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SMERCONISH

Trump's Political Question Stumble; Religious Liberty in Grave Danger; Dave Ramsey on the Economy; Clinton's Email Scandal and the Law; Dershowitz on Iran Nuke Deal. Aired 6-7p ET

Aired September 5, 2015 - 18:00   ET

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


[18:00:03] VICTOR BLACKWELL, CNN ANCHOR: Thank you for watching this morning.

CHRISTI PAUL, CNN ANCHOR: "SMERCONNISH" starts right now.

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish.

You know, labor day traditional begins the political season but ors is well under way and we'll get into it with some great guests.

Is this woman in jail because she's being her denied her religious freedom, or is she more like an American version of the Taliban?

And Hillary Clinton finally speaks out about her e-mail scandal but refuses to fully apologize. I will speak with a former U.S. Attorney General who says she's got plenty to be sorry about.

Plus the jobs report game out, the numbers look good but Donald Trump says the economy is terrible. That 93 million Americans are still out of work, advice from financial expert and radio host Dave Ramsey.

And is Obama's Iran deal bad for America? Famed legal mind Alan Gershowitz thinks so and he's here to tell us why.

We start with new reports that conservative groups including the prominent anti-tax group called "Club for Growth" are exploring options to try to diffuse the campaign of Donald Trump for "not being an economic conservative" and being the worst kind of politician. Is this the beginning of a conservative backlash against the Donald?

Speaking of trump, here is something I wonder. Is he getting an unpaid political commercial every time Americans see this sad footage of the European migration crisis? Do Americans see that and ask themselves could it happen here?

Joining me now, Beckel, Bernard, and Stone. Sounds like a high- powered law firm or an interesting car pool. Bob Beckel is a democratic political analyst and former Fox News anchor. Michelle Bernard, an independent political analyst and Roger Stone is a Trump advisor of some 30 years who has since left the campaign.

Roger, I'm looking at today's "New York Times" so it must be true. It says The club for Growth and other conservative groups are all now plotting and scheming how are they going to take down the Donald.

ROGER STONE, FMR. TRUMP ADVISOR: Yes, there's no question that the political establishment is soiling their bridges over the rise of Trump. This is just another manifestation of the political establishment apoplectic about the independence of Trump and the fact that he is not beholdened to lobbyists, special interests and all the special pleaders in Washington.

A new poll today has Donald Trump leading Hillary Clinton. No wonder the political establishing is in a panic.

SMERCONISH: Bob Beckel, the Donald continues to dominate all the headlines, including the headline generated by an interview he did with Hugh Hewitt. I want to play the tape and ask you whether this was gotcha?

(BEGIN VIDEO CLIP)

HUGH HEWITT, RADIO HOST: Are you particular with General Soleimani?

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Yes, go ahead and give me a little, tell me.

HEWITT: He runs the Quds forces.

TRUMP: Yes, OK. Right.

HEWITT: Do you think the --

TRUMP: By the way, the Kurds have been horribly mistreated by us.

HEWITT: No, not the Kurds, the Quds Forces, the Iranian Revolutionary Guards Quds Forces.

TRUMP: Right.

HEWITT: The bad guys.

TRUMP: Right.

HEWITT: Do you expect his behaviour to change as a result --

TRUMP: Oh, I thought you said Kurds, Kurds.

HEWITT: No, Quds.

TRUMP: Oh, I'm sorry, I thought you said Kurds.

(END VIDEO CLIP)

SMERCONISH: Mr. Beckel, what do you hear in that tape?

BOB BECKEL, DEMOCRATIC POLITICAL ANALYST: Well, what I hear is Donald Trump is now instead of having an issue that he can throw back to somebody, let's face it, he is a lot of things and I think he is stronger than people give him credit for. As I said on this show last week, he defies political gravity, he continue to do it. Every political analyst I've seen has said that this guy is going to be gone have been wrong.

But I think it has now reached the point where he said about 35 percent of the Republican electorate and for him to expand out he's going to have get more serious on policy, not attacking everybody. He gave Hugh Hewitt a little bit of a back end to slap, but that was about it.

But I think Donald Trump for the first time, and Roger may know a lot more about this that I do, but I think the guy actually thinks he might win now, and if he does he's going to give himself a campaign that reflects a presidential candidate.

SMERCONISH: But Michelle Bernard, he can't win out knowing the difference between Hamas and Hezbollah.

MICHELLE BERNARD, INDEPENDENT POLITICAL ANALYST: Exactly and not only does he have to know the difference but he can't just write it off with the typical Trump response that we heard in the interview with Hewitt earlier this week where he said where he basically said it doesn't really matter. By the time I'm elected, you know, in 16 or 17 months by now, all the players would have changed and I will know what I need to know by then.

[18:05:00]

You need to know now because you can't -- it's foreign policy 101. I think the question was fair. It wasn't a quote-unquote gotcha question. I think quite frankly that Donald Trump's response, not so much on the Quds versus the Kurds, I will give him the benefit of the doubt, because it was a telephone interview and maybe he actually thought that he said Kurds rather than Quds but his responses in terms of not knowing the answer, pretending that it's not really important at least not at this point in time, and then deflecting by talking about how he's going to build a great wall and he's going to be the best military person -- I'm going to be so good that your head will spin. That is a problem for somebody who is running in the Republican Party that where foreign policy issues are absolutely so important to so many voters.

SMERCONISH: You allegedly wrote the internal campaign memo that was leaked to the media, talked about Trump following the Reagan style of speaking thematically and not in specificity. Has that strategy now exhausted itself? Has he reached a point that he must speak more specifically?

STONE: Not at all. In fact, look Hillary Clinton knows the names of all the leaders in the Middle East, that didn't stop her from losing control of most of the country's in the region to our Islamic terrorist enemies. It didn't stop her from botching up Benghazi. Donald Trump understands the big issues in the Middle East and in foreign policy. We're not looking for the walking chief -- we don't need to get down in the weeds. This is not about Arcania. It's about the big picture and Donald Trump grasps the big picture. SMERCONISH: Bob Beckel, I voiced my own theory at the outset of the program that this migrant crisis is going to play a role in the 2016 cycle, do you agree with me that when people see that footage it's a reinforcement of some of the concerns that the Donald has put in their heads about what could happen her or to some what is happening here?

BECKEL: Listen, he adjusted to that one quite well. I think he said we should take some of those refugees over here. The things he's done this week -- look he has decided that the votes that Carson has, for example, who has come up in the polls. Dr. Carson, are votes that Trump would get if Carson were not around. So he's going after Carson a little bit. He has laid off a little bit on Jeb Bush.

The only way you're going to get any publicity in this 17-person field, is to attack Donald Trump which is dangerous, or agree with him which is even more dangerous. I think that Donald Trump is going to have to, at some point, when you get to the Iowa caucuses he's going to have to start talking about specificity and right now, he is not ready yet to do it although he's hiring some people to help him.

SMERCONISH: Michelle, Bob makes an interesting point about the interplay between Carson and Trump. And I have to say this CNN debate coming up on the 16th is going to be big. That is what I'm most interested in, what is the dynamic between the two "front runners." Do you think Donald Trump goes after Ben Carson?

BERNANRD: I don't think he's going to go after him unless Ben Carson goes after Donald Trump. Carson is doing well in the polls right now. It's actually quite, frankly speaking, really amazing to see this happen. Because after the Fox debate, Carson spoke what, maybe two times, three times. His biggest line of the night was when they finally asked him a question and he sort of brought the audience to applause and laughter by saying that he didn't think they were going to call on him again.

So the CNN debate is going to be a very, very big deal for Carson. Not so much, at least from my perspective to see if Donald Trump is going to go after him, but really to see what he is going to say in response to all the questions he has asked. He has made so many gaffes throughout the campaign and made statements, that quite frankly, a lot of people will find horrifying and now he'll be on the national stage, and I think Donald Trump doesn't have to go after him because Ben Carson is going to either be his best friend or his worst enemy.

SMERCONISH: Roger, what do you say, is he going after Ben Carson?

STONE: I don't think he's goes after Ben Carson unless Ben Carson goes after him. This has been Trump's kind of (INAUDIBLE) from the beginning. He only attacks those who attack him, but he attacks back at twice the force. It's an important principle of Trumpism.

SMERCONISH: Did the man who wrote "The Art of the Deal" lose the bargain with the RNC this week? What did he get out of that pledge?

STONE: On the contrary, I think he gave away nothing and got everything.

SMERCONISH: What did he get?

STONE: He now has a written commitment from every one of his opponents to support him if he is the nominee, something Barry Goldwater could never get when Rockefeller and Romney and Scranton and all the parties archetypes bailed out on him. Trump was probably never going to run as a third party candidate. He preserved the option to make sure he's treated fairly and not boycotted in the debates and so on. So he gave away gets the nomination. So he gave away nothing and he got everything in his classic art of the deal.

SMERCONISH: Let me go to the other side of the aisle and show footage of Vice President Biden speaking very emotionally this week.

(BEGIN VIDEO CLIP)

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: The factor is can I do it? Can my family under take what is an arduous commitment that I would be proud to undertake under ordinary circumstances. But the honest to god answer is I just don't know.

(END VIDEO CLIP)

SMERCONISH: Bob Beckel, you wrote this week that the man ought to retire while on top. Why?

[18:10:00]

BECKEL: Well for two reasons, he ran for president twice and he was embarrassed twice. He has a plagiarism issue in one time and the other, he ended up less than one percent of the vote. Look, this guy has been a public servant all of his life, and he has been a very good one. The idea of going back in and doing this again and getting beat again and he will get beat.

I mean I don't care how good Joe is, I did his first Senate race but the fact is when his family talks about it, he looks in the mirror, he's going to say this is not the way I want to go out. One other thing about Trump, Trump also has a deal with the RNC. If he decides he wants to run as a third party candidate for some reason, he can. Who is going to stop him?

SMERCONISH: Final one word answer from each of you. Bob Beckel, does Vice President Biden get into this thing?

BECKEL: No.

SMERCONISH: Michelle Bernard.

BERNARD: Maybe.

SMERCONISH: Roger?

STONE: No. SMERCONISH: Interesting interplay gang in terms of what's going on in Kentucky. I think it evidences the divide in the GOP in terms of what the candidates are saying about this county clerk, Roger. You know, what I speak, how they feel pulled for the primary audience to be supportive of her, but that is potentially a losing strategy for a general election.

STONE: Yes, I totally are an there's middle ground here, of course, if he has moral objections, religious objections to her responsibilities, she could resign. I think jailing her is pretty ridiculous.

Beckel, Bernard and Stone, thank you.

Talking about County Clerk Kim Davis, who has become a symbol, an icon of resistance to the Supreme Court's ruling on gay marriage by not issuing marriage licenses to sex couples. My next guest says religious liberty in America is in grave danger. Tony Perkins is the head of the Family Research Council and he's headed to Kentucky on Tuesday along with GOP presidential candidate Mike Huckabee for a Free Kim Davis rally outside the jail.

Tony, thank you for being here. You have written -- "this is wrong, we jailed criminals, not people of conscience." Explain.

TONY PERKINS, FAMILY RESEARCH COUNCIL: Well, Michael, look we have a long history in this country of accommodating people based upon their religious convictions. I mean, look at the military, we have military conscientious objectors, we don't say they can't serve, we don't force them to be in a position where they would have to take a life.

We accommodate prisoners, we accommodate students, even under this administration they have changed the citizenship status, where they don't have to pledge to take up arms this country, based upon religious convictions but upon moral or unethical code.

So this is unfortunate. It's a dilemma created by the court in the redefinition of marriage, and it is also a travesty because the governor, Governor Bresher (ph) could have easily resolved this issue by calling the legislature into session and making accommodations for clerk who do not want to be a part of same-sex marriage, simply allowing the name of a deputy clerk to be on the certificate rather than the clerk.

SMERCONISH: Tony, it's interesting to me that you make a military argument. Because Professor Jonathan Adler in the "Washington Post" did likewise when arguing on the other side. Put that up on the screen.

He said, "Think of it this way. Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military even were there to be a draft. But he does not have the right to serve as a military officer, draw paycheck from the military and then substitute his own personal views of when war is justified or that of the government and the same applies here," doesn't Professor Adler make a winning argument? PERKINS: No, because there are many conscientious objectors who serve

in the military, who served honorably in the military but are not forced in a position to take up arms. They serve as medics, they serve as administrative support, they serve in many capacities.

What this is, if this is allowed to stand wand in administrative capacities. What the courts have done here is to establish a reverse religious test. For those who have orthodox religious view about marriage, they would be prohibited, they would be barred from serving in a position of public trust. Look, Michael, for many people, in America, I understand religion is kind of like a dial on their car stereos. They don't like what they're hearing they turn it or they push scan but for others, for millions of Americans, their faith is like a GPS that guides every turn they take and historically, we have accommodated them --

SMERCONISH: But respectfully, it reminds me of that which we are fighting overseas. Here is another hypothetical, imagine that it is not the marriage bureau, it's the DMV and that there is a Muslim clerk who takes the position that the Islamic faith doesn't recognize the right of women to drive and this person says well, I'm not going to give driver's license to female drivers a la Saudi Arabia. We would go crazy about that. We'd say absolutely not. You're imposing your religion on society.

PERKINS: Well, first, the standard accommodation is if it does not do harm in society. If in fact, it offends, that is not something we take into consideration. If they would be barred from getting a license, that's a problem. But if it's simply saying going to the next clerk. That's what we're talking about here.

[18:15:00]

You want to use a foreign analogy. A little over a year ago, I was working to advocate the release of a young woman who was imprisoned by her third world government for her Christian faith in Sudan. Little did I know that a little over year later I would be advocating for a woman in the United States of America, jailed by her own government for her orthodox Christian view.

SMERCONISH: Let me tell you, I don't think she should be behind bars. I think that's an overreach but this is not some liberal jurist. Judge Vonning (ph) is a W appointee. He's a devout Catholic. He's the son of former Republican Senator Jim Vonning (ph). You get the final word on this.

PERKINS: Well, look, Governor Bashir (ph) could solve this issue just like they did in North Carolina, make accommodations which we have historically done in this country for people with orthodox religious views. It didn't have to come to this but the governor there has refused to accommodate her beliefs and that's wrong.

SMERCONISH: OK. I would respectfully argue I think she is now ill suited for that job, but thank you, Tony Perkins, I appreciate you being here.

I want to know what people think, you can tweet me at me @smerconish. And maybe I'll quote you at the end of the program.

Coming up the stock market has been up and down, a bumpy ride for investors, could we be heading for another dreaded correction. Financial expert and syndicated radio star Dave Ramsey is here with the scoop, and he's next.

(COMMERCIAL BREAK)

[18:20:11]

SMERCONISH: The Dow finished this week with a triple digit loss. And this recent volatility is causing jitters amongst investors. I got the perfect person to sort it all out.

Joining me now from Nashville is fellow radio host Dave Ramsey. He's heard by more than 8.5 million people on a weekly basis. They tune in to hear him on more than 550 radio stations in the United States and Canada as well as I Heart Radio. He's a financial expert and author of five "New York Times" bestsellers, including "The Total Money Makeover." Dave, it's great to have you here. People are jittery, as you know, and they worry, is this 2008 being played over again?

DAVE RAMSEY, RADIO HOST: Well, I mean, I have no idea, but I don't think so. I personally invested in 2008 all the way down and all the way out. And so if it is, I'd be personally investing all the way down and all the way out. The world didn't come to an end in 2008. We kind of thought it was going to for a minute, but it didn't. And I don't think it is anywhere near that kind of the thing. We don't have anywhere near the storm clouds that we had at that time.

SMERCONISH: People are panicking, and I know that you're a long hold mutual fund kind of guy, am I accurate in saying that Dave Ramsey would not advise people to be selling today?

RAMSEY: It's exactly the wrong time to sell, if you're going to let your emotions manage your investments, you're going to be broke your whole life. I mean you really are. The only time you get on the roller coaster is when you jump off. So ride the ride, enjoy the ride, it's part of the ride. You need to know that about the markets. They come and they go and that's some of the beauty of them.

You're not losing all of your money, don't go into drama queen mode, just smile, you lost a little bit of money if you cashed out today. But you know what if mine went down or mine went up, I didn't lose any money because I didn't cash out.

SMERCONISH: Of course, this is all playing itself out now against the backdrop of the 2016 presidential election. Donald Trump said something the other day that caught my ears. I've heard it said by others. I want to play it for Dave Ramsey and then ask a question.

(BEGIN VIDEO CLIP)

TRUMP: Well, if you really look, Sarah, at the economy it's been terrible. We have 93 million people out of work. They look for jobs, they give up, and all of a sudden statistically they're considered employed. Our economy is doing terribly. We've lost tremendous amounts of jobs to China, to Japan, to Mexico, and to so many other places. It's really very sad when you look at what is happening. We have taken away -- they've just destroyed our job base and we have to make a lot of improvements.

(END VIDEO CLIP)

SMERCONISH: Dave Ramsey, the new jobs numbers came out on Friday and they caused unemployment to dip to 5.1 percent, and yet I recognize from statements made by Donald Trump and from others that we have an unprecedented low level of job participation. It's hard for a layperson to make sense of it all in terms of what is the job market like?

RAMSEY: Well, if real unemployment was 5.1 percent, most economists call that full employment, meaning everybody that wants to work can. But what they've done is they changed the statistical measures to where we got people that actually do want to work that aren't being measured there, that aren't working. And so it's a little bit of a misnomer when you change the calculation in order to get the numbers to go down.

In that sense the Donald is on track there. There is a lot of people out there that are unemployed, that "are not being counted as unemployed." And it is a little bit off. I think the stock market reflects that when we saw that dip on Friday, following these numbers.

So we kind of at best we could say we got a lackluster economy. I don't think it is quite as dramatic as he has stated, but it's not as good as people on the other side is saying either.

SMERCONISH: Do you believe that there has been enough intelligent conversations about the economy?

RAMSEY: No, it's all soundbites at this stage of the game. And they're all just running throwing lone sharks at each other, trying to see (INAUDIBLE) knock the other one out.

It's almost sadly humorous watching from the outside, but it eventually will get down to (INAUDIBLE) the thing I always our listeners that most of your success, if you're watching Michael and I right now, it doesn't have anything to do with Washington, it has got to do with you. Don't be looking to one of these candidates to fix your life, that's going to mean your life sucks.

SMERCONISH: In other words, you think they get too much credit and they get too much blame?

RAMSEY: Absolutely. Absolutely. I prospered under every version of conservative or liberal or democrat or republican, or right wing, left wing, I mean, all these stuff is going on. I'm an old guy, I have been doing this a long time and my radio show has gotten bigger every year. We sold more books every year. I prospered. But you just have to get up and leave the cave, kill something, and drag it home.

[18:25:10] That's what causes people's success. The disturbing thing about this preoccupation with the circus is people like sitting around waiting on one of these guys to fix their life.

SMERCONISH: I know that a recent guest of yours was Dr. Ben Cardon, you had an interesting exchange. I'd like to show it to the audience.

(BEGIN VIDEO CLIP)

DR. BEN CARSON (R), PRESIDENTIDAL CANDIDATE: My plan, I made no bones about it is based on the Bible and the concept of tithing. Because I think god is a pretty fair god. He thought it was fair that if you make $10 billion a year, you pay a billion. You make $10 a year, you pay 1. You have the same rights and privileges. Now there are a lot of people who said, not fair, because the guy that put in a billion he still got $9 billion left. That's not fair we need to take more of his money. Well, of course, that is called socialism. And those systems never work over the long run.

(END VIDEO CLIP)

SMERCONISH: You questioned Dr. Carson in that exchange. I know that you have been inviting other presidential aspirants in, here comes the next CNN debate, what does Dave Ramsey think is the financial question they should each be asked?

RAMSEY: Do they have the political will to cut spending, really. Not just yak about it, and not cut increases in spending, but actually cut programs. I run a business and occasionally you have to prune a rose bush in order to have beautiful blossoms turn into beautiful roses on the other side. That means cutting out things that no longer work and recognizing them. Anyone that has good walking around sense, knows there is a large amount of that could be done on the federal level and it's way over due.

SMERCONISH: Hey, Dave, it's great to have you on the program. I wish you all good things.

RAMSEY: Thank you, sir. Good to be with you. Honored to be with you.

SMERCONISH: Thank you. Dave Ramsey.

Still to come, Hillary Clinton finally directly addressed the issue of her using private e-mail while secretary of state, but her answers didn't satisfy former Attorney General Mike Mukasey who will join me when we come back.

(COMMERCIAL BREAK)

[18:31:21] SMERCONISH: Despite all of the domestic and foreign issues facing whoever is the next president, Hillary Clinton can't seem to get past the controversy over her use of private e-mail when she was secretary of state.

Here is part of the explanation that she offered NBC's Andrea Mitchell yesterday. (BEGIN VIDEO CLIP)

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: You know, I was not thinking a lot when I got in. There was so much work to be done. We had so many problems around the world. I didn't really stop and think what kind of e-mail system will there be?

(END VIDEO CLIP)

SMERCONISH: My next guest, a former federal judge and U.S. attorney general finds this not just hard to believe, but illegal. In this op- ed in "The Wall Street Journal," Michael Mukasey argues that Clinton, quote, "defies the law and common sense." He joins me now from Southampton, New York.

Judge, before we go into the weeds, tell me in lay terms what did she do wrong?

MICHAEL SMERCONISH, FORMER U.S. ATTORNEY GENERAL: OK, she did two things that might conceivably give rise to criminal liability depending on what was in her e-mails and what she knew. The first thing she did that I think was wrong, by any standard, is to carry on her official e-mail correspondence on a private e-mail system. That's something that no reasonable person in government does, particularly in a job where you're dealing with a lot of confidential information.

She says she didn't think, then certainly people around her would have tapped her on the shoulder, or should have tapped her on the shoulder and said something. But the inherent nature of what she was dealing with was that it had to be on a secured system and it wasn't. That's the first problem.

SMERCONISH: OK. What's the second?

MUKASEY: The second was wiping the server after she turned over what she says were all of her official e-mails. First of all, she turned them over in paper form rather than electronic form, which not only that makes it difficult to word search them, or to search them at all, but also eliminates all of the metadata that was on there originally. So, that essentially is destroying part of the record.

But we don't know what else was there or if there is or items that should have been turned over regardless whether on paper or electronically.

SMERCONISH: Of what legal significance, if any, is the fact that these e-mails apparently at the time were not stamped classified.

MUKASEY: It's of no legal significance because what the law protects is the information, not stuff that's either stamped or not stamped. That's not the determining factor. The determining factor is the obvious classified nature or sensitivity of the information that's in the document.

SMERCONISH: I want to put up on the screen something that you wrote for "The Wall Street Journal". You said this, "It's a misdemeanor punishable by imprisonment for not more than a year to keep documents or materials containing classified information at an unauthorized location. Note that this is the information that is protected. The issue doesn't turn on whether the document or materials bear a classified marking. You just repeated that here. Then you say, sir, "This is the statute under which David Petraeus, former army general and Central Intelligence Agency director, was prosecuted for keeping classified information at home."

However, the individual who oversaw that prosecution then responded to you, that's Ann Thompkins, here's what she wrote for "USA Today". "I oversaw the prosecution of General Petraeus, and I can say based on the known facts, this comparison has no merit. The key element that distinguishes Secretary Clinton's e-mail retention practices from Petraeus' sharing of classified information is that Petraeus knowingly engaged in unlawful conduct and that was the basis of his criminal liability."

[18:35:2] Will you respond to that?

MUKASEY: Sure. The key -- the weasel phrase there is based on the known facts. We don't know at this point what Hillary Clinton knew about the classified nature of that material. On the other hand, the more the material comes out, the more it becomes obvious that she couldn't conceivably unaware that it was classified.

Just as an example, there was one communication from Tony Blair about a conversation that he had with Benjamin Netanyahu in which he says we ought to talk about this on a secure line. Now, for somebody to say they didn't know that contained classified information is absurd. There's an executive order signed by President Obama that says anything relating to communication with foreign powers is automatically deemed to be information that could hurt the security of the United States and, therefore, is classified. So, she really has a hard time denying that she knew.

SMERCONISH: Right, but in the case of General Petraeus, he wrote classified information as I recall the facts of that case into a journal that he then gave to his, quote, "biographer." That seems like a clear cut case where the guy absolutely knew what he was doing was wrong and did it nonetheless. I don't know how you get over that hurdle, that mens rea hurdle for Secretary Clinton.

MUKASEY: The way you get over it is to find out what she actually knew about what was there, what conversations she had at the time, what was in all of the e-mails that were on that server. And we have not yet seen or heard that. We don't know what she said to various people around her. They haven't yet all testified.

SMERCONISH: Judge, I should point out in this cycle, and you correct me if I'm wrong, you're a Jeb guy, who I think has been informally offering counsel to him. You're here offering your legal analysis. I read the e-mails that have been released thus far, I felt a little dirty doing it because it had nothing to do with Benghazi. There was a lot of personal stuff.

My worry is that we're making it difficult for the next public servant to tap their friends and advisers for candid counsel.

Take 30 seconds and tell me if you think that's justified concern.

MUKASEY: I don't think it's a justified concern if you solve the problem by putting it on an e-mail server. You can have a conversation with them in a room. If they send you an e-mail about your official duties and about material that you're dealing with as an officer, then that is a public record, the public is entitled to know about it.

When I was in government, I didn't have any private e-mail server. I didn't have a private communication device. All my communicating was done either in documents that were public or on telephone or in person.

SMERCONISH: Judge Mukasey, thanks for being here.

MUKASEY: Thanks for having me.

SMERCONISH: Up next, yes, the Iran nuclear agreement looks like it's about to go through, but there's a lot of uneasiness, especially from Professor Alan Dershowitz who wrote a whole book attacking it. Professor Dershowitz is here to explain.

(COMMERCIAL BREAK)

[18:42:43] SMERCONISH: The day after the proposed nuclear arms deal with Iran was announced, famed attorney and Harvard Law professor emeritus, Alan Dershowitz, woke up, so incensed that he wrote a book condemning it which he finished in 11 days, I guess, on the twelfth day you rested, right?

It's titled, "The Case Against the Iran Deal". And check out the die that are on that cover, one with a nuclear symbol and one with a peace sign.

Professor Alan Dershowitz joins me now.

Congratulations on the book.

ALAN DERSHOWITZ, AUTHOR, "THE CASE AGAINST THE IRAN DEAL": Thank you.

SMERCONISH: Before we get into Iran, Judge Casey was just here. We were talking about Secretary Clinton.

React to what you just heard.

DERSHOWITZ: Well, Judge Mukasey is a great man. He was a great attorney general and great judge. I think he's underestimating the impact of both the ex post facto clause of the Constitution and the fact that you need mens rea for these kinds of crimes.

SMERCONISH: In English?

DERSHOWITZ: Basically, Hillary Clinton had to know at the time that it was classified and she didn't know that material would later be classified. So, I don't think there's a substantial risk of criminal prosecution here.

SMERCONISH: All right. Let's switch to Iran. Is it all over now, except for the voting?

DERSHOWITZ: Oh, no, no, no. I think why I subtitled my book, "How Can We Now Stop Iran from Getting the Bomb?" -- I anticipated this vote, because the president manipulated it undemocratically, so that all he needed was one third plus one house, or the Senate. Majority of Americans were opposed to the deal, majority of the Senate, majority of the House. Now, we have to figure out how to stop Iran from getting the bomb.

The problem with the deal it only postpones it for 10, 12, 13 years. I have a proposal, and my proposal is we take seriously what Iran commits to in the preface to the deal, where they say Iran reiterates that it will never ever under any circumstances seek to develop nuclear weapons. Congress sort of passed a law now making that American policy.

SMERCONISH: Making it that we will take military action.

DERSHOWITZ: That's right.

SMERCONISH: To the extent there's a sign. We will act, we will strike.

DERSHOWITZ: We need deterrence. We need to have that sword of Damocles hanging.

I wish the president had started a negotiation by saying, look, Iran, you're never going to be allowed to develop nuclear weapons. We will stop. So, why do you have to suffer from these sanctions, let's negotiation now, under the specter of American military power. But we eliminated the military option, realistically, we allowed them to bargain with us as equals, which no superpower should ever do, and they are the guys who invented chess and we were playing checkers against them.

SMERCONISH: Your good friend is Prime Minister Bibi Netanyahu.

[18:45:01] DERSHOWITZ: That's right.

SMERCONISH: Any prospect of a first strike by him?

DERSHOWITZ: I hope not, but if Israel is ever confronted with the situation, the alternative of a nuclear armed Iran or a military strike, they will take a military strike. This makes that more likely. It also makes it much riskier for Israel. I think it makes war more likely, I think it makes the inevitable development of nuclear weapons by Iran more likely.

That's why even the senators who are voting with the president, many of them don't like this deal. We need to give them legislation now that will toughen the deal without changing its words. But tell the Iranians for sure, we will not tolerate their developing nuclear weapons. SMERCONISH: I've never seen anything like this. Bob Casey, senior

senator from my home state, 17-page explanation as to why he's voting this way, and I guess he felt compelled to explain himself. Let me ask you this question. In retrospect now, a mistake for Bibi to have attended that joint session of Congress at Boehner's invitation.

DERSHOWITZ: Absolutely not.

SMERCONISH: Did he not overplay his hand?

DERSHOWITZ: I don't think so. The prime minster of Israel must defend the people of Israel. He must say what he thinks is in the best interest of his country. He was invited by the head of the legislative branch of the United States government. The president should have invited him in, there should have been much more correlation between the legislative and executive branch. I mean, you cannot blame the prime minister of Israel for not doing what Czechoslovakia did in 1938, just laying there and letting their country be dismantled.

Israel has the absolute right to defend itself and its people against the threat of nuclear weapons. Remember, Rafsanjani said, if we ever get nuclear weapons, we will destroy Israel because it's one-bomb state. And even if they retaliate, Islam will survive, but the Jewish state will disappear. As Elie Wiesel once said, we always take the threats of your enemies more seriously than the promises of your friends.

SMERCONISH: I have a friend in Philadelphia, smart trial attorney, Shane Specter (ph), I'll give him a shoutout. He said, you know, this is really an acknowledgement that when an advanced country seeks a nuclear weapon, you can't prohibit them from getting it. If they want it, they're going to be able to get it.

DERSHOWITZ: Dead wrong.

SMERCONISH: Wait a minute. And what this is really about is bringing Iran into the family of nations, the world community to try to put manners on them.

DERSHOWITZ: That's not going to work. They're going to get more money to repress dissent. You can stop them. Israel stopped Iraq. It stopped Syria. The United States stopped Libya.

You can stop an advanced country from getting nuclear weapons if you maintain a firm military option coupled with tough sanctions. But if you negotiate with them as equals, they will beat you every time. And that's what happened.

SMERCONISH: Could there be a realignment among American Jews toward the Republican Party based on this issue, away from the Democrats?

DERSHOWITZ: Israel must always remain a bipartisan issue. I'm remaining a Democrat. I'm going to try to push the Democrats hard to maintain their support for Israel. I don't think this will be in the end be as divisive as it appears to be now. SMERCONISH: The case against Iran, the Iranian deal, how we can stop

Iran from getting nukes.

Alan Dershowitz, thanks.

You don't look like a guy that's retired to me, by the way.

DERSHOWITZ: I'm trying my best but it's not taking --

SMERCONISH: Say hello to your friend Larry David.

DERSHOWITZ: I will do that, of course.

SMERCONISH: Love him.

Up next, what's the connection between this astonishing parade of luxury cars and missing pages from the report on 9/11? I will explain when we come back.

(COMMERCIAL BREAK)

[18:52:41] SMERCONISH: Yesterday, President Obama entertained Saudi King Salman who ascended to the throne this past January. If you wonder where our gas dollars go, I can tell you the king took over the entire Four Seasons Hotel in Georgetown for his travelling party.

The visit came just one week shy of another 9/11 anniversary. My pen says, "9/11 never forget." My friend Steven Singer sells them for 10 bucks each to benefit a 9/11 charity called the Garden of Reflection.

It's been 14 years but something is being forgotten. We still don't have all the answers as to what gave rise to 19 hijackers who commandeered four airplanes and killed 19,000 people. We know that 15 of the 19 were Saudi nationals, but we don't know for sure whether any acted as agents of the Saudi government or senior Saudi officials.

The 9/11 Commission Report said there was no evidence of such a connection. But that finding is contested by two members of the 9/11 Commission, former Naval Secretary John Lehman, and former Senator Bob Kerrey.

Plus, an earlier inquiry by Congress supposedly points a finger at a Saudi role. I have to qualify that statement because 28 pages of that congressional report have never been made public. Bob Graham, the former Florida governor, was the chair of the Senate Intelligence Committee and co-chair of the congressional inquiry into 9/11. He has often publicly stated that he believes there was a connection between 9/11 terrorists and Saudi Arabia.

Just yesterday, on my Sirius XM radio program, he said this.

(BEGIN AUDIO CLIP)

BOB GRAHAM, FORMER FLORIDA GOVERNOR: I think the evidence that at least some of the hijackers received financial and other support from agent of Saudi Arabia is incontrovertible. My own suspicion is that when those materials are released, it's going to be found that this -- there was a network of support for the 19 hijackers, which allowed this group of men, most of whom didn't speak English, most of whom had never been in the United States, and many of whom had very limited education to carry out the complicated plot that they did on 9/11.

(END AUDIO CLIP)

SMERCONISH: Graham can't give details because they are classified.

[18:55:01] But widespread reports say the 28 pages tie a Saudi government agent named Omar al-Bayoumi to 9/11 hijackers Nawaf al- Hazmi and Khalid al-Mihdhar.

President Obama has promised 9/11 victim family members that he would release the 28 pages, but a review of the office of director of national intelligence just passed the one-year mark. In other words, the review has now taken more than ten days for every single page with no resolution. And that's inexcusable.

Mr. President, please release the 28 pages before we mark yet another 9/11 anniversary.

Still to come, your best and worst tweets.

(COMMERCIAL BREAK)

SMERCONISH: Only time for two.

Guppey Jackson tweets at me. "@Smerconish, you think you can sit in that electric blue suit and play judge and jury? Hillary broke the law and must face the consequences." Oh and I'm the judge and jury?

And then there's D.C. James who says, "OK, show of hands how many thought Dave Ramsay and Smerconish were the same person. #Doppelganger."

Two handsome guys, what can I tell you?

See you next week.