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Trump's Last Chance To End Mueller Probe?; Will Trump Use Nyt Story To Fire Rosenstein?; Dershowitz: Trump Can Ask Rosenstein To Rescue Himself; Dershowitz: Kavanaugh Should Be Investigated; How Are Women Viewing The Ford-Kavanaugh Standoff? What Would Jury Selection For Kavanaugh Trial Look Like?; Biden's "Anita Hill Problem"; Kavanaugh's Friend Tries To Blame Assault On Another Classmate; Cosby's Sex Assault Sentencing Amid Kavanaugh Allegations. Aired 9-10a ET

Aired September 22, 2018 - 09:00   ET

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

MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Is this weekend going to be Trump's long rumored Saturday night massacre? New reporting might give him the cover to do it. "The New York Times" says that in May of 2017, Rod Rosenstein discussed invoking the 25th amendment and wearing a wire in his interactions with the President.

If true, President Trump has reason to fire Rosenstein. Then, Jeff Sessions. If Sessions won't do it, which could clear the path to firing Robert Mueller. I'll ask Alan Dershowitz if that's about to happen.

And the conformation battle over Brett Kavanaugh at a fever pitch with a new 2:30 P.M. deadline today about whether his accuser will testify the week before the Senate Judiciary Committee. Meanwhile, his friend, a former clerk to Justice Scalia, tweeted an alternate theory of the alleged sexual assault accusing an innocent lookalike before deleting it and apologizing.

More Kavanaugh fallout as Joe Biden considers whether to run for President in 2020. Might he now have an Anita Hill problem for his role in the Clarence Thomas hearings?

Plus, for Bill Cosby, could there be a worst week for his sentencing for sexual assault? Well, that's happening on Monday. What will the #MeToo factor be?

But first, what are we to make of "The Times" story on Friday claiming that in May of 2017, deputy attorney general Rod Rosenstein both discussed the possibility of invoking the 25th amendment and suggested he wear a wire in his dealings with the President? The only person who might be more upset than the President about this is Robert Mueller as this will only fuel the cries of witch hunt regarding his investigation. If you're the President, you were just handed your last best opportunity to try and end the Mueller probe.

Image this triple play. He calls AG Jeff Sessions and says, "Fire Rosenstein." When Sessions refuses, he fires them both. Then he installs a pliable AG who shuts down the Mueller probe. Farfetched? Not in this climate. I'm not endorsing that course. I'm just observing the cover that the story provides him. Hard to believe he'll pass it up.

At least one person told "The Times" Rosenstein brought up wearing a wire in jest and in other outlets are now backing that up, but "The Times" reported he said it twice.In a statement to "The Times", Rosenstein denied the story, calling it incorrect and factually incorrect and quoting anonymous sources based against the DOJ.

And then after the White House meeting, a second denial to "The Washington Post" saying, quote, "I never pursued or authorized recording the President and any suggestion that I have ever advocated for the removal of the President is absolutely false."

I want to know what you think. Go to my website, smerconish.com, this hour and answer this question. Will the President now fire Rod Rosenstein?

Joining me now to discuss this, Alan Dershowitz, Professor Emeritus of the Harvard Law School. His latest book is the case against impeaching Trump. OK, Professor, what will President Trump do now?

ALAN DERSHOWITZ, FORMER PROFESSOR AT HARVARD LAW SCHOOL: Well, if he's smart, he'll take advantage of this and not fire either -- any of these people. Not Mueller, not Rosenstein and not Sessions. Why? First of all, Sessions is going to be leaving after the midterms no matter what. As to Rosenstein, he certainly has the legal authority to fire him, the constitutional authority.

No president has to tolerate, in his midst, somebody who may have tried to pull off a palace coup. Though we ought to have hearings on this. Put him under oath. Put the other people who were in the room under oath. This is Kavanaugh reduct. We need to have facts rather than just denial, he said, he said, he said, she said.

But what he could do very plausibly is have his lawyers go to court and make a motion to recuse Rosenstein from any involvement in any case involving the President because he has a conflict of interest. He has two conflicts of interest.

First, he wrote the memo and, according to "The Times" report, wrote it willingly, authorizing the firing of Comey. You can't both investigate an obstruction of justice and be part of the obstruction of justice. But second, he has a conflict now because "The Times" reports that his goal is to be vindicated and the way he can be vindicated is by putting all the blame on President Trump.

So I think a court would look seriously on a motion to recuse and that wouldn't make it into a Saturday night massacre. It would make it into pursuing a legal remedy that everybody is entitled to pursue.

SMERCONISH: As I heard the first part of your answer, you'd like to see him under oath answering questions as to whether this is true.

DERSHOWITZ: Absolutely, and not only him under oath, everybody else who was in the room. Let them testify as to, A, what he said, what the tone was, are there any memos? Remember that his denial is a vague denial.

[09:05:02] He said I didn't pursue or authorize it. He might still have said it. I think it's true that he didn't pursue it. He might have said it just to see what the reaction is. But if that tells us something about his state of mind after having written the memo to fire -- to fire Comey, it tells us a great deal.

But I don't think anybody should do anything until the facts are determined, just like in the Kavanaugh case. People love to say I believe him, I believe her, I believe him. I believe him. You're not entitled to come to conclusions about belief until you hear the facts. Facts are stubborn things, as John Adams taught us 200 and something years ago.

SMERCONISH: I'm going to ask you about Kavanaugh in just a moment. Last night, again with regard to Rosenstein, here's something the President said in Springfield, Missouri.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: You've seen what's happened at the FBI. They're all gone. They're all gone. They're all gone, but there's a lingering stench and we're going to get rid of that too.

(END VIDEO CLIP)

SMERCONISH: I think I know what he's talking about with the lingering stench. I think that's a reference to yesterday's story. I have to believe that this morning, as you and I are conversing, that the conversation at Bedminster, which is where the President is located today, is one of, "Am I better served with or without Rosenstein?"

And maybe the calculus is, "I'm better leaving him there so that when the Mueller probe is concluded, I get to say, 'Well, who's surprised about the outcome? After all, you have this guy Rosenstein who wanted to wear a wire on me.'

DERSHOWITZ: I think that's the advice that Rudy Giuliani and his other advisors are giving him. Why create a problem for yourself by firing? Right now, Rosenstein's on the defensive. You're on the offensive. People are actually, for the first time, looking a little bit maybe sympathetic toward your claim that the investigation is not a completely objective one.

I think yesterday was the best day for President Trump and the day before. I think this Rosenstein revelation certainly plays into the hands of the Giuliani strategy that is that this is to be tried in the court of public opinion, looking toward a possible impeachment and now if you have a tainted prosecution by a guy who was trying to conduct a palace coup in violation of the 25th amendment.

I mean Rosenstein has to go back to school and read the 25th amendment. It was designed for a president who's been shot, who's had a stroke, who's completely disabled. It was not designed to let people in the administration take over the government because they don't like the way it's being run or because there's disorder in the White House. That's not what the 25th amendment was about.

SMERCONISH: On Kavanaugh, I underscore your comments about those weighing in believing one or the other. I'm so disgusted with members of the Senate Judiciary Committee who have already rendered a verdict in this case without hearing from the participants. I have to say, therefore, I was disappointed with the President putting his thumb on the scale yesterday.

DERSHOWITZ: I agree.

SMERCONISH: And saying well, if something of this significance occurred, she or her parents would have gone to the FBI, he presumes.

DERSHOWITZ: I think he's completely wrong about that.

SMERCONISH: Me too.

DERSHOWITZ: We know, from experts, that many, many people who have been subject to sexual assault, particularly when they're 15 years old at a drinking party that she shouldn't have been at, are going to be very reluctant. And people mature and I think we have to understand why she may have waited to make this revelation to her husband, to her therapist, but she has to be questioned.

And I think it would be best, by the way, to have him testify only after she testifies. She has to first make the accusation. They would have the accused first give his testimony. Only then would the accuser come forward.

I think it would be also good if they were both examined by sensitive, experienced litigators, rather than senators who are worried about their political futures and how they will look on television. And in the end ...

SMERCONISH: Well, yes.

DERSHOWITZ: We'll all have an opportunity to come to some reasoned judgment. And I'll tell you what I think it's going to be in the end, inconclusive. And then we're going to have to come to a decision about whether if we believe that there may have been something that was done wrong to (ph) 17 year olds and 15 year olds, by a man who led an exemplary life for the last 35 years. Should that disqualify or shouldn't it? That's going to be a hard moral choice, but we shouldn't make it without absolutely all the evidence coming in. Yes.

SMERCONISH: I agree with you ...

DERSHOWITZ: Continue the FBI background probe. Give them as much time as they need. Don't have any deadlines. This is too important for political considerations to come into being and we all have to pass the shoe on the other foot test. Would we be saying the same thing if this were a liberal President who nominated a liberal Justice to the Supreme Court who had a similar accusation? I always apply and pass the shoe on the other foot test. I want to make sure everyone else does that.

[09:10:03] This morning, Hillary Clinton talked about her investigation.

SMERCONISH: I'd like (ph) ...

DERSHOWITZ: She was absolutely right, but she was not the right person to make that argument because she didn't pass the shoe on the other foot test when her husband was accused and she participated in trashing the women who were making that accusation. You have to pass the shoe on the other foot test.

SMERCONISH: Listen, I like your comment relative to approach. I have been continually underwhemed by the quality of questioning by members of the Senate Judiciary -- hey, Dersh, I'd like to see you do it. I'd much rather intrust you or, frankly, me. I'll carry the bag to do the questioning of what's to come. Anyway, thanks for being here.

DERSHOWITZ: I'd rather have -- I'd rather have a sensitive woman experienced litigator who would the credibility on all sides, ask the questions.

SMERCONISH: What are your thoughts? Tweet me @Smerconish, go to my Facebook page. I will read some responses throughout the course of the program. Catherine, what do we have?

Smerconish, so will today report in the failing, but selectively useful "New York Times" that led me to conclude I need to find (ph)."

You know, it's so true. And Alt-Middle, listen, here's the story in the print version of "The Times". You're making a great point which is to say that the President, in firing Rosenstein, now needs to rely on the failing "New York Times". But it's even better than that because he also needs to rely on Andy McCabe and what McCabe's version of this was according to "The New York Times". So yes, there's a real conundrum in this forum.

I want to know what you think. Go to my website at smerconish.com. Answer this question, will the President now fire Rod Rosenstein?

Up ahead, the deadline is now 2:30 P.M. today. Will Dr. Christine Blasey Ford and the Judiciary Committee ever come to an agreement about her testimony accusing Judge Brett Kavanaugh of sexual assault? And with the midterms looming, will this effect the woman's vote?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Why didn't she come out sooner if she's telling the truth?

UNIDENTIFIED FEMALE: Tell me what boy hasn't done this in high school? Please, I would like to know.

UNIDENTIFIED FEMALE: You can't judge the character of a man based on what he did at 17.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:15:00]

(COMMERCIAL BREAK)

SMERCONISH: Two-thirty P.M. today. That's Chuck Grassley's latest deadline for a decision for lawyers for Professor Christine Blasey Ford to agree to terms for a Senate Judiciary Committee hearing on her sexual assault charges against Judge Brett Kavanaugh. To me, the looming showdown is reminiscent off a trial. Only this one will be decided in the court of public opinion.

Sadly, as I just said to Professor Dershowitz, many people, including senators, are reaching conclusions without even hearing from the parties. This week's "Wall Street Journal" NBC poll found that after these allegations surfaced, just 5 percent of democratic women support Kavanaugh, 17 percent of independents, but 70 percent of republican women still do.

What if it were a trial instead of a hearing before the Senate Judiciary Committee? How might different individuals react to the evidence? I thought why not ask a jury consultant what he would do in seeking a jury for a dispute of this kind? Joining me now is David Ball. He's a jury researcher and consultant for Malekpour & Ball. This is a little unfair to you, David, because you would first have a focus group, right? Look at the issues. That would be the approach and then you would reach some conclusions?

DAVID BALL, JURY RESEARCHER AND CONSULTANT, MALEKPOUR & BALL: Yes. You do a whole lot of research, a whole lot of focus groups in an important case like this that could go on for a good long time. But here, if you think about it, this is a whole lot easier, this case.

SMERCONISH: How so?

BALL: Well, anyone who is strongly pro-Trump or strongly pro-choice, I don't care how credible or without credibility the two people testify, they've already made up their minds and that's not going to change them. And the reverse is also true. If you're in the camp that's strongly anti-Trump or if you are strongly -- did I say pro-choice before? I meant if you were strongly pro-life, then you're -- it's a given that you will be in favor of Judge Kavanaugh.

But if it's -- if you're strongly pro-choice and if you're strongly anti-Trump, either of those two things, you've already made up your mind. You may not even know you've made up your mind, but those two drivers are so strong that you will not let you hear -- you'll not let yourself hear the other side with any credibility.

It's not that you'll make a dishonest choice to yourself. You'll think you're really being fair, but you will hear things differently. Each side will hear things differently and that's not going to change for anybody who's strongly in either one of those camps. For the middle, who are there ... SMERCONISH: I want to -- yes.

BALL: Sure. Go ahead.

SMERCONISH: I want to ask you a question about gender because I think that there's a perception that men will line up with Kavanaugh and women for Dr. Ford. My colleague, Randi Kaye, did a focus group with republican women in Miami. Here's a snippet of it that I find telling.

(BEGIN VIDEO CLIP)

RANDI KAYE, CNN CORRESPONDENT: A show of hands, how many of you believe Judge Kavanaugh when he says this didn't happen?

UNIDENTIFIED FEMALE: How can we believe the word of a woman of something that happened 36 years ago when this guy has an impeccable reputation?

UNIDENTIFIED FEMALE: There was maybe a touch. Can we -- really? Thirty-six years later she's still stuck on that?

(END VIDEO CLIP)

SMERCONISH: David, my experience as a trial lawyer shows that there's truth in that, in so far as women can be very circumspect of women. What are your findings in that regard?

BALL: Well, there's no way to ever choose any jury based on demographics. Women, men, old, young, black, white. You can't do it. You've got to go into the specifics. A woman who is pro-abortion needs Kavanaugh on the court. A woman who thinks that Trump is wonderful is not going to just make any decision against Kavanaugh. It's just not going to happen and that's true male or female. There's no difference there. The numbers will vary by the numbers of people for and against Trump and not just in this case, but in a lot of cases.

[09:20:00] But particularly here because abortion is probably the single most important issue driving, say, the evangelicals and it's also very important for people on the other side, as is the Trump thing all by itself. Demographics has got nothing in the world to do with hardly any case. It's always a blunder to ...

SMERCONISH: OK. What I'm hearing from you is it's all about -- and I think you meant pro-life, but I get the point.

BALL: Yes, I did. That's why I corrected myself. Yes. Yes.

SMERCONISH: You think it all comes down to -- it comes down to the abortion issue ...

BALL: Yes.

SMERCONISH: And the views that they hold relative to President Trump and if you know that going in, you probably know how they're going to look at the testimony. Thank you. I really appreciate your expertise. BALL: There's a few other things, but those are the basis. Thanks, Michael. Appreciate the time.

SMERCONISH: Let's see what you're all saying on my Smerconish twitter and Facebook pages. This, I think, is from Facebook. What have we got?

"They're going to crucify her and then appoint Brett Kavanaugh anyway."

Tracy Sheehan, I don't know where it ends up. I don't have an opinion. I don't know who's telling the truth. I want to see them. From what I've read of each of them, here's what I see. I see two quality people. Quality in so far as they're well credentialed, they've led exemplary lives, apart from whatever this incident may have been or not have been, they're surrounded by people who love and respect and admire them, they've achieved great things.

My suspicion is the same as Professor Dershowitz, that they will both make very credible appearances and that people will come to different conclusions. And that's why I'm trying to get straight in my own mind, OK, what's the standard by which we will judge them? Hey, remember this. If he's not successful in being elevated to the Supreme Court of the United States, his day gig today is pretty significant. A lot of law gets made in the circuit courts, especially in the D.C. circuit court. That too, is a lifetime appointment.

Still to come, as Joe Biden considers whether to run for president in 2020, does he now have to deal with whether he has an Anita Hill problem? I'll explain. And could there be worse week for Bill Cosby to be sentenced for his sexual assault conviction?Well, that's happening on Monday. Will the #MeToo environment shake the judge's decision?

(COMMERCIAL BREAK)

[09:25:00]

(COMMERCIAL BREAK)

SMERCONISH: As Joe Biden considers whether to run in 2020, might he turn out to have an Anita Hill problem? The wrangling over how to handle the sexual assault accusation against Judge Brett Kavanaugh has brought back memories of the 1991 confirmation hearings of Justice Clarence Thomas over which then Senator Biden presided as the chair of the Senate Judiciary Committee. Thomas' confirmation was delayed and nearly derailed by the late testimony of Anita Hill who said Thomas had sexually harassed her when she worked for him in two government jobs.

It was Biden who reopened the hearings to give Hill a chance to be heard, but also allowed Thomas to testify before and after her and didn't call any of the other women willing to testify on her behalf. Looking back on the hearings on "The Today Show" on Friday, the former Vice President said this.

(BEGIN VIDEO CLIP) JOE BIDEN, FORMER VICE PRESIDENT OF THE UNITED STATES: My biggest regret was I didn't know how I could shut you off because you were a senator and you were attacking Anita Hill's character. Under the Senate rules, I can't gavel you down and say you can't ask that question, although I tried. And so what happened was she got victimized again during the process.

(END VIDEO CLIP)

SMERCONISH: How might Biden's actions in 1991 be viewed in the #MeToo era, especially for young people who previously may not have been aware of Hill's story or Biden's role. Joining me now is someone who put that theory to the test. Corrine McConnaughy is a Professor of political science at George Washington University. Tell me what you do with your students in this regard?

CORRINE MCCONNAUGHY, PROFESSOR AT GEORGE WASHINGTON UNIVERSITY: Sure. So the students are encountering this inside a women and politics course where we talk all semester about how do women gain entry and how seriously are they taken inside of institutional politics. And so we encounter Hill inside of that framework and so we're watching the hearings in class to think about her and what the students notice is that they're encountering a Joe Biden that they are wholly unfamiliar with.

SMERCONISH: And so the impression of the person they regard probably as Obama's buddy is what? Negative? Harsh?

MCCONNAUGHY: Clueless, I think, is a major response over the years that I've seen from my students. There are gasps when he asks her to tell the panel what was the most embarrassing of the incidents that she alleged occurred. And then pushes her further after that to sort of suggest, well, we can't really help you if you can't tell us in graphic detail what happened and if you can't tell us in Judge Thomas' own words what happened in these incidents.

They view it as him asking her not only to relive her trauma, but really questioning -- he's himself, questioning her credibility and sort of setting her up to fail in the hearings and they're really struck by that.

SMERCONISH: Professor McConnaughy, I have that clip and I've seen it so many times this week, which is what made me want to quickly speak with you. Roll the tape. I want to ask you a question about it.

(BEGIN VIDEO CLIP)

BIDEN: Can you tell the committee what was the most embarrassing of all the incidents that you have alleged?

[09:30:00]

ANITA HILL, ACCUSED CLARENCE THOMAS OF SEXUAL HARASSMENT IN 1991: I think the one that was the most embarrassing was his discussion of -- of pornography involving these women with large breasts and engaged in variety of sex with different people or animals. That was the thing that embarrassed me the most and made me feel the most humiliated.

(END VIDEO CLIP)

SMERCONISH: Professor McConnaughy, it's uncomfortable to hear that these many years later but I'm not so sure that's Joe Biden's fault. I mean, it needs to come out. It's going to need come out this coming week, right?

I mean, someone needs to afford these women the opportunity to tell their story in whatever graphic detail is appropriate. You get the final word.

MCCONNAUGHY: Right. I think you're right. It needs to come out.

I think the biggest mistake that Biden makes is actually in the moment right after the clip that you played where he pushes back on her because he feels she's not using graphic language that was probably used by Thomas and suggest that if -- if she can't use the exact graphic language, that -- that her credibility is shot. And -- and what happens is that our own (ph) inspector (ph) runs with that in the hearings later on.

So I think what the difficulty is is giving the accuser not necessarily the benefit of the doubt but the ability to discuss what happened in their own words without suggesting that if you can't recall for a televised audience -- if you can't describe this in graphic detail in front of all of us, it probably didn't happen.

SMERCONISH: And for the record I should say I felt the same way about Senator Specter, that he too bore this undue burden because he asked probing questions. It may not have looked pretty but he was a former prosecutor who approached both Hill and Thomas in similar fashion trying to get to the bottom of it.

Anyway, thank you so much. I'm fascinated by the fact that millennials, you know, are looking at this and judging it through a 2018 lens which could become significant in 2020. Thank you, Professor.

MCCONNAUGHY: Sure. Thank you.

SMERCONISH: I want to remind you to answer the survey question at Smerconish.com. "Will the president now fire Rod Rosenstein?" Results at the end of the hour on that question. So please cast your ballot.

Up ahead, trying to help his friend Brett Kavanaugh, former clerk for Justice Antonin Scalia launched an alternate perpetrator theory on Twitter. And actually showed the name and face of another classmate. How did he think this was a good plan?

(COMMERCIAL BREAK)

[09:37:45]

SMERCONISH: I'd say you can't make this stuff up but apparently somebody did. A bizarre turn of the fight between Christine Blasey Ford's accusations of sexual assault against SCOTUS nominee Brett Kavanaugh a series of tweets from a former Supreme Court clerk tried to blame another classmate of Kavanaugh's for the assault. As you know Kavanaugh has said -- quote -- "I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time."

But this week one of his friends launched a theory on Twitter attempting to locate the house where the assault occurred and saying, maybe Dr. Ford is just blaming the wrong guy. The source was shocking.

Ed Whelan, a former clerk to Justice Antonin Scalia. The president of the Ethic and Public Policy Center. Whalen, who's been involved in helping advise Kavanaugh.

His close friends with both the judge and Leonard Leo of the Federalist Society who's been supplying the president with names with potential justices to nominate. Whelan tweeted a series of images from Google maps and Zillow about a possible house where the assault could have taken place. The presentation was slick, it was sophisticated and then he went so far as to provide the name of a class and team mate Brett Kavanaugh's and published side by side photographs claiming they look alike so she could have confused them.

I couldn't believe that he pointed a finger so specifically at a private citizen. Ford dismissed Whelan's theory in a statement late Thursday saying, she knew them both, and -- quote -- "There is zero chance that I would confuse them."

Whelan deleted the tweet thread, issued an apology which read, "I made an appalling and inexcusable mistake of judgment in posting the tweet thread in a way that identified Kavanaugh's Georgetown Prep classmate. I take full responsibility for that mistake, and I deeply apologize for it. I realize that does not undo the mistake."

What might he been thinking and who else was in the loop?

Joining me now is Zack Beauchamp, a senior reporter for "Vox" who wrote this piece, "Ed Whelan's tweets have created a second Kavanaugh scandal."

Zack, this is not Alex Jones we're talking about. This is a guy who went to Harvard College, graduated Phi Beta Kappa, Harvard Law School, law review, clerk for Scalia, and is a friend of Kavanaugh.

What do you make of it?

[09:40:00]

ZACK BEAUCHAMP, SENIOR REPORTER, VOX: Yes. Whelan is a deeply connected D.C. political operative. He knows the game. He knows how to play it and he knows all the players.

Most tellingly in my eyes, he was involved in the confirmation of two Bush era Supreme Court justices that's to say Justice Roberts and Justice Alito. And deeply so -- and so he knows all of the people and apparently according to Steve Schmidt, this Republican strategist who was involved in those confirmations Whelan was in the loop on the inner details of Republican strategy there.

It's very, very difficult to imagine that he didn't talk to anybody and indeed there has been reporting after his tweets for him came out that he spoke to at least one member of the Senate Judiciary Committee.

SMERCONISH: Well, the minute -- the minute that I saw this the series of tweets I thought of Orrin Hatch who told a CNN colleague of mine that maybe this was a case of mistaken identity after he had spoken to Judge Kavanaugh makes me wonder was this considered to be some kind of ace in the hole by the pro Kavanaugh forces and were more in the loop on it?

BEAUCHAMP: It's not at all a crazy theory. First of all we know that Whelan was working with CRC which is a major P.R. firm that's big in Republican circles. They ran Swift Boat Veterans for Truth back in the 2004 election.

And Orrin Hatch's spokesperson tweeted out earlier this week that people needed to watch Ed Whelan's tweets in the coming days. Now that's interesting the spokesperson later denied that he had any idea what was coming but why would he sign post Whelan tweets? I don't want to sound like a conspiracy nut myself. I don't have the evidence.

SMERCONISH: Right.

BEAUCHAMP: I don't want to make it any allegations. I don't know anything on the inside. I just know it has been publically reporter.

But I can tell you based on someone who's familiar with the way things work D.C. this stinks.

SMERCONISH: Well, it was also -- I would with never compound the mistake that Whelan made in this regard by outing the person that he pointed a finger at. But I'll say this. The level of sophistication -- I got the original tweet stream in front of me.

You know, the map of that -- the floor plan of the house and the actual stair case, like maybe this where -- it's a place and so forth, this was very methodically done. It was a very slick presentation.

BEAUCHAMP: Yes. Whelan is by all accounts a very good lawyer and a very good operative. I don't want to make this seem like it was some fly by, you know, the seat of your pants operation. Like this was really well thought out and planned but it seems like he blinded in judgment by the fact that Kavanaugh is a friend and that he's in a lot of trouble. And that he went to great lengths --

SMERCONISH: Right.

BEAUCHAMP: -- to expand on a really troubling and I think potentially libelous theory. SMERCONISH: And maybe I'm reading too much into it but if in fact Judge Kavanaugh said to Orrin Hatch, Senator Hatch, it's a case of mistaken identity. Might this be something Judge Kavanaugh believes?

BEAUCHAMP: Yes.

SMERCONISH: I think it's a fair question -- I think it's a fair question for him to be asked this week should it all unfold in the Senate Judiciary Committee. You get the final word.

BEAUCHAMP: Yes. That's why in my piece I referred to this as a second scandal because the questions of whether Kavanaugh was aware of potentially illegal action any ally of his -- potentially because we're not really sure at this point -- like that -- that really raises questions about his judgment, his willingness to smear a private citizen, middle school teacher to advance his own nomination that's not the quality you want a potential Supreme Court justice.

So if that's true --

SMERCONISH: Exactly. One other thing -- one other thing.

BEAUCHAMP: Yes.

SMERCONISH: A certain network ran with this story and I'm sure did not spend as much time telling everybody it was bogus as they did putting it out there and I worry about how many Americans are walking around today saying, well, you know, it was some other guy. After all I saw the picture. That's just my editorial comment.

Anyway, thank you for being here.

BEAUCHAMP: Thank you for having me.

SMERCONISH: Let's check in on your tweets and Facebook comments. Catherine (ph), what do we got?

"Smerconish, this is reprehensible and did Kavanaugh know about this? If he did then adios so much."

Denise, I don't know what he knew. You know, I think he has made denials as to having been in the loop on this but to go back to my conversation with (INAUDIBLE) this is an entirely appropriate question for him to be asked this week by the Senate Judiciary Committee. And I just hope they're not all bloviating for their campaign commercials for reelection but that they get into matters of substance and that they would be good listeners.

(INAUDIBLE) takes to be a good questioner in a legal setting to be a good listener.

Still to come, imagine against the news backdrop of Judge Kavanaugh and Ford. You're a public figure about to be sentenced for sexual assault, could there be a worst week for Bill Cosby to have his fate decided?

(BEGIN VIDEO CLIP)

LLOYD BRIDGES AS STEVE MCCROSKEY: Looks like I picked the wrong week to quit smoking.

Looks like I picked the wrong week to stop taking amphetamines.

I picked the wrong week to stop sniffing glue.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:49:07]

SMERCONISH: On Monday in the midst of this Kavanaugh controversy an 81-year-old legally blind man is due to be sentenced in a Pennsylvania courtroom. Bill Cosby could get anywhere from probation to 30 years for sexual assault. Will the decision be affected by the current highly charged political environment around the MeToo movement?

Joining me now veteran criminal defense attorney, William J. Brennan. Billy, I imagine if you were representing him you wouldn't like what you're seeing on TV these days.

WILLIAM BRENNAN, CRIMINAL DEFENSE ATTORNEY: And you're imagining correctly, Michael. The last thing I would want to see is this Kavanaugh MeToo 24-hour news cycle.

What Cosby needs this weekend, he needs a major weather event, a state funeral, the World Series. Really what he needs (INAUDIBLE) looking at that solar eclipse through like the milk bottles and milk cartons he needs a solar eclipse really, 9:00 Sunday.

[09:50:02]

But he does not need what's on TV now.

SMERCONISH: What do you expect him to get if the range as I just identified it as probation to 30 years?

You know the court house. You know the judge. You know these players.

Where is it going?

BRENNAN: I'm going to -- I'm not going to waste time for (INAUDIBLE). I'm going to tell you exactly what I expect him to get, seven and a half to 15 years.

And here's the breakdown. It is right in the middle of the guidelines, you know, the maximums very few get. The guidelines usually people do receive guideline sentences.

If you shoot a dart right in the middle of the guidelines, it's 30 months. Thirty if he stacks them for all three counts is seven and a half as a minimum, seven and a half to 15. And, Michael, you have got to remember, this is the same judge who sentenced a local lawyer one year ago on similar charges to 10 to 30 years in prison.

SMERCONISH: So the fact that this is all in the public limelight and it will be a courtroom I imagine full of Cosby victims must weigh on the judge as well as he looks out during the course of these proceedings.

BRENNAN: It does, but I think this judge, Judge O'Neill, who has been through this case now twice and he is a seasoned judge, I think he will be able to steel himself to that pressure. And he ruled -- I just saw (INAUDIBLE) and he ruled against any additional accusers testifying. But of course the five additional who testified at trial they can come in.

And that's going to be district attorney Steele's argument that although Mr. Cosby is only facing conviction and sentencing on Ms. Constand that he is a serial offender and he should be sentenced to a higher range or an aggravated range and that's going to weigh heavily in the sentence.

SMERCONISH: Obviously there will be an appeal. What does that mean in terms of Cosby's freedom at the end of the day Monday?

BRENNAN: His defense lawyers will immediately, I predict, file for bail, pending appeal.

First you go to the trial judge, Judge O'Neill. And you have to show that there's some type of viable appellate issue. The likelihood is low because O'Neill would look at probably the uncharged misconduct ruling, the other women who came in. Or self-incrimination ruling, the deposition testimony, and in essence if he says yes, looks like you have a good appellate issue there, he is second guessing himself.

I predict they will not meet with success there. But they may meet with success in the superior court. When we tried the Catholic Church case, Monsignor Lynn, the co-defendant to my client Father Brennan, was successful on the exact same issue. He didn't ask for bail but he got a new trial because the trial judge in the priest case allowed uncharged misconduct evidence and the higher court says it was too prejudicial. Cosby maybe successful getting bail on that issue.

SMERCONISH: Bottom line -- OK. Bottom line, what's the image we are seeing Monday night on television?

BRENNAN: I believe that you will see Dr. Huxtable, William Cosby, out the side door on his way to a state prison, and I believe he will be in a Pennsylvania issued jump suit by Monday night.

SMERCONISH: Bill Brennan, thank you for being here.

BRENNAN: Thank you, Michael.

SMERCONISH: Still to come. Your best and worst tweets and Facebook comments and the results. Have you voted yet at Smerconish.com. "Will the president now fire Rod Rosenstein?" Go do it.

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SMERCONISH: Time to see how you responded to the survey question at Smerconish.com. "Will the president now fire Rod Rosenstein?" Survey says with 7469 votes, close, 51 percent say no. 49 percent say yes.

By the way here's the answer. If the president thinks that Mueller has something devastating, that he uses this opportunity to clean house and get rid of Sessions and Rosenstein and Mueller, otherwise he leaves them around to provide fodder so when a damning report comes out from Mueller, he gets to say, the whole thing is rigged. After all, this guy wanted to wear a wire on me.

What's come in, Catherine (ph)? What do we have?

"Smerconish, if he fires him, nothing will happen. The Republicans will do nothing. On another note and story, is McCabe anonymous?"

"Is McCabe anonymous?" I don't think so. I thought you were going to ask a different question.

Is Rosenstein the anonymous source for "New York Times"? That's what I'm wondering.

What else?

"Your bias is so prevalent that you are blinded. Have you looked into the terrible death threats that Mrs. Kavanaugh has received, she is a woman. Fake news."

Hey Fawn -- Fawn, you've just exhibited your bias. That tweet should say, what a shame that both of these individuals and we don't know which one is telling the truth, what a shame that both of them are subject now to all of this ridicule, and scorn, and death threats online?

I note that you only pointed out that she's the victim of that. I don't know what to believe yet. Keep an open mind.

One more quickly. Quick, quick, quick, quick, quick. "You are carrying Trump's water also, Michael Smerconish."

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Yes carrying his water and yet I'm out to do him in. You say two different things.

Thank you for watching. See you next week.