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SMERCONISH

Flynn: Good Dirt Or Good Lawyer?; Is Internet Privacy Dead?; Corby's Fly Problem; President Takes On Freedom Caucus; Nunes Denies WH Gave Him Intel; Prosecutor: Use Cosby Joke, Memoir As Evidence; Need Some Privacy?; Rachel Dolezal's Journey to "Trans-Black"Ness. Aired 9-10a ET

Aired April 1, 2017 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[09:00:00] MICHAEL SMERCONISH, CNN HOST: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. This week President Trump went after the Freedom Caucus and threatened to take down its members, but are they actually more politically secure than he is? And might this be a precursor to his working with democrats? Then, before testifying to the intelligence committee about Russia, General Michael Flynn wants immunity. Is that a sign that he has real dirt to dish, or just a good lawyer?

Plus, there were many headlines this week about how the GOP sold out our internet privacy rights. But were they accurate? Or will the move just preserve the status quo? And should prosecutors in the Bill Cosby assault case be allowed to introduce into evidence this exchange with Larry King about an aphrodisiac?

(BEGIN VIDEO CLIP)

BILL COSBY, ACTOR AND COMEDIAN: There's a little thing about Spanish fly, if you took a little drop - no, it was on the head of a pin --

LARRY KING, CNN LARRY KING LIVE HOST: Pin.

COSBY: Pin.

KING: That's right. Drop it in her Coca-Cola, doesn't matter.

COSBY: It does make it - and the girl would drink it and --

KING: And she's yours.

COSBY: -- hello America.

(END VIDEO CLIP)

SMERCONISH: Plus, when she was outed for being white, she lost her position at the NAACP. Now Rachel Dolezal has written a memoir to tell a story she thinks you never heard. She's here to make the case she is transblack. But first, the president tweeted about many things this week, the "failing New York Times," calling Michael Flynn's situation a witch hunt. Hedging his trade policy with China, and his animosity toward the conservative congressional block known as the Freedom Caucus. "The Freedom Caucus will hurt the entire republican agenda if they don't get on the team and fast. We must fight them and democrats in 2018." When he asked where they were in the healthcare battle, the Freedom Caucus responded saying, @realDonaldTrump, we were where we've always been, committing to keeping our promise. Repeal includes eliminating the costly Obamacare rigs that are driving up Americans premiums. We can do better than a plan that only 17 percent of Americans support. #keepourpromise.

Does the president have the power to fight them in 2018? In November's election, the Freedom Caucus members won by bigger margins than Trump in their districts just as they outpaced Mitt Romney in 2012. Last week I had on this program David Daley, he wrote that book Ratf'ed. And he showed how the GOP has redrawn congressional maps in such a way that they have locked certain seats until the next senses.

As Daley wrote in The Washington Post this week, the 40 members of the Freedom Caucus represent such safe republican districts that the only threat they fear is a primary challenge from a conservative further to their right. Republican redistricting guaranteed the GOP a near lock on the house after the 2010 census, but it also created a nearly ungovernable caucus. They gerrymandered themselves into this predicament. And there's one more consideration.

Might the president be seeking to distance himself from the Freedom Caucus as a precursor to reaching across the aisle to work with democrats on things like infrastructure? That Freedom Caucus roster includes my next guest, Alabama Congressman Mo Brooks. Congressman, first, thank you for being here. Second, what of my thesis -

MO BROOKS, FREEDOM CAUCUS MEMBER: My pleasure.

SMERCONISH: - that you are actually more secure politically speaking than President Trump?

BROOKS: Well, I don't know that any of us are secure in this day and age. Everything is up to the voters. And we know what the past is, but the future is yet to be written. Time will tell whether the people in my district and the people in the other 435 congressional districts are comfortable with where their congressman is. We've got a lot of challenging issues. Certainly, healthcare is one of them. That's divisive. I'm going to welcome any challenge that may come forth in 2018 much like I have in past elections. So far those challengers have not fared very well.

SMERCONISH: Well, that's an understatement. I mean, in 2012, let me put data up on the screen. This was in the 2012 election Obama had been re-elected by four points over Mitt Romney, the republicans -- the Freedom Caucus republicans represented districts that Romney carried by an average of 23 points. The house members of the Freedom Caucus did even better than that, they were elected by an average of 34 points. None of you face any pressure to ever compromise. Isn't that the reality?

BROOKS: No. I don't think there's pressure not to compromise. There's a desire to compromise, but let's please understand what the Freedom Caucus members consistent of. By and large, they're fairly intellectual. They love the nuances of public policy and trying to determine the cascading effects of the policies that we promulgate in so much as they affect average Americans.

[09:05:02] Second, we're principle based, which means we've got backbone to stand behind our ideology. And most important, the things we advocate are the basic principles, the foundation principles that have made America a great nation. It's very difficult for someone to challenge us on those types of issues. And with healthcare in particular, which seems to have raised the ire of president Trump, I'm sorry but he's trying to advocate a position that is favorable to 17 percent of the American people.

He's trying to advocate a position that quite frankly is a very difficult one to support from a policy standpoint. Who wants to challenge say me and my congressional district by arguing that we should have gone for 15 to 20 percent higher insurance premiums over the next two years on the people I represent? I'm not very confident that very many citizens in my district want to vote for a challenge when the principle argument is they want to raise health insurance rates even more than Obamacare would.

SMERCONISH: Do you see now an opportunity where the president -- and this is an additional part of my opening thesis, has laid a predicate. He's drawn a line in the sand with the Freedom Caucus. He's painted at the 40 or so of you and blamed you for last week's failure as a precursor to now reach across the aisle and work with democrats. Where would that leave the Freedom Caucus?

BROOKS: Well, first, let me hit your premise there. We're not being blamed for a failure. We - we're being given credit for a success. And I'll claim that credit readily. We were able to defeat a bad piece of legislation that was going to hurt the American people in a number of different ways. Quite frankly, this American healthcare act or Ryancare, whatever you want to call it, it's indefensible and the American people are starting to understand it. The more they understand it they dislike it.

So, I'm quite comfortable there. Now, is the president going to reach across the aisle and interact with democrats? Well, I would hope so. No, whether he's going to be able to do that successfully, I don't know. I have yet to meet a democrat on the house floor that wants to get within 10 feet of President Donald Trump because of the adverse effect that may have on their ability to get re-elected. So perhaps he can successfully reach across the aisle. I always encourage that, whether he can be successful is yet to be seen.

SMERCONISH: Congressman, I want you to respond to the perception that many hold of the Freedom Caucus as being intransigent, abstinent. And I'm going to do it through the words of republican Adam Kinzinger who wrote an essay for the New York Times this weekend, said the following. "It's what they do, they move the goal posts. And once that happens they still refuse to play. We are the Charlie Brown party hoping that this time things will be different, but time and again the Freedom Caucus is Lucy pulling the ball out from under us, letting us take the fall and smiling to themselves for making a big splash. It's a cheap tactic, not a way to govern. And enough is enough." Respond to Congressman Kinzinger.

BROOKS: Well, sure, I like Adam personally, but quite frankly he doesn't have a clue what he's talking about in this particular instance. As far as I'm aware he was not personally involved in any of the negotiations between the Freedom Caucus and the house leadership or the Trump administration. But there are a couple basic principles you have to recognize aside from the nature of who we are, that we are principled individuals fighting for the values that made America a great nation.

One thing is we have to have an 80 percent agreement within the House Freedom Caucus before we support or oppose a particular public policy position that's been advocated somewhere out in White House land or congress land. But second, even if we do endorse a particular position, that does not bind any Freedom Caucus member to vote any particular way. Freedom, that's the name that we go by. We are permitted under our rules to vote as we believe is best for our country.

We don't have to follow the dictates of house leadership or the White House or even the Freedom Caucus. We each make up our own minds. And on this particular issue, the healthcare bill, we had a split about 60 percent of us were opposed, about 40 percent were supportive. What I'm getting at here is it makes it difficult to try to negotiate with the Freedom Caucus as a group because we don't deliver votes as a group. Because we're not bound to do things that we believe are contrary to the best interests of our country.

That also makes it very difficult for special interest groups to buy our votes. You've seen campaign contributions over the years influence politicians in a major way. And I'm proud that the Freedom Caucus stands independent and separate and apart from that kind of temptation. And that makes it difficult for special interest groups to be able to buy us, it makes it difficult for powers at be to be able to bully us or name calling us into doing things that are wrong.

So I wish we had more congressmen and more senators in Washington, D.C. whose first and primary focus is on doing what is in the best interest of our country. Healthcare this time. Next time border security by way of example we'll be on the White House's side on that. We can go down a long list of issues and we're going to have agreements and disagreements with everybody at some point in time or another.

[09:10:04] SMERCONISH: I'm appreciative of you being here. I'm someone for whom the new C-word is not compromise. I like compromise. I want people to reach across the aisle and get things done. Thank you, Congressman Brooks, I appreciate you being here.

BROOKS: We have offered to compromise in many different ways. Certainly. Thank you.

SMERCONISH: Well, thank you, sir, for being here. I appreciate it. Now for the latest on the Russian hack investigation. All sides are reading into the latest developments regarding Lieutenant General Michael Flynn with their hoped for outcome to which I say curb your enthusiasm. I refer to the story broken Thursday night by The Wall Street Journal that Flynn stands willing to testify to the Intel Committee in return for a grant of immunity.

Sure, it could be huge news. Or it might just be good lawyering. And we really don't know which. He certainly might have the information on the critical issue of whether there was any aiding and abetting by anybody associated with the Trump campaign of an illegal hack of the DNC by Russia or anyone else. That seems unlikely to me since he was the campaign's national security advisor and not a political operative. Alternatively, Flynn may want to protect himself on matters of less national consequence like whether he violated the Logan Act by meeting with the Russian Ambassador or made full disclosure of his foreign income before becoming national security advisor.

Either way, were I his attorney and he were to go before a congressional committee, I too would want my client to be granted immunity. That would lessen his legal exposure though certainly causing him political embarrassment in light of his prior comments about immunity. Because there is one thing for which Flynn is guilty, hypocrisy. You remember this?

(BEGIN VIDEO CLIP)

GEN. MICHAEL FLYNN, FORMER NSA DIRECTOR: The very last thing that John Podesta just said is no individual too big to jail, that should include people like Hillary Clinton. I mean, five people around her have had - have been given immunity to include her former chief of staff. When you are given immunity, that means you've probably committed a crime.

(END VIDEO CLIP)

SMERCONISH: The president Friday tweeted, Mike Flynn should ask for immunity in that this is a witch hunt. Excuse for big election loss by media and dems of historic proportion. Well, I don't think that it's a witch hunt. I think there are valid questions that need to be asked and answered, but Flynn saying he won't testify without a grant of immunity that alone really doesn't tell us anything. For more on this story, joining me now the national correspondent for security for the New York Times is Matthew Rosenberg. OK, Matthew, it's March 21st and Congressman Devin Nunes is in an Uber. And he gets a phone call. And what happens that causes him to divert to the White House?

MATTHEW ROSENBERG, NATIONAL SECURITY CORRESPONDENT, THE NEW YORK TIMES: So he gets this phone call from a source that he after the fact won't tell anyone who it is. He hops into the Uber, he's in there with a staff member, runs to the White House and he sees a bunch of intelligence. Now, he comes out the next day and says, you know, I was shown this intelligence by a source, being very mysterious about who this source is, and the intelligence he says shows that there was what's called incidental surveillance of Trump -- Mr. Trump himself maybe and Trump Associates during the transition.

Now, incidental surveillance is when two foreign officials who were under surveillance by American spy agencies or are picked up say talking about an American or an American calls, one of these officials and it is picked up. So it's not the Americans being surveilled. It's the foreigners and the Americans are kind of swept up in it. But Nunes makes this into a big thing. You know, I can tell the identities from this. This is the real scandal. He suggests his sources are whistleblowers somehow and needs to protect them. And it turns out as we figured out this week, his sources came from the White House.

He hopped out of the car, he ran to the White House, he was given a bunch of information. He then went out the next day, briefed the press, went straight back to the White House to brief the president on information he'd found out from officials at the White House. It's this bizarre kind of theater or drama, whatever you will, that kind of has become this ginormous -- giant distraction. In a month in which - well, let's remember this month began with Jeff Sessions recusing himself.

That was - that was less than a month ago. Trump surveillance tweets, the director of the FBI saying in front of congress there is an ongoing espionage investigation involving the White House. Revelations Jared Kushner met with a Russian banker in December. And yet here we are and then ended with Michael Flynn asking for immunity and here we are wondering where Devin Nunes got a bunch of intelligence that we don't know is consequential.

SMERCONISH: I want to drill -- I want to drill down on this - on this reporting. Because you then -- put the headline up, you broke this story big in The New York Times front page above the fold on Thursday. There it is. Last night Congressman Nunes back in Fresno in his district with KGPE and KSEE sat down for an interview. Listen to what he said about your reporting.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: New York Times just came out with an article naming a couple people who work there at the White House, saw Fox News said they independently confirmed that. Are you able to independently confirm that as well saying that was true or a false report?

[09:15:09] DEVIN NUNES, HOUSE INTELLIGENCE COMMITTEE CHAIRMAN: Yes. You understand we're not going to get into sources and methods. I mean, it's -- if not, who's going to come to our committee, but I can tell you those reports are mostly wrong.

(END VIDEO CLIP)

SMERCONISH: So he says your reportage was mostly false. How secure are you and the times in what you reported about him having two sources in the White House after the Uber ride?

ROSENBERG: We're confident. We're extremely confident in this. I don't want to --

SMERCONISH: So congressman --

ROSENBERG: I don't know what else to say at this point. SMERCONISH: Congressman Adam Schiff went to the White House last

night. What can you tell us about what he gleaned in terms of information about this issue?

ROSENBERG: He seemed to think that what he saw was no big - that what he saw was not how it was portrayed. Now, Congressman Schiff, he's the top democrat on the House Intelligence Committee, is not one to go out and talk about classified information. So it's hard to tell exactly what was seen. What we'd heard is that the reports that Representative Nunes saw were mostly foreign officials and not necessarily Russians, but of many different countries, during the transition, talking to each other about ways they were trying to get to know people on the Trump team, which is perfectly normal.

And now the way intelligence reporting works is that those when reports about those intercepts were say distributed among the various small group of officials allowed to see this kind of stuff, the names are kind of masked. The details to which you can identify individuals are supposed to be blanked out or covered up. However, there are some people who are very hard to mask. You know, and often you can tell through the context who is being spoken about.

You know, you would think that these reports were everywhere the way this has been portrayed. These reports were seen by a handful of people, maybe a dozen, maybe two. I don't know the numbers. But it's an incredibly small circle of people who are allowed to see this information.

SMERCONISH: Matthew, thank you so much for your reportage and for being here. I appreciate it.

ROSENBERG: Thank you.

SMERCONISH: What are your thoughts? Tweet me @smerconish or go to my Facebook page, my Facebook age and I will read some throughout the program. Catherine, what do you got? Hit me with something. Smerconish, if someone is innocent, why would they need immunity? Well, interestingly it was the president who said that those who seek a grant of immunity are guilty of something. Frankly, if you're - if you're representing a client going before a congressional committee in this environment, sure, why not take immunity? I think it could be good lawyering, not necessarily a sign of something nefarious.

Still to come, Bill Cosby once told Larry King a story about using an aphrodisiac called Spanish fly. And now prosecutors trying him for sexual assault want to use that clip as evidence. Do they have a case? And, the headlines all suggested that this was the week that your internet privacy ended. But is there another side to this? The former head of the federal trade commission is here to way in.

(COMMERCIAL BREAK)

[09:22:18] SMERCONISH: Comedian Bill Cosby's upcoming trial on sexual assault charges returned to the news this week when on Thursday prosecutors asked to admit video of a comment he made to Larry King in 1991 pertaining to a book that Cosby wrote called Childhood. Montgomery County District Attorney Kevin Steele described the interview and chapter in court papers as, "powerful and damaging admissions that support the assertion that Cosby was comfortable using drugs to overcome women." Take a listen.

(BEGIN VIDEO CLIP)

COSBY: There's a thing about Spanish Fly. Do you know anything about Spanish Fly?

KING: When we were kids we used to-

COSBY: There you go. There you go. That's all. I just wanted the recognition.

KING: Yes.

COSBY: Spanish Fly.

KING: We knew what it was.

COSBY: Spanish Fly was the thing that all boys from age 11 on up to death -- We will still be searching for Spanish Fly.

KING: That's right.

COSBY: And what was the old- The old story was, if you took a little drop -- It was on the head of a-

KING: Pin.

COSBY: -pin! And you put it in a drink-

KING: That's right. Drop it in her Coca-Cola -- it don't matter.

COSBY: It doesn't make any difference. And the girl would drink it and -

KING: And she's yours.

COSBY: -- Hello, America.

END VIDEO CLIP)

SMERCONISH: Was that a joke or potential evidence of a prior bad act, which the jury should hear? Cosby's trial is scheduled in June. He's described his encounter with his accuser, Andrea Constand, as consensual and has claimed the pill he administered to her that night was an over-the-counter allergy medicine. Joining me now, Veteran Philadelphia Criminal Defense Attorney, William J. Brennan. Bill, what would be the impact if a jury were to see that Larry King video?

WILLIAM J. BRENNAN, PHILADELPHIA CRIMINAL DEFENSE ATTORNEY: Well, it's hard to predict but it's certainly wouldn't be pleasant for the defense. If the commonwealth is successful in entering this decades old comedic routine from Mr. Cosby's body of work and somehow extrapolating that as a prognosticator for what he's accused of doing now, they could show a pattern, they could say it's his M.O. if you will. And it would be damaging.

SMERCONISH: OK. You're showing your stripes as a defense attorney. Which is fine. That's why you're here. You say decades old comedic routine. The prosecutor says, wait a minute, this has been the guy's M.O. since he was a kid. In fact, let me show you the book, this is the book he was promoting with Larry King. Put that up on the screen. And in the book, there's discussion of Fat Albert. Can we show that? Cosby wrote, "Spanish fly, an aphrodisiac so potent it could have made Lena Horne surrender to fat Albert. And there's more. My style perhaps could have been smoother, but this, after all, was the first aphrodisiac I ever had pushed. Bill, he's always been like this.

[09:25:09] BRENNAN: That's going to be the prosecution's argument. And that will be in the court of public opinion that will certainly be the water cooler discussion. But, Michael, the man is not a neurosurgeon. The man is not an electrical engineer. The man is a janitor, he's a comedian. And this was part of his body of work 30 years ago. The book may be a little different, I think you could argue it's autobiographical, but if he's - if he's talking about his thoughts as prepubescent boy and getting a Lena Horne, you know, one of the major stars of the 20th century to fall victims to his (INAUDIBLE) his adolescent fantasies, it just - it just seems so insanely remote to me, but I commend the prosecution for taking the shot. Mike, they had to be high-fiving themselves when they came across this stuff. They had to take the shot.

SMERCONISH: Well, you know that in today's Philadelphia inquirer, and I could put this on the screen as well, there's a report of a motion filed by Defense Attorney Brian McMonagle yesterday. You explain it, Bill, what is he saying he will do if that video comes in?

BRENNAN: Brian McMonagle, by the way, is one of the finest defense lawyers in this country. Brian filed a motion that said, come on, the guy is a comedian. This was a comedic routine from a massive body of work from pre-Reagan era where he did a - he did a stick, a bit if you will, and it happened to be on the same subject of what these charges are. Brian said, if the prosecution can't realize that this is humor, I want to hire an expert to tell the jury the difference between humor and reality.

I want a non-humor expert, if you will. So I mean, it's really - it's getting somewhat bizarre. But I think Brian McMonagle and the defense team has to build every wall they can around uncharged misconduct evidence. And, you know, this whole concept of prior bad acts and uncharged misconduct, evidence, lawyers call 404B stuff in Pennsylvania, but this is a side door way of attacking the client when your evidence may not be as strong as you'd like it to be.

SMERCONISH: The Spanish Fly prosecution. I can see those headlines this coming June when this case gets underway. Bill Brennan, thank you as always. We appreciate it.

BRENNAN: Thank you, Michael.

SMERCONISH: Up ahead, there was widespread outrage this week after congress revoked rules that prevented internet providers from selling information learned from your browsing. But did the media get it right? I'm about to ask the former head of the FTC. And, she made headlines in 2015 when she was exposed as a white woman pretending to be black. Rachel Dolezal will join me to explain herself.

(COMMERCIAL BREAK)

[09:32:21] MICHAEL SMERCONISH, CNN ANCHOR: To read the headlines this week, you'd think your Internet privacy just ended. That was the widespread reaction after the House voted for a GOP bill to undo privacy protections initiated on President Obama's watch.

Massachusetts Congressman Capuano, he was particularly vocal.

(BEGIN VIDEO CLIP)

REP. MICHAEL CAPUANO (D), MASSACHUSETTS: What the heck are you thinking? What is in your mind? Why would you want to give out any of your personal information to a faceless corporation for the sole purpose of them selling it? Give me one good reason.

Just last week I bought underwear on the internet. Why should you know what size I take? Or the color, or any of that information?

(END VIDEO CLIP)

SMERCONISH: At my own website, when I asked whether people supported the move, more than 3,000 quickly voted, 96 percent said no. And I was among them.

But now, I'm wondering if my concern, many of our concerns was justified.

Joining me now, President Obama's head of the Federal Trade Commission, Jon Leibowitz. He's a partner at Davis and Polk. He's also got a dog in this fight. He chairs the 21st Century Privacy Coalition, a group of broadband providers that support privacy protections for consumers and opposes the FCC rule.

John, help me. This is very confusing.

Here's how I would distill it. This all came about because the FTC, which you used to run, lost jurisdiction to regulate Internet service providers, the FCC steps in and creates a situation where Google and Facebook will be treated differently under one set of rules than Internet service providers under an alternative set of rules.

How am I doing so far?

JON LEIBOWITZ, CO-CHAIR, 21ST CENTURY PRIVACY COALITION: You're doing really well. That's exactly what happened when the FCC invoked Title 2 as a way to ensure net neutrality. They could have done it in different ways, but by invoking Title 2, they took jurisdiction away from my former agency, the FTC.

SMERCONISH: OK. So, "The Washington Post" had this encapsulation. Put it up on the screen in terms of what the rules would have done. Under the rules, Internet providers must get your explicit permission to share or sell things such as your geolocation information, your health information, your children's information, your financial information, et cetera, et cetera, et cetera.

To me that sounds like a good thing, yes, you should have to get my explicit permission. What's wrong with that?

LEIBOWITZ: Well, I think as a theory there's nothing wrong with that. I think in terms of the way that the FCC effectuated its privacy proposal or tried to, it's deeply flawed.

[09:35:08] So, let me take you through the facts. So, one fact is that for 20 years, the FTC had oversight over the entire Internet ecosystem including broadband providers. And broadband providers were not selling personal information. In fact, they've all made commitments not to sell that personal information. We wrote a privacy report in 2012 where they committed to the FTC not to mine data content, some of them did.

And so, the truth is if they don't honor their commitments, that's a violation under the existing statute and probably under the existing FCC statute. So protecting privacy as you heard from Congressman Capuano is important. It's important to all of us. But the way in which the FCC tried to do it was deeply flawed.

In fact, my former agency, the FTC, wrote a comment and at that time, it was two Democrats and one Republican. It was a unanimous comment. And it identified 27 separate flaws in the FCC's draft proposal. And it called the proposal not optimal. Not optimal --

SMERCONISH: OK.

LEIBOWITZ: -- is Washington speak for not good.

SMERCONISH: Another issue.

LEIBOWITZ: Yes.

SMERCONISH: I think the reaction of many watching the events superficially this week is to think that they just lost a boatload of privacy protections. Is it more accurate to say the status quo will continue?

LEIBOWITZ: Yes, it is more accurate to say the status quo will continue. But, you know, Washington as we all know is hyper-partisan these days and privacy issues which should be nonpartisan and were nonpartisan at the FTC have become even more partisan. There's a lot of sky is falling hyperbole. There's a little bit of privacy McCarthyism going on.

And it would be great if people could sort of cut through the fact -- cut through this fact-free environment and talk about the real issues.

SMERCONISH: You ran the FTC under President Obama. Tom Wheeler ran the FCC under Obama. He wrote a very strong essay this week for the "New York Times." Put it up on the screen. "The bill not only gives cable companies and wireless providers free

reign to do what they like with your browsing history, shopping habits, your location and other information gleaned from your online activity, but it would also prevent the FCC from ever again establishing similar consumer privacy protections."

Why in your view is he wrong?

LEIBOWITZ: Well, I think he's wrong because first of all, if the CRA, the Congressional Review Act, is signed into law, then the FCC could write another rule. It just has to be written differently. And we think it could be written in a much smarter way.

The second thing is, and this was one of the fundamental flaws, I think, in the FCC approach. It only applies to broadband providers. It doesn't apply to all the other collectors of information on the Internet including Google and Facebook and others. And it was in fact in 2012, President Obama put out a privacy Bill of Rights, the administration put out a privacy Bill of Rights in which it called for the FTC to be the sole privacy enforcer across the internet ecosystem.

And it did that because it recognizes that internet privacy should be technology neutral. It's not about who's collecting the data, Michael. It's about what data is being collected and how it's being used. And I think that's fundamentally at the core of why we believe that the approach of the FCC is wrong. If Congress wants to do privacy protections across the board, of course, it should be able to do that. But you shouldn't just regulate a sector of the economy and --

SMERCONISH: Let me say it more simply.

LEIBOWITZ: Go ahead. Sure.

SMERCONISH: From my perspective, internet service providers and those massive search engines, like Google or Facebook, which I think know more information about me than my browser, I would like to see them all treated in similar fashion.

Here's final word, this is a more confusing issue than I first believe, and for those saw the headlines, it said, holy smokes, I just lost a bunch of rights, I recommend they read-in.

Jon, thank you for being here.

LEIBOWITZ: Thank you so much, Michael.

SMERCONISH: Let's check in on my -- speaking of social media and all things internet -- let's check in on my Facebook and Twitter accounts.

"Smerconish, Internet privacy is an oxymoron. Simple as that."

You know, Boomer, you might be right. When you go online, in some respects and I love it, but you take your life in your hands.

Another one, Catharine (ph)? Or are we done with one? That's it? OK. Up next, a polarizing figure in American racial politics. In

2015, Rachel Dolezal was outed as a white woman who'd been representing herself as black.

[09:40:05] She thinks America misunderstood, has written a memoir and is here to explain.

(COMMERCIAL BREAK)

SMERCONISH: Surely you remember Rachel Dolezal. She had her 15 minutes of fame and then some two years ago. The NAACP leader from Spokane, Washington, made international headlines in 2015 after she was outed by her own parents as a white woman he regarded herself as black. She caught flak from blacks and whites and quickly lost her NAACP position.

Dolezal believes she was misunderstood and has re-emerged with a memoir. It's entitled "In Full Color: Finding My Place in a Black and White World".

And Rachel Dolezal joins me now.

Rachel, I learned a lot in the book. Mostly I learned that for those who believe two years ago, hey, here's a woman who turns, who knows, 30 years old and decides she wants to be black so that she can get a high paying gig at the NAACP and then gets outed.

[09:45:03] Well, they were wrong. It's a much more complicated story. Let me share with my audience some of what I learned about you from the book.

I learned that as a child at age 4 -- put this up on the screen -- when you were asked to sketch yourself, you sketched yourself as a black child. You fantasized that you were from Africa. When Aunt Becky wanted to get you a Raggedy Ann or Andy doll, you finish the story, what kind of doll did Aunt Becky get you?

RACHEL DOLEZAL, AUTHOR, "IN FULL COLOR: FINDING MY PLACE IN A BLACK AND WHITE WORLD": Well, she actually made me a black Raggedy Ann and Andy doll.

SMERCONISH: How come?

DOLEZAL: Well, because she kind of recognized and seemed to understand my affinity for black is beautiful and black is inspirational.

SMERCONISH: You went to Howard University for your masters. You were raised with four adopted black siblings. You braided their hair. You married a black guy.

I was thinking Caitlyn Jenner as I was reading the book. Is there an analogous situation here?

DOLEZAL: Well, I think a lot of people have drawn that parallel. And I want to be careful because certainly every category of our identity is, you know, with its own unique circumstances and challenges. But for sure, there is some similarity in terms of harmonizing the outer appearance with the inner feeling. In terms of, you know, stigmatized identities, some people will forever see me as my birth category and nothing further. And the same with Caitlyn.

SMERCONISH: Have you ever financially benefitted from regarding yourself as black, including in the job at the NAACP?

DOLEZAL: No. And the position at the NAACP was entirely unpaid.

SMERCONISH: You were outed in 2015, a local reporter from Spokane, Washington, raises a question with you at the end of a 20-minute interview. In the book, you say you regret the way in which you answered the question.

I'm about to give you a second chance. Let's first remind people of what occurred.

(BEGIN VIDEO CLIP)

REPORTER: Are you African-American?

DOLEZAL: I don't understand the question.

(END VIDEO CLIP)

SMERCONISH: How should you have answered that question? I'll give you a mulligan. What should you have said?

DOLEZAL: Well, if I would have had time to really, you know, discuss my identity, I probably would have described a more complex label, Pan African, pro black, bisexual mother artist, activist.

But I think the question, "Are you African-American?" -- I haven't identified as African-American. I've identified as black. And black is a culture, a philosophy, a political and social view. I believe that race is a social construct.

And so, you know, I felt like in that interview I didn't have time to unpack all of that. But, you know, it became clear very quickly that people did want to unpack those more complex definitions, terms and even my personal identity. People wanted to hear everything.

And so, I wrote "In Full Color", my memoir, as just, you know, the whole story, the whole truth -- everything from birth to the present.

SMERCONISH: You seem to have offended everybody two years ago. In the book, you say this, "Out of the thousands of e-mails and hundreds of text messages I received after my story went viral, half were from extremely pissed off white people who were outraged by the thought that someone born white would ever choose to be black. The other half of the messages were from extremely pissed off black people accused me of appropriating black culture in the same way that white rappers like Eminem and Iggy Azalea had done so."

Has that changed in the last two years? Have you become more accepted by one side or the other? Or do those hostilities persist?

DOLEZAL: Well, I still hear some love and hate from both sides, for sure. But I think that people after a couple years have taken a little more time to show love and support. And those who are going to hate -- you know, I mean, they have their minds made up. Maybe they'll never read the book. I hope they do.

But, you know, I still do hear from people -- and I also hear from individuals who, you know, aren't just reaching out to support my identity or the positions that I've taken on racial and social justice, but who want to share their own stories of some sense of like a plural identity.

SMERCONISH: Rachel Dolezal, thanks for being here. Good luck with the book.

DOLEZAL: Thank you so much.

SMERCONISH: Still to come, your best and worst tweets. Hit me, Catherine, what do you got?

"Smerconish, what's the difference between Rachel identifying with being black and transgenders identifying with being another sex?"

Well, Gwendolyn, that's what I thought as I was reading the book.

[19:50:01] I mean, Look, the impression I had two years ago is that this was some kind of a race hustle. That she was regarding herself as being black so as to get a good gig and earn a good paycheck. And what did I learn? That she's always regarded herself this way and she wasn't getting paid anything by the NAACP, so it opened my eyes in that respect.

(COMMERCIAL BREAK)

SMERCONISH: So, TC, my radio producer in Philly who's the first person to see all the tweets says, "Man, are they hateful this week?" Are they? Let's see.

Tracy, "Smerconish, not that I defend Crosby, but the timeline is similar to the Trump access Hollywood tape. In all fairness, why dig up ancient history?"

Well, Tracy, if it were a one and done, then I don't think it would come into evidence, but the prosecutors will say it's his M.O. There's a whole pattern here and they'll say it goes back to when he was a kid playing around with Spanish fly.

[09:55:03] I always thought there was no such thing as Spanish fly.

Hit me with another one. What do we got? What a show, huh?

"Flynn just might blow Hillary and Obama out of the water. Ever thought about that?"

Gary, you mean he would have incriminating evidence on each? I don't know. I think there's a Logan Act issue here and he didn't fully disclose his foreign income, just my opinion. And that his lawyer is trying to protect him. I'd be floored if he came in and dropped the dime on the president.

Hit me with another tweet.

"Smerconish, has there been any evidence shown with any connection with Russia and the Trump campaign? If no, why is this still a topic?"

Keep'n it real, because there's a lot of circumstantial evidence and, frankly, I want to hear these witnesses under oath in front of a congressional committee. And then, I'll tell you. If there's nothing, then we'll move on. But the questions are serious and I don't like how it's become such a partisan issue. It used to be that we were at least united against a foreign enemy, like Russia.

Keep tweeting me. Hit my Facebook page. I'll see you next week.