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Smerconish

The F-Bomb And The Divided Democrats; Nadler To CNN: "I Disagree" With What Tlaib Said; Did F-Bomb Expose An Unfixable Divide For Dems?; Will California's New Laws Go Nationwide?; Is Your DNA Test Being Used By Law Enforcement?; Solving Cold Cases With DNA; Student Told To Remove Anti-Nazi Sign; The Murder of Officer Daniel Faulkner. Aired 9-10a ET

Aired January 05, 2019 - 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. Well, that didn't take long. No sooner was the 116th Congress sworn in before the majority parties divide on a looming subject was laid bare.

An incoming Democratic congresswoman called for the President's impeachment dropping the F-bomb, a tactic sure to build her Twitter following and fundraising, but is it a winning strategy for a House now led by Nancy Pelosi?

Plus, California often ahead of the nation and not just in social trends and pop culture, will its new set of laws about everything from gun ownership to sexual harassment to plastic straws end up going nationwide?

And while everyone's happily sending off their DNA to uncover their family trees, they're also helping law enforcement. Does that benefit outweigh privacy concerns?

Plus, when someone drew a swastika on a Hanukkah decoration in her dorm, a college student hung an F Nazi sign and then was asked to remove it because it, quote, "wasn't inclusive." Of who? Nazis?

And 38 years after the killing of a Philadelphia cop and 11 years after I co-wrote a book with his widow, the case of Mumia Abu-Jamal back in court. Everything about this case is controversial except the underlying facts.

But first, Democrats were much more successful during the campaign than after in masking the divide in the party as to whether to pursue impeachment. Just hours after being sworn in, Democrat Rashida Tlaib of Michigan, the first Palestinian-American woman in Congress, was speaking at a MoveOn event in Washington. She not only called for the President's impeachment, but she dropped the F-bomb.

(BEGIN VIDEO CLIP)

RASHIDA TLAIB, UNITED STATES REPRESENTATIVE: And when your son looks at you and says, "Mama, look, you won, bullies don't win." And I said, "Baby, they don't because we're going to go in there and we're going to impeach the motherf***** (ph)."

(END VIDEO CLIP)

SMERCONISH: This is in stark contrast to the measured tone sought by more moderate and veteran voices in the party. For example, on CNN Friday, New York Congressman Jerry Nadler, now the Chair of the House Judiciary Committee, said this about Tlaib's remark.

(BEGIN VIDEO CLIP)

JERRY NADLER, UNITED STATES REPRESENTATIVE: No, I don't -- I don't really like the kind of language, but more to the point, I disagree with what she said. It is too early to talk about that intelligently. We will -- we have to follow the facts. We have to get the facts.

(END VIDEO CLIP)

SMERCONISH: So on my Sirius XM radio program yesterday, I posed this survey question. Which Democratic member of Congress has the right approach? Nadler's wait and see what the Mueller investigation comes up with or Tlaib's we're going to go in and impeach the MF-er?

When we tweeted out the survey question, I was shocked that Congressman Nadler quickly felt compelled to tweet a reply to me saying, "What I said was that we need to follow the facts and get all the facts. That is why we must protect the Mueller investigation and why it is so important for the House Judiciary to do our own investigative work as well and we will see where that leads. I know Rashida Tlaib agrees."

Really? Does she? And why did Nadler see fit to add a clarification? This early episode, I think, speaks volumes about the state of Democrats both in the new Congress and looking toward 2020. Namely, they don't want the perception of a division, a radical wing and a moderate wing, but clearly it exists. And Nadler, respectfully, is flat-out wrong when he says that Tlaib, quote, "agrees." She would never have made the MF-er comment if that were the case.

Which leads me to another thought. Although new Speaker Nancy Pelosi now wields the gavel, she actually has a harder job than Minority Leader Kevin McCarthy in terms of holding her party's caucus together. It's much more disparate, like herding cats. The Democratic base, they love what congresswoman Tlaib said. I predict she raises a boatload of money off that clip and that the number of her Twitter followers explodes.

Friday morning, she had 141,000. When I last checked, it had already gone up 50 percent to 211,000. But on the other hand, "Fox News" being able to endlessly play a clip of a female Muslim Democrat calling Trump an MF-er, that's great for him. The same way that if impeachment comes before Mueller, it'll also help Trump more than hurt him. It helped Bill Clinton back in the day and we're still in the first week.

By the way, we reached out to both Congresswoman Tlaib and Congressman Nadler to come on the program, but they turned down our requests. Go to my website because the survey question is still posted. [09:05:01] Tell me. Which approach do you think is best for the Democrats? Jerry Nadler's we'll have to wait and see what the Mueller investigation comes up with or Rashida Tlaib, we're going to go in and impeach the MF-er.

Joining me now to discuss, journalist and foreign policy expert Rula Jebreal, who I should note conducted Jamal Khashoggi's last public interview, and John Bresnahan, Capitol Bureau Chief for "Politico." He co-authored this piece, "Dems livid after Tlaib vows to impeach the MF-er. Party leaders fear such explosive talk only gives ammunition to the GOP."

Rula, let me give you your props. 2015 in "The Washington Post," you saw it coming. Quote, "It would be a terrible mistake for America's political establishment to dismiss Trump's populist appeal and presume him unelectable." So you get the whole populist movement. Are we not watching how reelection takes place when you call the President, as an opponent of his, an MF-er? Meaning, doesn't that fire up his base and help him?

RULA JEBREAL, FOREIGN POLICY ANALYST: Good morning, Michael. There's two aspects to it. There's the fake outrage of those people who watched the President over and again use vulgarian words and now they're using this clip to stigmatize the first -- one of the first Muslim women in Congress. However, I -- regardless the style, let's debate the substance and the substance that sadly, whether we agree or not, this will fire up her base on one end. On the other end, it give us a glimpse, a window, in where the Democratic Party fight will be in 2020.

The issue with this -- exactly as you said. I predicted Trump victor based on his comm strategy, communication strategy, and his -- the language he deployed. However, if some Congress men and women -- and remember others have introduced articles of impeachment already -- other Democrats.

However, we focus on the one Muslim woman for a specific reason. And "Fox News" is focusing for a specific reason because it helps them because it shifts the focus from Trump policies that are hurting Americans and betraying American workers, farmers, soldiers overseas and his erratic behavior.

It shifts to the debate over impeachment and I don't think this helps Democrats in 2020 because in order for Democrats to win in 2020, they have to appeal to these undecided voters, to the Independent voters and to some moderate Republicans who believe that in order to win, you have to deploy different strategy, different language, a vision of hope versus a vision of hate and above all, don't delegitimize a person that was legitimately elected.

In order for Trump to win, he needs to shift the debate from his failures, but in order for Democrats to win, they need to appeal to those Independent voters. For me, the best way to answer is let the public opinion choose. Let them vote him out. They already rejected his policies. SMERCONISH: John, the President tweeted -- in fact, I'll put the tweet up on the screen -- about this. How do you impeach a President who has won perhaps the greatest election of all time, done nothing wrong, no collusion with Russia, it was the Dems that colluded, had the most successful first two years of any president and is the most popular Republican in party history 93 percent," he said on Twitter.

And my point to Rula, which I think she largely agrees with, is if, if, in fact, his standing is at 93 percent, it's probably because his base looks at a Muslim woman now elected to Congress calling him an MF-er and that trumps, pun intended, any factual conversation. Your thoughts, John?

JOHN BRESNAHAN, CAPITOL BUREAU CHIEF, POLITICO: Well, I don't think that Rashida Tlaib's comments -- that Congresswoman Tlaib's comments have any impact on what Trump's base thinks of him. I mean, they didn't know who Rashida Tlaib was until, you know, a day ago so they had no idea who she was.

And Tlaib has -- when she came in, if you'll note, she had already written an op-ed before she was sworn in calling for Trump's impeachment. She is somebody who has all along -- she campaigned on this. This is a district that Hillary Clinton won with 79 percent. I mean, this is a message for her voters that is popular. So I don't -- I don't think that ...

SMERCONISH: OK. John, but then why is Jerry Nadler so sensitive when I accurately quote his words and quote her words and does he want to mask this divide that clearly exists in the party?

BRESNAHAN: Oh, there's clearly -- there's clearly a split, but I think it's a manner of degree. I mean, no Democrats on the Hill like Trump or don't think there'll be some action taken against him after the Mueller report.

[09:10:03] And that's the key and you mentioned it in your introduction. I mean, you know, the split here is before the Mueller report or after the Mueller report and there's -- and Speaker Pelosi and Chairman Nadler and the senior leadership of the House Democrats is not going to take one move on impeaching Trump before that.

And I think they do find it really distressing that a brand new member of Congress is caught on, you know, video cursing out the President. Not -- you know, I think it just -- it played exactly into Trump's hands. He could use it, he could exploit it to rile up his own -- his own voters and "Fox," you know, did what "Fox News" will do with it.

So I mean, I do think that they -- you know, this is a tempest in a teapot. You know, next week we're going to be talking about a whole new Trump scandal or something else Trump has done. And Trump also, let's face it, he used this to distract somewhat from the government shutdown.

JEBREAL: Yes.

SMERCONISH: So let me, to that point, show what the President said in the Rose Garden. Catherine, roll that tape if you would.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I thought her comments were disgraceful. Using language like that in front of her son and whoever else was there, I thought that was a great dishonor to her and to her family. I thought it was highly disrespectful to the United States of America.

(END VIDEO CLIP)

SMERCONISH: And Rula, to a point that you made earlier, he is, after all, the guy who said, "Grab them by the P." It's not like he has a clean bill of health to now be the arbiter of what's appropriate. Go ahead and respond.

JEBREAL: Yes. I mean, look, the person is the last person to talk about decorum or to talk about civility. He called a woman horseface, he called black athletes son of B, he called African countries all kind of names. I mean, seriously, but look at what he said at the end, and I think we need to focus on his communication strategy.

He keeps using and saying it's a disrespect for the American people as if Rashida is not an American-Palestinian -- Palestinian-American, but she's an American citizen first and foremost. So he keeps indirectly and directly using this divisive language of us versus them. Who are them? Black, African-Americans, Latino-Americans, Palestinian- Americans, athletes and others. Whoever oppose him is them.

However, again, I think Democrats, in order to win in 2020, they need -- I don't agree that they all need to say the same things that Nancy Pelosi and others. I mean disagreement is OK, but the strategy and the communication strategy for whoever will run for the presidency have to be appealing to those Independent voters so that they can galvanize them as much as they can excite and galvanize their base. That is the major issue here. And look, it should be a dream campaign. Trump keep giving you gifts after gifts. So run on his failures.

SMERCONISH: Hey, John, a quick final thought if I may. It used to be that the way you attained seniority and stature in Washington ...

BRESNAHAN: Right.

SMERCONISH: ... was to get elected, be a backbencher, rise through the ranks. Today, you say something incendiary, you raise a ton of money and get an enormous social media following. It may be a tempest in the teapot today, but I think she, Congresswoman Tlaib, will benefit. No?

BRESNAHAN: I think she will get -- clearly her exposure inside the Democratic will go up, but, you know, the strategy you laid out was exactly how President Donald Trump got elected.

JEBREAL: Yes.

BRESNAHAN: I mean, it's not like Tlaib -- Tlaib invented this. This is what Trump -- you know, he is a master of it. JEBREAL: Further (ph).

BRESNAHAN: And also -- and, you know, look, Trump is a master at counterpunching, too. I mean, he's very good at counterpunching. If you get in there and and start calling names and stuff, that's the kind of fight Trump wants.

SMERCONISH: True.

BRESNAHAN: And I think the Democrats will --the Democratic leadership will avoid that. Look what they've tried to do during the shutdown. They're not calling him names. They're not getting in there and trying to do a daily back and forth with Trump. So I think they find what Tlaib did pretty unhelpful, but I do think that it's -- you know, we're going to hear a lot more from Mueller and other issues before and we'll, you know -- you know, Tlaib's -- this incident will seem minor, you know, in a month from now. I'll come back in a month from now and we'll talk about it.

SMERCONISH: We will. John, Rula, thank you very much. I appreciate you both being here.

JEBREAL: Thank you.

BRESNAHAN: Thanks for having me.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I will read some responses during the course of the program. "Smerconish, Representative Rashida Tlaib's comments are far less controversial than @realDonaldTrump." Oh, granted. I just said to Rula Jebreal, you know, this is the guy who famously said, "You grab them by the P." It hasn't worked when you fight him at his own level.

[09:15:00] Anybody remember Marco Rubio? Any remember the, you know, invocation of the size of Trump's hands? Nobody's been able to beat him at that game thus far. I'm just arguing that when you call him an MF-er, you're igniting that base which otherwise might not be as enthused in the next cycle as they were in the last.

And don't forget, I want to know. Go to my website at Smerconish.com because this remains the poll survey question of the day. Which Democratic member of Congress has the right approach? Congressman Nadler. we'll have to wait and see what the Mueller investigation comes up with. or the freshman member from Michigan. we're going to go in and impeach the MF-er?

Up ahead, California just launched a bunch of new laws on everything from plastic straws to sexual harassment deals. They may not affect you yet, but what starts out west often migrates to the rest of the country.

Plus, the state has now opened its primary voting on the same day Iowa begins its caucus. How will that affect candidates like Elizabeth Warren who's already in Iowa trying to increase her name recognition?

And maybe you got one of those DNA sample kits for the holidays so you can learn more about your family roots, but by submitting it, you might be helping the police capture a distant relative. Are you cool with that?

(COMMERCIAL BREAK)

SMERCONISH: That California makes huge cultural contributions to the nation, undeniable. Think hula-hoops, frisbees, skateboards, McDonald's, arcade games, the jacuzzi, Spicoli (ph). How about the Red Hot Chili Peppers, just to name a few? Well, the same is often true for the Golden State's political contributions. Even if the nation sometimes sneers in California's directions, many laws that take hold there have a way of soon migrating across the country. Think no-fault divorce, the decriminalization of pot, the non-partisan drawing of political boundary lines.

And no, not everything that comes from California is necessarily liberal. Anybody remember Howard Jarvis and Prop 13 which froze property taxes?

[09:20:03] Or Proposition 209, the ban of affirmative action or Prop 8? That was the ban on same-sex marriage that was eventually struck down by the Supreme Court of the United States. If you want to see the nation's future, you should pay attention to trends in California where this past week, several new laws took effect.

As my next guest co-authored for the "L.A. Times," quote, "Hundreds of new California laws take effect on January 1, imposing a raft of new mandates on scores of issues, including rules dictating when plastic straws will be handed out at restaurants, that workplace sexual harassment settlements are disclosed and that set new limits on the ownership of guns." Joining me now is John Myers. He's the Sacramento Bureau Chief of the "L.A. Times." John, what is it about your state that gives it this characteristic of being on the vanguard?

JOHN MYERS, SACRAMENTO BUREAU CHIEF, LOS ANGELES TIMES: It's a really good question, Michael. I've spent, I think, my entire career trying to figure that out. I mean, first of all, let's point out that California is almost a nation state of 40 million people. I think that Californians have embraced, as part of their own cultural DNA, this idea that they want to be first, that they want to experiment with things and I think, certainly, their legislatures here in the capital city of Sacramento feel that way a lot.

I spend a lot of time watching these lawmakers react and consume news content and what they're hearing from their constituents and what they're reading about, what they're hearing on your show and so I think that a lot of times they are looking for ways to improve the experience. Some people in America may not think it's an improvement, but certainly they are very active and hundreds and hundreds of new laws that took effect in January, many of which I think are an interesting conversation starter for the rest of the country.

SMERCONISH: Give me some examples. What is it that you're focused on?

MYERS: Well, some of the ones that we wrote about in the newspaper that you -- that you cited just there, I think, are some of the more interesting ones. I mean, let's talk right at the top about this limit on plastic straws in restaurants. This is a conversation starter.

It's really important to point out to people this is not a ban on having a plastic straw when you sit down in a restaurant and it only applies to full-service restaurants. It doesn't apply to convenience stores or fast-food restaurants. It simply says you've got to ask for the plastic straw and I can tell you before the law went into effect, I went into a restaurant that had a paper styled straw and it worked fine for me.

But this is supposed to be the way to talk about the amount of plastic that's going out in the environment. Governor Jerry Brown, when he signed the law, simply said maybe people will stop and think if they have to ask for the straw and I think that's what they are hoping to do. I don't know that that's going to play in Peoria or somewhere else in the country, but certainly it is an interesting conversation point. As are, as we said, a whole host of other laws.

SMERCONISH: You know that there's this perception that they're all nanny state motivated. I don't think that's actually the case, but you know better. You're there and you cover this day-to-day. Do you deserve -- does California deserve the nanny state moniker?

MYERS: Well, of course that's going to depend a little bit on your own political perspective, right? I mean, there are conservative Republicans and there are conservative Republicans in California who think that the state overreaches here.

I will tell you that one of the most interesting insights into this whole issue of how far the overreach -- I guess, is the -- is the whole thing behind the nanny state -- comes from Jerry Brown, the man who is going to be departing as governor in a matter of days who has served four terms, longer than anybody of California as governor, who wrote in one of his veto messages in the last few years, "Not every human condition deserves a law."

And I think that's an interesting point to start from. It doesn't always end up that way, but I think that conversation inside the law making process is an important one. Of course, we do end up with a lot of them, but I do think it changes what the details are in these laws, Michael.

As I said, like with the plastic straws or one that talks about soft drinks for children's kids meals, these aren't bans. These are shifting the responsibility from one party to the other to have a conversation.

SMERCONISH: Well, may I say as a lifelong East Coaster, I think we're all fortunate to have California as a lab to see how these things work out. I'll give you a great example. This ban on private settlements for sexual harassment cases, I get the intention, but as a trial lawyer, it occurs to me that some women may themselves wish to settle a case and now you're going to force them out into the spotlight. There might be, my point is, unintended consequences to some of the best of initiatives and we get to see, well, how did it work in California? You get the final word. MYERS: Well, and I was just going to say I think that law in particular is really important to point out something here that I think some of the way it's being construed or presented is that it is an outright ban on making these confidential. The way the law seems to read -- I'm not a lawyer, but the way I looked at it with the ones who wrote it is that it places -- it shifts the burden from who gets to make this decision from an alleged assailant in a sexual harassment case to the alleged victim.

[09:25:02] The victim can still keep it confidential, but this effort to have some transparency, certainly in the wake of the MeToo movement and all the things we saw and a California element to this with the accusations against Hollywood producer Harvey Weinstein, those were cases where those alleged victims did not have the ability to bring it forward. This law would say these could be disclosed or that they -- or not have to be confidential, which I think is a -- is an important part.

SMERCONISH: That's an important distinction. I'm glad you made it. John, well done. Thank you so much for being here.

MYERS: Thank you.

SMERCONISH: Hey, still to come, when a student hung a sign to protest a swastika drawn in her dorm, she was criticized for not being exclusive. Really? Inclusive.

And more than 15 million have taken consumer DNA tests from companies like Ancestry.com and 23andMe. Should law enforcement be able to easily access your samples?

(COMMERCIAL BREAK)

SMERCONISH: Consumer DNA testing is all the rage. More than 15 million people have taken tests from companies like Ancestry.com and 23andMe. This science has been uncovering all kinds of secrets, which is both good and bad news. Many unsolved crimes have been solved because of the science, but some privacy experts worry at what cost.

[09:30:03] You might not have directly contributed to a DNA database but if a relative of yours has, you too can be found and it takes just a small percentage of contributors of a particular decent in order to map that entire population.

My next guest is a genetic genealogist who has worked for the PBS television documentary series "Finding Your Roots with Henry Louis Gates Jr." since 2013 on which celebrities learn their previously unknown heritage. CeCe Moore is the chief genetic genealogist at Parabon. She has recently joined forces with law enforcement having already contributed to 25 successful identifications including the 1987 double murder of a couple in Snohomish County, Washington.

CeCe, thank you so much for being here. Tell me about that Snohomish case. I know that it has not yet gone to trial but how was it cracked? CECE MOORE, CHIEF GENETIC GENEALOGIST, PARABON: It was the first law enforcement case that I used my genetic genealogy techniques on. What happens is the crime scene DNA is uploaded to a public database called GED Match. We're not using the consumer DNA sites like Ancestry DNA or 23andMe. We're just using that one public database and that crime scene DNA is compared to everyone else who's already contributed their DNA to that database voluntarily.

From that we're looking for people who share significant amounts of DNA with that unknown suspect.

SMERCONISH: So in that particular case am I right that it was the second cousin who had DNA in that data base and that's what led to I guess I should still say the alleged double murderer?

MOORE: Right. There was actually two separate people who shared enough DNA to be second cousins one ended up being a true second cousin and the other one was a half first cousin once removed.

SMERCONISH: Now presumably, CeCe, that individual or those individuals went looking for information either about their health or maybe their family tree or both never intending that it was going to lead to the arrest of a distant relative which I guess raises some of the privacy considerations.

MOORE: Yes. That's correct. In early May GED Match, the Web site that we're using, changed their terms of service to warn their customers or their participants that law enforcement is using that database and they gave people the option to privatize their DNA or remove it if that was something they weren't comfortable with. But I'm sure it's still a surprise to anyone who ends up having a close relative arrested because they decide to test their DNA and upload it to GED Match.

SMERCONISH: Listen, I'm totally into genealogy. I love this subject and I've spent years trying to map my own family tree. So I've tried to paid interest to the advancement although that's -- that's awfully difficult in terms of how rapidly this field is changing.

The thing that has surprised me the most and I'd love it if you would speak to it is how few of us it would take to spit in the jar, so to speak, to map an entire segment of society?

MOORE: Yes, we hit critical mass when we get just a small percentage of a certain population tested. So right now for the northwest European population, we're really at that critical mass where most people can be identified already in our databases particularly when we're using genetic genealogy to identify birth families of adoptees. They can spit in that tube and access Ancestry DNA or 23andMe which is about 20 million people to compare against.

When we're only using a smaller database like GED Match it's more difficult. So for law enforcement we can't identify as many people as we can for people that are able to access those larger databases. But it doesn't take a whole lot of the population to test before you can start doing that. SMERCONISH: And yet you've been quoted as saying that as ominous as this may sound to some who worry about privacy information glean from social media is much more telling. Is that true?

MOORE: That's absolutely true. In fact I use social media in my research. Just having the DNA alone wouldn't do me any good. I have to use those traditional genealogical resources like census records, vital records, and then also things like social media. That helps me reconstruct these families and figure out who I'm looking for.

SMERCONISH: CeCe, well done. You are a DNA detective. I should have said that at the outset.

MOORE: Yes, I am.

(LAUGHTER)

MOORE: Thank you very much.

SMERCONISH: I want to remind everybody to please answer the survey question at Smerconish.com. You've still got some time.

"Which Democratic member of Congress has the right approach?" I've talked about this in the opening commentary. Is it Jerry Nadler -- quote -- "We'll have to wait and see what the Mueller investigation comes up with?" Or is it freshman member of Congress Rashida Tlaib, "We're going to go in and impeach the m f'er"?

[09:35:03]

Go vote at Smerconish.com.

Up ahead, why is there still no peace for the widow of a police officer killed 38 years ago in the line of duty?

And the latest in the campus hate wars. A student who hung a sign to protest a swastika that somebody drew in her dorm. She gets in trouble with the administration for not being inclusive enough.

(COMMERCIAL BREAK)

SMERCONISH: A college student fighting back against a string of unpunished hate crimes on campus ends up being the only one to get in trouble. After somebody drew a swastika over a happy Hanukah sign on a dorm door at UMass Amherst junior Nicole Parson put up a sign of her own in her dorm window that said, "F Nazis. You are not welcome here."

The campus has an initiative called "Hate Has No Home At UMass" aimed at rejecting all forms of bigotry and hatred which during the semester had documented 19 hates crimes. Yet a week after she posted her sign, she received an email from a resident director asking her to remove the sign over -- quote -- "issues of inclusion."

It said this. "While Residence Education cannot force you or your roommate to take the sign down, I am asking that you or your roommate take the sign down so that all students can be a part of an inclusive residential experience as well as having a respectful environment to be part of here on campus."

[09:40:06]

In a statement posted on Facebook the university then said the email had been -- quote -- "poorly worded." I'll say. And that while the institution reject Nazis it was -- quote -- sensitive to the use of profanity." It concluded, "The university respects the student's right to display the sign and it may remain up."

Joining me now to discuss is Greg Lukianoff. He's the president and CEO of Fire, The Foundation For Individual Rights in Education. He's the co-author of "The Coddling Of The American Mind: How Good Intentions And Bad Ideas Are Setting Up A Generation For Failure."

Greg, it sure sounded on the surface like there was a concern of being inclusive of even the Nazis.

GREG LUKIANOFF, PRESIDENT AND CEO, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION: You know, I just don't buy that. I watched the way universities react to any profanity and they'll come up with whatever catch word they can think of to get an excuse to punish the speech. I have a whole subsection in my book on learning liberty. That's about students getting in trouble for profanity which coincidentally, and I'm being sarcastic here, was actually really about criticizing the university or they're afraid of parents who come to -- come to campus seeing the f-bomb, which I'd (ph) only use by the way on T.V., seeing the f-bomb on the window, all of this kind of stuff.

And what's weird is a lot of people don't know this is it's not uncommon for students or professors to get in trouble for what they believe is antiracist speech.

SMERCONISH: It also underscores at least to me the point that these cases, although they're used by opposite ends --

LUKIANOFF: Yes.

SMERCONISH: -- of the political spectrum when they think it's suits their purposes.

LUKIANOFF: Yes.

SMERCONISH: They really do defy ideological classification, don't they?

LUKIANOFF: Amen. I see this all the time. And there's even two chapters on "Coddling Of The American Mind." They're specifically about cases that don't look like the right versus left stereotype you (ph) see (ph). And there's this kind of big middle of cases that come to my organization FIRE which are about students being told, for example, that they have to limit speech to tiny little free speech zones. And these are students who are on the left, on the right, not particularly political. And it's interesting that a lot of times media doesn't cover some of these free speech cases if they don't exist -- if they don't conform to a preexisting stereotype that people have essentially have (ph) on campus.

SMERCONISH: Right. Fate narrative. Let's make clear. She has a right to say f-Nazis, right?

LUKIANOFF: Absolutely. There's a case directly on point called (INAUDIBLE) California where the Supreme Court goes into -- very specific about once again the f-bomb as we're forced to call it on cable news is protected. And there's a wonderful line that I'm sure you're familiar with but one's vulgarity is another man's lyric.

SMERCONISH: Well, I'm singing.

(LAUGHTER)

SMERCONISH: You know I think it's -- I think it's also parenthetical. It's lost its sting. You know, Bono got an award a couple of years ago and said this is f'ing brilliant.

Nobody thinks fornication. It's become such a common part of the lexicon, the -- it has lost its sting.

The f-bomb really has no sting left. The only thing that I think really has sting in vulgarity is the c-word. That's still got sting.

LUKIANOFF: Michael, I've got to say I actually kind of disagree with you on this one if anything because I'm of the Lenny Bruce ACLU tradition where basically we thought that by now all of the words would have lost their sting. But I think we're actually growing the number of words that are verboten in the society rather than shrink it.

SMERCONISH: Really?

LUKIANOFF: Yes, absolutely.

SMERCONISH: I'm a SiriusXM guy. And I love the ability. I don't abuse it but I love the ability to actually say these things. I could probably --

(CROSSTALK)

SMERCONISH: -- on CNN as well but I should not on a Saturday morning. I know that.

LUKIANOFF: Absolutely.

SMERCONISH: Greg, thank you for being here.

LUKIANOFF: Thank you so much for having me and happy New Year.

SMERCONISH: You too.

Up next. In 2007 I co-wrote a book, this book with the widow of a police officer killed in 1981 here in Philadelphia and 38 years after her husband was murdered there is still no peace for Maureen Faulkner. I think I can summary the case with just one detail and I will do that next.

(COMMERCIAL BREAK)

[09:47:46]

SMERCONISH: When in 2008 I co-authored this "New York Times" bestselling book, "Murdered By Mumia." It's the memoire of a Philadelphia police officer's widow. I never thought I'd still be discussing the case 11 years later, 38 years after the murder. But it's back in the news and I shouldn't be surprised because everything about this case is controversial except the underlying facts which are these.

On December 9, 1981 at about 4:00 a.m. 25-year-old Daniel Faulkner was executed while making what seemed like a routine traffic stop. Faulkner pulled over William Cook. Cook was driving his Volkswagen the wrong way on a one-way street in the city's red light district.

Cook's brother Mumia Abu-Jamal was himself then an out of work journalist driving a cab. His revolutionary ideas were well documented. He saw the police stop of his brother from across the street.

Four eye witnesses testified at trial as to what happened next. Their testimony portrayed a horrific sequence, one where Abu-Jamal ran across the street, shot officer Faulkner in the back and finally between the eyes. Before that final fatal shot Officer Faulkner had himself discharged his gun, hitting Abu-Jamal in the stomach and with that bullet you can say that he confirmed the identity of his executioner.

When police arrived quickly on the scene Abu-Jamal was still wearing his shoulder holster. The murder weapon was registered to Abu-Jamal. He purchased it at a local sporting good store. The five-shot charter arms revolver contained five spent shells.

Ballistics test verified that the bullets found in Abu-Jamal's gun were the same caliber, brand, and type as the fatal bullet removed from the officer's brain. Both men were then taken to the same local ER. Faulkner was pronounced dead. Abu-Jamal was heard to say by eye witnesses, "I shot the m f'er and I hope the m f'er dies."

So the case had eye witnesses, a ballistics match and a confession. Danny Faulkner left behind a young widow, Maureen, who for four decades has stood up to a torn of lies and misinformation about the case. For reasons that have never made sense Abu-Jamal was championed by death penalty opponents the world over.

[09:50:05]

And now the case is back in the news. A Philadelphia judge has ruled a state Supreme Court justice who himself was a former city D.A., should have recused himself when Abu-Jamal's case came before the high court. So here we go again.

As for the new issue, I note that for the justice at issue, Ron Castille, he didn't even get to the Supreme Court until 1994. And there's no evidence that he was biased against the defendant, and he never cast a deciding vote on the case. In other words, if he had recused or had not shown up to vote, the result would have been the same.

Without him, there would have been an overwhelming majority to affirm, even without Castille's supposedly biased vote. The retired justice told me exclusively this week -- quote -- "I taught trial practice in the D.A.'s office and I told the new assistant district attorneys that the last thing they would want to do is convict an innocent person. The evidence against Mumia was overwhelming. He received a fair trial and there were no appellate issues that my court saw in the appeal. I treated this appeal fairly and impartially as did six other justices. That is what the judicial system is all about. It really is dumb to think a single justice overwhelmed the minds of six other colleagues. That did not happen in our deliberations."

The evidence it's been parsed for almost 40 years. Whenever I am educating someone about the case in addition to what I've just told you, I always like to point out one fact. Abu-Jamal's brother William Cook saw it all. It was his car stop that set in motion the chain of events.

His words to the police upon their arrival were I ain't got nothing to do with it. And he never testified on his brother's behalf.

Let me say that again. The brother of the man convicted of killing the cop himself never took the stand to tell a different story and he was there. Think about that as this case is again debated in public.

Still to come, your best and worst tweets and Facebook comments and we'll give you the final survey results of this survey question. Go vote if you haven't.

"Which Democratic member of Congress has the right approach, Jerry Nadler who said, 'We'll have to wait and see what the Mueller investigation comes up with,' or Rashida Tlaib, 'We're going to go in and impeach the m f'er.'

(COMMERCIAL BREAK)

[09:56:01]

SMERCONISH: This is going to be interesting. Time to see how you responded to the survey question at Smerconish.com.

"Which Democratic member of Congress has the right approach? Jerry Nadler, 'We'll have to wait and see what the Mueller investigation comes up

with,' or Rashida Tlaib, 'We're going to go in and impeach the m f'er.'"

Survey says -- wow -- look at that result, 14,838 votes cast, 84 percent favored the approach of let's say the seasoned hand, Jerry Nadler, who is the now chair of the House Judiciary Committee, 16 percent casting their lock with the incoming freshman from the great state of Michigan.

Here are some reactions that you had through social media. What do we have. Katherine (ph)?

"I believe Congresswoman Rashid Tlaib has a right to say m f'er about Trump and CNN has a right to show UMass Amherst student's F Nazi sign during the airing (not blurred)."

Did we blur it, Katherine (ph)? Did we blur the f-bomb in the window? Only once. So we showed it.

Look, I'm cool with that. I love to show it to you. I am frankly just not sure that I can do that on CNN the way I would on SiriusXM.

Trust me. If you listen to me on radio, I'm going to say the word, I'm not just going to bleep it out. But the purpose here in asking the question was what's the best political strategy, just playing political scientist with the audience in terms of the Democrats. Is it the approach of Nadler, await the outcome of Mueller, or is it appease the base?

I'm sure the base will love Congresswoman Tlaib. In face I want to tell you something, she kind of doubled down on her remarks. Let me show you a clip of something that she said last night after all of the controversy came to light. Roll that tape.

(BEGIN VIDEO CLIP)

REP. RASHIDA TLAIB (D), MICHIGAN: I can tell you I've talked to a number of my colleagues including Congresswoman Maxine Waters and Al Green and others who were very, you know, smiling and telling me we love your spirit, we welcome it. Come to us if you ever need any help or advice and they agree that we need to impeach the president of the United States.

(END VIDEO CLIP)

SMERCONISH: I mean, they will be cheering on FOX for that. Did she just invoke Maxine Waters, oh, God. If we could only get a photograph of the two of them together, the new Muslim member of Congress with Maxine Waters and then we can run that on a loop starring Tucker and Hannity's programs.

That's my point. The base will eat that kind of stuff up.

Next, what do we have?

"Sadly a Muslim woman swearing is just the fodder" -- oh, well, look at that. Appalachiantarheel, I just anticipated your comment. That was the point I was trying to make.

Show me the next one.

"Lock her up certainly worked for Trump." Yes. I mean, the sound bites are what win for him. It is the way in which he was able to win the last election. And fighting him at his own level was not a successful strategy. Next. I like being able to do this rapid fire.

"Inclusion? Is this university serious? They're going to chastise the student and dare to use the term inclusion after she was targeted with the most horrendous symbol imaginable?"

Right, F them. Isn't that what you want to say? It was just the worst wording possible that a woman who's the victim of a hate crime for a swastika on something having to do with a Hanukkah celebration says F Nazis and she's told she's the one not being sufficiently inclusive. Couldn't make those facts up.

One more if I have time.

"Smerconish, not just against law enforcement use but for selling private genetic information."

Persisting Resistor, I am totally into genealogy, love investigating my family tree. I have yet to spit in the jar to look at genetic information. I really am glad we did that segment just to put on everybody's radar screen some of the privacy implications.

[10:00:02]

We hope they solve lots of crime, but respecting privacy at the same time.

You can catch up with us anytime at CNN Go and On Demand. See you next week.