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Bill Cosby's Criminal Charges; The 2016 Race Heats Up; Fellowes: Season 6 Completes the Journey; Email "Porngate" In Pennsylvania. Aired 9-10a ET

Aired January 2, 2016 - 09:00   ET



ALISON KOSIK, CNN ANCHOR: Don't go anywhere, SMERCONISH starts now.

MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish. And so it begins, 2016, a year in which we'll elect a new American president is finally here. Not even the skies over the historic Rose Bowl were immune from the name calling yesterday.

And what would happen to someone in your workplace if they sent an office e-mail like this. That's what some prosecutors and judges have done in my home state of Pennsylvania where we call it porn game.

Plus, this weekend, we begin to say goodbye to "Downton Abbey". The show's creator, Lord Julian Fellowes, will be here to be here to offer insights about how the hit series will end.

But first, there's an issue that I want to flag regarding the new criminal prosecution of Bill Cosby. Remember, he's now facing prosecution in a Pennsylvania case only because of a testimony that he offered in a civil case which he paid to settle. That speaks well, I think, of the civil system. His defense might be that women who accuse him are in it for the money. But if he hadn't been sued by Andrea Constand, he'd be facing no criminal charges.

Here's the bigger issue. We know what we know about Cosby today only because a federal judge decided that Cosby is a hypocrite. That was the basis on which the judge released Cosby's sealed testimony from 10 years ago. The judge, Eduardo Robreno, wrote "Defendant has done the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on, among other things, childrearing, family life, education, and crime."

In other words, the judge decided that because Cosby had thrust himself into the town square on matters of public importance, he'd surrendered his privacy. And one example cited by the judge was a 2013 interview with CNN's Don Lemon. In that interview, Cosby discussed with Lemon the 50th anniversary of the march on Washington and today's leadership needs. He also shared his views on rehabilitating African-American juvenile delinquents. In short, Cosby told people how to lead their lives.

And on that basis, the judge lifted a temporary seal from 10 years ago. Revealed was that when Cosby was asked by Constand's lawyer whether he obtained Quaaludes to use for young women with whom he wanted to have sex, Cosby said yes. But the civil case was settled with a confidentiality agreement didn't stop the judge from releasing the testimony to the Associated Press on the basis that Cosby is a fraud.

The judge wrote, "The stark contrast between Bill Cosby, the public moralist, and Bill Cosby, the subject of serious allegations concerning improper and perhaps criminal conduct, is a matter as to which the A.P., and by extension, the public, has a significant interest."

Arguably, had Cosby stuck to comedy instead of public policy? His secret admission from a decade-old deposition would have remained hidden in a federal courthouse in Philadelphia. So, will this civil testimony come into Cosby's criminal trial? Did the judge get it right? Hadn't Cosby negotiated to keep those documents secret?

Joining me now, two legal experts, Areva Martin is a civil rights attorney. And prominent Philadelphia criminal defense lawyer, Ted Simon, has represented several high-profile defendants, Amanda Knox, Robert Durst among them. He's the immediate past president of the National Association of Criminal Defense attorneys.

OK. Ted Simon, is the civil testimony coming into the criminal case?

TED SIMON, PHILADELPHIA CRIMINAL DEFENSE LAWYER: Well first, let me wish you a happy new year to you, and your audience, a happy and healthy new year. Your question is an appropriate one. And I think the only answer is we don't know.

The ruling was by a federal judge in a civil case, the issue remains open in the state case. So, it will be an issue. And by the way, with respect to Judge Robreno who I've appeared in front of many times both in civil and criminal cases, his ruling was not limited to the hypocrisy that you pointed out although that's certainly was part of it.

He indicated there was no -- it was only an interim order. There was no final order. And he thought he had a reduced zone to privacy based upon the reasoning you said. He also didn't have the benefit before him by the confidentiality agreement which none of us know. And further, the only parts that were unsealed were motions that, in part, included references to the deposition. We don't, as yet, before us the complete deposition. Even the reference you that made with respect to -- that he had acquired Quaaludes and with the intent of using it for young women, also within the criminal complaint.

It's actually says, he immediately thereafter said, I misunderstood the question and I didn't mean women but woman, and then he referenced another act that he had sex with a woman with Quaaludes but there was no issue of lack of consent.

[09:05:16] So, there has been much to do about the deposition. I think there's more about the human cry that's come out based upon all the different people that have come out and made complaints. Let's not forget...


SMERCONISH: Areva, -- pardon me, Ted. Every case, the -- and the pre-trial determinations that are made have great significance but none like this. There are so many issues that are going to have to get resolved that, I think, will determine Cosby's ultimate fate. Do you agree?

AREVA MARTIN, CIVIL RIGHTS ATTORNEY: Absolutely, I agree Michael. And one big issue that has to be resolved pre-trial is whether any of those other 49, 50 plus women will be allowed to testify. We know that the prosecutor, in this case, is going to claim that Bill Cosby had a modus operandi, an M.O., a signature of sort, and that he gave women drugs and then he used those drugs to take advantage of women sexually.

And he's going to want a parade 10, 20 of those other women into that courtroom and have them testify about their interactions with Bill Cosby. Whereas, Cosby's team is going to want to limit any of those women from testifying and to have this case just be about Constand and what happened there. And they're already claiming that that was a consensual relationship between two consenting adults. So, that's going to be a really big issue in this case. Is there a signature of sort and is this judge going to allow other women to give testimony?

SMERCONISH: Ted Simon, I imagine and you were defending Bill Cosby in this case. You'd be drawing attention to the fact that she returned to his home after there having been two prior attempts at unwanted sexual events or so she says.

SIMON: Absolutely. And I think even more importantly and something that gets lost in the negative pre-trial publicity avalanche that happens in these high-profile cases is that Mr. Cosby enjoys the presumption of innocence that the Commonwealth Affairs the burden and the burden of truth (ph). And they also have that every burden of proving every essential element beyond a reasonable doubt. These are very critical principles that apply here and apply to everyone else.

With respect to your specific question, let's keep in mind this is one person making one allegation some 12 years ago after there was no prompt complaint a year later, and where a prior D.A. had said there was insufficient evidence to proceed. With respect to your question, not -- it hasn't been really mentioned that -- there were two prior occasions in the criminal complaint where the complaining witness has said that Cosby made advances, some of them fairly pronounced. And yet, despite that, she went back at least five occasions, multiple times back to his house.


SIMON: Went to his home in New York.

MARTIN: But Michael, can I...

(CROSSTALK) SMERCONISH: Yeah. But let me say this, and Ted is absolutely right to point out, but that's what the defense will rely on.

Areva, I want to put something on the screen at the risk of people's eyes glazing over because I think it's of great significance. This comes from the affidavit of probable cause. This is the prosecution speaking and here's what they said with regard to Pennsylvania law.

"Because she was fluctuating in and out of consciousness, the victim was legally incapable of consenting to Cosby's actions. The following language by the Pennsylvania Supreme Court regarding consent unequivocally supports the above proposition. Because the evidence supports the findings that the victim was intermittently unconscious throughout the assault and was, at all times, relevant in such an impaired physical and mental condition so as to be unable to knowingly consent her submission to sexual fondling and penetration was involuntary."

Apply that articulation to this case. Is consent of such great significance when everybody agrees she was drugged?

MARTIN: Well, consent is going to be huge in this Michael. And what we do know is that Cosby claims that he gave her Benadryl, 1 1/2 tablets of Benadryl. Whereas, what the prosecutor was saying is that it's a much more serious drug that left her pretty much in a paralyzed state and incapable of giving consent. So, the issue of what was given to her and whether she was able to give consent is huge in this case.

And I just want to go back to one thing your other panelist said about her coming to his house and rejecting him on two prior occasions. Let's be clear. No means no and your ability to give consent doesn't have anything to do with whether you rejected someone one time before, two times before, or five times before. If she was incapable of giving consent, then this is a sexual assault for which he should be convicted. So, that's a huge issue in this case. And I think we muddy the waters when we start talking about what she did in the past because if she was incapable of giving consent, she just wasn't capable.



SMERCONISH: Ted Simon, you and I, I think we've tried cases in Montgomery County, Pennsylvania. Let us speak to this venue. I've tried civil cases. You've tried criminal cases there. Is it a good or bad venue for Bill Cosby?

SIMON: I'd be happy to answer that. But I think what's really critical in response to you or the panelist, what's very important here is both of the before, the during, and the after. And once one looks at the before conduct, the during conduct, and the after conduct, there is substantial reasonable doubt that one can see.

With respect to Montgomery County, it is a suburb of Philadelphia. It is widely known as an upper economic suburban area, although there is also challenged economic areas. The population has changed. It's -- It formerly was very republican and now it's probably 8 percent leaning democratic. You know, there's a fair cross-section. I think it's going to be interesting to do a lot of pre-trial polling, not only of the potential jurors, but of the part of the perception of the parties involved, as well as the critical issues that are involved.

I mean let's keep in mind. This is one person making one allegation on one incident 12 years ago without a prompt complaint. And, you know, there's a lot of questions that will be preserved. There's a lot of area for cross examination. And there's a lot of room for significant pre-trial motion activity, why was there a delay, as well as the trial.

SMERCONISH: Areva Martin, a final question for you. Does the credibility of all 50 women now rest on the shoulders of Andrea Constand?

MARTIN: Well, yes and no. And again, a big question in this case is whether any of those women will be allowed into this courtroom to give their testimony. What we do know is that these women feel a sense of vindication now that these charges have been brought because this is what they've been saying all along is that this was the conduct of Bill Cosby. And they feel like this prosecutor stepping up and charging him makes it clear that their conduct, that their statements about what happened to them are true.

But I have some questions too, Michael, about this prosecutor and his promises while he's running for office, not just to stand up for victims, but he made an exact promise to go after Bill Cosby. That doesn't sit well with me. I like the fact that he's going to be pro to the victims. But the rest, his whole campaign on prosecuting one guy calls us into question whether this is about fulfilling those campaign promises or really pursuing justice.

SMERCONISH: It's interesting that you say that because as Kevin Steele ran for office, he criticized the old D.A., Bruce Castor. And essentially said, you should have done something. But in the same breath, in the same breath, he says, "It's this new deposition testimony that allows us to charge Cosby." Well, Castor never had access to that.

Areva Martin, thank you. Ted Simon, thank you for being here. I appreciate both of you.

And I want to know how everybody at home feels. Tweet me at Smerconish and I'll read some of the best later in the program.

Coming up, where Hillary uses Bill on the campaign trail, is his record with women now back in play?

And the amazing British T.V. series "Downton Abbey" returns tomorrow night for its sixth and final season. I'll speak to its award-winning creator, Julian Fellowes, a conservative member of the "House of Lords" about the impact of the program and his thoughts about America's upcoming election. (BEGIN VIDEO CLIP)

JULIAN FELLOWES, "DOWNTON ABBEY" CREATOR: Well, I'm sure Mr. Trump has many merits, and of course, great skills and talent in the way he's managed his career. Whether he is exactly how I would define a politician is perhaps something I don't know that I have anything useful to say on.



[09:16:53] SMERCONISH: 2015 was a combative year in politics and there was no let up as we went rolling into 2016. Even New Year's Day football and the Rose Bowl game between Stanford and Iowa Hawkeyes wasn't immune from the name calling and social media awards.

We'll show you the sky writing attacking Donald Trump. Well, Carly Fiorina, a Standford grad also got into the act tweeting, "Love my alma matter, but rooting for the Hawkeyes to win today." That raised a ruckus in the twitter-verse spawning lots of reaction using the #CarlieCurse. It must have been because the Hawkeyes lost big, 45 to 16. Like I said, it's been that kind of the year.

Lots to talk about with my political panel, Bob Beckel. He managed to Walter Mondale's presidential campaign in 1984, independent political analyst, Michelle Bernard, and columnist, Matt Lewis.

Beckel, what a rookie mistake, right? I've got some vision of a 20 something inside the Fiorina headquarters sending out that tweet and not realizing that's what people hate about politics.

BOB BECKEL, POLITICAL COMMENTATOR: Yeah, exactly right. I mean I could -- I would have had the thought a month to come up with something as bad as that. I mean, you talk about taking advantage of the situation as if anybody in Iowa is going to believe that she really wants Iowa to win. I mean, come on. It's a classic mistake. But then again, she's not a very well prepared candidate.

SMERCONISH: Matt, a lot of the holiday jockeying has been between Hillary Clinton and Donald Trump. Ruth Marcus wrote a column. She's no conservative. I read her on a regular basis at the "Washington Post". She wrote a column about the issue of whether Hillary has opened the door to attacks on Bill for his treatment of women. And it ended this way, I'm going to show you the last paragraph and I want you to react to it.

"But Hillary Clinton has made two moves that lead me, gulp, to agree with Trump on the fair game front. She is smartly using her husband as a campaign surrogate and simultaneously correctly calling Trump sexist. These moves open a dangerous door. It should surprise no one that Trump has barged right through it." You agree with that?

MATT LEWIS, COLUMNIST, THE DAILY CALLER. Yeah, I do. Look, I mean Donald Trump, what's he's doing, it's hypocritical, it's unchivalrous, but it's politics. Politics ain't being bad (ph) and the Clintons play tough. And I think what Donald Trump is doing here is quite brilliant actually.

This is about -- this isn't about winning the general. It's about winning the republican primary which he needs to do first if Donald Trump is going to be the nominee and have a chance to actually go after the Clintons. And what he's doing, he's basically sending a signal to republican primary voters that he's not going to allow the left to define him. He's going to go on offensive. He's not going to be like Mitt Romney who had the, you know, bogus war on women thing he used against them (ph). It was kind of passive, you know.

Donald Trump is saying, we will fight back, we're going to go on offensive, and I think it probably helps him in Iowa, New Hampshire, and republican primary states.

SMERCONISH: I agree with you that it helps him in the primary states but I'm not sure of the propriety of it. I mean, Michelle, Donald Trump has clearly made sexist comments and I could articulate a list of them if you'd like me to. But does that necessarily mean Hillary can't touch it?

MICHELLE BERNARD, INDEPENDENT POLITICAL ANALYST: No. Look, its fair game on both of their parts. I don't like the propriety of it but, you know, Hillary Clinton, I agree with Ruth Marcus. She had opened the door when she started using her husband as a candidate. Also, people have been -- I'm sorry, as a speaker on her behalf.

[09:20:00] Other people have brought up the scandals before Donald trump's past grievances against his first wife and second wife are also fair game. But the real question is, are they going to make a difference and really what is the path for 270 electoral votes or whoever we're going to find in the general election?

I wanted to say though, here's what I find is really interesting about Trump's comments against Hillary Clinton and whether he is absolutely brilliant or this has just happened to flow from him. But one of the things that we're seeing is if you look just in the world of social media and the people who like Donald Trump, many of them despise Hillary Clinton. And if Hillary Clinton is going to put together the same coalition that Obama had in 2008, she's got to deal with millennial women who do not really believe in feminism.

I think it was something for their grandmothers or their mothers. They're looking for a movement not for feminists. Then you've got part of the Obama coalition who believes that Hillary Clinton is a fraudulent feminist because she stayed with Bill Clinton in light of Monica Lewinsky and other problems in their marriage. And for many -- and for people who believe that sort of second rate feminist should've come to the rescue of Monica Lewinsky and didn't only because Bill Clinton was pro-choice and a democrat.

You've also got African-Americans part of the 2008 Obama coalition all over twitter and social media who were saying, how is it that, you know, Bill Cosby is bad, Bill Clinton is bad, but one of them is a vial rapist and the other person is someone is beloved by the country?

SMERCONISH: Let me get -- let me get Bob Beckel to respond to that issue.

BECKEL: Well, first of all, I mean it's -- it may be of all of the classic mistakes that Trump has made so far and gotten away with, take it on the most popular politician in America who is Bill Clinton. I have Bill Clinton on the campaign trail every day. What is Trump going to do? Carry the blue dress around?

I mean, look, people get forget -- forgotten this. Now, maybe republicans haven't but they're already going to vote anyway against Clinton. That's not of the point. If you're going to run into a general election, it's like the republicans when they tried to impeach Clinton. Look what happened, the country we built. They said, "Oh, will cause it to flander." And the country said, "Yeah, so what? We know that." I mean...

LEWIS: But this is all -- but this is all about the primary and that's why, I think, this is so key is if you look at how republicans respond this early right now, they have -- and I wand to call it, inferiority complex. But there's a sense that the media is out to get us that political correctness has run amok. And we have this thing, if you follow twitter, if somebody talks about if a republican gets in trouble for drunk and driving, we will say, "Well remember Chappaquiddick." Or if a republican gets in trouble for saying something racially insensitive, we will say, "Yeah, but Robert Seaberg was in the KKK."

What Donald Trump is doing is tapping into this. Yeah, but the other side did it too. And that I think he is pushing buttons that they'd like to have pushed.


BECKEL: I would love to have the Clinton campaign, they won't do it, but there's stuff on Trump that is almost worse. I would say, push it out. They don't want to do it because of propriety. If it were up to me and I might do it anyway. I think Trump's got more problems on sexual issues that you can possibly imagine.

SMERCONISH: It sounds like you know something, Beckel. I want to show...

BECKEL: Yes, I do.

SMERCONISH: I want to shoot you, do you care to share it here?




BECKEL: And if I share it anywhere, I'll share it here Mike, but not now.

SMERCONISH: Thank you. Michelle Bernard, I want to show you a map.


SMERCONISH: Nate Cohn writes the Upshot column at the "The New York Times". Now, this has to sink in for a moment. Put the map up that shows where Donald Trump is most popular among republicans. Let that sear into your mind for just a moment. I'm now going to show you the handiwork of Seth Stephens-Davidowitz. He's an economist at "The Times" who studies Google searches.

Look at where racially charged internet searches are most common. In fact, Catherine, flip back to the other map which shows where Trump is most popular. And one more time, go back to where you find the most racially charged internet searches. Pretty compelling, isn't it Michelle Bernard?

BERNARD: Absolutely. I read the piece in "The New York Times" and took a look at the underlying study. And it's actually very frightening. One of the two big takeaways from the article and from the study behind it are, number one, the largest percentage of Donald Trump's supporters at this point in time are actually self-identified republicans who are registered as democrats. And most of them live in areas of the country where we find the most racial animus. It is in the south. And as you move west, Donald Trump loses support.

It is a very scary thing for a person of color. It should be a scary thing for women. It should be a scary thing for anyone who is other than a white male because of what Donald trump is appealing to in order to win this election.

[09:20:09] SMERCONISH: It's a little scary for us too, Michelle. Go ahead. It's a little scary for us too.

BERNARD: I'm sure. I'm sure. But you won't end up being a Tamir Rice or someone else in -- that ends up shot dead because of racial animus.

SMERCONISH: Matt, go ahead quickly.

LEWIS: Look, I think that some of which Trump is tapping into is understandable, about economic concerns, and its populism. It's not, you know, inherently pernicious. I do think he's also tapping into the dark side of the forest. You know, some bad instincts out there. And if you add it all up, that's why he's so popular.

SMERCONISH: Bob Beckel, one final subject. I predicted that there would be jockeying, punching within your weight class before the holidays and we've now seen it in so far as Jeb and Rubio and Christie. Instead of focusing their energies on Donald Trump, are looking at one another. Can that be a winning strategy for one of them to emerge as the establishment candidate?

BECKEL: Well, it has to be. I mean somebody's got to emerge. It's going to be three people coming out of Iowa or maybe four. They go to New Hampshire. New Hampshire always has a surprise. It's unpredictable. Right now, we're going to wake up the day after New Hampshire and say, "Where did that come from?" And they always seem to upset Iowa. There'll be three more coming out of New Hampshire. If you go to South Caroline, this thing could go on with Cruz, Trump and, quote, "establishment candidate" well into march.

SMERCONISH: Bob Beckel, Matt Lewis, Michelle Bernard, we appreciate all three of you. Thank you.

BERNARD: Thank you.

BECKEL: Thank you.

SMERCONISH: Now, it's your turn to reach to what you just watched by tweeting me, @smerconish. I'll read some of the best later in the program.

Up next, tomorrow, the big night, "Downton Abbey" is back for its final season. Every line of dialogue on the hit series has flowed from the mind and pen of one man, Lord Julian Fellowes. He will join me here next. Here's some of the delicious dialogue that he's written for the marvelous, Maggie Smith.


UNIDENTIFIED FEMALE: I hope his arrival means you intend to make it public.

UNIDENTIFIED FEMALE: Darling, granny, you know how much I value your advice.

UNIDENTIFIED FEMALE: Which means you intend to ignore it.

UNIDENTIFIED FEMALE: The point is I won't be hurried into anything. Not by you or by him.

UNIDENTIFIED FEMALE: If you weren't certain, why on earth did you go to bed with him?



SMERCONISH: Tomorrow's the beginning and the end, the last season of "Downton Abbey", Season 6, at least here in America. The period piece form the early 20th century featuring British aristocrats, their extended family and servants has been a huge success.

[09:30:04] In the age of bingeing, what's the best way to watch? I put that question to the show's creator and sole writer, Lord Julian Fellowes.


SMERCONISH: Please give me advice how to enjoy the final season of "Downton". Do I savor them one at a time or do I wait and binge- watch?

FELLOWES: Well, I'm not the person to ask really, because I'm the maximum binge-watcher.


FELLOWES: Yes, yes. I can't -- I've lost my taste for allowing the transmitters to dictate when I will see anything. So, I try to avoid the spoilers. I get to the end of the series, buy the box and go mad.

SMERCONISH: Given the emotional attachment that so many of us feel to "Downton" did you feel some sense of obligation to end on a high note, keeping in mind that, of course, none of us here in the States know how it all ends?

FELLOWES: You know, in truth, we were originally planning to end on the fifth series. And then when we started to get nearer to that, it just felt as if we had too much to do. We needed really a whole series that was about resolution. And so, we decided to do six.

So, it's not as if we're cutting ourselves off short, we actually thought we would end the year earlier. Because, you know, it's good to leave the party when the people are still sorry that you go. And not wait until everyone's incredibly relieved. And we just felt we sort of completed the journey really. And, of course, it was a bit sad because it's been an extraordinary adventure in my career, very unlikely to be topped.

And, you know, I mean, I consider myself lucky to have wanted this sort of world sensations, you know? But nevertheless, everything must come to an end.

SMERCONISH: The final season has, of course, already aired in the U.K. But I think it's kept relatively well under wraps here in the States. I'm sure if I were to go online, I could watch, I could figure out, I could know everything. But are you surprised in a world with 24/7 CNN-oriented news bubble, that the final stories have not migrated?

FELLOWES: Well, I think people are nicer than that, really. I mean, I think, you know, not everyone wants to spoil it for the fans on the other side of the Atlantic. I mean, personally, I wish it went out on the same day. I don't really understand why it doesn't.

I mean, the BBC with I think it was "Dr. Who", they showed it both days on both sides. That seems to me to be the obvious answer. I don't know why we don't do that.

SMERCONISH: I know why we're so interested in what goes on in the U.K. Why this so popular in England?

FELLOWES: Nobody knows why this show was so successful before it was made. It was assumed that the audience was dead. Everyone told Peter Finch that he was mad to be making it. Well, he's had the last laugh.

You know, nobody knows why people want something. It's got a combination somewhere in there tucked in there that appeals to people. You know, when I was a child, my mother used to allow us to fool around in the kitchen and give us sort of flour and milk and make little gray things that we were then forced to eat. But one day, I made perfect eclairs aAnd they were absolutely

brilliant. She said to me, what did you do? What did you do? Of course, I couldn't remember what I'd done. I didn't know how I made them. I don't know how I made this.

SMERCONISH: Am I correct that every mind of dialogue flowed from your line from your pen?

FELLOWES: Every line of dialogue.

SMERCONISH: I mean, how rare is that? What happened to concept of the writer's room?

FELLOWES: Well, I don't think the writer's room is as established in Britain as it is here. I mean, I don't want to talk as if I don't admire a writer's room. I mean, I thought Matthew Weiner's management of "Mad Men", we at the writer's room, was extraordinary because he kept his very distinct style going on all the way through the series. It never waivered, it never weakened.

And that seems to be quite as much of an achievement, as writing every line yourself. I mean, in my case -- I don't know, we thought about it, but it just seemed a difficult rhythm for people to pick up. I mean, that's probably me being vain. I'm sure there are probably 500 people passing this hotel who could have written half of it, but in the event they didn't.

SMERCONISH: For which of the characters have you most enjoyed writing dialogue?

FELLOWES: The answer most people expect me to give is Maggie. She's very interesting to write for. I mean, I found things for her -- you see how I sink into it -- with her. That's -- you know, she's lovely to write, but she's very, very funny. She's very witty. You never have to explain why a line is funny.

And she does have this marvelous gift to be the same person to take you through tragedy, through drama, into comedy, and she never waivers.

[09:35:00] She's absolutely solid. I mean, you know, she could have a really funny line and then suddenly give us that scene when after Sybil had died. And, you know, really breathtakingly moving, but then making a funny crack a few minutes later.

But, I mean, they're actually in there different ways, they're all good to write for really because it's the first time I've written a series. And a series means that the performance you're writing for has already happening with a film or a musical, or, you know, a miniseries of four parts. You write it, it's finished. They cast it, they play it.

But with an ongoing series, as you write, you can hear the voice of the actors you're writing for, and that is a completely different experience, and one which I must say I've enjoyed very much. It's been one of the big pluses because "Downton" is the first series I ever wrote.

SMERCONISH: You're now on Broadway, you wrote the book for "School of Rock." Is there a possibility that Downton ends up on Broadway?

FELLOWES: As you were phrasing that I thought there was a question that was going to come at the end of it.


FELLOWES: I don't know, people talk of a film and they talk stage play, and a musical I've heard muted. You know, some of the newspapers in England is quite determined it's going to be one of these. But nothing's fixed yet.

I mean, I'm sort of up for it. I don't -- you know, I don't sort of dig in, absolutely not. I think it would be quite good fun. I mean, a play would almost certainly mean a different cast. And that would be something for the public to sort of get past and embrace.

But I don't know, you know, who knows. I do love it Broadway, it's nothing like that, of course.

SMERCONISH: Switching gears. You remember from the "House of Lords". Give me the view from across the pond of our 2016 presidential race.

FELLOWES: Blimey. That's all (INAUDIBLE) to ask me.


FELLOWES: I mean, I am Tory. That's --

SMERCONISH: You're a conservative?

FELLOWES: I'm a conservative. Here, it's perfectly public knowledge. So, in that sense, I might be presumed to favor the Republicans. But I have to say that for me, I think Hillary Clinton seems a more convincing world politician.


FELLOWES: I think she has a grasp of the political language, what's happening in the world. Whereas some of the others seem -- without naming any names -- seem rather insular in their approach. And, you know, when she first was in the White House as Mrs. Bill, I think she seemed less broad-minded, to have less of a grasp than she has now. But now, after she's been secretary of state, she seems to me a stateswoman.

And I also feel, in as much as I'm allowed to have an opinion about America's government, you know, to see a woman president, it's about time.

SMERCONISH: Donald Trump also regards himself as a conservative. I'm sure he would say he was a Tory, if he were in the U.K. Is he your type of conservative? FELLOWES: Well, I'm sure Mr. Trump has many merits and, of course,

great skills and talents in the way he's managed his career. Whether he is exactly how I would define a politician is perhaps something I don't know that I have anything useful to say on.

SMERCONISH: Thank you very much. Thank you for all of the entertainment that you've provided to so many of us.

FELLOWES: Oh, thanks. That's very nice of you.

SMERCONISH: Thank you.


SMERCONISH: An interesting chap, right?

Hey, I want to thank the Foundation for Breast and Prostate Health, their president Shelley Schwartz, for allowing me to interview Lord Fellowes during their fund-raiser.

Up next, I've got to tell you about the e-mail scandal in my home state that's called porngate, a leak of thousands of emails sent by prosecutors and judges and others with content like this. I'll explain when I come back.


[09:41:46] SMERCONISH: Take a look at this image. As you can see it shows a white guy wrestling a bucket of fried chicken from two African-Americans that says "bravery at its finest."

Now, imagine, you're an African-American criminal defendant with a court date who is face a prosecutor who sent that image to colleagues.

Here's another one, sent among state lawyers meant to mimic motivational posters, boobs, what more motivation do you need? Not exactly confidence inspiring for, say, a litigant in a sexual harassment case.

Welcome to Pennsylvania porngate, a scandal playing itself out in my home state. It's already cost one state supreme court justice his job. Another is suspended. At least 60 employees have been fired and another 60 reprimanded.

So, how did we get here? The answer is Jerry Sandusky. It's complicated but I think I can complain.

Sandusky, you'll remember, is the former Penn State assistant football coach now serving a 30 to 60-year prison sentence for the sexual abuse of ten boys. The Sandusky investigation took 35 months. Some in Pennsylvania have wondered if it was delayed for political reasons.

Tom Corbett was the attorney general of Pennsylvania on whose watch the case was initiated and he was then running for governor. Did Corbett drag his feet so as not to alienate Penn State alumni while he was running? Enter Kathleen Kane. When Kane for attorney general in 2012, she

promised to investigate the sluggish pace of the Sandusky investigation. She won the election and she promptly hired a special prosecutor. While investigator H. Geoffrey Moulton Jr. did criticize the pace of the investigation, he found no direct evidence due to electoral politics.

But that investigation did uncover something else, widespread circulation of pornographic and misogynistic e-mails at the highest level of Pennsylvania government. One of the email offenders is Frank Fina, he ran the Sandusky investigation. Using a state email account, he sent the fried chicken cartoon to colleagues.

Fina and Kane, they're enemies. Fina didn't like Kane's criticism of the Sandusky case and was incensed when Kane wouldn't pursue criminal charges against several Philadelphia Democrats all African-American who were caught accepting money and gifts from a lobbyist. Details of Kane's refusal were leaked to the media.

Kane retaliated. She now finds herself facing felony perjury charges for allegedly leaking confidential grand jury information in another case to embarrass Fina. These days, Fina and two other high level state prosecutors are working for the Philadelphia district attorney Seth Williams who will join me in a moment.

Kane is fighting to keep not only her job but also her license to practice law. And one more thing, Kane has a win sister. Herself, a state prosecutor, who apparently sent some off-color images of her own.

Nobody knows Pennsylvania politics better than Dr. Terry Madonna. He's the director of the Center for Politics and Public Affairs at Franklin and Marshall College.

All right, Terry, how did I do?


SMERCONISH: It's complicated.

MADONNA: The only point I would add after these -- to say the least. After these emails, we learn about emails after the Moulton report. The real problem exists about what Attorney General Kane did with them. She refused to make a large number of them public, selectively releasing them, and it looked like through the process of releasing them that she was going after Frank Fina, the aforementioned Frank Fina and folks connected to the attorney general's office when Tom Corbett was attorney general, selective release.

We found out last January that the Supreme Court of the state said those e-mails were not covered by a grand jury protection order and could be released. Newspapers in the state have repeatedly filed right to know requests to get them. But the attorney general has refused, unless recently, to set out a process that makes sure those e-mails were released in a timely fashion, accurately released, not holding some back selectively, to benefit the friends and to damage enemies.

SMERCONISH: Terry, let me ask you a big picture question because this gets a lot of ink at home. "The Philadelphia Inquirer" has been all over it. You know I answer phones for talk radio. I don't know that I answer phones for a living in my talk radio program. I don't that people are incensed.

And I wonder, is this sort of thing common in a lot of workplaces, and is that the reason that perhaps the public is a bit forgiving?

MADONNA: Yes, that's a great point. I think you're right about that. The other thing is that, despite as you pointed out earlier, it's so complicated. I've been doing this for a long time, like you have. I don't remember a story line with so many subplots.

This could be a miniseries on TV. This is going to be a miniseries on TV. We could spend hours talking about the nuances, the responses back and forth from Kane and her opponents. And it's not likely to end anytime soon.

I think number one, you got the complexity of it. Number two, you've got almost daily stories by some excellent newspapers in the state, getting into great detail. And then I think you are right, there's a lot of jokes and e-mails circulated back and forth in the workplace.

But you hit on an important point, this involves judges and prosecutors that, obviously, need to be held to a higher standard. And then there's the question of what that means when defendants have cases before the courts in this state.

Overall, I think the courts in Pennsylvania do a good job. Most -- the vast majority of the prosecutors are first rate. This is the first kind of scandal like this that we've had. We've had one prior attorney general sent to prison in modern history. But that involved a campaign problem. Not something directly to do with his job as attorney general.

SMERCONISH: Dr. Terry Madonna, thank you for being here.

I mentioned previously the district of attorney is Seth Williams.

Seth, thank you so much for joining me. There are a lot of us at home who are wondering why are you taking a political hit by having some of the individuals who sent these e-mails on your payroll, when in fact, they didn't do it on your watch, they did it before you hired them? Why haven't you cut them loose?

SETH WILLIAMS, PHILADELPHIA DISTRICT ATTORNEY: Well, you make a very good point. But, again, the indicted, suspended attorney general, you've heard months of hyperbole from her about these e-mails. And this comes at the convergence of sex, racism. You would think she was a companion against those.

But as you've stated, and clearly put out here, this was just a reaction, a political vendetta of hers against Frank Fina, for his prosecution of Jerry Sandusky, and then for her failure to prosecute six elected Philadelphians for being on tape, audio and video, for taking bribes.

And so, when she didn't take those cases and it came out, all she had to say was that in her prosecutorial or professional discretion, she chose not to prosecute those cases. Instead, she said that they were racists and that the prosecutors and investigators were racist.

For two years, I had to bite my tongue because I knew otherwise. But recently, a state rep entered a no contest plea. She had entered a motion for selective prosecution based on race, and we were able to show and her attorney withdrew that and apologized because there was no racism involved in the prosecution. And because of that, I had to bite my tongue.

[09:50:01] But the documents all showed that the attorney general knew there was no racism, and that for months, just her own political vendetta, she'd been using this false narrative.

SMERCONISH: But, Seth, if she said if she released these e-mails because of a vendetta, let's just accept for the purpose of this discussion, that that was her motivation. The facts are that the guys that you've hired sent these things. It is not like she created them out of whole cloth.

So, you know, the city council has voted 13-2, to say to you, can these guys -- and I would argue that to your political peril, you have kept them on your payroll. How come?

WILLIAMS: Well, I believe in due process. You know, as an African- American, I want due process for everyone, not just young African- American boys selling weed on the corner but even white prosecutors. And so, I had a very systematic method of investigating what happened. And again, the e-mails are ignorant and just terrible that people would do this, but they weren't employees of mine and it happened while they worked in the attorney general's office, two of these employees were just recipients.

So, we've seen now that for political vendetta and vengeance, the A.G. released these. I want all of the e-mails released. The citizens of Pennsylvania deserve to know how far did this go. Was there any ex parte discussion between judges and prosecutors? We just can't have them released solely to attack three people.

We need to see all 1 million of these e-mails, even those between the attorney general and her sister that included these same topics. It's unfortunate. I think all Pennsylvanians need to know the full truth about all of those emails, not just a select few.

SMERCONISH: Final question: do you worry about the integrity of some of your prosecutions? I showed that fried chicken cartoon. I mean, if there is an African-American being defended by your office, including the individual who sent that out, doesn't he have a legitimate beef to say, look at how they view me, I mean, they view in a discriminatory action, if they think it's funny where a white guy is wrestling two black guys for a bucket of fried chicken?

WILLIAMS: Yes, that's you're exactly right, and it isn't funny.

And people often believe that the root of most criminal justice in Pennsylvania and America is racism. And to have the A.G. pour gasoline on that fire is terrible.

What I've done, though, is more than A.G. has done. I've taken those three. I've put them in parts of my office where they handle civil matters and not looking or evaluating active criminal cases. The A.G. has even promoted people in her office who did the same things.

And so, I have to be consistent. I have to also consider what will happen if I terminate people. Will they sue the city of Philadelphia? We're systematically addressing those concerns. I listened to city council and concerned members of the community and have taken them away from actively prosecuting criminal cases, but still using their more than 60 decades combined of legal experience still to help the citizens of Philadelphia advance the justice system.

SMERCONISH: Bottom line, doesn't appear you intoned fire them.

WILLIAMS: Well, you know, I continue to evaluate it. It's an on going process. Life is dynamic. It's not static. If I get more information, I will continue to make judgments I think are most appropriate for the citizens of Philadelphia going forward.

I have changed some of the process and evaluated it. But, you know, I want to move forward and make sure Philadelphians are safe. People don't stop me on the street and ask me about this. They ask me about stopping the gun violence on our streets.

SMERCONISH: Understood.

WILLIAMS: But it's an ongoing process.

SMERCONISH: Thank you for coming on. I appreciate your perspective, Seth Williams.

WILLIAMS: Thank you for having me, Mike.

A lot of tweets have come in during this hour. I'll get to a couple in just a moment.


[09:56:18] SMERCONISH: I like to say you can follow me on Twitter if you can spell Smerconish. Here is some of what has come in in the last hour.

This, "Bill Cosby is clearly a target of the liberal left and the establishment black community."

What a shame that everything in this country is viewed according to the ideological divide. That is a ridiculous observation.

Secondly, "Hey, Smerf, inform that Limey," that would be Lord Julian Fellowes, "That we the people don't want a friggin politician."

Then, there was this, "Choosing between lunch between Trump or Fellowes, Sir Julian wins hands down. Amazing and interesting gentleman."

Frankly, I would rather be a fly on the wall and watch Trump and Fellowes have lunch together.

Thanks for watching. I'll see you next week.