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Smerconish

NY Hush Money Probe Goes Quiet After Chaotic Week; Impact Of TikTok On Teen Mental Health; Utah Passes Aggressive Law Limiting Kids' Social Media Access; Can Landlords Ask Tenants About Criminal Record?; The Potential Perils Of Prosecuting A Past President. Aired 9-10a ET

Aired March 25, 2023 - 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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[09:00:31]

MICHAEL SMERCONISH, CNN HOST: Everything everywhere and all at once. I'm Michael Smerconish in Philadelphia. It was one week ago in this hour that I shared the news that Donald Trump had just posted on Truth Social, his expectation that he'd be arrested this past Tuesday.

Manhattan D.A. Alvin Bragg said that was never the plan. Maybe it was all a head fake designed by Trump to rally his GOP supporters in the House or pave the way for last Monday's grand jury testimony by former prosecutor and Michael Cohen critic Robert Costello. Perhaps it was just to make Bragg think twice before indicting a former president.

Trump even posted this on his social media site making it look like he's raising a baseball bat against Bragg. He also called him an animal. That post was later deleted.

On Friday, a law enforcement source told CNN that Bragg had been threatened with assassination in a letter containing nonhazardous white powder. It's a lot to process. Let me try and sort it out.

Remember, signs initially pointed to the first Trump indictment possibly coming out of Georgia, where Fulton County DA Fani Willis is investigating his attempts to overturn the 2020 election there. And then it seemed that was going to be lapped by Bragg and the hush money case.

By the end of the week, Bragg seem to be slow walking, while Special Counsel Jack Smith began to sprint. Smith was appointed by Merrick Garland to look both at Trump's role in the January 6 case and his handling of classified documents at Mar-a-Lago. He scored two major victories this week.

In the January 6 case, a federal judge denied the claims of executive privilege by Mark Meadows and other Trump aides ordering them to testify to a grand jury. And in the Mar-a-Lago case, two federal courts forced Trump attorney Evan Corcoran to break the attorney- client privilege. At issue? Was whether Corcoran would be compelled to testify about who knew what concerning the classified Mar-a-Lago documents. Smith was successful in convincing both a district court and the appellate court sitting in D.C. to force Corcoran to testify in front of a grand jury based on something known as the crime fraud exception to the attorney-client privilege. That means that prosecutors have reason to believe that the legal advice was used to carry out a crime.

Before its ruling, the federal court for the Appeals for the District Court of Columbia required Trump lawyers to brief the issue by midnight last Tuesday, and then required Smith to respond by 6:00 a.m. Wednesday morning. That type of briefing schedule is highly unusual. And to me, it's a sign of the alacrity with which many are now moving to wrap up their Trump investigations, no doubt mindful that the 2024 presidential race has begun. And that includes special counsel Jack Smith.

Something else Judge Beryl Howell is the district judge who first ruled that the crime fraud exception apply. She issued an order under seal that nevertheless was reported on and has said that the government had made a prima facie showing that the former President committed criminal violations.

That's not the first time that a court opined that the law was probably broken in Trump's handling of the Mar-a-Lago documents. Remember for that search warrant to have been executed at Mar-a-Lago, a showing of probable cause would have had to have been made to the court.

Judge Howell's ruling is not a guarantee of Trump being charged. But it might be a sign that the documents case is a much bigger problem for Trump than paying for Stormy Daniels silence. The cover up is often worse than the crime, right?

In the documents case, it may turn out that notes from Trump's lawyer could reveal a plan and/or action by the former president to cover up and/or perpetrate improper conduct regarding classified documents. And that'll make the case much more about obstruction than the murky no harm, no foul, him to defenses.

And the federal case seems to have gained steam. Now soon, Jack Smith is going to have to make a rather binary decision. Did Donald Trump break the law and can it be proven? He'll make a recommendation to AG Merrick Garland based on the evidence. But Garland is not obligated to act upon Smith's recommendation. Garland has what's called prosecutorial discretion.

As pointed out by the New York Times, what's that? "It's a power by prosecutors in the American justice system at both the state and federal level to decide not to bring a case even if the law and facts would support a conviction. In the United States, prosecutors have broad latitude to choose among a range of options in handling a criminal case from selecting more or less harsh charges as part of an indictment to striking a plea bargain to bringing no charges at all."

[09:05:20]

And then there's this quote, "In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury generally rests entirely in his discretion." That's Justice Potter Stewart, writing in the 1978 Supreme Court opinion.

So, Donald Trump is a former president, now running for his old job. Probably not a matter of consideration for Jack Smith. But it might be for Merrick Garland. That President Biden and former Vice President Mike Pence also had classified documents at their residence is probably of no concern to Jack Smith.

But where that will matter in the court of public opinion, it will likely be considered by Merrick Garland. And the Trump faces legal jeopardy in Manhattan and in Fulton County, Georgia, is not going to impact Smith's determination of whether Trump broke the law at Mar-a- Lago. But the totality of events now facing Trump and the country will likely be considered by Garland.

Alvin Bragg might still beat Jack Smith and Merrick Garland to the courthouse. But the first case in isn't always the strongest nor the first that will reach trial. And that's a problem for Donald Trump.

Joining me now to discuss CNN Senior Legal Analyst and Former Federal Prosecutor Elie Honig. He's the author most recently of, "Untouchable: How Powerful People Get Away With It."

OK, Elie, you're the authority, must Merrick Garland accept whatever recommendation Jack Smith might soon bring to him?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: No, Michael, he does not have to do that. Merrick Garland is the Attorney General of the United States. He is the ultimate arbiter. He does under the law have to give Jack Smith's recommendation, quote, great weight. So he has to lean towards deferring to Jack Smith. But he does not automatically have to do that.

He has to exercise Merrick Garland, what we call prosecutorial discretion. And I will tell you from day one at the Justice Department, I was there, you are trained. You are not a robot. Your job is not to take the inputs, the evidence and mechanically apply it to the law. And whatever spits out as the result, you do that. You ought to exercise broader discretion. And of course, that applies extremely to the Attorney General of the United States.

SMERCONISH: So what might that mean, in this case? What might be some of those considerations that Merrick Garland would have to take into account before deciding to indict Donald Trump for the Mar-a-Lago case or January 6?

HONIG: So prosecutorial discretion does not mean you can do whatever you feel like, it does not mean you can act on a whim, it certainly does not mean you can consider unconstitutional factors like an individual's race, sex or gender. But it does mean that you have to look at factors like, is it fair to bring this case? Is it necessary to bring this case? If you're the attorney general, you have to think about how will this case reflect on this department? Will it promote public confidence in this department? Will it promote a sense of legitimacy? Will people believe in this case? So all of those are sort of softer factors, but they're absolutely in play for Merrick Garland.

And, Michael, if you take a look at the justice manual, which is the official guidance to every prosecutor at DOJ from the Attorney General on down and you just word search, Ctrl F discretion, you will get dozens and dozens of hits virtually every section says that federal prosecutor has to exercise discretion.

SMERCONISH: You heard what I said in my opening commentary that if I'm Jack Smith, it matters not to me that there were classified documents found in Joe Biden's garage, or Mike Pence's house in Indiana. But if I Merrick Garland, I've got to think how does it play in the court of public opinion. There'll be a lot of, well, what about him and what about him, if I go after Trump related to documents?

HONIG: Yes, I think that's a fair consideration. First of all, Jack Smith also has to exercise discretion. I would add that. If we look at Robert Mueller, who was special counsel in recent memory, he used his discretion. If we look at his report, there are various things that he recommends or does not recommend in his discretion. But absolutely, Merrick Garland has to take the broader view.

Now, as to the documents case, what keeps coming to my mind is there's a concept in football in the NFL called offsetting penalties. And that means if both the offense and the defense happen to commit penalties on the same play, even if they're unequal, even if one of the penalties is way worse than the other, the result is it wipes out the entire play and you sort of start back where you begin.

Now, look, we can all understand analytically. They're important differences between the Trump documents case and the Biden documents case.

[09:10:03]

Trump had more documents, Trump looks like he was obstructing. Biden was not. However, I think you're right, I think it's going to be very difficult for Merrick Garland. And he's allowed to think about this to justify and have public confidence in an outcome where he says, I'm going to give the guy who appointed me, Attorney General, the Democrat, a pass who's, by the way, running for office in 2024, in all likelihood, but I'm going to indict seek to imprison his likely opponent, Donald Trump. I think that's a tough needle to thread.

SMERCONISH: Final and quick point, big picture. It looked like, you know, it was Alvin bragged who was going to get there first. And then this week was a very unusual week. And Jack Smith, as I said, seems to have lapped him. What do you see big picture?

HONIG: I still think Alvin Bragg is the leader in this horse race, so to speak, because he can move so quickly. I mean, we know the grand jury is reconvening on Monday. We don't know exactly whether they're going to hear a witness. But once you're at this point in the proceedings, Michael, if you're the DA, you can obtain an indictment really, almost as soon as you want.

From this point on, all you have to do once you're done with witnesses, show them the draft indictment, explain the law, have them vote. I've seen that process take place in under an hour. So I think Alvin Bragg is still the leader in the clubhouse. I think Fani Willis is likely in second and Jack Smith.

While you're right that the pace has picked up quite a bit, he's still got to go through Merrick Garland, who has shown us that he is not a fast decision maker. He does not act quickly.

SMERCONISH: And yet, I think that it's Jack Smith, who has the most straightforward facts.

HONIG: Yes.

SMERCONISH: Elie, you know I like to respond to social media. Stay right there. I'll read it aloud. Let's put it up on the screen and see what has just come in. "Prosecutorial discretion goes both ways," says Bob. "What is the damage to the country of not pursuing charges if the special counsel has recommended them?" Ellie you would say what to Bob Starner?

HONIG: That's an absolutely fair point. I think you have to think about how is this going to play. And by the way, if it plays out that way, where Jack Smith recommends charges in the Merrick Garland overrules him, that will be reported to Congress by law. We will know that and I think Merrick Garland needs to think about that. What will it do to DOJ reputation if I pass?

But this is also another important point of discretion. I want to raise off that really smart point by the viewer there. One of the factors that federal prosecutors at DOJ are supposed to consider is, is this conduct being addressed? Is it being charged by some other authority?

And so there is a notion that let's say with January 6, if Fani Willis charges it as a state level prosecutor in Georgia, DOJ can consider that and say it's therefore less necessary for us to charge that conduct.

SMERCONISH: It's all very fraught, a series of landmines that are going to have to be navigated in the very near future. Elie, that was excellent. By the way, I'll remind everybody in your book, like you broke the fact that the southern district passed on that which Alvin Bragg is now taking a long, hard look at.

Thank you, Ellie.

SMERCONISH: Thanks, Michael.

Still to come, in the investigation into hush money Trump allegedly paid to adult film star Stormy Daniels, his defense team put a witness before the grand jury to refute the allegations of his former Attorney Michael Cohen. Is Manhattan DA Alvin Bragg's case in jeopardy, or is he just calling his jets?

Michael Cohen's attorney Lanny Davis is here and joins me next. Plus, TikTok CEO was grilled on Capitol Hill about his company's ties to China and its protections for user data, the very same day, Utah became the first state to pass social media regulations aimed at protecting minors' mental health. Is it too little too late?

I want to know what you think. Go to smerconish.com and answer this week's poll question. You can use the QR code if that helps you. "Should parental consent be required before minors can join social media?"

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[09:17:41]

SMERCONISH: Is Alvin Bragg getting cold feet about indicting Donald Trump or at least about going first? A week after Trump's incendiary posts claiming that he would be arrested this past Tuesday, no indictments have been issued. But the Trump campaign says it did raise more than $1.5 million in donations from the false warning about the arrest.

This week the grand jury on the case heard testimony from a witness for Trump's defense team, Robert Costello, a former legal adviser and key prosecution witness for Michael -- to adviser to Michael Cohen. When the New York Times asked Costello about his two hours plus testimony he said this, quote, "I told the grand jury that this guy couldn't tell the truth if you put a gun to his head."

Cohen pleaded guilty in 2018 to federal charges involving payment to porn star Stormy Daniels who said she'd had an affair with Trump, a claim the former president denies. Cohen said Trump authorized the payment of claim backed up by federal prosecutors who referred to Trump as individual number one, when they wrote in proceedings that Cohen himself has now admitted with respect to both payments that he acted in coordination with and at the direction of individual one.

The earliest the grand jury will meet again is on Monday. Joining me now to discuss is Lanny Davis, a lawyer for Michael Cohen. Lanny, nice to see you. Did Alvin Bragg just back down because of Donald Trump's posture this past week?

LANNY DAVIS, ATTORNEY FOR MICHAEL COHEN: So I'm not going to comment on Mr. Bragg or all the time who spent with Mr. Bragg are very effective and very meticulous team. And I'm not also going to do what Mr. Honig was saying, and I think you were agreeing to take into political factors or the president of the United States, no man is above the law. And Mr. Bragg is addressing this case, as if Mr. Trump were another citizen in danger of being indicted and potentially convicted.

But can I just address the Costello name that you just mentioned? Again, I know a lot about this being in the room with the prosecutors and with Michael Cohen. But I can reach you something that was published in today's Daily Beast, which is Mr. Costello's own email. Let me read it to you and you speak up. You let your viewers decide on Mr. Costello's veracity.

I'll let that be up to them. Here's his email, quote, "Our issue is" -- this is when they were trying to lure Michael into being on the Trump team, staying in the tent continuing to lie as he was told to do on his lie to Congress and continuing to lie about the hush money payment that the Southern District of New York prosecutors instructed on papers said

that Trump instructed him to pay, directed him to pay.

[09:20:19]

But let me just read this quote from Mr. Costello and that's all I'm going to say about Mr. Costello. His problem is his own emails speak for themselves. And I'm quoting, "Our issue is to get Cohen on the right page, without giving him the appearance that we are following instructions from Giuliani."

And I'll tell you that there are other emails that have been published in the New York Times and elsewhere, where Mr. Castelo, is actually trying to impress Mr. Cohen that he's so close to Mr. Giuliani. Here's the text of a voicemail message. And Mr. Giuliani's, quote, "Client holds you in great favor."

So this is all part of dangling --

SMERCONISH: Lanny --

DAVIS: -- (inaudible) dangling everything else, and that's all I can say about Mr. Costello.

SMERCONISH: Lanny, hopefully you can tell us this. Do you expect that Michael Cohen is going back before the grand jury in Manhattan this week?

DAVIS: I have no idea. I can't say that he can't go back in front of the grand jury unless I'm there. And I've gotten no phone calls and no invitations. We were there in case Mr. Costello needed to be contradicted. And we sat for two hours waiting. And then we were told, no, we don't need you. So that speaks for itself. I don't know, Michael, is the answer.

SMERCONISH: Doesn't the fact that Michael Cohen has repeatedly testified before the grand jury suggests the importance of his testimony, and the lack of corroboration that exists for it?

DAVIS: No to the contrary, and I'm not going to be specific here. So I'll say it generally. This case is about documents. It's about the Southern District of New York, Justice Department under Donald Trump, which conducted both the FBI search under extensive warned of Michael Cohen's documents, and it's about all their investigations.

And here's what the Southern District of New York federal prosecutors said. Donald Trump instructed Michael Cohen to pay illegal hush money, to influence an election. And that is what --

SMERCONISH: But the Southern -- DAVIS: -- Michael going to jail. So that's my answer to your question

about it.

SMERCONISH: OK, but the Southern District passed, right? I mean, they said that this was trivial, according to Elie Honig's book and he broke it. They passed on taking the case --

DAVIS: Elie Honig is inaccurate. Elie Honig is inaccurate. He's making that up. There is no quote --

SMERCONISH: Then why didn't the Feds -- I have to ask this, why didn't the Feds prosecute for the same facts? Trump.

DAVIS: Because he was an incumbent president. Let me repeat that.

SMERCONISH: How about when he got out?

SMERCONISH: The federal prosecutors never once suggested that they didn't have a case against Mr. Trump. In fact, they declared they had the same case against Trump they did against Cohen. They said that Trump instructed Cohen to pay hush money but they couldn't prosecute, because he was an incumbent president. In fact, they called him individual one.

SMERCONISH: But Lanny, he's not the president now. He's not the president now. Surely, they took a look at him when he got out of office.

DAVIS: So you're absolutely right, this Justice Department could prosecute for the federal crime that Donald Trump's Justice Department declared he had committed when he -- if somebody goes to jail for doing something the person that directs you to do it doesn't is because he was an incumbent president.

Now Mr. Bragg as the frontline prosecutor has taken the lead on the prosecution of this crime. And the Justice Department is focusing its attention on the insurrection. But certainly, yes, there was a federal crime. The Justice Department under Donald Trump declared that Trump directed Cohen to pay the hush money.

SMERCONISH: Lanny, novel, risky, untested, all words that have been used not by some conservative outlet, but by the New York Times and The Washington Post to discuss the Alvin Bragg case. If in fact, it's so novel, risky and untested because they're trying to twin two different charges, why not just charge Trump with the misdemeanor for the falsification of the business records?

DAVIS: First of all, it is definitely untested because to raise the misdemeanor to a felony, you have to show another crime. That doesn't make it difficult. It just makes it untested. The second crime I just told you, I can't keep repeating myself, Michael, the Justice Department under Donald Trump declared that he had directed the crime and Michael did the time.

Now that crime can be proven in New York State with the same evidence by Mr. Bragg. So the answer to your question is, yes, it's novel. That doesn't mean it's difficult. The -- Mr. Trump committed a crime under New York State law by doing something, directing somebody do something illegal, influencing an election. We'll let the lawyers argue about that.

[09:25:05]

That doesn't make -- the facts are the same and in fact this coup and Mr. Bragg's operation, in my opinion being in the room are meticulous and detailed surrounded by documents in Michael Cohen's veracity cannot be challenged as of July 2, 2018. Just remember that date. That's the date when he went public and said for my country and my family, I'm not going to lie or do Donald Trump's dirty deeds that I did for 10 years.

And then he did that in front of 100 million people by taking responsibility in a public hearing in Congress. That point forward --

SMERCONISH: Lanny --

DAVIS: -- is cooperated with every investigator, with Mr. Mueller, 700 hours spent in front of investigators including two grand jury appearances, and he did not take the Fifth Amendment and contrast to, you know who.

SMERCONISH: Lanny, thank you. Wish we had more time.

DAVIS: I'm sorry, I captured a lot of the time here but there's a lot of misinformation that wanted to be brought here. Thank you, Michael.

SMERCONISH: Yes, next time, don't hold back your emotions. Tell us what you really think.

DAVIS: Thank you.

SMERCONISH: Up ahead, Utah, first state, taking aggressive action to address the negative impact social media has had on teens mental health, with a new law requiring minors to get permission from their parents before they can sign up for a social media site. Is this a good idea?

Please go to smerconish.com, you can use the QR code if you would like, to answer this week's poll question. "Should parental consent be required before minors can join social media?"

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[09:30:49]

SMERCONISH: Hey, quick programming note. You just heard Lanny Davis say that Elie Honig is wrong in reporting that the Southern District of New York passed on prosecuting Donald Trump for the Stormy Daniels facts loosely described. So we're reaching out to Elie to have him come back on this program and offer a very quick rebuttal. So stick -- stay tuned for that.

First, is the clock running out on TikTok? Shou Chew, the CEO for the social media giant face grueling questions on Capitol Hill this week from both sides of the aisle over national security and data privacy concerns for U.S. consumers. Its parent company, ByteDance, is based in China, but the CEO claims the company does not share its data with the Chinese government.

TikTok has 150 million monthly active users in the U.S. Chew was also pressed on the negative impact of the app on teens' mental health. Florida Republican Congressman Gus Bilirakis went after the CEO alleging the platform is promoting content that encourages teens to harm themselves.

(BEGIN VIDEO CLIP)

REP. GUS BILIRAKIS (R-FL): I want to share the story of Chase Nasca, a 16-year-old boy from New York, who tragically ended his life a year ago by stepping in front of a train. The content in Chase's For You page was not a window to discovery. Instead, his For You page was sadly a window to discover suicide.

(END VIDEO CLIP)

SMERCONISH: Chase's parents were at the hearing sitting behind Chew clearly overwhelmed with emotion. On that same day as the hearing, Utah's governor signed a bill requiring minors to get their consent from their parents before joining any social media platform. It's the most aggressive step yet to shield kids from potential dangers online.

Joining me now is Utah State Senator Mike McKell. He introduced the legislation. What are you seeking to do, senator?

MIKE MCKELL (R), UTAH STATE SENATE: Well, we want to see some broad change across the system. We are very concerned with what we've seen out there in the public.

I appreciate the fact that you bring up the issue of mental health. We've got a mental health crisis. I know you've covered it in your show before. There are a lot of negative impacts from social media and we want to change that. We want to see significant change.

I really appreciate Congress right now, the president of the United States. There's good bipartisan support. I think we're all on board and that's the goal.

SMERCONISH: I'm going to put up on the screen. I don't know if you'll see it. But allow me to just read a couple of bullet points as to what your legislation will do.

Verify adult age of Utah residents seeking to open and maintain an account. Get consent of a parent or guardian for users under 18. Create curfew settings that block access overnight. Block underage accounts from search results. Social media company cannot collect a child's data. Social media company cannot target a child's account for advertising.

Let's drill down for a moment on the parental consent. It's like you're forcing minors to have to get the consent of their parents. A critic might say, hey, parents ought to be better managing what goes on in their household. Why do they need the Utah government to tell them that's what's necessary?

MCKELL: You know -- and I wish that was the case. I wish all parents would step up. It's simply not happening.

One thing I would point out in the State of the Union address President Biden said, we need to stop this experiment on our kids. And one of the things he said, and it shows up and you'll see in your bullet point is we restrict -- you can't collect data on our kids any longer.

We wish these programs when we look at the data, kids have multiple, multiple platforms they're all signed up with. It's difficult for parents to monitor that. We want -- we want to empower parents.

I've gone out and we've talked to parents. Parents want to be involved in the process. They don't know how. It's difficult. And what we want to do is catch up and catch up with the technology.

SMERCONISH: I'm really concerned about this problem. You're -- you're right to note that I've discussed it on many occasions.

A critic might say, however, that socially isolated kids -- like this is their lifeline to stay connected. And now if we're making it harder for them to be online, they're going to be further marginalized.

[09:35:01]

What would you say to that?

MCKELL: You know, I think that's a -- I think that's a concern that we all -- we all speak with. But what I would say is, if we've got kids that are marginalized, we need credibility first and foremost. And we built this process out there in the world for decades with school counselors. In Utah we have an app called SafeUT.

What I would say is we should bolster -- we should bolster the credible resources that we have today. I think, it's really difficult to say we should turn our kids lose. Put them in a chat or a forum with individuals that we don't know who they are. We don't know how to trust them. And if we -- if we're worried about that let's bolster the resources that we've been bolstering for decades where there is some credibility on the ground.

SMERCONISH: Senator McKell, here comes some social media. Stay with me. I'll read it aloud and you and I can respond together.

What do we have? Put it up on the screen.

Ha-ha! Good luck with that. Kids will always find a way, says Mighty Woman with a Torch.

I mean, it's a good point, right? They are so ingenious. Won't they figure out a work around? MCKELL: You know some kids will. There's certainly no question. When I drive down the freeway I might break the law and I might exceed the speed limit. But the vast majority, I think, are going to comply.

There's no question there's going to be leakage. We're not going to capture everybody as a lawmaker with any law that we passed. We always have folks that find a way to skirt the law. That's nothing new.

SMERCONISH: All right. You've inspired today's poll question at Smerconish.com. So, make sure you're voting on it. And thank you, senator.

MCKELL: Thank you for having me on.

SMERCONISH: Here is the question. Should parental consent be required before minors can join social media? That is, among other things, that's what Utah is doing. When you're at Smerconish.com make sure you're also registering for the daily newsletter. Thank you for that. It's free, and it's worthy.

Still to come, can a landlord -- listen to this question now. Can a landlord ask a prospective tenant whether they've got a criminal record? A Seattle court just ruled on that difficult question. I'm going to drill down on it next.

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[09:41:13]

SMERCONISH: Can landlords ask a prospective tenant whether they've got a criminal record? In advertising, they can't say things like the apartments perfect for an able-bodied person or that it's a short walk to church or that it's an adults only property. That's because the Fair Housing Act prohibitions on discrimination based on all of these factors.

But what about rap sheet? That's the thorny question raised by a legal ruling in Seattle this week. The Ninth Circuit Court of Appeals struck down part of the city's Fair Chance Housing Ordinance saying it infringed on landlords' First Amendment rights.

The Seattle City Council passed the ordinance in 2017. It barred most landlords from asking prospective tenants about their criminal history or refusing to rent to tenants because of their record. It was intended to help those with criminal records access housing and to protect against policies that might disproportionately harm renters of color because of disparities in the legal system.

Joining me now is Seattle City council member Lisa Herbold, who was a sponsor of the original ordinance. Council person, thank you for being here. This is a confusing ruling. Correct me if I'm wrong, because they say, well, you can ask -- you can ask, but you can't act on it. It seems contradictory. No?

LISA HERBOLD, SEATTLE COUNCILMEMBER, SPONSOR, "FAIR CHANCE HOUSING" ACT: It is a little bit of a conundrum because now if these ruling stands, the city is going to need to determine how we can make sure that information seen is not information used.

SMERCONISH: What would you say to a landlord who says, hey, I just want to protect myself and the tenants of my property by knowing who's there because God forbid something happens, I'm going to be held accountable?

HERBOLD: Sure. Well, you know, there's no demonstrated research that shows that somebody with a criminal background is more likely to be a bad tenant. In fact, one in three of us in this country have some sort of criminal justice system involvement.

And, you know, landlords aren't responsible for not screening their tenants because of the fact that there isn't a nexus between somebody's criminal background and the likelihood of them being a bad tenant.

SMERCONISH: There's an exception -- correct me if I'm wrong. There's an exception in the law that you initially sponsored for sex offenders. How are they treated in this?

HERBOLD: So the law -- the recent ruling is not actually going to impact that particular type of regulation because the existing law allows for landlords to screen for sex offender registry information and allows them to use it in screening for adults. It does not allow them to use it for youth, though, because the studies show that youth engaged in prior sex offenses are very, very less likely to recidivate.

SMERCONISH: I mean, I get it. Your intent here is to try and give people a fresh start, right? They've done their time. They're now free of the entanglement of the system. And if they don't have housing much like, you know, the whole debate about check the box in employment -- if you're not going to allow somebody to get a job and to get shelter, then don't be surprised if they end up back on the inside. Is that it?

HERBOLD: That's exactly it. You know if you support safer communities, you should support this policy because housing reduces recidivism. And also -- this policy also supports strong families because half of our nation's children have at least one parent with criminal system involvement.

[09:45:00]

And it's also a stand for fairness because our system works in a way that when you've served your time, or if you haven't been found guilty at all, you should not be punished again. And, you know, an extrajudicial punishment outside of that system is at odds with a just society.

SMERCONISH: It reminds me -- this may sound like an oddity to you, but it reminds me of Michael Vick, who went away because of atrocities that he did with dogs. I'm a dog person. Then he came to my football team, the Philadelphia Eagles, and I had to say to myself, well, wait a minute. He paid his debt to society and, you know, the man is entitled now to earn a living.

Here's some social media. Put it up on the screen and the council person and I can look at it together. I'll read it aloud.

It's public knowledge, really obtainable information. They can ask and if they choose to disclose that will be a good test.

You know, council person, when I talked about this on my radio program this week, people did say any landlord, you know, with access to a search engine could figure these things out. Quick response from you.

HERBOLD: It's true. I think, it's interesting that we've had this lawsuit that we have been dealing with for a number of years since the passage of the law, given the fact that this is easily attainable information. And the fact that it's easily attainable information and more so with passing years also means that it can be more harmful.

You know, 20 years ago, this information wasn't so available and it wasn't so much a question when making those rental decisions of about somebody's criminal history.

SMERCONISH: It's a provocative question. Thank you for being here to explain it to us. We appreciate it.

HERBOLD: Thank you so much for having me. I really appreciate it.

SMERCONISH: OK, still to come, the final result of this week's poll question. Of course, I want you to go to Smerconish.com. But hold on. I got to ask this. Did we get Elie Honig back? Is he going to come back in a moment? He's going to come back. OK. All right.

Go vote at Smerconish.com. Should parental consent be required before minors can join social media? And stick around, a quick rebuttal from Elie Honig to that which Lanny Davis had to say a few minutes ago.

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[09:51:41]

SMERCONISH: OK live television. Love it. Did the feds pass on prosecuting Donald Trump for the Stormy Daniels case?

Early in the show I had Michael Cohen's lawyer Lanny Davis on. He said that Elie Honig, my prior guest, was inaccurate in reporting in his book that the feds had passed on prosecuting Trump for the alleged hush money scheme. Here's the exchange we had.

(BEGIN VIDEO CLIP)

DAVIS: Here's what the Southern District of New York federal prosecutors said. Donald Trump instructed Michael Cohen to pay illegal hush money to influence an election. And that is what sent Michael Cohen to jail. So that's my answer to your question about --

SMERCONISH: But the Southern District -- OK. But the Southern District passed, right? I mean, they said that this was trivial, according to Elie Honig's book and he broke it. They passed on taking the case --

DAVIS: Elie Honig is -- SMERCONISH: -- that Alvin Bragg is going now prosecute.

DAVIS: Elie Honig is inaccurate. Elie Honig is inaccurate. He's making that up.

(END VIDEO CLIP)

SMERCONISH: All right. Back with me now to reply live, CNN senior legal analyst Elie Honig. I'm giving you a 60-second rebuttal. What do you want to say?

HONIG: Three points. First of all, of course, the Southern District passed on charging Donald Trump for the hush money. We know that because they haven't charged him in 2018. When Michael Cohen was being prosecuted, they could not charge Trump because he was sitting president. But they had a series of meetings in 2021 when Trump was leaving office and decided against it. That's a fact.

Second of all, Mr. Davis leaves off a very important part. He says, the Southern District said Donald Trump told Michael Cohen to do it. He leaves off what comes before that in that memo. The Southern District says Michael Cohen says Trump told him to do it, which brings me to the final point.

One of the big reasons the Southern District did not charge this is because they did not believe Michael Cohen. They found him not credible. And here's a quote from a letter the Southern District wrote on December 7th, 2018 to the federal judge in the case. They wrote that Michael Cohen's statements to the Southern District were -- quote -- "Overstated in some respects and incomplete in others" -- end quote.

Michael Cohen tried to cooperate with the Southern District. They found him to be not credible, and that's a big reason why they passed on charging Donald Trump.

SMERCONISH: Look, I don't have your book here. I read it. I'm doing this from memory. But the word trivial stands out in my mind. Didn't you also report that the feds found these facts to be rather trivial on which to base a prosecution of a former president?

HONIG: Absolutely. This goes back to the discretion point we were talking about before, Michael. They felt that the evidence was a close call. But on balance they felt like given the nature of this conduct compared to January 6th, which is just happened compared to the Mueller investigation felt pretty low on the list of importance.

SMERCONISH: All right. I'm going have to give Lanny a surreply. Lanny, love you. You'll come back on the program at a point. We can arrange it and reply to Elie. But I wanted to hear from you. So, thank you. Thank you, Elie.

HONIG: And I'm ready for a surreply.

SMERCONISH: OK. Yes, sir. Here's the poll result. Let's do it. Put it up on the screen. Totally different subject. Should parental consent be required before minors can join social media? Well, 27,000 and change voted. And 91 percent say, way to go, Utah.

[09:55:00]

Because that's exactly what the State of Utah has just done. Some of your social media reaction. What do we have?

Do you think certain social media outlets should force teens to acknowledge that they could face attacks on their mental health? That they could face attack. Do you think certain social media should force teens to acknowledge that they could face attacks on their --

I candidly don't understand that point. So instead, I'm going to -- I'm going to dodge and simply say this. There's so much data out there showing that a switch got thrown in this country in or about 2007 and eight with a skyrocket of mental health issues with our kids just when everybody had a smart phone in their pocket. See you next week.

Oh, quick programming note. Adam Sandler -- such a funny guy -- and his funny friends are all coming to CNN. The Kennedy Center presents the Mark Twain Prize for American Humor celebrating Adam Sandler. Hey, this sounds great. Tomorrow night, 8:00, CNN, that's Eastern Time.

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