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SMERCONISH

Interview with Vice President Joe Biden; Interview with Sean Spicer; Weiner Sexting Probe Leads FBI to Review Clinton Case; Will FOX News Change After Election Day?. Aired 9-10a ET

Aired October 29, 2016 - 09:00   ET

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


[09:00:13] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish. We welcome our viewers across America and around the world.

The October surprise is here, and it came from the head of the FBI. I'm on the road again in St. Louis where I spoke with Vice President Joe Biden, but I never predicted that a required topic would be Carlos Danger.

(BEGIN VIDEO CLIP)

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: Oh, god. Anthony Weiner. I should not comment on Anthony Weiner. I'm not a big fan.

(END VIDEO CLIP)

SMERCONISH: The FBI investigating e-mails apparently from the disgraced congressman's laptop involving Weiner's wife Huma Abedin, top aide to Hillary Clinton.

And Donald Trump is a happy guy.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: What happened today starting with the FBI, maybe the system will become a little less rigged. Beautiful.

(END VIDEO CLIP)

SMERCONISH: Plus, does Megyn Kelly's rift with other FOX anchors signal a split from the network post-election, as well as the Republican Party itself?

Meanwhile with just 10 days to go, the RNC's chief strategist, Sean Spicer, is here, and he's promising to break some Huma Abedin news live on the air.

But first, I have something in common with Vice President Biden, both of our families have Pennsylvania coal cracker roots and I was eager to ask him about why so many working class whites who feel a kinship to Biden are pulling for Donald Trump. It's a sign of how accelerated this news cycle has been that between the time we first arranged my interview and when it actually happened the lead question move from him wanting to fight Donald Trump behind a gym to rumors that Biden would be Hillary Clinton's secretary of state to having to react to the latest e-mail hubbub.

(BEGIN VIDEOTAPE)

SMERCONISH: Thank you for this privilege.

BIDEN: I'm happy to be with you, Michael. Really.

SMERCONISH: You know I have to ask you about FBI Director Comey and this letter.

BIDEN: Yes.

SMERCONISH: He says that new e-mails appear pertinent to the investigation of Secretary Clinton's private servers. How concerned are you about the impact this is going to have on the election?

BIDEN: Look, you know that the FBI works for the administration. I'm not allowed to comment at all. I know nothing about it. I just found out today. I know that Hillary -- I was told Hillary just had a press conference saying release the e-mails. I think the quicker they release the e-mails for the public to see them the better off, and I have confidence in Hillary.

SMERCONISH: You're the former chair of the Senate Judiciary Committee, you're an attorney, Syracuse Law School, smart guy. The language of this perplexes me. He says the FBI cannot yet assess whether or not this material may be significant and I cannot predict how long it will take us to complete this addition work. Did he just put his thumb on the scale? Dianne Feinstein is saying he played right into Donald Trump's hands.

BIDEN: Well, I'm not going to comment. Look, that's the same language he used before --

SMERCONISH: But then why write the letter?

BIDEN: Well, because -- I don't know why. I can't read his mind. But, look, I found him to be a straight guy. He's been -- he's a tough guy. He's a Republican but he has always been straight and I'm confident that, you know, this will -- this will turn out fine.

SMERCONISH: What worries me, Mr. Vice President, is that folks are going to go to the polls or have already gone to the polls, and they don't know what to make of this. They're in the dark.

BIDEN: Well --

SMERCONISH: What should happen now?

BIDEN: I think it's -- I think if Hillary -- if she said what I'm told she said is correct that she released the e-mails for the whole world to see, the whole world to see. They can continue their investigation. It won't -- to the best of my knowledge it won't prejudice the investigation. But that's sort of the stilted language the agency always uses and it doesn't mean anything. And so it's unfortunate. SMERCONISH: I'd be remiss if I didn't note that if she had released

all the e-mails from the get-go, we wouldn't be having this conversation.

BIDEN: Well, that's true. But I don't know where these e-mails came from. What --

SMERCONISH: Apparently Anthony Weiner.

BIDEN: Well, oh God. Anthony Weiner. I should not comment on Anthony Weiner. I'm not a big fan and I wasn't before he got in trouble. So I shouldn't comment on Anthony Weiner.

SMERCONISH: One more question on this. Is this the kind of story that makes Joe Biden say, damn it, I should have run?

BIDEN: Michael, the only reason I didn't run had nothing to do with it. I thought I could beat Hillary. I thought I could beat anybody that ran. No one should run for president unless they think they can do that. I didn't run for one simple overarching reason. My son was dying and he died. That's just the total reason. I mean, I have great respect for Hillary.

[09:05:01] I have great respect for other people who have run, but you don't make a decision based on the other person. I thought that at the time I was this -- the issues the country was facing were right in my wheelhouse. I didn't run not run -- could not run because Hillary was running. I didn't run because my son is not here. Period.

SMERCONISH: If the Americans go to the polls and there's an open question as to whether she's under investigation wouldn't that mean there's an open question as to whether she faces some punishment down the road?

BIDEN: I guess technically, but look, I don't -- I don't -- I can't believe that -- the answer is I just think this is -- these things have been blown out of proportion. Easiest way to do it is just release the e-mails.

SMERCONISH: OK. You don't want to be her secretary of state, I'm told. This is --

BIDEN: No.

SMERCONISH: This was a big issue earlier today. It came up and --

BIDEN: Look, I will do anything she wants if she's elected president to help her, but I'm not looking to be in the administration. It's time for me to move on.

SMERCONISH: Your folks -- your family is from -- you were there until the third grade Scranton.

BIDEN: Yes.

SMERCONISH: Both my parents are from Hazelton. BIDEN: I know Hazelton well.

SMERCONISH: We're both of coal cracker, Pennsylvania stock, right?

BIDEN: That's right.

SMERCONISH: It's Trump country. It would be Biden country if you were in this. So you're not united in policy with Donald Trump.

BIDEN: No.

SMERCONISH: So what's the commonality and why can't she win with those folks?

BIDEN: I think what's happening is that -- I think she's going to end up -- I think we're going to win Scranton. She's going to win. And the reason is that, look, people are upset and angry. They hate the dysfunction of Washington. Trump comes along and talks about how he is going to change all that. He's this new breath of fresh air and then -- and then people started to see who he is and they started to see -- look, in Scranton and Hazelton, if anybody in your household or neighborhood talked about I'm famous, I can go grab a woman anywhere I want, when I want it, you get to live in stuff and knock at them. Your parents would have the end of it. That'd be the end of it.

People are beginning to figure out those same people are the same people who have basic decent values. And I think that's going to trump, no pun intended, their -- their concern about Hillary.

SMERCONISH: What's the message, I mean, 15 million, 14 million I guess literally, voted for him in primary and caucus season? Even if he loses, Mr. Vice President, 65 million Americans or thereabouts will cast a ballot for Donald Trump, they feel forgotten.

BIDEN: I agree.

SMERCONISH: What do you want them to know?

BIDEN: I want them to know that look at what she's going to do, what we're doing. They want -- do you know anybody in Hazelton who want their kids to go to college, even though they never went?

SMERCONISH: Yes. Absolutely.

BIDEN: Do you know anybody who didn't want to have an opportunity to be able to have a decent job and have some dignity behind it? Donald Trump is offering nothing, nothing, zero for those folks and so what they're going to find out is that she's pushing to make sure your kid and Hazelton and Scranton can get to college and can afford to get to college and not be saddled with overwhelming debt. They're going to find out that that single mother who is working has two kids and it costs 12 or 14 grand a year for daycare for those two kids, is going to get help and she'll be able to work and still have her kids taken care of.

The proof of the pudding is going to be in what is actually done in the eating, and -- but it's going to take time. It's going to take time.

SMERCONISH: I'm a butter knife away from a lot of Trump supporters. I'm going to see them at Thanksgiving.

BIDEN: Yes.

SMERCONISH: They don't trust her. This story today with Comey is going to cause them to trust her even less.

BIDEN: They -- a lot of people, it's true, don't trust her. Fewer people trust him. Look at the polls. Fewer people trust him than trust her. And so this is not -- this is not a case where one person is really trusted and the other one isn't, it's a really -- the way this year has developed, the way the campaign has gotten so bitter and so -- but look, Michael, when I first got to the Senate, we had a lot of people in the Senate who I totally disagreed with in my party, the old segregationist, all those folks, but the place functioned. We fought like hell and we settled the differences and we voted.

The Senate is dysfunctional right now. The House is dysfunctional right now. And if you take a look, the only people who are less popular than the presidential candidates are the Congress and they know it. And so I think what's going to happen is I think we're going to win back the Senate. I think the impact of that is going to be it's going to free up the 35 to 40 Republicans who know better.

Look, on the issue of whether or not they would give a hearing to the Supreme Court justice. You know, I've got great relations in the hill, Michael. I mean, that's a presumptuous thing to say. But I think you'll find out guys who holler at me but would go to the wall for me like John McCain and Lindsey Graham and you know. We disagree, but I call a bunch -- I call seven of my colleagues on the Republican side saying, you know, this is wrong not to hold a hearing on the Supreme Court justice.

[09:10:05] They all said, you're right, Joe, I know it's wrong. But, Joe, if I go ahead and move now, Koch brothers are going to come in with $3 million to $5 million, they'll do this. They're being -- we've got a case of the tail wagging the dog.

SMERCONISH: If she wins, should she settle for Judge Garland instead of going for a more progressive pick?

BIDEN: I don't think it's a settling and I think it's what presidents should do when there's a divided Congress and a divided country. And I think she should stick with Garland, but that's going to be her choice.

SMERCONISH: You called him out. It got a lot of attention, the Vegas odds makers want to know what happens if you really do get him behind the gym. Do you regret it?

BIDEN: I was making a point that I think it's insulting say to the guys I grew up with, the athletes who spend like I did a lot of time in locker rooms that we talk like that. This is not locker room talk. And you know as well as I do, Michael, neighborhood you grew up in Bucks County, if somebody in the locker room talked that way and your sister is outside and her friends, you know what you would do. You know what you would do. You would not let it go on.

SMERCONISH: Well, I think --

BIDEN: That was the point I was making.

SMERCONISH: I think I know your inspiration. You remember this?

BIDEN: Oh, I do. Yes.

SMERCONISH: The memoir?

BIDEN: Yes.

SMERCONISH: So here's what you wrote early on in the memoir.

BIDEN: Oh my lord.

SMERCONISH: "The one thing my mother could not stand was meanness. She doesn't have a mean bone in her body. I know she is gone now. And she couldn't stand meanness in anybody else. She once shipped my brother Jim off with instructions to bloody the nose of a kid who was picking on smaller kids and she gave him a dollar when he done it. Religious figures and authority figures got no exemption. They abuse their power, you bloody their nose."

Was that the message you were sending to Donald Trump? You're not going to embellish on that?

BIDEN: No. Look, it's -- look, the thing that my father -- I think I wrote about this as well, my father used to say, and I really mean this, Michael. You know, and you seem to know a little bit about me and my family. It's -- my father said the greatest sin of all was the abuse of power, whether it's economic, political or physical power. And the cardinal sin of all sins was a man to raise his hand to a woman or a child.

I've spent my whole career, my whole career, fighting against violence against women. I wrote that act myself with my own hand. The Violence Against Women Act. I spent time going all over campuses in this country trying to change the culture.

We have to change the culture in the way in which we talk about women and we treat women. It's essential. And it's been something that's been one of the causes of my life. And here is a guy who says, because I am a star, implicit, because I have a lot of money, I can walk out and grope any woman I want. That is a textbook definition of assault. Sexual assault. And it dumbs down -- think how crude this campaign has become.

I have a secretary, a woman. She is more than a secretary, she runs my office. And her name is Kathy. And she has a 6-year-old daughter. I called her on Columbus Day, which was a national holiday, to find out what my schedule was the next morning because there had been a change. I said, did you watch the debate, Kathy? Well, my daughter, sixth grade, had a friend over. They had extra credit. She said I had to get up and turn the TV off.

SMERCONISH: Turn it off. I hear it from listeners.

BIDEN: Can you imagine that?

SMERCONISH: Radio listeners tell it to me all the time.

BIDEN: Imagine that?

SMERCONISH: I'm worried about the 9th. I'm worried about Wednesday.

BIDEN: Well, I am --

SMERCONISH: I hope we can put it all together.

BIDEN: Michael, I'd be lying to you if I told you I wasn't, too. That's why I'm going to stay -- I mean, to the extent that I can be of any help, I'm going to stay involved as much as I possibly can. This is the time, after the 9th, after the election is over, and no matter who wins, reach out, try to put this country back.

SMERCONISH: Including to him, by the way.

BIDEN: Including to him.

SMERCONISH: You'll extend a hand?

BIDEN: If he wins, I'll extend a hand. He would be president of the United States of America. Period. I pray that that doesn't happen. I want that -- I want Hillary to be president, but whomever is the president is president of the United States of America.

SMERCONISH: Thank you, Mr. Vice President. I appreciate your time.

BIDEN: Thank you.

SMERCONISH: Thank you.

BIDEN: Thank you.

(END VIDEOTAPE)

SMERCONISH: Joe Biden would have, could have, should have.

Tweet me @smerconish with your thoughts and I'll read some later in the program.

Up next, the RNC's chief strategist Sean Spicer, there he is. He says he now has a document. Everybody has got a document. His is about Huma Abedin and he thinks it's a game changer.

(COMMERCIAL BREAK)

[09:18:46] SMERCONISH: All it took for the Trump campaign to feel revived was a few paragraphs from the FBI director James Comey. Comey sent a letter to Congress saying that he'd gotten some new e-mails to look at that might relate to the Hillary Clinton investigation. As details emerged throughout yesterday, it became clear that the e-mails came from the Anthony Weiner investigation and related to Weiner's wife Huma Abedin, special assistant to Hillary Clinton. But Clinton's involvement remained unclear and the candidate herself was demanding more transparency.

(BEGIN VIDEO CLIP)

HILLARY CLINTON (D), PRESIDENTIAL CANDIDATE: We don't know the facts which is why we are calling on the FBI to release all the information it has. Even Director Comey noted that this new information may not be significant, so let's get it out.

(END VIDEO CLIP)

SMERCONISH: Now, on top of that, RNC chief strategist and communications director, Sean Spicer, says he has other Huma Abedin news to deliver right here right now. Sean joins me now.

What do you got?

SEAN SPICER, RNC CHIEF STRATEGIST AND COMMUNICATIONS DIRECTOR: Good morning, Michael. First, I just want to comment that it's interesting that the secretary believes that the FBI should get all this information out. The only reason we're in this position we are in the first place is because Hillary Clinton chose to use a secret server and not abide by the regulations set forth by the United States government and the Department of State. So --

(CROSSTALK)

SMERCONISH: Well, let me -- let me say to you --

SPICER: Let's put this in --

[09:20:07] SMERCONISH: Let me say to you and pass it along to, you know, Mr. Trump, I'm doing his bidding here for him because I just said that.

SPICER: Right.

SMERCONISH: To the vice president of the United States, and by the way, Sean, he agreed with me.

SPICER: Right. But let's -- so again, let's put this in context. Hillary Clinton initially said that she had turned over everything that was relevant. The only thing that she didn't were e-mails regarding yoga and Chelsea's wedding. We know that to be false. Further, when Huma Abedin left the State Department as is required of all individuals, they have to file a form called OF-109. That form is a separation agreement that states simply that people understand when leaving government that they are maintaining no classified information, they understand that their legal obligation to protect further classified information and safeguard any potential disclosures of that. This is form OF-109, signed by Huma Abedin in 2013. This is the form

that she signed under penalty of law. So while we don't know entirely what's going on, we do know that Huma Abedin in August of 2013 signed a legal document with the United States government saying that she knew -- she understood that it was her obligation to turn over all classified information and to further safeguard any further information that could be disclosed.

So while we don't know the facts, while we don't know what's going on, we have continued to see a pattern that they tell us everything -- we know everything, that they've disclosed everything and time and time again we find out that that is not the case, that while they tell us that they've turned over everything, we find additional disclosures over and over and over again.

And the big message that people have to understand during this final 10 days of the election is you haven't seen anything yet. For 30 years we've seen these Clintons tell us one thing and play by the rules for themselves. And we're going to -- we continue to see that with Hillary Clinton and her top aides.

SMERCONISH: Where did you get the document?

SPICER: Through a Freedom of Information Act from the Department of State.

SMERCONISH: So as I understand --

(CROSSTALK)

SMERCONISH: Yes, go ahead.

SPICER: Go ahead. No, I was going to say we've been requesting documents over and over again. This was in a batch of ones that we had found and when we saw the disclosure from the FBI director that they were further looking into this, we went back and looked at the documents that we had gotten from the different aides and the different batches that the State Department had given us and lo and behold, we find out that Huma Abedin in 2013 had signed this document saying that she understood that it had been her obligation at that time to turn over all information pertaining to her work to the Department of State.

And we saw, regardless of what the situation is now, we know in 2015 she found further e-mails that she had not turned over. So again this pattern continues that we keep finding out that what they said they did is not true.

SMERCONISH: OK. What I hear you say is that she signed under a perjury of law threat that she had nothing in her possession and seemingly that has been contradicted.

Let me be facetious. I have just decided I'm not going to vote for Huma or for Anthony Weiner. But what about Hillary? Because again, like so much of this, it may be about the orbit, all this Podesta e- mail business, but what does it say about her specifically? SPICER: Well, I think it says a lot. I mean, because it's not just

Huma. I mean, it's Hillary as well. She's the one who told us at the beginning of the scandal that there was nothing more, that they had self-selected all the e-mails and turned them back over to the government and nothing else had to do with her government work. It just had to do with yoga and Chelsea's wedding. We know when it comes to Hillary Clinton herself, that's not true.

We see it with Podesta, we see it with Huma Abedin. They continue to tell us one thing and have a second set of rules for themselves. This pattern of obstruction, of lying continues with the Clintons. And if you -- you haven't -- I mean, look, we've seen it for 30 years, the zebra is not going to change its stripes. This is what we can expect out of a Clinton presidency. One set of rule for them, one set for us, one pattern of telling us one thing, doing another.

SMERCONISH: Hey, Sean --

SPICER: It's happened for 30 years. It's not going to change.

SMERCONISH: On the related I think subject of this Comey letter that was released yesterday, I want to underscore something because I've read it and seen it and heard it mischaracterized in the media. There's no reopening that has taken place of the Hillary Clinton investigation. What I glean from the Comey letter is that new information has come to the FBI and they feel obliged to take a look at it.

What he's saying beyond that, I really don't know. I mean, the final paragraph --

SPICER: Right.

SMERCONISH: I'll put it up on the screen for you and everybody else to take a look at. The final paragraph says, "Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your committees about our efforts in light of my previous testimony."

[09:25:05] It's such a shame because it puts voters in the dark. I asked the vice president of the United States, the former head of the Senate Judiciary Committee, what does it mean? He doesn't know. I'm a lawyer, I don't know. You don't know.

SPICER: Well, I don't. You're absolutely right, I don't know, you don't know, no one else knows. But generally speaking, when you get a letter from the FBI saying that we have new information, it's not because they're trying to give you a medal. It's because there's a problem, or an investigation or something that's not right.

You generally don't get letters from the FBI telling you that you won the Publisher's Clearinghouse. That's just not how it works. So I don't think that getting a letter from the FBI in any way, shape or form talking about new information is something that any campaign would look forward to. But the bigger point, Michael, is again this goes back to it's a

pattern with the Clintons. This isn't the first time that we've heard about investigations with the Clintons. It's not the first time that we've heard about one set of rules and another. It's not a pattern of them telling us one thing and another. Excuse me. It is a pattern, over and over again for 30 years we've heard this from the Clintons. Them telling us, nope, it didn't happen and then we find out that it did.

And if you -- and I think what is important for the American people and the American voters to understand is that this is what we can expect from the Clintons if they go back to the White House. It will be four more years of FBI investigations, of them telling the American people one thing and them doing another.

SMERCONISH: All right. Everybody is getting their say here today as we are 10 days out. The vice president for Hillary Clinton. Sean Spicer, the chief strategist for the RNC.

Thank you, Sean, I appreciate you being here.

SPICER: You bet, Michael.

SMERCONISH: Still to come, by raising new e-mail issues 10 days before the election, did FBI director James Comey overstep into partisan territory?

(BEGIN VIDEO CLIP)

CLINTON: If they're going to be sending this kind of letter that is only going originally to Republican members of the House, that they need to share whatever facts they claim to have.

TRUMP: Hillary Clinton tried to politicize this investigation by attacking and falsely accusing the FBI director of only sending the letter to Republicans. Another Clinton lie.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:31:35] MICHAEL SMERCONISH, CNN ANCHOR: A possible October surprise. FBI Director James Comey sent Congress a letter saying the bureau is reviewing new e-mails that could be related to Hillary Clinton's personal servers. It turns out the e-mails surfaced in the FBI's investigation into disgraced Congressman Anthony Weiner, who, of course, separated from top Clinton aide, Huma Abedin, after a sexting incident.

With few details available, the Trump immediately celebrated. Trump even claimed that this was worse than Watergate, while the Clinton campaign demanded more information so it could properly respond.

Comey felt legally obliged to inform Congress now or risk being accused of hiding relevant election. But was the timing suspect?

Joining me now Matt Miller, former spokesman for the Department of Justice. He supports Hillary Clinton.

Matt, you don't like the way this has unfolded in the last 24 hours. Why?

MATTHEW MILLER, FORMER DEPARTMENT OF JUSTICE SPOKESMAN: No, I don't. In fact, I think Director Comey mishandled this investigation going back to his press conference in July, where he made reckless statement, he speculated about things that were beyond the findings that the FBI -- beyond the findings of FBI investigation and it carries through really to what he did yesterday.

You know, the Justice Department generally has rules prohibiting them from saying anything about an investigation. He blew through those rules a long time ago. But even if you ignore that, they certainly have a long standing practice that they don't do anything in close proximity to an election that could be -- that could appear to influence that election. They usually interpret that as 60 days, let alone 11 days before the election, to come out like he did yesterday.

SMERCONISH: Let's go back to the press conference to which you just referred, remind viewers, what is it that FBI Director Comey said. Roll it.

MILLER: So that was originally the original sin.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing, the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, classified sensitive information.

(END VIDEO CLIP)

SMERCONISH: What's wrong with that? Why can't the FBI director -- why shouldn't he in full disclosure and transparency say, we took a look and we found extreme carelessness?

MILLER: Because the FBI director has one job, it's to investigate and find whether there was evidence of a crime. And if there was evidence of a crime, to along with the department of prosecutors, bring a case in court in which case the defendant will have an opportunity to respond.

If they find no evidence of a crime, they're not supposed to pass their own personal judgments about what's careless and what isn't. There are other authorities that have the responsibility to do that, in this case, the inspector general of the State Department. Careless is not a position that's grounded in any law, grounded in fact, it was his personal opinion and by doing that, what he did is give a fuel to Republicans who wanted to politicize the outcome of the investigation.

What he should have done is handled it the way they handle all similar investigations which is to close case, say that they reviewed it thoroughly and that there's no reason to bring charges. SMERCONISH: Matt, I think he's dammed if he does and dammed if he

doesn't.

Let me put back on the screen that final paragraph of yesterday's letter which causes this kerfuffle. Look at the language. "Although the FBI cannot yet assess whether or not this material may be significant and I cannot predict how long it will take us to complete the additional work, I belie it is important to update your committees about our efforts in light of my previous testimony."

Let's assume that he didn't send the letter yesterday. Let's further assume that Hillary goes on to beat Donald Trump as the polls suggest had been the case up until yesterday.

[09:35:05] And then it comes to light that these Carlos Danger e-mails landed on the lap of the FBI, no pun intended. There would be a hue and cry from the right and they would say, we should have known this information before Election Day, why weren't we told?

MILLER: So, there are two problems with that. One, we don't know anymore information today than we did yesterday. We don't know what these e-mails are. We've seen reports that many of them might be duplicates.

So, all he has done is introduced the opportunity for Republicans and others to speculate, to offer innuendo, to make reckless charges when in fact voters don't have anymore information today than they did yesterday.

Second, you're right that he would have been subject to criticism, but you know what? Being an FBI director is a big job, it's a hard job. And when I know you're in those positions, you're supposed to follow the rules, follow the law, follow Department of Justice practices and if you do that, you'd be subject to criticism, but you know what, suck it up and take the heat.

SMERCONISH: Final thought, I went to bed last night thinking that this was a shoddy and poorly drafted letter. I said to myself, you know, what exactly is he trying to communicate?

I have a different impression today. My impression today is one of trying to balance these responsibilities that he faces, feeling an obligation to say something but yet not wanting to put his thumb on the scale and suggest that there's criminality here when he really doesn't know what he's got. Final word is yours.

MILLER: Yes. The problem is by sending this letter he did put his thumb on the scale. You know, we've seen reporting in New York this morning from Jane Mayer that he defied the wishes of the attorney general who wanted him to follow standard practice and not say anything. That's really what he should have done.

I think this in case, you know, he has been so worried about varnishing his own reputation for independence and integrity that it's led him to make mistakes going back to July, continuing on to yesterday and yesterday was by far the biggest one. SMERCONISH: All right. Matt Miller, thank you for being here.

MILLER: Thank you.

SMERCONISH: I guess my final word would simply be that he initially offended one side of the aisle, then he offended the other side of the aisle. I kind of like that because somewhere in the middle lies the truth.

Still ahead, which direction does Fox News go from here? Will Megyn Kelly stay with the conservative network? My take on how that decision could shape the future of the Grand Old Party.

And here's is one of your tweets @Smerconish, "Michael, you made it incredibly clear, you're incapable of being non-biased. Sad."

Stick around.

(COMMERCIAL BREAK)

[09:41:36] SMERCONISH: Megyn Kelly had a contentious interview with Newt Gingrich this week. The two clashed over Donald Trump. And by the end of the confrontation, Gingrich told Kelly she was fixated on sex.

(BEGIN VIDEO CLIP)

NEWT GINGRICH (R), FORMER HOUSE SPEAKER: You are fascinated with sex and you don't care about public policy.

MEGYN KELLY, FOX NEWS HOST: Me, really?

GINGRICH: That's what I get out of watching you tonight. Do you want to comment on whether the Clinton ticket has a relationship to a sexual predator?

KELLY: We on the "Kelly File" have covered that story as well, sir.

(CROSSTALK)

GINGRICH: I want to hear you use words. I want to hear your words, Bill Clinton sexual predator. I dare you. Say, Bill Clinton sexual predator.

KELLY: We're going to have to leave it at that and you can take your anger issues and spend some time working on them, Mr. Speaker. Thanks for being here.

GINGRICH: And you, too.

(END VIDEO CLIP)

SMERCONISH: It was another of what some observers call a Megyn moment, instances where the FOX News star seeks to distinguish herself from her conservative colleagues by showing independence. And now, with Roger Ailes gone from FOX and Kelly's contract up for

renewal, Megyn moments take on added significance, not just for Kelly and for FOX News, but for the Republican Party, too.

Republican leadership today is embodied in media outlets like FOX News, AM talk radio, Drudge and Breitbart. And while those platforms have energized the GOP base where they have often played to base instincts like birtherism, they have likewise limited the ability of the party to reach a broad audience. It's a double edged sword.

Should Trump lose the election, some think he might establish Trump TV, a preview of which he's been showcasing on Facebook. That might be great news for the Republican Party, especially if Trump takes with him some of doctrinaire personalities.

And here's why -- if Kelly renews at FOX and if the network brand becomes more closely aligned with the independence she has shown this cycle and was exhibited by Chris Wallace in the final presidential debate or that which we see in Shepard Smith as distinguished from FOX's more ideological hosts, that could enable the GOP to likewise shun the type of vitriol that wins primaries but loses general elections.

A FOX News that is conservative but really fair and balanced could provide the type of leadership that makes the GOP more competitive in presidential elections.

Joining me now to discuss, CNN's host of "RELIABLE SOURCES", Brian Stelter.

Hey, Brian, what's going on? Is she going to be renewed over there or do we need to make space for her at Time Warner?

BRIAN STELTER, CNN HOST OF "RELIABLE SOURCES": She is in no hurry to renew at Fox. That's what we know for sure. Mr. Murdoch, Rupert Murdoch, would like her to make a new deal before her book comes out in a couple weeks, that way she doesn't get asked about it at every interview.

But she is no hurry. Her agents want to do due diligence. Her deal is not up until next summer. So, I think she's going to let this to play out for a while so she can decide, is there space at CNN or ABC or another network instead of FOX.

SMERCONISH: No one is as knowledgeable as Brian Stelter when it comes to these matters, no one better reads the tea leaves over there at FOX than you. Is this attributable to a divide within the Murdoch family?

STELTER: I think there is a dynamic at play about the future of the FOX News is. But we heard from Rupert Murdoch this week, speaking to "The Wall Street Journal", saying that changing the editorial tone would be business suicide.

I think what you're describing, Michael, is the desire to have a healthy GOP and healthy GOP requires a reality check for its voters, for its viewers, for the viewer of FOX News. [09:45:08] But I think too often conservative media leaders mislead

rather than lead, talking about voter fraud, talking about rigged elections, things like that. We're seeing a lot of misleading happening, rather than real leadership.

You can see that in a new Suffolk University poll. It shows that FOX viewers are much more likely than CNN or MSNBC viewers to believe that the results could be manipulated, that the results could be manipulated. And that's because they're getting misleading information from FOX News.

So, I think you and I are in agreement. It would be a benefit for FOX's audience to have more accurate information from the Megyn Kelly's of the world, but wouldn't that risk losing some of their viewers? Wouldn't that risk turning off some of their viewers?

SMERCONISH: It might. But I'm looking at it from a different perspective. You know, you're doing the media analysis and I'm doing the political analysis and they overlap here. What I'm saying is it would be in the best interest of the Republican Party --

STELTER: Right, right.

SMERCONISH: -- to have a truly fair and balanced news where its members could go for news and information without reliance on things like birtherism where you're going to fire up the base but you're going to upset all the independents that you need in a general election.

But, you know, you raise a great point. If there becomes a Trump TV, with Bannon and Breitbart and so forth, then, you know, how much is left for FOX?

SMERCONISH: That's a huge question. Let's assume Trump loses for a moment, let's assume he launches a network or streaming service, how many viewers gravitate toward that?

We see so far on Facebook Live very small audiences. But that's just Facebook Live, it's not the power of a television network. Just this hour, there's yet other story from another reporter saying the Trump Organization is interested in launching something. Gabe Sherman, writing for says that Trump's son-in-law Jared Kushner had talks with bankers about how to monetize all this interest from Trump's voters.

The quote in the article is, "Kushner has approached Wall Street bankers and pitched ideas for media startups." Now, Kushner denied this to me and lots of other reporters. But the idea continues to percolate, because it makes all the sense in the world from Donald Trump's point of view.

SMERCONISH: There's a conflict here between winning elections and attracting ears and eyeballs and computer clicks. The latter are great for your profit margin, but not for turning out a general election audience in the fall.

You get the final word. STELTER: I can't say it better than you did. The Donald Trump

campaign built this data base of millions and millions and millions of passionate voters. And what it does with that data base kind of determines are they really in it to win this election or in it to make a lot of money.

SMERCONISH: Yes, well said. Brian Stelter, thank you.

STELTER: Thanks.

SMERCONSH: And, of course, everybody tomorrow be sure you tune into Brian's show on the media, "RELIABLE SOURCES", Sunday 11:00 a.m. Eastern.

Still to come, your best and worst tweets. Can you hit me with another one?

"Love when you said you decided not to vote for Huma, right, or Anthony." Yes, I made that decision a long time ago.

(COMMERCIAL BREAK)

[09:52:05] SMERCONISH: I so enjoyed my conversation with Vice President Joe Biden I want to give you a DVD extra.

(BEGIN VIDEO CLIP)

SMERCONISH: We're in St. Louis together.

JOSEPH BIDEN, VICE PRESIDENT OF THE UNITED STATES: Yes.

SMERCONISH: I watched you deliver a stem winder of a speech just a little while ago. Here's what I noticed. You came out, you were here for candidate Kander, who's running here in Missouri as a Democrat. And the teleprompter was there. And you came out with a notebook, a prepared set of remarks.

I think you ditched it and instead you fired from the hip. And among the things that I heard you say was that you told an old Senate story and you said you don't question -- you learned early on -- you don't question someone's motivation.

BIDEN: That's right.

SMERCONISH: You question their judgment.

BIDEN: That's right.

SMERCONISH: Do you not question Donald Trump's motivation?

BIDEN: No.

SMERCONISH: And, Mr. President, here's why I ask the question. There's a lot of folks who are looking at the way this has played out, and they say, this is all about Trump TV. This is all about building his brand action even though I think it's hurting him now. BIDEN: No, I don't. I just judge him by what he says and what he

does. What he says is outrageous. What he's done is outrageous. A guy stands up and says American workers make too much money but by the way, Hazelton, Scranton, trust me, I'm going to help you.

This is a guy that didn't know that Crimea was part of the country of Ukraine. This is a guy who talks and gives so much cover to Putin and the things he says and does.

SMERCONISH: But it's his judgment, not his motivation --

BIDEN: It's his judgment.

SMERCONISH: -- that you're questioning.

BIDEN: It's his lack of judgment, his judgment and/or his fundamental lack of knowledge. He is fully unqualified to be president of the United States of America in terms of the demonstrable things he's done relative to his character and what he has said he has don, and what he says he would do.

SMERCONISH: And many question her motivation and you would say that's off limits, question her judgment --

BIDEN: The voter can do anything they want. The only way you make this country work is you look at people's actions, not -- you don't know their motives.

(END VIDEO CLIP)

SMERCONISH: As I always say, you can follow me on Twitter if you can spell Smerconish.

I took a look at the Twitter feed, you should do likewise, nobody is happy this week. I'm carrying water for the left. I'm carrying water for the right.

Here's some of what just came in.

"Smerconish, I'm a white collar working Republican who wishes Joe Biden would have ran in 2016."

I think there are a lot. I mean, look at the polling data. It suggests that he would have won this thing had he gotten in. What I was trying to point out and my questioning of the vice president is that so many with whom he does well, the lunch pail voters, are for Donald Trump. At least in my neck of the woods in northeastern Pennsylvania and not for Hillary Clinton, and yet they don't have any policy in common.

What else came in?

"I can only imagine how far ahead in the polls Democrats would be with such a likeable guy like Joe Biden." Yes, more of the same. Give me another one. [09:55:00] "Great coal cracker interview. I'm from Wilkes-Barre. Now

practicing law and living in" -- I guess I should explain. Coal crackers, it's just a term that we used to describe those who come from the coal regions of Pennsylvania, like my family and like his family. It has nothing to do, shall I say, with white crackers.

One more tweet if we have time. Put it up there.

"You are a turncoat. Maybe you had a nightmare last night that turned you into Spicer's assistance in whining." I think that's supposed to be.

Listen, in the first segment of the program, you heard the vice president of the United States make the case for Hillary Clinton and in the second segment of the program, you heard the chief strategist for Donald Trump and the RNC do likewise for their party. And if you watched the whole show, it sort of all comes out in the wash and we end up somewhere in the middle, which is where I think we all need to be.

I will see you back here next Saturday, which will be our last show before the election. I'll see you then.