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SMERCONISH

Could James Comey's Book Tour Backfire on Mueller Probe?; Vaping Now an Epidemic Among High Schoolers; What Really Happened at Chappaquiddick?; Bill Cosby Retrial in the #MeToo Era; Aired 9-10a ET

Aired April 7, 2018 - 09:00   ET

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


[09:00:24] MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world.

CNN reporting exclusively that President Trump has begun informally preparing for a possible interview with Robert Mueller. Though he's been told he is not a target, should he find that reassuring?

Meanwhile former FBI director James Comey embarking on a highly anticipated book tour, but might he endanger the probe by publishing before Mueller is finished?

Plus the "Cosby Show" returns to a Pennsylvania courtroom Monday, a retrial of his assaults charges with the judge allowing additional women to testify. Will the new jury reach a verdict?

And in addition to weaning adults off tobacco, the latest e-cigarettes are introducing kids to nicotine highs and they're bragging about it online. Is there any way to stub out this trend?

Plus inside a new movie about the night that everything changed for Teddy Kennedy's political career, the Chappaquiddick car crash that left a young campaign worker dead.

But first, on Friday, the Trump administration imposed new sanctions on seven of Russia's richest men and 17 top government officials as punishment for meddling in the 2016 election. And CNN is reporting that the president has begun the initial steps of going over potential topics for an interview with the special counsel.

These headlines followed a story earlier in the week in the "Washington Post" under this banner, "Mueller told Trump's attorneys the president remains under investigation but is not currently a criminal target." In the lead of that story, it says, "Special Counsel Robert S. Mueller informed President Trump's attorneys last month that he is continuing to investigate the president but does not consider him a criminal target at this point, according to three people familiar with the discussions."

Well, let's game out what this means. First of all, last month if the White House had thought this was great news, I don't think it would have taken a month to leak out. After all, the president has had no reluctance to tweet criticism of the FBI while touting no collusion so you might expect high-fiving and celebrating upon hearing the news that the president is not a target. But instead it was greeted with radio silence and only a later leak put the news in the "Washington Post."

And second, and in a more important big picture sense, it suggests to me that the real outcome of the Mueller probe might rest with the midterm election. And that's because when Mueller is finished his work, he'll give a report to deputy AG Rod Rosenstein who is overseeing the probe given to the recusal of AG Jeff Sessions. It will be Rosenstein who determines whether the report is made public and if it is shared with the Congress. It's likely the report sees the light of public day because that might be reminiscent of when Jim Comey in July 2016 made public comments on the probe of Hillary Clinton's private e-mail server.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

SMERCONISH: If the result of Mueller probe is similarly critical of President Trump, where many legal scholars believe a sitting president cannot be indicted, the ball will now be in the court of Congress and what Congress will do would surely depend on who controls it at the time.

Remember, Democrats need to pick 23 seats to take control of the House of Representatives. On Friday, the Cook Political Report, well respected for its prognostication, moved 13 races in the Democrats' favor, changes that mean that 50 Republican-held seats are rated as competitive while just five Democratic seats are seen in that way.

That matters because impeachment for treason, bribery or other high crimes or misdemeanors requires a majority vote in the House which is tantamount to an indictment in which case there'd be a trial in the Senate where the chief justice presides and a two-thirds vote is required.

Here's the point, unless there is a major revelation in the report that Mueller gives to Rosenstein, given our polarized climate, it will never get to the Senate unless Democrats control the House.

The "Post" also reported that Mueller's team is considering releasing its findings in stages starting with obstruction. So the precise timing of Mueller's reports is key. And so too could be the outcome of the midterm elections because unless Democrats take the House, then this whole process will end with Mueller's report.

[09:05:11] That's the net impact of the "Washington Post" revelation that the president is a subject, not a target in, the current probe. Timing could be everything. Now James Comey, the former FBI director who President Trump famously

fired last May 9, is about to publish a new book, "A Higher Loyalty: Truth Lies and Leadership." The book's promotional copy touts the fact that Comey has been, quote, "involved in some of the most consequential cases and policies of recent history, including overseeing the Hillary Clinton e-mail investigation as well as ties between the Trump campaign and Russia."

Comey is embarking on a major media blitz including here at CNN, but might it have a disruptive impact on the Mueller probe which has been proceeding methodically and in near-secrecy?

Joining me now is James Gagliano, a retired FBI supervisory special agent and CNN law enforcement analyst. He wrote a piece for the "Hill" called "Comey's Book Tour is a Colossal Mistake."

James, why is it a colossal mistake?

JAMES GAGLIANO, CNN LAW ENFORCEMENT ANALYST: Well, first of all, Michael, let's look at this in the context of history. It's not unprecedented that FBI directors write books. If you go back as far as the mid-50s, J. Edgar Hoover wrote a book called "Masters of Deceit," interestingly enough about the Kremlin's attempting to meddle in our election system here to prove democracy's dysfunction.

Even later, let's go back to the fifth director, Louis Freeh, Judge Louis Freeh. He wrote a book called "My FBI." And in it he actually touched upon some of the misgivings he had with the president he served under, President Clinton.

When I think about the current book that's coming out, and the former director, which was the seventh FBI director, James Comey, is this. He has become a darling of the resistance. Half of the country fervently believes that when he comes out with this book there is going to be indisputable evidence there that's going to the lead to the president's either indictment or potentially a -- you know, impeachment hearings.

Now here's the problem with that. There are two major consequential probes going on right now. The Russia probe, which you touched upon, and with the findings not being released yet James Comey is putting himself into a perjury trap position. He's going to be talking about things, meaning his interactions with the president. He had nine separate interactions either on the phone or in person with the president, and he's going to set himself up to purposefully or unwittingly saying something that's not consistent with what he's going to have told the special prosecutor.

Then we're still awaiting the IG's report, the Department of Justice and the FBI being scrutinized at senior levels by IG Horowitz. He's also going to be a central figure in that. So I think that the timing is the issue. Not that he does not have a right to write a book. Of course he does. He's an American citizen now. He's not in public service anymore. It's just the timing.

SMERCONISH: OK. When you speak of a potential perjury trap, it makes me wonder, are you worried about Comey's reputation, the bureau's reputation or both?

GAGLIANO: Yes. And here is what I'll say about that. When James Comey was fired on May 9th of last year, I came on CNN on May 10th and talked about it. And I lauded Comey for his probity, for his reputation, and I contrasted him with the president and some of the issues of moral turpitude that surrounded the president -- the current president.

I also lambasted the president for the very -- I'll give him the benefit of the doubt and say ham-handed but maybe there was something more nefarious there. The manner in which he dispatched Comey. He sends Keith Schiller, his former bodyguard, to FBI headquarters with a letter for termination. James Comey finds out about it in L.A. while he's watching the television screen while he's talking to employees at the L.A. office.

That was a really bad look and no public servant, certainly not James Comey or anybody else, should have been treated that way. But more things have come to light. I initially defended James Comey for that July 5th press conference. You referenced that. You showed the clip of him speaking there where he essentially exonerated Hillary Clinton. He took it from gross negligence to extreme carelessness. And he made a decision there at the FBI that should have been handled at DOJ.

Now you can say the last week of June when that meeting happened on the famous Phoenix tarmac between then Loretta Lynch, the attorney general, and former president Bill Clinton, the golf and grandkids discussion, you could say Comey was put into a box and had to do that. He should have punted the ball back across the street to DOJ and given that to Sally Yates. She is a - had great reputation as the deputy attorney general, and the decision should have been made there, not by the FBI.

SMERCONISH: OK. Here's --

GAGLIANO: This is going to be damage Comey's reputation.

SMERCONISH: Here's what I think you're saying. Big picture sense, I think James Gagliano is saying that Comey is playing into the perception of some that this whole process has been politicized. Is that fair to say?

[09:10:06] GAGLIANO: Michael, absolutely. I think you just said it very succinctly right there. I don't think James Comey is a bad man. I served under four of the only eight FBI directors in the 110-year history of the FBI. I enjoyed serving under him. I think this is a bad decision. I think the Twitter battle he's having with the current president is a bad look and I don't think it's going to look good for him or the FBI.

SMERCONISH: OK. One last thing, if you want to see him in Chicago -- put this up on the screen, Katherine -- for the book rollout, it's going to set you back $1,000.

Is there something unseemly about the idea that the FBI director while the Mueller probe is going on is out there selling a lot of books and people are paying for this like they're front row tickets to U2?

GAGLIANO: Yes. I believe in free markets, I believe in capitalism. I'm certainly not going to tell him he doesn't have the right to earn a living. I'm certainly not going to tell him --

SMERCONISH: But not now?

GAGLIANO: -- he doesn't have a right to punch back. Not now.

SMERCONISH: Got it. OK. James, thank you. I appreciate your being here.

GAGLIANO: Thanks for having me, Michael.

SMERCONISH: I want to know what you think. Go to my Web site, it's Smerconish.com. Answer this question right now. Is it appropriate for James Comey to publish a memoir before the Mueller probe is completed? I'll give you the results later this hour.

Up ahead, e-cigarettes were supposed to wean adults off of the real thing. Well, the latest version is getting kids hooked on nicotine before they even hit their teens. And this new generation is vaping everywhere, in class, at games and telling their tales about it on YouTube. This guy is about to be here. Watch.

(BEGIN VIDEO CLIP)

KYLER KRISTOPAITIS, HIGH SCHOOL SOPHOMORE SUSPENDED FOR VAPING: I hear them say to a principal, we have a few kids vaping in there, in the bathroom. You can't just say I'm vaping or smoking it because it's not working. I was just holding it. Literally that's all I was doing. I was literally just (EXPLETIVE DELETED) holding it behind my back and I said it's not (INAUDIBLE), and that's how I got in trouble.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:15:46] SMERCONISH: E-cigarettes were supposed to be another alternative for adults to kick the habit, but they are also introducing a young generation to possible nicotine addiction as early as middle school.

A recent U.S. Surgeon General report found that since 2011, e- cigarette use among high school students has increased 900 percent. That is accelerating thanks to a new generation of easily hidden devices, the most popular one is called the JUUL. It resembles a computer flash drive and can be concealed in a closed fist. They emit so little smoke that some students are even vaping in class. And e- cigarettes are too new for researchers to understand the long term health effects. Students caught with the devices are getting in trouble because in some schools they are considered the same as marijuana paraphernalia.

Yet the Internet abounds with videos of kids sharing tales of their suspensions including my next guest, a high school sophomore from outside of Pittsburgh. His video has over 600,000 views.

(BEGIN VIDEO CLIP)

KRISTOPAITIS: Hey, guys. I got suspended. Everyone at my school JUULs. And if you don't know what a JUUL is, it's like this little black vape thing. To describe it, it's basically just vaping and you get super buzzed on off of it. Everyone in my school does that.

(END VIDEO CLIP)

SMERCONISH: Joining me now is Kyler Kristopaiti.

Kyler, thanks for being here. When did you first start vaping?

KRISTOPAITIS: I started when I was 12 because my friend was doing it.

SMERCONISH: And how prevalent -- I mean, are you the outlier or is that common? How prevalent is it among your friends?

KRISTOPAITIS: It's really common among my friends. I'd say about 90 percent of them have a JUUL or some kind of vape.

SMERCONISH: What's the attraction? Why do you do it?

KRISTOPAITIS: People like the head rush, the buzz. And they like to do tricks, too.

SMERCONISH: What do you mean tricks? Like smoking tricks? Vaping tricks?

KRISTOPAITIS: Yes, like doing ghosts and blowing nose and stuff like that.

SMERCONISH: I see. Have you vaped in class?

KRISTOPAITIS: Yes, I've done that before.

SMERCONISH: And how common is vaping in class?

KRISTOPAITIS: I mean, it happened on Friday, so -- like I saw it happen.

SMERCONISH: It happened --

KRISTOPAITIS: I've been --

SMERCONISH: In one of your classes on Friday.

KRISTOPAITIS: Yes.

SMERCONISH: Tell me your suspension story.

KRISTOPAITIS: So basically I was in the bathroom with one of my friends and I was in the stalled trying to fix a broken JUUL. And there's some kid outside that had a vape mod and he was blowing big clouds out in the open so someone snitched on him and told the teacher. And the teacher walked in and on my way out of the stall, they saw the JUUL in my hand so I basically just got suspended for having it.

SMERCONISH: Right. And because the smoke dissipates so quickly, if they don't see the JUUL, chances are you can get away with it, right? I mean, it's not like smoking a conventional cigarette --

(CROSSTALK)

KRISTOPAITIS: Yes, I would have gotten away with it if I had it in my pocket. Yes, if I had it in my pocket I would simply gotten away.

SMERCONISH: OK. Key question. Do you smoke cigarettes?

KRISTOPAITIS: No.

SMERCONISH: Do you have any interest? Have you ever smoken -- smoked a cigarette?

KRISTOPAITIS: Yes, like one time. I hated it.

SMERCONISH: Because I think that the perception among many who are not familiar with vaping is that this is going to be a gateway to cigarette smoking. What is your answer to that?

KRISTOPAITIS: It's definitely not because people like vaping better because it doesn't leave a smell or anything and also it tastes better.

SMERCONISH: Are you nevertheless worried about the health risks because there is a nicotine aspect to vaping?

KRISTOPAITIS: Honestly, not at all. Because there is no studies proving that it is doing anything wrong yet. So I don't see a problem with it.

SMERCONISH: If there were such studies, do you think that it would take away your desire to vape?

KRISTOPAITIS: Yes, definitely.

SMERCONISH: Is vaping in your opinion a gateway to weed?

KRISTOPAITIS: No.

SMERCONISH: So what is it that you want adults to know about vaping? Because here's my perspective spent some time reading in on the subject. Vaping it seems might be a good alternative to adults who smoke because vaping seems to be less hazardous to your health than smoking a cigarette. At the same time that we wean an adult population off of conventional cigarettes, we don't want to turn on middle school kids and teenagers generally to vaping.

[09:20:10] KRISTOPAITIS: Yes, well, I think it'd be better for middle schoolers to be smoking -- I mean using vapes than smoking cigarettes. That's just my opinion because vaping is better for you. And it's like with the studies now, it's almost definitely true that vaping is definitely better for you.

SMERCONISH: OK. But obviously better for you -- now I'm going to speak like your father as if you are one of my sons.

KRISTOPAITIS: All right.

SMERCONISH: Obviously better for you is not doing any of the above. You get that. I'm sure you hear that from your own parents, right?

KRISTOPAITIS: Yes.

SMERCONISH: What do they say?

KRISTOPAITIS: They don't like me doing it especially my mom because she like is getting tested for lung cancer because she smoked cigarettes before whenever she was younger.

SMERCONISH: But you don't listen to listen to that advice. How come?

KRISTOPAITIS: Because I don't really see like -- because she was smoking cigarettes. She wasn't vaping. And I think vaping doesn't cause cancer.

SMERCONISH: The punishment that you received for your vaping incident, how long was it and was it the same as if you had cigarettes or the same as if you had pot?

KRISTOPAITIS: I got a three day in-school suspension, so basically for three days I spent my entire day at school in one room doing basically nothing unless one of my teachers brought work down which most of them didn't. So I just sat in a room and like look at the wall all day. And that would be the same punishment for cigarettes but if you bring weed to school, you get expelled.

SMERCONISH: Kyler, don't smoke, don't vape. OK?

KRISTOPAITIS: All right.

SMERCONISH: Let's see what you're saying on my SMERCONISH Twitter and Facebook pages. What do we have? Hit me with it, Katherine.

"Smerconish, my son's high school just this week took all the doors off the bathrooms because vaping has become such a problem."

Ritamarie, you're obviously conversant in the subject. I mean, take a look at a JUUL. When I first saw a JUUL, I thought it was a thumb drive. It's much, much different. You know, it used to be you saw a pack of cigarettes with a son or a daughter, you knew exactly what they're up to. Now it's not so simple.

Give me another one. "Smerconish, why stamp out vaping? It's far less harmful than smoking and is an effective aid in quitting cigarettes."

Hey, Casey, that's actually not my attitude. I think that vaping is a positive development for adults who have a nicotine habit because I think that the science agrees with the idea that they'd be better vaping than smoking a conventional cigarette.

Here is the conundrum for policymakers. The conundrum is how do we allow the weaning off of conventional cigarettes via vaping for adults but at the same time not to turn on a whole generation of young Americans to vaping? Because we'd rather they don't vape at all, right?

Up ahead, comedian Bill Cosby returns to court Monday for a retrial. But it will be significantly different than the first one which ended in a mistrial 10 months ago after the jury deadlocked.

And Ted Kennedy's presidential hopes were dashed after the infamous incident when a female campaign worker drowned in his car while he swam to safety. A new movie, "Chappaquiddick" examines what happened that fateful night in July 1969.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: We've got a body.

UNIDENTIFIED MALE: A dead body holds a lot of secrets. Those can be the difference between guilt and innocence. So we need to be in control.

UNIDENTIFIED MALE: There's not a lot of senators that are charged with manslaughter that go on to become president.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:27:52] SMERCONISH: The night of July 18, 1969 changed American political history forever. And a new movie revisits the controversy. Senator Ted Kennedy drove his car off a bridge on Chappaquiddick Island in Massachusetts and escaped to swim to shore. But a 28-year- old former RFK campaign worker, Mary Joe Kopechne, died in the car. Kennedy waited until the next day to report the incident and his account of the night never really added up.

Today he'd probably be ousted, but it was a different time and Kennedy ended up remaining a senator. Still the scandal surrounding that night did forever tarnish him preventing him from ever being a serious presidential candidate able to continue his brother's legacy.

A new movie called " Chappaquiddick" dives deep into the events of that night.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It was an accident. I was driving.

UNIDENTIFIED MALE: Story like this could dominate the headlines for weeks.

UNIDENTIFIED MALE: Chief, we got a body.

UNIDENTIFIED MALE: A dead body holds a lot of secrets. Those can be the difference between guilt and innocence.

(END VIDEO CLIP)

SMERCONISH: Joining me now is producer Mark Ciardi.

Hey, Mark, on Chappaquiddick on a bike I retraced the route that Ted Kennedy took that night. He comes out of a house party, makes a right, goes to a T intersection. In fact roll the video that displays from your movie what I'm describing. The Edgartown ferry is to the left. The beach is to the right. There it is. There is the sign.

He goes to the beach. There is only one reason he's going to the beach, right?

MARK CIARDI, PRODUCER, "CHAPPAQUIDDICK": Well, you know, you can only speculate really what his intentions were that night. We really didn't go into the salacious facts of a lot of the whispers and rumors that were around, you know, their relationship. We try to tell the facts. He did take that right turn, went down Dike Road, dark road, and hit that bridge on an angle and the car went in.

SMERCONISH: He denied infidelity. What got him in trouble is not so much the accident, it's the fact that he then went back to Edgartown, went to bed, went to brunch the next morning, without ever having reported the accident. True?

[09:30:06] CIARDI: Yes. That's what happened. You know, the writers used the inquest as their source material. And you know, once you added up all those things for the -- you know, from the time the accident happened, it's quite an indictment on his choices that evening and next morning.

SMERCONISH: I've been paying close attention to the reviews. I watched and enjoyed and learned from it even though I'd spent some time reading about Chappaquiddick over the years. But I find interesting the reviews that it is getting.

In fact, can we put up on the screen some of the way in which it's been received in the "New York Times," "The Post," the Washington -- there you go. There's the "Washington Post."

"'Chappaquiddick' plays it fair. Appeasing neither Kennedy clan fans nor its critic." The "New York Times," "How 'Chappaquiddick' distorts a tragedy." The "New York Post," "'Chappaquiddick' is a long overdue dismantling of the Kennedy myth."

My point is, you've really had to thread a needle here. I mean, I thought this was a pretty balanced presentation, but speak to the political dynamics of releasing this movie at this time.

CIARDI: You know, when we first got the script, it was 2015. And, you know, we didn't think too much of today's political climate. It just became irrelevant with everything that's been going on, you know, in the past eight or nine months. So it kind of caught up to that -- to the moment in time and it just become a little more important it seems. And I think we're holding our leaders to a higher standard and, you know, kind of abuse of power. So all those things I think, you know, become more relevant right now.

SMERCONISH: The movie made me appreciate that perhaps one of the reasons why Ted Kennedy was able to weather the storm, he never became president, but weather the storm and continue to go back to the U.S. Senate, is because these events coincided with the moon landing which was quite a remembrance of his brother's legacy.

Do you think that that's one of the factors that played a role here in his politically surviving?

CIARDI: Yes, I mean, probably the greatest achievement in 20th century was -- gave great cover to what happened at Chappaquiddick. I mean, I think without that he would have been on the front page of every newspaper in America, you know, for weeks and weeks. And it is an interesting juxtaposition to have JFK's greatest achievement with, you know, Ted's biggest failing.

SMERCONISH: When I first heard of your project, I wondered gees, why now. And then I saw an interview that Kate Mara who plays Mary Jo Kopechne, for me she's always going to be Miss Zoey Barnes from "House of Cards," she does a great job. But she was explaining that when she first presented with this project, she didn't know the Chappaquiddick incident and it was reminder to me that there is a whole, you know, millennial I-gen group out there that had probably have never heard of it before.

CIARDI: Yes, you know, even the writers had never heard of the word and they had heard it, I think on the Bill Maher show. So they started doing some research and were -- you know, it was incredible what they found and they downloaded the inquest. And, you know, that narrative of the week that we examined is really interesting. And it's historical and the movie is a thriller more than anything. But you know, it's a piece of American history that, you know, you look at it now and it's incredible especially with the moon landing.

SMERCONISH: It's been a couple years since I was on Chappi and did my sleuthing on a bicycle, but what was remarkable to me then is that Dike Bridge now had guardrails, but nothing else had really changed between the scene of the accident and the house where the house party had taken place. And what stood out to me, and I'll just get your reaction to this, are the number of houses that he would have had to pass that night after he gets out of the water and before he eventually goes to Edgartown. There are a lot of doors he could have knocked on for help.

CIARDI: Yes. I think that's a lot of the criticism with what happened that night. You know, he passed -- and we actually shot the real bridge when you see in the movie, the fishermen man and his son find the car in the morning, we watched this young boy go from that bridge to the Dike house which is maybe 100 yards away at the most, and the light was on that evening and he walked past that as well as several other houses.

So I think in a lot of ways that's the -- his actions, you know, of not, you know, knocking on the door lighting that island up and at least trying to attempt a rescue, you know, with authorities was the -- you know, the thing that I think the big criticism comes.

SMERCONISH: I thought it was a very balanced presentation and entertaining. So for what it is worth, there is my Rotten Tomatoes review.

CIARDI: Thank you.

SMERCONISH: OK?

CIARDI: Yes, I know it was great seeing reviews --

SMERCONISH: Thank you, Mark.

CIARDI: You got it. Appreciate it.

SMERCONISH: A timely reminder, by the way. The latest episode of CNN's original series of "American Dynasties," "THE KENNEDYS: LEGEND OF CAMELOT," premieres tomorrow night at 9:00.

I want to remind you to answer the survey question. James Gagliano was here at the outset and we talked about this.

[09:35:04] Go to Smerconish.com and vote right now. Is it appropriate for James Comey to publish a memoir before the Mueller probe is completed. Results coming up in a couple of minutes.

Still to come, after his first trial ended in a mistrial, comedian Bill Cosby will be back in court Monday but his retrial will be significantly different than the first, and will be tried against the backdrop of the #metoo movement.

(COMMERCIAL BREAK)

[09:40:14] SMERCONISH: The second Bill Cosby trial begins Monday at what is my home county courthouse. Norristown, Montgomery County, Pennsylvania. A jury has been selected to decide on three counts of aggravated indecent assault. The first of course ended in a mistrial 10 months ago after juries deadlocked. Last time Cosby did not take the stand in his own behalf. Something he revealed exclusively to me before that trial began.

(BEGIN VIDEO CLIP)

SMERCONISH: Don't you want to testify and tell your story?

BILL COSBY, COMEDIAN: No.

SMERCONISH: Why not?

COSBY: I just don't want to sit there and have to figure out what I believe is a truthful answer as to whether or not I'm opening a can of something that I -- my lawyers are scrambling.

(END VIDEO CLIP)

SMERCONISH: The new trial however will not be a rerun. A great deal has changed not the least of which is the climate.

Six months ago this week the "New York Times" published its expose on Harvey Weinstein ushering in the era of #metoo.

And joining me now, two veteran journalists who are covering the case. Nicole Weisensee Egan of the "Daily Beast." She's been covering this case for 13 years. And Manuel Roig-Franzia of the "Washington Post" who was in the courtroom for the first go round.

Nicki, a jury has been seated. But on Friday, the defense said we already want to remove one of the jurors. How come?

NICOLE WEISENSEE EGAN, CONTRIBUTOR, THE DAILY BEAST: What happened is one of the jurors came forward and said they overheard one of the jurors that got picked say that he thought Bill Cosby was guilty. So she made sure that the defense knew about that and now there is a challenge to have this juror on the panel.

SMERCONISH: Nicki, on Monday, last Monday for jury selection, the judge in the case asked the 120 perspective jurors who showed up how many of you have already formed an opinion, 68 said they had. Tuesday same question to 119, 83 said they had. It's been difficult to find folks who don't already have a firm view of the case.

WEISENSEE EGAN: That's true. And so for the third panel, they asked again and it was a really high number as well. And then they started asking whether they had a fixed opinion about the case to try to exclude them. So they have had a hard time with this as well as finding ones that hadn't heard of MeToo.

SMERCONISH: Manuel, you would think it's a difficult climate for Bill Cosby or any similarly situated defendant to go on trial with these allegations in the midst of the #metoo movement.

MANUEL ROIG-FRANZIA, FEATURE REPORTER, WASHINGTON POST: Yes. And the defense is aware of that. They have mentioned it in court filings. They have said in court to the judge. It is definitely on their minds that #metoo is hovering over the case.

SMERCONISH: Manuel, in this go-round, five women might testify and say literally me too. In the first case there was only one. Respond to that issue.

ROIG-FRANZIA: Huge change. Really a sea change between the first trial and the retrial. The judge really laid down a marker in that first case that he wasn't going to allow the prosecution to delve too deeply into the past. This time around he shifted significantly. Five other women now will be testifying.

These allegations go from the '80s to the '90s. And you really have to wonder how a juror will look at this. Will they be able to say, oh, I don't believe Andrea Constand, the main accuser, but I believe these other women. How do they reconcile that? It's a key element of this retrial.

SMERCONISH: So, Nicki, that was a big break for the prosecution pretrial, but a break for the defense is that a woman will testify who will say presumably that Andrea Constand made this up. Explain.

WEISENSEE EGAN: Right, they have a woman from Temple University who claims that Andrea said she was going to set up a high profile person. A woman named Marguerite Jackson. However, we still don't know if she actually will testify. The defense could just be floating that to the media to get some headlines out there. And in her own statement, she actually contradicts herself in that statement saying first Andrea told her something had happened to her and then later made the other statement. So there are some problems with this witness.

SMERCONISH: So before the last trial began, I asked Bill Cosby what he made of the sheer number of women who have told stories about him, made allegations about him. Here's the way he handled that question.

(BEGIN VIDEO CLIP)

SMERCONISH: What do you say to the person who puts credence in the charges against you because of the number of women who have come out and said this similar thing?

[09:45:12] COSBY: I think that the numbers came because the numbers prior to the numbers didn't work.

SMERCONISH: Are you telling me they are all lying?

COSBY: You know better than that.

(END VIDEO CLIP)

SMERCONISH: Manuel, presumably I should have known better than that because if he said they were lying, he'd be on the receiving end of defamation litigation right now. We don't know if Cosby will take the stand in this go-round on his own behalf, but, Manuel, we do know he has a new lawyer. Who is Tom Mesereau?

ROIG-FRANZIA: Tom Mesereau is a very well-known attorney from Los Angeles. He's best known for winning an acquittal for Michael Jackson, someone who you might be able to say is as famous or even more famous than Bill Cosby.

This guy Mesereau the attorney has a real courtroom presence and a physical presence. He has this beautiful white hair, long hair, and he has a calm commanding demeanor in the courtroom and it will be fascinating to see him navigate this case. He is someone who you cannot take your eyes off when you're inside the courtroom.

SMERCONISH: Nicki, another change is that the jury in this instance is going to learn of the amount that Andrea Constand was paid to settle the civil litigation.

WEISENSEE EGAN: Right, exactly. In the first trial they couldn't agree each side on what to include from the civil suit so it wasn't mentioned at all. This time they can mention the civil suit and the amount that she got. It could cut both way, though, if it's a very large amount. It could show that he really did believe, you know, there was something to the charges against him so he paid her, but it also helps the defense paint her as this person who just wanted to get money out of a high profile person.

SMERCONISH: So a quick final question for each of you. Because I think we've now exhibited the fact that this is going to be a significantly different trial than the first go-around because of the rulings that have been made in anticipation of its beginning on Monday. Who has benefited, which side has benefited from the different structuring and/or climate of this case?

Nicki Weisensee Egan, I ask you first.

WEISENSEE EGAN: I think both sides have. And I think it's -- you know, it's too early to tell who is going to prevail in this case. I think both of them got some favorable rulings. There are still a couple of outstanding ones about where the Quaalude deposition testimony from Cosby can be admitted and whether a phone call between Andrea's mother and Cosby can be admitted. So I think that it's still a close call and I don't think we know what's going to happen.

SMERCONISH: Do you think, Manuel, that one side has benefited more than the other in the pretrial determinations?

ROIG-FRANZIA: If you had asked me this question just a couple of weeks ago, I would have -- without hesitation said that the prosecution had the upper hand. They had gotten these five previous accusers in. That was a big, big win. But the defense goes in with quite a bit of momentum right now. These rulings that they've gotten in the final days and now really pressing the issue by asking for this juror to be removed, they have a little bit of momentum going. And, you know, both sides are going to be able to credibly say that they are ready to go in to this case feeling like they can win it.

SMERCONISH: Manuel, Nicki, thank you so much for being here. It all begins on Monday.

ROIG-FRANZIA: Pleasure.

WEISENSEE EGAN: Thank you.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments like this one.

"Bill Cosby is a done deal. This time the climate has changed with #metoo movement and time's up. He will probably be punished for his foolishness."

You know, Arlene, when I heard that 68 of the 120 prospective jurors on Monday and then 83 of the 119 on Tuesday said they had a firm opinion in the case, and by the way they were dismissed, they will not be included in the jury box come Monday, I came to a similar conclusion. I wondered can he get a fair shake in this climate. You say it's his foolishness. I'm going to wait for a factual determination by the jury.

But anecdotally, some of those prospective jurors were saying that they -- that this was all a setup because of the climate. So maybe it cuts both ways. We'll have to see. We're about to give you the final results of the survey question.

Here it is. You can quickly go to Smerconish.com. Is it appropriate for James Comey to publish a memoir before the Mueller probe is completed? Results in just a sec.

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[09:54:14] SMERCONISH: All right. Let's do this. Time to see how you voted at Smerconish.com on this question. Is it appropriate for James Comey to publish a memoir before the Mueller probe is completed? We had -- how many votes cast? 10,516. Interesting. 53 percent said no. Is it appropriate? No. It's not appropriate for him. James Gagliano who made that case at the outset of the program will be ecstatic with that result, although pretty close. 53-47.

What else has come in during the course of the program? Let's see what your social media reaction has been.

"Comey is just striking while the iron is hot." I mean, Robert, I get that he has a version of events that is at odds with that of the president of the United States and he wants as to put it out. I think that James Gagliano had a pretty good point in saying, you know, why not keep your powder dry?

[09:55:04] Because this might influence then the reaction to the Mueller probe before we've yet seen Mueller's report.

What else has come in? "Comey's timing helped destroyed Hillary Rodham Clinton's chances. Bad timing again, wait until after Mueller is done." Well, it could have a similar impact and I guess that's your point on the Trump campaign. I'm wondering if Mueller will learn from Comey's example of voicing an opinion in the wait he did in the midst of the Hillary campaign. Better to just put it in a report and give it Rosenstein.

One more, real quick. Here it is. "Future Chappaquiddick will no longer disqualify a presidential candidate thanks to Trump." You know, Donna, it was not the infidelity that got him in trouble. It was the lack of a report over nine or 10 hours. And that was inexcusable.

You can catch up with us anytime at CNNGo or on demand. We'll see you next week.

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