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Smerconish

John Brownley Discusses General Flynn's Admission; Arthur Laffer Discusses the Laffer Curve; Smerconish and John Corvino Discuss the Rights of Bakeries That Refused to Bake Wedding Cakes for Same-Sex Couples; Mark O'Mara Weighs in on the Steinle Case Verdict; James Carville's 1992 Comments Were Compared to Modern Governmental Policies and Practices. Aired 9-10a ET

Aired December 02, 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 Michael Smerconish in Philadelphia. We welcome our viewers I the United States and around the world. Robert Mueller's investigation seems to be getting closer to the White House gates. Former National Security Adviser Michael Flynn pleads guilty to lying to the FBI about his communications with the Russian Ambassador and is cooperating with Mueller. He seems to be implicating Jared Kushner. So where is this headed?

And late last night, the big GOP tax cut finally ekes through but is it worth the trillion dollar plus debt price tag? I will ask the father of supply side economics, Dr. Arthur Laugher is here.

Plus, the undocumented homeless immigrant who had been deported five times found not guilty in the death of Kate Steinle. Many are understandably outraged, especially those on the right. But did the judicial system actually work and activist already waiting outside the Supreme Court of the United States for Tuesday's historic argument about the Case of the Evangelical baker who says he has a First Amendment right not to sell a wedding cake to a same-sex couple.

But first, with regard to Michael Flynn, I too, intend to read the tea leaves. We all want to know where this his headed. But first the facts, the former Trump National Security Advisor pled guilty Friday to lying to the FBI about conversations with Russia's ambassador and disclosed that he's cooperating with the special counsel's office. In a moment, I'll welcome someone who both prosecuted and defended individuals in similar circumstances.

But, let's start with what we know. We know that Michael Flynn pled guilty. We know that he did so pursuant to a written agreement. We know that he will cooperate and that he will get a sentencing break, so long as he fulfills his end of the bargain. And we know he pled guilty to the felony of falsehood which would make his credibility problematic in front of any jury that may evaluate his testimony. That's what we know.

Now, in the realm of my own legal analysis, here's some observations. It occurs to me that if they had something else on Flynn, they would probably have charged him with it because this former three-star general is now an admitted liar. And from the standpoint of his use as a future witness, he'd be better off having admitted to kidnapping than lying. A defense lawyer in the future will have a field day based on what Flynn has admitted to. So for if example, the Special Counsel Mueller had him on the Logan Act he probably would have charged on that. If Mueller had proof that Flynn conspired with the Trump campaign and Russians regarding meddling in the election, they would have said so. Again, pleading guilty to brokering a deal with Russia is much better than admitting he lied to the Government when it comes to his future use as a witness.

Joining me now is John Brownley. He is a former U.S. attorney. He served at the Justice Department for a decade. He now runs the white collar criminal defense for the Washington firm of Holland and Knight. And, you'll recall, he was Virginia Governor Bob McDonald's lead trial counsel, arguably the most important prosecution of a public servant recently; one that caused the Supreme Court to rewrite the law. Counselor, if they had him on more, would they have brought it?

JOHN BROWNLEY, FORMER UNITED STATES ATTORNEY AND JUSTICE DEPARTMENT OFFICIAL: Not necessarily. I think that in trying to evaluate plea negotiations for criminal defendants like General Flynn, a lot of what you see with regard to what he pleads guilty to is balanced against the type of information that he can provide. So, none of us know what he's saying. None of us know what he's going to tell the Special Counsel. But I don't believe that the nature of his offense which I agree is fairly-well, the type of sentence that he's going to get which is almost zero here is a great deal for him. But I'm not so sure you can interpret that as saying that he didn't commit other crimes or that necessarily that his cooperation is going to be not all that helpful.

SMERCONISH: So put your Holland and Knight hat on and not your hat as a former U.S. Attorney, you'd have a field day with someone who admitted to the felony of lying.

BROWNLEY: No, I think that's right. I think that if you look at General Flynn, this is someone who both President Obama and Attorney General Yates had warned folks not to trust. This is an individual who was terminated from his job as National Security Advisor because he was untruthful to the Vice President and now this is someone who had pled guilty to a felony

[09:05:00]

of providing false information to an FBI agent. And so his credibility as a witness, his ability to be believed on other significant matters has been significantly damaged by his own conduct. So the Special Council, if he intends to use him to provide information as to others, he's going to corroborate that, he's going to have to find independent evidence that supports whatever he says about anyone else. So his value as a witness, quite frankly, is not all that great despite the significance of the plea itself.

SMERCONISH: Ok, to your response of a moment ago, is it implied that he does have information on someone else? BROWNLEY: I believe so. I think that if you look at the plea agreement in and of itself, it is a-has a cooperation piece of it, paragraph 7 and 8 of the plea agreement really speak to cooperation. And I think it is implicit in the agreement that the Special Counsel believes that he will provide what we call substantial assistance in the investigation or prosecution of another. And certainly he anticipates providing that kind of substantial assistance to the Special Counsel in order to get the very low sentence that he's been promised which is practically nothing and a very small fine. So both sides have incentives here. But General Flynn has every incentive now to provide as much information as he possibly can. He may have already sat down for interviews. But no, this plea agreement is built for a cooperator, and he has every incentive now to cooperate with the Special Council. Now that doesn't mean what he has is of all that value. We just don't' know at this point because we have no idea what he's saying or, or the individuals that he's talking about.

SMERCONISH: You're a former United States attorney. Harry Litman is also a former United States attorney in "The New York Times," he said that this all portends the likelihood of impeachable charges being brought against the President of the United States. Do you agree with that?

BROWNLEY: You know, I just think that Professor Litman has gotten a little ahead on this. I think that what happened yesterday is significant for kind of three reasons. I think one, this is the National Security Advisor for the President of the United States. It's one of the most significant jobs in government. And so, the President relies on his advice for the national security of our country and the fact that he committed a felony while National Security Advisor is significant. I also think it's important as we talked about because he's cooperating.

And then I also think it is significant because of the message that it sends. If you look at his day yesterday compared to that of Paul Manafort. Mr. Manafort didn't cooperate. He got multiple felonies. Every crime they could think of they dropped on his head, decades of exposure of prison time, $11 million bond package just to get out from under house arrest compared to General Flynn who walked in, walked out, he's on his own PR and he's probably not going to spend a moment in prison. So the messaging is important. However, there are two important caveats. One, as we talked about, the General Flynn's credibility as a witness has been damaged-is damaged. And most people would find him to be unbelievable unless it is corroborated.

And then secondly, that the case in and of itself it doesn't show any substantive charges. What you have as plea agreements for both Papadopoulos and General Flynn are what we call process crimes. These are crimes of lying. But there's been no allegations to date, and no evidence presented in any of the papers that have been filed in open court to support a substantive count of collusion, conspiracy, or anything like that. Now, that may come. But, to date, there's-

SMERCONISH: Right.

BROWNLEY: --there's simply been no evidence of that, and I think that's what the Professor extends.

SMERCONISH: That goes, and that goes for Gates. It goes for Manafort, for Papadopoulos whose name I have difficulty pronouncing always-

BROWNLEY: Right.

SMERCONISH: --as well as for, as well as for, for Flynn. Thank you so much for being here. We appreciate your analysis.

BROWNLEY: Thank you.

SMERCONISH: Tell me your thoughts. Tweet me @smerconish or go to my Facebook page. I will read some during the course of this program as usual. Here's one right now, as a matter of fact. I believe he is building an airtight case. It will be interesting to see if Trump tries to pardon him sometime soon says Angela. But an airtight case for what? I mean, to, to, my guest's big picture view at the end so far as he puts it, "process crimes" that don't get to the underlying question that we all have pertaining to conspiracy said differently, collusion.

Up ahead, that tax cut that passed late last night estimated to increase the debt by more than a trillion dollars. Is it worth the price? I'm about to talk to the originator of the Laffer Curve.

(COMMERCIAL BREAK)

[09:10:00]

SMERCONISH: Departing the White House this morning for New York, President Trump made his first comments since the Senate passed its version of the tax bill and on the plea of Michael Flynn.

(BEGIN VIDEO)

DONALD TRUMP, PREDIDENT OF THE UNITED STATES: So it was a fantastic evening last night. We passed the largest tax cuts in the history of our country and many other things along with it. Tremendous tax reform but it was the biggest package in terms of tax cuts ever passed in our country. Now, we go on to conference, and something beautiful is going to come out of that mix there. People are going to be very, very happy. They're going to get tremendous-tremendous tax cuts and tax relief and that's what this country needs. One other thing, business tax all the way down from 35 to 20--it could be 22 when it comes out. It could also be 20. We're going to see what ultimately comes out but we now go into what I call the mixer. And the mixer is conference and out of that, the House Republicans and the Senate Republicans are going to pick something that will be truly spectacular. In addition,

[09:15:00]

though, we have other things that we approved last night which really make it some package. So these are the biggest tax cuts in the history of our country. UNIDENTIFIED MALE: Mr. President (inaudible) Special Council?

TRUMP: No, I'm not. What has been shown is no collusion, no collusion. There's been absolutely, there's been absolutely no collusion. So we're very happy. And frankly, last night was one of the big nights.

UNIDENTIFIED MALE: (INAUDIBLE)

TRUMP: We'll see what happens, thank you all very much. Thank you very much. Thank you.

(END VIDEO)

SMERCONISH: The GOP tax bill that President Trump was bragging about passed last night to spite the fact that the CBO says it adds $1.4 trillion in debt. Now Republicans have always believed tax cuts largely pay for themselves. They've also preached fiscal responsibility and that's why their new tax code ran into problems when the non-partisan joint committee on taxation calculated that the amount of growth it generated would cover only a third of its cost. The GOP believes in the so call supply side theory of economics that was born 43 years ago this month, literally on a dinner napkin.

When an economist named Arthur Laffer was having dinner with Ford Administration officials including Dick Chaney and Donald Rumsfeld, Laffer drew a crude curve to illustrate his theory, Government spending doesn't stimulate demand, and heavy taxes and regulations can stifle the economy. On one end of what we now call the Laffer Curve, the government taxes everyone at zero percent and so the Government gets no revenue. On the other end if it taxes at 100 percent, the same thing would happen. No revenues, because nobody has any incentive or earn or to spend.

Laffer concluded that lower taxes would spur the economy. His supply- side economics became a cornerstone of President Ronald Reagan's economic policy resulting in one of the biggest tax cuts in history and tax revenues soared thereafter. His napkin now resides in the Smithsonian. But, critics still think the trickledown theory of economics does not work. Joining me now, economist and former Economic Advisor to President Ronald Reagan, Dr. Arthur Laffer. Dr. Laffer, your premise is this, you tax something you get less of it. Tax something less, you get more of it but when you tax less you don't necessarily create enough revenue to make up for the loss of revenue. Is that accurate?

DR. ARTHUR LAFFER, ECONOMIST AND FORMER ECONOMIC ADVISOR TO PRESIDENT RONALD REAGAN: That is accurate, that's very accurate. Sometimes when you raise tax rates, you collect more revenues, and sometimes when you raise tax rates, you collect less revenues. It depends on where you are on as you call it, the Laffer Curve. But it's good to see you, Michael, again.

SMERCONISH: So the President just left the White House this morning in route to New York and he proclaimed this the largest tax cut in history. But what about the cost? What the fact that both the CBO and the Joint Committee on Taxation say this is going to be a stunner with regard to the national debt.

LAFFER: They're wrong. They're just plain wrong. You know what they do look at is economic growth. And that's true and that's a huge improvement what the CBO used to do and what the Joint Committee on Taxation used to do as well. But what they miss, Michael, is they miss the behavioral responses. Companies are going to shelter less income. That has nothing to do with growth. There's going to be less tax evasion because it's not as profitable. Businesses are going to relocate their corporate headquarters in the U.S. and pay taxes here instead of in Ireland and elsewhere and there are all sorts of secondary tertiary and quadrantary revenues of income taxes, payroll taxes, Medicare, Medicaid taxes, excise taxes, tariffs, all of those will come in and then the biggest killer of all, which shows them completely wrong, is that state and local taxes are going to rise enormously even though there is no change in the tax rates at state and local levels. It's just a huge, huge windfall for tax revenues frankly over a 10 year period.

SMERCONISH: The President was similarly touting that the corporate tax rate will tumble from 35 percent, maybe it goes to 20. He just said this morning that maybe it will end up at 22 percent. Corporations today are not suffering. I mean, the economy by many different measuring sticks is robust, maybe not with regard to wages. But you take a look at what's going on Wall Street right now. My question, Dr. Laffer, is, is this, why do those corporations at this moment in time need such a break?

LAFFER: Well,, let me just say Wall Street is in response to what is going to happen. Stock prices don't tell us what has happened. They tell us what they think is going to happen and there's a huge rise in stock prices because people expect a boom in the economy. And that will be to everyone's benefit. But when I look at these taxes, I think it will spur economic growth. It think it will do a good job. It could be a lot better bill than it is but frankly you will get higher wages for those people who are currently employed. And the big one for me, Michael, is that people who don't have jobs now

[09:20:00]

will be able to get jobs and have jobs. We, under Reagan, I think we created almost 20 million jobs under the Reagan bull market there because of the tax cuts primarily.

SMERCONISH: I gave you credit during the read-in to this conversation--

LAFFER: I know you did, thank you.

SMERCONISH: -- Dr. Laffer, no but, let me, let me finish this question because you might not be thanking me.

LAFFER: That's all right.

SMERCONISH: I gave you credit for the fact that Ronald Reagan followed your advice and that revenues increased but part two of that is ultimately he then did have to increase taxes. LAFFER: Sure.

SMERCONISH: And you know that critics would say that Bill Clinton, for whom I now you voted I think twice --

LAFFER: I did.

SMERCONISH: -- that Clinton and the, the tax increases on his watch actually belie the Laffer Curve theory. Respond to both of those criticisms.

LAFFER: Yes, let me do the later one first. Bill Clinton was the biggest tax cutter of all. Very close to Reagan and Kennedy to be honest. He cut government spending as a share of the GDP by almost 3.5 percentage points more than the next peace-time Presidents combined. Bill Clinton got rid of the retirement test in Social Security. He put in Welfare Reform. He had the biggest capital gains tax rate reduction in U. S. history. He exempted owner-occupied homes from capital gains taxation. I could go on and on. Clinton did raise the two highest marginal tax rates, that's true and that's what everyone else focuses on but that's minor compared to the really pro- growth tax cuts he put in. And that's why I voted for him. I didn't vote for him because he's a Democrat or Republican. I voted for him because he was a very good pro-growth President.

SMERCONISH: OK, a third criticism that you are accustomed to responding to, Kansas. Sam Brownback did what the Laffer Curve recommends. It didn't play out so well in Kansas. What went wrong?

LAFFER: Well in the first place it was Sam's tax cut but I did go down there and I did think it was a good one. It was a $90 million, $90 million tax cut on the budget of a little over $5 billion. It was a very small one. And then when they finally changed it around, the Senate changed around and took away all of the offsets that Sam had, it became a $270 or $280 million tax cut and then they had all sorts of increases in spending. And by the way, Kansas didn't do badly.

With falling oil prices, falling agricultural prices, Kansas is pretty, is pretty exposed to those types of events. And if you want to know the real truth Michael that's really, I think proof of what happened in Kansas, is in response to Sam Brownback's taxes in Kansas, Missouri cut its taxes because it was losing all their businesses in Kansas City, Missouri, to Kansas City, Kansas. So flattery, I guess, is the best form of flattery is emulation I guess, isn't it?

SMERCONISH; Here's my own version of it. Let me say, I hope you are right because we've got a $20 trillion debt already and we can ill afford throwing another trillion on top of that.

LAFFER: Go for it. You're very right.

SMERCONISH: Thank you. Dr. Laffer, good to see you.

LAFFER: Very good to see you Michael. Thank you for having me on.

SMERCONISH: What are you saying via twitter and Facebook Katheryn, what do you got?

Smerconish, Laffer's curve would work except for one fundamental law, human greed. Greed artificially affects the curve moving the bell further right when put into practice. It's why the Kansas experiment, glad that I just asked that question Douglas, did not work out so well. You know something else I didn't have time to get into with Dr. Laffer that occurs to me is that the corporate tax rate is going to come down. I don't know where the individual rates end up but what about the individual component? You know I felt that the whole theory of the Laffer Curve was to spur our own economic behavior not just for corporations which right now we're doing quite well.

Still to come, an evangelical baker decided not to make a wedding cake for a gay couple back in 2012. That case is finally going before the Supreme Court this week. How will the justices rule? We're about to find out.

(COMMERCIAL BREAK)

[09:25:00] SMERCONISH: That case about the Colorado baker who refused to make a wedding cake for a gay couple is finally reaching the Supreme Court this week. And activists already began lining up outside the Court last night. Back in 2012 Charlie Craig and Charlie Mullins attempted to buy a wedding cake at Masterpiece Cake Shop in Lakewood, Colorado. But the evangelical Christian owner, Jack Phillips refused. The Colorado Civil Rights Commission found Phillips liable for sexual orientation discrimination which is prohibited by the state's Public Accommodations Law and state courts have upheld the commission's decision. But the Supreme Court is looking at Phillips' case because of free speech claims. He contends, the baker that the was not discriminating on the basis of sexual orientation, but on the basis of a particular message, endorsement of same sex marriage.

Does he have a case? Joining me now is John Corvino. He's a professor of philosophy at Wayne State University. He's also the co- author of the book entitled "Debating Religious Liberty and Discrimination." Professor, as you have written, this is actually the story of two cakes; it's the tale of two cakes or two bakeries. You've got Masterpiece in Lakewood, Colorado where the baker Jack Phillips refuses to sell a same-sex couple, a wedding cake and the state Civil Rights Commission said that's discrimination. But at the Aazucar Bakery in Denver, Marjorie Silver won't put a red X on a bible-shaped cake with two grooms and the commission says well, "That's OK." Isn't there an inconsistency there and how do you resolve it?

[09:30:00] JOHN CORVINO, PROFESSOR: I don't think there's an inconsistency. And, of course, this is actually many cakes because there've been a number of cases across the country about this issue.

But I think the important difference between the two cases you mentioned, is one is a design-based refusal and one is user-based refusal. And if I could back up just a second, the government gives businesses wide latitude to decide what they're going to sell. So we don't say to the vegan bakery has to sell a real butter cream cake, or that a kosher bakery has to sell a cake topped with candy bacon or anything like that.

By contrast, we don't allow business to decide to whom they sell. We say, if you open a business to the public, it should be open to the entire public. And specifically, Colorado prohibits discrimination on the basis of race, ethnicity, religion, sex, and also sexual orientation.

Jack Phillips, the baker in this case, would not sell the same sex couple the very same items that he's willing to sell to different sex couples. That's different from Marjorie Silva who said, look I'm not going to sell this particular design to anybody, it's a design-based objection in her case.

SMERCONISH: So Jack would say, wait it's not about who they are, it's about what they wanted. I, for example, if I'm that baker, I don't open on Sundays. I will not sell you, Professor, a Halloween cake because that does not comport with my religious view of the world. Does that wash?

CORVINO: I don't think it washes because a gay wedding cake isn't really a thing. As gay people, we order our cakes from the same catalogs as other people order their wedding cakes from. You pick your frosting, you pick you filling, you pick your cake flavor, you pick how many tiers you want. And Jack Phillips did not discuss any elements of design with the couple.

He said, I will not sell you any wedding cake. And it's interesting, Masterpiece Cakeshop his bakery, also at one point refused a cupcake order from lesbians when they found out that they were going use it to celebrate their commitment ceremony.

So this is a case where, where the use based distinctions and user based distinction kind of collapse in to each other. It's not a specific design again that he's, like a Halloween cake, that he's unwilling to sell. He's unwilling to sell this to same sex couples at all.

SMERCONISH: OK. What if they'd come in and they said, we want a wedding cake with two grooms on the top of it and he said, well I'll sell you the cake but I am not putting the two grooms on top. Would that of been a stronger case?

CORVINO: It think that would have been a much stronger case, but that's not the case that the Supreme Court has before it this coming week. He would not sell them any wedding cake at all. Wouldn't even discuss designs with them.

SMERCONISH: Professor, are we about to establish policy? That will apply, not only to the baker, but also to the florist, to calligrapher, maybe to the wedding band. You know, your band gets hired and then you say, oh we don't want to play a wedding dance at a same sex couple. Will the Supreme Court be able to articulate something that will apply to each of these circumstances?

CORVINO: I suspect that the Supreme Court will try to rule on this case in a way that is very narrow. That does not have implications for all of those other cases. Because in some of those cases, we're talking about something a little bit different. You know, photography has traditionally been recognized as an art form more than cake baking has.

The wedding band, you know when different artist perform on site at different events, that's a little bit different than the baker who sells them something and then they take it away and the baker, you know, what they do afterwards is none of the baker's business. But I do see think that this case has important implications for whether religious freedom or the freedom of speech give people a license to discriminate.

And I think it's really important that even though this is about cakes, antidiscrimination law is not primarily about cakes and flowers and other frills. It's about employment, it's about housing, it's about basic goods and services. And I think it's really important for the court to say, you know, when you open a business to the public, you open it to the entire public. You don't discriminate on the basis of these characteristics.

SMERCONISH: Quick final questions, Professor Corvino and thank you for being here. Once again, is it Justice Kennedy?

CORVINO: I think Justice Kennedy is important in this case, but I also think that we, you might look at some of the other Justices. I think even Justice Roberts could rule with the state of Colorado in this case, against the baker. Because again, if you look at the history of precedence on cases like this, freedom of speech, freedom of religion, does never, does not ever give businesses the right to discriminate on the basis of these protected characteristics. You know, a get out of the law free card, when it comes to antidiscrimination law. And I think it's really important for the court to establish that.

SMERCONISH: Amazing that they're already lining up, on this Saturday, for this Tuesday argument about the cake. Obviously, because it's about much more than just the cake. Thanks, Professor. I appreciate your being here.

CORVINO: Thanks for having me on.

SMERCONISH: How we doing with twitter and Facebook? Kathryn, give me something. From Facebook. Nobody is going to want to bake a cake for anyone anymore, regardless of their beliefs, just for the reason of being complicit by one group or non complicit by another. We're all considered enemies of each other in this new America.

Hey, Shannon, here's my view. You want to be a baker? Bake the bake. You got a problem baking the cake, then maybe bakery isn't for you. I mean, I see this, the similar, in a similar fashion to the person who works at, you know, CVS or RiteAid and said, I don't want to dispense with contraception. Then maybe, pharmacy is not the best profession for you.

[09:35:00] Still to come, after a jury found the undocumented Mexican immigrant innocent in the death of Kate Steinle, many especially conservatives have express outrage. Was justice actually served? I'll ask Mark O'Mara.

(COMMERCIAL BREAK)

SMERCONISH: On the surface, it sounds absolutely outrages. A guy who was deported five times, shoots a gun, is responsible for the death of an innocent women, Kate Steinle, who'd just been walking along a pier with her father, in whose arms she then dies. And yet this week a jury exonerated him.

The President, then Tweeted, a disgraceful verdict no wonders the people of our country are so angry with illegal immigration.

[09:40:00] And many conservatives then chimed in. Sarah Palin for example, the illegal alien who shot her was just given more rights, grace, and favor than the devastated Steinle family.

Ann Coulter said, she would still be alive if we had a wall. Ted Cruz, I'm disappointed and angry at the not guilty verdict. Even the Attorney General weighed in on the verdict in a statement saying, San Francisco's decision to protect criminal aliens led to the preventable and heartbreaking death of Kate Steinle. Well it's understandable that people are upset, is the criticism of the verdict and the jury warranted in this case?

Joining me now is criminal defense attorney and former prosecutor, Mark O'Mara who of course famously defended, George Zimmerman in the Trayvon Martin case. Mark, can you defend this outcome?

MARK O'MARA, ATTORNEY AND FORMER PROSECUTOR: Without question. You know, my concern and my frustrations with sort of the demagogues who take this and use it as political fodder. The system worked. And the system worked for this reason, twelve people looked at the case, the State Attorney's office put on their best case to try and convince them of it.

I will tell you, I think the prosecution overplayed their hand when they charged him with first degree murder. That was a horrible over charge. But the reality is, the system works and it should not be denigrated by people using it for political back and forth because my concern is that now than even decades ago, I think that the criminal justice system is under an assault that we need to be more careful about. The system worked very well.

The jury listened to the case, they did what they were supposed to do and we cannot forget we do not give illegal aliens, and I agree that he should not have been in this country, and if he had not been in this country, Katherine would be alive today. But the reality is, we do not treat people differently once they walk inside a court room. It says in the front of every court room, equal justice under the law. That's what happened here and we need to accept that the system worked.

SMERCONISH: OK. Might it be better if you said it this way, that the jury fulfilled its responsibility? In another words, they dealt with the case as it was presented to them and the prosecution had over charged because there was an intent requirement with first degree murder. Rather than saying the system worked because I'm unsettled with this and I know you, you have to be unsettled with this as well. I think you mean to say is, you can't fault these jurors for this outcome.

O'MARA: Am I wrong?

SMERCONISH: No.

[09:45.00]

O'MARA: And you're right, Michael, you cannot because this burden always stays on the prosecution. It is their responsibility to convince 12 people beyond a reasonable doubt that they should get their conviction. And rather than faulting 12 people who tried their hardest to do exactly what they were asked to do, decide the case based upon the law and the facts, I think we should look at the prosecution and say, mister prosecutor, where did you fail?

Because look, I'm very frustrated that this person gets to walk free and we have somebody who is not deceased because of his actions. Will he be help civilly responsible? He has no money. But the reality is, what happened in that criminal courtroom, those 12 jurors, I think, and I looked into it, did their job and we cannot fault them.

SMERCONISH: You also, and I'm sure with the Zimmerman case on your mind, don't like when the politicians articulate their view points. President Obama weighed in on the Zimmerman case in the same way that President Trump was just critical in the Steinle case. What's the lesson you want them to know?

O'MARA: Well, Michael, you and I talked about this when President Obama chimed in twice while the Zimmerman case was still pending, I was very frustrated. And I said to you, I believe it was, Presidents don't get to say they'd like McDonalds over Burger King or whatever it might be.

I think it is horribly improper and degrades the process for any politician, be it POTUS, the Attorney General, or anybody else to come in and attack the system when it works. Let me tell you something, this was not a disgraceful verdict. So the President is wrong.

This verdict, as best we know was appropriate and I'm very concerned that we attack and denigrate the criminal justice system which is the best in the world and does work very well, and seemingly worked in this case. When we denigrate it because we're worried or we want to get some type of yardage on an immigration policy. They are not to be conflated, leave our criminal justice system alone.

SMERCONISH: Mark O'Mara, thank you so much for being here, as always.

O'MARA: Thank you, Michael.

SMERCONISH: More social media, tweets and Facebook. One Tweet let's see what it is. This verdict represents exactly what San Francisco residents believe, illegal aliens first, and Americans last. Pete, I get your criticism. I'm not happy with this either, I, I mean I don't I don't I don't want anybody to watch this segment and think that I'm satisfied with the outcome in the Steinle case.

I'm not. I'm angry as everybody else. But I think Mark O'Mara makes a point when he says that the criticism shouldn't be vented at those jurors. I have great respect for those who honor their jury service; they were dealt a bad hand the way in which the prosecution teed this up. That's his observation. Up next, James Carville famously said, the most important issue politically is "the economy stupid." Is that still the case this week? I called him up and I asked him.

(COMMERCIAL BREAK)

[09:50.00]

(BEGIN VIDEO)

JAMES CARVILLE, POLITICAL COMMENTATOR: Stay focused. Talk about things that matter to people. It's the economy stupid.

(END VIDEO)

SMERCONISH: -- Presidential race and Bill Clinton then rode those words to victory. He actually wrote "the economy is stupid" on the White House Board on the campaign's war room. But where today, we have such a disconnect between President Trump's disapproval ratings and a robust stock market and low unemployment, I've wondered if those words still apply. So this week for my Sirus XM radio program and my Philadelphia Enquirer column, I called the Ragin' Cajun, and I asked, whether his words from 1992 are still applicable. The short answer is, not as much. James Carville told me that the biggest change in American politics since '92 is polarization.

(BEGIN AUDIO)

CARVILLE: The biggest change in American politics, I think, is what is known as negative partisanship. So all things being equal, I think the economy still would drive public opinion in the United States, but my guess is that it probably matters a little less today. Most things matter less today because everybody in each party hates the other party so much they tend to stick together.

(END AUDIO)

SMERCONISH: So I asked Carville will economic metrics and Presidential approval numbers ever align again?

(BEGIN AUDIO)

CARVILLE: Previously, you know, every President wanted to be like above 50. He, he seems to be totally content with have 37 to 38 percent of the country in his corner and a vast majority of the Republicans and doesn't even seem to go through the motions to try to bring other people into his orbit.

(END AUDIO)

SMERCONISH: In other words, it's the polarization, stupid. Still to come your best and worse tweets and Facebook comments like this one.

But who is polarized? Is it the Average Joe on the street, political elites, or both? OJ, how I wish I had more time to respond to that. I don't we're as polarized as they are. I think the media is polarized and elected represented both in your state capital and in Washington are polarized, but where you've got 45 percent of the American people telling Gallup they want to be regarded as Independent. I think there are a lot of us that don't want to be associated with either end of the polar extremes. Back in a moment.

(COMMERCIAL BREAK)

[09:55.00]

SMERCONISH: Hey, if you're in the D.C. area on Monday night, tickets are still available for my appearance at the historic 6th & I Synagogue where I'll deliver my divided we stand speech. Hope to see you there.

Remember to follow me on twitter on Facebook and here is some of what came on during the course of this program.

Come on Mike, the lion charges are just the cornmeal on the big fish about to be fried. Tim's Wife, my point in my opening commentary was this: if you had a choice of things you could have gotten if your Mueller, and you had a choice of things that you could have gotten Flynn to plead guilty to, lying would be at the bottom of your list because you're harming his credibility in front of a jury as you go forward. So imagine a defense lawyer cross examining him where he stands up or she stands up and they say, "You know, Mr. Flynn, isn't it true, you lied? And, and, you're now a felon as a result," et cetera, et cetera, et cetera. You wouldn't devastate him for that purpose if you had alternatives. That's what I was trying to say.

Another one, what do we got? Smerconish, yes, Flynn's plea is a big deal. But are you wearing a Spiderman tie? I don't know. I always liked Spiderman. I'm wearing a Paul Stewart tie. Thank you very much. Next. What do we got?

Smerconish, by the time you learn to pronounce Papadopoulous, Papadopoulous, hey wrong, wrong, right. I did it again, didn't I? Kathryn, did I say Papadopoulous incur-I did, just never put that in the prompter, I can't handle the word and I admit it. Next, what do we have? Papadopoulous, Papadopoulous, I did it again. I can't believe I did it.

Imagine being at a wedding and eating a cake that someone was forced to bake. Ricky, are you implying that that's like the chef who makes the soup that you best avoid?

One more if I've got time for it. Smerconish the anger that people feel is understandable but the failure of the prosecution to present a winning case is where the anger should be directed. The law worked as it should have. Hey Brian McDonald, my suspicion is that my friend Mark O'Mara will catch a lot of heat, particularly at another network that we can both name because he said in the Steinle case, that the system worked. And that's why I, I said to him, "Mark, I think what you wish to say is that the jury performed it's role because I think what most concerned him, and I buy into this, is the people were critical of those jurors. What O'Mara's point was is those jurors were only dealing with the hand that they were dealt.

If you ever miss any of this program, you can catch us anytime on CNNgo or on demand. I'll see you next week.