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Smerconish

How Would Potential Senate Trial Differ From House?; Should NFL Player Be Criminally Charged?; The Dems' Superdelegate Dilemma; Will University Of California Drop SAT Requirements?; Have Roger Stone's Dirty Tricks Finally Caught Up With Him? Aired 9-10a ET

Aired November 16, 2019 - 09:00   ET

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

(COMMERCIAL BREAK)

SUPERTRAMP, BAND: If everyone was listening, you know there'd be a chance that we could save the show. Who'll be the last clown to bring the house down?

MICHAEL SMERCONISH, CNN ANCHOR: Prophetic words? That's Supertramp from the aptly named album "Crime of the Century" released in 1974, the same year, by the way, that articles of impeachment were approved by a House committee investigating President Nixon. I'm Michael Smerconish in Philadelphia. This week's impeachment hearings provided some daytime drama and next week will deliver more of the same, but Roger Hodgson of the English supergroup of the 70s and 80s asked a good question, if everyone was listening.

"Axios" had interesting viewing data that suggests not. Day one's 13.8 million live TV viewers, that's not counting streaming and other online services, fell short of James Comey's testimony which had 19.5 million, the Christine Blasey Ford/Brett Kavanaugh hearing 20 million or the Michael Cohen hearing in February that had 16 million.

Of course while these other events were confined to a single day of viewing, the impeachment hearings will play out over many days. That could either scatter viewership or build interest over time. Apparently among those not paying attention to impeachment or perhaps mindful of the long odds that it results in the president's removal, Wall Street. Yesterday, the Dow Jones Industrial Average set a new record reaching the 28,000 milestone for the first time ever, perhaps another reason why half of America seems not that concerned with impeachment.

But if Americans are not now dialed in, it means they're getting their information secondhand so that they can still look smart at the local coffee house. In the Watergate era, that meant working Americans watched reruns of the appeasement hearings shown in primetime on "PBS." Sadly, today, too many will rely on their echo chambers instead of seeing and hearing for themselves.

The only commonality will thus be the conclusion that we are witnessing the crime of the century, but whether that means the president is perpetrator or victim depends on where you get your information. So instead, here's my advice. Invest some time in this. It's important. And then do some evidentiary thinking and make up your own mind.

Joining me now is the president of Duquesne University, Ken Gormley. He's an impeachment scholar. He's also author of "The New York Times" bestsellers "The Death of American Virtue: Clinton Vs. Starr" and the Watergate-related "Archibald Cox: Conscience of a Nation." Ken, I keep hearing due

process said or asserted in connection with these impeachment hearings. Do the rules of due process apply to what's going on in the House?

KEN GORMLEY, PRESIDENT, DUQUESNE UNIVERSITY: Well, Michael, the framers gave the House wide latitude in terms of how they conduct impeachment trials. So frankly, they don't have to have hearings at all. It is up to them as to how to conduct it. It was designed for them to act swiftly. So for instance if a president committed -- subverted the government, shot someone in the streets, they could move to impeach immediately without any proceedings at all.

So actually the current proceedings that allow for witnesses, which they have agreed to themselves, for each side to ask questions of the witnesses is more than is required under the Constitution. They have free rein and ultimately the framers set it up that if the House -- they gave this power to the House because they were closest to the people and if they didn't perform correctly, the people could vote them out of office next time.

SMERCONISH: If we then get to a Senate trial, how will it look differently than the House?

GORMLEY: The Senate is different. It has the sole power to try impeachments. I attended the first day of the impeachment trial of President Bill Clinton. It was a very somber day. No one wants to be there. You have the House managers who present the case on behalf of the House. You have -- the president can have counsel there and would have counsel there to defend against the charges. The Chief Justice under the Constitution presides over it and the senators sit there sitting in judgment.

But this is a political -- a political proceeding. It is not a criminal proceeding and so it's quite a bit different and the senators tend -- there tends to be more decorum there. It isn't usually a circus-like atmosphere and, you know, it's 100 people.

[09:05:06] It's a smaller number of people. It would be, incidentally, in the House chambers. The Senate chambers isn't big enough and I would look for something that is much more serious and subdued.

SMERCONISH: I appreciate the opportunity to just run through and tick off a number of the items that we've heard bandied about this week. You're a constitutional scholar. Here's another one. I keep hearing, well, this is all hearsay. What's the likelihood that there will be additional witnesses presented in a Senate trial who were not a part of the House process?

GORMLEY: That's a great question, Michael. The first question is whether there are going to be any live witnesses at all. So in the Clinton hearing, for instance, in the trial, when the House impeached President Clinton, I interviewed Senator Trent Lott, the Republican leader of the Senate, and he said to me he felt like a bomb had been pitched into his lap. He really did not want to have any parts of this.

And so ironically, the Senate Democrats and Republicans got together, led by Teddy Kennedy for the Democrats and conservative Republican Phil Gramm from Texas, and they decided together that they were going to agree to agree that they were not going to have witnesses at all and they were going to stick to the evidence that was submitted in the House. That allowed for more certainty. It didn't allow for new bombs to go off and surprises and I wouldn't be surprised if we didn't see the same thing here.

SMERCONISH: I keep wondering, final question, and thank you, Ken, will we hear from Rudy Giuliani? Will we hear from Mick Mulvaney? Will we hear from John Bolton before this has run its course? What do you think?

GORMLEY: I think that that goes down some treacherous terrain if you try to bring these people in. Rudy Giuliani is in a different position than the others because he is not a federal official. He's not been appointed by the Senate. He's a private individual and so he could actually be fined or incarcerated if he refused to come in. That's a different question, but in each case, Michael, I think that there is peril for each side of this.

In the -- in the impeachment of Andrew Johnson, Andrew Johnson ended up leaving office really in disgrace and died in disgrace. President Nixon flew off in a green helicopter. Bill Clinton survived, but Al Gore carried the scar of that hearing and in fact, Henry Hyde, the head House manager, told me if it weren't for the impeachment, there would have been no president George W. Bush and that may be true.

There is trouble abounding for all concerned. Look to the more senior senators to put pressure on their leaders to get this over as quickly as possible for the benefit of the institution of the Senate, but also for the Senators themselves.

SMERCONISH: Ken Gormley, president of Duquesne University. Thank you, Ken.

GORMLEY: Thank you, Michael. Always a pleasure.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I will read some responses throughout the course of the program. What do we have, Catherine? "Smerconish, Democrats, quit wasting time. You've already 100 percent decided on impeachment. Send it to the Senate and get back to work for your constituents. Impeachment circus."

You know, AJ, you can make the same point, right? Democrats, you're 100 percent decided. You could say the same thing about Republicans. You're 100 percent decided against. What's frustrating to me about this is how little evidentiary analysis is taking place, how few people are like legitimately -- I should say members of Congress and the public are legitimately interested in trying to figure out what went on here, ask probing questions of both sides, et cetera, et cetera. Instead, it's a foregone conclusion how everybody will vote and man, that's awfully frustrating.

What else? Do we have time for one more? "Economy is rocking and impeachment is a joke." Mike, I got to say, you know -- I hope I'm right about this. I think that I am. This is the front page of "The Times" today. I bought it at Wawa this morning. I don't see any mention at all of the Dow hitting 28,000 for the first time and I think that's indicative of a bubble mentality. Yes. I mean, 28,000 in the Dow is significant for a lot, not all, Americans.

Up ahead, a threatened lawsuit against the University of California asks to stop using the SAT and ACT because they discriminate against low-income and minority students. Could this be the death knell for the standardized test?

And in 2016, the party insiders known as super-delegates helped Hillary Clinton win the nomination and caused a lot of tears among Bernie Sanders supporters, but with such a large pool of candidates, could a brokered convention be looming on the horizon? Will super- delegates end up choosing the nominee?

[09:10:00] Plus, after a play, Cleveland Browns Myles Garrett ripped the helmet off his opponent, quarterback Mason Rudolph, then smashed it against Rudolph's head. He's been suspended from the NFL indefinitely, but is that enough? In many circumstances, this would be seen as a crime and I want to know what you think. Go to my website at Smerconish.com and answer this question right now. Should NFL player Myles Garrett be criminally charged?

SMERCONISH: It was a moment in pro football that had commentators, fans, even fellow teammates stunned. With just seconds to go in Thursday Night Football, Cleveland Browns defensive end Myles Garrett ripped the helmet off the Pittsburgh Steelers quarterback Mason Rudolph, then smashed that helmet against Rudolph's head, a massive fight ensues between the two teams.

Garrett has since apologized for the incident and said that his actions were selfish and unacceptable. The 23-year-old has now been suspended without pay indefinitely and fined for the helmet smashing incident. Both teams were fined $0.25 million for the brawl and two other players received one and three game suspensions for their involvement, but some seem to be calling for more action to be taken against Garrett.

[09:15:00] Former Steelers linebacker James Harrison tweeted, "That's assault at the least. Six months in jail on the street. Now add the weapon and that's at least a year, right?" The Cleveland Police say they will not file charges unless Rudolph files a police report and that leads me to today's survey question. Should NFL player Myles Garrett be criminally charged?

With me now, former football player at Harvard and the CEO of the Concussion Legacy Foundation, Dr. Chris Nowinski. Hey, Chris, Kevin Seifert from "ESPN" posted this. "On Thursday night, Cleveland Browns defensive end Myles Garrett committed the closest thing we've seen to an on-field crime in the modern era of pro football." Do you see it that way?

CHRIS NOWINSKI, FORMER HARVARD FOOTBALL PLAYER/ CEO, CONCUSSION LEGACY FOUNDATION: Yes. I mean, well, it's really an unfortunate incident and we're all very lucky that he didn't strike him with the top of the helmet and fracture his skull or give him a severe brain injury. So you definitely have to come down hard on the act because we all need to appreciate that if you hit somebody in the head with a hard object, you can kill them and you can't accept that under any circumstances, but there's a lot of layers to this story.

You know, one way to look at it, you know, I actually feel some sympathy for Garrett because if you watch the whole sequence of events, the idea of ripping off the helmet actually came from Mason Rudolph. After a legal tackle, Mason Rudolph was trying to rip the helmet off of Garrett and as a former defensive lineman myself, I actually -- I understand what he was thinking, right? You got this little guy trying to rip off your helmet.

So he decided, all right, I'm bigger than you, I'm going to rip off your helmet and you actually walk him -- Garrett walks away and then Rudolph, without a helmet on, comes after him again and so then there was this terrible decision, but it was a -- you know, you got to understand that it was never Garrett's intention to actually, you know, hurt him. So I see that it's a -- it's terrible and we have to come down on it, but I don't think we're talking suspending him for the rest of his life or anything like that. I think it was a bad decision, it needs to be punished and then we move on.

SMERCONISH: You look at the actual impact -- by the way, the "New York Post" captured it as only the "New York Post" could capture it on the front cover today. It's amazing that he didn't -- you know, so much about the head and football injuries. It's amazing that he didn't sustain a serious injury.

NOWINSKI: Well, yes. So you hit somebody with the bottom of the helmet, you're just not going to deliver as much energy. So I think he was -- everyone's very lucky that that happened and, you know, Mason Rudolph is coming off a very serious concussion a few weeks ago and so you could imagine also there could have been a second concussion that might have changed his career and then we're all dealing with the tragedy of a young person whose career's ended by a incident that should not take place in football, right?

We all agree, when you get on the field, we all could get hurt, but that's within the realms of the rules and when you break the rules, you know, that's when things get very bad.

But also let's remember that this storyline is eclipsing the other storyline that comes out of the game around brains which is that the top two wide receivers for the Steelers both suffered concussions on illegal helmet to helmet hits, right? JuJu Smith-Schuster and Deante Johnson are both now out. One of those was penalized to the point where the Cleveland Browns players rejected. They actually delivered brain injuries to very good players that are -- that are -- that could hurt their careers, in illegal manners.

Those players are not being talked about as being suspended for six weeks, even though those wide receivers could be out for six weeks with brain injuries. So ...

SMERCONISH: Here --

NOWINSKI: -- the questions of justice and fairness here are -- there's a lot -- there's a lot to unpack.

SMERCONISH: So the police say we're not doing anything unless Mason Rudolph comes to us and files a complaint of sorts. You know the culture, you know the mentality of these guys, you yourself played at a very high level. Would he be ostracized in the game if he tried to go that route, if the quarterback tried to go after the defensive end and assert a criminal charge here or initiate one?

NOWINSKI: If he was actually hurt and if this affected his career going forward, I think everyone would understand why you would pursue a criminal or a civil case. I think because he wasn't hurt and because the film now shows that he sort of started this and had a big role in it, I think he's going to move on and not file any charges. That would be my guess, but I think, you know, it's also interesting to think like ...

SMERCONISH: Thank you, Chris. I really appreciate ...

NOWINSKI: Yes. No problem, Michael. Always good to talk to you.

SMERCONISH: No, finish your -- finish your thought real quick.

NOWINSKI: Well, the other -- the other thing is that one of the interesting crimes here when you think about how NFL punishes people is that this was done on camera alive in front of millions of people and so you have to be accountable right away. I was reading Nancy Armour's column in "USA Today" earlier where she talks about if this was an off-field crime and, for example, he struck a woman, the six- month -- the six-game suspension, you know, wouldn't be as fast and they wouldn't be talking about should he come back to the NFL?

[09:20:02] So again, there's a lot to think about as we talk about what's an appropriate punishment here ...

SMERCONISH: No doubt.

NOWINSKI: ... but the big picture, don't hit people with your helmet.

SMERCONISH: That is -- thank you, Chris. That's why I made it the survey question today. What are you saying on my Smerconish Twitter and Facebook pages? Catherine, what do we have? We have got this. "If pitchers aren't charged for throwing 100 mile per hour pitches and hockey players aren't charged with gashing other players with sticks," -- well, there's an intent question, right? A pitcher, unless he deliberately throws 100 mile an hour fastball at somebody's head and the hockey -- I mean, this was deliberate. You know, as a lawyer I look at this and I say he acted with malice. Look, I want to know what you think. Go to my website at Smerconish.com right now and answer today's survey question. Should Myles Garrett be criminally charged? It's not going to happen unless Mason Rudolph files that charge, but I want to know what you think. Results at the end of the hour.

Up ahead, in the last two weeks, Deval Patrick and maybe Michael Bloomberg have joined the already crowded Democratic field. With so many candidates, there may not be a clear front-runner. Could we be headed to a brokered convention?

And if the SAT and ACT can't really predict a student's success in college, why do so many schools keep requiring them? That all may change if anti-discrimination activists succeed in California.

Plus, has Roger Stone's career of dirty tricks finally caught up to him? I'll talk to the film maker of "Get Me Roger Stone."

(BEGIN VIDEO CLIP)

ROGER STONE, AMERICAN POLITICAL CONSULTANT: I'm an agent provocateur.

UNIDENTIFIED MALE: Political strategist.

UNIDENTIFIED MALE: Controversial as you can get.

UNIDENTIFIED MALE: An incredible capacity for treachery.

UNIDENTIFIED MALE: Win-at-all-cost mentality.

UNIDENTIFIED FEMALE: When people think of Washington corruption, they think of Roger Stone.

STONE: Those who say I have no soul, those who say I have no principles are losers. Those are bitter losers.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:25:00]

(COMMERCIAL BREAK)

SMERCONISH: With the recent additions of Deval Patrick and maybe Michael Bloomberg, are the Democrats doomed to get their nominee by way of brokered convention? With the tight pack of highly organized, well-funded candidates with diverse appeal, it seems unlikely that a single front-runner will emerge after the first four nominating states. By March 10, more than 50 percent of the delegates will be pledged divided proportionately in each state among anyone getting more than 15 percent, making it difficult for any one candidate to win a majority before the convention.

This again puts the focus on the party's use of super-delegates, the delegates consisting of members of Congress, DNC members and other top party officials. They vote if nobody wins on the first ballot and get to choose for themselves. Remember that in 2016, these same party insiders helped Hillary Clinton defeat Bernie Sanders, leading some Sanders supporters to cry foul.

Joining me now to discuss is Bill Richardson, the former New Mexico Governor, former U.N. Ambassador who, by the way, was chair of the 2004 Democratic National Convention. Governor, what do you think? Are we headed to a brokered convention?

BILL RICHARDSON, FORMER NEW MEXICO GOVERNOR: I believe we are headed to a brokered convention for the following reason. There's a total of 4,600 delegates that are out there, 3,800 are pledged, but these super-delegates, 785, could be potentially the margin of victory.

They can't vote until after the second ballot, but if you look at the top tier candidates, Mayor Pete, Joe Biden, Elizabeth Warren, Bernie Sanders and potentially two formidable candidates like Bloomberg and Patrick coming in, they're all bunched up around 20 percent or a little lower and you need 1,919 to get a first ballot victory. I don't see any way that that's going to happen, Michael.

So I think you're headed into a brokered convention. The rules point towards -- the new rules that have been -- from the Democratic National Committee point to a brokered convention in the second and third ballot where everybody's free after the second ballot. Second ballot, third ballot, potentially some new candidates might emerge that perhaps didn't enter the primaries like Michelle Obama, the most popular Democrat in the country, like Senator Sharon Brown ...

SMERCONISH: Whoa. Whoa. You're making -- you're making news here. Do you -- do you really think that's a possibility that she would get in?

RICHARDSON: Well, no. I think the delegates would want somebody that can win. There's desperation for a victory Sharon Brown of Ohio, Michelle Obama, somebody like that, possibly Tom Hanks the actor. You know, I know that's a little far-fetched, but Democrats right now, there could be a very divided brokered convention where everybody's mad at each other and then somebody new emerges. That's a possibility.

SMERCONISH: Governor, is this necessarily a bad thing for the party?

RICHARDSON: No, I think it's good. You know, the fact that we have a lot of candidates out there, I think the National Committee has done a good job with the debates, winnowing down the candidates. We've built a strong bench for the future.

I think the party is going to regain its strength because of the diversity of the country, but I think what we need to do, Michael, as a party is the Upper Midwest is key. We've got to increase the turnout of minority voters, Hispanic and African-American voters and we've got to appeal to that white, non-educated college voter that seems to be escaping us. So I think it's looking good, but I think this fierce debate, the debates that have taken place, a brokered convention is good for the party. That's my view.

SMERCONISH: Final observation. I think that super-delegates and the concept of super-delegates are improperly villainized. There's a reason why the party thought they needed this input and it is electability. You get the final word.

RICHARDSON: Well, the final word, I believe, is super-delegates in the past, I think, were too many.

[09:30:00]

They've been reduced and they can only vote in the second ballot. That's 785. It's party insiders. You're right, it's elected officials, it's members of Congress, people that know politics, that know polling, know where the country is heading.

I don't think it's necessarily bad that they're going to have a very strong role. So I think that's good, what's happened.

I think the national committee has responded in a positive way to having less super delegates. But now with this brokered convention potential and the rules that are leading towards a brokered convention. I think this is healthy.

SMERCONISH: Governor, nice to have you back. Thank you so much.

RICHARDSON: Thank you. Thank you.

SMERCONISH: Let's check in on your tweets and Facebook comments. What do we have in this subject? From Twitter I think.

Every POTUS election season in the modern era a brokered convention is rumored to be on the horizon. Spoiler alert, Michael, it never happens.

Don't let the air out of my tires. It might happen this time. And it might happen for the reason that -- there's a reason why this year is different. California and Texas have moved forward to Super Tuesday which is March the 3rd. A big share of votes will be cast that day. And because of the proportionate nature of the Democratic voting there's a very real prospect that a lot of individuals will have some share of the vote.

And my God, you've still got Deval Patrick and Michael Bloomberg getting in at this late stage. And Hillary Clinton -- don't tell me she doesn't want to be drafted. You know, the old -- people are asking me. People are putting pressure on me. Hey, people are asking me and putting pressure on me too. To do to what, I'm not sure.

Is the SAT about to become obsolete? Nobody would be happier than this CNN host who despite taking the test several times never rose above the Mendoza line. A new lawsuit threading California could go a long way to eliminating the standardized test.

And self-described agent provocateur, Roger Stone found Friday on seven counts regarding his efforts concerning WikiLeaks' 2016 release of hacked emails. Has he turned his last dirty trick? Here's what another provocateur Alex Jones had to say.

(BEGIN VIDEO CLIP)

ALEX JONES, HOST, THE ALEX JONES SHOW: He's not even allowed to say, I want to be freed by the president and I need to watch out, the lawyers are telling me. Because I'm doing what Roger said.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:35:59]

SMERCONISH: Is California about to again lead the nation? Several groups in the state are threatening to file the nation's first lawsuit seeking to end the use of standardized tests in college admissions. They've demanded the University of California stop requiring applicants take the SAT and ACT alleging they violate state civil rights laws by unlawfully discriminating against disabled, low-income and underrepresented minority students.

If this happens it would be enormous because the U.C. system is the largest single market for the tests. In fact six of its 10 campuses which educate 222,500 undergraduates receive the most applications in the nation. And the tests have already been dropped or made optional at more than a thousand American colleges and universities including George Washington University, Wesleyan University, and the University of Chicago.

Joining me now to discuss is Bob Schaeffer. He's the public education director of the FairTest. That's the National Center for Fair and Open Testing.

The consequences of this, Bob, would be enormous -- right -- because of the scope of the University of California system?

BOB SCHAEFFER, PUBLIC EDUCATION DIRECTOR, FAIRTEST: That's right, Michael. And thanks for having us on.

Yes, the University of California is the grand prize. It was the grand prize for the testing companies as they expanded into national businesses. And it's a grand prize for the movement to eliminate unfair barriers to access posed by standardized tests like the ACT and SAT and that's why there's so much focus on this potential lawsuit in California to eliminate those tests in the admissions process.

SMERCONISH: It's interesting that the challenges being asserted here on behalf of the disabled or minority or low income. I'm none of those things but I'm against the SAT and ACT because I think that it has become a cottage industry of its own and too much emphasis is put on one single test that otherwise that time commitment -- my God, you could be proficient in a musical instruments.

But let me play devil's advocate with you. "The Wall Street Journal" said this -- they called it a meritocracy's waterloo in an editorial and they said, "Standardized tests can seem frustration and arbitrary, but so is the entire college admissions tournament, which weighs activities, personal characteristics, character and often race. Testing is at least objective."

What's your response?

SCHAEFFER: Well, first of all FairTest as it long said test scores aren't measure merit. They measure a skill at taking a test which is not the same as being good in school. In fact research by the test makers themselves shows that high school grades, your tests that you've taken in high school, the rigor of courses you've taken, is a better predictor of how well you'll do in college than either of their tests.

There's nothing in filling in bubbles on a multiple choice test on a Saturday morning that is like what you do in college. It's a poor measure. It's an unfair measure. And the SAT and ACT need to be eliminated in California and elsewhere as more than 1,050 colleges and universities across the country listed on FairTest Web site have already done.

SMERCONISH: We're having this conversation at the right time because students are on pins and needles awaiting early decision. What does the data say as to the relationship if any between your performance on the SAT and your ability to do well in college?

SCHAEFFER: The SAT and ACT are weak predictors of first year grades in college, not as strong as high school record. And when it comes to outcomes that really matter, like graduating, like getting a decent GPA, like getting honors and whatnot those tests are almost irrelevant.

They add no useful information at the same time they create discriminatory barriers to kids whose parents can't afford high prized coaching, who don't go to schools where the curriculum is aimed at preparing you to take the SAT and ACT.

[09:40:10]

Those tests are primarily measures of accumulated advantage, not the ability to perform in college or in life.

SMERCONISH: Look, I wear my poor score like a badge of honor. In my case, it was of zero predictive value in what was about to unfold in my life. Anyway, thank you so much for being here. We'll keep tabs on this story.

SCHAEFFER: Thank you, Michael.

SMERCONISH: Up next, longtime Trump confidant Roger Stone convicted by a federal jury on Friday of lying to Congress and tampering with the witness. I'll discuss the outcome with the film marker of an excellent documentary", "Get Me Roger Stone."

(BEGIN VIDEO CLIP)

ROGER STONE, FORMER TRUMP ADVISER: I revel in your hatred because if I weren't effective, you wouldn't hate me.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:45:10]

SMERCONISH: Has Roger Stone's career of dirty tricks finally caught up with him?

Friday President Trump's former aide and longtime friend was convicted on five counts of lying to Congress, one of obstruction and one of witness tampering in connection with what he knew about those WikiLeak emails in 2016.

The president soon tweeted, "So they now convict Roger Stone of lying and want to jail him for many years to come. A double standard like never seen before in the history of our country."

My next guest spent five years as co-director of the documentary, "Get Me Roger Stone." Here's a taste.

(BEGIN VIDEO CLIP)

STONE: I suggested that Trump should explore a bid for the presidency.

UNIDENTIFIED MALE: He created Donald Trump as a political figure.

UNIDENTIFIED MALE: You're the biggest --

(CROSSTALK)

STONE: What am I lying about?

UNIDENTIFIED FEMALE: Have you spoken with the WikiLeaks founder?

STONE: You were great tonight.

UNIDENTIFIED MALE: Roger, you can't just say that.

STONE: You have to be outrageous to get noticed.

UNIDENTIFIED MALE: America may be collapsing, but Roger Stone is determined to enjoy it.

(END VIDEO CLIP)

SMERCONISH: Dylan Bank joins me now. Dylan, nobody wants to go away. But in some perverse sense, does he wear this as a badge of honor? You came to know him so well when you made that documentary.

DYLAN BANK, CO-DIRECTOR, "GET ME ROGER STONE": Well, in some regards Roger has always been pitching certainly in the recent years that he is the victim, that he is the person that the deep state is coming after. But it's going to be very hard for Roger to spin this in a positive light. Roger got where he's at because he's obsessive, he can't shut up his mouth and his energy and his addiction to election night drives him and drives him. And then it often backfires on him. And this is maybe the ultimate case of his mouth backfiring on him. He was kind of doing his same old thing, threatening, and using Nixon quotes and hyperbole. And he was doing it while texting on a FBI investigation.

SMERCONISH: Well, and some of what he regards as Stone's rules came into the trial. In fact I'll put this on the screen. The Gore Vidal quote that Roger loves. Stone himself explained his philosophy in a clip from his House testimony played for jurors quoting the writer Gore Vidal he said. "Never pass up an opportunity to have sex or appear on television."

Now the next line says, not one juror smiled. Maybe a humorless bunch. I'm not sure. What do you make of that?

BANK: Yes. As I just said, Roger is trying his same old tricks. He's pulling out his jokes. He's pulling out his lines. But that doesn't actually matter in this case. Because he just straight-up said things that could be demonstrably proven not true and there was no spin that he could give to the jury.

Now he's trying his spin. Now he's trying it to an audience of one, which is Donald Trump. And he is going out there big and public and putting out there that he directly wants a pardon from Donald Trump. And this is really going to be the test case as to what loyalty really adds up to for Donald. Because nobody has been more vocal and loyal than Roger at least in the past few years.

SMERCONISH: Well, put that tweet back on the screen from the president. "So now they convict Roger Stone of lying and want to jail him for many years to come." What about crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr & Nellie, Steele & all the others, including even Mueller himself? Didn't they lie?"

"A double standard like never seen before in the history of the Country."

One would think that any serious contemplation by the president of a pardon for Stone would have to come post-November of 2020.

BANK: Absolutely. And they're going to have to wait until this plays out. And it wouldn't surprise me if Donald Trump did a pardon on his very last day, whenever that actually adds up to be, so he doesn't take any personal heat for it.

But if there is one person who can get through to Donald Trump and appeal on a personal level, it should be Roger Stone. They've had their falling outs over the years as Roger's first wife Ann says in our film, "Get Me Roger Stone," Roger and Donald have gotten married and divorced more times than we can count.

But in the last few years Roger put his foot in the ground and said, I am on team Trump and on his own went out there created crowds of people, rallying them together to say, lock her up. And may I remind you he wasn't having them say that because Hillary Clinton was just a back room politician making shady deals, which she was also saying. He was out there saying Bill and Hillary Clinton were serial killers. So he really took it upon himself to go that extra step for Donald. What is that worth? Let's find out in November.

[09:50:00]

SMERCONISH: Dylan, the documentary is tremendous and really, really captures the Roger that I have known for many, many years. Congratulations on your film.

BANK: Thank you so much.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments. What do we have? From Facebook, I think.

"What does Roger know that he could spill if not pardoned?"

Oh, Sean, Sean, Sean, Sean. I think Roger knows where all the bodies are buried, and not just for this president of the United States. But it doesn't strike me as the guy who ever spills.

We'll give you the final results of the survey question at Smerconish.com. Cleveland Browns Myles Garrett was suspended by the NFL indefinitely for ripping off Pittsburgh quarterback Mason Rudolph's helmet, striking him on the head during the final seconds of Thursday night football. So, should he be criminally charged?

Go to my Web site right now and cast your ballot.

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SMERCONISH: Time to see how you responded to the survey question at Smerconish.com. You've seen the dramatic video. Cleveland Browns defensive end Myles Garrett uses the helmet to take a swing at Steelers quarterback Mason Rudolph.

So should NFL player Myles Garrett be criminally charged? Survey says -- 61 percent, yes. Whoa! Whoa!

[09:55:01]

Nine thousand three hundred eighty-nine votes cast, nearly scientific. Of course unless Mason Rudolph cooperates, it's not going to happen. But what an interesting barometer of what you're thinking.

What else has come in during the course of the program? Let's take a look.

The Dow is not the economy. Where is my better and cheaper healthcare? Why -- have you been to a grocery store? Restaurant? Buy an airline -- to sporting event? Cable TV? Medication? Prices have gone up.

Hey, Jug, here is what I would say, I would say, if the headline were that the Dow had tanked -- OK -- would you nevertheless be holding him accountable? Because you've got to be consistent. The Dow is up and there are a lot of barometers that are up. And I think that the president can rightfully lay claim to that. It's a big story.

What else has come in? Here's another one.

Great start to the show with Roger Hodgson. Not everyone is listening because of news cycle burnout. But each side isn't listening to each other. It's like screaming at the ocean.

Yes, it's sad. More people need to pay attention. This is serious stuff. And I worry about all the other stories that are not getting enough oxygen.

Join me for my "American Life in Columns" tour. Next up Oakmont, Pennsylvania near Pittsburgh on January 26.

Thanks for watching, see you next week.

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