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SMERCONISH

Happy 5th On-Air Anniversary Victor And Christi; Vegetative Woman Gives Birth; Justice Ginsburg's Health And The Future Of SCOTUS; Allow Cameras In The Supreme Court; Ginsburg Misses Court Arguments While Recuperating; Will Thomas Retire Early To Ensure A Young Conservative Pick?; Are Marijuana Advocates Ignoring Its Dangers?; Does Marijuana Lead To Increase In Mental Illness; NYT: FBI Investigated Why Trump's Actions Seemed To Benefit Russia; What Was Factual Basis For FBI Launching Trump Investigation?; Will "Times" Story On Obstruction Impact Barr's Attorney General Hearing?; Comatose Woman Gives Birth; What Should Happen To The Vegas Shooter's Guns?. Aired 9-10a ET

Aired January 12, 2019 - 09:00   ET

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


CHRISTI PAUL, CNN ANCHOR, NEW DAY WEEKEND: And look at -- look at -- that shows you how darn short I am.

VICTOR BLACKWELL, CNN ANCHOR, NEW DAY WEEKEND: I've enjoyed it.

PAUL: I have, too.

BLACKWELL: Let's do five more.

PAUL: Let's do it, shall we? All right. You're mouth to God's ears.

BLACKWELL: Yes.

PAUL: Well, we're back at 10 A.M. Eastern for CNN NEWSROOM.

BLACKWELL: SMERCONISH starts now.

MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Well, we're now officially in the longest federal shutdown in American history and no sign of relief.

Meanwhile, "The New York Times" reporting this morning that back when James Comey was fired, the FBI felt compelled to investigate whether the President was actively working to benefit Russia. The headline is devastating, but my view is that the story raises more questions than it answers and I'll explain.

Plus, after cancer surgery, just as Ruth Bader Ginsburg missed her first week of oral arguments in 25 years and will remain out next week where the 85-year-old justice is still working. I've got an idea about how to keep her looped in.

And America is going green, at least when it comes to legalizing pot, but the author of a new book is here and says advocates are ignoring serious mental health and societal side-effects. Plus, listen to this 911 call.

(BEGIN VIDEO CLIP)

CALLER: One of our patients just had a baby and we had no idea she was pregnant.

OPERATOR: OK. Is the baby out?

CALLER: We were not prepared for -- baby's turning blue. We need someone now.

(END VIDEO CLIP)

SMERCONISH: The 29-year-old woman in a vegetative state since 1992 gives birth in an assisted care facility, so police are forcing all the male employees to give DNA samples. Understandable as a law enforcement tactic, but is it legal?

And this moral dilemma. the families of the victims of the Las Vegas Massacre are going to receive all the proceeds from the killer's estate, but should his huge cache of weapons be sold, returning them into circulation, or be destroyed even though it means less compensation for the families?

But, first recovering from cancer surgery, Justice Ruth Bader Ginsburg missed oral arguments this week and will miss them again next week. "Politico" reported that the White House legal counsel has been looking into next steps if something should happen to her, but the White House said that there are, quote, "No preparations for anything other than Justice Ginsburg's return to the bench."

The 85-year-old justice was recuperating at home following the December 21st surgery to remove two nodules from her left lung. The court spokesman said Ginsburg's recovery from surgery is, quote, "On track with no evidence of remaining disease." That's great news, but I want to call attention to something else, the way in which she's keeping up with the court proceedings.

Chief Justice John Roberts noted that Ginsburg's absence when the justices took their seats for oral arguments and said that while Ginsburg is unable to be present for the courts sitting, she will -- and this is the key part -- quote, "Participate in the decisions using transcripts of the arguments and court briefs." Roberts didn't even make reference to the audio recordings that are made of Supreme Court proceedings, but here's what it brought to my mind.

Earlier this week, Kevin Spacey was arraigned in Nantucket and we all watched. Why? Because there were cameras in the courtroom. The Ginsberg situation is a great example as to why there should also be cameras in the Supreme Court of the United States. You have a right, assuming you stand in line and get in, to go sit and watch the proceedings of the Supreme Court. Why shouldn't we all be able to watch without having to go there? Why shouldn't Justice Ginsburg be able to watch the arguments given her own absence? And you know who I think would agree with me? Justice Ginsberg herself. This exchange with Senator Orrin Hatch is from her judiciary confirmation hearings in July of 1993.

(BEGIN VIDEO CLIP)

ORRIN HATCH, UNITED STATES SENATOR: Are you for or against TV coverage about (ph) the court?

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: I don't see any problem with having proceedings televised. I think it would be good for the public.

(END VIDEO CLIP)

SMERCONISH: Interesting, right? She was right then. The argument's even stronger today, 25 years later. There should be cameras. There should be televising of what goes on in the Supreme Court of the United States.

Joining me now to discuss is Jeffrey Rosen. He's writing a book due out this September, "Conversations with RBG," based on his decades of talks with the Justice. He's known her so long that she officiated his wedding. He's also the President and CEO of the National Constitution Center and a professor at George Washington Law School.

I want to ask a hypothetical question, Jeffrey. We all wish her Godspeed, but what's the process when you have a Supreme Court who is infirmed and does not retire? Is there any solution to that?

JEFFREY ROSEN, AUTHOR, "CONVERSATIONS WITH RBG": The process is that she or he has to be persuaded to step down. Justice Oliver Wendell Holmes was in his 90s. He refused to step down and his colleagues visited him and said you've got to do it for the good of the country and they all wept and he agreed. So no, there is no process. Justice William O. Douglas was in a wheelchair hearing cases long after he was competent. Happily, Justice Ginsburg is nowhere in that category.

[09:05:00] She is -- has all of her faculties. She's fully on track to recover and will be back on the bench at the next session in February, but generally, if a justice refuses to retire, it's just up to them and their colleagues.

SMERCONISH: God forbid her condition were worse, does she strike you, knowing you as you -- knowing her as you do, as the type who would hang on till the bitter end because Donald Trump surely would nominate someone who doesn't have the same judicial philosophy?

ROSEN: She has said I will do the -- this great job as long as I am able, and she is absolutely able in every possible respect at the moment. She certainly will want to hang on until after the Trump presidency. She's made no secret of her views. They're clear, but I think happily that she's going to be in good shape for a long time to come.

SMERCONISH: I noticed that even some voices on the right are taking a look at the political dynamics surrounding this administration and saying hm, maybe Clarence Thomas should leave sooner than later so as to ensure that during the first term of the Trump administration, it's Donald Trump who gets to appoint his successor.

ROSEN: Yes, the likeliest possibility for the next seat is indeed Justice Thomas. He's signalled that he might like to retire. He loves to drive around the country on an RV and meet real people, so I think he feels like he may have done his stint. Now, that would be an extraordinary opportunity. That would mean three Supreme Court justices for President Trump, nearing presidential records. President Nixon had four. My hero, William Howard Taft, had six appointees, but three in a first term would be quite a lot. That would be an opportunity to put a young conservative on the court again for decades to come and it would solidify President Trump's central legacy. The most important thing President Trump will do is his appointments to the Supreme Court and the lower federal courts.

SMERCONISH: Well, to your last point, Jeffrey, there's so much attention placed on the Supreme Court of the United States, but often out of the limelight is the repopulating of the federal bench at the district court and circuit court level. That's fully underway and the President, this president, is leaving his thumbprint there.

ROSEN: It's so important and especially as the Supreme Court under Chief Justice John Roberts may be inclined to duck really controversial questions because the chief is trying to create bipartisan unanimity and preserve the court's legitimacy. That means that hugely important questions ranging from new travel ban questions to the Affordable Care Act, possibly even to the president's use of emergency powers could be resolved not at the Supreme Court, but in the lower federal courts and that's why those appointments are absolutely central for Americans to pay attention to.

SMERCONISH: And finally, am I naive in thinking that we may, at some point in the near future, get cameras in the Supreme Court of the United States?

ROSEN: I love the fact that you found that clip from Justice Ginsburg's confirmation hearings. The younger justices are for it. Justice Scalia used to say the problem is people would look at the clips out of context and if you could force people to watch the whole thing from beginning to end, that would be fine, but otherwise, he's not for them. But no, I think it's conceivable in our lifetime.

Now, Justice Ginsburg reading the transcript is something that all the judges do after the arguments anyway and American CNN viewers can read those transcripts too, just like Justice Ginsburg, get them right after the Supreme Court arguments. They're right online. They're a constitutional feast and a great way of educating yourself about the Supreme Court.

SMERCONISH: A constitutional feast ...

ROSEN: Yes.

SMERCONISH: ... says the President and CEO of the National Constitution Center. Jeffrey, thank you as always.

ROSEN: Thank you.

SMERCONISH: Reminder, tonight at 8 P.M. Eastern, CNN airing the documentary program, "RBG." You'll want to watch that. What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some during the course of this program. What do we have, Catherine?

"Smerconish, she better live forever," says Mindy Zee's. Well, I mean that -- that's -- look, when you replaced -- when the Kennedy replacement was Cavanaugh, understanding how Kennedy had been, he who tethered the center, it didn't dramatically impact the Supreme Court of the United States. I don't want this to be in bad taste. I hope she lives to 150 and that the last voice that she hears is mine, but in the event President Trump were to have a replacement for Ruth Bader Ginsburg or one of the other liberal justices of the court, that would be a monumental shift in the court thinking.

One more if I've got time. "Smerconish, food for thought. I, like you, was an advocate for cameras in the court room of the Supreme Court. However, given what cameras in the Senate have done to hearings there, do you think it's in the best interest of the court to bring them in?"

Paul, I think we have a constitutional right to see what's going on. I think transparency demands it and I was struck watching Kevin Spacey in Nantucket and thinking to myself, why can I see his arraignment and I can't watch Supreme Court arguments? Why can't Ruth Bader Ginsburg, at home, recovering, watch Supreme Court arguments? There's a disconnect there that's got to be fixed.

Still to come, a devastating front-page "Times" headline for the President, the FBI suspecting him of being in cahoots with the Russians, but what's really new here?

And America looks like it's going green, at least when it comes to marijuana, but are advocates ignoring serious mental health and societal side effects, like an increase in violent crime?

[09:10:09] The author of a controversial new book says yes and he's here and this leads to this week's survey question at my website, Smerconish.com. I want to know do you believe that marijuana is dangerous to the brain and can ultimately cause violence? Go vote.

(COMMERCIAL BREAK)

SMERCONISH: America seems on the verge of accepting legal marijuana as a nation, not just medicinal, but recreational as well. But are advocates ignoring dark truths about the drug? That's the thesis of a brand-new book, "Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence" by former "New York Times" reporter Alex Berenson. Berenson claims that extensive teenage use of today's much more powerful and available pot is leading to psychosis and violence.

Alex Berenson joins me now, along with Dr. David Nathan. He's the Board President of Doctors for Cannabis Regulation, a psychiatrist specializing in psychotic disorders. Alex Berenson, for those who have not yet read the book, I have, what's the goal? Are you all about zero tolerance or building awareness?

[09:15:00] ALEX BERENSON, FMR NYT REPORTER & AUTHOR, "TELL YOUR CHILDREN": Oh, no, I'm not about zero tolerance. We -- there's no way we're going to put 40 million people in jail or prison for using marijuana. We need people to know the risks here and we need to come up with a scheme for regulation and probably decriminalization. I don't favor full legalization, but decriminalization where users are going to -- are going to get the information they need and they're going to get -- they're going to get help if they need help.

But most of all, we need to make sure they know the risks about this drug, that most of the medical claims around it are not proven and not supported by much scientific evidence and that this can be an addictive drug, that it is a potent drug, that it is linked to psychosis. That's what I want and that's why I wrote the book.

SMERCONISH: The idea -- the idea that it leads to violence seems so counterintuitive. Do you not buy into the stoner stereotype?

BERENSON: Obviously there are plenty of people who can use marijuana and not become violent, but psychosis is a known risk for violence and cannabis use is a known risk for psychosis. And you know, it's funny. With alcohol, we have people out there who drink a lot and some of them get violent, some of them sit at home on their couches and drink scotch until they fall asleep. We know both those things are true. They can both be true for marijuana and the evidence suggests -- the hard scientific evidence suggests that those both are true, but we've sort of forgotten that.

SMERCONISH: One more question for you and then I'll let Dr. Nathan respond. Relative to mental illness, is the argument that smoking pot causes mental illness or that it exacerbates those traits and characteristics of folks who are already afflicted?

BERENSON: So it certainly can cause temporary psychotic episodes. It can cause paranoia. It can cause panic attacks. It can cause temporary psychotic episodes. I think the evidence is quite strong and the National Academy of Medicine report from 2017 said cannabis use raises the risk of developing schizophrenia. The higher the use, the higher the risk. That, to me, is very clear language.

There are people on the advocacy side, and I suspect Dr. Nathan may be one of them, who say that hasn't been proven yet. I think it has been proven enough that it is something we need to warn people about.

SMERCONISH: Dr. Nathan, will you respond first to the argument relative to violence and then to the argument pertaining to mental health?

DAVID NATHAN, BOARD PRESIDENT, DOCTORS FOR CANNABIS REGULATION: Sure. It's pretty clear that what Alex is saying is simply not supported by science. There is not the correlation between cannabis and violence and in fact, some studies actually show the opposite. Can you find studies that show that there is some linkage? Yes, but you can also find studies that show no effect and just recently there was a study showing that the rates of violence among couples, domestic violence is decreased among cannabis using couples.

SMERCONISH: And on the issue of mental health, what connection, if any, do you believe exists between smoking pot and psychosis or schizophrenia?

NATHAN: Sure. You know, the claim that advocates have been either suppressing or denying what's going on with cannabis and its effect on mental health is simply untrue. First of all, I wrote an article in 2013 about the possible relationship between the triggering of psychosis and the exacerbation of psychosis among cannabis users that are predisposed to psychosis.

And perhaps, Alex, you should have read that because in your book you're saying that not only is this not true, but that somehow we are hiding this fact. And the bottom line is that we know that the arrow goes in the opposite direction. The people who are predisposed to mental illness will self-medicate with cannabis and that's also true among people with psychosis.

Now, as far as educating the public about the real risks of psychosis, I agree that it's important to acknowledge the degree to which people who are predisposed to psychosis should not be using cannabis recreationally, certainly not outside of a doctor's supervision. But I would say that this book that you've written that is really one-sided and as you say in your opening chapter, that it's -- it is not intended to be balanced.

Well, that's a real disservice to the public that needs to know what the real risks and the real health effects of cannabis are and this whole thing actually just sidesteps the question of the social justice costs of -- and public health costs of the prohibition itself.

BERENSON: So ...

SMERCONISH: Alex Berenson, go ahead.

BERENSON: So you'll note that Dr. Nathan didn't say that he doesn't believe that cannabis causes psychosis, certainly that it doesn't cause temporary psychosis because he knows. He's a -- he's a physician. He's a psychiatrist. He knows the truth about this. He said that he has discussed this openly and that's great. I'm glad to hear that.

As for the violence issue, there are -- there are -- I have more than a dozen studies in the book with rate ratios, meaning that show an actual increase in violence in cannabis users.

[09:20:09] There's devastating data around child fatalities and child near-fatalities showing that a huge percentage of the people -- and this is -- this is from multiple states -- who have -- who are involved in the death or the near death of a child in their care are using cannabis at the time. There's a lot of data here that has been piling up sort of quietly for the last five or 10 years and I think -- I think advocates are going to need to grapple with this, that this is real. This does not mean that we're going to put millions of people in jail for cannabis use, but we need to understand that this drug is not risk-free. It's not the panacea that's -- that it's being sold as by both the advocacy community and the for-profit, you know, dispensary and grower community.

NATHAN: Look, Alex ...

SMERCONISH: Alex Berenson, Dr. David Nathan, thank you.

NATHAN: Thank you.

BERENSON: Thanks very much.

SMERCONISH: It's a great conversation that I feel is just getting started. Appreciate your both being here.

NATHAN: Thank you.

BERENSON: Thanks very much.

SMERCONISH: Want to know what you think. Go to my website at Smerconish.com. Answer this question. What's your view? Do you believe that marijuana is dangerous to the brain and can ultimately cause violence?

Up ahead, "The New York Times" front page has a devastating headline, "FBI investigated if Trump worked for Russians." This has predictably sent the President on a Twitter tear against "The Times," Comey, Hillary. My question is might this affect next week's confirmation hearings of his attorney general pick?

Plus, the Las Vegas shooter's estate is being liquidated to benefit his victims' families, including around $63,000 in guns. Should they be sold or destroyed?

(COMMERCIAL BREAK)

[09:25:00]

(COMMERCIAL BREAK)

UNIDENTIFIED MALE: This is CNN, the most trusted name in news.

SMERCONISH: The lead story in today's "New York Times" reports that after President Trump fired FBI director James Comey, this and several other troubling actions spurred the FBI to open an investigation into whether Trump was secretly working on behalf of Russia, whether wittingly or unwittingly. The White House immediately pushed back.

Press Secretary Sarah Huckabee Sanders said, quote, "This is absurd. James Comey was fired because he's a disgraced partisan hack and his Deputy, Andrew McCabe, who was in charge at the time, is a known liar fired by the FBI. Unlike President Obama, who let Russia and other foreign adversaries push America around, President Trump has actually been tough on Russia."

The President has been on fire about this on Twitter this morning. Joining me to discuss is Elie Honig, the former federal prosecutor in the Southern District of New York. Elie, when I first read the story at 4:30 this morning, I thought well, this is devastating for the President. By the third time that I read it, I thought maybe it raised more questions than it answered. Here's the lead. Let me read the lead to everybody.

"In the days after President Trump fired James B. Comey as FBI director, law enforcement officials became so concerned by the President's behavior they began investigating whether he'd been working on behalf of Russia against American interests according to former law enforcement officials and others familiar with the investigation."

Well, who are these law enforcement officials? At what level were they operating? Who gave them the approval to do so? Because this is the President of the United States. With what conclusion, et cetera, et cetera, et cetera? Am I wrong to be suspicious of the story as presenting a better headline than it did content?

ELIE HONIG, FORMER FEDERAL PROSECUTOR, SOUTHERN DISTRICT OF NEW YORK: There absolutely are a lot of questions that come out of this story, Michael. As I went through it, I had -- I had many, many questions as well. I think one thing that's really important to understand at the outset that maybe not everybody understands about the FBI is there are essentially two sides of the house in the FBI.

There's the criminal side, which I think everyone sort of understands. This is what you see on TV, FBI, freeze, you're under arrest, and that's a side that I work with primarily as an Assistant United States Attorney.

But there also is an intelligence side. And I remember Robert Mueller, when he was director of the FBI, came to speak to us at the Southern District somewhere around 2010 and he explained to us that when 9/11 happened, the FBI shifted enormous resources from the criminal side over to the counter-intel side, which includes cybersecurity, national security, counter-intel, that kind of thing. And he said at the time, that will be the way the FBI is for a long time moving forward. Now it's about 50/50. So understand that the FBI sort of has these dual functions.

I have a lot of questions. The first question that came to my mind was what was the factual basis for opening up the counter-intel investigation? "The New York Times" article talks about a lot of things that we all know that are already in the public record. the President's statements to Lester Holt about having fired Comey because of Russia, the President's reported conversation with Kislyak in the Oval Office. My biggest question which the article does not answer, probably could not answer, is was there more underlying that decision?

SMERCONISH: Well, was it -- was it also just a few agents who, in an informal way, took it upon themselves to make inquiry of some type or was this a formal process? He was the President of the United States. You know, you know better than I when you're investigating an elected official, anybody ...

HONIG: Yeah.

SMERCONISH: ... much less the President of the United States, there's a whole process. That's got to be signed off on at the highest level and I thought with the story -- where it came up the most short for me was in not saying, here's someone who took ownership of investigating President Donald Trump.

HONIG: Yeah. I agree with you, Michael. I think you're right. In order to open up an investigation, whether criminal side or intel side, on the president, I think the most powerful person in the country and probably the world, that would have to go all the way up to the absolute top of the FBI. The article does not answer that question and, of course, that's one of the other sort of million-dollar questions that remains out there.

SMERCONSIH: OK. And as you've pointed out, it's the firing of Comey, the Lester Holt interview, that supposedly gave rise to this investigation. Let's look forward, because you wrote a great piece for CNN.com.

[09:30:00]

This coming week Bill Barr's confirmation hearings begin in the judiciary committee of the United States Senate.

How will that relate to what we're discussing?

HONIG: Yes. So the Senate needs to really question William Barr very carefully about his views of Mueller's obstruction of justice investigation because William Barr has already gone on record as -- in his prior capacity as a private citizen, really pretty strongly attacking Robert Mueller and that investigation.

You recall William Barr sent this letter in 2018 unsolicited while he was working at a private law firm to the Department of Justice excoriating Mueller and excoriating the obstruction of justice investigation. He says it's overzealous. He says it's unlawful.

In a prior interview, William Barr went so far as to tell "The Hill" in 2017 that he found Mueller's obstruction theory "asinine," that's a quote. And it seems that Barr's theory is he is the president, he's is in charge of the executive branch. The Department of Justice is part of the executive branch and he can do whatever he wants.

Here's a quote that Barr actually said, he said, "The president, if he placed his thumb on the scale in favor of lenity for Flynn, that was plainly within his discretion and there is no legal prohibition against a president acting on a matter in which he has a personal stake."

Those are William Barr's own words. So if I'm a U.S. senator interrogating or questioning Barr next week I would say, do you stand by that, and by your own logic does that mean that if Robert Mueller gets too close to you or to the president or to anybody you want to protect, the president is clear to just shut that down without legal consequence?

SMERCONISH: And let me try and put the two stories together. The "New York Times" says that certain folks unidentified in the FBI were so alarmed by the firing of Jim Comey that they began investigating the president. Meanwhile, William Barr says the president had an unfettered constitutional right to get rid of James Comey and that is not a legitimate reason for Mueller to be investigating Trump.

HONIG: Absolutely. And look the attorney general is going to be making crucial decisions in the months ahead about what ultimately becomes of Mueller's investigation. Remember the Mueller report which we're all anticipating the big fulcrum for that, the turning point is going to be the attorney general.

Robert Mueller has to provide that report to the attorney general. The attorney general then has some major decisions to make.

Do I provide to Congress? Do we make it public? Do we take out certain pieces of it?

And if your view as the attorney general is the president can do whatever he wants with respect to shutting down an investigation because he's the president and he's above the law I think that an enormous problem, an enormous issue. And I think senators on both sides of aisle really need to dig into that next week at the hearing.

SMERCONISH: Elie, that was great. Thank you so much.

HONIG: Thanks, Michael.

SMERCONISH: Let's check in on your tweets and Facebook comments. What do we have from social media?

"You sound like a 'Trumper.' Indict him."

You know, Bruce, I knew -- I did a Facebook video this morning before coming on air. I always try and give a little bit of a sneak peek into what's going on with the program. Check the tape because I said this morning, an hour, 90 minutes before coming on air. When I offer my thought on this story, I know I will be deluged with people who say, oh, you're carrying his water again.

No I read the story three times and I asked myself. Where's the beef? If you're going to put it out there that the president of the United States was investigated by the FBI for being a tool of the Russians, you got to give me something.

Who signed off on that? Who conducted that investigation? How many people were on the loop on it? Et cetera, et cetera, et cetera.

I didn't see (ph) that. And I'm not going to sit here silently, if I have that kind of an observation. One more, if I've got time for it. I knew there would be that reaction. I knew it.

"Because Trump fires deep state Comey, crooks and his friends open an investigation of the president of the United States. That is the real story. Trump should have been fired all of the top people."

Listen, this thing is soon to come to a conclusion. I can't help if all of the border attention and the government shutdown is with an eye toward taking our focus off the conclusion of the Mueller probe because it has to be eminent (ph). And there's just no scenario I see where there's a good outcome for the president.

There might not be a colorable case that's established for conspiracy, collusion, or obstruction of justice. There is no way it will be a good read at the White House.

Would we have this government? I'll flat out say it. Would we have this government shutdown, would we have this debate over the border? But for the seemingly imminent release of the Mueller report, I wonder.

I want to remind you, answer the survey question today at Smerconish.com. Tremendous interest in this. Do you believe that marijuana is dangerous to the brain and can ultimately cause violence?

Still to come, 29-year-old Arizona woman in a comatose state for decades living in an assisted care facility gave birth to a baby in December.

[09:35:09]

Now detectives are collecting DNA samples from all the male employees. Is this good police work or a violation of civil rights?

SGT. TOMMY THOMPSON, PHOENIX POLICE DEPARTMENT: Just let's suffice it to say, DNA would be one of our key tools in this investigation.

(COMMERCIAL BREAK)

SMERCONISH: A horrifying story from Phoenix that took place at the Hacienda HealthCare facility. A 29-year-old woman who has been in a vegetative state since 1992 reportedly from a near drowning incident gave birth to a baby boy. Here is the remarkable audio of the 911 call from a distressed facility employee who says none of them knew the woman had been pregnant.

(BEGIN AUDIO CLIP)

UNIDENTIFIED FEMALE: The baby's turning blue, baby's turning blue.

UNIDENTIFIED MALE: What's the emergency?

UNIDENTIFIED FEMALE: One of our patients just had a baby and we had no idea she was pregnant.

UNIDENTIFIED MALE: OK, is the baby out?

[09:40:01]

UNIDENTIFIED FEMALE: Baby's turning blue. We need someone now.

We're we able to get the baby out? Is the baby breathing? Is the baby breathing?

Baby's not breathing, baby is blue.

UNIDENTIFIED MALE: OK so are they doing CPR?

UNIDENTIFIED FEMALE: Are they doing CP -- yes, they're doing CPR on the baby.

UNIDENTIFIED MALE: OK good, just keep going with that. How is mom doing?

UNIDENTIFIED FEMALE: Mom's doing well, it looks like she's doing well.

UNIDENTIFIED MALE: How far along was she?

UNIDENTIFIED FEMALE: We had no idea this person was pregnant. We had no idea this patient was pregnant.

UNIDENTIFIED MALE: I understand. Does she know how far along she was or anything?

UNIDENTIFIED FEMALE: We have no idea. This is a complete surprise, we were not expecting this.

They want you guys to still do compressions. The baby's breathing? Oh, the baby's breathing. Oh my God, thank God.

(END AUDIO CLIP)

SMERCONISH: She and the baby boy who was in medical distress both survived the December 29th birth but remain hospitalized. Obviously the woman, a member of the San Carlos Apache Tribe was the victim of sexual assault given that she lacks the ability to consent. So police investigators are gathering DNA from men who work at the facility and for those who didn't voluntarily give samples investigators obtained court orders commanding them to do so.

Of course this is a horrendous situation that requires a criminal investigation but in the world of DNA collection, there are some privacy concerns here. How wide a net can investigators cast? Family, community members? And what happens to all the DNA samples ruled not to be relevant?

Joining me now is Natalie Ram, assistant law professor of bioethics at the University of Baltimore. Professor, I think I had this in law school as a hypothetical. I mean, what if it's a town of 50 people or 500 or 5,000 people? At what point do the privacy rights of those that you are forcing to give DNA outweigh the ability to solve this crime?

NATALIE RAM, ASSISTANT LAW PROFESSOR OF BIOETHICS ISSUES, UNIVERSITY OF BALTIMORE: So what the police are doing in this case amounts to a DNA dragnet. This isn't the first time police have undertaken an effort like this to collect DNA from as wide a swath of people that might fit the general description. But the samples, if they're voluntarily given, that's generally deemed to be within the bound of the fourth amendment, right?

But we might have serious questions about voluntariness, where there is a court order compelling DNA in the background. And we might also have questions about what the basis is for that court order. In this case, it sounds like police don't have a suspect yet at all which means that there is an individualized suspicion about any single person.

SMERCONISH: Let's take a look at what the Phoenix P.D. has had to say on this issue. Roll it.

(BEGIN VIDEO CLIP)

THOMPSON: A search warrant is used based on a probable cause to obtain evidence, such as reports, medical reports. Things that are protected under HIPAA. When we do a buckle swab, when we gather that evidence, that's based upon reasonable cause and that's a court order.

Again, it's going down the same question that's been asked and I'm stepping away from it because of the fact that I don't want to mislead you as far as where we are going with DNA evidence. But just keep that in mind, we still have a very wide scope of our investigation.

(END VIDEO CLIP)

SMERCONISH: Professor, doesn't probable cause diminish the larger the pool that you are looking at?

RAM: Yes, so probable cause is typically required to include individualized suspicions, suspicion particular to particular individual who believe they were involved in a particular crime. Here it sound like the police don't have particularized suspicion about any individual -- any specific individual and that I think is cause for concern.

Now the detective referred to reasonable suspicion. But there are -- there isn't a lot of law on the books or any really that I'm aware of that suggest that reasonable suspicion alone is sufficient to compel a DNA sample. The Supreme Court has told us that probable cause is sufficient.

But here I don't think we have anything that approaches probably cause. And your mere refusal to consent to a voluntary sample shouldn't be a part of the analysis of whether there is probably cause to compel a sample.

SMERCONISH: You know what I brought this up on radio and some people said, well, don't you want them to solve the crime? And I said, yes, I want them to solve the crime but I want to protect the privacy rights of everybody and I dropped the Ben Franklin bomb on that caller.

Put that quickly up on the screen and then I'll give the professor the final word.

"Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty or safety."

You get the final word, Professor.

RAM: Well, I think that what we should keep in mind is that DNA is being collected from an awful lot of people who did not commit this crime. And so we should have concerns about what happens to the DNA of innocent people in this investigation moving forward.

SMERCONISH: Thank you so much for being here.

RAM: Thank you.

SMERCONISH: Still to come, should the guns of the Las Vegas shooter be sold to benefit the victim families?

[09:45:02]

Returning them into circulation or be destroyed sacrificing the proceeds?

(COMMERCIAL BREAK)

SMERCONISH: Question, what should happen to the guns owned by the shooter in the October, 2017, Las Vegas massacre? It's a real life moral issue.

You will remember that on October 1st, 2017, a gunman opened fire from the 32nd floor of the Mandalay Bay Hotel killing 58 and injuring over 400. The shooter's $1.4 million estate is being liquidated with the proceeds being distributed to the families of the 58 people that he killed. At the crime scene alone police found 23 guns, 12 of them fitted with bump stocks.

[09:50:03]

He fired off more than 1,100 rounds before killing himself. But selling his huge arsenal in all worth about $63,000 would mean the guns that killed these innocents are back in circulation potentially to shoot again, or maybe become part of a collection of somebody with an interest in the macabre. But if they're just destroyed, that would take away money from victim families.

Joining me now is Alice Denton, the lawyer for the special administrator appointed by a state court judge to determine the value of the estate. So, Alice, he died without a will, his mother inherits his estate under state law. She has assigned her rights.

And now you've got this Solomon-esque task of deciding what to do with the weapons? What are your choices?

ALICE DENTON, ATTORNEY FOR SPECIAL ADMINISTRATOR FOR VEGAS SHOOTER'S ESTATE: Under Nevada law the special administrator has the responsibility of liquidating the assets of the decedent's estate for the benefit of the creditors and the heirs of the estate. Irene Hudson in a compassionate move has assigned her right to inherit to these 58 victims who died in the massacre.

The question becomes if we liquidate these guns and sell these guns which is required as part of the special administrator's duty, we will be perpetuating the violence that actually caused the death of those individuals who will be receiving the guns. In the New York article, the quandary has been put before the country.

Do we perpetuate the violence by putting these guns back into the hands of unknown people who could use them to hurt and maim other people or do we destroy them?

SMERCONISH: When I read that story, you're referring to Serge (ph) Kovaleski's (ph) story and I interviewed him on radio about this immediately a light bulb went off in my head which said there's a third way, a GoFundMe campaign where those of us that want to make a donation make a donation. When it gets to $63,000, that money buys the guns so that the victims get what should come to them, but then we destroy all the weapons. Might that happen?

DENTON: Under Nevada law if you sell the guns, you have to go through a specific procedure where you notice the sale up and they -- the bids are then put on the guns. Under this procedure there would be an actual sale of the guns which would mean that the GoFundMe account might not work.

Since the publication of the "New York Times'" article, I have received several offers from donors who have come forth and who are willing to donate to the estate the $62,500, which is the appraised value of the guns with the stipulation that I obtain a court order directing that the guns be destroyed and that a certificate of or evidence that the guns have been destroyed be provided to them. We are -- go ahead.

SMERCONISH: No, I'm out of time. But will that happen? If somebody writes that check, will you destroy the weapons, pending court approval?

DENTON: If I receive the check, which I do believe will be received in the upcoming days, it will be deposited into the attorney's trust account. Then I will petition the court and ask the court for permission to conclude --

SMERCONISH: I see.

DENTON: -- this agreement whereby I would hold the money until the guns have been actually destroyed so that the donors' requests are met and the social value of telling the world that we will not sell guns at any price will be set forth to the world and the Las Vegas community. SMERCONISH: Alice Denton, aka Solomon, thank you for being here.

DENTON: Thank you.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. And have you voted at Smerconish.com on the survey question?

"Do you believe that marijuana is dangerous to the brain and can ultimately cause violence?

(COMMERCIAL BREAK)

[09:59:33]

SMERCONISH: Time to see how you responded to the survey at Smerconish.com. Here's the question.

"Do you believe that marijuana is dangerous to the brain and can ultimately cause violence?" Survey said 10,937 votes, 78 percent -- pretty decisive say no, they don't agree.

Quickly, Katherine (ph), what do we have?

"Smerconish, I've been smoking pot all my life and it hasn't affected me a b, b, b -- wait. What was the question?"

Right. But you're not violent are you, Dennis?

[10:00:00]

One more quickly. Do we have time?

"You lost your G.D. mind." Yes, I have. The privacy rights of the poor woman. What about the privacy rights if there are 500 people who are forced to give DNA?

I'll see you next week.