♪ i'm michael smerconish in philadelphia. is this going to be trump's long rumored saturday night massacre? the new york times says rod rosenstein discussed invoke thing 25th amendment. if true, president trump has reason to fire rosenstein and if sessions won't do it, could clear the path to firing robert mueller. and the conformation battle over brett kavanaugh at a fever pitch

with a deadline today about whether his accuser will testify before the judiciary committee. his friend tweeted an alternate theory accusing an innocent look alike before deleting and apologizing. as joe biden considers whether to run for president in 2020. might he have an anita hill problem for his role in the clarence thomas hearings? and could there be a worst week for his sentencing for sexual assault? what will the #me too factor be? what are we to make of the times story friday claiming deputy attorney general rod rosenstein discussed the possibility of invoke thing twoivth amendment and suggested wearing a wire during his dealings with the president.

this will onwn fuel the cries o witch hunt in this investigation. if you're the president -- he calls ag jeff sessions and says fire rosen stun. when sessions refuses, he fires them both. then he install as pliable ag that shuts down the mueller probe. i'm just observing the cover the story provoids him. at least one person said rosenstein brought up wearing a wire ingest and other outlets are now backing that up but thetumes report it he tds twice. rosenstein denied the story and calling it factualy incorrect and quoting anonymous sources. and after the white house meeting issued a second denial

saying quote i nv pursued or authorized are cord thing president and any suggesten is absolutely false. go to my website this hour and answer this question will the president now fire rod rosenstein? joining me is allen dershowitz. his latest book is "the case against umpeachiimpeaching trum" >> if he's smart, he'll talked a vantage of this and not fire either of these people? why? sessions is going to be leavic after the midterms no matter what and rosenstein, he has the constitutional authority. no president has to tolerate somebody who may have tried to

pull off a palace coup. though we aught to have hearings on this. we need to have facts rather than he said, he said, she said. but what he could do it very plauzably is have his lawyers go tocourt and make movement to remove rosen stain because he has a conflict of interest. first, he wrote the memo and wrote it willingly, authorizing the firing of comey. you can't investigate an ubstrekz instruction of justice and be part of it. the times reports that his goal is to be vindicated and the way he can be vindicated is by putting all the blame on president trump. so i think a court would look seriously on a motion to recuse and that wouldn't make it into a saturday night massacre, it wds make it into pursuing a legal remedy that everybody is

entitled to pursue. >> as i heard the first part of your answer, you'd tluk see him under oath answering questions to whether this is true. >> absolutely. and everybody else who was in the room. let them testify as to a, what he said, the tone, are there any memos. remember his denial is a vague denial. he said i didn't pursue or authorize it. i thunk it's true he didn't perstew. if that tells us something about his state of mind after having writen the memo to fire comey, it tells us a great deal. i don't think anybody should do anything just like in the kavanaugh case. people love to say i believe him, her, him. you're not entitled to come to conclusions about belief until you hear the facts. facts are stubborn things as john adams taught us 200 some

years ago. >> last night again with regard to rosenstein. here's something he said in springfield, missouri. >> you've seen what's happened at the fbi. they're all gone, they're all gone. they're all gone. but there's a lingering stench and we're going to get rid of that too. >> i think i know what he's talking about with the lingering stench. i have to believe this morning that conversation at bed minister, which is where the president is located is am i better served with or without rosenstein and maybe the calculus is when the mueller probe is concluded i get to say who's surprised about the outcome? afterall you have this guy

rosenstein who want tootd weed wire on him. >> right now rosenstein's on the defensive, you're on the offensive. poperal actual for the first time looking a little sympathetic towards your claim that the investigation is not a completely objective one. i think yesterday was the best one for president trump and the day before. i think this rosenstein revelation plays into the strategy that this is to be tried in the court of public opinion, looking towards a possible impeachment and now if you have a tainted prosecution by a guy trying to conduct a palace coup, he has to go back to school and read the twoic25t amendment. it was not designed to let people in the administration

take over the government because they don't like the way it's being run or there's disorder in the white house. that's not what the amendment was all about. >> i underscore your comments bute those weighing in believing one or the other. i'm so disgusted with those that have already rendard verdict without hearing from the participants. therefore whereby was disappoint would the president pouting his thumb on the scale and saying if this occurred can, she or her parents would have gone to the fbi, he presums. >> i think he's completely wrong about that. we know many, many people who have been subject to sexual assault, particularly when they're 15 years old at a drinking party are going to be very reluctant and people mature and i thing we have to understand why she may have waited to make this revelation

to her husband, therapist but i think it would be best by the way to have him testify only after she testifies. during the inquisition they with would have the accused first give his testimony. only then would the accuser come forward. i think it would be good if they were both examined by careful, sensitive litigators, rather than senators worried about their political futures and how they will look on television and in the end we have an opportunity to come to some reasoned judgment. and i think it's going to be in the end, inconclusive and then wi we veto determine 17 year olds and 15 year old said by a man who led an exemplerry life. we shouldn't make it without absolutely all the evidence. >> i agree.

>> give them as much time as they need. this is too important to come into being and we lehave to pass the shoe on the other foot test. would we be say thing same thing if this was a liberal president who had a similar accusation? i always apply and pass the shoe on the other foot test. whereby want to make sure everyone else does that. this morning hillary clinton talked about an investigation. she was absolutely right but she was not the right person to make that argument because she didn't pass the shoe on the other foot test when she participated in trashing the women who were mang that accusation. you have to pass the shoe on the other foot test. >> i like your comment relative to approach. i have been continually underwhemed by members of the senate judiciary. i'd much rather intrust you or me. i'll carry the bag to do the

questioning of what's too come. >> i'd rather have a sensitive, woman experienced litigator who will have experience on all sides answer the question. >> go to my facebook page. i'll read responses throughout the course of the program. will this be what led me to conclude -- and listen, here's the story in the print version of the times. you're making a great point which is to say the president in firing rosenstein now needs to rely on the failing new york times and on andy mccabe and mccabe's version of this was accord thing to new york times. there's a real conundrum. answer this question. will the president now fire rod rosenstein? up ahead the deadline is now 2:30 p.m. today.

will dr. christine blasey ford ever come to an agreement accusing brett kavanaugh of sexual assault and will this effect the woman's vote? >> why didn't she come out sooner if she's tell thing truth? >> tell me what boy hasn't done this in high school? tell me. >> we can't judge the character of a man based on what he did at 17. every household has its moments. sears makes it easy with kenmore. now get even more.

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slonly remfresh useseep one in ion-powered melatonin ht. to deliver up to 7 hours of sleep support. number one sleep doctor recommended remfresh -your nightly sleep companion. 2:30 p.m. today. that's chuck grassley's latest decision for lawyers for christine blasey ford to testify. it's reminiscent off a trial, only this one will be decided in the court of public opinion. sadly, many people, including senators are reaching conclusions without even hearing from the parties. the wall street journal poll found just 5% of democratic wem withen support kavanaugh. and 70% of republican women still do. what if this were a trial?

how might different individuals react to the evidence? i thought why not ask a jury consultant in what he would do in seeking a jury for this kind. and this is a little unfair to you, david, because you would first have a focus group, right? look at the issues. and then you would reach some conclusions. >> you do a whole lot of purchase group swz that could go on for a good long time. this is a whole lot easier, this case. >> how so? >> well with, anyone who is strongly pro trump or strongly pro choice, i don't care how credible or without credibility the two people testify, they've already made up their minds and that's not going to change them.

and the reverse is also true. if you're in the camp that's strongly antitrump or strongly -- did i say pro choice? strongly pro life, then it's a given that you will be in favor of judge kavanaugh. but if you're strongly pro choice and strongly antitrump, either of those two things, you've already made up your mind. you may not even know you have, but those two drivers are so strong that you'll not let yourself hear the other side with any credibility. not that you'll make a dishonest choice to yourself. you'll think you're being fair but both sides will hear differently. for the middle -- go ahead. >> whereby wai want to ask you

about gender. i think there's a pushception men will line up with kavanaugh and women with >> howmany of you believe judge cavanaugh? >> how can we believe the word of a woman when this guy has an impeccable reputation? >> there was maybe a touch. really? 36 years later she's still stuck on that? >> my experience as a trial lawyer shows there's truth in that in so far as women can be very circumspect of other women. >> there's no way to ever choose any jury on demographics. you've got to go into specifics.

a woman who is pro abortion needs kavanaugh on the court. a woman who thinks trump is wonderful is not going to make any decision against kavanaugh and that's true male or female. the numbers will vary by those for and against trump. particularly here. because abortion is probably the single most important issue driving the evangelicalses and it's also very important for people on the other side as is the trump thing all guyself. demographics has got nothing to do with hardly any case. >> i think you meant pro lie but i get the point. >> yes, i did. >> it comes down to the apportion issues and the views they hold relative to trump. and if you know that, you

probably know -- >> thanks, michael. apprec wrat the time. >> let's see what you're all saying. what have we got? they're going to crusify her and appoint brett kavanaugh anyway. i don't know where it ends up? i don't have an opinion. i don't know who's tell thing truth. i want to see them. from what i've read. i see two quality people. quality in so far as they're well credentialaled. led exemplerry lives apart from this incident. they're surrounded by people who love and respect and admire them. my suspicion is the same as professor dershowitz that they will make credible appearances and people will come to different conclusions. and that's why i'm trying to get straight in my own mind what is the standard by which wie should

judge them? his day gig today is pretty sniff can can't. a lot of law gets made in the supreme court. and does biden sflou to deal with with whether he has an anita hill problem? and could there be a worst week for bill cosby to be sentenced for his sexual assault conviction? will the #me too environment shake the judge's decision. dentn after party in my vegas suite? because hotels.com lets me do me. who wants to floss me? hotels.com. you do you and get rewarded.

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as joe biden considers whether to run in 2020, will he have an anita hill problem? it's brought back memories of

the 1990s conformation hearings of clarence thomas. thomas's conformation was nearly derailed by the late testimony of anita hill who said thomas had sexually harassed her when she worked for him in two government jobs. it was thomas who allowed to testify before and after her. and didn't allow any of the other women to testify on her behalf. the former vice president said this. >> my biggest regret was i didn't know how i could shut you off because you were a senator and i didn't -- you urattacking anita hill's character. what happened was she got victimized again during the process. >> how might biden's actions be viewed in the #me too movement who previously may not have been

aware of biden's role and a professor at george washington university. tell me what you do with your students in this regard? >> sure. the students are encountering this inside a women and politics course where we talk all semester about how do women gain entry and how seriously are they takeen inicide of instugzal politics and so we encounter hill inside of that framework and so we're watching the hearings in class to think about first and what the students notice is that they're encountering a joe biden that they are holy unfamiliar with. >> and so the impression of who they regard as obama's buddy is?

>> clueless i think is a major response from my students. when he asks her to tell the panel what was the most embarrassing of the incidents that she alleged occurred and then pushes her further after that to sort of suggest we can't really help you if you can't tell us in graphic detail what happened and if you can't tell us in judge thomas's own words what happened in these incidents. they view it as him asking her not only to relive her trauma but really questioning himself. questioning her credibility and sort of setting her up to fail in the hearings. >> i have that clip and i've seen it so many times this week,

which is what made me want to quickly speak with you. roll the tape. i want to ask you a question about it. >> can you tell the committee what was the most embarrassing of all the incidents that you have alleged? >> i think the one that was the most embarrassing was the discussion of pornography involving women with large breasts and engaged in variety of sex with different people or animals. that was the thing that embarrassed me the most and made me feel the most humiliated. >> it's uncomfortable to hear that these many years later but i'm not so sure that's joe biden's fault. it needs to come out. it's going to need come out this

coming week, right? someone needs to afford these women to tell their story in whatever graphic detail is appropriate. >> i think you're right. it needs to come out. i think the biggest mistake biden makes is where he pushes back on her because he feels she's not using graphic language that was probably used by thomas and suggestests if she can't use the exact graphic language, that her credibility is shot and what happens is that the inspector runs with that in the hearings later on. so i think what the difficulty is is giving the accuser not necessarily the been if the of the doubt but the unlt to

discuss what happened without suggesting that if you can't redpraul a televised audience, describe this in graphic detail in front of all of us, it probably didn't happen. >> and for the record i felt the same about senator specter, that he bore this undue burden. he was a former prosecutor who approached both hill and thomas in similar fashioni trying to gt to the bottom of it. thank you, professor. >> sure. thank you. >> i want to remind you to answer the survey question. smerconish.com. will the president fire rod rosenstein? former clerk for justice

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i'd say you can't make this up but somebody did. a series of tweets from a former supreme court clerk tried to blame another class mate of kavanaugh's for the assault. as you know he has said i c categorically and unequivocally deny this alfwagz. i did not do this back in high school or any time. and someone saying maybe dr. ford is just blame thing wrong guy. the source was shocking. a former clerk to justice antonin scalia. whalen, who's been involved in helpinged a vs cavanaugh. the federalist society has ben with a names and will havo about

a possible house where the assault could have taken place, the pressen tagsz was slick, sophisticated and he went so far as to provide the name off a class may mean mate and teammate of brett kavanaugh pfsz i couldn't believe he pointed a ficcer so specifically at a private season and said she knew them both and quote there's zero chance i would confuse them. and issues an apology i taegs in a way that identified the yorj town pep lawsuit. i realize that tuz not untew the mistake. joining me is seen wrr reporter who wrote this piece. ed wailen's tweets have created

a second kavanaugh scandal. he granl waited phi beta kapa and -- >> he's a deep political operative. he knows how to play it and all the players. most telling in my eyes, pee he was responsible for two supreme court justices. so he knows all of the people and according to peat schmidt, wailen was in the loop on the innerdetails of republican strategy there. it's difficult to imagine he didn't talk to anybody and there's been reporting he did. speak to at least one member of the senate judiciary committee. >> i thought of orn hatch who

told a colleague hof of mine maybe was this consider to be some kind of ace thing hole by the pro kavanaugh forces? >> it's not at all crazy theory. it's a major pr firm. back toin 2004 election and she tweeted people needed to watch his coming days. >> why would he sign post wailen's tweet? i don't want to sound like a conspiracy nut myself. i don't know anything on the inside. but i can tell you based on someone with the way things work withing d.c. this stinks.

>> i would with never compoubd the mistake that he made in this refward. the level of sfis kpagz. the floor plan of the house and the actual scare case, this was very methoughtically done. a very slick presentation. >> he's by all accounts a zbraer lawyer and operative. i don't want to make it seem like this is a fly by the seat of your pants information. and he's in a lot of trouble and he went to great lengths to expand on a really troubling and i think potentially libelous series. >> if in fact he said it's a case of mistaken identity.

i think that's a fair question should it all unfold. >> yes. because of potentially illegal action. that raises question about his judgment, smear a middle school teacher. that's not the quality you want. a sirt certain network ran with this stoory as they did put ting out there and i worry about how men ea amarpdens sawing if was some other guy because i saw the pictures. anyway, thank you for being here. >> thank you for having me. >> catherine, what are do we got? this is reprehenszable and did

kavanaugh go about this? if so, adios. >> i think he's made denials. but this is an entirely appropriate question to be asked this week and i hope they're not all getting ready for commercials but they get into good listeners. still tacome mafren frens inneemt and about to be sentenced for sexual assault. could there be a worst week for bill cosby to have his fate decided? >> looks like i picked the wrong week to quit smoking cigarettes. picked the wrang week to quit dining

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is technology with the power to change your life. life. to the fullest. . on monday in the midst of this kavanaugh controversy an 81-year-old legally blind man is due to be sentenced in a courtroom. bill cosby could get anywhere to 80 years for sexual assault. joining me now veteran defense attorn ea, william j. brennan. i imagine if you were representing him the, you wouldn't like what you're seeing on tv these days. >> you're madging correctly. the last thing i would want to see is this 24-hour news cycle. what

going? >> i'm not going to waste time, i'm going to tell you exactly what i expect. 7 and a half to 15 years. here's the breakdown. it is in the middle of the guidelines, the maximums very few get. if you shoot a dart in the middle of the guidelines, 30 months. 30 if he stacks them for all three counts is seven and a half as a minimum, seven and a half to 15. michael, you have to remember, this is the same judge that

sentenced a local lauwyer on similar charges to 10 to 30 years in prison. >> so the fact this is all in the public limelight and it will be a courtroom i imagine full of cosby victims must weigh on the judge as well as he looks out during the course of the proceedings. >> it does, but i think this judge, judge o'neal, who has been through this case now twice and is a seasoned judge, i think he will be able to steel himself to pressure. when he saw the documents, ruled against additional aaccusers testifying. the five that testified at trial can come in. that's going to be district attorney steel's argument. although he is only facing conviction and sentencing on miss constand, it is going to

weigh heavily on sentence. >> obviously there will be an appeal. what does it mean in terms of cosby's freedom at the end of the day monday? >> his defense lawyers will immediately file for bail, pending appeal. first you go to the trial judge, judge o'neal. you have to show there's some type of viable appellate issue. the likelihood is low because o'neal would look at probably the uncharged misconduct rule or self-incrimination ruling, deposition testimony, and in essence if he says yeah, looks like you have a good appellate issue, he is second guessing himself. i predict they will not meet with success there. but they may meet with success in the superior court. when we tried the catholic church case, the co-defendant to father brennan was successful on the exact same issue.

he didn't ask for bail but got a new trial because the trial judge in the priest case allowed uncharged misconduct evidence and the higher court says it was too prejudicial. he was not successful getting bail on that issue. >> bottom line, what's the image we're seeing monday night on television? >> i believe that you will see dr. huxtable, william cosby, out the side door on his way to state prison, and i believe he will be in a pennsylvania issued jump suit by monday night. >> bill brennan, thank you for being here. >> thank you, michael. still to come. best and worst tweets and facebook comments and the results. have you voted yet at smerconish.com. will the president now fire rod rosenstein? go do it. (vo) this is not a video game.

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time to see how you responded to the survey question. will the president fire rod rosenstein? survey says with 7469 votes, close. 51% say no. 49% say yes. here's the answer. if the president thinks mueller has something devastating and uses this opportunity to clean house, get rid of sessions and rosenstein and mueller, otherwise he leaves them around to provide fodder so when a

damning report comes out from mueller, he gets to say the whole thing is rigged. after all, this guy wanted to wear a wire on me. what's come in, catherine. smerconish, if he fires him, nothing will happen. the republicans will do nothing. on another note and story, is mccabe anonymous? i don't think so. i thought you were going to ask a different question. is rosenstein the anonymous source for "new york times." what else? your bias is so prevalent that you are blienlded. have you looked into the deshl death threats that mrs. kavanaugh has received, she's a woman. fake news. hey fawn, you've just exhibited your bias. that tweet should say what a shame that both of these individuals and we don't know which one is telling the truth, what a shame both of them are subject now to all of this ridicule, scorn, and death

threats online. i note you only point out she's the victim of that. i don't know what to believe yet. keep an open mind. one more quickly. you are carrying trump's water also, michael smerconish. carrying his water, yet out to do him in. thank you for watching. see you next week. good morning, everyone. it is saturday, september 22nd. i am diane gallagher in for christi paul. >> i am victor blackwell. you're in the cnn news room. following two huge political stories this hour. deputy attorney general rod rosenstein is on the defensive, denying he suggested wearing a wire to record conversations with president trump, or that he wanted to recruit cabinet members to remove him from office. >> meantime, the woman accusing the supreme court nominee brett kavanaugh of sexual assault has until 2:30 today to decide if she will testify before t