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Smerconish

Is This What Law And Order Looks Like?; Does Prejudice Against The Less-Educated Impact The Election?; Did Grand Jury Make The Right Call In Breonna Taylor Case?; Interview With Sen. Dick Durbin (D-IL); Debate Strategies For Trump And Biden. Aired 9-10a ET

Aired September 26, 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: Is this what law and order looks like? I'm Michael Smerconish in Philadelphia. You know, the President normally gives good ear even if you don't like it. He has this unique ability to know what plays with his base even when others hear things that sound like a misstep. Think Mexican immigrants are bringing in drugs or I like people who weren't captured, but in this case, I wonder if he's misreading his intended audience.

How can the President prioritize law and order, as he does when discussing civil unrest in American cities, and then turn around and refuse to accept the rule of law with regard to the election outcome? Several times in recent days, the President has refused to commit to the peaceful transfer of power if he loses. On Wednesday, he said this.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, we're going to have to see what happens. You know that I've been complaining very strongly about the ballots.

(END VIDEO CLIP)

SMERCONISH: Thursday morning, he said he agreed with Senator Lindsey Graham that a Supreme Court ruling would be final but added the following.

(BEGIN AUDIO CLIP)

TRUMP: These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. That's emblematic of thousands of locations.

(END AUDIO CLIP)

SMERCONISH: Last night at a rally in Virginia, it was this.

(BEGIN VIDEO CLIP) TRUMP: That's the only way we're going to lose is if there's mischief and we do want a very friendly transition, but we don't want to be cheated and be stupid and say, oh, let's -- we'll go and we'll do a transition and we know that there were thousands and thousands of ballots that made the difference through cheating. We're not going to stand for it.

(END VIDEO CLIP)

SMERCONISH: His Thursday comment was referring to a Department of Justice press release concerning nine military ballots that appeared to be discarded in Luzerne County, Pennsylvania. Seven of those ballots were cast for Trump. An investigation found the ballots had been thrown into the office trash by an independent contractor on their third day of work.

Last week, conservative columnist Peggy Noonan was predicting exactly this sort of thing when she wrote the following, "There will be charges and counter charges, rumors, legal challenges. There will be stories -- 'My cousin saw with her own eyes bags of votes being thrown into the Ohio River.' Most dangerously, there will be conspiracy theories fed by a frenzied internet."

She was prescient, but that doesn't mean that there's a nefarious pattern here. Even the Republican-controlled Senate responded by unanimously giving consent to a resolution from Democratic Senator Joe Manchin in which the Senate said this, that it was reaffirming its commitment to the orderly and peaceful transfer of power called for in the Constitution of the United States and that it intends that there should be no disruptions by the President or any other person in power to overturn the will of the people of the United States.

Nevertheless, the President clearly thinks this talk motivates his base and there's nothing new in him challenging the legitimacy of an election. After all, he did it in 2016 when he said in advance that the election would be stolen and even after he won the election, he claimed he also won the popular vote, but that undocumented immigrants voted and skewed the result.

How does it help him? Is it politically advantageous? does it really energize his base? It certainly infuriates and mobilizes his opponents. Some observers say this is just Trump igniting one of his firestorms and enjoying the fallout. As "The Daily Beast" put it, quote, "Among long-time Trump hands, the idea of him basking in the blank storm of his creation was entirely expected.

Trump is just being Trump and people are playing right into his hands," said Stuart Jolly who served as National Field Director for Trump's 2016 presidential run, "The media always takes the bait." Well, maybe that's true. After all, in the midst of decrying mail balloting, the President himself sent a tweet telling Floridians that they should be voting by mail, but here's the problem.

The President is suggesting that who is president in 2021 will be decided not at the ballot box nor in the courts, but instead, and for the first time, on America's streets. The President is threatening a disorderly method of determining who holds his job.

Maybe violent, maybe threats not violence, maybe not respecting what voters say and what the court's rule and there's nothing law and order about that. I want to know what you think. Go to my website, Smerconish.com, this hour and answer the following question. Does the President's refusal to commit to a peaceful transference of power help or hurt his re-election?

[09:05:00]

Speaking of the President's ability to mobilize voters, I want you to meet Michael Sandel. He's extremely well credentialed academic who decries credentialism as the last acceptable form of prejudice. The Rhodes scholar is a Harvard professor in political philosophy whose lectures have been viewed online by millions.

He argues in a new book that part of the President's political success is due to his ability to tap into resentment against elites and grievances that are economic, moral, cultural and also based on self- esteem. The book is called "Tyranny of Merit: What's Become of the Common Good?" and Professor Sandel joins me now. Let me begin with my commentary. Do you think that the President's refusal to accept the outcome of the election warrants outrage at this moment?

MICHAEL SANDEL, PROFESSOR OF GOVERNMENT, HARVARD UNIVERSITY: I do think it warrants outrage, Michael, and I agree with everything you said in your commentary, but I worry that those of us who consider Trump a menace are going about this in the wrong way. We shouldn't take his bait and become entangled in a fever-pitched outrage at every new outrageous thing he says.

Trump is not a dictator, he only plays one on television and we should not play along as his supporting cast. We should focus instead on his failures to help the working people who elected him in the first place and focus on the Democrats' alternative. That's where I think our focus should be.

SMERCONISH: Your book is a cogent explanation of how he was able to get elected and it begins, I think, in the '90s when you start hearing meritocratic ideals from your Harvard students. What were they saying?

SANDEL: Well, it was almost impossible for students who made their way through the meritocratic gauntlet of stress-strewn, high-pressure achievement of the adolescent years not to believe that their success was their own doing, a result of their own effort and this writ small is what we see in our society writ large. In recent decades, the divide between winners and losers has deepened, but it isn't only economic inequality that's the problem.

It's changing attitudes towards success. It's the tendency of those on top to believe that their success is their own doing, a measure of their merit and that by implication those who have fallen behind must deserve their fate as well. That's the heart of the problem I think.

SMERCONISH: There's a quote from your book that I'll put on the screen and read to the audience that I think sums up well the thesis. You say, "In an unequal society, those who would land on top want to believe that their success is morally justified. In a meritocratic society, this means the winners must believe they have earned their success through their own talent and hard work." Are you saying that talent and hard work are an irrelevancy? I'd like to think that I was able to secure this position through hard work and potentially some talent.

SANDEL: Right. I'm not saying that people don't deserve credit for hard work and developing their talents to serve the common good, but what I am suggesting is that we have fallen into the assumption that the money people make is the measure of their contribution to the common good. This leads to meritocratic hubris of those on top and it leads to humiliation for those who aren't flourishing in this economy.

One of the most potent sources of the populist backlash against elites that we've seen, most dramatically in 2016, is the sense by many working people that elites are looking down on them and I think there is a legitimate complaint here and the book tries to explain why and what we might do about it.

SMERCONISH: Is there anything socialist in what you're advocating?

SANDEL: No. I'm not saying that there has to be an equal equality of income and wealth, but I do think that we need to focus squarely on the dignity of work. The Democratic party has been implicated along with Republicans in dealing with the inequalities of globalization not by confronting those inequalities directly, but instead by telling people if you want to compete and win in the new economy, go to college, then maybe you too will have a chance to rise.

[09:10:00]

Individual upward mobility, first of all, has stalled in this country. More than that, it's not an adequate response to inequality. Nearly two-thirds of Americans don't have a four-year university degree, so we should not create an economy that makes a four-year university degree a necessary condition for dignified work and a decent life. We should focus on how to make things better for people, whatever their credentials. That should be our focus I think, Michael.

SMERCONISH: Final question. Almost unfair to make you sum it all up in 30 seconds or so, but what's it got to do with President Trump's election and potential re-election?

SANDEL: Trump succeeded -- the one-off (ph) for all his lies, the one authentic thing about him is his sense of grievance and resentment. This he feels palpably, and he managed to tap in to the sense of resentment and grievance that decades of deepening inequality and meritocratic hubris had created.

So my hope is that we shift toward the dignity of work, put it right at the center of our politics and ask what would it mean to reconfigure our economy to respect people for the contributions they make to the economy, to the common good, to their families and communities whether or not they be well credentialed.

SMERCONISH: Professor Sandel, thanks so much. I really enjoyed the book. Made me think. I appreciate your time.

SANDEL: Thank you, Michael.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some responses throughout the course of the program. Dave Adams says, "This is so ridiculous. These were gotcha questions from the press. If it is a legit election and he loses, he will concede. You and the press" -- you and the press, I love that. You and the press, painting with the broad stroke -- "Love to play the 'voting' game."

Gotcha questions? Is it a gotcha question -- put that camera on me. Is it a gotcha question to be asked will you accept the outcome of the election and not simply say, well, of course I will? Come on.

Make sure you're voting at Smerconish.com this hour. Does the President -- I mean, this is what really interests me, the politics of this. Is this helping him? Because oftentimes he says things and there's a community outrage, you know, Mexico and the rapists or I respect the ones who don't -- and we scratch our heads and we say, holy smokes, that'll finish him off. How about in this instance? Does the refusal to commit to a peaceful transference of power help or hurt his re-election?

Still to come, the first presidential debate is Tuesday night. What can the candidates do to move the needle when so little else has in the past year and what should they try not to do? I'll talk to one of America's top debate coaches. Todd Graham is here.

This afternoon, President Trump will announce RBG's replacement. Sources tell CNN it will be Judge Amy Coney Barrett of Indiana. With the election so close, what will be the Democratic strategy for the confirmation hearings? Senate whip Dick Durbin of the Judiciary Committee is also here.

And protests erupted after a grand jury did not charge three officers with the death of Breonna Taylor, but was it, in fact, the only possible legal outcome?

(BEGIN VIDEO CLIP)

CHARLES BARKLEY, NBA ANALYST: Just bad the young lady lost her life, but, you know, we do have to take into account that her boyfriend did shoot at the cop and shot a cop.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:15:00]

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SMERCONISH: Say her name, Breonna Taylor. Two Louisville police officers were shot Wednesday night as protesters marched following news that a grand jury did not charge three officers directly with Taylor's death. Police shot Breonna Taylor in her home while executing a search warrant six months ago.

The grand jury indicted detective Brett Hankison on first degree wanton endangerment charges, accusing him of blindly firing shots that penetrated the walls of a neighbor's apartment, but ultimately no one is being held responsible for the death of the 26-year-old.

Was this the right call? It's a complicated case that begs scrutiny. the incident that led to her death began when police were executing a search warrant in a narcotics investigation centered around Taylor's ex-boyfriend. In the early hours of March 13, Taylor was sleeping next to her current boyfriend, Kenneth Walker III. They heard a noise.

Walker told investigators they both got up and walked to the door yelling at the top of their lungs asking who was there. He says they heard no response. Police maintained that they did announce themselves. "The New York Times" questioned a dozen neighbors from the night in question, found only one who heard police before entering.

They forced enter into Taylor's home and Walker said he fired off a shot as soon as the door blew open and before he could see who it was. In response, the three officers at the scene fired more than 30 rounds collectively. Here was Kentucky Attorney General Daniel Cameron on the two officers who were not charged.

(BEGIN VIDEO CLIP)

DANIEL CAMERON, KENTUCKY ATTORNEY GENERAL: As our investigation showed and the grand jury agreed that Mattingly and Cosgrove were justified in the return of deadly fire after having been fired upon by Kenneth Walker.

(END VIDEO CLIP)

SMERCONISH: This is important to note, Walker was also justified in firing his first and only shot as he thought it was a home invader and had every right to defend Breonna Taylor's residence.

[09:20:00]

Bottom line is this. This was a terrible outcome. Breonna Taylor did not deserve to die. She was caught in the crossfire between individuals exercising their respective rights at self-defense, but the decision not to charge any of the officers with her death was probably the right legal call.

"Washington Post" opinion columnist Radley Balko write a piece titled "Correcting the misinformation about Breonna Taylor." His take is similar to my own, that the wanton endangerment charge was probably justified, but he notes that doesn't mean the conversation should end there. Quote, "Taylor's death was not, as Cameron suggested, simply a tragedy for which no one is to blame. The police work in this case was sloppy, the warrant service was reckless. Taylor is dead because of a cascade of errors, bad judgment and dereliction of duty and it is important that the record on this be clear."

Radley Balko joins me now. By the way, he's the author of a terrific book, "Rise of the Warrior Cop." Radley, what is the biggest misperception online, Twitter verse, social media?

RADLEY BALKO, OPINION COLUMNIST, THE WASHINGTON POST: Well, I think Cameron probably fed the biggest misperception and that is that, you know, when he said that a witness heard the police announce themselves and therefore he just sort of declared that they did knock and announce themselves and therefore, Taylor and Walker should have known that the police were at the door.

He didn't go quite that far, but by saying it so definitively that they knocked and announced, that was the implication and, you know, hearing that -- I remember sitting on my couch and watching that press conference. It sounded like he was transferring sort of the blame for all of this on to Walker and this is the man who just lost the woman he loved and it just seemed sort of unnecessarily cruel to this guy who's going through a lot right now.

That raid should never have happened. Breonna Taylor was only a tangential part of this investigation and one thing I pointed out in the column is that, you know, at some point, they apparently decided that she was what they called a soft target or a soft threat and so they originally got a no-knock warrant which we can -- we can get into if you want which was illegal actually, but then they decide that she's a soft target.

Well, if she -- if they hadn't decided that and they had gone ahead with the no-knock, it would have been exercised -- the warrant would have been served by a very highly trained SWAT team, there would have been an ambulance nearby, but because they decided she was only a soft target, it was -- the warrant was served by these police officers in street clothes who kicked down the door, who aren't nearly as well trained in these kinds of tactics and in fact, there was an ambulance there that they told to leave the scene about an hour before the raid.

So she basically got all of the sort of worst aspects of this, the most -- the most violent sort of tactics of what they call dynamic entry and none of the benefits which is having it served by a well- trained SWAT team and having medical staff nearby.

SMERCONISH: Radley, I'm sympathetic to Breonna Taylor and to Breonna Taylor's family. I'm also sympathetic to the police who were put in that position, middle of the night, 12:15 A.M., seemingly ill-equipped and with this contradictory information as to whether it's no-knock or they should announce themselves. I mean, they, too, were done wrong. Do you agree with that?

BALKO: Yes. I mean, I think that the problem with this was during the investigation, I think the problems was with the affidavit for the search warrant, the problem was with the judge who signed off on it. You know, I'm not ready to let the raid team off completely because I still think that this was done in kind of a reckless manner.

You know, to say that she's a soft target and to say that they knocked and announced, the whole purpose of the knock and announce requirement is to give the people inside warning, right? It's to give them -- give them notice so that they can come to the door and let the cops in peacefully and avoid, you know, violence to their person and destruction of their property.

But if you're still doing it at 12:30 in the morning, if you're pounding on the door -- and, you know, maybe they did announce themselves, but, you know, if the people inside the apartment didn't hear the announcement, then that's no different than a no-knock raid.

I mean, that is -- the entire purpose of the announcement is to let somebody like Walker, who, you know, had nothing to hide. It was a -- had a concealed carry permit, you know, was not -- this is not a guy who had any rational reason to decide -- to knowingly say, you know, I'm going to take on this raiding team of police officers with my handgun. You know, by all accounts, he did not know who they were. That's why he called 911, by the way. So ...

SMERCONISH: Understood. I have a ...

BALKO: Go ahead.

SMERCONISH: I have an important and final question and it's this. I paid attention to the camera and presser as well. Here's what I took away and you correct my misunderstanding if that's the case. Six shots hit Breonna Taylor. Law enforcement, there was a contradiction there because Kentucky state police were not able to identify, but the FBI was able to identify one of the bullets in her, the fatal bullet I believe.

[09:25:09]

How can they say that the police officer who broke formation and was charged with his wanton behavior hadn't fired into her if they don't know the origin of those other five shots? I hope I asked that clearly.

BALKO: Yes. I understand your question. You know, they can't and ballistics are -- the ability to distinguish which gun a bullet came from when it's the same type of gun and the same type of bullet I think is often overstated in our criminal justice system and there's been, you know, tests and studies showing that, but if you can't definitively trace it, then you can't charge him.

I guess my point here is like a lot of investigations of potential criminal police conduct, you know, the police here were given every bit of the benefit of the doubt, they were shown great deference and sort of understanding of the circumstances and that's fine, they should be, but, you know, anybody else in the criminal justice system doesn't get that same kind of deference and understanding. If everybody got treated the same way police get treated during these investigations, you know, I wouldn't have a whole lot to write about.

SMERCONISH: Understood. Radley Balko, thank you. Appreciate your time.

BALKO: My pleasure. Thank you.

SMERCONISH: Up ahead, this afternoon in the Rose Garden, President Trump will officially name his pick to replace RBG. Sources say it will be Judge Amy Coney Barrett, a federal appellate judge and Notre Dame law professor. So how will the confirmation battle play out? I'll ask fellow judiciary member Senator Dick Durbin.

And the first presidential debate is this Tuesday. What do the President and Joe Biden need to achieve and how should they go about it? The Speaker of the House says Biden shouldn't even participate.

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI (D-CA): Not that I don't think he'll be excellent, I just think that the President has no fidelity to fact or truth and actually in his comments the last few days, no fidelity to the Constitution of the United States.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[09:31:24]

SMERCONISH: The death of Supreme Court Justice Ruth Bader Ginsburg last week left the nation in mourning over the loss of a legal and feminist icon. And has also shaken up the 2020 election President Trump and Senate Republicans quickly made clear that they won't waste time in filling her seat.

Later this afternoon President Trump is expected to nominate Judge Amy Coney Barrett. It looks like Majority Leader Mitch McConnell will have the Senate votes needed to confirm Trump's pick. So what will be the Democratic response?

Joining me now is Senate Democratic Whip and member of the Senate Judiciary Committee Illinois Senator Dick Durbin. Senator, thanks so much for being here. Is Amy Coney Barrett qualified for the Supreme Court?

SEN. DICK DURBIN (D-IL): Good question. And usually that's what the Senate Judiciary Committee sits down to try to decide and we should. It is a lifetime appointment to the highest court in the land.

We got a problem this time. It appears that Senator Mitch McConnell, the Republican leader of the Senate, and the president are determined to get this done in record time and to break the rules in doing it. Remember four years ago Antonin Scalia's vacancy Mitch McConnell piously pronounced that we couldn't fill that vacancy with President Obama.

He was a lame duck. He only had a year left in his term. So we had to wait until the next election, for the next president to decide. Well, McConnell has tossed that. And now he says, let this president, this Republican president decide when he's ready.

Secondly we usually have a hearing after we've gathered evidence in terms of the writings, the opinions, the background. We threw that out with Kavanaugh. The decision was made by the Trump administration. Kavanaugh will be considered and large gaps remained in the information given to us. We're going to go through about the same thing here. Considering the fact that this Supreme Court nominee may serve on the court for 30 years, it is nothing short of outrageous that they want to approve her in fewer than 30 days.

SMERCONISH: I get that. And respectfully I understand the hypocrisy argument. I happen to share it but nevertheless is she qualified?

DURBIN: I don't really answer to that. I mean, here's the basic fundamental question. We know that when she is put on the court she will be able to set in on the oral argument on November 10th about the future of the Affordable Care Act. This is an act, of course, under President Obama, Obamacare, which gives health insurance to 20 million Americans and protects all of us in terms of health insurance policies. So we can't be discriminated against for pre-existing conditions, something Americans dearly treasure.

We have in Amy Coney Barrett, a pronouncement that earlier decisions by the Supreme Court saving the Affordable Care Act were wrong. There is one issue. There's a second issue. This president has raised a constitutional issue about whether he is going to abide by the decision the American people in this election. I can't think of anything more fundamental and constitutional.

Then he went further and said and that's why I need to fill the Supreme Court before the election. That's what he said. And when you look at those statements they are nothing short of amazing, startling for a president to say that. I want to know what Amy Coney Barrett has to say about that. Is she ready to be on the court? I need some answers.

SMERCONISH: OK. So what will then be -- I understand that you have these process concerns given the Garland situation. What will be your approach? For example, we're used to courtesy calls being made upon senators soon after the announcement is made. The hearings. Will the Democratic Party, the members of the Senate Judiciary Committee participate in those hearings?

DURBIN: I can only speak for myself. In this age of COVID-19 we have to be careful. I've met with every single nominee including -- one who (INAUDIBLE) for the Supreme Court because I think that is not only respectful but it's important.

[09:35:10]

We have to do it differently now. And I plan on establishing some sort of contact, safe contact for both the nominee, myself and my staff and in a courtesy manner. I think that's only right.

And secondly, this senator is going to be at the hearing. I have questions I want answered by a person who wants to serve in the Supreme Court and follow Ruth Bader Ginsberg.

SMERCONISH: Should people of praise even be referenced in Senate Judiciary Committee hearings pertaining to this nominee?

DURBIN: I'm sorry people of praise?

SMERCONISH: The organization to which supposedly she belongs as part of her Catholic faith. I'm trying understand exactly what the boundaries are of decorum and propriety related to religion.

DURBIN: That's an important question and a challenging one. We've already faced with her. The constitution is very clear on religion. Three things. Just three. And they've guided us for more than two centuries.

First you can believe what you want to believe or you don't have to believe anything. Second there's no official state religion. And third, there's no litmus test. You can't use the religion of a person against them when they are seeking appointment through the ordinary legal process.

Now you have Amy Coney Barrett. And she is going to push against this by writings that she published years and years ago which questioned whether people of a certain religious faith could do things on the bench that might violate their conscience. It really created a muddle here when it comes to what is the appropriate line of questioning. I'll be extremely careful. I believe this is very sensitive issue.

SMERCONISH: But she did -- but she did -- but, senator, I watched your questioning of her, I guess it was three years ago and I thought that she gave a very direct response which is to say that she embraces her faith but it plays no role in her judicial opinions, temperament, et cetera, et cetera. Doesn't that end that line of inquiry?

DURBIN: Well, of course. That is what you want to hear. That whatever your religious belief whether you have one or not it's not going to influence your opinion.

What you asked me is it still a concern? Of course. It should be a matter of record for her to say it again and I hope she leads with it.

SMERCONISH: Senator Durbin, thanks so much for your time. We appreciate it.

DURBIN: Thanks, Michael.

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

Why is Joe Biden's Catholic faith a good thing but his nominee for SCOTUS having a Catholic faith makes her a dangerous theocratic monster? It's ridiculous.

Hey, nobody here said it makes her a dangerous theocratic monster. What I was going over with Senator Durbin is the fact that in her confirmation hearing for her appellate position this was a line of inquiry.

Hey, Catherine, can I roll the Dianne Feinstein tape right here, right now or does that screw you up? Can we do that? I can? Good. Play this tape. I want everybody to watch this.

I think whatever a religion s-it has its own dogma. The law is totally different. The dogma lives loudly within you.

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN (D-CA): I think whatever a religion is it has its own dogma. The law is totally different. The dogma lives loudly within you

JUDGE AMY CONEY BARRETT, FEDERAL APPELLATE JUDGE AND NOTRE DAME LAW PROFESSOR: It's never appropriate for a judge to impose that judge's personal convictions whether they derive from faith or anywhere else on the law.

(END VIDEO CLIP)

SMERCONISH: So I wanted you to see that because that's a much talked about moment from, I think, it was three years ago. Don't hold me to that. Senator Feinstein criticized in many quarters for raising the issue because it smacks to some of a religious test.

My point to Senator Durbin was we've gone over this ground with her and she has said, hey, my faith might guide me when I'm not wearing a robe but it doesn't play a role when I am. Will that end it? Probably not.

Make sure that you are answering the survey question of the day today at Smerconish.com.

Does the president's refusal -- I'm really interested in the politics of this. You know what he's been saying in the last couple of days about his refusal to commit to a peaceful transference of power. Is that helping or hurting him in the election?

Still to come there are so many classic moments we remember from presidential debates, some that hurt the candidates. At Tuesday's debate what do President Trump and Vice President Biden need to achieve and what must they avoid? I'll ask one of America's top debate coaches.

(COMMERCIAL BREAK)

[09:43:34]

SMERCONISH: The first presidential debate finally upon us Tuesday night in Cleveland. So what do the candidates need to achieve? We and they already know the topics as announced by moderator Chris Wallace of "Fox News." They will be the Trump and Biden records, the Supreme Court, COVID-19, the economy, race and violence in our cities and the integrity of the election.

But what debate strategy would be most advantageous for President Trump and Vice President Biden for both the live viewing audience and the ones who may just see the clips later? Joining me now is Todd Graham, director of debate at Southern Illinois University in Carbondale. His debate teams have won five national championships. He has been named National Debate Coach of the Year three times. Thanks so much for being here, Todd.

I think that Joe Biden has an advantage going into this insofar as the president has tried to portray him as frail and, therefore, the bar has been lowered and it should be easy relatively speaking for Joe Biden to step over it. What am I missing?

TODD GRAHAM, DIRECTOR OF DEBATE, SOUTHERN ILLINOIS UNIVERSITY IN CARBONDALE: You're not missing anything. They've already made this mistake. They were previously saying that Biden couldn't put two sentences together and then he just crushed it with his speech at the Democratic National Convention.

So then the narrative had to change from the Trump campaign that Biden can only use a teleprompter. But if you go back a month that was not the narrative before then. So they've already made this mistake once. And so now they're going with he can only use a teleprompter, which means there's no teleprompter in the debates

[09:45:05]

If he does well in the debates he again exceeds expectations. And as you well know exceeding expectations might be good enough for people to think you win the debate.

The example of that is my teams in debate have always been expected to win. We have very good debate teams. So when other teams come close to us we would lose a lot of close decisions because judges over thought that debate and where like, it's really close, we weren't expecting that. And they would give the other team more credit.

SMERCONISH: Donald Trump stepped on to that stage in 2016 against a slew of individuals who had been debating their entire life. Ted Cruz was a collegiate debate champion at Princeton and yet Trump bested the field. What is it that he's able to do in debates?

GRAHAM: Trump does a couple of things that are unorthodox. One of the things is that he will interrupt you a little bit. Now interrupting works for and against you. Obviously, it's rude. But what it does do in the form of debate that I coach now you're allowed to stand up and interrupt your opponent if they call on you.

The reason you want to do that is because it throws them off their train of thought. So he was able to throw Ted Cruz off his train of thought. He wasn't ready for that. Plus, Ted Cruz doesn't know how to deal with insults or just ad hominem attacks. And so it threw him a bit back.

It's what I call a street debater versus a technical debater. And Donald Trump is absolutely a street debater. If you don't practice against that you won't do well against that.

SMERCONISH: Dr. Graham, I watched all of the primary debates, some of them in person. And I had the continued critique of Joe Biden. He tries to accomplish too much. He's trying to say too many things, cite too many statistics, and I thought what he really needs to do is catch his breath, speak thematically and say one thing.

But you're the expert not me. What's your critique of Biden? GRAHAM: Well, I think that's exactly right. And it's probably because I think I've told you this before. So don't try to take credit for my arguments now.

(LAUGHTER)

GRAHAM: But I think the problem here is -- I think the problem here is that there are that there are always subsets of every topic. So when Kamala Harris bested Joe Biden when she was talking about bussing, what Joe Biden needed to do was think OK don't get into the minutia, bussing is a subset of civil rights. I can just talk generally about civil rights rather than the minutia.

There was one point in the debate that Joe Biden was trying to say something like, well 4.2 percent, and as I told you any time you talk about a 0.2 percent you're talking too much.

SMERCONISH: You're losing.

GRAHAM: Remember -- yes. This debate though is against Donald Trump. He's not going be heavy in detail. So the things that Joe Biden might have thought he needed against the other Democrats he absolutely will look even worse if he goes into the minutia, into the weeds of the debate against Donald Trump. Think big picture that's how he should debating.

SMERCONISH: Dr. Todd Graham, thank you so much. I appreciate your expertise.

GRAHAM: Absolutely.

SMERCONISH: From the world of Facebook, I think. What do we have?

Trump has debate practice every time he faces the media. Biden will only win if he wears an invisible earpiece.

You know it's kind of interesting. You'll wonder what kind of preparation behind closed doors Trump is really doing. I mean he made a big deal over Biden putting a lid on it yesterday and presumably or maybe it was the day before spending his day preparing for the debate.

You make a good point. Your first point, at least, which is to say he's constantly out there and interacting with the media. But at some point he also needs to come up with closing statement and thematic reference that doesn't come from just being bombarded by the media or mixing it up with the press corps.

Be sure to catch CNN's pre-game debate discussion which will include yours truly at 7:00 Eastern this Tuesday. Still to come, your best and worst tweets and Facebook comments and we'll give you the final results of the survey question at Smerconish.com. Go vote on this.

Does the president's refusal to commit to a peaceful transference of power is that helping or hurting his re-election?

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SMERCONISH: Time to see how you responded to the survey question this week at Smerconish.com.

Does the president's refusal to commit to a peaceful transference of power help or hurt his re-election?

What are the results? Eighty-eight percent say hurt, 12 percent say help. Lot of voting, nearly 20,000 people. What I was really trying to get at, and I guess you know this, is I wanted to know how does it play with the base? Because so many times in the past there have been statements by him, conduct by him, that the dominant media says, oh my God, what a catastrophe for him politically and it ends up being to his benefit. Is this one of these cases? Most of you are saying no.

What do we have from social media?

Smerconish, you are a Democrat hack. He did not say he would not transfer power and have you asked the left if they will accept a real Donald Trump victory?

Listen to the words that I did play. I mean, I played like four or five sound clips from him. All he would need to do is to say -- well, of course I'm going to accept the outcome of a lawful election. Why would you even ask me that question? One more if I have time.

Love him or hate him, Trump is the masters of the shiny object. His opposition seemingly takes the bait, hook, line and sinker, every time.

Sean, to your point, guess what we're not talking about when we're talking about whether he's going to accept the outcome of the election?

[09:55:07]

COVID and 200,000 American deaths. So that was part of what Professor Sandel was arguing which is you got to resist taking the shiny object. But how if you're in the media do you not discuss a commander-in-chief who throws doubt on whether he'll accept the outcome of the election?

Tuesday night is the first debate. I'll be part of CNN's coverage at 7:00 p.m. that night. Hope to see you then.

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