Return to Transcripts main page

Smerconish

Trump Blocks Democratic Intelligence Rebuttal of the GOP Nunes Memo; Will the Olympics Help Ease Political Tensions Between South and North Korea?; Are Voters More Loyal to Parties Than to Issues?; Judge in Brock Turner Assault Case Being Recalled; Aired 9-10a ET

Aired February 10, 2018 - 09:00   ET

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

[09:00:21] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world.

Hashtag "where is the memo" after the president promised we'd see the Democrats' response to the Nunes memo, it's still under wraps. How come?

And a second White House aide stepping down after accusations of spousal abuse. And he's just one of dozens in the Trump administration lacking full security clearance.

Plus the Winter Olympics have begun in South Korea with both countries marching under the unification flag. Now comes the stunning news that Kim Jong-un's sister has invited South Korea's President Moon to Pyongyang.

Has Trump's bad cop behavior actually helped diffuse tensions?

During the shutdown battle, Rand Paul accused both parties of grandstanding while abandoning their core principles. He's right. So why do voters remain so loyal to their home team? You will hear a very convincing theory from Andy Duke, the former poker champ and "Celebrity Apprentice."

Plus after outcry over his relatively lenient sentence for the Stanford swimmer convicted of sexual assault, the judge is now facing a recall. But was he actually wrong?

First, last Saturday, my mother told me she enjoyed my program and she said I couldn't follow your commentary on that Russian business. Well, that's what the White House is banking on, that all of this back and forth is confusing, that few of us will read in and comprehend what it's all about.

It's what they did in the lead up to the release of the Nunes memo about the Russian probe and the Steele dossier, and now they're trying to do it again with last night's announcement, but they're not releasing the Democratic response in contradiction of what they said when it was a memo that suited their interests.

What a shame that now even intelligence is subject to our partisan divide. In my opening commentary here last week, I said show us everything.

Meaning not only the notorious four-page Nunes memo, but also the 10- page debated Democratic response. Transparency demands no less.

The committee apparently agreed with me. After the release of the Nunes memo, its members voted unanimously to release the Democrats' response. But now the White House has said no. In a Friday night news dump, White House counsel Dan McGahn said that the Justice Department had identified portions of the memo that, quote, "would create a specially significant concerns for the national security and law enforcement interests."

Now that sounds compelling. Unless you stop and consider that the FBI had issued a statement saying it had grave concerns about the release of the Nunes memo yet that didn't stop the White House.

Here is what is really going on. The Nunes memo didn't live up to the hype. It was ultimately an embarrassment to all the those who promoted it when we couldn't see it. And in all probability that will be made even more clear if the Democratic response sees the light of day.

Before the release of the Nunes memo, the president was in a great position politically speaking. Republican members of the House Intel Committee gave interviews in friendly outlets painting a dire picture of what the memo revealed while saying they couldn't possibly speak to its specific contents.

Well, that left no opportunity for anybody to challenge their assessment. And of course the lack of ability to cross-examine did not deter their media enablers. They promoted the idea that the Nunes memo undermined the entire Mueller probe. One commentator said that it would make Watergate look like the theft of a Snickers.

The memo itself promoted that type of thinking. And its introduction, it claimed to evidence a breakdown of the legal processes established to protect Americans. But that is not what the memo showed. It sought to politically resurrect the importance of Carter Page, an individual the president and his campaign had gone to great lengths to diminish.

The key claim was that Page was surveilled initially based on a FISA court order obtained without court knowledge of who paid for the underlying intel. But it's not clear that the investigator, former British spy, Christopher Steele, knew who was funding his intel gathering.

More importantly, Carter Page was on the radar of the FBI long before the political rise of Donald Trump and the Russian probe began three months before the initial FISA request regarding Carter Page. The point is that the Russian probe was begun before and independent of Page.

Look, the entire issue requires a deep dive into the weeds and that's what the White House is counting on. That you won't do the homework. And that their enablers will boil it down to a misleading sound bite or tweet. They were able to do that before the Nunes memo and now they want to turn back the clock.

[09:05:10] I want you to do this, go to my Web site @smerconish.com and vote on this question. We'll give the results later this hour.

Do you believe the White House's reason to hold back the memo was for concerns over security and law enforcement?

One of my first guests says he was stunned when his reporting was mentioned in the House Intel Committee memo released by Republicans, Michael Isikoff, the chief investigative correspondent for Yahoo! News is back, and Tom Fuentes is here, he's the former assistant director of the FBI.

So, Michael, as I've reminded the audience it's your reportage that was cited in the Nunes memo. What do you think we might see should we see the Democratic response?

MICHAEL ISIKOFF, CHIEF INVESTIGATIVE CORRESPONDENT, YAHOO NEWS: Well, it's actually not a surprise to me that the White House didn't release this memo because from everything we know, the -- the Democratic memo is about the context for that FISA application. All the other stuff it had beyond the Steele dossier that gave them suspicions about Carter Page and his ties to the Russians.

And if you read the transcript that was released yesterday of the House Intelligence Committee meeting earlier this week, there is references to a human source overseas, there is references to signals intelligence picked up by the NSA. That stuff is highly classified. The Justice Department and the FBI would have had valid reasons to object to that being released.

So, you know, we shouldn't necessarily sort of assume that this was being done for political reasons. The problem was the original decision to release the first Republican memo which the FBI's issue was not that it was revealing classified information, is that it was incomplete and misleading because they knew you couldn't include all this other stuff that was highly classified.

So we're left with, you know, more confusion -- you know, I'm with your mother on this, I mean it is a muddled situation. And, you know, even those immersed in it are no more educated about what the basis for that FISA warrant was in then we were before all this memo fight began.

SMERCONISH: Hey, Tom, here is something that troubles me. Last week it was the FBI saying they had grave concerns if the Nunes memo were released. Last night the White House relied on the Justice Department expressing concerns in different language that sounded awfully similar.

To me as an outsider, the Justice Department and the FBI, I thought you were all -- referring to your previous life -- one in the same. What kind of a divide does this evidence?

TOM FUENTES, CNN LAW ENFORCEMENT ANALYST: Well, Michael, I'm not sure about the divide, but, you know, what I would say is from the beginning, Director Christopher Wray of the FBI didn't want the first Nunes memo released because he said by omission it would lead people to have a false impression. So he didn't say that it would divulge sources and methods, the memo itself, but what he was basically saying was that the defense required to address what the allegations are in the memo would require releasing sources and methods.

Now you have a Democratic memo and you have this, you know, back and forth, does the president have a double standard, he lets the Republican memo go public, the other one not. And we don't know for sure. Because we don't know what the underlying basis.

Now to go back to your original premise or statement that people should do their homework, they can't. What they would need to make an accurate decision would require the use of a lot of classified material and it is just not going to happen. And the problem I have with this is the committee has a mechanism to conduct these investigations, top secret security investigations, and then if they find wrongdoing, make the appropriate referral because they can't prosecute.

All they are doing is making, you know, a public show of all of this, refer it to the Office of Inspector General who has responsibility to investigate wrongdoing on the part of any employee of the Department of Justice, FBI, DEA marshals, federal prisons, the attorneys in the judicial district, et cetera. That's the way to do that.

And I'm not trying to defend the FBI here. I'm saying the FBI is not in the position to be able to defend itself because it can't use that material. But if a serious confidential secret investigation is conducted and FBI employees, FBI agents or DOJ employees improperly acted, it would be a felony if they committed a fraud against the FISA court and in my opinion they should be prosecuted and if necessary go to prison if that occurred.

[09:10:07] But it needs to be a proper investigation where all of the information can be analyzed, not this back and forth battle of three- page, four-page memos.

SMERCONISH: Michael Isikoff, the spin that was put on the Nunes memo is that the FISA court initially in the first of those four orders relied on a guy who had an ax to grind, Christopher Steele, who you've interviewed who was funded by the Clintons, by the DNC, by some group of individuals antagonistic to Donald Trump.

Might we see in the Democratic response if it's forthcoming that there was more presented to the FISA court in that first order in terms of allowing surveillance of Carter Page? Isn't that what this potentially is all about?

ISIKOFF: Right, and not potentially. I think that's what the Democratic memo is all about. That's what we've been told, that's what members of the committee have said. The problem is we haven't been able to see it.

Now there are steps that the committee could take that might, you know, illuminate to some degree some of this. For instance, there is the back and forth about what Andrew McCabe, then the deputy director of the FBI, testified to about how much weight the Steele's dossier had in that FISA application. The Republican memo said it was -- it could not have been -- it would not have been sought had it not been for the Steele dossier.

The Democrats say that's a mischaracterization of what McCabe said. The transcript or the excerpt from the transcript, the relevant excerpts, could be declassified and released. That would not seem to implicate classified sources and methods. So that is one step that could be taken here. But, you know, to get to the bottom of the whole thing it would require a full examination of all the classified intelligence.

One point that is worth remembering here, even if you go back to the Nunes memo, the original one, is that the FISA warrant in Carter Page was renewed three times. So in order for that to happen, the FBI would have had to have made representations to the court that it was getting fruitful intelligence from that warrant and, you know, that is something we haven't seen either.

SMERCONISH: Right.

ISIKOFF: But it would be important to know.

BERMAN: But the point -- the point being that that hurdle would have needed to be cleared on four different occasions, not just once.

Tom Fuentes, thank you. Michael Isikoff, thank you. I wish we had more time. I appreciate you both being here.

Reminder, I want everybody to go to my Web site, it's smerconish.com. Answer this question, do you believe the White House's reason to hold back the memo was for concerns over security and law enforcement? We'll have the results at the end of this program.

What are you thinking now? Tweet me #smerconish. Go to my Facebook page and I will read some in real time. For example, via Twitter, what do we have?

"Of course it was for security reasons. The FBI and DOJ told the committee to change it. But looking at your poll, all the sinister Democratic base want to blame it all on Trump. Blame it on Schiff. The jerk wanted to trap your president." I love how he's my president. He's all of our presidents. I guess I should say.

I think transparency demands we see it all. Maybe we never should have seen the Nunes memo. Maybe the Nunes shouldn't have been written. Perhaps it was written for a partisan reason. But now that it's in the public domain, fairness demands that we see the response. That's my position.

One more via Twitter if we have time. "Smerconish, the Nunes memo had a grave concern because it was incomplete and misleading. The Schiff memo has security concerns. Totally different issues and requires totally different responses. Be smarter." Micah (PH), I'm trying. I think that's pretty much what Tom Fuentes

just said. I'm concerned that they are now literally walling off the Intel Committee, a partition is going up in the intel committee between Democratic and Republican staff. That is how bad polarization and partisanship has gotten in this country.

Hence my concern that I'm seeing the FBI and Justice Department being used seemingly at odds on the release of this intel. Used to be that our partisan differences, you know, they stopped on matters of, say, national security.

Up ahead, historic backstage moves as the Winter Olympics opened last night in South Korea. Kim Jong-un's sister invited South Korea's President Moon to Pyongyang, which would be the two sides' most significant diplomatic encounter in more than a generation.

So is President Trump's bad cop technique actually working?

(COMMERCIAL BREAK)

[09:18:25] SMERCONISH: Even though North and South Korea are still at war during the opening ceremonies at the Olympics, athletes from North and South Korea marched behind the blue and white unification flag. And on the sidelines, Kim Jong-un's sister invited South Korea's President Moon to Pyongyang which would be the two sides' most significant diplomatic encounter in more than a generation.

So after all the fears of hostilities is getting worse, is the Trump administration's bad cop-good cop policy actually working?

Joining me now is Jung Pak, who was a portfolio manager for East Asia at the CIA and is currently the chair of Korean Studies at the Brookings Institutions' Center for East Asia Policy Studies.

John, let's review what's happened here. South Korean President Moon postponed military exercises with the U.S. and then Kim responded by sending athletes. They marched under a unified flag. Now the proposed meeting of the two Korean leaders is out there. And all of this amidst Korean testing of its most powerful nuclear device ever, which I think begs the question, is President Trump's bad cop routine to the South Korean good cop routine, if you buy my analogy, is it actually working?

JUNG PAK, KOREA STUDIES CHAIR, BROOKINGS INSTITUTION: Thanks. I don't know about the good cop-bad cop routine. I don't think it was orchestrated in that way. If you judge by the national security strategy and President Trump's State of the Union address, its North Korea and the rest of the world. So I think the Trump administration's preference is for the Moon administration to be very cautious in moving forward with North Korea.

This is a big deal. North Korea under Kim Jong-un who came to power in December 2011 has been fortress North Korea.

[09:20:07] So the fact that Kim has invited President Moon of South Korea to visit North Korea is a big deal especially since Kim has yet to meet a foreign head of state.

SMERCONISH: Well, read the tea leaves. Do you think that this is being orchestrated? Is there a definable policy behind closed doors between South Korea and the United States or are we seemingly at odds with these latest developments?

JUNG PAK: I think vice president's participation at the Olympics I think was good. I think it was great that he was showing support. But I think it was also clear that the U.S. wants to make sure that South Korea stays on the same page on maximum pressure. Maximum pressure so far has been weighted heavily on the military strike options and on sanctions without the engagement part.

So President Moon has to maintain a delicate balance here. On the one hand, he wants to maintain or improve inter-Korean relations, but on the other hand he has committed himself to maximum pressure and engagement.

SMERCONISH: Do you think the bellicose nature of the president's -- our president's tweets has had a positive impact? Meaning that the more he refers to Kim as little rocket man, the more Kim is contacting or vice versa the South Koreans and they're saying hey, this guy Trump is really an intangible, maybe we ought to have some conversation, some dialogue, unlike the last several years?

JUNG PAK: Right. I think the fire and fury talk and the locked and loaded conversation has really in a way spooked both sides, both North Korea and South Korea. North Korea I think part of the -- the reason for the Olympic outreach is to try to take the toned down tensions in the Korean peninsula because I think they might have at least taken the threat seriously to warrant this outreach.

And for the South Korea side, the Moon administration, senior officials from there including the president, have been very vocal about making sure that military strikes, U.S. military strikes, do not happen without South Korea's consent, which is a rare public rebuke or criticism to make sure that the U.S. does not do anything unilaterally.

So I think the unintended consequence of the robust and strong and forceful language from President Trump has ironically driven the two sides together in this way.

SMERCONISH: I know that in your prior work at the CIA, you were responsible for the preparation of portions of hundreds of PDBs, Presidential Daily Briefs. So I think that you're the perfect person to ask this question.

How well do we really know Kim? How detailed is the profile that the CIA possesses on the North Korean leader?

JUNG PAK: CIA and the intel community as a whole I think is a great organization, great institutions that work together very well. And I have firsthand knowledge of the way that we collaborate and cooperate on the analysis. That said, North Korea is one of the hardest targets if not the hardest targets because as I mentioned North Korea, especially under Kim Jong-un, has been fortress North Korea.

The two most significant, firsthand observations of Kim come from a sushi chef who used to work for the regime and from Dennis Rodman, the U.S. basketball player. So it takes -- we have to be very adaptable in looking at the North Korea problem set and to make sure that we are working together especially with our allies, South Korea especially, to work on the North Korea problem.

SMERCONISH: Jung, if we had more time, I would want to pursue who is more reliable, the sushi chef or Dennis Rodman, but we'll save that for another conversation.

Thank you.

JUNG PAK: Certainly. You're welcome.

SMERCONISH: Let's see what you're saying at my Twitter and Facebook page. I think these are from Facebook. What do we have, Katherine?

"You're giving Trump too much credit for North Korea-South Korea talks. Trump is not that smart."

Hey, Gale Marie, he doesn't need to be smart. I think it begs the question, to be fair to the president, have those bellicose tweets of his caused certain in both North and South Korea such that they are having dialogue unlike any time in the recent past? Why else all of a sudden are they having conversation unifying their Olympic teams and now saying that there will be a meeting between Moon and Kim?

Another one. What else do we have?

"Do we really want a unified Korea?" Wow. James, that is a great question. Because who will be the dominant player militarily if in fact that comes to pass? What a great insight from you.

Still to come, lately both the Democratic and Republican Parties seem to have reversed themselves on several issues and yet most of their voters still swear allegiance to them. Why is that?

You're about to hear a compelling theory from former "Celebrity Apprentice" and poker champ Annie Duke.

[09:25:05]

(COMMERCIAL BREAK)

SMERCONISH: So the president just tweeted, and my hunch is he was watching the opening commentary of this program because it was in direct response to the subject matter we just covered.

"The Democrats sent a very political and long response memo which they knew because of sources and methods and more would have been heavily redacted whereupon they would blame the White House for lack of transparency. Told them to redo and send back in proper form," exclamation point. Almost like a teacher would send us a memo. Mr. President, here's what I would say to that. That should have been

anticipated when you made the decision to release the Nunes memo. You know, of course it was going to spur this tit--for-tat. Especially where the takeaway that you wanted people to have from the Nunes memo is that Carter Page was surveilled only because of information paid for by your opponents and that that wasn't known to the court.

[09:30:06] So that if in fact the FISA court knew more than that, when they allowed the surveillance of Page, the Democrats want to put that in the public domain.

I fear I'm losing my mother again with this explanation because it requires a deep dive. I just hope other Americans will spend the time doing so.

All right. Wind your clock back about, I don't know, 25 years. And imagine this as the lead in a major American newspaper. Quote, "Congress passed a bipartisan spending deal that would blow through the caps imposed by the Budget Control Act. They will unlock 300 build in new spending which comes after last year's $1.5 trillion tax cut. And in other spending news the White House plans to spend $1.5 trillion on infrastructure that would require $200 billion in government funding."

Now reading that in a bubble, which party would you assume controlled the government and was growing the debt? Democrats, right? Critics would say they're spending like drunken sailors. But right now Republicans control the White House, the Senate and the House of Representatives. And that was the lead of the "New York Times" story after the GOP Senate and House voted on a budget deal to keep the government functioning and increase deficit spending.

In an essay from my Web site, game theorist Annie Duke noted, quote, "Pick an issue. Watch the parties draw an unmovable line in the sand and quietly look back just a few years and notice the parties have switched sides."

She is right and here is the kicker. While the parties have switched sides, voters have not. Whether the issue is trade, deficit spending or respect for law enforcement, we are witnessing major shifts in party positions without a corresponding voter realignment.

It used to be that people joined political parties because of their principles or at least that's what they said. Today it seems party affiliation is determining your principles, not vice versa. And that's what Rand Paul was noting when he took to the Senate floor in opposition to this week's budget deal.

(BEGIN VIDEO CLIP)

SEN. RAND PAUL (R), KENTUCKY: When the Democrats are in power, Republicans appear to be the conservative party. But when Republicans are in power, it seems there is no conservative party.

(END VIDEO CLIP) SMERCONISH: And not just that, Republicans have been the party of law and order since at least the summer of '68. Now it is the GOP led by the president that's condemning of the FBI and the investigation of a special counsel.

Here's another. On Bill Clinton's watch, many expressed more outrage over the intern scandal. And today those folks are largely silent on the reports that the president having been with a porn actress.

Democrats do the same thing. Look at what they were arguing about in the 2013 budget shutdown. That it was wrong for the other party to hold the government hostage over a single issue, in that case Obamacare. On this year's tax bill, the party that is always willing to spend suddenly became deficit hawks.

Obama pushed the U.S. to join the Transpacific Partnership even though it was against traditional Democratic principles of protect going the working class and now President Trump has canceled it.

The thing is, the party in power is naturally going to end up with more examples of flip-flops because they got the stage. But the Dems have done their share as well. You can even see this now in their outraged reaction to the Trump White House's handling of e-mail, classified information and a security clearances. Hillary anyone?

Look, there is nothing wrong with changing positions based on circumspection and new discovery, but that's not what this is. This is tribal politics. Being for or against something largely in reaction to your opposition.

Joining me now, Annie Duke, the former professional poker player, decision strategist and consultant. You'll remember her of course battling it out with Joan Rivers in a season of "Celebrity Apprentice" with now President Trump. She is the author of a brand new book, it's titled "Thinking in Bets."

Annie, why are people changing views but not their party?

ANNIE DUKE, AUTHOR, "THINKING IN BETS": Well, the question is, what determines your identity? And is it more important that your identity is aligned with the political party which really becomes part of your tribe or are you going to protect your identity that adheres to your ideology or principles? And there's lots and lots of scientific evidence that shows that your identity is mainly the one that you're going to protect is the party identity or your tribal identity and that's why you're willing to shift the policy so much.

SMERCONISH: Maybe it's always been this way. Maybe we've lied all those years that we said my principles determine my party. Maybe it's always been just like it is today, it's just more exposed.

DUKE: Well, I think that that's true. I mean, when you have a conflict between your basically adhering to your tribe or your political party, and your beliefs, you have to resolve that conflict some way. [09:35:02] So we know that ideology on its own will drive your initial

political identification. But there's studies that have been done over many decades ago where you could show that, for example, if I show you a piece of legislation or policy on welfare, your ideology will drive what you choose. But as soon as I assign it to a party, Republican or Democrat, then your ideology goes out the window and you just prefer the one that says Republican or says Democrat even though it doesn't adhere to what you say your ideology is.

SMERCONISH: I tried to give examples showing that both sides, both parties, do this. Do you think that they do it in equal measure?

DUKE: Well, I think that both sides definitely do it. I think that there is some evidence that if may be slightly tend a little bit more conservative. And that is just because if you look at the work of people like Don Hype, for example, one of the things we know is that conservatives value loyalty and authority a little bit more and people who tend to have liberal ideologies prefer the individual a little bit more.

So you're going to see it from both because both belong to these tribes and the tribes are going to tell you what policies and also the tribes also help you determine what your moral campus is. And so you will see shifting around on sort of moral judgment as well. But, yes, conservatives tend toward a little bit more respect for authority and loyalty.

SMERCONISH: One question from the brand new book, "Thinking in Bets." Pollsters took a beating in the last presidential election. Voters said, oh, they all said that Hillary would be the president and I've a new interpretation of that having read your book. You explain. Explain Nate Silver and how you view what transpired.

DUKE: Sure. So I think Nate Silver landed in the end on about 65-35. In other words, Clinton would win 65 percent of the time and Trump would win 35 percent of the time. Now, the way that the pollsters interpreted that is different than the way that the pundits interpreted that. So the pundits looked at that and said 65 percent, oh, I'm going to get up and tell people for sure that Clinton is going to win because pundits don't like to waffle. So they turned it into a certain outcome.

But if you think about 65 percent of the time versus 35 percent of the time, 35 percent is going to occur about as often as Monday, Tuesday and half of Wednesday occurred. So in that sense the pollsters were trying to tell you that a Trump win wouldn't actually be that surprising, it was really the pundits that did that. And it caused the problem because people think that the pundits and the pollsters are the same and so now they start rejecting polls as evidence.

SMERCONISH: You have explained my failures in prognostication to the 2016 cycle. When it was 35 percent or whether it was 5 percent, the fact is it was not 0 percent. That's the point, right?

DUKE: Right. Right. As long as it's not zero percent, we can't tell very much based on the outcome of one election whether Nate Silver is a good pollster or not. If you look across in record, he's actually quite good. And let's just remember 35 percent is a lot.

I guess I would ask you, Michael, would you be willing to bet your life on a 65 percent chance of living?

SMERCONISH: No, not my life. Thank you.

Hey, Annie, the book is great.

DUKE: OK.

SMERCONISH: "Thinking in Bets." Thank you for being here.

I want to remind everybody to go to smerconish.com and answer the survey question. Could you go one at a time, though? 10,000 people have already voted. You crashed my Web site.

Do you believe the White House's reason to hold back the memo was for concerns over security and law enforcement?

I cannot wait to see the result in that case.

Still to come, the judge who handed down what many call a lenient sentence in the sexual assault case of a Stanford swim team member now faces a recall vote. Is that fair? Is that good for the judicial system? We'll discuss.

(COMMERCIAL BREAK)

[09:43:09] SMERCONISH: You probably think you already know this story. And the widespread version goes like this. Brock Turner, a Stanford swim team member, sexually assaulted an inebriated and unconscious young woman next to a dumpster. The situation might have gotten even worse but for two graduate students from Sweden who intervened. Then despite a 12-page statement from the victim at sentencing, a superior court judge named Aaron Persky gave Turner a slap on the wrist.

A six-month sentence for which Turner only spent three months behind bars and was then set free. And now after nearly 100,000 Santa Clara County residents signed a petition, Judge Persky is facing recall on the June 5 ballot.

Serves him right, you are probably saying to yourselves. But is there more to the story?

LaDoris Cordell is a retired judge of the California Superior Court, a well-known advocate for women's rights, assistant dean at the Stanford Law School, and she thinks to recall Judge Persky would be a mistake.

Judge, how come?

LADORIS CORDELL, FORMER JUDGE, CALIFORNIA SUPREME COURT: Well, first of all, I'm speaking out because Judge Persky cannot speak out. He's not allowed under California law to talk about a case that is pending and the Turner case is pending in the appellate court. This recall is wrong for a number of reasons. And there are a growing

number of people, men, women, victims of sexual assault, rape victims, lawyers, judges, law professors, who are opposed to this recall and I'm one of them. This recall is targeting a good and fair judge who did absolutely nothing wrong and has demonstrated no history of bias.

This recall is a dangerous threat to the independence of the judiciary. It is terrible for racial justice. And this recall is based on lies, it is based on distortions.

SMERCONISH: Give me something from the narrative that I opened this segment with that's incorrect or some other aspect of the case that you think has been misrepresented nationwide.

[09:45:09] CORDELL: Well, two things. When you mentioned this case, people say, oh, you mean the rape behind the dumpster? There was no rape. And there was no sexual activity behind the dumpster. Brock Turner was convicted of three felonies that all arose from this one incident that happened in January 2015.

The judge who sentenced and it could have been any judge on the Santa Clara County bench, it happened to be Judge Persky, was -- had two options. One is to sentence Brock Turner to prison and the other is to jail. No judge on the Santa Clara County bench, and I served on that bench for almost 20 years, no judge would have sentenced Brock Turner to prison.

Why? Because he was 19 years of age, he had no prior criminal history whatsoever. There was no sophistication in this crime and both Brock Turner and the victim were highly intoxicated. This was not a prison case. So given that, the judge did what the probation officer, a female, recommended which was to sentence him to time in the county jail. The maximum of which would have been 12 months in jail.

This judge imposed a lawful sentence. And the recall people have basically co-opted the "Me Too" movement to make this feel like it's a part of that and it has nothing to do with "Me Too."

SMERCONISH: A Stanford Law professor who is leading the charge for the recall said that her problem is not that Turner didn't get the max, but he didn't even get the min. Is she right?

CORDELL: She's entirely wrong once again. And understand the leader of the recall is not a lawyer. She's never passed a bar exam. She's never had a client, she's never held a hearing, she's never presided or helped represented a client on a motion. So understand the people who are against this recall are people involved in criminal justice reform as am I. So what the judge could have done was impose, as I said, a prison sentence. It's not a prison case. This was a jail case.

Now what they are doing is that the law, it is really the judge. He did nothing wrong. What they want is the law to be changed that there'd be a mandatory minimum of prison and guess what, that has happened. The district attorney in our county who opposes the recall led the

effort to change the law in California. So the recall people got what they wanted. Why are they now picking on a judge who has been on the bench for 13 years, not one complaint ever sustained against him, not a problem with anyone, and all of a sudden he is this awful judge?

It's not true. They've got what they wanted. There is now a mandatory minimum and yet they are still picking on this judge.

SMERCONISH: A big final point. You made reference to the racial implications. As far as I know, everybody in the underlying facts here is whites. I think what you're saying, Judge, is that there are a lot of individuals, people of color, who are incarcerated or in the system somehow that could be impacted if in fact there is a successful recall of Judge Persky.

It's not fair, I only have 30 seconds, but address that issue.

CORDELL: They will be impacted. Black and brown people are going to be impacted because judges, if this recall succeeds, they're going to be looking over their shoulders and testings the winds to see if their decision on sentencing is going to be popular. And if they want to be lenient particularly in a sexual assault case, they're not going to do it and most of the people coming into the criminal justice system, at least in this county, are black and brown people. This is terrible for racial justice.

SMERCONISH: Judge, thanks so much for being here. I appreciate it.

CORDELL: Thank you, Michael.

Still to come, your best and worst tweets and Facebook comments. What do we have, Katherine?

"Smerconish, Judge Cordell, he could have done the maximum regardless of what law allows. The minimum doesn't have to being followed. Turner's regard for passed-out woman is disgusting and he never even acknowledged it."

Hey, I would never defend the conduct of Brock Turner in this case. As an attorney, I am mindful of some of the arguments that the judge who was just here raised because I think people don't appreciate the implications. The ramifications of what this might do in making judges fearful of using discretion going forward and who might be impacted in those cases won't be people who look like Brock Turner. I think that's one of the points that she was here to make.

And finally, I'll say this. there is a reason why we don't elect judges like members of Congress every two years. You know, it's normally, depending on the jurisdiction, a 10-year term. In the federal system, it's a lifetime term because we don't want judges to be subject to the whim of the electorate. This is the kind of case I think that our forefathers had in mind when deciding how long should a judicial term be.

[09:50:05] We'll give you the final results of the survey question from smerconish.com in just a moment. Do you believe the White House's reason to hold back the memo was for concerns over security and law enforcement? Tens of thousands voting.

(COMMERCIAL BREAK)

SMERCONISH: And time to see how you responded to the survey question at smerconish.com. Question, do you believe the White House's reason to hold back the memo was for security and law enforcement. Survey says, 13,981 votes cast and it had crashed so there were more than that.

Whoa, 91 percent no, 9 percent say yes. We'll leave it up. You can continue to vote all day long.

[09:55:08] Quickly, tweets, what do we have? "Smerconish, no matter how much you try to hide it, you're obviously a Trump hater. No wait, a Trump lackey." OK, that's Jimbo.

I assume there's going to be another tweet, go ahead, show me the next one from somebody who's going to say the complete opposite. It's amazing to me how much -- "Smerconish, you're giving Trump way more credit than he deserved, having a strategy on North Korea." Right, I'm lackey and now I'm giving him more credit than he deserves. More like dumb cop and really dumb cop.

I don't know. All I know is that perhaps the -- whatever it is that he's doing maybe having an effect on Kim. All of a sudden he's at the table with the South Koreans.

I'm out of time. I'll see you here next week. Catch us with us anytime on CNN Go and On Demand.

(COMMERCIAL BREAK)