Guests: Dick Sauber, John Kerry, Ron Christie, Jonathan Capehart, Mike Grunwald, John Harwood
MIKE BARNICLE, GUEST HOST: The judge ruled, Do not pass go, do not collect $200. Scooter Libby is going to jail.
Let‘s play HARDBALL.
Good evening. I‘m Mike Barnicle, sitting in for Chris Matthews.
Scoop to jail. A federal judge today told Scooter Libby, Vice President Cheney‘s confidant and former chief of staff, that he won‘t delay his two-and-a-half year prison sentence in the CIA leak case. The ruling could send Libby to prison within six to eight weeks.
In a moment, Senator John Kerry will be here with us to assess his reaction to the Libby sentencing and much, much more. And later, MSNBC‘s Pat Buchanan and former Bush White House aide Ron Christie, who was first hired by Scooter Libby, will be here to debate whether President Bush should pardon Libby.
But first, HARDBALL‘s David Shuster is live at the courthouse with more on today‘s decision—David.
DAVID SHUSTER, HARDBALL CORRESPONDENT: Well, Mike, the judge today said that the evidence was overwhelming of Scooter Libby‘s guilt on perjury and obstruction of justice. And the argument in front of the judge was whether or not Scooter Libby should be allowed to stay out of prison pending his appeal. The standard in order to be able to stay out of prison is for the defense to raise some sort of issue that is known as a “close call,” that would possibly, possibly lead to the conviction being overturned.
There were three issues that Scooter Libby‘s defense team presented today, the first two related to decisions that the judge made at trial regarding law and evidence. The judge quickly said, No, those are not close calls. And then the third issues having to do with the status of the independent counsel, special counsel Patrick Fitzgerald, and whether or not he had the proper authority to bring these charges. The judge also ruled against Libby on that, saying that issue was also not a close call.
And to give you an indication, Mike, if how overwhelming the decision was for the prosecution and against the defense, there were 12 legal scholars, including Viet Dinh, Judge Bork, Alan Dershowitz, who weighed in for Scooter Libby on this issue, this constitutional issue about the special counsel. The judge noted that that submission was so lacking in substance, he said, The submission was not something I would expect from a first year law student.
Once the judge had made his decision, then Scooter Libby left the courtroom. His wife was in tears. She was obviously very shaken up by the decision that Scooter Libby would not be able to stay out of jail pending his appeal. Scooter Libby went to the probation office and began the process that will lead to him reporting to a federal prison sometime in the next six to eight weeks.
At the White House today, there was essentially no reaction to the news except for a couple of statements from White House officials, who referred to the appeals process continuing. In other words, that was taken to mean that the White House is not ready to issue a pardon right now, at least.
And so at this point, the only thing that could essentially keep Scooter Libby from reporting to prison in the next six to eight weeks will be if Scooter Libby suddenly had his memory refreshed and went to prosecutors and said, Remember all of those conversations that I said I couldn‘t remember about Vice President Cheney regarding the leak of Valerie Wilson and regarding my testimony to the FBI and grand jury? Well, now I remember those conversations.
Short of that and short of essentially spilling the beans on Vice President Cheney—and again, prosecutors suspect that Libby does have information he‘s not sharing about the vice president—short of that, Scooter Libby is facing two-and-a-half years in prison starting sometime this summer—Mike.
BARNICLE: So David, it would seem from that report and everything else you‘ve picked up that the obstruction charge was probably in the judge‘s mind first and foremost in his ruling today. Would that be correct?
SHUSTER: I think that‘s correct, but also on the minds of prosecutors. I mean, Mike, they kept referring during the trial and again during these arguments that when Scooter Libby lied to the FBI and lied to the grand jury, as a jury found that he did, the prosecutors were not able to essentially make a decision about the underlying crime.
In other words, everybody knows that Valerie Wilson, that her identity was leaked, that her identity was compromised. The question was, Was that in and of itself a crime? And whether it was a crime or not, the prosecutors said they could not come to a decision on that issue because, as prosecutor Fitzgerald said repeatedly during the trial and this process, the investigators, through Scooter Libby‘s lies to the grand jury and the FBI—the investigators had sand thrown in their face, so the only thing that Fitzgerald could charge was accusing Libby of obstructing the investigation and of perjury.
As far as whether or not there was a crime in leaking Valerie Wilson‘s identity, that is an issue that prosecutors could not decide. They could not bring charges on that, again, they said, because Scooter Libby obstructed the investigation.
The judge said again today the evidence was overwhelming, and the judge, just to repeat, said there were no issues in the course of this trial or related to Patrick Fitzgerald that the judge thought was even a close call as far as having these convictions overturned on appeal, and so the judge ruled Scooter Libby must report to prison in the next six to eight weeks.
BARNICLE: David Shuster. Thanks very much, David.
Dick Sauber is a former federal prosecutor, and he represented “Time” magazine reporter Matt Cooper, one of the journalists at the center of the CIA leak case. What do you think Alan Dershowitz‘s reaction is going to be when he hears that the judge said a first year law student would have sent in that appeal?
DICK SAUBER, MATT COOPER‘S FORMER ATTORNEY: Yes, his reaction probably not as important as the reaction of the judges on the court of appeals, to whom Libby will now appeal to seek a stay of his prison team. My gut feel is that the judges on the court of appeals for the District of Columbia are going to have a lot more regard for the opinion of those law professors, and in all likelihood, I think actually may stay the imposition of the prison term pending the decision on appeal.
BARNICLE: Well, isn‘t it rather odd or different that—Scooter Libby isn‘t a flight risk—that he wouldn‘t be allowed to remain free pending the appeal?
SAUBER: As a criminal defense lawyer, my general view is that clients, anyone who is convicted in district court who‘s not a flight risk, not a danger to himself or others, ought to be able to stay out pending the resolution of his appeal, at least to the court of appeals.
And in this case, it gets a little circular to ask the district court judge, Did you give the guy a fair trial, and have that judge decide that for the purposes of whether or not the prison sentence should be stayed. So I don‘t know that that‘s the best way to do it.
I do think that there are some substantial issues that the court of appeals going to be interested in, in particular, the one that the law professors opined on to the judge.
BARNICLE: You represented Matt Cooper. During the course of this trial, during the course of your representation of Matt Cooper from “Time” magazine, were you surprised, given the scope of the investigation, that no one else other than Scooter was indicted?
SAUBER: Well, I was surprised that others weren‘t indicted. I understand how difficult it would have been to prosecute people for the release of an undercover agent‘s name. That‘s a problematic case. But my assumption is that other people did have extremely faulty and leaky memories when they went in the grand jury to testify.
BARNICLE: So you‘re a former federal prosecutor, as well. So if you can, put yourself in Patrick Fitzgerald‘s place, as you get in the, you know, “I don‘t remember” defense from Scooter Libby, does that push you forward in terms of getting Libby to try and flip him?
SAUBER: Look, the—yes. Every federal prosecutor has been in this situation, where you start an investigation, people lie to you, it turns out that the underlying conduct you started the investigation focusing on turns out either not to be a crime at all or not to be prosecutable, which was the case here, but you‘re so offended that the system has been corrupted by people who won‘t answer truthfully or won‘t testify accurately in the grand jury that you do focus rather heavily on anyone who comes in the way of your ability to do your job. And I think that‘s what Pat Fitzgerald did here.
BARNICLE: The moral is, Don‘t fool with the feds, huh?
SAUBER: I think the moral is—and you cannot say this enough times, and people always end up not following it—is that it‘s cover-ups and lies during the investigation that are far more dangerous than the underlying conduct.
BARNICLE: Dick Sauber, thanks very much.
Democratic senator John Kerry of Massachusetts joins us now. Senator Kerry, your reaction to the Libby appeal being turned down today? Do you think he should go to jail immediately, or do you think he should stay out pending the hearing of that appeal?
SEN. JOHN KERRY (D), MASSACHUSETTS: Well, I listened to your previous guest, Mike. I think, as a former prosecutor, there is a certain process for the appeals process. But look, the court has spoken. I listen to the court, so I‘m not particularly inclined to second-guess them one way or the other. I suspect the appeals court will rule fairly quickly.
BARNICLE: What do you figure is going on in the White House right now? I mean, Scooter Libby, clearly Dick Cheney‘s guy—is Cheney capable at this point in the White House, at this point in the Bush administration, of pushing this president to pardon Scooter Libby?
KERRY: I think a pardon would, number one, be an enormous mistake. And number two, I think it would be difficult for the president. And I think the initial reactions from the White House for that question gave evidence that they also probably believe that.
BARNICLE: But the president is at 29 percent in the polls. I mean, how much lower can he go if he pardons this guy, 25, 22?
KERRY: Well, the vice president calls him the popular one.
BARNICLE: You know, Senator Kerry, you gave a speech I believe today on national security—switching topics here—and you raised a question that‘s been asked in polls, you know, Are we safer today than we were on September 10, September 11? And your response was that, you know, we are a bit safer, but the country—what was your response to that?
KERRY: Well, my response is it‘s the wrong question to be asking people. First of all, it lends itself to a lot of different answers, depending on how you read the question. Obviously, as an individual, I‘m certainly safer, you‘re safer walking into an airport and getting on to a plane. Or you can find some things that the FBI has done or the intelligence community or somebody‘s done which improves some measure of safety somewhere.
But in the larger issue of whether or not we are safe as we ought to be, which is the real question, I think the answer is profoundly no. And when you look at international challenges, the answer to that initial question is also profoundly no. North Korea has more nuclear weapons. Iran is moving closer to nuclear weapons. Hezbollah is more powerful. Hamas is flexing its muscles and is stronger. The Middle East is in greater disarray. The United States‘ interests have been set back. We‘re more isolated than before. And Iraq is obviously a terrible mess.
So it is clear. I mean, our own CIA, Mike, tells us—the CIA has said that our policy in Iraq is creating more terrorists, more al Qaeda than we are killing in Iraq. The minute you know that, coming from our own CIA, you know you got to change your policy.
BARNICLE: But you know, Senator, you‘re standing over there in the United States Senate right now. Last fall, millions of Americans went to the polls and voted not necessarily for the Democratic Party, but probably against the incumbents, against the war in Iraq. They gave you the keys to the car, you, the Democrats. And what have you done? What‘s going on?
KERRY: Well, I think we‘ve done a lot, to be honest with you. I think we‘ve changed the debate in the country and we‘ve changed the debate here in the Senate. The fact is that last year, Mike, I brought an amendment to the floor of the Senate to set a timetable for the conclusion of our current deployment and to shift the deployment to start bringing troops home. I won 14 votes on the floor of the Senate last summer. We brought it again this fall. We first won 48 votes, and then we won over 50 votes. That‘s dramatic.
And the result of that is that we have this review coming up in September. We just weren‘t able to win enough votes from the Republicans. So the people who voted for a change in November have to recognize they got some change, they got the change that we can produce within the limits of less than 60 votes, but now they need to help us get more votes in the Senate, so we can complete this task.
BARNICLE: When you say this September, the review, you‘re talking about General Petraeus‘s report?
KERRY: Correct. There‘s sort of an ad hoc review date that‘s been set by General Petraeus and the White House and the Congress that everybody‘s going to look at where we are on the so-called surge come September. I think we already know that the surge isn‘t working, and I think you‘re going to see a lot of Republicans begin to hold this administration‘s feet to the fire come September. The tragedy is, Mike, that some young American soldier between now and then is either going to be killed or maimed. And I...
BARNICLE: What was the reaction, Senator, within the Senate, basically, earlier this week, last weekend, when General Pace, chairman of the Joint Chiefs of Staff, was fired in the middle of a war? What was the reaction?
KERRY: I think people felt—well, the reason he was fired was because senators behind the scenes had expressed their views to Secretary Gates that if they renominated him, he was going to have a very difficult time. And that‘s another thing that‘s happened here. There is accountability where there wasn‘t. You never would have seen Attorney General Gonzales in front of the Senate, and you obviously never would have seen a vote, even though they choose to ignore it.
I think their arrogant response to the accountability that has been sought by the Senate on a number of these issues is going to simply build the case more strongly than ever before about the need for broad change in the presidency and more people to come and vote alongside us, so we can put a real agenda in place for the nation.
BARNICLE: Senator John Kerry is staying with us.
And later: Will President Bush pardon Scooter Libby?
You‘re watching HARDBALL on MSNBC.
BARNICLE: Welcome back to HARDBALL. Senator John Kerry remains with us. Senator, I‘m doing my homework here. I‘m reading a speech that you gave today, “Building a National Consensus on Fighting Terrorism.” Is the war in Iraq part of the war on terror?
KERRY: It‘s part of it, mostly because we‘ve, unfortunately, made it part of it in the wrong way and now it‘s creating terrorists. But it‘s not the central part of the war on terror. The central part of the war on terror is in Afghanistan and northwest Pakistan and the effort to try to go after al Qaeda in some 60 countries.
BARNICLE: When you go out in the country, this country, when you go back home on weekends, when you visit with constituents or when you give speeches in other states, and someone comes up to you and says, Senator, what is the mission in Iraq, what‘s your response?
KERRY: Well, the mission that‘s defined by the administration is supposedly to prevent chaos and to allow this government to survive. I think we‘re in a circular mission, where we‘re there to prevent the very chaos that we‘re creating. And the longer we‘re there, we‘re making it harder to accomplish our goal, which is why I believe you have to have a fundamental change. I don‘t think this administration has really understood this mission, and I think they‘re on the wrong track with this escalation of numbers of troops there. It is not going to work because it requires, as they have said, a political solution, not a military solution.
BARNICLE: Senator Kerry, there‘s a book written by Colonel H.R. McMaster, I‘m sure you‘ve read it, “Dereliction of Duty: McNamara, the Joint Chiefs and the Lies That Led to Vietnam.” You‘ve read it, correct?
KERRY: I haven‘t read it, but I know of it.
BARNICLE: OK. So the question is, again, when people come and ask you out in the country or back in your home state, Why is it that very few people in the military or in politics have been held accountable for what‘s gone wrong in this war? Why has nobody been fired?
KERRY: Well, Donald Rumsfeld ultimately was after the American people spoke in the last election. But you‘re absolutely correct that up and down the chain, not enough people have been held accountable. They weren‘t held accountable for Abu Ghraib. They‘re not being held accountable for Guantanamo. And the reason is that this administration fundamentally snubs its nose at that kind of accountability. They just ignore it, Mike. And the problem is the media back off after a certain period of time. They don‘t stay with the story or they don‘t stay with a line of accountability. They move on to the next story, whether it‘s Paris Hilton going to jail or, you know, Anna Nicole Smith, you name it. So we‘re distracted, and we move on to something obviously of far less consequence.
My bottom line is this: that no American troop should be killed in Iraq or maimed in Iraq because of the procrastination, the delay of Iraqi politicians to compromise.
I think Iraq is worse than Vietnam. And the reason it‘s worse is that it came about as a war of choice, not the extension of a major ideological effort, like the Cold War. And I think that the deception and—and the inadequacies of leadership have been far greater in the long run.
BARNICLE: So, what—what do you do about President Maliki in Baghdad? I mean, basically, President Maliki and the Iraqi parliament, many Iraqi politicians, they‘re playing us.
BARNICLE: They‘re playing the United States of America, playing us very well.
What do you do about him?
KERRY: I think you give him an ultimatum, point blank, publicly.
And you make it clear that either he fires the people in their ministries who are unwilling to be part of the reconciliation, and he puts people in who are, and he demonstrates the leadership within a specific limit of time. And, if he doesn‘t do that, then you make it clear the United States is not going to continue to support that government.
BARNICLE: Senator John Kerry, thanks very much.
KERRY: Thank you.
BARNICLE: Up next: The judge says, Scooter Libby should report to jail. Should he be able to stay out while he appeals?
You‘re watching HARDBALL on MSNBC.
BARNICLE: Welcome back to HARDBALL. I‘m Mike Barnicle, in for Chris Matthews.
A federal judge today said he will not delay a two-and-a-half-year prison sentence for Scooter Libby in the CIA leak case while Libby appeals, which could put him in prison within weeks. Is it the right call?
Ron Christie is a former Bush-Cheney White House aide who was actually first hired by Scooter Libby. And he wrote a letter to the judge on Libby‘s behalf. Pat Buchanan is an MSNBC political analyst and the—one of the oldest living Americans still commenting on politics.
BARNICLE: And we‘re pleased to you have here.
RON CHRISTIE, FORMER ADVISER TO VICE PRESIDENT DICK CHENEY: Great intro.
PAT BUCHANAN, NBC POLITICAL ANALYST: You are my contemporary, I think, aren‘t you, Mike?
BARNICLE: What do you think about Scooter Libby? He‘s not a flight risk. He‘s not going to go to Brazil. And the judge is showing him—is cutting him no slack at all. How does that grab you?
BUCHANAN: Well, it is a very—this is a very tough judge. They knew it all along.
And—and I think the judge simply wants to make sure that Scooter Libby does time. He gave him 30 months. And $250,000 is a very heavy hit. And this fellow, I think, feels that Scooter Libby deserves it, and he wants to be tough.
BARNICLE: Ron, Scooter Libby, obviously, reporting to jail, but, if his name wasn‘t Scooter Libby, if he didn‘t work in the White House, if it was just obstruction of justice from, you know, Charles Libby, whatever, do you think he would be reporting as quickly as the judge wants him to?
CHRISTIE: Of course he wouldn‘t. And I think this is yet another travesty in a—a continuing travesty of justice.
The own probation office—the federal probation office recommended that Libby get 15 to 21 months for a sentence. It could have been less than that. It could have been probation.
Yet another travesty of justice, what we have here is a prosecutor who puts in evidence information that was not put in at trial. He goes after Libby, and says, for the fact that there was a CIA operative whose name was identified, therefore, Scooter should get the full sentence of 30 months, and the judge bought it.
For goodness‘ sakes, if you‘re going to start introducing facts and things that did not take place at the trial level, then you are going to use that against Scooter for sentencing him, I think that is absolutely absurd.
BUCHANAN: I think they were making—I think the judge and the prosecutor—I think Fitzgerald felt that, because Scooter threw sand in his eyes, and impeded his investigation, and denied him the right, maybe, to get at the vice president and find out if it was some kind of conspiracy, he really ought to be hit hard.
And the fact he committed perjury, as a lawyer and as a ranking official in the White House, meant that he ought to be made an example of. And I think the judge agreed with him.
I do agree with Ron. It was tough. It was beyond the guidelines. And I was jolted when it—at the 30 months. But I think that‘s why they did it.
BARNICLE: Well, what is the travesty of justice involved? Is it the length of the sentence, or is it the fact that he was indicted at all, in your mind?
CHRISTIE: Well, I think it‘s the fact that he was indicted in the first place.
You have a case where you have an individual, the special counsel, who is looking to see whether or not a CIA operative‘s name has been improperly disclosed. Both the Justice Department and Pat Fitzgerald knew that, in fact, the deputy secretary of state, Richard Armitage, had revealed that information.
So, you are taking an individual to trial, you‘re taking a case to trial, when you know, in fact, the underlying statute had not been violated. Any first-year law student would know that.
CHRISTIE: Wait. Pat, one more thing here.
CHRISTIE: Then you go through this case. You have a process crime, where, in fact, did he obstruct justice? Did he lie? There were individuals who testified. Ari Fleischer testified that he did not, in fact, go to Walter Pincus and reveal the name of Valerie Plame.
CHRISTIE: And Pincus said he did. Again, it‘s a he said/he said.
There should never have been an indictment. This is a travesty.
BUCHANAN: Well, look...
BUCHANAN: Look, you know, I tend to agree that Fitzgerald, I think, could have wrapped this thing up when he found out who do it, and there‘s no underlying crime.
But the truth is, Scooter Libby committed perjury, naked perjury, and obstruction of justice.
I had friends go to jail, Ron, in Watergate for saying twice, “I can‘t recall.” For eight months, they went to jail on much less than this.
And, look, the—the criminal justice system is contingent upon people telling the truth. And, when you have got somebody as high up as Scooter Libby is, and a lawyer, working in the White House, who, in that detailed conversation with Tim Russert, nakedly committed perjury, you have got to punish the guy.
And I believe—I believe he ought to have been sentenced to time. It might have been too tough, but I—I think it was a—it was a crime, and you had to sentence him.
CHRISTIE: And I agree with you.
But, again, this case never should have been brought. And we never should even be having a discussion about sentencing. But we will—we will have to leave it on that thought.
BARNICLE: Well, we are going to continue on the other side of the break.
Pat Buchanan and Ron Christie are sticking with us to debate whether President Bush should pardon Scooter Libby.
Later: Poll shows Hillary Clinton is beating Barack Obama big time among women. Can Michelle Obama do anything about that?
You‘re watching HARDBALL on MSNBC.
MARGARET BRENNAN, CNBC CORRESPONDENT: I am Margaret Brennan with your CNBC “Market Wrap.”
Stocks rallied for a second straight day, with the Dow Jones industrial average closing up some 71 points, the S&P 500 broad market there gaining by more than seven. Tech-heavy Nasdaq gained about 17.
Stocks got a boost from a government report showing that inflation is fairly tame at the wholesale level. Back in May, so-called core inflation, which excludes food and energy, rose only two-tenths-of-a-percent.
Also today, new jobless claims were unchanged from last week, a sign that the job market is holding steady.
Meantime, investors shrugged off mediocre earnings news from two powerful investment banks, Goldman Sachs and Bear Stearns blamed second-quarter declines on subprime-mortgage woes.
Oil prices took a big jump on the day, rising $1.39 in New York‘s trading session, closing at $67.65 a barrel.
And 30-year mortgages rose for a fifth straight week, climbing to a nationwide average of 6.74 percent. That‘s the highest level in 11 months.
That‘s it from CNBC, America‘s business channel—now back to
BARNICLE: Welcome back to HARDBALL, and former Bush-Cheney White House aide Ron Christie and MSNBC political analyst Pat Buchanan.
Tonight‘s HARDBALL debate: Should President Bush pardon Scooter Libby?
CHRISTIE: Yes, I think he should. I think this is a case that never should have been brought before the Justice Department.
As I was saying in the previous block, the Justice Department knew that Libby did not violate the underlying statute of improperly releasing the name of Valerie Plame. I think the CIA was improper when they, in fact, leaked that this investigation was going on, that they had asked the Justice Department to take a look at it.
I think, when you look at all the facts in this case, it is a he said/she said case. There are honest people who can say that perhaps Scooter had a faulty recollection, particularly after 9/11.
And the prosecutor never should have gone in there, recognizing that the underlying statute had not been violated, and put Scooter under until he got him to say a couple of things that contradicted, and then threw the book at him.
I think it‘s a travesty, and the president can right this wrong.
BARNICLE: Patrick J. Buchanan?
BUCHANAN: No, he shouldn‘t pardon him.
Now, whatever you say, Scooter Libby committed naked perjury and obstruction of justice, and lied to the grand jury, and lied to federal officials. And, when you do that, you ought to pay the price.
For the president of the United States to intervene now and pardon him would simply say, I‘m taking care of this guy, because he‘s one of my guys.
And I don‘t think you do that. I don‘t think he ought to be pardoned now. I think that, at—at the end of Bush‘s term, I think the vice president will walk in and say, Mr. President, I have served you. I have never asked for anything in my life. But I‘m asking you right now—I would say around Christmas of 2008 -- I‘m asking you right now if you will give Scooter a pardon.
But Scooter could be in the—a penitentiary for 18 months by then.
BARNICLE: So, let‘s talk about the politics of this.
BARNICLE: You used the phrase, you know, George Bush saying, he‘s one of my guys.
BARNICLE: I mean, President Bush has stood up for Alberto Gonzales.
BARNICLE: Wouldn‘t stand up for General Peter Pace.
BARNICLE: But, on Scooter Libby, I mean, what‘s the cost to the president, in terms of popularity, you know, if he pardons him?
BUCHANAN: Well, look...
BARNICLE: He‘s 29 percent in the polls. What...
BUCHANAN: Now, there‘s—now, I don‘t think it would be too much.
And I think that people would—would look down on Bush for doing this. I mean, there is no justification for it, Mike. Look, I mean, I agree with a lot of what has been said about this prosecution and how it was handled.
But the truth is, the bottom line is, like a lot of guys in Watergate I worked with, they went in there and they lied. They didn‘t tell the truth to the grand jury. Other guys went in there and told the truth.
And I think, when you go in there and lie to a grand jury, especially as a lawyer, you have got to pay a price. And I think he has got to pay this price.
CHRISTIE: And, again, and this—this is where I have a disagreement with you, Pat.
I think, again, Scooter had an honest recollection problem, where he thought he was telling the truth, where he thought that he had an honest recollection. But, again, the jury didn‘t buy that.
BUCHANAN: A unanimous...
CHRISTIE: The jury said that they should sentence him.
BUCHANAN: A unanimous jury—a unanimous jury said...
BUCHANAN: It wasn‘t even a hung jury. A unanimous jury said, guilty as charged.
CHRISTIE: But let me put it to you this way.
I think there‘s a tale of two Washingtons. If you look at what happened with Sandy Berger, Sandy Berger went into the National Archives, took classified documents out of there. He was given probation.
And then you look at somebody like Scooter Libby, where there are facts in dispute...
BUCHANAN: Well, look...
CHRISTIE: ... there are facts in evidence, and...
BUCHANAN: ... you‘re telling me...
CHRISTIE: ... Scooter has to go to jail for—for 30 months?
BUCHANAN: You‘re telling me Paris Hilton goes to jail for 45 days, and Scooter walks?
CHRISTIE: I‘m not talking about Paris Hilton. I‘m talking about...
BUCHANAN: She‘s in jail for 45 days.
CHRISTIE: Pat, I‘m talking about somebody who...
BUCHANAN: I agree with you. Berger...
CHRISTIE: ... been a very strong public servant to this country.
BUCHANAN: No one denies that.
What I‘m saying to you is, again, there is a dispute as to whether or not he went in there, intentionally lied. You said...
CHRISTIE: ... there‘s no question that he perjured himself and he lied. I think there is a dispute...
BUCHANAN: OK. But who decides that? The jury decides that. That—
12 members found him guilty. And that‘s it.
BUCHANAN: You know, under the law, that is it.
CHRISTIE: And—no, it‘s not it, Pat. He still has appeals. I‘m a lawyer. As a lawyer, I would sit here and say, the prosecutor put in facts...
BUCHANAN: Well, they‘re not going to...
CHRISTIE: ... that were not...
BUCHANAN: They‘re not going to overturn—the appeal is not going to overturn the verdict of the jury. Maybe you will get somebody in there...
BUCHANAN: ... get some technicality.
CHRISTIE: The technicality, I believe, would be a mistrial for having a prosecutor put in facts that were not brought in, in evidence during the trial. The trial court judge is a trier of fact. I think that Scooter has a very valid appeal. He has very valid issues on appeal.
BUCHANAN: All right.
If the appeal throws it out, then maybe they try him again.
CHRISTIE: Right. And I think, if they try him again, I think a reasonable jury will look at all the evidence, look at what was before them, and I think he is not guilty. And I think he will be found not guilty.
BUCHANAN: But I don‘t think he ought to be pardoned.
BUCHANAN: I agree he has got a right to appeal. He should not be pardoned.
BARNICLE: Well, you...
CHRISTIE: I think he should be pardoned.
BARNICLE: You have both hung your hat on the perjury charge.
But what about the larger issue to many people, in many people‘s minds, the obstruction-of-justice charge?
CHRISTIE: The obstruction-of-justice charge, this is an interesting one here.
If you look at the sentencing, the—the special prosecutor said, he obstructed justice, which we believe led the government not to prove its case for the fact that Scooter improperly disclosed the name of a CIA operative—which we know isn‘t true, because Fitzgerald knew that it wasn‘t Scooter who leaked this information.
So, how can you have an obstruction of justice...
CHRISTIE: ... when you know for a fact that it wasn‘t Scooter...
BUCHANAN: Well, he was looking...
CHRISTIE: ... who improperly disclosed her name?
BUCHANAN: He was looking—he was looking at the possibility of a conspiracy here. And Scooter blocked the investigation by not telling the truth and sending him down these false roads.
CHRISTIE: They brought Rove in there. They brought scores of folks from the White House in there. They never proved a conspiracy. It was something for him, after a year-and-a-half, to finally say, I have got something that I can hang this guy on, so I‘m going to bring in him for perjury and obstruction.
BARNICLE: Well, I mean, but you can understand that, from a prosecutor‘s mind.
BARNICLE: He has got—he has got Dick Armitage on record as—as saying, OK, you know, I leaked Valerie Plame‘s name by accident. I‘m sorry. I did it.
BARNICLE: And then people are saying, you know, well, then he should drop whatever he wants to do against Scooter Libby, because he has got Armitage on record.
But it‘s as if—it is like saying, you have got three murders in the town. We solved one of them. We‘re going to just let the other two go.
CHRISTIE: But, Mike, here‘s—here‘s the difference.
The difference is that Fitzgerald knew that Valerie Plame was not a covered official, by statute, because...
BUCHANAN: But, Ron...
CHRISTIE: ... if he had known that, Pat, he would have returned an indictment against Armitage.
BUCHANAN: Let me tell you why I think he lied.
I think the guy lied because the president of the United States went out and said, if anybody‘s got any role in this whole thing, he is going to be fired.
I think he had a motivation for lying. Why didn‘t he tell the truth?
CHRISTIE: Again, I think..
BARNICLE: Well, before you—answer that in the next block, OK?
BARNICLE: Can you do that?
Pat Buchanan, Ron Christie, they‘re sticking around. We will be right back.
This is HARDBALL, only on MSNBC.
BARNICLE: We‘re back with Ron Christie and Pat Buchanan for the HARDBALL debate and steam is coming up off the table here. You‘re outraged.
CHRISTIE: I‘m outraged. Brother Buchanan over here is saying that
Scooter committed perjury. He doesn‘t know that. The fact of the matter -
I feel like I‘m a broken record. The fact of the matter is this is a case about an honest mistake of fact that never should have been brought, because the special prosecutor knew that there had been no law that had been violated. This is a travesty of justice. He deserves a pardon.
BUCHANAN: You sound like his lawyer. He was convicted of perjury and obstruction of justice on four counts. And I don‘t see how the president of the United States can step in and say, well, he had a trial and everything. I don‘t like it, and therefore, because he‘s my guy, I‘m going to let him go. Look, Ron, I don‘t think the president would be hurt too much, because I don‘t think the country cares much about Scooter.
But the presidency of the United States, you can‘t step in and intervene like that.
CHRISTIE: Of course you can! This is the president, the chief executive of the executive branch. The Justice Department, I think, made errors. The Justice Department should have looked at this case for what it was and recognized that it should not have gone to trial. Why did this go to trial? Because there was a lot clamor on Capital Hill by a lot of partisan Democrats, who said we need to have the appointment of a special counsel. The special counsel—
BUCHANAN: Bush‘s own Justice Department prosecuted and convicted this guy, and the president is going to overrule them? Keep him out of prison because he was Cheney‘s guy?
CHRISTIE: No, what I‘m saying to you is that there were flaws in this case. The Justice Department should have looked at this for what it was and recognized --
BUCHANAN: Shouldn‘t that go, Ron, to the appellate court and make the case there that you failed to make in the original court?
CHRISTIE: I absolutely agree with you on that, Pat, which is why I think that Scooter should take this to the appeals court. The appeals court should look at --
BUCHANAN: So you object to the judge sending him to jail now?
CHRISTIE: No—yes, I do object to the judge sending him to jail now. He‘s not a flight risk. He‘s not going anywhere. He should be out pending appeal. He‘s not a violent guy. He is not going to go running off to Mexico and into the sunset. Scooter has said from the get go that—
BUCHANAN: I think the judge is putting him in there because he doesn‘t think that he will ever go there if he holds it up for the appeal, because I think he expects Libby to be pardoned by Nixon—pardoned by Bush—never able to do any of those words—by the end of his term.
BARNICLE: Is the potential for a pardon here, is it a test of whether Cheney has any clout left within this White House?
BUCHANAN: It will be at the end of the administration, yes. I mean, if Libby doesn‘t get out, I will be astonished if after Christmas of 2008, he doesn‘t get a pardon then, because I think the vice president is a very loyal guy, and this guy was loyal to him. And the guy will have gone through all this agony and suffering. And if he goes in, everybody would accept it, just like Bush One, when he let Weinberger go and Elliott Abrams and the rest of them.
BARNICLE: Why wouldn‘t they accept it now? I mean the president of the United States; what does he have to lose. He‘s at 29 percent of the polls. The guy with TB is Denver is more popular than the president.
CHRISTIE: Well, the president is trying to move an immigration bill through the Congress. The president still has many things that he is trying to accomplish on a domestic and a foreign policy nature. And I think the pardon puts him at very serious risk.
BUCHANAN: Look, the question comes down to do you believe in the rule of law, frankly.
CHRISTIE: So now it is rule of law.
BUCHANAN: He was tried and convicted legitimately by the Justice Department of George Bush.
CHRISTIE: Yes, but, Pat, the fact remains that Article Two, Section Two of the Constitution gives the president of the United States the power and ability to commute sentences.
BUCHANAN: You haven‘t given me a single reason why it‘s in the national interest that Scooter Libby be pardoned by the president of the United States. You are going back and raising issues that were raised at trial and 12 jurors said no.
CHRISTIE: Pat, I never said this was a national interest. I‘m saying, in the interest of justice and doing the right thing, the president should pardon Scooter Libby, because I think he was improperly railroaded by a special counsel who knew that there was no underlying crime through the statue. This was a travesty. I said it at the start, I will say it now; he should pardon Scooter.
BUCHANAN: Your own Justice Department appointed him. It‘s one of your own top prosecutors. He was a tough customer. Everybody cheers his other convictions out there in Illinois. And to say this one was wrong, there‘s a reason for it; the only reason for it is, look, this guy is right in the inner circle of the war policy, and therefore we should protect our guy. That‘s not enough to sell to the American people.
BARNICLE: You know, the politics of the pardon or potential pardon, what happens—everybody talks about the base, the Republican base, those still with President Bush. What happens to the base if he doesn‘t pardon him right away and Scooter Libby goes to jail?
BUCHANAN: Neo-con—Look, with due respect, Scooter Libby doesn‘t have a big base. The neo conservatives are on fire on this issue, “Wall Street Journal,” “Weekly Standard,” all those guys, because Scooter is one of their guys. But, excuse me, it is like me being a neo-conservative means never having to say your sorry. Look, he got caught in this thing, just like Wolfowitz got caught over there at the World Bank. These guys have got to play by the same rules as all the rest of us, Ron.
CHRISTIE: Pat, I absolutely agree with you. I agree with your assessment that the base is ticked off about this. But if you want to talk about justice, again, it‘s a tail of two cities. You want to talk about Scooter Libby versus Sandy Berger.
BUCHANAN: Sydney Carton (ph)?
CHRISTIE: Oh, give me—we don‘t have the time—
CHRISTIE: Sandy Berger. But we don‘t have to the time, unfortunately. You and I can come back and debate that. But again, this is a travesty of justice, Pat.
BARNICLE: This could be a separate series. We can come back tomorrow night and continue this.
CHRISTIE: Christie and Buchanan.
BARNICLE: Ron Christie, Pat Buchanan, thanks very much. Up next, does Barack Obama have a secret weapon in the battle for women‘s votes? We‘ll be back with the HARDBALL panel. You‘re watching HARDBALL, only on MSNBC.
BARNICLE: Welcome back to HARDBALL. Time now to rip through the headlines that everyone is talking about today. And here to do it cNBC‘s chief Washington correspondent John Harwood, the “Washington Post‘s” Jonathan Capehart, and “Time Magazine‘s” Michael Grunwald.
Next up, Mrs. Obama works the women. The new NBC/”Wall Street Journal” poll this week showed Hillary Clinton‘s 14 point lead over Obama as a direct result of her strong support from women. But now Michelle Obama is looking to chip away at that lead. On Wednesday, campaigning in Las Vegas, she said this to a rally of women supporters.
(BEGIN VIDEO CLIP)
MICHELLE OBAMA, WIFE OF BARACK OBAMA: We as women are scrambling, trying to plan and take care of our children, and take care of our own health, manage our household, and for those of us who are working outside the home as well, we‘ve got the added responsibility of juggling all that with our job, the toilet overflow. Who‘s the one that‘s got to rearrange their schedule to be there for the plumber? It‘s us.
(END VIDEO CLIP)
BARNICLE: Well, will her down home, regular women pitch contrast with Hillary‘s hard charging style and will voters reward it? John Harwood, the body language, the physical presence of Mrs. Obama is quite different from Mrs. Clinton. Is she going to connect better with women?
JOHN HARWOOD, CNBC CHIEF WASHINGTON CORRESPONDENT: Well, Michelle Obama is a very impressive person. I have to take exception though, as the person in the house who has to go home and deal with the plumber when that becomes necessary. But look, Barack Obama needs help with women voters. So does John Edwards. They both have very impressive spouses.
Elizabeth Edwards is a great asset on the campaign trial. So is Michelle Obama. But Hillary Clinton right now has got an 18-point lead among women. These other Democratic candidates have to do something about that.
BARNICLE: Michael Grunwald, what do you figure is going on when women think of Hillary Clinton and when they think of Michelle Obama? Hillary Clinton‘s is rather, you know, stiff in her movements and still in her language, very programmed, very robotic. How come they‘re relating more to her, it seems, than Mrs. Obama?
MIKE GRUNWALD, “TIME MAGAZINE”: Well Hillary‘s always had a really incredible following among a lot of women. I covered her first Senate race in 2000, and there would be people screaming out at those rallies. I think Michelle Obama seems really impressive. And she‘s got a really nice—a nice story about the kind of juggling between work and family. But if you‘re going to pick a spouse, I think Hillary‘s spouse is probably the most popular Democrat in the country. So she‘s probably not too upset about that trade off.
BARNICLE: Jonathan, I mean, people go to the polls. They really don‘t vote for a spouse.
JONATHAN CAPEHART, “THE WASHINGTON POST”: And that‘s the key. The difference here is that Michelle Obama is not the candidate. Hillary Clinton is running for president of the United States, not Michelle Obama. So let‘s not forget about that.
BARNICLE: Bill Clinton is a pretty strong spouse.
CAPEHART: He‘s a pretty strong spouse. But when it comes to connecting with women voters, Michelle Obama has everything. She‘s smart. She‘s beautiful. She‘s got her own career. She can stand on her on two feet outside of her marriage to Senator Obama, in the same way that Hillary Clinton—Senator Clinton can stand on her own two feet, outside of the shadow of her very famous presidential husband.
BARNICLE: Let‘s flip to the next topic—Go ahead, John.
HARWOOD: I was just going to say, look at what Democratic voters want. They want somebody who can bring change, who is knowledgeable and experience. They see that in Hillary Clinton. Barak Obama, even with Michelle Obama as an asset, less tested. They‘re not sure about him yet.
BARNICLE: Well, experience and tests, Rudy Giuliani, the warrior. Is Rudy Giuliani compensating for his unpopular social views by out-hawking the hawks. In a Bloomberg interview this week, Rudy said he‘d consider sending more troops to Iraq if General Petraeus wanted them. But will general elections voters, weary and angry about Iraq, reward Rudy‘s tough talk? Or is Hillary‘s more cautious message on the war more appealing?
The new NBC/”Wall Street Journal” poll now has Hillary beating Rudy in the general election match up. Michael Grunwald, how long can Rudy Giuliani continue using as his main stay of his campaign September 11th?
GRUNWALD: Well, it‘s his main argument for a Republican primary voters. You‘ve got to remember, he‘s pro abortion. He‘s pro-gun control. He‘s pro-gay rights. There are pictures of him in drag. And he lived with a gay couple for a while. And so he‘s decide that his appeal in a primary election is going to be that he‘s going to be the butt kicker. We‘re going to be on offense and nobody‘s going to be able to outflank him when it comes to military force.
He doesn‘t actually have a lot of foreign policy experience, but 9/11 is a very powerful image for him and he‘s going to use that.
BARNICLE: John Harwood, tough talk is one thing. But tough talk with regard to the war in Iraq, given the fact that many people have a stern view of our role in Iraq—is that going to work for Rudy long-term?
HARDWOOD: Well, long-term it could be a big problem. If he seen as a
tries to make himself more hawkish than others on Iraq, the overall dynamics of that are not very good. In our poll, by five to one, people think things are getting worse in Iraq, rather than better. He‘s also got to wonder about Fred Thompson walking onto the stage. Fred Thompson hasn‘t even gotten into the race yet. In our poll, we show that, among Republicans who consider themselves very conservative, he‘s thrashing Rudy Giuliani right now, or should I say kicking his butt in the ergot of this particular conversation.
BARNICLE: Jonathan, before you worked for “The Washington Post,” you were at the “New York Daily News.” You covered Rudy Giuliani. His record in New York, his reputation in New York not the best toward the end of that first term, just prior to September 11. What happens when that stuff starts spilling out?
CAPEHART: Well, when that stuff starts spilling out is when people will see the Rudy Giuliani that New Yorkers lived with for eight years. Rudy did some great things. He lowered crime, which is the single most important thing he did. Plus, there was a boom in New York while he was mayor.
But there were costs to his mayoralty. One of them—I think the most perilous—was that race relations in New York City were horrendous. And I think when you look at New York City now, under Mayor Bloomberg, one of the things that you can point to is that things are still going the way they‘re going, but race relations are the best they‘ve been in the city in decades.
And I think Rudy Giuliani his ace—his ace card is 9/11, is national security. But what I would like to see is a series of debates on issues that don‘t relate to national security. How about a health care debate or an environmental debate? And see how Rudy stands—again, stands on his own two feet on issues that have nothing to do with the war in Iraq or his experience on 9/11.
BARNICLE: We‘ve got less than a minute left. So let‘s quickly go right around the table here. Michael Grunwald, are we looking at a two tiered system here among the Republicans, perhaps, Rudy Giuliani and Thompson, and Romney and McCain in the second tier? What do you think?
GRUNWALD: You know, I think Fred Thompson makes a lot of sense for Republicans who are worried about John McCain as a kind of anti-Republican maverick, about Mitt Romney as a kind of flip flopper, who doesn‘t seem to share their values, and Rudy, who has been endorsing Mario Cuomo a while back. So it‘s understandable that they‘re turning to Fred Thompson as a kind of true conservative.
BARNICLE: We cheated John Harwood and Jonathan Capehart out of their opinions. But Michael Grunwald, thanks very much, from “Time Magazine.” Join us again tomorrow night at 5:00 and 7:00 Eastern for more HARDBALL. Our guest includes HARDBALL‘s own Bob Shrum, author or the new book “No Excuses.” Right now it‘s time for “TUCKER.”
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