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The President's One-On-One Summit With Vladimir Putin In Helsinki Still Happening On Monday; On Friday, Rod Rosenstein Announced Special Counsel Mueller's New Indictment Of A Dozen Russian Nationals For The Hack Of The Democratic National Committee, Are Sacha Baron Cohen's Stunts Exposing Truth Or Just Pushing An Already Polarized Company Farther Apart, President Nominates Brett Kavanaugh To Replace Anthony Kennedy On The Supreme Court. Aired: 9-10a ET

Aired July 14, 2018 - 09:00   ET


MICHAEL SMERCONISH, HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. The President's one-on-one summit with Vladimir Putin in Helsinki still happening on Monday.

The shadow of Mueller's new indictment of 12 Russians for the hacking of the 2016 election. I'll ask Michael Isikoff, what do we still not know? And the indictments were announced by Deputy AG Rosenstein during President Trump's much anticipated meeting with the Queen Elizabeth II, was the Justice Department trolling him or maybe doing him a favor?

And he was Borat and Ali G, and now Hollywood prankster, Sacha Baron Cohen is back with a new series in which he pranks the entire American political spectrum from Sarah Palin to Bernie Sanders, Ted Koppel to Sheriff Joe Arpaio to Dick Cheney. But did he go too far? I'll talk to one of the victims.


UNIDENTIFIED MALE: That's a first - that's the first time I've ever signed a water ...


SMERCONISH: But first, with regard to the 12 Russian officers indicted for interfering in the 2016 election. I want to challenge one part of the conventional wisdom, namely that the timing poses an awkward diplomatic disaster for the President. To the contrary, it may have done him a favor, that is if he is willing to seize it. Think this through with me, the announcement came yesterday, just three days before President Trump sits down in Helsinki with Russian President Vladimir Putin, to be sure, the anticipation of the Friday mid-day press conference by Deputy AG Rod Rosenstein presented an unusual juxtaposition.

On television screens, the Rosenstein presser was about to compete for attention with the President's formal arrival for a meeting with Queen Elizabeth. But TV's technical directors were spared. Rosenstein was curiously 30 minutes late to announced start time of his announcement giving the President the time needed to complete his review of Queen's Guard at Windsor Castle.

And that's not all that seemed choreographed. Rosenstein then revealed that he briefed the President on the indictments in the days prior.


ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: I briefed President Trump about these allegations earlier this week. The President is fully aware of the Department's actions today.


SMERCONISH: So that means for the last few days, during which time he continued to call the Mueller probe a witch hunt, the President knew that proof to the contrary was coming. Even a few hours before Rosenstein's announcement at a joint press conference with British Prime Minister, Theresa May, Trump said that while he would raise the issue of Russian meddling with Putin, he cautioned that he didn't expect a Perry Mason moment to result.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I don't think you will have any, "Gee, I did it, I did it. You got me?"


SMERCONISH: Rosenstein then spelled out his findings in an unusually specific 29-page, 11-count indictment of 12 Russian military officers. Immediately thereafter, the Deputy AG's revelations prompted some to call for the cancellation of the summit, including Senate Minority Leader Chuck Schumer, who said, "Glad-handing with Vladimir Putin would be an insult to our democracy." Cancellation is not going to happen, but maybe confrontation will.

While the President has been loathed to hold Putin accountable for Russian meddling, he has just been handed the goods with which to do so and it will be embarrassing for him not to. In other words Rosenstein just did Trump a big favor. He just gave him the basis for a reset.

In fact, you have to wonder if it was planned this way. I don't believe in coincidence. Are we really to assume that this indictment just happened to come on the last business day before Trump meets with Putin? No way. This was deliberately timed. At least by Rosenstein to send Putin a message right before the summit and in advance of the American mid-term elections.

Whether President Trump was a part of that deliberation, we may never know. Surely when Rosenstein briefed him earlier in the week, Trump could have at least requested that the announcement be delayed until after the summit, but we will learn on Monday whether President Trump is finally prepared to stop the charade of crying witch hunt and use the tools that Mueller and Rosenstein just handed him to be America's advocate. Maybe he will even demand the extradition for those who have just been indicted for meddling in our election. One can hope.

And that bring me to today's survey question at, will President Trump confront Vladimir Putin with the recent indictments? Vote yes or no and I'll give you the result at the end of this hour.


SMERCONISH: So, what's the take away from the new Special Counsel indictment against a dozen Russian intel officials and what more might be coming down the road? The new charges include conspiracy, hacking the Democratic National Committee, the Clinton presidential campaign and the Democratic Congressional Campaign Committee, as well as money laundering and attempts to break into state election boards and other government agencies.

But there is what it doesn't say as Deputy AG Rosenstein also made sure to point out.


ROSENSTEIN: There is no allegation in this indictment that any American citizen committed a crime. There is no allegation that the conspiracy changed the vote count or affected any election result.


SMERCONISH: Roger Stone's attorney for one was quick to cite this as proof of his client's innocence, is that the case for him others who have not been charged? Joining me now, perfect guest to break it down, Michael Isikoff, chief investigative correspondent for Yahoo News, co-author with David Corn of this best seller "Russian Roulette: The Inside Story of Putin's War on America and the Election of Donald Trump."

Michael, let's drill down on Roger Stone for a moment. Paragraph 44 of the indictment had this language. We'll put in on the screen. I'll just read a sentence. "On or about August 15, 2016, the conspirators posing as Guciffer 2.0 wrote to a person who was in regular contact with senior members of the Presidential campaign of Donald J. Trump. Thank you for writing back. Do you find anything interesting in the docs I posted?" Initially, Stone hesitated before saying that it was him.

Last night, he was with Chris Cuomo on "Cuomo Primetime" and he said this.


ROGER STONE, AMERICAN POLITICAL CONSULTANT: I have testified under oath to the House Intelligence Committee that I certainly a 24-word exchange with the persona, Guciffer 2.0 over Twitter direct messages. Any one - any objective person who will read that exchange, which is included in the indictment will see that based on content, context and timing, it's benign, it's innocuous. So in that respect, I think I probably am the person referred to.


SMERCONISH: Michael Isikoff, what's the meaning of all that?

MICHAEL ISIKOFF, CHIEF INVESTIGATIVE CORRESPONDENT, YAHOO NEWS: Well, it's pretty clear that Roger Stone is in Robert Mueller's sight. He and his - Mueller and his prosecutors and agents have been have asking a lot of questions about Stone from various associates of his. There are still questions about some of Stone's comments during that period in which he seemed to anticipate the release of documents from WikiLeaks.

We now know and this is, I thought one of the more significant revelations in the indictment yesterday that it was that same Guciffer 2.0, a Russian military intelligence persona who provided the documents to WikiLeaks, so that was one of the enduring mysteries about this whole story for the last two years. How did WikiLeaks get the documents that they dumped on the eve of the Democratic Convention that had been hacked by Russian intelligence.

We now know it was from WikiLeaks. WikiLeaks was from Guciffer 2.0. WikiLeaks had solicited those documents and there are text messages or e-mail messages that are reproduced in the documents in the indictment from WikiLeaks to Guciffer 2.0., so at the very same time that Stone is in communication with this Russian military intelligence persona, that Guciffer 2.0 is providing the documents to WikiLeaks.

So I think that raises further questions about Stone's comments during that period that he knew about the coming release by WikiLeaks especially in that early October time period on the Podesta e-mails.

SMERCONISH: In response to the revelations yesterday, Rudy Giuliani, the President's counsel in this context issued a tweet, proclaimed victory of sorts. I want to put it up on the screen. "The indictments Rod Rosenstein announced are good news for all Americans. The Russians are nailed. No Americans are involved. Time for Mueller to end this pursuit of the President and say President Trump is completely innocent."

Seemingly immature, wouldn't you say, Michael Isikoff?

ISIKOFF: Yes, look, Rod Rosenstein also said very clearly that the investigation by Mueller is ongoing.


ISIKOFF: And, yes Mueller does have a habit of doing things in rapid succession. We've seen when he acts, he then tends to follow up. So, we may well be seeing more from Mueller in the coming weeks, we don't know. Certainly, there is the trial of Paul Manafort coming up. There is a lot of anticipation about whether we're going to be finally seeing a report or Mueller will be submitting his report on obstruction. So this could well be the opening act in what becomes a very busy summer.

SMERCONISH: Michael, I want to show you the President as a candidate, July 27 of 2016. And then I want to make a comment. Roll that footage.


TRUMP: I will tell you this, Russia, if you're listening, I hope you are able to find the 30,000 e-mails that are missing. I think you will probably be rewarded mightily by our press.


SMERCONISH: According to indictment, that date was of great significance. What happened? What began on that day?

ISKOFF: Well, as is laid out in the indictment, that very night, the Russian military intelligence hackers began penetrating a server that was used - that Clinton's own personal office used. They also targeted yet more members - the personal e-mails of yet more members of the Clinton campaign. But certainly, the indictment certainly raises the question of whether there is some connection there.

I think, you know, we do have to be a little cautious on this because it's clear the Russians were targeting Clinton campaign officials as early as March of the year. That's when they got access to the Podesta e-mails. So this may be coincidence or not. It certainly establishes a foundation for Mueller to ask President Trump about what he may have known about this if President Trump submits for an interview which, of course, he has been resisting for quite some time.

SMERCONISH: I mean, to your point, this was a very sophisticated, expensive, time consuming, labor intensive process that the switch could not just have been thrown. They were ready to go.

ISIKOFF: Yes, and look, more importantly, and I think this is something that is especially significant on the eve of this summit, these GRU guys weren't operating on their own. They just didn't decide they were going to mount this extensive campaign to hack Democratic political parties and the Clinton campaign and then dump the e-mails.


ISIKOFF: And let's remember, the US Intelligence Community in its January, 2017 report said all of this was ordered by President Vladimir Putin, himself, and ...

SMERCONISH: Good point.

ISIKOFF: And if you read the indictment ...

SMERCONISH: His name wasn't in the indictment. His name wasn't in the indictment. I thought that was odd.

ISIKOFF: Yes, his name isn't in the indictment, but it does say, when you read the fine print, these 12 GRU officer and others known and unknown to the grand jury. So, who are those others known to the grand jury? It does raise the question of whether Vladimir Putin, himself, is an unindicted co-conspirator in these charges. SMERCONISH: Great observation. Michael Isikoff, thank you as always,

appreciate it.

ISIKOFF: Thank you.

SMERCONISH: What are your thoughts? Tweet me @smerconish. Go to my Facebook page, I will read some responses throughout the course of the program. "Will you hold Obama accountable? You say you are fair. We will see. I mean, all this meddling happened under Obama and no one cares. This is why the American people get so frustrated with the media. This is why Trump will win again in the mid-term." And you know what, the President tweeted today on exactly that point. That was his initial response. Here is what I'm looking for, instead of this going on between liberals and conservatives, Republicans and Democrats, what happened to when we were united against a common enemy?

This was terrorism. We were the victim of a terror strike and will the Commander-in-Chief on Monday hold accountable? The presumed perpetrator of that terror strike. Stop all the liberal conservative red state, blue state stuff. Our partisan differences used to end at the water's edge. Now, let's get back to those times.

Sorry, I lost my place. Give me the part that says, what's coming up.


SMERCONISH: Oh, thank you, Katherine. Go vote at Tell me whether you think the President is going to confront Vladimir Putin with the recent indictments. And at the end of this hour, I will give you the result.

Now, we're back on track, still to come, what might happen Monday when Trump meets Putin without advisers. I'll ask a former State Department expert on the region.

And oh yes, there was a Supreme Court nomination this week with a contentious confirmation process ahead. What will we be able to really learn about Brett Kavanaugh's views, and plus, why is Dick Cheney smiling, because he just autographed a water board for a man he didn't realize was Sacha Baron Cohen. I will speak to one of the many celebrities politicos the comedian pranked for his new series.

So what's going to happen at Monday's one-on-one meeting between President Trump and Vladimir Putin with only translators in the room?


SMERCONISH: Observers were already wondering whether Trump would be tough with the Russian leader about the Russian hack of the US election since to date, he has mostly downplayed it and has mostly ignored advisers and relied on his gut instinct in his hopes to forge a personal relationship.

Then on Friday, Rod Rosenstein announced Special Counsel Mueller's new indictment of a dozen Russian nationals for the hack of the Democratic National Committee. Does this mean the tenor of the meeting now changes? Joining me now is David Kramer, former US Deputy Assistant Secretary of State for Russia, Ukraine, Belarus, Moldova - all during the George W. Bush administration. He is a senior fellow in the Vaclav Havel Program for Human Rights and Diplomacy at Florida International University and he is also the author of this book "Back to Containment: Dealing with Putin's Regime." David, thank you so much for being here. React to the timing issue. I find it so curious that this came on the Friday before the Monday summit.

DAVID KRAMER, FORMER US DEPUTY ASSISTANT SECRETARY OF STATE FOR RUSSIA, UKRAINE, BELARUS, MOLDOVA: Well, it certainly is a coincidence at least, and I know, Michael in your opening, you were suggesting it maybe more than that. It will make the situation for President Trump a little more difficult by forcing him to raise this, I hope, although, President Trump as you indicated knew about this Deputy Attorney General Rosenstein indicated he briefed the President on this before he left for his European trip.

And yet the President was rather dismissive yesterday of the whole investigation. He said he'll ask Putin about it and he will get an answer. He didn't expect a Perry Mason moment. I hope the President is much more forceful for that. This should be viewed as an attack by Russia and Russian officials, by the Kremlin and by Vladimir Putin on the United States, on its electoral system, its democracy. It shouldn't be viewed in partisan terms. The President should be angry about this. He should be pushing back on it and should make clear that the United States is going to do something about it, not just sit back and ask questions.

SMERCONISH: If you were if your old role and whispering in the ear of this President, would you not say to him, "Mr. President, demand the extradition of the 12 who were just indicted?"

KRAMER: It's hard to do that because as you know, there is no extradition treaty between Russia and the United States. But I think that the President should make clear that we plan to pursue justice in this case, hold those accountable for the hacking and for other trolling activities, where Russia tries to sew further divisions in this country, tries to tap into very sensitive political issues, whether it's Charlottesville or the shooting by police officers of blacks and other kinds of issues, the NFL protests. This is still going on and the Russians are gearing up to do this in our mid-term elections. They're gearing up to do it in the 2020 elections, and the President needs to make the clear to Putin that there will be a cost to be paid for Russia, including, for example, exposing the wealth of various Russian officials, including the Russian President and see how the Russian public reacts to those kinds of exposures.

SMERCONISH: You have written on a very interesting dynamic, and that is that the President is an outlier in his own administration. Meaning that you've got Pompeo and Nikki Haley and Mike Pence, and General Mattis, who have all been, you correct me, but they've all been very tough in the things they've said and done relative to Russia, but not him.

KRAMER: That's exactly right, and it isn't just rhetoric coming out of the officials you named. We've seen the administration approve lethal military assistance to Ukraine, which the Obama administration didn't do. President Obama refused to provide that assistance. We've seen it stepped up, not a huge increase, but a stepped up advance on sanctions of various Russian individuals. We've seen an increased presence of US military closer to Russia's borders in the Baltic states and Poland.

So we've actually seen some positive reactions and actions on the part of the United States as well as the rhetoric that you described from various senior officials. The outlier as you put it is the President who continues to talk about wanting to have a good relationship with Russia and with Mr. Putin. And I think what the President does, he asks the wrong question, when he says, "Wouldn't it be great if Russia and the United States get along?" The answer to that is obvious, of course, it would. We all would like better relations between Russia and the United States.

The question to ask, in my view is, can the United States have better relations with Russia as long as the authoritarian, kleptocratic regime of Vladimir Putin is in place, without sacrificing America's values and interests, and the countries along Russia's borders, and I think the answer to that unfortunately is no.

SMERCONISH: A final quick comment, if you don't mind. You wrote a provocative essay for "The Post" before the indictments were handed down, and you expressed concern that the President was about to get rolled, essentially because this was going to be, two strongmen getting together and you thought that Putin with his KGB training would know exactly how to push Trump's buttons. Just give me the take away from that?

KRAMER: Sure. I think Putin has been watching how other foreign leaders interact with Trump and he realizes that flattery and praise of the President work well.


KRAMER: He's seen that in the case of Saudi Arabia, the Chinese and others. He will also - Putin will point to Obama and say to President Trump, "Obama is responsible for the current state of relations. We know how you feel about Obama. Let's undo what Obama is responsible for."

And then thirdly, I fear that Putin will appeal to Trump's instincts to look at NATO and the EU and WTO and G-7, and say, "These institutions are obsolete. Let's create a new ones. Let's build a better foundation."

SMERCONISH: David Kramer, thank you so much for your expertise.

KRAMER: Thanks, Michael.

SMERCONISH: Let's see what you're saying at my Smerconish Twitter and Facebook pages? What do we have, Katherine? "I love you, Michael, but what are you smoking this morning? Trump has the opportunity now to confront Putin? The puppet master and his public will be laughing at all of us in their secret meeting. He is a traitor plain and simple." Peter, he can no longer, with a straight face regard this as a witch-hunt, not given the tremendous detail that was put forth in the 29-page indictment. That will be a joke the next time it should come out of his lips.

And I am saying that now is an opportunity that he has been handed by Rosenstein and Mueller for a reset to really be the tough guy that he has told us he is and to say, "Vlad, here it is." He should wave that indictment at Putin and demand extradition treaty or not that those 12 individuals be handed over to the United States, and in so doing, he can recoup so much of the credibility that I think he has lost with so many Americans by treating this as a joke.

I want to remind you to answer the survey question at Will - will, not should, will he do it? Will President Trump confront Vladimir Putin with the recent indictments? At the end of this hour, I'll give you the result.

Up next, the creator of Borat and Ali G is back with his first TV show in a decade, going undercover to lampoon politicians. Will it accomplish anything besides pissing people off? I'm going to talk to one of Cohen's victims, former Congressman Joe Walsh about the - look it - there it is, the pro-Israel Award that the thought he won.


UNIDENTIFIED MALE: So that's the first - that's the first time I've ever signed water ...

SMERCONISH: Hey, even before his new TV show airs, Sacha Baron Cohen is provoking outrage pranking a wide variety of public figures across the political spectrum. On his new Showtime series premiering tomorrow, "Who is America?" That's the title? The star of "Borat" and "The Ali G Show," again, wore disguises, conned his way into interviews. For obvious reasons, the show was kept under wraps until recently, but a teaser showed Cohen offering Former Vice President Dick Cheney a waterboard for him to sign.

Are his stunts exposing truth or just pushing an already polarized company farther apart. Many of the victims had been speaking out. So far, they include Sarah Palin, Dick Cheney, Ted Koppell, Bernie Sanders, Roy Moore, General David Petraeus, Sheriff Joe Arapaio and my next guest, Joe Walsh, the former Illinois Congressman turned radio host. So, Congressman, what was the setup in your case?

JOE WALSH, FORMER ILLINOIS CONGRESSMAN: Hey, Michael, good to be with you. And look, let me say at the outset, I think Sacha Baron Cohen is a funny guy. I thought "Borat" was hilarious, but look, in my case, like in a lot of the cases, he's a funny guy because he gets people to say stupid things. He gets people to say stupid things because he lies to them. In my case, he flew me out to Washington, DC. They knew I was a big supporter of Israel's, and they presented me with this award as one of the Israel's greatest friends, found out later, the whole thing was a rouse and it was a rouse probably just to get me to say some stupid things. SMERCONISH: So, they give you the award, and then what? There were

some aspect of this where it dealt with Israel using kids to protect itself against terror?

WALSH: Yes, Michael, it's just crazy. Look, they flew me out to DC. They put me up in a hotel. They put me in a limo. They sent me off to this studio in Virginia, again, all under the lie that I was getting an award from some Israeli TV station, because I'm a great supporter of Israel, so after they conducted an interview, they had me read off of a teleprompter talking about some of the innovative products that Israel has invented.

And then, they had me read about this four-year-old child in Israel, who when a terrorist entered his classroom, somehow he grabbed the terrorist's gun and held the terrorist at bay. And that was, I guess an example of how Israel trains and arms preschool kids on how to use firearms. And boy, shouldn't we do that in America.

And so I'm reading this, Michael, off of a teleprompter and I'm thinking to myself, "Well, this is kind of crazy, but it is Israel and Israel is strong on defense." We found out the thing was made up. There is no TV station. There was no award. And it's pretty clear that Sacha Baron Cohen wanted me to say something pretty crazy about guns like in America, we ought to arm preschool kids.

SMERCONISH: Did an alarm go off in your head, Congressman?


WALSH: Yes, it did, but again, Michael, it was too late, because I was in the middle of this 15-minute thing talking about all of the great things Israel does. So, the alarm went off, but the alarm really went off about 3:00 that next morning when I said, "Oh my god, I've been duped." And then, we hired an attorney. We looked into it and we found out pretty quickly that it was new special on Showtime that he was producing - Sacha was producing, and we found out as you said, Michael, I wasn't alone. Dick Cheney, Sarah Palin - a bunch of us were duped.

SMERCONISH: So, relative to Governor Palin, look, I feel when I watch it, I am going to have a laugh at your expense and nobody seems to have gotten hurt. But the Palin thing is really troublesome to me because on her Facebook page, Governor Palin said that Sacha Baron Cohen posed as a disabled veteran, heavily disguised himself as a disabled US veteran, fake wheelchair and all, I mean, come on, if there is a line, surely that's over it. Sacha Baron Cohen responded, he said something like the only service I said I was in was the United Parcel Service. I guess, we're going to wait and see, but react to what you have heard about the Palin episode.

WALSH: Michael, good point, and that's part of why I came out this past week, because I do think he crossed the line with Sarah Palin. Look again, he's a funny guy, and what he did to me was funny, and I'll probably end up looking pretty stupid, but that's okay. I'm a big boy, but you impersonate a disabled veteran, he did cross a line and I think Sarah Palin, Michael, was right to call him out. Again, he's got a right to do it, but I like the fact that in this world now, Sarah Palin and others like myself were pushing back just so people when they go into it, and as you said Michael, we'll probably all have a good laugh tomorrow night, but people need to know the truth.

SMERCONISH: So, initially I heard that it was you, and I heard that it was Cheney, and I heard that it was Palin, Arpaio. I thought this politically will probably be too Republican/conservative benefit because once again, it will be the Hollywood elite making fools of people on the right. But apparently, Bernie Sanders is on that list and Howard Dean as well.

WALSH: Right, now again, I'm sure at the end of the day, Michael, it will primarily be attack on us conservatives. He sprinkled in as you said, Bernie and Howard Dean probably make it look balanced but, look, they were going after Mitch McConnell. They were trying to go after primarily Republicans and based on what happened to me, Michael, I assume they're going to go after us for our beliefs on guns and the flag and things like. But, again, this is the world we live in and Michael, I will probably laugh at myself.

SMERCONISH: Hey, yakshemash, if I remember how to say it from "Borat." I have no idea what that means. Thank you, Congressman, I appreciate it.

WALSH: Thank you, Michael.

SMERCONISH: Let's check in on your tweets and Facebook comments. From Facebook, I think, "It shows how stupid the members of Congress are if Sacha Baron Cohen can dupe them. Let's face it, members of Congress are not the sharpest tools in the shed."

Well, Brian, it's obviously more than just members of Congress. Look, I think the guy is unbelievably funny. And I'm prepared to watch, but if I see him, I've got to say this, when I see him sitting there in a wheelchair, impersonating a disabled vet, that's going to piss me off. Because that will be stolen valor. That will cross the line. If there is a line, that's going to cross it.

Still to come, while many think Supreme Court confirmation hearings are empty grandstanding, the upcoming fight over Brett Kavanaugh - what are we really going to find out about his views pertaining to Roe versus Wade?


SMERCONISH: It has been such an insane week of major news that the President's nomination of Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court, it seems like eons ago, but the polarizing debate remains about his views. And since he's young enough to potentially help shape the court for several decades, it's worth discussing what we can and can't learn about his views, such as on Roe versus Wade, once the confirmation hearings begin

Joining me now, the perfect guest, Jeffrey Rosen, the President and CEO of the National Constitution Center. He is also a Professor at George Washington Law School and a contributing editor at "The Atlantic" and author of the Saturday essay, today's "Wall Street Journal," "What We Can Learn From Supreme Court Confirmation Hearings." Hey, Jeffrey, I have a short montage of some recent hearings that I want to show and then ask a question. Roll it.


UNIDENTIFIED MALE: Do you see any erosion of precedent as to Roe?

UNIDENTIFIED MALE: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again.

UNIDENTIFIED MALE: It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed, but it is an issue that is involved in litigation now.


UNIDENTIFIED MALE: Would it be legal in this country to terminate that child's life?

UNIDENTIFIED FEMALE: I can't answer your hypothetical because I can't look at it as an abstract without knowing what state laws exist on this issue or not ...


SMERCONISH: I think you get it. So, advice me as if I were - at least for a moment, a US Senator, what is the most probing question I can ask about Roe versus Wade?

JEFFREY ROSEN, THE PRESIDENT AND CEO OF THE NATIONAL CONSTITUTION CENTER: Well, I think you begin by just asking jurisprudential question directly. You say, in 1992, Justice Kennedy affirmed Roe for three reasons. First, he said, it was embedded in the fabric of society and men and women have come to rely on it. Second, his said the test wasn't unworkable. And third, he said, there were no changed facts or social changes that had called it into question. So you say, "Judge Kavanaugh, do you agree with Justice Kennedy or are any of those three other factors different?"

And then, if he demurrers, as all of those other nominees did, you say, "Judge Kavanaugh, conservative judges like Judge Michael Luttig have said that there are certain cases like Roe that have become super precedents because they've been reaffirmed by justices of both parties, and extended in future cases and embodied in the fabric of American law. "Judge, Kavanaugh, do you believe in the idea of super precedence?" And then, you can be off and running.

SMERCONISH: I mean, you argue in "The Journal" today, and I think very effectively, Jeffrey, that these are not theater, that there is actually a lot of substance there to be gleaned.

ROSEN: It's remarkable how educational these hearings are, and I want listeners to go back and read the transcripts of the confirmation hearings, because you can tell from these hearings that Chief Justice Roberts who was likely to be a pragmatist like Justices Breyer and Kagan, that Justices Gorsuch and Thomas were likely to be originalists, and that raises the question for Judge Kavanaugh, he hasn't used language like originalism and instead, he says, he cares about history, precedent and structure.

So, it's really worth delving into his judicial philosophy whether you support or oppose him, because what he says in these hearings is likely very precisely to predict the kind of constitutional methodology that he will adopt on the court.

SMERCONISH: Given your knowledge of Judge Kavanaugh and his many opinions that he's written, I think nearly 300 for the DC Circuit Court of Appeal, do you expect that he will be in the mold of Justice Kennedy, should he be successful? Will he be the one who will be saying, "Well, we know where four are going, we know where are four are going, it all comes down to Kavanaugh."

ROSEN: No, I think that the real question is, is he likely to be more like Chief Justice Roberts, or like Justices Gorsuch and Thomas and Alito? And it's hard to say based on his records, his recent speech praising Chief Justice Rehnquist suggests a sort of fondness for pragmatism, but I guess, if I had to bet, I think, eventually, he would be more like Roberts. He's not a doctrine originalist. He does seem open to technical and pragmatic solutions, and if he is like Roberts, in what's not only going to be the center of the court, that would be very different than if he's with the most originalist and most conservative justices up off on the right.

SMERCONISH: Interesting. Because I think I hear Jeffrey Rosen saying that it's actually Chief Justice Roberts who is the new Kennedy.

ROSEN: There's no question. He will be the new median justice, just numerically, he is going to be in the center of the court. This is going to be the Roberts court in every sense, and Chief Justice Roberts cares a lot about consensus. He cares about bringing in those liberal justices, Kagan and Breyer to converge around narrow technical opinions that avoids sweeping constitutional rulings, that's going to have huge implications for whether the Roberts court cleanly overturn precedence like Roe v. Wade or the marriage equality decisions, or instead as I think the Chief would prefer, chips away at them, critics would say, guts them, but preserves them so that the court can proceed incrementally and preserve some degree of its bipartisan legitimacy in a highly polarized country.

SMERCONISH: I highly recommend your essay in today's "Wall Street Journal." Thank you, Jeffrey Rosen.

ROSEN: Thank you, Michael, as alaways.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments and the result. You've got one last chance to go vote at on this survey questions, will he - will President Trump confront Vladimir Putin with the recent indictments? Vote yes or no, the results are a moment away.

[09:50:00] SMERCONISH: Okay. It's time. Let's see how you responded to the

survey question at Will President Trump confront Vladimir Putin with the recent indictments? Survey says - oh my gosh, 9,397 votes, that's 94% say no. Boy, do I hope that everybody who voted no is wrong. And for me, what gives me hope is the timing of this.

As I said in my opening commentary, I just can't accept coincidence. I don't believe that on the last business day before this sit down, Rosenstein stands up and indicts the 12 Russian military officers, not where he had already briefed the President, because seemingly, it puts the President into this very uncomfortable position.

Maybe it is by design. Am I naive to think this? Maybe it is by design that they agreed that Rosenstein said, "I'm going to give it to you while you're sitting with the Queen," so that now you get to go and say, "Hey, Vlad, like what the hell? This thing was dropped while I'm overseas and it lays out chapter and verse. I can no longer go home and say witch-hunt. So give me something."


SMERCONISH: Like those 12 guys. Pie in the sky perhaps, but the President - my final word, the President is angry about this. I'm angry about this. He's angry at all of the wrong people. He's angry at the Intel Community. He's angry at the investigative community. It is time he turned that anger toward Mother Russia. I'll see you next week.