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Iran Vows Revenge For U.S. Killing Qasem Soleimani, Its Top General; Will Delay Of Impeachment Trial Hurt Democrats?; Discussion With Harvey Weinstein's Lead Attorney Ahead Of Sexual Misconduct Trial; Does Punishing People For Ideas Violate Free Speech?; Which Of California's New Laws Will Go Nationwide? Aired 9-10a ET

Aired January 04, 2020 - 09:00   ET


MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. Finally, it is here, 2020. We've been talking about it for months, the election year that seemed like it might never come finally beginning. And it started with a bang literally, the assassination of an Iranian general and a new release of unredacted e- mails that suggest the order to keep the freeze on Ukrainian aid came directly from the president. If history is any guide, that will be just the start of an election cycle that no one can predict.

Think about it. Who could have anticipated that in 1960, Richard Nixon's debate performance would be remembered more for his lack of makeup than his prose or that in 1967, George Romney would see his candidacy implode after saying that he was, quote, "brainwashed" while in Vietnam? That Edmund Muskie would either cry or get snow in his eye in New Hampshire in 1972? That in 1976 in a debate against Jimmy Carter, Gerald Ford would say, quote, "There is no Soviet domination of Eastern Europe?"

That in 1987 when Gary Hart told the media that if they followed him, they'd be bored, they would and they weren't? That in 1992, Ross Perot would drop out of the race after saying that the Bush campaign was plotting to disrupt his daughter's wedding? That the 2000 election between Al Gore and George W. Bush would come down to something called hanging chads?

That in 2004, worse than Howard Dean's third-place finish in the Iowa caucus, would be the scream with which he ended his concession speech? That in 2011, Rick Perry would say that if elected, he'd eliminate three government agencies and then not be able to name them?

Or that in 2016, this trifecta would play out? First that Donald Trump would be outed with an old "Access Hollywood" tape in which he made crude remarks years prior, second that "WikiLeaks" would release 2,050 Clinton campaign e-mails an hour later, third that two days thereafter Donald Trump would invite the media to watch his debate prep, only to have him surprise everyone by presenting three women who each claimed sexual harassment against Bill Clinton.

Ladies and gentlemen, here is the one certainty, the only thing we know for sure about the 2020 election, that we really don't know what's about to happen unless you're this guy. Now to Iran. Both Iran's president and the supreme leader have vowed revenge for the killing of General Qasem Soleimani. The U.S. is deploying thousands of additional troops to the region and cities across the country are remaining vigilant and monitoring the events overseas, which leads me to this week's survey question. I want to know what you think. Go to my website at and answer this. Was President Trump justified in ordering the assassination of the Iranian General Qasem Soleimani?

Joining me now is CNN's National Security Analyst, Peter Bergen. He just wrote this piece for, "The killing of Iran's General Soleimani is hugely significant." He's also the author of the book, "Trump and His Generals: The Cost of Chaos."

Peter, the president said that Soleimani was plotting imminent attacks, but he wouldn't say what exactly they were. What's known, if anything, in that regard?

PETER BERGEN, CNN NATIONAL SECURITY ANALYST; AUTHOR, "TRUMP AND HIS GENERALS": Well, I think the use of the word imminent is partly a legal effort to make sure that this killing was legally authorized. I mean, White House lawyers and State Department lawyers and others have weighed in to say that this was legal and imminence is one of the kind of -- go back, for instance, to Anwar al-Awlaki, the American citizen who was killed by a drone during the Obama administration.

He was a -- he was an American citizen. One of the rationales that the White House offered at the time was imminence. So this is, I think, kind of a crucial word. Now, what caused that word to be used in terms of what was the actual intelligence, we just don't know because the administration hasn't really provided it. (ph)

SMERCONISH: Interesting that you reference the the law that would apply here because I was thinking about international law and how anticipatory self-defense is appropriate, but we think of it in a context of use against an invading force and not against a leader. Isn't that what makes this case rather unique?

BERGEN: Yes. I think -- I mean, you know, Max Boot, our CNN colleague, pointed out on Friday that this is the first time that the United States has killed the senior military leader since 1943 when the United States took down the Japanese plane carrying the architect of the Pearl Harbor attack.

So you know, that is pretty unusual, but, you know, we know from history that administration lawyers can often find a legal rationale for what the administration is about to do whether that's waterboarding in the post 9/11 era or killing an American citizen during the Obama administration or now this.

SMERCONISH: OK. So let's talk about a political rationale. I want to put up on the screen a very interesting tweet yesterday. It was Vice President Mike Pence who sent this out. It was part of a continuum of tweets and he was explaining the rationale for taking out Qasem Soleimani. [09:05:04] Look what he said, Peter. "Assisted in the clandestine travel to Afghanistan of 10 of the 12 terrorists who carried out the September 11 terrorist attacks in the United States." When I saw that, I thought shades of the Iraq misdirection. What do -- what do you think?

BERGEN: Well, pretty much everything in that tweet is not correct and if that was a standard, you know, the United States would somehow have been assisting the hijackers because they all received visas to the United States and then many of them overstayed those visas. I mean, so the fact is Iran -- Al-Qaeda folks have transitioned to Iran in the pre 9/11 era and certainly Al-Qaeda leaders have lived in Iran under some form of house arrest for many years after 9/11, but this is a very different statement than sort of saying that somehow Iran was complicit in the 9/11 attacks, which the 9/11 Commission completely dismissed.

SMERCONISH: Right. By the way, I want to put on the screen my response. I retweeted Vice President Pence. Here's what I said. I said, "Ten of 12? You're missing seven and why aren't you talking about the 15 of 19 who were Saudis? And let's just continue your thought. The 9/11 Commission found no evidence that Iran knowingly assisted any part of the plot of September 11.

BERGEN: Yes. And, you know, the reason that we had 15 out of the 19 hijackers were Saudis, it's very easy for Saudi citizens as a general proposition to get visas to the United States and, you know, there were no Iranians involved in the attack and, you know, there were no Iranians in Al-Qaeda itself. So look, I mean, this is a kind of crazy conspiracy theory that for some reason the vice president is pushing or somebody who is managing his tweeting account.

SMERCONISH: Peter, I want to flip the other side of the aisle and look at the Democratic response. On the screen, here comes vice president -- former vice president Biden's response in part. He said this, "No American will mourn Qasem Soleimani's passing. He deserved to be brought to justice for his crimes against American troops and thousands of innocents throughout the region. He supported terror and sowed chaos. None of that negates the fact that this is a hugely escalatory move in an already dangerous region."

Can you have it both ways? I noted that Elizabeth Warren also said this guy had blood on his hands, American blood on his hands. Can you say both, well, he deserved to be taken out, but not in this fashion?

BERGEN: You know, I mean, look, history will tell whether this was a bold move that, you know, took out a real enemy of the United States or a really reckless move that kind of amped up the problems in the region in such a way that, you know, is detrimental to the safety of Americans. If indeed we are more safe, if Americans are safer, why is it that, you know, the State Department's urging Americans to leave Iraq?

Anyway, look, I -- you know, the thing is very politicized and the fact is is that killing SoleimaniI think, you know, was a good thing for the United States. Will it ramp up pressures in the region? Of course it will. Is this a calculated risk that may blow up? Maybe. Is this a calculated risk that may pay off? Maybe. We don't know yet.

SMERCONISH: I think that's fair. Thank you, Peter Bergen. I appreciate your thoughts.

BERGEN: Thank you, Michael.

SMERCONISH: Make sure you're tweeting me @Smerconish or going to my Facebook page. I'll read some responses throughout the course of the program. This comes from Facebook I think. What do we have? "Unless you or I are cleared with the highest security clearance, we do not have to know the specifics. We only have to trust that decision resulting in the ending of the life of a killer of Americans."

Ed, I'm thrilled that the guy's gone, but I think it's entirely appropriate to be demanding of this administration -- in fact, I'll say especially this administration given its record of untruthfulness on a lot of national security matters to know specifically what exactly was being planned that you have knowledge of. How could that corrupt or in some way diminish national security interests for us to know? I want to know the answer to that.

One more if we have time. Here it is. "Isn't it ironic how now we have the greatest intelligence community in the world according to Trump. For three years, he's done everything he could to discredit it?" Charles, I had a radio caller or two point that out yesterday that, as you have been saying, he was hammering the intel industry since he -- intelligence community since he came into office and now is very reliant on them and saying that he had no choice, but to act at that time.

Make sure that you're tweeting me and I will continue to read responses and answer today's survey question at Can we put that back on the screen? Here it comes. Was President Trump justified in ordering the assassination of Iranian General Qasem Soleimani? Vote and I will give you results at the end of the program.

Coming up, was President Trump justified? We'll find out. And also as Nancy Pelosi continues to withhold articles of impeachment awaiting details on the Senate procedure, who holds the upper hand as between Speaker Pelosi and Majority Leader Mitch McConnell?


And this Monday, the sexual assault trial of movie mogul Harvey Weinstein begins with some of his 80 accusers saying they'll show up in the courtroom. What is his defense and will he take the stand? I'll ask his lead attorney who famously said if you don't want to be a victim, don't go to the hotel room.

Plus, is a crime even more criminal because the perpetrator did so out of hate of a particular group or does that tread too close to prosecuting thought crime?


SMERCONISH: The New Year begins with an impeached American president, but no Senate trial date. Yesterday's exchange between Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi left us no closer to resolution of when a Senate trial will begin and what its rules might be.

My own view is that McConnell is running out the clock, content to have the entire process delayed until Americans are casting ballots in the 2020 election, strengthening the White House argument that this dispute should be settled at the ballot box. The holidays interrupted any momentum Democrats might have enjoyed for impeachment and now with the threat of war with Iran escalating, it's difficult to see how they'll get their mojo back.

Joining me now to discuss is "Washington Post" columnist Karen Tumulty who wrote this piece, "Democrats are the ones who stand to suffer by delaying the Senate impeachment trial." Karen, let me give the audience a little taste of what you wrote. Here's a paragraph from your essay.

We have reached the point at which Democrats are going to have to make a choice. Do they want to squander precious days and weeks tilted against an impregnable Republican wall in the Senate or do they want to make their strongest case for removing Trump to office to the people who might actually do it -- the voters?

Can they walk and chew gum at the same time? Can they pursue both paths successfully?

KAREN TUMULTY, POLITICAL COLUMNIST, THE WASHINGTON POST: Well, it's becoming more and more difficult thanks to the calendar and I've covered Nancy Pelosi a long time. I think that, you know, when the House gets back to business next week, we're going to see her transmit those articles within a matter of days because her instincts are really sound on these things and the Democrats will continue and should continue to point out that the process in the Senate is not exactly a fair trial. But at this point, we are less than four weeks away from the Iowa caucuses.


The next big debate on the 14th, three of the five people who have qualified for the stage may find themselves sitting in the Senate chamber silently, leaving, you know, an entire debate stage just right before the caucuses to Pete Buttigieg and Joe Biden. So things are going to pick up very, very quickly. By mid-March, we probably are going to know who the nominee is.

SMERCONISH: I note your use of the word silently. They'll be silently in the Senate as this plays itself out, but is it, politically speaking, necessarily a bad thing for Elizabeth Warren, for Bernie Sanders, for Cory Booker, for Michael Bennet -- I feel like I'm missing somebody from the -- from the list -- Amy Klobuchar, no disrespect -- I mean, they will be front and center. I recognize that Mayor Pete and Joe Biden could be back in Iowa and have the stage to themselves there, but I'm not sure of the political calculation.

TUMULTY: Well, the thing -- right now, the Democratic race is extremely fluid. I mean, all you have to do is look at Bernie Sanders' rise over the past two or three weeks and when you go out on the trail, and the candidates will tell you, people don't ask them that much about impeachment. They ask them much more about their views on issues that are actually going to affect their lives in the long term and I think with what is going on with Iran, you're also going to see a lot of voters suddenly having questions that they didn't have on national security.

So again, we are at a very, very fluid moment at this -- at this moment in the race. A lot of people haven't made up their minds, not only in Iowa, but in the big states that are going to be following very shortly after. The voters have a lot of questions that they want these candidates to be out there answering.

SMERCONISH: Well, did Nancy Pelosi misjudge the situation by thinking she had leverage over Mitch McConnell that really doesn't exist? Meaning, should she have transmitted those articles of impeachment before the holidays?

TUMULTY: She saw that Congress was going on a break and there was probably no great downside for a short delay while nobody was in town anyway, but again, I think that things are beginning to change. I also think, by the way, that the dynamic here could begin to change for her vulnerable freshmen who are also very much -- you know, their survival is very much on the line here.

It's not that Democrats shouldn't point out that Mitch McConnell has essentially rigged the trial, but they also need to move on and start making their case on other issues which, you know, voters who don't spend all their time on Twitter are more concerned with.

SMERCONISH: OK. So here's something else that you wrote in your column, "The impeachment imperative now, both on practical and substantive grounds, is for Democrats to move on. They are the ones who stand to suffer by delaying the inevitable." What exactly does that mean? Does it mean anything more than transmit the articles of impeachment?

TUMULTY: No. It means continue to bring forward new information, although there is really no evidence that that is swaying public opinion at all. Public opinion surged in favor of impeachment, it had been against it and is now pretty much evenly divided, but it's been essentially frozen since October. But they should continue to develop new information, they should continue to point out that the trial in the Senate is not -- that the administration hasn't provided the witnesses it should have, but they also need to get on to other issues.

SMERCONISH: Quick final question. At one time, I thought that censure was an option that both parties could agree on and move on. Has that ship sailed?

TUMULTY: Yes. I also thought censure was an option back when we were talking about the Mueller report, but I think that the president's actions with respect to Ukraine really changed that entirely.

SMERCONISH: Karen Tumulty, thank you so much. We appreciate your being here.

TUMULTY: Thank you.

SMERCONISH: What's going on in social media? This comes, I think, from Facebook. What do we have? "Please stop enabling Trump this year." OK. I'm enabling Trump by having a conversation as to how the impeachment process is going to play itself out? That's not making any sense.

Ladies and gentlemen, upcoming, I want to remind you to answer the survey question at Was President Trump justified in ordering the assassination of Iranian General Qasem Soleimani? Make sure you're voting.

Up ahead, Harvey Weinstein's sexual assault trial begins Monday. His lead attorney is female. Does that make it easier or more difficult to cross-examine his accusers? I'll ask her.


DONNA ROTUNNO, HARVEY WEINSTEIN LEAD ATTORNEY: If you don't want to be a victim, don't go to the hotel room and if you don't want to be a victim, don't sign an NDA. Then go out onto Fifth Avenue, take a megaphone and talk about what you want to talk about.



SMERCONISH: On Monday, the trial of movie mogul Harvey Weinstein begins in New York. When the story of his sexual misconduct broke in 2017, it ignited the #MeToo movement. Some of Weinstein's more than 80 accusers plan to attend, but only two of their claims are at issue in this criminal case. Weinstein has denied all charges and has countered by claiming to have been a champion of women in film. I spoke earlier with Weinstein's lead attorney, Donna Rotunno.


SMERCONISH: Hey, counsel, tell me if I'm correct. This seems like one of these cases where, at the end, you, the defense lawyer, are facing the jury and saying, hey, I don't like my client either, but that's not what this case is about.

ROTUNNO: Well, I don't know if that's true. I mean, I actually get along with Harvey quite well. I think for me, this is about talking to a jury about the fact that you don't have to like everything he's ever done in his life to find that he's not a rapist.

SMERCONISH: You've said that he might be a sinner, but not a rapist. What's the sin that he'll admit to?

ROTUNNO: Well, he cheated on his wife, he made very bad decisions in business in terms of how he treated people and he'd be the first one to admit those things were were not nice.

SMERCONISH: Is the defense in each of these instances one of consensual sex?

ROTUNNO: Yes. Consensual sex and a ...

SMERCONISH: Don't you require ...

ROTUNNO: ... and a history of a -- of a relationship, a history of a relationship.

SMERCONISH: Don't you require his testimony in order to make that defense effectively?

ROTUNNO: I don't think you do and it's possible that he may take the stand depending on how the evidence plays out, but in this case, we have a lot of evidence that shows a continuing relationship between him and the women who are charged in this matter.

SMERCONISH: And I recognize that there's an important distinction here between the accusers generally and those that are going to testify or may testify in this particular case.

[09:25:06] But what would you say to the public that is drawn by the sheer number of accusers, 80 or so women who have made a similar allegation about Harvey Weinstein?

ROTUNNO: Well, I think you have to look at those accusers with a very skeptical eye given the fact that the number that we hear in the media has absolutely nothing to do with what we're going to hear about in a criminal case. So when we hear this number, that number has nothing to do with what's happening in the criminal case and we, of course, are going to expect that the jury looks at the evidence and the evidence only.

And although we understand that that's a difficult task and something that's difficult to ask, we're going to make sure that we continue to remind them of that.

SMERCONISH: Right, but you'd have to be living under a rock not to know that there were dozens of women making a similar claim about Harvey Weinstein. How do you find a fair and impartial jury in that context?

ROTUNNO: I think in some ways, that number sort of helps us because once the jury sits down and the jury hears that this is only about two women, I think they start to wonder how truthful those other circumstances are or, if there were so many, why aren't they a part of the criminal case? So I think in some ways ...

SMERCONISH: You do ...

ROTUNNO: Go ahead.

SMERCONISH: I was going to say two women, right, but you do have to deal with the so called prior bad acts witnesses and my understanding is that you could be facing four of those in this, double the number of accusers. ROTUNNO: Yes. You're correct and we have to deal with those prior bad acts witnesses and we will do that. Their testimony, I think, in the end, will not be very compelling to the jurors for a variety of reasons and once the jury hears the evidence, they'll make that call, but we think that we have good evidence to be able to show that these circumstances don't rise to the level of what the prosecutors believe that they do.

SMERCONISH: Is it easier or more difficult for you as a female defense attorney to cross-examine a female accuser?

ROTUNNO: In terms of easier, I mean, my male counterparts are just as qualified and able to do what I'm able to do, but I think my role as a woman is really more important in the effect of the listener. So when the listener watches me cross-examine a female, I think they view that differently. They view the questions I ask differently. I think that they look at men asking the same questions potentially as being bullying or maybe feeling sorry for the women when they're being questioned.

I think for me, a woman speaking to a woman is a different conversation and it has a different effect on the listener, which is the trier of fact ...


ROTUNNO: ... in our situation.

SMERCONISH: What if that female that you're cross-examining is a celebrity, like in this case Annabella Sciorra?

ROTUNNO: You know, Annabella Sciorra is an actress and she has spent an entire life acting for a living and I anticipate that she will be an excellent witness on the stand. I'm sure that she will be prepared to answer my questions, she will be ready for what I'm going to ask her and again, I think the circumstances and the facts and the evidence in the case will show to the jury that her statements don't rise to the level of what the prosecutor is asking the jury to convict Mr. Weinstein on.

SMERCONISH: And I come back to a question I asked previously which is one of, OK, but if Annabella Sciorra is telling one set of allegations or facts and you don't have Harvey Weinstein directly testifying to rebut that, can you nevertheless provide him with a successful defense?

ROTUNNO: Well, I think you're forgetting that our system of justice requires the government to prove Harvey Weinstein guilty beyond a reasonable doubt. The system of justice does not require Mr. Weinstein to get up and prove himself innocent. That's not the -- that's not the foundation. The jury's going to be told that they cannot consider whether or not Mr. Weinstein testifies in their decision-making process.

And I think that once the jury sees the evidence and they see the communications and the conversation and the length of time that it took somebody to come forward, the fact that for years, she claimed nothing happened -- I mean, we have a wealth of evidence in our arsenal to be able to say that these cases don't rise to the level of rape.

SMERCONISH: Final question. On balance, the #MeToo movement, good or bad for women?

ROTUNNO: I think there are many good things that come from MeToo, but in the end, if MeToo strips you of your rights to due process and a fair trial, then as a criminal defense attorney, I have to say that there's problems with it.

SMERCONISH: Right. My question was for women. I think your answer is to refer to your client, Harvey Weinstein, the claim that he's been stripped of due process. I take it that's what you mean. Straighten me out if I'm wrong.

ROTUNNO: No. No, you're not wrong.


But again, I'm not -- I'm not claiming that there are not good things that have come from MeToo. But in terms of it being good for women if we -- if we live under a system, whether it's the justice system, whether it's a system of social justice, to say that we must believe someone just because they make a claim, that's problematic for you, for me, and for every American citizen.

So it can't be that, you know, we just believe everything everybody says. There's cross-examination, there is -- there is our ability to ask questions in regard to get to the truth and get to the bottom of an allegation and that's what we're going to do.

SMERCONISH: Appreciate your time.

ROTUNNO: Thank you, Michael.

SMERCONISH: Pretrial conference on Monday, jury selection on Tuesday. Trial expected to last about eight weeks.

What has come in from social media? I think this comes in from Twitter.

Smerconish, perhaps today's survey question should have been, "Will Harvey Weinstein have an advantage by securing a female attorney."

Brian, male, female, she's sharp. He's got quality counsel. You'd have to say that after watching that conversation, right?

Still to come, according to the Supreme Court a person burning an American flag is practicing their right of free speech, but a person burning a gay pride flag, someone who did that recently was slapped with a hate crime charge that normally carries a max of five years in prison.

My next guest says, a hate crime is only a step away from a criminalizing thought. Myron Magnet is standing by to explain his reasoning.


SMERCONISH: So what's the difference between regular crime and a hate crime? The Supreme Court upheld up in 1989 that burning the American flag is protected speech, but what if instead of red, white and blue the flag is made up of rainbow stripes? Are you free to burn that?

Last month a judge in Iowa sentenced a man to 16 years in prison for taking a gay pride flag from a nearby church and burning it in front of a strip club and expressing animosity toward the LGBT community. While his long sentence was partially due to his two previous felonies which made him a habitual offender, he was charged with a hate crime, which carries a maximum sentence of five years in prison.

My next guest argues in his opinion piece in the "Wall Street Journal" that "Hate Crime Is Only A Step Away From Thoughtcrime" writing -- quote -- "Designating an offense as a hate crime criminalizes not the action but the idea that supposedly impelled it. Here we are but a step away from the 'thoughtcrime' George Orwell described in '1984.'"

With me now is Myron Magnet. He's the editor-at-large of "City Journal." He's also the author of "Clarence Thomas" and the "Lost Constitution."

Mr. Magnet, much of what you write makes sense to me. I've always struggled with this issue. But let's begin by saying that not all speech is deserving a protection by the First Amendment, defamatory speech.


You can't yell "fire" in a movie theater. I mean, there are some things that you just not permitted to say and act upon, right?


SMERCONISH: How do you deal with the anti-Semitism among us?

In today's "New York Times" by way of coincidence, I hope you can see this headline. If not, I'll read it to you.

MAGNET: Please, read it to me.

SMERCONISH: It says, scrutiny reveals a rise in anti-Semitic crimes. The data all indicating that anti-Semitism is on the rise.

I have a problem thinking that the person who spray paints a swastika on a synagogue is deserving of only the same punishment of someone who tags a subway station, graffiti in a subway station.

MAGNET: Oh, Michael, I --

SMERCONISH: how do you resolve those two issues? MAGNET: I agree with you, Michael. Remember that this man was also charged with harassment. It was third-degree harassment. We also have laws against intimidation. And if the person is shown to have the intent of terrorizing people from doing what their normal activities are, then that that's an additional crime and that should be punished accordingly.

So, the point is what did you want to do? We have laws going back to reconstruction that don't allow you, for instance, to terrorize free blacks, and these laws can be used all the time.

The point is, are you allowed to say I don't like the American government? Yes, you are. Are you allowed to say, I think that homosexuality is a sin, yes, you are. Are you allowed to say, I don't want a black person to live next to me. Yes, you are. But you cannot then do something to terrorize that black person or that Jewish person from buying the house or renting the apartment next to you. That's against the law.

So, it's actions --

SMERCONISH: But if I torch -- if I torch -- if I torch the rainbow flag, aren't I intimidating my gay neighbors?

MAGNET: If you're torching it in front of your guy neighbors' house and telling them, I hate you, then you are guilty of maybe harassment. I don't know that you're guilty of intimidation. But do you really want to send somebody to jail for 16 years for doing that?

SMERCONISH: "The Wall Street Journal," your op-ed, had this summary of what's going on among us. "The New York area has experienced a rash of what Governor Andrew Cuomo denounces as hate crimes. Swastikas have been scrawled in largely Orthodox Jewish neighborhoods.

Adolescent thugs have assaulted Hasidim on the streets. In mid- December three customers and a cop were murdered in an attack on a Jersey City, New Jersey" -- kosher's market -- kosher market in Jersey City. "On Saturday, a madman stabbed five people at the home of a rabbi in Monsey, New York, north of the city."

Apply what you're expressing to me to those cases.

MAGNET: Oh, sure, I will. There are two things going on here.

One is there's a massive failure of law enforcement going on in New York City, in New York State so that we no longer do the broken windows quality of life policing that we started to do under Giuliani, which cut crime by 80 percent, which cut murders by over 80 percent. So when people know that the cops are watching, they do not do things like scrawling graffiti, including scrawling swastikas.

They know that the cops are watching. And so that the -- the pre- socialized -- the unsocialized adolescents don't act out in this way. The madmen living in the streets don't act out this way. That's what we had in the Monsey stabbings. And also failure of law enforcement. This guy had a whole bunch of anti-psychotic medication that he didn't take. We have Kendra's Law in New York which says that if you're a crazy person, you got to take your meds, or you'll be locked up in a psychiatric ward and made (ph) to (ph) (INAUDIBLE). That's thing one.

Thing two is it would be very nice if black leaders like Al Sharpton and Louis Farrakhan did not preach anti-Semitism, if we had not had the crown heights incitement 30 years ago, of three days of rioting left to go. So, that when they're -- and not to say that most blacks are anti-Semite. It's to say that when you have poorly socialized kids or crazy people who are looking for somebody to take their hostility out on, then they're going to take it out on Jews. To call it a hate crime --

SMERCONISH: Let me ask you a direct question --

MAGNET: -- is that going to make it -- is that going to make it -- is that going to stop it? I don't think so.

SMERCONISH: OK. But the madman who breaks into the rabbi's house and stabs five people --


MAGNET: Yes --

SMERCONISH: -- hate crime, yes or no?


SMERCONISH: You're not going to -- you're not going to -- so you're going treat him as if he were someone who went into a different home, not with an apparent religious bias on which he was acting?

MAGNET: What -- what -- what -- what --what would the difference be, Michael? He is a -- an attempted murderer, right?


MAGNET: What more can you give him? What more can you give him beyond the many years he will get for attempted murder or --

SMERCONISH: Well, the argument -- the argument -- I'll give you the argument --

MAGNET: But -- but hang on, hang on. Hang on just one second.

OK. Hang on just one second. The law --

SMERCONISH: The argument is this. The argument is that a person like that is inspiring, instilling fear in a particular community unlike the guy that breaks into your house or my house and acts likewise. Quickly, but you get the final word.

MAGNET: Yes. But the question is it's the person who committed the crime who's on trial, and the law can ask only two things about his state of mind. Is he sane and did he intend to do the crime. And that's it. You're a lawyer. You know that.

SMERCONISH: By the way, that look of yours, what do you think for me? I've got part of it going here?

MAGNET: Well, you know, when the hair goes on top, you should put some of it on the bottom.


SMERCONISH: My sentiments exactly. Myron Magnet, thank you.

MAGNET: Such a pleasure, Michael.

SMERCONISH: I hope that you are answering the survey question, folks, at

"Was President Trump justified in ordering the assassination of Iranian General Qassem Soleimani?" Results very soon.

Still to come, what law did California just passed about doctors giving vaccine exemptions and like many other novel regulations devised in the Golden State, will this, too, go national?


SMERCONISH: While California has often been on the vanguard of the nation's cultural shifts -- think hula hoop, Frisbee, skateboards, McDonalds, it also often leads the way in legislation. Changes that often cause the rest of the country to initially snicker, have a way of eventually migrating east.


So, every year I like to look at what laws California has just enacted. In the past, such measures have included everything from no- fault divorce, marijuana decriminalization. By the way, they're not always liberal. Consider California's move to ban affirmative action or enact property tax reform.

Anybody remember Howard Jarvis? Well, hundreds of new California laws took effect on January 1st. Which ones might become nationwide?

Joining me now is John Myers. He's the Sacramento bureau chief for the "L.A. Times." He co-authored the piece "How Will California's New Laws Affect You?"

Hey, John, I want to tick through four or five of them if we have time. Let's begin with independent contractors. What's the change there?

JOHN MYERS, SACRAMENTO BUREAU CHIEF, LOS ANGELES TIMES: Yes. This is an interesting one, Michael. I mean, this really is a debate about the nature of work, I think, in the 21st century. There was a California Supreme Court ruling that said -- that limited the use of independent contractors in businesses said that there had to be a strict litmus test as to who could be an employee and who could be a contractor. This codifies it but this has been an intense debate about when it's appropriate to have an independent contractor.

There are people who say, look, if you're not an employee, you don't get benefits, you don't pay payroll taxes. On the other side people who are like the independent contractors like the flexibility and the freedom of that.

So this says that there are strict limits. There is a litmus test to this. And I can tell you the real flash point out of all of this, Michael, has been the big tech companies Uber and Lyft whose business model depends on independent contractor don't want this to apply to them and have threatened to take it to California voters in the fall to exclude them from this new law.

SMERCONISH: Yes. I can see their argument that it will stifle the sort of entrepreneurship that has made them so successful. Let me go to number two.

Consumer privacy. John, I've read a lot about it. I don't think I still understand it. Explain it to me.

MYERS: I think a lot of people are still trying to figure this one out. You're absolutely right.

I mean, at its -- at its most basic, I think, this is an easy one to understand. Consumers have the right in California to know who is sharing their data, who is buying their data, and they have the right to tell the company, delete my personal data. This is going to have a national impact, I mean, there's no doubt about it. These are large U.S. companies that have to react and have to change their business processes.

We are already seeing on Web sites little icons, little remove my data logos that have been put up in the last few weeks. There are a few months to figure this out. The implementation doesn't fully kick in until the summer. But this is a big topic now about privacy, of consumer data.

And I will tell you, Michael, there is a move to even strengthen this brand-new law this year and, again, give consumers more power over that information.

SMERCONISH: Control of data has become a big revenue source for many businesses. You'll laugh, but I saw an episode of "Shark Tank" this week that reminded me of this fact where companies acquire other companies simply because they want access to that information. So it will have quite a significant ripple effect.

Here's number three on my list. The president on a national level has been dismantling the Affordable Care Act and yet here in California the individual mandate is alive and well.

MYERS: Yes. No state has embraced the Obamacare law over the last several years more than California in a lot of ways. And so you're right. When President Trump and Republicans in Congress effectively killed the individual mandate, California now says, well, you've got to have health insurance in California.

So effective now, all Californians are required to have health insurance. They -- and it will -- it will work pretty much like the national law, the level of coverage that you would have to have. And if you don't have it, it's a penalty on your taxes that you pay next year, and that money actually goes into providing subsidies for health care insurance for Californians who are middle-class in their income.

Again, this is the limits, I think, of what a state can do, especially a state -- a Democratic liberal state like California in the face of the Trump administration and the efforts in Washington.

SMERCONISH: Rising housing prices, a homeless problem that is related, have led to a cap on rental increases. Explain that to me.

MYERS: Yes. This is a statewide cap on how much rent can go up. It says that rent can't go up more than 5 percent a year for the next decade across California. Now, there are cities in California that already have rent control rules. Los Angeles and San Francisco for some renters.

This is statewide. This is much broader. This is one effort in that big issue that you're referencing there. I mean California has an affordable housing crisis, homelessness crisis that is a subset and offset of that. This is one effort to try to get a look at that that say these renters need some predictability in what they are paying month to month.

SMERCONISH: Finally, there have been a number of high-profile controversies on the subject of vaccinations. What's the change in that regard?

MYERS: Yes. This one really I would say, Michael, is a viral media effect here of -- especially people who are critics of vaccines and who have asserted they don't want their children to go through the vaccine protocol.


Of course you have to have the vaccines to go to school. The state has been talking a lot about limiting the number of exemptions that are given to kids from these vaccine protocols. This new law simply gives the state public health department a lot more oversight into doctors writing these medical exemptions. Says they're going to review them. Says the doctors who write too many medical exemptions are going to have their practices reviewed.

This was fiercely debated by scores of vaccination critic parents and by vaccination supporters here in Sacramento and the California state capital. I don't think we've heard the end of it but this is going to give the state more oversight of who gets exempted from those vaccine rules.

SMERCONISH: Hey, John, final question. What is it about California? Why is California so often on the vanguard -- I said at the outset when I was introducing this conversation, sometimes looked at derisively by the rest of the country. And then these things end up migrating eastward. But what is it that makes your state such a laboratory?

MYERS: You know, it's a good question. I've lived out here about 25 years. And I tend to think that California's dream is an experimentation of the American dream. It's ways to make the American dream better. At least that's the premise that I think a lot of lawmakers and a lot of Californians began with.

And I think there is this notion that you have to figure out where the level of government should be. You said it very well at the top. It's not all liberal. It has been conservative in the past but it is an experimentation.

And I would also tell you quickly I think it is this merging of what elected officials can do in a California state legislature and what voters can do on the ballot in California. And there is a push/pull pressure there of like, if we don't act in elected office they're going to act at the ballot box.

So there is experimentation. And we get criticized for it some but as California goes, so goes the country a lot. And I think in some of the laws we've talked about this morning, you're going to see a national conversation moving forward because of what's been happening here.

SMERCONISH: Beach Boys, Van Halen, Red Hot Chili Peppers. Thank you, John.

MYERS: Thanks so very much.

SMERCONISH: Still to come, your best and worst tweets and Facebook comments and your final chance to vote in today's survey question at

"Was President Trump justified in ordering the assassination of Iranian General Qassem Soleimani?"

Go vote.



SMERCONISH: Hey, time to see how you responded to the survey question at

"Was President Trump justified in ordering the assassination of Iranian General Qassem Soleimani?"

Survey says this -- 72 percent say no. Wow, with nearly -- with more than 15,000 votes. I'm really surprised by that. Because I think it was justified, but "The New York Times" in a lead editorial today has a really -- it's like they anticipated today's survey question. Can we put the first paragraph up?

Listen to this. "The real question to ask about the American drone attack that killed Maj. Gen. Qasem Soleimani was not whether it was justified, but whether it was wise."

Many pieces of the puzzle are still missing, but the killing is a big leap in an uncertain direction. I think they probably have a better question than I had. Not the justification, but the wise question.

Here's some social media that came in during the course of the program. What do we have?

Smerconish, wrong question. Trump may be justified but it doesn't mean it was the right thing to do.

Janet, there you go, you're on the same page as "The New York Times." I think he was probably justified, as Obama would have been justified, as W would have been justified. But wise? Unclear.

What else? The lead attorney for Harvey Weinstein is no joke. The prosecution better be on their game. The art of lawyering.

Mitsubishi, I thought she was sharp as well. I thought -- you know what I thought was interesting? Because one of the more interesting moments in that trial is going to be when Annabella Sciorra, man, I loved her in "The Sopranos," when she testifies. And when I asked what it will be like to cross examine a celebrity -- actually I said, a female cross examining a female who also happens to be a celebrity. Did you hear what she said? I'm sure she will be a great witness and she has spent her entire life acting. Maybe I'm reading too much into that I thought there was a message there.

Hey, join me for my "American Life in Columns" tour. Pittsburgh, Manchester, sold out shows in St. Louis and Raleigh.

Thanks for watching. See you next week.