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updated 6/25/2012 3:35:23 PM ET 2012-06-25T19:35:23

Guest Host: Michael Smerconish


Guests: Pete Williams, Eugene Robinson, Amanda Drury, Joan Walsh, Rep. Elijah Cummings, Rep. Patrick Meehan, Susan Page, Kathleen Kane, Diane Dimond, Manuel Roig-Franzia

MICHAEL SMERCONISH, GUEST HOST: President Obama stands up to House
Republicans.

Let`s play some HARDBALL.

Good evening. I`m Michael Smerconish, in for Chris Matthews.

Leading off tonight: executive privilege. President Obama invoked it
for the first time today, withholding documents House Republicans are
seeking regarding the failed gun enforcement operation called Fast and
Furious.

Late today, those same Republicans voted to recommend holding Attorney
General Eric Holder in contempt of Congress, which Holder called an
extraordinary, unprecedented and entirely unnecessary action.

But the president`s move adds fuel to an already red-hot fire, and
we`ll get into that at the top of the program.

And it`s the question that makes or breaks presidents who are running
for reelection. Are you better off now than you were four years ago?
We`ve got surprising new poll numbers that are sure to make the White House
smile, if you believe them.

Plus, Mitt Romney now says Marco Rubio is being vetted to be his
running mate. But was Romney forced to say that after being caught flat-
footed on the campaign trail?

And the Jerry Sandusky trial. The defense rests without calling
Sandusky himself to the witness stand.

Finally, Mitt Romney`s dancing horse is the inspiration for some
horseplay by Stephen Colbert. More of that in the "Sideshow."

We begin with President Obama invoking executive privilege against
House Republicans. Pete Williams, of course, is NBC`s justice
correspondent.

Pete, executive privilege puts the president squarely in the middle of
Fast and Furious. Or was he already there?

PETE WILLIAMS, NBC CORRESPONDENT: No, I don`t think he was. There
was never any real allegation that the president was involved in it. Let`s
go back to what Fast and Furious was.

SMERCONISH: Please.

WILLIAMS: This was the name of an ATF operation intended to track the
flow of guns that were bought illegally in the U.S. and then smuggled into
Mexico, and agents were instructed to simply watch them, to let the guns go
in, in hopes of finding out where they ended up. But well over a thousand
guns were allowed to walk, never were found.

And two showed up at the scene where a U.S. Border Patrol agent named
Brian Terry was killed in a shoot-out with drug dealers, though there has
never been a conclusive match between those weapons and the rounds that
killed him, but nonetheless, raised a lot of concern about this operation.

Now, the Justice Department says when the attorney general found out
about it, he put a stop to it, has taken some administration measures to
punish the people involved and has an investigation going on.

But the problem here, Michael, is that the Justice Department
initially sent a letter up to Congress when it was first asked about this
thing, No, no guns were walked. Well, that was obviously wrong, and now
the committee -- the Congress wants to know how was it that the Justice
Department said that thing wrong in the first place, and how did it -- what
did it then do when Congress started to investigate?

So that`s the documents that this fight is all about.

SMERCONISH: And it`s been catnip for conservatives who already have
had antipathy towards Attorney General Eric Holder. So is it now politics
or is it substance?

WILLIAMS: Well, I guess there`s a little bit of both here because the
Justice Department is in a somewhat weakened position because by their own
admission, this initial letter was wrong. And Congress wants to know how
it was that it was misinformed.

On the other hand, undoubtedly, there`s some politics involved here.
The attorney general says he thinks this is entirely a political sideshow.
I`ll let others decide what the degree is.

But now here`s where it gets tricky. The committee voted today to
recommend contempt. That goes now to the full House. If the full House
votes contempt, Michael, there`s a federal law that says it goes to the
U.S. attorney for the District of Columbia, works for the Justice
Department, and he under federal law must convene a grand jury to see
whether the attorney general should be indicted for a misdemeanor for
contempt of Congress.

Now, there`s two tricks here. One is there`s a longstanding view in
the Justice Department that Congress can`t tell it what to do. But
secondly -- and this is what the development today was, why it`s is
important -- it`s been the view of both Republicans and Democrats when they
run the Justice Department that when a president asserts executive
privilege, then the U.S. attorney must not proceed, that that`s the end of
the matter.

So that`s why the decision by the White House to exert executive
privilege over some of the documents that are disputed here -- that`s why
it sort of changed what may happen, if and when this ever gets to court.

SMERCONISH: Pete, great primer. Thank you very much for that.

WILLIAMS: You bet.

SMERCONISH: Congressman Elijah Cummings of Maryland is the ranking
Democrat on the House Oversight and Government Reform Committee.

Congressman, allow me to share with you what -- how Speaker John
Boehner`s office said today -- they issued a statement about the rising
stakes and they said, "The White House`s decision to invoke executive
privilege implies that White House officials were either involved in Fast
and Furious or the coverup that followed."

What, sir, is your response?

REP. ELIJAH CUMMINGS (D-MD), HOUSE OVERSIGHT COMMITTEE: I am so
saddened that Speaker Boehner would say that. I wish he would spend time
in our committee and he`s realize that a lot of this is based on politics
and simply not on facts.

This is unprecedented. We`ve never had an attorney general to be
found in contempt. And we`ve never had a situation where a president
asserted executive privilege and the vote went forward.

Again, I think it`s very unfortunate. The attorney general sat down
with the Chairman Issa and made it clear that he wants to cooperate, will
cooperate with him and work with him. But again, he`s -- here`s an
attorney general who has produced 7,600 pages of documents, gone through
all kinds of -- over two million e-mails, has appeared before Congress nine
times in 16 months.

And just spent -- and then when Fast and Furious, when he learned of
the tactics, he immediately stopped that operation and ordered his own
investigation.

This did not have to be. I think, basically, we had a situation today
where Chairman Issa was saying, Our way or the highway. And it`s so sad
that we are in the political situation that we are in with the partisan
divide that we have.

As you know, this was a vote -- every vote, including amendments, were
strictly on party lines. You couldn`t get one Democrat to agree with this
because we knew that it was unprecedented and that it was unfair and we
knew that this attorney general was trying to work with the -- with
Chairman Issa.

But at the same time, understand, as the attorney general has said in
various -- in the meeting that I -- that we had the other day -- he said
Look, this is my watch. I am -- I want to cooperate, but there are certain
things that I have to protect as a part of my job.

And these are things attorney generals in history, all throughout
history, have protected, like certain notes that were, you know,
communicated between -- deliberative type notes that they might establish
in trying to...

(CROSSTALK)

SMERCONISH: Congressman, is it possible, in your view, for a
determination to be made by some of the committee members as to whether
there was a coverup, or whether there was a retaliation against the
whistleblower without a production of the additional information? Do they
already have enough where they can glean the answer to those seemingly
legitimate questions?

CUMMINGS: Well, we already have information -- the attorney general
provided a thousand pages to explain this whole issue of whether there was
a coverup. He already did that. He even provided them with some documents
they didn`t even request.

As far as any type of retaliation against witnesses, again, he has
made it clear that he`s willing to provide documents, will sit down and
explain those documents. And so I think that that -- again, those things
are available.

SMERCONISH: I get...

(CROSSTALK)

CUMMINGS: Let me tell you one other thing.

SMERCONISH: Sure.

CUMMINGS: It`s interesting the executive privilege -- when the
president asserted executive privilege, he did not include documents that
might be useful in determining whether or not there was my type of
retaliation with regard to whistleblowers. And so -- but go ahead.

SMERCONISH: I get, sir, that you`re saying this is driven by partisan
on the part of the GOP-controlled House. By the president invoking
executive privilege, I think this takes this issue from that which it has
been, a stalking horse for conservatives thus far, to something that will
now be an issue front and center in the 2012 presidential race.

What`s your assessment of the political risk involved by the president
invoking executive privilege?

CUMMINGS: I think that -- in the end, I think that when all the dust
settles, this battle will be resolved. I don`t think it`ll be that much of
a significant issue. I just don`t.

I think that, again, the attorney general -- when the dust clears,
people will see that the attorney general has bent over backwards trying to
work with the chairman...

SMERCONISH: Understood.

CUMMINGS: ... and others.

SMERCONISH: Understood. Thank you, Congressman Elijah Cummings. We
appreciate it, ranking member of the House Oversight and Government Reform
Committee.

CUMMINGS: Thank you.

SMERCONISH: Before voting to hold Attorney General Holder in contempt
of Congress, passions ran high in the House Oversight Committee. Here is
just a sampling.

(BEGIN VIDEO CLIP)

REP. CAROLYN MALONEY (D), NEW YORK: The House of Representatives has
never in our long history held an attorney general in contempt. And I am
horrified that you are going forward with this contempt charge.

REP. DAN BURTON (R), INDIANA: The president of the United States has
claimed executive privilege. That brings into question whether or not Eric
Holder knew about it, and how much did the president know about this?

REP. JASON CHAFFETZ (R), UTAH: This is not about Eric Holder. It is
about the Department of Justice and justice in the United States of
America. Have the guts -- I hope we have the guts and the perseverance to
get to the bottom of this.

REP. EDOLPHUS TOWNS (D), NEW YORK: In all of my 30 years of being in
the United States Congress, the way he was treated being in the United
States Congress, the way he was treated when he was here testifying before
this committee, I must admit I have never seen anybody treated in that
fashion.

(END VIDEO CLIP)

SMERCONISH: Congressman Patrick Meehan is a Pennsylvania Republican.
Congressman, good to see you. Has Eric Holder been disrespected by your
committee previously?

REP. PATRICK MEEHAN (R), PENNSYLVANIA: Well, Mike, I don`t believe
he`s been disrespected by the committee. And we really can`t look at this
as something about Eric Holder. What we really need to be looking at this
as an investigation into tactics by the ATF, which clearly violated
department policy, which led to the death of a border agent, you know, who
was left to bleed out in the desert.

And we`re trying to get to the bottom of a situation that that same
attorney general has identified as fatally flawed.

SMERCONISH: But I guess I ask the question because you heard
Congressman Cummings say that he thinks this is partisan-driven. There
have been references made, as well, to him having -- the attorney general
of the United States having been referred to as a liar by Chairman Issa.
And so, it takes on a life of its own, that it`s antipathy-driven. You say
no to that.

MEEHAN: Well, I certainly try to separate myself from that, and I
think in the passion and the news clips that will be generated, people will
look for those moments in which there are sort of, you know, high-tension
things that are said.

But the fact of the matter is, a great deal of the discussion related
to the facts, or basically, the absence of facts that are relevant to a
very, very important issue. And it was effectively, What did the people in
the highest levels of the Justice Department know with respect to this
investigation?

And what kind of active role did they play in the direction of the --
you know, of the activities which have violated department policy, and
again, led to not just the deaths of Border Agent Terry, but literally
hundreds of deaths on the other side of the border?

SMERCONISH: Congressman, in a letter to the president, Attorney
General Eric Holder said complying with Congressman Issa`s subpoena would
have a chilling effect. Here`s what he wrote. "It would inhibit the
candor of such executive branch deliberations in the future and
significantly impair the executive branch`s ability to respond
independently and effectively to Congressional oversight."

Respond to that criticism and concern.

MEEHAN: Well, it`s an issue that -- you know, the court has basically
dealt with rather, you know, recently. And I happened to be in the Justice
Department or soon had left it when a lot of these same questions were
being asked, and the court determined that some of those deliberations were
not protected information from the executive privilege.

So it`s, you know, advice to the president himself. There`s real
questions about the extent to which these will be covered by that kind of
an invocation. But in the end, it`s really a shame that we have to get
here in the first place. The ask -- request for simple documentation that
may help us to understand more about the facts is what`s lacking.

SMERCONISH: Congressman Patrick Meehan, thank you for your time.

MEEHAN: Great to be with you, Mike. Thank you.

SMERCONISH: Coming up: Are you better off than you were four years
ago? That`s the big question facing any incumbent president running for
reelection. And today, a new poll shows more and more Americans say, yes,
they are better off. We`ll get to how that`s playing in the presidential
race next.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Lots of new poll numbers in battleground states in the
presidential race. And for that, we check the HARDBALL "Scoreboard,"
Starting in Michigan, where the third poll in a row shows a very tight
race. The new We Ask America poll has Mitt Romney up 2, 45-43.

Now to Iowa and another close contest. The We Ask America poll there
has Obama up 1, 45-44. Next to Arizona, a red state Democrats hope they
can put in play. A new PPP poll shows it`s getting close, Romney 49, Obama
46 percent. And finally, to Colorado, where PPP has Obama up 7, 49 to 42.

We`ll be right back.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL. There was some surprisingly
good news for the White House from the latest Bloomberg News poll released
today. Now, take a look at this. The poll shows President Obama with a
huge lead over Mitt Romney nationally, 13 points. And the president has a
16-point lead over Romney on the question of which candidate has a better
economic vision for the future.

The poll also shows Mitt Romney`s efforts to paint President Obama as
out of touch haven`t worked. Voters overwhelmingly say he`s the one who`s
out of touch. It`s important to note that the poll is an outlier compared
to other recent national polls, which show the race to be very tight.

So what should we make of this poll? And with four-and-a-half months
to go until the election, where do things stand?

Eugene Robinson is a Pulitzer Prize-winning columnist for "The
Washington Post" and an MSNBC political analyst. And Susan Page is the
Washington bureau chief for "USA Today." Welcome both.

Here`s why I`m skeptical. Perhaps the key question for the election
will be whether voters feel better off than they were four years ago.
According to the latest Bloomberg poll, 45 percent say they are better off.

Susan, what I have ringing in my head is the revelation recently by
the Census Bureau that 35 percent of our net worth has been lost in the
last couple of years. So -- and that`s largely attributable to people who
are seeing the value of their home, their principal asset, decline.

So you know, if I`m seeing the value of my home decline, how can I now
say, if I`m one of the 45 percent, Well, I think I`m better off than I was
four years ago?

SUSAN PAGE, "USA TODAY": Well, you know, it`s possible -- and when
you look at the head-to-head number in this poll, it looks like maybe the
sample had a kind of Democratic tinge. I mean, you know, the reason polls
have margins of error is because there`s a margin of error when you take a
national poll.

And if that`s the case, perhaps the number is the lower. I do think
it`s possible that, given that we`ve been in a recovery for some time now
that people are beginning to feel maybe a little more hopeful, although
some of the economic numbers, as you say, that we`ve seen just in the past
couple of weeks have indicated perhaps that things are slowing down this
spring, and as they did the last two springs, and those attitudes could
turn around.

But you know, I think it is possible that there are some people in
America who begin to feel like we`ve come through the worst of it. Things
are about to get better.

SMERCONISH: Sure. Yes, I don`t doubt that. Eugene, just to stick
with the science of the polling for a moment, could it lie in the fact that
this is of likely and not registered voters? I`m not sure how we could
determine or discern who`s a likely voter as we sit here today in mid-June.

EUGENE ROBINSON, "WASHINGTON POST," MSNBC POLITICAL ANALYST: Well,
yes, pollsters have different screens that they use to determine who`s a
likely voter and who`s not. And so, you know, those are the kinds of
details that you have to look at when you evaluate every poll.

As you said earlier, this poll is an outlier.

I -- certainly, the head-to-head number, the 13-point gap is -- we are
not seeing that in any other poll. But the general sort of sunniness or --
and optimism that comes through in this poll, I do think is -- is in the
same direction that we have seen in some other polling, that people just
are feeling a bit better about the economy and about their lives.

SMERCONISH: Want to get out of the funk I think is how I would
describe it.

Now, here is another interesting finding from the poll. It`s the
question of which candidate is more out of touch; 55 percent of respondents
say Romney is more out of touch; 36 percent say it is the president. Could
that have to do with aggressive advertising that the president has been
using to go after Romney`s record both at Bain and as governor of
Massachusetts?

Today, the president`s campaign is out with two strong new ads hitting
Romney. The first one accuses Romney of raising taxes on everyone but
millionaires in Massachusetts. Take a look at this.

(BEGIN VIDEO CLIP, BARACK OBAMA PRESIDENTIAL CAMPAIGN AD)

MITT ROMNEY (R), PRESIDENTIAL CANDIDATE: I`m going to reduce taxes.
I`m going to roll...

NARRATOR: As governor, Mitt Romney did cut taxes on millionaires like
himself. But he raised taxes and fees everyone else, $1.5 billion, over
1,000 fee hikes, on health care, on school bus rides, on milk, on driver`s
licenses, to nursing homes, or lead poisoning prevention, on meat and
poultry inspection, on fisherman, gun owners, on nurses, on electricians,
on hospitals, on funeral homes, on mental health services, on hospice care.

Romney economics didn`t work then and won`t work now.

(END VIDEO CLIP)

NARRATOR: And the other ad hits Romney for his time as a corporate
raider at Bain and for outsourcing jobs. It looks like this.

(BEGIN VIDEO CLIP, BARACK OBAMA PRESIDENTIAL CAMPAIGN AD)

NARRATOR: Running for governor, Mitt Romney campaigned as a job
creator.

ROMNEY: I know how jobs are created.

NARRATOR: But as a corporate raider, he shipped jobs to China and
Mexico. As governor, he did the same thing,outsourcing state jobs to
India.

(END VIDEO CLIP)

SMERCONISH: Susan Page, is it possible that the Obama campaign was
successful in defining Governor Mitt Romney before he was able to define
himself for the general election?

PAGE: You know, I think that`s definitely happened. There are some
signs that it is happening. I went to watch two focus groups. It`s called
these Wal-Mart moms, which are moms who shop at Wal-Mart and one group in
Richmond, Virginia, and the other in Las Vegas.

And the only thing they really knew about Mitt Romney was what they
had learned in these negative ads that have run about him and they said
things like he fired people, he shipped jobs overseas.

And it is an effort, I think, by the Obama campaign to chip away at
the credential that Mitt Romney has as someone who knows what to do about
the economy. And, yes, I think, as negative ads often are, I think these
are being effective in defining him before Americans know very much about
him.

SMERCONISH: And, Eugene, it could be a net-net of a long and bloody
primary season, if it is true.

ROBINSON: Yes. It certainly could be.

It -- the -- he took a lot of incoming fire during the primary season
from fellow Republicans, who went after him on the Bain Capital issue and
on -- on the general sort of Richie Rich or Scrooge McDuck issue about
Romney and his lifestyle.

And I think some of that probably stuck and remains in people`s
memories.

SMERCONISH: Here is another issue. Mitt Romney has dodged saying
whether he agrees or disagrees with the president`s new deportation stance.

In dealing with Latino voters, he stressed an economic message.
Today, the RNC released this ad both in English and in Spanish.

(BEGIN VIDEO CLIP, REPUBLICAN NATIONAL COMMITTEE AD)

QUESTION: Let me ask you about the economy.

NARRATOR: Latino unemployment in the double digits, rampant
foreclosures.

UNIDENTIFIED MALE: The unemployment rates up.

UNIDENTIFIED MALE: It`s bad for the people who can`t get work.

CANDY CROWLEY, CNN: For Hispanics, the unemployment rose to 11
percent.

UNIDENTIFIED MALE: Hispanics concerned about the economy.

UNIDENTIFIED FEMALE: Unemployment among Latinos is still in double
digits.

So (INAUDIBLE) as a broken promise.

(END VIDEO CLIP)

SMERCONISH: Eugene, big 48 hours coming up, Governor Romney tomorrow,
the president on Friday both speaking to a prestigious Latino group.

And to my ear, to my eye, he`s yet to really define himself on the
president`s proposal of last Friday and how he would differ from it.

ROBINSON: Well, he hasn`t answered the straight question of whether
he would rescind it or really what he thinks about it.

And, you know, his problem with Latino voters now, you can come out
with this economic message, Romney can. But you have got to convince
people to listen to it, to hear what you are trying to say. And I think
his position -- where he is right now is that a lot of Latino voters aren`t
willing to listen to him because they kind of think the Republican Party
has already made up its mind and isn`t interested in them or their votes.

And, fair or unfair, I think that`s a pretty firmly implanted
impression right now that they are going to have to overcome.

SMERCONISH: It will be interesting to see what he says tomorrow. And
of course we will have the details on HARDBALL.

Thank you, Eugene Robinson and Susan Page.

Up next, Mitt Romney`s dancing horse is heading to the Olympics. And
that`s got Stephen Colbert in the mood for dancing. That`s next in the
"Sideshow."

Remember, you can follow me on Twitter if you can spell Smerconish.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL. Time now for the "Sideshow."

First up, you may remember Stephen Colbert`s enthusiastic support last
week for Ann Romney`s horse in the Olympic dressage trials, the sport also
referred to as horse ballet.

Well, her mare, Rafalca, qualified for London and Colbert took credit
last night.

(BEGIN VIDEO CLIP, "THE COLBERT REPORT")

STEPHEN COLBERT, HOST, "THE COLBERT REPORT": I did it!

(CHEERING AND APPLAUSE)

COLBERT: I horsed it!

(CHEERING AND APPLAUSE)

COLBERT: Eat it -- eat it all you naysayers.

(LAUGHTER)

COLBERT: Jimmy, crank up the jockey jams.

(MUSIC)

(CHEERING AND APPLAUSE)

(LAUGHTER)

(MUSIC)

(CHEERING AND APPLAUSE)

(LAUGHTER)

(END VIDEO CLIP)

SMERCONISH: We can`t decide who has the better moves there, the horse
or Colbert.

And, lastly, Washington Nationals pitcher Bryce Harper coined a new
phrase last week when a reporter asked the 19-year-old if he would
celebrate a three-hit game and win over the Toronto Blue Jays with a beer,
legal in Canada, where the drinking age is lower than in the U.S.?

Harper is a Mormon who abstains from alcohol, and he said this.

(BEGIN VIDEO CLIP)

BRYCE HARPER, WASHINGTON NATIONALS PITCHER: I`m not answering that.

QUESTION: (OFF-MIKE)

(CROSSTALK)

HARPER: That`s a clown question, bro.

(END VIDEO CLIP)

SMERCONISH: "That`s a clown question, bro."

Well, that trending phrase made its way to Capitol Hill in just a
couple of days. Take a look at fellow Nevadan and Mormon Senate Majority
Leader Harry Reid yesterday.

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D-NV), MAJORITY LEADER: I don`t want to answer that
question. That`s a clown question, bro.

(LAUGHTER)

(END VIDEO CLIP)

SMERCONISH: Unlike Bryce Harper, Senator Reid went on to answer the
question that he had been asked.

Up next: The defense in the Jerry Sandusky trial rests without
calling Sandusky to the stand. Is their last best hope a mistrial? That`s
ahead.

You`re watching HARDBALL, the place for politics.

(COMMERCIAL BREAK)

AMANDA DRURY, CNBC CORRESPONDENT: I`m Amanda Drury with your CNBC
"Market Wrap."

Well, the Dow today lost 13 points, the S&P falling by two, and the
Nasdaq gained just a fraction. Well, Fed Chairman Ben Bernanke says the
Central Bank will extend its Operation Twist to keep rates low, but
investors were hoping for more aggressive action to boost the economy.

Meanwhile, Procter & Gamble shares lost nearly 3 percent after the
company lowered its fourth-quarter outlook. And Burger King shares rose
more than 3 percent on their first day of trade.

And that`s it from CNBC, first in business worldwide -- back over to
HARDBALL.

SMERCONISH: Welcome back to HARDBALL.

The legal team for Jerry Sandusky rested their case today. But they
declined to call their own client to stand, after great speculation of
whether the former Penn State coach would testify in his own defense.

With closing arguments scheduled for tomorrow morning, this case could
be in the jury`s hands as soon as tomorrow afternoon. Sandusky denies all
51 sex abuse charges the prosecution alleges he committed over a 15-year
span.

Kathleen Kane is the Democratic candidate for attorney general in
Pennsylvania and she`s a former sex crimes prosecutor. Diane Dimond is
cover thing case in Bellefonte, Pennsylvania, for The Daily Beast and
"Newsweek."

Diane, I`m curious to take your pulse on something because you have
been in that courtroom. From afar, it seemed to me that Dottie Sandusky,
wife of, was sort of the big gun for the defense, and yet she appears to
have corroborated some of the testimony of certain of the boys, in other
words, putting them and putting Jerry in the same place at the same time.

DIANE DIMOND, INVESTIGATIVE JOURNALIST: Yes.

SMERCONISH: What did you think of her as a witness?

DIMOND: Well, it is obvious that it was Dottie Sandusky who was the
one that was speaking for the family here when we learned today that he
wasn`t going to be testifying.

She did corroborate some of what the accusers were saying. She said
that they did spend the night, they did sleep in that bedroom we have heard
so much about down in the basement on the waterbed, that her husband did go
down to say good night to them, not to tuck them into bed, as the
prosecution kept saying.

But she was also strong on saying, that never happened, nothing bad
ever happened. I would have heard it in the basement. I have good
hearing. You know, some of those boys were clingy and conniving and
crafty.

So I`m not sure she did a whole lot of good, but I think it was
important to have at least one Sandusky on the stand here.

SMERCONISH: Kathleen Kane, something else that struck me about Dottie
Sandusky`s testimony was -- and with your history as someone who has
prosecuted these cases, maybe you will enlighten us -- there was not so
much as testimony about a hug between she and Jerry.

Am I wrong in thinking that the jury would have questions in their
minds about what`s the sex life like between Jerry and Dottie Sandusky?
And yet that subject wasn`t broached.

KATHLEEN KANE, FORMER SEX CRIMES PROSECUTOR: Well, that`s an
interesting question.

But in all of the cases that I have ever prosecuted, that`s never
actually come up. It has never been a question in the mind of the juries,
because, afterwards, we ask the jury, what did you think? Were there any
questions left unanswered? And that`s never been brought up.

So, I think that probably the strength of the prosecution witnesses,
too, have already set the stage and as to who this man is and who he has a
sexual preference for.

SMERCONISH: Diane Dimond, in the closing tomorrow by the prosecutor,
do you think that he makes hay over the fact that we never heard from
Sandusky? And by that, I mean, did Amendola make a promise in his opening
that he didn`t deliver?

Obviously, as an attorney, I recognize Jerry Sandusky has got a Fifth
Amendment right never to take the stand. But if there had been a
commitment...

DIMOND: Right.

SMERCONISH: ... made that you would hear from him, it could come back
to haunt tomorrow.

DIMOND: Well, it was a sort of vague reference too in the opening
argument or the opening statement of Amendola that, I`m going to tell you
about Jerry Sandusky and you will hear from him that blah, blah, blah.

So, that could have meant that you will hear from him via the Bob
Costas interview. It may have been that he intended to put Jerry Sandusky
on the stand. But I think, as time went on and the strength of this
prosecution`s case -- I mean, we had eight accusers here crying on the
stand, raw emotion for days and days on end.

I think maybe, when the strength of that hit the defense, they thought
better of putting Jerry Sandusky on any kind of record if they ever plan to
appeal this.

SMERCONISH: Kathleen Kane, Diane makes reference to the Bob Costas
interview. And while that which the jury did hear I thought was
compelling, during the course of the last few days, we find that there was
a piece of that tape that America never saw and this jury never saw, which
to my ear was a confession, was an admission of sorts.

Why do you think that wasn`t introduced at this trial, that part of
the Costas tape?

KANE: I really don`t know.

Maybe they couldn`t authenticate it. Maybe the prosecution couldn`t
get the right witnesses up to authenticate the tape. But it was extremely
damaging.

SMERCONISH: Yes.

KANE: The part that they didn`t show was probably more damaging than
the part that they did show.

SMERCONISH: Right.

KANE: He virtually came out and said, well, I didn`t abuse every
child.

But what he didn`t say was, I didn`t abuse any child.

And that`s -- an omission is just as much a confession as saying, I
did it.

SMERCONISH: Hey, Diane Dimond, you know...

DIMOND: Yes.

SMERCONISH: ... I have been a big fan of yours for a long time
because of your street smarts in these criminal cases.

Tell me, what...

DIMOND: Thank you.

SMERCONISH: Give me the vibe from those jurors. When you eyeball
them, what are you taking away from it?

DIMOND: I`m taking away that most cases have a jury that, after a few
days, they get to know each other and they chitchat when they come in and
out. They member smile, pat each other on the back. Not this jury.

This jury throughout, Michael, has been very, very solemn. They have
been very attentive. I haven`t seen one of them doze off, which you know
is very rare. I think, if I could get back to the NBC tape and why that
wasn`t played, that extra little snippet, Judge John Cleland, I wish every
judge in America would take a lesson from him.

He has been very forthright, very determined to get this case through.
And I think, because there was a big break here today in the middle of the
day, he came -- had everybody come back, and he said to the prosecutor, OK,
what have you got?

And that was among -- that NBC snippet was among some of what I think
the prosecution wanted to show. And the judge said to him, I will bet you,
you have already shown the whole -- almost the whole Costas thing. I rule
cannot show that. He wants to get this to the jurors.

SMERCONISH: He is the antithesis of Lance Ito. Look how quickly
this case moved.

Kathleen Kane, you have prosecuted sex abuse cases like this. How
important are those closing statements tomorrow? Do they get conflated in
the media or do they have the importance that we put on them?

KATHLEEN KANE, FMR. SEX CRIMES PROSECUTOR: They have a lot of
importance. Now, the judge will instruct the jury the statements of the
lawyers are not evidence and they must strictly look at the evidence, as
you know, Michael.

But those state closing statements wrap the entire case up into one
neat package. It brings in all of the avenues and presents to the jury why
they should find this man guilty and consequently, the defense will do the
same thing. But they are extremely important. They are the last pieces of
evidence, the last statements that the jury will hear before they go back
to the deliberation room.

SMERCONISH: Big day. He could be sleeping in his own bed for the
final time tonight or tomorrow night. Of course, he could be exonerated.
What do I know?

Thank you, Kathleen Kane and Diane Dimond.

Up next, Mitt Romney now says Marco Rubio is being vetted as a
potential vice presidential running mate. Was Romney forced to say that?
And does Rubio really have a shot.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: We talked a lot on this program about the purge of voter
rolls down in Florida. Well, a new poll finds strong support for
Republican Governor Rick Scott`s efforts to remove non-citizens from the
rolls. This is a new Quinnipiac poll that finds 60 percent of Floridians
support the voter purge, even though voting rights groups say that
legitimate voters may be barred from voting.

We`ll be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ROMNEY: There was a story that originated today apparently at ABC,
based upon reports of supposedly outside unnamed adviser of mine. The
story was entirely false. Marco Rubio is being thoroughly vetted as part
of our process.

(END VIDEO CLIP)

SMERCONISH: We are back.

That was Mitt Romney last night addressing a story that consumed a
day of campaigning. Controversy over whether Marco Rubio didn`t make the
governor`s short list of vice presidential candidates.

The news whipped conservatives and Rubio supporters into a frenzy.
After Romney`s announcement, Rubio did an interview on FOX. Let`s watch.

(BEGIN VIDEO CLIP)

GRETA VAN SUSTEREN, FOX NEWS: So, how has the day been?

SEN. MARCO RUBIO (R), FLORIDA: It has been an interesting day. You
know, look, I don`t want to talk about the process. I have enough at this
point. It`s Governor Romney`s process and I want to be respectful of that.

VAN SUSTEREN: Have you talked to the governor today?

RUBIO: I have not.

(END VIDEO CLIP)

SMERCONISH: Manuel Roig-Franzia is a "Washington Post" reporter and
author of a brand new book, "The Rise of Marco Rubio", Joe Walsh is an
MSNBC political analyst and editor-at-large of "Salon".

Joan, you first. Read the tea leaves. What just transpired?

JOAN WALSH, SALON.COM: Well, first of all, Mitt Romney absolutely
had to come out and say that Marco Rubio is being vetted. He had to say
that. I have no inside information on whether it`s true or not. But it
would be devastating to any Latino voters who may possibly have some prayer
of maybe taking a look at his candidacy.

I mean, Michael, you know that the president put Mitt Romney in a box
on with what he did on immigration last week. Romney has not responded.
He has not said whether he would repeal that decision. It`s been a
terrible week for Mitt Romney on immigration.

And so to have that come out and have the reaction that we had
yesterday and to let it stand, I think would be saying that I don`t care
about Latino, the Hispanic vote.

SMERCONISH: Well, and conservatives. He worked so hard in primary
season, and has thus far not tapped back towards the center.

Manuel, I`m enjoying your book very, very much. The question for you
-- because you know the subject so well -- could Marco Rubio withstand the
vetting that would come?

MANUEL ROIG-FRANZIA, AUTHOR, "THE RISE OF MARCO RUBIO": Well, you
would see a flood of stories immediately. And what the Romney camp would
have to do is weigh the very large positives, all the energy he would bring
and what a great speaker he is, how popular he is and the conservative wing
of the Republican Party against the vetting issues.

SMERCONISH: Give me an example. What would be at the top of the
list you think could cause a controversy?

ROIG-FRANZIA: Well, you think you would see a lot of stories about
his regard spend when he was in Florida and he got a Republican Party
credit card, state credit card. He used it for some personal things that
were -- some of them silly like movie tickets and wine at a wine shop, $130
haircut. Some of them larger like an iPad.

And, you know, he paid it back after it came out that he was using
this for personal use. But that could get dug into in a much, much bigger
way.

Then there`s the story about his family`s migration to the United
States.

SMERCONISH: Whether they were fleeing Castro who had just come to
power or whether the two were unrelated.

ROIG-FRANZIA: Yes. I think that`s become a permanent part of his
biography now. For those who have -- are not familiar with it. Very core
part of his political identity was that his family had been pushed off of
the island of Cuba by Castro. And in reality, I was able to find out that
in -- they came in 1956 before Castro invaded.

It undercut this notion that they had been pushed away. He says
there`s still exiles, but it raised questions about, you know, whether
voters could trust the things that he was telling them.

SMERCONISH: Manuel, one other aspect I learned from you because you
published in post five myths about Marco Rubio. One of them being having
Rubio on the Republican ticket would automatically attract Latino voters.
And you point out that there`s a schism of sorts, you know, outsiders tend
to look at the Latino community as monolithic, when in fact that`s not the
case.

ROIG-FRANZIA: Yes. Marco Rubio is Cuban-American. They represent
about 3.5 percent, 4 percent of Latinos in the United States. The great,
great majority are Mexicans or Central Americans. Historically, there`s
been some tension because Cubans get preference when they come to the
United States almost unquestioned that they`ll be able to stay in the
United States. That same preference isn`t given to migrants from Mexico.

And then there`s the issue of his positions on a lot of issues that
are important to Latino activists. And he may have to do some
rehabilitation there since he has said that he opposes in-state tuition and
he`s for e-verify.

SMERCONISH: Joan Walsh, I think all of this is, is to the benefit of
Tim Pawlenty. My view for what it`s worth is that Mitt Romney will be
guided by the Hippocratic Oath. The first rule: do no harm. That this is
all helping someone like Pawlenty who doesn`t bring the issues that might
arise with Marco Rubio. Who benefits from the conversation we`re having?

WALSH: Well, you know, Tim Pawlenty is having a little boomlet, a
little wave here, Michael. You`re right. He probably does no harm. On
the other hand, it looks a little bit like George Bush picking Dan Quayle
so not to be overshadowed by someone more articulate and charismatic than
he was.

And also think, you know, there`s a lot of myth making about Tim
Pawlenty. He does have working class roots, but does he set the working
class on fire? I`m not sure about that. He set nobody on fire during the
primaries. He bowed out very early.

So, you know, to the extent the primaries were a referendum at all on
his excitement on electability, I don`t know what he adds except he`s
probably vetted somewhat and he`s not dangerous.

SMERCONISH: Manuel, sources close to the Romney campaign told
"Politico" that Pawlenty ask leading the pack of perspective nominees
because he`s strong where Romney is weak. Quote, "Several top Republicans
said that as the hockey playing son of a blue-collar worker and a longtime
champion of connecting what he has called Sam`s Club Republicans, Pawlenty
would be comfortable campaigning among working class voters in a way that
Romney will never be."

Can you see the star of Pawlenty rising given the conversation we`re
having about Rubio.

ROIG-FRANZIA: I can see it rising, falling, rising again, in the
same way that the Portman star rose and fell and the same way the Bobby
Jindal star rose and fell.

The one who seems to have consistently in the mix has been Marco
Rubio. And, you now, we got an affirmation of that yesterday, that he has
that special something, that "it" quality, that x-factor, whatever you want
to call it. And the question is how much "it" do they want on their
ticket?

SMERCONISH: Joan Walsh, Intrade, I checked today, Portman, Pawlenty,
Rubio, in that order. If I look at Joan-trade, who`s at the top? Not who
you think, not who you like, just who`s most likely at the moment to be
picked by Mitt Romney?

WALSH: Oh, I guess it`s Pawlenty but I really have no idea. We
should also say his bridge issues -- he`s not without vetting issues too.
I think we go back and take a look at his ideas about infrastructure way
back when he was governor of Minnesota.

There would be questions. He`s not quite as bland. He`s certainly
not unaccomplished as we`re acting like he is. So, anybody who surfaces at
this point or resurfaces, Michael, I think comes in for a lot of new
vetting. And nobody is without questions in their past.

SMERCONISH: Thank you, Manuel Roig-Franzia. Good luck with your
book.

Thank you, Joan Walsh.

When we return, allow me to finish with another acquittal in a high
profile perjury case.

You`re watching HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Let me finish tonight with some thoughts about the not
guilty verdict in the Roger Clemens trial. In the last 24 hours, I`ve
heard many pair this result with the outcome of the John Edwards trial.
Yes, viewed one way, the feds are 0-2 in recent high profile trials.

But I don`t see the cases similarly. The Edwards outcome, it made
sense to me. Where the campaign finance laws had never previously been
used for such a prosecution, and in light of the dispute as to whether
money given by two supporters were for the benefit of the campaign or to
contain a private dispute.

And where John Edwards was a broken man, I viewed the prosecution as
excessive. I`m no fan of Edwards, but ours is not a system to try someone
because they bottomed out.

The Clemens case was something entirely different. The issue was
whether the most decorated baseball pitcher in history lied to Congress
while under oath in hearings about steroids. And about that, we should all
be concerned. Our society is governed by the rule of law. One foundation
of the rule of law is the oath that witnesses are administrated in legal
proceedings. Without the commitment of witnesses to tell the truth, our
legal process falls. It was important in the Clinton impeachment process
and it`s the reason that George Zimmerman`s wife sits in a jail cell today
in Florida.

So where Andy Pettitte, Clemens` friend, former teammate, former
roommate, said that he thought Roger Clemens admitted to using HGH during a
conversation in 1999, an allegation that Clemens denied, there was grounds
for a perjury prosecution. That`s why the Congress referred the case to
the Justice Department in 2008.

At the recent trial, Pettitte seemed to buckle on cross examination
and agreed with a defense attorney that there was a 50/50 chance he had
misheard or misunderstood Clemens. That testimony and the credibility
problems of prosecution witness Brian McNamee probably explain the outcome
of the recent case.

But there`s no shame in federal prosecutors bringing the charges.
There was more at stake than the legacy of the man they called "The Rocket"
or congressional interest in juicing. Perjury is a notoriously difficult
crime to prove, because sometimes truth can be elusive. Many baseball fans
would oppose prosecuting Roger Clemens due to his popularity. But that
makes it harder to charge in a difficult case, less those with celebrity be
treated differently. That is, if we truly wish to be a nation of laws and
not of men.

That`s HARDBALL for now. Thank you for being with us.

"POLITICS NATION" with Al Sharpton starts right now.

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

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