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Smerconish

President Trump's Condolences of Fallen Soldiers Questioned; Conspiracy Theories in Oliver Stone's Movie About the JFK Assassination and Actual Events; President Donald Trump's Decision to Make Sealed Documents Regarding the Kennedy Assassination Publically Available; Speculation About President Trump's Visit to North Korea; Brooke High School in WV is Accused of Displaying a Racist Sign During a Football Game Against Opponents Pittsburg Perry High School; New Jersey Senator Robert Menendez's Defense is Discussed With Attorney John Brownlee. Aired 9-10a ET

Aired October 21, 2017 - 09:00   ET

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

[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: I'm Mike Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. The President up and tweeting, "I hope the fake news media keeps talking about wacky Congresswoman Wilson in that she is a representative is killing the Democrat party." You're getting your wish Mr. President. So deep is America's political divide that we're now arguing over comforting Gold Star families. I have a solution, and it's not what you might expect. And the President also tweeted this answer to a question I was about to ask-subject to receipt of further information, I will be allowing, as President, the long blocked and classified JFK files to be opened. President Trump was the only remaining hurdle to this Thursday's legally required release of more than 3,000 classified documents from the Kennedy Assassination. What might they reveal?

Plus, with North Korea threatening war and the President heading to South Korea on November 7, is it too risky for him to follow protocol and visit the demilitarized zone? Also there's a senator on trial for bribery, Robert Menendez. But will a recent Supreme Court case make it impossible to successfully prosecute any Government officials for corruption?

And also this, another Trump football controversy, but it doesn't involve kneeling. Is this banner at a high school football game racist?

But first, I want to be heard on the controversy over Presidential notification of the passing of our finest. I have a different take. By now, you know the story. On October 4, four U.S. soldiers were killed in Niger. On Monday, October 16, the President was asked by CNN's Sara Murray, why haven't we heard anything from you so far about the soldiers that were killed in Niger and what do you have to say about that? The President responded that personal letters to the families were sent or that they were going out that night. The following day, the President called the widow of Sergeant La David T. Johnson and what exactly he said became the subject of debate. Representative Fredricka Wilson who was riding in the car with the

widow said that the President told her he knew what he signed up for but I guess it still hurt. Johnson's mother also took issue with the President's message. But President Trump flatly denied the account. He tweeted this, "Democrat Congresswoman totally fabricated what I said to the wife of a soldier who died in action and I have proof. Sad." On Thursday, Chief of Staff General John Kelly who lost his own son to warfare said there's no perfect way to make that phone call. And that he had advised President Trump against making them at all.

Well, on that issue, Kelly was right. Presidents should not, as a matter of course, always make such calls. It's impractical to think that they can think they can call of the families of those who make the ultimate sacrifice. Take a look at this grid. It's one of the many that were periodically produced by the bookings Institution during the Iraq and Afghanistan Wars. And it shows this: in May 2003, we lost 37 troops in Iraq. Two years in the same month, 80. Two years after that we lost 126 in one month, and then in May 2009, 25 more. How could President George W. Bush possibly call 126 Gold Star families or four or five per day for 31 days in that one month? And to call only some of them, would only invite disappointment from those who don't get that personal overture. The last thing we want to do is exacerbate their grieving.

A better approach is a personal letter from the President to each, a call from the local member of Congress and an invitation to periodic gatherings were Gold Star families are invited to the White House in groups. Maybe this will spare us the spectacle of what developed this week where the families of our very finest became political pawns. And if you watch this play out and you found yourself instinctively rooting for one side to "win" regardless of the facts, then ask yourself, if we, each of us, need to step back, take a deep breath and vow to analyze all things Trump on the merits and not on the politics. Our soldiers deserve that from us.

Now, do you remember this scene from the 1991 Oliver Stone movie, "JFK"?

(BEGIN VIDEO)

There are hundreds of documents that could help prove this conspiracy. Why are they being withheld or burned by the Government? All of these documents are yours. The people's property. You pay for it.

[09:05:00]

But because the Government considers you children who might be too disturbed or distressed to face this reality, or because you might possibly miss those involved you cannot see these documents for another 75 years.

(END VIDEO)

That scene is particularly relevant this week. The movie and the conspiracy speculation that it generated led to the 1992 law known as the JFK Assassination Records Collection Act which requires that more than 3,000 previously classified documents and parts of 30,000 others must be made public by the Law's 25th anniversary when is this Thursday, October 26. JFK's Assassination has haunted America generations and inspired endless conspiracy about whether other forces were responsible besides just the shooter Lee Harvey Oswald. The only person that could have prevented the release is Donald Trump and this morning he tweeted this, "Subject to the receipt of further information, I will be allowing, as President, the long-blocked and classified JFK files to be opened." Joining me now to discuss and what the papers could reveal, Gerald Posner who wrote the book on the assassination, "Case Closed" in which he concluded that Oswald did it and he acted alone.

Hey, Gerald, I should begin with this--pretty amazing that you wrote a best-seller on the Kennedy Assassination and came to the very non- sensationalist conclusion that the Warren Commission got it right.

GERALD POSNER, AUTHOR: You know, Michael, that's right, the conclusions is the same-- Oswald alone. But what I did as you know, 20 years ago in my book and what these files are doing and why they're important to come out is they fill in the history of the case and show us how the FBI and CIA repeatedly misled the Warren Commission, how they were hiding up things to cover their own bureaucratic behinds, and they gave the evidence of a conspiracy. It wasn't a conspiracy for murder as you just saw in that clip from Stone's "JFK," but a conspiracy of their own bureaucratic reputations. And that's what we're finding out in history and over the decades. The truth is Oswald killed the President but there was also a cover-up by the agencies to mislead the government to protect themselves.

SMERCONISH: What do you think we're going to learn in the 3,000 files?

POSNER: Well, you know, in these 3,000 files, when you say that its tens of thousands of pages of documents inside of them. They're files but then larger materials in between. They include everything from files about the Watergate burglar E. Howard Hunt. There's files about an attorney for Carlos Marcello, the Mob Boss who some thought involved in the assassination. There's a psychological profile of Lee Harvey Oswald by the CIA. But the biggest thing, JFK looking for and historians is where Oswald was only seven weeks before the assassination. He was trying to get back to Cuba. He went to the Soviet Mission twice and the Cuban mission and he was thrown out of all of them. What did the CIA learn about his visit there? Did he make a threat against Kennedy as some have reported over the years? That might be in the files. And that's one of the reasons people were afraid they might not be released is because sources are disclosing there were informants for the CIA in the Mexican Government. Some of them could be alive. But it looks as though with that tweet just a few minutes ago-my favorite tweet of the Trump Presidency that we might end up seeing the files.

SMERCONISH: Well listen and Kathryn if you have the ability, put that tweet back on the screen. There you go, let's parse this. Gerald, he does say subject to the receipt of further information. Is he hedging? POSNER: You're right. That's the lawyer in you, Michael. I'm a lawyer as you know by trade craft as well, so he is hedging a little bit. But what's happened here, as I understand it, "Washington Post" has a story today they quoted an unnamed Security Council member who said both the CIA and FBI came to the President and said some of these files can't be released. There's still information in here. The only way he can withhold them under the law is he'd have to show an identifiable quote identifiable harm to either intelligence, law enforcement, military defense, or foreign relations. So again that question in the end about possible embarrassment about people that could be in the Mexican Government or former Mexican officials who actually spied for the CIA. Now, they appealed to him. If he doesn't find that harm outweighs the public disclosure then he's going to release those files. I think that tweet is putting the CIA and FBI on notice saying I'm going to set these files free by October 26 unless you can make a stronger case to me that some of them need to be withhold. They haven't made it yet.

SMERCONISH: You know, maybe ironically, if it happens Thursday, the person that we owe a deal of gratitude to is Oliver Stone who floated all of these conspiracy theories to begin with.

POSNER: It's so interesting, I always say about the only thing Stone got right in that film, has a great filmmaker, a terrible historian, is the date that Kennedy was killed. He's the true empty barrel in the Kennedy Assassination.

[09:10:00]

But it is the result of that film going so far out on the conspiracy fringe that Congress reacted with this law and then started to open up the files. The files should have been released decades earlier. Warren Commission made a terrible error by holding on to this material. Five million pages almost have been released about this case; most of them since the Stone film. Guess what, all of the people thought there would be something in there to show a conspiracy, Michael, they never came out. And the last batch of files, the hundreds of thousands of pages, the final documents, I'll tell you today on this show, there's no smoking gun in there. There's nothing about a second shooter on a grassy knoll; there's nothing that's going to establish a conspiracy. It's going to fill in our understanding and history of the case, but anybody who thinks it's going to turn the case on its head and show that there are three or four shooters at the Dealey Plaza, it's not the case.

SMERCONISH: You have said to me previously on my Sirius XM radio program, that the truth about the Kennedy assassination is that the CIA and Mob did indeed come together to kill a head of state but it wasn't President Kennedy.

POSNER: You know, it's one of my favorite things you have this popular conspiracy theory. At the moment it's that the CIA and Mob together killed Kennedy. And it is true that the CIA and Mob were in league as you just said to kill a head of state. It wasn't Kennedy. It was Castro. They tried seven different times; they couldn't even wound him. Somehow, we believe that the very same Keystone Kops, who couldn't kill someone they really wanted out of power. The Mob wanted their casinos back in Cuba. The CIA wanted a Communist dictatorship, 90 miles away from United States the shoreline out of this hemisphere. They couldn't get rid of Castro, but somehow, these same guys who are inept there pulled off the perfect crime in Dallas and 54 years later, we cannot find a shred of evidence about it, I just don't buy it.

SMERCONISH: Final question for Gerald Posner the author of "Case Closed." The Kennedy family members, the remaining Kennedy family members do they care, at this point, about the release of this information?

POSNER: I think, that they for a long time would prefer that this information is public. Because they know eventually it will be. They need to get it out. They'd like to have this chapter of history and controversy finally closed and maybe this will do that for them.

SMERCONISH: Gerald, nicely done. Thank you for being here.

POSNER: Thank you, Michael for having me.

SMERCONISH: What are your thoughts, tweet me @Smerconish. I will read some during the course of the program. Here's one tweet that just came in and it says this, "Glad you will address this. I want the Roswell File opened." Maureen, I think that the big take away from Gerald Posner and from this issue is that Oliver Stone floated what I believe to be wild conspiracy theories. And he did wrong, my good friend, United States Senator Arlen Specter in the process. And yet it's because of him that now you're going to see it all. Because Congress' response was to say we can't have all of these theories. In 25 more years it all comes out and now, to President Trump's credit, apparently that will be the case.

Well, President Trump is about to head to South Korea, the question is this-has his war of words with Kim Jong-Un made a visit to the DMZ too risky? Plus, take a look. Is this high school football banner racist? That's how the visiting team took it and I'll explain.

(COMMERCIAL BREAK)

[09:15:00]

SMERCONISH: North Korea is threatening the U.S. again. This week officials warned of an "unimaginable strike against America" that could "a nuclear war could break out at any moment." President Trump is heading to South Korea on November 7 as part of his Asian trip. Should he go to the demilitarized zone along the North Korean border? All but one President since Ronald Regan has toured the heavily- guarded Zone that has separated the North and South for 64 years. But in Trump's case, given all of the firey exchanges between him and Kim Jon-Un, should he hazard a trip to the DMZ? Blaine Harden was a correspondent in the region for "The Washing Post" and "The New York Times" for three decades. He's

written three books about North Korea. His latest is this: "King of Spies: The Dark Reign of American's Spymaster in Korea" is currently a reporter for Frontline. Blaine, should he go to the DMZ? BLAINE HARDEN, JOURNALIST AND AUTHOR: I think to avoid a chance of

bumbling into war, it would be better that he did not go and if he does go, he should be tightly scripted. There's a problem with President Trump when he talks about North Korea, he makes threats that are stabilizing for the region. Since the whole idea of the President visit is to try to find a diplomatic solution, it probably would be best not to risk something that would make the situation worse.

SMERCONISH: You have used the word rational to describe Kim Jong-Un. Defend that term as it applies to him.

HARDEN: I think if you look at the record of North Korea over the past 65 years, is that they are in the business of preserving their family business which is the totalitarian state. They threaten their neighbors. They've done it for decades with artillery and now they're beginning to threaten their more distant neighbors like the United States with ballistic missiles and nukes. But it seems to be the same game which is to preserve their power inside this relatively small country with a small population. And if you look at North Korea that way, as sort of a family business that's trying to protect its interest in the long term and look at its track record, that seems to be where the percentages are. And trying to control this regime rather than to go to war with it makes more sense.

SMERCONISH: Well, what does he want? What does Kim Jong-Un really want?

HARDEN: I think if you look at the family as a whole. His grandfather created the palace in the late 1940's. And he ruled

[09:20:00]

for nearly 50 years and died of natural causes. His father ruled for 20 some years and died of natural causes. I think that that's what Kim Jong-Un wants. He wants to be in power, running this state, throughout his life, without interference from the outside. That seems to be the conclusion that one can make, just looking at the history of the place. They have not gone to war but once, and that was in 1950. And it turned out very, very badly for North Korea. The country was essentially eliminated. And Kim Il-Sung, the great leader, spent much of that war in a bunker and was bailed out by the Chinese. Now the Chinese are much less willing to bail out North Korea. North Korea is bad for China's business which is basically to sell the United States and Europe material goods. So it's a much more risky proposition, to go to war against the West, and it didn't work out well the first time. It seems unlikely they'd want to do it again.

SMERCONISH: Are you suggesting we should be dismissive, not take seriously, not take at face value, these provocative statements that Kim Jong-Un continues to make including that which I used to begin this conversation?

HARDEN: No, I'm not suggesting that at all. I'm saying that we must prepare for the possibility of war. We must beef up spying. But at the same time, every effort should be made to try to find diplomatic connections at all levels, publically and privately. Try to bring an end to the Korean War. Try to establish diplomatic relations. Try to trade maybe some military exercises in the region, to reduce those exercises in change for some freeze of development of nukes and ballistic missiles. To work on all of those things at the same time, but to avoid early morning threats that tend to do nothing but make everybody tense.

SMERCONISH: The President is treating Kim Jong-Un in some respects as if he's an opponent and we're back in the Iowa Caucus of the New Hampshire Primary with the moniker "Lying Ted" and "Little Marco" and "Crooked Hillary" and now it's Little Rocket Man. Do you think this has a positive or negative impact on Un and in this situation-on Kim I should say?

HARDEN: I don't see how it could possibly help anybody to make threats like that. You know, other than Presidents haven't done it for good reason.

SMERCONISH: But I guess to the President's defense, I would say, and what those other predecessors of his have done hasn't worked because North Korea has continued to march on a nuclear path. And maybe he's trying to outcrazy him, you know? He's trying to-as between the two of them to appear to be the more irrational?

HARDEN: Well, you know, that's possible. But it just seems that trying to outcrazy somebody is not a good way to run a country when you're the most powerful country in the world. You should try to talk to people. You should try to have strength and then also project rationality and an openness to diplomatic solutions. Undermining one's Secretary of State with tweets is just not something that's happened before in the United States. It doesn't seem like a productive approach to solving an incredibly difficult problem. There are no easy solutions with North Korea. But threats, just make it worse.

SMERCONISH: Blaine Harden, thank you so much for your expertise, we appreciate it.

HARDEN: You're welcome.

SMERCONISH: Keep the tweets coming and the comments on my Facebook page as well. What has just come in, here we go. Absolutely as past Presidents have visited the DMZ, so should Trump as Commander in Chief, it is his duty. William, it might be perceived as his duty, but you have to wonder if it's going to be a match on a powder keg. I can't remember in the modern era, the level of scrutiny and the heightened circumstances that will surround a November 7 visit of President Trump to that particular locale.

One more if we've got time for it. Smerconish, Trump should go to North Korea boundary and while there challenge Kim to a duel, mano a mano, leave armies out of it. Arizona Sage, don't go giving him any ideas.

Still ahead, what could possibly be wrong with a banner at a high school football game that just urges the defeat of the other team? Well, when the other team is called Perry and the banner looks like this. We'll talk about the fallout in a West Virginia community when we come back.

(COMMERCIAL BREAK)

[09:25:00]

SMERCONISH: A Friday night high school football game in West Virginia turned into the latest battleground in the polarization over President Trump. Brook High School was celebrating patriotism week and it's football team was going to play a Pennsylvania team from Pittsburgh, Perry High School. So some Brook students created what they thought was a cleaver banner in red, white, and blue. Here's what it said, Trump Perry. A pun, get it, meaning beat Perry in the form of a campaign sign.

Unfortunately, perhaps what they didn't factor in, the student body of Perry,

[09:30:08]

The Perry Liberian saw the sign Tweeted a photo of the banner and called it sickening racism. Brooke's Superintendent responded with a letter apologizing, and calling the banner insensitive, intimidating and offensive adding quote "Policies were not followed by the school administrators to ensure a climate free from bullying and harassment."

This has some Brooke County parents calling for the superintendent's resignation. At a board meeting last week protestors lined up outside the District Administration building calling for the superintendent's firing, saying she's labeling her own students as racists.

The meeting was full of passion.

(BEGIN VIDEO CLIP)

CHRIS BYERS, CONCERNED CITIZEN: You say that it wasn't intentional, that I'm not sure where the environment of harassment or bullying by their -- by your definition not mine was created.

DIEDRE CONNNER, COCHRANE, BROOKE HIGH SCHOOL ALUMNA: We don't have a lot of meaning, but right now in today's society it means to me as a black person division, separation, hatred, the Perry parents were so distant, they were just so jacked up I felt their pain.

CARLA DAVIS, CONCERNED CITIZEN: You can't tell me how to feel about their side.

(END VIDEO CLIP)

SMERCONISH: Is there any way out, joining me now the head of the student body at Brooke High School, Ashley Eby. Ashley, thank you so much for being here what was the message that was being conveyed in that banner?

ASHLEY EBY, STUDENT COUNCIL PRESIENT, BROOKE HIGH SCHOOL: So, before every football game, a group of students get together and they create a banner for the students section, and each week for every home game the student's section has a different theme which is determined prior to the beginning of the season.

And since the game against Pittsburgh Perry was the first home game after 9/11, the theme of that week was patriotism and red, white and blue. So, when the banner was created, we came up with the idea Trump Perry because trump is synonymous with beat and it also is the name of the President of the United States.

So, whenever the banner was being created there was no intention of offending any one but once we saw that you know people reacted the way they did. We understand that it could have been taken as offensive, and we apologize for that however, the student body wanted it to be known that that was not the intention of the students who made the sign; but we are sorry for it.

SMERCONISH: I'm sure that the Brooke players knew who they were about to compete against. Did the Brooke students know the racial composition of Perry? In other words, did they have any awareness of the fact that this was a school coming into town that was 75 percent black in contrast with the composition of your school, did that enter the equation, did that enter that enter the thinking as far as you know?

EBY: As far as know, it did not. I was aware that Pittsburgh Perry was part of the Pittsburgh Public School District, so I wasn't completely sure of the demographics.

However I -- I was under the impression that there were a higher concentration of black students at Perry than at Brooke. However, in Brooke High School, it didn't really even cross our mind because you know the students who made the sign did not have any racist intention.

So, whenever we found out that it was taken that way, we were kind of blown away and taken back because that's not what we meant, but as far as I know, no one was 100 percent sure of the exact demographics.

SMERCONISH: Right, so this -- so, this was your school relying on the definition of Trump meaning you know a winning card, a winning hand, beat Perry. Not to say, hey, Pittsburgh team, 75 percent black, you're now in Trump country?

EBY: Correct.

SMERCONISH: You're now in West Virginia, this is -- this is hostile turf, so to speak?

EBY: Yeah, we would have had the sign regardless of who we were playing because it didn't cross our mind that it would be taken that way. It was merely a play on words as in beat and the President of the United States given that it was a patriotic game.

SMERCONISH: OK, so the librarian for the other school catches wind of this the following day. She sends out that Tweet that I've already shown the audience where she regards it as sickening racism and then it takes on a whole life of it's own in social media as you know.

I found most interesting the fact that your school superintendent apologized and said, hey, it was insensitive, intimidating, offensive, and then used the word bullying to describe that sign.

Do you know whether students we're taken into account, consulted before the superintendent responded and put that word out?

EBY: Students were not consulted and that is the source of the outrage within our community, and within our school, within the apology there was absolutely no mention of our intent, and we did not have you know -- we did not have bad intentions.

[09:35:00]

We did not mean to send to a racial message. So whenever Mrs. Schute issued the apology you know calling it the sign insensitive and intimidating and saying it was a harassing environment, you know the students and the community were concerned because we know that was not the case.

We're very welcoming of Perry High School, there were no problems between the players or any you know there was no taunting by the student section and it was a good environment.

So yes, students were not taken into account what so ever, and as Student Council President in my several attempts to call Student Council meetings you know my requests were not met.

I asked that we could have some kind of open discussion to mitigate the tension because students were very upset, and the community was upset and no one took you know took my request so.

SMERCONISH: OK, so here's -- here's -- here's what I'm hearing from the -- the very poised I might say as a compliment to you.

EBY: Thank you.

SMERCONISH: The very poised President of the Brooke student body, we're sure as heck didn't mean it that way, we apologize if we offended you, and we're disappointed that our superintendent regarding this as bullying and went as far as she did in the apology?

EBY: Right. Yes, I ---

SMERCONISH: Any more signs that you're -- any more -- go ahead I'm sorry finish your thought.

EBY: No, I'm sorry go ahead -- I -- I just no go ahead.

SMERCONISH: I'm curious, because this was the first game post- September 11, it took place, I believe, on the 28th and you've played other football games since then for all I know you played last night. So, have the signs now been reigned in? I mean all of a sudden now do -- do -- do you have to put up a different kind of a message? EBY: Yeah, we've not posted any signs since then we were instructed if

we were to create a sign for any game it has to be cleared by administrators, but school spirit is pretty low at this point no one has gone together to create a sign so.

SMERCONISH: OK, well, that would be a bummer if the net effect of this would be that all of a sudden at Brooke nobody puts up a sign anymore. So go put up more signs, OK.

EBY: OK.

SMERCONISH: All right Ashley, thank you so much we really appreciate you being here.

EBY: Thank you, I appreciate it as well.

SMERCONISH: Let's check in on your Tweets and Facebook comments. What do we got Katherine. That's a wild story isn't it? "In poor taste, yes, racism, maybe optics, terrible."

Bobby, I want to be sensitive to those on the opposite side of the field, but I -- I just don't see it and particularly after listening to her explanation, I'm -- I'm willing to accept the innocence of the thought process that it was a play on words and Trump to them meant we've got a winning team, you know we're going to Trump Perry, but I know from my African American callers on Sirius XM that's not how many of them saw it.

Another one for we got time, "Smerconish I was prepared to say not racism until I read quotes from the students and how it had a double meaning honoring president." Paula, isn't it a bad outcome that now I mean -- mean because of -- of the heightened scrutiny and polarization that these kids are not even putting up signs anymore? I think it's -- it's a step in the wrong direction.

One more and then we'll move on. "Smerconish, as a teacher of teens they are absolutely capable of understanding the power of their words. It wasn't meant to be a joke." Really, Melissa, how -- how do you know that? I mean I accept the way that Ashley just presented it, but I recognize there's a dispute and the people are interpreting even that sign. It's like a Rorschach test in the time that we live.

OK, this is important up ahead a sitting U.S. Senator is on trial for Federal corruption, its Bob Menendez but will the recent Supreme Court decision help Senator Menendez escape conviction? I'll explain.

(COMMERCIAL BREAK)

[09:40:00]

SMERCONISH: A sitting U.S. Senator is currently facing Federal corruption charges that's a pretty big deal, even in this news cycle, but what's even more fascinating in the bribery case against New Jersey Senator Robert Menendez is that a controversial Supreme Court decision last year makes it more difficult for prosecutors to prove. You may recall Virginia Governor Bob McDonnell had been found guilty

of accepting thousands of dollars in cash and gifts and was suppose to serve two years in prison, but the unanimous SCOTUS decision in McDonnell versus the U.S. last year vacated the conviction and changed the standard for bribery.

Will this help Menendez who is charged with taking money from an eye doctor in exchange for favors, joining me now one of the lawyers who successfully argued McDonnell's case to the Supreme Court, John Brownlee; he's the Chair of the White Collar Defense and Investigations Team for the law firm of Holland & Knight, LLP.

He is also a former U.S. Attorney for the Western District of Virginia. Counselor, I want to show you a head line from "THE ATLANTIC" pertaining to this case and ask you to answer the question that they pose. "Has the Supreme Court Legalized Public Corruption?"

JOHN BROWNLEE, DEFENSE ATTORNEY FOR FROMER VA GOR. BOB MCDONNELL: Well, first of all thank you Michael for having me today. I don't think so at all. I think what -- what really happened in McDonnell was that the Supreme Court, rather than redrawing lines as some had contended, what they really did is highlight the lines that had always been there.

There was a case in 1999 called Sun Diamond; it was an unanimous Supreme Court case that stood for the principal that -- that common political interaction between politicians, government officials and their donors was not criminal activity.

So you could set up a meeting or host an event or -- or show support for their product or whatever and not run afoul of the criminal bribery -- Federal briber statutes that have been -- that were used against Governor McDonnell and are used against Governor Menendez.

SMERCONISH: But hasn't the court given licensed to take bribes so long as it doesn't relate to a -- a Bill, an appointment or a contract. [09:45:00]

SMERCONISH: I mean what would stop me from collecting $10,000 increments if I were a public official, an elected public official, just for hosting individuals in my office?

BROWNLEE: Well, I think that what the Supreme Court said that was for this statute, for the Federal Bribery Statute under Title 18-201 that you -- the politicians or government officials must do or attempt to do, or promise to do what they call an official act, something the exercise of they call official governmental power.

And common interaction between politicians, government officials and donors simply don't rise to that level. I think the reverse of that is -- is as the court has said gets to be some sort of an absurd result.

If a -- if a-- let's say you supported a particular congressman for your congress person and you gave that person $500 as a campaign donation and later on, you wanted to go meet with that congressman or have that congressman set up a meeting for your -- let's say your son wanted to go to the Naval Academy.

Under their theory that could be a crime and so the Supreme Court I think rightfully so reminded everyone that this kind of common interaction simply didn't rise to the level of criminal activity, we're going to allow public officials to grant their -- their constituents access to government.

We're going to allow them to support certain things all in the -- in a democracy that requires politicians to raise funds, sometimes, an enormous amount of funds to run, and so, I think this was the right call. It was a smart decision. It was unanimous from -- from all sides of the Supreme Court came together and said we're not going to criminalize common routine politics in America.

SMERCONISH: So how -- how might the outcome, your successful outcome on behalf of the former Virginia Governor now play into the defense of Bob Menendez?

BROWNLEE: Sure, I -- I want to caveat that I haven't been in the courtroom, so I haven't had a chance to watch the testimony directly, but you know, I think that it's -- it's a different case in some ways in the sense the Governor -- I mean the Senator is really focused on the probe.

Why he did certain things for Dr. Melgen and they -- they contend I think their lawyers they've got some of the Abby Lowell's one of the best lawyers in the country, and I think what they are articulating or - or -- or pushing is the notion that he did certain or may have done certain things, those things are not a official act but the reason he did them is because they were truly friends.

They have a 20-year friendship and they are contending to the jury that it wasn't a corrupt relationship, it wasn't just for that that he was certainly helping his friend out and so that would not make it a corrupt relationship.

I think that's their defense, I think from my account Mr. Lowell and his team have done a very good job of trying to focus the jury on those issues kind of the pro and quo of the quid pro quo, and of course who knows what the jury will do, but from my sense that they've done a good job of that.

SMERCONISH: So this -- this is the great response that I'm hearing from John Brownlee who is now at Holland & Knight and in a very distinguish criminal practice, I'm wondering if the John Brownlee who had been the U.S. Attorney and I were speaking to him would have answered my questions the same way? How do you think you would have responded years ago?

BROWNLEE: You know when I was at the Justice Department I was there almost 11 years, I did a lot of public corruption cases as U.S. Attorney and we made it a point to follow the law.

I don't think I would ever have charged a public official for merely setting up a meeting or forwarding an email or saying kind things about a Virginia company. That's what they did in McDonnell that has never been a criminal act, it has never been prosecuted before in such a way, and I hope that had I been U.S. Attorney and this came that I wouldn't have allowed it to go forward.

Again, I think when the Supreme Court speaks in the way in which it did, unanimously, clearly, and now giving guidance to -- to public officials as to what they can and cannot do. I think it's important to note that -- that they made clear in that opinion that public officials can not exert or exert pressure on subordinates to do things or do official acts.

So if there's a contract or something out there that's a true exercise of governmental power, governors or politicians cannot exert pressure on subordinates or others to do these things, and that's real corruption.

That's the problem. That's at the root, the traditional bribery of -- of -- of contracts and other types of things that affect governmental power. I don't think anyone thinks it should be a crime, if a constituent, who may have been a donor, goes up to a Governor and says, you know can I meet with your Health and Human Services Secretary and tell them about my plan. I don't think anyone thinks that is setting up that meeting ---

SMERCONISH: Well.

BROWNLEE: --- should be a federal crime.

SMERCONISH: It might not be a Federal crime, but it me at least it's unseemly you know that I'm giving you Rolex or I'm paying for your putting your daughter's wedding or you're setting up in the case of Menendez a -- a meeting up with the Secretary of Health and Human Services, or I'm putting you up at a five star in Paris, if it's not illegal it's -- it's still something they should have better judgment than to engage in. Anyway I do appreciate your expertise, thank you so much for being here.

BROWNLEE: Thank you, thank you sir.

SMERCONISH: Still to come, your best and worst Tweets and Facebook comments right after this.

[09:50:00]

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SMERCONISH: Hey, if you ever miss any of the program, you can catch us at any time on CNNgo online, and through your connected devices and apps. Follow me on Twitter and hit my Facebook page.

Here's what's come in during the course of the program, let's see it. "Yes. The President should make that phone call for each and every soldier. He is the one placing them in harm's way."

[09:55:00] SMERCONISH: James Michal Varnes the point that I made at the on set of

the program is that there was that month I highlighted and I think there were some even greater where we lost a 26 soldiers in Iraq.

It's impractical to think that a president in a time of war can call them all, and the last thing I want to do is leave somebody off that list who doesn't get the call. So, no, I --I think that as a matter of course a president should not be expected to call gold star families, as controversial as that might be.

Happy to see that you posted a comment on Facebook because I'm locked out of my Facebook page and you know the Russians manipulated Facebook in the election and I'm the one suffering because Facebook now doesn't think I'm Michael Smerconish.

Hey, Facebook it's me. Let me back into my Facebook page. I'll see you next week.