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Smerconish's New Book is Released June 1; Timing of Release of Mueller Investigation Results; NFL National Anthem Ruling; Commencement Speaker Protocol. Aired 9-10a ET

Aired May 26, 2018 - 09:00   ET



MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Happy Memorial Day weekend to our friends here at home. So the President says everybody is calling it Spygate and if you listen to only the conservative media, you'll be convinced he's right. It's a confusing story but what does the evidence show? I think I can cut through the partisan noise and spell out what you really need to know.

And with the midterms less than six months away, must Mueller take account of the electoral calendar as he decides when to wrap up his report? I say no; that was Jim Comey's mistake. Plus, after the President kept bashing NFL players for taking a knee during the National Anthem, the league imposed new rules and fines, but if they think that's fixing the problem, I'm throwing a flag on that play.

And this is commencement season and speakers of all stripes are addressing the political climate but should they go so far as to name the President?

Plus, an exclusive interview with an author who is fighting the good fight to bridge the partisan divide and donating all his profits to charity. Chris Cuomo is here to question the esteemed author of a brand-new book "Clowns To the Left of Me, Jokers to the Right" and that would be me.

But first, in recent days, the President and conservative media have promoted a theory that the FBI embedded a spy within the Trump campaign during the 2016 election. This plot holds that the intel community, the so-called deep state, with the support of then President Obama used this spy to destroy the Trump campaign from the inside and it was that work that spurred the Mueller probe now being used to frame President Trump.

That's why the President has labeled the Mueller probe a witch hunt or Spygate. Watching the ensuing partisan debate unfold, I find it to be big on sound bites but thin in evidentiary analysis. The facts are a bit complicated, only makes them more easily conflated. But I think I can distill it in about three minutes time so start your timer.

Philip Bump of "The Washington Post" has published the best tick tock to date; he'll be here in a moment. If this was a book I'd call it, "The Tale of Two Professors." On March 14, 2016, Joseph Mifsud, a London-based professor who is the Director of the London Academy of Diplomacy met a young Trump Foreign Policy Advisor named George Papadopoulos in Italy.

One month later Mifsud told Papadopoulos that the Russians had dirt on Hillary Clinton. Quote, "they have thousands of e-mails," he said. That's information that Papadopoulos shared soon thereafter with an Australian diplomat named Alexander Downer.

Three months later on July 22nd, 2016, WikiLeaks began releasing e- mails stolen from the DNC. Seeing this, the Australians now realized that what Papadopoulos told their diplomat was true. They reported this to the FBI and the Russian investigation was launched. Naturally, Papadopoulos, given what he told the Australian diplomat, was a focus, so, too, Carter Page who was already on the FBI radar screen.

Page had just traveled to Moscow to give a speech and while there sent a memo to Trump campaign staff alerting them of the desire of a Russian Deputy Prime Minister to work together. Now enter professor number two. He's a confidential source who CNN won't name, a retired emeritus professor at the University of Cambridge. He's also a former White House official from the Nixon, Ford and Reagan Administrations. His relationship with U.S. intelligence dates back at least to 2012 when he began work with the Pentagon think tank named the Office of Net Assessment.

This confidential source had himself recently met Carter Page at Cambridge University at a political conference. He would subsequently have interaction with Papadopoulos and Sam Clovis, three different representatives of the Trump campaign. There's no evidence to suggest that the confidential source was a part of the Trump campaign nor anything to indicate that he was ever embedded into the Trump campaign.

He reportedly appears to have provided the FBI with information about his interactions with the three Trump campaign officials as the FBI was trying to investigate Russian meddling in the American election. That's the timeline.

Now three points I want to make. First, ask yourself this, when the FBI was contacted by the representatives of a U.S. ally -- Australia -- and told that a Presidential campaign operative had accurately predicted a hostile government's document drop of stolen e-mails of another Presidential campaign, what should the FBI have done? Run it down, of course.

[09:05:00] Second, as noted by Aaron Blake of "The Washington Post," the reason these facts don't make sense as a Spygate conspiracy is that if the aim were to undermine Donald Trump's election, then why did all this remain a secret until after the election? Consider that one week before the election, "The New York Times" reported on the Russian investigation, but the story said that agents had uncovered, quote, "no conclusive or direct link between Mr. Trump and the Russian government." If this was a deep state conspiracy to deny Trump the White House,

then that was the time to drop that bomb, but that didn't happen. And finally, what it all suggests to me, at least, is that to the President and his partisans, this is not about evidence; it's about inoculation. The aim is to prepare the country for a scenario whereby Special Counsel Robert Mueller gives to Deputy A.G. Rod Rosenstein a report outlining a colorable case for obstruction of justice that would then go to the congress for a debate.

If Spygate is effectively sold, half the country will already be of a mind-set that the Mueller report is the product of a flawed investigation, even though that's unsupported in the facts. Joining me now is Philip Bump, a correspondent for "The Washington Post." He wrote the piece I referred to "How the FBI Informants' Outreach to Trump Staffers Fits into the Overall Investigation." Philip, what can you tell us about the interactions this confidential source had with the three Trump campaign officials?

PHILIP BUMP, REPORTER, "THE WASHINGTON POST": Well I think you nailed the overview which is that he had some limited conversations with Page. He had met him at a conference and had some subsequent e-mails with him. He had a brief interaction with Papadopoulos in London in September and then had one coffee sitting down with Sam Clovis, and Sam Clovis' role in the campaign was essentially, among other things to help negotiate the foreign policy advisers which Page and Papadopoulos were. As you said, it's very complicated.

But all of that said, I think that the important thing to take away is that the contact between this informant and the members of the Trump campaign was fairly limited but more importantly it all happened after the FBI had already started investigating these folks. The FBI had a conversation with Page in march 2016. They had already had a conversation with him back in 2013 when it looked like the Russians were trying to flip him. The confidential informant did not speak to Papadopoulos until mid-September which was a month and a half after the investigation opened as you pointed out. So all of this suggests that this was adding some evidence to what the FBI was already looking at, not that this was a predicate for the investigation itself.

SMERCONISH: I want to put on the screen a tweet from the President of the United States that you used in your column that I made reference to and he wrote this, "Reports are that there was indeed at least one FBI representative implanted for political purposes into my campaign for President. It took place very early on," my emphasis, "and long before the phony Russia hoax became a hot fake news story. If true, all-time biggest political scandal. Is that tweet factually accurate?

BUMP: No, it's nonsense. What we see in that tweet really is President Trump trying to make up the story that he wants to tell, not any sort of representation of what actually is going on. As I said, the interactions between this informant and the FBI happened only after the FBI had already looked at this.

He was in no way, as you pointed out earlier, actually part of the campaign. I spoke with a former FBI official several weeks ago before the a lot of the details were known and I asked him because it was clear at that point in time that would be a key distinction. Was somebody actually implanted into the campaign or was this just someone who was talking to folks and trying to sauce (ph) out what happened.

And the FBI person I spoke with said yes, if they had actually implanted somebody in the campaign, that's a big deal. If they were just trying to figure out if somebody committed a crime, who happened to be working for the campaign, it wasn't at all. He made an analogy of somebody who was trying to rob the bank. You wouldn't say if you were investigating an employee stealing from a bank, that's not an investigation of the bank. It's an investigation of that employee and that was the line that he drew.

SMERCONISH: It's very easily conflated because it is confusing but I said and I said at the outset, I think you have written, you've assembled the best tick tock of what this is all about and anybody who wants to know what the facts are should Google it and find it or find it in my twitter feed.

Philip Bump, thank you so much. We really appreciate it.

BUMP: Of course.

SMERCONISH: Up ahead, there's been a lot of talk that Robert Mueller needs to wrap up his investigation soon so that it won't impact the midterms. I beg to differ, and I'll tell you why.



SMERCONISH: Question -- by what date is it too close to the midterms for special Counsel Robert Mueller to release his report? My answer is none. Let me explain. The President's lawyer, Rudy Giuliani, claimed that the special counsel hopes to finish the obstruction inquiry by September 1st because, according to "The New York Times," waiting any longer would risk improperly influencing voters in November's midterm elections.

But a report by Reuters suggests that Giuliani's deadline was self- generated in an effort to pressure the Special Counsel to hasten the end of his work. I don't think Mueller should take into consideration the election timeline at all. To do so would be to repeat James Comey's mistake. You will remember that on July 5th, 2016, Comey held that unusual press conference about ending the inquiry into Hillary Clinton's e-mail server. He acknowledged that the FBI did not normally make public its recommendations to prosecutors as to whether to bring criminal charges but added that given the importance of the matter, I think unusual transparency is in order.

He went on to editorialize while Secretary Clinton and her colleagues had not intended to violate any laws, they were quote, "extremely care unless their handling of very sensitive, highly classified information;" blasting the subject of a criminal probe who is not being indicted highly unusual. Then October 28, 11 days before the election and when early voting was well under way across the country, Comey revealed to the Congress, knowing it would be revealed in the public domain, that he had reopened the Hillary investigation because of Anthony Weiner's laptop. Again, highly unusual. Why did he do it?


It seems that Comey, like many, was placing a bit too much stock in the prognostications of Nate Silver and others believing Hillary was about to be elected and not wanting anyone later to believe that he'd kept the matter silent so as to protect his future boss, especially where Donald Trump was claiming the election was rigged.

So by reporting to Congress on the reopening of the probe, he overcompensated just as he had done months prior with the public dressing down of someone who was not being indicted. Then on November 6th, two days before the election, Comey informed the Congress that the FBI had seen the new e-mails and the bureau had not changed its conclusion that Clinton should not face charges.

Two days later, Donald Trump was elected. So Americans had voted knowing that Hillary Clinton had been the focus of a federal probe but not realizing that the Trump campaign was also being investigated in connection with the Russian meddling. That conflicting scenario was brought about by James Comey taking politics into consideration and I say that Robert Mueller should not make the same mistake. Instead, finish the tax expeditiously and release its report whenever his work is concluded, whether it's now or come September, October, November. Besides, Donald Trump's name won't be on the ballot.

Joining me now is Nelson Cunningham. He served as a federal prosecutor in the Southern district of New York under Rudy Giuliani. He also served as General Counsel of the Senate Judiciary Committee under Joe Biden and White House General Counsel of the Office of Administration under Bill Clinton. Not bad. He's the author of this "Politico" piece "Three Predictions for What Mueller Will Do Next." Nelson, I think you disagree with me. For "Politico" you said there's an ironclad principal that prosecutors should not take action that could influence an election. Respond to what I just said.

NELSON CUNNINGHAM, FORMER FEDERAL PROSECUTOR: Sure, thank you, it's great to be with you. It is an ironclad principle. We need to maintain the integrity of our criminal justice and prosecution system. It is drilled into every prosecutor who's working on a case that touches public figures not to take an action in the window before an election or in any way that could shape the election.

This was so obvious that in 2008, George W. Bush's Attorney General Mike Mukasey wrote a memo to all the prosecutors at the Department of Justice saying warning them against this. And in 2012, barrack Obama's Attorney General Eric Holder simply took the same memo, put his name at the top and reissued it virtually verbatim. This is something that it goes beyond politics. It's something every prosecutor considers because no prosecutor wants to be in a position of James Comey and having to ask later in his memoirs, gee, did I somehow affect this election? SMERCONISH: So apply that now to the case at hand. July is when you

say Comey -- pardon me, Mueller either needs to put forth his report or keep his powder dry until after the election.

CUNNINGHAM: Of course, there's no magic date but what I did is I took a look at past cases. So the Hillary e-mail investigation, Comey pushed his agents to finish the work in June. She was interviewed July 2nd. He held his famous press conference you just referred to July 5th.

Another high-profile case, Senator Ted Stevens brought up on charges of corruption, and he was charged on July 29th of an election year in which he was on the ballot. July seems to be -- would seem to me to be about the last window. Rudy Giuliani says September 1. Fine. July or August.

SMERCONISH: OK, but now it's Memorial Day Weekend and Mueller has not yet had the opportunity to question the President. If I'm the President and if I buy into the idea that this could all be a setback for the GOP in the midterm elections, if I want to delay this, then I want to stall some more, bring on the summer with the confidence that that report won't see the light of day before Americans going to the ballot box. That's one of the reasons why I think Mueller's got to just block all this out, do his job, finish it and issue it.

CUNNINGHAM: First of all, it's very hard for Mueller to block it all out. He knows that anything he does is going to be picked apart, is going to be scrutinized, is going to be second guessed, triple guessed, quadruple guessed. He does not want to be part of the political equation. He just wants to finish his job and get it done. Can the President delay?

[09:20:00] Of course he can, but Bob Mueller has something in his hands that he can issue at any moment which is a grand jury subpoena to the President commanding him to appear at the district court on the below date and time and not to leave until relieved by the district court of that judge -- district judge of that court. He can give that to the President at any time and force the President to testify. Now, will they fight over the day, when --

SMERCONISH: Quick final question.


SMERCONISH: You think he has that subpoena in his possession already?

CUNNINGHAM: It's a very simple document. All it requires is his signature and then duly serving it on the President. Then you get into a legal fight over when and where but that's his ultimate trump card.

SMERCONISH: No pun intended. Nelson Cunningham, thank you for being here.

CUNNINGHAM: Thank you very much.

SMERCONISH: Next week, my seventh book will be released. I've got an advance copy. "Clowns to the Left of Me, Jokers to the Right." It's a collection of 100 of my more memorable newspaper columns from the more than 1,000 that I've published since 9/11. I wrote a new afterward for each celebrating what I got right and owning what I got wrong. I once took umbrage with a move to make the Miss America Pageant more about scholarship than beauty. I should say long before the #metoo movement. I may or may not have written this, quote, "If the pageant wants to become a televised Mensa meeting, that's their choice but I have a hunch America wouldn't mind a little more of an old-fashioned beauty pageant. Bring back the busty baton twirler." Yikes.

Coming up, Chris Cuomo interviews me about my new book.


CHRIS CUOMO, CNN ANCHOR: "Jokers to the Right, Clowns to the Left." Biased? Nobody is as afraid of jokers as they are about clowns.

SMERCONISH: No, I am casting equal aspersions on each.




SMERCONISH: I was for the Iraq invasion but I'm against a Cuban embargo. I've supported capital punishment but I think there's too much fighting in hockey. I was for profiling at airports post 9/11 and for using harsh interrogation methods to gain intel from terrorists. All pretty conservative stuff, right?

On the other hand I think pot and prostitution should both be legal. I want to end the SAT or Scholastic Aptitude Test, but I think we should continue to teach cursive writing. I'm for breaking up my state's monopoly on the sale of alcohol and I'd like to see the U.S. Treasury discontinue manufacture of the copper penny. Those are all my opinions. Or they were at one time expressed in newspaper columns.

Maybe right now I should be saying I'm Michael Smerconish and I approve this message. Hard to classify, don't you think? Which explains the title of my new book out next week "Clowns to the Left of the Me, Jokers to the Right, American Life in Columns" with an introduction by David Axelrod and a blurb from Governor Schwarzenegger.

By the way, I'm not making a penny, copper or otherwise on the project. All my proceeds are going to benefit the Children's Crisis Treatment Center here in Philadelphia which provides social services to kids who are the victims of trauma, and who better to dig deep into what it's all about than my fellow centrist compatriot and newly- minted CNN Primetime Anchor, Chris Cuomo, who launches "Cuomo Primetime" 9:00 p.m. Eastern on June the 4th. We spoke earlier.

(BEGIN VIDEO) CHRIS CUOMO, CNN ANCHOR: "Clowns to the Left of Me, Jokers to the Right." This may be one of the most perfect titles for what we're living right now and for your role in it, ever.

SMERCONISH: Yes I love it; it's what I use on my Sirius XM radio program as the theme song so I was thrilled that we were able to use it for the book.

CUOMO: But let's test some of the theories in this.


CUOMO: Because people if they listen to you, they love you but may not know the whole thing. You were in love with Reagan.


CUOMO: You worked for Bush one. You were a Republican. True or true?

SMERCONISH: Absolutely true.

CUOMO: So you're admitting you were a Republican.

SMERCONISH: I'm admitting that I was a Republican.

CUOMO: You just -- I said you are a Republican. You said yes.

SMERCONISH: I wasn't listening closely enough. I screwed up already.

CUOMO: So tell them how you got to where you are.

SMERCONISH: Well, I grew up in a Republican household. I came of age in the Reagan '80s when I registered to vote when I turned 18 in 1980, there was no question as to which party I would join. I would join the Republican Party. And for 30 years, I was not only a loyal Republican voter, but very active in the party and I had unique experiences at all levels that culminated when I was 29 in being appointed to a subcabinet level position in Papa Bush, Bush 41's Administration, and Papa Bush was my kind of Republican.

If Papa Bush and those of his ilk were still running the Republican Party, I'd still be a Republican. But by 2010 I'd had enough. Barack Obama was the first Democratic presidential candidate for whom I ever voted. I voted for plenty of D's but that was a break point. It's a long story told in the book but was largely over foreign policy that I got off the GOP train because I didn't believe we were any longer hunting those responsible for September 11.

CUOMO: So you wrote articles over 15 years--


CUOMO: -- and you put them into category. What is it, politics, profiles, life and misc. Misc is always the best category, miscellaneous. SMERCONISH: True.

CUOMO: But you after each of them is you think about where your head would be today on the same topic and that is great value and a lot of people don't do that.

SMERCONISH: Yes, thank you.

CUOMO: Why? And they don't do it because they're afraid. They don't want people to think what I said then was wrong or this, where is my continuity, my consistency and you did it right out of the box. You wrote a piece about hard work, you know, very Reagan Era value and hard work -- as long as you work hard, you'll be fine.


That's not as true as it used to be. And you reflect that in your afterward. How so?

SMERCONISH: So here's the funny thing. I published by my count, 1,047 columns between 2001 and 2016. As I combed through the "Daily News" and "Philadelphia Enquirer" archives, I found a column from 1985 that I forgot I had published. Chris, I was in law school.

CUOMO: It was your first year, something like that?

SMERCONISH: First year in law school; end of my first year.

CUOMO: It was an opinion piece.

SMERCONISH: An opinion piece, right about America being the land of opportunity. Now I still believe that America is a land of opportunity, but that luck has a great deal to do with it. And some get dealt a bad hand from which they never recover. That's a great example of where I -- when I dusted that baby off, of course, I wanted to publish it again with the reflections of someone now 56 years old and taking a look at what I now view of life. I have no problem calling myself out and admitting the many instances where I was wrong in this book.

CUOMO: Well you evolve also. Times change. Situations change. Principles remain the same for people like you anyway, if they were hard set to begin with. The idea of when you started this journey, just after 9/11.


CUOMO: What an interesting time to come into the perspective business.

SMERCONISH: True. And the very first column that I published as a columnist is one that advocates Rudy Giuliani, a name very familiar to you; you just interviewed him again last week. I advocate that he is the appropriate choice to be the nation's first Secretary of Homeland Security. That's how I used my first 700-word column. By the way, in retrospect, I was wrong. CUOMO: Why?

SMERCONISH: Tom Ridge, having nothing to do with his representation of the President, but Tom Ridge who was the nation's first Secretary, tremendous. Hell of a guy. Did a great job.

CUOMO: So you started off in this business. You've done politics. You've run for office.

SMERCONISH: I have. When I was in law school, I ran for the state legislature.

CUOMO: Would you do it again?

SMERCONISH: I've got a lot of kids I'm educating.

CUOMO: That's not a no. I'd like a yes or no if you don't mind.

SMERCONISH: What is this "Cuomo Live"?

CUOMO: That's right.

SMERCONISH: Can't you bring me back and grill me? It's a maybe.

CUOMO: Why - it's all good; so you're not closed off to it?

SMERCONISH: No, I'm not closed off to it.

CUOMO: I push you on that because what a rare commodity you are. Somebody who takes so much time to understand things here but also here and have dealt with the wins and losses down there. That's the trifecta of how you come into your own as an adult.

Your head, your heart and your gumption, let's just say, to be anatomically neutral about it. You have gone through all those phases. You know who you are, what you're about and that's why you believe the things you do and that's why you argue for and against what you do; rare qualities in leaders these days on the elected side.

SMERCONISH: Well, we don't reward people who are evidentiary thinkers and independent in their view. I just don't subscribe and I watch enough of Chris Cuomo to know that we're kindred spirits in this regard. I don't subscribe to those faux ideological boxes; all liberal, progressive or all conservative. It's not how I view the world. It's not how people that I interact with view the world.

CUOMO: Then why do people like that keep getting elected?

SMERCONISH: Because passion rules. It rules the air waves, much as I hate to admit it in the world in which we live and consequently the stranglehold that many of those who stir the pot for a living have over elected officials and primary voters, I think, has distorted the entire process for the country.

CUOMO: The Smerconish family comes from coal country.


CUOMO: In terms of the immigrant process, do you think that your family would have the same success if they came to the country now as they did back then?

SMERCONISH: I would hope so, but I--

CUOMO: Hard won success by the way; no easy path. You'll read it in the book. What I'm saying, what do you think?

SMERCONISH: Right. I think we were very fortunate. My father's side of the family is from the Austrian/Hungarian Empire. My mother's side of the family from the former Yugoslavia. Columns that I've written that are in the book do talk about those roots. I'm fortunate in that I've been blessed with the right area to grow up. I think the Philadelphia suburbs were a perfect match for me but also that somewhere in this DNA that has so many shortcomings is a pretty good work ethic.

CUOMO: "Jokers to the Right, Clowns to the Left." Biased? Nobody is as afraid of jokers as they are about clowns?

SMERCONISH: No, I'm casting equal aspersions on each. Clowns and jokers in my view are sin synonyms for this book title.

CUOMO: So let me ask you something, so this is a blessing and a curse. The blessing with you is that you look at things from both sides. And now because there are very few generalists, very few shows like ours where you bring on both sides; they come on and you go at it. They don't want that. It's frustrating. Don't make me think about why I believe what I believe. It's already engrained. I'm done with this. And you can't be open to the other side if you're in that mind- set. It's a problem.

[09:35:00]SMERCONISH: I think people who hold views that are independent and not ideologically tethered have allowed themselves to be cast as being weak or as in lacking conviction. I have plenty of conviction on a whole variety of issues. I know you do as well. They just don't fit neatly into one side or the other of an ideological spectrum.

CUOMO: When does the next book come out?

SMERCONISH: I think this is it.

CUOMO: What? Why?

SMERCONISH: I think this is it.

CUOMO: This is the only book you have in you?

SMERCONISH: No, this is the only one that matters to me now, how's that?

CUOMO: Let me tell you something. For you to put this kind of work in this. SMERCONISH: Chris, I recorded every column and afterward for That was perhaps the hardest part of all and if that outtake reel should ever see the light of day, I'm done.

CUOMO: Listen, you put a lot of work into it because you are doing it for two causes that mean so much to you. One, public dialogue of having people understand ideas and chew on them.

SMERCONISH: That's true.

CUOMO: And then you are helping kids in the worst kind of battle. What could be better than that?

SMERCONISH: Thank you man.

CUOMO: Michael Smerconish, you are a mentor.

SMERCONISH: Thank you for everything.

CUOMO: You are a mentor and you are a mench.

SMERCONISH: And by the way, good luck.

CUOMO: Thank you. I will need you.

SMERCONISH: The nation needs you in prime time, June 1st.

CUOMO: "Clowns to the Left of Me," like right now, "Jokers to the Right."

SMERCONISH: Wait a minute, wait a minute. That would be you the clown and me the joker.

CUOMO: That's right.


CUOMO: Thank you Smer. Always a pleasure.



SMERCONISH: You can tell I'm proud of the book which comes out next week; as they say, wherever books are sold. My author proceeds will benefit the Children's Crisis Treatment Center, which is near and dear to me. My wife is a board member and the Center is dedicated to addressing the impact of child abuse, neglect, traumatic events, and other challenges to early childhood development and helping children reach their full potential.

Still to come, with the President attacking the NFL and ratings in a spiral, the League has clamped down on kneeling during the National Anthem. Are they making a bad problem worse? And it's commencement season and speakers are using the political moment to make a statement to graduates, should the speakers be calling out the President by name? I chose not to go there.


SMERCONISH: Be active in your communities, vote, volunteer, take ownership of the country because it's your watch.





UNIDENTIFIED MALE: What's your reaction Mr. President?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well I think that's good. I don't think people should be staying in locker rooms, but still I think it's good. You have to stand proudly for the National Anthem or you shouldn't be playing. You shouldn't be there. Maybe you shouldn't be in the country.


SMERCONISH: So that was the President on "Fox" essentially saying if you aren't willing to stand for the Anthem, you shouldn't be playing football. Makes me wonder what other professions he'd say you cannot fulfill unless you stand for the National Anthem. The League's 32 owners decided on Wednesday to overhaul NFL policy on protocol for the National Anthem and under the new rules, quote, "all team and League personnel on the field shall stand and show respect for the flag and the Anthem."

And there's this, "personnel who choose not to stand for the Anthem may stay in the lockerroom or in a similar location off the field until after the Anthem has been performed. plus, a club will be fined by the League if its personnel on the field do not stand and show respect for the flag and the Anthem."

I need to throw a flag on the NFL. It's a mistake. I get why they did it. They don't want to be at war with the President or his red state supporters at a time when television ratings are in the tank. Audiences for NFL games are down 20% from just two seasons ago and according to "The New York Times," quote, "while it's impossible to know how much of that is a result of fans being turned off by the protests during the Anthem, industry experts have said data show the NFL's handling of the issue is at least partly to blame for the drop- off."

Here's my prediction. The NFL just made it worse. First, how long will it take for someone to come up with a standing form of protest? Anybody remember John Carlos at the '68 Olympics? I'll take the over/under on the first week of the new season.

Second, prohibiting the players from taking a knee flies in the face of what the flag represents. I know it's cliche, but this Memorial Day Weekend, remember that people really have died for Colin Kaepernick's right to take a knee. By the way, I don't like him taking a knee. I wish he wouldn't take a knee, but I don't think he should be blackballed for expressing himself.

Instead, I stand with the "The New York Times" editorial board which said that the NFL owners and the President had concluded quote, "that true patriotism is not about bravely standing up for democratic principle but about standing up, period."

Rather than show a little backbone themselves and support the right of athletes to protest peacefully, the League capitulated to a President who relishes demonizing black athletes. Here's my other observation. News coverage says this move was made in seeking to end the controversy that has embarrassed the NFL. Well the only thing I'm positive about is that this has not ended the controversy; this will perpetuate the controversy. This is the booby bracelet principle.

[09:45:00] Remember the bracelets five years ago, a federal appellate court settled a Pennsylvania dispute where two female students challenged their school's ban of bracelets that said I heart boobies. They were in support of a Breast Cancer Awareness Program. The kids loved wearing them, but this one school district made a huge to do over it saying they were lewd.

Well, I knew when this happened that the school was making things so much worse. Usually such a fashion item would be a passing fad like a yo-yo, soon forgotten. But when a school says you can't wear them, kids get their backup and wear them defiantly. After years of litigation about free speech rights the 3rd Circuit Court of Appeals ruled in favor of the kids.

My point is by making this a point of contention and saying you can't do it, they'll perpetuate it and now it will be about who is staying in the locker room? Who is standing in a slouched position? The only thing certain is that the NFL just extended the knee controversy.

SMERCONISH: Still to come -- it's commencement season and speakers seem to be mostly going out of their way to send a message to graduates about the current Administration without saying the President's name. Is that the right way to go?


UNIDENTIFIED MALE: Listen to people you disagree with, without trying to censor them or shout over them and have the courage to say things that your own side doesn't want to hear.




SMERCONISH: It's commencement season, the time of year when speakers of all stripes try to inspire graduates about their role in the world that they're heading into and this year, most speakers have gone out of their way to avoid criticizing President Trump at least by name. The phenomenon was noted by former President Obama speech writer David Litt, who we've had on the program. He wrote a "Daily Beast" piece called "Why Won't a Commencement Speaker Just say the Word Trump?"

Litt wrote this, quote, "As we enter the final few weekends of graduation season, I hope someone tries it. Because while citizenship demands civility, there are times when patriotism requires us to be impolite. This is one of those times. And that's something I think the Class of 2018 would be well-served to hear." Well, I had the chance but I didn't go there. For many other, Trump has been the Voldemort of graduations. Not said by name but they still manage to go after him. Hillary Clinton at Yale brought a Russian hat and made a joke about it but she never uttered his name.


HILARY CLINTON, 2016 PRESIDENTIAL CANDIDATE AND FORMER SECRETARY OF STATE: No, I'm not over it. I still think about the 2016 election. I still regret the mistakes I made. I still think, though, that understanding what happened in such a weird and wild election in American history, will help us defend our democracy in the future.


SMERCONISH: Jimmy Carter, age 93, told those at Liberty University that he heard his crowd was bigger than the previous graduations. That was an obvious dig at you know who. Michael Bloomberg spoke about the importance of an honor code at Rice University. Oprah urged USC Trojans to strike down deceit and be the truth. Rex Tillerson warned that a crisis of ethics and integrity puts American democracy at risk. Apple's CEO Tim Cook spoke to the larger problem -


TIM COOK, CEO OF APPLE: You enter the world at a time of great challenge. Our country is deeply divided, and too many Americans refuse to hear any opinion that differs from their own.


SMERCONISH: But then Senator Jeff Flake, perhaps taking advantage of his lame duck status, broke ranks and he made headlines. Speaking at Harvard Law School, he may not have said Trump's name, per se, but he definitely called him out.


REP. JEFF FLAKE (R) ARIZONA: First the good news -- your national leadership is, well, not good, at all. Our presidency has been debased by a figure who seemingly has a bottomless appetite for destruction and division.


SMERCONISH: The President, himself, weighed in in a commencement address Friday. He was speaking at the Naval Academy to graduates in Annapolis. He criticized those who he says denigrate America.


TRUMP: A growing number use their platforms to denigrate America's incredible heritage, challenge America's sovereignty, and weaken America's pride, but we know the truth, we will speak the truth, and we will defend that truth. America is the greatest fighting force for peace, justice, and freedom in the history of the world.


SMERCONISH: When considering what I would say to graduates at Delaware Valley University last Saturday, I chose not to mention the President by name. My thinking was simple -- this was about the graduates, not about the President. I thought to say anything about him pro or con violated the time and place rule by which I'd been raised. Instead, I addressed the need for graduates to become good citizens.


[09:55:00]SMERCONISH: Like your parents, like your sibling siblings, like your friends, like your faculty, I, too, want you to go forth and conquer your professional goals -- that you be prosperous, fall in love, raise families, be kind, but also that you be good citizens. Pay attention to public affairs. Get out of your bubble and sample a variety of news outlets. Be active in your communities; vote, volunteer, take ownership of the country because it's your watch now.


SMERCONISH: Good lesson for all of us, don't you think?

Have a wonderful Memorial Day Weekend. Remember to follow me on twitter and Facebook and check out my website and catch up with any time on CNNgo and on demand. See you next week.