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Smerconish

What Does Cohen Sentencing Mean For Trump?; Was What Cohen Pled Guilty To Not A Crime?; Is Biden Best Candidate For Democrats In 2020?; Do Dems Need A Fresh Face?; Interior Secretary Zinke To Step Down; Parent's Nightmare: Priest Criticizes Teen's Suicide At Funeral; U.S. "Entering Dangerous Period"; Babe Ruth, The Baseball Legend. Aired 9-10a ET

Aired December 15, 2018 - 09:00   ET

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

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MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. President Trump's former lawyer, Michael Cohen, sentenced this week and continuing to accuse the President of having directed him, but was part of what Cohen pled guilty to not actually a crime?

And a dire warning to the current Senate about our democracy from 44 former senators, Republicans, Democrats, Independents. Will the current Senate heed that call?

Plus, it was already a parent's worst nightmare, losing a child to suicide, but they say it got worse when the priest at their son's funeral denounced the way his life ended.

And in a new CNN poll, the leader of all Democrats eyeing a 2020 run is one of the oldest, but is former Vice President Joe Biden nevertheless the Democrats best candidate to beat Donald Trump?

And he hit more home runs than any player in his era and was one of our first national celebrity brands, but what was Babe Ruth really like behind the scenes? I'll talk to the author of the new best- selling biography.

But first, what does Michael Cohen's sentencing this week mean for the President? You already know that Cohen was sentenced Wednesday to three years in prison for tax evasion, bank fraud, campaign finance violations and lying to Congress. Now, in a moment, two perfect guests, a former chair of the Federal Election Commission and a member of the prosecution team in the analogous case of John Edwards.

You'll remember that Edwards sought to use a wealthy heiress to fix his mistress problem in a similar way to how the SDNY now thinks Donald Trump used his personal lawyer and the "National Enquirer," but Edwards, of course, was found not guilty on one count and the jury deadlocked on five others. So I want to drill down on the level of peril now faced by the President, regardless of what Special Counsel Robert Mueller may develop regarding Russia.

Michael Cohen has acknowledged being involved in illegal payments intended to influence the election, neither of which were disclosed and both in excess of contribution limits. He says he was directed to do so by the now President, which the President denies. Federal election law prohibits expenditures. That includes anything of value for the purpose of influencing an election, in this case the 2016 presidential.

So here's the critical question. Assuming the President directed the payments, what was his purpose? Was he acting to keep news of Stormy Daniels and Karen McDougal from the voting public in the build-up to the election? That's apparently what the government thinks it can show by the testimony of Cohen, "Enquirer" owner "American Media Inc" and its President, David Pecker.

Or, or was he trying to shield his wife and son from this scandal and protect his brand as a businessman and TV star in the event he lost the election? Would he have acted the same irrespective of his campaign for the presidency?

Now, that answer requires getting into Donald Trump's head. For the charge to be successfully prosecuted, whether by a jury after he leaves office or in a Senate trial after being impeached by the House, a finder of fact would need to be convinced that Trump acted with knowledge that he was violating the law. I would suggest that no matter how ominous this week's developments might appear, the President's fate on this issue is far from clear, which leads me to this week's survey question.

Go to my website at Smerconish.com. Answer this now. Assuming President Trump directed Michael Cohen, what was his primary purpose? Was it to keep news of his affairs from the voting public before the election or to shield his wife and son from the scandal and protect his brand if he lost?

As promised, joining me now, Bradley Smith, former Chairman of the Federal Election Commission, now Chairman of the Institute for Free Speech. He wrote the article for the "National Review" to which I referred, "Michael Cohen Pled Guilty to Something That Is Not a Crime." And Jeff Tsai. He was one of the prosecutors in the John Edwards case.

Bradley, you say that Michael Cohen may have pled guilty to something not a crime. Give me the short version.

BRADLEY SMITH, CHAIRMAN OF THE INSTITUTE FOR FREE SPEECH: Well, I disagree that the fundamental question here is whether or not he intended to influence the campaign. That is the statutory language, but it has an objective component and in fact, under FEC regulations and under the law as traditionally understood, the obligation has to arise from the campaign in order to be something that you pay with campaign expenditures.

So for example, if a businessman has lawsuits pending against his businesses, he thinks they're bogus, they have no merit, but he tells his company lawyer, "Settle these lawsuits. I don't want the distraction while I'm running for office and I don't want people thinking that I'm a heartless tycoon. Pay whatever it takes." [09:05:07] That doesn't convert those settlements to campaign expenditures. They are still personal expenditures which are required to be paid personally. So I really think the question is were these campaign expenditures? And I think most people don't think that paying hush money is a campaign expenditure and if it were, then we're going to be in a situation where -- for example, recently, we've had about 40 congressmen or so that we've been revealed that they paid sexual harassment settlements out of their office accounts.

What we're going to start saying is that those have to be paid from campaign funds, right? Rather than by the congressman personally for their sexual harassment. That's not what campaign funds are for. We're inverting the law and allowing the campaign funds to be used as sort of slush fund.

SMERCONISH: Jeff Tsai, respond.

JEFF TSAI, PROSECUTOR: Well, you know, campaign finance law is both highly technical, on one level, but it also fundamentally goes to the core issue of what our purpose is and our purpose is to have transparency and to try to mitigate as much as possible the potential corruptive influence of money and these things can be difficult lines to draw, extremely difficult lines to draw, but it doesn't mean we don't try to draw a line.

And I think that's what the prosecutors do in all of these cases, including the Edwards case, including in the Cohen and potentially other cases down the line, is try to look for where there is something that is, as the law describes, the primary purpose or a purpose being for a purpose of influencing the campaign.

SMERCONISH: Well, Jeff, I was -- I was going to say, and I'll ask you as a follow-up, what if his purpose was a little of both? I don't want the voters evaluating Stormy Daniels and Karen McDougal and nor do I want my wife being aware of this. So it was a combination of factors. Then where is the President's legal defense? Jeff Tsai.

TSAI: Well, you hit on, Michael, the horns of the dilemma right there. There is an issue that is to be debated. It was debated in the Edwards case as to whether or not, under the law, for purposes of contributions and expenditures, whether or not the law says it has to be, as you said in your survey, the primary purpose, the sole purpose or a purpose. And as we argued in the Edwards case, what we had to show was simply a purpose.

And to the -- to the extent there is this duality, I think it creates more difficulty for prosecutors to try to establish a case to -- as to the point about drawing a line, as to where that line is.

SMERCONISH: Bradley, something you made reference to in the "National Review" piece, what if the President did view this as campaign related and wanted to make it go away by the book? I guess he would have had to adhere to the $2,700 limitation and disclose it. And can you imagine the hue and cry if all of a sudden you had a candidate saying, "Hey, I paid hush money to make this go away and it was a campaign expenditure?" SMITH: Well, had it -- had it been done that way, he -- President Trump is not subject to the $2,700 limit himself. So he could spend his own money for it. Now, there would be questions about people advancing him money and so on, but let's kind of shove that to the side. He could spend his own money to do this. It would be reported, but how would it be reported? It would probably be reported as legal fees, the same way that the Clintons reported the payments they made to their law firm to pay the British spy, Steele, to dig up dirt on Trump.

And so I'm not sure how enlightening that would have been to anybody involved and I think when we really look at the bottom line here, I mean, you know, Jeff's point is a good one, right? It's a -- it's a tough question, but the FEC has -- in its regulations, has said it has to be an obligation that arises from the campaign. If it would have existed anyway, it's not a campaign expenditure and they specifically rejected the mixed use idea, that if it primarily benefits the campaign, but also benefits the candidate personally, it counts. So I think that's a real problem.

SMERCONISH: Hey, Jeff, it occurs to me that perhaps from a legal standpoint, the President might benefit from evidence that he had similarly acted and paid other women to go away long before he was a presidential candidate thereby strengthening his case this had nothing to do with the 2016 election. This is my MO to protect my brand.

TSAI: You know, it kind of highlights, Michael, what I think is some of the uniqueness of the situation here is that some of that evidence might, in fact, go to help establish that point, but perhaps go to reinforce other issues, which is to say that putting aside whether there was an MO there, that there was a real motivation in this particular situation, that the revelation of some of those things might serve to hurt the campaign.

And so to the extent that prosecutors are even looking at cases beyond what they've already done -- that's "AMI" and Mr. Pecker and Mr. Cohen -- I think one of the things they'll look at are some of those factual issues and with the timing of these things and the manner in which it happened before and how all of it mixes together here.

[09:10:05] SMERCONISH: Hey, Bradley, as a practical matter, if you are right -- I mean, look, you were the Chair of the Federal Election Commission and you think that Michael Cohen pled guilty to something not a crime. Why is a practical matter would he have then pled guilty? Because by all accounts, he had great legal counsel and himself is a lawyer.

SMITH: Well, that may be a question for Michael Cohen and maybe a better question for Jeff, but, you know, obviously people sometimes will cop pleas because they're going to get a better deal. He was facing a lot of potential jail time for other charges -- tax fraud and various other things. It may be that the U.S. Attorney was, of course, interested in getting at Trump and it's not like the U.S. Attorney's theory here is made out of, you know, nothing.

I mean, he's got -- as Jeff has said, you know, for the purpose of influencing, that's what he's looking at and he wanted to get Trump. He says to Cohen, that's what I want you to plead to and Cohen might have decided that was the best deal to take.

SMERCONISH: Final question for Jeff Tsai. What do you think the likelihood is that the President has already been indicted by the Southern District of New York under seal?

TSAI: Well, that is, I will tell you, beyond my ken, but what I will tell you is that if I know anything about prosecutors, including the men and women in SDNY, is that they will work tirelessly to find the evidence and to the extent that there is evidence beyond the cases that they've already established, you can look to things such as what kind of cooperation Mr. Cohen is providing right now, but also what kind of cooperation "AMI," "AMI" employees and Mr. Pecker are providing.

There is a reason why there is a non-prosecution agreement in place for those individuals and so the question will become whether or not they can -- they can find that evidence.

SMERCONISH: And Jeff, finally, as you well know, these are tough cases, right? Getting into the mind of the individual, in this case the President of the United States, no slam dunk for a prosecutor, as you learned with John Edwards.

TSAI: Not even close. There is a reason why the standard of proof for these kinds of cases knowingly and willfully, as the law says, is the hardest that the law has for purposes of proving this kind of case. Campaign finance cases go to the heart of our democracy and so they, rightfully so, should be difficult cases to prove. And so when prosecutors have that evidence and are willing to bring a case it's because they believe they've got the evidence to do it.

SMERCONISH: Bradley, Jeff, many, many thanks. Great expertise and we appreciate it.

TSAI: Thank you.

SMITH: Thank you, Michael.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I shall read some during the course of the program. What do we have, Catherine? From Facebook, "I feel like it's 1998 all over again. Hey, it's just about some sex."

Doug Ebersole, I'm going to get into that with Mary Landrieu in a couple of minutes time because if, in the end, this should go to the House, he should be impeached, it should go to the Senate, we have a trial on this, won't some say when the underlying conduct is sex, we don't think it's enough to throw somebody out of office? I think the likelihood is strong.

One more, if I've got time. "Smerconish, realDonald, you need a third option, Michael -- Both." Right. It perhaps is a combination of both and it's got to be the primary purpose, as I think was just made clear from my conversation with Jeff Tsai. Nevertheless, go to the website and vote at Smerconish.com. Answer this question, please. Assuming President Trump directed Michael Cohen, what was his, I said, primary purpose? To keep news of the affairs from the voting public before the election or to shield his wife, to shield his young son, from scandal and protect his brand if he lost?

Up ahead, in a new poll of all the Democrats eyeing a 2020 run, the leader is by far one of the oldest, but is Vice President Joe Biden nevertheless the Democrats best candidate to beat Trump?

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[09:15:00]

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SMERCONISH: So are age and experience a plus or a minus for the Democratic presidential candidate? Dozens are already vying for the 2020 nomination and there's been a lot of post-midterm hype about Beto O'Rourke, but in the latest CNN poll, the front-runner by a wide margin is former Vice President Joe Biden. Biden has 30 percent. Bernie Sanders is at 14 percent. O'Rourke is up to 9 percent and nobody else over 5 percent.

At recent appearance in Montana, Biden called himself the most qualified person to run, but he's run before, 1988 and 2008, with less than stellar results and on election day, he'll be 77.

Joining me now is "New York Times" columnist Frank Bruni who wrote the piece, "I Like Joe Biden. I Urge Him Not to Run." How come, Frank? Why do you urge him not to run?

FRANK BRUNI, COLUMNIST, THE NEW YORK TIMES: Because I think the stakes here are enormous and this is all about -- I mean, if you believe, as I do, that the Trump presidency has been a disgrace, the stakes here are making sure that Donald Trump doesn't get another four years and that means being ruthlessly unemotional about who has the best chance.

And when you really look at -- look at Biden, at his pass, you mentioned the two failed presidential campaigns. They weren't just failed campaigns. They were sort of debacles. He got -- he didn't get far in those races. He exited them early with basically no votes. Why would we believe that all this time later, at the age of 76, he's miraculously going to be a better candidate and run a better campaign than he has before?

There's a lot of history that shows Democrats do better with younger candidates and I just think when you add all of that together and you ask yourself the question, is this the safest, best bet to take on Trump and make sure he doesn't get another four years? I think the answer is no.

SMERCONISH: So if not by identifying a particular personality, give me the parameters. What does he or she look like? What do they need to have? BRUNI: Well, I think it's impossible to say because the most important thing is something we haven't seen yet, right? so we need to watch to see how everybody who's going to run and we don't know who's actually going to press the button at the end of the day. How do they come out of the gate? What's their message? How well are they communicating that specific message? That's going to be one of the most important things, if not the most important thing, and we can't see that yet.

You know, at this point before 2016, Donald Trump, who obviously ended up winning, was not on anyone's radar.

[09:20:03] No one thought he was going to run and we hadn't seen him come down that elevator -- that escalator and say something that, shockingly, had enormous resonance for the American public. We couldn't have anticipated that and we're at too early a point here.

You know, you mentioned the poll, which was fascinating. I went back and I looked at in December, you know, four years ago, the same point in the cycle, who was winning the polls? Well, Jeb Bush was way ahead in the CNN poll from December 2014. After him was Chris Christie and in third place was Ben Carson. None of those men ended up doing well in the primaries or getting far at all. None of those men is in the White House right now.

SMERCONISH: What you wrote for "The Times" generated a huge discussion and Ron Klain, who I think is a smart guy ...

BRUNI: Yes.

SMERCONISH: ... with the ties to the former VIP. In "The Washington Post" -- I'll put this up on the screen. Here's what he said in short order, "First, Clinton won more votes than Trump and nearly won the electoral college, even with Russian interference and James B. Comey's infamous letter, while no Democrat should repeat her 2016 campaign, her path to nearly 66 million votes should not be fully discarded."

In fact, let me stop right there. Does he not make a good point? I mean, she won the popular vote. Maybe she does have the right script?

BRUNI: No, he makes an excellent point and I would urge people not only to read my piece, but to read his because I think, you know, it's a good debate going on there and I really appreciate that he wrote his retort to me respectfully. At the end of the day, though, Hillary Clinton is not in the White House at the end of the day and it's a little frustrating when people say, but she won the popular vote, but it was just 77,000 votes in three states.

All of that is true. All of that doesn't matter if you're not sitting at the resolute desk and I want the Democratic Party to nominate someone who builds on her margins to a point where even if all of these variables we can't control come in, even if there is a sort of rigging like there was, you could, argue this last time, even so a Democrat is sitting at the resolute desk come inauguration day.

SMERCONISH: So his final point was one of saying, look, even if voters did undervalue governing skill in 2016 -- I'll paraphrase -- maybe after Trump, there's going to be pent-up demand to have somebody with a CV and who would be better than Biden in that regard?

BRUNI: Well, I think there are a lot of people who have very good CVs and I'm just saying when you look at what voters have responded to in recent presidential elections, Barack Obama hardly had the most impressive or lengthy CV of all the candidates. Donald Trump had the most unconventional CV of perhaps any of our presidential candidates. I think experience matters greatly.

It's going to make someone a better a better governor of the country, but at the end of the day, there's not a lot of proof that voters respond principally to a person's level of experience and I think when you look at the Democratic field, there are plenty of people who cross the experience threshold and allow us to ask other questions like how much charisma do they have? How well are they articulating their message? How well do they punch through the media? How well do they use social media? Beto O'Rourke is very good at that.

SMERCONISH: Did you hear from Joe?

BRUNI: I did not. One tends not to hear back in situations like that. Listen, I like Joe Biden and I do, as I said -- as the headline of my piece said, I respect him very much, enormously. this is just about what is the safest bet at a moment in this country's history where we have to make the safest bet and make sure that we are digging ourselves back out from under only four years of Donald Trump and not eight years of Donald Trump.

SMERCONISH: Thank you, Frank.

BRUNI: Thank you, Michael.

SMERCONISH: The results of the first CNN Des Moines Register Iowa poll revealed tonight right here on CNN, 8:00 p.m. Eastern. Tune in to see how the 2020 potentials are doing in this crucial state. Let's see how you're all going in terms of my Facebook and Twitter accounts. What do we have?

From Facebook, "Going with Biden is setting up the Dems for another loss in the election. Love Biden, but he's too darn old." Hey, Margie, how about the pairing of someone like Beto and Biden, right? You compensate for Biden's age shortcoming and Beto's youth and inexperience shortcoming. Just saying.

Still to come, they lost their teenage son to suicide and then sought compassion from a priest. Instead, at the funeral, he called their dead son a sinner. Now, they're fighting back.

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[09:25:00]

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SMERCONISH: Breaking news this morning, President Trump has announced in a tweet that embattled Interior Secretary Ryan Zinke will be leaving his administration at the end of the year. This happens amid federal investigations into Zinke's travel, political activity and potential conflicts of interest. We'll have more details on this at the top of the hour.

Now, it was already a parent's worst nightmare, losing a child to suicide, and then, according to the reporting in the "Detroit Free Press" and "Washington Post," they say it got even worse at his funeral.

18-year-old Maison Hullibarger was a freshman at the University of Toledo studying criminal justice. He had been a straight-A student and star linebacker at Bedford High School in Temperance, Michigan.

On December 4, he took his own life and then, because the priest at their parish didn't personally know Maison, his parents, Jeffrey and Linda, met with the Reverend Don LaCuesta before the funeral to discuss what they wanted in the homily, but to their horror, at the packed funeral on December 8th, LaCuesta mentioned the word suicide six times according to the "Washington Post."

He told mourners Maison may be denied admittance to heaven because of the way that he died and wondered aloud if Maison had repented enough in the eyes of God. Here's how Jeffery and Linda, his parents, recounted it.

(BEGIN VIDEO CLIP)

LINDA HULLIBARGER, GRIEVING MOM: He basically called our son a sinner in front of hundreds of people and judged him when he didn't even know him. Jeff went up to the pulpit.

[09:30:00]

JEFFREY HULLIBARGER; GRIEVING DAD: I didn't make a scene. I asked him to stop. I didn't make a scene. I did it respectfully.

L. HULLIBARGER: He didn't stop. He didn't miss a beat.

(END VIDEO CLIP)

SMERCONISH: The parents say that when the priest was done, he had the organist start playing to prevent anyone else from speaking. The funeral director had to walk over and stop the organist. Jeffrey, the father, then spoke, trying to steer the service towards what they expected the priest to do, celebrate their son's life.

As the casket was wheeled out, the couple told the priest he was not welcome at Maison's gravesite burial. If that weren't bad enough, according to their distress account in the "Detroit Free Press," it was the appearance at the funeral of the late son's former football coach, Jeffrey Wood, who according to the parents had bullied Maison and their other sons.

Wood had been asked not to attend and then when he showed up he was asked to leave. He did, but then he posted this on social media -- quote -- "If you need someone to blame, I'm your man. I'm your fall guy. This is how society is when things go not as planned. We blame others for our short comings. This tragedy is not about me or you. It's about looking in the mirror as a human being and being real and honest with yourself."

Hey, if what the parents say is true, maybe it's the coach who should be looking in the mirror. After school officials learned of the post, Woods' coaching duties were terminated.

And what of the priest? Catholic officials in the Detroit Archdiocese apologized in a statement -- quote -- "For the foreseeable future, he will not be preaching at funerals and he will have his other homilies reviewed by a priest mentor, in addition, he has agreed to pursue the assistance he needs in order to become a more effective minister in these difficult situations."

But the parents want LaCuesta removed from his post, as Jeff Hullibarger told a local paper, everybody seems to understand but the Catholic Church. A Go Fund Me for Maison's funeral expenses has already nearly doubled its goal.

Up ahead, the Senate gets a dire warning about our democracy in a letter from 44 former senators from both sides of the aisle. I'll ask one of the signers if she thinks they'll get anybody to listen.

And 100 years later he's still America's most iconic baseball player, but beyond the home runs, Babe Ruth had a hard scrabble life that shaped his outlook. Here he is in 1946 singing "Jingle Bells" to kids suffering from polio.

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CHILDREN (singing): Jingle bells, jingle bells, jingle all the way, oh what fun it is to ride in a one-horse open sleigh.

(END VIDEO CLIP)

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[09:37:34]

SMERCONISH: Forty-four former senators from both parties are warning America is entering a -- quote unquote -- "dangerous period." The ominous message comes in a bipartisan open letter to the currents U.S. Senate. They cite challenges to the rule of law, the constitution, our governing institutions and our national security and they explain -- quote -- "At other critical moments in our history, when constitutional crises have threatened our foundations, it has been the Senate that has stood in defense of our democracy. Today is once again such a time."

Among the signers, my next guest, Mary Landrieu, was the Democratic senator from the great state of Louisiana from 1997 to 2015 and joins me now. Senator, what worries you most?

MARY LANDRIEU (D), FORMER LOUISIANA SENATOR: Well, there's so many things but I want to begin by saying that this was a respectful letter to our former colleagues and it was signed by Democrats and Republicans just urging them to keep their eyes on the fact that we all swear an oath to the constitution, to the United States, and while we're all excited at times and passionate about our parties and our politics, that this is a time to really keep your eyes on the constitution.

So these investigations are coming to a head. The House has flipped now into Democratic control. And it's going to take the Senate, Republicans and Democrats, keeping their eyes on the law, keeping their allegiance to the constitution and to the country, not to their parties to really help us get through the next couple of months and years.

SMERCONISH: Here's another part of the letter that I'll read aloud.

"Regardless of party affiliation, ideological leanings or geography, as former members of this great body, we urge current and future senators to be steadfast and zealous guardians of our democracy by ensuring that partisanship or self-interest not replace national interest."

It sounds to me like you want the Senate to evaluate whatever evidence might be coming forward without regard to their party affiliation.

LANDRIEU: Absolutely. And that is the call of constitution to the Senate.

The House has the prosecutorial role. The Senate has the role of judge and jury. So you want the jury, if anything comes before them, to look at the evidence, what might be presented.

You know, this president unfortunately has many legal challenges facing him, his charges of potentially using his office for enrichment, potentially the charge of involvement with Russian interference in the election, obviously this campaign finance issue which may not be as important to the others, but at a time like this what the American people want to know is will the rule of law be upheld?

[09:40:19]

Will our institutions of our democracy operate independently? The Senate doesn't work for the president. It doesn't matter if it's a Republican president, a Republican Senate. The Senate does not work for the president.

The Senate works for the American people. The Senate upholds the constitution, just like the Supreme Court doesn't work for the president. They have their own role to play.

And I think that's what we were saying as respectfully as we can because we understand the pressures of wanting to be, you know, a proud Republican or a proud Democrat or holding up the flags of our individual parties, but at times like this, those flags have to stand down and the American flag has to stand up.

SMERCONISH: Well, I don't think anybody could disagree with that. Senator Landrieu, thanks so much for being here.

LANDRIEU: Thank you so much.

SMERCONISH: Let's check in on your tweets and Facebook comments and see what you are thinking. What do we have Katherine (ph)?

"Smerconish, yet these former senators are supporting a coup, weird."

How are they supporting a coup, Chris? Have you read the letter?

I mean, the letter is as Senator Landrieu just explained it's one that reminds incumbents, hey, your allegiance is to the constitution, not to the Democratic Party and not to the Republican Party. And what she's really saying and she got to it there in her second response is, should this get before you as triers of fact, you've got to be fair and impartial jurors.

I want to remind you to answer the survey question at my Web site right now at Smerconish.com. "Assuming President Trump directed Michael Cohen, what was his primary purpose? Was it to keep news of his affairs from the voting public before the election? Or was it to shield his wife and son from the scandal and protect his brand if he lost?"

I'll give you the results in just a couple of minutes.

Still to come this dying man under the Santa beard hearing wishes from kids with polio was the world's most famous baseball player, and his best selling biographer is here with amazing stories about Babe Ruth.

(BEGIN VIDEO CLIP)

BABE RUTH, WORLD FAMOUS BASEBALL PLAYER: I want to take this opportunity to wish all the children not only in America but all over the world a very merry Christmas.

(END VIDEO CLIP)

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[09:46:58]

SMERCONISH: He remains a century later the greatest baseball player of all time. When President Trump awarded Babe Ruth a long overdue medal of freedom this year he said he should have gotten it a long time ago. And this photo of the Babe went viral earlier this year, giving his signed autobiography to the then captain of the Yale baseball team. That would be one George Herbert W. Bush.

But beyond Ruth's baseball legend, 715 home runs, four World Series titles, a slugging percentage that nobody has ever topped, most people don't know many of the stories about the man, his tough childhood, his frequent trips to orphanages and hospitals and kindness to black ball players.

And when he was dying of cancer, December 1947, he dressed up as Santa Claus and met with children who they themselves were suffering from polio. Watch this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE CHILD: I want a rabbit.

RUTH: You want a rabbit?

UNIDENTIFIED MALE CHILD: Yes.

RUTH: A rabbit. Now, how can I get a rabbit? I'll give you one of these nice (ph) (INAUDIBLE) until we get a rabbit later.

UNIDENTIFIED MALE CHILD: OK.

RUTH: We'll think about the rabbit later.

UNIDENTIFIED MALE CHILD: Thank you.

RUTH: These whiskers are getting me down.

(END VIDEO CLIP)

SMERCONISH: All these aspects of the man explored in a fascinating new bestselling biography "The Big Fella: Babe Ruth and the World He Created." The author, Jane Leavy, joins me now. She was staff writer at "The Washington Post" and has also written best selling biographies of Mickey Mantle and Sandy Koufax, which is why it's her good thing that her grandmother grew up in the shadow of the real Yankee Stadium.

Am I right, Jane?

JANE LEAVY, AUTHOR, "THE BIG FELLA: BABE RUTH AND THE WORLD HE CREATED": Yes. She was a long lour foul ball from the real original Yankee Stadium.

SMERCONISH: I said this to you on radio and it's true. I took my own sons to see a Phillies game when the Giants were in town, Barry Bonds, a lot of controversy, and somebody in left field had a sign that said, Babe got it done with beer and hot dogs. Is that true?

LEAVY: Yes, it is. And the thing about the hot dogs is, you know, the reform school that he spent his childhood at which was called St. Mary's Industrial School on the western cusp of Baltimore City gave the kids meat only once a week. What do you think it was? Hot dogs.

It is absolutely no surprise to me that he would gorge himself on them for the rest of his life.

SMERCONISH: I'm -- nonetheless, well aware of your success. I'm nonetheless stunned by the fact that you thought there was new ground to be plowed.

What made you think that even Jane Leavy could write a book that would be a bestselling autobiography of a man about whom so much is -- or biography that so much has already been written about? LEAVY: I wasn't sure there was so I spent a year before signing on to do it reading everything that had been written about him, all the very good biographies that had come before. But what was missing from all of them was the first 20 years of his life. It was as if he stepped fully fledged out of St. Mary's Industrial School into an Orioles' uniform in 1914.

[09:50:05]

And when something is missing like that from everywhere, as a reporter, you know there's a story that hasn't been told that needs to be told. And to understand the big fella he became --

SMERCONISH: What was the eureka moment?

LEAVY: The eureka moment was probably when his daughter, Julia Ruth Stevens, who's now 102, told me that his parents had been separated and she said, well, I just thought everybody knew.

Well, of course, nobody knew, and Babe Ruth had good reason for hiding it. In fact his parents were divorced and it was a very ugly divorce, and the reason he was sent to St. Mary's had nothing to do with him being encourageable, nothing to do with him being an orphan. He was unwanted and after his parents divorced his father just sent him away.

SMERCONISH: Can I say that the book is as much about celebrity as it is about Babe Ruth and here's a lawyer's question. I don't know if you can see me. I am holding a Baby Ruth bar. How could he not get paid -- how could he not get paid for this?

LEAVY: So Babe Ruth was the model for modern celebrity. He comes along just at the moment when technology and marketing and P.R. conspire to amplify and redefine his fame, but he was so far ahead of everybody else that there was no law to protect him, no right of publicity as it is called, that came around in 1951, so that when the Curtiss Candy Company decided to rename their Kandy Kake Baby Ruth and argue implausibly that it was named after Grover Cleveland's dead daughter, Baby Ruth, who I think had died in 1904 he had no venue, there was no way for the law to make him whole.

He tried to file suit in patent court and he failed. And so he never made a dime off a candy bar that -- the most successful nickel bar in history that everybody still assumes was named for him.

SMERCONISH: Jane Leavy, continued success with yet another best- seller.

LEAVY: Thank you so much, Michael. Happy holidays.

SMERCONISH: You, too.

Still to come, your best and worst tweets and Facebook comments, and the results, you have one last shot to vote on this survey question.

"So assuming President Trump did direct Michael Cohen, what was his primary purpose? Was it to keep news of his affairs from the voting public before the election? Or was it to shield his wife and son from the scandal and protect his brand if he lost?"

(COMMERCIAL BREAK)

[09:57:01]

SMERCONISH: OK. Time to see how you responded to the survey question at Smerconish.com.

"Assuming President Trump directed Michael Cohen, what was his primary purpose? Was it to keep news of the affairs from the voting public before the election? Or to shield his wife and son from the scandal and protect his brand if he lost?"

Survey says, wow, 11,599 votes casts, 94 percent say hiding the news from voters. Only 6 percent say to shield family and brand. I mean, a different way of wording the question, would he have acted the same irrespective of the election?

And I raise this question to my guests in a strange way, he might benefit if in fact he had made payments previously to other women when there wasn't a campaign that he was running, right? If a payment were made by the now president in 2005 or 2010 that had similar facts it would give him the right to say, it was my M.O. to act as such, to make this go away regardless of any particular campaign.

I ask that question and I wrote that poll question because I think that's the clearest way you can distill the net impact of all the Michael Cohen news this week. Of course Mueller may have tons more coming in terms of the Russian probe or not, but with what we know thus far, that's the issue that may have to be grappled with by both the House and Senate or not.

OK, Katherine (ph), what do we have? A lot of the social media I am told this week.

"It had nothing to do with his brand. His brand already produced three marriages, infidelity and scandal. Those payments were to influence the election. Period. Remember the Access Hollywood tape."

You know, Brian and Finesse, it raises another question. And Brian Stelter raised this in his news letter this week. Would it have made an impact?

I mean, if he were able to sustain the grab them by the P tape and he was, the Access Hollywood tape, would any of this had put a dent in his armor at the time? I have my doubts.

I have my doubts that evangelical Christians who were not dissuaded from voting for him because o that tape, because he paid hush money to Stormy Daniels and Karen McDougal when (INAUDIBLE) said, oh, that's it. I've had enough of the man.

What else?

"Don't forget, Trump might not be the only Republican to run and might not make it to the general election." Mikael, I hope I am pronouncing your name correctly, you might be right, but, you know, give the man his just due. The president's approval rating among Republicans at this stage is what, 80, 85 percent? It's very hard to see a path for someone, say, like John Kasich.

One more if I have got time.

"What kind of people lambast a young man lost by suicide. I am sickened by this. Defrock him and fire the damn coach."

Debra, it's the story of the day for me.

[10:00:02]

Maison Hullibarger, 18-year-old from Michigan dies and that's the treatment he gets in his funeral. Disgraceful.

I will see you next week.