convfefe. >> thank you for being with me. i'll seal you back here in one hour from now live in the cnn news room. smerconish is next. ♪ i'm michael smerconish in philadelphia. we welcome the viewers in the united states and around the world. a block buster, washington post report confirms president putin gave direct orders to meddle in the 2016 u.s. election. putin sought to damage democratic presidential candidate hillary clinton and help elect her opponent, donald trump. given what president obama knew and when he knew it, according to a former senior obama administration official, did that administration quote-on-quote choke when it came to responding to the

russian interference? i'm going to ask general michael hayden, formally the head of the nsa and cia what the white house could and should have done. and green party candidate jill stein back in the news this week with a round of finger pointing over hillary clinton's loss. she's here to respond. plus, in wisconsin, the partisan voting map let the gop win 48% of the votes, but they got 60% of the seats. will this be the supreme court case that finally ends gerrymandering? bill cosby's case ended in mistrial, and the prosecutor immediately declared he'd retry it, but isn't he forgoting all the costs? financial, human, and otherwise? but, first, did we all misread a critical tweet about taping from president trump? let's review. tuesday, may 9, president trump fired fbi director james comey, and then, three days later,

friday, the 12th, the president tweeted this, james comey better hope there's no tapes of our conversations before he starts leaking to the press. the tweet seemed to be a reaction to the "new york times" story that day by this headline, in a private dinner, trump demanded loyalty. comey demured. two offered an account of the dinner that was at odds with the president's version as he told nbc the night before. the president said loyalty was never raised. everybody assumes that in the tweet president trump was suggesting that he had taped their conversations. and that he was threatening comey, that he might release them. i have a different interpretation. maybe president trump wasn't threatening to release tapes. he was saying, hi, jim comey, you better not have taped me. it all depends on how you read the president's tweet. comey better hope there are no tapes. i thought of lynn truss's book,

you remember eats shoots and leaves, zero tolerance approach to punctuation. you can either be talking about a panda that eats both bamboo and leaves or a violent diner that eats, then shoots, then leaves. on thursday, six weeks after that first tweet, the president sent out a new pair of tweets. they said this, with all the recently reported electronic surveillance intercepts, unmasking, and illegal leaking of information, i have no idea whether there are tapes or recordings of my conversations with james comey, but i did not make and do not have any such recordings. notice he still is not saying, well, i didn't tape comey, but he does not rule out the existence of other tapes or recordings. he's leaving open the door that somebody taped him. and then yesterday, the president appeared on fox news. >> when he found out that i, you know, that there may be tapes

out there, whether it's governmental tapes or anything else, and who knows, i think his story may have changed. i mean, you'll have to take a look at that because then he has to tell what actually took place at the events. >> so now he's saying that his tweet forced comey to be an honest witness, but there's never been evidence of comey as a per vary cater, so put it together. president fired comey. then he told nbc he never asked for loyalty. then he was contra didicted by comey with specificity in the "new york times," and then he, the president, worried comey had a tape, so he issued the tweet as a warning, and then only after the passage of 42 days when satisfied comey was not taping him because there were no further reports, he put the issue to rest. it was never about him taping comey. it was his concern that the reverse was true. of course, the whole comey

controversy is just one aspect of the russia meddling investigation. according to a detailed report by the "washington post" news of russian interference first landed on president obama's desk early last august when a cia courier delivered an eyes only file directly to the white house. inside was intelligence, a report showing that russian president putin personally ordered a cyber campaign to damage democratic candidate hillary clinton and help elect donald trump, so the administration was forewarned, but was it fore arounded? did the president do enough, meaning president obama to head off the russian meddling? joining me now, former head of the cia and nsa, general michael hayden. this is a tweet from the president yesterday on the "washington post" blockbuster, just out, the obama administration knew far in advance of november 8th about election meddling by russia. did nothing about it. why? all caps.

then, tomorrow, he'll appear on fox news, but already, this tape has been released. roll it. >> the cia gave him information on russia a long time before they even, you know, before the election. if he had the information, why didn't he do something about it? he should have dope something about it. >> i mean, the president is the same guy who said, look, it may be the chinese or a 400 pound guy in new jersey in his bed. is he trying to have it both ways, like, hey, why didn't obama do something while at the same time being dismissive of it? >> michael, i think he is. keep in mind he's never fully embraced the theory of the case that you just laid out there. the russians actually did it, and it's up to him now to do some things about it. now, look, there's an element of truth, i think, in what president trump says. i think the obama administrationfuadministratio w in the response. it's not that they didn't do anything. they actually did several things to try to warn the russians away from this activity.

i think in retrospect, even the obama team thinks they should have done more. michael, one of the reasons they were reluctant to do more was the narrative that then president-elect trump had, that the election was going to be rigged. so any overt activity from the white house would have fed that narrative as well and delegitimized the election in a different way, so even candidate trump bears some responsibility here for what happened. >> in other words, the concern, if you buy into the narrative of the post, and i think it makes logical sense, the concern on the part of the obama administration was the political ramification of whatever they might do on the 2016 election, and the consequence was, we really didn't treat it, perhaps, like the national security matter that it was. >> i think we appreciated it as the national security matter that it was, michael. the article in the post yesterday just drips with

urgency from the intelligence guys, from john brennan and clapper, remaining urgent out of this even out of government. the problem was then what did the guys do about this? again, we're agreeing they didn't do enough. i think they recredit, i regret they didn't do enough, but i understand why they were reluctant to be more active, and, look, look at the circumstances we have here, michael. we have a political campaign, and mr. trump seems to legitimize a chance of lock her up campaign rally, that praises wikileaks as a legitimate source of information, that claims that the election is going to be rigged. now, i don't want to get into any formal witting collusion, but that may be all the collusion that the russians needed to have the effect that the russians wanted to have on

the electoral process. >> the lead of the story speaks of putin's direct involvement, although it does not share exactly what's known of it. you ran the cia, the nsa, you know his personality. does it comport with his m.o. as you understand it? >> it does, and, michael, i need to put the caveat out there. been out of government for years. i don't go back for briefings. i did read the very detailed article in the post yesterday, and it does have a powerful ring of plausibility in terms of all the elements in the article based upon my life experience. yes. >> president obama spoke the date was october 1 8, addressin the aspects of this. let's listen to the comments and comment on it. play it. >> there is no serious person out there suggesting somehow that you could even -- you could

even rig america's elections. in part because they are so decentralized, and the numbers of votes involved. there's no evidence that that has happened in the past or that there are instances in which that happens this time. and so i'd invite mr. trump to stop wipie in whining and go ma case to get votes. >> but, general, president obama surely knew at the time according to the post the russians were trying to tap into 21 different states' electoral systems, and at minimum cause chaos, if not alter the outcome of the election, but to screw with us. >> that's all possibility, michael. you had the president warning vladimir putin in a a face-to-face meeting, i believe, in september, not to meddle in the actual electoral process. on the margins of the meeting, the president said something i found striking at the time, and

now it makes sense. out of the blue, he suggested that the united states has the greatest concentration of cyber power on the planet, both offense and defense, and i wondered who he was talking to. clear now. he was talking to putin, and i think the president was fairly firmly grounded. the biodiversity of the american electoral process, i think, does give it a fair amount of resilien resilience, so i understand why he said what he said, but, again, michael, i return to the earlier point, even team obama now wishes they were more forceful, direct, and more specific with the information they had in hand. >> well, what could -- what could the white house have done? what could the obama white house have done differently? >> so, what they did do was to offer help to state election officials, and probably because they were not as forward leaning as they might have been in explaining the danger to state election officials, telling them

what we knew already, most of them push back. and didn't want to accept federal help on the grounds of federal meddling in what were state and local procedures. so, again, michael, being a bit more transparent, a bit more open, maybe even a bit more, can i say this, alarmist, in terms, or alarming, in terms of what we were saying about the intervention. now, we did other things. we warned the russians. according to the story, we quite visibly began to plant some things in russian infrastructure. now, i don't know that -- if that is true, but, again, it has the ring of plausibility demonstrating to the russians so far and no further, we have tools in this kind of dispute as well. >> what concerned me the most from the story is the fact that it seems that when those in our political apparatus were in the lop, they were partisans first

and americans second. you know, used to be our partisanship ended at water's edge and united against a common enemy like russia, but in this case, if you read the story closely, there was a callus going on in too many minds whether this would bend their party or the other party. >> michael, the saddest chapter is when the administration sent experts to the hill to greet the senior leadership of american congress seeking some sort of bipartisan statement with regards to this, and they couldn't get it. the republicans, particularly, backed aspeculating here, because they felt joining that consensus might have hurt candidates chances. i don't know. coming out of that meeting, we now have the administration pulling back, not as forceful as i suggested they should have been, again, to avoid the appearances that they were partisan, and they were trying

to rig the election. this was not our finest hour. >> and, finally, you will not offend me if the answer is no, but did i convince you with my opening monologue that perhaps everyone misread the intent of president trump's tweet when he talked about comey and the tapes? >> michael, that was a very impressive workable hypothesis. i need to think my way backwards now from your conclusion. i will tell you what struck me, you know, the preamble there, where he said, well, i don't know who may or may not be taping, and he talked about unmasking and surveillance and so on, i have to tell you, michael, in the lens i use to look at that. that was just one more example of the president for political convenience throwing his intelligence community under the bus. they were a political prop or at a minimum, trying to on the skate a giant climbdown in the back half of the tweet.

>> i'll take your qualified endorsement of my thinking, general hay skbden. thank you for that. >> thank you, michael. >> what's your thoughts? what's your tweets? hit me, what do we have? facebook and twitter. i'll continue to read your comments, opening commentary is disappointing, exactly what trump's teamments, #sad. nicole, how many times do i say it? it's not whether it helps or hurts the president. i call it as i see it. i offered you, i think, a plausible alternative. next, what do we have? why would comey immediately write a memo after conversation if he had recorded it? well, because he did not record it. he didn't record it. president trump comes from a place where he's suspicious that everybody's wearing a wire. so, no, comey did not record it. i'm trying to get in the mind of the president, and perhaps the president picks up the "new york times," saying, holy crap, look at the level of detail in this

story. was comey wearing a wire? one more. quickly. my favorite part of the show, you are just like the rest of fake news, how about the good he has done all negative with you. we are safer with trump than obama. there's a front page story in the "washington post" today confirming that russian president vladimir putin directly screwed with our election. now, sir, ma'am, you want me to ignore that? is that fake news? come on. coming up, we all know about michael flynn's dinner date with putin. guess who else had a seat at the table. green candidate jill stein. eager to chat with her next. i cy with all the over-the-counter products i've used. enough! i've tried enough laxatives to cover the eastern seaboard. i've climbed a mount everest of fiber. probiotics? enough! (avo) if you've had enough, tell your doctor what you've tried and how long you've been at it.

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zblrch there's been commentary as to the influence green party candidate jill stein had on our election.

just look at the headlines, as a matter of fact. i'm curious what she has to say about this and other current events, and i'm thrilled that joining me now is dr. jill stein. dr. stein, this "washington post" story, blockbuster, pointing fingers directly at putin for having directed the meddling in our election, i find to be pretty coal pmpelling of involvement. does it make you reconsider the dinner invitation you received in 2015, and whether him giving you that platform was, itself, a form of meddling. >> so, let's be clear, and i have not yet seen that article from the "washington post," but there's been quite a lot of evidence appointmenting to the hacking into our election systems, especially voter registrations, and there's

concerns about the vulnerability of the system. that's not new. i called for recount to examine, in fact, the voting machines and the software to know, in fact, because, right now, it's acknowledged that we got a real problem here, and whether it's the russians, whether it is other hostile nations, whether it's criminal networks, we know that our voting system is wide open and vulnerable to all of this, so we need to get to the bottom of it, and above all, we have to start protecting our voting system right now. that means, paper ballots because you cannot corrupt them. that's an enduring record. it means auditing the on the kl scanners to know we have accurate counts, and then go back and recount if there's questions about it. we need cyber security, best practices in all levels of the voting system. people can go listen to the testimony before congress. just last week, by one of the foremost cybersecurity experts. it's not rocket science how to fix it.

we need to make our systems not just against russian interferen interference, chinese, or mafia, but private corporation who control the voting software and who have a stake in the outcome of the elections. this system needs to be protected so that americans can have faith and confidence in it. >> okay, i'm for all of that, but now take me inside the dinner you had with putin in 2015 and the prominence that it afforded you. my question is, was that in and of itself a form of meddling along the lines of, let me give attention to green party candidate, jill stein, on the theory any vote, you know the here hi, any vote for stein 12 a vote to hillary clinton. what was the dinner about? tell me about it. >> let's be clear. that was a conference. that picture actually did not begin to circulate until long after the election. it's not, like, it was a public relations bump. it essentially was not covered

here in the u.s. there was media at that conference, and it was a day long conference where my method was very clear. it was a message of my campaign which was that we need a peace of sense in the middle east, and this was not a message particularly friendly to the russians. it was saying to them that we need to stop bombing. they had just begun bombing in syria. i went to say this essentially followed the catastrophic footsteps of the u.s.-middle east war, and that what we needed was to collaborate on these piece offensives with a weapons embargo, with both the u.s. and russians, bringing allies into that weapons embargo as well as a freeze on funding of any countries that is on the bank account of any countries that continue to fund terrorists' enterprises, so, unfortunately, that message, i would have loved for that message to have gotten out, but there was basically zero

coverage. it's now circulating, and it's funny, michaelings you have to ask, why is that picture kicking up a storm right now? you know, i think it's reltded to the fact that the democrats are looking for someone to blame. you know, they are looking at bernie sanders, comey, looking at me. can they blame us for the loss of a thousand legislative seats over ten years? for the loss of two-thirds of governors, for the loss of the recent special election in georgia? i don't think so. i think the democrats really have to look internally. people ahave had it with being thrown under the bus. >> right. they are in their worst shape since reconstruction, the democratic party. it's much bigger than whatever went on in 2016. no doubt. but i think many of us are now going back and we're, as i like to say, looking at every step of the way of the 2016 cycle. you know, dr. stein, the

argument. put up the vote tallies, katheri katherine. she needs the opportunity to respond. michigan, you get 51,000 votes. trump wins by 10,000. what other states? keep them going. wisconsin. you get 31,000, trump wins by,000. one more. the state of pennsylvania. 49,000 for you. he wins by 44. will you respond to the idea that, but for you, hillary clinton would have. elected? >> absolutely. thank you for the opportunity to get this message out because the exit polls and the studies made it clear, and i know from conversations on the ground that greens -- studies show that 61% of greens would have stayed home rather than have voted for either donald trump or hillary clinton. those that go out to vote, over one-third of them would have voted for donald trump, so wishing that picks fly doesn't

make pigs fly, so democrats might wish and they might assume that they own green vote, but they don't own green votes. candidates have to earn our vote, and hillary clinton did not earn the vote of greens and hillary clinton and donald trump did not earn the votes of -- neither greens nor 45% of the american people who refused to votes for either of these two candidates who were the most distrusted and unliked candidates in recent history. people were clammoring for other choices. >> you can understand looking at that data, you can understand how there would be an analysis that says, vladimir putin was reading the tea leaves in the united states and thought, bring jill stein to dinner, anything -- i know you had a meeting as well with more, and went into red square and recorded those moments, meaning, anything he can do to give you prominence is going to pull from her, despite what you said.

you have the final word on this. >> i had a meeting with corbin, a meeting with the deputy head of climate negotiations in paris, so, you know, this is the job of candidates is to represent people and important policy initiatives that are getting short circuted. students locked into a lifetime of predatory student loan debt, workers who do not have jobs, people who do not have health care and deserve health care, every human right, that pays for itself, doesn't cost us anymore. these are critical to the future, and to get that 45% of people back into our elections and to get them voting, we need to hear more voices and more choices, and, thank you, michael, for helping to make that happen a little bit today. >> dr. jill stein, thank you for being here. we appreciate it. >> thanks so much. let me see more of what's beginning on on facebook and via twitter. what do you have? jill stein was also in putin's pocket.

putin is good at funding vulnerable puppets, a little praise and cash, they all go in. it's a legitimate subject to go back, and how often have we talked about flynn taking, 45,000 from rt and the dinner, and there he is at the table. then it's a second check, huh, jill stein was there too. why? with putin? invited to dipper. was that his way to give her prominence? one more if there's time. dr. jill stein, don't want to admit she was was played by putin. up witting tool to prop her up for campaign against hrc. jill stein makes some sense when she says that the two candidates who were running were viewed in circles as the most quad of the modern era, squaring off one another, and many people were not going to vote for either. up head, when the bill cosby case ened in mistrial, the d.a. made an immediate announcement

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immediately after the judge in the sexual assault case against cosby declared mistrial last weekend, the prosecutor announced there would be a retrial. >> we will evaluate, review the case, take a hard look of everything involved, and then we will retry it. as i said in court, our plan is to move this case forward as soon as possible. >> where steele said we'll look at everything involved and retry it, perhaps he should have said,

we will take a hard look at everything and decide whether to retry it. first, steele announced that without knowing the split among deadlocked jurors. one report now says there was a lopsided vote in favor of conviction. another says there was more of an even deadlock with votes of 7-5 or 5-7. the poor decision to retry also raises some concerns that the prosecution has political overtones. steele was elected over a former da, bruce caster, on pledge to prosecute cosby where castor said there was nod evidence to do so. testimony testimony cosby gave in the civil case that he'd only agreed to because castor decided not to prosecute. in other words, if cosby believed he'd face the risk of prosecution, he certainly would have invoked fifth amendment, and andrea would not have been paid. and castor has said that's partly why he chose not to pursue the criminal case, to let

her have a compensable civil suit, which was apparently the case. another consideration is the age of the evidence. the underlying events are already 13 years old, and the evidence will not get freshermefresher me. it's a he said, she said without forensi forensics. one said, they should have left it closed, not enough evidence to move the case forward, no stained garment, no smoking gun, no nothing. then there's the cost. they said it was probably the largest undertaking in this county in terms of what it put on the criminal justice system. in a post trial presser, steele said this. >> you can't put a price tag on justice, and if you do, you're saying that because somebody's wealthy or famous, that they don't deserve the same kind of

justice that everybody else does. >> but actually only a defendant with cosby's wealth could sustain two complex tries with high level talent. anybody else would take a plea agreement regardless whether the facts warrant. here's the biggest consideration of all, the reach of another hung jury or even a defense verdict on victims of sexual assault. what impact might that have on future victims if they see an unsuccessful prosecution of a defendant in a high profile case. might it have a chilling effect against reporting? one of cosby's alleged victims disagrees with me in this respect and told me there is value in the prosecution of the case because of the conversations that it has begun. last week, before the verdict, here on cnn, i interviewed victoria valentino, claims of sexual assault against cosby. saying cosby raped her in 1969 at 26 as she was grieving the

loss of her son who drowned in a swimming pool. she attended every day of the trial. after the mistrial, had her back on the radio show, and i asked about the pluses and minuses of living through a retrial. here's what she said. >> well, you know, the conversation is open. it's on the table. we're talking about it. people are coming out of the woodwork because we spoke up, and suddenly, there's so many people coming to us, through private messages on facebook, through finding us on e-mail, telling us about their own perm stories of rape, incest -- >> but if the next trial ends the same way, i asked, might it send women the message, you can't win even if you do come forward? >> it's often the reason why women stay silent. they are afraid. they feel not believed. they feel shamed. they feel dirty.

they feel humiliated. they are just bottom line afraid to speak out or not being believed, and then, of course, historically, the legal system has revictimized them, the victim. hopefully we'll have a shift up. all i can say is the conversation is open, on the table, we're talking about it, and it's not going to go away. the work still goes on. >> she raises good points. don't misunderstand, i'm not judging or second guessing jury's deliberation, they saw the evidence. they weighed the testimony of the witnesses. they found it inconclusive. i'm just saying that the decision as to whether this case should be retried is complicated. of course, if retrial ends in a guilty verdict, nobody's going to second guess the da, but that's about the only certainty that remains in this case. coming up, a 200 mythical creature stocks the supreme

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or $0 copay. illegitimate, seriously harmful, incompatible, and manipulation of the electorate, how various supreme court justices describe issue of gerrymandering, redrawing of electoral maps to guarantee one party has districts, unconstitutional to draw lines based on race or ethnicity, but so far they got away with it based on partisan lines. the key question is, how do you come up with a manageable test? as i've shown before, this ends up with map shapes that are incredibly kovn lewded and why we're in this divide. nevertheless, in all the cases brought to the court so far, the court has never figured out a way to decide which maps are valid, which are unconstitutional, and perhaps that changes because this year,

this case is going to the supreme court of the united states. this week, the justices announced they will review a case in wisconsin that struck down the redistricting map that the gop controls legislature created after the 2010 census and here's why. in the 2012 state house race, republicans won only 48% of the popular votes statewide, but they received a super majority of 60 seats. the challengers in the new case say they've found a way, and joining me now is one of the lawyers arguing this before the supreme court, nicolas, a professor at the university of chicago law school. professor, one question before the methodology. why? why should gerrymandering be viewed in the same way as if it were racial or ethnic in the purpose? >> well, thanks for having me, michael, on the the show. we're not arguing that partisan gerrymandering ought to be treated in exactly the same way as racial gerrymandering. we're not arguing the party is

equivalent to race. if you are looking for an analogy for the theory, it's really one person, one vote, where 50 years ago the courts said that big variations in district population are not constitutional. this test is based very closely on the frame work that the courts used for decades to decide one person, one vote disputes. also, there's another similarity here between partisan gerrymandering and one person, one vote. 50 years ago, there was a serious threat to american democracy, and the supreme court intervened and put an end to that threat. today, partisan gerrymandering is also something that threatens to undermine basic democratic norms, and that's why, again, we're hoping that the court will step in and fix a really serious democratic malfunction.

>> do you anticipate this issue in the supreme court of the united states lines up with the split where kennedy is in the middle making the decision? >> it very well may, but it's worth noting the partisan gerrymandering has not always been an issue that follows the predictable ideological cleav e cleavages in the court. in the '80s, president reagan and bush rail against gerrymand gerrymandering, and arnold schwarzenegger was pushing for reform, and in the first case that the court ever took in 1986, the key opinions that recognized the theory were written by center right justices, not by liberals, so, today the issue may fall along more predictable cleavages with

justice kennedy in the middle, but there's not consistently been the case and it shouldn't be the case. >> this is the most difficult question of all. in 60 seconds, are you able to lay out the solution you've devised where the court said in the past, well, we don't like it, but how do we fix it? what's your fix? >> so we have a three-part test we think is workable and the lower court agreed it's workable. prong onefuls a math test with discriminatory intent, so in order to benefit one party and handicap another party. prong two has the math exhibited in a large, durable discriminatory effect where measures, metrics like the efficiency gap come into play, and then prong three, is there any kind of legitimate or neutral justification for the large and durable partisan effect that we see? so that's the whole test.

hopefully in under 60 seconds. >> you were able to reduce to a numerical a quantitative score whether gerrymandering crossed a line in a particular state, is that it in a nutshell? >> that's the key to the second prong of the test. it asks whether the math has shown a large and durable discriminatory effect. >> well -- >> i can go -- >> i hope it's successful. my cards are on the table. i think that gerrymandering needs to be reigned in, both parties have done it, they've done it for a long, long time, all the way back to eldridge jerry, but we're self-sorting. there's a self-sort taking place in this country where we associate, i'd say, too much with the like-minded. it's not going to be a panacea if you're successful. good luck, professor. >> thank you very much. still to come, your best and

worst tweets like this one. if scotus accepts this formula for gerrymandering, then they are writing law, and that's not what nay are there to do. >> tom brady, you throw a hell of a spiral. oh, it's not that tom brady? i think it's a compelling argument. about one person, one vote. i think it's >> i think it needs to be corrected. back in a sec. now i have nicoderm cq. the nicoderm cq patch with unique extended release technology helps prevent your urge to smoke all day. it's the best thing that ever happened to me. every great why needs a great how. i hafor my belly painking overand constipation.ucts i've had it up to here! it's been month after month of fiber. weeks taking probiotics! days and nights of laxatives, only to have my symptoms return.

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7:00 eastern, 4:00 in the afternoon out west. we're live in the cnn news room. great to have you with us. don't look at me. look at the guy who was here before me. that's president trump's message tonight in response to the stunning washington post report detailing how and when former president obama learned about russia's campaign to interfere in the election. the president tweeting just a short time ago since the obama administration was told way before the 2016 election that the