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Rudy's Firestorm; The Long And Winding Probe; Is Guiliani Working For Trump Or Against Him? Can Stormy Daniels Case Imperil Trump's Presidency? Unemployment Rate Hits Lowest Rate Since 2000; Facebook Post On Racial Fears Goes Viral. Aired 9-10a ET

Aired May 05, 2018 - 09:00   ET


[09:00:00] MICHAEL SMERCONISH, CNN CORRESPONDENT: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Just as soon as America's mayor became the President's lawyer, Rudy Giuliani wasted no time trying to rewrite the Stormy Daniels and Comey narratives. But by Friday, he was backtracking. Will the latest addition to the President's legal team end up helping or hurting the President?

After the leak of Mueller's potential questions, the President has still not decided if he'll testify. As we near the midterms, and a possible blue wave, does this endless delay put time on the side of his opponents who wish for impeachment?

Plus, the President got some good news this week. The unemployment numbers are down to near historic lows.


DONALD TRUMP, PRESIDENT OF UNITED STATES: The unemployment rate just fell beneath 4 percent for the first time since the beginning of this century.


SMERCONISH: And when a package was misdelivered to a Harvard law school graduate in Phoenix, he was afraid to let his sons redeliver it because they are a black family in a white neighborhood, a viral moment ensued. Was he right to be worried?

But, first, Rudy Giuliani debuted as the new head of the President's legal team this week, in his appearance Wednesday with Sean Hannity on Fox News which sought to put out a legal and political fire instead ignited one. When Giuliani told a new narrative about how Michael Cohen had been repaid for the Stormy Daniels hush money, via a retainer, and over several months he caught many by surprise including members of the President's legal team.

But where he'd spoken to his client, the President, before going on air, this was a deliberate strategy, one that the President embraced the morning after in a series of tweets seemingly the intent was to provide Cohen with cover from potential charges that he'd violated FEC requirements when making the $130,000 payment to a porn star without disclosure. Among those caught by surprise Michael Cohen himself, at least according to his confidante, Donny Deutch.


DONNY DEUTCH BRANDING AND MARKETING EXPERT: I spoke with Michael Cohen yesterday. And he's quote about Giuliani with this and always talking about. He also said that look there are two people that know exactly what happened, myself and the President. And you'll be hearing my side of the story.


SMERCONISH: By Friday, the President was excusing away Giuliani's behavior as rookie mistakes.


DONALD TRUMP PRESIDETN UNITES STATES: He's learning the subject matter, and he's going to be issuing a statement too. He started yesterday. He'll get his facts straight.


SMERCONISH: Giuliani did release a statement which allowed no more improvising. There's no campaign violation. The payment was made to resolve a personal and false allegation in order to protect the President's family. It would have been done in any event, whether he was a candidate or not. And my references to timing were not describing my understanding of the President's knowledge but my, instead, my understanding of these matters.

As I've said from the get-go regarding the Stormy Daniels situation, the President has been trying to thread a needle. He's been trying to argue that he was out of the loop on the settlement, had nothing to do with the settlement. But at the settlement with Daniel is nevertheless binding. Only time will tell whether Rudy's strategy proves a legal asset or liability, but in a big picture sense.

The Daniels case might be a case of us witnessing the reprise of say white water, where an inquiry in what confusing land transaction ended up exposing an intern scandal. Here, investigation into Russian meddling in the U.S. election has now morphed into questions about the aftermath of a one-night stand more than a decade ago. Might it nevertheless imperil a presidency? Or are the stakes of what the President calls a witch hunt overblown?

That's today's poll question at Do the latest developments arising out of the Stormy Daniels case imperil the presidency? Go cast a ballot, results later this hour.

Joining me to discuss is Jonathan Turley. He's a Professor of Constitutional Law at George Washington University. He wrote this piece in USA Today, is Rudy Giuliani working for Donald Trump or against him?

Professor, welcome back. What's your answer to my big picture question, this whole Stormy Daniels business, might it imperil this presidency?

JONATHAN TURLEY, PROFESSOR OF CONSTITUTIONAL LAW, GEORGE WASHIGNTON UNIVERSITY: I think it just might. The problem with this is it didn't have to be an existential threat but it's becoming that. They've allowed this to metastasize, to get to a point where you could actually take a scandal and make it criminal.

It takes a lot of work. You have to make a lot of missteps but they're making a pretty good show of it. What Giuliani did in that interview is really baffling. You know, you're not supposed to work out the facts on live television. And when he says this is my understanding of the matter, not my client's knowledge, his client's knowledge is the matter.

[09:05:13] And so, it was just an appalling thing to watch.

SMERCONISH: Here's what struck me in the Hannity interview. It was the way in which he had a sort of epiphany as to, aha, it's the retainer that was the repayment method for the Stormy Daniels litigation. Watch this clip.


RUDY GUILIANI, PRESIDENT TRUMP'S ATTORNEY: Everybody was nervous about this from the very beginning, I wasn't. I knew how much money Donald Trump put into that campaign. I said $130,000. He's going to do a couple of checks for $130,000. When I heard Cohen's retainer of $35,000, when he was doing no work for the President, I said that's how he's repaying -- that's how he's repaying it.


SMERCONISH: In other words, professor, it's not that President Trump told him, it's not that Michael Cohen said, hey, Rudy, here's the way it happened. But rather, it occurred to him. Your reaction?

TURLEY: Well, first of all, it's not a defense, it actually as worse. You know, first of all, it basically changing what was called a gift into a loan does not get you out of campaign finance problems. The trips additional wires. You then have reporting problems, tax problems, also have questions about past statements. So it doesn't help.

And what was really curious about this is his statement that, well, you know, we disguised effectively, or he did, hush money in the form of legal fees. Well, that triggers ethical problems as well. Lawyers don't do that. You are a lawyer and you know that as well as I do.

SMERCONISH: So let's go deeper. Who was the intended beneficiary of the Giuliani strategy? Because superficially it would seem that they're providing cover for Michael Cohen. But is it that simple?

TURLEY: I don't think it is that simple. What worries me is that, this was primarily a play again to the public. You know, Giuliani was there making all types of threats, calling the FBI agent storm troopers or, you know, saying that he's going to basically crush Mueller. Giuliani can't really imagine that's going to intimidate Mueller or the prosecutors. He was there. He was on the other side.

So that only leaves the public. And the question is why are you still making a pitch to the public? This is getting into a chronic stage. I mean, you are in serious difficulty with your client. Trying to make this pitch to the public as a very dangerous thing, and it's not going to help.

SMERCONISH: If Michael Cohen made $130,000 payment out of his own pocket, even from a credit line to Stormy Daniels, and it was deemed to have been a campaign contribution, an in-kind contribution. He might have exposure for not having declared it, vis-a-vis the FEC, but would the President have any exposure in that regard? That's what mystifies me as to Rudy's assertion and why he would have made it.

TURLEY: The President would have exposure. I think we have to put this in perspective that campaign finance violations are ordinarily not treated as criminal matters. The John Edwards Prosecution under a similar set of facts, money going to a mistress as opposed to a one- night stand, did lead to his indictment, did lead to his trial but it did not lead to his conviction. And many of us questioned how strong that case really was. So we have to keep that in perspective.

But if the President, particularly through his lawyers engaged in a knowing effort to conceal campaign finance contributions as retainer fees, yeah, he could be pulled into this. The other problem is that the team seems to be pivoting away from the president's former position. I think they've concluded, particularly with the documents that were secured in the raid against Cohen, that they could no longer factually and legally maintain the position that he was in.

But in tacking away from that position, they left Cohen where he was. He is alone and not in a good place. And that can be very dangerous because he can be very dangerous if he decides to cooperate with prosecutors.

SMERCONISH: I have a defense for Michael Cohen. You want to hear it?

TURLEY: I am eager to hear it.

SMERCONISH: All right. It's a defense that says we paid $130,000 ten days out from the election. We were looking at the same polls as everybody else. Nate Silver et al gave us no shot to win. We didn't think we were going to win. Therefore, we didn't pay $130,000 with the election in mind. We paid $130,000 with the future of Donald Trump, his brand, his marriage, his family. It had nothing to do with the election. You buying it?

TURLEY: I'm afraid not. First of all, Trump had a reputation with regard to these types of liaisons that preexisted and also followed these disclosures.

[09:10:02] But more importantly, Giuliani himself undermined that argument. At first he said this was all about saving the marriage, and then he immediately contradicted himself, said well it wasn't about the marriage, it's about his reputation. And then, the next day he said well could you imagine if this had gotten out during the presidential debates.

SMERCONISH: October 15th.



TURLEY: So, you know, he himself can't seem to maintain a coherent narrative. This isn't rocket science. You sit down and you create your narrative for defense. The only thing you have to do is preserve its clarity and coherence. Giuliani --

SMERCONISH: I know. You know what, I have to say this, professor. He's a smart guy. Mayor Giuliani is a smart guy. So I continue to give him the benefit of the doubt wondering, are the rest of us missing something that we haven't picked up in a grand scheme. Anyway thank you for being here. I always appreciate your analysis.

TURLEY: Thank you.

SMERCONISH: Thanks, Jonathan Turley. What are your thoughts? Tweet me @smerconish or go to my Facebook page. I will read some through out the course of the program. Like this, "If a point of that statement is that he doesn't know all the facts and is not speaking on behalf of the President, why should we listen to or believe anything Rudy says?" Jeffrey, that's the question people are asking I think about the White House now. You know, that it's death by a thousand cuts. Like the doctor, the whole Dr. Ronnie (ph) issue, and the doctor from New York and the President having dictated that.

In the scheme of things, is it a big deal? No. But when you add them all up, it's problematic. One more, if we have time for. Is it a retainer fee or "retain her" fee? This legal stuff is so confusing. David, it's the only time -- I tweeted this earlier in the week. I said it's the only case I've ever heard up where a billionaire has to use a retainer in $35,000 monthly installments to pay a $130,000 debt. It strains credulity.

Anyway go to, answer the poll questions of the day, please. Do the latest developments arising out of the Stormy Daniel case now imperil the presidency?

Up ahead, the President has been endlessly seesawing about submitting to questions by Robert Mueller's team by dragging it out this long. Is he risking giving the Democrats more power, those who want to impeach? And during the campaign, the President famously said, what have you got to lose to unemployed African-American voters? Well, the unemployment number has dipped below 4 percent for the first time since the year 2000 and black unemployment is also at historic lows. So was he right?

TRUMP: I'd say, what do you have to lose? And they voted for me and we won, but now the numbers are much higher than they ever were with African-American and we're happy.

(COMMERMCIAL BREAK) [09:16:42] SMERCONISH: The new unemployment numbers are historic falling below 4 percent for the first time since the year 2000 leading the President to tweet on Friday, just out 3.9 percent unemployment, 4 percent is broken. In the meantime, witch hunt.

You got to admit he's got a point, right? There's very little bandwidth being spend on this achievement. And Black unemployment is down to 6.6 percent, an all-time low. So does he deserve credit?

Joining me now, Christopher Lu, former Deputy Secretary of Labor for President Obama. And Steven Moore, Chief Economist at the Heritage Foundation and CNN Senior Economics Analyst. Christopher, if these numbers came in on Obama's watch, you'd be psyched, no?

CHRISTOPHER LU, FORMER DEPUTY SECRETARY OF LABOR: Yes, the numbers did come in under our watch. I mean, if we're looking simply at African-American unemployment that dropped 9 percentage points since the peak of the recession. It's dropped another percentage point during the Trump administration. So if we're going to give credit, let's give 90 percent of that credit to President Obama and 10 percent to President Trump.

SMERCONISH: Steven, I imagine your ratio slightly difference. Go ahead.

STEVEN MOORE, CNN SENIOR ECONOMICS ANALYST: So, you know, during the campaign, one of the things we always talked to Donald Trump about was this idea of a rising tide lifts all boats. That if you can get the economy growing faster and a robust kind of business expansion, that will benefit everyone. And, you know, we're starting to see the fruits of that Michael.

I don't think there's any doubt about it, you know, that if you -- it's not just, you know, the low unemployment rate for everyone. As you mentioned, the fact that we have the lowest black unemployment rate since the Beatles were still playing together.

And then, by the way, the Hispanic unemployment rate also is the lowest that it's been in recorded history. So those are, you know, I watch CNN. By the way, I want to congratulate you, Michael, for covering the story because it's a story, frankly, that others on CNN really don't cover because it's the Russia probe 24/7. And what people care most about, you know, certainly during the campaign was getting the economy moving again. And I think a lot of positive results so far.

By the way one statistic, Michael, that we're still concerned about, if we really want to see these economies explode. We want to see an increase in the labor force participation rate. And so that's the one that still hasn't moved as much as we'd like, getting millions of people on the sidelines back into the workforce.

SMERCONISH: Well, and I guess I'll put it to Christopher now. It was going to raise this with you, but in the sake of fairness in terms of time, that was candidate Trump's position, right? I mean I often heard Christopher from candidate Trump that you can't believe the Obama era unemployment numbers because they don't reflect all the people who've given up.

Now, I see that he's the president and wants some credit, deservedly so, for 3.9 percent. He seems to have forgotten the argument that was just made. Christopher, your reaction?

LU: Well, that's exactly right. It's ironic that a president who criticized the government unemployment numbers as phony and hoax is now taking credit for them. We also know, the three of us here, that the presidents often get too much credit, too much blame for the economy and unemployment numbers.

But, Michael, when I look more broadly at this issue of what do African-Americans have to lose, I'm not just looking at jobs. I'm looking at the president's rhetoric, I'm looking at the atmosphere that he's created, his attack on black NFL players, his embrace of people like Roy Moore, Charlottesville, his policies on the Affordable Care Act.

[09:20:03] And so this is not just about jobs. It's not just about wages. It's about the tone that this president has set in this country and a sense that African-Americans feel like he is breaking policies that help people for everyone except for them.

MOORE: Except that, you know, I would make --

SMERCONISH: But you know what, I've --

MOORE: No, go ahead.

SMERCONISH: Steven, let me ask you this because Christopher brings this all up in a bigger political context.

MOORE: Right.

SMERCONISH: And I'm curious to ask you about something. Front page in The New York Times today has side by side stories above the fold. One about Stormy Daniels and one about the jobless rate and I'm sitting here wondering in 2020, Steven --

MOORE: Exactly.

SMERCONISH: -- which of these matters more to American voters?

MOORE: I couldn't have put it better. And in fact this is the case I've been making, you know, quite often. That if you look at the polls, you know, going up through the couple years before the 2016 election, though it's very clear, what Americans cared most about, undeniably, was jobs and the economy. That was first and foremost on Americans' mind because frankly Obama, you know, did the best he could but we had the weakest recovery from a recession since the great depression.

People just didn't feel good about things. I do think -- look, I'm going to agree with a Democratic president, Michael, it was Bill Clinton who said it's the economy stupid. And I think when, you know, if that we get an economy they're strong 2.5 years from now. I think despite all of Donald Trump's other issues, I think he'll win 40 states because people feel better about their financial situation in their lives.

SMERCONISH: And, Christopher, the wages are stagnant. I guess that's the down side of the economic picture that we face now. By they way, why is that the case? Take it out of a partisan context. Just explain to me as a guy who would like to know, why are wages not popping?

LU: Well, look, at 3.9 percent, you'd expect wages to be higher than the 2.6 percent increase that we have had. In part, I think we're starting to see that there is much more slack in the labor market than we've had in the past. And I think frankly we're starting to see the economy maybe not being what we always thought it was, and whether it's because of globalization or automation, the economy is just different at this point.

But I will say more broadly to your point, the fact that the president's approval ratings are still mired in the lower 40 percent shows that the economy does matter. But people want a president whose values reflect theirs. And so the economy I think will provide ultimately less that they boosted him, than perhaps it has to other presidents in the past.

MOORE: Michael, one quick point. You know, on the wage issue, you're right. We, you know, the whole point of this tax cut that we did with the President was to try to get a tighter labor market so that wages would rise.

I'm going to make a prediction on your show. I believe you're going to start to see wages rise at a faster pace because there's this demand -- there's 6 million more jobs today, Michael, than there are people to fill them. There was an article in The Washington Post yesterday that said in some areas of the country, businesses that are paying $25,000 bonuses to blue collar workers to get them to sign up. That's an indication this tight labor market is going to translate hopefully into higher wages in the months to go come.

SMERCONISH: Christopher, you got a ten-second rebuttal and then we're done.

LU: Wages will increase because the labor market is tight, not because --


LU: -- of tax cuts that went to the wealthy and corporations.

MOORE: But that's what created the tight labor market.

SMERCONISH: Gentlemen, thank you. Appreciate you both having been here.

LU: Thank you, Michael.

SMERCONISH: Let's see what you're saying via my Twitter and Facebook pages. What do we have Katherine.

Smerconish, CNN, job numbers and the economy will not help this administration. The midterms in 2020 will focus on social issues only.

Well, Tanya, I don't know the answer to that question. That's what remains to be, but it's like a tale of two cities. Some fixated on only one aspect and others on the other. We'll carve those words from, what year was that, '92, be true in 2020? Time will tell.

Up ahead, will he or won't he, the President's back and forth about testifying before Robert Mueller's Russia probe is taking so long. It's about to smack into those midterms, which could give the Dems the power to make his impeachment more likely.

[09:24:10] And this Facebook post by a Black Harvard law graduate about a misdelivered package went viral because he says he was too afraid to allow his sons to bring it to his neighbor's house. It got a ton of response.


SMERCONISH: The president has repeatedly accused Robert Mueller's Russia probe of being a witch hunt. And Friday a district judge in one of Paul Manafort seemed to agree. District Judge T.S. Ellis, a Reagan appointee, told the prosecutor quote "You don't really care about Mr. Manafort's bank fraud." He said that Mueller's interest in Manafort is all about trying to get to Trump and that crimes committed before the Trump campaign do not relate to the issue of coordination with the Russian government.

Also on Friday, the President repeated his claim that he wants to talk with Special Counsel Robert Mueller but with caveats.


TRUMP: I would love to speak because we've done nothing wrong. I would love to go. I would love to speak, but I have to find that we're going to be treated family fairly. Wait. Wait. I have to find that we're going to be treated fairly.


SMERCONISH: This is just the latest chapter in the seemingly endless will he or won't he gamesmanship about a possible Mueller/Trump showdown, about whether the President will possibly grant an interview or have to be subpoenaed in the Russia probe. The latest is that a source is telling Jim Acosta the president's lawyers and Mueller are making a final push toward a final decision and that it's a 50/50 chance of an interview happening.

Should the president be subpoenaed to testify, this source said that the likelihood is that the Trump legal team would fight that all the way to the Supreme Court. That could take another nine to 15 months.

[09:30:06] Here's what strikes me. The ongoing delays might not be to the President's advantage. Mueller can't cleanly wrap up his probe without the President's perspective, at least with regard to the obstruction inquiry. My gut after looking at the list of leaked possible questions, just an outline really is that they could easily take two to three days of testimony without loquacious commander in chief. But new hire Rudy Giuliani claims that he would limit the President's interview to two or three hours.

The longer this posturing goes on, the more likely it pushes the conclusion beyond the midterm election which would have once seemed unfathomable. But now there's no end in sight. So if, in fact, it does linger, it raises the prospect that when it's resolved, Democrats could control the House, maybe even the Senate, and that becomes important because Mueller is in all probability, preparing a report to give to Rod Rosenstein that will then go to the Congress, that in some people's minds along partisan lines will be grounds for impeachment.

My point is it's to the President's advantage that the Mueller probe be wrapped up ASAP, while Republicans are in control of the House and Senate. Otherwise, it inevitably keeps the prospect of impeachment in the national discussion, not necessarily because of the facts, but because of who controls the Congress.

Joining me now to discuss is Jens David Ohlin, Vice Dean at Cornell Law School where he teaches Criminal Law. Jens, let's game this out. Mueller wraps up his work and then what happens?

Presumably he takes it to Rosenstein. Does Rosenstein give it to Congress? Does it become public? What do we know?

JENS DAVID OHLIN, VICE DEAN, CORNELL LAW SCHOOL: Rosenstein is not required to release the report to the public but he's certainly allowed to. There's some constraints on this, of course any, you know, confidential information in the reports, any classified information would have to be redacted. Also grand jury testimony is usually confidential. And so that would have to be pulled out of the report.

I would expect, you know, Mueller maybe even sending a full classified version to Rosenstein, and then an unclassified executive summary that could be released to the public. Even though Rosenstein doesn't have to, you know, release that to the public, my bet is he really would because Rosenstein's legacy is on the line here. He's really under a lot of political attacks. And so my best guess is that Rosenstein would probably give the report to key members of Congress, but then also release a portion of it to the wider public so that there can be a political dialogue about what happens next.

SMERCONISH: There are a lot of comparisons between Mueller and Ken Starr but if you get into the weeds, you find that they really you don't have the same charge because of a change in the law. Here's my question. Do you expect that Robert Mueller will reach legal conclusions?

OHLIN: Well, it depends what you mean by legal conclusions. If you mean will the report --

SMERCONISH: Obstructions.

OHLIN: -- will Mueller's report say -- what?

SMERCONISH: Yes, obstruction.

OHLIN: And will he say.


OHLIN: Yes. Will he say obstruction? I think he'll say there -- I have gathered substantial information and substantial evidence which leads me to suspect that the President may have engaged in obstruction of justice. He won't say the President committed obstruction of justice because that's really for the fact finder to decide.

And I also think he might feel constrained by current justice department policy which says that a sitting president can't be indicted. So I would expect that the sentence would read something like this. I have probable cause to believe that the President engaged in obstruction of justice, and otherwise I would indict but can't indict because he's currently the occupant in the Oval Office. That's the type of legal conclusion that he would reach.

SMERCONISH: OK. You heard my introduction relative to the whole timing of this vis-a-vis the midterm elections. Here's a scenario. Let's imagine that Mueller comes in with a report relative to obstruction before the midterm elections. While Republicans still control the House and the Senate, and the GOP takes no action.

But there is a majority Democrat control of the House come next year. Could the Ds still pick that report up? Is there any time limitation? Could they act on it if the Rs did not?

OHLIN: There's absolutely no procedural barrier to the Democrats re- engaging with the report and saying the Republicans really didn't deal with it appropriately and we now want to file articles of impeachment. Now, that the Democrats have control over the House Judiciary Committee. And then there would, you know, be a trial in the senate.

I would take it even one step further, your hypothetical. Even if there was an impeachment in the House and then the case went to the Senate, and there was a trial and the President wasn't removed, none of that prevents the House from filing new articles of impeaching and impeaching the President a second time and forcing a second trial in the Senate. You can do that as many times as you wanted.

[09:35:09] The constraints here is though political. I think that there would be a lot of pressure on the Democrats. The Republicans would be accusing them of trying to have a second bite at the apple, and the Democrats might feel like, you know, maybe we should let this go.

I also think --

SMERCONISH: OK, one more scenario.


SMERCONISH: This is almost like good bar room chat for geeks. Let's imagine that Mueller comes in with a report relative to obstruction, because I understand Mueller may release his findings in stages. It comes in on the watch of the Rs. The Rs rounded up the flag pole for a vote while they control the House, knowing they can vote it down.

Now, Democrats take control of the House. Can they resurrect it? I think you've told me yes.

OHLIN: Yes, they can totally resurrect it and they can have a second bite of the apple. And, you know, a new House with Democrats in control. I think that they could -- I think they could definitely impeach and send it to the Senate for a trial.

I think, you know, what you really have to think about is what happens in the midterm elections. And I think you're asking all of the right questions.

I really see three different scenarios here. One, Republicans retain control of the House. Two, Democrats manage to harness a lot of this, you know, sort of dissatisfaction with Trump. And they take control of the House. And, therefore, impeachment is more likely. But ironically, consider the possibility that there's a massive blue wave. And the Democrats almost sweep the House.

At that point, I wonder if it's possible that Democrats will decide they don't want to pursue impeachment, even though they have the legal power to do so, because they decide they would rather go into the next presidential election with a weakened Trump rather than trying to remove him and have a President Pence go into the next election.

SMERCONISH: Jens, thank you so much, interesting analysis. I think we're ahead of the curve on this.

OHLIN: Excellent. Thank you very much for having me.

SMERCONISH: Let's check in on your tweets and Facebook comments, what do we have? I think from Facebook, "You can't wrap it up when you know you're guilty, so it must be drawn out as long as possible."

I don't think it's too his advantage, Kelly and Walt Klein as I just explain, meaning to the President's advantage that this be drawn out. He wants the results to come in while Republicans control the House and the Senate.

By the way, this whole subject bums me out, because it's not evidentiary thinking. It's not fact based. It's an acknowledgment by me that ultimately where this goes is predicated on partisanship and not on fact.

One more, if I have time for it. "All Trump needs to do is answer Mueller's questions with this response. I don't recall."

Probably, you know, look, he is -- the President, I say this as a trial lawyer who has defended hundreds if not a few thousand depositions. He is one tough client because he's loquacious. It's hard to get him to stop speaking and it will be hard for him to follow anybody's direction, even that of Rudy Giuliani.

So I don't know that he'll be so inclined as to invoke the old "I don't recall." I want to remind you to answer the survey question at I can't wait to see the outcome of this.

Do the latest developments arising out of the Stormy Daniels case now imperil the presidency? Results at the end of this hour.

Still to come, when this man, a Harvard Law School graduate got a package meant for a neighbor, he was too scared to redeliver it or allow his sons to do so because he lives in a predominantly white neighborhood. And his Facebook post about this went absolutely viral. He's here to discuss.


[09:43:48] SMERCONISH: So a package is misdelivered to your home, meant for somebody who lives nearby. What do you do? You just walk it over to them, right?

Well, when that happened recently to an attorney in Arizona named Sean Carter, he instead called to have it picked up and redelivered. Why? As he explained in a viral Facebook post because he is black.

In Carter's post, which so far has more than 210,000 likes and 120,000 shares, he explained neither he nor his teenage sons could walk it over because there was a, "realistic chance that a neighbor would see them as a threat and call the police or even pull a gun". Carter cited the recent story of a Michigan 14-year-old named Brennan Walker who was lost and knocked on a door to ask for directions. The homeowner, afraid Walker was a burglar, summoned her husband who opened fire on the teen.

So Carter wrote, "I can't trust that my white neighbors won't see me, a Harvard educated lawyer or my 14-year-old honor student son as a roaming homicidal maniac. This is what it's like to be Black in post- racial America". In response, his post was flooded with 79,000-plus comments both from sympathizers and from those calling him a racist and a-hole, a pussy and many other things.

[09:45:07] Carter then asked to the subsequent post, "So why all the vitriol, because I'm afraid for my children? Even if my fear was completely irrational, isn't that a reason for anger and hatred?"

Sean Carter joins me now. Tell me the conversation around your kitchen table. How does your wife and how do your sons feel about this whole controversy?

SEAN CARTER, LAWYER AND HUMORIST: As far as my wife -- and that's how I found out about it. The package is on the front porch. I asked her, she says it's for a neighbor. And she'd already looked at the address and it's not on our street where our neighbors know us, but it would be a couple blocks over. And, you know, from us, it was unspoken that we would not be delivering that package. Now let's understand, I live in a gated community here in Arizona. We have gates for a couple of reasons. One, we want to keep the old people from running off, and that's a problem, but also there's a reason that you have gates and it's not to keep the rich people out. It's to keep out the undesirable element whatever that might be.

Now right now, I have a suit on. I don't look like the undesirable element but in a hoodie, all right, in what, weekend attire, I would look like the person you'd call, all right, to worry about your neighborhood. I wasn't going to subject myself or my 14-year-old sons to that.

Now, the conversations I have with my sons are interesting because, you know, they weren't raised like I was. I'm straight out of Compton. And I don't just mean I have the t-shirt and I saw the movie. I have it on my birth certificate.

I was always -- right, I was raised knowing I was black. I have to tell you that my sons have had to be taught. I had a conversation with my youngest son once explaining to him that he was black and he was like, "No, no, I'm light brown." And I was like, "Well, let me explain to you what this means." And so we're having these conversations quite often.

And it's funny their reactions are a lot like probably some of your -- some of the critics on Facebook. I took the kids to see "Hidden Figures" last year, almost had to pull a gun on a couple of them to get them to see it. And my oldest said to me, "Dad, you just want me to go see this movie because you want me to hate white people." And I had to explain to him, "Son, that's only 90 percent of it, all right?" The other percent is I want him to understand where his history comes from and they have to understand that things are just different for us. It's not horrible -- this is --

SMERCONISH: So I take from this -- by the way, I appreciate the levity. Send your e-mails to Sean Carter when you add up that 90 percent reference he just made. The 14-year-old it sounds to me like the 14-year-old saying, "Dad, just let me take the package."

CARTER: Well, no, he -- that would be like the 23-year-old. You know, the 14-year-old is just starting to get some of these things. So let me give you a great example.

And this is what's amazing to me. The post I had, this is a twinge of blackness. You know, if you can compare being black to a chronic illness like, you know, back problems or knee problems, this is just a twinge, something that you go "Oh, I'm black and move on." This doesn't ruin your whole day but he's starting to understand that there are things he can and cannot do.

So let me give you a more serious one. One day he's out playing with the kids, and they have these airsoft guns. You know those, you know, the toy guns.

SMERCONISH: Sure, yes. CARTER: And I had to explain to him that that's not something he can do outside of our home anymore because you cannot be a young black boy holding anything that looks like a weapon. And at first he didn't really understand until I showed him the Tamir Rice video, and I tried to explain to him this is just, you know, one of the limitations that you'll have in life.

Now, guess me wrong. I'm not saying that he's going to be totally limited life, it's going to be horrible. I've actually had a decent life, OK. It's worked for me. You can work this out, but there are just limitations that come to, you know, with being a black man in America.

SMERCONISH: Hey, Sean, the radio discussion that I had based on your Facebook post maybe unsurprisingly broke largely along racial lines. And where many people in the Facebook posts reveal their race, you know, I was sad to see the same kind of a thing going on in the Facebook world.

I wish I had more time. Let me just say it's a great conversation. I'm glad that you were here.

CARTER: Thank you so much for having me, Michael.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. And we'll give you the final results of today's survey question at Quickly vote. Do the latest developments arising out of the Stormy Daniels case now imperil the presidency?


[09:54:02] SMERCONISH: All right. We're going to find out together, time to see how you responded to the survey question at Do the latest developments arising out of the Stormy Daniels case now imperil the presidency?

Look at these, 10,785 votes cast. Look, you guys are going to think that I'm fed this. I'm not. Katherine, check this out. Look at my guess, a pure guess on my part. I wish they could hear the control room to acknowledge that I don't get fed the answers. That's pretty damn close, isn't it?

I'm also predicting that the 76ers turn it around and beat the Celtics. Here is some of what came in during the course of the program. What have you got?

"Smerconish, the length of the probe is making most of us numb to the issues that are lead stories in liberal media. Wrap it up and let POTUS do his job."

Joe, I'm Stormy'd out. You know, I think Michael Avenatti is a very skilled and effective trial lawyer but I've had my fill of he and his client at this stage.

[09:55:05] But this thing just keeps going in different directions. What's next? What's the most likely Trump impeached voted out in 2020, resigning or winning in 2020?

A-RO-SPO, you want to bet against anything I tell you, because I never thought he had a shot to win to begin with, something that he has never let me forget. But you've got to say that the incumbent is always the favorite. And, you know, I come back to which story is more important? There they are, side by side. Is it Stormy or is it the economy?

I think carvel is still right. One more if I have time for it. Smerconish bar room chat for geeks. I see a new show.

Hey, Meghan Fitzgerald, that is a program that I could host. Gang, I'll see you next week.