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The Late Friday Night Firing of Andrew McCabe Was Analyzed; Michael Isikoff Discussed Donald Trump's Relationship with Vladimir Putin both Personally and Via Their Business Contacts; Michael Galloway Shares His Opinions About the Importance of Busting Up Large Tech Companies Such as Amazon, Facebook, Google, and Apple, and the Positive Impact That Would Have on the Economy; George Freeman Discusses the Recent "60 Minutes" Interview by Anderson Cooper with Porn Star Stormy Daniels About Her Alleged Affair With Donald Trump and the Legalities Surrounding Her Non-Disclosure Agreement. Aired 9- 10a ET

Aired March 17, 2018 - 09:00   ET


[09:00:00] MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Former FBI Deputy Director Andrew McCabe fired Friday night at 10:00 p.m. A little more than 24 hours shy of his retirement. Was this justified or political revenge? Plus Russia continues to meddle in our news cycle, poisoning a former spy in the U.K., infiltrating our power grid, being sanctioned for the election hack. And yet when asked the White House still not sure if they are friend or foe. Now with special counsel Mueller subpoenaing Trump organization files, is something going to give? I'll ask Michael Isikoff, he is co-author of "Russia Roulette," the number one book in the nation. And toys are no longer us. The latest American retail giant to shutter its stores. And who is to blame?


GEOFFREY THE GIRAFFE, TOYS R US MASCOT: All you bitches bought toys on Amazon. Now I'm out of a job.


SMERCONISH: But Amazon is just one of the booming big tech companies along with Apple, Facebook and Google. You'll meet the man who advocates breaking them up like Ma Bell or the railroads.

And President Trump's lawyers taking new steps to keep adult film actress Stormy Daniels silent saying she owes $ 20 million for violating here NDA. But can they prevent "60 Minutes" from airing her interview?

But first, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe late Friday less than two days shy of his retirement. This stems from an internal review conducted by the Inspector General, Michael Horowitz, which hasn't been made public. The report said to have found that McCabe misled investigators about his role directing other FBI officials to speak to media about the investigation into the Clinton e-mails and Clinton Foundation. Attorney Jeff sessions' statement read in part, both the OIG and FBI OPR reports concluded that Mr. McCabe made an unauthorized disclosure to the news media and lacked candor, including under oath, on multiple occasions. For his part, McCabe claimed I'm a statement quote, I'm being singled out and treated this way because of the role that I played, the actions I took, and events I witnessed in the aftermath of firing of James Comey.

Shortly after the announcement President Trump tweeted, Andrew McCabe fired, a great day for the hard working men and women of the FBI, a great day for democracy. Sanctimonious James Comey was his boss and made McCabe look like a choir boy. He knew all about the lies. Joining me now is Jonathan Turley. He's a Constitutional Law Professor at George Washington University. Professor, this is one of those issues that evidences our partisan divide. You know on the right today McCabe's firing is being celebrated, on the left it is being condemned. I need you to help me be an honest broker. Was it justified this firing?

JONATHAN TURLEY, LAWYER, LEGAL SCHOLAR, WRITER, AND LEGAL ANALYST: Well, what is justified in the sense that these were career officials at the office on of professional responsibility that made this recommendation which is exceedingly rare. In fact, it is unprecedented for someone in this position. These are not political appointees. The OPR, quite frankly, is not viewed as a particularly aggressive office, so all of that makes this a relatively rare sanction coming from career officers. They clearly concluded that McCabe misled them, and that he misled them on one of the core issues they were investigating, not a collateral issue.

SMERCONISH: I remember from my days of service in the federal government it was on the watch of Bush 41, Papa Bush, the Inspector General's Office was at an arm's length away. In my case, I was an appointee running HUD in five states. And I had nothing to do with the Inspector General on a day to day basis. Frankly, you didn't want anything to do with the Inspector General's Office. I want to clear up any misperception in thinking that Jeff Sessions or the President could exert influence over the IG, because they can't.

TURLEY: Right, and in fact everyone that I know of speaks highly of Horowitz, that is he is viewed as completely apolitical and this office, as you note, is insulated like a Sherman tank from any type of outside forces. What is fascinating about this whole -- the way in has unfolded is not its outcome. I said when we first heard of the report and the recommendation that I thought it was a given in a he would be fired. I would be very surprising for Sessions to turn down this type of rare recommendation from the career staff. After all he followed the recommendation of the career staff to recues himself and I think rightly so.

[09:05:00] What is going to create an issue going forward is whether there will be a criminal referral. Michael Flynn was indicted for making a false statement to investigators. Now, it is true that they were looking at him for other crimes as well. But there will be some that will argue why would you indict Michael Flynn but an Deputy FBI Director is just worried about his pension, not prison. SMERCONISH: So which is the greater infraction? And I think you're

getting to this now. If in fact it occurred the way the Inspector General says it took place, which Mr. McCabe I understand disputes, but insofar as he, a, authorized members of the FBI to speak to the "Wall Street Journal," then, b, if he were untruthful about it under oath, for which of those does he face more exposure?

TURLEY: It's the alleged false statement. As you know, there is a great deal of background discussion that occurs with reporters from the FBI and the DOJ. It is always the misrepresentation. Keep in mind with Michael Flynn, his meeting with the Russians wasn't in any way illegal or unprecedented. It was failing to tell them about sanctions being discussed at the meeting that led to his charge. But this could easily spin further out of control. There was one line in McCabe's statement last night that I immediately flagged because he said that he had authority to do this and he conferred with the director.

The director at that time was James Comey. Now the problem there is that James Comey said under oath that he never leaked information and never approved a leak. So if the Inspector General believes this was a leak to the media, it raises serious questions about Comey's previous testimony and could get him into serious trouble.

SMERCONISH: And of course McCabe's response to all of this is that this is an effort to discredit him because of testimony he might be able to provide relative to the President and obstruction of justice.

TURLEY: That's right. And his statement was very, very strong. I mean, he is clearly feeling liberated from his previous role. He's able to speak as much as he would like. He certainly paid for that right with his pension. And that is a very sad thing. I thought this whole thing was sad. This is a man that had a really stellar career in the FBI. And I find all of this, in fact all of these controversies, to be deeply sad. But that doesn't excuse what he did. More importantly, even his

statement is going to trigger another round of inquiries as to who actually knew about this and was this a leak to the media. Comey has already been accused, as you know, of leaking information through a friend at Columbia Law School. After he left he removed material from the FBI that the FBI material that the FBI has indicated, I think correctly so, that was FBI material, not subject to being removed from the bureau. Some of that appears to be classified. So Comey, himself, is not out of the woods on this and McCabe's statement doesn't help his position any.

SMERCONISH: Quick final question. What do you make of the timing 10:00 p.m. on a Friday night?

TURLEY: Yeah, I really regretted that. As you know, often people release things late on Firday nights. I hate that - that approach. They try to bury the news cycle. I thought it was unfair to McCabe if they were going to do this, waiting until you go right up to the line of his pension was, I thought, a bit rough. But you know what? We're living in rough times and I'm not sure doing it 24 hours before would materially improve the situation emotionally for McCabe. SMERCONISH: Yes, but it did seem a bit vindictive, 10 p.m. on a

Friday night. Professor Turley, thank you, I appreciate your being here.

TURLEY: Thanks, Michael.

SMERCONISH: What are your thoughts? Tweet me @smerconish, go to my Facebook page. I'll read some responses throughout the program. What do we have Catherine?

He is draining the swamp. Campaign promise I do believe. Well then again, as I say, this is "A Tale of Two Cities" to those supportive of the President and conservative, this is a day of celebration; and to those on the left, who see it as being part and parcel of a cover up, of obstruction of justice, they see it entirely different.

Do we have one more? I think we've got a tweet as well. Smerconish, isn't the firing of Andrew McCabe more of a threat to all career government employees? Complete loyalty to Trump and Trump alone or on you will pay the consequences. Thank you for presenting that tweet because in contrast to the Facebook, you see the differing ways people are interpreting this. My response to that individual would be to say the Inspector General's office conducted an investigation. They said that, a, he informed the media when he shouldn't have and that, b, he was untruthful about it. So what do you expect then to happen?

[09:10:00] Up ahead, a week full of Russia news. They've expel 23 U.K. diplomats after condemnation for poisoning a spy. We implemented sanctions for the election meddle. We learned of a threat to our power plants and Robert Mueller has subpoenaed the Trump organization's financials. Good thing we've got Michael Isikoff here to break it all down.


SMERCONISH: Russia has expelled 23 British diplomats after being blamed for the recent nerve gas poisoning of a former spy in the U.K. just the latest bizarre turn in a week where the Russian meddle in our election continued to dominate headlines. America finally announced some sanctions against Russia for the meddle and a Russian threat to our power grid was revealed.

Plus Special Counsel Robert Mueller has subpoenaed the Trump organization to turn over documents including some related to Russia. The implication being that Mueller's inquiry is widening to examine the potential role of foreign money in President Trump's political activities. Joining me now, Michael Isikoff who is co-author with David Corn of what is the number one best seller in the country, "Russian Roulette: The Inside Story of Putin's War on America and the Election of Donald Trump."

[09:15:00] Michael, one of the many takeaways as I read your book thus far is that there is this recurring cast of characters, Russia nationals, who have been around President Trump not just recently in the context of the campaign, I'm thinking of the folks at the Trump Tower meeting or meetings, but going back three decades. MICHAEL ISIKOFF, INVESTIGATIVE JOURNALIST AND AUTHOR: Right. Well,

look, there is a three decade history of Trump trying to do business in Russia. But what is significant and what I think helps explain Mueller's subpoena for these Trump organization records is you take a look at that notorious Trump Tower meeting, the one where the Trump campaign is offered derogatory information in the form of official sensitive documents from the Russian government. Who set up the meeting? It is Rob Goldstone, the publicist who sends the e-mails to Donald Trump Jr., but he is acting on behalf of the Agalarovs. Aras Agalarov, the billionaire Russian oligarch known as Putin's builder, his son, Emin, the aspiring pop singer.

And then you -- we know these are the people Trump was doing business with in Moscow in 2013. They were his partners, Aras Agalarov, in the Miss Universe Pageant. They formed the agreement to build a Trump Tower Moscow project in Russia in 2013. Donald Trump, Jr. is put in charge of the project. Ivanka Trump flies to Moscow to scout potential sites for the project with Emin Agalarov.

If you want to understand that Trump Tower meeting, you have to understand these relationships between Trump, himself personally, and the people who set up the meeting. So it is perfectly logical and makes sense that Mueller would want to subpoena the records to see everything that the Trump organization has about its relationship with the Agalarovs.

SMERCONISH: As I read the book, I said to myself, I'm very dubious of the idea that that infamous meeting that could have take place at the Trump Tower, and you talk about a second meeting, but that that infamous meeting could have taken place without the now President having been notified. Because he knew the personalities in that room and it just sort of, it's strange credulity to think that Don, Jr. or Jared Kushner, or Manafort, or someone wouldn't have said hey, we just had this meeting or we're about to have this meeting.

ISIKOFF: Right, and as you point out, we disclose in the book an earlier Trump Tower meeting that took place with Trump himself and Emin Agalarov and Rob Goldstone, the key players in the later meeting that's January 2015. Agalarov and Goldstone go to Trump Tower and meet with Trump. They're welcomed by him there and Trump indicates that - he tells Agalarov about his plans to run for President. So when you see -- when you connect the dots and you see the personal relationships there, you know, it obviously raises the sort of questions that you just raised.

SMERCONISH: Michael, for 30 years now President Trump wanted to build in Moscow, never got it done. When did he come the closest and why did the deal fall apart?

ISIKOFF: Well, there is that first Trump Tower project which I've just been talking about with the Agalarovs and I mentioned in February of 2014 Ivanka goes to Moscow to look for properties. What is happening at that time? Putin is annexing Crimea; he's intervening in Ukraine, that is followed very quickly by sanctions imposed by the United States - by the Obama Administration and the European union, and as we document in the book, this is what leads to the collapse of the project, one of the entities that was going to finance the project, Sberbank, a majority Russian government-owned financial institution was targeted in those sanctions.

Rob Goldstone is quoted in the book as saying that that is what led to the collapse of the project. So it came close then, but then he tries again through another associate, a former felon named Felix Sater, and they set up another deal for -- and a letter of intent once again is signed for a Trump Tower project in Moscow. This is in October 2015, while Trump is running for President. The public knew nothing about it but Trump, at that very moment, was pursuing another deal/project in Russia. That would have required Putin's approval. So when you see that, you start to understand a bit Trump's strange affinity for Putin and his flattering public comments about Putin. He needed Putin's approval for the business deal he was trying to accomplish.

SMERCONISH: And as I think you've made clear, we showed that headline from the Friday "Times" about Mueller now seeking documents, via subpoena power, from the Trump organization.


SMERCONISH: You think what you offer in this book is an explanation of what Mueller is looking for. What is he looking for?

ISIKOFF: Right, well like I said before, I think what he is looking for is to understand the relationships between Trump and the key players in this. And you know, the only surprise to me, Michael, is why it has taken him so long to issue the subpoena. Because it seems as we layout in the book, pretty basic to understanding what was going on in that Trump tower meeting and what was likely going on during the campaign. Now, the Trump organization has said it was voluntarily cooperating with Trump turning over - with Mueller turning over documents that had been requested. If that is the case, you have to wonder why the subpoena would have been issued unless Mueller's people saw indications or signs that not everything was being turned over.

SMERCONISH: That's a good observation. Why did they need to use the subpoena power? Michael Isikoff, thank you, I appreciate you being here.

ISIKOFF: Thank you.

SMERCONISH: What are folks saying via twitter and Facebook? This comes from Facebook I think. I'd rather Trump goes down because of Russia than Stormy. I think there is a play on words in there somewhere Olivia.

Still to come, Trump's lawyers now say adult film actress Stormy Daniels owes him $20 million for violating her NDA, but can they prevent her "60 Minutes" interview from airing? And this week Toys "R" Us became the latest retail giant to shutter its stores. Meet the professor who says that for the good of American business, we have to break up Amazon, Apple, Facebook and Google.

(BEGIN VIDEO) JIMMY KIMMEL, TELEVISION HOST: I'll always remenber Toys "R" Us as the store where my children had a complete and total meltdown every time we went there. I guess people don't enjoy that anymore; they buy toys online. And Amazon will not rest until every other store is an abandoned warehouse teaming with raccoons.




SMERCONISH: Opening statements are scheduled to begin on Wednesday in the Justice Department bid to stop the AT&T acquisition of Time Warner. Time Warner is, of course, the parent of CNN. Despite working here, I don't have a dog in this fight. I've not spoken to anybody within the company about the deal. A report this week noted that this is the first time in four decades that the Justice Department has sued to block a merger between companies in different lines of business.

The Justice Department argues that the deal would give AT&T the power to charge its competitors more for Time Warner's content, or to block the content entirely from the likes of Comcast, Verizon and Charter. The Justice Department opposition was announced in November. But, a lot has happened since then. CVS said it would buy Aetna; Disney said that it would buy Fox; Cigna sought to buy Express Scripts; but, there's been no Justice Department opposition to any of those deals, which begs the question of whether opposition to the AT&T-Time Warner deal is politically motivated.

After all President Trump has been a vocal critic.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: AT&T is buying Time Warner and thus CNN, a deal we will not approve in my Administration because it's too much concentration of power in the hands of too few.


SMERCONISH: But if you want to talk about too much power in the hands of too few, shouldn't we at least be asking about Amazon, Apple, Facebook and Google? In a moment an NYU Professor whose students get recruited by these giants, despite his personal view that, quote, these behemoths enjoy unfettered economic domination and hoard riches on a scale not seen since the monopolies of the gilded age.

How big are they? Consider that Amazon, with a market cap of $591 billion, is worth more to the stock market than Walmart, Costco, T.J. Maxx, Target, Ross, Best Buy, Ulta, Khol's, Nordstrom, Macy's, Bed Bath and Beyond, Sachs, Lord and Taylor, Dillard's, J. C. Penney, and Sears combined. This is a timely subject where this week brought news that Toys "R" Us will shutter or sell all of its stores in the United States and Amazon is partly to blame. This failure was certainly one of debt with which the company was saddled by its private equity investors, but of course, the next time you need "Star Wars" Legos, you'll probably go to Amazon.

The domination in our lives by big tech is unmistakable, but nobody seems particularly upset about it, certainly not members of Congress who in any other context would be raising questions. And I think I know why. We love our gadgets. Nobody is particularly eager to stand up for a cable stove pipe, but hands off my iPhone or my Amazon Prime account. Don't separate me from my Facebook friends and if God's sake don't interrupt my ability to Google anything.

But no matter how much we enjoy them, these big four are in danger of thwarting the rest of the country's economy. I want to know what you think. Go to my website at Answer today's survey question, given the market dominance of Amazon, Apple, Facebook, and Google, is it time to bust up big tech?


And now in his article, Silicon Valley's tax-avoiding, job-killing, soul-sucking machine, Scott Galloway, writes that Amazon, Apple, Facebook, and Google have an impact on our daily lives unlike any companies in human history and his provocative conclusion is, yes, big tech must be busted up. Scott Galloway is a Professor at NYU's Stern School of Business, I know when this conversation ends, the tweets will come and people will say who was that socialist you had on. Disabuse them of the notion that you are a socialist.

SCOTT GALLOWAY, CLINICAL PROFESSOR OF MARKETING AT NEW YORK UNIVERSITY STERN SCHOOL OF BUSINESS: No, I'm a full-throated capitalist. I've been an entrepreneur my whole life and have done really well owning these stocks. And I think the key to capitalism is competition, and the markets are failing. They are no longer competitive because of the dominance of these companies. But, yes, thank you for pointing out, that I am, in fact, a proud capitalist.

SMERCONISH: Are they monopolies in the conventional sense of the word, are they akin to what Ma Bell was before the breakup?

GALLOWAY: So, I would argue yes, but a monopoly in itself isn't necessarily a bad thing or an illegal thing. It is abusive monopoly, power, and I would argue a company like Google that has 92% market share. And then rather than taking you to the place that's the point of best information but to another place that they can monetize is an abusing that monopoly power. And think about this, Michael, 92% share of a sector search that now by dollar volume is greater than the entire advertising market of any country with the exception of U.S. and we'll probably blow by it in two years.

Facebook has four of the top five apps in the world and is squaring - it's going squarely on Number Five Snap and is putting it out of business. I mean you can go on and on. Amazon has 70% share of voice, probably the technology of the future, and is responsible for about a quarter of all retail growth and about half of all online sales. Yet we don't seem to be worried about the concentration of these companies.

SMERCONISH: Is the reason that we're not worried that which I said in my commentary which is we love use of the technology? I mean to your point, not even Bernie Sanders says anything about this as far as I know in the Congress.

GALLOWAY Yes, there's a deeper thing going on here and as a society I believe we know longer worship at the altar of character and kindness, but innovators and money. And we're so impressed with these kids and we read every day in old media about how awesome innovation is, but we don't talk about the reality that that there are about half as many businesses being formed today as there were 40 years ago.

There are half as many public stocks as there were just 20 years ago. Meaning small companies can't get out of the crib and big companies are being euthanized early. And what is the result of all this? Middle class wages are stagnating, and if you were to look at the rise of big tech and decline in the growth of the wages of the middle class, you would have a difficult time saying there is not a correlation. The amount of power these companies can achieve, the low cost of capital, the scale, their ability to put small companies out of business and as I said, put big companies out of business probably prematurely is having a real impact on our economy. The growth of our economy is small business two thirds, and it is never easier to be a billionaire, but harder to be a millionaire. It is tough for small companies to get out of the crib.

Facebook has technology that goes out and assesses if an app is getting traction and if it is, it immediately adopts the features into one of its own apps, and if it can't, it goes and it buys it. The markets are failing.

SMERCONISH: Professor, I pulled a graphic from your work in "Esquire" relative to Facebook and Google which says that Facebook and Google are together worth $1.3 trillion. You could merge the world's top five advertising agencies with five major media companies and still need to add five major communications companies to get only 90% of what Google and Facebook are worth together. You have similar data relative to Amazon. But you know there is a response to a lot of this. I'll just go with Amazon. Amazon loves to say, well, 4%, that is all we have. That is our only share of U.S. retail.

GALLOWAY: So 4% is a number and you're right, the one they use. But here are some other numbers. They're are about 40% of all online sales; they're about 25% of all retail growth in the U.S.; they have 70% share of voice, and get this, they have Prime or they have video distribution recurring revenue relationship with 80% of wealthy households and two-thirds of all households in the U.S. Earlier you talked about the President wanting to restrain AT&T's acquisition of Time Warner, AT&T has 120 million phone subscribers, that's the distribution.

[09:35:00] Then CNN or Time Warner has some fantastic content. Amazon has 70% distribution, 70% of homes have Prime video and they're the second largest spender in the world on original scripted content at $5 billion just behind Netflix. But we need AT&T to sell adult swim. One of two things is happening here, either the call to restrain AT&T's acquisition of Time Warner is insane or these companies should have been broken up a decade ago. Google has the largest video network in the world called YouTube is pre-installed on 2 billion android devices. So the notion that company needs to - or this merger needs to be restrained and these companies with five or ten times the distribution and content don't need to be broken up, seems irrational.

SMERCONISH: A final quick thought, the most powerful person in the world according to you, it is not Putin, it's not Trump, who is it and why?

GALLOWAY: Oh, hands down it is Mark Zuckerberg who has as assembled a community more vast than Christianity -- 2.2 billion people -- and has license to take the mood up or down. He is not elected, cannot be removed from office, and last year tried to get his shareholders to agree to a three-class share holder system where he could end up owning none of the company and still control it. Facebook is the most successful thing in the history of mankind. It has been weaponized by foreign actors. If CNN had been weaponized by Russia, Michael, my sense is we would have fined your network or advertisers would have run from it, but advertisers can't run from Facebook because two thirds of all digital marketing is controlled by one of two companies. The markets are failing, Michael. It is time to break these guys up.

SMERCONISH: It is a really provocative subject. Thank you, professor, I really appreciate it. We'll see you how the poll goes. Go to, answer today's survey question on this issue. Given the market dominance of Amazon, Apple, Facebook and Google, do you agree with the professor that it is time to bust up big tech? Let's see what people are saying in my social media accounts, twitter and Facebook, what do we have?

OK, knock it off, bust up big tech, look at all the choices people have for shopping these days. You must own a bricks and mortar store. Hey Vickie, the last thing I'd want to own today would be a bricks and mortar store.

Up next, on Friday President Trump's attorneys filed to move Stormy Daniels' lawsuit against him to federal court and claims she owes $20 million for violating her nondisclosure agreement. But, can they prevent "60 Minutes" from airing Anderson Cooper's interview with Daniels that's already been taped?



SMERCONISH: Friday attorneys defending President Donald Trump filed to move the lawsuit against him by adult film actress Stormy Daniels to federal court and are claiming that she could owe as much as $20 million for violating a non-disclosure agreement. You'll recall Daniels accepted a $130,000 payment shortly before Election Day 2016 in exchange for her promise to remain silent about the alleged affair which Trump denies. Meanwhile, Anderson Cooper has taped a "60 Minutes" interview with Daniels due to air next Sunday. Do Trump's lawyers have any means to prevent it from airing? Joining me now is George Freeman the Executive Director of the Media Law Resource Center, he was previously the "New York Times" in-house lawyer for 30 years. Counselor, can they stop "60 Minutes" from airing that tape? GEORGE FREEMAN, EXECUTIVE DIRECTOR OF THE MEDIA LAW RESOURCE CENTER:

No, there's really no way they can. I think it is laughable. Number one, if CBS was worried about it, they would have put this interview on tomorrow rather than waiting a week, putting it back a week. So I don't think they have any real fears. But secondly and more importantly, the First Amendment directly says you can't do that, it says government can't abridge speech. So that goes directly to what Trump and his lawyers are trying to do here which is stop speech.

And the First Amendment says you can't do that and the Supreme Court in the Pentagon Papers case of course said that you can only do it, maybe, if the publication would result surely in direct, immediate, and irreparable damage to the nation or its people. And Stormy Daniels talking about her sexcapade with President Trump hardly meets that standard. So I don't see any way that the Trump folks can really stop this interview from being aired.

SMERCONISH: Do you think that CBS has any exposure - everything is a double entendre in this case. Any exposure from a legal standpoint insofar as they put her on the air and she is violating the NDA?

FREEMAN: No, I think they have to be careful about exposure particularly when it comes to a potential claim of invasion of privacy. But in terms of the NDA, CBS isn't a party to the NDA. It is a question of whether Trump is a party because he didn't sign the document. But putting that aside, I don't think they can get to CBS because CBS is not part of it. There is a claim called tortious interference with contract, but that really isn't apt in this setting and I don't think that would be successful. So the answer I think is no, the NDA shouldn't really bar CBS from airing this or subject them to liability.

SMERCONISH: Michael Avenatti who represents Stormy Daniels was here with me last weekend. I asked him the following question. Let's watch.


[09:45:00] SMERCONISH: Has anyone offered to pony up the million dollars to protect her and say here, I'm good for it, go tell your story?

MICHAEL AVENATTI, ATTORNEY FOR STORMY DANIELS: At least ten individuals in the last three days alone.


SMERCONISH: George Freeman, what do you make of that? He says that at least ten folks stand there checkbook ready to protect her if in fact she is held accountable.

FREEMAN: Well, CBS shouldn't be one of those. And CBS shouldn't be indemnifying her because then they would look like they are in cahoots and that would hurt them in kind of the claim that we were talking about. But I mean she's obviously made a marketing decision that the $130,000 is peanuts compared to what she could make going forward. SMERCONISH: So the President has filed through a new lawyer, same

lawyer who took down Gawker, by the way, on behalf of Hulk Hogan, a joinder of defendant of Donald J. Trump in notice of removal of action by defendant essential consultants, here's what I think is going on, he is trying to get the federal court involved so as to make sure this case stays in arbitration. There was one line that jumped off the page at me, Mr. Trump intends to pursue his rights to the fullest extent permitted by law. What will be interesting to see is whether he can stay sufficiently removed from that underlying agreement insofar as maybe he says hey, Michael Cohen negotiated that, I guess, I had nothing to do with it, but it is a valid agreement nonetheless. Is that the needle he is trying to thread?

FREEMAN: I think it is and I think he's going to be unsuccessful. He stepped into this now more than he had heretofore. The notion that he has nothing to do with the $130,000 is getting sillier and sillier as go along.

I did want to go back to the question you asked before about exposure. I do think that they have to be careful, CBS has to be careful in terms of what she says and whether it subjects them to an invasion of privacy suit, not dissimilar from that of Hulk Hogan's against Gawker.

You know, for example, talking about specifics about the sexual act could be viewed as an invasion of privacy notwithstanding it involves the President of the United States. He is entitled to privacy as well. On the other hand, I should point out that if for example she has to say something about his penis size in a way -- and I'm sorry early in the morning to talk about this, but in a way he's opened the door to that because he's bragged about it as I recall in the debate with Marco Rubio. So to some degree he's opened a door for a lot of this discussion. Nonetheless, I think CBS has to vet the story carefully to be careful and, as you point out, the lawyer he now has is the lawyer who made that privacy suit against Gawker. So they have to be careful about invading privacy and making sure that what she says about sex as some sort of newsworthy angle.

SMERCONISH: Perhaps this will finally be the case where we test that size-of-hand hypothesis. George Freeman, thank you so much for being here. I appreciate it.

FREEMAN: Thank you very much, pleasure.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. What do we have? Smerconish, he had an affair with a porn star. What is new? Loads of businessmen have affairs with people and porn stars are people too. Reality 2018, not going to hurt him politically, but will the red ties get tossed out of the second floor of the White House? That is the question. Also up ahead the results of the survey question, given the market dominance of Amazon, Apple, Facebook, and Google, is it time to bust up big tech quickly? Go to and cast a ballot so you are included in the total.


[09:50:00] SMERCONISH: So this is going to be interesting. I have no idea which way this goes. The poll question right now, given the market dominance of Amazon, Apple, Facebook, and Google, is it time to bust up big tech? 8,119 votes cast, survey says, whoa, 59% say yes. I would have been surprised whatever the result was. I just don't know where the passions lie on this. But my hunch is we all so love the gadgetry, you know, as he says, looking at his iPhone, that while maybe we think economically speaking, they have too much power, uh-oh, I hope it's not going to jeopardize my ability to do a Google search.

Here's some of the social reaction that's come in during the course of the program. Hit me Catherine. Wow, you really go way out of your way to support any and everything Trump does. Sycophantic much? You know what, I'm not going to respond. I just -- my hunch is that was Rich. Let's see what the next one is, my hunch is, and I don't know they don't tell me the tweets in advance.

Smerconish, this is not "A Tale of Two Cities." To refer to the right wing as a legitimate side is wrong. See what I mean? Right? I'm sycophantic and now what am I doing? Now I'm treating the right wing too favorably. They're delegitimized by propaganda and Russian influence. The earth is not flat. There are not two sides. Yes, there are two sides. There really are. Guess what. I'm against both extreme sizes. I'm for the middle size, you know where common prevails and data drives conversations.

What's next Catherine? You have another one in there? Smerconish, are the tweets you read on air actually composed by yourself? I don't know how to say your handle, but I guess I have just proven that that is not the case.

[09:55:00] Not only do I not write them, I don't see them until you see them. We have this crazy operation here where I'm in front of a camera in Philly, and my producer, T.C., is out in the burbs, and she's screening them madly and sending them to New York, and then New York sends them to Atlanta, all so that I can respond in real time to whatever is on your mind.

I'll keep that poll question up at Keep tweeting, Facebooking, and remember, you can catch up with us any time on CNNgo and on demand. See you next week.