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Fallout From Clinton's 22 Top Secret E-mails; Trump at War with Fox News; Election Expert Predicts Iowa Caucus Results; Can Cosby Testimony Be Used in Other Cases? Aired 9-10a ET

Aired January 30, 2016 - 09:00   ET



[09:01:11] MICHALE SMERCONISH, CNN HOST: I'm michael smerconish.

Finally, some Americans are getting ready to vote. We'll have the very latest as the 2016 race moves from projections to reality.

The e-mail issue that Hillary seems unable to delete. The State Department says 22 e-mails on then Secretary Clinton's home server are too secret to be made public. Might she be prosecuted for a felony?

Those Iowa caucuses on Monday, how many votes are still in play? I'll talk to Dr. Sam Wong, the Princeton election guru who back in 2012 beat all the so-called experts and still more revelations about Bill Cosby's alleged deal with prosecutors in Pennsylvania, will other accusers be able to use the comedian's testimony against him?

First, the latest on those Hillary e-mails. Now in this final weekend before the first actual voting in 2016 comes breaking news that seems not to be good news for Clinton. She's the candidate who most people consider a shoe win for the nomination, if not the presidency. And now finds herself running neck and neck with Bernie Sanders in Iowa and trailing him in New Hampshire.

As the "Washington Post's" front page details, the State Department finally released over 1,000 e-mails but so far the focus has been on the 22 it refuses to release saying the contents are too classified. Her opponents say it's a huge security problem to put those e-mails on a home computer vulnerable to a hacker. Her supporters say she did nothing wrong and this is just political mud slinging and maybe a politically-motivated investigation.

Joining me now, former United States Attorney General Michael Mukasey and former Clinton White House special counsel Lanny Davis. First, judge, of what significance these latest developments?

MICHAEL MUKASEY, FORMER U.S. ATTORNEY GENERAL: Well, in a sense it's more of the same but because these are not disclosed at all, it makes it obviously much more apparent that somebody was apparentely moving the classified markings on State Department communications and getting them on to her home server. That I think is the real significance here.

SMERCONISH: But how can she have culpability if nothing was so designated as classified at the time?

MUKASEY: If it was designated classified and the classification was removed, according to a protocol that she knew about and wanted because that was the only way to get it on her home server, then she is in it up to her eyeballs.

SMERCONISH: What's the basis of your suspicion that perhaps so-called classified markings would have been removed?

MUKASEY: Well, the documents originated someplace. They didn't drop in from Mars. The person who originated them necessarily put classified markings on them because the State department has said that they won't release any of them. So they were at one point marked.

Now how did the markings get off? I think if you turn to an e-mail exchange between her and one of her staffers back in 2011, you find that she's waiting for a classified set of talking points and at one point says if they can't get a secure fact, she says turn it into non- paper with no identifying heading and send non-secure.

Now that is very particular language relating to the fact that there are three communication systems within the government. Non-secure, sipper or secure and the highest, which is jay wicks. The information from sipper and from jay wicks cannot move on the low end system, nipper, and if you put anything on there that's got those markings on it, it essentially sets off an alarm that alerts people involved with security.

So those markings have to be taken off and when she said in June of 2011, take the markings off, it becomes apparent she knew how that system works.

SMERCONISH: Assume for the purpose of my next question that she played no role in the removal of any designations, should she have otherwise known this is really sensitive information? This is at a certain level that, of course, it might not have the marking but must be classified.

MUKASEY: The information is classified not because it's marked but because of what the information contains. The marking is put on because it's classified. It's not classified because of the marking. For example, if she has signals intelligence or information from a human source that is obviously confidential and secret and relates to intelligence activities of the United States abroad, she'd have to have been a low grade moron in order to not know that it's classified.


SMERCONISH: Who ultimately decides where this goes? Is it the FBI, is it come (ph), is it the attorney general, Lynch, is it the president ultimately who is consulted?

MUKASEY: Ultimately, it's the president.

SMERCONISH: How do you see this playing out? MUKASEY: It's hard to predict but the FBI is conducting the

investigation. I believe it is working with people at the Justice Department now. At some point, all of this is going to be tied up in a package and put before the director of the FBI and then sent to the attorney general. If the package appears to contain a crime, then there is going to a recommendation a prosecution be brought.

SMERCONISH: Judge, this is complicated stuff. Sum up. Give me the 30-second sound byte so that people who are paying attention at home understand what is really at issue.

MUKASEY: What's really an issue is there's going to be a decision at some point as to whether a charge should be brought against Hillary Clinton. If the decision from the director of the FBI is that it should and the attorney general says no, there are going to be people resigning and going public the same way we saw in connection with the Saturday night massacre.

If the decision is made to go ahead with the charge. Then we'll see some negotiation between Hillary Clinton and the White House as to how that proceeds.

SMERCONISH: Michael Mukasey, former attorney general of the United States, thank you for being here.

I want to give equal time now to former Clinton White House counsel Lanny Davis. He's headed to Iowa this morning to support his Yale Law School classmate Secretary Clinton. Lanny, respond to the judge.

MUKASEY: I've been a great fan of the judge here at a platform with him and he's a great lawyer, former attorney general but it is shocking and almost unethical if you are actually a judge to pronounce the possibility of guilt without a trial or without an indictment and without a fact. All the caveats of speculative statements by my respect for the judge here is somewhat diminished that he would speculate about somebody committing a crime before investigation is complete, before an indictment and trial.

So let me state three facts that he can't dispute. Fact one, is there were no designations on those e-mails and they didn't originate from her. He speculates that she removed designations and the only example he gave which is a fact were talking points sent to her and she said send it to me as a non-paper because they are talking points I want to use and the fax machine isn't working, a non-paper meaning unofficially they were talking points.

The other one we know about is what is retroactively, another fact, this is retroactive judgments two or three years later that something at the time that wasn't designated classified should be designated. The only one that I've read about was a report in the "New York Times" on Pakistan use of drones that you and I and the public read about and three years later, the inspector general is asserting with the wisdom of whatever hindsight he has that a "New York Times" report should be designated classified. Apart from that, the other 22 we don't know, neither the judge nor I whether it's of the same nature of over classification that we've seen through the years by a "New York Times" report that reports drones and is referenced in the e-mail and three years later the inspector general says that should be classified.

And fact three, "The New York Times" withdrew any assertion that the criminal investigation was about Hillary Clinton. The Justice Department withdrew. For the judge to speculate there is a criminal investigation of Hillary Clinton as opposed to an argument on mishandling between the State Department and the intelligence community, which is what we now know this FBI investigation is about and "The New York Times" specifically published the headline and withdrew the very charge was speculation that the judge made on the air, all speculation, all ifs, all necessarilies, all possiblies.

I'm somewhat surprised, I know the judge's political leanings, that he would speculate on television that someone might have committed a crime.

SMERCONISH: Lanny, I've looked at the e-mail that the judge has shown to me where secretary Clinton says turn it into non-paper with no identifying heading and send non-secure. How do we know that this is the only time that she did that?

DAVIS: Well, we don't know and I wouldn't speculate that somebody has committed a crime on national television which is why I consider the former attorney general's comments as unethical for a lawyer. You can speculate. You're a pundit. You wouldn't speculate that Michael Smerconish may have committed a heinous game because that would be irresponsible, so it's all speculation.

But as far as that particular one, which I'm glad you mentioned again, we now know, even though Hillary Clinton has asked all of these e- mails to be published and they haven't been, that that one involved talking points that couldn't possibly have been considered classified.


Her fax machine was not working. She and her campaign have explained that that one sent by Jake Sullivan was supposed to be sent to her. She couldn't get it. She said put it on a fax but she didn't ever say remove classified designations. The judge is speculating --


DAVIS: And speculation is improper --

SMERCONISH: OK. Let me ask a basic question because I don't want to lose people in the weeds. It's against the law for officials to discuss classified information on unclassified networks. It's pretty straightforward. Isn't that what she did here?

DAVIS: She categorically denied that and the only basis for your asking the question is pure speculation and now we know politically motivated. Do you think it's a coincidence, Michael, that we're talking about this on the Saturday morning before the Iowa caucuses.

You think it's a coincidence that the IG (INAUDIBLE) sent a letter to Senator Grassley who after leaking this material from the IG then appears with Donald Trump in Iowa? Do you think it's a coincidence that one of the top officials of the IG's office --

SMERCONISH: I get it --

DAVIS: -- involved in the prosecution of Hillary Clinton and that he denied --


DAVIS: -- now he has to admit it. It's about raw politics that way Whitewater --


DAVIS: Then you should know better.

SMERCONISH: Well, come on, it's a legitimate inquiry --

DAVIS: A legitimate inquiry for a journalist but you should know that this is about politics --

SMERCONISH: OK. I want to be fair to everybody --

DAVIS: The Saturday morning before the Iowa caucuses.

SMERCONISH: You've been sitting here shaking your head. I'm way over time. They are telling me get out of the segment. What is it you want to say?

MUKASEY: The -- all of this is based on facts that have emerged so far as her saying she wants this stuff published, she knows it's not going to be published because it's all top secret. So like a guy in a bar that gets in an argument and waits until his friends grabbed him good and tight and then says let me at 'em.

SMERCONISH: Sir, rebuttal, Lanny, really quick.

DAVIS: The attorney general hasn't named a single fact to lead to his speculation that someone is in criminal trouble. I, respectfully, I think the man is a great man. I respectfully suggest if you were a judge you would be conducting something unethical to offer an opinion based upon no evidence, no fact that someone might have committed a crime. I really think you should really rethink being willing to do that, your honor.

MUKASEY: The facts are there were literally thousands of classified e-mails on her server that didn't get there --

DAVIS: According to one person.

MUKASEY: They weren't put there.

DAVIS: The State Departtment disagrees with that, attorney general.

MUKASEY: They weren't put there by the tooth fairy --

DAVIS: Admit that the State Department disagrees --


SMERCONISH: Gentlemen, I do have to get out --

MUKASEY: -- investigate a dispute between two agencies.

DAVIS: You're acting like a partisan voice, your honor and I'm quite disappointed.

MUKASEY: I have no interest in having her indicted.

SMERCONISH: I need to adjourn.

DAVIS: Sounds like you do.

MUKASERY: I'd like to see her as the candidate.

DAVIS: Thank you, gentlemen, I wish I didn't have to -- Lanny, thank you, judge, thank you. Thank you for being here.

What do you think? Tweet me @smerconish. I'll read some of the best later in the program.

Still to come, unbelievable that a GOP frontrunner could refuse to participate in a Fox News debate and still win it. Who has the momentum on this the final weekend before Iowa? I'll talk to insiders from both Trump and Cruz camps and Tuesday, big day in the criminal case against Bill Cosby. I have new details on the latest legal wrangling over Cosby's deposition and what it means for the criminal case against him.



SMERCONISH: You'd think a presidential candidate refusing to participate in a debate with all those rivals might hurt but when it comes to Donald Trump, all bets are off. When he bailed on Fox News this week, everybody instead piled on his biggest rival Ted Cruz and Trump even got two previous GOP victors in Iowa, Senator Santorum and Governor Huckabee to show up at his counter programming event.

Here to discuss the implications two perfect insiders, Cruz' national spokesman Rick Tyler and Roger Stone, former Trump adviser as well as to the Nixon and Reagan campaign. Roger has just written a book "The Clinton's War On Women." It is amazing to me that the GOP front runner is at odds with the oracle of the Republican Party, Fox News, what's that calculous?

ROGER STONE, FORMER POLITICAL ADVISOR TO DONALD TRUMP: There is no calculus. I think people need to understand, Donald Trump is situational In this case, this turned out to be a masterstroke. First of all, any stage Trump is on is the main stage. He's the front runner and not by a little. Secondarily, by doing this, by evading the last debate, all the firepower want against Ted Cruz, his closest rival.

Cruz is bleeding over his Canadian birth, over his secret sweet heart loans from Wall Street, Goldman, Citibank, tough to make a case that will clean up Wall Street when you're beholden to Wall Street. Those things are beginning to hurt him. Rubio nailed him for his previous service to George W. Bush.

So this has turned out, I think, to be a major plus for Trump across the board.

SMERCONISH: OK. But is it a play for independence? Is what is really going on here, that Donald Trump is taking on Fox News, he's taking on Megyn Kelly because he knows people can walk in on Monday who are independent, register as Republicans and vote in that Iowa caucus?

STONE: Never mind independence. Democrats can actually vote. I think --

SMERCONISH: Does he have support there?

STONE: There's no question that he does. If you look at the people who are attending his rallies, they select -- they collect the data. They were surprised how many of those people were working-class democrats. 1,000 democrats were called out of Des Moines through a phone bank. 300 of them said they would be willing to switch parties on the night of the caucus to vote for Donald Trump. This demonstrates the potential crossover appeal for the general election that I've been talking about.


SMERCONISH: Does he have any ground game in Iowa? Does he need any ground game in Iowa? I mean everything about this race is unconventional. I can't imagine that there is a ward or precinct apparatus out there for the Donald but maybe there is. Does he need it? Does he have it?

STONE: He's a very good organizer who handled the caucuses for Rick Santorum, Chuck Laudner (ph). They do have a ground game. I don't know how good it is because I haven't been to Iowa but I think it is competitive. As you know, Mike, caucus is a different animal. It's not like a primary where you just go into the booth and you push a button. You got to go to a meeting. You got to listen to some speeches. You vote by a show of hands. It takes a more dedicated voter, and I'm not sure polling is all that accurate when it comes to a caucus.

SMERCONISH: If he wins Monday night in Iowa, I think people are going to look back and they'll say as you've already said, what a master stroke to have skipped the debate. If he loses on Monday, I imagine the post mortem would be that that was a lethal error on his part. I want to show you something --

STONE: Maybe not lethal. Because as you know, Ronald Reagan skipped the final debate, lost Iowa, came roaring back in New Hampshire and then ran the table.

SMERCONISH: But I want to show you perhaps was a miscalculation on Trump's part. Here is what CNN was showing the night of the Fox debate. It was a four-screen. Can we put that up?

So it's not that as if -- if you look at the upper left corner. It's not as if he had unadulterated coverage. He was competing with Bill, with Hillary and with Bernie. They went in. They came out. There was equal treatment afforded to all the candidates. I'll bet your old boss thought he was going to get coast-to-coast coverage.

STONE: Well, first of all, they did have a massive audience, I think both Sinclair and CNN cut to it. It wasn't just a speech. It was almost like a variety show. I do think it's significant that Huckabee and Santorum who have pockets of support in Iowa, those voters may begin to realize their first choice can't win, Donald Trump may be their second choice. I think it was very calculated.

SMERCONISH: Final question. What is your deal? You don't sound to me like a guy who either quit or put up those headlines because this is funny to me. Did Stone quit? Did Stone get fired? We still don't know. Look at those headlines. You say you quit. He says you were fired. You're sitting here today shilling is an unkind word but being an advocate for Donald Trump. Are you in the tent or out of the tent?

STONE: I am a strong supporter of Donald Trump. Donald Trump is his own political strategist. That's what I do. He has the right to do that. It's his name. It's his campaign. He's his own strategist, he's his own message maven. He's his own logistician, he's his own tactician and he's darn good at it. That's why he's leading the race. It would have been duped if I had stayed.

SMERCONISH: Give me the result in Iowa Monday night. What happens?

STONE: I think it will be very close but I think Trump will win.

SMERCONISH: OK. Roger Stone, thanks so much for being here. Good to have you back.

Now to the Ted Cruz campaign. Spokesman Rick Tyler, Rick, respond to what you just heard from Roger Stone. You probably got 20 things that you want to say.

RICK TYLER, TED CRUZ CAMPAIGN SPOKESMAN: Oh my goodness. You know, look, I'll agree with Roger on one thing, it was a side show. It was a variety show and it got about less than a quarter of the audience and say that audience was divided up. Most of the eyes were on the debate and you know, Cruz did take a lot of income but proved he would stand up to it to see Donald Trump, he couldn't take the income and he knew it was going to happen to him. He knew that Fox News would play the videos of him talking about being for partial birth abortion, he's been for amnesty, he's been for TARP, he's been for bailouts. I mean, this guy, he has a contradictory statement for every statement and now currently others.

That's why he didn't want to face the voters of Iowa and I think it was a big misstep for him to skip the debate and he skipped out of town yesterday, understanding maybe back today. We're here, we're here to the duration. We've got Glen Beckham coming today. IN fact, he's going to drop by our headquarters in just a few minutes and then we've got Phil Robertson of Duck Dynasty who is going to join us at a rally in Ames at 11:00. Look, we're pedal to the metal in getting people out, meeting voters and that's how you win Iowa.

SMERCONISH: You saw that "Des Moines Register" headline. I think everybody in the political community has seen the way that they regarded the Thursday night debate with their Friday morning. There is the issue. We're putting it up. Rough night for Cruz. Did they get it wrong? Was it not a rough night for your man Ted Cruz?

TYLER: Well, it's cold here in Iowa and we used that paper to start fires to stay warm. Look that paper is endorsed. They endorsed Marco Rubio because they have an editorial board that's pro amnesty. They like comprehensive immigration reform like Marco Rubio does and so maybe it was a little boost for Marco Rubio.

I don't think it was a rough night for Ted Cruz at all. I think he did very, very well in the debates and yesterday we announced that we've got $19 million cash on hand. We're built for the long haul and Iowans want to know, please tell us you don't have a single state strategy. Tell us how you're going to win the nomination. We got an organization, we're organized well into March 15th. We've got the money to go into March 15th.


So this really is close but it's a race between two candidates now, between here in Iowa, Donald Trump and Ted Cruz and I think our ground game is just absolutely superior. The Trump campaign's ground game is OK because we don't know what it looks like and doesn't seem to be the sort of the ground swell that you got for Obama, let's say, back in 2008 --

SMERCONISH: You know, I hear you. But he hasn't needed a ground game to put fannies in seats at all those rallies. Rick, I want you to hear something. Last Saturday, Bob Dole, 92 year old Bob Dole was a guest of mine. He won Iowa twice. He was the '96 standard bearer. He was the Senate majority leader. Listen to what Bob Dole said about your candidate. Roll that.


BOB DOLE, 1996 REPUBLICAN PRESIDENTIAL CANDIDATE: I don't think Ted is a Republican. He's a conservative extremist. He doesn't get along with anybody in the senate there are 54 Republicans and none are supporting him."


SMERCONISH: Doesn't he have a point in saying none of his colleagues are supporting him?

TYLER: Bob Dole is an honorable man, he's a war hero and he served honorably and we respect Bob Dole but I respectfully disagree. You don't have to make friends in Washigton, the whole point of Washington, the reason they say that Ted Cruz doesn't get along with Washington, it's actually the opposite. If you look at the quotes there is lots of people in Washington that call Ted Cruz names.

You can't find a quote where Ted Cruz calls any of them names. But the reason they are upset with him is because he went to Washington and he didn't assimilate, he didn't drink the Kool-aid and he's not there to get invited to the cocktail parties. He's there to do what he said he'd do and that's what you can count on as Ted Cruz going to Washington as president of the United States. He would lead the country with a vision to right the ship and what happens in a constitutional republic, if you get people on board, they will put pressure on members of congress. That's how we got welfare reform, that's how we got -- that's how Ronald Reagan governed and trust me, the members want to stay in power and if you have a vision and they don't do what the voters want, the voters side with someone who does.

You don't have to get along with Washington, you have to get along with the country.

SMERCONISH: Quick final question, yes or no, has Ted Cruz reached out to Ben Carson to say "Ben, you got to get out of this thing because you're killing me in Iowa"?

TYLER: No, that's not happened. But we hope that Ben Carson, we would love to earn all of Ben Carson supporters. Ben is an honorable man but this really is a two-person race, Donald Trump and Ted Cruz and we hope that Carson voters and Huckabee voters and Santorum voters and all the conservative voters will unite behind Ted Cruz.

SMERCONISH: Rick Tyler, thank you for being here. Roger Stone, thank you for being here as well.

Tweet me @smerconish. I'll read some of the best later in the program.

Up next, election expert Dr. Sam Wong from Princeton University has got a terrific track record at presidential predictions. We'll talk about Iowa.


[09:32:34] SMERCONISH: After all the polls, the predictions, the bluster, people will actually vote Monday at the Iowa caucuses. What did the GOP and Democratic candidates have to do to win?

Here to discuss, CNN's kind of political analysis, chief national correspondent John King. John, no American has ever voted for Donald Trump. They haven't had the opportunity until Monday. What are the clues? How are we going to know whether he can back up the polls that show him in the lead?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Well, before we get results, Michael, we will know if there is a long line and a lot of precincts across Iowa, because Donald Trump's key is registering new voters, Democrats, independents, people who have never played before.

Then, when results come in, there are some places to watch. Here is a blank map, right, because 2016 starts Monday night. So, let's go back in time and look at 2012. Rick Santorum won Iowa, that's the gold color. Mitt Romney was a very close second, that's the red color. Ron Paul came in a surprising third. That's the pinkish orange color here.

When results come in, when are we going to look to see if Donald Trump can actually pull this off? The interesting thing about Trump Michael is he has the broadest coalition. He's getting some evangelicals. He's getting some establishment voters, plus needs those new voters.

So, what are we going to look for? Number, we're going to look up here. See all this space up here? These evangelical tiny towns, is Donald Trump cutting into what this cycle should be Ted Cruz country? If you see Donald Trump's color up in this part of the state on Monday night, that means he's performing.

Another place to look, down here, population centers. And over here, the eastern part of the state, the suburbs outside of Cedar Rapids, outside of Dubuque. That's where Romney ran up numbers, down here in Davenport. This is where Romney's vote comes and Romney's vote came here in the central part of the state.

If you go to these parts of the state now, I was just in Iowa last week, this is where Marco Rubio is organizing and where Jeb Bush is organizing. Same with this part of the state, West Des Moines, the suburbs out there. If Donald Trump is running up numbers and getting his color in the counties that were Romney counties, that's the key.

Can he win some establishment votes? Then he'll get votes here. Can he win evangelicals? Then he'll get votes here. If you see Donald Trump's colors all across the map, then we'll know. We'll watch this fill in.

SMERCONISH: Does he have a conventional ground game? Does he have an apparatus, kin to the old ward system or is this all organic, that he's been out there, he's gotten the attention and now, he's just counting on voters to show up?

KING: The guy running his operation, Chuck Laudner, I met him in Steve Forbes campaign back in 2000. He was also part of the Santorum campaign that did this, that came from 1 percent a couple months out to 25 percent on caucus night.

[09:35:07] So, don't discount the professionals working for Donald Trump. He does have an organization. Plus, the secret here, Michael, the secret sauce, if it works is the

volunteers. It's a different, like everything about Donald Trump, it's unorthodox and Monday night, we're going to find out if it works.

SMERCONISH: John, I'm listening to what you're saying about Republicans and Trump in particular. Am I right in thinking there are parallels with Bernie Sanders?

KING: Just like Donald Trump, younger voters are key to his coalition. Just like Donald Trump, new voters especially critical to Bernie Sanders, independents, people who have never caucused before coming into the process. So, where will we look? Let's go back in time.

Hillary Clinton doesn't like to look at this map, Michael. This was remember, 38 percent for Obama, Edwards and Clinton essentially tied down there. The John Edwards factor is a big deal. We don't expect Martin O'Malley to do what Edwards did. So, we think this is -- we think, we'll see, mostly a two-person race.

Where will we look, look over here, see all this light blue, that's Obama. See the light blue here? Ames, Iowa, Iowa City, Iowa, college campuses, Iowa City and Ames, right? That was key to the Obama coalition. It would be key to the Sanders coalition.

Down here in Des Moines, Polk County, this is by far the largest slice of the state, 14 percent of the population right there. It's -- you want to get votes where the people are. Barack Obama won this last time. This is critical to Hillary Clinton because you have more traditional Democrats there.

If you look at the polling coming into the caucuses, she tends to get the more traditional Democrats, older voters, people who have been Democrats a long time. Bernie Sanders gets younger voters, independents, people coming for the first time. Bernie Sanders we expect, Michael, to do well in Iowa City, to do well in Ames on the college campuses, but watch Dubuque and Davenport and Cedar Rapids area. This will be a test. Hillary Clinton's organization in these places is built to be leaner and meaner this time because she remembers the pain of eight years ago.

SMERCONISH: John King, all your maps are empty until Monday and so it begins.

KING: Let them vote, baby.

SMERCONISH: Thank you.

KING: Thanks, Michael. Take care.

SMERCONISH: Be sure to tune in to John's special one-hour "INSIDE POLITICS". That's tomorrow morning at 8:00 a.m. Eastern, here on CNN.

Now, I thought you should hear from somebody who has a phenomenal track record predicting elections. Dr. Sam Wang is a Princeton University professor. He's the founder of

the Princeton Election Consortium. Back in 2012, he beat all the so- called experts including guru Nate Silver. Dr. Wang correctly called the presidential race in 49 of 50 states and he went 10 for 10 in close Senate elections.

Dr. Wang, thanks for being here.

What are you looking for on Monday in Iowa?

SAM WANG, FOUNDER, PRINCETON ELECTION CONSORTIUM: Well, what I'm looking for in Iowa, Michael, looks like Trump is reflective of his national numbers. Iowa numbers similar to those and looks like he'll finish around 30 percent, which is what he needs given that GOP delegate rules to get a majority of delegates at the national convention.

On the Democratic side, I would say that Iowa voters are more liberal than voters nationwide, and so, it looks like it's a close race between Hillary and Sanders. But there actually, the numbers indicate that Hillary Clinton is still in fact slightly favored to win on the Democratic side.

SMERCONISH: I made reference to Nate Silver. I took note of the fact that on Thursday night he for the first time said Trump is now a 48 percent chance of winning in Iowa. I could put that up on the screen. But do you agree? Is that about where you'd say Trump's chances are of winning Iowa?

WANG: Yes, Silver likes to come up with size probabilities like 48 percent. I think that it would be a mistake to get too priced in the probabilities. Silver has always been a bit bearish on Trump's possibilities going back to summer when he wrote the six stages of Trump doom.

But I would say looking at just polls and not looking at opinions and our prior biases, for the last month or so, Trump has been looking very strong. Anybody in the GOP system whose at 30 percent or higher is on track to probably get the nomination.

So, I would say that Trump is the odds on favorite right now based on the numbers.

SMERCONISH: Dr. Wang, on January 5th you blogged. I want to put on the screen a box. It comes from data you assembled. It may look confusing but I think it's pretty straightforward. It generally says, at this stage of the race, you've got to be number one or number two in the national surveys, Iowa and New Hampshire.

Apply that now to where we are in this race.

WANG: Well, on both sides, I would say the number one person in the national and state surveys is in a pretty strong position and oddly despite the divided field on the Republican side, Donald Trump is at number one in national surveys, number one in New Hampshire and maybe number one in Iowa, hard to say and again, given the divided nature of the field, given the tilted playing field in the GOP rolls, he's as strong a position as George W. Bush was in 2000. That's a very strong position.

SMERCONISH: And I guess you would also say he's in as strong a position, Trump, to win his party's nomination as Hillary is to win her party's nomination.

[09:40:05] That's a good way to express it, isn't it?

WANG: Yes, that is an excellent way to put it. They -- Hillary has a less divided field. She's only got one major opponent. Trump has a bunch of major opponents, currently, Cruz, Rubio Carson in Iowa and benefits from that. And so, that puts him in a strong position.

SMERCONISH: Final question, Bernie Sanders, he needs Iowa, right?

WANG: Yes. Sanders absolutely needs Iowa. He needs to not just win, he might need to win by about maybe ten percentage points because Iowa is more liberal than the rest of the nation, and Hillary Clinton has a lot of endorsements from party officials. And so, this is a must-win state for sanders.

SMERCONISH: And you don't think he's getting that?

WANG: It seems unlikely but hard to tell. There's a lot of inner personal dynamics in the caucus rooms. So, we could get surprised. But, currently, I would be surprised by a Sanders win.

SMERCONISH: OK. Dr. Wong, thank you, as always. We appreciate your expertise.

WANG: Thank you.

SMERCONISH: Just ahead, more of my exclusive coverage of Bill Cosby's legal troubles. I have new information on a major development that could mean big trouble for him.


[09:45:16] SMERCONISH: And now new developments in the criminal and civil cases against Bill Cosby. As I've reported, this Tuesday, there's going to be a very important hearing regarding the criminal prosecution of Cosby in Montgomery County, Pennsylvania. A judge will hear testimony as to whether the only reason the comedian provided self-incriminating testimony in a 2005 civil case was because he was promised by the then district attorney he would be absolved from criminal prosecution.

But now, regardless of what the judge decides Tuesday come new developments that might have major ramifications, seven women suing Cosby for defamation in Massachusetts are now attempting to get access to the entire legal file of Andrea Constand, the woman who successfully sued Cosby in 2005.

See, so far, only certain excerpts parts of the deposition were unsealed. That was after a judge ruled the Cosby's self-appointed status as a public moralist invalidated his right to the continued protection of a confidentially agreement.

Now, the lawyer for the seven women is trying to get access to the entire file and if he's successful, it could open a Pandora's Box of issues that could harm Cosby, not just in Montgomery County, but also in other parts of the nation. The decision now rests in the hands of a federal judge, Anita Brody, sitting in Philadelphia. Last Wednesday, Judge Brody held a conference on this matter with lawyers for Cosby and the attorney for the seven women.

This is Judge Brody questioning the lawyers for the women suing Cosby.


JUDGE ANITA BRODY, FEDERAL JUDGE: What do you expect to find the Troiani case file?

ATTORNEY JOSEPH CAMMARATA: I expect to find highly relevant information about Mr. Cosby and his dealings with several of the plaintiffs in the Massachusetts litigation.


SMERCONISH: Here is why this is big. If the judge gives access to Cosby's accusers, it would mean his 2005 sworn testimony might be used against him outside of Montgomery.

Joining me now is veteran criminal defense attorney from Philadelphia, William Brennan, and civil rights attorney Areva Martin.

Bill, of what value might that deposition transcript and other elements of the file be to attorneys who are now antagonistic to Cosby?

WILLIAM J. BRENNAN, PHILADELPHIA CRIMINAL DEFENSE ATTORNEY: Michael, is the subpoena is allowed to proceed and Judge Brody denies Mr. Cosby's motion, this could be the mother load not just in the Massachusetts case but cases across the country. Mr. Cammarata, the attorney in Massachusetts representing seven women that have filed defamation claims, smell blood in the water when Judge Robreno granted the "Associated Press's" motion to unseal excerpts of the deposition. Cammarata now asked for the entire legal file, absent privilege attorney-client communications.

But it appears from reading the excerpts that had been under the judge resealing order that Mr. Cosby may have testified not only about his contact with Ms. Constand in Chatham Township, Montgomery County, Pennsylvania, but contact with other women in other jurisdictions.

SMERCONISH: Areva, would that be fair -- Areva, would that be fair to Bill Cosby because he signed a confidentiality agreement and so did his accuser to protect against exactly this, no?

AREVA MARTIN, CIVIL RIGHTS ATTORNEY: Yes, I think we have to look at, Michael, what kind of confidentiality agreement was signed. We know the least restrictive only prevent the plaintiff from talking about the amount of a settlement. The more restrictive or most restrictive confidentiality prevent the plaintiff from talking about theories used in the case, from talking about documents or other kinds of evidence and prevents the disclosure of any of that evidence that was used in that case and in some of those agreements requires the plaintiff to actually return to the defendant any documents or discovery that was produced during that case.

So, we have this confidentiality agreement that was assigned by Constand in her civil case now potentially being opened by the public to be used by other women. I think there are some issues of fairness with respect to opening up this entire case, which the parties thought by contract was going to be kept confidential and secret.

SMERCONISH: Bill Brennan --

BRENNAN: Michael, I agree with Areva --

[09:50:00] SMERCONISH: There would be statute of limitations issues that would be faced by any prosecutor who wanted to use this information against Cosby.

BRENNAN: Well, that's true, Michael, but that's, you know, third inning stuff. We're at the top of the first year.

I agree with Areva. It depends on the type of confidentiality agreement entered into. But as an exhibit to the motion to squash filed by Mr. Cosby's lawyer here in the eastern district, part of the confidential settlement agreement from 2006 was filed and it's an all inclusive, all the I's dotted, all the T's crossed type of agreement.

The problem is, because of the unsealing of the excerpts by Judge Robreno at the behest of the "Associated Press", Cammarata now is going to use that as a wedge to try to unseal the entire file.

SMERCONISH: Understood.

BRENNAN: It could devastating, devastating.

SMERCONISH: OK, big day, big day Tuesday in Montgomery County, Pennsylvania.

Areva Martin, Bill Brennan, thank you as always.

MARTIN: Thanks, Mike.

BRENNAN: Thank you.

SMERCONISH: Up next, your best and worst tweets. Check this one out.


[09:55:25] SMERCONISH: I like to say you can follow me to Twitter if you can spell Smerconish. Tons came in during the course of the program. I'm just going to focus on one. It's from Jason Harper. Put that up. There it is.

"Smerconish, great segment, why stop? I'd love to hear both sides." That was a reference I'm sure to Lanny Davis who was Hillary Clinton's

Yale Law School classmate and Michael Mukasey duking it out in the first part of this program about the ongoing questions surrounding Secretary Clinton's e-mails. I don't know that we resolved anything, but two bright individuals who were given terrific opportunity to make their case.

I will see you next week.