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SMERCONISH

"Hyperventilating" Over Mueller Grand Jury?; Trump Getting Things Done Despite The Chaos?; Why Does Mueller Need Protection From Firing?; Can President Trump Take Credit For Strong Economy? Aired 9- 10a ET

Aired August 5, 2017 - 09:00   ET

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


[09:00:00]

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world.

Another wild week in Washington winds down, one in which we learned that Special Counsel Robert Mueller has empaneled a grand jury to investigate Russian meddling. My take on why that's no surprise. Jeff Greenfield is here to discuss.

And might protecting Mueller's probe be that which finally unites Republicans and Democrats. I'll talk to Senator Chris Coons about the bill that he is co-sponsoring.

Plus, despite all of the dysfunction in D.C., the president has been bragging about the record-breaking Dow Jones highs and the latest jobs numbers. How much credit is rightfully his? We'll discuss.

And meet the Michigan man who was arrested for drunk driving in his own driveway. Can that really be illegal?

Plus, with affirmative action under fire, Harvard's new crop of students is predominantly nonwhite for the first time ever. But are there limits on Asian-Americans. Meet the Indian-American who got into med school by pretending to be black.

But first, for many the most jarring headline this week was "The Wall Street Journal" revelation on Thursday that Special Counsel Robert Mueller has empaneled a garage jury. The "Journal" said this is a sign that his inquiry was, quote, "growing in intensity and entering a new phase."

However, for those of us in the legal profession it was more akin to that scene in Casablanca, where Renard pretends to be shocked. He's shocked to learn that there's gambling in Rex Cafe.

This tweet from former U.S. attorney for the Southern District of New York, Preet Bharara, said it well, quote, "Not sure why all the hyperventilating regarding Russia grand jury. Mueller hired 16 prosecutors. Of course, there would be grand jury. This will take time."

He is right and to his point, it would be prosecutorial malpractice for Mueller not to do so. But that does not itself mean that any indictment will flow from his inquiry. Every grand jury investigation does not end in an indictment.

And a grand jury investigates long before it indicts if it ever indicts. It's the way that prosecutors compel the production of documents and testimony that along with evidence obtained by other means will show whether anyone should be charged.

The proceedings are secret by law, precisely because no charges may be brought and the mere fact of the investigation shouldn't taint those who have been investigated. This is the way discovery in a criminal case unlike a civil case is regularly conducted.

Only a grand jury investigation is much more powerful than any civil comparison. A federal grand jury subpoena can be used anywhere in the country and can reach American citizens anywhere in the world.

Foreign nationals within the United States are also within reap of the grand jury subpoena power. That's another reason that grand jury investigation seems to suit the probe into the Russian meddling.

And here's something else, witnesses must respond to a grand jury's questions unless invoking the Fifth Amendment right against self- incrimination. Whether a witness invokes that right is itself valuable information for a prosecutor.

Witnesses can consult with lawyers that are not represented in front of a grand jury when testifying. And even when a witness invokes the Fifth, prosecutors can compel testimony by immunizing that witness.

There's one more consideration. Obstruction of a federal grand jury is serious stuff. People can and do get charged with that crime. So, this is a very powerful way to obtain information in a criminal investigation.

But the mere existence of a grand jury does not necessarily foretell an indictment. That comes if and only when 12 of the 16-person forum votes to return what's called a true bill, based on the belief that there's probable cause in the government's case.

Yes, there's an old legal adage that if asked a grand jury would indict a ham sandwich, but the reality is that more often than not, nothing happens, which is why secrecy is usually of paramount importance.

And why the leak that this is happening essentially is meaningless until and unless there's an actual indictment.

Joining me to discuss all of the recent news and more, veteran journalist from ABC, CBS, and here at CNN, Jeff Greenfield. Jeff, if I had to sum up these first six months with an acronym, it would be OMG as in oh, my God, because every day seems to bring a different banner headline.

But my question for you is to step back for a moment. Is the president actually more effective than he's given credit? JEFF GREENFIELD, FORMER POLITICAL ANALYST, CNN, CBS, ABC: The administration is and I think that's an important distinction. I've had the sense, when I turn on the news, and I do that less and less, it's ground hog day. Every day there is an OMG breaking news, Martians have invaded, my God, my God.

But if you look at what the administration is doing, whether it's specifically directed by Trump which given his policy jobs may not be the case. A lot is being done.

[09:05:06] The fact that he outsourced the judiciary picks to the federal society and the fact that dozens of nominees are now being cleared now with the health care bill.

It means that at the end of this year, he will have or his administration have reshaped the federal bench for years, maybe decades to come. As a lawyer, you know the courts of appeals decide the vast majority of these case are substantially the right on business regulation, on the environment, on issues of race, on issues of crime.

The 180-degree turn that's being engendered by his appointees, by Attorney General Sessions is going to leave a lasting mark however Trump's poll numbers are eroding. However much people are waiting for him to be impeached, indicted, 25th amendmented, and I think that's something people have to keep their eye on.

SMERCONISH: Our colleague, Jeff Toobin, wrote on exactly the subject you first raised. Put it up on the screen from "The New Yorker," he said, "While the public watches Trump through White House staff members, his administration is humming along nicely in filling federal judgeships with the enthusiastic assistance of the Republican majority in the Senate."

I say it every four years when it's time to vote, arguably the greatest power that a president possesses is to constitute the federal bench and people don't seemed to go out and cast ballots on that. But that's precisely what he's been able to do thus far.

GREENFIELD: Look, Anthony Kennedy is still a Supreme Court justice. Ronald Reagan who appointed him left the presidency 29 years ago. That's the kind of power. As I say, we focus sometimes on the Supreme Court, but those -- especially those courts of appeal judges have enormous power, and it's beyond that.

The Voca rule that was imposed on banks, I said, you guys cannot be this reckless. You have to have a certain amount of money on him. The Trump administration is looking to weaken, erode, abolish that rule.

That could have enormous consequences. It's not as exciting as what you what you referred to. Grand jury convened. Perry Mason will be on the case. And I think that's something that we just have to keep our eye on is how much things are going to change even if Trump descends further in the polls. SMERCONISH: It makes me wonder if it's all deliberate, if the daily tweeting and all that occupies us, the ball of yarn on a daily basis that gets thrown in for media playing and consumption, because he well knows -- he knows that the cabinet is doing that which he has charged them with getting done.

GREENFIELD: I think there's a -- whether it's a reasoned approach or kind of instinct that he has, look over there, even to engender controversy. I think one good example was the tweet he doesn't want any more transgender people in the military.

Now, that had two things, that created a new controversy, but it also was part of another pattern, a clear appeal to the cultural social right that has been going on because I think he knows or just instinctively knows that that basis is the one that he has to keep.

So, on transgender issues, on affirmative action, for instance, on a whole bunch of -- on crime, the fact that this administration has moved right, when after all, Trump in his private citizens days, you know, he was pro-choice, he was anti-gun, he was a very different kind of person.

But I think he now understands that by constantly now feeding the right wing of his constituents, he's trying to keep them in place to make up for the fact that in other parts of the constituency, he's becoming less -- I think the health care debacle really hurt him among some of his own base.

Lower-income white folks in rural areas. So, I think some of this is, as I say, I don't even know if it's an instinct that he has on how to create controversy. And the other part may be a shrewd notion of how he has to play politics in an era where people are starting to have doubts even people who have voted do for him.

SMERCONISH: And finally, I think you've just given an explanation as to why we saw him Thursday night in West Virginia, salving that base in a way to keep them all in a tent because that's the constituency that matters the most?

GREENFIELD: Yes, I mean, West Virginia was either the first or second biggest majority for Trump. It's not that he has to shore up, but he's speaking beyond West Virginia for those people saying I'm still one of you. You still have to distrust the fake news media.

Why aren't they going after Hillary Clinton, I think those are quite deliberate efforts to hold on to the core of his base. And to just come back to what we talked about earlier, I think for viewers and people who are interested in public policy, you can't be distracted every time, forgive me, a cable network goes breaking news, grand jury convened.

You know, arrest imminent and focus on what is changing in this country because he and his administration are changing a lot, whether you like it or not.

SMERCONISH: Which is why I sought to educate about what the grand jury news really means or doesn't mean at the outset of the program. Jeff Greenfield, thank you so much for that.

GREENFIELD: OK, Michael.

[09:10:09] SMERCONISH: Ever since Special Counsel Robert Mueller started investigating Russia's involvement in the 2016 election, there's been speculation that President Trump could try to fire him especially if he started digging into the Trump finances.

So, in an unusual display of bipartisanship, Republican Senator Tom Tillis and Democratic Senator Chris Coons have come up with a plan to try and protect Mueller. Senator Coons is joining me now.

Senator, absent the legislation you have proposed what if any review is there of a president firing a special counsel?

SENATOR CHRIS COONS (D), DELAWARE: The reasons that Senator Tillis and I introduced the bill before we went out for August was to make sure that there had been legislative action on a bipartisan basis to shore up the fact that there isn't currently in place a review mechanism either to block the firing of the special counsel or allow for his reinstatement.

Senator Graham and Senator Booker introduced a bill that would protect the special counsel from being fired. We introduced a bill that would block him from being fired with some remedy of reinstatement.

In both cases, this is a bipartisan effort to strengthen the special counsel who enjoys strong bipartisan support.

SMERCONISH: What's the likelihood, "A" that you get it passed? "B" that he would sign it?

COONS: Well, one of the things we just saw, that I think was an important political development, was the signing by President Trump of a strongly bipartisan Russia sanctions bill. I'll remind you that in signing that bill last week, President Trump didn't attack Russia for having interfered in our 2016 election.

Instead, he criticized the Congress. That bill came out of the Senate 97-1. So, I think it is possible that widespread concern that Special Counsel Mueller have the independence, have the opportunity to complete this investigation, will lead to this bill being taken out.

Senator Tillis and I were talking this morning, we both reached tout our colleagues and we're getting early expressions of enthusiasm and support. And I know Senators Graham and Booker are working this issue as well.

SMERCONISH: But in the end, Senator Coons, you will be asking the president if you can get it through the House and the Senate to sign away his right to fire Mueller potentially?

COONS: That's right. I'll remind you, Michael, there is something called a veto override. I think the reason the president signed that Russia sanctions bill was because it was clear at the time, given the numbers that he'd be humiliated by having his veto overridden if he had tried to veto it.

It might be the same case with this, we don't know yet. What's important is that Bob Mueller be allowed to continue with his independent investigation without interference or harassment by the president.

SMERCONISH: Do you think, Senator Coons, that the revelation this week as to the existence of a grand jury, the fact that a grand jury has been empaneled by Special Counsel Mueller to take a look at the Russian meddling issue that that in and of itself inoculates Mueller from being discharged?

In other words, now the whole world knows that there is a grand jury. This is a serious investigation and 16 lawyers have been assigned to the case. Does that in itself make it much more difficult for the president if he wanted to, to get rid of Mueller?

COONS: Well, I think it makes it harder for the president to continue saying that this is fake news. That this is nothing to the investigation. That it's, frankly, sort of gone offer the rails. As you noted earlier and as Jeff greenfield was just talking to you about, it's just ordinary course of business for a federal investigation.

But the president and folks around him must be much more nervous now because in the hands a skilled senior federal prosecutor like Bob Mueller and his significantly skilled team. Now, the federal grand jury say powerful tool. As you know, they subpoena documents.

They interview witnesses understand oath, but they can and not always issue indictments. So, it does signal that this investigation has entered its next phase. It does show that it's serious and the likelihood that there would be swift bipartisan pushback in the United States Senate if the president were to abruptly fire Bob Mueller without cause.

SMERCONISH: Finally, respond to the conversation I had with Jeff Greenfield about the OMG nature of this administration that every day brings a new stunning headline. And yet by a number of different indices, the president and his administration are being effective?

COONS: That's absolutely right. The average American is interested in jobs, in national security, in seeing health care fixed, and seeing their taxes go down and the economy go up. They want to know that we're able to work together and solve problems in Washington.

And one of our concerns is that the Trump administration continues to fill judicial vacancies and continues to get senior positions filled in the administration and continues to advance one of the most conservative agendas we've seen since the 1920s without being significantly impeded.

[09:15:09] It's important for folks who watch your show and folks who look to be better informed and engaged in politics to realize there's substantive important fights going on in Washington for which sometimes the breaking news, the cable news coverage, is say distraction.

We've got very difficult and important things going on in Washington. I'll remind you, Justice Neil Gorsuch will sit on the Supreme Court likely for the rest of my adult life.

And there are hundreds of other positions that are moving forward under this administration and they're taking initiatives, in immigration, in foreign policy, in health care, in tax policy that are well worth are being engaged and pushing back again.

SMERCONISH: Senator Coons, as always, thanks for being here.

COONS: Thank you, Michael.

SMERCONISH: What are your thought, tweet me @smerconish or go to my Facebook page. I'll read some responses during the course of the program. What do we -- Smerconish always biased for or against Trump. Too balanced.

I don't know, James, you're throwing me for a loop. Am I biased for or against him? I try to play it down the middle. Watch the whole show. Give me another one.

Smerconish, do you think that the base is shrinking since the end of July? I think there has been to use the Seinfeld expression some shrinkage in the base, but I don't think there's been enough shrinkage that he's yet jeopardized to standing or get ready for it a re- election.

One more if I have time for it. Jeff Greenfield is dead right, Michael, Trump is playing purely to his base. Forget about everyone else. Jimmie, the conversation really was focused on the point that while we get caught up in the daily distractions, and they're important, believe me. There's a bigger picture out here. As a matter of fact, I'm about to talk about it.

Up ahead, the Dow rallies to its eighth record close.

Plus, a major milestone for President Trump, 1 million new jobs created on his watch. How much credit does he really deserve?

And meet the man who is being charged with drunk driving without ever pulling out of his own driveway.

(COMMERCIAL BREAK)

[09:21:21]

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: The stock market reached yet another all-time, in history, all-time high today.

(END VIDEO CLIP)

SMERCONISH: That was President Trump at a rally in West Virginia Thursday night. The stock market rallied more on Friday. The Dow closed at its eighth straight record high. The president hailing yet another bumper jobs report as well, and a million new jobs have been created on Donald Trump's watch.

Meanwhile, unemployment is ticking down. So, how much does this have to do with his presidency? And what else does it play in the economy?

Austan Goolsbee was President Obama's chairman of the Council of Economic Advisers, and is professor of economics at the University of Chicago. Ed Canard is the author of "The New York Times" bestseller, "The Upside of Inequality." He's a visiting scholar at the American Enterprise Institute and former managing director of Bain Capital.

Austan, if I had said to Secretary Clinton before election day, here's where you will be as president six months in, 209,000 jobs created in the latest report, a million on your watch, 4.3 percent unemployment, the Dow at 22,000 and consumer confidence at a 16-year high, I think she would have said, wow, I'll take it. What a great record.

AUSTAN GOOLSBEE, FORMER CHAIRMAN, COUNCIL OF ECONOMIC ADVISERS UNDER OBAMA: I think she would say I'll take it, but that would be just a perfect continuation of the previous nine months before that. I mean, if you look at the job creation rate, it's actually slowed a little bit. We've added a little over a million jobs the last seven months.

We've added about 1.2 million jobs the seven months before that. So, they haven't done anything to mess it up. But, as you know, most of what happens in the economy has nothing to do with Washington. The stock market is up.

The stock market is up in percentage terms a little less than it was up at the beginning of the last two presidencies, Obama and Bush. So, I think we're basically the same place that we've been for the last six or seven years which is growing at a modest rate with pretty decent jobs numbers and the stock market has been going up.

SMERCONISH: Well, I was simply seeking to establish the baseline that things relative to the economy seem to be going well. Now to the question, Ed, of how much credit does he deserve for that?

EDWARD CONARD, FORMER MANAGING DIRECTOR, BAIN CAPITAL: Well, I think you have to divide it into two. In the short run, he can't have much impact on the economy, he's only been in office six months, but he can have an impact in the long run. I think you see that reflected in the optimism of the stock market.

The reason for that is because the Obama administration was horrible for growth. It imposes enormous tasks and regulatory burden. We never rebounded from the great recession. We had mediocre growth afterwards.

Productivity which was robust for the 25 years prior to the Obama administration fell to a half a percent a year and never recovered. I mean, that is a killer for wage growth.

I think that the market recognizes that the Republican administration has a lot of control over the regulatory burden, even if they accomplish nothing else. And that could have a significant impact on long-term growth, even if you're not going to see much of it in the short term, I agree a lot of it's baked into the cake.

But I think when you look at interest rates have ticked up, consumer confidence is an all-time, you know, soaring relatively higher than it was in 2007. Stock market is up almost 25 percent.

Those are people looking forward to the future and seeing more growth than they were going to see under a Clinton administration.

GOOLSBEE: I mean -- that's a fantasy.

SMERCONISH: Austan, there seems to be no doubt in the president's mind as to the level of credit he deserves.

[09:25:09] GOOLSBEE: Correct.

SMERCONISH: Take a look at the tweets that he has recently sent on this subject. Foxconn spending up to $10 billion in Wisconsin. Consumer confidence 16-year high, 3 percent GDP. Excellent job numbers, many jobs stifling regulations, continuing to fall. Does he not have a point in some of what he's arguing, Austan Goolsbee?

GOOLSBEE: No, obviously, he doesn't have a point. The stock market almost tripled under Barack Obama. You saw no praise of hey, let's look at the stock market as a measure of what people think how the economy is doing.

It's only once Donald Trump comes into office and the stock market rises that they say, look, the stock market's up, that's because of Trump. Again, if you look at the jobs numbers. We're adding jobs at approximately the same rate, a little slower than we were under Barack Obama.

When they did it under Obama, the president of the United States now, you'll recall, said that jobs numbers are fake. The economy is not adding jobs. He takes office, adds fewer jobs and says look at the jobs numbers. They look incredible.

I mean, this whole thing is a fantasy in which they cherry pick only numbers and try to take credit for them.

SMERCONISH: Ed, I want to show you a graph. A graph that shows the modern presidents and the performance of the S&P 500. Can we put that up? I mean, to Austan's point, Barack Obama had 22 percent and change growth in his first month. Papa Bush was at 20.7 percent. There you see President Trump in third position not bad but not as strong as Obama after six months. Respond to that data, Ed.

CONARD: Sure. Often there's administration changes after we go through a recession and so you have to take into account the circumstances that each one is under. So, to say that the stock market rose under President Obama is a little disingenuous because, of course, it had crashed and burned in the financial crisis. It was gone awry. It topped at about 18,000 and stayed there since about the end of 2014 until election, and since the election a very short period of time. When the economy was very robust, we're no longer in recession.

It's now where it in close to 25 percent. Similarly, on job creation, at 10 percent unemployment and you're creating jobs at the same rate that the president is creating them today, and I'm not giving him full credit after six months.

But at the same rate when employment is close to 4 percent. It's easy to create jobs at 10 percent unemployment, it's very difficult. What you want to see at this point and the way we ought to measure the Obama administration is we should be seeing wage gains now.

And even though we're still seeing job growth eight years after the recession, we're not seeing any wage gains because the productivity has fallen to 0.5 percent a year. Why has the productivity fallen to 0.5 percent a year?

Because of the enormous regulatory burden that the Democrats imposed on the economy in the first two years of the Obama administration. We grew at 2.5 percent a year productivity for 25 years part of that.

After that, it grew at 3 percent in those two years, and since then it's growing at 0.5 percent and never recovered. A half a percent is a disaster for wages.

SMERCONISH: Gentlemen, I wish we had more time. But we don't, Austan Goolsbee and Ed Conard, I'll simply say that I find it interesting that those indices that people want to discount when it doesn't suit their interests are the first that they embrace when the numbers seemed to tell the story. We hope we said some light on at least the debate.

Thank you both for being here. Let me check in on my Twitter and Facebook pages. What do we got? Smerconish, U.S. economic growth is limited by the lack of adequate workforce. U.S. needs new immigrant workers.

You know, Kent Morlan, I'll say this, I have always found that the risk taking that is exemplified by those who come to the country and risk everything to be here are the same skill sets that make for good entrepreneurs.

So, my belief is that we always need a steady stream of immigration and people do need to play by the rules. Wall Street and companies raking in but working people still in the same boat, Smerconish.

Colleen, you make a good point and shame me for not having raised this. Fewer Americans have ownership stake in the stock market. So, you know, less are participating in what I have just shown you and I fully recognize that.

The economy is just one reason why President Trump won the election. For an in-depth look tune in Monday night 9:00 p.m. Eastern for a CNN special report called "Why Trump Won." It's reported by CNN's Fareed Zakaria.

Up ahead, house arrest. You're going to meet the man who is being charged with drunken driving in his own driveway.

And with emotions high about affirmative action, Harvard under fire for allegedly limiting the number of Asian-American students that it admits. I'll speak to one man who fooled everybody thinking he was African-American so that he could get into med school.

(COMMERCIAL BREAK)

SMERCONISH: When it comes to college admissions, how much of a role should race play? That question back in the news this week. For the first time in Harvard University's history, the majority of students accepted into the incoming freshman class identify as nonwhite, 58.8 percent to be precise.

But at the same time came news that the Department of Justice is investigating allegations the school is denying places to qualified Asian-American students.

[09:35:05] Vijay Jojo Chokal-Ingam, now, the head of admissions consultant at Interview SOS has a unique experience with this topic. An Indian-American, he realized the only way that he would be accepted at med school would be to pass as black.

He chronicled his experiences in his book "Almost Black. The True Story Of How I Got Into Medical School By Pretending To Be Black." Vijay Jojo Chokal-Ingam joins me now. So, you were studying statistics at the University of Chicago, and you say to yourself, I don't stand a chance with my 3.1, what did you do?

VIJAY JOJO CHOKAL-INGAM, POSED AS AFRICAN-AMERICAN TO GET INTO MED SCHOOL: Well, I shaved my head, I trimmed my eyelashes and I decided to join the Organization of Black Students so I could apply to the medical school as a black man. I also used my middle name Jojo.

I subsequently interviewed at medical schools across the country and managed to get wait-listed at the Washington University and the University of Pennsylvania, then ranked the third and fourth best medical schools in the country and got into St. Louis University School of Medicine despite the fact that my pitiful 3.1 GPA was dramatically lower than their average of 3.7.

Now, I wanted to mention a statistic you mentioned earlier in the program which is that the majority of Harvard is now a minority, and I don't think that's true. I think that's very deceptive because I think you're forgetting about the Pocahontas factor.

And that is that there is a large number of people who are whiter than winter in Alaska, who poses as minorities based on flimsy reasons, and as a result, it skews the statistics because they know that it can improve their chances of admission. So self-reporting of statistics that are minority, I don't think that's necessarily the best data to use.

SMERCONISH: So, Vijay, what you're saying is that you didn't just check a box. You went full-on tootsie.

CHOKAL-INGAM: Yes.

SMERCONISH: And there are others who may not adopt the personification of a particular group? But they are checking the same box in the same way.

CHOKAL-INGAM: You know, I have so many clients who, you know, they have an African-American great, great grandfather. Their great, great grandmother was Hispanic or something like that and for very flimsy reasons they call themselves minority because they know it's going to improve their chances for admissions.

So we cannot ignore the Pocahontas factor when we look at the statistic, that 51 percent of people at Harvard are saying that they are --

SMERCONISH: Well, listen, because you are using the nickname, let's go there. You've said that what Lincoln did vis-a-vis slavery, Trump will do vis-a-vis affirmative action. Explain.

CHOKAL-INGAM: I believe that President Trump, by appointing conservative anti-affirmative action justices and by using the Justice Department to go after the colleges and universities, I believe that he will end affirmative action like Lincoln ended slavery.

As you know, Bob Jones University, many years ago, lost its nonprofit status because of its racist policies. Similarly, when it comes to the issue of affirmative action, the colleges and universities have pleaded guilty as charged.

They publicly endorsed racial discrimination in the form of affirmative action in the Fisher case. Therefore, the Trump Justice Department could use, with the Supreme Court, could effectively force the universities to end their racist affirmative action policies by forcing them to lose their federal funding. So, as I said, President Trump will end affirmative action like Lincoln ended slavery.

SMERCONISH: And I want to put on the screen a pie chart that shows the breakdown of this incoming class at Harvard. I want to ask you a question, 22.2 percent Asian-American, how many Asians are too many Asians for the Harvard incoming class?

Should there be any limit whatsoever? What if on the merits if you go by GPA and SAT score you could fill the entire class at Harvard with Asian-Americans, should they do so?

CHOKAL-INGAM: First of all, there is the multifactorial admissions process. There are nine criteria including grades, test scores, letters of recommendations, and essay. So, I'm not saying that grades and test scores should be the only consideration.

The second thing is data can easily be manipulated on the CFHR holder, but the simple point is as an Asian-American, it is harder to get into college or graduate school than any other racial category. In every place where the data is available, it is consistently harder for an Asian-American to get in. I used the example earlier of medical schools, admissions where it was 50 percent easier to get into medical school as an Asian-American compared to an African-American.

So statistical data, there is no rationalization for racism. Affirmative action is a system of legalized racism. It's a racial classification system that changes peoples' chances of admission to college or graduate school. And there's no justification for it.

[09:40:13] But Vijay, you understand the point that I'm trying to make, which is to say that from the perspective of the admissions office, you know, they are seeking to assemble a diverse student body.

And if Asians on the merits could dominate the class, they might not want to do that, because that, therefore, detracts from the ability of having equal representation of all groups. You got the final word as long as you make it quick.

CHOKAL-INGAM: I'm glad that you brought up that point. I had the opportunity to go to UCLA, which is a school that doesn't practice affirmative action in admissions. We had a diverse class of African- Americans, Hispanics, Asian-Americans, and white with a rich educational experience without practicing racial discrimination in the form of affirmative action. So, I don't want anyone to believe that affirmative action racism is essential to a good education.

SMERCONISH: Understood. Vijay Jojo Chokal-Ingam, by the way, Mindy Kayling's (ph) brother. Thank you for being here.

What are you all thinking @smerconish and Twitter. We run the risk of having a backlash to affirmative action. As with anything, there must be balance of intake on race and brains.

You know, Christine, my four, three of whom have gone through the admissions process and another who is about to next year, can't wait until this is all over, I get the desire to have a diverse class, both for the minorities who are beneficiaries of affirmative action.

And for the benefit of my kids, because I want them to be exposed to individuals of all perspective. How you achieve that balance is the conundrum and that's what I was discussing with him. Do we have time for another one? We do not. OK.

Meet the man who is being charged with drunken driving, despite never leaving his own driveway. His amazing story and a warning to many of us, is next.

(COMMERCIAL BREAK)

[09:46:14]

SMERCONISH: Giving new meaning to the phrase house arrest. My next guest was charged with drunk driving without even leaving his own driveway. Michigan Supreme Court ruled that Gino Rea could be charge despite the fact that police arrested him before he even reached the street.

Joining me now is Gino Rea and his attorney, Camilla Barkovic. Gino, this makes me nervous, because tonight, I'm thinking of washing my car in my own driveway after having a couple of pops. What happened to you?

GINO REA, ARRESTED FOR DRUNK DRIVING IN OWN DRIVEWAY: I was listening to music in my vehicle, in my backyard, side yard, garage. My private property and I became a victim of can OUIL charge.

SMERCONISH: Camilla, he never left the property, right. He never pulled out of the driveway?

CAMILLA BARKOVIC, ATTORNEY FOR GINO REA: That is correct and he had no intention of doing so. As he just indicated, he was simply sitting in his own driveway, which was essentially located in the backyard of his residence listening to music.

There was no evidence and there is no evidence that he ever intended to leave. In fact, police came out a few times and had contact with him. He wasn't arrested initially. It was only on the third time that the police responded that he was taken into custody. And I think that indicates how unclear essentially the law was in Michigan.

SMERCONISH: I guess from the perspective of law enforcement, they say, hey, we don't want to wait until he's out there on a road where he can hurt somebody, but yet, it's his private property.

BARKOVIC: Absolutely, but I definitely think it's improper for law enforcement to speculate as to someone's intention about future acts.

SMERCONISH: The law in Michigan seems to be based on the accessibility of where all of this transpired. Meaning that if he were not in his backyard, if he were in his remote area that was not necessarily accessible, then they could not have prosecuted him. Did I state that accurately?

BARKOVIC: I'm not sure about that. What the court decided was that private driveways are generally accessible to motor vehicles, in this case, and the majority of the court's interpretation was that generally accessible means an area that's physically capable of being reached.

Now, the Michigan statute initially just precluded drunk driving in three areas, a highway, an area open to the general public, and an area generally accessible to motor vehicles.

In that statute, there's no reference to a private driveway. There is no reference to an individual's private residential backyard. I think that the meaning that's been accorded to that phrase is overly expansive and it encompasses areas in which the legislature did not intend to preclude drunk driving.

SMERCONISH: Gino, what has been the reaction of your neighbors? This has gotten a lot of attention. What do people say to you when they know you were arrested for drunk driving, for being in a car on your own property?

REA: Well, they're pretty amazed. Several comments. They feel that, you know, they can be victims of any circumstance in their own private property. It doesn't become private anymore. It's open generally, accessibility to anybody that wants to drive in your driveway or your backyard at any given time.

SMERCONISH: Well, it's a wakeup call for everybody. Gino Rea and Camilla Barkovic, appreciate very much for being here.

BARKOVIC: Thank you for having us.

REA: Thank you.

[09:50:00] SMERCONISH: Still to come, your best and worst tweets and Facebook posts.

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SMERCONISH: Thank you so much for watching and for following me on Twitter and facebook.com/smerconish. One other thing, visit my YouTube page and check out the speech called "Stuck In The Middle With You." I think you will love it. I want you to circulate it.

So, what did you think during the course of this show? What have we got? Smerconish, hey, tweet my show any time but I won't answer. Care to explain why you're bending over backwards to downplay the grand jury? Tweet me any time but I -- I'm answering you right now.

I saw so much misinformation from individuals who were saying oh, a grand jury has been empaneled, surely indictments will follow. I'm a lawyer. I know better. I wanted to begin the program with a sanity check to say don't read too much into that.

[09:55:03] Next. Smerconish, I'm so tired of people who abused affirmative action now saying at the want to see it end after they benefited from it. I guess, you mean my guest who benefited from it?

Because he was dishonest and said he was black when in fact he is Indian. Listen, I think we need the rethink the way in which we approach affirmative action. For a long time, I'm not saying get rid of it. I wonder if it shouldn't be economic-based and not based on race and ethnicity. Just saying.

Another one, please. Smerconish, a couple of months ago CNN read a tweet of mine calling you an idiot. I was rude and wanted to apologize. Catholic guilt.

You are making the sisters somewhere very proud. I'm all about civility. I really appreciate it. Thanks for watching. See you next week.

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