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SMERCONISH

Trump The Soundbite Candidate; The Diminishing Power of White Voters; McCaskill: Hillary A Victim of Witch Hunt; The Pope Vs. Trump: Role of Religion. Aired 9-10a ET

Aired August 29, 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] VICTOR BLACKWELL, CNN ANCHOR: All right. That's it for us. See you back here at 10:00 Eastern for "CNN NEWSROOM".

CHRISTI PAUL, CNN ANCHOR: "MERCONISH is next.

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish. We have lots of ground to cover. What's going to happen when two of the world's most powerful people face-off on immigration? I'm talking about the Pope and Donald Trump.

And is Hillary Clinton the victim of a witchhunt? That's the belief of a prominent female democratic senator, Claire McCaskill is here.

Also, people take selfies everywhere, including inside the ballot booth. Should that be legal? Well, meet the man who got called in for questioning by the authorities because of a ballot selfie.

But first, Donald Trump took his road show to Massachusetts last night at a Friday night presser before a fund-raiser. He praised quarterback Tom Brady, he hammered CNN and he continued to respond to questions with soundbytes, not substance. Take a look.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Female voters that are looking to potentially support you, what do you want to say to them because there's been some criticism about --

DONALD TRUMP (RD=), PRESIDENTIAL CANDIDATE: You know, I think the female voters, Ivanka, my daughter, my wife, they feel so strongly about the women's health issues and they said to me, you know, there's nobody that feels more strongly than me, it's true, women's health issues, as you saw Jeb Bush was really, almost against it. It was terrible. Where he didn't want to fund women's health issues. And I will tell you, we will work together and we're going to take care of women. I cherish women. And my daughter and my wife said, you have to talk about that because they know how I feel.

(END VIDEO CLIP)

SMERCONISH: That lack of specificity has thus far served Trump well as he continues to lead in the polls. And it motivated comedian Jimmy Kimmel to create Trump's first campaign commercial.

(BEGIN VIDEO CLIP)

ANNOUNCER: Donald Trump, a man with a vision for America. Not a specific vision, a great vision, the best vision. Donald Trump has a plan for making this country great again. What plan? A great plan, a plan that will work because it is the best. Why? Because Donald Trump knows good people, which people? The best people. People who aren't stupid like other people. People who know how to get deals done. What deals? Great deals. The biggest deals. Deal or no deal. Let's make a deal.

TRUMP: We want deals!

ANNOUNCER: Make America great again. Donald Trump.

TRUMP: I'm Donald Trump and of course I approve this message because it's a great message. And I have lots of money to pay for it.

(END VIDEO CLIP)

SMERCONISH: So how long will this performance last? I want to ask two A listers, Bob Beckel is a democratic political analyst and former Fox News host. And Michelle Bernard is an independent political analyst and Huffington Post contributor.

Bob, this is Chauncy Gardner stuff. I mean, this is there will be growth in the spring -- if you remember the Peter Sellers ' movie. How long does it last? How does it all end?

BOB BECKEL, DEMOCRATIC POLITICAL ANALYST: I think it lasts a lot longer than people think. I've been reading the demise of Donald Trump by political analysts for the last six months and the last I looked he's still around.

This guy sucks more air out of the wound than anybody else. And you can imagine being one of those other 16 Republicans, the only time you get any air time is you got either attack Trump and that's dangerous. Or you have to do something to follow-up on Trump. But here's the point.

Who is Donald Trump? Who he is is not a politician. What does he stand for? What Washington stands against. In other words, he's a guy that has tapped a vein in the American body politic. Very much like Ross Perot had done in the '90s. In fact, go back to George Wallace when he took votes away from Democrats.

So I think that Trump has got some staying power here and he's got the money to stay in and the rest of them can't find oxygen.

SMERCONISH: Michelle Bernard, does he have enough saying power to ultimately capture the GOP nomination?

MICHELE BERNARD, INDEPENDENT POLITICAL ANALYST: I don't think he has enough staying power to ultimately capture the GOP nomination, but he has enough staying power to continue to do a lot of damage, at least some people would say damage, other people would say that what is happening within the Republican Party because of Donald Trump is a good thing. And what we're seeing is Donald Trump quite frankly might be the product of a Republican Party that didn't its electorate. And thought that when they were voted in repeatedly that their constituency wanted Republicans to come into office and basically be in charge of making sure that nothing happened during the presidency of Barack Obama.

And I think what we're seeing is so many Republicans are saying, "we are tired of you promising me this and this and this and absolutely nothing happens. We want a candidate who is not a candidate. We want someone who tells us the truth, who tells us what they think, who doesn't give us the typical political response." And right now that person is Donald Trump. And because of it, I think he's going to be in it for the long road. The other 16 candidates that are running on the Republican side still give us "political answers."

[09:05:14]

SMERCONISH: Bob, he used the word choice this week that harken back to the Nixon era. I want to roll a clip and then get your thoughts on it.

(BEGIN VIDEO CLIP)

TRUMP: So you have a silent majority of this country that feels abused, that feels forgotten, that feels mistreated. And it's a term that hasn't been brought up in years, as you know. People haven't heard that term in many years and it's sort of interesting as to why. There are all different reasons but I think it's a very descriptive term.

(END VIDEO CLIP)

SMERCONISH: Bob Beckel, is that problematic silent majority or is this political correctness run amuck?

BECKEL: Well, he can be as incorrect as he wants. He gets away with it because he is Donald Trump and he's the (INAUDIBLE) of the 21st century. And everybody's planning his circus-ry. And so yes, you harken back that same message was Richard Nixon's comeback in 1968. It was George Wallace in 1972. You go on down the line, Ross Perot, the forgotten people out there, the silent majority. They're not a majority really but there's enough of them to give Trump enough votes.

I think this whole cast of characters of the Republican party, four of them are going to get out of New Hampshire. I don't know which four but four will and it will be weeded down in Florida and then Super Tuesday will probably give us a nominee. But you can't possibly, Jim Gilmore, if you don't who that is -- he's the governor of Virginia -- that guy hasn't been heard from. I mean, I have not heard anything from him. Why?

Because Donald Trump demands the time and he gets it.

SMERCONISH: Michelle Bernard, you as a person of color here, silent majority -- I mean, I'll give him the benefit of the doubt. I think he's speaking to people who have been disengaged from the political process and are mad as hell and don't want to take it any longer, do you hear something different?

BERNARD: I hear something completely different. And on this coupled with all of the (INAUDIBLE) comments he made about President Obama early on in his presidency, I am absolutely unwilling to give him the benefit of the doubt.

If you go back and look at the history of the way Richard Nixon used the term "silent majority," the intent by everyone who has ever analyzed that original speech has said that the intent was to galvanize white people who were angry and who felt like the civil rights movement in the country at the time had run amuck. This is no different than Ronald Reagan using the term state's rights and taking the country back when he announced his presidency in Mississippi, his candidacy in Mississippi in 1980, just a few miles away from where many civil rights workers were murdered in 1964.

It's a way of saying we are going to take our country back from the African-American president, from the Latinos who are taking over the country, from the 11 or 12 million Latinos who he described as rapists, murderers and criminals and sort of engaged those who feel left out because the unemployment rate is still so high because businesses have left the country, because they are not prepared for the 21st century workforce. And it is easier for them, for some people, to I think -- President Obama actually said it back in 2008, he described this section of the electorate as people who cling to guns and religions and are anti-immigrant, anti-free trade, anti people of color.

SMERCONISH: Michelle, I need to quickly go to the other side of the aisle because I have a question for Bob Beckel.

Bob, I want to show you what Martin O'Malley said yesterday at a DNC summer meeting. Roll that tape please.

(BEGIN VIDEO CLIP)

MARTIN O'MALLEY, 2016 PRESIDENTIAL CANDIDATE: Four debates. Four debates, four debates, four debates and four debates only, we are told, not us voters in our earliest states make their decision. This is totally unprecedented in our party's history. This sort of rigged process has never been attempted before.

(END VIDEO CLIP)

SMERCONISH: Bob Beckel, is he right? Is the process rigged to Hillary's benefit?

BECKEL: Well, in a certain way he's right. I mean, I've negotiated these debates before in the Democratic Party. Always the question is, how many? (INAUDIBLE) candidates you have and look at what happened to Republicans in Fox. But I think in the end the Democratic establishment and the Democratic Party are Hillary Clinton voters. And the last thing she wants is to give somebody to have a whole lot of debate time. And she's not a good debater. She can make a lot of mistakes. If you are Hillary Clinton right now, you got to minimize mistakes and maximize your attributes and so I think O'Malley has a point. But also O'Malley's bitter, he's got -- he can't get any traction.

SMERCONISH: It's not just the number of debates, it's also -- I think a number of them are Saturday nights when frankly folks are not going to watch.

Bob Beckel, Michelle Bernard, two A-listers, thank you so much for being here.

BERNARD: Thank you.

BECKEL: Thank you very much.

SMERCONISH: No matter how Donald Trump refers to his supporters, silent majority or some other word choice, polling indicates there are more of them that are supporting other candidates but are there enough for Trump to be elected president?

[09:10:12]

Neil Newhouse knows, he's a Republican pollster. He was Mitt Romney's pollster in 2012 and I understand he has recently crunched some numbers for Jeb's super Pac.

Neil, thank you for being here.

I want to show you, remind you and everyone else what you wrote for the "Washington Post" in 2012 because I want to ask about it if we can put

that up on the screen.

You said, "assuming that the Democrats replicate their 2012 electoral success with minority voters two years from now to win 50.1 percent of the vote, we estimate Republicans will need nearly 64 percent of the white vote, which would be a record for a non-incumbent presidential candidate."

Is it possible for a Republican candidate to get to 64 percent of the white vote in your opinion?

NEIL NEWHOUSE, REPUBLICAN POLLSTER: Hey, Mike, first of all, pleasure to be here. Thank you for inviting me. It's extraordinarily difficult to hit that 64 percent number. Mitt Romney hit 59 which was good enough for George W. Bush to actually win when he was running for re-election. In order to hit a 65 percent, 64 percent number, you really have to polarize the electorate.

That's assuming, Mike -- that's assuming that the Republican does as well as Mitt Romney did among minority voters. Mitt didn't do all that well among minority members, getting just 27 percent of the Hispanic vote. Right now, we're kind of pushing the Hispanic vote away from us with

some of Donald Trump's response.

SMERCONISH: OK. Well, this is what I was going to say. There are two ways to get there. You either get this as a Republican, this unprecedented percentage of white voters, the 64 or 65 percent which you're telling me is unattainable, or you grow the tenth. On that score, I want to put on the screen the result of a Gallup survey that polled on the Republican candidates and found that Donald Trump has a negative 51 percent approval rate. What does that mean, by the way, Neil?

NEWHOUSE: What does a negative 51 percent approval rating mean? That's not good even the most, you know, unseasoned pollster will tell you, "gee, that's not really good news."

SMERCONISH: And that's among Hispanics, I hope I'm making clear. This is a Hispanic number because I get calls to my radio show of people who say to me, "Michael, I think Trump's going to run well with Hispanics because those played by the rules, they're PO'd at those who butted the line." So I was keenly interested to see how is Trump running among Hispanics. He's at negative 51.

NEWHOUSE: Michael, the key number that comes from the 51 percent is just 13 percent of Hispanics in that survey have a favourable impression of Donald Trump and usually you're only getting the votes of those people who have a favorable impression of you. So if he falls as low as the teens with the Hispanic voters, what that means truthfully is we're going to have to increase the number of white voters for him to win a general election --

That just -- the math just doesn't work. It's just extraordinarily difficult --

SMERCONISH: One more illustration if I might of the change that I think Neil Newhouse is walking us through.

Put up on the screen, George Will's column this week, please. Here's what Will noted. "In 1988 George Herbert Walker Bush won 59 percent of the white vote, which translated into 426 electoral votes. Twenty four years later Romney got the same 59 percent of the white vote and now it was worth only 206 electoral votes." Isn't that in a snapshot the problem that's faced demographically by the GOP, Neil?

NEWHOUSE: Yes. And it's obviously a challenge. I mean, there's no getting around it. We got to do better with minority voters and an increasing percent of the electorate right now.

It's not just that -- it is -- Mike, you and I, the last time we were on, we talked about the big blue wall.

SMERCONISH: Right.

NEWHOUSE: The big blue democratic wall which is --

SMERCONISH: Put that up on the screen. Go ahead and explain it. NEWHOUSE: OK. For the last six elections, 18 states have gone

democratic in each of those six elections equalling 242 electoral votes. That means that you only need 28 more electoral votes of the remaining swing states in order for the Democrats to win. The Democrats start with a headstart -- they have an advantage. They have a built in advantage right now and that is based on obviously, past electoral results, but they've got a built-in an advantage here -- they got a head-start in the race. It is like you're running a mile race and the other guy is starting 220 yards ahead of you.

SMERCONISH: Bottom line, demographics are not on the long-term side of the GOP. They got to grow the ten.

Thank you, Neil. Appreciate very much for being here.

NEWHOUSE: Mighty pleasure. Good talking to you.

SMERCONISH: Neil Newhouse.

Coming up, is the most important player in the 2016 election about to touch down in America? Pope Francis is coming to the United States. Is he headed for a collision course with Donald Trump on immigration?

[09:15:00]

And some Democrats aren't exactly happy with how Hillary has handled her e-mail problems. A former chair of the DNC calls her campaign tone deaf. But Senator Claire McCaskill says "it's nothing more than a withc hunt." She's from Missouri. So I'll ask her to show me.

(COMMERCIAL BREAK)

SMERCONISH: Hillary Clinton's e-mail problems are causing consternation amongst some in her own party. The private e-mail server issue has also driven up the number who tell pollsters they find her untrustworthy and worse -- the Friday "New York Times" reported that top Democrats are worried she hasn't done enough to put the issue to bed.

But one prominent Clinton supporter is calling the whole thing a witch hunt. She's Claire McCaskill, the democratic senator from Missouri. She's also the author of a brand new book, "Plenty Ladylike, A Memoir." The book has a fascinating story about an unlikely ally who helped get her elected.

(BEGIN VIDEOTAPE)

SMERCONISH: Your career has been marked by a number of firsts. If I'm not mistaken, you were the first member of the Missouri State Legislature to be pregnant while in office. You were the first female to be elected to be the United States Senate from the great state of Missouri as well. Would you be in the United States Senate today but for Rush Limbaugh?

[09:20:03] SEN. CLAIRE MCCASKILL (D), MISSOURI: You know, he really helped out. You know, the 2006 race, people may remember that Michael J. Fox did a very powerful ad on my behalf over the issue of stem cell research. And Rush Limbaugh made fun of him and mocked his physical movements in the video of his radio show.

And as a result, I had an outpouring of support near the end of the election that could very well have made the difference. Our server actually gave up because we had so many people wanting to help us out after Rush Limbaugh, I think, embarrassed himself by making fun of Michael J. Fox's disease.

SMERCONISH: So fair to say that Rush Limbaugh helped elect Claire McCaskill, a Democrat, to the United States Senate?

MCCASKILL: I'll take it. I'll take it. I thought about sending him roses after that election but decided that was probably a bridge too far.

SMERCONISH: You're for Secretary Clinton in the presidential election, you have said that she's a subject right now, of a witch hunt. Why?

MCCASKILL: Well, just recently, for example, a poll came out that showed Hillary Clinton, her unfavorables are lower than Donald Trump's. She's beating all of the democratic potential challengers handily. She's beating all the leading contenders in the Republican primary handily. And the headlines are, Hillary not doing as well as Joe Biden against potential Republicans.

I mean it's almost as if there's a stubborn notion that she can't be as popular as she is. And it's frustrating to me because all of the incoming is focused on her. And it seems the "Times" is tremendously unfair.

SMERCONISH: But when you go to the internals of those polls, Senator McCaskill, you see that most Americans, a majority of Americans view her as being untrustworthy.

MCCASKILL: As they do everyone in government. This is not -- anybody who has been in elected office and in the public eye as long as someone as Hillary Clinton, this is not a time in America where any politicians have warm and fuzzies. Even Donald Trump, who is clearly the flavor of the month, has very high unfavorables. So I don't -- I think you have to put all that in context.

At the end of the day, we've got to figure out who has the strength and stability to lead this country. And so far, to me, Hillary Clinton is head and shoulders above the field.

SMERCONISH: The Friday "New York Times" had a front page story, a three-person byline they claim they interviewed 75 governors, elected officials, party leaders, it included this quote pertaining to Secretary Clinton. And I read it because it was from Governor Ed Randel, the former head of the DNC. He said they, meaning the Clinton campaign "handled the e-mail issue poorly, maybe atrociously, certainly horribly. The campaign has been incredibly tone-deaf not seeing this as a more serious issue. She should have turned over the e-mail server at the start because they should have known she'd be forced to give it up. But at this point, there's nothing they can do to kill the issue -- they're just left playing defense."

Do you agree with Governor Rendell's assessment?

MCCASKILL: Well, I think all of us can early morning quarterback this, including Hillary Clinton. She said herself, "I made mistakes in how I handled this, I should have had two e-mail accounts." But really, there's only smoke here. It's stubborn smoke but it's just smoke.

The policy was clearly allowed. Obviously, other secretary of states had done the exact same thing. And there is absolutely no factual basis she has done anything illegal. And the idea that they keep pushing this, they just thing that if they keep saying it often enough it will become reality. And facts are stubborn things and ultimately, I believe, the facts will come out.

SMERCONISH: Final question, do you think that Vice President Biden would be seriously considering a run if he didn't think that there were some significant questions that she still needed to answer?

MCCASKILL: I -- here's what I honestly believe. I believe that if Hillary Clinton had originally said "I'm not going to run" and Joe Biden was out there campaigning, they would all be picking apart Joe Biden. All the headlines would be about Joe Biden's gaffe or Joe Biden this. Or Joe Biden and Osama Bin Laden. And then maybe the press would be saying, well, maybe Hillary Clinton is reconsidering and maybe she'll be running now.

I think this is a function of whoever is in the lead is the one that gets all the negative focus on them. And therefore there is a certain kind of reaction that may be somebody else is better. At the end of the day, I obviously support Hillary Clinton, but I also believe that Joe Biden will not run.

SMERCONISH: Senator McCaskill, thank you so much for being here.

MCCASKILL: Thank you, Michael.

(END VIDEOTAPE)

SMERCONISH: Up next, the Pope visits next month and many are wondering how the newly Bible-thumping candidate Donald Trump will react.

(COMMERCIAL BREAK)

[09:29:00]

SMERCONISH: Welcome back. Will Donald Trump meet his match when the Pope arrives here in a few weeks? That's what Timothy Eagan suggest in "The New York Times." Check this out. He wrote "In a few weeks Pope Francis will visit our fair land, a fitting pivot from the summer of Trump, closing out a glutinous episode of narcissism, rudeness, frivolity and xenophobia. For all the orang-utan-haired vulgarian has done to elevate the worst human traits a public figure can have, Francis is the anti-Trump."

Last week I showed you Donald Trump telling an Iowa crowd that his favorite book was the bible, but this clip shows liturgical knowledge doesn't seem to run very deep.

(BEGIN VIDEO CLIP)

TRUMP: The Bible means a lot to me but I don't want to get into specifics.

UNIDENTIFED MALE: Even to cite a verse like --

TRUMP: No, I don't want to do that.

UNIDENTIFED MALE: An old testament guy or new testament guy?

TRUMP: Probably equal. I think it is just an incredible -- the whole bible is incredible. I joke very much so, they always hold up the "Art of the Deal" I also say that my second favourite book of all time.

[09:30:00] But I just think the Bible is just something very special.

(END VIDEO CLIP)

SMERCONISH: To discuss this and other aspects of the papal, which will include the first time the Pope has ever addressed Congress, I've invited a journalist with keen insight. Robert Draper wrote the terrific story in the September "National Geographic" magazine titled, "Will the Pope Change the Vatican, Or Will the Vatican Change the Pope?" The Andy wrote the essays in the new picture book "Pope Francis and the New Vatican" and he joins me now from Houston.

Robert, you wrote that the Pope is an acute social observer. Surely, he knows he's arriving in the thick of a presidential campaign where immigration is dominating the debate thus far. How do you think he'll react?

ROBERT DRAPER, AUTHOR, "POPE FRANCIS AND THE NEW VATICAN": Well, yes, Michael, when the Vatican scheduled his trip for Pope Francis several months ago, I don't think Donald Trump was on the radar, but he is on Pope Francis' radar and effectively, he's going to be the audience of the speech that Pope Francis gives as you mentioned to the joint Congress on September 24th. Because for Pope Francis, inequality, both racial as well as economic has been a prominent issue. I mean, one of the first things he did when he became Pope was to visit the island of Lampedusa, which is just off of the coast of Sardinia, and where a lot of Libyan refugees had arrived by boat.

So, the message he wanted to send from the very outset was one of outreach, was one of tolerance. And so, the rhetoric of Donald Trump that's contrary to that I think is something he's going to directly address in the speech. SMERCONISH: Do you expect that as you put it, the rhetoric of Donald

Trump is on his radar screen? I mean, is the Pope politically savvy?

DRAPER: Yes, he is. I mean, he is not savvy in the sense that he follows the horse race, per se, but he reads newspapers, he reads like three or four every morning. He himself is not a social media person. I hope this doesn't disappoint his millions of followers, but he isn't the one doing the tweeting on @Pontifex Twitter handle. But he does really follow assiduously politics. He understands the dynamics at play. He certainly understands he's arriving at sort of the on-ramp of the presidential contest. And I think that his comments to the Congress are going to reflect that.

SMERCONISH: You wrote this, if I could put it up on the screen, I circled this in "National Geographic". "He is, the media would have it, a reformer, a radical, a revolutionary. And he is also none of these things."

What does that mean, Robert?

DRAPER: Well, it means on the one hand, I'm not convinced he's going to change doctrine. You know, I don't know that he is going to, for example, toss out the notion that a priest must be celibate. I don't know that he's going to allow women -- you know, the ordination of women into the priesthood.

What he has done, though, that's very radically is to change the tonality of the Catholic Church, which were so long been focused on sin, has put sin at the center of the discussion rather than men suffering and the need for love. And I think in doing that, and encouraging all Catholics to reach out to the periphery, not simply to be this insular church that has a list of do's and don'ts, but to go out to the people who are alienated is frankly a radical concept, if however one that has been preached since Jesus Christ.

SMERCONISH: Here's an indication from my hometown. I hope you can see that in Philadelphia of just how big the papal visit is in Philadelphia and, of course, Washington, D.C. and New York City. My question is, as you look at his public events over six days, and I'll put part of the calendar up on the screen. What are you circling for political significance?

Is it the meeting with the president? Is it the speech to the joint session of Congress? Is it the open air mass in Philly?

For political purposes, where should we be paying attention?

DRAPER: I think at 9:20 eastern time in the morning on September the 24th he should be paying very close attention to the speech he gives to Congress. By the way, we should note that, though, the former Jorge Mario Bergoglio is a Latin American, that he was born and raised in Buenos Aires, and, in fact, this is his first trip to the United States.

SMERCONISH: Wow.

DRAPER: He's never been here before.

But when he makes these speeches, he makes the most of them. He did when he was the archbishop of Buenos Aires and railed at against government corruption when President Kirchner was sitting in the audience. He's going to do the same thing at this speech. I think it's very likely he'll talk about income inequality. He's probably going to talk about climate change as well, since that's a subject that's been near and dear to him since he witnessed the destruction of the Amazon rainforest when he was archbishop.

But I think, now, as well, he's certainly going to be talking about immigration and the need for tolerance and the need to basically cast aside a sort of painful rhetoric here in the South.

SMERCONISH: He could -- that's why I say, Robert, I think that he will set the tone for the fall portion of this campaign.

A final question, if I might for you, you report in "National Geographic" that within two years of his papacy, he's already appointed 39 cardinals.

[09:35:01] And when I read that, I said it sounds like a role akin to a president and the Supreme Court of the United States. In other words, is his imprint going to be left on the Vatican for a long after he's no longer the Pope?

DRAPER: That's clearly his intention, Michael. I mean, it's -- he's already said that his papacy is not likely to be a long one. That he wants to follow the precedent set by Pope Benedict and retire within a few years or so.

But it's clear that he doesn't want the progress that the Catholic Church has made under his papacy to be rolled back. And so, he's essentially stuck to that by appointing cardinals who are much more -- I mean, frankly, are not old school, not as insidery as those cardinals we've seen that have people in the Vatican in the past. So, no, I think that whoever his successor will be will be picked in a conclave by these cardinals who clearly, you know, have a -- who clearly embrace the point of view that he does, that the Catholic Church has got to be more open.

SMERCONISH: "The National Geographic" piece is terrific.

Congratulations, Robert Draper, and thanks for being here.

DRAPER: My pleasure, Michael.

SMERCONISH: Coming up, what is wrong with taking a picture of how you voted and then posting it on the Internet? Well, for starters, it might not be legal and it could cost you.

(COMMERCIAL BREAK)

[09:40:20] SMERCONISH: Nowadays, everybody is taking selfies and posting selfies on social media. But in some situations, it's actually illegal. One place in particular is the voting booth. Why? Because your selection is supposed to be private.

Now, a federal judge sitting in New Hampshire had invalidated a law that made it illegal to take a ballot selfie.

Andy Langlois is one of the plaintiffs who posted a selfie, fought the battle and won and he joins me now from his new state of residence, North Carolina.

Andy, did you move because of the selfie skirmish?

ANDREW LANGLOIS, TOOK PHOTO OF HIS BALLOT: No, I didn't. I moved for much better weather.

SMERCONISH: OK. That makes sense.

So what happened? Tell your story.

LANGLOIS: Well, I was in the voting booth, we had the local primary, or actually state primary, and I just wasn't happy with the offferings on the Republican side, just everybody was unsatisfactory. Not representing either the local citizenry or the citizenry of New Hampshire. So I just wrote in Akira, my then-deceased dog by about a month, and just took a picture of it of the ballot and then I posted it later on that evening.

And with -- I really don't know what the quote was, but I'm sure it was that I didn't enjoy the offerings. And then a few days later, I got a phone call from the local investigators wanting to know more.

SMERCONISH: Right. I think you said, everybody sucks, so therefore I'm voting for my deceased dog.

LANGLOIS: Yes.

SMERCONISH: When the general authorities contacted you, did you think somebody was goofing on you or did you know it was for real?

LANGLOIS: Absolutely. I thought somebody was playing a joke on me.

SMERCONISH: Why do you think you should have the right to take a selfie inside a ballot booth? Because some say it is a threat to ballot secrecy and ballot integrity?

LANGLOIS: It's a true First Amendment right issue. Am I allowed to express, in my case, a protest vote and I did. And I think that -- I think the way the case went, it certainly upholds that. And if you decide to have a secret ballot, like we normally have, you can obviously keep to that as well.

SMERCONISH: What if -- final question, what if an employer, though, says or a parent to a child says, hey, I want proof that you voted for candidate X, Y or Z, so send me your selfie?

LANGLOIS: That's just a moral question that they would have to answer and justify to themselves.

SMERCONISH: OK, Andy. Thank you so much for being here. Good luck.

LANGLOIS: Thank you, sir.

SMERCONISH: I want to bring in a legal expert. In an opinion piece for "Reuters" titled "Why the selfie is bad for democracy," the University of California at Irvine law professor Richard Hasen writes, quote, "Without the ballot-selfie ban, we could see the re-emergence of the buying and selling of votes."

Professor Hasen joins me now from Los Angeles.

We should point out, Professor, this is not just New Hampshire. This is a debate playing itself out in Maine, Oregon, Utah, where they permit this type of a picture to be taken. I think that Indiana has recently passed a new law saying we don't want this to be taking place.

RICHARD HASEN, PROFESSOR, UNIV. OF CALIFORNIA, IRVINE SCHOOL OF LAW: That's right. And there are actually a number of states where the law is simply that you can't share who you vote with with anyone else. No one else can see your ballot. And so, that would work the same way than if you took the selfie, you'd be violating that law.

SMERCONISH: So, give me the background for your opinion. What's the basis for it? I hear from many individuals who say the pure embodiment of our First Amendment is when you vote. My God, why not be able to record the process if you choose to?

HASEN: Oh, absolutely. And people should be able to cast a protest vote. They should be able to tell everyone about it.

The problem is that you can prove how you voted with a picture of your ballot, it opens up the possibility of the buying and selling of votes. It also opens up the possibility of coercion from your employer, from your spouse, from your union boss. And we don't want that. And we know that as states in the country and in the early 20th century adopted the secret ballots, turnout went down because you could no longer engage in that kind of transaction. You couldn't prove how you voted and people were much less likely to pay you to vote one way or the other.

SMERCONISH: In other words, people, a quick history lesson, we used to have a very public ballot until we adopted what's referred to as the Australian ballot. And you're saying when we went secret, fewer people proportionately than participated in elections.

HASEN: That's right. So, people used to actually go on a kind of parade, parties would print ballots and they'd be different colors, and so everybody would know how you voted.

[09:45:02] And there was a lot more coercion there. You know, you were kind of pressured to vote in a certain way. And that's illegal. Vote buying is illegal.

So, I think, you know, that people should be able to express themselves and be able to vote how they want, but we shouldn't let them take the actual picture of the ballot which can allow for the buying and selling of votes. We have seen it with absentee ballots in certain parts of the country where people are buying and selling them for $20. That's a real problem and this would open up another venue for buying and selling votes.

SMERCONISH: Professor Hasen, I read the federal court of appeals in this case and it discussed the fact that there was a rumor college students were being paid, I think it was 50 bucks to cast their ballot. But it couldn't be substantiated. There was no evidence it was anything more than a rumor.

But the federal judge in this case seemed open to the idea of upholding a law like this if there were proof of coercion.

HASEN: Right. So, it's a First Amendment issue and you've got a ball los of the interests. One of the points I make in the "Reuters" you mentioned, you don't lose the First Amendment impression. Your last guest could have gone to Facebook and said this is how I voted and why and these candidates suck, say all that, that's all good. It's all fine. It's just -- we don't want the picture.

As we develop more cases, and I'm guessing this one is going to be appealed by New Hampshire, we'll get some more evidence. But I would like to what has happened with vote buying and absentee ballots in certain parts of the country and use that as evidence of what the problem is here as well.

SMERCONISH: But just final question and to play devil's advocate, vote buying and intimidation can still be against the law. We can still prosecute those crimes. Really the picture doesn't make much of a difference.

HASEN: Well, I'm not worried about people posting the stuff on Facebook. I'm worried about people snapping the picture and using it to engage in vote buying or being coerced and not sharing it with anyone else.

Certainly, prosecutors shouldn't go after people just expressing their First Amendment rights. That's not where the real problem is at all.

SMERCONISH: Professor Hasen, thank you so much for being here.

HASEN: Oh, it's my pleasure.

SMERCONISH: Coming up, my tip of the hat to Donald Trump.

(COMMERCIAL BREAK)

[09:51:35] SMERCONISH: I have a bone to pick with Donald Trump, his hat. That red baseball cap he uses to cover his famous mane, the one that reads "Make America Great Again".

I don't like the message. It is a theme that he repeats in his speeches.

(BEGIN VIDEO CLIP) TRUMP: I will say this. If the right person is not elected come next year, I don't know if it can be brought back again no matter how competent or capable the person is. It's going to be too far down the line.

(END VIDEO CLIP)

SMERCONISH: Mr. Trump doesn't say make America better. He says "make America great again", meaning America is not great.

Some have been primed by the bipolarized media to receive a dog whistle like this that appeals to misplaced anger. Unsettled by the pace of change, they want their country back. Trump remains a hero to these folks because he championed the birther movement. His current emphasis on illegal immigration resonates because it's a sure hand way of describing an America threatened by others, including that guy in the White House. They have been schooled to believe that change is tantamount to a breakdown in order.

And yet, even the pro-business "Wall Street Journal" noted in a recent editorial about birthright citizenship, "The immigration hawks are correct that birthright citizenship is unusual among nations, but since when did Republicans dump their belief in American exceptionalism?" The idea that America is special?

Look, we have problems that need fixing. When a 32-year-old woman is slain in broad daylight in San Francisco by a guy who broke into the country five times, you can safely say that border control is one of them. But by any fair collection of indexes, health, education, the economy, quality of life, opportunity, what we have remains unparalleled. These aren't utopian times, nor are they the dystopian dysfunctional society that Trump is describing.

In a world with so much instability, one fact remains -- America is great.

Y'all had a lot to say this week. I will be right back with some of your tweets.

(COMMERCIAL BREAK)

[09:58:36] SMERCONISH: You know, I like to say at the end of every program, you can follow me on Twitter if you can spell Smerconish. Many of you are. Most of the tweets pertaining to Mr. Trump this week.

Let's see, Chinchilla says, "I've got news for you. Trump is a Presbyterian. He doesn't have to listen to some unelected Pope about immigration."

Chinchilla, respectfully, I still think that the Pope is going to set the tone for all of the candidates.

There was this from MLP. He says, "You're such an AH, criticizing Trump on his nice commentary on Bible versus scum like you. It's why the press is despised." Maybe that came from @RealDonaldTrump. And there was this, Don says, "The silent majority debate is a sham. The silent majority Trump refers to is the middle class and you know it."

I gave him the benefit of the doubt on that. But if he you know, but for him being a birther, I think your argument would have more credibility.

Oh, there was also this from Rebecca, pertaining to my commentary about Mr. Trump's hat and slogan "Make America Great Again". Rebecca said, "Thank you, that slogan has irritated me from the beginning. We need to continue to improve but America is great."

Rebecca, that was my whole point and that's not what the hat says. So, I think it's more than a semantic difference.

Follow me in Twitter if you can spell Smerconish, and I will see you here next weekend. Thanks.