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Smerconish

Will It Ever Change?; Twelve Dead, Four Injured In Virginia Beach Shooting; Virginia Beach Suspected Shooter Died After A Gunfight With Police; First Dem Debate: How To Divvy Up The Crowded Field?; Should Debates Adopt A "March Madness" Ladder?; How Trump Is On Track For A 2020 Landslide; Economic Models Predict A Trump Landslide In 2020; Economic Models Point To PA As Key Battleground State In 2020; Models Show Trump's Victory In 2020 Hinges On Economy; How Did Mueller Reach Decision Not To Charge On Obstruction?; Commencement Speeches Urge Action, Hope And Unity. Aired 9-10a ET

Aired June 01, 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. Twelve people died in Virginia yesterday and my first reaction was to wonder whether to cover it. Maybe that reveals a professional shortcoming in me or perhaps it reflects the level of desensitizing that has taken place in America due to gun violence. Probably a little of both. Well of course we won't ignore it.

By now, you know the story. It's the usual. A disturbed gunman went into his workplace and killed co-workers, leaving 12 dead. In the U.S., it's the deadliest attack since the November 2018 shooting at the Borderline Bar & Grill where another 12 people were killed. Quick quiz, where was that? If you don't remember Thousand Oaks, California, I'm sure you're not alone. It's just another sign of how grown accustomed we've become.

And so today there will be grief. People will offer thoughts and prayers, then will come the outrage, a brief plea for gun control from politicians, a retort about mental health, agreement not to mention the shooter's name and then after the burials, we'll return to our daily routines and focus on how long the run of the "Jeopardy" champion might last. Nothing monumental will change.

I threw in the towel after Sandy Hook. If the murder of 20 children didn't change anything, then nothing will because as we've shown time and again, we lack the collective will to fundamentally retrench from ingrained notions of gun ownership in American society. We have a disproportionate number of weapons in this country and not surprisingly, an outsized amount of gun violence. And by the way, I offer these thoughts as a firearm owner, but someone who decades ago quit the NRA and oh how pleased I'd be to have my pessimism proven wrong.

I want to know what you think. Go to my website right now and answer today's survey question. Will America's gun problem ever change?

Joining me now is retired FBI supervisory special agent James Gagliano. James, you know, it occurs to me that the status quo is most unfair to law enforcement, like the cops in Virginia Beach who had to engage in a gun battle with whomever this was.

JAMES GAGLIANO, RETIRED FBI SUPERVISORY SPECIAL AGENT: Michael, your open was spot-on and perfect. And look, there is not a simple panacea to solving this problem. You mentioned all the complexities to it and you're also right, police officers in the 21st century now have to be Olympic athletes, they have to be mental health professionals. They are entering these situations, this term we use now, this phraseology, of active shooter in a -- in an information vacuum.

So when those responding officers showed up, they didn't know if this was a terrorist act, if it was a hate crime, if it was a domestic dispute, if it was workplace violence. They also didn't know what type of weapon the person or people were armed with. It really is a daunting task for law enforcement and I wish on the Congressional end we could get things figured out.

Unfortunately, I just don't know. unless we change a whole lot of things in this country. how we can fix it. We treasure our civil liberties here and we certainly don't want to impose martial law and turn this into a police state, but my gosh, there are so many questions here and I just don't know what the answers are.

SMERCONISH: I know that we both just watched the presser and that information is still unfolding. Thus far, is there anything that strikes James Gagliano as being different about this case than the many others we've discussed?

GAGLIANO: Well, a couple things jumped out at me. Obviously the -- we know that the shooter was armed with a -- with a 45 caliber pistol. I carried a 45 caliber pistol during my entire 25 years in the FBI. He was also armed with extended magazines.

Now, between the period of 1994 and 2004 during the assault weapons ban period, you could not buy, you could not purchase extended magazines. So what does that mean? That means that a 45 is either chambered for seven rounds in a magazine, one in the barrel or if it's a double stack magazine, 14 and one. This would probably add 10, 12, 15 extra rounds and he was armed with a number of them.

The second thing that jumped out was the fact that he had a suppressor on his weapon. What is a suppressor? People sometimes call it a silencer, but that's not what it does. It just muffles the sound of the pistol report. We teach people when you hear something like this run, hide, fight, tell in that order.

The responding law enforcement and the people that we're teaching this to, they probably didn't have a good idea of what this was until the police showed up and exchanged gunfire where then people could understand that this was a gunfight going on. That was an interesting piece that we have not seen of recent, and I say of recent, in the last 20 years post-Columbine, in an active shooter situation, Michael.

[09:05:02] SMERCONISH: James, the chief at the presser spoke of the physical and psychological toll taken on investigators. Made me think of what the overnight must have been like for that forensic crew that had to go floor by floor through that building. GAGLIANO: Yes. So Michael, we know that in the 21st century, we work these things as a collaboration. So the Virginia Beach Police will obviously have assistance from the Virginia State Police as well as the FBI. They sent a number of technicians, we call them evidence response team members, to come down from Quantico down to Virginia Beach. It's a couple of hours drive and to painstakingly work this crime scene.

And Michael, having been on the inside of the police tape on a number of just gruesome crime scenes, I cannot even fathom, even having seen this for myself, what those folks are going through. These are husbands and wives and fathers and mothers and children and people that showed up.

And if you looked at the pictures of the 12 beautiful, innocent souls who were taken, they were old and young, they were black, white and brown, they were male and female, they were us and that must have been difficult beyond -- I mean, I can't even put this into terms, into words. The folks that responded to this scene will need counseling and assistance and I'm sure they're going to get some afterwards, Michael.

SMERCONISH: Well done, James. Thank you as always.

GAGLIANO: You got it, Mike.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I will read some responses throughout the course of the program. What do we have thus far? "It's not a gun problem, it's a people." OK. Great. We can -- we can continue to have this dialogue and this debate and we'll argue. You see what I mean? It's not a gun problem, it's a people problem. It's not a gun issue, it's a mental health issue. It's all of the above and I am sorry to be so damn pessimistic. I don't see it changing in my lifetime. I don't see it changing in my lifetime.

One more if we have time for it. "Thoughts and prayers is all politicians will," -- it's a part of, you know, the response. Thoughts and prayers today, grieving, anger, agreement about we're not going to say the guy's name, et cetera, et cetera, et cetera and then, you know, back to "Jeopardy." Hey, did Holzhauer win last night? How much did he win? Did he pass the other guy?

I want to know what you think. Go to my website at Smerconish.com. Answer this survey question. Cannot wait to see the result. Will America's gun problem ever change?

Still to come, the first debates kick off this month. How do you fit 23 candidates on one stage? By splitting them in half and having two debates, but who gets to go versus whom? DNC Chair Tom Perez is here to explain the selection process and how he hopes to thin the field by fall.

Plus, all else aside, all else aside, because of the booming economy and other factors, if you run the economic numbers on President Trump for 2020, he seems headed to a landslide victory.

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[09:10:00]

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SMERCONISH: The first democratic debate this month and with 23 candidates vying for the stage, how are they going to divvy it up across the two nights? Who debates on which night? Who faces off against whom? What's the plan to winnow the field before the fall debates?

Joining me now to discuss is DNC Chair Tom Perez. Mr. Secretary, this is like herding cats. Give me the overview of the approach.

TOM PEREZ, CHAIRMAN, DEMOCRATIC NATIONAL COMMITTEE: Well, Michael, I'm happy to do that, but I want to thank you for what you did in the first 10 minutes or so of this show. I've been reflecting on your question, will things ever change. In the short run, I fear the answer is no.

It'll be a matter of days or weeks before the next mass shooting because we lack the will to do something about it and in the long run, that's what elections are about and we're going to fight like heck and unfortunately, everything we do in the U.S. House of Representatives meets a graveyard in the United States Senate. So we're going to keep fighting like heck and ...

SMERCONISH: Hey, I want to -- I want to say something ...

PEREZ: ... I'm going to keep praying.

SMERCONISH: I want to say something too. I want to say something too. I reply in real-time to these tweets and Facebook comments and I don't see them in advance. I was kicking myself during the commercial break because we posted a comment where somebody said we have a people problem ...

PEREZ: Yes.

SMERCONISH: And all through the commercial break, I'm beating myself up ...

PEREZ: Yes.

SMERCONISH: ... saying what I should have said is we don't have a monopoly on bad people in this country. We don't have a monopoly on mental health issues in this country. We have a gun problem in this country.

PEREZ: Right (ph).

SMERCONISH: That's what I wanted to say to that guy. You get the final word, then we'll talk debates.

PEREZ: Absolutely. We can do something about this problem if we muster the will to take on the NRA and that's what we're going to do. It's not going to happen in the short run. That's why we have elections. That's why I'm at the DNC, to build an America where we can be safe. You should be able to go to work and come home safe and sound.

I am grieving for those remarkable public servants. I worked in local government. Those people don't get rich, but they are great public servants and now they have lost their lives and there are some who are fighting for their lives. That is wrong and I will -- I'm going to work like hell over the course of my career in public service to make sure we change this because we can do something about this and we're going to continue to try like hell to do it.

SMERCONISH: OK. All right. On the debates, let me now go to the issue I really wanted to raise. Chris (ph) is one of my colleagues here. He made an observation about the rules for debates three and four which seem to prioritize large, grassroot donor bases and he wonders whether, in the end, isn't it who has the most money and who has the most money on hand? Are you sure you have the right metrics, is my question.

PEREZ: Well, we haven't changed the rules or our methodology. What we've done throughout, Chris (ph), Michael, is to make sure that we're creating a really inclusive process. You can't win the presidency in the modern era if you can't build relationships with the grassroots and that's why we set forth an unprecedented set of ways to get to the debate stage. You could either get there through the polling threshold or you can get there through grassroots fundraising.

Sixty-five thousand donors were what we set for the first and it turns out that there's going to be something like 14 or 15 or over a dozen.

[09:15:02] I don't know the exact number, who are going to reach that threshold. And then the next two debates, you have to get to 130,000 which means if you've gotten to 70,000 by the first debate, you have 60,000 to go. And the more proficient you are at grassroots fundraising, the cheaper it is. And so I think it's really important for us to make sure that grassroots can be part of the process. I don't think you can win the presidency as a Democrat if you can't connect with the grassroots.

So we're very proud of what we've put together. We spoke to a ton of people, got their input and again, the proof is in the pudding. Candidates have done a very good job in the aggregate of reaching the grassroots and I think that's going to help us as a party, Michael, in the long run.

SMERCONISH: Here's something that I worry about. In the end, a candidate in the first, second, third is only going to really get seven to 10 minutes of speaking time. This is going to sound crazy, but hear me out on this. Wouldn't you like to see a "March Madness" type of model? I don't mean with elimination, but some toe-to-toe, Beto and Biden, Klobuchar and Kamala. I'm sure CNN would give the time up, you know, for two people to go at it at once, maybe just for 30 minutes and then another two people and another two people and continue to mix up the lot. What do you think of that?

PEREZ: Well, I think -- what I think is that we have a remarkably large field and I think that is a first class challenge to have and what we've set up and we've worked together with the networks, including CNN and they've been great partners, is a structure where we want to give everyone a fair shake to communicate their vision to the American people.

If history is a guide, there are going to be some breakthrough moments in the upcoming debates where people who are currently, you know, maybe at 1 percent have that breakthrough moment and then things happen over the course of the next few months. And so what I think we've set up is a process that gives everybody not one, but two bites at the apple to communicate their vision to the American people.

And then what we've done, and we said this all along, that in the fall, we're going to raise the threshold because that's what we always do. You have to demonstrate that you're making progress. And 2 percent, you know, is hardly a high bar in my judgment. If you've already gotten 70,000 or 80,000 grassroots donors, then you're over halfway to the mountaintop on that as well.

And I'm confident that we're going to see great debates and nobody's going to be talking about hand size, Michael. We're going to be talking about healthcare and climate and the issue -- and reducing gun violence and the issues that matter most to people. And I think this process that we have set forth, 24 people running for president, 23 aren't going to make it to the mountaintop. My goal is to make sure that all of those candidates and their supporters feel like they got a fair shake so that next spring ...

SMERCONISH: Final ...

PEREZ: ... when we have our nominee, they can hit the ground running.

SMERCONISH: Final question. When and how will you decide who stands on the stage with whom?

PEREZ: Sure.

SMERCONISH: If it's going to be 10 and 10 for the first two nights ...

PEREZ: Right.

SMERCONISH: ... you know, who gets to go into (ph) side by side with the others?

PEREZ: Right. June 12th will be the last date that you qualify for. So within 48 hours. June 14th or so, we will have made the selection. And again, our goal was random selection. Our goal is not to have a varsity JV matchup and so we outlined exactly what we do and so lets say 20 people qualify. By June 14th, we will know what the order will be.

It will be -- what we -- what we do know is it'll be two nights in a row and there would be 10 the first night, 10 the second night and I'm confident that these debates are going to get a lot of viewing both in June and then in July when we're with CNN. I think these are the most important debates ... SMERCONISH: All right.

PEREZ: ... that we've seen.

SMERCONISH: Think about my "March Madness" idea. I'm serious about it. I don't mean with elimination, but I just mean so that we can -- we can winnow by looking at two candidates on the stage at once. Thank you, Mr. Secretary. I appreciate it.

PEREZ: Have a great day.

SMERCONISH: I want to remind you to answer the survey question at Smerconish.com. Will America's gun problem ever change? I know a lot of people are beefing, like why did you word it as a gun problem? I did it deliberately. I wrote it.

Still ahead, while two dozen rivals jockey for position, is Donald Trump on track to win a landslide in 2020? Economic signs point to yes.

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[09:20:00]

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SMERCONISH: As scandal and countless investigations swirl around the Trump administration in Washington, the economy may be the president's saving grace. According to dozens of models, the booming U.S. economy all but solidifies a landslide victory for President Trump in 2020. In every single one, Trump wins. This makes Rush Limbaugh, for one, pretty happy.

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RUSH LIMBAUGH, CONSERVATIVE RADIO HOST: And there's other polling data out there today, including three supposed experts at modeling future elections, turnouts and all that with (ph) computer models and all three of these guys are commie-based, left-wing types and they all three are -- in fact, one of them has 12 different models and Trump wins them all -- re-election.

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SMERCONISH: Joining me now, the chief economist at Moody's Analytics, Mark Zandi, who has analyzed 12 models for the 2020 election. I feel like my first question should be, Mark Zandi, are you now or have you ever been a member of the Communist Party?

MARK ZANDI, CHIEF ECONOMIST, MOODY'S ANALYTICS: That's the first I've heard of that, Michael. That was pretty comical. Yes. No, I have not -- I'm not a commie and I've never been a commie. No. I'm an American.

SMERCONISH: What did you do here? Give us the overview.

ZANDI: Yes. So this is a model. So we look at historical voting patterns. The model is based at the state level to account for the electoral college. It includes economic variables, things like unemployment, the change in unemployment, change in gas prices, house prices and also political variables, things like the president's approval rating, previous voting patterns, the benefit of incumbency. So lots of different factors. and of course, we test the model based on how well it has done historically.

But you know, I should say the model is predicting -- these models are predicting that Trump would win if the election were held today, not, you know, 18 months from now. So there's a lot of economic script to be written between now and then and things will change, almost certainly will change. So the models are only as good as of today.

[09:25:01] SMERCONISH: OK. So as not to repeat the mistake of pollsters in the last cycle, do you look at things nationally, I.E., popular vote or state-by-state?

ZANDI: State-by-state. So state-by-state and actually it's quite interesting. I mean, if you look at it, it's intuitive. Pennsylvania, where I live and I think -- I think you live in Pennsylvania as well, Philadelphia ...

SMERCONISH: True (ph).

ZANDI: ... that is the most swing state. It's right on the bubble and actually if you look at the counties within the state, and we actually model at a county level, the real battle is around Philadelphia in the Philadelphia suburbs. That's where the swingest of swing votes are and that's going to be key.

And one other really important point, Michael. It's really about turnout. So one interesting thing is these models don't account for turnout. They implicitly assume that turnout is equal to the average turnout since 1980 when these models were -- the data that we're using.

If Democrats turnout at high levels, say at the levels that prevailed back in the 2008 election, the first Obama election, then in fact the D candidate would win even with this good economy. So it's really going to be very important for Ds to turn out in big numbers if they -- if they want to win this election, if the economy still is good 12 months from -- 12, 18 months from now ...

SMERCONISH: Without the economy, is it fair to -- is it fair to say -- is it fair to say that without the economy, if the economy should take a turn for the worse, then your models would all say that he's done? In other words, you're showing him in the best of circumstances according to the economic numbers.

ZANDI: Yes. No, that's exactly right. So we have a three point -- nationally, we have a 3.6 percent unemployment rate. That's a 50-year low. What really matters is 12, 18 months from now, what is the unemployment rate? Is it -- is it rising or is it falling? If it -- if it's rising, even from a low level, then he's got a problem economically. And then if the Democrats turnout in large numbers, if they're really charged up, feels like they are, then these models will show something very different. It'll show that D wins, not Trump.

SMERCONISH: You know, the president has, I'll say it this way, an outsized personality which helps him with his base and harms him with his detractors. That's really what's offsetting your data. Let me say it more simply. Anybody else with these economic numbers, I think Mark Zandi would be going much further in saying, guy's a shoo-in.

ZANDI: Yes. Yes. You got that exactly right. I mean, all the political factors, you know, favor him. He's an incumbent, right? An incumbent after their first term running again has an advantage. Of course, the way the electoral college is set up, that is an advantage to him. The one thing that's not working for him politically is his approval rating, but even there, right now, his approval rating -- we use the "Gallup Poll" for the approval numbers -- is relatively high. It's about as high as it's been since he's been president.

And then you throw on this economy, particularly what's going on in the job market, there's a (ph) very low unemployment, you know, that gives him a lot of tail winds and that's why he wins, but even despite all of that, despite the great economy, you know, it's not a slam dunk.

One other thing, Michael, I should point out, these are models, right? And models are wrong and we saw that in 2016. The models that now are predicting Trump would win are the same models that predicted Clinton would win back in 2016. So you have to take this, you know, with that in mind.

SMERCONISH: Got it. If we'd had this conversation before the last cycle, you'd have been speaking of Hillary, you commie-based ...

ZANDI: Yes.

SMERCONISH: ... left-wing type.

ZANDI: Yes. You got it. Yes. YEs.

SMERCONISH: Mark, thank you. Appreciate it.

ZANDI: Thank you. Take care.

SMERCONISH: Checking on your tweet and Facebook comments. What do we have, Catherine? "For who? People like me, middle class, have to look for second jobs to be able to make it." Marisol, you know, I hear that from individuals who are on my radio program running focus groups. Richard Vague is one of them who has come on and said, you know, when he's conducting focus groups, yes, people are employed, but they're holding two jobs just to make sure that they're able to pay for that which they need and they're still concerned about how they're going to be able to afford health insurance. I get your point.

I want to remind everybody, answer the survey question at Smerconish.com. Do it now, OK? Will America's gun problem, my words, ever change?

Still to come, in deciding not to charge the president with obstruction, Robert Mueller made his own interpretation of the law. Well, who voted for that?

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[09:33:05]

SMERCONISH: So Attorney General Bill Barr thinks that Special Counsel Robert Mueller could have reached a decision on whether the president committed obstruction. Guess what, he's right, and his assessment only reinforces my long standing belief that something's missing regarding the Mueller report. Accountability.

In two critical instances, monumental decisions were made by individuals, not answerable to the people. The first had its roots in 1973 when in the midst of the Watergate information, Robert Dixon, he was then the head of the office of legal council, the OLC within the Justice Department. He's the one who wrote an opinion concluding that the president cannot be indicted while in office.

Dixon reasoned that the burden of a criminal case would hinder the executive branch from -- quote -- "accomplishing its constitutional functions." That opinion has never been tested in court. Although in 1997, the Supreme Court did allow a civil suit to proceed against President Clinton, and it has long been debated by legal scholars. In 1974, it was rejected in a memo from the staff of the Watergate special counsel, Leon Jaworski, they argued that President Nixon could be indicted while in office.

In 2000 the OLC policy against indicting a sitting president was reaffirmed but in 2017, a long hidden memo came to light after "The New York Times" filed a Freedom of Information Act request and caused its release from the national archives. It revealed that a law professor named Ronald Rotunda then working as a consultant for independent counsel Ken Starr reached a different conclusion -- quote -- "It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of and are contrary to the president's official duties.

[09:35:00]

In this country, no one, even President Clinton is above the law."

OK. Enter Robert Mueller. Mueller abided by the OLC policy and its logic. His report said this -- quote -- "A federal criminal accusation against a sitting president would place burdens on the president's capacity to govern."

He chose not to render a conclusion on obstruction of justice overlooking that a special counsel is to provide the attorney general with a report -- quote -- "explaining the prosecution or declination decisions the special counsel reached." Well he didn't do that.

And Mueller went one step further. Mueller claimed it would be unfair to establish a criminal case against a president in office where there would be no trial in which the president could seek exoneration. That's why he made no finding on obstruction of justice. The report it said this -- quote -- "Fairness concerns counseled against potentially reaching that judgment when no charges can be brought."

The problem that I have is that neither Robert Dixon, the original author of the Justice Department OLC policy nor Robert Mueller who took the policy one step further were acting pursuant to an express provision of the constitution or edict of the congress. Both were singularly setting policy with no accountability to the people.

The OLC guideline is not a constitutional provision. It's not a statute. It's not a regulation. It's subject to change by the mere stroke of a pen at the DOJ. And that's what I think needs to change.

If it's the will of the people that a sitting president cannot be indicted, then Congress ought to pass a law saying so. Before acting Congress might want to first consider that the president has no such protection against being charged by a state, and that if we were to expressly offer the American president protection while in office, we'd be an outlier.

Consider Israel, where Prime Minister Benjamin Netanyahu right now is preparing for a pre-indictment hearing in the early fall. Why? Because Israel has no prohibition against indicting a sitting prime minister.

Plus, the idea that a sitting president would be incapacitated by facing trial while in office that's belied by President Trump himself. While he currently faces no charges and hence no trial, according to "Time" he's nevertheless the subject of more than a dozen other investigations and lawsuits looking into him, his businesses, his family and his associates.

That doesn't seem to have interrupted his ability to function. As a matter of fact, he seems to thrive on it. Bringing accountability to this process is not a Republican, not a Democratic idea, it's just the right thing to do.

Joining me now is Neil Kinkopf. He worked in the office of legal counsel from 1993 to 1997. He testified against William Barr's nomination for the Senate Judiciary Committee this past January and is currently a constitutional law professor at Georgia State University.

Mr. Kinkopf, do you think it's settled policy this OLC guideline?

NEIL KINKOPF, FORMER SPECIAL ASSISTANT, OFFICE OF THE LEGAL COUNSEL: It's settled Justice Department policy but you're quite right, it is not a settled legal proposition. No court has ever endorsed the position and there are strong arguments to be made on the other side, so it's settled within the Justice Department but it is not a settled rule of constitutional law.

SMERCONISH: Do you think that Robert Mueller was obligated to follow the OLC guideline?

KINKOPF: Yes, he's a Justice Department employee and he was obligated to follow it. Now, he may have asked for it to be reconsidered and I think that would be an interesting line of questioning if he testifies before Congress, whether he asked that question, because part of the Mueller report in the part where it considers obstruction of justice, the constitutional theory that the president can commit obstruction of justice is intentioned with the theory that the president cannot be indicted or prosecuted. And so it would have made sense for him to have run that question up the chain and it would be interesting to know what he was told if he did.

SMERCONISH: Look, you're a smart guy, a constitutional scholar, you worked in OLC, like the rest of us, you have been watching what's just unfolded, explain it to me.

KINKOPF: So I think the real key to understanding this is Ken Starr. Right, when Ken Starr issued his report, he was virtually foaming at the mouth for Bill Clinton's impeachment, and he really undermined the credibility of the investigation by his partisan behavior.

I think Robert Mueller wants to do everything he can to avoid that kind of spectacle, and to avoid that kind of legacy. And so instead what he's done is to lay out the facts, and to leave it to Congress to decide whether or not to proceed with impeachment. Which I should add is the theory of the OLC memos from Dixon in '73 and from Randy Moss in 2000.

[09:40:06]

SMERCONISH: The problem that I have with Mueller's approach, by the way, I regard him as a patriot, I appreciate the way in which he undertook this task, I think he went a step too far with this fairness notion because he seems to have teed it up for the Congress without reaching a conclusion and I agree with Bill Barr, that there was nothing that precluded Mueller from reaching a conclusion on obstruction, not to bring an indictment but to reach a conclusion and provide additional guidance to the Congress. Do you agree with that?

KINKOPF: I agree with you that he could have, but the theory of the OLC memo is that to indict a sitting president puts a cloud over the office. For a special counsel to say that the president committed obstruction of justice would put a cloud over the office. I don't think there's anything unconstitutional about that but the theory of the OLC memo is that it is unconstitutional.

So I think Mueller could have. I understand why he didn't. I think at this point, though, it's very much incumbent upon Congress to take up that question, and I think in addition to the fairness point, Mueller placed a lot of weight on not wanting to preempt Congress's process, and that process is supposed to be informed by judgment made by politically accountable actors. And Mueller is not that.

SMERCONISH: But in Mueller's effort to play it down the middle, I think he left this war shack test that we saw unfold this week where people were reading into his nine or so minute presser whatever they wanted to, and I don't think that it moved the needle either way as a result. You get the final word. KINKOPF: I completely agree with you. I think he has left us in a position where supporters of the president continue to say untruthfully, but continue to say no obstruction, no collusion. And those of us who read the report and the facts in the report see that that's just a lie.

SMERCONISH: Professor, thanks for your time, and expertise. We appreciate it.

KINKOPF: My pleasure.

SMERCONISH: Let's check in on your tweets and Facebook comments. What do we have, Katherine (ph)?

From Twitter, I think. Anyone who still can't see Trump is unfit for office is either uninformed or unfit as a human being.

C. Mao, the standard is high crimes and misdemeanors, unfitness is subjective, and I think it gets resolved in the next election what people think, not in an impeachment process but we'll see.

Look, the pitch I'm making here is simply this. Do we want to have a standard where a sitting president cannot be indicted while in office, and if that's the case, then Congress ought to make it the law because this is not a settled issue among legal scholars. I don't consider myself one, but I did a lot of reading on the subject this week, and that Ken Starr memo is really illuminating. They didn't buy into it.

Still to come, it's commencement season, so what are this year's speakers telling graduates about to take on the world. Here's what actress Viola Davis said at Barnard.

(BEGIN VIDEO CLIP)

VIOLA DAVIS, ACTRESS: All your memories and experiences, even if they were traumatic, own it. Own it. The world is broken because we're broken. There are too many of us who want to forget who said that all of who you are has to be good, all of who you are is who you are.

(END VIDEO CLIP)

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[09:47:37]

SMERCONISH: It's commencement time. I didn't give a speech this year, but I have in the past three, so I always like to pay attention to what others choose to say as they send graduates off into the world. Here's a look at some of the messaging of 2019. The mantra of Oprah Winfrey at Colorado College.

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OPRAH WINFREY, MEDIA MOGUL: Everything is always working out for me. That's my mantra. Make it yours.

Everything is always working out for me. Because it is and it has and it will continue to be as you forge and discover your own path.

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SMERCONISH: Apple CEO Tim Cook's think different advice at Tulane.

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TIM COOK, CEO, APPLE: Steer your ship into the choppy seas, look for the rough spots, the problems that seem too big. The complexities that other people are content to work around, it's in those places that you will find your purpose.

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SMERCONISH: President Trump spoke Thursday at the Air Force Academy. He shook each of the cadets' 1,000 hands. He also conveyed a message of forgiveness.

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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: A few cadets are still on restriction for pranks and other fairly bad mischief, you know what I'm talking about, right? And you all know who you are.

So keeping with tradition, and as your commander in chief, I hereby absolve and pardon all cadets serving restrictions and confinements and that you earned. You earned it. So you're all on even footing. Is that nice?

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SMERCONISH: Democrat Stacey Abrams who ran a close race for Georgia governor last year had this bipartisan message for the students at American University School of Public Affairs in Washington.

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STACEY ABRAMS (D), 2018 GEORGIA GUBERNATORIAL CANDIDATE: Beyond the easy labels of party and ideology are the deeply held convictions that shape those labels. But too often adherence to conservative or progressive, to liberal or moderate, to Democrat or Republican or independent, to being pro this or anti that becomes an excuse for lazy thinking.

[09:50:07]

And for today at least I urge you to set aside your labels and explore what your principles say about the world you wish to serve.

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SMERCONISH: Here's hoping the graduates can take it all these well- meaning words as they find their ways in the world. Congratulations to all.

Still to come, your best and worst tweet and Facebook comments and we'll give you the final result of the survey question. Your final chance to vote is now at Smerconish.com.

Will America's gun problem ever change?

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SMERCONISH: So how did you vote on the survey question at Smerconish.com?

Will America's gun problem ever change?

Survey says 10,567 votes cast. Unfortunately, sadly, we, the nos, have it. Seventy-three percent say no. Here's hoping that we are all wrong. Those of us who constitute the 73 percent.

What came in in social media this week, Katherine (ph)? What have we got?

Throwing in the towel after Sandy Hook is the saddest commentary of all. Everybody needs to stay engaged on the issue of guns. And then may mean lobbying or just -- yes, I hate to say it, Susan.

I mean, in coming into the studio to deliver the program today, I said to myself, how much attention do we pay to Virginia? The saddest commentary of all. Maybe a bad reflection on me as a professional, but I'm telling you truthfully I feel like it's so damn sad and yet it's another story and nothing will change.

Next one. What have we got?

[09:55:01]

I think if someone were brave enough to show pictures of the carnage complete with victims there would be a better chance of changing our gun laws, sounds awful but seeing is believing.

I can't say your handle. Nitrogirl. OK. You know what else, Nitrogirl? Letting NIH take a look at this program, because it is a gun problem. That would be a healthy step in the right direction.

Give me another one.

Mueller gave the report to his boss to make the conclusion and he did. No obstruction.

Gypsydave, no. No. His job -- I mean, look at the -- look at the plain text of what his role was. He was to reporter to the attorney general in a confidential style, manner, his decisions regarding prosecution and declination. It was a binary choice that he faced, and he did neither. He punted.

And you know at a minimum I think Robert Mueller should have told us if that was his philosophy from the outset. In other words if from the get-go he never intended -- remember, not until March 5 did Bill Barr know that Mueller wasn't going to bring it to a conclusion. I couldn't disagree with you more. Please make sure that you join me for my American Life In Columns tour. I'll be in Washington, D.C. on Monday night. Then in Denver. Parker, Colorado, on June 23rd.

And remember you can catch up with us anytime on CNN Go and On Demand. See you next week.

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