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SMERCONISH

Trump Never At Risk Of Mueller Finding Criminal Conduct; What Will Fallout Be Of Special Counsel Findings?; How Will House Respond To Mueller's Findings? Rep. Matt Gaetz (R-FL) & Rep. Mary Gay Scanlon (D-PA) Interviewed about Mueller Report; Media Split Over The Mueller Report; Pro Teams Ban Kate Smith's "God Bless America". Aired 9-10a ET

Aired April 20, 2019 - 09:00   ET

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


(COMMERCIAL BREAK)

MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. Happy Passover. Happy Easter, everybody. After a nearly two-year investigation, it turns out that President Donald Trump was never at any risk of a finding of criminal conduct by Special Counsel Robert Mueller. That is the stunning conclusion I reach after reading the Mueller report and here's how I get there.

On March 22nd, Mueller delivered his report to Attorney General Bill Barr. Then, two days later on March 24th, Barr wrote to congressional leadership. The four-page Barr letter said this, "The Special Counsel considered whether to evaluate the conduct under department standards governing prosecution and declination decisions, but ultimately determined to not make a traditional prosecutorial judgment."

He suggested that Mueller didn't or couldn't reach a conclusion on obstruction because it was such a close call. Barr wrote this, "The Special Counsel's decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime."

And then where Mueller didn't reach a conclusion, Barr did. He wrote, "Applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the president committed an obstruction of justice offense."

On Thursday, before the report was delivered to Congress and the public, AG Barr held a press conference and said this.

(BEGIN VIDEO CLIP)

WILLIAM BARR, ATTORNEY GENERAL: As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation. Instead, the report recounts 10 episodes involving the president and discusses potential legal theories for connecting those activities to the elements of an obstruction offense. (END VIDEO CLIP)

SMERCONISH: Again, the implication in the Barr letter and the Barr press conference was that Mueller couldn't make up his mind as to whether the president obstructed justice so he, Barr, along with Deputy AG Rod Rosenstein were the tiebreakers. That's not what happened. It turns out that Mueller claims it would be unfair to say that the president broke the law as there will be no trial where the president could seek exoneration.

This ignores several things. First, that Mueller was hired to determine whether the president broke the law. Second, Congress needs to know what Mueller thinks. Third, the public needs to know what Mueller thinks. Fourth, the idea that a president can't be tried is disputed. And fifth, this president has the ability to defend himself with or without a trial.

I'm about to go into the weeds. Hang with me. In the report, Mueller wrote this, "We determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel, OLC, has issued an opinion finding that the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions in violation of the constitutional separation of powers.

And apart from OLC's constitutional view. we recognized that a federal criminal accusation against a sitting president would place burdens on the president's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct."

Keyline most, important line in the entire Mueller report, "We determined not to apply an approach that could potentially result in a judgement that the president committed crimes. Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name.

In contrast, a prosecutor's judgment that crimes were committed, but no charges will be brought affords no such adversarial opportunity for or public name-clearing before an impartial adjudicator. The concerns about the fairness of such a determination would be heightened in the case of a sitting president where a federal prosecutor's accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice."

[09:05:02] Mueller goes on to say that while the report does not conclude that the president committed a crime, it also does not exonerate him.

The point is this, Mueller was never going to make a finding of criminal conduct by the president regardless of what he uncovered. Mueller would say that the president is not guilty if Mueller thought he's not guilty. After all, that's what he said with regard to collusion, but with regard to obstruction, Mueller did not say the president is not guilty. In fact, it seems entirely likely that Mueller believes the president is guilty.

Stunning as it sounds, there was never any chance that Mueller would find the president broke the law for either collusion or obstruction and so despite 675 days of investigation, 19 lawyers, 40 FBI agents, 2,800 subpoenas, 500 search warrants, the president was never at any legal risk.

I want to know what you think. Go to Smerconish.com. Answer today's survey question. When all is said and done, was the Mueller investigation worth it?

Joining me now to discuss as Tara Setmayer, former Republican Congressional Communications Director, and Renato Mariotti, a former federal prosecutor. He's a columnist for "Politico" where he wrote this piece, "The Obstruction Case Against Trump that Barr Tried to Hide." Renato, take shots at my commentary and tell me how surprised were you to read the report and see what Mueller's rationale was on the issues that I just laid out?

RENATO MARIOTTI, FORMER FEDERAL PROSECUTOR: You know, I will tell you I don't really have shots to take. I think we see things fairly similarly. I mean, to me, the big surprise really from all of this was that Barr had misrepresented what Mueller's reasoning was regarding obstruction of justice and misrepresented a number of other things as well.

I mean, frankly, I don't know who the Mueller report was worse for, Trump or Barr. Certainly when I looked at the obstruction section, what I planned to be looking for -- I had written a preview column. What am I looking for? I was going to be -- I was looking for the difficult questions of law in fact that Mr. Barr told us that Mueller was wrestling with as to obstruction of justice.

And what I found instead was Robert Mueller going episode by episode of potential obstruction of justice and laying out how each of the elements -- in other words the pieces that a prosecutor must prove in order to make a case -- he walked through each of those and as to eight of the episodes by my count, Mr. Mueller said that there was substantial evidence to prove each one of the elements. That's essentially what a prosecutor would need to prove a crime.

It really was nothing like what Barr had said and, in fact, what Mueller said was that, as you pointed out, Michael, that the reason that he did not reach a conclusion that Trump had committed a crime was because it wouldn't be fair to Trump given that there was DOJ guidance that prevented him from charging Mr. Trump. So this way, Trump couldn't go to a court of law and rebut it and have due process.

SMERCONISH: Tara, this is confusing stuff and maybe I'm wasting my breath by trying to go into the weeds and put up on the screen all those lengthy excerpts from the report, but you can tell I am of the opinion that the public is being misled right now insofar as people think, well, it was a coin toss on obstruction of justice when, in fact, Robert Mueller was never going to say the president obstructed justice.

TARA SETMAYER, FORMER GOP CONGRESSIONAL COMMUNICATIONS DIRECTOR: Right. And you're not incorrect when you say that the public is being misled. It's interesting that throughout the entire process, and the Mueller report lays this out pretty clearly, the president was terrified about any information coming out through the investigation about his actions, what was going on. He asked several people to lie on his behalf and when they wouldn't or ignored those directives, he would ask them again.

I mean, he repeatedly did this, particularly with Don McGahn, concerning various aspects of the obstruction side of this case and the president continues now to yell fake news to try to cast aspersions on people that the Mueller report said, particularly Don McGahn, all you have to do is go to page 88 and volume 2 where the Special Counsel says that Don McGahn was credible and had absolutely no reason to lie about any of his depictions of what took place.

The president is very upset about this because it lays out a very damning roadmap to potential obstruction. So he's continuing this propaganda attempt to try to confuse people because the average American, all they hear is no collusion, no obstruction, I'm not guilty. But this report really spells out a lot more in detail what this president was doing that should be alarming to the entire American public, but particularly Republicans.

[09:10:08] Is this the kind of president that you want? Where's the rule of law? What happened to that? I mean, Republicans -- I remember. I'm old enough to remember when Republicans impeached Bill Clinton for lying about a sexual affair. This is way worse in a number of ways, not on the obstruction side, but where is the concern about the Russian interference side? The counterintelligence side of this, too, is being lost a little bit, but that's important also since this administration really hasn't done anything to try to stop the Russians from doing exactly what they did again.

The president's too worried about his reputation. So yelling fake news and trying to cast aspersions on people like Don McGahn and others who are credible witnesses who took notes who have contemporaneous accounts of what took place I think just does the president a disservice. It continues to make him look like a certain consciousness of guilt going on here that does not line up with the facts of the report.

SMERCONISH: Renato, how about my observation that Mueller was willing to say there's no collusion. If he believed there was no obstruction, he'd have been comfortable saying that. Can we then imply he does believe there was obstruction of justice in this case?

MARIOTTI: Well, first of all, there's no question that Mueller said explicitly in the report that if he found that there was no obstruction, he would have said so. Now, there is -- it's not an either/or. In other words, what Mueller could have found is that, for example, that he couldn't clear the president on obstruction, but that there wasn't sufficient evidence to prove beyond a reasonable doubt that he committed obstruction. But I think it's very clear from reading it that he did find that evidence. I mean, what he ...

SETMAYER: Yes.

MARIOTTI: ... what he essentially said, you know, he went through a lot of effort walking through and debunking Barr's kind of unconventional bizarre view that a president cannot obstruct justice except in very limited ways. Mueller walks through, debunks that, makes it clear that he believes that it's important for Congress to be able to consider those questions, kind of gives them a roadmap for how to do so and he walks through the elements of each of the offenses and explains how the evidence is there.

So to me, as a prosecutor, I'm looking at this and I'm like he basically said everything other than the ultimate conclusion and I think the reason he did that is fairly clear from the report. He makes -- he says that there's fairness concerns that would have arisen if he -- if he made that conclusion. So I think he did make that decision.

SMERCONISH: Renato, Tara, thank you so much and everybody at home, it's a holiday weekend. If you have the time, I know it's 400 pages, but I think I can distill it into that one line, "We determined not to apply an approach that could potentially result in a judgment that the president committed crimes." The president was never at any risk of a finding by Robert Mueller that he'd broken the law.

What are your thoughts? Tweet me @Smerconish, go to my Facebook page. I will read some during the course of this program. What do we got, Catherine? "You're twisting this in some kind of weird lawyerly way? The Mueller report may not have been a document to indict a president, but it's a document that roadmaps Congress to do its constitutional duty. Trump must be impeached. He's a poster boy," -- I'm not trying to twist it at all, Trevor.

Respectfully, I've taken the time to wade through it and I was blown way by what I just shared with you because there's a perception out here that Mueller couldn't make up his mind on obstruction and that's not the case. There was never a scenario where he was going to say that he believes the president broke the law and the expectation for 22 months is that he would make that kind of a call.

Remember, I want to hear from you. If you go to my website, please, this hour, Smerconish.com and answer this question, was it worth it? When all was said and done, was the Mueller investigation worth it? Mine's a yes vote. I think it'll provide disinfectant.

Monday, the DOJ will share a less redacted Mueller report with Hill leadership and Judiciary Committee leaders. I'll ask both a Democrat and a Republican from the committee what they expect. Is impeachment part of the equation and would that be politically wise?

Plus, what has the media response been to the release of the Mueller report? Like so much else, it depends which media outlets you consume.

And for decades, Kate Smith's version of God Bless America has been played at sports arenas and stadiums. Now, it's been pulled because other songs in the late singer's catalog have been labeled racist. Is that fair?

(BEGIN VIDEO CLIP)

KATE SMITH, SINGER: Someone had to pick the cotton, someone had to plant the corn. Someone had to slave and be able to sing, that's why darkies were born.

[09:15:08] (END VIDEO CLIP)

(COMMERCIAL BREAK)

SMERCONISH: With the Mueller report out and Hill leaders seeing a less redacted version on Monday, the decision about what to do about the findings is now up to the House of Representatives. Joining me now, two members of the House Judiciary Committee, Representative Mary Gay Scanlon, who's the vice chair of that committee, and Representative Matt Gaetz. Congressman, I'll begin with you. I want to air for you a radio caller to me on my Sirius XM program this week with a very interesting take. Roll that tape.

(BEGIN VIDEO CLIP)

CASEY, SIRIUS XM CALLER: I think we're missing the point here. Ultimately, if you look back, Russia's goal was not to tip the scales of who won the election, but to undermine the credibility of who won regardless. It's what they've done in the Ukraine and it's what they do everywhere. It's to sow the seeds of discord.

So the Mueller report, the MSN versus Fox News, all these sides taking camp and going down to confirmation bias. They'll see what they want to see. The Russians have gotten what they want out of it and ultimately it was worth it for them. They've got -- we're in turmoil. We can't agree on anything. We've got two -- it's like a mini Civil War ...

[09:20:00] SMERCONISH: It's true.

CASEY: ... and they've planted the bomb.

(END VIDEO CLIP)

SMERCONISH: Congressman Gaetz, isn't he right? That was Casey from Orange County, California. Isn't he right in saying the Russians got an enormous bang for the buck, we're still fighting among ourselves?

REP. MATT GAETZ (R-FL): Certainly right about that and I would extend it to say that the Russians win when we allow our intelligence community to be politicized, when we allow political opposition research to function as a basis for, a warrant, to spy on American citizens. that not only calls into question our democracy and our political process, but also the critical intelligence tools we need to combat Russia's malign influence campaign around the world.

I would take one exception with the caller's note and that would be that I do believe that Russia wanted Hillary Clinton to lose and I think that that strings back to her calls for the Russian people to revolt against Putin.

SMERCONISH: Well, that's the way that it turned out. In other words, initially, they just wanted to foment discord -- I'm relying on the report -- but ultimately, they they did want to benefit Donald Trump. Wait a minute, though. I want to back up because I keep hearing this, particularly on "Fox News" in primetime. You are again raising the whole issue of the origin of this investigation. Was this investigation not worth it where 37 individuals and entities were indicted by Mueller for having meddled in our election? Do you want that there had been no investigation?

GAETZ: Yes. I'm a no vote on this Smerconish poll. The reason is that none of those 37 people will ever face justice and god forbid if they showed up and tried to use our criminal process to try to uncover sources and methods that our intelligence community uses. So those were ghost indictments. They're never going to result in any consequence and they confirm what we've already known and that is in the past and sadly in the future, Russia has and will engage in a campaign to undermine democracies both in the United States and around the world.

SMERCONISH: But don't you as a member of Congress need the information that Mueller just provided you so as to make sure this never happens again?

GAETZ: Well, we actually have that information, Michael. We get a lot of briefings around the world and in the Congress and a lot of those briefings go into great detail not only about the goals and strategies that Russia uses, but the specific tactics, whether it's bribing religious officials, co-opting news agencies, trying to compromise people in government and record them.

These are tactics that are not unique to Russia's relationship to the United States. They do it particularly in Eastern Europe and the Balkans and those areas that they deem their sphere of influence.

SMERCONSIH: Respectfully, you're telling me you didn't learn anything, that you knew all this, all that was contained in those 400 pages about the vast way in which Putin sought to undermine our election and our society? I'm shocked by that.

GAETZ: Yes. No, we get a lot of briefs and they occur at multiple levels of government, whether it's our local supervisors of elections, secretaries of state and elections officials around the country, but we get a lot of briefs about what Russia not only has done, but what they will do and I'm very concerned about the integrity of the vote and the ballot and that's why we've got to secure our cyber defenses.

But yes, the Mueller report doesn't create some new set of revelations among those on, you know, the Intelligence Committee, Armed Services Committee, Judiciary Committee about how Russia engages. Matter of fact, the Judiciary Committee took a trip to the Balkans and we learned a lot of these things on the ground there. SMERCONISH: Senator Mitt Romney had some interesting things to say. Put that up on the screen if we can. He begins by saying, "It's good news that there was insufficient evidence to charge the President of the United States with having conspired with a foreign adversary or having obstructed justice. The alternative would have taken us through a wrenching process with the potential for constitutional crisis. The business of government can move on.

Even so, I'm sickened at the extent and pervasiveness of dishonesty and misdirection by individuals in the highest office of the land, including the president." Does he have it wrong?

GAETZ: Well, Mitt Romney's not a big fan of the president unless he wants to be the Secretary of State. So I think that that's in keeping with Mitt Romney's views on the president and particularly the way he behaves with his staff and the way he communicates. I do take exception to your commentary at the beginning that the president was never in jeopardy because you failed to identify the three factors that Mueller identified.

First, that it's hard to figure out where Article II ends and where improper activity would begin, second, that there's no underlying action of collusion and then, third, that a lot of the president's action occurred in public and typically you don't obstruct justice on Twitter. You know, it's typically a clandestine activity that demonstrates a corrupt intent.

None of those three would be a complete defense, but when you combine all of them, there are difficult questions of law, in fact, and I think that's the reason that there wasn't a determination that the president should be charged.

Your analysis that Mueller has to decide if he's guilty or not was never the call of the prosecutor, was never the call of the Special Counsel. He was supposed to determine whether or not there was a basis for a charge. There wasn't.

[09:25:01] He was never assigned to be judge, jury and executioner and make a final determination on the merits.

SMERCONISH: No, I beg to disagree. The way in which he approached this job, in his mind, was not determine whether the President had committed a crime, not to determine whether there was sufficient information to bring forth a charge and he told us so in black and white.

GAETZ: No ...

SMERCONISH: With regard to your three points, by Mueller's analysis, I'll give you the final word, but by Mueller's analysis, if he could check each of the three of those boxes, he was not going to tell us so because he would think that would be fundamentally unfair to a president who would be then publicly charged in the court of public opinion without the ability to defend himself in a court of law. You get the final word. GAETZ: Well, respectfully, what I think you miss is the distinction between a determination that a crime has been committed and a determination that charges can be brought. I think that Mueller made the decision that criminal charges could not be brought as a consequence of those difficult questions of law in fact, but prosecutors aren't hired to exonerate people. That's not what they do. It was aberrational that he exonerated Trump on the collusion question. We never expected that. That's just a cherry on top for the president.

SMERCONISH: To be continued. Thank you, Congressman. I appreciate you being here.

GAETZ: And thank you.

SMERCONISH: The vice chair of the Judiciary Committee is Mary Gay Scanlon. Congresswoman, the president tweeted in "Game of Thrones" style, "Game over." Put it up on the screen. Is it game over? Are we done here?

MARY GAY SCANLON, VICE CHAIR, JUDICIARY COMMITTEE: No, I think you have to carry out the "Game of Thrones" analogy because subpoenas are coming.

SMERCONISH: So what will they reveal? In other words, if you get a look at the full report, what is it that you hope to find that's not already in the public view?

GAY SCANLON: Well, like you, I was really, really focused on that page two of the second volume of the report where Mueller talks about what he was doing with respect to obstruction of justice. I completely agree with you that he went into this saying I am not going to reach a conclusion because the Department of Justice rules say that I can't, but what's really important is what he says after that. He says if I was able to conclude that the president did not obstruct justice, if I could exonerate him, I would and he explicitly says there is evidence there. I cannot exonerate him.

So then he goes on and he says just because we cannot bring criminal charges against a sitting president doesn't mean that there can't be criminal charges against a president after he leaves office and it doesn't mean that Congress doesn't have a duty to investigate and address conduct that constitutes obstruction of justice. And he then proceeds to lay out a very detailed roadmap of where he saw evidence of obstruction of justice. He walks it right up to the line without making a conclusion, but basically that volume two reads like a prosecutorial charging document.

SMERCONISH: OK. Notwithstanding the observations you've just made, how do you feel about the impeachment issue? Doesn't it come with some political costs if Democrats are perceived as banging this drum where there were no findings by Mueller, for whatever reason, of criminal conduct?

GAY SCANLON: Well, first of all, I disagree that there were no findings. He decided not to charge, but he lists 10 different instances where he found evidence of criminal conduct, of obstruction of justice and he lays them out in great detail. So just because he didn't say charge on it, he did have findings. In the very first couple pages of the document, he lays out what he means when he says the evidence did or did not establish and he doesn't find -- he does not exonerate, he doesn't find that there wasn't evidence.

So I think we've still got work to do. He's laid out what he did find, he further lays out 14 additional prosecutions of criminal activity that he referred out because they were in addition to what he had the authority to cover. The redacted report only says what two of them are. There are 12 unknown instances of criminal activity that he discovered in the course of doing his investigation.

SMERCONISH: Congresswoman Mary Gay Scanlon, thank you so much for being here.

GAY SCANLON: Thank you.

SMERCONISH: I want to remind everybody to answer the survey question at Smerconish.com. Congressman Gaetz already told us he's a no vote. Was the Mueller investigation worth it? Cast your ballot. Results at the end of the hour.

Up ahead, a look at the media reaction that the Mueller report received, which may as well have landed on two different planets.

(COMMERCIAL BREAK)

[09:34:09]

SMERCONISH: Did the Mueller report change any minds to get a sense of how divided the media reaction has been?

Look at the front pages of two New York newspapers. The "Times" devoted its entire front page to in-depth analysis including whether the Democrats should move to impeach. The "New York Post" had a much simpler take, "Trump clean, No crimes committed. Democratic hoax destroyed."

The same schism played out across the cable news spectrum.

(BEGIN VIDEO CLIP)

SEAN HANNITY, FOX NEWS HOST: The witch hunt is officially over. The Mueller report is out and the president of the United States has been totally and completely vindicated.

JOE SCARBOROUGH, MSNBC HOST: He is unfit to be president of the United States and anybody who suggests otherwise has not read the report.

TUCKER CARLSON, FOX NEWS HOST: None of it was real. Nobody colluded with Vladimir Putin. Nobody changed vote totals or met secretly in Prague or at a pee tape whatever that is.

[09:35:01] RACHEL MADDOW, MSNBC HOST: The evidence they obtained would support potential obstruction charges against the president himself if only he weren't the president.

RUSH LIMBAUGH, RADIO TALK SHOW HOST: This report could have been issued in one page. We found no evidence of collusion between the Russians and the Trump campaign, period.

LAWRENCE O'DONNELL, MSNBC HOST: That's the public Trump. The witch hunt Trump. The private Trump, the real Trump, this is the end of my presidency.

I'm effed (ph).

(END VIDEO CLIP)

SMERCONISH: Joining me now is Frank Sesno. He's the director of George Washington University School of Media and Public Affairs. He's the author of "Ask More, The Power of Questions To Open Doors, Uncover Solutions, And Spark Change."

Frank, if you're not using the clicker and getting your information from a variety of sources you are getting a totally distorted view of the world.

FRANK SESNO, DIRECTOR, GEORGE WASHINGTON UNIVERSITY SCHOOL OF MEDIA AND PUBLIC AFFAIRS: Totally. Yes. I mean, you just took us into the episode of "Star Trek" that hasn't been shot yet which is alternative media universes.

What's interesting to me after -- in the aftermath of the Mueller report is this is particular inexcusable because what all media should be doing or anybody pretending to be sort of journalistic media is putting the politics to the side for a minute and actually looking what Mueller reports out. What are the quotes, who has attributed to what and all the rest.

There has been all the speculation on the left, on the right, for two years now about what Mueller was going to find, bits and pieces. And suddenly, we have it with names, with dates, with quotes. If anything, Mueller should get the Pulitzer Prize for best investigative reporting because he actually did journalism here. And that's what the public should be exposed to before or with -- I don't care as long as it's clear -- all the opinionating around it.

SMERCONISH: You know what concerns me among other things is that all of the opinionators have so polluted the landscape that the public has a jaundice view of everyone that they see on television. I'll give you an example.

I did an opening commentary today that I think was an evidentiary analysis of one particular line of the Mueller report. I'm being told that I'm flooded with social media reaction. Half of it, you hate Trump. Half of it you love Trump, you love Barr, you hate Barr.

No, ladies and gentlemen, you're all wrong. I'm simply trying to look at data. SESNO: Let's think of it as this way. You're sick, OK. You're not feeling well. You go to your doctor. You've been online, you have gotten opinions from your friends about what's wrong with you.

You finally go to your doctor. The tests are finally done. You get the tests back. You set all of that other stuff to the side and say what did they really say here? That's what Mueller is.

Mueller is the doctor. Mueller is back with the test. And whether this is about collusion or indictable crimes or whether the president will or should be impeached, it is a picture of presidency. All right? It's Bob Woodward's book with quotes, right?

And any American, every American should look at that and say, is this behavior, whatever threshold it reaches that I'm comfortable with, or that says, conveys a picture of a presidency. And that's what disturbs me the most is so much of the media, and so much of certainly conservative right wing media is just change the subject. Move on.

And we've been through too much to just so quickly change the subject and move on, regardless of where you come from on the political spectrum.

SMERCONISH: One other observation. Maggie Haberman said this in a tweet. Philip Bump frankly wrote a great piece in "Wash (ph) Po (ph)" recently making the same observation.

We saw so much of this story unfold that when it finally landed, we knew a lot of the story. Put up that Haberman if you guys would. And the point is, what if it had -- no, not that one either -- what if it had come out -- there it is -- in one thud, and we hadn't known anything?

SESNO: That's exactly right. That's what we would be talking about. And that's why if we could rewind videotape that no longer exists and go back two years and change this. And I will say this, I think that the cable news universe, the talk radio news universe, I'm getting close to your universe, Michael, so I apologize, but it's the reality, you've fed off of this for so long, it's diluted, it's diminished to some extent the extent of what we're really seeing and hearing.

I covered two White Houses, two presidencies very close. Other presidencies from just a step away. This is not the kind of behavior that any other president from any party could have done without enormous consequence, but we've heard so much for so long, it's like, OK, what else is new?

SMERCONISH: Well, let me say this in response, you have to give credit to CNN and to "The Washington Post" and "The New York Times" because all of those reports that the president was lambasting ended up being accurate.

(CROSSTALK)

SMERCONISH: And now they contain -- footnoted.

SESNO: Yes, yes, yes, yes. It's not that I'm you shouldn't have reported on this. It's the amount of reporting.

SMERCONISH: Right.

SESNO: Proportionality, OK?

SMERCONISH: Understood.

SESNO: And so that's what provides normal viewers and your opponents to say you're obsessed with it.

[09:40:02]

You're just carried away. It's an addiction. And you're just trying to feed your addiction.

There's a real news story here, OK? There is a real question about how a president and those around him operate. And Mueller takes us deep, deep inside with names, dates, quotes, places, times, under oath. So people have --

SMERCONISH: No doubt.

SESNO: -- an unprecedented view of a presidency. I mean, think about it, when else have we seen a presidency peeled back like this with such names? Maybe never.

SMERCONISH: I have ordered my bound version. I intend to read it at the beach this summer again.

SESNO: At the beach?

SMERCONISH: Thank you, Frank Sesno.

SESNO: Get a life, Michael.

(LAUGHTER)

SMERCONISH: I want to remind you to answer the survey question at Smerconish.com.

Was it worth it? When all was said and done, was it worth it? Congressman Gaetz says no. I say yes. Go vote.

Still to come, why is the statue of singer Kate Smith now under wraps in my hometown? Because songs in her catalog have racially charged lyrics. That's why.

Is this sufficient reason for sports fans to never again hear her classic rendition of this.

(BEGIN VIDEO CLIP)

KATE SMITH, SINGER (singing): God bless America land we love.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:45:23]

SMERCONISH: And now, the controversy over "God Bless America."

I grew up idolizing the NHL's Philadelphia Flyers. Had the team poster hung in my bedroom. Proudly wore Bernie Parent's number 1 jersey. When they won the Stanley Cup in the '73-'74 season it ended a long drought for Philadelphia sports fans. The city went berserk, 2 million celebrated at a parade. But the Flyers had help, an unusual lucky charm, a singer then much older than any of the players Kate Smith.

The Philadelphia Inquirer recounts that since 1969, the team has played Smith's "God Bless America" before must win games where it has proven to be a good luck charm. According to the Flyers the team went 101-31-5 in games, where Smith's version of the song aired. It went 3-1-0 where Smith sang the song live at the Spectrum, beginning with the Flyers' 1973 home opener against the Toronto Maple Leafs.

I remember when in 1974, she sang in person before the Flyers won the Stanley Cup.

(BEGIN VIDEO CLIP)

SMITH (singing): God bless America the land that we love. Stand beside her and guide her --

(END VIDEO CLIP)

SMERCONISH: For last 18 years the New York Yankees have similarly played Smith's 1939 version of "God Bless America" during the 7th inning stretch. But this week, after being alerted by a fan that Smith having sung racist lyrics in the past the Yankees announced that would end. And the Flyers just said they too would remove her from their playlist.

The issue at hand, 1931 recording a song called "That's Why Darkies Were Born." The song includes the lyrics -- quote -- "Someone had to pick the cotton."

And in the 1933 film "Hello Everybody" Smith sings "Pickaninny Heaven" which encourage -- quote -- unquote -- "Colored children" living in an orphanage to fantasize about great big watermelons.

And so in Philadelphia 80 years after Smith recorded "God Bless America" her statue outside the city sports stadiums was just covered up as the Flyers decide what to do next.

Joining me now to discuss "New York Times" opinion columnist Charles Blow. Charles, weigh in on this controversy, please.

CHARLES BLOW, OPINION COLUMNIST, "NEW YORK TIMES": Well, I think it is perfectly reasonable for people to reconsider whether or not they want her version -- it's not really about her version of "God Bless America." Let's just put that to the side. It's really about her to be part of -- incorporated into a modern presentation of any sort, including sports games.

And so, the idea that something happened a long time ago, actually does not absolve you if you're including that person in a present phenomenon. And so, I think that is perfectly reasonable to think about it. And, you know, I don't think -- I don't think that's a controversial thing for the teams to do.

SMERCONISH: What I hear you saying is no statute of limitations. In a case like this, we uncover it whenever you're done?

BLOW: Absolutely. Because what I -- sometimes people say, oh, this was of a time. I just always recall, think about it this way, the inverse of that, which is there are also black people who were living at the time. And I try to think what they were thinking when people were doing things that were rationally insensitive to them at the time. Right?

They weren't different people than me. They were the same person as I am today. And they had to live through things that were indicative to them. So, I think of them not the person who did it and the morays of the time allowed them to do it, but rather that there were people who suffered because of it.

SMERCONISH: I'm floored that -- I know that we live in the internet age and we didn't in the early '80s Ronald Reagan gave Kate Smith the Presidential Medal of Freedom in 1982. I'm floored that it has taken until now even recognizing how we all have access to information that now this comes to life. You know, where was this awareness for all those years that in Philadelphia, we idolized her version of the song?

BLOW: But, this is not the first time, it took decades, generations for something to be corrected like this.

[09:50:04]

You may recall the controversy over "Carry Me Back To Old Virginny" which was the state song of Virginia up until the early 2000s, right? That song was incredibly racially offensive to a lot of people but it was written in the 1800s by a black man, right? It was recorded -- and then Virginia made it their state song, I think it was in 1940.

Ray Charles recorded it on an album in the '80s and it wasn't until the 2000s that people -- no, it was 1990s that people in Virginia were like enough of this. This doesn't make sense. This is a modern age.

This song is inappropriate and we should do something about it. Sometimes it takes a time for people to have an awakening about something but they do it and I think it is perfectly fine do that.

SMERCONISH: And in this case, Paul Robeson recorded one of these songs that is seemingly indefensible.

BLOW: Exactly.

SMERCONISH: Charles, thank you for being here. We appreciate your time. BLOW: Sure.

SMERCONISH: Still to come, your best and worst Facebook comments. We'll give you the final results. Go vote at Smerconish.com on the survey question.

When all is said and done, was the Mueller investigation worth it?

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[09:55:23]

SMERCONISH: A lot of social media reaction. This came from Facebook, 10 plus sealed indictments to come. It's not over until Kate Smith sings.

Chris, I'm not sure she'll be the one singing when it's over.

Here are the survey results from Smerconish.com, was the Mueller investigation worth it? Oh, my God, 18,362 votes, the yes 86 percent, the 14 percent include Congressman Matt Gaetz. Happy Easter. See you next week.

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