Return to Transcripts main page


Roy Moore Denies Allegations of Dating and Sexual Misconduct with Younger Girls; Former Alabama GOP Chair Marty Connors Defends Roy Moore; Al Franken May Have Left Foot in the Door to Remain in the Senate; FBI Agent Peter Strzok Removed from Mueller Investigation over Anti-Trump Tweets; Trump Criticizes the FBI; The President and Others Attacked the Not Guilty Verdict of an Undocumented Immigrant in the Death of Kate Steinle. Aired 9-10a ET

Aired December 09, 2017 - 09:00   ET



[09:00:37] MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world.

In Pensacola last night, President Trump made clear his vote in Tuesday's Alabama Senate election.




TRUMP: Do it.


SMERCONISH: One closely watched factor in the battle for Jeff Sessions' old seat is whether voters believe or care if Roy Moore assaulted a 14-year old when he was in his 30s. Can Doug Jones score an upset?

On a related note, Al Franken announces he's resigning from the Senate -- not right away, but in the coming weeks. So, is this really the end, or has Franken left the door open?

Plus, the FBI is fighting to maintain something that has always been sacrosanct -- its reputation. The agency's top critic is the the president, after a top FBI agent let go from the Mueller team last summer reportedly sent anti-Trump text messages, and softened Comey's statement on Hillary's e-mails.

And the president and others attacked the not guilty verdict of an undocumented immigrant in the death of Kate Steinle, but one of the alternate jurors insists the jury did its duty, and I'll ask him why.

And finally, I have a question. If you cheered the termination of someone in the arts caught up in the reckoning over sexual harassment, should you no longer watch, listen or enjoy their past work? Tweet and Facebook me on that for later in the program.

But first, for those voting in the Alabama Senate race on Tuesday, and wondering whether they might be voting for someone who, as an adult, fondled the genitals of an underage girl? I think I can distill the concerns over Roy Moore's past into a single question.

Is it reasonable to conclude that Moore, at age 32, assaulted a 14- year old, given evidence of his involvement with other slightly older teenage girls? My answer is yes. And despite our politically polarizing world, I'm relying on critical thinking. I think a person's custom and practice tell us a great deal.

First, here's my baseline. Just about the only thing we know for sure, Moore was 38 when he married his wife, Kayla Kiser, then age 24. Nothing illegal; maybe an eyebrow raiser at best. The older that men get, the greater the pass they seem to acquire from society for dating women their junior. But still, it tells us about his tastes, at least in one case.

Now, there are several women who have told similar stories to "The Washington Post." Wendy Miller was 14 and working as a Santa's helper at Gadsden Mall when she says Moore, then in his early 30s, first took an interest in her, and 16 when he asked her out. Gloria Thacker Deason was 18, Moore was 32, when she says they met at the mall, where she worked for a jeweler, and they began dating.

Debbie Wesson Gibson saved her high school scrapbook documenting that after she met Moore as a speaker in her high school civics class, he accompanied her to her high school graduation.

She wrote a hand notation, reading, "3/4/81. Roy S. Moore and I went out for the first time. We went out to eat at Catfish Cabin in Albertville. I had a great, underscored, time." She was then 17; he was 34.

Put it all together. When Moore was 38, he married a 24-year old. When he was in his early 30s, he asked out a 16-year old. When he was 32, he dated an 18-year old; when he was 34, he dated a 17-year old. And finally, most importantly, this brings us to Leigh Corfman.

Corfman was just 14-years-old -- two years below Alabama's age of consent -- when she claims she met 32-year-old Moore at the Etowah County Alabama Courthouse where he was an assistant district attorney.

Corfman was then accompanying her mother, who was present on a child custody matter. Moore offered to watch Corfman, obtained her telephone number, and soon thereafter, drove her 30 minutes to his home in the woods, and allegedly touched her inappropriately while guiding her hand to do likewise. Two friends told "The Washington Post" she reported her involvement with Moore


at the time. Now, when Sean Hannity asked Moore on his radio program about dating

teenage girls, the best the former judge could muster was that, "It would've been out of my customary behavior." More recently, on the campaign trail, he has taken to saying, "I don't know any of these women." But clearly, he does.

And just one more thing. As noted by Kyle Whitmire for, in Moore's book, "So Help Me God," he tells the story of meeting his wife at a Christmas party when he was 37, and she was 23.

Quote, "Many years before, I had attended a dance recital at Gadsden State Junior College. I remembered one of the special dances performed by a young woman whose first and last names began with the letter 'K.' It was something I had never forgotten." Could that young woman have been Kayla Kiser?

Well, he said that, long afterward, he determined he had indeed -- she had indeed performed a special dance recital years before in Gadsden. And in a radio interview this year, Moore said the recital was about eight years prior to their formal meeting. That means she would've been either 15 or 16.

Ironically, in a court of law, a judge might rule much of this inadmissible because it's too prejudicial -- it's too damning. And I'm not even including Gloria Allred's client with the yearbook.

But if you look at all the evidence, and assess it by the legal standards of proof -- either by a preponderance of the evidence -- meaning, more likely than not -- or clear and convincing evidence, a jury would likely believe that when Moore was 32, he was with a 14- year old.

Now, with all eyes of the nation focused on Tuesday's special election pitting Moore against Democrat Doug Jones, let's get a view from the ground.

Joining me now, Former Alabama GOP Chair Marty Connors.

SMERCONISH: Marty, from afar --


SMERCONISH: -- it seems like this race is a referendum on whether you believe the accusers. But what's it look like from the state of Alabama?

CONNORS: Well, you can -- you can honestly assess that the circus is definitely in town. I mean, we've had Gloria Allred here twice, so I think you know what that means.

But, generally speaking, there's three variables. Black vote, will that be intense? Will the Democrats succeed at suppressing the suburban Republican votes? And frankly, will rural voters backlash at the lectures that they're getting from Washington and some of the media? I mean, people in the -- in the South and Western states expect to get preached at on Sunday mornings, but not by Jimmy Kimmel on late night television.

SMERCONISH: But how 'bout the way in which I just laid out the public record of the accusers? I mean, that's not lecturing, right? That's a pretty balanced --


CONNORS: No, no --

SMERCONISH: -- analysis of --

CONNORS: -- that's not.

SMERCONISH: -- exactly --

CONNORS: I think -- I think you were --

SMERCONISH: -- my -- I guess my question --

CONNORS: -- you were accurate.

SMERCONISH: Well, I guess, Marty, my question is --

CONNORS: I think that --

SMERCONISH: -- that yours -- and I -- let me just finish this question.

Yours is a pretty conventional analysis, viewing this race by constituencies. But the elephant in the room, at least from afar is, do you believe these women, or do you believe Judge Moore? And I guess what I'm trying to understand is, is that what the race will come down to, or not necessarily?

CONNORS: I think the race will come largely down to that. But there's also a couple of things that you don't see on the national media.

For example, Gloria Allred has had this yearbook, they've altered it, and they won't subject it to an independent forensics study.

On top of that, this whole Gadsden Mall thing has been repeated, and repeated, and repeated, and repeated, and yet, the manager of the Gadsden Mall at that very time said, no, he doesn't remember Roy on any list.

As a matter of fact (LAUGHTER), the manager of that same Gadsden Mall said, "And I'm gonna vote for Roy Moore." Now, you will not see that on Jimmy Fallon's show.

SMERCONISH: Right. And you notice that I left out Gloria Allred's client because why muddy the water of this? My own opinion is that,whatever notation she added she should've revealed much sooner in time doesn't necessarily mean that not his signature.

But put that aside. What about all the other accounts? It does tend to present a custom and practice for the man.

CONNORS: Let me use your very word -- the word is custom.

You can say what you want to say, and the accusations that may or may not have occurred 30, 40 years ago. What's happened since?

I mean, normally people of this behavior repeat themselves. I can't see any evidence of that in the last 35 years.

SMERCONISH: Question for you. The Franken resignation.

Do you think that that will factor into the thinking of Alabama voters, insofar as they might go into a voting booth, saying, you know, Democrats are cleaning house. How can we justify that


Franken is out, and we're about to seat Roy Moore, given the cloud that surrounds him?

CONNORS: I don't think it's going to have a factor at all.

First of all, Al Franken really didn't say that he's out; he's sort of treading water. And he's -- I thought it was --


CONNORS: -- particularly funny when he said that, he's basically treading water.

And I think it was particularly funny when he said, "I want to be investigated by the Ethics -- Senate Ethics Committee." Do you know the last time a sitting senator was thrown out of the Senate? A hundred and fifty-five years ago.

SMERCONISH: Well (ph) --

CONNORS: So if I was Franken, (LAUGHTER) I too would want the Senate to investigate me.

SMERCONISH: -- let me -- let me ask you a question in your role as a party man, because you're a former state chair.

Does it occur to you that maybe the worst thing that happens nationally for Republicans is that Roy Moore wins on Tuesday, because then, in the midterm election in 2018, the Democrats are going to saddle him with every Republican across the country.

CONNORS: Yes, I expect that will come out of the mouth of every Democrat who opposes a Republican, of course. And the answer's pretty -- quite simple. I'm not running for the Senate in the state of Alabama. I'm -- and here's my -- here's my set of issues. Next question please. I mean, it's really that simple. And we've had other controversial candidates who didn't win, and they

too were hung around the next Republican Senate and House members, and it didn't seem to matter. We still have a majority.

SMERCONISH: Final question. Does he win or lose on Tuesday?

CONNORS: My bet is, in Las -- in -- Vegas' odds makers are still saying Roy, and has the edge, I'm going to guess, plus four, but I still have to weigh through those final variables.

But I think if suburban voters are not browbeaten into staying at home, Roy Moore should be the winner.

SMERCONISH: Marty, thank you, appreciate your analysis.

CONNORS: Thank you.

SMERCONISH: What are your thoughts? Tweet me @smerconish. Go to my Facebook page. I'll read some live during the course of the program.

Catherine (ph), what do you have?

From Facebook: "That is not evidence... I would not doubt that he did it, but the fact that he was with other young girls does not mean he was with a 14-year old. I can't stand Moore! I think he is a nut, but showing a propensity to go after other young women does not mean he was with this particular girl..We will see."

Brad, you may be correct. But I wanted to show a pattern of his interest in teenage girls at a time when he was in his 30s.

One more quickly, if we can. "Smerconish, the only thing that we can be sure of is that you are a liberal pushing their agenda."

Really, Linda? Watch the entire program, and see if that's your conclusion by the end, because there's a lot more to come.

Be sure to tune into CNN, by the way, Tuesday night. Election coverage begins at 5:00 pm Eastern. The polls close at 8:00 pm Eastern.

And still to come, with news that an FBI agent who'd been part of the Clinton e-mail and Mueller probes seemed to have an anti-Trump bias, the president tweeted that his own FBI is in tatters. What harm might this spat do to the FBI's reputation?

And, following charges of sexual impropriety, Al Franken stepped down from the Senate this week, but I think that his speech left his foot in the door. And I'll explain.



[09:17:28] SEN. AL FRANKEN (D), MINN./AL FRANKEN, FORMER MINN. SENATOR: I am announcing that in the coming weeks, I will be resigning as a member of the United States Senate.


SMERCONISH: In the coming weeks, that was one of just many aspects of Sen. Al Franken's resignation speech that struck me as unusual.

If you listen carefully, he kept his foot ever so slightly wedged in the door. In fact, if instead, Sen. Franken had been making a speech, and announcing that he was staying and fighting instead of stepping down, he would've had to have changed maybe one sentence in the speech? There was no admission, there was no contrition.

And who announces that they're resigning in the coming weeks? If you've done something so egregious that you're resigning your job, ya head for the door immediately.

In fact, that's what Trent Franks did yesterday, and that's not what Al Franken is doing. He was trying to thread the needle of refusing to admit charges of his accusers, while not antagonizing them further.

Franken's hand was forced by female Democratic colleagues, led by New York's Kirsten Gillibrand, who perhaps had their eyes on Tuesday's special Senate election in Alabama, and wanted to establish the moral high ground by ridding Washington of both Rep. John Conyers and Sen. Franken before Alabama voters cast their judgment on Roy Moore.

Franken walked the plank. But maybe he had his fingers and toes crossed. He never admitted wrongdoing. He said he'd been anticipating an opportunity to defend himself before the Senate Ethics Committee.


SEN. AL FRANKEN (D), MINN./AL FRANKEN, FORMER MINN. SENATOR: Some of the allegations against me are simply not true; others, I remember very differently.

I said at the outset, that the Ethics Committee was the right venue for these allegations to be heard and investigated and evaluated on their merits -- that I was prepared to cooperate fully, and that I was confident in the outcome.


SMERCONISH: Don't misunderstand -- I am not saying that Franken is staying. If he leaves in a week or a month, it won't diminish my observation.

I am saying that, when he spoke on Thursday, he sought to leave open the possibility that after Tuesday's vote, there might be some rethinking among his colleagues, perhaps with Moore getting elected, where Franken would then, say, hey, here's a guy against whom credible evidence exists that he assaulted a 14-year old, and he's about to be


seated in the U.S. Senate, but I have to pack my bags? That doesn't seem right, he'll think.

Joining me now, someone who was on CNN's "NEW DAY" with me yesterday morning, and called my analysis crazy --


SMERCONISH: -- Minnesota Public Radio Host, Kerri Miller.

OK, Kerri, I've invited you to explain crazy. Why do you think he said in a couple of weeks?

MILLER: You know, Michael, when I hear you explain all this, I think you're trying to have it all ways. I mean, you're saying, "Don't get me wrong; I don't think he's staying, but I'm not convinced he's leaving."

And I'm also say -- going to say here that somebody better tell Minnesota Gov. Mark Dayton what's going on here if Franken has his fingers and toes crossed, because Gov. Dayton is spending the weekend thinking about who's going to replace Sen. Franken.

So I think it's a done deal. I'm not sure why you're going around saying --


MILLER: -- that you think it's not a done deal. But everybody here in Minnesota, at least the political leaders, are proceeding as if it is a done deal.

So I think if Sen. Franken --


SMERCONISH: Well, did you --

MILLER: -- would change his mind on Wednesday morning, it'd be -- it'd be a complete shock, and I don't think anybody --

SMERCONISH: I don't think --

MILLER: -- is expecting that.

SMERCONISH: -- no. I don't think he changes his mind. I don't think he changes his mind.

I think he's tried to leave the foot in the door so that, if there's a -- look. He's leaving with a gun to his head, which was set by female Democratic colleagues in the Senate. I don't think he's leaving of his own volition. This is a guy who in that statement, acknowledged no wrongdoing.

And to the extent that your governor --


MILLER: I disagree.

SMERCONISH: -- is quickly going to make an appointment known -- I'll just finish this thought -- it's because your governor wants to slam that door shut, because your governor is not on board with Sen. Franken.

You get the floor.

MILLER: No, no, no. Governor -- no. Gov. Dayton is proceeding because he is taking Sen. Franken at his word, as most people are -- you being the exception. Gov. Dayton doesn't want to leave Minnesota unrepresented in the United States Senate.

He's also aware that whoever he's going to appoint needs a few weeks to, you know, get to Washington, and get prepared. Everybody in the political class here in Minnesota I think is acting like Sen. Franken meant what he said, and as I said to you yesterday on "NEW DAY," I take Sen. Franken at his word.

I hear what you're saying. His reluctance is obvious. It's clear that he does not want to be leaving, and that he feels, in some ways, maneuvered into leaving.

But he's --


MILLER: -- a grown man, and he got on the floor of the U.S. Senate, and he made this decision, and he expressed that decision. And I just simply think it's kind of absurd to think that on Wednesday --



MILLER: -- he's going to say, you know what? I've thought --

SMERCONISH: -- I didn't say that --

MILLER: -- about this, Roy Moore won --

SMERCONISH: -- I didn't say that.

MILLER: -- and now, I'm not going to do it.

SMERCONISH: -- I did not say that.

MILLER: Well, it sounds like that's what you're saying.

SMERCONISH: That's not my theory. No, not at all. I couldn't be more crystal clear.

MILLER: Well, what is your theory?

SMERCONISH: I think you're the only one hearing it that way.

MILLER: Well (ph) -- what? No.

SMERCONISH: So let me ask you --


MILLER: No, I don't think so.

SMERCONISH: -- my original question --

MILLER: I'm confused about your theory.

SMERCONISH: -- one more time. My question --


SMERCONISH: -- is, this is a guy --

MILLER: Let's hear it (ph).

SMERCONISH: -- who wants to keep his job.

So let me ask you the very first question I asked, which is this. Why did --


SMERCONISH: -- he say, I'll leave in a couple of weeks, if it's not his angle to leave his foot in the door? Why a couple of weeks?

MILLER: You are correct that Congressman Franks resigned and left.

I think Sen. Franken is going to wrap up his business in Washington by the end of the year, and I think that that's the timeline that he's given Gov. Mark Dayton to name somebody, and have that person get prepared to step in.

That -- that's what -- I don't think there's anything underlying the, "I'll do this in a couple weeks" other than, it's a timeline that allows a replacement to get settled, and Sen. Franken to pack things up and leave Washington.

I don't hear anything --


SMERCONISH: Yesterday, a guy in the House of Representatives --

MILLER: -- you know, unusual or nefarious in that.

SMERCONISH: -- said he's resigning, and he did it the conventional way.

He -- I'm not saying nefarious. There was no acknowledgment of wrongdoing, and a couple of weeks. And in combination with Tuesday's election, and the way in which he was forced to walk the plank, mine is only analysis that he'd like to stay, and he's hoping that there will be requests made that he can do so.

Hey, thank you so much for being here. I appreciate your --


MILLER: But it (ph) --

SMERCONISH: -- point of view, even if I disagree with it.

MILLER: -- it (ph) --

SMERCONISH: Thank you.

MILLER: -- (LAUGHTER) and I --

SMERCONISH: Let's see what you are saying --

MILLER: -- disagree with you, thanks.

SMERCONISH: -- about this via Facebook and Twitter. What have you got?

From Facebook: "Michael, you are absolutely correct" -- really, I'm not crazy? -- "and I think it is genius of Franken to do it this way. It is the only thing that makes sense. Really, why should Franken leave if Moore gets seated?"

Nathalie, I think that's what's going through his mind. There's no other explanation. If you're -- the guy yesterday, Franks, who's leaving the House of Representative -- what did he do? I'm out of


here, and, boom, he's, you know, gone like the wind. That's not what Sen. Franken did.

I'm not endorsing it, I'm not criticizing it; I'm analyzing it. He'd like to stay, and he feels like he's been forced out the door -- "maneuvered," to quote my guest.

Up ahead, what harm comes when the FBI's reputation is subject to the political divide? The president on the attack against the Bureau after the demotion of the agent who led the investigation into Hillary Clinton's private e-mail server, and had been the FBI's lead investigator in the Mueller probe.



TRUMP: This is a rigged -- this is a rigged system. This is a sick system from the inside.


(COMMERCIAL BREAK) [09:30:02] SMERCONISH: You know, such has been the reputation of the Federal Bureau of Investigation that the mere threat of there being a federal investigation has itself quelled unrest and restored order.

But those days might be over. This week, we learned troubling facts about FBI agent Peter Strzok who led the FBI investigation into Hillary Clinton's private email server and who was for a time a lead investigator in the Mueller probe.

Strzok was revealed to have sent anti-Trump texts to his mistress. He also changed the wording in then FBI Director James Comey's criticism of Clinton's e-mail from grossly negligent to extremely careless.

That caused President Trump to then tweet about the Strzok story, suggesting both the Flynn and Clinton investigations been tainted by bias.

"After years of Comey with the phony and dishonest Clinton investigation and more running the FBI, it's in reputation is in tatters. Worst in history. But fear not, we will bring it back to greatness."

Here's another report. "Anti-Trump FBI agent led Clinton email probe. Now, it all starts to make sense"

The Department of Justice's inspector general is already conducting an investigation of the FBI's handling of the Clinton email case.

Has the FBI's reputation been damaged? And will Peter Strzok's conduct harm the Mueller investigation? Joining me now is Tom Fuentes. You know that Tom spent 30 years in the FBI, four of them as assistant director. He was also a member of Interpol's senior committee.

And, Tom, I know that you worry about the image of the FBI and the harm that might be done in all of this to its reputation. Explain.

TOM FUENTES, CNN NATIONAL SECURITY AND LAW ENFORCEMENT ANALYST: Well, Michael, when the president puts out a tweet referring to the reputation of the FBI in tatters, that's not just bad PR for the organization.

And when he puts out a tweet about some movie star, that's fine. That's innocuous. But these kind of comments about the FBI can be out and out dangerous.

During my experience running the FBI's organized crime program, my last five years in the bureau running its international program, and as you mentioned, on the executive committee of Interpol, I saw firsthand all the time where the bureau's reputation helped in serious cases, whether it was terrorism, organized crime, financial crimes because people trusted the FBI. They trusted it to be honest. They trusted it to be thorough and efficient and effective.

You mentioned unrest. That's exactly true. Cases like Ferguson, Baltimore, Charlotte, when there's rioting going on, when buildings are 2being set on fire and police officers are being barraged with rocks and bottles, what quells the riot in the community is the knowledge that the FBI is open to civil rights investigation and they are on their way to investigate what started from normally a police officer involved shooting of a member of the minority communities.

So, these situations matter that the FBI has the highest regard from the members of the American public and worldwide from our partners that help us everywhere on all of these cases, not just terrorism, but other major criminal events.

SMERCONISH: OK. I totally get that. And I understand based on your analysis how therefore the president's criticism of the FBI might impact the very granular nature of the FBI's mission.

But that criticism also applies, I imagine, to FBI agents Strzok because by texting a paramour in criticism of Donald Trump while he's investigating Donald Trump, boy, that blows the reputation of that investigation to some extent, doesn't it?

FUENTES: Absolutely. It absolutely does. And I think the shame of this whole thing is that the whole FBI is taking the blame for where I think the blame lies is with Director Comey and his immediate staff around him.

The Deputy Director Andrew McCabe should have recused himself when his wife took hundreds of thousands of dollars for her Democratic political campaign in the State of Virginia.

And Strzok unquestionably should not have been involved in this investigation. And if he was, not be expressing any public opinions like this that he was anti-Trump or pro-Hillary Clinton or any of that type of bias.

We don't want biased investigators. And from my experience, the biases have not affected many, many investigations. They're conducted with integrity and honesty and thoroughness and it really makes no difference which party is in power.

Ten years ago, we had the FBI basically taking on Scooter Libby, working for the vice president of the United States, while the Republicans were in power, during the Bush administration.

So, this FBI - and I've had questions about, well, the FBI is pro- Republican. No, they put Republicans in prison. They convicted Scooter Libby. Convicted several other, like the lobbyist Abramoff. So, these kind of investigations are not conducted with bias.

They're conducted strongly. And in this situation where bias is shown, it should be severely dealt with.

[09:35:11] Now, on the other side, during the Director Wray testimony, he was repeatedly asked about what's going on with - what happened in the Clinton case, what happened with agent Strzok being put in these positions to rewrite speeches and conduct interviews of key subjects and all of that, that's true. But, again, this is a circle right around Director Comey and that's

where the responsibility I think lies. He was also asked questions about why did Special Counsel Mueller pick this person or that person. Well, those questions belong directed at either Comey or Director Mueller.

And they're all the subject of IG - not all of them, but at least the - during the Clinton email investigations, those are the subject of inspector general investigations, which the FBI and Department of Justice have no control over.

So, the FBI would like those investigations conducted quickly and make the recommendations of discipline, if it's appropriate, and Director Wray said he would meet out discipline where it's shown to be appropriate in those cases, but they need to be handled and handled quickly.

And again, you can go back to other cases where there were serious allegations made against an FBI agent who acted inappropriately. And that person either went to jail or was immediately fired or discipline was meted out.

So, I am not covering for the FBI and I'm not covering for Strzok. If Strzok is wrong -

SMERCONISH: Tom, I don't think you covered for anybody. I wanted the no-BS dispassionate analysis and you gave it to me. Tom Fuentes, thank you for that.

FUENTES: Thank you, Michael.

SMERCONISH: Let me check in on your Facebook and Twitter comments. Katherine, what do we have? From tweets (ph), "Any agency can be compromised by a few. Trump is absolutely right."

Hey, Jay, nobody here is defending - not Tom Fuentes, and certainly not yours truly, an FBI agent involved in an investigation criticizing to his mistress the subject of the probe, that's outrageous. And I get Tom's worry about the harm to the reputation of the FBI that could flow from all of this. It's terrible. And it will come back to haunt us.

One more quickly, if I've got time. Smerconish, "The fact that Trump would throw our FBI under the bus not only shows his guilt, but also that he's unpatriotic."

Sophia, I thought Tom makes - I mean, look, if you're going to be a snitch for the FBI, you're doing that because you respect the FBI and you feel like you'll be safe in the hands of the FBI. And comments about the FBI's reputation being in tatters, that doesn't help any of us as Americans.

By the same token, an FBI agent who speaks out of turn while he's doing an investigation needs to go.

Still to come, and you can tweet your thoughts in advance on this one, with the revelations that so many famed creative people are accused of sexual misconduct, should we never again watch or enjoy their work.

And there was a lot of outrage over the acquittal of the undocumented immigrant who discharged a gun that killed an innocent woman, Kate Steinle. But I'm about to talk to one of the alternate jurors in the case who says justice was served.



[09:42:40] DONALD TRUMP, PRESIDENT OF THE UNITED STATES: You saw what happened with beautiful Kate Steinle. This guy, he said he didn't know it was a gun. Oh, he didn't know.

That was a total miscarriage of justice.


SMERCONISH: So, that was the president just last night. Is he right that the acquittal in the Kate Steinle case was a miscarriage of justice?

On the surface, it sounds absolutely outrageous. Jose Ines Garcia Zarate, an undocumented immigrant, who was deported five times, caused a gun to be fired and the bullet killed an innocent woman Kate Steinle, she was walking nearby with her father.

Yet last week, a jury exonerated Zarate of murder charges leading to outcry from the president and many on the right. But what's the view from the jury box.

My next guest was an alternate juror on the case. He says the jury made the right call, given the case, the way it was presented.

Joining me now is Phil Van Stockum. He's a mechanical engineer who earned a PhD from Stanford. He wrote this piece for "POLITICO". "I saw the Kate Steinle murder trial up close. The jury didn't botch it."

Phil, you didn't get to vote, but you saw the evidence. You heard the jury instructions. And you chatted with your colleagues when it was all over? True?


SMERCONISH: Let me tick through some of the aspects of this case. First of all, we often hear that this guy was deported five times, but that's not what this was about. That wasn't even in the purview of the jury, correct?

VAN STOCKUM: That's correct. We were told at the beginning of the trial by the judge that immigration was not an issue in this trial and did not come up as part of the evidence during the five weeks that we were there.

SMERCONISH: She was killed by a ricochet. What does that tell us? VAN STOCKUM: I think that says something about the state of mind of the defendant. It was actually a very bad ricochet. It hit the ground 12 in front of them and then traveled another 78 feet to Kate Steinle. So, I think that's good evidence that he did not intend to kill her and maybe didn't intend to kill anyone.

SMERCONISH: Was the gun his?


SMERCONISH: So, how did he then happen upon that weapon and what is your conclusion as to how the critical events transpired?

VAN STOCKUM: The defense claims that he found that weapon at his seat on the pier, possibly wrapped in some kind of fabric, picked it up out of curiosity and accidentally caused it to fire.

I'm not sure quite what I think. Unfortunately, in this case, we just don't have enough evidence about that to really know what happened. And we have a presumption of innocence. So, the jury has to go with a version of the events that's consistent with the evidence that is in favor of the defendant in that case.

[09:45:13] SMERCONISH: He was charged with first-degree murder and the lesser charge which included offenses of second-degree murder and involuntary manslaughter. Let's focus only on the murder charges. Why did the jury believe the criteria were not met?

VAN STOCKUM: The murder charges require a specific type of intent. For first degree, it must be deliberate and premeditated. For second degree murder, he must have had malice aforethought, which means he intentionally did something, which was either extremely dangerous or intended to kill someone.

And because of the ricochet and a few other pieces of evidence and a general lack of evidence that showed his state of mind, including direct witnesses of him holding the gun or shooting the gun, it's very hard to prove beyond a reasonable doubt that he had that intent.

SMERCONISH: OK. So, lacking intent, the jury could not conclude on the murder charges. But, of course, the manslaughter conviction was not successful either. Why not?

VAN STOCKUM: I think that's surprising to many people. Manslaughter does seem like an appropriate charge for this case. The jury was unable to convict on manslaughter because the prosecution chose to include the crime of brandishing a weapon as a precursor, and a requirement for that charge.

They had to choose some crime that had been committed during the act that caused death, and they chose brandishing of the weapon. No evidence of brandishing was presented during the trial. So, I don't see how the jury could have found him guilty beyond a reasonable doubt of that part of that crime. therefore, not be able to convict him on the manslaughter charge. SMERCONISH: What you're describing in the aggregate is a methodical process whereby the jurors went through, as they're supposed to do, as they are charged with doing, each of the elements of the crimes with which this guy was charged and seeing whether they're met.

They weren't met with regard to murder because there was no intent that was offered. And now, with regard to manslaughter, you're saying that, during the course of the closing arguments, I think you hear the word brandishing for the first time and that wasn't proven as an element of manslaughter.

SMERCONISH: That's right. And I should point out that the jury's job is not to do the thing that they think is right. Their job is to rule according to the law as it's given to them. And as it was given to them, I think that they made the right call.

SMERCONISH: So, final comment. You know that this gets cast in the, oh, those folks in San Francisco, all those liberals, they let this guy walk and he murdered Kate Steinle. And it sounds outrageous. Your response is what?

VAN STOCKUM: My response is that I hope anyone in the country would've acted the way that these jurors did. I think they did an excellent job of setting aside any biases or preconceived notions that they had and just ruled according to the evidence and the law as it was presented in the courtroom.

SMERCONISH: And, Phil, I recommend that people read what you published via "POLITICO". In fact, I'll tweet it out during the upcoming break because I think that it lays it out in more time than we have to dedicate to it. But thank you for being here.

VAN STOCKUM: Thanks for having me.

SMERCONISH: Let's check in on Facebook - thank you - Facebook and Twitter. Look, man, it's not easy. You get a jury notice. These people go and they stand up and they fulfill their responsibility. And then, the outsiders all glom on, like, oh, you blew it.

Deeba, "I hate to say it, but in this case the prosecutor really messed up in this case. He should have tried for manslaughter." Well, Deeba, manslaughter was a possibility, but they didn't meet the element of a crime being committed in the act that caused the death by saying that that crime was brandishing.

I have looked at this and I come to the same conclusion. The way in which it was prosecuted is subject, I think, to reasonable criticism, but you don't hear anybody say that. You know why? Because that's not a good sound bite.

Up next - and you can tweet me your thoughts on this baby in advance. Now that we're having this global conversation about sexual harassment and assault, is it OK for all of us to enjoy the work of those accused? Can I still watch "House of Cards"? Can I listen to the Metropolitan Opera? Can I go back and reread "Game Change"?


[09:53:31] SMERCONISH: In this era of reckoning with regard to sexual impropriety and sexual harassment, what is our responsibility as consumers.

Every day, the arts sections are filled with new allegations of bad behavior of cultural icons, from actor Dustin Hoffman allegedly groping a Broadway costar to the Metropolitan Opera conductor James Levine's alleged relationship with an underage boy.

If I listen to an old recording of the Met or I rewatch Tootsie, am I complicit? In other words, can we as consumers continue to enjoy the fruits of the labor of those who are now under a cloud of suspicion?

I know these questions are not new ones. We've lived through troubling news about public figures like Michael Jackson, director Roman Polanski, Woody Allen. The painter Pablo Picasso was notorious.

But the recent ongoing cavalcade of exposes has the potential to take a pretty wide spectrum of artistic endeavor. So, I find myself wrestling with so many questions. Can I still enjoy "Transparent" when we're not really sure about the accusations concerning Jeffrey Tambor?

Am I damned if I listen to a Bill O'Reilly podcast, if I want to catch up on an old episode of Kevin Spacey in House of Cards or Louis C.K.'s standup concerts? Can I no longer rely on Mark Halperin's book "Game Change" about the 2008 election?

If we say these people should no longer be allowed to work in their respective fields, would we be hypocritical to still enjoy their past work without any twinge of conscience?

[09:55:03] And this list keeps on getting longer and longer. Can I still watch "Entourage" reruns, enjoy "Prairie Home Companion", watch "Arrow", "Supergirl" or "The Flash"? What about Pixar movies? What about all the Weinstein movies?

People in the public eye tend to be larger-than-life by definition. But when we hear the sordid details, what does it mean for our past relationships to their work? I'm having trouble making up my mind. I polled my Sirius XM Radio audience on my website. More than 2,200 people voted last I checked.

As a consumer, if you approve of the professional termination of an individual on sexual misconduct charges, should you no longer watch or listen to their past work?

Still listening and watching, 68 percent. No longer listening or watching, 32 percent. Or that's what they say. Your thoughts welcome. We'll keep this conversation going on my Facebook page.

Quickly, Katherine, hit me with one or two if you can. "@smerconish #GuiltyPleasures How can you watch a performance objectively without thinking of that perp's actions?"

Well, Buck, you might be thinking of it, but still watching.

I'll see you next week.