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Smerconish

First Time In Three Months 19,000 Gather Under The Same Roof For President Trump's Rally In Tulsa; Are Businesses Liable When A Customer Catches COVID-19?; What Georgia Law Says About Tasers And Deadly Force; Could Trump Force Out U.S. Attorney?; Are You Proud To Be An American? Aired 9-10a ET

Aired June 20, 2020 - 09:00   ET

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

[09:00:00]

(COMMERCIAL BREAK)

MICHAEL SMERCONISH, CNN ANCHOR: Tumult in Tulsa. I'm Michael Smerconish in Philadelphia. For the first time in three months, there will be 19,000 people under the same roof in the United States. I'm well aware of the demonstrations that followed the death of George Floyd and recognize the hypocrisy in being concerned about one type of gathering and not another.

Still, this feels different. It'll be a campaign rally and here are the rules. The Trump campaign has said every attendee will be subjected to a temperature check and offered hand sanitizer and a mask, although masks are not required. Six feet of separation? It sounds like these folks could be within six feet of six other people while the president is speaking, not to mention entering and exiting, visiting the bathroom or concession stand.

Tonight's event stands in stark contrast to the creativity exhibited by others who have a similar need to attract crowds. Consider that the NBA will soon play an abbreviated schedule and players will have the option of wearing a smart tech ring that could provide early detection of COVID-19 or consider the fact that on July 18, comedian Jim Gaffigan will perform at a Scranton casino in the parking lot. Billing himself as the drive-thru comic, patrons will be charged by the car. Vehicles will be spaced according to social distancing.

Couples with wedding dates, that's another example. Wedding dates that fell amidst the pandemic have also had to deviate from their plans, like the Washington Heights New York couple that was married in the street, officiated by a friend hanging out of a fourth-floor window. I myself had sold-out speaking commitments cancelled due to COVID, so I recorded my speech in an empty theater for an upcoming CNN special.

None of that ingenuity will be in evidence tonight. Why? Presumably because the president perceives precaution as weakness and he wants a split screen that shows himself surrounded by thousands while Joe Biden is speaking to empty rooms. If the president ordered that people wear masks tonight, I'm sure the attendees would do so, but he won't because he doesn't wear one himself, not even when touring a mask manufacturer. To him, that's an acknowledgment or a reminder that the deadly virus is still very much among us, but it is.

The World Health Organization warned Friday that the world is in a new and dangerous phase as the global pandemic accelerates. The world recorded about 150,000 new cases on Thursday. That's the largest rise yet in a single day according to the WHO.

Nearly half of these infections were in the Americas as new cases continue to surge in the United States, Brazil and across Latin America. No wonder then that Apple just announced it is reclosing 11 stores in four states -- North Carolina, South Carolina, Florida and Arizona.

Look, the nation has a rich tradition of individualism, manifest destiny, self-determination, call it what you will, but in this case, we are all making decisions not only for ourselves, but for everyone with whom we will come in contact. The data suggests that younger Americans are at an extremely low risk of death, but older Americans and those with underlying illness are at a heightened risk of fatality.

So how should the former and the rest of us protect the latter? It's pretty straightforward -- by wearing masks, social distancing and washing our hands and that goes for whether you're a protester or a president, which leads me to this week's survey question at Smerconish.com. Should masks be required -- not just recommended, required -- for large gatherings, be they political rallies or street protests?

Joining me now from Tulsa is Tim Murtaugh. He's the communications director for the 2020 Trump campaign. Hey, Tim. Thank you so much for being here. Why not simply require that everybody wear a mask tonight?

TIM MURTAUGH, DIRECTOR OF COMMUNICATIONS, TRUMP CAMPAIGN: Well, we've chosen Oklahoma because it is practically the most open place in the country and we will be providing masks to attendees that they can wear if they want and everyone who comes in will get a temperature check. Anyone with a temperature will not be permitted inside. We'll also have more hand sanitizer than any group of people could ever possibly want.

So all of the precautions are in place and, you know, people -- I think the -- I'm pretty sure that CNN has covered the COVID crisis pretty well and so people are certainly aware of the situation and people -- as you mentioned in your lead-in, people have the freedom of choice and over a million people requested tickets to the president's event here in Tulsa and people come in with their eyes wide open and they know that we have taken the precautions to protect them.

SMERCONISH: But the problem with the individualism argument is that when you make a decision, if you, Tim Murtaugh, were making that decision, you're making it also for me to the extent I come in contact with you.

[09:05:00]

As we all know and it's been drilled into us, the purpose of that mask is to protect those with whom you will then be in contact.

MURTAUGH: Well, individualism in the United States and freedom in the United States is not just an argument, Michael, it is actually how we live as Americans and it's how Americans always have lived and people do have the freedom of choice whether to come here or not, but again, as you alluded to in your opening, I don't recall this level of concern when there were tens of thousands, even hundreds of thousands of demonstrators and protesters in cities all across the country, including your hometown and my hometown of Philadelphia a couple of weeks ago.

I don't remember the social distancing shaming that CNN and other networks were doing at that time and it was because it was an issue and a cause that the producers and news editors in your organization agreed with, but now when it comes to being a Trump rally, well, all of a sudden the rules are back and it's a rediscovery of the coronavirus crisis which was not, I would say, on the front lines of your thinking when it was the protests you were covering.

SMERCONISH: Well, that may be the case for others, but you need to listen more to my radio program because I've discussed both in an ongoing way. I'll simply say this and then I want to move on to another aspect. The wording of my survey question today very carefully says all of the above. I recognize there's a difference between indoors like tonight and outdoors in a street protest. I want everybody associating with others in a large setting to wear a mask.

Here's what I think is really going on. The president tweeted a photograph -- I'm sure you've seen it -- of Joe Biden speaking in a seemingly empty room where people are engaged in social distancing. Catherine, put that up on the screen. And my theory, Tim, is that it's a political calculus where the polls right now don't favor the president. He wants to remind people that he can draw a throng of thousands and then have a split screen where there's Joe with just a couple of people socially distant. Is that the image he's playing for tonight?

MURTAUGH: Well, I think it was always going to be the image whether we played for it or not and whether there was a coronavirus crisis or not. The fact is President Trump can pack 20,000 seat arenas and we're going to have tens of thousands more people out here in the streets. So people will actually have a choice between whether to go inside or stay outside and the president will be speaking at both locations.

But Joe Biden has never been able to draw a crowd and it will be a split screen to show the great enthusiasm behind President Trump's re- election campaign with tens of thousands of people supporting his reelection versus Joe Biden who couldn't draw a crowd at 120th of that size on his best day outside of the coronavirus crisis anyway.

So whether or not the split screen is going to happen tonight or whether it was going to happen three months from now, it was always going to happen. There is a huge enthusiasm gap, but President Trump's voters would run through a brick wall to vote for him. Ain't nobody running through a brick wall for Joe Biden. We know that. SMERCONISH: But see, you're confirming, I think, what this is really then all about. It's that health is being put in a secondary position so that the optics can show to the Trump base, hey, in those polls, even the "Fox News" poll where I'm getting hammered, don't worry about it because I can still bring people out in Tulsa, Oklahoma.

MURTAUGH: It was always going to be the case that Joe Biden can't draw a crowd and the president can and we're in Tulsa, Oklahoma because it's practically the most open place in the entire country. It was always going to be a contrast between President Trump's leadership, his effectiveness as president and his excellent record of achievement versus Joe Biden who has a 44-year record of failure and he's running on ideas to fix things that he should have fixed in his first four- and-a-half decades in Washington. No one is excited about Joe Biden. No one.

These false polls that you show us -- you know, in 2016, if we believed the public polls, Hillary Clinton would be in the White House right now and the "Fox" poll -- "Fox News" poll is really one of the worst offenders and we know that the president's in a strong position and whether or not we're here in Tulsa or anywhere else, the contrast between the excitement behind President Trump's re-election and just the doldrums that surround the Joe Biden campaign were always going to be in evidence and so that contrast was inevitable.

SMERCONISH: Quick final question if I may. If tonight is so safe, why is a waiver necessary for all the attendees? Why do they have to click an acknowledgment that they are giving up their right to sue if they get sick tonight?

MURTAUGH: Come on now. You know that if we didn't have that waiver, you'd be asking me the opposite question and it's just standard language. I mean, my wife booked a massage the other day and there was a similar waiver on the website for her and if you buy a ticket to a baseball game, on the back of that, there's a liability waiver that says watch out, you may get hit by a foul ball or a flying bat if it leaves the field of play. So that's just standard and, you know, if it were in the opposite situation and we didn't have that, you'd be asking me the opposite question.

[09:10:05]

SMERCONISH: Hey, Tim, thank you so much for being here. Come back.

MURTAUGH: Sure. Thank you, Michael.

SMERCONISH: Could someone who gets sick tonight turn around and sue the Trump campaign? Joining me now to discuss is trial attorney Shanin Specter. He teaches at the law schools of Hastings, Stanford, Berkeley and Penn. Full disclosure, I'm affiliated with his law firm of Kline & Specter. He just published this piece at CNN.com, "Coronavirus waivers and immunity bills are a big mistake." Shanin, I'm going to put up on the screen the waiver that attendees in Tulsa have been asked to acknowledge. I'll read it aloud and then I'll ask you for your assessment. "By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public space where people are present. By attending the rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.," et cetera, et cetera, "Or any of their affiliates responsible, liable for any illness or injury." Your reaction is what?

SHANIN SPECTER, TRIAL ATTORNEY, LAW PROFESSOR: Mike, that waiver is almost certainly not enforceable. A court would find it to be against the public interest, against public policy and not enforce it. Mr. Murtaugh says to you these things are standard. This might be the first political rally in American history where anyone was asked to sign a waiver of liability before going in. So I think that it's pretty clear this waiver is not going to be enforceable.

Mr. Murtaugh said to you just a moment ago that Trump supporters would run through a brick wall for him. What he really means is that they will run through a coronavirus wall for him and that's what's going to happen today in Tulsa. There will be people in that auditorium who will have coronavirus who will not test positively on the temperature check because some people will not be symptomatic even though they have the virus. They will be in the arena, they will spread the coronavirus.

Folks who have signed these waivers will get coronavirus. They probably have very weak lawsuits frankly because a jury will not be sympathetic to their claims since they do know they are assuming some risk of getting the virus, but they will go home and they will spread coronavirus to mom and to dad and to their siblings and to their spouses and to their kids and to others in their workplace and in restaurants and this is a very poor idea.

SMERCONISH: So what is a business -- take this out of the political realm. What is a business to do? AMC flip-flopped yesterday, initially saying that they would not require masks and then saying that they would require masks. What is a business to do in this environment?

SPECTER: Yes, Mike. You're right. AMC flopped yesterday and so did Revival (ph) Theaters as well. They originally said we're going to supply masks, but not require them and then decided to require the masks and that was very smart. What a business should do is very simple -- just follow the rules. Follow the CDC guidelines, follow your state and local recommendations and laws and if you do that, you will not be successfully sued.

You're only required in America to act reasonably. You aren't required to act perfectly and it is reasonable to simply follow the rules and if you do that, there won't be a successful suit. What a business a should do ...

SMERCONISH: Well, let me ...

SPECTER: ... instead of saying, sign a waiver, a business should say we care about you, we care about your health and your safety. We strive to make our workplace safe, our restaurant safe, our business safe. If you see something you think is not safe, please tell us, please tell a manager.

That's a positive message. that's what people want to hear. People want to hear that where they're going cares about their health and safety. What the president is saying today regrettably is I care more about my political future than I care about your health and safety. He'd be much better off for the country and himself if he said please wear a mask.

SMERCONISH: OK. Wait. A quick final response from you to bring this full circle. I can hear the Trump campaign saying, well, wait a minute, Mr. Specter. We are following the rules. There's not a requirement in Tulsa that everyone wear a mask. If there were, then we'd follow that rule.

SPECTER: That's not correct. There is still a common law requirement of reasonable care. It is unreasonable to not require -- excuse me -- 19,000 people, the largest crowd to assemble inside in America in over three months. It's unreasonable to not require those folks to wear a mask.

SMERCONISH: Shanin, thank you for being here.

SPECTER: You're welcome. Thanks, Mike.

[09:15:00]

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? From Twitter, "The president can have a huge rally, but my kid can't have a real graduation. How is that OK?"

Well, I mean the differing result from this, you're not the only one who's providing us with a lot of assessment in saying if they can do this, why can't I do that? Obviously he's free to do whatever he wants and I guess my guest's point is so long as he exhibits reasonable care, as long as he displays reasonable care to all of his attendees. In your case, obviously it was the school that decided it was unwise.

I want to know what you think. Go to my website at this hour and make sure you're answering the survey question. Should masks be required -- not just recommended, required -- for all large gatherings, be they political rallies or street protests?

Up ahead, before Rayshard Brooks was fatally shot by an Atlanta police officer, he pointed a Taser at the officer. This moment is crucial to the entire incident. We examine how Georgia law on Tasers and stun guns could shape the outcome of the case. And just how dangerous is a Taser? We'll take a closer look at its capabilities with the CEO of the company that manufactured it.

Plus, Bill Barr announced that he was replacing Geoffrey Berman, the powerful U.S. Attorney of the Southern District of New York, but Berman is refusing to step down until the Senate confirms his replacement. Is President Trump within his rights to remove him?

[09:20:00]

(COMMERCIAL BREAK)

SMERCONISH: Former Atlanta police officer Garrett Rolfe faces felony murder and 10 other charges after he shot and killed Rayshard Brooks outside a Wendy's drive-through last week. As two officers attempted to make an arrest, video shows Brooks in a scuffle where he grabs one officer's Taser and appears to discharge it. Footage then shows him running away from the officers with the Taser. Brooks points and fires the Taser toward the officer soon after. Officer Rolfe Brooks -- officer Rolfe shoots Brooks.

The video, it's horrifying to watch. The death seems tragic and unnecessary, but how will it be treated under the law? Joining me now is Tanya Miller. She worked as a prosecutor in the Fulton County DA's office. She's now a criminal defense attorney and civil rights attorney in Georgia. Counselor, I want to put on the screen the deadly force standard in Atlanta. I'll read it aloud and then I want to apply it to this case.

"An employee may use deadly force to apprehend a suspected felon only when he or she reasonably believes that the suspect possesses a deadly weapon or any object, device or instrument which, when used offensively against a person, is likely or actually does result in serious bodily injury and when he or she reasonably believes that the suspect poses an immediate threat of serious bodily injury to the officer or others."

Now what I'd like to do is put on the screen that final sequence in slow motion and ask you how will that standard apply to the final sequence. Roll the tape as Tanya Miller explains.

TANYA MILLER, CRIMINAL DEFENSE ATTORNEY: So here you got to really look at this situation, obviously at the moment that the officer uses the deadly force, but you also have to kind of know what was going on before that. The officer is trained extensively on the use of a Taser. He knows that a Taser can only deploy twice.

He knew at the moment he used deadly force that the Taser, at that point, had been deployed twice. I don't think anyone can reasonably say that the officer thought that the giant yellow plastic device in his hand was a firearm. So he knew it was a Taser. He knew it was inoperable after that second deployment and so I think the use of deadly force in that moment is going to be deemed unnecessary.

In addition to that, we know that a Taser is not a deadly weapon. A Taser is not a deadly weapon. It's not a deadly weapon per se and it's certainly not a deadly weapon under the circumstances of this case. So I think ...

SMERCONISH: Doesn't ...

MILLER: ... it's not going to be right (ph).

SMERCONISH: But doesn't Georgia law consider a firearm in a possession of a deadly weapon situation? MILLER: No. A Taser is not a firearm. A firearm is a firearm. It is what the common-sense term means. It's a gun and in fact under Georgia law, a gun is a deadly weapon per se. Now, there can be other objects when you use them in a certain way that become deadly weapons. For instance, it could be a bat. A bat is not a deadly weapon per se, but if you use it in a particular way, it can become a deadly weapon and form the basis for an aggravated assault charge.

In this case, the Taser is more like a bat than it is a gun. A Taser is non-deadly force. When officers use a Taser, they will tell you over and over again that that is less than deadly force. So how is it -- and I think this is what is going to be the problem for officer Rolfe. How is it that in the hands of Mr. Brooks -- a Taser, when an officer uses it, is not deadly force, but somehow becomes deadly force and becomes deadly force after it has been rendered inoperable?

Nobody knows that better than officer Rolfe. Officer Rolfe is a trained Atlanta police officer. He knows how Tasers work. He knows that that Taser had been deployed twice. So I don't think ...

SMERCONISH: Doesn't that ...

MILLER: ... under any stretch of the imagination that can be considered a deadly weapon.

SMERCONISH: Doesn't that presuppose that Officer Rolfe, in the heat of the moment, is able to do a calculus and know that it's been fired twice?

[09:25:05]

And I ask that because I think of all the cases where eyewitnesses differ when they are asked, well, how many gunshots did you hear and one person says, well, I heard five and somebody else says, well, I heard three, in the heat of the moment, would a reasonable officer be able to process, hey, it's been fired twice and therefore doesn't pose a risk to me? You get the final word.

MILLER: Absolutely. And I think ultimately that's going to be a jury question. We don't know what officer Rolfe's position is going to be on that, but certainly he is an officer. He is trained. He is on the scene.

He is there. You can hear the Taser deploy the first time. You can see it deploy the second time and in fact, he switches from a Taser to a gun, so he is making calculations about whether or not this is a deadly situation as it is unfolding and he made the wrong choice and I think you have to look at his intent, right?

And that was critical for the district attorney. Not only after he shot Mr. Brooks in the back twice did he say I got him, but he runs up to Mr. Brooks' body when he's already inflicted a mortal wound on him and kicks him while he's down and then he waits two minutes and 12 seconds before he calls for help, all of these things in violation of his training, all of these things that ...

SMERCONISH: Tanya ...

MILLER: ... in my opinion demonstrate his intent to do harm and to act out of anger.

SMERCONISH: Tanya Miller, thank you for being here.

MILLER: Thank you for having me.

SMERCONISH: The Georgia Bureau of Investigation says Rayshard Brooks took possession of former officer Devin Brosnan's Taser. The Atlanta Police Department confirmed to CNN that Brosnan was issued an Axon TASER 7.

I want to take a closer look at that exact model. Joining me now is Rick Smith. He is the founder and CEO of Axon Enterprises, the Taser manufacturer. Rick, dumb it down for me. I have no familiarity with Tasers. I'll bet the large part of the audience does not either. How does it work?

RICK SMITH, FOUNDER & CEO, AXON ENTERPRISES: So this is a Taser 7 and basically it is a handheld device that is designed to project two darts up to a 25-foot distance and then it can transmit electricity through those darts and that electricity, when it is going through the body of a person, can incapacitate them on a temporary basis. For example, I've been hit with these about seven times. They're quite effective, but intended not to leave a long-term injury.

SMERCONISH: In other words, two shots, but with a total of four darts and as I understand you, almost like a car battery, you need a positive and a negative to make a connection in order for it to be effective.

SMITH: That's correct. If you can see on the front of the device here, there are a total of four round circles representing four dart bores. When I pull the trigger the first time, you would see two darts fire out, a positive and a negative, and if I fire again, you'd see a second set of two darts that fire out.

SMERCONISH: In that video sequence that I've just shown everyone, the slowed down sequence that was from "The New York Times," when Mr. Brooks points his Taser at the officer, first of all, it seems lit. Is there an illumination, is there a flashlight to that Taser? That's my first question.

SMITH: Yes. So if I turn the Taser device on, once it's activated, you'll see there is a flashlight and a laser that comes on, but what you would typically see -- looking at the device, what you really see there is the flashlight.

SMERCONISH: And my second question in that respect is that I see right there on the screen something being emitted from Mr. Brooks' Taser, the Taser that Mr. Brooks now has in his hand. If in fact he's already -- if that weapon has already fired two shots, what might I be looking at?

SMITH: OK. Well, when the device is operating -- I'm not going to shoot the darts here, but I will show you -- this has what's called an Arc display and I can show it here and there you're seeing the high- voltage electricity. Now, in this case the darts are not out.

Once the darts are fired, if the darts have not hit a person, then the electricity cannot go through the wires and through the darts because there's nothing connected on the other end and you may see that same electrical emission happening on the front of the device if the electricity cannot make it through the wires into a target.

SMERCONISH: When members of law enforcement are trained on the use of the Tasers that your company manufactures, what are they told relative to the lethality or the deadly nature, if anything, of them?

SMITH: Well, many police officers do go through a volunteering exposure. That depends on the agency.

[09:30:00]

In terms of the risk, they're categorized as less lethal weapons, meaning that they have a low probability of causing serious injury or death. Independent studies find an injury rate about three injuries out of a thousand uses. But they are trained that there can obviously be extenuating circumstances, for example, a person can fall from a high height and that can cause very dangerous injuries.

And then the type of situation we're talking about here officers do train that if they're incapacitated with a Taser weapon that there is a risk that they would then be helpless and someone could take their firearm. So agencies have policies there that -- treat that as a very complex situation where the officer maybe justified in using deadly force under those circumstances.

SMERCONISH: That was very illuminating. Thank you, Rick. We really appreciate it.

SMITH: Yes. Thank you.

SMERCONISH: Still to come, what would happen if your boss told you to leave your job, and you said, nah, I don't think so? That scenario is actually playing out right now at high levels of the U.S. government.

A U.S. attorney refusing to step down last night after Attorney General William Barr tried to oust him. Who will be forced to blink first? We'll find out in a moment.

(COMMERCIAL BREAK)

[09:35:24]

SMERCONISH: A high-profile ouster not going as planned. Attorney General William Barr tried to oust Geoffrey Berman. He's the powerful U.S. attorney for the Southern District of New York who has investigated a number of associates of President Donald Trump but Berman, not having it. He defied Barr by refusing to step down.

Here's some of the important background. Berman is a Republican who contributed to the president's campaign, according to "The New York Times." He worked at the same law firm as Rudy Giuliani.

Contrary to normal protocol for U.S. attorneys he was never formally nominated for the position by Trump or confirmed by the Senate. He was appointed in 2018 by then Attorney General Jeff Sessions but President Trump never formally sent Berman's nomination to the Senate. After a hundred and twenty days his formal appointment to the post was made by the judges of the United States District Court.

So about an hour after Barr said Berman was set to leave the office, sans job, Berman issued an extraordinary statement. He claims he learned of his own exit from a press release and he took note of the nature of his appointment and explaining why he will not step down.

Quote -- "I have not resigned. I have no intention of resigning my position to which I was appointed by the judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption."

So, does the administration have the power to fire him? Joining me now is Stephen Vladeck, professor of law at the University of Texas of School of Law. He has argued multiple cases before the U.S. Supreme Court and lower federal courts.

Professor, in your Twitter feed, you said, nerds like me will fixate on the technical legal questions here. And that's exactly what I want to do.

Let me put 28 U.S. Code 546 on the screen which reads, "If an appointment expires under subsection (c) (2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of the appointment of the court shall be filed with the clerk of court."

That's how he got the gig, right? And of what significance is that?

STEPHEN VLADECK, PROFESSOR IN LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW: So, I think it's pretty significant, Michael, because historically, the power to remove a government officer is incidental to the power to appoint them. And so, as you say, you know, what makes Geoff Berman really different as a U.S. attorney is that he was appointed by the District Court.

So, there's a separate statute at Section 541 C that says the president can remove U.S. attorneys but that statute actually predates this one. So, we actually have a pretty classic conflict where one statute seems to say the president can do it. And the other statute seems to imply that only the people who appointed Berman, that is to say, the judges on the Southern District can do it. This is why I think this is quite a mess and why Berman thinks he has a leg to stand on in not stepping down.

SMERCONISH: I have that second provision and it is as you represent. Each United States attorney is subject to removal by the president. That seems pretty straightforward. VLADECK: So, I think it's pretty straightforward if you read the text in the abstract.

Here's the problem, at the time that 546, the first provision you mentioned, was enacted the vacancy it was referring to was a vacancy in the 541 appointment. I don't mean to get lost in the weeds. What I'm trying to point out here is when Congress originally wrote the language that you put up first Congress was thinking that it would be up to the district court up until there was a new Senate-confirmed successor to the U.S. attorney.

Now, the president has an argument under 541 that he can do it himself. The key though is the attorney general can't. And so one of the questions we should all be asking today is, did Barr purport to fire Berman, because he can't or did the president?

And then the second question, even if the president fired Berman Barr also announced last night that he was appointing Craig Carpenito who's currently the U.S. attorney for New Jersey to replace Berman. I don't think it's at all clear that even if the president can remove Berman he also has the power whether by himself or through the attorney general to replace him as opposed to once again, having the district court, the Southern District do it.

SMERCONISH: Is the big picture view here as Laurence Tribe represented in his tweet this morning where he said, here's an instance in which Trump's penchant for using unconfirmed acting officials looks like it'll come back to bite him in the butt.

VLADECK: So -- I mean, if I may, I really think the big picture actually is why is this all happening? And that's above my pay grade. But I do think that the real question and what Berman's statement I think brings dramatically to the forefront is what are the ongoing investigations that his purported ouster is meant to derail?

[09:40:10]

I think that's really what we're going to the bottom to. To Professor Tribe's point, I mean, I do think that the provision for judicial appointment of U.S. attorneys is unique in our system. It's really not typical to have executive officers who are ever appointed by judges. But it's for this exact purpose so that the president and the attorney general cannot end run the Senate, for more than a very short period, a hundred and twenty days, when it comes to who's going to have the core prosecutorial power in our 94 federal district courts?

SMERCONISH: Right. In other words this administration has been governing by appointees in waiting, so to speak. If this had followed the traditional route where the president appointed a U.S. attorney who was then approved, confirmed by United States Senate there would be no issue. Trump could fire him and that would be the end of it. Agreed?

VLADECK: Totally and that's how we got here. I mean, the last U.S. attorney for the Southern District who was confirmed by the Senate was Preet Bharara who the president fired in March of 2017. That's how we got here, Michael. We got here because the president fired Mr. Bharara, could not get anyone else through the Senate at least in part because the Senate still has blue slips for U.S. attorneys. Meaning he needed the consent of the Senator Schumer and --

(CROSSTALK)

SMERCONISH: The two senators.

VLADECK: Right.

SMERCONISH: Right.

VLADECK: And so we had this successor -- we had the succession of not interim, but sort of temporary U.S. attorneys where now that has really, I think, put the president in a pretty pickle. Maybe not with respect to firing Berman, but certainly with respect to replacing him.

SMERCONISH: Stephen Vladeck, that was really well done. Thank you.

VLADECK: Thanks. My pleasure.

SMERCONISH: More social media reaction. Where's this from, Catherine? Facebook? What do we got?

Friday night news dumps work great for a Saturday 9 a.m. -- you know, Joe, there's no such thing anymore as a Friday night news dump because -- the administration may think so but the reality is we have a 24/7 news cycle now.

So, it's not as if people now are all waking up on a Saturday and not plugged in. We are all constantly plugged in. We're plugged in all the time. Too much so. So, you're never going to hide a story, is my point.

Make sure you're going to Smerconish.com this hour and answering the survey question. To me it's a no-brainer.

Should masks be required, not just recommended, required for all large gatherings, be they political rallies or street protests?

Still to come, are you proud to be an American? A new Gallup poll asked that Question. The results showed some dramatic changes. I'll explain.

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[09:46:59]

SMERCONISH: So, we know that Lee Greenwood is proud to be an American. What about you?

According to Gallup, the number of Americans singing America's praises is at an all-time low since they started asking the question nearly two decades ago. And that downward trend, it crosses party lines.

The respondents had choices. They could say, I'm extremely proud, I'm very proud, moderately proud, only a little proud, or not at all proud. Although a majority of adults in the U.S. still say they are extremely proud or very proud, that total 63 percent. Both results are the lowest they've been since Gallup's initial measurement in 2001.

Now, I'm sure that many will conflate all of this with love of country. But they're two different things, right? You can love your country but not be extremely proud of her. You love your Uncle Louie even though he's in the slammer. You're just not quite proud of him lately.

The question does not ask whether you are proud of America. And this may sound persnickety, whether you are proud to be an American implies to me a comparison as in, as opposed to what? Where else would I want to be a citizen? Nowhere I can think of. If I had to live elsewhere, based on government alone, not climate, not history, not economy, beats me? Australia, New Zealand, Germany?

So how proud are you -- am I to be an American? My answer is extremely proud. For all of her deficiencies I can't imagine a better place comparatively speaking. I feel extremely fortunate to have been born and raised here, to be an American citizen with the freedoms that come with that experience and associations. Recognizing significant limitations based on race, on gender, on sexuality although those limitations are barred by law it's still a land of opportunity.

How proud am I of America? That's a different question. Would I say extremely proud? No. Too many things to improve. Too many imperfections. But still, better than anywhere else as far as I know with much to be desired.

So, my answer? I'm extremely proud to be American. Proud of America? A little less so.

Still to come, your best and worst tweets and Facebook comments. And I'll give you the final results of the survey question from Smerconish.com.

Should masks be required, not just recommended, for large gatherings whether they're political or street protests? Go vote.

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[09:54:15]

SMERCONISH: Here we go. Time to see how you responded to the survey question at Smerconish.com this hour.

Should masks be required, not just recommended, for large gatherings, be they political rallies or street protests?

Survey says -- holy smokes 20,000 plus and it's 95 to five. I guess I'm not surprised.

Catherine, what do we have? Short on time here. Make it a goodie.

Social media reaction says this, after everything that has happened in the past 3.5 years, you're still a Trump loyalist? What's wrong with you?

Justin, I had Tim Murtaugh, the spokesman for the Trump campaign on as my guest at the lead of the program today.

[09:55:01]

Essentially saying to him, how can you jeopardize public health just to get a split screen that shows the president with 20,000 people and Joe in an empty room? And your take away from that is that I'm on the Trump bus? Come on. You got to do better than that.

Pick a different week. I'm sure you'll have a better example of a program that you can single me out for your allegation of bias.

Have a wonderful week. I'll see you next week.

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