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SMERCONISH

Donald Trump's Cooperation in the Mueller Investigation and the Possibility of His Using His Fifth Amendment Right; Judge Rosemarie Aquilina's Courtroom Statements are Examined and Discussed. Aired 9- 10a ET

Aired January 27, 2018 - 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 ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. So are headed for a face-to-face showdown between the President and Special Counsel Robert Mueller, or despite the President's words might he never testify? I'll ask lawyers from both defense and prosecution in the investigation of Bill Clinton what lessons they learned about putting a President under oath.

Plus the Justice Department wants census takers to ask people if they are citizens. What impact might that one question have on the balance of state legislative and Congressional power?

And the nation was transfixed by the trial of the doctor who abused young female athletes. But did his sentencing judge overstep her legal role with words like this -

(BEGIN VIDEO)

ROSEMARIE AQUILINE, JUDGE IN THE LARRY NASSAR SEXUAL ASSAULT HEARING: I would allow someone or many people do to him what he did to others.

(END VIDEO)

SMERCONISH: And everybody loves the driving apps that show them how to escape traffic jams, except the towns that get used as short cuts. We have the mayor who shut down his roads to out-of-towners. Is that legal?

But first, what a week with regard to the Mueller probe. Just before departing for Devos, the President surprised everybody, including his own lawyer lawyers, by saying he was looking forward to testifying under oath.

(BEGIN VIDEO)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: There has been no collusion whatsoever. There is no obstruction whatsoever. And I'm looking forward to it.

(END VIDEO)

SMERCONISH: Now, almost immediately he qualified that by saying that he'd have to check with his lawyer, and his attorney Ty Cobb then down played the offer, later another Trump attorney John Dowd told CNN he is the one who will decide if the President will sit for an interview with Mueller's team and that no decision has been made. And then came news that President Trump ordered the White House counsel to fire Mueller's back in June citing three reasons that seemed to me awfully thin. They included the fact that Mueller once resigned from a Trump golf course over a fee dispute and that Mueller most recently worked for the law firm that previously represented Jared Kushner.

The first hardly seems grounds to charge bias against a former head of the FBI and the second, if it suggests any bias, it would seem to be in favor of the President. This reminded me of the circumstances surrounding the firing of James Comey. Now, recall that in that instance, the stated reason for the firing as evidenced in a memo written by Deputy A.G. Rod Rosenstein was Comey's mishandled investigation of Hillary's e-mails.

"As you and I have discussed, however, I cannot defend the Director's handling of the conclusion of the investigation of Secretary Clinton's e-mails and I do not understand his refusal to accept the nearly universal judgment that he was mistaken."

That was never credible as a reason why Trump would fire Comey. And it was belied by a subsequent interview that the President gave to Lester Holt. And here is the potential significance. Intent is the key agreement in any potential charge for obstruction of justice. As in did the President have a corrupt motive when seeking to thwart a criminal investigation?

Asserting false reasons for the firing of Comey and then Mueller suggests that he was hiding his real rationale. If the reason for Comey's firing and the order that Mueller being fired was that the President to use his words was just fighting back, fighting back against an unfounded probe that was looking for collusion where it never existed, ginned up by a fake dossier with the support of deflated Democrats and an antagonistic press, then why not say so?

Why create pretext when truth is on your side? The President absolutely has a right to defend himself. It's not a crime for the subject of a criminal probe to assert their innocence or provide additional information to exonerate them. But where a person takes steps with intent to corruptly impede or stop such an investigation that can amount to obstruction of justice. And now things are about to get really interesting. President said his meeting with Mueller could take place in the next two to three weeks. That suggests that Mueller is wrapping up his probe. Although the President has plenty of private sector experience with litigation,

[09:05:00]

I think it is legally and politically dangerous for President Trump to be interviewed or more formally testify under oath. From a lawyer's standpoint, he's an unpredictable client and that encounter with the press just before he left for Davos is just an inkling of what he is like when he thinks he is right. Trump is loquacious and he believes that he can win over anybody if given a shot. And that is a hazardous combination when a Special Counsel is the one asking the questions. Which is why we're entering a critical phase if -- if -- there is an upcoming encounter between Trump and Mueller, what will it look like? Where will it be? Who will be there? Will Mueller himself conduct the questioning? And will the President be under oath?

Well, I have two perfectly-credentialed guests joining me now, two veteran lawyers from opposite sides of another Presidential inquiry that gripped the nation. Solomon Wisenberg, Deputy Independent Counsel in the Clinton Intern Investigation who questioned President Clinton the time that Clinton famously answered, "It depends what the definition of is is." And Greg Craig, Former White House Counsel to both President Clinton and Obama who represented and quarterbacked President Clinton's impeachment defense.

Greg Craig, if you represented this President, how willing would you be to produce him to Bob Mueller?

GREG CRAIG, FORMER WHITE HOUSE COUNSEL UNDER PRESIDENTS CLINTON AND OBAMA: Well Mike, I'd be very reluctant. President Trump like every other American citizen has the right to remain silent. And to waive that right and go into either testimony under oath or for an interview puts not only his personal freedom and future in jeopardy, but also puts the office in play. I think the factors that went in to the decision and the advice that President Clinton made in August of 1998 to testify in front of the grand jury are the same factors that are being considered by Mr. Trump's lawyers today.

And I think any lawyer is going to be very, very concerned about exposing his client to examination while he is the subject or the target of a grand jury investigation.

SMERCONISH: So let me ask the direct question. Do you anticipate that President Trump at some point in the future will be invoking his Fifth Amendment rights?

CRAIG: Well, I think there's clearly going to be considering it. I don't know that he will invoke his Constitutional rights, but they will clearly consider that and make a decision based on their own judgment. So I can't tell you that he will invoke his Constitutional rights. He may decide for political reasons that he won't, as did President Clinton, and that he will go in and answer questions.

In that event, I think the lawyers will be trying to control the topics and the time and the various ways in which the interrogation takes place. For example they might say look, we're happy to answer questions about the campaign. But we're not happy to answer questions about his finances. We're not happy to answer questions about his performance as President. But go ahead and ask him questions about what you're supposed to be investigating which is Russian interference in the campaign. That may be one kind of way that the lawyers try to control the way in which the interview takes place.

SMERCONISH: Sol, on this same issue, where do you see it headed? Will President Trump some point in the future invoke a Fifth Amendment right?

SOLOMON WISENBERG, DEPUTY INDEPENDENT COUNSEL IN THE CLINTON INTERN INVESTIGATION: Well, he certainly should and I agree completely with Greg that it's a very perilous situation for him. And in fact, I think he is in much more danger than President Clinton was because when President Clinton sat down, we had already let him know about the dress. So there was no point in him trying to deny a relationship.

Whereas I can guarantee you that Mueller, who has run a very tight ship, has found a lot of information that Trump knows nothing about. If there is anyone who can pull off, any politician who can pull off as a P.R. matter invoking the Fifth Amendment privilege against self- incrimination, it is President Trump.

And he has kind of set the agenda for that by attacking Mueller over the last few months and saying there is a witch hunt and it is a bogus investigation. And he can go in front of the American people and he can say, "Look, the Supreme Court has said since the 1950s that the privilege against self-incrimination protects the innocent as well as the guilty. I think this is a gotcha investigation; they are looking for a way to get me and I'm going to invoke my precious Fifth Amendment right that protects us all."

SMERCONISH: Well Sol, you have given to me both a legal and practical answer. Greg Craig, on the practical answer, all I can think of as Sol has offering that explanation is the way in which President Trump hammered Hillary and more so the FBI for not putting her under oath which I think would make it very difficult for him now to be invoking a Fifth Amendment right.

WISENBERG: Well, I think you can overestimate the issue of the oath or not the oath. If he appears and answers questions from a federal official whether it's a prosecutor or an FBI agent, he is in jeopardy of violating the law if they believe he didn't tell the truth.

[09:10:00] That is Title XVIII United States Code 1001. So the oath can be inflated in its importance. I agree with Sol that if he goes in and testifies, he is putting his own future in jeopardy as well as the office. As you know, Mike, one of the first article - the first Article of Impeachment against President Clinton was the allegation that he did not testify truthfully in the grand jury when Sol was asking him questions.

SMERCONISH: And Sol, speaking of which - Sol speaking of which, I want to roll the tape and ask a question about this famous moment. Play it.

(BEGIN VIDEO)

WISENBERG: Whether or not Mr. Bennett knew of your relationship with Miss Lewinsky, a statement there was no sex of any kind, in any manner, shape or form with President Clinton was an utterly false statement. Is that correct?

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: It depends upon what the meaning of the word "is" is.

(END VIDEO) SMERCONISH: By the way, Sol, were you ready for that answer? Did that catch you by surprise as much as it did the rest of us when we finally got to see it and hear about it?

WISENBERG: It caught me by surprise because I think that the President had done generally speaking, a masterful job in the questioning, in the grand jury questioning. And I thought this was his one mistake and his biggest mistake. I just think it came off sounding very, very poorly.

SMERCONISH: So you asked that question, that line of questioning of President Clinton. Has Bob Mueller now been taken out of the prospect of questioning President Trump himself because of the revelation by "The Times" and CNN and "The Post" that Trump did indeed give an order to fire Mueller? Sol?

WISENBERG: Oh, not at all. I would expect that Mueller will be there. Unlike Ken Starr, Mueller has -- who really had very little involvement in the actual questioning. He asked some questions related to constitutional issues, but Bob Mueller has spent his whole life in law enforcement and prosecution and with the FBI. So he is certainly capable of participating substantively but I think that he'll, the bulk of the questioning will be handled by his top lieutenants. But I don't think this would prohibit him at all from asking questions.

SMERCONISH: Greg Craig, if you were representing this President in anticipation of some kind of an exchange with Mueller or Mueller's staff, what is on your agenda right now? What are you looking for? What do you want this process to look like?

CRAIG: Well, as I mentioned earlier Mike, I would like to know with as much precision and detail as possible as to what the topics are, so that I can prepare the President. The President is going to be concerned about making statements in response to these questions that are not inconsistent with previous statements that he's made, not inconsistent with the testimony of other individuals. And as Sol said, the President is not to know, for example, what General Flynn has said about x, y and z. The prosecutors will know what General Flynn said about x, y, and z.

So there is a challenge here for the President to be perhaps precise, perhaps abbreviated in his answers, and prepared for some specific areas just the way, I agree with Sol, that President Clinton when he was testifying in front of the Grand Jury was one of the best prepared witnesses in the history of trial practice. He did a very good job. And that videotape that you just saw was one of the most important things to the American public to show exactly how well Clinton had done in his testimony.

SMERCONISH: Sol, All of the Americans have had the opportunity to see your questioning of President Clinton. Will Americans get to see or read whatever questions are put to President Trump?

WISENBERG: I think so. I think if he ends up deciding to give testimony, that it will probably be - it will probably be recorded. It will not be Grand Jury testimony; it will be an informal setting. I completely agree with Greg that the oath is not significant as a legal matter. Martha Stewart wasn't under oath when she got indicted to making false statements. I would imagine that it is going to be ultimately released. It is not as clear as it was -- in our case, it was part of a sealed impeachment report or impeachment filing that we made with Congress and Congress decided to disclose it. Here it is not clear what if any mechanism there is for Mueller to disclose confidential things about his investigation. The grand jury if it decides not to indict anyone can issue

[09:15:00]

a report if the court allows to, that is very rare, but not unheard of in high profile cases. So we don't know for sure, but I would imagine that it will come out.

SMERCONISH: Sol, Greg, cannot thank you enough. We really appreciate your being here on an important subject.

CRAIG: You're welcome.

WISENBERG: Our pleasure.

SMERCONISH: I want to know what you're all thinking. Go to my website Smerconish.com and answer this poll question. Whether informally or under oath, will President Trump ultimately be interviewed by Mueller's team, or invoke his Fifth Amendment right?

We'll show you results at the end of this hour. Also more social media reaction courtesy of my tweeter feed and Facebook. Katherine, what has come in during the course of the first segment of the program? His ego will make him testify. He can't help himself. He thinks I can beat Mueller. He'll go against his lawyers. (Sil), that is exactly what I was getting to. I'm thinking I've represented many incorrigible clients as an attorney. And I know the M.O. of those who say I got this, I can handle this. And by the way, let's give the President credit. It has served him well through this part of his life. Whether it gets will him through the next chapter remains to be seen.

Up ahead, America was riveted when 156 witnesses testified in court against the doctor abused young female athletes. But when the judge editorialized during sentencing, did she go too far?

(COMMERCIAL BREAK)

SMERCONISH: The nation was riveted this week by an amazing courtroom drama when 156 accusers, including some former U.S. Olympians, tearfully and defiantly spoke at the sentencing of the doctor who pled guilty to molesting young female athletes. Though the Dr., Larry Nassar, had only pled guilty to molesting seven victims, Judge Rosmarie Aquilina opened courtroom to anybody wishing to speak including other victims of Dr. Nassar not part of the official case. When sentencing Nassara to 40 to 175 years in jail, the judge told him it was a death sentence and she didn't stop there.

(BEGIN VIDEO) ROSEMARIE AQUILINA, JUDGE IN THE LARRY NASSAR HEARING: Our Constitution does that allow for cruel and unusual punishment. I would allow someone or many people do to him what he did to others.

(END VIDEO)

SMERCONISH: And that, said some people including my next guest, was beyond on the pail. Joining me now, is Rachel Marshall, Deputy Public Defender at the Alamedia County office in Oakland. She wrote this piece for "Vox" under the headline, The Moment the Judge in the Larry Nassar Case Crossed a Line." Rachel, I believe and agree with everything that the judge said. And, as an attorney, I agree with everything that you have written. I mean the point is, she should have left those kind of comments to somebody like me in my capacity as a television or radio commentator, right?

RACHEL MARSHALL, DEPUTY PUBLIC DEFENDER: Absolutely. There is only one person in the courtroom who is not to be an advocate for either side. One person who is cloaked in neutrality and that is the judge. And for the judge to make herself an advocate for the victims in the midst of a sentencing hearing is inappropriate and calls into question our entire justice system. It poses a threat to the fairness of our institutions.

SMERCONISH: Do you take issue with the way in which she conducted this sentencing process in addition to the comments that we've just played and that you and others have noted? In other words, substantively here, was there anything either about this process that you called into question?

MARSHALL: Yes, I mean I think throughout the sentencing hearing even prior to making those comments she clearly aligned herself with the victims, often speaking to them as though they were her confidant -- she was their confidant and telling them that they were super heroes and expressing compassion which of course all of us feel. The victims in this case went through extreme trauma and are courageous for coming forward and speaking. But it is not appropriate for the judge in the midst of a sentencing hearing where she is supposed to still be open to hearing the entire evidence presented for her to already so clearly being on one side and to show such allegiance to that side. That is inappropriate.

SMERCONISH: And as a result, do you believe now there are grounds for appeal on the part of dr. Nassar because of the conduct of the judge?

MARSHALL: It's hard to say. Certainly I would argue that if I were his lawyer. But I don't know Michigan law specifically. Obviously this was a guilty plea. But a judge still has to consider the appropriate factors in sentencing. She is not free to use bias or any sort of personal feelings in making a discretionary sentence.

SMERCONISH: So yesterday I read aloud on my Sirius XM program from the piece you published at "Vox" and I said that I agreed with your sentiments. And, of course, I got phone calls from some who said you've gone soft, and you're a liberal, and all you are doing is supporting now a pedophile. I tried to explain the point that you are making. I guess my point to you is, I can only imagine if that is the result I got on radio, what you've heard since publishing your opinion. Tell me.

MARSHALL: Absolutely. And let me be very clear, I am in no way defending Nassar 's conduct nor am I talking the victims who I feel tremendous compassion for. But I think the difference is the roles that we have to respect in our system. If we can't trust judges to be fair, how can we have a fair system? And I also want to note that I did receive a number of comments suggesting that my critique of the judge had something to do with her being a woman, which couldn't be farther from the truth. If anything, I think it would be sexist to hold a woman judge to a lower standard than any other judges, and I have great esteem for judges and that is why I expect them to behave appropriately under the Constitution and under their guidelines under the law.

SMERCONISH: Right, if I as a guy had written that which you published at "Vox", I can only imagine what the hue and cry would have been that here I was somehow standing up for the pedophile when that too would have misunderstood the point. You get the final word.

MARSHALL: Of course. Again, it is really important to remember that this is about a judge being - should be a neutral person in the courtroom. And we cannot make excuses and decide

[09:25:00]

that there are some cases where it is okay for a judge to abandon that role. We need judges to be fair in all cases. That is how we protect all of our rights in the future.

SMERCONISH: Rachel, thank you so much for writing what you wrote and for being here as well.

MARSHALL: Thank you.

SMERCONISH: Let's see what is coming in on my twitter feed and Facebook page. What do we have Katherine, a couple of tweets? Smerconish, the judge's editorial was an absolute disgrace. It was fraught with a gratuitous performance for the cameras instead of the substantive reasons behind this man's sentence, it was completely unprofessional and could be grounds for an appeal, the real gold standard. Can I say I also wonder, am I the only one thinking of Judge Ito when I was watching that? How much of an influence did that camera -- I'm all for cameras and ability in the courtroom, but every once in a while they turn somebody into a Hollywood star or would be, and I think that the cameras play a role in that regard.

One more if I have time for it. What does it say? Smerconish, men just don't get it. I can't read other tweets, but there is a female judge litigator thinking this judge was wrong to speak at the head (ph) sentencing? He's been convicted, I don't see the problem. Hey Jen, let me repeat this. First of all I love your handle. I'll be into that later tonight. The guy is a dirt bag. I agree with everything Judge Aquilina said. Everything. And listen to me here on CNN that is what you'll get from me. No, the issue Rachel raised is whether she appropriately, the judge, was the one who should have been saying those things. That's the role for the prosecutor in a scenario like this. Can't happen.

Still to come, when the census takers count heads in 2020, they may be asking a new question about whether you are a citizen. And I'll explain how this could change legislative boundaries. And how one small town is fighting traffic jams by closing more than 60 roads to out-of-towners. Is that legal? And how far can a town go?

(COMMERCIAL BREAK)

[09:31:30] MICHAEL SMERCONISH, CNN HOST: If the Justice Department gets its way, the census takers who go door to door in 2020 will be asking a new question, what about citizenship. The change, which has to be decided by the end of March, has far-reaching implications. Whether that question is asked could actually tip the balance of power towards rural areas should noncitizens decline to participate out of fear of acknowledging their status? The Justice Department says it needs the information to assist with enforcement of the Voting Rights Act. Skeptics worry the intent is to produce an undercount of communities with large undocumented populations. Lawyers at the Commerce Department are evaluating the legal basis for the question.

Joining me now, Andrew Beveridge, professor of sociology at Queens College and founder of the demographics Web site, Social Explorer, and Justin Levitt, a professor of law and associate dean for research at Loyola Law School.

Justin, the primary responsibility, although the census does a lot of things, is to get a body count. How might that be impacted by this one question?

JUSTIN LEVITT, PROFESSOR OF LAW & ASSOCIATE DEAN FOR RESEARCH, LOYOLA LAW SCHOOL: Yes, that is right. The fifth sentence of the Constitution, right after it says we have a Congress, right after it says we have a House of Representatives, says the census is supposed to take a count of every person in the country. That is job one. And there is relentless focus on making sure all the other things in the census doesn't get in the way of job one, a body count, as you put it. The fear, the concern, is that, particularly in this climate, asking additional questions about citizenship could cause people not to respond to the census, and that would produce a serious undercut. It would make the census less accurate. Defaulting on the constitutional duty, but also impacting politics around the country and in pretty unpredictable ways.

SMERCONISH: Andrew, everybody has to be counted for the purpose of congressional boundary lines. That's the outcome of the Evenwel case. I don't want people eyes at home to glaze over. But children and those who might not be citizens need not be counted for state legislative districts. Of course, it is the state legislatures that control the drawing of the maps every 10 years. Is that not the domino effect then that could kick in if the citizenship question is asked?

ANDREW BEVERIDGE, PROFESSOR OF SOCIOLOGY, QUEENS COLLEGE & FOUNDER, SOCIAL EXPLORER: Yes, I think that's right. And I think what will happen is that Evenwel will still be revisited from one state of the other, most likely Texas, which seems to be the source of much of this sort of litigation. And, quite honestly, this has been going on since the 2010 census, because Vitter and company tried to force citizenship on the 2010 census. And I think they misperceived what would happen with proportions. But you're absolutely right, ever since the 14th Amendment, all people in the United States have been counted, women, children, slaves, blacks, noncitizens, et cetera. But I think that the holy grail of this from a point of view of the Republican redistricters is to try to get these people out because it would radically change lots of districts across the country. And it would help the rural areas. But I think it would also help the outer-range suburbs that are largely white, largely citizen, and largely very affluent. Also retirement areas would have a much better count.

SMERCONISH: And yet, Justin, perhaps a long-term analysis says that it could actually hurt the GOP insofar as some of the fastest-growing states are red states. Explain what that might mean.

[09:35:06] LEVITT: That's exactly right. Andrew is right, potentially, about the apportionment within states. But going back to the congressional command, the more people a state has and the more people the census counts, the more congressional seats the state has. The south is growing much faster than the north. The upper Midwest is losing population. The south is gaining population, largely from Latinos, citizens and noncitizens alike. And if the census does not accurately count those individuals, Texas isn't going to get as many seats as it otherwise would. Florida won't. Georgia, Alabama, North Carolina, those are all states that are either seeking to gain seats, that look to gain seats or where they are running to stay in place if the census count is accurate. You put this question on the census, and you get a lot of people refusing to respond. That means that the population count is going to be off. It will be wrong. And that is also going to mean that these states, Texas, North Carolina, Georgia, Alabama, will lose seats rather than gain seats. If you are a Republican in Congress looking to hold the Republican majority, you are hoping, you're counting on those seats from Texas and North Carolina and the fast-growing southern states. If the census count is wrong, those are seats that the Republicans simply will lose.

(CROSSTALK)

SMERCONISH: So, Andrew, who gets to decide? How does it get sorted out?

BEVERIDGE: I think part of it will be decided by the Supreme Court, part of it will be decided by the not-yet appointed director of the Census Bureau, and part of it ultimately is decided by Congress. Because Congress eventually -- and I think it is in April -- decides exactly what questions go on the census.

And Justin is absolutely right, it would cut the count in the states of fast-growing immigration, which are, in fact, the southern tier, the southwest and, to some extent, some of the coastal cities. So it is a very dynamic situation. And if you think about who might wind up on the Supreme Court if Trump

sticks it out, this could have a radical effect. According to Michael Feara (ph) I talked to, the Republican redistricters feel they have gone as far as they can go in terms of gerrymandering at this point. So this is like the next step, what can we do now, we've gone about as far as we can go. And there is a big backlash now about the massively partisan gerrymandering after the 2010 census. So it is very possible, if this doesn't go through, that there will be a swing back and we'll have fairer redistricting going forward.

SMERCONISH: I think this is an important and complicated issue. I want to make sure it's on everybody's radar screen as the decision is about to be made over at Commerce.

Andrew Beveridge, Justin Levitt, thank you. Appreciate your being here.

BEVERIDGE: Thank you, Michael.

LEVITT: Thank you.

SMERCONISH: Reminder, go to smerconish.com, answer this survey question. More than 2,000 have already done so this hour. Whether informally or under oath, will President Trump ultimately be interviewed by Mueller's team or invoke his Fifth Amendment right? We'll show you results at the end of this hour.

Speaking of which, let's check in on some more social media. What do we have? From Twitter, "Smerconish, thank you for clarifying census laws. However, there is no seasonable reason to know citizenship unless you plan to round up noncitizens for some nefarious activities."

Nancy, the Justice Department, let me be devil's advocate, would say that for enforcement of the Voting Rights Act, that is important information for them to have at their disposal. You be the judge.

Still to come, when does a small town want to be erased from the map? When it is the popular secret short cut that's recommended by apps for drivers who are stuck in nearby traffic jams. Find out how officials are combatting the congestion causes by Waze and Google Maps.

(COMMERCIAL BREAK)

[09:43:15] SMERCONISH: Traffic jam avoidance apps like Waze and Google Maps have become indispensable to today's drivers, diverting them from perpetual gridlock situations into less-clogged backroad routes. But what happens when all those cars are diverted? It creates a lot traffic in neighborhoods not built for it. And one small New Jersey town a quarter of a mile from the G.W. Bridge, the George Washington Bridge, is fight back. It is a symbolically famous high-traffic zone. You'll remember the infamous Chris Christie bridge scandal, Bridgegate, that tied up traffic for a while. This week, Leonia, New Jersey, moved to erase itself from the software and rezone 60 residential streets as off limits to drivers who use them as shortcuts, threatening to fine out-of-towners $200. Is it working? Is it legal?

Joining me now, the major of Leonia, Judah Zeigler.

Mayor, whose roads are they?

JUDAH ZEIGLER, (D), LEONIA MAYOR: Well, good morning, Michael. Thanks for the opportunity to be with you.

The answer is they are roads under the jurisdiction of the borough of Leonia and therefore we have the right to legislate in the interest of public safety on behalf of our citizens, and that's what we've done.

SMERCONISH: I would think somewhere along the way more tax dollars from people who don't necessarily live right in Leonia or do business in Leonia have ended up in those roads, which is why I ask the question.

ZEIGLER: Not for the roads for which we've legislated actually. The roads that we've legislated, which are all but three roads, three of our main thoroughfares, and only on during peak drive periods, are when we repair roads, they are largely paid for with local bond ordinances, local taxation, property taxation. We don't get state grants for these roads. So, no, the answer is people outside of Leonia have not, in large measure, paid any sum of money for the maintenance or replacement of these roads.

[09:45:06] SMERCONISH: Online, I note one of the criticisms goes something like this, if you move into a community that is adjacent to literally the world's busiest bridge, then you will get traffic, and you should expect that.

ZEIGLER: And I completely agree. We are not looking to reduce the amount of traffic that enters Leonia. As a municipality that's at the confluence of three major interstates, and as you said, a quarter mile from the world's business bridge, we will get a lot of traffic. We're not trying to reduce it. What we're trying to do is redirect it and make sure that it stays on the main thoroughfares rather than going into our narrow side streets where it poses a public safety hazard.

SMERCONISH: In the introduction to this conversation, Mayor, I showed what you now get at Waze and Google Maps.

In fact, if we can put that back up on the screen.

This is what you were after, right? It is not so much that you want your local police to have to stand out there. You want what I'm now showing on the screen to pop up when people are looking at an alternative when they get off or are going on the G.W. Bridge. So that tells me it is being successful.

ZEIGLER: That is 100 percent correct, Michael. We're not looking to ruin a bunch of peoples' days by issuing tickets. In fact, although we began enforcement on Monday, we have yet to issue a ticket. At this point, all we're doing is issuing verbal warning. I have an 18- officer police department whose primary responsibility is public safety. Their primary responsibility is not pulling people over and giving them a $200 ticket. This was to address the tech and get the tech to not recommend our narrow side streets as alternatives when there is a backup at the bridge. On Tuesday morning, there was a 90- minute backup at the George Washington Bridge. Our side streets were clear. So it is absolutely working.

SMERCONISH: Right, but if the neighboring communities to Leonia now take a page out of your book, folks will have nowhere to go.

ZEIGLER: But again, we're not closing Leonia. If people who are commuting to New York City decide they don't want to stay on the highways on which they are traveling to get to New York City, they can still come through Leonia and take a shorter route to the bridge. However, they just have to stay on the main thoroughfares in Leonia to get there. That is all we're saying.

SMERCONISH: And, Mayor, final question, are you confident that it is legal? I don't think it's been sufficiently litigated. I look at that Supreme Court case that talks about parking, and it seems to me some court will have to weigh in on this.

ZEIGLER: Well, listen, I'm hoping that we don't have to litigate it. Obviously, I'd rather not expend tax dollars on things like that. But certainly, I will protect the public safety of my citizens. The Supreme Court case is fairly determinant, but not completely. There are various other state court cases like St. Louis County versus Hawn and others that are even more on point. And point to the fact that municipal jurisdictions have broad authority to legislate streets under their jurisdiction if it is serving a public purpose. And in this case, that public purpose is public safety. So I do believe that we're on far fairly firm legal ground and our legislation would withstand a court challenge.

SMERCONISH: Mayor Judah Zeigler, from Leonia, thanks so much for being here.

ZEIGLER: Thank you, Michael. Appreciate it.

SMERCONISH: Last chance to go vote at smerconish.com. Answer the survey question. This voting is fascinating. Wait until you hear the results. Here it is. Whether informally or under oath, will President Trump ultimately be interviewed by Mueller's team or will he invoke his Fifth Amendment right?

Still to come, your best and worst tweets and Facebook comments. We have them? What have we got?

"Smerconish, call me paranoid, but this closure of roads to out-of- towners is just the start of containment practices. Surveillance with weapons to whip us into submission."

Yes, Paul Grace, I will call you paranoid, but thank you for your comment.

Back in just a minute.

(COMMERCIAL BREAK) [09:53:23] SMERCONISH: Hey, earlier in the program, I asked that you go to smerconish.com and cast a ballot on this poll question: Whether informally or under oath, will President Trump ultimately be interviewed by Mueller's team or invoke his Fifth Amendment right. Total votes, 3,903 during the course of this hour. I'm going to leave it as the poll question. You can still vote. But 55 percent saying he'll invoke his Fifth Amendment right, 45 percent say he will be interviewed.

Can I be critical of my own poll question? And by the way, I wrote it. I think I presented it in writing as if it were a binary choice. I should state the obvious, which is to say he can certainly participate in an interview or give sworn formal testimony and invoke his Fifth Amendment right. But I think you got what I was really aiming for, which is what percentage of us think, at some point in this process, he'll be invoking his Fifth Amendment right. That answer is 55 percent.

Greg Craig (ph) and Saul Reisenberg (ph) were here at the outset of the program with some interesting thoughts on that. Both of them skilled by virtue of the involvement they had in the whole Clinton process.

Anyway, keep your votes coming.

Catherine, what other social media reaction to this program? Hit me with it.

"Smerconish, remember the good old days when Trump said nobody who is innocent would ever hide behind the Fifth Amendment?"

He did, Gary. And, Gary, I think there's a split now about that which is best for him politically and that which is best for him personally. Because it may me that, even if he's done nothing wrong, it may nevertheless serve his purposes to invoke a Fifth Amendment right. But politically speaking, especially after he hammered Hillary for not having been under oath, which, by the way, is really a criticism of the FBI process, for him to then invoke the Fifth, I think, politically speaking, he would have a lot of explaining to do.

[09:55:14] Hit me with another one. What else do we have?

"Smerconish, in a day when political correctness abounds, I feel it was refreshing for the judge to get real. She was the soundtrack of the people that day."

Steelesque, let me say now for the umpteenth time, everything the judge in the Nassar case said, I agree with. But that's me as a talk radio host and television presenter, not me the lawyer. Because me, the lawyer, recognizes somebody needed to say all that, but it shouldn't have been the judge.

Follow me on Twitter and Facebook. Check out my Web site, it's smerconish.com. We will see you next week.

(COMMERCIAL BREAK)