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updated 1/29/2010 12:34:30 PM ET 2010-01-29T17:34:30

Guests: Julia Boorstin, Eugene Robinson, Savannah Guthrie, Pat Buchanan, Julie Menin  Jonathan Turley, Clarence Page, Melinda Henneberger

CHRIS MATTHEWS, HOST:  The second year of President Obama.

Let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews in Washington.  Leading off tonight:

Can you hear me now?  President Obama got on the line with the American people last night, connecting on a wide range of matters affecting the country.  It was in many ways a catch-up call.  He wanted us to know what he‘s working on, what he cares most about, what he has tried to do and hasn‘t yet been able to do.  He talked about resolve.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  We don‘t quit.  I don‘t quit.  Let‘s seize this moment to start anew, to carry the dream forward and to strengthen our union once more!

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

MATTHEWS:  Well, just for exercise, did he follow through on my three suggestions to get the country believing in him again?  I said he had to explain to the Americans how the great recession could have easily become a second-grade depression if he hadn‘t taken drastic action as he did, that he had to focus on jobs and share the country‘s number one concern, and he had to talk about some social issues that matter to liberals.  Tonight, we‘ll give a sharp look at last night‘s address to Congress.

And the president talked about capturing or killing hundreds of al Qaeda terrorists last night, but what does he say to the “Not in my back yard crowd,” which now includes New York mayor Michael Bloomberg, who says he agrees with those who don‘t want to try 9/11 mastermind Khalid Shaikh Mohammed in a downtown New York courthouse?  Will mounting pressure force President Obama to not try the top al Qaeda leader in federal court?

Also, it wasn‘t exactly a “You lie” moment, but after the president took the unusual step of ripping the Supreme Court‘s decision on campaign finance, Justice Samuel Alito shook his head and mouthed the words, “That‘s not true.”  A, who was right, and B, what‘s the protocol here?

Plus, the latest on that botched entering of Senator Mary Landrieu‘s offices by that conservative activist down in New Orleans.

And just how sordid can the John Edwards sex scandal get?  Both John and Elizabeth have been working to deal with that book by the former campaign aide who once accepted paternity of Edwards‘s child, and now the news that the political couple has separated.  More tonight on the unveiling—or rather, the unraveling of this one-time fast-rising political figure.  That‘s in the “Politics Fix.”

Let‘s start, however, tonight with the president‘s State of the Union address.  Savannah Guthrie is NBC News‘s White House correspondent.  Thank you for joining us from the White House.  You‘re obviously outside.  And Eugene Robinson is a Pulitzer Prize columnist for “The Washington Post” and an MSNBC political analyst.

First, I thought the president sought to describe, and he did last night, the abyss we almost went into last year, which is so hard to do, to tell the American people, There was this horror movie out here that I saved you from.  But here he is, doing the best he can.  Let‘s listen.

(BEGIN VIDEO CLIP)

OBAMA:  One year ago, I took office amid two wars, an economy rocked by a severe recession, a financial system on the verge of collapse and a government deeply in debt.  Experts from across the political spectrum warned that if we did not act, we might face a second Depression.  So we acted—immediately and aggressively.  And one year later, the worst of the storm has passed.

(END VIDEO CLIP)

MATTHEWS:  Eugene, the hardest thing in the world is to tell the people the terrible thing that was going to happen but didn‘t happen because I did drastic things that have driven the deficit up to $1.4 trillion.

EUGENE ROBINSON, “WASHINGTON POST,” MSNBC POLITICAL ANALYST:  Exactly.  That is a—I guess the metaphor du jour is a “heavy lift.”  That‘s a heavy lift.

MATTHEWS:  Yes.  Yes.

ROBINSON:  That‘s really hard to do.  I saw Senator Jon Cornyn this morning, Republican from Texas, and already he was jumping on this and saying, Well, he‘s been president for a year.  He, you know, boosted the deficit to $1 trillion...

(CROSSTALK)

ROBINSON:  How could he be saying that it‘s all Bush‘s fault?  You know, Can‘t he just—he‘s the president now.  And that‘s what you‘re going to hear from Republicans.  So it‘s difficult to make that case stick, but you‘re going to hear a lot more of it from Democrats...

MATTHEWS:  Yes, I was watching Cornyn...

ROBINSON:  ... not just the president.

MATTHEWS:  ... last night.  You watched him last night.  I was watching.  He was chuckling pretty hard...

ROBINSON:  Yes.

MATTHEWS:  ... because he knows that his people are all going to be on base because they‘re afraid of right-wing primary challenges, right?

ROBINSON:  Yes.  Exactly.  They‘re not going to...

MATTHEWS:  That‘s keeping them in order.

ROBINSON:  Yes.

MATTHEWS:  Let‘s go right now—I also thought Mitch McConnell was doing his George Will imitation last night, with that certain kind of chuckle.

(LAUGHTER)

MATTHEWS:  Savannah, last night, did the president feel he had to do this?  Did he feel it went over, this statement of horror that didn‘t come?

SAVANNAH GUTHRIE, NBC CORRESPONDENT:  Yes, that‘s a statement the president is willing to make at any opportunity, and makes often.  I mean, his aides really feel that we can‘t remind folks enough of where we were and what he inherited.

You know, we have asked questions—I‘ve asked it in press briefings

of Robert Gibbs, you know, Is there any point at which the statute of limitation expires, when you stop blaming the Bush administration?  But that is not how they see it.  They don‘t see it as, We‘re blaming it.  He says, I understand it‘s my responsibility now.  But we‘ve got to set the scene.  We‘ve got to say, this is what the situation was and this is how far we‘ve come.

They want to paint a compelling narrative, to tell a story, Look, we‘re not where we want to be yet.  We‘re not at the promised land, but we‘ve come far.  That‘s what the president tried to do at the beginning of this speech.

MATTHEWS:  Savannah, you know what I think the problem this the administration faces is—and this is about political conjecture as much as reporting—you know, the favor that Herbert Hoover gave to President Roosevelt was that he not only caused the Great Depression back in the ‘30s, he lived through four years of it.  So by the time FDR came into office, we all knew whose fault it was.  We‘d seen entirely it was a Republican fault, and all Roosevelt had to do was say, Happy days are here again.

This president has to say—well, Gene, you pick up here.

ROBINSON:  Yes...

MATTHEWS:  This president has to say, It could have been the Great Depression.

ROBINSON:  It could have been because, you know, the crash happened, and then the Republicans were out of there immediately.

MATTHEWS:  Yes.  Right.

ROBINSON:  And so...

MATTHEWS:  It‘s hard to prove.

ROBINSON:  ... the initial cleanup and the bad times...

MATTHEWS:  OK...

ROBINSON:  ... really happened under a Democratic president.

MATTHEWS:  Here‘s one for you.  Here‘s the president talking about what everybody thought he should have did, and I think he did.  Here‘s the president—I wanted them to hear—I wanted him—everybody to talk about jobs.  We have 10 percent unemployment rate in this country.  People are scared.  When people get scared, they get angry.  They get angry at him.  Here he is from last night, the president.

(BEGIN VIDEO CLIP)

OBAMA:  But I realize that for every success story, there are other stories of men and women who wake up with the anguish of not knowing where their next paycheck will come from, who send out resumes week after week and hear nothing in response.  That is why jobs must be our number one focus in 2010, and that‘s why I‘m calling for a new jobs bill tonight!

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

MATTHEWS:  Savannah, do they think at the White House that they‘ve got enough, to use the term Gene just did about lifting—do they have enough heft in this jobs bill?  They‘re talking about $30 billion released from the TARP money.  They‘re talking about a new rapid transit system to take us from Tampa to Orlando.  Is this enough?  Or is this boutique?

GUTHRIE:  Well, look, once you peel away some of the rhetoric and really look at if there‘s any “there” there, you recognize that short of spending another $500 billion, there‘s only so much they can do on jobs.  I mean, the high-speed rail that you mentioned, that the president was in Tampa talking about today, that‘s actually a Recovery Act funds.

MATTHEWS:  Yes.

GUTHRIE:  That‘s a stimulus thing that went—you know, was from a year ago, but they‘re now doing the grants.  And there is this jobs bill that passed through the House.  They‘re trying to get it through the Senate.  There are things there they can do.  I mean, they want to do the small business tax cuts.  They want to do the jobs—the hiring tax credit.  And they want to do that.

But in some ways, it‘s sort of chipping around the edges because there‘s just no way they‘re going to get the kind of stimulus through again to make a huge dent in unemployment.  And this is a problem for them.

Here‘s the thing.  They put a lot of tax cuts, a lot of Republican darlings forward, and it‘s almost a dare to Republicans to vote against it.  And everybody agrees, by the way, Chris, right now, jobs comes first.

MATTHEWS:  Yes.

GUTHRIE:  Health care—first of all, nobody knows how they‘re going to get it passed.  But second of all, even if they did, they‘re not going to do it now.  They want to do jobs first.

MATTHEWS:  You know, I want your thoughts.

ROBINSON:  Well...

MATTHEWS:  Is it big enough?

ROBINSON:  Exactly.  What is this really going to do?  I think the tax cuts, the tax credits for small businesses, that could have some impact.  But you know, there are a lot of economists who believe that, ideally, you would have another really sizable stimulus to really pump some money into the economy.  Now, there‘s stuff that the Fed can do in terms of keeping credit available, and this and that.  And we‘re talking huge amounts of money, and I think the Fed is prepared to keep the spigot open.  But the reality is, there‘s only so fast you can make the jobs number come up.

MATTHEWS:  Yes.

ROBINSON:  I mean, there‘s only so fast you can do that unless you just go out and start hiring people.

MATTHEWS:  Well, what abut—you know, we built the Empire State Building in the middle of the Great Depression, you know?

ROBINSON:  Yes.

MATTHEWS:  When you have cheap labor out there because the labor market‘s down, because people are unemployed, it seems like a good time to start hiring construction workers and build a fast transit system across the country.  Why don‘t we build Monahan (ph) Station in New York?

(LAUGHTER)

MATTHEWS:  What stops us from doing stuff?  I mean, just—I‘m serious.

ROBINSON:  Yes.

MATTHEWS:  I mean, maybe I‘m talking old-time liberalism, Tip O‘Neill stuff, Robert Moses stuff.  But what‘s wrong with putting people to work in construction jobs?  You can actually watch them on the street, building things like railroads, bringing back the big Bud plants, the big Boeing plants, building trains, building subways...

ROBINSON:  I think...

MATTHEWS:  ... building stuff that moves people...

ROBINSON:  I think there are a lot of...

MATTHEWS:  ... that creates infrastructure for the future.

ROBINSON:  I think there are a lot of liberal economists who would say exactly that, Let‘s find a way to...

MATTHEWS:  Yes.

ROBINSON:  ... get this money into the system, put people to work.

MATTHEWS:  Yes.

ROBINSON:  Maybe you build a national high-speed rail network.

MATTHEWS:  Yes.

ROBINSON:  Although that‘s—you know, that‘s...

MATTHEWS:  OK, let‘s talk about the social issues.  Excuse me.  Let‘s talk about the social issues.  Finally, the—I wanted the president to remind the left why they wanted him in the job in the first place, to give them something to take home.  Here is something on Civil Rights and gays in the military, open service by gay people.  Let‘s listen to what he said.  I think he slipped it in.  But here he is.

(BEGIN VIDEO CLIP)

OBAMA:  We must continually renew this promise.  My administration has a Civil Rights division that is once again prosecuting Civil Rights violations and employment discrimination.  We finally strengthened...

(APPLAUSE)

OBAMA:  We finally strengthened our laws to protect against crimes driven by hate.  This year...

OBAMA:  This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are!

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

MATTHEWS:  Was that enough?

ROBINSON:  Well, is it enough, really?  I mean, I think the left was generally pleased with the speech.  I‘m not hearing some sort of huge hue and cry that he‘s gone to the right, that he‘s forsaken health care...

MATTHEWS:  Yes.

ROBINSON:  ... that he‘s not doing all this stuff.  Specifically on “Don‘t ask, don‘t tell,” what I have kept hearing from the administration for some time now is that the president‘s very serious about moving with this, but they want to lay the groundwork, particularly with the military brass.  They didn‘t want a situation where they‘d roll something out and then the military brass would immediately go up to...

MATTHEWS:  Yes.

ROBINSON:  ... up to the Hill and shoot it down.

MATTHEWS:  But can he get it done?  Can we do it?

ROBINSON:  Well—but there‘s a timetable.  This year?  No.

MATTHEWS:  Yes.

ROBINSON:  I‘d say no.

MATTHEWS:  You know, I was watching—Savannah, I was watching Markos Moulitsos last night, a leader of the people on the liberal side of things, the progressive side.  He seemed very happy with the speech last night.  Is that a leading indicator that it did work with the base?  Your thoughts.

GUTHRIE:  Oh, well, yes, I think to the extent that Markos speaks for that wing of the Democratic Party, sure.  And look, I‘ll tell you, White House officials would dispute that they really have a problem with the base.  They think this is another one of these fictions of the media and that if you look at polls, the left is still very much with President Obama.

On “Don‘t ask, don‘t tell”—I mean, look, he‘s said this before.  This has always been his policy.  And I think the proof will be in the pudding.  Is this something they try to move forward with, with all deliberate speed, or are they going to slow walk it?  So I think in the coming days and weeks, we‘ll know how serious they are about it.  It‘s clearly a principle of his.  He wants to do it, it‘s just how quickly can he do it, and will it be fast enough for the left.

ROBINSON:  What I heard this morning from somebody in the White House was probably not this year, but maybe that we would be hearing from military brass at some point.

MATTHEWS:  OK.  Well, Thank you.  That‘s the beginning of the program tonight.  Thank you.

We‘re going to be right back with—and talk about the other issue tonight, of the big issue about that trial in New York.  Coming up, the topic the president didn‘t spend much time on last night, of course, that trial coming up in New York with KSM, Khalid Shaikh Mohammed.  The mayor of New York now has turned against the president.  He‘s with the wind up there.  He‘s with the people, I guess—Not in my back yard.  He‘s up there against trying the 9/11 mastermind in federal court at Foley Square up there.  This is going to be one red-hot issue.  This is going to put the O.J. trial, the Lindbergh trial off the score here.  This is going to be the big one—Foley Square, the trial of the mastermind of 9/11, just five blocks away.

You‘re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  President Obama‘s facing mounting political pressure up in New York to reverse course on his decision to try 9/11 mastermind KSM, he‘s called—Khalid Shaikh Mohammed—in federal court in downtown New York City.  Six senators have called on the attorney general to try the al Qaeda terrorist in a military commission.  And on Wednesday, New York city mayor Michael Bloomberg backtracked on his support, which he gave earlier, for trying him in downtown New York and suggested instead that the trial take place on a military base.

Let‘s watch.

(BEGIN VIDEO CLIP)

MAYOR MICHAEL BLOOMBERG ®, NEW YORK CITY:  The federal government could find a site that didn‘t cost $1 billion, which using downtown will.  And it will also impact traffic and commerce and people‘s lifestyles downtown.  And it would be great if we didn‘t do it.

(END VIDEO CLIP)

MATTHEWS:  Lifestyles downtown.  Pat Buchanan‘s an MSNBC political analyst—a little more hard-nosed fellow than worried about lifestyles—and Julie Menin is the chairwoman of Community Board 1 in Manhattan.  She‘s been pushing for the trial to be held on Governor‘s Island.

You don‘t like the location, Julie.  You don‘t like it being in Foley Square in downtown New York, right near 9/11.  Why not?

JULIE MENIN, NYC COMMUNITY BOARD #1:  Well, that‘s absolutely right, Chris.  It makes no sense whatsoever to have this trial in lower Manhattan.  We‘re the fourth largest commercial business district in the country.  It‘s the financial capital of the country.  It‘s the only neighborhood that‘s been attacked twice by terrorists.  Why on earth would we have this trial here?  And why would we spend a billion dollars to hold this trial here?

We‘ve got to remember that 9/11 caused $83 billion of economic damage to New York City.  So why would we go down that road again?  It makes no sense.  And we‘re demanding that the trial be moved.

MATTHEWS:  And you want it moved over to Governor‘s Island across the river, right?

MENIN:  Well, Governor‘s Island is one idea.  The mayor had some issues about that.  So earlier in the week, I proposed military installations, specifically military installations within the southern district of New York, like Stewart Air Base and West Point.  And I‘m asking Attorney General Holder to look at them.  The military bases would be a political compromise between those Republicans that want a military tribunal and those Democrats that want a federal court trial.

MATTHEWS:  Pat, your thoughts about a trial and all the cartoonish aspect of it that I think is coming.

PAT BUCHANAN, MSNBC POLITICAL ANALYST:  Right.  Well, I think that‘s coming.  Well, clearly, I think they‘re going to have to get it out of lower Manhattan.  When Bloomberg says that, I‘m sure Harold Ford and Gillibrand will be in on this, Peter King already is.

MATTHEWS:  And their point of view will be?  Not in my back yard.

BUCHANAN:  Get it out of New York City first and foremost.  But secondly, the president‘s got a serious problem, and so does Holder, because of the aspect of this trial, which is going to be turned into a circus by a good defense attorney.

MATTHEWS:  Right.

BUCHANAN:  I mean, the Miranda rights of this guy have been trampled upon as nobody else has had in the history of the world -- 183 times he was waterboarded!  They said, We‘re going to kill your family if you don‘t talk.  This guy—and then you bring in John McCain and you ask him, You said waterboarding is torture.  Was my client tortured?

MENIN:  But Pat...

MATTHEWS:  Yes!

(CROSSTALK)

BUCHANAN:  ... says, Yes, he was.

MATTHEWS:  Julie Menin, that‘s a larger issue.  Can you try this guy in court and win?

MENIN:  Absolutely.  We should have the venue as the federal courts.  We‘ve got to remember that in the Bush administration, we had hundreds of terrorists prosecuted in the federal court systems.  How many did we have in the military tribunals?  Two.  And both of those had to be actually switched over to the federal court system precisely because government lawyers and the Bush administration were concerned that the Supreme Court would rule parts of those trials unconstitutional.

I want to see KSM prosecuted, and the best venue to do so is in the federal court system.  And the idea that I‘m proposing, which the mayor backs, is military installations would hold a federal court trial there. 

A federal judge could preside over it.  And you give the imprimatur  of a military trial to it...

(CROSSTALK)

MATTHEWS:  But wouldn‘t you still have the problem you would have to impanel a New York City jury from the Manhattan district, right?  Wouldn‘t you have to find local people?

And could you find a jury of 12 people, plus alternates where you could be pretty sure they weren‘t up to something, that they weren‘t going in that jury with the purpose of maybe writing a book, of offering a weird, weird verdict, like innocent? 

MENIN:  I would tell you, Chris, I absolutely think so.  As a regulatory attorney, I really think that you‘re going to get an impartial jury, and you can get an impartial jury in New York -- 9/11 affected everyone in the United States. 

I don‘t buy the argument that you can‘t have New Yorkers as jurors in this trial. 

BUCHANAN:  Well, the trouble with some of these juries, first, Mrs.

Surratt was tried at Fort McNair hanged at Fort McNair.

MATTHEWS:  Who is Mrs. Surratt?  I‘m sorry.

(CROSSTALK)

BUCHANAN:  She was in on the Lincoln assassination, or said to be in on the Lincoln assassination. 

MATTHEWS:  OK. 

BUCHANAN:  They had a military tribunal down there, tried him and hung them right there at the fort. 

But, look, Chris, they don‘t realize, American trials, civil trials are part game.  You get these dream team attorneys on one side.  The reporters go in.  The prosecution had some good points today.  Defense...

MATTHEWS:  Yes. 

BUCHANAN:  They will be out after it‘s over standing there, the attorneys will, in front of those cameras. 

And if Khalid Sheikh Mohammed is smart, he will get someone to argue the case of the Islamic terrorist protest, what‘s been done to the Palestinians, what‘s been done to the Iraqis, what the Americans have done, put the United States on trial and get a lawyer in there to do it.  And that will be a disaster for Barack Obama and for this country. 

(CROSSTALK)

MENIN:  But, Pat, you already had that with KSM and the military tribunal.

You‘ve got to remember, at the end of the Bush administration, they put him in a military tribunal, and he spewed all of his rhetoric.  And media was there and they reported on it.  So, you still that kind of circus-like atmosphere, whether it‘s in a military tribunal or in a federal court of law. 

My question to you, Pat, is why is that Republicans are now up in arms over this?  Where were they in terms of the hundreds of terrorists who were prosecuted in the federal court system, like Richard Reid? 

(CROSSTALK)

MATTHEWS:  Julie, let‘s hear what senator-elect Scott Brown had to say in his victory speech to know what has changed in the atmosphere.  Here he is.  Let‘s listen.

(CROSSTALK)

BUCHANAN:  All right. 

(BEGIN VIDEO CLIP) 

SCOTT BROWN ®, MASSACHUSETTS SENATOR-ELECT:  I believe, and I know all of you believe, that our Constitution and laws exist to protect this nation.  They do not grant rights and privileges to enemies in wartime. 

(CHEERING AND APPLAUSE) 

BROWN:  In dealing with terrorists, our tax dollars, our tax dollars should pay for weapons to stop them and not lawyers to defend them. 

(CHEERING AND APPLAUSE) 

(END VIDEO CLIP)

(LAUGHTER)

(CROSSTALK)

MATTHEWS:  Joy, your response to senator-elect Scott Brown? 

MENIN:  First of all, I want to see KSM brought to justice.  And if we follow the senator‘s logic, I don‘t think he would be brought to justice under the military tribunal, because I think the Supreme Court is going to knock down certain parts of it.  We have got to remember that hearsay is admissible in a military tribunal.  Hearsay is not admissible in a federal court of law. 

Why would we take that risk and go down that road? 

MATTHEWS:  Let‘s take a look at what the president said last night. 

(CROSSTALK)

BUCHANAN:  Let me talk about the absurdity of this, Chris. 

MATTHEWS:  OK. 

BUCHANAN:  Look, Reid, the shoe bomber, he should have been taken off the plane, interrogated.  Who gave you this idea?  Who made these shoes for you?  Did they give you some other ideas how to bring bombs in?  Where did you learn this?  We want information to save lives. 

MATTHEWS:  I agree. 

BUCHANAN:  I don‘t care what happens to Richard Reid.  I don‘t care what happens to the underwear bomber. 

After 12 hours, they said you could get a lawyer and he shut up completely.  We want information to save lives and win and end a war. 

(CROSSTALK)

MATTHEWS:  Here‘s Dianne Feinstein, one of the most level-headed senators I think there is, Dianne Feinstein, who is a member of the Intelligence—I think she‘s chair of the Intelligence Committee.  Here‘s what she said about the trial today.  Let‘s listen to Senator Feinstein. 

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN (D), CALIFORNIA:  I think the dynamic has changed now.  And I think that the administration ought to listen to the mayor, listen to the mayor‘s concern, and, candidly, make a change.  There is nothing wrong with making a change. 

The administration has flexibility.  It can try somebody in an Article 3 court, decide to do it, change its mind, put that individual into a military commission.  So, the administration has total control of this.  And I think the situation has changed. 

(END VIDEO CLIP)

MATTHEWS:  Julie, I often look to Senator Feinstein for sort of the true north in American politics.  People think she‘s a liberal.  She‘s very centrist in her thinking and I think very mature in her outlook in terms of jurisprudence and all.  She‘s been through hell in her life as an executive in San Francisco, and very much involved in the system all these years out there, in the court system. 

She knows what she‘s talking about.  What do you think?  She says go back to the military approach.  What—you don‘t agree? 

MENIN:  I like my hybrid approach, which is have it in a military installation, but have a federal court judge preside over it.  And that‘s a compromise solution. 

I get very worried about these military tribunals.  I get very worried about whether they‘re going to be successful or not. 

And if our ultimate goal is to bring KSM to justice, shouldn‘t we do everything possible to reach that goal? 

MATTHEWS:  I‘m just afraid that a young person can go to law school now and finish by the time this trial is over, that this trial is going to go on and on.  We‘re going to be hearing arguments about water-boarding. 

And any young, smart, liberal attorney is going to say, how can you say this person is given a fair trial after how many water-boardings, 183?

MENIN:  One hundred and eighty-three.

(CROSSTALK)

MATTHEWS:  And that didn‘t give the prosecution the evidence.  And you got the tainted fruit here, or whatever it‘s called.  You‘ve got a real problem with this evidence. 

MENIN:  Exactly. 

MATTHEWS:  It came from torture. 

(CROSSTALK)

MATTHEWS:  So, how can you win the case?  That‘s what I keep asking. 

(CROSSTALK)

BUCHANAN:  Dianne Feinstein also has something else in mind.  She‘s a good solid Democrat.  She sees the terrible problems, A, with having it in downtown New York. 

Suppose some bomber like that anarchist bomber down at Wall Street blows people up.  That‘s the end of the Obama administration.  And, secondly, I think she sees the problem of these lawyers coming out and making the case for al Qaeda on American television.

MATTHEWS:  Yes, I‘m afraid Foley Square is going to be the new ground zero, because they will be looking at.  You know they will be looking at it.

(CROSSTALK)

MENIN:  Let me ask you this.  Pat, why don‘t you support this idea of having the trial on a military installation?  Why can‘t it be in West Point and have it as a federal court trial? 

(CROSSTALK)

BUCHANAN:  West Point is a place of honor in America.  The symbolism is appalling.  OK with your Air Force base or something like that.  Don‘t use West Point for this, but use a military tribunal on this guy.

He‘s a prisoner of war who engaged in a horrible atrocity against the United States.  He needs a Nuremberg tribunal. 

(CROSSTALK)

MATTHEWS:  OK, I‘m closer to Pat on this than you would believe. 

(CROSSTALK)

MATTHEWS:  Anyway, thank you. 

(CROSSTALK)

MENIN:  Thank you. 

MATTHEWS:  It‘s great to have you on, Julie.  Please come back and we will argue this at length forever, I think, but it‘s an important argument.

(CROSSTALK)

MATTHEWS:  Pat Buchanan.

It‘s not just about venue.  It‘s about what kind of a trial, military or civilian. 

Up next:  Surprise.  Rudy Giuliani picks a fight with President Obama about the speech last night.  I‘m not sure he was too attentive last night, the former mayor.  He says the president didn‘t even mention the Christmas Day terror attempt.  Well, he did.  And, once again, I think he‘s got his facts wrong, the mayor.  Are you watching, Rudy?  You got it wrong last night.

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Back to HARDBALL.  Now for the “Sideshow.” 

Did you ever hear how every witness in a trial has a different story, how no two people remember the same thing the same way?  Well, here‘s a wild example. 

Here‘s Rudy Giuliani‘s memory of what we all watched on TV last night. 

(BEGIN VIDEO CLIP)

RUDOLPH GIULIANI ®, FORMER NEW YORK CITY MAYOR:  The president last night, in his State of the Union speech, ignored national security, one or two mentions of it, didn‘t talk about KSM, didn‘t talk about the Christmas almost bomber, didn‘t mention the word war last night, didn‘t mention the word Islamic terrorism last night. 

This would be like Franklin Roosevelt giving a State of the Union speech during the Second World War and not mentioning Nazism and not mentioning the war.

(END VIDEO CLIP)

MATTHEWS:  Now, thanks to videotape, we can show you the reality. 

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  You know, throughout our history, no issue has united this country more than our security. 

Since the day I took office, we renewed our focus on the terrorists who threatened our nation.  We made substantial investments in our homeland security and disrupted plots that threatened to take American lives.  We are filling unacceptable gaps revealed by the failed Christmas attack, with better airline security and swifter action on our intelligence. 

And, in the last year, hundreds of al Qaeda‘s fighters and affiliates, including many senior leaders, have been captured or killed, far more than in 2008. 

(END VIDEO CLIP)

MATTHEWS:  Can you imagine the former mayor, the former U.S.  prosecutor, Rudy Giuliani, in the witness chair on last night‘s speech?  I‘m only guessing, but I think, during last night‘s speech, Rudy and Judy were doing a little channel surfing, or whatever.

Next, two of the tea party movement‘s biggest stars, Congresswoman Michele Bachmann and Marsha Blackburn, just pulled out of next week‘s big tea party convention down in Nashville.  Both cited the event‘s murky financial arrangements in their decision.

Sarah Palin, she‘s still in.  She‘s getting $115,000 as keynote speaker, almost as much as she got for a year as governor of Alaska.  I think she will show up. 

rMDNM_Now for the “Big Number” tonight. 

The president was in Tampa today to tout his team‘s high-speed rail projects.  It‘s an issue near and dear to my heart.  I take the train all the time between New York and D.C.  These trips, by the way, down there average 84 miles an hour between New York and Washington.  So, how fast will these soon-to-be-built trains between Tampa and Orlando—up to 168 miles per hour.  Pretty fast, huh?  A hundred and sixty-eight miles per hour trains coming to Florida, tonight‘s “I‘m going to Disney World” “Big Number.” 

Up next, we will get the latest on the attempt to tamper with the phones in Senator Mary Landrieu‘s office down in New Orleans.

Plus, Supreme Court Justice Samuel Alito mouthed the words “not true” when President Obama took a swipe at the Supreme Court‘s decision on campaign finance.  Who‘s right?  Who‘s got the right protocol in this fight?

You‘re watching HARDBALL, only on MSNBC.  

(COMMERCIAL BREAK)

JULIA BOORSTIN, CNBC CORRESPONDENT:  I‘m Julia Boorstin with your CNBC “Market Wrap.”

Stocks tumbling today on a strengthening dollar and some weak tech sector forecasts, the Dow Jones industrials falling more than 115 points, the S&P 500 sliding 13 points, the Nasdaq plunging more than 42 points. 

The dollar hitting a six-and-a-half-year high against the euro today, pushing stocks and commodities lower.  A couple of big tech earnings reports coming out just after the closing bell.  Online retailer Amazon beating expectations with a solid increase in both earnings and revenue.  Shares are up more than 2 percent at the close, moving higher after-hours. 

And Microsoft posting a surprise 60 percent jump in profits on a strong rebound in P.C. and Windows 7 software sales. 

Meanwhile, on Capitol Hill, the Senate has confirmed Ben Bernanke to a second term as chairman of the Federal Reserve.  The 70-30 vote brought an end to the bruising political battle over Bernanke‘s handling of the current economic crisis. 

That‘s it from CNBC, first in business worldwide—back to HARDBALL. 

MATTHEWS:  Welcome back to HARDBALL.  Now for the latest on two legal stories, the big one, four conservative activists charged with tampering with the phone system in Senator Mary Landrieu‘s office the other day.  What do they face?

Well, the Supreme Court Justice Alito also showed some disagreement with a line in President Obama‘s speech last night.  Was he out of line himself?

Joining me now is Jonathan Turley, professor at George Washington University, who knows a lot about a lot and always surprises me. 

So, I have no idea what you‘re going to say. 

What do you make of these characters—I think that‘s fair to call them that—they may be felons when the end of this is all over—going into a senator‘s office down in New Orleans, her local office, Mary Landrieu‘s, and doing something with the phone system, masquerading as telephone equipment-fixers, cutting the lines, doing things, entering space they shouldn‘t be in, facing now 10 years in prison for some hijinks? 

And their defense is, what, they wanted to catch the senator‘s staff acting nonchalant or whimsical once the lines were cut because they‘re tired of taking negative calls on the health bill? 

JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON

UNIVERSITY:  Well, that‘s the weird thing, is, these are people that seem to have room temperature I.Q.s. 

It‘s astonishing that they found each other and came up with this idea. 

MATTHEWS:  That is dangerous, when people of slight intellect get together. 

TURLEY:  Right.  Exactly.  And they still have their addresses pinned to their shirts when they do this. 

(LAUGHTER)

MATTHEWS:  You mean like a...

(LAUGHTER)

TURLEY:  So, you really have a problem. 

And, occasionally, as a defense attorney, you reach these people, and say you go, you‘re a disgrace to criminals around the world.  But they‘re looking at serious problems here.  Now, the big issue, however, is that the affidavit itself says that they are charging for this trespass charge with the intent to commit a felony. 

The question is what that felony is.  If you don‘t have that felony, it drops dramatically. 

MATTHEWS:  Yes. 

TURLEY:  So, the 10 years is really kicking in on a felony.  They don‘t say what the felony is. 

MATTHEWS:  But if they have any tools with them, does that tell you that they‘re going to do something illegal? 

TURLEY:  Well, it seems to me that when they talk about malicious interference, they‘re talking about only one of two things.  Either is—one is surveillance.  They didn‘t seem to have electronic surveillance devices on them.

The other is to stop the phone system, to destroy it, to interrupt it.  Either one would be very, very serious.  They would be looking at a serious charge.  They already are.  But it‘s also something a prosecutor is not likely to drop. 

It‘s more likely prosecutors are going to put pressure on these young kids, maybe the prosecutor‘s son that is one of them, to see if any of them will turn on O‘Keefe.  O‘Keefe is obviously...

MATTHEWS:  He‘s the ringleader, apparently.

TURLEY:  Yes, he‘s obviously going to be the target. 

MATTHEWS:  Well, let me ask you about this, just the—well, let‘s take a look at it.

Here‘s a statement that came out from the spokesperson in Senator Mary Landrieu‘s office just now.  Senator Landrieu believes “this feeble explanation that we‘re getting about what the purpose was, to embarrass the office, is a clear and calculated effort to divert attention away from the fact that his client stands accused of a federal crime that could land him in prison for up to ten years.  The fact remains that they perpetrated a false identity scheme on building security by posing as telephone workers in an attempt to manipulate the phones in her office.  The only people these four individuals have embarrassed is themselves and their families.” 

Well, embarrassment is the least of their worries right now.  If you went to a federal building right now, and you went to a senator‘s office, all these federal buildings in big cities around the country, and you snuck into the office and you snuck back in, using a uniform, a workman‘s uniform, and you went in and started cutting the wires, what would that crime be, if you knew nothing else about the case, about the motive, about the politics or who these people were?  What would that be? 

TURLEY:  The most obvious one is 1036, which they were charged under.  In terms of the felony, there‘s obstruction of federal property.  There‘s the possibility of surveillance.  There‘s also some other types of charges.  If they lied to federal officials, either before or after, there‘s an 18-USE-1001 charge, which also brings—

MATTHEWS:  Your best bet, are these guys going to get a big fine, or are they going to get a year, something like it? 

TURLEY:  I think they‘re going to look at serious jail terms, because the judge—assuming the prosecutors can prove these facts—they seem to be very confident.  If they prove these facts, I think a judge is going to be very reluctant to say, well, this was a not-so-charming prank.  This is a very serious problem.

MATTHEWS:  What about tertiary or secondary guilt?  Is it possible, if they sat down with some other parties, political people, that encouraged this act, this, whatever—escapade or—hijinx, could they be guilty? 

TURLEY:  Well, they call conspiracy the prosecutor‘s darling for a very good reason.  You can bring that against secondary parties. They can flip them.  And it‘s a serious problem.  These four—I‘m surprised they were able to find the building together.  So there may be some other people helping them. 

MATTHEWS:  Let‘s take a look at something that happened last night, a bit of hijinx, apparently, on the floor of the United States House of Representatives last night.  Here‘s what President Obama said about the recent Supreme Court decision in last night‘s State of the Union.  Let‘s listen, and watch, as we do, Justice Samuel Alito‘s reaction. 

(BEGIN VIDEO CLIP)

OBAMA:  Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our election. 

I don‘t think American elections should be bank rolled by America‘s most powerful interests, or worse by foreign entities. 

(END VIDEO CLIP)

MATTHEWS:  What do you make of that?  I couldn‘t quite see it.  Everybody‘s talking about him saying, you know—let‘s—we‘re going to show it again.  People say that he said something like, not true under his breath. 

TURLEY:  I‘ve seen it, the close-up.  It seems—

MATTHEWS:  There he is.  He‘s shaking his head saying not true, apparently. 

TURLEY:  No one‘s accusing him of a Jerry Springer moment.  But this shouldn‘t be belittled either.  What happened there, to use a word, would be exceptionally injudicious. 

MATTHEWS:  Is he supposed to be like a soldier keeping guard at the Tomb of the Unknown Soldier?  Are they supposed to be totally at attention, without any aspect? 

TURLEY:  The tomb soldiers can show more emotion than the justices.  They‘re there are a symbol of two things, ad he blew one of them.  One is the three branches coming together, which is important for democracy.  The other is the utter neutrality and the apolitical values of the court.  And for that reason, you‘re not allowed to applaud.  You‘re not allowed to oppose.  You‘re not allowed to mimic. 

MATTHEWS:  That‘s a tough standard.  Anyway, thank you Jonathan Turley, on all counts.

Up next, much more on what President Obama did or didn‘t accomplish in last night‘s State of the Union.  I thought it was a wonderful night for him.  We‘ll get the poll data coming in the next couple of days. 

Plus, a new low in the saga of John Edwards.  This is a sad story.  As a human story, it‘s sad.  A man who was very high up in his expectations, maybe still high in his expectations, but not in his situation.  They‘re legally separated or about to be, apparently—and somebody‘s got a tape of him with this other woman.  This is HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.  About a week ago, John Edwards admitted he‘s the father of his mistress‘ child.  Now a former Edward aide drops a new bomb.  Here‘s Andrew Young, not the famous Andrew Young, in an ABC News interview with Bob Woodruff.  Let‘s listen. 

(BEGIN VIDEO CLIP)

ANDREW YOUNG, FMR. AIDE TO JOHN EDWARDS:  There was one tape that was marked special.  And we‘re just aghast.  It‘s a sex tape of Rielle and John Edwards, made just a couple of months before the Iowa caucuses. 

It‘s amazing the tape exists.  That‘s unbelievable.  But to leave it in a house that‘s for sale, where realtors are going to be coming through it and leave it there for eight months, is unbelievable. 

BOB WOODRUFF, ABC NEWS ANCHOR:  Are you absolutely sure that this is John Edwards and Rielle Hunter? 

YOUNG:  It‘s definitely him.  You never see her face.  It‘s a visibly pregnant woman. 

(END VIDEO CLIP)

MATTHEWS:  Wow.  I‘m joined by Melinda Henneberger, I brought in for special duty.  She‘s from PoliticsDaily.com.  And Clarence Page of the “Chicago Tribune.”  You don‘t have to enjoy this.  It‘s chadenfraude (ph).  But it‘s so strange. 

Here‘s this good looking guy, smart guy, great courtroom lawyer, rose right up to the Senate from North Carolina, beat an incumbent, which is rare.  Headed towards the White House.  Ends up being VP, running for the vice president of the United States.  And now this. 

MELINDA HENNEBERGER, POLITICSDAILY.COM:  He‘s behaved despicably.  But this tape doesn‘t change anything.  For Andrew Young to come on here and say he is aghast.  This is a man who helped John Edwards cheat on his cancer-stricken wife, who helped John Edwards deny his own flesh and blood.  So he‘s aghast about something—

MATTHEWS:  So don‘t buy brooks, buy crooks? 

HENNEBERGER:  I don‘t care what this guy has to say.  I‘m not saying there‘s not a tape.  We don‘t know.  He‘s a -- 

MATTHEWS:  That‘s an interesting point.  Why are we talking about it, to be honest?  I think Melinda‘s raised a great point.  But—let‘s go back to the tape, which I‘m sure the people will be watching on some sort of thing on TV now.  You can watch everything.  Is the issue of this guy‘s fault at all instructive?  How high he went—was he a false flier?  Was he a morning glory?  Was he a mistake, a mirage? 

CLARENCE PAGE, “THE CHICAGO TRIBUNE”:  Makes you wonder about his narcissism.  You have to ask questions about his character and about why he would behave this way.  He‘s man of uncommonly good intelligence, and was potentially a great presidential candidate, viable, and all that.  But he just really crashed and burned here.  We can see there was all this going on behind-the-scenes even while he was aspiring to the presidency. 

MATTHEWS:  Melinda, when he was in the room in Iowa, like you were watching it—I‘m sure you were out there.  We were watching this guy.  I have never seen a better small room politician. 

HENNEBERGER:  Right.  I agree with that. 

MATTHEWS:  He was as good as Clinton, which is really saying something.  Two hundred people in the room, hot room, packed in, dynamite. 

PAGE:  It was kind of canned, too, though. 

MATTHEWS:  OK. 

PAGE:  Some speeches that just right down to the stopwatch. 

MATTHEWS:  It‘s easier to find a new audience than to find new material.  But the material was working for me. 

HENNEBERGER:  You know what I keep going back to, though, their son Wade‘s death in ‘96.  I keep thinking, is this a family slow-mo destruction? 

MATTHEWS:  It happens. 

HENNEBERGER:  You go back to this moment.  He would never have gone into politics, he said many times, if Wade had been alive.  Then he has these children.  They say that they had the kids as a response to Wade‘s death.  All these things that have happened since then, would any of this have ever occurred if they had—

MATTHEWS:  Horrible things happen when you lose a child.  Horrible things happen. 

HENNEBERGER:  Tragic. 

PAGE:  It is true. 

MATTHEWS:  Anyway, I think John Edwards ought to go back to practicing law, and he‘d probably be a great lawyer, or else join the Peace Corps. 

(CROSS TALK)

MATTHEWS:  I think he is crazed to go back into elective office.  But there‘s a lot more things to do in life than run for office. 

Before break, we learned yesterday that Howard Zinn died.  A lot of people loved reading this guy. He was a leading political activist of the 20th century, a crusader for civil rights in this country, and a prominent opponent of the war in Vietnam.  If you want to read some history from a left-wing point of view—and you ought to he hear things from all points of view—he was great.  He wrote in his autobiography that he wanted his students to be more prepared to relinquish the safety of silence, more prepared to speak up, to act against injustice, wherever they saw it, a great lessen.  Howard Zinn was 87. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA:  What frustrates the American people is a Washington where every day is election day.  We can‘t wage a perpetual campaign where the only goal is to see who can get the most embarrassing headlines about the other side. 

(END VIDEO CLIP)

MATTHEWS:  We are back with Melinda Henneberger and Clarence Page for more of the politics fix.  You guys know politics very well.  Melinda, you and I have been on the bus together.  Clarence and I have been on one million television shows together by now.  Let‘s just talk about the atmosphere last night.  I thought they were spectacular.  I thought he commanded the country as head of state.  He spoke for all of us.  I thought he was teasing the Republicans in a charming way, maybe try to tease them in.  Now you? 

HENNEBERGER:  I didn‘t see it.  I thought he was listless, churlish and internally inconsistent.  We ran a pretty harsh assessment today by our new conservative columnist Pete Wayner, who worked for George W. Bush.  I was sorry to -- 

MATTHEWS:  What did you expect to hear from him? 

HENNEBERGER:  I was sorry to see how much of it I had to agree with. 

I thought there—

MATTHEWS:  You are grimacing, Clarence. 

PAGE:  Often things don‘t play well out in the hustings.  We beltway people—

MATTHEWS:  I think he charmed me again.  He was grand.  He was Eisenhower.  He was above it all. 

HENNEBERGER:  He took pot shots at Bush and then said, but let‘s not relitigate. 

PAGE:  People agree with that though.  People do know things were a mess when he came into office, and he is not going to do everything in a year.  They have felt he was losing touch, which he was.  He himself admitted he has to go out there and communicate again what‘s really going on. 

But this was a speech—you know the Mario Cuomo line about how we campaign in poetry and govern in prose.  He had to mix both last night.  That is why it was kind of clunky. 

HENNEBERGER:  Did you hear poetry?  I didn‘t hear poetry.

PAGE:  There was poetry.  There was poetry in there because he had to

he had to inspire people for the fight ahead, including when he told the Democrats, don‘t head for the door—head for the hills.  That is the kind of cliche metaphor that is also true.  It sent a very strong message that I‘m not going to back down on health care.  We are going to—

HENNEBERGER:  The health care I thought was the absolutely strongest part it. 

MATTHEWS:  Didn‘t you get a sense last night you were listening to Shimon Peres, a guy who is like president of the country, but not the political leader, like he was above the politics.  He was trying to bring the politicians together.  Peres always tries to do over there. 

HENNEBERGER:  He said that, but after half an hour of taking these shots, then you can‘t say, but let all get along.  It doesn‘t work then. 

MATTHEWS:  What shots? 

HENNEBERGER:  He said, you know, this is—I inherited two wars. 

MATTHEWS:  Fact.  Fact. 

HENNEBERGER:  :  It is a fact, but then don‘t say, after talking about that for half an hour, that you don‘t want to relitigate, I guess not, because you just did. 

PAGE:  Well, the moderates out there that he‘s been losing want to hear that. 

MATTHEWS:  You‘re listening to your conservative logger mates.  I think any president—

HENNEBERGER:  I want to like it. 

MATTHEWS:  I think Hoover did the Democrats a big favor by having the Depression on his watch, proving it was his, and letting everybody know it was his.  The trouble with this administration is they created the Great Depression almost and walked out the door, leaving President Obama to take the heat for it.  That‘s why he had to keep going back into what you call relitigating. 

HENNEBERGER:  And, at the same time, he brings up all these Republican talking points about the deficit reduction, about the tax cuts, and then says, but they did it wrong.  That is inconsistent. 

MATTHEWS:  You are running a center left government, you have to appeal to the center and the left.  I‘m sorry. 

PAGE:  -- the right-wing base, though, when he offers tax cuts, even if they are modest. 

MATTHEWS:  Did anybody else in that room last night look like the leader of the country? 

PAGE:  He was the man. 

MATTHEWS:  Did Mitch McConnell, did John Cornyn, laughing up there like hyenas, laughing at the president when he‘s trying to bring them together.  Every shot of those guys—I don‘t think they were statesmen.  He was. 

Melinda Henneberger, I generally agree with you.  Clarence Page, almost always. 

Join us again tomorrow at 5:00 and 7:00 Eastern, more HARDBALL. 

Right now, it‘s time for “THE ED SHOW” with Ed Schultz. 

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

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