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SMERCONISH

Saudi Chokehold On U.S.; The Impact Of Siding With Saudi Arabia Vs. Iran; To Combat Opioid Epidemic, City Seeks Injection Site; How Will DOJ Prosecute City's Proposed Injection Site?; Democrat Blue Wave Or Fired-Up Trump Base?; Students For Fair Admissions Verses Harvard. Aired 9-10a ET

Aired October 20, 2018 - 09:00   ET

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


LEYLA SANTIAGIO, CNN CORRESPONDENT: I just can't even imagine. Luckily, no cars were hit and no one was injured, but man, what a story to tell.

VICTOR BLACKWELL, CNN ANCHOR, NEW DAY WEEKEND: Indeed. More news straight ahead.

SANTIAGO: Smerconish is next and we'll see you right here back again in an hour.

MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. The midterm election's just 17 days away. You'd think by now the outcome would be coming into focus, but the intangibles continue to unfold and create doubt. The migrant caravan, Elizabeth Warren's DNA, the presumed execution of Jamal Khashoggi. I'll ask Princeton's Dr. Sam Wang who has the edge.

And as for Khashoggi, his fate has highlighted the Trump administration's ongoing favoritism of Saudi Arabia in its battle with Iran, but should the U.S. be taking sides in the divide between the Sunni and the Shia Muslims?

Plus, in court now, does Harvard violate the Civil Rights Act by discriminating against Asians and is the actual goal of the lawsuit to end all affirmative action?

And in the war on opioids, a non-profit in Philadelphia where 1,200 died of overdoses last year wants to launch a supervised injection site, but Rod Rosenstein and the DOJ has sworn they'll shut it down. Here to discuss, the local U.S. attorney and former mayor Ed Rendell.

Which leads me to this week's survey question at smerconish.com. Go and answer during the course of the hour. I'll give you the results at the end. Should safe injection sites be permitted to combat the opioid crisis?

But first, what the hell does the Saudi royal family hold over American presidents? It's as if we elect an American president, give him the resolute desk and the book of secrets and in the latter he learns he must assume fealty to the kingdom and the next thing you know, regardless of party, they're holding hands with the king. By way of example, President Trump's first foreign trip was to the kingdom.

I don't get why the Saudis hold such sway, especially now, and not just over our politicians. When Mohammed bin Salman came to the U.S. in the spring, he was fawned over by titans of industry, from MIT to Silicon Valley. More recently on October 2nd, an American resident working for "The Washington Post" walks into the Saudi consulate in Istanbul to get marriage papers and never walks out.

Remember, the Saudis repeatedly said he left alive, but last night brought up Friday news dump (ph) notably timed for the middle of the night in Riyadh, the sad acknowledgment that Jamal Khashoggi is dead. The cover story that a fist fight broke out and became fatal. A fist fight? How convenient then that 15 operatives were on hand, including an autopsy specialist.

Of course, there was no mention in the Saudi acknowledgement of a bone saw or dismemberment, not to mention the location of the body. It's just not credible. The initial response from the White House, a tepid acknowledgment of the Saudi report and a promise to closely follow the international investigations.

Here's my question. Why are these our partners? No doubt the posture today is influenced by our current president's antipathy toward Iran, as evidenced by his disregard for the agreement for nuclear control negotiated by his predecessor. As I tweeted when the news broke, mention Saudi Arabia to me, I immediately think Wahhabism, madrasas (ph), Bin Laden, 15 of 19 9/11 hijackers, the redacted 28 pages from the joint House and Senate committee inquiry into the terror attacks of September 11.

But all that was quickly forgotten with abandonment of the agreement that contained Iran's nuclear capabilities for at least a decade and the rush to take sides in the age-old split between the Sunni, the Saudi Arabians in this case, and the Shia, the Iranians. Why is it in the best interest of the United States to pick sides in a sectarian dispute that's been unresolved since the year 632? None that I can see.

In his final writing that "The Washington Post" published after his death, Khashoggi lamented that, quote, "Arab governments have been given free rein to continue silencing the media at an increasing rate," and sadly, his words prove precious (ph).

Joining me now is Payam Mohseni, Director of the Iran Project at Harvard. He co-authored this recent article in "The National Interest," "The United States Cannot Afford to Pick a Side in the Shia-Sunni Fight." And Dr. Qanta Ahmed, journalist and author of "In the Land of Invisible Women: A Female Doctor's Journey in the Saudi Kingdom." Dr. Ahmed, I believe you disagree with me so you get to go first. Why am I wrong in that which I just said?

[09:05:03] QANTA AHMED, JOURNALIST AND AUTHOR: Good morning, Michael. I think that the U.S.' relationship with the kingdom is extending almost 100 years. Let's say at least until the 1940s. It was a relationship cemented before even oil was known to be there. The relationship between the U.S. and Saudi is more than what you've described and I think the real battle is a battle maybe the United States is caught in the crossfire within Islam. Not necessarily between Shia and Sunni, though that's an attractive construct. It is actually between Islamism, the political totalitarian impostor posing as Islam and the true Islam.

We truly are in a crisis with the kingdom. That's for sure and I would suggest the United States uses this opportunity to have the Kingdom finally acknowledge transnational Salafism is very problematic. Islamism threatens the West as much as it does the kingdom, but we cannot forget the Kingdom represents the spiritual epicenter for 1.6 billion Muslims, Shia and Sunni alike.

So if we now abandon our relationship with the kingdom, what does that mean for the world's Muslims where I pray every day towards Mecca? This is incredibly complicated and high stakes dilemma that we're now facing.

SMERCONISH: Dr. Mohseni, I'm concerned that this administration is putting its thumb on the scale on the side of the Sunni. Your reaction is what?

PAYAM MOHSENI, DIRECTOR OF THE IRAN PROJECT: So it's not just about taking sides with the Sunni. it's about giving carte blanche to Saudi Arabia that's propagating Wahhabi ideology. It's a particular strain of Sunnism and Wahhabis are not just anti-Shia, but they are anti- Christian, anti-Jewish, anti-mainstream Sunni.

And that ideology, I mean, we saw it in many ways with Isis. Isis is Wahhabi ideology just exactly like the Saudi state. The only exception is that Isis is anti-monarchy. Saudi is pro monarchy, but I think it points the larger issue of increasing destructive and destabilizing behavior that we are seeing from Saudi over time, especially after the Arab Spring.

And now even with the new administration here in the United States, we see the negative consequence of this spillover from -- there's a dispute with Qatar that Saudi has the taking of the Lebanese Prime Minister, Hariri, as hostage, the humanitarian catastrophe that's happening in Yemen, Just two months ago, Saudis bombed a school bus with 40 innocent children.

So the negative repercussions that the Saudi state is doing, it goes against regional stability, it's undermining the U.S. image and it goes against American values and interest in the -- in the region. Do the point is that this is a particular type of alliance where, for some peculiar reason the, U.S. has not held Saudi accountable for its bad behavior and that's what's important for the U.S. to do. We can't just, you know ...

SMERCONISH: Dr. Ahmed ...

MOHSENI: ... continue to give ...

AHMED: Yes. A lot of -- a lot of what my -- a lot ... SMERCONISH: If I may -- if I may pose a question -- if I may pose a question to Dr. Ahmed, I want to -- I want to -- the question, it seems to me, is one of what do we do now?

Nicholas Kristof said something I found provocative in "The Times" today we'll put on the screen which says this, "The United States should quietly make clear to the Saudi royal family that the mad prince has gone too far, not just with this murder, but also with his war in Yemen, his confrontation with Qatar, his kidnapping of Lebanon's Prime Minister and will forever be tainted. A murderer belongs not at state dinners, but in a prison cell." What should the United States, Dr. Ahmed, do now?

AHMED: First of all, let me be clear. I'm not in the business of making allegations that a head of state is a murderer. I think that's rather a stretch at this stage without us knowing all of the facts. I think that's very volatile and partly what we need to do is frank conversations. You've just talked about the regional contributions of Saudi Arabia destabilizing the region. I accept some of that.

Let's not forget the militant Shia Islamism emerging from Iran which has Lebanonized Syria, which is holding captive Lebanon via Hezbollah, which is actually annexed Iraq where Iran is actually moving its missile and missile operations into sovereign Iraq with intentions of hitting U.S. national interests Tel Aviv and Riyadh.

So this is a game being played on both sides, again, not concerning Islam, but concerning Islamism, which can be Shia or Sunni. What I would do if I was advising the President is saying we are in a tough spot. We need to see that Saudi Arabia is committed to combating all forms of Islamist terrorism.

[09:10:05] That includes containing Salafism, transnational Salafism. Wahhabism is a -- is a variety of that. That includes cutting off funding for mosques in Europe that Saudi Arabia is using to radicalize local populations. That involves not just investing in military operations with us because they are an enormous partner in counterterrorism with us because the king himself buried a son when he was governor of Riyadh in 2003 to Al-Qaeda. So it's more complicated than ...

SMERCONISH: Understood.

AHMED: ... the strike in the GCC.

SMERCONISH: Dr. Mohseni, you take my final minute. Answer the same question. What should the U.S. do now?

MOHSENI: The U.S. needs to hold Saudi accountable. It needs to put pressure on Saudi to not make these, you know, the mistakes in its foreign policies, to put pressure to end the Yemen war. I mean, many of the victor -- I would say Saudi is a -- is a blessing in many ways to Iran because it's giving it victories in Iraq, in Lebanon, across the region. The Yemen War, I mean for Iran, is the cost of pennies. It cost Saudi billion. And Iran is able to undermine Saudi credibility and effectiveness regionally, but the case of the murder of Jamal Khashoggi, who I know personally, I mean it just goes -- it shows how, you know, having a 15-member hit squad go to Istanbul with saw-hacks and now the cover- up, you know, that it was -- he was in a fight in the -- in the consulate, I mean it's just -- it's just unacceptable.

SMERCONISH: Right.

MOHSENI: There has to be some type of pressure used on Saudi to make it accountable for its behavior.

SMERCONISH: Dr. Mohseni -- Dr. Mohseni, Dr. Ahmed, I really appreciate the dialogue. Thank you both for being here.

AHMED: Thanks, Michael.

MOHSENI: Thank you.

SMERCONISH: What are your thoughts. Tweet me @Smerconish, go to my Facebook page, you know I'll read some responses live without seeing them in advance during the course of the program. Catherine, what do you have?

"It is good that you are asking that question, but an even better question, why don't our lawmakers care and why aren't they asking these questions?"

Well, may I answer the question? It's about the money. It's all about the money and the dependence on foreign oil. Those are my two cents.

Up ahead, with the midterms 17 days away, several late-breaking factors, including a caravan of migrants headed for America fleeing political corruption and violence. I'll talk to polling expert Dr. Sam Wang about what really matters.

And to combat the opioid epidemic, a nonprofit group here in Philadelphia wants to open the nation's first supervised injection site, but resistance from the Trump administration is strong. How will this play out? The local U.S. attorney is here, as well as the city's former mayor. I want to know what you think. Make sure you're going to smerconish.com and answering today's survey question. Should safe injection sites be permitted to combat the opioid crisis?

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[09:15:00]

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SMERCONISH: America's opioid crisis is rampant with an average of 115 opioid deaths each day. In my hometown of Philadelphia last year, drug overdoses killed more than 1,200 people. The community living under the bridges in the Kensington neighborhood has been labeled the Walmart of Heroin and so a local nonprofit called Safe House, whose board members include former Mayor Ed Rendell, is proposing a radical solution, the nation's first supervised injection site.

But it faces stiff opposition from the Trump administration. Deputy Attorney General Rod Rosenstein has warned that, quote, "Cities and counties should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action." Will Philadelphia be a test case for the nation?

Joining me now is William McSwain. He's the U.S. attorney for the Eastern District of Pennsylvania. And former Philadelphia mayor and Pennsylvania governor Ed Rendell. Governor, I'm old enough to remember you as the former DA of Philadelphia, so let me ask you this question. Is that which you propose illegal?

ED RENDELL, FORMER GOVERNOR OF PENNSYLVANIA: Well, I don't think so. I think if you look at the legislative history of the Congress when they outlawed crack houses, so-called crack houses, they never contemplated a distribution -- not a distribution -- a place where people could go and check themselves with medical personnel being there to avoid them from dying of overdoses. This is a legitimate purpose and I don't think it's illegal, but even if it is illegal, Michael, prosecutors have always had age of discretion to prosecute and not prosecute.

And Mr. McSwain, who I have a tremendous amount of respect for, says it's against the law, but so is possession of small amounts of marijuana and that's a federal crime as well as a state crime. The city of Philadelphia hasn't enforced that for small amounts -- possession of small amounts, hasn't enforced that for over a decade and yet the federal authorities have never moved once to prosecute someone who possesses a small amount of marijuanam even though it's against the law. So they use their prosecutorial discretion.

And Lord knows this safe injection site is in operation in Europe and experts say it will save 25 to 75 lives a year in Philadelphia. Isn't it worth it?

SMERCONISH: U.S. ...

RENDELL: What's the harm?

SMERCONISH: U.S. Attorney McSwain, do you have that discretion to look the other way for the sake of saving lives?

WILLIAM MCSWAIN, U.S. ATTORNEY FOR EASTERN DISTRICT OF PENNSYLVANIA: Well, good morning, Michael, and thank you for having me. The starting point, I think, for any discussion of this issue is that what is being proposed is illegal under federal law. And not just a little bit illegal, not just around the edges, not a close case where the prosecutorial discretion that the governor mentioned would come into play. In my view, it would be spectacularly, egregiously, flagrantly illegal and violation of some of our nation's most serious drug laws.

And I would also say that I don't doubt the Governor's good intentions.

[09:20:02] I don't doubt the good intentions of the proponents of these sites, but there is no good intentions exception to federal law. We don't say, for example, to the embezzler, "It's OK for you to steal that money. We understand you have good intentions for it and you're going to use it wisely." We don't say to the tax cheat, "It's OK if you're not going (ph) to pay your taxes. We understand you think government's too big and you have good intentions."

Federal law applies to everybody and when I say everybody, I mean everybody, whether you're a mayor, whether you're a governor or whether you're the average man on the street.

RENDELL: Penology difference, Michael. They do say to people who possess small lots of marijuana, who are caught red-handed, couldn't be any clearer case, they do say, "That's OK. We're not going to prosecute you." So they do use their discretion and this is a case that cries out for discretion. We have 1,217 overdose deaths a year. Seventy-five percent of them die in their own homes. Most of them are young kids and if we can prevent 50 of those, what's the harm?

These are medical personnel who, by the way, in addition to making sure that they don't overdose, talk to them about getting into treatment programs. As you know Michael, there's a successful program in Philadelphia for 26 years called Prevention Point that gives people clean needles so they can avoid contracting aids from a dirty needle. It's been in existence for 26 years, it saved a lot of lives, the percentage of AIDS cases that came from dirty needles dropped from 50 percent to 5 percent.

Last year, Prevention Point took 700 people into treatment and Prevention Point is technically illegal under the federal law as well. It's never been prosecuted by any prior administration.

MCSWAIN: If I can respond to that first of all ...

SMERCONISH: U.S. Attorney McSwain, as I hear -- as I hear the passion in the Governor's voice, and I'm not being flip, I'm envisioning a scenario where the cuffs are placed on him. I guess my question to you as U.S. Attorney is who will be within the focus of your prosecution?

MCSWAIN: Well, first of all, there may be other ways to deal with this issue short of having some sort of criminal confrontation. For example, I could imagine a court case, maybe a civil case, where a federal judge would determine whether or not this is illegal.

But let me address the Governor's point about harm. And again, I don't doubt his good intentions. I don't doubt the good intentions of the folks who are in favor of this site. I don't doubt the good intentions of the folks at Prevention Point, but there is no consensus. There is no data that says clearly that this is going to reduce harm if you have these sites. There's a lot of talk, for example, where these other sites exists and one place is Vancouver. You hear that all the time from the proponents. Well, look, they have these in Vancouver and they're a positive influence in Vancouver.

Actually, if you look at the data, they're not. Deaths, overdose deaths in Vancouver have gone up since injection sites were introduced in Vancouver. There's all sorts of externalities, negative externalities, from these sites. You'll have more drug use around the sites. You have illegal activity around the sites.

In Kensington, for example, it's an area known for its drug tourism. People talk about the drug tourism and there was a big article in "The New York Times" last weekend about people flocking to Kensington. If you think the drug tourism problem is bad now in Kensington, wait till you have a so-called safe injection site. It's going to cause major problems in the neighborhood and it's not going to reduce overdose deaths, or at least the data doesn't support the idea of reducing overdose deaths.

RENDELL: Micheal, common sense ...

SMERCONISH: Governor, take the final word.

RENDELL: As you know ...

SMERCONISH: Go ahead.

RENDELL: As you know, there's a drug called Narcan that can immediately reverse an overdose, so if I am overdosing and I am going to die. If Narcan is administered within the next 90 seconds, that will stop the overdose from occurring and it will save lives. These are going to be trained nurses and doctors, 24 hours available, all volunteers -- not doing it for a penny -- all volunteers who care about saving lives.

And it stands to reason if people overdose and there are medical personnel around to give them Narcan, it's going to save lives. The only question is how many? Twenty-five, 50, 75, 100. What's the harm? No one's going to become an addict because they can inject themselves in front of medical personnel. You have to be an addict way before you make that decision.

So Prevention Point has been a big success. It's been replicated in cities all across the country. It's technically illegal, but it's clean needles, it saves lives and no prior administration -- let me repeat, Republican or Democrat, no prior administration has moved to prosecute Prevention Point.

SMERCONISH: U.S. Attorney William McSwain, Governor, Mayor, former DA Ed Rendell. Gentlemen, thank you very much for that conversation.

[09:25:02] MCSWAIN: Thank you, Michael.

SMERCONISH: Let's see what you're saying on my Smerconish Twitter and Facebook pages. "Eyes of the nation, eyes of the world on Philadelphia to see how this plays out. No, they didn't offer safe crack houses to minorities in the 80s. They were arrested. How is this different? Fix the problem through treatments and education."

Hey, Blue57, if you had asked me about this subject 10 or 20 years ago, I would have said we're doing nothing but encouraging and coddling those addicts by even contemplating this solution. That's not my view today. Now I see that 1,200 plus have died last year alone. I guess I'm siding now with the Governor when I say what actually would be the harm? Continue to vote at smerconish.com on this survey question. Should safe injection sites be permitted to combat the opioid crisis?

Still to come, with the midterms just 17 days away now, the prognosticators keep being upended by new variables like the immigrant caravan. What do the numbers look like?

And a court is hearing the case that claims to be sticking up for a suppressed minority, but could end affirmative action in America.

(COMMERCIAL BREAK)

[09:30:30]

SMERCONISH: The midterm elections are now just 17 days away. You would think by now the outcome would be coming into focus but big questions remain. When the races began, it looked like a strong cycle for Democrats.

President Trump is now on the ballot but titular head of the GOP has consistently had underwater approval rating that right now according to Gallop is at only 44 percent. To take control of the House Democrats need to pick up 23 seats.

Now typically the party out of power in an off year election with a president below 50 percent approval gains an average of 36. Good news for them but not so fast.

The Senate's a different situation. There Democrats are defending 26 seats including five in states won by President Trump by 18 points or more while the Republicans are only defending nine.

Polling in many Senate races right now Missouri, Florida by way of example are statistical dead heats. And elections are often determined by intangibles, events that could never have been anticipated when the races began. It's unlikely that Robert Mueller will do anything of note between now and Election Day but his probe continues to cast a shadow over the administration.

So to the unexpected twist of the presumed murder of an American resident by a U.S. ally the GOP has a strong economy going forward and now the Justice Kavanaugh's confirmation is passed a satisfied base. The Democratic Party currently leaderless.

This week Elizabeth Warren sought to bury questions about her ancestry but gave that debate new life. And on Thursday "The New York Times" put in its editorial pages most prominent position a plea for Hillary Clinton to exit the stage for the next three weeks. She may have won the popular vote in 2016 but according to Gallop her favorability right now is at a record low, 36 percent. That's five points lower than the president's.

Meanwhile a caravan of thousands of migrants is making its way toward the United States underscoring the president's prioritization of boarder control. Viewed against this backdrop 17 days is an eternity.

Whatever side you're on this is a time when you can make an impact. Get active. Go vote. Joining me now is Dr. Sam Wang. He's a neuroscience professor at Princeton University also the founder of Princeton Election Consortium.

Dr. Wang, two years ago one candidate won the popular vote but lost prize. Might type of a scenario play itself out in 17 days?

SAM WANG, FOUNDER, PRINCETON ELECTION CONSORTIUM: Well, Mike, the chance that -- it's lower this year but there is a chance. So right now if you look at survey information on the House side, it is overwhelmingly likely that House candidates added up across all 435 districts, Democrats are nearly certain to win more votes than Republicans. However if they don't retake the House it will be because of gerrymandering.

And so, you know, low Trump approval as you said, voter mobilization, those are big factors but an elephant that is silently in the room is the possibility that this tilt in the playing field will still throw it to the Republicans.

SMERCONISH: You offered the opinion this week, I read your blog, that less and less voters today are breaking party ranks and splitting their tickets. That tells me that a cycle like this is all about passion who will get their core constituency out to the polls. Is that fair?

WANG: Yes. I would say for the last 20 years since the mid '90s the big trend in American politics has been greater polarization and people choosing sides. And that means that it's all about revving up the base.

And so when you look up Senate polls the reason that Republicans seem to be doing better in key states like Tennessee and Texas that coincided exactly with the Kavanaugh confirmation. So it appears that turnout whether it's a red state, blue state, purple state turn out is a key factor in modern elections.

SMERCONISH: Dr. Wang, you've seen this footage of the Honduran refugees headed towards the United States. It seems tailor made for a Trump campaign commercial given that border security is so big a part of his mantra.

What will be in your mind the political impact of what's now on television screens?

WANG: Yes. I'm going to say something really nerdy and geeky which is that, you know, if it isn't one thing it's another. I mean, the last two years has been this nonstop parade of let's say euphemistically interesting things happening in the news. And right now it's immigration.

[09:35:00]

So it's the same things we've been seeing for the last couple of years, a president who will say things about immigrants. Now strange things happening in the foreign policy, this journalist Jamal Khashoggi being killed.

So I think that's just the specific phase that we're seeing right now this week about the same kind of parade of things that we've been hearing for the last two years -- two years whether it's a beautiful wall or whatever it might be it's always something.

And I agree with you that's the thing happening this week but I think fundamentally the factors are Trump disapproval and polarized voters. So, you know, it might rev up the Republican base and I do now know the answer.

SMERCONISH: OK. Bottom line terms then. Tell me where you think stand vis-a-vis the House and the Senate they are dramatically different questions?

WANG: Yes, very different questions. Right now national surveys that looks like Democrats are likely to win the popular vote nationwide by about eight points they need to win by about six points. And that's pretty close. And so Democrats seem likely to win the House but not necessarily. Gerrymander.Princeton.edu we documented that pretty well that gerrymandering.

In the Senate it looks like it's going to be a pretty tough lift for Democrats to retake the Senate. The high water mark for them is going to be a 50/50 Senate. They could end up lower. And that's going to depend on close states like Florida, Missouri, Arizona, Tennessee, North Dakota.

So it's a -- I would say the Senate is trending Republican but we have to wait and people have to get out and vote and go to their communities where their vote matters.

SMERCONISH: Dr. Wang, final question. If I had a crystal ball to offer you and I could show you right now the result of the one particular election as a benchmark for which way this is going to go in 17 days, which race is highest in terms of curiosity that you have?

WANG: Tennessee, the Tennessee Senate race --

SMERCONISH: Really? Why?

WANG: It's super interesting. And that it's -- it's under the radar. So, you know, a lot of public attention is on places like Texas with Beto O'Rourke and Rafael Ted Cruz. But in Tennessee Bredesen is this modest guy. He's a real local, former mayor against Marsha Blackburn.

It hasn't attracted national attention but there have been moments during this campaign when it looked close and if the Democrat Bredesen goes over the top then that is going to be really good for Democratic chances in the Senate. So for me, a canary in the coalmine is very definitely the Tennessee Senate race.

I recognize that's not the most glamorous race from a national standpoint but it's a really interesting one for me.

SMERCONISH: Neuroscientist Dr. Sam Wang, thank you as always. WANG: Thanks for having me on. Take care.

SMERCONISH: A message on which we can all agree, gang, in this polarized times get active. Go vote whatever side you might be on.

Let's check in on your tweets and Facebook comments. Catherine (ph), what do we have?

"Why is the media going to Guatemala to show a caravan trying to get into Mexico? How do we know for sure that all those people are coming to the U.S.? It's misleading. It's fabricated optic to scare voters about immigration this way and change voters' minds."

Myviewasiseeit -- I don't even know how to say your handle. You're moniker. I don't accept the criticism if it's a criticism of the media for showing that footage. How do we not show that footage?

And if we didn't show that footage somebody else would be sending me a tweet right now saying, why are you covering up the footage of those from Honduras trying to make their way to the United States? We're just reporting it. You can interpret it as you see fit.

Up ahead, Harvard's admissions process went on trial this week. The university accused of setting a limit on Asian-American students but is the lawsuit actually aiming to squelch any form of affirmative action?

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[09:43:37]

SMERCONISH: A lawsuit against Harvard ending the first of trial where at issue is whether the university imposes a cap on the number of qualified Asian-American students that it admits. But is it really just an attempt to set back the entire notion of affirmative action?

In the case known as Students For Fair Admissions Verses Harvard, the plaintiffs argue that -- quote -- "An Asian-American applicant with 25 percent chance of admission, would have a 35 percent chance if he were white, 75 percent if he were Hispanic, 95 percent chance if he were African-American.

Their opening argument included a chart of characteristics of students who were much more likely to be admitted than Asian-Americans. The top three categories the intangible personal ratings, African- Americans, and offspring of alumni.

Joining me now is Adam Harris. He's a staff writer for "The Atlantic" and author of this piece, "What The Harvard Trial Is Really About." OK. Adam, I will take the bait, what is the Harvard trial really about?

ADAM HARRIS, STAFF WRITER, "THE ATLANTIC": As you mentioned the opening argument there was this interesting moment where the lawyer for Students for Fair Admissions says that the future of affirmative action is not on trial and that's because there are decade of Supreme Court precedent. But then they slowly kind of proceed to make this argument that African-Americans, Latinos are kind of unfairly benefiting in the admissions process.

[09:45:02]

And the question was always, how do Students for Fair Admissions make this leap and turn this into a discrimination case against Asian- Americans into a critique of affirmative action? And that has been made pretty clear over this first week of trial.

SMERCONISH: There was a question asked I think on day one of trial. You reported on it. I'll give the question, you give the context and the meaning.

Would you agree that race is a determinative factor for half of African-Americans? Who asked, why do they want that answer, and what was it?

HARRIS: So that question was asked by John Hughes, one of the lawyers for Students for Fair Admissions. And essentially what Hughes is trying to get the dean of admissions at Harvard to say, William Fitzsimmons, was essentially that race was the determinative factor in admissions for a group of black students. Because if race is a determinative factor on the positive side then there's a chance that race is also a negative factor for Asian-Americans.

SMERCONISH: Adam, five percent of the population you correct me if I'm wrong because I think you're well versed in these numbers. Five percent of the population Asian-American, 22 percent however of the Harvard population.

What if the plaintiffs win? What happens to the 22 percent at Harvard who are Asian-American? How will it grow and who will be impacted?

HARRIS: So if Students for Fair Admissions wins this trial and race is no longer used as a factor in the admissions process you'll see a slight increase in the Asian-American students population roughly three to five percent. But you will see a large increase in the White student population, and you see a precipitous decline in the black and Latino student population, about 50 percent from 14 percent to six percent for African-Americans, if I'm remembering it correctly, and 14 to nine percent for Latinos.

SMERCONISH: Five O, 50 percent decline in those of color as well as Latinos at Harvard according to that projection.

HARRIS: Yes and this is one of the things that Students for Fair Admissions is trying to use to say that race is a determinative factor. But Harvard's argument is essentially that the Supreme Court says that we can use race in admissions to diversify our campus.

And the argument that, you know, if we did not use race in admissions the students may not be at the institution that kind of runs directly along with the Supreme Court's precedent. Just say (ph) that we need to use affirmative action to diversify our campus and that is a goal -- a noble goal not only for black and Latino students but also for White and Asian students to have kind of the educational benefit of affirmative action.

SMERCONISH: Adam, I just have 30 left I get the impression from your coverage that this is all a dress rehearsal. As an attorney what I glean from your reportage is both sides are trying to protect this record because they know this isn't going to be the end of the issue.

HARRIS: Yes. This is kind of the dress rehearsal for a potential Supreme Court case. And right now the arguments are kind of, you know, this is as much about the public perception of Harvard's admissions process as it is about the judge's perception at this point.

Because as you're getting prepared to go in front of a friendlier Supreme Court that is against affirmative action it's nice to have the public on your side and so Students for Fair Admissions has been making a lot of arguments including legacies and donor -- the children of donors and these things that really gin up a lot of public angst.

SMERCONISH: Adam Harris, thank you. Well done. I appreciate it.

HARRIS: Thanks so much for having me.

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

"Affirmative action for all should not be ended to address the grievances of one minority group address their particular issues and thereby improve the program for all."

Harold, may I just make this observation? I think sometime we view affirmative action only through the eyes of the intended beneficiary. As the father of four three of who are still in school I think it's important to keep in mind that one of the benefits is to make sure that kids who look like mine are having experiences with a very diverse population. In other words it's not just to the advantage of those who benefit directly from affirmative action but those with whom they associate as well.

Otherwise they grow up in very monolithic environments and then enter the workforce without any understanding of the world around them. That's just my two cents.

We will give you the final results in just a moment of this survey question, this is last shot to vote, "Should safe injection sites be permitted to combat the opioid crisis?"

Go right now and vote at Smerconish.com.

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[09:54:16]

SMERCONISH: Time now to see how you responded to the survey question at Smerconish.com.

"Should safe injection sites be permitted to combat the opioid crisis?"

Survey says 7,795 votes cast. Thank you for that. Sixty-three percent say yes, 37 percent say no.

If we had run that survey a decade ago there's no way we could come with that result, right? But now I think we've all been (ph) at least a degree away from separation of this crisis.

Catherine (ph), time for one tweet. What do we have? Make it a winner.

"Smerconish, how can we even be assured the polls are accurate? I had thought we all felt doped by the polls with the 2016 Trump win."

Paul, you make a good point.

[09:55:00]

There's only one poll that matters, right? It's when we actually go out and they open up those ballots and you're right so many. I'll say of us learn the hard lesson about buying into the polls two years ago.

I say to my kids, the only thing worse than you cancelling out my vote is that you didn't vote at all. So as I said earlier whatever side you're on go get active and cast a ballot.

We can catch up on the program at any time at CNN Go and On Demand. I'll see you next week.

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