Return to Transcripts main page


The Florida Election Mess; Florida Voting Results Still Uncertain; What's The Deal With "Mr. Kellyanna Conway"?'; Conway's Husband A Fervent Critic of President; Should Dems Bet On Beto, Despite Senate Loss?; Interview With The National Constitution Center CEO Jeffrey Rosen. Aired 9-10a ET

Aired November 10, 2018 - 09:00   ET


VICTOR BLACKWELL, CNN ANCHOR, NEW DAY WEEKEND: All right. We've got more news straight ahead.


MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. President Trump in Paris today meeting with French President Emmanuel Macron just after tweeting more criticism of NATO.

Meanwhile, back home, when the President repealed and replaced Attorney General Jeff Sessions the day after the midterms, was it turnover as usual or a red flag of a potential constitutional crisis?

And they're still counting votes in Florida. Is it the usual dithering and delay or is it a sign of fraud? Reminds me of the Bush v. Gore Florida recount when Tim Russert famously reverted to basic technology.


TIMOTHY RUSSERT, AMERICAN TELEVISION JOURNALIST: You wouldn't have those problems with those highfalutin computers, Tom. This is the answer.


SMERCONISH: Meanwhile, is the midterms biggest beneficiary someone who lost? Texan Beto O'Rourke suddenly looking like the best Democratic candidate for president in 2020.

Plus, what if your spouse repeatedly criticized your boss? A breach of marital loyalty? But what if your boss was president? An examination of the confounding case of George Conway, aka Mr. Kellyanne Conway.

But first, just when we think we're done with election madness, Florida keeps dragging us back in. I suspect we all remember our station in life when the Florida votes were being counted in Bush v. Gore 2000. You remember the name Katherine Harris, Hanging Chad or this guy?

In our house, our eldest son was five. Every day he'd come home from his Montessori School to see me watching the CNN coverage of the recount and he'd say, "Dad, are they still counting the votes in Florida?" I'd say, "Yes, no winner yet." I was afraid our son would grow up thinking this is the way that it always is. Americans vote, the process goes on for weeks and it ends with a decision in the Supreme Court.

Well, it's 18 years later. Time flies. That son is now getting a master's degree at Oxford, but in Florida, they're still having trouble counting the votes and it's a national disgrace. And don't get me wrong. I think GOP Governor and Senatorial candidate Rick Scott was out of line, attributing the problems to, quote, "unethical liberals" and he should not have spoken of left-wing activists coming up with more and more ballots out of nowhere. That's a claim the "Miami Herald" editorial board said was an, "evidence free allegation."

It's not a partisan issue. We should all be demanding fair and accurate elections, but Scott's consternation is understandable. Just look at the margin in the Senate race. Scott leads incumbent Senator Bill Nelson 50.1 percent to 49.9 percent. Scott leads Nelson by less than 15,000 votes. Early voting ended in Broward County last Sunday. Through last night, Broward was the only one of Florida's 67 counties that had not yet reported a complete recount of early voting ballots and it's the most democratic leading county in the state.

The delay could be entirely attributable to human factors, not partisan chicanery, but Scott is right to be worried. In Broward County, more than 695,000 people turned in ballots. Only 665,000 plus voted in the senate race. If those results hold, it means that more voted in the race for agriculture commissioner than U.S. senator. Now, that under vote requires examination.

Here's something else on which we should all be able to agree. We need to professionalize this process and it's not just Florida. It's outrageous that in Georgia, Secretary of State Brian Kemp, the person charged with election oversight, did not recuse himself from all responsibility for the governor's race while he himself was a candidate. And no one in America should ever have to stand in line for hours to cast a ballot. Yhat is absolutely third-worldish.

Of course, no one who voted using mail-in balloting in Oregon, Colorado or Washington had to stand in any line and nor are there any significant problems counting ballots in those states.

No matter the outcome, the real harm with the status quo in Florida is that it undermines confidence in our system. It gives rise to conspiracy theory and it might discourage participation from people who think the whole thing is a fix and therefore their vote doesn't matter and that would be the complete opposite of the correct conclusion. Every vote counts.

I want to know what you think. Go to my website,, and answer this survey question. The delay in the Florida vote count is: the result of benign human factors or indicative of fraud? Results at the end of the hour.

[09:05:02] Now, I want to drill down further on Florida where a court decision on the recount is expected at noon Eastern today. While the Senate campaign has devolved into dueling lawsuits, meanwhile also still up for grabs? The governor's race between Republican Ron DeSantis who has 49.6 percent of the vote, Democrat Andrew Gillum, 49.2 percent. He initially conceded on election night. The President has threatened to involve the Feds in finalizing the tally. So how did we get here?

Joining me now is Steve Bousquet, the Tallahassee Bureau Chief of the "Tampa Bay Times," and Rachael Bade, Congressional Reporter for "Politico." What is taking, Steve, so long in Broward County?

STEVE BOUSQUET, BUREAU CHIEF, TAMPA BAY TIMES: Michael, Brenda Snipes' explanation is a heck of a lot of people voted. That's not a sufficient explanation. They're still counting in Broward, but she has until 12 noon today to send a final unofficial ballot count to Tallahassee to Rick Scott's Secretary of State, a guy named Ken Detzner, and he will then order the machine recounts.

SMERCONISH: Is it conceivable that Rick -- that Rick Scott might lose his lead when those votes are tallied in Broward, Steve?

BOUSQUET: It's conceivable, but it depends on how many votes there are still uncounted in Broward, which Brenda Snipes has not disclosed. You do the simple math, it works like this: Bill Nelson got about 69 percent of the vote in Broward County, as you said. There's no place that Rick Scott would less rather have votes still being counted than Broward County Florida. That's an absolute fact and so, you know, it's about a 14,800 vote spread when I checked it about an hour ago and so it's -- depending upon what's out there, Nelson could make that up.

SMERCONISH: Rachael, let's take a look at some else of what has gone wrong in Broward because under the direction of Brenda Snipes, there have been a series of so-called blunders. Unlawfully destroying ballots, secretly opening absentee ballots before they were validated, leaving an initiative off of some absentee ballots and sending voters too many ballot pages, to name a few. Consequently, she becomes easy fodder for, among others, the President of the United States.

RACHAEL BADE, CONGRESSIONAL REPORTER, POLITICO: Right. And who's all -- and the president of the United States has been, you know, calling this whole thing a fraud and accusing Democrats of trying to buy a Senate seat. I mean there's absolutely a history of controversy here. One of my colleagues down in Florida, Marc Caputo, he wrote about how, just a few years ago, there was a ballot initiative on marijuana legalization and for some people, for some reason their ballot didn't include that ballot initiative.

And then there was another circumstance where Debbie Wasserman Schultz in Florida, she obviously a controversial figure at the time, she was the the Chair of the DNC and she had a primary challenge. And after that challenge, her challenger basically wanted to sort of re-go through some of those ballots, but they had already been destroyed and gotten rid of and so there was a lawsuit there. So yes, I think that makes her an easy target and I think it gives fodder to the Republicans who have a lot riding on the line right now. SMERCONISH: Hey, Steve, the under-vote, when you look at the agriculture race versus the Senate race, I want to put on the screen the Broward County ballot. Is it attributable to the way in which this ballot was designed? People can see that under the instructions on the left-hand side of the screen, there's the Senate race. Far more prominent, at the top of the ballot middle column, is the gubernatorial race. Do you think it's as simple as the way in which the ballot was designed to explain the under-vote?

BOUSQUET: It certainly looks that way, Michael, but I'm skeptical because the design of the ballot in Florida must be uniform in all 67 counties. Every county had those instructions at the top. There may be some, you know, anomaly with the the font size or something that Brenda Snipes used in Broward County.

Another factor here that's really puzzling is that a political consultant named Matt Isbell who studies this stuff and is a data geek, he noted that the vast majority of the under-votes is concentrated in one part of Broward County, southeastern Broward County, which I think is the congressional district of Frederica Wilson, a Democrat who did not have an opponent in this year's election so that her race doesn't appear on ballots in Broward.

You know, the sample ballot or the typical ballot that we see in the media shows the Nelson-Scott race and right below it Debbie Wasserman Schultz's congressional race. She did have an opponent. She represents much of Broward County. So it's still a mystery ...

SMERCONISH: Rachael, from the outside looking in, it's hard to determine whether it's the result of nefarious conduct or just some level of ineptitude.

BADE: I mean, there's no -- there's no evidence yet that this -- that we can see so far that there is some sort of fraud going on here.

[09:10:02] I know Republicans keep using that, but, you know, I think we're just going to have to wait and see. I think Florida officials are clearly going to have to look at how they do this process and, you know, clean it up, fix it in some way shape or form so we're not in this position again.

But you know what, here in Washington, it's sort of interesting because we are watching Florida and Arizona very closely, two Senate races that have yet to be called. And right now, we know Republicans have a 52 seat majority in the Senate and, you know, it could be as much as 54 if they win both of these seats. And while two senators might not seem like a lot out of 100, that is the difference between, say, Obamacare repeal passing and Obamacare repeal failing.

And you know, the President just got rid of Jeff Sessions. That means he wants to appoint a new Attorney General at some point. He's been talking about cleaning house and those two votes are really critical for Mitch McConnell in terms of replacing the cabinet for the President and getting people confirmed. So there are a lot of people up here in Washington waited with sort of bated breath about how this is going to go down. SMERCONISH: Steve Bousquet, how does this end?

BOUSQUET: This ends -- this ends very badly for someone and it's going to end badly for Brenda Snipes I think. It's going to end with the spread between Rick Scott and Bill Nelson being even closer than it is now. If the numbers change, and they are very likely to change, it's going to give rise to more phony conspiracy theories about things.

I want to mention a couple of points if I can that have not gotten the attention they deserve. Number one, Rick Scott's administration. He controls the state election apparatus. He assigned or his office assigned two observers to Brenda Snipes' election office. That's a routine thing. They go around and make sure there are no problems and to make sure that the election's being run properly. We heard nothing before Election Day from Rick Scott's administration that these observers found anything that was -- that was a problem.

Number two, under Florida law, Michael, the governor of the state has the power to suspend from office any elected official for, quote, "neglect of duty" and, quote, "incompetence." Now, you could argue it either way, but there's a -- there's a -- there's an adequate record out there about serious performance issues with Brenda Snipes. Rick Scott chose not to do that. Brenda Snipes was appointed to her current position by Jeb Bush, a Republican governor, in 2003. She's been elected four times as the Supervisor of Election in Broward County.

So this is going to drag on. There are court hearings today. Several news outlets have sued Susan Booker, the Palm Beach County Supervisor who has banned cameras from some of the ballot counting operations. It's getting uglier and, as you said, it undermines public confidence in voting and that's a terrible thing for this country. Ever since the recount, which I covered, this state has worked very, very conscientiously to improve the credibility of voting and voting machinery in this state.

SMERCONISH: That is a great report. Steve, thank you. Rachael, thank you.


SMERCONISH: We really appreciate your being here.

BADE: Thank you.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I will read some throughout the course of the program. Catherine, what do we have?

"Smerconish, stop feeding this idiotic conspiracy. You should be better than that." Hey, Real Metallicarl, I'm not feeding it at all. I'm dispassionately looking at what's going on in Florida from the outside looking in and I think that's the way in which we just presented it. I'm asking people to weigh in on my survey question today, as a matter of fact. I want to know how they answer this question. The delay in the Florida vote count: the result of benign human factors or indicative of fraud? The president very quickly -- in fact, Catherine, can you put up that tweet that the President sent out? I mean, the President has reached his conclusion. I'll show you exactly how he's tweeted on this matter already. I'm -- yes. "As soon as Democrats sent their best election stealing lawyer, Marc Elias, to Broward -- blah blah blah -- expose the fraud."

Rick Scott has already come to that conclusion. I've not come to that conclusion, but nor am I unwilling to say there's a problem in Broward County. It's the only one of Florida's 67 counties that has not yet finished tallying its early vote and I think that's disgraceful. We're better than this and we should have learned our lesson after 2000, but I'm not quick to call it fraud. That's his mistake. I'm an evidentiary guy. I'll wait till all the data is in.

Up ahead, why is the husband of one of President's closest advisors one of the President's most vocal critics? The intriguing case of the man Trump called Mr. Kellyanne Conway.

And even though he lost the Texas Senate race to Ted Cruz, is Beto O'Rourke the best presidential timber the Democrats have for 2020? His concession speech -- well, it felt like a rallying cry.


BETO O'ROURKE, UNITED STATES REPRESENTATIVE OF TEXAS' 16TH CONGRESSIONAL DISTRICT: Not a dime from a single PAC. All people, all the time in every single part of Texas.

[09:15:02] All of you showing the country how you do this. I'm so ******* (ph) proud of you guys.



SMERCONISH: You remember the controversy of the anonymous "New York Times" op-ed piece from inside the White House? Well, another piece ran this week in "The Times" that was also riveting as much for who wrote it, only this time the person was not anonymous. "Trump's Appointment of the Acting Attorney General Is Unconstitutional," was co-written by Neal Katyal and George T. Conway III who "The Times" identifies as, quote, "a litigator at Wachtell, Lipton, Rosen & Katz in New York, but to the world he is better known as our President referred to him Friday, this way.


UNIDENTIFIED MALE: Is Kellyanne's husband wrong?


UNIDENTIFIED MALE: Kellyanne's husband wrote that the appointment (ph) was unconstitutional.

TRUMP: You mean -- you Mr. Kellyanne Conway? (END VIDEO CLIP)

SMERCONISH: That's right. One of the President's biggest critics is the husband of one of the President's staunchest defenders. For many months, George Conway has been tweeting and retweeting a storm of anti-Trump pieces. For a presidency which puts such a premium on loyalty, this seems remarkable. So what's going on here?

[09:20:02] Joining me now is "Washington Post" feature reporter Ben Terris who wrote the terrific piece, "She works for Trump. He can't stand him. This is life with Kellyanne and George Conway," and veteran "Washington Post" columnist Sally Quinn. Ben, I'll begin with you. He wept when Trump was elected in a good way, but then had a change of heart. What was the breakpoint?

BEN TERRIS, FEATURE REPORTER, THE WASHINGTON POST: Well, I don't think there was just one breaking point. So he was a supporter of Donald Trump's. He actually was the person that introduced Kellyanne to Donald Trump way back when when they were living in his a apartment in New York City in one of the Trump Towers.

He was a huge supporter, but then, you know, things went off the rails pretty quickly in the Trump presidency and I think even though he was considering joining and being a member of the Department of Justice, it just -- it quickly unraveled. The the Comey firing, the investigations and I think he just saw somebody that he couldn't fully put his support behind.

SMERCONISH: Let me put on the screen something that Ben wrote. I'd actually like Sally to react to it. Ben wrote this, "The Conways, like the rest of the country, have been jolted by the Trump presidency. They love each other, are exasperated by each other, talk about each other behind each other's backs. They share a roof and live in different bunkers." Sally, there are a lot of American couples like that, only one of them doesn't work for the President of the United States.

SALLY QUINN, AUTHOR AND JOURNALIST: Well, I think one of the things you can do is compare them to a James Carville and Mary Matalin who were the famous couple. She was a conservative working for the Bushrs and Carville was a very famous Clinton supporter, worked for the Clintons and they wrote a book called "All's Fair," as in love and war.

But I think that the difference between Mary and James and what's going on with the Conways is enormous. I think it's a totally different circumstance. I mean, we used to say, how can James -- I know James and Mary very well. I love them both and they're both, I think, just incredibly honest, honorable. They have a lot of integrity. They have a lot of decency. They just happen to disagree on how things should play out in terms of their politics.

Well, I think the difference between them and the Conways is that it's a difference of ethics and values and morals. This is where I'm confounded by their relationship because I think that, you know, people sort of say and Kellyanne even said in Ben's terrific piece that what he -- what George was doing by criticizing the President was disrespectful and I think people sometimes think it's disloyal to her.

But I would argue that it's the other way around, that Kellyanne basically is being disloyal to what their relationship started out being, which is two people who cared about their country and who had the same values and ethics and morals. And I think that there's no way that you can support Donald Trump given what he's done in the last two years. I mean, you know, separating children and parents at the boarders, Charlottesville, you name it. You know, the lying, all of that kind of thing.

Those are serious, moral issues and to be married to someone who defends those issues I think would be untenable and so I find that what George is doing basically is to speak out what he feels is totally everything that's against what he stands for and that, in a way, Kellyanne is the one who's being disloyal to him and to the ethics and the values and the morals that they set up for themselves and shared and hopefully share with their family.

SMERCONISH: Ben, how tolerant, as far as you know, is Kellyanne of this? I can't, for example, imagine that she was shocked when she opened up her copy of "The New York Times" and saw the piece that I'm holding in my hand. I mean, does he clear these things with her? What do we know?

TERRIS: Well, I know that she's frustrated by it. She did tell me when I talked to her over the summer about the relationship that she found it disrespectful to the marriage and she kind of compared it to marriage vows, that it was a breaking -- almost a breaking of marriage vows. You know, they have to be loyal to each other in marriage and this felt disloyal to her. He definitely does not clear everything he tweets and writes by her because she would say no to most of these things, but I think he's frustrated as well.

She's frustrated by what he's writing. but he's frustrated by the fact that he loves his wife and thinks that she's incredibly talented and believes that there's a man that she's working for that doesn't deserve her talent. So his frustration is not just with Kellyanne, it's often with the President too.

SMERCONISH: Sally, I have just 30 seconds left, but I'd like to posit this to you. Here's one thing I'm confident of: it's going to make for a hell of a book someday.

[09:25:03] QUINN: Another love and war, I'm sure, but I think in the end, either she's going to have to leave Trump or I don't see how the marriage will survive.

SMERCONISH: Well, we hope it survives. We want -- we want everybody to get along. Thank you. That was really terrific and interesting. Let me see what you're saying at my Smerconish Twitter and Facebook pages on this issue. Catherine, what do we have? "Smerconish, it's disrespectful to call George Conway Mr. Kellyanne Conway. It's not cute. It's dumb and you sound like Donald Trump. Bad."

OK. BlackTexasMule, so now for -- let me get this straight. For now covering the President with his own words, I'm equally reprehensible? By that standard, it would mean we don't cover the things that he says that you find objectionable.

Still to come, when the President fired Jeff Sessions and replaced him with a loyalist, some were again raising the specter of a constitutional crisis. Is that accurate? I will ask constitutional expert, the President of the National Constitution Center, Jeffrey Rosen.

And even though he lost the Senate race in Texas this week, might Beto O'Rourke be the Democrats' best hope for 2020? A British gambling site says so and he seems to have impressed even Triumph the Insult Comic Dog.


TRIUMPH THE INSULT COMIC DOG, PUPPET VOICED BY ROBERT SMIGEL: Thank you, Beto. I saw the speech and I love the way you are anybody by Ted Cruz.

O'ROURKE: Thank you.

TRIUMPH THE INSULT COMIC DOG: Tell me this, Beto. Does it concern you that half your base thinks they can vote for you through Instagram? With the uncertainty surrounding these voting missions, is it now more important than ever for Democrats to go out there and vote twice?




SMERCONISH: Is Texas congressman Beto O'Rourke losing the Senate race actually a stepping stone to him being a serious presidential contender? After O'Rourke lost to Ted Cruz 51-48 he gave a rousing concession speech which, by the way, included the f-bomb, a political savvy friend of mine send me this e-mail election night, law professor Shanin Specter.

"Beto won tonight so long as he keeps going and runs for president right now. It's very simple. He's the only person to capture the imagination of Democrats nationally since Barack Obama. He must run, he will run. It's been done. House member loses for the Senate and wins for President -- Lincoln and George H.W. Bush."

Some think he'll run for the other Texas Senate seat in 2020 currently held by the GOP John Cornyn. But will Texas really get that much bluer in two years? Joining me now to discuss veteran Texas journalist Mimi Swartz, executive editor of "Texas Monthly" magazine who wrote this "New York Times" piece "The Success In Beto's Failure."

Mimi, I loved the last line in your post mortem. You said this, "Most Texans know that when you fall off a horse the best thing to do is get right back on again." I guess the question is which horse does he get back on?

MIMI SWARTZ, EXECUTIVE EDITOR, TEXAS MONTHLY: I know hope he gets back on the Senate horse.

I think running for president -- I know that Trump has proven that anyone can run and anyone can win, but I would really like to see him run for the Senate. I think he's got a better shot there. It's a little more reasonable and I think he's proven that he can do it.

He came so close this time if you compare this election to for instance when Wendy Davis ran against Governor Abbott and he just smeared her. So I think that he's proven that he can make new voters in Texas.

He has also proven that he can raise money nationally. But I think it's a little premature to running for president if we're -- if we're living in a rational universe.

SMERCONISH: Is he fully defined -- in other words where on the continuum of Democrats if Biden is the more centrist of the potential --


SMERCONISH: -- presidential contenders and Bernie Sanders and Elizabeth Warren are far to the left where would Beto O'Rourke be or don't we know?

SWARTZ: Well, I think that's a good question and I think we don't quite know. I think Cruz tried to paint him as this crazed leftist who was going to let terrorists cross the border and that was really ridiculous.

But I think he's -- he's got to tell us a little more about his policies. I think a friend of mine was joking that he sort of ran on the hopey changey ticket. And I think to some extent instead of letting his opponent define him next time he needs to define himself more.

You know, we can all divine what he means. Hmm?

SMERCONISH: A criticism of Beto that I've read repeatedly in the blogosphere post mortem is that he never made the usual tether back toward the center for the general election. Comment on that.

SWARTZ: I'm not sure. That's a hard call. I think the "Politico" story for instance really criticized him for that but a lot of candidates won nationally because they didn't tack toward the center. And in Beto's case I'm not sure.

I think he could have maybe gotten out more people of color, he could have gotten out more women. I think it's just -- it was really a numbers game. The election was so close. I think any particular group could have come out just -- and pushed him over the edge just a little bit. But when you look at what he did down ballot Harris County in particular is incredible and that was he had incredible coattails and those people were of all democratic stripes.

[09:35:11] I think people went in and pushed the lever for Beto and just decimated the Republican Party here in Houston and Harris County. There's not a judge left.

SMERCONISH: OK. Mimi, how about this? It was a "SiriusXM" caller who called into my program Wednesday or Thursday and said, if you look at his assets and liabilities, assets telegenic, assets, you know, Obama-like in a way in which he can inspire, he can raise a boat load of money but maybe thin on the resume as a liability. Isn't he the perfect running mate for someone much more seasoned and older without perhaps the same level of charisma i.e. Joe Biden?

What if you put the two of them together?


SWARTZ: I'm sure you can see my face falling. I would love to see him run as a vice presidential candidate with someone a little newer, fresher, younger.

I think this election has shown that we're -- that there is a Democratic branch and there are other people that we can choose so I think -- I love Joe Biden but I think if you're trying to get -- to grow more Democrats I think maybe there are some other candidates that might work better.

SMERCONISH: We shall see. I think my friend had the right idea.


SMERCONISH: I have to say I think he's got a pretty interesting insight. One thing for sure you've not seen the last of Beto.

Mimi, thank you so much --


SWARTZ: Absolutely not. Thank you.

SMERCONISH: Let's check in on your tweets and Facebook comments. What do you got?

I think this comes from my Facebook page.

"Beto has the Kennedy it factor." Patrice, I think that's what my friend was getting at. There's a quality out there that's hard describe.

By the way I give credit to those who are conservatives and have that same level of charisma. But, you know, I heard what Mimi said the lesson was about this election. I don't disagree with her I think that a lesson we've also learned that you've got to be able to energize a base and this guy can energize a base.

You've also got to be able to win general elections. I want to remind you to answer the survey question at this hour. "The delay in the Florida vote count. What is it? Is it the result of benign human factors? You know, the stuff happens. Or indicative of fraud?"

Still to come. Some critics of the president have been warning of an impending constitutional crisis from before he even took office. Did this week's repealing and replacing of Jeff Sessions prove their point. I'll ask the president of the National Constitution Center that would be Jeffrey Rosen.



SMERCONISH: Are we headed for a constitutional crisis? My next guest points out that may depend on the definition of constitutional crisis. Some say it should be limited to blood in the streets as in the case of the Civil War.

But short of that as today's "New York Times" put it even for this president it was a remarkable week of attacks on American institutions. There are lots of serious constitutional questions on the horizon. The least of which is does the president having vanquished Jeff Sessions and inserted Matt Whitaker now seek to fire or curtail Robert Mueller.

Joining me now is Jeffrey Rosen the president and CEO of the National Constitution Center, a law professor at George Washington University.

Jeffrey, let me begin with this. Friday a federal appellate court -- we can put the "Politico" story up as matter of fact -- said they want an explanation from Mueller as to the impact of this Sessions-Whitaker shakeup. Do explain.

JEFFREY ROSEN, PRESIDENT AND CEO, NATIONAL CONSTITUTION CENTER: So the federal court is considering whether Mueller's appointment was unconstitutional including under the appointments clause of the constitution Article II Section II which says that the president and the Senate together have to appoint principal officers but inferior officers can just be appointed by the president.

So the question is, is Mueller a principal officer? Is he being properly supervised by Rod Rosenstein?

Now that Rosenstein has been replaced by Whitaker the court wants to know has that changed the situation and is he more or less supervised?

What's so interesting though is that now people are saying that Whitaker's appointment was unconstitutional under the same provision of the constitution which requires the president to appoint principal officers. The argument on the other side as the Supreme Court said in 1898 is that the president can fill vacancies for a short period of time.

So there's a very central question about whether Mueller and Whitaker's appointments are constitutional and that's what the court in the Mueller case is deciding.

SMERCONISH: Without making our eyes glaze over and I know you won't what is--

ROSEN: I thought that was interesting.

SMERCONISH: -- Marbury versus Madison? No, no, no. That was interesting but get ready for this one.

ROSEN: Yes, yes.

SMERCONISH: What is Marbury versus Madison and what relevance does it has to Mr. Whitaker?

ROSEN: It's the central case in American jurisprudence that says that the Supreme Court has the power to strike down unconstitutional laws. It's the very foundation of the Supreme Court's power and what Mr. Whitaker said is that Marbury verses Madison might have been wrongly decided.

I can say in a bipartisan spirit that that is an out of the mainstream view. Almost all liberal and conservative scholars agree with Alexander Hamilton in Federalist 78 presumed that the Supreme Court has the power to strike down unconstitutional laws which John Marshall recognized in Marbury versus Madison.


So for an attorney general to question the ability of courts to strike down unconstitutional laws is to strike at the very heart of the federal judicial system.

SMERCONISH: And to go back to your first point is this not precisely the kind of an issue that you would see senators questioning a nominee about if there were to be a hearing about said nominee but in the case of this particular individual he hasn't received Senate confirmation like Jeff Sessions did in the permanent role for the position?

ROSEN: That is precisely right. That's the very purpose of Senate hearings and that's why the constitution says that the president has to submit his nominees to Senate consideration.

Questioning Marbury versus Madison, threatening to defund the special counsel, questioning the constitutionality of the special counsel itself, these are all views that in ordinary situation the Senate would examine and that's another reason that some people are saying that Whitaker's appointment raises constitutional questions.

SMERCONISH: OK. And so do all of these -- this and a myriad of other legal issues does Jeffrey Rosen believe ultimately get resolved in recently having been joined by Justice Brett Kavanaugh, Supreme Court of the United States?

ROSEN: Yes. There will be many issues that are likely to be resolved in the Supreme Court of the United States including, what happens if Whitaker refuses to authorize Mueller to issue subpoenas? What if Mueller writes a report but Whitaker refuses to share it with Congress? What if Congress issues subpoenas to Mueller himself to testify and the president exerts executive privilege?

The National Constitution Center and America are going to be busy for the next year sorting through all of these incredibly important and open constitutional questions and the Supreme Court is very likely to decide some of them.

SMERCONISH: And may I say for health reasons, not partisan reasons we hope that they are doing so with Ruth Bader Ginsburg I know with whom you are co-authoring a book. She had a fall this week. We wish her God speed in her recovery, right?

ROSEN: Yes. We're so excited to be writing a book, "Conversations With RBG," which will come out next year. And she's very well.

I expect her to be back on the bench next week. She is a marvel and so glad that she is recovering very well.

SMERCONISH: Jeffrey, always a privilege to have you here.

ROSEN: Likewise. Thanks so much. See you soon.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments and the results of this survey question. This is your final shot to vote to be included in the tally I'm about the deliver.

"The delay in the Florida vote count. What's driving that? Is it the result of benign human factors or indicative of fraud?"

Go vote at



SMERCONISH: This is going to be interesting, time to see how you responded to the survey question of the day at

"The delay in Florida vote count due to what?" Survey says 9,857 votes cast. The result of benign human factors, meaning stuff happens, 74 percent. Indicative of fraud, 26 percent. Very interesting. Three-quarters say the stuff happens explanation.

OK. Catherine (ph), how many tweets and Facebook comments did we get about my coughing fit in the "a" block. None? OK.

The audience is being very kind to me. That's never happened to me, in my radio studio, I have a bottle of scotch should that ever happen because it clears the pipes. I don't have anything like that here on TV. I have Wawa coffee. That's all.

What did come in during the course of the hour? What do we got?

"Smerconish, Florida should join the 21st century and get rid of the paper. Hanging Chad won't mind." Lawrence Reid, I go further, I would say we should all emulate Oregon, Washington, and Colorado. Go mail in.

What else came in?

"Smerconish, did it ever occur to you that Kellyanne Conway feels the same about her husband and just can't say it aloud because she works for Trump. And just maybe Kellyanne is anonymous."

Yes. Kellyanne, I thought for sure maybe it raises the stakes that it was Kellyanne who was the anonymous essay writer for the "New York Time." But candidly I think what it most reveals is that their marriage is a lot like many of our marriages, you know, we don't all agree lock step on every particular issue.

What else?

"Opposites attract. I'm a progressive, my wife is Republican. Not that strange."

Well, Myland, that kind of makes my point. What I find interesting is the argument as to whether he should be keeping his powder dry in deference to her while she's in that role. But as I said to Sally Quinn, I am confident of just one thing relative to the Conways, that becomes a book.

And of all the books that will be written by the insiders, that's the one that I think they will be great interest in. Next.

"Smerconish, your self-righteous self couldn't help but needlessly point out that Beto dropped the f-bomb?"

"Your self-righteous self couldn't help but needlessly point out that Beto dropped the f-bomb?"

Hey, Holly, I don't know what that means. I drop the f-bomb all the time. I'm feeling like dropping it right now in responding to your tweet, but I won't.

I thought it was deliberate on his part, and I am not -- and I'm not being critical of it. I just noted it. I mean, how often do you see a Senate candidate drop the bomb in the course of making in this case a concession speech? It was very unusual.


And so I thought it was comment worthy. And by the way one other thing and I said this on radio, it got more applause when he told the audience he was so f-ing proud of them, it got more applause than any other part of his concession statement.

I don't find the word particularly offensive and I am not offended that he used it either. But it was worthy of mention, don't you think?

OK, gang, you can catch up with us on "CNNgo" and "On Demand." I'll see you next week.