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Smerconish

U.S. Reeling Over Shootings, Police Massacre; Impact of Shootings on Black Lives Matter; 2016 Candidates Respond to This Week's Shootings; Clinton Emails: "An Unacceptable Lack of Transparency"; Could Clinton's Candidacy Bring Anti-Woman Backlash? Aired 9-10a ET

Aired July 09, 2016 - 09:00   ET

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

[09:00:41] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish. It's been a turbulent week, and we have exceptional guests ready to sort it out.

Two more killings of black men at the hands of police captured on video, then a retaliatory sniper attack at a protest march leaves five police officers dead.

Among my questions, what's the future of the Black Lives Matter movement?

Plus with the political convention about to commence, the candidates strike different tones on this climate of violence.

And, as anchor Gretchen Carlson is shown the door at FOX News, she lobs a Molotov cocktail, a sexual harassment suit against its chairman Roger Ailes. Could it prove his downfall?

Also, is Hillary's candidacy a landmark for women or just another example of tokenism in history? Best-selling author turned podcaster Malcolm Gladwell is here.

But first what are the implications of this week's shootings initially black men by police, both in Baton Rouge and Minneapolis, and then the sniper attack in Dallas that left five police officers dead and another seven wounded?

Joining me now is Charles Ramsey. He's the former commissioner of the Philadelphia Police Department, former Washington, D.C. police chief and he was the co-chair of President Obama's Task Force on 21st Century Policing.

Chief, I recently re-read the recommendations of your task force. In those circumstances where law enforcement takes the life of an individual, did you go far enough in terms of what you recommended?

CHARLES RAMSEY, FORMER CO-CHAIR, TASK FORCE ON 21ST CENTURY POLICING: Well, in retrospect, I think we could have gone a bit further. I mean, the recommendations are good solid recommendations. But we still have issues. We still have problems and in looking at it now, and I have to have a bit of a disclaimer. What I am about to say isn't coming from the task force. The only person I've discussed this with is lawyer Robinson who is my co-chair in the task force.

But I believe we could take a step further. For example, the investigation of officer-involved shootings that involved injury, death or any in custody death. I believe that one way of solving the problem would be for the attorney general to establish within each U.S. attorney's office, which by the way the U.S. attorney's offices cover the entire United States and its territories. A federal force investigation team within that U.S. attorney's office.

Now that could be made up of retired FBI and other federal law enforcement officials, a member from the community that that particular U.S. attorney office covers, assistant U.S. attorneys to look at every shooting that takes place by police officer anywhere in the country and do an independent investigations.

Now that's not a civil rights investigation. If we find, during the course of the investigation, that there were civil rights violations that occurred, it can always be referred. But I think building trust and legitimacy has gotten to a point now where there is just a lack of trust among the community that police agencies can conduct investigations of themselves and quite frankly even surrounding jurisdictions looking at another police department I don't think goes far enough. So if we had it to do over again, that would be one of the recommendations.

SMERCONISH: I respect the fact that you can't speak for the entire task force, but as I look at recommendations 2.22, 2.23, I think Charles Ramsey is making some news insofar as you are now saying that in every U.S. attorney's office there ought to be a unit that would investigate each one of these shootings.

RAMSEY: Listen, we have to face facts. I mean, I think about what Director Comey from the FBI said about a year ago. There are some hard truths that we have to face as a society. And this is one of them. We -- we just simply lack the credibility to be able to do this in a way that convinces the public that it's fair and impartial. And I think that's important.

It doesn't mean that the departments are incapable of doing it. But it's about trust and it's about perception, and I think we have to face that reality and that is one recommendations. I think it's a concrete step that could be taken that would do a lot to move in the right direction. I also think that we have too many police departments in the United States. We have about 18,000 police departments.

[09:05:03] It's hard to have consistency in policy, training, procedures, all those kinds of things when you have that many police departments. Most departments in the United States have fewer than 50 police officers. There has to be a serious effort toward regionalization, merging a lot of these departments. I think the goal ought to be within 10 years to cut the number of departments in half in the United States.

SMERCONISH: Chief --

RAMSEY: Again, these are steps that are going to take some time but we can do it.

SMERCONISH: I want to ask you about the subject of disproportionality. And here's what I hear. I hear some saying well, African-Americans are disproportionately and singled out. For example the broken taillight in the Minneapolis case. Others respond and say well, crime is committed disproportionately in the African-American community. You say what to that issue?

RAMSEY: I say everybody is right. I mean, listen, there's a lot of crime that takes place and again it is another hard truth. We have to take a look at police, we have to look at ourselves, we have to look at -- how we go about enforcing the law, how we police in communities. But communities have to take a hard look at themselves as well. They're approximately 13,000 homicides that take place in the United States every year. Those are not police shootings, these are people killing other people. And unfortunately a large parentage of that occurs in many of our inner cities. We have got to face the fact that we've got issues there.

Now there are drivers, there is societal that create an environment where that occurs. We've got extreme poverty, we got dysfunctional educational systems, dysfunctional families. These things are long termed but they've got to be addressed and they've got to be fixed. We're not going to ever get out of this. We are going to simply go from viral video to viral video with the same talking hits that appear on network TV to talk about the same thing they talked about with the last shooting.

At some point, we've got to sit down, have thoughtful discussion, followed by concrete action if we're going to get out of this.

SMERCONISH: One final subject if I might. The use of the robot in Dallas, do you have any due process concerns?

RAMSEY: Well, I haven't heard of that before. But I think under the situation and circumstances, you have no other civilians that could be injured. You already have a dozen police officers shot as a result of this individual. Through phone conversations he made it clear he wasn't finished.

I mean, it was a unique situation that required some unique tactics in order to resolve it. I don't know any more than you know about how it was used. I but think that we have to take a look as an individual situation. Dave Brown is one of the best police chiefs in the United States and I'm sure he made that decision with careful consideration and careful thought. But they had to bring that thing to the end. They could not afford to have more people killed by this guy.

SMERCONISH: I appreciate and miss your sober analysis. Thank you, Chief Ramsey.

RAMSEY: Thanks, Michael.

SMERCONISH: In three terrible days of violence, a "New Yorker" piece about this week's shootings by police and then of police.

Jelani Cobb writes, "The context o f the conversation about police accountability has been irrevocably changed. Black lives matter but reports that those words were uttered by a gunman in Dallas, mean that any movement under that banner may well have met its end."

So what does the future Hold? Joining me now, Vanderbilt University law professor Carol Swain civil rights attorney Areva Martin.

Professor Swain, black lives matter, the movement, has become a political flash point. I saw a "Drudge" headline which said, "Black Lives Kill." Is this the end of the Black Lives Matter movement?

CAROL SWAIN, VANDERBILT UNIVERSITY LAW PROFESSOR: I would hope so because I believe that it has been a very destructive force in America. And I urge all of your viewers to go to their Web site and look at what they are really about. It's a Marxist organization. All about black liberation. It's not really addressing the real problems affecting African-Americans. And so it's problematic. It's misleading black people. It needs to go.

SMERCONISH: Areva, your response?

AREVA MARTIN, CIVIL RIGHTS ATTORNEY: That is absolutely ridiculous. Black Lives Matter has done more to move the needle on reforms in the criminal justice system then elected officials and community leaders all over this country. I live in Los Angeles, the Los Angeles Police Department, one of the largest police departments in the country, now is equipped with body cameras. That's true of other police departments all over this nation primarily because young people primarily took to the streets, Black Lives Matter, to raise the issue of the inequities in the criminal justice system.

And just because one lone individual, criminal who's not affiliated with the Black Lives Matter group, does what happened in Dallas, shoots those cops, you cannot equate what he did with that entire movement. It is a peaceful movement, it is a movement that's raising the issue of the criminal justice system, the disproportionality of racial bias in their system. And I think they ought to be credited.

[09:10:01] I think they're going to be empowered. I think they're going to continue to push the needle on this thing we're tackling in this country called justice.

SMERCONISH: Professor Swain, I think I hear you say that you're not excoriating the movement just for the actions of this lone man but rather you've looked at what the group purports to stand for itself, and you don't like what you see.

SWAIN: No, I don't like what I see. It's pure Marxism, it talks about state violence, genocide, all of those buzz words that are quite destructive. And again, I urge your viewers to go to the Black Lives Matter's Web site and read their own definition of what does Black Lives Matter means. And in the case of the two recent police shootings, videos don't tell the entire story. And if you look a bit further in the case of the shooting in Louisiana, the guy was a convicted felon. He had an illegal gun and he resisted arrest. And so we get part of the story.

And in the case -- in Minnesota where you had the girlfriend that videotaped, were there other videotapes that she has on her Facebook, that she has live-streamed, and in one of them she and her boyfriend, they're sitting in her car, smoking reefer with the child in the background. And so that video is out there and so we have to look at the credibility of the witnesses. We need to not rush to judgment and I find that media, they're putting too much focus on the videos before we had the facts.

SMERCONISH: Areva, respond to that?

MARTIN: With all due respect, Professor, you just suggested that the shooting of Alton Sterling is justified because he has a prior criminal record. At the time that the police arrive at the scene after getting a call from a homeless man, they had no information about his record. Simply because you have a criminal record doesn't mean your life is any less valuable in this system. Police officers aren't empowered to shoot people because they have a criminal record. They had -- they didn't have that information when they --

(CROSSTALK)

SWAIN: They had information that he had a gun. They knew he had a gun and it turned out to be an illegal gun.

MARTIN: The only thing that's relevant in -- can I finish please?

SWAIN: It turned out to be illegal.

MARTIN: I allowed you to finish. Let me finish please.

SMERCONISH: Areva -- please, Areva. Professor, let her finish. Go ahead.

MARTIN: The whole issue -- yes, the issue is, were those officers in eminent danger, did they have the need? Was there an opportunity to de-escalate that situation? And what we see time and time again is when you have officer encounters with African-American men, there is never an effort. And I don't want to over generalize. But generally you don't see efforts to de-escalate the situations. You see the situations go from zero to 100 and a level of force that's used that's not used when they're not African-American men involved.

So for you to suggest that Alton Sterling's criminal record somehow justifies those cops shooting him when he was unarmed pinned to the ground is just a ridiculous statement. And it really highlights the issue of race and how African-American men are treated differently by law enforcement in this country.

SMERCONISH: Professor Swain, do you believe that the climate of racial tension in the United States today mirrors where we were in the 1960s?

SWAIN: I think that conditions in America have worsen. And when we talk about criminal justice, we have to deal with the fact that blacks are 13 percent of the population yet they do commit a disproportionate amount of crime, like 37 percent of the violent crimes. They are more than eight times more likely to be -- to commit homicide. And so when a police officer approaches a black person, I'm sure if it's in a city they have that in the back of their minds.

And I don't think people should be shot for routine police stops but for police officer, whenever they approach a car and they don't know who's in the car, there is always danger. And one reason why more blacks died in these encounters is that they are more likely to resist arrest.

(CROSSTALK)

SMERCONISH: Areva --

SWAIN: And Areva knows that. And she should be trying to educate the population.

SMERCONISH: Areva, you get the final word. I want to keep it fair. Areva, go ahead.

MARTIN: OK. In the Philando Castile case, the woman that did the Facebook video, rather than being vilified by Dr. Swain, she should be applauded for her calm, for her composure, for allowing us to see how a routine traffic stop turned into a murder. A cop shoots into a car with a woman and a 4-year-old child, and rather than focus on that cop's action, we are now blaming both the victim, Philando Castile, and the courageous woman that videotaped that.

And that is what the issue is, that we have to deal within this country. If we're ever going to give passes, blaming the victim, the victim shouldn't have resisted, the victim shouldn't have run, the victim should have complied, let's focus on the cop that has a badge and a gun and is acting under the cover of authority. That's where this issue would be resolved.

[09:15:10] SMERCONISH: A lot of disagreement but respect, and I appreciate having the dialogue here. Thank you, ladies.

SWAIN: Thank you.

MARTIN: Thanks, Michael.

SMERCONISH: Tweet me @smerconish with your thoughts. I am sure you will have many. I'll read some later in the program.

Still ahead, the shootings and protests are symptoms of a huge divide in America -- we just saw that -- that's long been threatening to implode. How can the presidential candidates hope to address these problems.

And is Trump more interested in winning the presidency than serving as president? He may have just been playing coy with the "New York Times" but what if not?

And after being let go, FOX News anchor Gretchen Carlson filed a sexual harassment lawsuit against the powerful head of the network, Roger Ailes. Is it sour grapes or something that could bring him down?

(COMMERCIAL BREAK)

SMERCONISH: Two years after the police shot Michael Brown in Ferguson, America seems a nation in crisis, hopelessly divided on matters of race, gun control and how to fix any of it.

[09:20:08] And we're on the eve of an election. What will Hillary Clinton and Donald Trump do? What can they do?

Joining me now are Betsy Woodruff, political reporter for the "Daily Beast," Michelle Bernard, independent political analyst, and David French, staff writer for the "National Review." You might remember that Bill Kristol recently touted Mr. French as a potential candidate.

Betsy, let me begin with you. In the last conversation I offered an analogy to the 1960s. Politically speaking we know how that ended. In the 1968 election of a law enforcement candidate Richard Nixon. Any parallels that you see relative to Hillary and Donald?

BETSY WOODRUFF, POLITICAL REPORTER, THE DAILY BEAST: You know, I think it's possible, and one of the reasons that Trump has been able to garner so much support from conservatives, from folks on the right wing and from folks who haven't previously been involved in this cycle is that what he's saying sounds very different from a lot of the political consensuses that we see in Washington.

The fact that he's been unequivocally (INAUDIBLE), that he hasn't floated any criticism. That he's actually been more single mindedly supportive of the status quo in terms of how policing works and in terms of how the criminal justice system works than Hillary has. That makes him stand out. A lot of folks are reflexively (INAUDIBLE) and don't want to hear questions. Don't want to have tough conversations about the way policing policy works. Trump is really appealing to those voters and there might be more people of that mindset than Hillary may think.

SMERCONISH: Michelle, at the end of a turbulent week Hillary Clinton said it's a time for more love and kindness. Donald Trump's first reaction, our country is under attack. Which struck the tone that's more in keeping with where the country lies?

(LAUGHTER)

MICHELLE BERNARD, INDEPENDENT POLITICAL ANALYST: Hillary Clinton's statement is absolutely more in keeping with what the country should be aspiring to be. You know there comes a point in time, I was listening to your interview earlier with the former police chief from Washington, D.C. and Philadelphia, and you know, one of the things that he said that struck me was that we have to, you know, face reality and be honest about both sides of the equation. And there comes a time in the presidential campaign, and I think that time is right now, we are in a dangerous moment in the country. There's a crucible moment, I would say, where we have to face the

reality that with these cameras, what black Americans have been complaining about for many, many years and have always known to be true is the reality and it has to be dealt with openly and honestly and for Donald Trump to say that the nation is under attack it's so incredibly irresponsible particularly coming on the heels of what we saw happened in Dallas just yesterday.

SMERCONISH: David French, is the nation under attack?

DAVID FRENCH, STAFF WRITER, NATIONAL REVIEW: No, the nation is not under attack but the nation is heading in a terrible direction right now. We're not in 1968 yet. I mean, 1968 was worse than people remember. But we're headed in a 1968 direction. And that's -- you know, one of the things that Donald Trump feeds off of is this sense that people have that things are spiraling out of control. And he's going to come in and he's going to make things right. He's going to set things right.

Unfortunately he has no idea of what he's talking about, about any policy issues that he ever addresses which is a -- which is a disadvantage for a presidential candidate. But he is absolutely sensing that people are feeling that things are heading in a downward spiral. And the fact of the matter is when it comes to the levels of political violence in this country, when it comes to the levels of attacks on police officers, there's been 44 percent more deadly shootings of police this year so far than last year at this point.

There have been more ambushes of police this year already than there were for the entirety of last year. So he is accurately identifying a terrible trend but we are not at 1968 yet. I hope we never get there.

SMERCONISH: David, do you put any stock in the reports that there is still a movement afoot among some on the Rules Committee to throw an 11th hour monkey wrench into Donald Trump's nomination in Cleveland?

FRENCH: I put a lot of stock in those reports. You know, I don't know if it will probably happen. I think it's a solid hope that it will happen. Look, there are hundreds of delegates who have already come forward to say that they oppose Trump. I saw a report yesterday that if there were actually a secret ballot there might be a majority of the delegates who are against Trump.

We'll have to see where we are in a couple of weeks when the convention starts because the fact of the matter is, is that Donald Trump is doing -- on a day-to-day basis he's doing about the best that he possibly can to spoil Republican chances to take the White House. He's somebody who has continually undermining the GOP cause about every other day. It's really astonishing to watch.

SMERCONISH: Betsy, is Newt Gingrich the running mate?

WOODRUFF: It looks like currently at this moment, Newt Gingrich is the leader to be the running mate. That said, there's some really interesting hiccups in Gingrich's background that can make it a little awkward for him to be Trump's vice president, not the least of which is the fact that Gingrich was one of the key players in the House voting to pass NAFTA back in 1993.

[09:25:06] When Gingrich appeared with Trump earlier this week at the campaign rally, it was kind of funny because Trump in that event, I believe it was Thursday night, if memory serves, said that he thought NAFTA was one of the worst trade deals ever. Incredibly destructive. And he said that after standing shoulder-to-shoulder with one of the key players in the passage of NAFTA. It's going to be really hard for Trump to find any Republican with establishment credentials or D.C. experience who hasn't been adamantly opposed to him on some of his key issues because where he is at, particularly on trade and immigration is really, really far outside where mainstream moderate establishment, longtime D.C. Republicans with a few exceptions are. So picking Gingrich could put him in a slightly awkward position.

SMERCONISH: Michelle, I spoke to Frank Fahrenkopf this week on my radio program. He's the co-chair of the Commission on Presidential Debates. And this year's format in keeping with the way it was done in 2012. There will be a 15-minute time increment devoted to a particular subject matter. There's not much room to hide if you're given 15 full minutes on one subject. Who does that benefit?

BERNARD: I think it's going to absolutely benefit Hillary Clinton. She is -- you know, she is phenomenal on the issues. She's so adept at speaking about policy and quite frankly given the tone and tenor of where we are in the campaign season and all that is happening in the country on the domestic front over the summer I think this is going to be a fantastic opportunity for Hillary Clinton to show voters why she is the peon to come out and vote for because she's going to be able to give real policy solutions to the issues that are facing the nation.

SMERCONISH: And David, I'm about to be give my assessment of the e- mail issue. In 30 seconds or less, what's your net-net as it relates to Hillary?

FRENCH: I mean, look, if -- I'm a former major in the United States Army Reserve, if I have treated classified information the way we now know that she treated classified information, the single most important goal in my life right now would be to negotiate a good plea bargain. She broke the law, she lied to the American people, and there should be, if the Democrats cared about integrity in their public officials, there should be a dump Hillary movement right now in the Democratic Party in the way there is a dump Trump movement in the Republican Party.

SMERCONISH: I appreciate all three of you being here. Betsy, thank you so much. David, I appreciate it. Michelle, nice to see you again.

BERNARD: You too.

WOODRUFF: OK.

FRENCH: Thank you.

SMERCONISH: Up next the chairman of FOX News facing a lawsuit alleging sexual harassment. Could this be the end of Roger Ailes' reign?

And we may never know for sure whether anybody hacked Hillary Clinton's private e-mail servers and mobile devices. But we certainly do know that her actions imperiled the public's right to know. And I will explain in just a moment.

(BEGIN VIDEO CLIP)

HILLARY CLINTON (D), PRESUMPTIVE PRESIDENTIAL NOMINEE: I would certainly not do that again. That is something that at the time, as even Director Comey said, seems like a convenience but it was the wrong choice.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

[09:32:28] SEN. BERNIE SANDERS (I-VT), DEMOCRATIC PRESIDENTIAL CANDIDATE: The American people are sick and tired of hearing about your damn e-mails.

CLINTON: Thank you. Me too, me too!

SANDERS: You know?

CLINTON: Thank you, Bernie! Thank you.

(END VIDEO CLIP)

SMERCONISH: Bernie, you blew it.

By avoiding discussion of Hillary's damn e-mails, Sanders sacrificed a major point of criticizing his opponent, which in the aftermath of what we learned from FBI Director James Comey, should no longer be muddled by partisan division.

Look, we may never know whether Hillary Clinton's private e-mail serves were hacked by hostile actors. But we do know that her actions imperiled the public's right to know. Despite her claim to the contrary, her communication choice was never a matter of simple convenience. It was about asserting control at the expense of transparency and possibly national security.

Clinton supplanted the role of Freedom of Information Act officers within the State Department whose job it is to facility the access to information. Her use of private e-mail serves enabled the deletion of messages, and the avoidance of FOIA requests, and her representatives should never have been the sole arbiters of which among 60,000 e-mails should have entered the public domain.

More than half those messages were destroyed without any chance for second-guessing. And her staff's determination that all those e-mails were either entirely public or private defies common sense. Think about your workplace. How often do e-mails combine work and

play? And yet in Clinton's case, there was an all or nothing determination. That some e-mails could have discussed both yoga or Chelsea's wedding and government business? It's only logical.

Compounding the situation is the equally disquieting sworn testimony of Patrick Kennedy, the State Department's undersecretary for management. Kennedy claimed though he received 50 to 75 e-mails from Clinton via her private servers, he did not recognize they were coming from at Clinton.mail and not at state.gov, really?

And yet in the end, Director Comey said no reasonable prosecutor would bring such a case.

That came as no surprise to Dan Abrams, the ABC legal analyst. Back in February, he looked at the law and reached that same conclusion. Dan joins me now.

Well, you nailed it. Back in February, you said, look, let's stop and take a look at the statutes.

DAN ABRAMS, ABC NEWS LEGAL ANALYST: You know, I hate to say this, because I know how people are going to react. But this is isn't that hard a call legally. It's really not that close, legally, based on the facts, as Comey laid them out.

[09:30:02] My concern in writing this article for "Law and News" when I did, was that maybe there is stuff out there we don't know about.

SMERCONISH: Right.

ABRAMS: OK. If there is stuff out there we don't know about, I don't know what the result is going to be. But based on what we know today -- and Comey did release additional information we didn't know about, additional problems for Hillary Clinton. But that still don't reach the level of criminality.

We're not talking about wrong. We're not falling about should she have done it. We're not talking about did she violate State Department rules. We're not talking about, should there be ramifications? We're talking about, is this criminal? And the answer to that is no.

SMERCONISH: There were two statutes at play I don't want people's eyes to glaze over. But with regard to the misdemeanor statute, it has language, "knowingly removes such documents". You don't think he could get home based on that language.

ABRAMS: Right. That was the one more people initially expected him to be focusing on, right? Misdemeanor, not the felony. The felony is under the he is under the Espionage Act, which sounds awfully scary anyway. But the misdemeanor, knowingly removes such documents, or materials, without authority and with the intent to retain them, et cetera. That's been a crime people have been convicted of or pled guilty to. We're basically copying documents. They shouldn't have copied them,

taking them home with them, et cetera. And many said, well, why is this any different?

The reality is, and Comey really focused on this, and I think appropriately -- you don't just say, did someone knowingly set up the server. You ask the question, did they knowingly commit a crime? Did they know what they were doing was wrong in this context? No one has been prosecuted under that crime or the felony.

SMERCONISH: Well, the felony, Dan, says gross negligence.

ABRAMS: Right.

SMERCONISH: And he used the words "extreme carelessness", and people said, well, aren't they synonymous?

ABRAMS: And, look, you can understand why people would ask that, right? It's a fair question to ask when you start using that kind of language. And, you know, I think Comey walked the line when he started using that kind of language.

But this law has been interpreted by the U.S. Supreme Court, the felony law, to basically say, yes, it's gross negligence. Of course we expect that someone will have had bad faith and intent before we prosecute someone under this law.

So, what people are doing is we now have a whole group of amateur legal analysts out there who are saying, look at the language, look at the language, this could fit into it. And some of them, by the way, professional legal analysts and smart people who are saying, you know, you could define this, and you could charge her with a crime. You could. It would be the first time we had had ever used these laws in this way. I don't think you should. I don't think the goal here is to say, gotcha.

The goal is to treat Hillary Clinton like anyone else would be treated. And that's where I give Comey a lot of respect -- which is, he's clearly no fan of what Hillary Clinton did.

SMERCONISH: Yes, no doubt. And a straight shooter in the way he presented himself.

Let me ask about a different legal issue, the hottest legal at the end of the week. You're the founder of Mediaite, and for those not in the know, those of us in the business, the cable television business, you're our electronic bible. So, you're perfectly positioned to respond to Gretchen Carlson filing a sexual harassment lawsuit against Roger Ailes, the chairman of FOX News.

Might it bring him down?

ABRAMS: It's a bombshell allegation. If all the allegations are true, and if there are other women as his -- as her lawyers are claiming are going to come forward and allege horrible conduct, sure. It could bring anyone down. But that's going to be the key question, right? Which is what do they

have? First of all, in her case -- are there audiotapes? Are there e-mails? Are there contemporaneous notes? What does she have to back up most importantly that all-important meeting she had with Roger Ailes where she claims he was saying, if we sleep together --

SMERCONISH: I'd keep you.

ABRAMS: Yes, this would be better for both of us.

And then question two is going to be, well, who else comes forward?

SMERCONISH: Right.

ABRAMS: And exactly what are they going to say? And we don't know the answers to either of those questions right now.

SMERCONISH: Dan, even if they don't come forward -- I've been mentally thinking of the whole lineup, the female lineup at FOX. And I've been thinking, I'll bet some of them are fearful of just having to go through a deposition, right, and having to provide sworn testimony as to all their interactions with Roger Ailes.

ABRAMS: Well, most importantly, there is a suggestion, more than a suggestion in the lawsuit that there are women at FOX News who slept with Roger Ailes who benefited from that. That's a bombshell allegation, which she sort of drops into the lawsuit. If she's going to start naming names of those people and trying to get those people to testify --

SMERCONISH: Her lawyer says the phone has been ringing off the hook since this made the newspaper.

ABRAMS: You know, look, I don't know what that means. The bottom line is, in every high-profile case, a lawyer will tell you that their phone rings off the hook with people calling in --

SMERCONISH: Sometimes it's true.

ABRAMS: Sometimes -

SMERCONISH: Cosby, it was true.

ABRAMS: Sometimes it's true. I'm just saying, the fact that her lawyer is saying his phone is ringing off the hook doesn't persuade me.

[19:40:01] SMERCONISH: Understood.

ABRAMS: Let's wait to see what evidence -- if this case goes anywhere. So, the most interesting question, of course, is going to be does it settle? Most of these cases tend to settle. But you would think this case would have settled earlier, because this is the last thing Roger Ailes wants, is just the allegations out there at all.

SMERCONISH: No doubt. Dan Abrams, thanks so much for the analysis.

ABRAMS: My pleasure.

SMERCONISH: I appreciate.

Coming up, if Hillary Clinton is elected the nation's first female president, will it mark the end of sexism in our politics? No, says best-selling author, now podcaster, Malcolm Gladwell. He thinks the treatment of the former secretary could actually get worse if she is elected president. And he's going to join me in a moment.

And here's one of the tweets that has just come in, this about the discussion between professor Carol Swain, and attorney Areva Martin regarding Black Lives Matter. By the way, I agree with the person who sent this. It proves that we can have the conversation and do it in a respectful manner, even when we don't agree.

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[09:45:03] SMERCONISH: Malcolm Gladwell is the author of five "New York Times" best-sellers. He's now turning his attention to podcasting. The launch of the brand new series which is titled "Revisionist History."

I've listened. I think Hillary Clinton should listen to at least episode number one.

Malcolm Gladwell, thrilled to have you on the program.

MALCOLM GLADWELL, HOST, REVISIONIST HISTORY PODCAST: Delighted to be here.

SMERCONISH: "The Lady Vanishes," you tell an engrossing story in the first episode. Oddly, it's about a 19th century British painting. And yet it has relevance to Hillary Clinton. At least I think so. Explain to me the background.

GLADWELL: Yes, so this is an episode about a painting called "Roll Call," which in the late 19th century England, is briefly the most famous painting in all of England and it's painted by a woman at a time when the artistic community in England is overwhelmingly male. And everyone thinks this is the -- the door is going to finally open for women to finally enter the profession of painting and so she is thought of as this great sort of token. Sorry, this great pioneer.

And that's not what happens. What happens is, the minute she achieves even a little bit of success, the door just slams shut. And she is essentially pushed out of the mainstream of English painting and subjected to some kind of male establishment.

And that idea is that notion of a token, about someone who is an outsider who is let in only to have the door shut behind them, is what the show is about. Is -- there's -- in psychology, a psychologist name Dan Effron has come up with this phrase called "moral licensing", which describes that, which is when a group -- when a majority group does something generous or good or open, they feel they have the license then to go back and to do something nasty or to close the door that they once opened, or to lash out at someone who they had once welcomed.

And that's what happened to Elizabeth Thompson in the 19th century. And I feel like that has happened many times to outsiders who enter a closed world. And I sort of feel like that's what might happen to Hillary Clinton. That, you know -- in the show, I talk about the Julia Gillard, who was the prime minister of Australia, first female prime minister of Australia, so a parallel to what might happen with Hillary Clinton.

The minute Gillard takes office, she gets subjected to a level of misogynistic abuse that was astonishing. And I interview her pore are for the podcast and I -- that's the same phenomenon, that having done something so generous as to let in the first woman ever, then the majority feels they have the freedom, the license, to lash out. And it's --

SMERCONISH: And as you document in the podcast, this notion of moral licensing is something that you saw with regard to the painter. You saw with regard to Jackie Robinson and baseball you even s it with regard to those who cast ballots for Barack Obama.

GLADWELL: Yes. This is some of this psychologist Dan Effron's research. He gets started with this when he starts to look at people who voted for Barack Obama.

And he found that people who voted for Obama then were more likely to take illiberal positions, to take positions that might be considered racially insensitive or -- and what he was saying is, this is the same phenomenon. That when people can say to themselves, look, I'm the kind of person who voted a black man into the presidency of the United States, once they can say that about themselves, they feel they have the freedom then to go and indulge some of their baser instincts. That phenomenon I think explains so much about the persistence of discrimination.

SMERCONISH: And so to those who say, well, the nation might shatter the final glass ceiling with the election of the first female president of the United States, Malcolm Gladwell, now of Revisionist History fame, says, not so fast. This may get more challenging for Clinton.

GLADWELL: When you look at other countries -- the end of the podcast, I simply go around the world and look at how many countries have had had one and only one female head of state. And it's an astonishingly long list.

You know, same thing -- think about how many major cities in the United States have had one and only one black mayor, right? That this is a common phenomenon. That you open the door, you let one token in, and then you say, look, I can now shut it, because I proved my bona fides -- I voted for David Dinkins in New York City for mayor and now I don't have to vote for a black man again. Or I voted for Mayor Bradley in L.A. and now, I don't have to vote for a black man ever again.

[09:50:00] I mean, that is a very real phenomenon in American politics.

(CROSSTALK)

SMERCONISH: I get it. I mean, the takeaway is, you'll know when we've gotten past these prejudices when the nation has its second African-American president or its second female president.

GLADWELL: Exactly.

SMERCONISH: Hey, Malcolm, I wish you all good things. I thoroughly enjoyed the podcast.

GLADWELL: Thank you so much.

SMERCONISH: Keep the tweets coming @Smerconish.

Here's what Dang just sent. "Smerconish, what Gretchen did was courageous she when she was on FOX's payroll? Could have helped countless other women."

Maybe, Dang. But, you know, if her claim is true, she endured a climate -- if it's true, she endured a climate of sexual harassment, but the discrimination came when her own contract wasn't renewed.

I'm back with a moment with more tweets.

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[09:55:02] SMERCONISH: I always say, if you can follow me by spelling "Smerconish," I welcome your sweets.

Let's see what came in during the course of the program. Look at this one, "Sorry, Smerconish, but objectively, your ugly biased attitude today was to sabotage Hillary Clinton." Normally, the critiques that say I have an ugly bias are supposed against Donald Trump.

No, I call them as I see them. I deal with facts and I believe this e-mail thing has been misinterpreted by many. It's been all about the thwarting of the public right to know under the Freedom of Information Act. That's what I said. I challenge you to call me out on facts that I offered that were incorrect.

Here's tweet number two that came in today, interesting. "Smerconish, why not use tear or sleep gas on Dallas shooting suspect?"

This is interesting. I have been critical of the use of the weaponry made for a battlefield in Iraq or Afghanistan that gets delivered to Mayberry, USA. But not in this case. The guy killed five cops, shot seven more. I think that he forewent his due process rights.

And there was this, got a kick out of this one. "Smerconish, I had to look closely at the TV. David French looks like you with a beard." Let's take a look. There we are. Now, here's how you'll know the difference between us.

Bill Kristol has not yet asked me to run for president against Donald Trump.

Speaking of which, I will be in Cleveland one week from today as we get ready for the Republican National Convention. I'll see you then. Continue to tweet @Smerconish.