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SMERCONISH

Race for 2016: First GOP Debate Looming; Outcry Over the Death of Cecil the Lion; NTSB, Boeing Teams Heading to France; Disturbing Questions About Cincinnati Shooting. Aired 9-10a ET

Aired August 1, 2015 - 09:00   ET

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


[09:00:00] MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish. Welcome to the program. Let's get ready to rumble.

Just a few days until the first GOP debate and as the candidates fight to get on the debate stage, you might be surprised at who will determine the final line-up. It's not the Republican Party.

Caught on camera -- literally. You've seen the University of Cincinnati video but have you heard what the officer charged with murder was told to say by a fellow officer?

And the latest on one of the great aviation mysteries of all-time, MH flight 370. What can be learned from one key piece of evidence?

More on those stories in a moment.

But first, according to Gabriel Sherman in the latest issue of New York Magazine, not long after Roger Ailes helped Richard Nixon win the 1968 election, the future Fox News president boasted to a reporter that television would one day replace the political party as the most powerful force in American politics. Well, we're less than a week away from the first GOP presidential debate of the 2016 campaign and Ailes' prediction might just have come true.

Next Thursday, 10 candidates will gather on a Cleveland debate stage in a primetime event sponsored by Fox News. The participants will be determined by the results of five national polls. Eight of the competitors seem secure. But Chris Christie, John Kasich, and Rick Perry are on the bubble. One of them seems destined for the so-called "kiddie table" earlier in the evening.

If the Republican National Committee isn't sure on which five polls Fox will rely, doesn't that give the Conservative cable network great latitude in determining the participants? After all, there are differences among the pollsters. And some of the candidates make for better TV than the others.

Now, of course, next month, CNN will host the second debate and my same critique might apply here. The point is a winnowing role historically played by early voting states has arguably been left to television much like Ailes predicted.

Joining me now is Sean Spicer. He's the chief strategist and communications director for the Republican National Committee.

Sean, as things stand now, it would appear that Donald Trump will be dead center of that stage next Thursday, flanked by Jeb Bush and Scott Walker, with the outer flanks yet to be determined. Is that a fair way to sum it up?

SEAN SPICER, CHIEF STRATEGIST & COMMUNICATIONS DIRECTOR, RNC: Yes, that seems to be the case but we still have a little ways to go.

SMERCONISH: So Tuesday at five p.m. is the cut-off for the polls that will be used to determine who the participants will be?

SPICER: That's right. That's what Fox has announced the cut-off will be. Yes.

SMERCONISH: Does the RNC know on which five polls Fox will rely?

SPICER: No. Fox has said that they'll use the latest five nationals that meet their standards. My understanding is they'll announce those -- what their criterias. But there are people that are constantly out there polling and I think what Fox wants to do is ensure that they've got the latest polls that have been completed to ensure that if anyone's surging one way or the other, that the top 10 and the bottom six are the most representative of the polls that have been most recently completed.

SMERCONISH: But doesn't the RNC then worry that it has ceded control for this first and important debate to television executives at Fox?

SPICER: Well, I mean, the law is very clear on this -- that the RNC cannot - nor can any political organization -- actually set the criteria and format. The RNC can be involved in sanctioning debate but when it comes to the format and the criteria, the law is very clear.

SMERCONISH: I guess the concern that I'm expressing is one of polls come to different conclusions and maybe someone can say, "Rick Perry -- he's pretty good TV. He had that 'Oops' moment last cycle. We want to make sure he's on the stage where he's neck-and-neck with Governor Kasich. Maybe we go for a poll that shows Perry running ahead of Kasich." How do you prevent against that?

SPICER: Well, I mean, the first thing I would say -- and this is true for both the case of Fox and CNN -- look, we -- right now, this cycle -- suffer for an -- suffer from an abundance of riches. We've got 16, 17 candidates of great stature. In past cycles, Michael, I mean, there would have been a lot of people that would have been left off, completely silenced, because they're not even hitting the one percent threshold. So in the case of both Fox and CNN, I just -- I think that we should actually -- to some degree -- focus on how inclusive this process has been.

SMERCONISH: And maybe, by the way, I'll have the same criticism when we get to the CNN debate which is next month in September -- September 16 -- and you can come back and I promise, you can make all these same observations. But right now, all of the money for ads is being spent on Fox News and I've got a tally which I can put on the screen of just how many appearances the candidates have made on Fox alone. It's staggering and I guess I'm wondering if in the big picture, the role that was once played by Iowa, the role that was once played by New Hampshire, is now being played by one media outlet.

[09:05:10]

And frankly, Roger Ailes -- a long time ago -- said that there'd come a day when television would supplant the role of the party and I wonder if that day is today?

SPICER: No. I mean, at the end of the day, they're still using polls. They're not choosing these people. In the same way that CNN and every other network is going to use some mechanism or polling to say who are the -- who are the people that meet the criteria to get into this debate, Fox is doing the same thing. I mean, so they're not choosing anybody.

SMERCONISH: One other observation -- if I might. Jackie Calmes, who is a national correspondent for the New York Times, just wrote a paper for the Kennedy School at Harvard University and it's a detailed report. It's really an academic paper. But I want to show Sean Spicer just one statement from it and ask you to react. She wrote, "Conservative media have helped push the party so far to the anti- government, anti-compromise ideological right, attacks Republican leaders for taking the smallest step toward the moderate middle." Do you worry that so much emphasis on Fox's role in this first debate has that intended -- has that unintended effect, it pushes the candidates to a rightward position that becomes untenable in a general election?

SPICER: No. Not at all. In fact, I think that -- with all due respect to Jackie and to Harvard and the New York Times where she writes -- I mean, I think that the problem is is that for so long, that the left-wing, mainstream media has taken people to the left and only focuses on issues that a lot of Conservative activists and Republican voters haven't cared about, that there's sort of a shockwave through a lot of the mainstream media when they recognize how the issues and the concerns the Conservative media are bringing up that don't go covered. You look at this recent "planned parenthood" scandal. It's the Conservative media that's out there bringing that scandal to light and to shed -- to share the concerns that are coming out. If left up to the New York Times and the rest of the mainstream media, it would get swept under the rug.

SMERCONISH: But if you go back and you look at what happened four years ago, you see Governor Romney running as someone who frankly didn't reflect the record that he had as a governor of Massachusetts. Maybe if he had been the real Mitt Romney, he'd have a tough time in primary season but he'd have been a stronger general election candidate. I think that's the kind of tension that she's commenting on in this paper.

SPICER: I think our party is doing just fine. Our candidates are doing just great and I think that there's a little bit of concern in the mainstream media when you look at the market share that have come -- that a lot of these newspapers have. They're losing and I think that what happens is you see the growth of Conservative media that is -- and I think it's worrisome, frankly, to a lot of people in the mainstream media when they realize that it's a dying -- it's a dying medium and they get concerned the Conservative media is getting the attention and the issues that they once covered. They don't get to set the agenda anymore.

SMERCONISH: A final question, if I might, on the Donald. Thus far, as of right now, has he been a positive or negative influence on the GOP process?

SPICER: Well, look, I think when we have 16 candidates that kind of are all over the spectrum on a lot of things, it's good for the party. And the reason I say that is at the end of the day, the more people that are paying attention, the more people are involved in this process, it's good for the party. It brings more eyeballs. It brings more attention to the race. At the end of the day, whether it's Donald Trump, Ben Carson, Rand Paul, Ted Cruz, Jeb Bush -- all of these people are bringing more and more people into the Republican Party and some of them come from different perspectives and it makes our Party -- at the end of the day -- much, much stronger as we head into a general election.

SMERCONISH: I will say this, I can't remember a first out-of-the- shoot debate in August, for crying out loud, that has the kind of interest building around this one. Thank you so much for being here.

SPICER: Thanks, Michael. You bet.

SMERCONISH: Donald Trump continues to lead the GOP polls as Republican candidates prepare for their first debate. How will his competitors handle the Donald when they share a stage? And will Mr. Trump modulate his tone in primetime?

On the Democratic side, Hillary Clinton's campaign fired off a testy letter to the New York Times. Bernie Sanders drew a 100,000 participants to an event streamed for supporters. And observers wonder whether Joe Biden's time has come.

I have two pros to break it all down. Jeffrey Lord is a former Reagan administration official and contributing editor to the American Spectator. He's a Trump supporter. Ana Navarro is a CNN political commentator and Jeb Bush supporter.

Ana, I want to start with you and I want to begin by showing you video from what happened in Florida yesterday. Hillary Clinton launched what's been described as "a biting surprise attack" on your guy, Jeb Bush. Let's watch.

(BEGIN VIDEO CLIP)

HILLARY CLINTON, (D) PRESIDENTIAL CANDIDATE: I don't think you can credibly say that everyone has a right to rise and then say you're for phasing out Medicare or for repealing Obamacare. People can't rise if they can't afford healthcare.

[09:10:02]

They can't rise if the minimum wage is too low to live on. They can't rise if their governor makes it harder for them to get a college education. And you cannot seriously talk about the right to rise and support laws that deny the right to vote.

(END VIDEO CLIP)

SMERCONISH: And, of course, Right to Rise -- I should point out -- is the name of Jeb's super PAC. Now, the Times at least says Jeb Bush was thoroughly unprepared for the attack. Here's my question, Ana. What if on Thursday night, the Donald launches that kind of an attack on Jeb Bush? Will he similarly be unprepared?

ANA NAVARRO, CNN POLITICAL COMMENTATOR: Well, first of all, I'm not sure how the Times knows that Jeb Bush was unprepared. I think Jeb Bush was prepared to go give the message he was there to give and he wasn't going to deviate from that because of what Hillary Clinton said. I think Hillary Clinton's attack on Jeb at the Urban League was inappropriate. It's not a political organization. It's a civic organization. They were very nice to every candidate that was there and I think it shows you that Hillary Clinton is concerned about Republicans actually showing up and competing for the black vote or the Hispanic vote. And they should be concerned because if Jeb Bush is the nominee, he's not going to (inaudible) an inch on any one community. About being prepared for Donald Trump, look, I think what every candidate needs to do -- Jeb and then everybody else -- is prepare for a Republican debate. I think the one that should be preparing is frankly, the debate moderator. I think he's got a much tougher job next week. That would have made me more nervous.

SMERCONISH: Jeffrey, does your guy need to take it down a couple of notches?

JEFFREY LORD, FORMER REAGAN WHITE HOUSE POLITICAL DIRECTOR: No. I think that's a mistake. And you know, the story here about Governor Bush not responding and you go back to Governor Romney in the last debate there with President Obama. This is sort of the problem with moderate Republicans and that is - I think -- why Donald Trump is so popular among other things is that he really does answer.

SMERCONISH: You know what's interesting -- I want to show some footage from Bloomberg because Heilemann and Halperin recorded some insights from Trump's supporters. Why exactly are they for the Donald? Watch this.

(BEGIN VIDEO CLIPS)

UNIDENTIFIED FEMALE: He speaks the truth. He doesn't care what people think.

UNIDENTIFIED FEMALE: Unchoreographed.

UNIDENTIFIED FEMALE: He is honest.

UNIDENTIFIED FEMALE: I like his roughness and little Reaganesque...

UNIDENTIFIED MALE: Trump is a threat.

UNIDENTIFIED FEMALE: Yes.

UNIDENTIFIED MALE: Because he doesn't fit in the same box all the other Republicans are in.

UNIDENTIFIED FEMALE: He's like one of us. He may be a millionaire (inaudible) separates him from everybody else but besides the money issue, he's still in tune with what everybody is wanting.

UNIDENTIFIED FEMALE: I knew that he was a wealthy successful man and I remember asking my mother if I could write him a letter to ask him how he made his money so that I could do it too.

UNIDENTIFIED MALE: I think he's a successful person. He's successful.

UNIDENTIFIED MALE: I want to be a billionaire.

UNIDENTIFIED MALE: To the American people, it would be a presidency of hope.

(END VIDEO CLIPS)

SMERCONISH: Ana, I have to say, he's at 20 percent in the polls. He's at 80 percent on the passion index. How can Jeb Bush or any of the other Republicans match that type of intensity?

NAVARRO: They can't. They can't. I mean, they have -- frankly, they have -- they can't out-personality Donald Trump. They can't outrage Donald Trump. They can't out-Trump Donald Trump. So they've got to be themselves. They've got to be the foil to Donald Trump. Let Donald Trump be Donald Trump and everybody else on that stage has got to offer policy positions, have got to offer solutions, have got to address the problems and the questions and stick by the rules, frankly. And people have got to decide at some point, "Do we want entertainment? Do we want the outrageous character? Or do we want somebody that is presidential?" That's going to be the choice. But they can't outdo Trump.

SMERCONISH: Jeffrey, you just published a piece where you try and distinguish among Conservatives and you address why for Charles Krauthammer, why for Karl Rove, why for the Wall Street Journal editorial page, the Donald is not the ticket. Give me the short version.

LORD: The short version is I think there's a -- there's a separation of sorts between the establishment Republicans and the Conservative base, the kind of folks that you just heard in that -- in that bit from Bloomberg. And one other thing, Michael, you're right about television. And all of those people that were just in that focus group, they're long television watchers - I'm sure -- as are most Americans. So they are fairly sophisticated, I think, in understanding this kind of thing.

SMERCONISH: Let's switch to the other side of the aisle. I have two Republicans as guests but we can all comment on what's going on among the Ds.

Hillary Clinton's campaign fired off a 2,000-word letter to the New York Times, Ana Navarro, complaining about their treatment relative to the email scandal. Here's my observation -- has the Times unintentionally helped Hillary Clinton? Because now, whenever this issue comes up in the future, people will remember the tainted reporting and they won't think that there's all that much to it.

NAVARRO: Now, you tell me, Michael Smerconish, if I had told you two months ago, two years ago, that the leading Democrat was going to be complaining about Liberal New York Times and that Donald Trump was going to be running in 2016, would you not have told me I was smoking something?

[09:15:12]

SMERCONISH: Yes, I would.

NAVARRO: I think -- I think she can write off all the letters she wants. The problem she has is that this email problem is not going away. It is a constant drip, drip, drip. We see things happening, developments happening, every single week. This week, we learned there were five intelligence agencies that had emails into her private server. We learned that her very close spokesperson had to hand in 20 boxes of emails to the judge under judicial order. So it's a problem that doesn't go away and it doesn't smell good. It just does not pass the muster. SMERCONISH: Jeffrey Lord, because your guy is taking all the oxygen out of the room, overlooked is that Bernie Sanders had 100,000 people participate in a streamed event this week. Are we underestimating him?

LORD: Yes, I think we are. To me, Bernie Sanders -- I hate to confess this but I'm old enough -- Bernie Sanders is Eugene McCarthy of the modern day Democratic Party. Senator McCarthy ran against LBJ. Everybody said he had no chance. He almost upended him in New Hampshire. He brought Bobby Kennedy into the race and by the end of March, LBJ was out. So yes, I think he could really cause problems for her.

SMERCONISH: And my observation given what's going on and the unsettled nature of this, if I'm Joe Biden and I'm in Wilmington, man, I'm really giving this a lot of thought.

LORD: Right.

SMERCONISH: By the way, thank you. Two pros. I appreciate your being here.

LORD: Thanks, Michael. Thanks, Ana.

NAVARRO: Thank you, Michael.

SMERCONISH: When we come back, Cecil the Lion. Zimbabwe wants the dentist who killed him back to stand trial. But can he be extradited?

And American investigators head to France to help study that MH 370 plane part that washed ashore. I'll talk to the best person I know about what they hope to learn.

Plus, that horrible Cincinnati shooting video. What happens when you slow down the tape? You might be very surprised.

(COMMERCIAL BREAK)

[09:20:01]

SMERCONISH: Welcome back.

Doctor Walter Palmer is still in hiding. He's the Minnesota dentist who killed Cecil the Lion.

If you're in social media, you would think Palmer committed the crime of the century. There are lots of angry Cecil supporters calling for his head. And so is the animal rights group PETA -- People for the Ethical Treatment of Animals -- which says he needs to "be extradited, charged, and, preferably, hanged."

Joining me now is Ingrid Newkirk. She's the president and co-founder of PETA.

Ingrid, "preferably hanged"? Were you saying that in jest?

INGRID NEWKIRK, PRESIDENT, PETA: I didn't mean it, of course. I think he should face the music. He's a coward but he should go back to Zimbabwe and stand trial with the other two because he sets this all on foot -- to use a legal term. No, I don't want him hanging in the wind. I want him answerable for his crimes and I want these kinds of crimes committed by trophy hunters to stop.

SMERCONISH: What if he's telling the truth in saying that his guides -- he was relying on his guides for the level of expertise that was necessary and he thought that they had dotted all the Is and crossed the Ts?

NEWKIRK: My mother used to say, "Pull the other leg. It has bells on it." He was found guilty before, seven or eight years ago perhaps, of lying to the federal authorities when he illegally took a bear. And he's been to Zimbabwe before. He knows about that national park. He knew exactly where he was. And he was on the jeep. They baited the jeep to bring the lion, Cecil, out of the park. And then he's standing right there, blinding this lion with a huge spotlight. So he gets up within feet or a foot of the lion and still can't make a clean shot. And then, of course, they spend 40 hours before they find him with that steel arrow through him, having hidden in the bush.

SMERCONISH: I had -- I'm paying close attention but I hadn't heard that level of detail. Where are you getting it from?

NEWKIRK: It's coming from Zimbabwe. It's coming from all the reports of people who have spoken actually to the guides themselves, the guides who've turned themselves in, to people who were on the scene. You have these sorts of couch potato trophy hunters who go over to Africa and they wave a lot of money in front of people and they're basically wheeled out. Sometimes, they sleep -- they actually will shoot a lion or a rhino who's sleeping. It's very common for them to shoot at night because they can then blind the animal who's coming to eat.

SMERCONISH: What do you say to those who say it's a first-world problem, that in Zimbabwe, people are not unsettled by this, this is more accepted and it's accepted because they're so financially dependent on trophy hunting?

NEWKIRK: I'd say a couple of things. It's ugly Americans and Euro trash and we have to get rid of that. We don't want to be tainted by that -- any of us -- who have more money than sense. They could give that money to villagers. They could start programs. They could do something useful but they don't. They give it to a safari company probably owned by a couple of people, often white, and they get the money. The locals don't get it. They discard the carcasses so they're not feeding anybody. They're not subsidizing anybody's village life. It's bunk.

SMERCONISH: I had radio callers on my program this week who said, "Why all the concern over the lion? Why not more discussion about Black Lives Matter or the fetal tissue issue that concerns planned parenthood?" To them, you would say what?

NEWKIRK: I would say all lives are important and any good and kindness we can bring to the world is a great thing. It's not a competition. So the kinds of people who would be cruel to animals -- and I found this when I was an investigator for cruelty cases -- are the sorts of people who really don't give much concern for human life. Let's look after everybody. SMERCONISH: I had a poll on my website as to whether this sort of

trophy hunting should be illegal. 79 percent -- I'm one of the 79 percent -- believed that it should be. Having said that, I'm worried about this man's safety -- the dentist's safety.

[09:25:02]

I'm concerned about people taking matters into their own hands. I hope that there's a day in court for him, whether it's here or whether it's there, but let's just underscore we want the process to play itself out.

NEWKIRK: Oh, absolutely. And I think the anger is coming from nonviolent people who are outraged that somebody could take this high- powered crossbow and shoot an animal who is minding their own business. It's the violence is not on the side of the people who are asking for violence to be stopped. So he's in hiding. He's got a public relations firm issuing statements for him. He needs to go back to Zimbabwe. Be a man. Stand up to what you did and don't just pretend.

SMERCONISH: Ingrid Newkirk. Thank you so much.

NEWKIRK: Thank you.

SMERCONISH: The government of Zimbabwe wants Dr. Palmer sent back there to stand trial. I didn't pass the Zimbabwe bar but maybe Danny did.

CNN legal analyst Danny Cevallos joins me now.

DANNY CEVALLOS, CNN LEGAL ANALYST: I took it -- passed it on the fifth time, Michael. I feel like I'm ready to take the exam after the last few days, I will tell you.

SMERCONISH: I know because you've been -- you've been studying up on all of this. I think what we have to keep in mind -- you correct me if I'm wrong -- is much of what so offends us here is legal there.

CEVALLOS: Absolutely. Hunting is legal in Zimbabwe and in many African nations. Shooting a lion with a crossbow or a bow and arrow is also legal. And even shooting a lion with a radio collar apparently is legal in Zimbabwe. The charge here is apparently, that he -- it's about geography. He shot him in a spot that was not quoted for lions. So if there is a parallel in the United States, it might be hunting without a license or hunting in an area that is not laid aside for hunting, which is a law that we -- we have those laws not only federally but in all the states as well, because we have national parks. So there are parallels here in the United States and that will be key to the extradition process.

SMERCONISH: Ted Nugent sent me an email and said it's because this lion has a name. He said this goes on constantly but people are feeling cuddly about -- those are my words, not his -- because it's Cecil or Cecil.

CEVALLOS: I said the same thing. It's a lot about symbolism. I mean, about a hundred lions are being killed -- I understand -- in Zimbabwe alone per year. So why is this any different? Is it because this one is called Cecil? What about lion one, two, three, four, five, six, seven? And after all, come back, take your Google Earth trip back to the United States. We hunt everything here -- deer, bear, all kinds of things. Ted Nugent and I are both from Michigan. He and I both know all about black powder season, crossbow season. I don't hunt, personally, but almost all of my friends back home do. So it is part of our culture as well as the Zimbabwean culture itself.

SMERCONISH: So what's the issue now relative to extradition?

CEVALLOS: Let's talk extradition. Extradition treaties are generally very -- written very permissively. In other words, if a requesting state wants a person, the requested state -- here, the United States -- usually will give them up and under our extradition treaty, as long as there is what is called "dual criminality" -- if it's a crime in Zimbabwe and it's a crime here, then we should -- and I say "should" -- extradite that person back to Zimbabwe. And it's important. It could be a federal, a state crime that the parallel doesn't have to be a perfect match. As long as there is some relationship, some similarity, then under at least the treaty, he should be returned.

SMERCONISH: Who makes the call? CEVALLOS: Well, it's an interesting question. First, legally, the court makes the call. The -- his attorneys will bring the man into court. There will be a hearing. It's essentially a probable cause hearing which we criminal defense lawyers deal with all the time. It's a very light burden for the government to win. Most of these cases are held over for trial. But in this case, finding probable cause that this crime was committed is going to very, very easy. So legally, I'll say that -- legally, I'll say that it's a decision that is made by the court. But really, it's a political decision because aren't all extradition treaties really nothing more than contracts and contracts that can be broken without any remedy? After all, what are you going to do, Zimbabwe? I mean, that's what the state department can say.

SMERCONISH: Here's what I'm wondering -- is it the state department that is going to make that political decision? Are you telling me that Secretary Kerry is going -- I don't want to minimize -- I'm offended by what I see in this case. But that Secretary Kerry is going to go from negotiating the Iranian nuclear deal to deciding the fate of Cecil the Lion? Is it him?

CEVALLOS: Absolutely right. Then it becomes a political issue of does the department of state even care enough to get involved or care enough to keep this guy? Because once it goes into the judicial system, the finding is very clearly laid out and it's almost a foregone conclusion that he will be returned. U.S. attorneys have very little discretion, it appears, in initiating extradition (inaudible).

SMERCONISH: So it's not the prosecutors, it's Kerry. It's Secretary Kerry.

CEVALLOS: It would be. Yes. And it really comes down to -- and again -- political is a little beyond my (inaudible), that's your -- you're the guru there but I will say that in a case like this, all these extradition treaties, international law everywhere, ultimately comes down to who has the most aircraft carriers.

[09:30:05] SMERCONISH: I can imagine now, PETA shifting their attention to Secretary Kerry's office, probably come Monday.

Thank you, Danny, as always.

CEVALLOS: We'll be writing letters.

SMERCONISH: After the break, the mystery of Malaysia Air 370. The one piece of the plane that's been found is in France and the NTSB and Boeing are headed there to help unravel the biggest airline mystery ever.

And, The Donald -- three times my predictions have been wrong about Mr. Trump. But it won't stop me from going for number four. My commentary is upcoming.

(COMMERCIAL BREAK)

SMERCONISH: American crash investigators and a team from Boeing are headed to France. They will try to help solve the mystery that's captured the world's imagination. What happened to Malaysian Air Flight 370?

Every day, authorities are more and more convinced that the part that washed up on Reunion Island was from the missing jetliner.

[19:35:04] Looking ahead to this week, I'm curious about what happens next.

I don't know anyone better to tell me that Peter Goelz. He's a former managing director of the National Transportation Safety Board.

Peter, one thing that's come to light given the discovery of this wreckage is that apparently there was a U.S. intel assessment that concluded that it was deliberate action that caused this crash. What is the evidence for that assessment?

PETER GOELZ, CNN AVIATION ANALYST: Well, my understanding on that, and I've talked to a couple of people about it, is that it was an open source assessment. Meaning that they took all of the available information that was in the public realm and had analysts review it and come to a conclusion.

And I think it's based on this, Michael. If the plane --

SMERCONISH: Is it -- I'm sorry. Go ahead, please.

GOELZ: If the plane did the U-turn, they were able to see it crossing the island of Malaysia. Then, it disappears. The speculation is that it goes north up the strait, around Indonesia, then back down into the Southern Pacific. If it made those turns, the only way it would do that is if it was under human control and someone was directing it. That's the basis of it.

SMERCONISH: Is the working hypothesis that that means it was the pilot?

GOELZ: Well, I'm not sure that anyone's taking the next step to brand the pilot as the culprit here. But if you take that intelligence assessment, someone in the cockpit with the ability to fly the plane made those decisions to direct the plane into a fatal dive somewhere in the Southern Pacific.

SMERCONISH: Is it fair to say that this newly discovered piece of wreckage tells us that the plane crashed in water but not how? GOELZ: That's right. I mean, this is -- this piece of wreckage, when

it is confirmed that it comes from Flight 370, is going to give just two basic facts. One, the plane is in the water. Two, we are looking in probably the right space.

SMERCONISH: Does this tell us down --

GOELZ: It's down off of Perth.

SMERCONISH: Does this tell us the plane crashed in the water while intact, or is there a possibility that this particular part dropped off ahead of the crash?

GOELZ: Well, we don't know that yet. They're going to look at the fracture surfaces and see under an electron microscope, they'll be able to determine exactly how this plane -- this part of the plane separated from the wing. And it will give us some indication of how the plane hit the water. It looks to many of us as though this piece might have separated from the plane before it plunged into the water because there's not a lot of compression damage to this wing. It might have separated during the last few moments of flight.

SMERCONISH: Final question and most important, perhaps -- have any changes been made since the crash of -- presumed crash of MH370 that will make us never have to go through this again, that there will not be a missing airplane?

GOELZ: Individual air carriers have made changes, but has there been a universal change in how we track planes over open ocean in the answer is, not yet.

SMERCONISH: Well, that's a shame. That's really sad, I think. I mean, the idea that there's a 777 that disappears is so tragic for those families.

Peter, thank you. Appreciate your time.

GOELZ: Thank you.

SMERCONISH: Coming up, that shocking Cincinnati police shooting video. Let's freeze frame the tape and see what we find. We're going to do that in a moment.

(COMMERCIAL BREAK)

[09:43:02] SMERCONISH: Like everyone, I'm horrified by the video of the University of Cincinnati shooting that shows Police Officer Ray Tensing shooting and killing motorist Samuel DuBose. It all happened so fast.

Is it possible that when the motorist, in response to the officer's command, moved to unbuckle his seat belt, the officer thought he was reaching for a gun and therefore had a reasonable fear that he faced imminent bodily harm? That's the critical question.

I have the perfect person to ask. Mark O'Mara, who represents Samuel DuBose's family.

Mark, I know you have seen this tape countless times.

MARK O'MARA, ATTORNEY FOR SAMUEL DUBOSE FAMILY: Yes.

SMERCONISH: I want to show this tape one more time in slow motion. You tell me what you are seeing.

There's the scuffle. It all happened so quickly. And now, it's done.

Is it possible, Mark, that the police officer says, "Take your seat belt off", and when the man reaches for the seat belt, the officer mistakes that for him reaching for a gun?

O'MARA: Is it possible? Certainly. We don't know what is in Tensing' mind at that precise moment. And that is certainly relevant.

But on the other hand, we have to look at this a little bit more globally. Tensing is the one who's supposed to be trained to de- escalate the situation.

Tensing could have done something as simple as, whose car is it? Rather than the suggestion that it came back to a female. He could have run his license when he asked him to. He could have done anything except to make the maneuver to try and get Sam out of the car without good justification.

And when Sam turned on the car keys, that's when he intended to do, he may well have intended to leave, but at that precise moment is when Tensing sticks his hand into the car without reason, without justification.

I don't see Sam going for his left side for the seat belt the way he did. I see his hand go up in response to Tensing's hand coming in the car. Then the very next microsecond, you see Sam's both hands come up as he leans away from the officer.

[09:45:07] That will be up to the jury some year from so or now. But what I do know is that Tensing was the one who escalated this rather than de-escalating it, and it ended up in the death of Sam without any justification or reason.

SMERCONISH: There are many significant aspects to the initial police report. I want to put up on the screen one of those that I find of significance. It says this, "Officer Kidd told me that he witnessed the Honda Accord drag Officer Tensing and that he witnessed Officer Tensing fire a single shot."

In other words, this is an account from one officer backing up the police officer's account who shot your client.

O'MARA: That is very, very troubling. And that is what is causing this tragedy of mistrust that we now have in law enforcement officers. Tensing deserves his day in court. Looks like he murdered Sam, we'll deal with that. But when you have an officer, actually two officers, who seemingly

will corroborate a false story, buddy to buddy or brother to brother, that type of mistrust that's being built in not just the black community but the community as a whole is horrific. And that is what's leading to more and more controversy between law enforcement and the community, because we know what happened, Michael. Right there in the precise moments of relevance, those officers, presuming the body cam wasn't going to contradict them or hoping it wouldn't, decided to back up Tensing's lie. And we now know it's an absolute lie about what did and didn't happen there, in order to protect his shooting.

SMERCONISH: We also hear one of the officers on the scene give advice to Officer Tensing. Roll that, please.

(BEGIN VIDEO CLIP)

POLICE OFFICER: Yes. Don't -- don't say anything.

(END VIDEO CLIP)

SMERCONISH: "Don't say anything", which suggestive on the surface that, you know, these police are all covering for one another.

O'MARA: You know, that's a tough call. Law enforcement officers are given an extraordinary privilege that I don't think I agree with, and that is they are told by everybody, "Do not tell your story."

And most departments have 12, 24, 48 hours, some 72 hours, before the police officers are required to give their side of the story in a police shooting where they are the focus. That to me is utterly dangerous. If one of my clients gets -- is involved in a crime and they can get past Miranda, they give the statement right away.

I understand police, I respect most police, they have a tough, tough job. But this is a prime example of how when we don't do it in a very transparent way, we can cause more mistrust and more problems, because we now know what happened with Tensing. He shot without justification. And he started his story of dragging, dragging, dragging, his arm went from not hurt to almost numb by the time the ten minutes after the video progresses.

It is horrific that these things are happening. And we have to train cops better and we really have to train cops to own responsibility.

SMERCONISH: Quick 30-second answer. What does this case mean to you personally? America knows you as George Zimmerman's attorney.

O'MARA: I see it as along the same spectrum. Look, I did my best as a zealous advocate on George Zimmerman's behalf, I do that for every one of my clients. I've had opportunity now to talk about race in the criminal justice system for three years because of the platform it's given me. And now, I represent the DuBose family as I represent other black victims of police violence over the past several years, two pending now.

And I enjoy it. I consider it an honor that I'm being trusted by the DuBose family to do the best I can on their behalf.

SMERCONISH: Mark O'Mara, thank you as always. We appreciate your expertise.

O'MARA: Thanks, Michael.

SMERCONISH: I will be right back with a prognostication for how Donald Trump finally leaves the political arena.

(COMMERCIAL BREAK)

[09:53:02] SMERCONISH: OK. Full disclosure -- I never thought Donald Trump would formally declare his candidacy, let alone make the required financial disclosure. And I was sure that his asinine comments about John McCain would cause his numbers to tank. But I was wrong on all three, or what Mr. Trump would probably call a loser.

Still, I want to quadruple down. I can't see him competing beyond the Iowa caucus and New Hampshire primary, assuming he makes both ballots. He might even drop out before votes are cast in either state.

Next Thursday's debate might be a watershed if Trump is forced to come up with substantive answers. He might be able to dodge some tough questions because the debate, 90 minutes will be split ten ways. But given he is at the top, all eyes will be on him.

Regardless of the short-term outcome, I think he has peaked. A poll shows him holding firm at 20 percent among Republican voters, impressive in a 17-candidate field.

But where is the growth potential? I don't see it. Particularly where a full 30 percent of Republicans say there is no way they will ever support him. More likely is that he will be the first star to fade in 2016 like Michele Bachmann, Herman Cain and Newt Gingrich. If I'm right, I doubt he has the resolution to hang on when it is pretty clear that the race is unwinnable.

The Donald doesn't do second place, much less fifth, sixth or tenth in anything. What I can't fathom is his exit strategy. There's no way that he tanks at the polls and gets thump at the ballot box, makes a concession speech and goes quietly into the night, not with his ego.

It's got to be something big, something grandiose, like what happened in 1992 when Ross Perot dropped out, got back in and finished third. He later said that he had withdrawn because George Herbert Walker Bush was planning to disrupt his daughter's wedding with a computer altered picture.

[09:55:05] Now, that's a billionaire's playbook for Trump. So, what might he do?

Here's the sort of thing I'm thinking. Since escaped Mexican drug lord "El Chapo" apparently put a price on Mr. Trump's head, he could cite the security wish and his family's wishes that he quit the race. The tweet attributed to El Chapo was being translated as saying, "Keep f-ing around and I'm going to make you swallow your whore words, you f-ing whitey, et cetera, et cetera."

Or maybe he'll withdraw because Melania is expecting baby number two, Mr. Trump's sixth child with his third wife.

I know, it sounds crazy, right? Just like saying that a sitting president is going to disrupt your daughter's wedding.

I'll be right back with some of your tweets.

(COMMERCIAL BREAK)

SMERCONISH: Hey, I always say, you can follow me on Twitter if you can spell Smerconish. Laura just tweeted at me. She said, "You are so wrong about Trump. He will trump everyone else. Your smirking about him bailing is ridiculous. He will win!"

And, Laura, if he does, he will then be 0 for 4 about Mr. Trump.

I'll see you in two weeks. I'm going away on vacation.