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Interview with General Michael Hayden; Interview with Jill Stein; What Would Costs Be of Cosby Retrial?; Could Supreme Court Finally Address Gerrymandering? Aired 9-10a ET

Aired June 24, 2017 - 09:00   ET


[09:00:12] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world.

A blockbuster "Washington Post" report confirms President Vladimir Putin gave direct orders to meddle in the 2016 U.S. election. Putin sought to damage Democratic presidential candidate Hillary Clinton and help elect her opponent, Donald Trump.

Given what President Obama knew and when he knew it, why, according to a former senior Obama administration official, did that administration, quote-unquote, "choke" when it came to responding to the Russian interference?

I'm about to ask General Michael Hayden, formerly the head of both the NSA and CIA what the White House could and should have done.

And Green Party candidate Jill Stein back in the news this week with a round of finger pointing over Hillary Clinton's loss. She's here to respond.

Plus in Wisconsin. The partisan voting map let the GOP win 48 percent of the votes, but they got 60 percent of the seats. Will this be the Supreme Court case that finally ends gerrymandering?

And Bill Cosby's assault case ended in a mistrial. And the prosecutor immediately declared that he would retry it. But isn't he forgetting all of the costs? Financial, human and otherwise.

But first, did we all misread a critical tweet about taping from President Trump? Let's review.

On Tuesday, May 9th, President Trump fired FBI director James Comey. And then three days later, Friday the 12th at 8:26 a.m., the president tweeted this.

"James Comey better hope that there are no 'tapes' of our conversations before he starts leaking to the press."

The tweet seemed to be a reaction to "The New York Times" story that day by Michael Schmidt under this headline. "In a private dinner Trump demanded loyalty, Comey demured." In that story, two Comey confidants offered an account of that dinner that was at odds with the president's version as he told NBC the night before. The president said loyalty was never raised.

Everybody assumes that in the tweet President Trump was suggesting that he had taped their conversations. And that he was threatening Comey that he might release them.

I have a different interpretation. Maybe red Trump wasn't threatening to release tapes. He was saying, hey, Jim Comey, you better not have taped me. It all depends on how you read the president's tweet. "Comey better hope there are no tapes."

I immediately thought of Lynne Truss's book, you remember "Eats, Shoots and Leaves," the "Zero Tolerance Approach to Punctuation"? Depending on punctuation, you can either be talking about a panda that eats both bamboo shoots and leaves, or a violent diner that eats, then shoots, then leaves.

On Thursday, six weeks after that first tweet, the president sent out a new pair of tweets. They said this, "With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are tapes or recordings of my conversations with James Comey, but I did not make and do not have any such recordings."

Notice, he's still not saying, well, I didn't tape Comey but he doesn't rule out the existence. He's saying he didn't tape him. But he's not ruling out the existence of other tapes or recordings, he's leaving open the door that somebody taped him. And then yesterday, the president appeared on FOX News.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: When he found out I -- you know, that there may be tapes out there, whether it's governmental tapes or anything else, and who knows, I think his story may have changed. I mean, you'll have to take a look at that because then he has to tell what actually took place at the events.


SMERCONISH: So now he's saying that his tweet forced Comey to be an honest witness but there's never been evidence of Comey as a prevaricator.

So put it all together. The president fired Comey. Then he told NBC he'd never ask for loyalty. Then he was contradicted by Comey with specificity in "The New York Times." He, the president, then worried that Comey had a tape. So he issued the tweet as a warning. And then only after the passage of 42 days when satisfied that Comey wasn't taping him because there were no further reports, he put the issue to rest.

It was never about him taping Comey. It was his concern that the reverse was true.

Of course, the whole Comey controversy is just one aspect of the Russia meddling investigation. And according to a detailed report by "The Washington Post," news of Russian interference first landed on President Obama's desk early last August when a CIA courier delivered an eyes only file directly to the White House.

[09:05:04] Inside was intelligence, a report, showing that Russian President Vladimir Putin personally ordered a cyber campaign to damage Democratic candidate Hillary Clinton and help elect Donald Trump.

So the administration was forewarned but was it forearmed? Did the president do enough, meaning President Obama, to head off the Russian meddling?

Joining me now the former head of both the CIA and NSA, General Michael Hayden.

General, allow me to show you a tweet from President Trump yesterday on this "Washington Post" blockbuster. "Just out, the Obama administration knew far in advance of November 8th about election meddling by Russia. Did nothing about it, why?" All caps. And then tomorrow he'll appear on FOX News with already this tape has been released. Roll it.


TRUMP: The CIA gave him information on Russia a long time before they even -- you know, before the election. If he had the information, why didn't he do something about it? He should have done something about it.


SMERCONISH: I mean, the president is the same guy who said tell may be the Chinese or it may be a 400-pound guy in New Jersey sitting in his bed. Is he trying to have it both ways like, hey, why didn't Obama do something while at the same time being dismissive of it?

GEN. MICHAEL HAYDEN, FORMER CIA DIRECTOR, FORMER NSA DIRECTOR: Well, Michael, I think he is. And let's keep in mind that he has never fully embraced the theory of the case that you just laid out there. That the Russians actually did this and it's up to him now to do some things about it.

Now, look, there's an element of truth, I think, in what President Trump says. I think the Obama administration was light in its response. It's not that it didn't do anything, it actually did several things to try to warn the Russians away from this kind of activity. But I think in retrospect even the Obama team thinks they should have done more.

But, Michael, one of the reasons they were reluctant to do more was the narrative that then candidate Trump had that the election was going to be rigged. And so any overt activity from the White House would have fed that narrative as well, and may have delegitimized the election in a different way. So even candidate Trump, there's some responsibility here for what happened.

SMERCONISH: In other words, the concern, if you buy into the narrative of the "Post" and I think it makes logical sense the concern on the part of the Obama administration was the political ramification of whatever they might do on the 2016 election. And the consequence was, we really didn't treat it, perhaps, like the national security matter that it was.

HAYDEN: I think we appreciated it as the national security matter that it was, Michael. The article in the "Post" yesterday just drips with urgency from the intelligence guys, from John Brennan and Jim Clapper. And they've remained urgent about this even out of government.

The problem was what the policy guys do about this? And again, I think we're agreeing they didn't do enough. I think they regret, I regret, they didn't do enough. But I understand why they were reluctant to be more active.

And look, look at the circumstances we have here, Michael. We have a political campaign and it's Mr. Trump's that seemed to legitimate chants of lock her up at campaign rallies, that praises WikiLeaks as a legitimate source of information, that claims that the election is going to be rigged.

Now I don't want to get into any formal witting collusion, but that may be all the collusion that the Russians needed to have the effect that the Russians wanted to have on our electoral process.

SMERCONISH: The lead of that "Post" story speaks of Putin's direct involvement, although it doesn't share exactly what's known of it. You ran the CIA, you ran the NSA, you know this personality of it. Does it comport with his MO as you understand it?

HAYDEN: It does. And Michael, I need to put the caveat out there. I've been out of government for years. I don't go back for briefings. I did read the very detailed article in the "Post" yesterday, and it does have a powerful ring of plausibility in terms of all of the elements in the article based upon my life experience, yes.

SMERCONISH: President Obama spoke, the date was October 18, right in the midst of the election and addressed some of the aspects of this. Let's take a look at what he said and then comment. Play it.


BARRACK OBAMA, FORMER U.S. PRESIDENT: There's no serious person out there who would suggest somehow that you could even rig America's election in part because they're so decentralized. And the numbers of votes involved. There's no evidence that that has happened in the past or that there are instances in which that will happen this time.

[09:10:03] And so I'd advise Mr. Trump to stop whining and go try to make his case to get votes.


SMERCONISH: But, General Hayden, President Obama surely knew at the time, according to the "Post," that the Russians were trying to tap into 21 different states' electoral systems and at a minimum to foment chaos if not to alter the outcome of the election to screw with us?

HAYDEN: I think that's all a possibility, Michael. So you had the president warning Vladimir Putin in a face-to-face meeting I believe in September not to meddle in the actual election process. On the margins of that meeting, the president said something I found striking at the time and now it makes sense. Out of the blue, he suggested that the United States has the greatest concentration of cyber power on the planet, both offense and defense.

I wondered who he was talking to, it's clear now he was talking to Putin. And I think the president was fairly firmly grounded in the bio diversity of the American electoral process I think does give it a fair amount of resiliency. So I understand why he said what he said but again, Michael, I return to the earlier point, I think even Team Obama now wishes they had been more forceful, more direct, more specific with the information that they did have in hand.

SMERCONISH: But what could the White House have done? What could the Obama White House have done differently?

HAYDEN: So what they did do is offer help to state election officials and probably because they weren't as forward leaning as they might have been in explaining the danger to state election officials. Telling them what we knew already. Most of them pushed back and didn't want to accept federal help on the grounds of some sort of federal meddling in what were state and local procedures.

So, again, Michael, being a bit more transparent. A bit more open. Maybe even a bit more -- can I say this -- alarmist? In terms of -- or alarming, in terms of what it was we were saying about the intervention.

Now we did some other things. We warned the Russians, according to the story, we quite visibly began to plant some things in Russian infrastructure. Now I don't know if that is true. But again, it has the ring of plausibility, demonstrating to the Russians so far and no farther, we have tools in this kind of dispute as well.

SMERCONISH: What concerned me the most from the story is the fact that it seems that when those in our political apparatus were in the loop, they were partisans first and Americans second. You know, it used to be that our partisanship ended at the water's edge and we'd be united against a common enemy like Russia. But in this case, if you read that story closely, there was a calculus going on in too many minds as to whether this would benefit their party or the other party.

HAYDEN: Michael, the saddest chapter in that long narrative yesterday was when the administration sent the experts up to the Hill to brief the senior leadership of American Congress, seeking some sort of bipartisan statement with regard to this and they couldn't get it.

The Republicans particularly backed away, speculating here, because they felt joining that kind of consensus might have hurt their candidate's chances. I don't know. But coming out of that meeting, you now have the administration pulling back, not being as forceful as I suggested they should have been, again, to avoid the appearances, that they were partisan and they were trying to rig the election. This is not our finest hour.

SMERCONISH: And finally, you will not offend me if the answer is no, but did I convince you with my opening monologue that perhaps everybody misread the intent of President Trump's tweet when he talked about Comey and the tapes?

HAYDEN: Michael, that was a very impressive workable hypothesis. I need to think my way backward now from your conclusion. I will tell you what struck me, you know the preamble there where he said well, I do not know who may have been taping and he talked about unmasking and surveillance and so.

I've got to tell you, Michael, in the lens I use to look at that, that was just one more example of the president for political convenience throwing his intelligence community under the bus. They were a political prop. For at a minimum he's trying to obfuscate what was going to be a giant climb-down in the back half of that tweet.

SMERCONISH: All right. I will take your qualified endorsement of my thinking, General Hayden. Thank you for that.

HAYDEN: Thanks, Michael.

SMERCONISH: What are your thoughts? What are your tweets? Hit me with something, Kathryn. What do we have? Facebook and Twitter. I'll continue to read through it.

"Smerconish, your opening commentary is disappointing. That is exactly what Trump's team counts on. #sad."

[09:15:04] Hey, Nicole, how many times do I have to say it? I don't offer commentary with an eye toward whether it helps or hurts the president. I call them as I see them, and I've offered you I think a plausible alternative.

Next, what do we have?

"Smerconish, why would Comey immediately write a memo after conversation if he had recorded it?" Well, it's because he didn't record it. He didn't record it. But President Trump comes from a place where he's suspicious that everybody is wearing a wire. So no, Comey didn't record it. I'm trying to get in the mind of the president and perhaps the president picks up that "New York Times" and he says, holy crap, look at the level of detail in this story. Was Comey wearing a wire?

One more, quickly. My favorite part of the show.

"Smerconish, you are just like the relevant of fake news. How about the good he has done. All negative with you. We are safer with Trump than Obama."

Atlantis1, there's a front page story in the "Washington Post" today that confirms that Russian President Vladimir Putin directly screwed with our election.

Now, sir, ma'am, do you want me to ignore that? Is that fake news? Come on.

Coming up, we all know about Michael Flynn's dinner date with Vladimir Putin. Guess who else had a seat at the table? Green party candidate Jill Stein, I'm eager to chat with her, next.


[09:20:35] SMERCONISH: There's been a whole lot of commentary recently as to the influence that 2016 Green Party candidate Jill Stein had on our election. Just take a look at all those headlines, as a matter of fact. I'm curious as to what she has to say about this and other current events. And I'm thrilled that joining me now is Dr. Jill Stein.

Dr. Stein, this "Washington Post" story today, this blockbuster that points a finger directly at Vladimir Putin for having directed the meddling in our election, I find to be pretty compelling of his involvement. Does it make you reconsider the dinner invitation that you received in 2015 and whether him giving you that platform was itself a form of meddling?

JILL STEIN, 2016 GREEN PARTY CANDIDATE FOR U.S. PRESIDENT: So, let's be clear, and I have not yet seen that article from the "Washington Post." But there's been quite a lot of evidence pointing to the hacking into our election system, especially voter registration, and also local election officials. There are grave concerns about the vulnerability of our election system. And that is not new. In fact, that's why I called for actually a recount so that we could examine in fact the voting machines and the software to know in fact because right now it's acknowledged that we've got a real problem here.

And whether it's the Russians, whether it is other hostile nations, whether it is other criminal networks we know that our voting system is wide open and vulnerable to all of it. So we need to get to the bottom of it and above all we need to start protecting our voting system right now. That means paper ballots because you cannot corrupt them. It's an enduring record. It means auditing the optical scanners so that we know we have an accurate count. And we can go back and recount it if there's a question about it.

And we need cyber security best practices at all levels of us our voting system. People can go listen to the testimony before Congress just last week by Alec Halderman, one of the foremost cyber security experts, it's not rocket science how to fix this. We need to make our system protected not just against Russian interference or Chinese or mafia but also against private corporations, for example, who control our voting software and you have a stake in the outcome of the election. This system needs to be protected so that Americans can have faith and confidence in it.

SMERCONISH: OK, I'm for all of that. But now take me inside the dinner you had with Vladimir Putin in 2015 and the prominence that it afforded you. My question is, was that in and of itself a form of meddling along the lines of, let me give some attention to Green Party candidate Jill Stein on any theory that any vote -- you know the theory. Any vote for Stein is a vote that otherwise would have gone to Hillary.

What was that dinner all about? Tell me about it.

STEIN: So, let's be clear, that was a conference. And that picture actually didn't really begin to circulate until long after the election. So it's not like it was a public relations bump. It essentially wasn't covered here in the U.S. There was media at that conference. And it was a day-long conference where my message was very clear. It was the message of my campaign, which was that we need a peace offensive in the Middle East.

Now this was not a message that was particularly friendly to the Russians. It was saying to them that we need to stop the bombing. They had just begun bombing in Syria. And I went to say that this essentially followed the catastrophic footsteps of the U.S.-Middle East war and that what we needed was to collaborate on a peace offensive with a weapons embargo with both the U.S. and the Russians bringing our allies into that weapons embargo as well as freeze on the funding of any countries, and that is on the bank accounts of any countries that continue to fund terrorist enterprises.

So unfortunately that message -- I would have loved for that message to have gotten out but there was basically zero coverage. It's now circulating. And it's funny, Michael, you have to ask why is that picture kicking up a storm right now? You know, I think it's very related to the fact that the Democrats are looking for someone to blame. You know, they're looking at Bernie Sanders.


STEIN: They're looking at James Comey. They're looking at me.

[09:25:02] Can they blame us for the loss of 1,000 legislative seats over the past 10 years? For the loss of two-thirds of governors? For the loss of the recent special elections in Georgia? I don't think so. I think the Democrats really have to look internally.

SMERCONISH: But I think --

STEIN: People have had it with being thrown under the bus.

SMERCONISH: Right. Look, they're in the worst shape since Reconstruction. The Democratic Party. So it's much bigger than whatever went on in 2016. No doubt. But I think many of us are now going back and we're -- as I like to say zaprudering (PH) every step of the way of the 2016 cycle.

And you know, Dr. Stein, the argument. Put up those vote tallies, Kathryn. Because I think she ought to have the opportunity to respond to this once and for all. Michigan, you get 51,000 votes. Trump wins by 10,000. What other states? Keep them rolling. Wisconsin, you get 31,000. Trump wins by 22,000. One more, the state of Pennsylvania, 49,000 for you, he wins by 44,000.

Will you once and for all respond to the idea that but for you Hillary would have been elected? STEIN: Absolutely. And thank you for the opportunity to get this

message out because the exit polls and the studies have made it perfectly clear and I know from conversations on the ground that Greens don't just vote for Democrats. In fact, the study shows 61 percent of Greens would have stayed home rather than have voted for either Donald Trump or Hillary Clinton. And of those that would go out to vote, over one-third of them would have voted for Donald Trump.

So wishing that pigs fly doesn't make pigs fly. So Democrats might wish and they might assume that they own Green votes, but they don't own Green votes. Candidates have to earn our votes. And Hillary Clinton did not earn the votes of Greens. And Hillary Clinton and Donald Trump did not earn the votes of neither Greens nor 45 percent of the American people who refused to vote for either of these two candidates who are the most distrusted and unliked candidates in recent history. People were clamoring for other choices.

SMERCONISH: But you can --

STEIN: Go ahead.

SMERCONISH: You can understand, looking at that data, you can understand how there would be an analysis that says Vladimir Putin was reading the tea leaves in the United States and thought, bring Jill Stein to dinner. Anything -- I know you had a meeting as well with Sergey Lavrov and that you went into Red Square and recorded those moments. Meaning anything he can do to give you prominence is going to pull from her. Despite what you just said. You have the final word on this.

STEIN: I also had a meeting with Jeremy Corbyn. I had a meeting with the deputy climate -- ahead of climate negotiations in Paris. So, you know, this is the job of candidates, is to represent people and important policy initiatives that are getting short-tripped. You know, for the students who are locked into a lifetime of predatory student loan debt, for workers who do not have adequate jobs, for people who don't have health care and deserve health care as a human right, which actually pays for itself, doesn't cost anymore.

These are critical to our future. And to get that 45 percent of people back into our elections and to get them voting we need to hear more voices and more choices. And thank you, Michael, for helping to make that happen a little bit today.

SMERCONISH: Dr. Jill Stein, thanks for being here. We appreciate it.

STEIN: Thank you so much.

SMERCONISH: Let me see more of what's going on, on my Facebook page and via Twitter. What do you got?

"Jill Stein was also in Putin's pocket. Putin is good at funding vulnerable puppets, a little praise some cash and they all go in."

Look, Sandy, I think it's a legitimate subject to go back and how often have we talked about Mike Flynn taking, what was it, 45K from RT, and the dinner. And there he is, and he's at the table. And all of a sudden, we're doing a second check now. We're saying, huh, Jill Stein was there, too. Why would Putin have invited her to dinner? Was that his way of trying to give her some prominence?

One more if we have time. "Smerconish, Dr. Jill Stein don't want to admit she got played by Putin. She was an unwitting tool to prop her up in the campaigns again Hillary Rodham Clinton." Look, we just went through that, Philip. Bottom line is, I think Jill Stein makes some sense when she says that the two candidates who were running were viewed in many circles as the most quad of the modern hero. And they were squaring off against one another and many people, there's no way they were going to vote for either.

Up ahead, when the Bill Cosby case ended in mistrial the D.A. made an immediate announcement that he would retry the comedian. Might he regret that snap decision? My thoughts are next.


[09:34:12] MICHAEL SMERCONISH, CNN ANCHOR: Immediately after the judge in the sexual assault case against Bill Cosby declared a mistrial last weekend, the prosecutor, D.A. Kevin Steel, announced there would be a retrial.


KEVIN R. STEEL, DISTRICT ATTORNEY, MONTGOMERY COUNTY, PA: We will evaluate and review our case. We will take a hard look at everything involved. And then we will retry it. As I said in court, our plan is to move this case forward as soon as possible.


SMERCONISH: Where Steel said we will take a hard look at everything involved and then we will retry it, perhaps he should have said, we will take a hard look at everything and decide whether to retry it.

First, Steel made that announcement without knowing the split among deadlocked jurors. One report now says there was a lopsided vote in favor of conviction.

[09:35:04] But another says there was more of an even deadlock with votes of 7-5, or 5-7. The quick decision to retry also raises some concerns that the prosecution has political overtones. Steel was elected over a former D.A. Bruce Castor partly on a pledge to prosecute Cosby, where Castor said there wasn't enough evidence to do so.

Remember, key evidence that Steel presented was testimony Cosby had given in his civil case that he only agreed to because Castor had decided not to prosecute him. In other words, if Cosby believed he'd faced the risk of prosecution, he would certainly have invoked his Fifth Amendment right and Andrea Constand would not have been paid. And Castor has said, that's partly why he choose not to pursue the criminal case, to let her have a compensable civil suit, which was apparently the case. Another consideration is the age of the evidence. The underlying events are already 13 years old. And the evidence will not get any fresher. It's a he said/she said without forensics.

One juror told the "Philadelphia Inquirer", quote, they should have left it closed. There wasn't enough evidence to move the case forward. No stained garment, no smoking gun, nothing.

Then, there's the cost, both financial and emotional. Judge Steven O'Neill noted that the first trial had been, quote, probably the largest undertaking in this county in terms of what it put on our criminal justice system.

In a post-trial presser, Steel said this.


STEEL: You can't put a price tag on justice. And if you do, you're saying that because somebody's wealthy or famous, that they don't deserve the same kind of justice that everybody else does.


SMERCONISH: But actually, only a defendant with Cosby's wealth could sustain two complex trials with high-priced legal talent. Anybody else might be tempted to take a plea agreement regardless of whether the facts warrant.

But here's the biggest consideration of all, the reach of another hung jury or even a defense verdict, on victims of sexual assault. What impact might that have on future victims if they see an unsuccessful prosecution of a defendant in a high-profile case? Might it have a chilling effect against reporting?

One of Cosby's alleged victims disagrees with me in this respect. And told me there is value in the prosecution of this case because of the conversation that it has begun.

Last week, before the verdict, here on CNN, I interviewed Victoria Valentino, one of the many women who have come forward with claims of sexual assault against Cosby. Valentino asserts that Cosby raped her in 1969 when she was 26 and grieving the loss of her 6-year-old son who just drowned in a swimming pool. She attended every day of the Cosby trial. So, after the mistrial, I had her back, this time on my radio show, and asked about the pluses and minuses of living through a retrial.

Here's what she said.


VICTORIA VALENTINO, COSBY ACCUSER: Well, you know, the conversation is open. It's on the table. We're talking about it. People are coming out of the woodwork because we spoke out. And, suddenly, there are so many people coming to us through private messaging on Facebook, through finding us on e-mail, telling us about their own personal stories of rape, incest.


SMERCONISH: But if the next trial ends the same way, I asked, might it send women the message, you can't win even if you do come forward?


VALENTINO: It's often the reason why women stay silent. They're afraid, they feel not believed. They feel shamed. They feel dirty. They feel humiliated.

And they're just bottom line afraid to speak out for not being believed. And then, of course, historically, the legal system has re- victimized them, the victim.

So, hopefully, we will have a shift. All I can say is that the conversation is open, on the table. We're talking about it. And it's not going to go away. The work goes on.


SMERCONISH: She raises good points.

Don't misunderstand. I'm not judging Constand, Cosby nor second- guessing the jury's deliberation. They saw the evidence. They weighed the testimony of the witnesses they found inconclusive.

I'm just saying the decision of whether this case should be retry said complicated. Of course, if it retrial ends in a guilty verdict, nobody is going to second-guess the D.A. But that's about the only certainty that remains in this case.

Coming up, a 200-year-old mythical creature stalks the Supreme Court. Beware of the gerrymandering, my friend. That's next.


[09:43:58]SMERCONISH: Illegitimate, seriously harmful, incompatible with democratic principles and a manipulation of the electorate. That's how various Supreme Court justices over the past 30 years have described the issue of gerrymandering, the redrawing of electoral maps to guarantee that one party (AUDIO GAP) these tricks.

It would be unconstitutional to draw boundary lines based on race or ethnicity. But so far, they've gotten away with it based on partisan lines. The key question is, how do you come up with a manageable test?

As I've shown before, this ends up with map shapes that are incredibly convoluted and are a core reason why we find ourselves in this intractable partisan divide.

Nevertheless, in all of the cases brought to the court, so far, the court has never been able to figure out a way to decide which maps are valid and which are unconstitutional. And perhaps that's about to change because this year, this case is going to the Supreme Court of the United States.

This week, the justices announced they will review a case in Wisconsin that struck down the redistricting map that the GOP-controlled legislature created after the 2010 census.

[09:45:02] And here's why: in the 2012 Wisconsin statehouse race, Republicans only won about 48 percent of the popular vote statewide, but they received a super majority of 60 seats.

The challengers in the new case Gill versus Whitford say they've found a way.

And joining me now is one of the lawyers arguing this before the Supreme Court, Nicholas Stephanopoulos, who is a professor at the University of Chicago Law School.

Professor, first question before we get to your methodology, why? Why should gerrymandering be viewed in the same way as if it were racial or ethnic in its purpose?


We're not arguing that partisan gerrymandering ought to be treated in exactly the same way as racial gerrymandering. We're not arguing that party is equivalent to race.

If you're looking for a doctrinal analogy for our theory, it's really one person, one vote, where 50 years ago, the court said that big variations in district population aren't constitutional. Our whole test is based very closely on the framework the courts have used for decades to decide one person, one vote disputes.

And I note also that there's another similarity here between partisan gerrymandering and one person, one vote. Fifty years ago, rampant malapportionment was a really serious threat to American democracy and the Supreme Court intervened and put an end to that threat.

Today, partisan gerrymandering is also something that threatens to undermine basic democratic norms. And that's why again, we're hoping that the court will step in and fix a really serious democratic malfunction.

SMERCONISH: Do you anticipate that this issue in the Supreme Court of the United States lines up with the usual 4-4 liberal/conservative split where Justice Kennedy is somewhere in the middle making the decision?

STEPHANOPOULOS: It very well may. But it's worth noting that partisan gerrymandering has not always been an issue that follows the predictable ideological cleavages on the court. In the '80s, President Reagan and President Bush you'd to rail against democratic partisan gerrymandering. Arnold Schwarzenegger in California was a Republican who pushed for redistricting reform.

And in the first partisan gerrymandering case that the court ever took in 1986, the key opinions that recognized the theory were written by center-right justices not by liberals. So, today, the issue may fall along more predictable cleavages with Justice Kennedy in the middle. But this hasn't consistently been the case and it shouldn't be the case.

SMERCONISH: So, this is the most difficult question of all. In 60 seconds, are you able to lay out the solution you've devised where the court has said in the past, well, we don't like it, but how are we going to fix it -- what's your fix?

STEPHANOPOULOS: So, we have a three-part test that we think is workable and the lower court agreed is workable.

Prong one, was a map passed with discriminatory intent? So, in order to benefit one party and handicap another party.

Prong two, has the map exhibited a large and durable discriminatory effect? And this is where measures, or metrics of partisan gerrymandering like the efficiency gap come into play.

And then prong three, is there any kind of legitimate or neutral justification for the large, endurable partisan effect that we've seen?

So, that's the whole test, hopefully, in under 60 seconds.

SMERCONISH: You are able to reduce to numerical a quantitative score whether gerrymandering has crossed the line in a particular state. Is that it in a nutshell?

STEPHANOPOULOS: That's the key to the second prong of the test that asks whether the map has shown a large and durable discriminatory effect.

SMERCONISH: Well, I hope you're successful. I mean, my cards -- look, my cards are on the table. I think that gerrymandering needs to be reined in. Both parties have done it. They've done it for a long, long time, all the way back to Elbridge Gerry.

But we are also self-sorting, you know? It's not just gerrymandering, there's a self-sort that is taking place in this country where we're associating I'd say too much with the like-minded. So, it won't be a panacea if you're successful.

Good luck, Professor Stephanopoulos.

STEPHANOPOULOS: Thank you very much.

SMERCONISH: Still to come, your best and worst tweets like this one --

Smerconish, if SCOTUS accepts this formula for gerrymandering, then they're writing law and that's not what they are there to do.

[09:50:01] Well, I think, Tom, he -- hey, by the way, Tom Brady? You throw a hell of a spiral. It's not that Tom Brady? I think he makes a compelling argument about one person, one vote. I

think it's violative of the equal protection clause of the Constitution. And I think it needs to be corrected.

Back in a sec.


SMERCONISH: Hey, I'm telling you now, if I'm not here for the Fourth of July weekend, it doesn't mean that I've been fired -- not yet.

What do we have, Kathryn (ph)? Show me some tweets and Facebook comments from the show.

Smerconish, you pretend to be impartial, but it's so obvious you're out to hurt POTUS. If Obama did what President Trump did, you wouldn't report it. Oliver Black Taylor.

Mr. Taylor, sir, were you not tuned in to the first portion of the program, where I discussed the way in which the Obama administration was flat-footed in their response to the Russian meddling?

[09:55:08] And what you heard me say is, that President Trump can't have it both ways. He can't on one hand say, Obama did nothing, and then on the other hand himself be dismissive of it. Now that's not bias, that's not favoring one or the other, that's criticism that I just offered of both of them. Something that I'll bet you are reluctant to do. If you're not calling it out on both sides, you're part of the problem.

Next. Somebody said that I'm too nasty in my responses, I'm just being direct.

You give Trump too much credit. Everyone seems to know he was trying to influence Comey except you.

Hey, Hunt, I may be a knucklehead. I just don't feel obligated to buy into the party line on all these things, and from the minute I saw that first tweet about Comey, Comey better hope there are no tapes, I said to myself, that's perhaps the president looking at the newspaper, seeing the level of detail and deciding, hey, that son of a gun might be taping me.

One more, we have to wrap, oh, sugar, OK. OK, gang, there you go.

What's justice worth? Should alleged criminal Cosby walk free because the cost is too high? Notice the word "alleged", he's been convicted of nothing.

OK. I'll see you soon. Thanks for watching.