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'All Across The Nation, Such A Strange Vibration'; What Precedent Will Be Set If Request Made Of Ukraine And China Goes Unpunished?; NYC Makes It Illegal To Say "Illegal Alien"; What's More Accurate: Polling Or Gambling Odds?; Are 2020 Democrats Too Far Left For Independents?; E-Cigarettes Market To Teens Using Big Tobacco Tactics. Aired 9-10a ET

Aired October 05, 2019 - 09:00   ET



MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in San Francisco today. It's just not possible for me to summarize all that occurred in the week now ending. Every day has brought new revelations regarding the impeachment inquiry.

It's hard for me to keep up and I'm paid to pay attention. I can only imagine the challenge for those with real jobs which makes me wonder if it's all too complicated to change the course of American history.

I raised that issue with a constitutional scholar on my Sirius XM radio program this week. I challenged Larry Kramer, the current president of the Hewlett Foundation, the former dean of the Stanford Law School, to present the case that is alleged against the president in a simplified sound bite, recognizing that there hasn't yet been any real fact-finding. He was easily able to do it.


LARRY KRAMER, PRESIDENT, HEWLETT FOUNDATION: The president extorted the leader of a foreign country to gin up evidence against a political opponent.


SMERCONISH: OK. So it can be condensed for easy comprehension, but will it ultimately matter. As additional facts have come to light, this is looking to me much less like a factual dispute, much more like a matter of legal and constitutional interpretation.

Initially, it seemed like the case might hinge on the credibility of the whistleblower, but that original complaint is now largely irrelevant. It was a catalyst to what has since been discovered, the transcript of the call, the text messages capturing the real-time negotiations, all of which provide first-hand evidence of quid pro quo, literally something for something.

And that's in turn been supplanted by the president's see you, raise you asking of the Chinese to conduct their own investigation of the Bidens. In other words, he's owning it. So this is no longer a dispute about what occurred.

The Constitution, Article 2, Section 4 says this, "The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors" This doesn't look like treason or bribery. Is it necessary that it be a definable high crime or misdemeanor? Arguably not.

In Federalist 65, one of those essays which were written by our founding statesman to advance ratification of the Constitution, Alexander Hamilton wrote this about impeachment. "The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust."

That language is designed to capture abuse of office, not just clear- cut crimes and now the real question is what price do Republican officeholders put on their job security? Does that price include the de facto decriminalization of foreign meddling in our elections? What precedent will be set if the request made of Ukraine and now China goes unpunished?

Joining me now is Congressman Matt Gates of Florida. He's a Republican member of the Judiciary Committee. Hey, Congressman, you will be interested to know that social media, you've not yet said a word, is already blowing up, Barbara, by way of illustration, is upset that I would have you on so that you could, quote-unquote, "lie again as you always do." And then there's Freedom and Freedom says like why, Matt, are you going on this television program that promotes DNC talking points? Why Matt? Why? Anyway, I'm glad that you're here.

REP. MATT GAETZ, (R-FL): I'll put Barbara down as a maybe. No, I'm glad to be here too and I'm also glad that you provide a platform for some, I think, academic discussion of these important issues facing the country.

SMERCONISH: All right. Here's my question. You heard my commentary. What kind of a precedent would we be setting for future elections if the president's requests for foreign assistance in our elections is normalized?

GAETZ: Well, I have to reject the premise of the question. I think that the president's context for these discussions isn't forward leaning into the next election. He is attempting to solicit Ukraine support to find out what happened in the last election. It is a retrospective conversation as it relates to the Ukraine and when you look at Zelensky praising Trump for creating a populist rhetoric that was helpful to him in rooting out corruption, I think you see two men who are on the same page frankly trying to leverage against Europe to get Europe to do more for the Ukraine.

SMERCONISH: Well, you say that, but you look at those text messages, I mean, we were leveraging -- our diplomats and Rudy Guiliani were leveraging a meeting with the president, leveraging these monies, you know, leveraging, going so far as to write a statement for him. It seems like we were force feeding him to do what the president wanted to do relative to the Bidens or he wasn't going to get what he was looking for including the aid.


GAETZ: Let's just remember when evaluating this aid that President Obama withhold the -- withheld the aid indefinitely. So this notion that like to withhold the aid is a uniquely impeachable offense I think would be counter to the experience we had under the prior president. I also think that when you look at those text messages you just referenced, there's additional context.

Ambassador Sondland who's going to be testifying before some members of the House in the coming days provided analysis that this wasn't a quid pro quo, that distinctly the president wasn't interested in a this-for-that arrangement regarding this military aid.

And I think that directly answers back the Taylor text message where, remember, Taylor was citing a "Politico" article and there is a -- there is a tactic here that we saw in the Russia investigation. You saw "Fusion GPS" leak stories to "Yahoo News" and then you saw them go back and cite those stories through -- the government cited those stories when trying to validate the "Fusion GPS" work product.

So here you have Mr. Taylor who is citing a "Politico" story that may very well have been leaked by the people trying to make this look like a quid pro quo when there are very legitimate reasons to withhold the aid and if you don't think there are legitimate reasons, then your issue is with President Obama, not with President Trump.

SMERCONISH: Well, but President Obama never said I'm going to withhold aid unless you take a look at Mitt Romney. I mean, I think that the president's defense ...

GAETZ: Neither did -- neither did President Trump though, Michael. I mean, where did ...

SMERCONISH: Well, but ...

GAETZ: ... where did President Trump say that?

SMERCONISH: But President Trump, through the texts, through the whistleblower complaint, which I think the complainant didn't even have benefit of listening to the phone call or see the memo that recast it, but I guess, Matt, Congressman, it's all -- it's all -- it's all saying -- it's all saying ...

GAETZ: You just said the whistleblower complaint was irrelevant. You said that in your opening.

SMERCONISH: But what I'm -- it's irrelevant because so much corroboration has now been put forth. Let me -- let me ask the question this way. If the president -- I'll qualify it as a question. If the president were leveraging American tax dollars for the benefit of first getting dirt on a political opponent, you'd agree that would be crossing a line, right?

GAETZ: Yes, if a president engaged in a quid pro quo or they said you have to give me dirt on your opponent or I'm not going to give you aid, that would be an abuse of power, that would not be acceptable conduct ...

SMERCONISH: So you don't think that happened here?

GAETZ: ... but I think that Russia -- no. Clearly it didn't happen here. What you have is the president and Attorney General Barr working around the world to try to figure out why there was a corrupt Russia investigation that tore our country apart for two years that didn't result in any evidence of a criminal conspiracy.

SMERCONISH: If there -- if it were ...

GAETZ: This is a -- this is an open and obvious thing that Bill Barr even said he was going to do during his confirmation hearings so it shouldn't surprise people.

SMERCONISH: If there were -- I mean, the president's defense is to say, hey, I'm all about ridding the world of corruption. If there were one other instance where the president had withheld or threatened to withhold funding because he first wanted a crackdown on corruption, I think his hand would be strengthened, but I'm unaware of another instance and ...

GAETZ: Oh, no. He's done that. No, he's done that, Michael. He's done that in the -- in the ...


GAETZ: Yes. Check out the Northern Triangle, check out Honduras, Guatemala, El Salvador. There is aid that the president has sort of put in jeopardy there because he wanted to see those governments stop acting in common cause with human traffickers and instead to enhance their border security and their national presence and being a good partner with us. So this is actually a pretty frequent tool the president uses to say, hey, look, America is not going to be the Patsy for the world if you don't clean up your act.

And especially in Eastern Europe. I've had meetings with leaders in Eastern Europe and it's all about U.S. officials trying to explain that if they do not fix corruption issues that there will not be foreign investment and then we look like hypocrites when Hunter Biden is making 50 G's a month for reasons that I don't really understand, but like, Michael, do you believe that Hunter Biden would have been making $50,000 bucks a month from a foreign energy company if his dad weren't vice president?

SMERCONISH: I believe this. Listen. I believe that Hunter Biden probably put his father in a very awkward position in terms of appearances, but that's not a justification for the leveraging of American tax dollars and saying to someone who desperately needs our aid, a foreign leader, you're not getting it unless this investigation takes place. I have a -- wait. I have a political question for you before you leave me ...

GAETZ: Zelensky said the investigation's going to take place, but there's an -- there's and important point in the transcript there that I think refutes your comment ...

SMERCONISH: But why then -- why then -- why -- but ...

GAETZ: In the transcript, Zelensky says it's already my plan to look into this, it's already my plan to look into this company with Hunter Biden. He says that to Trump not as a consequence of any prodding or pressure, but because that's what Zelensky ran on. He ran as an anti- corruption populist and even told President Trump he used some of the pages out of President Trump's political book ...

SMERCONISH: But Congressman, come on.

GAETZ: ... to drain the swamp in the Ukraine.

SMERCONISH: I've read -- I've read all the texts. The texts make it very clear that we weren't even going to give the guy a meeting unless he was first prepared to investigate the Bidens. I have a political question for you though ...

GAETZ: Well, that's why -- that's why Ambassador Volker's testimony is going to be so important to get out because when you read the Volker transcript, you'll see that Volker's saying that what someone says in his text, that there's no quid pro quo, is what everybody believed who was on the team ...


SMERCONISH: Yes. But look at that -- but look at the text ...

GAETZ: Taylor was the outlier citing a "Politico" article.

SMERCONISH: OK. But look at the text. Why is there any reason -- why is there any ...

GAETZ: The texts say there's no quid pro quo.

SMERCONISH: Why is there any justification to take it offline if there -- if you show the next screen, Catherine, put that back up and show the next screen where the guy says hey, you know, essentially let's take it offline now and not continue with this dialogue back and forth. What's to be hidden? Why go offline unless you've got something that you don't want in the public domain?

GAETZ: Well, that's ludicrous.

SMERCONISH: I need to get to my political question.

GAETZ: Some conversations are more -- are more productive when you have them over the phone or in person rather than over text because you're able to get better context ...

SMERCONISH: I don't -- yes, I don't know that it was a productivity --

GAETZ: -- but go ahead with your political question.

SMERCONISH: OK. Here's the political question. Be the first -- GAETZ: But you know it probably wasn't (ph).

SMERCONISH: Be the first to answer my survey question of the day. Put it up on the screen for Congressman Gaetz. This is what I want to know. The president's defense. Is his main objective in the way that he's defending himself to provide a defense or is he really seeking to finish off Joe Biden because he wants to run against Elizabeth Warren? Which of the two is it?

GAETZ: Yes. I think it's the former, not the latter. I've talked with the president about which adversary would be, you know, the one that he would rather face and in a lot of circumstances, you know, you look at Joe Biden failing to remember things, failing to energize crowds. I mean, I feel like sometimes you got to give smelling salts to a Joe Biden crowd just to wake them up a little bit. I think he sees Biden, actually, as the weaker adversary.

So I don't think this is about playing in the Democrat primary politics. I think this is about a defense that shows there was no pressure, there was no quid pro quo, Zelensky says that and we believe the context, the text messages, the Volker transcript and the testimony of Ambassador Sondland coming up will all bear that out.

SMERCONISH: OK. I'm going to let Barbara and Freedom know that they can turn their televisions back on because the segment is coming to a conclusion.

GAETZ: Back on.

SMERCONISH: Thank you, Congressman.

GAETZ: Thanks for having me, Michael.

SMERCONISH: What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I will read some responses throughout the course of the program. What do we have? "Impeachment? Daily train wreck in slow motion." Daily train wreck for whom, D Lewis Place?

A daily train wreck because all of these bits of evidence that are coming together now are telling a similar story of a quid pro quo or because you think in the end, yes, the House will pass articles of impeachment, but the Senate will never convict and therefore he'll be emboldened? That's what remains to be seen.

Up ahead, dozens of stories ran this week with the headline that New York City is banning the term "illegal alien." Is that the full story? Not exactly. I'll explain.

And later, forget the pundits and the pollsters. What can gambling odds tell us about the likelihood of impeachment and the 2020 cycle? We will follow the money.




SMERCONISH: There was a huge uproar after multiple news outlets ran headlines that New York City had banned the term "illegal alien." What's the full story? True the city has issued new legal guidance determining the phrase "illegal alien" is unlawful when used with the intent to demean, humiliate or harass a person and also banning threats to call ICE on someone, quote, "based on discriminatory motive," but it's important to note that this guidance does not affect all kinds of speech.

The anti-discrimination law covers workplace harassment, tenant's rights and public accommodation. Merely calling someone an illegal alien on the street, although I don't know why you would, or threatening to call ICE on them would not be illegal, but the city's Commission on Human Rights says that harassing a store customer by telling them to stop speaking their language and demand that they speak only English, that would be a violation. The place where this discrimination occurs can be fined up to $250,000.

These guidelines have already been put in practice. Last month, a New York judge recommended a landlord pay $17,000 in fines and damages for threatening to call immigration authorities on an undocumented immigrant whose rent was delinquent.

With me now is the New York City Human Rights Commissioner, Carmelyn P. Malalis. Commissioner, thanks for being here. In reading in on this subject in your data, I saw a stunning statistic. Thirty-seven percent of New York City's population was born outside the United States. So this really could have significant impact in New York City.

CARMELYN P. MALALIS, NYC HUMAN RIGHTS COMMISSIONER: Absolutely, Michael. In fact, 60 percent of all New Yorkers have someone who is an immigrant living in their household and I'm no exception. You know, we put out this guidance last week to make sure that everyone in New York City, regardless of where they came from, the languages they speak, how they look, everyone knows that they are protected by our human rights laws.

SMERCONISH: Commissioner, there was an interesting comment from a critic at The Heritage Foundation. Catherine, put that up on the screen so I can read it aloud. "It is bizarre that the city of New York believes it can punish someone for using the words 'illegal alien' when that is the correct legal terminology used in federal immigration statutes and federal court decisions, including by the U.S. Supreme Court." Is that accurate?

MALALIS: It isn't, Michael, and unfortunately not enough people are actually reading the exact guidance. The guidance makes clear that, you know, for there to be a violation, first of all, you know, as you captured, we would have to be looking at a defined relationship in the workplace, in housing, in places of public accommodation and we would also have to be looking at situations in which the employer, the housing provider or the place of public accommodation was using those terms with the intent to demean or harass or humiliate.

This is not new. It is not new conceptually when you're looking at anti-discrimination law, which for years has of course coexisted very nicely with the First Amendment and those protections.

SMERCONISH: But do those words, "illegal alien," do they still have legal significance in statutes and laws across the country? I think that was the point of the critic.

MALALIS: Of course we recognize that that terminology and in fact we mention in the guidance that that terminology is used in statutes and so there are reasons why people would use that. So somebody would have to be using it, again, in the context of one of the defined areas of jurisdiction for the Commission with the intent to humiliate or harass or to denigrate someone.

[09:20:04] Similar to how, you know, in the area of race or gender or disability, people could use other terms, again, with the intend to harass or discriminate against someone and that would also be a violation of the law.

SMERCONISH: So here are some examples. I'll put these on the screen. In a hiring context, for example, an employer may not ask someone who has an accent whether they have work authorization if the employer does not ask the same question of someone who does not have an accent. In an employment context, a hotel prohibits its housekeepers from speaking Spanish while cleaning because it would offend hotel guests or make them uncomfortable. In either of those scenarios, the fine could be $250,000. Correct?

MALALIS: Well, something to make clear here is that in the entire history of the Commission on Human Rights only once, dating back to the 1940s, has there ever been a penalty of $250,000, that high reached. That is the jurisdictional limit that we are able to levy for a discriminatory act.

In fact, in most situations, you know, whether or not there is even a decision to levy a penalty is made by looking at the circumstances of each individual case, including, of course, the size of the entity, the circumstances underlying, the sophistication. In many instances, fines are not even levied.

SMERCONISH: Housing and public accommodation, other areas that would be covered. What's not covered? So that we're providing good information and people understand that where this applies and where it doesn't apply, what scenarios wouldn't be dealt with in this?

MALALIS: Sure. So in most situations involving interactions between private citizens. Again, unless it's part of one of the jurisdictional contexts that we have at the agency, those situations wouldn't apply.

Listen, I'm a human rights lawyer. My background is as a civil rights attorney. The First Amendment is the bedrock upon which a lot of our rights, you know, emanate and of course we want to make sure that people understand of course you still have your First Amendment rights, but of course in the context that are well understood where non-discrimination laws apply, we should be making sure that in the workplace, in housing, in places of public accommodation people have the ability to go about their lives with dignity and respect.

SMERCONISH: How many -- final question. How many cases are currently pending?

MALALIS: There's about 160 cases that are currently pending with our law enforcement bureau involving some sort of discrimination based on national origin or actual or perceived immigration status.

SMERCONISH: Commissioner, thanks for being here.

MALALIS: Thanks so much for having me, Michael.

SMERCONISH: Let's see what you're saying on my Twitter and Facebook pages. This comes from Facebook. "I'm not supportive of the word and thought police type laws. I believe New York has it law." Louis, I think this will be litigated. I'm not sure where it ends up, but I think there's a lot of confusion that I hope we shed some light on as to where it applies and where it doesn't apply.

Up ahead, we're all deluged by polls in this business, but often it's impossible for the pollsters to keep up with the fast-moving news cycle. What if I told you that a better, real-time indicator for the presidential election or impeachment and other issues are gambling odds? We're about to follow the money.




SMERCONISH: Who knows more about impeachment and the 2020 election, pollsters or gamblers?, a New Zealand based website, is a real money political prediction market where traders can buy and sell forecasts about elections, legislation, Supreme Court cases, foreign affairs and other political events. It claims that the odds betters generate in real time provide more accurate insights into political uncertainties than pollsters can.

As with other gambling, the betting dictates what you need to ante up based on other bets. You bet a certain number of cents to win a dollar. So the higher that number, the higher the chance the market says that person will win.

Joining me now is Flip Pidot,'s Senior Marketing Analyst. He was also a 2016 congressional candidate in New York and he co-hosts a podcast on political corruption in New York State. OK. Flip, let's do impeachment first. Impeachment by the House during this term. Put it up on the screen. So $0.71, what does that mean, by the way, $0.71?

FLIP PIDOT, SENIOR MARKETING ANALYST, PREDICTIT.ORG: So this suggests that traders think there's about a 71 percent chance that Trump will be impeached in the House, in other words that the House will pass at least one article of impeachment against him by the end of his term. So as you said, if you buy one of these shares at $0.71 and it turns out to happen, you would -- you would win one dollar. So this is the implied that the traders are saying they think the event's going to happen. SMERCONISH: OK. Said differently, there's a 71 percent likelihood, according to that market, that he will be impeached during his first term by the House.

PIDOT: Right.

SMERCONISH: Now, will he be convicted by the Senate? Put that up on the screen. In comparison to $0.71, it's a lot less. It's $0.17.

PIDOT: Much less. Yes. And this isn't too surprising given that the Senate is Republican controlled and the House is Democrat controlled, but you're actually seeing this market slip a little bit. In the last couple of days with some of the new revelations about new whistleblowers and new conversations, that impeachment number is going a little higher from high 60s to low 70s and yet the Senate conviction number is coming down ...


PIDOT: ... from 20 percent, 21 percent to 17 percent. So, you know, take from that what you will, but it's suggesting that the ...


PIDOT: ... that Pelosi and the House are more likely to act and yet removal from office may be becoming less likely.

SMERCONISH: The market thinks he will be impeached by the House. It's unlikely he'll be convicted by the Senate.

PIDOT: Right.

SMERCONISH: The Democratic nomination. I'm fascinated with this because Joe Biden, widely regarded as the front-runner, but the wagering market, your wagering market, says differently. Explain to me the top two there, Elizabeth Warren and Joe Biden.

PIDOT: Right. So this is -- this is fairly remarkable. You see Warren not only leading, but actually better than 50 percent outright to win the nomination. So we've had Warren in this market leading the pack for a little over a month, but it's really within the last couple of weeks as some of the polling has caught up to that, as Biden's gotten wrapped up in the Ukraine scandal and as, of course, Sanders has suffered from some additional health troubles that you've seen Warren really consolidate this support and she is now not quite prohibitive, but the really dominant frontrunner.

SMERCONISH: Your market thinks that her ascension to Democratic nominee is twice as likely as Joe Biden's. Let me go to --

PIDOT: Correct.

SMERCONISH: Let me go to the Trump re-election. Also fascinating and a bit of a disconnect. So, a 40 cent bid to win a dollar, Donald Trump is the leader but he's

an incumbent. You know, 40 cents, you would expect it to be higher, right?

PIDOT: You would. Yes. And in fact he's only at about 75 or 80 cents to get the Republican nomination, which for an incumbent should be nearly 100 percent. So, he is the favorite here in terms of the field -- the candidate most likely to win but he is under 50 percent, well under 50 percent, which is not where you want to be as an incumbent.

SMERCONISH: OK. But then there's another wager where it's a generic Republican versus Democratic. Put that on the screen. Fifty-seven cents that the Democrats win the 2020 presidential election. Square those two because I don't understand.

PIDOT: Well, see you have Trump trading about 40 cents to win but you have the Republican -- generic Republican candidate here at 45 cents to win. You will see the numbers total to a little over 100 cents.

You need to normalize them and take them down a cent or two a piece. But this, of course, including some odds that a Republican, a non- Trump Republican could win. Whether that's Mike Pence or he may be the incumbent by the time we get to Election Day 2020 or another candidate who could -- who could sweep in and take the nomination. So much has been thrown into disarray with the impeachment proceedings now getting under way that there's so much uncertainty and it's markets like these that can give you a sense, a quantifiable sense, of what's most likely to happen and when and how.

SMERCONISH: I got to get one more in, put it on the screen.

Hillary Clinton, why are we talking about Hillary Clinton? Why are people wagering about Hillary Clinton?

PIDOT: Well, she keeps saying she's not going to run but she's saying she's not going to run on a highly publicized book tour and she keeps explaining why she was a better candidate, why she lost, why Trump is the devil, and why she would do better. So, people I think have learned not to take Hillary's denials or really any prominent politician's denials about their intentions to run at face value.

So they still say not likely to, 17, 18 percents that she jumps in but in terms of her odds of winning the nomination, should she win, traders think she's a force to be reckoned with, 30 to 40 percent likely to win, if she jumps in.

SMERCONISH: Well done. By the way, bet with your head, not over it, isn't that what I'm supposed to say?

PIDOT: Absolutely. Yes. Put your -- leave your partisan leanings at the door. It's all about how to maximize your return on investment and that's why this is such a unique real time, maybe not unbiased but less bias indicator of what the broader public and these traders think is going to happen.

SMERCONISH: Thank you, Flip.

PIDOT: Thank you. SMERCONISH: Let's check in on your tweets and Facebook comments. What do we have? From Twitter, I think.

With Bernie's health a legitimate concern, and polls showing Biden is lukewarm, my money is still on Warren for now.

Look, we wish Godspeed to Bernie Sanders. That market that I'm just discussing with Flip has shifted as a result of his heart attack and the stents and so on and so forth. I hope that he's healthy, hope that he's able to continue to compete.

I want to remind you answer the survey question at this hour.

President Trump's main be objective, the way in which he is responding to impeachment, is he seeking to defend himself, pure and simple that's it? Or is he really using this to finish off Biden so as to elevate more?

Still to come, details about a research experiment conducted by the MIT Election Lab. Fascinating insight into how independents are reacting to the leftward tilt of the Democratic presidential candidates.

And Juul under scrutiny for marketing to teens. They seem to have literally taken a page from big tobacco. A look at how Juul's creators, both graduate students of Stanford, used my guest's studies to hawk their product to young people.



SMERCONISH: Is the 2020 Democratic field moving too far to the left to win over independent voters that are key to taking back the White House? That has been a theory advanced by many observers of the candidate debates. Now, an experiment conducted by a research associate at the MIT Election Lab, Alexander Agadjanian, may provide an answer.

Here's how it worked. A random half of the almost 4,000 participants were given a news snippet that portrayed a more progressive ideology that has emerged at the debates thus far, including policies such as decriminalizing unauthorized border crossings, expanding undocumented immigrants' access to government services, replacing private health insurance with a government-run system, and establishing free public college education for all children from working class families.

The other half of the participants read about unrelated topics. All of the participants then recorded how they plan to vote in 2020. And what they found doesn't bode well for the progressive shift of the 2020 field.

As the research associate points out -- quote -- "When deciding between Mr. Trump and Democratic nominee, voters in the middle -- the independents who could ultimately tilt things in Mr. Trump's favor -- became six percentage points less likely to vote Democratic after reading about the leftward turn compared with the independents who had read the innocuous content."

The study also showed no evidence that the more progressive news clippings made Democrats more motivated to vote or campaign for the Democratic candidate. "The results suggest a double-edged sword, but with one clearly sharper side, the potential of producing Republican gains among a key swing group."

So are Democrats giving Republicans a head start in making themselves a target? This study suggests the answer is yes.

Still to come -- the boom in e-cigarettes is now being nipped in the bud with new worries about vaping health crises and criticism of marketing to teens. Did the leading manufacturer Juul Labs literally copy ads out of big tobacco's playbook? My next guest says yes.


SMERCONISH: At first e-cigarettes look like a healthier alternative to real cigarettes but now vaping is under intense scrutiny as its own kind of danger with reports of lung injury and deaths across the country attributed to vaping. And worse, it's on an exponential rise with young people.

The Centers for Disease Control found that 27.5 percent of high school students used an e-cigarette in the past 30 days. And there are strong indications that this is thanks in part to specific targeting of teens by the vaping industry like big tobacco before it.

At Congressional hearing in July Stanford professor Dr. Robert Jackler, an expert in tobacco advertising, testified that the vape giant Juul had purposefully and directly copied tobacco ads to hawk its products to young people.

The Juul Labs co-founder James Monsees and Adam Bowen were graduate students in product design at Stanford and their master's product was about -- quote -- "Disrupting the tobacco industry through innovation." Jackler says that when he met Monsees last year he accused Juul of ripping off the colors of American spirit cigarette ads for Juul's vaporized campaign and that Monsees did not disagree.



DR. ROBERT JACKLER, STANFORD PROFESSOR: He thanked us for the database that we have of 50,000 traditional tobacco ads on line. He said they were very helpful as they design Juul's advertising. And in fact we know very well having studied tobacco advertising that Juul's marketing faithfully recapitulates the methods used by the tobacco industry to target young people.


SMERCONISH: Testifying the next day, Monsees denied the allegation. (BEGIN VIDEO CLIP)

JAMES MONSEES, CO-FOUNDER, JUUL: I did not make that statement to Dr. Jackler.

I think that unfortunately Dr. Jackler may have misheard my commentary. In fact, the resource that he compiled is a useful resource and at that point we were very interested in using his resource to understand exactly what bad actions those tobacco companies have taken to familiarize ourselves with how not to run a business.


SMERCONISH: Dr. Robert Jackler joins me now. Besides being a surgeon, researcher and professor at Stanford, he and his wife founded a group called The Stanford Research into the Impact of Tobacco Advertising, which has collected over 50,000 such ads which are now in the American History Museum at the Smithsonian.

So, Dr. Jackler, what went on here? They were graduate students. They were working on this project. They came to you because you're this enormous repository of information about how big tobacco advertised.

JACKLER: Well, good morning, Michael.

I think these guys were very smart. The tobacco industry is perhaps unique in the most effective advertising. Creating a product in the 20th century that was essential for all parts of life, from the time you woke up in the morning to the time you went to bed at night.

If you're trying to create a new tobacco product and you want to advertise it, why reinvent the wheel? And in fact I believe it's very clear from looking at the advertising techniques that Juul used that they were very inspired by brands such as Marlboro and Newport and American Spirit and they said let's use those techniques because we know they work exceptionally well.

SMERCONISH: Of course, what has changed since the rise of big tobacco is the advent of the internet and now social media. Where in social media have you seen this rip-off or these trends continue?

JACKLER: Yes, you know, if you're trying to do what Juul professed it should be doing, that is to say trying to improve the lives of a billion smokers, you would be aware that most smokers in America are aged about 30 to 60. So, would you have mature adults. You would have the kind of things that appealed to adult smokers.

But instead they did advertising that had very strong appeal to young people and importantly, the innovation of Juul was they exploited social media. Now, if you wanted to reach adults, you would not be on Instagram. It skews very heavily towards young people.

And what Juul did is it created an enormous up-welling of youthful interest through its social media presence, which eventually became a viral fad where teens all over America felt that Juuling was the thing to do.

SMERCONISH: Dr. Jackler, I'm asking you to generalize but paint for me the picture of today's American youth who vapes. What does he or she look like?

JACKLER: Well, you know it's interesting, if you think about the typical demographic of a smoking teenager, it tends to be blue collared working class demographic, the kids in high school who smokes regular cigarettes, you know, are often the marginalized kids, not necessarily the superstars academically or in sports.

But, you know, vaping is different. It tends to be the affluent kids in the suburbs and because it's expensive. I mean, if you get hooked on Juul and using a Juul pod, which is about $4.00, if you use one every day it requires some $1,300 or $1,400 a year so you have to have discretionary income to become hooked on vaping.

SMERCONISH: I tend to look at things in political terms and I'm thinking this is an issue for 2020. If someone would address and own, how do we unhook from a nicotine addiction so many American kids? Take my final word and respond to that.

JACKLER: Yes. So, this is not a red or blue issue. In fact, there are very few issues that motivate voters more than the well being of their parents. And I think this is going to be a litmus test in congressional districts because you're going to have parents saying, what are you going to do to protect our kids from being nicotine addicted?

It is a true epidemic and I think whether it's red or blue I think that there are parents and the families of these teenagers who are getting hooked on nicotine are going to be very passionate and very politically active this year. I agree, I think it's going to be an important issue in the upcoming election.


SMERCONISH: Dr. Jackler, that was excellent. Thank you so much.

JACKLER: Thank you, Michael.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. And we'll give you the final results of the survey question at If you haven't voted, would you go do so now?

President Trump's main objective in his response thus far to the impeachment inquiry, is it to defend himself or is he really seeking to finish off Joe Biden and elevate Elizabeth Warren?


SMERCONISH: Time to see how you responded to the survey question at Here it is. Political question.

President Trump's main objective in his response to the impeachment inquiry thus far, is it to defend himself or is he really seeking to finish off Joe Biden, whom he fears, and elevate Elizabeth Warren?

Survey says -- 57 percent, interesting, 8,279 votes cast. Fifty-seven -- nearly a 60/40 vote. So, you know what he's really trying to do here? He doesn't want to face Biden, he wants Warren. And that's why he's making the impeachment defense about Biden, Biden, Biden.

I'll leave the survey question up. You can continue to vote throughout the course of the day.

What else, Catherine (ph)? What else came in during the course of the program?

Smerconish, I don't agree with your survey today. I wouldn't pick either choice. Trump has no strategy.


I think he acts on gut instinct all the way. Love the show!

Patricia, I've said about in the past I think he gives good ear. I think he has a very attenuated ear. He knows what strikes a chord at least with his base that comes from his background as a reality television star. And so I think that he's constantly out there sampling different approaches and when he thinks he's struck a chord, then he sticks with it.

What else? What else has come in?

Why can't it be both? He's defending himself by deflection and trying to eliminate someone that he sees as a big political threat.

Terresa, I think you're probably right. But as between the two, I think it's probably more of a political calculus and it seems to be working if you believe those bookies, those odds makers.

One more. I've got time for it, real quick.

If Trump ever does shoot someone on Fifth Avenue, Representative Matt Gaetz would reason that as president, he has the right to do that.

Sandysabean, at the outset of the program I said, half the people are saying why are you putting him on? And then half the people are saying to Gaetz, why are you going on that show? And so it ends.

Thanks for watching. I'll see you next week.