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Smerconish

President Pulls US Out Of The Paris Climate Accord; Comey To Testify This Week About Trump And The Russia Probe; Hillary Clinton's Blame Game For Her Election Loss; Tiger Woods Arrested On DUI Charge. Aired 9-10a ET

Aired June 03, 2017 - 09:00   ET

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

MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world.

The president pulls out of the Paris climate accord, but was it because of the science, the economics or just because he had to throw his base a bone?

And many already calling it the most anticipated political event since election day. Former FBI director James Comey testifying this week about President Trump and the Russian probe. But can the president block it from happening?

Plus, why is it that every time Hillary Clinton takes some responsibility for her election loss, she can't help also blaming new people?

And golfer Tiger Woods making headlines with his DUI arrest even though he had zero alcohol in his bloodstream. Was his biggest mistake cooperating with the police?

But first, here is the worst part about the president's withdrawal from the Paris climate accord. It was a decision of global importance not made based on science and diplomacy, but one which appears to have been determined by a political calculus.

Sure, many people are angry. A growing list of cities, states and businesses are saying that they will nevertheless honor the terms of the accord. But there's been no noticeable rebuke from those who supported the Trump campaign.

This decision was the delivery of a campaign pledge made to the 46 percent of voters who carried him to victory, especially in rustbelt states like Pennsylvania, Michigan, Ohio and Wisconsin. After all, thus far, they'd had very little to show for their support.

OK, he withdrew from the Trans-Pacific Partnership. But despite Republicans controlling the White House and both houses of Congress, the president has been unsuccessful in implementing the travel ban. There's been no repeal and replacement of Obamacare. No tax reform. He hasn't ended NAFTA. China has not been labeled a currency manipulator. No shovels put in the ground for the border wall. Not even the moving of the embassy in Israel. The president needed to deliver on something that he promised. So, he cloaked his opposition in the promise of jobs, casting our lot with fossil fuels and not with renewable energy, all to throw his base a bone.

Unfortunately, fulfilling this commitment rebukes an environmental agreement signed by 195 nations and therein our standing in the world community. By joining the ranks of Nicaragua and Syria, we've abdicated our leadership role and we provided China with a perfect rebranding opportunity.

There is now an open question as to what will be America's role in the world. Do Americans care what their role will be? And are we back to the isolationist days of the 30s and 40s when FDR ran on a platform of keeping us out of war?

Joining me now Ron Klain, a senior White House aide to both presidents Barack Obama and Bill Clinton, senior advisor to Hillary Clinton's 2016 campaign, he was also Chief of Staff to two vice president, Al Gore and Joe Biden, and he's a contributing columnist at the "Washington Post".

Ron, from a political calculus standpoint, was the president wise to do what he did?

RONALD KLAIN, CONTRIBUTING COLUMNIST, "WASHINGTON POST" AND SENIOR WHITE HOUSE AIDE TO PRESIDENTS BARACK OBAMA AND BILL CLINTON: Well, I don't think he was wise to do what he did, Michael, but I agree with your commentary. He threw his base a bone.

His base is 25 percent of the American public. It's a majority of Republicans, but a minority of the country.

As you said, he cited the Rustbelt and he cited Pennsylvania, Pittsburgh. It's going to be for Pittsburgh, not Paris. But in Pennsylvania, the birthplace of commercial oil production in the United States, today, more people work in renewables than work in coal, natural gas and other fossil fuels.

So, he is practicing a kind of politics to rally his core supporters, but he is making the wrong decision for the country. And even I think in the long run, the wrong decision politically.

SMERCONISH: He's earned worldwide rebuke on this. And I bring this issue up first because, well, Michael Bloomberg noted this weekend, a conversation with Frank Bruni, that he puts odds at 55 percent of Donald Trump being reelected in 2020 if he wishes to.

You wrote you don't want to underestimate Donald Trump. "It is dangerous to underestimate his survival skills." Explain.

KLAIN: Well, sure, Michael, he is a completely ineffective president, as you explained at the outset, but he is a very ruthless and effective politician. He beat a very tough field of Republicans, 17 of them, to become the Republican nominee. He was the host of a very successful television program for a decade. He knows how to communicate with people. He's got strong support in the base of the Republican Party. His supporters believe him more than they believe the news media, more than they believe science, more than they believe other kinds of sources, he sometimes is most effective when his back is against the wall and he's kind of down and has to dig it out.

[09:05:01] We saw that after the Access Hollywood tape in the campaign. People thought he was going to drop out when that came up. 20 days later, he was elected president of the United States. As a political figure, he is not to be underestimated.

SMERCONISH: There's something else that you wrote for the "Post" that I circled. You say Trump's diehard supporters are more devoted to Trump than they are to the rule of law. Might that be a notion that gets tested this week when former FBI Director Jim Comey testifies in front of the Senate Intel Committee?

KLAIN: Yes, I think, Michael, it will. Look, I think in some ways the people who are really on the chopping block this week, even more than Donald Trump, are the Republicans on that committee.

The Republicans on that committee all voted to confirm Jim Comey. Many of them know him personally. The White House is going to send them talking points that they're supposed to call Comey a liar. They're supposed to call him a nut job.

And I think the question will be, do the Republicans on that committee do the White House's bidding or do they stand up for Jim Comey's integrity.

And for the fact that even if he made some wrong decisions, I think he was wrong on how he handled the emails, I don't know anyone other than Donald Trump who has ever said that Jim Comey is a liar, and that's really going to be the question when he testifies about his conversations with Donald Trump in the Oval Office.

Are people going to believe him or the president? And what are the Republicans on that committee going to say about who they believe?

SMERCONISH: I'm going to deal later in the program with the legal aspects of executive privilege. I want to ask Ron Klain a political question. Is it in the president's political best interest to fire that shot across Comey's bow?

KLAIN: No, it's not. I think that people already are wondering whether or not he had obstructed justice by firing Jim Comey, by asking him not to go after Michael Flynn, by asking him for a loyalty test.

If President Trump tries to invoke executive privilege for conversations he has talked about on television, so privilege really wouldn't apply to a conversation he talked to Lester Holt about, if he tried to invoke privilege, that would be an act of desperation and would be seen as an act of desperation. And I don't think anyone is going to be impressed by that.

SMERCONISH: You were a close advisor to Secretary Clinton during the course of the campaign. She was back out in public this week. I want to run a clip and then ask Ron Klain about it. Roll the tape.

(BEGIN VIDEO CLIP)

HILLARY CLINTON, FORMER DEMOCRATIC PRESIDENTIAL CANDIDATE: The overriding issue that affected the election that I had any control over because I had no control over the Russians - too bad about that, but we'll talk about it, I hope - was the way that the use of my email account was turned into the biggest scandal since Lord knows when.

In the book, I'm just using everything that anybody else said about it besides me to basically say this was the biggest nothing-burger ever.

(END VIDEO CLIP)

SMERCONISH: Ron, I want to ask you about that quote nothing-burger. No private email server, no investigation. No investigation, no Jim Comey standing up and delivering a rebuke to her in the summer before the general election nor the October 28 notification to Congress.

Isn't she the architect of her own demise? And shouldn't she be saying that politically speaking?

KLAIN: Well, Michael, she has certainly admitted it was a mistake. She's taken responsibility for that. She apologized for it during the campaign.

I think her point is that that mistake, that error in judgment that had her use her private email server was blown vastly out of proportion by her political opponents, by the news media to make it seem like a gigantic wrongdoing, which it wasn't.

So, I think she's apologized for her mistake. She's taken responsibility for it. And certainly, it had political consequences. Indeed, that's what she was talking about there, was it had great political consequences.

But I think as we look back on this, we look back on things like Donald Trump taking us out of Paris, all the craziness and wrongdoing we've seen in the early days of the Trump administration, you have to weigh the mistake she made in having a private email account against all the things Donald Trump did before he became president and all of the things he's done since he's become president and ask ourselves if, as a country, we made the right choice in 2016. Obviously, I don't think we did.

SMERCONISH: A final question for Ron Klain. You were chief of staff to Vice President Joe Biden. He, this week, just began a new PAC. Is there any prospect that he runs in 2020?

KLAIN: Well, first of all, I think that it was that he started this political committee because he is the most in demand Democrat in 2018. People want to see him on the stump campaigning for Democrats around the country and the political action committee will let him do that.

As for 2020, Michael, what he has said is that he is not closing any doors. He doesn't think he's going to run. He's not planning on running, but he's not ruling anything out. And I think that's where he should be.

He is a great leader in our party. He's a great spokesperson. He's one of the Democrats who can speak to some of those Trump voters and maybe bring them back home to the Democratic Party. We need him out there. We need his voice. And I'm really excited that he's got this new effort to try to make that more possible.

SMERCONISH: OK. You're not closing the door. That's the takeaway, right?

KLAIN: No, the door is definitely not closed. I think it's unlikely, but the door is definitely not closed and it shouldn't be closed. I think he should definitely be on the table as a candidate for 2020.

[09:10:10] SMERCONISH: Ron Klain, thanks so much for being here.

KLAIN: Thanks for having me, Michael.

SMERCONISH: What are your thoughts? Tweet me @smerconish or hit my Facebook page and I'll read some responses live during the course of the program. This comes from Facebook.

Overhype about climate change. We need to take care of American taxpayers. OK, William Lancaster, and what about the grandchildren and great-grandchildren of those American taxpayers? What do we owe them?

Up ahead, Vladimir Putin has just suggested that the alleged Russian meddling into the US election may have been an inside job. Richard Clarke, the counterterrorism chief who warned the Bush administration about an Al Qaeda attack, is here on the perfect day.

(COMMERCIAL BREAK)

[09:15:09] SMERCONISH: Russian President Vladimir Putin continues to dominate our news cycle. This week, he changed his tune on the meddling in the US presidential election. Previously, he denied it occurred. Now, he's just denying the state had anything to do with it, suggesting it was "patriotically-minded private Russian hackers."

And according to Yahoo!'s Michael Isikoff, the Trump administration immediately sought to normalize relations with Russia and ease sanctions imposed by President Obama.

Meanwhile, questions persist about Trump's son-in-law Jared Kushner's meetings with a Russian banker and that alleged request for an unmonitored line to the Kremlin, where's all this headed?

Joining me now, the perfect man to ask, Richard Clarke, former national coordinator for security and counterterrorism under both Presidents Bush and President Bill Clinton. He famously warned the Bush administration about an Al Qaeda attack before 9/11. He's the author of a number of incredible books, most recently, this one, Warnings: Finding Cassandras to Stop Catastrophes.

Mr. Clarke, Vladimir Putin has just given an interview where he raises the idea of this all perhaps being - in fact, let's put it up on the screen, a false flag, where he said, hackers can be anywhere, they can be in Russia, in Asia, even in Latin America. There can even be hackers, by the way, in the United States and so on and so forth.

I think he's insinuating that perhaps the whole meddling notion was a CIA scheme. Your thoughts.

RICHARD CLARKE, FORMER NATIONAL COORDINATOR FOR SECURITY, INFRASTRUCTURE PROTECTION AND COUNTER-TERRORISM: Well, he said this week that whatever happened could have happened by Russians, but if there were Russians involved, they were just patriotic citizens doing their own hacking.

That's what he said in 2008 when his army invaded Georgia, the country, not the state, and as his army was invading, as the tanks were rolling across the border, there were hacks on all the Georgian control sites. And he said, oh, that was just patriotic Russians.

The year before that, he said, oh, patriotic Russians took down all of the government facilities in Estonia.

We know in both cases it was the FSB and the GRU, Russian intelligence units. So, if he's saying the same people, the same patriotic Russians who did those things in '07 and '08 did these hacks, then he's admitting that Russian intelligence did it.

SMERCONISH: In December, allegedly, reportedly Jared Kushner and Michael Flynn are in a room at Trump Tower, they are there with the Russian ambassador to the United States, Sergey Kislyak, and the conversation revolves around setting up a backchannel communication to the Kremlin.

First of all, how extraordinary would that be? And secondly, react to the idea that maybe Jared Kushner was a neophyte, governmentally speaking, but Michael Flynn had been around the block.

CLARKE: So, every ministration has a back channel. You have to be careful about the phrase, back channel. What this was, according to the "Washington Post" report, was not just a back channel, it was an espionage channel.

According to the "Washington Post" report, which hasn't been verified yet, what he was asking for was spy gear. This report says, Kushner was asking for Russian espionage gear, secret communications gear, so that no one in the United States, including our own national security agency, could know what he was saying.

Well, that's a quite different thing than a diplomatic back channel that reeks of espionage and may even be illegal. And if Michael Flynn were, in fact, there - and again, we only have that report - he certainly knew what he was doing. He had spent his career in the intelligence community. He ran an intelligence agency. There is no excuse for him to not know where espionage starts and diplomacy ends.

SMERCONISH: If the report is true, it also evidences a monumental distrust between an incoming administration at the highest level and the intelligence community where you've labored for three decades.

CLARKE: Well, it suggests they were trying to do something illegal. The only reason to distrust or want to hide something from the intelligence community is your fear that the intelligence community will see something which is illegal.

In that case, they're required, if they see an American breaking the law, to report that to the FBI. So, there may be a charitable explanation for all of this, but I've tried and I really can't come up with one.

SMERCONISH: Does it strike you as being beyond the realm of reasonable that Flynn and Kushner would've been freelancing?

CLARKE: The Donald Trump administration that we have seen so far is one in which he directs the activities. He is not some remote Ronald Reagan, 50,000 feet above his lieutenants who are actually running things. He's the one who's making the decisions.

[09:20:07] I can't imagine that the son-in-law would feel free to freelance without Trump knowing what he was doing.

SMERCONISH: The lead editorial of "The Times" today quotes Michael Hayden as referring to all of this as what manner of ignorance, chaos, hubris, suspicion, contempt would you have to have to think that doing this was good or appropriate. I know he said that because he said it to me right here last Saturday. Do you agree with Gen. Hayden's characterization?

CLARKE: Gen. Hayden has been spot on on commenting on all of this from the beginning.

The real question here, Michael, is if this isn't ignorance, and it certainly doesn't look like just ignorance, why are they doing it? Why is there a Russian under every rock? Why is there a Russian involved in everything that this administration has done and everything involved in the campaign?

And by the way, it wasn't just hacking that the Russians did. The Russians set up tens of thousands of false Facebook accounts and Twitter accounts to amplify and manipulate and micro-target the news that voters got and do a psychological warfare campaign over the course of a year. That's not just hacking. That's a sophisticated new day, new era intelligence operation.

Why were they doing that? And why was Trump doing things that were pro-Russian? Why is he still doing things that are pro-Russian? It begs the question, what's the quid pro quo? Who was getting what out of this. SMERCONISH: And final question on a different subject, your brand-new

book, Warnings: Finding Cassandras to Stop Catastrophes, which I have read and found engrossing, I'd be derelict in my duty if I didn't note there's a chapter in the book, a whole chapter about climate change and James Hansen. And you tell his story. Give me the Cliff's note version on that chapter.

CLARKE: The EPA administrator yesterday said, one of the reasons he thought we could get rid of the Paris agreement was James Hansen said he didn't like it. That's right.

James Hansen, the great expert on this, said he didn't like it because it wasn't tough enough. Hansen is an outlier on his view about sea level rise. And that's what we look at in the book, is outliers, people who see things before other people do. Experts who warn us and are ignored.

Hansen says we're going to have 6 to 9-meter sea level rise in the life of our children and grandchildren.

SMERCONISH: Richard Clarke, thank you as always. Appreciate your being here and I enjoyed the book.

CLARKE: Thank you, Michael.

SMERCONISH: Continue to tweet me @smerconish or go to my Facebook page and post comments. Katherine, what have you got?

Smerconish, have you ever said anything positive about this president? Easy to expect negativity from fake news CNN.

Mois (ph), I absolutely complement him when it's justified, but I call it as I see it. And stick around till the end of the show because when I talk about Secretary Clinton's comments this week about the election, I'll hear it from the other side. But I'm not here to carry the ideological water of any end of the political spectrum, but I do appreciate your watching.

Still to come, ousted FBI Director James Comey scheduled to testify to the Senate Intel Committee this week, but can President Trump use executive privilege to prevent it from happening?

Also, when golfer Tiger Woods was stopped for a DUI, it was front page news, but should he have cooperated with law enforcement?

(COMMERCIAL BREAK)

[09:27:45] SMERCONISH: It's been called the most anticipated political moment since election day. On Thursday, former FBI Director James Comey testifies before the Senate Intel Committee about the stunning accusations that President Trump pressured him to end his investigation into his former national security advisor Michael Flynn's ties to Russia.

But can President Trump invoke executive privilege about their encounters to prevent Comey from testifying? Presidential advisor Kellyanne Conway kept us guessing in this interview with ABC's George Stephanopoulos.

(BEGIN VIDEO CLIP)

GEORGE STEPHANOPOULOS, ABC NEWS: Will the president invoke executive privilege or does he want former director Comey to testify before Congress?

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: Well, we'll be watching with the rest of the world when Director Comey testifies -

STEPHANOPOULOS: So, the president is not going to invoke executive privilege?

CONWAY: (inaudible) classified. The president will make that decision.

(END VIDEO CLIP)

SMERCONISH: Joining me now, Ted Ruger, the Dean of the University of Pennsylvania Law School and a constitutional law expert. Dean Ruger, take me back to Penn Law. What his executive privilege and why do we have it?

TED RUGER, DEAN OF THE UNIVERSITY OF PENNSYLVANIA LAW SCHOOL: Well, executive privilege is a legal relative of things like doctor-patient privilege or lawyer-client privilege. And the idea is the same, is that certain kinds of relationships are so important and the communication that people have in those relationships is so important and we want it to flow as freely as possible, so we're going to give it a special kind of cone of confidentiality or privacy.

So, when the president asserts executive privilege, there's a special constitutional dimension to it. The present as chief executive is tasked with executing our laws and the claim would go.

And President Trump is the next in a long line of presidents to make this kind of claim that the job of the president is so difficult, so complex that the discussions in the White House need to be so open and free flowing without the worry of interference and the fact of something coming out later in response to congressional testimony or judicial process.

Now, the problem, of course -

SMERCONISH: There's a question -

RUGER: These are very valid -

SMERCONISH: I was going to say, Dean, there's a question as to whether it has been waived in this case. Let me roll just a snippet of an interview that the president gave and then I'll ask you the legal significance. Play it.

(BEGIN VIDEO CLIP)

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES: We had a very nice dinner. And at that time, he told me you are not under investigation, which I knew anyway.

Then during the phone call, he said it. And then during another phone call, he said it. So, he said once at dinner and then he said it twice during phone calls.

[09:30:05] UNIDENTIFIED MALE: And did you ask am I under investigation?

TRUMP: I actually asked him, yes. I said if it's possible, will you let me know, am I under investigation, and he said you're not investigation.

(END VIDEO CLIP)

SMERCONISH: Dean Ruger, of what significance is that interview?

RUGER: I think that's highly significant along with, of course, the letter that President Trump sent firing Comey where he alluded - he stated that he wasn't under investigation along with the tweets that have come out about that conversation.

Remember, the key point about executive privilege is it is to keep secret things secret. And so, there is a doctrine that it can be waived if enough information is already out there.

And indeed, that was just applied by a federal district court last year against President Obama's claim of executive privilege in the failed ATF Fast and Furious investigation. Because information was out there, the judge said President Obama couldn't assert it.

SMERCONISH: You referenced other presidents having asserted it. I think in the minds of the public, at least those who are familiar with executive privilege, we tend to associate this with Richard Nixon, but explain when in the past has it been invoked.

RUGER: Well, we associate it with Nixon because his administration was the first to robustly assert it by name and the Supreme Court in that era was the first to actually recognize that this was a real legal thing that existed.

But every president since Nixon has made claims of executive privilege. It happened often in the Clinton administration, under both Bushes and President Obama, as I alluded to, has made similar claims as well.

So, this is an institutional claim that every president since Nixon has made. It is not a partisan thing.

SMERCONISH: Of course, there's also the court of public opinion and the optics of a president asserting this. In this particular case, it might not bode well for the Trump White House.

RUGER: Oh, I think that's absolutely clear. That's always a risk. It's kind of like taking the Fifth Amendment in a criminal trial that's absolutely somebody's right, but that can sometimes lead to inferences. I think in the case of a politician, particularly President Trump who has made his brand on straight-talking and cleaning up the swamp, to invoke this, thus keeping stuff secret, I think would be a big political hit.

SMERCONISH: The final question. So, if President Trump invokes executive privilege, what happens? Does former FBI Director Comey necessarily have to follow that command?

RUGER: Well, I think what clearly happens is it slows things down and I would be stunned if he testified next Thursday. Comey, as a former official, there's no doctrine or law that says that he's going to be sanctioned or criminalized if he goes ahead and testifies even as against President Trump's claim.

But I think we know enough from Comey's behavior and his need to seen that he's complying with laws and procedures in other episodes over the past year that I think if the privilege is asserted, Comey won't go testify. He'll wait for either for Congress to push the issue and then perhaps ultimately for a federal court to rule on it.

And I do think the White House would lose this one at the end of the day if push comes to shove in a federal court, but it might delay things by weeks or months.

SMERCONISH: Ted Ruger, thanks so much for your explanation.

RUGER: Thank you.

SMERCONISH: Let's check in with my Facebook and Twitter accounts, as they say. Katherine, what have you got? Smerconish, why does Russia have such control over CNN? That's all you guys talk about. Time to move on.

Brian, it's the story of our time potentially. I've rendered no opinion, no judgment in my mind as to whether there was collusion, neither whether there was obstruction of justice. But I'd be remiss if I didn't give this story the level of attention that I think it deserves. I think it is of preeminence over everything else that's going on around us. That's my opinion and that's why I talk about it.

One more if we've got time. Go ahead. It comes down to, do we trust US intelligence or Putin? I'm with US intelligence 120 percent.

That's the point I was trying to make to Richard Clarke. I think that the serious issue here is the level of distrust that exists between the White House and the intelligence community and it makes me worried as to where we might be vulnerable.

In other words, if the intel community is ringing an alarm, is this White House going to necessarily pay attention to it. That's something that should worry all of us.

Still to come, why is it never - why is it never the case that when Hillary Clinton seemingly is taking responsibility for her loss, she doesn't point a finger in her own direction? I'm going to tell you about a poster my father used to have on his office wall that she might want to take to heart.

[09:35:01] SMERCONISH: And the world saw golfer Tiger Woods on this police dash cam video of his DUI arrest, but did the encounter have to end up the way that did. Two prominent defense attorneys, they disagree on that question.

(COMMERCIAL BREAK)

SMERCONISH: On Memorial Day, police in Jupiter, Florida found famed golfer Tiger Woods asleep at the wheel of his parked car and arrested him on suspicion of driving under the influence.

A few days later, this police dash cam video showed Woods stumbling through sobriety tests and confused about officers' commands before being led away in handcuffs.

Woods told officers that he did not drink, but takes several prescription medications and the breathalyzer tests that he took showed no alcohol in his blood.

Considering this and the fact that he wasn't even driving, was he wrong to cooperate with the authorities.

Joining me now, two defense attorneys that you now, CNN legalist analysts, who differ on the question. Mark O'Mara and Danny Cevallos.

[09:40:02] Guys, we have to sort this out because, in my wallet, I have O'Mara's phone number in case I get jammed up in Florida and then I've got Cevallos in case it's Pennsylvania or New York. And I think you disagree.

Danny, did he cooperate too much?

DANNY CEVALLOS, CNN LEGAL ANALYST: In a way. Any DUI defendant has to consider what outcome they want to see. And in Tiger Woods' case, he probably doesn't care about a license suspension, he doesn't care as much about a conviction. He's got to worry about his brand.

And even if he refuses to conduct field sobriety tests and he refuses the breath test and he refuses the urine test, he will be automatically suspended for one year in Florida.

Balance that against the reading of an often-unreliable urine test for drugs and consider what that would do to his brand, perhaps Tiger would have been better off had he refused all testing. And Mark O'Mara will not disagree with me that he does not need to submit to field sobriety testing, which is fraught with peril, as is urine testing.

SMERCONISH: Mark O'Mara, if he had been able to call you miraculously before the police arrived, what would have been your counsel?

MARK O'MARA, CNN LEGL ANALYST: I would have told him as Danny would have, do not take the field sobriety test. And the simple reason is there is no penalty for failure to take the field sobriety test, the finger to nose and heel-to-toe. And the reason why is because they are designed to fail, they are designed to show impairment. So, don't take the field sobriety test to anyone out there.

However, in this particular case - and Danny is right, you've got to look at the brand he's trying to protect - there's no question Tiger was getting arrested for DUI. He was obviously impaired. He was driving the car. You don't have to be driving down the road. You don't have to be in, what we call, actual physical control. Keys in hand, keys in ignition, car on, good enough for DUI.

But the real question is, should he have taken the breath test. We know that's an easy answer. Yes. He knew he had no alcohol in the system. Breath test only determines alcohol. Easy solution, take the test.

The real question is, do you take the urine analysis. A little bit more complicated, but I disagree with Danny and here's why. He knew he was on the prescription drugs. Telling them, through his urine analysis, that those are the only drugs he was on was good and he also doesn't suffer the suspension of his license.

While you right, he probably could have a driver. Didn't happen on that night. But the reality is, it is still a sanction in Florida. And should he ever have a second DUI arrest, a second refusal is a criminal offense. You don't set yourself up for it.

And in the court of public opinion, he gets to tell everybody mea culpa, I'm really sorry, I was on only prescribed medications, I had no idea what they would do to me and I have cooperated fully. And that full cooperation is what's going to save his brand.

SMERCONISH: Hey, Danny. I want you to respond to Mark and also to explain to the audience because I bet many associate DUI only with booze and probably are surprised that you could have no alcohol in your system and still run afoul of a DUI standard.

CEVALLOS: I cannot tell you how many times this week people said, hey, Tiger didn't really have a DUI because he was on prescription drugs and a doctor essentially gave him permission.

Let me disabuse you of that misconception. You can absolutely get a DUI for prescription medication. In fact, I would wager that the majority of DUIDs, or driving under the influence of drug cases, are prescription opiate cases in our modern day where almost everybody appears to be on opiates in one form or another. And that's what I think this case will show here.

When you think about what Tiger - the decision Tiger had to make in consenting to the urine test, those tests will only show the presence of the drug in the system, the metabolites. And if you have drug use for a therapeutic reason, it may still show up even if he didn't take Vicodin, even if he took it the day before or that morning.

Now, the reality is, you look at the video and it's very likely that he would be convicted of impairment just based on observations. And that's why the law works. Even if you refuse all testing, an officer can still testify as to your impairment as a DRE, a drug recognition expert. It's like they magically put on their expert hats to testify against you.

So, the law works even if he had refused. But consider this, in the coming weeks, we will get a test back and that will show, the urine test, the presence of these metabolites and Tiger will be left arguing whether or not he took those drugs that day, hours before or the week before.

Whereas had he refused, he could simply create some narrative of, look, too much Mountain Dew and some Robitussin and, gee, mea culpa. That way, he might have safeguarded his brand just a little more.

SMERCONISH: Mark, reply to Danny. And tell me, this is your state, where is this going in the big picture?

[09:45:00] O'MARA: Well, first of all, I understand what Danny is saying. However, the Robitussin argument, the mea culpa would not have worked. We all would have known how artificial and fake that would have been.

Now, we can argue with the reality of what he was on. So, there's that.

What's going to happen with this case. First offense, DUI. Had he refused, he probably would not have available to him what we had and what Palm Beach County has, which is a DUI diversion program.

So, if you're guilty of a DUI, the diversion program is a wonderful alternative to going through the court system. It literally diverts you out of the criminal justice system. You do most of what you would have to do for regular DUI - the school, the 50 hours community service, pay a fine, stay alcohol free for a while.

But then the charges get dropped. So, that's available to him primarily because he didn't refuse and also because the circumstances are not aggravating. So, there's that.

But I'll tell you, there may be a better solution. Because he was so cooperative and because he was only on prescription medications, he may very well have an opportunity to work out an even better program with the prosecutor, what we call, a deferred prosecution program.

Do some work up front, do some PSAs, for example. Tiger Woods still has a name out there. Do some PSAs for the horrible abuse of opioids and how easy it is to abuse them. He didn't do it on purpose, but yet he was DUI. And he can make this a positive result for himself, more importantly, for the rest of us who have to learn how not to be DUI on prescription drugs and it could all have a much more positive ending for him.

Criminally, he's already got a great resolution for his drivers' license because he's not automatically going to lose it because of a refusal. And again, he's going to walk out of here with the brand much better intact than if he tries an argument of, you can't prove it, so go ahead and try.

SMERCONISH: Danny, quickly, the Nick Nolte question, to smile or not to smile for the mug shot.

I've come around on this issue, Michael. I believe you should smile. I believe if you can do it if you're turning yourself in, put on a tie, put on a jacket, put on a big smile. That way, that picture will be forever associated with like a yearbook picture or something else and no one can really tell that you're that miserable about being arrested.

That's my take.

SMERCONISH: Mark and Danny, thank you for being here. Bye for now.

O'MARA: Bye for now.

CEVALLOS: Thanks, Michael.

SMERCONISH: Let's check in with Twitter and Facebook. What have we got, Katherine?

How can it be a mistake for Tiger Woods to cooperate with police? He couldn't even think at the time? Yes, you know what, HikerGal (ph), hindsight truly is 20/20, but those are two brilliant legal minds and to hear them break down the different components of it, I find fascinating, while I fully recognize that in the heat of that moment Tiger wasn't able to process what he should've been doing.

And by the way, I'm for Tiger. I've always been a fan of Tiger. And I hope he comes back.

One more, hit me with it. Smerconish, I am not a fan of Tiger Woods. Leave him alone. He has suffered. You're not a fan. You're not a fan, but he has suffered enough. Mike, I'm bringing it up, but I'm rooting for the guy. I went to the US Open just to shout out his name a couple of times and cheer him on two, three years ago. So, I'm waiting for the comeback.

Still to come. Why is it that every time Hillary Clinton seems to be taking some responsibility for her loss in the election, she ends up blaming somebody new?

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UNIDENTIFIED MALE: See, you don't understand. You don't understand, the Russians cloaked Wisconsin. So, she couldn't find it on a map to get there and campaign there.

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[09:52:42] CLINTON: I take responsibility for every decision I made, but that's not why I lost.

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SMERCONISH: That's what Hillary Clinton said on Wednesday. And she's right to cite other factors, some beyond her control, that led to her defeat. And her articulation of the timing between the emergence of the Access Hollywood tape and the release of John Podesta's email by WikiLeaks, I thought that was compelling on the subject of possible collusion.

But her claim that the coverage of her email server was a giant nothing-burger, that was mistaken. It was her use of a private email server that ultimately led to FBI Director Comey's July 2016 presser where he lambasted Clinton as extremely careless. And his notification to Congress ten days before the election that he was reopening the probe.

While the propriety of Comey's public statements and the reopening of the probe are the subject of continuing debate, I think this much is settled. If not for her decision to use a private email server, there'd been no investigation, no investigation, no finding of extremely careless, and no probe to reopen.

I told you before about that sign that hung in my father's office when he was a guidance counselor in junior high school, the one that said, kick the person responsible for your problems and you won't sit down for a week.

Still to come, your best and worst tweets. Like this one, stop Clinton bashing, we're sick of it, more votes than any male candidate in - is that Clinton bashing, Vanet (ph)? Is it Clinton - really? Is it Clinton bashing for me to say, wait a minute, if she hadn't gone the route of the private server, then Jim Comey would have had nothing to investigate. I don't think that's bashing. I think that's just calling it out.

Back in a sec.

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[09:58:34] SMERCONISH: Keep tweeting @smerconish and check out the video on my Facebook page, a little behind the scenes of what's gone on here.

What do we have, Katherine? Let's see. Smerconish, Tiger is still a black man in Florida. If he didn't cooperate, he could've been shot. Just keeping it real.

Listen, Tiger was a gentleman. And I think the Tiger has always comported himself as a gentleman. And I'm not trivializing anything, but did you notice he was wearing Nike even in that moment when he sure as heck didn't expect to be filmed. He must really love that brand and I don't blame him.

What else? Let me see. Smerconish, nothing screams I'm guilty as sin than invoking executive privilege to prevent Comey from testifying. Andy, but Dean Ruger from the Penn Law School pointed out, we associate executive privilege with Nixon because we all think of Watergate and his invocation of executive privilege.

But invoking executive privilege would also put Trump in the same category as Clinton and as Obama. So, there's been a lot of invoking of it, just not as notorious.

One more if we can. This was a campaign promise that he ran on and again kept his word. Thank you, President Trump. Well, that's the point that I made. He pleased the 46 percent who voted for him. But let's be honest, he hasn't given them too much of that long list of promises that he made.

Thanks for watching. We'll see you soon.