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Sterling Breaks Silence; New Policies for Tracking Flights; Smerconish on NEW DAY

Aired May 12, 2014 - 08:30   ET


CHRIS CUOMO, CNN ANCHOR: What does this all mean for what's going to happen with the team? That's the real issue. Let's bring in David Cornwell, he's a sports attorney and a partner from Gordon and Rees LLP, and Mr. Jeffrey Toobin, senior legal analyst and former federal prosecutor.

For the purposes of this situation, please, Jeffrey Toobin, represent the league, and you, Mr. Cornwell, you represent Mr. Sterling. OK? So we just heard from your client, Mr. Cornwell. He comes forward. He says, I was baited. I didn't really mean this. Even if we give him the benefit of truth, for everything he said, what's your best case for why he gets to keep the team?

DAVID CORNWELL, PARTNER, GORDON & REES LLP: Well first thing, this is a case I wouldn't take on contingency because I think it's a difficult argument for him to make. But I think his best argument would be that under the NBA constitution and bylaws, Article 13, there's no real provision that speaks to this.

And if they say that he failed to refused to abide by a contractual obligation, which is likely the provision upon which the owners are going to rely, we would take the position that they've misinterpreted that. He did not violate any contractual obligations in a private conversation with a young lady where there was no duty being owed to any third parties, and particular a member of the association.

But more importantly, I would take the position that he had a legitimate privacy interest that this comment would not be made public and that she violated California law by doing so and that the violation of the law cannot end in such an egregious result for my client, Donald Sterling.

CUOMO: A little taste of equity of horrors, a forfeiture coming from Mr. Cromwell if law -- my law studies served. What would you say on behalf of the league?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You're asking - you're asking me, Chris?

CUOMO: Yes, that's who you represent. You represent the league, Toobin. Come on, man, get with it.

TOOBIN: Yes, I'll - I'm sorry, I've got to - got to get to work here. The answer is, the NBA is an association and they have to -- they have the right and the obligation to control who is a member. And they have a wide variety of tools, including a morals clause, including the article 13, and, most importantly, it is quite clear that as a result of the publication of these comments, the players will not play for Donald Sterling, and the NBA is not going to force players to play for an owner they will not play for. Thus, he has to sell the team.

CUOMO: All right, so build - first of all, let's just deal with this one point for one second. I want to get to Shelly's -- his wife and her particular wrinkle in this. But the idea that the players won't play for them, what's the best you can come up with that, Mr. Cornwell. Certainly Doc Rivers seems very upset but he hasn't stopped cashing his paycheck. Neither have any of the other players. What's your best counterargument to the idea of, we have to kick you out, no one will play for you.

CORNWELL: Again, you know, I'm a players' advocate, so this is a very hard argument for me to make. But the argument would be that they're under contract, they have an obligation to fulfill the contractual duties to the Clippers. And that's really the end of the story, they're under contract and there's nothing else that they could do. But I would expect that we would see more than just Clipper players protesting. So it will be a pretty hard road to hoe for the Sterlings.

CUOMO: They're all still playing, Toobin. They're all taking their paycheck. Everybody wants a spot in the league. Everyone says this man's been a known commodity for all these years. Is that really going to hold any water? Do you think that that's the best the NBA can do is we don't think people like you?

TOOBIN: Well, the only - the only reason they're playing is that the NBA has started the process of divesting the Sterling family from this franchise. Remember, it was not clear at all that they were going to even play the first play-off game when the NBA had not announced its position. Once Adam Silver took the forceful action he did, it was only because of that that the players agreed to play. If the NBA were suddenly to say, well, we feel bad, you know, for Donald Sterling because he was set up by this crazy woman, all bets would be off. So the NBA is moving forward. There's no doubt they are going to try to remove him from ownership.

CUOMO: Right.

TOOBIN: And the only question is whether the courts will stop them.

CUOMO: Last point. Mr. Cornwell, do you believe that the wife or the estranged wife or the ex-wife, as Donald Sterling says, Shelly, she says I own 50 percent. Kick him out, but keep me. What's the best case for that?

CORNWELL: I think that she has a losing argument all around. Listen, there's a controlling owner of the Clippers and that's Donald Sterling. When the NBA owners take an action against him, they'll be taking an action against all owners. Her 50 percent interest will be addressed in the proceeds from the sale of the team. She'll get her 50 percent of the sales price. But other than that, she has no basis to claim that she has a right to remain in the league, and that's particularly under the constitution and bylaws. I think it's Article 43 says that there's no third party beneficiaries. So she doesn't even have a cause of action once you look at the constitution and bylaws for the NBA.

CUOMO: Big issue for her, obviously, is that she was never approved as an owner. So even if she were to use this trust constructively to say I'm part of the organization, the NBA would then get an opportunity to reject her outright in any event.

David Cornwell, I know it wasn't easy for you to support the arguments that you don't want to stand behind, but thank you for doing it so our viewers can understand. And, Jeffrey Toobin, always thanks to you.

All right, and obviously what we're playing off is this big exclusive interview that Anderson Cooper got with Donald Sterling. We've all been waiting for his side on this. Well, now you get to judge for yourself. You're going to get a taste of it this morning, but the real thing to watch is tonight, "AC 360," 8:00 p.m., of course, only on CNN.


KATE BOLDUAN, CNN ANCHOR: Coming up next on NEW DAY, are search teams now questioning the pings that have been really the sole focus of this search recently for Flight 370? We're going to discuss that.

And new offers for a free flight tracking service coming up.


BOLDUAN: Welcome back.

A critical meeting today to make tracking planes a priority after the disappearance of Flight 370. The global satellite service, Inmarsat, has announced that it will offer new technology for free flight tracking that could be used on virtually all commercial planes. This as new doubts have surfaced about some of the pings believed to be from the plane's flight data recorders. Joining us to discuss, Miles O'Brien, CNN aviation analyst and PBS science correspondent and also David Soucie, CNN safety analyst, former FAA inspector and the author of "Why Planes Crash."

Hello to both of you.

Important stuff that we need to actually chew through that has come out today. Let's talk first about the comments coming from the captain of the Ocean Shield, David Soucie, saying that they now have doubts about some of the pings that have been the focus of the search on the ocean floor. How do you think they reached that conclusion, first off?

DAVID SOUCIE, CNN SAFETY ANALYST: Well, first of all, what they did was go back and look at the frequencies. And the frequency of the second two pings that they received on April 8th were actually 27 kilohertz, which is 10 kilohertz less than what the pingers are manufactured to produce. So they are in question, they were in question, at the beginning. And I think that's why they started with the second ping, which they got on April 5th with their search up north there.

CUOMO: And, Miles, if this is the case, if these pings are not from the black box, they're going to be focusing on the first two pings, how does that impact the search?

MILES O'BRIEN, CNN AVIATION ANALYST: Well, Kate, I think some of this discussion is a little bit angels on the head of a pin because they have to rule out this area if nothing else. This is the only thing they have to go on. These are the only pings they've heard. It matches some other evidence which was derived from the Inmarsat communications, the so-called handshakes. And so I think they must continue searching there, if nothing else to say this isn't the place, because, frankly, where else are they going to go?

BOLDUAN: That's a good point.

So, Miles, what you're saying is when you see these comments coming from the captain, you're not seeing this as an admission of this search has been going in the wrong -- been in the wrong place so far? This is just further research, further consultation to investigate what where it could be and where it isn't.

O'BRIEN: Well, it might be a house of cards, but this is all they have in the way of any sort of evidence. And maybe it is a red herring. But what are they going to do? They're not going to weigh anchor, shove off and go somewhere else. They're going to have to run this to ground, as it were, do the search in this area and maybe, just maybe, these pings were the right ping and, you know, this will be a big break in the story. But in the meantime, I can't imagine them abandoning this site given the information we have. It is contradictory, it does seem flimsy, but they are pings.

BOLDUAN: Yes. And so that search will continue, Ocean Shield heading back out to the search area, and they'll return to that effort as soon as possible. And at the very same time, you now have folks looking forward. How do we avoid this from happening again?

And, David, Inmarsat coming out to now offer free flight tracking service. Did that surprise you?

SOUCIE: It does a little bit. It depends on how they plan to implement it though. If what they're using is this new found math that they talk about with the Doppler radar and the fact that nothing is necessary on the aircraft to modify, to increase this ability to track, then that's fine, it is free.

But I suspect it's more than that. I think it has more to do with the communication between the aircraft, which again is still reliant on the transponder, it's still reliant on the flight management system and the data being sent from the aircraft. So in this case, because all those things were off, it would have helped but it wouldn't have - it wouldn't have changed the scenario.

BOLDUAN: Miles, what do you think? Would -- if what Inmarsat is offering now, which is also something that's already offered in the maritime distress service, so we know that it can work, would it have changed the scenario of what we're dealing with, with Flight 370?

O'BRIEN: Absolutely. It would be night and day. We'd know exactly where that aircraft was. And, you know, I think it's great that Inmarsat is offering this, but why didn't this happen after Air France 447? Why didn't it happen before that? It's a very simple thing to add latitude and longitude and maybe airspeed and heading to this little communication which goes back and forth between the Inmarsat satellite and the aircraft passively. The fact that this is happening only now, if you really think about it, it's pretty extraordinary, the fact that we didn't have this information.

So, as far as getting that information in this so-called, you know, basic handshake, all they have to do is tap into the information which is fed into the black boxes which gives the latitude and longitude, airspeed and heading. Throw that into the handshake and we would not even be having this discussion right now. It should have happened long ago.

BOLDUAN: Which, of course, then raises the question, if it didn't happen after Air France, when many people were calling for increase -- better technology so this wouldn't happen again back then, you do wonder what will stand in its way this time around? Will the airlines get on board even if it does mean an additional cost for them? We'll have to -- that's the conversation that must continue and we need to keep drawing attention to.

David Soucie, Miles O'Brien, thanks, guys.


O'BRIEN: You're welcome.

CUOMO: All right, thanks, Kate.

Coming up on NEW DAY, Michael Smerconish is here to read the tea leaves in Hillary Clinton's new book. When she talks about her mother, is she really just telling you something about herself?

Plus, we're going to look at Michael's own new novel. Is he hiding a run for the president in there as well?


PEREIRA: Welcome back to NEW DAY.

CNN's Michael Smerconish is out with a new book, it's a novel drawing on his own long career as a talk show host. It's called "Talk: A Novel". It follows a conservative host who toed the radical party line and becomes a pivotal part of a presidential election.

Joining us is Michael Smerconish himself, host of CNN's "SMERCONISH", and host of the "Michael Smerconish Program" on Sirius XM. This is your NEW DAY debut, my friend. Welcome.

MICHAEL SMERCONISH, CNN HOST: Hey it's nice to be here. Thank you. PEREIRA: First off, we might as well talk about this because we've been talking about it here on the program, Hillary Clinton releasing an excerpt of her upcoming book in "Vogue Magazine" really talking about the influence her mother had in her life obviously in time for Mother's Day. What else do you read into it, Michael?

SMERCONISH: I think what she's trying to do is maintain her status as the presumptive front-runner without a formal declaration because the moment that she formally declares, all those rules changes. Those negatives go much, much higher and I think that the Republican targeting of her becomes much more blatant.

So it's very well orchestrated, and there's no advantage for her to declare prematurely.

CUOMO: But I don't get it. We all know that that's what's going on. I don't understand why the rules don't change when we all seem to be participating in the same ruse here, Smerconish. What's going on? Why are we playing this game?

SMERCONISH: Well listen, the Republicans, Chris, aren't playing this game. All that Benghazi talk last week, the talk that's about to unfold when Congress gets back in session is going to be a continuation of the GOP saying "we're not ready". But I think in the media world, she doesn't yet get treated as a candidate.

And she may as -- if you and I were advising her, this is exactly what we would be telling her to do -- delay, delay, delay -- because the treatment gets rougher once you're formally in.

BOLDUAN: Let's talk about your book, Michael Smerconish, "Talk". So as Michaela well laid out, it's about the rise of a radio talk show host. Why write a novel? Why not write non-fiction?

SMERCONISH: I thought non-fiction would be boring. You know I wanted to take some liberties. I wanted the language to be a little bit rough. Kate it's not exactly fifty shades of talk radio, but it is a balmy read. And it has a very serious message. And it's a message about how the polarized media in this country is driving us right into a ditch.

And I thought, as I began to write it four years ago, that if I wrote it as non-fiction it might not get the attention that it would get as a novel. I do take liberties but don't lose sight of the bigger message because I believe it fervently.

BOLDUAN: Is this a chicken and egg scenario though? I do often wonder, did the political polarization in the country happen and then the rise of talk radio or is it the other way around?

SMERCONISH: No, I don't believe it's chicken and egg. I think there's a causal connection and the polarized media led elected officials. And I reflect on the fact that when I started in this business two and a half decades ago, the radio station where I cut my teeth had a liberal, had a libertarian -- we didn't even know what that meant. We hadn't heard of Ron Paul yet. We had a Conservative, we had an Independent. The only litmus test was one's ability to conduct a conversation.

At the same time the Senate, the Senate in Washington was 60 percent comprised of moderates. That was on Ronald Reagan's watch. And then with the age of syndication, everything changed in radio. It then changed in cable television news when Fox came online in '96, MSNBC came online a couple years thereafter. You know the direction in which they went.

And I maintain in this book that they took Washington with them and it's to the disinterest of the country because when I'm out and about leading my own life, I meet people for whom the issues are a mixed bag. The only people who see the world entirely through liberal lenses or conservative lenses are radio hosts and cable TV presenters.

CUOMO: But it's not the issues anymore. I agree with you that it's not chicken-and-egg. I think that's actually a tired question at this point. But I think that the culture has changed in general and we don't want to own up to that yet. Negativity is now a proxy for insight. People don't need ideas to win anymore. They don't need better to win.

PEREIRA: But maybe that's just a moment. Is that just a -- do you think this is how it's --

CUOMO: It's been a long moment.

PEREIRA: -- it has been a long moment. But do you think there's a change coming like do you sense that this is going to -- the pendulum is going to shift away?

SMERCONISH: I hope so. I think there needs to be an awareness that when you receive entertainment masked as news, you need to be able to sort fact from fiction.

I'll tell you what this reminds me of. And I've got this image in my head of the Cuomo brothers doing exactly what I'm about to describe. My brother and I growing up in the Philly burbs in the 1970s used to be down in our rec room on these bean bag chairs beating the hell out of each other on Saturday mornings as we watch professional wrestling.

And this is when Vince McMahon really was a pencil neck geek. This is what the media world has become. Every issue today is good versus evil, good guys-bad guys, foreign objects you know which side you're going to root to. It has so debased the substantive debate that I think is necessary in this country.

And we're not going to change it until we wake up to it.

PEREIRA: I feel like that's a perfect segue -- it's a perfect to your show on CNN. Is it do you think?

BOLDUAN: Yes, it is.

SMERCONISH: I hope some. It's what I'm trying to do.

BOLDUAN: Real quick, Michael though. Do you feel that you were part of the problem?

SMERCONISH: No. I really -- this character in the book, the protagonist is named Stan Powers. Stan Powers will say anything just to get ahead. And his conscience bothers him because he's saying things with which he personally disagrees.

I'm sure in 20 years I've said plenty of ridiculous things, but I believe each one of them when I uttered them. That's the difference.

CUOMO: By the way, you're still part of the problem -- by the way. You're every bit as much a member of the media as anybody else. Don't upset yourself.

SMERCONISH: I am. But listen I don't -- this is not the way I play it. I don't play it this way. I don't line up guests looking for a conservative Republican. I want good compelling content, let the chips fall where they may.

PEREIRA: Michael Smerconish's book is called "Talk: A Novel". It's available now. Don't forget to tune in to "SMERCONISH" at 9:00 a.m. Eastern Saturdays on CNN. Welcome to NEW DAY my friend. Thanks for joining us.

SMERCONISH: Thanks guys.

BOLDUAN: Thanks Michael.

CUOMO: Coming up, a mom whose son has his lunch taken away for lack of funds pays off his account. Great -- but it gets better. That's why it's the good stuff. She doesn't stop there. What happens next -- you're going to want to see.


CUOMO: We've told you about schools taking kids' lunches away because they have a balance due on their accounts -- right. Here is what it feels like when it happens.


DOMINIC GANT, HIGH SCHOOL STUDENT: It was really embarrassing, especially in front of the whole lunchroom, right in front of the whole classroom, took my plate away, said I didn't have enough to eat today.



CUOMO: And he's, you know, getting to be a grownup. That's a high school junior, Dominic Gant. Guess how much his account was off by -- less than $5. His mother finds out. She's enraged. She goes up to the school and when she gets there, not only does she pay off Dominic's account, she pays off the past due balances of the entire school. Here's why?


AMANDA KEOWN, MOTHER OF DOMINIC GANT: I was appalled that he didn't have lunch and his lunch was taken out of his hands over $5. I realized I don't have to do that but I don't want another kid going through what my son went through.


CUOMO: It took $200 to get the entire high school current. Why is that important? Because the point is that $200, the point it makes is priceless. Shaming kids and throwing away food because of an issue like this is shameful.

PEREIRA: Come on.

CUOMO: And schools who do it, you need a lesson. We're very happy that Ms. Gant gave it to you.

PEREIRA: Go ahead Mama Gant.

BOLDUAN: Absolutely right.

CUOMO: Boy, oh boy.

Anyway, a lot of news to get you this morning so we get you to the "NEWSROOM" with Ms. Carol Costello.

PEREIRA: Good morning Carol.

CAROL COSTELLO, CNN ANCHOR: I hear you, Chris because I was on the free lunch program when I was grade school. And just being on the free lunch program was so embarrassing to me for a time.