Return to Transcripts main page

SMERCONISH

Will Wisconsin Be A Game Changer?; 2016 Race: A Criminal Act?; Heroin Epidemic: A Radical Fix. Aired 9-10a ET

Aired April 2, 2016 - 09:00   ET

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


(MUSIC PLAYING)

[09:00:10] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish. I think we just reached a turning point for Donald Trump and the entire 2016 race.

This altercation between Trump's campaign and a reporter kicked off a bad week for the GOP frontrunner and Tuesday the Wisconsin primary could be Trump's waterloo is he is plummeting in the polls.

John Kasich is here to talk about his battle to endure until the convention. While Bernie Sanders continues his surge leading in Wisconsin and landing a record of 44 million in donations in March.

Plus a big surprise issue of 2016. The national heroin epidemic. I'll talk to one young mayor about his city's controversial plan to create legal injection sites.

First, I have often predicted the political demise of Donald Trump. This time I might be right. He just ended political hell week. His campaign manager was arrested for misdemeanor battery, he flip-flopped on abortion, said some controversial things about nukes. Now Wisconsin votes on Tuesday where polls have him trailing Ted Cruz by 10 points. But most problematic for Trump, among women, his disapproval is abysmal.

A CNN poll recently found that 73 percent of women disapprove of the GOP frontrunner. After Wisconsin the next big prizes are New York on April 19 and Pennsylvania on April 26th. Yes, recent polls show Trump leading his home state by a large margin but in a close race with John Kasich in Pennsylvania and here is the unpleasant truth for Trump. Both states have rules that put power in the hands of the party, which is not a good thing for Mr. Trump.

In New York, a change last year by the Republican state committee allows the party, not the candidates to select delegates. The new process is intended to reward long-time party loyalists who might not be Trump supporters, and in Pennsylvania most delegates are elected by voters without any indication of who they support. With no requirement that they follow the will of the electorate.

In other words, at a time when Donald Trump was hoping to seal the deal. He has instead hit a rough patch and is about to enter a phase where the GOP establishment could further diminish his prospect. If he doesn't arrive in Cleveland with the 1,237 delegates required, I don't think he leaves town with the nomination, which is why Tuesday is such an important vote.

Joining me now is the host of "CNN's Inside Politics" John King. OK. John, what happens if Donald Trump loses Wisconsin?

JOHN KING, CNN HOST, "INSIDE POLITICS": Well, that would give the stop Trump forces a big win because Wisconsin, Michael, stands alone. Let's look at where Donald Trump in first place 739 delegates, by our estimates. Ted Cruz a distant second at 460. Rubio still third. Kasich is in the race and he's fourth right now.

So let's just look at Wisconsin. Donald Trump spending the weekend there maybe can turn the tide and get the state back. If he does that, the stop Trump movement is going to lose its steam because so much time and money has been spent against Trump out there.

Let's assume we had two polls now showing Ted Cruz with a 10-point lead. Let's assume that's correct. If you win statewide by 10 points, you're not only getting the statewide delegates but you're probably winning most of the congressional districts.

So let's assume that Cruz wins them all, that's 42 maybe, he only gets 36 or 30 something. But let's assume for the sake of the argument that Cruz gets most of them, maybe Kasich will get the rest. We'll give them all to Cruz. What happens? Trump stays static and Cruz starts to inch up. Does that mean Trump is done? No, it means he suffered a big loss in a big midwestern battle ground and it will change the conversation, Michael, as we head to what Donald Trump, just like Hillary Clinton, hopes is the fire wall home in New York.

SMERCONISH: But it doesn't sound like you're saying hey, he can't get to 1,237 if he loses Wisconsin.

KING: No, but it would be a huge challenge. Let's assume he gets shutout in Wisconsin and only gets a handful of delegates. Then we move on to New York. Here is one scenario. The polls right now, there have only been a couple but there's one poll out that shows Donald Trump above 50 percent. We'll see if we get newer polling. We'll see if a Ted Cruz victory in Wisconsin changes that. If Trump stays above 50 percent in New York, that would be all 95 of the delegates in New York and that would make the pain of Wisconsin go away a little quicker because if Donald Trump even he gets shutout in Wisconsin, if he can win them all in New York, then he's out here again - he's at 834.

He's on his way and Michael, if he gets that he needs 53 percent of the delegates. Is that easy to do? Absolutely not. But is it conceivable? It is. Because you have some big states and some winner take all states coming. So if Donald Trump can get them all in New York, it would make the pain of Wisconsin go away but that's the big question.

[09:05:00] Let me give you another scenario. Let's assume that Cruz wins Wisconsin and out of that he gets momentum and Trump falls under 50 percent in New York. Let's say Trump still wins but with only 45 percent. Then he is splitting the delegates. So maybe John Kasich comes in second and Ted Cruz comes in third but they take away at least half of the delegates. That's where it gets fascinating because then Trump is still in the lead but if he doesn't get all 95, if he just splits them, instead of 53 percent of the remaining delegates, now he would need 60 percent of the remaining, even inside the Trump campaign - they would say, yes, it's doable but it's very difficult and in the Stop Trump Movement, if they Donald Trump from winner take all in New York and they beat him in Wisconsin, they think they got him. They think if that happens, they are going to an open convention.

SMERCONISH: I keep saying this but it really sounds as if we're about to enter the most fascinating part of the entire race. Hey, John, thank you and tomorrow morning a special one hour edition of "Inside Politics," we appreciate it.

KING: Thank you.

SMERCONISH: Now, the Wisconsin primary looms large for my next guest, Ohio Governor John Kasich, he needs to do well there. On one hand polls have him the only of the three GOP candidates beating Hillary Clinton. But he's also won only one state and some are saying he actually helps Trump by staying in the race. Others including Karl Rove are now suggesting that the convention may need to nominate an all together new candidate. John Kasich joins me now.

Is this the week the Trump campaign jumped the shark?

GOV. JOHN KASICH (R-OH), PRESIDENTIAL CANDIDATE: Well, there's no way I'm going to predict that. I just know there was things said this week that not just the abortion but using nuclear weapons in Europe and loose talk about it in the Middle East and withdrawing from NATO. These are things that show that Mr. Trump is unprepared. I do understand that Trump voters concerns about their economic future and their children's.

SMERCONISH: He caught a lot of flak for what he said about abortion and he flip flapped but wasn't he correct in the first go round? In other words, if a person, I'll take him at face value, why not?

KASICH: No, I just don't - I don't. Because I don't agree with that. I've said it. I don't think it's appropriate.

SMERCONISH: But you believe Roe versus Wade, correct me if I'm wrong should not be -

KASICH: Michael. I know. Yes, I told you what I think about it. I think it was inappropriate, period end of story. Let's move on.

SMERCONISH: OK. I'm going to move on but you got to give me one more crack at this because I want to hear the answer. If in fact abortion should be illegal then shouldn't it follow that there's punishment for people involved in that process?

KASICH: Well, look, pro-life and the pro-choice movement said that that's where you look at clinics or whatever but you don't lay this on women. It's a tough enough situation for them, end of story.

SMERCONISH: Governor, callers to my radio program when they talk about John Kasich, your ears ought to ring. They use words like substance, they use words like civility but then they say how is he going to win? What's the answer to that question?

KASICH: Well, look, we'll go to an open convention, no question. I don't have - I can't win enough to get to the convention with enough delegates and neither can Cruz. He would have to win 90 percent of the remaining delegates and Donald Trump would have to win probably better than 60 percent and you should know, he's never got anywhere close to that. So we're going to go to a convention and when we go, there's going to be two things that are going to be asked.

Number one, who can win in the fall and I'm the only candidate that consistently beats Hillary Clinton in the fall. And secondly, Michael, delegates take this seriously, they begin to feel the weight of big decisions on their shoulders and they're going to ask who has the record, who has the accomplishments and who can be president.

SMERCONISH: I don't think Trump can get to one, two, three, seven. Therefore, this is what John Kasich believes?

KASICH: Yes, I do, Michael and I have to tell you, people that think delegates are going to walk out and this is really an ugly process, they don't understand the process. Who are the delegates going to be? They're going to be legislators or former legislators, or people who worked in the vineyards for the Republican Party for a very long time. We'll be fine in Cleveland.

I tell you our kids are going to get an education about how does somebody get elected president? How does the whole system work and for all of us who wanted better civic education for our kids, they are about to get it.

SMERCONISH: Governor, do you believe that fairness demands, it be one of the three of you - if no one arrives in Cleveland with 1,237, should it be one of the three of you who leaves with the nomination?

KASICH: Well, since I'm one of the three, I'd say yes but ultimately, that's a choice, that's a choice the delegates will make.

SMERCONISH: Veteran GOP dirty trickster Roger Stone, I'm sure you remember Roger said this week in "GQ" that - I'm paraphrasing but he said when John Kasich said he has no interest in being vice president that is a declaration of interest. You would say what?

KASICH: I'm not going to be anybody's vice president, Michael, don't worry about it.

[09:10:00]

SMERCONISH: So if Ted Cruz should call and say "hey, gov, let's put it together and take down Trump."

KASICH: Michael, Michael, Michael, I'm running for president. I'm not going to be anybody's vice president. I will go back. I will finish my term as governor.

At that point I'll enter the private sector and be a citizen so I can then complain about all the politicians.

SMERCONISH: All right. Governor -

KASICH: I just made the cameraman laugh.

SMERCONISH: Hey governor, good to see you and best of luck.

KASICH: Thank you, Michael. God bless you. It's always good to be with you. I appreciate it very much.

SMERCONISH: Thanks for saying that. Thank you.

All right. So Governor Kasich he just said that he's got faith in the delegates because they tend to be what did he say, long-term party loyalist who take their duties seriously. So meet a Republican National Committee woman and GOP delegate who someone who was a delegate four years ago and hopes to be again.

Dianna Orrock is a GOP state committee woman from the great state of Nevada. She is a Trump supporter. Tom Ellis is running to be a delegate in the swing county of my home state of Pennsylvania. Diana, you just heard John Kasich say and I agree with this, that Donald Trump is not getting to one, two, three, seven before Cleveland. First, do you agree with that and second, do you see any scenario where on a second ballot, third ballot, fourth ballot, Trump can close the deal?

DIANA ORROCK, RNC COMMITTEE WOMAN FOR NEVADA: I think Donald Trump could probably close the deal. It's a very realistic possibility that he won't have the 1237 going into the convention, but that's OK.

SMERCONISH: OK. But you are one of 112 committee people for the RNC, you're the only one who is for Donald Trump and I'm unaware of a single state chairperson who is for Trump. That doesn't bode well for him, pardon me, that he's going to have support gathered around him at the convention.

ORROCK: Well, a lot of the state party chairs would prefer to remain neutral going into the convention and that's done for very good reasons. You know, we have several candidates that are running. And I'm just the kind of person who likes to let people know where I stand and I'm proud to be endorsing Donald Trump for 2016.

SMERCONISH: Tom, you were a delegate four years ago, you are running for delegate right now in my home county of Montgomery County, P.A., which is a swing area and I just explained briefly that we have a very unusual system in Pennsylvania where you could be elected delegate as you were in the past, but not be bound by the vote in your own county. How would you approach your responsibility? TOM ELLIS, PA GOP DELEGATE CANDIDATE: Well, first of all, welcome

back to the Republican Party, Michael. We're glad to have you back.

SMERCONISH: If only for a short time, if only for a day.

ELLIS: I think we need to have people that can make change from within so I'm glad to have you back and we miss you on the radio in Philadelphia.

Pennsylvania as you said is a different kind of state and people need to know when they go to vote in Pennsylvania there is a beauty contest for president but then they're voting for delegates and the delegates even on the first ballot aren't committed to support whoever wins the general.

SMERCONISH: So what would you do?

ELLIS: Election.

Whoever.

I've already told people that I will support whoever wins my congressional district, 13th congressional district, which is Montgomery County in Philadelphia, because I don't want them to waste their vote. They need to know when they go out to vote that their vote counts that I'll support whoever they want. On the first ballot and when we get to the second ballot and then we get (INAUDIBLE) the best man we get house of cards, open convention and then you never know what can happen.

SMERCONISH: Diana, Tom is a perfect lab experiment for what I think poses an issue for the Trump campaign. Let's assume that Donald Trump wins his country and you just heard him say he would feel obligated to support Donald Trump on the first ballot but thereafter he's looking for a winner and it's John Kasich who runs strongest against Hillary Clinton again, that doesn't bode well for Trump leaving Cleveland with the nomination.

ORROCK: It all depends who you talk to and who you think is going to be the strongest candidate against Hillary Clinton. You know, Donald Trump, his strong point is that he draws popularity and strength from all political persuasions, not just the Republican party, we got independents, we got Democrats, who not only have switched parties to vote for Trump in the caucuses and the primaries, but a lot of those same party people are staying until the party voting for Donald Trump in the general election. So to me, it's a moot point.

[09:15:00>]

SMERCONISH: You heard me say at the outset, both of you, that I suspect, Donald Trump has just jumped the shark and on my Web site, I have this poll question where more than 1,000 people have already voted, 62 percent of them agreeing with me. Tom Ellis, you're a seasoned political hand. Do you think this past week was a milestone for Donald Trump? ELLIS: I think it hurt him but I'm not 100 percent sure. He's come

back - I thought he was finished when he went after John McCain and said he wasn't a hero.

SMERCONISH: Me, too.

ELLIS: You said, you said it. He's following the "Seinfeld" mode, go opposite and he's winning. I'm not sure that's going to be the case. I said to one of your producers and you know, Frank Rizzo, you used to work with Frank Rizzo. He polled always lower than people thought he was going to get and he got a lot more votes because a lot of people said they weren't going to vote for him and ended up doing so.

I was with my fiancee in London on New Year's Eve. A guy there very well to do said, you know, we tell people we're against Donald Trump and we don't believe in what he says but actually we do. So, you know, I discounted Donald Trump a number of times. I originally was with Jeb Bush, then Chris Christie and now I'm waiting to see. There is a lot of people I know that I didn't suspect would be for Donald Trump.

I would never count him out. It's the beer test that you've talked about. Who do you want to have a beer with? I think of all the candidates out there, two Democrats, nobody wants to go have a drink with.

SMERCONISH: Listen to me, hey, I would love to have a couple of pops with Donald Trump but it doesn't mean I'm going to be voting for him. Diana, final question for you.

ELLIS: He'll pay.

SMERCONISH: Here is a scenario I see. He doesn't get to 1237. Now you got a convention full of individuals like Tom who paid their dues to the party that get together, they say Trump has got a negative approval of 73 percent by women he can't beat Hillary. We got to go to somebody else. Diana, respond to that scenario.

ORROCK: Well. If that's a scenario I don't buy into it because 73 percent disapproval by women, I don't know who they are talking to but the rallies that I've gone to for Donald Trump are loaded with women. And as far as the issues, I think Donald Trump could do very well against Hillary Clinton with her corrupt background but anyway, if it's a brokered convention, it's going to be very interesting and the convention is all about the delegates deciding who nominee is going to be -

SMERCONISH: It's all about the delegates, I agree with you.

ORROCK: Let's go for it.

SMERCONISH: You will both be there - thank you both for being here.

ELLIS: Michael, Michael -

SMERCONISH: Yes, real quick. ELLIS: May I say one thing, Pennsylvania favorite son Tom Ridge and

I'm a Penn guy (INAUDIBLE) this weekend.

SMERCONISH: Thank you for that, as well.

If the polls are right both party front runners Hillary Clinton and Donald Trump will lose on Tuesday in Wisconsin's primary. Is the badger state out of touch or a sign of what's to come? I'll talk with a local conservative, a moderate and progressive all from Wisconsin and remember tweet me @smerconish.

Here are a couple that have already come in.

(COMMERCIAL BREAK)

[19:22:40]

SMERCONISH: Wisconsin's primary Tuesday is crucial for both parties and if the polls are to be believed, both of the front runners are losing, Bernie Sanders who has won three states in a row and in the month of March alone raised $44 million, leads Hillary Clinton in Wisconsin, 48-43 in the latest Fox Business poll.

On the Republican side, Ted Cruz is ahead with 42 percent and Trump at 32, Kasich at 19. Part of the upheaval on the Republican side has been due to local Wisconsin radio hosts and newspapers who is seemed determined to make the state a watershed in the Stop Trump movement.

Joining me now two Wisconsin radio hosts and a local alternative weekly editor, Jerry Baiter, is a consecutive at Green Bay's WTAQ, Mitch Henck is a moderate centrist at the MIC in Madison and to round things out, we got John Nichols, a progressive who is associate editor of Madison's Capital Times" and also writes for "The Nation."

Mitch, let me begin with you. If the polls are to be believed, then the two national front runners are going to lose in Wisconsin. You heard me say perhaps at the outset, is Wisconsin a sign of what's to come or an outlier?

MITCH HENCK, WI RADIO HOST, THE MITHC HENCK SHOW, 92.1 FM: It could be an outlier because Trump is way ahead in New York but when Trump said would go after Ted Cruz' wife and spill the beans on her, I felt that it's professional wrestling. I'm a (INAUDIBLE) talk show host and even i winced. Imagine how Republican women in Milwaukee suburbs (INAUDIBLE) felt about that. He's losing women and of course, I think, you have some votes coming from Rubio and Carson going to Cruz, the talk show host in Milwaukee, the conservatives, the governor of Milwaukee, the conservative coalition has sort of found a home in Ted Cruz. That won't be the case in New York where the people of New York values may reject Cruz.

SMERCONISH: John, are Donald Trump and Bernie Sanders competing for the same votes and because of Wisconsin's open system at odds with one another because someone who is voting for Bernie perhaps would be voting for Donald and vice versa. JOHN NICHOLS, ASSOCIATE EDITOR, "THE CAPITAL TIMES" MADISON, WI.:

Well, let's be clear from the start that Donald Trump and Bernie Sanders are at opposite ends of the political spectrum.

[09:25:00]

People shouldn't see the possibility you scope out as some sort of ideological response per se but because Wisconsin has such an open primary and because Wisconsin has been so incredibly battered by de- industrialization, trade policies that have not been good for a state that's seen a GM plant, a Chrysler plant, clothes, ants all over the state closed. So in some of the towns, could you have a situation where somebody might say I'm going to vote for some real alternative here and especially for somebody that talks about trade might vote for Bernie Sanders on one side and might vote for Donald Trump on the other, yes, I think that possibility does exist in some towns.

SMERCONISH: So Jerry Bader, it means therefore that in Wisconsin Donald Trump ought to be this will sound so odd, rooting for Hillary Clinton.

JERRY BADER, WI RADIO HOST, THE JERRY BAER SHOW, WTAQ: Well, yes, I suppose you could say that. You know, I think what you asked earlier, Michael, is Wisconsin an outlier. I think in terms of conservative talk radio, we don't pair at the national guys and that's why Donald Trump ran into what he ran into here in Wisconsin.

I think in terms of going forward, Wisconsin provides the opportunity to take the mask off the charade off the charlatan so what happens here in Wisconsin might be the beginning of the end for Donald Trump and we'll find out.

SMERCONISH: Hey, Jerry, let me show you and the other panellists some numbers. I want to compare February to March and take a look at the growth of Ted Cruz so initially this is February now from Marquette, you got Trump at 30, you got Rubio at 20. Cruz is only at 19. Kasich is at eight. Fast forward one month, interestingly, Trump is still at 30. But Cruz has doubled. Do you attribute that, Jerry Bader, to the strength of the talk radio message against Donald Trump and if so, what's the beef that you all have with Trump?

BADER: Yes, I do and obviously the thinning of the field had a lot to do with that. That 30 percent does tend to be his ceiling. The beef with Donald Trump is he's not real. Let me give you a specific example of this. Here is why he stumbled so horribly with the abortion issue this week. He's not pro-life. He has no idea what the pro-life answer should be. He's very much pro-abortion rights. In his mind, gee, what is the caricature - have I always been told about pro-lifers and it was that extreme caricature that we want to put women in chains who have an abortion. That's Donald Trump issue after issue after issue. He is trying to figure out what a conservative should sound like that's why he blows in the wind and that's why there is no substance there.

That's our beef with him, Michael. Besides his boorish, childish playground behavior, he's not a conservative. SMERCONISH: Mitch, I want to show you something that "Politico" wrote

about another Wisconsin radio host, one well known to you Charlie Sykes, if we can put that on the screen. Because here's what he said in part, "We bear some responsibility because we beat on the main stream media for so long and now there are no credible sources anymore."

That jumped off the page at me. I said to myself, maybe all of the lambasting of the so-called main street media lessened the credibility of those outlets that would otherwise right now be vetting Donald Trump. What do you make of that thought?

HENCK: We had a la carte media for a long time. Liberals have liberal stations, conservatives have conservative stations a networks or papers ever since Ross Perot was on Larry King, we've moved in that direction. Phil Donaghue had candidates on his show. They've gone that way for a long time. I think it's no surprise. I just think it's in fact, we don't have 17 candidates anymore.

The math works against Trump, the Carson and Rubio people are going to Cruz plus he's hurting himself with women. I think you can analyze this case by case. New York would be a different story. We're not so doomed sayers, gloom and doom when we get to New York.

Trump has to fight hard this weekend to stave off Kasich because Kasich may have a path to kind of creep up a little bit. I think with some Republican women and moderates, yes, Tommy Thompson, the former governor, (INAUDIBLE) the former Madison Republican congressman and there are people that call them the polite Republicans who they want an alternative to the mud wrestling tandem.

SMERCONISH: John, final question for you, 18,000 people showed up in the Bronx in New York for Bernie Sanders this week and as we've already explained, he's leading thus far against Secretary Clinton in your home state. All those folks coming out, all those folks giving $44 million in this past month and who will vote for him on Tuesday, they must believe that despite all the media analysis of the delegate count, there is still a path for Bernie. What is it?

NICHOLS: Well, I think that Wisconsin is a critical part of that. That's what obviously the Sanders campaign has said from the start. One thing to understand is that as you talk about both of these campaigns on the Republican side and yhr democratic side, you've obviously got your delegate map up front.

[09:30:05] But also have your momentum math. And I think that's an important thing to think about. Obviously, if Ted Cruz wins big in Wisconsin, if possibly John Kasich comes in second in Wisconsin or at least beats Trump in a number of congressional districts, that gives both of them momentum math even though Donald Trump will still have the delegate advantage.

Similarly, if Sanders wins big in Wisconsin, has a really solid win, then he'll have some of that momentum math going on to New York. The key in all this is that for these candidates who are relying on what I call momentum math, they have to keep winning, and that, of course, is the bigger challenge.

SMERCONISH: I think that's a good insight. I agree with you.

Gentlemen, thank you so much for being here. It's now going to get even more interesting. Jerry Baiter, Mitch Hank and John Nichols, thank you.

Remember, keep tweeting me @Smerconish with your thoughts. I'll read some later in the program.

Just ahead, heroin addiction has been an important topic on the campaign trail. I will talk to a mayor of one hard-hit city ready to try a radical fix, legal injection sites.

And will the criminal charges filed against Donald Trump's campaign manager for this altercation with a reporter stick or be dismissed?

(COMMERCIAL BREAK)

[09:35:41] SMERCONISH: Donald Trump's campaign manager Corey Lewandowski is facing a misdemeanor battery charge in Florida, and by now, everybody has seen the video of the incident of Lewandowski grabbing reporter Michelle Fields as she tried to ask Mr. Trump a question.

Still, the tape has become a Republican Rorschach test. People see in it what they want to see. But how is it going to play in court? And how might the actions be defended?

Joining me now, two sharp legal minds, criminal defense attorneys Mark O'Mara and Danny Cevallos.

Hey, Danny, I want to (INAUDIBLE) the tape. We're going to slowmo it. And while we do, explain what are the elements for this kind of a charge. Roll the tape.

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY/CNN LEGAL ANALYST: OK, remember, Michael, we're looking for an intentional, part one, part two is the touching, and part three, that it was nonconsensual.

There you go, you see her jerk back. You don't see his hand -- at least I don't see his hand on her body, but one might reasonably infer that she was grabbed because she suddenly jerks back. But under the statute and in most states, the standard for criminal battery, simple assault, whatever it's called in your particular state, is a very low threshold. You need that intentional, the touching and the absence of consent.

That's the black letter law, Michael. Now, let's take a step into the practical world of criminal defense. Would most police detectives in your town be interested or prosecutors be interested in wasting judicial resources on a case like this? It really depends on the individual law enforcement unit.

SMERCONISH: Well, Mark O'Mara, I hear , Danny, say that intentional is a required element here. What's the alternative, that he instinctively or reflexively had that kind of reaction?

MARK O'MARA, CRIMINAL DEFENSE ATTORNEY/CNN LEGAL ANALYST: Well, it's not just the intentional act itself, he obviously touched her on the arm. What we have to look at is what's called in our business the mens rea. What is the criminal intent?

So, when I push past you to get on a subway car, that is not a crime under any set of circumstances. So, what he's going to say, what I would say as the criminal defense attorney was, look, I was reacting to the moment. It was a reporter who was trying to say something to my candidate, and my boss who we were trying to get out of there. No intent, no criminal intent towards her.

As a matter of fact, if you look at his face right afterwards, look at the second, half a second after the supposed battery and there's no anger, there's no animosity. There's no scowl. He's literally moved her out of the way and moved on in what he was doing, trying to get Mr. Trump out of there.

This would never be prosecuted if this was on a subway platform or at a baseball game. It's only a focus of attention because of the absurdity of what we're in with the political scene today.

SMERCONISH: OK. But wait a minute, you guys are so good, it's why I carry each of your phone numbers in my wallet in case I ever get jammed up.

But, Danny, isn't the response from the prosecution going to be, take a look several frames thereafter where Mr. Lewandowski continues walking and catches up to Donald Trump. If he really believed that she was a threat, he would have stayed and neutralized that threat. Isn't that going to harm him?

CEVALLOS: I'm going to put on my defense hat for a second and the way that I anticipate them defending this is using something the great Mark O'Mara is very familiar with, is Florida law on defense, self- defense and defense of others. And it only requires that you reasonably perceive some application of force and that you used the amount of force reasonably necessary.

In essence, you're meeting force with commensurate force. You never want to answer somebody's fist with a howitzer or a bazooka. So, the idea is if he perceives her about to touch Mr. Trump, then perhaps Lewandowski saw himself as using reasonable force to counter the perceived force. That may be what we see in terms of self-defense or defense of others.

SMERCONISH: Mark O'Mara, do you agree there's a Zimmermann aspect of this incident?

O'MARA: Here's the problem with that. If you're going to use self- defense and defense of others, you have to acknowledge the act, and the intentionality of the act. So, Lewandowski would have to go in and say, oh, I absolutely did that. I grabbed her by the arm and threw her out of the way, did whatever I needed to do because I was defending Mr. Trump. [09:40:02] Very dangerous ground to be on. I think I would sit back

and say, look, this is a virtual scrum in this arena. This is what we do. We're trying to get Trump out of there. She's throwing out another question like everybody else does, and I wanted to get her out of the way, get Mr. Trump out of the venue.

I would sit back and focus on the lack of criminal intent to begin with and simply saying, this is the way things happen in this scrum that exist in our political arena.

SMERCONISH: Hey, Danny, what I'm hearing Mark say I think is that context matters. I've heard him make repeated reference to where this happens and the raucous nature of these events. I want to ask you a practical question. If Lewandowski, when it was all said and done, whatever it was, apologize and took ownership of it, would we be having this conversation now?

CEVALLOS: Maybe. That depends on this individual reporter and how she perceived the interaction and maybe it's a broader political question, which is a little beyond my personal pay grade. But in a case like this, you know, look, the way we write our criminal statutes in the states, we have such low thresholds.

And Florida's a fantastic example. All you need is intentional, the touching and absence of consent. Florida courts have specifically said, you do not need injury, you do not need harm. One case I read involved a student throwing ravioli at another student and it caused no harm. But yet, that contact, that intentional contact without consent, was enough under the law.

SMERCONISH: Lewandowski right now wondering, which one should I call, O'Mara or Cevallos? Thank you, guys.

CEVALLOS: Call O'Mara.

(LAUGHTER)

SMERCONISH: I appreciate you being here.

O'MARA: Thanks, Dan.

SMERCONISH: Up next, I'm going to talk -- this is not a laughing matter. I'm going to talk to the mayor of a small city hard hit by heroin and a controversial plan to keep addicts alive by allowing them to bring their drug use out into the open. And more tweets @Smerconish like this one.

(COMMERCIAL BREAK)

[09:46:13] SMERCONISH: One of the surprisingly big stories of this election cycle has been the attention paid by politicians to the scourge of heroin addiction. The tragedy knows no class nor racial boundaries. It's been an issue in New Hampshire and Ohio and now in Wisconsin on Tuesday.

Nationally, every year, about 30,000 people die from heroin and opiate overdoses. In Wisconsin, more than 500 addicted babies are born each year. And with New York's primary weeks away, the city of Ithaca is considering a radical proposal to keep addicts safe. They call it supervised injection and it means allowing a safe area for addicts to shoot up -- something that exists nowhere in the United States.

Svante Myrick was elected mayor of Ithaca at age 24. Now, 29, he's the youngest mayor ever in that town, first one of color and he joins me.

Mayor, 20 years ago, I would have laughed at your proposal. I'm not laughing now.

SVANTE MYRICK, MAYOR OF ITHACA, NEW YORK: Yes. I even two years ago this idea would have sounded crazy to me. But it's clear that we have a problem, and it's clear what we've tried hasn't been working. It's clear that the state and federal government are not going to save us. So, we've got to find ideas that have worked in other places and adopt them locally.

SMERCONISH: The arguments that I'm hearing remind me of Narcan. I have an EMT on my radio show, Dan Henning, I'll give him a shoutout, saved somebody's life a week ago with Narcan. And I've heard relative to Narcan, people on one hand say, well, you're perpetuating drug use because you're providing a crutch and others I guess like you say, no, we're saving lives.

MYRICK: That's exactly right. These -- we've had these conversations before about harm reduction, about keeping people healthy and safe. We had them when we opened needle exchanges 25 years ago. And people thought, well, if you provide clean needles, aren't you just encouraging drug use? Well, no. We're saving people's lives by reducing HIV transmission.

And again, when we taught sex ed in schools, you give the condoms. You don't encourage them to have sex, but you make sure that they are safe if they do chose to have sex. It turns out what this does --

(CROSSTALK)

SMERCONISH: I read the coverage --

MYRICK: It is --

SMERCONISH: I'm sorry, I want to make this point.

MYRICK: Sure.

SMERCONISH: I want to say, I've read the coverage of your proposal, and I think the media has gotten it wrong because I also took the time to go to your website and read the proposal. It's comprehensive. This is one component, but it's getting all the headlines.

MYRICK: Yes, I think because it's the most controversial and it's the most innovative. And when you're on the cutting edge of something, you expect there to be controversy. But the plan does say it's not enough to keep addicts alive. We have to surround them with resources. We have to get them medicated treatment, which President Obama's plan which he just announced this week is groundbreaking in doing.

You've got to prevent people from using drugs, too. And you have to give law enforcement new tools to fight this war, things like the LEAD program that was pioneered in Seattle, just recently adopted in Albany and we hope to bring it to Ithaca next year.

SMERCONISH: You're not going to supply the heroin?

MYRICK: No, we don't supply the heroin. But we make sure -- increasingly we're seeing heroin laced with other more powerful drugs that are killing people. In Buffalo just a few miles from us, we had ten deaths in ten days because of fentanyl. When people bring in their own drugs, even if they overdose, we can save their lives. In Vancouver, where they've done this for over 10 years, they had over 2 million injections and not a single overdose death. And, in fact, in a 16-block radius, overdose deaths decreased by 35 percent in the city of Vancouver.

SMERCONISH: Final point, your mayor says, look, I'm not cool with us because it's illegal behavior. The D.A. for the county in which your city is located is applauding you.

[09:50:04] MYRICK: Yes, and this is -- look, because those of us who have seen addition up close understand that we can't solve this problem with sort of logic and sober thinking that we've used in the past. Those of us, children of addicts like myself, those who have faced addiction, understand that you need to meet people where they are and help pull them into the light.

By keeping them in the darkness, keeping people shooting up in alleys and gas station bathrooms, you're only assuring they'll never get better and too many of them will die.

SMERCONISH: Mayor Svante Myrick, I think we're going to remember that name, 20 years old when you were elected to council in your town. Now, you're the mayor. Thanks so much for being here.

MYRICK: Thank you very much for having me.

SMERCONISH: Still to come, your best and worst tweets. Here's one.

(COMMERCIAL BREAK)

[09:55:12] SMERCONISH: You know what I say, you can follow me on Twitter if you can spell Smerconish.

Look at what just come in from Squeek. He says, "Legal injection site? I can't even smoke a joint in Indiana." Pretty good point.

There was also this, "So, Smerconish, you joined the GOP, the party of U.S. Citizen voter restriction. How un-American of you?" I shall be a member for one day, sir. Thank you.

Then, there was this. I love it. "You've had your stinger out for him," I think meaning Donald Trump, "from the start. But I think you're right this time. Agree." Meaning that he has jump the shark.

And, finally from Christa, do we have time? "Some people may want to have a drink with Donald Trump but for us never Trumpsters, he makes us want to have a drink."

I'll see you next week.