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Evidence Surfaced that may Jeopardize Cosby's Case; Trump and Cruz Neck and Neck in Iowa; Interview with Florida Rep. Alan Grayson; Report: W. Post's Rezaian, Others Freed by Iran. Aired 9-10a ET

Aired January 16, 2016 - 09:00   ET


[09:00:01] CHRISTI PAUL, CNN ANCHOR: Yes, tomorrow night, 8:00 Eastern, "The Person Who Changed My Life." We hope you'll be able to join us for that.

VICTOR BLACKWELL, CNN ANCHOR: All right. That's it for us.

PAUL: "SMERCONISH" starts now.

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

We start with breaking news, my exclusive story about comedian Bill Cosby and evidence that I believe jeopardizes the criminal case against him. You'll recall that just a few weeks ago the famous comedian was finally hauled into court in suburban Philadelphia to face charges for sexually assaulting Temple University employee Andrea Constand.

This after at least 50 different women - you see many of their faces here, all had come forward to say Bill Cosby had molested them. I have learned that this case, the only criminal charge that Cosby has ever faced might soon fall apart.

I have obtained a document that no other journalist has that could blow the case up. I talked about it a bit last night on "AC 360," but now new information.

So let me back up and tell you the story.

Back in 2005, the then district attorney of Montgomery County, Pennsylvania, Bruce Castor was investigating Andrea Constand's case. Kastor has said that he wanted to prosecute Bill Cosby but believed he didn't have enough evidence to sustain criminal charges beyond a reasonable doubt. Still he thought that Constand might get justice in a civil suit.

He claims he made an unusual deal to create an atmosphere where she could get that justice. The DA told the comedian's attorney, essentially "I won't prosecute your client if you promise that he'll testify fully in a civil case." Cosby's attorney allegedly agreed. It was a deal.

In the deposition, Cosby admits he had sexual relationships with at least five women outside his marriage, gave prescription sedatives to women he wanted to have sex with and tried to hide affairs from his wife, Cosby says he gave Constand one and a half tablets of Benadryl, an over the counter anti-histamine, that can cause drowsiness to relieve stress.

He said that the sex and drug taking were always consensual. Why would Cosby testify so openly? Because allegedly he believed it would never be used against him in a criminal court. The civil case against Cosby was settled and the deposition remained sealed for many years but then last year a judge decided to release a transcript of it, and the explosive charges Cosby faces now are largely based on that transcript which we now know could very well be thrown out of court when the case has a hearing on February 2nd.

In the last few days, I obtained an e-mail, this e-mail that I confirm was written by ex-DA Bruce Castor to his successor last year, three months before the charge against Cosby. Only those involved in the case have seen this e-mail until now. It's the only clear record of the deal that was made promising not to prosecute Bill Cosby.

Here's a excerpt.

Castor wrote, "I can see no possibility that Cosby's deposition could be used in a state criminal case because I would have to testify as to what happened and the deposition would be subject to suppression. I cannot believe any state court judge would allow that deposition into evidence. Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the county and maybe even against you personally." Bruce Castor has been subpoenaed to appear at the hearing on February 2nd, at which time I believe the case can fall apart.

Joining me now, former prosecutor and defense attorney Mark O'Mara, Philadelphia deffense attorney William J. Brennan and defense attorney Areva Martin. Mark O'Mara, what could you as a defense attorney do with the information that I just provided?

MARK O'MARA, CNN LEGAL ANALYST: Well, there's no question. I would go to the court and say, look, judge, we have this agreement, it's done. It's an immunity agreement which means you simply cannot use my client's testimony against him. It is the only reason why he testified, was because of the agreement, and it needs to be suppressed.

Now I will tell you, Michael, there are a lot of problems with the way Bill Cosby's lawyers handled or failed to handle this 10 years ago. Why this agreement was not iron clad and in writing kept away in a lawyer's safe somewhere to use for a precise time like this, I have no idea. Plus immunity agreements, even if they existed are not iron clad, they're not 100 percent.

There's a lot of ways this information can still be used against Bill Cosby if he doesn't act appropriately under that supposed agreement.

SMERCONISH: Bill Brennan, give me the view from the ground in suburban Philadelphia on this issue of immunity. Because I know that the current DA says there's a protocol that one must follow for immunity. But immunity is provided by a court. I think this is Castor in the e-mail saying I exercised my DA's discretion.


WILLIAM J. BRENNAN, PHILADELPHIA DEFENSE ATTORNEY: Absolutely, Michael. I think to call this an immunity agreement is really to play into the hands of the current district attorney because in his response he says there are formal protocols for immunity agreements and they weren't followed here.

This is a promise by the former district attorney who had the authority to bind the Commonwealth in perpetuity not to prosecute. It's very well. I agree with Mark. It is curious that this was not reduced to writing. But it's a very strong possibility that Mr. Cosby may not have wanted a, "immunity agreement." Immunity infers to the public that you have criminal exposure and that because of the largess of the prosecutor, you're getting a pass on your crime.

Let's go back to 2004-2005, Dr. Huxtable was the most popular guy in America. I don't think that he wanted an immunity agreement. He wanted what he got which is a binding promise not to prosecute. He gave up a valuable right in testifying under oath at the civil deposition. That bell can never be unrung and a subsequent prosecutor should not and hopefully will not be able to invalidate the agreement that Mr. Castor made.

SMERCONISH: Areva, I know this is complicated for non-lawyers. So let me walk through two steps and then I'm eager to hear what you have to say.

A petition was filed last Monday by Cosby's lawyers. Here's an excerpt, "The commonwealth through then District Attorney Bruce Castor promised in 2005 that Mr. Cosby would not be charged in connection with these allegations in exchange for Mr. Cosby giving testimony in the complainant's civil case," and then this line which I've highlighted, "Mr. Castor reminded the district attorney's office about that agreement in 2015 before these charges were brought."

And Areva, there was no further explanation as to how former D.A. Castor had reminded them. Now we know he did it in writing on September 23rd, three full months before they charged Cosby. Here is another excerpt from the e-mail that he sent. "With the agreement of the defense lawyer and Andrea's lawyers, I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove him from the ability to claim his fifth amendment protection against self incrimination, thus forcing him to sit for a deposition underoath."

So castor's side of it which will be challenged, I 'm sure, by the prosecution, is to say I was trying to do her a favor. I couldn't meet the criminal burden. I tried to set the table for her to get paid in the civil case. Your reaction?

AREVA MARTIN, DEFENSE ATTORNEY: Well, Michael, I think this play is very nicely into what Cosby's attorneys have been saying over the last couple of weeks which is that the current D.A. is using Cosby's case to fulfill a political promise that he made, not to pursue justice, not to follow where the evidence takes him, but really to just say to the Commonwealth, "look, I promised you when I was running for D.A. that I would prosecute Bill Cosby no matter what, and now I'm doing what I promised you."

This is very troubling to me as a citizen, and anyone should be very troubled by the fact that a district attorney can use his government power that he possesses to make a promise and then a subsequent district attorney can try to undermine that promise simply to fulfill his own political ambition. So I think this is a troubling matter. I hope the case is dismissed because this I think undermines everything we believe in this country about the ability to trust what our government officials tell us and what they do.

SMERCONISH: Areva, it occurs to me that the emotional fate of 50 different women is now resting on this one case because it's the only case where he faces criminal charges.

MARTIN: And it's a sad thing. Because this is a prime example of such incompetence. I cannot believe that the current district attorney didn't have this information available to him before he filed these charges, yet he wants the entire public, he wants this case to rest on this deposition testimony when we now know that the former district attorney made a very specific promise not to ever use this testimony in a court of law. I don't see how he can move forward with any kind of integrity and prosecute Bill Cosby on the basis of this deposition.

SMERCONISH: Mark O'Mara, I don't want to convey to people at home that this will be uncontested. I anticipate and I have a statement that I'll get to in a moment that it will absolutely be contested by the current D.A. who will say we don't believe there was an agreement, or to the extent there was it wasn't binding. Or he'll say that even the former D.A. left open the door that he would bring charges at a later date. Mark O'Mara.


O'MARA: Which he did. Let's back up a little bit. An immunity agreement is a tool used by prosecutors. I, as a prosecutor can say, I won't use this information against you. But the idea that they promise forevermore never to prosecute Cosby would be way outside the norm of an immunity agreement. What they can't do is use that precise statement against him in their case in chief.

Meaning, if there's other information out there - I'll give you an example. We now have similar what we call, Michael, you know, similar fact evidence. He has a number of other victims out there that he could bring in and say the facts of that case are so similar to the facts of this case that this jury should hear about it. That similar fact evidence was not available 10 years ago and is very significant evidence. So that's the first thing.

The second thing, if Cosby were to get on the stand and say something in derogation or opposition to what he said in the deposition, it can still be used. If I go in and say the light was red in my deposition. I go to trial and I say the light was green. Even with an immunity agreement for what we call impeachment, they could then use my deposition statement. There's a lot of nuances here that are not going to be vetted out by one (INAUDIBLE).

SMERCONISH: Understood.

O'MARA: -- decision.

SMERCONISH: Can I make one other observation to Bill Brennan. Bill, you know - we're both lawyers in the Philadelphia area. You know that there's been a lot of head scratching among attorneys who say why the heck did Cosby speak to openly in his civil deposition, especially when he had such a skilled attorney at his side. Wouldn't this e-mail explain it? I mean it all kind of fits doesn't it that Cosby spoke so freely because he was testifying without any fear that he might get charged for that which he was about to say?

BRENNAN: Absolutely. At the time that the agreement was reached, Bruce Castor was the elected district attorney of Montgomery County, Pennsylvania. In that capacity, he had the absolute authority to bind the Commonwealth, not just during his administration, but through his successor administrations to this agreement, and the problem is, it's fundamentally unfair to renege on the agreement.

Mr. Cosby gave up one of the most valuable rights we possess, the right to protect against self incrimination, based on the promise from Mr. Castor that he would not be prosecuted. Now it becomes hot fodder during an election campaign here in Montgomery County in the fall of 2015 and the first assistant district attorney, who is now the D.A., runs basically on this issue. Similar to the '88 Bush-Dukakis campaign when the pardon of Willy Horton was bandied about.

SMERCONISH: A political issue. Hey, let me ask -

BRENNAN: -- simply says I'll prosecute if you elect me.

SMERCONISH: I need to ask Areva something. Areva, I know that the current D.A. is going to rely on a press release that Bruce Castor, the former D.A. issued back in 2005. Here is what it looks like, if we could just put it up on the screen.

This was the press release issued February 17 of '05. There's one line in it in the final paragraph that the current D.A., no doubt, will zero in on. It says "District attorney cautions all parties that he will reconsider this decision should the need arise," which seems on its face to suggest the door was always left open to go after Cosby if there were new information coming to light.

But I take note of the fact of the preceding sentence, big paragraph. Put it up on the screen if you wouldn't mind. The district attorney does not intend to expound publicly on the details of his decision for fears that his opinions and analysis might be given undue weight by jurors in any contemplated civil action. Here is the point I'm trying to make, I think the old D.A. is going to say when I talked about leaving the door open I meant to me speaking publicly, hopefully, you follow that issue, Areva and can say something about it -

MARTIN: Yes, I think the former D.A. is double-talking. He has this private agreement that he's made with Mr. Cosby's attorney, but yet he's issuing this press release where he's talking in code. I just think he has a fundamental problem here as William has said. You cannot make a promise to a citizen not to prosecute him and encourage him to talk freely about things that could be prosecutable and then two years, five years, 10 years later, find that person in the situation being prosecuted on the very issue that you said that you would not use.

So when he talked about prosecuting Cosby recently using that deposition, I think that's just disingenuous and it think it's fundamentally unfair. I hope the judge sees it that way.


SMERCONISH: Let's wrap up as follows. Each one of you gets a closing statement on the significance of this e-mail sent by the old D.A. to the then D.A. three months before they charged Bill Cosby saying, "hey, you can't do this because we cut a deal." Mark O'Mara, sum up.

O'MARA: No question it's going to be significant. I have no idea why it wasn't in writing. I don't even know why his civil lawyers back then had him sit for a deposition when the plan always was to settle this case out. Why even have a deposition?

I think that was the second mistake they made. The first big mistake, this should have been in writing and ironclad. It may trash the present prosecution against Cosby.

SMERCONISH: You raise a good point, right? If the fix was in to just make the civil case go away, then why not write the check without him ever sitting for it? Bill Brennan, you wrap up.

BRENNAN: Michael, I think it's as simple as this. The Commonwealth made a deal with Mr. Cosby. In reliance now to his detriment he gave testimony he otherwise could have protected himself by invoking his fifth amendment rights. That bell cannot be unrung and this case should be dismissed. The Commonwealth should honor this deal.

SMERCONISH: Areva Martin, your final thought?

MARTIN: Prosecution shouldn't be based on political ambitions of district attorney's, your - that district attorney's decision to run for office should not have hinged on whether he could prosecute Mr. Cosby on evidence that had been previously been agreed never to be used in a court of law.

SMERCONISH: Thank you all three of you. I really appreciate your expertise on such an important matter.

I want to point out to the audience at home. We attempted to get comment from all the principals involved in this case, former D.A. Bruce Castor won't comment. Current district attorney, Kevin Steal, replied, "there is a specific legal method to grant immunity. That was not done in 2005. In fact, as you can see from Castor's press release in 2005 where he announced he is not filing charges he states, 'District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise.' As we've indicated my office does not try any case in the court of public opinion, we try them in a court of law. We will be filing a response to their motion which will address this issue in depth."

Dolores Treani (ph) who represents alledged victim, Andrea Constand, she tells CNN she was not part to any deal, to release Bill Cosby from the threat of prosecution.

Now I'm sure many of you have opinions about this latest development. By all means, tweet me @smerconish and I'll read some later in the show.

Coming up, another crazy week in politics. Ted Cruz attacked by "The New York Times" for his secret million dollar loan responds by using the story to help raise more money.

Meanwhile, Hillary Clinton is losing support even faster than she did in 2008. Can she stop the slide this time?



SMERCONISH: Sixteen days until the Iowa caucuses. Donald Trump and Ted Cruz are running neck and neck in the hawkeye state. In New Hampshire Trump is in the lead. One burning question asks, who among the more establishment candidates might emerge. Lots to talk about with our political panel. Nick Gillespie is editor in chief of Crystal Wright is the publisher of the conservative black chick blog and author of a brand new book called "Con Job: How Democrats gave us Crime, Sanctuary Cities, Abortion, Profiteering and Racial Division." I guess just to name a few things. Beckel, did you give the country all of those things?


SMERCONISH: Hey, let's begin by talking about the debate. It was really the Cruz and Trump show and then everybody else. Did you, Mr. Beckel, see signs of anyone emerging from that establishment class?

BECKEL: No. I don't think much changed that night except that about this - in this regard, that Trump got to be a better debater.

SMERCONISH: He did. Didn't he.


SMERCONISH: You've got to give him some props.

BECKEL: That shows you what happens. Right now, when you run presidential campaigns as you're in one, 15th of January, a critically important time to start looking at polls and start robbing votes from other people because most people are settled and then the movement starts, right? They're settled in the polls in December, and then when they really have to make the decision and it gets close, they start to move. You're seeing that in the Bernie Sanders and Hillary Clinton race.

SMERCONISH: Crystal, did you see anyone emerge among the Rubio, Kasich, Christie, Jeb class?

CRYSTAL WRIGHT, BLOOGER, CONVERVATIVEBLACKCHICK.COM: No. I agree with Bob, I think Trump has gotten to be a masterful debater. I think it was really Cruz's night. Cruz owned the night, he stood up to Donald Trump. And I think what we saw is that was a game-changer. I think it really is between Cruz and Trump right now.

This is not the year - look, I'm not the first person to say this. We all know it. It's not the year for the establishment candidate. I think the more John Kasich talks, sadly, the worse he sounds.

SMERCONISH: Oh come on. I thought that Kasich was impressive, I thought that he was substantive. I looked at the television and I said, this is the guy who could give her a run for the money. Doesn't winning factor into the analysis?

WRIGHT: No. But Michael, the problem with Kasich, his position on immigration, his position on Obama care. He expanded Medicaid under Obamacare. He can't get the nomination. I think he would wither under Hillary Clinton? I mean she can just basically say why vote for John when you can vote for me and he represents everything that I'm running on.

SMERCONISH: Nick Gillespie, weigh in on that please.

NICK GILLESPIE, EDITOR-IN-CHIEF, REASON.COM: You know, yes - what I was going to say to follow up, this is the year to run against the establishment which is also the main reason why Bernie Sanders who in his own way is as every bit as insane and bizarre and out of the mainstream as Donald Trump or Ted Cruz. In terms of he leans extreme to the left. His views on economics are completely out of step with most people in the American mainstream.

But this is the year to be against the establishment, and that's the main takeaway from the GOP debate is that people like Kasich, people like Christie and people like Jeb Bush really did not achieve any kind of velocity, any kind of momentum.

I think on the other side, on the democratic side, this is part of what we're seeing, which is Hillary is tanking again. She's a very unlikable candidate to begin with. And then she, more than any other candidate in this entire race, democrat, Republican, libertarian, green party, you name it, is the establishment. I think she's really up a creek here.

SMERCONISH: You want to respond.

BECKEL: Yes. Let me say one thing. There will be an establishment, "establishment candidate" who will get a ticket out of Iowa and go to New Hampshire. The question is who is that going to be? My guess right now is it's probably Rubio. At least one, maybe two. But probably one gets the ticket out. Yes, you'll have Trump and Cruz. That's fairly obvious. But the question is who is number three? That's probably what they're fighting about.

SMERCONISH: Let me show you some Iowa numbers. In fact, we'll start with the Republicans if that's OK because we've been talking about Republicans. My source here is the 538 blog, it's Nate Silver. On the GOP side of the equation, it's Trump at 27, Cruz at 26. They're within the margin of error.


Yet, I really respect Nate Silver's analysis when he then says well, here are my odds on whether they win, Cruz is all the sudden a 51 percent chance. I don't know if the three of you remember - I'll bet you do - Silver drove people crazy in the last cycle because even though Romney and Obama were running neck and neck, Silver was saying it's a 90 percent lock that Obama wins. How do you, Mr. Beckel, see Iowa for the Republicans?

BECKEL: Well, I was out there and I see Cruz as somebody who is organized with intense support in the western part of the state, which is the evangelical part of Iowa. They work hard, they go door to door. What I didn't see was a lot of Trump organization. Now, it may be that Trump once again defies gravity and people go to these caucuses who have not been there before, many of them and they'll stick with them. I don't know the answer to that. Rubio has got some organization. But Trump is late in the game with that.

SMERCONISH: You know, Crystal, he makes a point that if you look at the potential voters in Iowa, Trump leads the polls. But when you look at those most likely to come out and invest two or three hours on a cold night, all of a sudden it's Cruz who is in the lead.

WRIGHT: I think Cruz can very well pull Iowa off because we know that there's a lot of concern whether Trump supporters will actually go out in these primaries and caucuses and vote for him. They like him, they show up at the rallies, but will they vote for him? I still think this election cycle is flummoxing everybody because the predictions are not prevailing.

So I would say that Nate Silver and all the pollsters out there we don't know what's going to happen until the fat lady sings in Iowa. So Trump can still pull it off. I think we've all learned that from this cycle.

SMERCONISH: Nick, I want to show you now the (INAUDIBLE) you made reference to Hillary and Bernie. So take a look at this again, 538 blog. This is in Iowa. Clinton 47, Sanders 41, relatively close. Yet, look at Nate's odds. He gives Hillary an 82 percent chance of being victorious in Iowa. Your reaction?

GILLESPIE: I think that's probably accurate because Iowa is two things. One it's ideology and it's religion, particularly on the Republican side. And then a s everybody has been talking about, it's organization. Hillary knows how to win and lose in Iowa. She knows how to put together a ground game and she's not going to make the same mistake that she made in 2008. But it's probably immaterial because this is the other thing that we need to think about. The elections and the primaries and the discourse on both sides so far have pulled each of the parties to their extreme wings, and as a result what happens in Iowa and even what happens in New Hampshire I think is going to be less indicative of what goes forward as you get to states past South Carolina that are actually more representative.

When you look at Iowa, when you look at New Hampshire, when you look at South Carolina, geographically, demographically diverse and not particularly reflective of anything that most people care about.

WRIGHT: Well, I think Nate is right about Iowa because look who Iowa picked in the 12 cycle, Santorum. Hello. I don't think Iowa necessarily pick the person who is ultimately going to get the nomination. I mean it's really, you know, this thing is going to be super Tuesday and much longer. It's going to be a dragged out.

SMERCONISH: Bob, is Hillary in trouble? I've got tons of data here today. I hope you're appreciating my Powerpoint.


SMERCONISH: Because I'm going to put another one -

BECKEL: I'm learning a little bit here.

SMERCONISH: Put one on the screen which shows you her national lead in '08, if we can put that up, versus 2016. The bottom line is she's losing more ground in this cycle at a more rapid pace than was the case back in 2008. There it is. Take a look at that. You want to be on the ascent is the bottom line, and she is not.

BECKEL: That's right. But let's keep this in mind. Hillary Clinton is not a likable candidate. We know that. That's because she's been on the defensive for 25 years. Not necessarily her fault. But the other thing that happened and we have to factor in some of these late polls, she came out with Bernie Sanders on single pair health care which among the liberals and me, is (INAUDIBLE) we loved it. She came out against it, against Sanders' position on it. All of a sudden you start to see real hard core liberals who do vote in Iowa begin to turn.

SMERCONISH: Bob Beckel, Nick Gillespie and Crystal Wright. Wish we have more time but when we come back, we've got to get to some important breaking news that people are going to want to hear.


[09:33:03] ANNOUNCER: This is CNN breaking news.

SMERCONISH: Breaking news. This just in to CNN: The Iran judiciary has announced the release of four U.S. prisoners, including "Washington Post" reporter Jason Rezaian, as part of a prisoner swap deal, according to Iran's semi-official Fars News Agency, quoting Tehran's prosecutor. More on this story as it develops. Now, is Ted Cruz an American and legal presidential candidate, or

isn't he? Cruz's nationality was the hot topic at the GOP debate.


SEN. TED CRUZ (R-TX), PRESIDENTIAL CANDIDATE: Now, since September the Constitution hasn't changed. But the poll numbers have.

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: But the Democrats are going to bring a lawsuit. You have to have certainty. You can't have a question. I can agree with you or not, but you can't have a question over your head.


SMERCONISH: Donald Trump said Democrats are going to bring a lawsuit.

Well, joining me now is one of those Democrats who's been pushing for this case to be heard, a U.S. congressman who is also running for Marco Rubio's Senate seat. I speak of Congressman Alan Grayson of Florida. He's also a lawyer who clerked for Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg.

Thanks for being here, Congressman. What is your plan?

REP. ALAN GRAYSON (D), FLORIDA: Well, the plan is very simple. It's to make sure that the Constitution is vindicated. I took an oath of office to uphold the Constitution three times and to me, it's a serious matter.

The Constitution says what it means and means what it says. It says only natural born citizens who are 35 years can serve as president. If Mark Zuckerberg is running for president, I'd be making exactly the same point.

Ted Cruz is not qualified to be president, not eligible for president because he was born in Canada. And that's the end of the story.

SMERCONISH: Do you intend to challenge his eligibility now, or to wait and see if he's the Republican nominee?

GRAYSON: Wait and see.

SMERCONISH: Why? If you have standing the do it when he's the nominee, then you presumably you'd standing to do it now.

[09:35:02] So, why not get to it?

GRAYSON: Because anybody can run for Congress -- or the presidency. Anybody can do it. It's the question of whether you can serve and whether you can be elected to the office.

It's premature to raise the issue now potentially in my opinion. I mean, one could do it and ask for declaratory judgment. He could do it. But the fact remains that it's not so much the running that offends the Constitution. It's the serving. SMERCONISH: OK. But to play devil's advocate, if your real objective

is not a political objective, but rather you want to make sure someone who's elected president is eligible to serve in that position, then why not do it sooner than later? Because wouldn't this create upheaval for the country if suddenly the Republican or a Democratic nominee, any major nominee, suddenly had an issue on this matter?

GRAYSON: It's not sudden. I mean, it's no secret that he was born in Canada. We've known that for years. He certainly has known he was born in Canada for pretty much his whole life.

So, it's not suddenly jumping out of the shadows. What I wouldn't want to do is file a lawsuit and have it dismissed as premature.

SMERCONISH: I want to show you something from the Harvard Law Review. Neal Katyal and Paul Clement, both solicitors general. They came to this conclusion, "Despite a happenstance of a birth across the border, there's no question that Senator Cruz has been a citizen from birth and thus a natural born citizen within the meaning of the Constitution."

Congressman Grayson, without making our eyes glaze over, how did they get it wrong in their analysis?

GRAYSON: Well, first of all, they didn't consider the fact that at the time the Constitution was written, at that time, heritage and citizenship passed from your father, not your mother. Cruz is claiming citizenship based upon his mother.

Secondly, they failed to address that Cruz's mother evidently was a Canadian citizen. So, he can hardly claim citizenship from a mother who was Canadian. She was a registered voter in Alberta. You don't get to be a registered voter in Alberta unless you were a Canadian citizen, and they completely failed to address that situation in all, in part because they didn't know about it. That's something that became known in the past few days.

SMERCONISH: Congressman, thank you for being here. I've got to move on. We've got important breaking news.

GRAYSON: Thanks.

SMERCONISH: Now, back to that breaking news about Iran releasing four U.S. prisoners including "Washington Post" reporter Jason Rezaian as part of a prisoner swap deal.

Going now to CNN's investigative correspondent Chris Frates -- Chris.

Do we have Thomas?

THOMAS ERDBRINK, TEHRAN BUREAU CHIEF, NEW YORK TIMES (via telephone): Sure. Thomas is here.

SMERCONISH: Sorry about that. Go ahead, please.

ERDBRINK: This is Thomas Erdbrink, "The New York Times" bureau chief. So, Jason Rezaian, probably Amir Hekmati, the famous U.S. marine that's been arrested here in 2012, at least the judiciary has announced that four Iranian Americans that had been in prison here have been released under a sort of prisoner swap deal with the United States.

They have not released any names, but it seems that "Washington Post" correspondent Jason Rezaian is one of them and very also possibly a U.S. marine who has been here in prison since 2012. Now, the release of these two people and the two others whose names we don't know is extremely significant because a lot of observers were following the nuclear case were curious and interested why this was not a part of the deal.

It turns out that in the final hours -- before the implementation of the nuclear deal in Vienna, these four Iranian Americans had been released. I'm pretty sure in the coming minutes we will also know the names of the other two.

SMERCONISH: Thomas, this has been an active week relative to relations between the U.S. and Iran, of course contemporaneous with President Obama speaking to the United States through the State of the Union Address, there were ten sailors briefly held by the Iranians. One question I wonder relative to Jason Rezaian is whether there was more of a global conversation earlier in the week.

ERDBRINK: Well, of course, I have no knowledge of that because I cannot exactly follow what happens in the diplomatic traffic between Iran and the United States. But we have certainly seen a very active week.

It seems as if many events have let up to this day, the important day, the day of the implementation of the nuclear deal, the day in which sanctions against Iran will be lifted and it seems with the release of these four Iranian-Americans, both the Iranians and the Americans have wanted to sort of start off with a clean slate when the sanctions are lifted, and also solve this outstanding issue.

[09:40:00] SMERCONISH: It also raises for me the question of why this release didn't happen sooner, contemporaneous with the announcement of the deal with the Iranians on the basis that it sure would have spared the White House a black eye politically here at home, domestically. There was a lot of criticism, as you know, lodged by the Republicans against the Obama administration and Secretary Kerry in particular, people wanting to know -- well, how could you negotiate this deal without first protecting that reporter from "The Washington Post" and others.

ERDBRINK: Well, as it seems now, it seems that Mr. Rezaian and also Mr. Hekmati, the marine, have been part of the conversation all along as Secretary of State John Kerry has been telling reporters. It also seems the Iranians have really hardball over this.

And we mustn't forget, Iran also has their own demand regarding this prisoner swap. They say they have ten or maybe more Iranian nationals stuck in American prisons. I'm pretty sure that we'll hear that some of those have been released by the United States. SMERCONISH: Thomas Erdbrink, the Tehran bureau chief for "The New

York Times", I apologize for misidentified you initially. Thank you so much for the report.

We will come back with more breaking news on this story.


SMERCONISH: Now back to the breaking news about Iran releasing four U.S. prisoners, including "Washington Post" reporter Jason Rezaian, as part of a prisoner swap deal.

Now, we're going to CNN's investigative correspondent Chris Frates.

[09:45:02] Chris, what do you know?

CHRIS FRATES, CNN INVESTIGATIVE CORRESPONDENT: This is really big news. Jason Rezaian, of course, is "The Washington Post" reporter who's been in prison for over 500 days in one of Iran's most notorious prisons.

And what we're learning is there's been an agreement between the U.S. and Iran to swap seven Iranians who are held here in United States prisons for the four Americans, including Jason Rezaian who are being detained in Iran. This will be really big news.

As you remember, President Obama when he did the nuclear deal with Iran was criticized for not bringing those Americans home as part of that deal. Secretary of State John Kerry always said they were continuing to work with Iran to bring those Americans home. So this will be a big victory for Obama administration on the heels of the Iran deal which looks like it will be implemented in a matter of days.

SMERCONISH: Chris, we're winding the clock and thinking about the fact that Tuesday night was the State of the Union Address. And as of the time the president spoke to Congress. In fact, I can remember we debated this on CNN that night, should he say something about the ten sailors who are still being held by Iranians. There was a difference of opinion. Some of the Republicans, including Senator Cruz, were critical of President Obama for not making reference to the ten sailors.

But now, these things don't happen in a vacuum. This didn't just happen today. It's now clear that the president was juggling this transaction at a time when all of a sudden, he also had the ten sailors being held by the Iranians. It had to be a global conversation to resolve all these items before the commencement of the so-called Iranian nuclear deal.

FRATES: So, I think you're absolutely right. I think the administration hinted about that when they talked about why and defended their decision not to put the sailors who have been detained by Iran into the State of the Union speech even after getting heat, particularly from the Republicans on the campaign trail. They explained it and said, you know, we have good relations with Iran, because we've been talking to them to get this deal, I think that bared out in why they were quickly released. Of course, Republicans said they should have never been detained in the first place and that shows that President Obama is weak.

I think what we'll hear from the White House today that the diplomacy that the president had set out to win has been a big victory for the president here because he's bringing home four Americans detained in Iran. The sailors who were detained by Iran were released within 14 hours, those ten sailors. No international incident happening there. It looks like we're very close to implementing the Iran nuclear deal with Iran holding up its end of the bargain to shut down some of its nuclear processing capabilities, and those sanctions being lifted from Iran which they want as well.

So, this is certainly going to play politically I think on the campaign trail as Republicans, you know, continue to try to say Obama is weak. The administration is going to hit back and say, look, these are three really big victories, and they're all done through diplomacy, not through force, and that has been our plan all along, Michael.

SMERCONISH: To your point, the photograph of the U.S. sailors with their hands in the air and them being on their knees became a flash point this week for the political conversation relative to 2016; Republicans saying what an embarrassment. In fact, it occurs to me Ted Cruz's first response in the debate, regardless of what the question was, he went out of his way to say that it was an appalling scene to see those sailors on their knees.

And I think you're correct, Chris, in saying the White House will be more emboldened to say, diplomacy worked, at least it's worked in three instances that you just made reference to with regard to Iranians. I'm not sure what the GOP response will be because this is good news.

FRATES: This is very good news. I think the GOP will continue -- because remember, even after the Iranians released the ten Navy sailors, Republicans continued to say, well, it showed that we were weak. They allowed, you know, the Iranians to get pictures of the sailors on their knees with guns pointed at them, with their hands behind their head. Donald Trump saying that's humiliating --


FRATES: -- and America should not be put in that situation. I think what the president is going to say is that's why you need somebody who is stable and who is calm under these circumstances, because that could have been a situation that escalated very, very quickly, and administration officials last week were making the case that in prior times, it may have escalated and those sailors may have been held for much, much longer as the brinksmanship continued.

But because we had relationships with the Iranians, because we had channels, it wasn't as if Secretary of State John Kerry had to call the Swiss, the Swiss called the Iranians, which is the way things worked before we got into the nuclear talks. That creates a lot more time for these things to be worked out. The secretary of state could pick up the phone, could talk to the foreign minister in Iran and they could sort these things out.

[09:50:02] The White House says this makes things much more stable. Now, of course, they point out and they pointed out pretty regularly last week that there's still ample reason I think Josh Earnest, the press secretary, said to distrust Iran. So, it's not as if we're the best of friends now with Iran but we do have a working relationship.

And there is a very much "trust but verify" relationship. We are seeing that with the Iran nuclear deal. And now, we are seeing that there is openings for some of these other issues to work out.

But also, important to point out here, Michael, that, you know, Josh Earnest said, we may be lifting sanctions on the nuclear end of things. We still reserve the right as the United States so sanction them for things like the ballistic missiles program that Iran has.

So, these things, it is still very tense, but you are seeing at least a working relationship between these two countries as they sort out very sensitive issues that are going to play very much politically I think for the next couple of weeks.

SMERCONISH: Chris Frates, great job. Thanks so much for the analysis.

FRATES: Thank you.

SMERCONISH: I want to go now to CNN senior international correspondent, Fred Pleitgen. He's in Germany and recently in Iran.

Fred, your reaction and the reaction from overseas to this breaking story?

FREDERIK PLEITGEN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Well, it is certainly something that many people here in Europe would be welcoming as well. But I do have, Michael, some interesting new news that just came in through the Fars News Agency.

They are quoting the Tehran prosecutor that put out the statement saying that these four Americans had to be released. I want to really quickly read this translation to you. It says, "Based on an approval of the Supreme National Security Council, of course, the security council of Iran, and the general interest of Islamic Republic, four Iranian prisoners with dual nationality were freed within the framework of a prisoner swap deal."

Now, that names three of them. It says Jason Rezaian, Amir Hekmati, who, of course, has been in Iranian detention for four years, former U.S. marine who went on holiday in Iran and was then detained, and then the other one named is Saeed Abedini, an American pastor that went to Iran and was detained. A fourth individual that it does not name.

Of course, one of the recent cases that we have has been Siamak Namazi, who's an American Iranian businessman who was detained in Iran late last year. There was a lot of uproar. It happened during the Vienna talks around the Syria crisis which involved the Iranians as well.

So, at this point in time, the news agency naming three of the Americans who are now released. In the case of Amir Hekmati, four years in Iranian detention, and then, of course, Jason Rezaian. That being the big name on that list. There is certainly going to be a lot of people saying that it is diplomacy that has won out on this day, as Secretary State Kerry met with the Iranian foreign minister. They're in Vienna on the signing or the implementation of that nuclear agreement, Michael.

SMERCONISH: Hey, Frederik, pardon my naivety. What does that mean to be a semi-official news agency?

PLEITGEN: Well, it's actually a very good question. A semi-official news agency in Iran would be a news agency that is not necessarily owned by the government or necessarily officially run. One in Iran is would be called IRNA, but that hat is certainly close to the rulers of Iran.

In this case, the Fars News Agency is usually more the clerics. It would be more the position of the supreme leader and the military, for instance, the Revolutionary Guard. They are not necessarily publicly owned or owned by the government, but they very much trod the government's line. And they certainly get a lot of inside information from government sources, usually a lot quicker, especially the Fars News Agency.

It takes a little bit longer. You can say if the official one puts it out, it is an official Iranian stays. Fars news, not completely official but close to official sources within Iran's clergy, which is very, very powerful in that country as well as the military circles which also wield a lot of power, Michael.

SMERCONISH: Frederik Pleitgen, our senior international correspondent, thank for an excellent report.

Back with more on this breaking news in just a moment.


[09:58:08] SMERCONISH: Now, back to the breaking news about Iran releasing four U.S. prisoners including "Washington Post" reporter, Jason Rezaian, Marine Amir Mirza Hekmati, Pastor Saeed Abedin, as part of a prisoner swap deal.

Back now to CNN senior international correspondent Frederik Pleitgen.

Fred, do we know what the United States is giving, if anything, as their side of this transaction?

PLEITGEN: Well, all that we've heard, Michael, was from the official IRNA news agency, which is the one that is actually directly operated by Iranian government. And what they are talking about seven Iranian nationals that are apparently being released by the United States in return for these four United States dual nationals. However, whether or not that number is completely something that we

can confirm, there are other news agencies in Iran that are speaking about six dual U.S. Iranian nationals that the U.S. would free. So, there are still some points that need to be cleared. However, the prosecutor, the Tehran prosecutor is speaking directly about a prisoner swap, is talking about four dual U.S. Iranian citizens being swapped for six or seven dual American/Iranian citizens between these two countries.

So, certainly, the U.S. is, indeed, giving something in return as well.

SMERCONISH: And finally, any idea as to timetable?

PLEITGEN: Yes, that's a very good question. It is completely unclear at this point in time. One of the things we have to keep in mind when we deal with the Iranian judiciary is there usually isn't very much information. The Jason Rezaian trial, as it was going on. I think Jason Rezaian was able to meet with his lawyer two or three times during the entire time he was on trial e wasn't clear for a lot of the time what he was being accused of. We don't know. I am assuming if he is released, it will be pretty quickly he will be out of the country.

SMERCONISH: Frederik Pleitgen, thank you for your report from Germany. More CNN coverage of this breaking news right now.