tv Smerconish CNN February 20, 2016 6:00am-7:01am PST
i'm michael smerconish live from washington d.c. the outcome of the south carolina republican primary and caucus will be a presidential reset. if hillary clinton loses to bernie sanders in nevada, might it forshadow another collapse like in 2008? and he certainly is not expected to win, but how badly jeb bush loses could determine whether this is the end of the line in his campaign just another indication of what an unpredictable election this has already been. post of all, the republican who
is projected to win today keeps confounding everything we thought we knew about politics after baiting the pope himself into a holy war. donald trump now called for a boycott of one of the most popular american corporations, apple. that's despite the fact as of yesterday, trump himself was still tweeting with his iphone. today is also the day of antonin scalia's funeral. i'll talk to a former clerk of scalia's that went on to argue some 80 cases before the supreme court. cnn will begin coverage at 10:00 a.m. the tussle in the fbi's battle against apple. i have three experts to help me. mike rogers, claire of the house intelligence committee and the defense attorney and jeffrey ed-
toobin, cnn's season your legal analyst and former federal prosecutor. mike, let me begin with you. donald trump wants supporters to boycott apple, number five on the fortune 500 list because apple said no to a justice department demand to unlock a phone used by terrorists who killed 14 people in san bernardino last december. apple says that would endanger the privacy of every iphone user. so who is right? >> well, i'm not sure i would agree with the boycott of apple just yet. apple is long it doesn't provide new secretive backdoor to allow someone to get into millions of iphones, you have to have physical access to the iphone and i'll throw another one under the bus, the department of justice questioning motives of apple using its legal rights to actually push back on the warrant, i think was wrong, as well. that should be better left to the politicians, maybe somebody like trump. here is the problem.
this is a time-sensitive case. an interesting case for apple to say this is where we're going to make our line in the sand on the ability for us to provide an unencrypted access to an individual iphone. the iphone was disabled, at least default functions about six weeks before the event which tells you as an investigator they likely had help. somebody knew what they were doing to make it more difficult to track these individuals as they were doing the preparation work for their attack. are there other people in the country? did they have other cells getting ready to go operational? the more time this goes the more they need to get their act together. this is an odd case for apple to be public and the department of jus tils thtice justice. >> jeffrey toobin, as i understand the facts, it's not as if the data is sitting in a safe and apple won't hand over the key. it's that the justice department
is saying to apple help us crack your own safe, and i think that sets a dangerous present. >> michael, you know, the more i get into this case, the tougher i find it. i initially had the same reaction that mike rogers did, which was hey, look, this is obviously a pressing government need and apple has the keys to the information, turn it over. ultimately, you know, i think i still come out that way, but the idea that it's not just information that exists, it's information that has to be gotten with apple's assistance it makes it an unusual situation but ultimately, i think when you look at the government's pressing need, the fact that the information is unobtainable unless apple cooperates, i think the government's interest on a case by case basis does trump apple's need to protect it's customer's privacy. >> professor, you have written
and spokenfe feceffectively aboe ticking time bomb but where san bernardino occurred and mid february, is this really the ticking time bomb case? >> no, it's not. it's a case where both sides are exaggerating interest. this is not the most pressing case for the justice department. you see a compelling need to find out many there are more people involved and for apple, this isn't the end of privacy. i do think that apple could probably respond to the justice department by simply opening up this cell phone without creatig a backdoor, without publicizing what it's doing. it could have probably worked it out without creating this kind of conflict, and i think apple picked the wrong case to focus on. you know, the big issue under the fourth amendment is not this case, leading involved because rich people and lots of people
own iphones. the big problem is how easy it is to get search warrants in the general alty of cases. the government can get into your records, financial records, lock boxes in the bank easily. search warrants are given out a lot today the i would like to see the level of cause, probable cause required for such intrusion raised in every case. my judge who i clerked for many years ago once said the right of a hopeless person to the privacy of what is in his paper bag is just as important as the right of wealthy people to privacy in the banking records and i wish the courts would focus more attention on the average run of the mill case where it's so easy. >> i want to show you the l.a. times editorial on this subject. they said the order if upheld would dangerously extend on the private industry establishing a president to create features
that serve the government's interest, not the public's and hard to see where that new authority might lead. are you troubled by the argument made by the l.a. times this would be a dramatic increase of government power over private enterprise? >> yeah, i mean, i fundamentally disagree with it. you have to find a balance. there is an alignmnt here between what apple is seeking to do protect in general the privacy of users of iphones and get that. this is very different. they are seeking access to an individual device, it is named in the warrant very specifically this particular device. and what they are saying is listen, just because you have an encrypted database doesn't mean you contribute and allow to contribute criminality to happen using your device. and so there is a happy medium here and again, i think a little bit of everybody has -- i agree with alan, completely over stated and over blown. again, the department of justice shouldn't be out questioning the
motives of a private company that has the right to push back on a warrant, even though apple should have sat down and said listen, we'll give you access to the device and maybe go back to congress if we have another concern to have that fight there. to do it over this is wrong. it also presents inconsistency here michael. in china, it's very interesting. they have an extra set of keys to get data they stored on personal users in china and protected because we have a set of keys somewhere else. it's inconsistent at best and my argument is, you're opening yourselves up for a bunch of trouble walking down this road on this particular case when you can use the chinese case and other cases even prior to '14, some 70 different times they opened up an iphone criminal investigation. seems like i think there is more emotion in this than there is real substance. this could have been worked out, could have been worked out and probably shouldn't have been on
the front page. >> mike rogers references china and what if it were another nation nation? if some country went to apple and said we need you to help unlock someone's phone? >> they have to compile with the laws of the countries in which they operate. as we all know, china is an authority country with none of the traditions of civil liber liberties and it's a real risk and if you take your iphone to china, and i've been to china and you know when you're on the internet in china, you know the government is following you. there is not one set of rules around the world. we have important and valuable protections of civil liberties but i think everybody recognizes that other countries do not and these companies have to play by the rules or not go into these countries at all. there have been some high tech companies that didn't go into
china for just this reason because they said look, we're not going to play by the rules. >> what would justice scalia say? >> he might very well be on apple eastsi's side and ask the framer's generation, if they had known about this issue thought about it? the framers talking about eavesdropping, people standing by the eves of the house and listening in and when the government tried to put something under a car that could follow it, he asked that same question and came to the more liberal approach. in fact, i think many privacy advocates have lost a friend in justice scalia. apple is threatening to create an extradition. i think that would be a terrible, terrible mistake because you could have a ticking
time bomb case and the phone with the location of a nuclear bomb in a city and apple would throw up its hands and say sorry, we invented a machine keep can't break into. i don't think that kind of machine is consistent with democratic principles. the fourth amendment is not a prohibition on searches. it requires reasonableness and probable cause. we ought to be focussing on those issues and raising the level the government needs before it can intruth on all cases. >> we are a court of four and only 30 seconds left. privacy versus national security, in this one i'm going with privacy. mike rogers, you're on the side of national security. >> i am national security but you can have both. >> alan, you're on the side of? >> i'm always on the side of privacy but i understand that reasonable exceptions have to be made. >> jeffrey, you're the final vote. >> national security in this one. >> okay. mike rogers, alan, jeffrey toobin, thank you very much, gentlemen. i bet you've got an opinion,
tweet me at smerconish and i'll read the best later. 3 up next, what happens in nevada will not stay in nevada. if hillary clinton loses to bernie sanders, will she also lose any sense of much-needed momentum and is it time to trim the republican herd? today's results in south carolina could prove the waterloo for several candidates. ♪ we stop arthritis pain, so you don't have to stop. because you believe in go. onward. today's the day. carpe diem. tylenol® 8hr arthritis pain has two layers of pain relief. the first is fast. the second lasts all day. we give you your day back. what you do with it is up to you.
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wall, though, has run head long into bernie wearing an asbestos suit. she does seem to have a grip. the nevada fire wall is a mirage. >> you say that because of her perceived strength of people of color and just today in the "chicago tribune" surfaces this photo of a young bernie sanders wearing pants and glasses looks like al franken being arrested in 1963 in the myidst of the civil rights movement. >> you're right, michael. if that begins to crack, i'd say she's in real trouble. i'm not worried about vegas but
if the african american support fades, she needs to go into desperation mode at that point. >> roger, let me show you a usa today survey that shows the republican field, how they win against hillary clinton. notice john kasich at the top of the heap presumably because of his appeal to independence but all beating her. kasich, rubio, trump, cruz beating hillary clinton if i switch slides and show you bernie sanders, the republican field against sanders, you'll see similar strength except with bernie sanders this far, t - criticism of the gop brand being harmed by your former employer, trump and yet the republican field looks strong. >> well, hillary clinton has got to have a certain sense of deja vu. she's losing to a 70-year-old
socialist. she was the odds on favorite when she began and against barack obama eight years ago. she's clearly in deep trouble here and the republicans, all of them, have an excellent chance despite the fact some are more polarizing than others. >> everybody is voting. we want them to go exercise the franchise. let me word it this way, ellis. how strong a showing does jeb bush need to continue on? >> a whole lot better than he's showing up in the polls. i got to tell you of all of them, he's on life support. if she doesn't do better than all three of us expect, he's going to be out of the race quickly. >> roger, the bush effect in this race, i don't think has much to do about jeb. you might disagree with me. it has to do potentially with fatigue about the whole franchise because he's done nothing to warrant the poor showing that comes up until this moment. >> look, donald trump's entire
campaign is a -- >> how so? >> their financial policies destroyed the economy and immigration policies made the country unsafe and foreign policies cost millions in treasure and lives with very little to show for it. excellent piece by pat buchanan yesterday. so i think that jeb bush is toast. >> the worst thing that could happen to donald trump, i would argue is that the republican field begin to narrow because, you know, he holds and i'm not taking anything away from him or maybe i am. he's somewhere in the 30 to 35% range but i think he has a se ceiling and the more it thins, the larger will become an opponent that gets him in the ring alone. >> i think that's true, however, there is no end case that john kasich or ted cruz or marco rubio who i believe will out pace cruz in south carolina by coming in second is going anywhere. trump will continue to benefit
from slip opposition as he has thus far. >> ellis, smart or foolish politics for the donald to be taking on apple? >> probably on the political side of that. most americans i think sympathize with that view and think apple ought to help investigators. >> i don't know. i had a poll on my website unscientific but nearly 1700 people cast ballots. it was a 53-47 divide as to whether this should be determined by privacy. he's only going after a small percentage of the vote. >> right -- i'm sorry -- >> michael, your readers and listen are smarter than the average republican primary voter. don't forget that. >> roger, you want to respond? >> trump is standing up for national security and running in a republican primary and i would
be perfectly comfortable. >> i don't want our viewers to be fooled with the yellow vest, you're known as a practitioner of dirty tricks. this is a photo shop image that seemingly shows a smiling barack obama greeting a smiling marco rubio. we know that's fiction. a good dirty trick or bad dirty trick. >> this looks like the handy work of tricky ted to me. cropped photographs are a staple in american politics since abraham lincoln. marco rubio, the millions of dollars spent by jeb bush for whatever reason attacking rubio appear to have had no effect at all. in fact, he seems to have rebounded from his poor debate performance. he's about to drub jeb bush in south carolina. >> ellis, does this begin to catch up with ted cruz, this meaning what took place relative to people being told hey, ben
carson is going to get out of the race when that wasn't the situation, now this photo shopped photograph, do voters begin to hold the cruise campaign, ted cruz in particular accountable for this sort of thing? >> no, there is a stinker on him. i would point out cropped photos, this is nothing by the standards of roger stone tricks over the years. >> he wears that on his sleeve -- >> i have no idea what you're talking about. [ laughter ] >> roger, did the republicans over play their hand, those who said barack obama should appoint no one before he leaves office to the supreme court of the united states. >> not while there is a primary going on this is about control of the judiciary and about major hot button issues in the republican primary such as guns and so on. so politically, that is the only position to have. i think it is perfectly safe, and the key thing, of course, is for each of these candidates to keep repeating they would put a
constitutionalest, a real conservative on the court as donald trump would. >> but there is the irony or maybe the fraud. how can you thump your chest and refer to yourself as a constitutionalest while disregarding the obligation to name a successor. >> he's entitled to name a successor but the u.s. senate has an obligation to refuse to act on that if they wish. we have a balance of power. >> ellis, ellis, let me hit you with something quickly. ellis, ready? justice biden, does that roll off the tongue? >> you know what, i'd love anybody in the seat. i haven't heard a name i'd object to. he is a little old. i'd rather have a 29-year-old if we could work that out. >> truth is stranger than fiction. pat by cannon is upcoming. thank you. appreciate you both being here. we'll get to that next and remember, what do you think?
keep tweeting me at smerconish and i'll get to the best later. up next, the all important face-off for the remaining half dozen gop contenders in south carolina. we'll go live to the polls and donald trump keeps attacking bigger and bigger targets, including his holliness pope francis and yet it never seems to hurt his campaign. how come? >> for religious leader to question a person's faith is disgraceful. no leader -- especially a religious leader should have the right to question another man's religion or faith.
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carolina. brian todd is live in mt. pleasant, south carolina. brian, i hear there are a lot of last-minute decisions being made by voters in the state. >> reporter: michael, that is really the story this morning. last-minute decisions. we talked to a lot of voters as they leave the polls. when did you make up your mind? weeks ago? months ago? some made up their mind last night or this morning. incredibly, one woman told us it came down to two people for her and what she wanted to do, she did this purposefully, she went into a digital stand, purposely pressed the kasich and rubio buttons saimultaneously to see which one pops up. gives you a sense of the energy here and last-minute decisions how people are torn between candidates and making up their mind at the last minute. here at the mt. pleasant national guard armory, people come and check in and go to digital polling stations and an
energetic morning and lines were out the door when it hopened. we'll take you out the door. in south carolina what is interesting is you don't register by party. you come in here and they will ask you the poll managers are trained to ask you this is the republican primary, this is the primary you want to vote in? when you state you want to vote republican, you present a photo id and off to the races as far as just voting here. doesn't take people more than about 25, 30 seconds to vote. and what's interesting, also, is they keep atally and keep you in the records. you cannot vote in both primaries. if you vote in the republican primary, you cannot vote net democratic primary. we had a line out the door this morning. there may be lines of cars, steady stream. if there is a line out the door when polls close at 7:00 p.m.,
everyone gets to vote. if you're in line, you get to vote and so we're going to see if that generates into a lot of energy at the polls. so far we had it but a long day ahead. >> brian, let me just point out that with regard to the history in south carolina, they got a pretty good track record of picking who the republican nominee will be. >> reporter: yes, they do. once another very interesting point about the dynamics and the demographics here in south carolina, heavy evangelical vote. trump and cruise have been battling it for the vote with personal attacks on one another but that is telling, too. we talked to a lot of evangelical voters that come in here today how they felt about a lot of this stuff. so very interesting to see about the evangelical turnout and pride themselves on picking a winner. will they do it today? maybe under a little bit of pressure after iowa new hampshire. we'll see how it turns out. >> thank you, brian, appreciate your report.
i think newt beginnigingrich wan one to carry the primary. i tweeted in any other year mocking a pow hero, mimicking a disabled person, picking on the pope leads to political ruin. nothing seems to slow him down and here to explain that to us is veteran observer who recently declared donald trump's rise as a rejection of a quarter century of pub republican. patrick buchanan, there there nothing he can say or do that will slow down his stride? >> i don't think the apple dispute is a problem for him. most folks are on the security side of that. i've lost to the south carolina primary twice but i think south carolina, what is going on is a
tremendous rebellion inside the prel prerevolutionary situation, which i wrote this week, it's a foreign policy intervention, all these wars, democracy crusades, amnesty for illegal aliens and free trade, if you will, that led to extraordinary trade deficits and a real rejection in both parties. >> patrick, the reaction initially from the charting class is how can donald trump take on pope francis on reflection i'm wondering could that actually help him among evangelical voters in south carolina? >> well, let me speak as a devote roman catholic. the pope is the spiritual and moral leader of my church, but i don't believe when i heard that i said why is the holy father saying that it's unchristian to build a security fence or wall
to protect your country from a certain mass invasion from across the border and from the third world? why is he interfering in the politics of my country? and so i think there is a natural tendency to say look, we decide these things and we don't believe we're inmoral. i agree with donald trump but don't agree with the word disgraceful. he should have been more respectful but he has a right to defend his position and i don't believe it's inmoral. >> what i'm wondering is that evangelical christians in south carolina won't feel a particular allegiance to pope francis. what about down the road with a c constituency, the launch pail types, many of whom are
catholic? >> i think you saw today or yesterday donald trump basically indicating his respect for the pope and his regard for him and in effect, walking back the verbiage he used but keeping stand on the boarder position and i think that's the proper position to be in. as i said, i would have disagreed strongly with the use of the word disgraceful when you talk about the word holy father but i think donald trump recognized that and moved on that and done this on a number of cases. mig he takes positions, no muslims will come into the united states and then the next day and the day after he refines it but got his headline. he's spoken basically to the reaction of a lot of americans that say look, if we can't vet somebody coming in here killing us, we got to stop it and check it out until we can vet them. i think he's -- you can't fault the results. >> i know you're a rolling stones subscriber, i don't know if you read --
[ laughter ] >> why are you laughing? >> i wrote something for them once. >> i'd love to see it. let me show you what jessie wrote. quoted scripture and made observations. blessed are those who are persecuted said jesus and trump wants to deport 11 million immigrants gleefully breaking up famili families blessed are the peacemakers, trump wants to ban all muslims from entering the united states. calling him weak and constantly interrupting him like the world's most obnoxious big brother. does the writer at "rolling stone" not have a point? >> of course, i would not compare donald trump to jesus, but i will note jesus used a whip to drive out of the temple when engage in money changing in the temple. he was strong and got angry at times but i'm not -- wouldn't remotely compare donald trump with jesus but i will say look,
the bush people play hardball. they are very tough and there is a lot of attack ads, trump says $20 million dumped on him. i can understand his anger but the key thing we're seeing here, i think in south carolina michael is we are maybe seeing the end of the bush dynasty and the end of bush republican because if you ad part of the cruz vote to the trump vote, this is a repudiation of everything the beltway republican party stood for. you see panic at the national review. panic among the conservatives panic at the weekly standard because there is a prerevolutionary standard. it's not as far advanced in the democratic party but you got a 74-year-old socialist running dead even with hillary clinton, something is going on in the country. >> patrick, final comment you were there when ronald reagan picked antonin scalia. quickly tell that story. >> i was -- there was a battle
between boric or scalia and i was on the scalia side and called into the chief of staff's office and sat around the table and regan said the president decided on which, who he's going to appoint to the supreme court. it is judge antonin scalia and i went yes! [ laughter ] >> patrick thank you -- >> he was a wonderful choice. good man, great justice. >> appreciate your being here. your turn, as always. tweet me at smerconish. i'll get to some of the best later in the program. still to come, the funeral of supreme court justice antonin scalia is later this morning. cnn will cover the event live starting at 10:00 a.m. eastern but before that, we'll go to the basilica and talk to paul clement who clerked for him and argued more cases than any lawyer since 2000. we'll discuss justice scalia's legacy.
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supreme court justice antonin scalia is being laid to rest today. mourners including president obama paid respects while he laid in repose at the supreme court. matter of fact, when i made my respects last night, the line was still several blocks long. paul colliement is a former general of the united states. he clerked with justice scalia and argued some 80 cases before the supreme court. he argued in front of the court in such monumental matters as gay marriage and october and yesterday among the former clerks that stood guard at the court alongside scalia's casket. he joins me from the shrine where the justices funeral will soon begin. you knew him as a verbalest, in other words, there is a tradition in the law of responding to everything through lengthy memoranda but wanted to hear verbally what you had to say when you were a clerk.
>> that's exactly right. i always think of the scalia clerk shship as being an oral clerkship. the action was not in writing but discussions with the justice, mixing it up and occasionally cutting it up with the justice and i think that's a reason why there was such a strong bond between the law clerks and the justice and you saw that yesterday with the law clerks spanning the 30-year career there at the court yesterday. it was very moving to be a part of that. >> and to that end, you also noted in a piece that you wrote for "the new york times" that he changed oral argument as it had existed prior with the supreme court. how so? >> oh, he really did. it was a transformative effect. before he came on the court, it was not uncommon for a lawyer to stand at the podium and in ocho 30-minute argument get three or four questions. that came when antonin scalia came to the court. in his first argument, he
started peppering the lawyers with questions and never stopped, and what he did was contagious. even justices who had been on the court for many years and hadn't asked that many questions were like i'm not going to let the new guy ask all the questions and got into the act and the supreme court has never been the same. >> he was known as an originalest, i think that he had a rather hardened image with some in the public. i met him only once. i met him a year ago. he had a twinkle in his eye. he had great sense of humor and often used humor in the courtroom. explain. >> well, he loved to mix it up with counsel in oral argument and he thought interpreting the constitution and statutes passed by congress with serious business but just because it's a serious responsibility doesn't mean you can't have any fun. and so he would use a very colorful hypothetical, mix it up
with counsel. in fact, this are law professors that do an annual survey and look at every supreme court transcript and counted every time the court reporter noted there was laughter. justice scalia always topped the chats charts of being the funniest in the supreme court. he thought ideas were important but also thought having a smile was important and you really saw not just on the court but the fact he had enduring friendships with justice cakagin but really sort of found a common bond whether it's through intelle intellectual pursuits or life. >> did he never the less deserve the blame that sure rounded the court, i reference it because linda greenhouse wrote a piece in "the times" that made that
argument. >> i don't think he deserves any responsibility for that and i'm not sure the partisan ranker, there may be partisan ranker around nominees or the process. there isn't partisan ranker within the court. they disagree in very strong terms but yet, nonetheless, able to maintain warm relationships a among themselves and antonin scalia was a big credit for that and deserves credit for that and not criticism. >> i have a minute left. i'd love if you would tell my audience the story of the battle days. >> i would love to do that. i would love to do that. a few years back i was arguing a case in front of the supreme court and there was an important part of the argument that deend mani -- depended when a previous
decision was made and the battle days when it court didn't look at the text of statutes or a more recent supreme court decision as part of the back and forth, he said when mr. clement did you think the battle days ended. i said mr. justice scalia the battle days ended when you got on the court. it was accurate because he did have a transformative effect on statutory interpretation but a wonderful answer for a former law clerk to be able to give to his former boss. i appreciate that and the opportunity to share the story. >> great story. we're sorry about the pasting of your friend. >> thank you very much. i appreciate that. >> that's paul clement and the coverage of justice scalia's service begins soon. harper lee, the author of "how
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♪ welcome to our special coverage for the funeral of the late u.s. supreme court justice antonin scalia. in an an hour from now, family and friends will celebrate his life and work here in washington, dc. the funeral service begins 11:00 a.m. eastern, followed by a private burial. the 79-year-old was a leading conservative voice on the supreme court for nearly 30 years. he died suddenly a week ago today, in his sleep at a texas hunting resort. known for his sharp mind and brash demeanor, scalia leaves the supreme court