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Smerconish

Will U.S. Pay Hundreds of Millions to Families Separated at Border; Will Rittenhouse Self-Defense Claim Convince Jury; Will Medical Advances Shape Abortion Law; COVID Misinformation Related to Trusted Media Sources. Aired 9-10a ET

Aired November 13, 2021 - 09:00   ET

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

[09:00:15]

MICHAEL SMERCONISH, CNN ANCHOR: So, what's it worth? I'm Michael Smerconish in Philadelphia.

What's the per person value of those civil suits pending against the United States government for the separation of immigrant families on President Trump's watch? That question has significant financial and political repercussions. Reports that the Biden administration was considering a value of $450,000 per person has drawn strong rebuke from Republicans.

But an editorial in yesterday's "Washington Post" cautioned that revulsed jurors could award even more. At issue here is the zero- tolerance policy set by the Trump administration in May of 2018 in which agents apprehended everyone crossing the border illegally including those seeking asylum. This meant children accompanying adults were separated from their parents where children enjoyed greater legal protection under immigration law, many remained in the U.S. child welfare shelters or with relatives while the adult they accompanied were prosecuted for crossing the border illegally. Many were deported.

The Trump administration failed to build a system to track the relationships between the migrants before separating them. The ACLU has identified about 5,500 children separated at the border during the Trump administration. Around 940 claims have been filed so far, according to the "New York Times."

In June of 2018, the ACLU won a nationwide injunction blocking family separations and upon filing a lawsuit in 2019, here's what the ACLU alleged.

That thousands of children, including babies and toddlers were quote- unquote "Ripped from their parents' arms with little or no warning"

"No explanations were given as to why they were being separated, and no answers were provided as to where the children were being taken."

"No information was given to either the children or parents about each other's whereabouts."

Children were sent to facilities hundreds or thousands of miles away from their parents. The separated families were not told when or even if they would ever see each other again. Many children and parents did not see each other again for more than a year.

"The separated children, after being taken from their parents, were detained in punitive conditions, which included going without communication with their parents for weeks or months. During this period, parents had no idea how their children were being cared for, or by whom."

Several parents attempted suicide. And some tragically occurred. Traumatized children were not provided any meaningful treatment to address the suffering they experienced, or the lasting effects of their separation and confinement.

The punitive class action for damages, that's now pending in the federal district court in Arizona, the certified class action, which declared the family separation policy illegal, that's pending in the Southern District of California.

On October 28th, "The Wall Street Journal" was the first to report that the Biden administration is in talks to settle those cases for around $450,000 per person. When asked about this, on November 3rd, the president said the report was garbage.

(BEGIN VIDEO CLIP)

PETER DOOCY, FOX NEWS REPORTER: Do you think that that might incentivize more people to come over illegally?

JOE BIDEN, PRESIDENT OF THE UNITED STATES: If you guys keep sending that garbage out, yeah. But it's not true.

DOOCY: So, this is a garbage report?

BIDEN: Yeah.

DOOCY: OK.

BIDEN: $450,000 per person, is that what you're saying?

DOOCY: That were separated from a family member at the border, under the last administration.

BIDEN: That's not going to happen.

(END VIDEO CLIP)

SMERCONISH: A day later, Deputy White House Spokeswoman Karine Jean- Pierre said that the president was perfectly comfortable with the DOJ settling with families currently suing the U.S. government, and that his comment of garbage was only responding to the $450,000 amount. Two days later, the president was asked again.

(BEGIN VIDEO CLIP)

BIDEN: If in fact, because of the outrageous behavior of the last administration, you, coming across the border, whether it was legal or illegal, and you lost your child, you lost your child, it's gone, you deserve some kind of compensation. No matter what the circumstances. What that will be, I have no idea. I have no idea.

(END VIDEO CLIP)

SMERCONISH: Republican pushback has been swift and strong, among those denouncing the idea of paying the migrants, Senator Tom Cotton from Arkansas who said the payments will be excessive. And only incentivize more illegal crossings.

But "The Washington Post" has a different take. In an editorial this week, "The Post" said that betting how a jury might react to testimony regarding trauma, suffered by very small children, that might be a roll of the dice, quote, "We agree that paying individual migrants $450,000 apiece -- or nearly $1 million for a single mother and her child -- would be a jaw-dropping sum.

[09:05:07]

It far exceeds U.S. government payouts to other grievously wronged groups, including Japanese Americans interned during World War II, or African Americans with syphilis who were deceived and left untreated by government doctors in the Tuskegee Study, in the mid-20th century.

Yet given that family separation ignited universal revulsion, who can be sure that contemporary jurors wouldn't be so similarly disgusted that they might award a tidy sum of, say, $1 million to each traumatized migrant?"

I found the comments appended to "The Post" editorial emblematic of a steep divide on the issue. Some said the real culprit here is not the U.S. government but the migrant parents who put their children in harm's way.

Others saw potential injustice in allowing anyone to be compensated from an act they saw as illegal. Others pointed out that military widows in the United States only receive $100,000 in comparison.

And on the politics of the matter, still another said that if you pay migrants that amount of money, you might as well hand Donald Trump the keys to the White House in 2024.

In my opinion, that last point is the most prescient. Compensating these families may indeed be necessary and settling in advance of a trial will alleviate the risk of an even bigger payout feared by "The Washington Post." But don't underestimate the political messaging that will come from Republicans in the midterms and next presidential election if big checks are cut to migrant families. This is just the sort of issue that motivates Trump's base.

I want to know what you think. Go to my website at smerconish.com. Answer this week's survey question, "Should the Biden administration pay money damages to settle litigation brought by immigrant families separated during the Trump administration?" Joining me now to discuss is Michelle Hackman, reporter for "The Wall Street Journal," who co-wrote the piece that first broke this story. And Alan Turkheimer, an attorney and jury and litigation consultant whose firm is called Trial Methods.

Michelle, what did you make of the president's response to the story that you broke?

MICHELLE HACKMAN, REPORTER, "THE WALL STREET JOURNAL": You know, before we broke the story, we knew that the settlement negotiations had sort of been approved at very high levels of the Biden administration, so it was a little surprising to us that the president's denial was so forceful.

SMERCONISH: Do you think that he was caught unaware?

HACKMAN: I don't want to speculate either way, but I think he was definitely reacting to sort of just what you were talking about, these political consequences of the sum that we're talking about, that's such a large sum.

SMERCONISH: So, this is - this is complex litigation. There are a lot of moving parts. A number of different government entities have been sued. Who's calling the shot from your perspective, reporting on this story? Do you know from where the primary role of negotiating is taking place?

HACKMAN: Yes. So, the Justice Department was the one who made the decision earlier this year, that it would be a lot easier for them to try to settle these cases sort of altogether, rather than try to litigate them one by one. You know, you mentioned there's a punitive class action in Arizona, representing these families.

But there are also, you know, a ton of individual claims around the country, families and you know, filing in Boston, and sort of elsewhere. 940 individual claims. They were asking for 3.4 million per family, on average.

So, I think the Justice Department made this calculation that they could take each one of these to trial. And you could imagine if they made that decision, we'd be having the opposite conversation, right? Biden administration takes families to trial. And you know it's a terrible headline for them.

So, I think they decided they'd save money. And they'd save face by settling.

SMERCONISH: Alan, in your capacity as a jury consultant, first, give me a gut check to the tab of $450,000 if it should end up in that region?

ALAN TUERKHEIMER, JURY CONSULTANT, TRIAL METHODS: That's a significant amount of money for some, but not a significant amount for others, so it really depends. And that's what makes it so fascinating when you have jurors trying to assess money damages. Certainly, when they assess how these families were treated, it's going to raise the anger level, and emotion and sympathy is not usually what triggers high damage awards, it's anger. So, if they get into the details and see those specifics of how these migrant families were treated, and understand the separation up close, then there could be high damage awards.

And $450 might be a benchmark and it might even be higher than that for a lot of jurors. And what will happen is, there will be a compromise ultimately in the jury box which happens when money is discussed.

SMERCONISH: So, Alan, if -- if either side were to consult with you, in a case like this.

[09:10:00]

What would you tell them in terms of who you do and don't want to make this call? For example, if you were - if you were breathing, if you were giving advice to the ACLU, you would be telling them what as the plaintiffs in this action?

TUERKHEIMER: I want to know how people think in their world view, so with the ACLU, I would say you want more realistic reasoners, people who are motivated to do the right thing, maybe people with a caretaker mentality who like to protect individuals. These are early childhood, grade schoolteachers, social science providers, community volunteers, maybe somebody who is primarily responsible for an elderly person.

People who are emotion-based decisionmakers. That's who I want. And then, somebody who might think that $450,000 per person is not that much. Because on the flip side, if somebody is making $45,000 a year, they might be thinking, well, it's going to take 10 years of my salary to compensate one person. That's a whole different story.

So, on the other side, if I'm thinking, working for the government, or suggesting who would be a low damage juror, I want somebody who has a background in business, in management, in finance, maybe insurance. Somebody who really, who balances a checkbook, who looks at the pennies, looks at all the dollars. They are more legalistic in their reasoning and they are not swayed by (AUDIO GAP) -- some people just --

SMERCONISH: Michelle --

Michelle, the political calculus here, do you have any intel as to whether that is playing a role in the judgment by those charged with trying to negotiate a resolution, because as you heard me say at the outset, I think that the political stakes of this are really significant.

HACKMAN: Well, we know. We know that this story becoming public has in fact impacted the settlement negotiations. The ACLU sort of said so publicly, they said the Justice Department came to them and said these numbers being reported, you know the settlement needs to land far lower than the numbers sort of floating around in the media. But I want to clarify, I mean, this was a precise number that we had reported out. So, it's not like the Justice Department had been backing away earlier than our report.

SMERCONISH: I don't understand. In other words, $450 was a number on the table being seriously discussed at the time that you published that story on October 28th.

HACKMAN: It was. It was. And it seems like our publishing that story and the sort of backlash that it caused definitely brought the Justice Department back to the table saying we need to go way down from there.

SMERCONISH: What kind of a timeline, Michelle, are we on, if you know?

HACKMAN: Yes. So, there are several lawsuits, and they all sort of say that they are going to update the court by November 30th. It's our idea that they want to try and reach a settlement somewhere in that window. So, I think we can expect something in the next few weeks.

SMERCONISH: Alan, as you well know, what matters most is venue and who is on that jury. Do you see much of a distinction between Arizona and California if, because it's unclear to me, whether there would be a jury involved here, or whether a judge could make this call, but as between those two locales, any differences there that are significant?

TUERKHEIMER: I don't see it, being border states, I think you're going to have people with really strong attitudes, people who are firmly committed to how they feel about immigration and related issues. So, I can't say that there is a distinction between those two venues for this type of case.

SMERCONISH: I imagine, Alan, given the political nature of the immigration debate, party affiliation is going to be the biggest criteria you would want to know if you were formally involved in a case like this.

TUERKHEIMER: It's huge. And with so many things in our country today, where we're largely divided, and politics is no different. So, I would want to know people's political outlook on things, and which coincides with how they view immigration. It's just there's no denying that. So yes, that would be something that I would want to know, and I would want to know how long certain individual juror has been aligned with one party or the other.

SMERCONISH: Michelle, final question, give me the latest, what is that you want to leave us with about the status of all of this as you understand it "The Wall Street Journal."

HACKMAN: Yes. So, I want to just mention, you said that there is a lawsuit in California. You know money damages are just part of the story. There is a separate lawsuit going on where they're trying to negotiate sort of some - some remunerative sort of help for these families to try to get them mental help services.

And really most importantly, you know the Biden administration has started finding parents that were sort of lost, that were deported to Central America, bringing them back. But they're giving a really temporary immigration status. And the ACLU is hoping that through sort of settlement negotiations, they do try to get these families a path to citizenship to sort of you know make them whole.

SMERCONISH: Well, let me just follow up. Are the kids being treated today?

[09:15:00]

Are they receiving the mental health treatment that they require now?

HACKMAN: I believe that some are, but I think that the negotiations are sort of to provide longer term care for kids and parents.

SMERCONISH: Michelle, thank you.

Alan, thank you.

It's a fascinating issue. And we appreciate your time.

HACKMAN: Thank you.

TUERKHEIMER: Thank you.

SMERCONISH: What are your thoughts? Tweet me @smerconish or go to my social media during the course of the program. I'll read some responses throughout the course of today's show.

What do we have, Catherine, from Twitter?

"While it may not make political sense, if it goes to court, the final bill will be 10 times greater."

Well, Bobby Tyson Space Laser Commander, I think you tweeted at me just so that I would read your handle. That's one perspective. I mean that's the perspective of "The Washington Post."

"The Washington Post" says that $450,000, their words, would be jaw- dropping, but you're rolling the dice, and the post envisions how it could be a million dollars per party. Go look at the comments though, and there's a mindset out there of among many others who say wait a minute, in their perception, I know that if you're pursuing asylum, you know you're not necessarily doing something illegal. But the sentiment among some of us is they were coming here illegally, why are we rewarding that illegal conduct?

Give me one more if we've got time for it.

Yeah, I love this issue, too.

"We should settle the illegals in their own country. Not pay them to break our laws."

Well, there you go. I mean and thank you TC, for setting up the flip side of the argument. There's the other mindset. The mindset of send them back and why are we writing them a check? Final word, I'll offer for now, I hope at least in the short term, the kids who are here and still under our charge are being provided the emotional and mental health services that they require.

This is the survey question at my web site. Go to smerconish.com and answer.

"Should the Biden administration pay money damages to settle litigation brought by immigrant families separated during the Trump administration?"

Up ahead. Monday will be the closing arguments in the trial of teenaged gunman Kyle Rittenhouse. He took the stand to explain his claim of self-defense. Will the jury see him as a patriot? Taking a stand against lawlessness? Or as a vigilante? I'll ask the former Wisconsin district attorney.

Plus, what makes Curtis Means different from all other babies. Because he just made the Guinness Book for the most premature birth to survive at 21 weeks and one day. What might this mean in the abortion conversation about the resuming in the Supreme Court? I've got thoughts.

(COMMERCIAL BREAK)

[09:21:45]

SMERCONISH: Monday will be closing arguments in the high-profile trial of Kyle Rittenhouse.

Joining me now to discuss is Paul Bucher former district attorney in Waukesha County, Wisconsin.

Counselor, thanks so much for being here. When the trial first got underway, you were a guest on my radio program. And I appreciate that. And you offered the opinion that you thought that the prosecution perhaps had overcharged. Now, here we are at the end, is that still your view?

PAUL BUCHER, FORMER DISTRICT ATTORNEY, WAUKESHA COUNTY: Well, I think it's absolutely, because the government has now requested what we call lesser-included or less serious offenses which tells me that they don't have faith in their case, that the evidence really that came in has not supported their initial charges. So, they want to have a court consider lesser degrees of homicide, or lesser degrees of criminal activity, which just screams -- I mean I've done that, too. So, I mean I've done that as the prosecutor, in Waukesha, and it just tells me, clearly, that they overcharged it, and the evidence that went in really was not very favorable to them.

SMERCONISH: There is a media narrative, and I'm wondering if you share it, that the case has gone in poorly for the prosecution, as you were just intimating, and that the defense has a strong hand. Apart from the gun issue, because I want to come back to that in a moment. Do you think this is set now for him to be acquitted on the most serious of charges? BUCHER: No. I think the defense does have a strong case but not a great case. I believe that he'll be convicted. Sometimes it's just a matter of the number of charges, you throw so much against the wall and you see what sticks. We have two people dead. I would be shocked that the jury would let him just walk away from this.

I believe the issue is going to boil down to, did he have a subjective lethal to use force. Absolutely. That he have -- was that reasonable, I believe most individuals would say it was. Then we get to the use of force -

SMERCONISH: OK. And -

BUCHER: Was that - yes.

SMERCONISH: Yeah. I want you to explain this. This is really important. So, there is a two-pronged test under Wisconsin law, when one is asserting a self-defense. What exactly are those in lay terms and then tell me how it applies to this case?

BUCHER: First, you have to subjectively really believe that you had to use self-defense and that's why the defendant testified. He had to really verbalize to the jury that he thought his life was in danger. And I think he did that very well.

The second prong is regardless of what he says, for the average reasonable person, that is one the jurors believe that under those circumstances, all of it, you can't view it in a vacuum, that his belief was subjectively reasonable. And I think in most accounts, it was.

Then you get on to was, the use of force excessive, and I believe that's where the defense is going to be falling down, that shooting and killing Mr. Huber, for instance, I believe the jury is going to find that was excessive force. So, those are two prongs, but you can't forget about the use of force.

[09:25:00]

SMERCONISH: Right. On the first prong of that two-prong test, I want to roll a short clip from Kyle Rittenhouse, taking the stand in his own defense. Roll it.

(BEGIN VIDEO CLIP)

KYLE RITTENHOUSE, DEFENDANT: Mr. Rosenbaum. Mr. Rosenbaum was now running from my right side, and I was cornered from in front of me with Mr. Ziminski, and there were, there were, there were people right there.

(END VIDEO CLIP)

SMERCONISH: Was that compelling, that he himself believed that he faced bodily harm unless he used deadly force?

BUCHER: Absolutely. That meets the subjective prong. That's why the judge's honesty going to allow it. And I think under the circumstances that existed around him, which we can't ignore, objectively, I think it was reasonable.

But that's why the first degree of intentional homicide that the government has asked is going to be -- I believe the judge is going to allow second degree of intentional homicide because under the Wisconsin law, if the use of force is excessive, it's automatically downgraded to second degree intentional homicide, which goes from life imprisonment to 60 years.

SMERCONISH: Mr. Bucher, I know you know all of the players here, one more clip if I may, I want to ask about the lawyering, roll that tape.

(BEGIN VIDEO CLIP)

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: Don't get brazen with me. You knew very well -- you know very well that an attorney can't go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So, don't give me that.

(END VIDEO CLIP)

SMERCONISH: How big of a misstep was made by the prosecutor in this case?

BUCHER: I think it was two, and to be honest, I think the biggest misstep that we didn't play was commenting on the defendant's silence post-arrest. That is an absolutely out of bounds no-no and that could result in a mistrial or an overturn on appeal.

I think the judge had it with the prosecution trying to do a back door. The judge had ruled move on. And I was just surprised when the prosecutor came back after lunch, that they just didn't change their strategy. And when you're a litigator, you got to bob and weave say oh, man, this one is not working, it's really ticking off the judge, it better need change. And he didn't. They just continued to hammer away.

So, Judge Schroeder is a good judge, likes to maintain his courtroom, don't screw with him, be prepared, and if he rules against you, you just got to move on. And I believe this case is also overtried.

I just was amazed, they charged like the curfew violation, it's like you got to be kidding me. Really? Seriously? This is a homicide case.

If I were in the prosecutor chair, I would have charged three counts. Three counts. One count of homicide. First degree. One count of homicide, first degree. And one count of attempted homicide, first degree. And that's where I would have put all of my marbles.

SMERCONISH: OK. Bottom line I'm hearing from you, probably not successfully prosecuted on the most serious of charges but he's a long way from being acquitted on everything. Counselor, thanks so much for being here, I really appreciate it.

BUCHER: Thanks, Michael. I appreciate you having me on.

SMERCONISH: Let's see what you're saying on my social media.

From Twitter, I think this comes in, what do we have?

"Whacko prejudiced judge, sympathetic, well-rehearsed accused. What could go wrong?"

Hunt, it's great to see that you're not dug in in your view. I don't know quite what to say to that.

Bring me the second tweet if I may. What do we have?

"Kyle is going to walk. And that action is going to green light vigilante justice in a way that we've never seen before. Be prepared to see more guys living out their AR-15 fantasies. This is not good."

Robtax, I don't think that's -- I think that Counselor Bucher who you just heard from, who brings you know 30 to 40 years of experience, trying cases, in Waukesha, has his finger on the pulse. I believe that the case has been better tried by the defense than the prosecution. That goes without saying.

But in just watching a lot of the comments, and you know, we'll see how it unfolds this week, and just watching a lot of comments made from legal pundits and so forth, I think that there is this perception out there, and you have it.

That this kid is about to walk. And I don't think that is necessarily the case.

Are they going to get him for the most serious? It's a murder case, they called it homicide.

Are they going to get him for that? No.

That two-pronged test was met. But the level of force that he used, and the gun issue as well, I think are still problematic for Kyle Rittenhouse. So, we will see.

Here's the real shame. What a shame that in this country, people like rooting for an outcome based on their party registration. That's asinine.

[09:30:00]

Make sure you're going to my Web site at Smerconish.com. Should the Biden administration -- this is the survey question this week. Should the Biden administration be paying money damages to settle litigation brought by immigrant families who are separated during the Trump administration? A lot of voting, but I want you to weigh in.

Up ahead, a new poll asked Americans about eight false COVID-19 statements and found belief in misinformation. It's rampant, and worse, if people trusted certain news outlets. I wonder which ones. I will drill down on the numbers. Also, I long believed that medical science advancement poses a greater risk to the abortion status quo than any court decision. And this new Guinness Book of World Record holder born nearly 19 weeks early is just the kind of story that I've been thinking of. And I will explain.

(COMMERCIAL BREAK)

[09:35:30]

SMERCONISH: This week, a baby made the Guinness Book of World Records, and provided living proof of a long-held belief of mine, namely, that medical science advancement poses a greater risk to the abortion status quo than any court decision.

On July 5th, 2020, Curtis Zy-Keith Means was delivered at the hospital of the University of Alabama, at a gestational age of 21 weeks and one day, weighing 14.8 ounces, less than a pound. Curtis took over the Guinness title of the earliest premature baby to survive. Sadly, the twin sister delivered alongside him died one day later.

Their original due date had been November 11, 2020. A full-term pregnancy is typically 40 weeks making Curtis almost 19 weeks premature. Curtis was on a ventilator for three months and spent 275 days in the hospital. On April 6th of this year, Curtis was judged fit enough to go home. He's now 16 months old. And I think young Curtis's survival has legal significance in the ongoing battle over abortion.

As you know, the issue's back on the docket. The Supreme Court just heard arguments about a Texas law, very uniquely written, that would ban abortion as early as six weeks of gestational age. It was written in such a way to withstand challenge because enforcement is left to private citizens.

The argument didn't go well for those who wished to limit abortion rights. And I think there's zero prospect of the Texas law withstanding court scrutiny. But looming on the horizon is a Mississippi case called Dobbs which would ban abortion beyond 15 weeks. Dobbs will be argued on December 1st, which means we'll get the decision next spring when we're in the throes of the 2022 midterms.

It was 1973 when the court's Roe versus Wade decision came down establishing the principle that your right to an abortion is dependent upon viability which is seen through the gestational age of the fetus, generally described up to the point of viability, there is a right to abortion.

I've always said, I've always thought that this idea is predicated on bad law where in the 14th Amendment, am I supposed to turn for some discussion about the point of viability? The answer is nowhere.

So legally speaking, I've always had a difficult time justifying the Roe decision. But practically speaking, it's always made a great deal of sense to me.

In 1992, we had the Casey decision which says there can be regulation of abortion pre-point of viability, but it can't cause undue burden to be placed on a woman's right to an abortion. So, abortion law in the United States is all about when the fetus is viable outside the womb, that's generally agreed upon at about 24 weeks. But Curtis Means was viable outside the womb with a lot of assistance at 21 weeks.

Let me be clear. I am not saying -- I am not saying that the law is going to completely shift because of this one Alabama infant. But his case underscores and reaffirms my belief that medical science and advance is definitely going to slide that scale from 24 weeks.

Will it ultimately go to 21 weeks? I don't know. Will it go earlier? I probably won't live to see that. But I do think that medical science will ultimately have more to say about abortion than any court case.

Still to come, a new study from Kaiser Health finds a troubling number of Americans believe COVID misinformation like, you can get COVID-19 from the vaccine, or that the vaccines contain a microchip, and that there is a correlation, they find, between such beliefs and the person's trusted news source. So, what does this mean for those trying to communicate accurate information?

And please go to my Web site at Smerconish.com and answer this week's survey question. I can't wait to see the result. What should the Biden administration do? Should they pay money damages to settle litigation brought by immigrant families separated during the Trump administration?

(COMMERCIAL BREAK)

[09:44:05]

SMERCONISH: Belief in COVID-19 misinformation is rampant and there is a strong correlation based on which news outlet people trust. That's the finding of a new study by the Kaiser Family Foundation. It's called "COVID-19 Misinformation is Ubiquitous."

Kaiser gave respondents eight false statements about COVID to gauge what people believe. Here are those false statements.

First, the government is exaggerating the number of COVID-19 deaths. Next, pregnant women should not get the COVID-19 vaccine. Deaths due to the COVID-19 vaccine are being intentionally hidden by the government. The COVID-19 vaccines have been shown to cause infertility. Ivermectin is a safe and effective treatment for COVID- 19. You can get COVID-19 from the vaccine. The COVID-19 vaccines contain a microchip. And the COVID-19 vaccines can change your DNA.

[09:45:00]

Again, all false. Seventy-eight percent of those polled believe or are unsure of at least one of the false statements. Nearly a third believed at least four of the eight.

But look at what happens when you sort respondents by which news sources they trust. Among those who trust Fox News, 36 percent mistakenly believe or are unsure about at least four of eight false statements. One America News, 37 percent mistakenly believe or are unsure about at least four of the eight false statements. Newsmax, that number is 46 percent.

Now compare those numbers to those who trust information from CNN, MSNBC, network news, NPR and local television news. That number is much smaller. Only 11 to 16 percent who mistakenly believe or unsure about at least four of the eight false statements.

Joining me now is Liz Hamel, Vice President and Director of Public Opinion and Survey Research at the Henry J. Kaiser Family Foundation. Why do you say correlation and not causation? Why can we not say the reason those people are so mistaken is what they're told in those news outlets?

LIZ HAMEL, VICE PRESIDENT AND DIRECTOR OF PUBLIC OPINION AND SURVEY RESEARCH, KAISER FAMILY FOUNDATION: Yes. That's a great question, Michael. You know, that wasn't something we were able to tease out in our survey, because we didn't ask people if they heard these things on those specific news outlets. It could be that people who watch those news outlets are hearing this misinformation in other places, or that they just happen to be people who are more skeptical, and tend to believe things that they see, you know, from other sources.

SMERCONISH: I know that when I talked about this on radio, I got pushback from some in the audience about the eight statements. I'm going to put the eight back up on the screen. I don't know, Liz, if you are able to see them but you certainly have them all memorized.

But the first among them, the government is exaggerating the number of COVID-19 deaths. Immediately I had telephone callers who said, "Well, the government is." You know, they are calling everything a COVID death when it is not a COVID death. What's your response to that?

HAMEL: Yes. So, we did test a range of statements that included things that were blatant conspiracy theories like the microchips, and they included things that were twisting scientific concepts like the vaccines can change your DNA. This was obviously the one that led to the most confusion for people, and people were most likely to believe it. And this is a statement that has often been used to sort of downplay the seriousness of the pandemic.

You know, first of all, when it comes to this, the federal government is not in charge of recording whether a death is a COVID death or not. That is happening with physicians and medical examiners all around the country and being reported to the federal government. The CDC does provide guidance and explicitly says, you know, it shouldn't be considered a COVID death if COVID did not directly cause or contribute to the death.

But, you know, there's no evidence that the government is deliberately inflating those numbers. And in fact, many experts would say that if you just use the death count from COVID you're sort of underestimating the true total of the pandemic, because if you look at something like excess deaths, so the number of deaths we've had over the past year and a half, compared to what we would see in a normal year, the numbers are actually much higher.

SMERCONISH: It's really stunning when you look -- let's put on the screen the media outlet continuum so that you can see Newsmax, One America, Fox, local, NPR, et cetera, et cetera. I mean, it's amazing that there seems to be this relationship about how more inclined you are to believe misinformation, depending on whether those first couple of sources are a source that you trust and believe. Respond.

HAMEL: Well, you know, we have found that people -- so people who watch those conservative news sources tend to identify as Republicans. And we found that Republicans are much more likely to believe that the news media has exaggerating the seriousness of the pandemic. And so that goes along with some of the pieces of misinformation that we trusted, or that we tested, and so you know, I think that's part of what is behind that correlation that we're seeing there.

SMERCONISH: I know that there are other ways to slice and dice the data. Party affiliation, difference between those who are vaxxed and unvaxxed, rural versus more urban respondents. So, it's not just the media. But man oh, man, that was really a stunning take-away.

Liz, thank you so much for being here.

HAMEL: Thanks for having me.

SMERCONISH: Still to come, more of your best and worst social media, and the results of this week's survey question. Have you voted yet? Go to Smerconish.com and tell me, what should the Biden administration do? Should they pay money damages to settle litigation brought by those immigrant families who were separated during the Trump administration?

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[09:54:22]

SMERCONISH: So, Catherine, my producer, just asked me, you know, through the old IFB to predict the outcome of this. I'll tell you what I told her on the survey question. Should the Biden administration -- should the Biden administration pay money damages to settle litigation brought by immigrant families separated during the Trump administration? I said, "I'll bet CNN audience says 55 percent, yes, they should." That would be my guess. I'm about to be embarrassed, perhaps.

But I also said to her, "In a national survey, I'll bet it's 60/40 the other way. I'll be it's 60/40, no, the other way." But for CNN audience -- go ahead, embarrass me, Catherine. Put it up on the screen. That is my prediction and I'm sticking to it.

[09:55:00]

Oh, I'm surprised by that. OK. Wow. Should have kept my mouth shut.

Should the Biden administration pay money damages to settle litigation brought by immigrant families -- 60 -- I'll call it 60/40 say no. And you know they're watching at the White House. You know that they are because -- how do we know they're watching? Because last weekend the president said, oh, I heard some guy on TV say the sausage got made. Come on, Mr. President, you know who that was.

Here's some of the social media that came in during the course of the program. What do we have? I'm blathering on too much. Come on, let's go. No social media?

I despise Trump. But if the Biden administration pays even a dollar, I promise to vote for Trump in 2024.

Dean, I know that people like you are out there. I am out of time. I wish that I weren't. More time for social media, don't you think? I'll see you next week.

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