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SMERCONISH

President Trump Tweets Federal Judge Halting Travel Ban Means "Big Trouble"; 48 College Heads Write President Trump a Protest Letter and Eight Institutions Have Joined a Lawsuit to End It; Is President Trump Throwing a Bone to Evangelicals by Vowing to Destroy the Johnson Amendment Because Ivanka and Jared Kushner Dialed Him Back on Anti- LGBT Stance?; Is the Super Bowl Getting Political. Aired 9-10a ET

Aired February 4, 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, SMERCONISH: I'm Michael Smerconish, coming to you from Philadelphia. We welcome our viewers in the United States and around the world. Last night, a federal judge in Seattle halted the refugee travel ban nationwide. President Trump already tweeting that this means "big trouble." Where does this leave them and where does it leave us?

The ban was already sparking campus outrage not just from students, but from presidents as 48 college heads wrote President Trump a protest letter and eight institutions joined a lawsuit to end it.

And is the reason the president promised to destroy the rule preventing non-profits, including churches, from making political endorsements because Ivanka and Jared Kushner made him dial back his anti-LGBT stance?

And not even the Super Bowl is safe from politics. Our new commander- in-chief happens to be a pal of the Patriots' owner, coach and quarterback. I'll ask ESPN's Stephen A. Smith how this will all play out tomorrow.

But, first, permit me to advise our new president. Mr. Trump, a federal judge, appointed by George W. Bush, has just given you an out. You kept your campaign pledge. You initiated a Muslim ban, or as you would say, a ban on seven majority Muslim nations. But now comes a temporary restraining order, staying the travel ban. Look at it as a gift. The ban was ill-conceived. It was clumsily rolled out. It provided recruitment fodder for our enemies and it focused on the wrong threat. It addressed refugees who heretofore have not been responsible for terror on our shores. The Cato Institute estimates that an American's chance of being killed by a refugee is about 1 in 3.64 billion annually.

So, where the ban was intended to be only temporary, the prudent path would be to tell your supporters you gave it a shot and then move on. But instead the White House has already vowed to fight what it initially called an outrageous ruling before deleting the word outrageous from the statement. That's a mistake where the full litigation of this issue could easily take longer than the ban itself would have lasted.

What do you think? Tweet me @smerconish. I'll read some during the course of the program.

Joining me now, a constitutional scholar, Jeffrey Rosen is the president of the National Constitution Center. Jeffrey, a TRO comes with a high threshold. Explain that to the audience.

JEFFREY ROSEN, PRESIDENT, NATIONAL CONSTITUTION CENTER: Yes. In order to get a temporary restraining order, there has to be a likelihood of succeeding on the merits and the risk of irreparable injury. So, this judge concluded that there was a high chance that the plaintiffs would succeed on their constitutional claims. He noted especially that the order bans Christians and seems to engage in religious discrimination; and for that reason, he said it was necessary to issue the ban nationwide.

SMERCONISH: The order is at odds with another order from a federal judge in Boston. So, how to reconcile those two competing views?

ROSEN: Well, ultimately, the Supreme Court could weigh in. But what's so significant is a single federal judge can ban an order for the entire nation. In this order, the judge cited the order banning President Obama from deporting the parents of the illegal immigrants and the transgender policy by President Obama was also blocked by a single district judge. So, until lower federal courts can disagree, this ban will remain in place, the appellate courts will hear it. And, eventually, if there's a disagreement among the appellate courts, the Supreme Court could step in. But as you said, Michael, the litigation could absolutely take longer than the ban itself.

SMERCONISH: Jeffrey, we're having this conversation at the end of a week, which saw the new president make his selection for a replacement for the seat that had been held for Antonin Scalia. Is it ultimately the Supreme Court that will have to determine the outcome in this case?

[09:05:00] ROSEN: Well, the Supreme Court could choose not to get involved, but if there is a serious disagreement among the lower federal courts - and there are suits going on here in Hawaii, in Michigan, Washington State, California, Virginia where there is a separate challenge to the order to deport people at Dulles Airport. Given the likelihood of disagreement among the lower federal courts, that's the kind of situation where the Supreme Court ultimately usually does step in.

SMERCONISH: And before we get to that step, Jeffrey Rosen, you know the different circuits in the nation. So, with regard to the travel ban that has just been stayed by the judge on the West Coast, to what circuit is this going and what is their reputation?

ROSEN: You know, I'm not going to be able to gain that one out right away, but I can say that the majority of the circuits are controlled by Democratic appointees and the majority of federal district judges are Democratic appointees and it will take a long time for the Senate to tip that balance. So, there are many, many potential blocks to the implementation of this travel ban as we move forward.

SMERCONISH: Confusion has reigned since the order was initially put into effect by the president. Do you expect that there will now at least be uniformity of approach and that all will be respecting the fact that the ban has been stayed? Might some clarity come from this?

ROSEN: It's possible. And it's significant that the Customs and Border Patrol did order the issuance of visas, which had previously been blocked. The administration told a Virginia court that first 100,000 and then 60,000 visas have been revoked, and that'll change now. But the real drama is, will the president comply. There are some reports that the government is not complying with the Virginia court's order to stop deportation of people at Dulles Airports.

You could see a confrontation between the president and the courts of the kind that we haven't seen since Cooper and Aaron. That was the case where Gov. Faubus stood at the courthouse door to stop African American students from being admitted. Ultimately, the Supreme Court unanimously ordered the admission and the president did comply. But the question of whether President Trump will comply with these orders will create a constitutional drama of the most high significance.

SMERCONISH: And to that point, final question, equally interesting will be to see what the responses from rank-and-file government employees where already there seems to be some blowback toward the president on a variety of his proposals?

ROSEN: Absolutely. You know, there's a lot of confusion about what the state of the law is, but faced with the possibility of this order, that may embolden employees who are not inclined to enforce the travel ban and will make it all the more difficult to get national uniformity. But it's a huge deal. And it's just a really dramatic example of how a single district judge, one federal judge, can enforce the constitution to the entire nation.

SMERCONISH: Jeffrey Rosen, President of the National Constitution Center, thank you so much for your time and expertise.

ROSEN: Thank you, Michael.

SMERCONISH: How will President Trump respond to this latest setback? Well, here's a tweet just in this morning. "The opinion of this so- called judge" - hey, can I stop right there? Hold on. Just freeze the image. So-called judge? It's a federal judge appointed by President George W. Bush. I try and show the office of the president respect in the way that he ought to be showing respect for a member of the federal judiciary with a lifetime appointment. That's not right. Frankly, I lost track of whatever the second half of that tweet was.

Salena Zito is here. Thank goodness. She writes for the "Washington Examiner" and the "New York Post." Hey, Salena, I'm sorry to drag you into this, but come on, you're the commander-in-chief, you can't be disappointed with the outcome of a federal case and say, "Well, the so-called judge." He did that with Judge Curiel in the Trump University case and I thought it was appalling.

SALENA ZITO, CNN CONTRIBUTOR: But are you really surprised? I mean, this is the way that he communicates. Every day, every minute, every hour, we're - you know, we're breathlessly reporting on how surprised we are by his behavior. And while it is completely different from President Obama, President Bush, President Clinton and so on, this is exactly what people voted for, whether you like it or not. The people that showed up to vote in the states that count, they wanted this disruption. They wanted this guy that talks the way he does. Now, that might not sit well with a lot of people, but this is who he is and it's not going to change. He's 70 years old.

SMERCONISH: I mean, I get it. I get it. Yes, that's a good point too. It's hard to teach an old dog new tricks. By the way, I love dogs. Don't beat up on me for that. I don't mean Salena.

(LAUGHTER)

[09:10:00] SMERCONISH: But the thing that bothers me - I'm an officer - thank you for the laugh. I'm an officer of the court. You know, it's one thing if you're talking about Rosie O'Donnell, but the beating up of someone who's been vetted by the Senate and has a lifetime appointment, it troubled me in the case of Trump University and I don't like it in this.

Let me ask you a different question. Maybe you heard my commentary at the outset. Isn't it time for him prudently to fold his tent. He gave his supporters what they wanted. He delivered his best he could on that campaign promise. And now, he should move on rather than litigate this for a time period that would extend beyond the ban itself.

ZITO: You gave a really good point actually. And it might be something that he considers. You know, when I interviewed him last April, I talked to him about all the lawsuits and all the litigation that he faces, you know - that was when he was a businessman - and he said that, you know, he doesn't go into a lawsuit or he doesn't get into a fight that has to deal with litigation, with money, with consequence that he doesn't think he is going to win. That actually might be an option that he considers. I thought it was a really good point that you made.

SMERCONISH: CNN has a brand-new polling out that shows most Americans - I think the margin is 53/47 - oppose his travel ban. That's part of the reason why I say this would be politically prudent for him to keep moving. Otherwise, it runs the risk of bogging down the remainder of his agenda. You can have the final word on that.

ZITO: Look, I think that this could have been handled better. I think he could've gone out there and said, "Look, I really apologize for my harsh rhetoric during the campaign, but as your president I know things that - I think this will keep us safe and it's time to take a pause and relook at how we screen people." That would have been much better received. Instead, we're facing all this chaos.

SMERCONISH: I recognize the backdrop from Pittsburgh, Pennsylvania. Thank you, Salena. Appreciate it very much.

ZITO: Thank you.

SMERCONISH: What do you think? Tweet me @smerconish. I will read some of your responses throughout the course of the program. Anything come in that's worthy yet?

"Smerconish, your reasoning regarding the ban is sound, but you are trying to appeal to an unreasonable man." Well, I think it makes sense all around, right? Good for the country and, frankly, good for him politically. Mr. President, if you're watching from Mar-a-Lago, I just gave you the out.

Up ahead, college campuses have always been a hotbed of activism from the student body. But this week, four dozen college and university presidents turned activist, sending a letter to President Trump against the refugee ban. Were they out of line?

And it's Super Bowl weekend when our nation unites to watch our warriors on the gridiron. But this year, one team has close ties with the president and politics have spilled on to the field. Luckily, Stephen A. Smith is here.

(COMMERCIAL BREAK)

[09:15:00] SMERCONISH: President Trump's refugee ban, suspended last night by a federal judge, had already received some strong criticism on college campuses. Understandable since more than 17,000 US college students come from the seven impacted countries, but the shocker was that much of the criticism came not from student activists, but from the top. Dozens of university presidents came out strongly against the ban, first in statements to their own communities and then a letter to the president, which says, in part, "If left in place, the order threatens both American higher education and the defining principles of our country."

Among the 48 signers, Washington University at St. Louis, which has about 50 students from the countries on the list and which - you'll recall - hosted the presidential debate between Trump and Hillary Clinton last October 9.

Joining me now, its Chancellor Mark Wrighton; and from Vanderbilt University whose Chancellor Nicholas Zeppos also signed that letter; Carol Swain, Professor of Law and Political Science who wrote this at CNN.com, "Trump's order is a balm for Christians, not a ban on Muslims."

Mr. Chancellor, I'm going to begin with you. By the way, I broadcast my radio show twice this year from your Paul Harvey facility. I love your campus. Why did you step out of the ivory tower and get so politically active along with 47, 48 others of your brethren?

MARK WRIGHTON, CHANCELLOR, WASHINGTON UNIVERSITY IN ST. LOUIS: My colleagues and I believe that American higher education is a great asset of this country. This great asset attracts talented people from all around the world. We're fortunate to be able to work with some of the finest students, and I might note that we've recruited a great many faculty members from other countries. About 30 percent of our faculty were born in another country.

America is a great country. Our research university enterprise is world class. The executive order issued by the president undermines our effort to strengthen our ties internationally and undermines our effort to build collaborations that are going to contribute to a stronger, more vibrant US economy.

SMERCONISH: Can I pick up on that word collaboration because something that occurred to me is the fact that we have 17,000 of these students studying in the United States, more than 12,000 alone come from Iran? Who would we rather Iranians get their news and information about the United States from, the Supreme Leader or those 12,000 who come here and study and go home and spread the word about the United States?

[09:20:00] WRIGHTON: It's very important that we draw students from all parts of the world. It's important for American education. The US citizens who come to Washington University benefit enormously from this interaction with international students. Those students who come from other countries are our ambassadors. In fact, under the leadership of President Bush and Secretary of State Condoleezza Rice, they embraced international higher education in the national interest. I think we need to affirm the importance of working collaboratively. There are global problems that we need to address together and the talented people from the United States and talented people from around the world should work together to address these problems.

SMERCONISH: Mr. Chancellor, thank you so much for your time.

WRIGHTON: Thank you.

SMERCONISH: Prof. Swain, to my point, about the fact that we are casting aside the use of 17,000 ambassadors, right? They come here, they get a taste, they're exposed on wonderful campuses like Vanderbilt. By the way, I have a daughter who graduated from Vanderbilt. And then they go home and they spread the truth about the United States. That's what's at risk here, no?

CAROL SWAIN, PROFESSOR OF LAW AND POLITICAL SCIENCE, VANDERBILT UNIVERSITY: Michael, I disagree. I think that there's a false narrative that this is a ban against Muslims. That's not true. And I believe the president operated fully within his executive authority. What I see coming from the universities is an astonishing amount of hypocrisy. Some of these - the president's ban is not that different from the one that President Obama put in place. We did not hear screaming from these leaders when that occurred. We also did not hear them speaking out when the Obama administration had a policy that resulted in Syrian Christian refugees - making it almost impossible for them to come to the United States. And so, there's been a discrimination against Syrian Christians by the Obama administration. The Obama administration, when it comes to Cuba, it's changed its policy in a way that disadvantages refugees. Why weren't these leaders speaking out?

And I think the university presidents are terribly wrong that they - 28 colleges have announced that they're sanctuary campuses. They get federal funds. They are supposed to follow the federal law. They need to be teaching all of our students about the constitution, about executive orders, about separation of powers. I believe that they are failing in their mission. And, right now, they're engaged in a huge distortion. Everything is not about them and their mission. I agree that we're enriched by students from all over the world. But at the same time, I don't believe the president's ban jeopardizes any of that.

SMERCONISH: I appreciate your perspective. Listen, you're here for the umpteenth time because I want to hear what you have to say, even if I don't agree with it. I'm worried about the young scientist, the aspiring scientist in one of these countries who maybe has already applied to your school and then accepted for next year and now - you know, maybe early decision. And now, they're saying, "Geez, am I still going to go to the United States?" I mean, the turmoil that's been created around the people who don't cause a risk to this country - they are not the ones. We have more problem from people who are here in the States and are Americans and have become radicalized through the Internet.

SWAIN: Michael, whenever there is a policy change, someone is going to be inconvenienced. I agree that the policy was rolled out very poorly. It could've been better done. But it was fully within the president's authority. I think his executive order is constitutional and that it will be upheld by the courts. A lot of partisanship has taken place in all of this debate. The media, of course, is shaping public opinion because it's making it seem like it's a Muslim ban. It's not a Muslim ban. Again, there's a lot of hypocrisy. And I think people, including the media, need to do more studying of the issue.

SMERCONISH: All right. Let me - I hate to say, the media today is whatever you want it to be. You know, the media is Fox and it's Breitbart and it's Drudge and it's AM Talk Radio and it's an alternative. OK, so let me just say, if I might, to this. Practical advice for the president. I hear everything you've just said, but is it really worthwhile to now litigate this for a time period longer than the ban itself would've lasted?

SWAIN: Well, I think that when - if I were President Trump, I think I would slow down with the executive orders and do more - take more time with some of the actions that he's trying to accomplish. But I think if you look at President Obama legislating using executive order, when he put DACA in place and various things, no one complained his actions were unconstitutional.

SMERCONISH: Everybody complained. Come on. Come on, a lot of people complained. You complained. You complained.

SWAIN: I complained. Who am I? I complained. Who cares?

SMERCONISH: Yes. Professor, thank you as always. Appreciate your being here.

SWAIN: Thank you.

[09:25:00] SMERCONISH: Let's see what some of you are thinking, tweeting me @smerconish. What have we got, Katherine?

"Smerconish, we the people wanted this 90-day pause. He ran on this ban. We the people voted for him because of his promises." OK, Ron. I get that. I totally get that. And elections have consequences, but now we've got to respect the rule of law. And I'm making a practical observation, which is to say, do we now want to duke it out over this for longer than 90 or 120 days? That makes no sense and it's not wise for the president to expend political capital on it. That's my thought.

Want to escape all the politics. It is Super Bowl weekend, but this year politics have spilled on to the gridiron. Stephen A. Smith is up next.

(COMMERCIAL BREAK)

[09:30:00] SMERCONISH: Tomorrow's a big day in America, an annual rite of passage on which we gather in our homes among family and friends and we watch football. Historically, the day has been a respite, a break in our own conflicts of life, so as to watch warriors on the gridiron. Sure, we'd wager against one another and root for our favorite teams, but with a sense of camaraderie and celebration. Now, politics are permeating a national pastime just as they're showing up in every other aspect of life. You can't buy a cup of coffee at Starbucks or get in an Uber without thinking about the political posture of your vendor. And don't even think of turning on an award show unless you're ready for a political speech.

In the NFL, Colin Kaepernick turned the national anthem into a song of controversy this season. And tomorrow, it'll be hard to escape politics. President Trump will be interviewed by Bill O'Reilly on the pregame show and Trump is well known to be a friend and fan of Patriots owner Robert Kraft, coach Bill Belichick and quarterback Tom Brady.

When players had a press availability earlier this week, there were questions raised about Trump and Commissioner Roger Goodell that went curiously missing from the transcripts distributed to the media.

Vice President Mike Pence will be in attendance tomorrow. Former President George HW Bush and First Lady Barbara, both recently released from the hospital, will participate in the coin toss. No controversy there. But Lady Gaga, who supported Hillary, will be the halftime entertainment. You remember, at the 2010 MTV Video Music Awards, she wore a dress made of meat. So, anything can happen.

All that, not to mention a controversial commercial from Budweiser highlighting the immigration path of founder Adolphus Busch. During his journey, he's taunted with cries of you don't look like you're from here, go back home or you're not wanted here. Despite a rather timely political message, Anheuser-Busch claims they had no partisan agenda. Their VP of marketing said they believe beer should be bipartisan. Well, if it is, it's one of the only things left. Enjoy the game.

Joining me now, ESPN's Stephen A. Smith. Stephen, I remember Frazier/Ali '71 at the Garden. I was just a kid. It had a lot of political ramifications to it. Do you feel the same way about this game? STEPHEN A. SMITH, FEATURED COMMENTATOR, FIRST TAKE, "ESPN": I don't the game itself has a lot of political ramifications. I just think that when you talk about President Trump and his relationship with Tom Brady, his relationship with owner Robert Kraft and, of course, Bill Belichick, which has been well documented, I think that that's where it goes from there. And not only that, let's keep in mind, Goodell as well, which is not the greatest relationship in the world.

Remember that President Trump before he ever ran for office wanted to own an NFL team, in particular the Buffalo Bills from a few years ago, and that's something that fell through. You have some people who have speculated that's actually what spearheaded Trump to actually run for the presidency that had he ultimately captured an NFL franchise he may not have even run for president. So, you look at it from that perspective, there's certainly tentacles, you know, emanating into the world of sports. But in the end, it's a political - it's 1971 at the time of Frazier and Ali or whatever. Some would argue against that, some would argue for it simply because of what's going on. I don't think that as it pertains to this specific weekend that it applies in that regard.

SMERCONISH: The NFL seems to be swimming upstream and trying to keep politics far away from Houston. And I'm thinking of those transcripts from earlier in the week where they left out reference to Trump and Goodell.

SMITH: Well, it was very, very weak on the part of Goodell as far as I'm concerned. It's something that he's been really ducking, you know, running from in the eyes of some people. And I agree. I tend to agree with that. Trump has had a lot of things to say. He's had a lot of things to say not just about his relationship with Brady, Belichick and Kraft, but he's had things to say about Roger Goodell in the past, which is incredibly well documented.

Roger Goodell is about the business of making money for the National Football League and we do live in polarizing times right now. No question about it. And so, as a result of that, the NFL, which is always about guarding its money, its shield, its brand, doesn't want to do anything to alienate an audience. It's been a rough year for them. If you recall, early in the season, everybody was talking about ratings whether they were television ratings or the like. They were looking at the NFL in a way where you found yourself asking questions as to whether or not the NFL would continue to prosper, even though I thought it was a foolish question at the time and I still think it's a foolish question now. There were some people asking that question.

In the end, if you're Roger Goodell, you're sensitive to all of that. And anything, anything that would remotely create headlines to take away from the on-field performances of the Atlanta Falcons and the New England Patriots is something that he's going to try to avoid. I just think it's a shame considering the history with Donald Trump in some capacity that he would try to get away with something like that because it came across as incredibly weak again.

[09:35:00] SMERCONISH: You think Goodell has his fingers and toes crossed for a Falcons victory? I mean, how awkward would it be for him to present that trophy to Kraft, how awkward could it be if Brady is the MVP and he's presenting that trophy to Brady?

SMITH: Well, I think it would be very, very awkward, but nothing compared to what it would've been last year, even before Brady's official four-game suspension had been handed down. If Roger Goodell had to present the trophy to Robert Kraft and Bill Belichick and Tom Brady in the throes of the deflate gate investigation that a lot of people, particularly in the Massachusetts area, felt was completely bogus, I think it would've been incredibly awkward. It still would be because, again, Tom Brady served a four-game suspension this year, then came out after the four-game suspension, dropped about 28 touchdowns, only threw two interceptions, (INAUDIBLE) for 4300 yards and is a clear bona fide illegitimate league MVP candidate.

So, when you look at it from that perspective, I mean, he shut up all the naysayers to some degree, but you've got to believe that there is a part of him that feels like Roger Goodell needs to be called for the carpet. His father was on the record saying that Roger Goodell should basically be ashamed of himself. So, when you take all of those things into consideration, there is no doubt what the feelings are in the Brady household, which, obviously, would make Roger Goodell very uncomfortable because the folks at Foxborough and New England fans everywhere have definitely been asking where is Roger. You heard those chants during the AFC Championship game.

SMERCONISH: Hey, Stephen, help me win some money on my prop bets. Does Lady Gaga get political at half time?

SMITH: Yes. I don't think she can help herself and I think that musicians live by a different creed. You know, they're free-flowing, they're very - they've got renegade tendencies and they're the type of folks that always are looking for an opportunity to make a statement for whatever cause they vehemently support. Lady Gaga certainly falls under that category and it would not surprise me at all if she tried to make a political statement, but it also would not surprise me at all if the National Football League did everything to incentivize her not to. I think she'll give the impression that she'll listen, but not totally.

SMERCONISH: All right. Final subject. I know you've seen the Budweiser commercial. They say, "Hey, come on, beer is bipartisan." What did you make of the commercial?

SMITH: I definitely thought they were making a statement. I think to say that they weren't making a statement is just, you know, spitting in our face, telling us it's raining. They clearly were making a statement against our president and his policies on immigration, building a wall, et cetera, et cetera. They wanted to make sure that they came across as very inclusionary. And that may very well be their consciousness and most people may feel a willingness to applaud it. But, for me, Michael, it all comes down to the almighty dollar. Whatever positions you to make the most amount of money is what position you're going to adopt in corporate America. That is my experience covering big business in the world of sports. Whatever works for the bottom line is something that you're going to support. And, clearly, Budweiser feels that that's probably the situation in this particular instance and that's why they did the commercial that they did. They can deny it. They might be right. I just don't think so.

SMERCONISH: Safe travels to Houston. You are rocking the turtleneck. Get ready for Super Bowl. Thank you, Stephen.

SMITH: No problem. And take care.

SMERCONISH: Lot of reaction already at @smerconish. Keep the tweets coming. Katherine, give me one. Let's see what we've got. "Smerconish, I was a diehard Brady fan and then I found out he is cozy with Trump, rooting hard for Falcons, politics are everywhere." I've seen polling data that suggest only a third of Americans are rooting for the Pats and I was wondering about that.

Hit me with another one. "Smerconish, I have never felt more proud to be a Canadian." Listen, I'm proud to be an American. We have our disagreements here. As Frank Sinatra said, that's what makes it so much fun trying to fix this country.

Up next, President Trump promised to "totally destroy" a 60-year-old IRS law which prevents tax-exempt organizations, including churches, from political endorsements. Was he just throwing a bone to evangelicals because his daughter and son-in-law made him reverse his anti-LGBT stance?

(COMMERCIAL BREAK)

[09:40:00] SMERCONISH: Is religious freedom under threat? That's what President Donald Trump claimed this week at a prayer breakfast and he vowed to repeal the Johnson Amendment - that's a 1954 IRS rule - that regulates what tax-exempt organizations like churches can do in the political arena.

(BEGIN VIDEO CLIP)

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES: I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that. Remember.

(END VIDEO CLIP)

SMERCONISH: But today's "New York Times" suggests he was really throwing a bone to evangelicals when he said that because they had wanted him to roll back President Obama's LGBT protections. The Times says Trump pulled back an executive order to end those protections after being swayed by his daughter Ivanka and her husband Jared Kushner. So, what's going to happen in this tricky interplay of church and state.

Joining me now, Tony Perkins, the President of the Family Research Council, a conservative policy and lobbying organization, and Rob Boston, Director of Communications at Americans United for Separation of Church and State and the author of Taking Liberties: Why Religious Freedom Doesn't Give You the Right to Tell Other People What to Do.

Rob, let me begin with you. Backup a step. What's the premise? What's the idea behind giving churches a tax-exempt status to begin with?

[09:45:00] ROB BOSTON, DIRECTOR OF COMMUNICATIONS AT AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE: Well, it's a long tradition, a long custom. I think it goes all the way back to Western Europe and maybe even the Roman Empire before that, but it's something that - the idea is that these are charitable institutions. They're providing something good for society. They're beneficial and that's why they're not supposed to be partisan political. They're providing a benefit. Politics is not their job.

SMERCONISH: In other words, it's a social contract. Hey, we want people to do - pun intended - God's work, so we're going to make it easier for you, we're going to give you a tax-exempt status to go out and pursue those endeavors.

BOSTON: Yes. I mean, you have to remember tax exemption is extended to lots of different types of organizations. Obviously, lots of different houses of worship, but it's also given to artistic societies, literary societies, various types of advocacy organizations. My own organization is tax-exempt. We are not supposed to be telling people that they ought to be voting for or against a certain candidate. There are also restrictions on the lobbying we can do. So, there are a lot of controls that come with the benefit of tax exemption because it is a benefit.

SMERCONISH: Great. So, this is a perfect example. Your organization, as I understand it, played a role in the immigration ban litigation that I've been talking about throughout the course of the program. If I write a check to your group, I'm getting a tax break, right? But if I write a check to your group and now you get partisan, not a church, but your group gets partisan, what of the tax consequence of my donation?

BOSTON: What concerns me about that is that it can turn our houses of worship into little political action committees. Why would anybody give money directly to a campaign and find that to be not tax-exempt when they could give it to a sham non-profit or a church, have them launder it, and suddenly it's tax-exempt.

The dark money aspect of this has not been fully explored. I think it's extremely troubling. We don't want our houses of worship turned into political action committees. In fact, all the polling data I've seen on this shows that the American people are absolutely against the idea of churches being able to endorse or oppose candidates and being partisan because they don't think that's what churches are for. In fact, the one thing people like about a church or a house of worship is that you can get away from the red/blue divide in this country. You can put that aside for a little while. To allow those churches to jump into that I think would just be legally a mistake, but also just - it affects their basic culture and their function.

SMERCONISH: Rob Boston, thanks for the expertise. We appreciate it.

BOSTON: Thank you.

SMERCONISH: That tees up perfectly my next guest, Tony Perkins, of the conservative lobbying group, the Family Research Council. Tony, welcome back. Let me ask you about this Times report today. Do you feel that the president came to that Prayer Breakfast and stressed his desire to get rid of the Johnson Amendment because you're not getting what you are looking for from him on the LGBT rollback from President Obama?

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL: Not at all. The president talked about this throughout the entire campaign. It was in the Republican Party platform. I was on the platform committee. I actually amended the platform to make clear the repeal of the Johnson Amendment. And by the way, it was reintroduced into Congress by the majority whip on Wednesday, the day before the Prayer Breakfast. That's the reason the president mentioned it and it has nothing to do with money being expended on political campaigns. This is about speech. It's about allowing pastors, other religious leaders and organizations to speak freely, yes, on candidates, but more importantly about issues. We had 99 churches, in 2015, the IRS opened investigations on them for various reasons.

Look, where would this nation be if we did not have ministers like the Rev. Dr. Martin Luther King who spoke out on political issues that were spiritual at their core.

SMERCONISH: Right.

PERKINS: And that's what we're talking about here.

SMERCONISH: OK. But any religious leader can say whatever he or she wants to say, including politically, but you're asking me, as an American taxpayer, to continue to provide you with a tax-exempt status, as you do so. Right now, I, as a taxpayer, am supportive of all of the efforts of all of the churches in this country. But if they get political, I don't think it's fair for me as a taxpayer to just continue to provide them that benefit.

PERKINS: It depends. Look, we have issues that are inherently moral and spiritual. Life, human sexuality, marriage, those are spiritual issues. They've been made political. And so, what we have, like we saw in Houston a few years ago, where those issues were declared strictly political and pastors have their sermons subpoenaed by government officials. Look, these issues predate government. The church predates government. And long-standing tradition in this country has been, until the 1950s when the Johnson Amendment was added, was that pastors and churches can speak freely. I mean, this goes back to the Apostle Paul or Apostle Peter and John who said, "Look, you're not going to regulate what we say; we're accountable to God, not to some government bureaucrat."

[09:50:00] SMERCONISH: OK. Final point. I don't know that it says this in the good book, but I remember hearing, be careful what you wish for. Has it occurred to Tony Perkins that in a case like this, you could be outflanked by liberal churches and liberal non-profits who then get politically energized.

PERKINS: Michael, I have defended liberal churches' right to speak when George W. Bush's administration opened investigation on them. I believe in the freedom of the pulpit to speak what it declares biblical, no matter if it's left or right.

SMERCONISH: OK. And I agree with you and I believe in the ability of anybody to speak their piece, but whether I, as a taxpayer, should be subsidizing it is a different question. Tony, thank you as always. I appreciate your being here.

PERKINS: All right, Michael. Have a great day.

SMERCONISH: Still to come. Your best and worst tweets. Hit me, Katherine. What have you got?

"Smerconish, you're an asshole." I am. You are correct. "You only respond to tweets that align with you. Trump is right and you are stupid to realize it. RSVP." Hey, Lynn, I think I just did. And by the way, Lynn, have you noticed on balance that the tweets that get put on the screen are not the ones that kiss my - well, the word you just used?

(COMMERCIAL BREAK)

[09:55:00] SMERCONISH: You can follow me on Twitter if you can spell Smerconish. What have we got?

"Smerconish, a bunch of lib college presidents don't like what Trump does. Here's my shocked face." Hey, Bill, 17,000 students were caught in the switches on that. 12,000-plus from Iran. I think I make a good point when I say, those 17,000 are the best ambassadors we have and to jam them up is a big mistake.

Next? "Budweiser says beer should be bipartisan. That's why I switched from Yuengling. They rub my nose in their partisanship." Hey, Tom, give me a pale ale that's hoppy and I don't care what the politics are.

One more. "Smerconish, expect Trump to tweet during Super Bowl. He can't stand any show that gets better ratings than him. So sad!" Larry, sad is a word that he would probably use.

Thanks for watching, gang. Next Friday night, they're letting me back in prime time at 9 PM. Circle that on your calendar and I'll see you then.

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