  We‘ve got all the—he—surprised—he described it himself, oh my—the most enlightening comments ever.  Here he is Judge Alito. 

(BEGIN VIDEO CLIP)

SAMUEL ALITO, JR., SUPREME COURT JUSTICE NOMINEE:  Every time that I have entered the courtroom during the past 15 years, I have been mindful of the solemn responsibility that goes with service as a federal judge.  Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans.

(END VIDEO CLIP)

ABRAMS:  Yes, I was just sort of kidding that he‘s going to be—no Supreme Court nominee is going to be forthright when...

(CROSSTALK)

ABRAMS:  But the bottom—but these are code words, aren‘t they, Ann?  I mean the bottom line is when we hear all this talk about interpret the Constitution, be careful about not legislating, that‘s supposed to be sending a message to you.

COULTER:  To some extent, I mean, Chuck Schumer claims to oppose judicial activism, so I mean I agree with you that you don‘t get much out of these speeches.  We‘re not going to get that much out of the hearings other than the usual fun of watching Senator Biden make a monkey of himself. 

And if I could go back again to the husband notification, if the vast majority of Americans don‘t want that, if it is archaic, they can vote for it.  I mean even in the doomsday scenario for liberals that Roe v. Wade is overruled all that means is the states decide for themselves.  And I‘m quite sure husbands will never have to be notified...

SNYDER:  Well...

COULTER:  ... in the state of New York.

SNYDER:  Well in the state of New York I agree with you, but it‘s a little frightening for the country.  But what I would like to say is this.  I think we‘re rushing.  I think President Bush is trying to take our attention off some of the disasters going on in his administration.  We have someone who is qualified.  We need to know a lot more...

ABRAMS:  But see—Leslie, you know we‘re not going know a whole lot more.  I mean...

SNYDER:  Well I think...

ABRAMS:  I mean we‘re going to know—look, we already heard that he lost some big mob case when he was a prosecutor in the ‘80‘s. 

(LAUGHTER)

(CROSSTALK)

ABRAMS:  All right...

SNYDER:  That‘s not important...

ABRAMS:  No, but I mean that‘s sort of one the big things that‘s coming out.  You know as well as I do.  The only—I mean Judge Bork, all right, for example, in the hearings, he lost that nomination because of the hearings.  But he‘s like served now as the lesson in what not do when you‘re in front of the Senate.  Don‘t antagonize.  Don‘t condescend.  Answer the questions...

(LAUGHTER)

ABRAMS:  You know I mean it‘s pretty basic...

SNYDER:  I think...

ABRAMS:  ... and easy to know what not to do. 

SNYDER:  No, but we‘re going to get into a political mess and I‘m not a politician really...

ABRAMS:  Almost. 

SNYDER:  But—well, almost, but I meant that in the worst sense that I‘m not a politician.  But I think that are we going to get into a filibuster, are we going to get into this nuclear option?  Who knows what can happen.  It certainly sounds like Alito, because he‘s well qualified in terms of his education and his experience, his opinions are going to be torn apart.  We‘re going to get into this ideological battle and...

ABRAMS:  Are the Democrats going to have the ammo though on him? 

That‘s the problem.  I mean...

SNYDER:  That‘s close.  That‘s close.  I don‘t know. 

ABRAMS:  I don‘t—I mean I don‘t see—I mean I can see them being very unhappy and very dower about this, but I don‘t—but you got to...

(CROSSTALK)

ABRAMS:  ... have more than that. 

UNIDENTIFIED FEMALE:  I agree with you, but...

ABRAMS:  You got to have actual ammo. 

SNYDER:  But I mean this is the most divisive appointment I think.  I think that what is sad is I think the president could have appointed an African American, a Hispanic, a Latino person, a woman, and instead we‘re back to the old boy...

ABRAMS:  Priscilla Owen would have been better to you? 

SNYDER:  No, absolutely not.

(LAUGHTER)

ABRAMS:  OK.

SNYDER:  But what I‘m talking about is a qualified person who instead

we‘re returning to the old boy‘s club, which I really think is the Bush view. 

COULTER:  I don‘t think so.  We got a big farm team.  He could have found a woman or a minority...

ABRAMS:  All right.

COULTER:  ... with the same qualifications. 

ABRAMS:  Bottom line is, you know I‘m predicting we‘re not going to learn a whole lot—you know there‘s some conflict of interest questions that are going to come up, and you know all of this is going to be discussed, but my prediction is that they‘re going to be very unhappy, Democrats, but the reality is that he‘s going to get confirmed.  We‘ll see. 

SNYDER:  You‘re usually right, Dan...

ABRAMS:  I am usually right...

SNYDER:  ... sorry to say. 

ABRAMS:  ... but sometimes I‘m so wrong.  But, anyway we‘ll see.  All right, everyone is sticking around.  You both are sticking around, because coming up, Alito‘s nomination may have pushed “Scooter” Libby off the front page, but not for long.  The V.P.‘s former chief of staff due in court Thursday to be arraigned.  Many prosecutors say the charge could be tough to prove in general.

And prosecutors drop charges against the mom of the man accused of murdering Pamela Vitale, but now there‘s a new theory about why he allegedly killed legal analyst Daniel Horowitz‘ wife. 

Plus, the D.C. police are at it again, but this time it‘s not something controversial like Christmas, no, some schools are refusing to celebrate Halloween.  Look, we even have to pixilated the mother‘s picture.  We‘re talking about Halloween!

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

AMB. JOSEPH WILSON, HUSBAND OF VALERIE PLAME:  I think the president should fire him.  These are firing offenses.  These are not you are allowed to resign offenses.  These are firing offenses.  This is the national security of the country we‘re talking about. 

(END VIDEO CLIP)

ABRAMS:  Former Ambassador Joseph Wilson on the “Today” show today.  The man he wants President Bush to fire, shocker, Karl Rove, Bush‘s top political advisor.  Published reports have tied Rove to leaks of outed former CIA officer Valerie Plame, Ambassador Wilson‘s wife.  Special counsel Pat Fitzgerald didn‘t charge Rove, at least not yet when he announced indictments on Friday of Lewis “Scooter” Libby, Vice President Cheney‘s former chief of staff.

He‘s facing perjury, false statements, obstruction of justice charges in the case.  That could put him in prison for years.  So four issues from this case we‘re going to look at today.  One, how hard will it be for Fitzgerald to prove this type of case?  Will Libby plead?  Could Karl Rove still face charges?  And will President Bush pardon Libby if he pleads guilty or is convicted at trial or even before he goes to trial? 

“My Take”—this case will not be that tough to prove, but Libby probably will not plead.  Rove I think will not be charged, and I think Libby will get pardoned in 2007 or 2008 if he‘s convicted but what do I know? 

Dan Gitner knows what it takes to convict on perjury.  He recently left the U.S. Attorney‘s Office where he successfully prosecuted rapper Lil‘ Kim for perjury, specifically for lying to a grand jury.  Jeff Stein is national security editor at “Congressional Quarterly” and with is again retired New York Judge Leslie Crocker Snyder and Ann Coulter, syndicated columnist. 

All right.  Question one, Dan Gitner, how hard is it to prosecute?  I mean I talk to federal prosecutors who keep saying to me, hey, perjury cases are tough to win.

DANIEL GITNER, PROSECUTED “LIL‘ KIM” FOR PERJURY:  I think, Dan, most federal prosecutors and former federal prosecutors will tell you that perjury cases are probably among the most difficult to win.  And that‘s for several reasons. 

First, you not only have to prove as the government, the underlying truth of what was said, but you also have to prove that what was said was purposefully false.  So you have two sort of layered sections of proof that doesn‘t exist in the typical prosecution, and in addition, you have the fact that everybody tends to lie in their life and so that sort of looms large in the courtroom.  Well, why is this lie important?  Why did this man lie?  And so while motive is not an element, it still looms large in the courtroom. 

ABRAMS:  And that‘s exactly what “Scooter” Libby‘s attorney is saying. 

Mr. Libby testified to the best of his honest recollection on all occasions.  A person‘s recollection and memory of events will not always match those of other people, particularly when they‘re asked to testify months after the events occurred.  This is especially true in the hectic rush of issues and events a busy time for our government. 

But Ann, come on, I mean they have six government officials at least who are going to come forward—we‘re not talking about just the reporters versus “Scooter” Libby.  We‘re talking about government officials are saying, yes, well, we talked about it.  Yes, I sent him documents with the names on it.  It‘s going to be a tough argument that he just forgot. 

COULTER:  It sounds like—from listening to Patrick Fitzgerald‘s presentation, it sounds like he has a lot of evidence and he feels like he has a strong case.  So I don‘t know everything he has, but I tend to agree with that.

ABRAMS:  Leslie.

COULTER:  I mean one thing—if I could just say...

ABRAMS:  Yes.

COULTER:  ... one thing about the clip you played from Joe Wilson.  It‘s good to see he‘s still completely dissociated from reality.  The one thing we do know from Patrick Fitzgerald and his presentation is that Wilson‘s wife, Valerie Plame, was not a covert agent.  That was not the law being investigated.  The law being investigated was the espionage act under which there has been one prosecution ever and there is now indictment on here.  It is perjury and perjury is a serious offense. 

ABRAMS:  Wait.  What do you mean, they were still investigating a number of crimes here, and the fact that they didn‘t charge a certain one, as Fitzgerald points out...

COULTER:  He didn‘t even mention the Identities Protection Act.  He mentions the Espionage Act...

ABRAMS:  He didn‘t mention anything that wasn‘t charged and he said...

COULTER:  Yes he did.

ABRAMS:  ... I had—he said I had the...

COULTER:  Yes he did.  He talked about the Espionage Act. 

(CROSSTALK)

COULTER:  That was the law he was investigating. 

ABRAMS:  No, he was investigating a whole host of possible crimes...

COULTER:  Well that was the law he was investigating.  She was not a covert agent.  If she were a covert agent, then Libby could be charged with more than this.  He‘s not.  The reason he wasn‘t charged under the Espionage Act is that it‘s a very—we don‘t have an official secrets act.

ABRAMS:  Wait.

COULTER:  It‘s basically giving classified information...

ABRAMS:  How do you know? 

COULTER:  You can‘t just make it a crime...

ABRAMS:  Wait...

COULTER:  ... to be classified information.  It has to be giving classified into to an enemy in wartime. 

ABRAMS:  Right.

COULTER:  That‘s why Libby wasn‘t charged with that.

ABRAMS:  How do you know that?  How do you know that‘s why Libby wasn‘t charged with that? 

COULTER:  I know from reading the indictment and listening to Fitzgerald.

ABRAMS:  Because I don‘t know that from reading the indictment...

COULTER:  I know.

ABRAMS:  ... and listening to Fitzgerald.  Really? 

COULTER:  Yes. 

ABRAMS:  Leslie...

COULTER:  She wasn‘t a covert agent.

(CROSSTALK)

ABRAMS:  Do you know that?  Do you know...

(CROSSTALK)

SNYDER:  I don‘t know that...

(CROSSTALK)

SNYDER:  ... but what I do know are some things that I think are very important.  Special prosecutors in this country and in recent history have been really maligned, perhaps rightfully, perhaps wrongly, but I think we can all be impressed with this special prosecutor.  He‘s a-political.  We have every reason to believe that.

He‘s handed down a really masterful indictment.  It is not weak.  It is very strong.  As you pointed out, Dan, he‘s got all sorts of sources and witnesses there.  Perjury, I mean, I was a special anti-corruption prosecutor.  I had to prosecute perjury cases.  They are tough.  But this is a good perjury case from everything we can see. 

ABRAMS:  All right.  Jeff Stein, are you hearing anything about a possible plea?  I mean I‘m getting—I said before this came down that there must have been conversations between Libby‘s attorneys and Pat Fitzgerald before the indictments were handed up and as a result it seems they couldn‘t reach a deal at that point.

JEFF STEIN, “CONGRESSIONAL QUARTERLY”:  Yes, I think the assumption here is that the charges were piled on so that Libby could negotiate himself downward to a Martha Stewart and do quick time and be out if he was going to remain a loyal soldier. 

ABRAMS:  Dan, what kind of time are we talking about?  I mean let‘s assume—just give—I mean look, I know you can‘t know exactly, the federal sentencing guidelines are a little tough, we don‘t know exactly what he‘d plead to, but let‘s assume there was a plea here.  What kind of time do you think we‘d be talking about? 

GITNER:  I think it‘s impossible to answer that question.  I mean the guidelines, first of all, are advisory.  It‘s impossible to know based on what he would plead guilty to.  I do think the question with regard to plea negotiations is less whether or not Mr. Libby is interested in negotiating a plea and probably more a question of whether or not Mr. Fitzgerald is interested in talking to him.  He‘s got all the leverage here because I do think, as everybody else has said, that it looks like the case is very strong based on the indictment alone. 

ABRAMS:  But look, there‘s no way that they‘re going to be dealing in a vacuum.  I mean I understand, you know, federal prosecutors want to be very careful about picking numbers out because the guidelines are difficult and this and that, but as a practical matter when they‘re sitting there discussing a plea, and I understand it‘s not just up to the prosecutor, Leslie, but as a practical matter, Libby‘s attorneys are going to want some promises, at least what the prosecutor is going to ask for. 

SNYDER:  Well they...

ABRAMS:  They can‘t...

SNYDER:  They‘re not going to get a promise from a federal judge and I don‘t know...

ABRAMS:  Right.

SNYDER:  ... this judge‘s sentencing philosophy, but they‘re going to know it.  Obviously, the federal prosecutor‘s recommendation or letter, whatever form it will take, will be extremely important.  But you know, what‘s really sad about this to me is that all of this is probably a futility because the president is going to pardon...

ABRAMS:  We will get to that. 

SNYDER:  I know.  I‘m just saying though that it makes it sad. 

ABRAMS:  Well here‘s Senator Lindsey Graham talking about the issue of what‘s up with Karl Rove. 

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM ®, SOUTH CAROLINA:  A prosecutor will keep open his options because we don‘t know what‘s going to unfold in the course of Mr. Libby defending himself.  But I think the likelihood of Karl Rove being indicted in the future is virtually zero. 

(END VIDEO CLIP)

ABRAMS:  Virtually zero, Ann.

COULTER:  Yes, I think that‘s probably right.  I mean I don‘t know what he said before the grand jury, but I think we‘d have something by now...

ABRAMS:  Jeff...

COULTER:  ... if he were going to prosecute Rove. 

ABRAMS:  Jeff Stein, do you agree? 

STEIN:  I‘m not sure about that.  I think that‘s why—exactly why this case is being kept open.  He‘s going to sit down with Mr. Libby‘s counsel and say, what have you got to serve up?  And I think the White House is looking at one big shoe ready to drop on top of it. 

ABRAMS:  See, I‘ve said that either the prosecutor—either Fitzgerald was this close to indicting Rove or he was this close to saying, I‘m finished and I got nothing on Rove, but there‘s no middle ground here.  This is not going to be a long-term investigation.  I would think that this is going to be resolved in a matter of weeks.  Jeff, would you agree? 

STEIN:  That‘s right.  I mean there‘s not much to do except talk to Mr. Libby, perhaps, if the prosecutor, as it was said, is so inclined, wants to talk to Mr. Libby.  Libby wants to talk to the prosecutor, maybe they can make a deal.  He‘s facing a lot of jail time and that can make people rethink their position. 

(CROSSTALK)

SNYDER:  But is there any chance that Rove is actually Official A, or that he‘s in some way a source, or that he‘s been testifying before the grand jury? 

ABRAMS:  We know he‘s testified before the grand jury. 

SNYDER:  But I mean in terms of actually giving helpful information. 

ABRAMS:  Look, if they had him the way that they had “Scooter” Libby, we‘d know about it already.  I mean there‘s no way I don‘t think that he would have just said I‘m going to wait.  And I don‘t—it just sounded from the press conference as if Fitzgerald was saying that he‘s kind of done.  All right...

STEIN:  I agree, Dan.  If there‘s exculpatory evidence I think you‘d hear it out by now or you‘re going to hear it pretty soon. 

ABRAMS:  Yes.  All right.  Let‘s stick around because I want to talk about the issue that Leslie was just bringing up about the president possibly pardoning “Scooter” Libby.  It‘s happened plenty of times before.  Most recently, remember Iran-Contra?  Bill Clinton was pardoning a whole bunch of people before he left.

And a new theory emerges in the Pamela Vitale murder investigation.  Did the alleged killer murder Daniel Horowitz‘s wife because his dog was run over by a car? 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike.  This week we‘re in Delaware. 

Authorities are looking for your help locating Dentonio Bailey, 52, 5‘8”, 170, convicted of raping a child.  If you‘ve got any information on his whereabouts, the Delaware police are looking for him.  Failure to register, 302-736-7111.

Be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a possible motive in the Pamela Vitale murder investigation.  Could the suspected killer‘s motive be that he was avenging his own dog‘s death?  Details after this. 

(NEWS BREAK) 

(BEGIN VIDEO CLIP)

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETRY:  Our counsel‘s office has directed us not to discuss this matter while it continues.  And that means me not responding to questions about it from this podium. 

(END VIDEO CLIP)

ABRAMS:  It‘s a good thing we got clarification on what that means.  It means he‘s not going to answer any questions about it.  The White House press secretary, Scott McClellan, not answering any questions about Democrats calls for President Bush to fire Karl Rove. 

Before we talk about the issue of a possible pardon for “Scooter” Libby or anyone else, Ann Coulter you were saying before the break about from reading the indictment and listening to Pat Fitzgerald you felt that it was clear that the issue was not, is Valerie Plame a covert agent or not.  And so I had our team go back and look at the transcript.  And here‘s what was said. 

Question:  Can you say whether or not—whether Mr. Libby knew that Valerie Wilson‘s identity was covert?  And whether or not that was pivotal at all in your inability or your decision not to charge under the Intelligence Identity Protections Act?

Fitzgerald:  Let me say two things.  Number one, I‘m not speaking to whether or not Valerie Wilson was covert and anything I say is not intended to say anything beyond this.  She was a CIA officer from January 1, 2002 forward.  I‘ll confirm that her association with the CIA was classified at that time through July 2003, and I‘ll—all I‘ll say is look, we have not made any allegation that Mr. Libby knowingly intentionally outed a covert agent. 

How does that say to you that maybe what the problem was that there wasn‘t knowing or intentional? 

COULTER:  No, no, no, it‘s her employment with the CIA was classified.  In theory, a very broad theory, that could be prosecuted under the Espionage Act.  If she were covert, she‘s covert...

ABRAMS:  Right.

COULTER:  ... then Rove and Libby would both be facing charges on that...

ABRAMS:  No, not necessarily.  The law requires all sorts of knowledge on the part of Libby and it sounded to me like what Fitzgerald was saying...

COULTER:  No, that‘s what he‘s talking about with the Espionage Act.

ABRAMS:  How do you know it‘s the—I mean how do you know it‘s the Espionage Act as opposed to what the question specifically referred to...

COULTER:  Because...

ABRAMS:  ... which was the Intelligence Identity Act. 

COULTER:  ... when Fitzgerald talked on his own—you‘re quoting the reporter‘s question—when Fitzgerald talked on his own, he didn‘t mention that law.  The one law he mentioned...

ABRAMS:  Yes.

COULTER:  ... was the Espionage Act and also the fact that the Cubans and the Russians already knew she was a covert agent.  But that‘s outside the four corners of the indictment...

ABRAMS:  Yes and...

(CROSSTALK)

ABRAMS:  ... look, I think that there‘s no question that there was an investigation into the Intelligence Identity Protection Act, and I didn‘t hear anything...

COULTER:  Yes and it probably took six seconds to see that she‘s back from her foreign assignment where she had to be over six years ago and her identity had already been released to both the Cubans and the Russians.

ABRAMS:  Well, if it was so no big deal I would think this investigation would have been over years ago.

COULTER:  No, he was looking at the Espionage Act but the problem with the Espionage Act is it‘s really leaking classified information to enemies during wartime.  It‘s a very broad (INAUDIBLE).  And by the way, he said in his press conference that that was the law he was looking at...

(CROSSTALK)

COULTER:  ... and we don‘t have an official secrets act like the British do.

ABRAMS:  All right.  Just on—I think what Ann is trying to do here and I appreciate what she‘s trying to do, but it is an effort to confuse my viewers so much about what the particular laws were they were being investigated...

(CROSSTALK)

ABRAMS:  ... and look, it‘s not foolish.  It‘s just—I just don‘t see anything, and, Jeff, I just got to move on, but I don‘t see anything to support what Ann is saying. 

STEIN:  The origin of the law is very interesting.  It‘s that the—these radical organizations outed a CIA agent in Athens.  And their defense, or at least their rhetorical defense was the truth that that agent had been identified in foreign publications before and they were merely repeating it.  And that‘s an interesting parallel here. 

I mean the legislation was passed because of that.  And so this woman, Valerie Plame, had a 20-year history at the CIA in operations and clandestine operations...

ABRAMS:  Yes.

STEIN:  ... in the most sensitive areas of clandestine operations, which is loose nukes.  So this is a hard argument that she‘s making...

ABRAMS:  All right.  Let‘s move on.  I want to talk about this issue of possible pardon.  Remember, you know what a pardon—a pardon would mean to be convicted, he could be charged, he could be whatever, plead guilty, and the president could step in and say, it‘s all wiped away. 

Here‘s—remember it happened in Iran-Contra, people awaiting trial, Caspar Weinberger, former defense secretary, Duane Clarridge, former senior CIA official convicted—some were convicted and awaiting sentence, Clair George convicted and actually sentenced.  My cousin, Elliott Abrams, and Alan Fiers, as well as Robert McFarlane.  So this is not something that is unheard of, but Judge Snyder, you think it would happen? 

SNYDER:  I think it may very, very well happen, and I think it will be a disgrace if it does, but it‘s happened on the Democratic side and the Republican side before.  Think about it, this is a political act that Libby was committing if we understand the context of it at all.  He‘s holding the brief for the president basically in support of a war that many Americans have come to believe rightly or wrongly is indefensible.  And so he‘s leaking information to get back at Wilson—that‘s the theory—and it‘s a purely political act, bolstering his administration and his president‘s view. 

ABRAMS:  Yes.

SNYDER:  So what is his president going to do?  He‘s standing up for his president. 

(CROSSTALK)

ABRAMS:  Ann, would you encourage a pardon? 

COULTER:  No, and I think that analysis is not—I mean the analysis is correct.  I think the conclusion is wrong.  It wasn‘t a political act committing perjury.  He wasn‘t charged with leaking information because Valerie Plame wasn‘t a covert agent...

SNYDER:  Well of course it‘s not a political act...

(CROSSTALK)

SNYDER:  It‘s not a political act to commit perjury...

(CROSSTALK)

SNYDER:  ... but in defense of his president and his president‘s policy he‘s doing what he thinks...

COULTER:  Right...

SNYDER:  ... his president wants him to do. 

COULTER:  ... but there was nothing illegal about that.  I think first of all, he‘s not Clinton, so he‘s not going to be selling pardons.  This is not Iran-Contra where, you know, what these men were doing, perhaps mistakenly, but they were trying to get American hostages back. 

SNYDER:  Wait a minute, Ann...

COULTER:  They were trying to fund an anti...

ABRAMS:  All right.  I don‘t want to get into a debate about Iran-Contra. 

(CROSSTALK)

SNYDER:  No.  No...

(CROSSTALK)

SNYDER:  But you know what...

(CROSSTALK)

COULTER:  OK, I‘m just saying this is completely different. 

(CROSSTALK)

COULTER:  If he is convicted...

ABRAMS:  Hang on.  Hang on.

(CROSSTALK)

COULTER:  If he is convicted of perjury, he simply committed a crime. 

This isn‘t in defense of the president‘s...

ABRAMS:  Go ahead, Leslie. 

(CROSSTALK)

ABRAMS:  Hang on.  Hang on. 

(CROSSTALK)

ABRAMS:  Hang on.  Hang on. 

(CROSSTALK)

ABRAMS:  Leslie, go ahead. 

SNYDER:  I agree with that totally but I don‘t think that‘s how the president is going to see it.  He already came out and called “Scooter” Libby a hero or other words to that effect, someone who...

COULTER:  He might well be.

SNYDER:  ... is a patriot.  Well...

COULTER:  But not for committing perjury...

SNYDER:  Not to me he‘s not.  Well that‘s not the point though.  You‘re making a legal distinction that I don‘t believe this president is going to make.  He‘s going to—if—that could happen before a conviction, assuming there is a conviction.  He is presumed innocent until...

ABRAMS:  Right.

SNYDER:  ... but before or after I personally think it would be after if there is a conviction...

ABRAMS:  Yes.

COULTER:  If there is a pardon, I think...

(CROSSTALK)

SNYDER:  ... and I think it will be done because this president is very loyal to the people who stand up for him.  And I don‘t think he will say the perjury indictment is simply a political act and he will exercise...

(CROSSTALK)

ABRAMS:  Very quickly, Dan Gitner, that sort of stuff would drive a federal prosecutor crazy, right?  If Fitzgerald goes through all this two years of investigation, then they go to trial and then the president would pardon him if he were convicted? 

GITNER:  Absolutely, it would drive...

SNYDER:  It would drive a lot of people crazy.

GITNER:  ... anybody nuts. 

(LAUGHTER)

GITNER:  You know it‘s more than just a political act standing up and lying.  I think what the government would say is that this is an extremely serious crime.  Again, this is somebody obstructing an investigation into a national security breach or a leak and that in and of itself arguably is just as important as the leak itself.  I think that‘s what the government or the special prosecutor‘s response would be and it would drive the special prosecutor crazy to think that the president would do that...

(CROSSTALK)

ABRAMS:  I got to...

(CROSSTALK)

ABRAMS:  I got to wrap it up.  Dan Gitner is fresh out of the U.S.  Attorney‘s Office, gets his first chance to finally get to speak his mind, so it‘s good to have you on the program. 

GITNER:  Thank you, Dan.

ABRAMS:  Jeff Stein, Ann Coulter, Leslie Crocker Snyder, thanks a lot. 

COULTER:  Thank you.

SNYDER:  Thank you.

ABRAMS:  Coming up, a new theory in the Pamela Vitale murder case.  Could the alleged murderer have killed Daniel Horowitz‘s wife because his dog was run over by a car?  Details up next. 

And later, students at one elementary school near Boston will not be celebrating Halloween because parents are complaining that Halloween is too religious.  What‘s next?  No Groundhogs Day?  It‘s my “Closing Argument”.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a possible new motive in the Pamela Vitale murder investigation.  Was Daniel Horowitz‘s wife killed as a result of a dog getting hit by a car?  The details after the break. 

(COMMERCIAL BREAK)

ABRAMS:  Now to a twist in the investigation into who killed Daniel Horowitz‘s wife, Pamela Vitale.  Late Friday the mother of the teen suspected was released.  Prosecutors had originally charged Scott Dyleski‘s mom as an accessory to the crime.  But now they‘re counting on her testimony if the case goes to trial.  The D.A. agreed to drop the charges in exchange for Esther Fielding‘s testimony against her son and they might have her already on tape. 

And the “Contra Costa Times” newspaper is reporting the possibility of another theory about the murder, suggest that Dyleski killed Pamela Vitale because he may have thought she was a neighbor who had accidentally run over his dog.  Turns out she wasn‘t the one.  And if that theory turns out to be true, that could be even worse for the defense. 

It would mean Dyleski allegedly went to the Horowitz‘s home with the intent to kill.  Steven Clark is a former prosecutor and a friend of Daniel Horowitz‘s.  He joins me now.

All right, Steve, first let me ask you about this new theory here.  What do you make of it?  The idea—it has always seemed odd, has it not, the idea that he ordered this pot, the stuff to grow pot online and had it delivered to the Vitale home and some—for some reason that led to a brutal murder. 

STEVEN CLARK, FORMER PROSECUTOR:  That‘s right, and we‘ve all tried to find the why to this mystery.  Why would this kid do what he did in such a horrific fashion?  And that‘s been the most difficult thing in the case.  We know the who and the how, at least that‘s what we think we know, but we don‘t know the why.  But the dog story that this kid was avenging the death of his dog really doesn‘t help the defense at all because if he went up there to avenge the dog‘s killing, which by the way was two weeks before Pamela was murdered, then he went up there with the intent to kill.  And the fact that he may have killed the person who didn‘t hit the dog doesn‘t help him at all because the intent to kill transfers to Pamela‘s case. 

(CROSSTALK)

CLARK:  I think there‘s a broader question too when you‘re a defense

attorney.  You have to be careful about putting on a defense that the

average juror is going to think is preposterous.  Because the average juror

we‘ve all been through difficult times and had traumatic events...

ABRAMS:  Yes.

CLARK:  ... but we don‘t as a result of a pet being killed...

ABRAMS:  Yes.

CLARK:  ... go up and bludgeon an innocent woman to death...

ABRAMS:  Yes...

CLARK:  ... so they‘re not going to buy that.

ABRAMS:  It‘s not going to help them.  Do you know...

CLARK:  No, not at all.

ABRAMS:  Do you know anything about the voracity of this?  Do you know whether Daniel is under the impression that this is actually the theory the police are working under?

CLARK:  I don‘t know that.  I really don‘t.

ABRAMS:  All right.

CLARK:  I don‘t think they‘ve eliminated the credit card theory because even though the hydroponics equipment was supposed to go to Dyleski‘s house, he still may have gone up there because it never got delivered because the credit card was actually in Pamela‘s name.  So, he still may have gone to look for the equipment, but I don‘t know about the voracity of the dog story at this point. 

ABRAMS:  All right.  So the mother of Scott Dyleski was charged and then they quickly dropped the charges.  I mean this was just a squeeze play, right? 

CLARK:  I think it was and I think it‘s - you know they‘re playing hard-nose in this case and that‘s exactly what they should do, because this is a first-degree murder case.  I‘m sure that Ms. Fielding auditioned for this dismissal and that meant that she was on videotape talking exactly about what happened here, and they would have never made this agreement without knowing exactly what she was going to testify to.  Because let‘s face it, she‘s still Scott Dyleski‘s mother...

ABRAMS:  Right...

CLARK:  ... and two years from now when this goes to...

ABRAMS:  As a legal matter, Steven, there is no parent/child privilege. 

CLARK:  That‘s correct.

ABRAMS:  What is a parent allowed to do, even if he or she suspects that a child has been involved in a horrible crime like this.  Is a parent allowed to help in any way? 

CLARK:  No, they‘re not allowed to help, but they don‘t have to provide any assistance.  They can just stand silent.  But if they take the affirmative duty of hiding evidence or hiding their son, then that becomes a crime.  Now, obviously, jurors look at things like that, well, this is his mother, I would expect that.  But in a first-degree murder, she still could have got a lot of time.  But she has no privilege.  She could have just said, look, I don‘t want to have anything to do with this.  I‘m not cooperating and they couldn‘t have done anything to her.

ABRAMS:  How is Daniel holding up? 

CLARK:  I think he‘s doing OK.  He‘s still in shock.  This is all just horrific and it‘s very raw to him.  And he‘s allowing the D.A. and the police to continue to do their work.  And he‘s very happy with the way the investigation is going. 

ABRAMS:  Well I should say that, you know, I have not spoken to Daniel in a while.  I think he‘s you know trying to keep a little bit of a distance from the media...

CLARK:  He is.

ABRAMS:  ... so he‘s not seen as somehow impacting the investigation. 

So let me just say...

CLARK:  Right.

ABRAMS:  ... that Daniel, you know our thoughts are still with you here, and we‘re hoping that the—you know that you‘re holding up all right.  All right.  Steven, thanks a lot. 

CLARK:  Thank you, Dan. 

ABRAMS:  Coming up, no ghosts or goblins this year at one elementary school near Boston.  The school banned Halloween.  Who got spooked?  I threatened to trick those responsible. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again.  Our search this week is in Delaware.

Police need help in finding Andrew Hritz, 20 years old, 5‘8”, 160, convicted of raping a child under the age of 12 without consent.  If you have any information on his whereabouts, please contact Delaware‘s Troop Four State Police, 302-856-5850.

We‘re back in a moment.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—it has come to this.  Somehow, even Halloween has become a political/religious issue.  Who would have thought the P.C. police would be able to spook school official into making Halloween off limits?  Well in Newton, Massachusetts, there are no Spiderman‘s, ballerinas, Darth Vader‘s or Harry Potters at Underwood Elementary School today.  The principal forbid the teachers, staff and students from wearing costumes and also canceled all Halloween arts and crafts activities. 

But it‘s hard to call Principal Dr. David Castellini a ghoul or goblin.  Last year, Castellini himself got into the spirit.  He even grew a beard so he could more accurately portray the Boston Red Sox center fielder Johnny Damon.  No, this year he just struck out by caving into pressure from a handful of ghastly parents who threatened to boycott school.  Some because they oppose the celebrations on religious grounds, claiming Halloween has pagan or satanic overtones, and others who advocate the separation of church and state. 

One American studies professor quoted in news reports saying Halloween

quote—“really gets to the heart of minority rights and minority feelings in a pluralistic culture.”  Oh, please! How do you explain this one to the kids?  Honey, you can‘t go to school today as a ballerina because Halloween is not just about candy corn and jack-o-lanterns. 

No, it‘s a far more serious religious holiday.  Beetle Juice, Beetle Juice, Beetle Juice, what world are we living in?  If you don‘t want to have your kid dress up, don‘t.  And you know what else?  I hate to break the news to you.  It‘s not a real holiday.  People still go to work.  It‘s kind of like taking Groundhog‘s Day seriously.  Sure, if you look back far enough, you can trace Halloween rituals to more than just fun and games. 

That‘s not the reality today.  The few who still adhere to the origins of Halloween are a few fringe so-called witches.  What about Valentine‘s Day?  After all, February 4 celebrates the martyrdom of a Catholic priest named Valentine who conducted secret marriages.  Will parents now insist that their kids not give valentine cards at school because they might actually be honoring a religious tradition?  Lighten up! These are at worst Hallmark holidays and at best just fun.  Don‘t make me come over there and egg and toilet paper your house. 

Coming up, your e-mails on the CIA leak investigation.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday, special counsel Patrick Fitzgerald indicted the vice president chief of staff, “Scooter” Libby, five charges.

Brenda in Tacoma, Washington, “How much more money are we going to spend to see if we can find someone to blame for something even though it doesn‘t appear that anyone did anything wrong in the first place?  I don‘t know why Mr. Libby lied, but I would hope that he did it to protect this country in a genuine way.”

Well Brenda, I‘m not willing to just hope his alleged lies were for a good reason.  Remember, Fitzgerald is saying he doesn‘t know if the underlying law was broken because he‘s saying Libby lied in the investigation.  That doesn‘t mean no one did anything wrong. 

Steve Zorowitz, “The indictment does not claim that Libby lied to the grand jury about when he knew of Plame.  The charges are that he lied about his conversations with the reporters.  He‘s allowed to lie to reporters you know.”

Yes, I did know that Steve.  And that just shows that you may not have read the indictment.  He‘s accused of lying to the grand jury about what he told reporters, not for lying to reporters. 

From Olympia, Washington, Lorraine writes, “Everyone points out how dumb Libby‘s behavior was.  Why has nobody pointed out that it‘s likely because he was the designee to take the fall for the administration?”

Well some Democrats have said that.  That‘s a political issue but nothing from the indictment really proves that. 

Doris Allen in Cincinnati.  “(INAUDIBLE) Dan, if it‘s a crime to tell someone that someone else is a CIA agent, how come it‘s not a crime to print that fact?”

A lot of you asked that, Doris.  It‘s a good question.  Why is Robert Novak, for example, not been prosecuted?  Well, because it‘s not illegal for a journalist who‘s not in the government to publish the name of a single agent.  Now should he have done it?  It‘s a fair question to ask.  I‘m not sure he needed to, but it‘s not a legal issue. 

Finally Karina Herman on former “Baretta” star Robert Blake‘s civil case where he‘s being sued by the family of his wife Bonny Lee Bakley—was killed.

She writes, “I‘m wondering why the Robert Blake civil case is getting almost no coverage.  I can assure you it‘s not due to a lack of public interest.  I know at least 30 people that have followed this trial for nearly three years.”

Karina, I hate to tell you this, but you and your 30 friends and me are in the minority on this one.  It is due to a lack of public interest.  I think it is interesting.  Not many others care much about the case, the civil case. 

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.

It seems that we have a minute left, so before we go, I want to show you a picture because I do like Halloween.  ABRAMS REPORT pick for a best Halloween costume.  This is little bumblebee.  That‘s Madison Spielberg (ph), our executive producer‘s 1-year-old daughter. 

(LAUGHTER)

ABRAMS:  This is her very first Halloween costume.  And we wish her a happy Halloween.  She wants me to let you know that she is a good mother, that Madison wore socks when they went out.  That she would not have taken her out without those socks on.  Hey, Madison! Happy Halloween to everyone.  Have fun tonight.  And don‘t listen to those people in Newton, Massachusetts.  Madison is not.  Madison is just saying no. 

(MUSIC)

ABRAMS:  That‘s it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  I should have brought a mask or something.  Have a good night.  See you tomorrow. 

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

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