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SMERCONISH

Thank You, Howard Schultz; Why The Hostility To Howard Schultz Running?; Can Virginia Governor Survive Racist Photo Controversy?; Northam Claims He Cannot Recall Which Person He Is In Photo; Will Trump End Up Dodging Mueller Probe Charges?; Legalizing Pro Sports Gambling. Aired 9-10a ET

Aired February 2, 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: We appreciate it. Victor?

VICTOR BLACKWELL, CNN ANCHOR, NEW DAY WEEKEND: All right, Christi. Thank you very much. More news straight ahead. "SMERCONISH" is next. We'll see you again in one hour.

MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Hey, I'm appalled by the blowback to Howard Schultz's possible run. We should be thanking him, not be attacking him. I'll explain why the naysayers are all wrong.

Plus, bad week for Virginia Governor Ralph Northam. This racist photograph on his med school yearbook page follows a backlash about his controversial comments about late-term abortions. Will he survive?

And he wasn't Jr.'s mystery caller around the Trump tower meeting. Rod Rosenstein told his lawyers he's not a subject or a target. Might the president end up dodging the Mueller probe's net?

Plus, tomorrow's Super Bowl will be historical in American gambling history. Thanks to a Supreme Court ruling, bets on the game are now legal in eight states and soon, sports gambling could go nationwide. Will this make sports better or worse?

But first, I love our country. I am seriously thinking of running for president as a Centrist Independent. For tweeting and repeating that sentiment, Howard Schultz, the former CEO of Starbucks, received a remarkable public spanking this week. Just look at these headlines. Instead of applauding the willingness of a 65-year-old Horatio Alger, accomplished businessman and legitimate billionaire to enter the arena, he was lambasted and literally heckled. At a book event this week in New York City, Schultz endured this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Don't help elect Trump you egotistical, billionaire a******* (ph).

(END VIDEO CLIP)

SMERCONISH: He was peppered with questions, asked a ridiculous riddle about the price of Cheerios in the hope that he'd be embarrassed out of the race. The criticism came from the left from Democrats concerned that his presence in the race would lead to Donald Trump's re- election.

Howard Schultz, they would have us believe, would be the 2020 spoiler version of 1980's John Anderson, 1992's Ross Perot, Ralph Nader in 2000 or 2016's Jill Stein and Gary Johnson, but that argument is belied by the facts. None of those candidates altered the course of those elections. Ronald Reagan wiped out Jimmy Carter in 1980, John Anderson captured only 6.6 percent of the vote and zero electoral votes. He may have altered the debate, but on Election Day, he was a non-entity.

In 1992, despite political lore, Ross Perot did not cost George H.W. Bush his re-election fight when facing Bill Clinton. Perot won 19 percent of the popular vote but, no, Perot did not cost Bush the election. And if you think otherwise, then you should watch "The Perot Myth," which is a film from 538 and ESPN Films.

Remember, Perot got out of the race in July, came back October 1st. When he joined the debates, he made an impact. When it was over, he garnered 19 percent, the highest share as a third party since Teddy Roosevelt in 1912, but it's not true that he took more from one or from the other. Exit polls show they would have split equally. Here's poll expert Nate Silver.

(BEGIN VIDEO CLIP)

NATE SILVER, AMERICAN STATISTICIAN: The Perot myth, like many political myths, endures because no one bothers to actually check the data. President Bush was extremely unpopular and so when you have a guy whose approval rating is plummeting every month in a downward spiral, then he was lucky to come as close to Clinton as he did.

(END VIDEO CLIP)

SMERCONISH: Ralph Nader gets the same blame in 2000, overlooking that 250,000 Florida Democrats voted for Bush or that Gore lost his home state of Tennessee. And in 2016, Donald Trump didn't win because of Jill Stein or the two former governors who ran against him as the Libertarian ticket. Trump won because he motivated his base to get out and vote better than Clinton did. What, besides stereotyping, makes people assume that a Jill Stein voter would otherwise have cast a ballot for Hillary Clinton or that a Johnson-Weld voter would have done likewise?

Plus, remember this. More eligible American voters sat out the 2016 presidential race than voted for either Trump or Clinton or third party tickets. If you're still bitter about the outcome in 2016, I suggest you focus your energies on those who didn't get off their ass or blame the faults of your favorite candidate who provided them insufficient inspiration to vote.

Schultz said that he wants to run as an Independent Centrist. If he does, he'll be in good company. In 2018, Gallop found significantly more Americans self-identified as Independents, 42 percent, than Democrats, 30 percent, or Republicans, 26 percent. Hey, by that logic, maybe Schultz should be telling the Democratic field that they should stand down, less ruin his shot.

[09:05:05] If we learned one thing from 2016, it is that we know nothing about what the future holds. So let's let this play out.

Obama speechwriter Jon Favreau tweeted this, quote, "None of the explanations coming from Howard Schultz or his advisers answer a very simple question. If he thinks he has a winning message, why can't he run in the Democratic primary? Why does he get to skip that contest? Just because he's a billionaire? Would love to hear an answer."

Well, Jon, put this on your podcast. Accepting Schultz at face value, he's no longer comfortable being a Democrat. He said this on "60 Minutes."

(BEGIN VIDEO CLIP)

HOWARD SCHULTZ, FORMER CEO, STARBUCKS: I look at both parties, We see extremes on both sides. Well, we are sitting today with approximately $21.5 trillion of debt which is a reckless example not only of Republicans, but of Democrats as well, as a reckless failure of their constitutional responsibility.

(END VIDEO CLIP)

SMERCONISH: And according to "The Washington Post," citing a growing national debt, he says he opposes liberal proposals to provide people with free healthcare, college education or guaranteed public jobs. We have to go after entitlements, he said last year, though he has not described what that would mean for programs like Social Security and Medicare, which Democrats have voted to protect.

And when Kamala Harris embraced Medicare for All and told Jake Tapper she'd get rid of insurance companies, Schultz said, that's not American.

Look, the only people who should be upset about Schultz or any other legitimate third-party candidate getting in are those satisfied with the status quo. Well, count me out. The only way to break out of the two-party stranglehold is if we reject the same old choices and apparently 42 percent of Americans, a plurality, agree with me. Most fundamentally, this is America. Everyone should be encouraged to participate and to run. The dynamics of a multi-candidate race are wholly unpredictable. The naysayers on Schultz may be his glad-handers in two years.

Joining me now to discuss, adviser to Howard Schultz, Bill Burton, who was a deputy press secretary to President Barack Obama. I just did all your work for you, Bill.

BILL BURTON, POLITICAL ADVISER TO HOWARD SCHULTZ: I don't know what I'm going to do on the show now, but thank you.

SMERCONISH: OK. But now I need to go harder on you ...

BURTON: OK.

SMERCONISH: Because those are my sentiments. Are they necessarily yours? And you know where I'm going. The "Sacramento Bee" wrote this -- published this essay that you wrote in 2016 where you bought into this.

You said, "If Stein or Libertarian candidate Gary Johnson eat into Clinton's support even a little, that could matter in a close election. In the same way, I would bet that Ralph Nader or at least many of his supporters wishes he didn't help to make George W. Bush our 43rd commander in chief. I suppose Stein supporters would not want to be in the position of explaining to their kids how they helped make Trump president." You know that's the exact argument people are now making against Schultz.

BURTON: You know, there's another essay that I wrote for the "Sacramento Bee" a couple months before that which was that we should be worried about Donald Trump winning the presidency because no one was worried enough at the time that Donald Trump presented a clear and present danger to this country and could be elected and then he was.

Now, in that essay, what I said was that Jill Stein couldn't make a meaningful difference in that race, except to stop Hillary Clinton. The difference between now and 2016 is a lot and what Howard -- what Howard Schultz is saying is he considers this bid for the presidency isn't what Jill Stein was saying which was that the two candidates were too close together.

He's saying that the two parties have moved so far apart, but the American people are close together and they're losing a voice in this conversation. And what he's doing is going around the country, talking to the American people, seeing if there really is an interest in trying to find a better way. We can all agree that politics is broken. What Howard Schultz is doing is asking the question of whether or not a new choice could help to fix it.

SMERCONISH: Jon Favreau and others say, hey, if he really thinks he can win the thing, then why isn't he running as a Democrat? I offered my answer, but I'd rather hear yours.

BURTON: Well, here's the thing about presidential elections in this country, and I've worked on a fair number myself, they're often decided by a handful of battleground states and a handful of battleground precincts inside of those states.

Howard Schultz is asking the question, what if we did this differently? What if every single state mattered? What if every single voter who participated in the 2020 election got to have a voice? It didn't matter what city you lived in, didn't matter if it was Arizona or Kansas or North Dakota or these states that get ignored every single time, everybody got to be involved. Is that a path to healing? Is that a path to a better outcome for the United States?

[09:10:01] And when it comes to the Democratic party, he just feels like the primary system is setting up a fever dream of unelectability that he doesn't want to participate in. He doesn't think that that is what his home is right now.

And so when you're talking about completely ending the health insurance industry or you're talking about eliminating ICE or you're just getting to the -- to the far outreaches of the fringes of American politics, he doesn't think that's a path to a better outcome. He thinks that's a path to more shouting and yelling and that's what we heard a lot of this week, but we didn't hear a lot about progress.

SMERCONISH: Well, has he had some recent epiphany that he wants to let his Independent freak flag fly? I mean, how did this come to pass? Because heretofore, he has been a reliable Democrat, albeit one who didn't always vote.

BURTON: I think that over the course of the last couple of years, he's been watching how things have been playing out in Washington between the shutdowns and the increased temperature and the volume of all the sniping. And he just decided that if he was going to do this, he would consider it as an Independent because he thought if we don't try some new things, if we don't consider what the different outcomes could be, we could very much end up in a situation where Donald Trump gets reelected.

He thinks that Donald Trump is fundamentally unfit for office and he will do anything that he can, which he's doing right now, to stop that from happening.

SMERCONISH: Is he ...

BURTON: And so all he's doing is asking the question of the American people, do you want a new choice?

SMERCONISH: Is he getting weak-kneed? And I ask this because "Fox Business" reported, we'll put this up on the screen, CNN could not confirm, that he's said to be looking more closely at whether he wants to go through with the effort, that he was really freaked out and caught unaware by the vicious nature of the blowback that he sustained this week.

BURTON: He knew that there was going to be blowback. He is excited to continue this conversation and what we've heard at the -- at the home office is there's a lot of people who are really interested in this effort. We've heard from thousands of people, hundreds of people have sent in their resumes. People just to me directly have sent so many messages of support that they want to be involved in some way.

And I have to tell you, this is so different from anything that I've ever done. It's Democrats, Republicans, Independents, people who are in the military, people who are in the journalism all working side-by- side. The diversity of thought and interest is actually a pretty amazing thing.

SMERCONISH: OK. Respectfully, I don't think you answered my question, though. Is he now reconsidering, because of the vicious, I think unfair, you heard what I think, but because of that reaction, is it causing him to say, hey, I may not want to do this?

BURTON: No.

SMERCONISH: OK. And final question. What about you? I mean, given your credentials, the high role that you played for Barack Obama, I have got to believe that your Democratic friends are leaning on you and saying, like, Bill, what the hell are you doing?

BURTON: Look, I've heard from hundreds of people directly this week, people who I worked with recently, people who I worked with a long time ago and there's been a wide range of opinions, including some of the people you talked about on the show earlier.

And I would say the vast majority of people that I have heard from, vast majority have been very encouraging and have said that, you know, I should keep up the fight. Let's answer this question. Let's find out what's possible. And you know what? When you're in the arena, you got to take some arrows, but to be along for this ride at what could be a historic moment in our country is great.

SMERCONISH: Well, I know what the status quo looks like and apparently 40-some percent of us aren't satisfied. Bill, thank you for getting up early. I really appreciate your being here.

BURTON: Thank you. Talk to you soon.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. I'm sure you're going to crash my twitter feed and Facebook page today. That's OK. I will read some during the course of the program. Catherine, what do we have?

"Michael, you're smack in the middle is getting frayed. These are extraordinary times," -- you're (ph) right. They're always extraordinary times. I mean, this is another one of the arguments that I -- that I heard this week. like, Michael, at any other time, your argument makes sense. At any other time, it would be the right time to go through, but not this time.

And then they say because it's the most important election of our lifetime. Ladies and gentlemen, I have been paying attention, an active -- and active participant since 1980 and every election since the Reagan-Carter race in 1980, I have been told is the most important election of our lifetime. And in four years, believe me, they'll be saying that again. Give me one more if we've got time. Can you tell I'm fired up about this subject?

"I love Smerconish until he starts talking about third party politics, then I want to hit him in the head with a frying pan." Hey, Patrick, you must be -- you must be loving what you got, the two choices. You like these two choices? Why are -- why are 42 percent of us -- and I know some lie. Discount the 42 percent.

[09:15:00] But why are 30-plus percent not happy with the status quo? We want different selections and sooner or later, we're going no get them. So to say to this guy, "Shame on you, Howard Schultz. You've accomplished so much and we don't want you in the public debate," that's not right. That's not American, dare I say. Up ahead, a racist photo in the 1984 med school yearbook of Virginia Governor Ralph Northam has many calling for him to resign. I want to know what you think. Will you please go to Smerconish.com and answer today's survey question. Should Virginia Governor Ralph Northam resign in light of appearing in the blackface KKK photo?

(COMMERCIAL BREAK)

SMERCONISH: in the wake of the release of a racist yearbook photo, will Democratic Virginia Governor Ralph Northam be forced to resign? Friday, a conservative website published this photograph of Northam's 1984 med school yearbook page showing someone in blackface and someone in a Klansman's robe. Northam first issued a statement calling the costumes, quote, "clearly racist and offensive," then released an apology video on Twitter. Here's an excerpt.

(BEGIN VIDEO CLIP)

[09:20:00] RALPH NORTHAM, GOVERNOR OF VIRGINIA: That photo and the racist and offensive attitudes it represents does not reflect that person I am today or the way that I have conducted myself as a soldier, a doctor and a public servant. I am deeply sorry.

(END VIDEO CLIP)

SMERCONISH: That hasn't satisfied a wide swath of politicians and community leaders who are calling for him to step down. They include the recently declared black presidential candidates Kamala Harris and Cory Booker. Northam is saying he cannot recall -- this is a killer -- which person he was in the photo. So is his political career still viable?

Joining me now to discuss is Theodore Johnson, a senior fellow with the Brennan Center for Justice who happens to be a resident of the great state of Virginia. Hey, Ted, that last part, I just learned that he says, well, he's not sure which one because -- I mean, he'd be better served if he said at different times I was in a robe and in blackface because to say, "I don't know which one I was," means, to me, it was such an insignificant event in his life -- like holy crap, how does it not stand out in his mind? But you go ahead and react.

THEODORE JOHNSON, SENIOR FELLOW, BRENNAN CENTER FOR JUSTICE: Yes. So that's a bad answer. In fact, the better answer would have been to just keep his mouth shut, really, and not address whether he was the one in blackface or under the hood. It's immaterial. He was in the picture. The picture is racist and now he has to determine whether or not he still has the support of the people of Virginia.

Look, the government derived its power from the consent of the governed. If he does not have that consent anymore, then he needs to determine whether or not he can effectively serve as governor. Look, it was a ...

SMERCONISH: Do you think he should stay?

JOHNSON: So, look, these kinds of things are political calculations. You know, morally, folks should be allowed to apologize and then reconcile and offer remedies and redemption, but this isn't a moral question. This is a political question.

When we talk about things like impeachments, when we talk about apologies, these are political actions and, frankly, if the Virginia House, the Virginia Senate, Virginia Democrats, former governors like Douglas Wilder, when all of these folks are telling you to step aside, when 2020 presidential candidates, powers in the Democratic party, are telling to you step aside, politically, you cannot be effective in that role anymore.

SMERCONISH: It occurs to me that this is not a kegger at Squee's house. I'm caught up in the fact that he's 25 and in med school and I see a -- I don't know how I'd feel if it were -- if it's blackface, I'm inclined to say you're done, but I want to ask you about that in a moment. But I see a difference between high school, and I'm thinking, of course, of the Kavanaugh yearbook, because we just went through this ...

JOHNSON: Right.

SMERCONISH: Albeit, that was not blackface and med school, like 25- years-old, you're a man.

JOHNSON: That's right.

SMERCONISH: You know, you are not a teenager. That brain is more developed significantly. Do you see significance of the fact that he was in med school and 25 at the time?

JOHNSON: It matters. And frankly, if he was an undergrad, it would matter. If he was 30, 35, 40, it doesn't -- look, he was an adult. He was a grown man. Other yearbook photos have come out from his undergrad days at the Virginia Military Institute where one of his nicknames was "Coonman" and then in medical school, he's either in blackface or under a hood. So it makes one wonder whether this was a pattern of behavior or not.

The fact that he was in medical school, 25, look, a study came out, 2015, 2016, that canvassed medical students to determine what they thought of medical differences between black and white people. This is three or four years ago. Medical students believed black peoples' skin is thicker. They believed black peoples' blood coagulates differently. So education, being in medical school, being 25, racism does not care and if that's a part of your character or something that you sort of scoff at, then it shows. And so it's inexcusable and age doesn't make it better or worse.

SMERCONISH: OK. Everything you've just said is very reasonable to me. By the same token, I'm trying to understand what standard we are defining because I don't believe in a professional death sentence for something that you do in your formative years. Let me show you something that was said by the Senate Minority Leader in Virginia. This is Richard Saslaw.

Quote, "His whole life has been about exactly the opposite and that's what you need to examine, not something that occurred 30 years ago. While it's in very poor taste, I would think no one in the General Assembly would like their college conduct examined. I would hate to have to go back and examine my two years in the army. Trust me, I was 18-years-old and I was a handful, OK? His life since then has been anything but. It's been a life of helping people and many times for free."

What of the last 30 years? If the guy has done God's work for the last 30 years and helped people of color, should that matter or is he still done?

[09:25:00] JOHNSON: So it should matter for his personal growth. It should -- it should matter to his friends and family, but when it comes to the question of politics, the only question that matters is does he still have the confidence of his caucus and of the people of Virginia? And if the answer is no, then the personal growth that's happened over the last three decades is, frankly, not the point.

Look, I've served in the military. I'm a retired military guy and I will tell you that when commanders lose the faith of the people that report to them, they are removed from office. Loss of confidence in one's ability to lead is a removable offense. And so -- and it doesn't matter whether the offense that caused that loss of confidence happened yesterday or two decades ago.

This is -- people's lives are at stake here. I mean, governments aren't popularity contests, despite what our current politics may suggest. And so again, if he cannot lead the people of Virginia, he's got to take that into consideration and his personal growth since 1984 -- it could be 1884 the way the picture looks -- since 1984 is beside the point.

SMERCONISH: Theodore Johnson, Ted, thank you. appreciate it.

JOHNSON: Thanks. Thanks for having me.

SMERCONISH: Let's see what you are saying via my Twitter and Facebook pages. Keep the comments rolling. "Smerconish, I'd like to know how this wasn't brought forth by the media vetting him when he was a candidate." Oh, Michael, I have a different reaction. This is campaign malpractice. In the era in which we live, how did his political opponent not send somebody to the med socal and say, "Hey, take a gander at that yearbook?" That's the first thing that I thought of after I decided how reprehensible the picture was. Hit me with another one. You lay it on the media. I laid it on his political opponents.

"When did we become a country with no forgiveness and second chances? I would hate to have something I did at age 25 held against me like that."

Janice, I mean, that's what I'm trying to understand. It's like, Potter Stewart said about pornography, he knows he -- it knows it when it sees it -- he knows it when he sees it. I'm over-caffeinated today. Blackface, indefensible, but what kind of a standard are we setting then for teenage years and early 20s relative to limitations that you can't run for office, you can never be a public servant? I mean, people have life changing experiences and get on a better path.

Well, in any event, I want to know what you think. The website has already crashed once today, but go to Smerconish.com and answer today's survey. Should Virginia Governor Ralph Northam resign in light of appearing in the Blackface KKK photo?

Still to come, tomorrow is Super Bowl 53, Rams versus Patriots, but it's the first one residents of states other than Nevada can legally bet on the game. By next year, sports gambling could be nationwide. Will this bring sports added value or ruin them?

And Roger Stone didn't get charged with conspiracy. Donald Trump, Jr.'s calls weren't to his father. Do these and other recent revelations point to the president avoiding prosecution by the Mueller probe?

(COMMERCIAL BREAK)

[09:32:19]

SMERCONISH: Did Donald Trump just dodge a political bullet with regard to the Mueller probe? There have been some recent significant developments.

First, acting Attorney General Matthew Whitaker said that the Mueller probe is -- quote -- "close to being completed." Then came the indictment of Roger Stone for obstruction, false statements, witness tampering, but not for collusion or more specifically conspiracy. And then his week's CNN reported that Donald Trump Jr.'s phone calls before and after the infamous Trump Tower meeting to a blocked number were not to candidate Trump but to family, friends, and businesses associates.

This upended the speculation that those calls could be a smoking gun proving that Trump, himself, knew the meeting about it as it was happening. And then on Friday the "New York Times" quoted Trump as saying that Rod Rosenstein has assured his lawyers that the president is not the focus or target of the investigation.

You put that all together, it might suggest that Mueller will soon write a report that's highly critical of those in Trump's orbit but will not reach the president himself. Now to date, Mueller has charged six Trump associates and 34 people overall along with three companies. These cases are on two distinct tracks.

There are the Russian defendants who stand accused of one set of crimes and the Americans ones who are accused of separate violations, but we have yet to see evidence linking the two. Will that come? Or is this the way the probe will end?

Randall Eliason teaches white collar criminal law at George Washington University's Law School. He joins me now.

Randall, you wrote in "The Washington Post" recently that there are two possible outcomes. What are they? RANDALL ELIASON, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: Right. So Mueller was originally tasked with looking at what Russian interference with the election and whether this was any involvement by members of the Trump campaign with that interference. So one possibility that everybody has been focusing on, is will he find this grand conspiracy involving Russians and members of the Trump campaign to try to interfere with the 2016 election.

As you pointed out, we haven't seen any charges like that yet. We've seen two sort of separate tracks, the Russians being charged with interference and members of the Trump campaign or people close to Trump being charged with sort of covering up contacts with Russia during the investigation.

And that I think is the second real possibility that Mueller will conclude that the many documented contacts with Russians that have come to light might have been improper, immoral, you know, reckless, any number of things, but not necessarily criminal in and of themselves. But then people close to the president lied about them in order to cover up those contacts, not because they were crimes, necessarily, but because they would have been politically devastating if they were revealed.

[09:35:06]

SMERCONISH: Well, why carve out and charge Stone now if you are headed for bigger things, meaning Mueller, conspiracy, collusion?

ELIASON: That's a really good question. I mean, we should preface all these discussions by saying, you know, we don't know. Bob Mueller knows so much more than any of the rest of us do. We don't know what's coming, what else he has discovered, and so we're all just trying to read tea leaves in all of these discussions.

The most common reason to carve out someone like Stone and charge him separately now would be to try to flip to get him to cooperate and testify in the larger investigation. It's a little harder to believe that Bob Mueller wants someone like Roger Stone with his credibility issues to become kind of a star witness or that he needs him and, in fact, if you would argue -- if you argue that he charged Stone because he needs him to make the conspiracy case, then that almost suggests, you know that the case isn't there. If he's relying on someone like Stone to try to make that case for him.

So I think it's a -- it's a little bit of a mystery why Stone gets carved out right now. You know, another possibility is someone suggested Mueller's probe is wrapping up and he's bringing his final cases. But again, we don't know.

SMERCONISH: OK. The president sat down with the "New York Times" this week, relative to Rod Rosenstein. He said something interesting. Roll it, please.

(BEGIN AUDIO CLIP)

TRUMP: Well, he told -- he told the attorneys that I'm not a subject -- I'm not a target.

UNIDENTIFIED FEMALE: He told your attorneys?

TRUMP: Yes. Oh, yes.

UNIDENTIFIED FEMALE: Did he say that about the SDNY investigation, too?

TRUMP: About which?

UNIDENTIFIED FEMALE: The SDNY investigation. Because there's two. There's Mueller and there's the Cohen investigation.

TRUMP: I don't know. I don't know about that. That I don't know about.

(END VIDEO CLIP)

SMERCONISH: I mean, that's a good distinction. Of course, there is the SDNY and that may have a life on its own. But, professor, put it altogether now and go back to where we began this conversation. As you read the tea leaves, does it seem to you headed for resolution that will not focus on the conduct of the president?

ELIASON: Well, again, there are two things wrapped into there. One is that conduct of the president was a criminal or not. And then second, even if Mueller found that there was criminal conduct can you indict or charge a sitting president. And so we're not sure even with the terms of target or subject, typically refers to whether you expect to be indicted or not.

If the Department of Justice follows its standing policy that says you can't indict a president then you could say well the president could never be a target by definition, because he can't be indicted. So, again, we're just trying to sort of read the tea leaves and see what this could mean. But a real possibility is that those around the president get charged with these kinds of cover-up crimes, like Stone and Michael Flynn and Michael Cohen have already been charged with.

And there is a report of some kind that comes out that, you know, is very critical of the campaign and the Mr. President's behavior but doesn't actually result in criminal charges against the president himself.

SMERCONISH: Right. And that never the two shall meet, meaning those indictments of the Russians for the actual underlying crime the hack, and the so-called process crimes that were committed by those in Trump's orbit really didn't overlap.

You're right. We don't know. I'm just trying to take the pulse of the situation. Randall Eliason, thank you for being here.

ELIASON: Thank you.

SMERCONISH: Let's check in on your tweets and Facebook comments, hit me with one. What do we have? "Smerconish, it really does not matter, impeachment is a political process and as long as the Republicans control the Senate not much is going to happen till the 2020 election."

I don't agree with that. I mean, I understand that there's a head (ph) -- a steam (ph) Nancy Pelosi has kept a lid on this among some Democrats who want him impeached regardless of what the Mueller probe shows. But I think that in the end either there is a smoking gun or there is not. And if there is, even the Republicans in the Senate will have to act knowledge it.

But putting together all those pieces that I just outlined in my conversation with Randall Eliason, it seems to me this thing is headed for a resolution that it might be messy, it might be an ugly report. In fact, how could it not be? But that it doesn't directly address the president or people close to him for collusion or maybe even obstruction.

Remember that Alan Dershowitz argument which says he had a right to fire Comey. Let me say one more thing because I want to get this off my chest and also don't lose sight of the fact that it's Rod Rosenstein who wrote the CYA memo for the president on the firing of Comey. So how can it be obstruction of justice for firing Comey when Rod Rosenstein is the one who gave him the paper trail to do it?

I want to remind you to answer the survey question at my Web site. Please to do it now Smerconish.com.

Should Virginia Governor Ralph Northam resign in light of appearing in the blackface/KKK photo?

Still to come, thanks to a Supreme Court ruling tomorrow's Super Bowl will be the first one that you can legally bet on outside of Nevada. Seven states have already legalized sports gambling, what will happen to pro sports when this goes nationwide?

(COMMERCIAL BREAK)

[09:44:21]

SMERCONISH: Tomorrow's Super Bowl will be historical in American gambling history. For the first time bettors will be legally allowed to wager on the NFL championship not just in Nevada but in seven other states by next year, it could be legal to do so nationwide. And American sports are about to be completely transformed in the process.

The Supreme Court ruled last May the Professional and Amateur Sports Protection Act violated the 10th Amendment protecting states' rights, thus, overturning a law that since 1992 prohibited sports betting in 46 states. And now team owners and states officials are laying the ground work for legalizing sports gambling. Various estimates say that a national gambling industry could draw anywhere from 100 billion to 400 billion in bets every year.

[09:45:07] Joining me now is Darren Rovell who's senior executive producer for The Action Network, a sports betting information site. Darren, what happened here? I feel like I turned around and we went from the sports book at Mirage to, you know, nationwide.

DARREN ROVELL, SENIOR EXECUTIVE PRODUCER, THE ACTION NETWORK: Yes, Michael, it happened really quickly. I think a couple years ago, it wasn't expected that the Supreme Court would even hear that case. And then it wasn't expected that New Jersey, which brought the case, would prevail.

And then all of a sudden in May, that happened the flood gates opened, Delaware, New Jersey, Mississippi, and even places in the bible belt are considering sports gambling.

SMERCONISH: So describe for me the viewing experience of the future. Picture me tomorrow for the Super Bowl but maybe two or three years down the road, what does my screen look like and how is the experience different?

ROVELL: OK. So the trend has been over the past couple of years to make the screen cleaner. Betting is going to change that. It's now going to look like CNBC. So essentially, MGM, William Hill, Caesars, all those guys are going to sponsor the broadcast. And they're going to want to tell you in that moment how people are betting because that's going to inspire you to say, well, I agree or I don't agree.

Next, in 2022, in 2023, when the big rights come up, NBA, NFL, this is the time where Apple, Hulu, Netflix, all the big guys, Amazon will now be involved. Amazon is big in one click. You don't think they will go after one click gambling. Apple is big in micropayments. You don't think micropayments are going to come in.

So they're going to try to do it on one screen where you can watch the game and bet and then maybe you can go to The Action Network, where we show you, where the money is, where your money is, at that exact moment?

SMERCONISH: I sense that data has changed all of this.

Look, I ran in high school a football poll. All you had to do is pick four winners in the NFL every Sunday, now, because of data. You can wager on every single play, right? Isn't that what's changed?

ROVELL: So that is what's going to be next. Because if you look at Europe, which obviously is completely mature in its gambling, 70 percent of bets are in play and so that means from play to play.

That has meant that it's a billion -- $2 billion, $3 billion business for these leagues because they want to sell the gambling sites, the data because then they'll be no latency. Because if there's three or four seconds delay, that's what they say, there could be a problem. So already the NBA has done three data deals. NHL has done a data deal.

Everyone but the NFL at this point which is, of course, the joke as we head into this Sunday that the NFL is the last, because it is definitely the one that has the most money in the game.

SMERCONISH: How worried are you that this will be a corrupting influence on players?

ROVELL: I'm a little worried about the college game. Obviously, I think pro athletes make enough money so that nothing really changes. They're making more and more money. The referee officials are making money that makes me comfortable.

The college athletes aren't making anything and they could be influenced by a few dollars. I will say this, though, with everything being tracked and everything being legal, if there is some nefarious activity, we now know better that that's happening and so if someone cheats and an athlete does something that seems off and he is caught that will serve as a lesson for future college athletes.

SMERCONISH: Same question that I asked about legalization of weed, what becomes of my local pot dealer? In this case, what becomes of the local bookie?

ROVELL: Your local pot dealer is more in trouble than your local bookie. Because your local bookie. You have the same products in the dispensary and you might feel a little better about it.

You have the same products with the local bookie. The difference is that you get credit with the bookie. Once your mobile account Draft Kings or Fan Duel or wherever you are betting hits 0.00, are you not betting again. The local bookie could say, well, you have been good to me for years --

SMERCONISH: Give you credit.

ROVELL: I might give you negative 10,000 -- 20,000, I know you are a good customer.

SMERCONISH: Right. But what's the vig? Final question. Your favorite prop bet for tomorrow?

ROVELL: I'll just go the stupidest prop bet is Tony Romo, how many correct calls he will get, which is 7.5 over or under, I would go the under there. The best profit for your money is Rob Gronkowski for MVP. I believe it's his last game. He hasn't been playing that well. You can get him at 40 to one which is ridiculous for a guy who has had Rob Gronkowski's career.

SMERCONISH: Right. But those odds will probably shift after he Darren Rovell has just said that on CNN.

(CROSSTALK)

[09:50:01]

SMERCONISH: Darren, thank you. I really appreciate it.

ROVELL: You got it.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments and the final results of today's survey question.

You can go to Smerconish.com right now and vote.

Should Virginia Governor Ralph Northam resign in light of appearing in the blackface/KKK photo?

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SMERCONISH: Hey, time to see how you respond to today's survey question at Smerconish.com.

Should Virginia Governor Ralph Northam resign in light of appearing in the blackface/KKK photo?

Survey says, 10,884 votes cast with 63 percent saying yes.

[09:55:02]

You know, I knew that would be the outcome. I wasn't sure the margin. I mean, I knew that's the way that it would swing but nearly 40 percent say no.

Here's a prediction for you. Put that back on the screen real quickly if you can, Katherine (ph).

I predict that that photo will ultimately be revealed to be a date of his, that it is probably the date under the hood. It is just a hunch.

Social media quickly if we can. Time for just one.

"You become more of an idiot every Saturday on your show." Well, that's clear. "Howard Schultz is a spoiler. And if you want to beat Donald Trump, let him run as Republican. Are you crazy? He has no chance."

Grits Girl, you must enjoy a binary choice. Me, I want more choice.

I will see you next week. By the way, if you want to catch the "American Life in Columns" tour, I will be in Pontiac, Michigan next Sunday, Chicago on March 17, Wilkes-Barre, Pennsylvania April 7, hope to see you there.

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