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Smerconish

Kasich Surging in New Hampshire; Sanders Far Ahead of Clinton in New Hampshire; Judge: Cosby Can Face Criminal Charges. Aired 9-10a ET

Aired February 06, 2016 - 09:00   ET

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

[09:00:00] VICTOR BLACKWELL, CNN ANCHOR: And that's it for this hour. We'll see you back here at 10:00 Eastern to open the CNN "NEWSROOM."

CHRISTI PAUL, CNN ANCHOR: Yes. SMERCONISH starts for you now.

(MUSIC PLAYING)

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish, big questions as we head to Tuesday's first crucial first primary in New Hampshire. Just how dirty where the tricks that Ted Cruz's campaign played against Ben Carson in Iowa and are there more on the horizon.

Plus, if Donald Trump doesn't win the nomination, will it be because the billionaire is too cheap to spend the money that's necessary?

With Bernie Sanders nearly tying her in national polls, Hillary Clinton now finds herself attacked for shouting. Is this sexism?

But first, the surging dark horse moderate John Kasich suddenly tied with Cruz for third in New Hampshire. Kasich has stayed above the fray. He's refused to attack his opponents. That doesn't mean that he's not making a huge effort.

(BEGIN VIDEOTAPE)

SMERCONISH: Joining me now is Governor John Kasich. Governor, is it fair to say that with regard to Tuesday, you are all in, meaning you are pushing all the chips to the center of the table for New Hampshire?

GOV. JOHN KASICH (R-OH), PRESIDENTIAL CANDIDATE: No, I have chips other places too, Michael. I've got - we're spending money now in South Carolina. In fact, we've got people on the ground there. We've got people on the ground in Nevada. So, no, the interesting thing is I've got people already trashing me in South Carolina and Nevada from the other campaigns. So -

SMERCONISH: That's a good sign.

KASICH: -- about three or four days. Well, yes. No, no, no, we met about three or four days ago and we're plotting kind of our next step, the calendar and all of that. We expect to do very well here. In fact, we're rising and we feel really good. SMERCONISH: I know that you said earlier in the week that if you got

smoked you'd go home. I was going to ask you to define, what does smoked mean? Does John Kasich need to be two, three?

KASICH: Like last.

SMERCONISH: That's not going to happen, right?

KASICH: No, of course it's not. It's not going to happen for about three or four reasons. One, we have the best ground game. I mean, it's unbelievable how hard people are working and how many people are here. And our TV is very positive and effective. And, you know, as you know, I just completed my 100th town hall meeting and, you know, it's going really well. That's why we're going to do really well and be able to move on.

SMERCONISH: CNN has you at 13 percent and tied with Ted Cruz in third position. What does your internal polling show?

KASICH: We think we're running in second place right now but, you know, everything is volatile and it's changing and we're going to do - we're going to do really.

SMERCONISH: And 41 percent of residents of the granite state are independent and that's why it would seem that you've got the pitch that suits this state, but can you sell it beyond New Hampshire to Republicans?

KASICH: Americans are the same everywhere. You know, they have great concerns. Americans are concerned, but I don't think panicked and angry, but they are concerned. They want somebody who is a reformer.

SMERCONISH: Are you looking at Marco Rubio, Jeb Bush, Chris Christie as your chief competitors in New Hampshire?

KASICH: That's not the way I do politics. Either they like me for who I am or that's the end of it. I don't even know what the other people are doing. I don't even turn on television, Michael. The only time I see anything on television is when I'm on my bus and there I watch the golf channel.

SMERCONISH: I have noticed that Chris Christie and Jeb Bush are working in tandem and be going after Rubio, but you're not a part of that. Why?

KASICH: I'm doing my thing. I'm not - you know, I've got a positive message. And here's going to be an interesting thing if I come out of here strong, then the media's going to begin to focus on, well, wait a minute, you mean, a positive message can really work? When people say times are a changing, maybe they are a changing. Maybe once we can talk about what we're for rather than spend our time talking about other people. I'm not interested in it.

SMERCONISH: Last night you rolled out the governator. Tell me about that relationship that you have with Arnold Schwarzenegger. KASICH: I've had that relationship for a long time. In 2010 he was

governor of California and he flew in to Ohio to campaign for me. I said "you know, Arnold, they're really beating me up, like a victim." He looked at me and he said, "John, love the beatings, love them." And so I've learned to love them.

SMERCONISH: Good luck to you on Tuesday, Governor Kasich.

KASICH: Michael, always a pleasure. Thank you

SMERCONISH: Thank you.

KASICH: God bless.

SMERCONISH: Thank you, governor.

(END VIDEOTAPE)

SMERCONISH: So here's the question that I am most often asked about the campaign. How did Cruz and Trump become the GOP's leading presidential candidates? An extremely conservative senator so disliked by colleagues that none has endorsed him and a bombastic businessman who has never held elective office. I think I know the answer.

[09:05:00]

I explained it in an essay that I co-wrote for CNN.com with Dr. Brian Rosenwalt, that's already had nearly a million views. It's the rise of the conservative talk radio host. You know, many forget that on Ronald Reagan's watch 60 percent of the senate was comprised of moderates, many of them Republican. That's changed in the last 30 years. Now there are none.

Something else has changed in the exact same time period, the media. That's not a coincidence. On the right, today's titans of talk are the Republican leadership. Now we've gotten to the point where Glen Beck flew to Iowa to endorse Cruz and in the final debate Cruz bragged about the support of Rush Limbaugh and Mark Levin. Cruz and Trump's are the kind of culmination of years of effort by the true Republican power brokers, radio hosts like Beck, Limbaugh, Hannity, Laura Ingram. They're deserving of the credit or the blame of advancing the careers of politicians in their image where sound bites are valued more than substance.

The problem for the GOP is that while the party exists to win elections, the media personalities prosper no matter the outcome by stirring discontent. Remember the talk radio Zenith came when Bill Clinton was president. For the radio hosts, the only thing better than Bill will be Hillary.

I want to talk more about that and more with our political panel. Both of them used to work at Fox News, Bob Beckel is a CNN political commentator and long time democratic strategist and E.D. Hill is a conservative analyst. All right. Take me apart. Did I get it right or wrong? E.D.HILL, CONSERVATIVE ANALYST: I think you got it right, but I also

think that they didn't start out that way. I don't think that there is intention. The motives initially were more pure but then money gets involved. They realize, justly, that the more they stir people up, the unhappier people are, the more they'll listen. It's like watching a traffic jam. When traffic goes smoothly, you're not listening to the traffic reporter. If it gets gobbled up, their jam there, then you tune in constantly.

SMERCONISH: I'll use the traffic metaphor. Are they ultimately driving the party into a ditch.

BOB BECKEL, CNN POLITICAL COMMENTATOR: By the way, I read that article and it was surprisingly well written, number one.

SMERCONISH: I'm not sure if that was a compliment or not?

BECKEL: It's not. You're exactly right. You know, it wasn't long ago, we didn't have any of these stuff. We didn't have right wing radio or left wing radio. There were just very few outlets. Now that there's hundreds of ways to get your message out. But the problem is people who vote go to the people and listen to the people that agree with them.

SMERCONISH: And passion is driving the bus in primary season, which is why I wanted to bring this up now.

BECKEL: Yes. Your point about Hillary Clinton is exactly right. What are they going to do with a Republican in the White House? Honestly, I don't know.

SMERCONISH: So tonight, big Republican debate. Carly is not on the stage. Is that a mistake for the party? It would seem that they're headed to run against a female in Hillary. Should she be on that stage?

HILL: If she finishes high enough and she has the poll numbers to prove it. I don't think a woman should get any special treatment because she's a woman. She says, she's the politician, I don't care.

SMERCONISH: She said I did better than some of these fellas in Iowa. Why shouldn't I be therefore on the stage in New Hampshire. She thinks it was rigged against her.

HILL: I don't think anything is rigged. I think that they looked at the numbers, look - the networks want to bring in as many viewers as possible. They are going to put the most popular people on. They have a set of standards that they look out and if you meet this line, you're on. If you don't, you're not.

SMERCONISH: On the Republican side of the equation, the Bush family, now coming out to play. There's a commercial, Bob, I want to show you and everybody else that W cut for Jeb - it's going to run in South Carolina. Put that up please.

(BEGIN VIDEO CLIP) GEORGE W. BUSH, FMR U.S. PRESIDENT: The first job of the president is to protect America. Our next president must be prepared to lead. I know Jeb. I know his good heart and his strong backbone. Jeb will unite our country. He knows how to bring the world together against terror and he knows when tough measures must be taken. Experience and judgment count.

(END VIDEO CLIP)

SMERCONISH: Well, you get the pitch. Beckel, what do you think? Is this going to drive the base? Why South Carolina? Why not Iowa?

BECKEL: He's popular in South Carolina, George W is. I don't understand why they haven't done this earlier, particularly with his mother. I mean, she was great.

SMERCONISH: She's the most effective weapon.

HILL: She is.

BECKEL: Now he comes up with his bumper sticker, Jeb. They don't say Bush. Who's he kidding? Was there a bad year to pick to run as a Bush? Yes. This was it. Nonetheless, you take the essence like your brother and your mother. I mean, his mother scares me. She's one of the nicest people in the world but if she told me to vote for him, I would.

SMERCONISH: Too little too late?

HILL: Yes, I agree. I think he should have had them out there way earlier. Especially as Bob said, his mom. She's effective. When you listen to her, when you see her, you like her. And that's the best person to push his message. I think it is too little too late.

SMERCONISH: Marco Rubio taking a lot of incoming now interestingly from Jeb and from Christie who are working in tandem to go after Rubio because they're all, as I like to say, punching within their weight class.

[09:10:00]

HILL: Yes, that's a good analogy. They are going after him - but the person who just head on, maybe the person who comes out the winner of all of the in fighting and that's Kasich who is sort of staying away from this whole, you know, kerfuffle.

SMERCONISH: He's the one you ought to be worried about, right? I mean, as a Democrat, shouldn't you be most worried about Kasich and perhaps Rubio linking up?

BECKEL: Yes, that's a little truth here. John is an old friend of mine. I wrote an article about to get published that said the worst nightmare for the democrats is Rubio-Kasich as a ticket.

SMERCONISH: Or Kasich-Rubio. BECKEL: Or whatever. I'll tell you, I'm willing to go out on a limb

here and say Donald Trump came seven points lower than his average in Iowa in the polls. One of the reasons for that is he got so much media attention. You could get seven points in the polls in Iowa.

SMERCONISH: I'm not sure about that.

BECKEL: I think there's an outside chance that Kasich, I mean that Rubio could beat Trump in New Hampshire.

SMERCONISH: He could win the whole thing?

BECKEL: Listen, in New Hampshire a candidate with a 20 point lead four days out we lost by 15 points. New Hampshire is the strangest place in the world. The longest four days in American presidential politics are in New Hampshire.

SMERCONISH: Do you agree with that, that Kasich could actually win this state?

HILL: No.

BECKEL: I said Rubio.

HILL: He thinks Rubio.

SMERCONISH: Rubio.

HILL: No. But I think he's going to show very well there. When you look at the polls that they've done, if you believe in the polls, the interesting thing to me is that the people who say they're going to vote for Rubio are the ones who are least committed to that, that still say they have a high percentage of wiggle room. I may switch around. The people who were voting for Trump don't give you that.

BECKEL: No.

SMERCONISH: It's a hard state to poll as you well know especially because of the 41 percent who are Is, but it seems that Bernie is two to one way ahead of Hillary. If he does defeat her by that kind of a margin, can he come out of New Hampshire with a head of steam that translates anywhere else in the country?

BECKEL: Yes. And I'll eat your tie if he comes out of there two to one. Look, he is not - Bernie's problem right now is perception. And expectations. They expect him to do very, very well. I don't think he'll do that well. I think he'll win. But if she gets (INAUDIBLE) it's nine points. I think the people are going to turn to Bernie and say, Bernie, what happened. Same thing with Trump.

HILL: Exactly.

SMERCONISH: Expectation game?

HILL: Yes. The Iowa turnout, I mean that's what happened there. SMERCONISH: So your daughter is with you. I bring this up because

Bernie won by 70 percent among younger adults in Iowa. What accounts for that? I think he's 74 years old.

HILL: He is 74 and no one's talking about his finger on the button like they did with Reagan as I'm sure you'll remember. It's all about the age but there's no issue with that which is interesting. The problem that he has coming out of New Hampshire where I think he will do very well, is that then he goes into states that are much more of a mirror of America.

There you aren't going to get the same type of turnout, I don't think. You don't have the same level of participation that you usually do in Iowa and New Hampshire and I think he is one dean scream away from really hurting himself.

BECKEL: Listen, most people who are border states with New Hampshire win, Paul Tsongas, Dukakis, we get it. Bernie has got young people, yes, but these are people - every time you have a populus movement like you have now, young people and angry white guys are in the mix.

SMERCONISH: I've gotten a lot of things wrong in this cycle. One thing I called correctly. I think I was the first to say, "boy, he has an uncanny doppelganger in Larry David."

BECKEL: What's a doppelganger?

SMERCONISH: They look awfully similar and they sound awfully similar.

BECKEL: Thanks.

SMERCONISH: So I want you to see something. In April I asked Bernie about Larry David. Here's what he said.

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS (I-VT), DEMOCRATIC PRESIDENTIAL CANDIDATE: I am a great admirer of him. I'm not a great fan of television in general but his stuff is hysterical. I really do like him.

(END VIDEO CLIP)

SMERCONISH: Tonight on "Saturday Night Live" the two will be together again. I guess to reinforce that support that Bernie is getting from young people.

HILL: Yes. People have said, Bill, it's - very similar to the Obama movement.

SMERCONISH: Is it?

HILL: Young people - it could be. I don't think so, but Obama was extremely well organized everywhere. If Bernie is getting the buses to the campuses and bringing the kids out that are supporting him, that's one thing, but Hillary Clinton is getting the older voters. When you have to have people that you can count on to come and vote in a general election, those are the folks.

SMERCONISH: I said on radio and took a lot of heat for it, that when I look at Bernie Sanders, I admire his consistency, I admire his message. Something tells me he could be the Mcgovern of the democratic party, if he won. Out of deference to you I didn't say the Mondale, by the way.

BECKEL: See that's how you work sometimes. You say I'm not going to say that. That's very well done.

SMERCONISH: But talk to me about him as a general election candidate. Bernie.

BECKEL: Bernie?

SMERCONISH: Yes. OK. Now you're reinforcing my sense.

BECKEL: I helped in his first mayoral candidate in Burlington, (INAUDIBLE) ran as a socialist. He is - when you put that name out there, are you kidding me? Look, he is taking advantage of a populous mood, happens about every 15 years in this country. Donald Trump is thinking the same thing. Younger voters fell off, by the way, over Obama, in 2008 in Iowa.

[09:15:10]

So I suspect he's not going to get that big a turnout. They'll be for him. Remember this, southern New Hampshire is full of Massachusetts people who fled on tax grounds and they're pretty moderate.

SMERCONISH: Two pros, thank you both for being here. E.D. Hill, Bob Beckel, I really thank you.

Tweet me @smerconish and I will read some of the best and worst at the end of the program.

Coming up, when the going gets tough, the tough gets opposition research. Are dirty tricks like Cruz' Iowa attack on Ben Carson, going to determine the next president?

And with O'Malley gone, Sanders and Clinton are now toughing it out and things are getting loud. But is the criticism of Hillary's tone sexist?

(BEGIN VIDEO CLIP)

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: Stand up for me, fight for me and when we win, I will stand up and fight for you every single day. Thank you and god bless you!

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:20:06] SMERCONISH: News today from "The New York Times" that as Iowa Republicans headed to the caucuses on Monday night, Ted Cruz's campaign left recorded messages for supporters with breaking news, that Carson was dropping out of the race. These kind of backstage dirty tricks are part of every campaign and will surely keep cropping up during the long road to this election.

Here today, two experts on the dark arts who have been on both sides. Roger Stone who worked for Trump, Reagan, George W. Bush and Richard Nixon says politics isn't about uniting people, it's about dividing people. David Brock is a former conservative and Clinton antagonist who after an epiphany now heads Correct the Record, that's a pro Hillary Super Pac.

First Roger Stone whose new book is, speaking of Hillary's record, "The Clinton's War on Women." That dirty trick or that combination of dirty tricks actually hurt your guy because it boosted Ted Cruz. Do you nonetheless admire what happened relative to the Carson campaign?

ROGER STONE, FMR. POLITICAL ADIVSER TO DONALD TRUMP: I don't admire it because they got caught. The question is, if it moved three votes per precinct from Carson to Cruz, it may well have cost Trump the first place finish. At a minimum, it has tainted Ted Cruz's victory and I think it is also underlying certain narratives about his character. It's kind of like tricky Ted. So he gets no bounce of New Hampshire.

SMERCONISH: Is it fair to blame Ted Cruz for his Roger Stone who got caught?

STONE: Was it fair to blame Richard Nixon for his Gordon Liddy who got caught? The blame goes to the guy at the top whether you like it or not.

SMERCONISH: Is your guy a billionaire and a miser, front page story of "The Times" today says that Trump only spent 12 million in the last calendar year, that he's lending himself money in this campaign. He could end up making money because of sales of chacka like the hats and the t-shirts and so forth. A, is that true? B, is this why there's no ground game because he won't write the check?

STONE: Well, first of all, the whole discussion of the ground game and its expense while it was true in Iowa, New Hampshire's a completely different animal. New Hampshire is media driven. Ronald Reagan didn't come back in Iowa -- pardon me, come back in New Hampshire after losing Iowa because he had a superior ground game, he came back because he destroyed George Bush in a debate only days before the vote in New Hampshire.

That's why this debate tonight is crucial for everybody. Trump could put it away tonight. Rubio could gain substantially tonight. Everything is on the table tonight.

SMERCONISH: Donald Trump, I think a rookie mistake, got snowed out of New Hampshire because he likes to sleep in his own bed. What's that all about? STONE: Yes, it's interesting between Iowa and New Hampshire, Ronald

Reagan spent a solid two weeks in New Hampshire without ever leaving the state. He was out throwing snow balls, speaking at schools, so on. I do think they want to see you on the ground and we're now to the point where every hour counts. That said, nothing is more important than tonight's debate.

SMERCONISH: David Brock is going to be here in a moment. Whose opposition research file is bigger, what Trump has on Hillary or what Hillary has on Trump?

STONE: Well, David has far more money at his disposal than I have.

SMERCONISH: Because Trump won't spend it?

STONE: Well, but doesn't matter. I spent it. So the oppo dump on Hillary can be found it's called "The Clinton's War on Women," you can go to Amazon and buy it right now.

SMERCONISH: I want to show you what Bob Woodward said on "Morning Joe: this week relative to her speaking style. Woodward not exactly a right winger which makes this, I think, of significance. Roll that tape.

(BEGIN VIDEO CLIP)

BOB WOODWARD, JOURNALIST, "THE WASHINGTON POST": I think a lot of what Hillary Clinton has to do with style and delivery, oddly enough, she shouts. There's something unrelaxed about the way she's communicating and that jumps off the television.

(END VIDEO CLIP)

SMERCONISH: You wouldn't expect Roger Stone to say, hey, that's a sexist remark but others are saying that's a sexist remark. Would we be so analytical of a man in a similar situation?

STONE: Her problem is actually worse than that, she's incapable of sounding sincere. She has a hard time lying with a straight face. She never sounds like she's telling the truth. She could be reading off the breakfast menu and you would assume that she's lying.

SMERCONISH: But the pitch and the intonation of the voice is what I'm focused on.

STONE: Actually, it has a phony quality. She sounds like she's reading from something else that someone else wrote or someone else gave her.

SMERCONISH: I remember here on CNN, after the debate at the Reagan Library, I was on the panel and said relative to Carly Fiorina that I thought her content was strong but that she needed to smile more. People were all over me saying that was a sexist comment. Do we treat women differently even maybe without knowing so than we treat men?

STONE: Very clearly in one interview I described her as shrill and the hate mail I got was extraordinary, but if we are in an age of equality, everybody wants to be treated equally, then the sincerity and the tone of Hillary Clinton are certainly fair game.

[09:25:00]

SMERCONISH: Roger Stone, thank you for being here as always. Now, for the other side, Politico says that David Brock, the conservative who switch sides and who is now running a Hillary Super Pac is helming her plans to go after Trump and he joins me now.

Hey, David, first of all, is that true, it was Glen Thrush who reported that you're the guy building the Hillary opposition research file on Trump?

DAVID BROCK, FOUNDER, CORRECT THE RECORD: We are doing that, yes, we are.

SMERCONISH: And what have you got so far that you think hasn't been - no, listen. That hasn't been played by one of his Republican opponents that could work in primary season?

BROCK: Sure. If the reality is that the Republicans have not waged a campaign against Donald Trump yet, and the reason for that is they're afraid of alienating his supporters. You have Jeb Bush calling him a jerk. Everybody knows that. You have Ted Cruz saying that he's not a real conservative. That might work in the Republican primary. It's not going to be a democratic strategy.

So we are going on the democratic side to wage the first campaign against Donald Trump and I think it has two parts. Basically part one is his record in business. That's what we have to work with. He has never elected to office. So you have to look into that and see who suffered at the hands of his success. Was he really self-created? So getting at, you know, his brand and whether there's real truth there. I think the second really important thing will be a national campaign against bigotry because what Trump is campaigning on, kinds of things he's said that, you know, in the Republican primary maybe he gets away with is not going to fly with the general electorate.

SMERCONISH: Would you say that maybe some of what are regarded as his faux pas might actually be his greatest strength? Because the sort of statements that I think you just referred to, offend many, but also drive that base of his.

BROCK: They do drive the base. I mean the question is we're going to see is there any more of that base left? Is there more white vote than we know about because he's certainly alienated Hispanics, he has alienated women. Those are indelible for those communities. I don't think it goes away.

SMERCONISH: Hey, David. I want to show you Hillary Clinton speaking on the stump in New Hampshire, then I'm going to ask you for your reaction. Roll that tape.

(BEGIN VIDEO CLIP) CLINTON: So, New Hampshire, come with me this week. Make this journey with me. Stand up for me. Fight for me. And when we win, I will stand up and fight for you every single day! Thank you and god bless you!

(END VIDEO CLIP)

SMERCONISH: What did you make of the Bob Woodward comment and comment from others that she shouts and that she needs to rein that in? Is it sexist?

BROCK: Hinges sexism to it, I mean I think you can overdo that as well. We're both men and we don't always see it. Talk to women candidates. Gender bias is out there and I do think some of the comments about Hillary's tone, we saw in '08, Michael, in the primary with President Obama, we saw sexism in the media. Sometimes it's overt, sometimes it's subtle. What you need to do, I think, to guard against it is to try to identify it and call it out when it happens.

SMERCONISH: Should she be playing more hard ball with Bernie Sanders in David Brock's opinion?

BROCK: No, I don't think so. I think the campaign's handling things just right. I think that there's a role for others and, you know, I'll say that I thought in this debate the other night it was a test of presidential leadership that Hillary Clinton passed with flying colors and that Senator Sanders failed.

It was almost embarrassing how he handled and mishandled the foreign policy questions where clearly he thinks that ISIS is the answer for every problem in the Middle East. He couldn't handle the Afghanistan principles. He thinks a vote 14 years ago is basically all he had to work with. So I think he got an F there. Really incompetent, embarrassing, shocking part of it was on his signature issue on Wall Street reform, he doesn't know what he's talking about.

Secretary Clinton had to take him to school on what Dodd Frank actually is. He's talking about putting a tax on Wall Street speculation when, in fact, it's a tax on the middle class. So, look, you know, you referenced earlier that Senator Sanders is going to be on "Saturday Night Live" tonight. Hillary Clinton is going to flint tomorrow to deal with that crisis. He's going a comedy show. That's about where we are.

SMERCONISH: Brock and Stone, or maybe it would be Stone and Brock, what a firm that would be.

Yes, of the dark arts as I like to say. Thank you, guys. I appreciate both of you being here. Keep tweeting me @smerconish. I'll get to some of the best and worst later in the program later.

Still to come, you're going to meet an undecided voter who's gone many extra miles to help her choose traveling from Montana to New Hampshire where she's seen most of the presidential candidates up close and personal. What did she learn? And bad news for Bill Cosby this week as a judge says he's not absolved from criminal prosecution in the sexual assault case in Pennsylvania but is there a case? I've got news.

(COMMERCIAL BREAK)

[09:34:18] SMERCONISH: Earlier this week, a judge Montgomery County, Pennsylvania, ruled against Bill Cosby, meaning that Cosby's criminal prosecution can move forward. Cosby's lawyers had tried to stop that prosecution by introducing testimony from the county's former district attorney. Under oath, the D.A. said that in 2005 he announced he would not charge Cosby because he did not believe he had sufficient credible and admissible evidence to convict.

That removed Cosby's ability to invoke his Fifth Amendment right against self-incrimination in his civil deposition, but the judge has now ruled that the current prosecutors are not legally bound by the former D.A.'s promise not to prosecute. Still, while the Cosby case will move forward, some of the former D.A.'s testimony made it clear how difficult it might be to get a criminal conviction of Cosby.

[09:35:07] Joining me now, veteran criminal defense attorney from Philadelphia, William J. Brennan, and civil rights attorney Areva Martin.

Areva, first, how surprised were you by the outcome this week?

AREVA MARTIN, CIVIL RIGHTS ATTORNEY: Not very surprised, Michael, particularly when you look at what this former D.A. testified to during that hearing. He's all over the place. I just couldn't believe the recklessness in which this whole matter was handled. He says he issued a press release to be the binding agreement by which Cosby would not be prosecuted and would relinquish his most important right, constitutional right against self-incrimination, and he signed a press release.

But yet his statements during the hearing were so inconsistent about what his actual words in the press release meant. I think a D.A.'s promise not to prosecute should mean something, should be withheld by the court.

But I can see why this judge was troubled by this agreement because it was so reckless -- recklessly executed. So I wasn't terribly surprised by his ruling, although I think it's not the right ruling. I think it's incorrect.

SMERCONISH: Bill Brennan, I think one of the most interesting facets and unreported facets of the D.A.'s testimony is what he had to say about attacks that might be forthcoming to the alleged victims' credibility.

I'm going to run through some things on screen that I've pulled out of that testimony. Remember, this is the old D.A. He said, "I believed Ms. Constand's account of what occurred. Well, what I think and what is provable in a courtroom, they're different things."

So, he believed her but he thought he'd have difficulty proving it.

Then this, "What I think is Andrea Constand was inappropriately touched by Mr. Cosby." And he said this, "She had ruined her own credibility and would not be believed by a jury. Inconsistencies, the contact of a civil lawyer before a criminal lawyer, the delay in reporting, the inability to get forensic evidence. I did not think she could withstand cross examination to the point where reasonable doubt could be overcome."

And how about this, Bill Brennan, "for example, within days, she had changed the date of when it happened from March of '04 back to January of '04 and finally the D.A. testified. That is why I asked the court to consider this privately because I can go through that very extensively and demonstrate to all assembled here how Ms. Constand would be easily discredited in a courtroom."

Well, if the old D.A. thinks she'd be easily discredited, that doesn't speak well for the likelihood of Bill Cosby being convicted. React.

WILLIAM J. BRENNAN, PHILADELPHIA CRIMINAL DEFENSE ATTORNEY: Michael, I agree. It's some of the most unusual and inconsistent testimony that I've ever seen. We have the former district attorney who says that he personally thinks that Mr. Cosby may have acted inappropriately, but then basically gives a primer for the defense on how to attack Ms. Constand's credibility -- the lack of a prompt complaint, the inability to gain any forensic evidence, the fact that apparently she can't decide if it happened in March or January, going to a civil lawyer.

I mean, it's a roadmap for how to attack the complaining witness in this case and then when the request is to go into a private setting, in camera, in chambers, where the transcript it says paraphrasing, let's go in the back and I'll tell you how really bad it is -- I mean, it seems to prognosticate that the prosecution is going to be an uphill battle in this case for a conviction.

SMERCONISH: Areva, if, in fact, the alleged victim a year after, because that's when she makes the report, couldn't remember whether it was March or January, that would seem significant. No?

MARTIN: Absolutely that would be significant, but I think we shouldn't rush to judgment. We know that Bruce Castor and this victim have issues, and her lawyer has said she wouldn't even participate or support a prosecution if he was the D.A. prosecuting the case.

So, we haven't heard from her. We don't know what her testimony is. So I don't think we should assume that she's not credible.

And I have real problems with Castor because he's all over the place with respect to his own testimony. So, I don't think he's such a credible witness that we can rely on what he has said to completely condemn the case that Ms. Constand has or potentially this new D.A. has against Mr. Cosby.

SMERCONISH: Bill Brennan, I should point out that Bruce Castor never met the alleged victim. He was relying on the reports that she had given to law enforcement. Respond to what you heard from Areva.

BRENNAN: Well, Michael, that's not unusual, that the district attorney would not meet the complaining witness.

[09:40:02] That's why he has detectives on his staff, a first assistant, assistant district attorneys, but he testified under oath that he read all the reports and the facts remain that this allegedly traumatic event in this individual's life where if it did occur is traumatic, and I'm not demeaning it in any way, but you would think that the person can remember, was it March or was it January?

And you would think that maybe you wouldn't wait a year and conduct an investigation into whether or not you could prevail civilly and, again, a pay day on this before you go to the police. I think the three issues, they're unpleasant but they're out there and the defense is going to go crazy on them in court.

SMERCONISH: Areva, you get the final word.

MARTIN: I agree that the testimony given by the former D.A. looks very damaging and damming to Ms. Constand, but we have not heard her testify. And I think until before we do that, we must reserve judgment on whether she will or will not be a credible witness in this case.

SMERCONISH: I think that's fair. I think that's fair. I simply wanted to illuminate the fact that the old D.A. made a lot of statements about her credibility and I should point out, he's being sued for defamation by her right now as we sit here. So, complicated case.

Thank you, Areva. Thank you, Bill. Something tells me we'll all be back talking about the Cosby case.

BRENNAN: Thank you, Michael. Thank you, Areva.

MARTIN: Thanks, Mike.

SMERCNISH: Still to come -- still to come, so many voters still undecided. This Montana woman took the initiative to educate herself by traveling across the country to New Hampshire to see the candidates up close and personal, nine of them so far.

So, what does she think so far? We'll find out in just a moment.

(COMMERCIAL BREAK)

[09:45:48] SMERCONISH: Presidential primary season is a lot like spring training in baseball. If a fan can make time to attend, you can get incredible access to the players in much smaller venues.

And that's what my next guest decided to do in New Hampshire. Kathleen Moon is a self-described passionate centrist. She spent much of the past month driving from village to village playing political tourist getting up close and personal with the candidates. So far, she has seen nine of them make their pitch. She won't be voting Tuesday. She runs a B&B in Montana. The primary

there isn't until June 7. But to my mind, she's as an invested in the politics in the Granite State as many of its actual residents.

Kathleen, thanks for being here. You described yourself to me previously as a Republican in crisis. What does that mean?

KATHLEEN MOON, POLITICAL TOURIST: Well, I was raised in a Republican family. I was a young -- young Republican for Nixon, but the party has separated and it's moved so far away and I'm still sitting kind of in the middle.

And I'm tired of saying "I'm a Republican but" so I'm trying to hear to find out what I am.

SMERCONISH: So, you loaded up the van, the dogs. I think the parrot, maybe a cat or two, I'm not sure. You drove --

MOON: Oh, no. No. No. No. No cats, Michael, no cats.

SMERCONISH: Tell me.

OK. You're a dog person. So, how easy -- how difficult has it been for you to gain access to go to all of these events?

MOON: It's incredibly easy. All the -- I've been following a website called governing under the influence, and they list all the candidate visits. You can click down the calendar, find out where you want to be, and New Hampshire's kind of small compared to Montana. I'm able to drive to most events within 45 minutes max. Like this afternoon as soon as I cut out here --

SMERCONISH: Let's do a lightning round.

MOON: Yes?

SMERCONISH: I want to do a lightning round.

MOON: Uh-huh.

SMERCONISH: I know your litmus test as a chef is, who would you have to dinner? So, I'll run through candidates you've seen, and just give the short version.

Donald trump, how was he in person?

MOON: Boring.

SMERCONISH: Really?

MOON: No dinner.

SMERCONISH: No dinner?

MOON: No dinner.

SMERCONISH: Carly Fiorina?

MOON: Wonderful dinner.

SMERCONISH: Because?

MOON: Warm, personal, incredibly intelligent, answered the questions that were given to her by the house party guests very well, and she has a vision. Presidential? Not sure, but I definitely think she should be involved in somebody's cabinet. She would be a wonderful devil's advocate on anybody's team.

SMERCONISH: Hillary Clinton?

MOON: Very warm, approachable. In a big event that I went to, when she talked to a person answering a question, you knew she was talking to them and you felt personally invited.

SMERCONISH: Not only have you attended events, you've posed questions. Chris Christie, you saw him and you questioned him. What happened?

MOON: I got a wonderful answer. The man walked around the corner in a small town hall, walked right up to me and answered for several minutes. Good eye contact. Brought in the rest of the audience as well, and it was a legitimate answer. It was solidly founded and I checked on fact checker and it was a good answer.

SMERCONISH: How about Ted Cruz? You saw Cruz as well.

MOON: I saw Ted Cruz at Robbie's and I tried not to go in with any baggage of him because of some of the things I've seen him talk about and didn't like. I would have him to dinner. Buy don't agree on a lot of things, but I find him incredibly humorous and there is an impish glint in his eye that says there'd be some good conversation to be had.

SMERCONISH: I love that you are so unpredictable. You really are a passionate centrist, because there doesn't seem to be a political theme running through your reaction as to what you think of them in person.

MOON: Yes, I tried to come here as a clean slate. You know, we see -- everybody gets to see these candidates through so much media filter and through their own handlers. It's interesting to be able to see them in a much fresher perspective.

SMERCONISH: One more, Marco Rubio.

MOON: Jury's out on that one.

Well, I saw him at a rally right after the Iowa and he pushed so many buttons in me that I just really crunched uptight and said, oh, I don't like this man.

[09:50:04] And then I realized that probably wasn't fair in that kind of environment. So, the next morning I drove over to a little town of Bow, and I went

to a town hall with him. Still wouldn't have him to dinner, but he came across much better in a smaller venue. He's just a little too smooth, too practice. The tear in the eye in a certain part of the story, I don't discount his sympathy and his emotion, but it's too practiced right now for me.

SMERCONISH: OK. Final question: you get to vote on June 7th, if they were all still in the race, and D's as well. Who is your favorite?

MOON: Not going to tell you.

SMERCONISH: You're not going to tell me or you don't know?

MOON: No. I don't know and I'm not going to tell you even if I did know.

SMERCONISH: I am envious. I am so envious of what you are doing. This sounds so cool. So have a great trip.

MOON: Thank you so much, Michael.

SMERCONISH: That's Kathleen Moon.

Just in a moment, we'll come back and take some of your best and worst tweets. Like this. Check it out.

(COMMERCIAL BREAK)

SMERCONISH: Your tweets tell me this has been a great program.

Check this out, Tony says, "This Smerconish guy is such a Hillary hater. It sickens me. What an obvious GOP whack job he is."

But then, Tony, there's W.G. Strong who says, "I thought Smerconish was supposed to be in the middle. From what I see, he leans pretty hard left."

So, the left's not happy, and the right is not happy. And as the song says, I'm stuck in the middle with you.

See you next week.