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SMERCONISH

FBI, CIA Agree: Russia Aimed to Help Trump; Obama to Putin: Knock It Off; RNC's Spicer Returns!; Electoral College Vote Monday; Back to Waterboarding? Aired 9-10a ET

Aired December 17, 2016 - 09:00   ET

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


[09:00:19] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome your viewers in the United States and around the world.

The FBI and CIA now in agreement that Russia was trying to help Donald Trump win the presidency. And President Obama confirmed the hack, saying he told Putin to knock it off. Will the latest news cause the president-elect to change his view? I'll ask Sean Spicer.

And you remember our conversation from last week --

(BEGIN VIDEO CLIP)

SMERCONISH: I need to ask you an additional question --

SEAN SPICER, CHIEF STRATEGIST & COMMUNICATIONS DIRECTOR, RNC: No.

(CROSSTALK)

SMERCONISH: Speak to the point -- wait, I want you to address this.

SPICER: I don't think any foreign entity, any individual, any entity --

SMERCONISH: Why don't you say that? Why didn't Trump say it?

(CROSSTALK)

SPICER: I'm saying it, Michael! I just said it.

(END VIDEO CLIP)

SMERCONISH: Alexander Hamilton in the news and not because of the Broadway musical. Trump opponents have been calling for Hamilton electors to change the Electoral College vote on Monday. But did the Founding Fathers really envision our current situation?

And during the campaign, Donald Trump called for a return to water boarding. I'll talk about enhanced interrogation with the man who helped create and implement the methods that were used after 9/11. Dr. James Mitchell waterboarded the worst of the worst and he is here to explain.

But first, 538 members of the Electoral College will meet in state capitals on Monday to finalize the results of the presidential election, causing some Americans to invoke the name of Alexander Hamilton almost as often as when Mike Pence was lectured by the cast of the hit Broadway play.

That's because when our new nation was first ratifying its Constitution, Alexander Hamilton wrote a Federalist Paper in which he described the Electoral College process. Hamilton wrote that the goal was to ensure that, quote, "the office of president will never fall to the lot of any man who is not in an imminent degree endowed with the requisite qualifications."

Some critics of Donald Trump think we face that extraordinary circumstance and that on Monday the electors need to step in and correct the outcome of the election because of their important role. Let me be clear, I see no chance that that happens. It's beyond unlikely.

But that didn't stop Martin Sheen who this week was among 18 Hollywood celebrities who implored electors not to vote for Trump.

(BEGIN VIDEO CLIP)

MARTIN SHEEN, ACTOR: Republican members of the electoral college, this message is for you.

UNIDENTIFIED MALE: The Electoral College was created specifically to prevent an unfit candidate from becoming president.

UNIDENTIFIED MALE: There are 538 members of the Electoral College. You --

UNIDENTIFIED MALE: And just 36 consciousness Republican electors can make a difference.

UNIDENTIFIED FEMALE: By voting your conscience on December 19th.

(END VIDEO CLIP)

SMERCONISH: I question the logic of those asking the electors to go rogue. Here is why -- true, we don't have a direct election of presidents in the United States. When we cast our ballots for president on November 8th, we were actually choosing between competing states of electors, the same number as congressional representatives and senators, that's how we get the magic number of 270 needed to be elected president.

And the 12th Amendment spells out the process for the Electoral College. But it doesn't obligate an elector to vote in a particular way. Those who don't follow the wish, the will of the electorate, they're called faithless electors and the Constitution offers little guidance on them, which is why many look to Hamilton's Federalist Paper number 68 for insight.

And that's where Hamilton wrote this, quote, "It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adopted to the station and acting under circumstances favorable to deliberation and to a judicious combination of all the reasons and inducements which were proper to govern their choice," unquote.

Boy, that sounds good in theory. But is that really what we have on our hands? Put aside for a moment whether you think Trump lacks requisite qualifications. Have we assembled, quote, "men most capable" to replace the will of the electorate? I have my doubts.

Take the case of Chris Suprun, the Texas elector, who was the only Trump elector to publicly state that he would be voting against Trump. And weeks earlier, he had actually appeared on this program to declare his belief in the electoral system and said that he would be voting for Trump when he appeared on screen, I first saluted him for his service.

(BEGIN VIDEO CLIP)

SMERCONISH: Hey, Chris, I salute you. You are one of the first responders on September 11 to rush into the Pentagon. Thank you for that, sir.

(END VIDEO CLIP)

[09:05:02] SMERCONISH: I said that because as far as I or anyone else knew, Suprun was a heroic firefighters and responder at the Pentagon on 9/11. And he repeated his claim of being a firefighter on 9/11, in his "New York Times" editorial in which he took his anti-Trump stand.

But then Texas ABC affiliate WFAA dug into his resume and found some of it questionable. The firefighters unit he claimed to be on on September 11 didn't hire him until October 10, 2001, a month after the attacks, and the department did not respond to any of the 9/11 sites.

WFAA found more troubling information, his current job listing turns out to be false. He spent the last five years they say in bankruptcy. He then released a defense, which read in part, quote, "That story exhibits a reckless disregard for the truth. I never claimed to be a first responder on 9/11 with the Manassas Park Fire Department, I was a volunteer firefighter at the time for the Dale City Fire Department, when I responded to the attacks at the Pentagon."

However, other accounts do not present him as a firefighter as he claims but as a volunteer paramedic.

And, let me be clear, my point is not to bash Suprun in particular, but he is the most publicized of the 538 electors. And so, his case illustrates we don't know anything about any of them. The requirements for the office of an elector are outlined in Article 2 Section 1 of the constitution, quote, "No senator or representative or person holding an office of trust or profit under the United States shall be appointed an elector."

Man, that leaves a wide range of people, many who are total unknowns but nevertheless empowered with this sacred trust.

Joining me now, a man who feels differently, the lawyer who launched something called "the electors trust" and has been working with Suprun and other electors deciding if they can and should vote against the popular vote -- Harvard Law professor, former presidential candidate Lawrence Lessig.

Professor, tell me how I'm wrong? Why should we be entrusting these 538 who we really know nothing about to change the will of the electorate?

LAWRENCE LESSIG, FOUNDER, ELECTORS TRUST: Well, Michael, I didn't hear you argue whether we should or shouldn't, I heard you describe article -- the 12th Amendment to the Constitution. I thought you did a very good job of describing it. The 12th Amendment creates this office that we are now describing as the electors. And the electors have, as Justice Jackson put it in Ray versus Blair in 1952, they are free agents. They have their freedom to exercise independent, nonpartisan judgment.

Now, if we don't like this, we ought to change the Constitution. The difference between the electors we have today and the electors Hamilton was speaking of is that today the electors have taken a pledge. They've pledged to vote for one candidate or another, and I believe they have a moral obligation to live up to that pledge unless there's an overriding reason why they can't do that, for example, the presidential candidate doesn't live up to the qualifications of being president.

So I think it's a very narrow discretion, but I do think constitutionally they have that discretion and we can't just wish it away without amending the Constitution to take it away.

SMERCONISH: I'm going to ask you in a moment why you question whether the president-elect has the requisite qualifications. But let me just drill down -- I can't believe we're having this conversation, but I'm thrilled we're having it. It seems a lit esoteric.

But let's drill down for a moment on that Federalist Paper where Hamilton describes men most capable. What reason do you have to believe that we've got 538 people ready to go on Monday who are men most capable?

LESSIG: Yes, but that's the point. What Hamilton was describing the Electoral College, they imagined these people would be getting together and deliberating, and engaging in high discourse about who should be president or not. And we've evolved that system. We now have a system where what we're basically doing is electing people who have pledged to support a particular candidate or someone else.

But still, their residual constitutional liberty, their freedom to make the judgment of conscientious remains. So, I don't think that we have, you know, the Hamiltons and the Madisons and the Washingtons sitting around in the state capitals necessarily. I'm sure many of them are quite capable, quite serious citizens, but we do have people who take seriously their constitutional obligation, and that obligation is to be the final check before someone becomes president of the United States. And so, it's incredibly important that they consider the charges that

have been raised about whether, in fact, Donald Trump should be the next president of the United States.

SMERCONISH: How many of the 37 that are necessary do you believe are ready to go and vote opposite of the way the electorate cast their ballots?

[09:10:01] Are you anywhere close to that number?

LESSIG: Well, I don't know and I don't think anybody knows right now. What I said at the beginning of the week was that I had done a survey of the three groups that were working with electors, and I was absolutely confident that at least 20 at that point were seriously considering voting against their pledge. Since that time, those groups have upped the numbers, but I've not done the homework to go and check them, so I'm not going to make any further representations.

But I believe that if they don't get to 40 at least, the number is going to be maybe a handful. Obviously, Chris will be out there and a couple others, but I don't think many people are going to risk the retaliation and the hatred of coming out and voting if they're not confident that the vote is going to have an effect. So, I think a lot is happening this weekend to nail down exactly what that number will be for the people who are actually engaged in the process of recruiting electors.

SMERCONISH: When we speak of requisite qualifications, we're not raising an issue of whether Donald Trump is 35 and was born in the United States. So, take your best shot. What is the requisite qualification that you think he lacks that an elector on Monday should be cognizant of before they cast their ballot?

LESSIG: Yes. So, you know, many people are attacking Donald Trump are attacking him for or trying to recruit electors for a reason I don't think is legitimate. They're saying Donald Trump is not fit. You know, my own view is I don't think he's fit to be president, but 62 million Americans heard that argument and they went the other way.

So I don't think that the electors are supposed to be kind of guardians of our democracy second guessing the people with respect to the issues the people had some chance to know something about. But there are two issues that have come up after this election which are incredibly important for evaluating whether this man should be president.

The first of them, of course, is his unwillingness to divest himself from foreign assets and liabilities despite the Constitution's clear requirements in the foreign bribery clause that he do so. This unwillingness to give up his own wealth to be president is an extraordinary show of callousness about how our Constitution tries to protect us from foreign intrigue and the compromise that is caused by that. So I think that's number one.

Number two, the idea that every intelligent service in our federal government now has concluded that the Russians were involved in this election and the Trump campaign itself was directly involved as the Russians said immediately after the election should in an elector's mind raise the question whether we should have a zero tolerance principle when they have this kind of foreign intervention in our election. Again, as you know because you read Federalist 68, this was the prime concern that they had when they set up this system for selecting presidents, that somebody with foreign ties would be elected president that would be no way to stop them unless they had an electoral college who should do it.

Now, these are new facts. These aren't things that anybody knew at the time of the election or at least could prove at the time of the election and it's incumbent on the electors to consider these facts now. Now, I'm not going to tell them what they should do with them, but it's completely reasonable in my view for them to see their moral obligation to their pledge overridden by this moral obligation to uphold these principles that are part of our Constitution.

SMERCONISH: Don't -- final question, Professor Lessig, don't you worry that if the electoral college -- I don't think it happens and I don't think you think it happens and I don't want to present to CNN viewers around the globe that we think there's a chance of this happening on Monday. But we're having an abstract conversation, don't you worry of literally a revolution if in fact 60 million Americans who cast their ballots, 60 million plus, all of a sudden had the Electoral College go in a different direction.

LESSIG: Well, you know, no, I don't fear a revolution. There's a procedure here. If the Electoral College votes against Donald Trump, it's going to go to House of Representatives and the House of Representatives three times in the past has done exactly the same thing where they have then had to choose the president.

And, of course, 62 million Americans supported Donald Trump, 64 million Americans supported Hillary Clinton. Hillary Clinton won't be president. It's pretty clear despite that overwhelming popular result.

If it goes to the House, it's most likely to be either Donald Trump or another Republican. Now, when in 2000, one justice of the Supreme Court effectively stopped a recount and stopped the election of the person who had won the popular vote, many people thought there would be a revolution then because that procedure is not in the Constitution. Nobody outlined the Supreme Court as being part of this process.

But I think America understood in the end that the procedure that got us to the place that we got in 2000 had to be validated and I think this procedure has to be validated, too. So, I say right now that if on Monday, as people expect they vote to uphold Donald Trump, he's my president and I do my duty as a citizen and continuing to fight --

[09:15:00] SMERCONISH: Me, too.

LESSIG: -- to make America as great as it can be, but I don't think there should be any question after that point. But I do think the Constitution gives us an Electoral College and this

is the election. It was created for. And so, I think we ought to take seriously the serious considerations that they are engaged in right now and give them the respect that they are owed for this incredibly difficult decision they never expected they would have to make.

SMERCONISH: I appreciate the dialogue. Professor Lessig, thanks so much for being here.

LESSIG: Thank you, Michael.

SMERCONISH: And to those of you at home, what do you think? Tweet me @Smerconish. I'll read them throughout the course of the program. They're already filing in.

"Smerconish, get over it. Trump won."

I know Trump won, Julian. I'm having a conversation to educate folks as to the Constitution and the Federalist Papers because there's a heavy discussion out there has to what happens Monday and I want to disabuse CNN viewers of false information. I think I just did that.

"Smerconish, Donald Trump may be the most unfit president we have ever chosen. I wish the electors could save us from ourselves. They won't."

Hey, real gold standard. Those electors are not men most capable as envisioned by Hamilton. That was my whole point.

One more tweet. Quickly, do it if you got it. I could do that a full hour. No?

All right. One more. "Isn't our America current situation in part exactly what our forefathers designed the Electoral College for?"

But, Myya, who are these 538? Again, I didn't want to hammer Chris Suprun. I don't know the facts about Chris Suprun. All I know are the published accounts.

But it raised an interesting issue, that 538 people you never heard of for the most part are going to state capitals on Monday. Do you really want to entrust 538 strangers who haven't been vetted? That's not what Hamilton had in mind.

All right. I'm off my soap box.

Also this week, we've got a viewer question, don't answer on Twitter. Go online at CNN.com/vote and weigh in and we will track the results in real-time.

See, later in the program, I'm going to be speaking with Dr. James Mitchell who designed the post-9/11 enhanced interrogation program and personally waterboarded al Qaeda detainees. So, here's the question, does the saving of American lives ever justify the use of enhanced interrogation methods. Go to CNN.com/vote. Up next, things got a little hot here last week, but in the true

Christmas spirit, the RNC's Sean Spicer is back and maybe this week, we'll exchange gifts.

(BEGIN VIDEO CLIPS)

SETH MEYERS, COMEDIAN: Trump, his spokespeople in the media can't agree in the basic facts, which at the very least has given us some fantastic new entries on the hit album. "Now that's what I call white guys screaming at each other in the news".

SMERCONISH: President-elect Trump is saying, move on, folks, there's nothing to see here. But I need to ask you an additional question. Speak to the point that I'm -- wait, wait, I want you to address it.

(CROSSTALK)

SPICER: That's not true, Michael.

I don't think any foreign entity, any individual, any entity --

SMERCONISH: Well, why don't you say that? And why didn't Trump say that?

SPICER: I'm saying it, Michael! I just said it!

SMERCONISH: I'm just an American who is trying to discern all that I'm reporting on --

SPICER: No! Then answer the question, Michael.

MEYER: Answer the question, Michael. Answer the question, Michael. No, you answer the question! What was the question? I don't remember!

(END VIDEO CLIPS)

(COMMERCIAL BREAK)

[09:21:49] SMERCONISH: Check out this headline, "FBI in agreement with CIA that Russia aimed to help Trump win White House." That's the headline "The Washington Post," yet Donald Trump continues to say he doesn't believe it and that it's just partisan sour grapes.

And in his final press conference of 2016, President Obama blamed Vladimir Putin and said that he told him to knock it off.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: In early September, when I saw President Putin in China I felt that the most effective way to ensure that that didn't happen was to talk to him directly and tell him to cut it out and there would be some serious consequences if he didn't. And, in fact, we did not see further tampering of the election process.

(END VIDEO CLIP)

SMERCONISH: Joining me now, RNC chief strategist and communications director, Sean Spicer.

Hey, Sean, the only two who aren't surprised that you're back this week are the two of us. I'm glad to see you. I hope you didn't bring me in coal.

SPICER: I never would. Thank you for having me, Michael.

SMERCONISH: So, yesterday, President Obama vowed retaliation against Russia and Vladimir Putin. Will President-elect Trump carry that out when he's president?

SPICER: I think to presume that he's going to do anything at this point would be premature. He is not president yet. President Obama has every right to carry out the duties that he sees fit based on the information he has through the rest of his term.

SMERCONISH: OK. But things have changed since we were last together. Now, you've got the CIA and the FBI reading from the same hymnal. So, the intelligence community is uniform. It seems like everybody sees this the same way except the incoming president.

SPICER: Well, again, I think one of the things that we have to sort of bifurcate is, did Russia or other entities try to probe websites and extract data, et cetera? And were they successful? In other words, did they have any impact on the election?

One of the things we need to make sure we're clear about when we talk about this is that there is no evidence that the outcome of the election was changed. And I'll tell you why this is important. A week before the election, the Department of Homeland Security called us, the DNC, and the various campaigns to meet with them.

And they wanted us to understand that because of the way that we as Americans vote, i.e., different voting systems throughout the country, some people vote with paper ballots, some use machines, at no time are they connected to the internet, if you will, and there's no way except for downloading results at the end, in some cases, that there's any way to change the outcome of the election. And they asked us, could we stand in unison together and make sure that we re-enforced to all Americans that the integrity of our voting systems and our outcomes were sound?

And now, it seems as though they've shifted that tune. And it's interesting how prior to the election when everybody thought that Hillary Clinton was clearly going to be the winner, they wanted everybody to sit and sing kumbaya about the integrity of the voting systems. Now that Donald Trump has shown he has won resoundingly, it's interesting how that tune has changed.

[09:25:02] And I think it's sad because there's a difference between whether or not we should be concerned that entities, foreign or otherwise, tried to hack systems or what-have-you and whether or not they were successful? And what's happening is that some folks in the media and a lot of Democrats have now changed the tune that they had prior to November 8th.

SMERCONISH: OK. I feel like I should be saying serenity now. I feel my blood pressure rising again because Sean Spicer seems to be saying it's dependent upon whether Russia altered the outcome, and I don't agree with that. What matters --

SPICER: No, no, no. It's not. I'm sorry. Right, no, no. But just to be clear --

SMERCONISH: Go ahead and finish.

SPICER: I understand that other entities try to probe and different sites. We do that. Other entities do that. We all understand that's why we take precautions IT-wise to prevent it. But I think there's a big difference between our entities trying to probe different websites and are they actually having an impact on the outcome of an election.

And the problem is that people are conflating those two issues into one and they are very different.

SMERCONISH: But let me be clear on something -- it's unknowable whether the outcome of the election was altered by virtue of the Russian hack. I mean, what was it, 80,000 votes in three swing states changed the course of the White House. She won the popular vote I need not remind you.

Who is to say how many Sanders people weren't pissed by the revelations about what went on in the DNC with Debbie Wasserman Schultz having her thumb on the scale and decided to sit out where they otherwise would have voted for Hillary? You and I could never know that.

I just want to be clear, I think we need to be uniform as Americans.

(CROSSTALK)

SMERCONISH: Wait, final thought, we need to be uniform as Americans against Putin and Russia regardless of whether they were ultimately successful in electing Donald Trump.

SPICER: But one of the things, Michael, that has been devoid of any of this conversation -- you talk about what we know and what's certain based on what you hear and leaks and third party sources. This is what the Director of National Intelligence James Clapper said in open testimony to the House of Representatives. "As far as the WikiLeaks connection, the evidence there is not as strong and we do not have good insight into the sequencing of releases or when data may have been provided. We don't have good insight into that," end of quote.

So, you all want to talk in the media about these unanimous sources. That's what the director of national intelligence said on the record to the House Intelligence Committee.

So, why is that not part of the conversation that you want to have?

SMERCONISH: You've made it part of the conversation. I think we know more today than when Clapper said what he said, because as we are here on this Saturday, the president, the FBI, the CIA, Clapper, the entire intelligence community is lock step in saying that Vladimir Putin tried to alter the outcome of the American presidential race and I simply want to know -- you can have the final word -- what's the new guy, the president-elect, going to do about this when he takes office? That's my question. What's he going to do?

SPICER: Right. But as President Obama said yesterday that to discuss what would happen and he made it very clear that he's not going to disclose how or when America is going to act. And I think I would agree with President Obama on that and it would be very, very inappropriate for President-elect Trump to discuss that at this point as well.

SMERCONISH: Merry Christmas, let your boss know it's OK to say it here. Got no issue with that, OK? Thank you, Sean.

SPICER: Merry Christmas. Thank you, Michael.

SMERCONISH: Thank you.

The Russian hack was detailed in a terrific "New York Times" piece, "The Perfect Weapon: How Russian Cyberpower invaded the U.S." by Eric Lipton, David Sanger and my next guest, Scott Shane.

It's an amazing tick tock of Russia's cyber espionage and information warfare campaign devised to disrupt the 2016 presidential election. I should also mention that Scott Shane is the author of "Objective Troy: A Terrorist, A President and the Rise of the Drone".

Scott, you heard that conversation. React to what you just heard.

SCOTT SHANE, NATIONAL SECRITY REPORTER, NEW YORK TIMES: Well, Mr. Spicer said that, you know, intelligent agencies probe certain websites and that's sort of a normal part of espionage today and he's absolutely right about that.

What was different in this case and what I think took the U.S. intelligence agencies somewhat by surprise is that not only did they probe the DNC, the Democratic Congressional Campaign Committee, John Podesta, the chairman of Hillary Clinton's campaign, not only did they probe and break into those sites, they stole documents -- again, that's traditional espionage. But what was different was they started making them public through a series of essentially front organizations and eventually through WikiLeaks.

[09:30:08] So, you know, it's one thing to steal the information, take it back, put it in your safe in Russia, you know, and try to use it to understand the United States, the U.S. government, U.S. politics better. But this was something different. This wasn't just cyber espionage. This was really information warfare.

So, it wasn't simply probing websites as we recall, a big dump of DNC e-mails on the eve of the Democratic National Convention, you know, created an uproar, completely distracted from the Democrats' planned message and forced the resignation of Debbie Wasserman Schultz and her aides on the eve of the convention that she was supposed to oversee.

And then, WikiLeaks, you know, over the last month or so of the campaign, put out John Podesta's e-mails, you know, hundreds each day, sort of drip, drip, drip. And we in the media, you know, we find it hard to resist inside material like that. And so, we at "The New York Times" and the rest of the major media, you know, wrote about those messages and sort of speculated about the sort of inside gossip on the Democratic side. And it definitely cast sort of sense of back room dealing and back biting and inside sort of dissent on the Democratic side.

As you said, it's impossible to say whether that was enough to turn the election. But I think it's undeniable that it hurt Clinton in the crucial last months of the campaign.

SMERCONISH: Sean Spicer has been critical of "The Times". There's a tweet I want to put on the screen where he said, hey, "Times", you got it wrong. I think he was saluting "The Wall Street Journal" for having gotten it right at this particular time.

There it is. Yes. "Wall Street Journal," Shane Harris, they got it right. "The Times", Miller, you all got it wrong.

Here is something I want to make clear because this is your beat, national security. When I said to Sean Spicer that there's uniformity now, the president, the FBI, the CIA, Jim Clapper, the intelligence community -- they all see it one way and then the outlier is the president-elect. Am I accurate, as far as you know, when I say that? Is it only Trump who is an island unto himself on this issue?

SHANE: You know, it's not only Trump. He has a number of supporters on -- you know, avid supporters who accept his view of this. And on the left, there are a bunch of people who believe that, you know, the intelligence -- American intelligence agencies are warmongers and are trying to get us into war with Russia, and they're expressing skepticism about this.

SMERCONISH: But they're not in the know. They're not in the know.

SHANE: No.

SMERCONISH: Is there anybody in the know who is -- go ahead.

SHANE: Well, I would say that there's a very strong consensus both of the U.S. intelligence agencies and of the private, independent cyber research community that studies these Russian hacking groups that Russia -- that the Russian state, you know, directed and sponsored hacking attacks on the Democratic side of the election.

And if you think about it, Putin had -- you know, this is an old theme for the intelligence agencies. Putin blamed Hillary Clinton personally and publicly in 2011 for stirring up trouble against him. People will remember big demonstrations in Moscow against Putin. That very much upset and scared Vladimir Putin. And he --

SMERCONISH: I remember. SHANE: -- he blamed Hillary Clinton, then secretary of state by name

for that.

SMERCONISH: So, I think I'm hearing from you -- go ahead. Finish your thought. I'm sorry.

SHANE: Well, I mean, so it would not be surprising if he thought this was a good opportunity for payback. And furthermore, you know, most of the American experts thought that Hillary Clinton was going to be the next president of the United States. My newspaper famously and completely wrongly said she had an 85 percent chance of becoming president.

SMERCONISH: Well, that's lot of company.

SHANE: So, naturally, the Russian hackers are going to concentrate on the next president of the United States, weaken her, try to darken her reputation a little bit and learn more about her. So, none of this is terribly surprising and the fact is that if you're attacking Clinton or weakening Clinton in what's basically a two-person presidential race, you are by definition helping Donald Trump.

So, I don't think any of these conclusions are terribly surprising.

[09:35:03] SMERCONISH: Scott Shane, thank you so much for your expertise and your time.

SHANE: Thank you, Michael.

SMERCONISH: Time for everybody else to check in and see what's going on via Twitter. "Smerconish, I can't believe a CNN anchor actually in a way defends Trump. There is a God."

I don't know. Did I defend Trump? You know what, this is evidentiary broadcasting. That's what I'm trying to engage in. I'm not here to defend Trump. I'm not here to hammer Trump. I'm here to talk as a reformed trial lawyer about evidence.

Still to come, while campaigning, Donald Trump embraced harsh interrogation methods for terrorists, including waterboarding. But has more recently suggested he will take the advice of General Mattis who claims you can get more from a subject with a six pack and some smokes.

Next up, Dr. James Mitchell who organized the enhanced interrogation program and conducted waterboarding on high value detainees.

And vote your opinion at CNN.com/vote. Does the saving of American lives ever justify the use of enhanced interrogation methods?

Here is James Spader from a 2004 episode of the series "Boston Legal" --

(BEGIN VIDEO CLIP)

JAMES SPADER AS ALAN SHORE: The truth is, as Americans, we love torture. We keep it to ourselves, of course. But come on, when it comes to evil doers, torture is OK. Just don't tell anybody.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:40:20] SMERCONISH: If we need to get information out of someone who is plotting to kill lots of innocent people, is enhanced interrogation a necessary evil? It's a divisive issue for many Americans, but few know it firsthand like my next guest. He literally wrote the book on enhanced interrogation.

James Mitchell has a PhD in clinical psychology. He served 22 years in the U.S. Air Force, helped develop the CIA's post-9/11 enhanced interrogation program and personally performed those techniques on five high valued detainees, including Khalid Sheikh Mohammed.

Dr. Mitchell, thanks for being here.

You know the narrative about you, promulgated in large part from Senator Feinstein's report. The CIA was clueless about what to do with high value detainees. They came to you and a colleague of yours. You charged a fortune. You didn't get anything worthwhile. None of this worked. And, oh by the way, you committed torture.

We can only parse so much of that in the time we have. I'll ask you this -- did it work?

DR. JAMES MITCHELL, FORMER CIA INTERROGATOR: Yes, it did. In fact, you shouldn't take my word for it. Take the CIA's word for it. It said it disrupted attacks. That it allowed them to understand better the enemy that we had. That it saved lives and that it prevented another catastrophic attack here in the United States.

SMERCONISH: In your book, you take us inside the room. In fact, I'll reference Abu Zubaydah.

You wrote this, "Bruce poured the weather out of a one liter plastic bottle and I controlled the duration of the pours by standing at the top of the Abu Zubaydah's head, raising and lowering a black cloth to cover his face. When I lowered the clothe, Bruce was to pour. I would watch the guard count out the seconds. When I raised the cloth, Bruce was to stop immediately.

The legal guidance said we could pour water for 20 to 40 seconds, allow the person to breathe unimpeded for three to four breaths and then lower the clothe and pour water for 20 to 40 seconds and so on for twenty minutes."

Was that torture?

MITCHELL: Well, it wasn't in 2002 and 2003. This was looked at by the Justice Department four or five times. And, in fact, prior to them making the decision that waterboarding wasn't torture the last time they did it. I waterboarded two attorneys, one of whom was an assistant attorney general of the United States.

How many attorney generals do you have to waterboard to get a straight answer? I suspect it was one.

SMERCONISH: And yet some of that which took place offended your sensibilities. Al-Nashiri was the mastermind of the bombing of the USS Cole. You didn't like what you saw.

Put this up on the screen from Dr. Mitchell's book.

"I watched the chief interrogator use a variety of physically coercive measures on al-Nashiri that I believed were not on the list of approved techniques. They included the two stress positions discussed earlier. Dousing al-Nashiri with cold water, while using a stiff- bristled brush to scrub his ass and balls and then his mouth, and blowing cigar smoke in his face until he became nauseous."

So, what is it about that that you regarded, I don't know if you would use the word as torture, but that crossed the line and yet your own waterboarding of Abu Zubaydah was within limits. Distinguish.

MITCHELL: Well, the main distinction is that the president approved of it. The Justice Department, the highest law enforcement agency in the country decided -- judged that it wasn't illegal and that it wasn't torture, and those other things, he imported that stuff from South America somewhere. That wasn't on that list of approved techniques.

And I thought that there weren't the kind of safeguards in place, because if you remember reading that section of my book, I tried to stop those interrogations and he told me to get the hell out of the room and had the guards remove me.

SMERCONISH: How do you go from waterboarding Abu Zubaydah, to waterboarding Khalid Sheikh Mohammed? And by the way, in your book, you say he was like a magician in the way he could manipulate his nostrils. But how do you go from carrying out those acts and then doing calisthenics, reading books, watching movies? I mean, the most bizarre part of your book is that there were personal moments that you entertained with the worst of the worst.

MTICHELL: Well, a lot of people have misunderstandings about how long those interrogations took place. You know, Abu Zubaydah was interrogated for one -- I mean, was held for 1,620-something days, of which only 14 days did he receive rough interrogations. The rest of the time he didn't.

Similarly, KSM was held for over 1,289 days, I think. That's three weeks and he had three weeks of rough interrogation and then 170 weeks of living in relative comfort without any kind of mistreatment.

[09:45:10] SMERCONISH: Dr. Mitchell, it had to be hard for you. I mean, I was frankly sympathetic as I read the book for you being a part. You didn't go asking for this, right? You get a phone call on I-95 one day after September 11 and they said, "We need you."

Do you still live with the memories of this ugliness?

MITCHELL: For me, it was a moral decision. What I had to do is -- in my mind, the temporary discomfort of a terrorist who has voluntarily taken up arms to destroy our way of life does not outweigh my moral obligation to do what I can to save hundreds, maybe thousands of people.

SMERCONISH: Yes or no question, is Trump -- are Trump and Mattis wrong when they say you can get all you need with smokes and a six pack. Are they right or are they wrong?

MITCHELL: Here is what I would ask General Mattis. You know, I have a lot of respect for him. He is a hell of a warrior.

But he has to ask himself, what would he do? Would he give up information if he was captured by ISIS or al Qaeda that was likely to get Americans killed for a Camel and a Miller Lite? I don't think so. And KSM didn't either, and neither will somebody else.

Our president-elect needs to ask himself, what is he going to do the next time that there is credible intelligence that our enemies intend to set off a possibly nuclear bomb or some other catastrophic weapon inside of one of our cities? Is he willing to live with the results of that? Is he willing to live with the outcome of that if we just focus on the Army field manual?

My local mall cops can use interrogation techniques that the CIA can't use. So, the good chance that we're going to be standing on the moral high ground looking down into a big smoking hole that used to be several city blocks in some -- in some city like Los Angeles.

SMERCONISH: I pray not. Dr. Mitchell, thank you for being here.

MITCHELL: Thank you, sir, for having me on.

SMERCONISH: Here is a reminder -- we've got a live vote today of viewer opinion on exactly this question -- does the saving of American lives ever justify the use of enhanced interrogation methods? Go to CNN.com/vote.

Still to come, the final result of that viewer question and a special look back at 2016 and more of your tweets like this one -- "Smerconish, if you are a pro-torture, at least be brazen enough to call it what it is. It is torture. Do not hide behind cute names."

Osagie, I don't want to torture your name. Look, if it's a ticking time bomb case, I'll give you your answer, you ready for it? If it's a ticking time bomb case and the only way to save American lives is through what Dr. Mitchell did, I'm for it even if you call it torture. There.

(COMMERCIAL BREAK)

SMERCONISH: So here's the final tally on the viewer question, does the saving of American lives every justify the use of enhanced interrogation methods? Fifty-four percent say no, 46 percent say yes. Not quite an even divide, but a divide nonetheless. Maybe the Electoral College will overturn that on Monday.

One more tweet, "Smerconish, OK, I admitted the Russians tortured me and forced me to vote for Donald Trump."

UncleJohny, I don't think it's a funny situation. I mean, if come 2020, the result goes away you don't like and it's because of the Russians, what will you say then?

We're back in just a moment.

(COMMERCIAL BREAK)

[09:55:38] SMERCONISH: Hey. Before we at Smerconish take off for Christmas, a quick trip through our eventful 2016, starting with one of our most passionate viewers.

(BEGIN VIDEO CLIPS)

DONALD TRUMP, PRESIDENT-ELECT: And I watched on television today, and there were two young guys on CNN, on Smerconish actually. And they were -- who doesn't necessarily treat me go, but I'll give them a little free publicity.

PAT BUCHANAN, FORMER PRESIDENTIAL CANDIDATE: I've watched you on TV, I think I know who you're going to vote for, Michael, and I think the other viewers do as well.

SMERCONISH: I don't think so, Patrick. And that's why there are curtains on the ballot booth.

STEPHEN A. SMITH, TV & RADIO HOST, ESPN: The number one tool we have in America to provoke change is our power to vote.

SMERCONISH: I'm just wondering, are you in Wasilla watching this play out on TV and saying, hey, Todd, I should be in this, I should be in this mix?

SARAH PALIN, FORMER ALASKA GOVERNOR/FORMER REPUBLICAN VP CANDIDATE: No, but I'm saying, hey, Todd, how come these guy have so much defense of the stuff that they're saying. Nobody defended us at that time. But that's when I feel sorry for myself.

JOSEPH BIDEN, VICE PRESIDENT OF THE UNITED STATES: I don't know where the e-mails came from --

SMERCONISH: Apparently, Anthony Weiner.

BIDEN: Well -- oh, God. Anthony Weiner. I should not comment on Anthony Weiner.

SAM WONG, FOUNDER, PRINCETON ELECTION CONSORTIUM: Now, Mike, you really want me to do this?

SMERCONISH: You're a man of your word, Dr. Wong. I appreciate -- how was it, by the way?

WONG: A little nutty. But, you know, if it's good enough for a snake.

SPICER: I am outraged. I don't think any foreign entity, any individual, any --

SMERCONISH: Well, why don't you say that? And why didn't Trump say that?

(CROSSTALK)

SPICER: I'm saying it, Michael! I just said it!

SMERCONISH: That's what I haven't heard.

SPICER: Stop and let me -- OK, I just said it. Let me actually take yes for an answer.

PENNSYLVANIA VOTER: I want a person for president whom I can honestly say merry Christmas.

SMERCONISH: Why can't you say "Merry Christmas" now? Who stands in your way of saying that?

PENNSYLVANIA VOTER: The government.

SMERCONISH: The government?

PENNSYLVANIA VOTER: Yes.

SMERCONISH: Come on.

PENNSYLVANIA VOTER: I truly believe --

SMERCONISH: They told you that on FOX, right?

PENNSYLVANIA VOTER: No, no!

(LAUGHTER)

SMERCONISH: Every December, they roll that out.

WILLIAM WELD, FORMER LIBERTARIAN CANDIDATE: Actually it was good that we got to watch him for half an hour.

(END VIDEOTAPE)

SMERCONISH: Gary Johnson and Bill Weld waited a half hour to make the appearance. So, they sat through the rest of the program and apparently they liked what they saw.

I hope you did too and that you'd have very happy holidays, happy Hanukkah, merry Christmas, happy Electoral College vote from all of us. Thank you to everybody behind the scenes who put the show together.

I'll see you in 2017.