Transcript for February 5

SEN. SPECTER: Well, it depends on what the President had in mind. I think it's a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it's incorrect.

MR. RUSSERT: He said, "A wiretap requires a court order. Nothing has changed, by the way. We're talking about getting a court order before we do so."

SEN. SPECTER: Well, it depends, as I've just said, on what he had in mind. If you're talking about a wiretap in the United States, he's accurate; if you're talking about the broader program, he's inaccurate. That'd be a good question to pose to the President, Tim, at his next news conference. Can't ask me, because I'm not the President.

MR. RUSSERT: Well, tomorrow you will see the attorney general, Mr. Gonzales. At his confirmation hearing in 2005 Senator Russ Feingold of Wisconsin asked him about doing eavesdropping, surveillance, without a search warrant, and Gonzales said, "That's a hypothetical question," while the program was in place and ongoing.

SEN. SPECTER: Well, I have reviewed that transcript, and I think the attorney general is under an obligation to face that question. They had an extended discussion about torture and about electronic surveillance, and the attorney general did talk about a hypothetical question, and I think that's fair game. And I'm sure--I'm going to defer to Senator Feingold on that, that's his issue, but let's see what the attorney general has to say. I think--I think that's a fair question.

MR. RUSSERT: You mentioned the Foreign Intelligence Surveillance Act of 1978, passed by Congress, signed by President Jimmy Carter. That law says that you can go forward with eavesdropping without a court warrant as long as you go back to the foreign--the FISA court, as it's called, within 72 hours. What have you heard from the administration as to why they did not choose to take that path?

SEN. SPECTER: Well, that was one of the questions I posed in a detailed letter I sent some time ago to the attorney general, and he wasn't entirely responsive, but the thrust of what he had to say was that it was too massive to undertake and too complicated and it would have resulted in delays. His answer wasn't very clear, and that's why we're having the--the hearing to go into it.

I think this issue, Tim, of the Foreign Intelligence Surveillance Court is really big, big, big, because the President--the administration could take this entire program and lay it on the line to that court and go through what is involved in some detail, but they don't want to deal with Congress because of leaks. That court has really an outstanding record of not leaking, out of being experts, and they would be preeminently well-qualified to evaluate this program and either say it's OK or it's not OK. And if they said it was OK, it would give the American people great reassurance; and if they said it wasn't OK, knowing all the facts, then that ought to be changed.

MR. RUSSERT: Have you asked the administration, the President, to take the program and present it to the court?

SEN. SPECTER: Yeah, I have. I did that, in effect, in the letter that I sent to the attorney general, and his answer was unresponsive, simply said something like, "Well, we'll exhaust all alternatives." But that's going to be my lead question to the attorney general tomorrow.

MR. RUSSERT: When President Carter signed the Foreign Intelligence Surveillance Act into law, he had a presidential signing statement, and in that signing statement he said this, quote, "It clarifies the executive's authority to gather foreign intelligence by electric surveillance in the United States," suggesting that any inherent powers in Article 2 of the Constitution, or other--other legislation, that this, this FISA law, was central and now would be controlling. Do you agree with that?

SEN. SPECTER: Well, I think that it's a very powerful statement when the President--Carter at the time--signed it, and said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercised it by passing the law, and the President submitted to it.

Now, there is an involved question here, Tim, which we're going to get into in some depth, as to whether the President's powers under Article 2, his inherent powers, supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the constitutional powers predominate. But here you have the President signing on and saying this is it, and that's why I've been so skeptical of the program because it is in flat violation of the Foreign Intelligence Surveillance Act, but that's not the end of the discussion. There's a lot more to follow, and we won't be able to cover it all here this evening--today, this morning, but we're going to have a hearing tomorrow and some more hearings after that because of the importance of this issue and because of its complexity and depth.

MR. RUSSERT: In those future hearings, will you call former President Carter to get his insights?

SEN. SPECTER: Well, I'm--I'm thinking about it. We haven't really faced up to all the witnesses that we're going to have in the future, but I've been discussing that, and it's on the agenda for consideration.

MR. RUSSERT: Some of your Democratic colleagues, including Chuck Schumer of New York, have said that the White House has been reluctant in giving classified legal opinions and documents on the spying program. He says, quote, "Without the Justice Department memos and without more witnesses, it's hard to see how anything other than the rehashing of the administration lying is going to happen. I'm worried that these hearings could end up telling us very little when the American people are thirsty to find out what happened here."

Will you demand, even subpoena...

SEN. SPECTER: Well...

MR. RUSSERT: ...even subpoena from the administration these legal opinions?

SEN. SPECTER: Well, let's start out with Senator Schumer's statement that the hearings won't show anything. I think he's wrong. He'll have a question--he'll have an opportunity to question the attorney general at length, and we'll--we'll go into that. Will I consider a subpoena? Yeah, I'd consider it, depending on whether we need it. Let's hear from the attorney general as to what he has to say before we jump to conclusions and start to demand a--a subpoena. And Senator Schumer knows that when you deal with legal advice and memoranda within the Department of Justice, that you want to have the lawyers there express themselves openly and candidly, and there's always been a rule against disclosing those internal memoranda out of concern about having a chilling effect.

Now we're not--we're not we dealing here with the confirmation of Chief Justice Roberts, where Senator Schumer wanted to have his internal memoranda, giving us some insights into his thinking as to what he'd do as a justice, we're talking about legal analysis. And Senators Schumer and Arlen Specter can undertake that legal analysis as well as anybody else. We're talking about the law and an interpretation of statutes and cases. But listen, if we come to it and we need it, I'll be open about it. I was willing to call for these hearings in a very difficult climate, and if the necessity arises, I won't be timid.

MR. RUSSERT: For asking for a subpoena?

SEN. SPECTER: Right.

Mr. RUSSERT: Let me turn to an article I read in Newsweek magazine, headlined "Spying: Bush vs. Lawyers." And it goes as follows: "In March 2004, Attorney General John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Deputy Attorney General James Comey, Ashcroft's number 2, was acting attorney general. Assistant Attorney General Jack Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former Office of Legal Counsel lawyer Patrick Philbin, who had become national security aide to the deputy attorney general. Comey backed them up. The White House was told no reauthorization of the program. A high-level delegation--White House Counsel then Gonzales and Chief of Staff Andy Card--visited Ashcroft in the hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by his number 2."

Now, this is John Ashcroft, James Comey, Jack Goldsmith, Mr. Philbin--Patrick Philbin, all former workers at, lawyers at the Justice Department, all Bush appointees, but no longer there. Will you bring them before your committee and ask them why they opposed this program?

SEN. SPECTER: I'm considering it, and I've already initiated discussions in--in that direction. There's no doubt that Attorney General Ashcroft was involved in the process, as was his deputy, James Comey. I do think they have relevant information, and, and we're pursuing it.

MR. RUSSERT: Speaking of subpoenas, this article also captured my attention: CIA Director Porter Goss said, quote, "It is my aim, it is my hope that we will witness a grand jury investigation with reporters present, being asked to reveal who is leaking this information." Do you believe it's a good idea to subpoena reporters and ask them where they got information which they published about this eavesdropping program?

SEN. SPECTER: Tim, I think that has to be approached very circumspectly. We have had hearings in the Judiciary Committee on the jailing of New York Times reporter Judith Miller. And I think if you move into an area of really serious national security issues, that there may be a justification for it. I'm not prepared to commit on that, but if you're in an area of showing obstruction of justice, which is what--what we ended up with on the jailing of The New York Times reporter, I don't think so. I think that you have to be involved in something very serious on a national security line, and that's something that I think ought to be considered if that threshold standard is met.

MR. RUSSERT: Before you go, the day after you were elected back--re-elected back in '04, you talked about the Supreme Court and Roe v. Wade and said this, "When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think it is unlikely" that they would be selected for the Court, in effect. You voted for Judge Samuel Alito to become Justice Alito. Are you absolutely certain, absolutely convinced that he will not vote to overturn Roe v. Wade?

SEN. SPECTER: You didn't quote me quite accurately, Tim. I said I thought the President would have to be mindful of that issue in selecting Supreme Court nominees. Am I certain that Justice Alito will not vote to overturn Roe? No. Listen, guarantees don't come with Supreme Court nominations. Guarantees, as I've said before, are for used cars and washing machines. I questioned Justice Alito for about 20 minutes on the issue of Roe vs. Wade, and I thought that he addressed it as far as he could go. He talked about his respect for the precedence for Roe, for the follow-up case on Casey vs. Planned Parenthood, about reliance and about what is embedded in the culture of our community. And he had--we had judges who know him very well from the court of appeals who worked with him for years. He said he had no agenda and no preconceptions. And I concluded that he'd give that question a fair hearing and a fair determination. But no guarantees, Tim.

MR. RUSSERT: Will you be disappointed if he does vote to overturn Roe v. Wade?

SEN. SPECTER: Well, Tim, I'll tell you. I have great respect for separation of powers. President's got his job, I've got mine and the Supreme Court has theirs. My own view is that Roe vs. Wade is secure in the culture of our country. So I'm going to do my job and take my chances.

MR. RUSSERT: And I bet you hope the Pittsburgh Steelers do their job today.

SEN. SPECTER: I'm rooting for the Steelers. My only regret, Tim, is that this hearing was set on 9:30 tomorrow morning, and the earliest I could get back from Detroit was about 3 a.m., so I'll be watching it on television.

MR. RUSSERT: Senator Specter, thanks very much. And we'll be covering that hearing tomorrow.

SEN. SPECTER: Thank you for the invitation. Thank you.

MR. RUSSERT: And we'll be right back.

(Announcements)

MR. RUSSERT: And we are back.

Gentlemen, let me show you the latest NBC News/Wall Street Journal poll on domestic wiretap program sponsored by the President. Fifty-one approve, 46 disapprove. Ron Brownstein, has the President turned the corner on that?

MR. BROWNSTEIN: I think as the issue is now defined, the polls have been very consistent from the very beginning. That's one of about five or six polls that have shown a narrow plurality of majority supporting it. And I don't think the Judiciary Committee hearing at least as it's structured is likely to change that. If the debate is over whether the President has this authority or not, I think that the evidence is from the polling slightly more Americans say yes then no. What might change it is evidence about how the program was actually implemented and used and whether it caught more Americans in its net than the administration has suggested, as suggested in a story by The Washington Post today. Those are the kind of questions that might move public opinion I think more than what the Judiciary Committee is likely to debate.

MR. RUSSERT: John Harwood, the administration is going to say the President has this power, Article 2, and the authorization that Congress passed after September 11th involving Afghanistan and worldwide--not just Iraq as I said in the previous segment--segment. It was after September 11th. Is that going to fly, or is it--does it all hinge on what the Supreme Court decides? If the Supreme Court ever came down and said, "Mr. President, you violated the Constitution," what happens?

MR. HARWOOD: Well they'd have big problems at that point, and that's where the effort legislatively to give him the authority would get serious. I think the interesting near-term question from these hearings is whether or not there is any serious push by Specter or by Democrats with Specter's support, we'll see, to try to legislate this authority for the President. The White House doesn't want that to happen, but I think they're in a more difficult position if Congress says, "You say you've got the authority; we want to make it explicit," and he says, "No, thanks."

MR. BROWNSTEIN: You know, given the strategy of the Republicans in Congress and their relationship with Bush over these five years, it really does feel that if this is going to be resolved it's going to have to be at the Supreme Court. It's hard for me to see how this Republican-majority Senate engineers a full-scale confrontation with the President over this.

MR. RUSSERT: U.S. troops in Iraq: maintain current levels 28; reduce the number, 66. The exact poll I showed Congressman Boehner. He was very candid. Status quo exists in Iraq. On Novem--in November of this year a problem for his members.

MR. HARWOOD: No doubt about it, and I think one of the fascinating things we saw in our poll, Tim, was the results of the President's offensive in November and December on Iraq. Our pollsters, Peter Hart and Bill McInturff, said they thought all those victory signs appearing behind the President at those speeches may have had the opposite effect the President intended. That is to say, not "We're winning, therefore we should stay there," but "We're winning, now it's time to get out." And we're seeing this number climb. It's a big problem for Republicans, and they're not eager to have a big debate on this $90 billion supplemental spending for Iraq at the same time the President's coming out with an ag--with a budget proposal next week that's going to cut Medicare and many other programs.

MR. RUSSERT: Another big problem: lobbying. Jack Abramoff, scandals.

Ron Brownstein, which party's more influenced by special interests and lobbyists. People say Republicans, 36; Democrats, 22. Considerable change from some nine years ago when the Democrats had the edge on that, if you will. But look at this question. Lobbying reform: Will new laws make a difference? Sixty-five percent of the American people say no.

MR. BROWNSTEIN: And, in fact, you know, if there is a iron rule of ethics or reform, it's that reform always disappoints. I mean, you go back all the way through American history. We can make incremental progress, but separating money and power is something that simply is--I mean, a century ago there was a senator during the progressive era who said the purification of politics is an iridescent dream, and it is. I think the American people recognize that there's always going to be ways for people with interests to influence legislators. The question is, how does that private interest get balanced against the public interest? And there ultimately is something that voters, I think more than courts or prosecutors, have to judge. I mean, if there is an answer to the sense that Washington is overrun by special interests, it's voters holding accountable individual legislators who they feel have--have crossed that line. That is going to change behavior on Capitol Hill, I think, much more than any kind of ethics reform.

MR. BROWNSTEIN: And we certainly see that in the priority rankings of Americans. Ethics and lobbying don't rank very high; however, they're contributing to the souring of this mood, as you saw from some of the quotes that you read from--from Republican members. That's a problem for Republicans as Democrats have built this lead in the generic vote.

MR. RUSSERT: And...

MR. BROWNSTEIN: And that's--oh excuse me, Tim--I think that's the real danger for Republicans. It's not so much that Democrats are going to be able to say, "We're clean; they're dirty." When you look at polling there's--70 percent of the country consistently says both parties are equally prone to problems. What you've got, though, is a sense that Washington isn't working, it isn't solving or dealing with the problems of ordinary people, and that is producing a very strong sense of disapproval of Congress; 35 percent approval rating, or lower, in polling 60 percent of the country saying we're on the wrong track. Democrats aren't winning any popularity contests either, but as the party in power, holding all the branches of government, Republicans clearly have the most to fear from that kind of tide.

MR. RUSSERT: But Democrats get hopping mad if anyone suggests that this is anything more than a Republican scandal.

MR. HARWOOD: Well, the Abramoff scandal is fundamentally a Republican scandal, but the issue of lobbying and the relationship between lobbyists and members of Congress, that's very bipartisan. So it's a question of which scandal you're talking about. I think one of the most interesting things from your interview with Congressman Boehner is the idea that earmark reform, which in our poll ranked among--by voters as the most important thing that they thought could be done, I think he may be serious, and the Republican conference may be serious, about injecting more transparency, and that would, that would affect the number of these earmarks to get into bills.

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