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Is Conservative Media Turning Against Trump?; Can Presidents Ever Ask Another Country To Investigate A Rival?; Why Is Barr Investigating Origins Of Russia Probe?; Why Twitter Mob Goes After Ellen; Is Pelosi's Impeachment Strategy Too Narrow? Aired 9-10a ET

Aired October 12, 2019 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(COMMERCIAL BREAK)

MICHAEL SMERCONISH, CNN HOST: "Kick them when they're up, kick them when they're down," Dirty Laundry. You remember. Don Henley, 1982. I'm Michael Smerconish in Philadelphia. President Trump's impeachment by the House of Representatives seems increasingly likely, setting up a trial in the Senate.

How Republicans sitting as jurors handle their responsibly might be dependent upon the party's leadership, but I am not referring to Majority Leader Mitch McConnell and his cohorts. I'm talking about the conservative media where some cracks have recently appeared in the president's firewall.

Over the last 30 years, this triumvirate of talk radio, "Fox News" and the "Drudge Report" have supplanted the conventional Republican party apparatus. This is the glue of the GOP, where the base gets its guidance and it's marching orders and the influence is especially felt in primary season in closed primary states. That's why it's significant that at both "Fox News" and the "Drudge Report" there have recently been signs of discontent with the president.

Donald Trump's candidacy, well, that was welcomed at "Drudge" with encouraging headlines like these, "The Donald goes for the White House," "Trump rocks race," "Now they take him seriously." And after he was elected you get, "Trump rocks the house, five-minute ovation," President for 10 weeks. Give him a break."

Things have recently changed. Now it's, "Transcript released, Republican cracks emerge," "Fox shocked, 51 percent want Trump removed," and this ominous photo, "Fear, whistleblower asks to testify in writing." Today, this morning, the front page, how Shepard Smith is leaving, "Trump critic exits, colleagues stunned, president celebrates."

Ironically, "Drudge" became the go-to source for conservatives in the last American impeachment process, trumpeting every negative development for President Bill Clinton. In January 1998, you'll remember it was "Drudge" who first revealed that "Newsweek" had killed a Michael Isikoff story on the White House intern scandal hours before publication. And then in 1999, that NBC's "Dateline" was not releasing an explosive interview with a woman named Juanita Broaddrick who accused Bill Clinton of a past sexual assault. "Drudge"'s turned against Trump has been noticed by "Drudge"'s friend, Rush Limbaugh.

(BEGIN VIDEO CLIP)

RUSH LIMBAUGH, RADIO TALK SHOW HOST, THE RUSH LIMBAUGH SHOW: My e-mail inbox every day, what's happening to "Drudge," Rush? What's going on with "Drudge?" I tell people have you ever heard of clicks? For this complaint to exist, there had to, at one time, have been a perception that "Drudge" was all in on the Trump candidacy and the -- and the Trump president.

(END VIDEO CLIP)

SMERCONISH: So is "Drudge" doing it because he is soured on Trump or because he's sensing a shift in his readership? Either way it's not good for the president and it raises a question of who else might follow? And this comes at a time when the president is warring with certain elements of "Fox News."

On Thursday after a "Fox" survey revealed that 51 percent of Americans support impeachment, President Trump tweeted, "From the day I announced I was running for president, I have never had a good 'Fox News' poll. Whoever their pollster is, they suck. But 'Fox News' is also much different than it used to be in the good old days."

And then that night at the rally in Minneapolis, he was quick to single out for praise those hosts who support he still enjoys.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Ainsley and Steve and by the way, Bryan's gotten a lot better, right? Bryan was a seven and he's getting close to 10 territory. Tucker's been very good, I have to say. And the legendary Sean Hannity and Laura Ingraham who's knocking them out of the park. And you go over, Maria Bartiromo and the great Lou Dobbs. I would be in such trouble if I forgot Judge Junior (ph).

(END VIDEO CLIP)

SMERCONISH: As the "Drudge" headline pointed out, not on the nice list was Shepard Smith. He quit "Fox News" yesterday. So two legs of Trump's support stool are now wobbly, "Drudge" and "Fox." So far there's no sign of wavering on A.M. talk radio, but the impact of any weakening will certainly impact the GOP base which in turn will influence the Senate jurors if and when the upper House convenes to hear articles of impeachment.

And this leads me to today's survey question at Smerconish.com. Go vote. I'll give you the results at the end of the program. Can President Trump win reelection without the support of the conservative media?

Joining me now is Tracy Sefl, who's known as "The Drudge Whisperer" and who advised Hillary Clinton's 2008 campaign on how to get positive "Drudge" coverage, and Brian Rosenwald, the author of "Talk Radio's America: How an Industry Took Over a Political Party That Took Over the United States."

[09:05:06] Brian, how integral to the president's political future is keeping this trinity together of conservative media support?

BRIAN ROSENWALD, AUTHOR, "TALK RADIO'S AMERICA": It's essential, Michael. If he loses it, he's done. This is his base. If his base turns on him, he has a huge problem and these guys are the sort of signal. As long as their listeners and viewers are with him, they're not going anywhere and that's sort of how we can watch and understand the signal of when he really actually has a problem.

SMERCONISH: Tracy, what motivates Matt Drudge, clicks or ideology?

TRACY SEFL, "DRUDGE WHISPERER/ADVISED HILLARY CLINTON 2008 CAMPAIGN: Clicks and his own sense of humor, his own quirks, things that he finds interesting in the world, but as it relates to this topic with Trump and with impeachment, there's no question that his tone has shifted and in some ways it's because he knows what side his bread is buttered on. He knows where he's driving the clicks and he knows that he still has that incredible influence. He us still, in fact, lots of people's home pages. He may not be everyone's home pages in the ways that he once was.

In the years that I was working closely with him, it was very clear that what he was motivated by was the story, the best story, the most clickable story. He's not an ideologue and that's something for conservatives to grapple with.

SMERCONISH: So take us in that room, not room, but the exchanges that you had with him. What was it like to try and work him? How successful were you? Share some insight because he's such a man of mystery.

SEFL: The mystery is the big part of his appeal. No question. It was really a different world, I have to say, when I was working most closely with him. It was certainly when Twitter was just a gleam in someone's eye and the rapid response nature of the "Drudge Report" was really important to the presidential campaigns at that time. We're talking about, gosh, a decade ago.

And so Trump is keenly aware of what's happening inside the media world. He would routinely receive stories before they were published. He would routinely see transcripts of shows before they aired. He's incredibly wired in and I believe remains incredibly wired in with media newsrooms across the country.

And what that meant in terms of my work with him is that we could talk about what was coming. I was in a position to share things that I knew would be coming down the pike. He was in a position to frame those in certain ways on his site. It was, in fact, fascinating to work with him and to have, frankly, a collegial relationship with someone who many Democrats would say the enemy, the enemy, but I think it was much more nuanced than that.

And I came to recognize certainly there were no guarantees. He did a lot of things that were, in fact, positive and helpful for Hillary Clinton back in the day and that wasn't to say that he couldn't, in the next moment, turn and do something meant to be embarrassing or silly or somewhat negative toward her. There was no guarantee. He's not -- he's not an ideologue, as I said, in that regard.

SMERCONISH: Right.

SEFL: He can see the way the wind is blowing. The man is a capitalist. He's driven by clicks. He's made his fortune, his empire is built on this very simple website that hasn't changed in many years. The clicks are the currency for Matt Drudge.

SMERCONISH: Brian, let me remind my audience. You literally earned a PhD studying talk radio. Do you see any signs of the cracks we're describing with "Drudge" and with "Fox News" thus far in the world of A.M. talk?

ROSENWALD: Absolutely not. You know, the the "Fox" host that the president praised there in that intro that you did and who he was retweeting the other day is Sean Hannity and Hannity is all in for him. And talk radio's king, Rush Limbaugh, said the other day, look, if the Republicans remove him, if the Senate Republicans remove him, it is the end of the Republican Party.

He said 90 percent of the Republicans are still on board and you can't do this and he talks everyday about Democratic lies and how Trump did nothing wrong and how they're out to get him and he's not going anywhere. And as long as his audience isn't going anywhere, neither will he and those are sort of the two key pillars of conservative media for Donald Trump are Sean Hannity and Rush Limbaugh and those guys are still fully on board.

SMERCONISH: Well, and you heard my comments at the outset where I think that the leadership for the Republican Party stems more from the airwaves than it does from, say, Mitch McConnell or even the White House.

[09:10:00]

And therefore, if you're correct, and I'm sure that you are, in Rush saying, hey, it'll be the end of the Republican Party, you know, those are fighting words. That's really a threat of sorts that he's laying down a marker with Senate Republicans.

ROSENWALD: Absolutely, yes. I mean, Senate Republicans will understand and Russia's making it clear and others on the air are making it clear, if you do this, this is war. You're declaring war on us and we will declare war on you and we're more powerful than you are. We will take your base away and your next primary is going to be ugly and they ...

SMERCONISH: Tracy ...

ROSENWALD: ... that is sort of what is going to keep them in line.

SMERCONISH: Quick final question. I have a time limit. So where you do see a change in "Drudge" recently, do you have any thought as to what would have precipitated it? What event, among the many there have been, do you think turned him?

SEFL: Well, he's a mortal like the rest of us and I do believe he follows -- he follows the rhythms, he sees the polls, he sees the way the country is responding over these three weeks with the impeachment discussions and the impeachment proceedings. He's following that. He's also a performance artist and he knows that the way he frames things, the color of fonts he chooses, whatnot ...

SMERCONISH: Right.

SEFL: ... that's all going to drive further discussion, but it's a different day with Trump and I'm glad that we're recognizing that the triumvirate may not include him anymore.

SMERCONISH: Great, great insight from both of you. Thank you. I appreciate you being here. What are your thoughts? Tweet me @Smerconish. Go to my Facebook page. I will read some responses throughout the course of the program. From Twitter, this comes, "The notion that Trump supporters are a bunch of ignorant rubes who blindly believe everything "Fox News" says is not only inaccurate, but insulting,"

Andrea, the 30-year rise of the conservative media has provided the direction that made possible Donald Trump's election in 2016. Brian Rosenwald's book lays it all out. I had a front-row seat to watch it happen. There's no insinuation here that those who are fans of "Fox News" and listen to talk radio are "rubes." That's your word, not mine.

But direction for this incarnation of the Republican Party, it doesn't come from Capitol Hill or the White House, it comes from the media. People wanted to elect, in 2016, someone who reminded them of their favorite talk radio host. Donald Trump was in the right place at the right time.

I want to know what you think. Go to my website at Smerconish.com. Answer today's survey question. Can President Trump win reelection without the support of the conservative media?

Up ahead, the Democrats think that President Trump should be impeached because he tried to get a foreign country to dig up dirt on a political rival, but have there ever been cases where a president could be justified in doing just that?

And why is the attorney general now traveling all over the world investigating the origins of the Russia probe? He's trying to prove a counter-narrative. Might he be able to do so?

(BEGIN VIDEO CLIP)

WILLIAM BARR, UNITED STATES ATTORNEY GENERAL: I think there was -- spying did occur, yes. I think spying did occur.

(END VIDEO CLIP)

(COMMERCIAL BREAK) [09:15:00]

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SMERCONISH: Among the reasons put forth to impeach President Trump is that he asked a foreign government, Ukraine, to investigate a political rival, Joe Biden, but historically, has there ever been an example where a president was justified to do so? And if a president truly believed a crime had been committed, would he be in the wrong to pursue it?

Joining me now to discuss is Edward Foley. He's a constitutional scholar, a professor, at Ohio State University's Law School where he directs the election law program. He clerked, by the way, for Supreme Court Justice Harry Blackmun and wrote this piece in "Politico," "Is It Ever OK for a President to Ask a Foreign Country to Investigate a Political Rival?"

Professor, permit me a long set up to my first question. I want to drill down on the specific legal issue that could confront the Senate and I would point out that in 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 misdemeanor."

Then on the issue of what is a high crime or misdemeanor, I direct people to Federalist 65 where Hamilton wrote this, "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."

And then you wrote this for "Politico." You said, "In order to prove Trump abused his presidential powers to the point that he no longer can be trusted in exercising them -- the constitutional standard for impeachment -- Congress must establish Trump's intent in making the request. Was it done in good faith, with U.S. foreign or domestic interests in mind or in bad faith merely for Trump's personal and political benefit?"

And I then ask this. If he can convince the Senate that he was acting in the best interest of the United States, he was worried about corruption in Ukraine and that's what caused him to hold up the delivery of those monies, might that lead to his exoneration?

EDWARD FOLEY, CONSTITUTIONAL SCHOLAR/PROFESSOR, OHIO STATE LAW SCHOOL: Yes, I think it would. If the Senate believed that he acted in good faith, then that would be a reason not to remove him from office.

SMERCONISH: So might, therefore, his best defense be to absolutely own this? I wasn't going to give Ukraine those monies because I was so worried U.S. tax dollars would be squandered in some corrupt arrangement?

FOLEY: Yes, but then, of course, the Senate could reach the opposite judgment since the opposite of good faith is bad faith. So it really depends on what the senators believe was his motive. He can try to make the good faith defense, but if they think otherwise, then he loses that argument.

SMERCONISH: Does this require a juror, in this case a U.S. senator, to get in his head?

FOLEY: It does. That's why I wrote the piece. I do think it turns on a judgment about his motive.

[09:20:00]

I don't think you can make the judgment based on the phone call itself. You have to understand the context behind the phone call and his alleged reason for making the phone call and decide whether you buy it or don't buy.

SMERCONISH: Is there any historical precedent that the president can turn to for support?

FOLEY: Yes, there is. There are two examples, one old and one more recent. The old one involves Aaron Burr who was Thomas Jefferson's vice president and he worked with Britain to try to really take territory away from the United States and so it would have been justified for President Jefferson to ask Britain to investigate what Aaron Burr was up to to figure out how to protect America. So that's the old example.

The new example or newer example is 1968 when Vice President, Former Vice President, Richard Nixon was running for the presidency. Lyndon Johnson was president at the time. Now, Johnson wasn't a candidate by October right before the election, but he had wanted to be a candidate and he had heard that Nixon was interfering with peace talks with South Vietnam and so it would have been appropriate for President Johnson to ask South Vietnam, I need to know what Richard Nixon is doing to protect America.

SMERCONISH: I really appreciate what I think is such a cogent legal analysis that you have offered that I haven't heard from anybody else, really drilling down on exactly what issue might confront senators. Now I want to ask you a political question because, as I understand your explanation, this is bad news for Joe Biden insofar as it almost guarantees there's going to be a litigation of the president's underlying allegations about Hunter. Am I misreading this?

FOLEY: No, that's correct. I don't think there's any way you can make a judgment about President Trump's motive without asking what were the facts concerning Joe Biden and Hunter Biden and whether or not President Trump was in good faith or bad faith in seeking the investigation.

SMERCONISH: So the way that Donald Trump, if he follows the guidance that comes out of this issue analysis, will defend himself probably will be to say, yes, I held up the money. I was justified in doing so. I was worried about corruption and I was acting not in my personal best interest, but in the best interest of the United States. And then try and convince the jurors, the senators, of that.

FOLEY: Yes, I think that's right. That's the analysis. SMERCONISH: By the way, neither of us are buying into the merit of the argument. We're simply stating as an academic exercise, this is the issue. I don't want to be misunderstood and I'm sure you don't either.

FOLEY: Correct. Correct. I don't have any knowledge one way or the other about the merits of the claim about Joe Biden and Hunter Biden. I'm simply saying that for the impeachment standard, when the Senate -- if the Senate gets to it, they have to decide the issue of President Trump's motive and that will require them to make a factual judgment. I'm not making that factual judgment. I'm just identifying the relevant factual issue.

SMERCONISH: That was excellent. Thank you, professor.

FOLEY: Thank you.

SMERCONISH: Up ahead, William Barr circumnavigating the globe to personally oversee America's investigation into the Russia investigation. How come? Because the president is trying to prove this point.

(BEGIN VIDEO CLIP)

TRUMP: I was investigated. I was investigated. OK? Me. Me. In my campaign. I was investigated and they think it could have been by U.K., they think it could have been by Australia, they think it could have been by Italy. So when you get down to it, I was investigated by the Obama administration.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:25:00]

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SMERCONISH: Why has Attorney General Bill Barr been investigating the origins of the Russia probe? The short version of what we learned from the Mueller report was this, that one night in May of 2016, George Papadopoulos, a Trump campaign foreign policy advisor, after a night of drinking in London, tells an Australian diplomat the Russians have dirt on Hillary Clinton.

It doesn't seem to register with the Australians until the WikiLeaks dump months later, then they call the Americans. The investigation gets launched and surveillance is ordered on Carter Page, another Trump campaign foreign policy advisor with ties to Russia.

Barr has recently gone abroad to investigate a counter-narrative that instead posits a deep state international conspiracy to prevent Trump from winning the 2016 election. Does that story have any merit?

Joining me now to drill down on this is Mark Mazzetti, "The New York Times" Pulitzer prize-winning Washington investigative correspondent who was the lead on this byline, "Bar and a Top Prosecutor Cast a Wide Net in Reviewing the Russia Inquiry." Mark, why Rome? Why, according to your reporting, has Bill Barr been twice in Rome in the last couple of weeks?

MARK MAZZETTI, WASHINGTON INVESTIGATIVE CORRESPONDENT, THE NEW YORK TIMES: What he's doing is tracking down one aspect of this conspiracy and that is that George Papadopoulos, who you referenced earlier, had a meeting in 2016, actually several meetings, with this mysterious professor named Joseph Mifsud. They first met in Rome and they later had follow-on contacts in London and it was this professor who provided Papadopoulos with insight into what the Russians might be up to with regards to Hillary Clinton's e-mail.

Now, the counter-narrative is that, in fact, that's not the truth. The truth is that Mifsud was actually put up to this by Western intelligence, by the Obama administration. It was kind of an elaborate entrapment campaign and so this is one leg of this conspiracy that involves, as the president said, potentially multiple foreign allies and Barr and his top prosecutor, John Durham, are pursuing this counter-narrative.

SMERCONISH: Do those who adhere to the counter-narrative disbelieve the Russian attack, the Russian meddling or hacking of our election or do they think that both are true?

[09:30:00]

In other words, yes, the Russians meddled, but the -- quote -- unquote -- "deep state" then used that meddle as a means of access to investigate, surveil, trumping people around him.

MAZZETTI: Yes. You can actually believe both. You can say that the Russians did in fact launch and carry out this sabotage campaign. And at the same time that the Obama administration and American allies were concerned enough about President Trump's ties to Russia and also the prospect of a Trump presidency to launch this spying campaign.

Again, though there is no evidence that has emerged to support this counter narrative. And I think it is important to also put this in context again about the president. The reason why this phone call with the Ukrainian president in July so alarmed this whistleblower was not just that he was asking the president to help Rudy Giuliani in the effort to dig up dirt about Joe Biden and Hunter Biden. It was to go back and look at 2016. He said, help Attorney General Barr.

So, Barr is the sort of parallel investigation going on that involves Ukraine, Italy, Australia, the U.K., that's not getting as much attention but it's important because it involves the arm of the federal government. It's the Justice Department that's pursuing this.

SMERCONISH: And John Durham, the prosecutor who has day to day responsibility for this is a serious well credentialed individual, right? Someone who've covered in the context of CIA interrogation.

MAZZETTI: That's right. He was brought in in the Bush administration to examine the CIA detention and interrogation program. He has got a history of going after mob cases. He has been the U.S. attorney of Connecticut for a long time and has a very good reputation.

So, he is certainly seen as a straight shooter. The strange thing about this whole investigation is you have the involvement of the attorney general overseeing it and he is asking the president to sort of broker meetings with foreign allies to help set up these meetings overseas. And of course the president is at the center of this investigation. It involves the president of the United States. So, there is potential conflict of interest here or at least the perception of conflict of interest.

SMERCONISH: Mark, a quick final point if I may. I'm so happy to have you on air today because I want to put this on folks' radar screen as you did in the "Times" this week. Because conceivably when the nation is further entrenched in the impeachment conversation and debate House or Senate a report from John Durham on whatever it is they find might drop.

MAZZETTI: It is certainly possible. We really don't have any insight about how long he's going to take. He certainly seems to be a deliberate prosecutor.

It could take months. It could come out one way or the other in the middle of this whole thing. And again what he finds could have a real impact on the president's political fortunes.

SMERCONISH: Thank you for a great report.

MAZZETTI: Thank you.

SMERCONISH: I want to see it. By the way, I want to see everything in this in the same way that I said I wanted to see the Mueller report, I believe in the legitimacy of the Mueller investigation. Let the chips fall where they may. I want to see whatever Durham comes up with with Bill Barr.

I want to remind you to answer the survey question at Smerconish.com today. Can President Trump win reelection without the support of the conservative media?

Still to come, why did this seating arrangement at an NFL game last weekend caused Twitter to lose its mind. My take firestorm over Ellen DeGeneres' friendship with former President George W. Bush.

(COMMERCIAL BREAK)

[09:37:32]

SMERCONISH: Last weekend Ellen DeGeneres went to Dallas to watch a Cowboys' game and Twitter went crazy. Now because the talk show host was rooting for their opponent, the Packers, but because she sat in the box of Cowboys' owner Jerry Jones next to former President George W. Bush and former first lady Laura Bush.

Here's some of the tweets. One of them Photoshopped Hitler next to her. Another said this is what class solidarity looks like. Why the controversy? Well, these critics point out that as President Bush had opposed gay marriage, though he voiced support for civil unions, got us into the wars in Iraq and Afghanistan, and more recently supported SCOTUS nominee Brett Kavanaugh. So some wanted DeGeneres who famously came out in 1997 and is married to actress Portia de Rossi to take a stand, give him a lecture, move seats, spill a drink on him. I don't know what.

Here is what DeGeneres responded on her program a couple of days later.

(BEGIN VIDEO CLIP)

ELLEN DEGENERES, TALK SHOW HOST: People were upset, they thought, why is a gay Hollywood liberal sitting next to a conservative Republican president? Didn't even notice I'm holding the brand new iPhone 11 and -- but a lot of people were mad and they did what people do when they're mad. They tweet and -- but here's one tweet that I loved. This person says, Ellen and George Bush together makes me have faith in America again.

(CHEERS AND APPLAUSE)

DEGENERES: And -- exactly! Here is the thing. I'm friends with George Bush. In fact I'm friends with a lot of people who don't share the same beliefs that I have. We're all different and I think that we've forgotten that that's OK that we're all different.

When I say be kind to one another I don't mean only the people that think the same way that you do. I mean be kind to everyone.

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

SMERCONISH: Amen to that. She got a lot of support but for some people on Twitter it just inflamed the situation. Actor Mark Ruffalo tweeted, sorry, until George W. Bush is brought to justice for the crimes of the Iraq War we can't even begin to talk about kindness. His response garnered more than 400,000 likes.

Huffington Post editor Noah Michelson tweeted, privilege is Ellen DeGeneres explaining her friendship with George W. Bush. As if what they disagree about is who was best dressed at the Emmys or what the best mayo is.

Well, I commend Ellen for standing up to the Twitter mob. Who among us does not have someone in our family or social orbit with whom we disagree politically? That's a great description of my Thanksgiving table.

[09:40:00]

And for those who don't, I would argue that it is their lack of integration, with people who are different, that is a large part of our problem. Time for Ellen's critics to do what she just did and that is get out of your bubble.

Still to come, Nancy Pelosi is trying to keep the impeachment inquiry narrowly focused only on Trump's pressure on Ukraine to investigate the Bidens. But as other scandals continue to mount does her strategy seem wise?

(COMMERCIAL BREAK)

SMERCONISH: So does Nancy Pelosi have to rethink her decision to limit the scope of the impeachment inquiry? Her preferred strategy has been to focus on Trump's pressure on the Ukrainian president to investigate Joe and Hunter Biden because it's clear cut, it's easy to understand, and the public has already seen some evidence released by the White House itself.

But just in the last 24 hours the president lost his appeal to stop the House subpoena of his tax documents. Two of his lawyer Rudy Giuliani's other clients were arrested on campaign finance violations while trying to leave the country. The former U.S. ambassador to Ukraine revealed the president had pressured the State Department to remove her due to -- quote -- "unfounded and false claims by people with clearly questionable motives."

[09:45:05]

And Giuliani himself is under investigation for possibly breaking lobbying laws. In light of everything that just happened and keeps happening will Pelosi be able to keep this focus on Ukraine? Should she?

Joining me now is Rachael Bade, congressional reporter for "The Washington Post." Rachael, do you think this will, in the end, be a decision made by moderates in the Democratic caucus?

RACHAEL BADE, CONGRESSIONAL REPORTER, THE WASHINGTON POST: Good morning, Michael.

That is certainly a crowd that Pelosi is taking a temperature with right now. When she decided to back the impeachment inquiry three weeks ago the moderates were the people that she went to to make that decision. I mean, these are people who come from Trump districts who could see potential blow back from an impeachment inquiry.

And that is the reason that Pelosi had been sort of holding back on impeachment the hold time. She has been worried about blow back for these moderate members who actually make up her majority. And it was a request that they actually had for her three weeks ago that if we're going to impeachment the president, let's focus on Ukraine, let's focus on something that we can actually prove. And Republicans can't accuse us of having this big witch hunt against the president in that way we can sort of minimize any political damage.

So, Pelosi for now is sticking to that strategy. There was a call yesterday where she sort of talked to members of the caucus that are back in their districts. They've been in a two-week recess. And some people have started pushing for her to expand beyond Ukraine to look at as Trump pressured other countries to do the same thing, try to make foreign policy promises on to sort of get them to investigate a political rival, but Pelosi says, for now let's just stick to what we know, what we actually have evidence of and that for now is Ukraine.

SMERCONISH: Rachael, I would think the timing will become another consideration because time marches on now the 2020 cycle is upon us and if the focus is expanded, no doubt that will delay how long this process will take to run its course.

BADE: Yes, so time and politics are the two sort of factors complicating these decisions, I think.

Pelosi when she decided they were going to do this she wanted to basically have this done by the holidays. Move quickly, move swiftly, use the momentum that we're seeing right now in the media and with voters around the country and just get it done so we can pivot back to issues.

Pelosi has always thought that impeachment is not something that's going to resonate with voters. And so in order to keep her majority and potentially oust the president she thinks they need to be talking about things like health care and prescription drugs in 2020. So, that was sort of the thinking behind moving quickly.

But there is questions about whether -- you know, Democrats are questioning whether that is the smartest strategy. I was talking to Dan Pfeiffer who was an Obama strategist who now has the podcast "Pod Save America." And he was saying, look, this is the first time Democrats have actually taken the microphone from the president. This is the first time Democrats are really on the offensive against the White House.

Trump -- there has been a whole bunch of scandals over the last few years and none of them have really touched the president. But in the past three weeks alone we have seen the polls have a seismic shift. And now a majority of voters including a majority of independents, even some Republicans are starting to support ousting this president and impeaching him. Why limit that? Dan Pfeiffer was saying, if you can continue these investigations and continue turning up damaging information on the president, why stop now when you can keep this momentum going?

SMERCONISH: A quick final question, if you may, do you expect there to be a vote any time soon on the impeachment inquiry? You know that this is a Republican and White House criticism of the process now under way.

BADE: So, my understanding is that didn't even come up on the caucus call they had yesterday. This is very much a White House talking point.

Republicans privately have admitted to me that they don't have a lot of substance they can push back on right now since the president is admitting what happened with Ukraine and the transcript is already out there. So what they've done is they latched on to process and in past -- past impeachments of American presidents they've actually had votes to begin an impeachment inquiry. Now that is not required but for now Republicans are saying, this isn't real, it's not really happening, because they haven't actually had a vote.

Now, from my understanding Pelosi thinks that if they have this vote they're just going to be giving into a White House talking point. So, they don't plan to do it at this point in time. The only thing that I think could possibly change that calculus is if a federal judge says that they actually need to have this vote to get certain documents.

SMERCONISH: Subpoena power.

BADE: You know that Democrats right now are fighting in the courts to uphold subpoenas and they're arguing that they're already in an impeachment inquiry, but if the judge says, you need to vote for this to be official then I think they would do it.

SMERCONISH: That will change it. Got it. Great job. Rachael, thank you so much.

Still to come, your best and worst tweets and Facebook comments. And we'll give you the final results of the survey question. You still have time to go vote right now at Smerconish.com.

[09:50:02]

"Can President Trump win reelection without the support of conservative media?"

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SMERCONISH: Time to see how you responded to the survey question at Smerconish.com. "Can President Trump win reelection without the support of conservative media?"

Survey says -- 90 percent no of 9,555 votes cast. That is the correct answer.

Here's some of what else you thought during the course of today's program. What do we got?

Do you think there is anything that would make Hannity and/or Limbaugh leave Trump?

That's a real easy for me to respond to. No.

What's next? Hit me with another one.

(LAUGHTER)

SMERCONISH: They are the guys on Fifth Avenue that he was speaking about.

Real Donald Trump keep normalizing this insanity. Can the Senate fined (ph) that the president was sincerely concerned about corruption? Grow up. Evan, do you mean find, f-i-n-d? Listen, I'm so glad that we had Professor Foley on the program today, a constitutional scholar from Ohio State University. Because as an attorney I have been watching these events unfold. You know what the constitution says relative to impeachment, treason, bribery, other high crimes or misdemeanors. Then you go to "The Federalist Papers" to find out what's a high crimes and misdemeanor?

[09:55:00]

It means abused his office. Beyond that, what he points out is that this becomes very much dependent upon the president's intent. There is a defense. The president really hasn't offered it because the president hasn't owned the idea that, yes, he held up the Ukraine's money because he was worried about corruption.

If he were to pursue that and convince people that he acted in the nation's best interests, not in his personal best interest, that could be a defense but he's yet to seize it. And that's what we do here. We sort of pursue academically the ways of looking at what's unfolding.

I remember people were really upset when I did likewise on obstruction of justice and the Mueller report. Let's see, how could this be argued. I'm sure there's a lot of blowback coming my way for having even explored it but I think it was a worthy exercise.

Join me for my "American Life in Columns" tour. I will next be in Norman, Oklahoma, Sunday, November 3rd and then St. Louis, Missouri on Presidents' Day, February 17th.

Thanks for watching. See you next week.

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