but we're only as strong as our community. who inspires and pushes us to go further than we could ever go alone. sofi. get there sooner. i'm michael smerconish in philadelphia. we welcome viewers. president trump made clear his vote in the alabama senate

election. >> get out and vote for roy moore. do it. >> one closely watched factor in the battle for jeff sessions old seat is if voters believe or care if roy moore assaulted a 14-year-old when he was in his 30s. can doug jones score an upset? al franken announces he is resigning from the senate not right away, but coming weeks. has franken left the door open? and the fbi is fighting to maintain something that has always been sacrisant. a top fbi agent reportedly sent anti-trump messages. and the president and others attacked the not guilty verdict of the undocumented immigrant in the death of kate steinle.

one juror insists they did its duty. i have a question. if you cheered the termination of someone in the arts caught up in the reckoning over sexual harassment, should you no longer enjoy or listen to their past work? tweet or facebook me for later in the program. first, those voting in the alabama senate race on tuesday and wonder if they may be voting for someone as an adult fondled the genitals of an underage girl, i think i can discern roy moore's past in a single question. is it reasonable to conclude that moore, at age 32, assaulted a 14-year-old given evidence with other teenager girls? my answer is yes. despite the polarizing world, i'm replying on critical thinking. i think custom and practice very

veal reveals this. moore was 38 when he married his wife. then aged 24. nothing illegal. maybe an eyebrow raiser as best. the older that men get, the greater the past they acquire from society for dating women their junior. it tells us about his tastes in one case. there are several women who told similar stories to the washington post. wendy miller was 14 and working as santa's helper at the mall when she said moore in his early 30s first took an interest in her and 16 when he asked her out. gloria was 18. moore was 32. when she said they met at the mall where she worked for a jeweler and they began dating. debbie gibson saved her high school scrapbook. documents after she met moore an an at high school class. he accompanied her to the high

school graduation. she wrote 3-4-81. roy moore and i went out for the first time in albertville. i had a great time. she was 17. he was 34. put it all together. when moore was 38, he married a 24-year-old. when he was in his early 30s he asked out a 16-year-old. when he was 32, he dated an 18-year-old. when he was 34, he dated a 17-year-old. and finally, most importantly, this brings us to leigh corfman. she claims she met 32-year-old moore at the alabama courthouse where he was an assistant district attorney. corfman accompany her mother.

obtained her telephone number and allegedly touched her in appropriately guiding her hand to do likewise. two friends told the washington post she reported her involvement with moore at the time. when sean hannity talked about moore dating teenage girls, he said it could be out of my customary behavior. recently moore on the campaign trail has taken to saying i don't know any of the women. clearly he does. one more thing, as noted by kyle for al.com. in the book, "so help me god." he talked about meeting his wife at the christmas party. many years before, i had attended a dance recital. i remember one of the dances performed by a young woman whose first and last names started

with the letter "k." it was something i never forgotten. could that young woman have been kayla kisor. he said he determined she had indeed performed a special dance reciteal years before. moore said the recite al was eight years prior to the formal meeting. that means she would have been 15 or 16. ironically a court of law, a judge might rule much of this inadmissible because it is too prejudicial and damning. i'm not including gloria allred's client with the yearbook. if you look at the evidence and assess by the legal standard of proof. by preponderance of the evidence or clear and convincing evidence, a jury would believe moore was 32, he was with a 14-year-old. with all eyes of the nation

focused on tuesday's special election pitting moore against democrat doug jones, let's get a view from the ground. joining me former gop chair, marty conconnors. mar marty, this is a referendum of do you believe the accusers. what does it look like from the state of alabama? >> you can honestly assess the circus is definitely in town. we had gloria allred here twice. you know what that means. there are three variables. the black vote. will the democrats succeed in suppressing republican votes. then frankly will rural voters backlash at the lectures they are getting from washington and media? people in the south and western states expect to get preached at on sunday mornings. not by jimmy kimmel on late

night television. >> how about the way i laid out the public record of the accusers? that's not lecturing? that's a pretty balanced analysis? >> i think -- >> i guess my question -- >> it is accurate. >> marty, my question -- let me finish this question. yours is a pretty conventional analysis viewing this race by con the cio con the city we know as i. do you believe the women or do you believe judge moore? is that what the race will come down to or not necessarily? >> i think the race will come down to largely that. there are a couple of things you don't see on the national media. gloria allred has the yearbook. they altered it. they won't subject it to forensic study.

the gadsen mall has been repeated and repeated. the manager of the maul sall sa. he doesn't remember roy moore. you will not see that on jimmy fallon's show. >> you notice that i left out gloria allred's client. why muddy the water? my opinion is whatever notation she added, she should have revealed sooner in time. doesn't necessarily mean that is not his signature. put that aside. what about all the other accounts? it does tend to present a custom and practice for the man. >> let me use your very word. the word is custom. you can say what you want to say and accusations that may or may not have occurred 30 or 40 years ago. what's happened since? normally people of the behavior repeat themselves. i can't see evidence of that in the last 35 years.

>> question for you. the franken resignation. do you think that will factor into the thinking of alabama voters insofar as they go into the voting booth saying the democrats are cleaning house. how can we justify franken is out and we're about to seat roy moore given the cloud that surrounds him? >> i don't think it will have a factor at all. first of all, al franken didn't say these. he is treading water. i thought it was particularly funny when he said he is basically treading water. i think it was particularly funny when he said i want to be investigated by the ethics committee. do you know the last time a sitting senator was thrown out? 155 years ago. if i was franken, i, too, would want the senate to investigate me. >> let me ask you a question in your role as a party man. you are a former state chair. does it occur to you maybe the worst thing that happens nationally for republicans is

that roy moore wins on tuesday because in the mid term election in 2018, the democrats will saddle him with every republican across the country? >> i expect that will come out of the mouth of every democrat who opposes a republican. of course. the answer is quite system. i'm not running for the senate in the state of alabama. here's my set of issues. next question, please. it's really that simple. we had other controversial candidates who did not win. they too, hung round other members. well still have a majority. >> final question. does he win or lose on tuesday? >> my bet is in vegas oddsmakers are saying roy has the edge. i will say plus four. i have to weigh through the v y

vario vary. >> marty, thank you. >> thank you. >> what are your thoughts? tweet me @smerconish. connie, what do you have? from facebook. that is not evidence. i would not doubt he did it. he was with other young girls doesn't mean he was with a 14-year-old. i can't stand moore. i think he is a nut. we will see. brad, you may be correct. i wanted to show a pattern of interest in teenage girls at a time when he was in his 30s. one more quickly if we can. smerconish, the only thing we can be sure of is you are a liberal pushing their agenda. really, linda? watch the program and see if that is your conclusion by the end. there is more to come. be sure to tune in to cnn tuesday night. election coverage begins at 5:00 p.m. eastern. polls close at 8:00 p.m. eastern. still to come, with news that an

fbi agent who was part of the clinton e-mail and mueller probe has an anti-trump bias. the president tweeted his fbi is in tatters. what harm will this do reputati? and al franken steps down from the senate, but i think his speech left his foot in the door. i'll explain. okay folks! let's get the lady of the house back on her feet. and help her feel more strength and energy in just two weeks. yaaay! the complete balanced nutrition of ensure

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mmm. good right? yeah. lactaid. it's the milk that doesn't mess with you. ♪ spread a little love today ♪ spread a little love my-y way ♪ ♪ spread a little something to remember ♪ philadelphia cream cheese. made with fresh milk and real cream makes your recipes their holiday favourites. the holidays are made with philly. i am announcing that in the coming weeks i will be resigning as a member of the united states senate. >> in the coming weeks. that was one of just many aspects of senator al franken's resignation speech that struck me as unusual.

if you listen carefully, he kept his foot ever so slightly wedged in the door. in fact, if instead, senator franken had been making a speech an announcing he was staying and fighting instead of stepping down, he would have had to changes one sentence in the speech. no admission. no c no contrition. if you had done something egregio egregious, you head for the door immediately. that is what trent franks did yesterday. that is not what al franken did yesterday. he was trying to thread the needle of resisting the charges and not antagonize further. franken's hand was forced by female colleagues led by kristen gillibrand who had their eyes on tuesday's special senate election in alabama and wanted to establish the moral high ground by ridding washington of

conyers and franken before alabama voters cast judgment on roy moore. franken walked the plank. maybe he had his fingers and toes crossed. he never admitted wrongdoing. he anticipated an duopportunityo defend himself before the senate committee sgrch committee. >> some of the allegations are si simply not true. others i remember differently. i said at the outset the ethics committee is the right venue for the allegations to be heard and investigated and evaluated on their merits. that i was prepared to cooperate fully and that i was confident in the outcome. >> don't misunderstand. i am not saying that franken is staying. if he leaves in a week or a month, it won't diminish my observation. i say when he spoke on thursday, he sought to leave open the

possibility after tuesday's vote there may be rethinking among his colleagues, perhaps with moore getting elected. where franken would say here's a guy against whom credible evidence exists he assaulted a 14-year-old and he is being seated and i have to pack my bags? joining me now who was with me yesterday morning and called my analysis crazy. minnesota public radio host kerry miller. i invited you to explain crazy. why do you think he said in a couple of weeks? >> you know, michael. when i hear you explain this, i think you are trying to have it all ways. you are saying don't get me wrong, i don't think he's staying. i'm not convinced he's leaving. i'm also going to say that somebody better tell minnesota governor mark dayton what's going on here if franken has

fingers crossed. governor dayton is spending the weekend thinking about who will replace senator franken. so i think it is a done deal. i'm not sure why you're going around saying you think it is not a done deal. but everybody here in minnesota, at least the political leaders are proceeding as if it is a done deal. so i think if franken changes his mind on wednesday morning, it would be a complete shock and i don't think anybody is stressing that. >> i don't think he changes his mind. i think he has tried to leave the foot in the door so if there is a re -- look. he is leaving with a gun to his head which was set by female democratic colleagues in the senate. i don't think he is leaving of his own volition. this guy in the statement acknowledged no wrongdoing. and to the extent your governor is quickly going to make appointment known. i'll finish this thought. it is because your governor

wants to slam that door should. your governor is not on board with franken. >> governor dayton is proceed g proceeding. he is taking franken at his word as most people are. you being the exception. governor dayton doesn't want to leave minnesota unrepresented in the senate. he is aware whoever he appoints needs a few weeks to get to washington and get prepared. everybody in the political class here in minnesota, i think, is acting like senator franken meant what he said. as i said to you yesterday on "new day" i take senator franken at his word. i hear what you are saying. his reluctance is obvious. it is clear that he does not want to be leaving and he feels in some ways maneuvered into leaving. he's a grown man. he got on the floor of the u.s. senate and made this decision and he expressed that decision.

and i just simply think it's kind of absurd he will take i thought about this roy moore and i will not do it. >> i did not say that. that's not my theory. i would not be more crystal clear. >> what is it? i don't think so. i'm confused about what i'm hearing. okay. >> my question is this is a guy who wants to keep his job. let me ask you the first question i asked. why did he say i'll leave in a couple of weeks if it is not his angle to leave his foot in the door? why a couple of weeks? >> you are correct that congress member franks resigned and left. i think senator franken is going to wrap up his business in washington by the end of the year. i think that's the timeline he has given governor mark dayton to name somebody and have that person get prepared to step in.

that's -- i don't think there is anything under lying the i'll do this in a couple weeks other than it is a timeline that allows a replacement to get settled and senator franken to pack up and leave washington. i don't hear anything. >> yesterday the guy in the house of representatives said he is resigning and did it the conventional way. i'm not saying nefarious. no acknowledgment of wrongdoing in a couple of weeks. in combination with tuesday's election and the way in which he was forced to walk the plank, my analysis is he would like to stay and he is hoping there will be requests made to do so. i appreciate your point of view even if i disagree. thank you. good to see what you are saying about this facebook and twitter. from facebook, michael, you are correct. really? i'm not crazy? and i think it is genius of franken to do it this way. the only thing that makes sense. why should franken leave if

moore gets seated? nathalie, that is what is going through his mind. no other explanation. franks, leaving the house of representatives, what did he do? i'm out of here. gone like the wind. that's not what senator franken did. i'm not endorsing it. i'm analyzing it. he would like to stay. he feels he is forced out the door. maneuvered to quote my guest. up ahead. what harm comes when the fbi reputation is set up to a political divide? after the agent who led the investigation into hillary clinton's private e-mail server and had been the lead investigator in the mueller probe? >> this is a rigged system. this is a sick system from the inside. th elec y. ♪

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you know, such has been the reputation of the federal bureau of investigation that the mere threat of there being a federal bureau of investigation has quelled unrest and restored order. those days may be over. this week, we learned troubling fact about peter struck who was the investigator in the hillary clinton e-mail server. he always changed the wording in james comey's criticism of the e-mail from grossly negligent to careless. that cost president trump to tweet about the struck story

suggesting both the flynn and clinton investigations been tainted by buy yiabias. quote, after the clinton investigation and moore running the fbi. its reputation in tatters. fear not. and another, anti-trump fbi agent. t it all starts to make sense. the inspector general is conducting an investigation the handling of the fbi clinton case. will the struck conduct harm the investigation? we have tom fuentes. tom spent years in the fbi. he was a member of interpol's senior committee. tom, i know you worried about the image of the fbi and harm that might be done in all of this to its reputation. explain. >> michael. when the president puts out a tweet referring to the

reputation of the fbi tatters, that is not just bad for the reputation. when he puts out a tweet about a movie star, that is inn okocuou. during my time running the crime program the last five years in the bureau with the international program and on the executive committee of interpol. i saw firsthand, the reputation helped in serious cases with terrorism or organized crime or financial crimes because people trusted the fbi. they trusted it to be honest. they trusted it to be thorough and efficient and effective. you mentioned unrest. that is true. ferguson, baltimore, charlotte. rioting going on. when buildings are set on fire and police officers are barraged with rocks and bottles. what quells the riot in the community is the knowledge the fbi is open to civil rights

vehicl investigations and on the way to investigate what started from normally a police officer involved shooting of a member of the minority community. the fbi has the highest regard from the members of the american public and worldwide from partners that help us everywhere on all of these cases. not just terrorism, but other major criminal events. >> okay. i totally get that. i understand based on your analysis how the president's criticism of the fbi may impact the grand nature of the fbi mission. but that criticism applies, i imagine, to fbi agent struck. by texting a paramore in credit criticism of president trump, that blows the investigation to some extent.

>> absolutely. fooz do i think the same of the thing is the fbi is taking the blame. where i think the blame lies is with comey and his staff around him. the deputy director should have recused himself when his wife took hundreds of thousands of dollars for her democratic political campaign in the state of virginia. struck should not have been involved with the investigation. if he was, not being expressing any public opinions like this that he was anti-trump or pro hillary clinton or any type of bias. we don't want bias investigators. the bias has not affected many investigations. they are conducted with integrity and honesty and thoroughness. it makes no difference which party is in power. ten years ago, we had the fbi basically taking on scooter libby working for the vice president of the united states while the republicans were in

power during the bush administration. this fbi, i had questions the fbi is pro republican. they put republicans in prison. they convicted scooter libby. convicted several other lobbyists. these investigators are not conducted with buy craias. they are conducted strongly. this situation where bias is shown, it should be dealt with. on the other side, the director rey testimony, he was asked about what is going on with the clinton case and what happened with asian struck pagent struck conducting interviews. that's true. that's again the circle right around director comey. that is where the responsibility, i think, lies. he asked questions about why did special counsel mueller pick this person or that person. those questions belong directed

at comey or director mueller. and they are all the subject of ig -- during the clinton e-mail investigations. those are the subject of inspector general investigations which the fbi and part of the justice have no control over. the fbi would like those investigations conducted quickly and make the recommendations of discipline if it is appropriate. director wray said he would in those cases. they need to be handled and handled quickly. again, you can go back to other cases where there were serious allegations made against an fbi agent who acted inappropriately. that person went to jail or fired or disciplined. i'm not covering for the fbi or struck. >> tom, i don't think he covered for anybody. i hope wanted the no bs

analysis. tom fuentes, thank you. >> thank you, michael. >> let me check in on facebook and twitter. any agency can be compromised by a few. jay, nobody here defending not tom and not yours truly. an fbi agent involved in an investigation criticizing to mistress the subject of the probe. that is outrageous. i get tom's worry about the harm of the fbi that could flow from all of this. it will come back to haunt us. one more quickly. smerconish, the fact that trump would throw our fbi under the bus shows his guilt, but also that he is unpatriotic. sophia, if you are a snitch, you feel you are safe in the hands of the fbi. comments of the reputation in tatters. that doesn't help us as americans. by the same token, an fbi agent

who speaks out of turn during an investigation, needs to go. still to come, you can tweet me thoughts in advance on this one. with the revelations that so many famed creative people are accused of sexual misconduct, should we never again watch or enjoy their work? and there was a lot of outrage over acquittal of the undocumented immigrant that killed kate sign lee. i'm about to talk to one of the alternate jurors in the case who said justice was served. why do people put why does your tummy go "grumbily, grumbily, grumbily"? no more questions for you! ouph, that milk in your cereal was messing with you, wasn't it? try lactaid, it's real milk without that annoying lactose. good, right? -mmm, yeah. lactaid. the milk that doesn't mess with you.

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how's it going down there? that's good. lica misses you. i'm over it though. (laughter) that's fine. i miss her more than you anyway. ♪ ♪ hey, my window is closing. yeah that's okay. alright miles. i love you. (phone hangs up) ♪ ♪ yeah i love you too. ♪ ♪ you saw what happened with beautiful kate steinle. this guy said he didn't know it was a gun. oh, he didn't know.

that was a total miscarriage of justice. >> so that was the president just last night. is he right that the acquittal in the kate steinle case was a miscarriage of justice? on the surface, it sounds outrageous. jose garcia, an undocumented immigrant deported fives times, caused the gun to be fired and the bullet killed kate steinle. walking nearby with her father. the jury exonerated him of murder charges leading to outcry from the president and many on the right. what about the jury box? my next guest says they made the right call given the case it was presented. the mechanical engineer earned a ph.d. from stanford. he wrote the piece for political co-. i saw the trial up close. the jury did not botch it. phil, you did not vote. you saw the evidence. you heard the jury instructions and you chatted with your

colleagues when it was all over. true? >> true. >> let me take you through some of the aspects of the case. first of all, we hear this guy was deported five times. that's not what this was about. that wasn't in the purview of the jury? >> we were told by the judge at the beginning of the trial immigration was not at issue. it not come up as evidence during the five weeks. >> she was killed by a ricochet. what does that tell us? >> i think that says something about the state of mind of the defendant. it was a very bad ricochet. it hit the ground 12 feet and traveled another 78 feet to kate steinle. that is good evidence he did not intend to kill her or anyone. >> was the gun his? >> no. >> somehow did he then happen upon that weapon and what is your conclusion as to how the critical events transpired? >> the defense claimed he found

the weapon on the pier wrapped in fabric. picked it up out of curiosity and accidentally caused it to fire. o i'm not sure what i think. we don't have enough evidence to know what happened. we have a presumption of independenc innocence. we have to go with the evidence that is in favor of the defendant in that case. >> he was charged with first-degree murder and lesser charge which included offenses of second-degree murder and involuntary manslaughter. let's focus on the murder charges. why did the jury believe the criteria was not met? >> the murder charges requires inte intent. it must be deliberate. for second, he must have had malice of forethought. doing something extremely dangerous or intended to kill. because of the ricochet and few other pieces of evidence and general lack of evidence that showed his state of mind,

including direct witnesses of him holding the gun or shooting the gun, it is hard to prove beyond a reasonable doubt. >> lacking intent. the jury could not conclude on the murder charges. of course, the manslaughter conviction was not successful either. why not? >> i think that is surprising to many people. manslaughter does seem like appropriate charge for the case. the jury was unable to convict on manslaughter because the prosecution chose to include the crime of brandishing a weapon and requirement for that charge they had to choose some crime committed during the act to cause death. no evidence of brandishing was presented. i don't know how the jury could have found him guilty beyond a reasonable doubt. not being able to convict on the manslaughter charge. >> what are you describing in the aggregate is the methodical process where the jurors went through as they are supposed to do and charged with doing each

of the elements of the crimes with which this guy was charged and seeing whether they're met. they were not met with murder because there was no intent offered. now with regard to manslaughter, you are saying during closing arguments, you hear brandishing for the first time and that is not an element of manslaughter. >> that is right. the jury's job is not to do what they think is right. it is according to law as given to them. they made the right call. >> so final comment. you know, this gets cast in the oh, the folks in of san francisco. all those liberals, they let this guy walk and he murdered kate steinle. it sounds outrageous. your response? my response is i hope anyone in the country would have acted the way the jurors did. they acted well in setting aside the preconceived notions and

voted in the rules of the law with the way the case was presented. >> and phil, i recommend what people read what you published politico. i'll tweet it out in the break. it lay it is out in more time. thank you so much for being here. >> thank you for having me. >> let's check in on facebook and twitter. it is not easy. you get jury notice. they fulfill their responsibility and outsiders glom on and say you blew it. deeba. he should have tried forema for manslaughter. they did not meet the element of crime committed in the act that caused the death by saying that crime was brandishing. i looked at this and came to the same conclusion. the way it was prosecuted is subject to criticism. you don't hear anybody say that. you know why? that is not a good sound bite. up next, tweet me your thoughts.

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my name is jamir dixon and i'm a locafor pg&e.rk fieldman most people in the community recognize the blue trucks as pg&e. my truck is something new... it's an 811 truck. when you call 811, i come out to your house and i mark out our gas lines and our electric lines to make sure that you don't

hit them when you're digging. 811 is a free service. i'm passionate about it because every time i go on the street i think about my own kids. they're the reason that i want to protect our community and our environment, and if me driving a that truck means that somebody gets to go home safer, then i'll drive it every day of the week. together, we're building a better california. in this era of reckoning with regard to sexual impropriety and sexual harassment, what is our responsibility as consumers? every day the arts sections are filled with new allegations of bad behavior, of cultural icons from actor dustin hoffman

allegedly groping a broadway co-star to the metropolitan opera conductor james levine's alidged relationship with an underaged boy. if i listen the an old recording of the met or i rewatch "tootsy," am i complicit? in other words can we as consumers continue to enjoy the fruits of the labor of those who are now under a cloud of suspicion? i know these questions are not new ones. we've lived through troubling news over people like michael jackson, woody allen. the famed portrait of picasso is notorious. it has the potential to stanlt a pretty wide spectrum of our artistic endeavor. i find myself wrestling with so many questions. can i still enjoy "transparent" when we're not so sure about the accusations of jeffrey tambor. am i damned if i want to listen to an old bill o'reilly show or

c.k.'s standup. if we say these people should no longer be allowed to work in their respective fields, would we be hypocritical to still enjoy their past work without any twinch of conscience, and this list keeps on getting longer and longer. can i still watch "entourage" reruns, "prairie home companion?" what about the pixar movies, weinstein movies. people in the public eye tend to be larger than life by the definition but when we hear the sordid details, what does it mean with our past relationships to their work. i'm having trouble making up my mind. i polled people on my sear yis xn webb site. as a consumer should you approve them, should you no longer watch and listen to their past work.

still listening and watching? 68% no longer listening or watching. 32% or that's what they say. your thoughts welcome. we'll keep this conversation going on my facebook pain. quickly hit me with one or two if you can. how can you watch a performance objectively without thinking of that perp's actions. buck, you might be thinking of it but still watching. i'll see you next week. it's ver... sfx: (balloon squeals) ok can we... sfx: (balloon squeals) i'm being so serious right now... i really want to know how your coffee is. it's... sfx: (balloon squeals) hahahaha, i had a 2nd balloon goodbye! oof, that milk in your coffee was messing with you, wasn't it? yeah. happens to more people than you think. try lactaid, it's real milk, without that annoying lactose. mmm. good right? yeah. lactaid. it's the milk that doesn't mess with you. you or joints. something for your heart... but do you take something for your brain. with an ingredient originally found in jellyfish,

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