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Zero Hour Nears For White House Leak Investigation; Harriet Miers Withdraws Nomination to Supreme Court; Interview With Former Supreme Court Nominee Robert Bork

Aired October 27, 2005 - 22:00   ET


AARON BROWN, CNN ANCHOR: Good evening again, everyone.
Do kids still dream of being president, or a spot on the Supreme Court, for that matter? And would they still if they dreamed up days like today?


ANNOUNCER: Harriet Miers withdraws her nomination to the Supreme Court. How did it all go so wrong for the Bush White House? Suzanne Malveaux on the breakdown of a breakdown.

And was it the president's own party who forced Miers out?

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: It appears that the only voices that have been heard are the voices of the extreme of the president's own patty.

ANNOUNCER: Joe Johns hit the Hill to find out if political infighting Ms. Miers' downfall.

Plus, time is up tomorrow in the CIA leak case, as reports of possible perjury charges surface for Karl Rove -- Kelli Arena on how the man some call Bush's brain is facing his toughest test.



Live from the CNN Broadcast Center in New York, here's Aaron Brown.

BROWN: Well, good evening again. As Larry said, Anderson is off for the rest of the week.

We hate to begin with such a tacky line as, we told you so, but, in fact, we did tell you so, just days after the president nominated Harriet Miers. We should add, for context, a line from the writer Charles Krauthammer a decade-and-half ago. "Wanting to be president," he said," requires the taste for an occasional plate of crow."

Tonight, it is crow and more than that -- on the one side, the Miers mess and a conservative insurrection, on the other -- the Liddy -- the Libby/Rove/Plame affair -- reversal of fortune today and perhaps indictments tomorrow.

We have most of our Washington bureau on the job tonight, Suzanne Malveaux, Kelli Arena, Tom Foreman, Joe Johns. We will have reports from all of them.

We begin with Harriet Miers, who still has her job at the White House to go back to, and CNN's Suzanne Malveaux, who always has herself.


SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT (voice-over): The withdrawal comes after weeks of debilitating criticism of Harriet Miers, from the right, who complained her credentials weren't conservative enough, and from some on the left, who viewed her as an unqualified Bush crony.

Wednesday night, Harriet Miers called Mr. Bush at the residence to deliver the devastating news and, 12 hours later, handed him her official letter in the office, saying, "I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interests of the country."

But insiders familiar with the campaign to push her nomination forward say a confluence of events Wednesday brought her doom.

The day began with a "Washington Post" report about a 1993 Miers speech, reigniting a firestorm from conservatives who saw it as proof she supported abortion rights.

BAY BUCHANAN, CONSERVATIVE ANALYST: She did not have the kind of strong pro-life philosophy that we had been told she did. And I think things are going to unravel further.

MALVEAUX: By mid-morning, Senate Majority Leader Bill Frist told the president face-to-face the Miers nomination was not looking good.

A flurry of meetings took place throughout the day to assess her status. On the Hill, Miers support team, Ed Gillespie, Senator John Cornyn and Federal Society representative Leonard Leo, huddled. In various circles, there was talk an exit strategy might be necessary.

Just before 6:00, the group Concerned Women for America, a key conservative organization, issued a press release calling for Miers' withdrawal. Other conservative organizations considered following suit.

All through the day and into the evening, Miers worked to complete her 60-page Senate questionnaire. Then she sat down with senior White House staff, including Chief of Staff Andy Card, where she was given a reality check of the difficulties ahead.

Insiders say Miers was not surprised and made the decision to withdraw on her own.

ED GILLESPIE, FORMER REPUBLICAN NATIONAL COMMITTEE CHAIRMAN: If I have one regret in this -- the way this has come to an end, it's that she was not given that opportunity to make her case.

MALVEAUX: At 8:30, she called the president at the White House residence to tell him. An hour later, Senator Frist called Card to tell him the Miers nomination was in trouble. Unbeknownst to him, Miers had already reached that conclusion.


MALVEAUX: And Miers was seen here late in the day here at the White House resuming focus on her job as White House counsel and, ironically, as the one, of course, who will be vetting potential candidates to replace her for President Bush's next Supreme Court pick.



BROWN: Very quickly, they sit down with her last night and they say, this is going really badly. So, was she pushed or did she jump?

MALVEAUX: Well, certainly, nobody here is saying that she was pushed. They all say that she made up her mind, that she was informed -- fully informed, however -- of what she was looking at, that it was going to be a very difficult hearing process ahead of her and that she had not won over too many supporters in the Senate.

BROWN: Suzanne, thanks a lot -- a -- a -- a very good day of work for you -- Suzanne Malveaux at the White House.

The president has now made two appointments to the Supreme Court. John Roberts was a huge success, almost from the moment his name was announced. Harriet Miers, for a lot of reasons, was a flaming failure.

So, what are the lessons? And how could a smart, sophisticated political operation, like the Bush White House, blow it so badly?

Here's CNN's Joe Johns.


JOE JOHNS, CNN CAPITOL HILL CORRESPONDENT (voice-over): In the first place, John Roberts was a hard act to follow. He had a judicial record and writings the Senate could read. Miers, as White House counsel, came up short at the start.

DAN COATS, FORMER U.S. SENATOR: Roberts had a paper trial. And she didn't. She came out of private practice. Then, her five years in the White House were in positions where she couldn't create a paper trail to be released.

JOHNS: The fact is, though, the White House made more than one miscalculation. It started out by stressing intangibles, like the nominee's beliefs.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I know her heart. I know what she believes.

JOHNS: And enlisting the support of religious leaders, like Focus on the Family's James Dobson.

DR. JAMES DOBSON, PRESIDENT, FOCUS ON THE FAMILY: Harriet Miers is -- is an evangelical Christian, that she is from a very conservative church.

JOHNS: That actually hurt the nomination, says Manny Miranda, who was once Senate Majority Leader Bill Frist's point man on judges.

MANUEL MIRANDA, JUDICIAL ACTIVIST: But the message was the incorrect one, to basically rely upon faith, rely upon personal views. That contradicts the entire conservative message for the past several years, that we should not -- that there's a difference between personal views and judicial views.

JOHNS: Miranda opposes a faith test, because he says it can be used to scuttle nominations, as well as promote them. He says conservatives want justices who strictly follow the law, not their personal inclinations, which ties into another concern, that Miers may not be as conservative as supporters claim she was, like a justice nominated by the first President Bush who rankles the right to this day.

(on camera): So, at the root of this, though, at least part of it was fear of another David Souter?

SEN. GEORGE ALLEN (R), VIRGINIA: Well, I look at that as my responsibility, to advise and consent. And I didn't want to have someone on there, on this very important one, where those of us who are conservatives can gain ground. There's three conservatives, four liberal activists and two swing votes. This is one of the swing justices. And we need to make ground up.

JOHNS (voice-over): Still, many in the Senate wish it hadn't gone down this way. Senator George Voinovich of Ohio, who has tried to strike a middle ground on judges, say, it's a shame.

(on camera): So, you didn't say it yourself, but do you think this was unfair?

REP. GEORGE VOINOVICH (R), OHIO: Yes, I do. Yes, I do. I -- I -- you know, it's the old story. I'm -- when you say the our father, forgive us our trespasses, as we forgive those that trespass against us, and there really isn't much forgiveness here in Washington or looking out in terms of another human being and treating them like they would like to be treated.

JOHNS: Now the president has another chance. And both sides are already gearing up for the Supreme Court fight that hasn't happened yet. The Senate is waiting.


JOHNS: There are some other factors that can be blamed for short-circuiting this nomination, including charges of cronyism in the administration and the power of outside conservative groups.

But what's interesting is that some of the same people who started out this year demanding an up-or-down vote for the president's judicial nominees are celebrating because Harriet Miers didn't get one -- Aaron.

BROWN: Joe, thank you very much for your work today -- Joe Johns in Washington.

It's been 18 years since a nominee for the high court has withdrawn from consideration. Douglas Ginsburg, you may recall, was a conservative judge, qualified, but was a child of the '60s. He smoked pot. He followed the failed nomination of Robert Bork, who was also conservative, highly qualified, but perhaps too much a child of the '60, the 1860s, for the Democratic Senate at the time. He was, famously, Borked.

We talked with him earlier tonight.


BROWN: Judge Bork, was Ms. Miers Borked, as we have come to understand the term?

ROBERT BORK, FORMER SUPREME COURT NOMINEE: I don't think so. I don't think there was any -- there are any accusations of -- against her that were false. It was just a simple question of whether she had the qualifications, primarily, knowledge of constitutional law -- that the position requires.

And, apparently, the senators she visited were unimpressed.

BROWN: I -- I know you don't want to look back at all of this. You want to look forward. I appreciate that. But how did this happen, do you think?

BORK: Well, I -- I can't explain it. It was one of the biggest blunders I think this administration has made. It sounds like they have lost their grip.

I think he was looking for somebody who didn't have a paper trail that could be attacked, somebody who hadn't written or said much that could be attacked. Of course, now it comes out now that there are a few things she said that could be attacked.


BROWN: Judge Robert Bork.

If there's a shred of good news for the president today, it may be this -- at least today is not tomorrow. That's when the grand jury investigation into the leak of a CIA agent's identity wraps up. And it may end up in indictments against a couple of White House insiders, including this man, Karl Rove.

This evening, when Mr. Rove arrived home, he managed to wave at the cameras, although we are pretty sure he wasn't all that happy to see them standing outside his house. He also told them it was a wonderful night in Washington. We wonder if he will think the same tomorrow.

Here's CNN's Kelli Arena.


KELLI ARENA, CNN JUSTICE CORRESPONDENT (voice over): The president's top political adviser has been unable to escape the cameras for weeks now. Lawyers involved in the leak investigation tell CNN, the special prosecutor is seriously considering a perjury charge against Karl Rove, who testified four times before the grand jury.

Former prosecutor Andrew McBride has been talking with lawyers familiar with the case.

ANDREW MCBRIDE, FORMER FEDERAL PROSECUTOR: I think right now what's happening is a very, very heated exchange between Mr. Rove's lawyers and Mr. Fitzgerald's team over whether or not Mr. Rove will be indicted for perjury and whether his last appearance before the grand jury was sufficient to correct any omission or false statement he might have made previously.

ARENA: Sources with knowledge of the investigation say, the vice president's chief of staff, Scooter Libby, may also be in legal jeopardy for possibly making false statements. Former independent counsel Robert Ray says, to bring those charges, Fitzgerald will have to prove that Rove and Libby intended to mislead investigators, a high legal bar.

ROBERT RAY, FORMER INDEPENDENT COUNSEL: It explains in part why this investigation has gone on so long. It also explains in part why he went to so much trouble to get the benefit of Judith Miller's testimony.

ARENA: Miller, "The New York Times" reporter, told the grand jury the source she went to jail to protect was Scooter Libby.

Both Rove and Libby's lawyers have refused to comment on their clients' status. But both men have denied repeatedly that they leaked CIA operative Valerie Plame's name.

Even if they didn't, sources say, Fitzgerald is now considering charges that have to do with Rove and Libby's alleged behavior after the investigation into the leak began. Sources with knowledge of the investigation said we will know for sure Friday, when Fitzgerald is expected to announce his decision on whether to bring criminal charges.


ARENA: Now, the focus on Rove and Libby doesn't mean that other individuals are in the clear. Lawyers involved in this case say that Fitzgerald is also carefully scrutinizing the actions of other White House and even some State Department officials -- Aaron.

BROWN: Well, we will all know tomorrow. And I think we will all be -- and, probably, this is true at the White House, too -- relieved to know tomorrow and we will get on to the next phase of this.

Kelli, thank you.


ARENA: You're welcome.

BROWN: We have much more tonight on both the CIA leak matter and where it's headed and what it means, and the withdrawal of Harriet Miers.

But, first, a quick look at some of the other stories that are making news at this moment.

Today, the committee investigating the U.N.'s oil-for-food scam issued its final report. It says slipshod management allowed Saddam Hussein's regime to pocket 1.5 billion -- billion -- dollars in kickbacks, over 2,200 -- from over 2200 companies. It recommends establishing a chief operating officer to ensure auditing and oversight are handled better. Indeed.

Bird flu pandemic, if it comes to that, could be more devastating to the United States than a terrorist with a nuclear bomb. So warned Senator Tom Harkin of Iowa today, as the Senate approved nearly $8 billion for stockpiling vaccines and other drugs.

The president tried to buck up Floridians today. There is no shortage of unhappy campers there and cars running on empty, it turns out. His brother, of course, is Governor Jeb Bush. And his brother says, it will take a few more days to stabilize the recovery from Wilma.

And the need for a beta -- beta-blocker takes on new meaning, as a record 23rd tropical storm of the season forms off the coast of Nicaragua, possibly hitting there on Sunday. Trick or treat? Well, wait and see.

Still ahead, less than a year ago, a voting base of religious conservatives and faithful moderates, they won the president a second four years in office. So, who abandoned who?

And, later, a mystery at a New Orleans hospital. But, before it can be solved, detectives need some proof it actually happened.

We will take a break first. From New York, on a very busy night, this is NEWSNIGHT.


BROWN: In moments like today, the withdrawal of Ms. Miers, the spinners spin, but they know and you know what happened here. Ms. Miers, for the most part, failed to pass the test of many of the very people who put George W. Bush in the White House. Some of them just wanted a better-known quantity. More than a few wanted a guaranteed vote against Roe v. Wade. In so many ways, abortion shapes the national debate. And it did again here.

Here's CNN's Tom Foreman.


TOM FOREMAN, CNN CORRESPONDENT (voice-over): Oh, for those glory days when the president's political juggernaut was at full steam, fueled by a base of religious conservatives topped with faithful moderates, unstoppable, unswerving.

BUSH: Let me put it to you this way. I earned capital in the campaign, political capital. And now I intend to spend it.

FOREMAN: But, across the street from the Supreme Court, at the National Pro-Life Action Center, Paul Schenck is sending an unmistakable message now. His group opposed Harriet Miers and will take on the White House again, unless the next candidate is firmly in the conservative camp.

PAUL SCHENCK, EXECUTIVE DIRECTOR, NATIONAL PRO-LIFE ACTION CENTER: I think it was a mistake for the Republicans to count on religious conservatives as -- as being lockstep supporters of their agenda.

FOREMAN (on camera): Do you care which political party is in the White House?

SCHENCK: No. I think we can go to traditional Democrats, old- line Democrats. I think we can go to third-party people.

FOREMAN: That's like heresy here in Washington now, isn't it?

SCHENCK: Well, less and less.

FOREMAN (voice-over): Some conservatives are convinced George Bush promised Supreme Court nominees would share their deepest beliefs on issues like abortion, gay marriage.

The enormously influential Family Research Council is led by Tony Perkins.

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL: Let's pray. Pray like we have never prayed before.

The message is, Mr. President, we're with you. We want to support you. We want to help you. But you cannot take us to a place that we, through our conviction, cannot go. And that is not to maintain the current structure of the court.

FOREMAN: Religious conservatives insist, they're not trying to push the president around, but they say they have waited 20 years to tip the court decidedly in their favor. And George Bush much help. LANIER SWANN, DIRECTOR OF GOVERNMENT RELATIONS, CONCERNED WOMEN FOR AMERICA: There is no question that this has been a difficult time for the president and a difficult time for the administration, but...

FOREMAN (on camera): But have you guys made it more difficult?

SWANN: Have the conservatives made it more difficult? Absolutely not. You cannot put on our shoulders decisions that have been made at 1600 Pennsylvania Avenue.

FOREMAN (on camera): There is an old joke about a native chief who is ordered by a local government to move his people from the best land by the river to the worst land. You know, he's told, you're the chief. You can make them go. Yes, he replies. But, if I do that, I won't be a chief much longer.

(voice-over): It's a parable conservatives want their chief in the White House to remember.

PERKINS: We will go with the leadership, as they're going in the right direction. But, when they go and kind of move off the reservation, we're not with them.

SCHENCK: He can't ask us again to embrace a question mark. The next nominee has to be an exclamation mark.

FOREMAN: Not 100 yards from the Supreme Court, on Paul Schenck's building, hangs a biblical warning about the power of God: "He changes times and seasons. He sets up kings and deposes them."


FOREMAN: Every conservative I talked to today made one thing very clear: Their faith and their beliefs come first. They became Republicans because they believed the Republicans believe that also.

And now, they say, if the Republicans really aren't willing to put their political capital where their mouths are, then they may be looking at other parties and at other options.

BROWN: Tom, thank you very much -- Tom Foreman in Washington tonight.

Forgive the cliche, but it is the president's worst nightmare, friendly-fire. Every president has taken a round or two, President Carter famously so at the hands of Senator Ted Kennedy. Until now, President Bush has avoided this fate. He's managed to guard his right flank. The fact that he got hammered this time may have something to do with the weaknesses of Harriet Miers or the difficulty of sending a signal about abortion without appearing to.

Or is the hard right simply getting stronger and getting bolder?

Earlier tonight, we spoke with John Danforth, the former senator, former ambassador to the U.N., and an Episcopal priest as well.

We started by asking about the winners and the losers.


JOHN DANFORTH, FORMER U.S. AMBASSADOR TO UNITED NATIONS: The big winner is the right wing of American politics. They have scored a big victory. This was a power play on their part. And they won it.

The big loser is President Bush. They took on the president, when they thought that he was in a vulnerable position. And he was. And they took on Harriet Miers for no explainable reason. It was really an outrage, in my opinion, that this happened.

BROWN: What does that portend for where we're going as a country?

DANFORTH: Well, I -- I am very concerned about the ascendancy of the political right, particularly in the Republican Party.

I mean, it's -- it's very obvious that nobody can do enough to please them. The president certainly can't. All this business about appealing to the political base, pandering to the political base, telling the political base that they're wonderful, doing one thing after another to -- to try to make the political base happy, look what it got the president. They gave him a kick in the teeth.

BROWN: Do you feel this is just a pendulum moment, that this is the way the pendulum swings in the party, or that the party has been taken over by the people you feel uncomfortable with?

DANFORTH: I think all of that. I think it's been taken over by people I feel uncomfortable with and a lot of Republicans feel uncomfortable with.

I think that -- that these people are -- are -- are very mean in their -- in their willingness to destroy a human being. I think that the pendulum will swing back to the traditional Republican Party, which has nothing to do with these people.

BROWN: Tell me if you agree with this, that -- everybody talks about, the other guy wants a litmus test, and we don't want a litmus test. But the fact is that both sides want litmus tests.

DANFORTH: They sure do.

BROWN: They want to know absolutely, 100 percent, that that judge will overturn Roe vs. Wade.

DANFORTH: That's correct. They -- they want a political judge. They want a judicial activist.

This business about judicial conservatism and somebody who decides the law, that's baloney. I mean, that's what they should want. That -- that is what the judge should be, somebody who interprets the law and not makes it. But forget about that. I mean, these people are just as activist as the People For the American Way and all those organizations. BROWN: Mr. Ambassador, do you think that -- setting the -- the decision to select Ms. Miers aside for a second -- that the White House botched this, in how they, or it, managed the nomination?

DANFORTH: I -- I don't want to put the blame on the White House.

Look, I don't know who did what or what kind of planing was done or who talked to whom. I -- I -- I just don't know that.

BROWN: Look, from where I sit, it looked kind of desperate when the White House started to talk about the fact that she's an evangelical and when they threw religion into the mix, when they had been arguing and their allies had been arguing all along that a person's religion should be off limits to these discussions.

DANFORTH: They -- they should not have done that. And, under our Constitution, there cannot be a religious test for holding public office. And, certainly, you can't have a -- a Supreme Court justice operating as -- as the -- the person representing a particular religious faith.

But the fact that the White House felt that it had to do that -- it shouldn't have done it, but the fact that it -- that it thought that it had to is very, very telling. Why would they think that? Again, it's -- it's an effort to try to placate, I would say pander, to one slice of the American political spectrum.


BROWN: Former Republican Senator John Danforth.

It's an extraordinary night, to be juggling two huge stories as we are, as we have been reporting, a two-year who knew what and when and who said what to whom grand jury investigation likely wraps up tomorrow. Presidential adviser Karl Rove may face perjury charges or other charges, which is different from technical perjury, according to our next guest.

And, later, if you suspected your child committed a crime, a very serious crime, would you turn your kid in? -- another strange twist in the murder of the wife of a California attorney. That's ahead as well.

From New York and around the world, this is NEWSNIGHT.


BROWN: By this time tomorrow night, Karl Rove may have another title to go by, defendant -- or he may not. Scooter Libby, the vice president's powerful chief of staff, may be facing perjury charges -- or he may not. The special prosecutor may ask the grand jury to work a little longer, ask for an extension of its two-year term. We will know all that tomorrow.

A few days ago, on NBC's "Meet the Press," Senator Kay Bailey Hutchison of Texas said she hopes -- quote -- "It is an indictment on a crime, and not some perjury technicality, where they couldn't indict on the crime, and so they just go to something just to show that their two-year investigation was not a waste of time and taxpayer dollars."

For those of us old enough to remember the Clinton years, which I assume is all of us, we know perjury is no legal technicality. And with that in mind, we talked with the senator earlier today.


BROWN: You said over the weekend that -- or at least it was interpreted that perjury is some sort of legal technicality. Do you still -- is that really the position you want to take?

SEN. KAY BAILEY HUTCHISON (R), TEXAS: No, no. That's not what I said, and maybe I should have said, just technicality. What I was trying to say is that we have seen a -- I think we need to see a differentiation in our criminal justice system between deliberately lying to a grand jury and some sort of either misunderstanding or misstatement or something that's inadvertent. And I think the integrity of the process depends on making that distinction. That's what I meant to say, and maybe I didn't say it very well, but I think it's important for the integrity of our criminal justice system.

BROWN: But the law does make that distinction. The law makes a distinction between what is a misstatement because you actually just said something poorly, and what is a willful violation of the oath.

HUTCHISON: That's exactly right. The law does state that. And I think it's important for officers of the court, as U.S. attorneys are, or district attorneys, or anyone, and I'm not speaking specifically, nor was I earlier in the week about a specific case. But I have seen in my time in politics the criminalization of politics, Aaron. And I think that is a very dangerous thing.

BROWN: Is it the criminalization of politics if someone is untruthful to a grand jury about anything? Is it -- was Watergate a criminalization of politics? What does it mean when we talk about this?

HUTCHISON: Well, I think the criminalization of politics is when there is an indictment for something that is inadvertent. And that does happen. I have seen it happen. And when it is used as a tool for getting political retribution or winning a political office. And that's what I meant to say, that I hoped that we would not be doing that in this country because I think it is dangerous to our criminal justice system and to our political system.

BROWN: Do you worry about the impact of what's going to come down tomorrow?

HUTCHISON: I think it is very unhealthy to have leaks. It's unhealthy for the system and it's certainly unfair to the people involved to have something reported before it actually happens. I think that's -- I think I'd be very cautious about that.

(END VIDEOTAPE) BROWN: Kay Bailey Hutchison. Now, this just in, a postscript to it all. The New York Times is reporting on its Web site now the following, the grand jury will return an indictment against Lewis "Scooter" Libby, the vice president's chief of staff, the charge, making false statements. As for Karl Rove, the president's political right-hand man, The New York Times is reporting that he will not be indicted tomorrow, that he will remain under investigation, and that the special prosecutor will ask to extend the grand jury's term. The New York Times reporting so tonight.

There is a shocking new mystery tonight linked to Hurricane Katrina. What exactly happened inside this New Orleans hospital? Coming up, why some police officers think the clues point to a cold- blooded murder. We take a break. This is NEWSNIGHT.


BROWN: From the circle in New York, here's a quick look at some of the other stories that are making news today. Erica Hill joins us in Atlanta.

Good evening, Ms. Hill.

ERICA HILL, CNN HEADLINE NEWS ANCHOR: Good evening, Mr. Brown. The Bush administration looking for a new Supreme Court nominee following the sudden withdrawal this morning of Harriet Miers. The Miers nomination drew fire from conservatives and liberals alike. Miers will remain in her job as White House counsel.

A report to the U.N. General Assembly says hundreds of companies paid kickbacks to Iraq in order to do business under the now- discredited Oil-for-Food Program. A panel lead by former U.S. Federal Reserve Chairman Paul Volcker said Saddam Hussein was able to manipulate the program which was supposed to protect Iraqi citizens from sanctions aimed at the Iraqi government.

A new development in a high profile California murder case. Earlier today, 16-year-old Scott Dyleski was arraigned on charges he killed Pamela Vitale, the wife of prominent attorney Daniel Horowitz. Well, now there is word the teenager's mother, Esther Fielding, has been arrested on charges she was an accessory to the crime.

And astronomers really looking forward to Saturday night when the orbit of Mars will bring the red planet within 43.1 million miles of Earth. It may not sound like it's next door but it is the closest the red planet will come for the next in 13 years, and about 100 million miles closer than normal. Mars will look like a yellow twinkle in the nighttime sky. And if you're gazing through a backyard telescope, look for a small brilliant ball.

BROWN: We could almost reach out and touch it at 43 million miles away.

HILL: I mean, it really is just down the street.

BROWN: Yes. I'll be looking out my telescope on Saturday night, I think. Thank you, talk to you a little bit later.

A new investigation to report in New Orleans, it's no laughing matter. The attorney general's office in Louisiana has been looking into allegations at possible mercy killings at Memorial Hospital in New Orleans. We've talked about that, these allegedly took place in this aftermath of Katrina. Tonight, a new allegation, not mercy killings at all, but a possibly a cold-blooded murder.

Here's CNN's Drew Griffin.


DREW GRIFFIN, CNN CORRESPONDENT (voice-over): It is a mystery carried back to the dry desert of Albuquerque, New Mexico, a mystery of a murder victim that no one in New Orleans seems to know anything about.

But these deputies from the Bernalillo County Sheriff's Department are convinced, a woman, possibly, they say, a nurse, died a violent death inside this New Orleans hospital, and no one seems to be doing anything about it.

DET. ANTHONY MEDRANO, BERNALILLO COUNTY SHERIFF'S DEPARTMENT: Every day. I think about that every day. Same thing. I have nightmares. It kind of went away. But I think about it every day.

MATTINGLY (on camera): Do you want to know what happened to that person you saw?

MEDRANO: For her family's sake, I would really like to know.

MATTINGLY (voice-over): Detective Anthony Medrano, Sergeant Paul Jacobs (ph), and Deputy 1st Class Lawrence Tonna were part of a 40-man contingent rushed from Albuquerque to New Orleans in the hectic and lawless days after Katrina.

Their mission was to help the New Orleans Police. Divided into two tactical teams, when they arrived, they began patrolling the city's Garden District, arresting five looters. When rescue boats came under attack, the Albuquerque deputies began riding shotgun.

The two tactical teams rescued 203 people off of roofs and porches, arrested or removed boats from looters, but it was the mission one team was given on September 5th that has haunted them ever since.

MEDRANO: It was horrific to see. I think about it all the time.

GRIFFIN: They were sent to the flooded New Orleans Memorial Medical Center. The hospital had been evacuated days before. No one should be inside. But spotters found boats, possibly used by looters. The Albuquerque tactical team was to clear them out.

(on camera): The teams arrived by boat, the hospital still surround by water. They were here prepared to face looters inside. But what they actually found inside that emergency room, they say, was horrifying.

(voice-over): Immediately upon entering, they began seeing the dead.

DEPUTY LAWRENCE TONNA, BERNALILLO COUNTY SHERIFF'S DEPARTMENT: There was one right in the lobby area. And, as we cleared the first three floors, there was various bodies inside the -- some of the smaller rooms.

GRIFFIN: Bodies left in the evacuation, on beds, on floors, some wrapped in sheets, others just left, a total, according to the hospital, of 45 corpses, and all of them, again, according to the hospital, patients who did not survive the ordeal or died just before Katrina struck.

But, when the tactical unit got to the emergency room, one body, they say, was not a patient who had been left to die.

MEDRANO: It appeared that her clothing had been ripped off. And it looked like she died violently.

GRIFFIN: It was the body of a young woman in nurse's scrubs. Her skin, decomposing, made it difficult to determine her race, her pants pulled down to her ankles. She was lying face up on an examining table. And her head was in a pool of blood.

MEDRANO: It seemed like she had been shot.

GRIFFIN (on camera): Shot? Not-blunt force from a fall or anything like that? She looked like she had been shot there on that bed?

MEDRANO: To me, that's what it appeared like.

GRIFFIN (voice-over): Deputy Lawrence Tonna saw the same woman.

TONNA: On a floor in a pool of blood, obviously died a violent death.

GRIFFIN: According to their boss, Sheriff Darren White, a total of five deputies reported the same scene. And that is where the mystery begins, because the sheriff here in Albuquerque, New Mexico, finds himself and his deputies trying to help solve a murder that the New Orleans Police Department can find no evidence ever happened.

NOPD spokesperson Captain Marlon Defillo would not appear on camera, but told CNN there was no reported homicide at Memorial Medical Center. And, he says, NOPD detectives were inside Memorial on a number of occasions and did not see any homicides. Captain Defillo denied CNN's request to talk with those New Orleans Police detectives whom he says were inside Memorial.

Defillo's account, however, is backed up by the Orleans Parish coroner, who says, while there is a remote chance a murder victim's body has not yet been processed, right now, he has no evidence of a murder at Memorial and thinks the Albuquerque detectives, quote, "just got it wrong."

Back in Albuquerque, Sheriff Darren White concedes, his deputies took no photos of the crime scene, but he says he believes his deputies and says he would not be surprised if, in the chaos after Katrina, the New Orleans Police Department somehow missed a murder case.

DARREN WHITE, BERNALILLO COUNTY SHERIFF: As a detective, no matter where you are in this country, you become the voice of the victim. Her family will never know what happened to her. And that's going to play on any good law enforcement officer.

GRIFFIN: He and his deputies are coming forward, he says, not to criticize, but to help solve a mysterious murder they are convinced was committed inside Memorial Hospital.

(on camera): A spokesman for Tenet Healthcare, which owns Memorial Medical Center says the company has no reports of any employee deaths or reported rapes at Memorial and is simply unconfirmed or uncorroborated any of this report, the spokesman saying, we are simply unaware of this.

Drew griffin, CNN, New Orleans.


BROWN: Coming up, back to the White House, a White House under siege. We'll talk about how the administration got into this mess. And it is a mess it's in right now, and what, if anything, it can do to get out of it.


BROWN: Harriet Miers joins and exclusive group, certainly not happily joining it. Public reaction tonight is quite mild to the Miers withdrawal from the Supreme Court nomination, the results of a CNN/USA Today/Gallup poll just crossing out desk a few moments ago, 42 percent of the people surveyed say they are pleased by Ms. Miers' decision to withdraw, 35 percent say they are disappointed, and 23 percent are unsure. A lot of people just didn't know who she was.

Liberals happier than conservatives by nearly 2-1. So go figure that. As for gender, the next pick, 59 percent called it important for the president to choose another woman, 39 percent said it didn't a matter to them.

The White House can't be a very pleasant place to be these days. Social Security flopped, Iraq remains deadly and dangerous, there was Katrina, the grand jury, and now today Ms. Miers, a perfect storm, if you will, a perfectly bad storm. We're joined tonight by David Gergen of U.S. News & World Report in the Kennedy Center up in Boston. He has been an adviser to four presidents in both parties. He ought to know a thing or two about what's going on in the White House on good days and bad. We're always glad to see him.

David, good evening. DAVID GERGEN, U.S. NEWS & WORLD REPORT: Good evening, Aaron.

BROWN: First on the CIA stuff, The New York Times reporting associates of Lewis Libby expect him to be indicted but not Mr. Rove indicted. In terms of the political impact on the White House, does it matter?

GERGEN: Absolutely. But, Aaron, as you reported earlier, it's not that Mr. Rove is let off the hook, the story reports that he may well remain under investigation and that the prosecutor would extend the life of the grand jury. The story also goes on to point out that people don't discount the possibility there might be indictments of others. So it may not be limited to Libby. We'll just have to wait and see in all this.

What we do know is if it continues against Karl Rove, that just keeps him distracted, it keeps him -- you know, it continues to roil the waters at the White House. And I'm a little bit concerned about it -- from everybody's point of view, Aaron, as I understand it, if he extends the life of the grand jury -- this grand jury has already been extended once. And if you extend it again, you have to actually assemble a new grand jury. In other words, you have to re-present a lot of evidence to them to determine whether this new grand jury felt that he had in some way violated a law, so for example, perjury. So that could go on for a while.

BROWN: One of the things that -- and two years is a long time. One of the things I think people forget or...

GERGEN: Sure is.

BROWN: ... need to keep in mind at least is that there was in this case a long sideshow, where reporters were going to court and taking their cases up, in some cases, the Supreme Court, to avoid testifying, and that delayed the proceedings for a long time. But, still, it has been hanging out there for a while.

GERGEN: It sure has been. And I have to tell you, I think that this -- Mr. Fitzgerald, the prosecutor, has so far maintained a -- I think has really maintained his reputation intact. He has had almost no leaks out of the grand -- no leaks so far as I can tell. And he is one of the few prosecutors who has come into one of these and who hasn't been attacked by one side or the other.

But if he extends, he's going to have to justify why after two years he hasn't been able to wrap this up. He's going to have to have pretty strong reasons or he is going to come under attack for, you know, why this delay, why can't you get this wrapped, why don't you let Karl Rove go one way or the other? Because it's going to keep him dangling, you know. The old Erhlichman phrase, dangling slowly in the wind is not a pleasant place to be.

BROWN: David, I want to get you quickly on the Miers nomination. Does the president now, having been not -- this is not completely, but largely beaten up by his base, does he have to now to pick someone that is so pure to his base that there's not one social conservative on the planet who would say this is the wrong choice?

GERGEN: Well, I think this was a defeat. And it's only the second time in 160 years that somebody has withdrawn without the Senate ever acting. So it was a defeat. And it was a predictable defeat, that's why it was such a mistake. Now the question you ask is the right one. And I think here's his dilemma.

I think he clearly will want to go to his base, but can he find someone in his base who will please the conservatives who won't hugely displease much of the country, and indeed the Democrats, so you have a donnybrook in the Senate and that you may then even have a filibuster and all sorts of things can happen such as a nuclear option we talked about a long time ago?

So this is a tricky decision for him. One thing we do know is he's not likely to go to Gonzales anymore because the reason -- the rationale for not picking Harriet Miers would apply to Gonzales, and that is his paperwork out of the White House won't be available.

BROWN: Yes. It has been quite a day and quite a week and there's one more tomorrow.

GERGEN: It has been quite a week. One more coming.

BROWN: David, thank you for your time tonight. I know it has been a long day for you.

GERGEN: Thank you, Aaron.

BROWN: Thank you.

Coming up, Harriet Miers' meteoric rise and fall as Supreme Court nominee has lots of people talking. We do some listening when we come back, hopefully not for a change. This is NEWSNIGHT on CNN.


BROWN: Twenty-four days ago, Harriet Miers was pretty much an obscure White House counsel working long hours for the president in the West Wing, little-known outside of her office in her home state of Texas. Her nomination to the Supreme Court changed all that, suddenly she became a public figure and apparently fair game for all sorts of attacks and ridicule.

Here's CNN's Jeanne Moos.


JEANNE MOOS, CNN CORRESPONDENT (voice-over): The president and cartoonists called her a pit-bull in size 6 shoes, but the pit-bull got eaten alive, insulted on the Web, lampooned on late-night TV.

UNIDENTIFIED MALE: Thank you for being here on "Jeopardy," Ms. Miers.

UNIDENTIFIED MALE: Just don't ask me any legal questions. BILL MAHER, HOST, "REAL TIME WITH BILL MAHER": Because at least when Clinton talked about tapping the woman down the hall, he was just having sex with her.

MOOS: But the jabs from the right were what knocked her out.

BAY BUCHANAN, POLITICAL ANALYST: The president has made a terrible, terrible mistake.

ANN COULTER, CONSERVATIVE COMMENTATOR: We're talking about the Supreme Court. This is not a reward for, you know, best attendance at office of legal counsel meetings.

MOOS: Her qualifications, or lack thereof, were a lightning rod for ridicule. "I've never been a judge, but I did stay at a Holiday Inn Express last night."

And as for the mutual admiration she and the president felt, her own words served as a self-inflicted, kill-two-birds-with-one-quote punch.

UNIDENTIFIED FEMALE: Dear diary, George W. Bush is the most brilliant man I've ever met.

UNIDENTIFIED MALE: He's the most brilliant man I ever met.

MOOS: And though we laughed, it wasn't without a tinge of guilt.

UNIDENTIFIED MALE: I feel bad for her, yeah.

UNIDENTIFIED FEMALE: I'm sure she's very glad that it's over, because I feel pretty much poor Harriet, too.

UNIDENTIFIED MALE: Capitol Hill is -- you know, it's contact sport up there. You float the balloon, and sometimes it gets shot at. And I mean, that's one of the whole problems...

MOOS (on camera): She got machine-gunned.


MOOS (voice-over): One minute, it was Harriet Miers' dream come true, nominated to the Supreme Court. The next minute, supreme humiliation, with Harriet Miers look-alike contests pitting her against Darren's mom from "Bewitched," comedian Amy Sedaris, and even Alice Cooper.

And who among us could withstand a hairstyle retrospective?

But not everyone was saying there but for the grace of God go I. Not Nancy Grace, anyway.

NANCY GRACE, CNN HEADLINE NEWS HOST: No, I don't feel sorry for her. She'll go write a book.

UNIDENTIFIED MALE: I have no pity for her, per se. MOOS (on camera): See, I feel bad for her.

UNIDENTIFIED MALE: But he kicks puppies, so you know.

MOOS (voice-over): At least they didn't accuse Harriet Miers of doing that.

UNIDENTIFIED MALE: She likes puppies, too.

MOOS: WIP, withdraw in peace, said one Web site. It's better to have been nominated and withdrawn than never to have been nominated at all. But Harriet Miers doesn't agree, thinking back to her happy nomination.

HARRIET MIERS, FORMER SUPREME COURT NOMINEE: I have a special note this morning for my mom. Thank you for your faith.

MOOS: Let's hope her 91-year-old mom wasn't surfing the net or watching TV.

UNIDENTIFIED MALE: This wasn't a choice based on friendship. We're not even that close.


MOOS: Wonder if she'll ever wear that blue suit again without feeling blue.

Jeanne Moos, CNN, New York.



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